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HomeMy WebLinkAboutSubmittal-Correspondence-Susan E. TrenchGOLDSTEIN, TANEN 8c TRENCH, P.A. Law Offices Writer's e-mail: strench(a�gttpa.com February 27, 2008 HAND DELIVERED Maria J, Chiaro, Esquire Rafael Suarez -Rivas, Esquire Office of the City Attomey 444 S.W. 2' Avenue, Suite 945 Miami, F133133 Re: 5101 Biscayne Blvd. Class II Special Permit Dear Maria and Rafael: One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 SUBMITTED INTO THE PUBLIC RECORD FOR lTEM?iu ON /8JhE . Enclosed please find copies of letters delivered to the Commissioners today outlining the applicant's position in this matter, together with one set of the attached exhibits. These are being delivered in agreement with Mr. Sastre, who also intends to make a similar delivery. Both Mr. Sastre and I did attempt to contact you about this procedure, but were unsuccessful in doing so. If there is any problem in providing the Commission with this information prior to tomorrow's hearing, please advise. Thank you. Enclosures cc: Michael Sastre, Esq. M:\5101 Biscayne\Letters\Chiaro.002.wpd Sincerely, Susan E. Trench C �' E- TIC 6 1Cvl GOLDSTEIN, TANEN & TRENCH, P.A. Law Offices Writer's e-mail: strenchQgttoa.com February 27, 2008 HAND DELIVERED Commissioner Angel Gonzalez Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS II SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Gonzalez: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101"). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class II Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board' s determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate— that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step ' In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Gonzalez February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5101, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442, 444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232, 236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4th DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4th DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Momingside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this juncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3' DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3rd DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing — particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5th DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting_Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. 1st DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4th DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 F1a.L. Weekly Supp. 344a (Fla.11th Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3rd DCA 1999). The above -cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Gonzalez February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. M:\5101 Biscayne \Letters\L-Commissioner Gonzalez .wpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk EXHIBIT "A" Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk MANDATE FROM CIRCUIT COURT APPELLATE DIVISION ELEVENTH JUDICIAL CIRCUIT MIAMI-DADE COUNTY, FLORIDA 05-409 AP LUCIA DOUGHERTY a/a/0 Laurence Eisenberg PETITIONER vs. 110.6 AUG 0 9 2006 �. e AR‘v `� " RvVIN CITY OF MIAMI, FLORIDA, MORNINGSIDE 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 the rules of procedure and laws of the STATE OF FLORIDA. Lower Tribunal Case Numberls): 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 for • r, spade County. c«er By: 45-Yirk De C COPIES FURNISHED TO: COUNSEL OF RECORD AND ANY PARTY NOT REPRESENTED BY COUNSEL Mandate.form.dot Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk 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 v_ IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA Petitioner, AP-P-BLLATE-CASE NO. 05-409 AP CITY OF MIAMI, FLORIDA, a Florida municipal corporation, MORNINGSIDE CIVIC ASSOCIATION, INC., a Florida corporation, ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD and ELVIS CRUZ, Respondents. Amended opinion filed this LOWER CASE NO. R040764 , 2006. An appeal from the City of Miami Commission. Susan Trench, Esq., for the Petitioner. NIichael A. Sastre, Esq., for the Respondents. Jorge L. Fernandez, Esq., Office of the City Attorney, for the City of Miami, Florida. Before FERNANDEZ, SCHWARTZ, and PEREYRA-SHUMINER, JJ. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk FERNANDEZ, Judge. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Having thoroughly reviewed the pleadings and papers in this case, the ruling 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. Momingside Development LLC 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 Perriiit. The proposed development would be a mixed-ue 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 Permit. 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 Permit 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 restriction applied to properties over 150 feet in depth 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, Momingside 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, Momingside 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 Submitted into the public record in connection with item PZ.11 on 02-28-08 3 Priscilla A. Thompson City Clerk standing requirement to "allow an adversely affected third party to maintain an action." Payne v. City of Miami, 2005 WL 3054601 (Fla. 3rd DCA 2005). Case law precedent clearly establishes that an adversely affected party includes 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 supportc.: -oy 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... Submitted into the public record in connection with item PZ.11 on 02-28-08 4 Priscilla A. Thompson City Clerk Based on Section 1305, the City Commission was mandated to include in their ruling written findings which specifically set forth the considerations and standards that are supported by substantial competent evidence. The City Commission failed to comply with this requirement, basing its ruling on a general statement. The critical 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. 1st 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. 15th 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, Submitted into the public record in connection with item PZ.11 on 02-28-08 5 Priscilla A. Thompson City Clerk upon request, decisions of the Zoning Board 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 1305 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 Morning_side Civic Association v. City of Miami Commission, 917 So. 2d 293 (Fla. 3d DCA 2005). COPIES PUNISHED TO COUNSEL OF RECORD AND TO ANY PARTY NOrREPRESENVED EY COUNSEL- ----- 6 Submitted into the public record in connection with item PZ.11 on 02`08 Priscilla A. Thompson City Clerk EXHIBIT "B" Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk MIAMI ZONING BOARD HEARING Monday, October 4, 20�4 6:00 p.m. City Hall 3500 Pan American Drive Miami, Florida Reported By: Kathy Schwab, Court Reporter Notary Public, State of Florida Esquire Deposition Services, LLC N. Miami Office Job # Phone - 800-224-1268 305-651-0706 ESQUIRE DEPOSITION SERVICES (305) 651-0706 Page 3 1 Thereupon: 2 The following proceedings were had: 3 CHAIRWOMAN HERNANDEZ: Item Number 4 5, please. 5 THE CLERK: Item Number 5. 6 Approximately 5101 Biscayne Boulevard. This 7 is an appeal by Andrew Dickman, Esquire on 8 behalf of the Morningside Civic Association, 9 Inc. and Rod Alonso, Ron Stebbins, Scott 10 Crawford and Elvis Cruz of the Class II 11 Special Permit Application No. 03-0309, 12 approved with conditions by the Planning 13 Director on July 21, 2004 for new 14 construction. 15 CHAIRWOMAN HERNANDEZ: Thank you. 16 MR. DICKMAN: Good evening, Ma'am 17 Chair, members of the Board. Andrew Dickman 18 with law offices at 9111 Park Drive in Miami 19 Shores, Florida. 20 For the record, I'd also like you to 21 note that I have a Masters degree in urban 22 and regional planning and I have held an 23 American Institute of Certified Planning 24 recognition for almost -- going on 15 years, 25 as well as a practicing attorney. 1 APPEARANCES: 2 Chairwoman: Ileane Hernandez 3 Zoning Board Members: Miguel Gabela 4 Joseph Ganguzza, Esq. Charles Garavaglia 5 Juvenal Pine Allen Shulman 6 Angel Urquiola Georges William 7 Lucia Dougherty - Attorney for the Applicants 8 Bernard Zyscovich - Attorney for the Project Andrew Dickman - Attorney for Rod Alonso. Elvis 9 Cruz & Momingside Assoc. 10 Lourdes Slayzak - Asst Director, Planning & Zoning 11 12 13 George Wysong - Zoning Board Attorney Mr. Fernandez - City Attorney Lionel Toledo - Zoning Administrator 14 15 16 17 18 19 20 21 Submitted into the public 23 record in connection with 24 :5 item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 I represent the Morningside Civic Association. They have numerous residents who live in and adjacent to the proposed development. Quite succinctly, our position is that this development violates the Miami Neighborhood Comprehensive Plan, which, in several places -- and I will put these into the record -- in several areas, the land use -- MS. DOUGHERTY: Madam Chair, could I interrupt for a second? I would like to proffer a Motion To Dismiss on three out of the four grounds that have been alleged by Mr. Dickman, and I think that this is one of them. And I think it would be appropriate for me to at least make that motion prior to any testimony given on the comprehensive plan. CHAIRWOMAN HERNANDEZ: I will defer to our attorney. MR. WYSONG: Thank you. I think that's appropriate. There's an appeal and she's moving to dismiss the appeal, so it would be in order to hear the Motion To Dismiss first. And then if those 1 (Pages 1 to 4) Esquire Deposition Services (305) 371-2713 Page 5 1 motions are denied or reserved, then 2 Mr. Dickman can go into detail. 3 CHAIRWOMAN HERNANDEZ: Thank you 4 Lucia. 5 MS. DOUGHERTY: Lucia Dougherty with 6 offices at 1221 Brickell Avenue. I'm here 7 on behalf of the owner and applicant. With 8 me here today is Jerry Cohen and Larry 9 Eisenberg, who are the applicants. 10 There are four grounds that have been 11 alleged. And if you pull out Mr. Dickman's 12 appeal, he has -- the first ground is that 13 it violates the Comprehensive Plan. Second 14 ground is that it violates 907.3.2. Third 15 ground is that it violates the standards of 16 1305. And the fourth ground is that they 17 violate due process in that they didn't 18 apply SD-9. 19 On the first ground, it violates the 20 Comp. Plan, this is not something even the 21 Planning Department can consider when 22 issuing a Class II plan. In other words, 23 the Comp. Plan and the zoning ordinance must 24 be consistent. 25 But we have not asked for a change in 1 the last one is that they also say that we 2 have not applied the correct zoning 3 district -- or the correct standards of the 4 SD-9. 