HomeMy WebLinkAboutSubmittal-7MEMORANDUM OF MORNINGSIDE CIVIC ASSOCIATION,
INC., ROBERT STEBBINS, SCOTT CRAWFORD AND ELVIS
CRUZ IN SUPPORT OF APPEAL OF CLASS 2 SPECIAL
PERMIT APPLICATION, CITY OF MIAMI ZONING BOARD
CASE NO. 03-0308 AND 03-0309 FOR PROPERTIES
LOCATED AT 5101 AND 5225 BISCAYNE BOULEVARD,
MIAMI, FLORIDA
1. Attached at Tabs 1 and 2 are copies of pertinent portions of the planning and
zoning department files for 5101 Biscayne Boulevard (Tab 1) and 5225 Biscayne Boulevard
(Tab 2). Both files show that Class 2 permits were applied for on November 23, 2003. As of
that date, the only law in effect protecting Biscayne Boulevard was the 1991 SD -9 overlay
district ordinance which incorporates Section 1305 of the Zoning Ordinance. (Tab 3) This
ordinance protected the boulevard in only general terms. Thus, Section 609.3.1 simply stated
that:
A Class II Special Permit shall be required prior to approval of any
permit ... for the erection of any new building ....
Section 609.3.2 listed the relevant considerations in making a Class II Special Permit
determination:
The purpose of the Class II Special Permit shall be to ensure
conformity of the application with the expressed intent of this
district, [and] with the general considerations listed in Section
1305....
Section 1305 stated:
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Sec. 1305. Considerations generally; standards; findings and
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determinations required.
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As appropriate to the nature of this special permit involved and the
particular circumstances of the case, the following considerations
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and standards shall apply generally, in addition to any other
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standards and requirements set forth concerning the class or kind
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of permit being considered. City agents, agencies, or boards
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charged with decisions concerning special permits shall make, or
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cause to be made, written findings and determinations concerning
such of the following matters as are applicable in the case, shall
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reflect such considerations and standards specifically in the record
and shall be guided by such considerations and standards in their
decisions as to issuance of permits, with or without conditions and
safeguards, or denial of applications.
1305.8. Control of potentially adverse effects generally.
In addition to the review of detailed items indicated above, as
appropriate to the particular class or kind of special permit and the
circumstances of the particular case, review for appropriateness
shall be given to potentially adverse effects generally on adjoining
and nearby properties, the area, the neighborhood, or the city, of
the use or occupancy as proposed, or its location, construction,
design, character, scale or manner of operation. Where such
potentially adverse effects are found, consideration shall be given
to special remedial measures. Appropriate any particular
circumstances of the case, including screening or buffering,
landscaping, control of manner or hours of operation, alteration of
proposed design or construction of buildings...or such other
measures as are required to assure that such potential adverse
effects will be eliminated or minimized to the maximum extent
reasonably feasible, and that the use or occupancy will be
compatible and harmonious with other development in the area to a
degree which will avoid substantial depreciation of the value of
nearby property." (Emphasis added)
2. The initial plans submitted in late November 2003 for these buildings showed
structures of 135 feet tall with forty-five foot garages placed directly abutting Morningside's
single-family homes. In March and May, 2004 Planning and Zoning rejected these plans
through what it calls "Pre -Application Design Review Comments." Under both Tabs 1 and 2
you will find a number of these documents. Planning and Zoning computerizes its various Class
II and other projects and categorizes them as to whether they are complete, whether the projects
are under construction, whether the projects are approved, whether the projects entail a
completed application or whether Planning and Zoning is merely reviewing the projects on a
preliminary basis. Attached at Tab 4 is a printout which Planning and Zoning provided
Submitted into the publiC
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Priscilla A. Thompson
City Clerk
representatives of the appellants dated February 20, 2004. It plainly shows that, as of that date,
February 20, 2004, both the 5101 and 5225 applications were deemed to be in their
"preliminary" stages, not in their "application" stage. There was, thus, no "completed
application" as of February 20, 2004 and for at least one month thereafter, nor can the
application even be considered to have been filed. As stated in Section 1304.2.2:
1304.2.2. Application forms; completion before processing. For
purposes of establishing time limitations on processing, no
gMlication shall be deemed to have been filed unless and until the
gpplication 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.
