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HomeMy WebLinkAboutAppeal LetterRECEIVE EHRENSTEIN CHARBONNEAU CALDERIN PLANNING E PA RT FI"a ! Attorneys at Law 20I4JUL 3I AMI0:22 July 31, 2014 File ID#: 14-0084x VIA HAND DELIVERY Olga Zamora Chief of Hearing Boards City of Miami Department of Planning and Zoning Hearing Boards Section 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 RE: Appeal of PZAB Denial of Exception Pursuant to Article 4, Table 3, of the Miami 21 Code, to allow a Pre -School Within the T3-R (Sub -Urban Transect) Zone for the Property Located at 2475 and 2485 SW 22nd Ave., Miami, FL (the "Property") This letter shall serve as El Avila Child Development Center, LLC's (the "Pre -School") appeal of the Planning, Zoning and Appeals Board's (the "PZAB") denial of an exception pursuant to Article 4, Table 3, of Zoning Ordinance 13114 of the Miami 21 Code ("Miami 21") to allow the operation of a pre-school on the Property, situated within in the T3-R, Sub -Urban Transect Zone. Through this appeal, the Pre -School seeks the City Commission's approval of its application (the "Application") for an exception so that it may (i) change the current use of the Property from a daycare facility, which has been operating on the Property for the past 17 years, to pre-school use; and (ii) to expand the existing operation to the abutting property located at 2475 SW 22nd Avenue (referred to as "Building A" in the Application) and increase the number of students from 20 to 49 (the "Exception"). I. SUMMARY OF APPEAL The Pre -School's Application for an Exception should be approved because: • The proposed pre-school and the Exception fully complies with all of the criteria set forth in Miami 21, the Miami -Dade County Code (the "County Code") and Florida Statutes; • The Planning Director (the "Director") and Zoning Administrator (the "Administrator") both recommended that the PZAB approve the Application; • The Director thoroughly reviewed and analyzed the Application twice, once for Miami 21 compliance, and once for County Code Compliance, and found the Application to be compliant with both codes and all applicable criteria; • The PZAB's denial of the Application was legally deficient and constitutes error; and • The Application was unfairly tainted by a convicted felon Janice Tarbert ("Tarbert"), who chaired two PZAB hearings on the Application and failed to disclose her material conflict of interest, and failed to recuse herself after having been arrested and charged with organized fraud and grand theft. Page 12 II. PROCEDURAL BACKGROUND The Application was filed in January 2014. The City of Miami Planning Department (the "Planning Department") reviewed and analyzed the Application and requested additional documentation, renderings, and other information from the Applicant in order to complete its review of the Application. The Director and the Administrator have both recommended the Application's approval. On March 18, 2014, the PZAB heard the Application and was inclined to approve. However, Tarbert continued the hearing, requesting that the Applicant meet with certain members of a voluntary homeowners association (the "HOA"), some of whom opposed the Application. Section 7.1.1.4(d)(6) of the Code requires that "... any member of the Planning, Zoning and Appeals Board ... [whom] shall find that his private or personal interests are involved in the matter coming before the board, he shall, prior to the opening of the hearing on the matter, disqualify himself from all participation of whatsoever nature in the cause." (emphasis added). Incredibly, Tarbert did not disclose that she served as an officer of the very same HOA for years, working closely with the current officers of the HOA—the same members who appeared before the PZAB to speak about the Application. Moreover, Tarbert never disclosed that that she resided a few blocks from the Pre -School. Finally, Tarbert failed to disclose that she had been indicted for organized fraud and grand larceny. She was later convicted. These are serious, material conflicts of interest that Tarbert was required to disclose, and failed to disclose. In addition, Tarbert was unfit to serve on any quasi-judicial board, let alone chair one in which she has been actively aligned with the main opposition to the matter being heard. After the March 18 hearing, the Applicant met with certain members of the HOA and responded to all of their questions. It became clear during that meeting that the HOA members who opposed the Application were primarily concerned about the potential decrease in their property value, and not about any of the specific criteria the Applicant is required do, and does satisfy. On April 30, 2014, the PZAB re -heard the Application. Once again, Tarbert presided over the hearing, and she did not disclose her material conflicts of interest or organized fraud indictment. At the outset of the hearing, Tarbert prevented one board member from moving to approve the Application. She again allowed members of a group with whom she was formerly closely aligned hours to