5 Again, I have the same motion in 6 connection with those two. These aren't 7 things that you can consider because they 8 aren't things that the Planning Department 9 can consider when they make their 10 recommendation. In fact, those issues were 11 determined by the Zoning Administrator in 12 November of 2003, when, you'll see -- right 13 after Mr. Dickman's appeal, you'll see the 14 Class II permit zoning referral, and it's 15 signed by the Zoning Administrator 11-20-03, 16 that decision, where it says that the Zoning 17 Division of the Zoning and Planning 18 Department found this to be in compiance 19 with all applicable zoning requirements and 20 requires a Class II. 21 So that the Zoning Administrator 22 determined 907 was applicable. It 23 determined what law regarding SD-9 was 24 applicable and no one appealed that 25 decision. Notwithstanding the fact that all Page 7 Page 6 1 the Comp. Plan. And this would be the same 2 thing as somebody trying to attack the Comp. 3 Plan when you issue a building permit. It 4 just cannot be done. It's not something 5 that the Planning Department can look at 6 when they are issuing its Class II's because 7 they have standards, and those are 1305. 8 And therefore, it's not something that this 9 Board can consider, as well. 10 CHAIRWOMAN HERNANDEZ: Hold on a 11 minute. 12 Lourdes, would you comment on that? Go 13 item by item. 14 MS. SLAYZAK: Lucia's correct. This 15 application did not seek an amendment to the 16 Comp. Plan. It is a special permit. 17 The criteria that we use for special 18 permit review is not the criteria for the 19 Comp. Plan amendment and they weren't 20 seeking a zoning change or Comp. Plan 21 amendment. It's different criteria. 22 CHAIRWOMAN HERNANDEZ: Okay. Lucia 23 proceed, please. 24 MS. DOUGHERTY: The second standard is, they say that we violated 907.3.2. And 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 abutting notices -- all abutting residences were given notice of our appeal -- I mean, our Class II permit application. So, therefore, based on two grounds. One is that it's untimely because they didn't appeal that decision when they made those decisions. And secondly, it's not something that's part of the standards for the Class II permit. You can't make those -- those standards aren't in your Class II permit application standards, of which I will pass out a copy when we get to our hearing. Based on that, I'd like the Board to consider dismissing the first ground, the second ground, not the third one, because that's the standards. That's the 1305, but the fourth ground, as well. CHAIRWOMAN HERNANDEZ: Thank you; Lourdes. Would you please comment on that? MS. SLAYZAK: We have zoning here that can comment on the zoning issues. But what I do want to, I guess, tell the Board is that when you're reviewing a Class II U E E rr Esquire Deposition Services (305) 371-2713 2 (Pages 5 to 8) Page 9 1 Special Permit, you're reviewing it in an appellate way. You're here on appeal, and 3 what you can do is approve the appeal, deny 4 the appeal, or approve with modification. 5 That's within the jurisdiction of this Board 6 to do. 7 But you must use the same standards 8 that were used in the original Class II 9 Special Permit. You can't broaden the 10 standa ds of the criteria. 11 CHAIRWOMAN HERNANDEZ: In other 12 words, Lourdes, 907.3.2 what it was when 13 this came through and not what it became or 14 is becoming or will become. 15 MS. SLAYZAK: Correct. 16 CHAIRWOMAN HERNANDEZ: Thank you 17 MR. DICKMAN: Madam Chair, I would 18 like an opportunity -- 19 CHAIRWOMAN HERNANDEZ: Let me fini 20 with Lourdes. 21 Is Zoning coming up? 22 MS. SLAYZAK: We have Zoning here, 23 if you have any questions with the 24 applicability. 25 This application was filed prior to the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 sh9 20 21 22 23 24 25 Page 11 proper criteria. CHAIRWOMAN HERNANDEZ: Okay. MR. TOLEDO: Lionel Toledo (phonetic), Zoning Administrator. When the application came through, it was checked for all standards and everything was fine. CHAIRWOMAN HERNANDEZ: Everything, :! it was recommended for approval under the standards that were current at the time? MR. TOLEDO: Yes. CHAIRWOMAN HERNANDEZ: Not the ones that were or will become or in the process of. MR. DICKMAN: Madam Chair, procedurally, I'd like to point out, in a court of law -- CHAIRWOMAN HERNANDEZ: Wait a minute. We're not in a court of law here. Let's not even go into a court of law. MR. DICKMAN: Candidly, this is a quasi-judicial matter. CHAIRWOMAN HERNANDEZ: Mr. Wysong, would you like to comment on why we're not a court of law, please. Page 10 1 amendment of SD-9, so it was not renewed 2 under the new SD-9. The new SD-9 was 3 adopted very recently. This application, 4 because it was filed prior to that amendment 5 being passed by the City Commission, was 6 allowed to continue to be reviewed under the 7 applicable SD-9 at the time it was filed. 8 And we have Zoning here that can 9 comment on 907. 10 CHAIRWOMAN HERNANDEZ: Please. 11 MALE VOICE: Excuse me. Could you 12 give me some information on number three? 13 MS. SLAYZAK: Which one was number 14 three? Oh, the 1305, that one? 15 MALE VOICE: 1305, yes. 16 MS. SLAYZAK: 1305 is the criteria 17 and it is the standards that should be used 18 for Class II. And that's when the appellant 19 will go into his reasons why he believes it 20 doesn't meet 1305. But that one -- 21 CHAIRWOMAN HERNANDEZ: Lucia is 22 proposing to dismiss the first one, second 23 one and fourth one, not the third so we 24 don't have to consider the third one. 25 MS. SLAYZAK: The third one is the Page 12 1 MR. WYSONG: Well, actually, you do 2 have to afford Mr. Dickman the fundamentals 3 of due process. And although we're not in a 4 court of law, loose rules of evidence apply, 5 etc. However, a Motion To Dismiss has been 6 heard and now, there should be a response to 7 the Motion To Dismiss before the Board takes 8 any action. 9 MR. DICKMAN: Normally, when an 10 attorney wants to proffer a Motion To 11 Dismiss, they will give notice to the other 12 side that they are going to argue a Motion 13 To Dismiss so that the other side would have 14 an opportunity to prepare and argue those 15 points. My colleague knows this. 16 For the record, I'd like to put that 17 out there, that no notice to dismiss was 18 presented to me whatsoever, That's fine, if 19 she wants to make them. I have no problem 20 with that. I just want to put on the 21 record, in a court of law, she would have 22 been required to give notice. 23 CHAIRWOMAN HERNANDEZ: Okay. Bu 24 we're not in a court of law. 25 Would you please refer to them. 00 0 00 N 3 (Pages 9 to 12) Esquire Deposition Services (305) 371-2713 four, so we 4 then we'll get back to three. 5 MR DICKMAN: Yes, ma'am. 6 Under Florida Law, Chapter 163 -- your 7 planning staff knows this well and 8 hopefully, your attorney does, as well -- 9 all development orders in the State of 10 Florida issued by municipalities are 11 required to comply with your Comp. Plan. 12 I'm sure all of you are familiar with 13 your goals, objectives and policies in your 14 Comp. Plan, and I'm sure all of you -all have 15 been briefed on the weight this Comp. Plan 16 carries with it. That your decisions, staff 17 decisions, all of these decisions, whether 18 they be land development regulations or land 19 use changes or requests for textual changes 20 in the Comp. Plan development orders, i.e., 21 building permits, need to comply with your 22 Comp. Plan. 23 Your Comp. Plan does have provisions in 24 it for protecting adjacent and existing 25 residential neighborhoods. It's throughout Page 13 MR. DICKMAN: Number one? 1 CHAIRWOMAN HERNANDEZ: Item two an & can make a decision on those and 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 Do you want to rule on each item,.one buy one? CHAIRWOMAN HERNANDEZ: Have you concluded with the first item? MR. DICKMAN: On the first item. CHAIRWOMAN HERNANDEZ: Lourdes, could you, please, comment again on the first item? MS. SLAYZAK: Yes. Of course, all development approvals in the city comply with the Comp. Plan. What I said was, or, I guess, maybe I needed to be more clear, when an application does not include an amendment to the Comp. Plan, the criteria, the standards that we measure that application by are very different than when it's a special permit. None of these, the 1305 criteria, the special permit criteria, reflect the -- directly the Comp. Plan. The City of Miami's Comp. Plan was found to be in compliance with our land development regulations, our zoning code. The two must match. They have to be in compliance. So if a request for development approval comes in and a development order is Page 14 1 your future land use element and your 2 housing element, to name two chapters that 3 are in your Comp. Plan. Your own codes say 4 that the appeal can be made of any decision 5 of the Administrator. It does not limit it 6 to things that are just narrowly defined by 7 opposing counsel or what they claim that 8 they had to meet. 9 You, in fact, are required to comply 10 with your Comp. Plan. Under state law, 11 those development orders -- if you issue 12 development orders that are contrary to your 13 goals, objectives and policies -- and I, 14 again -- of course, you're not changing the 15 Comp. Plan. Nobody's alleging a future land 16 use map amendment here. Nobody's alleging a 17 textual change. Of course, that would have 18 a different direction. It wouldn't 19 necessarily come to you. It would go 20 through the Planning Advisory Board and 21 others. 22 Again, your decisions have to comport 23 with your Comp. Plan, your institutional 24 directive of how this City will plan and 5 grow, issue development orders. 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 16 granted and it complies with the zoning code, it is in compliance with our Comp. Plan. The things that Mr. Dickman was saying ab out protecting neighborhoods from encroachment of land uses or incompatible development, those are all the goals, objectives and policies of our Comp. Plan. But if the developer is not seeking to change and he's got his land use and zoning and the development complies with the rules of that land use and zoning, then it is not deemed an incompatible encroachment because he is meeting the letter of the law for 'E zoning, and our zoning is in compliance with o our Comp. Plan. VD So, I don't believe that a Comp. Plan is -- throwing that out as a reason to deny a Class II, when there's no Comp. Plan amendment being sought. It's not part of the criteria, not what's before this Board. You're hearing an appeal of a Class II Special Permit that's got different criteria. CHAIRWOMAN HERNANDEZ: Thank yor 4 (Pages 13 to 16) Esquire Deposition Services (305) 371-2713 Page 17 1 Lourdes. 1 Do any of the Board members have any 2 questions? 3 4 And if they don't, then is anybody 4 5 prepared to make a motion for or against 5 6 dismissal of part one of Item 4 -- no, 5 -- 6 7 I'm sorry. 7 8 MALE VOICE: I move to deny the 8 9 appeal. 9 10 CHAIRWOMAN HERNANDEZ: No. Okay. 10 11 Let me explain a minute. We're not working 11 12 on the whole appeal, itself. On part one, 12 13 Item Number 5. And it's not an appeal. 13 14 Miss Dougherty's proposing to -- 14 15 MALE VOICE: Out of the four 15 16 sections, the one that's proper is 1305, 16 17 correct? So I move -- 17 18 CHAIRWOMAN HERNANDEZ: Yes. 18 19 MALE VOICE: I move to remove the 19 20 first two and the fourth. 