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HomeMy WebLinkAboutApellee Points & Authorities in Opposition to AppealCITY COMMISSION OF THE CITY OF MIAMI, FI OR;IDA CASE NO. 2005-00014 5301 and 5501 Biscayne Boulevard APPEAL OF CLASS II SPECIAL PERMIT MORNINGSIDE CIVIC ASSOCIATION, ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD, ELVIS CRUZ, Petitioners, Vs, CITY OF MIAMI ZONING BOARD, MORNINGSIDE DEVELOPMENT, LLC Respondents. i APPELLEE, MORNINGSIDE DEVELOPMENT, LLC'S POINTS AND AUTHORITIES IN OPPOSITION TO APPELLANTS' "APPEAL AND MOTION TO VACATE AND REMAND WITH INSTRUCTIONS CITY OF MIAMI ZONING BOARD DECISIONS APPROVING CERTAIN PROJECTS AT 5301 AND 5501 BISCAYNE BOULEVARD" Appellee, Momingside Development, LLC ("MDL"), by and through undersigned counsel, hereby files its Points and Authorities in Opposition to Appellants' "Appeal and Motion to Vacate and Remand with Instructions City of Miami Zoning Board Decisions Approving Certain Projects at 5301 and 5501 Biscayne Boulevard," and states as follows: WHITE & C A S E uP Wachavia Financial Center, Miami, Florida 33131-2352 Tel+ 1 305 371 2700 MIAMI 65I667 v2 (2K) • The record for this appeal is limited to the record before the Zoning Board at the time it denied the appeal by a 7-1 vote on December 13, 1994. See Order, Upon Motion for Clarification, dated October 18, 2005, at 7. The Court's order specifically states that "the city commission's scope of review is limited to a traditional appellate review of the Zoning Board's decision under the zoning ordinance." Id. The Court does not authorize a second de novo hearing before the Zoning Board. On January 26, 2006, the City Attorney properly advised the City Commission that it sits as an appellate body and that the scope of review is limited to the record before the Zoning Board. See Meeting Minutes, dated January 26, 2006, at 190-91. • The City Attorney advised the City Commission on January 26, 2006 that it must consider this matter through three filters: (1) whether the Zoning Board granted procedural due process to all the parties involved, i.e., it was an open hearing, notice was given and everyone that appeared had a fair opportunity to present their case; (2) whether the essential requirements of the law have been observed, i.e., whether the Zoning Board applied the correct law, code or ordinance in reaching its decision; and (3) whether the Zoning Board's decision is supported by competent substantial evidence, i.e., whether the Zoning Board's decision was based on such relevant evidence that will establish a substantial basis of fact from which the issue can be reasonably inferred. See Meeting Minutes, dated January WHITE S. CAS E uP Wachovia Financial Center, Miami, Florida 33131-2352 Tel+ 1305 371 2700 MIAm 65iW2 v2 (2K) 2 26, 2006, at 191. These instructions are consistent with applicable law. See Dusseau v. Metropolitan Dade County Bd. of County Comm'rs, 794 So. 2d 1270 (Fla. 2001). The Florida Supreme Court has made it clear that the issue before the City Commission in this appeal is not whether the Zoning Board's decision was the "best" decision or even a "wise" decision, but rather whether there is any evidentiary support for the decision. Dusseau, 794 So. 2d at 1276; see Heiman v. Seaboard Coast Line R.R. Co., 349 So. 2d 1187, 1189 (Fla. 1977). The fact that there may be conflicting evidence in the record does not affect the lawfulness of the Zoning Board decision. See Dusseau, supra. • The City Commission's power to "modify" the decision of the Zoning Board pursuant to Section 2004 of the Zoning Ordinance is extremely limited. It does not give the Commission the authority to reweigh the evidence or substitute its judgment for that of the trier of fact, the Zoning Board. It is a well -settled principle of Florida administrative law that an administrative body acting in an appellate capacity may not modify the factual findings of the trier of fact unless it determines from a review of the complete record that such findings were not based on competent substantial evidence and so states with particularity why it finds no competent substantial evidence. See, e.g., Robles v. Victoria's Secret Store, Inc., 900 So. 2d 600 (Fla. 3d DCA 2005);Mabrey v. Florida Parole Comm'n, 891 So. WHITE & C AS EtiP Wachovia Financial Canter, Miami, Florida 33131-2352 Tel+ 1 305371 2700 MIAMI 651667 v2 (2X) 3 2d 1164, 116E (Fla. 2d DCA 2005); Gross , M.D. v. Department of Health, 819 So. 2d 997, 1001 (Fla. 5th DCA 2002). In Gross, the court explained this longstanding rule: When deteu pining whether to reject or modify findings of fact in a recommended order the agency is not permitted to weigh the evidence, judge the credibility of the witnesses, or interpret the evidence to fit its ultimate conclusions. Neither may an agency's responsibility to determine if substantial evidence supports the administrative law judge's findings of fact be avoided by merely labeling, either by the administrative law judge or the agency, contrary findings as conclusions of law. Moreover, an agency may not rely on its own expertise to reverse the administrative law judge's finding that a particular statute was not violated. In summary, if there is competent substantial evidence to support the findings of fact in the record, the Florida courts, including this court, have consistently held that the agency