3. Indeed, in both cases, the projects were ruled as being out of scale with the
surrounding neighborhood. By "Pre -Application Design Review Comments" dated November
25, 2003 in both files, Planning and Zoning wrote:
The building appears out of scale within the existing context of
single family homes to the east of the site. Consider reducing
the height of the building to better reflect the character of the
surrounding residential neighborhood.
The same comment was repeated in "Pre -Application Design Review Comments" dated January
13, 2004 in both cases. Indeed, in both files the Planning and Zoning department's "Design
Review Checklist" states that both projects were reviewed as to their "scale comparison with
building/neighborhood" and found to be wanting.
4. On March 25, 2004, Planning and Zoning gave notice of an intended decision that
it would approve the structures but only subject to conditions. In both cases, Planning and
Zoning wrote:
It is found that the building mass is out of scale with the
existing context of single family homes to the east, also the
building's height should be compatible with the new
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item p?-- iT o n11!
Priscilla A. Thompson
City Clea.
regulations that are in the process of being adopted for this
part of Biscayne Boulevard, which specify a height limit of
eight (8) stories and ninety-five (95) feet maximum height.
5. It was at that time that Morningside residents (including the appellants here) became
aware of what was transpiring. By letters dated March 18, March 29, April 26 and June 11,
2004, Messrs. Stebbins, Crawford, Cruz, Alonso and the Morningside Civic Association advised
Planning and Zoning of their desire to intervene in these proceedings. They objected to the rigid
application of the then proposed 85/95 height limitation ordinance because of "its many flaws,"
stating that they objected to the projects' incompatibility in design, character and scale with the
neighboring community. They specifically requested the right to intervene and provide
additional information of a rebuttal nature to the proposed findings of the Planning and Zoning
Department and to participate in any further hearings or conferences. They requested a
conference with the director. These requests were not granted.
6. Nevertheless, the "Pre -Application Design Review Comments" dated May 4,
2004 in both cases, reflect that the proponents of these projects reduced their heights from their
then 117 feet to 87 feet 4 inches (5101) and 97 feet 4 inches (5225). However, in the interim,
this Commission had already approved a comprehensive amendment to the Miami Zoning
Ordinance 11000 in January 2004 in response to the Omnipoint decision (Tab 5); passed on first
reading the initial 85/95 SD -9 ordinance and an associated moratorium ordinance; postponed the
second reading of both ordinances from March 11, 2004; and on April 29, 2004, considered the
initial 85/95 ordinance on second reading. On that date, Planning and Zoning also issued to this
Commission the attached "Final Report and Recommendations to City Commission for Special
Meeting of April 29, 2004." (Tab 6)
7. The April 29 Final Report attempted to take account of the substantial opposition
at first reading to the initial 85/95 ordinance as being overly restrictive, i.e., "one -size -fits- "
Submitted Into the puID'1�c
4 record inconnection with
item �-
. Prisplla A.
Thompson
� Clerk
Indeed, the minutes of the first reading reflect vigorous opposition from all elements of the
community, not just Morningside homeowners. (Tab 7) Thus, Planning and Zoning's Final
Report first recommended that the Commission proceed with the adoption on second reading of
the 85/95 ordinance as written with two modifications for the benefit of landowners: (a) to
increase the allowable height to 120 feet for the so-called "mega block" and north of 79th Street;
and (b) to allow properties that are over 150 feet in depth a maximum height of 120 feet but only
if such depth is sufficient to provide a maximum height of 25 feet at the rear of the property with
a 45 degree angle height limitation running from the rear of the property towards Biscayne
Boulevard. At the same time, the April 29 Final Report also advised the Commission to file for
immediate PAB consideration, 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. The SD -9 ordinance
was passed on April 29 with those modifications.
8. Just before April 29, the Class II permits at issue here were still in their
"preliminary, pre -application" stage.' By that time, the minutes of this Commission establish
that the SD -9 ordinance was passed on first reading on February 26th; that this Commission
created a special committee to meet with Planning and Zoning to resolve the difficulties inherent
in the "one -size -fits -all" approach; that the committee met throughout late March and April 2004;
that Planning and Zoning saw that its "mission was primarily to come back with a
recommendation to the Commission as to how to improve this ordinance to better protect the low
density neighborhoods that are adjacent to the boulevard while not being so restrictive as to harm
the economic development and viability of the boulevard"; that the Final Report was the result of
this work; that the ordinance is no longer a "one -size -fits -all ordinance anymore"; that the
t Indeed it was on May 4, 2004 that the revised plans reducing the height of these buildings to 85 and 97 feet were
first submitted for these projects.