20 21 MALE VOICE 2: We haven't heard a 21 22 response on those other two elements. 22 23 CHAIRWOMAN HERNANDEZ: Pardon me?23 24 MALE VOICE 2: From the appellant on 24 25 those other two arguments, so we're only 25 this case, Miss Dougherty's pointing to, you know, the bases that you set forth for the appeal, and I don't think that you're terribly put upon to defend that issue. I would hope that you were prepared for that, so I do not see an inconsistency in the Comp. Plan issue, so I'm going to vote yes in support of the motion -- the vote on the motion. MS. SLAYZAK: You voted yes. Continue, please. THE CLERK: Mr. Pina. MR. PINA: Yes. THE CLERK: Mr. Shulman. MR. SHULMAN: Yes. I understand the argument, Lourdes, you're saying, is that automatically, the zoning has been deemed in compliance with the Comp. Plan. And therefore, if the project is in compliance with zoning, then automatically, at least for legal purposes -- MS. SLAYZAK: For the purposes of this appeal, it is not one of the criteria. MR. SHULMAN: I'll vote yes. Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 considering the first argument, which relates to whether or not there is a basis to appeal, based on an inconsistency. CHAIRWOMAN HERNANDEZ: was trying to explain. Just the part one of Item Number 5. MS. SLAYZAK: You should be considering a motion either to dismiss the first count or not to dismiss. MALE VOICE: I move to dismiss the first count. CHAIRWOMAN HERNANDEZ: Is there a second, please. ANOTHER MALE VOICE: I second. CHAIRWOMAN HERNANDEZ: There's a motion and a second. Ca11 the role, please. THE CLERK: Mr. Garbela. MR. GARBELA: Yes. THE CLERK: Mr. Ganguzza. MR. GANGUZZA: I just want to comment, in response to Mr. Dickman's concern about being caught by surprise. You know, I'm a lawyer, too, and I'd like to have notice of a motion like this. But in Page 18 1 2 3 That's whal I4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 20 CHAIRWOMAN HERNANDEZ: Mr. Urquiola. MR. URQUIOLA: Yes. THE CLERK: Mr. William. MR. WILLIAM: I guess, I for the City more, because I vote yes. THE CLERK: Miss Chair. CHAIRWOMAN HERNANDEZ: Yes. THE CLERK: Motion passes, eight to zero. CHAIRWOMAN HERNANDEZ: Okay. Mr. Dickman, would you, please, address point two. MR. DICKMAN: Let me also state that in Article 18, which is, generally, the criteria that describes what can and cannot be appealed to this Board -- and I'm going to read verbatim. It says, "Appeals to the Board may be taken by any person aggrieved or by any officers, Board or agency of the City affected by," and this is paren 2, "any decision of the Director of the Department of Planning, Building, Zoning, including, but not limited to, decisions involving Class II Special Permits." 4 5 (Pages 17 to 20) Esquire Deposition Services (305) 371-2713 Page 21 1 Nowhere in here does it limit you to 2 just what Class II Permits are required. And let me clarify, as well, that, yes, 4 while zoning -- your zoning code, your land 5 development regulations may have been deemed 6 compatible with your Comp. Plan, it still 7 does not automatically bless your 8 development orders. Therefore, if your 9 development order is found to be contrary to 10 your zoning, it could very well be contrary 11 to your Comp. Plan. You don't -- 12 CHAIRWOMAN HERNANDEZ: Did you go 13 back to one? 14 MR. DICKMAN: No. I'm on two. I'm 15 on two. I'm talking about your zoning code. 16 Your zoning code, your land development 17 regulations. 18 And you are required, under the code, 19 to follow your land development regulations. 20 We have alleged that this project -- 21 CHAIRWOMAN HERNANDEZ: When it's 22 criteria that pertains to this Board. 23 MR. DICKMAN: I'm pointing to -- 24 exactly to the code, Article 18, that says, 25 "any decision, including." It doesn't Page 23 1 decision; therefore, it wouldn't properly be 2 in front of this Board. 3 There are other remedies Mr. Dickman 4 may pursue regarding the Comp. Plan pursuant 5 to the statute, but the Zoning Board was not 6 the appropriate remedy. 7 MS. SLAYZAK: If there had been, 8 let's say, an interpretation of the Comp. 9 Plan, a written interpretation by the 10 Planning Director and that were to be 11 appealed, it would come to this body as an 12 appeal of the interpretation of the Comp. 13 Plan. What's here before you is an appeal 14 of a Class II. It was filed as an appeal of 15 a Class II, not an appeal of a Comp. Plan 16 interpretation of how something should or 17 shouldn't apply to a piece of property. 18 You have to use the same criteria that 19 the Director used in reviewing the Class II. 20 CHAIRWOMAN HERNANDEZ: Would you 21 continue with number two. 22 MR. DICKMAN: The criteria includes 23 reviewing whether it's compatible with the 24 Comp. Plan. I believe even Section 1305 25 says that. Page 22 1 exclude any other decisions. 2 So, we are bringing here, arguments 3 that start with the Connp. Plan and get down 4 to the zoning code. 5 MR. WYSONG: Madam Chair, could I 6 add that Section 1618.06 of Article 18 says, 7 "Hearing Powers of Zoning Board. In 8 exercising authority to review the decision 9 of the administrative official, the Zoning 10 Board shall have all the powers of the 11 officer from whom the appeal is taken and in 12 conformity with the provisions and in 13 this -- in the law of zoning, may reverse or 14 affirm, wholly or in part, or may modify the 15 decision appealed from and may make such 16 decision as ought to be made." 17 That dovetails with Miss Slayzak's 18 comments, that you're sitting in judgment of 19 the decision of the Director of Planning, 20 not any decision, although it says "any 21 decision," you are limited to the facts of 22 this particular case and the applicable 23 laws. And here is something, for example, 24 in the first count of the appeal, the Comp. Plan was never part of the Zoning Director's 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 24 CHAIRWOMAN HERNANDEZ: Mr. Wysong, do you agree? I'm really not going to let this turn into a legal thing. If that's the case, then let's have you, you know, address the attorney and he can rebut it and you can go back and forth, because I don't think that -- MR. DICKMAN: I don't want to be here all night either. CHAIRWOMAN HERNANDEZ: Excuse me. I don't think our attorney, City's attorney or the Department is agreeing with what you're stipulating. MR. DICKMAN: That's okay. CHAIRWOMAN HERNANDEZ: attorney and not head of the department. Neither is anybody here on the Board. I'm sorry. City attorney. MR. DICKMAN: I can offer a solution. Personally, if we could have just put on our case in chief, the developer could have made their motions, we could have heard all of these at one time. Instead, she has I'm not an.24 V ram+ E Esquire Deposition Services (305) 371-2713 6 (Pages 21 to 24) Page 25 1 forced you into hearing each one of these, 2 one at a time, and she could have very easily made these arguments in her rebuttal 4 to our appeal. 5 CHAIRWOMAN HERNANDEZ: Let's stick 6 to part two of 907.3.2, please. 7 MR. DICKMAN: We allege that it's in 8 violation of that, of your zoning code. 9 You're required to follow the zoning code. 10 MS. DOUGHERTY: Not only one of the 11 criteria, it's untimely. That decision was 12 made by the Zoning Administrator in this 13 letter that's in your package in November of 14 2003. And that was not appealed. And just 15 like Mr. Dickman said, you can appeal any 16 decision by the Zoning Administrator, the 17 Planning Department. He did not make that 18 appeal; therefore, it's untimely to -- not 19 only is it not part of the criteria, also 20 untimely. 21 CHAIRWOMAN HERNANDEZ: Okay. 22 Lourdes, would you, please, put anyone who 23 is not familiar with 907.3.2 up to date on 24 907.3.2. 25 MS. SLAYZAK: This is -- I'm just Page 27 1 questions or motions? 2 MALE VOICE: Motion to Dismiss point 3 two. 4 MALE VOICE 2: I have a question. 5 Is the Class II in this particular case -- 6 what does it encumber? What is it allowing 7 them to do? 8 MS. SLAYZAK: The Class II Special 9 Permit is for new construction of a 10 multi -family with some mixed use development 11 on Biscayne Boulevard. It is in the SD-9 12 Special Zoning District. That's why the 13 Class II Special Permit is required, in 14 order to review it against the special 15 requirements of SD-9 and the design 16 considerations built into SD-9. 17 MALE VOICE 2: All that was done? 18 MS. SLAYZAK: It complies with SD-9 19 at the time that it was filed. SD-9 has 20 since been modified, but at the time that it 21 was filed, it complies with SD-9. 22 MALE VOICE 3: Is this on the east 23 side or west side of Biscayne Boulevard? 24 MS. SLAYZAK: It's on the east side 25 of Biscayne Boulevard. Page 26 1 going to give you a quick idea. When a 2 Class II Special Permit is filed with the 3 City of Miami, the very first step in the 4 Class II Special Permit is for the applicant 5 to take their development plans to the 6 Zoning Division and Zoning does a review to 7 make sure that it otherwise complies with 8 zoning and all of the other aspects, 9 setbacks, height, parking requirements, 10 green space, etc. 11 And once Zoning has determined that it 12 meets all of the zoning requirements and all 13 that's left to do is the Class II, where we 14 do the design review, then Zoning will sign 15 off and refer it for the Class II Special 16 Permit. 17 In this case, the Zoning signature, 18 which interpreted compliance with the zoning 19 requirements was done, as Miss Dougherty 20 said, in 2003. That decision of Zoning was 21 not appealed. So, the Class II moved 22 forward, and that is not one of the criteria 23 for the Class II Special Permit. 24 CHAIRWOMAN HERNANDEZ: Thank you 5 Okay. Board members, do you have any 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 28 MALE VOICE 3: This is taking into consideration the water, the ninety feet of bonuses? CHAIRWOMAN HERNANDEZ: Actually, no. This is not on the water and there's no bonuses. MALE VOICE 3: No bonuses. CHAIRWOMAN HERNANDEZ: It's only a Class II. It's not a major use. MALE VOICE 3: There's no variances? CHAIRWOMAN HERNANDEZ: No variances. MALE VOICE 3: Okay. Thank you. CHAIRWOMAN HERNANDEZ: Okay. Mr. Garavaglia. MR. GARAVAGLIA: At the time when you had that application for Class II permit and when you make your consideration, is it still compatible for two, their consideration, since you done June 11, 2003? MS. SLAYZAK: I believe one of the two applications, five and six, are similar in that they are a block apart on Biscayne Boulevard. One of the two does meet -- it does meet the new height requirements of SD-9. The other one does not. But it's 0 U ~ w a 0 7 (Pages 25 w 2.0} CtS Esquire Deposition Services (305) 371-2713 Page 29 1 irrelevant because at the time it was filed, 2 it did comply with SD-9. MR. GARAVAGLIA: What is the 4 thoughts on limitation into this class, that 5 Class II Special Permit? 6 MS. SLAYZAK: As long as it stays on 7 appeal, the new requirements will not kick 8 in. Once the appeal is settled, they have 9 six months to get a building permit. If 10 they do not, then they have to comply with 11 the new SD-9. 