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HomeMy WebLinkAboutSubmittal-3ROD ALONSO, Petitioner, VS. CITY OF MIAMI ZONING BOARD, and CERTAIN PROPERTIES LOCATED AT 5101 AND 5225 BISCAYNE BOULEVARD, MIAMI, FLORIDA Respondents. RE: CLASS II Special Permit Applications CASE NOS. 03-0309 and 03-0308 SUBMITTED INTO THE PUBLIC RECORD FOR ITEM vz is ON a -Is -o . PETITIONER'S MOTION TO VACATE AND/OR IN THE ALTERNATIVE, TO REMAND THE CITY OF MIAMI ZONING BOARD DECISION APPROVING OF CERTAIN PROJECTS AT 5101 AND 5225 BISCAYNE BOULEVARD, MIAMI, FLORIDA Petitioner, ROD ALONSO, by and through undersigned counsel and pursuant to Article 20, City of Miami Code, Section 2001, et. seq., and hereby files this Petition/Motion to Vacate and/or in the Alternative, to Remand for further considerations, the oral ruling of the Zoning Board of Appeals on October 4, 2004, approving of development of certain projects at 5101 and 5225 Biscayne Boulevard, and Denying Petitioner's Zoning Board Appeal, and as grounds therefore, state as follows: FACTUAL BACKGROUND AND RULINGS OF THE ZONING BOARD BELOW 1. Rod Alonso (ALONSO), Petitioner herein is a resident of Morningside, residing at 451 NE 53rd Street. ALONSO is also a former Board member of the Morningside Civic Association. 2. On October 4, 2004, the City of Miami Zoning Board of Appeals considered, at least in part, the arguments and objections raised by Petitioner ALONSO with regard to the 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 172751.1 04— ► Rio S—��3 CASE NO. PE 03-0309 development of two parcels of land located at 5101 and 5225 Biscayne Boulevard, and directly abutting and adjoining the single-family residences of the Morningside Neighborhood. 3. In oral rulings which were not reduced to a final written order, the Zoning Board of Appeals dismissed (3) three of the (4) four points raised in the appeal, and denied the appeal on the fourth argument presented which addressed the bulk, size, scale, and compatibility factors of Section 1305 of Zoning Ordinance 11000. 4. The (3) three points which were summarily dismissed at the outset of the hearing, and at the request of the developer's counsel who made an oral "motion to dismiss"1, were: 1) the argument and evidence that the Miami Neighborhood Master Plan should be considered in determining whether these projects complied with the applicable zoning requirements; 2) that the requirements of Section 907.3.2 should be applied to these properties in terms of establishing set -backs; and, 3) that the requirements of the amendments to the SD -9 ordinance should be considered by the Zoning Board in terms of establishing rear -lot line heights and elevations, and maximum building heights and elevations. 5. The First point raised about the applicability of the Comprehensive Plan was dismissed because the Board felt that this argument should not have been raised in the forum of the zoning board, but should be part of a later and separate proceeding. Submitted Into the n public 't record in conn 11.18- oa wit itern?z.... 15 on priWaqe A. Thompson hy Clerk ` There was no advance notice of any "motion to dismiss" provided to the Petitioners, and the motion was not in writing or filed with the Board at the time of the hearing. -2- 100 SOUTHEAST SECOND STREET -SUITE 3800 - MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 - FACSIMILE (305) 579-0261 172751.1 CASE NO. PE 03-0309 6. The Second point raised concerning the issue of set -backs contained in 907.3.2 was dismissed because counsel for the developers convinced the Board that that issue should have been appealed earlier. 7. And the Third point which was raised and dismissed without allowing the Petitioners formal argument or evidence was the issue of the applicability of the SD -9 ordinance as amended, including both the amendment passed on April 29, 2004 (85/95 feet), and the amendment first proposed for "immediate amendment" by Planning and Zoning on April 29, 2004, requiring a rear lot line maximum elevation of 25 feet with a sloping angle of 45 degrees. 8. As will be detailed below, the Zoning Board of Appeals were under the erroneous legal opinion that the SD -9 which should govern these projects was that which "was in place at the time that these projects were approved". As is illustrated in detail below, that is not what the law is, and it was improper for the Board to rely on this advice in dismissing any argument or evidence on this point. 9. Additionally, it appear that the Board construed the time of "approval" for these projects to be November 2003 when the very first preliminary plans were filed. This also was an erroneous conclusion, as it is clear that the original plans were only preliminary designs, and did not become "final approved plans" until July 21, 2004 when the Ms. Gelabert, Director of Planning and Zoning signed the "Final Decision" for these projects. 