HomeMy WebLinkAboutDocument Submitted into the RecordCITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jorge L. Fernandez, City Attorney
DATE: January 26, 2005
RE: Reconsideration of 3155 SW 22°d Terrace;
File Numbers 04-01178a and 04-01178
At the January 13, 2005, commission meeting, the City Commission approved the
reconsideration of file number 04-01178. This file number relates to an ordinance
changing the Future Land Use Map of the City of Miami Comprehensive Neighborhood
Plan by changing the land use designation of the property located at approximately 3155
SW 22IId Terrace.
The item number to be reconsidered had a companion item, file number 04-01178a,
amending the zoning atlas of Ordinance No. 11000, the Zoning Ordinance, to change the
zoning classification of this same property from "R-2" to "C-1." This companion item
implements the Comprehensive Neighborhood Plan change that the City Commission
voted to reconsider.
Because these items are inextricably joined and the City Commission voted to
reconsider the Comp ehensive Land Use Change item, the intent of the reconsideration
must be interpreted as a reconsideration for both items since they are "companions."
Please advise me immediately if your intention was otherwise.
Hearing Boards will advertise the reconsideration of file numbers, 04-01178 and
04-01178a, by the City Commission at an upcoming public hearing.
c: Alicia Cuervo-Schreiber, Chief of Operations
Ana Gelabert-Sanchez, Director of Planning and Zoning Department
Teresita Fernandez, Executive Secretary, Department of Hearing Boards
Anna M. Medina, Legislative Services Supervisor
Page 1 of 1
Thompson, Priscilla A.
From: Medina, Anna M.
Sent: Wednesday, January 26, 2005 5:39 PM
To: Thompson, Priscilla A.
Subject: FW: Reconsideration of 3155 SW 22nd Terrace
Attachments: Reconsiderationmemo.doc
From: Gomez, Silvia M
Sent: Wednesday, January 26, 2005 4:35 PM
To: Cuervo Schreiber, Alicia; Gelabert-Sanchez, Ana; Fernandez, Teresita; Medina, Anna M.
Cc: Suarez -Rivas, Rafael
Subject: Reconsideration of 3155 SW 22nd Terrace
Attached, please find for your records the reconsideration memorandum for tomorrow's City Commission Meeting
regarding 3155 SW 22nd Terrace, file numbers 04-01178 & 04-01178a. A signed copy was faxed to each one.
Thank you.
S 4 M amez
Litigation Assistant
(305) 416-1840
smgomez@ci.miami.fl.us
1/26/2005
Page 1 of 8
Thompson, Priscilla A.
From: Medina, Anna M.
Sent: Wednesday, January 26, 2005 12:54 PM
To: Thompson, Priscilla A.
Subject: FW: Motion to reconsider - 3155 Southwest 22 Terrace
Importance: High
Ok fine / Thanks.
Rafael- Suarez-R vas
Assistant City Attorney
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Telephone (305) 416-1818
Telecopier (305) 416-1801
rsuarez-rivas@ci.miami.fl.us
Litigation Assistant
Silvia M. Gomez
(305) 416-1840
Above email is for intended recipient only and may be confidential and protected by attomey/client privilege. If
you are not the intended recipient, please advise the sender immediately. Unauthorized use or distribution is
prohibited and may be unlawful.
From: Medina, Anna M.
Sent: Tuesday, January 25, 2005 11:02 AM
To: Suarez -Rivas, Rafael
Cc: 'Ines Marrero-Priegues'; Slazyk, Lourdes Y.; Gelabert-Sanchez, Ana; Wysong, George; Rodriguez, Anel
Subject: RE: Reconsideration of 3155 SW 22 Terrace
Hi Rafael,
can e-mail you the items from Legistar but I don't know about the advertising. Our office
doesn't advertise PZ items; Hearing Boards does. I believe that they have to be advertised 10
days before the meeting but I really couldn't say for sure.
From: Suarez -Rivas, Rafael
Sent: Tuesday, January 25, 2005 10:21 AM
To: Medina, Anna M.
Cc: 'Ines Marrero-Priegues'; Slazyk, Lourdes Y.; Gelabert-Sanchez, Ana; Wysong, George
Subject: Reconsideration of 3155 SW 22 Terrace
Importance: High
1 think the City Attorney will be issuing a memorandum that the City of Miami
City Commission, when they moved to reconsider this item, intended to reconsider both companion items
1/26/2005
Page 2 of 8
(Ordinance No. 04-01178 AND THE COMPANION ITEM AS WELL: Ordinance No. 04-01178a).