12 MR. GARAVAGLIA: Thank you. 13 CHAIRWOMAN HERNANDEZ: Mr. Garb 14 MR. GARBELA: Yes, I would move to 15 dismiss point two and, preferably, point 16 four, because Lourdes just said that it's 17 not applicable to this -- what we're 18 deciding here. So I would move to dismiss 19 point two and point four and concentrate on 20 point three. 21 MALE VOICE: Second. 22 CHAIRWOMAN HERNANDEZ: Motion an 23 second. 24 Call the role, please. 25 MR. WYSONG: Madam Chair, before you e1 1 2 3 4 5 6 7 8 9 10 11 12 a13 14 15 16 17 18 19 20 21 d22 23 24 25 Page 31 MR. WILLIAM: Yes. THE CLERK: Ms. Hernandez. CHAIRWOMAN HERNANDEZ: Yes. THE CLERK: Motion passes unanimously to dismiss part two of the appeal. CHAIRWOMAN HERNANDEZ: Okay. Mr. Dickman. Should I move on to part four? MR. DICKMAN: Part four involves the alleged violation of the Special District overlay 9, which is the intent to allow development but protect the adjacent neighborhood. And we believe that not only is this in violation, but for the record, procedurally, I believe that this is just not the way a Motion To Dismiss should be handled, just for the record. CHAIRWOMAN HERNANDEZ: Thank you.. Lourdes, could you please address point four. I think it's the same thing, SD-9. MS. SLAYZAK: Correct. The SD-9 was in the process of being reviewed and modified when this application was being processed. It was ultimately Page 30 1 dismiss Count four, since the motion 2 includes Count four, I would ask, you 3 know -- as we said, the loose rules of 4 evidence apply here; however, fundamentals 5 of due process should be afforded to 6 Mr. Dickman and he should be, at least, 7 entitled to a response as to why count four 8 should or should not be dismissed. 9 MR. GARBELA: I'm sorry, Mr. Wysong. 10 I forgot that point. So, motion to dismiss 11 point two. 12 CHAIRWOMAN HERNANDEZ: Okay. 13 There's a motion and second. 14 Call the role, please. 15 THE CLERK: Mr. Garbela. 16 MR. GARBELA: Yes. 17 THE CLERK: Mr. Urquiola. 18 MR. URQUIOLA: Yeah. 19 THE CLERK: Mr. Ganguzza. 20 MR. GANGUZZA: Yes. 21 THE CLERK: Mr. Pina. 22 MR. PINA: Yes. 23 THE CLERK: Mr. Shulman. 24 MR. SHULMAN: Yes. THE CLERK: Mr. William. Page 32 1 approved and it does impose some new height 2 limits on development on Biscayne Boulevard 3 and some setback modifications, but this 4 project was already in process and was 5 allowed to continue. 6 Again, once the appeals are all done, 7 they have six months to get their building 8 permit or they will have to redesign the 9 project. 10 CHAIRWOMAN HERNANDEZ: Thank you 11 Board members, any questions or 12 motions? 13 MALE VOICE: Motion to dismiss. 14 CHAIRWOMAN HERNANDEZ: Okay. 15 There's a motion to dismiss part four. Is 16 there a second? 17 MR. URQUIOLA: Second. 18 CHAIRWOMAN HERNANDEZ: There's a 19 motion and second by Mr. Urquiola. 20 Call the role, please. 21 THE CLERK: Mr. Garbela. 22 MR. GARBELA: Yes. 23 THE CLERK: Mr. Urquiola. 24 MR. URQUIOLA: Yes. 25 THE CLERK: Mr. Ganguzza. oo oO N V 0 at 8 (Pages 29 to 32) Esquire Deposition Services (305) 371-2713 Page 33 1 MR. GANGUZZA: Yes. 2 THE CLERK: Mr. Garavaglia. MR. GARAVAGLIA: Yes. 4 THE CLERK: Mr. Pina. 5 MR. PINA: Yes. 6 THE CLERK: Mr. Shulman. 7 MR SHULMAN: Yes. 8 THE CLERK: Mr. William. 9 MR. WILLIAM: Yes. 10 THE CLERK: Miss Hernandez. 11 CHAIRWOMAN HERNANDEZ: Yes. 12 THE CLERK: Motion passes 13 unanimously to dismiss part four of the 14 appeal on Number 5. 15 CHAIRWOMAN HERNANDEZ: Okay. 16 three. 17 MR. DICKMAN: Section 1305.2 is a 18 design criteria recently amended by the City 19 to put more standards in place for not only 20 the administration, but as well as the 21 Board, to make decisions on special permits, 22 including Class II Special Permits. That 23 criteria is lengthy and it is detailed. It 24 requires you to look at a lot of things, 25 including the compatibility with the Comp. Page 35 1 you're not ready, Lucia can address it 2 again. 3 MS. SLAYZAK: Yeah. I think the 4 applicant goes next and then the City. 5 CHAIRWOMAN HERNANDEZ: Okay. 6 MS. DOUGHERTY: Madam Chair, member 7 of the Board, this is a very modest project. 8 It is on the east side of U.S. 1. It is 9 currently where two motels are located. 10 We have not asked for a major use 11 special permit, we have asked for no 12 variances, we have asked for no bonuses. It 13 is a district which currently has two motels 14 on it, but the motels are no longer legal. Par 15 So, if the motels go away, the only thing 16 left that can be put on this property is 17 either residential or office, not even 18 retail. 19 And I say modest, because it used to 20 have an unlimited height. It no longer 21 does. But even in that context, the 22 Planning Department, my client, the 23 architects, all strove to make this the most 24 compatible buildings. I'm actually doing 25 both buildings at the same time because -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 34 Plan. We believe that this project is, quite frankly, quite simply, too big, out of scale, incompatible with the adjacent homes that are directly adjacent to that. Single family homes that, perhaps, at their tallest, are twenty feet. This property, going from Biscayne back, is a very shallow property. It may be a hundred ten feet deep, at its most. They're going to be putting a large development on a very thin piece of property and it will negatively impact the adjacent neighborhood of Momingside. 1305 deals with this squarely and directly. It addresses compatibility and scale, bulk and height and buffering. And I believe this project does not meet that requirement and, therefore, we are appealing it. CHAIRWOMAN HERNANDEZ: Thank you. Lourdes, would you care to address number three. MS. SLAYZAK: Well -- CHAIRWOMAN HERNANDEZ: Well, if Page 36 1 both applications at the same time. 2 And I just want to show you this. 5101 3 Biscayne Boulevard. We originally started 4 out with eighty-five thousand square feet, 5 reduced to sixty thousand feet. We 6 originally had eleven floors, we reduced it 7 down to eight floors. Originally had 89 8 units, down to 63 units. Parking is what's 9 required. The height. We used to have 117 10 feet, now down to 87 feet. So, on 5101, we 11 actually have less height than is permitted 12 in today's code. 13 CHAIRWOMAN HERNANDEZ: Lucia, bear 14 with me one minute. 15 Would you please read item number -- 16 since Lucia is referring to it, Item Number 17 6. 18 MALE VOICE: Number 5. 19 CHAIRWOMAN HERNANDEZ: No. Item 20 Number 6. 21 THE CLERK: Approximately 5225 22 Biscayne Boulevard. It is an appeal by 23 Andrew Dickman, Esquire on behalf of the 24 Morningside Civic Association, Inc. and Rod 25 Alonso, Ron Stebbins, Scott Crawford and 00 O 00 N E a 9 (Pages 33 to 36) Esquire Deposition Services (305) 371-2713 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 37 Elvis Cruz of the Class II Special Permit Application No. 03-0308, approved with conditions by the Planning Director on July 21, 2004 for new construction. CHAIRWOMAN HERNANDEZ: Thank you That way, it's already read into the record. As you refer to it, Lucia, everybody knows what we're talking about. MR. DICKMAN: Madam Chair, if I could make a quick suggestion, and if Counsel agrees. If Counsel's going to make the same argument she made in the last item, we'll agree that everything incorporated from that hearing will go to this one. We'll say the same things, reargue the same things. CHAIRWOMAN HERNANDEZ: If we do that, how do we go about doing that? Do we do it when the time comes? Can we do it now, so we have it fresh in our mind? MR. WYSONG: When the time comes, we should also say the comments from this matter will be revised and extended to the next matter and then you can say to the next matter, and then you can vote. They have to Page 39 1 architects, and it was our client, who 2 addressed the issue of whether or not this 3 was compatible and scaled, and they did that 4 in the context of this application. If you 5 look at -- 6 And I'm going to pass out -- I'm going 7 to have Gloria pass out the standards that 8 apply. 9 CHAIRWOMAN HERNANDEZ: Mr. Dickman, 10 were you aware of these changes? 11 Or are you saying that was made 12 initially, Lucia? 13 MS. DOUGHERTY: I'm sure he's aware 14 of it. r` 15 MR. DICKMAN: Yeah, we're aware of 16 it. 17 MS. DOUGHERTY: So, Gloria 18 Velazquez, my partner, is passing out the 19 standards of 1305. And you'll see in the 20 standards, it says you have to review for -- 21 this is the planning staff and now you -- 22 "review for appropriateness shall be given 23 to potentially adverse effects generally and 24 on adjacent and nearby properties of the 25 area, the neighborhood, the city or the use 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 38 be voted on separately. But, also, I imagine, since you dismissed Counts one, two and four of this appeal, you have to address those Counts separately, if you want to, on the next appeal. CHAIRWOMAN HERNANDEZ: That's what Counsel is suggesting, which we all agree with wholeheartedly. MR. DICKMAN: Put that in the full motion for that item? CHAIRWOMAN HERNANDEZ: Yes, the same. MS. DOUGHERTY: The same discussion for both items. 5225, we had, originally, eighty thousand square feet. We reduced it down to sixty-one. Eleven floors, we reduced to eight and a half floors. Ninety units down to sixty-seven units. The height was, again, 117 feet. It is now 97 feet, which is -- 97 feet, four inches, which is two feet, four inches higher than the code allows you today. So, it was the City staff, it was the Urban Development Review Board, it was our 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 40 or occupancy proposed." And now, here's what I want you to focus on. "Where such potentially adverse effects are found, consideration shall be given to special remedial measures in appropriate -- in particular circumstances of the case, including screening, buffering, landscaping, control of manner of hours of operation, alterations of the design and construction of the buildings, relocation of proposed open space or other such measures as are required, to assure that the potential adverse effects are eliminated or minimized to the maximum extent reasonably feasible." Like I started out saying, we started this application in November of '03. It is now -- has been seven or eight months. We have gotten major use special permits in less time. Consistently, with the UDRB, with the planning staff, with the architect and with our client, is reducing this building to the extent that we believe it is compatible, it is in scale, it is the right and very modest project for this property. 00 00 e N 10 (Pages 37 to 40) Esquire Deposition Services (305) 371-2713 Page 41 1 And I'd like Bernard Zyscovich, who is 2 on your architect, to come forward and describe the project for you. 4 MR. TALBOT: Thank you. 5 What Lucia just described to you, in 6 terms of numbers, these are the effects of 7 the buildings. This is what we initially 8 created for the proposal, related to the 9 building, I think, at 117 feet. This one 10 was what was approved by the Urban Design 11 Review Board. You can see we kept pushing 12 it down. And in the urban redesign, there 13 is another iteration where we brought it 14 down even more in order to work with the 15 best that we could with staff and the 16 Planning Department, to get the building to 17 its current situation. 