10. For the purposes of these proceedings it is imperative that the Board appreciate that this date of July 21, 2004 was the actual date of "approval" for the purpose of the determination of which zoning laws could be considered and applied to the 2 projects in this case. Submitted Into the public record in connection with - 3 - item P 2- -1 G .on I I- I8 -04 100 SOUTHEAST SECOND STREET • SUITE 3800 • MWMI, FLORIDA 33131 Priscilla A. Thompson TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 172751.1 City Cleric CASE NO. PE 03-0309 TIMELINE OF THE SD -9 ZONING CHANGES 11. As is well known to the City Commission, the development and zoning of this area of Biscayne Boulevard has been of great public interest to both the residents in the area and the developers seeking to build new construction along the Biscayne Boulevard corridor abutting the Morningside neighborhood from 50th Terrace through 60th Street since the 1980's. 12. Over the past few years the City Commission, Planning and Zoning, Planning Advisory Board, Neighborhood Charettes, and local developers, including the architect at issue in the above 2 projects, Zyscovich, have all been actively involved in the process of developing building in height, bulk, and set -back limitations and restrictions on high-rise development along this area of Biscayne Boulevard. 2 In the past several months these longstanding community efforts culminated in the passage of two zoning ordinance amendments to the original SD -9 overlay, which specifically set maximum limitation and restrictions on the height, scale, and set- backs for buildings along this sensitive portion of Biscayne Boulevard. 13. On April 29, 2004, the first amendment to the SD -9 overlay ordinance was passed unanimously by the City Commission, limiting the heights of buildings to 85ft/95ft for commercial and residential, respectively, that would be applicable to any proposed construction in this area of Biscayne Boulevard. Prior to that time there was also consideration at the Commission level, Planning and Zoning level, and community level of more specific additions to 2 Petitioner adopts by reference the documentary appendix filed by counsel Andrew Dickman, Esq. on behalf of the Morningside Civic Association, and relies upon said documents for the factual support of the arguments contained herein. Submitted Into the public record in connection with - 4 - item Pz - I s on H-17 100 SOUTHEAST SECOND STREET -SUITE 3600 • Mimi, FLORIDA 33131 Priscilla A. Thompson TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0261 C 172751.1 City Clark CASE NO. PE 03-0309 the ordinance for proposed building on the Biscayne Boulevard shallow lots which directly abut the R-1 homes in the 400 Block of Morningside. These discussions centered around increased set -backs and the use of a sloping rear lot line to limit concerns of the resident who would be most directly effected. 14. Significantly, on the same date as passage of the 85/95 foot maximum, April 29, 2004, Planning and Zoning also issued to the City Commission its "Final Report and Recommendations to City Commission for Special Meeting of April 29, 2004". Specifically included in that Final Report was the advice to the Commission to file for PAB to consider for immediate amendment, an amendment which would institute a 25 foot rear height limit (instead of the current 40 foot height proposed) with a 45 degree angle on all SD -9 properties that abut an R-1 or R-2 district. (i.e. ALONSO's property) 15. Subsequently, on July 22, 2004, the City Commission passed on first reading this amendment to the April 2004 SD -9 overlay, which included the rear lot line requirement limiting the maximum height of buildings on the rear lot line to 25 ft, with a tapering effect of a 45 - degree angle drawn from the 25ft height to the maximum height of the proposed building. This amendment was then passed on second and final reading on September 27, 2004. TIMELINE OF THE DEVELOPER'S PRELIMINARY AND SUBSEQUENT DESIGN APPLICATIONS, AND THE ZONING BOARD'S DESIGN REVIEW PROCESS 16. On November 24, 2003, the developer's architect, Zyscovich, submitted its preliminary Class II plans for consideration of residential housing complexes at 5101 and 5225 Biscayne Boulevard, which called for building heights of 135 feet, abutting the residential properties of Morningside, including the residence of ALONSO. ,� Submitted Intn�the oP� record in cion -5- item 'P?- 1. s on 1 l� 4 Priscilla A. Thompson 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 city Clerk TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 172751.1 CASE NO. PE 03-0309 17. According to the Zoning Board files, those plans were still considered "preliminary" as of February 20, 2004, and therefore not even in the application phase as of that time. 18. Subsequently, on March 25, 2004, Planning and Zoning gave notice of its "Intended Decision" that it intended to approve of the subject projects, but only if they complied with certain conditions, specifically, the zoning changes which were in the process of being adopted (although not yet adopted) at that time. To quote the specific language of the Ms. Gelabert, Director of Planning and Zoning, on March 25, 2004, she stated as follows: "It is found that the buildings mass is out of scale with the existing context of single family homes to the east, also, the buildings height should be compatible with the new regulations that are in the process of being adopted for this part of Biscayne Boulevard, which specify a height limit of (8) eight stories and ninety-five (95) feet maximum height." 