Bal Harbour Village v. City of North Miami
| Decision Date | 17 April 1996 |
| Docket Number | No. 94-2841,94-2841 |
| Parties | 21 Fla. L. Weekly D912 BAL HARBOUR VILLAGE, a municipal corporation organized and existing under the laws of the State of Florida, Appellant, v. CITY OF NORTH MIAMI, a municipal corporation organized and existing under the laws of the State of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Dade County, Harold Solomon, Judge.
Floyd Pearson Richman Greer Weil Brumbaugh & Russomanno and Gerald F. Richman and Robert J. Borrello, Miami, for appellant.
David M. Wolpin, City Attorney, North Miami, for appellee.
Before SCHWARTZ, C.J. * , and COPE and GODERICH,* JJ.
Bal Harbour Village appeals a final order dismissing its lawsuit against the City of North Miami. We affirm.
Bal Harbour filed the instant lawsuit against the City of North Miami, seeking to prevent North Miami from building an open-air amphitheater near the shores of Biscayne Bay. Bal Harbour Village is located, at its nearest point, 7,600 feet across Biscayne Bay from North Miami. Concerned primarily about the possibility of excessive noise from the open-air amphitheater, Bal Harbour Village opposed the project. Bal Harbour and North Miami entered into a settlement agreement which established a procedure for assuring that noise emitting from the amphitheater would be controlled at acceptable levels. Thereafter Bal Harbour brought suit, contending that North Miami had breached the settlement agreement. From dismissal of its second amended complaint, Bal Harbour appeals. 1
On December 8, 1992, the North Miami City Council adopted Ordinance 888, which rezoned a 106-acre tract of land from Public Use (P.U.) to Public Use/Planned Unit Development (P.U./P.U.D) to permit the development of a city-owned performing arts amphitheater facility. The amphitheater will be located east of Biscayne Boulevard between Northeast 135 Street and Northeast 151 Street, near the North Campus of Florida International University. The amphitheater will have a capacity of 26,000 people and parking for up to 4,500 cars. Ordinance 888 also granted a conditional use permit. The facility is to be constructed and operated by Performing Arts Management of North Miami, Inc. ("Operator").
Ordinance 888, the supporting studies, and the agreement with the Operator all address the question of noise standards. Sound leaving the amphitheater is not to exceed the level of 50 decibels. Amplified sound must be directed toward the commercial and industrial areas situated to the northwest of the amphitheater, which is in the opposite direction from Bal Harbour. Ordinance 888 allows the City to establish operational and noise level limitations and performance standards for the amphitheater. Noise monitoring may be conducted by North Miami at the Operator's expense. North Miami reserves the right, in the event the noise standards are not met, to restrict the operating hours of the facility, or to void the conditional use permit. Additionally, the Operator is required to design the amphitheater
so as to be able to structurally enclose the covered seating area in the event that operation of the Facility fails to comply with the sound and noise standards provided pursuant to this ordinance. Operator shall implement the enclosure plan designed as a remedy if and when it has been determined by City (based upon study and advice provided to the City Council by the City's independent Noise Consultant) that all other sound mitigation remedies implemented by Operator have failed to bring the sound into compliance with the terms hereof.
Ordinance 888, § 3.III.G. (3).
Bal Harbour appeared at the North Miami City Council meeting and presented testimony in opposition to the enactment of Ordinance 888. The Ordinance was nonetheless adopted.
On January 7, 1993, Bal Harbour filed a statutory "verified complaint" with North Miami, contending that Ordinance 888 was inconsistent with North Miami's Comprehensive Plan. See generally §§ 163.3161-.3215, Fla.Stat. (1993). Section 163.3215, Florida Statutes, authorizes certain litigants to challenge the consistency of a development order 2 with a city's duly adopted comprehensive plan. Id. § 163.3215(1), (3)(b). Prior to instituting any lawsuit, "the complaining party shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the complaining party." Id. § 163.3215(4). This "verified complaint" must be filed with the local government "no later than 30 days after the alleged inconsistent action has been taken." Id.
