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HomeMy WebLinkAboutAppeal by Appellant for CommissionAppeal Package Submitted by Appellant for City Commission SAVAGE LEGAL 100 ALMERIA AVENUE. Surrr 220 CORAL. GABLES, FLORIDA 33134 W WWSAVAGELEGAL.COM Paul C. Savage Tel. 305.444.7/88 Fax 3°5.444.7186 PauI(SavugeLe aI.C[m1 October 17.20 13 BY HAND DELIVERY Anel Rodriguez Clerk, Hearing Boards Administrative Assistant II. Hearing Boards Department of Planning and Zoning, Hearing Boards Section City of Miami 444 S.W. 2nd Avenue, 3rd Floor Miami, Florida 33130 pF!' sV.1) PLAHl' AL.3 l LIAr1TN1ENr 13OCT 17 PM12:05 Re: Appeal of Warrant and Determination of the Director of the Planning and Zoning Department and Appeal from Resolution of the Panning, Zoning and Appeals Board: Class Il Special Permit Issued to Wal-Mart Stores, East, LP for Property at or near 3055 N. Miami Avenue (the "Property") Dear Mr. Rodriguez; I am writing on behalf of the interested and aggrieved persons and entities listed on the attached list of Appellants, to submit this letter as an appeal in accordance with: Articles 18 and 20 of Zoning Ordinance 11000 (a/ka/ the "Zoning Ordinance") and/or Article VII and Sections 7.1.2.4(e) (Warrant) and/or Section 7.1.5(b) (decision of the Planning Director and of Planning, Zoning and Appeals Board) and Section 7.1.4.7 (Final Decision) and Section 7.1.5 (Appeals) of the Zoning Ordinance 13114 (a/k/a "Miami 21"). The item appealed is the City of Miami Class 1l Special Permit issued for this Property and the Resolution No. PZAB-R-13-049 of the Planning. Zoning and Appeals Board issued on October 16, 2013, denying an appeal of the Class II Special Permit. With its Application to the Director of the City of Miami Planning & Zoning Department (the "Director"). the Applicant sought administrative approval for Wal-Mart store with 184.370 square feet, which store is to feature grocery and garden departments (the "Wal-Mart- or the "Project").2 The proposed Wal-Mart is situated within the Midtown Miami West district under See Composite Exhibit A (Resolution No. PZAB-R-I3-049. dated October 16, 2013; and City of Miami Class II Special Permit Final Decision for File No. 12-0054 and dated August 12.2013;). See Exhibit B (Application to the Director for a Class 11 Special Permit dated August 21, 2013. cover pages only). Anel Rodriguez, Clerk, Hearing Boards October 17.2013 Page 2 the Zoning Ordinance and Miarni 21 (the "District"). The Director granted the Application on August 12, 2013 by issuance of the Permit. Section 1305 of the Zoning Ordinance requires compliance "with all applicable criteria" before a Class II Permit may issued. A conditional approval Class II Permit may be issued if conditions are required to bring the Application into compliance "with all applicable criteria." Id. The Zoning Ordinance and the corresponding Miami 21 provision make perfectly clear that the very purpose of the Class II Special Permit is to "ensure conformity of the application with the expressed intent of this district. with the general considerations listed in section 1305. and with the special considerations contained in the Design Standards." § 627.2.3.2, Zoning Ordinance and § 627.2.3.2, Appendix C, Miami 21 (emphasis added). This Appeal will explain that the Permit is in non -conformity with the governing Code and law for several reasons. including: (1) the Permit unlawfully grants variances, and by doing attempts an end -run around the additional Board review and public input that occur when the normal variance or Major Use Special Permit process is followed; and (2) the Application suffers from certain legal infirmities such as purporting to be a single project when in fact the project encompasses two projects over three parcels, each owned by a different owner. In bringing this Appeal and alleging the Project's non -conformity with the governing Code requirements, the Appellants stand on the shoulders of the learned members of the Urban Design Review Board ("UDRB"). This Board examined this Project and Permit Application and voted against this Permit after finding it in non -conformity with the Code's requirements by a 6- 0 vote at a Special Meeting on the Project on February 20, 2013. Instead of addressing the valid concerns voiced by the UDRB. the Permit is silent on them. An appeal of the Permit was lodged with the PIanning, Zoning and Appeals Board ("PZAB") and a hearing held thereon on October 2. 2013. The appeal of the Permit was denied by the PZAB by a vote of 6 to 4, with two members absent, See Composite Exhibit A. With this de novo appeal. the Appellants seek to challenge the Permit and the Resolution of the PZAB. 1. The Permit Unlawfully Grants Variances from the Governing Code Requirements. The issuance of the subject Class II Permit accomplishes an unlawful end -run around a critical point of entry for Board review and public input: the variance and Major Use Special Permit process. The CIasss II Permit, as issued, approves features of the Project that directly violate and contradict the requirements of the Code, and thus the Class 11 Permit operates to grant de -facto variances. This, of course, is disallowed. The governing Code provisions are peppered with the well -established canon of Florida law that variances must go to public hearing. The Zoning Ordinance provides: "It is the intent of this zoning ordinance that the zoning administrator has no authority to relax the terms of this ordinance. Authority to grant variances i.s lodged in the zoning board, subject to procedures and standards set out in this zoning ordinance and applicable Florida Law." § 1903, Zoning Ordinance (emphasis added). Any variances (as defined in Article 19) sought from the provisions of the SD 27 regulations shall SAVAGE .