HomeMy WebLinkAboutAppeal 5CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA
ROD ALONSO,
Petitioner,
vs.
CITY OF MIAMI ZONING BOARD,
PROPERTIES LOCATED AT 5301 &
5501 BISCAYNE BOULEVARD,
Respondents.
RE: APPEAL OF CLASS II SPECIAL PERMIT
APPLICATION
FILE NO.: 04-0198
5301 & 5501 Biscayne Blvd
SUBMITTED INTO THE
PUBLIC RECORD FOR
ITEM Pz / ON 3 10 OE
MOTION OF ROD ALONSO TO VACATE AND REMAND WITH INSTRUCTIONS
CITY OF MIAMI ZONING BOARD DECISIONS APPROVING CERTAIN PROJECTS
AT 5301 AND 5501 BISCAYNE BOULEVARD
Petitioner Rod Alonso, by and through undersigned counsel, respectfully requests that
this Commission vacate and remand with instructions: 1) the October 27, 2004 decision of the
City of Miami Zoning Board to approve with conditions a Class II Special Permit for the
construction of two multi -story residential developments at 5301 and 5501 Biscayne Boulevard,
and 2) the December 13, 2004 decision of the Zoning Board denying petitioner's appeal of the
permit. In support of this Motion, petitioner states:
1. This is the second time in less than six months that this Commission's intervention has
been required to enforce its own zoning ordinances, specifically the SD-9 special district
designation, Zoning Ordinance § 609, and two amendments thereto passed by this Commission
on April 29, 2004 and July 22, 2004.
2. Those two amendments established very clear height and angle limitations and setback
requirements crucial to the preservation of the historic low density single family neighborhoods
(R-1 and R-2) that abut the northern Biscayne corridor.
3. The first amendment to SD-9, enacted by this Commission on April 29, 2004,
established the following additional limitations on development relevant to this appeal:
Sec. 609.8.1. Height Limitations
Garage height:
40 feet Maximum. Garages are intended to be located at the back of the lot, away from
public view at the boulevard. Heights of parking structures and garages may not exceed
40 feet, measured from grade.
Building Height:
Residential and mixed use structures containing a residential component: 95 feet (8
floors) maximum.
Sec. 609.8.2. Building Envelope Limitations.
* * *
B. Building Envelope requirements From 40 Feet Above Grade To Maximum
Building Height.
* * *
Rear Property Line Setback: Minimum of 20 feet above a height of 40 feet from grade,
and also subject to the requirements of Section 907.3.2 (which requires an additional
setback of one foot in the horizontal for two additional feet in the vertical dimension) [an
angle, or slope, of approximately 60 degrees].
3. At its April 29th meeting the Commission also considered and acted on the
recommendation of its Planning and Zoning staff that it file for the Planning Advisory Board's
consideration "an immediate amendment to consider the following (more restrictive)
amendments [to SD-9]:"
a) For SD-9 properties which abut an R-1 or R-2 District, institute a 25 foot height limit
at the rear of the property (instead of the 40 proposed) from which buildings have to be
located under a 45 degree angle height from that line.
SD-9 Biscayne Boulevard North Overlay District Final Report and Recommendations to City
2 Submitted Into the public
record in connection with
item 'Pz • I on 3- Io - os
Priscilla A. Thompson
City Clerk
Commission for Special meeting of April 29, 2004, p. 2 (emphasis supplied). Copy attached as
Exhibit A.
4. On July 22, 2004, upon the recommendation of the Planning Advisory Board, the
Commission passed, on first reading, the following additional building envelope limitation:
1. Rear envelopes where abutting other districts.
Where properties within the SD-9 District abut R-1 or R-2 zoning districts, such
properties shall have a maximum height limitation of 25 feet at the rear setback
point (or whatever property line abuts the R-1 or R-02 zoning district) from which
no building height shall be allowed above a 45 degree angle line; such line shall
commence at the 25 foot height and slope in a direction towards Biscayne
Boulevard.
Zoning Ordinance § 609.8.2, as amended 7-22-04.
