HomeMy WebLinkAboutRESCISSION of Ordinance 12911 documentationCITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Priscilla A. Thompson, City Clerk
FROM: Julie O. Bru, ty Attorney
DATE: March 31, 2009
RE: The Vizcayans, Inc., et al - Mercy Hospital
Matter ID No.: 07-1124-Rescission of Ordinance No. 12911
The signed Final Order entered by the Administration Commission on March 27, 2009, in
the above -referenced matter is attached. It finds the FLUM amendment for the property at the
Mercy Hospital Campus located at 3663 South Bayshore Drive to be "not in compliance" with
the State Comprehensive Planning Act. At the direction of my office, the Planning Department
has already changed the FLUM map designation for this property back to its former land use
designation of Major Institutional/Public Facilities.
The Final Order of the Administration Commission directs the City to rescind City of
Miami Ordinance No. 12911 and to issue a "report" as to the status of Ordinance No. 12911.
The City is not appealing the order and must comply with it.
In accordance with the Final Order of the State of Florida Administration Commission, I
have enclosed a brief Affidavit for your signature and direct you to rescind Ordinance No.
12911. Upon your review, please sign and return the original Affidavit and your legistar report
to me.
Thank you for your thoughtful assistance.
JOB/yei
Enclosure
cc: Pedro G. Hernandez, P.E., City Manager
Ana Gelabert-Sanchez, Director of Planning
Doc. No.: 166849.doc
FINAL ORDER No. AC-09-002
STATE OF FLORIDA
ADMINISTRATION COMMISSION
THE VIZCAYANS, INC., a Florida not -for -profit
corporation;GROVE ISLE ASSOCIATION, INC.,
a Florida not -for -profit corporation; et al
Petitioners,
VS.
CITY OF MIAMI, a Florida
Municipal Corporation,
Respondent,
and
AC Case No. ACC-08-004
DOAH Case Nos. 07-2498 GM/
07-2499 GM(Consolidated)
TRG-MH VENTURE, LTD., and MERCY
HOSPITAL, INC., a Florida not -for -profit corporation,
Intervenors.
AFFIDAVIT OF CITY OF MIAMI CITY CLERK
STATE OF FLORIDA
ss
COUNTY OF MIAMI-DADE
Before me personally appeared, Priscilla A. Thompson, who is the City Clerk for
the City of Miami, and after being duly sworn deposes and says:
1. I am the City Clerk for the City of Miami and have such duties as are
prescribed by §49 of City Charter and other applicable laws, including, without
limitation, serving as the custodian of all legislation and maintaining a records
management system.
AC Case No. ACC-08-004
DOAH Case Nos. 07-2498GM and 07-2499gn
2. I have been instructed by the Office of the City Attorney to rescind City of
Miami Ordinance 12911 ("Ordinance 12911") that changed the land use designation of
certain property identified in Ordinance 12911 from Major Institutional/ Public Facilities
to High Density Multifamily Residential.
3. Per the instruction of the Office of the City Attorney, I have rescinded
Ordinance 12911.
4. Ordinance 12911 appears as being rescinded in the Official records of the
City of Miami including the legistar system, which is the City's records management
system for legislation.
FURTHER AFFIANT SAYETH NAUGHT
-0,e �Le .e(^�`--'
Priscilla A. Thompson, City Clerld, Affiant
SWORN TO AND SUBSCRIBED before me by Priscilla A. Thompson, who is
personally known to me or has presented ,tcsow,�t y V.:now % as
identification, on this m day of April, 209.
My Commission Expires:
Notary 5ti c ;itota o1 Florida
Todd Hannon raaonfl
My Commission [)a.'
Expires 0811312010
Notary Public
State of Florida at Large
JULIE O. BRU, CITY ATTORNEY
RAFAEL SUAREZ-RIVAS
ASSISTANT CITY ATTORNEY
Attorneys for CITY OF MIAMI
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130-1910
Tel.: (305) 416-1800
Fax: (305) 416-1801
By:
Rafael Suarez -Rivas,
Assistant City Attorney
Florida Bar No. 0293881
166944.doc
AC Case No. ACC-08-004
DOAH Case Nos. 07-2498GM and 07-2499gn
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to the
below listed by mail this day of , 2009:
Barbara Leighty, Clerk
Transportation and Economic
Development Policy Unit
The Capitol, Room 1801
Tallahassee, Florida 32399-0001
Jason Gonzalez, General Counsel
Office of the Governor
The Capitol, Suite 209
Tallahassee, Florida 32399-0001
Patrick J. Goggins, Esquire
Patrick J. Goggins, P.A.
Sun Trust Building, Suite 850
777 Brickell Avenue
Miami, FL 33131-2811
John C. Lukacs, Esquire
John C. Lukacs, P.A.
201 Sevilla Avenue, Suite 305
Coral Gables, FL 33146
Darrell W. Payne, Esq.
Stephen J. Darmody, Esq.
Shook, Hardy & Bacon, LLP
201 S. Biscayne Blvd, Suite 2400
Miami, FL.33131
H. Ray Allen, II, Esq.
Carlton Fields, P.A.
4221 West Boy Scout Blvd.
Suite 1000
Tampa, Fl 33607
John K. Shubin, Esq.
Shubin & Bass, P.A.
46 S.W. 1st Street, Third Floor
Miami, Florida 33130
166944.doc
AC Case No. ACC-08-004
DOAH Case Nos, 07-2498GM and 07-2499gn
Lewis W. Fishman, Esq.
Lewis W. Fishman P.A.
Two Datran Center, Suite 1121
9130 South Dadeland Boulevard
Miami, FL 33156
By:
RAFAEL SUAREZ-RIVAS,
Assistant City Attorney
TFB # 0293881
166944.doc
FINAL ORDER NO. AC-09-002
STATE OF FLORIDA
ADMINISTRATION COMMISSION
THE VIZCAYANS, INC., a Florida not -for -profit
corporation; GROVE ISLE ASSOCIATION, INC.,
a Florida not -for -profit corporation; CONSTANCE
STEEN; JASON E. BLOCH; and GLENCOE
NEIGHBORHOOD ASSOCIATION, INC., a
Florida not -for -profit corporation,
Petitioners,
vs.
CITY OF MIAMI,
Respondent,
and
TRG-MH VENTURE, LTD., and MERCY
HOSPITAL, INC., a not -for -profit Florida
corporation,
Intervenors.
AC Case No. ACC-08-004
DOAH Case Nos. 07-2498GM
07-2499GM
FINAL ORDER
This cause came before the Governor and Cabinet, sitting as the Administration
Cornrnission ("Commission") on March 24, 2009, upon the Recommended Order and the
Supplement to Recommended Order After Remand ("Supplement") entered pursuant to Section
163.3187(3), Florida Statutes, in Division of Administrative Hearings ("DOAH") Case Nos. 07-
2498GM and 07-2499GM. The Commission is charged with taking final agency action
regarding whether a small scale development amendment is not "in compliance." See §
163.3187(3)(b)1., Fla. Stat. For the reasons stated below, and upon review of the record, the
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Commission adopts the findings of fact and conclusions of law set forth in the Recommended
Order and Supplement, except as modified herein, which are incorporated and attached as
Exhibits "A" and "B."
BACKGROUND
On April 26, 2007, Respondent City of Miami ("Miami") adopted a comprehensive plan
amendment ("Amendment"), through City of Miami Ordinance 12911 ("Ordinance 12911"), that
changed the future land use designation on its Future Land Use Map ("FLUM") for a 6.72-acre
parcel of land froth Major Institutional, Public Facilities, Transportation and Utilities ("Major
Institutional") to High Density Multifamily Residential ("H/D Residential").1 The
comprehensive plan amendment was adopted through the procedure established for a small-scale
FLUM amendment in Section 163.3187, Florida Statutes (2007). The mayor signed Ordinance
12911 on May 7, 2007.
On June 4, 2007, The Vizcayans, Inc. ("Vizcayans"), Alvah H. Chapman, Jr., Betty B.
Chapman and Cathy L. Jones filed a petition with DOAH challenging the FLUM Amendment's
compliance with Chapter 163, Florida Statutes (2007). Their petition was assigned DOAH Case
Number 07-2498GM. On June 6, 2007, Grove Isle Association, Inc. ("Grove Isle"), Constance
Steen ("Steen"), Jason E. Bloch ("Bloch"), and Glencoe Neighborhood Association ("Glencoe")
filed a similar petition. Their petition was assigned DOAH Case Number 07-2499GM.
On June 13, 2007, the two cases were consolidated, and TRG-MH Venture, LTD.
("TRG-MH"), the contract vendee and proposed developer of the parcel, filed its Petition to
Intervene in support of Ordinance 12911. TRG-MH's Petition was soon followed by the Petition
to Intervene filed by Mercy Hospital, Inc. ("Mercy"), the parcel's owner and contract vendor,
1 At the same-tifnethe City Corximission voted to approve the FLUM Amendirient, it also approved the zoning
change and major use special permit subject to the condition that the size and scale of the project be reduced by 25
percent across the board.
also in support of Ordinance 12911. Both Petitions to Intervene were granted. Also in June,
Cathy L. Jones voluntarily dismissed her claim and was dropped as a party. Alvah and Betty
Chapman subsequently filed their voluntary dismissals and were dropped as parties in July 2007.
After several motion hearings, the final hearing took place in the Miami -Dade County
Courthouse from January 22 through January 25, 2008. On July 10, 2008, the Administrative
Law Judge (ALJ) issued a Recommended Order finding the FLUM Amendment adopted by
Ordinance 12911 not "in compliance." On October 20, 2008, the Commission issued an "Order
of Remand" in which it rejected Conclusions of Law 70, 78, 79, 80 and part of 84 and
determined that the ALJ applied the incorrect standard of proof for the purposes of determining
whether the FLUM Amendment is related to and consistent with the local comprehensive plan.
Four days later, the ALJ issued the Supplement in which he amended Finding of Fact 70 of the
Recommended Order. The Commission is authorized to take final agency action and determine
whether the small-scale FLUM Amendment adopted by Ordinance 12911 is not "in compliance."
See § 163.3187(3)(b)1., Fla. Stat.
STANDARD OF REVIEW OF RECOMMENDED ORDER AND EXCEPTIONS
The Administrative Procedure Act provides that the Commission will adopt the ALJ's
Recommended Order except under certain limited circumstances. The Commission has only
limited authority to reject or modify the ALJ's findings of fact:
The agency may not reject or modify the findings of fact unless the agency first
detennines from a review of the entire record, and states with particularity in the
order, that the findings of fact were not based upon competent substantial
evidence or that the proceedings on which the findings were based did not comply
with essential requirements of law.
§ 120.57(1)(1), Fla. Stat. (2007)
When fact-finding functions have been delegated to a hearing officer, as is the case here, the
Commission must rely upon the record developed before the hearing officer. See Fox v.
3
Treasure Coast Reg'l Planning Council, 442 So. 2d 221, 227 (Fla. 1st DCA 1983). As the
hearing officer in an administrative proceeding is the trier of fact, he or she is privileged to weigh
and reject conflicting evidence. See Cenac v. Fla. State Bd. of Accountancy, 399 So. 2d 1013,
1016 (Fla. 1st DCA 1981). Therefore, "[i]t is the hearing officer's function in an agency
proceeding to consider all the evidence presented, resolve conflicts, judge credibility of
witnesses, draw peiniissible inferences from the evidence, and reach ultimate findings of fact
based on competent, substantial evidence." Bejarano v. State of Fla., 901 So. 2d 891, 892 (Fla.
4th DCA 2005)(quoting Heifetz v. Dept of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st
DCA 1985) (citing State Beverage Dept v. Ernal, Inc., 115 So. 2d 566 (Fla. 3rd DCA 1959))).
The Commission cannot reweigh evidence considered by the ALJ, and cannot reject findings of
fact made by the ALJ if those findings of fact are supported by substantial competent evidence in
the record. Heifetz, 475 So. 2d 1277 (Fla. 1st DCA 1985). Competent substantial evidence
means "such evidence as will establish a substantial; basis of fact from which a fact atissue can
be reasonably inferred," and evidence which "should be sufficiently relevant and material that a
reasonable mind would accept it as adequate to support the conclusion reached." De Groot-v:
Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The Commission may modify or reject conclusions of law in the Recommended Order
over which it has substantive jurisdiction, and the standard for review is well -settled. See §
120.57(1)(1), Fla. Stat. When rejecting or modifying conclusion of law, the Commission must
state with particularity its reasons for rejecting or modifying such conclusion of law. Any
substituted conclusion of law must be as or more reasonable than.the conclusion of law provided
by the ALJ in the recommended order. Id.
4
RULINGS ON EXCEPTIONS
AMENDED EXCEPTIONS & EXCEPTION TO SUPPLEMENT
OF PETITIONER VIZCAYANS
Exception 1
In its "Exceptions to Supplement to Recommended Order," Petitioner Vizcayans
incorporates by reference and reaffirms its "Amended Exceptions to Recommended Order."
However, Petitioner Vizcayans did not incorporate or reaffirm Exception 1. The Commission
will treat Exception 1 as withdrawn.
Exception 2
Petitioner Vizcayans takes exception to Paragraph 60, in which the ALJ finds that the
Petitioners failed to prove by a preponderance of the evidence that High Density Multifamily
Residential future land use on the site is incompatible with the surrounding uses or is
inappropriate. The Commission has reviewed both Petitioner Vizcayans' exception and
Intervenor Mercy's response to that exception, as well as the relevant parts of the record.
Petitioner Vizcayans mostly reargues the evidence presented at the hearing, and its argument is
essentially a request for the Commission to reweigh the evidence. The Petitioner renewed this
exception with Exception S 1. Therefore, for the reasons the Commission explains under
Petitioner Vizcayans' Exception Si, the Petitioner Vizcayans' Exception 2 is DENIED.
Exception 3
Petitioner Vizcayans takes exception to mixed Finding of Fact and Conclusion of Law
53, in which the ALJ finds that the NCD-3 zoning overlay does not apply to the property subject
to the FLUM Amendment. The Commission has reviewed both Petitioner Vizcayans' exception
to the finding of fact and Intervenor Mercy's response to that exception, as well as the relevant
5
parts of the record. The Commission finds that the ALJ's findings of fact are supported by
competent substantial evidence and that Petitioner's assertions are not as or more reasonable than
the ALJ's determinations as to conclusions of law. Therefore, Petitioner Vizcayans' Exception 3
is DENIED.
Exception 4
Petitioner Vizcayans takes exception to the list of witnesses who testified by deposition
on page 8 of the Recommended Order. The Commission has reviewed Petitioner Vizcayans'
exception to the finding of fact as well as the relevant parts of the record. The Commission finds
that there is no competent substantial evidence to show that William Thompson, Ana Gelabert,
Lourdes Slazyk and Jolrn Matuska testified in their individual capacities. The evidence shows
that these four individuals were deposed as corporate representatives and authorized to speak on
behalf of their respective employers. Therefore, Petitioner Vizcayans' Exception 4 is
GRANTED.
Exception 5
Petitioner Vizcayans takes exception to the list of admitted evidence on page 9 of the
Recommended Order because it does not indicate that the Miami Comprehensive Neighborhood
Plan was admitted into evidence or that the ALJ took judicial notice of the FLUM and the City of
Miami Zoning Code. The Commission has reviewed Petitioner Vizcayans' exception to the
finding of fact as well as the relevant parts of the record. The record shows that the Miami
Comprehensive Neighborhood Plan was admitted into evidence and that the ALJ took judicial
notice of the FLUM and the City of Miami Zoning Code. Therefore, Petitioner Vizcayans'
Exception 5 is.GRANTED.
6
Exception 6
Petitioner Vizcayans takes exception to Finding of Fact 33, in which the ALJ finds no
covenant -in -lieu of unity of title has been prepared or executed for the site. The Commission has
reviewed Petitioner Vizcayans' exception to the finding of fact as well as relevant parts of the
record. While the record shows that a draft Declaration of Restrictions, Covenants and
Easements was prepared, it does not indicate that a final version has been prepared or that any
version has been executed. The Respondents did not file a response to this exception. Without
further information, the Commission cannot find that Finding of Fact 33 is not supported by
competent and substantial evidence. Therefore, Petitioner Vizcayans' Exception 6 is DENIED.