- LEGAL Anel Rodriguez. Clerk. Hearing Boards October 17, 2013 Page 3 require such deviation to be considered within the process for a Major Use Special Permit as defined in Article 17 ...." § 627.2.3.2, Zoning Ordinance and corresponding section of Miami 21 (emphasis added). "For applications involving zoning changes, Special Exceptions and/or variances the Director of the Department of Planning and Zoning shall submit his/her recommendations first to the Zoning Board and then to the Planning Advisory Board at properly noticed regularly scheduled public hearings or the boards." § 1702.6, Zoning Code (emphasis added). By a unanimous vote of 6-0, the UDRB Board members determined that the proposed Wal-Mart Project did not conform to Code requirements (and thus would require variances before it could be approved in its current form). Instead of proceeding in line with this determination and with the foregoing provisions requiring additional hearings and public input, the Permit issuance runs roughshod over them. The Appellants will next enumerate those de - facto approvals within the Class II Special Permit that constitute variances. Non -conformity No. I: SD 27.2 Design Standard Article III, § 2.3: Scaling Elements. As set out previously. both the Zoning Ordinance and Miami 21 mandate conformity with the Design Standards in connection with review of a Class II Special Permit. § 627.2.3.2, Zoning Ordinance and § 627.2.3.2. Appendix C. Miami 21. Design Standard 2.3 provides: "Avoid undiIf rentiated blank walls" and goes on to provide: "Large, blank surfaces and non - modular panels, such as concrete panels and stucco, are discouraged unless they have a compelling design purpose. This is especially true at the ground floor level which requires additional detail and visual amenities." Id. at Page 26 (emphasis added), The proposed WaI- Mart Project has a featureless precast concrete multi -story wall along the South Elevation (which will be viewed upon approach from the South on North Miarni Avenue). Not only will the three-story concrete wall be visible from those approaching from the South on North Miami Avenue or Midtown Boulevard, but the proposed featureless wall will abut two parcels to the South that are to be used exclusively ax public space for the "use and enjoyment of the public."4 It is alarming that on the sole frontage of the Project that will abut a parcel legally designated for the public's use and enjoyment. the Applicant has invested the feast improvement or differentiation. This less -than -minimum cost-cutting approach violates the express governing Code provisions and exhibits a lack of sensitivity to the public who will approach and interact with the South side of the Proposed Project. Non -conformity No. 2: SD 27.2 Design Standard Article III § 2.4: Building Continuity. Both the Zoning Ordinance and Miami 21 mandate conformity with the Design Standards in connection with review ofa Class I1 Special Permit. § 627.2.3.2, Zoning Ordinance and § 627.2.3.2. Appendix C, Miarni 21. Design Standard 2.4 provides: "All sides ofa structure shall be continuous in design. No side shall be unimproved. Therefore, all architectural details, 4 See Composite Exhibit C (South Elevation Plans). See Composite Exhibit D (Depictions of G Tract and H Tract Within Wal-Mart Plans; and Selected Pages of Recorded Easement Agreement at Book 22349 and Page 660). SAVAGE LEGAL Anel Rodriguez, Clerk, Hearing Boards October 17.2013 Page 4 such as roof lines and parapets shall continue around all sides of a structure." Id. at Page 28 (emphasis added). The proposed Wal-Mart Project has: a concrete facade with moderate glazing and awnings fronting North Miami Avenue and NE 31 st Streeti: and a featureless precast multi -story concrete wall along the South Elevation (which will he viewed upon approach from the South on North Miami Avenue). See Exhibit C. These disparate architectural styles are in direct violation of the Design Standard's requirement for continuity, Non -conformity No. 3: § 627.1.12(3) SD 27.2: Requirement for Second Story Parking Lot Setbacks or Liner Uses. The Wal-Mart Project features parking facilities that will be situated on the second and third floors. Under the minimum requirements of the Zoning Ordinance and Miami 21 for this District, "liner uses on all parking structures is required." ti 627.2.7, Table Insert ("Uses" Column for Midtown Boulevard Primary and North Miami Avenue Primary, Miami 21). The Zoning Ordinance and Miami 21 provide: "Upper level parking facilities that do not incorporate liner uses shall be setback no less than 85' feet and shall not exceed a height of 501." §627.1.12(3), Zoning Ordinance and corresponding section Miami 21 (emphasis added). The Wa1-Mart plans do not have either liner uses or the required setback for the second and third floor parking structure.° "Liner Uses" are defined by the Code as "Building uses that serve to conceal uses such as parking garages and service areas." Id. at Definitional Section (emphasis added). The Definitional Section in Article 25 of the Zoning Code provides: "Use. The purpose or activity for which land, water or buildings are designed, arranged, or intended. or for which land or buildings are occupied or maintained." (emphasis added). The "purpose or activity" of a building or use is not simply a facade or screen. As the members of the UDRi3 explained at the February 20, 2013 Special Meeting, the drafters of the Code could have stated "barrier" or "facade," but instead purposely and knowingly placed the word "use" in this section. The word "use" here works to implement one of the fundamental concepts underpinning the Midtown Overlay District. which is to feature visible building uses on the first and upper floors. And if no true use is intended, then the Code imposes a setback so as to avoid exactly what the Applicant is proposing here: a multi -story wall without "uses" (or the required setback). The Board members of the UDRB immediately identified the provisions of Section 627.2.12 as an issue with the Application. See, Special Meeting of the Urban Design Review Board, (available at http:flwwww.youtube.com/watch?v=BjEcWJJodcc) (February 20, 2013). The proposed Wa1-Mart Project flies in the face of both the express text of the Code and the spirit of the Midtown Overlay District in connection with second story liner uses. Yet the Class II Permit proceeds to "whistle past the graveyard" on the issue. with no findings or mention of it whatsoever. Non -conformity No. 4: SD 27.2 Design Standard Article III § 7.1-7.3: Building Tops and Parking Garage Roof. As was noted by the UDRB Board members, the present Wal- 5 See Exhibit E (North Miami Avenue Elevation). See Composite Exhibit F (Depictions of Lack of Liner Uses Within Wal-Mart Plans). SAVAGE LEGAL Anel Rodriguez. Clerk. Hearing Boards October 17, 2013 Page 5 Mart plan has no building top. roof, or decorative cover for the parking garage. The Intent recitation of Section 7.2 of the Design Standards expressly provides: `Conceal rooftop parking" and use "distinctive building tops to identify the area as midtown Miami." The proposed Project's uncovered parking and stained concrete around the edges of the parking lot surface falls far short of the express provisions and stated Intent of the Code. See Exhibit F (depicting third floor uncovered rooftop parking). Non -conformity No, 5: SD 27.2 Design Standard Article I1: Street Types for NE 31st and 34th Streets, l0-foot Second Floor Setback. The governing Design Standards could not be more clear in this instance as they feature a diagram for street requirements and second floor setbacks for NE 31 st and 34th Streets. This is to provide a terraced appearance and prevent a "concrete canyon" affect. Yet, inexplicably, the Wa!