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11/16/2020Monday, November 16, 2020 9:00 AM City of Clearwater Main Library - Council Chambers 100 N. Osceola Avenue Clearwater, FL 33755 Main Library - Council Chambers Community Redevelopment Agency Meeting Agenda November 16, 2020Community Redevelopment Agency Meeting Agenda Citizens wishing to provide comments on an agenda item are encouraged to do so in advance through written comment. The City has established the following options: 1)eComments via Granicus - eComments is integrated with the published meeting agenda. Individuals may review the agenda item details and indicate their position on the item. You will be prompted to set up a user profile to allow you to comment, which will become part of the official public record. The eComment period is open from the time the agenda is published. Comments received during the meeting will become part of the official record, if posted prior to the closing of public comment. The City Clerk will read received comments into the record. 2)Email – Individuals may submit written comments or videos to ClearwaterCRA@myclearwater.com. All comments received by 5 p.m. the day before the meeting (November 15) will become part of the official record. The City Clerk will read received comments into the record. 3)Council Chambers - Additionally, like any other council meeting, the public may provide public comment at the Main Library, Council Chambers, 100 N Osceola Avenue. Due to COVID-19, all speakers desiring to appear in person will be subject to all applicable emergency measures in place to prevent the further spread of COVID-19. Speakers who appear in person will be subject to screening for symptoms of COVID-19. Any persons exhibiting any symptoms of COVID-19 will not be permitted to enter council chambers but will be able to participate through the remote options described above. Individuals with disabilities who need reasonable accommodations to effectively participate in this meeting are asked to contact the City Clerk at (727)562-4092 or rosemarie.call@myclearwater.com in advance. 1. Call To Order 2. Approval of Minutes 2.1 Approve the October 12, 2020 CRA Meeting Minutes as submitted in written summation by the City Clerk. 3. Citizens to be Heard Regarding Items Not on the Agenda 4. New Business Items 4.1 Approve the proposed 2021 Community Redevelopment Agency Board meeting schedule and adopt Resolution 20-03. 4.2 Discuss limiting property ownership in the Downtown and regulating commercial properties in the Downtown that are code-compliant but vacant. 5. Director's Report 6. Adjourn Page 2 City of Clearwater Printed on 11/6/2020 Cover Memo City of Clearwater Main Library - Council Chambers 100 N. Osceola Avenue Clearwater, FL 33755 File Number: ID#20-8031 Agenda Date: 11/16/2020 Status: Agenda ReadyVersion: 1 File Type: MinutesIn Control: Community Redevelopment Agency Agenda Number: 2.1 SUBJECT/RECOMMENDATION: Approve the October 12, 2020 CRA Meeting Minutes as submitted in written summation by the City Clerk. SUMMARY: APPROPRIATION CODE AND AMOUNT: USE OF RESERVE FUNDS: Page 1 City of Clearwater Printed on 11/6/2020 Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 1 City of Clearwater City of Clearwater Main Library - Council Chambers 100 N. Osceola Avenue Clearwater, FL 33755 Meeting Minutes Monday, October 12, 2020 9:00 AM Main Library - Council Chambers Community Redevelopment Agency Draft Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 2 City of Clearwater To ensure public safety and comply with the Governor's Safer at Home order in response to the COVID-19 virus, the Clearwater City Council will hold a public meeting on Monday, October 12, 2020 at 9:00 a.m. using communications media technology. Pursuant to Executive Order No. 20-69, issued by the Office of Governor Ron DeSantis on March 20, 2020, municipalities may conduct meetings of their governing boards without having a quorum of its members present physically or at any specific location, and utilizing communications media technology such as telephonic or video conferencing, as provided by Section 120.54(5)(b)2, Florida Statutes. Roll Call Present 5 - Chair Frank Hibbard, Trustee David Allbritton, Trustee Hoyt Hamilton, Trustee Kathleen Beckman, and Trustee Mark Bunker Also Present: William B. Horne II – City Manager, Micah Maxwell – Assistant City Manager, Michael Delk – Assistant City Manager, Pamela K. Akin City Attorney, Rosemarie Call – City Clerk, Nicole Sprague – Deputy City Clerk, and Amanda Thompson – CRA Executive Director To provide continuity for research, items are listed in agenda order although not necessarily discussed in that order. Unapproved 1. Call to Order – Chair Hibbard The meeting was called to order at 9:02 a.m. using communications media technology. 2. Approval of Minutes 2.1 Approve the minutes of the September 14, 2020 CRA Meeting as submitted in written summation by the City Clerk. Trustee Hamilton moved to Approve the September 14, 2020 CRA Meeting Minutes as submitted in written summation by the City Clerk. The motion was duly seconded and carried unanimously. 