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Letter to Commissioner Solis – William Schuman

savevanderbiltbeach / Blog  / Letter to Commissioner Solis – William Schuman

Dear Commissioner Solis:

I participated in the Zoom call you hosted on February 16, 2021 with representatives of many of the groups who oppose Stock’s One Naples project. I write to emphasize an additional, legal, argument that did not easily lend itself to discussion in the February 16 Zoom call. Stock’s proposal constitutes unlawful Spot Zoning. As you are a fellow litigator (I have been practicing for 42 years), I am hopeful that the controlling Florida case law and statutes described herein concerning Spot Zoning will resonate with you. Spot Zoning is the elephant in the room, as it condemns Stock’s proposed development.

The Florida Supreme Court prohibited Spot Zoning in Parking Facilities v. City of Miami Beach, 88 So.2d 141 (1956). The Florida legislature codified this prohibition in Florida Statutes, Section 163.3194(3)(a). The prohibition is further codified in Policy 5.6 of the Future Land Use Element of the Collier County Growth Management Plan.

Spot Zoning is the name given to the piecemeal rezoning of small parcels of land to a greater density, leading to disharmony with the surrounding area. Spot Zoning gives preferential treatment to one parcel at the expense of the zoning scheme as a whole. See Southwest Ranches Homeowners Assoc. v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). Unlawful Spot Zoning creates a small island of property with restrictions on its use different from that of surrounding properties, solely for the benefit of a particular property owner and to the detriment of the community or without a substantial public purpose. Allapattah Community Ass’n Inc. of Florida v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980); City Commissioner of the City of Miami v. Woodlawn Park Cemetery Co., 553 So.2d 1227, 1240 (Fla. 3d DCA 1989). The determination of Spot Zoning involves an examination of (1) the size of the spot; (2) the compatibility with the surrounding area; (3) the benefit to the owner and (4) the detriment to the immediate neighborhood. Parking facilities, Inc. v. City of Miami Beach, 88 So.2d 141 (Fla. 1956); Dade County v. Inversiones Rafamar S.A., 360 So.2d 1130 (Fla. 3d DCA 1978).

In its proposal, Stock asks, solely in respect to its parcel, for (1) density that is double the density allowed by the current zoning law, (2) building heights that are double to triple the permissible building heights, (3) open space that is half of that required by the current zoning law, and (4) setbacks that are one-quarter of the setbacks currently required. Stock’s proposal is incompatible and inconsistent with, and in no way complementary to, the comprehensive plan, the current zoning rules, and the pertinent surrounding neighborhood. It seeks to create an impermissible “square peg” of land in an incompatible “round hole” community, to the great harm of, and with no benefit to, the entire community, for the sole benefit of the developer. Stock’s proposal is the poster child for unlawful Spot Zoning.

Stock cannot properly rely on nearby properties in neighboring zones such as Bay Colony or Pelican Bay to create a purported compatibility that does not exist. Allowing comparisons with properties in other zones would impermissibly import a neighboring zone’s rules into a zone that has different zoning rules, just because it is nearby. Plainly, that would make Florida zoning laws meaningless. In Machado v. Musgrave, 519 So. 2d 629 (3d Dist. 1987), the court prohibited such a comparison, holding that “a comprehensive land plan legislatively sets a zoning norm for each zone,” not a single piece of property. One of the reasons for this rule, said the Machado court: “to avoid spot zoning.” Id. Collier County Land Development Code (“LDC”) Section 1.05.01F confirms this point. It provides: “Each zoning district has its own purpose and establishes its own density and intensity regulations.” Pelican Bay and Bay Colony provide particularly poor comparisons to the Vanderbilt Beach neighborhood in issue here, as they are vastly different communities with vastly different regulatory controls and restraints.

