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HomeMy WebLinkAboutZB Appeal LetterOctavio Robles 2210 Lincoln Ave. Miami, FL 33133 February 27, 2006 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 2105.4.1.0) 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 Budding 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. The complications and resulting delays in 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, 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 on issues that were holding up my plans and there was nothing that could do. 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 not 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. Respectfully Submitted, October 1, 2005 OCTAVIO ROBLES Architecture Construction 3109 Grand Avenue #342 Coconut Grove, FL 33133 USA (305) 858-2210 Orlando Toledo Zoning Administrator City of Miami 444 SW 2nd Ave Miami, FL 33130 RE: Two side by side single family houses with process numbers 050007624 and 050007629. Dear Mr. Toledo: This letter is a follow up of our meeting a few weeks ago regarding various zoning issues on each house. At said meeting, all issues were resolved and you asked that I prepare and address to you a detailed letter articulating the subject issues so that you could respond and I can use your response to secure zoning approvals. In the interest of clarity, I am using this letter as an introductory cover letter for both houses and their corresponding issues shown as Attachments "A" and "B". am also structuring the issues such that if you find it proper, you may simply acknowledge your approval directly on my form, thus saving you the trouble to respond in writing. also would like to again verify what you told me regarding the need to secure only zoning approvals within six months of the adoption of the NCD3 zoning overlay and that as long as the zoning is approved, I can proceed to pull the actual permits after the six month period so long as my process numbers are active and therefore protect my zoning approvals. You also pointed out that this does not necessarily apply if a "Pending Zoning" legislation is passed. Thanks again for your attention to this matter. ctavio Robles Attachments "A" and "B" ATTACHMENT "A" Process No: 050007624 Present address: 2200 Lincoln Ave. Miami, FL 33133 Folio corresponding to above address: 01-4122-001-1120 Legal Description corresponding to above address and folio: Lots 1, 2 and 3, Block "E" Rhodes Amend. Plat of New Biscayne, PB "B" Pg 16. Legal description corresponding to above process no: Lot 2, Block "E", Rhodes Amend. Plat of New Biscayne, PB "B" Pg 16. Proposed new address for new lot 2 house with above process no: 2210 Lincoln Ave. Miami, FL 33133 1.) Please acknowledge that the issue raised as item no. 00520 (yard encroachments) pertaining to (a) A 3' - 0" wide curving glass block bay window wall encroachment into the front setback as well as two separate 2' - 0 " encroachments on the side setbacks by (a) a triangular glass block bay window/wall enclosing showers and (b) a glass block bay window/wall enclosing one side of an elevator shaft are acceptable and approved by you. 2.) Please acknowledge that the issue raised as item 00565 (visibility triangles) pertaining to (a) The Freeman Street driveway entrance, (b) The CBS wall ends on the freeman Steet side and (c) The wall ends/utility entrance on 22nd Ave. are resolved as follows: (a) The Freeman Street visibility triangle requirement is satisfied because there are no walls whatsoever within the driveway 10' visibility triangle area. (b) There are no driveways or proposed driveways on the pending plans (see attatchment "B") for the adjacent lot (lot 3) within the 10' visibility triangle that projects from the common corner of lots 2 and 3. and even if the house on lot 3 was not built, the visibility triangle that would apply to lot 2 would meet the requirements and (c) There is no requirement for improvements to accomodate a 10' visibility triangle on the 22nd Ave. side wall ends/utility entrance because it is not intended to be used as a driveway. (see copy of drawings as exhibit "A") ATTACHMENT "B" Process No: 050007629 Present address: 2200 Lincoln Ave. Miami, FL 33133 Folio corresponding to above address: 01-4122-001-1120 Legal Description corresponding to above address and folio: Lots 1, 2 and 3, Block "E" Rhodes Amend. Plat of New Biscayne, PB "B", Pg 16. Legal description corresponding to above process no: Lot 3, Block "E", Rhodes Amend. Plat of New Biscayne, PB "B", Pg 16. Proposed new address for new lot 2 house with above process no: 3121 Freeman Street Miami, FL 33133 1.) Please acknowledge that the issue raised as item no. 00536 (parking egress/ingress) and 00539 (Driveway