3. Citizens to be Heard Regarding Items Not on the Agenda Kathy Flaherty submitted an eComment regarding the functions of a CRA. The City Clerk read the comments into the record (see page 9). Draft Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 3 City of Clearwater The City Attorney said all CRA expenditures are done consistent with the CRA Plan, which is extensive and detailed. The city complies with the Plan. The City Manager said the City Commission at the time established clear priorities; the Commission did not direct him to ignore blight in the CRA. He said staff has not ignored blight in the CRA. CRA Executive Director Amanda Thompson said the CRA pays for community policing. Two additional officers are dedicated to the CRA district. She said the City cannot force property owners to take CRA grant funds for eligible property improvements. The City Attorney said the Downtown Development Board is a separate legal entity from the City and has its own taxing authority. The money that comes to the CRA is TIF and the CRA contracts with the DDB to provide certain services for the DDB. 4. New Business Items 4.1 Approve a Community Redevelopment Agency contribution of $305,000 to be set aside as a commitment for the Minimum Local Government Areas of Opportunity Funding that is required for Blue Pierce, LLC, as Successor-in-Interest to Blue Sky Communities, LLC, (Blue Sky) to receive a basis boost in the State of Florida’s Low Income Housing Tax Credit Program (LIHTC) for an 81-unit affordable housing development project at 610 Franklin Street; approve the First Amendment to Agreement for Development and Purchase and Sale of Property (Amendment) between the Community Redevelopment Agency, the City of Clearwater and Blue Pierce, LLC (Blue Pierce); and authorize the appropriate officials to execute same The purpose of this item is to request that the CRA Trustees amend the current development agreement with the City of Clearwater and Blue Pierce, LLC to reduce the required local government contribution from $747,000 to $610,000. Amending the agreement requires the approval of both the City and the CRA. The City Council will consider this item on October 1, 2020. The Community Redevelopment Agency (CRA) issued RFP 09-19 on August 17, 2019 to redevelop the former Fire Station 45 site at 610 Franklin Street as a housing tax credit project. The 2018 Downtown Redevelopment Plan calls for a variety of housing to support a range of incomes including market rate, workforce and low- to moderate-income rental units to meet the unmet housing demand for a diverse workforce in the Downtown Core, employees in the medical field at Morton Plant and the hospitality industry on Clearwater Beach. The RFP invited qualified applicants with previous experience and financial resources to develop a minimum of eighty residential units under the Florida Housing Finance Corporation’s Low-Income Housing Tax Credit program. Staff reviewed three qualified proposals and recommended Blue Sky Communities Draft Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 4 City of Clearwater as the winning proposal on September 18, 2019. Blue Sky Communities proposes to construct a 9-story, 81-unit housing development with a two-story, 81-space parking garage and ground floor commercial space. The unit mix is 30 1-bedroom, 47 two-bedroom and 4 three-bedroom units. This is a mixed income project with 16% of the units at 30% AMI, 69% of the units at 60% AMI and 15% of the units at 80% AMI. The developer anticipates future residents having $216,000 in new disposable income after moving into this project. The total development costs are approximately $22,000,000. This includes a purchase price of $2,000,000 from the CRA and a loan from City/CRA of $747,000 at interest rate of 4%. After entering into the Agreement for Development and Purchase and Sale of Property (Agreement), Blue Sky submitted an application to the FHFC under RFA114. Blue Sky’s application to FHFC was unsuccessful; however, the Agreement contained an option for an extension of one additional year for Blue Sky to re-apply in a future RFA, which was exercised in accordance with the terms of the Agreement. The Amendment provides updated information regarding FHFC’s 2020 Application cycle. Following approval of this item, Blue Sky will submit an application in response to FHFC’s Request for Applications 2020-202 (RFA202). The minimum Local Government Area of Opportunity Funding amount has been reduced by the State from $747,000 in 2019 to $610,000 for this year’s RFA. The CRA’s portion of this new match is $305,000. If more than one firm submits an acceptable application for a project located in Pinellas County with local government support of $610,000, then FHFC’s selection becomes akin to a lottery pick; only one project will be awarded tax credits. Applications for RFA202 are due on October 20, 2020 and FHFC’s selection