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Home My WebLink AboutHEPB Appeal Letter & AttachmentMITCHELL BIERMAN, RA. NINA L. BONISKE, P.A. MITCHELL J. BURNSTEIN, P.A. JAMIE ALAN COLE, P.A. STEPHEN J. HELFMAN, P.A. GILBERTO PASTORIZA, P.A, MICHAEL S. POPOK, P,A, JOSEPH H. SEROTA, P.A. SUSAN L. TREVARTHEN, P.A. RICHARD JAY WEISS, P.A. DAVID M. WOLPIN, P.A. DANIEL L. ABBOTT LILLIAN M. ARANGO GARY L. BROWN JONATHAN M. COHEN IGNACIO G. DEL VALLE JEFFREY D. DECARLO CHAD S. FRIEDMAN ALAN L. GABRIEL DOUGLAS R. GONZALES EDWARD G. GUEDES JOSEPH HERNANDEZ JOSHUA D. KRUT MATTHEW H. MANDEL JOHN J. QUICK ANTHONY L. RECIO BRETT J. SCHNEIDER CLIFFORD A. SCHULMAN MARC SOLOMON ABIGAIL WATTS-FITZGERALD LAURA K. WENDELL JAMES E. WHITE WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. ATTORNEYS AT LAW A PROFESSIONAL LIMITED LIABILITY COMPANY INCLUDING PROFESSIONAL ASSOCIATIONS MIAMI-DADE. OFFICE 2525 PONCE DE LEON BOULEVARD SUITE 700 CORAL GABLES, FLORIDA 33134 TELEPHONE 305-854-0800 FACSIMILE 305-854-2323 WWW.WSH-LAW, CO BROWARD OFFICE 200 EAST BROWARD BOULEVARD • SUITE 1900 FORT LAUDERDALE, FLORIDA 33301 TELEPHONE 954-763-4242 • FACSIMILE 954-764-7770 VIA HAND DELIVERY City -Of Miami -Commission c/o Hearing Boards Mr- Anel Rodrigues 444 SW 2 Avenue 3rd Floor Miami, Florida *OF COUNSEL April 22, 2013 Re: Notice of Appeal pursuant to Sec. 34.4(7) of the City of Miami Code (the "Appeal Dear Mr. Rodriguez: ADRIAN J. ALVAREZ SARA E. AULISIO SONJA C. DARBY ROBERT H, DE FLESCO BROOKE P. DOLARA RAQUEL ELEJABARRIETA ERIC P. HOCKMAN HARLENE SILVERN KENNEDY* KAREN LIEBERMAN* JOHANNA M. LUNDGREN MIA R. MARTIN ALEIDA MART(NEZ MOLINA* KATHRYN M. MEHAFFEY ROBERT A. MEYERS* MATTHEW PEARL TIMOTHY M. RAVICH* AMY J. SANTIAGO GALL D. SEROTA* JONATHAN C, SHAMRES ESTRELLITA S. SIBILA ALISON F. SMITH ANTHONY C. SOROKA EDUARDO M. SOTO JOANNA G, THOMSON PETER D. WALDMA40 SAMUEL I. ZESKIN%9`•' Our firm represents Michael Faas, Raffaoul Ajami, Wasim Shomar and Shadi Shomar ("Appellants") in connection with this Appeal. Messrs. Faas (20 years), Ajami (45 years), and the Shomar brothers (29 years) are long term members of St. Jude Melkite Catholic Church ("St. Jude") who pursuant to Sec. 23-4(c) of the City of Miami Code (the "Code") filed a proposal with the City of Miami (the "City") to have St. Jude designated a historic resource, On February 5, 2013, after several deferrals the Historic and Environmental Preservation Board (the "Board") and after a lengthy public hearing unanimously passed and adopted Resolution HEPB-R-13-004, copy attached, approving the preliminary evaluation for the historic City Of Miami Commission c/o Hearing Boards Mr. Anel Rodriguez April 22, 2013 Page 2 designation of St. Jude and instructed the planning staff to prepare the designation report (the "Report"). On April 8, 2013, the Board conducted a hearing to determine whether St. Jude met the criteria outlined in Section 23-4(a) of the Code and approve, amend or deny the Report. At the end of a lengthy public hearing (over three hours), the Board by a 4-2 margin passed a motion to designate St. Jude as a historic resource. In making this motion, the Board made a finding that several of the Section 23-4(a) criterias were met, and therefore, approved the Report. Unfortunately, after the motion had passed, the Board's attorney instructed the Board that five votes were required for designation and that in his opinion St. Jude was not designated. It is important to point out that members of the Board were caught by surprise when the Board attorney opined on this issue. The Board members were never instructed that five votes and not a majority of four was needed for the designation. The Board's attorney then asked the Board for another motion to clear the record as to the action taken by the Board. The Board then made a motion not to designate St. Jude. This motion failed 4-2. Appellants hereby file this Appeal to the City Commission based on procedural and substantive grounds. Procedural Grounds This matter is not ripe for hearing by the City Commission. The majority of the Board members present at the April 8th meeting voted in favor of designating St. Jude historic. This same majority when asked to vote on