Not surprisingly, the law does not allow Stock to avoid the Florida prohibition on Spot Zoning by separately seeking an amendment to the Growth Management Plan (“GMP”) that addresses only Stock’s parcel. As the Court in Machado explained, the prohibition on permitting a GMP amendment for a single piece of property “is the only way to (1) regulate and maintain land use by zones; (2) make individual zoning changes . . . conform to a legislated plan; and (3) avoid arbitrary spot zoning change that permits the use of individual parcels to depart from a plan.” Florida Statute 163.3194(1) confirms this point, providing that amending the GMP can only be done “as to the area of the entire zone,” not a single piece of property within the zone as sought by Stock. Indeed, the Court in Machado explained that under Section 163, local comprehensive plans “are not zoning laws.” They are “a limitation on a local governments . . . zoning powers.” Moreover, LDC Section 9.04.03 allows a zoning variance only if it is the minimum variance that will make possible the reasonable use of the land. Stock’s proposal plainly does not satisfy that requirement.
Importantly, the stakes here are far bigger that the One Naples project currently in issue. If the Commissioners permit Stock’s current proposal to proceed, the Commissioners may render themselves powerless to stop the next project, and the next one after that, going north on Gulf Shore Drive. Currently, there is nothing in the neighborhood comparable to One Naples. So Spot Zoning flatly prohibits Stock’s proposal. But if the Commissioners allow One Naples to proceed, the next developer on Gulf Shore Drive will use One Naples as a comparable, and the Commissioners may have no principled basis for stopping that next proposal, and the next one, and the one after that. Right here, right now, the Commissioners will be condemning the Vanderbilt Beach and surrounding neighborhoods if they approve One Naples as currently proposed.

Stock’s requested variances would benefit only Stock and would disregard entirely the rights of the residents of the area and the general public. Stock’s proposal would not create any resources useful to or needed by those who live in the area. To the contrary, the proposed development would do nothing more than accomplish an arbitrary, capricious, unlawful, and uncompensated wealth transfer of property from the thousands of residents who built and enjoyed their neighborhood over many decades and relied on the integrity of the current zoning rules, to a single developer. Indeed, in the face of the crescendo of community opposition to Stock’s proposal and the Planning Commission Staff’s recommendation against Stock’s proposal in its current form, the Collier County Planning Commissioners declined to approve Stock’s proposal.

Nor can Stock plausibly claim that it would be unfair to deny its requested zoning variances. A developer who purchases land subject to existing zoning limitations accepts the risk that the limitations will remain in place. Stock knew when it purchased the land that its proposed project is prohibited by the zoning rules currently in force. The Planning Commission Staff Report dated September 24, 2020 agreed in 20 places that Stock’s proposal is incompatible and inconsistent with the Growth Management Plan. The Staff opined that Stock’s project could be approved only if its scope is dramatically reduced to comply with the current requirements for height, density and setbacks.

Importantly, Florida Courts give no deference to the Commissioners’ judgment where Spot Zoning is in issue, because it is an issue of law. As explained in Machado, a court must review de novo, and with “strict scrutiny,” not deference, the Commissioners’ decision. A reviewing court would surely find Stock’s proposal to be prohibited, unlawful Spot Zoning.

Attached hereto is a copy of an October 12, 2020 letter by my former law partner, Michael Austin, who represents a fellow member of the opposition to Stock’s proposed development, Ken Melkus. In his letter, Mr. Austin amplifies on the law of Spot Zoning and agrees that Stock’s proposed project constitutes unlawful Spot Zoning.

As you consider Stock’s proposal, please be guided by your sacred duty to protect the residents of these communities. A tasteful, modest development of appropriate scale, consistent and compatible with current zoning requirements, can be an enhancement to the area. But allowing Stock to undertake a project with anything close to the currently proposed scope would impermissibly inflict substantial damage to the people that the Commissioners are duty bound to protect. Stock is asking the Commissioners to allow Stock to break the law. Under Florida law, Stock’s request must be rejected.

William P. Schuman
8787 Bay Colony Drive
Apt. 1804