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HomeMy WebLinkAboutSubmittal-Correspondence-Susan E. TrenchGOLDSTEIN, TANEN & TRENCH, P.A. Law Offices Writer's e-mail: strench(iDjg tpa.com February 27, 2008 HAND DELIVERED Maria J, Chiaro, Esquire Rafael Suarez -Rivas, Esquire Office of the City Attorney 444 S.W. 2' Avenue, Suite 945 Miami, F133133 Re: 5101 Biscayne Blvd. Class II Special Permit Dear Maria and Rafael: One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 SUBMITTED INTO THE PUBLIC RECORD FOR ITEMPt_1i ON a ae Pe . Enclosed please find copies of letters delivered to the Commissioners today outlining the applicant's position in this matter, together with one set of the attached exhibits. These are being delivered in agreement with Mr. Sastre, who also intends to make a similar delivery. Both Mr. Sastre and I did attempt to contact you about this procedure, but were unsuccessful in doing so. If there is any problem in providing the Commission with this information prior to tomorrow's hearing, please advise. Thank you. Sincerely, Susan E. Trench Enclosures cc: Michael Sastre, Esq. MA5101 Biscayne\Letters\Chiaro.002.wpd �' 1 Ire V )d .,.E es I,: I e �'...W. }' �� r' ��1,., ti,... •..WJ GOLDSTEIN, TAI1.TEN & TBENCI3, P.A. Law Offices One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Writer's e-mail: strenchPatoa.com Facsimile (305) 374 — 7632 February 27, 2008 HAND DELIVERED Commissioner Angel Gonzalez Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORN1714GSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS H SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Gonzalez: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101 "). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class 11 Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Doughe v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 3 Submitted into the public record in connection with item PZ -11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate— that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit `B" hereto), Petitioner agreed this step ' In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Gonzalez February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5 10 1, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade Counly v. Dusseau, 826 So. 2d 442,444 (Fla. 3 T DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232,236 (Fla. 3 T DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward Countyv. Coe, 376 So, 2d 1222, 1223 (Fla. 4`h DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4`h DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. Yd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this puncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3" DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3`d DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing —particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5`h DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZA I on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 9 testimony. See, Mills v._Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. I" DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4"' DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 F1a.L. Weekly Supp. 344a (Fla. l I" Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3`d DCA 1999). The above-cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. MA5101 Biscayne\Letters\L-Commissioner Gonzalez mpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk EXHIBIT "A" Submitted into the public record in connection with item PZ -11 on 02-28-08 Priscilla A. Thompson City Clerk MA NDA TE FROM CIRCUIT COURT APPELLATE DIVISION ELEVENTH JUDICIAL CIRCUIT MIAMI-DADE COUNTY, FLORIDA 05-409 AP LUCIA DOUGHERTY a/a/0 Laurence Eisenberg PETITIONER vs. Biu v � 2006 i�r'� ` RO inti v t `e` C,`TER CITY OF MIAMI, FLORIDA, MORNINGSIDE CIVIC ASSOCIATION INC., Rod Alonso, Ron Stebbins, Scott Crawford, and EMS Cruz RESPONDENTS This cause having been brought to this Court by appeal, and after due consideration the court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in 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 forde County. By: De , c COPIES FURNISHED T0: Submitted into the public COUNSEL OF RECORD AND record in connection with ANY PARTY NOT REPRESENTED BY COUNSEL item PZ.11 on 02-28-08 Priscilla A. Thompson Mandate.form.dot City Clerk NOT FINAL UNTIL TIME EXPIRES TO FILE RE -HEARING MOTION AND, IF FILED, DISPOSED OF LUCIA DOUGHERTY, on behalf of Contract vendee, J. Laurence Eisenberg, Trustee p'ea IryIr `L't^:'. N Cl P RSC IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA P-etitioner, APPELLATE -CASE NO. 05409 AP v_ LOWERCASE NO. R040764 CITY OF MIAMI, FLORIDA, a Florida municipal corporation, MORNINGSIDE CIVIC ASSOCIATION, INC., a Florida corporation, ROD ALONSO, ICON STEBBIlVS, SCOTT CRAWFORD and ELVIS CRUZ, Respondents. krnended 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 FERNANDEZ, SCHWARTZ, and PEREYRA-SHUMINER, JJ. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk FERNANDEZ, Judge. Submitted into the public record in connection with item PZ -II on 02-28-08 Priscilla A. Thompson City Clerk Having thoroughly reviewed the pleadings and papers in this case, the ruling of the City of Miami Commission should be reversed and remanded. Lucia A. Dougherty, is the Petitioner and the zoning applicant on behalf of the record title owner, Chetbro, Ltd. 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, SD -9 Biscayne Boulevard North Overlay District Regulations. In accordance with the requirements of the SD -9 Regulations, the Petitioner applied for a - -Class II Special P6 t. The proposed development would be a mixed-use 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 II 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 11000 became effective thirty days after adoption. On July 21, 2004, the City of Miami Zoning Department issued a final decision approving the Class II 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 residential zoned area. This specific height restriction applied to properties over 150 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 amendment was adopted on its second and final reading held on September 27, 2004. On October 27, 2004, the Petitioner was granted the Class II 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, Momingside 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 hearing on the subject appeal. At this hearing, the Commission heard testimony constituting new evidence which was not presented to the Zoning Board. Without making specific written findings, the Commission issued a general statement that "the Class II Special permit does not meet the applicable requirements of Zoning Ordinance No. I1000, 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 Section 2005 of the Miami Zoning Ordinance "an appeal may be taken by any person or persons, jointly or severally, aggrieved by any decision of the City Commission." Similarly, Section 163.3215, Fla. Stat. (2004) sets forth a liberalized Submitted into the public record in connection with item PZ.11 on 02-28-08 3 Priscilla A. Thompson City Clerk standing requirement to "allow an adversely affected third party to maintain an action." Payne v. City of Miami, 2005 WL 3054601 (Fla. 3rd DCA 2005). Case law 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 pending 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 supportc.: oy 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 Mobility 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 following matters as are applicable in the case, shall reflect such considerations and standards specifically in the record... Submitted into the public record in connection with item PZ -11 on 02-28-08 4 Priscilla A. Thompson City Clerk Based on Section 1305, the City Commission was mandated to include in their ruling written findings which specifically set forth the considerations and standards that are supported by substantial competent evidence. The City Commission failed to comply with this requirement, basing its ruling on a general statement. The critical reason for requiring an administrative agency to state their conclusions and orders with specificity is to facilitate judicial review and bolster decisions. City of Winter Park v. Metropolitan Planning Organization for the Orlando Urban Area, 765 So. 2d 797 (Fla. 1st DCA 2000). The City is bound by the procedural requirements imposed by the code and cannot renege on its promise to its citizens to uphold the code. Gulf & Eastern Development -Corporation V. City of Fort Lauderdale, 354 So. 2d 57 (Fla. 1978). Failure of an agency to adhere to its own regulations constitutes a departure from the essential requirements of the law. Rosa Hotel Developers, Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 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 Commission. 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 only the following duties: (4) Reviewing, Submitted into the public record in connection with item PZ.11 on 02-28-08 5 Priscilla A. Thompson City Clerk upon request, decisions of the Zoning Board when it serves in an appellate capacity with respect to decisions of ...the director of 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 nature of inquiry narrows as the case proceeds up the judicial ladder. City of Deerfield Beach v. Vaillant, 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 law set forth in Morningside Civic Association v. City of Miami Commission, 917 So. 2d 293 (Fla. 3d DCA 2005). COM FU ED TON COURM OF RECORD AND TO ANY PARTY NG77 :.PRES By COUNS& Submitted into the public record in connection with item PZ,11 on 02`08 Priscilla A. Thompson 6 City Clerk EXHIBIT "B" Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Page 3 MIAMI ZONING BOARD HEARING 1 Thereupon: 2 The following proceedings were had: 3 CHAIRWOMAN HERNANDEZ: Item Number 4 5, please. Monday, October 4, 20y� 5 6 THE CLERK: Item Number 5. Approximately 5101 Biscayne Boulevard. This 6:00 p.m. 7 is an appeal by Andrew Dickman, Esquire on City Hall 8 behalf of the Morningside Civic Association, 3500 Pan American Drive 9 Inc. and Rod Alonso, Ron Stebbins, Scott Miami, Florida 10 Crawford and Elvis Cruz of the Class II 11 Special Permit Application No. 03-0309, 12 approved with conditions by the Planning 13 Director on July 21, 2004 for new 14 construction. Reported By: Kathy Schwab, Court Reporter 15 CHAIRWOMAN HERNANDEZ: Thank you. Notary Public, State of Florida 16 MR. DICKMAN: Good evening, Ma'am Esquire Deposition Services, LLC 17 Chair, members of the Board. Andrew Dickman N. Miami Office Job # 18 with law offices at 9111 Park Drive in Miami Phone - 800-224-1268 19 Shores, Florida. 