is expected in March 2020. If Blue Sky is not successful in this round, the agreement will expire, and the property will be available for new redevelopment proposals. Approval of the amendment and contribution is recommended. APPROPRIATION CODE AND AMOUNT: There is funding available in the Housing-County R2010 project fund. In response to questions, CRA Executive Director Amanda Thompson said the agreement will expire March 2021. Staff will come back to the Trustees if Blue Pierce is not awarded the tax credits in order to discuss what is desired on the property. The City's contribution was recently reduced because the State recently lowered the minimum required local government contribution rate. Trustee Hamilton moved to approve a Community Redevelopment Agency contribution of $305,000 to be set aside as a commitment for the Minimum Local Government Areas of Opportunity Funding Draft Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 5 City of Clearwater that is required for Blue Pierce, LLC, as Successor-in-Interest to Blue Sky Communities, LLC, (Blue Sky) to receive a basis boost in the State of Florida’s Low Income Housing Tax Credit Program (LIHTC) for an 81-unit affordable housing development project at 610 Franklin Street; approve the First Amendment to Agreement for Development and Purchase and Sale of Property (Amendment) between the Community Redevelopment Agency, the City of Clearwater and Blue Pierce, LLC (Blue Pierce); and authorize the appropriate officials to execute same. The motion was duly seconded and carried unanimously. 4.2 Authorize the CRA Executive Director to prepare an agreement for the development and sale of the property at 306 South Washington Avenue for the purposes identified in RFP 53-20. The purpose of this item is to select SP Clearwater WFH LLC as the winning respondent for RFP 53-20 and to authorize the CRA Executive Director to prepare an agreement for the sale, development and grant funding for the project. The Community Redevelopment Agency issued an RFP for the redevelopment of its site at 306 South Washington on August 17, 2020. The request called for a mixed-use or apartment development with a focus on workforce and market rate housing, the opportunity for shared parking to serve surrounding restaurant/retail businesses, construction to begin in 2021 and ample outdoor amenity space. There is currently a lack of rental supply for employees in the technology industry downtown, at Morton Plant Hospital and on Clearwater Beach who earn 80% or higher of the area median income. Building shared parking on the South Washington site is key to preserving existing greenspace on the CRA owned site across the street on Pierce Street as well as supporting commercial uses on the ground floors of APEX 1100 and The Nolan apartment. The CRA received responses from the Housing Trust Group, LLC and SP Clearwater WFH LLC. The review committee read the proposals and listened to presentations from each respondent. The projects were ranked on Developers Experience and Qualifications, Legal and Financial Feasibility, Ability to Meet Redevelopment Objectives, and Proposed Timeline for Construction. The committee ranked SP Clearwater WFH LLC as the first choice and recommended moving forward with requesting authorization to negotiate. While both applicants have significant experience with affordable housing and presented attractive architectural proposals, SP Clearwater WFH scored higher for the following reasons: Draft Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 6 City of Clearwater - More detailed proposal including construction cost estimates and ability to begin construction in 2021 - Ability to source local financing, not dependent on the state 9% and 4% tax credit program - The provision of workforce rental housing above 80% AMI - Long term affordability through a partnership with the Pinellas County Land Trust - Significant research into the market and financial feasibility of the project SP Clearwater WFH is proposing to construct a 171-unit mixed income apartment development, a 275-space parking garage with tenant amenities including a pool, dog walking area, two playgrounds, exercise room and community room. There is a mixture of 1-bedroom (725sf) units and 2 bedroom (925sf) units. There will be 18 affordable units at 80% of AMI, 49 units at 100% of AMI and 104 affordable units at 120% of AMI. The building will include high efficiency HVAC, Energy Star rated windows, low flow toilets and sound deadening construction. The parking area will include a dedicated Uber/Lyft area to support car sharing services as well as ample bicycle parking. The current proposal calls for 40 public parking spaces, however the CRA will negotiate to increase this number and the developer has indicated they are amenable to that. There are two aspects to this proposal that provide long term housing affordability. First, the developer proposes that the CRA sell the land to the Pinellas County Land Trust who will own the underlying land