-Mart plans have no second floor setback. with the second and third floor coinciding with the frontage of the first floor.? This is another easily -demonstrable, black -curd -white code requirement for which a variance has been improperly granted by way of the Class II Special Permit. Non -conformity No. 6: § 627.1.115 SD 27.2: Variance From Maximum Number of Loading Berths. Section 627.2.15 of the governing Code makes perfectly clear that for ``non- residential floor area up to two hundred fifty thousand (250,000) square feet, three (3) berths total," (emphasis added). As stated earlier. the Wa1-Mart Project is 184,370 square feet in size. Thus. the three berth maximum applies. Yet the Class II Permit approves four (4) adjacent loading bays with no mention or condition addressing this deviation which amounts to nothing less than a variance! if the variance for the fourth (4th) loading bay were not enough. there is yet another, fifth (5th) loading bay for the East side of the Project fronting Midtown Boulevard. Incredibly,. Wal-Mart maintains that this is a separate building or Project (for purposes of counting loading bays), yet maintains that it is part and parcel of the same building. Project and Application for all other purposes. Non -conformities) No. 7: § 627.2.9 SD 27.2: Variances From Streetscape Design Standards. A fundamental feature throughout the Design Standards for the District is on -street parking (parallel parking) with "substantial pedestrian buffers."' The Design Standards require two lanes of traffic with two lanes of on -street parking. The Wal-Mart Project, however, has three lanes of traffic and no on -street parking on N.E. 31 st Street. There is no precedent or Code authorization for the re -alignment of N.E. 31 st Street to be authorized (without variance or Major Use Special Permit proceedings) under the guise of a Class II Special Permit, when such re- alignment is in direct contradiction with the Design Standards. Also lacking are required setbacks, overhead side walk treatments, trees. and planter bulb outs.9 7 Composite Exhibit G (Depictions of Lack of Second Floor Setback In Wal-Mart Plans). Composite Exhibit H (Depictions of Wal-Mart's 4 Adjacent Loading Bays and 5th Loading Bay). Composite Exhibit 1 (Depictions of Wal-Mart's Deviation from Streetscape Requirements). SAVAGE - LEGAL Anel Rodriguez, Clerk. Hearing Boards October 17, 2013 Page 6 The Appellants reserve the right to identify additional deviations from the Code and Design Standards between the time of this submission and the hearing before the City of Miami City Commission. IL Legal Infirmities of the Application. Ownership Issue. The subject Wal-Mart Project covers three distinct parcels of land, identified by folio nos. 01-3125-078-0060 (the "060 Parcel or -Tract F"), 01-3125-078-006) (the -.061 Parcel" or the "CDD Tract") and 01-3125-078-0063 (the "063 Parcel" or the "Liner Tracte"). The Application is submitted with permission of the Owner of Tract F and with the appropriate Ownership Affidavits_ But the Application erroneously states that one company owns the entire "property" that is subject to the Application, without the required Owner's Sworn -to -Consent and Ownership Affidavit of the other two property owners, Additional Affidavits are required, however, from the owners of the CDD Tract and the Liner Tract. Single Project Issue. As was noted by the UDRB Board and the above discussion of the loading bay variance, the Applicant seeks to treat the Project as one Project for certain analysis, and as two parcels and Projects "when convenient" (such as for purposes of the loading bay limitations). As the UDRB Board noted at the Special Meeting on February 20, 2013, you "can't have it both ways." The Planning and Zoning Appeals Board should not countenance this approach and should require this single Project to confirm to Code -imposed limitations. For all of the foregoing reasons. the Appellants, through the undersigned attorney, hereby appeal the Permit. Furthermore, the Appellants reserve the right to supplement this appeal letter with briefs, petitions. exhibits, testimony, memoranda or other support materials or evidence prior to the Planning and Zoning Appeals Board's consideration of this appeal. A check for the applicable appeal fee is enclosed. Please contact me at paulsavagelegal.con or 305-444-7188 when the item is scheduled to be heard. Paul C. Savage, Esq. cc: Victoria Mendez, City Attorney SAVAGE - LEGAL Anel Rodriguez, Clerk, 1-fearing Boards October 17, 2013 Page 7 ATTACHMENT A: LIST OF APPELLANTS The below interested and aggrieved persons and entities hereby Appeal the Permit: Name (Natural Person) Name (Entity) Property Address Grant Stern 1750 North Bayshore Drive Miami, Florida 33132 Peter Ehrlich 770 NE 69th Street 5-D Miami, Florida 33138 Rosi Barrios Vintage Liquor & Wine Bar Vintage 11 Midtown 3301 NE 1st Avenue, Building 4, Suite 105 Miami, Florida 33137 Sandi Madger Blow Dry Bar Blo Midtown Miami 3301 NE 1st Avenue, Suite #102 Miami. Florida 331.37 David Le Batard Lebo Studios 2751 North Miami Avenue Miami, Florida 33I27 Yasmine Garate 243 NW 30th Street Miami, Florida 33127 Anthony Davide 64 NW 34 Terrace Miami, Florida 33127 Grant Stern NoWalmartinMidtown.conm 9630 E. Bay Harbor Drive Bay Harbor Islands, Florida 33154 SAVAGE LEGAL EXHIBIT A PZAB Resolution No. PZAB-R-13-049 and Class II Special Permit SAVAGE - LEGAL r''rt Ci' . vs ,rug Miami Planning, Zoning and Appeals Board Resolution: PZAB-R-13-049 File ID 13-0103thi October 2, 2013 Item PZAB.1 Mr Juvenal Pina offered the following resolution and moved its adoption. A RESOLUTION OF THE MIAMI PLANNING, ZONING AND APPEALS BOARD DENYING