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HomeMy WebLinkAboutCertified Minutes RE FileID 13-01030ii CC 11-21-13STATE OF FLORIDA COUNTY OF MIAMI-DADE CITY OF MIAMI I, Todd B. Hannon, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do hereby certify that the attached and foregoing pages, numbered 1 through 16, inclusive, constitute a true and correct copy of the verbatim minutes for the Miami City Commission meeting dated November 21, 2013, regarding File Id No. 13-01030ii IN WITNESS WHEREOF, I hereunto set my hands and impress the Official Seal of the City of Miami, Florida, this 5th day of November, 2014. Todd B. Hannon City Clerk Miami, Florida (OFFICIAL SEAL) City of Miami City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com CAA0 Meeting Minutes Thursday, November 21, 2013 2:00 PM PLANNING AND ZONING City Hall Commission Chambers City Commission Tomas Regalado, Mayor Marc David Sarnoff, Chair Wifredo (Willy) Gort, Vice Chair Frank Carollo, Commissioner District Three Francis Suarez, Commissioner District Four Michelle Spence -Jones, Commissioner District Five Johnny Martinez, P.E., City Manager Victoria Mendez, City Attorney Todd B. Hannon, City Clerk City Commission Meeting Minutes November 21, 2013 PZ.18 13-01030ii RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DENYING THE APPEAL BY GRANT STERN, PETER EHRLICH, ROSI BARRIOS, SANDI MADGER, DAVID LE BATARD, YASMINE GARATE, AND ANTHONY DAVIDE, AFFIRMING THE DECISION OF THE PLANNING, ZONING AND APPEALS BOARD, THEREBY APPROVING 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. Motion by Chair Sarnoff, seconded by Commissioner Carollo, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 3 - Commissioner(s) Gort, Samoff and Carollo Absent: 2 - Commissioner(s) Suarez and Spence -Jones R-13-0471 Chair Sarnoff: Before we begin, I just want to make a Jennings disclosure. I met with the appellants in this matter on three occasions, if my recollection is correct. I have my notes here of the times that I met with them; probably, altogether, about an hour and forty, an hour and fifty minutes total. I met with Wal-Mart once for approximately 30 to 35 minutes. I did not take notes. Does anybody wish to cross-examine me on anything with regard to that? Okay, let's proceed. Francisco Garcia (Director, Planning): I'd like, if I may, to make a brief introductory statement introducing what I understand is going to be the next item to be heard, which PZ. 18. "wanted to confirm that first. Is that correct? Chair Sarnoff Sony? Mr. Garcia: PZ.18, the appeal for a Class II for a Wal-Mart in Midtown. Chair Sarnoff: That's correct. That is where -- correct, that is where we are. Mr. Garcia: Thank you, sir. I wanted to make certain that that was the case. And then I'd like to simply make a couple of brief introductory remarks to touch on some points that you are likely to hear much about over the next few minutes. The item before you is a Class II Special Permit appeal for a property at address 3055 North Miami Avenue. This is within the Midtown district. You may hear references to zoning district SD-27, SD-27.2, which happens to be particularly the zoning designation for this site, or Appendix C, which happens to be the Miami 21 Zoning Ordinance appendix in which this -- these regulations are contained. I'd like to explain that the reason this is a Class II Special Permit and not a warrant, as you are more used to hearing these days, is because the regulations for this area, Midtown, are regulations that were put in place under Zoning Ordinance 11000, and so those zoning regulations still apply and were subsumed by Miami 21 when it was adopted by the City Commission. I would like then to share with you that the Class II Special Permit, as a permitting process, is very much akin to the warrant permit that you're more familiar with, perhaps. And the nature of the Class II Special Permit, in particular, as pertains to this application is as follows. Because this special permit is an administrative permit, it is issued by the Planning & Zoning Department and signed by the Planning & Zoning director, myself, and it is appealable to the Planning, Zoning & Appeals Board, and the decision of the Planning, Zoning & Appeals Board is appealable to this body. In City of Miami Page 2 Printed on 11/5/2014 ao-F-76 City Commission Meeting Minutes November 21, 2013 this particular case -- again, just anticipating some things that you may hear as testimony today -- the Class II Special Permit, although not required to be referred to the UDRB, Urban Development and Review Board, was in fact referred to the UDRB. The UDRB is an advisory committee, and