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HomeMy WebLinkAboutAppeal Letter & Supporting DocumentsMITCHELL BIERMAN, P.A. NINA L. BONISKE, P.A, MITCHELL J. BURNSTEIN, RA. JAMIE ALAN COLE, P.A. STEPHEN J. HELFMAN, P.A. GILBERTO PASTORIZA, P.A. MICHAEL S. PDPOK, P.A. JOSEPH H. SEROTA, P.A. SUSAN L. TREVARTHIEN, P.A, RICHARD JAY WEISS, RA. DAVID M. WOLPIN, P.A. DANIEL L. ABBOTT LILLIAN M. ARANGO GARY L. BROWN JONATHAN M. COHEN IGNACIO G. DEL VALLE JEFFREY D. DECARL4 ALAN K. FERTEL CHAD S.. FRIEDMAN ALAN L. GABRIEL DOUGLAS R. GONZALES EDWARD G, GUEDES JOSEPH HERNANDEZ ROGER S. KOBERT JOSHUA D. KRUT MATTHEW H. MANDEL JOHN J. QUICK ANTHONY L. RECIO BRETT J. SCHNEIDER CLIFFORD A. SCHULMAN MARC SOLOMON LAURA K. WENDELL. JAMES E. WHITE WEISS SEROTA HELFMAN PASTORIZA COLE & EONISIK-PE rt� �.�,1 �I ATTORNEYS AT LAW ?CANNING OE A PROFESSIONAL LIMITED LIABILITY COMPANY PART Ke POaDLARA RAOUELELEJABARRIETA* INCLUDING PROFESSIONAL ASSOCIATIONS M$AMI-DADE OFFICE 2525 PONCE DE LEON BOULEVARD SUITE 700 CORAL GABLES, FLORIDA 33134 TELEPHONE 305-854-0800 FACSIMILE 30S-854-2323 WWW. W S H-LAW. CO M 114 FEB 21 BROWARD OFFICE EDO EAST BRDWARO BOULEVARD • SUITE 1900 FORTLAUDERDALE, FLORIDA 33301 TELEPHONE 954-763-4242 • FACSIMILE 954-764-7770 VIA HAND DELIVERY Mr. Anel Rodriguez Hearing Boards City of Miami 444 SW 2' Avenue Miami, Florida 33130 •OF COUNSEL February 21, 2014 PM re INO LFifc P. HOCKMANviEL A. P KELLY RAINS JESSON KAREN LIEBERMAN* JUSTIN D. LUGER JOHANNA M. LUNDGREN MIA R, MARTIN ALEIDA MARTINEZ MOLINA* KATHRYN M. MEHAFFEY ROBERT A. MEYERS* MATTHEW PEARL MARC C. PUGLIESE• CARLOS M,RODRIGUEZ* GAIL D. SEROTA* ALISON F. SMITH" ANTHONY C. SOROKA EDUARDO M,SOTO PABLO A. TAMAYO JOANNA G. THOMSON PETER D. WALDMAN* ALICIA H. WELCH SAMUEL I. ZESKlND Re: Notice of Appeal of Decisions Relating to Met Square at the February 14, 2014 Special Meeting of the Historic and Environmental Preservation Board (the "HEP Board") Dear Mr. Rodriguez: MDM Retail, Ltd. ("Met Miami") submits this letter of intent and notice of appeal from the following decisions of the HEP Board at a February 14, 2014 special meeting: (1) the repudiation of the action plan presented by Met Miami; (2) the request for Met Miami to propose a plan fully preserving all features on the site; and (3) the direction that staff initiate the archaeological site designation process. This appeal is filed pursuant to Sections 23-6,2(e) and 23-4(c)(7) of the City's Code of Ordinances (the "Code"), The reasons and grounds for this appeal are: 1. The HEP Board Lacked Jurisdiction: Met Miami's proposal is consistent with the governing HEP Board resolutions and the May 21, 2013 Warrant (the "Warrant"). Mr. Anel Rodriguez February 21, 2014 Page 2 While the HEP Board retained jurisdiction to recommend other actions within 60 days of a notice of significant discovery, it failed to do so as required by Condition No. 2 of Resolution No. HEPB 2002-68 (the "Condition") and thus, acted at a time when its jurisdiction over such issues had expired. The HEP Board also exceeded its authority in rendering a decision that results in an unreasonable and undue economic hardship for Met Miami, as prohibited by Section 23-6.2(b)(4)b of the Code. Indeed, other than recognizing that Met Miami presented substantial, competent, credible, and undisputed evidence of economic hardship, the HEP Board failed to address at all how it could have jurisdiction in light of a sworn affidavit and live testimony establishing economic hardship under Section 23-6.2(h)(4) of the Code. Further, in attempting to act under the Condition, a provision ostensibly providing for review of significant findings but bereft of any standards for performing such review, the Condition was and continues to be an unconstitutional delegation of authority to the HEP Board, attempting to accord it powers far greater than the parameters of Chapter 23 of the Code provide, 3. The HEP Board Exceeded its Authority for Reviewing a Certificate to Dig in Archaeological Zones: The HEP Board's repudiation of the action plan and request for full preservation exceeded its authority under Section 23-6.2(h)(3) of the Code because it unreasonably restricts the primary, approved use of the property. 4. Due Process: The HEP Board, by its members making statements to the press pre judging the case prior to receiving submissions from either its staff or Met Miami or hearing the evidence in a quasi-judicial proceeding, by certain members refusing to read submissions that its staff directed Met Miami to send to them, by announcing a one -hour time limit for Met Miami to present its case at the beginning of the hearing and then artificially limiting Met Miami's presentation despite the fact that Met Miami had previously identified three witnesses that it needed to present in its ease, by failing to make any findings necessary to support its exercise of jurisdiction, by failing to tether its decision to the governing resolutions and Warrant or the ordinance's standards governing a certificate to dig, and by its general conduct before and during the February 14, 2014 hearing, violated Met Miami's due process rights. Moreover, the HEP Board's direction to initiate the archaeological designation process is a violation of due process