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HomeMy WebLinkAboutAppellants' Reply BriefCITY COMMISSION OF THE- CASE NO. 2005-0001.4 CITY OF .MIAMI, FLORIDA 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. APPELLANTS' REPLY BRIEF The MORNINGSIDE CIVIC ASSOCIATION, INC., ROD ALONSO, ROB STEBBINS, SCOTT CRAWFORD and ELVIS CRUZ, by and through undersigned counsel, file this Reply Brief in response to the Memorandum filed by appellee. Appellants are in agreement with appellee's statement of the standard of review. They part company with the remainder of the appellee's argument and set forth a brief rebuttal below. First, appellee's statements that appellants never argued to the Zoning Board that the proposed projects failed to comply with the design review criteria expressed in § 1305 is simply incorrect. The original appeal to the Zoning Board states, "this building is out of scale, and in violation of Section 1305 of the zoning code." December 13, 2004 appeal letter, copy is attached hereto for ease of reference as Exhibit A. At the Zoning Board's original hearing on this matter appellants' attorney again stated, "this building is out -of -scale and in violation of Section 1305 of the City Zoning Code." Hearing Transcript, p. 3. These statements squarely raised the issue of compliance with Section 1305 on appeal. To suggest that there is some formal "noti.ce of appeal" requirement other than to put the parties on notice of the legal basis for the appeal, i.e., violation of Section 1305 of the Code, would impose a formalistic pleading rule on quasi-judicial proceedings that does not exist.' Appellants raised non-compliance with the criteria of 1305 in their appeal. That is sufficient. Second, appellees go to great lengths to try to discredit the appeal as presenting no evidence in support of the "mere argument" by counsel. This argument cleverly overlooks the undeniable fact that appellants' argument was The cases cited by appellees on this point, Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925 (Fla. 2005) and Ft. Lauderdale Bd of Adjustment v. Nash, 425 So.2d 578 (41' DCA 1983) deal with formal appellate court rules which are very specific about pleading requirements, and do not in any way address quasi-judicial proceedings before a local governmental body that has no rules of appellate procedure. Moreover, even if those standards applied appellants would satisfy it. Unlike the situation in Nash, for example, where "the argument that no violation existed was not made to the Board of Adjustment," here the argument that a violation of 1305 existed was clearly made to the Zoning Board, and therefore the matter has "properly been placed in issue in these proceedings." 425 So.2d at 579. 2 based on ample evidence from the existing Zoning .Board record.' That record clearly established that the projects did not conform to Section 1305 for the reasons p.reviousl.v stated before this Commission. The appellee's brief attacks the Zoning Ordinance as vague and uncertain, and argues that therefore it is entitled, as a matter of right, to build to the maximutn height permitted under the previous SD-9 overlay. These arguments are without merit. This Commission's own ordinances (which have not been declared void by any court and therefore must be enforced) provide ample evidence of appropriate scale, and that is lower than the height sought by this appellee. In addition, despite the appellee's protestations, it is perfectly appropriate to restrict the height of a project to make it compatible with the existing adjacent neighborhood. Las Olas Tower Company v. Cty of Ft. Lauderdale, 742 So.2d 308, 313-314 (4th DCA 1999). Appellee has missed an important aspect of the appellants' due process argument. When this matter was remanded by this Commission to the Zoning Board, it was clearly for the purpose of the Zoning Board fully considering the criteria expressed in 1305 and making written findings based on its full 2 The cases cited by appellees, National Advertising Co. v. Broward County, 491 So.2d 1262 (4th DCA 1986); Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614 (4th DCA 2000); and DiSarrio v. Mills, 711 So.2d 1355 (2nd DCA 1998) all simply hold that argument of counsel, without any evidence in support of the argument, does not provide a basis for appellate review. Here, the argument merely points to the ample evidence in the existing record, as is the purpose of argument by counsel. 