Exception 7
Petitioner Vizcayans takes exception to Finding of Fact 47, in which the ALJ finds that
the view corridors of Vizcaya's Gardens are not protected by federal, state or local statutes, rules
or ordinances. The Commission has reviewed both Petitioner Vizcayans' exception to the
findings of fact and Intervenor Mercy's response to that exception, as well as relevant parts of
the record. Petitioner Vizcayans reargues the evidence presented at the hearing and essentially
requests for the Commission to reweigh the evidence. The Commission finds that the ALJ's
findings of fact are supported by competent substantial evidence. Therefore, Petitioner
Vizcayans' Exception 7 is DENIED.
Exception S1
In its Exception S 1, Petitioner Vizcayans takes exception to Paragraph 60 of the
Recommended Order and Paragraph 70(b) of the Supplement. The Commission has reviewed
both Petitioner Vizcayans' exception to the findings of fact and conclusions of law as well as
relevant parts of the record.
7
The Petitioner includes numerous photographs and an "Analysis for Land Use Change
Request" ("Analysis") in its exception but does not state whether the photographs or Analysis are
from the record below. If the photographs and Analysis are from the record below, the Petitioner
must include "appropriate and specific citations to the record." See § 120.57(1)(k), Fla. Stat. If
the photographs and Analysis are not from the record below, it is inappropriate for the Petitioner
to include them in its exception. See § 120.57(1)(j), Fla. Stat.
In the Recommended Order, after reviewing all the evidence, the ALJ finds that the
Petitioners did not prove by a preponderance of the evidence that the Amendment is
incompatible with the surrounding uses or is inappropriate. In its exception, Petitioner
Vizcayans reargues the evidence presented at the hearing and essentially requests that the
Commission reweigh the evidence.
The Petition alleges that the FLUM Amendment is inconsistent with Future Land Use
Element Policy LU-1.1.3; which provides that the City's Zoning Ordinance will protect the City
from incompatible uses. As the term "compatibility" is not defined in the local comprehensive
plan, it is appropriate to refer to the definition of that term in Rule 9J-5.003(23), Florida
Administrative Code, for guidance. This Rule defines compatibility as "a condition in which
land uses or conditions can coexist in relative proximity to each other in a stable fashion over
time such that no use or condition is unduly negatively impacted directly or indirectly by another
use or condition."
The Supplement may be read as concluding as a matter of law that buffering alone
necessarily ensures compatibility. However, the existence of a buffer is not sufficient in and of
itself to demonstrate that land uses can coexist over time in the manner set forth in the Rule.
8
Notwithstanding this erroneous legal conclusion, the Commission finds that the ALJ's
ultimate finding and conclusion that Petitioners failed to prove by a preponderance of the
evidence that the FLUM Amendment is inconsistent with Policy LU-1.1.3 is supported by the
record. Therefore, Petitioner Vizcayans' Exception S 1 is DENIED.
AMENDED EXCEPTIONS & EXCEPTIONS TO SUPPLEMENT OF PETITIONERS
GROVE ISLE, STEEN, BLOCH AND GLENCOE
Exception 1
Petitioners Grove Isle, Steen, Bloch and Glencoe take exception to the ALJ's "conclusory
findings on issues of incompatibility and inconsistency." The Commission has reviewed both
Petitioners' exception to the findings of fact and Intervenor Mercy's response to that exception,
as well as relevant parts of the record. To the extent that the Petitioners argue that the ALJ
applies the incorrect standard of proof for consistency determination purposes, this argument .is
moot after the Connnission issued an "Order of Remand" stating that the ALJ applied the
incorrect standard of proof for the purposes of determining whether the small-scale amendment
is related to and consistent with the local comprehensive plan. The rest of Petitioners' exception
reargues the evidence presented at the hearing and essentially requests for the Commission to
reweigh the evidence. To the extent that the exception relates to compatibility, the Commission
denies the exception for the reasons explained under Petitioner Vizcayans' Exception S 1.
Therefore, Petitioners' "Exception to ALJ's Conclusory Findings on Issues of Incompatibility
and Inconsistency" is DENIED.
9
Exception 2
Petitioners Grove Isle, Steen, Bloch and Glencoe take exception to the ALJ's conclusion
that the word "use," in the context of Section 163.3187(1)(c)(1), Florida Statutes, refers to the
property that is the subject to the Amendment, which is to be developed for residential use and
not to adjoining property. The Conunission has reviewed both Petitioners' exception to the
finding of fact and Intervenor Mercy's response to that exception, as well as relevant parts of the
record. The Commission finds that the ALJ's findings of fact are supported by competent
substantial evidence and that Petitioner's assertions are not as or more reasonable than the ALJ's
conclusions of law. Therefore, Petitioners' "Exception: Small Scale Amendment Area
Calculation" is DENIED.
Exception 3
Petitioners Grove Isle, Steen, Bloch and Glencoe take exception to the ALJ's application
of the fairly debatable standard to deteiniine whether the Amendment is internally consistent
with other goals, objectives and policies of a comprehensive plan. The Commission rejected
Conclusions of Law 70, 78, 79, 80 and part of 84 of the Recommended Order and issued an
"Order of Remand" stating that the ALJ applied the incorrect standard of proof for the purposes
of determining whether the small-scale amendment is related to and consistent with the local
comprehensive plan. Therefore, Petitioners' "Exception: Burden of Proof' is DENIED as
MOOT.
Exception S1
. Petitioners Grove Isle, Steen, Bloch and Glencoe take exception to "the ALJ's conclusory
findings on issues of incompatibility and inconsistency in paragraph 70" of the Supplement. The
Commission has reviewed the Petitionersexception to the Supplement's finding of fact as well
10
as relevant parts of the record. Petitioners reargue the evidence presented at the hearing and
essentially request that the Commission reweigh the evidence. To the extent that the exception
relates to compatibility, the Commission denies the exception for the reasons explained under
Petitioner Vizcayans' Exception S 1. Therefore, Petitioners' exception to Paragraph 70 is
DENIED.
EXCEPTIONS OF INTERVENOR MERCY'
Exception 1
Intervenor Mercy takes exception to Findings of Fact 57, 61, 62 and 65, in which the ALJ
finds that the City misinterpreted the Pyramid Concept in the Miami Comprehensive
Neighborhood Plan. The Commission has reviewed both Intervenor's exception to the findings
of fact and Petitioners' responses to that exception, as well as relevant parts of the record. To the
extent that Findings of Fact 57, 61, 62 and 65 are findings of fact, they are supported by
competent substantial evidence. To the extent that Findings of Fact 57, 61, 62 and 65 are
conclusions of law, the Intervenor's assertions are not as or more reasonable than the ALJ's
conclusions of law. Therefore, Intervenor Mercy's Exception 1 is DENIED.
Exception 2
Intervenor Mercy takes exception to Findings of Fact 28, 66 and 69, as well as
Conclusions of Law 82 and 83, in which the ALJ finds and concludes that the FLUM
Amendment was not supported by adequate data and analysis. The Commission has reviewed
both Intervenor's exception to the findings of fact and Petitioners' responses to that exception, as
well as relevant parts of the record. The Commission finds that the ALJ's findings of fact are
2 Respondent City of Miami and Intervenors TRG-MH and Mercy jointing filed "Exceptions to the Recommended
Order" and "Response to the Petitioners' Exceptions to the Recommended Order." However, Respondent City of
Miami and Intervenor TRG-MH withdrew their exceptions on October 7, 2008.
11
supported by competent substantial evidence and that the Intervenor's assertions are not as or
more reasonable than the ALJ's conclusions of law. Therefore, Intervenor Mercy's Exception 2
is DENIED.
CONCLUSION
The Commission adopts the ALJ's findings of fact and conclusions of law in the
Recommended Order and the Supplement, except those previously rejected in the Order of
Remand and those modified herein. This decision by the Commission shall not be construed to
mean that the proposed use is compatible but that the Petitioners did not meet their burden of
proving the FLUM amendment is incompatible. Upon review of the record, the Recommended
Order and the Supplement, and after considering the parties' exceptions thereto, the Commission
further deteiiinnes that the FLUM Amendment adopted by City of Miami Ordinance 12911 is
not "in compliance" as_ defined by Section 163.3184(1)(b), Florida Statutes. In accordance with
Section 163.3189(2)(b), Florida Statutes, the Commission directs the City of Miami to adopt the
following.remedial nieasures:.1) rescind City of Miami Ordinance 12911; and 2) provide a report
to the Commission on the status of Ordinance 12911 within 45 days of this Final Order.
NOTICE OF RIGHTS
Any party to this Order has the right,to seek Judicial review of the Final. Order pursuant
to section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110,
Florida Rules of Appellate Procedure, with the Clerk of the Commission, Office of Policy and
Budget, Executive Office of the Governor, The Capitol, Room 1801, Tallahassee, Florida 32399-
0001; and by filing a copy of the Notice of Appeal; accompanied by the applicable filing fees,
with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of
the day this Order is, filed with the Clerk of the Commission.
DONE AND ORDERED thi -7 day of March, 2
JERRY L. Iv$C�D TIE
(Administration .Comun
12
FILED with the Clerk of the Administration Commission this f day of March, 2009.
1 rk, Administration C om/41.iss on'
13
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to the
following persons by United States mail or hand delivery this c/ day of March, 2009.
Honorable Charlie Crist
Governor
The Capitol
Tallahassee, Florida 32399
Honorable Bill McCollum
Attorney General
The Capitol
Tallahassee, Florida 32399
Carly A. Hernianson, Esquire
Governor's Legal Office
Room 209, The Capitol
Tallahassee, Florida 32399-0001
Honorable J. Lawrence Johnston
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
Darrell W. Payne, Esquire
Stephen J. Darmody, Esquire
Daniel B. Rogers, Esquire
Shook, Hardy & Bacon, LLP
Miami Center — Suite 2400
201 South Biscayne Boulevard
Miami, Florida 33131-4339
John Charles Lukacs, Esquire
John C. Lukacs, P.A.
201 Sevilla Avenue
Suite 305
Coral Gables, Florida 33134-6616
Honorable Alex Sink
Chief Financial Officer
The Capitol
Tallahassee, Florida 32399
Honorable Charles H. Bronson
Commissioner of Agriculture
The Capitol
Tallahassee, Florida 32399
Thomas G. Pelham, Secretary
Shaw P. Stiller, General Counsel
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Florida Administrative Law Reports
Post Office Box 385
Gainesville, Florida 32602
14
Patrick J. Goggins, Esquire
Patrick J. Goggins, P.A.
Sun Trust Building
Suite 850
777 Brickell Avenue
Miami, Florida 33131-2811
Julie O. Bru, City Attorney
Rafael Suarez -Rivas, Assistant City Attorney
Office of the City of Miami Attorney
444 Southwest 2nd Avenue
Suite 945
Miami, Florida 33130-1910
John K. Shubin, Esquire
Shubin & Bass, P.A.
46 Southwest First Street
Third Floor
Miami, Florida 33130-1610
H. Ray Allen, II, Esquire
Dianne Triplett, Esquire
Carlton Fields, P.A.
Post Office Box 3239
Tampa, Florida 33601-3239
Lewis W. Fishman, Esquire
Lewis W. Fislunan, P.A.
Two Datran Center
Suite 1121
9130 South Dadeland Boulevard
Miami, Florida 33156-7848
JERRY L. Ma- NI L' �c
Administration Commiss on
15
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE VIZCAYANS, INC., a Florida )
not -for -profit corporation; )
GROVE ISLE ASSOCIATION, INC., a )
Florida not -for -profit )
corporation; CONSTANCE STEEN; )
JASON E. BLOCH; and GLENCOE )
NEIGHBORHOOD ASSOCIATION, INC., )
a Florida not -for -profit )
corporation, )
Petitioners, )
vs. )
CITY OF MIAMI, )
Respondent, )
and )
TRG-MH VENTURE, LTD., and MERCY )
HOSPITAL, INC., a not -for- )
profit Florida corporation, )
Intervenors. )
Case Nos. 07-2498GM
07-2499GM
RECOMMENDED ORDER
Pursuant to notice, this matter was heard before the
Division of Administrative Hearings (DOAH) by its assigned
Administrative Law Judge, J. Lawrence Johnston, on January 22
through 25, 2008, in Miami, Florida.
Exhibit A
APPEARANCES
For The Vizcayans, Inc.:
Darrell W. Payne, Esquire
Stephen J. Darmody, Esquire
Daniel B. Rogers, Esquire
Shook, Hardy & Bacon, LLP
Miami Center - Suite 2400
201 South Biscayne Boulevard
Miami, Florida 33131-4339
For Grove Isle Association, Inc., Constance Steen, Jason E.
Bloch, and Glencoe Neighborhood Association, Inc.:
John Charles Lukacs, Esquire
John C. Lukacs, P.A.
201 Sevilla Avenue, Suite 305
Coral Gables, Florida 33134-6616
Patrick J. Goggins, Esquire
Patrick J. Goggins, P.A.
Sun Trust Building, Suite 850
777 Brickell Avenue
Miami, Florida` 33131-2811
For City of Miami:
Rafael Suarez -Rivas, Esquire
Assistant City Attorney
Office of the City of Miami Attorney
444 Southwest 2nd Avenue, Suite 945
Miami, Florida 33130-1910
For TRG-MH Venture, LTD.:
John K. Shubin, Esquire
Shubin & Bass, P.A.
46 Southwest First Street, Third Floor
Miami, Florida 33130-1610
For Mercy Hospital, Inc.:
H. Ray Allen, II, Esquire
Dianne Triplett, Esquire
Carlton Fields, P.A.
Post Office Box 3239
Tampa, Florida 33601-3239
Lewis W. Fishman, Esquire
Lewis W. Fishman, P.A.
Two Datran Center, Suite 1121
9130 South Dadeland Boulevard
Miami, Florida 33156-7848
STATEMENT OF THE ISSUES
The issues in this case are: (1) whether City of Miami
Ordinance 12911, which amends the Future Land Use Map (FLUM) of
the City of Miami Comprehensive Neighborhood Plan (MCNP), is a
small-scale development amendment, as defined by Section
163.3187(1)(c), Florida Statutes; and (2) whether Ordinance
12911 is "in compliance," as defined by Section 163.3184(1) (b),
Florida Statutes. (Statutes refer to the 2007 codification.)
PRELIMINARY STATEMENT
On April 26, 2007, Respondent City of Miami (City) adopted a
comprehensive plan amendment (Ordinance 12911), which changed the
future land use designation on the City's FLUM on a 6.72-acre
parcel of land from Major Institutional, Public Facilities,
Transportation, and Utilities (Major Institutional) to High
Density Multifamily Residential (H/D Residential). The parcel is
located approximately at 3663 South Bayshore Drive in the Coconut
Grove area of Miami, Florida. The amendment was adopted under
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the procedure for small-scale FLUM amendments described in
Section 163.3187, Florida Statutes. The City's Mayor signed the
Ordinance on May 7, 2007.
On June 4, 2007, The Vizcayans, Inc., Alvah H. Chapman, Jr.,
Betty B. Chapman, and Cathy L. Jones filed their Petition
Challenging Compliance of a Small -Scale Comprehensive Plan
Amendment with the Florida Growth Management Act. The petition
was assigned DOAH Case Number 07-2498GM. Two days later, Grove
Isle Association, Inc. (Grove Isle),.Constance Steen, Jason E.
Bloch, and Glencoe Neighborhood Association, Inc. (Glencoe) filed
their Petition Challenging Compliance of Small -Scale
Comprehensive Plan Amendment. The petition was assigned DOAH
Case Number 07-2499GM.
On June 13, 2007, the two cases were consolidated and-:TRG-MH
Venture, LTD..;(TRG-MH), the contract vendee.and proposed
developer of the parcel, filed its Petition to Intervene in
support of the challenged amendment. The Petition to Intervene
was granted, as was the Petition to -Intervene later. filed by
Mercy Hospital, Inc. (Mercy), the parcel's owner and contract
vendor. Also in June, Cathy L. Jones voluntarily dismissed and
was dropped as a party.
In July 2007, TRG-MH moved to strike portions of the.
petitions and,moved for a continuance of;_the final hearing, which
had been .;set . for ;August 31„ thro.ugh September _2 , 2007. After, a.
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case status hearing was held on July 18, 2007, the final hearing
was rescheduled to October 1 through October 4, 2007. Also in
July 2007, Alvah and Betty Chapman voluntarily dismissed and were
dropped as parties.
