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HomeMy WebLinkAboutAppeal Letter (2)BECKER &-) POLIAKOFF ADMINISTRATIVE OFFICE 3111 STIRLING ROAD FORT LAUDERDALE, FL 33312 800.432.7712 U.S. TOLL FREE W W W. B ECKE R-POLIAKO FF.COM BP@BECKER-POLIAKOFF.COM FLORIDA OFFICES BOCA RATON FORT MYERS FORT WALTON BEACH HOLLYWOOD HOMESTEAD LARGO MELBOURNE* MIAMI NAPLES ORLANDO SARASOTA TALLAHASSEE WEST PALM BEACH AFFILIATED OFFICES BEIJING FRANKFURT NEW YORK PRAGUE TEL AVIV * by appointment only September 29, 2009 BY HAND DELIVERY Teresita Fernandez Chief, Hearing Boards Miami Riverside Center 444 Southwest 2nd Avenue, 7th Floor Miami, Florida 33130 121 Alhambra Plaza, loth Floor Coral Gables, Florida 33134 Phone: (305) 262-4433 Fax: (305) 442-2232 Reply To: Coral Gables Carlos J. Gimenez, Esq. Direct dial: (305) 351-1084 CGimenez@becker-poliakoff.com Re: Appeal of that certain Request for Extension of Time: Zoning Board Resolution No.: 08-027, Affirmed by City Commission Resolution No.: R-08-0468, July 24, 2008 (the "Extension"). Dear Ms. Fernandez: This firm represents the 1000 Brickell Avenue Condominium Association in connection with this matter. Pursuant to Section 2004 of the City of Miami Zoning Ordinance, 11000 ("Zoning Code"), we hereby appeal the above - referenced Extension to the City of Miami Commission. Pursuant to Section 1904.2 of the Zoning Code, " Failure to meet such time limitations shall result in the cancellation of the permit for variance unless, on application to the zoning board and on due cause shown, the board shall extend the time limitations originally set." (emphasis added) During the public hearing held before the City of Miami Zoning Board, this past September 14, 2009, the applicant, being represented by Mr. Santiago Echemendia, requested and Extension of Time, and, in support of same, Mr. Echemendia failed to demonstrate due cause as it relates to his client's request. The only support provided by Mr. Echemendia was the supposed inability of his client to obtain financing, citing the global economic crisis. This generalization cannot serve to provide the "due cause" as required by Section 1904.2 of the Zoning Code. There was no evidence provided that the applicant had even sought financing for the project. No letter of denial, no copy of the application, and furthermore, no affirmative statement by the applicant's counsel that the applicant had made an attempt to secure financing and failed. Put simply, the applicant has not demonstrated good faith and diligence in this process. The Zoning Board erred by not requiring the applicant to show due cause, as required by the Zoning LEGAL AND BUSINESS STRATEGISTS MEMBERS OF CONSULEGIS AN INTERNATIONAL ASSOCIATION OF LAW FIRMS AND NETWORK OF LEADING LAW FIRMS Teresita Fernandez Chief, Hearing Boards Miami Riverside Center September 29, 2009 Page 2 Code. Extensions are not meant to be automatically approved. There is a process established by the City's Zoning Code, for a reason. If applicants are allowed to receive extensions based merely on anecdotal evidence, then why have a process? A general statement that financing is difficult to obtain in the current economy is not enough. The applicant must demonstrate that they attempted to secure financing, and were denied. The applicant should have provided grounds for its request, as they had ample opportunity to do so. They simply failed to do so. Their lack of diligence in this regard should not be rewarded through approval of the Extension. The applicant is asking for equitable relief by requesting an extension from the city. It is well established by case law, that those who seek equity must demonstrate good faith and "clean hands." The applicant has not acted equitably with their neighbors. The applicant has not acted in good faith with the City: The Association and the applicant secured a settlement agreement with regard to the requested variances. In fact, then attorney for the Association, Mr. Tucker Gibbs, stated during the final public hearing on the variances before the City of Miami Commission that it should move forward and deny the appeal, as an accord had been reached by the parties. The applicant was present at the city commission meeting. The City Commission relied on the representation that a settlement had been reached to approve the variances in the first place. Since then the applicant has taken a position that the Settlement Agreement was not legally sufficient, and, therefore, the applicant has not complied with the settlement agreement. This action was done after months of negotiations, and following the denial of the appeal, thereby granting the requested variances. This is further evidence of bad faith on the part of the applicant. As such, we hereby request that the applicant's request for the Extension be denied by the City of Miami Commission, for failure to demonstrate due cause for said Extension. Attached, we have included the $500.00 filing fee required to initiate this appeal. Should you have any questions, please feel free to contact me directly to discuss this matter. Very truly ours, C os . Gimenez For the Firm CJG/mh w/Enclosure ($500.00 Appeal Filing Fee) cc: 1000 Brickell Avenue Condominium Association ACTIVE: 2699024_1