305-651-0706 20 For the record, I'd also like you to 21 note that I have a Masters degree in urban 22 and regional planning and I have held an 23 American Institute of Certified Planning ESQUIRE DEPOSITION SERVICES 24 recognition for almost -- going on 15 years, (305) 651-0706 25 as well as a practicing attorney. Page 2 Page 4 1 APPEARANCES: 1 I represent the Morningside Civic 2 3 Chairwoman: Ileana Hernandez Zoning Board Members: 2 Association. They have numerous residents Miguel Gabela 3 who live in and adjacent to the proposed 4 Joseph Ganguzza, Esq. Charles Garavaglia 4 development. Quite succinctly, our position 5 Juvenal Pine 5 is that this development violates the Miami Allen Shulman 6 Neighborhood Comprehensive Plan, which, in 6 Angel Urquiola Georges William 7 several places -- and I will put these into 7 8 the record -- in several areas, the land Lucia Dougherty - Attorney for the Applicants 9 use -- 8 Bernard Zyscovich - Attorney for the Project AndrewDickman- Attorney for Rod Alonso. Elvis 10 MS. DOUGHERTY: Madam Chair, could I 9 Cruz & Morningside Assoc. 1 I interrupt for a second? 10 Lourdes Slayzak - Asst Director, Planning & Zoning 12 I would like to proffer a Motion To 11 13 Dismiss on three out of the four grounds 12 George Wysong - Zoning Board Attorney 14 that have been alleged by Mr. Dickman, and I Mr. Fernandez - City Attorney 15 think that this is one of them. And I think 13 Lionel Toledo - Zoning Administrator 16 it would be appropriate for me to at least 14 17 make that motion prior to any testimony 15 18 given on the comprehensive plan. 16 17 19 CHAIRWOMAN HERNANDEZ: I will defe 18 20 to our attorney. zo 21 MR. WYSONG: Thank you. 22 I think that's appropriate. There's an 22 Submitted into the public 23 appeal and she's moving to dismiss the 23 2a record in connection with 24 appeal, so it would be in order to hear the :5 item PZ.11 on 02-28-08 25 Motion To Dismiss first. And then if those � Priscilla A. Thompson............. ......::............... . City Clerk 1 (Pages 1 to 4) Esquire Deposition Services (305) 371-2713 Page 5 1 motions are denied or reserved, then 1 the last one is that they also say that we 2 Mr. Dickman can go into detail. 2 have not applied the correct zoning 3 CHAIRWOMAN HERNANDEZ: Thank you 3 district -- or the correct standards of the 4 Lucia. 4 SD -9. 5 MS. DOUGHERTY: Lucia Dougherty with 5 Again, I have the same motion in 6 offices at 1221 Brickell Avenue. I'm here 6 connection with those two. These aren't 7 on behalf of the owner and applicant. With 7 things that you can consider because they 8 me here today is Jerry Cohen and Larry 8 aren't things that the Planning Department 9 Eisenberg, who are the applicants. 9 can consider when they make their 10 There are four grounds that have been 10 recommendation. In fact, those issues were 11 alleged. And if you pull out Mr. Dickman's 11 determined by the Zoning Administrator in 12 appeal, he has -- the first ground is that 12 November of 2003, when, you'll see -- right 13 it violates the Comprehensive Plan. Second 13 after Mr. Dickman's appeal, you'll see the 14 ground is that it violates 907.3.2. Third 14 Class II permit zoning referral, and it's 15 ground is that it violates the standards of 15 signed by the Zoning Administrator 11-20-03, 16 1305. And the fourth ground is that they 16 that decision, where it says that the Zoning 17 violate due process in that they didn't 17 Division of the Zoning and Planning 18 apply SD -9. 18 Department found this to be in compiance 19 On the first ground, it violates the 19 with all applicable zoning requirements and 20 Comp. Plan, this is not something even the 20 requires a Class II. 21 Planning Department can consider when 21 So that the Zoning Administrator 22 issuing a Class II plan. In other words, 22 determined 907 was applicable. It 23 the Comp. Plan and the zoning ordinance must 23 determined what law regarding SD -9 was 24 be consistent. 24 applicable and no one appealed that 25 But we have not asked for a change in 25 decision. Notwithstanding the fact that all Page 6 1 the Comp. Plan. And this would be the same 2 thing as somebody trying to attack the Comp. 3 Plan when you issue a building permit. It 4 just cannot be done. It's not something 5 that the Planning Department can look at 6 when they are issuing its Class II's because 7 they have standards, and those are 1305. 8 And therefore, it's not something that this 9 Board can consider, as well. 10 CHAIRWOMAN HERNANDEZ: Hold on a 11 minute. 12 Lourdes, would you comment on that? Go 13 item by item. 14 MS. SLAYZAK: Lucia's correct. This 15 application did not seek an amendment to the 16 Comp. Plan. It is a special permit. 17 The criteria that we use for special 18 permit review is not the criteria for the 19 Comp. Plan amendment and they weren't 20 seeking a zoning change or Comp. Plan 21 amendment. It's different criteria. 22 CHAIRWOMAN HERNANDEZ: Okay. Lu 23 proceed, please. 24 MS. DOUGHERTY: The second standard is, they say that we violated 907.3.2. And Page 7 Page 8 1 abutting notices -- all abutting residences 2 were given notice of our appeal -- I mean, 3 our Class II permit application. 4 So, therefore, based on two grounds. 5 One is that it's untimely because they 6 didn't appeal that decision when they made 7 those decisions. And secondly, it's not 8 something that's part of the standards for 9 the Class II permit. You can't make 10 those -- those standards aren't in your 1 I Class II permit application standards, of 12 which I will pass out a copy when we get to 13 our hearing. 14 Based on that, I'd like the Board to 15 consider dismissing the first ground, the 16 second ground, not the third one, because. 17 that's the standards. That's the 1305, but 18 the fourth ground, as well. 19 CHAIRWOMAN HERNANDEZ: Thank 20 Lourdes. 21 Would you please comment on that? 22 MS. SLAYZAK: We have zoning here 23 that can comment on the zoning issues. But 24 what I do want to, I guess, tell the Board 25 is that when you're reviewing a Class II Esquire Deposition Services (305) 371-2713 2 (Pages 5 to 8) 3 (Pages 9 to 12) Esquire Deposition Services (305) 371-2713 Page 9 Page 11 1 Special Permit, you're reviewing it in an 1 proper criteria. 2 appellate way. You're here on appeal, and 2 CHAIRWOMAN HERNANDEZ.- Okay. 3 what you can do is approve the appeal, deny 3 MR. TOLEDO: Lionel Toledo 4 the appeal, or approve with modification. 4 (phonetic), Zoning Administrator. 5 That's within the jurisdiction of this Board 5 When the application came through, it 6 to do. 6 was checked for all standards and everything 7 But you must use the same standards 7 was fine. 8 that were used in the original Class II 8 CHAIRWOMAN HERNANDEZ: Everything, 9 Special Permit. You can't broaden the 9 it was recommended for approval under the 10 standards of the criteria. 10 standards that were current at the time? 11 CHAIRWOMAN HERNANDEZ: In other 11 MR. TOLEDO: Yes. 12 words, Lourdes, 907.3.2 what it was when 12 CHAIRWOMAN HERNANDEZ: Not the ones 13 this came through and not what it became or 13 that were or will become or in the process 14 is becoming or will become. 14 of. 15 MS. SLAYZAK: Correct. 15 MR. DICKMAN: Madam Chair, 16 CHAIRWOMAN HERNANDEZ: Thank you 16 procedurally, I'd like to point out, in a 17 MR. DICKMAN: Madam Chair, I would 17 court of law -- 18 like an opportunity -- 18 CHAIRWOMAN HERNANDEZ: Wait a 19 CHAIRWOMAN HERNANDEZ: Let me fin sh9 minute. We're not in a court of law here. 20 with Lourdes. 20 Let's not even go into a court of law. 21 Is Zoning coming up? 21 MR. DICKMAN: Candidly, this is a 22 MS. SLAYZAK: We have Zoning here, 22 quasi-judicial matter. 23 if you have any questions with the 23 CHAIRWOMAN HERNANDEZ: Mr. Wysong, 24 applicability. 24 would you like to comment on why we're not a 25 This application was filed prior to the 25 court of law, please. 3 (Pages 9 to 12) Esquire Deposition Services (305) 371-2713 Page 10 Page 12 1 amendment of SD -9, so it was not renewed 1 MR, WYSONG: Well, actually, you do 2 under the new SD -9. The new SD -9 was 2 have to afford Mr. Dickman the fundamentals 3 adopted very recently. This application, 3 of due process. And although we're not in a 4 because it was filed prior to that amendment 4 court of law, loose rules of evidence apply, 5 being passed by the City Commission, was 5 etc. However, a Motion To Dismiss has been 6 allowed to continue to be reviewed under the 6 heard and now, there should be a response to 7 applicable SD -9 at the time it was filed. 7 the Motion To Dismiss before the Board takes 8 And we have Zoning here that can 8 any action. 9 comment on 907. 9 MR. DICKMAN: Normally, when an 10 CHAIRWOMAN HERNANDEZ: Please. 10 attorney wants to proffer a Motion ToQ. 11 MALE VOICE: Excuse me. Could you 11 Dismiss, they will give notice to the other .3 12 give me some information on number three? 12 side that they are going to argue a Motion a c 13 MS. SLAYZAK: Which one was number 13 To Dismiss so that the other side would have 14 three? Oh, the 1305, that one? 14 an opportunity to prepare and argue those o 15 MALE VOICE: 1305, yes. 15 points. My colleague knows this. c 16 MS. SLAYZAK: 1305 is the criteria 16 For the record, I'd like to put that •� 17 and it is the standards that should be used 17 out there, that no notice to dismiss was . 18 for Class II. And that's when the appellant 18 presented to me whatsoever. That's fine, if �? 19 will go into his reasons why he believes it 19 she wants to make them. I have no problem 20 doesn't meet 1305. But that one -- 20 with that. I just want to put on the ri 21 CHAIRWOMAN HERNANDEZ: Lucia is 21 record, in a court of law, she would have 22 proposing to dismiss the first one, second 22 been required to give notice. 23 one and fourth one, not the third so we 23 CHAIRWOMAN HERNANDEZ: Okay. Bu' 24 don't have to consider the third one. 24 we're not in a court of law. 25 MS. SLAYZAK: The third one is the 25 Would you please refer to them. 3 (Pages 9 to 12) Esquire Deposition Services (305) 371-2713 Page 14 1 your future land use element and your 2 housing element, to name two chapters that 3 are in your Comp. Plan. Your own codes say 4 that the appeal can be made of any decision 5 of the Administrator. It does not limit it 6 to things that are just narrowly defined by 7 opposing counsel or what they claim that 8 they had to meet. 9 You, in fact, are required to comply 10 with your Comp. Plan. Under state law, 11 those development orders -- if you issue 12 development orders that are contrary to your 13 goals, objectives and policies -- and I, 14 again -- of course, you're not changing the 15 Comp. Plan. Nobody's alleging a future land 16 use map amendment here. Nobody's alleging a 17 textual change. Of course, that would have 18 a different direction. It wouldn't 19 necessarily come to you. It would go 20 through the Planning Advisory Board and 21 others. 22 Again, your decisions have to comport 23 with your Comp. Plan, your institutional 24 directive of how this City will plan and .5 grow, issue development orders. Page 16 1 granted and it complies with the zoning 2 code, it is in compliance with our Comp. 3 Plan. 4 Page 13 Page 15 1 MR. DICKMAN: Number one? 1 Do you want to rule on each item,.one 2 CHAIRWOMAN HERNANDEZ: Item two a id2 buy one? 8 four, so we can make a decision on those and 3 CHAIRWOMAN HERNANDEZ: Have you 4 then we'll get back to three. 