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HomeMy WebLinkAboutSubmittal LetterBRIEF OF MORNINGSIDE DEVELOPMENT, LLC January 26, 2006 • 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. 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. It does not authorize a second de novo hearing before the Zoning Board. • When an appellate court issues a mandate, compliance therewith is a purely ministerial act and new evidence affecting the cause may not be considered without the consent of the appellate court. Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So. 2d 232 (Fla. 3d DCA 1979); Huffman v. Moore, 834 So. 2d 300, 301 (Fla. 1st DCA 2002) ("The [lower tribunal] does not have the authority to modify, nullify or evade that mandate"). An appellate court order for "further proceedings" does not give the lower tribunal carte blanche to take action inconsistent with the findings and conclusions of the appellate court. See In re: Chakmakis, 116 So. 2d 256 (Fla. 3d DCA 1959); City of Palm Bay v. State, Dep't of Transportation, 588 So. 2d 624 (Fla. 1st DCA 1991). • In the absence of defects in the conduct of the hearing below, it is improper to order a new hearing. Wolford v. Boone, So. 2d , 2005 WL 3234904 (Fla. 5th DCA Dec. 2, 2005); Broward County v. Coe, 376 So. 2d 1222 (Fla. 4th DCA 1979). There were no defects in the hearing before the Zoning Board. Because the Court has ordered that the Commission's review of the Zoning Board's decision is limited to the record of the December 13, 2004 Zoning Board hearing, the City Commission lacks the authority to order a new hearing before the Zoning Board. • The sole responsibility of the City Commission is to determine if: (1) there was competent, substantial evidence before the Zoning Board to support its decision; and (2) whether the Zoning Board applied the correct law. Smith et al v. Board of County Comm'rs of Putnam County, Fla., Case No. 00-241- CA-53, 8 Fla. L. Weekly Supp. 809a (Fla. 7th Jud. Cir. April 18, 2001); Ziegler v. Miami -Dade County, Case Nos. 99-165 AP, 99-361 AP, 8 Fla. L. Weekly Supp. 344a (Fla. 11th Jud. Cir. March 20, 2001). Submitted Into the public record in connection with 2.34 on l-�`0� Priscilla A. Thom(p�son UTAMI 6 6327497 13 vl [632 City Clerl4 MIAMI vl [632749_1.DOC] • The burden is on the Morningside Civic Association and the individual appellants to show, by competent substantial evidence, that the proposed Class II Special Permit (special exception) does not meet the Code's criteria. Dusseau v. Metropolitan Dade County Bd. Of County Comm'rs, 794 So. 2d 1270, 1273 (Fla. 2001); Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1091-92 (Fla. 2000); see also Metropolitan Dade County v. Fuller, 515 So. 2d 1312 (Fla. 3d DCA 1987). • The issue 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. Contrary evidence is irrelevant to the lawfulness of the Zoning Board decision. See id. • There is a wealth of competent, substantial evidence in the record to support the Zoning Board's decision: (1) the Planning Director, with the advice of the City's professional staff, determined that the project complied with all applicable Code provisions and granted the Class II Special Permit; (2) Morningside and its architect presented testimony to the Zoning Board that the project complied with all applicable Code provisions; (3) the appellants offered no evidence that any aspect of the project was inconsistent with any Code provision; and (4) the Zoning Board, comprised of persons selected by the City Commission for their qualifications, background and experience, voted 7-1 to deny the appeal. • The Planning Director's decision to issue the class II Special Permit, and the staff recommendation of denial of the appeal, constitutes substantial competent evidence as a matter of law. See, e.g., Metropolitan Dade County 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. 11th Jud. Cir. Dec. 7, 2004); Tesaurus Holdings, Inc. v. Village of Key Biscayne Council, 7 Fla. L. Weekly Supp. 320a (Fla. 11th Jud. Cir. February 29, 2000); Bal Harbour, Inc. v. Bal Harbour Village Council, 5 Fla. L. Weekly Supp. 802 (Fla. 11th 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., 1/25/2006 7:13 PM (2K) MIAMI 632749 vl [632749_1.DOC] Submitted Into the public record in connection with item ?Z.311 on 1-_ph Priscilla A. Thompson 2 City Clerk 771 So. 2d 614 (Fla. 4th DCA 2000); DiSarrio v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998). • 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 Morningside 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 Morningside Development 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 terms by undefined and uncertain notions of "scale" and "character of the neighborhood." Colonial Apartments, L.P. v. City of DeLand, 577 So. 2d 593 (Fla. 5th DCA 1991); Life Concepts, Inc. v. Harden, 562 So. 2d 726, 728 (Fla. 5th 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, Miami Zoning Ord. "[N]o such condition or safeguard shall establish special limitations and/or requirements beyond those reasonably necessary for the accomplishment of the purpose for which the condition or safeguard is attached." § 1306, Miami Zoning Ord. SUBMITTED INTO THE PUBLIC RECORD FOR 1/25/2006 7:13 PM (2K) MIAMI 632749 vl [632749_I.DOC]