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HomeMy WebLinkAboutSubmittal-Appellant's MemorandumfCITY COMMISSION OF THE CITY OF MIAMI, FLORIDA CASE NO. 2004-01208 5101 Biscayne Boulevard APPEAL OF CLASS II SPECIAL PERMIT MORNINGSIDE CIVIC ASSOCIATION, INC., et al., Petitioners, vs. CITY OF MIAMI ZONING BOARD, et al., Respondents. SUBMITTED INTO THE PUBLIC RECORD FOR 1TEMJ, ON o„a.,3 . APPELLANTS' MEMORANDUM The MORNINGSIDE CIVIC ASSOCIATION, INC., ROD ALONSO, ROB STEBBINS, SCOTT CRAWFORD, by and through undersigned counsel (and ELVIS CRUZ, pro se), file this Memorandum in support of their appeal of the Zoning Board's decision to issue a Class II Special Permit for 5101 Biscayne Boulevard. For the reasons that follow, the appeal should be granted and the permit should be denied or this matter must be remanded to the Zoning Board for consideration of the appeal. Procedural Background and Standard for Review The procedural background of this case is lengthy and complicated, but the relevant elements are set forth briefly here. On November 20, 2003 the off- o/2ogQ- Subm, it2j_ Opp k Mevrloraridur,-) Zoning Administrator determined that the project complied with the requirements of the Zoning Code and the project was forwarded to the Planning Depaitnient, which ultimately granted a Class II Special Permit. The City of Miami does not send or publish notice to the public about the Zoning Administrator's determinations. (Transcript of Appeal Hearing, May 27, 2010, page 110, copy attached hereto.) The first time the determinations of the Zoning Administrator that lead to the grant of a Class II Special Permit are made public is when the Planning Department issues its final decision. In this case, that occurred on July 21, 2004 (copy attached). Because the Zoning Administrator's determination that the project complied with the setback requirements of the Zoning Code was erroneous, Appellants promptly filed an appeal to the Zoning Board, as provided for by Section 1806 of the Zoning Ordinance, which states that: "The zoning board shall conduct the public hearing on the appeal.... "New materials may be received by the zoning board where such materials are pertinent to the determination of the appeal." On October 4, 2004 appellants appeared before the Zoning Board to contest the finding that the project conformed to the Zoning Code. Developer's counsel immediately objected and moved to dismiss the appeal on the basis that it was untimely and should have been made at the time of the Zoning 2 Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight 5. Danie City Clerk Administrator's original determination, even though appellants admittedly had no notice of that decision or any opportunity to be heard. The Zoning Board granted this oral motion to dismiss, and refused to consider appellants' arguments that the project did not comply with the Zoning Code on the basis that they failed to timely appeal the Zoning Administrator's decision, a decision that they were never made aware of in the first instance. Thereafter, appellants appealed to the City Commission, which granted their appeal. The Circuit Court upheld the City Commission's decision, and the developer appealed to the Third District Court of Appeal. The Third District has remanded this matter for an appellate determination in accordance with the Circuit Appeals Court's July 14, 2006 opinion rather than a de novo review. (See attached July 14, 2006 Circuit Court opinion). In that opinion, the Circuit Court was critical of the Commission's decision in two respects: 1) that no written findings were made in accordance with Section 1305, and 2) that a de novo review was conducted. Thus, the Commission's appellate review of the Zoning Board's determination is limited to determining: (1) whether procedural due process was accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270 (Fla. 2001). 3 Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk The Permit Does Not Conform to the Essential Requirements of Law In a zoning decision, complying with the clear requirements of the Zoning Code is paramount. It is a pure question of law and appropriate for the Commission to consider on appeal of the ZB's determination. In this case, there are three separate violations of the setback requirements on the face of the permit granted. Section 401 of the Zoning Code, as it existed at the time of the original decision, required a minimum front setback of 20 feet, and a minimum rear setback of 20 feet when the project abuts a single family neighborhood. The site plan of this project has a 15 foot front setback along Biscayne Boulevard and only a 10 foot rear setback where it abuts the single family neighborhood of Morningside. Although the developer attempted to label a side with no front door to be the "front" of the building to skirt the setback requirements, it is apparent from the site plan that the front of the building is situated facing the major corridor of Biscayne Boulevard, and this is the requirement of the Zoning Code. Section 907.3.1 requires that the "most restrictive condition" applies where two differing zoning designations abut each other. There is a third obvious Zoning Code setback violation — this time of Section 907.3.2, which requires a 2 to 1 sloping vertical rear setback starting at 40 feet, for any