it is advisory to the Planning & Zoning director, which means, quickly, that their advice or recommendations can be taken into consideration, and we certainly do that, but can be incorporated in part or set aside if we find them not to be consistent with applicable ordinances, so we have that privilege as part of our review. I will tell you as well that, once again, although not required to do so in this particular case, because we were, from the very beginning, aware of the fact that this would be a very controversial item, we, from the very beginning, held various public meetings -- and I want to emphasize `public meetings," not `public hearings" because no public hearings were required. So we held various public meetings with neighborhood stakeholders, with the developers, with some who were opposing the project or had questions about the project, countless meetings, really, and very well attended, in which a very vigorous debate was had; and I'm here again to assure you that every bit of feedback we received in every one of these meetings was certainly taken to heart and incorporated into our decision. I should emphasize as well that there were no variances required. There were no other special permits required. The sole permit needed for the proposal that is before you today was the Class II Special Permit. And I would like to tell you as well that as part of our findings, prior to issuing the Class II Special Permit, these findings include the fact that the project, as presented and as approved, is fully in compliance with all applicable regulations in the Miami Zoning Ordinance. I say this because you are likely to hear from the appellants that some particular provisions were not met and that that makes the document faulty. We certainly dispute that, and I'm certainly happy to provide testimony to that effect. A couple of more matters. The item was referred to NET (Neighborhood Enhancement Team), as we customarily do, and certainly NET was very involved -- the Neighborhood Enhancement Team of the City of Miami was very much involved in communicating to the stakeholders the nature of the item and addressing any concerns to the extent that they could or referring other concerns to us to the extent that they had to. The UDRB, the Urban Development Review Board, heard the item twice. In the first instance, they continued the item and had some feedback to provide in items that they would like to see revised or reviewed, which we did. In the second instance, they voted to recommend denial. I emphasize "recommend" denial, and I say "recommend," because, again, they are an advisory body. And with that recommendation for denial, the specified items that they were not satisfied with and that should be revised or amended, we took that advice, and we worked with the applicants to ensure that those items were addressed appropriately, and they were. There are findings to that effect in the Class II Special Permit. Lastly, I will tell you that the review process for this particular proposal took approximately two years, and I am proudly rounding down, not rounding up. In those two years, the project came a long way, and we started with a project that we had some reservations about, and we finished with a project that we are very proud to have signed off on, and I want to emphasize once again we find complies with all applicable regulations and therefore was deserving of our approval. Lastly, I'll tell you that the Planning, Zoning & Appeals Board heard this item on appeal, and they voted to deny the appeal; not to recommend denial, but to deny, because they had the ability to do so. And so it is today before you as an appeal of the Planning, Zoning & Appeals Board's decision to deny the appeal to the Class II Special Permit issued by the Planning & Zoning director. And that is all I have by way of presentation. We are certainly going to be standing by to answer any questions you may have. We encourage you to do so. You'll hear much testimony today. And with that, I'd probably want to yield to the appellants, whose case it is to make -- why they find that the project is not compliant. Chair Sarnoff: The appellants -- Paul Savage: Thank you. Chair Sarnoff -- you're recognized for the record. City of Miami Page 3 Printed on 11/5/2014 City Commission Meeting Minutes November 21, 2013 Paul Savage: Thank you, Mr. Chairman. And thank you, Director. My name is Paul Savage. I'm an attorney for the appellants in this matter. I have law offices at 100 Almeria Avenue, Suite 220, Coral Gables, Florida. I represent individuals and business owners who have proximity to this proposed super center by