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HomeMy WebLinkAboutSubmittal-Compliance with MUSPANDREW W.J. DICKMAN Attorney at Law Law Offices of ANDREW DICKMAN, P.A. 9111 Park Dr ■ Miami Shores, FL 33138 October 28, 2004 Honorable Jeffery Allen Honorable Angel Gonzalez Honorable Joe M. Sanchez Honorable Tomas P. Regalado Honorable Johnny L. Winton CITY OF MIAMI COMMISSION 3500 Pan American Drive Miami, Florida 33133 RE: Onyx 2 MUSP. Tel: 305.758.3621 Fax: 305.758.0508 andewdickman@belisouth.net VIA HAND DELIVERY Dear Commissioners: This firm represents David Auerbach and Betty Hyman, husband and wife, who own property and reside at 456 NE 29 Street, directly abutting the Onyx project. (Exhibit A). As designed, we are opposed to this MUSP for the following reasons: Compliance with MUSP (Article 17) Section-1702.2 of the Miami Zoning Code dictates, in part, that "In order to properly address any impacts created by the proposed developments, additional data may be required by the city, through its boards, officers, agents, or the city commission, upon showing of need for proper decision making purposes". Additionally, Section 1702.2.1 of the Code requires that a report be submitted, with specific exhibits, including section 1702.2.1(4) Materials to demonstrate the relationship of the elements listed in 1702.2.1(3), proceeding, to the surrounding area characteristics. Section 1703 of the Miami Zoning Code sets forth certain standards for the City Commission to consider, when evaluating a MUSP application. Such standards include: whether the development will have, a favorable impact on the environment and naturk EIYIKTOTHEE PUBLIC RECORD FOR t,.AITEM 1'Z 7 ON/D -R8-0 Miami City Commission October 28, 2004 Page 2 city, and whether the development will adversely affect living conditions in the neighborhood. [See Sections 1703(5) and (6) ] . The architectural drawings and exhibits submitted by the applicant fail to address the above noted requirements and standards. In this regard additional material, in the form of detailed context drawings or detailed computer photo -images of the proposed project within the as -built surroundings are needed in order to determine compliance with these requirements and standards. The submitted drawings do not provide adequate detail. Notwithstanding the lack of adequate documentation and materials, it is clear that the project, as submitted, fails to adequately address the above noted requirements and standards. In this regard, the proposed development will not have a favorable impact on the environment, and it will adversely affect living conditions in the neighborhood, as the overall size, density, scale and building location will overwhelm the low -medium scale residential area surrounding the subject site. Compliance with Design Review Criteria (Article 13) In accordance with Article 13 of the Miami Zoning Code, the subject project is required to be consistent with the Design Review Criteria in Section 1305.2. The following is a list of applicable criteria that has not been satisfied: I. Site and Urban Planning: (1) Respond to the physical contextual environment taking into consideration urban form and natural features. The orientation of the tower portion of the project broadside and overwhelm adjacent residential street and the established vistas and quality of life of neighboring buildings and homes. (2) Siting should minimize the impact of automobile parking and driveways on the pedestrian environment and adjacent properties. The overall density of the project and associated parking has resulted in an oversized parking pedestal. Rather than "minimizing" the impact of automobile parking on the pedestrian environment and adjacent properties/homes, this large pedestal actually "maximizes" the impact with an 8-story/90' Submitted Into the public record in connection with item PZ-7 on so-ee-o¢ Priscilla A. Thompson City Clerk Miami City Commission October 28, 2004 Page 3 