4 concluded with the first item? 5 MR- DICKMAN: Yes, ma'am. 5 MR. DICKMAN: On the first item. 6 Under Florida Law, Chapter 163 -- your 6 CHAIRWOMAN HERNANDEZ: Lourdes, 7 planning staff knows this well and 7 could you, please, comment again on the 8 hopefully, your attorney does, as well -- 8 first item? 9 all development orders in the State of 9 MS. SLAYZAK: Yes. 10 Florida issued by municipalities are 10 Of course, all development approvals in 11 required to comply with your Comp. Plan. 11 the city comply with the Comp. Plan. What I 12 I'm sure all of you are familiar with 12 said was, or, I guess, maybe I needed to be 13 your goals, objectives and policies in your 13 more clear, when an application does not 14 Comp. Plan, and I'm sure all of you -all have 14 include an amendment to the Comp. Plan, the 15 been briefed on the weight this Comp. Plan 15 criteria, the standards that we measure that 16 carries with it. That your decisions, staff 16 application by are very different than when 17 decisions, all of these decisions, whether 17 it's a special permit. None of these, the 18 they be land development regulations or land 18 1305 criteria, the special permit criteria, 19 use changes or requests for textual changes 19 reflect the -- directly the Comp. Plan. 20 in the Comp. Plan development orders, i.e., 20 The City of Miami's Comp. Plan was 21 building permits, need to comply with your 21 found to be in compliance with our land 22 Comp. Plan. 22 development regulations, our zoning code. 23 Your Comp. Plan does have provisions in 23 The two must match. They have to be in 24 it for protecting adjacent and existing 24 compliance. So if a request for development 25 residential neighborhoods. It's throughout 25 approval comes in and a development order is Page 14 1 your future land use element and your 2 housing element, to name two chapters that 3 are in your Comp. Plan. Your own codes say 4 that the appeal can be made of any decision 5 of the Administrator. It does not limit it 6 to things that are just narrowly defined by 7 opposing counsel or what they claim that 8 they had to meet. 9 You, in fact, are required to comply 10 with your Comp. Plan. Under state law, 11 those development orders -- if you issue 12 development orders that are contrary to your 13 goals, objectives and policies -- and I, 14 again -- of course, you're not changing the 15 Comp. Plan. Nobody's alleging a future land 16 use map amendment here. Nobody's alleging a 17 textual change. Of course, that would have 18 a different direction. It wouldn't 19 necessarily come to you. It would go 20 through the Planning Advisory Board and 21 others. 22 Again, your decisions have to comport 23 with your Comp. Plan, your institutional 24 directive of how this City will plan and .5 grow, issue development orders. Page 16 1 granted and it complies with the zoning 2 code, it is in compliance with our Comp. 3 Plan. 4 The things that Mr. Dickman was saying 5 about protecting neighborhoods from 6 encroachment of land uses or incompatible X ..0 c c 7 development, those are all the goals, 'y 8 objectives and policies of our Comp. Plan. 9 But if the developer is not seeking to V 10 change and he's got his land use and zoning c a c 11 and the development complies with the rules ,.. 12 of that land use and zoning, then it is not 13 deemed an incompatible encroachment because a 14 he is meeting the letter of the law for •� a 15 zoning, and our zoning is in compliance with ' S 16 our Comp. Plan. r 17 So, I don't believe that a Comp. Plan 18 is -- throwing that out as a reason to deny 19 a Class II, when there's no Comp. Plan 20 amendment being sought. It's not part of 21 the criteria, not what's before this Board. 22 You're hearing an appeal of a Class II 23 Special Permit that's got different 24 criteria. 25 CHAIRWOMAN HERNANDEZ: Thank volk 4 (Pages 13 to 16) Esquire Deposition Services (305) 371-2713 Page 17 Page 19 1 Lourdes. 1 this case, Miss Dougherty's pointing to, you 2 Do any of the Board members have any 2 know, the bases that you set forth for the questions? 3 appeal, and I don't think that you're 4 And if they don't, then is anybody 4 terribly put upon to defend that issue. 5 prepared to make a motion for or against 5 1 would hope that you were prepared for 6 dismissal of part one of Item 4 -- no, 5 -- 6 that, so I do not see an inconsistency in 7 I'm sorry. 7 the Comp. Plan issue, so I'm going to vote 8 MALE VOICE: I move to deny the 8 yes in support of the motion -- the vote on 9 appeal. 9 the motion. 10 CHAIRWOMAN HERNANDEZ: No. Okay 10 MS. SLAYZAK: You voted yes. 11 Let me explain a minute. We're not working 11 Continue, please. 12 on the whole appeal, itself. On part one, 12 THE CLERK: Mr. Pina. 13 Item Number S. And it's not an appeal. 13 MR. PINA: Yes. 14 Miss Dougherty's proposing to -- 14 THE CLERK: Mr. Shulman. 15 MALE VOICE: Out of the four 15 MR. SHULMAN: Yes. 16 sections, the one that's proper is 1305, 16 1 understand the argument, Lourdes, 17 correct? So I move -- 17 you're saying, is that automatically, the 18 CHAIRWOMAN HERNANDEZ: Yes. 18 zoning has been deemed in compliance with 19 MALE VOICE: I move to remove the 19 the Comp. Plan. And therefore, if the 20 first two and the fourth. 20 project is in compliance with zoning, then 21 MALE VOICE 2: We haven't heard a 21 automatically, at least for legal 22 response on those other two elements. 22 purposes -- 23 CHAIRWOMAN HERNANDEZ: Pardon me 23 MS. SLAYZAK: For the purposes of 24 MALE VOICE 2: From the appellant on 24 this appeal, it is not one of the criteria. 25 those other two arguments, so we're only 25 MR. SHULMAN: I'll vote yes. Page 18 Page 20 1 considering the first argument, which 1 CHAIRWOMAN HERNANDEZ: Mr. Urquiola. 2 relates to whether or not there is a basis 2 MR. URQUIOLA: Yes. 3 to appeal, based on an inconsistency. 3 THE CLERK: Mr. William. 4 CHAIRWOMAN HERNANDEZ: That's wh 14 MR. WILLIAM: I guess, I for the 5 was trying to explain. Just the part one of 5 City more, because I vote yes. 6 Item Number 5. 6 THE CLERK: Miss Chair. 7 MS. SLAYZAK: You should be 7 CHAIRWOMAN HERNANDEZ: Yes. 8 considering a motion either to dismiss the 8 THE CLERK: Motion passes, eight to 9 first count or not to dismiss. 9 zero. 10 MALE VOICE: I move to dismiss the 10 CHAIRWOMAN HERNANDEZ: Okay. 11 first count. 11 Mr. Dickman, would you, please, address 12 CHAIRWOMAN HERNANDEZ. Is there a 12 point two. 13 second, please. 13 MR. DICKMAN: Let me also state that 14 ANOTHER MALE VOICE: I second. 14 in Article 18, which is, generally, the 15 CHAIRWOMAN HERNANDEZ: There's a 15 criteria that describes what can and cannot 16 motion and a second. 16 be appealed to this Board -- and I'm going '~ w c �' 17 Call the role, please. 17 to read verbatim. N U 18 THE CLERK: Mr. Garbela. 18 It says, "Appeals to the Board may be c 0 19 MR. GARBELA: Yes. 19 taken by any person aggrieved or by any ,o .� u H U 20 THE CLERK: Mr. Ganguzza. 20 officers, Board or agency of the City $ c 21 MR. GANGUZZA: I just want to 21 affected by," and this is paren 2, "any c ee 22 comment, in response to Mr. Dickman's 22 decision of the Director of the Department " N u 23 concern about being caught by surprise. You 23 of Planning, Building, Zoning, including, a . 24 know, I'm a lawyer, too, and I'd like to 24 but not limited to, decisions involving c p, 1 have notice of a motion like this. But in 25 Class 11 Special Permits." 5 (Pages 17 to 20) Esquire Deposition Services (305) 371-2713 6 (Pages 21 to 24) Esquire Deposition Services (305) 371-2713 Page 21 Page 23 1 Nowhere in here does it limit you to 1 decision; therefore, it wouldn't properly be 2 just what Class II Permits are required. 2 in front of this Board. 2 And let me clarify, as well, that, yes, 3 There are other remedies Mr. Dickman 4 while zoning -- your zoning code, your land 4 may pursue regarding the Comp. Plan pursuant 5 development regulations may have been deemed 5 to the statute, but the Zoning Board was not 6 compatible with your Comp. Plan, it still 6 the appropriate remedy. 7 does not automatically bless your 7 MS. SLAYZAK: If there had been, 8 development orders. Therefore, if your 8 let's say, an interpretation of the Comp. 9 development order is found to be contrary to 9 Plan, a written interpretation by the 10 your zoning, it could very well be contrary 10 Planning Director and that were to be 11 to your Comp. Plan. You don't -- 11 appealed, it would come to this body as an 12 CHAIRWOMAN HERNANDEZ: Did you g 12 appeal of the interpretation of the Comp. 13 back to one? 13 Plan. What's here before you is an appeal 14 MR. DICKMAN: No. I'm on two. I'm 14 of a Class II. It was filed as an appeal of 15 on two. I'm talking about your zoning code. 15 a Class II, not an appeal of a Comp. Plan 16 Your zoning code, your land development 16 interpretation of how something should or 17 regulations. 17 shouldn't apply to a piece of property. 18 And you are required, under the code, 18 You have to use the same criteria that 19 to follow your land development regulations. 19 the Director used in reviewing the Class II. 20 We have alleged that this project -- 20 CHAIRWOMAN HERNANDEZ: Would yoi 21 CHAIRWOMAN HERNANDEZ: When it's 21 continue with number two. 22 criteria that pertains to this Board. 22 MR. DICKMAN: The criteria includes 23 MR. DICKMAN: I'm pointing to -- 23 reviewing whether it's compatible with the 24 exactly to the code, Article 18, that says, 24 Comp. Plan. I believe even Section 1305 25 "any decision, including." It doesn't 25 says that. 6 (Pages 21 to 24) Esquire Deposition Services (305) 371-2713 Page 22 Page 24 >: 1 exclude any other decisions. 1 CHAIRWOMAN HERNANDEZ: Mr. Wysong, 2 So, we are bringing here, arguments 2 do you agree? 3 that start with the Comp. Plan and get down 3 I'm really not going to let this turn 4 to the zoning code. 4 into a legal thing. If that's the case, 5 MR. WYSONG: Madam Chair, could I 5 then let's have you, you know, address the 6 add that Section 1618.06 of Article 18 says, 6 attorney and he can rebut it and you can go 7 "Hearing Powers of Zoning Board. In 7 back and forth, because I don't think 8 exercising authority to review the decision 8 that -- 9 of the administrative official, the Zoning 9 MR. DICKMAN: I don't want to be 10 Board shall have all the powers of the 10 here all night either. 1 I officer from whom the appeal is taken and in 11 CHAIRWOMAN HERNANDEZ: Excuse me. 12 conformity with the provisions and in 12 I don't think our attorney, City's 13 this -- in the law of zoning, may reverse or 13 attorney or the Department is agreeing with 14 affirm, wholly or in part, or may modify the 14 what you're stipulating. 15 decision appealed from and may make such 15 MR. DICKMAN: That's okay. 16 decision as ought to be made." 16 CHAIRWOMAN HERNANDEZ: I'm not an 17 That dovetails with Miss Slayzak's 17 attorney and not head of the department. 