THE APPEAL OF THE CLASS II SPECIAL PERMIT APPLICATION NO. 12-0054 ISSUED BY THE PLANNING AND ZONING DEPARTMENT ON AUGUST 12, 2013, TO ALLOW NEW CONSTRUCTION ON THE PROPERTY LOCATED AT APPROXIMATELY 3055 NORTH MIAMI AVENUE, MIAMI, FLORIDA. Upon being seconded by Mr Charles Gibson, the motion passed and was adopted by a vote of 0-4' Ms. Jennifer Ocana Barnes Yes Mr. Chris Collins Absent Ms. Maria Lievano-Crux Yes Mr. Charles A. Garavaglia Yes Mr. Charles A, Gibson Yes Ms. Maria Beatriz Gutierrez Yes Mr. Ernest Martin No Mr. Daniel Milian No Mr. Juvenai Pina Yes Ms. Janice I. Tarbert Absent Ms. Melody L. Torrens No Mr. David H. Young No Francisco Garcia, Director Planning a d Zoning Department STATE OF FLORIDA COUNTY OF MIAMI-DADE Personally appeared before me, the undersigned authority, Anel Rodriguez, Clerk aline Planning, Zoning and Appeals Board of the City of Miami. Flonda, and acknowledges that he executed the foregoing Resolution. SWORN AND SUBSCRIBED BEFORE ME THIS if[') `TJAY OF 70j3. Print Notary Name Notar "Pu iC to of Florida Personally know ci(or Produced I n. Type and number of I D produced Did take an oath or Did not take an oath .y My Commission Expires. VMdES$A TRUJILLO MY COMMISSION t FE 10625C EXPIRES. July 1 t, 2015 ded Tilim Notary Palk Uridtrer4es6 0 CITY OF MIAMI CLASS II SPECIAL PERMIT FINAL DECISION Fife No, 12-0054 To: WaI-Mart Stores East, LP, a Delaware L.P. c/o Alfredo L. Gonzalez Genovese Joblove & Battista P.A. 100 Southeast Second Street 44th Floor Miami, FL 33131 From: Francisco J. Garcia, Director Planning and Zoning Department PLEASE TAKE NOTICE THAT AN FINAL DECISION HAS BEEN REACHED ON THE FOLLOWING MATTER: Title: New Construction (Wal-Mart Store) Address: 3055 N. Miami Avenue, Miami, FI. Wynwood Net (Allapattah NET Office) Final Decision: Approval O Approval with conditions ❑ Denial FINDINGS AND CONDITIONS: 1- The subject proposal has been reviewed for a Class II Special Permit pursuant to Sections 609.3, and 1512 of Zoning Ordinance 11000 and Miami 21 Code, Appendix C. Midtown Overlay District 6.27.2, Midtown Miarnl West, as amended, the Zoning Ordinance of the City of Miami, Florida. 2. Section 6.27.2.3 requires a Class II Special Permit prior to approval of any permit for the construction of a new building. 3. Pursuant to Section 1301.2 of ZO 11000, as applicable, the Planning and Zoning Department has matte referrals to the following Departments and Boards: • Zoning Section of the Planning & Zoning Department • Department of Public Works • Office of Transportation • Wynwood NET Office, Neighborhood Enhancement Team • Urban Development Review Board Comments and recommendations received from Departments and Boards have been duly considered in this final decision. In reviewing this application, pursuant to Section 1305 of ZO 11000, as applicable, and Miami 21 Code Appendix C: Midtown Overlay District 6.27.2 Midtown Miami West the following findings have been made: f 2-0054 Page A-2 of 2 FINDINGS • The proposed new construction project consists of 203,277 square foot building which includes a 158,322 sq. ft. Wal-Mart store containing general retail, full service grocery and vision center, The building will also include double volume retail liner use space fronting Midtown Boulevard and finer space for retail support or other permitted uses on North Miami Avenue. The project will also provide approximately 577 new off-street parking spaces above the second and third level of the ground -floor retail. ▪ The proposed project wilt be beneficial to the surrounding area by providing new retail and service facilities while creating Jobs for the area • The proposed project, as presented reflects revisions and refinements made based on comments from reviewing Departments and the Urban Development Review Board, and is appropriate in scale and size pursuant to the Section 1305 and the Midtown Overlay District 6.27.2 Midtown Miami West. The proposed project is in compliance with the Miami Comprehensive Neighborhood Plan in that it promotes good urban infill and is consistent with the Buena Vista East Regional Activity Center (RAC), designation as applied to this property. ▪ This application has been reviewed pursuant to Section 1305 of ZO 11,000 and the Miami 21 Code, Appendix C: Midtown Overlay District 6.27.2 Midtown Miami West and found to be sufficient, Based on the above findings and the considered advice of the officers and agencies consulted on this matter and pursuant to Section 1306 of Zoning Ordinance 11000, as applicable, and the Miami 21 Code Appendix C: Midtown Overlay District 6.27,2 Midtown Miami West, the subject application is hereby approved subject to the plans and supplementary materials submitted by the applicant and on file with the Planning and Zoning Department and the conditions listed in Exhibit "A (attached hereto and made a part thereof) entitled 'Class 11 Special Permit No. 12-0054 DEVELOPMENT ORDER " NOTICE The final decision of the Director may be appealed to the Planning Zoning and Appeals Board by any aggrieved party, within fifteen (15) days of the date of issuance by filing a written appeal and appropriate fee with the Hearing Boards. Section of the Planning and Zoning Department located at 444 S.S. 2nd Avenue, 3'1 Floor, Mlaml, FL 33130. Telephone number (305) 416-2030 Signature rancisco J. Garcia, Director Planning an Wing Department Page 2 of 4 Date 12 ime Cfass II Special Permit No. 12-0054 DEVELOPMENT ORDER PROJECT DESCRIPTION 12.0054 Page A-2 of 2 EXI1TBIT "Art The proposed new construction project ("PROJECT") consists of 203,277 square foot building which includes a 158,322 sq. ft. Wal-Mart store containing general retail, full service grocery and vision center, Additionally, the building will include double volume retail liner use space fronting Midtown Boulevard and liner space on the second level for retail support or other permitted uses on North Miami Avenue. The project also provides approximately 577 new off- street parking spaces above the second and third level of the ground -floor retail. The PROJECT shall be constructed substantially in accordance with plans and design schematics on file prepared by Gensler, Kimley-Horn and Associates, Inc., and Zyschovich Architects, dated 3/14/13, all modifications shah be subject to the review and approval of the Director of the Department of Planning and Zoning prior to the issuance of any building permit. FINDINGS: The PROJECT conforms to the requirements of Section 1305 of ZO 11000, as applicable, and Miami 21 Code Appendix C: Midtown Overlay District 6.27,2 Midtown Miami. The existing comprehensive plan future land use designation on the subject property allows the proposed uses. The PROJECT, proposed by the APPLICANT, complies with the Miami Comprehensive Neighborhood Plan, is consistent with the orderly development and goals of the City of Miami, and complies with local land development regulations. Pursuant to Section 1305 of Zoning Ordinance 11000, as applicable, and the Miami 21 Code Appendix C: Midtown Overlay District 6.27.2 Midtown Miami West, the specific site plan aspects of the PROJECT have been considered and will be further considered administratively during the process of issuing individual building permits and certificates of occupancy, as may be required. CONDITIONS. 