In August 2007, the State Attorney moved to intervene and to
stay discovery 'pending a state criminal investigation. Following
a hearing, the state's motion was granted and discovery was
stayed for 30 days. On August 30, 2007, the Petitioners filed
motions for summary disposition. In their motions, the
Petitioners maintained that certain land use designations in the
MCNP and the FLUM amendment at issue here were not "in
compliance" with Florida's Growth Management Act. Specifically,
the Petitioners based their argument on an alleged absence of
intensity standards in the H/D Residential future land use
category. After a hearing was held on September 14, 2007, the
Petitioners' motions for summary disposition were denied. Later
that month, after another hearing, the final hearing was
rescheduled for January 22-25, 2008.
TRG-MH filed an Amended Motion to Strike on September 20,
2007. In its amended motion, TRG-MH sought to eliminate certain
allegations in The Vizcayans' Petition regarding a purported
inconsistency with certain provisions of the Miami -Dade County
Comprehensive Plan, arguing that the question of consistency with
the County's Plan was beyond the scope of compliance review as
5
defined in Section 163.3184(1)(b), Florida Statutes. The
Vizcayans filed a Response in Opposition on September 27, 2007.
The City joined in the Amended Motion to Strike.
A telephonic hearing on the Amended Motion to Strike was
held on October 26, 2007. During the hearing, TRG-MH withdrew
certain arguments (regarding the County's Shoreline Development
Review Ordinance). On November 1, 2007, the rest of the Amended
Motion to Strike was granted, and paragraphs 71 through 90 of The
Vizcayans' Petition (concerning compliance with the County's
Comprehensive Development Master Plan) were stricken.
The Petitioners filed several motions to compel production.
regarding,; among other things, the contract: for purchase and sale
and any "covenant -in -lieu, of unity of title" that may have been
prepared or executed between Mercy and:TRG-MH. Mercy and TRG-MH
responded with motions for protective orders, arguing that
portions of the contract wereconfidential and that no "covenant -
in -lieu of unity of title" had been prepared or executed. After
hearing the argument of counsel on January 2and January_15,
2008, orders were entered on January 4 and January 18, 2008,
regarding these discovery disputes. After Mercy submitted a copy
of the contract and a draft of an unexecuted Declaration of
Restrictions, Covenants, and Easements, which had been listed on
Mercy's privilege log, to the court for -in camera review, TRG-MH
and Mercy were. ordered„to produce all drla,fas of ,the Declaration
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of Restrictions, Covenants, and Easements and any drafts of other
existing documents related to the transfer of interests in land
in connection with TRG-MH's Project.
The Petitioners filed a Unilateral Pre -Hearing Stipulation
on January 10, 2008, and on January 11, 2008, the Respondent and
the Intervenors filed a joint Unilateral Pre -Hearing Statement.
The final hearing took place in the Miami -Dade County
Courthouse from January 22 through January 25, 2008. At the
outset of the final hearing, The Vizcayans filed a Motion for
Summary Recommended Order, which was argued and denied.
In the presentation of their cases, the Petitioners
presented the non -expert testimony of: Jason Bloch; Constance
Steen; Timothy Moore, an officer and director of Grove Isle
Association, Inc.; and John Hinson, the corporate representative
for the Vizcayans, Inc.; Dr. Joel Hoffman, the Executive Director
of Vizcaya Museum and Gardens; Dan Fortin, Jr., a land surveyor
and mapper; Orlando Toledo, Senior Director of Building,
Planning, and Zoning for the City; and Chloe Keidaish, the
corporate representative of Arquitectonica International
Corporation, an architecture firm. They also presented the
expert witness testimony of: Arva Moore Parks, a local historian
and consultant; Richard Heisenbottle, an architect; Rocco Ceo, an
architect and professor of architecture; Subrata Basu, Interim
7
Director of Planning and Zoning for Miami -Dade County;
Arturo Sosa, a land surveyor; and Henry Ilex, an urban planner.
The Vizcayans had the following Exhibits admitted in
evidence for all purposes: 1, 7, 11, 12, 15, 21, 32, 33, 35, 56,
61, 63, 66, 91, 92, 94, 95, 98, 100, 101, 103, 104, 106, 110,
111, 115, 119, 122, 134, 137A, 138, and 139. The Vizcayans'
Exhibits 47, 53, 118, 127, 130, and 131 were admitted over
objection, but not for the truth of matters asserted. Exhibit 37
was admitted for the limited purpose of providing historical
context. Exhibit 93 was admitted exclusive of handwritten notes.
Ruling was reserved on objections to Vizcayans' Exhibits 23, 55,
74, 117, 12,8--, 129, 132, and 133. It is now ruled•that the
objections are overruled -,and these exhibits are admitted in
evidence.
The. following Grove Isle..and Glencoe exhibits, introduced by
the other Petitioners, were admitted into evidence: 11NN, 15,
21, 23, and 25.
In lieu of presenting live testimony, the Petitioners
jointly designed.portions of the deposition transcripts. of:
William Thompson, Vice -President of -the Related Group; City of
Miami employees, Ana Gelabert and Lourdes Slazyk;-.John..Matuska,
President and CEQ. of Mercy Hospital, Inc.; and Jason-Uyeda, the
corporate representative_of EDAW,. Inc. The.City and Intervenors
filed objections and cross -designations conclusion of the final
hearing on February 4, 2008. The Petitioners filed responses to
the objections and their own objections to the cross -designations
on February 14, 2008. All of the deposition designations and
cross -designations are admitted in evidence over the objections.
At the final hearing, the City presented the testimony of
Lourdes Slazyk, the City Zoning Administrator and the former
Assistant Director of the City's Planning Department. TRG-MH
presented the testimony of: J. Thomas Beck, a state land use
planning expert; and Jack Luft, the City's former Director of
Planning and local land use planning expert. TRG-MH's Exhibits 1
through 10 were admitted in evidence. TRG-MH's Exhibit 11 was
proffered.
In addition to the exhibits introduced at the final hearing,
the parties agreed to make the Legistar application files. for the
FLUM amendment, a related zoning change, and a major use special
permit (MUSP)--all of which are available on the City's website
(http://egov.ci.miami.fl.us/legistarweb/frameset.html)--part of
the record of this proceeding.
The multi -volume hearing Transcript (Volumes 1A, 1B, 2A, 2B,
3A, 3B, and 4A) was filed on March 3, 2008, and the exhibits were
filed on March 5, 2008. Proposed recommended orders (PROs) were
initially due April 2, 2008. An unopposed two -week extension was
granted, making the PROs due on April 18, 2008. The Petitioners
9
timely filed separate PROs, and the Respondent and Intervenors
timely filed a Joint PRO.
On May 12, 2008, The Vizcayans filed a copy of a circuit
court order quashing the City's zoning change and MUSP approvals
for the property subject to the FLUM amendment at issue. TRG-MH
and the City moved to strike, and The Vizcayans responded in
opposition on May 20, 2008. On June 26, 2008, The Vizcayans
filed copies of circuit court orders denying rehearing. Based on
the filings, although the relevance of the circuit court's orders
is marginal, the motion to strike is denied.
FINDINGS OF FACT
Based on all of the evidence, the following facts are
determined:
The Property Subject to the FLUM Amendment
1. TRG-MH Venture, LTD. (TRG-MH), is a Florida limited
partnership formed for the purpose of purchasing and developing
a parcel of property in the southeast corner of a larger, 40-
acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and
Mercy have executed a purchase and sale agreement for this
corner parcel, which is located at approximately 3663 South
Bayshore Drive in the Coconut Grove area of Miami, Florida (the
Site). TRG-MH hired an architectural firm, Arquitectonica,.to
design ontheSite a proposed residential development named 300
Grove Bay Residences (the Project). The Site, which currently
10
serves as a paved parking lot for Mercy Hospital employees,
measures 6.72 acres.
2. The Site is abutted on the north, northwest, and
northeast by the rest of the 40-acre parcel owned by Mercy and
used for its hospital, professional offices, and patient and
visitor parking. The tallest of these buildings is 146 feet.
To the north of Mercy's property and medical complex is another
30-plus acre parcel owned by the Catholic Diocese of Miami and
used for La Salle High School and a religious facility, Ermita
de la Caridad.
3. Abutting the northern boundary of the La Salle High
School property is Vizcaya Museum and Gardens.
4. To the west of the Site are a small convent, an
administration building, and a modest -sized assisted living
facility. To the west of these buildings is South Bayshore
Drive, which is a four -lane road. Single-family residential
neighborhoods are west of South Bayshore Drive.
5. The Site is abutted on the southwest, south, southeast
and east by Biscayne Bay. Grove Isle, a three -building, 18-
story condominium/hotel/marina complex, is located on a small,
man-made island (Fair Isle) in the Bay to the south of the Site.
It is located approximately 1,300 feet from the Site and is
separated from the Site by Bay water. Grove Isle has a future
land use designation of Medium Density Multifamily Residential
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(M/D Residential) and is zoned Medium -Density Residential (R-3).
However, Grove Isle is a legal nonconformity because it exceeds
the densities allowed in M/D Residential and R-3.
6. To the southwest of the Site, but separated from the
Site by Bay water, are single-family and medium -density
dwellings, including several multifamily structures.
Petitioners Bloch and Steen reside in this neighborhood. No
property zoned single-family residential (R-1) abuts the Site.
7. Currently a paved parking lot, the Site has no
archeological, environmental, or historical significance.
8. Miami -Dade County had designated.all of the'City as an
"Urban Infill Area." This designation is made in the County's
Comprehensive Plan and is implemented in Policy LU-1.1.11 of the
Future Lane Use Element (FLUE) of the City's Comprehensive
Neighborhood Plan.
The Parties
9. The Vizcayans, Inc. (The Vizcayans), is a not -for -
profit Florida corporation of volunteer members and a paid staff
consisting of: an executive director, a membership director,
and a controller. The purpose of the organization is to support
the Vizcaya Museum and Gardens (Vizcaya), a publicly -owned and
operated museum, through contributions and fundraising events.
The Vizcayans' office at'3251 South Miami Avenue is located on_•.
the grounds of Vizcaya. :The Vizcayans submitted comments in
12:
opposition to the proposed FLUM Amendment and appeared in person
and through lawyers at the City Commission hearings. The
Respondent and Intervenors stipulated that The Vizcayans have
standing as affected persons under Sections 163.3187(3)(a) and
163.3184(1)(b), Florida Statutes, to challenge the small-scale
development amendment in this proceeding based on allegations
that The Vizcayans operate a business in the City.
10. Miami -Dade County owns Vizcaya. By contract, The
Vizcayans provides funds annually to Miami -Dade County for use
in maintaining Vizcaya's properties and conducting educational
programs. Any funds in excess of those owed to the County under
the contract are used to pay staff and host fundraisers or are
invested for future use. Vizcaya is governed by the County
through the Vizcaya Museum and Gardens Trust, which is an agency
of Miami -Dade County.
11. Jason Bloch and Constance Steen reside in the City and
own properties to the southwest of the Site. Glencoe is a not -
for -profit corporation of homeowners in the Glencoe neighborhood
to the southwest of the Site. Mr. Bloch formed the corporation
during the pendency of the application proceedings for the
primary purpose of opposing the proposed development of the
Site. Bloch, Steen, and Glencoe submitted comments in
opposition to the proposed FLUM amendment.
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12. Grove Isle is a not -for -profit Florida corporation of
condominium owners. Grove Isle submitted comments in opposition
to the proposed FLUM amendment. The City and Intervenors
stipulated to Grove Isle's standing in these proceedings.
13. The City is a political subdivision of the State of
Florida. The City adopted its Comprehensive Neighborhood Plan,
including its FLUM, in 1989. The Comprehensive Plan and the
FLUM have been amended from time to time as allowed by law.
14. TRG-MH is a joint venture limited partnership. Its
direct and indirect participants include Ocean Land Equities,
Ltd., and The Related Group. TRG-MH contracted to purchase the
Site from Mercy and applied to the City for the FLUM Amendment
at issue in this proceeding. TRG-MH also submitted applications
for a change of zoning and MUSP on the Site. The zoning and
MUSP applications, and the resulting City ordinance and
resolution arising from their approval, are not at issue in this
proceeding.
15. Mercy is a not -for -profit Florida corporation that
owns and operates Mercy Hospital. Mercy has contracted to sell
the Site to TRG-MH.
The FLUM Amendment
16. In June 2007, TRG-MH applied to the City for a small-
scale development amendment to change the Site's land use
designation on the City's Future Land Use Map (FLUM) from Major
14
Institutional, Public Facilities, Transportation and Utilities
(M/I) to High Density Multifamily Residential (H/D). TRG-MH
submitted its application concurrently with its applications for
a zoning change from G/I to R-4 and for a MUSP.
17. According to the FLUM Amendment application, TRG-MH
was seeking a map amendment for a 6.723-acre parcel of real
property.
18. With its FLUM Amendment application, TRG-MH submitted
a survey prepared and certified by surveyors Fortin, Leavy &
Skiles. The survey depicted: the Site, as a parcel with a "net
lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres,
that wrapped around the Site on its west and north sides (the
Perimeter Road); and a Private Road, also known as Tract "C" or
Halissee Street, measuring .95 acres, which accesses the Site
and Perimeter Road from South Bayshore Drive.
19. Accompanying the survey was a legal description for
the Site, which included a description for the proposed new
Perimeter Road abutting the Site. The legal description covered
an area comprising 8.11 acres.
20. Also accompanying the application was a traffic
analysis showing the impact to existing road networks of traffic
resulting from the proposed MUSP application, which sought to
build 300 residential units on property currently having no
existing residential units.
15
21. TRG-MH's applications were reviewed by the City's
Planning Department and its Planning Advisory Board (PAB). The
City's Planning Department recommended approval of the land use
designation change. The PAB's 3-3 tie vote operated as to deny
the request for a change of the land use designation
recommendation.
22. On April 26, 2007, the City Commission voted to
approve the FLUM amendmentapplicationand, with modifications,
the accompanying zoning and MUSP applications. (The City
Commission approved the zoning change and MUSP subject to the
condition that the size and scale of the Project be reduced by
25 percent across the board. Thus, for example, .the .height of
the tallest of the three condominium buildings was reduced from
approximately 411 feet to 310 feet.) The FLUM change. was
adopted by Ordinance 12911, which the Mayor signed on May 7,
2007.
23. Ordinance 12911 amended the FLUM by changing the land
use designation "for the property located at approximately 3663
South Miami Avenue, Miami, Florida, more particularly described
in Exhibit A attached and incorporated.' Exhibit A to the
ordinance was the legal description included on the Fortin,
Leavy, Skilessurvey.
24. Thesection. of the. MCNP entitled "Interpretation of
the Future Land Use Plan Map" describes the;various future land
16
use categories in the Plan. It describes the Major
Institutional future land use category as follows:
Major Institutional Public Facilities,
Transportation and Utilities: Areas
designated as "Major Institutional, Public
Facilities, Transportation and Utilities"
allow facilities for federal, state and
local government activities, major public or
private health, recreational, cultural,
religious or educational activities, and
major transportation facilities and public
utilities. Residential facilities ancillary
to these uses are allowed to a maximum
density equivalent to "High Density
Multifamily Residential" subject to the same
limiting conditions.
Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006).
25. The same section describes the H/D Residential, in
pertinent part, as follows:
Areas designated as "High Density
Multifamily Residential" allow residential
structures to a maximum density of 150
dwelling units per acre, subject to the
detailed provisions of the applicable land
development regulations and the maintenance
of required levels of service for facilities
and services included in the City's adopted
concurrency management requirements.
MCNP at 20 (June 2006). (By way of comparison, M/D Residential
is described similarly except that the maximum density is 65
dwelling units per acre.)
26. According to the MCNP, the FLUM land use designations
"are arranged following the 'pyramid concept' of cumulative
17
inclusion, whereby subsequent categories are inclusive of those
listed previously, except as otherwise noted."
27. Ordinance 12911 was not reviewed by the Department of
Community Affairs (DCA), as required for text changes and large-
scale FLUM changes to a comprehensive plan.
28. On June 4 and 6, 2007, Petitioners filed their
petitions challenging the FLUM Amendment. Generally, the
Petitioners alleged that the FLUM Amendment did not qualify for
treatment as a "small-scale" development amendment; was
internally inconsistent with other provisions of the City's
Comprehensive Neighborhood Plan; was not supported by adequate
data and analysis; and was not "in compliance" with Florida's
Growth Management Act and its implementing regulations.
Scale of the FLUM Amendment
29. A small-scale developmentamendmentmaybe adopted if
•
the "proposed amendment involves a use. of 10 acres or. fewer."
§ 163 .3187 (1) (c) (1) , Fla. Stat.