18 So, you can see there's been a very 19 very significant drop in terms of the 20 building design, the building height, the 21 number of units. Approximately, twenty-five 22 percent of the base FAR -- forget the bonus, 23 forget all the extras that, most of the 24 time, we go through with our client. Just 25 the base FAR, as originally required as a Page 43 1 CHAIRWOMAN HERNANDEZ: That's about 2 to fall. I thought I was getting dizzy. 3 MR. TALBOT: Here's our two blocks. 4 And we have project number one at 60th 5 Street and 58th Street. These are both 6 buildings that are already, more or less, at 7 the same height as this one. As you drive 8 down Biscayne Boulevard, you'll probably see 9 them being renovated. I think one of them 10 is having the skin replaced. 11 And then we went into Morningside and 12 we actually took pictures, put the building 13 in that has been designed, into a photo 14 montage, to help understand what the impact 15 is on each of the streets that are there. 16 These are done in good faith, with the best 17 of our abilities, to show you what the 18 impact is within the neighborhood. 19 And then, finally, these drawings show 20 you the impact of what the building's 21 appearance would be on Biscayne Boulevard. 22 And again, we think that they're very 23 compatible with the existing issues. 24 One of the things that has not been 25 mentioned, because all of the focus has Page 42 1 maximum in the code, has been reduced by 2 twenty-five percent. So the building is, 3 actually, seventy-five percent the size that 4 it would be as a baseline. 5 When the code has finally arrived at 6 its final conclusion, in terms of the 7 height, we have one building at 87 feet, the 8 other building is at 97 feet. The building 9 code has a maximum height of 95 feet. 10 So, in terms of the compatibility, even 11 after all of the iterations that have been 12 going on through what is now almost a year, 13 this building, in very many respects, not 14 all, is, essentially, the type of building 15 height and configuration that would be 16 allowable today, after all of the code work 17 has been accomplished. 18 And as I said, a voluntary reduction in 19 the size and overall scale of the building. 20 We've also gone to the trouble of trying to 21 understand what's happening on Biscayne 22 Boulevard and what are the issues of 23 compatibility. We have some projects up 24 here in the northern edge. Here's Biscayne 3 B oul evard. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really been based upon the property owners on the single family side, Biscayne Boulevard, and all of the planning of the City, is considered to be the major boulevard of the City, the right-of-way is a minimum of 100 feet wide. In every urban design component that I'm aware of related to the major streetscape -- and I'm sure many of you have traveled and have seen the avenues and boulevards of major cities, and 95 foot height for hundred foot right-of-way is not an imposing scale. We believe that the project is very much in scale. I think that there has been a lot of movement in the City to remove unlimited height, to constantly be pushing this down. We understand that the lots, themselves, are quite narrow. But by the same token, there is an element of the boulevard that needs to have some impact and some presence, and it's our belief that this project is very much in scale. So, to summarize, the street has been activated. We've taken the common areas of Page 44 U Esquire Deposition Services (305) 371-2713 11 (Pages 41 to 44) Page 45 the building, because retail is not allowed, 2 and we've taken and applied all of the good elements of urban design. You see 4 activities at the street. You don't see 5 parking at the street level. We brought the 6 size and bulk of the buildings down. 7 And in many respects, it is not only 8 compatible, but even almost in compliance 9 with all of the requirements that would be 10 applicable in the SD-9. 11 With that, I conclude our comments. We 12 have some additional boards, if you want me 13 to go into it. I don't think this is a 14 design session, but we have that 15 information, if you're interested. And 16 thank you very much. 17 CHAIRWOMAN HERNANDEZ: Thank you 18 MR. P1NA: I have a question. I 19 have a question for him. 20 You mentioned, your last sentence, that 21 some of this is compatible with SD-9 22 MR. TALBOT: I didn't say 23 cornpatible. I said compliant. 24 MR. PINA: Compliant. 25 MR. TALBOT: Compliant. There's Page 47 1 building, we've been doing everything that 2 we know how to do to bring it down, bring 3 the scale down and even today, when you 4 talked about the impact, most people are 5 talking about the height of the building. 6 We're within a couple feet of 95 feet. In 7 one case, below 95 feet. 8 So, it's our belief this is a very 9 compatible building and is the type of 10 building that represents a lot of efforts on 11 everybody's part to try and make it as 12 acceptable as possible to the people who 13 believe that it shouldn't be here at all. 14 MR. PINA: Three things. The 15 angle -- 16 MR. TALBOT: The angle -- it's the 17 angle, the setback -- no. The setbacks, we 18 exceed what is there now. Minor use is 19 above, because it's impossible, with such a 20 narrow lot. And I think the podium height. 21 We're a little higher on the podium. 22 MR. SHULMAN: I have two questions, 23 sir. 24 One is, what is your egress and 25 ingress? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 5 Page 46 certain aspects in the SD-9, in the current configuration, that this building does not comply with. We exceed the setbacks. We're right about at the same height. There are certain issues regarding a new 45 degree angle setback that we don't comply with. And what else don't we comply with? CHAIRWOMAN HERNANDEZ: Let me interrupt you for a minute and ask our attorney, in considering this, are we supposed to be using SD-9 and 907.3.2 as it was when this was approved, or as it is now? I just want to have it reiterated, please. MR. WYSONG: You have to look at it, what was approved at the time. CHAIRWOMAN HERNANDEZ: What was place when it was approved, not what it is now. MR. WYSONG: Correct. MR. P1NA: And I understand that. But for my own information. MR. TALBOT: We're disclosing that information. What I'm trying to say is, even though, under the original application, we could have created a much bigger 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 n16 17 18 19 20 21 22 23 24 25 Page 48 MR. TALBOT: It's on the side streets. MR. SHULMAN: You going to have valet parking? MR. TALBOT: I don't think so. MS. DOUGHERTY: And both side streets, in both cases, are closed. In other words, they don't go into the neighborhood. They're closed streets. I forgot to tell you that. MR. SHULMAN: And your parking -- How many units, first of all? MR. TALBOT: We have 63 on 5101 and we have 67 on 5225. MR. SHULMAN: So, which one's the last model you have, between those three? Which is the one you planning to -- MR. TALBOT: The smallest. MR. SHULMAN: The small one. MR. TALBOT: In both cases. MR. SHULMAN: And parking, you going to have parking? MR. TALBOT: Structured parking. You come in on the side street, you go up the ramp and then you have two floors of • .c o E COD 0. 12 (Pages 45 to 48) Esquire Deposition Services (305) 371-2713 Page 49 1 parking and then you have floors of units. 2 MR. SHULMAN: How many parking space you be able -- MR. TALBOT: We have 83 where 5 there's 67, and 89 where there's 63. 6 MR. SHULMAN: You going to have 7 (inaudible) in the first floor and the 8 entertainment stuff. 9 MR. TALBOT: No, no. We're having 10 common area, the gym, the lobby, you know, 11 whatever we're allowed to have that's part 12 of the apartment building, because part of 13 Biscayne Boulevard isn't zoned for -- 14 MS. DOUGHERTY: You're not allowed 15 to have any retail in this part. The only 16 thing you can of is residence and office. 17 That's it. So we don't intend to have 18 offices. This is going to be common areas 19 for the condominium. 20 MR. TALBOT: For the residents are 21 allowed -- we moved it down to the first 22 floor. 23 CHAIRWOMAN HERNANDEZ: Okay. 24 Lourdes, do you have any comments on part 25 three? Continuing saga. Page 51 1 CHAIRWOMAN HERNANDEZ: Thank yo 2 Is there anybody else who would like to 3 speak for or against this item? 4 Mr. Dickman, is there any, like, small 5 little comments you'd like to make? 6 MR. DICKMAN: Yes. 7 In closing, I'd like to just put into 8 the record Exhibit A and Exhibit B, which 9 are things that Counsel's very well aware 10 of, the goals, objectives and policies of 11 the Comp. Plan, as well as the variety of 12 letters we submitted on the appeal. Like to 13 put those into the record just for that. 14 And once again, we'll close just by 15 saying we believe that all of the citations 16 that we referenced in our appeal, including 17 and involving 1305.2, I believe, require 18 you, under that code, as well as SD-9, to 19 take into full consideration the existing 20 residential neighborhoods, which are the 21 life blood of the upper east side. 22 If you don't have single family 23 residential, medium income houses, where 24 people can live and raise their families and 25 you continue to allow large scale Page 50 1 MS. SLAYZAK: I know. 2 1305, the Planning and Zoning 3 Department believes that the application is 4 in complains with 1305. As the applicant 5 stated early on, this is Class II Special 6 Permit that took, approximately, eight 7 months, which is seven months longer than 8 most of them take. It went back and forth 9 with the Internal Design Review Committee 10 and UDRB, trying to find the kind of 11 conditions that could mitigate any potential 12 adverse affects. 13 What was difficult with this one was 14 SD-9 was in progress and we were not allowed 15 to apply the new SD-9. Through our design 16 review comments, we gave a lot of very 17 similar comments, and the applicant 18 responded by modifying the project 19 tremendously in order to bring it down. 20 So I believe that the Planning Director 21 minimized all of the potential adverse 22 effects to the maximum extent possible, 23 utilizing the conditions and safeguards that 24 were allotted to us through 1305 and the zoning ordinance. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 52 speculative development to abut up against 2 it, you are hacking away at the resource 3 that drives this community. Thank you. CHAIRWOMAN HERNANDEZ: Thank yo MS. DOUGHERTY: Just for the record, I have to object to the goals and policies being submitted into evidence. I know he's just proffering it for the record. CHAIRWOMAN HERNANDEZ: Thank yo We will now close the meeting to the public and open it up to the Board for motions, discussion. I might just add that I think that it's a wonderful idea if that -- any area in the city could be kept for just residential and medium income, but I can't see anybody being able to afford, with a medium income, to build one house on any of these lots anymore. Unfortunately or fortunately. Okay. Board members. MR. PINA: Madam Chair. CHAIRWOMAN HERNANDEZ: Yes. Mr. Pina. MR. PINA: Although we said the character of our neighborhoods is what makes • U E CA 13 (Pages 49 to 52) Esquire Deposition Services (305) 371-2713 Page 53 1 our City, and I always had feeling that the 1 2 code had to be changed, there was some 2 things in the code that needed to be 3 4 changed, but that's what we're working with. 4 5 The applicant has made a proper application 5 6 within the guidelines of the time. You 6 7 can't change the ballgame and say, it's not 7 8 three outs, it's now two outs in the middle 8 9 of the ballgame. 