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HomeMy WebLinkAboutCC 2008-01-24 MinutesCity of Miami City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Meeting Minutes Thursday, January 24, 2008 9:00 AM PLANNING AND ZONING City Hall Commission Chambers City Commission Manuel A. Diaz, Mayor Joe Sanchez, Chair Michelle Spence -Jones, Vice -Chair Angel Gonzalez, Commissioner District One Marc David Sarnoff, Commissioner District Two Tomas Regalado, Commissioner District Four Pedro G. Hernandez, City Manager Jorge L. Fernandez, City Attorney Priscilla A. Thompson, City Clerk City Commission Meeting Minutes January 24, 2008 CONTENTS MV - MAYORAL VETOES PA - PERSONAL APPEARANCES PH - PUBLIC HEARINGS FR - FIRST READING ORDINANCES RE - RESOLUTIONS PART B PZ - PLANNING AND ZONING ITEM(S) M - MAYOR'S ITEMS D1 - DISTRICT 1 ITEMS D2 - DISTRICT 2 ITEMS D3 - DISTRICT 3 ITEMS D4 - DISTRICT 4 ITEMS D5 - DISTRICT 5 ITEMS City ofMiami Page 2 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 9:00 A.M. INVOCATION AND PLEDGE OF ALLEGIANCE MAYORAL VETOES Present: Commissioner Gonzalez, Commissioner Sarnoff, Chair Sanchez, Commissioner Regalado and Vice Chair Spence -Jones On the 24th day of January 2008, the City Commission of the City ofMiami, Florida, met at its regular meeting place in City Hall, 3500 Pan American Drive, Miami, Florida, in regular session. The meeting was called to order by Chair Joe Sanchez at 9: 08 a.m., recessed at 12:11 p.m., reconvened at 1: 35 p.m., recessed at 8: 04 p.m., reconvened at 8: 07 p.m., and adjourned at 9: 28 p. m. Note for the Record: Commissioner Gonzalez entered the Commission chambers for the morning session at 9:18 a.m. Note for the Record: Commissioner Gonzalez entered the Commission chambers for the afternoon session at 1: 36p.m. Jorge L. Fernandez, City Attorney Pedro G. Hernandez, City Manager Priscilla A. Thompson, City Clerk Pamela E. Burns, Assistant City Clerk Chair Sanchez: Good morning, ladies and gentlemen. I want to take this opportunity to welcome you to City Hall. The City ofMiami Commission meeting is being called to order. We'll go ahead and start with the invocation by Vice Chair Michelle Spence -Jones, followed by the pledge of allegiance by Commissioner Sarnoff. Invocation and pledge of allegiance delivered. NO MAYORAL VETOES Chair Sanchez: We'll go ahead with the agenda. We do have a couple of items that have been time certain, and the Chair has worked with the Commissioner to try to get them heard. There are no mayoral vetoes at this time, Madam Clerk. Is that correct? Priscilla A. Thompson (City Clerk): That is correct. Chair Sanchez: All right. And we do have a personal appearance. We do have representatives from WASA (Water and Sewer Authority) and South Florida Water Management here today to give us their presentation. Chair Sanchez: But as -- before we do the meeting, as a courtesy to Commissioner Sarnoff, who requested thatPZ.1 be taken up at 10 a.m. this morning, as promised -- that item has been deferred four times, and therefore, I think it's paramount that we do get you heard today and get it over with so we can move on on that item. Also, P -- FR. 3 and PZ.16 and 17, in that order, will be taken at the end of the agenda. Hopefully, that'll be some -- maybe around 4 or 5 o'clock this afternoon. So let's go ahead and go with the presentations. The first item is a personal appearance and -- oh, yes. Let's go ahead and -- Mr. City Manager, is there any items that you would like to defer on this agenda? Pedro G. Hernandez (City Manager): Good morning, Mr. Chairman, Commissioners. We do have an item that I would like to withdraw, which is item RE.2, and -- Chair Sanchez: RE.2? Mr. Hernandez: -- it's to be withdrawn. RE.2. City ofMiami Page 3 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: RE.2 has been withdrawn for the record, Madam Clerk. Okay. PERSONAL APPEARANCE PA.1 08-00025 DISCUSSION ITEM REPRESENTATIVE(S) FROM MIAMI-DADE COUNTY WATER & SEWER DEPARTMENT (WASD), SOUTH FLORIDA WATER MANAGEMENT (SFWM) AND THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) TO ADDRESS THE CITY COMMISSION REGARDING THE CURRENT AND FUTURE SUPPLY OF WATER, WATER CONSUMPTION AND WATER REUSE. 08-00025 Personal Appearance Page.pdf 08-00025-Submittal-Presentation. pdf DISCUSSED Chair Sanchez: All right. Let's go to the personal appearance. Pedro G. Hernandez (City Manager): Mr. Chairman, this is a personal appearance on the subject of current and future supply of water, water consumption and water reuse and also conservation. And we have representatives from the Florida DEP, Department of Environmental Protection, South Florida Water Management District, andMiami-Dade's Water and Sewer Department. I would like to start by recognizing Eric Buermann, who's the chairman of the South Florida Water Management District, to initiate the item. Mr. Buermann, welcome. Chair Sanchez: Mr. Buermann, welcome to the City ofMiami Commission. Eric Buermann: Thank you very much. Chair Sanchez: You're recognized for the record. Mr. Buermann: Thank you. I'm Eric Buermann. I'm the chairman of the Board of Governors of the South Florida Water Management District, and we're based up in Palm Beach, but I want you to know in my case, I'm a third -generation Miamian, andl grew up right here in Coconut Grove. My little daughters, on their mother's side, are sixth -generation Miamians, going back to the founding of Miami, so I want you to know that myself and our team have Miami's interests always at heart -- best at heart, along with Dade County, and we're trying to do the best that we can, not only for the local community but also our entire district, which, as you may know, runs from Orlando down to Key West; 16 counties and 18,000 square miles, so coast -to -coast it's a massive district. So any time you have any issues where we can be of assistance to you, we hope that you'll call us and we have that direct line of communication, so -- andl want to thank Commissioner Sarnoff, who not only invited us to come today to talk to you, but also came to our governing board meeting, which we had here in Miami a few weeks ago right across the street in the hotel over here, so thank you, Mr. Sarnoff, for -- Commissioner Sarnoff I think by inviting you, I did a rain dance, so I need to invite you probably every three year -- you know, two or three months because it -- Mr. Buermann: We -- City ofMiami Page 4 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff -- seems like just before we invite you, it'll rain. Mr. Buermann: Well, we attend any and all rain dances to which we're invited, I want you to know. And, in fact, I was telling Commissioner Sarnoff when we voted to implement the water restrictions a few weeks ago, it was raining right over our meeting in Palm Beach, not at the lake where we need the rain, but anyway, anything we can do to implement rain, we're very excited about helping with that. So I brought our team with us, our executive team, Carol Wehle, who's our executive director, and she'll introduce some of our colleagues. Thank you very much. Chair Sanchez: Thank you. Ma'am, good morning. Carol Wehle: Good morning. My name is Carol Wehle. I am the executive director of the South Florida Water Management District. We have several staff here today. I'd like to introduce Evan Skornick is here, and he is our acting service center director in your local community, if there is anything that you need; and also have Jose Luis Rodriguez, who is our assistant deputy executive director for Government Affairs and lives in your community and is very happy to be of service whenever you need anything. Chip Merriam is our deputy executive director for Water Resources. Chip will do a presentation today. We're going to cover the relationship that the Water Management District has with cities and counties, and water supply, and comprehensive planning. And then I believe Doug Yoder is here from the County to give a presentation on a very exciting new permit that the County has for water supply, and since Commissioner Seijas is here today, want you to know a giant thanks goes out to her leadership in negotiating. She andl spent a lot of time together, and we're very proud of the work product. A 20-year consumptive use permit has now been issued to Miami -Dade County with a very aggressive, what is going to be probably the most aggressive, reuse program in the United States, so you know, a giant thanks to the leadership that she showed, and all the hours that we both have put in in negotiating, and our staffs have done a fabulous job. So with that, Mr. Merriam will give a presentation on comprehensive planning, Mr. Yoder will discuss the water supply, andl believe the Department of Environmental Protection is here to address wastewater and reuse. Chair Sanchez: All right, sir. You're recognized for the record. How long is your presentation going to be taking? Chip Merriam: It'd just be a few minutes. I'm actually going to cut it short so the others can fit in there, too. But what I -- I do want to thank the Commissioners for allowing us the time, and I also want to share with you that working with Dade County has been unique for us in the permitting world, and partially because of the enormous size of the permit. Their consumptive use permit will actually skew the entire state of Florida statistics when you look at, you know, the number and the volume of water. They're currently permitted for -- Chair Sanchez: May I interrupt you for a minute? Mr. Merriam: Sure. Chair Sanchez: Before you go on, we need your name and address -- Mr. Merriam: Certainly. Chair Sanchez: -- for the record. Mr. Merriam: My name is Chip Merriam, with the South Florida Water Management District, and I -- my address in the South Florida Water Management District is 3301 Gun Club Boulevard, West Palm Beach 33406. If that's okay, I'll go 'head and continue on, Mr. Chairman. Thank you. City ofMiami Page 5 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Yes, sir. Thank you. Mr. Merriam: But with that, again, it's a very large permit. It also has a very unique relationship with our agency because it is right up against the Everglades, so we have to balance the needs of that large natural system with the demands of this growing population still in Dade County, so with that we had to put a lot of things on the table and, frankly, get very creative. Dade County has gone from somebody we used to look at and say, look, we wish you'd do more to right now in their plan they're actually going to be implementing some very cutting -edge technologies and using reuse that actually is going to help directly recharge above some of their well fields and lessen some of the demands that we would have released water from the Everglades. One of the things we have to deal with in our district is that when you look at the overall demands, there is over six billion gallons a day of water consumed in our -- in the state of Florida. The South Florida Water Management District has a significant amount of that that we actually use. When you look at just the increased amount of water that's going to be demanded out to the year 2025 in the future, our district represents half of the State's increased demands. Those demands include many users, many user classes, and all these user classes are in Dade County, and one of the ones that we're also working with the Commission in is the new expansion of the Turkey Point Power Plant, so there's, again, some creative things they're moving forward. Public water supply will grow by almost two billion gallons in our district. As we move forward into the way we do planning now, it's changed significantly. In the past, we were a regulatory agency that commented on the technical documents you submitted for your permits. Today we're involved in a change in legislation that occurred in 2005 which makes water resource, the actual place that you pull your supply from, a currency issue; no different from schools or from roads. So what our requirement now is to make sure not that you have -- or not that Dade County has the facilities to treat the water; it's is the resource available? And that's what made the permit process and our relationship much different The first test of the State's new laws were in the Dade County authorization and that's -- again, we were actually paving not only a very large permit, but new roads the entire way we were doing the discussion. The purpose is to better link water use and water supply planning with all your growth management issues, and again, in the past it's something that has just been sitting out there waiting for the permit to come forward. The bigger key in this is the inexpensive groundwater resource that we've relied on for decades in Florida has been used. All the supplies from now on are going to be much more expensive high-level treated alternatives. They include much deeper water. Instead of going 60, 90, and 100 feet, 300 feet underground, you now will be looking at 1, 200 feet; be looking at reverse osmosis; you're going to looking at reuse applied in areas to help supplement irrigation, but the easy access water to the Everglades is no longer available. The traditional sources, as I said, are limited. We can no longer allow the impacts to occur. The cumulative impacts of all the millions of people in southeast Florida have had impacts that we are trying to ameliorate right now with projects in the Everglades, but we couldn't keep up with the way the demands were going, and that's why we actually changed the way we were doing this. One of the very important pieces that our board has given us direction is that your use of water, the traditional use of water one time, and then offshore discharging it or depot -injecting it, is no longer going to be considered reasonable beneficial in our permitting process, so we are going to be looking at Dade County, your contractual relationship there, that is this wastewater now being provided in a way that it's used more than one time. With that, you all had some requirements through Dade County. I'm going to kind of shorten the presentation at this point. Your requirements will be to make sure your planners are working very closely with Dade County because what they ask for in their permit is what you will either grow against or not grow against, and they are providing the water supply determination and that resource for all the local governments that are customers there in the regional treatment facilities. So with that, I was going to let Mr. Yoder come up at -- Commissioner Sarnoff Can I ask a couple questions that --? Mr. Merriam: Certainly. City ofMiami Page 6 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff I think this is South Florida Water Management questions. First off, for the folks in the audience and the people that are going to be watching this on TV (Television), there's something called the South Florida Water Management District, which is -- sometimes we refer to it here as "Big Water." Then there's the WASA, which is the Miami -Dade system, and permits are confusing things. But what wanted to get everybody to understand is Lake Okeechobee, we hear time and time again, is below normal and pretty much has been below normal, that recall, for the past two or three years, andl know that's not our main source of water because our main source of water is called the Florida aquifer. My question is what's the relationship between Lake Okeechobee and the Florida aquifer? Does that provide back pressure? Does that --? How does that interact? Because should we be concerned that the lake is dropping, even though we don't take our water directly from Lake Okeechobee; we take it from the Florida aquifer? Mr. Merriam: And I'll -- and Commissioner, if you don't mind, I'll connect all the dots for you, and part of it is Lake Okeechobee, as we refer to it, is kind of the liquid heart of South Florida. It is not just a lake that provides recreational opportunities and water supply to agriculture. It also supplies backup water supply should the lower east coast of Florida, Palm Beach, Broward and Dade counties, water resources drop to dangerous levels. What we would do is move water from Lake Okeechobee into the water conservation areas. The source of water that the main piece of the pie that Dade County withdraws from is called the Biscayne aquifer. It's a very porous, very shallow, rarely accessible aquifer. That's the one we've capped. At that -- what happens at this point is if you happen to have a drought over just the lower east coast, which has happened decades in the past, we have the ability through our canal system to move water into the water conservation areas to provide a backup supply in that in order to recharge that. If you did not have that -- the range of the well fields that are here are very shallow -- two things would occur. One was, you'd either have a direct impact on the Everglades withdrawing that water and drawing down the Everglades to a lower elevation, or you would get to the point where a lot of those shallow wells would be at risk because they are not deep enough to manage all those significant drops, so it's -- Commissioner Sarnoff Where does salt water erosion come in? Mr. Merriam: Salt water intrusion comes in when the pressure of the fresh water out to the west no longer pushes hard enough to keep the salt water out in the Atlantic Ocean. You have a salt water wedge that's moved in a few miles into your urban area. The well fields that Miami -Dade uses are not in that area. Most of them are more to the north and to the west and closer to the Everglades, but frankly, it's the more productive area. Chair Sanchez: Commissioner Regalado, you're recognized for the record. Commissioner Regalado: Thank you, Mr. Chairman. Would it take a lot of resources -- and, first of all, thank you; it's very informative -- but would it take a lot of resources to change the way in which South Florida Water Management handles the storms? What mean is, every time that you tune in the radio and TV, they say a storm is coming. You know, we can expect, you know -- Hurricane Camille is coming; we can expect seven, ten inches of rain. We, in the City, our main concern is, God, I hope that South Florida Water Management has open the floodgates in the canals because that's the whole thing with flooding our streets. And remember the no -name storm that, you know, something happened; the floodgates were not open and -- at least, Flagami was flooded up to three or four feet. Could we save that water just in case, instead of sending that water off to the Everglades? Would it take a lot of resources to recoup that water and keep it and save it for a future date after you open the floodgates and reduce the level of the canals? Mr. Merriam: You ask a excellent question, and one of the most difficult things we wrestle with City ofMiami Page 7 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 in Dade County is, as you all are very aware, Dade County is not only very flat; it is also -- doesn't rise very much as you move out to the west. When we move out as far west as Sweetwater that we are controlling water within a half a foot between flooding and not flooding in those canal systems. Since the no -name storm, we have actually improved the conveyance in the C4 canal, which helps some of that water that is conveyed. We've also improved two structures, the S25 structure and the S26, which are both coastal structures, and they're able to pump against the tide. Part of the problem we had in the no -name storm was as the wind was blowing and the tide was coming up, the only time we could discharge was when the tide was at low stage and -- Commissioner Regalado: Right. Mr. Merriam: -- we could open the gates. We have retrofitted those pumps several years ago so they can actually move the same capacity of water as the gates open against high tide. We also now work with the service center very closely. They have a direct line in the operations of the county, as well as many of the cities. When we get those phone calls -- we staff our operations room 24 hours a day. We see the same problems, or they communicate something's happening that we may not see. We rely on them as additional eyes and ears to actually make some of those changes in the system to lessen those impacts. We're not going to fix the flooding in Dade County, but we can do the best we can with the system we have, and we're committed to do just that. Commissioner Regalado: Right. But was asking, could it -- would it be possible to save that water? Mr. Merriam: We try, and the problem is the water conservation in year three can only get so high before it starts to actually -- and that's the Everglades out to the west of you -- it can only get so deep where the seepage from that actually will impact your subdivisions or the County subdivisions right up against that. We also have to be careful how we stack that water, but the other critical piece ofDade County is you don't have the storage to hold the water long enough to take the benefit and that's -- Commissioner Regalado: Right -- Mr. Merriam: -- where we -- Commissioner Regalado: -- and that was my point -- Mr. Merriam: (UNINTET,TIGIBLE). Commissioner Regalado: -- no storage. Mr. Merriam: Yeah, (UNINTET,TIGIBT,F) storage. Commissioner Regalado: Would it be too costly? Mr. Merriam: It's -- you know, what part ofDade County do you want to put that storage in? The water conservation areas are full. We use them to their maximum. It's where do we do that? How do we retrofit the system to put pumps in place? And then, secondly, how much land do you have to use in order to store that? Commissioner Regalado: Thank you. Chair Sanchez: All right. Thank you. Mr. Merriam: Thank you. City ofMiami Page 8 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: There are three presentations, correct? Mr. Merriam: Yes. Got Doug Yoder's up for him next -- Chair Sanchez: Okay. Mr. Merriam: -- so he comes up. Chair Sanchez: May I --? I believe Commissioner Seijas wanted to address the Commission? Natacha Seijas (Dade County Commissioner): Good morning. I'm Natacha Seijas, District 13, Hialeah; very proud, andl can't use this. Give that one up. Thank you for allowing me to be here. I am here as the chair of the issues of water and other things. Mr. Regalado, regards to your wife, I hope we'll be looking at her soon; and my friend Angel over there, and Michelle Spencer [sic], and you, Mr. Chair, and Mr. Sarnoff. We are here, more than anything else, to bring the information needed because I think when governments work together -- and it has been proven -- we really do move forward and the proof was in the South Florida Management. It took us a few years; it was true, but thanks to Chairman Buermann, thanks to Mr. Nick Gutierrez from the board, who represents us, who has just walked in, and all the other board members who might not be here; and Carol Wehle, the director, and Chip Merriam. A lot of hours were put into this, a couple of years, too; but we came about the right way, the right way for the people because that's what we're all here for, the right way for the people. We're going -- you're going to hear one of the things we're going to be doing. We're going to be able to do a conservation of at least 46 percent of the water. That is unusual and not expected, so we're looking forward to how we do it; but without the municipality, certainly we would go nowhere, so I am only here to tell you -- our staff is here. I'm only here to tell you any information you wish. IfI -- I'm close, just down the road. I don't have district office. I'm always down in the county, so you can call me andl would be more than willing to come; and you have an easy way to get a hold of me, because I'm sure your Manager, Mr. Hernandez, has all my numbers, if any of you don't have it. So thank you for allowing us to be here. Thank you for allowing us to give you the information you obviously seek, and thank you for joining us in being able to protect the Everglades because that is our biggest pride, and we're very committed to that. Thank you so very much. Chair Sanchez: Thank you, Commissioner. It's always a pleasure to have you here. Go ahead with the next presentation. If I could kindly ask that -- I know that some of the presentations are basically going to touch on some of the same issues. For the -- Douglas Yoder: Right. Chair Sanchez: -- time sake, if we could -- Mr. Yoder: I will expedite this as much as possible. I'll compress 18 months of planning into five minutes here. Chair Sanchez: Wow. Mr. Yoder: My name is Douglas Yoder. I'm the deputy director of the Miami -Dade Water and Sewer Department, and over the past 18 months we developed a plan which has now been recognized by the South Florida Water Management District in the consumptive use permit that will provide water supply for all of our service area, which includes all of the City ofMiami, for the next 20 years. Historically, as Chip said, we got all of our drinking water from the Biscayne aquifer, the shallow aquifer, which is just a matter of putting down wells and providing some treatment and distributing the water. You'll recall that in 1972, the County and the City merged their respective Water and Sewer Departments or authorities, which has created now the City ofMiami Page 9 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Miami -Dade Water and Sewer Department, which is a regional water and wastewater utility; and that really has made a significant difference. I think our friends from the district would acknowledge, in terms of our ability to provide alternative water supply and to do it in an efficient way. In May of 2005, which is kind of our planning year, we were pumping 347 million gallons a day out of the Biscayne aquifer to meet our customers' needs. It was at that point that the district said that's as much as the regional system can handle, and therefore, all future needs have to be met from another source. We calculate, we forecast future needs on the basis of population projections and per capita water consumption. The population projections, which are developed by the Planning Department, indicate that in our service area, the population is going to increase from two and a quarter million people to about two point seven three million people over the next 20 years. And, incidentally, in the City that means going from roughly 400,000 to a little over 500,000 in the next 20 years. At the time that we did this calculation, the per capita water use was 155 gallons per person per day. Now that doesn't mean that each of us used 155 gallons. It means that the total amount of water that we produced, divided by the total population, equals that number. And just as a sidebar, we just looked at the 2007 per capita water consumption, and partly because of the conservation programs that we already have in place and because of the mandatory use restrictions, it looks like our per capita consumption for 2007 was down to 140 million -- or 140 gallons per day per person, so there has been a definite impact. Using these numbers, we calculated the need over the next 20 years of providing an additional 74 million gallons a day to meet the demands that we think will be there. How did we -- how are we going to do this? Well, number one, as Commissioner Seijas said, conservation is the cheapest way to meet future water supply needs, and over the next 20 years, we expect to reduce demands by 18 million gallons a day out of that total 74 million gallons. Reclamation of wastewater either to provide irrigation or to replenish groundwater is going to provide 38 million gallons, almost half or slightly over half of the future water supply demand; and we are going to use the Florida aquifer, the deeper, saltier aquifer, to produce almost 18 million gallons a day of that future demand. And that's -- that comprises all of the water that we will need over the next 20 years. Commissioner Sarnoff Are you going to go into more depth about reclamation? Mr. Yoder: I can, if you like. I can -- andl think you will see -- Commissioner Sarnoff Okay. Mr. Yoder: -- in these slides. Basically, the way the water reclamation is done, you take waste water and put it through the series of additional treatment technologies, including reverse osmosis, which is a very, very fine filtration system. The product of that is water that meets all drinking water standards. In our case, we are going to recharge the groundwater, which will enable us downstream of that to withdraw an equivalent amount of groundwater, which then goes through our regular water treatment plant system. So there are multiple barriers there, multiple treatment systems. It's being done now in California, and it's expensive, but it works well. To do all these things, we estimate it's going to cost about $2.6 billion in capital projects over the next 20 years. We're putting in place an allocation system so that we can keep track not only of how much water we are producing, but of how much water we have allocated to uses which have not yet come online. You don't need to change your procedures in how you deal with building -- the building permit process. People get a water use agreement with us before they get a building permit from you, and that won't change; and this whole plan gets reviewed every five years to make sure that all of our assumptions are correct. Commissioner Sarnoff Can you stop right there for a moment? Mr. Yoder: Sure. Commissioner Sarnoff So -- 'cause one of the reasons I wanted to have this discussion was I City ofMiami Page 10 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 wanted to know that, as we sit here and we continue to approve buildings -- and our buildings, we tend to be, especially in my neighborhood, the very high-rise buildings -- Mr. Yoder: Right. Commissioner Sarnoff -- so high density. So I know there's going to be a lot of toilets flushing. I know there's going to be a lot of water usage that somebody is looking at and deciding that these buildings fit within a plan -- Mr. Yoder: Yes. Commissioner Sarnoff -- and that this plan has thought through what sometimes people call skeletal buildings, which really means the building that was just approved before it was factored in and the building before that was factored in. Mr. Yoder: Yeah. Commissioner Sarnoff So this is occurring -- Mr. Yoder: That -- this is occurring. Commissioner Sarnoff -- at your level? Mr. Yoder: At our level it is -- actually, under state law it is our responsibility to certify that water is available prior to the time that any certificate of occupancy is issued, and that really happens before building permits are issued. You're correct. So in terms of what the City can do, certainly as Commissioner Seijas said, encouraging conservation. I think our staff has been working with your staff on an ordinance that may be upcoming that will address that within the City. You've already been in the business of encouraging green buildings, which is a good thing. We have ongoing programs for conservation that will subsidize the installation of water -conserving fixtures for people in general and for seniors in particular; doing public education on conservation is important, and enforcing the district's rules on water use restrictions, I think, is something that we all need to do as well. So I would be glad to respond to any additional questions that you might have at any time. Chair Sanchez: Commissioner Regalado. Commissioner Regalado: Thank you, Mr. Chairman. Two things: When would the Homestead plan for --? That's the reversal osmosis plan in Homestead, Florida City, the one that Clorox and the facility that you're trying to build in South Dade for processing the water? Mr. Yoder: Well, let's see if I'm under -- the -- Florida City, I believe, is working on a reverse osmosis water plant for their water system. Commissioner Regalado: Right, but the County also -- I -- Mr. Yoder: Florida City has their own -- Commissioner Regalado: No. I understand that. Mr. Yoder: (UNINTELLIGIBLE). Right. Commissioner Regalado: Hialeah. But I read that the County was planning some project down south, Naranja or -- in order to -- the Clorox plant next to it, the $10 million. Something like that was presented sometime ago. City ofMiami Page 11 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Yoder: I'll need to maybe get more information on that -- Commissioner Regalado: Okay. Mr. Yoder: -- to help you out with that. Commissioner Regalado: The other thing is desalination. Is that cost-effective? Mr. Yoder: Well, it's -- desalination is expensive. It's very energy -intensive. It uses reverse osmosis, the -- Commissioner Regalado: Right. Mr. Yoder: -- standard technology, but because seawater is much saltier than Floridan aquifer water, it makes more sense to go to the Floridan aquifer because it takes less -- you get a better return on the amount of water that you can get. I think, as long as we still have additional wastewater available that can be treated and recycled, it would be more likely that we would use that before we would go to ocean desal (desalination), but it's true that we are in a location where we will always have a supply of water. It's only a question of how much it's going to cost. Commissioner Regalado: The reason I'm asking is because the U.S. (United States) Naval base in Guantanamo -- in Cuba -- when in 1961, the Cuban government cut their water supplies, the Navy rushed and had a desalination plant installed; and I've been there many times as a reporter, and you have a small city, 7,000, 8,000 -- Mr. Yoder: Right. Commissioner Regalado: -- sometimes up to 13,000 residents that live off the desalination plant Mr. Yoder: Yeah. Commissioner Regalado: -- and it works. Mr. Yoder: It definitely works. And you know, when Key West used to be on -- Commissioner Regalado: Right. Mr. Yoder: -- desal and when they built the large pipeline down from Dade County and took -- they've gotten their water from Dade County; it's just a lot cheaper, so they shut down their desal plant, but they, too, are now building a reverse osmosis plant to use Floridan aquifer water to meet their future water supply needs. Commissioner Regalado: Thank you. Chair Sanchez: Douglas, I want to thank you for this presentation. I think it's very informative as to a lot of important issues affecting water. I think water availability is an issue that is on the mind of a lot of residents in our community, and know that you touched on the issue of the plan. When you considered in negotiating the 20-year plan use permit, did the County and Water Management take into consideration all the development -- new development in downtown and in Dade County? Mr. Yoder: Well, yes, to the extent that the population that would occupy those units would be included in the population projections for the time period between now and 2027, so the City ofMiami Page 12 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 accuracy of our water supply forecast is really a function of the accuracy of the population projection; and that's one of the reasons why we will go back every five years and carefully review that. I think it's certainly true that there're going to be a huge number of units that are coming onto the market. The question of exactly when they're going to get occupied is uncertain, but if the City's population forecast of growing by 100, 000, which is increasing by about 25 percent over the next 20 years, you'll have people to occupy those units, I would think. Chair Sanchez: What governs the determinations of permits for water supply and future growth? Who governs that? Mr. Yoder: Well, there are, I guess, two pieces to this at least. One is that we, as a utility, need to have the consumptive use permit from the Water Management District to be able to demonstrate that water will be available to meet future needs. In the land use arena, the Department of Community Affairs reviews everybody's comprehensive master plan -- you know, development plans, and when you do a comp plan amendment, you have to be able to demonstrate that the water is going to be available for whatever plan amendments you're putting forth. Now, in your case, you're going to rely on our water supply plan -- Chair Sanchez: Right. Mr. Yoder: -- to be able to verifi, that. Chair Sanchez: Okay. And my last question is currently, the City ofMiami, through the Mayor's green initiative, is looking at creating a comprehensive water conservation ordinance. Mr. Yoder: Right. Chair Sanchez: We're focused on that. Is there anything more that the City could be doing? And we do have key players on that committee. As a matter of fact, Lucy Perez, who was from the Water Management, sits on that board. Is there anything else that we could be doing as a city proactively to assure that the consumption of water is restricted and we could help -- Mr. Yoder: Yeah. Chair Sanchez: -- you, along with all the residents, accomplish that goal? Mr. Yoder: Yeah. I think if -- in your ordinance, for example, you address a landscaping so that you end up with landscaping that doesn't require a lot of water. That's a good thing. The public education and outreach effort, as you are engaging with your citizens, let them know about the importance of conservation, let them know about our conservation programs that we have in place. You may have spoken with Maribel Balbin, who is our water conservation manager. I know she's been talking with your staff so that the word gets out and people can replace, for instance, their old toilets with low consumption toilets, and they -- when they replace a washing machine and so on. And third, as I said, enforce the water use restrictions which are now in place and may be in place as long as we have drought conditions so that people know that it is being taken seriously. Chair Sanchez: On a key issue that you spoke of -- and I tend to agree with you -- I think education is very important. Not long ago I heard a commercial on the radio. It was a good friend of mine, Marta Flores, who was promoting water -- you know, conserving the water, and it was very informative to people. Is that where you're heading at, spending money and campaigns to educate people as to what they could do, what benefits are out there that they could take advantage of -- Mr. Yoder: Exactly. City ofMiami Page 13 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- through either City or County or State assistance to make sure that they do help us out with water -- Mr. Yoder: Yeah. That's exactly right. Chair Sanchez: -- consumption? Mr. Yoder: I think if people know, they will -- they'll make an effort, and you know, we have -- we sort of have this problem that we go from periods of too much water to periods of not enough water, and so half the time we're concerned about water supply and drought conditions, and the other half is, we discussed earlier, we're concerned about flooding; and it's different than if we were in a desert where there's never really any water much, at all, so it's a -- it's kind of a hard message to get across on a consistent basis. Chair Sanchez: Well, Douglas, thank you so much. Are there any other questions? Vice Chair Spence -Jones: Yes. Chair Sanchez: Commissioner -- Vice Chair Spence -Jones, followed by Commissioner Sarnoff. Vice Chair Spence -Jones: Thank you, Mr. Chairman. First of all, I want to thank South Florida Water Management for coming this morning and Commissioner Sarnofffor having the vision to even have you come in front of the City Commission to even address this issue. I've had an opportunity to work with the South Florida Water Management in my district. I don't have a lot of areas where there is a lot of waters or rivers or canals in the area, butl do have two projects that do know that South Florida Water Management has worked really hard with us, which is the Seybold Canal, and hopefully, we can continue to work along with you from the City standpoint to really begin addressing the dredging issue. I know that we had -- financially had some challenges, but hopefully, we can, you know, find a way to resolve the issues in the Spring Garden areas. I just want to just add on to what the Chairman just mentioned because I think it's really important. You know, it's really making sure that we educate the public on how important it is for them to conserve, andl would like to at least see -- and I'm -- at leastl heard this morning that there is some sort of effort that's taking place to educate our public, but as was stated earlier, when we start talking about, at least in my district, the affordable housing projects that are taking place where we have, you know, 100 or 200 units going in, it would be great to be able to have that kind of information to share with these major housing -- affordable housing developers on things that they can choose instead of choosing -- whether or not it be sinks or pipes or whatever the case may be to conserve water, they will at least use this as an option. I know in my district we're focusing on doing some green building of houses, so we're considering some of those things in the new housing that we're putting from a -- at least from a single-family household perspective, but these major projects where you have families that are coming in that has not really been educated on how important it is to make sure, you know, the faucets -- Mr. Yoder: Right. Vice Chair Spence -Jones: -- are turned off and -- Mr. Yoder: Exactly. Vice Chair Spence -Jones: -- so I would like to at least say to our staff and to the City Manager, I would definitely like to see that there's some sort of serious public outreach campaign that's put in place that really begins to address the issue. I don't know if that's a Robert Ruano from Grants -- Is that you? -- working along with the South Florida Water Management to put together a program that does that, or how are we addressing it from the City's side? City ofMiami Page 14 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Robert Ruano: Yeah. Robert Ruano, director of Grants and Sustainable Initiatives. Yes, we are work with the Water Management District and we are working with Miami -Dade Water and Sewer. As a matter of fact, he alluded to an ordinance, a draft of an ordinance that we've been working with their staff. Vice Chair Spence -Jones: Okay. Mr. Ruano: And we'll have it prepared for the Commission in the next several months. Vice Chair Spence -Jones: And it includes a public outreach campaign? Mr. Ruano: Yes. Vice Chair Spence -Jones: Okay, great. All right. Wonderful. Thankyou, Robert. Thankyou, Mr. Chairman. Chair Sanchez: All right. Commissioner Sarnoff. Commissioner Sarnoff Yeah. I just have -- I want to make an observation. I've lived here about 21 years, and when I first got here, I noticed it used to rain at about 3 o'clock for at least eight or nine months of the year, andl could set my watch by it. I'd say in the past seven to ten years, I could no longer set my watch by that rain. So by my estimation, it feels a lot more dry than I've ever noticed it to feel in South Florida in the past decade, and l just was curious if you equally have that -- make that same observation as well? Mr. Yoder: Well, I think the -- I mean, the weather patterns do tend to vary historically on a -- kind of a, I don't know, more or less of a ten-year cycle where you get periods of drought and then you get periods where there is more rain; and it may well be that those patterns are shifting, possibly in part, because of climate change issues that are going to change rainfall patterns in ways that we don't fully understand. One of the benefits of the alternative water supply plan that will meet all of our future needs is that all of that water is basically drought proof. It will be there because it's not coming out of the regional system, which is dependent on rainfall, so that is going to help us to be more resilient in these drought conditions. Commissioner Sarnoff And one of my other questions is -- we all know what's going on in Atlanta. We all know what's going on in North Carolina. We all know Lake Lanier is no longer Lake Lanier. It's better known as probably Barren Lanier. Seattle, Washington, I was surprised to learn through Senator Patty Murray this past weekend, is actually going through a drought as well, or I shouldn't say a drought. They get plenty of rain. They don't have adequate water for the building construction that they've created. Are we going to become an Atlanta or a Seattle? Mr. Yoder: We hope that the plan that we have in place will help us to avoid that situation. I grew up in Seattle so I'm familiar with the rain there. Commissioner Sarnoff And last question -- I apologize, but this is coming from one of the folks in the front over here. One of the highest users, they say, is the nuclear power plant at Turkey. How much water does the nuclear power plant consume? Mr. Yoder: Well, if they're -- they may be referring to the proposed new power -- addition to the nuclear facility there. We've actually talked with Florida Power & Light and will continue to do that. That's one of the conditions in our permit. They are looking at a daily demand of about 90 million gallons a day, and our idea would be that that would come from surplus wastewater that we have that we're not using for some other purpose. City ofMiami Page 15 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Right. They would be able to use the brown water, you would think. Mr. Yoder: Yeah. They -- it would get treatment, but -- so it's largely a matter of a cost-effective way to get it there. Commissioner Sarnoff Thank you. Chair Sanchez: Doug, thank you so much. Mr. Yoder: You bet. Chair Sanchez: We'll go on with the next presentation. Linda. Linda Brien: Yes. Chair Sanchez: Yes. You're recognized for the record. Linda Brien: Good morning. My name is Linda Brien. I'm with the Florida Department of Environmental Protection. Do you need the address? I've got the -- got it written down there. 400 North Congress Avenue, down in West Palm Beach. I'd like to thank you all for having us here, and I'd also like to just take a moment to introduce our district director, Jack Long. Chair Sanchez: Welcome, and thank you for being here with us today. Ms. Brien: Well, I was asked to talk about reuse and ocean outfalls -- Chair Sanchez: Yes. Ms. Brien: -- and when you put those two together, you get recycling of ocean discharges, which is really appropriate for today because we have -- that relates to water supply -- there's 300 million gallons of water that's wasted out to the outfalls; and that's three counties, Palm Beach, Broward, andMiami-Dade, which is equivalent to 110 billion gallons every year. There is -- and 26 percent of the projected total public water supply for 2025, so that water could be put to a good use for the maxed out Everglades system and the Biscayne aquifer. And l just have a visual here of where the ocean outfalls are located. Palm Beach County has two, Broward has two, Miami -Dade has two. And those six outfalls, there's a permitting capacity of 415 million gallons per day that's wasted; existing flows of 300 millions gallons per day, of which 200 of that is from the Miami -Dade outfalls. And as you can see there in the chart, the percentage of reuse is -- averages about six percent for the Miami -Dade and Broward outfalls for their systems, and reuse in Florida and other areas of the state have 61 percent of the domestic wastewater that's reused every day. And just a -- Commissioner Sarnoff Let me ask you a question. How is it --? Ms. Brien: Okay. Commissioner Sarnoff Go back to that slide. I look at two counties, Orange County, Hillsborough County -- I used to live there -- I look at Leon County, a small county, but how are they able to get almost 100 percent and one of the other ones, you know, 40/50 percent, and there we are languishing at 3 or 4 percent? Ms. Brien: They've been working on it for many years and putting the treatment in place to do the -- to treat wastewater because, really, they -- some utilities think of it as disposal; it's a way to be able to get rid of wastewater, but use it productively at the same time. And one of the things with Miami -Dade and Broward County, you know, you've had the blessing of the Biscayne City ofMiami Page 16 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 aquifer, which is a very prolific aquifer, so it's provided, you know, plenty of water all these years and, as far as recycling, it has not been a top priority. Commissioner Sarnoff So analogous to gas, we thought there was enough gas to last forever, but then -- Ms. Brien: Right. Commissioner Sarnoff -- we woke up and said maybe there isn't? Ms. Brien: Exactly. Right. Commissioner Sarnoff Yeah. Ms. Brien: And l just wanted to just kind of give you just a little overview on your ocean outfalls; many people don't know about them. The one in the north district, in North Miami, was -- has been operational since the 1970s. It's a long pipe, 11, 700 feet, that has 12 ports at 108 feet. They have to be 90 feet per criteria. There're 112 million gallons per day is the permitted capacity, and there're four deep injection wells as backup. Over in Virginia Key, you've had an ocean outfall that's been -- was constructed in 1956; it has two parallel pipes that are 18,800 from the shoreline, and there's 143 million gallons that is permitted capacity. EPA permits the ocean outfall because that's in federal waters, and DP, the State, permits the treatment plant only. There are no deep injection wells, and there are a lot of concerns about the outfalls because it's minimum secondary treatment, which is the lowest quality of treatment allowed by Florida law that removes about 85 percent of the total suspended solids with minimal nitrogen and phosphorus removal, and those nutrients are the number one cause of surface water pollution in Florida, and it acts as a fertilizer for algae growth and then that impacts the coral reefs in the ocean outfalls; one of the sources of nutrients. In other parts of Florida, there is no ocean outfalls. There's much higher levels of wastewater treatment, more reuse, and in the Tampa Bay, Indian River, Florida Keys, for example, they have advanced wastewater treatment to their receiving waters, which is 98 percent removal, and they're in nutrient removal also. In the ocean outfalls, it's basically dilution, depending on mixing zone in the ocean. And what will it cost? It could cost anywhere between 7 to $40 per month in rate increases to shift the water from the ocean outfalls and reuse that water. And, you know, the reason there's such a big range there, it really depends on what technology you use of treatment because there's different levels of treatment for just irrigation. Our minimum requirements are high-level disinfection with filtration, and if you go to the higher levels, like Dr. Yoder was referring to, then it's going to be more expensive. If you go to RO, UV (Ultraviolet) maybe hydrogen peroxide, so you know, it just really depends on the different treatment levels of how much it's going to cost, but you do have to look at it as an investment in the future. And if we do nothing, then the cost to develop other new water supplies could equal or exceed the cost to eliminate the outfalls, and that was one thing that Mr. Merriam had mentioned; that water is just going to get more expensive. You - - it -- if we don't do nothing [sic], then we're more susceptible to drought conditions; and then there's always that nutrient contribution to the coral reefs, which contributes to 61, 000 jobs and $1.9 million is brought in from our coral reefs. Chair Sanchez: Wow. Ms. Brien: As far as will there be public support? We've had a lot of public outcry, and we -- hundreds of petitions and e-mails (electronic) not to issue permits for ocean outfalls. And you -- as you can see recently in Miami Herald, it said one of the South Florida's dirtiest secrets is the daily dumping of a half billion gallons of sewage into the Atlantic Ocean; Sun -Sentinel: Purple pipes can reclaim waters; the best way to go green, and there is a lot being done. There's progress being made. In Palm Beach, there'll be 100 percent reuse in the next couple of years, andMiami-Dade, as Dr. Yoder explained, they will be at 40 percent; that's in the next 18 to 20 City ofMiami Page 17 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 years, which is being primarily diverted from the south injection wells. However, hopefully, some of that water can come from the Virginia plant and be diverted down to the south plant, or if the power plant expands, then maybe some of that water can be used from Virginia Key. As far as Broward County, we still have yet to hear what their plans are. And that's pretty much it for me. So I really appreciate your interest in reusing -- Commissioner Sarnoff I -- is -- can I ask a question -- Chair Sanchez: Thank you. Ms. Brien: Yes. Commissioner Sarnoff -- real quickly? Chair Sanchez: Commissioner Sarnoff. Commissioner Sarnoff Is this the first time you're seeing sort of what I call a good perfect storm, the first time -- because you're DEP and you're concerned about discharging polluted water into the ocean? And is this the first time you're seeing people who want to use water reuse water? I mean, here you are all these years and you probably said, don't discharge this waste into the ocean; it's not treated properly. But is this the first time you're seeing, because of permitting fee -- because of permitting that people are now listening to reuse of water at a level they've never listened to before? Ms. Brien: I believe so, especially going to this restriction with one -time -a -week watering. You know, people really feel that, so I really think that this has become much more serious and in front of people than it has in the past. That's -- Chair Sanchez: Any further questions? If not, thank you so much. Ms. Brien: Okay. Chair Sanchez: Thank you so much for the presentation. City ofMiami Page 18 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 PH.1 08-00019 RESOLUTION Department of Public Works PUBLIC HEARINGS A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), ACCEPTING THE PLAT ENTITLED "OASIS ON BISCAYNE BAY," A REPLAT IN THE CITY OF MIAMI OF THE PROPERTY DESCRIBED IN "ATTACHMENT 1," SUBJECT TO SATISFACTION OF ALL CONDITIONS REQUIRED BY THE PLAT AND STREET COMMITTEE AS SET FORTH IN "EXHIBIT A," ATTACHED AND INCORPORATED, AND THE PROVISIONS CONTAINED IN SECTION 55-8 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, AND ACCEPTING THE DEDICATIONS SHOWN ON THE PLAT; AUTHORIZING AND DIRECTING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE PLAT; AND PROVIDING FOR THE RECORDATION OF THE PLAT IN THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. 08-00019 Legislation.pdf 08-00019 Exhibit.pdf 08-00019 Exhibit2.pdf 08-00019 Exhibit3.pdf 08-00019 Exhibit4.pdf 08-00019 Summary Form.pdf 08-00019 Memo.pdf 08-00019 Notice of Public Hearing.pdf 08-00019 Memo2.pdf 08-00019 Notice of Public Hearing2.pdf Motion by Commissioner Gonzalez, seconded by Chair Sanchez, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sanchez, Regalado and Spence -Jones Noes: 1 - Commissioner Sarnoff R-08-0048 Chair Sanchez: Let's go ahead and take up PH.1, which is a plat, The Oasis on Biscayne Bay. We have someone who wants to get home to be with their baby. Stephanie Grindell: Stephanie Grindell, director of Public Works. PH.1 is a resolution accepting the plat of Oasis on the Bay, which is located on Northeast Bayshore Court, between Northeast 79th and 80th Streets. Chair Sanchez: All right. This is a plat. It's a public hearing. It's a resolution. Is there a motion to either up or down? Commissioner Sarnoff I'm going to make a motion to approve only for discussion purposes. Chair Sanchez: All right. There's a motion. We need a -- Commissioner Regalado: Second. Chair Sanchez: -- second for the purpose of -- Commissioner Regalado: Second. City ofMiami Page 19 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- discussion. For the record, we're discussing PH.1, which is a resolution. There's been a motion by Commissioner Sarnoff, second by Commissioner Regalado for the purpose of discussion. Before we discuss it, let's hear the presentation, and then we'll open it up to the public. All right, Madam Applicant, are you ready? Lucia Dougherty: Yes. Good afternoon, Mr. Chairman, members of the Commission. Lucia Dougherty, with offices at 1221 Brickell Avenue, here today with Javier Avino and Iris Escarra from my office, as well as Eric Fortin, who is the project representative. Last month we had a request to give us an extension of time in order to record the plat. At that time there was no action by the Commission, so what we did is we refiled the tentative plat, and we're back before you on final plat -- for a final plat approval. This plat received final plat approval, the exact same one, in June 14, 2007. And this was a time, you may recall, we addressed some of Commissioner Sarnoffs concerns at that time, and particularly, as it relates to a billboard that's on our property, as well as the City's park property; and one of the conditions that we don't pull a permit was imposed at that time. We cannot pull a building permit until the park property billboard is removed. But prior to that, in January 25, 2007, the City Commission on -- for the second time, also approved two street closures for the site, and at that time we also agreed to improve the park that we had agreed to give to the City. We had, on this property, nine public hearings. Five times it was before the City Commission for either street closures, final plats, or the Major Use Special Permit; and at that time, I must tell you that it was unanimous approval by every board that we went to, except for two Zoning Board hearings, and they were two to five and one to seven -- seven to one. And we were very, very proud of the way that we worked with the neighborhood in the connection with this project. And, Commissioner Sarnoff I know this is not part of what you're here today, but I don't know that you've ever had a chance to see it and -- see the project, and it might be worthwhile showing it to you, if that's something you'd like to see. We actually met with our neighbors prior to ever coming across and asking for any kind of approval, and let me tell you what could have been done as of right, if you look at the zoning map. The pink is C-1. The yellow is office. Remember, those are our two unlimited height zoning classifications. Here, all of this in brown is R-3. It's not single family. The property in question is now zoned R-4 on one side and C-1 on the other side, but one of the things that the neighborhood said -- when we first proposed this project, we were going to put a parallel building right on the water that was something like 40 stories tall with a garage behind it. At that time the neighbors went completely ballistic, and they said there's no way that we could approve this; and the Commission, you know, in the newspaper basically said this is not something that's acceptable. So we went to the neighbors before we ever put a pen to paper or a replied, and we did -- we proposed five different buildings and five different sites. So as it came out, here's what we ended up with: two buildings instead of one, so you have air and flow -through; we reduced the height, and let me just show you this area here. The area that you're looking at here, the lower scale portion, is actually the portion that is facing the R-3 across the street; so the R-3 portion is backed up against a 50-foot height structure, and all of the big portion of the structure is now on the highway. What you see in black here is the park that we're -- donated to the City, and it's part of our commitments to the City to actually improve the park and remove the billboard So this is what we had agreed to the City, and again, the various things that we agreed to do was make two buildings and not one, reduce the height down to 20 stories, make an R-3 structure that faces the R-3 property, donate the land to the City, clean the north and south canals at Bay Crest, build a new wall and landscaping on 81 st Street, improve the park, and now take down the billboards as well, and the bay walk. Oh, that's a very important point. One of the things that the City required us to do is to build a public access and bay walk all around the front and also have a waterfront restaurant. Currently, there's no access to the water. You can't get to this water, and there's nothing that would allow you to come through here; so this is the public access on our property and a public bay walk that was committed. So the very first meeting that we ever had with the neighbors was with Sandra Seals (phonetic), who lives two houses away from the street closure. Then we met with the Shorecrest Board. We met with people within 500 feet of the site. We met with the general membership. We met with two more board meetings, both before and after the City Commission vote. Besides the City ofMiami Page 20 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 fact that this is a final plat approval -- and the reasoning for denying a final plat is that we don't meet the technical requirements. In other words, the City is obligated to approve a plat if we meet the technical requirements. I think this is a good project, and we're very proud of the project and the way we've worked with the neighborhood, notwithstanding the fact that we may have different people today than were there before. So I would ask that that we would -- urge you to approve this final plat. Commissioner Sarnoff Well, Ms. -- Madam City Attorney? Chair Sanchez: All right. Commissioner. Commissioner Sarnoff I'm sorry, Mr. Chair. Chair Sanchez: No. You want to --? Is there anyone from the public you want -- you want to hear the public first on this or --? Commissioner Sarnoff That's fine. Chair Sanchez: Is there anyone from the public wishing to address this item, please step forward and be recognized. All right, Elvis. Those who will be speaking on this item, please step forward; state your name and address for the record. Elvis Cruz: Elvis Cruz, 631 Northeast 57th Street. Commissioners, I'm going to open with a brief quote from the book Suburban Nation, which was coauthored by Elizabeth Plater-Zyberk, your consultant on Miami 21. I don't always agree with everything in the book, but on these three sentences only I'm going to readl do agree, and here they are. FAR (floor area ratio) represents an additional problem in that in combination with a standardized setback requirement, it privileges large lot development. Two 5, 000-square foot lots are inferior to a single 10, 000-square foot lot in terms of their resulting FAR capacity, which discourages the involvement of small-scale developers downtown. Here's the punch line. This scenario leads cities to become dependent upon a few large speculative developers rather than on a diversity of local property owners, and therein lies the problem with this plat. This platting is a classic example of the problem of allowing unlimited lot assemblage. There are 16 different lots and a public street that have been assembled here. There is nothing this size anywhere near this property; certainly nothing this size in Shorecrest. By the rules of due process, the fact that you will be voting on this today means you have the ability to vote it up or down; otherwise, there would be no reason to vote. Commissioners, earlier today you did a splendid thing. You did the right thing in Coconut Grove by helping preserve that neighborhood and its character. I urge you to do the right thing to help protect and preserve Shorecrest and its character. I urge you to vote down this oversized plat and take back Northeast Bayshore Court for the people ofMiami. The two individuals seated here are the president and vice president of Shorecrest. You heard Ms. Dougherty speak at length about neighborhood approval. They won't mention that the neighborhood approval was done, to put it diplomatically, under the radar. Thank you. Chair Sanchez: All right. Speakers, please. Two minutes. State your name and address for the record. John Longchamps: Okay. It's John Longchamps or John Longchamps. And, again, Florida Statutes Chapter 119, a former building inspector, I don't want to -- I don't wish to make my address public. Chair Sanchez: Okay, but let's make sure we get your name. Did we get his name? Mr. Longchamps: Yes. John Longchamps. City ofMiami Page 21 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Okay. Mr. Longchamps: Yeah. Chair Sanchez: All right, you could proceed. Mr. Longchamps: Okay. First of all, I want to rebut one part of her opening about an extension that was requested in December. It wasn't an extension requested. It was to rescind a letter of credit. I think Mr. Sarnoff, himself, denied to rescind the plat. Chair Sanchez: It was to resent [sic] the plat, not a -- Mr. Longchamps: Okay. Chair Sanchez: -- we don't deal with letter of credits. Mr. Longchamps: Okay, to rescind the plat. Chair Sanchez: Okay. Mr. Longchamps: At the end of the discussion, they brought up that they wanted to extend it, and Mr. Sarnoff told her -- the young lady that he would not hear it, so that's first off. Okay, I'm here to request one of two actions from this body; either deny this or -- Chair Sanchez: But this is not an extension. This is a brand-new plot [sic], so -- Mr. Longchamps: But she mentioned that she was here in December to extend it -- Chair Sanchez: Okay. Mr. Longchamps: -- and that wasn't true. Okay. I don't have the historical data regarding what happened previously, but I know about right now. I'm here to request one of two actions from this body; either deny this item or defer it for a later date. As a cyclist, I would like you to deny this plat. Bicycling two andfrom the city ofMiami Beach into the City ofMiami, there are only two legal and direct routes. It's either Venetian Causeway or 79th Street Causeway. And if you look here off of this map, if you come off the bridge, the only other way to get into the City of Miami is to make a right turn onto 82nd Street, and that's a dangerous curve. The block that they are looking to take is the only block, and I've been taking that route since 1987 before living into this -- before moving into this city, so I wouldn't think this body would suggest that the option would be for the cyclists to run their -- the risk of driving into that busy and treacherous curve that they're trying to drive us into. Second of all, upon noticing this item on the agenda, I was first surprised and disturbed; surprised that this project has missed its final plat deadline. Then the final plat was rescinded on December13 by this body. Now upon studying this process, I was unable to connect the precedence logic. I know the developer had to come up with a master plan or design development come and present it here and you have the initial plat. After that they come and do the final plat. Chair Sanchez: Right. Mr. Longchamps: But in between that, that's when you gave the vacation of the road. They missed their final plat, so why aren't we going back to square one? So I'm missing the connection. Chair Sanchez: All right. City ofMiami Page 22 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Longchamps: So maybe -- Chair Sanchez: Maybe somebody could answer that question. Mr. Longchamps: -- somebody can -- Chair Sanchez: All right. Mr. Longchamps: -- answer it. Chair Sanchez: Maybe -- you know what? We'll get it answered right now. Can we address that issue? Ms. Grindell: The closure is -- was approved in January of -- 28 of 2007, and it's actually good for a four-year period, so it was not -- they were not required to go back to vacate the street again. Chair Sanchez: Okay. Thank you. Next speaker. Mr. Longchamps: So again -- Chair Sanchez: I'm being very gracious to you today. Mr. Longchamps: -- I just -- I'm just asking that you either deny it or defer it. Chair Sanchez: All right. Mr. Longchamps: That's all. Chair Sanchez: Just for the record, the speaker who spoke is the same speaker. Ma'am. Mylene Santana: Hi. My name is Mylene Santana, andl reside at 662 Northeast 82nd Terrace. I'm here today not only as part of the new board of Shorecrest as well as representing myself as a resident, and my disappointment in the way that the whole project got approved and as Mr. Cruz said, was underlined approved and a lot of the homeowners and the association members really had no clue of some of the ongoings of project approvals that surrounded the community. With that being said, I've studied a lot of the information in our short period of time being the interim board, and a lot of this information, I'm disappointed. I also feel that 82nd Street is a very dangerous speedway. It no longer has become a residential roadway. It is a dangerous speedway. The impact that a project like this can have with the street closures and having to defer traffic, I do not believe will make this a better community. On top of us having to deal with the maybe 300-plus cars that are going to hit not only 79th Street, but are going to shoot through 81st Street and 82nd Street is only going to make the neighborhood, to me, decline in its value; and it's really in its formative residential neighborhood. These are primarily within the center core of Shorecrest, all single-family homes. We have two schools. We just recently got speed bumps in order to slow down the traffic that snakes through that neighborhood. So, again, with all the plat issues that -- and extensions and so on that we've had with the project -- andl appreciate that they want to give us a park, that's great, but how do we get to that park? Is someone going to helicopter me there, because I don't see where I'm going to be able to cross the street safely to get to that park? So where am I, as a Shorecrest resident, going to benefit from this public park? I don't see the benefit. Andl appreciate the fact, as well, that they've redesigned their program because, really, the height restriction is a big issue for a lot of the residents that are -- Chair Sanchez: Thank you. City ofMiami Page 23 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Santana: -- surrounded there. We're -- you know, we're going to live without sun in those surrounding homes. My request from the Commission, and you, Mr. Chairperson, is that we deny the project. Chair Sanchez: The plat. Ms. Santana: The plat. Chair Sanchez: Okay. Ms. Santana: The project can move somewhere else. Chair Sanchez: The project is not in front of us yet. Ms. Santana: Exactly. Chair Sanchez: All right. Ms. Santana: But as a homeowner, as a resident, as a representing board member, today my request is that this Commission denies that. Chair Sanchez: Thank you so much. Ms. Dougherty: May I ask --? Chair Sanchez: Anyone else wishing to address this issue? Ms. Dougherty: I just have one question. Ms. Santana: Sure. Ms. Dougherty: Are you taking this --? Are you representing that the board took action and made this request of you? Ms. Santana: I -- Chair Sanchez: No, no, no, no, no, no. Priscilla A. Thompson (City Clerk): Chair? Chair Sanchez: Wait, wait, wait, wait. Whoa. We can't have this type of meeting. You need to go back -- I mean -- Ms. Santana: I can -- Chair Sanchez: -- you need to come up to the -- Ms. Santana: -- say -- Chair Sanchez: -- mike. Ms. Santana: -- one thing. In my absence of being an active board member was a resident, but was an inactive board member for family and personal issues. City ofMiami Page 24 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Dougherty: No. I'm asking did the board take a official vote asking you to come and oppose this plat? Ms. Santana: We are here representing our current and existing membership. Ms. Dougherty: Did they take a vote? That's my question. Ms. Santana: We have not taken a vote. We are here representing ourselves -- Chair Sanchez: So there is no -- Ms. Santana: -- in defense of our community. Chair Sanchez: -- resolution in support or in -- or against, right? Ms. Santana: Our board members in our meetings have definitely, you know, I'm going to say pushed their feelings about not accepting this project. Chair Sanchez: Okay. Ms. Santana: Period. Have we taken a -- Chair Sanchez: You've made -- Ms. Santana: -- physical official vote? No, we've not. Chair Sanchez: -- your point. All right, before we continue, anyone else from the public wishing to address this item? Unidentified Speaker: Yeah. Chair Sanchez: Step forward. I don't want to deny anybody due process. Grace Solares: Great. Grace Solares, 60 Southwest 30th Road. I'm here to support Shorecrest and their opposition to this project. Chair Sanchez: Thank you. Ms. Solares: Thank you. Chair Sanchez: All right. The public hearing is closed at this time, and it comes back to the Commission. Before any questions, any of you want to put something on the record? Ms. Grindell: Yes. I just want to remind the Commission -- Chair Sanchez: State your name. Ms. Grindell: Oh, Stephanie Grindell, director of Public Works. I just want to remind the Commission that the item that's before you has to do with the subdivision of land and not the intended use of the land. Chair Sanchez: Exactly. All right, so the item that's in front of us is the plat, not the project. The project will probably come in front of this Commission later on, and we will have -- the residents will have an opportunity to come and express their concerns on the project -- City ofMiami Page 25 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff No. Chair Sanchez: -- if this passes. Commissioner Sarnoff This -- let me just try to set the record pretty -- as clearly as I can. And I'd like to thank the City for not claming it for me. First place, on February 23, 2006 this Major Use Special Permit and all the zoning requirements were completed. Am I correct? Ms. Grindell: That -- Maria J. Chiaro (Assistant City Attorney): That's correct. I didn't understand you to have asked me a question; I would have clarified that for you. Commissioner Sarnoff Weren't you reading my mind? Ms. Chiaro: I do have all the -- Commissioner Sarnoff I thought we had this intuition going. Ms. Chiaro: I'm sorry. I do have -- Commissioner Sarnoff That's all right. Ms. Chiaro: -- copies of all the legislation, all the approvals, but I presume you have them also. Commissioner Sarnoff The street closure is already done, am I correct? Ms. Grindell: Correct. Ms. Chiaro: That is correct. Commissioner Sarnoff The City, in its wistful wisdom, has already determined to give -- vacate this street; am I correct? Ms. Chiaro: Yes, that is correct. Commissioner Sarnoff That decision started back in 2006. Ms. Chiaro: That's correct. Commissioner Sarnoff That was a decision that was -- that's already done, correct? Ms. Chiaro: That's correct. Commissioner Sarnoff And there's nothing we could do to undo that, is that correct? Ms. Chiaro: No. The time has long passed for any -- Commissioner Sarnoff All right. Chair Sanchez: February 23. Ms. Chiaro: -- reconsideration. Commissioner Sarnoff Right, February 23 -- City ofMiami Page 26 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: 206 [sic]. Commissioner Sarnoff -- 2006. So would -- the only thing we're here to do today, as it was described to me in my briefings, is to see that Stephanie Grindell, her department, and other City personnel have dotted their is and crossed their is and have found that the plat is correct? Ms. Chiaro: That's correct. And pursuant to your request during the briefings, I did the legal research and have found the case law to support the position that the only thing that this Commission may do today is to determine whether the technical requirements of the plat have been met, and if the technical requirements have been met and this plat was not placed on your agenda before those technical requirements had been met, then you do not have the discretion to deny it. This is a ministerial act on the part of the City Commission. Commissioner Sarnoff So ifI were to vote in opposition to this plat -- replat, I guess, is the right word -- I would then be exercising my discretion arbitrarily and capriciously? Ms. Chiaro: Well, that is correct. And if you refuse to do so, you would be violating the guaranteed due process of the land owner pursuant to the cases. That's what I'm reading from the case law and the research that has been done. Commissioner Sarnoff And in doing so, I would subject myself and to the City to being sued? Ms. Chiaro: That is correct. Chair Sanchez: Crystal clear. Commissioner Sarnoff And, Shorecrest, you still want me to deny this, is that right? Mr. Longchamps: Would like all -- Ms. Santana: Yes. Mr. Longchamps: -- of you to deny it. Commissioner Sarnoff And you guys will be defendants, as well, correct? Ms. Thompson: Chair, I'm sorry. I can't record -- Chair Sanchez: Listen -- Ms. Thompson: -- responses off the mike. Chair Sanchez: Let me kindly ask that if you're going to say something -- Commissioner Sarnoff Well, I -- Chair Sanchez: -- for the sake of having a record -- not you, Commissioner -- you can't speak sitting down from a seat. You would have to get up and speak from the podium so we can have good records, proper records. In case future litigation arises, we do have the proper documents to proceed. Commissioner Sarnoff Now, my question to Shorecrest -- it could be to the president or the vice president -- despite hearing that anything we do here -- let me just get for the record clearly. Madam City Attorney, have you reviewed the plat? City ofMiami Page 27 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Chiaro: Yes, I have. Commissioner Sarnoff Has everything been executed appropriately? Have the is been dotted? Have the is been crossed? Ms. Chiaro: Yes. This plat, all the lower approvals -- lower meaning the departments that are required under the City Code, the County Code, and State law have been met. Commissioner Sarnoff All right. So now my question to Shorecrest is now having heard the legal standard, you still -- you're still asking your Commissioner to exercise his discretion and to do an arbitrary and capricious act? Mr. Longchamps: I'm asking our Commissioners to defer this. Commissioner Sarnoff Why? What am I deferring it to? For what? Mr. Longchamps: I think, right now, we're not prepared to ask that -- to answer that question, because you're asking right now is -- whether the City's going to get sued and whether we're going to get sued, so I prefer you defer it. You have your attorneys present; I would like to confer with our attorney. Chair Sanchez: It's up to you. Commissioner Sarnoff I'll change my motion, and I'll make it a motion to defer. Vice Chair Spence -Jones: Second. Chair Sanchez: All right. The maker of the motion, with a second for the purpose of discussion, has withdrawn the motion that's on the table. He's proffering a new motion that is on PH.1, which is a resolution, and the motion is to defer. The motion was seconded by the Vice Chair. It is under discussion. Hearing no discussion, all in favor, say "aye." Commissioner Sarnoff Aye. Chair Sanchez: Anyone in opposition -- Commissioner Gonzalez: I'd like -- Chair Sanchez: -- having the same right, say "nay." Commissioner Gonzalez: Before voting, I would like to ask a question. Are there any legal implications on deferring this item? Ms. Chiaro: If you defer to a time certain for -- Commissioner Sarnoff Let's defer it to the next available Commission. Ms. Chiaro: -- a limited -- Commissioner Sarnoff I guess that would be a continuance. Ms. Chiaro: -- period of time, there is some exposure as to whether the property owner is damaged. Your exposure is as representative of the City ofMiami and there -- under the case law, there may be some individual exposure, but again, damages need to be proved; and this is City ofMiami Page 28 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 one -month deferral. Commissioner Gonzalez: All right, so you're telling me that there could be some possible individual -- Ms. Chiaro: Yes, having -- Commissioner Gonzalez: -- liability, right? Ms. Chiaro: -- offered you the advice that I -- Commissioner Gonzalez: And was put in this same position two years ago and we -- some of us -- andl remember, the only one that voted no was Commissioner Allen because he was an attorney and he knew what he was doing, but the rest of us were sued; and I'm not going to put myself in that position once again, so my vote is no. Chair Sanchez: All right. Are you still proceeding with your motion to defer the item? Commissioner Sarnoff You know, interestingly enough, I'm the only person on this dais that's been sued by The Related Group, and I've been sued in my capacity as a Commissioner, and I've been sued in my capacity as an individual; and it's very different to get sued in your capacity as an individual because you'll find all your assets -- while they don't get frozen, nobody will do business with you. Commissioner Gonzalez: Right. Commissioner Sarnoff So I appreciate andl wouldn't recommend any of you -- andl know sometimes you look to me for legal advice -- to expose yourself to any legal liability on a billion -dollar corporation. Commissioner Gonzalez: No. Commissioner Sarnoff I'll maintain my motion; I think you should revote it. Chair Sanchez: Revote it? Commissioner Sarnoff Well, I -- you didn't get -- Commissioner Gonzalez: Do roll call. Commissioner Sarnoff -- the benefit of the City Attorneys, you know, opinion. Ms. Chiaro: The vote was stopped -- Commissioner Sarnoff Okay. Ms. Chiaro: -- for the question. Chair Sanchez: Yeah, so you want to proceed with your -- with the vote to defer? Commissioner Sarnoff I'll proceed -- well, I'm used to being sued, so I, you know -- Chair Sanchez: All right. Ms. Dougherty: May I just make one comment? On this property, we have carrying costs. Just City ofMiami Page 29 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 to carry the property one month for -- just for no reason -- well, I'll let you vote. Vice Chair Spence -Jones: I just want to ask one question. Mr. Chairman, do you mind? Chair Sanchez: No. Go ahead. Vice Chair Spence -Jones: Okay. I just want to be clear -- Chair Sanchez: This is getting interesting. Vice Chair Spence -Jones: I just wanted to be clear from the City Attorney standpoint, the issue of liability. Liability will fall not only on the City Commission, but -- Commissioner Gonzalez: But individuals. Vice Chair Spence -Jones: -- us as individuals? Commissioner Gonzalez: Yes. Ms. Grindell: Both. Ms. Chiaro: Yes. Vice Chair Spence -Jones: Both? Oh, I'm sorry. Ms. Chiaro: Yes. Ms. Grindell: Sorry. Ms. Chiaro: Thank you. I can use all the help I can get. Vice Chair Spence -Jones: Well, those know -- Ms. Chiaro: Yes. Vice Chair Spence -Jones: -- for those that know me know that I can't afford to have anything else falling on me for no liability, so I'm going to have to withdraw my -- Chair Sanchez: My second. Vice Chair Spence -Jones: -- can I withdraw my second? Chair Sanchez: You made the second. Vice Chair Spence -Jones: Yeah. I can't -- Chair Sanchez: All right. There is no second, so therefore, the motion that was on the table for deferral dies. All right. Is there a motion to approve the item? Commissioner Gonzalez: If there is no motion to deny, I'll make the motion to approve. Chair Sanchez: All right, there's a motion -- Commissioner Gonzalez: Because we have -- City ofMiami Page 30 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- to approve. Commissioner Gonzalez: -- to take some action. I mean, we can't remain silent here all day. Chair Sanchez: Look, let's make it very clear. The District Commissioner is in a very tough situation trying to please the constituents. This is a tough situation to put any Commissioner up here. As it was stated on the record, it's a legal determination. The only authority that we have here -- and we've done it in the past -- was to deny an extension. We could deny the extension. Unless there's an unusual circumstance, we would grant an extension. But we could deny the extensions once the developers have not done what they're supposed to do, but when it comes to a plat where our Legal Department says that everything has been met, with all due respect, I am not going to put myself in a situation where I'm going to be sued. Neither would you, if you were up here, to be honest with you. So that's the problem that we have. If you defer this item for a month, we are exposing ourselves, and we cannot allow to do that; so based on that -- I mean, it's just -- it's hard for me to sit up here and tell you let's defer for another month. I don't think you're going to solve anything on another month. It is a plat where all the requirements have been met, the technical requirements have been met, and we need to approve it. You may have lost a battle, but you have not lost a war because the project has to come back in front of this Commission and you could vote on it. That's all have to say. So it's time to fish or cut bait, as J. L. used to say. Pedro G. Hernandez (City Manager): You need to put that on the record. Ms. Chiaro: Mr. Chairman. Chair Sanchez: Yes. Ms. Chiaro: I don't think that there are any further approvals to come back on this project to the City Commission. Chair Sanchez: We don't approve the final project? Ms. Chiaro: There have been, I think, seven separate actions related to approvals for this project. The zonings -- the rezonings, the MUSP (Major Use Special Permit), for the comp plan Chair Sanchez: I was under -- Ms. Chiaro: -- the vacations -- Chair Sanchez: -- the impression that we had -- Ms. Dougherty: No. This is a timeline. There are nine separate public hearings for the -- Chair Sanchez: I stand corrected. You're absolutely right. Okay. Ms. Dougherty: -- and five in the City Commission. Chair Sanchez: Yeah. So I would second the motion that was made by Commissioner Gonzalez. There is no further discussion. Public hearing is closed -- Commissioner Gonzalez: Andl -- Chair Sanchez: -- but I'm not the Chair right now. City ofMiami Page 31 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Gonzalez: -- want to apologize, Commissioner Sarnoff, but you know -- Commissioner Sarnoff I understand. Commissioner Gonzalez: You understand that. I mean -- Commissioner Sarnoff I do. Commissioner Gonzalez: -- you know, I put myself in that position once, and I'm not going to do the same thing once again -- Chair Sanchez: We all did. Commissioner Gonzalez: -- you know. Pardon me? Chair Sanchez: We all did. Commissioner Sarnoff I -- Commissioner Gonzalez: We all did. Commissioner Sarnoff -- I'm a little bit disappointed in Shorecrest because they would just as soon watch their Commissioner get sued -- Commissioner Gonzalez: Well -- Commissioner Sarnoff -- and that's disappointing. Commissioner Gonzalez: -- you know, to them, they don't care. They're not being sued themselves, you know. Commissioner Sarnoff Right. Commissioner Gonzalez: Maybe they don't have anything to lose and that's why they don't care. If you don't have anything to lose, you can sue me. I don't have anything to lose, well, you know Commissioner Sarnoff Fair enough. Chair Sanchez: Look, I would -- Vice Chair Spence -Jones: Sir -- Commissioner Gonzalez: -- get yourself in my league. Vice Chair Spence -Jones: -- and Mr. Chairman -- and l just want to say to Shorecrest, you know, willing to support it, but I'm sure you understand that cannot afford to have not one more issue that I need to pay for a lawsuit on. Just -- Chair Sanchez: With all due respect, I call the question. It's a resolution. Let's vote on it. Roll call. Ms. Thompson: Roll call. Commissioner Regalado? Commissioner Regalado: Yes. City ofMiami Page 32 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Thompson: Vice Chair Spence -Jones? Vice Chair Spence -Jones: Yes. Ms. Thompson: Commissioner Sarnoff? Commissioner Sarnoff No. Ms. Thompson: Commissioner Gonzalez? Commissioner Gonzalez: Yes. Ms. Thompson: Chair Sanchez? I'm sorry? Chair Sanchez: Yes. Ms. Thompson: Then the -- Ms. Dougherty: Thank you very much. Ms. Thompson: -- resolution has been adopted, 4/1. Chair Sanchez: All right. PH.2 07-01545 RESOLUTION Department of A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH Public Works ATTACHMENT(S), ACCEPTING THE PLAT ENTITLED "UNIVERSITY OF MIAMI PAC CRB SITE," A REPLAT IN THE CITY OF MIAMI OF THE PROPERTY DESCRIBED IN "ATTACHMENT 1," SUBJECT TO SATISFACTION OF ALL CONDITIONS REQUIRED BY THE PLAT AND STREET COMMITTEE AS SET FORTH IN "EXHIBIT A," ATTACHED AND INCORPORATED, AND THE PROVISIONS CONTAINED IN SECTION 55-8 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, AND ACCEPTING THE DEDICATIONS SHOWN ON THE PLAT; AUTHORIZING AND DIRECTING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE PLAT; AND PROVIDING FOR THE RECORDATION OF THE PLAT IN THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. 