building which abuts a single family district. Appellants attach 4 Submitted into the public record in connection with items Pz.16 on 01-10-13 Dwight S. Danie City Clerk hereto for your convenience pictures of the plans with highlighted demarcation of the required setbacks to which the project has not adhered. Perhaps most importantly, the applicant's and the city's argument at the Zoning Board was based on a physical impossibility. At the Zoning Board hearing of October 4, 2004, the applicant argued, and city staff concurred, that the building plans were reviewed and found to be in compliance with all zoning requirements by the Zoning Administrator on November 20, 2003, and if the appellants disagreed they should have appealed at that time. However, the plans before the Zoning Board, which were approved by the Planning Director for a Class 2 permit, are dated June 30, 2004 — more than seven months later, after they were substantially modified, as both the applicant and the city stated at the Zoning Board hearing. It is therefore physically impossible for the Zoning Administrator to have approved these plans, for the simple reason that they did not even exist on November 20, 2003, and would not exist until seven months later. Therefore, the Zoning Board made its decision to grant this permit based on evidence that was not competent and substantial. Furthermore, that evidence included three departures from essential requirements of law, therefore, that decision must be reversed, the appeal upheld, and the permit denied. Moreover, the Zoning Board departed from the essential requirements of law where it approved a project without any rear setback where the code clearly 5 Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk contemplates: side, rear, and front setbacks. There must be a rear of the project somewhere and yet the Zoning Board approved plans with (3) three "fronts" and (1) one "side". We can speculate that the reason why the Developer never designated a rear on the plans is that they knew they would have to have a 20 foot setback, but even without speculation as to the Developer's motive, the fact is that there is no rear side shown for this project on the architectural plans reviewed by the Board. Lastly, the Zoning Board never made the written findings of fact under Section 1305 (2003 version). The Circuit Court in 2006 specifically held that this was required, and appellate decision, for better or worse, has become the "law of the case". Accordingly, the Zoning Board departed from the essential requirements of law in this respect as well, and the case should be remanded to that body for the required findings. The Zoning Board did not Afford Appellants Procedural Due Process As set forth above, it is uncontested in this matter that the Zoning Board did not permit appellants to challenge the underlying determination of the Zoning Administrator that the project conformed to the Zoning Code, nor is it contested that the appellants received no notice or opportunity to be heard when the Zoning Administrator made his decision. 6 Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight 5. Danie City Clerk To the extent that the City's own code and rules permitted or required (as the city argued) this procedural result, those provisions violate due process requirements. Section 1801 states: Sec. 1801. - Status of administrative decision; time limits on appeal; filing of appeal. Decisions of the zoning administrator or the director of the department of planning, building and zoning shall be deemed final, unless a notice of appeal is filed within not more than fifteen (15) calendar days of the date such decision was rendered. Such notice of appeal, specifying the grounds thereof shall be filed with an officer or agent designated by the city manager. However, "In quasi-judicial zoning proceedings, the parties must be able to present evidence and cross-examine witnesses." Jennings v. Dade County, 589 So.2d 1337, 1340 (3rd DCA 1991) (emphasis supplied). The opportunity to be heard must be meaningful, full and fair, and not merely colorable or illusive. Metropolitan Dade County v. Sokolowski, 439 So.2d 932, 934 (3rd DCA 1983). Because of the Court's order quashing the City Commission's customary de novo review of Class II Special Permit appeals, the Zoning Board hearing is the only opportunity that appellants have for a full and fair public hearing on this matter. Prohibiting the appellants from introducing any argument or evidence in support of their appeal in this matter violated these fundamental due process principles. 7 Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight 5. Danie City Clerk Furthermore, the Zoning Board's failure to afford appellants a full and fair de novo hearing before the Zoning Board departed from the essential requirements of law. Section 1806 of the Zoning Ordinance clearly states that: "The zoning board shall conduct the public hearing on the appeal.... "New materials may be received by the zoning board where such materials are pertinent to the determination of the appeal." Finally, the Zoning Board follows Robert's Rules of Order. This is significant for the following reason: On the day of the hearing, the appeal was dismissed and not considered because the applicant's attorney interrupted appellant's argument and initiated an oral Motion to Dismiss. Strangely enough, the chair and the city attorney allowed the motion to dismiss to be heard and granted, even though the concept of a "Motion to Dismiss" does not exist in Robert's Rules of Order. This was a separate and further failure of due process. For the foregoing reasons, the permit should be denied, or, in the alternative, this matter should be remanded to the Zoning Board with instructions to conduct a full and fair de novo hearing. 