30. According to the survey and architectural plans on
file with the City, the "net lot area" of the Site measures 6.72
acres. The City Zoning Code defines "net lot area" as "[t]he
total area within the lot lines excluding any street rights -of -
way or.other required dedications." § 2502, City Zoning Code.
31. In determining how large (in square feet of floor
area) the planned Project could be, the architects were
18
permitted, under the City's zoning regulations, to multiply the
"floor area ratio" (FAR) for the High Density Multifamily
Residential zoning classification by an area larger than the
"net lot area." See § 401, City Zoning Code. The Zoning Code
allows the maximum square footage to -be calculated using the
Site's "gross lot area." Id.
32. The City Zoning Code defines "gross lot area," in
pertinent part, as "[t]he net area of the lot, as defined
herein, plus half of adjoining street rights -of -way and seventy
(70) feet of any other public open space such as parks, lakes,
rivers, bays, public transit right-of-way and the like."
§ 2502, City Zoning Code.
33. If the "gross lot area" to be used to calculate the
maximum square footage involves properties under different
ownership, either the owners must apply jointly for a MUSP, or
they must enter a covenant -in -lieu of unity of title.
Properties joined by a covenant -in -lieu of unity of title need
not have the same land use designation or zoning classification.
If a covenant -in -lieu of unity of title is required, it need not
be submitted to the City until building permits are sought. At
present, no covenant -in -lieu of unity of title has been prepared
or executed for the Site.
34. The "gross lot area" used to calculate the Project's
maximum square footage of floor area measured 11.44 acres.
19
Thus, the Petitioners argued that the FLUM Amendment "involved a
use" of more than 10 acres. But the application requested a
land use designation change on only 6.72 acres of land. Because
High -Density Multifamily Residential use will not be made of the
proposed Perimeter Road, the access road known as Halissee
Street, or the proposed Bay Walk, a land use designation change
was not required for that acreage. Indeed, according to the
amended FLUM, there is no land use designation -applied to
Halissee or to the northern part of the Perimeter Road.
Moreover, use of Halissee Street, the Perimeter Road, and the
Bay Walk is not exclusive to the 6.72 acres butwill remain
shared with Mercy Hospital, its patients and employees, as well
as with the public.
35. The Petitioners attempted to prove that a marina was
planned to serve the development, which would involve.a total
use of more than ten acres forresidential purposes. Even if a
marina was initially contemplated, the application on file with
the. City does not include one, and .there ._are no approved plans
for a marina; to be incorporated into the proposed residential
development. No marina is required to be developed in
connection with the 300 Grove Bay project. .Moreover, there was
unrebutted evidence that it is highly unlikely that a marina
would ever be permitted under the statutes now regulating
Biscayne Bay. There is, no;:;.evidentiary:.suppor_t for including:. any
20
part of Biscayne Bay in the acreage subject to the small-scale
FLUM Amendment because of a possible marina so as to support the
Petitioners' claim that Ordinance 12911 should not have been
processed as a small-scale amendment.
Suitability and Compatibility of FLUM Amendment
36. The Site is a parking lot. It is not environmentally
sensitive and has no significant natural or archeological
resources that would make it unsuitable for High Density
Multifamily Residential future land use.
37. Major Institutional accommodates the Vizcaya Museum
and Gardens and the Mercy Hospital complex, which are compatible
with and actually part of Coconut Grove. However, as pointed
out by the City and the Intervenors, Major Institutional also
allows future land uses that could be less compatible with the
surrounding land uses, including the Vizcaya Museum and Gardens
and the residential neighborhoods of Coconut Grove. While a
lower density residential future land use would be appropriate
and compatible with the surrounding uses, the issue in this case
is the density allowed by H/D Residential --up to 150 residential
units per acre, which Petitioners contend is incompatible with
the surrounding land uses and inconsistent with previous efforts
to protect Vizcaya and Coconut Grove from the intrusion of high -
density residential development. The Petitioners also contend
that the FLUM Amendment is not suitable on the bayfront.
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(a) Suitability on the Bayfront
38. The Petitioners contend that H/D Residential is not
suitable on the bayfront for reasons related mostly to
aesthetics and views. While it certainly would be possible and
reasonable for a community to decide not to allow dense and
intense development on significant water bodies, it was not
proven by a preponderance of the evidence that the City has done
so, or that H/D Residential is unsuitable on the Site for that
reason.
(b). 2005 Evaluation and Appraisal Report
39. The City's 2005 Evaluation and Appraisal Report .("2005
EAR") focused on two citywide issues relevant here: (1) the
preservation and enhancement of historic and similar resources;
and (-2):neighborhood integrity and the need to protect existing
neighborhoods from incompatible development.
(c) Vizcaya Museum Gardens
40. Industrialist James Deering built Vizcaya in 1916 as a
winter home. The land Deering purchased in the early 1900s was
developed into a 180-acre estate that included his
Mediterranean -style home, Italianate.gardens,,farms, orchards,
and lagoons. The mansion and gardens were designed by three
well-known architects and designers and constructed using local
materials. ;
22
41. When Deering died nine years later in 1925, Vizcaya
was left to his heirs, who eventually sold the south gardens and
western agricultural fields to the Catholic Diocese. The
southern acreage (which included the Site) was later developed
into a church (Ermita de la Caridad), a school (La Salle), and
medical and hospital facilities (Mercy). The Diocese sold the
western acreage, which was eventually developed into single-
family -home subdivisions.
42. In the 1950s, the Deering heirs sold the remaining
property, consisting of the mansion, gardens, and farm
buildings, to Dade County.
43. In 1952, Dade County opened Vizcaya to the public.
Since then, the County has operated Vizcaya as a museum, which
has welcomed thousands of visitors annually and is a popular
site for tourists, social functions, and photo shoots.
44. The Vizcaya mansion and gardens have historical,
architectural, and botanical significance. The mansion is an
"architectural masterpiece" and an "outstanding example of
Italian Renaissance Revival architecture." Vizcaya has been on
the National Register of Historical Places since 1977; it was
designated as a City Heritage Conservation District in 1984;
and, in 1994, it was designated a National Historical Landmark --
one of only three in Miami -Dade County.
23
45. The southernmost part of Vizcaya's gardens is
approximately 1,600 feet from the FLUM Amendment Site, and the
mansion is approximately 2,300 feet from the Site.
46. For the specific purpose of objecting to the 300 Grove
Bay project, The Vizcayans commissioned the Vizcaya Viewshed
Impact Assessment, which is referred to as the "balloon" study,
and the Vizcaya View Corridor Study. According to the balloon
study, the 300 Grove Bay condominiums would be visible from the
balcony on the south side of the.mansion. Although the balloon
study was based on.the-original Project building heights and not
re -done using the reduced heights in the zoning and MUSP
approvals, the Petitioners' witnesses said that the Project
would still be visible through the existing landscape, even at
the reduced height. The Petitionerswitnesses--opined that the
development of 300. Grove Bay would "overpower and overshadow"
the gardens on the south side of the mansion.
47. No federal, state, or. local statutes, rules or
ordinances, including those relevant to this proceeding, protect
the view corridors of Vizcaya's gardens.
(d) Coconut Grove
48. The area known as Coconut Grove was settled in the
late 1800s and was considered 'off the beaten path" from the
City which was incorporated in 1896.: Coconut Grove was
incorporated as a separate municipality in 1919, but in 1925 it
24,,
was annexed to the City, as were five other municipalities.
Petitioners' witnesses observed that Coconut Grove is the only
one of these towns that has continued to retain a unique and
recognizable character. Vizcaya and Mercy Hospital, including
the parking lot site, are located in the northern area of
Coconut Grove.
49. Coconut Grove is primarily, but not entirely, a
residential community. Coconut Grove has an active "downtown"
business, commercial, and hotel district. The Petitioners
maintained that the northern area of Coconut Grove is primarily
single-family residential. However, it also includes a non-
conforming high -density development (Grove Isle), medium -density
residential, Mercy Hospital and its professional buildings, an
assisted living facility, a school, a church, and governmental
office buildings, as well as two museums (Vizcaya and the Museum
of Science).
50. A Coconut Grove Planning Study was commissioned and
printed in 1974, but the City never adopted it; therefore, it
has no official status.
(e) The Coconut Grove Neighborhood Conservation District
51. In 2005, the City adopted by ordinance the Coconut
Grove Neighborhood Conservation District (NCD-3). See § 803.3,
City Zoning Code. According to the Code, a Neighborhood
Conservation District is an "umbrella land use designation
25
overlay," which allows for the tailoring of a master plan or of
design guidelines for any area that meets certain criteria. See
§ 800, City Zoning Code.
52. The intent of the Coconut Grove Neighborhood
Conservation District is to "[p]reserve the historic, heavily
landscaped character of Coconut Grove's residential areas and
enhance and protect Coconut Grove's natural features such as
tree canopy and green space." § 803.1, City Zoning Code.
53. NCD-3 does not specify the High -Density, Multifamily
Residential (R-4) zoning classification. But that does not mean
that NCD-3 does not allow R-4. NCD-3 is enabling legislation
that imposes greater restrictions within a geographic "overlay"
for the zoning classifications addressed in Section 803.3. So
far, NCD-3 has not addressed G/I'and R-4 but only Single -Family
Residential (R-1) and Commercial Districts. See § 803.3, City
Zoning Code. For that reason, the ordinance does not apply to
the Site.
(f) The "Grovenor Ordinance:"
54. The so-called Grovenor Ordinance was the City's
response in July 2004 to the construction of a high -density
residential project on property in -Coconut Grove zoned "G/I
Government and Institutional." The Grovenor Ordinance amended
subsection of Section 401 of the City's Zoning Code to provide
in pertinent part
26.
G/I Government and Institutional
Intent and Scale:
The government/institutional category
allows the development of facilities for
federal, state and local government
activities, major public or private health,
recreational, cultural, religious, or
educational activities, major transportation
facilities, public utilities, and public and
private cemeteries. Uses ancillary to these
uses are allowed to a maximum density and
intensity equivalent to the least intense
abutting zoning district, subject to the
same limiting conditions.
Intensity:
For residential uses: As for the least
intense abutting zoning district.
Permitted Principal Uses:
Governmental and institutional uses as
described in the City of Miami Comprehensive
Development Plan designation of "Major
Institutional, Public Facilities,
Transportation and Utilities", . . however
for accessory non -governmental or
institutional uses -only such uses as may be
permitted as principal uses in the least
intense abutting zoning district . .
§ 401, City Zoning Code.
55. The Grovenor Ordinance applies to property that is
zoned G/I. The City's and Intervenors' witnesses testified that
it applies only if G/I-zoned property ceases to be used for
governmental or institutional purposes and is used instead for
residential purposes. However, from the language of the
27
ordinance itself, it is beyond fair debate that it also applies
to G/I-zoned property that is used both for government or
institutional uses and for ancillary residential uses. Clearly,
without a FLUM change to a higher -density residential zoning
category, in Coconut Grove the residential use on the Site would
be restricted to the zoning classification of the "least intense
abutting zoning district."
56. Since it pertains to zoning, the Grovenor Ordinance
does not directly apply to the issue of whether a FLUM amendment
is "in compliance." However, it has some bearing on the proper
interpretation and application.; of the "pyramid concept" of the
MCNP's future land use designations, which is important to the
issues for determination in this case.
(g) The Pyramid Concept
57. The City and the Intervenors rely heavily on their
interpretation of the MCNP's pyramid concept of cumulative
future land use designations to support the FLUMAmendmentin
this case. According to them, the FLUM Amendment is compatible
with surrounding land uses because high -density multi -family
residential use already is a: permitted use as a matter of right
for land designated "Major Institutional. Similarly, they
maintain that, under the -"pyramid" concept.., high -density multi-
family residential use is permitted : as a matter of right in all
of the commercially.designated .land in Coconut -Grove. But it is
28
beyond fair debate that their interpretation of the "pyramid
concept" is incorrect.
58. As indicated, the "'pyramid concept' of cumulative
inclusion" applies "except as otherwise noted." In the Major
Institutional future land use category, it is noted that
residential facilities with densities equivalent to "High
Density Multifamily Residential" (i.e., up to 150 units per
acre) are permitted only if "ancillary" to the listed major
institutional uses. Similarly, in the General Commercial future
land use category, it is noted that high -density residential
uses "are allowed by Special Exception only, upon finding that
the proposed site's proximity to other residentially zoned
property makes it a logical extension or continuation of
existing residential development and that adequate services and
amenities exist in the adjacent area to accommodate the needs of
potential residents." If the "pyramid concept" authorized high -
density multi -family residential use as a matter of right on
land designated either Major Institutional or General
Commercial, there would be no reason to limit those uses by
notation.
59. Under the correct interpretation of the "pyramid
concept" in the MCNP, free-standing high -density multi -family
residential use of up to 150 units per acre is not already
29
permitted as of right in either the Major Institutional or the
General Commercial land use categories.
(h) Compatibility
60. Notwithstanding the correct interpretation of the
"pyramid concept in the MCNP, the Petitioners failed to prove
by a preponderance of the evidence that High Density Multi
Family Residentialfutureland use on the Site is incompatible
with the surrounding uses or is inappropriate. The lower
density residential and other less intense future land uses in
the MCNP are buffered from the Site by Biscayne Bay and by
Medium. Density Multifamily Residential_ future land use. Vizcaya
is buffered from the Site. by Mercy Hospital and related medical
facilities and by La Salle High School The compatibility of a
specific density of residential development on the Site with
less dense residential use in Coconut Grove and with Vizcaya,
including issues regarding building height and intrusion into
Vizcaya's view corridors, can be addressed through zoning and
MUSP proceedings.
Data and Analysis
61. Data and analysis is another matter. Because of their
incorrect interpretation of the "pyramid concept" in the MCNP,
the City and the Intervenors took the position that.: the FLUM
Amendment constitutes "down -planning" and that the City was not
required to perform the same level of analysis as it would have
30
if the amendment sought a designation that permitted uses of
greater impact, density, and/or intensity.
62. The experts disagreed on whether "down -planning" is a
concept in land use planning that can eliminate or minimize the
requirement for data and analysis. In any event, the FLUM
Amendment in this case could not be characterized as "down -
planning." See Findings 57-59, supra. The MCNP's pyramid
concept does not dispense with the need for data and analysis,
and the data and analysis in this case was minimal and
inadequate.
63. The primary data and analysis in this case was the
"Analysis for Land Use Change Request" (Analysis) that resulted
from the City staff's review. After identifying the proposed
land use designation and the uses permitted on it the Analysis
recommended "Approval" of the FLUM Amendment and made four
findings in support of "the position that the existing land use
pattern in this neighborhood should be changed. These findings
are as follows:
It is found that the subject property is
part of the Mercy Hospital and do [sic] not
front South Miami Avenue.
It is found that the "Major Institutional,
Public Facilities, Transportation &
Utilities" category allows 150 residential
units per acre and the requested "High
Density Multifamily Residential" designation
will allow a maximum density of 150
residential units per acre.
31
It is found that the requested change to
"High -Density Multifamily Residential"
designation will allow greater flexibility
in developing the property at the above
described location and therefore should be
changed as part of the MUSP.
It is found that MCNP Goal LU-1 maintains a
land use pattern that (1) protects and
enhances the quality of life in the city's
residential neighborhoods, and (5) promotes
the efficient use of land and minimizes land
use conflicts.
Id. (Emphasis in original.)
64. As to the City's third finding, a particular
developer's flexibility is irrelevant to the determination of
whether the land use change is consistent with the MCNP. To the
extent that flexibility in general could be relevant to the
inquiry, the finding was incorrect. While allowing a free-
standing high -density residential project that would not
otherwise be possible, the FLUM Amendment eliminates all of the
non-residential uses permitted within the "Major Institutional"
category.
65. The second finding was based on the City's incorrect
interpretation of the "pyramid concept" of the MCNP, 'which led
the City to wrongly equate a primary use with an ancillary use
and to simply assume no population increase would result from
the FLUM Amendment, and that the FLUM Amendmentwouldresult in
"down -planning."
32
66. Attached to the City's Analysis was a separate
"Concurrency Management Analysis," which 'addressed in summary
form the data and analysis generated by the applicant and by the
City's staff to address the "impact of [the] proposed amendment
to land use map within a transportation corridor." The
"Concurrency Management Analysis" also was predicated on the
assumption that the FLUM change to HD Residential would not
increase population. Essentially, it assumed without any data
or analysis that infrastructure was available for 1,008 people
living on the Site, even though the Site is being used as a
parking lot at this time. This data and analysis was inadequate
to support the FLUM Amendment.