1 Final construction plans prior to issuance of any building permit 2. Review and approve relocation, or mitigation of any trees that may be in conflict with the proposed development. 3. Use of NE 31° right turn exit shall be limited to visitors. No commercial delivery vehicles shall be permitted a right turn on NE 3161 Street to access Midtown Boulevard. Install sign and headache bar at exit ramp on NE 311' Street advising "No Right Turn on 31° Street" for delivery vehicles Page 3ot'4 12-0054 Page A-2 of 2 4 Install sign and headache bar at entrance and exit on North Miami Avenue to prevent ingress and egress by commercial delivery vehicles, Compliance with approved adjustments to design standards concerning the maximum width of driveway approaches. (February 15, 2013 Public Works Approval). 6. Prior to the issuance of any Certificate of Use for the liner building portion of the project subject to this Class II Special Permit and its corresponding Development Order it is required that all visible areas of unimproved interiors of the liner building facing Midtown Boulevard shall be covered with non-commercial graphics, as approved by the Director of Planning & Zoning until initiat burld-out and occupancy of the liner building space(s). Prior to issuance of any Temporary Certificate of Occupancy or Certificate of Occupancy, for the liner space, submit revised "Zyscovich" floor plan and detail floor plan for liner units on the east side of the project to show an internalized delivery corridor from the loading elevator. Compliance with this condition is the responsibility of the owneritenant of (he liner building facing Midtown Boulevard and shall not prevent the owners/tenant of the large scale retailer facing Miami Avenue from obtaining budding permits, Temporary Certificates of Occupancy and Certificates of Occupancy as required to build -out and occupy the large scale retail space, Page 4 of 4 EXHIBIT B Front Pages of Class II Special Permit Application August 21, 2012 GENOVESE JOBLOVE BATTI STA PA Attorneys ar! Law August 21, 2012 Mr: Francisco ]. Garcia 'jar txiu Director :City of Miami 444 SW 2"d Avenue Nliarni, Florida 33131 Letter of Intent Dear Mr. Garcia: The undersigned represents Wal-Mart Stores East LP, a Delaware limited partnership ("Applicant") in regards to the enclosed Class II Special Permit Application ("Application"). The Application encompasses the Property ("Property") located at 3055 North Miami Avenue, Miami, Florid and more particularly described in Exhibit "A". The Applicant is proposing a Wa1-Mari store with 184,370 square feet of space that will include traditional general retail merchandise with a full service grocery, garden center, and liner space on the first and second floors (the "Project"). The Project will be served by 577 off-street parking spaces located above the store, which preserve the available public parking for other uses in the area. This site has a City Comprehensive Plan designation (Restricted Commercial) and is zoned Midtown Miami West (SD 27.2) under the City of Miami ("City") Zoning Code ("Code") both of which allows for the development of a large scale retail facility- The Application meets all zoning and land development requirements for the Project. I00 Southeast Second Street, 44th Floor • Miaai. Florida 33131 • Telephone: 3053492300 • Facsimile:3053492310 lt4r. Francisco Garcia August 2I, 2012 Page 2 The Project offers a unique, taikormade, building designed by Gensler Architects to ensure compatibility with the overall design aesthetic that characterizes Midtown Miami. This multi -level design includes: Second floor covered parking and Third floor roof parking; • Pedestrian open space and architectural entry elements provided at the prominent corners (N Miami NE 31 n and Midtown B]vdiNE 31'1); • Enclosed escalator and elevator core for easy access from each parking level to sales floor; • Additional linear retail space with individual entry points are provided for each tenant space, and vision glass storefront extending along the sales floor, with the tenant brand signage located above; • Open air covered walkways are provided along the building frontage at N Miami Ave; enhanced articulations of all facades along street frontages have been designed in a similar style as the surrounding retail developments; Pedestrian friendly promenades to include park benches and bicycle racks; • Enhanced landscape plans including the planting of new trees and other site amenities. The Project will provide the area with needed services including: grocery store, garden center, pharmacy and vision center. It shall serve as a catalyst for pedestrian flow that will draw customers to the Project as well as to other businesses in the Midtown Area. This is particularly important to this site which is Iocated at the southernmost end of the shops at Midtown and is separated from the rest of the shopping areas by a public garage. Smaller, boutique retailers cannot provide the necessary pedestrian flow that will ensure the success of this isolated parcel in the Midtown Shops area. The Project is compatible with existing shops at Midtown Miami. Nationwide, there are many examples of successful shopping facilities with the existing product mix presently at Midtown and a WaI-Mart. The Project, if approved, will provide substantial economic benefits to the City and the surrounding neighborhood as follows: A. Economic Benefits and Taxes_ The Project is a fifty million dollar ($50,000,000.00) investment including an eight million dollar ($8,000,000.00) garage, The City is projected to increase its tax collections on this site from $110,000 to an estimated $550,000.00. B. Suppliers. In 2012, Wal-Mart spent over seven billion dollars for merchandise and services in the State of Florida. This store will facilitate opportunities for vendors to do business with Wal-Mart. Wa1-Mart also has opportunities for vendors to GENOVESE JOBLOVE 8 BATrISIA, PAL • 100 Southeast Second Street 44th Floor • Miami, Florida 33131 • Telephone 3053492300 • Facsimile 3053 923l0 Mr. Francisco Garcia August 21, 2012 Page 3 participate: in heir supplier diversity programs. This program helps foster the inclusion of minority and women owned businesses in Wal-Mart's supplier network. I can personally attest to the benefit of this program as I got my first opportunity to represent Wal-Mart through this program. C. Jobs. The Project will create approximately 400 construction jobs and 350 permanent jobs, The permanent positions will include management, pharmacy, human resources, custorner service, cashiers and sales associates. D. Community Involvement. Wal-Mart's foundation partners with local charitable • organizationsto benefit the communities where their stores are located. In 2011, Wal-Mart stores contributed over forty eight million dollars (S48,000,000 00) in cash and in -kind contributions for the benefit of the communities they serve. We- urge your support of the application and stand ready to respond to any issues you might have. Sincerely, GENOVESE PRUNE & PA` TISTA, PA • 100 Southeast Second 5tnet. 44th Floor • Hand, Florida 33131 • ThIephor 30534923W • Farc+mil_e 305.349.2310 COMPOSITE EXHIBIT C South Elevation Depictions Within Wal-Mart Plans SOUTH BLOCK SOUTH r Errro • A.m.. :2 VII 3 • 11..11.11111M COLC RED PR EC A.S1 ENLARGED ELEVATION -0" Ab' • 11 El- 45' LEVEL 3.7 • V! W Le/EL 1)2_4111, 2Z • fi" LEVEL 01 du cr A 11 c Lbw Shops at Midtown iimf,Fforkill UDRB Submittal G I Low/ , IVAN &worm , Swat lkirwatkin • ZYSCOVICH A r • e — 3 r gar WA. Ulrich S4. Z913 AKIO$ 5 II ERWLIME Walmart* SOUTH BLOCK SOUTH n: WO:OWH MInMI it7U rnILLVAli47N wu 1'-FTY �yy Gunder 1 �w M1D747 watillart:;:r. SOUTH nLOCI( SOU1I-1 • !.. ll . . , i/I 'Al AO _SI Gensler 1 c r• Liner Shops of Midtown Mirai, Flpr+rrn 0[r0R. supmrttar M jai aas+.r nl armarMYr+>f+a w4a-*M.wn.lw *—.r er Yr ONOY. 4.�w wY yx Y�nr krn,r,ry,,,rvytir! Yr xtrarTvnlrsr Ar.Rr1+'rx. Snrrtlr Divotlon. ZYSCOVICH NY hal «J.�r4 fpri�! YyM.rl Mach 2-6k7 COMPOSITE EXHIBIT D Depictions of G Tract and H Tract Within Wal-Mart Plans and Selected Pages of Recorded Easement Agreement at Book 22349 and Page 66►0 G �Acr mac Page 1. of 1 '1,1,7.,•=?... • _PUB. t..ou tit BLOCK sou IFI COO TRACT 88.16.(P&M) 379, EG1L. "LEI 1 SHO'3.3.47*W- 9.1.11' I roovo Al.rvz. & DISK l_w srimiPED "SCHWEBICE SHISKIN L8 87" 1 I FOUND NAIL & DI:SK STAMPED 'SCI-IttriBl<E SHISKffii LB 87" hitps://1114.googicusereontent.comi-w9-1j1tbCSO/UD5ZPewvFKI/AAAAAAAARdw/kBxk.., 8/25/2013 1:_ I al J r. Utvird 40' Nf 9 n r.r!' .,, S SJ 1 f - try) I I FOUND N}7I & STAMPED "SCH r`d Af C1.. kI i D Q� 1.44' E. 1.98' S. P u H !11`u te FOtJND NAIL & II • DISK STAMPED „LB 87 PRM" 5.89:. R 25.�JCI =33.31 `-'ruuNO NAIL. & DISK STAMPED -LB 6l Pit: 1 1 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: Theodore E. Deutch, P.A. Broad and Cassel 7777 Glades Road, Suite 300 Boca Raton, Florida 33434 111111111111111111111111111111111111111111111 CFN 2004R0421749 OR Bh 22349 Pss O660 — 757; (980ss) RECORDEO 05/28/2004 12=10159 HARVEY RUVINP CLERK. OF COURT f1YAt1I—OAD CDUHTYo FLORIDA CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT SHOPPES AT MIDTOWN MIAMJ (Miami, Florida) SOUTH BLOCK SOUTH 2115T O15 (Saar Berk Sail] Book22349/Page66O Page 1 of 98 be appurtenant easements and not easements in gross. Any easement granted pursuant to the provisions of this Section 3 may be abandoned or terminated by execution of an agreement so abandoning or terminating the same by the Owners of the dominant and scrvicnt estates and consented to in writing by the Mortgagee, if any, of the dominant estate. Any relocation of any easement shall be made at the expense of the Owner requesting such relocation and shall be subject to the approval of the Owner of the scrvient estate. 3.8 Prohibition Against Granting Easements, No Owner, including South Liner Tract Owner, G Tract Owner and H Tract Owner, shall grant any easements of the type set forth in this Section 3 for the benefit of any property not within the Site without the prior written approval of the other Owners and the Mortgagee(s), if any, of the servient estate. 3.9 Duration of Easements. The easements granted in this Section 3 shall remain in affect for the term of the COREA, as the saute may be extended in accordance with Section 12. 4. USE AND OPERATION 4.1 Permitted Uses. 4.1. t Retail Tract. The Retail Tract shall bc occupied, used and/or leased only for retail, entertainment and office uses, including but not limited to: (A) retail sales and merchandising, including, without limitation, kiosks, retail carts, carrels and outdoor sales; (B) retail services; (C) restaurants; (D) movie theaters; (E) bars; (F) interactive and other forms of entertainment venues; (G) food markets; (H) open space and landscaping; (I) spa and health club; (1) office; (K) storage of maintenance supplies and equipment; and (L) uses incidental to the foregoing, and any other use permitted by law, except as specifically stated in this Section 4.1.1. Outdoor seating and service, if applicable, shall be permitted with the foregoing uses. Nothing herein shall be deemed to authorize any use that is not permitted by applicable zoning, land use and other Laws. Notwithstanding anything set forth herein to the contrary, no unit within the Retail Tract shall be used and/or leased by any party whose primary use on the Retail Tract is either (i) real estate sales, leasing or brokerage; (ii) mortgage lending or origination; or (iii) the sale of hazard or life insurance, but nothing in this sentence shalt prohibit the use and operation of a hank, savings and loan, financial institution or financial advisor. 