HomeMy WebLinkAboutFebruary 13, 2006 ZB Transcript•
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City of Miami
Office of Hearing Boards
ZONING BOARD
Monday, February 13, 2006
CITY COMMISSION CHAMBERS
CITY HALL
3500 Pan American Drive
Dinner Key, Miami, Florida
ITEM 2
Members of the Board
(Present)
Ileana Hernandez -Acosta, Chairperson
Charles J. Flowers
Miguel A. Gabela
Charles Garavaglia
C . Chloe Kei dai sh
Juvenal Pine
Joseph Ganguzza
Carlos Martell
Angel Urquiola
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CHAIRWOMAN HERNANDEZ: Item Number 2,
please.
THE CLERK: Appeal of the Zoning
Administration interpretation and decision.
This is an appeal by Octavio Robles of the
zoning administration -- administrator
decision dated November 8, 2005 of
interpretation and decision regarding the
existing zoning ordinance as it pertains to a
provision contained in Section 2105.4(1.8),
which provides that any application for permit
pending plan with process numbers must
complete the permit process within 180 days as
the Ordinance 11000 has been amended.
This item has been continued from the
Zoning Board hearing of December 12th and
January 9, 2006.
CHAIRWOMAN HERNANDEZ: Thank you.
MR. ROBLES: Good evening.
THE CLERK: I think at this time we
should swear in everybody that is going to
testify,
CHAIRWOMAN HERNANDEZ: Yes. Anybody
who's going to be speaking tonight and is not
an attorney, would you please stand up and
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raise your right hand to be sworn in.
THE CLERK: Do you solemnly swear or
affirm that the testimony that you're about to
give is the truth, the whole truth, and
nothing but the truth, so help you God.
MR. ROBLES: I do.
CHAIRWOMAN HERNANDEZ: Thank you.
Yes, sir, state your name and address,
for the record, please.
MR. ROBLES: Octavio Robles, 2200 Lincoln
Avenue, Miami.
This has to do with an appeal of the
Zoning Administrator's decision to deny the
provision contained in 2105.4.1 be stricken
from the code, because it's of impossibility
to apply.
Back when -- basically, what it states is
that any plans that are submitted before a
change of zoning, an amendment to the zoning
legislation, would have six months, 180 days
to be able to complete the permitting process.
That was fine in 1991, and probably
well-intentioned, because in 1991, a set of
plans could be processed and pulled in 180
days. However, in mid 2005, with two
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hurricanes, that wasn't -- that wasn't
realistic, and it's still not realistic, even
without the two hurricanes.
So, effectively, what I'm appealing is,
that the decision of the Zoning Administrator
be overridden and that the item be stricken
from the code.
CHAIRWOMAN HERNANDEZ: Thank you.
Anybody else that would like to speak on
this item?
We'll close the meeting to the public,
and open it up to the Board and maybe we can
get some input from our attorney, the Board.
CITY ATTORNEY: How about the zoning
administrator.
CHAIRWOMAN HERNANDEZ: Certainly, the
Zoning Administrator. I thought he was going
to go first thing.
Go ahead. Go ahead.
CITY ATTORNEY: Whichever you prefer.
MR. TOLEDO: Orlando Toledo, Zoning
Administrator. There is no interpretation.
The code clearly says that it's six months,
and pretty much the letter that I gave was
stating what the code says. If there needs to
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be a change, then there needs to be a change
to the ordinance, not to my interpretation.
Pretty much, 2105, like he mentioned, .401
says that you have six months to obtain a
building permit, and that's pretty much what I
put in my
CHAIRWOMAN HERNANDEZ: Okay, yeah, that's
rather clear. You're not interpreting, you're
just --
BOARD MEMBER MR. GARAVAGLIA: So we can't
change the law. I mean -
CITY ATTORNEY: No. What I would say,
the Zoning Board has no jurisdiction over this
matter, in that you have jurisdiction over
appeals filed by individuals who believe they
are aggrieved by decision of the Zoning
Director or the Zoning Administrator. Here
he's really aggrieved by the wording of the
code, and if he doesn't like the wording of
the code, then the proper vehicle would be
either political, get the commission to amend
it or, B, go to court and get a declaratory
judgment action saying that our code is
unconstitutional or something along those
lines, but you have no decision to really
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arbitrate here, because there has been no
decision.