in perpetuity. The land trust will then provide a 99-year lease to the developer. Second, the rental rates are set by the AMI established by Pinellas County and cannot increase more than 1.02% per year. Typically, market rate rental amounts increase more than 1% per year. SP Clearwater WFH has presented an in-depth proposal. They have conducted environmental studies on the site, a market analysis to show the proposed rental rates are achievable for this project and obtained preliminary approval for construction financing from Neighborhood Lending Partners. They have already received a construction cost estimate from Wichman Construction to provide an accurate overall project budget. The overall project cost is $38,436,995. The table below shows the sources of funds and how they will be used. SP Clearwater representatives Peter Leach and Brian Hammond provided a PowerPoint presentation. In response to questions, Mr. Leach said a 1,500 sq. ft.-room will be set Draft Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 7 City of Clearwater aside for scooters and bicycles that will also provide electricity to charge electric scooters and bikes. The project includes 20 wall chargers for electric vehicles in the garage. He said the project meets all of the green standards required of the Florida Housing Finance. The parking garage has a large roof area that is being considered for solar panels to run the project's exterior lighting. Mr. Leach said the project includes 2,000 sq. ft. of amenities designed to meet the requirement for exercise room, party space and tv room. The construction will be mostly prefabricated; if the project was all concrete, it would be really expensive. Trustee Hamilton moved to authorize the CRA Executive Director to prepare an agreement for the development and sale of the property at 306 South Washington Avenue for the purposes identified in RFP 53-20. The motion was duly seconded and carried unanimously. 5. Director's Report CRA Executive Director Amanda Thompson said the Holiday Extravaganza will include four scheduled movies at the CMA lot and at the Economy Inn lot. Staff is close to securing a Ferris wheel and additional lighting. She said staff is working with the library to provide make and take holiday craft kits for children. The Downtown Development Board ballot is due tomorrow. Staff will be presenting amendments to the DDB ordinance in November. She said the DDB approved $50,000 towards the Back to Business grants and have provided over $50,000 to the Downtown Clearwater Merchants Association to assist with programming needs. The Cleveland Street Lighting Project idea, which was brought forward by 3 downtown advocates and business owners, is on hold awaiting a quote for design services; staff hopes to set up site visits for the designers who will be able to explain the technical requirements of different options. The project area includes Cleveland St. from the water to Missouri Avenue. She said Station Square Park will need investment at some point. The design of the park does not allow for pedestrian flow through and there are currently no active uses for the space which has created a dead zone. Some type of programming or change will be needed to bring activity to the area. She said an updated strategy with the requested metrics will be presented in November or December. She will also request guidance for a survey to be conducted in the CRA. She will be launching a Call for Ideas with Amplify Clearwater this week and clarified that the CRA has given a grant to Amplify as part of the capacity building to assist event producers with the City’s special event process in combination with getting co- sponsorship from the Parks & Recreation Department. Now that Florida has moved into Phase 3 of re-opening, staff will be actively soliciting new events Draft Community Redevelopment Agency Meeting Minutes October 12, 2020 Page 8 City of Clearwater for the downtown to enjoy. Letters will be sent to property owners late October or early November regarding the opportunity zone advertising campaign with information on what the CRA is doing to market the area, locally, regionally, and nationally. 6. Adjourn The meeting adjourned at 9:53 a.m. Chair Community Redevelopment Agency Attest City Clerk Draft 9 10 Cover Memo City of Clearwater Main Library - Council Chambers 100 N. Osceola Avenue Clearwater, FL 33755 File Number: ID#20-8346 Agenda Date: 11/16/2020 Status: Agenda ReadyVersion: 1 File Type: Action ItemIn Control: Community Redevelopment Agency Agenda Number: 4.1 SUBJECT/RECOMMENDATION: Approve the proposed 2021 Community Redevelopment Agency Board meeting schedule and adopt Resolution 20-03. SUMMARY: Community Redevelopment Agency staff has prepared the proposed meeting scheduled of the City of Clearwater Community Redevelopment Agency (CRA) Board for the calendar year 2021. The CRA board meeting will be held monthly in the City Council Chambers, 100 N. Osceola Avenue. The meeting schedule will be posted on the CRA’s