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Home My WebLink AboutSubmittal-Motion To Dismiss Notice Of Appealpz BEFORE THE CITY COMMISSION OF THE CITY OF MIAMI ZONING BOARD CASE NO. 08-00169v 1000 BRICKELL AVENUE Condominium Association, Inc. and Otis Wragg Appellants, vs. Alphatur, N.V. and CITY OF MIAMI Appellees U u_ c-S oc r cn CD Lil co m �., CO a_ MOTION TO DISMISS NOTICE OF APPEAL Appellee, 888 Brickell Avenue, Miami, Florida, moves to dismiss the Notice of Appeal filed by Appellants, 1000 Brickell Avenue Condominium Association, Inc. and Otis Wragg, 1000 Brickell Avenue, Unit 400, Miami, Florida 33131, regarding the variances granted by the City of Miami Zoning Board ("Board") on March 24, 2008 (Case No: 08-00169). FACTS Appellee is the owner of property located at 888 Brickell Avenue, Miami, Florida ("Property"). Appellee filed a request for four variances regarding the Property ("Application"). These requests were granted by the Zoning Board at its meeting on March 24, 2008. No one TEW CARDENAS LLP Four Seasons Tower, l5th Floor, 1441 Brickell Avenue, Miami, Florida 33131-3407 • 305-536-1112 OS - OQ i(dv Q.4 - ` fl ot10 E° t7it r r; 10 t 1 LC, 04:: 14. appeared at the hearing to oppose the Application, nor did anyone submit any comment cards opposing the Application. On April 7, 2008, Appellants purported to file an appeal with the Department of Hearing Boards, challenging the Zoning Board's action regarding the Application. Neither 1000 Brickell Avenue Condominium Association, Inc. nor Otis Wragg appeared at the Zoning Board meeting, nor did either of them submit anything into the record objecting to the Application. ARGUMENT Appellants' appeal should be dismissed for the following reasons: Appellants Lack Standing Because they Failed to Exhaust Their Administrative Remedies Appellants have no standing to appeal the Board's Order, as they failed to exhaust their administrative remedies. First, the instant matter is an appeal of an otherwise final order made by the Zoning Board See Article 20, section 2002, of the City of Miami Zoning Code ("Zoning Code")("A request for review of a zoning board decision by the city commission shall be filed with an officer or agent designated by the city manager stating the specific reasons for such appeal, together with payment of any required fee"). As an appeal, Appellants are required to exhaust administrative remedies. Further, pursuant Article 20, section 2005 of the City of Miami Zoning Code ("Zoning Code") requires that "no application shall be made to the court for relief from decisions made pursuant to the zoning ordinance unless the aggrieved party has first exhausted all remedies provided under the zoning ordinance." (Emphasis added). While Appellants seek relief to the City Commission from the Zoning Board's decision, the intent of the Code is apparent: administrative remedies must be exhausted in order to challenge decisions made pursuant to the Zoning Code. Indeed, Article 20, Sec. 2005 would preclude Appellants from challenging the 7 TEW CARDENAS LLP Four Seasons Tower, l5th Floor, 1441 Brickell Avenue, Miami, Florida 33131-3407 • 305-536-1 112 decision of the City Commission to court in this matter,. since Appellants failed to appear at the Zoning Board meeting. It is therefore illogical to allow the Appellants to challenge the Zoning Board's decision to the City Commission when Appellants would be unable to seek relief in court from the City Commission's decision. The essential administrative remedy available to Appellants was an opportunity to appear before the Board and oppose Appellee's application fbr a variance. The variance application process requires that notice of the application be published as well as mailed to property owners within 500 feet of the subject application. Nevertheless, in spite of the proper notice procedures being followed, Appellants chose not to attend the hearing and voice their objections. Instead, they waited for the Board to hear and consider arguments related to the variance and, only after being unsatisfied with the decision, decided to challenge the variance. Pursuant to the Zoning Code, Appellants' failure