BOARD MEMBER MR. MARTELL: But this would
be -- part of the process for him to go to
court would be to hear through the appeal
process or he could just really take it to the
courts?
CITY ATTORNEY: He could have done it on
his own. We contemplated telling him that he
had no -- you know, dismissing the appeal or
something like that, but there is no vehicle
in our Zoning Ordinance for the clerk to
dismiss something. You sit as the judge in
this case.
So really there is no justiciable
issue here for you guys to decide. That's my
opinion.
CHAIRWOMAN HERNANDEZ: How can we vote on
something we have no jurisdiction?
CITY ATTORNEY: You could find that this
matter -- this appeal should be dismissed,
because there is no issue to decide or no
jurisdiction to decide the issue.
BOARD MEMBER MR, MARTELL: Well, actually
BOARD MEMBER MR. FLOWERS: Mr. City
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attorney, I don't have the letter with me, but
I recall the governor extending many of these
items because of hurricanes, and there was a
letter sent to the zoning to the building
department stating that fact. I don't have it
with me, I didn't think about bringing it
with me, but there was a letter sent out by
the governor extending a lot of these actions.
BOARD MEMBER MR. MARTELL: The governor
extended the Florida statute,
CHAIRWOMAN HERNANDEZ: That's not what
he's referring to. He's referring not just to
the hurricane, he's referring to the wording
of the Ordinance, and we have nothing to do
with the wording of the 0rdinance.
MR. TOLEDO: Also, what Mr. Flowers said
is correct, the governor did extend anything
that had to do with a building permit up to
July 1st of 2006, so, actually, there is a
stay, let's just say.
The only question is, if it is what the
Ordinance says, I mean, back to the six months
now, it clearly -- I mean, the code really
says six months, and you've got to change the
Ordinance, but as it stays right now, the
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governor did say that everybody had until
July 1, 2006, and that is correct.
BOARD MEMBER MR. MARTELL: Mr, Robles.
MR, ROBLES: Yes.
BOARD MEMBER MR. MARTELL: May I ask you
a question?
Is this something that you have a
disagreement on in principle or did you have a
particular problem the way that the Ordinance
was applied?
MR. ROBLES: Well, the six months didn't
work -- don't work, first of all,
Secondly, the Ordinance does not provide
for anything except for any appeal from a
decision of the Zoning Administrator to -- of
any kind to come to you guys. So this is kind
of the next step, the next logical step before
I take it to the -- I think in general,
besides the period that the governor has
granted, in general, six months doesn't work
anymore. And, basically, the City Commission
needs to look at this and strike it, amend it,
do something with it, but my only -- the way I
interpret the code, the only way that I have,
the only place that I have to go to was to you
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guys.
BOARD MEMBER MR. GANGUZZA: Well, you
know, I think you heard the comments of the
City Attorney. It would seem to me that from
here -- and I appreciate your argument, I know
what you're saying, and the time period and
the circumstances we're living with, all that
makes sense, but we can't change the law here.
MR. ROBLES: And I came here knowing that
you wouldn't -- that you didn't have the
authority to do so, but I have no choice,
except to come here because there was no
avenue.
BOARD MEMBER MR. GANGUZZA: So,
respectfully, as to Item 2, I would move that
we dismiss the appeal for lack of jurisdiction
to make a determination on what amounts to no
interpretation under the Ordinance at issue.
BOARD MEMBER MR. FLOWERS: Second.
CHAIRWOMAN HERNANDEZ: There is a motion
and a second by Mr. Flowers.
Yes?
BOARD MEMBER MR. MARTELL: Before we
dismiss it, I'd like to ask our administrator
a question on this issue, Mr. Toledo.
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And the Ordinance reads that they have
six months to obtain a building permit, not to
be approved by zoning, but to obtain a permit.
MR. TOLEDO: Yes, sir.
BOARD MEMBER MR. MARTELL: Okay. Has
this particular case been reviewed and
approved by zoning already?