Please e mail me a description of both items and when they would now be re- advertised to be heard.
No new votes or amendments to motions to reconsider are needed since this was presumably the City
Commission's intention all along.
Staff is to be mindful that for any reconsiderations made the record should refer to both of the companion p& z
items.
Thank you.
Rafael- Suarez- ?jvas
Assistant City Attorney
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Telephone (305) 416-1818
Telecopier (305) 416-1801
rsuarez-rivas@ci. m iam i.fl. us
Litigation Assistant
Silvia M. Gomez
(305) 416-1840
Above email is for intended recipient only and may be confidential and protected by attomey/client privilege. If
you are not the intended recipient, please advise the sender immediately. Unauthorized use or distribution is
prohibited and may be unlawful.
From: Thompson, Priscilla A.
Sent: Wednesday, January 19, 2005 12:53 PM
To: Fernandez, Jorge L.; Suarez -Rivas, Rafael; 'George.Wysong@miami-police.org'; Gelabert-Sanchez, Ana;
Slazyk, Lourdes Y.; Fernandez, Teresita
Cc: Scheider, Sylvia; Medina, Anna M.; Rodriguez, Anel
Subject: FW: Motion to reconsider - 3155 Southwest 22 Terrace
Importance: High
Someone from the Office of the City Attorney, Planning Department, and/or Hearing Boards needed to inform the
Commissioner Regalado of this issue so that the necessary corrective action is initiated.
Priscilla A. Thompson
City Clerk
(305) 250-5370
fax (305) 858-1610
Original Message
From: Medina, Anna M.
Sent: Wednesday, January 19, 2005 12:13 PM
To: Thompson, Priscilla A.
Subject: FW: Motion to reconsider - 3155 Southwest 22 Terrace
PAT, see George's response below in yellow.
1/26/2005
Page 3 of 8
From: Suarez -Rivas, Rafael
Sent: Wednesday, January 19, 2005 12:08 PM
To: Medina, Anna M.
Subject: FW: Motion to reconsider - 3155 Southwest 22 Terrace
Rafae(Suarez- Rivas
Assistant City Attorney
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Telephone (305) 416-1818
Telecopier (305) 416-1801
rsuarez-rivas@ci.miami.fl.us
Litigation Assistant
Silvia M. Gomez
(305) 416-1840
Above email is for intended recipient only and may be confidential and protected by attomey/client privilege. If
you are not the intended recipient, please advise the sender immediately. Unauthorized use or distribution is
prohibited and may be unlawful.
From: Wysong, George
Sent: Wednesday, January 19, 2005 11:14 AM
To: Suarez -Rivas, Rafael
Subject: RE: Motion to reconsider - 3155 Southwest 22 Terrace
-"Couldn't we just have them amend their motion to reconsider, perhaps at the next
meeting, to include the zoning change?"
Since I perceive the situation in the same manner as Rafael, i.e. that it should not be done, I
think that a higher power than us may have to be invoked.
It seems to me that whoever pushed to have this item reconsidered should have recognized
that there were two ordinances. Based on the transcript portion that has been provided it
seems pretty clear that only one of the two ordinances was timely brought forward for
reconsideration. The transcript reflects that when the reconsideration of the item was
discussed, the moving Commissioner stated: "Well, this is a motion to reconsider Ordinance
Number 04-01178, which was denied on first reading at the December 9, 2004 Commission meeting."
The record does not reflect any mention of Ordinance Number 04-01178a by anyone. Further,
when the Commissioner indicated the effect of the reconsideration he indicated that the
ordinance would change the property at "3155 Southwest 22 Terrace, from duplex residential to
restricted commercial. That's the motion. " He use land use terms and not zoning terms. It would
have been better if he said from R2 to C1 but he didn't. Since there are two separate
ordinances and only one was timely brought forward for reconsideration it looks to me that
amending the motion does not, as Rafael says, cut the mustard.