parking structure spanning nearly 66% of the property. II. Architecture and Landscape Architecture: (2) Respond to the neighborhood context Although the neighborhood context is becoming increasingly high density residential, all of the abutting properties are much lower scale structures. (Exhibit "B"). Additionally, the size, scale and massing of the proposed parking pedestal and the building is much larger than any existing high-rise in the area. The applicant has not addressed this existing context in any meaningful way. (3) Create a transition in bulk and scale. No transition in bulk or scale has been provided as the subject structure fails to provide any type of stepped massing that allows for a better transition from grade to the highest floor. On the north wall, adjacent to my client's property, the proposed structure goes from grade level to 49 stories/543 feet within the same building plane. (Exhibit "C"). (5) Articulate the building facade vertically and horizontally in intervals that conform to the existing structures in the vicinity. Nothing in the vicinity comes close to this project in terms of size, height, scale and massing. VII. Signage and Lighting: (3) Orient outside lighting to minimize glare to adjacent properties. An exterior lighting plan has not been provided. City Staff's Analysis The project has been referred to the Large Scale Development Committee (LSDC), the Urban Development Review Board (UDRB) and the Planning & Zoning Department Internal Design Review Committee in order to determine the appropriateness of the project. Ostensibly, the review of these Boards and Committees is pursuant to the criteria and standards in Section 1305.2 and Section 1703. Several important analyses and recommendations can be found in the backup documentations contained in Subthhe.hatt5Afiipublic.. record in connection with item Pz-1 one Priscilla A. Thompson City Clerk Miami City Commission October 28, 2004 Page 4 recommendation. 1. Design Review Committee, March 23, 2004: "Because the proposal has a large amount of gross lot area, including benefiting from additional gross lot area because of its adjacency to Biscayne Bay, and the proposal is requesting the maximum amount of FAR on the site, including a 20% increase for a PUD bonus, and a 25% increase for the affordable housing bonus, and the project proposes transferring all of the F.A.R. from the southern parcel onto the northern parcel, the cumulative effect of these conditions creates a building which is OUT OF SCALE [emphasis added] within the context of the neighborhood and the small street on which it is situated." "Although other large scale development is occurring within the Edgewater district, the proposed 50-story height is inappropriate directly adjacent to the small scale residential development on this block. Most of the taller proposals in this area have larger sites to place the building footprint on, while proposals which are only one lot deep, such as this case, tend not to exceed 20 stories in height. In addition, the eight -story garage will tower over the surrounding smaller buildings on the adjacent streets and is INAPPROPRIATE [emphasis added]." "Consider revising the scheme of the project by not including the proposed F.A.R. bonuses, and/or by providing two smaller towers on the parcels on each side of NE 28th St. This will provide a more appropriately scaled project and will provide an opportunity to create a great street section by designing buildings on each side of the street." 