5. In complete defiance of these clear and straightforward requirements, the developer
has submitted, and the Zoning Board has approved over petitioner's objection and appeal, two 8
story, 95 foot residential towers with the following violations of the SD-9 amendments:
a) the planned garage height (the rear area), of the development at 5501 Biscayne
Boulevard is 40 feet, in violation of the maximum of 25 feet required by the July 22, 2004
amendments to SD-9.
b) the planned angle, or slope toward Biscayne Boulevard, from the rear of 5501
Biscayne Boulevard is approximately 60 degrees, and begins at 40 feet, not the 45 degree angle
from 25 feet required by the July 22 amendment;
c) the planned garage height (the rear area) of the development at 5301 Biscayne
Boulevard is 45 feet, in violation of the maximum of 25 feet required by the July 22, 2004
amendments to SD-9.
Submitted Into the public
record in connection with
item 17Z • 1 on 3 - I o - Ds
Priscilla A. Thompson
City Clerk
d) the planned angle, or slope toward Biscayne Boulevard, from the rear of 5301
Biscayne is approximately 60 degrees, and begins at 45 feet, not the 45 degree angle from 25 feet
required by the July 22 amendment;
e) moreover, the 45 foot garage height of the development at 5301 Biscayne Boulevard
exceeds even the 40 foot maximum established by the April 29, 2004 amendment to SD-9; and
f) because the proposed garage height exceeds 40 feet at 5301 Biscayne Boulevard, the
rear setback requirement is 20 feet from the property line. The proposal has only a five foot
setback.
6. The record clearly shows that the April and July 2004 amendments to SD-9 should be
applied to these proposals. On June 16, 2004, the City returned to the developer its incomplete
application which had been submitted on May 14, 2004. The reason for the return was that the
application was incomplete, and had been accepted in violation of a moratorium on development
pending the planned changes in SD-9 zoning that had been enacted by the Commission on April
8. Copy of June 16`h letter returning application attached hereto as Exhibit B. Thus, as of June
16th, 2004 no application existed, and any new application would have to comply with all
currently applicable zoning laws.
7. There was ample public notice regarding the amendments to SD-9. The changes
enacted April 29, 2004 were first heard by the Planning Advisory Board on February 4, 2004,
and were considered by the City Commission on February 26 and again on April 29. In the
interim, a Committee put together by the City Commission met to consider and advise the
Commission on these matters. As set forth above, at the April 29 Commission hearing, calls for
immediate more restrictive height and slope amendments were also considered at that hearing,
4
Submitted Into the public
record in connection with
item Pz.I on 3•/0-b5
Priscilla A. Thompson
City Clerk
and were later passed on first reading by this Commission in July.
8. Not only was there ample public notice about the anticipated changes to SD-9, but
throughout the application process, respondents were repeatedly and specifically advised and
placed on notice that the zoning law with respect to the 5301 and 5501 Biscayne Boulevard
properties was changing, and especially that height and setback requirements were being
adjusted. On April 30, 2004, the first date the project was considered, the developer was advised
in writing that the project would be considered, "For design review only. Height restrictions may
apply per moratorium and/or new height ordinance." Copy attached as Exhibit C.
8. On June 8, 2004, the staff of the Planning and Zoning Department completed a "Pre -
Application Review" of the project. The staff notified the developer that:
The mass of both buildings is out of scale with the existing context of single family
homes to the east of the site. The City has developed new height regulations for the SC-9
zoning district, which have been adopted by the City of Miami Commission. The
building's height should be compatible with the new height requirements, which specify a
maximum height of 95' and 8 stories for mixed -use residential buildings.
Copy attached as Exhibit D.
9. On June 16, 2004 respondents were notified that:
the application as filed on 4/30/04 was not a complete application and not valid (per the
zoning administrator) in that it did not comply with zoning regulations [because it
depicted development on an adjacent R-1 parcel] and after 5/10/04 no new applications
were to be accepted.
Exh. B. Therefore, all application materials were returned to the developer with an
admonishment that, "You may file an amended application that complies with the requirements
of the moratorium only." Exh. B.
10. Sometime thereafter, the developers submitted another application for development
5
Submitted Into the public
record in connection with
item Pz• 1 on3-(o-05
Priscilla A. Thompson
City Clerk
of the properties, which was approved by the Planning and Zoning Department on October 27,
2004. While the proposals appear to conform to the 95', 8 story height limit, they do not comply
with other important aspects of the 2004 SD-9 amendments, as described at para. 5, above.