4.1., South liner Tract. South Liner Tract shall be used for installation and maintenance of CDD improvements for the use and enjoyment of the public, except to the extent that Retail Tract Owner reasonably approves the development of such portion of South Liner Tract as may be permitted by applicable zoning ordinances, provided such use would not impede the development of or materially and adversely affect the Retail Tract. Nothing herein shall bc deemed to authorize any use that is not permitted by applicable zoning, land use and other Laws. 4.1.3 G Tract. G Tract shall be used only for installation and maintenance of. CDD Improvements for the use and enjoyment of the public. Nothing herein shall he deemed to authorize any use that is not permitted by applicable zoning, land use and other Laws. 10 ELOCIARCALESr+1 NI&6.5 5015105015 (South Sods. South) Book22349/Page676 Page 17 of 98 4.1 A H Tract. H Tract shall be used only for installation and maintenance of CDD improvements for the use and enjoyment of the public. Nothing herein shall be deemed to authorize any use that is not permitted by applicable zoning, land use and other Laws. 4.1.5 CDD Tract. The CDD Tract shall be used and occupied only as a public space and as applicable, public sidewalks and entryways, subject to the easements granted herein, specifically including the Required Retail Easements. Nothing herein shall be deemed to authorize any use that is not permitted by applicable zoning, land use and other Laws. 4.2 Compliance with Laws; Code Enforcement. 4.2.1 Obligation to Cotttnly. Each Owner, including the South Liner Tract Owner, G Tract Owner and H Tract Owner, shall have an independent obligation to the other Owners to comply, and to cause its Tract and Improvements, as applicable, to comply, with all applicable Laws where noncompliance could (A) create a lien on any other Owner's Tract, (B) render any other Owner's Tract, or any portion thereof, liable to forfeiture or involuntary sale, (C) result in involuntary closing of any business conducted on a Tract which is otherwise permitted hereunder, (D) subject any other Owner or its Permittecs to civil or criminal penalty or liability or their property to damage, (E) subject any part of any other Owner's Tract to being condemned, vacated or damaged, or (F) create an unsafe condition affecting any other Owner's Tract (each, a "Material Adverse Effect"). Each Owner shall be responsible for ensuring that any contractor or design professional hired by it with respect to such Owner's Initial Work or any Repair Work shall comply with the requirements of this Section. Notwithstanding the foregoing, each Owner shall have the right to contest, by appropriate legal or administrative proceedings diligently conducted in good faith, the validity or application of any Laws and may defer compliance therewith until a final decision has been rendered in such proceedings and appeal is no longer possible, unless such contest or deferral could have a Material Adverse Effect. In any such case the contesting Owner shall immediately take such steps as may be necessary to prevent the occurrence of a Material Adverse Effect, including posting bonds or security or complying with such Laws. In the case of a contest by an Owner, the contesting Owner shall indemnify the other Owners against any and all losses that the other Owners may suffer by reason of the contest and any noncompliance with such Laws. 4.2.2 Code Enforcement. The Owners, including the South Liner Tract Owner, G Tract Owner and H Tract Owner, recognize the importance of avoiding any possible confusion that may arise for the City in determining which of the Owners hereunder shall be responsible for noncompliance with City's ordinances. In order to permit the City to enforce its zoning and building ordinances, the Owners hereby appoint the Retail Tract Owner as the Site's designee for purposes of City code enforcement. The Owners hereby agree that any notice of noncompliance from the City may be delivered to the Retail Tract Owner at the address set forth in the Notice provision of this COREA. Retail Tract Owner shall promptly deliver to South Liner Tract Owner, G Tract Owner, H Tract Owner and COI) Tract Owner copies of all enforcement notices that it receives from the City. 4.2.3 Enforcement. No Owner, including the South Liner Tract Owner, G Tract Owner and H Tract Owner, shall be entitled to enforce any other Owner's noncompliance with any Laws unless such noncompliance has or is reasonably likely to have a Material Adverse 11 60C DAEA/ 65n13635a 6 20151:7Q15 (South Ettc), S Jth Book22349/Page677 Page 18 ©f 98 EXHIBIT E North Miami Avenue Elevation Depiction Within Wal-Mart Plans eNLARGE0 EL.evATtoN LOCI( SOUTH Ai ,mr)7(mml 1,..11211.11-, Int, a g faLIV. th.g.£01,00. Mr. 11.12.7 ertCr-r..: I - - oltAA I -Wet .,eaka S,LHILJICW kL 11, i.JORTH MIAMI ;oil.- COMPOSITE EXHIBIT F Depictions of Lack of Liner Uses Within Wal-Mart Plans Active Use Liners on Garages that Front Primary Streets 627.27. Makanum Height, Budd -To, Minimum Setback end Ilse Raquiremenfs. TABLE INSET: SD 272 Mai imuan height 6is06*To. Minimum Selbmk and Use Requirements Height Ground Roar r Rudd. To Fkd-tev SGSDudt- Upper-lewd Setbarat' Uses Seem! fscedon meow, Bo&overd Prhnary ea for oaranartaai sinst,-uso 120' for restd>'J7.Gef or mixed -use 20' lkdki-To Agee between the building hnniege and base bu idisg tine shall be improved es aprna spars. Mat mum ,a[tdwable encroachment t0` 35. soffiade [gather' 60' too vation HiPi All S0272 uses po rmZed mmoln that St Box retail WW1 net be from 31 at Street to 38 111 Street Lally uses an di laenang structures /kW, Adams Avemm Primary 60 fur corisnerciei stnek-use 12C1' fro mixed- use 207 for tnf1Y.'d- use tot! getaway 1 roqudrerntmt $ Seddd-To wet cresenada or aiming S Susd-to even conWrt:ne of HE 3d th Street south far e distance 01315 HIA 1 S setback above All S0272 uses prentItOrd Liner ar uses en ¢9 Wang structures except as c rierotso prisfidest fit Section 8272.12 6272.12. Surface Parking and Parking Garages. 3. As provided in Section 627.2.7, liner uses are generally required on parking garages that front primary streets. When required, ground level parking facilities must be lined with active uses. to ne1P legs! narkirtet =H at d cjO than 85' and shall not exceed a het ht of 54'. All other requirements provided herein shalt apply. �G�_ur '{.4�.1'C4 _i'. .Sli.2.J �. �.