website, with separate meeting notices provided by the City Clerk’s Office and noted on the City’s website prior to each meeting. If there is no action for the board to consider at a schedule meeting, staff will recommend the meeting be cancelled. Changes to the dates may be required to accommodate needs of board members and/or CRA staff. If there is a need for a special meeting CRA staff will notify the board and the meeting will be noticed by the City Clerk’s Office as well as on the City’s website. Page 1 City of Clearwater Printed on 11/6/2020 Exhibit A City of Clearwater Community Redevelopment Agency Board 2021 Meeting Schedule 1. Tuesday, January 19, 2021 9:00 a.m. 2. Tuesday, February 16, 2021 9:00 a.m. 3. Monday, March 15, 2021 9:00 a.m. 4. Monday, April 12, 2021 9:00 a.m. 5. Monday, May 17, 2021 9:00 a.m. 6. Monday, June 14, 2021 9:00 a.m. 7. Monday, July 12, 2021 9:00 a.m. 8. Monday, August 16, 2021 9:00 a.m. 9. Monday, September 13, 2021 9:00 a.m. 10. Monday, October 18, 2021 9:00 a.m. 11. Monday, November 15, 2021 9:00 a.m. 12. Monday, December 13, 2021 9:00 a.m. This is the regular City of Clearwater Community Redevelopment Agency (CRA) Board meeting schedule. If possible, meeting announcements, to include cancellations, will be made at lease one week in advance of each meeting. Changes to the regular schedule may be required to meet quorum requirements: special meetings may also be required. Unless otherwise noted, meetings will be held in the City Council Chamber, Clearwater Main Library 100 N. Osceola Avenue. Please note that anyone wanting to appeal an official decision made by the CRA Board on any subject at a meeting must have a verbatim record of the meeting that includes the testimony and evidence on which the appeal is based. If you have any questions, please contact Rosemarie Call at (727) 562-4090 or rosemarie.call@myclearwater.com Resolution No. 20-03 RESOLUTION NO 20-03 A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, ADOPTING THE CRA 2021 MEETING SCHEDULE; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Community Redevelopment Agency (CRA) annual meeting schedule requirements have been clarified and Section 189.015 and Chapter 286, of the Florida Statues require that CRA’s adopt their annual meeting schedule by resolution, now, therefore, BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA: Section 1. Adopt the CRA 2021 Regular Meeting Schedule as outlined on Exhibit A. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 16th day of November 2020. ____________________________ Frank V. Hibbard Chairman Approved as to form: Attest: __________________________ _____________________________ Michael Fuino Rosemarie Call CRA Attorney City Clerk Cover Memo City of Clearwater Main Library - Council Chambers 100 N. Osceola Avenue Clearwater, FL 33755 File Number: ID#20-8430 Agenda Date: 11/16/2020 Status: Agenda ReadyVersion: 1 File Type: Action ItemIn Control: Community Redevelopment Agency Agenda Number: 4.2 SUBJECT/RECOMMENDATION: Discuss limiting property ownership in the Downtown and regulating commercial properties in the Downtown that are code-compliant but vacant. SUMMARY: At the September 14, 2020 Community Redevelopment Agency meeting, the Trustees raised two questions for legal review. First, the trustees asked whether the CRA or the City may limit the amount of property owned by any one organization. Second, the Trustees asked whether the CRA or the City may regulate commercial properties in the City’s downtown that are code-compliant but vacant. On the first issue, it is a fundamental tenet of the United States and Florida Constitution that the government cannot regulate land ownership absent a valid public purpose. Florida statutory law also prohibits government action that places an inordinate burden on a property owner’s use of the real property. Finally, the City cannot regulate land ownership through imposition of its zoning laws. On the second issue, the City may regulate vacant commercial buildings in the downtown area that are otherwise code compliant. Specifically, the City may establish a registry of vacant properties requiring owners of these properties to report them to the City and pay a registration fee. However, while the City does fine owners of “abandoned buildings” that are unsecured or not maintained, there appears to be no authority for the City to levy fines merely because a commercial building does not have a tenant. Moreover, the City does not have the authority under Florida law to adopt so-called vacancy taxes. On the other hand, the law is clear that the City could fine property owners who fail to register their properties on a duly adopted vacant property registry. Page 1 City of Clearwater Printed on 11/6/2020 Interoffice Memorandum To: The Trustees of the Community Redevelopment Agency of the City of Clearwater From: Michael Fuino CC: Clearwater City Attorney; CRA Director Date: 10/29/2020 INTRODUCTION At the September 14, 2020 CRA meeting, the trustees raised two questions for legal