18 comments, that you're sitting in judgment of 18 Neither is anybody here on the Board. I'm p• c N o 19 the decision of the Director of Planning, "any 19 sorry. City attorney. = � o •.. U 20 not any decision, although it says 20 MR. DICKMAN: I can offer a c c 21 decision," you are limited to the facts of 21 solution. 22 this particular case and the applicable 22 Personally, if we could have just put 23 laws. And here is something, for example, 23 on our case in chief, the developer could a 24 in the first count of the appeal, the Comp. 24 have made their motions, we could have heard Plan was never part of the Zoning Director's 25 all of these at one time. Instead, she has .o 6 (Pages 21 to 24) Esquire Deposition Services (305) 371-2713 Page 25 Page 27 1 forced you into hearing each one of these, 1 questions or motions? 2 one at a time, and she could have very 2 MALE VOICE: Motion to Dismiss point easily made these arguments in her rebuttal 3 two. 4 to our appeal. 4 MALE VOICE 2: 1 have a question. 5 CHAIRWOMAN HERNANDEZ: Let's stick 5 Is the Class II in this particular case -- 6 to part two of 907.3.2, please. 6 what does it encumber? What is it allowing 7 MR. DICKMAN: We allege that it's in 7 them to do? 8 violation of that, of your zoning code. 8 MS. SLAYZAK: The Class 11 Special 9 You're required to follow the zoning code. 9 Permit is for new construction of a 10 MS. DOUGHERTY: Not only one of the 10 multi -family with some mixed use development 11 criteria, it's untimely. That decision was 11 on Biscayne Boulevard. It is in the SD -9 12 made by the Zoning Administrator in this 12 Special Zoning District. That's why the 13 letter that's in your package in November of 13 Class II Special Permit is required, in 14 2003. And that was not appealed. And just 14 order to review it against the special 15 like Mr. Dickman said, you can appeal any 15 requirements of SD -9 and the design 16 decision by the Zoning Administrator, the 16 considerations built into SD -9. 17 Planning Department. He did not make that 17 MALE VOICE 2: All that was done? 18 appeal; therefore, it's untimely to -- not 18 MS. SLAYZAK: It complies with SD -9 19 only is it not part of the criteria, also 19 at the time that it was filed. SD -9 has 20 untimely. 20 since been modified, but at the time that it 21 CHAIRWOMAN HERNANDEZ: Okay. 21 was filed, it complies with SD -9. 22 Lourdes, would you, please, put anyone who 22 MALE VOICE 3: Is this on the east 23 is not familiar with 907.3.2 up to date on 23 side or west side of Biscayne Boulevard? 24 907.3.2. 24 MS. SLAYZAK: It's on the east side 25 MS. SLAYZAK: This is --I'm just 25 of Biscayne Boulevard. Page 26 Page 28 1 going to give you a quick idea. When a 1 MALE VOICE 3: This is taking into 2 Class Il Special Permit is filed with the 2 consideration the water, the ninety feet of 3 City of Miami, the very first step in the 3 bonuses? 4 Class II Special Permit is for the applicant 4 CHAIRWOMAN HERNANDEZ: Actually, no. 5 to take their development plans to the 5 This is not on the water and there's no 6 Zoning Division and Zoning does a review to 6 bonuses. 7 make sure that it otherwise complies with 7 MALE VOICE 3: No bonuses. 8 zoning and all of the other aspects, 8 CHAIRWOMAN HERNANDEZ: It's only a 9 setbacks, height, parking requirements, 9 Class 11. It's not a major use. 10 green space, etc. 10 MALE VOICE 3: There's no variances? 1 I And once Zoning has determined that it 11 CHAIRWOMAN HERNANDEZ: No variances. 12 meets all of the zoning requirements and all 12 MALE VOICE 3: Okay. Thank you. 13 that's left to do is the Class 11, where we 13 CHAIRWOMAN HERNANDEZ: Okay. 14 do the design review, then Zoning will sign 14 Mr. Garavaglia. 15 off and refer it for the Class 11 Special 15 MR. GARAVAGLIA: At the time when 16 Permit. 16 you had that application for Class 11 permit 17 In this case, the Zoning signature, 17 and when you make your consideration, is it .� 18 which interpreted compliance with the zoning 18 still compatible for two, their c 19 requirements was done, as Miss Dougherty 19 consideration, since you done June 11, 20039 Q„ 20 said, in 2003. That decision of Zoning was 20 MS. SLAYZAK: I believe one of the •° 21 not appealed. So, the Class II moved 21 two applications, five and six, are similar c 22 forward, and that is not one of the criteria 22 in that they are a block apart on Biscayne 23 for the Class II Special Permit. 23 Boulevard. One of the two does meet -- it 24 CHAIRWOMAN HERNANDEZ: Thank you 24 does meet the new height requirements of w . 5 Okay. Board members, do you have any 25 SD -9. The other one does not. But it's Q o 7 (Pages 25 to Goj Esquire Deposition Services (305) 371-2713 8 (Pages 29 to 32) Esquire Deposition Services (305) 371-2713 Page 29 Page 31 '. 1 irrelevant because at the time it was filed, 1 MR. WILLIAM: Yes. 2 it did comply with SD -9. 2 THE CLERK: Ms. Hernandez. MR. GARAVAGLIA: What is the 3 CHAIRWOMAN HERNANDEZ: Yes. 4 thoughts on limitation into this class, that 4 THE CLERK: Motion passes 5 Class H Special Permit? 5 unanimously to dismiss part two of the 6 MS. SLAYZAK: As long as it stays on 6 appeal. 7 appeal, the new requirements will not kick 7 CHAIRWOMAN HERNANDEZ: Okay.. c o 8 in. Once the appeal is settled, they have 8 Mr. Dickman. 3 N V 9 six months to get a building permit. If 9 Should I move on to part four? 10 they do not, then they have to comply with 10 MR. DICKMAN: Part four involves the, o •- U 11 the new SD -9. 11 alleged violation of the Special District c c 12 MR. GARAVAGLIA: Thank you. 12 overlay 9, which is the intent to allow 13 CHAIRWOMAN HERNANDEZ: Mr. Garbe al3 development but protect the adjacent 14 MR. GARBELA: Yes, I would move to 14 neighborhood. And we believe that not only a 15 dismiss point two and, preferably, point 15 is this in violation, but for the record, a 16 four, because Lourdes just said that it's 16 procedurally, I believe that this is just $ 17 not applicable to this -- what we're 17 not the way a Motion To Dismiss should be rn 6 18 deciding here. So I would move to dismiss 18 handled, just for the record. 19 point two and point four and concentrate on 19 CHAIRWOMAN HERNANDEZ: Thank yoll 20 point three. 20 Lourdes, could you please address point 21 MALE VOICE: Second. 21 four. I think it's the same thing, SD -9. 22 CHAIRWOMAN HERNANDEZ: Motion an 122 MS. SLAYZAK: Correct. 23 second. 23 The SD -9 was in the process of being 24 Call the role, please. 24 reviewed and modified when this application 25 MR. WYSONG: Madam Chair, before you 25 was being processed. It was ultimately Page 32 Page 30 1 dismiss Count four, since the motion 1 approved and it does impose some new height 2 includes Count four, I would ask, you 2 limits on development on Biscayne Boulevard 3 know -- as we said, the loose rules of 3 and some setback modifications, but this 4 evidence apply here; however, fundamentals 4 project was already in process and was 5 of due process should be afforded to 5 allowed to continue. 6 Mr. Dickman and he should be, at least, 6 Again, once the appeals are all done, 7 entitled to a response as to why count four 7 they have six months to get their building 8 should or should not be dismissed. 8 permit or they will have to redesign the 9 MR. GARBELA: I'm sorry, Mr. Wysong. 9 project. 10 1 forgot that point. So, motion to dismiss 10 CHAIRWOMAN HERNANDEZ: Thank you.. 11 point two. 11 Board members, any questions or 12 CHAIRWOMAN HERNANDEZ: Okay. 12 motions? 13 There's a motion and second. 13 MALE VOICE: Motion to dismiss. 14 Call the role, please. 14 CHAIRWOMAN HERNANDEZ: Okay. 15 THE CLERK: Mr. Garbela. 15 There's a motion to dismiss part four. Is 16 MR. GARBELA: Yes. 16 there a second? 17 THE CLERK: Mr. Urquiola. 17 MR. URQUIOLA: Second. 18 MR. LTRQUIOLA: Yeah. 18 CHAIRWOMAN HERNANDEZ: There's a 19 THE CLERK: Mr. Ganguzza. 19 motion and second by Mr. Urquiola. 20 MR. GANGUZZA: Yes. 20 Call the role, please. 21 THE CLERK: Mr. Pina. 21 THE CLERK: Mr. Garbela. 22 MR. PIMA: Yes. 22 MR. GARBELA: Yes. 23 THE CLERK: Mr. Shulman. 23 THE CLERK: Mr. Urquiola. 24 MR. SHULMAN: Yes. 24 MR. LTRQUIOLA: Yes. THE CLERK: Mr. William. 25 THE CLERK: Mr. Ganguzza. 8 (Pages 29 to 32) Esquire Deposition Services (305) 371-2713 9 (Pages 33 to 36) Esquire Deposition Services (305) 371-2713 Page 33 Page 35 1 MR. GANGUZZA: Yes. 1 you're not ready, Lucia can address it 2 THE CLERK: Mr. Garavaglia. 2 again. MR. GARAVAGLIA: Yes. 3 MS. SLAYZAK: Yeah. I think the 4 THE CLERK: Mr. Pina. 4 applicant goes next and then the City. 5 MR. PINA: Yes. 5 CHAIRWOMAN HERNANDEZ: Okay. 6 THE CLERK: Mr. Shulman. 6 MS. DOUGHERTY: Madam Chair, member 7 MR. SHULMAN: Yes. 7 of the Board, this is a very modest project. l.".. 8 THE CLERK: Mr. William. 8 It is on the east side of U.S. 1. It is 9 MR, WILLIAM: Yes. 9 currently where two motels are located. 10 THE CLERK: Miss Hernandez. 10 We have not asked for a major use 11 CHAIRWOMAN HERNANDEZ: Yes. 11 special permit, we have asked for no 12 THE CLERK: Motion passes 12 variances, we have asked for no bonuses. It 13 unanimously to dismiss part four of the 13 is a district which currently has two motels 14 appeal on Number 5. 14 on it, but the motels are no longer legal. X c o sem, 15 CHAIRWOMAN 14ERNANDEZ: Okay. P 15 So, if the motels go away, the only thing 3 N °" U 16 three. 16 left that can be put on this property is I o 17 MR. DICKMAN: Section 1305.2 is a 17 either residential or office, not even c y� � = •" U 18 design criteria recently amended by the City 18 retail. c c d 19 to put more standards in place for not only 19 And I say modest, because it used to a c r, 20 the administration, but as well as the 20 have an unlimited height. It no longer b ~ 21 Board, to make decisions on special permits, 21 does. But even in that context, the rw°', •� a 22 including Class II Special Permits. That 22 Planning Department, my client, the a 23 criteria is lengthy and it is detailed. It 23 architects, all strove to make this the most u 24 requires you to look at a lot of things, 24 compatible buildings. I'm actually doing 25 including the compatibility with the Comp. 25 both buildings at the same time because -- Page 34 Page 36 1 Plan. 1 both applications at the same time. 2 We believe that this project is, quite 2 And I just want to show you this. 5101 3 frankly, quite simply, too big, out of 3 Biscayne Boulevard. We originally started 4 scale, incompatible with the adjacent homes 4 out with eighty-five thousand square feet, 5 that are directly adjacent to that. Single 5 reduced to sixty thousand feet. We 6 family homes that, perhaps, at their 6 originally had eleven floors, we reduced it 7 tallest, are twenty feet. This property, 7 down to eight floors. Originally had 89 8 going from Biscayne back, is a very shallow 8 units, down to 63 units. Parking is what's 9 property. It may be a hundred ten feet 9 required. The height. We used to have 117 10 deep, at its most. They're going to be 10 feet, now down to 87 feet. So, on 5101, we 11 putting a large development on a very thin 11 actually have less height than is permitted 12 piece of property and it will negatively 12 in today's code. 13 impact the adjacent neighborhood of 13 CHAIRWOMAN HERNANDEZ: Lucia, be 14 Morningside. 