19. Based on this Decision and its directives to the developers in this case, it is clear, and must be undisputed that the legal concept of zoning in progress was already being applied by the developer and Planning and Zoning to these projects as of that date. 20. Moreover, Zyscovich obviously accepted the fact that zoning in progress was being applied to these projects because on May 4, 2004, the "Pre -application Design Review Comments" from Planning and Zoning reflect that the building heights were reduced to 87 feet -6- 100 SOUTHEAST SECOND STREET -. SUITE 3800 - MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 - FACSIMILE (305) 579-0281 172751.1 Submitted Into the public record in connection with �s on lk-4-0 itemsn llaA.1'homp�n P City Clerk CASE NO. PE 03-0309 in the case of 5101 and 97 feet in the case of 5225.3 21. Additionally, at the time of the October 4, 2004 Zoning Board Appeal, Zyscovich, Ms. Dougherty, and Lourdes Slayzak of Planning and Zoning all agreed that throughout the application and approval process they were trying to comply with the SD -9 amendments which they knew were in the process of being adopted. 22. During the entire time period that Zyscovich was meeting with Planning and Zoning to get past the preliminary design stage (from late November 2003 through July 2004), the City Commission, PAB, and community were forging ahead with the long-awaited definitions and amendments to the already existing SD -9 overlay. Most significantly, on April 29, 2004, 5 days before the above "Preliminary Design Review Comments" were passed along to Zyscovich and the developers, the City Commission passed the first amendment to the SD -9 overlay. 23. Perhaps even more telling was the fact that also on April 29, 2004, (again 5 days before the Pre -application Design Review Comments above), Planning and Zoning issued to the City Commission its "Final Report and Recommendations to City Commission for Special Meeting of April 29, 2004". Specifically included in that Final Report was the recommendation 1. 3 As stated in Section 1304.2.2: 1304.2.2. Application forms; completion before processing. For purposes of establishing time limitations on processing, no application shall be deemed to have been filed unless and until the application shall have been completed; all plans, reports or other information, exhibits, or documents required by this zoning ordinance or administrative rules adopted pursuant hereto shall have been provided; and all fees due at time of filing shall have been paid. Submitted Into the public record in connection with item Pz - i 5 on 1111 - 7 - priscilla A. Thompson 100 SOUTHEAST SECOND STREET •. SUITE 3800 • MIAMI, FLORIDA 33131 City Clerk TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 172751.1 CASE NO. PE 03-0309 to the Commission to file for PAB consideration, immediate amendments which would institute a 25 foot rear height limit with a 45 degree angle on all SD -9 properties that abut a residential district. 24. This "immediate amendment" for 25 feet/45 degree angle was the result of a compromise between zoning, the developers, and the community, and was negotiated with Morningside residents in exchange for the neighborhood's agreement to reduce the setbacks from 20 feet to only 5 feet, 25. Notwithstanding this clear mandate and expression of the Commission's will and intentions (on and certainly before the April 29, 2004 Planning and Zoning Final Report) to further restrict building height and development in this sensitive residential area, Planning and Zoning approved the instant Class 115101 and 5225 projects on July 21, 2004, without any reference to or consideration of the pro -homeowner modifications described above limiting rear lot line height and angle. 26. It is interesting that the approval for the 2 projects at issue in this case was signed off on July 21St, only one day before the passage on first reading of the additional SD -9 amendments which limited the rear lot line height of Biscayne Boulevard structures. 27. For purposes of the "zoning in progress" and due process arguments below, it is important to note that by July 21, the new SD -9 (with 25 foot height limits and 45 degree angle) had already gone through the PAB and was about to be adopted unanimously by the Commission on first reading the very next day for the `further protection of the low-density neighborhoods." Submitted Into the public record in connection with - 8 - item 23::j 6- on I I 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 Priscilla A. Thompson TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 City Clerk 172751.1 CASE NO. PE 03-0309 Not surprisingly, the Planning and Zoning endorsed further amendments to the SD -9 passed the Commission unanimously at that first reading on July 22, 2004. THE HEARING BEFORE THE ZONING BOARD OF APPEALS 28. On October 4, 2004, the City of Miami Zoning Board of Appeals heard the arguments and objections of Petitioners/Appellants, and ultimately overruled these objections and permitted the development of the 5105 Project as outlined in their plans submitted on July 21, 2004. These bases of the appeal are outlined in paragraphs 3 — 7 above. 29. Petitioner, ALONSO, through his then counsel, Andrew Dickman, Esq., contended that the Zoning Board of Appeals should have considered the enacted amendments, and the almost enacted amendments to the SD -9 overlay. 30. However, the Zoning Board of Appeals dismissed this point on appeal without opportunity for full argument or presentation of evidence because of the erroneous legal conclusion that the 5105 and 5225 Projects were governed only by the ordinance in effect at the time of the initial design plan filing in November, 2003. In fact, this legal opinion provided by the Zoning Board's attorney was an incorrect statement of law and this, alone, warrants reversal and remand of the Zoning Board's decision, as will be more fully set forth below. 