11. The Zoning Board's refusal to apply the SD-9 amendments to these projects ignores
the clear precedent of this Commission as well as other relevant law. Just last November, this
Commission remanded two other property proposals which had been submitted by this very same
developer prior to the proposal at issue here because the developer and the Zoning Board had
failed to comply with the SD-9 amendments. November 18, 2004 Commission hearing on Class
II Special Permit Applications 03-0308 and 03-0309. The same principle should apply to this
proposal.
12. Indeed, there is ample precedent throughout Florida for applying "zoning in
progress" to projects even if the applications were completed and submitted well before the
zoning laws changed. See, e.g., Gardens Country Club, Inc. v. Palm Beach County, 712 So.2d
398 (4th DCA 1998); Smith v. City of Clearwater, 383 So.2d 681 (2"a DCA 1980), rev. denied,
403 So.2d 405 (Fla. 1981); City of Boynton Beach v. Carroll, 272 So.2d 171 (4`h DCA 1973).
Here, the argument for application of the now -existing zoning law is even more compelling.
WHEREFORE, petitioner Alonso respectfully requests that this Commission vacate the
erroneous approval of the Class II Special Permit for developments at 5301 and 5501 Biscayne
Boulevard, and remand the matter for consideration under the SD-9, as amended on April 29,
2004 and July 22, 2004.
Respectfully submitted,
JoNel Newman, Esq.
6
Submitted Into the public
record in connection with
item PZ-I on 3-10-o5"
Priscilla A. Thompson
City Clerk
By:
Florida Bar No. 112320
615 N.E. 55th Terrace
Miami, FL 33137
Telephone No. (305) 573-0092
Facsimile No. (305) 576-9664
Attorney fo Rod Alonso
JoNe ewman, Esq.
Florida Bar No. 112320
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was hand delivered to all counsel and/or
parties of record on March 10, 2005
By:
o Newman, Esq.
F 'da Bar No. 112320
7
Submitted Into the public
record in connection with
item P2. 1on - /o• os-
Priscilla A. Thompson
City Clerk
SD-9 Biscayne Boulevard North Overlay District
Final Report And Recommendations to City Commission
for Special Meeting of April 29, 2004
RECOMMENDATION:
Based on the report below, the Planning and Zoning Department respectfully
recommends the following course of action to the City Commission:
. Proceed with adoption (on second reading) of the new SD-9 Ordinance that
mandates height limits of 85 and 95 feet (as written), with the following (more
liberal) changes to be made on the floor at second reading:
a) increase the allowable height to 120' for the two areas located along the
west side of Biscayne Boulevard as described in the report below (i.e. the
mega -block located on the west side of Biscayne Boulevard from NE 39th
Street up to a line which runs in a westerly direction from the southerly
right-of-way line of NE 50th Terrace, as extended to the west; and the 79th
Street area, located along the west side of the Boulevard from 79th Street
in a northerly direction to the city limits.
b) allow properties with an SD-9 designation that are over 150 feet in depth
(as measured from Biscayne Boulevard) a maximum height of 120 feet,
even if they are adjacent to R-1 or R-2 zoning, only if such depth is
sufficient to provide a maximum height of 25 feet at the rear of the
property with a 45 degree angle height limitation (from a height of 25 feet
at the rear and sloping towards Biscayne Boulevard - see sketch).
Submitted Into the public'
record in connection with
item P2. I on _a -To- os-
Priscilla A. Thompson
City Clerk
&
2. File for Planning Advisory Board consideration, an immediate amendment to
consider the following (more restrictive) amendments:
a) For SD-9 properties which abut an R-1 or R-2 District, institute a 25 foot
height limit at the rear of the property (instead of the 40 proposed) from
which buildings have to be located under a 45 degree angle height from
that line. (See sketch); this will specifically reference that Biscayne
Boulevard shall be considered the front.
b) For SD-9 properties which abut R-3 or more liberal districts, amend the
rear height limitation so that buildings have to located under a 45 degree
angle height as taken from the 40 foot height limit at the rear (instead of
the current approximately 60 degree requirement); this will also
specifically reference that Biscayne Boulevard shall be considered the
front. (See sketch).
c) Amend parking requirements to institute parking reductions for adaptive
reuse of existing structures and for restaurant and retail uses within mixed
use structures.