67. As to transportation, there was additional evidence of
a traffic analysis performed by the City in support of the
Project's MUSP. This MUSP traffic analysis utilized a proper
starting point of zero population on the Site at this time. It
then projected the impact of the addition of 300 units. This
was more than the 225 units ultimately approved in the MUSP but
did not analyze the much larger potential increases in traffic
that would be allowed under the FLUM Amendment, which is not
limited to 300 units. There also was no data or analysis to
show that limiting the analysis to 300 units was reasonable. It
also only looked two years into the future. The MUSP traffic
analysis also did not address the 2005 EAR finding that Bayshore
33
Drive will be at level of service F by year 2025, without even
any development on the Site. In short, the MUSP traffic
analysis was inadequate to support the FLUM Amendment.
68. The City and Intervenor took the position that the
designation of the entire City as an urban infill area meant
that every parcel is appropriate for high -density multi -family
residential development. This is not correct. It is still
necessary to look at comprehensive plan to determine which areas
are appropriate for that kind of future land use and to have
data and analysis to support it. See Payne et al. v. City of
Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA
Aug. 8, 2007) (on motion for rehearing).
69. For these reasons, the Petitioners proved by a
preponderance of the evidence that the:data and analysis
supporting the FLUM Amendment were inadequate,
Inconsistency with City's Comprehensive Plan
70. The Petitioners failed to prove beyond fair debate
that the FLUM Amendment is inconsistent with any MCNP goals,
objectives, or policies.
State Comprehensive Plan
71: Petitioners did not prove that the FLUM Amendment at
issue is inconsistent with the State Comprehensive Plan.
34-
CONCLUSIONS OF LAW
Small -Scale Amendment
72. A small-scale development amendment may be adopted if
the "proposed amendment involves a use of 10 acres or fewer."
§ 163.3187(1) (c) (1) , Fla. Stat.
73. The word "use" in that statute refers to the property
that is the subject of the FLUM Amendment and is to be
developed --here, the Site to be developed for residential use.
It does not refer to adjoining property that will not be
developed for residential use and on which the land use
designation will not be changed. Therefore, "gross lot area"
under the City Code is not relevant to the determination whether
a "proposed amendment involves a use of 10 acres or fewer." Id.
74. The FLUM Amendment at issue involves the use of the
Site and, at most, the Perimeter Road, and Halissee Street,
which totals less than ten acres. For that reason, it qualified
for processing as a small-scale amendment under Section
163.3187 (1) (c) 1., Florida Statutes.
75. Petitioners contend that the decision in St. George
Plantation Owners' Ass'n, Inc. v. Franklin County, et al., Case
No. 96-5124GM, 1997 Fla. ENV LEXIS 37 (Admin. Comm'n Mar. 25,
1997), requires a different result. In St. George, the site was
a 9.6-acre piece of a 58-acre parcel, know as the Resort Village
Property, which was owned by the intervenors. The 58-acre
35
parcel was the subject of a Development of Regional Impact
(DRI), which the intervenor planned to develop in phases. Phase
I involved developing the 9.6 acres into four hotels, commercial
and retail space, a beach club, a conference center,
recreational facilities, and a wastewater treatment plant.
Development of the planned wastewater treatment facility
required an additional five acres for subsurface absorption
beds. The County and intervenors acknowledged that the
absorption beds were integral to the design and successful
operation of the wastewater treatment plant, which was required
to serve the Phase I development. In determining that the
proposed amendment was not "small-scale," the-ALJ concluded that
"the beds and plant are a single, interrelated system, and that
the County could not "change the land use designation for a
portion of the facility while ignoring the remainder." Id. at
*17.
76. The FLUM Amendment at issue " here is not analogous -to
the amendment in St. George. Here, there is no phased project;
TRG-MH has not purchased more than the 6.72-acre parcel; and
there is no planned facility, a portion of which requires the
development of adjoining property.
36
The Compliance Criteria
77. Section 163.3184(1)(b), Florida Statutes, states:
"In compliance" means consistent with the
requirements of ss. 163.3177, 163.3178,
163.3180, 163.3191, and 163.3245, with the
state comprehensive plan, with the
appropriate strategic regional policy plan,
and with chapter 9J-5, Florida
Administrative Code, where such rule is not
inconsistent with this part and with the
principles for guiding development in
designated areas of critical state concern.
Section 163.3177(2), Florida Statutes, and Florida
Administrative Code Rule 9J-5.005(5)(a) require that a
comprehensive plan be internally consistent. Any amendment to
the FLUM must be internally consistent with the other elements
of the comprehensive plan. See Coastal Development of North
Fla., Inc. v. City of Jacksonville, 788 So. 2d 204, 208 (Fla.
2001) .
Burden and Standard of Proof
78. Since this is a small-scale amendment, Section
163.3187(3)(a), Florida Statutes, applies and provides:
In the proceeding, the local government's
determination that the small scale
development amendment is in compliance is
presumed to be correct. The local
government's determination shall be
sustained unless it is shown by a
preponderance of the evidence that the
amendment is not in compliance with the
requirements of this Act.
37
However, in a "noncompliance" proceeding under Section
163.3184(10), Florida Statutes (where DCA has preliminarily
reviewed a comprehensive plan or plan amendment and found it not
"in compliance"), the statute provides, in pertinent part: "The
local government's determination that elements of its plans are
related to and consistent with.each other shall be sustained if
the determination is fairly debatable." Section 163.3187(3)(a)
omits the sentence regarding internal consistency contained in
Section 163.3184(10). But it would be illogical not to extend
the same deference to the localgovernment in a small-scale
amendment proceeding. For that reason, the fairly debatable
standard is applied to the Petitioners' allegations of internal
inconsistency.
79. "The fairly debatable standard of review is a highly
deferential standard requiring approval of a planning action if
reasonable persons could differ as to its propriety." Martin v.
Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). If the internal
consistency of an amendment with other provisions within a
comprehensive plan is open to dispute on logical grounds, the
local government's determination that the amendment does not
create an internal inconsistency within .the comprehensive plan
must prevail. See Hussey, -et al.-v. Collier County, et al.,
DOAH Case Nos. 02-3795GM and 02-3796GM, Recommended Order, 2003
Fla. Div. Adm. Hear. LEXIS 304, at *56 (DCA Jul. 22, 2003; DOAH
38
Apr. 29, 2003), quoting Yusem at 1295. See also Martin County
v. Section 28 Partnership Ltd., 772 So. 2d 616, 621 (Fla. 4th
DCA 2000) (if there is "evidence in support of both sides of a
comprehensive plan amendment, it is difficult to determine that
the County's decision was anything but 'fairly debatable'"). A
plan amendment creates an internal inconsistency only when it
conflicts with other provisions in the comprehensive plan.
Suitability and Compatibility
80. The Petitioners did not prove by a preponderance of
the evidence that High Density Multifamily Residential future
land use on the Site is incompatible with surrounding land uses.
(A fortiori, they did not prove beyond fair debate that the FLUM
Amendment was internally consistent with MCNP provisions
requiring compatibility of land uses.) Cf. Conclusion 84,
infra.
Data and Analysis
81. Section 163.3177(8), Florida Statutes, states: "All
elements of the comprehensive plan . . . shall be based upon
data appropriate to the element." The implementing rule states:
All goals, objectives, policies, standards,
findings and conclusions within the
comprehensive plan and its support
documents, and within plan amendments and
their support documents, shall be based upon
relevant and appropriate data and the
analysis applicable to each element. To be
based on data means to react to it in an
appropriate way and to the extent necessary
39
indicated by the data available on that
particular subject at the time of adoption
of the plan or plan amendment at issue.
82. As pointed out by the City and the Intervenors, the
Site was studied and analyzed at the time of the adoption of the
MCNP and through certain amendment cycles. Data and analysis
supporting earlier comprehensive plans may support a subsequent
amendment. See Wilson v. City of Cocoa, DOAH Case No. 90-
4821GM, (DOAH, Aug. 8, 1991; DCA, Sept. 11, 1991), cited in
Geraci v. Hillsborough County, DOAH Case No. 95-0259GM, 1999
Fla. ENV LEXIS 11 (DOAH Oct. 14, 1998; DCA, Jan. 12, 1999).
Nothing about the Site has changed, and it does not possessany
environmental orarcheologicalsignificance that would require a
different analysis. However, the FLUM change to High Density
Multifamily Residential was significant and necessitated more
data and analysis.
83. Petitioners proved by a preponderance of the evidence
that the FLUM Amendment was dot based on adequate data and
analysis primarily because of the City's incorrect
interpretation of the "pyramid concept" of the MCNP, which led
the City to simply assume that no population increase would
result from the FLUM Amendment.
Internal Consistency
84. Petitioners failed to prove beyond fair debate that
the FLUM Amendment is inconsistent with any MCNP goals,
objectives, or policies.
State Comprehensive Plan
85. The State Comprehensive Plan establishes general goals
and policy rather than the type of minimum criteria that are set
forth in Chapter 9J-5. Many of the provisions of the State
Comprehensive Plan apply to the State of Florida and its
agencies in planning on the state level, as opposed to local
governments. As a consequence, before a comprehensive plan
amendment can be found inconsistent with the State, careful
consideration has to be given to the entirety of that more
general plan, as well as to the entirety of the local
comprehensive plan. See § 163.3177(10) (a), Fla. Stat. (State
Comprehensive Plan "shall be construed as a whole and no
specific goal and policy shall be construed or applied in
isolation from the other goals and policies in the plans.")
86. Section 163.3177(10)(a), Florida Statutes, also
states: "[F]or the purpose of determining whether local
comprehensive plans are consistent with the state comprehensive
plan and the appropriate regional policy plan, a local plan
shall be consistent with such plans if the local plan is
"compatible with" and "furthers" such plans. The term
41
"compatible with" means that the local plan is not in conflict
with the state comprehensive plan or appropriate regional policy
plan. The term.. -"furthers" means to take action in the direction
of realizing goals or policies of the state or regional plan."
87. In this case, the Petitioners proved that the data and
analysis were insufficient to support the FLUM Amendment at
issue. However, the Petitioners did riot prove that the FLUM
Amendment was inconsistent with the MCNP or the State
Comprehensive Plan.
Disposition
88. Section 163.3187(3)(b)1., Florida Statutes, provides
in pertinent part: .."if theadministrative law judge recommends
that the small scale development amendment be found not.- in
compliance, the administrative law judge shall submit the
recommended order to the Administration Commission for final
agency action."
RECOMMENDATION
Based on the foregoing Findings of Fact: and Conclusions of
Law, it is
RECOMMENDED that the Administration Commission enter a
final order that the FLUM Amendment adopted by City of Miami
Ordinance 12911 is not "in compliance," as defined by Section
163 .3184 (1.) (b) Florida Statutes.
DONE AND ENTERED this 10th day of July, 2008, in
Tallahassee, Leon County, Florida.
196QtA-8462
J. LAWRENCE JOHNSTON
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this loth day of July, 2008.
COPIES FURNISHED:
Barbara Leighty, Clerk
Transportation and Economic
Development Policy Unit
The Capitol, Room 1801
Tallahassee, Florida 32399-0001
Jason Gonzalez, General Counsel
Office of the Governor
The Capitol, Suite 209
Tallahassee, Florida 32399-0001
Jorge L. Fernandez, City Attorney
City of Miami
Miami Riverside Center, Suite 945
444 Southwest 2nd Avenue
Miami, Florida 33130-1910
Patrick J. Goggins, Esquire
Patrick J. Goggins, P.A.
Sun Trust Building, Suite 850
777 Brickell Avenue
Miami, Florida 33131-2811
43
John Charles Lukacs, Esquire
John C. Lukacs, P.A.
201 Sevilla Avenue, Suite 305
Coral Gables, Florida 33134-6616
H. Ray Allen, II, Esquire
Carlton Fields, P.A.
Post Office Box 3239
Tampa, Florida 33601-3239
Stephen J. Darmody, Esquire
Shook, Hardy & Bacon, LLP
Miami Center - Suite 2400
201 South Biscayne Boulevard
Miami, Florida 33131-4339
Lewis W. Fishman, Esquire
Lewis W. Fishman, P.A.
Two Datran`Center, Suite 1121
9130 South Dadeland Boulevard
Miami, Florida 33156-7848
John K. Shubin, Esquire
Shubin & Bass, P.A.
46 Southwest First Street, Third Floor
Miami, Florida 33130-1610
NOTICE OF RIGHT TO SUBMIT.EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order.:. Any exceptions_
to this Recommended Order should be filed with:the;agency that
will issue the Final Order in this case.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE VIZCAYANS, INC., a florida )
not -for -profit corporation; )
GROVE ISLE ASSOCIATION, a )
florida not -for -profit )
corporation; CONSTANCE STEEN; )
JASON E. BLOCH; and GLENCOE )
NEIGHBORHOOD ASSOCIATION, INC., )
a florida not -for -profit )
corporation, )
Petitioners, )
vs. )
CITY OF MIAMI, )
Respondent, )
and )
)
TRG-MH VENTURE, LTD, and MERCY )
HOSPITAL, INC., a not -for- )
profit florida corporation, )
Intervenors. )
Case Nos. 07-2498GM
07-2499GM
SUPPLEMENT TO RECOMMENDED ORDER AFTER REMAND
On October 20, 2008, the Administration Commission entered
an Order of Remand in this case. The Order of Remand ruled, as a
matter of law within the Administration Commission's substantive
jurisdiction over Sections 163.3184 and 163.3187, Florida
Statutes, that the "fairly debatable" standard of proof cited in
Finding of Fact 70 and Conclusions of Law 78, 79, 80, and 84 of
the Recommended Order entered on July 10, 2008, was incorrect and
that the "preponderance of the evidence" standard should have
Exhibit B
been used, which requires "reapplying the correct standard of
proof to the Findings of Fact containing the incorrect standard
of proof and reweighing the evidence." Based on that ruling, the
case was remanded "for further proceedings consistent with" the
Order of Remand.
Based on the Order of Remand, the consistency of Ordinance
12911 with the Miami Comprehensive Neighborhood Plan (MCNP) has
been reconsidered, using the preponderance of the evidence
standard of proof. Based on this reconsideration, Finding of
Fact 70 of the Recommended Order is amended to read:
70. Petitioners contend that the FLUM Amendmentadoptedby
Ordinance 12911 is inconsistent with numerous MCNP goals,
objectives, and policies.
(a) Most of the goals, objectives, andpolicies: cited by
Petitioners provide authority or set standards or guidance for
the adoption of land development regulations (LDRs) and
development orders, or require continued enforcement of LDRs, and
do not . apply to the FLUM Ametdinent. ' Petitioners didnot prove by
a preponderance of evidence that the FLUM'Amendment is
inconsistent with those MCNP provisions.
(b) A few7of the MCNP provisions: cited by Petitioners
require, compatibility of land uses, and Petitioners failed to
prove by a. preponderance of the evidence that the FLUM'Amendment
is incompatible with surrounding. land uses oris. inappropriate.
See Finding of -Fact: 60,. supra. _Petitioners did-not,prove by a
preponderance of evidence that the FLUM Amendment is inconsistent
with those MCNP provisions.
(c) A few of the MCNP provisions cited by Petitioners
relate to the Coconut Grove Neighborhood Conservation District,
which does not apply to the FLUM Amendment. See Finding of Fact
53, supra. Petitioners did not prove by a preponderance of
evidence that the FLUM Amendment is inconsistent with those MCNP
provisions.
(d) Policy LU-1.1.11 is the City's designation of the
entire City, excluding Virginia Key, Watson Island, and the
uninhabited islands of Biscayne Bay, as an Urban Infill Area.
The Policy further states that "the concentration and
intensification of development around centers of activity shall
be emphasized with the goals of enhancing the livability of
residential neighborhoods and the viability of commercial areas.
Priority will be given to infill development on vacant parcels,
adaptive reuse of underutilized land and structures, and the
redevelopment of substandard sites." The FLUM Amendment site is
not within a listed activity center or commercial center, and the
FLUM Amendment does not further this priority (or other similar
priorities relating to LDRs, such as Policy LU-1.1.10, Policy HO-
1.1.9, and Policy HO-2.1.4), but it does not conflict with any of
those provisions, and Petitioners did not prove by a
preponderance of the evidence that the FLUM Amendment is
inconsistent with any of them.
