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HomeMy WebLinkAboutAmended ZB Appeal LetterOctavio Robles 2210 Lincoln Ave. Miami, FL 33133 June 13, 2006 AMENDED APPEAL TO CITY COMMISSION! Teresita L. Fernandez Executive Secretary Department of Hearing Boards City of Miami 444 SW 2nd Ave. 7th Fl Miami, FL 33130 RE: Process Nos: 050007624 and 050007629 with proposed Respective addresses of 2210 Lincoln Ave. and 3121 Freeman St. Appeal of Zoning Administrator's decision to the City Commission after being forced to originally appeal this matter to the Zoning Board by the City's Office of Hearing Boards as provided by the Zoning Code even though the Zoning Board lacked Jurisdiction and request that the City Commission strike Section 2105.4.1.(a) of the Code because it is 15 years old and the permitting requirements and sorrounding circumstances have drastically changed from when the code was drafted and therefore It's inequitable to enforce. This is an appeal of the Zoning Administrator's interpretation and decision regarding the existing Zoning Code/Ordinance as it pertains to a provision contained in Section 2105.4, Subsection .1.(a) which provides that any application for permit with process numbers must complete the permit process within 180 days after Ordinance 11000 has been amended where the application for development permits was submitted and therefore the process numbers were obtained before the effective date of the Amendment otherwise, the application for development permits must abide by the changes contained in the amendment. Article 18 of the Zoning Code provides that : " Appeals to the Zoning Board may be taken by any person aggrieved or...affected by: (1) Any decision of the Zoning Administrator..." At issue, is the equitability and therefore the enfoceability of Article 21, Section 2105.4.1. (a) , This issue, together with other design issues was presented by letter dated and hand delivered on October 1, 2005 to the Zoning Administrator pursuant to Section 2101 of the Zoning Code which provides that the Zoning Administrator "shall be responsible for administration and enforcement of this Zoning Ordinance..." The zoning Administrator responded by letter dated November 8, 2005 (five and a half weeks later) by effectively repeating the entire contents of Section 2105.4.1.(a) and (b). (see attached), It is important to note that this case involves a provision of the Zoning Code which is enforced by the Zoning Administrator and where said provision regulates the issuance of a Building Permit which is usually the responsibility of the Building Official. This Appeal was originally presented in a timely manner to the City's Hearing Boards Department. Hearing Boards automatically placed the item for review before the City's Zoning Board and indicated that all appeals from the Zoning Administrator had to go to the Zoning Board first. Hearing Boards ignored the jurisdictional issue that would prevent the Zoning Board to review this appeal. The issue finally went before the Zoning Board on February 13, 2006 and was appropriately dismissed for lack of Jurisdiction. Now the Appellant brings the issue to the City Commission. Supporting argument The Subject applications for permits were submitted for plan processing with completed plans prior to the effective date of the amendment of ordinance No. 11000 by the adoption and implementation of the NCD-3 zoning overlay. The requirements of Section 2105.4.1.(a), providing for a 180 day period wherein plans submitted prior to the amendment of Zoning Ordinance 11000 had to be permitted was adopted in 1991. This provision of the zoning code may have been originated 15 years ago in good concience and may have been equitable then but in today's climate of hyper development, product controls, a new building code and all the processing complications that did not exist in 1991, it would be absurd to implement such an arbitrary and capricious provision and the city would not be acting in good faith if it enforced it. In fact, various City officials, including the Zoning Administrator and City Manager indicated to appellant that the City does not enforce this provision of the code. After subsequent investigations, it has become apparent to the appellant that this may be in fact true. Many changes to the code have taken place since it was adopted and the provision at issue, based on the limited research conducted so far by the appellant, has not been enforced. Any arbitrary and inconsistent enforcement raises a constitutional equal protection issue. The complications and resulting delays in plan processing outlined above were further exacerbated by the fact that during the 180 period during which the subject plans were going through the permit process, the city was hit by two hurricanes, Katrina and Wilma and had a near miss, Rita, all of which closed the building bepartment down for different periods of time. The way that Section 2105.4.1.(a) is drafted, there is nothing that a building permit applicant can do to make sure that he can abide by the 180 day requirement. An applicant is effectively at the complete mercy of the city to process the plans within the 180 days, regardless of any factors beyond the applicant's control like shortages of plan processors, reservation of easement dedication requirements, hurricanes and the like. A perfect example is that it took five -and -a -half weeks to get a responsive letter back from the Zoning Administrator, who is extremely competent, on issues that were holding up my plans and there was nothing that could do, His zoning department is just severy understaffed to handle the volume of development going on in Miami, Requested action on appeal Applicant requests as follows: 1.) That the City Commission determines that Section 2105.4.1,(a) of the Zoning Code should be striken and that it is in fact stricken, 2.) That the City Commission recognize that it is sitting as an Appellate Court in this case and that if the Commission votes against the Appellant and does riot strike Section 2105.4.1.(a), that Appellant shall be entitled to other provisions of Section 2105.4 that apply to appeals taken to the courts. 3.) That the City Commission direct the Office of Hearing Boards to reimburse the Appellant the amount of $500.00 which the appellant paid for appealing the case and having the Hearing Boards office send the case to the Zoning Board for review when the Zoning Board had no jurisdiction over the issue and in fact dismissed the case for lack of jurisdiction. NOTE: It is material to point out that the pending proposed changes to the code pursuant to the Zoning in Progress ordinance specifically whereby the Zoning Administrator is directed to extend the period of applications for permits with process numbers by 60 days to applicants that show that they are actively pursuing their permit, demonstrates an acknowledgement of the problem and a sincere effort to remedy the situation which raised the issue on appeal in this case. y A.Jbmitted, I avio Robles