3. Instruct the Planning and Zoning Department to work with a consultant to write a
voluntary 1DR Ordinance for the area as a pilot project with a six month period in
which to come back to the City Commission with either an ordinance or a report.
Background
• The Committee met for the first time on March 24, 2004. General discussion
about mission and parameters for making recommendations to the Planning
Director were discussed. Presentations on issues involving Private Property rights
Act and Transfer of Development Rights (TDRs) were set up for the following
meeting.
Submitted Into the public
record in connection with
item r2.) on 3 - 10-as
Priscilla A. Thompson
City Clerk
2
• The Committee next met on March 30, 2004. The Committee listened to the
presentations that were made and selected those portions of the Boulevard that
should be looked at more closely for consideration of a 40 foot height limit with
TDRs. It was agreed that higher limits were appropriate for certain segments.
These segments were: the "mega -block" — i.e. west side of Biscayne Boulevard
from approximately NE 39th Street to approximately NE 50th Street; and the west
side of Biscayne Boulevard from the 79' Street Biscayne Shopping Center area
north. The blocks identified as being candidates for lower heights were referred
to an architectural subcommittee for more specific review and recommendations.
• The architectural sub -committee met on April 6, 2004. A quick study was done
of the block segments which were selected as the blocks to be protected because
of their proximity to "R-1" and "R-2" zoning classifications (which carry with
them a 25 foot height restriction).
• It was determined that if a 40 foot height limit was placed on these blocks, the
resulting FAR which would have to be made eligible for transfers under a
Transfer of Development Rights (TDR) Ordinance could be approximately 1
million square feet or more. It was also found that the 40 foot height limit
recommended was not as workable as 50 feet in order to accommodate required
parking.
• It was found that the approximately 1 million square feet of transferred
development rights would no be able to be accommodated solely on Biscayne
Boulevard without seriously impacting the lower density envisioned for the
Boulevard by the Biscayne Corridor study. With other height limitations as
maximums, there may be insufficient ability to use the 1 million square feet and
this could jeopardize the ability of the TDR to be effective.
• It was found that certain segments of the remaining blocks (not abutting "R-1" or
"R-2" zoning — and located in areas of the Boulevard where the character was
more intense) should be allowed additional height (beyond the suggested 85'-
95'). These segments were: the "mega -block" — i.e. west side of Biscayne
Boulevard from approximately NE 39th Street to approximately NE 50th Street;
Submitted Into the public
record in connection with
item ?.1 on 3- io • os
Priscilla A. Thompson
City Clerk
and the west side of Biscayne Boulevard from the 79th Street Biscayne Shopping
Center area north. The proposed height was 120 feet.
It was found that rather than the 40 foot height limit at the rear of the properties,
with the required step -back toward the boulevard; a 25 foot height limit with a
required 45 degree step back would better protect the light and air flow to the
abutting residential properties and neighborhoods.
The following alternatives were discussed as recommendations to consider; they
are ranked in order:
1. Proceed with the new SD-9 Ordinance that mandates height limits of 85
and 95 feet (as written), with the following changes: 1) increase the height
to 120' for the two areas described above (the mega -block and the 79th
Street area); and 2) institute a 25 foot height limit at the rear property line
(instead of the 40 proposed) from which buildings have to be located
under a 45 degree height from that line. (See sketch).
o Enact a TDR Ordinance that limits the height of the "protected" blocks to
50 feet (5 stories), with an 85'-95' height limit for the rest of the
Boulevard — except the mega -block and the 79th Street segment described
above, which should be allowed 120 feet in height — and then allow 17_)R's
onto the 85'-95' segments (recipients) up to a maximum height of 120
feet. This option includes the 25 foot height limit at the rears with the 45
degree angle height limit.
• A third option was placed on the table for discussion which was essentially the
TDR option described above, however, recommends that the rest of the city be
included as "recipients" of the projected TDRs. This option is not being
presented for official consideration yet since it involves other Commission
districts and has not yet been fully studied for impact.
• The final meetings were used to discuss all of these options.