Wal-Mart on North Miami Avenue. Our principle contention -- well, before I get into my presentation, I am here tonight also with co -counsel, Tucker Gibbs, and also a planning expert, Mark Alvarez; and in connection with his appearance, there's a little bit of housekeeping that my co -counsel would like to take care of Tucker Gibbs: Good evening. My name is Tucker Gibbs, and I'm representing Peter Ehrlich, and with me is Mark Alvarez. Mr. Alvarez is an urban planner and was retained to provide expert testimony tonight. Unfortunately, he was retained last week. The -- he cannot register as a lobbyist under the City code, because he has not taken the ethics course. The ethics course was last given on November 7, I think it was, and therefore, when he was retained, he could not come in and register. What we're asking for is a waiver of that requirement. He will take the ethics course on December 5, which is the next time it is being offered. Chair Sarnoff Does the members of the Commission --? Richard Lydecker: Mr. Chair, could I be heard? Chair Sarnoff (UNINTELLIGIBLE), you have anything you want to add to that? Mr. Lydecker: Yes, I would. Richard Lydecker, here on behalf of the appellee for Wal-Mart. This has been a matter that has been pending for two years. We've had hearing, after hearing, after hearing in this case. Everybody's been presenting their experts. Nobody has held cards on the table -- held back cards or played "hide the ball" in this case. It's all been out there for over two years. We've had our experts up there. And quite frankly, the purpose behind the ethics class is that they learn the rules of the road so that when they get up and they stand and say things, they're following the rules of the road in theory. Well, you'll be deprived of that. And we would like to object, given this late date. They just retained him Friday, I'm told. Chair Sarnoff.• Okay. You're objecting. Mr. Alvarez, you have taken this course before? Mark Alvarez: I have. Yeah. Chair Sarnoff Sony. Mr. Alvarez: Yes, I have. Chair Sarnoff All right, it's up to this Commission. What are your druthers? Commissioner Carollo: Past precedence has been that we allow it, so I just want to maintain fairness. I believe -- Chair Sarnoff You agree? I think we're going to allow him to testes -- to present. Ms. Mendez: However, it is his ethics problem to deal with, so he should take that course -- Vice Chair Gort: You better. Ms. Mendez:: -- eventually and register, even though he's going to testify today. This is not a free pass. Mr. Alvarez.• No, I understand that. I will. City of Miami Page 4 Printed on 11/5/2014 I/ of- / City Commission Meeting Minutes November 21, 2013 Chair Sarnoff.• All right, let's proceed. Mr. Savage: Okay. Thank you, Mr. Chairman. What we're saying here tonight, just to be perfectly clear about what we're asking for, we're not asking for a rejection of this project. We have no qualms with the applicant. We have nothing against Wal-Mart. The beginning of this code section talks about big box. And when I think of big box, I think Wal-Mart is Exhibit A. It's fantastic. Our issue is that the proper procedure needs to be followed, and this was not an application that was appropriate for administrative approval by the Planning & Zoning director by way of a Class II Special Permit. This very large supercenter that's going to go in the middle of Midtown on North Miami Avenue is replete with variances, and it is a poster child for a Major Use Special -- a MUSP, a Major Use Special Permit. Why in the world this was not a MUSP, I'll never know. It is not an application that's in total compliance and doesn't needs [sic] public hearing as the director described. It's replete with variances. And if there was ever was a project that needed additional public hearing, this is it. I'll go in and talk about some of this. The code is very careful with many provisions saying, if you're going to do a Class II Special Permit and approve it administratively, you cannot approve variances, you cannot approve variances. It says pointblank that the Zoning administrator does not have the authority to relax the terms of the ordinance. And by the way, a variance under this code, and it's defined, is any relaxation. It's not even a breach or something along those lines. It says any relaxation of the code is a variance that needs to go to Major Use Special Permit. And the fact -- the Planning director remarked that "Oh, we had some charrettes and we had some things." We're not all up here on a throne looking down to be able to say, "Well, some other meetings happened, so it's okay." No, a particular meeting had to happen, a noticed meeting on a permit application. Chair Sarnoff.