speak, and to raise issues outside the scope of the PZAB's authority. The PZAB ultimately denied the Application. T 305.722.2002 F 305.722.2001 www.ecclegai.com 501 Brickell Avenue Suite 300 Miami, Florida 33131 Page 13 The Applicant appealed the PZAB's April 30 decision, and was scheduled to appear before the City Commission on June 24, 2014. Upon arriving at the June 24 hearing, the Applicant was informed that the City had withdrawn the Application because it had determined that it was required to review the Application for compliance with the County Code as well as compliance with Miami 21. This meant that the Pre -School would have to go before the PZAB for a third time. The Planning Department then requested the Application provide additional renderings, documents, and information so that it could review the Application for County Code compliance. The Pre -School complied with the Planning Department's requests, and the Planning Department immediately and diligently reviewed the Application for County Code approval so that the Pre -School could go back before the PZAB on July 16, 2014. The Planning Department once again found the Applicant compliant, now with not only Miami 21, but the County Code, and recommended approval. At the July 16, 2014 hearing, the PZAB again violated Miami 21 and acted outside the scope of its authority by denying the application despite the Application's compliance with the Miami 21 and County Codes, which required the PZAB to approve the Application. The Pre -School now files this appeal and requests that the City Commission approve the Application. III. THE PZAB'S DENIAL WAS LEGALLY DEFICIENT The PZAB is required to grant an approval of an exception in the event an application complies with all applicable regulations pursuant to Section 7.1.2.6 (c)(2) of the Code, which provides that: "[alpprovals shall be Qranted when the application complies with all applicable regulations." The Analysis and Recommendation Memo found the proposed use is in compliance with all relevant sections of Miami 21, and recommended approval. The Analysis for Exception dated July 8, 2014 found the proposed use is in compliance with all relevant sections of the County Code and Florida Statutes, and recommended approval. For the second time, the PZAB has ignored (i) its obligations under Miami 21; (ii) the facts and the conclusions of the Director and the Administrator; (iii) the County Code; and (iv) Florida Statutes, and denied the Application without any legal justification. IV. THE APPLICATION IS MIAMI 21 AND COUNTY CODE COMPLIANT AND COMPLIES WITH FLORIDA STATUTES A. The Pre -School Far Exceeds the Spacing Requirements Pursuant to Florida Statute §402.305(6)(b), a pre-school is required to provide 35 square feet of interior space and 45 square feet of outdoor space per child. T 305.722.2002 F 305.722.2001 www.ecclegal.com 501 Brickell Avenue Suite 300 Miami, Florida 33131 Page 14 The proposed Exception is compliant because 49 children would require a total of 1,715 square feet of indoor space and 2,205 of outdoor space, and the Property is comprised of 1,960 square feet of indoor space and 11,185 of outdoor space. The Pre -School therefore exceeds Florida's space requirements by 14% and 407%, respectively. There is an abundance of space for 49 children, and the Pre -School complies with every applicable Florida law, Miami 21, and the County Code. It is inexplicable and clear error for the PZAB to deny to the Application basing on spacing issues, as at least one member stated was the basis of his "no" vote. B. The Pre -School Complies with Parking and Stacking Requirements The Planning Department reviewed the Application twice, once for compliance with Miami 21, and once for County Code compliance. Each code has different parking requirements for pre-schools. After these reviews, the Planning Department determined that the Applicant's complies with both Miami 21 and the County Code's parking and stacking requirements. The County Code, which is the more restrictive of the two codes, requires 1 parking space for each employee of a day nursery (a definition the Pre -School falls under in the County Code). County Code Section 33-124(1)(1) requires day nurseries to provide one parking space for each day care personnel and transportation vehicle. The Pre -School has 4 personnel (which is required by Florida Statutes for 49 students), and 7 parking spaces. The Pre -School is therefore compliant with the parking requirements promulgated by the County Code. The County Code also requires auto -stacking for 4 cars for schools with 40-60 children [County Code Section 33-151.18(a)]. The Pre -School has auto -stacking capability for 4 cars, as explained and demonstrated to the PZAB by the Applicant and the Planning Department. The Pre -School is therefore compliant with the auto -stacking regulations promulgated by the County Code. Despite the Pre -School's compliance, one PZAB member based her denial of the Application on the Pre -School's only having 4 employees. However, the student body mix the Pre -School intends