Submitted Into the public
record in connection with 4
item rz- I on 3-1a-
Priscilla A. Thompson
City Clerk
CITY OF M[A - DEPAITMENT OP PLANNING AND ZONING - URBAN DESIGN DIVISION
REAR HEIGHT LIMITATIONS
ILLUSTRATIVE CROSS SECTIONS - 4/19/2004
100 FEET DEPTH
1S0 FEET DEPTH
SETBACKS AND HEIGHT LIMITATION FOR REAR OF BUILDINGS
63 ' AND 10 FEET SETBACKS
EXISTING REGULATIONS
{
1
i
I�
II
1
I
...
1 \
I
{
Y
I 1 I
1.
l
I
to'(
�--ii0
1
•
tom
ISO'
45 ° AND 10 FEET SETBACKS
cc
c7
z
ce
Z
F
O
o
7\
1
1
I
s
�r ILr
15O .—tea--,
45 ° AND HEIGHT REDUCTION IN REAR
PROPOSAL FOR ABUTTING R.1 AND R.2
ttncolnnnecei
Srecorubmid
�n t
�., item°
prisa A. Th
cpll
\I
i
r�q
ISLr ,�
COO`:
C� LE IDENSIAIJOFPICE 0RETAIL 0 CIRCULATION
o VEHKDLAtcIGULAT1oN
MILKING
LING
public
n with
ompson
City Clerk
ANA GELABERT-SANCHEZ
Director
June 16, 2004
Lucia Dougherty
Greenberg Traurig et al
1221 Brickell Avenue
Miami Fl. 33131
Re: Class II Application 2004-0198 — 5301-5501 Biscayne Boulevard
Dear Ms. Dougherty:
JOE ARRIOLA
City Manager
The above referenced Class II Special Permit application is hereby being returned to you
in that it was accepted in error. This application was initially referred to the Planning Section by
Zoning on 4/30/04 for "Design review only" with the additional comment by zoning that "height
restrictions may apply per moratorium and/or new height ordinance" (see attached referral sheet).
The City Commission adopted the subject moratorium on 4/8/04. Subsequent to this date, the
application was returned to zoning for additional review in that the application depicted
development on an adjacent R-1 parcel and therefore was not properly filed for a Class II Permit.
On 5/8/04, the zoning administrator concurred and issued an interpretation that the application
was to be denied and referred back to zoning for this issue to be corrected (see attached). On
5/10/04, the moratorium went into effect not allowing applications for new buildings within SD-9
on Biscayne Boulevard to be accepted that did not comply with the requirements of the
moratorium. On 5/14/04 revised plans were submitted for zoning review and then referred back
to planning for the Class II Permit; this is the application that was then accepted in error in that
the moratorium was now in effect. The application as filed on 4/30/04 was not a complete
application and not valid (per the zoning administrator) in that it did not comply with zoning
regulations and after 5/10/04 no new applications were to be accepted.
Please find all application materials for this Class II Special Permit attached hereto. You
may file an amended application that complies with the requirements of the moratorium only. A
refund check in the amount of $7,948.00 has been requested and will be sent to you when
processed. If you have any further questions regarding this matter, please contact me at 305-416-
1408.
Since
Robe Lavernia, Chi
Land elopment
Cc:
Ana Gelabert-Sanchez, Director
Lourdes Slazyk, Assistant Director
Javier Carbonell, Acting Zoning Administrator
Submitted Into the public"
record in connection with
item PZ • I on 3- Ja t s
Priscilla A. Thompson
City Clerk
DEPARTMENT OF PLANNING & ZONING
444 5.W. 2nd Avenue, 3rd Floor / Miami, Florida 33130 / (305) 416-1400 / Telecopier: (305) 416-2156
Mailing Address: P.O. Box 33070E Miami, Florida 33233-070
CLASS,LLSPEcIAL .MIT
NO.