31. When the issue of which SD -9 and 907.3.2 ordinances should apply and control to the applications for these two projects was raised in response to the developer's "motion to dismiss", Board member, Ileana Hernandez, specifically sought the legal advice of George Wysong, the Board's attorney. Their exchange was as follows: blIC Submittediintnect on�nn'th recd item p.? -,. �.-° Thompson Rriscilla �City Clerk -9- 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0261 172751.1 CASE NO. PE 03-0309 MS. HERNANDEZ: In consideration for this, are we supposed to be using SD -9 and 907.3.2 as it was when this was approved, or as it is now? MR. WYSONG: You would have to look at what was approved at the time. MS. HERNANDEZ: What was in place when it was approved and not what it now. MR. WYSONG: When it was approved, what the law was at the time. 32. A short while later, Lourdis Slayzak from Planning and Zoning described the process that these two projects went through during the eight-month period during which they were pending, from November, 2003 through July, 2004, which was the date that Final Decision of approval was given. Her testimony was as follows: MS. SLAYZAK: What was difficult was that the SD -9 amendment was in progress and we were not allowed to apply the new SD -9. But through our design review comments, we gave a lot of very similar comments, and the applicant responded by modifying the project tremendously in order to bring it down. 33. Later on in the proceedings, and when the decision of whether to grant or deny the Petitioner's appeal was being voted on by the Board, Board member, Mr. Pena, had the following comments: MR. PENA: I always had the feeling that the Code needed to be changed; that's what we are working with now. The applicant has made a proper application within the guidelines at the time. You can't change the ballgame to say it's not three outs, it's now two outs, in the middle of the ballgame. 34. The only other Board member to speak or offer any type of comment as for the basis of his vote was Mr. Schulman. Mr. Schulman made the following comment immediately after that of Mr. Pena, above: -10- 100 SOUTHEAST SECOND STREET • SURE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FAcsIMILE (305) 57M281 172751.1 Submitted into the public record in connection with item 4z,_ 1 5r on 1g - p Priscilla A. Thompson City Clerk CASE NO. PE 03-0309 MR. SCHULMAN: Zoning is changing and I that's beginning to bring these projects more into context. 35. What is clear from these comments is that all along, the Zoning Appeals Board was concerned about the context and size of these buildings, and the issue of whether the current SD - 9 requirements could be applied to this project, which passed final approval on July 21, 2004. Unfortunately, they were provided with the incorrect legal advice on this point and were advised that they could only consider the zoning as it existed at the time of approval. SUMMARY OF THE ARGUMENT It has been long held by the Florida appellate courts, and by zoning boards across this state, that a planning and zoning board, and even a court, can utilize the concept of "zoning in progress" to require a development that is still going through the planning stages, and even development where construction has not yet begun, but where a permit has already been issued, to comply with zoning changes that are still in the process of being developed. This was exactly the case with regard to these two projects where Ms. Gelabert on March 25, 2004 explicitly told the developers in this case that "the building's height should be compatible with the new regulations that are in the process of being adopted for this part of Biscayne Boulevard". Moreover, and as has been previously noted, as of April 29, 2004, there was already extensive discussion about the institution of the 25 ft. height limit with 45 degree angle and, in fact, a mandate was passed down through Planning and Zoning that they were to take immediate action to develop an "immediate amendment" on the 25foot/45 degree angle issue and include it within the SD -9 overlay. Submitted Into the public record in connection with item,pz_15 on Il -1 -P -o Priscilla & Thompson City Clerk -11- 100 SOUTHEAST SECOND STREET •. SUITE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FACSIMILE (305) 57"281 172751.1 CASE NO. PE 03-0309 Accordingly, it was quit clear to Planning and Zoning, and to the City Commission, developers and the community in general, that as of that date, new limitations were going to be included for the specific properties at issue in this case, requiring a maximum height on the rear property line of 25 ft, with the 45 -degree angle. Moreover, with regard to the issue of whether the Board and the Planning and Zoning Department could apply the "zoning in progress" doctrine, it is quite evident that that was exactly what they were already doing during the time frame from November 2003 through the time of final approval on July 21, 2004. The express directives from Planning and Zoning to these developers in March 2004 was that even though the amendments/enhancements to the SD - 9 overlay had not yet been passed, they would be required to comply with the height limitations