14 with me one minute. 15 1305 deals with this squarely and 15 Would you please read item number -- 16 directly. It addresses compatibility and 16 since Lucia is referring to it, Item Number 17 scale, bulk and height and buffering. And I 17 6. 18 believe this project does not meet that 18 MALE VOICE: Number 5. 19 requirement and, therefore, we are appealing 19 CHAIRWOMAN HERNANDEZ: No. Item 20 it. 20 Number 6. 21 CHAIRWOMAN HERNANDEZ: Thank you 21 THE CLERK: Approximately 5225 22 Lourdes, would you care to address 22 Biscayne B oulevard. It is an appeal by 23 number three. 23 Andrew Dickman, Esquire on behalf of the 24 MS. SLAYZAK: Well -- 24 Morningside Civic Association, Inc. and Rod CHAIRWOMAN HERNANDEZ: Well, if 25 Alonso, Ron Stebbins, Scott Crawford and 9 (Pages 33 to 36) Esquire Deposition Services (305) 371-2713 Page 38 1 be voted on separately. 2 But, also, I imagine, since you 3 dismissed Counts one, two and four of this 4 appeal, you have to address those Counts 5 separately, if you want to, on the next 6 appeal. 7 CHAIRWOMAN HERNANDEZ: That's wha 8 Counsel is suggesting, which we all agree 9 with wholeheartedly. 10 MR. DICKMAN: Put that in the full 11 motion for that item? 12 CHAIRWOMAN HERNANDEZ: Yes, the 13 same. 14 MS. DOUGHERTY: The same discussion 15 for both items. 5225, we had, originally, 16 eighty thousand square feet. We reduced it 17 down to sixty-one. Eleven floors, we 18 reduced to eight and a half floors. Ninety 19 units down to sixty-seven units. The height 20 was, again, 117 feet. It is now 97 feet, 21 which is -- 97 feet, four inches, which is 22 two feet, four inches higher than the code 23 allows you today. 24 So, it was the City staff, it was the Urban Development Review Board, it was our Page 40 1 or occupancy proposed." 2 And now, here's what I want you to 3 focus on. "Where such potentially adverse 4 effects are found, consideration shall be 5 given to special remedial measures in 6 appropriate -- in particular circumstances t 7 of the case, including screening, buffering, 8 landscaping, control of manner of hours of 9 operation, alterations of the design and 10 construction of the buildings, relocation of 11 proposed open space or other such measures 12 as are required, to assure that the 13 potential adverse effects are eliminated or 14 minimized to the maximum extent reasonably 15 feasible." 16 Like I started out saying, we started 17 this application in November of '03. It is 18 now -- has been seven or eight months. We 19 have gotten major use special pen -nits in 20 less time. Consistently, with the UDRB, 21 with the planning staff, with the architect 22 and with our client, is reducing this 23 building to the extent that we believe it is 24 compatible, it is in scale, it is the right 25 and very modest project for this property. Esquire Deposition Services (305) 371-2713 10 (Pages 37 to 40) Page 37 Page 39 1 Elvis Cruz of the Class II Special Permit 1 architects, and it was our client, who 2 Application No. 03-0308, approved with 2 addressed the issue of whether or not this conditions by the Planning Director on July 3 was compatible and scaled, and they did that 4 21, 2004 for new construction. 4 in the context of this application. If you 5 CHAIRWOMAN HERNANDEZ: Thank you 5 look at -- 6 That way, it's already read into the 6 And I'm going to pass out -- I'm going 7 record. As you refer to it, Lucia, 7 to have Gloria pass out the standards that 8 everybody knows what we're talking about. 8 apply. 9 MR. DICKMAN: Madam Chair, if I 9 CHAIRWOMAN HERNANDEZ: Mr. Dickman, 10 could make a quick suggestion, and if 10 were you aware of these changes? 11 Counsel agrees. 11 Or are you saying that was made 12 If Counsel's going to make the same 12 initially, Lucia? 13 argument she made in the last item, we'll 13 MS. DOUGHERTY: I'm sure he's aware 14 agree that everything incorporated from that 14 of it. 15 hearing will go to this one. We'll say the 15 MR. DICKMAN: Yeah, we're aware of 16 same things, reargue the same things. 16 it. 17 CHAIRWOMAN HERNANDEZ: If we do 17 MS. DOUGHERTY: So, Gloria 18 that, how do we go about doing that? Do we 18 Velazquez, my partner, is passing out the 19 do it when the time comes? Can we do it 19 standards of 1305. And you'll see in the 20 now, so we have it fresh in our mind? 20 standards, it says you have to review for -- 21 MR. WYSONG: When the time comes, we 21 this is the planning staff and now you -- 22 should also say the comments from this 22 "review for appropriateness shall be given 23 matter will be revised and extended to the 23 to potentially adverse effects generally and 24 next matter and then you can say to the next 24 on adjacent and nearby properties of the 25 matter, and then you can vote. They have to 25 area, the neighborhood, the city or the use Page 38 1 be voted on separately. 2 But, also, I imagine, since you 3 dismissed Counts one, two and four of this 4 appeal, you have to address those Counts 5 separately, if you want to, on the next 6 appeal. 7 CHAIRWOMAN HERNANDEZ: That's wha 8 Counsel is suggesting, which we all agree 9 with wholeheartedly. 10 MR. DICKMAN: Put that in the full 11 motion for that item? 12 CHAIRWOMAN HERNANDEZ: Yes, the 13 same. 14 MS. DOUGHERTY: The same discussion 15 for both items. 5225, we had, originally, 16 eighty thousand square feet. We reduced it 17 down to sixty-one. Eleven floors, we 18 reduced to eight and a half floors. Ninety 19 units down to sixty-seven units. The height 20 was, again, 117 feet. It is now 97 feet, 21 which is -- 97 feet, four inches, which is 22 two feet, four inches higher than the code 23 allows you today. 24 So, it was the City staff, it was the Urban Development Review Board, it was our Page 40 1 or occupancy proposed." 2 And now, here's what I want you to 3 focus on. "Where such potentially adverse 4 effects are found, consideration shall be 5 given to special remedial measures in 6 appropriate -- in particular circumstances t 7 of the case, including screening, buffering, 8 landscaping, control of manner of hours of 9 operation, alterations of the design and 10 construction of the buildings, relocation of 11 proposed open space or other such measures 12 as are required, to assure that the 13 potential adverse effects are eliminated or 14 minimized to the maximum extent reasonably 15 feasible." 16 Like I started out saying, we started 17 this application in November of '03. It is 18 now -- has been seven or eight months. We 19 have gotten major use special pen -nits in 20 less time. Consistently, with the UDRB, 21 with the planning staff, with the architect 22 and with our client, is reducing this 23 building to the extent that we believe it is 24 compatible, it is in scale, it is the right 25 and very modest project for this property. Esquire Deposition Services (305) 371-2713 10 (Pages 37 to 40) 11 (Pages 41 to 44) Esquire Deposition Services (305) 371-2713 Page 41 Page 43 1 And I'd like Bernard Zyscovich, who is 1 CHAIRWOMAN HERNANDEZ: That's about 2 on your architect, to come forward and 2 to fall. I thought I was getting dizzy. describe the project for you. 3 MR. TALBOT: Here's our two blocks. 4 MR. TALBOT: Thank you. 4 And we have project number one at 60th 5 What Lucia just described to you, in 5 Street and 58th Street. These are both 6 terms of numbers, these are the effects of 6 buildings that are already, more or less, at 7 the buildings. This is what we initially 7 the same height as this one. As you drive 8 created for the proposal, related to the 8 down Biscayne Boulevard, you'll probably see 9 building, I think, at 117 feet. This one 9 them being renovated. I think one of them 10 was what was approved by the Urban Design 10 is having the skin replaced. 11 Review Board. You can see we kept pushing 11 And then we went into Morningside and 12 it down. And in the urban redesign, there 12 we actually took pictures, put the building 13 is another iteration where we brought it 13 in that has been designed, into a photo 14 down even more in order to work with the 14 montage, to help understand what the impact 15 best that we could with staff and the 15 is on each of the streets that are there. 16 Planning Department, to get the building to 16 These are done in good faith, with the best 17 its current situation. 17 of our abilities, to show you what the 18 So, you can see there's been a very 18 impact is within the neighborhood. 19 very significant drop in terms of the 19 And then, finally, these drawings show 20 building design, the building height, the 20 you the impact of what the building's 21 number of units. Approximately, twenty-five 21 appearance would be on Biscayne Boulevard. 22 percent of the base FAR -- forget the bonus, 22 And again, we think that they're very 23 forget all the extras that, most of the 23 compatible with the existing issues. 24 time, we go through with our client. Just 24 One of the things that has not been 25 the base FAR, as originally required as a 25 mentioned, because all of the focus has Page 42 Page 44 1 maximum in the code, has been reduced by 1 really been based upon the property owners 2 twenty-five percent. So the building is, 2 on the single family side, Biscayne 3 actually, seventy-five percent the size that 3 Boulevard, and all of the planning of the 4 it would be as a baseline. 4 City, is considered to be the major 5 When the code has finally arrived at 5 boulevard of the City, the right-of-way is a 6 its final conclusion, in terms of the 6 minimum of 100 feet wide. 7 height, we have one building at 87 feet, the 7 In every urban design component that ;� o o 8 other building is at 97 feet. The building 8 I'm aware of related to the major N E" U 9 code has a maximum height of 95 feet. 9 streetscape -- and I'm sure many of you have °• c N o 10 So, in terms of the compatibility, even 10 traveled and have seen the avenues and v F U 11 after all of the iterations that have been 11 boulevards of major cities, and 95 foot 0 b o . 12 going on through what is now almost a year, 12 height for hundred foot right-of-way is not •� c .� 13 this building, in very many respects, not 13 an imposing scale. We believe that the 14 all, is, essentially, the type of building 14 project is very much in scale. •� a .� 15 height and configuration that would be 15 1 think that there has been a lot of p'"., 16 allowable today, after all of the code work 16 movement in the City to remove unlimited 17 has been accomplished. 17 height, to constantly be pushing this down. �- 18 And as I said, a voluntary reduction in 18 We understand that the lots, themselves, are 19 the size and overall scale of the building. 