Land Use and Local Government Law and Litigation

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A Carelessly Written and Probably Wrong Interpretation of Accessory Uses at Turnberry - Read and Be Careful [Updated]

NOTE - this post has been updated based on information provided by a knowledgable attorney - see below.

The 3d DCA held that Turnberry Isles condo can throw a Pritiken Lifestyle center out of the commercial portion of the development because it is not a principle use. It interpreted (but did not provide) the zoning regulation adopting the zoning ordinance, which allowed (btw) two hotels, restaurants and a commercial marina, as well as a commercial area. Here's the opinion -

In holding that the center is not permitted, the court provided this VERY troubling language:

it clear that the principal use of the Turnberry development, including the
Association's property, is as a luxury, multi-family, planned residential
community served by various accessory (or ancillary) uses. Thus the luxury
residential units comprise the principal use, and any additional uses on the
property must be ancillary to (or accessory to) the principal use. That is to
say, any use on the subject property must benefit the property residents and not
be available to the general public at large.

Let's just say that 1) there's no way that a hotel meets this test - so unless there's different language in theordinance that addresses the hotels, the court's interpretation is simply silly. Let's also just say that unless the ordinance language SPECIFICALLY included provisions not cited that limit the uses as described, the court's interpretationn is overbroad in a scary, scary fashion.

Local governments all over Florida are adopting mixed-use PUD ordinances intended to provide commercial nodes in or adjacent to residential development. The trip capture and other functions of these commercial nodes will not work if they are limited to uses that "are not available to the general public at large." Under this view of PUDs (not to mention accessory uses), a hotel restaurant can't serve the general public (which violates federal law), the copy shop in an office building can't serve users outside the office, and in most cities, buildings couldn't provide paid parking for patrons who then left the premises. And presumably, if a PUD's principle use was commercial, with ancillary residential, the residential component could only be used by owners, employees or customers of the commercial uses. It's ridiculous.

I only hope that the parties request clarification and that the court provides an opinion that cites specific provisions of the particular ordinance that supports its view or modifies the opinion so as adopt a proper view of the relationship between residential and commercial uses in a PUD.
After posting the original version, which referred to the development as (and assumed the development was) a PUD, I got the following message from Stan Price - a land use attorney who was formerly with Dade County and probably knows the background:

your interpretation of the 3rd dca opinion does not accurately reflect the
facts of the case. The original zoning approval in the 1970's was prior to the
PUD provisions being drafted. The extremely limited language of the zoning
resolution and sudmitted covenants restricted the uses to ancillary and
incidental uses which are supplemental to the luxury high rise
development. By contrast, PUD and other mixed use districts recognize this
distinction and permit totally independent uses within the district.

Stan's info indicates that there are specific provisions of the ordinance, not cited by the opinion, that justify the decision. I would still hope that the court would grant a rehearing or clarification and cite the specific provisions of the ordinances and covenents that explain the decision, so as to avoid it being misinterpreted .


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