HomeMy WebLinkAboutSubmittal-Appellant's Supplemental MemorandumfCITY COMMISSION OF THE CASE NO. 2004-01208
CITY OF MIAMI, FLORIDA 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
!TEM P, i, ON ,, ,0 ,, .
APPELLANTS' SUPPLEMENTAL MEMORANDUM
The MORNII\GSIDE CIVIC ASSOCIATION, INC., ROD ALONSO,
ROB STEBBINS, SCOTT CRAWFORD, by and through undersigned counsel
(and ELVIS CRUZ, pro se), file this Supplemental Memorandum in support of
their appeal of the Zoning Board's decision to issue a Class II Special Permit for
5101 Biscayne Boulevard. This Supplemental Memorandum responds to an
apparent attempt to limit the appellants' rights to a full and fair hearing, and
provides additional basis for the appellants' initial Memorandum of November
13, 2012, which laid out the reasons that the appeal should be granted and the
permit denied, or at a minimum the item remanded to the Zoning Board for re-
consideration of the appeal.
o - oi20 oz- bri 111-a(- R 'pel /OA-5 SupIcrieY1fal alernorayolum
A Court's Dicta Is Non -Binding
It has come to the appellant's attention that the Miami City Attorney
appears to be urging the Miami City Commission to comply with dicta contained
in the Third District Court of Appeals' April 25, 2012 opinion in this case, as
expressed in the agenda for the January 10, 2013 City Commission meeting, on
page 65, History: (8), and also in the proposed legislation:
"As a conclusion to the various appeals to the Circuit Court and District Court of
Appeal, a mandate was issued directing the City Commission to comply with the
April 25, 2012 Order of the Court."
The appellants disagree that the Third District's decision compels any
ruling in favor of the project, as evidenced by the court itself on page 6 of their
opinion:
"As the Florida Supreme Court has stated, our certiorari jurisdiction in
these types of cases is limited. GBV Intl., Ltd., 787 So. 2d at 845 ("Once the
district court granted certiorari and quashed the circuit court order — i.e., once the
court halted the miscarriage of justice — the district court's job was ended.").
Thus, because we can only affect the Circuit Court's, and not the City
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Dwight S. Danie
City Clerk
Commission's, decision, we grant the petition for writ of certiorari, and quash
the Circuit Court's PCA decision." [ emphasis added ]
The opinion then continues: "We note, however, that allowing the special
exception granted by the Zoning Board, after it performed its delegated duty
under the City's Code, to again be rescinded would be unfair." That sentence is
erroneous in that the Zoning Board did not grant a "special exception". A
special exception is a specific type of permit defined in the City of Miami
Zoning Ordinance 11000, and no special exception was applied for or granted in
this case. Even allowing for "special exception" to be a simple misstatement of
the requested type of permit, that sentence and the rest of the paragraph is non-
binding gratis dicta.
The City Commission is required by law to give the appellants a full and
fair hearing, albeit non -de novo. To do otherwise would deny them of their
appeal rights.
Moreover, the appellants look forward to proving conclusively that the
Zoning Board was given erroneous information to consider while performing its
delegated duty.
Interpretation of 907.3.1 and 907.3.2
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record in connection with
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Dwight S. Danie
City Clerk
A key element in this case is the interpretation and application of two
sections of Miami Zoning Ordinance 11000: 907.3.1 and 907.3.2. The approved
plans show that the applicant and the Zoning Administrator failed to correctly
apply these sections, perhaps because of misinterpretation.
Section 907.3.1 - Rule concerning setbacks where
abutting lots have different zoning designations.
In this type of case, the most restrictive condition applies to all
development on both sides of the district boundary. [ emphasis
added ]
It is important to note that no mention is made of the front, side or rear
orientation of the abutting lots. If the abutting lots have different zoning
designations, the most restrictive condition, specifically setbacks, shall apply to
all development on both sides. 907.3.1 speaks broadly and forcefully to the
intent of the zoning code to use setbacks to restrict potentially harmful
development which abuts different zoning districts.
Section 907.3.2 - Rule concerning height of buildings abutting
residential districts.
Where districts allowing building heights over forty (40) feet abut
residential districts on the rear, such additional height shall set
back one foot in the horizontal for every two (2) additional feet in
the vertical dimension. [ emphasis added ]
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Dwight S. Danie
City Clerk
The key word here is "districts". This sentence has as its subject the word
"districts", and the height limit mandate applies to any district which happens to
abut a residential district at its rear. In this case, the SD-9 district fronts along
Biscayne Boulevard and its rear abuts a separate residential district. Therefore,
because the rear of the SD-9 abuts a residential district, any buildings built
within the SD-9 district must have the additional vertical sloping setback, as
specified.
Please note that the words "on the rear" apply to the rear of the subject
district, and not what an applicant may prefer to label the rear of a lot, parcel or
building. In this case, any attempts by the applicant to declare the side streets of
51St and 52nd streets as being the front or rear of a lot, parcel or building are
misleading, and evasive of the letter and intent of both 907.3.1 and 907.3.2.
The plans approved by the Zoning Board lack the required setbacks, a
clear departure from an essential requirement of law, therefore the appeal should
be upheld and the Class 2 permit denied.
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Dwight S. Danie
City Clerk
Respectfully Submitted,
(i9acoat,
LUIS FERNANDEZ
Fla. Bar No. 0271578
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 9th day of January, 2013, to: SUSAN E. TRENCH,
ESQ., Arnstein & Lehr, P.A., 200 S. Biscayne Boulevard, Suite 3600, Miami, FL
33131 (setrench@amstein.com); and JULIE BRU, ESQ., and MARIA J.
CHIARO, ESQ., Miami City Attorney, 444 SW 2 Ave., Suite 945, Miami, FL,
33136, and email (mjchiaro@miamigov.com).
By: n/ / '(a).(
LUIS FERNANDEZ
Fla. Bar No. 0271578
2250 SW 3 Avenue, Suite 303
Miami, FL 33129
(305) 854-5955
(305) 854-5324
LFemandezlaw@aol.com
Submitted into the public
record in connection with
items PZ.16 on 01-10-13
6 Dwight 5. Danie
City Clerk