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HomeMy WebLinkAboutCity Attorney DocumentsJanuary 17, 2001 T1s. Susan E. Trench, .Esq- Goldstc1n, Tanen & Trench; .P.A. Two South Biscayne BIN d. One Biscayne Tower, Suite 3700 Miami, Florida 33131 Facsimile: (305) 374-71632 RE. Lucia Dougherty aia/o Laurence Eisenberg v, CON1, et a]. Case No.: 05-409 AP 51.01. Biscayne Boulevard Dear Ms, Trench, As suggested by your enclosed correspondence of January 11, 2007, we think that this is a viable way to proceed regarding this matter. Accordingly, we are asking that our office of Hearing Boards please schedule this matter before the Zoning Board and the City Commission. This case falls under the "Morningside" ruling and the findings of fact under §1305, as amended in 2004, need to be made by the City. Sincerely, s_ e� RAFAEL, SUAP,EZ-RIVAS Assistant. City Attorney Enclosures as stated_ RSR/aa cc: Maria J. Chiaro, Esq_ — including copy of the Mandate and Amended Opia7ion of July 14, 2006 Anel X. Rodriguez including copy of the Mandate and Amended Opinion of July 14, 2006 I eresita g, e£ nandez without attachment Michael Sastre, Esq. — without attachment Ana Gelabert-Sanchez — without attachment OFFICE (0,F,c i lr 1TY ".TTC,�RNEI'. , i4 SAA. ?;€d A%enUP, 5c W� 94rz �91�rni, 1 o,;,�a 3,!3O �r37;3 FROM CIRCUIT COURT APPELLATE DIVISION JUDICIALELEVENTH FLORIDAMIAMI-DADE COUNTY, t ssi said cause in accordance with the opinion of this COURT attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the STATE OF FLORIDA. Lower Tribunal Case Number(s): R040764 WITNESS the Honorable Jerald Bagley, Administrative Judge of the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit of Florida and the seal of the said Circuit Court at Miami, August 09, 2006. HARVEY RUVIN, Clerk of the Circuit Court of the Eleventh Judicial Circuit in and for =fide County. M IN COPIES FURNISHED COUNSEL OF RECORD AND ANY PARTY NOT REPl- BY COUNSEL Panuata. fay-�,. act NOT FINAL UNTIL TIME EXPIRE S TO FILE RE -HE -AR ING MOTION AND, IF FILED, DISPOSED OF LUCIA DOUGHERTY, on behalf of Contract vendee, J, Laurence Eisenberg, Trustee Petitioner, V. CITY OF MIAMI, FLORIDA, a Florida municipal corporation, MORNINGSIDE CIVIC ASSOCIATION, INC., a Florida corporation, ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD and ELVIS CRUZ, Respondents. IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL, CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA APPELLATE; CASE NO. 05A09 AI' LOWER CASE: NO. R040764 e Amended opinion filed this % , 2006. An appeal from the City of Miami Commission, Susan Trench, Esq., for the Petitioner. Michael A. Sastre, Esq., for the Respondents. Jorge L. Fernandez, Esq., Office of the City Attorney, for the City of Miami, Florida. Before FERNANDE.Z, SCHWARTZ, and P EREYRA- SHU MINED, JJ. Having thoroughly revie-%��,,ed the pleadings and papers in this case,, the ruling of the City of Miami Commission should be reversed and rernandcd. Lucia A. Dougherty, as the Petitioner and the zoning applicant on behalf of the record title owner, C"hetbro, LU Morningside Development LLC is the project developer. The subject property is located at 5101 Biscayne Boulevard in Miami, Florida. The proposed development is regulated by Section. 609 of the City of Miami Zoning Code, Sly -9 Biscayne Boulevard North Overlay District Regulations. In accordance with the requirements of the SD -9 Regulations, the Petitioner applied for a Class 11 Special Permit. The proposed development would .be a mixed -tike project, consisting of residential units with retail space on the ground floor. On November 20, 2003, the Petitioner's application was referred to the City of Miami Zoning Department for review of the Class 11 Special Permit. On April 29, 2004, the first amendment to the SD -9 Regulations was adopted imposing a ninety-five (95) foot height restriction on construction for new residential projects located in the district. This amendment to Zoning Ordinance I1000 became effective thirty days after adoption. On July 21, 2004, the City of Miami Zoning Department issued a final decision approving the Class 11 Special Permit for the proposed development subject to conditions. The conditions required the Petitioner to revise its plans and incorporate design modifications