2. Florida Department of Transportation (FDOT), May 10, 2004: "The Biscayne Boulevard/NE 28th Street intersection fails under existing conditions. No improvements have been recommended to mitigate the operations at this location." "There are a number of concerns with the traffic analysis, as outlined in the sections below." Submitted into the public record in connection with item Fz-i on /d -7#-o d Priscilla A. Thompson City Clerk Miami City Commission October 28, 2004 Page 5 "Additional intersections may be impacted by the proposed development and should be considered." "The eastbound and westbound approaches currently operate over capacity. No mitigation has been recommended to return this intersection to acceptable operations." "We currently find the traffic impact for the 'Onyx 2 Condominium' development insufficient [emphasis added] and requires those corrections listed above." Analysis for Variance The City's Zoning Code, Sec. 1901, provides the definition and limitation of a variance: A variance is a relaxation of the terms of the ordinance where such action will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of this ordinance would result in unnecessary and undue hardship on the property. As used in this ordinance, a variance is authorized only for height, lot coverage, dimensions of yards, parking, other open spaces and/or loading requirements. Under no circumstances shall the zoning board grant a variance to permit a floor area ratio or a use not permitted under the terms of this zoning ordinance in the zoning district involved, or any use expressly or by implication prohibited by the terms of this zoning ordinance in the said zoning district, or to relax any specific condition(s) of use referred to in the schedule of district regulations under the principal uses and structures and accessory uses or under section 906 of this ordinance, Accessory uses. Section 1902.3 lists the criteria for granting a variance: (a) Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district; (b) The special conditions and circumstances do Submitted into the public record in connection with item Pt-1 on to la loy Priscilla A. Thompson City Clerk Miami City Commission _October 28, 2004 Page 6 not result from the actions of the petitioner; (c) Literal interpretation of the provisions of this zoning ordinance deprives the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this zoning ordinance and works unnecessary and undue hardship on the petitioner; (d) Granting the variance requested conveys the same treatment to the individual owner as to the owner of other lands, buildings, or structures in the same zoning district; (e) The variance, if granted, is the minimum variance that makes possible the reasonable use of the land, building, or structure; and (f) The grant of the variance is in harmony with the general intent and purpose of this zoning ordinance, and is not injurious to the neighborhood, or otherwise detrimental to the public welfare. Additionally, the jurisprudence on zoning variances is well settled in Florida. Herrera, et al, v City of Miami stands for the proposition that the City of Miami cannot grant a zoning variance without a showing that no reasonable use can be made of the land without the variance. 600 So.2d 561 (Fla. 3rd DCA 1992) . "Where land is zoned for residential use, deprivation of all beneficial use is proved only when it is established by competent evidence that the land cannot be used for any of the purposes permitted in such district."Metropolitan Dade County v. Betancourt, 559 So.2d 1237, 1239 (Fla. 3it1 DCA 1990). Moreover, "a variance seeker must demonstrate an exceptional and unique hardship to the individual landowner not shared by other property owners in the area." Nance v. Town of Indialantic, 419 So2d 1041 (Fla. 1982). Maturo, et al, v. City of Coral Gables establishes that [A] "[h]ardship" required for a variance will be found only where property is virtually unusable or incapable of yielding reasonable return when used pursuant to zoning regulations, and hardship must arise from circumstances peculiar to the property itself, unrelated to conduct or self -originated expectations of its owners. 619 So.2d 455 (Fla. 3rd DCA 1993) . Submitted Into the public record in connection with item P -1 on /0-3_- _ Priscilla . Thompson -� City Cleric Miami City Commission October 28, 2004 Page 7 Nance v. Town of Indialantic stands for the rule that "[t]he hardship must be such that it renders it virtually impossible to use the land for the purpose for which it is zoned." 