8 Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk Respectfully Submitted, ‘R &Zia LUIS FERNANDEZ Attorney for Morningside Civic Association, Inc., et al CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was hand delivered and emailed this 13th day of November, 2012, to: SUSAN E. TRENCH, ESQ., Arnstein & Lehr, P.A., 200 S. Biscayne Boulevard, Suite 3600, Miami, FL 33131 (setrench@arnstein.com); and JOHN A. GRECO, ESQ., Office of the Miami City Attorney, 444 SW 2 Ave., Suite 945, Miami, FL, 33136, and email (JAGreco@miamigov.com). By: 9 Ake 9bat2 LUIS FERNANDEZ Fla. Bar No. 0271578 2250 SW 3 Avenue, Suite 303 Miami, FL 33129 (305) 854-5955 (305) 854-5324 LFernandezlaw@aol.com Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk City Commission Meeting Minutes May 27, 2010 that decision, if there was an issue about what the zoning -- whether or not this -- Chair Sarnoff: All right. Just stay right there for a minute. Does Morningside get notice of the Zoning administrator's decision? Ms. Dougherty: Not at that time, no. Chair Sarnoff Well --1 mean, this board has done this many times. And I know Commissioner Suarez has brought this up. How are you supposed to appeal something when you don't know the results of the findings and conclusions? Any rate, as long as it's clear that he could not and did not know about the Zoning administrator -- Ms. Dougherty: He could have known. He didn't know --1 mean, 1 don't know if he could or didn't know. Chair Sarnoff Did we publish it? Do we get it out there? Do we put people -- Ms. Dougherty: No. Chair Sarnoff -- on notice? Ms. Dougherty: I have no idea whether -- Chair Sarnoff I'm sure you would — Ms. Dougherty: -- they knew or didn't. Chair Sarnoff -- concede with me that notice is a primary procedural requirement of any due process argument that anybody can make. Whether you get substantive due process, you must have notice and the opportunity in which to address the substance. Ms. Dougherty: If I may? Chair Sarnoff: Do you agree with that? Ms. Dougherty: The -- in the general terms, yes -- the appellant, the appeal that he made says Section 7 -- 907.3.2 of the City's zoning ordinance requires additional setbacks for projects built higher than 40 feet when abutting a residential zoning district in the rear. This does not abut a zoning district in the rear. In other words, this is a project between 51 s1 and 52nd on Biscayne Boulevard, and your Zoning Code has a definition at that time for the front yard. The front yard is the smallest zoning -- the smallest lot line in the project -- in the lot, so that is not a rear yard. There is no rear yard. In fact, the Zoning administrator for years have determined that there is no rear yard when you're on three streets. So this is not a rear of a zoning district and, therefore, it is not applicable. Chair Sarnoff.• 1-- Unidentified Speaker: (UNINTELLIGIBLE) setback from the plans themselves. Ms. Dougherty: Those plans, themselves, that they determine -- Submitted into the public Mr. Sastre: What did they apply? record in connection with items PZ.16 on 01-10-13 Ms. Dougherty: -- that they're showing, it says — Dwight S. Danie City Clerk City of Miami Page 110 Printed on 8/24/2010 CITY OF MIAMI CLASS II SPECIAL PERMIT FINAL DECISION File No. 03-0309 To: From: Lucia A. Dougherty, Esq. c/o Greenberg Traurig 1221 Brickell Ave Miami, FL. 33131 Ana Gelabert, Director Planning and Zoning Department PLEASE TAKE NOTICE THAT A INTENDED DECISION HAS BEEN REACHED ON THE FOLLOWING MATTER: Title: New Construction (5101 Biscayne Blvd) Address: 5101 Biscayne Blvd., Upper Eastside Final Decision: ❑ Approval El Approval with conditions ❑ Denial FINDINGS AND CONDITIONS The subject proposal has been reviewed for Class II Special Permit pursuant to Article 15, Section 609.3, 1512 and 923.2 of Ordinance 11000, as amended, the Zoning Ordinance of the City of Miami, Florida. Section 609.3 states explicitly that a Class II Special Permit shall be required prior to approval of any permit affecting the location, relocation or alteration of any structure, sign, awning, landscaping, parking, area or vehicular way visible from a public street. Section 1512 states that unless otherwise required by the Zoning Ordinance, as amended, the Code of the City of Miami, as amended or the South Florida Building Code, as amended, all City of Miami Design Standards and Guidelines, incorporated herein by reference, may be waived pursuant to a Class II Special Permit. Section 923.2.1 states that reduction in loading stalls shall be only by Class II Special Permit. Pursuant to Section 1301.2. of the above cited Zoning Ordinance, the Planning and Zoning Department has made referrals to the following Departments and Boards. • Zoning Division, Planning and Zoning Department. • Upper Eastside NET Office, Neighborhood Enhancement Team. • UDRB, Urban