�4��t�v Active Use 2nd Floor Liners on Midtown West North Block North Block of Midtown features numerous small retailers and big box stores side by side on N. Miami Avenue. Garage is lined with office space, walkway between street & office entrances provides articulation, Active use liners on 256 floor clearly accessible from street circulation in west side of existing North Block containing Target. (right) Walmart's Plan Places Service Areas Where Active Liner Use is Required 2nd floor r►'s archutaetis from Gensler idenhhcd helm "back of house. storage, broom cfr.Sets drsc! offrr_e . at ',upnort the reiallet' 1,11 minute 44of.fuliatuk's UD,RBnieetilie,aan rer, a ref Walrrmart's Plan Places Stained Concrete Where Active Use is Required 3`1] floor -LIGHT BEIGE STAINED CONCRETE Floor Plan lacks much if any pedestrian shelter rrom the elements. Additionally, it attempts to substitute stained concrete as a Liner Use. Lacking active use, the 2"° and 3'd floors require an 85' setback from N. Miami Avenue, as well as Midtown Boulevard. There's nothing to prevent future occupants from converting "Stained Concrete" areas into shopping cart kennels and service areas. In COMPOSITE EXHIBIT G Depictions of Lack of Second Floor Setback Within Wal-Mart Plans Upper floor setback ❑f 10' on 31s1 street missing from W'aimart's Plans Slide 1 • Walmart's plan has 0' setback on the 2nd and 3rd floors. 10' is required Walmart's plans above & below, zoning code to right Upper floor setback of 1O on 31" street missing from Walmart's Plans Slide 2 — Example of North Block NE 34th Street Design Standard with Photo piMeyri1 r vt5' e. zoagle map lbelow, RI,/ fhe:op Etandatd for NE 30rh. 31sr. 3/rd. 33rd, 34trt 8 3irh ONtst of YLdtown Bcr.ifevsrdl COMPOSITE EXHIBIT H Depictions of WaI-Mart's 4 Adjacent Loading Bays and 5th Loading Bay Loading Berth and Service Requirements Midtown District loading requirements are precise. They indicate how many bays must be Included for each size and class of property. They prohibit loading on certain streets and within public view. Visual and architectural screening, of back of the house operations is required. 627.2.15. Off-street Loading. The off-street loading requirements shall be as follows: 1 For residential uses: a. Berth minimum to be twelve (12) by thirty-five (35) feet by fifteen (15) feet in height; b. One (1) berth for every one hundred twenty (120) residential units or fraction thereof. 2. For non-residential uses: a. Berth minimunn to be twelve (12) by fifty-five (55) feet by fifteen (15) fe et in height; b. For non-residential floor area of twenty-five thousand (25,000) up to fifty thousand (50,000) square feet, one (1) berth total; c. For non-residential floor area tap to one hundred thousand (100,000) square feet, two (2) berths total; d. For non-residential floor area up to two hundred fifty thousand (250,000) square feet, three (3) berths t; 1. Service access and service loading areas shall not be permitted to front the following streets or portions: North Miami Avenue south of Northeast 34th Street; Midtown Boulevard; Buena Vista Avenue: and Northeast 29th Street. 2. Service loading areas shall be enclosed within buildings or screened from public view with architectural wails and/or landscapinq, Walmart's plan has 4 ground level loading berths, 1 more than allowed. 517E f I. f T1' 44. IMF R0 .1E TS v r r{ } _ - - I i - -1 ._ . .r 7 Walmart );: Walmart's 5th loading bay Midtown Miami's zoning zoning states requirements for loading. Walmart makes the preposterous claim that their project is actually 2 projects, even though they are submitting both on the same application, both on the same parce&, to be built simultaneously. The "finer shops" loading zone was rejected as impractical by the Miami UDRB and not up to code For not fitting a 55' truck with a 15' clearance (below) as required by code. Miami's UDRB also rejected the Truck Maneuvering plan (right) as flawed. Lacking loading space, the proposed liner shops will have need to load off street, against zoning rules. District guidelines clearly require 3 loading bays, this is the 5th planned bay for this project. 1r'flr 11. IIJ 1Rtf1AtWIC, rill PotAnttrYtritsia Gensi COMPOSITE EXHIBIT I Depictions of Wal-Mart's De►riation from Streetscape Design Standards Streetscape Standards in Midtown Miami 627.2.9. Streetscape. All exterior space as defined in the SD 27.2 Zoning Ordinance shall conform to the following standards and are subject to approval by the Director of the City of Miami Department of Public Works and other authorities having jurisdiction. Denial of these requirements by such authorities for reasons of public health, safety and welfare shall not constitute a variance from this Ordinance. Refer to the SD 27.2 Design Standards for additional Resign Standards and Guidelines regarding slreetscapes. 1. All required setbacks and sidewalk area within the public right-of-way adjacent to streets shall be a continuous pedestrian space. For all sidewalks, an area a minimum of five (5') feet wide must remain clear of all Obstructions to ensure adequate pedestrian circulation_ 2. For all streets, the ground floor of buildings shall be set back from the property line, where necessary, la provide a minimum sidewalk width l}) feet from face of buildinqto curb line. Unless otherwise prohibited by setback requirerfene of the SD 27.2 Zoning District, the upper floors of buildings may overhang this setback. The setback area shall be improved to meet the adopted design standards of the SD 27.2 Zoning District for the a decent public siTeTviik including pavement treatment, landscaping, street lighting and awnings, Zoning Requirements from Appendix C to Miami21 Zoning Code (above). SD 27.2 Design Standard for NE 31st Street (right). Walmart's Roadway Design for NE 315t Street vs. adopted Design Watmares plan (above) varies distinctly from the adopted Design Standards (below) of the Midtown Master Pan where it should match. Walmart's design is 3 lanes of traffic. Adopted standards are 2 traffic lanes and 2 on -street parking lanes. Walmart's technical drawing is actually incomplete, and should include the overhead sidewalk treatments too. Oi.Str.et Pnrklnj on -street parking is required an molt streets to pride addhional parking oppons>niun and create a more urban caret :ypc w,th aob- atanual pedeltian boom A1. on.tteeet parallel parttinj tpscea sto31 be a minimum of r wade by 20' Pang,, unless otherwise ise noted a sr 1 wr[Ltt'. tatVaal ltairo at0 N7Ott t I f .aar— SECTION A -A scA•ftf• --- • • 4 VValmart's Sidewalk Setback Areas Don't Meet Adopted Design Standards for Midtown Miami, no bulb outs or parallel park areas t a SAT BAY Z BAY 3 ® 1 1 almart),(