the motion not to designate St. Jude historic voted against that motion. By not getting the necessary five votes in the approval motion and not obtaining a majority vote on the denial motion, the Board in essence never took formal action one way or another. The Board's mission to arrive at a final appealable decision never took place, The Board must take formal official action before an appeal to the City Commission. Appellants request this Commission to remand this matter back to the Board to be reheardi by the full Board and have the Board perform its function and take a definitive formal action approving or denying the designation.2 I / Section 23-4(c) (3) allows the Board to rehear proposals. 2 / A full public hearing need not occur if the members who were absent from the meeting are given a copy of the video tape of the hearing and are asked to review prior to the meeting. At the meeting, the item is called up and a motion and vote is then requested. Board members may ask questions from the parties, but the public hearing need not be opened. WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. City Of Miami Commission c/o Hearing Boards Mr. Anel Rodriguez April 22, 2013 Page 3 Substantive Issues If the City Commission decides not to remand the matter back to the Board and wants to hear the merits of the designation, then Appellants raise the following substantive arguments: 1. The members who voted against the motion to approve the designation based their vote on criterias and/or personal opinions which were not part of the criterias outlined in the Code; therefore, their decision to oppose the designation was arbitrary and capricious. 2. As to various criteria supporting the designation, to -wit: Sections 23-4(a) (1), (2) and (7), the only substantial competent evidence on the record was the testimony from Appellant's experts, Mr. Richard Heisenbottle and Dr. Paul George. Appellants' also provided substantial competent evidence for the criterias outlined in Sec. 23-4(3), (5) and (6). These criterias were supported by the testimony from Mr. Heisenbottle, the Report prepared by the City and the testimony from Ms. Marina Novaes from the City's Historic Preservation Office. If not remanded, at the "de novo" proceedings before the City Commission, Appellants will once -again -show -through substantial competent -evidence -that thc-vari riterias-outiini d in the Code will be met and accordingly designating St. Jude a historic resource is in order. Thank you for your cooperation in this matter. Should you have any questions, please do not hesitate to contact me. Resp'ectfull,yyours, Gilberto Pastoriza GP/ms 2434001 cc: Raffoul Ajami Michael Faas Wasim Shomar Shadi Shomar Megan McLaughlin WEISS SER.OTA HELFMAN PASTORIZA COLE & BONISKE, P.L. 1 kt,:ka Miami Historic and Environmental Preservation Board File ID 13-00103 Resolution: HEPB-R-1 3-004 February 5, 2013 Item HEPB.1 Mr. Gerald C. Marston offered the following resolution and moved its adoption: A RESOLUTION OF THE MIAMI HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD APPROVING, AS PRESENTED, THE PRELIMINARY EVALUATION OF LOCAL DESIGNATION OF AN INDIVIDUAL HISTORIC SITE FOR 1501 BRICKELL AVENUE, Upon being seconded by Ms. Lynn Lewis, the motion was APPROVED, by a vote of 6- 0: Mr, Timothy A. Barber Yes Mr. Nelson Diaz Absent Mr. David Freedman Absent Mr, Robert John Graboski Yes Mr. Cary Hecht Dr. William William E. Hopper Yes _MJorg &Ku barman__ Absent_ Ms. Lynn B. Lewis Yes Mr. Gerald C. Marston Yes Mr. Hugh Ryan Absent STATE OF FLORIDA COUNTY OF MIAMI-DADE )) Megap,MbLau lin Pres. fficer Personally, appeared before me, the undersigned authority, Megan McLaughlin, Preservation Officer of the Miami Historic and Environmental Preservation Board of the City of Miami, Florida, and acknowledges that she executed the foregoing Resolution. ;2S41-6. SWORN AND SUBSCRIBED BEFORE ME THIS DAY orf---ty'ruerj , 2013. ( Print Notary Name No ary Public S ate of Florida Personally know or Produced I.D. Type and number of I,D. produced DId take an oath or Did not take an oath cx My Commission Expires: VANESSA TRUJILLO MY COMMISSION It EE 10t250 EXPIRES; July 'It MS Itontled Thru Notary Publlo Undorwatora