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HomeMy WebLinkAboutMotion to Reconsid. Memo - 2Page 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. 1Zafae[Suarez-Rivas Assistant City Attorney 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Telephone (305) 416-1818 Telecopier (305) 416-1801 rsuarez-rnvas©ci mami.fi.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 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 I 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 -Rivas Assistant City Attorney 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Telephone (305) 416-1818 Telecopier (305) 416-1801 rsuarez-was@ci mami.fi 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: 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 RafaelSuarez-Rivas Assistant City Attorney 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Telephone (305) 416-1818 Telecopier (305) 416-1801 rsuarez-rivas_.ci rzlami f!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, 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 dear 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-R. teas Assistant City Attorney 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Telephone (305) 416-1818 Telecopier (305) 416-1801 rsuarez-rvas@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: 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 S ua rez-kca s Assistant City Attorney 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Telephone (305) 416-1818 Telecopier (305) 416-1801 rsuare'-rivas@cl mlami_.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: 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- :gas Assistant City Attorney 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Telephone (305) 416-1818 Telecopier (305) 416-1801 rsuarez-rivas@ci.rniami.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 & 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