recommended by the City of Miami Planning and Zoning Department. A day later, on July 22, 2004, the Commission passed on its first reading the second amendment to the SD -9 Regulations, mandating a twenty-five (25) foot height limitation on rear setback structures, such as garages abutting a 2 reside tial zoned area. This specific lei_& restriction. applied to properties over .5th ;feet in depth as of April 29, 2004, On August 23, 2004, the Petitioner filed its completed application; whIch included additional height modifications in compliance with the first amendment. The second arr endment was adopted on its second and final reading held or, September 2i, 2004, On October 27, 2004, the Petitioner was granted the Class 11 Special Permit. The Respondent, Morningside Civic Association appealed the issuance of the permit to the City of Miami Zoning Board. On December 13, 2004, the Zoning Board affirmed the issuance of the special permit. Thereafter, Respondent, Morningside Civic Association appealed the decision of the .Zoning Board to the City of Miami Commission (hereinafter "Commission.") On September 23, 2005, the Commission convened a heaving on the subject appeal. At this hearing, the Commission heard testimony constituting new evidence which was not presented to the Zoning Board. Without snaking specific written findings, the Commission issued a general statement that "the Class 11 Special permit does not meet the applicable requirements of Zoning Ordinance No. 11000, as amended." As such, the Commission reversed the decision of the Zoning Board. Based on this ruling, the Petitioner filed its petition for writ of certiorari requesting that the appellate court quash the decision of the Commission. As a preliminary matter, the Court addresses the issue of standing raised by the Respondent. Pursuant to Sections 2005 of the Miami Zoning Ordinance "ars appeal may be taken by any person or persons, jointly or severally, aggrieved by any decision of the City Commission." Similarly.. Section 163.3215, L Stat. (2004) sets forth a liberalized standing requirement to "alloy, an adversely affected third party to maintain an action," Pa-�T:e v. City of 'ami, 2005 WL 3054001 (Fla, 3.d DCS 2005), Case lav precedent clearly establishes that an adversely affected party includes the "owner, developer, or applicant for development order," Id. This Court finds that the Petitioner, as applicant, possesses the requisite standing to assert this claim p-,nding before the Court. Further, the Court finds that the record title owner to the subject property remains unchanged from the zoning application originally filed. Florida courts have established the standards for review of local agency action on the first-tier, circuit court level. On appeal, the circuit court must determine: (1) whether procedural due process is accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence;. Broward County v. G. B. V. International. Ltd., 787 So. 2d 838 (Fla. 2001), Haines City Community Development v.....Heggs, 658 So. 2d 523 (Fla. 1995). In the instant case, the Commission did not make specific findings of fact. Florida case law does not require specific findings of fact provided that the ruling is supported by competent substantial evidence. Bell South Mobilit Inc, v. Miami -Dade County, 153 F. Supp. 2d 1345 (Fla. USDC So. Dist. 2001), Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993). However, the City of Miami Zoning Code imposes certain standards. Section 1305 of the City of Miami Zoning Code expressly provides that: City agents, agencies, or boards charged with decisions concerning special permits shall make., or cause to be made; written findings and determinations concerning such of the fallowing matters as are applicable in the case, shall reflect such considerations and standards specifically in the record... lu Based op Section 1305; the ("ity, Conumission was mandated to include in their ruling written findings which specificallyset forth the considerations and standards that arc supported by substantial competent evidence. The City Cornmission failed to comply with this requircmQnt, basing its ruling on a General statement, The critical reason for rcquir ng an administrative agency to state their conclusions and orders with specificity is to facilitate