of eight stories and 95 ft. Indeed, even during the course of the proceedings before the Zoning Appeals Board on October 4, 2004, Mr. Zyskovich, the architect for these projects, conceded that these efforts to comply with the SD -9 ordinance and its height limitations were specifically requested by Planning and Zoning, and were specifically adopted by Zyskovich and the developers herein. Accordingly, it seems arguably disingenuous to now say that while "zoning and progress" was appropriate to apply back in late March 2004 and through July 2004, it was inappropriate for the Zoning Board to consider in October 2004, (6) six months after the mandate came down from the City Commission regarding the 25 ft height limitation and 45 degree angle, one day before that amendment to the ordinance formally passed on first reading, on July 22, 2004. All parties involved, including the architect, developer, their attorney, and Planning and Zoning were aware that "zoning in progress" was being applied to these projects, yet for some -12- 100 SOUTHEAST SECOND STREET -. SUITE 3800 - MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 - FACSIMILE (305) 57"261 172751.1 Submitted into the public' record in connection with item P2 --t c on A -- Priscilla A. Thompson City Clerk CASE NO. PE 03-0309 inexplicable and therefore arbitrary reason they decided to pick and choose what aspects of the amendments to the SD -9 overlay would be applied. Ultimately, on October 4, 2004, at the time of the hearing before the Zoning Appeals Board, the argument that the new SD -9 ordinance could be applied to this project, as of the date it was formally approved on July 21, 2004, was rejected, and Petitioner was precluded from presenting any evidence or argument in support of its application when the Board granted the developer's oral "motion to dismiss". Somewhat disturbingly, counsel for the developers made this oral motion to dismiss notwithstanding her client's earlier agreement with the Board's mandate in March 2004 that they would be governed by the SD -9 zoning changes which were in the process of being developed during the entire time that these applications were pending from November 23, 2003 through July 21, 2004. Additionally, Petitioner through his counsel contend that the Zoning Board failed to consider any arguments or evidence at the time of the October 0 hearing as to whether the proposed 5101 and 5225 Projects conform with and are consistent with section 907.3.2 of the City of Miami Zoning Code governing rear set -backs. Petitioner contends that this was a violation of his procedural due process rights, as well as a departure from the essential requirements of law, as set forth more fully in the "zoning in progress" argument herein. Next, Petitioner contends that the Board erred when they failed to consider competent substantial evidence on the issue of "Scale" as defined in Section 1305, Ordinance 11000 of the City of Miami Zoning Code. Under that ordinance, passed in January 2004, "Scale" is defined as the "The spatial relationship among structures along a street or block front, including -13- 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 172751.1 Submitted Into the public record in connection with item _2�-�on 1 -g - p Priscilla A. Thompson City Clerk CASE NO. PE 03-0309 height, bulk and yard relationships. Proportional relationship of the size of parts to one another and to the human figure." Next, Petitioner contends that it was a violation of his procedural due process rights and a departure form the essential requirements of law for the Zoning Board of Appeals to refuse to consider, outright, the requirements and provisions of the Comprehensive Master Plan of City of Miami, which would have mandated lower bulk and decreased height of the proposed project, had the Master Plan been considered. Pursuant to the 1985 Growth Management Act, each county and municipality in Florida is required to prepare a comprehensive plan for approval by the Department of Community Affairs, and the adopted local plan must include principals, guidelines and standards for the orderly and balanced future economic, social, physical, environmental and fiscal development of the local jurisdiction. (See Section 163.3177(1), Florida Statutes, 1991.) Under Florida law, "all development, both public and private, and all development orders approved by local governments, must be consistent with the adopted local plan." (See Section 163.3194, Florida Statutes; Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993) In this case, where the Zoning Board of Appeals refused to consider any evidence or argument as concerns the Miami Neighborhood Comprehensive Plan for the City of Miami constitutes error, which warrants that the decision by the Zoning Board of Appeals be reversed and remanded with instructions to make the appropriate considerations as set forth herein. Lastly, Petitioner contends that the Zoning Board erred in failing to issue any written findings of fact, or legal conclusions as required by law so as to effect an orderly review of the Board's findings by the Commission and any subsequent reviewing court. Submitted Into the public record in connection with item E2 -I s on -14- Priscitia A. Thompson 100 SOUTHEAST SECOND STREET •. SUITE 3800 • MIAMI, FLORIDA 33131 City Clerk TELEPHONE (305) 374-4400 • FACSIMILE (305) 57"281 CV Clark 172751.1 CASE NO. PE 03-0309 LEGAL