3 consideration of those criteria. Rather than revisiting its decision, the Zonin(2 Board followed the advice of its counsel that it had no power to reconsider ("rehear") the case but rather in- rst find in favor of appellee. This is a complete derogation of the duty of the tribunal to actually hear the matter before it, and it deprived appellants of their due process right to a full and fair hearing.Florida courts are ery clear that the power and duty to rehear a matter belongs to the administrative or quasi-judicial agency if the proceeding is a judicial one. "As a general rule, an agency has inherent or implied power to rehear or reopen a cause to reconsider the action taken therein, where the proceeding is in essence a judicial one." Aetna Health, Inc. v. 2lst Century Oncology, Inc., 919 So.2d 619, 620 (1st DCA 2006) quoting Reich V. Dep't of Health, 868 So.2d 1275, 1276 (Fla. l st DCA 2004). The Zoning Board abrogated this duty in refusing to even consider appellants' arguments, depriving appellants of due process. Appellee's argument that this Commission has no authority to consider the merits of the case before it is similarly unavailing. First, under the contorted standard on remand advanced by the appellee, the Commission would — at least ostensibly — be constrained like the Zoning Board to its original decision and thus it would have to grant the appeal. Second, the Zoning Ordinance itself clearly vests the Commission, on appeal, with the "full power to affirm, reverse, 3 Jennings v. Dade County, 589 So.2d 1337 (3rd DCA 1991); Metropolitan Dade County v. Sokolowski, 439 So.2d 932 (3rd DCA 1983). 4 or modify the action of the zoning board." Zoning Ordinance § 2004. This is not empty languaigw. This Commission has both the power and the obligation to fully review the Zoning Board's decision and to reverse or modify it where necessary. For the foregoing reasons, and those stated in appellantsinitial brief, the appeal should be granted. Respectfully Submitted, (.7 Jo4el Newman Florida Bar No. 0112320 University of Miami School of Law Center for Ethics & Public Service P.O. Box 248087 Coral Gables, FL 33124 (305) 284-4125 (305) 284-1588 (fax) jnewman@law.miami. edu Donald J. Hayden Baker & McKenzie 1111Brickell Avenue, Suite 1700 Miami, FL 33131 CERTIFICATE OF SERVICE 1 hereby certify that a true and correct copy of the foregoing was served by US mail this �'' day of d �`�.��:�.. e , 2006, to: Douglas M. Halsey Evan M. Goldenberg White & Case, LLP 5 Wachovia Financial Center. Suite 4900 200 S. Biscayne Blvd. Miami, EL 33131. Rafael Suarez -Rivas Assistant City Attorney City of Miami 444 S. W. 2" Avenue, Suite 945 Miami, FL 33130 Bv: loNel Newman Florida Bar No. 0112320 6 1r ANDREW W.J. DICKMAN Attorney at Law Law .Offices of ANDREW DICKMAN, t'.1 . 91 1 1 Park Dr Miami Shores, FL 33 i 38 December 13, 2004 T421: 305.758.3621 x: 305.758_0508 andrewciickmal@beliso thstet VIA HAND DELIVERY Zoning Board CITY OF MIAMI 3500 Pan American Ave Miami Florida 33134 Re: Notice_of Appeal of the Decision by the Director of the Planning and Zoning Department ("Decision") approving a Class II special permit (#2004-198) at 5301-5501 Biscayne Boulevard rendered October 27, 2004. Dear Board Members: This firm represents the Morningside Civic Association, Inc,,` including four individual residents in Morningside, Rod Alonso, Ron Stebbins, Scott Crawford, and Elvis Cruz (the "Appellants"), all of whom own homes and reside in near the above referenced project. We feel this building is out of scale, and in violation of Section 1305 of the zoning code. The proper scale for this location, next to the single family homes and the Morningside historic district, should be no higher than 35 feet. On November 18, when we appealed the permits for very similar buildings, also up against the single family homes of Morningside at 51st and 52nd Biscayne, Commissioner Winton declared, quote: "I think and feel strongly that any development on Biscayne Boulevard, any development, from yesterday and day before yesterday and today and tomorrow on, any of it, has to meet our new SD-9 code. Period. Any of it." "And so my motion is going to be to uphold the appeal and send this back wherever it needs to go and these projects need to be redesigned so that the back step 25, 40 degree angle, whatever the rules are, applies to these projects. That's my motion." "We need to apply the strictest standards." Unquote. City of Miami Zoning Board December 13, 2004 Page 2 This project does not comply with the new SD-9. The case law is clear on the applicability of zoning in progress; it does indeed apply. Please approve our appeal. Thank you. Very truiy y rs, nd e Dickman, AICP, Esq.