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HomeMy WebLinkAboutZoning Board Appeal Letterreenberg Traurig Adrienne Friesner Pardo (305) 579-0683 Direct Fax: (305) 961-5683 E-Mail: pardoa(u6gt1aw.com November 17, 2005 VIA HAND DELIVERY Teresita Fernandez, RA, Executive Secretary City of Miami Department of Hearing Boards 444 SW 2nd Avenue Miami, Florida 33130 Re: Electra 1 Appeal - 3601 N. Miami Avenue Dear Ms. Fernandez: On behalf of the owner A & S Design District, LLC ("A & S Design"), we are appealing the decision of the Miami. Zoning Board (the "Board") reached at the public hearing held on November 15, 2005 for the property located at approximately 3601 N. Miami Avenue, Miami, Florida. The issues for consideration on appeal are: (1) whether procedural due process was afforded; (2) whether there was a departure from the essential requirements of law; and (3) whether there was substantial competent evidence in the record to support the G. International, Ltd., 787 So. 2d 838 (P1a_ '2001� Ems..`" l7 "i�:'v':i� � ��u�2t1' ».. G.B. '' The Zoning Board did not afford due process and departed from the essential requirements of the law when it did not dismiss the appeal initiated by the Buena Vista East Historic Neighborhood Association (the "Association") for lack of standing. The Zoning Board's decision is also not supported by substantial competent evidence. Instead of ruling in line with the favorable staff recommendation and other substantial competent evidence presented in support of the application, the Zoning Board based its decision on the opinion testimony of neighbors, a kind of evidence long recognized by the courts as incompetent. The A & S Design application was supported by a favorable staff recommendation and expert testimony by Cathy Sweetapple, a Planner and Richard Garcia, a traffic consultant, all of which constitutes substantial competent evidence. Standing. The appeal to the Board initiated by the Buena Vista East Historic Neighborhood Association (the "Association") should have been dismissed. By refusing 122',i;: Ms. Teresita Fernandez November 17, 2005 Page 2 to dismiss the Association's appeal, the Board acted contrary to controlling case authority from this jurisdiction. In the context of an appeal to the very same Board by another representative association -- the Coconut Grove Civic Club -- the Third District Court of Appeal held: "The Club in this case, a representative association, lacks standing to challenge the Board's decision on any ground other than procedural irregularity." Peacock v. City of Miami and Coconut Grove Civic Club, 646 So. 2d 291 (Fla. 3d DCA 1994). The Association did not raise any issue going to procedural irregularity. Its appeal consequently should have dismissed for lack of standing as is required by the crystal clear rule imposed by the Third District's decision in Peacock. The appeal also failed to be filed by individuals since everyone listed on the appeal letter, signed in their capacity as an Association board member. Further, even if it is recognized that they did file as individuals, no evidence was placed in the record establishing that they are an "adversely affected person" which is a requirement in the City's Ordinance in order to file an appeal. The individual appellants also lack standing under Renard v. Dade County 261 So.2nd 832(Fla 1972), in that they reside more than 1100 feet away from the property in question; the appellants are buffered from the property by 3 1/2 city blocks, the Julia Tuttle Expressway, and an approximately 38 acre SD-8 zoning district which is totally different in character than the R-2 district where appellants reside. The SD-8 district has different land development regulations than the R-2 district including but not limited to setbacks, height and density. The appellee did not request any variances, special exceptions and/or rezoning for the property but was merely applying for a code required Class II Special Penniit. Finally, the individual appellants are within the class of persons that were not entitled to receive notice under the City's Zoning Ordinance No. 11000. Substantial Competent Evidence. No substantial competent evidence was presented at A & S 'Desi The �,-- gn application was the hearing that could support the Board's dec�sidecision.L T supported by the favorable recommendations of the City of Miami Planning Department, as outlined in the staffs Zoning Fact Sheet. In addition, the application was supported by the testimony of a traffic expert, a planner and an expert architect. All of the foregoing constitutes substantial competent evidence under Florida law. E.g., Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270 (Fla. 2001); Metropolitan Dade County v. Fuller, 515 So. 2d 1312, 1313-14 (Fla. 3d DCA 1987). The Board failed to take this evidence into consideration at the November 15, 2005 public hearing. In stark contrast to the substantial competent evidence submitted in support of the A & S Design application, the Board's decision is supported only by opinion testimony of neighbors. Neighbor testimony does not constitute substantial competent evidence when it is opinion or sentiment. E.g., Metropolitan Dade County v. Section 11 Property Corporation, 719 So. 2d 1204, 1205 (Fla. 3d DCA 1998); Metropolitan Dade County v. Blumenthal, 675 So. 2d 598, 607 GREENBERG TR. uJuG, P.A. Ms. Teresita Fernandez November 17, 2005 Page 3 (Fla. 3d DCA 1995). Th.e testimony presented by the neighbors in this case went only to their feeling that aesthetically the project was, in their opinion, "out of scale." They offered no expert testimony on this issue. We respectfully appeal the decision of the Miami Zoning Board. The foregoing arguments are submitted with full reservation of rights to submit additional arguments and points on appeal to the full extent permitted by law, including the right to submit a memorandum of law prior to any scheduled hearing. Enclosed please find a check in the amount of $500.00 for the appeal fee. We will supplement this appeal with the transcript once it is completed. Please contact me when the item is scheduled to be heard at 305-579-0683. Sincerely, GREENBERG TRAURIG, P.A. By: -t Adrienne F. Pardo, Esq. and WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.A. Gil Pastoriza, Esq. cc: Mr. Alex Forkosh Mr. Daniel Tantieff Ms. Wendy Stephen Ms. Brenda Kuhns MIA-FSI\SAVAGEP1174934601A1li15©5y11_I 1.00AMV86033 ©10l00 GREENBERG TRAURic,