MR. TOLEDO: We reviewed it back -- the
last day I believe was October 15th, we
reviewed it. There was some comments and it
hasn't been brought back to the office yet.
Let me just clarify that when -- what the
governor spoke about was the actual building
code, not the zoning.
BOARD MEMBER MR. MARTELL: Yes, that's
where I was going to then. If they extended
the Building Code, but not the Zoning Code,
that's where I wanted to make a difference,
because in this particular code, we're stating
the building code as our reference.
MR. TOLEDO: Right.
BOARD MEMBER MR. MARTELL: But we need a
building permit that has been extended, but
our Zoning Code hasn't been extended?
MR. TOLEDO: No, it hasn't.
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BOARD MEMBER MR. MARTELL: So he really
doesn't have until July with this application.
He's basically dead in the water unless he
takes it to court.
MR. TOLEDO: Right.
CITY ATTORNEY: And the ironic thing is,
that this ordinance was created as almost a
grace period to help people. Other
communities have something called zoning in
progress, which is, once you decide to rezone
something, that's it, no more applications can
be submitted.
The City allows you for a period -- a
grace period of six months to come in under
the old code and, you know, if the city didn't
have this provision, then once the law passed,
you were stuck.
BOARD MEMBER MR MARTELL: How far along
is your plans with respect to the Building
Department?
MR. ROBLES: Well, first of all, let me
clarify something that was misunderstood here.
It has to do with the building permit. What I
am bringing here today has everything to do
with the building permit, The problem is that
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the -- my appeal is from a Zoning
Administrator's decision, because the item is
in the Zoning Code, but it is not a zoning
issue. It's a building permit issue. When
the zoning changes, the zoning ordinance
changes, it triggers the six months.
BOARD MEMBER MR. MARTELL: Exactly.
MR. ROBLES: However, the six months is
to pull a building permit, and that is my
issue, is being able to pull the building
permit after the six -
BOARD MEMBER MR. MARTELL: What process
is the building permit right now? Have you
been approved by building, mechanical,
electrical?
CITY ATTORNEY: But here's the rote, the
rote is he can get a permit, He just doesn't
like the terms under which he can get the
permit, because the code changed. Before he
could get so much, Now he can only get so
much.
BOARD MEMBER MR. MARTELL: I agree.
CITY ATTORNEY: The significant terms of
the permit has changed. He can still get a
permit, just not under the old rule.
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MR. ROBLES: I believe I can get a permit
under the old rule.
BOARD MEMBER MR. MARTELL: If I'd be
applying for a permit, and I applied under the
old rule, and now somebody comes and tells me
six months later that I can't and I've been
trying effortlessly to get this permit and I
haven't been able to, I would be pissed off,
too.
But how long -- what have you done -- how
far along in the process have you been? The
Building Department has seen it?
MR. ROBLES: Almost ready to pull.
BOARD MEMBER MR. MARTELL: Almost ready,
meaning what, in building, mechanical,
electrical?
MR. ROBLES: Zoning.
BOARD MEMBER MR. MARTELL: Zoning,
Everybody's approved it, except zoning?
MR. ROBLES: Zoning is approved. One of
them is approved by zoning already. The other
one isn't. The other one there was an issue
that was -- that had to be changed and the
change has been done and now we have to go
back and get the zoning matter resolved.
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We're talking about two houses. One,
zoning approved it well before all this. It's
-- that's why I'm reiterating. This is matter
of pulling the permit after the six months,
not a zoning approval. The zoning was
approved on one of them. 0n the other one it
was rejected, but the change has to be made
within the old zoning ordinance, so that it
can then be approved under the old zoning
ordinance.
You got to understand, there's a lot of
other things that involve pulling a permit.
There are dedications of easements, of
rights -of -way. There are DERM. Two hurricane
in six months is just not good.
BOARD MEMBER MR. MARTELL: I understand
the process well. The County takes six months
for anything, you're out of the picture. I
don't care where you are in the process, if it
takes you more than six months, it's not -- it
has nothing to do with zoning, You're dead.
And that is part of the building code as
well. The building official has the right, if
you take over six months to pull the permit,
he could cancel altogether and you have to
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come back and reapply.