419 So2d 1041 (Fla. 1982). Finally, in Thompson v. Planning Comm'n, the Court ruled "[h]ardship may not be found unless there is a showing that under present zoning no reasonable use can be made of the property." 464 So.2d 1231 (Fla. lst DCA 1985). The- applicant has assembled 5 individual lots fronting the north side of SE 28th Street to produce a building site approximately 111' by 305' and thus asserts that the building site now fronts Bayshore Drive. (Exhibit "D") Now the applicant is requesting a total waiver (15') of the side yard setback (on SE 28'' Street) in order to over -develop the land. Staff suggests that the "narrow width of the subject property" constitutes a "substantial hardship". First, the alleged hardship is created by the applicant assembling land and by erroneously determining that SW 28th Street is the side street for the entire parcel. More than half the building site fronts SW 28th Street and the SD-20/R-4 zoning code requires a 20' front and 10' rear setback. Second, the applicant has not met all the requirements for variances set out in 1902.3(a)-(f). All, not some, of these elements must be met to justify the variance. Neither the applicant nor the City has shown competence evidence that the requirements have been met. Third, the applicant has not shown that the property is unusable without the variance, as required by Herrera, et al, v City of Miami. In fact, there are many uses for the land consistent with the R-4 zoning code if the applicant would not seek the variance, two density bonuses, and increase in FAR. Finally, the landowner has not demonstrated "an exceptional and unique hardship...not shared by other property owners in the area." Nance v. Town of Indialantic, 419 So.2d 1041 (Fla. 1982). In fact, all the surrounding landowners share the same lot dimensions as the applicant. The landowner seeks a variance only to supersize its development venture. Submitted Into the public record in connection with item P2-1 on lu Priscilla A. Thompson City Clerk Miami City Commission October 28, 2004 Page 8 General Analysis Miami Neighborhood Comprehensive Plan. The State's growth management act, Chapter 163, Part II, Florida Statutes, requires all municipalities and counties to adopted long-term "comprehensive plans" providing residents with notice and predictability of how land will be used, its density, and intensity. The state Act mandates that all development orders, such as a major use special permit, shall be consistent with the City's adopted Comprehensive Plan. The Comprehensive Plan contains numerous policies protecting existing neighborhoods from incompatible developments and from over -burdening city infrastructure. The Onyx 2 project, as designed, will dramatically and negatively impact the adjacent low -medium scale neighborhood; it will detrimentally impact the city's transportation and street network; and it will cause harm to the City's shoreline along Biscayne Bay. Gross Lot Area. Section 2502 of the City's Zoning Code defines "Gross Lot Area" as: The net area of the lot, as defined herein, plus half of adjoining street rights -of -way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like. For areas included in applicable Special Districts (SD-5, 6, 7, 10, 11, 14, 16) , the gross lot area shall include net area of the lot plus half of adjoining street rights -of -way and ninety (90) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like. In both cases, where such space adjoins lots on two (2) adjacent sides, the area thus added shall include the area required to complete the gap otherwise left at the intersection. The proposed development obtained additional gross lot area because it is adjacent to Biscayne Bay. In reality, the proposed development is not directly adjacent to Biscayne Bay, a piece of land with the address 