akin to what is known in criminal law as "double jeopardy," because the site is already WEISS SEROTA HELFMAN PASTORIZA COLE 8c BoNIsKE, P.L. Mr. Anel Rodriguez February 21, 2014 Page 3 designed as an archaeological conservation area and thus already subject to the Certificate of Appropriateness requirement. The HEP Board apparently ignored the fact that it was reviewing the Condition of an existing Certificate of Appropriateness at the very meeting where it directed staff to initiate proceedings that would require a Certificate of Appropriateness for development. In other words, should the designation process be adopted, a new Certificate of Appropriateness would be reviewed anew by the same HEP Board that just reviewed the Condition, thus granting them a `second bite at the apple." 5. Violated Principles of Equitable Estoppel: The HEP Board was foreclosed from repudiating the action plan and requesting full preservation because Met Miami, in good faith over a period of more than ten years, relied upon the Board's resolutions limiting its authority to act to within 60 days of a notice of significant discovery, the Board's and its staffs approval of development plans and mitigation measures, and the Board's failure to act in response to notices of significant discovery. The City itself required Met Miami to make substantial expenditures: Met Miami not only developed an engineering plan pursuant to the Warrant requiring it to develop foundation plans, but also spent in excess of $3 million on archaeological expenses alone. Met Miami also relied in good faith on the Board's and its staffs actions in negotiating leases and letters of intent for the lease and sale of the property at Met Square and other properties. 6. Unlawful Taking Without Compensation: The HEP Board's actions were unlawful because they constituted an inordinate burden on Met Miami's property rights without compensation in violation of the Bert Harris Act, Fla. Stat. § 70.001, an uncompensated taking in violation of the Florida Constitution, Art. X, § 6, and an uncompensated taking in violation of the United States Constitution, Amend. V, U.S. Const. 7. Unsupported by Substantial Competent Evidence: The HEP Board's decisions were not supported by substantial competent evidence. 8. Frustration of the City's Policy Objectives: The development halted by the improvident actions of a Board with a singular objective, historic preservation, has frustrated other critically important City objectives, not the least of which is the development of a downtown core that will bring residents downtown where they will be able to live, work, shop and find entertainment without use of WEISS SEROTA HELFMAN PASToRIZA COLE & BONISKE, P.L. Mr. Anel Rodriguez February 21, 2014 Page 4 automobiles. This particular block was designed and approved by the City Commission to serve several elements of those public needs. 9. Failure to Establish a Factual Basis for Historic Preservation: The Board impermissibly assumed the fact that it was required to prove, that is, that a particular part of the site possessed undisturbed archeological features that, if preserved, would serve the interest of posterity. The evidence conclusively established that it is a seriously disturbed site, with evidence of occupation over hundreds of years that could not be distinguished from evidence of an ancient civilization. The evidence conclusively established that the claim that evidence has been uncovered of a previously unknown degree of complexity of a civilization of indigenous people is false. That claim was proved to be based on unsupportable supposition and is contrary to the undisputed physical and anecdotal evidence existing in the record. 10. Ignoring Undisputed Evidence and the Need to Present the Entire History of the Site as Met Miami's Mitigation Plan Does: It is an undisputed fact that on the subject property occupants over many periods of history engaged in activities central to the history of Miami and that the physical evidence of those occupations has been completely mixed such that one period cannot be distinguished from another by the "features" found in the bedrock (Miami oolitic limestone). It is also undisputed that to be consistent with the City's historic preservation ordinance, a mitigation plan must honor the entire rich history of this site, present all of the historically important events and all of the historically important evidence rather than present, through hopelessly muddied evidence, one period over another. The latter is what the Board has inappropriately undertaken to require. Met Miami's mitigation proposal appropriately honors each period of the history of this site. 11. Unconstitutional Condition as Applied: As applied by the Board to effectuate an uncompensated taking devoid of an essential nexus to the benefit of allowing development to occur and far beyond the bounds of rough proportionality to the impact of such development, the Condition itself, and the motion in favor of complete preservation is unconstitutional. In support of the appeal we will rely on the record of the proceedings and the permitting record, all of which is incorporated by reference. In addition, because the hearing before the Commission is de novo, we