Submitted Into the public
record in connection with
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Priscilla A. Thompson
City Clerk
ordinance recognizes the differences in different property locations along the boulevard, different
sizes and proximity to the R-1 and 2 zoning"; and that besides restricting the rear height of
commercial properties to 25 feet where they abut residential districts, this proposed ordinance
makes an additional "very important distinction... that as far as SD -9 is concerned, the
boulevard is the front and these rear set -back limitations and angle limitations, which we
came up with, will be taken wherever they abut that lower density residential district, and I
think there are a lot of people that felt very comfortable with that particular modification,
because it clarifies once and for all that the back part ... that faces the residential is
considered the rear and the boulevard is considered the front." The program recommended
in the Final Report passed unanimously, the ordinance was signed by Mayor Diaz on June 17,
2004, and the recommended modifications to the 85/95 ordinance were sent to the PAB. (Tab 7)
9. Despite this clear mandate as to the Commission's will, Planning and Zoning
nevertheless approved the instant Class II 5101 and 5225 projects on July 21, 2004, without
reference to the pro -homeowner modifications described above. That approval occurred only
one day before the passage on first reading of the revised SD -9 ordinance which limited the rear
height of Biscayne Boulevard structures to 25 feet and imposed the 45 degree angle in trade for
the neighborhood's agreement to reduce the setbacks from 20 feet to only 5 feet. By July 21,
new SD -9 had already gone through the PAB and was about to be adopted unanimously by the
Commission the next day for the "further protection of the low-density neighborhoods." The
ordinance passed unanimously on first reading, on second reading on September 27th and was
signed by the mayor on September 30. (Tab 8)
10. On July 30, 2004, these Petitioners timely appealed Planning and Zoning's ruling
approving these projects without application of the principles of the new SD -9. (Tab 9) The
Submitted Into the public
record in connection with
item Pi -1s" on al-1_e.o
6 Priscilla A. Thompson
City Clerk
matter was heard by the zoning appeals board on October 4, 2004 (Tab 10). A review of the
record shows that the zoning appeals board, in response to a preemptive motion by Greenberg
Traurig, prohibited these Petitioners from putting on any evidence that the projects as then
approved, failed to conform with the city zoning ordinance (without reference to the new 85/95
ordinance) because they improperly borrowed for the commercial properties only the side
setback limitations of adjacent R-1 properties as opposed to their rear setbacks. This argument,
which relates to Section 907.3.2 of the city ordinance, was rejected peremptorily by the planning
advisory board based upon a totally unfounded assertion by Greenberg Traurig that these
Petitioners, who were improperly precluded from intervening in the pre -application stage of this
project, and who were ignored after the project reached the application stage in 2004, failed to
appeal Ana Gelabert's November, 2003 "rescission" of an interpretive memorandum written by a
zoning administrator favoring the neighborhoods. Greenberg Traurig based that assertion on
what has now been discovered to be a false representation to the zoning board that those two
memoranda "were in the files" relating to these projects. We have inspected the files. They are
not in there. The zoning board's actions are based on no evidence or law whatsoever, and in fact,
amounted to a denial of due process of the affected citizens who sought to intervene.
11. Further, Planning and Zoning stated on the record at the hearing that they had
applied the "zoning in progress" doctrine to reduce the size of these projects from the heights
originally applied for to approximate those permitted by the first 85/95 ordinance. By doing so,
Planning and Zoning, at least initially, correctly recognized the concept of zoning in progress.
This concept (see case law attached at Tab 11) clearly permits a municipality with zoning powers
to apply ordinances which are still in the course of being adopted toep ndin applications so as to
prohibit applicants from gaining approval of projects which are clearly inconsistent with zoning
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Priscilla A. Thompson
City Comic
then workingits s way through the legislative ative process. As this Commission well knows, the issues
of height, bulk and mass limitations on Biscayne Boulevard go back to at least 1991 and have
been a matter of great publicity and concern for the last several years through various charrette
and master plan efforts (see Tab 12 for a history of those efforts).