ARGUMENT I. THE ZONING BOARD OF APPEALS FAILED TO ADHERE TO THE ESSENTIAL REQUIREMENTS OF LAW AND VILOATED ALONSO'S PROCEDURAL DUE PROCESS RIGHTS WHERE THEY FAILED TO CONSIDER THE RECENTLY ENACTED PROVISIONS OF THE SD -9 ORDINANCE AND THE PROVISDIONS OF SECTION 907.3.2 UPON THE MISTAKEN BELIEF THAT THE APPLICATIONS OF 5101 AND 5225 GOVERNED BY THE ZONING IN PLACE AS OF THE DATE OF ITS INITIAL FILING, AND THAT THE DOCTRINE OF ZONING IN PROGRESS COULD NOT APPLY TO THE 5101 AND 5225 PROJECTS During the course of the proceedings on October 4, 2004, the Zoning Board of Appeals specifically sought the advice of their counsel as to whether the recent zoning changes contained in the SD -9 ordinance could be applied to the proposed projects in question. Mr. Wysong stated in no uncertain terms that the amended SD -9 ordinance could not be considered (with 25 foot max. rear elevation and 45 degree angle), and that the 5101 and 5225 Projects were frozen in time in terms of what zoning regulations and limitations could be applied to their development. The colloquy between the Chair, Ms. Hernandez and Mr. Wysong is detailed in totality above. It was clear from the context of the inquiry from the Zoning Board, and by the statements from the only (2) two Board Members to speak on the issue, Mr. Pena, and Mr. Schulman, that they had an interest in applying the more definitive provisions of the SD -9 ordinance to the proposed construction. However, when their counsel advised them the "zoning in progress" could not be considered by Planning and Zoning, and the Appeals Board, Petitioner's were not permitted to present evidence or argument to the contrary, and thus the enhancements to SD -9 (all of which had been passed by October 2004) were not considered. -15- 100 SOUTHEAST SECOND STREET •. SUITE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FACSIMILE (305) 57M261 172751.1 Submitted Into the public record in connection with item _ Pz-1-6 on ti -W.,04 Prisdila A. T City Clerk CASE NO. PE 03-0309 Perhaps most puzzling of this legal determination that the SD -9 enhancements could not be considered was the fact that zoning in progress had already been applied to these projects, and that both Planning and Zoning, and the developer, Zyscovich had agreed to its application. The Zoning Board of Appeals' decision to adhere to this advice constitutes a departure from the essential requirements of law, as well as a denial of ALONSO's due process rights where he was not given the opportunity to fully present countervailing arguments, or present evidence as to why the amendments should apply to affect the will and intentions of the Commission as stated in April 2004. The issue of "zoning in progress" has been addressed in numerous appellate decisions in Florida. In Gardens Country Club, Inc. v. Palm Beach County, 712 So.2d 398 (Fla. 4th DCA 1998), the Fourth District Court of Appeal considered the issue of whether it was appropriate to apply zoning changes which were passed after the formal application for use was filed by the developer, Gardens County Club. In that case, there was no question that Gardens Country Club had submitted their plans and in fact had received approval for plans in conformity with the 1980 Comprehensive Land Use Plan, and it was stipulated by the parties that the Gardens Country Club's application was "in compliance with existing regulations" prior to the enactment of the 1989 zoning restrictions. Notwithstanding this fact, the Palm Beach County Zoning Board, which was undertaking a general revision of its Comprehensive Plan at the time it received the application from the Country Club, refused to issue new applications. The County's rationale was that they did not wish to allow a development that would be inconsistent with the zoning amendments on which they were working. Submitted Into the public record in connection with item 22 -LG;- on 8 -pJ -16- Priscilla A. Thompson 100 SOUTHEAST SECOND STREET -SUITE 3800 -MIAMI, FLORIDA 33131 City Clerk TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0261 172751.1 CASE NO. PE 03-0309 Ultimately, this dilemma ended up before the Fourth District Court of Appeals, which held that the County Zoning Board's actions in refusing to consider the proposed development under the then existing Comprehensive Plan, and instead in considering it only under the pending plan, which changed the density requirement, was justified and warranted where they did not wish to permit development inconsistent with a plan which was under consideration, although not then enacted. Additionally, in Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2°a DCA 1980), rev. denied, 403 So.2d 405 (Fla. 1981), the Second District Court of Appeal explained exactly what was meant by zoning in progress, and when it could and should be applied. In that case the Court stated that "for a zoning change to be pending, it does not have to be before the City Council, provided the appropriate administrative department of the City is actually pursuing it. It is not essential that the property owner be advised of these activities. A city may retroactively apply a zoning amendment to deny a building permit if the amendment were pending at the time of the application for the permit. Smith at 689. See also: City of Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295 (Fla. 4' DCA 1987) (a municipality may properly delay issuance of a building