9 10 So I think they've done everything. 10 11 And in addition to that, the comments by 11 12 staff where they went ahead and said, look, 12 13 throughout the middle of this, we made some 13 14 adjustments with the capacity that we had at 14 15 the time, to modify this, to comply as much 15 16 as what's going to be in place, which is the 16 17 SD-9. So -- 17 18 CHAIRWOMAN HERNANDEZ: You going tb8 19 make a motion. 19 20 MR. PINA: Unless my colleagues want 20 21 to. 21 22 I uphold the Director's decision. 22 23 CHAIRWOMAN HERNANDEZ: Well, make23 24 the motion, please. 24 25 MS. SLAYZAK: The motion would be, 25 THE CLERK: Mr. Garbela. MR. GARBELA: Yes. THE CLERK: Mr. Flowers. Let the record reflect -- oh, he left again. Okay. Mr. Ganguzza. MR. GANGUZZA: Yes. THE CLERK: Mr. Garavaglia. MR. GARAVAGLIA: Yes. THE CLERK: Mr. Shulman. MR. SHULMAN: Yes. I'd like to also say I agree with the general concept that there are compatibility issues globally in the City. I think there are problems. I think the zoning is changing, and I think that's beginning to bring these projects more into context. But this project clearly went through a process, benefited from that process, scaled down. All that as part of the process. And so -- And I really do feel that, as a user of Biscayne Boulevard, this is also a good project for Biscayne Boulevard. So, yes. THE CLERK: Mr. Urquiola. MR. URQUIOLA: Yes. Page 55 Page 54 1 deny the appeal and uphold the decision of 2 the Director of Planning and Zoning. 3 CHAIRWOMAN HERNANDEZ: Okay. 4 There's a motion. Is there a second? 5 MR. GARAVAGLIA: Second. 6 CHAIRWOMAN HERNANDEZ: There's a 7 motion and a second by Mr. Garavaglia. 8 THE CLERK: This result, is this 9 only part three? 10 CHAIRWOMAN HERNANDEZ: Yes. Well 11 it's only part three, but it finishes off 12 the item. Okay. Go ahead. 13 THE CLERK: It was seconded. 14 MR. GARBELA: Are we voting on 15 denying the whole thing right now? 16 CHAIRWOMAN HERNANDEZ: Yes. This 17 number three, but that's the only one left. 18 MR. GARBELA: About to deny or grant 19 the appeal? 20 MS. SLAYZAK: You dismissed three of 21 the four grounds for appeal and you're 22 voting on the appeal of the one remaining 23 ground. 24 THE CLERK: Mr. Pina. 3 MR. PINA: Yes. 5 6 7 8 9 10 11 12 13 14 15 id 6 17 18 19 20 21 22 23 24 25 Page 56 THE CLERK: Mr. William. 2 MR. WILLIAM: Yes. 3 THE CLERK: Miss Chair. 4 CHAIRWOMAN HERNANDEZ: Yes. THE CLERK: Motion passes unanimously. CHAIRWOMAN HERNANDEZ: Mr. Pina, would you like to make the motion on the following item, as we had discussed? MR. PINA: To deny the appeal and uphold the Director's decision. CHAIRWOMAN HERNANDEZ: Which has already been voted on the record. MS. SLAYZAK: Let me just ask the Assistant City Attorney, do they have to vote on dismissing one, two and four again? MR. WYSONG: I think the applicant should make that motion and incorporate the arguments from Item 5 into Item 6. Otherwise, it would be the entire appeal that you'd be voting on. MS. DOUGHERTY: I do that. I request that you dismiss grounds one, two and four and incorporate all of our discussion from the last -- from Item Number A y 14 (Pages 53 to 56) Esquire Deposition Services (305) 371-2713 i Page 57 1 5 into Item Number 6. 1 2 CHAIRWOMAN HERNANDEZ: One, two, 2 3 three and four. 3 4 MS. DOUGHERTY: No. We're not 4 5 asking for you -- I'm only asking for the 5 6 dismissal of one, two and four and then I 6 7 would ask you to approve -- deny the appeal 7 8 ultimately. 8 9 CHAIRWOMAN HERNANDEZ: Okay. 9 10 MR. DICKMAN: Can I just -- for the 10 11 record, we'll incorporate all of our 11 12 arguments on those three dismissals and 12 13 also, arguments on the final -- 13 14 CHAIRWOMAN HERNANDEZ: Decision. 14 15 MR. DICKMAN: -- denial. 15 16 How did I do with that? 16 17 CHAIRWOMAN HERNANDEZ: That souncs17 18 good. 18 19 Okay. There's a motion. A second? 19 20 MR. GARBELA: Second. 20 21 CHAIRWOMAN HERNANDEZ: Motion, an 22 second by Mr. Garbela. 23 THE CLERK: Okay. This motion -- 24 MS. SLAYZAK: Is to dismiss 25 grounds -- .► 1 22 23 24 25 Page 59 CHAIRWOMAN HERNANDEZ: Okay. Thanks very much. Thank you. (Whereupon, the hearing as to Item Nos. 5 and 6 was concluded.) Page 58 1 THE CLERK: Two and four. 2 MS. SLAYZAK: Right. And deny the 3 appeal as a whole. 4 THE CLERK: It was moved by Mr.? 5 CHAIRWOMAN HERNANDEZ: Pina, 6 seconded by Mr. Garbela. 7 THE CLERK: Thank you. 8 Mr. Pina. 9 MR. PINA: Yes. 10 THE CLERK: Mr. Garbela. 11 MR. GARBELA: Yes. 12 THE CLERK: Mr. Ganguzza. 13 MR. GANGUZZA: Yes. 14 THE CLERK: Mr. Garavaglia. 15 MR. GARAVAGLIA: Yes. 16 THE CLERK: Mr. Shulman. 17 MR. SHULMAN: Yes. 18 THE CLERK: Mr. Urquiola. 19 MR. URQUIOLA: Yes. 20 THE CLERK: Mr. William. 21 MR. WILLIAM: Yes. 22 THE CLERK: Miss Hernandez. 23 CHAIRWOMAN HERNANDEZ: Yes. 24 THE CLERK: Motion passes 3 unanimously. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 60 CERTIFICATE I HEREBY CERTIFY that the foregoing, pages 1 to and including 59, is a true and correct transcription of my stenographic notes, to the best of my ability and hearing, of a videotape transcription of the Miami Zoning Board Hearing, at the City Hall, Miami, Miami -Dade County, Florida, on the 4th day of October, 2005, commencing at 6:00 o'clock P.M. Not all speakers were able to be identified via the videotape. IN WITNESS WHEREOF I have hereunto affixed my hand this 1st day of November, 2005. Kathleen Schwab Notary Public - State of Florida Commission No.: DD456716 Commission Expires: 08/01/2009 4.4 • E Esquire Deposition Services (305) 371-2713 15 (Pages 57 to 60) EXHIBIT "C" Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Miami City Commission Resolution: A RESOLUTION OF THE MIAMI CITY COMMISSION DENYING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING THE CLASS II SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNINGDIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. WHEREAS, on November 20, 2003, the Zoning Plans Examiner signed and acknowledged the Project was in "compliance with all applicable zoning regulations"; and WHEREAS, the Project's Application was completed on November 24, 2003; and WHEREAS, on March 17, 2004, the City's Urban Development Review Board issued its resolution recommending approval with conditions of a Class II Special Permit for the Project; and WHEREAS, on July 21, 2004, the Planning and Zoning Department issued its Final Decision GRANTING the Class If Special Permit for the Project; and WHEREAS, on October 4, 2005, the Miami Zoning Board unanimously DENTED Appellants' appeal of the July 21, 2004 decision to grant the Class II Special Permit (Zoning Board Resolution No. ZB 2004-0928); and WHEREAS, Appellants thereafter appealed that decision to the City Commission which, on September 22, 2005, voted to grant the appeal and withdraw the Class II Special Permit for the Project; and WHEREAS, the Class II Special Permit applicant filed a petition for certiorari seeking review of the City Commission's decision to the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit, which Court, on July 14, 2006, granted the petition, reversed the decision of the City Commission and remanded for further proceedings in accordance with its opinion; and Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk WHEREAS, Appellants thereafter filed a petition for certiorari seeking review of that decision to the Third District Court of Appeal, which petition was denied on December 1, 2006; and WHEREAS, in accordance with the judicial decisions, the City Commission has made its findings in support of its decision to uphold the Planning and Zoning Department's Final Decision to grant the Class II Permit. NOW, THEREFORE, BE IT RESOLVED BY THE MIAMI CITY COMMISSION: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this S ection. Section 2. Based on the facts and arguments presented to the Miami Zoning Board on October 4, 2005, the Miami Zoning Board found that: a.. In accordance with the determination of the Zoning Plans Examiner, the Project is in compliance with all applicable zoning regulations. b. The Planning and Zoning Department duly considered the comments and recommendations of the Zoning Division, Planning and Zoning Department; the Upper Eastside NET Office, Neighborhood Enhancement Team; and the Urban Development Review Board, which were reflected in its decision to approve the Class II Special Permit with conditions. c. The Planning and Zoning Department found, and this Commission finds, that the following findings were supported by the Record: (I) The Project is a mixed -use building consisting of residential units (89) and common areas (4,799 sq. ft.) with parking garage. (ii) The Project was reviewed by the Internal Design Review Committee which, after the applicant voluntarily revised its plans as suggested by that Committee's five reviews, approved the Project with conditions. (iii) The landscape plan submitted for the Project complies with the Miami -Dade Landscape Ordinance. (iv) The Urban Development Review Board reviewed and approved the Project with conditions. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk (v) With regard to the criteria set forth in Section 1305 of the City of Miami Zoning Ordinance, the Project was reviewed and found sufficient subject to the conditions included in the Final Decision of the Planning and Zoning Department. d. At hearing before this Board, the Planning and Zoning Department confirmed that the application is in compliance with Section 1305 of the City of Miami Zoning Ordinance, and that potential adverse effects of the Project were mitigated by the applicant's voluntary revisions to the plans as had been suggested by the Internal Design Review Committee's five reviews over an eight month period. e. This Board was also provided with testimony by Bernard Zyscovich', the Proj ect's architect, that the Project complies with the applicable requirements for SD-9 Districts, Section 609 of the Zoning Ordinance, and is comparable to the scale and height of other developments in the immediate area. (ZB Hearing Transcript at 42:15-24, 45:7-10; 41:18-21; 43:19-23). f. As the proposed project is no more than 8 stories or 87 feet high and contains 63 units, it falls within the height limitations that apply in the SD-9 District, Section 609, as of the date that the application was deemed complete. g. The project is in compliance with Ordinance No. 12350, even though that ordinance contains new height restrictions which did not take effect until April 29, 2004, after the applicant's complete application was submitted and is, therefore inapplicable to the Project. (ZB Hearing Transcript 31:22-32:5). h. Ordinance No. 12594, which further modified SD- 9 requirements and contained height restrictions for garages and rear setbacks, did not take effect until October 26, 2004, after the applicant's complete application was submitted and after the Board's hearing and is, therefore inapplicable to the proposed project. (See Circuit Court Appellate Division Decision dated July 14, 2006). I. Although Appellants had full opportunity to offer testimony and/or other evidence in support of their appeal, they failed to present competent substantial evidence to indicate that the scale and compatibility of the Project does not comply with any of the criteria in Sections 1305 and 609 of Ordinance No. 11000, or any other applicable ordinance provisions. Appellants also failed to offer any competent substantial evidence to show that the Project is adverse to the public interest. The transcription of the Zoning Board Hearing erroneously refers to Mr. Zyscovich as Mr. Talbot. Review of the video of the hearing confirms that this testimony came from Mr. Zyscovich. 