review. First, the trustees asked whether the CRA or the City of Clearwater (“the City” or “Clearwater”) may limit the amount of property owned by any one organization. Second, the trustees asked whether the CRA or the City may regulate commercial properties in the City’s downtown that are code-compliant but vacant. BRIEF ANSWER On the first issue, it is a fundamental tenant of the United States and Florida Constitutions that the government cannot regulate land ownership absent a valid public purpose. Florida statutory law also prohibits government action that places an inordinate burden on a property owner’s use of the real property. Finally, the City cannot regulate land ownership through imposition of its zoning laws. Therefore, it is my opinion that the City cannot regulate the amount of property owned by one organization. On the second issue, the City may regulate vacant commercial buildings in the downtown area that are otherwise code compliant. Specifically, the City may establish a registry of vacant properties requiring owners of these properties to report them to the City and pay a registration fee. However, while the City does fine owners of “abandoned buildings” that are unsecured or not maintained, there appears to be no authority for the City to levy fines merely because a commercial building does not have a tenant. Moreover, the City does not have the authority under Florida law to adopt so-called vacancy taxes. On the other hand, the law is clear that the City could fine property owners who fail to register their properties on a duly adopted vacant property registry. DISCUSSION I. The City Cannot Regulate Property Ownership Absent a Public Purpose “While a municipality by ordinance may regulate or limit the use of property in behalf of the general welfare of its citizens, such action is authorized only in a constitutional manner.” Ex parte Wise, 141 Fla. 222, 230, 192 So. 872, 875 (1940). This is because, “[t]he ownership of property is one of the most sacred rights encouraged and protected by both our state and federal Constitutions. There is no greater safeguard to the perpetuity of our republican traditions and institutions than the responsibility of property ownership, and no municipality has a right to deprive one of such ownership except by due process of law and making just compensation therefor, as defined by the Constitution.” City of Palmetto v. Katsch, 86 Fla. 506, 513, 98 So. 352, 354 (1923). Furthermore, , the Florida Constitution in Article I, Section 2, provides that: “All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability.” In addition to these basic principles, regulating property ownership implicates the takings clause found in Fifth Amendment of the United States Constitution (which is imposed on the City through the Fourteenth Amendment’s due process clause) and Article X of the Florida Constitution. The former provides that the City may not take private property for a public purpose without just compensation, and the latter provides that the City may not take private property for a public purpose without full compensation. The basic characteristics of a valid public purpose is that: 1) the property must be made available to the public in common; 2) the public interest must dominate the private gain; and 3) the manner of enjoyment or use if the property must be in control of the public. Even without divesting a property owner of title to its property, the City can run afoul of the taking clauses through a regulatory taking. A regulatory taking occurs when: 1) government action causes a permanent physical invasion on private property; 2) government action deprives an owner of all economically beneficial use of the property; or 3) government action has interfered with distinct investment-backed expectations. See St. Johns River Water Management v. Koontz, 77 So. 3d 1220, 1226-1227 (Fla. 2012). Additionally, the Bert Harris Act provides additional protection to existing property owners affected by government regulation. See § 70.001, Fla. Stat. That law provides that when a specific action of a governmental entity has inordinately burdened an existing use of real property, the property owner is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the government. § 70.001(2), Fla. Stat. The City also cannot use zoning laws to limit ownership. 