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HomeMy WebLinkAboutAppeal Letter (2)W. TUCKER GIBBS, P.A. AT LAW P C). Rox 1€l5 1 TEl..LI'UoM O i. ;.t4S.g4S( FACSlr II,L': (i(35; =18-t)"'; August _U, 2007 VIA HAND DELIVERY Terecita Fernandez Executive Secretary Hearing Boards Department City of Miami 444 S.W. 2d Avenue Seventh Floor Miami, Florida 33131 Re: Appeal of Zoning Board Decision Upholding A Determination of Non -Substantial Modification of Major Use Special. Permit for Bayview Market Dear Ms Fernandez: I represent Jerin, Inc., which owns property at 35 and 41 N.E. 17'1' Terrace in the City of Miami. This property is immediately to the west and adjacent to the Bayview Market property that is subject to the referenced major use special permit ("MUSP") approval. The city commission approved the MUSP on May 26, 2005 and the applicant on April 12, 2007 sought a modification of the city commission -approved plans. On May 11, 2007 the planning director approved the proposed modification as a ''de minimus' non substantial change" to the MUSP pursuant to a February 21, 2007 memorandum from the zoning administrator. On July 30, 2007 the zoning board denied my client's appeal of the planning director's determination. Let this letter serve (pursuant to article 20 of the City of Miami Zoning Ordinance) as a request for the city commission to review the decision of the zoning board upholding the issuance by the planning director of the approval of the modification of the approved MUSP plans for the Bayview Market. The grounds for this request for review/appeal include the following: The basis for the underlying approval upheld by the zoning board) is a February 21, 2007 memorandum from the zoning administrator. yet the approval is for a proposal presented to the planning director on April 12, 2007. In fact the plans presented to the planning director on April 12 are dated April 2, 2007 and April 11, 2007. This shows that the zoning administrator could not have reviewed these plans on February 21, 2007. Thus the basis for the planning director's approval ---- the February 21, 2007 memorandum ---- is not relevant to the April 12, 2007 application and its included April 2 and 11, 2007 plans because the memorandum did not address those plans. 2. The changes deeicted on the plans are substantial changes as defined in section 2215.1 of the Miami Zoning Code warranting full review of applicable advisory boards and the city commission, including: a. Certain of the requested changes exceed zoning code requirements: i. Each of the ten parking levels is described as 12'2" in height. This adds up to 121'8" in height exceeding the zoning code's 120' height limit. Yet the elevation drawings show the 10h' parking level height at 120'0". ii The 10`h level parapet along N.E. 2d Avenue is shown at 130'0" in height violating section 915.1.1 of the zoning code. That section states that a parapet wall may not extend more than five feet above the roof. This 10-foot high parapet exceeds zoning requirements by five feet. iii. The atrium canopy is a hard roof structure over habitable floor areas that also may contain almost 14,882 square -feet in retail sales uses. As such it is not an excluded structure from height measurement, and at 140'0" in height it exceeds the city's zoning code requirements by 20 feet. Furthermore, it adds additional retail space not contemplated in the MUSP. b.The building footprint is moved more than 10 feet horizontally: i. The west wall of the first level big box space is approximately 75 feet further east than shown in the plans approved by the city commission in the original MUSP. 2 ii. This change includes a loading/receiving area not included in the MUSP. c. The proposed changes result in a different project and are no longer in compliance with the criteria and findings in the original MUSP approval by the city commission: i. The use and area changes, together with the replacement of the residential lofts with office units produce changes in traffic trip generation that impacts the city commission's original approval. The current submittal produces 1,348 net vehicular trips without internal capture in the PM peak. The original submittal produced 1,186 net PM trips. The current submittal causes an increase of 180 PM peak vehicular trips - an increase of 15.4%. The design change allowing big box uses instead of small retail uses fronting what was to be an urban, pedestrian environment along N.E. 17 Street changes the project and shows it to be incompatible with the design philosophy that underpins the street -front design of the project approved by the city commission. This is different and incompatible with the approved MUSP. iii. The location of outdoor materials storage and idling trucks facing the residential units of the Parc Lofts condominium, along with the redaction of landscaping along N.E. Miami Place are changes to the commission -approved MUSP that directly impact the residents of Parc Lofts and my client -- the adjacent property owner -- and render these proposed changes as incompatible with the original MUSP approval and the surrounding neighborhood. The impact of the changes proposed in the submitted revisions produces 16% more PM peak vehicular trips, changes the design philosophy of the project and shifts the more intense and negative impacts of the project to the side abutting its only residential neighbors. This was not the project approved by the city commissioners when they voted for this MUSP. And this calls into question the validity of the planning director's determination that these changes are "de minimus" and are not a substantial change from: the MUSP approved by the city commission. As argued before the city commission arid in the circuit and appellate courts, the applicant argued, and the city agreed, that a critical basis for the MUSP approval was the 20' height of each parking level. The applicant agued the necessity of these heights for safety reasons, particularly for access of emergency vehicles. The proposed changes reduce the parking height on each level to 12' (an eight -- foot reduction per floor). This creates a safety issue and is contrary to the representations made to the city commission, the circuit court and the Third District Court of Appeal. 4. The City of Miami failed to provide affected or aggrieved parties notice of this decision to approve these modifications. For those reasons, appellant Jerin, Inc., through its undersigned attorney, hereby requests (pursuant to article 20 of the zoning code) that the City Commission of the City of Miami review the zoning board's denial of the appeal of the approved modifications to the Bayview Market MUSP. Furthermore, appellant reserves its right to supplement this request for city commission review with briefs or memoranda prior to city commission, consideration of this appeal. Sincerely, W. Tucker Gibbs cc: Jerin, Inc. Pedro G. Hernandez, City Manager Priscilla Thompson, City Clerk Jorge Fernandez, City Attorney 4