00 o 00 N N E Section 3. Based on the foregoing findings and determinations, the Miami City Commission finds that the Miami Zoning Board had substantial competent evidence to support its denial of the appeal and affirmance of the granting of the Class II Permit, and the Final Decision of the Planning and Zoning Department to GRANT the Class II Special Permit is hereby AFFIRMED. Miami City Commission Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TAKEN & TRENCH, P.A. Law Offices Writer's e-mail: strench a,gttpa.com February. 27, 2008 HAND DELIVERED Commissioner Michelle Spence -Jones Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS II SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Spence -Jones: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101 "). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class II Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Spence -Jones February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5101, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442, 444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232, 236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4th DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4th DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this juncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3rd DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 6 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3rd DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Commissioner Spence -Jones February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. lst DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing —particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5' DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff s petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. 1st DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4`h DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 Fla.L.Weekly Supp. 344a (Fla. 11`h Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3rd DCA 1999). The above -cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Spence -Jones February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. M:\5101 Biscayne\] etters\L-Commissioner Spence-Jones.wpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TANEN Sc TRENCH, P.A. Law Offices Writer's e-mail: strench(czgttpa.com February 27, 2008 HAND DELIVERED Commissioner Marc Sarnoff Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS II SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Sarnoff: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101"). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class II Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step ' In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Sarnoff February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5101, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442, 444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232, 236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4th DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4th DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this juncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3" DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Samoff February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3rd DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court' s mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears 'to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to ►ubmitted into the public •ecord in connection with tem PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing — particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5th DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. 151 DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4`'` DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 FIa.L. Weekly Supp. 344a (Fla.11`h Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3`d DCA 1999). The above -cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sarnoff February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. M:\5101 Biscayne\L.etters\L-Commissioner Samoff .wpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TANEN 8c TRENCH, P.A. Law Offices Writer's e-mail: strench(cr1gttpa.com February 27, 2008 HAND DELIVERED Commissioner Joe M. Sanchez Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS II SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Sanchez: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101"). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class II Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step ' In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Sanchez February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5101, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442, 444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232, 236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4`h DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4th DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this juncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3rd DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3`d DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 151 DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing — particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5th DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trialjudge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. 1" DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4th DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 F1a.L. Weekly Supp. 344a (Fla.11 th Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3`d DCA 1999). The above -cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Sanchez February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Sincerely, Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. M:\5101 Biscayne\Letters\L-Commissioner Sanchez.wpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk GOLDSTEIN, TANEN 8e TRENCH, P.A. Law Offices Writer's e-mail: strench(rugttpa.com February 27, 2008 HAND DELIVERED Commissioner Tomas P. Regalado Miami City Commission City Hall 3500 Pan American Drive Miami, FL 33133 One Biscayne Tower • Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Telephone (305) 374 — 3250 Facsimile (305) 374 — 7632 Re: File ID 04-01208: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING OR GRANTING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ, AFFIRMING OR REVERSING THE DECISION OF THE ZONING BOARD, THEREBY APPROVING OR DENYING THE CLASS II SPECIAL PERMIT APPLICATION NO. 03-0309 ISSUED BY THE PLANNING DIRECTOR ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION, LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD, MIAMI, FLORIDA. Dear Commissioner Regalado: This office represents the applicant for the Class II Special Permit referenced above (hereinafter referred to as "5101"). Since this matter is coming up before the City Commission this Thursday, February 28, 2008, we wanted to review with you the applicable court decisions and Florida law which delineate the role of the Commission with respect to Morningside's appeal of the Zoning Board's decision approving 5101's Class II Special Permit Application. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 2 History 5101 was granted a Class II Permit for its proposed project and, upon appeal to the Zoning Board by the Morningside Civic Association, et. al. ("Morningside"), the Zoning Board affirmed the issuance of the Permit and denied that appeal. Appeal was then taken by Morningside to this Commission, which conducted a de novo hearing on the Permit application, reversed the Zoning Board's determination and voted to deny the Permit. 5101 filed a petition for certiorari to the appellate division of the Circuit Court which reversed and remanded the Commission's ruling. Lucia Dougherty v. City of Miami, Florida (Case No. 05-409AP, January 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3rd DCA 2006) (Mandate and Amended Opinion attached as Exhibit "A" hereto). In its Amended Opinion, the appellate division held that the City Commission had failed to follow the essential requirements of the law with respect to its reversal of the Zoning Board decision in two ways: (a) the Commission failed to provide findings of fact in support of its decision to reverse the Zoning Board; and (b) the Commission exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it. Commissioner Regalado February 27, 2008 Page 3 Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk The latter ruling was based on Section 1201 of the City of Miami Zoning Code in effect at the time, which did not allow for de novo review by the City Commission of an appeal from the Zoning Board. The appellate court found that: 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. Since that decision was rendered, 5101 has sought to have this matter addressed by the Commission in accordance with the appellate court's Mandate — that is, have the Commission either provide findings of fact to support its reversal of the Zoning Board decision (with those "facts" coming solely from the record before the Zoning Board) or, if it finds that the facts before the Zoning Board do not support the Commission's reversal, change its decision to an affirmance of the Zoning Board. Initially, the City sent the matter back to the Zoning Board to have that Board provide findings of fact supporting its decision to grant the Permit,' which could then be reviewed by the City Commission. When this matter came up on the Zoning Board agenda, however, Morningside protested that this step was not a part of the appellate court's Mandate and should not occur. Because the Zoning Board had already made a sufficient record of its findings in support of its ruling (see Transcript of Zoning Board hearing attached as Exhibit "B" hereto), Petitioner agreed this step In actuality, the Zoning Board had already made such findings, as evidenced in the transcript of the proceedings before that Board as well as its ultimate decision document. Commissioner Regalado February 27, 2008 Page 4 was unnecessary and, therefore, the matter was removed from the Zoning Board agenda and rescheduled before the City Commission. Morningside has taken the position that the City Commission can now, on this remand, hold a new evidentiary hearing on Morningside's appeal of the Zoning Board's decision to grant the Permit, because the Miami Zoning Code was amended — months after this appeal had been heard by the Board and the certiorari petition filed — to allow for such de novo review. 