will submit additional evidence and argue additional grounds in WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. Mr. Anel Rodriguez February 21, 2014 Page 5 support of this appeal that will be summarized in a memorandum in advance of the hearing and offered when the appeal is heard. In accordance with the requirements of Sections 23-6.2(e) of the Code, this written notice of appeal is filed within 15 days of the February 14, 2014 decision and is accompanied by the $525 appeal fee. We have ordered a certified list of owners within 500 feet and will supply that list, the labels, and the notice fee upon receiving them from the preparer. Given that delays in evaluating this matter have already imperiled Met Miami's ability to deliver the completed property on time to prospective Iessees and purchasers, please schedule this matter for City Commission agenda for the March 13, 2014 meeting. Thank you for your attention to this matter. Please call me if you have any questions. Very trul ours, Tony Recio TRIms 372010 cc: Francisco Garcia, Planning Director Megan McLaughlin, Preservation Officer Victoria Mendez, Esq., City Attorney Luis Pulenta Ian Swanson Gene Stearns, Esq. 143363425 v8 WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. CITY OFMIAMI DISCLOSURE OF CONSIDERATION PROVIDED OR COMMITTED FOR AGREEMENT TO SUPPORT OR WITHHOLD OBJECTION The City of Miami requires any person or entity requesting approval relief or other action from the City Commission or any of its boards, authorities, agencies, councils or committees, to disclose at the commencement (or continuance) of the hearing(s) on the issue, any consideration provided or committed, directly or on its behalf, to any entity or person for an agreement to support or withhold objection to the requested approval, relief or action. "Consideration" includes any gift, payment, contribution, donation, fee, commission, promise or grant of any money, property, service, credit or financial assistance of any kind or value, whether direct or implied, or any promise or agreement to provide any of the foregoing in the future. Individuals retained or employed by a principal as a lobbyist as defined in Sec. 2-653, and appearing before the City Commission or any of its boards, authorities, agencies, councils or committees solely in the capacity of a lobbyist and not as the applicant, or owners' legal representative are not required to fill out this form. NAME: Tony Recio (First Name) (Middle) (Last Name) HOME ADDRESS: Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. (Address Line 1) 2525 Ponce de Leon Blvd., Suite 700 (Address Line 2) CITY: Coral Gables STATE: Florida ZIP: 33134 HOME PHONE: (305) 854-0800 CELL PHONE: FAX: (305) 854-2323 EMAIL: trecio@wsh-law.com BUSSINESS or APPLICANT or ENTITY NAME MDM Retail, Ltd. BUSINESS ADDRESS: coo Tony Recio, 2525 Ponce de Leon Blvd., #700 (Address Line 1) Coral Gables, FL 33134 (Address Line 2) 1. Please describe the issue for which you are seeking approval, relief or other action from the City Commission, board, authority, agency, council, or committee. Appeal of HEP Board decisions of February 14, 2014 2. Has any consideration been provided or committed, directly or on your behalf, to any entity or person for an agreement to support or withhold objection to the requested approval, relief or action? []YES ® NO if your answer to Question 2 is No, do not answer questions 3, 4 & 5 proceed to read and execute the Acknowledgment. If your answer to Question 2 is Yes, please answer questions 3,4 & 5 and read and execute the Acknowledgement. Doc. Nn.:86543 3. Please provide the name, address and phone number of the person(s) or entities to whom consideration has been provided or committed. Name Address Phone# a. N/A b. c. * Additional names can be placed on a separate page attached to this form. 4. Please describe the nature of the consideration. N/A 5. Describe what is being requested in exchange for the consideration. N/A ACKNOWLEDGEMENT OF I hereby acknowledge that it is unlawful to employ any device, scheme Ordinance 12918 and such circumvention shall be deemed a violation or civil penalties that may be imposed under the City Code, upon determination disclosure requirement was not fully and timely satisfied the following 1. the application or order, as applicable, shall be effect; and 2. no application from any person or entity for considered by the applicable board(s) until ex i nullification of the application or order. PERSON SUBMITTING DISCLOSURE: COMPLIANCE or artifice to circumvent the disclosure requirements of of the Ordinance; and that in addition to the criminal by the City Commission that the foregoing may occur: deemed void without further force or the same issue shall be reviewed or e a period of one year after the Signature Tony Recio Print Name Sworn to and subscribed befive me this dm3 oft:79-10\""-2-7 , 70 . The f oregoing instrument was acknowledged before me by , who has produced as identification and/or is personalty known to me and who did/did not take an oath. STATE OF FLORIDA CITY OF MIAMI 4-6` ve MARtILYNSOMODEVILIp MY COMMISSION ,r EXPIRES: ,,.NMAIZIMISSION # EE 116532 t EXPIRES:September 13, 2615 Apt s, 'F• TMIe y S.A. OF 0, �Ii am Enclosurc(s) Dcic'. No..R i543 Page 2