19 quite narrow. But by the same token, there 20 We've also gone to the trouble of trying to 20 is an element of the boulevard that needs to 21 understand what's happening on Biscayne 21 have some impact and some presence, and it's 22 Boulevard and what are the issues of 22 our belief that this project is very much in 23 compatibility. We have some projects up 23 scale. 24 here in the northern edge. Here's Biscayne 24 So, to summarize, the street has been 3 Boulevard. 25 activated. We've taken the common areas of 11 (Pages 41 to 44) Esquire Deposition Services (305) 371-2713 Page 46 1 certain aspects in the SD -9, in the current 2 configuration, that this building does not 3 comply with. We exceed the setbacks. We're 4 right about at the same height. There are 5 certain issues regarding a new 45 degree 6 angle setback that we don't comply with. 7 And what else don't we comply with? 8 CHAIRWOMAN HERNANDEZ: Let me 9 interrupt you for a minute and ask our 10 attorney, in considering this, are we 11 supposed to be using SD -9 and 907.3.2 as it 12 was when this was approved, or as it is now? 13 I just want to have it reiterated, please. 14 MR. WYSONG: You have to look at it, 15 what was approved at the time. 16 CHAIRWOMAN 14ERNANDEZ: What was 17 place when it was approved, not what it is 18 now. 19 MR. WYSONG: Correct. 20 MR. PINA: And I understand that. 21 But for my own information. 22 MR. TALBOT: We're disclosing that 23 information. What I'm trying to say is, 24 even though, under the original application, 5 we could have created a much bigger Page 48 1 MR. TALBOT: It's on the side 2 streets. 3 MR. SHULMAN: You going to have 4 valet parking? 5 MR. TALBOT: I don't think so. 6 MS. DOUGHERTY: And both side 7 streets, in both cases, are closed. In 8 other words, they don't go into the 9 neighborhood. They're closed streets. I 10 forgot to tell you that. 11 MR. SHULMAN: And your parking -- 12 How many units, first of all? 13 MR. TALBOT: We have 63 on 5101 and 14 we have 67 on 5225. 15 MR. SHULMAN: So, which one's the d6 last model you have, between those three? 17 Which is the one you planning to -- 18 MR. TALBOT: The smallest. 19 MR. SHULMAN: The small one. 20 MR. TALBOT: In both cases. 21 MR. SHULMAN: And parking, you going 22 to have parking? 23 MR. TALBOT: Structured parking. 24 You come in on the side street, you go up 25 the ramp and then you have two floors of Esquire Deposition Services (305) 371-2713 oo Page 45 �00 Page 47 1 the building, because retail is not allowed, 1 building, we've been doing everything that 2 and we've taken and applied all of the good 2 we know how to do to bring it down, bring elements of urban design. You see 3 the scale down and even today, when you 4 activities at the street. You don't see 4 talked about the impact, most people are 5 parking at the street level. We brought the 5 talking about the height of the building. 6 size and bulk of the buildings down. 6 We're within a couple feet of 95 feet. In 7 And in many respects, it is not only 7 one case, below 95 feet. 8 compatible, but even almost in compliance 8 So, it's our belief this is a very 9 with all of the requirements that would be 9 compatible building and is the type of 10 applicable in the SD -9. 10 building that represents a lot of efforts on 11 With that, I conclude our comments. We I I everybody's part to try and make it as 12 have some additional boards, if you want me 12 acceptable as possible to the people who 13 to go into it. I don't think this is a 13 believe that it shouldn't be here at all. 14 design session, but we have that 14 MR. PINA: Three things. The 15 information, if you're interested. And 15 angle -- 16 thank you very much. 16 MR. TALBOT: The angle --it's the 17 CHAIRWOMAN HERNANDEZ: Thank you 17 angle, the setback -- no. The setbacks, we 18 MR. PIMA: I have a question. 1 18 exceed what is there now. Minor use is 19 have a question for him. 19 above, because it's impossible, with such a 20 You mentioned, your last sentence, that 20 narrow lot. And I think the podium height. 21 some of this is compatible with SD -9 21 Were a little higher on the podium. 22 MR. TALBOT: I didn't say 22 MR. SHULMAN: I have two questions, 23 compatible. I said compliant. 23 sir. 24 MR. PIMA: Compliant. 24 One is, what is your egress and 25 MR. TALBOT: Compliant. There's 25 ingress? Page 46 1 certain aspects in the SD -9, in the current 2 configuration, that this building does not 3 comply with. We exceed the setbacks. We're 4 right about at the same height. There are 5 certain issues regarding a new 45 degree 6 angle setback that we don't comply with. 7 And what else don't we comply with? 8 CHAIRWOMAN HERNANDEZ: Let me 9 interrupt you for a minute and ask our 10 attorney, in considering this, are we 11 supposed to be using SD -9 and 907.3.2 as it 12 was when this was approved, or as it is now? 13 I just want to have it reiterated, please. 14 MR. WYSONG: You have to look at it, 15 what was approved at the time. 16 CHAIRWOMAN 14ERNANDEZ: What was 17 place when it was approved, not what it is 18 now. 19 MR. WYSONG: Correct. 20 MR. PINA: And I understand that. 21 But for my own information. 22 MR. TALBOT: We're disclosing that 23 information. What I'm trying to say is, 24 even though, under the original application, 5 we could have created a much bigger Page 48 1 MR. TALBOT: It's on the side 2 streets. 3 MR. SHULMAN: You going to have 4 valet parking? 5 MR. TALBOT: I don't think so. 6 MS. DOUGHERTY: And both side 7 streets, in both cases, are closed. In 8 other words, they don't go into the 9 neighborhood. They're closed streets. I 10 forgot to tell you that. 11 MR. SHULMAN: And your parking -- 12 How many units, first of all? 13 MR. TALBOT: We have 63 on 5101 and 14 we have 67 on 5225. 15 MR. SHULMAN: So, which one's the d6 last model you have, between those three? 17 Which is the one you planning to -- 18 MR. TALBOT: The smallest. 19 MR. SHULMAN: The small one. 20 MR. TALBOT: In both cases. 21 MR. SHULMAN: And parking, you going 22 to have parking? 23 MR. TALBOT: Structured parking. 24 You come in on the side street, you go up 25 the ramp and then you have two floors of Esquire Deposition Services (305) 371-2713 oo c �00 C4 0 a0 N v 4.0 0 12 (Pages 45 to 48) 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 50 Page 49 Page 52 Page 51 1 parking and then you have floors of units. 1 CHAIRWOMAN HERNANDEZ: Thank yo 2 MR. SHULMAN: How many parking space 2 Is there anybody else who would like to 3 you be able -- 3 speak for or against this item? 4 MR. TALBOT: We have 83 where 4 Mr. Dickman, is there any, like, small 5 there's 67, and 89 where there's 63. 5 little comments you'd like to make? 6 MR. SHULMAN: You going to have 6 MR. DICKMAN: Yes. 7 (inaudible) in the first floor and the 7 In closing, I'd like to just put into 8 entertainment stuff. 8 the record Exhibit A and Exhibit B, which 9 MR. TALBOT: No, no. We're having 9 are things that Counsel's very well aware 10 common area, the gym, the lobby, you know, 10 of, the goals, objectives and policies of 11 whatever we're allowed to have that's part 11 the Comp. Plan, as well as the variety of 12 of the apartment building, because part of 12 letters we submitted on the appeal. Like to 13 Biscayne Boulevard isn't zoned for -- 13 put those into the record just for that. 14 MS. DOUGHERTY: You're not allowed 14 And once again, we'll close just by 15 to have any retail in this part. The only 15 saying we believe that all of the citations 16 thing you can of is residence and office. 16 that we referenced in our appeal, including 17 That's it. So we don't intend to have 17 and involving 13 05.2, 1 believe, require 18 offices. This is going to be common areas 18 you, under that code, as well as SD -9, to 19 for the condominium. 19 take into full consideration the existing 20 MR. TALBOT: For the residents are 20 residential neighborhoods, which are the 21 allowed -- we moved it down to the first 21 life blood of the upper east side. 22 floor. 22 If you don't have single family 23 CHAIRWOMAN HERNANDEZ: Okay. 23 residential, medium income houses, where 24 Lourdes, do you have any comments on part 24 people can live and raise their families and 25 three? Continuing saga. 25 you continue to allow large scale 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 50 Page 52 MS. SLAYZAK: I know. 1 speculative development to abut up against 1305, the Planning and Zoning 2 it, you are hacking away at the resource Department believes that the application is 3 that drives this community. Thank you. in complains with 1305. As the applicant 4 CHAIRWOMAN 14ERNANDEZ: Thank yo1 stated early on, this is Class II Special 5 MS. DOUGHERTY: Just for the record, Permit that took, approximately, eight 6 I have to object to the goals and policies months, which is seven months longer than 7 being submitted into evidence. I know he's most of them take. It went back and forth 8 just proffering it for the record. with the Internal Design Review Committee 9 CHAIRWOMAN HERNANDEZ: Thank yoi and DDRB, trying to find the kind of 10 We will now close the meeting to the conditions that could mitigate any potential 11 public and open it up to the Board for adverse affects. 12 motions, discussion. What was difficult with this one was 13 1 might just add that I think that it's SD -9 was in progress and we were not allowed 14 a wonderful idea if that -- any area in the to apply the new SD -9. Through our design 15 city could be kept for just residential and review comments, we gave a lot of very 16 medium income, but I can't see anybody being a similar comments, and the applicant 17 able to afford, with a medium income, to responded by modifying the project 18 build one house on any of these lots tremendously in order to bring it down. 19 anymore. Unfortunately or fortunately. So I believe that the Planning Director 20 Okay. Board members. minimized all of the potential adverse 21 MR. PIMA: Madam Chair. effects to the maximum extent possible, 22 CHAIRWOMAN HERNANDEZ: Yes. utilizing the conditions and safeguards that 23 Mr. Pina. were allotted to us through 1305 and the 24 MR. PIMA: Although we said the zoning ordinance. 25 character of our neighborhoods is what makes Esquire Deposition Services (3 05) 371-2713 13 (Pages 49 to 52) Page 53 1 our City, and I always had feeling that the 2 code had to be changed, there was some things in the code that needed to be 4 changed, but that's what we're working with. 5 The applicant has made a proper application 6 within the guidelines of the time. You 7 can't change the ballgame and say, it's not 8 three outs, it's now two outs in the middle 9 of the ballgame. 10 So I think they've done everything. 11 And in addition to that, the comments by 12 staff where they went ahead and said, look, 13 throughout the middle of this, we made some 14 adjustments with the capacity that we had at 15 the time, to modify this, to comply as much 16 as what's going to be in place, which is the 17 SD -9. So -- 18 CHAIRWOMAN HERNANDEZ: You going 19 make a motion. 