Land use attorney states 3-2 vote invalid

A prominent attorney in land use law has informed Mayor Phil Stoddard and South Miami Commission members that a majority three votes out of five to amend a city zoning district is invalid and conflicts with the city charter.

Attorney Nancy E. Stroud of the Lewis Stroud & Deutsch law firm of Boca Raton has written a letter dated Sept. 1 that explores the legal issues inherent in land development ordinances to reach her conclusion, after “concerned citizens” urged her to review passage of the controversial ordinance.

She states that a unanimous five of five votes is required to effect such change and, if so, that would strike down a 3-2 action of Aug. 18 when Mayor Stoddard together with Commissioners Robert Welsh and Josh Lieberman to liberalize the City Land Development Code, permitting the potential to build a new South Miami City Hall with private development uses.

A founding member of the legal firm and head of its Land Use Department, Attorney Stroud’s practice concentrates on land use and development law with an emphasis on local government representation, according to the firm’s web site.

Basically, she interprets the Transit- Oriented Development Districts applied to the TODD (PI) Public/institutional zoning district to permit private development of a city hall as limiting rather than permitting expansion.

She has stated that the City Charter requires five affirmative votes to amend land use and development regulations “in any manner to make them less restrictive.”

In her opinion, wording for the downtown zoning district indicates permitted uses are based on those for all other TODD districts, concluding that allowing “governmental facilities” is essentially a restrictive wording.

Pointing out that a Merriam-Webster dictionary defines “restrictive” as “serving or tending to restrict,” Atty. Stroud concludes that any change in the land use document as might be allowed under the 3-2 permissive vote becomes an “expansion” and is thus invalid. A commercial development (“such as a private retail store) as proposed in a TODD (PI) District would be prohibited, she stated.

In reviewing the argument that five votes were not required because the 3-2 vote was a “correction” of the existing statute, Ms. Stroud noted there is “no exception” in the City Charter for “corrections” creating an invalid vote “on that basis alone.”

“The plain language of the Charter does not allow additional uses to be incorporated in the TODD (PI) District without the required 5/5 vote, and the Ordinance was not required to be adopted to bring the Land Development Code into consistency with the Comprehensive Plan,” she concluded.

Based on her interpretation, she has requested that the Mayor and City Commission “honor the provisions of the Charter and reconsider the Ordinance, bringing it back for consideration by the City Commission for the required 5/5 vote.”

Her opinions counter to those of City Atty. Thomas Pepe who ruled the 3-2 Commission vote as legal, and she has sent a copy of her letter to his attention. The “concerned citizens” referred to as engaging Atty. Stroud’s services had not been identified at press time.

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