A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE ADMINISTRATION'S AS WELL AS THE LAND USE AND SUSTAINABILITY COMMITTEE'S RECOMMENDATION (FROM ITS MAY 26, 2020 MEETING), AND APPROVING OPTION 1 FOR THE LOCATION OF THE STORMWATER TREATMENT SYSTEM ("SWTS"), AND AUTHORIZING THE ADMINISTRATION TO INSTALL THE SWTS IN THE SOUTH POINTE PARKING LOT AND INSTALL THE OUTFALL, UNDERGROUND, THROUGH SOUTH POINTE PARK TO GOVERNMENT CUT.

The Administration continues to recommend proceeding with Option 1 of the First Street Neighborhood Improvement Project, related to the installation of the stormwater treatment system (SWTS).  This is also consistent with the Land Use and Sustainability Committee's recommendation from its May 26, 2020 meeting.

Option 1 would authorize the Administration to install the SWTS at the South Pointe parking lot, and install the outfall, underground, through South Pointe Park to Government Cut. Of the six (6) options considered and evaluated by the Administration, the Administration continues to recommend Option 1 because it offers the lowest estimated cost, along with the greatest benefits and advantages, including minimal loss of greenspace, the least amount of utility conflicts, minimal traffic impacts, and easy access maintenance accessibility.

The City of Miami Beach is committed to preserving the welfare and safety of its residents, visitors, and businesses.  As part of this commitment, the City has diligently worked to provide a higher level of service to the South Pointe neighborhood by implementing improvements to its infrastructure with the proposed First Street Neighborhood Improvement Project (the Project).

Since the start of the Project, the City continuously involved the South of Fifth Street community at every step of the process. A testament to the extraordinary level of community engagement, are the 40 stakeholder outreach meetings held during a 4-year period.  Feedback from stakeholders including, but not limited to, the South of Fifth Neighborhood Association (SOFNA), and residents and business owners in the South of Fifth Neighborhood, led to multiple design variations, including the evaluation of multiple locations for the proposed SWTS and outfall.

To date, the location of the proposed SWTS has not been finalized due to a lack of consensus.  Remarkably, everyone agrees that the project is necessary. No one disputes that flooding occurs along the First Street corridor or its surrounding areas.  However, the various factions within the South of Fifth Neighborhood cannot agree on the location of the SWTS; in fact, after obtaining prior approval from SOFNA, the location of the SWTS is still disputed.  Consequently, the Office of the City Manager recommended to the Mayor and City Commission, via LTC 056-2021 attached as Exhibit “A” hereto, postpone the First Street Project and proceed with the adopted Neighborhood Prioritization developed by Jacobs Engineering.  This would place the First Street Neighborhood Improvement Project at Number 10 on the prioritized list.

LTC 056-2021 prompted additional requests from the members of the Commission, as well as residents and businesses within the South of Fifth Neighborhood,  to reconsider the Manager's recommendation and analyze (and in some cases to re-analyze) other options, which predominantly included the following:

• Option 1: Locate the SWTS at the South Pointe parking lot with the above ground equipment located in the median at the south end of Washington Avenue and install the outfall, underground, through South Pointe Park to Government Cut;

• Option 2: Locate the SWTS in the median at the south end of Washington Avenue, by South Pointe Park and install the outfall, underground, through South Pointe Park to Government Cut;

• Option 3A: Locate the SWTS at the Triangular Park on 1st Street and Alton Road, and install the outfall, underground, through Jefferson Ave/Alton Road, south to South Pointe Dr., then east to Washington Avenue and south to Government Cut;

• Option 3B: Locate the SWTS at the Triangular Park on 1st Street and Alton Road, and install, the outfall, underground, through 1st Street, east to Washington Avenue, then south to Government Cut;

• Option 4: Locate the SWTS at a new roundabout on Washington and First Street, and install the outfall, underground, through Washington, then through South Pointe Park to Government Cut;

• Option 5: Locate the SWTS at the City owned parking lot on Washington and First Street, and install the outfall, underground, through Washington Avenue, then through South Pointe Park to Government Cut. 

On Wednesday, April 7, 2021, City staff presented its analysis of the five options to the newly elected SOFNA Board of Directors. SOFNA requested an onsite meeting with staff, which took place on Friday, April 9, 2021. The SOFNA Board requested that staff perform one (1) additional analysis of a site, generally described to be at the northeast corner of the intersection of Washington Avenue and 2^nd Street, thereby adding an Option 6. 

Exhibit “B” (Attached) illustrates the general location of the SWTS and outfall for each of the above referenced options.