However, the aforementioned higher power may come to a different conclusion. An argument
1/26/2005
Page 4 of 8
can be made that the brief discussion of the Commission shows the intent of the City
Commission to correct the situation as a whole so that Rex Art could build their building. The
fact that the Commissioner only mentioned one of the ordinances is a mere technicality. The
two items share the same ordinance number, except for the letter (a) attached to the zoning
change. The Commissioner did not say he wished to reconsider the land use change. Nor did
he say he wanted to reconsider the zoning change.
From: Suarez -Rivas, Rafael
Sent: Wednesday, January 19, 2005 9:48 AM
To: Medina, Anna M.
Cc: Wysong, George
Subject: RE: Motion to reconsider - 3155 Southwest 22 Terrace
Yes normally you could do that under the Rules but, in this instance, the answer is no. I think that amendment
would allow them to indirectly do what §62-2 of the Code does not let them directly do, to wit: reconsider a
separate land use item AFTER the next regular meeting following the action. Remember it must be done at the
next regular meeting per §62-2. It does not, in my opinion, "cut the mustard" to allow a procedural rule to prevail
over a substantive prohibition in §62-2. Bottom line- Due to §62-2 the reconsideration of land use items can only
be made by the next regularly scheduled City Commission meeting. The City Code binds the City Commission in
this respect and that is regrettably the correct answer. Feel free to check with Ms. Chiaro but I would support my
position with the clear language of §62-2. The bottom line- The Comp. Plan can be reconsidered but the zoning
change must be, in my opinion, applied for again, as allowed by law. George?
Rafael Suarez -Rivas
Assistant City Attorney
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Telephone (305) 416-1818
Telecopier (305) 416-1801
rsuarez-rivas@ci. m iam i.fl. us
Litigation Assistant
Silvia M. Gomez
(305) 416-1840
Above email is for intended recipient only and may be confidential and protected by attomey/client privilege. If
you are not the intended recipient, please advise the sender immediately. Unauthorized use or distribution is
prohibited and may be unlawful.
From: Medina, Anna M.
Sent: Wednesday, January 19, 2005 8:58 AM
To: Suarez -Rivas, Rafael
Cc: Wysong, George
Subject: RE: Motion to reconsider - 3155 Southwest 22 Terrace
Good Morning!
1/26/2005
Page 5 of 8
Rafael, to answer your earlier question, yes they reconsidered the land use change
and not the zoning change.
Couldn't we just have them amend their motion to reconsider, perhaps at the next
meeting, to include the zoning change?
From: Suarez -Rivas, Rafael
Sent: Tuesday, January 18, 2005 3:44 PM
To: Medina, Anna M.
Cc: Wysong, George
Subject: FW: Motion to reconsider - 3155 Southwest 22 Terrace
Ana- George concurs and raises an additional point (please see below).
Rafael Suarez-R.jvas
Assistant City Attorney
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Telephone (305) 416-1818
Telecopier (305) 416-1801
rsuarez-was@ci. m iam i.fl. us
Litigation Assistant
Silvia M. Gomez
(305) 416-1840
Above email is for intended recipient only and may be confidential and protected by attomey/client privilege. If
you are not the intended recipient, please advise the sender immediately. Unauthorized use or distribution is
prohibited and may be unlawful.
From: Wysong, George
Sent: Tuesday, January 18, 2005 3:42 PM
To: Suarez -Rivas, Rafael
Subject: RE: Motion to reconsider - 3155 Southwest 22 Terrace
I think that you are correct. Also note Section 2214.2 of the Zoning Ordinance which reads as follows:
2214.2. Limitation on further consideration after denial.
Whenever the city commission has denied an application for the rezoning of property, the zoning board shall not thereafter:
(a) Consider any further application for the same rezoning of any part or all of the same property for a period of eighteen (18) months from
the date of such action;
(b) Consider an application for any other kind of rezoning on any part or all of the same property for a period of twelve (12) months from the
date of such action;
(c) Consider an application for rezoning that involves the same owner's property within two hundred (200) feet of property granted a change
within a period of twelve (12) months.
So, the property can't get rezoned for at least 18 months in light of §62-2 and the above -referenced section.
It looks like who ever asked the Commissioner to consider one item without the other made a major blunder.
Allowing the one item to go without the other would create an inconsistency in out comp plan, it seems to me.
1/26/2005
Page 6 of 8
From: Suarez -Rivas, Rafael
Sent: Tuesday, January 18, 2005 12:28 PM
To: Medina, Anna M.; Wysong, George
Cc: Gomez, Silvia M; Totino, Emily; 'emily.totino@ci.miami.fl.us'
Subject: RE: Motion to reconsider - 3155 Southwest 22 Terrace
Well it seems like it could not be classified a scrivener's or clerical error because they are two separate land use
actions. The Commission can only move to reconsider a P & Z item at their first regularly scheduled meeting
following the meeting at which the action was taken to be reconsidered.
§62-2, City Code. I don't know (in light of this Code section) what he can now do. Perhaps we are stuck with this
status quo. . Any one else have any thoughts? Maybe amending the motion to reconsider? The problem is §62-2.
Rafael -Suarez -Rivas
Assistant City Attorney
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Telephone (305) 416-1818
Telecopier (305) 416-1801
rsuarez-rivas@ci.miami.fl.us
Litigation Assistant
Silvia M. Gomez
(305) 416-1840
Above email is for intended recipient only and may be confidential and protected by
attorney/client privilege. If you are not the intended recipient, please advise the sender
immediately. Unauthorized use or distribution is prohibited and may be unlawful.
From: Medina, Anna M.
Sent: Tuesday, January 18, 2005 10:59 AM
To: Wysong, George; Suarez -Rivas, Rafael
Cc: Gomez, Silvia M; Totino, Emily; 'emily.totino@ci.miami.fl.us'
Subject: Motion to reconsider - 3155 Southwest 22 Terrace
Importance: High
Good Morning George 86 Rafael,
At the last Commission Meeting, Commissioner Regalado passed a motion
reconsidering a prior PZ item, which was file i.d. 04-01178. However, we believe that
he may also have meant to reconsider its companion item, which was file i.d. 04-
01178a. If you read the minutes below (they're not that long), you will see that he
only refers to the first one.
He wants to have this item heard at the Feb. 24 meeting, however, can they hear one
without hearing the other? If not, I'm assuming that we would need to tell him about
this so he can bring it up as a pocket at the next Commission Meeting. Please
advise.
1/26/2005
Page 7 of 8
Thanks.
From: Jones, Joyce
Sent: Tuesday, January 18, 2005 10:44 AM
To: Medina, Anna M.
Subject: NA.4
Here I go again.
11.
Chairman Sanchez: Next item.
Commissioner Regalado: Another simple one, and this is following Johnny Winton's teachings.
Commissioner Winton: My what?
Commissioner Regalado: Teachings. Your --
Commissioner Winton: I didn't know I had any of those.
Commissioner Regalado: Yes, you did. Well, this is a motion to reconsider Ordinance Number 04-
01178, which was denied on first reading at the December 9, 2004 Commission meeting. Let me tell
you the history of this, and you will like this. This is a motion that came before the PZ (Planning &
Zoning) agenda, and it was in my district. These people bought this building. They couldn't -- they said
that there's no way that they can operate the new business Rex Art --
Commissioner Winton: Right.
Commissioner Regalado: -- if they didn't have --
Commissioner Winton: Yep.
Commissioner Regalado: -- exit on 22 Terrace.
Commissioner Winton: Right.
Commissioner Regalado: Actually, they were correct. There is no way to enter through Coral Way, so
the Commission denied this, and they were very disappointed.
Commissioner Winton: And upset. Oh, they were crying.
Commissioner Regalado: And they went back and decided to come back and say, "We're going to
demolish the building and build a new building, and we will need -- we will not need exit on 22
Terrace."
Commissioner Winton: Very good.
Chairman Sanchez: So --
1/26/2005
Page 8 of 8
Commissioner Regalado: So --
Chairman Sanchez: This is a motion to --
Commissioner Winton: Very good.
Chairman Sanchez: -- reconsider.
Commissioner Winton: Second.
Chairman Sanchez: The maker of the motion has to be the --
Commissioner Regalado: 3155 Southwest 22 Terrace, from duplex residential to restricted commercial.
That's the motion.
Chairman Sanchez: OK. The motion --
Commissioner Winton: Second the motion.
Chairman Sanchez: -- to reconsider is being made by Commissioner Regalado, second by Johnny
Winton. All in favor, say "aye."
The Commission (Collectively): Aye.
Chairman Sanchez: Anyone in opposition, having the same right, say "nay." Motion carries.
1/26/2005