07-01545 Legislation.pdf 07-01545 Exhibit.pdf 07-01545 Exhibit2.pdf 07-01545 Exhibit3.pdf 07-01545 Exhibit4.pdf 07-01545 Summary Form.pdf 07-01545 Memo.pdf 07-01545 Notice of Public Hearing.pdf 07-01545 Memo2.pdf Motion by Commissioner Gonzalez, seconded by Commissioner Regalado, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Regalado Absent: 1 - Commissioner Spence -Jones City ofMiami Page 33 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 R-08-0049 Chair Sanchez: Okay. Let's take on PH.2. It's a resolution. That shouldn't be any controversial at all. Stephanie Grindell (Director, Public Works): Let's hope. Chair Sanchez: PH.2. Ms. Grindell: PH.2 -- Commissioner Gonzalez: I'll move -- Ms. Grindell: -- is a resolution accepting the plat of University ofMiami PAC (Professional Arts Center) R -- CRB (Clinical Research Building) site. Commissioner Gonzalez: I'll move PH.2. Chair Sanchez: All right. There's a motion for PH.2. As always, I always request that the Department head put something on the record, as people that are home watching our TV (Television) needs to know what we're voting on. And at times when you don't do that, it seems we're just voting on something that they're not aware of. So there is a motion by Commissioner Gonzalez. Is there a second? Was there a second -- Commissioner Regalado: Second. Chair Sanchez: -- Madam Clerk? Second by Commissioner Regalado. We are on item PH.2. It's a resolution. It is a public hearing. Anyone from the public wishing to address this item, please step forward and be recognized. Seeing none, hearing none, the public hearing is closed; coming back to the Commission. Any further discussion on PH.2? If not, all in favor, say "aye." The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay." Motion carries. City ofMiami Page 34 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 FR.1 07-01175 District 2- Commissioner Marc David Sarnoff ORDINANCES - FIRST READING ORDINANCE First Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 54 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED "STREET AND SIDEWALKS," BY AMENDING SECTION 54-1, TO ADD NEW DEFINITIONS; AMENDING SECTIONS 54-8 AND 54-9 TO PROHIBIT PLACEMENT OF SIGNS IN THE PUBLIC RIGHT-OF-WAY; ESTABLISH CRITERIA FOR REBUTTABLE PRESUMPTIONS CONCERNING PLACEMENT OF SIGNS ON THE PUBLIC RIGHT-OF-WAY; CREATING NEW SECTIONS 54-9.1 THROUGH 54-9.3, TO PROVIDE FOR SEIZURE OF SIGNS FOR USE AS EVIDENCE AT PROSECUTION; PROVIDE FOR ENFORCEMENT AND PROVIDE FOR CIVIL FINES AND PENALTIES FOR VIOLATIONS; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE. 07-01175 Legislation SR.pdf 07-01175 Legislation FR.pdf 07-01175-Submittal-Reference by Lucia Dougherty FR.pdf 07-01175-Submittal-Incident Reports FR.pdf Motion by Commissioner Sarnoff, seconded by Commissioner Gonzalez, that this matter be PASSED ON FIRST READING WITH MODIFICATIONS PASSED by the following vote. Votes: Ayes: 4 - Commissioner Sarnoff, Sanchez, Regalado and Spence -Jones Absent: 1 - Commissioner Gonzalez Chair Sanchez: We move to ordinance FR.1. FR.1 is an ordinance on first reading, and that is prohibiting placements of signs in the public right-of-way. All right. Somebody come up and speak on the item. Stephanie Grindell: Stephanie Grindell, director of Public Works. FR.1 is an amendment to the Code regarding signage, and that's about all can say 'cause it's not my item. Commissioner Sarnoff Let me -- I'm -- I apologize, Stephanie. Sometimes it's just fun to watch, and this is not Stephanie's ordinance. Ms. Grindell: I'll pay you back. Commissioner Sarnoff I proposed this. The history behind this I was proposing a handbill ordinance. Commissioner Gonzalez, who was then Chair Gonzalez, asked that a sign ordinance equally be developed. I think you all know -- and if you don't mind I'll discuss both handbill and signs together -- our city is littered -- this is for the handbill -- with these all throughout the city every day, day in, day out; and we just don't simply either have the resource or the will to pick them up, nor maybe should we have to because they seem to be placed, I know, in Coconut Grove all over the place, I know in Edgewater, Biscayne Boulevard all over the place. Commissioner Gonzalez rightfully said at the same time you're looking at these handbills, would you look at signs? And to the credit of the City Attorney and his department, they did. This is -- Chair Sanchez: Commissioner, let me interrupt you for a -- Commissioner Sarnoff Sure. City ofMiami Page 35 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Are you combining both? Commissioner Sarnoff If you don't -- Is it all right to or --? Chair Sanchez: It's fine for discussion -- Commissioner Sarnoff Well -- no. I'll talk about signs. Chair Sanchez: -- but we got to vote on the (UNINTELLIGIBLE) -- Commissioner Sarnoff We'll talk -- this -- I'm just telling you, historically, how it came about -- Chair Sanchez: All right. Commissioner Sarnoff -- and I'll stick with signs. Chair Sanchez: But we'll vote on it -- Commissioner Sarnoff FR.1 is signs; FR.2 is handbills. Chair Sanchez: Okay. Commissioner Sarnoff So FR.1, what the City Attorney did was he looked closely -- not exactly, but closely at the City ofMiami Beach's sign ordinance. This is predominantly their sign ordinance. The good news is it has some tests. Meaning, it's been tested once or twice. This should help us keep some signs, banners off of our public right-of-ways [sic]; will even help us on private property. This is a first reading. I think the State -- the City Attorney's Office has been very cooperative. If anybody has any specific questions, I would recommend you speak to the City Attorney since they drafted it. I spent a little more time with the handbill ordinance. It's just a way of improving our quality of life, of keeping this city cleaner. We are reactive. We react to people putting signs up and then who -- guess who takes them down? NET (Neighborhood Enhancement Team), Sanitation, citizens; you get the phone calls. It's a way of regulating this. Not doing away it, but regulating it. Commissioner Gonzalez: Mr. Chairman. Chair Sanchez: All right. Vice Chair Spence -Jones: Mr. Chair -- Chair Sanchez: Commissioner -- Vice Chair Spence -Jones, Commissioner Gonzalez, Commissioner Regalado, and then we'll proceed Julie O. Bru (Deputy City Attorney): Okay. And, Mr. Chairman, just to clam something, the ordinance that's before you has included in it a section, 54-18, which would have provided a regulatory scheme, a permitting scheme for banners. We were discussing it with the Manager today, and he'd rather bring that back as a separate ordinance, a separate section. Pedro G. Hernandez (City Manager): But I don't think that that, Mr. Chairman, Commissioners, was the original intent of the sign ordinance. I believe that staff and the Attorney's office working on it added that to it. I think that that's a portion that we should look at independently and bring it back on its own, so it's a totally new section, 54-18, that I recommend that it be taken out ofFR.1. Ms. Bru: Correct. City ofMiami Page 36 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Gonzalez: But I believe that we should pursue the issue of signage, and the reason is very simple, you know. Anyone out there buys a piece of plywood and they just take a brush and paint, and they paint the sign, and they put it right on the right-of-way. And let me tell you, part of this city look like a third -world country, okay, and sometimes even worse. And there is the criteria by these merchants that if they have 20 signs, they're going to sell more than if they have one, you know, a decent one and a clean one and a professional one. And there has to be -- we have to start working on regulating those signs; you know, allow people to have business to have their signs, but have -- you know, under the facade program, we even -- the City even assists businesses on having their signs built professionally with permits, you know, on their design by a professional, you know. Once again, there are certain areas that you can't even see the stores because there are 20 pieces of plywood, you know, and two-by-fours right on the right-of-way. That doesn't help sell more. That doesn't help promote the business more. I think that if you have an adequate size, clean, professional sign helps you more than having, you know, all of those billboards all over the place. That was my concern. Commissioner Sarnoff No. And, Commissioner Gonzalez, just so you know, this will address what you would call a sandwich board on the right-of-way -- Commissioner Gonzalez: That's another issue. Commissioner Sarnoff -- or public right-of-way. This will not address -- and maybe we need to address -- because I think I'm hearing you find an issue with signs that people put up on their storefronts. Maybe we -- Chair Sanchez: There's already an ordinance on that. Commissioner Sarnoff Excuse -- there -- right, there is an ordinance on that, and if you think that needs to be changed, a good time maybe to discuss that is when we get to murals because we're really talking about signage, advertising all throughout the city. But this won't address what's up on the wall, but it will address what's in the street. Commissioner Gonzalez: And don't have anything against advertising, and don't have anything against promoting a business, or promoting merchandise that you sell. What I have a problem with is with the type of signs and not being professional signs, not being sign installed with a permit, you know, regulated the people are putting up signs all over the place. Like I say, you know, a guy can go to the hardware store, buy a piece of plywood and two two-by-fours, and just make my own sign and put it up. Chair Sanchez: All right, Vice Chair. Vice Chair Spence -Jones: Thank you, Mr. Chairman. My only issue -- this is something that we've been working on -- I know I've been working on since I've been here for the last two years, andl'm glad to see that it's finally moving with the City Attorney's office; andl'm glad to see that the City Commission is definitely moving in that direction to get this ordinance passed. My concern, really, is not about the signs on businesses. I'm sure that's something that needs to also be addressed. It's the issue of these signs being placed in medians and for these parties, these concerts, these -- you know, "We Buy Houses." Every time you turn around -- when NET -- you send NET out and Code Enforcement has been doing a great job to, at least, help us remove some of them. It's just how we go about addressing the individuals that decide to place these signs up in neighborhoods, so I'm hoping that this particular ordinance will begin to address identfing those individuals. I think one of the biggest bumps we had in the road regarding this issue of posting these illegal signs was many of these companies, especially in the "We Buy Houses" -- using that as an example, the foreclosure -type signage -- many of these companies were based outside of Dade County, so I was told at that particular time by the Law Department City ofMiami Page 37 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 and by Code Enforcement that because they were not, basically, within Dade County or the City ofMiami, it was very hard to enforce anything upon them. So I'm assuming that this ordinance will now address that, correct? Ms. Bru: This ordinance is now proposing an enforcement scheme that would authorize a lien to be placed on property owned by the violator both in this city and also outside of the jurisdiction. Chair Sanchez: Outside of -- Ms. Bru: That -- Chair Sanchez: -- the jurisdiction? Vice Chair Spence -Jones: I know. Ms. Bru: Correct. Any real property or personal property owned by the violator; it doesn't matter where. This is what is being proposed here. Plus, it would also be a judgment that can be recorded in court, and we can attempt to collect on that judgment as you do with any other debt. Vice Chair Spence -Jones: I just have to ask the City -- 'cause what -- andl'm asking this question because, literally, that was probably like the first item or second item that I addressed when I got on this board, and it was always communicated to me that we could not -- one of the issues for us not addressing the whole signage problem was because we could not do anything beyond the City ofMiami. So I'm assuming that the City Attorney is now changing their position on that. We've seen that other cities are doing that now, is that --? Ms. Bru: I don't think that it was -- Commissioner, I don't think it was ever really a legal issue. It was more logistic, the methodology that we have in place for liening property. I think the way that it's been computerized or automated really only focuses on property that is within the City jurisdiction, so it's just going to entail a little bit more work. Vice Chair Spence -Jones: So -- andl'm just asking 'cause, you know, little more work means more money we need to spend to make sure we can -- I'm -- I -- Ms. Bru: Yes, it does. It will be more of a resource intensive type of enforcement procedure. Vice Chair Spence -Jones: Just out of curiosity -- andl'm going to turn it over to the Chair -- do we have at least some sort of estimate, based upon other cities that have done the same things, what we're talking about from a cost perspective? Is there anal --? Ms. Bru: I think that question's probably better addressed by Code Enforcement. Vice Chair Spence -Jones: Because that was really my only issue, was that -- you know I've been talking about this, Mr. Manager, and Julie -- Ms. City Attorney, for a while and that was one of the biggest issues and concerns is, Commissioner, we can't do anything about it, so my -- Mr. Hernandez: Commissioner, in essence -- Vice Chair Spence -Jones: Yeah. Mr. Hernandez: -- I cannot tell you exactly now what the additional costs would be. However, without that ability or that tool, the ordinance in itself would not have much teeth. Vice Chair Spence -Jones: Right. I -- City ofMiami Page 38 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Hernandez: Because we deal -- Vice Chair Spence -Jones: -- andl -- Mr. Hernandez: -- in many cases, we deal with properties outside of the City. Vice Chair Spence -Jones: Yeah. Mr. Hernandez: And whatever it takes for this to be meaningful, we have to be able to have that tool. Vice Chair Spence -Jones: Right. And I'm not sayingl don't -- I support it. I'm going to support and vote on it today, but I do think it's important for us to at least make sure we consider that. Mariana [sic], the question -- I'm sorry -- the question was -- I know you know we've been working on this for almost a year and a half trying to figure out what we need to do to address all of the signs, andl appreciate your department going above and beyond the call of duty to pull these signs up as I call you. Mariano Loret de Mola (Director, Code Enforcement): Right. Vice Chair Spence -Jones: But the question was -- one of the issues we had was -- or the road -- bump in the road that had was it was always communicated to me, because many of these offenders were not located within the City or Miami -Dade County was very hard or difficult to enforce them -- enforce anything upon them. So my question was -- you know, I'm assuming that now we've decided, through this ordinance, that we can do that. And then my question for the Manager and the City Attorney was, was there an analysis or anything that was done to -- or is there another city that's done some -- that's doing something similar to what we're doing to get a sense of what that cost is to act -- would be or incurred on the City now that we are going to go beyond what we would normally do? Mr. Loret de Mola: Okay. Loret de Mola, Code Enforcement, City ofMiami. I don't have those figures about the cost of that. Vice Chair Spence -Jones: Okay. Mr. Loret de Mola: It has been a problem for us because what we have doing -- what we've been doing is to actually do the job and pull the things out of the public right-of-way. Vice Chair Spence -Jones: Right. Mr. Loret de Mola: I'm not the only one who has done that. Vice Chair Spence -Jones: Right. Mr. Loret de Mola: The Litter Busters from NET also has -- Vice Chair Spence -Jones: Right. Mr. Loret de Mola: -- helped on that, and they were -- we've been doing that one, because that's the fastest way to solve the problem, all right? Vice Chair Spence -Jones: Right. Mr. Loret de Mola: As you mention in this ordinance, it's hard to enforce it because of the City ofMiami Page 39 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 different factors involved, all right? But I don't have the -- Vice Chair Spence -Jones: Okay. Mr. Loret de Mola: -- numbers to tell you -- Vice Chair Spence -Jones: Is another city doing the same thing outside of the City of Mi -- now, is Mi -- City of Miami Beach doing that now? Mr. Hernandez: I believe that Miami Beach has a very similar ordinance in place. Mr. Loret de Mola: Yes. Mr. Hernandez: And what we can do, Commissioner, is before we bring this back for a second reading -- Vice Chair Spence -Jones: No problem. Mr. Hernandez: -- do the complete research -- Mr. Loret de Mola: Yes. Mr. Hernandez: -- and make it available to all Commissioners. Vice Chair Spence -Jones: I'm just glad to see it's getting done. That's all. Mr. Loret de Mola: Yeah. The City ofMiami Beach does have a similar type of ordinance. Vice Chair Spence -Jones: Okay. Thank you, Mariano. Ms. Bru: Let me say something, Commissioner and members of the Commission. This is a very innovative type of enforcement mechanism. Obviously, it starts off with you attempt to get at the person who is actually committing the violation. If you see somebody actually putting something illegally in the public right-of-way, you grab them; they get the fine. Hopefully, they pay it. The next step is now we have a -- this rebuttable presumption that will be used to try to get at the person who is benefiting from the advertising or the commercial product that's being promoted in the sign, and that person will be fined and/or the entity; and hopefully, they'll pay the fine. In the event that they don't pay the fine, we are proposing then to go further and lien their property. Whether or not that's something that, eventually, is going to prove out to be effective, that -- yet, it remains to be seen whether it's cost effective, whether it's something that can be, you know, pursued in a manner that is effective. Finally, we also can file that judgment in court and either engage a collection agency or some sort of aggressive collection method to collect the judgment as you do with anything else. So we have various ways to try to go after not only the person who's actually placing the sign in the public right-of-way, in the poles, in the streets, but also the person who is benefiting from it. Eventually and ultimately, it'll be a matter of proof A special master will have to have enough evidence that that benefactor caused an agent or a representative of him or her or of the entity to place that sign illegally, but at least this is a step in the right direction in an attempt to try to remediate a situation that is clearly, clearly blight on the environment. Chair Sanchez: Commissioner Regalado. Commissioner Regalado: Thank you very much, Mr. Chairman. I remember that about a year and a half ago, we discussed the bandit signs, and we realized that it wasn't too much; and Commissioner Spence -Jones also and Commissioner Gonzalez and everyone here, and it wasn't City ofMiami Page 40 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 much that we can do. But this is really good, although I have several questions. Number one, what is the public right-of-way? Ms. Grindell: I'm not sure I understand your question. Commissioner Regalado: What area, what territory you can call the public right-of-way? Ms. Grindell: Typically? Commissioner Regalado: Yes. Ms. Grindell: It's the streets -- Chair Sanchez: Streets. Ms. Grindell: -- the sidewalk, the curb, the swales. Chair Sanchez: Something that's not a property, privately owned. Ms. Grindell: Exactly. Commissioner Regalado: FPL (Florida Power & Light) light poles, too. Ms. Grindell: FPL light poles are generally within the public right-of-way, but are not owned by the City; they're private. Commissioner Regalado: Okay, so that's part of -- Commissioner Sarnoff Public right-of-way. Commissioner Regalado: -- the public right-of-way, so it's a private entity that could be -- we could also be proactive on the light poles, right? Ms. Grindell: That's correct. Commissioner Regalado: Okay. Number two, on county roads, state road, and federal road, the City will have responsibility and enforcement on all within the municipality; doesn't matter if it's a state road; doesn't matter that it's a federal or a county road, right? Chair Sanchez: City limits. Commissioner Sarnoff City limits, yeah. Commissioner Regalado: All the city limits. Ms. Grindell: For enforcement, yes. Commissioner Regalado: All the city limit. Okay, that's fine. Now, the other thing is a lot of these bandit signs only have a phone number. '7 sell houses. Call me at 786-whatever." So who's going to investigate to get to the company or the person or the free agent or the entity that is selling that house? Mr. Hernandez: That will be Code Enforcement, sir. Commissioner Regalado: Okay, that would be Code Enforcement. That's good. The other City ofMiami Page 41 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 question, what if the person doesn't have a property? Ms. Bru: It's a fine. There's a judgment. We can collect it, like you collect any judgment. Or if we proceed under the statute, under Chapter 162, it becomes a lien under any personal or private property of the violator. Commissioner Regalado: Okay. The reason I'm asking this is because now we have entered on one of the busiest election year in the United States. And the other day, during the debate at University ofMiami, on a Sunday, I was driving on Coral Way and every five feet on the middle of Coral Way, from 37th to 12th Avenue, there were signs of "Mitt Romney, president, "Mitt Romney for president." Now, who do we cite, Mitt Romney or Mitt Romney campaign? Ms. Bru: I think -- Commissioner, I think the State has a regulatory scheme in place that deals specifically with political signs, andl think you hold the campaign responsible for violations of - - and I'm not that familiar with the specifics of that. I know that it's regulated by state statute. There are penalties for violation of -- by political candidates, and you can hold the campaign responsible for violations of that. Commissioner Regalado: So in this political year, no political signs will be allowed within the city limits on the public right-of-way; they will have to go to a private to seek permission to place their sign? Ms. Bru: I believe that the regulatory scheme does prohibit political signs in the public right-of-way, and there's a statute on point. If you want to, in a few minutes, I can get you the specifics as to that. I didn't brief on the political signs, but I know it's regulated. Commissioner Regalado: I'm just saying because it's going to happen -- Ms. Bru: Right. Commissioner Regalado: -- you know, and -- Ms. Bru: Code Enforcement is familiar with that and -- Commissioner Gonzalez: It's happening. I saw a lot of those same signs today on 27th Avenue in the median -- Commissioner Regalado: Right. And -- Commissioner Gonzalez: -- as I was driving to City Hall. Commissioner Regalado: -- it's going to happen, and number one, are we going first to pick up the sign and retrieve the sign, get rid of the sign, and then cite the person? Or are we leaving the sign so it shows that that person or entity is in violation? Ms. Bru: Yes. Mr. Loret de Mola: Commissioner, on the public right-of-way, the inspectors have the -- we have the policy to pull them if they are in a public right-of-way, pull it out. Commissioner Regalado: Okay. And then the word of the inspector is this sign was here so I'm going to cite you, whoever. Mr. Loret de Mola: Okay. The citing, it could be -- if they have -- are registered with the City Clerk, we can go to the City Clerk and ask for address of the office and everything -- City ofMiami Page 42 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: No, no, no, no, no. Mr. Loret de Mola: -- and we have done that. Commissioner Regalado: What I'm saying, Mariano, is once your inspector removes the sign, he or she writes a ticket -- Mr. Loret de Mola: No, sir. Commissioner Regalado: -- but there is no evidence that the sign was there, you know. Commissioner Sarnoff Take a photograph of it. Commissioner Regalado: You can take a photograph. That's what I'm saying. You can take a photograph with the date, the -- Mr. Loret de Mola: That's correct, yes. Commissioner Regalado: -- address. Mr. Loret de Mola: Can be done. Commissioner Regalado: And the last question is the people that advertise garage sales. Mr. Loret de Mola: If you have a permit for the garage sale, they can do certain area around where the garage sale is taking place. Commissioner Regalado: What is around? Mr. Loret de Mola: I don't recall exactly how many feet away from where the garage sales is, but there's -- Commissioner Regalado: But -- Mr. Loret de Mola: -- an ordinance for that. Commissioner Regalado: Around -- Chair Sanchez: Around the block. Commissioner Regalado: -- the block, okay. But listen, if you drive -- people usually advertise garage sales -- Mr. Loret de Mola: That's correct. Commissioner Regalado: -- on main avenues and -- like 27th Avenue, and garage sale on 19th Street -- Mr. Loret de Mola: That's right. Commissioner Regalado: -- and 24, so some will be legal and some will not be legal. Mr. Loret de Mola: They have to have a permit. City ofMiami Page 43 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: Huh? Mr. Loret de Mola: The garage sale requires a permit. Commissioner Regalado: I know that, but there's space, so some will be legal and some will be illegal. Mr. Loret de Mola: That's correct. Commissioner Regalado: Okay. I'm -- Chair Sanchez: Commissioner Gonzalez. Commissioner Gonzalez: I was just -- in reference to political signs, I remember that my opponent in this last election started putting up illegal signs maybe seven months, eight month before the election, andl took pictures with the dates and send them to the City; and as far as I know, nothing was done about it, you know. And the problem is that we can have all the rules that we want in the book, we can have all the regulations that -- you know, we can be sitting in here an entire day making rules and regulations, but if we don't enforce them, you know, we're wasting our time. I'm sure that there were rules. I'm sure that there were laws that control that. This guy was placing signs on mailboxes, inside parks. Maceo Park, there were three or four signs in Maceo Park. There were signs on the light poles. There were signs in many -- in different places in public right-of-way. We took pictures of them. We remove them. As a matter of fact, I still have them with the pictures attached and everything, you know. We report him, and you know, all we do is just say don't do it anymore, and then the guy keeps doing it the next day, so -- Commissioner Sarnoff Well, you bring up a good point. We set policy up here. We have to have the right city manager to enforce that policy. Commissioner Gonzalez: Did you fine him? Did he pay the fine? Well, but that's the pro -- no, no. Come to the podium because that's very important. Okay. Mariano is telling me that they fine the guy -- Mr. Loret de Mola: We -- Commissioner Gonzalez: -- and when I ask him did -- Mr. Loret de Mola: -- receive a complaint -- Commissioner Gonzalez: -- he pay the fine, and he doesn't know if he paid the fine. Mr. Loret de Mola: We re -- Commissioner Gonzalez: We have to follow up to make sure that he pay the fine because if we send him a letter telling him that what he's doing is illegal and he continue doing it, and then you fine him and he doesn't pay the fine and nobody follow ups [sic] on him paying the fine, hey, guess what? Next election he's going to be doing it all over again because he didn't pay the consequences. Mr. Loret de Mola: We received a complaint; we wrote a notice of violation to the individual, and subsequently to that, he did the same thing; and we received another complaint, and we verifi, the complaint. We got the address from the City Clerk, and we sent a fine and a summon for him, okay? City ofMiami Page 44 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Gonzalez: All right. Thank you, Mariano. Chair Sanchez: Before Commissioner Sarnoff address this legislation, you know, I'm amazed that the City, being 111 years old, does not have an ordinance in place to address this issue. That's one. Second, I need to know if this ordinance on first reading -- and it's on first reading -- has it gone through all the proper channels? Has it gone through the Administration? Has it gone through Legal? And we feel that this legislation, if challenged in court, we could defend it. That's a question that I have for that. I think the question that needs to be answered here, based on what is a sign is what constitutes a sign? Garage sale? A little girl who loses her cat and posts a "l lost Fifi. If you find it, call my house." Will she be fined? So these are all the questions that we need to ask when we deal what constitutes a sign. The other issue I think that when you look at this ordinance, I think we're going after individuals who put signs in public right-of-ways [sic] promoting events; just not any sign, because we have plenty of ordinances already in place on improper signs in businesses, improper signs, but this is and should be promoting events. Here's the question I have -- and you see it all over the city -- you have a promoter from New York promoting whoever, who's from LA (Los Angeles), and the event is being held in Miami Beach. Now, you have to get whoever the promoter pays out on the street putting up those signs. Now, that's the individual that you could fine through Code Enforcement. Is the Police Department going to enforce this code? Can the police also make arrests when someone's putting up these signs? So there're a lot of unanswered ques -- it's a great legislation; we need it, no doubt. Drive throughout the City, and especially when there's a big event coming up that's either Bicentennial Park, or Bayfront Park, or somewhere in the City, they post them all over; but we need to have all these questions answered in order for us to move forward on this, and those questions have not been answered, at least not to me. And the other issue is, are we in any way -- well, I guess that's a question for the next item, not this item, so I'll just leave it at that. Ms. Dougherty: Mr. Chairman, couldl -- Chair Sanchez: There were a lot of questions. Ms. Dougherty: -- be heard? Ms. Bru: Well, Chair -- Mr. Chairman, there are a lot of questions. That's why this is first reading. It's a perfect forum to vet out all these policy decisions, to scrutinize what it is that we're attempting to do, and as a, you know, collective body, give us some feedback so that we can continue to work on this, fine tune it, deal with ambiguities so that we have something that, as you say, is defensible and it's a good ordinance to enforce because it's clear and everybody knows what it is that we are prohibiting or permitting. This, again, deals only with signs that have not already been authorized, because we do have signs in some of these facilities, such as bus benches and bus shelters. There are signs there that have been authorized, so in this ordinance, we're already saying, if it's been authorized, it's not something that we're prohibiting under this scheme here. This deals with all kinds of signs. It doesn't distinguish between commercial or noncommercial, political, religious, expressive, anything. This deals with all signs. And this is our attempt, as a proprietor or the entity that holds the public trust for the sidewalks, the streets, all these facilities are there, poles, to make sure that the private property is not destroyed, defaced, damaged by these illegal signs. That's number one. And most courts that have looked at these types of ordinance recognize that a local government has the authority to protect and regulate its property, and that's what we're doing here primarily. Number two, we're attempting to deal with the environmental issues that result from all this papers and all this garbage being thrown on the streets, because these signs can get washed down, and they fall, and they run into the sewers; they clog the sewers, and then, obviously, aesthetics, the visual blight that these signs create. So it is a legitimate purpose. It is a substantial interest that we have in promoting this kind of regulatory activity. It deals with all signs. We don't really exempt anything, other than those things that have already been authorized. City ofMiami Page 45 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: So there is no clear definition between a poster promoting an event or a cat lost? Ms. Bru: Not in this ordinance. When we deal with the handbill ordinance, we are dealing only with commercial handbills, so there's a distinction there. This one, it deals with all signs. Chair Sanchez: Including? Ms. Bru: Including "1 lost Fiji." Vice Chair Spence -Jones: Lost cat. Chair Sanchez: Or -- Vice Chair Spence -Jones: Lost dog. Chair Sanchez: -- garage sales? Ms. Bru: Oh. Now, garage sales are permitted. We have a scheme where if you're going to have a garage sale and you get a permit, you get a temporary sign permit; and you have the reasonable time, manner, place restrictions -- Chair Sanchez: All right. Ms. Bru: -- that tells you where you can put that sign. Chair Sanchez: Listen, I'm prepared to support the ordinance on first reading, but I have a lot of questions that need to be answered. Commissioner Sarnoff Let me just say something because being a lawyer and having done some first amendment legislation, or at least litigation, you're never going to have absolute comfort. You're dealing with probably the most protected area in the United States, which is speech. Commercial speech is less protected than is political speech than is other forms of speech. But as everybody sitting up here said, you know, they proposed something, or they thought of something a year, two years ago, we can succeed at doing nothing or we can move forward with this and take a chance that we're wrong; and if we're wrong, the courts will tell us how we're wrong. Just today or yesterday, the Third DCA (District Court of Appeals) said we were wrong in the way that we seized our cars because of either prostitution -- obviously, we tried to take the car for prostitution or in some other illegal activity, and the Third DCA said, no, you're wrong; but they also told us in there how to get it right. So, I would think in 30, 60, 90 days, we'll have a new seizure ordinance and we can, once again, start taking cars; and somebody will challenge that. This town is filled with lawyers, and they're good lawyers. You'll never create perfection. You'll do the best you can, or we can succeed at doing nothing. Andl would rather take my chances of getting something slightly wrong, asking some discretion, and saying, please don't take down or cite somebody for the kitty signs or the dog signs, but hey, a sign that has a commercial message, Mr. Code Enforcement, please go out there aggressively, take these down, and let's call the numbers and see where we can go with this. So we're never going to be comfortable up here. We're never going to say this is bulletproof because there's always going to be a smarter, better lawyer out there that's going to try a different angle we didn't think about. Chair Sanchez: Vice Chair. Vice Chair Spence -Jones: Yes. Mr. Chairman, Lucia's been trying to say something, before I City ofMiami Page 46 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 say something. Lucia, do you have something you want to say? Ms. Dougherty: Thank you very much. Vice Chair Spence -Jones: Because you've been standing for a few minutes. Chair Sanchez: Oh, I apologize. Ms. Dougherty: I have actually had experience with this exact ordinance in Miami Beach. Chair Sanchez: First of all -- well, hold on. Ms. Dougherty: Thank you. Lucia Dougherty -- Chair Sanchez: I'm opening up the public hearing now -- Ms. Dougherty: -- with offices at 1221 -- Chair Sanchez: -- so, therefore, you're recognized now. Ms. Dougherty: -- Brickell Avenue. Thank you. I've actually had experience with this ordinance in Miami Beach, and it's a very good ordinance. May I say to you, in Miami Beach they don't have promoters doing this anymore. Let me just explain to you, I've had three different cases. First one is the city Code Enforcement wakes up and they are plastered on all of the sidewalks and on the poles and everything else, actually stuck on them with some kind of a glue thing. Vice Chair Spence -Jones: Yeah. Ms. Dougherty: And they ripped them off and they cited the -- not the musician, who was -- which was Missy Elliott, not the promoter, but the record company. And in two instances, the record company hired me to negotiate their fines; and I can tell you that you could pay for a Code Enforcement officer for a whole year for what we paid in fines. Vice Chair Spence -Jones: Okay. Ms. Dougherty: Because they did not want to have their name run through the mill and not be able to operate in Miami Beach. So Miami Beach doesn't have that problem anymore. Secondly, the same thing happened with these handbills, so I -- you know, I -- the only thing you can do is go in and negotiate. And so I said, well, how do you know I had so many handbills? And there was boxes of them. I mean, you have to take them and take them into the office, and they had literally boxes of them; and so my job was only to negotiate how much, not whether or not you're guilty or not because you have now in here -- you don't have to catch the person doing it; whoever benefits from it. That's the difference. And the third one was a woman is walking across the street with her dog and is hit by a car. The dog runs away. She owns a print shop and puts up, you know, thousands of leaflets about the dog. They cite her. Chair Sanchez: See. Ms. Dougherty: And the Manager, however -- the City Manager was smart enough to dismiss it because -- Commissioner Sarnoff Exactly. Ms. Dougherty: -- I mean, it really does take somebody with some discretion and some smarts, City ofMiami Page 47 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 but you know, the Code Enforcement people do their job, but somebody above him decides that this is not the right thing to do. So I've had every single one of those experiences, but I can tell you, Miami Beach does not have promoters promoting in Miami Beach with handbills and/or stick 'ems on the public right-of-way. Vice Chair Spence -Jones: Mr. Chairman? Chair Sanchez: Yes. You're recognized. Ms. Dougherty: Andl have one more -- Vice Chair Spence -Jones: Okay, go ahead. Ms. Dougherty: -- thing after you finish. Vice Chair Spence -Jones: And that's why I wanted you to put something on the record 'cause I knew you had experience. Go -- say the last one, Lucia. Ms. Dougherty: I have a proposed amendment that would exempt out specifically bus benches and shelters, if you want to discuss that at this -- Commissioner Sarnoff They're not -- Ms. Dougherty: -- point. Vice Chair Spence -Jones: No. Ms. Dougherty: I would just ask that you say in 54-8, except as provided in Chapter 54, Article III, which is an existing provision, and so that we -- it makes it clear that it's not dealing with bus benches and shelters, if you could add that in as first reading. Thank you. Mr. Loret de Mola: Mr. Chairman? Chair Sanchez: Yes, sir. Vice Chair Spence -Jones: Okay. Chair Sanchez: Oh, I'm sorry. Commissioner, you -- Vice Chair Spence -Jones: Thank you, Mr. Chairman. So at least we got some clarity that -- so we're going to take the same exact thing that Miami Beach is doing and we're doing it. Mr. Loret de Mola: Let me explain this one, all right. It's not as simple -- Vice Chair Spence -Jones: Because I just want to -- I -- Mr. Loret de Mola: -- as she put it on record -- Vice Chair Spence -Jones: Mario -- Mr. Loret de Mola: -- all right? Vice Chair Spence -Jones: -- and the reason why -- I mean, the focus, yes, definitely is on events and activities and those things that take place, but I don't want us to forget the we -buy -houses people, because in my particular community, it's out of control. City ofMiami Page 48 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Loret de Mola: Yeah. I understand. Vice Chair Spence -Jones: So you know -- so that -- it's not really about just being an event. It's about also people posting these signs to buy and sell houses in neighborhoods or at least target individuals, but go ahead, Mariano. Mr. Loret de Mola: Okay. This ordinance -- and I'm all for this one, and we discuss it quite a bit, all right, between the Legal Department, Code Enforcement, Public Works and Solid Waste, and so this ordinance brings another things that we did not have it in our codes before. Vice Chair Spence -Jones: Right. Mr. Loret de Mola: So that will be a help to really enforce this one. It's not easy to enforce. I'm sorry to tell you. We have done the same thing. I can show you all of this -- Ms. Dougherty: You can't enforce it -- Mr. Loret de Mola: -- all of those people that we get -- sorry -- we got the promoters, we got the people, and we got the people at the company, the owners; we write letters to them. They are out of the city. We cited them. We send them. And out of the whole thing, we get only two people who pay, and actually, we cannot enforce. What is happening on the City of Miami -- and that's what I would like to see on this ordinance is that when that happen, the police is together with the Code Enforcement at the time that this is placed and it's stick to the pole or whatever, and they can arrest that individual for doing that at that time. We don't have this on this ordinance at the present time, and I will like to see this one -- Ms. Dougherty: Well, that's a -- Mr. Loret de Mola: -- on a future ordinance. Ms. Dougherty: -- good suggestion, too, but let me just say this to you. Right now you don't have the right to go after anybody who is a beneficiary; only after -- Mr. Lored de Mola: Right. Ms. Dougherty: -- you pass this ordinance. Mr. Loret de Mola: And this -- Ms. Dougherty: You have to actually catch them doing it now. Mr. Loret de Mola: -- the new ordinance have that. Ms. Dougherty: Correct. Mr. Loret de Mola: Yes. That's all I'm saying. There's some benefit to this -- Chair Sanchez: All right. Mr. Loret de Mola: -- and we would like to use it. Chair Sanchez: Okay. Commissioner Sarnoff So can I amend my motion to make it clearer? City ofMiami Page 49 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Yes, sure. Ms. Bru: Mr. Chairman. Ms. Thompson: I'm sorry. Chair -- Ms. Bru: If we may, can we clarify the issue of arresting the violator? George Wysong: Hi. George Wysong, assistant city attorney, police legal advisor. The Code -- there's always been a provision in the Code for the police to take action when the sign is being erected. The issue is oftentimes, the police don't see the fellow putting up the sign up. Vice Chair Spence -Jones: Right. Mr. Wysong: Since it's a municipal violation, the law requires that the violation occur within the presence of the officer. The officer has to see the sign being stapled to the poles and stuff like that. So this a two prong approach. One, if the officer sees the sign being placed he can take immediate action and make an arrest. That provision of the Code is now in the law enforcement handbook, which is issued to all the City ofMiami police officers. However, if it's the following day and they wake up, as Ms. Dougherty said, and there's signs all over the place, then Code Enforcement moves in and cites the person who made those signs appear in the middle of the night. So I just wanted to clarify that. Thank you. Chair Sanchez: All right. Vice Chair. Commissioner Sarnoff So I'm going to make a motion to approve on first reading the sign ordinance with 54-18 redacted and 54-8 with the following language, "Except as provided in Chapter 54, Article III, displays approved by the City Commission shall be no larger than 16 square feet and no portion of any display or attachment thereto may be more than 84 inches from the ground" Commissioner Gonzalez: Second. Chair Sanchez: All right. There's a motion and a second. The item is under discussion. Anyone else from the public wishing to address this item? Okay. I do apologize. Nina and then Luis. Nina West: Okay. Nina West, 3690 Avocado Avenue, and I also am speaking for Barbara Bisno, who was here all morning -- Chair Sanchez: Yes. Ms. West: -- waiting for this and had to -- had another appointment, and she apologizes. Barbara Bisno is speaking for many homeowners associations downtown, and I'm speaking, myself as an individual who lives in Coconut Grove and live far away from the Central Business District, but still have these fliers all over my lawn andl don't know how they get there. I mean, little bits of paper and handbills and everything else. So the ordinance, I think, is long overdue. And the reason we haven't been successful is because we haven't been able to prosecute it, but I think once the word gets around that it's going to cost people money, aggravation, time, then the problem will go away. Andl strongly support the ordinance, andl say the same for Barbara Bisno. Thank you very much. Chair Sanchez: Thank you, Nina. Mr. Herrera, you're recognized for the record. Luis Herrera: My name is Luis Herrera, president of Vizcaya Homeowner Association. Let me City ofMiami Page 50 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 bring to you some ideas. How about if you -- right now the Dade County, they got -- in a political situation, they got a permit. I think, after the election or whatever, they got 14 days to take the signs off a right-of-way. Something like that is in the Dade County. Now, if the people promoting advertising, like Lucia said in Miami Beach -- now, I got advertising in my hand andl don't have to do nothing without advertising places -- and no place else, andl like to put it in a post light; andl have to do nothing with it. And push it on a post light, all right? They going to fine a guy that he never did it. So it's a question here that got to be clarify where you put the sign. Right now we have -- in my neighborhood, we have a neighbor with a -- like Mr. Angel Gonzalez said, a square piece of plywood in front of his house posted in a -- in the pine tree that say engineers something, the (UNINTET,TIGIBT,F) engineer, something. This -- andl don't think so they had a permit for that, andl make complaint in the NET office and nothing happen. Still, the sign in there. Ugly. So we got to take care of everything. I don't know which way we going to do it. So thinking about it, they going to put something to people they never know put the sign in the poles or whatever. Thank you. Commissioner Sarnoff Luis, this is complicated because if a man -- Mr. Herrera: Yeah, it is. Commissioner Sarnoff -- hands you a -- hands you one of these, let's go to one of these -- Mr. Herrera: Right. Commissioner Sarnoff -- and you drop it -- Mr. Herrera: Yeah, that's another one. Commissioner Sarnoff -- who's the violator? Mr. Herrera: Yeah. Commissioner Sarnoff So it is complicated. Mr. Herrera: It's complicated. Commissioner Sarnoff And for whatever it's worth, I came out of a Morningside meeting and they told me that there was a huge two-by-four -- and I'm talking big. It had to be nine, ten feet - - on Biscayne Boulevard. They told me -- Mr. Herrera: Right. Commissioner Sarnoff -- it'd been there for three months -- Mr. Herrera: Right. Commissioner Sarnoff -- and it was. And you know, Al Alvarez, my sergeant of [sic] arms and I, we couldn't even take it down it was so embedded into the public right-of-way. Mr. Herrera: But in years and years, everybody advertising. There got to be a way to, you know Commissioner Sarnoff We need to regulate it. Mr. Herrera: Right. City ofMiami Page 51 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: All right. On the motion, I -- I'm going to support it on first reading, but would proffer a friendly amendment to it, that the ordinance have language where the language states commercial message or promotional message. In other words, the signs, themselves, have to be focused on two aspect. One is a commercial message and the other one is a promotional message. Commissioner Sarnoff I have no problem with your recommendation. It's been vetted with the City Attorney. If you sit with them, they'll explain to you why that becomes problematic, but -- Chair Sanchez: Well, I'll support it on first reading, and then it's coming back for second; and at second reading, we could vote on it, but that's -- I want to make sure that the language is in there -- there's -- you know, it's -- there's safeguards to protect those unconsequences [sic] people that'll probably end up being -- and you know, listen, let's be honest. Somebody brought up that if you get a ticket and you go in front of the Code Enforcement, you know -- if you get a ticket, first of all it's time out of your work; it's an inconvenience for you to have to go in front of Code Enforcement to address the issue. You'd rather not have to deal with that, so let's go after the people that are out there that are really -- are committing the act that we're trying to prevent and educate people. All right, that's -- no further discussion on the item. It is an ordinance on first reading. You -- did you make an amend -- you amended it? Commissioner Sarnoff Amended it. It -- Chair Sanchez: As amended. Commissioner Sarnoff -- as amended. Yeah. Chair Sanchez: All right. Ms. Bru: Chairman -- Chair Sanchez: Madam Attorney, read the ordinance. You don't know what the amendment is, huh? Ms. Bru: Yeah. Let me just say something. When you start to distinguish between commercial and -- Chair Sanchez: Well, I'll tell you what. I'll deal with it second reading. Ms. Bru: Yeah. Chair Sanchez: We've got time to sit down and talk. Ms. Bru: I was going to suggest we'll go ahead for second reading and look at it from that perspective and -- Chair Sanchez: Fine. Ms. Bru: -- see how it is that we can try to deal with the problem that we've identified, which is mostly generated by commercial advertisement in a manner that is lawful and constitutional and try to come back with something that speaks to that. Let me also suggest that with respect to the exemption that was suggested by Ms. Dougherty, I would hesitate just to mention one particular section of the Code, because we have other sections of the Code wherein signs are permitted; andl would hate to be under -inclusive. So we can make reference to that particular section, but do something to make sure that we don't forget to mention something that is permitted, such as, you know, the temporary garage sale signs and things like that. So we'll also work with that City ofMiami Page 52 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 amendment, okay? Vice Chair Spence -Jones: Okay. Chair Sanchez: All right. And I'm sure you looked at all the previous ordinance to make sure that there's no duplication of services. Ms. Bru: Right. Chair Sanchez: Okay. All right. Could you read the ordinance into the record -- Ms. Bru: Okay. Chair Sanchez: -- followed by a roll call? On first reading, and we are on -- Mr. Hernandez: FR.1. Chair Sanchez: -- FR.1. The Ordinance was read by title into the public record by Deputy City Attorney Julie O. Bru. Ms. Bru: And with the amendments that have been discussed here on the floor. Chair Sanchez: All right. Madam Clerk, roll call. Ms. Thompson: Roll call. Chair Sanchez: As amended. Ms. Thompson: As amended. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been passed on first reading, 4/0, as amended. Chair Sanchez: All right. Before we go to the next one, which is FR.2, this is a perfect example of how an ordinance should be brought forth in front of this Commission. It came out of the district Commissioner's blue page. It was discussed in an open forum. It went through all the legal channels to make sure that we were creating a proper legislation. It was discussed in the Commission, and it's been approved on first reading, and hopefully, it'll be approved on second reading. All right. Commissioner Sarnoff This, I think is -- is this not a first reading? Chair Sanchez: This is first reading on -- Mr. Hernandez: Yes. Chair Sanchez: -- FR.1. Commissioner Sarnoff FR.2, I think, is a first reading, too. Mr. Hernandez: Yes. Chair Sanchez: Yes. City ofMiami Page 53 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 FR.2 07-00435b District 2- Commissioner Marc David Sarnoff Mr. Hernandez: On both. Chair Sanchez: They're both on first reading. Commissioner Sarnoff I'm sorry. Chair Sanchez: As a matter of fact, they both came out of this -- Commissioner Sarnoff Right. Chair Sanchez: -- out of your office and through a discussion item, and therefore, following the correct procedure to become a bill -- to become an ordinance. ORDINANCE First Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 22 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ENTITLED "SOLID WASTE," AND CREATING NEW ARTICLE VIII, "HANDBILLS," SECTIONS 22-180 THROUGH 22-185, TO CREATE DEFINITIONS; ESTABLISH CRITERIA FOR REBUTTABLE PRESUMPTIONS CONCERNING LITTERING WITH COMMERCIAL HANDBILLS; PROVIDE FOR SEIZURE OF HANDBILLS FOR USE AS EVIDENCE AT PROSECUTION; PROVIDE FOR REMOVAL OF HANDBILLS AT VIOLATOR'S EXPENSE; PROVIDE FOR ENFORCEMENT AND PROVIDE FOR FINES AND PENALTIES FOR VIOLATIONS; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE. 07-00435b Legislation SR.pdf 07-00435b Legislation FR.pdf Motion by Commissioner Sarnoff, seconded by Commissioner Regalado, that this matter be PASSED ON FIRST READING PASSED by the following vote. Votes: Ayes: 5 - Commissioner Gonzalez, Sarnoff, Sanchez, Regalado and Spence -Jones Chair Sanchez: All right, FR.2. FR.2 is also an ordinance on first reading, and that one pertains to handbills. Priscilla A. Thompson (City Clerk): Chair, may I ask a question of you, please? Chair Sanchez: Yes, ma'am. Ms. Thompson: Since there was also discussion of FR.2 on FR.1, will we state for the record that we're combining the discussion so that it relates to both of those ordinances? Chair Sanchez: For the record, both items have been combined for discussion; both items will be taken up separately for a vote, and now we are on the second item, which is the handbills. All right, is there a motion on this bill [sicg? Commissioner Sarnoff So move. Chair Sanchez: I mean, on this ordinance. Commissioner Regalado: Second. Chair Sanchez: There's a motion by Commissioner Sarnoff, second by Commissioner Regalado. City ofMiami Page 54 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Once again, before we open it up for discussion, is there anyone from the public wishing to address this Commission, please step forward and be recognized. But, Nina, before we do that -- Nina West: I'll be really quick. Chair Sanchez: Could you just go ahead and put something in the record as to the ordinance in itself, so people that are watching on TV (Television) at home know what we're talking about? George Wysong: I've been delegated by the various entities that helped to create this ordinance. George Wysong, assistant city attorney, City ofMiami. This is an amendment to Chapter 22, the Solid Waste ordinance, to essentially do the same thing as the last item that was discussed. It not only prohibits the collection and throwing and discarding of handbills, but it also goes after the individual who has hired the individual to handbill and create the solid waste mess on the ground. So it's -- there's two prongs of attack, and it relates back to the person who's paying the individual to litter, essentially. Chair Sanchez: All right. Ms. West: This will be quick. 3690 Avocado Avenue, Nina West; and we make the same argument for this part of the ordinance. Thank you. Chair Sanchez: So you stipulate your arguments -- your statement on the first. Ms. West: Okay. Chair Sanchez: Okay. Ms. West: Same as the statement on the first. Thank you. Chair Sanchez: All right. Anyone else? Judith Sandoval: Judy Sandoval, 2536 Southwest 25th Terrace. This is not directly pertaining to this particular ordinance, but I simply wanted to mention that a big problem in the City andl believe all neighborhoods, certainly in mine, is that on the public right-of-way, the swales and the sidewalks, everyday homeowners have to go and pick up garbage that is thrown out of cars. It's baby diapers, it's condoms, it's cups, it's all sorts of junk, and we are responsible for doing that; andl understand we can be fined if we don't. Some day somebody should do something about that. Thank you. Chair Sanchez: Thank you. All right, anyone else? Seeing none, hearing none, the public hearing is closed; coming back to the Commission. It's an ordinance on first reading. For the record, it is FR.2. A motion. Commissioner Sarnoff We moved it. I'm -- I'll just incorporate what I said before. This is good legislation. I think it will take these items that will restrict them. They're on the streets of Coconut Grove. They're on the streets of Biscayne Boulevard probably five out of seven days a week. Chair Sanchez: All right. Any further discussion? We can't discuss it. We don't have a motion. We do? Who made the motion? Commissioner Sarnoff I did. Priscilla A. Thompson (City Clerk): It was moved by Commissioner Sarnoff City City Commission Meeting Minutes January 24, 2008 FR.3 07-01420 District 2- Commissioner Marc David Sarnoff Commissioner Sarnoff Second by Regalado. Ms. Thompson: -- and second by Commissioner Regalado. Chair Sanchez: All right. Item under discussion. All right. Well, once again, on first reading, I'll support it. I just want to make sure that the City Attorney is looking at -- that we're not duplicating an ordinances that we had in the past that, you know, maybe could be amended to accomplish what we want to accomplish here. If we don't, then this is a good ordinance. I'll bring that up on second reading. Okay. No discussion on the item. It's an ordinance on first reading. Madam Attorney, read the ordinance into the record, followed by a roll call. Julie O. Bru (Deputy City Attorney): Yes, Mr. Chairman. The Ordinance was read by title into the public record by Deputy City Attorney Julie O. Bru. Chair Sanchez: All right. Madam Clerk, roll call. Ms. Thompson: Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been passed on first reading, 5/0. ORDINANCE First Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 4, ARTICLE I, OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED "ALCOHOLIC BEVERAGES/IN GENERAL," TO RESTRICT THE HOURS IN THE SD-2 COCONUT GROVE CENTRAL COMMERCIAL DISTRICT WHEN ALCOHOLIC BEVERAGES MAY BE SOLD FROM, 5 A.M. TO 3 A.M. BY NIGHTCLUBS, SUPPER CLUBS, HOTELS, MOTELS AND APARTMENTS WITH 100 OR MORE GUESTROOMS; ANY OF THE PRECEDING ESTABLISHMENTS IN A RETAIL OR WATERFRONT SPECIALTY CENTER ON WEEKDAYS, INCLUDING SATURDAYS AND SUNDAYS; MORE PARTICULARLY BY AMENDING SECTION 4-3(a)(6) OF SAID CODE; CONTAINING A SEVERABILITY CLAUSE, AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE. 07-01420 Legislation FR/SR.pdf Motion by Commissioner Sarnoff, seconded by Commissioner Gonzalez, that this matter be PASSED ON FIRST READING PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Regalado Absent: 1 - Commissioner Spence -Jones Chair Sanchez: All right. FR-3 has been tabled by the district Commissioner and will be taken up one of the last items on the agenda. [Later...] Chair Sanchez: All right. Time certain items, giving everyone an opportunity to attend the meeting, those who work. FR.3. FR.3 is an ordinance on first reading, and that is pertaining to alcoholic beverages in general. So let's take up this item. Are we ready? Commissioner Sarnoff You want me to do it? City ofMiami Page 56 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Yeah. Commissioner Sarnoff Okay. FR.3 is an ordinance, which is restricted to the Grove, that would restrict the hours in the SD-2 Coconut Grove Central Business District to alcoholic beverages that would be sold from 5 a.m. to 3 a.m. by nightclubs, supper clubs, hotels, motels, and apartments with 100 or more guest rooms as a result of gettingl think what is known as a 4C3P0 license. And the reason I bring this to this Commission's attention is the amount of resources that we spend between the hours of 3 and 5 o'clock in the evening in Coconut Grove. I have and I've provided to you -- and I'll give you additional copies and pass to Commissioner Gonzalez and I'll make sure that the City Clerk has one. This is the calls for service for Coconut Grove in this particular area, and you can see, from June 2006 to June 2007, there are 425 calls for service. This is an incredible use of our resources between the hours of 3 and 5 o'clock. This is good government. This is an area that does not need to have people milling in the streets at 5 a.m. pretty well drunk. And for those of you that don't know this, the City ofMiami Beach, from 5th Street south -- well, let me get this right. Yeah, I guess it is 5th Street south -- closes their establishments at 3 a.m., and they're in the process of now closing all of their bars and establishments at 3 o'clock now as a result of the new mayor. So what's happening is people are drinking in Miami Beach, and at 2: 30, 3 o'clock, they now come to the City ofMiami. Hopefully, they go to our 24-hour district in downtown, but oftentimes, they come down to the Grove. They're not sober. They're drinking very late, and they're going to continue to drink for the next two hours because we legally permit it. If we're going to have very late -night drinking, let us have it where we designated it, and we designated it in our entertainment district downtown around 11 th Street, 12th Street, and not in Coconut Grove. Coconut Grove is growing up. This will help Coconut Grove to grow up. This will help the police. The police do not need to have 425 calls for service in a one-year period. There are certain establishments, which will come up right after this; you'll see an appeal -- on just the number of calls that establishment brings. You know, this is not fair to the residents. There was one night that we had -- I think it was seven business establishes [sic] doors kicked in; nothing was stolen. It happened at 4: 30 at night, and you know -- you just know it was a drunk person because nothing was stolen. And I'm telling you, as a Commissioner that represents District 2, there is an appropriate place for this, and we designated that place, and it does not belong in Coconut Grove. Chair Sanchez: All right. Commissioner Gonzalez: All right. Chair Sanchez: All right. There's a -- we need a motion and a second. Commissioner Sarnoff I'm sorry. Let me move the ordinance, FR.3. Chair Sanchez: The motion has been made by Commissioner -- Commissioner Gonzalez: I'll second the motion. Chair Sanchez: -- Sarnoff, second by Commissioner Gonzalez. Before we vote on the item, it is open to the public. Anyone wishing to address this item, please approach and -- Louis Terminello: Thank you. Chair Sanchez: Sir, you're recognized for the record. Mr. Terminello: Louis J. -- Chair Sanchez: Are you an attorney representing a client? City ofMiami Page 57 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Terminello: Yes. Chair Sanchez: Okay, so you're not entitled to the two minutes. You get more time. Mr. Terminello: Thank you. Louis J. Terminello, of the law firm of Terminello & Terminello P.A. I'm going to be addressing you in a few moments on the other counsel of record for Visions [sic], but at this juncture, you sit in your legislative, rather than quasi judicial, so I'm going to address you in the proposed ordinance. With all due respect, I don't think that the recitation regarding Miami Beach is a hundred percent accurate. There is no prohibition against 5 a.m. south of 5th Street. There's a prohibition against nightclubs south of 5th Street, but there's no prohibition against a restaurant or a bar/lounge staying open until 5 a.m. And as far as I'm -- as far as I know -- and I'm pretty well involved in it -- there's no rollback effort that has come out of the new mayor's office as of yet. That could happen tomorrow, of course. But one of the interesting items about that issue that you bring up is that there is an exception for bona fide restaurants. The prohibition for the dancing and entertainment is directed toward nightclubs only, and a restaurant, a bona fide restaurant that is south of 5th Street is -- can stay open until 5 a.m. There it's -- extension of hours is simply a matter of a component on your occupational license or what you pay for. We understand the theory behind roll back to 3 o'clock. My concern is that there are some items that you may not fully understand when you -- with this kind of legislation. And I'm sorry that we don't have a full Commission here today, andl do understand we'll get another opportunity at second reading, but -- Chair Sanchez: You do. This is -- this requires two readings, so you do have an opportunity to come back. Mr. Terminello: No. I do understand that. I want to give you something to think about between today and second reading, I guess. Chair Sanchez: All right. Mr. Terminello: Many of the nightclubs and lounges in the City ofMiami, as in elsewhere in South Florida, operate on a percentage lease with their landlords. And many of them, especially the ones that are more nightclub than restaurant, operate from hours such as 11 or 12 o'clock at night 'til 5 in the morning. And by effectively rolling back that two hours after they've been granted it by special exception, you're effectively eliminating one-third of their operating time. Most of the nightclubs, I could tell you now, will not be able to meet their percentage rent requirements that they have with the landlords that they entered into at the time that they believed that they could stay open until 5 a.m. And that's a big issue because you're putting viable businesses out of business with a stroke of a pen for the wrong reason. Crime is an issue, and of course, everybody in Coconut Grove is concerned about crime, as they should be. But there are other ways to deal with crime. For example, in the conditions to the special exceptions, for example, additional off -duty police officers were agreed to. If you look at all of the special exceptions that were issued, you see that there are incentives built into them to keep people off the streets, and in the latest one, for example, with Visions [sic], there was an agreement to hire additional off -duty officers, to place them on the street levels and things along that nature. It's very difficult to, by a stroke of a pen, put somebody out of busy, and it -- I'm just not sure it's right. There is -- I floated the suggestion of at least making them legal nonconforming uses because when they entered into their lease agreements with personal guarantees and things like that, they had anticipated the ability to keep their businesses open 'til 3 a.m. Legal nonconforming uses is -- it may not apply for a regulation regarding hours of sale, but it's something that is normally done when you change a use or a regulation. There should be exceptions for things like bona fide restaurants. What you're saying is that a bona fide restaurant in the affected district has to stop serving alcohol if their special exception hours are changed to 3 o'clock. You're going to hear testimony from a restaurant like Mr. Moe's, for example, that that's economically devastating to a place that's not a nightclub that happens to be City ofMiami Page 58 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 in the district. But there're others; it's just not him. So I would urge you, as we go through this debate, and as we come back next time, hopefully, with a full Commission, we can think about issues like the economic impact, the contractual obligations that exist, the legal nonconforming uses. At least take the one -- for the existing premises today that were in existence at the time that these people entered -- put their name on a personal guarantee for a million -dollar -a -year lease, at least grandfather them in until such times that use is discontinued or abandoned. Exempt -- think about exempting bona fide restaurants. There's no -- as Miami Beach does, as a matter of fact. There's no reason -- any of the good reasons that we've heard so far, there's no good reason to tell a Denny's that they have to stop serving alcohol at 3 o'clock, or a Mr. Moe's, for example. Coconut Grove needs some vitality, needs some interest, needs some reason for people to be there, andl would ask you to consider these items as we go along. Andl thank you for the time. Chair Sanchez: Thank you. Barbara Lange: My name is Barbara Lange, andl live in 3495 Main Highway, in Coconut Grove, andl live in the Village Center. If you were in a helicopter and looked down, you'd see that the Village Center is very small, and it's surrounded by residential. Andl really applaud you, Commissioner Sarnoff, for bringing this up. And years ago, we would have thought there was not a chance in the world of turning around smoking in public establishments, and restaurants and bars, and that changed around, and I'm hoping, with your vision, this will change also. Thank you. Chair Sanchez: Thank you. Matt Goldman: Good afternoon. My name's Matt Goldman, and my address is 2911 Grand Avenue, Coconut Grove. That's my business address. I am one of the owners of Oxygen Lounge. Oxygen has been a nightclub that's been operating in the Mayfair shopping center complex for almost six years now. I have great regard for Commissioner Sarnoff and respect, but in this instance, I really feel he's wrong. I'd like for the Commission to consider both the rationality and the fairness of what's being proposed. The rationality being is that the Commissioner would have you assume that these 400 and some odd occurrences that he referred to statistically were all the result of drunken folks coming out of drinking establishments after 5 a.m. I think that's probably a false assumption. I don't see -- we don't have any factual information to support that. I can tell you, personally, I'm not aware of a single instance for the last several years of a patron of Oxygen, leaving Oxygen at that hour, and being arrested for vagrancy or misbehavior or misconduct, what have you. I'm not aware of a single instance. So first off I think it's unfair with the great sweep of the hand to look at my establishment and say you're at fault; you're a contributor to this situation when, in fact, I don't believe that to be the case. So the rationality I think of what's being proposed is really dubious. Fairness, just as I've indicated, I think you need to look at the particular establishments involved and judge them independently. Coconut Grove and the downtown Coconut Grove business district, I think, as you all well know, is an area that is struggling. The merchants and the business district is having a very difficult time. Businesses are closing. At one time, Coconut Grove and the downtown area was known as an entertainment district all over the City, and people would come; tourists would come. We're not finding that at all. In fact, there's been a reversal of the business activity over the last several years in the Grove. Andl do respect the concerns of the residents and the citizens that live in the area, but I think it's a false assumption that if we were to rollback these drinking hours from 5 a.m. to 3 a.m. that would have any significant impact whatsoever on the level of criminal activity that the Commissioner expresses concern about. And I'd like to hear from the police chief. I'd like to see statistical information that would support that assumption. So I will thank you for giving me the opportunity to express my views. Thank you. Chair Sanchez: I have a question for you, Mr. Goldbert? City ofMiami Page 59 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Gonzalez: I believe it's very simple to determine that -- Mr. Goldman: Goldman. Commissioner Gonzalez: -- by the call signals. And whatever the unit respond to a call, they have to write down the signal and what kind of an incident it was that they responded to. So it's not very difficult to identify the 400 calls. Commissioner Sarnoff And what I gave you, Commissioner Gonzalez, was between 3 and 5. Commissioner Gonzalez: And 5. Commissioner Sarnoff And alll did was total up the number of calls between the 3 and 5. Chair Sanchez: Right. And in nowhere are you implementing [sic] that those calls are generated by people coming out of their bars? Commissioner Sarnoff Oh, no. There -- Mr. Goldman: I'm not aware of any instance. Commissioner Sarnoff -- when the Visions [sic] comes up, we will discuss their -- Chair Sanchez: Okay. Commissioner Sarnoff -- disturbances. Chair Sanchez: All right. Commissioner Sarnoff No. You can tell from here these are coming from Apple Martini, Visions [sic]. You'll see where they're coming from. Chair Sanchez: Sir, you don't serve food in your nightclub? Mr. Goldman: We do. Chair Sanchez: You do? Mr. Goldman: We have a sushi bar. We serve sushi -- Chair Sanchez: So -- Mr. Goldman: -- and we always have. Chair Sanchez: -- if you were to close at 3, you have no purpose of staying open? I mean, if they -- if this were to pass, you have no purpose of staying open 'til 5? Mr. Goldman: Unless folks wanted to linger, you know, after the drinking stopped -- Chair Sanchez: All right. Mr. Goldman: -- which is always a possibility. I guess -- if you'll indulge me one more minute. Andl want to refer to what Mr. Terminello referred to, and that is really having to do with expectations and contract. When I made this -- the decision to go into this business andl negotiated my deal with my landlord, it was with the expectation that was going to continue to City ofMiami Page 60 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 operate 'til 5 a.m., and that worked on both sides of the transaction. The landlord had that expectation, and indeed, we do have a percentage rent arrangement. It will impact that adversely, andl had no reason to believe that this arrangement and this ability to operate 'til that hour of the day would change. And again, I think that's wrong, and I would pick up on what Mr. Terminello had suggested, and that -- that there be some grandfathering in of the existing establishments that do have that treatment and that that continue, but that new uses would be, perhaps, changed. Commissioner Sarnoff Mr. Goldman. Mr. Goldman: Yes, sir. Commissioner Sarnoff I apologize. You state that you have a percentage rent. Is there a requirement to meet a certain threshold for percentage rent? Mr. Goldman: No. Commissioner Sarnoff So counsel saying a moment ago that you have to pay a certain amount of a percentage rent, it's whatever you make, right? Mr. Goldman: Well, there are different arrangements, obviously. There are percentage rents -- Commissioner Sarnoff Right. There -- Mr. Goldman: -- deals where you pay, as a tenant, nothing but percentage rent -- Commissioner Sarnoff Right. I -- Mr. Goldman: -- and that's your rent. And there may be thresholds in those kinds of leases which require the tenant to reach certain thresholds. Commissioner Sarnoff No. I -- Mr. Goldman: I do not have that type of arrangement. Commissioner Sarnoff That's my question to you. Mr. Goldman: Right. Commissioner Sarnoff I want to make sure that everybody that comes up to me testifies as to what their personal knowledge is. So you don't have a minimum threshold to make? Mr. Goldman: No, sir. Commissioner Sarnoff And your percentage rent is you just pay whatever it is you make percentage -wise to your landlord? Mr. Goldman: If it goes beyond a certain gross revenue. Commissioner Sarnoff Andl take it you also have a set rent as well? Mr. Goldman: Yes, a base rent. Commissioner Sarnoff And your landlord would be at risk, along with you, if you made a little less money as well? City ofMiami Page 61 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Goldman: Most definitely. Commissioner Sarnoff Okay. Chair Sanchez: I just have one question. What would be the economic impact for you, one month, if this ordinance should be adopted? Mr. Goldman: One month? You want me to quantf in dollars for you, huh? Chair Sanchez: You know, those drinks get expensive. Mr. Goldman: Well, they are. Twenty-five to thirty thousand dollars. Chair Sanchez: All right. Thank you. Mr. Goldman: Thank you. Chair Sanchez: Next speaker. Mr. Terminello: I'd like to clam for Mr. Sarnoffs benefit -- Chair Sanchez: Sir, you need to state your name and address on the record, please. Mr. Terminello: Louis J. Terminello, again, with the law firm of Terminello & Terminello, P.A. Visions [sic], among others, have a percentage rent that requires a minimum gross sale each year, and if they don't meet that minimum, then it's a breach of their lease. Oxygen doesn't have that kind -- I guess. We heard Mr. Goldman's testimony -- but they certainly do exist. And Visions [sic], for example, is one that does have that type of lease. Commissioner Sarnoff Right. I don't think you meant to leave this Commission with the impression that all of these people have that minimum threshold. Mr. Terminello: Correct. Commissioner Sarnoff You just weren't clear -- Mr. Terminello: But the ones -- Commissioner Sarnoff -- when you spoke before. Mr. Terminello: -- in -- primarily in CocoWalk would because the landlord at the time that most of these -- 'cause we negotiated most of them -- at that time for that period of time between Mass Mutual and the predecessor to the existing landlord all of those -- Commissioner Sarnoff So -- Mr. Terminello: -- leases have minimum -- Commissioner Sarnoff -- your main concern is that these folks would still have to pay even if we put them out of business, right? Mr. Terminello: Well, my concern is that they're not going to meet those thresholds. It's not a matter of us coming out of pocket just to stay open if, for some bizarre reason, we chose to do that. If we don't make that minimum, it's a breach of our lease, and it's subject to eviction. And - City ofMiami Page 62 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff And if -- would you withdraw that argument if your landlord withdrew its requirement for that threshold? Mr. Terminello: Yeah. I assume that we could just rely on the three or four other arguments that I'd like to make when there's enough time. Commissioner Sarnoff Right. But you would withdraw that argument? Mr. Terminello: Well, of course. If that -- Commissioner Sarnoff Okay. Mr. Terminello: -- if those facts don't exist, then those facts don't exist. Commissioner Sarnoff Okay. Mr. Terminello: But first of all, I don't think that the landlord would be willing to do that, and secondly, those aren't our facts. As we stand here today, if we don't make our minimum gross revenue, in any given period within the lease, it's -- we're subject to eviction, and that's the way those leases read. And l just wanted -- Commissioner Sarnoff Right. Mr. Terminello: -- to clarify that. Commissioner Sarnoff Well, we have one more time to address each other, so -- Mr. Terminello: Yes, we do. Commissioner Sarnoff -- we'll both come in with the lease and whatever the landlord would like to say. Mr. Terminello: Right. Commissioner Sarnoff Okay. Chair Sanchez: Next speaker. Yes, sir. Shawn Shahnazi: Hi. Shawn Shahnazi, 41 Shore Drive North. I'm the owner of Vision Nightclub, Apple Martini. For the record, I purchased that business, Apple Martini, back in 2004. That club has been there since 1991. I purchased an existing business that was already open 'til 5 a.m. As a matter offact, I worked there as a bartender, as a manager, as a promoter from 1991 to 1998 in the same venue. So when I bought the business, when I signed that lease, which is $36, 000 a monthflat -- plus, ifI do not make three mill -- ifI do not sell three million dollars a year, I can be evicted, after investing a million dollars in the place. Okay, so unfortunately, we going to pay the price. More importantly, I have 57 employees. And to Commissioner Sanchez, what would we lose? We would lose about 20, 30 percent of our revenue, which basically would put us out of business. Thirty thousand dollars a month -- I think Mr. Goldman would go a step further. It is our profit margin. In this business, we make 20 to 22 percent profit to begin with, so ifI lose 30 percent of my sales, you know, how long can I stretch it? I don't know. Maybe I'm the owner; I can go farther. I have other businesses, but my 58 employees would definitely be out of a job. There's no way I can continue to keep them. And going back to Miami Beach, Coconut Grove has always been a nightlife. I personally have City ofMiami Page 63 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 worked here since 1985, for Monty Trainer all the way down. It's always been like that. Miami Beach became 5 a.m. after us. South Miami took it after us. And it'd just be an unfair competition for us. We won't be able to compete with South Miami, and if it was the entire City ofMiami, to be honest with you, Commissioner Sarnoff, if it's the entire City, no problem. You know what? At least you got to compete. But when you can just go across the street to Flannigan's and it stays open 'til 5 a.m. and this restriction doesn't apply to them, we're just losing every ounce of business that I invested my livelihood to make. You know, Miami Beach is 5 a.m. Downtown Miami -- I own -- I'm a partner in one of the clubs in the 24-hour district. When we invested the money in that street, there were -- excuse my language -- nothing but drug dealers, homeless people. We invested over a million dollars to make that street to be what it is, and for the same City to say, you know, if crimes happen there, let's serve 24 hours liquor, which I'm totally against, to be honest with you. You know, that brings nothing but trouble. That brings nothing but police calls. Okay, and then another neighborhood down the street, let's stop at 3 because violence here affects everybody. I have tried to get -- find out how many exact crime has happened. And from my records, from my Sergeant Colon that went to the Police Department, the 427 is not just for Coconut Grove. It's for the entire area that goes all the way to Flagler, as well as to Brickell Avenue, so they're not coming all from the four nightclubs in CocoWalk or Mayfair. That's for the whole area. Last year, I spent $60, 000 in off -duty police, as a private citizen. I spent over 60 -- Chair Sanchez: How much? Mr. Shahnazi: Sixty thousand dollars. Chair Sanchez: In off -duty? Mr. Shahnazi: In off -duty police in three nights a week. Chair Sanchez: And all the clubs are required to have off -duty? Mr. Shahnazi: Every one of the clubs that are here have it already. After July, when I got my supper club permission again, I even went up further andl brought an extra police that only patrols the street at a cost of $300 a week -- I apologize, $380 a week since then, which brought my cost up another $9, 000. So as much as incidents happens, when you have clubs of 16, 17,000 square feet -- we serve food 'til 5 o'clock in the morning, full menu. It's not -- you know, it's more, I would call it, alehouse -style menu. Okay. We've tried them all. You know, we are being responsible citizen [sic]. We are trying to do our best, andl don't think a lot of people can honestly admit that they pay over $60, 000 in off -duty. In addition to that, I spend 190,000 in a security company, a private security company to provide security with the mall. Okay. I just think what we -- what want -- andl think spoke to Mr. Moe's owner and everybody else, is we want a fair treatment. We want to be able to compete in the business ring with South Miami, with our neighbors in Coconut Grove, in Brickell Avenue. You know, Brickell Village just opened up with a new zoning. They're open 'til 5 a.m.; same kind of venue. It just -- what it does is really puts us out of business. Coming out of a year that's been the worst year me, as an owner or a manager, has ever had, you know. The economics of last year, we barely survived. Having this to put on us now would basically just run everybody out of business. And my 57 employees, Mr. Moe's 40, Flavour's 40; before you know it, you got 2, 300 people out of business, and maybe the owners, again, can survive. Maybe the owners have enough money to say, you know what? I'll just move to South Miami. I'll move my business to downtown, to the Design District. But unfortunately, the employees, the managers, and all that, they're not. And maybe what you guys can do -- again, not only grandfather them, you know, the business that have been there. There are crime statistics -- and I'm sure you have yours, but I just think, to be honest with you, maybe they give you the wrong information. I just don't think -- Commissioner Sarnoff Well, I'm looking at yours -- City ofMiami Page 64 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Shahnazi: Okay. Commissioner Sarnoff -- andl see 22 calls, you know, assault and batteries, arrests; you know, disturbances, robberies. Mr. Shahnazi: IfI may, can you tell me the date, from what date to what date you're telling me? Commissioner Sarnoff Yes, sir. June 2006 to June 2007. Mr. Shahnazi: If -- I'm not -- I don't have that copy of that report. I can just tell you that I, myself, andl have -- I can prove you the invoice that I hire an outside company to do it. I was never given that report from anybody from the City ofMiami Police Department, including the NET (Neighborhood Enhancement Team) officer that's sitting right here. I've requested it in writing twice. I never got those [sic] information. But I'm not telling you it didn't happen. I have a club that has a legal capacity of a thousand people, a restaurant/bar. From the City, a thousand people, that's open four nights a week every night. Okay, so ifI had 22 incidents, having three police officers that work outside of my door every single night, unfortunately, you know what? That's their job. I pay them that if there's an incident, they report it. I'm in a mall. I'm not looking to hide anything under the carpet. If the person says my purse got stolen or the person says I had one too much to drink; you know, they get in an argument in the mall, these incidents happen. I am not telling you that it doesn't happen in a club that has that much capacity or it's never happened anywhere. In Miami Beach, it happens. I just think there's a better way to control the crime. I think if it's the crime is an issue, you could dedicate -- we offer before have the clubs in the area -- the restaurants and the clubs that open late to put money into a fund that goes, again, to extra officers in the area. I know when I live here -- again, I've worked in the area for 20 years. Back just eight, nine years ago, there were eight units that used to work just Coconut Grove. Right now there are only four units that work Coconut Grove entire area, up to Flagler, to downtown, four. So obviously, when there's not a police presence, the crime will go up. You know, we are the police presence. I think between all the clubs here, you see more -- Commissioner Sarnoff Wait. You know -- Mr. Shahnazi: -- police officers working for us. Commissioner Sarnoff -- Mr. Shahnazi, I went to your establishment back in, I think it was October, andl went about 4: 30 at night. And in order to get into your establishment, the first thing you have to do is you have to get patted down. Mr. Shahnazi: Yes. Commissioner Sarnoff And you keep a box right there, and there I got to see everybody's chains, knives, you just -- Mr. Shahnazi: Well -- Commissioner Sarnoff -- they just dropped them in the box right there. Mr. Shahnazi: -- I would argue about the knife, and ifI right there answered you -- Commissioner Sarnoff I know what I saw. And matter of fact, my sergeant of [sic] arms was there. Mr. Shahnazi: I was there that night. I just didn't want to say come hello to be honest with you City ofMiami Page 65 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 because I have a lobbyist that work with you, andl didn't want to come up. But the reason why I did that because two months prior to that, we had a stabbing in my establishment. There was a gang member looking for a witness. It could have happened in Cheesecake; it could have happened in movie theater. The man -- if it wasn't because of my security staff that they saw him sneaking it in his shoes, okay, and he was looking for that individual, followed him (UNINTELLIGIBLE) Miami (UNINTET,T IGIBLE) -- that's according to Miami Herald report -- and finally found in the club in a vulnerable stage [sic]. Ever since that incident, we took the extra step to pat every single person down. We no longer just go with the trust. Okay. We realize that we're living in a sensitive time now, so we took that extra step. I honestly think we should be not -- I'm not looking for a pat in [sic] the back or a cheer, but I think, as a responsible businessman, I took the extra step to say no matter who it is, you can't trust it. If it happened to us once, it could happen again. So we do take extra step. I don't do it for Apple Martini. I think you happened to go to both floors, and if you went into Apple Martini, you saw the average age of Apple Martini is over 40 years old. We play '70s, '80s disco, which kind of like -- the people that go there are not the kind that we'd pat down, you know. And we're not doing selective patting, but since we do play hip -hop music -- we play Latin music upstairs -- and the clientele tend to be from to 21 to 25 and that incident happened in Visions [sic], yeah, we take the extra step to do so. Andl checked with my off -duty coordinator; I checked with the police officers, and they felt more comfortable. You know what? Since this happened, we suggest for you to take an extra step, and we did. That, again, came at a cost of almost $400 a night for people to just do that and nothing else. You know, so I'm not saying, you know, the crime cannot be done more. I just think the study should be done -- I think there should be a meeting -- if this is your, you know, obviously, proposal, to meet with the club owners. This is the first time we speak and that I can say for all the other four club owners, restaurant owners. To say, listen, this is -- if the crime you want to get rid of what is it the community can do together? You know, we talking about -- you said earlier job is the most important thing right now. It is. We're talking about 250 jobs, so let's get together and come up with a plan. I have no problem spending more money when it comes to security. I live in Coconut Grove. I've lived there all my life; not planning to move. I'm not planning to go anywhere. And I signed an 11 year lease with that kind of $36, 000 rent because I bought an establishment that already was open 'til 5, that work there. IfI knew it was going to be 3 a.m., I would have never paid $540, 000 for that business. I would have take my money to South Beach. I would have take my money to South Miami. I won't take any more time. Commissioner Sarnoff Did you also own Club Life? Mr. Shahnazi: In Coconut Grove? Commissioner Sarnoff Yeah. Mr. Shahnazi: No, ma'am -- no, sir. Commissioner Sarnoff You didn't own that? Mr. Shahnazi: No, sir. Commissioner Sarnoff Okay. Mr. Shahnazi: That's the biggest misperception [sic] here, and that came, again, through one of the City officers. The club community in Coconut Grove is very close, and you know, we -- I worked with the -- one of the owners at Oxygen when we were trying to promote Coconut Grove as one; put our money in the same fund; bring people to Coconut Grove so we can share. But no, I was never owner of Club Life. I think Mr. Terminello can testify because he was the attorney for the other owners of Club Life, which I think they own Club Space in downtown. They are the owners. They're the one who own the building, actually. They owned 609 prior to City ofMiami Page 66 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 that, so not me. Commissioner Sarnoff That's the one where we had to remove the staircase just to close them down, right? Mr. Shahnazi: Yes. Commissioner Sarnoff Yeah. Mr. Shahnazi: Yes. Commissioner Sarnoff Okay. Mr. Shahnazi: The staircase. I think the building -- and that's between the building owners, but you know, to be honest with you, since, I think -- that's the next case, when I come up for you, the person appealing me was mostly at Club Life -- against Club Life or Club Quench. Those establishments are gone. Quench -- you know, we're not talking about that. I'm talking about if you abiding by the law, if you pay your bills, if you do every single thing and you're doing your best effort forward -- I'm not telling you it's a perfect world, but there's not been a single time -- I'm -- personally met with our NET officer and now -- Haydee, the -- Commissioner Sarnoff Tom Braga? Mr. Shahnazi: -- head of the NET office -- yes -- and he could -- Commissioner Sarnoff Would you come up? Mr. Shahnazi: -- test fy when he comes up himself that when I met him at Starbuck [sic], I said tell me if I'm -- if what I'm doing is fair, okay, andl will quote him. And he can more than glad to say ifI didn't say so. He said, you know, what you're doing is more than anybody else would do. Okay, andl saidl have never been offered one option that I've said no. I want to save my money. Yeah. I will do whatever it takes to save my business. It's my investment, but beyond all that, that perception, you know, I mean, again, I think that's easy to find out. You know, there's illegal liquor licenses involved. Commissioner Sarnoff Can you just state your name for the record. Thomas Braga: Yeah. Tom Braga, City ofMiami Police Department, Neighborhood -- Commissioner Sarnoff Have you -- Mr. Braga: -- Resource Officer for Coconut Grove. Commissioner Sarnoff -- and have you heard what's been said here today with regard to the closings and whatnot? Mr. Braga: Yes, sir. I've been here the entire time. Commissioner Sarnoff And you've seen this -- Mr. Braga: Been here all day. Commissioner Sarnoff -- arrest report? Have you seen this before? Mr. Braga: I have -- I don't know if I've seen that particular one, though. I don't know ifI know City ofMiami Page 67 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 exactly the document you're referring to. Commissioner Sarnoff Was there a period of time that Visions [sic] was closed? Mr. Braga: I don't know if there was a period of time they were closed. I know that there was a very short period of time where -- Commissioner Sarnoff They didn't op -- Mr. Braga: -- I don't believe that they were serving until 5. I think it was less than a month's period of time. Commissioner Sarnoff And did that change the calls for service? Mr. Braga: It did significantly enough that when they went to their hearing -- and again, it may not be, as I said, when the hearing was addressed through Haydee Wheeler and the NET office, it may not have been the specific reason because, in that particular month, the month in question where we had the significant drop, it's also the same month where UM (University ofMiami) cuts the majority of its classes and a lot of kids go home, so the influx to the Grove is not quite as an impact as it might normally be. And there could have been other factors, but since there had been some sort of licensing problem -- and I'm sure -- or I think was worked out with Zoning -- and there was a period of time where they were not serving until 5. I asked, since it was on -- for a hearing, if we could just look at it for a couple of months and see if there was a significant drop because CocoWalk is, as Mayfair is, really the focal points of the Grove, and that's not specifically because of Vision or Apple Martini. It's just because that's the place to go when you come to Coconut Grove. It gets more attention than Commodore Plaza. Although, you know, Moe's tries and, at one time, Feelings Cafe fried; Greenstreet puts in a good effort, and Cefalo's now, but CocoWalk and Mayfair are still the focal points -- Streets of Mayfair -- of Coconut Grove. Andl thought it might be good to do an analysis, but for whatever reason, the Zoning Board decided that they didn't want to take that step, and they went ahead and granted it, and the analysis wasn't able to be done. Mr. Shahnazi: Commissioner Sarnoff, ifI may answer that. We never -- the City -- maybe the NET Office and everyone is -- they thought that we closed at 3 a.m. As a matter of fact, we never closed at 3 a.m. Mr. Braga: It's not closed. It stopped serving. Mr. Shahnazi: From period of June --from May 'til July of last year, we stopped serving alcohol at 3 a.m., and that's because we noticed that our -- when I bought the place in '04, I bought, again, as I said earlier, existing place 'til 5 a.m. I was under the impression that the license itself was always on it and transferred. I applied and paid my fee back in 2004, my trans -- Commissioner Sarnoff No. I'm not concerned about that. Mr. Shahnazi: But ifI may -- Commissioner Sarnoff But you just said something. Mr. Shahnazi: But -- Commissioner Sarnoff You said you were closed from -- Mr. Shahnazi: -- ifI -- City ofMiami Page 68 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff -- May -- Mr. Shahnazi: From May to July, we stopped serving alcohol at 3 a.m. We still opened 'til -- Commissioner Sarnoff Would -- Mr. Shahnazi: -- 5 a.m. Commissioner Sarnoff Right. -- you be willing to show us the differential -- Mr. Shahnazi: Of course. Commissioner Sarnoff -- of what you didn't earn -- Mr. Shahnazi: I will. Commissioner Sarnoff -- versus what you earned? Mr. Shahnazi: No problem. Commissioner Sarnoff Okay. Mr. Shahnazi: I'll be more than glad to do so. But if I'm -- answer back -- when the report came that the crime had gone down, okay, again, just by going simple to the main Police Department office, okay, the crime always comes down during that year, as the officer just said it. Every year during that time, from May and June, if you look back up to five years, it comes down every year. Maybe it's due to the University ofMiami, maybe it's due to the fact that it's summertime; all the businesses are slow. We really suffer our worst month [sic] through May, June, July. Having said all that, that's why it went down, andl -- as I said before, there's no direct anything that just because I didn't serve -- I didn't close. There was still the same amount of people. I just had to spend more money aggressively, and I'm still paying the effect of being closed for those three months because everybody that I was having, they start walking out. I think it's worth it to remember that even though we're saying nightclubs, we're not open on Monday, Tuesday, Wednesdays as a restaurant. We're making our money basically four nights, okay, whatever revenue we make. And people in this town, unfortunately, we're making very limited sales on our restaurant part. The bar part, the nightclub part of it, they don't come out of the house at 11, unfortunately. They coming out of the house at 12: 30, 1 o'clock, so we really taking away from 3 to 4, if you're taking a lot more than just percentages. That is a prime hour, from 3 to 4 in the morning, okay, and that is the reason why I think it's -- you know, you would basically, in a matter of six months, you know, run everybody out of business, even if they don't have to meet certain amount of sales. I guarantee you they won't be able to make profits, and we're all in this business -- I'm not going to lie to you -- to make money, you know, reasonable money. So you know, I think that police -- I think -- I already said it earlier. I mean, if you guys can do a study on it, if you guys can ask the club owners that we volunteered ourself [sic] to put in money, which I think is more than the City would ever be able to do. We were willing to put in almost $2, 000 a week to go into a fund for off -duty police officer that doesn't work for us; works the streets of that area, the area that you're talking about, patrolling the streets for the residents, for the citizens. They don't work for any -- directly to anybody else. It's three police officers per night, which is more than this City has had in the last eight years, and at a cost of a hundred thousand dollars to us, okay, which I think, with this tight budget of the City with hiring extra officers and everybody else, this would go to them. And let's not mention -- I know this -- the off -duty police officer is a sensitive issue, but I don't think they'll be working off -duty 'til 5 o'clock in the morning on their nights off if they didn't need the income. And if each club is paying 50 to $60, 000, that is extra almost ten to twelve officers extra income. Thank you for your time. City ofMiami Page 69 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: All right. Sir. Alyn Pruett: Good afternoon. Alyn Pruett, 2901 South Bayshore Drive. I'm here this afternoon speaking on behalf of the Cocoanut Grove Village Council to inform the Commission and the public of the Council's position on the 5 a.m. closings. The Council's position was adopted after hearing the concerns of both business owners and residents, and was adopted by motions passed at our meeting on October 16, 2007. The Council's position has three parts. First is that those businesses that have legally proper 5 a.m. closings should be allowed to keep those closings. In other words, if they have one that's legally obtained, should be allowed to keep it. Second part is that those rights should not be transferable. In other words, if a business has a right to stay open 'til 5 a.m., that business closes, goes out of business, then that right to the 5 a.m. closing should be extinguished when that business terminates its lease or leaves or goes out of business. Third part is that the Council, reflecting the opinions of the residents and businesses of the Grove, would like not to see any additional 5 a.m. special exceptions granted beyond what we have today. Yes, sir? Chair Sanchez: No, no. I -- Mr. Pruett: Any questions? Is that clear? I -- Chair Sanchez: It's -- Mr. Pruett: -- want to -- Chair Sanchez: -- crystal clear. Mr. Pruett: -- make it clear. Okay. Thank you very much. Chair Sanchez: All right. Thank you. Katherine Komis: Commissioners, my name is Katherine Komis. I live at 3304 Virginia Street, and I'm going to speak more specifically on the next item on the agenda, which is the appeal for the Visions [sic] zoning decision. I just want to say that I'm very much in favor of Commissioner Sarnoffs proposal here, andl want to say, in response to some of the things that Mr. Shahnazi has said -- first of all, I live right next door to what was the Club Life in Coconut Grove, and Mr. Shahnazi introduced himself to me as the owner of Club Life. Andl have several articles from newspapers where he is talked about in the paper as the owner of the Club Life that then moved downtown. Club Life next door to me where I live in the Grove was one of the most difficult situations that I've personally ever lived through. I won't go into details. I'm not here to talk about Mr. Shahnazi, but I'm just -- I'm not sure I understand why he would introduce himself to me as the owner of Club Life in the Grove and be listed in the paper as the owner of Club Life, but not be the -- you know, I'm just confused about that. But I'm going to speak more directly about the issues relating to that in the next item, but I just wanted to say that I'm very much in favor of your proposal to eliminate the 5 a.m. situation in the Grove. I live -- I'm a resident in the Center Grove. And while I don't have the statistics, I certainly have the personal experience of what the 5 a.m. clubs -- some of the dilemmas that are -- for the residents who live there. But again, I'm going to speak more specifically in the next item. Thank you. Commissioner Gonzalez: All right. Anyone else from the public? Mr. Terminello: Can I just take a moment to clam something and make -- Commissioner Gonzalez: Yes. Go ahead. City ofMiami Page 70 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Terminello: -- a suggestion? Andl don't want what Mr. Shahnazi said to be over our heads. What he suggested -- andl think it may be the solution -- if crime is the issue and the failure to be able to staff the police -- enough police officers to deal with the crowds that come in and out or the parking issues, then instead of rolling back the hours, there's nothing that stops this Commission from suggesting a condition to future special exceptions, and I'm sure somehow it would be worked out with the existing special exceptions to work into a fund that would be used for this purpose. I mean, if crime is the problem, let's deal with the crime issue. If noise -- andl don't know what we're going to hear from some of the other -- but if noise is the problem, ban outdoor speakers. City ofMiami permits outdoor speakers at CocoWalk. You know, that's why there were 15 outdoor speakers in front of the place that just closed. Deal with what the issue is. If the issue is truly crime, then let's deal with the crime issue. Let's have a fund -- you have a parking fund. You can have a fund analogous to that; tie it to a special exception. There are ways to deal with this issue than putting these places out of business. Thank you. Oh, and I've tried Mr. -- Commissioner Sarnoff, with all due respect, to try and establish a dialogue with you to try to discuss some of these issues, but was turned back at every turn. Andl think that rather than pass this on first reading today, I think that there are things that we can talk about. There are things that even some of the -- if the Village Council, who I thought was going to be our worst proponent here today, has some very viable ideas in their passage; grandfather them in, add a special exception to come up with a fund for police. Ban outdoor speakers, if that's what your problem is in CocoWalk. There are ways to deal with this. City ofMiami Beach deals with -- they have 5 a.m., and they've had 5 a.m. for years. Every rollback effort has always failed. City of South Miami, your neighbors right next door, have a very successful 5 a.m. closing. These problems can be dealt with, andl would urge you to defer this. Let it go to first reading next time. Give us an opportunity to meet with you. I could sit with you with the four affected nightclubs, and we can work this out. But don't strangle these people. Chair Sanchez: What -- out of curiosity, what are the -- how many nightclubs? What are we looking at? Give me some names. Mr. Terminello: Well, if you're including places like Mr. Moe's -- if you don't see fit to exempt bona fide restaurants -- andl -- Chair Sanchez: All right. Mr. Terminello: -- can't imagine that you won't -- but if you don't see fit to a bone -- we're talking about Mr. Moe's. We're talking about Oxygen. We're talking about Flavour. We're talking about Visions [sic]. The other place is out of business already. What's the place that went out of business? Chair Sanchez: Well, Martini Bar, right? Martini -- Mr. Terminello: No. Those are two. Just so you know, Coyote -- Commissioner Sarnoff Coyote Ugly. Mr. Terminello: -- is already -- they're already out of business. Visions [sic] and Martini Bar are the same place. They share two floors. It's the same owner, Mr. Shahnazi, same CU (Certificate of Use) from the City ofMiami, same alcoholic beverage license. They have two identities, but it's the same business, so if you include those as two businesses, you've got the five major players right there. Coyote Ugly already packed up and left, andl can't tell you what their investment was in that space there. And there -- that's -- you're going to see that happen again and again and again if this ordinance passes. So I would urge Commissioner Sarnoff to allow us the opportunity to work this out before, you know, you do this death kill to us. Chair Sanchez: All right. How 'bout [sic] the residents that want to speak on this issue? Yes. City ofMiami Page 71 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Sue McConnell: I'm sorry we don't have a full Commission here again today. One of -- Sue McConnell, 3090 Virginia Street, Coconut Grove. One of my concerns is that I keep hearing the defense that they have speakers inside and they have security guards inside, andl think that's all well and good. We're not concerned with that. What we are concerned with is what happens when the people leave the premises. They come out into the streets. They litter the streets. They break into cars. They get into their cars. They drive inebriated. They drive their cars with their boom boxes blasting. I live on Virginia Street. I hear it. The whole house reverberates. These are the kind of people that carry weapons with them. We know that. It's a certain element of people that go to these clubs, and l just wanted to bring that to your attention. It's not what goes on in the clubs. It's what goes on once they leave the clubs. Thank you. Chair Sanchez: Thank you. Anyone else? Mr. Terminello: Just one last point. You know that Life is gone forever; can't go back there again as a nightclub. Chair Sanchez: Not life. Life is never gone forever. Mr. Terminello: Well, the nightclub Life is gone forever. The other space where Quench was, that was an irritant because somebody decided to put a nightclub underneath a residential -- in a residential condo building; gone, okay. They had a public -- they had an application for a public hearing; it's been withdrawn. I can't imagine that the Zoning Board in this environment would grant a special exception today to a place in the middle of a residential area like that. We're dealing with a core number of clubs. And again, we have a short Commission, which is another reason why a deferral might be in order. Give us an opportunity to come to you. We can work this out, and it's not -- it's -- we can work this out, and we urge you to give us that opportunity to do so. Second reading is not going to be the right place to debate these items. Chair Sanchez: Yes, ma'am. Ms. Lange: Can I make another comment -- Chair Sanchez: Come on. Ms. Lange: -- since this man's been allowed to speak so often and so much? Chair Sanchez: You just want to catch up. Ms. Lange: I heard something that -- I heard that -- him say that he wasn't part of Life. She has a document showing -- Chair Sanchez: Let me interrupt you for a minute. Your name and address for the record. Ms. Lange: Barbara Lange. I already gave my address. I have to do it again? Chair Sanchez: No, not really. Ms. Lange: Okay. Chair Sanchez: Just your name. Ms. Lange: I'm going to be short. I heard that he had -- he was open -- Visions [sic], whatever the place is, Martini was open 'til 5 a.m. when he only had a 3 a.m. license. Isn't that true? I mean, I believe the police would know. City ofMiami Page 72 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff I think the point is you can be open. You just cannot be selling alcohol. You can't be -- you can't even hand out alcohol. Ms. Lange: Okay. Commissioner Sarnoff So hopefully -- Ms. Lange: Were they handing out alcohol? Commissioner Sarnoff -- he was abiding -- Well, we don't know, but he'll tell us that he wasn't - - by his rules and regs. (regulations) and he was just open feeding people, but not serving them alcohol. Ms. Lange: Right. Thank you. Mr. Terminello: I would like to clarify one thing. In this industry -- and I've been in this industry for 30 years -- when you are a promoter or somebody like that, you have to tell people that you are the guy that's in charge or the owner. This is just part of the industry. You -- promoters get no respect if they tell somebody they're a promoter. I just wanted to clam that. But Life, that venue is gone forever, okay, and so are some of the other ones. Commissioner Sarnoff You -- what you're telling us is don't let it impinge upon your client's credibility the fact that he told people he was an owner when he wasn't. Mr. Terminello: Well, I don't know that he did that. I know that that woman's saying that she [sic] did, but the point is that every promoter and doorperson on Miami Beach does the same. Chair Sanchez: All right. Any -- last speaker. Oh, you want to -- Mr. Shahnazi: IfI -- Chair Sanchez: -- speak, sir? Len Scinto: Yeah, from the -- Chair Sanchez: Okay. Mr. Shahnazi: IfI may -- Mr. Scinto: -- residents. Mr. Shahnazi: -- against my attorney's advice. Chair Sanchez: Well. Mr. Shahnazi: I'd like to answer this Club Life thing. Chair Sanchez: That's -- listen, sir, with all due respect -- Mr. Shahnazi: I'm sorry. Chair Sanchez: -- that's -- Mr. Shahnazi: Shawn Shahnazi. City ofMiami Page 73 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: And that -- be the last statement we're going to listen to in the public -- Mr. Shahnazi: Last statement. Commissioner Sarnoff Never don't take your -- always take your lawyer's advice. Always. Shawn, let me tell you something. He's giving you good advice. Mr. Shahnazi: Commissioner Sarnoff, I have my life invested here, and I've been paying for these attorney fees for six months. I've been here four times already, and I've been delayed four times. Club Life, first of all -- Commissioner Sarnoff And he's cheap too. Mr. Shahnazi: -- is not part of this issue. Club Life, as a club, has been closed for three years -- Commissioner Sarnoff Right. Mr. Shahnazi: -- so I don't understand why some of the neighbors still have issue with something that's been gone, that it doesn't affect their life anymore, if that was the issue. As for Club Life, the articles that think Ms. Komis andl have had few conversation before, I made it very clear that I've never been an owner of Club Life in Coconut Grove, as I (UNINTELLIGIBLE) preferably. That's -- there are leases, there are liquor licenses that could prove that, andl -- that's not the case. The article is regarding when Club Life closed in Coconut Grove -- as I said earlier, I own a party club in downtown Miami, and yes, we promote it and moved -- took the party from Coconut Grove to downtown entertainment district, so the articles refer more to 11 th Street location that the name of the party is called Life, and I just don't think that issue even has any bearing over what we're talking about for a club that's been closed for three years. Thank you. Chair Sanchez: Thank you. All right. The public -- sir. Mr. Scinto: Yeah. I'm the public. Chair Sanchez: Anyone else that wants to address the Commission, please step up. All right. Mr. Scinto: Hi. My name is Len Scinto. I live at 3091 Bird Avenue, in Coconut Grove. And I'm actually here to support some kind of compromise or version of allowing 5 a.m. bars because I think the Grove is a diverse community, and it used to be more diverse when we had a lot of lower -cost rentals. A lot of those have been taken down, bought out, put up, you know, duplex residences, but -- so we had a shift in demographics away from the -- you know, away from a lot of renters, but there's still a lot of renters in the neighborhood, a lot of younger people, a lot of people who still have an active nightlife, andl don't think that they're represented at a lot of our residents' meetings. I'm on the Village's Center Grove Board, and we don't get a lot of young people there, but talk to them in the street, and they're in favor of 5 a.m. bars. We have a lot of competition now with Mary Brickell Village and lots of other places, and if we want to keep people still coming down to the Grove to recreate and then, you know, hopefully just get used to coming to the Grove, the whole South Miami Avenue that's all building up there, you know, this is -- okay, but you know, we know that no community can be all things to all people, but I think the Grove should have something for everyone. So we don't need a lot of 5 a.m. bars; we need a couple of 5 a.m. bars. Andl thinkl would put the onus on the bar owners if -- you know, you want to encourage places like Cristabelle's, Nikki -- Nikki Coconut Grove is coming in, right? It'd be great to have a nice late -night nightclub like that there. So I think that, you know, maybe we would -- we'd have ways to put the onus and responsibility on the bar owners that currently have the 5 a.m. permits. If they have problems, then they don't get a renewal of their license, City ofMiami Page 74 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 something like that. But I still think that we should we have some diversity in our community, and 5 a.m. bars are part of that kind of nightlife diversity. Thanks. Commissioner Sarnoff You know, Len, stay there for a sec 'cause let me tell you my experience with Nikki when they had their first grand opening, andl got a phone call at 12 o'clock at night from Carlos Lopez-Cantera, our representative, and he put his cell phone outside of his balcony and said "Commissioner Sarnoff, you suck," and then let me listen to the music. So I just wanted you to know there are people out there that don't share what you have to say in terms of timing and late -night entertainment. Mr. Scinto: Okay, but there are some who do. Commissioner Sarnoff It's true, but I think -- Chair Sanchez: That's -- Commissioner Sarnoff -- the problem is we have to -- we've got to find a balance, andl think 3 o'clock is that balance. Chair Sanchez: All right. That's the beauty of democracy. Yes, ma'am. Phyllis Gross: Hi. My name is Phyllis Gross. I've been to many of these meetings talking about the late night in the Grove. In fact, one of the Commissioners did mention that if you choose to live in the Grove, you should have known better because it's going to be late night, which I'm living in the Grove now 35 years. When I moved there, it was never late night, and it's very disturbing to me, and we can hear all the noise. I live in a high-rise on the 13th floor on South Bayshore Drive, and the noise does wake me up at 5 o'clock in the morning. And the second thing is I'm very disturbed to hear that people have to be patted down before going into a bar to take away their weapons. It's very frightening to me, andl do hope that we can do something about it. Thank you. Chair Sanchez: All right. Anyone else? Commissioner Gonzalez: All right. Chair Sanchez: If not, that concludes -- Commissioner Gonzalez: We have beat the horse to death. Commissioner Sanchez: -- the public meeting, coming back to the Commission on this. Commissioner Sarnoff. Commissioner Sarnoff Well, you all know me, and you know that I will meet with them, but I do -- this affects only the Grove. I kept it limited to the Grove. I would ask you to pass this on first reading. I will sit down, I will meet with them. I will see what they come up with. I will be more than glad to share it at second reading and see if there's a compromise that can be worked out. But I'm telling you that the right thing to do in Coconut Grove is a 3 o'clock closure. I'm simply astounded that people think they need to go out past 3 -- you know, we don't ask them to go home at 3. We just ask them to stop drinking at 3 so that by the time they're driving at 5, at least two drinks -- Commissioner Gonzalez: It'll be a little bit better. Commissioner Sarnoff Right -- have come out of them, and maybe they're at a blood alcohol level of something less. And you know something interesting. We put a traffic circle -- they call City ofMiami Page 75 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 it the "Sarnoff Circle," but I like to call it the "Sanchez Circle" 'cause I copied you -- right by my house. First week it's up, somebody went right through it 4: 30, 5 in the morning. Took out their car, took out everything. Do you think he wasn't drunk? Do you think he was --? Chair Sanchez: Maybe he was just upset at the circle. Commissioner Sarnoff It may have been -- well, you're right. He might have been upset about the -- Chair Sanchez: Maybe he was upset at the circle. Commissioner Gonzalez: Maybe he thought it was a roulette. Commissioner Sarnoff Exactly. Chair Sanchez: All right. Listen, so there's a motion on first reading. Is there a second? Commissioner Gonzalez: There was a second. I seconded. Chair Sanchez: Okay. For the record, it's been second by Commissioner Gonzalez. I have some concerns with it. I think it could be tweaked out. I do take -- the crime and noise is -- disrupts the quality of life in the Grove, but I think that the businesses are willing to step up and -- they know they're a problem, they also want to be a solution. Now let me tell you something about the Coconut Grove. I remember the Grove when I was growing up, and it was the place to come. Andl also remember the time you used to come to the Grove and there were so many police officers, and they would stop you for having loud music, they would stop you because your tints were too dark, they would stop you because you had a tail light out. So there was some authority out there that really had some control. I know the police aren't out there, but I can guarantee you that the more police officers you put out on the street, will definitely address the issue both of crime and the noise. So I think, overall, Commissioner, you working with the residents, the residents working with the buildings -- because also, you compare the Grove back then to today and you're starting to see a lot of empty businesses in the Grove and it's really affecting the economy of the Grove. However, when it all boils down to -- between crime and noise and the residents, I think the residents are going to win. You know that better than I do. All right. Ladies and gentlemen, there's a motion and a second. The item has been discussed, on first reading. All in fav -- Oh, it's an ordinance on first reading. Read the ordinance into the record, followed by a roll call. The Ordinance was read by title into the public record by Assistant City Attorney Maria J. Chiaro. Chair Sanchez: Roll call. Priscilla A. Thompson (City Clerk): Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been passed on first reading, 4/0. City ofMiami Page 76 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 RE.1 07-01538 Department of Police RE.2 07-01554 RESOLUTIONS RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION AUTHORIZING A CONTRIBUTION TO THE NATIONAL LAW ENFORCEMENT OFFICERS MEMORIAL FUND , AS FINANCIAL SUPPORT FOR PROMOTING THE FIRST NATIONAL LAW ENFORCEMENT MUSEUM, IN AN AMOUNT NOT TO EXCEED $20,000; ALLOCATING FUNDS FROM THE LAW ENFORCEMENT TRUST FUND, PROJECT NO. 19-690001, ACCOUNT CODE NO. 12500.191602.883000.0000, WITH SUCH EXPENDITURES HAVING BEEN CERTIFIED BY THE CHIEF OF POLICE AS COMPLYING WITH SECTION 932.7055, FLORIDA STATUTES, AS AMENDED. 07-01538 Legislation.pdf 07-01538 Summary Form.pdf 07-01538 Letter.pdf 07-01538 Certification.pdf 07-01538 Letter2.pdf 07-01538 Affidavit.pdf 07-01538-Summary Fact Sheet.pdf Motion by Commissioner Gonzalez, seconded by Vice Chair Spence -Jones, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 5 - Commissioner Gonzalez, Sarnoff, Sanchez, Regalado and Spence -Jones Liberty City Community Revitalization Trust R-08-0050 Chair Sanchez: Let's go to RE.1. RE.1 is a resolution, and that's the Police Department. Anyone here from the Police Department? Chief this is very -- make it very brief. Deputy Chief Frank Fernandez: Good afternoon, Commissioners. RE.1 -- Frank Fernandez, deputy chief Miami Police -- is a resolution. It's a contribution to the National Law Enforcement Officer's Memorial Fund as financial support for promoting the first national law enforcement museum, in the amount of $20, 000. Chair Sanchez: All right. Is there a motion? Commissioner Gonzalez: I move it. Chair Sanchez: There's a motion by Commissioner Gonzalez, second by the Chair [sic], Michelle Spence -Jones. The item before -- or being discussed. Anyone from the public wishing to address this item, please step forward and be recognized. Seeing none, hearing none, the public hearing is closed; coming back to the Commission. No discussion on the item. It's a resolution. All in favor, say "aye." The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay." Motion carries. RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING THE LIBERTY CITY COMMUNITY REVITALIZATION TRUSTS ("TRUST'S") FIVE PERCENT SALARY INCREASE FOR ELAINE BLACK, PRESIDENT/CHIEF City ofMiami Page 77 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 EXECUTIVE OFFICER OF THE TRUST EFFECTIVE IMMEDIATELY, WITH OTHER TERMS AND CONDITIONS OF EMPLOYMENT AGREED UPON BY THE TRUST. 07-01554 Legislation.pdf 07-01554 Summary Form.pdf 07-01554 Resolution.pdf WITHDRAWN [For minutes related to item RE.2, see the Order of the Day.] RE.3 08-00031 RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION AUTHORIZING THE CITY MANAGER TO WAIVE PARK FEES AND TO PROVIDE PODIUM AND POLICE SERVICES ASSOCIATED WITH THE JOSE MARTI PARADE BEING HELD JANUARY 27, 2008, AT JOSE MARTI PARK, LOCATED AT 351 SOUTHWEST 4 STREET, MIAMI, FLORIDA. 08-00031 Legislation.pdf SPONSORS:CHAIRMAN SANCHEZ COMMISSIONER GONZALEZ Motion by Commissioner Gonzalez, seconded by Commissioner Sarnoff, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 5 - Commissioner Gonzalez, Sarnoff, Sanchez, Regalado and Spence -Jones R-08-0051 Chair Sanchez: RE.2 has been withdrawn. RE.3. RE.3 is a resolution. It's a resolution of the City ofMiami Commission authorizing the City ofMiami to waive -- Commissioner Gonzalez: I'll move RE. 3. Chair Sanchez: -- park fees and to provide podium and police services associated -- Commissioner Sarnoff Second. Chair Sanchez: -- with the Jose Marti Parade, being held January 27, 208 [sic], at Jose Marti Park, located at 351 Southwest 4th Street. There's a motion by -- Vice Chair Spence -Jones: Second. Chair Sanchez: -- Commissioner Gonzalez, second by Commissioner Sarnoff. The item is under discussion. Vice Chair Spence -Jones: I -- No. I just wanted to ask one -- I thought it was -- I was ask -- going to ask a question about which parade it was, but I'm clear on -- that it's Jose -- Chair Sanchez: That's the Jose Marti -- Vice Chair Spence -Jones: This the same one you do every year, though, right? Chair Sanchez: Yes. City ofMiami Page 78 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Vice Chair Spence -Jones: Is this -- let me ask you, is this -- this might be an Administration question. Is this a part of Larry, all of the special events and activities we have every year? Because it should be automatically a part of all of the expenses associated with the parade. Mr. Hernandez: Commissioner, I don't think it is. No, it's not. Vice Chair Spence -Jones: Because it's like an annual event we do. It's a signature event that happens within the City, so -- Mr. Hernandez: I would say it's a smaller event. Vice Chair Spence -Jones: Okay. Chair Sanchez: All right. This parade has been held here -- Vice Chair Spence -Jones: I know. Chair Sanchez: -- for the past 30-some years. It's celebrating the 155th anniversary of Jose Marti's birth. Vice Chair Spence -Jones: It's a signature event -- Chair Sanchez: Yes, it's -- Vice Chair Spence -Jones: -- though. That's my point. Chair Sanchez: -- a signature event. All right. There's a motion and a second. No discussion on the item. Anyone from the public wishing to address this item, please step forward and be recognized. Seeing none, hearing none, the public hearing is closed. It's a resolution. All in favor, say "aye." The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay." Motion carries, Madam Clerk. RE.4 08-00033 RESOLUTION Department of A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH Finance ATTACHMENT(S), AUTHORIZING AN INCREASE IN THE PROFESSIONAL SERVICES AGREEMENT ("PSA") WITH MCGLADREY & PULLEN, LLP, PURSUANT TO RESOLUTION NO. 07-0543, ADOPTED SEPTEMBER 27, 2007, FOR ADDITIONAL EXTERNAL AUDITING SERVICES, IN AN AMOUNT NOT TO EXCEED $50,000, FOR THE FIRST YEAR OF THE PSA, FROM AN AMOUNT NOT TO EXCEED $380,000 TO AN AMOUNT NOT TO EXCEED $430,000, THEREBY INCREASING THE TOTAL CONTRACT AMOUNT FROM $1,180,000 TO $1,230,000; AUTHORIZING THE CITY MANAGER TO AMEND THE PSA FOR ADDITIONAL SERVICES REQUIRED BY THE CITY OF MIAMI ("CITY") WITHOUT FURTHER CITY COMMISSION ACTION IN THE AMOUNT NOT TO EXCEED 10% OF THE TOTAL ANNUAL AMOUNT, FOR EACH OF THE RESPECTIVE YEARS OR IN THE AGGREGATE, WHICHEVER COMES FIRST, PURSUANT TO SAID RESOLUTION; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 1 TO THE PSA City ofMiami Page 79 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 FOR EXTERNAL AUDITING SERVICES, IN SUBSTANTIALLY THE ATTACHED FORM, FOR SAID PURPOSE, ALLOCATING FUNDS FROM THE DEPARTMENT OF FINANCE GENERAL OPERATING BUDGET, ACCOUNT CODE NO. 00001.161000.532000, FOR SAID INCREASE. 08-00033 Legislation.pdf 08-00033 Exhibit.pdf 08-00033 Summary Form.pdf 08-00033 Text File Report.pdf 08-00033 Professional Services Agreement.pdf 08-00033 Attachment A.pdf 08-00033 Attachment B.pdf 08-00033 Attachment C.pdf 08-00033 Incumbency Certificate.pdf 08-00033 Certificate of Insurance.pdf Motion by Commissioner Sarnoff, seconded by Commissioner Gonzalez, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Regalado Absent: 1 - Commissioner Spence -Jones R-08-0052 A motion was made by Commissioner Sarnoff, seconded by Commissioner Gonzalez, and was passed unanimously, with Vice Chair Spence -Jones absent, to direct the City Attorney to file suit immediately against Rachlin Cohen & Holtz for breach of contract and to procure City records withheld by the firm; further directing the City Attorney and the Administration to follow up with a recommendation of the Audit Committee. Chair Sanchez: And we go to RE.4. RE.4 is the Department of Finance. Diana Gomez: Diana Gomez, Finance director. This is a resolution authorizing an increase of the professional services agreement with McGladrey & Pullen, in an amount not to exceed $50, 000, for additional services that are required to be performed on the current year audit. Chair Sanchez: All right. I believe you've briefed all the Commissioners on this? Ms. Gomez: Yes, I did. Chair Sanchez: Is there a motion? Commissioner Sarnoff So moved. Chair Sanchez: There's a motion -- Commissioner Gonzalez: Second. Chair Sanchez: -- by Commissioner Sarnoff, second by -- Commissioner Gonzalez: Second. Chair Sanchez: -- Commissioner Gonzalez. Before we open it up for the discussion, it's a resolution. Anyone from the public wishing to address this item, please step forward and be recognized. Seeing none, hearing none, the public hearing is closed; coming back to the Commission. No further discussion on the item. All in favor, say "aye." City ofMiami Page 80 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay. " Motion carries, Madam Clerk, and that was RE.4. Commissioner Sarnoff Mr. Chairman? Chair Sanchez: Yes. Commissioner Sarnoff I would have liked to have at least had the opportunity to add that I believe that the City Attorney should -- now that you have a -- Unidentified Speaker: Right. Commissioner Sarnoff -- damaged figure, you should authorize -- we -- let me do a motion, an ore terms motion, that we file suit immediately against our predecessor company -- our predecessor auditing firm to do two things. One is to procure the records, which are ours to begin with; and pursuant to contract, we're contracted to be inspected and photographed by our office -- by the City ofMiami. Chair Sanchez: Right. Commissioner Sarnoff And second, now we have a breach of contract. Chair Sanchez: Okay. Commissioner Sarnoff So I could not have voted in good conscience on that resolution without authorizing the City Attorney to move forward with litigation against our predecessor. And what's her name? It's Ra -- Jorge L. Fernandez (City Attorney): Rachlin & Cohen. Pedro G. Hernandez (City Manager): Rachlin & Cohen. Commissioner Sarnoff Rachlin & Cohen. Did I get that -- Mr. Fernandez: Correct. Ms. Gomez: Rachlin Cohen & Holtz. Commissioner Sarnoff Cohen & Holtz. So let me -- here's my motion -- Chair Sanchez: All right. Commissioner Sarnoff -- that the City Attorney be authorized to immediately file suit against Rachlin & Cohen to do two things. One is to get our records and number two is to file suit now demonstrating the damage. Chair Sanchez: All right. I don't know if you and I got the same briefing, but my briefing there was no damage. Ms. Gomez: Well, there's no damage until we actually incur the cost. Mr. Fernandez: Correct. City ofMiami Page 81 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Right here. Ms. Gomez: Now that I have approval to incur the cost, we will incur the cost for this additional services -- Chair Sanchez: Okay. Ms. Gomez: So there will be -- Chair Sanchez: All right. Ms. Gomez: - damages as soon -- Chair Sanchez: Now I got it. Ms. Gomez: -- as I authorize them to move forward Chair Sanchez: Now I got it. All right. Ms. Gomez: Okay. Chair Sanchez: There is a motion that have been proffered -- Commissioner Gonzalez: Second. Chair Sanchez: -- by Commissioner Sarnoff -- Commissioner Gonzalez: Second. Chair Sanchez: The motion has been second by Commissioner Gonzalez. It is a legal issue. Before taking a final vote, it's always give the City Attorney an opportunity. Mr. Fernandez: Yes. Chair Sanchez: Mr. City Attorney. Mr. Fernandez: I'm glad that Commissioner Sarnoff is making that motion. Last meeting you made a motion authorizing us to seek injunctive relief and perhaps, under that authority I could have proceeded because we intend to proceed against this firm, but by making it very clear now what the cause of action is, which is for specific performance providing the records, that they owe us access to as well as now that we have damages, the appropriate causes of action change from what you have authorized before. And also, I want to report to you that your audit committee and that your auditor general has been involved, and they have communicated both to me and to the Administration a set of processes or protocol to follow so that we can bring this to the attention of the board of accountancy in the state of Florida so that this accounting firm, these auditors, not only get the lawsuit that they will be getting from the City, but that they also hear from the regulatory agency that regulates their conduct because, in their opinion -- and this is a group of all auditors and accountants -- they have acted inappropriately. Chair Sanchez: Okay. So we don't need a motion. We -- Mr. Fernandez: You do. Chair Sanchez: -- at the last previous -- City ofMiami Page 82 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Fernandez: I appreciate the motion, so please, pass on that motion because that's much more specific than what you had done last week. Chair Sanchez: All right, so there's a motion, second. No further discussion on the item. All in favor, say "aye." Commissioner Gonzalez: Aye. Mr. Fernandez: Excuse me. And include in that motion directing us, the Administration and the City Attorney, to follow up with a recommendation of the audit committee, because this would entail, in fact, filing grievances with the board of accountancy and that is a step that I believe we need your -- Chair Sanchez: Oh, yeah. Mr. Fernandez: -- specific authorization to do. Commissioner Sarnoff As amended, my motion. Chair Sanchez: As amended by the -- Commissioner Sarnoff City -- Chair Sanchez: -- sixth Commissioner. No. I'm only kidding, all right? City Attorney. All right, as amended. The maker of the motion -- Does the second accept the amendment? Commissioner Gonzalez: I accept the amendment. Chair Sanchez: All right. There's a motion and a second. It's been amended. All in favor, say "aye. The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay." Motion carries. All right. That takes care of the regular agenda, correct, Madam Clerk? Priscilla A. Thompson (City Clerk): That is correct. RE.5 08-00054 RESOLUTION District 3- Chair A RESOLUTION OF THE MIAMI CITY COMMISSION AUTHORIZING THE Joe Sanchez CITY ATTORNEY TO TAKE ALL LEGAL ACTION NECESSARY, INCLUDING INITIATING ANY AND ALL ACTION, IN LAW OR IN EQUITY, TO DECLARE THE CITY OF MIAMI'S AND THE DOWNTOWN DEVELOPMENT AUTHORITY'S RIGHTS AND RESPONSIBILITIES UNDER THE PROVISIONS OF THE TRIM BILL (CHAPTER 200, FLORIDA STATUTES). 08-00054 Legislation.pdf Motion by Commissioner Gonzalez, seconded by Chair Sanchez, 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 City ofMiami Page 83 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 R-08-0046 Chair Sanchez: All right, let's -- could we take the DDA (Downtown Development Authority) millage issue up? We do have the executive director here, and we do have some board members. Is the attorney ready? That is RE.5. City Attorney. Commissioner Sarnoff What are we, on RE (Resolution) --? Maria J. Chiaro (Assistant City Attorney): One of my colleagues will be presenting this. Chair Sanchez: Okay. All right. Before we go on this matter, let me just say that the item in front of us today is this legislative resolution, andl would respectfully request that any other items pertaining to the DDA should be placed, if a Commissioner wants to bring it up, on the agenda as a district discussion item or a personal appearance. The item being discussed here today is a resolution, which will be explained by the attorney; and if anyone has any questions, the executive director is here to answer, and we do have some board members that are present to address this matter. Madam Counsel, you're recognized for the record. Veronica Xiques: Veronica Xiques, Assistant City Attorney. The item before you this morning is a resolution authorizing the City Attorney to take all legal action necessary, including initiating any and all action in law and equity to declare the City ofMiami and the DDA's rights and responsibilities under the provisions of the trim bill, which is Chapter 200, Florida Statutes. As you are all aware, on September 27, the Commission took a vote. It took a vote on the Downtown Development Authority's millage rate. At that time there were four Commissioners sitting on the dais. The four Commissioners sitting on the dais all voted unanimously to adopt the millage rate that was levied last year, which was point five. That information was conveyed to the Department of Revenue. The Department of Revenue said that it was not a unanimous vote because although the language of the statute says that the nonvoted millage rate can be adopted by unanimous vote of the governing body, the DOR (Department of Revenue) is saying that that means that it's a unanimous vote of all members of the full governing body, which is not the same thing. This matter went to the DDA Board last Friday. Last Friday the DDA Board voted to have an interpretation as to what DOR is entitled to say that the word "unanimous" means. That's what is before you today. Chair Sanchez: All right. Executive Director, you're recognized for the record. Dana Nottingham: Thank you. As she indicated, on the 18th the DDA Board voted to request that the City Commission adopt a resolution authorizing the City Attorneys Office to file a declaratory judgment action seeking an interpretation of the term "unanimous" as set forth in Section 200.185, Florida Statute. Chair Sanchez: All right. Discussion. Commissioner Regalado: Mr. Chairman. Chair Sanchez: Commissioner Regalado, you're recognized. Commissioner Regalado: Thank you. Is it not easier to ask for a revote? Ms. Xiques: That's an interesting question. Commissioner Regalado: No, it's not an interest question, excuse me. We are here to probably approve, not with my vote, spending money, using the City Attorney resources, which is overwhelmed, by the way, to define a word in the English language to challenge the State Legislature; so we are going to spend money, we're going to spend resources. Why don't we just revote? It only takes five minutes. So it's not an interest question; it's a question about City ofMiami Page 84 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 economics. So can anybody answer that? Ms. Xiques: A revote was not voted upon by the DDA Board. The DDA Board was presented with the different options that they had to act, and they did not vote to hold a revote. Because it is the DDA's millage rate and the DDA is the one that's being held to be in noncompliance, it is partly the DDA's decision as to how it will proceed, and it chose this path to seek a declaratory judgment defining what the word "unanimous" means within the language of the statute. Commissioner Regalado: So if it's all about the DDA, what are you guys doing here? Why don't the DDA takes the responsibility, pay for legal counsel, use their resources to define a word in the English language? I mean, it doesn't make sense -- Julie O. Bru (Deputy City Attorney): Commissioner Regalado -- Commissioner Regalado: -- to come here. Ms. Xiques: We -- I -- Ms. Bru: -- we are the legal counsel to the DDA. Commissioner Regalado: I understand that. I understand, but she just said that it's about the millage of the DDA and that the DDA Board did not adopt a revote alternative, which was one of the alternatives, so now it's up to us to spend the money of the City Attorney and the resources of the City Attorney in order to try to tax more the property owners of Brickell Key, Brickell, and downtown Miami? So -- Chair Sanchez: Tax more? Commissioner Regalado: -- I just want -- Ms. Xiques: Commissioner -- Commissioner Regalado: -- to understand that. Chair Sanchez: That's -- Ms. Xiques: -- there -- Chair Sanchez: -- factually incorrect. There isn't -- Commissioner Regalado: No, it's not. Chair Sanchez: -- any discussion about taxing more. Yes, sir, that's incorrect. Commissioner Regalado: No. Mr. Chairman, Mr. Chairman. Ms. Xiques: Commissioner Regalado, ifI may? Commissioner Regalado: Excuse me, excuse me, excuse me, excuse me. The way it was explained to me, if the City prevails, the DDA will be able to tax half a million dollar more of the property owners in Brickell, Brickell Key, and downtown Miami. If the City loses, the $500, 000 in question will go back to the County for the County to be refunding that money to the property owner. It's very simple. So if you vote for this, you are indirectly and directly voting for a tax increase in the DDA area. That's all that there is to it. It's very simple. It's not incorrect. It's half a million less or half a million dollar more in taxes for the DDA district. City ofMiami Page 85 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Xiques: Commissioner Regalado, ifI may, there's two points that you just made, one of which I want to answer; it's a question, and the second one is a statement, which is not 100 percent factually correct. The first question that you asked was why we're here before the City Commission rather than the DDA Board simply taking the authority to do this on its own. The DOR is saying that the vote was not unanimous, so they are not challenging the millage rate; they are challenging the vote. The vote was taken by the City Commission, so it has to be the City Commission that ultimately authorizes the City Attorney's Office to take any action. That was -- that's the answer to your first question. Commissioner Regalado: I understand. Ms. Xiques: The second point that you made was that if you vote to allow the City Attorney's Office to take a declaratory action, it means that you're essentially voting for an increase of half a -- Commissioner Regalado: I did not say that. I said if the City prevails in court. Ms. Xiques: Okay. Commissioner Regalado: So it's totally different It's not incorrect what I said. It's totally, absolutely different. If the City loses, no half a million dollar for the DDA. If the City prevail -- that's what I said -- if the City prevail, so I wasn't incorrect. Ms. Xiques: Well, that's not exactly 100 percent correct either. If the City prevails -- the millage rate is already set. The millage rate has already been voted to be point five. If the City prevails in its lawsuit, it's only a supporting factor. If the City loses, it's in the same exact position that it is today. The argument of the DDA is that its millage rate was properly set at point five, so the lawsuit does nothing to the millage. It simply is a measure to say, yes, you are correct, and DOR's interpretation is not necessarily correct. Commissioner Regalado: And who gets the half a million dollar? Ms. Xiques: The half a million dollars has already been voted on by -- and approved by the City Commission for the DDA. Commissioner Regalado: No, no. Ms. Xiques: If the -- Commissioner Regalado: Who gets the City -- the half a million dollar -- if the Department of Revenue of the state of Florida declares illegal or unvalid [sic] that vote declares that -- or the Court says that the Florida Department of Revenue is correct on following the state statute that it has to be an unanimous vote of any governing body, so who gets to keep the half a million dollar? Ms. Xiques: If the City prevails, the DDA -- Commissioner Regalado: No, no, no, no. Ms. Xiques: -- keeps the money. If the City does not prevail, then the money is essentially in limbo, which is the argument that we have now, that DOR is saying we're not in compliance with Section 200.185, and that's what requires a revote. So who would get the money? The question isn't a hundred -- it can't be answered. You could say that ultimately it may go back to the taxpayers, but that can't be answered for sure. City ofMiami Page 86 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: I can say that. That's all want. Chair Sanchez: Vice chair. Neisen Kasdin: Thank you, Mr. Chair, members of the Commission. Neisen Kasdin, vice chair of the Downtown Development Authority. And I would like to let you know, Commissioner Regalado, that the City Attorney was actually much tougher with us as we went through the analysis at the Board because it's a complex question, and we went through it at length; and we have some very fine legal minds on our Board as well. And our conclusion was simply as follows, Commissioner and members of the Commission. Number one, unanimous means unanimous, and we feel very strongly that the interpretation by the Department of Revenue is wrong and that the case precedent is such that it will be determined that their interpretation is wrong. Number two, we've already adopted the budget for the year. It also includes putting more money on the street, including a million dollars -- hard dollars on South Miami Avenue and -- than we have ever put as an agency on the street. I've been on since December of '06. The -- so the budget's done. The budget puts more dollars on the street, and if this money is not able to be used, we will have to look at which programs to cut back and how to redo the budget. Finally, the assessments have gone out, the bills are in the process of being paid, the money's coming in, so that's already happened. So we feel that this is just an issue where the interpretation of the language is clear, actions had been taken based upon that clear definition of "unanimous, " and you know, we'd like the opportunity to clarify and put that money to good use. Thank you. Chair Sanchez: Thank you. Commissioner Sarnoff Mr. Chair. Chair Sanchez: Commissioner Sarnoff. Commissioner Sarnoff Madam City Attorney and maybe the City Attorney as well -- because I looked up Chapter 200 andl didn't see an enforcement mechanism. Ms. Bru: Yeah. You're -- Ms. Xiques: You're correct. Ms. Bru: -- absolutely correct, Commissioner. There -- you know, and that's one of the options that was presented to the DDA Board. There really is no penalty for an agency, such as the DDA Board, for not complying with the unanimous vote provision, so -- Commissioner Sarnoff Would it not be prudent for us to do nothing? Ms. Bru: That's one of the options that has been discussed and recommended. That's what -- Commissioner Sarnoff I -- you know, not that I like to side with you guys because we're lawyers and we both eat each other for lunch, but I happen to agree with you guys. I don't see why you would -- I don't see why you'd take any action in this circumstance. Mr. Kasdin: May I address that, Mr. Chair? Chair Sanchez: Yes, sir. Mr. Kasdin: Because we had extensive discussion on that, Commissioner. We do not feel, as long as the Department of Revenue's interpretation stands as it, that it is prudent to spend that City ofMiami Page 87 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 money as an agency, and so we won't spend that money if there's a doubt at our ability to assess it and collect it. So we felt that we need to clam this issue. Chair Sanchez: If I could just address on that. I wanted you to emphasize that that money's being put into escrow and not being used, but the issue here is that the DOR, March 1, will report to the Legislature that we are noncompliant. We feel that, possibly, the State will take action, and that's one of the suggested recommendations that the attorney's provided to us, that the State could take actions against us. But I agree with you; there is no enforcement whatsoever, because we do not receive any money from the State. Ms. Xiques: Mr. Chairman, ifI may. I think something that I want to remind the Commission is that the resolution before you has nothing to do with the revote, whether or not to hold a revote, whether or not to allow it. The resolution before you today is whether or not to file -- to allow the City Attorney's Office to file a declaratory judgment action seeking a very, very narrow interpretation of the word "unanimous" as it is used in 200.185 Florida Statutes. It's important to keep the two matters separate because one really -- although they're -- you could say they're intertwined. Right now what we're asking for has nothing to do with the revote and the consequences of a revote. While we understand -- and it was our City Attorney's Office recommendation that the status quo be maintained, that was not what the DDA Board voted on, so we are here asking for the relief that the DDA Board requested. Chair Sanchez: And the issue is that we need to address these issues. We just can't sit back and not address them. There're a lot of issues that need to be addressed on this. As a matter of fact, this may even require amending the legislation, because as it is right now, we cannot comply with the language that the Florida Legislation [sic] is applying. Ms. Xiques: That is correct, Mr. Chairman. The statute requires -- 200.185 requires that the millage rate be adopted, if it's going to be last year's millage rate, by the unanimous vote of the governing body of the independent special district. In this case, the DDA Board does not have the authority to adopt that millage rate. The DDA has the authority to ask that the City Commission adopt the millage rate that it recommends. So, ultimately, there are many issues that our office has encountered with the statute, but at this point, the DDA Board only asks for permission to have an interpretation of the word "unanimous." Chair Sanchez: Executive -- vice chairman. Mr. Kasdin: Mr. Chair, I'd also like to say two things. First, to acknowledge that our treasurer, Al West, is here and can also answer any questions regarding the budget, and Oscar Rodriguez from our Board is here. With respect to -- one board member who could not be here because he's out of town is Jay Solowsky, who recently joined the Board. He's a very prominent trial attorney in this town. And he was very intimately involved in the discussion, and he felt very strongly and the Board felt strongly as well that we should not let the State frame the legal issue, if it goes to an enforcement action; it'd be better for us to frame the issue, and the issue really is, you know, what does unanimous mean? And secondarily, andl think it was a widely felt feeling, is that we really don't want the State Legislature to be the one to necessarily interpret it because we know the State Legislature has been a great friend of the City ofMiami and all cities, and so I don't think they're looking out for our interests in this. I think they have a different agenda, and arguably, a political agenda. So we felt the simplest thing to do, since we're not going to spend that money unless this issue's cleared up -- but the money is being collected from everyone as we speak right now -- is to get clarification of -- and we have budgeted based on that for this coming year -- get clarification of that. Chair Sanchez: All right. Any further discussion on the item? The resolution that's in front of us is a resolution of the City of Miami Commission authorizing the City Attorney to take all legal actions necessary, including initiating any and all claims in law or in equity to declare the City City ofMiami Page 88 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 ofMiami's and Downtown Development Authority's right and responsibilities under the provision of the trim bill, Chapter 200, Florida Statute. Is there a motion? Commissioner Gonzalez: I'll move the resolution. Chair Sanchez: There's a motion. Is there a second? Second. Vice Chair Spence -Jones: All in favor? Commissioner Gonzalez: Aye. Commissioner Regalado: No. Chair Sanchez: Why don't you do a roll call? Priscilla A. Thompson (City Clerk): Roll call. Commissioner Sarnoff? Commissioner Sarnoff No. Ms. Thompson: Commissioner Regalado? Commissioner Regalado: No. Ms. Thompson: Commissioner Gonzalez? Commissioner Gonzalez: Yes. Ms. Thompson: Chairman Sanchez? Chair Sanchez: Yes. Ms. Thompson: Vice Chairman [sic] Spence -Jones? Vice Chair Spence -Jones: Yes. Ms. Thompson: The resolution passes, 3/0 [sic]. Chair Sanchez: All right. Thank you. Mr. Kasdin: Thank you very much. City ofMiami Page 89 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 PART B Chair Sanchez: We have a time certain item, which is PZ.1. We'll go to that item. That item -- We move into the PZ (Planning & Zoning), so therefore, Mr. City Attorney, read the procedures and the disclaimer into the record. Also, all those that are here for the PZ items, let's go ahead and get you sworn in. If you're going to speak on an item, please register with the City Clerk. Mr. City Attorney, read the procedures into the record. Mr. Fernandez: Yes. Mr. Chairman, Commissioners, members of the public, I would read the procedures not only for how P&Z items will be conducted but also the entire general agenda. Any person who is a lobbyist must register with the City Clerk before appearing in front of the Commission. A copy of the Code section about lobbyists is available in the City Clerk's office. The material in connection with each item appearing on the agenda is available for inspection during business hours at the City Clerk's office and online. Formal action may be taken on any item discussed or added to this agenda. All decisions of the Commission are final except that the mayor may veto certain items approved by the City Commission within ten calendar days of the Commission action. The Commission may override such veto by a four fifth vote. The City of Miami requires any person or entity requesting approval, relief or other action from the Commission or any of its authorities agencies, councils or committees to disclose, at the commencement of the hearing on the issue, any consideration provided or committed directly or on its behalf to any entity or person for an agreement to support or withhold objection to the requested approval. Consideration includes any gift, payment, contribution, donation, fee, commission, promise or grant of any money, property, service, credit or financial assistance of any kind or value, whether direct or implied, or any promise or agreement to provide any of the foregoing in the future. Please note that if you have previously submitted the affidavit as part of an application package, you are required to read the disclosure contained therein into the record prior to the commencement of the hearing. Also, if there is any additional information to disclose since the time you submitted the application package, you must supplement the affidavit. If you have not previously submitted the affidavit and have information to disclose, please obtain and complete that affidavit prior to the commencement of the public hearing on this issue. Individuals retained or employed by a principal as a lobbyist, as defined in Section 2-653 of the Code, and appearing before the City Commission, solely in the capacity of a lobbyist and not as the applicant or owner's legal representative are not required to submit the affidavit. The disclosure form, which is available from the City Clerk, must be read into the record by the requesting person and submitted to the City Clerk. Anyone wishing to appeal any decision made by the City Commission for any matter considered at this meeting may need a verbatim record of the item on which the appeal is based. Absolutely no cell phones, beepers, nor other audible sound or ringing devices are permitted in the Commission chambers. Please silence those devices now. Any person making impertinent or slanderous remarks or who becomes unruly while addressing the Commission shall be barred from further attending Commission meetings unless permission to continue or again address the Commission is granted by a vote of the Commission. No clapping, applauding, heckling or verbal outbursts in support or opposition to a speaker or Commissioner are allowed. No signs or placards are allowed in the chambers. Persons exiting the Commission chamber shall do so quietly. Persons may address the City Commission on items appearing on the 'public hearing" portion of the agenda, on an items where public input is solicited. Persons wishing to speak some inform the Clerk as soon as possible of the desire to speak, giving the City Clerk their names. At the time the item is heard, persons who will speak should approach the microphone and wait to be recognized. Any person with a disability requiring auxiliary aids and services for this meeting may notifi, the City Clerk. The lunch recess will begin at the conclusion of deliberation of the agenda item being considered at noon. A private attorney -client -- well, that session is not going to be heard now, so -- because it was announced that it was cancelled. The meeting will end either at the conclusion of deliberation of the agenda item considered at 10 p.m. or at the conclusion of the regularly scheduled agenda, whichever occurs first. And now, Mr. Chairman, at this time, we will also read the protocol and the process that the Commission observes when hearing PZ items because City ofMiami Page 90 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 you're opening up the PZ agenda first. PZ items shall proceed as follows. Before the PZ agenda is heard, all those wishing to speak will be sworn in by the City Clerk. First, staff will briefly describe the request, whether it's an appeal, a special exception, a vacation, text amendment, zoning change, land -use change, or MUSP (Major Use Special Permit) and make its recommendation. Then the appellant or petitioner will present their request or their position. After that, the appellee, if it's an appeal, will present their position. After that, it will be open to members of the public who will be permitted to speak on the item. Petitioners or anyone may actually ask questions of staff or of any presenter, so long as those questions go through the Chairperson; and at the conclusion of that portion of the public hearing, the appellant or the petitioner will be permitted to make final comments. After final comments by the appellant or the petitioner, the Commission take -- closes the public hearing input of the hearing and takes it back to itself for deliberations. Chair Sanchez: Thank you, Mr. City Attorney. Mr. Fernandez: Mr. Chairman. PZ.1 07-00542ha RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING THE APPEAL FILED BY GILBERTO PASTORIZA, ESQ., ON BEHALF OF JOSHUA GOLDBERG ("APPELLANT"), AND AFFIRMING A DECISION OF THE HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD ("HEPB"), WHICH DESIGNATED THE LITTLE HOUSE IN YE LITTLE WOOD BUILDING, LOCATED AT APPROXIMATELY 3848 LITTLE AVENUE, LOT 19 ONLY, AS A HISTORIC SITE. 07-00542ha Appeal Letter.pdf 07-00542ha Appeal Update.pdf 07-00542ha Aerial Map.pdf 07-00542ha HEPB Reso.pdf 07-00542ha HEPB Vote Sheet.pdf 07-00542ha HEPB Submittals.pdf 07-00542ha HEPB Fact Sheet.pdf 07-00542ha City Attorney's Office Designation Opinion.pdf 07-00542ha Designation Report.pdf 07-00542ha Legislation (Version 2).pdf 07-00542ha Legislation (Version 3).pdf 07-00542ha 11-09-07 Fact Sheet.pdf 07-00542ha 01-24-08 Fact Sheet.pdf 07-00542ha-Submittal-Dade Heritage Trust Magazine. pdf 07-00542ha-Submittal-Lisa H. Hammer. pdf 07-00542ha-Submittal-Letters and E-mails. pdf 07-00542ha-Submittal-Photographs. pdf 07-00542ha-Submittal-Joshua Goldberg E-mail. pdf Motion by Commissioner Sarnoff, seconded by Vice Chair Spence -Jones, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 5 - Commissioner Gonzalez, Sarnoff, Sanchez, Regalado and Spence -Jones R-08-0045 Direction by Commissioner Spence -Jones to the Administration to distribute the design guidelines and fact sheets provided on the Historic Preservation Miami Web site to residents and neighborhood associations in historically designated neighborhoods in the City ofMiami. City ofMiami Page 91 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: On the item, how many residents will be speaking on this item? Please raise your hand. Okay. All right. Well, it's an appeal so the appellant goes first. You're recognized for the record. Tony Recio: Thank you, Mr. Chair -- Priscilla A. Thompson (City Clerk): Excuse me, Chair? Mr. Recio: -- members of -- Ms. Thompson: Excuse me. We need to swear them in. Chair Sanchez: Oh, I do apologize. I thought you were sworn in. Please -- all -- as a matter of fact, everyone who's here on a PZ (Planning & Zoning) item, let's go ahead and swear you in; and then, after lunch when we proceed with the PZ items, those that come in for the afternoon, we'll swear them in. So all those that will be addressing this Commission, please stand up and raise your right hand and the City Clerk will swear you in. Ms. Thompson: Okay. Do you solemnly --? I'm sorry. Pleas raise your right hand. The City Clerk administered oath required under City Code Section 62-1 to those persons giving testimony on zoning issues. Ms. Thompson: Thank you. Chair Sanchez: Thank you. All right. Mr. Appellant. Mr. Recio: Good morning -- Chair Sanchez: You're recognized -- Mr. Recio: -- Mr. Chair. Chair Sanchez: -- for the record. Mr. Recio: Thank you, thank you. Good morning, Mr. Chair, members of the Commission. For the record, my name is Tony Recio, with law offices at 2525 Ponce De Leon Boulevard. I'm here on behalf ofJosh Goldberg, who is the owner of the property at 3848 Little Avenue, and that's the property that is at issue here. We're here today appealing the Historic and Environmental Preservation Board's decision related to the historic designation of Mr. Goldberg's property. To boil this down, this was a neighbor -driven effort, an effort we believe inspired out of fear, fear of redevelopment. This fear is misplaced because there are already protections in place in the Code, and I'll -- I will explain those in a moment. And beyond that, this effort is unfairly singling out this property as opposed to the entire neighborhood. What the neighbors are looking for here is control. Control -- they -- what they saw coming was a tide of redevelopment, or at least they thought that that's what was coming, and it was all inspired by Mr. Goldberg putting his house up for sale, but I will explain to you that Mr. Goldberg really put a lot of money into restoring this house; and it's not -- was not thinking redevelopment. That wasn't the point, but let me walk you through it. What I've put up here is the Ye Little Wood subdivision, consists of 34 parcels just off of Douglas Road. It is a private community. That road that you see in yellow is the access road. That's the ring road. It is entirely private. It is accessed by a gate with -- an electronic gate; you have to be buzzed in to be allowed in. The subdivision as a whole is actually pretty interesting. It's got a long and vibrant history. This was the site of Miami's first brothel, of Miami's first casino. This was home to world famous sculptors and artists in that City ofMiami Page 92 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 subdivision. Theodore Spicer -Simpson is one. Another great painter, Eugene Massin, who also has a home in that subdivision designed by, I believe, the America's first female architect, okay. And even more colorful, even more interesting, there is a home there where the -- America's first X-rated movie was filmed, touching off a national controversy. I'm mentioning all of these -- none of these homes here in this subdivision -- I mean, none of the things that have mentioned took place in this particular home, the home that's at issue today. What did happen in this home? Well, it was the home built by William V. Little, who was director of the Bank of Coconut Grove, and according to the staff report, he served as mayor of the town of Coconut Grove for one year back in 1920. Despite all of these interesting -- the interesting history of this subdivision, the Planning Department, until 2006, never took an interest in protecting -- specifically protecting this property. Local preservationists didn't take any steps to preserve any of the neighborhood, and the very neighbors that initiated this effort didn't take any of these steps. Why did they start now in 2006? Well, Mr. Goldberg, as I said, put the property up for sale. It seems that that simple action touched off a wave of fear. Fear of what? Fear of redevelopment. Fear of the dreaded McMansions. Fear that those McMansions would alter the character of the neighborhood. That fear had nothing to do with protecting a quaint little house that no one can see, and when I say no one can see, I mean no one. Beyond the fact that this is a private ring road, once you're inside from that private ring road, there's a tall fence; it's already up. There's heavy landscaping. And my associate is passing out some pictures of that fence. You can't see it from even the private road. Chair Sanchez: Next -- Mr. Recio: Yes, sir. Chair Sanchez: -- document that you present, present it to the City Clerk, please. Mr. Recio: Yes, sir. Okay. And those were part of the original record at the -- before the Historic Board. Those are just copies of those same pictures. The fear that I'm talking about is embodied in a petition that went around the neighborhood, and I'm going to quote from that. This was a "dear neighbor" petition. One of the things they talk about is -- this is how it starts: "Due to increasing concerns about the overdevelopment epidemic that has run rampant in Miami and has a potential to ruin both the character and economic stability of the Ye Little Wood neighborhood, several of us have reached out to the City ofMiami." I'll go on. In fairness, certain checks and balances are needed to counter builders and developers coming into our neighborhood to make a short-term gain at the expense of those of us wanting to remain in a community where beauty, financial stability of property values, and quality of life issues take precedence." These statements paint a pretty clear picture of what these neighbors were doing. They're trying to protect their neighborhood from redevelopment, and they singled out this property because it was for sale. If you think about the strategy they employed, it's actually a very smart strategy. These are very intelligent neighbors. They saw the for sale sign; they saw what it might mean, and they evaluated their options and said, what's the quickest way we can slap something on this? Oh, that's a historic preservation designation. This was all about control rather than protecting a significant structure for the benefit of the public. Indeed, this is not about public benefit at all. How can the public benefit from something -- from a home that can't be seen by the public? It can't be enjoyed by the public. I'll tell you, the only people that benefit from this designation would be these neighbors in the fact that they would add another layer of control to their neighborhood. It's really a self-serving quest for this control. With all of the burdens and all of the implications of that control being borne by my client, it's all on him. What are we talking about that's on him? He's got an extra layer of process whenever he wants to do anything. If he wants to change out the windows in his house to impact -resistant windows, he's got to go through a whole other process, a process that doesn't exist right now. Simple things will involve now hiring design professionals, making presentations possibly before the Historic and Environmental Preservation Board. It's just extra process. These -- the Constitution requires that when you put these burdens on a property, you've got to serve the City ofMiami Page 93 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 public interest, and that's not being served here. Now, the most frustrating thing about all of this is that the protections that the neighbors are seeking here, the control that they want, they already have; and I'll walk you through why they already have it. In 2005 this Commission adopted the Neighborhood Conservation District 3 for Coconut Grove. Just going to highlight a couple of the important points, and this is from the intent section. The intent was to preserve the historic, heavily -landscaped character of Coconut Grove's residential areas. It was to protect the architectural variety with the unique single-family neighborhood that comprises Coconut Grove, and if you look at the last statement there, any demolition which would be required in order to accommodate redevelopment, demolition requires a Class I Special Permit. That's a protection already built into the Code that was recently adopted by this Commission. What does a Class I Special Permit involve? Well, it involves, number one, notice to neighbors so they will know about it before any petition would be made. Number two, it has to go to the Planning director for their review and their approval. And what are they going to review? They're going to review this intent; talks about historic and heavily -landscaped character. It talks about keeping things in character. Number three, there's an opportunity for appeal. Let's say the Planning director says, you know what? Let's -- I'm going to allow demolition. I'm going to issue this Class I Special Permit. Well, these neighbors can always appeal; they had notice. They can appeal it. It would go to the Zoning Board. It would -- it may eventually come to the City Commission. They've got the protection in place. They've got the process in place; the mechanism already in place. There are other protective measures already in the Code. Beyond the Neighborhood Conservation District, there's, you know, the -- you know, starting from the bottom, there's the R-1 regulations, which set forth the basic zoning parameters. There is SD-18, which requires lots of a certain size; does not allow smaller resubdividing lots. This is not the case where this is going to get resubdivided. On top of that, echoing the SD-18, there's a deed restriction on this house that all of these neighbors have that requires 10,000 square feet, a 10, 000-square foot lot. That's written into the deed history. There's the tree ordinance which heavily regulates tree relocation, tree removal. These are things that would inhibit redevelopment of any property. Commissioner Sarnoff Are you willing to come back a little later today when we revisit one of those trees? Mr. Recio: I -- sure. Finally, the -- along with this process, when the Historic and Environmental Board was reviewing this, Planning staff in their report -- and I'm going to quote here from their report -- "The neighborhood as a whole seems to possess the integrity and criteria for a district. There is more justification to consider the subdivision as a district and not to single out any one property." This is about the subdivision as a whole. Well, following this logic, the Historic and Environmental Preservation Board made a motion to prepare a designation report for the entire subdivision. The way the Code works is once that motion has been made, all the properties in there are stuck; they can't do anything for a period of time to allow the Historic and Environmental Preservation Board to review that designation report. This is just an added layer of protection, and we've got already five layers that we've discussed of protection that the neighbors already have. Beyond the fact that these rules are already in place, the beauty of all of these rules, beyond the fact that they protect the neighborhood is they apply to everybody equally. All the neighbors are treated the same way. That's really -- that's a constitutional principle. That's an American principle. That's what's right. It's about treating everybody equally as opposed to singling out a specific property. We recognize the uniqueness of the neighborhood as a whole. We're not countering that. In fact, that's why Mr. Goldberg spent about a quarter of a million dollars to restore this property. He fixed the settling floors, he redid the porch, he installed a new septic tank and drain system, and that's important because that -- a septic tank and drain field controls the size of a house. He's not looking to add onto any of this, and he wasn't at the time that he was restoring this property. He recognized, this is a great neighborhood. Let's keep that character for the neighborhood as a whole. I had mentioned earlier that the designation report for the whole neighborhood was supposed to be prepared. Well, it hasn't been yet. We're talking eight months since that motion was made and it City ofMiami Page 94 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 hasn't been yet, and we don't really understand why that designation report hasn't been brought up before the Historic and Environmental Preservation Board. I don't want to be a cynic. I don't want to question people's motives, but you know, it could be that people don't want their homes burdened like this. They want to throw it all onto Mr. Goldberg's home. We're perfectly willing to go along with the tide with everybody else. We just want to be treated the same way, and that's what really this comes down to. If you're going to designate the whole neighborhood - - it's all -- it's a basic maxim. What's good for the goose should be good for the gander, and that's what we're asking for, to be treated fairly and equitably. Chair Sanchez: Thank you. Madam Clerk, how much time did the appellant have? Ms. Thompson: That was actually 14 minutes. Chair Sanchez: Same time -- Commissioner Sarnoff Mr. Chair -- Chair Sanchez: -- will be granted -- Commissioner Sarnoff -- can I ask a couple questions? Chair Sanchez: Sure. All right. Chair Sanchez: You referenced the United States Constitution, but I didn't hear what parts of it you were claiming that's unconstitutionally being applied to your client. Mr. Recio: Generally, equal protection, due process. That's -- these are general concepts about fairness and -- Commissioner Sarnoff And you're making the argument -- Mr. Recio: -- equity. Chair Sanchez: -- equal protection will be violated and due process will be violated? Mr. Recio: Well, we're being -- we're similarly situated, and we're being treated differently. We're being singled out, and we're -- all we're asking for is to be treated equitably along with every other neighbor. Commissioner Sarnoff I understand. Your due process is being afforded you here today, correct? Mr. Recio: That's correct. Commissioner Sarnoff All right. Mr. Recio: That's correct. Commissioner Sarnoff Your equal protection -- you're trying to suggest to this Commission that you're being treated disparately? Mr. Recio: That's correct. Commissioner Sarnoff Okay. And let me ask you a question because you made a lot of comments, but would you agree with me that the property is associated in a significant way with City ofMiami Page 95 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 the life of a person important in the past? Mr. Recio: It depends on what is important, but he did serve as mayor for one year. I -- Commissioner Sarnoff Do you think that's important to the people of Coconut Grove that a man sat -- lived in that house that was the mayor of Coconut Grove? Mr. Recio: I believe it is important. I don't believe it's any more important than any of the other happenings that occurred -- Commissioner Sarnoff So the answer is yes -- Mr. Recio: -- in the subdivision. Commissioner Sarnoff You --? You brought it up, so I would imagine you found it -- Mr. Recio: Certainly. Commissioner Sarnoff -- to be yes. Do you also find that the property embodies those distinguishing characteristics of an architectural style or period or method of construction found in that area? Mr. Recio: The staff report says that the architecture is. Commissioner Sarnoff So you concede those two points? Mr. Recio: Yes. Commissioner Sarnoff Okay. Chair Sanchez: Commissioner Regalado, and then we'll -- Commissioner Regalado: A question. You -- most of the argument is about everybody has to be treated equal, right, equal protection? However, there is a policy in the City ofMiami Code enforcement that when someone buys a house and, inadvertently, that house has an illegal unit; and inspector comes by, cites the new owner, and the new owner said, well, I didn't know; and the line, the official line is, well, you know, you bought the house; you bought the headache. So can we assume that if you buy a house that is or could be historical, you are buying the same headache that has to go along with the process? I mean -- Mr. Recio: Well -- Commissioner Regalado: -- if it -- what is it, goose and the gander? Mr. Recio: Yes. Commissioner Regalado: Okay. So, you know, if you buy a house that is or could be historical, you are aware that somehow along the line there will be some rules that apply different to that house than to the other people. The same with the people with the illegal units; you know, they bought the house, they bought the headache. I'm just trying to understand here if, all of a sudden, we are not upholding the Constitution of the United States throughout the City ofMiami. Mr. Recio: IfI may, Mr. Commissioner. It's a little decent from a Code enforcement action. You're -- you -- when you buy a house and you do your due diligence, or you should do your due diligence, you -- that will reveal that a violation of the law exists. This property, although it may City ofMiami Page 96 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 have historic ties, or any property that may have historic ties, there's no violation and there's no regulation in place that would -- Commissioner Regalado: I'm not saying there is a violation. I'm saying that it's different rules. If you do the due diligence on a house that could be historical, you should be aware that, you know, you have to follow different rules; and that's what I'm saying, okay? Mr Recio: Certainly. Commissioner Regalado: Thank you. Chair Sanchez: All right. Let's go ahead and hear the other side, and then we'll open it up to the public. Everyone will be afforded two minutes to address the Commission, and then the Commission will determine the outcome of this appeal. Ma'am, you're recognized for the record. Kathleen Kauffman: Thankyou, Mr. Chairman, members of the Commission. Kathleen Kauffman, preservation officer for the City ofMiami. The Little House in Ye Little Wood was built in 1902, and it was the home of William V. Little. William V. Little was actually the gentleman who created that whole subdivision of Ye Little Wood; and he did the original plat, and he built that house; and very civically active and an early pioneer of the Coconut Grove. It was a difficult decision to, in the original designation report, recommend not designating it because staff had two concerns, which Mr. Recio has already pointed out to you. One of the concerns was the public access because it's a private road with a gated entrance, and the other item of concern was that staff did feel, possibly, the entire neighborhood would qualf as a historic district. During the course of the public hearing at the Preservation Board hearing, both items of concern were addressed. The neighborhood let the Preservation Board know that the gates were open on a regular basis twice a week for the garbage trucks, but that they were open at regularly scheduled times. There's also a pedestrian entranceway that's open, and then the other item, the fact that possibly the whole neighborhood would qualf as historic. The neighborhood has taken on that responsibility. They went out; they applied for and they got a villager grant to help with the costs of hiring the preservation consultant. So they have hired a preservation consultant to do the work, to determine if the whole neighborhood would quali. The initial draft has been drawn up, but nothing has actually -- a final draft has not been presented to our department yet. There was a question as to why now? Why were the neighbors just starting this now? They really haven't had the onslaught of development in there before the -- before recent years, and so what has happened in that little gated community is of great concern to the neighbors. They have had a McMansion built in there, a really, really large one, and they have had some other developments go in there; and they have had demolitions, just within the last year, of historic homes. I think there's been two or three of them in the last year, and I'm sure the neighbors will fill you in on that. The Preservation Board decided to unanimously vote for the designation of the property because it qualified under the criteria in the preservation ordinance. That's what they were supposed to be looking at, and that's how they made their determination. Thankyou. Chair Sanchez: Thank you so much. The item is open to the public. All those wishing to address this item, please step forward and be recognized. Yes. Ms. Thompson: Sir, Chair, if you might let me indulge. We had some individuals that came in after the swearing in who are testifying on this item that will need to be sworn in. Chair Sanchez: All right. Those who have been sworn in already, please stay seated. Those that arrived after the swearing in, please stand up to be sworn in. Thank you so much, Madam Clerk. Swear them in. Ms. Thompson: Please raise your right hand. City ofMiami Page 97 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 The City Clerk administered oath required under City Code Section 62-1 to those persons giving testimony on zoning issues. Ms. Thompson: Thank you. Chair Sanchez: All right. Two minutes. Ma'am, state your name and address for the record. Ruth Latterner: My name is Ruth Latterner. I live in Ye Little Wood, 3777 Pine Avenue. I am all for voluntary historic designation. I am against involuntary historic designation. Andl am appalled that this was thrust upon Josh Goldberg against his will. I would not like my house to be historically designated against my will. Thank you. Chair Sanchez: Thank you, ma'am. All right. Please. Joyce Landry: I'm sorry. I have how long? Two -- Chair Sanchez: Two minutes, ma'am. Ms. Landry: Okay. Chair Sanchez: I mean -- yeah, two minutes. But she took very little time, so -- Ms. Landry: Thank you. Chair Sanchez: -- if you go over -- Ms. Landry: My name is Joyce Landry, and I am a resident of Ye Little Wood for ten years now. I'd like to address a couple of things that Josh's attorney had brought up. Number one is that he mentioned a world famous sculptor, Eugene Massin. Well, that would have been lovely to have his home today. It was shortly after the designation of Josh's home last year that, under the shroud of darkness, Eugene Massin's home was slashed to the ground. We don't recall ever receiving any notice about it or being able to make any determination that whether we approved of that or not. It is currently a very ugly, empty lot with nothing on it, and we absolutely mourn the loss of that home. No thought of redeveloping. Interesting. Because there was a letter that was sent to Ye Little Wood Board in early '06, after Josh bought the property right next door to the Little House, intending to sell both properties together for $3.6 million or a profit of 1.8 -- $1, 860, 000 on his original investment. Now, who would be able to afford $960 a square foot for two properties? The only person who could afford that was the developer. We would like to actually applaud the Historic Board for being able to designate this so quickly last year, because we feel confident that that house would have been torn down in a hurry had this not been designated when it was; and we'd like to see the rest of the homes in the neighborhood have that same opportunity. We do have a move going forward to investigate the entire neighborhood being preserved. There're a number of neighbors who are in this room right now who are involved in this and who would like to see this happen, so this is not unfairly singling Mr. Goldberg out. Our fear is that if this house goes away, it severely impinges on our ability to historically designate. It's our oldest home. It's the home of the man who developed our neighborhood. I mean, it's the core of what we have to go historic designation. We did a lot of homework before we unduly burdened Mr. Goldberg, if that's what you want to call it. We wanted to make sure that we, as neighbors, would be able to accept the restrictions of historic designation before we even brought this up; and we had people come to the neighborhood tell us about it, and what we found out is there are a lot of huge misconceptions about historic designation. It doesn't prevent enhancement of the home or even major renovations. In fact, there's an enormous tax benefit to anybody who does it. You don't pay increased taxes for 10 years. Wouldn't we all like that? There's also a myth that it decreases property value when, in City ofMiami Page 98 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 fact, it has never been proven; and there's plenty of examples of how it increases value. Any real estate broker will tell you that in a down market, the historic homes hold their market; they don't decrease. We also know -- and we have the contract in our possession -- that a contract was put on the Little House for above market value, which would have given Josh more than 24 percent back on his investment of that property. He declined it. Why did he decline it? Because he intended on doing something with that property, like making it into another one of our Italian McMansions, one of which we don't really want more of those in our neighborhood. You know, one of the reasons we may not see Josh in the room today -- he's never been to one of these hearings. We've done this three times now -- is because he is registered resident of Palm Beach. He does not live here. We live here. We are the neighbors here who are telling you that we want to take care of our homes. Chair Sanchez: Couldl interrupt you for a minute? Ms. Landry: Yes. Chair Sanchez: Could someone who was willing to speak proffer your time to the young lady? Thank you. Ms. Landry: Okay. So about Constitutional rights, we have Constitutional rights as well; and it's the Constitutional rights of many over maybe the Constitutional rights of one because we do want to preserve the rights that we have to preserve the quality of our life and not be living in a 100 percent construction zone going forward, and that's one of the reasons why the neighbors have gotten together to investigate becoming a preserved neighborhood, historically designated. We see it as an advantage. We see it as a value. IfI could ask the neighbors who are in the room who are all for this, if you could just raise your hand? I mean, it would be helpful to know that we have a significant number of people here who are willing to speak on this behalf. So I'm just -- and by saying somebody took a stand back when Miami Beach was designated historic with the Art Deco District, we, the neighbors, are taking a stand. If you're looking at why now, it's because why not? If we don't do this now, we may lose a neighborhood and we may lose a really beautiful neighborhood, which Mr. Little, when he designated it in 1920, talked about space, air, very large setbacks. We lost our setbacks. We don't have 200-foot setbacks anymore, but we have an opportunity to have an amazing neighborhood that we should all be very proud to preserve. Thank you very much. Chair Sanchez: Thank you. Ma'am, before you walk away from the podium, I believe there's a question by the Vice Chair? Ms. Landry: Yes. Vice Chair Spence -Jones: Yes. Ma'am, you mentioned something about a letter -- I believe that Mr. Fernandez in the beginning said that there was -- there -- that this -- that there was no need to actually build something bigger and that you actually had proof or documentation of -- from a Ms. Landry: That he sent a letter -- Vice Chair Spence -Jones: -- having a letter stating that the amount -- Ms. Landry: -- to the Board, yes. Vice Chair Spence -Jones: Right. Do you have a copy of that with you today? Ms. Landry: I can get a copy for you. City ofMiami Page 99 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Vice Chair Spence -Jones: Yeah. I just would like to see it anyway. Ms. Landry: Okay. All right. Vice Chair Spence -Jones: Okay. Thank you. Ms. Landry: Thank you. Thank you for your consideration. Chair Sanchez: Thank you. Next speaker, please. Mr. Recio: Just to clam, that letter was -- that the property was up for sale, not that -- Chair Sanchez: Okay. Mr. Recio: -- he was trying to redevelop. Chair Sanchez: All right. Ma'am. Dolly Maclntyre: Good morning. My name is Dolly Maclntyre. I live at 409 Vizcaya Avenue, in Coral Gables. One of the primary arguments that you'll hear today is that the designation is a taking of property rights. Well, so is zoning. I can't do what I want to with my property. The Zoning code tells me not only exactly how I can use it; how far I can be from a lot line, how high I can be, and what color I can paint it. But we do this -- we accept this for the greater good. There is adequate legal precedent to support here historic designation without owner approval. The Supreme Court -- andl have a copy of that case if any of you would like to see it -- upheld the concept of preserving historic landmarks for the greater good, so you have very firm legal precedent under which to uphold this designation; and to reverse it at this point in time would be a very bad precedent for the entire community. And remember that last year Miami was declared a Preserve America City, so let's keep that designation. Chair Sanchez: Thank you, ma'am. Commissioner Sarnoff Ms. Maclntyre, could l just see the case? Chair Sanchez: Well -- all right. Next speaker. Elvis Cruz: Elvis Cruz, 631 Northeast 57th Street. Chair Sanchez: Hey, excuse me. Let's -- if we're done with the presentation, can we just get it out of the way, please? Thank you. Or put it down. Thank you so much. Okay. Yes, sir. Mr. Cruz: Thank you, Commissioner. As most of you probably know, I do not live in Ye Little Wood. I live in Morningside. Morningside was declared a historic district on December 20, 1984. Next year we'll be celebrating our 25th anniversary as Miami's first historic district. Our historic designation is the best thing that ever happened to our neighborhood. I'm sure you Commissioners have been through our neighborhood, and you can see that it was certainly worth protecting. Much of old Coconut Grove predates Morningside. This particular house built in 1902 is about 20 years older than my entire neighborhood. Old Coconut Grove is a gem that should be protected. Oddly enough, the appellant's attorney gave a splendid speech about the history of the house and the area, and he certainly convinced me that this house should be protected as well as the rest of the neighborhood. The only downside that we have discovered to being a historic district is that the rules of exactly what we can and cannot do are not conveniently available, conveniently available. So in addition to requesting that you protect this home today, I'm asking this Commission to please provide funding so the City staff can create a very simple, easily understood booklet with simple designs, drawings, diagrams and pictures City ofMiami Page 100 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 letting us all know exactly what we can and cannot do in a historic district. Commissioner Sarnoff, I know from time to time you hear rumblings that all began because people didn't know exactly what the rules were. So please, if you could make that happen, that would be a wonderful thing; and please preserve this house and protect Ye Little Wood. Thank you. Chair Sanchez: Thank you. Next speaker. All right. Why don't we do something? Let's clear both podiums, and we could line up here, and we could line up here, and that way, we could get the speakers up quicker. Lydia Thomas: Good morning, Commissioners. My name is Lydia Thomas. I am a resident of Ye Little Wood, 3820 Wood Avenue. I am also a licensed real estate broker in the state of Florida for 27 years. I have nothing planned for today, except to speak from passion. I have previous experience with historically -designated neighborhoods in Winter Park, Florida, Hyde Park, Tampa, as well as my home in Ye Little Wood. My thought process is that every experience I have had with a historically -designated home has shown that, in the worst of recessions and times where the market has turned, historical homes have always still been desirable and in demand. We've just gone through, on January 16, a designation on Miami Beach, and we're very excited about that because we will see property values increase, but most importantly, this is my home and I'd like to make sure that the character of the neighborhood, as Mr. Little had requested, be maintained. Thankyou so much. Chair Sanchez: Thank you so much, ma'am. Next speaker. State your name and address for the record. Barbara Anger -Diaz: My name is Barbara Anger -Diaz, andl live at 3920 Wood Avenue; and I've been the happy owner of a wonderful house, the Arango House, in that little enclave for the last three years. We came here in June of 2004 from California to look at houses. My husband wanted to look at Coral Gables; I wanted to look in the Grove, and we looked at many houses in both places; but there was one house listed in Ye Little Wood that held out for. We'd come here quite a few days before and it was not available for looking at until Sunday. Well, once I walked in, I immediately realized this was quite a viable house for us and much better than the photograph advertising it; and it's a beautiful Baja -style architecture with a yard not too big, but in a lush, beautiful neighborhood full of trees and shrubs. Once we closed and came back to Miami, we discovered that we also had wonderful neighbors, not just intelligent and interesting, but those that seem to value conservation of the character of the neighborhood. We had come to Miami six years earlier in the possibility of moving here and had looked at a lot of houses and had actually settled on a house right next door on Douglas Avenue, and that's when I learned about Ye Little Wood. There was no house for sale at that time, so that when we came back, Ye Little Wood immediately popped into my head and that's why I kind of said to my husband, let's not decide anything until we see that house. I -- as a child, I lived in Mexico City, and my grandfather was an art and antique dealer; andl remember where he literally would cry over the destruction of buildings that were 200, 300, 4 year [sic] hundred and more years old. Today they have a designation of historical center of that whole district, and obviously, much money is going into the preservation and repair. A lot of repair needed because of abandonment. Chair Sanchez: All right. Ma'am -- Ms. Anger -Diaz: Yeah. Chair Sanchez: -- I have to be very, very fair here. Ms. Anger -Diaz: Okay. Chair Sanchez: Is there anyone who is willing to proffer their two minutes to the young lady to continue? Thankyou so much. City ofMiami Page 101 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Anger -Diaz: Okay. I'll try to be fast. Chair Sanchez: Two more minutes, ma'am. Ms. Anger -Diaz: Anyway, people luckily woke up in time, and so the government, politicians, businesspeople and private people interested in the preservation and conservation of that wonderful district, but what's gone is gone and that's made my point. Andl want to just close quickly. I think that historical designation is important far beyond our generation, and so the fences that are there are really not important because it's a legacy that we pass on to future generations. And if we just pay attention to those kinds of details that are relevant for us right now, we wouldn't have much left for future generations. Thank you very much. Commissioner Sarnoff How do we compare to California, by the way? Ms. Anger -Diaz: Excuse me? Commissioner Sarnoff How do we compare to California? Ms. Anger -Diaz: Wonderful. Commissioner Sarnoff Okay. Ms. Anger -Diaz: Wonderful. It is wonderful, but this is fabulous. Chair Sanchez: Thank you. You know, California -- what's the saying for Cali? Come -- yeah, come and -- Ms. Anger-Diez: And this was near San Francisco. It was wonderful, but this is great. Commissioner Sarnoff Wow. I know -- Chair Sanchez: Come and live in Florida. Commissioner Sarnoff -- some real estate people would like to get some testimonies. Chair Sanchez: "Come and Live in Florida." That's what Cali stands for. Ms. Anger -Diaz: But not so good anymore in comparison, right? Yeah. Chair Sanchez: Thank you. Arva Parks: Mr. Chairman, my name is Arva Parks, and I live at 1601 South Miami Avenue, City ofMiami. I started my career in history by doing my master's thesis on the history of Coconut Grove, so I feel like it's kind of my first child; andl am very impressed always with any effort to keep it special ambience. We all know it has it. We all know it's important to keep it. And this preservation ordinance that the City ofMiami passed is one of the efforts to protect Coconut Grove, but all of the City ofMiami. A few weeks ago, I was here when Villa Regina came up. You wisely did not deny the designation, andl think you all know now that it has been sold and it's going to be restored. It was actually sold for more than the developer who wanted to tear it down had offered, but the main issue today is, one, you have an ordinance; you passed the ordinance, andl think the biggest question for all of us to ask is, does this meet the criteria of your ordinance? It absolutely meets the criteria of your ordinance, both for Mr. Little and the whole development of Ye Little Wood, and particularly, the history 1902. Think about this. Coconut Grove is much older than Miami, we know, but 1902, even in Coconut Grove, is City ofMiami Page 102 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 becoming like snail darters. There's not a whole lot of 1902s left. Often one house -- I happen to have lived in a historic -designated house in a community that was later made a district in another city. One little house is often like lighting one little candle because you will -- people will see the value, and now with the addition of the tax relief for ten years, it is not only -- people are starting to look for historic houses for that reason. We were named a Preserve America City. I'm very proud of what the City ofMiami has done since the ordinance was created. It is not a voluntary ordinance and that's not part of it, and I'll stop. So thank you very much. Chair Sanchez: Thank you. Unidentified Speaker: I'll give my two minutes. Chair Sanchez: I think she's done. All right. Next speaker, please. Carol Flynn: Good morning. My name is Carol Flynn. I reside at 3810 Wood Avenue. I'd also like to state there was a lot of talk about the interests of some of the neighbors and our self-serving interests. First of all, I am very interested in the neighborhood. I am in their self-serving purposes, but also I'm a native Miami. I don't know how many of there [sic] are here, but I've lived here my whole life. I went away to school, but I came back. I love Miami. I started as an activist when I was six as a Brownie, andl sold Girl Scouts [sic], andl helped people; so I've always been around. I love the neighborhood. My children can play in the street, like I used to when I was a child. You can't do that everywhere. This house is a true gem. I want to preserve it. I want my children to grow up and say, wow, this is what Miami was all about once. Now, I was very on good friendly terms with Mr. Goldberg. I'm really surprised he's never come to one of these hearings. We have all been here every time. So I guess when you talk about self-serving interests, you also have to show through action, not through words, or hiring people, I guess. I spoke on behalf of the neighborhood to the villagers. We did receive the grant. We care. When I used to walk my dog with Mr. Goldberg's dog -- again, we're -- our dogs were friendly until, unfortunately, his dog passed away mysteriously, but I -- it was very unfortunate, but he said to me directly -- andl guess I can say this because it's not hearsay. He said to me he -- when he put the house for sale, he didn't care what happened. He doesn't care. He's not there. We care. So I hope that means something to all of you. Thank you. Chair Sanchez: Thank you, ma'am. Next speaker. State your name and address for the record. Becky Roper-Matkov: I'm Becky Roper-Matkov, executive director of Dade Heritage Trust, Miami's largest historic preservation, nonprofit, and our headquarters is 190 Southeast 12th Terrace, in downtown Miami. We -- on behalf of Dade Heritage Trust, I want to urge you to uphold this historic designation. Not only would it be a bad precedent, a devastating precedent, actually, if you reversed it, but our upcoming theme for Dade Heritage Day is "Miami's Green Spaces and Historic Places." And this example of Ye Little Wood is a perfect example of green spaces where trees are still prevalent, and it is a little enclave of beauty in what is becoming far too much of a concrete city. This we hope you will want to preserve the character of this neighborhood, not only, as Elvis Cruz said, historic neighborhood's increase in value; they maintain an ambience which is sought after by people who care about these things, which is a very -- I think now that the economy has cooled, actually you're going to be seeing more and more people look to historic neighborhoods as wonderful values, as places where neighbors care about each other; andl think you're going to find them ever-increasing in value. And one other very important aspect as a city that cares about the environment and the greening -- green building, if you look at a building, a historic building, it is the greenest building there is. Chair Sanchez: All right. Let me -- Ms. Roper-Matkov: So -- City ofMiami Page 103 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: No, no, no, no, no. If you want to continue -- hold on. I believe the lady back there wanted to give you her two minutes, andl thank you for that, ma'am. So you got more time, if you want. Ms. Roper-Matkov: Well, I just want to encourage you to preserve this very important landmark and to realize that you are doing something for the environment when you keep a house in place and not demolish, andl also have my magazine for you just in case you missed it last time. Chair Sanchez: Thank you so much. Ma'am, you're recognized for the record. Pat Livingstone: My name is Pat Livingstone. I'm at 3839 Wood Avenue. And I'd like permission to put up a picture of the house because I think, in some ways, it speaks for itself. Chair Sanchez: Yes, ma'am. Ms. Livingstone: I actually live directly behind this house, andl can actually see the house from my house; so I may be one of the people that gets to enjoy it. When I first -- when we were first looking to relocate and moving from further south in Dade County, definitely wanted to live in the Grove. We're actually looking for a historic house and looked at this as our first introduction to Ye Little Wood. Unfortunately, it was not to be -- and this was prior to Mr. Goldberg purchasing the house. There was a fence around the house at that time and the property was -- and the house was visible from the road in Ye Little Wood. The house that -- the fence that is currently at the house that prohibits people from seeing it as clearly as we would like was erected by Mr. Goldberg after he purchased the house. The actions of the community -- and again, I've lived there a little over four years, andl have to tell you that this community came together to protect a tree that is on my property in a way that they haven't even seen the actions that this group can do to protect something in this community. The tree is over 75 years old; was likely put there by Fairchild, and the community came together well before anything to do with Ye Little House to protect this tree when my house was being built and did a wonderful job of protecting it, and is the reason -- one of the reasons that we purchased the house that we live in now because of the tree that the community came together and saved. So I just want to say this is a magnificent community. It's very unique. This house is integral to this community, andl encourage you to preserve it. Just take a look at it. Commissioner Sarnoff I didn't catch your name. Ms. Livingstone: Name -- my name is Pat Livingstone. Commissioner Sarnoff Pat, how long didMr. -- What's his name? Ms. Livingstone: Mr. Goldberg? Commissioner Sarnoff -- Goldberg. How long didMr. Goldberg live at this house? Ms. Livingstone: He hasn't lived there for at least a year. I don't know -- his attorney may be able to tell you exactly, but he hasn't lived there for over a year. Commissioner Sarnoff And how long has this fence been erected? Ms. Livingstone: Anybody remember? Two thousand and three. I'm -- again, I'm just -- I'm -- I couldn't give you an exact date, but it was definitely after Mr. Goldberg purchased the house. Vice Chair Spence -Jones: You can go. Ute Vladimir: Okay. I'm Ute Vladimir. Since 1988I've lived at 3802 Little Avenue in a 1916 City ofMiami Page 104 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 mission -style house, which is immediately to the east ofMr. Goldberg's property, the Little House, and it pains me greatly that an absentee owner has decided to appeal the historic designation of the house. For our sense of community, most of our neighbors value the older houses as a connectors and rooters in our neighborhood and to our history. And I'd just love to know that Mrs. Little would stand on her porch and declaim Shakespeare. I'd love to know that Janet Reno's first -grade teacher, Mrs. Keller, owned the house that my husband andl live in now; and even to contemplate the demise of the original and most appealing house in the neighborhood is just almost too much to bear. Mr. Goldberg's appeal has made much of the accessibility issue. Like to point out that there are many other historically -designated houses in Coconut Grove that have either no access or limited access. For example, the Pagoda at Ransom Everglades, El Jardin at the Carrolton School, and the first schoolhouse, which is now at Plymouth Congregational Church. Ye Little neighborhood, however, does have access, as was mentioned earlier, on Tuesdays and Fridays. Access, though, has no bearing whatsoever on the historic designation. The criteria set forth in Chapter 23 of the City Code do not mention access, so access as a deciding factor for historic designation is a complete nonissue, andl therefore urge you -- I really expect you to reject the appeal and uphold the historic designation of the original Little House in Ye Little Wood. Thank you. Chair Sanchez: Thank you, ma'am. Any other speakers on the item? If not -- okay. Barbara Lange: I'm going to be quick, and you're going to love me. I'm here. My name, Barbara Lange. I'm 3495 Main Highway, Coconut Grove, and I'm here to support the issue; and I think everybody else has said everything that needs to be said. Chair Sanchez: Great, as always. Ma'am, we -- you can't communicate with her on the dais. I apologize. It's just the procedures I have to follow. Vice Chair Spence -Jones: Mr. Chairman, she was actually submitting the letter. Do you want to have it go to the --? Chair Sanchez: And once again, all documents presented to the Commission has to go through the City Clerk, please. Okay? I'm just trying to run -- Ms. Landry: Thank you. Chair Sanchez: -- the most professional meeting as possible. All right. Ma'am, would you be the last speaker? Unidentified Speaker: Oh, did Barbara speak? Chair Sanchez: Okay. Well, let's -- those that -- okay. All right. Ma'am, you are recognized for the record. Counsel, I -- first of all, you did not reserve any time for rebuttal, andl don't believe there's any rebuttal on appeal; so there is no rebuttal. So let's get the speakers lined up and then we'll close the public hearing; and then it'll come to the Commission for a vote. Ma'am, you're recognized for the record. Joan Morris: Joan Morris, 3803 Little Avenue, Ye Little Wood. The Little House is 106 years old. This house was built prior to almost all of the historically -designated properties in Coconut Grove; Vizcaya, Plymouth Congregational, El Jardin, Housekeepers Club, Coconut Grove Playhouse. The building we are in today was originally Pan American Airways, Miami International Airport, built in 1935. In 1935 The Little House was 33 years old I'd like to read a poem. It's fast. `7 watched them tear a building down, a gang of men in a busy town, a ho heave ho and a lusty yell; they swung a beam and a sidewall fell. I asked the foreman, are these men skilled and the kind you'd hire if you were to build? He laughed and said, why, no, indeed; just common laborers is all need. They can easily wreck in a day or two that which took master City ofMiami Page 105 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 builders years to do." If historic designation is removed, the fate of The Little House will surely be in the path of the ubiquitous march of the bulldozers. Historic preservation is the ultimate recycle. I was sworn in, and I'm going to say something that is the truth. When Josh -- andl like Josh as well -- put his house on the market, I said to him, "Josh, did you know that you could apply for historic preservation?" He said, "Joan, I have no control over what happens to the house, andl really don't care." He then purchased the property adjacent, of which I have a picture, and he put both properties on the market at that time. The Massin House was demolished. There was no notice to neighbors. That -- whatever that protection is didn't work. And there've been two houses demolished since the historic preservation. Commissioner Sarnoff Is the Massin House the one that he purchased? Ms. Morris: No. The Massin House is -- I'm only mentioning it because the attorney was speaking of all the layers. And the Massin House was demolished and it definitely was historic; and another one was demolished, the Mangon house. Two houses have been demolished within the past 12 months with no notice to neighbors. Thank you. Chair Sanchez: Thank you, ma'am. Next speaker. Carol Kniseley: My name is Carol Kniseley. I live at 3877 Little Avenue, across the street from Josh. I've lived there for 36 years. And in spite of extensive renovations over many owners, that house still appears somewhat as the original Little House because I know what that looked like, because I was there. It has satisfied some of the objectives of a historic designation, and the pursuant efforts by some neighbors, not all -- of course, not including myself -- over the objections of a property homeowner is admirable on one sense. I spent 20 years down here trying to preserve the Barnacle. I was one of the five founding members of that society. However, since many of you have not heard of Carol Kniseley, I'm quite sure there's no historic status to my home as there might be to Marjory Stoneman Douglas's home. I'm in sympathy with upholding unique character and architecture of the Grove. Our street has been compromised already. Many of the peo -- some of people here speaking live in what I call the faux chateaus andMcMansions. Of course, they don't want a matching faux chateau next to them because that will ruin their site. Who says this is going to happen? George -- I mean, Josh was, in fact, quite happy and feels extremely distant from his neighbors by them forcing this designation over his objection. This action sets a disturbing precedent for the stated aim of some members at which I was at a meeting, maybe two years ago, to apply for a historic designation overlay for the entire neighborhood. At that time I said I'd go along with that if you put that same designation over the entire Coconut Grove area. I wonder how the realtors will react. I've had the occasion in the past few weeks to speak to a few realtors to see what the value of my home is. None of them thought a historic designation would speed up a sale in this cold market; it would only put another chill on that. I intend to stay in my home until the day I die. That won't be easy because of the taxes. However, it is a constitutional right to buy property and to sell it. I do not wish -- if, for unforeseen reasons, I cannot stay in this house, that I be allowed to sell my property free of more restrictions with consequences. There are consequences to every single piece of property. I realize that one of mine is one of the ones they discussed because it's a full acre on a termite castle, which I share. Chair Sanchez: In conclusion, ma'am. Ms. Kniseley: In conclusion, I don't like -- I have no objection to trying to preserve Coconut Grove history. However, I support the rights of a property owner to sell at the best fair market value of their home, since that is one of our most important investments for our lifetime. I wish that that lady, the City planner who came there at a Ye Little Wood Association meeting, could have assured me that none of this would affect the value or -- of my property or the -- instead of adding one more and imposing another layer of regulatory oversight on a private property, on a private gated steep with no public access. There are -- she mentioned cards that you could walk City ofMiami Page 106 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 in. No, no, no, no, no, you cannot. The garbage trucks have a special code. The fire trucks have a special code. Ye Little Wood people don't want people coming in Ye Little Wood. I fought the gate, but then I didn't care who drove down my street. There's no public asset -- access. Chair Sanchez: Thank you, ma'am. Ms. Kniseley: Thank you. Chair Sanchez: Thank you so much. Ms. Kniseley: Oh, this is my husband. Does he get two minutes? Unidentified Speaker: Yeah. I'm giving my two minutes to her. Chair Sanchez: I think she's taken up your two minutes already. Ms. Kniseley: She took my two minutes. Andl thank you for listening. Chair Sanchez: And have been very generous with the time. Ms. Kniseley: And my fears are for the precedent. Chair Sanchez: Thank you, ma'am. Ms. Kniseley: The neighbors are very active in their wishes in affecting my future. Chair Sanchez: Thank you, and thank you for being so understanding. Yes, sir. John Powers: John Powers, 3803 Little Avenue. The gates are open two days a week. The garbage trucks don't have special codes to get in. I just wanted to comment. The comment that Joan Morris made about Josh saying he has no control over who purchases the property and what's going to happen to the house, I was there listening to it. He did not care. And so the question before the Commission today is, will a part ofMiami history continue to live or will it be relegated to a dump? Thank you. Chair Sanchez: Thank you. All right. We do have one last speaker, and then, counsel, you'll be afforded two minutes for final statements and the public hearing is closed, coming back to the Commission for a vote. Thank you. Gene Meehan: Thank you. My name is Gene Meehan. I live on 3900 Wood Avenue. I was asked by the neighbors to bat cleanup here, and my job was to sit at the end of the row and get little pieces of paper from people who forgot to say things, but I have nothing in my hands. My neighbors did a wonderful job and they spoke passionately and truly about how we feel. I've been in your position for many years. I sat on a Planning Commission in Stowe, Vermont. Stowe is a classic New England town with historic designation in its village, and many, many houses there. And for years and years and years, as I was on the Commission, we were approached by developer after developer with lawyers to do everything you can think of. Every developer felt it was their -- in their best interest to exploit our town. We looked at the biggest house on the ridge line and a bigger one after that and strip malls and franchise stores and K-Marts and McDonald's, and one by one we had the courage and the vision to protect the people and the town. We would sometimes pull some archaic rules that we could find to protect ourselves. McDonald's, for example, bought a beautiful old barn on the mountain road, and we tried to protect it; and they sued us, and they sued us again. And we let them open their business. And it was the first McDonald's probably in the world where you were served right at City ofMiami Page 107 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 your table. We pulled some archaic rule that said -- in our town zoning that said there's no counter service in Stowe, so McDonald's would have waitresses, waiters go to the table and take their orders. And you know what happened? The town voted after that. In two years, it was out of business. I love shopping at the new Home Depot in town because there's nobody there. The town's voting on that one. This is about a developer. Let's -- we're not the first group of neighbors to come to you to fight a developer and we're not certainly the last. I'll be honest; I don't care for Mr. Goldberg. He has done some things in our neighborhood that I don't approve of. We have four platted parks in our neighborhood. Josh Goldberg tried to confiscate one. On his adjacent property to what we're talking about today, there is about a 1, 200-square foot park. Josh's opinion was, well, if you can't prove that you own it, then I'm going to take it; and he built a fence around it. We did prove that we owned it, and we took the fence down. And if you drive on Ye Little Wood, you'll see the size of this piece of property. We also have reason to believe that Josh is involved in the Gene Massin Investment Group. I would love Josh to be here today to swear that he's not, but he hasn't been to any of the meetings; andl can tell you, ifJosh were here, I'd challenge him to tell me the names of ten of the neighbors who live on this block. I don't think he can. Chair Sanchez: In conclusion. Mr. Meehan: This is not about -- this is about a neighborhood. This is not about rules and bylaws. We need you to have the courage; we vote for you to have the courage to support us. Thankyou very much. Chair Sanchez: Thank you so much. All right. Ladies and gentlemen, the public hearing is closed Counsel, you're recognized for two minutes. Mr. Recio: For two minutes. Thankyou. Chair Sanchez: A final statement. Mr. Recio: Thank you, Mr. Chair. Final statements. As to some of the misconceptions, of the houses that were demolished, none of these were by Mr. Goldberg. The house -- he had opportunity to demolish this specific house. He could have done it when he bought the property. He chose not to. He chose to restore the property. This isn't -- we're not asking for permission to demolish it. The Code is clear. I don't know how those two parcels were demolished. The Code is clear. There's -- a Class I is required under NCD-3 and under the current HEP (Historic and Environmental Preservation) Board resolution, saying that the entire neighborhood is to be reviewed, that's supposed to preserve the statues quo so that no one can do that, okay. Mr. Goldberg's not asking to demolish the house. He just doesn't want to be singled out. And if you listen to what a lot of these neighbors said, a lot of their points, people talked about the Art Deco district, about the Morningside district. These are districts. These are whole neighborhoods. We're not questioning that the neighborhood may be up for designation. We just don't want to be singled out. That's what he's appealing, being singled out and treated unfairly, treated outside away from what they're doing to the rest of the neighborhood. If he gets designated today and this effort to designate the entire neighborhood dwindles or wanes and it never goes forward, he's been singled out. He's alone out there with an added layer of process, an added burden, an added layer. He just wants to be treated the same as everybody else, and he's willing to go along with the tide with a designation for the entire neighborhood. Chair Sanchez: Thank you, sir. Mr. Recio: Thankyou. Chair Sanchez: All right. Public hearing is closed, and the item comes back to the Commissioner. Commissioner Sarnoff, you're recognized for the record. City ofMiami Page 108 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Yeah. I'd like to make, for purposes of discussion, a motion -- Chair Sanchez: All right. Commissioner Sarnoff -- to affirm the appeal. Vice Chair Spence -Jones: Second. Chair Sanchez: All right, there is a motion and a second. The item is under discussion, and you are recognized. Commissioner Sarnoff I hope I said that right. That is to uphold -- Chair Sanchez: To deny -- Commissioner Sarnoff Right, to deny the appeal and uphold the ruling by the HEP Board. Chair Sanchez: Yes. Maria J. Chiaro (Assistant City Attorney): Yes. Commissioner Sarnoff Okay. Ms. Chiaro: So it's to deny the appeal. Chair Sanchez: The ordinance -- Commissioner Sarnoff Motion to deny the appeal and affirm the ruling of the HEP Board. Chair Sanchez: I think you've cleared that. Commissioner Sarnoff Thank you. Chair Sanchez: All right. Commissioner Sarnoff That's why I'm looking at the City Attorney and she's wincing, and when she winces, I try to -- Commissioner Regalado: Not -- it's not what you said -- Commissioner Sarnoff -- be reactive. Commissioner Regalado: -- at the beginning. Commissioner Sarnoff Okay. Chair Sanchez: All right. You're recognized for the record. Commissioner Sarnoff Well, does the seconder understand that? Chair Sanchez: Yes. Vice Chair Spence -Jones: Second. Commissioner Sarnoff Okay. City ofMiami Page 109 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: There's a second. Commissioner Sarnoff It's truly -- first off with regard to the NCD (Neighborhood Conservation District), in our office we have learned that the City does not know how to properly administer the Grove NCD-3, and if Orlando Toledo were to come up here, he would tell us that I think three homes were built incorrectly while not recognizing the NCD. I'm not asking him to come up. I'm just mentioning that sometimes this City does not even understand its own laws and does not apply them correctly; and we have three homes in the Grove that are not built in accordance with that, so I don't find very much protection with regard to the NCD. I think we'll get better at it. I hope we get better at it. I know we have a new Manager that's committed to it. There's something really ironic here and that is, as we all understand green and as we all understand that we've got to have less of a carbon footprint, we continue to build buildings that are nothing more than great big refrigerators. And the true irony here is that we knew how to build buildings better in the 1910s, '20s, '30s, '40s -- probably about '50 it stopped -- that understood the circulation of air. Sometimes people called them living buildings. They understand what a jalousie window meant. They understood what a breeze meant, and somehow that got lost, probably circa 1960, '70, '80, and certainly in the '90s now with the McMansions and now with large refrigerated boxes that some day somebody's going to have to pay a future FP&L (Florida Power & Light) bill in 10 or 15 years that may be $2, 000 doesn't seem unreasonable because you don't have windows that open and don't circulate air. So there's an irony at work here, and that is that -- the irony is that we're building probably just the opposite of the way we should be building to reduce our carbon footprint. Some have come here today and have said, laissez-faire, leave it alone. What business is it of government to decide what I do with my property? Well, government has been in that business, and it's the business it does belong being in. If you have ever lived in a city that has no zoning rules, you know what it is to live in that city. I used to live in New Orleans; beautiful city, but if you went up and down Airline Highway, your house could be right next to a used car lot. There was no zoning in place at all in parts of New Orleans, so parts of New Orleans were absolutely horribly zoned, and if you haven't seen it, I still think it still exist. So laissez-faire doesn't work. We need to have a good set of rules and regulations that will protect property. It's my understanding, Mr. City -- Madam City Attorney, who's sitting there, that the two criteria we have to decide is is the property associated in a significant way with the life of a person important in the past? I believe counsel for the appellant actually said it was. The second question -- if we choose to answer, because we only have to answer one -- is the property embodies those distinguishing characteristics of an architectural style or period or method of construction? And equally, once again, counsel answered that question in the affirmative, so I don't even have to listen to what the neighbors had to say. And l just want to thank Ruth Lardner [sic], Joyce Landry, Dolly Maclntyre, Elvis Cruz, Lydia Thomas, Barbara Edward -Diaz, and Arva Parks, Carol Flynn, Becky Macaro [sic], Pat Livingstone, Ms. Vladimir I heard, and Barbara Lange. I want to thank you all for coming here, John Powers, Gene Meehan and Joan Morris and Carol Miseley [sic], excuse me, for coming here. Two of you expressed your opinions about Constitutional rights of not being forced to have this declared a historic designation, and fourteen of you came here in favor of what the ordinance says. It is not a voluntary ordinance. I think it's a relatively easy decision. I think you've heard pretty clearly that this is accessible. I think you heard the only reason that there's a fence up is because the owner put the fence up, which made it an inaccessible and probably partially blocked the view of others to see. I think it's important that we get back to the basics in Miami, andl think one of the things that the citizens have an expectation of us and that is to protect the neighborhoods. This is a mechanism and a means of protecting a neighborhood and a historic house, and if this is the candle that we first light to light the rest of the Menorah and it becomes a lighted community that is fully historic, then so be it. But this particular building is, by anyone's estimation, a historic building of consequence to Coconut Grove, and if it's of consequence to Coconut Grove, it had better be of consequence to the City ofMiami. I believe that we have woken a sleeping giant, and that is the people of Miami. I think what we have done in the past number of years with the building that we've built City ofMiami Page 110 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 is we're saying -- they're saying to us enough is enough. And look at the McMansions you continue to build. Look at your carbon footprint. This is wrong for so many reasons that, inevitably, we may be our own undoing. Maybe not our generation, but I will tell you that your grandchildren may not even be living in Miami because it may not even be habitable in the year 2070, but that's for another generation. But if we're not good stewards with our land, if we don't take care of what we have here today, in 2070 none of us may be living here, and that's something that each one of us has to bear with our own conscience. So with that being said, I hope my fellow Commissioners will respect the Grove and will respect the HEP Board's determination. Chair Sanchez: Commissioner Regalado, you're recognized for the record. Commissioner Regalado: Thank you, Mr. Chairman. I think it's a pretty easy decision to make. I was listening to all the debate, andl was thinking, well, with this frenzy in Miami -Dade County and Miami to build museums and keep things that are historic, why are we debating here for such a long time if we should let a historic place go away? It doesn't make sense. Andl think that, in the name of progress, many have done wrong to many historic places; andl just hope that this morning the people will take notice throughout the City and throughout Miami and respect more the historic places. I remember a friend of mine used to live in Madrid in one of the oldest building in Madrid and that building, one of Spain's foremost writers used to live there, and he used to live on the third floor; and once I visited him and I said, oh, my God, you have to just walk down the stairs and bring the groceries and all that. Can you guys not put an elevator or something like that? Says, no, no, no, no, no. We -- if we want to live here, we have to keep it as it was. So if we choose to live here, we have to go up and down the stairs, and this is the price we need to pay for the way that we want to keep something historic. And Miami is a city practically without history, and you know, in the name of progress, we're killing the little history we have. So thank you for making the motion, Commissioner; it's your district, andl think the people are served. Chair Sanchez: Vice Chairman [sic], you're recognized for the record. Vice Chair Spence -Jones: Yes. The only thing want to really add is, as you know, in my district, in District 5, I do have historic -based neighborhoods, andl realize how important it is for these particular neighborhoods to be protected. As a matter of fact, they're the heartbeats of our city. Buena Vista, Spring Gardens [sic], Orchard Villas [sic], Overtown are areas within District 5 that we fight very hard to make sure that the character of those neighborhoods don't change. I just want to say to Kathleen and -- Kathleen, if you can just come forth just so that I can get some clarity on it. Kathleen has been doing a outstanding job protecting at least the neighborhoods within my district, andl really appreciate and value all the work that she's been doing, along with the HEP Board. Elvis, I -- did Elvis leave? Elvis, you haven't left the room, okay. I agree with Elvis, though, that one of the challenges that we -- yeah, I have a question -- have, especially in like the Buena Vista, Spring Gardens [sic] area, and Orchard Villas [sic] area, that many people do purchase homes in those particular communities and don't really understand what they can and cannot do, so I thought that Elvis's comment was a very good one; andl think it's something that we should be moving in the direction. I wanted to ask you the question, is that something that we're doing now to put in place for -- Ms. Kauffman: It's something -- Vice Chair Spence -Jones: -- those particular neighborhoods? Ms. Kauffman: Yes, ma'am. It's something we've already done. We have two new fact sheets, the benefits of living in a historic district and also an individually designated property. Those are available on our Web site, which is wwwhistoricpreservationmiami.com [sic]; and we also have the design guidelines up on the Web site. City ofMiami Page 111 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Vice Chair Spence -Jones: For all of those historic -based neighborhoods? Ms. Kauffman: Yes. Vice Chair Spence -Jones: And how -- the only way you can get that information is pulling it or downloading it? Is -- I mean, do you guys have -- have you put anything in place to send it out to all the residents or the neighborhood associations in those groups so that they can circulate it? Ms. Kauffman: We have not done that yet, but that's an excellent idea. Vice Chair Spence -Jones: Yeah. I think -- Ms. Kauffman: Just to do a big mail -out. Vice Chair Spence -Jones: -- we need to do that because people buy these homes and they really don't understand what they can and cannot do in the areas, and then it becomes a fight between the neighbors and the new people that are trying to move in. So I would just like to put on the record that we definitely do that. Thank you. Ms. Kauffman: You're welcome. Chair Sanchez: All right. Commissioner Gonzalez. Commissioner Gonzalez: (INAUDIBT,F). Chair Sanchez: All right. You know, folks, there's a saying that says that behind every great man there is a great woman, and we'll get to that in a few seconds. This house does have history. It was built by William Little. Not only did he develop the area, but he built that house; and was the first mayor of Coconut Grove. But he married a lady named Nell, and she was famous, herself, as a prominent Shakespearean dramatist at that time, and in those days there weren't TVs, there weren't HBO (Home Box Office), there wasn't Showtime, so that played a very important part in the history ofMiami; and history has to be tangible. And when I say that, it is great to look at books and see history in pages and in films, but we have to be able to feel, touch, and walk through halls of great establishments that have made our city history. The biggest sin of all has been that we have destroyed a lot of that history, and someone said it best when they went up there and they wrote -- they made this statement: When it is gone, it is gone forever. And this city's only 110 years old, and can tell you, we've made some mistakes in the past that we can't redo again. But this is a perfect opportunity for us to preserve history and show history, and when it comes to this, not only do I do my research on these matters, but I also have to take into consideration the recommendations of the Historic and Environmental Preservation Board which approved this. And based on the arguments that have been heard here today, I do believe that it does meet the criteria for designation, and therefore, I also support the vote to deny. All right. There's a motion and a second. Madam Clerk, roll call. Ms. Thompson: This roll call is on your resolution. Commissioner Regalado? Chair Sanchez: Oh, it's a resolution? Ms. Thompson: Yes. Chair Sanchez: But do roll call. Ms. Thompson: Okay. City ofMiami Page 112 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: Yes. Vice Chair Spence -Jones: Yes. Ms. Thompson: Commissioner Gonzalez? Commissioner Gonzalez: Yes. Ms. Thompson: Vice Chairman [sic] Spence -Jones? Vice Chair Spence -Jones: Yes. Ms. Thompson: Commissioner Sarnoff? Commissioner Sarnoff Yes. Ms. Thompson: Chairman Sanchez? Chair Sanchez: Yes. Ms. Thompson: The resolution has been adopted denying the appeal and affirming the HEP Board. Chair Sanchez: All right. Applause. Mr. Recio: Thank you for your time, Commissioners. Chair Sanchez: Thank you, counsel. PZ.2 07-00783mu RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENTS, APPROVING WITH CONDITIONS, A MAJOR USE SPECIAL PERMIT PURSUANT TO ARTICLES 13 AND 17 OF ZONING ORDINANCE NO. 11000, AS AMENDED, FOR THE OFF BRICKELL PROJECT, TO BE LOCATED AT APPROXIMATELY WEST OF BRICKELL WAY ON SOUTHWEST FIRST AVENUE, SOUTH OF SOUTHWEST 13TH STREET (CORAL WAY) AND NORTH OF SOUTHWEST 15TH ROAD, MIAMI, FLORIDA, TO CONSTRUCT A MIXED -USE PROJECT COMPRISED OF APPROXIMATELY 153 FEET, 8 INCHES IN HEIGHT WITH A TEN -STORY HOTEL TOWER WITH 213 HOTEL UNITS AND APPROXIMATELY 138,830 SQUARE FEET OF HOTEL FLOOR AREA, A SEVEN -STORY OFFICE TOWER WITH APPROXIMATELY 128,807 SQUARE FEET OF OFFICE FLOOR AREA, AND TWO STORIES OF RETAIL WITH APPROXIMATELY 101,402 SQUARE FEET OF RETAIL FLOOR AREA; AND APPROXIMATELY 414 TOTAL PARKING SPACES; MAKING FINDINGS OF FACT AND STATING CONCLUSIONS OF LAW; PROVIDING FOR BINDING EFFECT; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. City ofMiami Page 113 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 PAB - ITEM #4 - 07-00783mu-Off Brickell.pdf 07-00783mu Special Exception Fact Sheet.pdf 07-00783mu Special Exception Analysis.pdf 07-00783x ZB Reso.PDF 07-00783mu CC School Impact Review Analysis.pdf 07-00783mu PAB Reso.PDF 07-00783mu CC Legislation (Version 2).pdf 07-00783mu CC Fact Sheet.pdf 07-00783mu Outside Cover.pdf 07-00783mu Inside Cover.pdf 07-00783mu Table of Contents.pdf 07-00783mu Introduction.pdf 07-00783mu City of Miami Application for Major Use Special Permit.pdf 07-00783mu Legal Description.pdf 07-00783mu Special Permit Requests.pdf 07-00783mu Owner List.pdf 07-00783mu Disclosure of Ownership.pdf 07-00783mu Ownership Affidavit.pdf 07-00783mu Miami -Dade County Printout Property Deed.pdf 07-00783mu Ownership List.pdf 07-00783mu State of Florida Corporate Documents.pdf 07-00783mu City of Miami Zoning Atlas Map.pdf 07-00783mu City of Miami Future Land Use Map.pdf 07-00783mu Aerial Location Map.pdf 07-00783mu Project Principals.pdf 07-00783mu Project Data Sheet.pdf 07-00783mu Article II Project Description.pdf 07-00783mu Article III Supporting Documents.pdf 07-00783mu Survey of Property.pdf 07-00783mu Site Plan.pdf 07-00783mu Site Utility Study.PDF 07-00783mu Economic Impact Study.PDF 07-00783mu Architectural Drawings and Landcape.pdf 07-00783mu Traffic Impact Analysis.PDF LOCATION: Approximately West of Brickell Way on SW First Avenue, South of SW 13th Street (Coral Way) and North of SW 15th Road [Commissioner Marc David Sarnoff - District 2] APPLICANT(S): Judith A. Burke, Esquire, on behalf of Coral Station Ltd. FINDINGS: PLANNING DEPARTMENT: Recommended approval with conditions*. PLANNING ADVISORY BOARD: Recommended approval with conditions* to City Commission on December 5, 2007 by a vote of 8-0. ZONING BOARD: Recommended approval with conditions* of a Special Exception to City Commission on September 24, 2007 by a vote of 9-0. *See supporting documentation. City ofMiami Page 114 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 PURPOSE: This will allow the development of the Off Brickell project. Motion by Commissioner Sarnoff, seconded by Commissioner Gonzalez, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 3 - Commissioner Gonzalez, Sarnoff and Sanchez Absent: 2 - Commissioner Regalado and Spence -Jones R-08-0047 Chair Sanchez: PZ.2. Let's try to get some of these out of the way that are noncontroversial so we could take on -- when we get back -- this will probably be the last item, all those of you that had been here. We'll be back at 1: 30. We will start at 1: 30, so enjoy your lunch at Scotty's. Unidentified Speaker: Noncontroversial; one more? Chair Sanchez: No. PZ. 2, and we'll come back. Scotty needs your business. All right, PZ.2. Roberto Lavernia (Chief of Land Development): PZ. 2 is a Major Use Special Permit for the Off Brickell project. The Planning Department is recommending approval with conditions. I'd just like to remind you that there was a previous project approved for this specific site and this second project that they are requesting the approval today is much less intense than the previous one. So this is a Major Use. I'm going to put condition 11 related to design; that is the only thing that the Planning Department have concerns about it. Pursuant to the design -related comment received by the Planning director, the applicant shall meet the following condition: Materials - (a) include a clear indication of what type of materials are being proposed for all four elevations of the building, including windows, balconies, and garage screening materials. This information can be submitted as a labeled color rendering. Material samples and precedent photographs are encouraged; Loading - (b) confirm the loading dimensions and turning radius requirement with the Public Works Department in order to verify the feasibility of the proposed loading arrangement; (c) the views to the loading area shall be screened with exceptional materials and treatments in order to approve the quality of the design; (d) clam the retail loading solution; (e) submit a landscape plan that specin, the species and proposed location of all plant material; C2 provide a complete tree survey of existing conditions including species, diameters and spread, including all trees in the right-of-way. Refer to the City ofMiami tree protection ordinance passed in January 2005 and indicate how tree mitigation will be achieved. Note that the City calculates the replacement by the sum of inches of tree trunk at breast height, while the County use square footage of tree canopy; (g) provide a continuous canopy of shade trees to provide comfort to pedestrian along all street frontages. These shade trees shall be aligned close to the edge of the curb in the public right-of-way (at no greater than 33 feet on center) to provide a buffer for pedestrian and for vehicular traffic. The applicant shall obtain approval and a permit from the Public Works Department for the aforementioned landscaping improvement in the right-of-way. This green space and landscaping may not be included in the calculation for meeting the green space zoning requirement. Thank you. Chair Sanchez: All right. Madam Counsel. Judith Burke: Good morning, Mr. Chairman, Commissioners. My name is Judy Burke, practicing law with Shuns & Bowen, 201 South Biscayne Boulevard, Miami. I represent Coral Station, Limited, the developer of this mixed -use project, which is now known as OffBrickell. Our team that's with us today for the presentation is Elizabeth Piotrowski from Dorsky, Hodgson, Parrish & Yue; our landscape architects, Seraj Saba, and our traffic expert, Gregory Kyle, both from Kimley-Horn & Associates. This project is being developed by the team of Harvey Taylor of Taylor Development Land Company and the hotel experts at Economos City ofMiami Page 115 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Properties, and both Mr. Taylor and Mr. Economos are here. Before I ask Elizabeth to get up and present the project, if it's your desire to see the entire thing, I wanted to give you a little bit of background This project was approved by this Commission, a Major Use Special Permit, in 2002, and it was known as Coral Station at Brickell Way; and it had 355 dwelling units, 200,000 square feet of retail, 200,000 square feet of office, and about 62,000 square feet of retail, with an FAR (floor area ratio) of approximately 700,000 square feet. Although it was completely approved, they decided to go back to the drawing boards and came up with this much less intensive project. It has a Class A office building of only nine stories with 134,000 square feet, a 213-room hotel, and 100,000 square feet of retail; so the FAR of this project is 364, 000, as compared to the 700,000 previously approved. In addition to deleting residential units, which are definitely not needed in this area, it's bringing a businessman's hotel to the area, which is much needed. The project has had complete support. It was approved by the URDB [sic] unanimously, and they said it was one of the best projects that's come before them in years. Your Zoning Board approved it on December 5. The Planning Advisory Board unanimously recommended approval. Staff is recommending approval, and representatives of two of the main homeowners associations in the area are here today and would like to speak in favor of the project. Shouldl bring Elizabeth up, or do you desire to go through the project? Chair Sanchez: Just -- if they could just come up and say they're in favor of the item, that's basically all we need. All right. At this time, what we'll do is we'll open it up to the public. Anyone from the public wishing to address this item, please step forward and be recognized. Sir, you're recognized for the record. David S. Willig: Good morning, Mr. Chairman, and good morning, Commission. I represent the Miami Roads Neighborhood Civic Association. My name is David S. Willig. My address is 263 Southwest 29th Road. Our association was familiar both with the previous project and this project, and we're quite satisfied that this current iteration of the project is a very satisfactory and appropriate use of the property; and so we do approve the project, and we do urge the Commission to approve it as well. Chair Sanchez: Thank you. Mr. Willig: Thankyou. Robert McCabe: Robert -- Chair Sanchez: Sir, you're recognized for the record. Mr. McCabe: -- McCabe, 1601 South Miami Avenue, representing the South Miami Avenue Homeowners Association. We've worked with this project back for years. The developer has spent a lot of time with us. We want to recommend this project. We particularly welcome the additional retail that's in the project and very much the reduction of the FAR. Chair Sanchez: Thank you, sir. All right. Nina West: Nina West, 3690 Avocado Avenue, Coconut Grove. I want to talk about this project and support it. This is in scale with what goes on in the neighborhood. These giant buildings in the same neighborhood would overpower that neighborhood, but the developer here has respected the neighborhood; and we could see this all over Miami if we had some political will so that extremely important neighborhoods, such as those in South Miami Avenue, are protected and that development is good development -- Chair Sanchez: Thank you. Ms. West: -- which we support. Thankyou. City ofMiami Page 116 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Thank you so much. The public hearing is closed, coming back to the Commission. We need a motion to approve with conditions. Commissioner Sarnoff Motion to approve. Commissioner Gonzalez: Second. Chair Sanchez: There's a motion by Commissioner Sarnoff to approve with conditions -- Commissioner Sarnoff With -- sorry, Mr. Chair. Chair Sanchez: -- second by Commissioner Gonzalez. No discussion on it. This is a resolution. All in favor, say "aye." The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay." Motion carries. Congratulations. Thank you so much. Ms. Burke: Thank you. Chair Sanchez: Ladies and gentlemen, the City ofMiami Commission stands in recess. We will be back at 1: 30. PZ.3 07-00789Iu ORDINANCE Second Reading 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, PURSUANT TO SMALL SCALE AMENDMENT PROCEDURES SUBJECT TO §163.3187, FLORIDA STATUTES, BY CHANGING THE LAND USE DESIGNATION OF 0.25± ACRES OF REAL PROPERTY LOCATED AT APPROXIMATELY 3624 NORTHWEST 23RD COURT, MIAMI, FLORIDA, FROM "MEDIUM DENSITY MULTIFAMILY RESIDENTIAL" TO "GENERAL COMMERCIAL"; MAKING FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-007891u - PAB Item 1 backup information.pdf 07-007891u PAB Reso.PDF 07-007891u CC Letter of Intent.pdf 07-007891u CC Application & Supporting Documents.pdf 07-007891u CC Legislation (Version 2).pdf 07-007891u Exhibit A.pdf 07-007891u CC FR Fact Sheet.pdf 07-007891u CC SR Fact Sheet.pdf LOCATION: Approximately 3624 NW 23rd Court [Commissioner Angel Gonzalez - District 1] APPLICANT(S): Michael J. Snyder, Esquire, on behalf of Miami Autoland, Inc. FINDINGS: PLANNING DEPARTMENT: Recommended approval. City ofMiami Page 117 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 PLANNING ADVISORY BOARD: Recommended approval to City Commission on July 18, 2007 by a vote of 6-0. See companion File ID 07-00789zc. PURPOSE: This will change the above property to General Commercial. Motion by Commissioner Gonzalez, seconded by Commissioner Sarnoff, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Spence -Jones Absent: 1 - Commissioner Regalado 12960 Chair Sanchez: We could possibly take up some -- okay. Are there any items, PZ (Planning & Zoning) items that anyone want to defer? Any of the Commissioners want to defer any of the PZ items? Now is the time. Why don't we -- well, I'll tell you what. We only have three Commissioners. Do we want to take up maybe a couple of items that are not controversial that we could get out of the way? Commissioner Gonzalez: I'm ready to move PZ.3 and 4, which are not controversial. Chair Sanchez: No, no, no, no. Wait, wait, wait, wait, wait. We -- let's try to get some of the -- is there anybody on PZ.3 and 4 here? Commissioner Gonzalez: No. Chair Sanchez: No? Commissioner Gonzalez: No. Michael Snyder: I'm the attorney. Chair Sanchez: You're the attorney? All right. Let's try to do some of the -- do you mind him coming back? Commissioner Gonzalez: I don't care. Chair Sanchez: Okay. Commissioner Gonzalez: You asked if we want to do something. Chair Sanchez: All right. Let's -- Commissioner Sarnoff Yeah, that's fine, we could do 5 or 6, if you want. You got a 5 and 6 ready to go. Chair Sanchez: All right. Which one do you want to take up, Commissioner Gonzalez? Commissioner Gonzalez: Huh? Chair Sanchez: Which ones you want to bring up? Commissioner Gonzalez: 3 and 4. They are not controversial. Chair Sanchez: All right. Commissioner Gonzalez: There's no -- City ofMiami Page 118 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: 3 -- Commissioner Gonzalez: -- opposition. Chair Sanchez: -- and 4, PZ.3 and 4 is a land use change, 3624 Northeast [sic] 23rd Court. Is there anyone in opposition to that item here? If not, let's go ahead and take PZ.3. Harold Ruck (Planner II): Okay. Good morning. Harold Ruck, with the Planning Department. PZ.3 is a companion item with PZ.4 for a land use -- for a zoning change. This is for a land use change. This is for consideration of amending the Comprehensive Neighborhood Plan by amending the future land use plan map for the properties located at approximately 3624 Northwest 23rd Court, Miami, Florida, from medium density multifamily residential to general commercial. This is second reading. The Planning Department recommended approval, Planning Advisory Board recommended approval, and City Commission passed on first reading. (UNINTELLIGIBLE) go into any more details. Commissioner Gonzalez: I'll move PZ.3. Chair Sanchez: Okay. Wait, wait, wait. It is a public hearing. There is a motion by the district Commissioner. Is there a second? Commissioner Sarnoff Second. Chair Sanchez: Second by Commissioner Sarnoff. It is a public hearing. Anyone wishing to address this item, please step forward and be recognized. Sir, do you want to address the item? Mr. Snyder: I'm the attorney for the applicant. Chair Sanchez: Okay. Priscilla A. Thompson (City Clerk): The name -- Chair Sanchez: All right. Ms. Thompson: -- for the record, please. Chair Sanchez: State you name and address for the record. Mr. Snyder: For the record, my name is Michael Snyder. I'm an attorney at 2775 Northeast 163rd Street, Suite 100. Chair Sanchez: All right. The public hearing is not closed yet. Anyone from the public wishing to address this item? Seeing none, hearing none, the public hearing is closed, coming back to the Commission. There's a motion and a second. Any discussion on the item? Hearing none, Mr. -- Madam City Attorney, read the record -- Maria J. Chiaro (Assistant City Attorney): An ordinance of the Miami City Commission, with -- Chair Sanchez: -- read the ordinance into the record, followed by a roll call. The Ordinance was read by title into the public record by Assistant City Attorney Maria J. Chiaro. Chair Sanchez: All right. Madam Clerk, roll call. City ofMiami Page 119 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Thompson: Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been passed on first reading [sic], 4/0. Chair Sanchez: All right. PZ.4 is a companion item. It's a -- Mr. Snyder: This was -- Chair Sanchez: -- companion item. Is there a motion? Ms. Thompson: I'm sorry. Commissioner Gonzalez: I'll move PZ.4. Ms. Thompson: For the rec -- Mr. Snyder: Second reading. Ms. Thompson: I'm sorry. Chair Sanchez: It is on second reading. Ms. Thompson: Correction for the record, second reading; it's been adopted then, 4/0. Chair Sanchez: Boy, the Attorney did jump up, huh? All right. PZ.4 07-00789zc ORDINANCE Second Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S) AMENDING PAGE NO. 19, 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 "R-3" MULTIFAMILY MEDIUM -DENSITY RESIDENTIAL TO "C-2" LIBERAL COMMERCIAL FOR THE PROPERTY LOCATED AT APPROXIMATELY 3624 NORTHWEST 23RD COURT, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-00789zc Analysis.pdf 07-00789zc Zoning Map.pdf 07-00789zc Aerial Map.pdf 07-00789zc Application & Supporting Docs.pdf 07-00789zc ZB 09-24-07 Fact Sheet.pdf 07-00789zc ZB 10-29-07 Fact Sheet.pdf 07-00789zc ZB Reso.PDF 07-00789zc CC Letter of Intent.pdf 07-00789zc Legislation (Version 2).pdf 07-00789zc Exhibit A.pdf 07-00789zc CC FR Fact Sheet.pdf 07-00789zc CC SR Fact Sheet.pdf LOCATION: Approximately 3624 NW 23rd Court [Commissioner Angel Gonzalez - District 1] City ofMiami Page 120 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 APPLICANT(S): Michael J. Snyder, Esquire, on behalf of Miami Autoland, Inc. FINDINGS: PLANNING DEPARTMENT: Recommended approval. ZONING BOARD: Recommended approval to City Commission on October 29, 2007 by a vote of 9-0. See companion File ID 07-007891u. PURPOSE: This will change the above property to C-2 Liberal Commercial. Motion by Commissioner Gonzalez, seconded by Vice Chair Spence -Jones, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Spence -Jones Absent: 1 - Commissioner Regalado 12961 Commissioner Gonzalez: I'll move PZ.4. Vice Chair Spence -Jones: Second. Chair Sanchez: There is a motion by Commissioner Gonzalez, second by the Vice Chair. This is PZ.4. It's a companion item to PZ.3. It's also an ordinance on second reading. There's a motion and a second. The public hearing is open. Is there anyone from the public wishing to address this item, please step forward and be recognized. Seeing none, hearing none, the public hearing is closed, coming back to the Commission. No discussion on the item. Madam Attorney, read the ordinance into the record, followed by a roll call. The Ordinance was read by title into the public record by Assistant City Attorney Maria J. Chiaro. Priscilla A. Thompson (City Clerk): Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been adopted on second reading, 4/0. Mr. Snyder: Thank you. Commissioner Gonzalez: All right. PZ.5 07-01152Iu ORDINANCE 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, PURSUANT TO SMALL SCALE AMENDMENT PROCEDURES SUBJECT TO §163.3187, FLORIDA STATUTES, BY CHANGING THE LAND USE DESIGNATION OF 0.66± ACRES OF REAL PROPERTY LOCATED AT APPROXIMATELY 7300 NORTHEAST 6TH COURT, MIAMI, FLORIDA, FROM "MEDIUM DENSITY MULTIFAMILY RESIDENTIAL" TO "RESTRICTED COMMERCIAL"; MAKING FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. Second Reading City ofMiami Page 121 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Item # 5 PAB - 07-011521u.pdf 07-011521u PAB Reso.PDF 07-011521u & 07-01152zc HEPB Reso.pdf 07-011521u School Impact Review Analysis.pdf 07-011521u CC Application & Supporting Documents.pdf 07-011521u CC Legislation (Version 2).pdf 07-011521u & 07-01152zc Exhibit A.pdf 07-011521u CC FR Fact Sheet.pdf 07-011521u-Submittal-Applicable Land Use Policies of the City of Miami.pdf 07-011521u-Submittal-HEP Board Resolution 2007-52.pdf 07-011521u-Submittal-Support Letters..pdf 07-011521u CC SR Fact Sheet.pdf LOCATION: Approximately 7300 NE 6th Court [Commissioner Marc David Sarnoff - District 2] APPLICANT(S): Iris V. Escarra, Esquire, on behalf of Milano at Ocean Drive, LLC FINDINGS: PLANNING DEPARTMENT: Recommended denial. HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD: Passed a resolution on October 2, 2007 to support and encourage the adaptive use of the Historic Vagabond Motel. PLANNING ADVISORY BOARD: Recommended approval to City Commission on October 3, 2007 by a vote of 8-1. Also recommended to city boards, agencies and/or officials that 1) any or all use access from NE 6th Court be restricted (no loading or unloading), and 2) limit uses of adaptive reuse by a vote of 9-0. See companion File ID 07-01152zc. PURPOSE: This will change the above property to Restricted Commercial. Motion by Commissioner Sarnoff, seconded by Commissioner Gonzalez, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 3 - Commissioner Gonzalez, Sarnoff and Sanchez Absent: 2 - Commissioner Regalado and Spence -Jones 12962 Chair Sanchez: Any other item? I believe there's another one. Lucia Dougherty: I believe 5 and 6. We want to go forward; not to defer it, but they're noncontroversial, if you want to take them up this morning. Chair Sanchez: All right. Hold on, hold on. We'll get to you. Sir, please come up and -- Unidentified Speaker: You asked if anyone here to testify. I'm on number 2, but you haven't taken number 2 yet. Chair Sanchez: Oh, no, no, no, no, no, no. We're asking for deferral. We'll get -- Unidentified Speaker: Okay. City ofMiami Page 122 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- to the agenda. We're trying to work through the agenda. All right. Lucia, which is --? Is it -- noncontroversial items, if we could get some out of the way. Commissioner Sarnoff 5 and 6. Ms. Dougherty: Number -- Chair Sanchez: 5 and 6. Ms. Dougherty: -- 5 and 6 is on -- Chair Sanchez: All right. Ms. Dougherty: -- second reading. It has been approved by the Planning Advisory Board, as well as the Zoning Board; and Historic Preservation Board also recommended approval, and so we have lots of neighborhood support, and we would ask your support for this one. I'm prepared to make a full presentation, if you'd like. Chair Sanchez: Well, I just -- Commissioner Sarnoff No. No need. Chair Sanchez: Hold on for -- is there anyone here in opposition to this item? There is no opposition? All right, go ahead and just state your name and address and who you represent, which is the City. Roberto Lavernia (Chief of Land Development): Roberto Lavernia, for the Planning Department. PZ.5 and 6 are companion items. It's second reading; was approved on first reading already. There was a condition at the PAB (Planning Advisory Board) for approval of the project as presented, and a second motion adding -- recommending for this body to take in consideration these conditions. Any of all use access from Northeast 6th Court be restricted, no loading or unloading, and to limit use of adaptive reuse; and was passed 9/0. Chair Sanchez: Okay. Just put something on the record. Ms. Dougherty: And we agree to those conditions. This is going to require a Class II Permit for whatever happens there, so the City is protected because there's an SD-9 overlay. Chair Sanchez: All right. Also, this is also an ordinance on second reading. Once again, I did open up the public. I just want to make sure that there is no one in the audience in opposition. So for the record, there's no opposition. Okay. It's an ordinance. Commissioner Sarnoff So moved. Chair Sanchez: There's a motion by -- Commissioner Gonzalez: Second. Chair Sanchez: -- Commissioner Sarnoff, second by Commissioner Gonzalez. The public hearing is closed, sir. Where were you? Elvis Cruz: Commissioner, you asked if there was opposition. Chair Sanchez: Yes. City ofMiami Page 123 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Cruz: But that doesn't mean that you can't speak on an informational basis, which is one of the three categories for speaking at the public hearing. Chair Sanchez: I opened up the public hearing twice and closed it. It's closed. All right. Luis Herrera: I pointed to the man and you weren't looking this way. (INAUDIBLE). Chair Sanchez: All right. Public hearing is closed. There's a motion and a second. It's an ordinance on second reading. Madam Attorney, read the ordinance into the record, followed by a roll call. The Ordinance was read by title into the public record by Assistant City Attorney Maria 1 Chiaro. Chair Sanchez: All right, followed by a roll call. Ms. Thompson: Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been adopted on second reading, 3/0. PZ.6 07-01152zc ORDINANCE Second Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S) AMENDING PAGE NO. 9, 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 "R-3" MULTIFAMILY MEDIUM -DENSITY RESIDENTIAL TO "C-1" RESTRICTED COMMERCIAL WITH AN "SD-9" BISCAYNE BOULEVARD NORTH OVERLAY DISTRICT FOR THE PROPERTY LOCATED AT APPROXIMATELY 7300 NORTHEAST 6TH COURT, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-01152zc Analysis.PDF 07-01152zc Zoning Map.pdf 07-01152zc Aerial Map.pdf 07-01152zc Application & Supporting Docs.PDF 07-01152zc ZB 11-19-07 Fact Sheet.pdf 07-01152zc ZB Reso.PDF 07-011521u& 07-01152zc HEPB Reso.pdf 07-01152zc CC Legislation (Version 2).pdf 07-011521u & 07-01152zc Exhibit A.pdf 07-01152zc CC FR Fact Sheet.pdf 07-01152zc-Submittal-Applicable Land Use Policies of the City of Miami.pdf 07-01152zc-Submittal-HEP Board Resolution 2007-52.pdf 07-01152zc-Submittal-Support Letters.pdf 07-01152zc CC SR Fact Sheet.pdf LOCATION: Approximately 7300 NE 6th Court [Commissioner Marc David Sarnoff - District 2] APPLICANT(S): Iris V. Escarra, Esquire, on behalf of Milano at Ocean Drive, LLC City ofMiami Page 124 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 FINDINGS: PLANNING DEPARTMENT: Recommended denial. HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD: Passed a resolution on October 2, 2007 to support and encourage the adaptive use of the Historic Vagabond Motel. ZONING BOARD: Recommended approval to City Commission on November 19, 2007 by a vote of 5-1. See companion File ID 07-011521u. PURPOSE: This will change the above property to C-1 Restricted Commercial with an SD-9 Biscayne Boulevard North Overlay District. Motion by Commissioner Gonzalez, seconded by Commissioner Sarnoff, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 3 - Commissioner Gonzalez, Sarnoff and Sanchez Absent: 2 - Commissioner Regalado and Spence -Jones 12963 Note for the Record: The proffer recorded for Item PZ.6 does not constitute a modification to the ordinance. Chair Sanchez: All right. PZ.6. Judith Burke: Mr. Chairman, on PZ (Planning & Zoning) number 2, which is also -- Chair Sanchez: No, no, no. Ms. Burke: -- a noncontroversial item. Chair Sanchez: Hold on. We still got PZ.5. Ms. Burke: Well -- Chair Sanchez: I mean, PZ.6, which is a companion. We'll get to yours. Now, this one, okay, there is -- is there a motion? Commissioner Gonzalez: I'll move PZ.2. Chair Sanchez: Motion by -- Commissioner Gonzalez: I mean, PZ.6. Chair Sanchez: -- Commissioner Gonzalez. Commissioner Gonzalez: I'm sorry. Chair Sanchez: Second by? Commissioner Sarnoff Which one are we on? Chair Sanchez: PZ.6, the companion item -- Commissioner Sarnoff Okay. City ofMiami Page 125 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- to PZ.5. Commissioner Gonzalez: 6. Ms. Dougherty: PZ.6. Commissioner Gonzalez: I said 2, but it was 6. Commissioner Sarnoff Right. Okay. Chair Sanchez: Okay. Commissioner Sarnoff I second it. Chair Sanchez: Madam Clerk, we are addressing PZ. 6, which is a companion item to PZ.5. Priscilla A. Thompson (City Clerk): Thank you. Chair Sanchez: There's a motion by Commissioner Gonzalez, second by Commissioner Sarnoff. Before we open it up to discussion or presentation, which has been made, is there anyone from the public wishing to address this item, please step forward and be recognized. Okay. Elvis Cruz, you're recognized. Elvis Cruz: Thank you. Thank you very much, Commissioner. Chair Sanchez: And the last time, I opened -- I called it twice to get the attention, but you were back there -- Mr. Cruz: I must have misheard you. Chair Sanchez: All right. I apologize, but -- Mr. Cruz: No problem. I'll say the same thingl was going to say -- Chair Sanchez: -- I run a tight ship here. I'm not here to please everybody. Mr. Cruz: Appreciate that. Elvis Cruz, 631 Northwest 57th Street. I am here in support of Eric Silverman's ambitious project to save the Vagabond Motel building. As I've been told, this change from R-3 to restricted commercial is a requirement for the Vagabond to move forward with an adaptive reuse and, as such, preserve this important component of the MiMo (Miami Modern) District. I have read the Planning Department's recommendation of denial, and l find the reasons given to be logical. One of those reasons is the fact that restricted commercial also includes high -density residential, which would be incompatible with this area. I have long pointed out that the egregious flaw in our Zoning Code, that if a property is zoned to allow even a single story of commercial use, it is also automatically zoned to allow a residential or office building of unlimited height. Therefore, I urge the members of this Commission to initiate discussion leading to the removal of the unlimited height R-4 designation from office and commercial zoning. However, in the case of the Vagabond, it would be acceptable if a covenant could be established that will maintain the height of the building as is and that the historic district will also protect the character and scale of the area. On that basis, I am supporting this zoning change and ask you to allow it. Chair Sanchez: Thank you. Is there anyone else? Anyone else. All right, the public hearing is closed and it comes back to the Commission. City ofMiami Page 126 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Is there something voluntarily going to be said? Ms. Dougherty: Well, two -- three things protect it. Number one, you have a historic district so nothing can happen that's not -- it goes to the Historic Board and then appeals to you, if they don't like what we propose. Secondly, you have an SD-9 overlay, which requires a Class II Permit. We -- I don't think we've discussed a covenant. We haven't actually discussed the covenant because you have the protection already. Commissioner Sarnoff That's a beautiful diamond ring. Ms. Dougherty: Thank you. Chair Sanchez: All right. Listen, are you prepared to proffer that covenant now, or do you need some time? Ms. Dougherty: He would be willing to covenant that he would not allow for multifamily use, other than the R-3, which is already permitted In other words, if he were to put a residential use in the existing building, that shouldn't be a problem for you. Chair Sanchez: This is second reading -- Ms. Dougherty: Yes, sir. Chair Sanchez: -- and Commissioner, you comfortable with that? Commissioner Sarnoff I'd like to hear the covenant that the building will -- well, it's a voluntary thing, so you have to voluntarily say it, so I don't want to tell you what to say because the City Attorney's going to jump down my throat. Ms. Dougherty: Voluntary covenant; that it would be an adaptive reuse of the existing building. Chair Sanchez: All right. For the record, the covenant has been proffered. All right, no further discussion on the item. Commissioner Gonzalez: Roll call. Chair Sanchez: It is an ordinance on second reading, as amended. Maria J. Chiaro (Assistant City Attorney): An ordinance -- Chair Sanchez: Madam Attorney. The Ordinance was read by title into the public record by Assistant City Attorney Maria J. Chiaro. Ms. Thompson: Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been adopted on second reading, as amended, 3/0. Chair Sanchez: PZ 2. Ms. Dougherty: Thanks very much. PZ.7 07-00790Iu ORDINANCE AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH Second Reading City ofMiami Page 127 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 ATTACHMENT(S), AMENDING ORDINANCE NO. 10544, AS AMENDED, THE FUTURE LAND USE MAP OF THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN, PURSUANT TO SMALL SCALE AMENDMENT PROCEDURES SUBJECT TO §163.3187, FLORIDA STATUTES, BY CHANGING THE LAND USE DESIGNATION OF 0.54± ACRES OF REAL PROPERTIES LOCATED AT APPROXIMATELY 5711 NORTHWEST 2ND STREET AND 212 & 220 NORTHWEST 57TH AVENUE, MIAMI, FLORIDA, FROM "MEDIUM DENSITY MULTIFAMILY RESIDENTIAL" TO "RESTRICTED COMMERCIAL"; MAKING FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-007901u - PAB Item 2 backup informatiom.pdf 07-007901u PAB Reso.PDF 07-007901u CC Application Supporting Documents.pdf 07-007901u CC Legislation (Version 2).pdf 07-007901u Exhibit A.pdf 07-007901u CC FR 11-09-07 Fact Sheet.pdf 07-007901u CC FR 12-13-07 Fact Sheet.pdf 07-007901u-Submittal-Support Signatures.pdf 07-007901u-Submittal-Declaration of Restrictive Covenants.pdf 07-007901 u-Submittal-Map. pdf 07-007901u CC SR 01-24-08 Fact Sheet.pdf LOCATION: Approximately 5711 NW 2nd Street and 212 & 220 NW 57th Avenue [Commissioner Tomas Regalado - District 4] APPLICANT(S): Ben Fernandez, Esquire and Melissa Tapanes-Llahues, Esquire, on behalf of R&E at Red Road, Inc., Margo G.C., Inc. and Carlos and Minerva Cordero, Owners FINDINGS: PLANNING DEPARTMENT: Recommended denial. PLANNING ADVISORY BOARD: Recommended denial to City Commission on July 18, 2007 by a vote of 4-2. See companion File ID 07-00790zc. PURPOSE: This will change the above properties to Restricted Commercial. Motion by Commissioner Regalado, seconded by Vice Chair Spence -Jones, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 5 - Commissioner Gonzalez, Sarnoff, Sanchez, Regalado and Spence -Jones 12964 Chair Sanchez: We're back in order. We do have three Commissioners; one on his way to the dais. Let's go ahead and take up a noncontroversial item, which is PZ.7 and PZ. 8. For those of you who were not sworn in that will be addressing the Commission on any of the pocket [sic] items, now is the time for you to stand up, raise your right hand, and be sworn in. Madam Clerk, could you swear -- Priscilla A. Thompson (City Clerk): Yes. Chair Sanchez: -- them in? City ofMiami Page 128 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 The City Clerk administered oath required under City Code Section 62-1 to those persons giving testimony on zoning issues. Ms. Thompson: Thank you. Chair Sanchez: All right. We'll go ahead and take up PZ.7 and PZ.8. Those are the first item [sic]. After that we'll bring up PH.1. All right, so PH.1, you're on the mound. Harold Ruck (Planner II): All right. Good afternoon. Harold Ruck, with the Planning Department, and this is PZ.7; and like was mentioned, it's a companion item with PZ.8, a zoning change. This is for a consideration of amending the Comprehensive Neighborhood Plan by amending the future land use plan map for the properties located at approximately 5711 Northwest 2nd Street and 212 and 220 Northwest 57th Avenue, changed from medium density multifamily residential to restricted commercial. The Planning Department recommended denial, Planning Advisory Board recommended denial, and the City Commission passed on first reading December 13. Chair Sanchez: All right. Madam Applicant, you're recognized for the record. Melissa Tapanes-Llahues: Melissa Tapanes-Llahues, law firm ofBercow Radell & Fernandez, 200 South Biscayne Boulevard, Miami. This was approved unanimously at first reading. We have a full presentation, if it's the will of this Board. Chair Sanchez: All right. Before -- let's go ahead and get a motion, either up or down, so we could open it up to the public. Commissioner Regalado: I move to approve on second reading. Chair Sanchez: Okay. Vice Chair Spence -Jones: Second. Chair Sanchez: There is a motion by Commissioner Regalado, second by Vice Chair Spence -Jones. Before we open up the item for discussion, it requires a public hearing. This item being heard at this time is PH.7 on second reading. Anyone from the public wishing to address this item, please step forward and be recognized. Seeing none, hearing none, the public hearing is closed; coming back to the Commission. Any discussion on the item? I just have one question, if there are no questions. Commissioner Regalado, you're recognized. Commissioner Regalado: Thank you, Mr. Chairman. The covenant, it's in the hands of the City Attorney? Jorge L. Fernandez (City Attorney): Yes. Ms. Tapanes-Llahues: Yes. It was approved by the City Attorney. Commissioner Regalado: And for the record -- okay. It's basically what the residents requested Ms. Tapanes-Llahues: Correct. Commissioner Regalado: -- that no this, no that on that site? Ms. Tapanes-Llahues: Absolutely. City ofMiami Page 129 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: It's already -- Chair Sanchez: But isn't the covenant on the next item? Roberto Lavernia (Chief of Land Development, Planning Department): On the zoning change -- Chair Sanchez: Right. Mr. Lavernia: -- yes. Chair Sanchez: Okay. Mr. Lavernia: But since both are companion, you want to put something -- Chair Sanchez: All right. Mr. Lavernia: -- on the record now? Chair Sanchez: Put it on the record. Mr. Lavernia: The Planning Department, working with the applicant, review the covenant. We're in agreement of all the things that they are doing, limiting uses. The only thing that the Planning Department is going to request is to have the opportunity to have design review process for anything that is constructed in there in order to be able to protect the immediately adjacent residential neighborhood to be added to the covenant. Commissioner Regalado: Okay. Chair Sanchez: All right, so for the point of clarification, the covenant, all it does is it limits the zoning and a comp plan change to a specific project with townhouses used in the buffer area as to R-1. Commissioner Regalado: No. The covenant is what they don't want, what the residents in the area don't want, like -- Ms. Tapanes-Llahues: The declaration of restrictions, through the Chair, it basically prohibits certain uses that the neighborhood was opposed to. It provides for a six-foot masonry wall to be erected to separate the nonresidential from the residential uses, and that's what the covenant does. And if it's the will of this Board, we'll also condition for Urban Design Review. Commissioner Regalado: Oh, yeah. That would be part of my motion. Chair Sanchez: Okay. All right, there's a motion and a second. No further discussion on the item, as modified. It is a second reading. Madam Attorney -- Mr. Lavernia: Mister. Chair Sanchez: Mr. Attorney. I apologize. Jorge L. Fernandez (City Attorney): It's all right. Chair Sanchez: Mr. City Attorney. Some people are too proper here. Mr. City Attorney -- Mr. Fernandez: Yes. City ofMiami Page 130 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- I do apologize. I mean -- Mr. Fernandez: No. No problem. The Ordinance was read by title into the public record by the City Attorney. Chair Sanchez: Roll call. Ms. Thompson: Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been adopted on second reading, as modified, 5/0. PZ.8 07-00790zc ORDINANCE Second Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S) AMENDING PAGE NO. 30, 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 "R-3" MULTIFAMILY MEDIUM -DENSITY RESIDENTIAL TO "C-1" RESTRICTED COMMERCIAL FOR THE PROPERTIES LOCATED AT APPROXIMATELY 5711 NORTHWEST 2ND STREET AND 212 & 220 NORTHWEST 57TH AVENUE, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-00790zc Analysis.pdf 07-00790zc Zoning Map.pdf 07-00790zc Aerial Map.pdf 07-00790zc Application & Supporting Docs.pdf 07-00790zc ZB 09-24-07 Fact Sheet.pdf 07-00790zc ZB Reso.PDF 07-00790zc CC Legislation (Version 2).pdf 07-00790zc Exhibit A.pdf 07-00790zc CC FR 11-09-07 Fact Sheet.pdf 07-00790zc CC FR 12-13-07 Fact Sheet.pdf 07-00790zc-Submittal-Support Signatures.pdf 07-00790zc-Submittal-Declaration of Restrictive Covenants.pdf 07-00790zc-Submittal-Map. pdf 07-00790zc CC SR 01-24-08 Fact Sheet.pdf LOCATION: Approximately 5711 NW 2nd Street and 212 & 220 NW 57th Avenue [Commissioner Tomas Regalado - District 4] APPLICANT(S): Ben Fernandez, Esquire and Melissa Tapanes-Llahues, Esquire, on behalf of R&E at Red Road, Inc., Margo G.C., Inc. and Carlos and Minerva Cordero, Owners FINDINGS: PLANNING DEPARTMENT: Recommended denial. ZONING BOARD: Recommended denial to City Commission on September 24, City ofMiami Page 131 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 2007 by a vote of 5-4. See companion File ID 07-007901u. PURPOSE: This will change the above properties to C-1 Restricted Commercial. The applicant has proffered a covenant for these properties. Motion by Commissioner Regalado, seconded by Vice Chair Spence -Jones, that this matter be ADOPTED WITH MODIFICATIONS PASSED by the following vote. Votes: Ayes: 5 - Commissioner Gonzalez, Sarnoff, Sanchez, Regalado and Spence -Jones 12965 Chair Sanchez: All right. The item under discussion is PZ.8. It is an ordinance on second reading. It's a companion to PZ.7. Is there a motion? Commissioner Regalado: I move to approve -- Vice Chair Spence -Jones: Second. Commissioner Regalado: -- on second reading. Chair Sanchez: All right, there's a motion by the district Commissioner; there's a second by the Vice Chair. This is where the covenant takes effect. Anyone from the public wishing to address this item, please step forward and be recognized. Seeing none, hearing none, the public hearing is closed; coming back to the Commission. No further discussion on the item. Mr. Attorney, read the ordinance into the record, followed by a roll call. Jorge L. Fernandez (City Attorney): Yes, and what has been modified has been the proffer of the covenant, not the ordinance itself. The Ordinance was read by title into the public record by the City Attorney. Chair Sanchez: All right, roll call. Priscilla A. Thompson (City Clerk): Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: Okay. Melissa Tapanes-Llahues: Thankyou. Ms. Thompson: Well, hold on. Be -- it's my understanding, through the City Attorney, that the modification was to a covenant; therefore, the actual legislation was not modified, correct? Mr. Fernandez: Correct. That is correct. Ms. Thompson: Thank you. Mr. Fernandez: And we will attach to the legislation the corrected proffer. Ms. Tapanes-Llahues: Thankyou. Chair Sanchez: All right. I stand corrected. City ofMiami Page 132 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Thompson: Thank you. Chair Sanchez: All right, the item passes. PZ.9 07-01180 ORDINANCE AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AMENDING ORDINANCE NO. 10544, AS AMENDED, THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN, BY ADDING A NEW EDUCATIONAL ELEMENT AND AMENDING AND ADDING CERTAIN POLICIES TO THE INTER -GOVERNMENTAL COORDINATION AND THE CAPITAL IMPROVEMENT ELEMENTS IN ORDER TO INCORPORATE LANGUAGE TO REFLECT A NEW FLORIDA STATUTORY MANDATE TO IMPLEMENT PUBLIC SCHOOL CONCURRENCY; MAKING FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; INCORPORATE THE REPORT ON "RESPONSE TO FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS (DCA) OBJECTIONS, RECOMMENDATIONS AND COMMENTS (ORC) REPORT OF JANUARY 4, 2008": CONTAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-01180 PAB 09-19-07 MCNP Amendments for SB Concurrency- Backup Info.pdf 07-01180 PAB 10-03-07 Item #1 - 07-01180.pdf 07-01180 PAB Reso.PDF 07-01180 Public School Concurrency Presentation.pdf 07-01180 CC Legislation (Version 2).pdf 07-01180 Exhibit A to Legislation (Version 2).pdf 07-01180 CC FR Fact Sheet.pdf 07-01180-Submittal-Public School Concurrency Presentation. pdf 07-01180 City's Response to DCA's Comments.pdf 07-01180 CC SR Fact Sheet.pdf 07-01180 CC Legislation (Version 3).PDF 07-01180 - Exhibit A (Version 3).pdf Second Reading APPLICANT(S): Pedro G. Hernandez, City Manager, on behalf of the City of Miami FINDINGS: PLANNING DEPARTMENT: Recommended approval. PLANNING ADVISORY BOARD: Recommended approval to City Commission on October 3, 2007 by a vote of 8-1. See companion File ID 07-01182. PURPOSE: This will incorporate new language to reflect a new Florida statutory mandate to implement public school concurrency. Motion by Commissioner Gonzalez, seconded by Commissioner Sarnoff, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 5 - Commissioner Gonzalez, Sarnoff, Sanchez, Regalado and Spence -Jones 12966 Chair Sanchez: All right. Let's move on to PZ (Planning & Zoning) items. Let's take on -- City ofMiami Page 133 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Gonzalez: PZ.9, right? Chair Sanchez: PZ.7 and 8? Priscilla A. Thompson (City Clerk): 9. Commissioner Gonzalez: We already did that. Chair Sanchez: We did those? Commissioner Gonzalez: Yeah. Ms. Thompson: We did 7 and 8, yes. Chair Sanchez: All right. Let's take PZ.9. PZ.9 is a Florida statutory mandate to implement public schools concurrency. Harold Ruck (Planner II): Good afternoon. Harold Ruck, with the Planning Department. And this is the second reading of this particular item. It's for consideration of an ordinance amending the Comprehensive Neighborhood Plan by adding a new educational element and appending and adding certain policies to the intergovernmental coordination and capital improvements elements. It's in order to incorporate language to reflect the new Florida Statutes mandate to implement school concurrency. Now, after the Commission approved the document October 25, we sent the document to the Department of Community Affairs for their review. We received comments from the Department of Community Affairs, and we have made some updates to the amendments; and that is what you have before you. So any questions, we have represent [sic] from the School Board. Chair Sanchez: Okay. We have someone from the School Board. State your name and address for the -- Fernando Albuerne: Fernando Albuerne, Miami -Dade County Public Schools. Thank you. Chair Sanchez: All right. Ladies and gentlemen, we need a motion either up or down on this item. Commissioner Gonzalez: I'll move PZ.9. Commissioner Sarnoff Second. Chair Sanchez: There's a motion by Commissioner Gonzalez, second -- Commissioner Sarnoff Second. Chair Sanchez: -- by Commissioner Sarnoff. Before we open it up for discussion, anyone from the public wishing to address this item, please step forward and be recognized. All right. Can we just put something on the record as to what we're dealing with as to those that are watching TV (Television) know what we're voting on, please, sir? Mr. Albuerne: Yes, sir. Just as he explained, it's just the -- they're going to be looking at the district -wide LOS (Level of Service) and the education element, the capital improvement element, and the intergovernmental coordination element that will be together with the new Neighborhood Comprehensive Development Master Plan. Chair Sanchez: All right, and all this basically does is puts the City in compliance with the 205 City ofMiami Page 134 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 [sic] act of the Florida state legislation [sic] that orders that all cities come in compliance with it -- Mr. Albuerne: That is correct. Chair Sanchez: -- by January 1, and all it does is to make sure that as development is occurring, there is enough schools to meet that -- Mr. Albuerne: Meet concurrency. Chair Sanchez: -- demand. Mr. Albuerne: That is correct. Chair Sanchez: All right. Has the County approved this yet? Mr. Albuerne: No, the County hasn't approved it. The County will be looking at it next month. Chair Sanchez: Why is that? Mr. Albuerne: The County had a couple of -- they wanted to make a couple of changes. They had like a substitute. One of the issues that they had was they wanted a concurrency throughout the district, which was something that would be detriment to the municipalities because what would happen is schools that will be under -enrolled in the City that would be able to meet concurrency for your projects could be anybody from -- could be Homestead, anybody from North Miami, or anybody from Doral would be able to mitigate those to (UNINTET,TIGIBLE). Chair Sanchez: All right, so for the point of clarification. Mr. Albuerne: Yes, sir. Chair Sanchez: This means that a developer seeking a MUSP (Major Use Special Permit) in the City would have to go in front of the School Board and provide that he complies with the needs for the schools? In other words, there is enough schools for the people that are moving into those buildings? Mr. Albuerne: That is correct. Chair Sanchez: Okay. All right. Any further discussion? It is a public item. It's still open. This is a very important item, folks, schools and development. Hearing none, the -- state your name and address for the record. Zulema Rivero: Yes. My name is Zulema Rivero. My address is 2121 Southwest 13th Avenue. And with regards to the issue of buildings and schools, particularly, you know, I can say within our area, we just had a building approved, which the neighbors obviously don't feel that it was appropriate for the neighborhood, plus it has incurred some stress to our current elementary and middle school. I understand that the owners of the building went ahead and provided some funds to sort of alleviate the, let's say, needs of the school for the additional students, which I believe, if anyone has been by, Coral Way Elementary or K 8 Center; they've noticed, and we have like 18 new portables in our area. Now, my concern with this is, yes, we have physical space for our students to be educated, et cetera, but the issue -- the other issue comes to now we no longer have any space for these children to do PE (Physical Education), exercise. They basically have like, you know, maybe a sidewalk, a piece of cement in between a building. Everyday you hear obesity with issues in children and how we need to get them out and exercise. I want to understand how is it that you feel that this goes ahead and goes along with our beliefs City ofMiami Page 135 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 that we want our children to be healthy. We don't want them to be obese, et cetera. How can this help our neighborhoods if it continues happening? Mr. Albuerne: This is why it's so important -- this is why this issue is so important that in order for developers to continue building, they have to mitigate the growth. In your case, in Coral Way K-8, we're going to be adding a new modular for the conversion of the K-8. As you know, the community wanted that school to be a K-8 and that's what -- it was done. In the future, in the capital plan, we have additional in -- to south -- Southside Elementary is going to have an addition. Right now it's -- I believe the capacity is about very close to 300 student stations. It will increase to 700 student stations. It's going to be three-story addition, which is going to be exactly comply to what you want, but this is why concurrency is so important to make sure that we're able to mitigate the growth in the area. Ms. Rivero: Thank you. Chair Sanchez: All right. Judy. Judith Sandoval: Judy Sandoval, 2536 Southwest 25th Terrace. I'm certainly in favor of this City and this County following the state concurrency laws, andl simply wish to point out that because the schools end up taking up, presently, all of the recreational lands around the schools, either for parking lots or for modular school rooms, the functions of the recreational areas around the schools are now spilling over into our parks; and there're buildings being put up in our parks to set -- to teach kids computers, to -- and it's too much of a load on our parks, and we are not a city that does the right thing by parks. We have a master plan, yes; worked on for three years and approved in principle, but not being implemented. So I'm telling you this is -- has all sorts of ramifications, and we do need the concurrency. Thank you. Mr. Albuerne: Thank you. Chair Sanchez: Thank you. All right, anyone else from the public? Hearing none, seeing none, the public hearing is closed; coming back to Commission. No further discussion on the item. Commission Regalado, you're recognized. Commissioner Regalado: Briefly. You know, I think she's right, especially in Shenandoah. The buildup in Shenandoah School, because of the need, was so big that there is no space for children to participate in other activities, so they have to move -- they have to bring them to Shenandoah Park, which, luckily, it's just across the street. But you're going to find that, in the future, if growth continue, the public education in terms of physical activities will be diminished incredibly because no school -- it's always next to a park. And the other issue of concern is the School Board now has tentative plan to close down schools. Nine, right? Mr. Albuerne: Well, ifI may respond to that one. I'd like to get to the first one, too, but the school district has not approved the closing of any schools. Commissioner Regalado: Well, the plans -- there are two in Liberty City. Mr. Albuerne: There is two schools that fall within the ten schools that were mentioned, and let me just to clarify that. The school district have not decided or voted on anything, just alternatives in case that the tax passes and we have to reduce our cost. Commissioner Regalado: Right. Mr. Albuerne: But we have not -- Commissioner Regalado: My point was if a building has been approved because the school was City ofMiami Page 136 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 there and now that school falls within the tentative plans, that will be a problem because then children must be bused to other schools, which is happening in the school on -- in Westchester, right? Mr. Albuerne: Well, that's the problem. The school district has -- I would like to repeat that. We have not decided to close any schools, and what we call it, if they ever do it, it's a repurpose of the schools. What they will do is instead of having a school at 50 percent, they will change a program that will attract more students from that area. But under no circumstances the school district has approved the closing of any schools. Andl would like to bring one more issue, andl want to thank the Commission and City ofMiami because, thanks to you, we're able to have students like she mentioned in some of the -- in some of your parks, but on the other hand, please remember that all of our schools become parks after 3 o'clock on Saturdays and Sundays. Chair Sanchez: Thank you. Mr. Albuerne: And we really appreciate your help. Chair Sanchez: All right. This is PZ.9. The public hearing is closed, and it comes back to Commission. There's a motion and a second. No further discussion. Mr. Attorney, I was -- read it into the record, followed by a roll call. Jorge L. Fernandez (City Attorney): Yes. The Ordinance was read by title into the public record by the City Attorney. Chair Sanchez: All right, roll call. Priscilla A. Thompson (City Clerk): Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been adopted on second reading, 5/0. Mr. Albuerne: Thank you very much. PZ.10 07-00391Iu ORDINANCE First Reading 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, PURSUANT TO SMALL SCALE AMENDMENT PROCEDURES, SUBJECT TO §163.3187, FLORIDA STATUTES, BY CHANGING THE LAND USE DESIGNATION OF 0.40± ACRES OF REAL PROPERTIES LOCATED AT APPROXIMATELY 1252, 1262 AND 1272 SOUTHWEST 21 ST TERRACE, MIAMI, FLORIDA, FROM "SINGLE FAMILY RESIDENTIAL" TO "RESTRICTED COMMERCIAL"; MAKING FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. City ofMiami Page 137 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 07-003911u - PAB Supporting Documentation.pdf 07-003911u CC Land Use Map.pdf 07-003911u Aerial Map.pdf 07-003911u PAB Reso.PDF 07-003911u CC Application Supporting Documents. pdf 07-003911u CC Legislation (Version 2) - OLD.pdf 07-003911u & 07-00391zc Exhibit A.pdf 07-003911u CC FR 10-25-07 Fact Sheet.pdf 07-003911u Legislation (Version 2) - NEW.PDF 07-003911u CC FR 12-13-07 Fact Sheet.pdf 07-003911u & 07-00391zc Disclosure to Support or Withhold Objection.pdf 07-003911u CC FR 01-24-08 Fact Sheet.pdf 07-003911 u-Submittal-Photograph. pdf 07-003911u-Submittal-Petition Signatures. pdf 07-003911u-Submittal-Declaration of Restrictive Covenants. pdf LOCATION: Approximately 1252, 1262 and 1272 SW 21st Terrace [Commissioner Joe Sanchez - District 3] APPLICANT(S): Ben Fernandez, Esquire, on behalf of Ive Group One, LC FINDINGS: PLANNING DEPARTMENT: Recommended denial. PLANNING ADVISORY BOARD: Recommended denial to City Commission on April 4, 2007 by a vote of 9-0. See companion File ID 07-00391zc. PURPOSE: This will change the above properties to Restricted Commercial. Motion by Chair Sanchez, seconded by Commissioner Regalado, that this matter be CONTINUED PASSED by the following vote. Votes: Ayes: 3 - Commissioner Gonzalez, Sanchez and Regalado Absent: 2 - Commissioner Sarnoff and Spence -Jones Chair Sanchez: All right. Next item on the agenda is PZ.10 and PZ.11, which are companion items. Harold Ruck (Planner II): Harold Rock, with the Planning Department. PZ.10 is a first reading companion item with PZ.11 for a zoning change. This is for a consideration of amending the Comprehensive Neighborhood Plan by amending the future land use plan map for the properties located approximately 1252, 1262, 1272 Southwest 21st Terrace, from single-family residential to restricted commercial. The Planning Department is recommending denial. The Planning Advisory Board recommended denials. And the City Commission continued the item on December 13. Planning Department considerations are that the character of Southwest 21st Terrace is low density residential, specifically single-family residential. The potential increase in residential density will be out of scale with the established neighborhood going from nine dwelling units to a hundred fifty dwelling units. Land use policy one maintains land use patterns that protect and enhance the quality of life in the City's residential neighborhoods and promotes the efficient use of land, minimizes land use conflicts; and LU-1.1.3 provides for protection of all areas of the City from encroachment of incompatible land uses. These findings support the position that the future land use map in this location shouldn't be changed according to the Planning Department. Any questions? Chair Sanchez: No. All right. City ofMiami Page 138 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ben Fernandez: Good afternoon, Mr. Chair, members of the Board. Ben Fernandez, 200 South Biscayne Boulevard, with the law offices of Bercow, Radell and Fernandez. I'm here today on behalf of the Ive Group, LLC (Limited Liability Company), the property owner and applicant. With me is Mr. Henry Lovera (phonetic) of the Ive Group and our project architect, Mr. Eddie Francis. This property is -- as Mr. Ruck noted, it is just west of the five points area on Coral Way. It is abutting -- directly abutting commercial property on Coral Way between Zuperpollo, the -- which is commonly known as Zuperpollo restaurant, and the corner office building at the intersection of 13th Avenue and Coral Way. As you can see from the map, the property is surrounded by commercial zoning on two sides to the west as well as to the south. There's also commercial zoning along 21st Terrace at 12th Avenue; and what remains on this block is, essentially, an island of SD-12 zoning that -- SD-12 and R-1 zoning. The majority of that SD-12 land is being used for surface parking right now to serve the commercial properties on Coral Way. And anyone that's familiar with Coral Way knows that this is probably one of the most busy areas in terms of retail use. It's not characterized by much office development. There's a lot of existing grandfathered restaurants and a lot of existing grandfathered retail operations that don't have parking 'cause they were never approved with parking from the very beginning. So the situation that a lot of those businesspeople experience day to day is that everyone wants to go to their restaurants, everyone wants to patronize their stores; there's nowhere to park in the area, so what happens is that they park in the residential areas. They park along 21st Terrace. They park along 22nd Terrace. They park anywhere that they can park. What we're proposing is a change of zoning for these three lots that would be consistent with the change of zoning that was granted for the lot directly to the west, and the purpose of that zoning would be to introduce an office project to this area, something that is lacking right now; and the only thing that it doesn't have -- I think you have restaurants. You have retail. You don't have much office on this block. And by virtue of that project, we would be providing parking, additional structured parking for the area that would benefit the retailers of the area as well as provide enough parking to satisfy its own requirements; and so this is the first step of the project we've begun. The site plan review process with staff we've submitted plans to the Internal Design Review Committee; they've reviewed them. We've been doing that for quite a few months now. We've come to the point where I think we have staffs support for the project. We still need a Class II Special Permit, of course, because any development along Coral Way requires a Class II Special Permit. So by no means are we seeking approval of the project today. What we're seeking is simply a rezoning of the rear lots so that we can extend the building footprint of the -- the building footprint from the commercial lot to the back so that we can provide an adequate parking -- structured parking area to satisfy the building's requirements and provide the parking that is required for this intersection. The -- you know, the current SD-12 zoning is designed to provide some parking for the commercial areas on Coral Way, but it's an antiquated zoning provision. It doesn't work in this area. There's too much demand, and what you have is a vacant lot that -- it's just transparent. You can -- if you're driving on Coral Way, you see all those parked cars and then you see homes behind them on the other side. It doesn't help the homes and it's not helping the businesses. You really need a structured parking solution with an adequate transition into the commercial areas to the north, and that's what we have here. You can see what our Class II application will look like is a building on Coral Way stepping down with a structured parking garage as you approach 21st Terrace, and then ending with a townhome on 21st Terrace. So we don't want to change the character of 21st Terrace at all. We want to keep it residential. And one of the Planning Department's comments, which I thought was, you know, an excellent comment -- we originally had trouble accommodating it, but Mr. Francis was able to modify the plan to make it work -- is that we take off all of the parking in front of the homes along 21st Terrace, which is something that's rather unattractive today. A lot of these homes along 22nd and 21st Terrace were designed with only one -space parking garage, so people extend their driveways and they park all their cars in front of their home. You see it everywhere in the Shenandoah area. What we're doing with this project is we're putting the cars behind the townhomes so that the private space is in front of the townhome and the cars come in on 21st Terrace, park behind the units, and the entire street looks a lot better that way. City ofMiami Page 139 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: So the parking is in the rear of the townhouses? Mr. Fernandez: In the rear of the townhomes, that's correct. I think that's something that Miami 21 even encourages. So that's our presentation. We're here to answer any questions that you have. We'd want to come back to the Department with a Class II Special Permit. Chair Sanchez: Let's -- I think the Administration wants to state something, and then we'll open it up -- Roberto Lavernia (Chief of Land Development): Yes. The recommendation -- Chair Sanchez: -- to the public. Mr. Lavernia: -- is for denial for both cases, but the applicant is offering to tie themselves to a specific project that was reviewed by the Planning Department, and they're going to offer a covenant tying themselves to that specific project. We just want to modin, the Section 2A, that it said that the plans are on file with the City ofMiami Planning Department. The City -- the Planning Department is not the legal custodian on file and there's no such a file, so I would rather the applicant to proffer the covenant saying that they tie themselves to the set of plans prepared by Eddie Francis, consisting of 12 page, and date October 24 of 27th [sic]; and that presented as part of the Internal Design Review Committee when they get the comments. We want that modification on the covenant that they are voluntary [sic] offering to you. Chair Sanchez: Okay. All right, the public -- the meeting is open to the public. Please state your name and address for the record. Zulema Rivero: Yes. Good afternoon. Again, my name is Zulema Rivero. I live at 2121 Southwest 13th Avenue. I've lived there since 1971. First of all, I wanted to ask Attorney Ben Fernandez, in efforts of good faith with the neighbors, have you shared these pictures or plans or ideas or thoughts of that area with the neighbors that might be directly affected? Mr. Fernandez: By -- this item has been continued quite a few times as we've worked through the process. I did invite Ms. Solares -- I don't know if she's here. She is here. There she is -- at one hearing. Asked her if she wanted to meet, and she told me that there was, you know, no middle ground and she wasn't interested in meeting with us at all, so -- and she claimed to represent the neighborhood. The plans have been on file for some time -- Ms. Rivero: No. I -- Mr. Fernandez: -- and we've been here quite a few times. We'll be happy to -- Ms. Rivero: Right, right, right. Mr. Fernandez: -- show them to you. Ms. Rivero: That's what I'm saying. Because we've sort of dealt with this area for the past five years. I mean, this is not -- Mr. Fernandez: And also -- Ms. Rivero: -- a new thing. Mr. Fernandez: -- Ms. Rivero, understand that we're not here for the project approval -- City ofMiami Page 140 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Rivero: No. I understand that. I understand that. Mr. Fernandez: We'll be happy to meet with you. Ms. Rivero: I just wanted to say, as goodfaith -- Mr. Fernandez: Absolutely. Ms. Rivero: Because I've never attended one of these -- this is the first time I ever see these. Luis Herrera, which is the chair of our -- Mr. Fernandez: Right. Ms. Rivero: -- homeowner's association, has not been invited to a meeting. Just goodfaith. I know it's not, you know -- Mr. Fernandez: You have -- Ms. Rivero: -- mandatory, et cetera. Mr. Fernandez: -- my commitment that we will meet with you as part of our Class II Permit application to -- Ms. Rivero: Thank you. Mr. Fernandez: -- discuss the project. Ms. Rivero: Thank you. That's one thing. And then we wanted to -- I -- we, the neighbors, in our area wanted to -- those that want to protect the neighborhood as it is at this moment and those that want to protect the character and the scale of our area and our neighborhood -- we would like to know, despite the opposition of the close to 200 signed petition neighbors opposing to this construction of a building, et cetera -- I know we're not here to approve that, but that's where we're going. Despite the opposition of close to 200 signed petitions, despite the recommendation for denial by your Planning Department, despite the recommendation for denial for your Planning Advisory Board, what will you base your approval of this decision today, if so that should be the case? How is it that the opposition of close to 200 neighbors is not a concern to this Board being that they will be living, you know, day in and day out with the decision that is made today? We wanted to let you know that we've -- we want to go ahead and try to protect this neighborhood, which we feel is already an established neighborhood. It's not an antiquated neighborhood. It's a well established home -- neighborhood. I understand the parking will be behind the townhouses. Are they going to be visible at all to the neighbors that are living in that area? Not at all. Unidentified Speaker: I don't know. Ms. Rivero: No. Mr. Fernandez: The parking is going to be lined. Ms. Rivero: Right. Mr. Fernandez: It's going to be attractive. I mean -- and you can be, you know, part of our process. We can show you the plans as we go through it. Ms. Rivero: Okay. And the next thing is that this -- where we constantly direct the effects of -- City ofMiami Page 141 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 domino effects to issues like this, we just recently had an approval of the earlier issue, the building that was approved in our neighborhood; and this, unfortunately -- not -- nothing to do personally with you, but this is in effect to our domino effect that we were so concerned about in the past. Thank you. Grace Solares: Thank you. My name is Grace Solares, 60 Southwest 30th Road, on behalf of the Roads. Mr. Fernandez, I have to tell you that that conversation you said you had with me must have been when I was in a coma 'cause I have absolutely no recollection whatsoever, and you know why? Because I don't represent Vizcaya Homeowner's Association; I represent the Roads, so I cannot have told you or anyone under the sun -- Mr. Fernandez: I didn't say you represent Vizcaya. Ms. Solares: -- that) -- one second, please -- Mr. Fernandez: I didn't say that. Ms. Solares: -- was the voice for the neighbors of these people. Mr. Fernandez: Well, you -- this is by the Roads. Ms. Solares: I have opposed the project always from the standpoint of the Roads. Why? Because this travesty is only half a block from the Roads, and once you create a precedent, it just carries on like a cancer; and that's exactly what it is, so just to make the record very clear, I have absolutely no recollection of this conversation you say I had with you, and for the record, the Roads Association does oppose this change. Thank you, sir. Chair Sanchez: Thank you. Luis Herrera: Good afternoon. My name is Luis Herrera, president of the Vizcaya Homeowner Association. Before my time come, I'd like to present 69 signatures quick that) could pick up; and we have signatures before, and these signatures represent the people that can't be here because the time. Andl want it in the record, including) want two pictures that) going to give it to you for the neighborhood so you look at it, where they want to put the building. And present it to your Clerk or to you people? Chair Sanchez: No. Please turn it in to the City Clerk. Mr. Herrera: Okay. One second. Chair Sanchez: Thank you. Mr. Herrera: Now you have all of the signatures in there, and I'd like to you see the pictures that) have in 20 and 21 Terrace in the back. IfI can show you on the map over there that she have right over there, but you can see it in the picture. This is looking for 12th Avenue going west and 13th Avenue. Where you see the arrow where the red sign is in there, and you see all the trees back there, that's where going to be that kind of building they got it over there that he's showing to you facing the neighborhood; and you can see all the houses around there. It's a single-family home. And few minutes ago, this morning you recognize that a -- we have to be -- have a -- we have a constitutional right to have a quality life in the neighborhood. In this present right here, this picture, the quality life of the neighborhood, including that in years back, I have -- I read a case in court and this particular building should be -- what do you call it? I forgot the name -- out of the scale for the neighborhood. And my case, when it went to the district court, they not supposed to be changing anything; it's clear in there. They're not supposed to be changing any zoning change in the area that it is -- what do you calling that -- City ofMiami Page 142 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 hardship, and this is a hardship for the neighborhood. I glad to -- you deny this project because already we have, one, they changing the zoning, and he use it like a C-1; and it's effect domino, like the other lady said and like I said before in the other meetings. It is a effect domino in the neighborhood, in the area, and they destroy all the neighborhood. My house is a 1936. His house is a 1944. And the area is a conservation area and historical, because 3rdAvenue -- when you cross Coral Way to 3rdAvenue, you got a big sign in there, historic -- Chair Sanchez: Okay. Mr. Herrera: -- road. Chair Sanchez: In conclusion. Mr. Herrera: Thankyou. Deny this project, please. Chair Sanchez: Thank you. Anyone else? Judith Sandoval: Judy Sandoval, 2536 Southwest 25th Terrace. I live very close to this neighborhood and so do you, Ben; and can't believe you're doing this to your very own backyard. Obviously, the building is much too big. I'm a frequent patron of Zuperpollo, and as far as a deficiency in parking on the streets, there may be, but the parking lot serves the patrons. It's very handy, and it's never full. I have been concerned with the neighborhoods -- the neighbors fighting against this for several years now, and they certainly don't want it. And all of the things that Luis Herrera have said and the other lady are very true. Now, these big buildings, one of the things they do, even ten or ten and a half stories high, and it's having an effect south of Coral Way in this neighborhood, is that the breezes aren't there anymore. And if you have a small house with gardens, your enjoyment of your property and quality of life have been very much diminished where these buildings have gone up on Coral Way. I urge you to deny this application. Thankyou. Chair Sanchez: Thank you. Nina West: Nina West, 3690 Avocado Avenue, Coconut Grove. This morning we saw good planning and that was approved by this Commission. This is not good planning, and this is a land use change, not a building. We don't know who's going to own this property five years from now, and once you change the land use, you can have a much larger structure than you have there now. When people say, well, we'll make a covenant, and we'll tie it to this and that, who's going to enforce this covenant? Who's going to pay for this? This little neighborhood is going to get up and fight lawsuits? Where are they going to get the money to do that from? So they elect their Commissioners to protect them. They have paid for a Planning Board -- for a Planning Department to have good planning. And then the developer comes in and says, well, this is what I want, this is what I want. Well, you did not buy that land use. You -- what you bought and paid for was something less, and why should we give you something more just because you hire a lawyer and make pretty pictures and show them to the Commission? So I beg the Commission to believe in themselves, and good planning, and to vote their conscience and to say no to this particular development. Chair Sanchez: Thank you. Anyone else? All right, the public hearing is closed; coming back to Commission. You want some time to -- Mr. Fernandez: Just a couple of minutes. I think that the zoning map is clear. It speaks for itself that this is consistent with the trend. Secondly, all of the neighbors' comments don't take into consideration the fact that if you do nothing with these properties, what's going to become of them? No one's going to use these as a residential development. Not at today's price. It doesn't make sense. All you're doing by extending the commercial here is moving the transition into 21 st City ofMiami Page 143 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Terrace where you have a right-of-way, and you can create a better transition between commercial and residential. The problem with Coral Way is that there is no transition between commercial residential today. Anyone that lives in these houses is going to be stuck with a building right behind them, and no one wants that situation. This is a way to improve the quality of housing along Coral Way and create a better transition. That's exactly what we're doing, and I entirely believe in it, personally, as well. Thank you. Chair Sanchez: All right. Does that conclude --? Okay, it comes back to the Commission. I am the district Commissioner. I will pass the gavel to Commissioner Gonzalez. Counsel, this isn't a MUSP. Mr. Fernandez: No, sir. Chair Sanchez: This is a straight zoning and comp plan change that would basically allow right now anything on that site, and that's a concern that I have. When there's a MUSP, there's a specific project -- Mr. Fernandez: Well -- Chair Sanchez: -- to address. I have not seen that project. Mr. Fernandez: But we have -- Chair Sanchez: I know that you are proffering a covenant that you will be presenting. What I am going to recommend to look at this -- and we're just focused on this project, not any other project. I could make arguments on the other project, butl'm not. I'm going to focus on this project. I would recommend a couple of things. One, I think you're entitled to sit down with the residents out of respect, whether you agree or disagree. I think we [sic] need to sit down with the residents. I am going to review the covenant, andl do want to see the plans for that site. So what would do for the sake of this project is that will ask for a deferral, allowing me the time to study the covenant, to look at the plans, and allow you an opportunity to sit down with the residents. So I would make a motion to continue the item to the next PZ (Planning & Zoning) item [sic] on the Commission agenda, PZ agenda, and at that time, we should have some of the issues worked out. I do like some of the concepts, butl'm concerned with voting on something that don't know what I'm voting for compared to when we voted on the other project, which was a MUSP -- it was about three years in the making, and it came to us with a specific tied plan, and that's what they've got to build. Mr. Fernandez: Well, the other project wasn't a MUSP, with all due respect. It was a land use and zoning change with a covenant, such as this. You may have had more of an opportunity to review it -- Chair Sanchez: Well, it definitely had more than this because I haven't even seen these plans, so you know, for the sake of being safe as to what's going to go on that site, I want that opportunity to review all the documents and allow you an opportunity to sit down with the residents. If they don't want to sit down with you, that's perfectly fine, but you've got to extend the opportunity for them to review the plans and see what is going to be built there, if it's built there, and what effect it's going to have on them. So at this time, I will make a motion to defer the item, next PZ item [sic], giving me an opportunity to -- Commissioner Regalado: Second. Chair Sanchez: -- review the covenant and review the plans. Commissioner Gonzalez: All right. There is a motion and there is a second. All in favor, say City ofMiami Page 144 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 "aye." The Commission (Collectively): Aye. Commissioner Gonzalez: Motion carries. PZ.10. Chair Sanchez: No. That's a companion item. Commissioner Gonzalez: I'm sorry, PZ.11 -- Priscilla A. Thompson (City Clerk): PZ.10 and 11 were companions. Commissioner Gonzalez: -- which is a companion. PZ.11 07-00391zc ORDINANCE First Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S) AMENDING PAGE NO. 38, 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 "R-1" SINGLE-FAMILY RESIDENTIAL WITH AN "SD-12" BUFFER OVERLAY DISTRICT TO "C-1" RESTRICTED COMMERCIAL FOR THE PROPERTIES LOCATED AT APPROXIMATELY 1252, 1262 AND 1272 SOUTHWEST 21ST TERRACE, MIAMI, FLORIDA; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-00391zc ZB Analysis.PDF 07-00391zc ZB Zoning Map.pdf 07-00391zc Aerial Map.pdf 07-00391zc Application & Supporting Docs.PDF 07-00391zc ZB 05-14-07 Fact Sheet.pdf 07-00391zc CC Analysis.PDF 07-00391zc ZB Reso.PDF 07-00391zc CC Zoning Map.pdf 07-00391zc CC Legislation (Version 2).pdf 07-003911u & 07-00391zc Exhibit A.pdf 07-00391zc CC FR 10-25-07 Fact Sheet.pdf 07-00391zc CC FR 12-13-07 Fact Sheet.pdf 07-003911u & 07-00391zc Disclosure to Support or Withhold Objection.pdf 07-00391zc CC FR 01-24-08 Fact Sheet.pdf LOCATION: Approximately 1252, 1262 and 1272 SW 21 st Terrace [Commissioner Joe Sanchez - District 3] APPLICANT(S): Ben Fernandez, Esquire, on behalf of Ive Group One, LC FINDINGS: PLANNING DEPARTMENT: Recommended denial. ZONING BOARD: Recommended denial to City Commission on May 14, 2007 by a vote of 9-0. See companion File ID 07-003911u. PURPOSE: This will change the above properties to C-1 Restricted Commercial. The applicant has proffered a covenant for these properties. City ofMiami Page 145 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Motion by Chair Sanchez, seconded by Commissioner Regalado, that this matter be CONTINUED PASSED by the following vote. Votes: Ayes: 3 - Commissioner Gonzalez, Sanchez and Regalado Absent: 2 - Commissioner Sarnoff and Spence -Jones [For minutes relates to item PZ.11, see companion item PZ.10.] PZ.12 07-00795zc ORDINANCE First Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S) AMENDING PAGE NO. 36, 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 "SD-16.2" SOUTHEAST OVERTOWN-PARK WEST COMMERCIAL -RESIDENTIAL DISTRICT TO "SD-16.2" SOUTHEAST OVERTOWN-PARK WEST COMMERCIAL -RESIDENTIAL DISTRICT WITH AN "SD-19" DESIGNATED F.A.R. OVERLAY DISTRICT, F.A.R. OF 4.6, FOR THE PROPERTIES LOCATED AT APPROXIMATELY 525 AND 533 NORTHWEST 2ND AVENUE, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-00795zc Analysis.pdf 07-00795zc Zoning Map.pdf 07-00795zc Aerial Map.pdf 07-00795zc Application & Supporting Docs.pdf 07-00795zc ZB 07-30-07 Fact Sheet.pdf 07-00795zc ZB Reso.PDF 07-00795zc CC Legislation (Version 2).pdf 07-00795zc Exhibit A.pdf 07-00795zc CC FR 10-25-07 Fact Sheet.pdf 07-00795zc CC FR 11-09-07 Fact Sheet.pdf 07-00795zc CC FR 12-13-07 Fact Sheet.pdf 07-00795zc CC FR 01-24-08 Fact Sheet.pdf 07-00795zc Disclosure to Support or Withhold Objection.pdf LOCATION: Approximately 525 and 533 NW 2nd Avenue [Commissioner Michelle Spence -Jones - District 5] APPLICANT(S): Iris V. Escarra, Esquire, on behalf of Urbana Holdings, LLLP FINDINGS: PLANNING DEPARTMENT: Recommended denial. ZONING BOARD: Recommended approval to City Commission on July 30, 2007 by a vote of 5-2. PURPOSE: This will change the above properties to SD-16.2 Southeast Overtown-Park West Commercial -Residential District with an SD-19 Designated F.A.R. Overlay District, F.A.R. of 4.6. Motion by Commissioner Regalado, seconded by Commissioner Gonzalez, that this matter be PASSED ON FIRST READING PASSED by the following vote. City ofMiami Page 146 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Regalado Absent: 1 - Commissioner Spence -Jones Chair Sanchez: PZ 12, that's where we're at right now. Priscilla A. Thompson (City Clerk): No. I'm sorry. Yes, we're at PZ.12. Yes. Chair Sanchez: All right. PZ.12 is an ordinance on first reading. Are you ready? Is the applicant ready? Is there any opposition to this item? There is no opposition to this item? Okay. Whenever you're ready, we could go ahead and start. We're on PZ (Planning & Zoning) item -- it's an ordinance on first reading. PZ.12. Lucia Dougherty: Mr. Chairman, this is in Commissioner Spence -Jones' district. Do you want to --? Commissioner Sarnoff It's her -- it's District 5. Chair Sanchez: I can't speak for Commissioner Spence -Jones. I don't know if she's here or not. Usually, if it's a Commissioner's district, I certainly want to allow her an opportunity to be here on the issue, but it's your call. Ms. Dougherty: I think that we need to -- this is one that I know that she is interested in, so I think that -- Chair Sanchez: Could somebody see if Commissioner Spence -Jones is available? We'll get back to you, all right? Ms. Dougherty: Sure. [Later..] Chair Sanchez: All right. Let's bring up PZ.12. Are you ready for PZ.12? Commissioner Spence -Jones is not here. We're going to take up this item without her being here. Lucia Dougherty: I just spoke Commissioner Spence -Jones's office, and she will not be able to be here today, but if you would pass it on first reading, and then we could make a full presentation on second reading? Chair Sanchez: I don't have a problem with that. And as a matter of fact, that's what the County does. They pass everything on first reading, giving the Commission ample opportunity to do all the research and stuff and then they address the issue on second reading. Because at times, we end up debating on an item on first hearing and then debating it on the second hearing, and you know, and you hear the same testimony, so it's just a matter of having a more efficient Commission meeting. So PZ.12, let's -- Commissioner Regalado: I move it for -- Commissioner Gonzalez: I second. Commissioner Regalado: -- to approve. Commissioner Gonzalez: I'll second it. Chair Sanchez: All right. There's a motion by Commissioner Regalado, second by Commissioner Gonzalez. No discussion on the item on first reading. All in favor, say "aye." Anyone in opposition -- City ofMiami Page 147 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Priscilla A. Thompson (City Clerk): No, no, no, no. Commissioner Regalado: It's an ordinance. Chair Sanchez: -- having the same right, say "nay. Commissioner Gonzalez: No. It's an ordinance. Commissioner Regalado: It's an ordinance. Chair Sanchez: Oh, no, no, no. It's an ordinance. But before I do that, it requires a public hearing. I don't want to deny anybody due process on that. So we're on PZ.13 -- Ms. Dougherty: No. Chair Sanchez: -- 12. PZ.12. Anyone wishing to address this Commission on this item, please step forward Seeing none, hearing none, the public hearing is closed, coming back to the Commission. It's an ordinance. Please read it into the record, followed by a roll call. The Ordinance was read by title into the public record by Assistant City Attorney Maria J. Chiaro. Ms. Thompson: Roll call. Chair Sanchez: All right. Roll call. A roll call was taken, the result of which is stated above. Ms. Thompson: The ordinance has been passed on first reading, 4/0. PZ.13 06-01641zc1 ORDINANCE First Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S) AMENDING PAGE NO. 37, 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 "0" OFFICE WITH AN "SD-19" DESIGNATED F.A.R. OVERLAY DISTRICT, F.A.R. OF .5 TO "0" OFFICE FOR THE PROPERTIES LOCATED AT APPROXIMATELY 2660 BRICKELL AVENUE AND 2640 SOUTH DIXIE HIGHWAY, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. City ofMiami Page 148 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 06-01641zc1 ZB Analysis.PDF 06-01641zc1 ZB Zoning Map.pdf 06-01641zc1 ZB Aerial Map.pdf 06-01641zc1 Application & Supporting Docs.PDF 06-01641zc1 ZB 10-29-07 Fact Sheet.pdf 06-01641zc1 ZB Reso.PDF 06-01641zc1 CC Analysis.pdf 06-01641zc1 CC Zoning Map.pdf 06-01641zc1 CC Aerial Map.pdf 06-01641zc1 CC Legislation (Version 2).pdf 06-01641zc1 Exhibit A.pdf 06-01641zc1 CC FR 01-24-08 Fact Sheet.pdf 06-01641zc1-Submittal-Letter-Brickell Association.pdf 06-01641zc1-Submittal-Traffic Impact Study.pdf 06-0164zc1-Submittal-Support Letters.pdf LOCATION: Approximately 2660 Brickell Avenue and 2640 S Dixie Highway [Commissioner Marc David Sarnoff - District 2] APPLICANT(S): Adrienne F. Pardo, Esquire, on behalf of Holly Real Estate, Inc, Contract Purchaser and Sandra C. Tinsley, Owner FINDINGS: PLANNING DEPARTMENT: Recommended denial. ZONING BOARD: Recommended denial to City Commission on October 29, 2007 by a vote of 8-1. PURPOSE: This will change the above properties to 0 Office. The applicant has proffered a covenant for these properties. Motion by Commissioner Sarnoff, seconded by Commissioner Gonzalez, that this matter be DEFERRED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Regalado Absent: 1 - Commissioner Spence -Jones Chair Sanchez: PZ.13. All right, PZ.13 is an ordinance on first reading. Marc, that's your district. Adrienne Pardo: If you could just give us a moment and we'll set up. Chair Sanchez: Sure. PZ.13. Yes, sir, go ahead. We'll start. Roberto Lavernia (Chief of Land Development): Roberto Lavernia, with the Planning Department. This is a request for a zoning change in order to -- the designation is office with an SD-19 that restrict the FAR (floor area ratio). The applicant is trying to delete the SD-19 in order to have more FAR for the property that is at 2640 South Dixie Highway and 2660 Brickell Avenue. This is a triangular block that is between South Miami Avenue, South Dixie Highway, and Southwest 26 Road, which is the Rickenbacker Causeway. The Planning Department is recommending denial of the request for several reasons. First, because there was a limitation for the FAR for that specific block, which is a designation of office and in front of single-family residential. This is -- it's going to give more FAR than is allowed today and the creation of a very high building that is not in context with the area around the property having that -- they have single-family residential just in front of this. The Planning Department is recommending City ofMiami Page 149 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 denial and the Zoning Board recommend denial also. Thank you. Chair Sanchez: Okay. Is there anyone in opposition to PZ.13? Unidentified Speaker: Yes. Chair Sanchez: Yes. Okay, we do have someone, so we'll go ahead and start with the applicant. Is there an attorney for the other side? If not, just a public hearing. Okay. We'll allow the appellant -- the applicant, I'm sorry. You're recognized. Adrienne Pardo: Hello. My name is Adrienne Pardo, with law offices at 1221 Brickell Avenue. I'm here today on behalf of Holly Real Estate, Inc., the contract purchaser. With me here today is Mr. William Holly, president of Holly Real Estate, as well as Ben Calstone, also with Holly Real Estate. Also with us are our architects Robert Behar and Javier Font, with Behar Font & Architects [sic], and we have Richard Garcia, our transportation engineer, with Richard Garcia & Associates. Mr. Holly is with Holly Real Estate. It's Miami -based commercial real estate company, which provides leasing, sales, development, property management, and project management in Florida. He grew up in Coconut Grove, and he is in the process of building the first green [,FED (Leadership in Energy and Environmental Design) certified office building in the City ofMiami. That's under construction right now. I believe it's on floor number 11. He also was involved in the first green healthcare facility, which was built in Coral Gables, and he built a -- the first green hospital in Texas. I'm going to speak briefly about the subject property and what our application's asking for. Then William will speak and explain why he is seeking -- what and why he is seeking to build here, and we have our architects who will walk you through a project that we have designed for this particular site. We believe that the building which is designed -- it's a gorgeous building. It's perfect for this particular site. The site is a gateway to Coconut Grove; it's a gateway to Brickell Avenue, and it's a gateway to Key Biscayne. We had also prepared a covenant, which provides that if this application is approved, that we would build the building that we have designed in the rendering that we have shown you. We also have Richard Garcia, our transportation consultant, who will address our transportation issues. I would just like to mention that this particular property that's located at 2660 Brickell Avenue and 2610 South Dixie Highway is basically located on an island You have it surrounded by the Rickenbacker Causeway, which is to the east. You have an extension of South Dixie, which is here on the south, and then over here you have South Miami Avenue, and it's really -- has a great deal of buffering because on this particular side, the Rickenbacker, from the property -- you also -- besides the Rickenbacker, you also have the 1-95 ramps, so from here to here you have approximately 270 feet, and then on this side with South Miami Avenue, you also have an 1-95 ramp, and there is about 278 feet, and then on South Dixie, there is about a hundred feet, so you have a huge buffer in this particular area. Currently, now, there is an office building on the subject property, which is two stories. This property today is zoned office, so we're not seeking to change the zoning designation, although what's before you is considered a zoning amendment because in addition to the office designation, we also have an SD-19 overlay with a .5 FAR, so that .5 -- which is very -- Chair Sanchez: Point five? Ms. Pardo: Yes, .5. Point five is less than single family, of a .6. Chair Sanchez: How did you ever -- how'd you end up with that? Ms. Pardo: Actually, there's been several theories that have come up at hearings. We had contacted the City Clerk's Office, and we spent a lot of time trying to figure out why it had this .5, and what we basically came up with -- Chair Sanchez: Somebody must have accepted it. City ofMiami Page 150 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Pardo: -- is that -- No. What happened is that when the City ofMiami did their rezoning for Ordinance 11000, that's when the City put on the office with this SD-19.5 because I -- Commissioner Sarnoff That's not what our research indicates, but go on. Ms. Pardo: I would love to see your research -- Commissioner Sarnoff Okay. Ms. Pardo: -- 'cause the Clerk's Office can -- I have e-mails (electronic) from them. We spent a lot of time researching it. We did come up with another piece of property, just so you know, off of South Dixie, which is also near a triangular piece -- andl have that research with me -- which Chair Sanchez: All right. Ms. Pardo: -- had been rezoned and they had put it on a couple of years ago, but this particular property, there was nothing -- no rezoning, andl have a board that shows the zoning atlas and it tells you on the back when pieces of property were rezoned, and there's nothing on there, so as far as I can tell, it was when 11000 was passed. But because of this .5 FAR, that's what we're requesting today, to remove the .5. What they want to do is they want to build a hotel. It would be a community hotel. It would be an affordable community hotel for this area, for the people who live around here, who live in Brickell, who live in Coconut Grove, and Mr. Holly's going to get into that with regards to the need for affordable hotels in the area where people who are -- family who's coming to visit can stay. Something that's under $200 a night. This particular -- we have -- we had presented these plans to the Brickell Homeowners Association, andl have a letter of support -- which I'm going to read very briefly, and then we're going to submit it into the record -- that thanks Mr. Holly for presenting the plans for developing the 2660 Brickell Avenue property to the BHA (Brickell Homeowners Association) board of directors. No concerns were voiced. In fact, there were several favorable comments, both at the meeting and then in the weeks following. It is my sense that the neighbors feel that the Brickell community can well use an upscale hotel and that your location is ideal for this addition. So I'd like to submit this into the record. And we had also obtained some letters from different businesses in Coconut Grove. We have a letter from the owner of Greenstreets [sic] that says that he believes that this particular type of development, which is also going to be a green LEED hotel, is strongly needed in this community. I won't go through that; I'll submit that. We also have a letter from the owner of the ISO store in Coconut Grove supporting this particular project. I am in full support of the green development of the proposed Rickenbacker Hotel at the Brickell gateway of the north Grove. And then we have a letter from H & H Jewelers also stating that he supports a proposed Rickenbacker hotel. And if we could give these to the City Clerk, that would be appreciated. I have -- because it is a rezoning, I'm just going to -- if you could indulge me for a couple of minutes, and then I'll have Mr. Holly speak, but because it is a rezoning, there is criteria that the Commission is required to look at it when a rezoning is requested, and that's what we're required to file in order to remove it. This particular amendment conforms with the Miami Comprehensive Plan. We believe it is in harmony with the established land use pattern. You have -- this is already zoned office. And with regards to removal of the SD-19, you already have all along Brickell Avenue -- you know, here along the residential area, and then also in the business district, you have high-rise buildings, high-rise residential and high-rise office buildings. We don't believe it's out of scale with the needs of the community. The proposed change maintains the same or similar population density pattern and does not increase or overtax the load of public facilities such as schools, it does not. The existing boundaries are illogically drawn. The .5 on this property is illogically drawn. We also have here that it would be a positive influence on the living conditions in that -- the neighborhood, and we have several people have said you need affordable hotels in the area, something less than 200 a night. The City ofMiami Page 151 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 light and air, doesn't change the proposed; has the same or similar impact on the property values and the adjacent area, and then the proposed change will contribute to the improvement or development of adjacent property. So we believe we meet this criteria. At this point in time, I'm going to turn the floor over to Mr. Holly with his presentation. And then, of course, I -- after Mr. Holly, we have our architects and our transportation consultant. I may address some other issues, and then would we -- we would reserve some time for rebuttal -- Chair Sanchez: All right. Ms. Pardo: -- for what is necessary. Chair Sanchez: Let's go ahead and get your experts up here, and then we'll go ahead and open it up to the public. All right. You may proceed -- William Holly: Let me be brief -- Chair Sanchez: -- with your presentation. Mr. Holly: -- but let me give you a little bit of a background and rationale. Chair Sanchez: State your name and address for the record. Mr. Holly: William Holly, 1395 Brickell Avenue. I've been a commercial real estate professional in Miami for over 20 years, starting in leasing and then running two national firms. I have a business on Brickell Avenue and a business in Coconut Grove. With the help of the City, we were able to start the first LEED-certified office building in the City ofMiami, Miami Green. That's a current photo ofMiami Green. We're actually on the tenth floor of the building, and we're looking for a TCO (Temporary Certificate of Occupancy) at the end of the year. With the help of the City ofMiami, at that point we were able to do the first green LEED-certified office building in Miami. Many of you were at the ground breaking. What we seek to do here is do the first LEED-certified green ground -up hotel in the City ofMiami. What you might not know is that as a local and a Miami native, I grew up here in Coconut Grove. I'm a former member of the Cocoanut Grove Village Council, so I take not only environmentalism but I take the community very seriously. What we've done here in the City that you might not know is the fact that we've taken Miami Green and the LEED work that we've done here in the City ofMiami and we've now taken it nationally. Our firm, which is locally based here in Miami, is developing the first green hospital in the state of Texas. We're also developing the first green medical healthcare building, actually in the City of Coral Gables. And what we'd like to develop here is the first ground -up LEED-certified hotel in the City ofMiami. Why? Why does this site need a hotel? Why do I think the community needs a hotel? Well, not only my own personal experience, but number one, we need affordable hotels in the City, and we need community hotels in the City. We have wonderful hotels; The Mandarin, the JW, the Conrad, the Four Seasons. You try to get a hotel for somebody, for your family and visiting, they're 400, 500, $600 a night. When we talk about community, everybody knows who lives in this area, you try to get in the Hampton Inn and it's sold out every night right now in Coconut Grove. The rooms for Miami visitors -- I know the City Commission has been a proponent of the redevelopment of our parks and a lot of community activities, whether it's cricket at Pace Park, whether it's Jose Marti Park and the redevelopment there. And if we're looking for families and to bring in people for these activities, we have to have some place for them to get a reasonable hotel room. This community hotel would be affordable. We're looking at an Emerald Suites project, which is a Hilton brand. It's a gateway project. When you look at this site -- and you can see it right here -- if you look at this site, this is an island. There are roads and buffers and medians 100 percent around this island. There is an 1-95 on ramp; there is an 1-95 off ramp right at this site. This site is a gateway. It is a Brickell Avenue address. It's the gateway to Brickell, Key Biscayne, Coconut Grove, and elsewhere. So this site is the entrance to these areas, which requires a great design. When you City ofMiami Page 152 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 look at this design, this isn't -- when we think of hotels in the City, we obviously, down the street, have the tallest building in the City ofMiami at the Four Seasons, which is a hotel, but that's a mixed use. We don't have, really, iconic buildings, for the most part, in hotels in the City of Miami. When you go to Sydney and the opera house, it's the first thing you see right on the water. When you go to Denver and the airport -- Does anybody know what the Denver airport used to look like? No one does, but the new airport with the sails, you do know. And growing up here on the waterfront, this building is designed to look like a boat, like a ship with a sail at the top of it. We think it'll be an icon for the Miami skyline. I'd like to shatter the myth also that you cannot build great design affordably. I think if you look at Ikea that just opened up in Broward County, you can see that just because something has good design doesn't mean that it has to be very expensive. Want to also throw this up there as well. As you -- most of you know, most of my business is office leasing. With a MUSP (Major Use Special Permit), as we've done on many of the other Brickell Avenue projects that I've been associated with, we could get an office building -- and this is a rendering of an office building that, with a MUSP on that site, we could put on the same site. This office building is 253 feet. The hotel we have proposed today is 213 feet, okay. So when I brought this project at the beginning, there were two real questions that people had. One was the height. Obviously, there's this overlay, which is almost less than a single-family home. But why do you need -- you know, why do you need such a tall building? Well, if you did an office building -- and my belief is you don't need just one more office building on Brickell Avenue -- but if you did an office building, you'd be at -- with a MUSP at 253 feet. We're at 213 feet. So I don't think -- because you change to a hotel you're actually limiting your height. You have less height than you could do in an office building. The hotel also has less traffic than an office building. The experts will get up here and say this. People objected before when we went through the Planning and Zoning, and they said, well, we're worried about traffic. You're going to have too much traffic on that road. There's too much traffic. Bottom line is -- and the expert will get here; I'm not a transportation expert -- there's more traffic with an office building than with a hotel. What we're seeking today is an -- is to develop the first ground -up LEED-certified hotel in the City ofMiami. We're seeking to put great design on a gateway into our city. We are seeking to put up a hotel that is community focused and organized. When I say that, there will be community meeting rooms within our hotel. All the associations I'm on, especially on Brickell Avenue, we have a very difficult time finding any affordable place to have our meetings, to have our luncheons and all the rest. We have great hotels in the City, but they're all very, very expensive. This will be a community -oriented hotel not only serving the community with rates of approximately $200. Also, it will be the Embassy Suites brand, so you know it will be a quality hotel within our city, and it'll be community focused with community meeting rooms. I urge you to approve the changing of the overlay for this site at 2660, and to approve what will be, once again, a record breaking, the first LEED-certified ground -up hotel in the City ofMiami. Chair Sanchez: Thank you, sir. Mr. Holly: I'd now like to bring up our architects, Robert Behar and Javier Font, who can tell you a little bit about the technical aspects of the project. Javier Font: Good afternoon. Javier Font, Behar Font & Partners. My partner, Robert Behar, 4533 Ponce De Leon Boulevard. We'll try to be as quick as possible, so if you have any questions or we leave out anything, feel free to ask. Just to touch on a couple of the things on the site before we get into the building 'cause we truly feel that this is a very unique site. Once again, it is buffered on all sides by either major roadways or the elevated on ramps to 1-95 or over to US 1 off of Biscayne. As you can see from this photograph, there are buildings anywhere from 13 to 37 stories within a stone's throw of this building, so we truly don't feel that this is something out of context with what's in the area in the City. We do feel that it is the gateway to Brickell Avenue, if you're coming down US 1 into Brickell. It is the gateway to the Grove or the Gables, if you're coming from Brickell, and it's the gateway in and out of the Key, if you're coming in on Rickenbacker Causeway. So we truly, truly feel that this is one of the special sites City ofMiami Page 153 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 that the City has. Now as we get into the plans for the building, I think it's important to point out that under an 0 zoning, we are what we would like to call as -of -right. We meet all the setbacks. We meet all the parking requirements. We meet the height. We are not asking for variances under a typical O. We're not asking for MUSP bonuses. We're not asking for anything out of the 0 zoning category. We feel that that is very important, and once again, as William started to point out, if we were to develop an office building on the site, even with the current FAR limitations that we have, we feel it is more of an impact in the City. It can be just as high. It would obviously carry almost double the amount of parking spaces that a hotel does. And even though the FAR would be less, it's actually flipped from what we have here today. We would have a building that has less FAR but it has twice as much parking garage, where now we have half the parking garage that we could have and a little more FAR. So we truly feel that the intensity of this building is less than what you can actually do as of right today on that site. And obviously, it's a better -looking building because, as you can tell from the rendering or from some of the elevations that we'll show you now, the parking is almost not visible in the building at all. Going into the design of the building, we've tried to respect the corner, which obviously is a very prominent corner. If you look at the ground floor plan, the actual corner of our site is a five -story atrium or volume that would be visible both from Rickenbacker Causeway entrance and from South Dixie, and I'll show you that as we go through the plans. There is the lobby and the restaurant component, which stretches from the corner of the building all the way back to here, and then we'll have a really nice kitchen that actually has some windows into it at that point. On South Dixie, once again, the window line comes all the way across to here for the entire length of the property, except for the entrance into the parking garage, and then there's a small drop-off area in the front on South Dixie. Chair Sanchez: Is that the portion that abuts the residents along Alice Wainwright? Mr. Font: Correct. Robert Behar: That's correct. Mr. Font: There is a small -- if you go to the east -- or we'll call it the east, as if you're going towards Brickell, you've got the overpass here, and then you've got the large buildings. If you go to -- we'll call this north, you've got the overpass again, a small residential component, and then I-95, which divides you from the Roads area. If you come south on this page, you've got a very small triangular piece of residential component, and then you've got a preserve area between you and what is the bridge to the Key. So that is that little piece, and that is the entrance to the hotel, if you will. So our best face is on the entrance to Rickenbacker and on South Dixie Highway. Chair Sanchez: So your mass and the density abuts 26th Road, right? Mr. Font: Well, it abuts 26, yes. Chair Sanchez: 26th Road. Mr. Font: The largest part of our building is on 26th -- Chair Sanchez: Okay. Mr. Font: -- correct. This is 26th. Chair Sanchez: Right. Mr. Behar: Which keep in mind there's a buffer area there also that is land owned by the County. There is a green space, like almost like a park buffering up from there, and across the City ofMiami Page 154 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 street, there you have a main road that gives you more of a separation buffer from -- even from the adjacent properties. Pamela E. Burns (Assistant City Clerk): Sony. We need your name on the record, please. Mr. Behar: Sorry. Robert Behar, Behar Font & Partners, 4533 Ponce De Leon Boulevard. Mr. Font: The second level of the hotel takes the same shape as the first, and it's actually -- some of the meeting rooms that William began to speak about and then the big, open atrium piece that we talked about on the corner. This is obviously the eyes on the street that we keep talking about and hearing about, making sure that we start to promote pedestrian areas, which we have, along both streets with the restaurant area spilling out into the outside, having some outdoor dining areas, some seating areas and such, and then straight above those, you've got some of the meetings rooms that open out and overlook those areas. So really trying to play on the eyes on the street and the -- Mr. Behar: Javier, why don't -- Mr. Font: -- pedestrian -- Mr. Behar: -- you elaborate more on that pedestrian open area? Because I think that's going to bring a lot of life to that whole area, which is important. Mr. Font: Absolutely. There is a large swale area, if you will, off of 26th Street. It is a Dade County -owned piece. It's part of the street, and it's currently just an overgrown area. We are talking about redeveloping that area, cleaning it up, and maintaining that area so it's a nice, open space. And once again, we've tried to open up the hotel lobby and the hotel restaurant to that area 'cause we think it's a really great corner. Then up above the second level, where you've got the meeting rooms and the offices that look down below, you have the pool deck on the fifth level, actually. And what we've done is we've actually opened up the building at that level, so you can actually see through the entire building, so you have this really nice pool deck area that has a pool in the open area. These areas are covered and have seating areas, lounging areas and maybe some event areas as well, and there's a gym that happens on the fifth floor, right at that corner piece, which is that prominent atrium piece right at the corner of the property once again. If we get into the elevations a little bit, just to show you the idea and the quality of the building. We've worked very hard on really trying to do a great building at this corner, really trying to do something that stands out, something that we would be proud of and the City could be proud of. On the ground floor, you've got the retail component, the big lobby piece on the corner, which actually stretches to about here, then the gym piece, and then you've got the tower of the hotel rooms. It's a single -loaded tower, so all the hotel rooms face either 26 or US 1, so they all have great views. You're looking down Brickell Avenue. You're looking at downtown. You're looking at the Key, so there is no bad hotel room on this project. As you can tell, it has a lot of glass, a lot of fenestration, just great materials. This is the piece that we've spoken about being open at the pool deck level, which -- a really nice architectural element we think. Mr. Behar: And I think on that -- I think you're right, and we have come across a developer that is very conscientious of having quality design, and he has given us the opportunity on both projects to be able to produce something that we feel is going to be very successful, very powerful, and very great for the area. And that I'd like to commend Mr. Holly because he has been very, you know, proactive in that sense. And we think this is going to be a beautiful building. It's going to do a lot of -- for -- a gateway for that -- for the whole area. Thank you. Chair Sanchez: All right. Thank you. Anyone else, Madam Applicant, you want to bring up? City ofMiami Page 155 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Holly: Yeah. I'd like you to hear from the traffic consultants. Chair Sanchez: Okay. Richard Garcia: Thank you. Richard Garcia, 13117 Northwest 107th Avenue, Suite 4, with Richard Garcia & Associates. I need to address Item I, which was mentioned earlier, part of Section 2210, which states the proposed change has the same or similar impact on traffic and does not affect the public safety to a greater extent than the existing classification, and it does not. The traffic does not have a negative effect on public safety for the following reasons. We did do a traffic impact study which followed the City's MUSP methodology, although this is not a MUSP, andl want to hand that in for the record. The traffic associated with this project has less impact than an as -of -right 50,000 square foot medical office that will then reduce the -- Commissioner Sarnoff Excuse me. Mr. Garcia: -- exposure of traffic -- Commissioner Sarnoff Why do you say as of right? Mr. Garcia: We did a comparison analysis as to what's allowed within this zoning so -- Commissioner Sarnoff So you're telling me a 50,000 medical facility is allowed with this prop -- with the SD-19 in place right now? Mr. Garcia: That's right. That's correct. Commissioner Sarnoff That can be built tomorrow? Ms. Pardo: Yes. Actually, because of the gross lot area of this particular property, they could build 50,000 square feet as of right. Commissioner Sarnoff With the SD-19 in place, with the -- Ms. Pardo: With the SD-19 -- Commissioner Sarnoff -- FAR in place? Ms. Pardo: -- overlay in place, as of right, because of the gross lot area. Commissioner Sarnoff Is that --? I want to hear from the City on that. Ms. Pardo: I do have a letter -- we had gotten a --from the Zoning Administrator, a confirmation letter with regards to the reason being -- ifI could show you, Commissioner. IfI could just show you -- okay. All right. This is the gross lot area. This is the subject property, so this is our net area. This area here is the County right-of-way. And the way that the -- Commissioner Sarnoff I understand your calculations. Ms. Pardo: Okay. Commissioner Sarnoff But what's your FAR you're working off of Ms. Pardo: The FAR I'm working off of is the .5. I took the gross lot area, which is 102,000 square feet, and multiplied that by .5. City ofMiami Page 156 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff And you end up with 50,000. Ms. Pardo: And you end up with 50,000. If you did a Major Use Special Permit and we requested the additional square footage that you could get for a PUD (Planned Unit Development) and an affordable housing bonus, that's where you could go to 75,000, but that would be with a MUSP, not as of right. But as of right today, they could go in and pull a building permit for 50,000 square feet which, depending on the size of your floor plate, would run you anywhere between a 15- or a 22-story building you could have there as of today. Pardon? Right. It would have a lot more parking because offices require one space per every 350 square feet. Right. So it creates a lot more parking, which adds to the height of your building, and that doesn't go to your FAR. But anyways, I'll turn the floor back over to our transportation consultant -- Chair Sanchez: All right. Ms. Pardo: -- just so he can finish up. Chair Sanchez: All right. Mr. Garcia: Therefore, this project would have less exposure, which would not negatively affect public safety. We did a comparison using 200 rooms and 219 rooms. We also added the traffic - - or calculated traffic for community space or meeting rooms, 10,000 square feet. This is usually incidental ancillary to the use, such as a restaurant. We also added traffic generation from 5,000 square feet of restaurant, and I'll explain later why this was important. It's a conservative analysis, in essence. The project meets the traffic requirements for a MUSP, and the driveways for this project, due to the medians, are just right in and right out, so there's no conflicting movements. Again, this would also not negatively affect public safety since the driveways would not create any conflicting movements. The results of the traffic impact study, using a person -trip methodology, yielded that the intersections -- the three intersections are all signalized. The worse signal operated at LOS (Level of Service) `D. " The arterials are at level of service "C, " so there's adequate capacity for this project. To summarize the comparison we did, we mentioned the 50,000 square foot -- it -- a 50,000 square foot medical office building would generate 12 percent more traffic than this, and if this project was to undergo a MUSP with a medical office building, the traffic would be about 68 percent more than the proposed hotel, and that's what they were alluding to, that this project generates less traffic and less impact than the others. If you have any questions, I'll be more than happy to answer them. Mr. Holly: Andl think, Joe, that's the key. Just to wrap up -- andl know you want to move on. Chair Sanchez: Yeah. Mr. Holly: To wrap up, you know, we went, and there were two issues. One was height, which I think addressed before, and the other was traffic. And as of right, we would produce more traffic with an office building than the hotel we're proposing. And the other thing I just want to mention -- and some of the people, I'll let them -- they're here, and I'll let them get in the public - - they're not part of the presentation, but we've gone to the community, many of the community organizations on Brickell, in the Grove. We have letters of support from the owners, so we have taken several months to go to the community on this and get their input on this project, several times. Chair Sanchez: All right. Mr. Holly: Thank you. Chair Sanchez: All right. Counsel, you reserve some time for rebuttal? City ofMiami Page 157 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Pardo: Yes. Thank you -- Chair Sanchez: Okay. Ms. Pardo: -- very much. Chair Sanchez: All right. Is there anyone in the public here to address this issue? Grace Solares: Yes, sir. Chair Sanchez: Okay. Ms. Solares: My -- Commissioner Sarnoff Grace -- Ms. Solares: -- name is -- Commissioner Sarnoff -- why don't you take down that sign? I'd rather look at you than the sign. Ms. Solares: Beg your pardon? Chair Sanchez: Take the sign down -- Ms. Solares: Oh. Chair Sanchez: -- or move it. Ms. Solares: Thank you. Chair Sanchez: All right. Name and address. Ms. Solares: My name is Grace Solares, vice president of the Roads Association. The Roads opposes this project. Chair Sanchez: It opposes it? Opposes it? Ms. Solares: Opposes the granting of this project. You didn't hear me well. Okay. The -- I'm going to read to you -- not from something that I've written, but something that was written by your experts. The project as proposed is not in harmony with the established land use pattern. The proposed change is not related to the adjacent and nearby districts. The proposed change does not maintain the same or similar population density pattern. The change or changing conditions make the passage of this proposed change unnecessary. The proposed change negatively influences living conditions in the neighborhood. The proposed change impact traffic and will affect public safety. The proposed change will have impact on drainage. The proposed change will have an impact on light and air to the adjacent areas. By the way, Mr. Herrera has given me his two minutes so I can actually finish my presentation. It also tells you, your expert, that the requested additional FAR will only serve to create a massive amount of development on the site that is totally out of scale and character with the surrounding area. It is found that the additional FAR they're asking for will create a domino effect in regards to the future zoning change applications for the area, and it is found the additional FAR they're looking for or requested is not necessary to accommodate reasonable development for the properties. Doesn't it seem to you very, very telling that none of the residents around residing in single-family City ofMiami Page 158 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 residential neighborhoods in that area are here to support this project? It's something strange for the counsel for the applicant has gone two miles down South Bayshore Drive to get a letter of support from somebody in the middle of the commercial section of Coconut Grove. I can tell you 'cause I did yesterday -- I couldn't do it before 'cause I was sick -- went and delivered a letter to the owners -- property owners immediately across the street. They live at Vizcaya Villas, which is the extension ofBrickell where Adrian Arscht lives and many other people live in that area. It will be a disservice to the entire residential area for you to put a hotel or to change, to take away the FD -- the Special District 19 that was placed by you at your instance, at the Commission's instant. Nobody asked you to do so. You placed it because you knew there was a problem with this piece of property, and you needed to protect the neighborhood, the residential neighborhood around this -- around that area. So I do, therefore, request, Commissioners, that you deny this atrocity. A -- changing it, deleting the SD-19 to leave it just on an 0 designation so that the -- ad infinitum can be built and the density was so huge to the disregard of the property owners immediately adjacent to them. Thankyou so much. Chair Sanchez: Thank you, Grace. Next speaker. Robert McCabe: Robert McCabe, 1601 South Miami Avenue, representing the South Miami Avenue Homeowners Association. I have a number of points to make, and would start by saying I'm pleased that the list of criteria were read off because as we went through them, it was so clear this project doesn't meet them, and the list that was just read to you is the rebuttal for each of those items. I want -- make a couple of other points. This is a two-step zoning change. Zoning change. Not a building permit. And it started when a very politically active attorney who had a home on that property got it changed from single family property to the current zoning. I also believe, although I don't have proof of it, that there may well have been covenants on the property at that time. The -- that -- which also raises a point about covenants. They disappear. They're not permanent, and people don't follow them up, and they don't know what's there. So that's -- this is how this property gets to where it is now. The next point, earlier in this agenda you approved a project because -- or you were discussing a project that might be approved because of what happened adjacent to it. What happens to -- adjacent to this so it is not a one -stepper when you do a zoning change? And zoning changes are permanent. The project is located at maybe the worst traffic nightmare in Dade County. It certainly -- the notion -- there's some strange mathematics I heard here earlier, and by the way, I'm pretty good with statistics. The notion that you're going to put a large building like that at that site -- five times, by the way, what they could put with the existing zoning, because of gross lot, which is something this City needs to get rid of because it's the thing that creates most of our problems in zoning -- and that isn't going to create any traffic? That's -- that is just simply not talking about 'cause it's not believable. And the other thing is, we heard about is that this building is going (UNINTELLIGIBLE) smaller at 250,000 square feet than something else that could be put there. What's there now is what can be put there; 50,000 square feet is what can be put there, and anything that's larger than 50,000 square feet is larger than what could go there. So the notion you're comparing it with some fictitional [sic] things -- suppose you built an office building -- by the way, at that point, they're assuming that the zoning got changed -- then the office building would have this difference from that is sort of getting off into discussion of the building when it's a zoning change. So I would say -- and by the way, there was -- there's been no discussion with any of the homeowners in that area about the project. This is the first time that have seen the drawings of the project. Andl would say that there is nothing appropriate about this project and no reason to make that kind of change in zoning at that location with single-family homes facing it on both sides. Chair Sanchez: Thank you. Mr. McCabe: Thankyou. Chair Sanchez: Thank you, Mr. McKay [sic]. All right. Next speaker. Yes, sir. Good -- City ofMiami Page 159 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Russ Borden: Good afternoon. Chair Sanchez: -- afternoon. Mr. Borden: My name is Russ Borden. I'm president of Tri-City Electric. My address is 625 Northwest 16th Avenue. My family -owned business has been a Miami business since 1946. We've been inside the City ofMiami city limits every day since that time. We are a unionized electrical contractor with over 300 employees. I'm here today to speak in favor of this project. Not only is it a beautiful project, which I believe will enhance the beauty of our city and help the area have much -needed hotel space that we don't have of the affordable nature, but will also provide valuable jobs for not only my workers but other workers that are involved in construction in the area. As we know, times are changing, and it's not very often that we're able to get behind a project and work with a developer that is receptive to companies that pay fair wages and benefits. And we speak very strongly in favor of this project and hope that you will approve it as they've requested. Thankyou. Chair Sanchez: Thank you. Next speaker. Donald Lutton: My name is Donald Lutton. I live at 3509 Southwest 1st Avenue, in the Roads. It's roughly about a half a mile from this proposed project. I came here today excited about the possibility of having a hotel in the neighborhood, affordable and available. You know, we frequently have out-of-town guests, and my in-laws come several times a year, and it's always difficult to find someplace close and nice. But after I've seen all these pictures, I'm even more than excited now about the opportunities it has for us residents. And not all the residents are against it, as some other speakers have said. I can speak for my neighbors on both sides of me, next door and across the street. We're very excited about it. We think that that particular spot that's close to our house is a gem of the City, and this addition will make it a more exciting place to go and for frequent use by people that live here and certainly people that come to see our beautiful city. Chair Sanchez: Thank you, sir. Mr. Lutton: (UNINTELLIGIBLE). Thank you. Chair Sanchez: Thank you. Next speaker. Randy Olan: Thank you, Commissioners. My name is Randy Olan. I live at 10725 Southwest 53rdAvenue. I am here on behalf of the Brickell Area Association to speak in favor of this project. My business is also on Brickell Avenue, andl have seen, over the last several years with the elimination of affordable hotel rooms, such as the Everglades and the Sheraton and so forth, that the tenants coming onto Brickell Avenue looking for office space and their guests have very few options at less than 375 or $450 a night. I think this kind of project -- first of all, I didn't know 'til today when I got here today the name of the project was the Rickenbacker, but this kind of project really would benefit my business and the businesses on Brickell Avenue, in my opinion. So I have a letter here from the Brickell Area Association in favor and endorsing this project. Thankyou very much. Chair Sanchez: Thank you, sir. All right. Anyone else? Judith Sandoval: Judy Sandoval, 2536 Southwest 25 Terrace. I have a couple of things to say going in sort of different directions. I might point out that, I believe, this morning you approved a very similar hotel with rooms in a similar price range near the Publix on 15th Street, so it's not as though the area's totally bereft of such hotels. I was going to support this project because the building is so lovely. These are very good architects whose workl am familiar with andl think City ofMiami Page 160 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 you are. However, I hope it will be built somewhere else since the Roads neighborhood is against it. This is the kind of building we need more of downtown instead of those 90 and -- 90-story buildings, which are really too much. So I commend the architects andl support the Roads neighborhood and their wish not to have their neighborhood infringed upon. Thank you. Chair Sanchez: Thank you. Anyone else? Yes, sir. Scott Perdigen: Afternoon, Commissioners. Scott Perdigen, 3660 Bougainvillea, City ofMiami. I am for this application. I'm a 17 year resident of the City ofMiami. I'm also president of Dade Marine Institute, which is a private nonprofit on Virginia Key. We have employees and consultants always coming to town. Lodging is a problem for us. Tourism needs beds. Beds means dollars, means jobs, andl support this project. I think the design, the environmental concerns are in line. This is the gateway to the Grove, the gateway to Key Biscayne. It's the end of 95, and this project fits into that space, andl appreciate your consideration. Chair Sanchez: Thank you, sir. Mr. Perdigen: Thank you. Chair Sanchez: Thank you. Anyone else wishing to speak on the item, either in favor or in opposition? All right. The public hearing is closed at this time; coming back. You have a couple of minutes for rebuttal -- Ms. Pardo: Yes. Chair Sanchez: -- and then it comes to the Commission. Ms. Pardo: I will be brief. We believe that this is a perfect location; that it would not be out of character; that it's already zoned office. We're not seeking to put anything there that we could not currently place there with regards to being allowed to have a hotel or an office. That's currently allowed under the office district regulations. With regards to meeting with the neighborhoods, we went to the Brickell Area Homeowners Association, which is right there. We have a letter of support, which we submitted to the record. With regards to our rendering, there was a comment that somebody had never seen the building before. When we went to the Zoning Board and several of the same people were there, we had the same rendering. So we've had it -- I had also been in contact with Collin Veeter, who's the president of the South Miami Homeowners Association, and he had -- I had asked him, you know, when's your next meeting? He had said it was in December. They were busy; it was the holiday time. He said he would get in touch with me, let me know, and we never -- he never got back to me, so we didn't have that meeting. But Mr. McCabe had seen it at the Zoning Board. We -- there was a comment made that all of the Roads is opposed to it. That's not true. There may be some people from the Roads that are opposed to it, but the entire Roads is not opposed to it. And we also had commented about the voluntary covenants, so it's not as if anything ad infinitum would be built there. It would be limited to the rendering that we're showing you here today for the hotel. And with that, we think that it's an appropriate -- it's a perfect location; it being the gateway and it being totally buffered by three very large streets and expressway ramps. And we're here to answer any questions -- Chair Sanchez: All right. Ms. Pardo: -- that you may have, and we'd hope you'd support it. Chair Sanchez: That concludes the public discussion. That concludes the applicant's presentation, and it comes back to the Commission. Commissioner Sarnoff, you're recognized on PZ. 13, which is an ordinance on first reading. City ofMiami Page 161 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Orlando Toledo, have you reviewed any of the calculations of this project? Orlando Toledo (Senior Director, Building, Planning & Zoning): No, I have not, Commissioner. Commissioner Sarnoff All you have done is reviewed the zoning change, correct? Mr. Toledo: Absolutely. Commissioner Sarnoff So they have not submitted to you any calculations that they've put before this Commission today, correct? Mr. Toledo: Correct. I have not. Commissioner Sarnoff Let me just say this about your project. I think this is a gorgeous building. I think this would look -- it is an outstanding building on Brickell. Andl think the green part of this is magnificent And while I think it should be required, it presently is not required, andl really applaud this building. But this building belongs on Brickell. This building does not come into the Grove. This building is -- would be in Coconut Grove, and you would be right next to an R-1 neighborhood, and that is wrong. It is a 20- or 21-story building, and it is just too large. And if you just look at the building itself look at it sitting on its triangle, it is a massive building in terms of its FAR as you have it planned. The best we researched was that the City Commission years ago required this SD-19 as a result of the two-story office building. I have no reason and see no cause to change what this Commission did years and years ago to prevent -- to keep this SD-19 here. This does not fit in the neighborhood of Coconut Grove. This is not an appropriate use of this land in Coconut Grove. And if any builder wants to hear what think in terms of where things go, once you cross Rickenbacker Causeway, you're in Coconut Grove. Coconut Grove will not receive high-rise buildings. That's just the way I see it. Coconut Grove is a community, and it does not require a community hotel. And thank goodness today, with PZ.2, we passed a hotel just down the block from you with 213 units of hotels [sic], which when they came to see me -- the hotel units I should say -- will be $176 a night. So thank goodness we have a community hotel coming because I've heard everybody get up there and say how bad we need a community hotel. Well, gosh, we did something right today; we passed a community hotel. So I would really impress upon my fellow Commissioners to join me in a motion to deny this zoning change. Chair Sanchez: All right. A motion has been proffered by the district Commissioner -- Commissioner Regalado: Second. Chair Sanchez: -- to deny. Ms. Pardo: Chairman, could l just put in the record --? There was a comment with regards to -- and it was the way it was worded -- please. Chair Sanchez: Whoa, whoa, whoa, whoa. Wait a minute. Wait a minute. Ms. Pardo: I'm asking your indulgence. Chair Sanchez: There has been a motion and a second, all right? I got to establish the record. The motion has been made by Commissioner Sarnoff, second by Commissioner Regalado. Now if -- you may want to add something. The district Commissioner, will you allow that? Commissioner Sarnoff Yes. City ofMiami Page 162 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: All right. Ms. Pardo: Thank you very much. You had asked Mr. Toledo if he had reviewed the zoning. I have a letter here that we had submitted to Lourdes Slazyk, which is the Zoning Administrator, confirming the gross lot area with regards to this particular property. So we did get a confirmation from the Zoning Department. It did not go to Mr. Toledo because it's supposed to go to the Zoning Administrator, which is Ms. Slazyk. And it was the way you had worded it to him where you had asked him has he specifically -- Commissioner Sarnoff Well, I didn't mean to restrict it to you, Orlando. I meant Planning and Zoning. Mr. Toledo: Andl do have Robert here, and he could have -- he could actually answer that. I did see the letter, and the letter does talk about gross lot, but it doesn't mention anything regarding the 50,000 square feet of building or anything that has to do with what the project was all about. Commissioner Sarnoff Right. And we're only here today on a zoning change? Mr. Toledo: Absolutely. Commissioner Sarnoff So what this building could or couldn't look like is certainly irrelevant to whether we're going to change zoning? Mr. Toledo: Yes. Commissioner Sarnoff Okay. Ms. Pardo: Is it the --? I mean, you had mentioned that you thought it was just too tall for this particular lot. Commissioner Sarnoff It's too -- Chair Sanchez: I think that's the issue. Commissioner Sarnoff Right. It's too massive. Ms. Pardo: It's too massive. If it was -- if we came back with a building that was lower in height, would you consider that? Commissioner Sarnoff I'd consider anything you'd present to me on any other given day. Ms. Pardo: All right. So then couldl request a continuance? And I'll speak with my client and we could limit it as to -- with regards to, you know, limit the discussion in a future time so we don't go through it all over again. Commissioner Sarnoff What benefit would that provide to you? Help me with that. Ms. Pardo: Well, we think that -- we think and we had met with other Grove people as well, that there is quite a need for a community hotel. And there may be one in PZ.2, but PZ.2 is kind of further downtown, farther away from the residents who live in Coconut Grove, that part of town. That's -- you know, PZ.2 is in the heart of the Brickell area, which is more Brickell business district, not where you have your residences. City ofMiami Page 163 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: The concern here, I think it's density and mass. That's the issue. Commissioner Sarnoff Right. Chair Sanchez: So if -- I understand, as an attorney, that you'd rather that this be deferred or continue to come back with another project. I think -- but that's up to the Commission, and there's a motion and a second out to deny. So before we end, does the maker of the motion and the second want to continue with a denial or do you want to continue and have them come back with another project or a lower scale project on density and mass? Commissioner Sarnoff I -- by denying this, I don't believe that we are precluding them from coming back to us. Am I wrong on that? Ms. Pardo: I would be precluded. Chair Sanchez: Yeah. I thinkyou do. Commissioner Sarnoff For how long? Chair Sanchez: They got to start all over. Commissioner Sarnoff For one year? Maria J. Chiaro (Assistant City Attorney): Yes. You are precluding -- Ms. Pardo: It's either a year or year and a half. Ms. Chiaro: One year. Ms. Pardo: We just think it's so much better than what you could build today. And it's -- and we strongly believe that it is something needed by the community, andl thinkyou have a lot of people who came out here today -- who came out here because they also thought that it was something -- Commissioner Sarnoff You know, this -- Ms. Pardo: -- that would be needed for this community. Commissioner Sarnoff -- community angle thing is a funny thing to me. You know, you could talk to me about jobs, you could talk to me -- you know, I'll listen to you about jobs, but this community angle thing, I'm somewhat perplexed by it. You know, we need $200 a night hotel rooms. You know, I just can't sit here, not without knowledge, knowing that the Doubletree is $200 a night. I can't sit here without knowledge knowing that the Grand Bay is less than $200 a night. You know, depending upon the season, the Grand Bay goes down to $120 a night. So I sit here and listen to a pitch. You're pitching -- and this is what you're pitching. You go out, you buy a triangle of land, and you pay "X" dollars for it. I don't even want to know what you paid for it, but you did it knowing you had an SD-19 overlay on it. You knew what your FAR is when you bought it. But then you turn around and you come to this City Commission, like every other developer does, you pay "X" dollars for something, you up -zone your land. We don't know absolutely for sure that you're going to build it, but let's say even that you do, and you do it with the full knowledge that you're going to upzone your land. And that's what you're doing. And you know, I guess if you've done it for years and years, you're going to continue doing it for years and years. I just don't understand it. You bought something with an SD 19 -- Mr. Holly: Marc, let me explain it to you, okay? I bought something where I can build an office City ofMiami Page 164 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 building. You know that's my business. Okay. I can put a medical office building with my FAR right today. It's going to be the same massing that you're complaining about. It's going to be the same height that you're complaining about. It will be more traffic than you're complaining about. So what I'm saying is I looked at the site and said yeah, I'm buying this. Do we need another office building? I know how many square feet are coming up. I think this would be better as a hotel. And you know what? It's right there on the water. And you know what? It's right there by 1-95 and everything like that, and it's crap. Okay. You can tell me all day long that there are single-family homes there. I understand that. And those people have been here today supporting me, as well as going against. I also know there's an 1-95 off ramp; there's an 1-95 on ramp. I go there. There's a Dade County right-of-way. There's bums there. There's needles there. I mean, is it better today? So all I'm saying is, yeah, I bought it, and yeah, we can do an office building and we don't have to come back here, but I thought it would be better to do a hotel. I think this is one hell of a design. Chair Sanchez: Listen, can I proffer just a suggestion? Mr. Holly: Sure. Chair Sanchez: Are you prepared to lower the density and maybe reduce the mass of your project? Mr. Holly: If that's the one issue -- I'm prepared to do that under the assumption that it's better as a hotel site than as an office site. Chair Sanchez: All right. This is -- it's an ordinance on first reading. Okay. We could do several things. One, the item could be continued. Two, it could be voted down. We could pass it on first reading -- Ms. Pardo: Pass it on first reading. Chair Sanchez: -- which I think it's not going to go that way, but those are the options that you have on the table. So, come on. We got to make a decision on this 'cause we have other items to address. So Commissioner -- Commissioner Sarnoff I'll -- you know what I'll do? I'll withdraw my motion to deny and do a motion -- what's the one where you don't have a date certain? Ms. Pardo: Defer. Chair Sanchez: That's to defer. Commissioner Sarnoff That's just a straight defer. Priscilla A. Thompson (City Clerk): Defer it -- Commissioner Sarnoff All right. Ms. Thompson: -- indefinitely. Commissioner Sarnoff I'll do a motion -- Chair Sanchez: Allow them the opportunity to continue to work on -- oh, okay. So there's a motion to defer. Commissioner Sarnoff A motion to defer, andl strongly recommend that you meet with all City ofMiami Page 165 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 homeowners -- Chair Sanchez: Defer indefinitely. Commissioner Sarnoff -- associations. Ms. Thompson: If you defer indefinitely, that's usually about six months. Commissioner Sarnoff That's -- I like that. Motion to defer indefinitely. Ms. Pardo: Can we -- could we just ask to defer? We will meet with the other homeowners associations; we'll get those meetings -- Chair Sanchez: All right. Ms. Pardo: -- and then after we've met with them, we'll request to be put back on. But we won't request to be put back on -- andl would assume they'll meet with us -- Chair Sanchez: All right. Ms. Pardo: -- in good faith. Chair Sanchez: All right. Why don't you just defer the item? Commissioner Sarnoff Motion to defer. Chair Sanchez: Okay. There's a motion to defer. So there was no -- Commissioner Gonzalez: Second. Chair Sanchez: For the record on PZ.13, which is an ordinance on first reading, there was a motion to deny. The motion was withdrawn before a vote. The motion was changed to defer the item. Second by Commissioner Gonzalez. No further discussion. The presentation was made. All in favor -- no. It's an ordinance, but it's a deferral. All in favor, say "aye." The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay. " Motion carries. So thank you. Ms. Pardo: Thank you very much. Chair Sanchez: All right. You live -- Unidentified Speaker: You should never upzone anything. Chair Sanchez: You live -- Commissioner Sarnoff You live for -- Chair Sanchez: -- to fight another day. Commissioner Sarnoff -- to go out another day. Commissioner Sanchez: All right. It's 5 o'clock somewhere, as Jimmy Buffet would say, but we City ofMiami Page 166 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 have some items that were asked to be taken up at the end of the Commission meeting. I definitely want to get you home to your families. I'm sure you got better things to do. All right. Commissioner, which item do you want to take up first? Commissioner Sarnoff We had -- I'm sorry. I've got a little disheveled. PZ.14 07-01024Iu ORDINANCE First Reading 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, PURSUANT TO SMALL SCALE AMENDMENT PROCEDURES SUBJECT TO §163.3187, FLORIDA STATUTES, BY CHANGING THE LAND USE DESIGNATION OF 1.7± ACRES OF REAL PROPERTIES LOCATED AT APPROXIMATELY 70 NORTHWEST 36TH COURT, 64-66 NORTHWEST 36TH COURT, 3665-69-71-73 NORTHWEST FLAGLER TERRACE, 3670-72 NORTHWEST 1ST STREET, AND 58 NORTHWEST 36TH COURT, MIAMI, FLORIDA, FROM "DUPLEX RESIDENTIAL" TO "RESTRICTED COMMERCIAL"; MAKING FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. Item #4 PAB - 07-010241u - .pdf 07-010241u PAB Reso.pdf 07-010241u CC Analysis.pdf 07-010241u CC Application & Supporting Documents.pdf 07-010241u School Board Analysis.pdf 07-010241u CC Legislation (Version 2).pdf 07-010241u & 07-01024zc CC ExhibitA.pdf 07-010241u CC FR 01-24-08 Fact Sheet.pdf 07-010241u & 07-01024zc Disclosure to Support or Withhold Objection.PDF LOCATION: Approximately 70 NW 36th Court, 64-66 NW 36th Court, 3665-69-71-73 NW Flagler Terrace, 3670-72 NW 1st Street, and 58 NW 36th Court [Commissioner Tomas Regalado - District 4] APPLICANT(S): Ben Fernandez, Esquire, on behalf of Jorge Cruz Gomez and Maria D. Cabrera, The Eldy Maza Pick Revocable Living Trust, The Amended and Restated Elizabeth Anton-LaRossa Revocable Trust, Lago Capital Investments, Inc. FINDINGS: PLANNING DEPARTMENT: Recommended denial. PLANNING ADVISORY BOARD: Recommended denial to City Commission on October 3, 2007 by a vote of 8-1. See companion File ID 07-01024zc. PURPOSE: This will change the above properties to Restricted Commercial. Motion by Commissioner Gonzalez, seconded by Vice Chair Spence -Jones, that this matter be CONTINUED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Spence -Jones Absent: 1 - Commissioner Regalado City ofMiami Page 167 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff You want to do 5 and 6 right quick? Chair Sanchez: All right. Anyone from the public that's here on any of the PZ (Planning & Zoning) items that want to defer any of the items? All right. Well, let -- we got to come up, and then we'll see if we could -- what item would -- do -- well, that you will be recommending that we defer, or you're asking for a continuance is what you're asking for, right? Michael Gil: For a deferral -- Chair Sanchez: A deferral. Mr. Gil: -- for one month. Chair Sanchez: Well, it's a continuance, not a deferral, correct? Priscilla A. Thompson (City Clerk): To the next meeting, yes, that's correct. Chair Sanchez: Yes. Mr. Gil: Correct, to the next -- Ms. Thompson: Name for the record, please, Chair. Chair Sanchez: Which item is that, sir? Mr. Gil: Sure. This would be item PZ.14 and PZ.15, companion item. Chair Sanchez: Okay. Is there --? Ms. Thompson: May I have a name for the record, please, Chair? Chair Sanchez: Name, sir, and address -- Mr. Gil: Sure. Chair Sanchez: -- for the record. Mr. Gil: Michael Gil, with the firm of Bercow Radell and Fernandez, offices at 200 South Biscayne Boulevard; along with my colleague, Ben Fernandez. Chair Sanchez: All right. Is there a motion to continue the item? Commissioner Gonzalez: Move it. Chair Sanchez: There's a motion by -- Vice Chair Spence -Jones: Second. Chair Sanchez: -- Gonzalez, second by the Vice Chair. Any discussion on the item? No. It's a continuance to the next PZ item [sic]. All in favor, say "aye." The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay." Madam Clerk, for the record, that was PZ.14 and PZ.15. City ofMiami Page 168 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Thompson: Correct. Chair Sanchez: All right. Ms. Thompson: Thank you. PZ.15 07-01024zc ORDINANCE First Reading AN ORDINANCE OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S) AMENDING PAGE NO. 33, 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 "R-2" TWO-FAMILY RESIDENTIAL TO "C-1" RESTRICTED COMMERCIAL FOR THE PROPERTIES LOCATED AT APPROXIMATELY 58, 64, 66, 70 NORTHWEST 36TH COURT, 3665, 3669, 3671, 3673 NORTHWEST FLAGLER TERRACE AND 3670, 3672 NORTHWEST 1ST STREET, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. 07-01024zc ZB Analysis (OLD).PDF 07-01024zc ZB Analysis (NEW).PDF 07-01024zc Zoning Map.pdf 07-01024zc Aerial Map.pdf 07-01024zc Letter of Intent.PDF 07-01024zc Application & Supporting Docs.PDF 07-01024zc ZB 11-19-07 Fact Sheet.pdf 07-01024zc ZB Reso.PDF 07-01024zc CC Analysis.pdf 07-01024zc CC Legislation (Version 2).pdf 07-010241u & 07-01024zc CC ExhibitA.pdf 07-01024zc CC FR 01-24-08 Fact Sheet.pdf 07-010241u & 07-01024zc Disclosure to Support or Withhold Objection.PDF LOCATION: Approximately 58, 64, 66, 70 NW 36th Court, 3665, 3669, 3671, 3673 NW Flagler Terrace and 3670, 3672 NW 1st Street [Commissioner Tomas Regalado - District 4] APPLICANT(S): Ben Fernandez, Esquire, on behalf of Jorge Cruz Gomez and Maria D. Cabrera, The Eldy Maza Pick Revocable Living Trust, The Amended and Restated Elizabeth Anton-LaRossa Revocable Trust, Lago Capital Investments, Inc. FINDINGS: PLANNING DEPARTMENT: Recommended denial. ZONING BOARD: Recommended denial to City Commission on November 19, 2007 by a vote of 5-0. See companion File ID 07-010241u. PURPOSE: This will change the above properties to C-1 Restricted Commercial. The applicant has proffered a covenant for these properties. City ofMiami Page 169 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Motion by Commissioner Gonzalez, seconded by Vice Chair Spence -Jones, that this matter be CONTINUED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Spence -Jones Absent: 1 - Commissioner Regalado [For minutes related to item PZ.15, see companion item PZ.14.] PZ.16 07-00796x RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), GRANTING THE APPEAL, REVERSING THE DECISION OF THE ZONING BOARD AND THEREBY DENYING A SPECIAL EXCEPTION AS LISTED IN ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, ARTICLE 6, SECTION 602.4, PERMITTED PRINCIPAL USES AND STRUCTURES, TO ALLOW A SUPPER CLUB AS PER "C-1 ", SUBJECT TO ALL APPLICABLE CRITERIA, FOR THE PROPERTY LOCATED AT APPROXIMATELY 3015 GRAND AVENUE, #320 AND #410, MIAMI, FLORIDA. 07-00796x Analysis.PDF 07-00796x Zoning Map.pdf 07-00796x Aerial Map.pdf 07-00796x Letter of Intent.pdf 07-00796x Application & Supporting Docs.pdf 07-00796x Plans with OLD Zoning Write-Up.pdf 07-00796x ZB 07-09-07 Fact Sheet.pdf 07-00796x ZB Reso.pdf 07-00796x Appeal Letter.PDF 07-00796x Zoning Write -Up - NEW.PDF 07-00796x CC Legislation (Version 3).pdf 07-00796x CC Legislation (Version 4).pdf 07-00796x Exhibit A.pdf 07-00796x CC 12-13-07 Fact Sheet.pdf 07-00796x CC 01-24-08 Fact Sheet.pdf 07-00796x--Submittal-Planning Advisory Board. pdf 07-00796x-Submittal-3015 Grand Avenue. pdf 07-00796x-Submittal-Application for Special Exception. pdf 07-00796x-Submittal-Application for Special Exception. pdf 07-000796x-Submittal-Excerpt from the July 9, 2007 Planning & Zoning Board Meeting.pdf Motion by Commissioner Sarnoff, seconded by Commissioner Gonzalez, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 4 - Commissioner Gonzalez, Sarnoff, Sanchez and Regalado Absent: 1 - Commissioner Spence -Jones R-08-0057 Direction by Commissioner Sarnoff to the Administration and the City Attorney to review the discussion on Item PZ.16, investigate the allegations made by residents regarding CocoWalk, and take any action necessary if said allegations prove true. Chair Sanchez: All right. Which other item, Commissioner Sarnoff? Commissioner Sarnoff PZ (Planning & Zoning) -- I believe it's the -- City ofMiami Page 170 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: PZ.16. All right. That's you too? Louis Terminello: Yes, sir. Commissioner Sarnoff That's the appeal. Mr. Terminello: Different hat now. You're wearing a different hat now. Chair Sanchez: Hey, I'm just glad you're here. All right. This is a special exception appeal. Sir, you get to go first. You're the appellant? Mr. Terminello: I don't go at all. I'm the -- Chair Sanchez: Huh? Mr. Terminello: -- appellee. Katherine Komis: It's my appeal. Chair Sanchez: Okay. I'm sorry. I didn't know who was on -- who's on first? Ms. Komis: Who's on first? Again, my name is Katherine Komis. I live at 3304 Virginia Street, andl am the -- I have the following to say about the appeal. Let me explain first that I'm asking you to please grant my appeal, which would deny Visions [sic] Nightclub, Apples [sic] Martini Bar & Lounge the special exception of SD-2 zoning, allowing them to serve alcohol until 5 a.m. This club is located in CocoWalk at 3015, so this is an appeal to the zoning decision. Chair Sanchez: All right. You know, I would -- Ms. Komis: Should go on? Chair Sanchez: -- love to have, on these issues, a full Commission. Mr. Terminello: Right, and we're going to move for a deferral. Chair Sanchez: Andl think, with all due respect, on these issues, we should have a full Commission. Now one Commissioner being out -- Ms. Komis: Can I just say that this began in, I think, June? This has been postponed until January 24. I think Mr. Shahnazi asked, because he was out of town for -- during the summer, and then it came to the Commission in November, and the Commission schedule was so full that it was postponed again -- or was that December? And now we're at January, so this has been going on for a very long time, so it becomes more and more difficult for everyone as, again, today, when this was at the Commission, there were many people here. Now today, there are very few people. Chair Sanchez: All right. Let's hear it. Ms. Komis: You know, it's only -- it's 6 o'clock so there -- you know, when the Zoning Commission [sic] heard it, there were -- room was full, so now we're starting to lose our momentum because of the time and the numbers of times it's been -- Chair Sanchez: I'm just saying -- Ms. Komis: -- postponed. City ofMiami Page 171 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- that -- Ms. Komis: I understand. Chair Sanchez: -- it would -- in the best -- in the due process, to make sure that every -- Ms. Komis: But I'm -- Chair Sanchez: -- but it's okay. We're going to move on with it. Ms. Komis: Yeah. Chair Sanchez: I just have -- I'm uneasy -- Ms. Komis: I understand -- Chair Sanchez: -- voting on -- with just three present. Ms. Komis: -- but the thing is, we've been doing it for months. Chair Sanchez: All right. Ms. Komis: All right. Chair Sanchez: Let's go. Ms. Komis: So again, I'm asking -- Chair Sanchez: PZ.17's a resolution. Ms. Komis: So I'm asking -- I'll start over -- to please grant the appeal, which would deny Visions [sic] Nightclub and Apples [sic]Martini Bar Lounge the special exception ofSD-2 zoning, allowing them to serve alcohol until 5 a.m. My appeal is based on three points. The first one is compliance and Code enforcement. I just want to say this. According to the City Code, a nightclub is defined as a vendor of liquor and other alcoholic beverages whose sale is by the drink and where the place of business is located within any building establishment -- and this is the important part -- and operated for the purpose of providing full -course meals and refreshments prepared on the premises, together with vaudeville theatrical or dancing, and where such place of business operates after 11 full -- 11 p. m., and where full -course meals, alcoholic beverages, and refreshments prepared on the premises are served and sold to the public in connection with such -- you know, with vaudeville theatrical, et cetera. In addition to space required by chairs and tables for service offull-course meals to not fewer than 200 persons, which shall be set up and maintained, there shall be provided afloor space of at least 400 square feet located in one unit and on the same floor, suitably prepared for dancing, free from table -- et cetera. My point is that a nightclub is, by definition, a place that serves four -- full-course meals and that is the major portion of their business. A supper club is a vendor of liquor and other alcoholic beverages whose sale is by the drink, and who is located in a building or portion thereof where food is prepared and served for pay and for consumption on the premises with accessory provisions for entertainment on a year-round basis. So per the application for special exception, the applicant (UNINTELLIGIBLE) "allow a bar in an existing restaurant, within approximately 7,480 square feet of restaurant area, and approximately 4,329 square feet of bar area. These are confusing zoning issues. Is the current Visions [sic] Nightclub a restaurant? A restaurant requires, andl quote, `full -course meals with a full -service kitchen, including stove, refrigerators and oven, and food and nonalcoholic City ofMiami Page 172 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 beverages must be at least 60 percent of sales." I don't think that that is the business that Visions [sic] Nightclub andApples [sic]Martini Bar are doing. So my point is that the current establishment is not in compliance, andl question whether a noncompliant business should be given a special exception. To be given the opportunity to be considered a bar means that, quote, "Food is sold as incidental to the alcohol," and according to Code, would be open until 3 a.m. So the applicant wants to be a bar and then wants to be given a special exception to stay open until 5, even though he's not in compliance with current zoning. That's a bit confusing, but that's the nature of what's going on here. Further, the intent of SD-2 zoning states that, quote, "The commercial center of Coconut Grove is intended to encourage innovative site planning and architectural design and to create opportunities for combining residential and nonresidential uses in a pattern minimizing potential adverse effects of such combination." And I think many of the residents who have come to these meetings in the past have listed long lists of the things that have been adverse effects. The applicant brings 12,809 square feet of 5 a.m. club space to the Grove. That does not seem to keep -- be in keeping with the even combination. The adverse effects, as I said, have been listed many times; traffic, noise, crime, property damage. I live right there, and the noise, the property issues, the crime is really difficult So my second criteria for asking for your -- to deny this appeal. CocoWalk is considered a specialty retail center. However, according to the City Code, quote, "The retail specialty designation does not automatically allow them to serve alcohol 'til 5 a.m. If any bar or liquor establishment within CocoWalk wants to serve alcohol after 3 a.m., they would require a special exception." Now, this was my big question for the Zoning Commission [sic]. What's the criteria for the special exception? Is -- and it says, is listed in the Zoning Ordinance, Section 1305.3, for use and occupancy criteria. Section 1305.3.1, Manner of Operation states, "Review for adequacy shall be given to the manner in which the proposed use will operate, given its specific location and proximity to less intense uses. Particular consideration shall be given to protecting the residential areas for excessive noise, fumes, odors, commercial vehicle intrusion, traffic conflicts, and the spillover effect of light." These are all -- so my appeal is based on this question. What criteria is being used for special exception? Who gets the privilege? Is the future of the Grove going to be economically dependent on the 5 a.m. clubs? In an article in the Miami Herald, dated Sunday, September 30, 2007, Gary Sims, president of Nikki Beach Hotels and Restaurants, speaking about Nikki Grove -- Nikki Coconut Grove, said, quote, "The venue most likely will operate from 4 p.m. to 3 a.m., though a 5 a.m. closing time isn't out of the question." So will Nikki Beach also be granted the privilege? Where does it begin, where does it end, where does it stop? My last issue for my appeal has to do with crime. This issue was not clearly addressed by the Zoning Board. As you heard earlier, the letter that was sent to the Zoning Board by Officer Braga was not heard. Since that meeting, several representatives of the Police Department have spoken publicly about the clear connection between the 5 a.m. closing and crime. Andl think they've left. Sergeant Hernandez said, at the town hall meeting that was sponsored by Commissioner Sarnoff, quote, "There is a direct correlation between crimes and clubs after 3 a.m., especially with respect to car break-ins, robberies, and assaults. People park and are accosted. Club goers go to buy drugs and get robbed" End quote. In fact, there was a double stabbing at Visions [sic] in August. I have met with Mr. Shahnazi personally, and he suggested, as he has here tonight, that he would pay for more off -duty police officers. My experience with Club Life -- and know that Club Life is no longer, but this is a credibility issue -- which was next door to my residence until December, I think, of 2006, leaves me very skeptical about the community safety being dependent on officers paid by a club owner. Andl won't get into the details of that unless you want me to -- Chair Sanchez: No. Ms. Komis: -- but it was not a good situation. We clearly need more police in Coconut Grove, but my experience tells me that this is not the way to do it. In closing, my appeal pertains specifically to Visions [sic] Nightclub andApples [sic] Martini Bar & Lounge based on all of the previous reasons. This is the time to stop giving the special exceptions. Some people said, well, you know, do -- when -- do we give it to this person and not to the next. This is the time to stop City ofMiami Page 173 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 the special exceptions. So again, I ask that you please grant my appeal, which would deny Visions [sic] Nightclub, Apples [sic] Martini Bar & Lounge, the exception of SD-2, allowing them to serve alcohol until 5 a.m. Thank you. Chair Sanchez: Thank you, ma'am. It is a resolution. Whoever's in favor and in opposition will have an opportunity -- I do have one question. It was a very vital question. And that is, what's to prevent others from getting the special exception? If anyone can get a special exception extended from 3 to 5 -- I mean just about every nightclub that opens up or restaurant now, either in Mary Brickell, downtown, they're all pushing for it . Ms. Komis: That was my question, sir. Chair Sanchez: Yeah. Ms. Komis: What is the criteria? Chair Sanchez: Exactly. What is the --? Ms. Komis: What are we doing, you know? Chair Sanchez: That's a very important question that needs to be answered on the record. Orlando Toledo (Senior Director, Building, Planning & Zoning): Mary Brickell doesn't need it, first of all, because of the fact that they're an entertainment district, so they could open until 5. If not, then they have the ability to go and have a -- yeah, to have a special exception and open 'til 5. Chair Sanchez: All right. How 'bout --? Mr. Toledo: That's under the current regulations right now. We would have to change the -- Ms. Komis: It is my understanding -- Mr. Toledo: -- Code. Ms. Komis: -- that CocoWalk is not an entertainment district. It's a special retail -- What is it called? A special retail something, but it's not an entertainment district. Mr. Toledo: I believe CocoWalk is a special -- Ms. Komis: Yes. Mr. Toledo: -- retail special district. Ms. Komis: Yes, yes. Mr. Toledo: Right. Chair Sanchez: All right. Ms. Komis: But it's not an entertainment -- so that's why I was saying in my thing is that it does not automatically assume that you can have a 5 a.m. license. You have to get a special -- Chair Sanchez: Special exception. City ofMiami Page 174 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Komis: -- exception. And the -- Chair Sanchez: From 3 to 5. Ms. Komis: -- which -- and the issue is, what is the criteria for the special exception? Chair Sanchez: What is the criteria for the special exception? That's a pretty simple question. Doesn't get any simpler than that. Ms. Komis: According -- Chair Sanchez: Got to have `X" amount of feet, "X" amount of tables, `X" amount of drunks. Ms. Komis: According -- as I said, according to my research, the special -- you know, the Zoning Ordinance, Section 1305.3.1, `Particular consideration shall be given to protecting the residential areas from excessive noise, fumes, " et cetera, but it's kind of vague. Chair Sanchez: It's very vague. Ms. Komis: So if -- who -- where do we stop? Chair Sanchez: Can we answer this question? Ms. Komis: Does Mr. Shahnazi's attorney could answer that question? Chair Sanchez: The attorney doesn't work for the City. Ms. Komis: Yes, I know. Mr. Terminello: IfI may try to help you answer the question. Chair Sanchez: No, no, no, no, no, no, no, no. Mr. Terminello: No. Chair Sanchez: We need the City to answer that question, counsel. And if not, then we need to address that language to make sure that it is -- Ms. Komis: That's what l found -- that was -- Chair Sanchez: -- clear on who could get it and who can't. Ms. Komis: I did a lot of research on this. The NET (Neighborhood Enhancement Team) Office helped me with this. I read everything could find That's what l found. I'm not an attorney, but that's what I found Chair Sanchez: No. That's very vague . Mr. Toledo: Commissioner, I'm sorry. What's the question? Chair Sanchez: The -- repeat the question. Ms. Komis: What is the criteria for giving the special exception to somebody who already holds a license 'til 3 a.m.? What l found was the Zoning Ordinance, Section 1305.3 . City ofMiami Page 175 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Maria J. Chiaro (Assistant City Attorney): Mr. Chairman, you -- Chair Sanchez: Yes? Ms. Chiaro: -- wish for me to respond to that question? Chair Sanchez: I want someone to respond to that question. Ms. Chiaro: The special exception is a application that can be made by a property owner with the granting body, whether it's the -- in this case, it's the Zoning Board who looks at a use that is allowed. The use is permitted but the Zoning Board can attach conditions. So just as you look at other special exceptions, you need to consider all of the 1305 criteria in granting or denying this special exception. The ability to deny the special exception must be accompanied by findings that there are no conditions under which this use could be compatible with the district that it's in. They're the findings that you need to make; that there is no scheme or conditions -- that is, in this case, there's no security requirements, there's nothing you could do to make this request for a special exception fit into the district. So that's your criteria, 1305 criteria, just as the appellant has offered to you. Chair Sanchez: All right. Ms. Komis: It doesn't read that way. I mean -- and I'm not an attorney, but it doesn't read that way. Commissioner Sarnoff Can I see that? Can I see it? Ms. Chiaro: Well, I'm trying to translate it from the way the Code reads. Commissioner Regalado: Mr. Chairman, a question. Chair Sanchez: Yes, sir. You're recognized. Commissioner Regalado: Madam City Attorney, all special exceptions require public hearings, right? Ms. Chiaro: All special exceptions? Chair Sanchez: Yes. Ms. Chiaro: Yes. Commissioner Regalado: Okay. And does the noise ordinance keep ticking, even if you have a special exception? Ms. Chiaro: Even with a special exception, one must comply with the noise ordinance. There's no exemption from the noise ordinance because there is a special exception. Commissioner Regalado: Right. And loitering -- Ms. Chiaro: And -- Commissioner Regalado: -- and nuisance -- Ms. Chiaro: There are no -- correct. City ofMiami Page 176 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: -- and -- Ms. Chiaro: That is correct. There are no exemptions from our other regulatory ordinances, merely because there is a special exception. The special exception may impose additional conditions. Commissioner Regalado: Which? Ms. Chiaro: In order to allow for the use in the district in which it's requested. Commissioner Regalado: Like could it be valet parking only? Ms. Chiaro: Yes, sir . Commissioner Regalado: And no one can park around somewhere? Ms. Chiaro: Yes, sir. That could be one of the conditions imposed. Chair Sanchez: All right. Okay. All right. Public -- the public -- the meeting -- the public hearing is open. Jim McMaster: Jim McMaster, 2940 Southwest 30th Court. I was speaking with Barbara Lange about the 5 a.m., and the issue came up, is CocoWalk itself adhering to all the special exceptions and Major Use Special Permits it has gotten? Before giving any more special permits in CocoWalk, the community needs to know if they have kept the promises they made back in 1991 to the community and to the Commission. Back in 1991, when CocoWalk was opening up, it was discovered that instead of having 490-something spaces in the parking garage, they actually had 530-something. They actually -- on their plans, without City approval, they converted over 33,000 square feet of retail to restaurant, which required many extra parking spaces. They met with the community at length. There was an agreement. Barbara Lange just passed out to you a sheet of paper, `B. " There was actually a variance for 191 off -site -- Barbara? Barbara Lange: I gave it to March. Mr. McMaster: Oh. Commissioner Sarnoff Oh, I'm sorry. Mr. McMaster: Oh, sorry. I'm sorry. We're not being efficient. Chair Sanchez: He doesn't pass anything -- Mr. McMaster: She relies on everyone. Okay. Variance for 191 spaces. It's "B" on that piece of paper. It could be reduced to 111 by Class II Permit. That allowed them to convert 33,000 square feet of retail to restaurant. Then there was the Major Use Special Permit followed "C" talks about security. They were supposed to, I think, have off -site parking at the Coconut Grove Bank. The question is do they. They're required to have full-time security at the off -site lot, required to have security walking the street between the lots. Someone may -- and staff may say, well, they've got excess parking at CocoWalk. As ofMay 2007, CocoWalk was leasing 13 spaces, I think, for Cheesecake Factory, and 15 for Coyote Ugly. That was from the parking authority and the parking trust fund The issue may come up, or maybe the CocoWalk addition, CocoWalkll, has the spaces. Well, I have the folio numbers, the printout from Dade County. The second -- the addition to CocoWalk is a completely separate, free-standing structure. They applied for a special exception to have shared parking, so they're two totally separate structures. So we would ask the Commission today to determine is there enough parking in CocoWalk City ofMiami Page 177 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 today? Are they adhering to the variance, to the Major Use Special Permit? You know, these are important questions before we give them any more special permits. Thank you. Chair Sanchez: All right. Well, I think that if you put -- you put the questions in the record. Maybe we can get someone through the Commission -- through your district Commissioner, to respond to that. Which is, is there enough parking spaces in CocoWalk, and do they meet the requirements as to the parking, based on what you put into the record? Commissioner Sarnoff Who's the owner of this license? Is it CocoWalk or is it you? Mr. Terminello: Club Management, the -- andl askyou to just look at the resolution. That'll resolve a lot of the questions that are kicking around, the resolution passed by the Zoning Board. The applicant is Club Management, d/b/a Visions [sic] Apple Martini. CocoWalk is simply our landlord in this case. Commissioner Sarnoff What is CocoWalk's connection to the license? Mr. Terminello: To your special exception? Commissioner Sarnoff Yeah. Mr. Terminello: None. Commissioner Sarnoff None? Mr. Terminello: They have to give their approval to the public hearing process, but they're not the applicant; they're not the permitee. They have nothing to do with our application. Andl would askyou to look at the resolution for the standards, for the special exceptions that are delineated in the resolution very clearly. And -- well, I'll put -- when it's my turn. Chair Sanchez: All right. Barbara. Barbara Lange: Do you want me to say my address again? Okay. When this came up, I started looking at the exceptions to the alcohol distance requirements in the City of Miami ordinance and what I found was -- and Jim's passing that out -- is that -- Chair Sanchez: Barbara, couldl interrupt you for a minute? Ms. Lange: Yes, certainly. Chair Sanchez: I have come to realize that the attorney has not spoken yet, before I opened it up to the public. Ms. Lange: But could l just say one thing? I'm going to a Heat game, and my husband's going to be mad as heck ifI don't get -- Chair Sanchez: Go ahead. Just say what you have to say, but I forgot -- he's got to speak, or else, you know -- Ms. Lange: And you know what? This man talks forever. He just can't -- Chair Sanchez: Maybe he'll bring the Heat some luck . Ms. Lange: Well, not tonight, not tonight. Please. Just -- (UNINTET,TIGIBT,F) City ofMiami Page 178 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Go ahead, go ahead, go ahead. Ms. Lange: Okay. I'm going to be quick. You know I'm quick. Okay. Now in this, I highlighted what it says, and CocoWalk is a retail specialty center. And down at the bottom of the page, it says "shall not exceed one such establishment, 20,000 square feet," so forth, but "no event shall the establishment exempt from these distance requirements (UNINTELLIGIBLE) offive establishments -- Chair Sanchez: Establishments. Ms. Lange: -- within retail specialty center," and it also provides full-time security for each 100 seats. I'm wondering if they supply that kind of full-time -- CocoWalk supplies that kind of security. And also, it says five establishments with alcohol. Well, I went over to CocoWalk andl looked at how many establishments. I'm going to name them. Apple Martini, Bistro, TuTu Tango, Cheesecake Factory, Fat Tuesdays [sic], Hooters, Los Ranchos Steakhouse, Vision Nightclub, and the soon -to -become Chili's. That's nine places, not five. So I hope you deny this, and I'm wondering if CocoWalk is in compliance with the number of liquor establishes [sic] it has. And number -- right. Chair Sanchez: All right. Thank -- Commissioner Sarnoff Well, you know, let me just say this, 'cause I would like this tape to be reviewed by Code Enforcement and through the City Attorney, and if there's some action that needs to be taken on CocoWalk, then take your action. If what is said here is correct, then this City needs to wake up and see what's out there. If they're wrong, so be it. Chair Sanchez: All right. Commissioner Sarnoff Mr. Interim City Manager up there. Ms. Lange: I'm just going to say one more thing. Mr. Toledo: I will do so. Ms. Lange: We had some relatives in from out of town. We put them in at the Sonesta Hotel. And they heard noise and said, please, don't ever put me there again, and they were on the side facing CocoWalk. So -- andl don't think we're here to make this gentleman rich over here, at the expense of the community, and I hope that you deny his wanting -- his granting -- granting him a 5 a.m. bar. Thank you. Chair Sanchez: Thank you. Okay. Counsel -- Mr. Terminello: Yeah. Chair Sanchez: -- I do apologize. We have to have a process. I thought he had spoken already, but you had not. Let me give you ample opportunity to address this Commission and address any issue that -- I think it gives you an opportunity now to address the issues that have been proffered by the residents. Mr. Terminello: Well, I think, as the appellee, I have that right. But a couple of things need to be clarified here because we're hearing a lot of things and they're just not accurate. For example, the handout on the exceptions to the distance requirements -- andl hate to take my time up in dealing with this, but I think we need to clarify it. The exceptions -- the cap offive that Mrs. Lange is referring to is from alcoholic beverage establishments that have distance requirements. All of the places that she rattled on about, the ones that are bona fide restaurants, City ofMiami Page 179 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 don't have distance separation limitations to begin with, therefore, they're not any of the five that are included in the cap that the Commission gave to CocoWalk and to Mayfair at the inceptions of the specialty center, so that's just a nonissue. There are -- just for the -- just so -- to clam it, there are five alcoholic beverage licenses that are permitted in both those specialty retail centers that are an abrogation of the distance limitation requirements. But those five only apply to places that would have distance requirements to begin with. The bona fide restaurants -- and you can confirm whatever I tell you with staff -- but the -- for example, the restaurant, the Los Ranchos, they would not be subject for distance requirements to begin with. So Mrs. Lange, in her recitation of all of those places, making -- wanting us to think that -- and I'm not here representing CocoWalk, but they're not in violation. There are not five, quote, "alcoholic beverage premises" in CocoWalk -- or more than five. There may be five, but there are not more than five that violate this ordinance. Number one. Number two, there was a lot of talk about the safe -- the criteria and the standards for the granting of the special exception. I would urge you to look at the resolution that was passed by the Zoning Board. In the resolution, it delineates those standards and the fact that the Zoning Board found that the applicant met those standards. And Madam City Attorney was 100 percent on point when she explained to you that a special exception is a somewhat unique item. It is not a variance. It is a permitted use. And when you abrogate from that permitted use, for example, to extend the hours to 5 a.m., the special exception must be granted, unless there is a -- unless there are no conditions upon which the special -- that are going to suffice to -- for your concerns. And this is very important. The burden is on the -- initially, is on the applicant to say we want the special exception, and then the burden switches to the opposition to prove that there are no conditions that you can impose that would permit the special exception to be issued. The Zoning Board heard all of this, and that is the reason why the Zoning Board voted in favor of this application, because they found, on the testimony that was before them, that the applicant met that criteria. That vote is translated into an ordin -- a resolution in which they find that the criteria was met. The -- they imposed conditions. Look at the conditions attached to the resolution. They said, you know, we can impose conditions. We have an issue with crime, so we're going to deal with that, and they imposed conditions. The fact of the matter is is that the standards were met. The Zoning Board voted. They listened to all of the evidence. And the last remaining item that the appellant brought up was the lack of evidence in the record regarding that six -week period of time in which Visions [sic] was not selling alcoholic beverages but was still open and the alleged decrease in crime. Well, we heard Officer Braga from the prior item say that he doesn't know what the reason for that was, and historically, during that period of time U ofM (University of Miami) goes home, there is a dramatic decrease in activity in Coconut Grove, which just happens to coincide with that same period of time. You will hear no evidence, none whatsoever, that the fact that they stopped serving alcohol but were allowed to remain open for that six -week period of time, de -- contributed to any decrease in any purported crime attached on the nightclub. These were all items that I thought needed to be addressed and clamed for you 'cause I know it was a little confusing. We do object to going forth with the short board, but of course, that's your prerogative. Andl do think that this is an item that should be heard by the entire board. That being said, we've heard the appellant. She's delineated a couple of reasons. One of them was the failure to meet the standards. That's her opinion. The Zoning Board saw it differently. The Zoning Board listened to the evidence. Her other -- Commissioner Sarnoff Aren't we here on a de novo review? Mr. Terminello: I'm sorry? Commissioner Sarnoff Madam City Attorney, aren't we here on a de novo review? Ms. Chiaro: Yes, you are. Commissioner Sarnoff So I don't care what the Zoning Board said, right? City ofMiami Page 180 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Chiaro: That is one of the elements for you to consider when you review the req -- this request. Commissioner Sarnoff But it's a de novo review. I'm taking evidence -- Ms. Chiaro: Yes, it is. Commissioner Sarnoff -- as they speak. Okay. Mr. Terminello: It is. It is de novo. And for that reason, I have to go into a little bit below. The staff recommended approval of the application below, which, as I'm sure you're aware, is substantial and competent evidence in the record. That is something you need to consider. I also note for the record that staff is recommending the denial of this appeal, and for the same reason, because I assume there's no analysis, but they recommended it below; the Zoning Board listened to the evidence, they put the conditions on. We abide by those conditions; we agreed to them, as a matter offact, and here we are today. The -- your -- although it's de novo, and I -- you cannot ignore the fact that your competent staff on two occasions involving this application, has seen in favor of the applicant. First, below, when they recommended that the special exception be granted, and now today, when they recommending that the appeal be denied. But since it is de novo, and there's a few -- just a few minor points, though, I want to point out. You heard Mrs. -- the appellant complain about the noise. Okay. I beg you. You have the transcript. We have the -- you have the record. There is a noise study in the record that was uncontraverted [sic]. As a matter offact, the noise analyst was here. The empirical data in the record shows conclusively that from any spot outside of CocoWalk you want to pick, the noise that people hear from CocoWalk could not have come from Visions [sic]. And point out to you that at the time that this traffic -- that this sound study was taken, Coyote Ugly was open with outdoor speakers. We have none, okay? Our doors are closed. We had no outdoor speakers. Fat Tuesdays [sic] and other venues, inside -- and I'm not here to jump on them, but the evidence in the record below -- and Commissioner Sarnoffs correct, it is de novo, but you can look at record below regarding the sworn testimony of the arrest of employees of other nightclubs for violation of the noise ordinance. The evidence below also shows not one Code violation for loud music or any other Code violation for that matter, of any nature whatsoever, issued to this premises for three years that this owner operated that premises. So I would suggest to you that, although there is noise in CocoWalk -- there's no question that there's noise in CocoWalk -- and there was evidence in the hearing below from the Sonesta, for example. What we're not -- what we have to understand is that next door to the Sonesta is Flavour, and it has open tables and outdoor seating. Does the noise come -- you think that if you're next to the Sonesta, you're operating a nightclub with outdoor seating, you think maybe the noise that they hear in Sonesta comes from next door? Because the only evidence in the record, the sound studies shows conclusively, without question, that the noise wasn't coming to Visions [sic]. When the Visions' [sic] doors are closed, you can't hear the noise, and we had no outdoor speakers. We're not here to discuss the arrest of the employees of the other nightclubs for violation of the noise ordinance. We also had, interesting enough, since this is de novo, sworn testimony in the record below from City of Miami off -duty police officer who was working there who said the entire time that he was working off duty, the owner was very cooperative and there had not been one noise complaint lodged against this venue. So I think we can dispose of the issue of noise, if that's the problem. If -- there was some evidence about crime in the area. We addressed that by the conditions attached to the special exception, which is exactly what you're supposed to do below is come up with conditions that are going to address that issue. I can go on and on. You know, I can talk about the fact that there was a six -- I don't know if the appellee is -- if the appellant is done with their case. You know, our office is ready to challenge and put in the evidence in the record of any -- other than what's already in the record below, which is part of the record here, okay, which I've alluded to, we're ready to answer any other issues that you may have. I urge you to uphold -- and it's -- you know, this hearing, in many respects, since it is a short board to begin with, might be better -- might become a moot point, of course, if you pass the resolution on City ofMiami Page 181 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 second reading, that you're contemplating on first, but in the hopes that that resolution is going to come out in a somewhat modified version, we have to do this. This has been a supper club, and that's the issue that I want to be sure is not lost. When -- and l forget if it was Ms. Lange or the appellant, but they had -- they were all -- they had all of the definitions jumbled, okay. This is a supper club, okay. This is not -- Commissioner Sarnoff Visions [sic] is a supper club? Mr. Terminello: This is a supper club, okay. Look at the resolution. Look what was applied for and what was approved. This is not a nightclub. A supper club has a food requirement, okay. It doesn't have a 60 percent food requirement. That's a restaurant. But it has a food requirement. It doesn't have the dance floor requirement that a nightclub -- as a matter of fact, I'll go so far to say that in many, many mango seasons of doing this, I don't ever recall the Zoning Board being asked for or granting a nightclub special exception. This is a supper club special exception. And as a supper club, it doesn't need to meet the 60 percent requirement. All this was getting jumbled all up. It's real simple. The standards are in the resolution; the standards were met, okay. The noise studies showed conclusively that there's no noise coming from CocoWalk that you can hear outside of CocoWalk. That's a fact. It's uncontraverted [sic] and a simple fact. This venue is not the issue that residents had regarding, at least, noise. Did it contribute? Does it contribute to some of the crime? We -- in the slight possibility that that's true, we agree -- look at the resolution -- the conditions of the resolution that were voted upon and adopted by the Zoning Board. We agreed to the extra police officers. Chair Sanchez: All right. And in conclusion, counsel? Mr. Terminello: In conclusion, I urge you to follow the law. You sit here not -- and you have to separate -- and I'm sure Commissioner Sarnoff knows this -- the legislative hat in being against the 5 a.m.'s with the quasi judicial hat that you sit on next. The question is, have you heard evidence in this record from the appellant that leads you to believe that you should overturn the Zoning Hearings Board? I don't think so. Chair Sanchez: Thank you. Mr. Terminello: Thank you. Chair Sanchez: All right. Anyone from the public that has not spoken on the item? Commissioner Sarnoff Can we incorporate the previous testimony? Chair Sanchez: We could, but I mean, I don't want to deny anybody the due process to address this Commission. I mean, we have two more speakers? Two more speakers and we're done? Okay. Come on. Go ahead. Alyn Pruett: Alyn Pruett, 2901 South Bayshore Drive. I spoke to the Commission earlier on behalf of Village Council. I won't read all of that again, but just to remind the Commission, the Council's position on the 5 a.m. closings was no additional closings -- 5 a.m. closings should be allowed. No additional -- Chair Sanchez: Additional. Mr. Pruett: -- exceptions -- Chair Sanchez: So the ones -- Mr. Pruett: -- should be allowed. City ofMiami Page 182 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: -- that are there -- Mr. Pruett: Right. Chair Sanchez: -- could stay? Mr. Pruett: So that comment pertains to this application. The second comment, I'm going to put on my hat as a resident. I live a block away from CocoWalk, andl think that the fact that the extended hours are granted by special exception was put that way for a reason; wasn't granted by right. You know, we all have our own interpretations of why that special exception is there. I'm not a lawyer, but it was my interpretation in moving to Coconut Grove many years ago, that the Grove was not intended to be a nightclub district. Andl think what you've heard from other speakers, I would agree with, in that granting these continued special exceptions is moving the Grove toward becoming a nightclub district, andl think that's contrary to the intent of the zoning, particularly, the NCD-3 component of the zoning that's already been referred to. One other comment, and this may be a little complicated. But you asked for proof of why this special exception should not be granted It strikes me that we have, I think, five other establishments in the Grove today that were granted special exceptions. I presume they were granted special exceptions with conditions. And today, in spite of the fact that those conditions were all put forward, we still have the problems that the Commissioner has alluded to with crime and so on. That, to me, is evidence that no matter what conditions are put forward here today, they're not going to be effective. We have evidence of that fact before us -- Chair Sanchez: Thank you, sir. Mr. Pruett: -- already. Thank you. Chair Sanchez: All right, ma'am. And that'll be the last speaker. All right. Ladies first. Joyce Landry: Joyce Landry, 3900 Wood Avenue, 20-year resident of Coconut Grove. And I'm not talking about legalities. I'm really here practically as a resident, just to say that I predate CocoWalk in Coconut Grove. I remember the Village the way that it was, not that we're going to go back that far, but I also remember a time before young people were regularly in accidents and killed on the corner of Grand Ave -- I mean, Douglas Road and Main Highway in the wee hours of the morning, usually, 4 -- 3, 4, 5 o'clock in the morning. Also, I had someone recently that came into town just before the holidays, andl said, you're going to love Coconut Grove. You really need to stay at the Sonesta, andl want you to really get a sense of what the Grove is like. And he enlightened me to just how things have changed in that area. And he saidl don't know why you put me there. You know, this is not the charm and what you told me it was going to be. And it was all night, this and that, and people were making noise out there and all of it. So I just say, as a resident, I don't have supper at 5 o' clock in the morning, so a supper club is not something that -- I don't know what they're doing there, but to me, that's not the time I eat supper. So I don't know that we need anymore late night. I don't know it's going to add to what we have. I think actually it would take away from the atmosphere and the environment that we have in Coconut Grove. Andl know it might bring back some residents to come back into Coconut Grove. Right now, all of our residents go elsewhere for our entertainment because we don't want to go near that place. So I'd like to see if we can kind of come back a little bit and start to put some restrictions here to kind of bring back the Grove as we remembered it. Thank you. Chair Sanchez: Thank you. Sir. Commissioner Sarnoff What's your name again? What was your name again? City ofMiami Page 183 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: You're the last speak -- Ma'am. Ms. Landry: Joyce Landry. Thank you. Mr. Terminello: Mr. Rauh works in my office, and he's going to put in some evidentiary items into the record since this is de novo. But I do want to point out this is not about noise from CocoWalk, okay? It is simply not about noise from CocoWalk. This venue had no noise emanating -from it. Period and end of story. That's the empirical data. You can deal with noise from CocoWalk by banning outdoor speakers, by enforcing your noise ordinance. But the noise that these people are complaining about, according to the only evidence in the record, and it was comprehensive, was that it wasn't coming from here. I just -- Chair Sanchez: All right. I think -- Mr. Terminello: -- I needed to reinforce that. Chair Sanchez: I think you've established your record, counsel. All right. Sir, how long are you going to need? James Rauh: Probably just a few minutes, two or three minutes. Chair Sanchez: All right. Mr. Rauh: Good evening. Mr. Chairman, honorable Commissioners. James Rauh, from Terminello & Terminello, PA, here on behalf of Club Management Investment Group, T,T C (Limited Liability Company). I want to incorporate into the record our arguments from the Zoning Board hearing below, the handouts, the evidence and other materials. I supplied a transcript of the lower hearing to the Clerk, and also, our handouts that were given to the board members, the staff analysis below, and the actual resolution that was passed. You may want to defer this item, since you haven't had a chance to review all these things. Or maybe you have, but we're certainly giving it to you now. Also -- so those things are a part of our presentation today. Also, I'll just comment that, in relation to the record evidence, as a matter of law, generalized statements from residents, for example, are not the competence substantial evidence you need to -- in order to uphold an appeal or deny an application once the applicant has shown they met the Code criteria. And two that, as a matter of law, in general, some -- there was some mention of this before, past -- allegations of past violations are not a substantial basis to deny -- Commissioner Sarnoff Equally -- Mr. Rauh: -- applications. Commissioner Sarnoff -- your statements would have no evidentiary basis, correct? Mr. Rauh: Well, I'm talking about the record evidence. Commissioner Sarnoff No. I understand, but you getting up there and saying there's no this, there's no that, that's not record evidence. Mr. Rauh: No. What did was tell you as a matter of law. Commissioner Sarnoff No, no, no. When counsel gets up there and makes statements which appear to be factual, they have no evidentiary basis upon any -- which any Commissioner can listen. Is that correct? Mr. Rauh: As long as what I'm saying -- I didn't make any factual statements. City ofMiami Page 184 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff No, no, no. Mr. Terminello: The evidence about the Code violations and things along that nature are all in the record of the transcript below, so you can rely on that by looking at the transcript below. Commissioner Sarnoff Counsel, your statement as to facts -- you're not here as a fact witness, correct? Mr. Terminello: Of course not. Commissioner Sarnoff I just want to make sure that we're on even ground. So anything you say factually has no evidentiary base. Mr. Terminello: No, but I can point you to the record below and ask you to -- Commissioner Sarnoff Not denying that. Mr. Terminello: Okay. Commissioner Sarnoff What I'm saying is when you get up here and make a categorical statement, it has no evidentiary value. It's merely argument. Mr. Rauh: I understand what he's saying. No, I'm not testifying. Okay. Chair Sanchez: All right. Mr. Rauh: But -- Chair Sanchez: Let's go. Mr. Rauh: And that's all we have. Chair Sanchez: All right. Thank you. Public hearing is closed, coming back to the Commission. Commissioner Sarnoff. Commissioner Sarnoff Yes. Chair Sanchez: PZ.17. Commissioner Sarnoff Based upon the evidence that I've heard here today -- Unidentified Speaker: (UNINTET,T IGIBT ,F) client to be heard. Chair Sanchez: All right. Commissioner, could we allow --? Shawn Shahnazi: IfI may. Chair Sanchez: Sir, two minutes? Mr. Shahnazi: Yeah, that'll be fine. Chair Sanchez: Two minutes. Mr. Shahnazi: I think a few things are getting lost in all this. I bought an existing business back City ofMiami Page 185 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 in 2004 that's already been open for 15 years. When I bought it, it was open 'til 5 a.m. I put this application in in 2004. It was lost by the City twice, and Department of Zoning can verify that. I should have been to the Zoning Board two years ago. I have already spent over $10,000 in fee [sic]. Ms. Komis appeal is with my money. It's the money that I put in for my appeal that was used that I think the law should be changed to be using my own money. All I want to say is for the last three years that owned this business, I have not had one single violation. Not one. Not from Code Enforcement, not for overcapacity, not for noise, not a single violation by Code Enforcement officer, Police Department, or anything like that. When we got our exception finally in June and we were granted that exception, I volunteered for those additional commitments. No other club has those commitments. All the other four people that had it -- which is now three, since Coyote Ugly is out of business -- they don't have the extra commitment. I volunteered that, again, trying to be the good neighbor, trying to be a good businessman. I said, you know what, if your comments are regarding safety in the street, I will pay for the additional officer that's needed to patrol the street. And let me say, from June --from July, I apologize, it has not been one single incident reported in that street since I did pay for that out of our pocket at $380 a week. I volunteered not to put 18 and over in there, which is the law for 18 person to be in the club. I volunteered that. You know what, pass 2 o'clock in the morning, we're not going to allow anybody under 21 to come into the club. That was not required by any other clubs. All the other clubs do it anyway. We volunteered that because I wanted to do the extra measure in order to stay in business. You know, I -- you know, there are -- right now, as a businessperson, we've been in negotiation with Alonzo Mourning in order to make it into a sports bar. You know, I have -- I am literally -- the deal is done, the money -- financial is done, and what this has done, literally -- forget that it's costing me 25, 30 percent of my sale and will run me out of business practically, it would -- honestly, everything I'm spending in order to bring something, which I think will be good for Coconut Grove -- it's a sports bar style. It will be a whole different venue that Coconut Grove hasn't had since Dan Marino was there in 1992 when I was there as a bar tender. This will bring more customers to Coconut Grove. I don't want to be punished for everybody else's mistake. Chair Sanchez: Thank you. Mr. Shahnazi: You know, ifI never had a noise violation, ifI never had a Code enforcement violation -- you know, I know people could say, well, you should have been given a ticket. With all due respect, three years is adequate time for the City to came [sic] in. You know, when the City came and told me one single time, listen, we lost your application, you need to reapply again and pay another $4, 700, the following night, I was closed Chair Sanchez: I think you've made that point. Mr. Shahnazi: Thank you. Chair Sanchez: Thank you. All right. The public hearing is closed coming back to the Commission. Commissioner Sarnoff, on -- Commissioner Sarnoff Mr. Chairman -- Chair Sanchez: -- PZ. 17 -- PZ. 16. Commissioner Sarnoff -- I think based upon the credible evidence that's been provided herein, there are no conditions upon which this application should be approved. And what mean by that is that the zone -- that the appeal should be sustained and the license should be denied. And the reason for that is very clear. There has been no refutation of any facts as to the calls for service or as for the plaintiff -- or for the appellee's own statements as to the number of stabbings, incidents that they have had in their bar establishment, and that is with police personnel. Equally, there are 22 calls for service in a one-year period that nobody has refuted City ofMiami Page 186 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 with regard to this particular venue. There are 425 calls for service between the hours of 3 a.m. and 5 a.m., and most of these calls for service all center around CocoWalk. There are no conditions upon which this Commission can impose that will preserve the sanctity and the good moral fabric of Coconut Grove. There's nothing that we can do to help the disbursement of people coming out of bars at 5 a.m. in the condition upon which they are in. One police officer, two police officers will not satisfy the disbursement into the neighborhoods of intoxicated people throughout our neighborhoods. This is about quality of life. This Commission has got to make a decision on quality of life. Coconut Grove has a choice. Coconut Grove can become the University ofMiami or anyone else's late -night spot, in which case, we will have a great residential community and we will have a horrible business community. Coconut Grove is at a crossroads. Coconut Grove needs to grow up. It needs to start servicing the wealthy people -- and there are a lot of wealthy people in Coconut Grove who would love to have the proper entertainment, the proper food facilities in Coconut Grove -- or it can continue to do what it does, force most of its residents to go to Coral Gables or other parts ofMiami for its entertainment and consumption. So this is the crossroads for Coconut Grove. Andl am telling you, based on what the Village Council is saying and all, I think, Grovites, it's time for this type of action to stop. I implore upon my City Commissioners to uphold the District 2 Commissioner in sustaining this appeal and denying this permit. Chair Sanchez: All right. There's been a motion to deny the appeal. No, to appro -- I'm sorry. Your motion? Commissioner Sarnoff It's to sustain the appeal -- Chair Sanchez: Sustain the appeal, okay. Commissioner Sarnoff -- and deny the permit. Chair Sanchez: All right. Is there a second? I would second it, ifI have to pass the gavel. You second it? All right. On that, Commissioner, there's one thing you said that I want to make sure that nobody misinterprets you. Coconut Grove doesn't only service the wealthy. It serves everyone in our community. I just think there was a misunderstanding that people may not perceive that. Coconut Grove has always been open to everyone in our community. I think the issue here, when it comes down to it, is neighborhoods deserve peace and quiet, and they certainly deserve a better quality of life, andl think that that's what the neighbors are pushing for. So any other comments on that? Commissioner Sarnoff No. Andl apologize for suggesting Coconut Grove is only made up of wealthy people. It's made up of a great mix of people. Chair Sanchez: All right. No further discussion on that. It's a resolution. All in favor, say "aye. The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay. " Motion carries. Ms. Chiaro: And may I clarify the record that you have granted the appeal, reversing the decision of the Zoning Board, thereby denying the special exception. Chair Sanchez: Absolutely. Commissioner Sarnoff Equally known as sustaining. PZ.17 07-01386ha RESOLUTION City ofMiami Page 187 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 A RESOLUTION OF THE MIAMI CITY COMMISSION DENYING OR GRANTING THE APPEAL FILED BY ANTHONY RUBINO, ON BEHALF OF SERP & SERP INVESTMENTS ("APPELLANT") AND AFFIRMING OR REVERSING THE DECISION OF THE HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD ("HEPB"), WHICH DENIED THE APPEAL OF A DECISION OF THE DEPARTMENT OF PUBLIC WORKS CONCERNING THE DENIAL OF AN APPLICATION FOR A TREE REMOVAL PERMIT FOR THE PROPERTY LOCATED AT APPROXIMATELY 2840 SHIPPING AVENUE. 07-01386ha Appeal Update.pdf 07-01386ha CC Appeal Letter.pdf 07-01386ha Aerial Map.pdf 07-01386ha HEPB Reso.pdf 07-01386ha HEPB Submittal Photo.pdf 07-01386ha HEPB Fact Sheet.pdf 07-01386ha Public Works Letter.pdf 07-01386ha HEPB Appeal & Supporting Materials.pdf 07-01386ha Legislation (Version 2).pdf 07-01386ha Legislation (Version 3).pdf 07-01386ha Fact Sheet.pdf 07-01386ha-Submittal-Tree Permit 2840-2842 Shipping Avenue.pdf 07-01386ha-Submittal-Photographs. pdf 07-01386ha-Submittal-Tree Watch.pdf LOCATION: Approximately 2840 Shipping Avenue [Commissioner Marc David Sarnoff - District 2] APPELLANT(S): Anthony Rubino, Managing Member, on behalf of Serp & Serp Investments FINDINGS: PLANNING DEPARTMENT: Recommended approval of the Historic and Environmental Preservation Board decision and approval of the decision of the Department of Public Works. HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD: Denied the appeal and upheld the decision of the Department of Public Works, which denied an application for Tree Removal Permit on November 6, 2007 by a vote of 7-0. PURPOSE: The approval of this appeal will allow the removal of an oak tree located in the middle of the above property. Motion by Commissioner Sarnoff, seconded by Commissioner Regalado, that this matter be ADOPTED WITH MODIFICATIONS PASSED by the following vote. Votes: Ayes: 2 - Commissioner Sarnoff and Regalado Noes: 1 - Commissioner Sanchez Absent: 2 - Commissioner Gonzalez and Spence -Jones R-08-0054 Chair Sanchez: All right. PZ.17. Moving on to the oak trees. We go from liquor to oak trees. Isn't this a great City? All right. PZ.17. Are we ready? All right. Let's go, let's go, let's go. All right. PZ.17. All right. How long is this going to take for us to get -- You guys ready? City ofMiami Page 188 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Anthony Rubino: We're ready. Chair Sanchez: You're ready? All right. This is -- it's an appeal. You are appealing it? Mr. Rubino: I am. Chair Sanchez: So you could start. Mr. Rubino: Oh, do I? Chair Sanchez: State your name and address. Yeah, you could start. Are we ready? All right. Just out of curiosity, how many will be speaking on this issue? Okay. Have every -- has everyone been sworn in? All right. Please stand up and raise your right hand. Priscilla A. Thompson (City Clerk): Chair, ifI might? Chair Sanchez: You're going to be sworn in. Ms. Thompson: Can you please also remind the individuals, if they are speaking, they do need to fill out a speaker sheet? Chair Sanchez: Yes. If you will be addressing this Commission, you need to fill out a form -- Ms. Thompson: As well -- Chair Sanchez: -- please, okay? All right. Madam Clerk. Ms. Thompson: As well as a reminder of the disclosure statement. Chair Sanchez: Exactly, where you need to state if you're being compensated for being here. Ms. Thompson: Please raise your right hand. The City Clerk administered oath required under City Code Section 62-1 to those persons giving testimony on zoning issues. Ms. Thompson: Thank you. Chair Sanchez: All right. Mr. Rubino: May I proceed, Chairman Sanchez? Chair Sanchez: Yes, sir. Mr. Rubino: My name is Anthony Rubino. My address is 3185 Lam Court, Coconut Grove, Florida. The property in question is not that location. It is a property that I've developed at 2840 Shipping Avenue. I don't know -- I know that I filed a packet. I don't know if the Commissioners have had an opportunity to read my reasons for appeal prior to me standing up here. I see Commissioner Sarnoff has -- just to go through it, I'll start by saying I'm a Grove resident. I was before college; I went away to college, andl came back, and I've been living in the Grove ever since I got back from law school in, god, 1997. I love the Grove, I love the trees. I love them just as much as anybody else. That's why I live here. I live here for the canopy, for the beauty, for the greenery. Today, I am asking you, though, to allow us to remove an oak tree on the swale in the front of our property at 2840 Shipping Avenue. A brief history as to what's City ofMiami Page 189 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 transpired thus far. We initially began to -- as we finished the product -- the project, we initially began to excavate in anticipation of pouring a sidewalk at the location, as we were required to do so by the Public Works Department. As we excavated and began our digging, we realized that we had a problem in the sense that this oak tree in question, the root -ball was much larger than we had possibly anticipated, and in fact, as we took the dirt out, we realized that the tree was set much higher. The root -ball was much higher than we had possibly thought. Seeing this and wishing to finish the project in a manner that we thought was best for the community, meaning we would have a full sidewalk, we would have -- the project would be gated for safety and it would have two separate driveways leading to the garages, we filed for a tree removal permit. Upon doing so, we were put in contact with Jim McMaster, initially from the Treeman Trust. We spoke with Mr. McMaster, and he had suggested that we speak with the Public Works Department and see if there was a way around removing the tree. He -- additionally, he had asked us to consult with an arborist. He didn't suggest an arborist, but he asked us to get an opinion from an arborist. We, in fact, did schedule a meeting with Public Works and we went down there, and Public Works couldn't really find a viable solution around it and told us to try to work it out with the Treeman Trust. We then proceeded to hire an arborist, and the arborist that we chose is by the name of Lisa Hammer. I know that Commissioner Sarnoffs familiar with her, of course, because she's a Grove person and she's around the Grove. The Treeman Trust is familiar with her, and Tree Watch because they've used her in the past on numerous occasions. When we met with her, she -- one thing about Lisa Hammer, which I'll say, as I would say, she's the premiere arborist in all of South Florida. She's a member of the International Society of Arboriculture. She's also a member of the American Society of Consulting Arborists. And not only that, she has the highest distinction of that association, being a registered consulting arborists. IfI could, I'd like to pass out her credentials to the Commission. Chair Sanchez: Please present them to the City Clerk and she will distribute it to the Commissioners. Mr. Rubino: What I have passed forward to you all for your review is her CV (Curriculum Vitae) and also one of the printed pages from the American Society ConsultingArborists, as to what it takes and what the requirement to be a registered consulting arborist is. Ms. Hammer has worked in the arboriculture field for 25 years and has extensive experience in trees, plants and everything associated with being an arborist. Her -- in addition to that, her two visits to the property -- one was September 17 and one was October 1 -- she made a report as to her findings when she visited the property. I don't know if the Commission has had an opportunity to read those -- I see Commissioner Sarnoff has. I know Commissioner Sarnoffs a little more familiar with this, obviously, than the rest of the Commission would be. Commissioner Sarnoff It's two blocks from my house. Mr. Rubino: That's what I mean. 'Cause it's closely in proximity to his location, and we've dealt with the Commissioner's office on this issue. If you'd like -- I don't know if you'd like me to give you a second just to read her opinions. Chair Sanchez: No, no, no. Go ahead. Mr. Rubino: Go ahead? Okay. After consulting with Ms. Hammer, we then -- and the Public Works Department -- let me add that when we met with Public Works, we invited the Treeman Trust to attend and they couldn't, and that was unfortunate. They had another obligation and they could not be there. What we did do was we did take the time to have a second meeting onsite with Ms. Hammer and Mr. McMaster, where Ms. Hammer explained to Mr. McMaster her concern about the tree and her recommendations. That, you'll find in her October 1 report where she put that in writing. My concern is we have a townhouse here that's been built. We were permitted from the City ofMiami to build it and now we have an issue. And our issue is ingress and egress to the property and the garage and security and sidewalk and having a tree City ofMiami Page 190 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 there -- having a tree in front of the property that is not in the best of condition. And I'm going to provide you some photos of the tree as well. I've provided some photos of the tree. There are two distinct time periods in the photos that I'd ask the Commission to notice. The first two photos in the -- I guess they would be -- Ms. Thompson: I'm sorry. You've asked that they be in the same order? I'm just numbering from -- Mr. Rubino: That's fine. You labeled them just 1, 2, 3? Ms. Thompson: Yes, sir. Mr. Rubino: Number 1 and 2 would be taken prior to our commencement of any construction on the property. They were taken probably a month after the tenant -- we had a tenant living in the property as a renter while we received the permit to build from the City. As you can -- Commissioner Sarnoff That's the '04, right? Mr. Rubino: I wrote that as '04, Commissioner Sarnoff, and Mr. McMaster actually pointed out that am incorrect, and he was right at the HEP (Historic and Environmental Preservation) Board hearing. It is December of '05 is when the pictures were taken, andl apologize for that oversight. My brother's a computer genius, and he's the one who helped me figure out when they were taken. In fact, though, when I went back and cross-referenced my files, I see that our demolition permit was pulled and done in January -- late January of '06, and you can see where we've disconnected the sewer in that picture -- the City sewer. So it's some time -- either late December -- I think it's late December, at the very latest, it would be January of '06. With that said, it's prior to me utilizing that property in any way, except having a renter there from when I bought it initially. The rest of the photos show the tree as of Monday. As the Commission will see, this tree is not in good condition. It wasn't in good condition when I bought the property, and Ms. Hammer's report will tell you that the tree is not in good condition. Ms. Hammer, as you see in her report, recommends removal. She recom -- she thinks it's in the best interest of this community. She thinks it's in the best interest of any future property owner, in the sense that she doesn't want a future property owner to be stuck with the headache of having to deal with a tree removal when this tree ultimately dies. And it's her belief that once a tenant takes up residence at this location, because of the root -ball, there is no way to fashion the driveway around the tree. I know the HEP Board had suggested putting pavers over the tree on sand. If you look at -- there's two pictures of the tree to show how high this root -ball is in relation to the street, and if we put pavers, you wouldn't even be able to pull into the property. If you put sand and then pavers, it would be about a three feet or four feet entrance to the property. My focus here to the Commission is the health of this tree. It's been in bad shape when I bought the property. It's still in bad shape. It has numerous issues outlined by Ms. Hammer. They include sparse crown density, twig dieback, chlorosis and nonvigorous growth. One option that we looked at initially as well was relocating the tree. We would certain -- we'd certainly not have a problem relocating it to another location, but it obviously doesn't make sense if the treess not in good condition. Ms. Hammer will tell you that relocation -- the viability is unlikely if this tree is relocated. She also pointed out that -- the best interest of the community. Andl think that that's why we're here. That's why we're here as a community as a whole, and that's why the Commission looks at these issues. There are times when a removal is in the best interest of the community. Andl know that we have the Treeman Trust that's here and is against it, andl know that Tree Watch is here and they're against the removal. But we would suggest to this Commission that this is a situation where this is in the best interest of the community. With that said, Tree Watch and Treeman Trust, I, as a resident of Coconut Grove, am actually very happy to have them here . I think that they do an excellent job at what they do. I think that they're needed here. I think that there are people, residents -- I think there are developers who have chopped down trees, andl think they've gone about it the wrong way, andl think that they need City ofMiami Page 191 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 to be punished and they need to pay and they need to -- and these things need to be brought to light. With that said, I think that in this issue, that the Treeman Trust and Tree Watch are lacking the proper discretion to look at this matter objectively to this one particular tree. If you look -- if you -- everyone knows what an oak tree looks like, and it doesn't look like that tree in the picture. In addition, they asked me to do -- they asked me to see Public Works; I did it. They asked me to go to the -- to go hire an arborist; I went and got an opinion from the best arborist in South Florida, one that they relied on. I didn't go down to some -- up to Broward or somewhere to get some obscure person that they'd never heard of. I didn't -- I went and got someone to give an unbiased and fair report on this tree. With that said, I think the evidence that you have is really what I rely on. I could tell you what I think, but really, what I think isn't relevant because I'm not an arborist. I did show you the pictures, which gives you an idea because you don't have the opportunity to go out there, except for Commissioner Sarnoff, and would just ask you to rely on the arborist's opinion. And with that said, any questions that you should have, Ms. Hammer is here and is happy to address any concerns and questions you'd have at this time. Chair Sanchez: All right. Mr. Rubino: I don't know if you'd like me to bring her up now or later. Chair Sanchez: Yeah. You could bring her up now. I mean, you -- this is your opportunity for you to state your case in front of this Commission. Mr. Rubino: These are -- this is merely -- Chair Sanchez: This quasi judicial. Mr. Rubino: -- for your edification -- Chair Sanchez: Yes. Mr. Rubino: -- based on her -- Chair Sanchez: And we do have her report. Yes. Lisa Hammer: Good evening. My name is Lisa Hammer. I'm at 2850 Coconut Avenue, in Coconut Grove. I've just been informed by the Clerk that because I'm not registered as a lobbyist, I won't be able to speak. I would urge you to reconsider this. I'm not a lobbyist. I'm not an advocate. I'm an expert with an objective opinion, and I'm reporting on facts. Chair Sanchez: Madam Clerk. Ms. Thompson: I will defer to the City Attorney, please. Chair Sanchez: City Attorney. She's here as an expert witness. Maria J. Chiaro (Assistant City Attorney): Under our City Code, anyone who is compensated to be paid to support an application is defined as a lobbyist. You may ask questions of an expert and that expert does not have to be registered as a lobbyist, if only answering questions. Chair Sanchez: All right. It's -- Ms. Hammer: Thank you. I'd be glad to answer questions. Chair Sanchez: All right. City ofMiami Page 192 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Let me ask a couple questions. Chair Sanchez: That's only fair. Yeah. I got -- Commissioner Sarnoff Yeah. Chair Sanchez: -- a couple questions. Commissioner Sarnoff In the present condition of this tree, what do you see its survival rate? Chair Sanchez: Right. Ms. Hammer: I think it's in a state of decline, and it's most likely just going to continue to decline, particularly, if it has added stresses such as driveways, and traffic over it, and excavation for sidewalks and fences and that sort of thing. Commissioner Sarnoff Now ifI led you around the Grove in that neighborhood andl took you to other oak trees, would they be in that same condition? Ms. Hammer: There may be some, but there are many that are not. And in fact, in the two properties on either side, it's clear -- if you stand behind this tree and look at this tree with sun directly to the east behind it, you can very clearly see the difference in the condition. Commissioner Sarnoff So this tree, in relation to other groves [sic], let's say within the central -- center Grove, how would you say it relates in terms of other oak trees? Ms. Hammer: It's in a state of decline. It's not in good condition Commissioner Sarnoff And how would you say the other oak trees in Coconut Grove -- are they in a state of decline? Ms. Hammer: Some are. There certainly are some out there, but there're also some healthy ones. There are some bigger ones. There are certainly some nicer ones. Look next door to this property, on either side, particularly, the property to the east has a very, very large, nice, full canopy oak tree in that property. Commissioner Sarnoff What's the DBH (Diameter at Breast Height) of this tree? Ms. Hammer: Nineteen point five inches. Commissioner Sarnoff And do you have any estimate of height? Chair Sanchez: Thirty-five feet. Ms. Hammer: Thirty to thirty-five feet. Commissioner Sarnoff Okay. Go ahead. Chair Sanchez: Reading your report, you -- your recommendation, if the tree, for whatever reason we decide for it to be removed, the -- to mitigate by installing and, replacing the requirements by the City, which is, if I'm not mistaken, a 19.5-inch diameter tree, then 16 hardwood trees, two inches? Ms. Hammer: I'd have to refer back to my report. I didn't bring it -- City ofMiami Page 193 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: But let me give you -- Ms. Hammer: -- with me. Chair Sanchez: -- here. Let me help you. Ms. Hammer: But if that's what it says, that's what I found in the Code, yes. Chair Sanchez: Yeah. Can you read this into the record just --? This is your report of what your recommendations are if the gentleman were to mitigate on the tree. Ms. Hammer: I'm sorry. I didn't bring the report up since I thought I wasn't going to be allowed to speak. For a 19.5-inch diameter tree, the City requires replacement with 16 hardwood trees, two inches in diameter and 12 feet in height, or 8 hardwood trees, 4 inches in diameter and 16 feet in height, or a contribution to the tree trust fund in the amount of $8, 000. Chair Sanchez: All right. Can I have that back? Mr. Rubino: I don't mean to step on my arborist's toes here, but I think that those numbers are if we were to take the tree without getting a permit. I think -- Ms. Hammer: Please -- Mr. Rubino: -- and Commissioner Sarnoff will be more familiar with the tree ordinance. Ms. Hammer: And please excuse me. The new tree ordinance that came out in June of last year is still not completed or it's not in its final form. It doesn't have the mitigation chart in it, and it's been very confusing to me since June. Chair Sanchez: Understand. Can I have that back, please? Now, basically, your determination as to the condition of the tree, can you state it for the record? Ms. Hammer: Yes. For the record, I believe that the tree is in, as I said in my report, fair at best, condition. It's in a state of decline. It's been damaged by hurricanes and storms, vehicles driving on Shipping Avenue have damaged the limbs that are hanging over Shipping Avenue, and there was one branch more recently broken, which may have occurred during construction. Chair Sanchez: And as an expert, do you see the tree declining in health or getting better? Ms. Hammer: I see the tree declining in health, andl would not expect it to get better, unless it was possibly remedially treated with an aggressive and stringent program. But I think if the driveway went in and the fence went in and the sidewalk went in, it would probably lead to more decline. Chair Sanchez: All right. Basically, oak trees -- and it all different factors as to the stress and conditions that they're at -- their ratio, when you transplant them are what, at best, 50/50? Ms. Hammer: You're talking about survival rates for -- Chair Sanchez: Yes. Ms. Hammer: -- relocation? Chair Sanchez: Survival rate. City ofMiami Page 194 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Hammer: It can be done, but it's certainly not one of the easiest trees to relocate. Their survival rates are questionable, depending on how it's done. And if it's already in a stressed condition, the likelihood of it surviving is much lower. Chair Sanchez: All right. Thank you. Commissioner Sarnoff Let me ask you a question. With proper care, would this tree improve? Ms. Hammer: It might improve, but I don't think that it's ever going to be a good, healthy, strong, viable, structurally sound tree again. Commissioner Sarnoff Okay. Chair Sanchez: Okay. Thank you. Any further questions? If not -- okay. City -- and all those that will be speaking on this item, start walking up. You have a presentation? Mr. Rubino: No. I was just going to move my -- Chair Sanchez: No, no, the young lady. Mr. Rubino: Oh. Chair Sanchez: And you need help with the technical aspect of it? Liliana Dones: Hopefully -- well, I don't know if he's out there. Chair Sanchez: Yeah, he's out there. We'll get some help for you. All right. Kathleen Kauffman (Preservation Officer) Good evening, Mr. Chairman, members of the Commission. Kathleen Kauffman, City ofMiami. This applicant had received proper tree permits to remove trees from the property at the time that they were planning to do the project, before they built the building, and he received those permits and went ahead and built the building. After the building was designed and on the lot, it became apparent that this oak tree was in the way of the driveway into the garage for the two units. This came -- so the tree permit was denied and the applicant appealed it. That's why it came to the Preservation Board. The Preservation Board felt that the tree removal was not necessary; that the fence dividing the driveway in two, if that was not built, then a driveway could be built around the tree to accommodate the two units, and so they voted to uphold the denial of the tree permit. Chair Sanchez: All right. Just as you stated, originally, the Public Works Department gave the permit and later -- Commissioner Sarnoff No, no, no. Ms. Kauffman: No, no. Public -- he got a tree removal permit -- Chair Sanchez: Right. Ms. Kauffman: -- for the trees within the footprint of the proposed building. So he had gotten tree removal permits -- Chair Sanchez: Oh, okay, okay. Ms. Kauffman: -- before this tree was ever in question. City ofMiami Page 195 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: All right. Ms. Kauffman: He had gone through the -- Chair Sanchez: Got it. Ms. Kauffman: -- process and gotten the proper permits, but this tree was not a part of that original -- Chair Sanchez: It was not a part of that. Okay. Thank you very much. You've answered my question. Commissioner Sarnoff Would you stay up there for a second? 'Cause I want to read the tree statute to you. Or I guess it's really called the -- I guess it's our tree removal statute. It says that trees located in the property frontage, and it says, parentheses, within the 15-foot setback, closed parentheses, shall not be considered to be located within the buildable area or yard. Ingress and egress to garages are not considered the buildable area or yard. Trees on the public right-of-way shall not be considered for removal as a result of restriction to or from egress or ingress to the garages or parking site. Provided, however, there is no other reasonable access to and from the structure to the property from the public right-of-way. Now, my question to you is, is there any other reasonable access to or from the structure from the public right-of-way? Ms. Kauffman: Yes, sir. I believe the HEP Board thought that there was. If the fence is not built to divide the driveway in two to make it two completely separate driveways, then they felt that there was enough area to build a driveway around the tree. Commissioner Regalado: Couldl ask a question, Mr. Chairman? Chair Sanchez: Yes. Commissioner Regalado: Can they just move the driveway, change --? I mean, what is the problem? Does the City doesn't allow them to open a new driveway and enter on a different side? What is the issue here? Ms. Kauffman: The issue is the applicant wants to have two separated driveways because it's two units, with a fence down the middle. Commissioner Regalado: Okay. Ms. Kauffman: If he does not do that fence, there is room to do a driveway around the tree. That's what the HEP Board felt; that there was plenty of room to do a driveway around the tree, not in the configuration that they want to do it in. Commissioner Regalado: So the tree is in the way? Ms. Kauffman: The tree is only in the way if they do it in the configuration that they want to do it. Commissioner Regalado: Right. The tree is on [sic] their way. But -- Ms. Kauffman: But a driveway can be worked around it. Chair Sanchez: Does that answer your question, Commissioner? City ofMiami Page 196 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: Yeah, it does. It -- to me, it doesn't make sense to just have this debate about getting rid of the tree if they can change the driveway. I mean -- Ms. Kauffman: I also have Regina Hagger here, from Public Works, who can also shed some light on it. Chair Sanchez: I don't think -- listen, I don't think that -- Ms. Kauffman: Okay. Chair Sanchez: -- needs to -- I mean -- All right. Any further questions? If not -- You're ready? Ms. Dones: Yeah. Chair Sanchez: Okay. Commissioner Regalado: I mean -- ifI may? I -- someone -- this -- according to the tree ordinance, they did get a permit for that -- to get rid of that tree? No? Mr. Rubino: No. Ms. Kauffman: No. Commissioner Regalado: Okay, so they didn't get a permit, they cannot get rid of the tree, right? Ms. Kauffman: Correct. Commissioner Regalado: So -- Ms. Kauffman: And he's appealing -- he appealed that denial to the Preservation Board. Commissioner Regalado: Yeah, yeah. I understand that, but my point is that, yeah, he wanted to go through the process and all that, but we're coming very hard now on anybody that gets rid of the trees, and you know, they have to remedy and pay $1, 000 and $500, so I just don't think why a person will have so many recourse to get rid of a tree. There is an ordinance. You cannot get rid of the tree, so -- Commissioner Sarnoff There's a -- I don't mean to step on you. There's a document in this configuration, and my question to you is -- maybe somebody from either the City or the appellant can tell me -- it shows relocated oak, and it doesn't show the oak tree in front of the property. So how did that come about, or why does this document show a relocated oak? Mr. Rubino: You want me to answer that, Commissioner Sarnoff? Commissioner Sarnoff Yeah. Mr. Rubino: The issue with that document -- what that document is is the initial site survey from when we were initialed our -- when we were given our initial permit to build. That document -- at the time, in 2000 -- I'm always bad with these years -- I guess, late -- early 2005, when we applied for our permit, we gave them a survey. A tree survey was not required at that time to obtain a permit. What we had done was we had suggested -- we saw this tree, and we knew that this tree was not in good shape. As they said, we did know that there were two trees that did need to be removed, not oak trees. We applied for a permit to remove those trees. Looking back, maybe we should have applied to remove the oak at that time. We didn't because we thought -- this tree looks very bad now. It looks very bad. It looked bad enough that I took a picture of it City ofMiami Page 197 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 before I started construction because of the concern that I'm in Coconut Grove and it could become an issue. With that said, we proceeded and went through construction. The tree did not get better, it did not improve, and based on that, then we decided to ask to remove it. Commissioner Sarnoff But you haven't answered my question. What -- when you wrote that -- Mr. Rubino: That tree is the tree -- Commissioner Sarnoff Yeah. When you wrote down relocate -- Mr. Rubino: -- is the tree in the front. Commissioner Sarnoff So it was always your intention to relocate this oak? Mr. Rubino: It was our intention to relocate it, if it was at all possible to relocate it. It -- meaning if it could withstand relocation. Commissioner Sarnoff Well, I think, in fairness to you, the new tree ordinance came out after you had filed your application for a permit, right? Mr. Rubino: Yes. Oh, absolutely. Commissioner Sarnoff So you weren't -- Mr. Rubino: I think there's been two since then. Commissioner Sarnoff Well, I'm not aware of two, but -- Mr. Rubino: I don't know. Commissioner Sarnoff -- the point is that the language I read to you, I'm not sure existed, and maybe the City Attorney can help me with this. Do you know when the new tree permit went into effect? Ms. Chiaro: When the new tree ordinance went into effect? Commissioner Sarnoff Yeah. I'm sorry, ordinance. Ms. Chiaro: I do not, butl can check for you in a few minutes. Commissioner Sarnoff And so -- but my question to you is a little different because it seems like you always knew you were going to be moving this tree. Mr. Rubino: We wanted to have the option to move it, yes. But -- Commissioner Sarnoff But you never took permits out. When you -- I mean, I remember the lot. You took down a lot of trees in this lot. Mr. Rubino: We took down two trees. Commissioner Sarnoff Well, they were two large trees. One man's tree is another man's twig. Mr. Rubino: There was a ficus andl don't -- Commissioner Sarnoff Okay. City ofMiami Page 198 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Unidentified Speaker: And a gumbo limbo. Commissioner Sarnoff And a gumbo limbo. Mr. Rubino: Ficus and gumbo limbo. Commissioner Sarnoff Okay. Well, that's a little tree, I guess, huh? Unidentified Speaker: No. Chair Sanchez: Not really. Unidentified Speaker: Actually, I have -- Commissioner Sarnoff I was being facetious, okay. Mr. Rubino: It's in the picture. On the initial picture, you can see the condition that that one was in as well. Commissioner Sarnoff But you -- but my point is you took a tree permit for that knowing you had to do it, and then -- but at the time you're applying, you pretty well know you're going to have to move this tree. Mr. Rubino: We didn't know whether we'd have to move that tree or not. We didn't -- Commissioner Sarnoff That tree was -- Mr. Rubino: -- anticipate that that root -ball was -- Commissioner Sarnoff Let me -- Mr. Rubino: -- going to be size that it was going to be. Commissioner Sarnoff Well, let me put it to you like this. The picture you drew doesn't even show the tree. Mr. Rubino: 'Cause it's not on our property. It wasn't part of the survey because it's not on our property. That's where the problem lies. That's where we -- we had a whole discussion with the HEP Board about this as to whose problem that is; whether it's a Public Works problem, whether it's our problem. Chair Sanchez: So it's on the right-of-way? Mr. Rubino: It's in the public right-of-way. Unidentified Speaker: Yeah. Mr. Rubino: That's why it's a Public Works issue and not a zoning issue. Chair Sanchez: Oh. Mr. Rubino: That's why we're -- Public Works is here. Chair Sanchez: All right. Listen, you have -- you're -- you deserve due process. You have to go City ofMiami Page 199 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 through this process. You have an opportunity. Got to go through the whole process. We're going to let everybody testify. Mr. Rubino: No. I only got up because I -- Commissioner Sarnoff wanted an answer. Commissioner Sarnoff I did. I asked him. Chair Sanchez: All right. Mr. Rubino: I'm happy to -- Commissioner Regalado: Mr. Chairman. Mr. Rubino: -- I'll wait 'til the end, and then I can speak. Chair Sanchez: Let's listen to Public Works state their position and how they got to their conclusion and what they -- how they responded to this and how they handled it. Commissioner Regalado: Can I ask a question before --? Chair Sanchez: Commissioner Regalado. Commissioner Regalado: I'm looking here. On August 13, Public Works Assistant Director Francis Mitchell advised that Public Works did not support the removal of the tree. And so that was in August and Francis is there. So the tree is in the public's right-of-way. Public Works has the responsibility of the public right-of-way. Francis Mitchell, who is an expert in that area, says don't remove it. So why has this been going on and on? And the reason I'm asking is because we've been talking here today about equality, and you know, treat everybody the same. Remember that -- you may not remember. You do many cases, but in Shenandoah, about a year and a half ago, a family want to get rid of a tree and Public Works came and said no. So they have to live with the tree. End of story, you know. Public Work [sic] -- the tree was in the public's right-of-way. Public Work [sic] came and said no. The tree is okay, and you can't remove it. So the people had to just live with the tree. So what is the difference here? Francis Mitchell (Assistant Director): Okay. HI could explain. Francis Mitchell, representing Public Works. Chair Sanchez: All right. Once we get over the tree, we have to deal with the gate. So let's try to get through the tree. Mr. Mitchell: Okay. In August, the applicant presented an application for the removal of an oak tree. Our department performed a field inspection, and we posted a note for the tree to be removed. Then we received a -- some -- let me read it. Yeah. We received some protests from the neighborhood, then that's when we went and we removed the -- Chair Sanchez: I apologize. All right. Mr. Mitchell: Commissioner, ifI may answer your question. At first, we posted the tree. And when we received some protests from the neighbors, then we removed the postage [sic], the tree removal postage [sic]. And then the applicant, you know, we asked them to come to our office so they could discuss any other possibility to see if they could put the driveway. When they came to my office, we went ahead and did some sketch to find out what would be possible. And it's a very tight spot, so I told them to -- I told them that they have to go ahead and meet with the Treeman Trust to see if they could come up with an understanding. Nothing happened. They could not really reach an agreement, and that's when they did the appeal to the Historic Preservation City ofMiami Page 200 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Board. Chair Sanchez: All right. Ma'am -- Ms. Dones: Hi. Chair Sanchez: -- you're recognized for the record. Ms. Dones: Liliana Dones. I am a Cocoanut Grove Village councilwoman. I'm also the chair of the Tree Watch Committee of the Cocoanut Grove Village Council, and prepared this slideshow to support basically what Public Works said, what Tree Watch and Treeman Trust agree with, what some of the arborists in our community also concur with, and what the HEP Board found So you know, a picture's worth a thousand words, so if somebody else wants to come and speak at this time, I will be more than happy to do that and I'll simply like click the slides to show. Tree Watch is in support of keeping this tree. All trees, basically, deteriorate at some point, just like humans do, but we don't kill ourselves or have ourselves killed, except for Dr. Kevorkian, merely because, you know, we may trip and fall at some point in our lives and cause damage to others. So basically, that's how we feel about this. We are biased, and we're biased in the -- to the point -- and this is the Tree Watch Committee -- in that we're here to protect every single tree, you know, short of one that is actually about to fall over. If there's a chance for the tree to survive, then we're here to protect it. One of the things that we do want to point out is there are options, such as demonstrated in the presentation that you all have. This being one of them, where there's a tree directly in front of a garage, and the builder just simply put the driveway on the other side, and that car drives -- as you can see, can drive in and then sort of swerve over to the side and get into the garage, or as most people in this community do, simply leave the car outside. Very few people actually use the garage for a car. Most people have stuff in it. This is the tree. There were Code violations that were found against this, so the tree -- there was no measure of protection for this tree. Here they are. They've been listed, and you've had a chance to look at them. Bottom line, Tree Watch supports the continued existence of this live oak and our main statement, being "This is Coconut Grove. People move here for the trees and not for the driveways." Thank you. Chair Sanchez: Thank you. All right. Anyone from the public? Yes, sir. Two minutes. State your name and address for the record. Pierre Sands: My name is Pierre Sands. I live in Coconut Grove. I'm a certified arborist. I have a question to ask, just for clarity, please. May I ask? Chair Sanchez: To who? Mr. Sands: Mr. Rubino. Chair Sanchez: Through the Chair, yes. Mr. Sands: Mr. Rubino, is Mr. Iglesias your business partner? Mr. Rubino: He is. Mr. Sands: He is. Okay. The expression is, to err is human; to forgive, divine. Andl want to point out the reasons why Mr. Rubino and Mr. Iglesias has stepped beyond the threshold of clemency that you can extend to them. This is clearly repeated -- Mr. Rubino: Commission, let me -- Mr. Sands: I need to have -- City ofMiami Page 201 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Rubino: -- point out -- Mr. Sands: -- you respect -- Chair Sanchez: Whoa, whoa, whoa. Mr. Sands: -- my time. Mr. Rubino: I just want to point out that I am his -- he is a partner on this project. Chair Sanchez: He is? Mr. Rubino: Mr. De La Iglesia. Chair Sanchez: Okay. Mr. Rubino: What he's about to -- Mr. Sands: You don't know what I'm saying. Mr. Rubino: -- embark on -- Mr. Sands: You can't -- Mr. Rubino: -- has nothing to do with me. Mr. Sands: He's not respecting me. Chair Sanchez: All right, but hold on, hold on. Mr. Sands: I said nothing while -- Chair Sanchez: Sir -- Mr. Sands: -- he spoke. Mr. Rubino: That's fine, that's fine. Chair Sanchez: But is it relevant to the tree? Mr. Sands: It is relevant because -- Chair Sanchez: To the tree? Mr. Sands: Yes. It is relevant to the tree and the practice that they have -- that he is doing right now. Chair Sanchez: All right. Sir, you've got a minute and -- Mr. Sands: Okay. Chair Sanchez: -- thirty-eight seconds. Mr. Sands: Here's my point. City ofMiami Page 202 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Jesus. Mr. Sands: And the report by Lisa Hammer -- andl respect her. She said to them, in her report, you intended to retain the tree. That's their intent. They've said all along they wanted to keep that tree, but their actions and behavior are inconsistent with their expressed intent, and that's why you need to hold their feet to the fire. Secondly, Ms. Hammer says that the tree is, in this first report, the health of the tree is fair at best. Now, what she says is that if you do all these other things at the base of this tree, you compromise and threaten the tree. In her second report, on October 1, what is said is that the stress and decline noted in number one above are not related to the construction damage. Mr. Rubio has photographs of the tree in 2004. He says that it's now 2005. Is that correct, 2005? Mr. Rubino: That is correct. Mr. Sands: Okay, 2005. Prior to the beginning of any construction work, which show that it was, more or less, the same condition at that time. So what we see here is the tree, in opinion, is in decline, but what is stated here is it's stable. And so I took pictures of that lot today, andl want to pass it around to demonstrate -- Chair Sanchez: Okay. Hold on. Just finish what you've got to say, which you got -- Mr. Sands: Okay. Chair Sanchez: -- about ten seconds. Mr. Sands: -- that they have egregiously disregarded any attempt to preserve these trees. As a matter of fact, they have so grossly damaged the ficus aurea tree to the right of that building, that it is a hazard to the homeowner next door. And that's the point. Not only have they have damaged these trees -- and you should fight for the existence of that tree because it is a life. It is sacred, and it is our duty to preserve it for our prosperity -- our posterity. Excuse me. And finally, I think that because of this negligence they have demonstrated around these trees -- and Mr. Iglesias andl went through this when he developed the home next door to me. He did exactly the same thing. He cut the root systems on these trees. It jeopardizes my home. And what is good, though, is that we argued the point that he did not need to put in sidewalks in, and as a precedence, they did not build any sidewalks on that property. Andl think you should definitely -- you have given us a new code, tree code. The previous one had the teeth, andl think tonight you should use those teeth to demonstrate to these gentlemen, and anyone like them, you mean business about our trees in Miami. Chair Sanchez: Thank you, sir. Thank you. Can you turn --? Mr. Sands: I'd like you to -- Chair Sanchez: Yes. Mr. Sands: -- take a look at these pictures today. Chair Sanchez: If you could be so kind enough and turn them in to the City Clerk, she would make sure that we get a copy of it. Thank you so much. Anyone else? Thank you. Jim McMaster: Jim McMaster, 2940 Southwest 30th Court. I'm president of the Grove Treeman Trust. I'd like to stress that there's been a lot of construction in Coconut Grove recently, and you have not seen the Treeman Trust appealing anything to this -- City ofMiami Page 203 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: No. Mr. McMaster: -- Commission. Once, maybe three or four years ago, El Bellagio on Coconut Avenue, and we got here in front of this Commission, the Treeman Trust appealed it. Andl went into a back room with Mike Luis and his partner, and we came back in this chambers with a settlement. So we always try and work with the developer. We always try and work it out. We do not come here routinely on tree issues. I'm, you know, pleased that the owner hired Lisa Hammer. I do trust her reports. And if you look at her report -- her report from October 1, 2005 -- it -- quote, "It remains my opinion that if the tree is subjected to additional stresses" -- and then she lists -- it's down at the bottom, paragraph four, October 1 letter, down at the bottom. And those stresses would be driveway construction, sidewalk construction, security fence/gate construction. All they have to do, as Public Works staff has suggested, as Heritage [sic] Preservation Board staff has suggested, number one, do not install a sidewalk. They did it -- next to Pierre, they didn't do it. We've done it all around Coconut Grove. You do not install a sidewalk. You put the driveway on special sand and pavers so you don't disturb the tree roots. Do not put in the security gate and the fence. All of these things would save this tree. So I have looked at her report, andl do agree with the report. One last thing, I'm 57, going on 58, have a little sciatica here. We're not going to go into all my other pains and -- Chair Sanchez: Don't worry. We're not going to -- Mr. McMaster: -- you know. Chair Sanchez: -- cut you down. Mr. McMaster: Cut me down. Cut me down. But the fact is is that this is life. This is Coconut Grove. Coconut Grove is not a series of brand-new, little two-inch DBH 12- foot oak trees spaced evenly. This tree does lean over the road. If you come around the corner off of 27th or off of Mary at the other end, this is the tree you see leaning out over the street. It is part of Coconut Grove. I would urge you to deny the appeal, but would also urge you to include the recommendations given by the HEP Board officer, by Public Works, about installing an iron fence around the tree, a driveway and no sidewalks. Thank you. Chair Sanchez: Thank you, sir. Anyone else? Regina Hagger (Geographic Information System Developer): Regina Hagger, City ofMiami Public Works. I just want to bring your attention that the -- the application that we gave you shows the live oak on the survey. It's on page -- the fourth page. It does show the live oak right in the right-of-way. So -- I think Commissioner Regalado asked about that. Chair Sanchez: All right. Ms. Hagger: And that the application that was submitted by Mr. Rubino, which is page three, does not show the existing tree. It actually shows it, as you pointed out, as a relocated tree. Chair Sanchez: So it was not included in the plans for Public Works? Ms. Hagger: This is the plan he submitted. This is page three -- Chair Sanchez: And it's not on it? Ms. Hagger: It's not on it as an existing tree. It actually shows in the packet you, page three, as a relocated oak, so that means he intended to relocate the oak. Chair Sanchez: All right. Anyone else from the public? Yeah. You could speak after the City ofMiami Page 204 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 gentleman. As a resident, or you want to -- Ms Hammer: I was just going to add to whatl've already said. Chair Sanchez: It'll be through a question. Ms. Hammer: It'll what? Chair Sanchez: It'll be through a question. All right. Trying to help you out here, unless you want to pay 600 bucks right now. Ms. Hammer: Okay. Chair Sanchez: All right. Sir, you're recognized for the record. Steve Ruggieri: Steve Ruggieri, 3808 Northeast 6th Avenue. Couple points to make. First off the reason the tree needs to be removed is that the project was developed in a way that requires it. I'm not sure how a building permit was issued for this project without taking into account the tree. To have access to the driveway, the tree is in the way. This should have been caught a long time ago. The reason the tree needs to be removed is that the property owner wants to have a four -lane driveway. I think that's pushing the envelope. The tree has been violated throughout this process. The photographs that the developer submitted to you, Exhibits 1 and 2, or Attachments 1 and 2, showing the -- yes, those are the ones, which he stated are in 2005, there's obviously a construction fence on property. Construction is underway. The tree root -ball is not being protected as the tree ordinance requires. There is excavated material on the root -ball. That's not how it's done. The photo that was said to be as of Monday, with the fence around the tree, as it's supposed to be protected, you can see that the surface area around the tree has been disturbed. The fence -- and the fence is new. The fence was put up recently. I went by the site today on the way here, the fence is gone. The tree is not being protected All due respect to Ms. Hammer, you know your stuff but there is a reason that she is a lobbyist in this case, and that is because she is employed by the property owner. And ifI need to make one further point to bring this citywide is that whenever there are issues of a tree, we need to have an arborist that is hired by the City ofMiami that -- whose opinion represents truly the best interest of the community. And when an arborist or any other expert is hired by the property owner, then their issues are colored. Ms. Hammer did note that the tree has slight chlorosis, some twig dieback, moderately vigorous growth. That's not a tree that needs to go. It only needs to go because the developer needs it to go. Chair Sanchez: Thank you, sir. Mr. Ruggieri: Thank you. Chair Sanchez: Thank you. All right. Commissioner Sarnoff What question do you need asked? Chair Sanchez: What question -- what would you like me to ask you? Ms. Hammer: Any follow-up on whatl've already said. Chair Sanchez: Any follow-up on what you have already -- Ms. Hammer: Yes. Chair Sanchez: -- said? City ofMiami Page 205 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Hammer: Thank you, Commissioner. I would like to say that am an objective consultant. I do this for pay. I am a consultant. I've been doing it for 21 years, and I think if you review my record, you'll see that I've been on both sides of the issue for a long time, depending on the condition of the tree. What has happened through Public Works, what has happened through Zoning, what has happened with the appeals and all of that is not something I'm taking into consideration. I'm looking at the tree and the condition of the tree and what's going to happen there. One other thing that I did take into consideration is that many, many times, I've been called out to properties, particularly, since the new tree ordinance has gone into effect, where you need a permit to remove a dead tree, andl cannot tell you how many times I've gone onto a property where somebody's bought a nice, new house and there's a dead tree. And now -- it wasn't dead when they bought it, but it's dead now. And there the new homeowner is saddled with a tree removal permit, the tree removal, the mitigation, if there is any, and so forth. In this case, this tree is in decline. The applicant or the owner is willing to mitigate, at this point in time. He's willing to shoulder the cost and shoulder the burden of the tree removal in doing the mitigation. And as Ms. Dones pointed out, trees don't live forever. And if we want to keep a tree canopy in Coconut Grove or anywhere else, there is a turnover. There's a generational turnover of the urban forest, and sooner of later, you have to give up and you plant new ones and keep it going. So I just wanted to make that point. Chair Sanchez: Thank you. Ms. Hammer: Thank you. Chair Sanchez: All right. Anyone else? I think you're the last speaker, sir, and then we could move on to the gate. Ms. Dones: Was that in response to a question? Chair Sanchez: Huh? Ms. Dones: Was that in response to a question? Chair Sanchez: It's pretty late in the evening. Louis Duncanson: Good evening, everyone. It's a pleasure to be here at the Commission again. And I'm talking on part of Mr. Rubino. I've known him for several years. And in fact, I have one of the largest tree canopies on Matilda Street for the last almost two decades. Andl want to tell you, for the last seven years he lived beside me, he has never complained once to cut a branch from a tree, except for his HD (High Definition) television antenna and that's about it. He's a very wonderful person, a great neighbor. And Pierre is also a wonderful neighbor, also. He lives down the street for me. Andl tell you, I really feel that we should put -- take the time in to resolve it, resolve it well, so that it doesn't come up again in the future. Andl like what Ms. -- the lady said about the trees. We should look at the future of creating more of the canopy in the future. And it's a pleasure to be here again. Chair Sanchez: Sir, before you leave, could you state your name and address -- Commissioner Sarnoff Louis Duncanson. Chair Sanchez: -- for the record? Mr. Duncanson: Louis Duncanson, 3130 Matilda Street. Chair Sanchez: Thank you, sir. City ofMiami Page 206 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Duncanson: Truly a pleasure. Thank you. Chair Sanchez: All right. That concludes the public hearing. It comes back to the Commission. I think we've heard all sides. Ms. Dones: Are there any questions that are going to -- where any of these pictures will be needed? Chair Sanchez: Just leave that there in case somebody does have a question. Ms Dones: Okay. Chair Sanchez: It comes back to the Commission for discussion. Mr. Rubino: Can I just move it? Oh, it does go to the Commission, or do I get to -- Chair Sanchez: No, no, no, no, no, no, no. Mr. Rubino: -- respond? Chair Sanchez: No, no. We -- well, he does have -- if he wants to ask questions, yeah. Mr. Rubino: I though you had said -- Chair Sanchez: I got to afford you -- I got -- yes. Do -- in the process, I have to -- Mr. Rubino: I know we're rushed, and don't want to -- Chair Sanchez: No, no, no. That's okay. Listen -- Mr. Rubino: -- delay this. I know this has been a long day for you guys. Chair Sanchez: Yes, it has been, and we'll get through it. Mr. Rubino: May remove the --? Chair Sanchez: So listen, you have -- Mr. Rubino: Ms. Dones, may I? Chair Sanchez: Well, hold on. It's attached. Mr. Rubino: No. I see that. Ms. Dones: Would you like to speak from that other speaker 'cause - Chair Sanchez: Yeah, here. Move over here, and that way we'll leave the -- Ms. Dones: In case anybody needs to -- Chair Sanchez: -- laptop there. Listen -- Ms. Dones: -- refer to this. Chair Sanchez: -- you got five minutes to have any questions or -- City ofMiami Page 207 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Rubino: That's -- Chair Sanchez: -- if it's a statement, just two minutes, okay? Mr. Rubino: I just want to go through some things that were brought up by each person, whatever's relevant. I'll be -- Chair Sanchez: You have the right -- Mr. Rubino: -- very brief. Chair Sanchez: -- to rebuttal. Mr. Rubino: Thank you, Commissioner. Briefly, I want to go through this fast. Ms. Kauffman brought up that it is possible that there is ingress, egress. It is not possible to put a circular driveway. The egress on the left unit, you will not get out without driving over this root -ball. You will not be able to put pavers on sand, as you've seen in the pictures. If you put sand and then pavers, you're going to have it -- the driveway start about four feet higher than the street. So it is impossible to have this circular driveway that Public -- that the HEP Board has desired. As far as Ms. Dones -- the only thing that have an issue with is if there's a chance they'll protect it. Sometimes there are situations where it is better to move on, remove the tree and mitigate. This is one of those situations. There has to be discretion among these agencies to look at these trees and say what's better for the community. Put in the words of Lisa Hammer -- you can you read it in her report right there, and it's plain as day what she said -- I remain convinced that tree removal and mitigation by the current owner is in the best interest of the community, as it will prevent the new owners from bearing the cost of imminent tree removal and provide for mitigation, which might otherwise be waived if the tree is removed after it dies. As far as Mr. McMaster, about that he's never appeared before you before, the Village -- I think it was the Village of Center Grove newsletter -- I might be misspeaking -- they sent out a thing saying how there's been six requests for tree removal this year and five withdrew in the face of the Treeman Trust or Tree Watch. We're the only ones to take it this far. Everyone else has gone away because we come out here and we're on an island alone, and they come out with all the activists that come out for these types of events. So that's why he's never been here before. And as far as trying to work things out, we have gone above and beyond trying to work this out with Mr. McMaster. We tried to bring him to Public Works with us. He couldn't make it. We met him onsite with Ms. Hammer. We have had numerous conversations. We've offered him above and beyond the required amount of trees via mitigation to allow us all to proceed on this issue, and nothing has been acceptable. We've done -- Commissioner Sarnoffs office has requested that we meet; we met numerous times. He also said that it's the tree that you see leaning out into the street, and it's also the tree that leans out into the street, and as you can see in my pictures, that the FedEx (Federal Express) truck bangs into, that the Crystal Water truck bangs into, and everything that's got a large top bangs into this limb that goes straight out into the street. I ask you to really consider your ruling in this matter because I think that you're going to send a very large message here to other residents, not activists, but residents in Coconut Grove, as to what -- as to how someone gets treated when they go the right away. IfI were to have ripped this tree down in the middle of the night, the maximum fine I could have been fined in this case would have been $24, 000. It would have been 8,000 in trees, 1, 000 for taking the tree down and a $15, 000 fine. It has cost me five months of not moving my property, at $4, 500 in interest. That's $22, 500I have paid a bank to have that site sit idle, with homeless people trying to break into it, homeless people living in the allies, having to deal with the police. That is what it's costed me. The residents, the other developers, I can assure you, that will be back here ifI ever need to remove a tree, butl cannot say the same is going to be true for residents in Coconut Grove or other developers if they see that the reward you get for going through the correct channels, for hiring a competent -- the number -one arborist, for doing this the right way, and especially with a City ofMiami Page 208 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 situation where we have a tree that we have an arborist saying this tree is on the decline. This tree is in bad shape. What message do we send the community if we can't take that tree out? Why do we even have, on the mitigation chart, the chart one where it's with a permit or chart two, if it's without a permit? If this tree is not removable with a permit, I can't imagine a situation where it would be. Thank you for your time. Chair Sanchez: All right. Thank you. And it comes back to the Commission. Commissioner Sarnoff. Commissioner Sarnoff Mr. Chair, I can't say that there would ever be a more familiar situation to me than this situation. I've lived for the past 12 years, going past that tree probably twice a day, and the tree is in decline. It was in decline probably over the last two hurricanes. It got hurt pretty bad; that whole street got hurt pretty bad. I sit here, and I want to kind of speak out loud. I know Danny De Iglesias for quite a while. I know Mr. Rubino; I know Mr. Rubino's wife. I know everybody that testified here today. I know Louis Duncanson. I know Liliana Dones. I know Jim McMaster. I know Jim McMaster doesn't get up and speak about trees, unless he's 100 percent confident. I know Liliana is a great advocate for trees because we were cochair of the Coconut Grove Tree Watch together. Louis Duncanson, never seen Louis at City Hall, and it's good to see you, Louis. And even though your wife didn't vote for me, I know you did. Chair Sanchez: Hey, he neutralized the vote. Commissioner Sarnoff It was a split house. Chair Sanchez: He neutralized the vote. Commissioner Sarnoff You know, I'm disappointed, Danny, that you would hand into Public Works a document that shows a relocated oak tree and doesn't show something in front. I don't think that's an omission on your part. I think you're astute enough, I think Rubino knows well enough that this is not a simple mistake. Yet, I think ifI saddle you here with this tree today, we'll be back, and we'll be back with a tree that will be dead, either it'll be dead overnight or it'll die slowly. And you're certainly asking me to go against everyone in my neighborhood who comes out and believes in me for trees. Andl do believe in trees. I'm an advocate for trees. I think they -- who would have known Al Gore would have told us years -- this year, last year, that these things were going to possibly save our lives, were going to create less carbon and take it out of the air and all this good stuff. I just happened to have liked trees. I was born in Brooklyn, andl was raised there for the first ten years of my life, andl could tell you I thinkl saw three trees. Just didn't exist. I played baseball on asphalt. I could tell you how to slide into asphalt and not really hurt yourself real badly. I just didn't know trees, and all I knew was concrete. When I came to Miami, I thought I'd fell and gone to heaven. So, sure, I'd love to see this tree stay. But I'd like to hear from Mr. Rubino is something more than the recommendations of Ms. Hammer, and I'd like to hear what you're going to replace this tree with shouldl -- should we rule in the manner that might be conducive to you putting a fence up and a sidewalk? Andl want to say to center Grove, it is important to me, as a Commissioner, that we put sidewalks in center Grove. I understand south Grove, you may not want sidewalks. Center Grove should have sidewalks. We're now becoming a good family place; it will help. Unfortunately, center Grove still requires fencing. Andl say that unfortunately. I remember when I made the final decision to put a fence up -- I know Pierre's shaking his head no. And it's a shame that we have to have fences. It's a shame that the center Grove still needs fences. Andl hope, before I leave this Commission, there's going to come a time when there's a whole new crop of people out there and they're building homes, and they say, what are you putting a fence up for? But we're not there today. So I know you're going to have to put up a fence, and I know that you cannot put a fence up with this tree the way it is. And the reason you need to do a whole lot better than what you're doing is this document right here. And Mr. Rubino, you're a lawyer, I'm a lawyer. Lawyers love to look for the truth. You know what this is? This is the truth. I went through City ofMiami Page 209 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 every one of these documents. I looked at all the pictures. I'd seen this tree for ten years. I didn't need to look at the pictures. I didn't need Lisa to tell me what kind of tree this was. But this document right here, between me and you, as lawyers, as if we were alone, you know what this means. Somebody was pulling something. And you've got to pay for pulling something, and you've got to compensate this neighborhood for pulling something. I could leave the tree where it is, andl know that tree will die 'cause I know you probably won't handle that tree with kid gloves, andl know that will be a financial hardship to you. What you could do in the next one minute is give me a good alternative. Mr. Rubino: What are you like in mitigation? Commissioner Sarnoff Well, never say that to me. Mr. Rubino: Well, don't -- as you know, the real estate market is not what it once was. Don't -- Commissioner Sarnoff Here's what I propose you -- Mr. Rubino: -- we're already 24 in the hole. Commissioner Sarnoff -- do. You work with Jim McMaster. You supply 12 hardwood trees of not less than a four -inch DBH and not less than 16 feet in height. Those are a dozen trees. He will select where they go. You will provide the planting of the trees. You will create the hole, and you will spend 18 months of watering that tree and taking care of it. And should that tree die within that 18 months, any one of these one dozen trees, you will be responsible for putting the same sized tree back in. Mr. Rubino: I just request that they be placed in Coconut Grove, if that's okay with you? Commissioner Sarnoff I -- trust me, if Jim McMaster were to go anywhere but Coconut Grove, we'd have him up here, and he'd have his second Commission meeting real fast. Mr. Rubino: I'm sure -- we've worked with Jim in the past. I'm sure that Jim andl can figure out how to place these trees. Commissioner Sarnoff Pierre, you want to say something? Mr. Sands: Yes. I -- if you're going to -- okay. Chair Sanchez: Briefly, 'cause once we're done -- Mr. Sands: Yeah. I really -- Chair Sanchez: -- with the tree -- Mr. Sands: -- would like them to make sure that the quality of trees -- Commissioner Sarnoff Jim's going to pick the tree. Mr. Sands: -- are like Florida fancies -- Commissioner Sarnoff Right. Exactly. Mr. Sands: -- you know, and they -- Commissioner Sarnoff Where's Jim? Is he here? There he is. City ofMiami Page 210 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Rubino: Commissioner, you've seen the trees we've planted on our other properties. We've never planted bad trees. Commissioner Sarnoff You know what? I'm going to let Jim pick the trees. And you're going to -- and if you can't come -- Mr. Sands: Secondly -- Commissioner Sarnoff -- to an agreement -- Mr. Sands: -- they should hire experts to plant those trees because a lot of the planting that gets done in the Grove is inferior. Commissioner Sarnoff Did hear you volunteer? Mr. Sands: I'll watch it, andl'd like to be on your payroll Mr. Rubino: I'm sure he would. I think that Jim andl will -- Chair Sanchez: All right. Mr. Rubino: -- work fine together. Mr. Mitchell: And also -- Chair Sanchez: Come on. Mr. Mitchell: -- I would like to add for those trees to be in the public right-of-way. Chair Sanchez: Oh, absolutely. All those trees will be in the public right-of-way because this tree is in the public right-of-way. Commissioner Sarnoff I agree. Mr. Rubino: That's fine Mr. Sands: One last thing. Commissioner Sarnoff Go ahead. We won't let -- go up to the podium. Mr. Sands: But again, I'm against removing that tree. Commissioner Sarnoff I know you are. Mr. Sands: I'm really against it. I really need -- Commissioner Sarnoff And the -- Mr. Sands: -- each and every Commissioner to consider -- Applause. Mr. Sands: -- the reason why we're here. City ofMiami Page 211 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff And the Grove is -- Mr. Sands: You're -- and again, we want to establish intent, and they clearly worked against that. Commissioner Sarnoff Let me tell you, Pierre, why I'm doing this. Because the tree ordinance that I wrote -- I wrote March of 2000 -- March 7, 2007, that ordinance is the one that changed the way we looked at swale trees and the way we looked at ingress and egress to various homes. He had already sited his building. That's what I was looking for. That's why I kept on asking when were your plans committed. I -- look, Pierre, I know, like you do, that they could have put the garage on the sides and that tree might have made it, but he had already sited his building. So in a way, in my opinion, he's got a vested right to have his property sited the way he wants 'cause I'm doing after -the -fact legislation to affect the tree. And you know, I don't want to -- he's not with clean hands. I'm not suggesting the man has clean hands, and that's why I'm trying to put a bigger -- a hotter onus -- a more onerous mitigation on him than normal. Mr. Sands: Part of the reason why we had that new code -- Commissioner Sarnoff But the new -- Mr. Sands: -- is the fact that these guys did the very same thing to me, but the existing code, the preexisting code was plenty strong Commissioner Sarnoff But the preexisting code -- 'cause I wrote this language -- did not address ingress and egress to garages and parking sites. Mr. Sands: But what it did address is the necessity to protect the root zone of every tree. Commissioner Sarnoff I'm not even going to deny that he didn't do a good job of protecting the roots. He didn't. Mr. Sands: Yeah. I mean, they've done nothing, and -- Commissioner Sarnoff But all you're doing -- andl apologize, Mr. Chair. I -- we should -- Mr. Sands: I apologize to you, but we -- Commissioner Sarnoff No, no, no, but what -- Mr. Sands: -- really stand adamant for this. Commissioner Sarnoff IfI keep this tree here, this tree going to die. Mr. Sands: You say that, but you could -- but I would tell you there's a good chance, if you don't further damage the roots, you don't put that fence on there, and don't put the sidewalk -- you're going to have to understand that while you want sidewalks in Coconut Grove, you are going to jeopardize the remaining canopy that we have, and we don't have that much to play with anymore, and that's why we're at this critical point where you cannot afford -- this is not a luxury here, you know. We don't have the luxury to play with these trees, and those trees ought to be protected, they ought to be watched over, and that tree won't necessarily die. I stand here as a professional and say I don't believe it'll die, if they don't harm it any more than they have already to date, and that ought to be taken in consideration. You don't see one barrier around that tree at all. I thank you. Commissioner Sarnoff Okay. City ofMiami Page 212 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Thank you. Mr. Sands: We really want that. Chair Sanchez: All right. That's it. There's no further discussion. Let's get -- is there -- that -- you have proffered a motion. Commissioner Sarnoff Yes. What do you want to say, Jim? Just -- Mr. McMaster: Well, I guess I should say what I think about this. Commissioner Sarnoff No, no, no. If you're here to disagree with me, I don't need to hear that. Mr. McMaster: Well -- Commissioner Sarnoff You can -- Mr. McMaster: -- I have to slightly. I'm not comfortable with this. If this is what you're requesting for the Treeman Trust to get involved, my concern is is what -- the quality of the trees. And the only way to ensure the quality of the trees would be to have Mr. Rubino agree to use Davis Landscaping. We always know we can trust Davis Landscaping -- Chair Sanchez: All right. Mr. McMaster: -- to have quality -- Commissioner Sarnoff But -- wait, no, no. Mr. McMaster: -- trees. Commissioner Sarnoff That's fine. Would you -- Mr. McMaster: Yeah. Commissioner Sarnoff -- agree to that? Mr. McMaster: I don't want to do this anyway, but if I'm being -- and ifI have to do this -- Mr. Rubino: I'm not -- Commissioner Sarnoff Wait, wait. Mr. Chairman -- would you agree to chairman -- would you agree -- Mr. Rubino: I have no idea who that company is. Commissioner Sarnoff Actually, they did work on my house. I know them pretty well. Mr. Rubino: I'm not saying I won't agree, but I'm certainly going to -- If I'm going to buy a TV (Television), and I'm going to buy it at Best Buy or I'm going to shop here, I'm going to shop there, I'm going to try to get the best price for the same quality set, meaning -- Commissioner Sarnoff Well, you know what? If that's -- you know what? Mr. Rubino: Then that's fine. If you want me to use 'em, I'll use 'em. City ofMiami Page 213 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff That was a smart move. Chair Sanchez: All right. So Commissioner -- hold on. You're a tree expert. Mr. McMaster: Yes, sir. Chair Sanchez: You've seen the tree. Mr. McMaster: Yes, sir. Chair Sanchez: Is it in good --? What condition is it to you? Mr. McMaster: I would prefer to keep the tree. I think it -- Chair Sanchez: Thank you very much. Mr. McMaster: -- you know -- Chair Sanchez: That's it. Thank you. Commissioner, you made a motion with all those conditions. Is there a second? Commissioner Sarnoff Can I put the conditions in? Ms. Chiaro: Yes. I would ask, Mr. Chair, that the motion be restated so it is clear -- Chair Sanchez: All right. Ms. Chiaro: -- for the record Chair Sanchez: Could you please -- Commissioner Sarnoff All right. Chair Sanchez: -- restate the motion? Commissioner Sarnoff I will move to overturn the HEP Board rule -- was it the HEP Board ruling? -- ruling with the proviso that they provide -- that they utilize Davis Landscaping, that they provide 12 hardwood trees of four -inch DBH, 16 feet in height, that they be the grade selected by Davis Landscaping. Want to help me with this? Mr. McMaster: Oak trees. Chair Sanchez: Oak trees. Mr. Sands: Florida fancies. Commissioner Sarnoff And that they be responsible for siting along with Jim McMaster for his sites, along with Public Works, in the public right-of-way; that the trees be maintained for 18 months -- that means water and whatever else they need -- and should a tree die within that 18 month [sic] or any tree, they need to replace any of the trees that die within that 18-month span. Ms. Chiaro: And that the permit to remove the tree will be granted. Commissioner Sarnoff And the permit to remove the tree will be granted. City ofMiami Page 214 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: All right. Commissioner Regalado, do you second that? Commissioner Regalado: Yeah. Chair Sanchez: Okay. There is a second. Discussion on the item. I'm going to be very brief. I've had three experts here tell me that the tree is in good condition. After hearing all the statements that are made here -- and praise the Commissioner for trying to find a solution to this -- let me tell you the document that doesn't allow me to accept that, and it's this document. This document does not allow me to accept that because what this document shows is that there was something there that doesn't smell right. With all due respect -- and I'm just one vote. I got nothing against you -- Mr. Rubino: No, no, I know. And think that document you're referring to was created once we had this problem. I don't know if you're aware of that. That's the survey that we got to show you where the tree was. That survey was created three months ago. I didn't realize what you had been looking at. Commissioner Sarnoff This -- Mr. Rubino: My surveyor went out and created that document -- Commissioner Sarnoff This here? Mr. Rubino: No. Unidentified Speaker: No. That is the site plan. Yes. Mr. Rubino: This document with the tree on it was created three months ago. Chair Sanchez: I'm understanding this document not to show the oak tree. Ms. Thompson: Chair, ifI might. He's not recording. Can we just get him --? Chair Sanchez: Yeah. You got to get recorded. Mr. Rubino: I apologize. Chair Sanchez: You got to get recorded. All right. 'Cause I think, for one, based on that -- originally -- the tree in question -- and where's Public Works? Was the tree in question included in the plans to the Planning Department? Ms. Hagger: To the Planning Department? I don't know what he submitted -- oh. What we have here is his application to the Public Works Department. Chair Sanchez: Was that oak tree included in the original request? Ms. Hagger: The oak tree is showing -- showed on his survey, but it is not showed on his site plan. Chair Sanchez: Not -- Ms. Hagger: On his site plan, which is basically the same thing you have with the Public Works stamp -- City ofMiami Page 215 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Chair Sanchez: Is -- Ms. Hagger: -- it shows -- Chair Sanchez: -- can you explain that, why it's not shown in the site plan? Mr. Rubino: And whose survey is this? IfI may. Commissioner Sarnoff Are you looking --? Mr. Rubino: 'Cause now I'm -- Ms. Hagger: This is the survey that you included in your application on -- Chair Sanchez: But wait a minute. Mr. Rubino: That's the survey that I had done three months ago. Chair Sanchez: Okay. Whoa, whoa, whoa. Relax, relax. Listen, relax. Mr. Rubino: Because this is -- Ms. Hagger: The survey -- Mr. Rubino: -- very important. Ms. Hagger: -- has a date on it. Chair Sanchez: Relax, relax. Okay. This is just what I want to get to. I just want to -- Mr. Rubino: What's the date on that survey? Chair Sanchez: -- make sure that when -- we're address here -- Ms. Hagger: But the -- Chair Sanchez: -- we're getting the whole story. Ms. Hagger: Unfortunately, this is a copy, so let me look -- I'd have to look in the file because it's -- Mr. Rubino: I apologize. Ms. Hagger: -- signed and sealed. But this is the survey that he supplied with us for a permit on -- it was -- Chair Sanchez: And was that -- Ms. Hagger: -- August 3 of last year. Chair Sanchez: -- oak tree in that survey? Ms. Hagger: The oak tree is on the survey. Chair Sanchez: It's on that survey. City ofMiami Page 216 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Mr. Rubino: I believe that that survey was provided only in the packet that I gave to the HEP Board because I had the survey done to show the proximity of exactly where the oak tree was, meaning was it 15 feet here or was it 5 feet there. That survey was not, andl repeat, Commissioners, 'cause this is very important, andl say this on my word, that that survey is brand-new. Ms. Hagger: That survey was submitted with your application. It is required, or we would reject your application. Mr. Rubino: For the tree removal permit then. Ms. Hagger: For the tree removal permit. Mr. Rubino: That's when we had it done. Ms. Hagger: In August of 2007. Mr. Rubino: Correct, but not for our permit, Commissioner. Not to get the building permit. That was submitted to show them the tree that we wanted to remove. That is not a new -- I don't know if it has a date on it. I don't know if I have a copy of it, but I -- Ms. Hagger: I have the original application. Do you want -- Mr. Rubino: Hold on. Ms. Hagger: -- me to see --? Mr. Rubino: I thinkl actually -- Chair Sanchez: I just -- Mr. Rubino: -- have a copy of it -- Chair Sanchez: -- listen -- Mr. Rubino: -- 'cause we -- actually -- Chair Sanchez: -- I'm uneasy with that. Maybe I -- listen, I don't want to -- I just don't want to get into it. I'm not at ease with that. I feel that there was maybe something done that wasn't proper, but that's my opinion on that. Ms. Hagger: Do you have any other questions? Chair Sanchez: No, I have no further questions on this, so we could vote on the issue. That's -- Mr. Sands: One question. Chair Sanchez: -- the -- what has been proffered by the Commission. Does the attorney have it in the record with the conditions? Ms. Chiaro: Yes. The record is clear as to what the motion and the conditions are. Chair Sanchez: You're clear? City ofMiami Page 217 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Chiaro: Yes. Chair Sanchez: Okay. The motion is made by Marc and second by Commissioner Regalado. On the vote, all in favor, say "aye." Commissioner Sarnoff Aye. Chair Sanchez: One "no." All right. We move on. Let's move on to the gate. Unidentified Speaker: Thank you. Unidentified Speaker: Thank you, Commissioner. Chair Sanchez: All right. Man, you picked some winners today. Commissioner Sarnoff I know, right. PZ.18 07-01465ha RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION DENYING OR GRANTING WITH CONDITIONS THE APPEAL FILED BY LUCIA A. DOUGHERTY, ON BEHALF OF DAVID WALLACK, OWNER ("APPELLANT") AND AFFIRMING OR REVERSING THE CONDITIONS SET FORTH IN THE DECISION OF THE HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD ("HEPB"), WHICH APPROVED WITH CONDITIONS A CERTIFICATE OF APPROPRIATENESS FOR THE AFTER -THE -FACT INSTALLATION OF A METAL GATE, FOR THE PROPERTY LOCATED AT APPROXIMATELY 5725 NORTH BAYSHORE DRIVE, WITHIN THE MORNINGSIDE HISTORIC DISTRICT, MIAMI, FLORIDA; REMANDING THE CRITERIA FOR THE METAL GATE INSTALLATION TO THE HEPB CONSISTENT WITH THIS DECISION. 07-01465ha Appeal Update.pdf 07-01465ha CC Appeal Letter.pdf 07-01465ha Aerial Map.pdf 07-01465ha HEPB Reso.pdf 07-01465ha HEPB Fact Sheet.pdf 07-01465ha Application & Supporting Documents.pdf 07-01465ha Legislation (Version 2).pdf 07-01465ha Legislation (Version 3).pdf 07-01465ha Fact Sheet.pdf 07-01465ha-Submittal-Correspondence. pdf 07-01465ha-Submittal-Petition. pdf 07-01465ha-Submittal-Photographs. pdf LOCATION: Approximately 5725 N Bayshore Drive [Commissioner Marc David Sarnoff - District 2] APPELLANT(S)/APPLICANT(S): Lucia A. Dougherty, Esquire, on behalf of David Wallack, Owner FINDINGS: PLANNING DEPARTMENT: Recommended denial of the appeal and approval with conditions* of the Certificate of Appropriateness. HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD: Approved with conditions* the Certificate of Appropriateness on November 6, 2007 by a vote of City ofMiami Page 218 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 6-1 *See supporting documentation. PURPOSE: The approval of this appeal will allow the after -the -fact installation of a metal gate. Motion by Commissioner Sarnoff, seconded by Commissioner Regalado, that this matter be ADOPTED WITH MODIFICATIONS PASSED by the following vote. Votes: Ayes: 3 - Commissioner Sarnoff, Sanchez and Regalado Absent: 2 - Commissioner Gonzalez and Spence -Jones R-08-0055 Chair Sanchez: All right. PZ.18 is a resolution, and the purpose is to approve of this appeal -- will allow the after -the -fact installation of a metal gate. Priscilla A. Thompson (City Clerk): You know you've lost a quorum? Chair Sanchez: Yeah, I know. What am I going to do? We've gone from trees to gates. Why don't we take a five-minute recess? [Later... Chair Sanchez: PZ.18 is the item being discussed. It is to -- the approval of an appeal, which will allow after -the -fact installation of a metal gate. Unbelievable. All right. Let's go. Go ahead. Start. Let's go. Lucia Dougherty: Good afternoon -- good evening, Mr. Chair, members of the Commission. Lucia Dougherty and Mario Garcia -Serra, here today on behalf of the owner of the property, and with me this evening is David Wallack, as well as his colleagues, Christine Battles and Brigit Heller. This is an appeal from the Historic Preservation Board, which denied a Certificate of Appropriateness for a driveway gate in Morningside. David Wallack is the owner of Mango's Tropical Cafe in Miami Beach on Ocean Drive, as well as Power Studios in the Design District, but the gate in question is on his waterfront home at 57th and North Bayshore Drive, in Morningside. The house was built in 1969. It was purchased by Mr. Wallack in 1996. It's a one-story building. He did not take down the building and put a McMansion up, which he had every right to do at the time he bought it. But instead, what he did is he completely restored and renovated an existing one-story mid-century 1969 house. It is, to my untrained eye, some -- when I go there, it looks like a Frank Lloyd Wright house. It is keystone, copper, and wood. It is absolutely a magnificent restoration, and it took him eight years to restore it. He lived in the garage apartment or the guest house in the back of the -- in the front of the building for eight years while this building got restored. And it's painstakingly restored. What I'd like you to do just -- I see you're all flipping through the book, but let me kind of walk you through the book. The very first cover book -- cover of the book is actually the front door. This is the original front door of the house. And what Mr. Wallack did is he found the artist for the original front door of the book and he had him commissioned, and it took him three years to commission the gate, or to actually make -- or create the art work, which is the gate, as well as the garage door, which we don't have a photograph and is not an issue at this hearing. But if you look at the first page, it shows you the gate in the context of the street. It's set 20 feet back from the street. You can see that there's a sidewalk, and it's not on the City's right-of-way; it's on his own private property. Again, the second photograph shows the same. The third photograph is a photograph up close of the front gate, which, as you can see, is a sunrise and two palm trees. And the sunrise is supposed to depict Morningside as the sun rises in Morningside. That's what the artist had intended. Now the artist is a very special artist, and one that's actually pretty good for Miami Beach -- I mean, excuse me, for Miami because if you look at the newspaper reports that you see that are attached, the artist actually is one that -- the first one is Emeril -- is Kim Brandell, and City ofMiami Page 219 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 the first photograph is Emeril Lagasse's restaurant in Miami Beach. But the second photographs, you can see here, is at Trump Tower and many other locations around the country. And he also -- yes? Chair Sanchez: Lucia, with all due respect -- Ms. Dougherty: You want -- Chair Sanchez: -- are you going to take two hours? Ms. Dougherty: I don't want to take two hours. You tell me you're ready to vote in favor of this - Chair Sanchez: Well -- Ms. Dougherty: -- I'm happy to stop right now. Chair Sanchez: -- it's a gate, for crying out loud. Ms. Dougherty: Okay. Chair Sanchez: I mean, just elaborate on -- Ms. Dougherty: We are very -- Chair Sanchez: -- the gate. Ms. Dougherty: -- passionate about our gate. Chair Sanchez: Okay. Ms. Dougherty: This is important to us. So if you're telling me that you are completely convinced already -- Chair Sanchez: No. I'm not convinced, but -- Ms. Dougherty: All right. So then -- Chair Sanchez: -- I mean, we don't need to get -- Ms. Dougherty: -- let me do this -- I have to kind of go through this little process. So you see in this -- these -- newspaper article -- Commissioner Sarnoff Wait, wait. Let me help you, Lucia. Ms. Dougherty: Sure. Commissioner Sarnoff Other gates, other Morningside gates, are these -- Ms. Dougherty: Correct. Commissioner Sarnoff -- are these approved gates? These are okay gates? Ms. Dougherty: These are all gates that exist. The only one that I know that I looked up, just because I thought it was curious that this gate was approved by the Historic Preservation Board City ofMiami Page 220 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 and got a building permit -- this is appropriate for Morningside. If this book doesn't show you one thing, it shows that there are a variety of gates, and there's no one particular gate that is -- Commissioner Sarnoff Is every gate we're looking at here an approved gate? Ms. Dougherty: I don't know that. I know that this one is an approved gate 'cause it's the only one I looked up. I assume that they were either approved before your Historic Preservation Board -- I mean, historic district was approved -- Commissioner Sarnoff 1986. Ms. Dougherty: Hmm? Commissioner Sarnoff 1986. Ms. Dougherty: Many of them could have been before 1986. Commissioner Sarnoff Okay. Ms. Dougherty: But the point is, they're up. Andl have a couple of letters in the very back of the book that I'd like to refer you to. One is written by Randall Robinson, who is the author of this book about Miami MiMo (Miami Modern). Randall Robinson. Yeah, he's just taken a job in Fort Lauderdale -- Commissioner Sarnoff Is that an approved gate? Ms. Dougherty: -- so he was -- Excuse me? Commissioner Sarnoff Is that an approved gate? Ms. Dougherty: I only -- Commissioner Sarnoff No? Ms. Dougherty: -- looked up one gate, that's all I'm trying to tell you, so I assume it is. And Randall Robinson, in a letter -- and I'm not going to read the whole letter -- says that he urges you to support this. And it says this, along with the gate open transparent quality, celebrates instead of detracts from the unique character ofMorningside neighborhood, andl urge you to support it. I have another letter -- and it's also in your book --from a very famous artist, Edouard Duval -Carrie, and he says that, to me, it is truly singular that the whole of the fact of the architecture, the art is meshed in well in a graceful manner with the surrounding luxurious of the greenery, and then most significant, that it is certainly to be lauded for its nature and what is best served by this house. So we have two experts basically saying that this does comport with the Morningside vernacular. So what we have here is many gates of a various variety. We have a man who has taken the time to commission the original artist in the original house to come forward and to spend his money. By the way, this is the same artist that you have just commissioned or the Port ofMiami just commissioned to put a sculpture in Biscayne Boulevard for the Port ofMiami. He also did the palm tree chair that's right here in the park right across the street from the -- so it's -- he's a renowned artist, one that you know as well. So with that, I'd like to ask my neighbors to -- anything else? Chair Sanchez: All right. These are -- Ms. Dougherty: Oh. The other thing I wanted to mention is that one of the things that the staff said is that they wanted a picket fence. This is essentially a picket fence with some artwork on it. City ofMiami Page 221 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 So there's -- it's very transparent. It's essentially a picket fence that goes like this, instead of straight up and down. Chair Sanchez: All right. Ms. Dougherty: We also have a petition that is in your package. They have a hundred names of the people living in Morningside. One hundred residents. I don't know if there's that many more houses in Morningside, but 100 residents signed this petition in support of it, including, by the way, Elvis Cruz, as well as Pat McCoy, who is the former president of the Morningside Civic Association. So we would ask -- Chair Sanchez: All right. Commissioner Sarnoff If that's the case, what are we here for? Chair Sanchez: Yeah. What are we here for? Ms. Dougherty: Exactly. Elvis Cruz. Chair Sanchez: All right. Listen, hold on. Is there anyone here to speak on this item? All right. Okay. Better yet, is there anyone here in opposition to this item? None? Okay. Thankyou. Are you ready? Let's go. Kathleen Kauffman: Thankyou, Mr. Chairman, members of the Commission. This applicant originally came to the HEP (Historic and Environmental Preservation) -- I'll be brief. Chair Sanchez: Very brief. Ms. Kauffman: -- Board in '96 and got a Certificate of Appropriateness for an approval of a plain metal picket fence. So he had approval for a specific gate that did comply with the guidelines. And he came back to the HEP board because he had installed something without the COA (Certificate of Appropriateness) and without a permit. Basically, the Preservation Board felt it would set a very bad precedent to just go ahead and approve a fence that did not conform to the Morningside guidelines -- Chair Sanchez: All right. Ms. Kauffman: -- after the fact. Chair Sanchez: Okay. Thankyou. Commissioner Sarnoff Do these conform with the Morningside guidelines now? Ms. Kauffman: Actually, he's on Bayshore Drive, and in Morningside, you're not even allowed to have a gate on the front property line or in front of the house. Chair Sanchez: But all of these do that. Ms. Kauffman: Properties -- Commissioner Sarnoff Everybody -- Chair Sanchez: Everybody has them. Commissioner Sarnoff Bayshore Drive, everybody has a gate. City ofMiami Page 222 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Kauffman: -- on Bayshore typically get an exemption from that because the houses on Bayshore are set so far back -- Commissioner Sarnoff Right. Ms. Kauffman: -- and they're near the water. So the Board generally grants the exemption from those guidelines for the properties on Bayshore. Commissioner Sarnoff So are we upset with the procedure, but not the end result, or are we upset with both? Ms. Kauffman: I believe the -- Chair Sanchez: No. Ms. Kauffman: -- HEP Board had issue with both. Commissioner Sarnoff With the --? Ms. Kauffman: Procedure. Commissioner Sarnoff And result? Ms. Kauffman: And the -- because the HEP Board does not have criteria to determine artistic gates. Commissioner Sarnoff What's wrong with the gate? I mean, as we sit here right now, if we were discussing this for the first time, what's wrong with the gate? Ms. Kauffman: It's not for me to personally judge the gate. I -- Chair Sanchez: All right. Listen -- thank you. Anyone from the public wishing to address this issue? Come on up. State your name for the record. Evelyne Dominique: My name is Evelyne Dominique. I work for Mr. David Wallack. I'm his executive assistant and executive coordinator. In that capacity, I am in his neighborhood on a daily basis, sometimes more than once. Beyond that, I have personal friends who live in Morningside, so this is a place that, frankly, throughout the years that I've been in Miami, I take honor in visiting for the following reasons. This is one of the few places left where there's a sense of pioneerism [sic], where people took a neighborhood, which, in the not -so -distant past, had run down. They took their money. They took their dreams. They took their families. They took their risk to build this community. Part of the beauty of that community is the originality of each space, in terms of nature, in terms of architecture. And may I add, just on a practical level, this morningl was getting dressed, and I'm listening to the local news, andl hear there are more robberies in the Morningside, et cetera, area, and that the police at that time this morning stated they don't have enough manpower to oversee the security. So even on a practical level, this is safe. I ask you to consider this beautiful artwork -- Chair Sanchez: And support the gate. Ms. Dominique: Yeah. Chair Sanchez: Thank you much. City ofMiami Page 223 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Ms. Dominique: My pleasure. Chair Sanchez: Next speaker. Bruce Weil: I'll be very brief. My name is Bruce Weil. I reside at 5901 North Bayshore Drive, three houses directly north of Mr. Wallack. I've been there since 1995, prior just -- when the community was starting to change. There were many other Morningside residents that were here earlier, but could not stay as late, so they left one by one by one, but we did have more people here to support it. Everybody in Morningside loves this gate. I can -- you know, just from looking at it, you can see it enhances the community and enhances the property, and we would ask that you approve this gate 'cause it's obviously something that's aesthetically very pleasing to everybody that walks by it. And I'm there every morning and every night walking my dog, and I'm in the street all the time, and people always talk about how beautiful it is. Thank you. Chair Sanchez: Thank you so much. Next speaker. Brigit Hefter: Hello. My name is Brigit Hefter, andl live at 565 Northeast 53rd Street. I'm also a resident of Morningside. I'm actually one of those few that did stay behind and did not go, and I -- I'm here to support the gate. I think it's beautiful. I go by there all the time. I have a lot of friends that live in Morningside, as well. Chair Sanchez: Thank you. Ms. Hefter: Thank you. Chair Sanchez: All right. Kim Brandell: My name is Kim Brandell. I was commissioned by the original owner of the property, andl made this door -- Chair Sanchez: Beautiful. Mr. Brandell: -- copper -clad door. Years later, Mr. Wallack found me because he wanted me to make some gates and some work for him. Well, I've been a sculptor for 32 years. A lot of my work is tropical, so I came up with the design. Like was mentioned, Morningside, which was the sun rising, one of the criteria was that it be a picket fence, so I made the pickets in the direction of the sunrise. And a lot of my work is tropical, the area is very tropical. I was born in Miami. Tropical is part of what do, and even behind you, I see right there on the City ofMiami, a palm tree. So when I designed this, I said this is fitting. This is fitting with the house, with the original door. It's fitting with South Florida. I -- you know, I just think it's no reason why anybody could say, design -wise, that this does not work. Chair Sanchez: And you're in favor of it? Mr. Brandell: I'm in favor of it. Chair Sanchez: Yeah. All right. Anyone else? All right. Commissioner, it comes back to you. Commissioner Sarnoff Lucia, your client has a beautiful fence, but he did fail to pull a proper permit. He withdrew his permit. What would he like to do in restitution of that? Ms. Dougherty: We would like to condition this permit on the purchase and installation of 6 four -inch DBH (Diameter at Breast Height) by 16feet Florida, one, to be planted within four blocks of 59th Street and North Bayshore Drive, and purchase and installation -- and also purchase and installation agreement to include watering for a 12-month period. City ofMiami Page 224 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Didl hear 18? Ms. Dougherty: Yes, sir. Commissioner Sarnoff Okay. Chair Sanchez: All right. Commissioner Sarnoff I move to sustain the appeal -- Is that the right way to say it? Chair Sanchez: No. Commissioner Sarnoff I move to permit this after -the -fact fence. Chair Sanchez: To approve the appeal. Commissioner Sarnoff Correct. Well, that is sustaining -- Chair Sanchez: To approve the appeal with conditions. Commissioner Sarnoff -- the appeal. I mean -- Chair Sanchez: That's your legal -- it's your legal language. Maria J. Chiaro (Assistant City Attorney): It is -- Chair Sanchez: We're not attorneys up here. Ms. Chiaro: The reason -- Commissioner Sarnoff He's the appellant, isn't he? Ms. Chiaro: Yes, he is. Andl understand that "sustain the appeal" is the legal terminology. Commissioner Sarnoff Okay. Ms. Chiaro: Our resolutions are drafted, however -- Commissioner Sarnoff To approve. Ms. Chiaro: -- in terms of -- yes, approve -- Commissioner Sarnoff Gotcha. Ms. Chiaro: -- of granting the appeal. Commissioner Sarnoff I move to approve the permit -- Chair Sanchez: And -- Commissioner Sarnoff -- and then -- Ms. Chiaro: Grant the appeal. City ofMiami Page 225 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff -- grant the appeal. Chair Sanchez: All right. Commissioner Regalado: Second. Chair Sanchez: Second by Commissioner Regalado. Any discussion? Madam Clerk? Ms. Thompson: City Attorney, it says here to deny or grant with conditions, affirming or reversing the conditions. So are we including that in the --? Ms. Chiaro: Let me read from the document in the package so that your motion is absolutely correct. Chair Sanchez: It is correct. Isn't it to approve the --? Ms. Chiaro: I'm going to read it. Commissioner Sarnoff He's appealing the denial, correct? Ms. Chiaro: That's correct. Commissioner Sarnoff Oh, I hate when I get that look by you. I obviously interrupted something important. Ms. Chiaro: I did not -- you should not -- Commissioner Sarnoff You gave me that look, and that's -- Ms. Chiaro: I understand. Commissioner Sarnoff -- the third time today you've given me that look. Ms. Chiaro: I did not infer nor should you imply any meaning from that look Commissioner Sarnoff Oh, trust me, any male up here knows that look. Chair Sanchez: The Planning Department has recommended to deny the appeal, but the motion that was proffered is to approve the appeal. Ms. Chiaro: It is a resolution granting the appeal and reversing the decision of the Historic Preservation Board -- Chair Sanchez: All right, so it's just been cleared up. Ms. Chiaro: -- with -- Chair Sanchez: All right. So there's a motion and a second. Ms. Chiaro: With conditions. Chair Sanchez: Yeah. I just think that the owner didn't follow procedures and he stepped on a couple of toes, I guess. But listen, that's the price you pay when you live in a historical designated area. And the reason why it's a historical designated area is because it's a beautiful neighborhood and you need to protect that neighborhood. But this makes that neighborhood City ofMiami Page 226 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 even prettier with those gates. So let me just say that, although it has to come in front of us and we've had to deal with trees and gates today, it is something that you should be proud -- and know the residents in that area will be very proud of. So -- all right. It's a resolution. Applause. Chair Sanchez: All in favor, say "aye." The Commission (Collectively): Aye. Chair Sanchez: Anyone in opposition, having the same right, say "nay." All right. And no more surprises, Commissioner Sarnoff. I mean, what are you going to bring up now? Commissioner Sarnoff I'm done. Chair Sanchez: All right. Ms. Dougherty: Thank you very much. Commissioner Sarnoff I'm going home. Chair Sanchez: Okay. Adios. Have a good one. Unidentified Speaker: Thank you very, very much. Chair Sanchez: You're quite welcome. Commissioner Sarnoff You're welcome. Chair Sanchez: Sorry to waste your time, but it's a pleasure to see you. Okay. Unidentified Speaker: Thank you so much. Chair Sanchez: You're quite welcome. City ofMiami Page 227 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 MAYOR AND COMMISSIONER'S ITEMS CITYWIDE HONORABLE MAYOR MANUEL A. DIAZ DISTRICT 1 COMMISSIONER ANGEL GONZALEZ DISTRICT 2 COMMISSIONER MARC DAVID SARNOFF DISTRICT 3 CHAIR JOE SANCHEZ DISTRICT 4 COMMISSIONER TOMAS REGALADO D4.1 08-00036 DISCUSSION ITEM DISCUSSION CONCERNING THE POWERS OF THE CIVILIAN INVESTIGATIVE PANEL AND THE POSSIBLE LITIGATION BY THE CITY OF MIAMI. 08-00036 Memo.pdf DISCUSSED Chair Sanchez: All right. Commissioner Regalado, you're recognized for your district blue page. Commissioner Regalado: Thank you very much, Mr. Chairman, and thank you to members -- chairperson, members, and the attorney of the Civilian Investigative Panel for being here. I know that this is not a public hearing, but this is an issue that needs to be discussed because it have been in the media. And if we do not discuss it and take some action, things could get complicated, and the least we can do is to try to avoid another embarrassment for the City of Miami. And -- I mean, this morning, the City Commission approved resources to define a word. Julie O. Bru (Deputy City Attorney): Commissioner, I think we've lost a quorum. Commissioner Regalado: And what does that mean? Well, I can be speaking. Priscilla A. Thompson (City Clerk): Yes. Commissioner Regalado: I mean, only quorum for voting. You know, we're very flexible here in the City ofMiami. We can stretch the Code and the Charter in many ways, so I will be talking. The Civilian Investigative Panel was created by the voters of the City ofMiami. It's the only board in the City ofMiami that was created by the voters. I remember 76percent of the people that went to the polls. Actually, I requested the numbers from the Elections Department of Miami -Dade County, and it was even in all the communities; Afro-American, Cuban, Latin, Haitian American, Anglo. The vote was even. There was no community that voted more, no City ofMiami Page 228 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 community that voted less. Why was that? Well, because Elian Gonzalez, because of the police shooting, because of the need to have an agency that represented the people to look after the Police Department. And then I remember very well the process. This time the City Commission did not appointed [sic] the members. This time the City Commission did not choose by district, we're going to appoint this, and we're going to -- it was through a process, through a selection committee, and people came out -- people that wanted to serve came out and were appoint -- were confirmed by the City Commission. The panel was created on February of 2002. And sometimes people, meaning us, or media, would question why the panel was not so proactive. And the panel hired their own counsel and their investigators and start listening to cases, and little by little, they been doing what they were empowered to do, until somebody files a complaint about the chief of police, a complaint that has been in the media. And then is when things get complicated. I cannot understand what is going on here. I'm not an attorney. I am not a person that is very intelligent, but I cannot understand here. I wrote a letter to the City Attorney when I saw in the media that the chief of police has refused to test fy. And then he explained that the CIP (Civilian Investigative Panel), number one, did not have the authority to investigate the chief of police because the police had appointment -- one appointment to the board and the board report to the chief of police, and it's incongruent, I think the word he said, that a panel would investigate a person that they have to report to and that have power of appointment. I wrote back to the City Attorney because I want to clarify, andl ask him, can you tell me if the secretary ofjustice of the United State [sic] cannot investigate the White House or the president if the president appoints the secretary of justice and the secretary ofjustice report to the president, and yet, many secretary of justice have investigated presidents of the United States. Richard Nixon, Ronald Reagan, Iran -Contra, you know, Bill Clinton, you name it; CIA (Central Intelligence Agency) (UNINTET,TIGIBLE), so that's that. The City Commission appoints -- here it says appoint; I said confirm the members because we don't pick and choose, and the chief of police appoints one person. The other thing that I don't understand is the lack of information that we're having. Number one, the City Manager, who has the sole authority to discipline the chief of police, said that he was going to wait for the Ethics Committee investigation. In the letter that the City Attorney sends to the CIP said that the City Attorney needed time to finish his investigation, meaning the City Attorney -- the City Manager investigation. I didn't know that the City Manager was investigating the chief. My understanding is that the Ethics Committee had either finalized or rejected the proposal that the chief has offered. My information is that a court of law ordered the chief to testify and that the City counseled the chief not to show up or not to testify. This is just history. This is -- whether the City Manager decides to discipline or not discipline the chief that's his power and his problem and his legacy. My issue here is that it's important to define the powers of the CIP because if we don't, might as well, you know, tell the voters that, you know, we didn't feel that the panel work, and we just disengaged this panel from the City government. My concern also is that if we do not clarify that this is a real investigative committee, the people ofMiami will lose confidence and will not go to them because this panel can investigate some police officer, not all police officer. My concern is that, reading the letter from the City Attorney, we are about to engage in a legal case against the Civilian Investigative Panel. So the reason I place this in the blue page is because I just want to, number one, understand if we are going to court against this panel created by the people of Miami, and if we do, that we, as the legislative body, should support with resources and funds, this panel created by the voters because, after all, we report to the voters of the City ofMiami, not to the Manager, not to the Mayor, not to anyone, but only the voters, and we need to support the voters ofMiami and offer the CIP the budget -- the resources to fight the City in their battle to define their powers. So having said that, I would like to ask the City Attorney, number one -- Mr. City Attorney, thank you very much -- are we taking the CIP to court? Jorge L. Fernandez (City Attorney): No, we're not. And let me reply to the series of comments and questions that you have made and clam the record. We have never advised the chief of police. We do not represent the chief of police. We have made it very clear to the chief of police that we do not represent him or have given him any advice, and that is a statement that needs to be stated on the record. With regard to going to court, there is history of the Civilian City ofMiami Page 229 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Investigative Panel taking the City to court. And if you all remember, when they challenged the City on a question or a dispute of public records, we went all the way to the ThirdDCA (District Court of Appeals) to vindicate the City's position and the City's right against an erroneous interpretation that the Civilian Investigative Panel had made, costing them and costing the City amounts of money, but that's neither here nor there. The fact is that they are an entity that can sue and be sued, and the fact is that the legal opinion that we have given to the City Manager, which Ms. Bru would explain in greater detail, is based in what believe is the consideration and balancing that this Commission needs to make, with regard to the powers and rights of the Civilian Investigative Panel -- a group that we honor, a group that we respect, a group that we've recognized has a valid function -- and the powers and right [sic] that the Charter vest on your City Manager, a person on whom the Charter and this Commission has entrusted with running the City and being responsible for all departments, all department directors, and the whole functioning of the City. In the balancing of those two competing interests, whether there is questionable language -- and Ms. Bru will get into the issues where there may be an issue of interpretation, if you will -- we have responded to the City's [sic] Manager request that we address this issue, and that's the legal opinion we have given him. Ms. Bru would be very willing to explain to you the analogy that you have made between local government and the federal government and the respective rights of the president and the Justice Department and this Commission and your City Attorney and the CIP, but we will also address the substantive issues Commissioner Regalado: But excuse me, Mr. City Attorney, the analogy wasn't about federal government or local government. The analogy was that you mentioned in your response to me that it's incongruent that a person that -- that a panel that reports to a person and that that person have power of appointment can investigate that person. And used the City Attorney -- I mean, the Justice Department as an example of appointment and reporting, as I could use the attorney general of the state of Florida reporting to the voters of the state of Florida who appoint him, and the voters have the right to recall the attorney general of the state of Florida. So the analogy is not about one government or not. My -- see, my problem here is that everything here in this City is about interpretation. You know, the DDA (Downtown Development Authority) millage is about interpretation. The powers of the CIP is about interpretation. The global agreement is about interpretation. The County refusal to give us the three lots is about interpretation. And one interpret something and the other interpret the other thing, but meanwhile, the people that created the panel and voted for the panel, thinking that they were empowering a group of residents who, by the way, we do not appoint, again, they are not getting their money worth. The taxpayers ofMiami are not being serve because a bona fide group, like the police union, went and file a complain [sic] against the chief of police, and the statutes are very clear. I have read them; I have asked attorneys to read it to me. And the only entity that cannot investigate a chief of police is the Internal Affairs Department of that same department. The -- CIP has the power to investigate any sworn police officer, and the chief is a sworn police office [sic]. And mind you, this is not about Chief Timoney or his Lexus or his stats or whatever. This is about the will of the voters because it's very convenient to take to the voters several questions. We took to the voters the 20 percent surcharge. Oh, we like this. We took to the voters the bond issue. Oh, we like this. We took to the voters good government, salaries of the elected officials. Oh, we like this. We took to the voters in CIP. Oh, we don't like this, so we pick and choose what we want and what we don't want. And you know, we just can't have it both ways. If we accept what the voters said on the parking surcharge and good government, on the bond issue, on the elections, we just need to accept what the voters -- and to my knowledge, the voters were not inform. Oh, you can vote for the CIP, but remember, the CIP cannot investigate the chief or for that matter, the deputy chief or the assistant chief or so and so. So you're saying the City is not taking them to court, so where do we stand? Mr. Fernandez: Mr. Chairman, Commissioners, again, no referendum ever -- andl have been at this for over 26 years and been involved in lots of referendum [sic]. No referendum ever put to the public can ever address every single nuance and anticipate ever potential issue and problem City ofMiami Page 230 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 that would arise. And so to the extent that, at the very beginning the comments that I made with regard to interpretation, you took that and you ran with that. And clearly, what I'm giving you is my interpretation, no less than the attorneys that you have consulted have given you their interpretation. Because at the end of the day, Mr. Mays has his interpretation, and I have mine. And you know, that's why we keep alive a judiciary -- Commissioner Regalado: And by the way, I have not talk to Mr. Mays. Mr. Fernandez: But you should. He's an excellent scholar and a very good lawyer that I'm sure holds -- Commissioner Regalado: No. The only thing I've done is I -- I have asked people to look through the Florida Statutes and what are the powers of the different CIPs throughout the state of Florida and the United States. That's all I done. Mr. Fernandez: Correct. And -- well, if anybody speaks to you with more authority than I do, then I have failed you because I should be speaking to you rather authoritatively also. But with regard to the recency, the fact that the CIP was a matter of referendum in much more recent history than the referendum that the voters ofMiami adopted when they adopted your form of government and installed or instituted your office of city manager, I don't believe that recency trumps or is the determiner. And all that you're considering, all that we have addressed here is the relative powers of your City Manager versus the relative powers -- and they have a lot of powers, which we respect and we acknowledge. I believe that I, representing this Commission -- and you have entrusted to me the representation of your City Manager and the Charter for me to interpret. We have done, in my office, the very best job we can in interpreting that. It is an interpretation, yes, sir. And so, Ms. Bru can deal with much greater facts. She can handle the law, perhaps, more articulately than I can. I have just put the issue in perspective. But before I sit down, let me tell you this. You're also very correct in one thing you've said, Commissioner Regalado. At the end of the day, it's the decision of this Board, because I do not work for the City Manager. I do not work for the Mayor. I do not work for the chief of police. I only work for this Board. And if this Board instructs me, notwithstanding my stated legal opinion to you that we are not to get ourselves involved in the situation that has arisen -- as you all well know what the situation is -- then I am duty bound to follow your directives. But please understand that it won't be the first and it won't be the last time that you have chosen to disagree with me, andl accept that, andl don't take it personally, but you need to know that I'm speaking to you competently, capably, and forthrightly. And we believe that, in this case, the Civilian Investigative Panel -- Commissioner Regalado: I agree with you. I agree with you. I agree with you a hundred percent that we should not get involved. Mr. Fernandez: Oh, no, no. But I'm not say -- I'm not making that the -- Commissioner Regalado: You just say -- Mr. Fernandez: -- the recommendation. Commissioner Regalado: -- we should not get involved. I agree with you. We should not get involve. You did got involve because you sent a letter saying you cannot or you should defer any court order mandate for the chief until the Manager finishes his investigation. My whole thing here was that we should not get involve; that, you know, they have the power. And by the way, I have not heard one word that the CIP wants to fire or discipline the chief of police. Mr. Fernandez: They can't. City ofMiami Page 231 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: Nor that we or I or somebody out there wants to fire or discipline the chief of police. No one. I don't know where that came from, left field or something because no one had ever said, on the CIP level or, I guess, the City Commission level, that the chief should be fire or should be discipline. That's up to the City Manager. The whole thing here is only about the need for the CIP to know that they have the right to investigate the chief as they have the right to investigate any sworn police officer, period. End of conversation. That's all. Mr. Fernandez: Well -- Commissioner Regalado: And if the City were to challenge their interpretation of the statutes that they can investigate and want to take them to court, then we, as a legislative body, should support this panel, created by the people ofMiami, with resources to fight the City. After all, we do that all the time. I mean, we spend hundreds of thousands of dollar [sic] lobbying Tallahassee not to reduce taxes, and you know, we have spent -- now we will spend money trying to define what is a word -- I mean, we're trying to define if four is the same as five, so it's about mathematics, Commissioner Sarnoff. But anyway, my whole point is that we should not get involved And you said you don't represent the chief. My point is, why are we using the City Attorney and the City Manager to stop the CIP from listening to the chief of police? That's the only question that want to ask. Why does the City Manager and does the City Attorney are getting involved to stop the chief of police from going before a panel created by the people of Miami? Is it the chief -- is it because the chief of police is better than any other cop in the City ofMiami, or smarter, or you know, whatever? So that's the whole thing. That's the whole thing. Why should we get involved? Why does the City Manager is trying to stop the chief of police from testifying before the panel of residents? Why does the City Attorney is using his knowledge, his stationary to stop the City ofMiami police chief to testify before the CIP? Maybe the -- maybe somebody can answer that. Maybe Manager -- Mr. Manager can respond to that. I just want to understand. Mr. Fernandez: Well, I believe I've already answered your question, sir, andl don't know what else I can say beyond that which I have said. Ms. Bru has a much fuller legal analysis that she can engage you in, if you're interested, and perhaps -- Commissioner Regalado: No. Mr. Fernandez: -- the City Manager can too. Commissioner Regalado: Again, you have not ask [sic] my question, Mr. City Attorney, because you talk about the powers of the City Manager, which we all recognize. I mean, nobody here is challenging the powers of the City Manager. No one. Now does the City Manager has sole authority on every employee of the City, except the elected officials, correct? Except you, except the City Clerk, the Auditor General. So let's say that tomorrow a -- there is a complaint against a police officer. The City Manager can say that they cannot investigate that police officer because it's under his jurisdiction 'cause the City Manager can fire a police officer, and he has done in the past, or any other -- so I just want to understand here, Mr. City Manager, what is going on, or where are we moving from because, I mean, we keep -- let me tell you. We keep poking in the eye a sleeping tiger. You know, we -- the voters ofMiami, you know, we can -- we keep messing with them, you know, and it's not healthy. And so, I just want to understand where are we now. Mr. Fernandez: Well, I can tell you that I would give an opinion -- Pedro G. Hernandez (City Manager): Well -- Mr. Fernandez: -- to the City Manager that he cannot interfere with the CIP when it comes to the investigation against police officers because they have conducted literally hundreds, if not City ofMiami Page 232 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 thousands by now, of those, and that's clearly established that that's the purpose. And were the City Manager to attempt to interfere with the powers of the CIP, I would be the first one that would give him an opinion that would read as strongly as the one I gave him reading the other way. But the City Manager should speak for himself, and then Ms. Bru. Mr. Hernandez: Thank you, Mr. Attorney. Commissioners, Commissioner Regalado, the main reason that Chief Timoney is not -- or has not appeared before the CIP is because he has his own attorney who has advised him not to, period. I don't have all the legalese that the City Attorney has offered. His words are more eloquent, but that's the bottom line. Simple language. He is not represented by the City Attorney. The City Attorney told him that he could not represent him. He went out, he got his own personal attorney. His own personal attorney told him don't. Do not appear. My understanding is that the CIP appeared before a judge to get an opinion as to whether the chief should testify before the CIP. That judge said, yes, he should. It appears that the attorney for Chief Timoney wants to have the same opportunity before a judge, and that's their decision -making process. As to the other -- Commissioner Regalado: But you see, Mr. Manager -- Mr. Hernandez: That's -- Commissioner Regalado: Okay. That's -- Mr. Hernandez: However -- Commissioner Regalado: -- a response that makes sense. However, I got confused when I started reading things, when I read the letter that the City Attorney sent to the CIP, plus the request for legal representation that your office sent. What got me a little curious and concerned was that on the request for representation, it was said that you needed time, or the City Manager needed time, to finish his investigation. Nothing about the attorney for Chief Timoney said he shouldn't appear. I'm writing in behalf of the chief of police, which is my employee, and he's been advised by counsel that he cannot go before the CIP. The request for legal representation was -- andl remember the words -- until the Manager finishes his investigation. So the response that you give now makes sense, but what really I didn't understand is the part about your investigation, the part about -- well, you said that you weren't investigating the chief that you waited -- that you wanted to wait for the Ethics Committee [sic] to finish their investigation. That's what you said on the media, if I remember well, several month [sic] ago. And so I am not trying here to put pressure on you or something, but -- to make a decision. But my point was that never that explanation was made public. Oh, the chief has been advised by counsel. Mr. Hernandez: If you -- Commissioner Regalado: It was I'm finishing my investigation. The CIP's interfering with the powers of the City Manager. So this is -- you see, this is what -- when things are not clear, more questions arise than answer, and that was my answer. And trust me, I will come back on the next Commission meeting with the same item, and the next Commission meeting with the same item, andl will keep asking because, as of now, I'm not clear of the whole thing here. Mr. Hernandez: If you allow me to continue. The City Attorney cannot represent the chief of police, but he can represent the City Manager. Obviously, once I learned the situation that Timoney had an attorney, I talked to the City Attorney. In my opinion, the original intent of the CIP is to investigate police abuse. And normally, that's -- in my humble understanding of this, is that normally that's police abuse against citizens. In this case, there is no official misconduct against citizens. Also, you have the issue that the CIP reports to the chief. In my opinion, the chief may be the only one that could not be, let's say, subpoenaed by the CIP. Every other officer, including the deputy chief could. The Commission on Ethics, I was the one who asked City ofMiami Page 233 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 the Commission of [sic] Ethics to investigate Chief Timoney. I under -- my understanding is that they have a meeting January 31 to consider the latest settlement offer. Once that meeting takes place and a resolution is reached, I'll make a decision reference the discipline of the chief. If that investigation is coming to an end, you would ask yourself, why another investigation? So having those questions in mind, that's when I asked the City Attorney, yes, I would like to check if there is the, let's say, power or the authority in the CIP to proceed with another investigation at this time. Commissioner Regalado: I mean, that investigation that you referred to as the other investigation was borne right here, right there. Andl remember that you said, I don't have a problem with the CIP investigating when the union leader came and stood there and said that -- so it wasn't something that came out in the mail or something. It was done live and in color here in this hall. So I don't know what you're going to do. I don't know whatever, but still, my point is not about Timoney. And if you ask me, it's about interpretation too. Because I can interpret that Chief Timoney abuse the citizens ofMiami by taking a free car that, if a citizens do that, he goes tojail. So that's my interpretation. Or that there are allegations that the stats have been moved around. I'm not a police officer. I'm not a detective. I'm not State attorney. I'm not nothing. I'm just here with the mind of a journalist trying to understand the different ways that this issue has been presentedfrom -- and how it has been changed, how -- and why. And one should ask, why all of the sudden when this thing blows up, the City says okay and the City Manager say okay, I'm going to go to the Ethics Commission, and then I'll discipline. I'll -- probably I won't wait for the investigation. That's were your words on the media. And then -- okay. We're going to wait. And then we have no problem with the CIP investigate it. Now we have a problem with the C [sic] investigate -- what is going on here? What is the mystery around this? You know, we all said transparency is the main thing that we need in government, and we do. Andl can interpret it in a different way than you and other people what the chief did or did not, but that's not my call. But I just want to remind the leaders of this City that we need to respect the people's choice, and the people's choice was to create a panel that could investigate any police officer, not fire, but report to the City Manager, Mr. City Manager, we have not found anything bad, or we have found something bad. That's all. That's all that the people expect. The people do not expect the panel to burn in the stake the chief or any police officer or take him tojail. The people just expect to have a buffer, something that they can go to and see that they have a recourse to see if something wrong is done. So I guess we're going to leave here without knowing what is the real thing here because I -- Ms. Bru: Commissioner Regalado -- Commissioner Regalado: -- still don't understand. Ms. Bru: -- ifI may, because I feel a bit responsible personally for some of this because, initially, there was a complaint that was filed back in September with the Civilian Investigative Panel concerning the incident with the Lexus with the chief. Shortly thereafter, they commenced an investigation. They took jurisdiction of the matter and commenced an investigation, and the chief got subpoenaed and came to us, came to the City Attorney's Office seeking legal counsel. We looked at the situation, and we determined that because the incident did not involve his official conduct and it wasn't anything that he did in pursuance to his official duty, it did not involve a public purpose, that he was not entitled to have an attorney provided by the City of Miami or at the expense of the City ofMiami. This was a purely personal issue on his part, so we declined to give him legal counsel. He went and procured legal counsel on his own, on his dime, and then we, looking at the situation, looked at what was going on. And let me clarify something. The citizens of the City ofMiami approved the creation of a civilian investigative panel, but the language of the referendum and of the Charter is that the Commission shall create the panel. So the panel was created by the Commission. The citizens, as with all Charter provisions, they approved a general concept, a very skeletal description of what this panel was to do, and they designated, you know, what the power was and what the responsibility, which is City ofMiami Page 234 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 really three things. They make recommendations to the chief about policy in the Police Department. They investigate incidents of police misconduct, and then they issue reports. Commissioner Regalado: No. They make recommendation to the chief and the City Manager. Ms. Bru: They make recommendations to the chief and the City Manager. They review the policies, and they conduct independent investigations of police misconduct. But then -- Commissioner Regalado: And they also report annually to the City Commission. Ms. Bru: Well, the Charter designated those three responsibilities, and then it was up to the Commission. And the Charter referendum said the Commission shall create the panel -- Commissioner Regalado: Andl -- Ms. Bru: -- and that's what you did. Commissioner Regalado: -- was here, andl remember -- Ms. Bru: Right. And the Commission -- Commissioner Regalado: -- the hours and hours -- Ms. Bru: Hours of -- Commissioner Regalado: -- that that took. Ms. Bru: -- a lot of thought and deliberation that went into creating the panel. And of course, we have -- Commissioner Regalado: But I remember, too -- Ms. Bru: -- an ordinance -- Commissioner Regalado: -- that it was never ever, ever, ever, ever mentioned that the panel cannot investigate the chief of police. Ever. Ms. Bru: Well, in the ordinance, which we have a duty as your counsel to interpret not just Charter provisions but Code provisions 'cause Code provisions are also lawful. They're presumed to be valid, and we're all presumed to have the responsibility to look at it. If it's plain and unambiguous, we look at it, and this is what it state -- and if you look at the ordinance and the different provisions in the ordinance, it clearly, clearly distinguishes between the chief of police and the sworn police officers that are member [sic] of the department. And you can't just look at something in a vacuum. You have to construe ordinance provisions and Charter provisions all in pari materia. There's different provisions that come into play here. The chief of police is the final decision -maker when it comes to discipline in the Police Department. He is responsible for the control and supervision of his personnel. And this Civilian Investigative Panel has a very important responsibility and role, and that is to assist the chief to be a tool for the chief to be a resource for the chief to assist him in making sure that the investigations that are conducted of the members of the Police Department are done in a matter that -- in a manner that is fair -- Commissioner Regalado: But the panel doesn't work for the chief. Ms. Bru: They don't work for the chief. City ofMiami Page 235 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: And you -- what you're saying -- Ms. Bru: But they assist -- Commissioner Regalado: -- is that the whole -- their whole lives, their whole 24 hours revolves around -- Ms. Bru: No. But a very significant -- Commissioner Regalado: -- helping the chief. Ms. Bru: -- portion of what they're required to do is to assist the chief in the policies that the chief implements, and then it assists the chief in making factual determinations about incidents of police misconduct to which the chief is required to respond. And you know, we're only looking at the ordinance and seeing how it would all work out in the scheme of things. The chief of police makes final determinations about discipline in his department; they are final. They only go to the Manager or the Civil Service Board if an individual police officer appeals it. So here is this panel that is well outfitted with very intelligent and well motivated individuals who are there to assist the chief. If it was meant to have been something that is just wholesale investigatory of the Police Department, we wouldn't have come up with a scheme whereby they make a recommendation about their factual determinations to the chief and then the chief reports back to them. It just doesn't make sense. It doesn't make sense to construe this any other way. You know, it -- Commissioner Regalado: A lot of things doesn't make sense in the City ofMiami. Ms. Bru: It's -- you know, we have looked at this, Commissioner, you know, very, very thoroughly. There isn't -- you know, the chief and the CIP are supposed to work together. They're supposed to cooperate. What the ultimate goal is to make sure that the citizens feel that they shouldn't be intimidated. You know, they don't have to -- if they feel that they can't go to Internal Affairs to lodge a complaint because they feel that they will not be able to get a fair and impartial investigation, they can go to the Civilian Investigative Panel. That's what they're there for, so that they can make sure that any citizen who has had any interaction with the police that has resulted in misconduct can go there and have this resource available to them to conduct an investigation. But ultimately, what does the CIP do at the end of the investigation? They report to the chief and -- Commissioner Regalado: And to the Manager. Ms. Bru: -- to the Manager, but to the chief. And who has to -- Commissioner Regalado: And to the Manager. Ms. Bru: -- within 30 days report back to the CIP? The chief. So it just doesn't make sense. And you know, we have to -- Commissioner Regalado: Well -- Ms. Bru: -- construe laws also with common sense. Commissioner Regalado: -- it doesn't make sense that the Israeli and the Palestinians are -- Ms. Bru: Well -- City ofMiami Page 236 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Regalado: -- at odds, you know. Ms. Bru: We -- Commissioner Regalado: It doesn't make sense that we had Bosnia and the Balkans. It doesn't make sense so many things, but the point here is that what we're trying to say to them is shut up. Just don't insist on just investigating the chief. Get along, you know. Play your role, you know. Be happy. Go to Disney World and -- Mr. Fernandez: No, no. Commissioner Regalado: -- that's the end of the story. Mr. Fernandez: No, no, no. Please, please. I would never -- Commissioner Regalado: It's very simple. Mr. Fernandez: No. I would never do that to people that know and respect as a matter of course. And let me tell you -- Commissioner Regalado: What, the Disney World part? No. Mr. Fernandez: No, no. But let me tell you. But I think the same thing -- that same coin has another face, andl think the same argument could be made. I hope that, you know, the -- we are not being told, you know, likewise, to go to Disney World, but you know, Ms. Bru, in using the word "assist, "I don't think that she meant that we expect the CIP not to be critical, not to challenge -- because they have been critical and they have challenged the police chief. A definition that assist means work together. Andl have yet to know any entity, any unity, be it the family unit, be it the husband -wife, be it the friendship, be it whatever, be it the Commissioners, that working together do not disagree and have different interpretation on different issues. Here -- this is the power of your City Manager given to him by the voters. These are the powers of the CIP given to them by the same voters. I don't know the percentage by which the Charter passed that established the City Manager form of government. I know by which percentage theirs passed, but irrespective of percentage, these are powers that, in our opinion, are conflicting and Commissioner Regalado: Sixty-eight percent. Mr. Fernandez: Perfect. And what about -- Commissioner Regalado: Because, remember, the form of government of the City ofMiami was change in 1997 -- Mr. Fernandez: Correct. Commissioner Regalado: -- of executive mayor -- I mean, 1998 -- and manager. So it passed at that time. Mr. Fernandez: The powers of the Manager remain relatively intact with just appointment and confirmation and a few minor details. But Commissioner, please understand -- let me come back to the last point I made. The last point I've made is that we're here -- we are your attorneys. You know, I hate to say this to the City Manager. We're not the attorneys for the City Manager, but for the fact that he represents you and you have him sitting in that chair. He has asked a valid question. We have answered it. We believe that our response, while it is an interpretation, it is a valid interpretation, and we would only do that which you instruct us to do. Do we intervene in City ofMiami Page 237 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 this process or we don't? That's the bottom line. You can say, Mr. City Attorney, thank you for the legal opinion. Do not intervene. Let it be the chiefs problem, and let the power issue that the Manager has raised -- you know, don't deal with it. We -- we're not concerned about the Manager's power. We're only concerned about the CIP powers. Commissioner Regalado: You were the one that said, Mr. City Attorney -- Mr. Fernandez: Yes. Commissioner Regalado: -- that we shouldn't get involved. Mr. Fernandez: I never said that, sir. Do not -- Commissioner Regalado: Yes, you did. Mr. Fernandez: Please -- oh, please, listen. Commissioner Regalado: Yes, you did. Mr. Fernandez: I -- no, no, no, no, no. Commissioner Regalado: I have a memory for -- Mr. Fernandez: IfI said that -- Commissioner Regalado: -- quotes, you know. But anyway -- Mr. Fernandez: -- I'm here to correct myself. I think am relatively articulate, andl would not be saying that and have issued the legal opinion that I have issued and had studied the matter. I do have a recommendation, and make no mistake, my recommendation is that this Commission should authorize us to represent the City Manager, as we have stated in our position. But I submit myself to the will of this Board, andl would do whatever you deem appropriate. That is the bottom line and the position. Commissioner Sarnoff Well, we're not going to vote because it's a blue page item. But let me just say one thing, and I'd like to quote who I think is a great scholar, Shelby Highsmith -- Judge Shelby Highsmith. And he would say, what a tempest in a teapot. Because you have a stipulated set of facts. You know what happened, and yet, nobody is putting any teeth or reading any law and applying those facts to what happened. And the longer, Mr. City Manager, you allow this to go on, the longer you're going to have Commissioner Regalado up here singing his song. And we're going to waste a lot of time and a lot of effort of I think, this Board over esoteric legal issues that will be interpreted maybe favorably, maybe unfavorably. But the bottom line is, this - - you know, I was interested to hear Julie Bru say he didn't act in his official capacity. Andl was curious what that really meant, andl didn't want to jump in, 'cause I'd like to end this evening, but I feel like jumping in with two feet now. You know, at what point if a Commissioner took a car because he is a Commissioner -- well, he didn't really violate -- he didn't do it in return for a vote, theoretically, so I guess that's not his official capacity, but isn't the receipt of the gift in the capacity in which you are, whether it's chief of police, City Commissioner, City Manager -- if you receive that gift -- and the law requires us to disclose these gifts -- isn't it in your official capacity? Ms. Bru: Commissioner, no. He did not -- the use of the Lexus by Chief Timoney, as I have established by the undisputed facts that have already been part of the record of the Commission on Ethics investigation, which, by the way, indicates that there are no factual disputes, which makes me wonder what it is that the CIP's going to investigate 'cause there are no factual City ofMiami Page 238 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 disputes 'cause it's all undisputed -- anyway, establish that the Lexus was given to him as part of just the fact that he had a friend; nothing to do with his official capacity, and furthermore, they have established -- the Commission on Ethic [sic] has established that there was no quid pro quo, so there wasn't anything that he was asked to do in his official capacity. That's why we said we can't represent you. This is nothing to do with your -- Commissioner Sarnoff So his only -- Ms. Bru: -- office. Commissioner Sarnoff -- failure, as an elect -- as an official of the City, was the disclosure of it. Ms. Bru: That's the only thing that he has failed to do, and that is, pursuant to the County Code of Ethics, if you receive a gift and it's not from one of those exempt categories, including your family, so forth and so on, you -- and if it's over a hundred dollars, you have to disclose it. Commissioner Sarnoff Okay. I -- then if that's the established fact, Mr. City Manager, I don't know why you don't put this thing to bed. Chair Sanchez: Yeah. Commissioner Sarnoff I really don't. Because I think this is like -- Chair Sanchez: That's it. Commissioner Sarnoff -- a scab you just keep picking at, and you're going to let Commissioner Regalado pick at this and pick at this and pick at this. If the facts are established and those are the agreed facts -- andl don't know that they are, but I'll trust Julie to tell me it is -- then meter out discipline or don't discipline him, but put it behind us. You know, if you think it's an offense that dictates discipline -- I mean, I've gone on the record what thought about it. He failed to disclose. You know, I never thought there was a quid pro quo, but he failed to disclose, and that's the public trust, and the public trust was violated. Maybe not egregiously, but it was violated. And I think the more this stays out there, the longer you allow this to linger, it's like a pus pocket. It just picks up a little more, and then we relieve it. It picks up a little more -- Mr. Hernandez: Commissioner -- Commissioner Sarnoff -- and I know you're waiting for something on January 31, and for the life of me, in the words of Shelby Highsmith, I don't know what you're waiting for. Somebody's going to apply the law to the facts. Mr. Hernandez: Irrespective of whether I take -- make a decision tonight or tomorrow, that will not force Timoney to appear before the CIP because that's a matter that is out of my control -- Commissioner Sarnoff Well, actually -- Mr. Hernandez: -- at this point. Commissioner Sarnoff -- you're kind of arguing against yourself right there, so I wouldn't -- Mr. Hernandez: Well -- Commissioner Sarnoff -- it -- 'cause you're saying it is in your control. Mr. Hernandez: It's not. I'm saying it's not because if he has a private attorney and that City ofMiami Page 239 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 attorney's the one that is advising him not to appear, whether I mete out the discipline today or tomorrow, it won't matter, reference the CIP. I think the discussion here has been very healthy. I think it's good that we have this exchange of ideas or thoughts. The Attorney said that he was not taking this matter to court because, in essence, he needs your authorization to do so, andl don't want that to happen either because I think that I'm more of a consensus -type individual, andl respect the CIP, andl hate to be even discussing this disagreement. Personally, my goal is to cure the situation with the CIP. And I'll deal with the Timoney issue within the next week, and I hope that he can get the proper advice from his attorney. Mr. Fernandez: Mr. -- Commissioner Sarnoff, just -- again, Ms. Bru's trying to be very succinct, and I'll try to do the same. Many reasons went into the decision as why we would not represent the chief. She amplified on one, butl can tell you that there were several. And one of them, from my perch, is that he may take action against the chief which in the pecking order, it is very clear to everyone that my highest allegiance is to you, and then after you, to him, after him, to the department director. That's the only way that it makes sense for a local government attorney to be able to represent so many competing interests. Like in this case, you know, I don't represent the CIP, but I feel very close to them in philosophy and in mission and what they do and what -- you asked me to do for your Manager. And so, therefore, there're other higher issues besides the issue of officialdom and all the other technical things that Julie explored that I, as City Attorney, could not ethically be representing -- providing legal representation to someone that, who knows -- I don't know what he's going to decide, but that if he decides something adverse to the chief I would then be in a pickle of a situation. Commissioner Sarnoff Well, I mean, I read your opinion, which I assumed Julie wrote a lot of it. I mean, I read the opinion. You could have come out one way or the other, to be honest with you. You could have -- and it's your perspective. If you're Republican, you have a perspective. If you're a Democrat, you have another perspective. If you're a strict constructionist, you have one perspective. If you're an extrapolator, you have another perspective. It's that type of issue. There's really no -- it's the way you address the ball, or so to speak, as if you're up at bat. Mr. Fernandez: And please acknowledge that I have said that from the very beginning. Commissioner Sarnoff I think you have andl -- Mr. Fernandez: Okay. Commissioner Sarnoff -- think you can come down either way on this issue. I just don't know why the issue's still here. And -- Commissioner Regalado: And that was my whole question. My whole question is, I don't know why the issue is here, andl don't know why we injected in this -- Chair Sanchez: All right. Commissioner Regalado: -- investigation. So Mr. Chairman, thank you very much. Chair Sanchez: Okay. Commissioner Regalado: I want to thank the members of the panel who are here, andl know this is not a public hearing, but I do hope that this conversation, like the Manager said, was healthy. I'm not trying to send a message or anything, but just for the record, I will put the item again on the next Commission meeting, as a reminder, so we understand what is going on. Thank you. DISTRICT 5 City ofMiami Page 240 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 VICE CHAIR MICHELLE SPENCE-JONES City ofMiami Page 241 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 NON -AGENDA ITEMS NA.1 08-00104 DISCUSSION ITEM DISCUSSION REGARDING THE UNTIMELY DEATH OF FORMER CITY ATTORNEY A. QUINN JONES. DISCUSSED Chair Sanchez: Before we go on with the agenda, I have sad news for all who knew Quinn Jones, III, who was a former City Attorney, who's passed away. We do want to send our condolences to his families [sic] and friends. The City will be preparing a proclamation of condolence to be presented to his family at the next Commission meeting. He was an individual who, I believe, played a very important role in the City and, certainly, credit should be given to someone who was a public servant for so many years, so we, once again, express our deepest condolence to his family. NA.2 08-00105 DISCUSSION ITEM CHAIR SANCHEZ RECOGNIZED THE ATTENDANCE OF DISTRICT 13 COUNTY COMMISSIONER NATACHA SEIJAS AT TODAY'S MEETING. DISCUSSED Chair Sanchez: Also, before we move on, want to recognize the County Commissioner, who is here with us today. Natacha Seijas, it's always a pleasure to have you here. NA.3 08-00106 DISCUSSION ITEM DISCUSSION REGARDING THE CANCELLATION OF THE EXECUTIVE SESSION SCHEDULED FOR TODAY, THURSDAY, JANUARY 24, 2008, AT 1:30 P.M. DISCUSSED Chair Sanchez: All right. Jorge L. Fernandez (City Attorney): Mr. Chairman? Chair Sanchez: Yes, sir, Mr. City Attorney. Mr. Fernandez: Would you like to announce now that the shade meeting that was otherwise scheduled for this afternoon needs to be canceled? The indispensable party, the attorney that's handling the case, has -- cannot make it; has a personal emergency and is unable to attend, so we would need to schedule that at the appropriate time for a time certain, and we can handle that at a later part in the meeting. Chair Sanchez: Okay, so you'll advise when we'll reschedule the shade meeting? Mr. Fernandez: Yes. Chair Sanchez: For the record, the shade meeting that was scheduled today and properly advertised has been canceled. NA.4 08-00062 RESOLUTION Office of the City A RESOLUTION OF THE MIAMI CITY COMMISSION AUTHORIZING THE Attorney CITY ATTORNEY TO RETAIN THE LAW FIRMS OF LYONS AND SMITH, P.A., GRAY ROBINSON, P.A., SQUIRE SANDERS AND DEMPSEY, City ofMiami Page 242 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 AKERMAN SENTERFITT AND TWO OTHER FIRMS YET TO BE DETERMINED, TO PROVIDE SPECIAL COUNSEL SERVICES TO THE CITY OF MIAMI ("CITY") ON AN AS -NEEDED BASIS IN CONNECTION WITH THE VARIOUS AGREEMENTS AND PROJECTS CONTEMPLATED UNDER THE INTERLOCAL AGREEMENT BETWEEN THE CITY, MIAMI-DADE COUNTY, SOUTHEAST OVERTOWN PARK WEST COMMUNITY REDEVELOPMENT AGENCY ("CRA") AND OMNI CRA; SAID FIRMS TO BE COMPENSATED IN AN AMOUNT TO BE NEGOTIATED BY THE CITY ATTORNEY AND REQUIRING THE CITY ATTORNEY TO PROVIDE MONTHLY REPORTS TO THE CITY COMMISSION OF ALL FEES AND COSTS ASSOCIATED WITH THE ENGAGEMENT OF SPECIAL COUNSEL AS AUTHORIZED HEREIN; WITH FUNDS ALLOCATED FROM NON -DEPARTMENTAL ACCOUNT CODE NO. 00001.980000.531010.0000.00000. 08-00062-Legisl ati on. pdf 08-00062-Submittal-Memo. pdf Motion by Chair Sanchez, seconded by Commissioner Sarnoff, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 2 - Commissioner Sarnoff and Sanchez Noes: 1 - Commissioner Regalado Absent: 2 - Commissioner Gonzalez and Spence -Jones R-08-0056 Chair Sanchez: All right. I think the proper -- Mr. City Attorney, before we adjourn, is there anything you want to elaborate? Jorge L. Fernandez (City Attorney): Yes. We distributed on Friday, on time for you to consider, a memo and a resolution in which I am seeking your authorization to retain outside counsel to assist the City Attorney's Office with regard to many of the issues that have arisen out of the global agreement. The memo is self-explanatory, and the resolution identifies the source of funding and the projects in which we need to retain outside counsel for the very obvious reason that it -- the timeframe -- Commissioner Regalado: The Manager said that that wasn't in the agenda. Mr. Fernandez: Oh, no, no, no. I distributed -- of course, it isn't on the agenda, but we met the rules in the Code that if by Friday you got an item -- I don't know what the Manager said because he didn't say it to me. Commissioner Regalado: But I asked the Manager about this, and he said it wasn't on the agenda; it was not going to be discussed. I would like to defer this because this is not -- I don't even understand this item. I know that the four -- Mr. Fernandez: Well -- Commissioner Regalado: -- firms and Ackerman and all that and whatever, but it wasn't in the agenda. Mr. Fernandez: This item is properly in front of you. It was not on the agenda, and it is, again, up to the City Commission to whatever you want to do, but it's clearly something that I, as your attorney, am cautioning you. Without the assistance of these outside counsel, the City's ability to proceed with the vote that you took with regard to implementing the global agreement will not be City ofMiami Page 243 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 successful. You should also know that a lawsuit has already been filed, which that heaps additional work which we were not staffed, if you will, when we did the staffing back in May, June, to be able to meet this $3 billion in projects and the like. So responsibly, I need to come to you and tell you -- and you know how much I hate to ask for outside counsel -- Chair Sanchez: Counsel -- Mr. Fernandez: -- but when we do, I do -- Chair Sanchez: Mr. City -- Mr. Fernandez: -- responsibly. Chair Sanchez: -- Attorney, do you need a vote today? Mr. Fernandez: Yes, I do. Chair Sanchez: So move. Commissioner Sarnoff Second. Commissioner Regalado: Okay. We have a motion. Okay. Is it your opinion that three is unanimity? Mr. Fernandez: Definitely. Commissioner Sarnoff Three -- Commissioner Regalado: Is it your opinion that -- Mr. Fernandez: Well, no, no. Three is -- Commissioner Regalado: -- two -- Mr. Fernandez: -- quorum, and two of you carry the day, and that's what we have consistently said when you are a three -- Commissioner Regalado: Okay, so -- Mr. Fernandez: -- member Commission. Commissioner Regalado: -- don't even vote. Mr. Fernandez: No, no. I need a vote. Commissioner Regalado: Get your attorneys. Mr. Fernandez: It's -- Commissioner Regalado: All in favor, say -- Chair Sanchez: Aye. Commissioner Regalado: -- "aye." City ofMiami Page 244 Printed on 2/19/2008 City Commission Meeting Minutes January 24, 2008 Commissioner Sarnoff Aye. Commissioner Regalado: One "no." Chair Sanchez: Okay. Mr. Fernandez: Thank you -- Chair Sanchez: All right. Motion to -- Mr. Fernandez: -- Mr. Chairman. Chair Sanchez: -- adjourn is always accepted. All in favor, say "aye." Commissioner Sarnoff Aye. Chair Sanchez: Thank you. City ofMiami Page 245 Printed on 2/19/2008