COMPARISON OF STORMWATER TREATMENT SYSTEM AND OUTFALL LOCATION OPTIONS

­­Table-1 presents a comparison of the options. It should be noted that there are common elements for every option, which include:

• Construction of outfall is not required within private property.

• Stormwater is not discharged into Miami Beach Marina; therefore, their consent is not required.

• Installation of the outfall running underground within South Pointe Park requires consent from the National Park Service. Email correspondence from the National Park Service, dated November 5, 2020 (see Exhibit “C) indicates consent has been obtained.

MIAMI-DADE CHARTER (SAVE OUR PARKS) ANALYSIS

On October 12, 2020, counsel for the Portofino/South Pointe Master Association, Inc. and the Continuum on South Beach Master Association, Inc. (collectively, the “Associations”) sent the City a letter identifying the Associations’ strong opposition to the installation of a stormwater pump, whether installed above-ground or fully underground, at South Pointe Park. The letter alleges that the installation of a stormwater system below-ground in South Pointe Park would trigger a County-wide referendum under Miami-Dade County Charter’s “Save Our Parks” law, as codified in the Section of the County Charter. The letter from the Associations also served to place the City on notice that if the Public Works Department decides to proceed to try to install a stormwater pump without County-wide referendum (the Associations) are prepared to file a lawsuit in court and to seek a preliminary injunction while the matter is being litigated.”  A subsequent letter dated April 12, 2021, was received by litigation counsel for the Master Associations of the Portofino/South Pointe and Continuum on South Beach owners; again threatening the commencement of litigation, should the City select Option 1 (both letters are attached as Exhibits "D" and "E" hereto). 

Having analyzed the legal position posited in the letter, the City Attorney's office agrees with the Associations that the above-ground components of a stormwater utility system cannot be in the Park without a County referendum, as the system is not for the primary use of the Park, but rather is for the neighborhood generally. However, the City believes undergrounding the stormwater utility at South Pointe Park will not trigger a County referendum requirement.

The Associations argue that the undergrounding of utilities at South Pointe Park would trigger a County-wide referendum because the Associations claim the exception to the referendum requirement for underground utilities, as set forth in Section 7.02(L) of the Miami-Dade County Charter (the “Underground Utility Exception” or “Exception”), must be narrowly construed to only permit “third-party service providers” such as AT&T, FPL, or Atlantic Broadband, to install underground utilities in public parks without a County-wide referendum. The Underground Utility Exception provides for an exception for construction in the County’s parks (and parks subject to the Charter provision) related to “Agreements with cable, internet, telephone, electric or similar service providers or utilities, so long as any installations are underground or do not adversely impact natural resources, or parks facilities and uses.”

The City disagrees with the Associations’ analysis and concludes that the Underground Utility Exception only applies to third-party service providers such as “AT&T, FPL, Atlantic Broadband, and similar providers”, but not the City as a utility provider.  This position is belied by the plain language of County Charter Section 7.02(L) itself, which covers “agreements with cable, internet, telephone, electric or similar service providers or utilities...”  Although the Association  interprets the Exception as being limited to “third-party service providers” and appears to ignore the separate reference in the text to “utilities,” nowhere does the actual language of the Exception use the words “third-party” or expressly limit its application to third-parties.

Far from advancing the purpose and intent of the County Charter Section 7 – to preserve park lands for the benefit of the public and protect against private uses of parks -- the interpretation that public underground utilities should somehow be treated differently from private utility service providers would only serve as a straightjacket on public entities that provide critical public utility services such as stormwater or water and sewer services.  Indeed, it would be inconsistent that a Charter requirement designed to protect against private uses of parks, would only be construed to limit public utilities, even where the public utilities are underground and do not impact natural resources of the use of a park. To this end, the City is not treading any new ground here, as we are not aware that any other municipality, or Miami-Dade County, has applied the County Charter provision or the Exception in such an unprecedented manner.

Accordingly, for the reasons set forth above, it is Legal's position that whether public or private, if an underground utility installation does not adversely impact natural resources or the use of a park, the purposes of the County Charter would be served, and a referendum would not be required.

The Administration continues to recommend proceeding with Option 1 of the First Street Neighborhood Improvement Project, related to the installation of the stormwater treatment system (SWTS).  This is also consistent with the Land Use and Sustainability Committee's recommendation from its May 26, 2020 meeting.

Option 1 would authorize the Administration to install the SWTS at the South Pointe parking lot, and install the outfall, underground, through South Pointe Park to Government Cut. Of the six (6) options considered and evaluated by the Administration, the Administration continues to recommend Option 1 because it offers the lowest estimated cost, along with the greatest benefits and advantages, including minimal loss of greenspace, the least amount of utility conflicts, minimal traffic impacts, and easy access maintenance accessibility.