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HomeMy WebLinkAboutSubmittal-Tucker GibbsIN THE MATTER OF THE ZONING VARIANCES GRANTED REGARDING THE PROPERTY AT 888 BRICKELL AVENUE, MIAMI, FLORIDA, CASE NO. 08-00169V RESPONSE TO MOTION TO DISMISS OF ALPHATUR 1. 1100 Brickell Condominium Association and Otis Wragg are aggrieved parties pursuant to section 2002 of the city's zoning ordinance Section 2001 of the City of Miami Zoning Ordinance states "Decisions of the zoning board, whether acting on matters of appeal from the zoning administrator or director of the department of planning, building and zoning or acting in its original jurisdiction on matters of Special Exceptions or variances, are to be deemed final unless, within fifteen (15) calendar days of the date of the board decision, a request for review by the city commission is made in the manner herein set out." Section 2002 of the City of Miami Zoning Ordinance states: "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. Such request may be filed by the applicant or petitioner or by any person or persons, jointly or severally, aggrieved by the action of the zoning board, or by any officer, department, board, commission, or bureau of the city." On April 7, 2008, The 1000 Brickell Avenue Condominium Association and Otis Wragg (a unit owner in the 1100 Brickell Avenue building, filed their request to be heard by the city commission on the matter of the zoning board's grant of a zoning variance for the proposed project at 888 Brickell Avenue. The 888 Brickell project is across S.E. 10th Street from 1100 Brickell Avenue. 1100 Brickell Avenue Condominium Association and Mr. Wragg are aggrieved parties as defined in Florida law as 1 their proximity to the proposed project (as well as other factors) causes them to be affected by that development to a greater extent than the community at large. Renard v. Dade County, 261 So.2d 832, 837 (Fla. 1972). 2. There is no requirement in the city's zoning code that an aggrieved party must first appear at the zoning board as a condition precedent to requesting the city commission to review a zoning board decision. The city's zoning code includes no requirement that one must appear at the zoning board before requesting city commission consideration of a zoning board decision. The only requirement for city commission consideration of a zoning board decision is that the party or parties be "aggrieved" and that the party or parties provide a request for such consideration within 15 days of the zoning board's decision. This request -for -review process is part of a procedure set forth in the zoning code that culminates in a de novo city commission consideration of the request for review. According to section 2004, the city commission in its de novo review of the request sits as "a body of original jurisdiction." According to Black's Law Dictionary: "Hearing de novo. Generally, a new hearing or a hearing for the second time, contemplating an entire trial in the same manner in which the matter was originally heard and a review of previous hearing. On hearing de novo the court hears the matter as a court of original and not appellate jurisdiction." Thus the process that brings a zoning board -decided matter to the city commission is not an appellate matter. It is a new hearing or another hearing that serves as a review of the zoning board's decision. By the city zoning code's explicit language, the city commission's consideration or review of the zoning board's decision is a new hearing that replicates the zoning board's hearing. 3. The concept of exhaustion of administrative remedies is not applicable because the city's exhaustion of administrative remedies zoning code provision merely limits the ability of parties to appeal certain matters into court. It does not apply to an 2 administrative request pursuant to specific code sections for city commission consideration of a zoning board decision. Exhaustion of administrative remedies is the legal rule that says that before a court may consider an issue present for litigation, that all city processes must be completed. Coral Gables v. Fortun, 785 So.2d 741, 742 (Fla. 3d DCA 2001), Vanderbilt Shores Condominium Association v. Collier County, 891 So.2d 583, 585-586 (Fla. 2d DCA 2004). Exhaustion of administrative remedies envisions that the administrative process is followed to its conclusion before any appeal into court may be taken. Thus this "motion" presumes that a court will hear an appeal in this matter. That is the only mechanism to decide the issue of exhaustion of administrative remedies. Note that section 2005 specifically states 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 administrative remedies provided under the zoning ordinance." 