to have requires 4 employees, pursuant to Florida Statutes. Therefore, the PZAB member erred when basing her "no" vote on lack of employees, because the Pre -School fully complies with Florida Statutes with respect to the employee -student ratio. In addition, employee -student ratios are not under the purview of the PZAB, and no PZAB member can base their denial of the Application on this inapplicable criteria. C. The Pre -School Complies with Landscaping Requirements The Planning Department reviewed the Application for compliance with applicable landscaping requirements, and determined that the Pre -School is compliant, but would be required to provide the Planning Department with a landscaping plan and also to plant a T 305.722.2002 F 305.722.2001 www.ecclegal.com 501 Brickell Avenue Suite 300 Miami, Florida 33131 Page 15 T 305.722.2002 F 305.722.2001 www.ecclegal.com cocoplum hedge. These are extremely minor conditions and the Pre -School can easily comply with them. D. The PZAB Cannot Deny the Application Based on "Traffic" Issues The Application is required to meet certain criteria under the Miami 21 and County Codes. If it meets these requirements, the PZAB must approve the Application. The PZAB is not empowered to add criteria, or to deny compliant applications. Yet the PZAB listened to the HOA' s anecdotal (and demonstrably untrue) warnings that the Pre -School would exacerbate traffic on 22nd Avenue. However, as one board member who travels 22nd Avenue on a daily basis noted, there is no traffic issue on 22nd Avenue. There may be an issue with speeding cars, but that is not part of the applicable criteria. Speeding is an issue for the Florida Department of Transportation, or the City of Miami Police Department. The Pre - School is not responsible for creating speeding cars. Furthermore, the Application cannot be denied on the basis that it may exacerbate non- existent traffic problems, because traffic is not part of the criteria set for by Miami 21 or the County Code, and is outside the PZAB's purview. Any denial of the Application based on traffic is therefore clear error. Pursuant to Miami 21, only the Planning Director can require a traffic study, and with respect to this Application, the Planning Director deemed a traffic study to be unnecessary. The PZAB is not empowered to deny the Application because a traffic study was not provided by the Applicant when none was required. Finally, certain board members indicated concerns that the Pre -School's entrance is on 22nd Avenue. However, there are at least 8 pre-schools and other schools within a 1-2 mile radius of the Pre -School with entrances on major thoroughfares that are far more heavily trafficked than 22nd Avenue, such as Coconut Grove Montessori, 3280 Bird Road; Coconut Grove Montessori (2nd location, 2850 SW 27th Avenue); Village Montessori (1414 Coral Way); La Prima Casa Montessori (2733 SW 3rd Avenue —entrance on Coral Way); Ransom Everglades School (2045 South Bayshore Drive); Meni-Ninho Meni-Ninha, 2280 SW 17th Avenue; and Pine View Pre -Schools (3 locations, 2965 Douglas Rd., 1835 W. Flagler, and 6333 Sunset). E. The Director And The Administrator Recommended Approval The Director and Administrator recommended approval of the Application. Under the Code, the PZAB is required to give full consideration to the Director's recommendations. The Director and Administrator recommended approval because the proposed Exception meets the criteria of the Code and the Florida Statutes governing the operation of pre-school facilities, as reflected in the Analysis for Exception, Findings and Comments (the "Analysis and Recommendation Memo") which was read into the record at both the March 18, 2014 public hearing and the April 30, 2014 hearings. The Planning Department' s Analysis for Exception (the second Planning Department review of the Application, for Miami 21 and County Code compliance), dated July 8, 2014, also 501 Brickell Avenue Suite 300 Miami, Florida 33131 Page 16 recommended the Application's approval. Department analyzed, and its conclusions: Criteria: Scale: Compatibility: Buffers: Landscape: Circulation: Noise: Service Areas: Parking Areas: Operating Time: Fences and Walls: Application Consistent Consistent Consistent Consistent Consistent Consistent Consistent Consistent Consistent Consistent These are the applicable criteria the Planning There was no basis for the Planning Department to deny the Application, and therefore approval was recommended. V. CONCLUSION For all of the foregoing reasons, the Pre -School appeals the July 16, 2014 decision of the PZAB. The Pre -School reserves the right to amend this appeal when the PZAB issues its resolution. T 305.722.2002 F 305.722.2001 www.ecclegal.com Respectfully submitted, EHRENSTEIN CHARBONNEAU CALDERIN Counsel for El Avila Child Development Center 501 Brickell Key Drive, Suite 300 Miami, FL 33131 T. 305.722.2002 F. 305.722.2001 By: /s/ Christopher B. Spuches Christopher B. Spuches, Esq. cbs@ecclegal.com Kimberly A. Ginsburg, Esq. kag@ecclegal.com 501 Brickell Avenue Suite 300 Miami, Florida 33131