CLASS II SPECIAL PERMIT
ZONING REFERRAL
COMPLE 1 hD BY APPLICANT
OWNER
Morning Side Development, LLC
OWNER PHONE NUMBER
305-372-1383
APPLICANT APPLICANT PHONE NUMBER / FAX NUMBER
Lucia A. Dougherty c/o Greenberg Traurig (305) 579-0603 (305) 961-5603
APPLICANT ADDRESS
1221 Brickell Avenue, Miami, Florida
/ZIP CODE
33131
BUILDING PLAN APPLICATION NUMBER
COMPLETED BY ZONING PLANS EXAMINER
s c) I
PROJECT
P RO
NET
A
APP
USE
URE OF APP
Pursuant to
Permit. P
PROJECT ADD ESS (ZIP CODE
ZONING ESGNATION ATLAS SHEET
CATION
ECTION OF ZONING ORDINANCE
fee schedule, a fee of $
ifees are non-refundable.
PROPERTY OWNER
Lucia A. Dougherty, as Attorney
CE
shall be required prior to th /rview and issuance ofthi
4.? Lava M. Lucas
•MyC.oX,20ii32UBLI
Eire. Sventef 24. 2C05
C NOTARY
11 Special
The subject propo een rev ved by Zoning Division of the Planning & Zoning Department. It is found to be in
compliance all applicable zong regulations and requires a Class II Special Permit pursuant to the above cited section(s)
of Ordi nce 11000, as amend , the Zoning Ordinance of the City of Miami, Florida.
ZONING P
CLASS El COOR INAT
pR
DAT
DATE
A building permit for the work proposed herein and:or a certificate of occupancy and/or certificate of use for the use proposed
herein, must be obtained within one (1) yeastailtitsumice of this special peanit, at which point the special pen -nit shall
expire, unless extended. ea Into tne puaiic
record in connection with
item Z. on .3 - o-oir
Priscilla A. Thompson
City Clerk
I T Y 0 F M I A
PLANNING AND ZONING DEPARTMENT
PRE -APPLICATION DESIGN REVIEW COMMENTS
CLASS II SPECIAL PERMIT
5301-5501 BISCAYNE BLVD.
NEW CONSTRUCTION
6-8-2004
The following comments represent the unified vision of the Pre -Application Design Review Committee, which
consist of all staff members in the Urban Design and Land Development Divisions.
COMMENTS:
The following comments are being made in an effort to develop projects to their highest potential and make a
significant contribution to improving the quality of our built environment with great architecture and urban
design.
Urban Design
+ The mass of both buildings is out of scale with the existing context of single family homes to the east
of the site. The City has developed new height regulations for the SD-9 zoning district, which have
been adopted by the City of Miami commission. The building's height should be compatible with the
new height requirements, which specify a maximum height of 95' and 8 stories for mixed -use and
residential buildings.
• Liner program with a minimum of 15' of useable active habitable space shall be provided for the
entire Biscayne Boulevard frontage in order to conceal the parking garage from public view. Modify
the garage plan to incorporate residential liner program along all levels of the garage on Biscayne
Boulevard. This will create a more active and attractive facade, and provide eyes on the street.
Consider applying under the newly adopted SD-9 zoning ordinance, which relaxes setback and
building footprint requirements, and this may allow a building doorplate which could incorporate the
liner program on Biscayne Boulevard.
• Consider providing stacked loading in the 55'' Street project, similar to the proposed solution for the
53'd St. building, in order to reduce the width of the curb cut and garage opening on NE 55d' Terrace,
and locate the loading area further away from the corner.
• Provide elevation and perspective drawings showing the two proposed buildings along with the
architect's proposed buildings for 5101 and 5225 Biscayne Boulevard, in order for the committee to
review the overall effect on this area. It is important that each building have a unique architectural
appearance, so that they do not appear too repetitive.
• Consider designing a plaza space on NE 55th St. between the two buildings, as was contemplated for
streets in this area of Biscayne Boulevard during the FEC charette. See images on the following page
which illustrate this concept.
Zoning Clarification
Confirm with the Zoning Department regarding the proposed buildings' height and setback requirements and
compliance with ordinance number 907.3.2, as the properties abut against the R-1 zoning district on the east.
Submitted Into the public
record in connection with
item f'Z. 1 on a - to- OS
Priscilla A. Thompson
City Clerk
It is our intention with these comments to aid in expediting Special Permit applications with your
voluntary efforts in making the necessary changes; thereby, avoiding any preventable delays
particularly prior to a project's submission to the Large Scale Development Committee or the
Urban Development Review Board.
1