20 MR. PINA: Unless my colleagues want 21 to. 22 I uphold the Director's decision. 23 CHAIRWOMAN HERNANDEZ: Well, mak 24 the motion, please. 25 MS. SLAYZAK: The motion would be, Page 54 1 2 3 4 5 6 7 8 9 10 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 deny the appeal and uphold the decision of the Director of Planning and Zoning. CHAIRWOMAN HERNANDEZ: Okay. There's a motion. Is there a second? MR. GARAVAGLIA: Second. CHAIRWOMAN HERNANDEZ: There's a motion and a second by Mr. Garavaglia. THE CLERK: This result, is this only part three? CHAIRWOMAN HERNANDEZ: Yes. it's only part three, but it finishes off the item. Okay. Go ahead. THE CLERK: It was seconded. MR. GARBELA: Are we voting on denying the whole thing right now? CHAIRWOMAN HERNANDEZ: Yes. number three, but that's the only one left. MR. GARBELA: About to deny or grans the appeal? MS. SLAYZAK: You dismissed three of the four grounds for appeal and you're voting on the appeal of the one remaining ground. THE CLERK: Mr. Pina. MR. PINA: Yes. 1 THE CLERK: Mr. Garbela. 2 MR. GARBELA: Yes. 3 THE CLERK: Mr. Flowers. Let the 4 record reflect -- oh, he left again. 5 Okay. Mr. Ganguzza. 6 MR. GANGUZZA: Yes. 7 THE CLERK: Mr. Garavaglia. 8 MR. GARAVAGLIA: Yes. 9 THE CLERK: Mr. Shulman. 10 MR. SHULMAN: Yes. 11 I'd like to also say I agree with the 12 general concept that there are compatibility 13 issues globally in the City. I think there 14 are problems. I think the zoning is 15 changing, and I think that's beginning to 16 bring these projects more into context. But 17 this project clearly went through a process, tb8 benefited from that process, scaled down. 19 All that as part of the process. And so -- 20 And I really do feel that, as a user of 21 Biscayne Boulevard, this is also a good 22 project for Biscayne Boulevard. 23 So, yes. 24 THE CLERK: Mr. Urquiola. 25 MR. URQUIOLA: Yes. 2 3 4 5 6 7 8 9 Weill 10 This 11 12 13 14 15 id 6 17 18 19 20 21 22 23 24 25 Page 55 Page 56 THE CLERK: Mr. William. MR. WILLIAM: Yes. THE CLERK: Miss Chair. CHAIRWOMAN HERNANDEZ: Yes. THE CLERK: Motion passes unanimously. CHAIRWOMAN HERNANDEZ: Mr. Pina, would you like to make the motion on the following item, as we had discussed? MR. PINA: To deny the appeal and uphold the Director's decision. CHAIRWOMAN HERNANDEZ: Which already been voted on the record. MS. SLAYZAK: Let me just ask the Assistant City Attorney, do they have to vote on dismissing one, two and four again? MR. WYSONG: I think the applicant should make that motion and incoip orate the arguments from Item 5 into Item 6. Otherwise, it would be the entire appeal that you'd be voting on. MS. DOUGHERTY: I do that. I request that you dismiss grounds one, two and four and incorporate all of our discussion from the last -- from Item Number Esquire Deposition Services (305) 371-2713 14 (Pages 53 to 56) Page 58 1 THE CLERK: Two and four. 2 MS. SLAYZAK: Right. And deny the 3 appeal as a whole. 4 THE CLERK: It was moved by Mr.? 5 CHAIRWOMAN HERNANDEZ: Pina, 6 seconded by Mr. Garbela. 7 THE CLERK: Thank you. 8 Mr. Pina. 9 MR. PINA: Yes. 10 THE CLERK: Mr. Garbela. 11 MR. GARBELA: Yes. 12 THE CLERK: Mr. Ganguzza. 13 MR. GANGUZZA: Yes. 14 THE CLERK: Mr. Garavaglia. 15 MR. GARAVAGLIA: Yes. 16 THE CLERK: Mr. Shulman. 17 MR. SHULMAN: Yes. 18 THE CLERK: Mr. Urquiola. 19 MR. URQUIOLA: Yes. 20 THE CLERK: Mr. William. 21 MR. WILLIAM: Yes. 22 THE CLERK: Miss Hernandez. 23 CHAIRWOMAN HERNANDEZ: Yes. 24 THE CLERK: Motion passes 3 unanimously. I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 59 CHAIRWOMAN HERNANDEZ: Okay. Thanks very much. Thank you. (Whereupon, the hearing as to Item Nos. 5 and 6 was concluded.) CERTIFICATE I HEREBY CERTIFY that the foregoing, pages 1 to and including 59, is a true and correct transcription of my stenographic notes, to the best of my ability and hearing, of a videotape transcription of the Miami Zoning Board Hearing, at the City Hall, Miami, Miami -Dade County, Florida, on the 4th day of October, 2005, commencing at 6:00 o'clock P.M. Not all speakers were able to be identified via the videotape. IN WITNESS WHEREOF I have hereunto affixed my hand this 1 st day of November, 2005. Kathleen Schwab Notary Public - State of Florida Commission No.: DD456716 Commission Expires: 08/01/2009 Esquire Deposition Services (305) 371-2713 Page 60 15 (Pages 57 to 60) Page 57 1 5 into Item Number 6. 1 2 CHAIRWOMAN HERNANDEZ: One, two, 2 3 three and four. 3 4 MS. DOUGHERTY: No. We're not 4 5 asking for you -- I'm only asking for the 5 6 dismissal of one, two and four and then I 6 7 would ask you to approve -- deny the appeal 7 8 ultimately. 8 9 CHAIRWOMAN HERNANDEZ: Okay. 9 10 MR. DICKMAN: Can I just -- for the 10 11 record, we'll incorporate all of our 11 12 arguments on those three dismissals and 12 13 also, arguments on the final -- 13 14 CHAIRWOMAN HERNANDEZ: Decision. 14 15 MR. DICKMAN: -- denial. 15 16 How did I do with that? 16 17 CHAIRWOMAN HERNANDEZ: That sour l7 18 good. 18 19 Okay. There's a motion. A second? 19 20 MR. GARBELA: Second. 20 21 CHAIRWOMAN HERNANDEZ: Motion, an d2l 22 second by Mr. Garbela. 22 23 THE CLERK: Okay. This motion -- 23 24 MS. SLAYZAK: Is to dismiss 24 25 grounds -- 25 Page 58 1 THE CLERK: Two and four. 2 MS. SLAYZAK: Right. And deny the 3 appeal as a whole. 4 THE CLERK: It was moved by Mr.? 5 CHAIRWOMAN HERNANDEZ: Pina, 6 seconded by Mr. Garbela. 7 THE CLERK: Thank you. 8 Mr. Pina. 9 MR. PINA: Yes. 10 THE CLERK: Mr. Garbela. 11 MR. GARBELA: Yes. 12 THE CLERK: Mr. Ganguzza. 13 MR. GANGUZZA: Yes. 14 THE CLERK: Mr. Garavaglia. 15 MR. GARAVAGLIA: Yes. 16 THE CLERK: Mr. Shulman. 17 MR. SHULMAN: Yes. 18 THE CLERK: Mr. Urquiola. 19 MR. URQUIOLA: Yes. 20 THE CLERK: Mr. William. 21 MR. WILLIAM: Yes. 22 THE CLERK: Miss Hernandez. 23 CHAIRWOMAN HERNANDEZ: Yes. 24 THE CLERK: Motion passes 3 unanimously. I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 59 CHAIRWOMAN HERNANDEZ: Okay. Thanks very much. Thank you. (Whereupon, the hearing as to Item Nos. 5 and 6 was concluded.) CERTIFICATE I HEREBY CERTIFY that the foregoing, pages 1 to and including 59, is a true and correct transcription of my stenographic notes, to the best of my ability and hearing, of a videotape transcription of the Miami Zoning Board Hearing, at the City Hall, Miami, Miami -Dade County, Florida, on the 4th day of October, 2005, commencing at 6:00 o'clock P.M. Not all speakers were able to be identified via the videotape. IN WITNESS WHEREOF I have hereunto affixed my hand this 1 st day of November, 2005. Kathleen Schwab Notary Public - State of Florida Commission No.: DD456716 Commission Expires: 08/01/2009 Esquire Deposition Services (305) 371-2713 Page 60 15 (Pages 57 to 60) EXHIBIT "C" Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Miami City Commission Resolution: A RESOLUTION OF THE MIAMI CITY COMMISSION DENYING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING THE CLASS H SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. WHEREAS, on November 20, 2003, the Zoning Plans Examiner signed and acknowledged the Project was in "compliance with all applicable zoning regulations"; and WHEREAS, the Project's Application was completed on November 24, 2003; and WHEREAS, on March 17, 2004, the City's Urban Development Review Board issued its resolution recommending approval with conditions of a Class 11 Special Permit for the Project; and WHEREAS, on July 21, 2004, the Planning and Zoning Department issued its Final Decision GRANTING the Class II Special Permit for the Project; and WHEREAS, on October 4, 2005, the Miami Zoning Board unanimously DENIED Appellants' appeal of the July 21, 2004 decision to grant the Class H Special Permit (Zoning Board Resolution No. ZB 2004-0928); and WHEREAS, Appellants thereafter appealed that decision to the City Commission which, on September 22, 2005, voted to grant the appeal and withdraw the Class H Special Permit for the Project; and WHEREAS, the Class H Special Permit applicant filed a petition for certiorari seeking review of the City Commission's decision to the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit, which Court, on July 14, 2006, granted the petition, reversed the decision of the City Commission and remanded for further proceedings in accordance with its opinion; and Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk WHEREAS, Appellants thereafter filed a petition for certiorari seeking review of that decision to the Third District Court of Appeal, which petition was denied on December 1, 2006; and WHEREAS, in accordance with the judicial decisions, the City Commission has made its findings in support of its decision to uphold the Planning and Zoning Department's Final Decision to grant the Class H Permit. NOW, THEREFORE, BE IT RESOLVED BY THE MIAMI CITY COMMISSION: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this S ection. Section 2. Based on the facts and arguments presented to the Miami Zoning Board on October 4, 2005, the Miami Zoning Board found that: a.. In accordance with the determination of the Zoning Plans Examiner, the Project is in compliance with all applicable zoning regulations. b. The Planning and Zoning Department duly considered the comments and recommendations of the Zoning Division, Planning and Zoning Department; the Upper Eastside NET Office, Neighborhood Enhancement Team; and the Urban Development Review Board, which were reflected in its decision to approve the Class H Special Permit with conditions. C. The Planning and Zoning Department found, and this Commission finds, that the following findings were supported by the Record: (I) The Project is a mixed-use building consisting of residential units (89) and common areas (4,799 sq. ft.) with parking garage. (ii) The Project was reviewed by the Internal Design Review Committee which, after the applicant voluntarily revised its plans as suggested by that Committee's five reviews, approved the Project with conditions. (iii) The landscape plan submitted for the Project complies with the Miami -Dade Landscape Ordinance. (iv) The Urban Development Review Board reviewed and approved the Project with conditions. Submitted into the public record in connection with item PZ -11 on 02-28-08 Priscilla A. Thompson City Clerk (v) With regard to the criteria set forth in Section 1305 of the City of Miami Zoning Ordinance, the Project was reviewed and found sufficient subject to the conditions included in the Final Decision of the Planning and Zoning Department. d. At hearing before this Board, the Planning and Zoning Department confirmed that the application is in compliance with Section 1305 of the City of Miami Zoning Ordinance, and that potential adverse effects of the Project were mitigated by the applicant's voluntary revisions to the plans as had been suggested by the Internal Design Review Committee's five reviews over an eight month period. e. This Board was also provided with testimony by Bernard Zyscovich', the Project's