3
(e) Goal LU-2 states that the City should preserve and
protect the heritage of the City of Miami through the
identification, evaluation, rehabilitation, adaptive reuse,
restoration and public awareness of Miami's historic,
architectural and archaeological resources. Objective LU-2.4
states that the Cityy should increase the number of historic
structures that have been preserved, rehabilitated or restored,
according to the U.S. Secretary of the Interior's Standards for
Rehabilitation. Policy LU-2.4.4 states that the City will
continue to work with other local governments that have title to
properties of major historic or architectural significance to
ensure the conservation, preservationand adaptive and sensitive
reuse of such properties. Petitioners did not prove by
preponderance o:fsthe evidence. that the FLUM Amendment is
inconsistent with any of those provisions.
(f:) Goal TR-1 states that the City will maintain an
effective and cost-efficient traffic circulation network.
Objective TR-1.1 provides that roadways will operate at the
appropriate designated -:level of service. While it was proven
that there was insufficient data and analysis to determine
whether the FLUM Amendment would result in compliance with those
provisions, Petitioners did not prove by a preponderance of the
evidence that the FLUM Amendment is inconsistent with them.
(g) Goal PR-1 is to [p] rov:ide adequate opportunities.: for.
active and passive recreation to all .city residents." Objective
PR-1.1 is to "[i]ncrease public access to all identified
recreation sites, facilities, and open spaces including the Miami
River and beaches and enhance the quality of recreational and
educational opportunities for all age groups and handicapped
persons within the city's neighborhoods." Petitioners did not
prove by a preponderance of the evidence that the PLUM Amendment
is inconsistent with these provisions. (Policies PR-1.1.11 and
PR-1.1.13 apply to LDRs.)
(h) Goal CM-1 is to maintain, protect, and enhance the
quality of life and appearance of Miami's coastal zone including
the preservation of natural resources as well as the enhancement
of the built environment. Objective CM-1.1 is to preserve and
protect existing natural systems, including wetlands, the
beach/dune system of Virginia Key and Biscayne Bay, and improve
water quality in the Miami River, its tributaries, and the Little
River. Objective CM-1.4 relates to LDRs, but Policy CM-1.4.1
states:
"The coastal zone of the city will adhere
of service standards
as adopted and amended in the
Improvements Element, and more specifically Policy
CM-2 is to improve public awareness, appreciation,
to the level
Capital
CI-1.2.3."
and use of
Miami's coastal resources by preserving traditional water -
dependent and water -related uses, ensuring adequate public access
to such uses, and minimizing user conflicts. Objective CM-2.1 is
to increase visual and physical access to Biscayne Bay and the
city's shoreline, where feasible. Goal CM-4 is to ensure public
5
safety and the protection of property within the coastal zone
from the threat of hurricanes. Objective CM-4.3 is to "ensure
that capital expenditures in the coastal do not encourage private
development that is subject to significant risk of storm damage."
Policy CM-4.3.1 to limit public expenditures for capital
facilities in the coastal high hazard area to "those required to
eliminate existing LOS deficiencies, maintain adopted LOS
standards in non -high hazard areas, improve hurricane evacuation
time, or reduce the threat to public health and safety from storm
events. (See Capital Improvements Policy 1.4.1.)" Goal CM-5 and
Objective CM-5.2 are similar to Goal LU-2 and Objective LU-2.4,
supra. Like Policies PR-1.1.11 and PR-1.1.13, Objective-CM-1.2,
Policies CM-2.1.1 and CM-2.1.7 apply to LDRs, not to the`FLUM
Amendment. While it'was proven`�that there was insufficient data
and analysis to determine whether the FLUM Amendment would result
in compliance with Objective CM-4.3 and Policy CM-4.3.1,
Petitioners did not prove by a preponderance of the evidence that
the FLUM Amendment is inconsistent withthem; or with any of the
other Coastal Management Element provisions.
(i) Goal NR-1 is to "Maintain, preserve, enhance, and
restore the quality of natural resources within the context of
the city's urban environment." Objective NR-1.1 is to
"[p]reserve and protect the existing naturalsystems within
Virginia Key; the Dinner Key spoil islands, and those portions of
Biscayne Bay that Ile within .the City's boundaries.": Petitioners.
did not prove by a preponderance of the evidence that the FLUM
Amendment is inconsistent with those provisions. (Policy NR-
1.1.6 applies to LDRs, not to the FLUM Amendment.)
(j) The Vizcayans' proposed recommended order cites to Goal
CI-1 and Objectives CI-1.1, CI-1.2, CI-1.3, and CI-1.4. These
inconsistencies were not alleged in the petitions, and were
waived, except to the extent that they are incorporated in other
alleged inconsistencies with MCNP provisions --namely, with
Objectives CM-1.4 and CM-4.3--which already have been addressed.
In any event, Objective CI-1.2 applies to LDRs, not the FLUM
Amendment; and while it was proven that there was insufficient
data and analysis to determine whether the FLUM Amendment would
result in compliance with some of these provisions, Petitioners
did not prove by a preponderance of the evidence that the FLUM
Amendment is inconsistent with them.
(k) Finally, Petitioners did not prove by a preponderance
of the evidence that the FLUM Amendment is inconsistent with the
MCNP as a whole.
7
DONE AND ENTERED this 24th day of October, 2008, in
Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921.-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 24th day of October, 2008.
COPIES FURNISHED:
Barbara Leighty, Clerk
Transportation and Economic
Development Policy Unit
The Capitol, Room 1801
Tallahassee, Florida 32399-0001
Jason Gonzalez, General Counsel
Office of the Governor
The:. Capit'ol,_: Suite 2,09
Tallahassee, Florida 32399-0001
Patrick J. Goggins, Esquire
Patrick J. Goggins, P.A.
Sun Trust Building, Suite 850
777 Brickell Avenue
Miami, Florida 33131-2811
John Charles Lukacs, Esquire
John C. Lukacs, P.A.
201 Sevilla Avenue, Suite 305
Coral Gables, Florida 33134
Stephen J. Darmody, Esquire
Shook, Hardy & Bacon, LLP
Miami Center - Suite 2400
201 South Biscayne Boulevard
Miami, Florida 33131
8`,'
H. Ray Allen, II, Esquire
Carlton Fields, P.A.
4221 West Boy Scout Boulevard, Suite 1000
Tampa, Florida 33607
Jorge L. Fernandez, City Attorney
City of Miami
Miami Riverside Center, Suite 945
444 Southwest 2nd Avenue
Miami, Florida 33130-1910
Lewis W. Fishman, Esquire
Lewis W. Fishman, P.A.
Two Datran, Suite 1121
9130 South Dadeland Boulevard
Miami, Florida 33156
John•K. Shubin, Esquire
Shubin & Bass, P.A.
46 Southwest First Street, Third Floor
Miami, Florida 33130-1610
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15
days from the date of this Supplement to Recommended Order After
Remand. Any exceptions to this Supplement to Recommended Order
After Remand should be filed with the agency that will issue the
Final Order in this case.
9
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO :
FROM :
Julie O. Bru
City Attorney
1
Priscilla A. Thompson, CMC
City Clerk
DATE:
SUBJECT:
April 7, 2009
FILE :
Final Order No. AC-09-002
Florida Administration Commission
Rescission of Ordinance No. 12911
REFERENCES:
ENCLOSURES: (4)
The City Clerk's Office is in receipt of your memorandum and the signed Final Order entered by
the Administration Commission on March 27, 2009 directing this office to rescind City of Miami
Ordinance No. 12911 and to issue a report as to the status of Ordinance No. 12911.
In accordance with your directive, please see the attached supporting documentation regarding
the rescission of Ordinance 12911.
PAT/PB
Enclosures
c: Pedro G. Hernandez, City Manager
Ana Gelabert-Sanchez, Director of Planning
City of Miami
Legislation
Ordinance: 12911
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.corr
File Number: 06-010601u Final Action Date: 4/26/2007
(RESCINDED ON MARCH 27, 2009 BY FINAL ORDER NO. AC-09-002 ISSUED BY STATE
OF FLORIDA ADMINISTRATIVE COMMISSION.)
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AMENDING ORDINANCE NO. 10544, AS AMENDED, THE FUTURE LAND USE
MAP OF THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN BY CHANGING
THE LAND USE DESIGNATION OF THE PROPERTY LOCATED AT
APPROXIMATELY 3663 SOUTH MIAMI AVENUE, MIAMI, FLORIDA, FROM
"MAJOR INSTITUTIONAL, PUBLIC FACILITIES, TRANSPORTATION AND
UTILITIES" TO "HIGH DENSITY MULTIFAMILY RESIDENTIAL"; MAKING
FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES;
CONTAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Miami Planning Advisory Board, at its meeting held on September 20, 2006 Item
No. 1, following an advertised public hearing, adopted Resolution No. PAB 06-080 by a vote of three
three (3-3), which operates as a recommendation of DENIAL of an amendment to Ordinance No.
10544, as amended.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted by
reference and incorporated as if fully set forth in this Section.
Section 2. The Future Land Use Map of Ordinance No. 10544, as amended, the Miami
Comprehensive Neighborhood Plan is hereby amended by changing the land use designation from
"Major Institutional, Public Facilties, Transportation and Utilities" to "High Density Multifamily
Residential" for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more
particularly described in "Exhibit A" attached and incorporated.
Section 3. It is found that this Comprehensive Plan designation change:
a) is necessary due to changed or changing conditions;
b) involves a residential land use of 10 acres or less and a density of less than 10 units per acre or
involves other land use categories, singularly or in combination with residential use, of 10 acres or less
and does not, in combination with other changes during the last year, produce a cumulative effect of
having changed more than 60 acres through the use of "Small Scale development" procedures;
City of Milani
Page 1 of 2 Printed On: 4/7/2009
arigMEO
File Number: 06-010601u Enactment Number: 12911
c) is one which involves property that has not been the specific subject of a Comprehensive Plan
change within the prior twelve months;
d) is one which does not involve the same owner's property within 200 feet of property that has
been granted a Comprehensive Plan change within the prior twelve months; the proposed amendment
does not involve a text change to goals, policies, and objectives of the local government's
comprehensive plan, but proposes a land use change to the future land use map for a site -specific
development; and
e) is one which is not located within an area of critical state concern.
Section 4. The City Manager is directed to instruct the Director of the Planning Department to
immediately transmit a certified copy of this Ordinance after its adoption on second reading to: the
Secretary, Florida Department of Community Affairs; the Executive Director, South Florida Regional
Planning Council, Hollywood, Florida; the Executive Director, South Florida Water Management
District, West Palm Beach, Florida; the Secretary, Department of Transportation, Tallahassee, Florida;
and the Executive Director, Department of Environmental Protection, Tallahassee, Florida.
Section 5. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with
the provisions of this Ordinance are repealed.
Section 6. If any section, part of section, paragraph, clause, phrase, or word of this Ordinance is
declared invalid, the remaining provisions of this Ordinance shall not be affected.
Section 7. This Ordinance shall become effective thirty-one (31) days after second reading and
adoption thereof pursuant and subject to §163.3187(3)(c), Fla. Stat. (2005). {1}
Footnotes:
{1} This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date
stated herein, whichever is later.
City of Miami
Page 2 of 2 Printed On: 4/7/2009
City of Miami
Master Report
Enactment Number: 12911
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
File Number: 06-010601u
File Type: Ordinance
Version: 2 Reference:
File Name: Land Use Change - 3663 S Mia Av
Status: Mayor's Office for
Signature
Controlling Body: Office of the City
Clerk
Introduced: 6/9/2006
Requester: Cost: Final Action: 4/26/2007
Title: (RESCINDED ON MARCH 27, 2009 BY FINAL ORDER NO. AC-09-002 ISSUED BY STATE OF
FLORIDA ADMINISTRATIVE COMMISSION.)
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AMENDING
ORDINANCE NO. 10544, AS AMENDED, THE FUTURE LAND USE MAP OF THE MIAMI
COMPREHENSIVE NEIGHBORHOOD PLAN BY CHANGING THE LAND USE DESIGNATION
OF THE PROPERTY LOCATED AT APPROXIMATELY 3663 SOUTH MIAMI AVENUE, MIAMI,
FLORIDA, FROM "MAJOR INSTITUTIONAL, PUBLIC FACILITIES, TRANSPORTATION AND
UTILITIES" TO "HIGH DENSITY MULTIFAMILY RESIDENTIAL"; MAKING FINDINGS;
DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A REPEALER
PROVISION AND A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
Sponsors:
Notes:
Indexes:
Attachments:
06-010601u - RESCISSION of Ordinance 12911 documentation.pdf,06-010601u - PAB Fact
Sheet.pdf,06-010601u - Analysis.pdf,06-010601u - Concurrency Report.pdf,06-010601u - Comp Plan
Map.pdf,06-010601u - PAB Zoning Map.pdf,06-010601u - Aerial Photo.pdf,06-010601u - PAB
Legislation.pdf,06-010601u - PAB Application Documents.pdf,06-010601u PAB Reso.PDF,06-010601u
CC 03-27-07 Application & Supporting Docs.pdf,06-010601u CC Legislation (Version 2).pdf,06-010601u
& 06-01060zc CC Exhibit A (0ld).pdf,06-010601u CC FR Fact Sheet.pdf,06-010601u Submittal Letter
Lapin & Leichtling.pdf,06-010601u Submittal Letter Levine & Partners, P.A..pdf,06-010601u Submittal
Letter Luft Consulting, Inc..pdf,06-010601u Submittal Letter Tucker Gibbs P.A..pdf,06-010601u
Submittal Letters of Support.pdf,06-010601u Submittal Map.pdf,06-010601u Submittal Opposition
Memo.pdf,06-010601u Submittal Petition.pdf,06-010601u Submittal Presentation.pdf,06-010601u
Submittal Presentation Grove Bay.pdf,06-01060zc, 06-010601u & 06-01060mu CC Zoning Map -
Updated.pdf,06-010601u CC SR 03-22-07 Fact Sheet.pdf,06-010601u, 06-01060zc & 06-01060mu CC
Exhibit A (Revised Legal).pdf,06-010601u CC 04-26-07 Application & Supporting
Docs.PDF,06-010601u Submittal - News Article.pdf,06-010601u Submittal E-mail John
Lukacs.pdf,06-010601u Submittal Grove Bay Residences Motion.pdf,06-010601u Submittal Grove Bay
Residences MUSP.pdf,06-010601u Submittal Illustration of Devp. Site.pdf,06-010601u Submittal Jack
Luft, Luft Consulting.pdf,06-010601u Submittal Letter Hadley Williams.pdf,06-010601u Submittal Letter-
Natioanal Trust for Historic Preservation.pdf,06-010601u Submittal Letter- US Dept of the Interior
National Park Serv..pdf,06-010601u Submittal Photos- Lucia Dougherty.pdf,06-010601u Submittal
presented by Goggins.pdf,06-010601u Submittal presented by Henry Iler.pdf,06-010601u Submittal
presented by John Lukacs.pdf,06-010601u Submittal Report on the Impact by Shubin.pdf,06-010601u
Submittal Report on the Impact by Subratabasu.pdf,06-010601u Submittal Resolution presented by Ivan
Rodriquez.pdf,06-010601u Submittal Richard J. Heisenbottle.pdf,06-010601u Submittal Shoreline Devp.
Review Committee Reso..pdf,06-010601u Submittal Size Comparison - Ellie Haydock.pdf,06-010601u
Submittal transcripts.pdf,06-010601u Submittal viewshed impact assessment.pdf,06-010601u CC SR Fact
Sheet 04-26-07.pdf,06-010601u Submittal Comm. Sarnoff Letter.pdf,06-010601u E-mail Mayor's
City of Miami Page I Printed on 4/7/2009
City of Miami
Master Report
Enactment Number: 12911
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
Response to Comm. Sarnoff.pdf,06-010601u Comm Sarnoff Response to Mayor's Letter.pdf,06-010601u
Mayor's Response to Comm. Sarnoff - Grove Bay Residences.pdf,
History of Legislative File
Version: Acting Body: Date: Action: Sent To: Due Date: Return Date: Result:
1 Planning Advisory Board 7/19/2006 CONTINUED
1 Planning Advisory Board 9/20/2006 Recommended
Approval
2 City Commission 1/25/2007 PASSED ON FIRST
READING
2 City Commission 1/25/2007 DENIED
2 City Commission 3/27/2007 CONTINUED
2 City Commission 3/27/2007 DENIED
2 Office of the City 4/25/2007 Reviewed and
Attorney Approved
2 City Commission 4/26/2007 DENIED
Planning & Zoning -
- City Commission
2 City Commission 4/26/2007 DENIED
2 City Commission 4/26/2007 ADOPTED
2 City Commission 4/26/2007 ADOPTED
2 Office of the Mayor 5/7/2007 Signed by the Mayor Office of the City
Clerk
2 Office of the City Clerk 5/10/2007 Signed and Attested
by City Clerk
2 Office of the City Clerk 4/3/2009 RESCINDED BY
ADMINISTRATIVE
ORDER
Action Note: Rescinded on March 27, 2009 by Final Order No. AC-09-002 issued by State of Florida
Administrative Commission
Pass
Fail
Pass
Fail
Pass
Fail
Fail
Fail
Pass
Pass
City of Miami Page 2 Printed on 4/7/2009
City of Miami
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
Meeting Minutes
Thursday, April 26, 2007
9:00 AM
PLANNING AND ZONING
City Hall Commission Chambers
City Commission
Manuel A. Diaz, Mayor
Angel Gonzalez, Chairman
Joe Sanchez, Vice Chairman
Marc David Sarnoff, Commissioner District Two
Tomas Regalado, Commissioner District Four
Michelle Spence -Jones, Commissioner District Five
Pedro G. Hernandez, City Manager
Jorge L. Fernandez, City Attorney
Priscilla A. Thompson, City Clerk
City Commission
Meeting Minutes April 26, 2007
Jorge L. Fernandez (City Attorney): 14 and fif -- yeah, 14. Madam Clerk, want to make sure
that the last item that was continued to May 24 is properly reflected to have been those two
items, items 12 and 13. PZ (Planning and Zoning) --
Priscilla A. Thompson (City Clerk): That is --
Mr. Fernandez: -- 12 and 13 both.