Bal Harbour's timely "verified complaint" asserted that Ordinance 888 had been enacted contrary to the Intergovernmental Coordination Element of North Miami's Comprehensive Plan. Bal Harbour contended that noise from events at the facility would carry across Biscayne Bay and into Bal Harbour, thus adversely affecting the quality of life there. Bal Harbour also expressed concern about adverse environmental impact on Biscayne Bay, which Bal Harbour shares in common with North Miami. Finally, Bal Harbour asserted that the parking requirements for the amphitheater exceeded the threshold for a development of regional impact ("DRI"), see § 380.0651(3)(b)1.a., Fla.Stat., and that the amphitheater project had not undergone the review required for a DRI. 3
On February 23, 1993, North Miami and Bal Harbour entered into a settlement of their dispute. The settlement was embodied in Resolution No. R93-14 ("the Settlement Resolution"), adopted by the North Miami City Council. The Resolution recited that North Miami had retained independent consultant Dr. Clifford Bragdon to undertake "the necessary noise study and review to assure that the [amphitheater] facility will be designed, built and operated in such a manner as to assure that there will be no adverse noise impact on any residential communities in the vicinity...." The resolution recited that "Bal Harbour Village has retained a noise consultant, Dr. Stanley Dunn, and has authorized Dr. Dunn to participate in the work of Dr. Bragdon as set forth in the Work Plan described by Dr. Bragdon at the meeting of February 8, 1993...." The Settlement Resolution provided in substance that any areas of technical disagreement should be resolved if possible by discussion between Dr. Dunn and Dr. Bragdon. If any technical issues could not be resolved by discussion of the two of them, the issue was then to be resolved if possible "by the binding determination of an independent scientist to be mutually selected by Dr. Dunn and Dr. Bragdon."
Bal Harbour agreed that it would not institute or support any litigation against North Miami "pending completion of the above referenced Noise Study Work or the issuance by the City of North Miami of a building permit for the construction of the Amphitheater Facility...." In return, North Miami recognized that Bal Harbour could file a "verified complaint" under section 163.3215 when North Miami issued a building permit for the amphitheater, and if the "verified complaint" was not resolved, then Bal Harbour could proceed with a lawsuit in accordance with section 163.3215. North Miami further agreed that it would waive any defense that Bal Harbour was estopped, or bound by res judicata, by reason of allowing Ordinance 888 to become final.
In the meantime, other litigants filed lawsuits seeking to stop the amphitheater project. Pichette v. City of North Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Abramson v. City of North Miami, 634 So.2d 632 (Fla. 3d DCA 1994). In Pichette, one citizen of Bay Harbour Islands and two citizens of North Miami Beach filed suit contending that they would be adversely affected by noise and other effects from the amphitheater project. In November 1993, North Miami moved for summary judgment and filed an affidavit executed by Dr. Bragdon in support of the proposition that there would be no adverse noise effects on the plaintiffs in the Pichette litigation.
Against the advice of its legal counsel, Bal Harbour took the position that the execution of the affidavit by Dr. Bragdon in the Pichette litigation indicated that Dr. Bragdon had prejudged the results of the noise study, which was not yet complete. Bal Harbour asserted that by obtaining and filing the affidavit of Dr. Bragdon in the Pichette litigation, North Miami had breached the Settlement Resolution. Bal Harbour took the position that the claimed breach by North Miami relieved Bal Harbour of any further obligations under the Settlement Resolution, including the obligation to refrain from participating in any litigation against North Miami. Since the trial court had entered summary judgment in favor of North Miami in the Pichette litigation, Bal Harbour voted to provide funding for the appeal in Pichette.
Next, on January 11, 1994, Bal Harbour filed the instant lawsuit against North Miami. Bal Harbour claimed that North Miami had breached the settlement agreement; that Ordinance 888 contravened the North Miami Comprehensive Plan, the North Miami Zoning Code, and should be set aside under Section 2-11.1 of the Metropolitan Dade County Code; that the proposed amphitheater would constitute a nuisance; and that Bal Harbour was fraudulently induced to enter into the settlement agreement. The trial court granted motions to dismiss all claims. Bal Harbour has appealed.
We affirm dismissal of Bal Harbour's claim under section 163.3215, Florida Statutes. In that claim (Count II of the amended complaint) Bal Harbour asserted that Ordinance 888 was inconsistent with the North Miami Comprehensive Plan.
Section 163.3215 specifies that in order to challenge the consistency of a development order with a comprehensive plan, the litigant must first file a "verified complaint" with the appropriate local government. Id. § 163.3215(4)...
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