MR. ROBLES: No, that is not exactly the
case. As long as you're in the process and
you keep obtaining steps, it gets pushed six
months at a time.
BOARD MEMBER MR. MARTELL: No. No.
MR. ROBLES: It's my experience.
BOARD MEMBER MR. MARTELL: Six months,
read the building code, six months. If you
don't have the permit in your hand, the
building official has a right to tell you,
hey, come back and reapply. It's up to the
discretion of the building official, but
that's fine.
CHAIRWOMAN HERNANDEZ: We have -
MR. ROBLES: Is that in the County, in
the County you're talking about?
BOARD MEMBER MR. MARTELL: In Florida.
CHAIRWOMAN HERNANDEZ: Excuse me. We
have a motion and a second. I think you
wanted to make a comment -- or you made the
second? Okay, we have a motion and a second.
Ca11 the roll, please.
THE CLERK: The motion was to dismiss the
appeal and it was made by Mr. Ganguzza,
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seconded by Mr. Gabela,
UNIDENTIFIED SPEAKER: Dismissing the
appeal.
THE CLERK: Denied.
BOARD MEMBER MR. MARTELL: Dismissing the
appeal we can't hear it. We don't have
authority.
CHAIRWOMAN HERNANDEZ: It shouldn't be
here. It's not within our purview.
BOARD MEMBER MR. GANGUZZA: Jurisdiction.
CHAIRWOMAN HERNANDEZ: Jurisdiction.
That sounds legal. I like that.
THE CLERK: Mr. Ganguzza?
BOARD MEMBER MR. GANGUZZA: Yeah.
THE CLERK: Mr. Gabela?
BOARD MEMBER MR. GABELA: (Inaudible)
THE CLERK: Mr. Flowers?
BOARD MEMBER MR. FLOWERS: Yes.
THE CLERK: Mr. Garavaglia?
BOARD MEMBER MR. GARAVAGLIA: So the
motion is dismiss it, because it shouldn't be
here.
CITY ATTORNEY: Right,
MR. GARAVAGLIA: It's not going to be
implied our dismissal means there is no merit
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to this case?
CITY ATTORNEY: Basically you're not
deciding there are or are not merit. You're
just deciding that it shouldn't be here.
MR. GARAVAGLIA: Okay.
THE CLERK: Yes?
MR. GARAVAGLIA: Yes.
THE CLERK: Ms, Keidaish?
BOARD MEMBER MS. KEIDAISH: Yes.
THE CLERK: Just let me say for the
record, that she's here now.
Mr. Martell?
BOARD MEMBER MR. MARTELL: Yes, I'm
going to vote yes, although I agree with him
that they shouldn't give him, you know, that
short period of time, especially when the
Building Department is so backed up. For a
simple house, they should do a building permit
within six months. There is no excuse, but,
unfortunately, we don't have the authority to
go around the law. That's what the. law says.
THE CLERK: Mr. Urquiola?
BOARD MEMBER MR. URQUIOLA: Yes, I think
the same thing, we have no authority to change
the law. The law is already made. We have to
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follow. Everybody have to follow the law.
I'm sorry. Yes.
THE CLERK: Mr. Pina?
BOARD MEMBER MR. PINA: Yes, ma'am.
THE CLERK: And Ms. Hernandez?
CHAIRWOMAN HERNANDEZ: Yes.
THE CLERK: Motion passes unanimously.
(Thereupon, the hearing was concluded.
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CERTIFICATE OF REGISTERED PROFESSIONAL REPORTER
STATE OF FLORIDA:
SS:
COUNTY OF DADE:
I, LORENA RAMOS, Registered Professional
Reporter and Notary Public, do hereby certify that the
hearing before the City of Miami Zoning Board, Item #2,
was heard on the 13th day of February 2006; and that
the foregoing pages, numbered from 1 to 18, inclusive,
constitute a true and correct transcription of my
stenographic notes.
WITNESS my hand and official seal in the City
of Miami, County of Dade, State of Florida, this 11th
day of June 2006.
LORENA RAMOS, COURT REPORTER
METRO DADE COURT REPORTERS, INC. (305) 373-5600