A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, FOLLOWING A DULY NOTICED PUBLIC HEARING, AS REQUIRED PURSUANT TO SECTION 82-93(B) OF THE CITY CODE, FINDING THAT THE CRITERIA FOR GRANTING A REVOCABLE PERMIT PURSUANT TO SECTION 82-94 OF THE CITY CODE HAS BEEN SATISFIED, ACCEPTING THE PUBLIC WORKS DEPARTMENT'S RECOMMENDATION AS SET FORTH IN THE COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION, AND APPROVING A REVOCABLE PERMIT REQUEST BY ELAINE R. LEVINE LIVING TRUST, FOR THE PROPERTY LOCATED AT 3333 GARDEN AVENUE, MIAMI BEACH (THE “PROPERTY”), TO ALLOW FOR THE INSTALLATION OF A NEW ALUMINUM SHEET PILING TOEWALL FOOTER, A NEW REINFORCED CONCRETE SEAWALL CAP WITH NEW CONCRETE BATTER PILES, AND A NEW 693.5 SQUARE FEET WOOD DOCK SUPPORTED BY NEW WOOD DOCK PILES WITHIN THE CITY'S SUBMERGED LANDS, IN AN AREA APPROXIMATELY 1,565 SQUARE FEET IN SIZE; AND FURTHER, AUTHORIZING THE CITY MANAGER TO EXECUTE THE REVOCABLE PERMIT.

In order to comply with the City's new seawall requirements, and therefore eliminating environmental impacts and potential impacts to neighboring property owners, the Administration recommends approving the Resolution.

Elaine R. Levine Living Trust (the “Applicant”), owner of the property located at 3333 Garden Avenue (the “Property”) is requesting the approval of a revocable permit for encroachment of a seawall on City of Miami Beach (“City”) submerged lands.

The existing seawall is approximately 207 square feet by itself with additional marine structure, including concrete bag footers.

The Applicant is seeking to repair and fortify the existing seawall, which improves the resilience of the Property and the surrounding neighborhood in which it is located. Notably, the existing sea wall encroaches upon City-owned submerged lands by approximately 4’-3’’. The proposed repair and fortification of the existing seawall will result in a maximum total encroachment of approximately 5’-7’’.

On January 13, 2021, the City Commission adopted Ordinance No. 2021-4393, amending the City's Stormwater Management Master Plan to incorporate modifications to the standards for construction, including a minimum required seawall height.  Section 54-62(a) was modified as follows:  All new seawalls or existing seawalls that require substantial repairs; shall have a minimum elevation of 5.7 feet NAVD88.  All existing seawalls that require repairs but the repairs are considered less than substantial and existing seawalls that fall below an elevation that incurs flooding to adjacent property and/or public right of way shall have a minimum elevation of 4.0 feet NAVD88 if designed and constructed to accommodate a minimum elevation of 5.7 feet NAVD88.

Pursuant to Section 82-93(a) of the City Code, notices of the public hearing have been mailed to owners of land lying within 375 feet of the existing permit area at least 15 days prior to the public hearing. Public Works has analyzed the criteria contained in Section 82-94.

Additionally, pursuant to Section 82-94, of the City Code, the City Commission shall review the Revocable Permit request and determine whether the request shall be granted or denied based upon the following criteria:

1) The Applicant’s need is substantial.

• The Applicant’s need is substantial based on the City’s requirement to elevate existing seawalls, the configuration of the existing seawall, and the negative impacts caused by any alternative that would not require a revocable permit. In 2016 the City adopted Resolution 2016-29454, which requires property owners to increase the minimum height of existing seawalls to 4.0’ NAVD. In addition, existing seawalls must be able to accommodate future extension to a height of 5.7’ NAVD. In recognition of the challenge property owners face with respect to repairs of existing seawalls required to meet the new seawall height requirements, the City adopted Resolution 2018-4220, which permits property owners to seek revocable permits for seawalls that encroach more than 4’ into City-owned submerged lands. 

Importantly, due to the existing configuration of the Property, the existing seawall encroaches into City-owned submerged lands by approximately 4’-3’’. Consequently, any work to this seawall would either require a revocable permit, or require intrusive work to the shoreline to remove the existing seawall, excavate the shoreline, and replace with a seawall that encroaches less than 4’ into City-owned submerged lands. In evaluating whether to repair and fortify the existing seawall or replace the existing seawall, the Applicant considered the following factors: 

Environmental Damage: As documented in the attached Environmental and Structural Assessment, the environmental impacts of replacing the existing seawall far outweigh the impacts of repairing and fortifying the existing seawall. Replacement of the existing seawall would entail impactful excavation of the shoreline and use of heavy marine equipment that would deplete biological and marine resources in the immediate vicinity of the Property. Further, the turbidity created by excavation of the shoreline and demolition would likely impact a wider area, with the potential to smother native sea grasses, and negatively impact other marine flora and fauna down-current from the Property. 

