HomeMy WebLinkAboutSubmittal-Memo-Rafael Suarez-RivasSUBMITTED INTO THE
�ITYAT o� yIsoFFI�UBLIC RECORD FOR
MEMORANDUM ITEWL:11 ON alasjoB
TO: Jorge L. Fernandez, City Attorney
FROM Rafael Suarez -Rivas , Assistant City Attorney
DATE: January 23, 2007
RE: 5101 Biscayne Blvd. Class II Special Permit, Dougherty v. City of Miami
Case 05-2205.
The purpose of this memo is to address the issues that will be of relevance to the City
Commission reviewing the Class II Special Permit issued for 5101 Biscayne Blvd.
QUESTIONS
First Question. What version of §1305 is to be considered by the Zoning Board and the City
Commission in reviewing the permit issued for 5101 Biscayne Blvd Project?
Second Question. Under what standard of review should the City Commission review the issuance
of the Class II Permit issued for 5101 Biscayne Blvd Project?
DISCUSSION
First Question.
On November 20, 2003, Lucia Dougherty (on behalf of Lawrence Eisenberg, contract vendee also
referred to the Developer), filed a Completed application for a Class II Special Permit with the City of
Miami Zoning department for a project at 5101 Biscayne Blvd. The Class II Special Permit was
approved on July 21, 2004 subject to conditions. On August 23, 2004 a revised application was
resubmitted and on December 13, 2004 that application was approved. This decision was appealed by
Morningside Civic Association and subsequently the permit was denied by the City Commission on
September 23, 2005.
The Developer filed an Appeal of this denial to the Circuit Court Appellate Division as is
provided by § 2005 of the Zoning Ordinance. The Circuit Court Appellate Division ultimately decided
on July 14, 2006 that the City Commission decision had to be quashed and a new hearing held because
the City Commission based its ruling on a general statement instead of complying with the requirement
of §1305 the City Commission to "written findings which specifically set forth the consideration and
standards that are supported by substantial competent evidence". These findings and conclusions may
only be based on the record before the Zoning Board. The end result of this is that a new hearing must
be held before the City of Miami Zoning Board and City Commission. This hearing must be conducted
in accordance with this Circuit Court decision, a copy of which is attached, for your information and
records.
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On December 18, 2003, Article 13, Section 1305 of the Zoning Ordinance of the City of Miami
was amended, requiring City Commission to make written findings with regard to seven different
"design criteria". According to the City of Miami Zoning Ordinance Article 21, Section 2105.4.1, this
amendment is not applicable to completed application. Section 2105.4.1 provides that:
[a]ny property owner or lawful representative, who, prior to the effective r e
date of any legislation repealing or modifying regulations which allow the a
requested activity, has properly filed a complete application for a development o , E
permit(s) with the appropriate City department, is authorized to proceed with O L i
such application(s) regardless of the subsequent repeal of regulations relevant a ae F—
to such requested aclivily, unless the contrary is specifically decreed. . . . e d .
Applicants for said development permits shall be allowed to make changes in
their application(s) only when so required by the City as a result of its review a 73
of the application(s).E IL
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Therefore, since the application was completed on November 20, 2003, prior to the effective date of
the amendment to Section 1305, the pre -2004 version of §1305 applies to the review of the Class II
Special Permit for 5101 Biscayne Blvd. The subsequent revision of the application on August 23, 2004
was as a result of the conditions required by the Planning and Zoning Department when they issued a
recommendation for approval of the Class II Special Permit on July 21, 2004. Therefore, as provided
in §2105.4.1 this amendment was proper and did not trigger the application of the amended version of
Section 13051. The application of pre -2004 version § 1305 would be in accordance with the decision of
Morningside Civic Association v. City of Miami Commission, 917 So. 2d 293 (Fla. 2005).
We have advised hearing boards to remand this matter to the Zoning Board to conduct a hearing which
follows the Dougherty court rulings. Please note that Sec 1305 introductory part provides:
[tjhe City agent, board, or commission that is charged with decisions
concerning each of the special permits shall review the proposal before them
and shall make, or cause to be made, written findings and determinations in
accordance with the established applicable criteria set forth in this zoning
ordinance and the City Code.