5101, however, maintains that under existing case law, the conduct of such an evidentiary de novo hearing on this Permit on remand, purportedly justified on the basis of the subsequent change in the City Commission's appellate procedure, would violate the Mandate that was sent down by the Court. Legal Discussion "A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form." Metropolitan Dade County v. Dusseau, 826 So. 2d 442, 444 (Fla. 3rd DCA 2002); Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3rd DCA 1995). As noted in Modine Manufacturing Company v. ABC Radiator, Inc., 367 So. 2d 232, 236 (Fla. 3rd DCA 1979): The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. (emphasis added). Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 5 Thus, in Modine, the court held that it was a violation of its mandate for the court to have allowed the pleadings in the previously nonjury case to be amended and thereafter tried by a jury upon remand from the appellate court. Similarly, in Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4`h DCA 1979), the court found that appellants were seeking "two bites at the apple" in seeking another evidentiary hearing after a mandate had issued, where the prior opinion "neither contemplated nor authorized a second evidentiary hearing," the court noting, "Somewhere the curtain must ring down on litigation." Accord, Amir v. Amir, 925 So. 2d 1048, 1050 (Fla. 4" DCA 2006) ("A basic principle of appellate review is the trial court lacks authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. After the issuance of a mandate, the trial court's function is purely ministerial."); Milton v. Keith, 503 So. 2d 1312 (Fla. 3rd DCA 1987). To have the City Commission now rehear this matter, this time under its newly enacted de novo procedure — the very type of hearing that was held improper under the ordinance in effect when Morningside's appeal came before the Board — would clearly not be in conformance with the appellate court's mandate, and would certainly be the "two bites at the apple" not permitted at this juncture. A case closely on point, Metropolitan Dade County v. Klein, 229 So. 2d 589 (Fla. 3' DCA 1969), confirms that the City Commission cannot use a change in hearing procedure to justify a de novo rehearing of a case that has been remanded for proceedings consistent with the appellate decision. In the first appeal taken in Klein, the Third District reversed and remanded a decision of Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 6 the Circuit Court denying Klein's petition for certiorari, the Third District holding that there were clearly procedural defects in Klein's personnel hearing before the Dade County Personnel Advisory Board — like the City Commission here, the Board had failed to convey written findings of fact. Klein v. Metropolitan Dade County, 217 So. 2d 155 (Fla. 3`d DCA 1969). On remand, the Circuit Court entered an Order directing the County to initiate appropriate proceedings to accord Klein the procedural due process he had not received in the first go round. During the pendency of Klein's certiorari petition, however, the County had changed the Ordinance which governed the authority and procedures of the Personnel Advisory Board and had developed a new procedure for the hearing of personnel appeals. Noting that the original procedure "was the procedure guaranteed to the petitioner at the time of his dismissal and at the time of his appeal therefrom under the terms of the Ordinance," the lower court did not order that a new hearing be conducted under the new procedures, but rather found that the only way it could enforce the appellate court's mandate was to require that the County reinstate Klein. The lower court's decision, quoted in full by the Third District, stated: It appears to the Court that the County has commendably made changes in its personnel review procedures which are considerably improved over the prior procedures. This might even have resulted from comments made by the courts in this and other cases which reviewed appeals arising from prior proceedings. It further appears, however, that by making these changes the County has made it impossible to provide to this particular Petitioner, the due process which the Court of Appeals has ruled is due to him. 229 So. 2d at 589. The Third District agreed, noting that, "Upon remand of a cause the trial court must carry out the mandate of the appellate court in a manner consistent with the law applicable to Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 7 the case and the directions of the appellate court." 229 So. 2d at 590-91. On that basis, the court held that the circuit court's order requiring Klein's reinstatement (rather than rehearing under the new personnel procedures) was proper pursuant to the mandate. Another case directly addressing the limitations on an administrative body on remand, this time in a development context, is Parker Family Trust v. City of Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001). Similar to the City Commission herein, the Jacksonville City Council voted to deny petitioner's application for rezoning notwithstanding the recommendation of the Jacksonville Planning and Development Board that the application be granted. Holding that the City had failed to establish by competent, substantial evidence that its refusal to rezone the property was not arbitrary, discriminatory or unreasonable, the First District had remanded to the City Council for "such further proceedings as may be appropriate and consistent" with its order. On remand, the City Council allowed opponents of the rezoning to bolster the lay testimony from the original hearing with new expert testimony, and again denied the rezoning. The First District granted petitioner's certiorari petition, holding that by conducting a new hearing the City Council had simply ignored the prior ruling of the appellate court and had violated the doctrine of the law of the case, under which a trial court is bound to follow prior rulings of the appellate court so long as the facts of the case remain the same. Likewise, here, the Mandate does not authorize a new hearing — particularly one to be conducted in a manner that was specifically found by this Court to be unauthorized at the time the City Commission made the reversed ruling. Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 8 Similarly, in Wolford v. Boone, 920 So. 2d 39 (Fla. 5th DCA 2005), the appellate court had granted a petition for certiorari with respect to the lower court's refusal to strike the pleadings of the defendant doctor who had failed to comply with pre -suit discovery requirements in a malpractice action, ordering the lower court to either provide findings in support of its decision, or change its decision. The lower court, at the request of the doctor, then set an evidentiary hearing on the issue of the doctor's failure to comply. The Fifth District granted the plaintiff's petition to enforce the mandate and quash the order setting the evidentiary hearing, stating: We think it is plain that our prior opinion, especially as clarified, contemplated only an amended order containing findings of fact to explain and support the trial court's decision, not a new evidentiary hearing. There was a complete record of the proceedings below and the judge should simply be able to identify what facts and evidence contained within the record had persuaded her to exercise her discretion to excuse the health care provider's conduct, or if unable to do so, to issue a different ruling. 920 So. 2d at 41. (emphasis added). Likewise, here, this Court's Mandate contemplated an amended order from the City Commission containing the findings of fact to explain and support its decision, based upon the complete record of proceedings before the Zoning Board. The City Commission, like the trial judge in Wolford, was simply to "identify what facts and evidence contained in the record had persuaded" it to reverse the Zoning Board and deny Petitioner's permit. The City Commission has no authority to go outside these directives of the Mandate and, on its own, determine that it will totally rehear this matter under new rules, taking new and additional Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 9 testimony. See, Mills v. Laris Painting Company, 125 So. 2d 745, 748 (Fla. 1960) (An agency's power to rehear or reopen a cause can only be exercised before an appeal from the original order is taken). Accord, Reich v. Department of Health, 868 So. 2d 1275 (Fla. 1st DCA 2004); Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4th DCA 2003). This Court's Mandate solely allows the Commission to consider the record that had been made before the Zoning Board, make its decision based upon appropriate appellate criteria, and provide its findings of fact in support of that decision. It does not authorize a rehearing of the appeal, particularly not a rehearing under new rules not in existence when this matter was first heard. The City simply cannot use this remand to allow MORNINGSIDE a "second bite of the apple." Thus, because the Commission is sitting in this case in its appellate capacity as that was defined when this matter first came before it, its role is limited to appellate, not de novo review. That role is solely to determine whether there was substantial competent evidence to support the Zoning Board's decision to grant the Permit, which "comes to the ... Commission clothed with the presumption of correctness." Ziegler v. Miami -Dade County, 8 FIa.L. Weekly Supp. 344a (Fla. 11 `h Cir. Ct. March 20, 2001), citing to, Miami -Dade County v. Walberg, 739 So. 2d 115 (Fla. 3`d DCA 1999). The above -cited decisions, including the decision that was rendered in this case, also hold that the Commission must make findings of fact with respect to its ultimate decision in this case. Should the Commission agree that the Zoning Board had substantial, competent evidence to support its holding and that, therefore, that holding should be affirmed, I have attached a proposed Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk Commissioner Regalado February 27, 2008 Page 10 RESOLUTION that so states (Exhibit "C" hereto). If the Commission does not find that there was such substantial, competent evidence, it will have to outline in its findings why the evidence before the Zoning Board was not competent or substantial enough to withstand appellate review. Thank you for your time. Susan E. Trench cc: Maria Chiaro, Esq. Rafael Suarez -Rivas, Esq. Michael A. Sastre, Esq. M:\5101 Biscayne\Letters\L-Commissioner Relegado.wpd Submitted into the public record in connection with item PZ.11 on 02-28-08 Priscilla A. Thompson City Clerk