12. Indeed, the record reflects that the zoning appeals board wanted to apply the new
restrictions at the time of the October 4, 2004 hearing. They asked the city attorney whether they
could do so. Incorrectly, the city attorney advised them that they could not because the new SD -
9 ordinance had not yet been enacted. This advice was incorrect. The zoning in progress
doctrine as applied by the Florida courts clearly permits application of the new ordinance.
13. Furthermore, the zoning ordinance itself permits retroactivity in this context. As
demonstrated above, in late March 2004, Planning and Zoning deemed the applications for 5101
and 5225 complete but ruled that they would only be granted if they conformed to the provisions
of the not -yet enacted first 85/95 ordinance, improvements to which were already well under
discussion. But it was only after the second reading of the ordinance on April 29 that these
applicants reduced the height of their projects, with 5225 still not being in compliance because it
is 97.5 feet tall, not 95. Accordingly, 5101 and 5225 were not only aware of zoning in progress,
but indeed acquiesced to this requirement made by Planning and Zoning. Then, Planning and
Zoning waited until one day before the first reading of the new SD -9 ordinance and with full
knowledge of its contents (25 foot height max. and 45 degree angle) before approving these
applications, without applying the safeguards of the new SD -9 designed to protect the
neighborhood, This cynical action forces the neighborhood again to go through expensive legal
proceedings.
Submitted lnto the public
record in connection, with
item► ?_?z -1 S o ho n
8 prisalla A. City Clerk,
14. While all of this was going on, this Commission heard the Kubik MUSP
application in which Kubik, represented by the same counsel as these applicants, obtained
approval of its project premised upon a model which showed the buildings before you now as
cMl3dng_with the 25 foot height and 45 degree setback of the new SD -9 ordinance. How can
counsel argue on behalf of one its clients that these projects will comply with the new SD -9 for
MUSP purposes, yet now claim for another client that they do not have to comply for Class II
purposes? Neither the zoning in progress doctrine nor these facts were taken into account when
the zoning appeals board peremptorily struck the appellants' arguments and denied them the
opportunity to place evidence and arguments on these issue in the record.
15. Further not taken into account is the language of Section 2505.4.1 of the Zoning
Ordinance itself. It provides:
2505.4.1. Applications and permits. Any property owner or
lawful representative thereof, who, prior to the effective date of
any legislation repealing or modifying regulations which allow the
requested activity, has properly filed a complete application for a
development permit(s) with the appropriate city department, is
hereby authorized to proceed with such application(s) regardless of
the subsequent repeal of regulations relevant to such requested
activity, unless the context contrary is specifically decreed.
(Emphasis added)
As we have demonstrated here, the limitation of scale and the protection of neighborhoods have
been the law in the city of Miami along Biscayne Boulevard since the enactment of the SD -9
overlay in 1991. No subsequent legislation, be it the Omnipoint ordinance of January 2004; the
moratorium ordinance; the original 85/95 ordinance; or the new 85/95 SD -9 ordinance, operated
to "repeal" any regulation which allowed these applicants to build an oversized, over -massed
building. Over -sized, over -massed buildings have been illegal since 1991. The enactment of
these ordinances merely gives definition to the original SD -9. Only in a case where a subsequent
ordinance rgpeals a prior ordinance does Section 2505.4.1 apply. Planning and ZoningubiiC
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item P?: 1,r '
Priscilla A. Thom
admittedly and correctly applied the zoning in progress doctrine, but only for half of the
ordinance. Nothing in 2505.4.1 prohibits the application here of the entire ordinance.
WHEREFORE, these appellants request that the granting of the Class II permits in these
matters be reversed and the matters remanded to the Board of Zoning Appeals with instructions
to deny the permits without prejudice to their resubmittal in conformity with the requirements of
the new SD -9 ordinance.
Submitted Into the public
record in connection with
item �_on I - i P -o
10 Priscilla A. Thompson
City Clerk
# 2400391_vl
Respec T"s Otted,
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Andrew Didktnan, Esq., Counsel for
MORNINGSIDE CIVIC ASSOCIATION, INC.,
Robert Stebbins, Scott Crawford, and Elvis Cruz
Submitted Into the public
record in connection with
item'P2� n - l - o q
Priscilla A. Thompson
11 City Clerk