architect, that the Project complies with the applicable requirements for SD -9 Districts, Section 609 of the Zoning Ordinance, and is comparable to the scale and height of other developments in the immediate area. (ZB Hearing Transcript at 42:15-24, 45:7-10; 41:18-21; 43:19-23). f. As the proposed project is no more than 8 stories or 87 feet high and contains 63 units, it falls within the height limitations that apply in the SD -9 District, Section 609, as of the date that the application was deemed complete. g. The project is in compliance with Ordinance No. 12350, even though that ordinance contains new height restrictions which did not take effect until April 29, 2004, after the applicant's complete application was submitted and is, therefore inapplicable to the Project. (ZB Hearing Transcript 31:22-32:5). h. Ordinance No. 12594, which further modified SD- 9 requirements and contained height restrictions for garages and rear setbacks, did not take effect until October 26, 2004, after the applicant's complete application was submitted and after the Board's hearing and is, therefore inapplicable to the proposed project. (See Circuit Court Appellate Division Decision dated July 14, 2006). I. Although Appellants had full opportunity to offer testimony and/or other evidence in support of their appeal, they failed to present competent substantial evidence to indicate that the scale and compatibility of the Project does not comply with any of the criteria in Sections 1305 and 609 of Ordinance No. 11000, or any other applicable ordinance provisions. Appellants also failed to offer any competent substantial evidence to show that the Project is adverse to the public interest. The transcription of the Zoning Board Hearing erroneously refers to Mr. Zyscovich as Mr. Talbot. Review of the video of the hearing confirms that this testimony came from Mr. Zyscovich. Section 3. Based on the foregoing findings and determinations, the Miami City Commission finds that the Miami Zoning Board had substantial competent evidence to support its denial of the appeal and affirmance of the granting of the Class E Permit, and the Final Decision of the Planning and Zoning Department to GRANT the Class E Special Permit is hereby AFFIRMED. Miami City Commission Submitted into the public record in connection with itemPT_ on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TANEN & T$ENCH, P.A. Law Offices One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Writer's e-mail: strench agttpa.com Facsimile (3 05) 374 — 7632 February. 27, 2008 HAND DELIVERED Commissioner Michelle Spence -Jones Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS II SPECIAL PERMIT APPLICATION 1140. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Spence -Jones: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101 "). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class H Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3`d DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step ' In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Spence -Jones February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5 10 1, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442, 444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232,236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4`h DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4`h DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3`d DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this puncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3`d DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZA I on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 6 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3rd DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Commissioner Spence -Jones February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing —particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5"' DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. I" DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4`h DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 Fla.L.Weekly Supp. 344a (Fla. 11`h Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3rd DCA 1999). The above-cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, G Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. MA5101 BiscayneU etters\L-Commissioner Spence-Jonesmpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TA -NEN & TRENCH, P.A. Law Offices One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 305 Writer's e-mail: strench(c�gttpa.com Facsimile( ) 374 — 7632 February 27, 2008 HAND DELIVERED Commissioner Marc Sarnoff Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS 11 SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Sarnoff: This office represents the applicant for the Class H Special Permit referenced above (hereinafter referred to as "5101 "). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class 11 Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 2 History 5101 was granted a Class It Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3 DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 3 Submitted into the public record in connection with item PZ -11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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, byreversing the Zoning Board's issuance of the Special Permit, the City Commission failed to follow the essential requirements of the law. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step ' In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Samoff February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5101, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442,444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232, 236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4th DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the courtnoting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4th DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this juncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3rd DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 15 5 (Fla. Yd DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to ►ubmitted into the public •ecord in connection with tem PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing — particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5`h DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. 151 DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4`'' DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 F1a.L. Weekly Supp. 344a (Fla. 11`h Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3`d DCA 1999). The above-cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. MA5101 BiscayneTettersT-Commissioner Samoff .wpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TAKEN & TBENCH, P.A. Law Offices One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Writer's e-mail: strenchQ_)gttpa.com Facsimile (305) 374 — 7632 February 27, 2008 HAND DELIVERED Commissioner Joe M. Sanchez Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS 11SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Sanchez: This office represents the applicant for the Class H Special Permit referenced above (hereinafter referred to as "5101"). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Momingside's appeal of the Zoning Board's decision approving 5101's Class H Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step ` In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Sanchez February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5 10 1, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442, 444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232, 236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4`h DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the courtnoting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4th DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this juncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3rd DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3`d DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 151 DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing — particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5`h DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial. judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. 1" DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4`h DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 F1a.L. Weekly Supp. 344a (Fla. 11" Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d l l5 (Fla. 3`d DCA 1999). The above-cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. MA5101 Biscayne\Letters\L-Commissioner Sanchez.wpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TANEN & TRENCH, P.A. Law Offices Writer's e-mail: strench(wgttpa.com February 27, 2008 HAND DELIVERED Commissioner Tomas P. Regalado Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS H SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Regalado: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101 "). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 510l's Class H Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Commissioner Regalado February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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, byreversing the Zoning Board's issuance of the Special Permit, the City Commission failed to follow the essential requirements of the law. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit `B" hereto), Petitioner agreed this step ' In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Regalado February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Momingside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5 10 1, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442,444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232,236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4`h DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4"' DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this J uncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d589 (Fla. 3rd DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ -11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3`d DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. Pt DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing — particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5th DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZJ I on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. I" DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4``' DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 Fla.L. Weekly Supp. 344a (Fla. 11 `h Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3`d DCA 1999). The above-cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZA I on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. MA5101 Biscayne\Letters\L-Commissioner Relegadompd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk