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HomeMy WebLinkAboutCity Attorney Documents11-,V1 It January 17, 2007 Ms. Susan E. Trench, Esq. Goldstein, Tanen & Trench, .P. A. Two South Biscayne Blvd. One Biscayne Tower, Suite 3700 Miami, Florida 33131 Facsimile: (305) 374-7632 RE: Lucia.Dougherty a/a/o Laurence Eisenberg v. COM, et al. Case No.: 05-409 AP 5101 Biscayne Boulevard Dear Ms. Trench, As suggested by your enclosed correspondence ofJanuary 11, 2007, we think that this is a viable way to proceed regarding this matter. Accordingly, we are asking that our office of Hearing Boards please schedule this matter before the Zoning Board and the City Commission. This case falls under the "Morningside" ruling and the findings of fact under §1305, as amended in 2004, need to be made by the City. RAFAEL SUAREZ-RIVAS Assistant City Attorney Enclosures as stated. RSR/aa cc: Maria J. Chiaro, Esq. — including copy of the Mandate and Amended Opinion of July 14, 2006 Anel X. Rodriguez including copy of the Mandate and Amended Opinion of July 14, 2006 Teresita Fernandez -- without attachment Michael Sastre, Esq. — without attachment Ana Gelabert-Sanchez — without attachment {:Jff-[C£ OF THE ,c CITY Y ATTORNEY1q44 S. ?; €d Avenue, Suit rz MIarni, r o, ,da 33! 3O T. FROM CIRCUIT COURT APPELLATE DIVISION ELEVENTH JUDICIAL CIRCUIT MIAMI-DADE COUNTY, FLORIDA 05-409 AP LUCIA DOUGHERTY a/a/0 Laurence Eisenberg PETITIONER vs. CITY OF MIAMI, FLORIDA, MORNINCSIDE CIVIC ASSOCIATION INC., Rod Alonso, Ron Stebbins, Scott Crawford, and Elvis Cruz RESPONDENTS This cause having been brought to this Court by appeal, and after due consideration the court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this COURT attached hereto and incorporated as part of this order, and with Ore rules of procedure and laws of the STATE OF FLORIDA. Lower Tribunal Case NumberIs): R040764 WITNESS the Honorable Jerald Bagley, Administrative Judge of the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit of Florida and the seal of the said Circuit Court at Miami, August 09, 2006. HARVEY RUVIN, Clerk of the Circuit Court of the Eleventh Judicial Circuit in and far `D de County. By: COPIES FURNISHED TO: COUNSEL OF RECORD AND ANY PARTY NOT REPRESENTED BY COUNSEL P andate. fol-k.dct NOT FINAL UNTIL TIME EXPIRES TO FILE RE -HEARING MOTION AND, IF FILED, DISPOSED OF LUCIA DOUGHERTY, on behalf of Contract vendee, J, Laurence Eisenberg, Trustee Petitioner, v. CITY OF MIAMI, FLORIDA, a Florida municipal corporation, MORN[NGSIDE CIVIC ASSOCIATION, INC., a Florida corporation, ROD ALONSO, RON STEBBINS, SCOI"I CRAWFORD and ELVIS CRUZ, Respondents. IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA APPELLATE CASE NO. 05-409 AP LOWER CASE NO. R040764 Amended opinion filed this An appeal from the City of Miami Commission. , 2006. Susan Trench, Esq., for the Petitioner. Michael A. Sastre, Esq., for the Respondents. Jorge L. Fernandez, Esq., Office of the City Attorney, for the City of Miami, Horida. Before FERNANDEZ, SCHWARTZ, and PEREYRA-SHUMINER, JJ. 1 1 I N. N1:)l: Z. fudge Having thoroughly revie wed the pleadings and papers in this case, the r .ling of the City of Miami Commission should be reversed and remanded. Lucia A. Dougherty, is the Petitioner and the zoning applicant on behalf of the record title owner, Chetbro. Ltd. Morningside Development LLLC- is the project developer. The subject property is located at 5101 Biscayne Boulevard in Miami, Florida. The proposed development is regulated by Section 609 of the City of Miami Zoning Code, SD-9 Biscayne Boulevard North Overlay District Regulations. In accordance with the requirements of the SD-9 Regulations, the Petitioner applied for a .Class II Special Peiwit The proposed development would lie a mixed -use project, consisting of residential units with retail space on the ground floor. On November 20, 2003, the Petitioner's application was referred to the City of Miami Zoning Department for review of the Class II Special Peiunit. On April 29, 2004, the first amendment to the SD-9 Regulations was adopted imposing a ninety-five (95) foot height restriction on construction for new residential projects located in the district. This amendment to Zoning Ordinance 11000 became effective thirty days after adoption. On July 21, 2004, the City of Miami Zoning Department issued a final decision approving the Class II Special Peiuiit for the proposed development subject to conditions. The conditions required the Petitioner to revise its plans and incorporate design modifications recommended by the City of Miami Planning and Zoning Department. A day later, on July 22, 2004, the Commission passed on its first reading the second amendment to the SD-9 Regulations, mandating a twenty-five (25) foot height limitation on rear setback structures, such as garages abutting a 2 residential zoned area. This specific height restrictionapplied to properties over 150 feet in deptl as of April 29, 2004. On August 23, 2004, the Petitioner filed its completed application, which included additional height modifications in compliance with the first amendment. The second amendment was adopted on its second and final reading held on September 27, 2004. On October 27, 2004, the Petitioner was granted the Class II Special Permit_ The Respondent, Morningside Civic Association appealed the issuance of the permit to the City of Miami Zoning Board. On December 13, 2004, the Zoning Board affirmed the issuance of the special permit. Thereafter, Respondent, Morningside Civic Association appealed the decision of the Zoning Board to the City of Miami Commission (hereinafter "Commission."). On September 23, 2005, the Commission convened a hearing on the subject appeal. At this hearing, the Commission heard testimony constituting new evidence which was not presented to the Zoning Board. Without making specific written findings, the Commission issued a general statement that "the Class II Special permit does not meet the applicable requirements of Zoning Ordinance No. 11000, as amended." As such, the Commission reversed the decision of the Zoning Board. Based on this ruling, the Petitioner filed its petition for writ of certiorari requesting that the appellate court quash the decision of the Commission. As a preliminary matter, the Court addresses the issue of standing raised by the Respondent. Pursuant to Section 2005 of the Miami Zoning Ordinance "an appeal may be taken by any person or persons, jointly or severally, aggrieved by any decision of the City Commission." Similarly, Section 163.3215, Fla. Stat. (2004) sets forth a liberalized standing requirement to "allow n ad verscly affected third party to maintain an action." Panne v. Cdy of Mia i, 20°5 v L 3054601 (Ha, 3rd DC:A 2005). Case law precedent clearly establishes that an adversely affected party iDeludes the "owner, developer, or applicant for development order." Id. This Court finds that the Petitioner, as applicant, possesses the requisite standing to assert this claim pending before the Court. Further, the Court finds that the record title owner to the subject property remains unchanged from the zoning application originally filed. Florida courts have established the standards for review of local agency action on the first -tier, circuit court level. On appeal, the circuit court must determine: (1) whether procedural due process is accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Broward County v. G. B. V. International. Ltd., 787 So. 2d 838 (Fla. 2001), Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). In the instant case, the Commission did not make specific findings of fact. Florida case law does not require specific findings of fact provided that the ruling is supported by competent substantial evidence. Bell South Mobility, Inc. v. Miami -Dade County, 153 F. Supp. 2d 1345 (Fla. USDC So. Dist. 2001), Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993). However, the City of Miami Zoning Code imposes certain standards. Section 1305 of the City of Miami Zoning Code expressly provides that: City agents, agencies, or boards charged with decisions concerning special permits shall make, or cause to be made, written findings and determinations concerning such of the following matters as are applicable in the case, shall reflect such considerations and standards specifically in the record... 4 Based on Section 1305, the City Commission was mandated to include in their ruling written, findings which specifically set forth the cons (i ;rations and standards that are support ;d by substantial competent evidence. The City Comnmissiz n failed to comply with this requirement, basing its ruling on a general statement. ritical reason for requiring an administrative agency to state their conclusions and orders with specificity is to facilitate judicial review and bolster decisions. City of Winter Park v. Metropolitan Planning Organization for the Orlando Urban Area, 765 So. 2d 797 (Fla. lst DCA 2000). The City is bound by the procedural requirements imposed by the code and cannot renege on its promise to its citizens to uphold the code. Gulf & Eastern Development Corporation v. City of Fort Lauderdale, 354 So. 2d 57 (Fla, 1978). Failure of an agency to adhere to its own regulations constitutes a departure from the essential requirements of the law. Rosa Hotel Developers, Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 600b (Fla. l5th Cir. Ct. 2003). As such, the ruling of the City Commission fails to observe the essential requirements of the law, the second prong of first tier appellate review. A second issue in the case at bar concerns the admission of new evidence at the hearing before the City Commission. The new evidence considered by the City Commission was not presented to the Zoning Board. The traditional scope of appellate review limits consideration of matters to materials available to the lower court or tribunal. Fla. R. App. P. 9.190(c). Conducting a de novo hearing exceeds the authority of appellate review. G. B. V. International , Ltd., 787 So. 2d at 846. Section 1201 of the City of Miami Zoning Ordinance provides that: The City Commission shall have only the following duties: (4) Reviewing, 5 upon request, decisions of the Zoning Hoard -when it serves in an appellate capacity with respect to decisions of ..,the director of planning. building and zoning, (Emphasis added) The usage of the word "only- limits the scope of "review" in an appellate capacity. By comparison, Section 1303 of the City of Miami Zoning Ordinance, expressly provides that "new materials may be provided by the Zoning Board where such materials are pertinent to the determination of the appeal_" This express provision empowers the Zoning Board to receive new materials. There is no similar provision for the City Commission to receive new evidence. Accordingly, the City Commission was limited to review of the record received from the Zoning Board. The nature of inquiry narrows as the case proceeds up the judicial ladder. City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982). By conducting its own de novo assessment, the City Commission usurped the authority of the Zoning Board. G. B. V. International Ltd., 787 So. 2d at 846. As such, by reversing the Zoning Board's issuance of the Special Permit, the City Commission failed to follow the essential requirements of the law. Based on the foregoing procedural errors, this matter is reversed and remanded for further proceedings consistent with this opinion and with controlling case law set forth in Morningside Civic Association v. City of Miami Commission, 917 So. 2d 293 (Fla. 3d DCA 2005). COPIES Fi14ED ... COUNSEL OF RECORD AND TO ANY PARTY NOTREPRESENTE0,, BY COUNSEL 6 IN THE DISTRICT COURT OF +dal PEAT OF -TLORILLa R DISTRICT U TERM. A.J. 2006 DECEMBER 1, 200 MORNINGSIDE CIVIC ASSOCIATION, INC. ET AL., Appellant(s)/Petitioner(5), vs. LUCIA DOUGHERTY, ETC., Appellee(s /Respondent(s). CASE NO.. 3D06-2009 LOWER TRIBUNAL NO. 05--409 AP AMENDED ORDER Respondent's motion to strike City of Miami's notice of adoption of appellant's brief is granted, and the City of Miami's notice of adoption of appellant's brief s hereby stricken. Following review of the petition for writ of certiorari and the response and reply thereto, is hereby denied. CHEF GERSTEN and� Lam, ��.rz�,:c, concur. cc: Michael A. Sastre Susan E. Trench Hon, Lawrence A. Schwartz ag is ordered that said peL.iwiori and SCHWARTZ, Senior Judge, Rafael E. Suarez -Rivas Hon. Tvan E. Fernandez Hon. C . Perevra- Shuminer IN TH7 D_STRIC1 COURT OF _ E OFFLORIDA THIRD DISTRICT JULY TERM, A.D. 2006 NOrJENa"R. 30, 2006 MORNINGS DE CIVIC ASSOCIATION, INC. ET AL., Pppe1iant (s) %Petit_oner (s) , vs, LUC.A DOUGHERTY, ETC., Ap peilee (s) /Respondent (s) . CAST NO.; 3D06-2009 LOWER TRTBUNA'L NO, 05-409 AP Follow ng review of the petition for writ of certiorari and the response and reply thereto, it is ordered that said petition is hereby denied. GERSTEN and FLETCT ER, JJ. , and SCHLARTZ, Senior Judge, concur. cc: Michael A. Sastre Rafael E. Suarez -Rivas Susan E. Trench Hon. Ivan F. Fernandez Hon. Lawrence A. Schwartz Hon. C. Rereyra-Shut'iner ag