Ms. Thompson: -- correct.
PZ.1 06-01060Iu ORDINANCE
Second Reading
(RESCINDED ON MARCH 27, 2009 BY FINAL ORDER NO. AC-09-002 ISSUED BY
STATE OF FLORIDA ADMINISTRATIVE COMMISSION.)
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH
ATTACHMENT(S), AMENDING ORDINANCE NO. 10544, AS AMENDED, THE
FUTURE LAND USE MAP OF THE MIAMI COMPREHENSIVE
NEIGHBORHOOD PLAN BY CHANGING THE LAND USE DESIGNATION OF
THE PROPERTY LOCATED AT APPROXIMATELY 3663 SOUTH MIAMI
AVENUE, MIAMI, FLORIDA, FROM "MAJOR INSTITUTIONAL, PUBLIC
FACILITIES, TRANSPORTATION AND UTILITIES" TO "HIGH DENSITY
MULTIFAMILY RESIDENTIAL"; MAKING FINDINGS; DIRECTING
TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A REPEALER
PROVISION AND A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
City of Miami Page 36 Printed on 4/7/2009
City Commission
Meeting Minutes April 26, 2007
06-010601u - RESCISSION of Ordinance 12911 documentation.pdf
06-010601u - PAB Fact Sheet.pdf
06-010601u - Analysis.pdf
06-010601u - Concurrency Report.pdf
06-010601u - Comp Plan Map.pdf
06-010601u - PAB Zoning Map.pdf
06-010601u - Aerial Photo.pdf
06-010601u - PAB Legislation.pdf
06-010601u - PAB Application Documents.pdf
06-010601u PAB Reso.PDF
06-010601u CC 03-27-07 Application & Supporting Docs.pdf
06-010601u CC Legislation (Version 2).pdf
06-010601u & 06-01060zc CC Exhibit A (OId).pdf
06-010601u CC FR Fact Sheet.pdf
06-010601u Submittal Letter Lapin & Leichtling.pdf
06-010601u Submittal Letter Levine & Partners, P.A..pdf
06-010601u Submittal Letter Luft Consulting, Inc..pdf
06-010601u Submittal Letter Tucker Gibbs P.A..pdf
06-010601u Submittal Letters of Support.pdf
06-010601u Submittal Map.pdf
06-010601u Submittal Opposition Memo.pdf
06-010601u Submittal Petition.pdf
06-010601u Submittal Presentation.pdf
06-010601u Submittal Presentation Grove Bay.pdf
06-01060zc, 06-010601u & 06-01060mu CC Zoning Map - Updated.pdf
06-010601u CC SR 03-22-07 Fact Sheet.pdf
06-010601u, 06-01060zc & 06-01060mu CC Exhibit A (Revised Legal).pdf
06-010601u CC 04-26-07 Application & Supporting Docs.PDF
06-010601u Submittal - News Article.pdf
06-010601u Submittal E-mail John Lukacs.pdf
06-010601u Submittal Grove Bay Residences Motion.pdf
06-010601u Submittal Grove Bay Residences MUSP.pdf
06-010601u Submittal Illustration of Devp. Site.pdf
06-010601u Submittal Jack Luft, Luft Consulting.pdf
06-010601u Submittal Letter Hadley Williams.pdf
06-010601u Submittal Letter- Natioanal Trust for Historic Preservation.pdf
06-010601u Submittal Letter- US Dept of the Interior National Park Serv..pdf
06-010601u Submittal Photos- Lucia Dougherty.pdf
06-010601u Submittal presented by Goggins.pdf
06-010601u Submittal presented by Henry Iler.pdf
06-010601u Submittal presented by John Lukacs.pdf
06-010601u Submittal Report on the Impact by Shubin.pdf
06-010601u Submittal Report on the Impact by Subratabasu.pdf
06-010601u Submittal Resolution presented by Ivan Rodriquez.pdf
06-010601u Submittal Richard J. Heisenbottle.pdf
06-010601u Submittal Shoreline Devp. Review Committee Reso..pdf
06-010601u Submittal Size Comparison - Ellie Haydock.pdf
06-010601u Submittal transcripts.pdf
06-010601u Submittal viewshed impact assessment.pdf
06-010601u CC SR Fact Sheet 04-26-07.pdf
06-010601u Submittal Comm. Sarnoff Letter.pdf
06-010601u E-mail Mayor's Response to Comm. Sarnoff.pdf
06-010601u Comm Sarnoff Response to Mayor's Letter.pdf
City of Miami Page 37 Printed on 4/7/2009
City Commission
Meeting Minutes April 26, 2007
06-010601u Mayor's Response to Comm. Sarnoff - Grove Bay Residences.pdf
LOCATION: Approximately 3663 South Miami Avenue [Commissioner Marc
Sarnoff - District 2]
APPLICANT(S): Iris V. Escarra, Esquire, on behalf of TRG MH Venture, Ltd.,
Contract Purchaser, and Mercy Hospital, Inc., Owner
FINDINGS:
PLANNING DEPARTMENT: Recommended approval.
PLANNING ADVISORY BOARD: Recommended denial due to the failure to
obtain the required five affirmative votes in favor to City Commission on
September 20, 2006 by a vote of 3-3. See companion File Ds 06-01060zc and
06-01060mu.
PURPOSE: This will change the above property to High -Density Multifamily
Residential for the proposed 300 Grove Bay Residences Major Use Special
Permit.
Motion by Commissioner Sarnoff, seconded by Commissioner Regalado, that this matter
be DENIED FAILED by the following vote.
Votes: Ayes: 2 - Commissioner Sarnoff and Regalado
Noes: 3 - Commissioner Gonzalez, Sanchez and Spence -Jones
12911
Motion by Vice -Chairman Sanchez, seconded by Commissioner Spence -Jones, that this
matter be ADOPTED PASSED by the following vote.
Votes: Ayes: 3 - Commissioner Gonzalez, Sanchez and Spence -Jones
Noes: 2 - Commissioner Sarnoff and Regalado
NOTE FOR THE RECORD: Ordinance No. 12911 was RESCINDED on March 27, 2009 by
Final Order No. AC-09-002 issued by State of Florida Administrative Commission.
Chairman Gonzalez: Before going into PZ.1, we need to go back to the Planning and Zoning
meeting of March 27, and based on the motion that was made at the close of the public hearing
on March 27, 2007, PZ (Planning & Zoning) items 1, 2, and 3, the Grove Bay Residence project
on the Mercy Hospital property will proceed as follow. The public hearing has been closed; no
further evidence will be presented to the City Commission. The item will be open for discussion
among the members of the City Commission only. The discussion will be based on the
information that was presented at the two previous public meetings -- and remember that we had
15 hours of public hearing -- and on the Commissioners' review of the transcripts of those
meeting. If any of the Commissioners ask a question for clarification only, staff may provide the
answer to the Commissioner's question and only staff. After discussion, motion can be made
individually for each item. PZ 1 is the ordinance changing the land use; PZ 2 is the ordinance
changing the zoning, and PZ 3 is the request to approve the MUSP (Major Use Special Permit).
I remember that when we concluded the March 27 meeting, it was Commissioner Sanchez that
asked the item to be continue because he needed time to read all the documents that were
presented at that meeting, and that was the only reason, and we agreed -- we all agreed that we
will not take any more input from either side; that all we were going to do this morning was to --
if the Commissioners had any questions from staff ask their question; get staff to answer the
Commissioner's question, and then call for a vote, and I'm telling you this so I will not open the
City of Miami Page 38 Printed on 4/7/2009
City Commission
Meeting Minutes April 26, 2007
floor for any more arguments. I will -- you know, the public hearing remains closed. It's closed
and it's only up to the City Commission.
Vice Chairman Sanchez: Mr. Chairman, if I could --
Chairman Gonzalez: Yes, sir.
Vice Chairman Sanchez: -- be recognized. I would like, first, if any of my colleagues have any
questions pertaining to the staff, that that be taken up first, and then, if I could be recognized for
discussion of the item.
Chairman Gonzalez: Yes, sir. I now open the item for discussion among the Commissioners. Is
there a motion or -- either one of the Commissioners wants to make a motion?
Commissioner Sarnoff.. I'd like a motion to deny the application. I find that the proposed
change to the Comprehensive Plan would act to harm the quality of life in the neighborhood;
number two, it would foster a decline in the surrounding neighborhood; number three, it would
promote a negative economic impact, and it would reduce job opportunities; number four, this
application would hurt our ability to foster downtown as our recognized regional center; number
five, this application would foster land use conflicts; and number six, this application would
harm our significant natural and coastal resources.
Commissioner Regalado: Second the motion.
Chairman Gonzalez: All right. We have a motion, and we have a second. It's an ordinance, Mr.
City Attorney, right? Or should we do a roll call on the --?
Jorge L. Fernandez (City Attorney): You should do a roll call.
Vice Chairman Sanchez: Roll call on denial.
Chairman Gonzalez: Roll call, Madam City Clerk.
Priscilla A. Thompson (City Clerk): Roll call.
Commissioner Sarnoff. Can we have discussion, or you don't want to have discussion?
Vice Chairman Sanchez: No, no discussion.
Chairman Gonzalez: Discussion. Any discussion? No. All right.
Commissioner Regalado: Well --
Commissioner Sarnoff.. Well --
Chairman Gonzalez: Yes, sir.
Commissioner Regalado: -- I'd like to say something, if we are going to vote, which is what we
should have done, but we're doing today. I was thinking of talking today about the run-off
elections in France -- this is in May -- and there are two candidates that are running, and I was
thinking, well, people will say, what does the run-off election in France has to do with this item?
And I would say, nothing, and I'm saying this because I have been told that in radio, there have
been several pay spots that have been running on Hispanic radio telling the people of the need to
call Commissioners Sarnoff and Regalado, so they can help the health care of the elderly and not
their special interests, and I was thinking, well, what does health care have to do with a zoning
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matter, but just the way things go in the City. Is that legal completely? Is that necessary? I
don't think so, but the debate here has been, throughout all these hours, about health care and
about the Vizcaya and not about the zoning issue or neighborhood issue. This is a debate that
we all would have with the people. Since people were told to call my office to ask me to support
health care for the elderly, I could suggest that the way to help health care, in general, then may
be the future for Baptist Hospital, which is in Kendall Drive, has all these huge land, lakes, and
docks to sell that, too, or Jackson Memorial Hospital to serve -- to sell the parking facility to a
private enterprise, and more money will be made, although that will not solve the health care
crisis in the United States, because some day we should discuss that because that's our
responsibility, although health care is not a municipal responsibility. We do have residents that
have many issues with health care. Recently, the President received the report from the Social
Security Committee, and now we know that Medicare is going to be out of funds by 2018 and
Social Security will be bankrupt by 2021, so it is an important issue, but this has not been the
issue, so -- lucky for me, no one called the office to ask me to support health care, so my focus
has been and should be in a zoning change, as simple as that. Thank you, Mr. Chairman.
Commissioner Spence -Jones: Mr. Chairman.
Chairman Gonzalez: You're welcome. Yes, ma'am.
Commissioner Spence -Jones: I'm sorry.
Commissioner Sarnoff. I -- yeah.
Commissioner Spence -Jones: I want to defer to --
Commissioner Sarnoff. If I can. Mr. Chairman, I echo what Commissioner Regalado had to
say, and I would ask state that no one called my office either, but I would like to get to what
we're discussing. We're discussing PZ 1, which is a change of the Comprehensive Plan for the
neighborhood I urged you last time that you could forget that the federal government, that the
state government, and that the county government had all come in and urged you to reject these
changes, but what I said was that you could actually listen to one person, and that was Arva
Moore Parks, so I took it upon myself and I found Arva Moore Parks' book called "Miami Then
and Now," and I was able to find Vizcaya, then and now; could probably even say it may even
look better now than it did then, and then I looked around to see what other facilities that we
have then and now, which actually look quite good and I'm obviously showing you Carrolton
School, then and now. I even went so far as to look at Plymouth Congregational Church, then
and now, and it looks quite good, even on Charles Avenue, in Village West, I was able to find the
first black community church, then and now, butt was also able to find something else very
interesting. What does happen when a building gets surrounded by large high-rises, and I was
able to find the Women's Club in Coconut Grove, then and now, and you'll see it engulfed by the
high-rises, but it didn't stop there. I was able to see the Coconut Grove Library, and I got to see
it then and now, as it is engulfed by the high-rises. If you are to be good stewards with the land
and if you are truly to follow your Comprehensive Neighborhood Plan, then you simply must be
good stewards with your land and deny this zoning -- this change to the Comprehensive Plan.
Let me just say something to my fellow Commissioners, and I ask you to take heed to this. I
would not presume to make a decision regarding the waterfront along Miami River in your
district without referring to the expertise and deferring to your recommendation. I know that
there are several controversies near the Northwest 27th Avenue and Miami River, and I presume
those are critical to District 1, and I would certainly follow the recommendation of the
Commissioner Gonzalez. I would not presume to make a decision regarding Jose Marti Theater
on Southwest 8th Street, in the event a developer wanted to build a high-rise 400-foot tall
building on that site without deferring to the expertise and to the recommendation of
Commissioner Joe Sanchez, because I presume that location is critical to your district. I would
not presume to make a decision regarding either the Lyric Theater in Overtown or the Caribbean
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market building in Little Haiti without deferring to you, Commissioner Spence -Jones. What
would happen if a developer wanted to build a 400-foot tall high-rise in either site? I would
presume those locations are critical to your district. Each one of you are contemplating whether
you would like to pay a visit over to District 2 and decide for yourself what's best for District 2;
yet, none of you have walked the neighborhood, have met with the neighbors, and have spent the
time that I've spent going in my neighborhood and understanding the issues that are important to
District 2. This can all change today, and we can all be looking at each other's neighborhoods
with a great deal more scrutiny, so I would caution everybody that today, I would take the lead
of the district Commissioner in their district, presuming that they have spent the time addressing
their neighbors and considering the good sound decisions that they make on behalf of their
neighborhood I ask you to trust that I have made good sound decisions on behalf of my
neighborhood that I spent the better part of the past six months campaigning for and winning.
Chairman Gonzalez: Commissioner Spence -Jones.
Commissioner Spence -Jones: Yes.
Applause.
