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HomeMy WebLinkAboutZB Appeal LetterApril I I. 2006 Teresita Fernandez City of Mimi 444 SW 4'h Avenue Miami, FL 33130 Re: Electra II (Two) Appeal Dear Ms. Fernandez: With tbis letter, Brenda Kuhns, Wendy Stephan, Pat Kelly and the Buena Vista East Historic Neighborhood Association (the "Neighbors") hereby appeal the decision of the Miami Zoning Board (the "Board") reached on March 27, 2006, denying the Neighbors' appeal of the Class II Special Permit for Electra 11(05-0313), a high-rise condominium tower proposed to be located at approximately 100 NE 39th Street, Miami, Florida, and owned by A&S Development (the "Developer"). The issues for consideration are: (1) whether procedural due process was afforded; (2) whether there was a departure from the essential requirements of law; (3) whether there was substantial competent evidence in the record to support the Board's decision; and (4) whether, after evidence and arguments of law were presented, the Board came to the proper decision. The Board did not afford due process and departed from the essential requirements of law when it did not grant the Neighbors' appeal. The Neighbors presented substantial competent evidence on a number of matters, including how Electra II failed to meet the required intent of SD-8, specifically Sections 608.1 and 608.3 of Miami's zoning ordinances; the design criteria required by Section 1305; and requirements of the comprehensive plan regarding maintenance of levels of service and protection of neighborhoods. See Metropolitan Dade County v. Section 11 Properties Corp., 719 So. 2d 1204 (Fla. 3d DCA 1998). The Developer failed to show substantial competent evidence that Electra 11 complied with Miami's zoning code or that approval of it would be in accordance with the comprehensive plan. In addition, the Board did not properly apply the law when it was asked to determine whether Electra II conformed with § 608.1, 608.3, 1305.2, and the comprehensive plan. After reviewing the evidence in the record, no reasonable finder of fact could have found that Electra 11 conformed with applicable law. For these reasons, the decision of the Board should be reversed. Substantial Competent Evidence Section 608.3 states that "[t]he purpose of the Class II Special Permit shall be to ensure conformity of the application with the expressed intent of this district (SD-8), with the applicable criteria listed in Section 1305 and any other applicable criteria specified in this ordinance." (emphasis added). The Developer failed to present substantial competent evidence that Electra II conformed with the expressed intent of SD-8 or with the criteria set forth in Section 1305. Section 608.1 requires that new structures in the design district "strengthen and encourage the expansion of design service activities in this area" and states that "greater intensities [will be • allowed] for appropriate design -oriented service uses." The Neighbors showed substantial competent evidence that Electra II actually harms the Design District and thwarts the intent of SD-8 by decreasing three -fold the amount of commercial space that could be used for a design - specific purpose. The Neighbors also showed that § 608.1 allows for increased density only "for 1 ed-use development sites abutting principal arterial roadways" and that Electra 11 is not ed on an arterial roadway but rather can small, neighborhood roads with one way going in each direction. The Developer failed to present substantial competent evidence to the contrary, Instead, the Developer's experts discussed the design of the building, not the design -specific use of the building. Furthermore, the Developer's experts spoke only of their conclusions which were not 'based on fact. This evidence, even though it comes from an expert, is insufficient to support the Board's decision. Div. cncAthnin. v. Sarnter, 393 So, 2d 1142, 1145 (Fla. 3d DCA 1981) ("[nlo weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually -based chain of underlying reasoning"). The Developer also failed to present substantial competent evidence that Electra 1I was in. context with the neighborhood, the physical contextual surroundings, or created a transition in bulls and scale, all findings required by Section 1305.2 of the zoning ordinance. In fact, substantial competent evidence in the record showed, just the opposite. The developer's own plans contained a page called "Context" which contained nine small photographs of structures creating context for Electra 1I. All structures were one or two stories in height, failing to provide any evidence of context for a 220-foot tower. The Neighbors showed evidence using photos, maps and site plans that Electra 11 was enormously out of scale and context and failed to create a transition, all requirements of § 1305.2. See tip' 1305.2; Section 11 Properties, 719 So. 2d 1204. The Developer failed to rebut this evidence. Instead, the :Developer's experts merely stated that the building was in context, and the Developer's attorney stated merely that the building did create a transition. None of this is evidence sufficient to support the Board's decision, See Sumter, 393 So. 2d at 1145. Departure from the essential requirements of law The Board failed to properly apply the law by failing to recognize that Electra 11 did not meet the requirements of §§ 608.1, 608.3, and 1305 of Miami's zoning code and the comprehensive plan. The Board's decision was arbitrary and capricious because no evidence was presented to support the Board's finding that Electra Ii complied with applicable law. The overwhelming evidence submitted by the neighbors showed that the Electra II was plainly out of scale and out of context with the neighborhood and existing physical contextual environment, all of which consist of one- to five -story structures. See § 1305.2; Section 11 Properties, 719 So. 2d 1204. The Developer failed to present substantial competent evidence to the contrary. Thus, the Board failed to properly apply the law and departed from the essential requirements of law by improperly applying the criteria of § 1305.2 to the facts presented. The Neighbors presented evidence that design -specific uses would be decreased if Electra II were built because Electra Il would cause a three -fold decrease in commercial space available for design -specific uses. In order to get a Class II Special Permit, it must be shown that Electra II will further the intent of SD-8, which is to "strengthen and encourage the expansion of design service activities in this area" and to allow "[gireater intensities for mixed -use development sites abutting principal arterial roadways." § 608.1. The Board determined that the intent of SD-8 and the criteria of § 1305 had been met even though no evidence was presented to support that decision. 2 We respectfully appeal the decision of the 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 hearing. We respectfully seek review of the Zoning Board's decision by the City of:Miami Commission. Please notify Brenda .Kuhns at 305-479-8466 or Wendy Stephan at 305-573-8748 when the appeal date has been scheduled. Respectfully yours, Brenda Kuhns Individually and on behalf of the Buena Vista East Historic Neighborhood Association Wendy Stephan Individually and on behalf of the Buena Vista East Historic Neighborhood Association Pat Kelly Individually and on behalf of the Buena Vista East Historic Neighborhood Association 3