This section applies to this application since it has been in the Zoning Ordinance prior to this
application being filed. Under the plain meaning of this section the Zoning Board must make the initial
findings upon which the City Commission will hear any appeal. Moreover, in the similar case of
Morningside Developers, LLC, the City Commission remanded a special permit hearing to the Zoning
Board to make such findings; therefore in order to be consistent the Class II Special permit for 5101
Biscayne should be remanded to the Zoning Board.
' 2105.4.1 provides that an Applicant making changes to his Application when required by the Ci tyof Miami shall not be
deemed to have amended his application so as to make it subject to later enacted amendments .
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Second Question
On October 18, 2005, in Morningside Development v. City of Miami, 11th Circuit Court for
Miami -Dade County, found that the City Commission under the Zoning Ordinance present at the time,
can only review Zoning Board appeals under traditional appellate review and not by conducting a de
novo hearing. Therefore, in accordance with this opinion the City Commission may only review
material presented to the Zoning Board and cannot conduct a de novo hearing.
The subsequent amendment to Article 20, Section 2004 that provides for de novo review is not
applicable to this proceeding because it became effective on February 23, 2006 and in accordance to
Article 21, Sec. 2105.4 of the Miami City Zoning Ordinance, any amendment to the Zoning Ordinance
shall not be applicable to competed applications.
However, the City can maintain that the amendment to Article 20 hearings is procedural in
nature and operates prospectively and retroactively. The Florida Supreme Court in State Farm Mutual
Auto. Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), found "... a procedural or remedial statute is to
operate retrospectively .... [however] this Court has refused to apply a statute retroactively if the
statute impairs vested rights, creates new obligations, or imposes new penalties". Moreover, in Village
of El Portal v. City of Miami Shores, 362 So. 2d 275, 278 (Fla. 1978) the Court found that "Remedial
or procedural statutes ... may be held immediately applicable to pending cases.". In accordance with
these decisions, the City of Miami can maintain that the amendment to Article 20 does not impair
vested rights, or creates new obligations but it is only procedural in nature and thus applicable to the
present matter. This is not the most conservative position because this point was addressed in the
Dougherty decision where the court held the City Commission is limited to an appellate review. The
amendment to Article 20 had not been adopted at the time of this appeal.
CONCLUSION
1. The Class II Special Permit for 5101 Biscayne Blvd. has to be reviewed under pre -2004 version
of Article 13, Sec. 1305 of the Miami City Zoning Ordinance.
2. The City Commission must review the Class II Special Permit for 5101 Biscayne Blvd. under
traditional appellate review, and may only consider the materials presented to the Zoning
department.
Enclosure:
Timeline of Events pertinent to the Class II Special Permit for 5101 Biscayne Blvd.
Lucia Dougherty v. City Miami, 11th Circuit Court for Miami -Dade. (July 14, 2006)
Cc
Maria J. Chiaro, Assistant City Attorney
Prepared by:
Ana Maria D'Escoubet, Legal Intern
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5101 Biscayne Timeline
November 20, 2003- 5101 Biscayne completed application referred to Zoning
December 18, 2003- Amendment to § 1305 adopted
April 29, 2004- Amendment to SD -9 Adopted
July 21, 2004 -Class II Permit approved by zoning subject to conditions
July 22, 2004- 2❑d Amendment to SD -9 (first Reading)
August 23, 2004 Application resubmitted in compliance with 1St amendment of SD -9
Sept 27, 2004- 2nd Amendment to SD -9 Adopted
Oct 27, 2004- Class II Permit approved by Planning
December 13, 2004- Zoning Board affirmed Class II permit, and Morningside Civic Association
Appeals
September 23, 2005- City Commission convened a hearing, new evidence is introduced, Class II
permit denied.
October 18, 2005 Morningside Development v. City of Miami- Commission must make written
findings concerning special permits. City Zoning Ordinance does not provide for de novo review by
the Commission.
December 21, 2005 Morningside Civic Association v. City of Miami- An application made final after
the effective date of an amendment to the City Ordinance, must comply with it.
February 23, 2006- Amendment to Article 20, Section 2006 is adopted allowing the City Commission
to hear appeals de novo
July 14, 2006 Dougherty v. City of Miami, decision -Commission cannot review de novo.
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