Commissioner Spence -Jones: Mr. Chairman, as you know, this has definitely been a trying
matter for all of us sitting on the dais. As you know, my past support of this project in accepting
the amendment was based on basically my own visits to the sites. I've been there at least two or
three times to look at it from that perspective, based upon the compromises that I've seen with
the building going from 1,000 units to about 240 units, and also from our own Planning
Department's recommendations, and of course, the support of various neighborhood
associations, even their -- even though there is very vocal opposition against it. Even this week,
because this is one matter, even though it's not in my district, I've been really wrestling with. I
really try my hardest to make sure that whatever I do, I try my best to support local residents and
neighborhoods. I've been doing that since I've been sitting on the dais, but on -- two days ago, I
did go back over there, with Planning staff, to walk it, to really understand exactly what it
actually meant, because in hearing the presentations by both sides, when you actually go there,
it's very different. Where the building is, proposed to be, the existing way that it looks now on
the bay walk, or the area facing the water. It's very different. The seniors that live in Carroll
Manor, and that road itself that leads to the back area, and how dangerous I think it could be for
seniors to walk on that road to, at least, enjoy the water. All these are things -- the things that I
considered in making a decision. I have to say this, though. You know, for me, I have so much
respect for Commissioner Sarnoff in what he's trying to do in his district, and the fact that he
fights very hard for the residents of his district, and we're very much alike in that way, and I try
my best to lean towards supporting district Commissioners in what they want to see happen
within their districts. I'm a big historic buff, and for those folks that know me, they know that I
support historic venues in my district. I support Vizcaya in their mission to do what they're
trying to do, so it's not even about that, but you know, one of the things that, you know -- and I
wasn't going to even bring it up this morning unless, you know, it was brought up on the dais. I
was going to simply just over look it, but in the last meeting that we had district Commissioner -
- Commissioner Sanchez, kind of talked about the issue of how certain things transcends
districts, and I know this more so than ever now from this most recent incident that I've been
dealing with since about 4 o' clock this morning, which is "Shantytown," and unfortunately for
those that do not know, the place was burnt to a crisp. There're about 30 people living there,
and a few months ago, while, you know, it definitely was in my district, 62nd and 17th Avenue,
you know, it was brought up to this Commission for us to address the issue, just like today, where
we would had a situation where I had several homeowners in the area that had been paying
taxes for God knows how long that finally felt like Liberty City was being cleaned up for
whatever reason, and they were faced with "Shantytown" being on the corner of 62nd and 17th.
I got -- I received a stack of petitions from neighborhood residents saying that, "Commissioner,
why aren't you doing something about this?" This is a problem. Why aren't [sic] you not
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addressing this issue? And it is basically a public safety issue. We're afraid for our children to
walk back and forth to school for whatever reason, you know, and I had to weigh a very tough
decision. Now, mind you, the decision was never to drive anybody off the lots. The decision was
about making sure that a candle -- as a matter of fact, I had even made reference to the candle --
could fall and burn a mattress, a cardboard box in which they're living in, and then who would
become liable? The City of Miami would become liable. People could die. That was the
perspective. It had nothing to do with the City trying to be in control or any of that. It is about
just a public safety issue for me. You know, someone trying -- grew up in the neighborhood
trying to make a difference, trying to make a balance between those that were, you know, living
their lives and had given everything they had to keep their homes, and feeling as though the
government was letting them down. Mind you, that was my district, and even in the midst of all
of that, you know -- and I respect the comments that came from the dais from two of my
colleagues on here, but it was my issue. It was something that I felt I needed to address, because
God forbid anybody got killed during that, for whatever reason, so I get a call this morning, start
getting them about 4 or 5 o'clock this morning, until finally the Manager reaches me, and the
place is burnt to a crisp, and you know, the first thing that came to my mind -- you know, first of
all, I said to myself you know what? God is a mighty god because nobody got hurt. I said, you
know, it could have been easily a different way. I was told once I arrived on that scene, that
why it was burnt to a crisp, that babies or children had to be pulled out in the middle of the
night, and some people were so -- you know, still asleep that they didn't see because the place
kind of just went up all in -- all of a sudden, and immediately, you know, it was a shocking
situation, and once I arrived on site, the first thing that came to my mind -- because, again, I'm
trying my best to balance the both and do the right thing for the residents and for the people of
the City of Miami. I said to myself you know what? Here's an instance where we allow for
politics to be placed over people. Politics to be placed over people, and that was one of the
things that I ran on. I don't want to ever get caught up in politics like that that I cannot, you
know, look at the situation for what it really is, and thank God nobody got hurt, but thank God
nobody got affected by it, so here's a perfect example of it may not be in my district, but my
fellow Commissioners weighed in on it, so I say that to say, while I recognize that the -- there are
several neighbors that do have an issue with it, you know, and they're concerned about it, I
really believe, in my heart of hearts, that the good outweighs the bad, and I honestly believe,
whether or not you want to hear it or not, the good does outweigh the bad and from this
perspective, I look at the issue of several things that have come to my mind regarding the issue,
and one of the things that, you know -- and again, I can only speak from my perspective, and that
is, you know, when I look at Mercy Hospital -- Mercy Hospital, whether anybody wants to
acknowledge it -- and I understood and I understand what individuals have said on the dais this
morning, that it's not really about the hospital. In the end of the day, it is about the hospital.
Let's keep it all the way real. The issue is the hospital needs money. They need the money so
that they have the ability to do the things they need to do to service the community. That -- I
mean, that's what it's about. I mean, yes, they're changing -- there's a land use change; it's
going to take place about -- from it, but the hospital's going to get the necessary upgrades, the --
we're going to be able to provide more jobs to people in the area because of it. I mean, that's
what it's about. The other issue for me was the issue of the seniors, and I mentioned that earlier,
and them having a safe way to access the bay, and I'm a strong supporter of that happening, and
they've come out to state that and even express their support of it. When I found out that there
was going to be a traffic light that was going to be put on North Bayshore Drive to assist with
the traffic -- because in the beginning, that was my concern, coming out on the street, that there
was no way to get out without creating some sort of traffic jam over there, only to find out there
is a traffic light that's going to be placed there, and several other things. When I started
counting all of the pros, there were like seven or eight pros. When I start counting the cons in it,
my biggest con and the hardest decision for me was not to support Commissioner Sarnoff,
despite other issues that might have taken place that have clearly been issues for me in my
district. That was my biggest issue, was not supporting him. That is the thing that stood out the
most to me. Then came the residents, the residents that had an issue, because I have a lot of
friends from the Grove; Felice knows that. I support them, you know, and that's always been the
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case, but on this situation, and then when this happened this morning for me, you know, I could -
- I -- a hospital, to me, whether or not we place -- we want to face it or not, is not a district issue;
it is a citywide issue. Everyone goes to that hospital. If Commissioner Gonzalez, at Jackson
Memorial, which is in his district, Cedars and all of that within that place, if they decided they
needed to do whatever they needed to do in order to maintain and keep that hospital going,
guess what? We would all weigh in on it. Every single last one of us would weigh in on it
because we all have constituents and residents that go to that hospital, so with that being said --
I mean, that is my feeling, and I've tried to really weigh this issue, and I've had a heavy heart on
it, you know, but that is my viewpoint.
Applause.
Chairman Gonzalez: Thank you. Please.
Vice Chairman Sanchez: Listen, if you could just save that --
Chairman Gonzalez: Bring this meeting to order.
Vice Chairman Sanchez: -- for the next Heat game, I think they need it.
Chairman Gonzalez: Before I do the roll call, I wasn't going to talk about this, but I have to
now, that everyone has -- pardon me?
Vice Chairman Sanchez: Let's -- why don't we vote on this issue, and then we'll --
Commissioner Spence -Jones: Let -- no. Let the record --
Vice Chairman Sanchez: -- continue the discussion.
Chairman Gonzalez: No, because --
Commissioner Spence -Jones: -- I'd like the Chair -- I want to hear -- I want every Commissioner
-- I would like to hear the Chairman speak on it.
Chairman Gonzalez: Yeah. My vote -- I also didn't get any calls from anybody supporting the
hospital, and if I would have got a call, I wouldn't speak to the person or I wouldn't vote because
it's a violation of the Jennings law, so my vote is not going to be based on the radio ads, or any
TV (television) ads, if there was any TV ads or newspaper ads. My vote also is not going to be
based on the -- on an e-mail (electronic) that I receive in my office where -- and I don't know if
any of you got that e-mail, a copy of that e-mail, where I and my colleagues -- because on the
first vote voted in favor of the hospital or the project of Mercy Hospital. In that e-mail, we are
called corrupted, we are called thieves, we are told that we are on the take, and let me tell you.
Any of you that think or that knows that I'm on the take, should go to the State Attorney's Office,
you know, and make a complaint, but you know what happened? There's a certain group of
people here that believe that they are almighty and we, Hispanics, are Indians, and we are the
corrupted politicians; we are the thieves of the County and the City, and we are destroying the
City, and let me tell you. In response to the 27th Avenue Bridge, there were three projects
approved in 27th -- in the Miami River, and as I many times say, in my district was one of the
most neglected district of the City of Miami, specifically the area of Allapattah, and now that we
had the opportunity of having some people trust the area and come back and start investing in
the area and building affordable housing and building and creating new jobs and creating a new
economy for the district and for the area of Allapattah, a certain group of special interest have
delayed those project in the courts for three years, so I haven't been able to see any development
in the River or on the 27th Avenue, butt have to say that because, you know, I had to get it out of
my chest, and I told Mike, from the Miami Herald, when he called me two days ago, I told him,
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you know, it's very sad when you get these e-mails, that -- you know, and people getting access to
these e-mails of people defamating [sic] and insulting, and you know, destroying the morale and
the -- and once again, hey, you know, there is the State Attorney's Office; just go there and file a
complaint, and it's like the e-mail says, you know, follow the money trail, but if there is a money
trail and if you have someone -- whoever wrote that e-mail, one person, three persons -- Mr. City
Attorney, you're familiar with the e-mail.
Mr. Fernandez: Yes.
Chairman Gonzalez: OK. Anyone that has evidence that anyone here sitting at this Commission
has taken money or it's on the bribe, or is on the takes or it's on the whatever you want to call it,
it's your duty and your obligation to go to the State Attorney's Office and file a formal complaint.
You know, step up to the table. I mean, you know, be a man, OK. Do like men do things,
upfront. Don't hide before -- behind a computer to start defamation and insulting people and
destroying the prestige and the morale of the people that are sitting here on this dais, so my vote
is not going to be based on any of that. My vote is going to be based on the testimony that I
heard here, on the arguments that I heard, on what I think is going to be the best option for that
property, after hearing the different options that the owners of this property have, so that's how
my vote is going to be, based on the testimony that I heard for 15 consecutive hours. Madam
Clerk, do roll call, please.
Vice Chairman Sanchez: I would reserve my comments for PZ 3.
Mr. Fernandez: Madam Clerk, before you take a vote, I want the record to be very clear that
this is a renewed motion to deny and you're voting only on PZ.1 --
Chairman Gonzalez: Yes, sir.
Mr. Fernandez: -- which is a Comprehensive Plan change.
Chairman Gonzalez: Roll call, please.
Ms. Thompson: Roll call. Commissioner Spence -Jones?
Commissioner Spence -Jones: Yes.
Vice Chairman Sanchez: No.
Mr. Fernandez: No. Well --
Commissioner Spence -Jones: No.
Mr. Fernandez: You've asked me --
Commissioner Sarnoff.. Mr. City Attorney --
Mr. Fernandez: No, no.
Commissioner Sarnoff.. No. Let me just say something.
Commissioner Regalado: No, no, no, no.
Mr. Fernandez: The --
Commissioner Sarnoff.. That was highly inappropriate --
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Commissioner Spence -Jones: No.
Commissioner Sarnoff. -- of you --
Commissioner Spence -Jones: Excuse --
Commissioner Regalado: It is inappropriate.
Commissioner Spence -Jones: He -- no, no, no, no, no.
Commissioner Sarnoff. That was --
Commissioner Spence -Jones: No one -- no, no, no, no.
Commissioner Sarnoff. Oh, wait, wait, wait.
Commissioner Regalado: You cannot tell her --
Commissioner Spence -Jones: I -- no --
Commissioner Regalado: -- how to vote.
Commissioner Spence -Jones: -- she -- wait.
Mr. Fernandez: She asked me --
Commissioner Spence -Jones: Excuse me, Commissioner Regalado --
Commissioner Sarnoff. Just one moment.
Commissioner Spence -Jones: -- and Commissioner Sarnoff. I'm very clear of what my vote is.
Commissioner Sarnoff. I understand that --
Commissioner Sarnoff. -- but we --
Mr. Fernandez: She asked me --
Commissioner Spence -Jones: I'm very clear what my vote is.
Applause.
Mr. Fernandez: Again, Mr. Sarnoff -- Commissioner Sarnoff --
Commissioner Sarnoff. Mr. City Attorney --
Mr. Fernandez: Yes, sir.
Commissioner Sarnoff. -- I don't need the sixth Commissioner over there.
Mr. Fernandez: No, and you don't have one. You only have a very strong City Attorney, and let
me tell you. Commissioner --
Applause.
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Chairman Gonzalez: Please, no clapping.
Mr. Fernandez: -- if it were not for the fact that Commissioner Spence -Jones appropriately
stood, came to my side, and said, ifI intend to vote this way, what would my vote be, because I
intend to vote -- and she made it very clear. I clarified the issue for her. When I heard her, five
minutes after, make a contradictory statement -- I wish I hadn't had my microphone on, but I
don't regret having it on -- I told her that she was -- I said, no. That's all, and I do apologize
because, perhaps, I did expend myself --
Commissioner Spence -Jones: And let's --
Mr. Fernandez: -- but it was because she asked, not because I suggested it.
Commissioner Spence -Jones: -- be very clear. Commissioner Spence -Jones knows exactly what
she wants to vote.
Applause.
Vice Chairman Sanchez: All right.
Chairman Gonzalez: All right. Let's continue with the roll call, please.
Vice Chairman Sanchez: Continue the roll call.
Ms. Thompson: Just so my records are correct, I'm showing Spence -Jones as a yes?
Commissioner Spence -Jones: And I just said it's a no.
Ms. Thompson: Vice Chairman Sanchez?
Vice Chairman Sanchez: No.
Ms. Thompson: Commissioner Sarnoff?
Commissioner Sarnoff Yes.
Ms. Thompson: Commissioner Regalado?
Commissioner Regalado: Yes.
Ms. Thompson: Chairman Gonzalez?
Chairman Gonzalez: No.
Applause.
Chairman Gonzalez: No clapping, please.
Ms. Thompson: The motion to deny passed 3/2.
Chairman Gonzalez: All right.
Commissioner Regalado: No.
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Mr. Fernandez: The motion to deny --
Ms. Thompson: I'm sony.
Mr. Fernandez: -- failed.
Ms. Thompson: I am sony. The motion to deny failed 3/2.
Vice Chairman Sanchez: Mr. Chairman --
Chairman Gonzalez: Yes, sir.
Vice Chairman Sanchez: -- as I stated, I am reserving time for PZ 3. That's where I will make --
Chairman Gonzalez: OK.
Vice Chairman Sanchez: -- my argument. I will --
Chairman Gonzalez: All right.
Vice Chairman Sanchez: -- move PZ.1.
Commissioner Spence -Jones: Second
Chairman Gonzalez: You move to approve PZ.1 ?
Vice Chairman Sanchez: Yes, PZ.1.
Chairman Gonzalez: All right. We have a motion, and we have a second. Roll call, please.
Mr. Fernandez: No. You have to read the ordinance.
Chairman Gonzalez: Oh, I'm sony. You need to read the ordinance. That's correct.
The Ordinance was read by title into the public record by the City Attorney.
Mr. Fernandez: Second reading.
Chairman Gonzalez: Roll call, please.
Ms. Thompson: Roll call. Commissioner Regalado?
Commissioner Regalado: No.
Ms. Thompson: Commissioner Sarnoff?
Commissioner Sarnoff. No.
Ms. Thompson: Commissioner Spence -Jones?
Commissioner Spence -Jones: Yes.
Ms. Thompson: Vice Chairman Sanchez?
Vice Chairman Sanchez: Yes, ma'am.
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Ms. Thompson: Chairman Gonzalez?
Chairman Gonzalez: Yes, ma'am.
Ms. Thompson: The ordinance has been adopted on second reading, 3/2.
Vice Chairman Sanchez: OK.
PZ.2 06-01060zc ORDINANCE Second Reading
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH
ATTACHMENT(S), AMENDING PAGE NO. 44, OF THE ZONING ATLAS OF
ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE
CITY OF MIAMI, ARTICLE 4, SECTION 401, SCHEDULE OF DISTRICT
REGULATIONS, BY CHANGING THE ZONING CLASSIFICATION FROM "G/I"
GOVERNMENT AND INSTITUTIONAL TO "R-4" MULTIFAMILY
HIGH -DENSITY RESIDENTIAL, WITHOUT AFFECTING THE "NCD-3"
NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT, AS APPLICABLE,
FOR THE PROPERTY LOCATED AT APPROXIMATELY 3663 SOUTH MIAMI
AVENUE, MIAMI, FLORIDA; CONTAINING A SEVERABILITY CLAUSE AND
PROVIDING FOR AN EFFECTIVE DATE.
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