1 Rathkopf's The Law of Zoning and Planning § 2:16 (4th ed.) explains “zoning restrictions, conditions, or decisions which limit the use of land based on the identity or status of the users of the land generally will be held invalid by the courts. Zoning regulation which limits the use of land based on the race, economic status, age, blood relationship, or identity of the user or owner may be held invalid on either due process or equal protection grounds as a restriction by classification that is unrelated to any legitimate public purpose. Such restrictions also may be held ultra vires as beyond the scope of authority delegated by a zoning enabling act. On this ultra vires issue, state courts have held that a zoning enabling act authorizes a municipality to regulate the use of land but not the status or identity of land users. Zoning deals with land use, not the owner, operator or occupant of the land. See also, 8 McQuillin Mun. Corp. § 25:19 (“Zoning ordinances are concerned with the use of property and not with the ownership of it nor with the purposes of the owners or occupants (3d ed.)) These authorities make clear that the City cannot regulate property ownership based solely on a property owner’s status as a non-profit organization. Otherwise, the City would engage in an unauthorized taking since regulating land ownership in this manner would serve no public purpose. II. Registration and Penalties for Vacant Properties A. Vacant Property Registries Some local governments in Florida and around the country have combated vacancies by enacting ordinances that create vacant property registries. These ordinances generally require owners of vacant properties to report vacancies to the government anywhere from 10 and 90 days after the property becomes vacant. . A leading Florida example of this is the City of West Palm Beach which enacted such a registry in 2012 through Ordinance No. 4410-12. A property is considered “vacant” under West Palm Beach’s code if the property shows “evidence of vacancy,” which “means any condition that on its own, or combined with other conditions present, would lead a reasonable person to believe that the property is vacant.” See § 18-207, West Palm Beach Zoning and Land Development Code. Vacant property owners are required to register their properties within ten days of vacancy. § 18-209(a), West Palm Beach Zoning and Land Development Code. The registration fee is created by resolution of the city’s commissioners annually. § 18-209(c), West Palm Beach Zoning and Land Development Code. The stated municipal purpose of the West Palm Beach ordinance provides that “the registration of vacant and abandoned properties that…have simply been abandoned, neglected or left unsupervised by their owners will protect against devaluation cause by vacant and abandoned properties and is in the best interest of the public health, safety and welfare.” West Palm Beach Ordinance No. 4410-12 at p. 2. This sort of valid municipal purpose is all that is required for a municipality to exercise its municipal functions. See State v. City of Sunrise, 354 So. 2d 1206, 1210 (Fla. 1978). Consequently, it is my opinion that the City may require the registration of abandoned or vacant properties even if the properties are otherwise up to code. West Palm Beach’s use of a registration fee – rather than a tax – is permissible as a regulatory fee imposed under the police power of a local government. See § 166.221, Fla. Stat. Regulatory fees are subject to use restrictions which requires the fee proceeds to be applied to the cost of the activity and cannot exceed the cost of the activity. Other local governments around the country have adopted similar laws. For instance, the town of Arlington, Massachusetts adopted a “vacant storefront maintenance registry” in 2017. See Title V, Art. 17, Arlington Laws and Regulations. This law defines a “vacant building” as commercial or industrial real property that has not been used for ninety consecutive days or longer by occupants having a legal right to the property. Id. at § 2. Vacant building property owners must register their property with the town no more than seven days after the property becomes vacant. Id. at § 3(a). New Bedford, Massachusetts defines a “vacant building” as “any commercial building in which no person or entity actually conducts a lawfully licensed business in such building; or any residential building in which no person lawfully resides in any part of the building; or a mixed-use building in which neither a licensed business nor a lawful residence exists.” § 6-141, New Bedford Code of Ordinances. Vacant buildings must register with the city within forty- five days of becoming vacant. § 6-143, New Bedford Code of Ordinances. The city has imposed a sliding scale registration fee that begins at $500.00 for properties that are vacant for less than one year and rises to $3,000.00 for properties that have been vacant for three years or more. § 6-144, New Bedford Code of Ordinances. The District of Columbia defines a “vacant building” to mean “real property improved by a building which, on or after April 27, 2001, has not been occupied continuously…” § 42– 3131.05.5, Code of the District of Columbia. Vacant buildings must be registered within 30 days of vacancy. § 42–3131.05.6.a, Code of the District of Columbia. The initial and renewal fees are $250.00. § 42–3131.09, Code of the District of Columbia. For its part, the City created a similar registry in 2017 known as the “Foreclosure property registry.” See § 3-1505, Clearwater Community Development Code. This registry requires registration of a property with the City within ten calendar days of the filing of a foreclosure