498 NE 28th Street and folio number 01-3230-017-0420, lies between the proposed project and Biscayne Bay. (Exhibit "E"). The additional gross lot area was allowed notwithstanding the fact that the project is not directly bay front, because of an incorrect assumption that this Submitted Into the public record in connection with item P2--1 on to •.g_. Priscilla A. Thompson City Clerk Miami City Commission October 28, 2004 Page 9 piece of land is public property. In fact, the legal description makes it clear that this land is not public, but is actually semi -private. The legal description of the land is "Bankers Park PB 2-53 Riparian rights opposite Bankers Park PB 2-53 DB 914 Page 163 Lot size site value." This land is semi -private - it is solely for the benefit of the residents of the Banker's Park Plat who have riparian rights to the Bay inlet located at the eastern end of 28th street. Therefore, this land is not in actuality owned by the city or the county, rather, it is owned by the residents of the Bankers Park Plat. Thus, it is inappropriate for the proposed project to gain additional gross lot area from being adjacent to Biscayne Bay. Project Recommendations The project should be remanded back to the Urban Design Review Board and redesigned in accordance with the recommendations from the City's Design Review Committee and FDOT in order to address the following issues: 1. Revised site plan, floor plan, and elevation drawings (for ALL elevations), as well as context drawings that clearly delineate the relationship of the proposed project with the as -built conditions of the immediate area, shall be prepared by the applicant; such drawings shall include the following: a. The total number of units shall be substantially reduced. b. The proposed FAR bonuses shall not be permitted, or shall be substantially reduced, including the gross lot area increase. c. The overall architecture of the tower shall be substantially redesigned in order to incorporate an architectural vocabulary that is unique to the Edgewater area and which is consistent with architecturally successful residential structures in the area. d. A revised street tree plan, consisting of full canopy trees, shall be provided for ALL sides of the property to re-establish the lost pine and palm canopy destroyed by the developer. The applicant shall bear the full cost for the installation of such trees and any related sidewalk work. Submitted Into the public record in connection with item Pz-?on I o-20 Priscilla A. Thompson City Clerk Miami City Commission October 28, 2004 Page 10 Thank you for your immediate attention and consideration to this very important matter. Very truly yours, DICKMAN, AICP, Esq. Submitted into the public record in connection with item P 2- ? on to-,e -o ► Priscilla A. Thompson City Clerk Property tntormatton Map My Home Miami -Dade County, Florida d- lf=lf'llt�f [ L�i7T% Property Information Map Aerial Photography - AirPhoto USA 2004 0 114 ft This map was created on 10/28/2004 11:30:34 AM for reference purposes only. Web Site © 2002 Miami -Dade County. All rights reserved. Summary Details: Folio No.: 01-3230-014-0160 Property: 456 NE 29 ST Mailing DAVID AUERBACH Address: 456 NE 29 ST MIAMI FL 33137-4618 Property Information: Primary Zone: 5000 MULTI -FAMILY, HIGH DENSITY RESIDENTIAL CLUC: ‘0003 MULTIFAMILY - APARTMENTS Beds/Baths: 10/10 Floors: 3 Living Units: 8 Fool age: 4, 790 Lot Size: 14,280 SQ FT Year Built: /0 BROADMOOR AMD PB 2-58 Legal E143FT OF W313FT OF LOT Description: 1 LESS E7FT BLK 14 LOT SIZE 136.000 X 105 OR 18895-3793 12 1999 4 Sale Information: Sale O/R: Sale Date: 12/1999 Sale Amount: $0 Assessment Information: Year: 2004 2003 Land Value: $642,600 $38,198 A307,020 $29,776 Building Value: Market Value: $680,798 $166,700 /$163,592 $25,000 A336,796 $25,000 Assessed Value: Homestead Exemption: Total Exemptions: $25,000 $25,000 Taxable Value: $141,700 $138,592 Submitted Into the public record in connection with item P2 --7 on ro - z -o y Priscilla A. Thompson City Clerk http://gisims2.co.miami-dade.fl.us/myhome/printmap.asp?mapurl=http://gisims2.co.m iam... 10/28/2004 Auerbach property 456 NE 29 ST Existing character and context of the surrounding area is predominately low - medium residential. Auerbach property Onyx 2 property tN as aasaiar.