to attend the hearing and exhaust their administrative remedy prevents Appellants from filing the subject appeal. City Commission May Not Make Determination on Issue Where Zoning Board Was Not Given Similar Opporiunity The very purpose of a hearing before the Board is to provide individuals with opportunities to set forth arguments for the Board to consider in reaching its decision, and to ensure that the Board is afforded the benefit of considering all issues relating to the application before it. See, e.g., Gen. Electric Credit Corp. of Georgia v. Metropolitan Dade County, 346 So. 2d 1049, 1053 (Fla. 3d DCA 1977) (upholding dismissal of a petition for failure to exhaust administrative remedies and, in considering a revised proposal which was not before the Board, stating, "we will not take it upon ourselves to make such a determination where the proper administrative agencies have been denied a similar opportunity"). Appellants failed to appear 3 TEW CARDENAS LLP Four Seasons Tower, 15th Floor, 1441 8rickell Avenue, Miami, Florida 33131-3407 • 305-536-1112 before the Zoning Board and failed to provide the Zoning Board with the opportunity to consider Appellants' objections. Appellants cannot, therefore, appear for the first time on this matter on an appeal to the City Commission) See, e.g„ Ft. Lauderdale Bd. of Adjustment v. Nash, 425 So. 2d 578, 579 (Fla. 4th DCA 1982) (holding that the Circuit Court acted inappropriately by reversing the Board of Adjustment's denial of a variance, since petitioner espoused a new argument which was not properly placed in issue before the Board); see also Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940, 943 (Fla. 5th DCA. 1988) (dismissing a petition for writ of certiorari because the proper administrative agency was not given opportunity to correct its decision where petitioner failed to provide information to the reviewing body for consideration). Here, Appellants failed to exhaust their administrative remedies and, therefore, should be barred from presenting arguments which they failed to present before the Board. More specifically, Appellants should have been present at the hearing before the Board to present their opposition to the variance. The hearing is an administrative remedy that was available to them, which they failed to attend. They cannot now espouse new arguments for the first time on appeal. Accordingly, Appellants' appeal should be dismissed for failure to exhaust their administrative remedies. Appellee reserves its right to supplement its arguments prior to or at the City Commission's consideration of this issue. Submitted into the public record in connection with item PZ.15 on 05-22-08 Priscilla A. Thompson City Clerk Although the hearing before the City Commission must be conducted de novo, this applies only to evidence and does not waive the requirement that Appellants' appear before the Zoning Board to have standing. A de novo proceeding does not confer standing on parties who failed to appear below. 4 TEW CARDENAS LLP Four Seasons Tower, 15th Floor, 1441 Brickell Avenue, Miami, Florida 33131-3407 305-536-1112 DATED this 19th day of May, 2008 Respectfully submitted, TEW CARDENAS LLP Four Seasons Tower, 15th Floor 1441 Bricke].1 Avenue Miami, Florida 33131 Telephone: 305.536.1112 Facsimile: 3.D6.1116 By: SANTIAGO D. ECHEMEN Florida Bar No.: 70509 Email: sde tewlaw.co BOB DE LA FUENTE Florida Bar No 973998 Email: bdf@tewlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via electronic mail and facsimile this 19th day of May 2008 on: W. Tucker Gibbs, PA. P.O. Box 1050 Coconut Grove, Florida 33133; Maria Chiaro, City of Miami, 444 S.W. 2nd Ave, Miami, FL 33130; Mr. Anel Rodriguez, Administrative Assistant: II, City of Miami, Hearing Boards, 444 S.W. 2nd Avenue, Miami, FL 33130; and via hand -delivery to Terecita Fernandez, Director, Hearing Boards Office, 444 S.W. 2nd Avenue, Miami, FL 33130. 506148_I.DOC By: / BOB DE LA Fu 5 Submitted into the public record in connection with item PZ.15 on 05-22-08 Priscilla A. Thompson City Clerk 'FEW CARDENAS LL.P Four Seasons Tower, 15th Floor, 1441 Brickell Avenue, Miarni, Florida 33131-3407 • 305-536-1112