judicial review and bolster decisions. Cit f of Winter bark v. Wtrop®litan Plannin Or anization for the Orlando Urban Area, 765 So. 2d 797 (Fla. 1st DCA 2000), The City is bound by the procedural requirements unposed by the code and cannot renege on its promise to its citizens to upfold the code. Gulf & Eastern Development Cotporation v: Cit of Fort Lauderdale', 354 So, 2d 37 (Fla, 1978). Failure of an agency to adhere to its own regulations constitutes a departure from the essential requirements of the lay. Rosa Hotel Developers, Inc. v. City of Delray Beach, 10 Fla. L. Weedy Sapp. 600b (Fla. 15th Cir, Ct. 2003). As such, the ruling of the City Commission fails to observe the essential requirements of the law, the second prong of first tier appellate review. A second issue in the case at bar concerns the admission of new evidence at the hearing; before the City Corrrmission. The new evidence considered by the City Commission was not presented to the Zoning Board. The traditional scope of appellate review limits consideration of matters to materials available to the lower court or tribunal. Fla. R. App, P. 9.190(c). Conducting a de novo hearing exceeds the authority of appellate review. G. B. V. International , Ltd., 787 So. 2d at 846. Section 1201 of the City of Miami Zoning Ordinance provides that: The City Commission shall have o l_y the folio -wing duties: (4) Reviewing, 5 upon roci;aest, decisions of the Zoning flcarcl�1 e it serves in an appellate capacity with respect to decisions r,f ...thy; director ref planning. building and zoning. (Emphasis added) The usage of the word "only" limits the scope of `review" in an appellate capacity. By comparison, Section 1305 of the City of Miami Zoning Ordinance, expressly provides that "new materials may be provided by the Zoning Board -where such materials are pertinent to the determination of the appeal_" This express provision empowers the Zoning Board to receive new materials. There, is no similar provision for the City Commission to receive new evidence. Accordingly, the City Commission was limited to review of the record received from the Zoning Board. The mature of inquiry narrows as the case proceeds up the judicial ladder. City of Deerfield Beach v. AFaillant 419 So. 2d 624 (Fla. 1982). By conducting its own de novo assessment, the City Commission usurped the authority of the Zoning Board. G. B. V. International Ltd., 787 So. 2d at 846. As such; by reversing the Zoning Board's issuance of the Special permit, the City Commission failed to follow the essential requirements of the law. Based on the foregoing procedural errors, this matter is reversed and remanded for further proceedings consistent with this opinion and with controlling case la -vv set forth in Morningside Civic Association v. City of Miami Commission, 917 So. 2d 293 (Fla. 3d DCA 2005). rUM._ OF RECORD AND 6 IN THE DISTRICT COURT OF FLORIDA THIRD DISTRICT il)LY TERM, A,D. 2006 DECEMBER 1, 200 MOP NIVIGSID CIVIC, ASSOCIATION, INC. ET AL., Appellar;t (s) /Petitioner (s) , vs. LUCIA DOUGHERTY, ETC., Appellee (s) /Respondent(s). CASE INTO.. 3D,06-200 LOWER TRIBUNAL NO. 05--409 AP AMENDED ORDER Respondent's motion to strike City of Miami's notice of adoption of appellant's brief is granted, and the City of Miami's notice of adoption of appellant's brief is hereby stricken. Following review of the petition for writ of certiorari and the response and repay thereto, it is ordered that said petition is hereby denied. CP Ei'+ G�i�tSTEN and F LE cT�.tz,�,;c, ii,, and SCK'ruARTZ,Sen1o%. judge, concur. cc, Michael A. Sastre Rafael E. Suarez--R-vas Susan E, Trench Hon. ivarn F. Fernandez Hon. Laurence A. Schwartz Hon, C. Pereyra-Shuminer ag O _ LO . ` 4_ T111 D, D_ STID-1 `rr 7T'LY TERMS A-%, 2006 NOVEMBER 30, 2006 MOP—NIa11GS T DE L.i-VI ice• ASSOC'IAT'ION, INC. ET AL., V LUCIA DOL3GHERTY, ETC., Appellee (s) /Respondent ts, . CASE NC., 3D06-20,09 LOWER TR BUN11," NO, '05_qO9 Fold ow nQ_ re-viewof the petition for 111ri t of �er�i�r�r? and the response and reply thereto, it JiLs ordered that said petition is hereby denied. GERS'rFN and FLETCHIER, Ji., and SCHWARTZ, Senior Judge, concur. cc: Mich,ael A. Sastre Rafael E. Suarez -Rivas Susan E. Trench Fon. Ivan F, Fernandez Hon. Lawrence A. Schwartz Hon. C. Pereyra-Ski<uminer ag