�>�.- ai a i4ea1 3l 1111 •fl9A®11111111/ 1111 �111111 i1111111 11/1i 410NYX2 Waterfront Tower & Lofts t MUSP SUBMISSION JUNE 1, 2004 East Elevation Auerbach Property North Elevation Auerbach Property ONYX 2 Waterfront Tower & Lofts MUSP SUBMISSION JUNE 1, 2804 3 3 . -0 Q cr* 8 0 ,3 0 3 ISCD CS Co• 1,117:Itle MAP OF BOUNDARY SURVE VACANT LOT SCALE -ctsrfe'has \ a 7Frr 1 tt, \ rec q. • / \ Lr' NE 28th • _ .?? '•'41 .;_ _+„7LLYDf,..cAta LOCATION SKETCH SCALE : I--100' 11,/le el.n. Ims "irlits-s•F was:- crorro_orrro =remit Kt.. 10 11. 11 DSUICer Ise Nes. Atoms 141)2 ft.( .1..fONG anVit Nowa, atte-FrFaraiatiast....,e, ....AL. *M. 1,1201.: C1, nu, tome% ant MITI 11/InitHL oisn LIM at= or nag a4S1 UNA or x.ca rsta, anta ,a 1.1044 oor: or VICILL./1.11107-01.-TA4 111111 Or roam E111511010 0401444 glAtro3letWOZVOgC' trtVo.1 rothasatcs rax molars. coma or ams 1.0.1 MM. rser cuarac rer crown. or = 34411110E Or YID WO' it aoco rMat Mara. skin +owl dew rie cesx Atens. r•1417.1r":14"="471..rralgt= 70""X " USD V.U. rag 14.140 POT ILCAK 111(.143 1071. 100 MT 1.13.114tie 14,511 01 1,O1.0 at IMMIX, (.1.7kINZtr, •.. AS117.3. KU. 011 W.. C.00,1741101. t-+ji+RD' SargAVVAiii: V.• r..r07.iyar 1,, csrns, ufrf " :ate 20P. MA ft YORS, INC plgit6.7113T:B2rANUI ST...1j'71/24231, Writ 12. ICALII. •• rum+. (.:3{ 14,-01.0, Da. (0.5i 71.1-71. GAIVIliAKSOR.1.01.0011 • .. 01.....•••+=er:•• •141.-r0000rroI.,, 305'-tr Parcel 1 Auerbach property_ 1 . / 1 _i 280,0' • 1 20*-0' 35' ,c,s,,...i, ,--.rt? ,-.§.-0. 4, ) , 1- -- 1 1US.-t.r i .!? N.E. 2ath Street §1 . ..„139'-0 ONYX 2 Zoolg District - R-4 Multifamily _Allorsd High-Densay Residential SD.20 Overlay P.M.! I, Net Lot Area =33,855 s.t. Gross Lot Area a53,300 PFKOSi Net Lot Area .17205 el. MOS P.A.R.Nlowed (1 72 s 89,100) =153.389.6 i.f. PUD 80f1V6 PO%) 30,0)7.9 s.t. Settotal =104,007,5 s.f. Dogs Lot Area .35,860 ef. . Afforoable lloesiny Boeux (2514) .. 0.016.5 S.t ' totelNia-ColAtii .51'.06CVi11 ,,- Total Gross LQi Area.23C,tre4.4 t ii5 Um...a, ... . Units allowed 17% i lines previiid .1 i? Frord Yards - 20 ft. SKte Yards adiacer4 fo street ..15 k 1 "41 Side yards adjacent to Alley - 5 k Zol 31marior Yards, -5 ft - " • • a - 4- --•-- ^ --1- •- Parcel 2 . • ....... 27th.ALLEY •NYX2 Waterfront Tower & Lofts MUSP SUBMISSION JUNE I. 2004 ; • SITE AM.. I . .... ; „cr atimatekf. Sttar S. 1r12- - 1%01 '1...e......—..1 Property Information Map rage 1 V1 1 Property Information Map Aerial Photography - AirPhoto USA 2004 This map was created on 10/27/2004 10:36:09 PM for reference purposes only. Web Site © 2002 Miami -Dade County. All rights reserved. My Home Miami -Dade County, Florida C ou! 0 124 ft MIAMIDADE Summary Details: Folio No.: Property: /01-3230-017-0420 Mailing Address: 498 NE 28 ST \CITY OF MIAMI -DEPT OF P&D ASSET MANAGEMENT DIVISION 444 SW 2 AVE # 325 MIAMI FL 33130-1910 Property Information: Primary Zone: 5000 MULTI -FAMILY, HIGH DENSITY RESIDENTIAL CLUC: 0080 VACANT LAND - GOVERNMENTAL Beds/Baths: 0/0 Floors: 0 Living Units: 0 Ad' Sq Footage: 0 Lot Size: 0 SO FT Year Built 0 BANKERS PARK PB 2-53 Lega RIPARIAN RIGTS Descx .,,,..: OPPOSITE BANKERS PARK PB 2-53 DB 914 PAGE 163 LOT SIZE SITE VALUE Sale Information: Sale O/R: 1 Sale Date: 10 Sale Amount: $0 Assessment Info ation: Year: 2004 2003 Land Value: $10,000 $10,000 Building Value: $0 $0 Market Value: $10,000 $10,000 Assessed Value: $10,000 $10,000 Total Exemptions: $10,000 $10,000 Taxable Value: $0 $0 Submitted Into the public record in connection with item P2— 7on {p . _n Priscilla A. Thompson City Clerk http://gisims2.co.miami-dade. fl.us/myhome/printmap.asp?mapurl=http://gisims2.co.miam... 10/27/2agtir'