permit where there is change in zoning in progress which would affect permit.); City of Boynton Beach v. Carroll, 272 So.2d 171, at 272 (Fla. 4h DCA 1973)(Where zoning ordinance was amended to limit building height to approximately four stories between time of original application for permit for seven -story building and time of granting of peremptory writ of mandamus compelling city and its building official to issue the building permit, and where application for permit was made after the publication of the required notice prior to amendment, ordinance in effect at time of the final judgment controlled, and city was under no duty to issue the building permit at time of the final judgment; Possession of a building Submitted Into the publiC -17- record in connection with 100 SOUTHEAST SECOND STREET -SUITE 3800 • MIAMI, FLORIDA 33131 item Pz -1 s on1- Le -o �.� TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 Priscilla A. Thompson 172751.1 rftY Clerk CASE NO. PE 03-0309 permit does not create a vested right, and a permit may be revoked where zoning law has been amended subsequent to issuance of permit in absence of circumstances which would give rise to equitable estoppel.) Given the fact that Florida law clearly allows for zoning in progress, and considering the fact that zoning in progress had already been applied (at least in part) to the projects at issue herein, the Zoning Board erred in refusing to consider arguments or evidence relating to zoning in progress in this instance, and similarly affected a denial of ALONSO's due process rights by refusing to hear such evidence and argument as to the applicability of SD -9 and Section 907.3.2. IL THE ZONING BOARD OF APPEALS FINDINGS RELATIVE TO "SCALE" WERE NOT SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE AND FAILED TO COMPLY WITH THE ESSENTIAL REQUIREMENTS OF LAW WHERE THE FINDINGS WERE NOT REDUCED TO WRITING, WHERE THE BOARD REFUSED TO CONSIDER BOTH WHERE THE DETERMINATION THAT THE PROPOSED PROJECT WAS TO "SCALE", WAS BASED SOLEY ON THE HEARSAY STATEMENTS OF THE ARCHITECT, ZYSCOVICH'S REFERENCES TO THE "FALLS" BUILDING AT 5701 BISCAYNE BOULEVARD, AND THE SEVEN -STORY RESIDENTIAL BUILDI NG AT 5995 BISCAYNE BOULEVARD The decision by the Zoning Board of Appeals was not supported by competent substantial evidence where the Board failed to consider the fact that 95% of the properties abutting Biscayne Boulevard between 48th Street and 87th Street, are two stories in height or less, and the only buildings abutting Morningside and above that height are the 5701 Falls building and the 5995 building, which are 10 stories and 7 stories in height, respectively. The Board also did not comply with the essential requirements of law, and in fact violated ALONSO's procedural due process rights where they summarily, and without argument, refused to consider application of the City's Master Plan. Submitted into the public record in connection with item n is on �g-o -18- Priscilla A. Thompson City Clerk 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 172751.1 CASE NO. PE 03-0309 Pursuant to Zoning Ordinance 11000, section 1305, "Scale" is defined as the "The spatial relationship among structures along a street or block front, including height, bulk and yard relationships. Proportional relationship of the size of parts to one another and to the human figure." Under this definition of scale, the Zoning Board was required to consider whether the proposed development along Biscayne Boulevard was proportional to the scale of the development and structures along the street and the block in question. In this case, there is no question that the 51St and 52nd Street blocks are comprised solely of one- and two-story single family homes, and even the existing structure along Biscayne Boulevard at this location is a two- story hotel. Accordingly, by virtue of this clear and unambiguous definition of scale, it is clear that the Zoning Board failed to consider the block front where this building was to be located. Moreover, the only evidence relied upon by the Zoning Board was the testimony concerning the 5701 and 5905 buildings, to the exclusion of the totality of evidence that the other structures along this same corridor were and are all of a one- and two-story nature. Competent substantial evidence is "tantamount to legally sufficient evidence." Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000). Competent substantial evidence has been defined as evidence that a reasonable mind would accept as adequate to support an administrative body's conclusion.. Degroot v. Sheffield, 95 So. 2d 912 (Fla. 1957); See also Lee County v. Sunbelt Equities, 619 So. 2d 996 (Fla.2d DCA 1993). The evidence relied upon by an administrative body to sustain their finding "should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." Degroot at 916. -19- 100 SOUTHEAST SECOND STREET •. SUITE 3800 • MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0261 172751.1 Submitted into the public record in�n on � item �_.