not to code) have been resolved by the use of "turfblock" adjacent to the side CBS wallifence and for the entire length of the driveway within 5' - 0" of the side property line together with either turfblock or a paver over a 6" limerock base for the remaining part of the driveway and parking area. 2.) Please acknowledge that the issue raised as item no. 00555 (yard encroachments) pertaining to a triangular shaped glass block enclosed integrated porch covering an area of 31 square feet (where 72 sq. ft. is allowed) and encroaching into the front setback by the width of no more than 12' and the depth of no more than 6' is acceptable and approved by you. (see copy of drawings as exhibit "B") November 8, 2005 Octavio Robles 3109 Grand Avenue, #342 Miami, FL 33133 iOE ARRIOLA City nmitt;vr Re: NCD-3legislation Dear Mr. Robles: Pursuant to your letter received October 1, 2005 requesting verification for the above, please be advised of the following. The NCD-3 (Coconut Grove Neighborhood Conservation Overlay District) was signed and attested by the City Clerks office on April 5, 2005. The effective date is May 5, 2005 complying within six (6) months of the effective date. Pursuant to Article 21, Section 2105.4.1 it states the following: "Any property owner or lawful representative thereof, who, prior to the effective date of any legislation repealing or modifying regulations which allow the requested activity, has properly filed a complete application for a development permit(s) with the appropriate city department, is hereby authorized to proceed with such application(s) regardless of the subsequent repeal of regulations relevant to such requested activity, unless the contrary is specifically decreed. In no ease shall an application be accepted subsequent to the effective date of an ordinance which precludes the approval or action applied for. Applicants for said development permits shall be allowed to make changes in their application(s) only when so required by the city as a result of its review of the application(s). The necessary building permit(s) or certificate(s) of use, whichever is first required, when reviewed under expired regulations, shall be obtained a) within one hundred eighty (180) days of the effective date of the expired regulations; a) within one hundred eighty (180) days of the effective date of the expired regulations; b) within one hundred eighty (180) days from the date of special permit approval by the appropriate depai intent, or final public hearing approval as the case may be. In the event an appeal is taken to the courts, said building permit(s) or certificate(s) shall be obtained within one hundred eighty (180) days from the date the final court decision is rendered, whichever provides the longer period of time." Since a complete application has been submitted to the City of Miami prior to the effective date of May 5, 2005, the answer to your question is in the affirmative as long as you abide by the 180 days provision of obtaining a permit. For your reference, I am enclosing a copy of the said regulations. If further zoning information is required on this matter, please contact our zoning information counter at (305) 416-1499. / Very R lyyou rlando Toledo, r Zoning Admi orator DEPARTMENT OF ZONING 444 S.W. 2€nd Avenue, 4'Floor, Miami, FL 331 30 1305) 416-1499 Telecopier {305) 416-1490 n��flin� Arlrlresc: P.O. Box 330708 Miami, Floridla 33233-0708 ARTICLE 21. ADMINISTRATION, ENFORCEMENT, VIOLATIONS, AND PENALT... Page 1 of 1 2105.4. Status of applications for development permits or certificates of occupancy under Ordinance No. 11000 when Ordinance No. 11000 has been amended. 2105.4.1. Applications and Permits. Any property owner or lawful representative, who, prior to the effective date of any legislation repealing or modifying regulations which allow the requested activity, has properly filed a complete application for a development permits) with the appropriate City department, is authorized to proceed with such application(s) regardless of the subsequent repeal of regulations relevant to such requested activity, unless the contrary is specifically decreed. In no case shall an application be accepted subsequent to the effective date of an ordinance which precludes the approval or action applied for. Applicants for said development permits shall be allowed to make changes in their application(s) only when so required by the City as a result of its review of the application(s). The necessary building permit(s) or certificate(s) of use, whichever is first required, when reviewed under expired regulations, shall be obtained: a) Within one hundred eighty (180) days of the effective date of the expired regulations; /q/77h lice=21 O5 4 1:: I 1 /8/2005