may not reject them, modify them, substitute its findings, or make new findings. Gross, 819 So. 2d at 1001 (internal footnotes and citations omitted); see also Town of Surfside v. Higgenbotham, 733 So. 2d 1040 (Fla. 3d DCA 1999) (authority to "sustain, reverse or modify" decision of fact -finder did not give the Town Manager the authority to review factual findings except "to determine whether such findings are supported by competent substantial evidence"). • The question of whether facts constitute a violation of a rule or statute is a question of fact, not a conclusion of law, and therefore may not be rejected without an explicit finding that such conclusion is not supported by any competent WHITE S CA S ELLP Wachovia Financial Center, Miami, Florida 33131-2352 Tel+ 1305 371 2700 MIAMi 65,667 v2 (2K) `-F substantial evidence. See Goin v. Commission on Ethics, 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995); Lan ston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So_ 2d 150, 153 (Fla. 1st DCA 1985). Here, the Zoning Board made explicit written findings that: "Nt]he proposed project complies with all applicable provisions of the City of Miami Zoning Ordinance, Ordinance No. 11000," ZB Res. (Amended) at ¶ a; (2) "[t]he Planning Director's approval, with conditions, of the Class II Special Permit, after referral to the Zoning Division of the Planning and Zoning Department, the Upper Eastside NET Office and the Urban Development Review Board, further indicates that the proposed project complies with all applicable code requirements, including the design review criteria in Section 1305.2, " ZB Res. (Amended) at ¶ a; (3) "[t]he project drawings, which are part of the record, indicate that the proposed project complies with all of the applicable design review criteria in Section 1305.2 of Ordinance No..11000," ZB Res. (Amended) at ¶ b; (4) "[t]he project architect, Bernard Zyscovich, testified that the proposed project complies with the applicable requirements in the SD-9 district, Section 609 of the Zoning Ordinance [Transcript at 7, 9-10]," ZB Res. (Amended) at ¶ 2(c); and (5) "the Appellants failed to present any competent substantial evidence to indicate that the proposed project does not comply with any of the criteria in Section 1305 of Ordinance No. 11000," ZB Res. (Amended) at ¶ WHITE & C A S E uP Wachovia Financial Center, Miami, Florida 33131-2352 Tel+ 1305 371 2700 M AM1 651667 +2 px) 5 2(0. Bach of these are factual findings that cannot be reversed or modified because, on their face, they are based on competent substantial evidence. • The Planning Director's decision to issue the class II Special Permit, and the stall' recommendation of denial of the appeal, constitutes substantial competent evidence as a matter of law. See, e.g., Metro olitan Dade Coun v. Fuller, 515 So. 2d 1312 (Fla. 3d DCA 1987); Ortega v. Miami -Dade County Bd. of County Comm'rs, 12 Fla. L. Weekly Supp. 209a (Fla. 1 l'' Jud. Cir. Dec. 7, 2004); Tesaurus I Ioldin s Inc. v. Villa e of Ke Bisca e Council, 7 Fla. L. Weekly Supp. 320a (Fla. 11 `h Jud. Cir. February 29, 2000); Bal Harbour, Inc. v. Bal Harbour Village Council, 5 Fla. L. Weekly Supp. 802 (Fla. l lth Jud. Cir. July 31, 1998). • The Morningside Civic Association offered no evidence to the Zoning Board that the project was inconsistent with any provision in the Zoning Ordinance. Mere argument of counsel is not competent, substantial evidence. See National Advertising Co. v. Broward County, 491 So. 2d 1262 (Fla. 4th DCA 1986); see also Steinhardt v. Intercondominium Group, Inc., 771 So. 2d 614 (Fla. 4th DCA 2000); DiSarrio v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998). • The arguments made by the Association in its "Appeal and Motion to Vacate" were never made to the Zoning Board. There is absolutely nothing in the Zoning Board record that serves as the record for this appeal that suggests that the WHITE S. C A S E Lcr Wachovia Financial Center, Miami, Florida 33131-2352 Tel+ 1305 371 2700 MIAMI 651667 v2 (2K) 6 Association ever mentioned the Design Review Criteria in Section 1305.2 of the Zoning Ordinance. The Association never argued that the proposed project does not "respond to the physical contextual environment taking into consideration urban form and natural features." § 1305.2, Miami Zoning Ordinance ("MZO") (DRC I(1)). It never argued that the project failed to "respond to the neighborhood context." § 1305.2, MZO (DRC II(2)). It never argued that the project failed to "create a transition in bulk and scale." § 1305.2, MZO (DRC II(3)). It never mentioned that it believed the project did not comply with DRC I(3) because it is not oriented to the corner and public street fronts. It never even mentioned any problems it had with the parking or driveways at the project. § 1305.2, MZO (DRC 1(2)). It was dead silent with regard to whether the project "promotes pedestrian interaction" or "responds primarily to the human scale." § 1305.2, MZO (DRC III(1)-(2)). It made no argument that the project should have "surface parking areas." § 1305.2, MZO (DRC V(4)). In short, every single one of the arguments advanced in the Association's "Appeal and Motion to Vacate" is now being raised for the very first time on appeal. • It is a basic principle of law that arguments not made to the trier of fact may not be made on appeal. Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005). "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or WHITE & CAS E LLP Wachovia Financial Center, Miami, Florida 33131-2352 Te1+ 1 305 371 270D MIAMI 651667 v2 (2K) 7 ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Id. (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)). As the City is well aware and has itself argued, this basic principle applies equally to local government proceedings. See Fort Lauderdale Board of Adjustment v. Nash, 425 So, 2d 578 (Fla. 4th DCA 1983). The association's failure to raise any of these arguments before the Zoning Board is critical because the burden was on the Association to show, by competent substantial evidence, that the proposed Class II Special Permit (special exception) does not meet the Code's criteria. See Dusseau, 794 So. 2d at 1273. Here, the Association never made any of these arguments to the Zoning Board. It cannot now argue that the Zoning Board erred for failing to consider issues that it never raised. Consideration of any of these arguments by the City Commission would be a departure from the essential requirements of the law. • Had any of these new issues been raised before the Zoning Board, MDL would have easily established that they have no merit. Moreover, the Planning Director, Project Architect and Zoning Board have all concluded that the project complies with all applicable provisions of the Zoning Ordinance, including those now cited by the Association. • The Court determined that the "Garage Height Ordinance" (Ordinance No. 12594), by its own terms, "did not take effect until almost 2 and a half months after WHITE 6, CASELLP Wachovia Financial Canter, Miami, Florida 33131-2352 Tel+ 1 305371 2700 MIAi.II 65160 v2 (21() 8 Moz°ningside Development had submitted its completed application." See Order, Upon Motion for Clarification, dated October 18, 2005, at 3. • The City Attorney has advised the City Commission that MDL is not subject to the Garage Height Ordinance and that "zoning in progress" does not apply: If the second amendment to the SD-9 was not in effect, even though it might have been in process and it might have been discussed, but it was not in effect by the time they effectively perfected their application, then my advice to you is that they do not come under it. They're not subject to it. • Because the SD-9 regulations contain a specific numerical height limitation, the City cannot vary its clear teiins by undefined and uncertain notions of "scale" and "character of the neighborhood." Colonial A artments L.P. v. Cit of Deland, 577 So. 2d 593 (Fla. 5th DCA 1991); Life Concepts, Inc. v. Harden, 562 So. 2d 726, 728 (Fla. 5ch DCA 1990). This is true even when the limitation is expressed as a "maximum." Id. • Sections 1305 and 1306 of the Miami Zoning Ordinance provide that an application for a special permit may be denied only if, after conditions and safeguards have been considered, the application still fails to comply with applicable criteria. When conditions can make an application compliant with all applicable criteria, the City must approve the application subject to such conditions. §§ 1305-06, MZO. "[N]o such condition or safeguard shall establish special limitations and/or requirements beyond those reasonably necessary for the WHITE S. CASELLP Wachovia Financial Center, Miami, Florida 33131-2352 Tel+1 305371 2700 MIAMI 651667 v2 (2K) 9 accomplishment of the purpose for which the condition or safeguard is attached." 1306, MZO. • There is no merit to the Association's contention that it has been denied procedural due process. Procedural due process requires only notice and an opportunity to be heard, See Joshua v. City of Gainesville, 768 So. 2d 432, 438 (Fla. 2000) (emphasis added). The Association's failure to take full advantage of that opportunity does not mean it was denied due process. The Association, through counsel, appeared before the Zoning Board and was heard. It had ample opportunity to call any witnesses it wanted to call and to cross-examine the witnesses called by MDL. It elected not to do so, in an apparent attempt to "sandbag" MDL with surprise testimony before the City Commission. At no time during the December 13, 2004 hearing did the Zoning Board refuse to hear evidence offered by the Association or deny it the right to cross-examine witnesses. WHEREFORE, Appellee, MDL, respectfully requests that this Commission deny the Appeal, affirm the decision of the Zoning Board, and instruct the Planning Director to issue the Class II Special Permit. WHITE S CASE«a Wachovia Financial Cantor, Miami, Florida 33131-2352 Tel+13053712700 MIAMI 651667 v2 (2K) 1 0 Respectfully submitted, WHITE & CASE LLP Attorneys for Mou ingside Development, LLC 4900 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2352 Telephone: (305) 371-2700 Facsimile: (305) 358-5744 By: Douglas M. Halsey Florida Bar No. 288586 Evan M. Goldenberg Florida Bar No. 0087580 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. mail this ) 7 day of May, 2006, to: JoNel Newman, University of Miami School of Law Center for Ethics & Public Service, P.O. Box 248087, Coral Gables, FL 33124; and Donald J. Hayden, Baker & McKenzie, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131. WHITE & C A S E ua Wachovia Financial Center, Miami, Florida 33131-2352 Tel+ 1305 371 MOMIAMI 651667 v2 (21(} 1 1