Development Review Board. Their comments and recommendations have been duly considered and are reflected in this intended decision. In reviewing this application, pursuant to Section 1305 of the Zoning Ordinance, the following findings have been made: Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk FINDINGS • It is found that the proposed project is a mixed -use building consisting of residential units (89) and common areas (4,799) sq.ft with parking garage. • It is found that the proposed project was initially reviewed by the Internal Design Review Committee on November 25, 2003. The committee recommended sending it back to the architect in order to give the opportunity to respond to the committee comments. • It is found that a modified project was reviewed by the Design Review Committee on January 13, 2004 but the original comments are still pending and have not been resolve. • It is found that an Intended Decision was issue on March 25, 2004. • It is found that a modified project that included the modifications recommended by the Internal Design Review Committee was reviewed by the committee on May 4 and May 18, 2004; finally, on July 6, 2004, the committee reviewed and approved with conditions the subject proposal. • It is found that the landscape plan submitted with this application complies with the Miami -Dade Landscape Ordinance. • On January 21, 2004 the Urban Development Review Board reviewed and deferred for the next meeting the subject proposal. • On March 17, 2004 the Urban Review Board reviewed and approved with conditions the subject proposal. • It is found that with regard to the criteria set forth in Sec. 1305 of the City of Miami Zoning Ordinance, the application has been reviewed and found sufficient except for the issues listed above and contained in the conditions. Based on the above findings and the considered advice of the officers and agencies consulted on this matter and pursuant to Section 1306 of the Zoning Ordinance, the subject proposal is hereby approved with conditions as presented in the plans and supporting materials submitted by the applicant and on file with the Department of Planning and Development and further subject to the following conditions: 1 The applicant shall comply with the conditions addressed by the UDRB and the Internal Design Review Committee. 2. New plans shall be submitted to the Planning and Zoning Department for review and approval before issuance of any budding permit. NOTICE The final decision of the Director may be appealed to the Zoning Board by any aggrieved party, within fifteen (15) days of the date of issuance by filing a written appeal and appropriate fee with the Office of Hearing Boards, located at 444 S.W. 2nd Avenue, 7`h Floor, Miami, FI. 33139. Telephone number (305) 416-2030. Signature Ana'G labert; ivector Planning and Zoning Department 2 Date Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk i i i i i i i i i i i I I I i i I 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. J U L i Lt aue'•6 HARVEY RUVIN CLERK IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA Petitioner,.- ------------APPELI AgHCASE-NO:-05s409 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. Michael 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 items PZ.16 on 01-10-13 Dwight S. Danie City Clerk App. 53 I I i i i i i I i I i i i I i FERNANDEZ, Judge. 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 C ass II Special Permit: -The -proposed development would be ainfixed-use-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 Submitted into the public record in connection with items Pz.16 on 01-10-13 2 Dwight S. Danie City Clerk App. 54 i I i i i I I i i i i 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, IOW, 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 items Pz.16 on 01-10-13 Dwight S. Danie City Clerk 3 App. 55 • r i 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 supported by 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 items PZ.16 on 01-10-13 4 Dwight S. Danie City Clerk App. 56 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 evident e. The City Commission failed to comply Wl , asing 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 -Cura on v.-CO—of Fort Laudeidale; 3"54"So-2d 57 (Fla. 19781 "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. Intemational , 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 items Pz.16 on 01-10-13 Dwight S. Danie City Clerk 5 App. 57 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 usa imp s t e 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. Valliant, 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. Intemational 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 Momingside Civic Association v. City of Miami Commission, 917 So. 2d 293 (Fla. 3d DCA 2005). COMES MASHED TO'' - COUNSEL' E4. 01= RECORD AND • MANY PARTY NOTREPRES $Y COUNSEL ' — Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk 6 App. 58 Mechanical t Common Areos 4.799 SF BISCAYNE BOULEVARD Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk NORTH ELEVATION ` O F LEVER_ '•.8th LBV."arL 6 5 7th LBVBL 55.-c 61h LBVBL 4 L5 _r.. S1h LBVBL �35-L <Ih LBVBL ‘r,z5 3rd LBVBL � 16-0' 2nd LOVOL BISCAYNE BLVD o -o Submitted into the public record in connection with items PZ.16 on 01-10-13 Dwight S. Danie City Clerk