1. This "motion" is premature since no decision has been made that can be appealed into court. And when such a decision is made, no appeal may necessarily be taken. 2. If an appealable decision is made, the moving party can then bring this issue to the court's attention for its review and determination. Here all city zoning code required considerations took place. The matter was heard by the zoning board pursuant to code. 1000 Brickell and Mr. Wragg, pursuant to that code filed their action to have the city commission (in its de novo-original jurisdiction role pursuant to the zoning code) review the zoning board's decision. The only way to address exhaustion of administrative remedies is in a legal proceeding as is stated in section 2005 of the zoning code. 4. The applicant erroneously cites to three cases for its argument that the city commission should reject the appeal. 1 General Electric Credit Corp of Georgia v. Metropolitan Dade County, 346 So. 2d 1049, 1053 (Fla. 3d DCA 1977). There the court examined a development of regional impact ("DRI") which was considered by the county commission and then appealed into court. on 05-22-08 a E 3 However, according to statute (according to the court) the appeal should have been made to a state agency. Because the appeal was not made to the state agency, it was denied by the court. Interestingly, the court noted that where a method of appeal to an administrative entity was available and not utilized, the doctrine of exhaustion of administrative remedies would apply. Id., 1054. Here 1000 Brickell and Mr. Wragg utilized the code - provided process and requested the de novo city commission review of the zoning board's decision pursuant to sections 2001 and 2002 of the zoning code. 2. Fort Lauderdale Board of Adjustment v. Nash, 425 So.2d 578, 579 (Fla. 4th DCA 1982). This case has no application here as it deals with a procedural situation that does not include city commission de novo review of a request for review of a zoning board decision. In Fort Lauderdale, appeals from the Board of Adjustment go directly to the circuit court. The city commission does not review such decisions. Therefore under the Florida Rules of Appellate Procedure such review by the court is an appellate, record -based matter and not subject to new evidence. In the case here the city commission holds a de novo hearing in an original -jurisdiction capacity according to section 2004 of the zoning code. The commission is not restricted to the record and m_= may accept new evidence according to section c2004. . O a 3. Battaglia Fruit Company v. City of Maitland, 0 = 530 So.2d 940,943 (Fla. 5t DCA 1988). In this m ° rezoning case representatives of the City of c et Maitland did not appear at the Orange County O 't7! rezoning hearing to voice objections. The g. district court determined that the City of Maitland had no standing to bring the appeal of the rezoning because it was not present at the Orange County rezoning hearing. This is not an exhaustion of administrative remedies case. It deals with the issue of standing. The district court explained why the City of Maitland had no standing: "Whatever objections the City of Maitland had to the 4 proposed rezoning were never made to the agency which had the power to grant or deny the rezoning." Under the City of Miami zoning code, the city commission in its de novo capacity sitting as a body of original jurisdiction pursuant to section 2004 of the zoning code, is the entity that has the power to grant or deny the zoning variance application. 1000 Brickell and Mr. Wragg correctly invoked the commission's original jurisdiction under sections 2001 and 2002 of the zoning code. Therefore this matter is correctly before the commission because there is no requirement that 1000 Brickell or Mr. Wragg be present at the zoning board to request city commission review of that board's decision. 1000 Brickell Condominium Association and Otis Wragg as aggrieved parties have correctly invoked the original jurisdiction of the Miami city commission in their request for the commission to review the zoning board's decision to grant the variance for the property at 888 Brickell Avenue. Therefore the "motion" before the city commission should be denied. SUBMITTED INTO THE PUBLIC RECORD FOR ITEM�[i, ON5=22O1 Respectfully submitted, W. Tucker Gibbs, P.A. Attorney at Law Attorney for Respondents 2980 McFarlane Road, Suite 205 P.O. Box 1050 Coconut Grove, Florida 33133 Tel (305) 448-8486 Fax (305) 448-0773 By: W. Tucker Gibs, Esq. 5