action. § 3-1505.C.1, Clearwater Community Development Code. The City requires an annual registration fee for these properties. § 3-1505.C.7. Therefore, it is my opinion that the City may regulate vacancies in the downtown by enacting a vacant building registry and charging a reasonable registration fee. B. Penalties for Vacancies A related but separate issue is whether the City may impose fines merely because a commercial building is vacant. Initially, the City has already declared that abandoned buildings are a nuisance § 3-1503.B, Clearwater Community Development Code. Such nuisances may be enforced by an action before the Clearwater Municipal Code Enforcement Board or by citation issued under §1.12, Clearwater Code of Ordinances. See § 3-1503.C, Clearwater Community Development Code. Therefore, the City already can fine property owners for owning abandoned buildings. However, the City’s code defines an abandoned building to mean “a building or structure that is deserted by the owner and left unsecured or that is not maintained.” § 8-102, Clearwater Community Development Code (emphasis added). So, a vacant commercial building that is otherwise secured or maintained would not fall within ambit of the Code and therefore could not be fined simply because it does not have a tenant. Moreover, I have found no authority in Florida finding this permissible. Further, administrative fines such as the ones the City imposes for abandoned property are penal in nature and therefore the burden is on the City to show by clear and convincing evidence that imposition of the fine is warranted. Dep't of Banking & Fin., Div. of Sec. & Inv'r Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996) (“Because the imposition of administrative fines under section 517.221(3), like license revocation proceedings, are penal in nature and implicate significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted.”). Clear and convincing evidence is an immediate level of proof that requires credible evidence that is sufficient in weight which would convince a trier of fact without hesitancy. In re Adoption of Baby EAW, 658 So. 2d 961, 967 (Fla. 1995). But in general, a vacant property becomes a problem when the property owner abandons the basic responsibilities of ownership, such as routine maintenance or mortgage and property tax payments. Margaret Dewar and June Manning Thomas. 2013. “Introduction: The City After Abandonment,” in Margaret Dewar and June Manning Thomas, eds., The City After Abandonment, Philadelphia: University of Pennsylvania Press, 2. Therefore, it is my opinion that a fine simply because a commercial property is vacant would not meet the clear and convincing level of proof required to support the fine. The City also cannot impose so-called vacancy taxes. Cf. Chapter 4.56, Oakland, California Code of Ordinances (creating a vacant property tax to combat homelessness). The Florida Constitution preempts all forms of taxation other than ad valorem tax on real or tangible personal property to the State. Art. VII, § 1(a), Fla. Con. On the other hand, the weight of the authority suggests that fines are permissible for failure to register vacant properties in a vacant property registry. For instance, West Palm Beach’s code provides generally that a property owner’s failure to register a vacant property is “subject to enforcement by any of the enforcement means available to the city.” § 18-209(g), West Palm Beach Code of Ordinances. This would presumably include daily fines for failing to register under the city’s code enforcement special magistrate. See § 26-35, West Palm Beach Code of Ordinances. More specifically, the town of Arlington imposes a $100.00 per day fine for failure to register vacant properties. See Title V, Art. 17, § 7(a) Arlington Laws and Regulations. Likewise, the City of New Bedford imposes $300.00 per day fines for failure to register. § 6-150, New Bedford Code of Ordinances. Finally, the District of Columbia imposes a fine of up to $5,000.00 for failing to register. See § 42–3131.10.a, Code of the District of Columbia. Therefore, it is my opinion that rather than fining vacant commercial building owners solely because of a lack of a tenant, the City impose fines only if it adopts a vacant property registry and a vacant property owner fails to register its property. CONCLUSION Neither the City nor the CRA may limit the amount of property owned by any one organization without violating core constitutional principles as well as Florida statutory law. However, the City may regulate vacancies of commercial businesses in the downtown area by enacting a vacancy registration and requiring a reasonable registration fee. Fining property owners merely because their properties are vacant does not seem like a permissible activity, and neither the City nor the CRA may impose a vacancy tax. On the other hand, the City may fine vacant property owners if the City adopts a vacant property registry and the vacant property owner fails to register the property.