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VIA HAND DELIVERY
Mr. Pedro Hernandez
City Manager
City Hall
3500 Pan American Drive
Miami, FL 33133
Office of Historic Preservation
City of Miami
444 S.W. 2fd Avenue
Miami, FL 33130
A. Vicky Gars€a-Telec r, Esq.
305.350.2400
305.351 2233
vgt@tn zm.com
March 12, 2008
Ms. Ana Gelabert-Sanchez
Director, Planning Department
City of Miami
444 S.W. 2"d Avenue
Miami, FL 33130
Ms. Teresita Fernandez
Clerk, Hearing Boards
City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130
Re: 4055 S.W. 37th Avenue/Douglas Road / Appeal of Historic and
Environmental Preservation Board Decision
Dear Ladies and Gentlemen:
On behalf of our client, EFC Holdings, Inc., (the "Property Owner") the owner of property
located at 4055 SW 37th Avenue/Douglas Road, (the "Property"), this letter constitutes an
appeal of the decision of the Historic and Environmental Preservation Board, (the "HEP Board"),
at its hearing held on March 4, 2008, Item Number 9, referenced as EPD-2007-103, to deny the
Application for a Certificate of Approval for the removal and relocation of trees to accommodate
new construction. Please note that the companion item referenced as HP-2007-225 for a
Certificate of Appropriateness for ground disturbing activity involving new construction within an
Archeological Conservation Area was approved unanimously.
At present, the Property is the site of vacant land which is zoned R-1 with overlay
districts of SD-18 and NCD-3. These zoning districts permit residential development at a height
of 25 feet with a minimum lot size of ten thousand square feet and a minimum lot width of one
hundred feet. The Property Owner is proposing a Planned Unit Development consisting of
eleven single family parcels for home sites. Douglas Road is designated a Scenic
Transportation Corridor, and this property is located in an Environmental Preservation District
and therefore regulated under Chapter 17 of the City of Miami Code (the "Code"). The Property
Owner is currently seeking a Major Use Special Permit ("MUSP") for the proposed Planned Unit
Development. The MUSP application for property located in a Scenic Transportation Corridor,
1UA M 115.1443 9. 1 700142784 7
B LZIN SUMSEAG BAENA. PRICE r AXELROD LLP
200 S. Bicayn€ Boulevard, 60,e 2500, Miami, P?-_ 3373?-5340 305.374.7580 305.374.75n
MW-C13 12005
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Environmental Preservation District, and Archeological District triggered the review by the HER
Board.
Section 17-27 of the Code states that it is the intent of the article: 1) To preserve and
protect trees and other significant environmental features within the city, and 2) to require that
the design and construction of all development activity be executed in a manner consistent with
the preservation of trees and other significant environmental features to the greatest extent
possible. Additionally, issuance of a Certificate of Approval for this project is governed by the
criteria from Section 17-34(a) of the Code which states: No permit shall be issued for tree
removal from the site, unless one of the following conditions exists:
(1) The tree is located in the buildable area or yard area where a structure or
improvement may be placed and unreasonably restricts the permitted use of the
property.
(2) The tree is diseased, injured or in danger of failing, interferes with utility service,
creates unsafe vision clearance or conflicts with other provisions of this Code or other
ordinances or regulations.
(3) It is in the general welfare of the public that the tree be removed for a reason other
than set forth above.
This appeal is based on the following legal grounds, including but not limited to:
(1) The HEP Board went beyond the intent of Section 17-27 of the Code to preserve
trees to the "greatest extent possible" by completely prohibiting all relocation and
removal of trees for the development of the property;
(2) The HEP Board violated Section 17-34 of the Code by prohibiting tree removal where
a capital improvement may be placed and in doing so unreasonably restricted the
permitted use of the property;
(3) The HER Board went beyond the jurisdiction granted in Chapter 17 of the Code by
demanding justification as to how the Property Owner decided on the proposed density
and massing;
(4) The HEP Board went beyond the jurisdiction granted in Chapter 17 of the Code by
requiring various sets of plans with alternate road placements, where the Property
Owner's application for the Certificate of Approval was based upon one set of plans with
the road on the South side of the property;
(5) The HEP Board's denial of the Certificate of Approval was not based on the criteria
listed in Section 17-27 of the Code, but rather the denial was based on a motion that in
part reasoned to protect the trees "for a little bit longer" (Solera Tr. at 137).
MIAMI 1514439.E 7001427847
B 'lN SUMBERG G BAENA PR CE & ?tom;&:.ROD LLP
March 13, 2008
Face 3
We respectfully submit that the only competent substantial evidence presented at the
March 41 hearing regarding the application of the relevant criteria to the proposed project
supported the approval of the Certificate of Approval. The trees the Property Owner is
proposing to remove or relocate are located in the buildable area on the south side of the
property where the road is to be placed. By placing the road on the south side of the property,
the least amount of valuable trees will be removed. Furthermore, the Preservation Officer's
recommendation stated that the proposed tree replacement schedule met and/or surpassed the
requirements of the tree replacement plan.
The HEP Board unreasonably restricted the use of the property by not allowing the
placement of the road on either the north or the south side of the property. Board member
Solera stated on the record, "[dlon't build anything here. Just plain and simply deny it..,because
we're not going to make anybody happy here. Don't put anything on it. Go fight it somewhere
else" (Solera Tr. at 137). Another board member stated he was going to base his vote on
neighborhood compatibility (Grafton Tr. at 132). While the board may consider adverse impacts
on the general public welfare and adjacent properties, this is one factor amongst many to
consider in forming a decision for a Certificate of Approval.
The motion to deny the application made by Board Member Sclera reasoned "because I
personally don't believe this is the right context...the protection of the trees is not there. It may
never be there. But this is our opportunity to at least protect it for a little bit longer, if possible."
(Solera Tr. at 148). By stating that she did not want any development on this piece of property,
Board Member Solera's justification exhibits an unreasonable denial of the application.
Additionally, the HEP Board went beyond its jurisdiction by discussing density and
massing. They went beyond the confines of the application by requiring various sets of plans
with alternate road placements and by disregarding the support and requests of the neighbors
that the Certificate be approved with the road on the south side of the property. Further, if the
HEP Board's decision is allowed to stand, the property owner would be deprived of her
reasonable investment backed expectation in violation of constitutional principles of due
process.
Accordingly, we respectfully appeal the decision of the HEP Board and request that the
City Commission reverse the HEP Board's denial of the application for a Certificate of Approval.
Please schedule this appeal for the next available agenda of the Miami City commission. Thank
you for your attention to this matter.
Ashley K. Aronowitz
MIAML 1514439.1 7001427847
Sincerely,
A. Vicky Garcia -Toledo
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