Damage to Neighbors: Removal of the seawall would create a substantial risk of damage to the seawall belonging to neighboring property owners. Notably, the neighboring property to the west identified by Folio No. 02-3227-015-0071 is owned by the City and is fortified with a seawall. Similarly, the neighboring property to the west is fortified with a seawall. Demolition of the existing seawall and the required excavation work to install the replacement seawall creates a risk of destabilizing the neighboring seawalls. In this particular instance, destabilization of the City-owned seawall at the Garden Avenue street-end would create a substantial risk of flooding in a public right of way, while destabilization of the neighboring seawall to the west threatens the neighboring property. 

Cost: In addition to the environmental impacts, potential structural damage to public and private property, the cost of replacement of the existing seawall far exceeds the costs of repair and fortification with no discernable additional benefit. The estimated cost of a full seawall replacement is approximately $240,000 compared to $95,850 for repair and fortification.

In light of the unavoidable environmental harm, substantial risk of property damage, and unjustified additional cost associated with a full replacement of the existing seawall, the Applicant’s need for a revocable permit is substantial.

2) The Applicant holds title to an abutting property.

• According to the Opinion of Title prepared by Paul A. Levine, Esq. dated October 29, 2021, the Applicant holds title to the Property, which abuts the submerged lands upon which this revocable permit seeks to encroach.

3) The proposed improvements will comply with applicable codes, ordinances, regulations, neighborhood plans and laws.

• The proposed improvements comply with all applicable codes, ordinances, regulations, neighborhood plans, and laws. Specifically, the Applicant has already obtained approval from the Florida Department of Environmental Protection and the United States Army Corps of Engineers for the proposed improvements to the existing seawall. Further, through Building Permit Number BR2105477, the City has reviewed and approved the proposed improvements to the existing sea wall.  

4) The grant of the application will have no adverse effect on governmental/utility easements and uses on the property.

• The grant of the revocable permit will have no adverse impact on governmental or utility easements and uses on the Property. To the contrary, replacement of the existing seawall in a position that does not require a revocable permit would negatively impact the City-owned property to the west of the Property, and could impact various public utilities commonly associated with public street-ends. 

5) That the grant of the revocable permit will enhance the neighborhood and/or community by such amenities as, for example, enhanced landscaping, improved drainage, improved lighting, and improved security, and/or public benefits proffered by the Applicant.

• The grant of the revocable permit allows for the Applicant to install a repaired and significantly more resilient seawall. The higher seawall protects the Property, as well as the surrounding neighborhood, including the City’s abutting street end, from harmful flood impacts associated with extreme weather events, as well as nuisance flooding caused by rising sea levels. The reinforced seawall stabilizes the uplands and adds strength and longevity to the adjacent seawalls, where removal and replace of the seawall would significantly destabilize the shoreline and adjacent seawalls.  Grant of the revocable permit also mitigates environmental impacts caused by marine construction, which serves to preserve marine life and habitats in the adjacent waters of Biscayne Bay. Thus, the grant of the revocable permit enhances the neighborhood and community by improving resilience and mitigating harmful environmental impacts and preserving marine resources. 

6) That granting the revocable permit requested will not confer on the applicant any special privilege that is denied by this article to other owner of land, structures or buildings subject to similar conditions located in the same zoning district.

• The grant of the requested revocable permit does not confer any special privileges upon the Applicant not shared by similarly situated property owners in the same zoning district. The City expressly recognized the need of similarly situated property owners with existing sea walls that encroach into City-owned submerged lands to seek revocable permits by adopting Resolution 2018-4220. Indeed, on at least one previous occasion, the City granted a revocable permit request for the property located at 544 Lakeview Court, which is within a similar residential single-family zoning district as the Property.

7) That granting the revocable permit will be in harmony with the general intent and purpose of this article, and that such revocable permit will not be injurious to surrounding properties, the neighborhood, or otherwise detrimental to the public welfare.  

• The specific purpose of Resolution 2018-4220 was to allow owners of property with existing sea walls that encroach into City submerged lands, such as the Applicant, to seek a revocable permit. Such revocable permits mitigate environmental damage caused by intrusive marine construction, avoid damage to neighboring properties, improve resilience of properties and their surrounding neighborhoods, and are cost-efficient for the residents of the City. Denial of such a request for a revocable permit would be a detriment to the public welfare. Accordingly, the requested revocable permit is in harmony with the general intent and purpose of the Code

PUBLIC BENEFIT

Removing the seawall will detrimentally impact the natural resources, especially seagrasses and the overall marine resource community in Lake Surprise, as well as the water quality in the nearby area.  Adding to existing seawall will preserve those natural resources serving as critical habitats, and water quality.  Further, the seawall will substantially stabilize the land for this property, which indirectly but importantly helps preserve the neighboring seawalls, all of which benefit the City by providing appropriate and long-lasting support of the land and ensuring resiliency for sea-level rise.  

Results from the 2019 Resident Survey related to the overall ratings for the City of Miami Beach show that 50% of residents rated City efforts to manage stormwater drainage and flooding as excellent/good. In order to continue maintaining excellent standards in this area, the Administration recommends approving the revocable permit.

In order to comply with the City's new seawall requirements, and therefore eliminating environmental impacts and potential impacts to neighboring property owners, the Administration recommends approving the Resolution.