-- Priscilla A. Thompson lerk CASE NO. PE 03-0309 In this case, the sole evidence considered were the hearsay statements of the developer's architect who cited to the only 2 buildings in the affected area with a height of greater than 4 stories. The 2 buildings relied upon are located at 5701 and 5995 Biscayne Boulevard. These are the only buildings greater than 4 stories which abut Morningside Neighborhood. In fact, of the 2 buildings cited by the developer, one of them, the taller, 10 story "Falls" building at 5701 was constructed illegally, and after its construction, the owner had to purchase an abutting home in Morningside in order to satisfy the building's FAR, and in order to obtain a certificate of occupancy. Based on the foregoing, and the totality of evidence known to this Commission about the structures on this corridor of Biscayne Boulevard, and this Special District, the evidence relied upon was not competent substantial evidence, but in fact, was just a sampling of the only 2 buildings along this corridor, which could lend any support to the developer's argument as to scale, and one of those buildings was built illegally to begin with. III. THE ZONING BOARD OF APPEALS FAILED TO ADHERE TO THE ESSENTIAL REQUIREMENTS OF LAW AND VILOATED ALONSO'S PROCEDURAL DUE PROCESS RIGHTS WHERE THEY REFUSED TO CONSIDER EVIDENCE OR ARGUMENT RELATING TO THE APPLICABILITY OF THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN In accordance with the Growth Management Act, Miami -Dade County was required to, and did, in fact, prepare a comprehensive plan adopting principles, guidelines, and standards for future economic, social, physical and environmental development. (See Miami Comprehensive Neighborhood Plan (as amended through November 25, 2003); Section 163.3177, Florida Statutes, 1991) Pursuant to Florida law, all development, both public and private, must be approved by local governments and must be consistent with the local plan. In this case, where the Zoning Board of Appeals refused to even consider any evidence or any argument regarding Submitted Into the pubW -20- record In connection with 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 item iE -) _son 172751.1 TELEPHONE (305) 374-1400 • FACSIMILE (305) 579-0281 Priscilla A. Thompson City Clerk . CASE NO. PE 03-0309 the applicability of the Master Plan, this amounted to deprivation of due process, while also being a departure from the essential requirements of law that the Comprehensive Master Plan must be considered, per Florida Statutes. By denying ALONSO the opportunity to present this evidence and legal argument, the Board departed form the essential requirements of law and violated the procedural due process rights of ALONSO to be heard on these issues. It is well settled in property disputes that no person may be deprived of their property rights without due process of law. See Art. I, Section 9, Fla. Const.; People's Bank of Indian River County v. State, Dept. of Bank. & Fin., 395 So. 2d 521, 524 (Fla. 1981). In order to satisfy due process standards, the opportunity to be heard must be meaningful, full and fair, and not merely colorable or illusive. Metropolitan Dade County v. Sokolowski, 439 So. 2d 932, 934 (Fla. 3d DCA 1983) petition for review denied, 450 So. 2d 488 (Fla. 1984); see also, Tauber v. State Bd. of Osteopathic Medical Examiners, 362 So. 2d 90, 92 (Fla. 4th DCA) cert. denied, 368 So. 2d 1374 (Fla. 1979)("fundamentally, due process requirements are satisfied if an opportunity for a meaningful hearing is provided prior to the final deprivation of the property interest"); Pelle v. Diners Club, 287 So. 2d 737, 738 (Fla. 3d DCA 1974)("it is fundamental that the Constitutional guarantee of due process, which extends into every proceeding, requires that the opportunity to be heard be full and fair, not merely colorable or illusive."). In the instant case, even a cursory review of the proceedings demonstrates that the Petitioners' efforts to have the Zoning Board consider the Comprehensive Master Plan for Miami -Dade County. By refusing to permit the Petitioners to present evidence of "zoning in progress" and the Master Plan and how they would or could effect the zoning Boards' determination of the 5101 and 5225 projects, The Board violated Petitioner's right to procedural Submitted Into the public record in connection with -21- item P2- I!r on I I -1? -6 100 SOUTHEAST SECOND STREET • SUITE 3800 • MIAMI, FLORIDA 33131 Priscilla A. Thompson TELEPHONE (305) 374-4400 • FACSIMILE (305) 579-0281 ,�2�5,., City Clerk CASE NO. PE 03-0309 due process, and simultaneously departed from the essential requirements of law which mandate that the Zoning Board, in the very least, consider the overall Master Plan as a back -drop to any proposed development. For these reasons, the oral ruling below of the Zoning Board must be vacated and or remanded for further consideration. IV. CONCLUSION Based on all of the foregoing factors, the decision of the Zoning Board of Appeals must be reversed and remanded for appropriate considerations, as more fully set forth herein. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and complete copy of the foregoing was Hand Delivered this 18th day of November 2004 to Ms. Teresita Fernandez, City of Miami, 444 S.W. 2 d Avenue, 7th Floor, Miami, FL 33130-1910, Lucia Dougherty, Esq., Greenberg Traurig, P.A., 1221 Brickell Avenue, 21 st Floor, Miami, FL 33131, Andrew Dickman, Esq., 9111 Park Drive, Miami Shores, FL 33138, City of Miami City Commission, Miami City Hall, 3500 Pan merican Drive, Miami, FL 33133. -22- 100 SOUTHEAST SECOND STREET - SUITE 3800 - MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 - FACSIMILE (305) 579-0281 172751.1 Submitted Into the public record in connection with item Pz-tfs on 1L i gbh Priscilla A. Thompson City Clerk