• Is there any issue with the fact that he is the Zoning -- a Planning director versus the Zoning director? You just showed me something that said -- you said "Zoning director, Zoning administrator." Are you -- just -- what is your title? Mr. Garcia: My title, sir, is Planning & Zoning director. There is a Zoning administrator who is also a member of the Planning & Zoning Department. Chair Sarnoff Okay. And can I put a name to that person? Mr. Garcia: Certainly. Her name is Irene Hegedus, and she's here today. Chair Sarnoff.• Oh, so it is Irene? Okay. Mr. Garcia: Yes. Her predecessor was Barnaby Min, who is also here today. Chair Sarnoff Gotcha, okay. Mr. Savage: Okay. Thank you, Mr. Chairman. The first thing that's a variance in this matter is something called a liner use or an 85-foot setback. I'll get to a photo -- Chair Sarnoff.• Wait, wait, wait. Mr. Savage: Yes, sir. Chair Sarnoff Apparently I lost quorum. Commissioner Carollo: No, but -- Chair Sarnoff (UNINTELLIGIBLE). Apparently, you can't. How can you go -- how can you do this without quorum? City of Miami Page 5 Printed on 11/5/2014 City Commission Meeting Minutes November 21, 2013 Commissioner Carollo: (UNINTELLIGIBLE) take a vote. I mean, I'll yield, but -- Chair Sarnoff I don't think you do without quorum. We're back, we're back. Mr. Savage: So you're not bored into tears by looking at code, let me show you some photos of what I'm talking about. This is an appropriate liner use. If you look at the second story of these buildings, you see there's office uses there. The whole purpose of what used to be the Midtown Overlay District and is now in Miami 21 as the Midtown West District is to interact with the pedestrian as they're walking along and they're invited -- the pedestrian's invited to use these spaces to go into the stores, to go upstairs. What we're trying to avoid is a concrete canyon. That's why we have these setbacks and the liner uses. So in this particular application, they're required to set it back or put a liner use up there. I'll show you a photo that was used in one of their presentations of the existing Target. You can see there that in the Target structure, they had to either put the liner uses that you can see in my slide or if you see -- where you get to the part where it's just naked parking garage, that is set back at least 85 feet. This is another example of the Target facility. You can see all the way around it there's liner uses or, where applicable, an 85-foot setback. You cannot have a concrete canyon; the setback is required. And if you need a relaxation of this requirement, by all means, go have a variance and go have a special -- either a hearing on the variance or a Major Use Special Permit. You cannot just get it by way of closed -door administrative approval. It's not allowed by the code. This is Wal-Mart's plan. If you look, this is their second floor. You can see that they do not have the 85-foot setback and they don't have these active liner uses. These things that you see on the left, these darker areas, they're going to be back of the house, some storage, things like that. Those aren't going to be offices or other small businesses. And also, you can see that there's a break in those uses. Mr. Lydecker: Can I object at this point? I'd like to pose an objection, that if he's going to cite record evidence that he not mischaracterize the citations of record evidence. It says right there that it's usable liner use, and that's what the blue is. You know, if we're going to start talking about what the evidence shows, let's talk about what the evidence actually shows, please. Thank you. Mr. Savage: Thank you, Mr. Chairman. As I was saying, there is a -- there's not liner uses here, and there's a break there in the middle, and there's' no liner uses, you'll see, on the north or the south end. Mr. Alvarez, my expert, is going to testify that these liner uses along Mid -- that they claim are liner uses along Midtown Boulevard are not. They're mechanical areas. That's the opposite of what Midtown is about, mechanical areas that's just not permitted. Maybe it would be appropriate in the proper variance procedure. They may find that it's okay. I'm not sure. But it's not an administrative approval. Here's their third floor. Again, 85 feet back in or offices and liner uses. They don't do that. They did put down some colored concrete and things, but you don't see offices up there. You don't see the setback that's required. What's really interesting to me about their position is they say, "Well, the walls are up, but their set" -- "the 85-foot setback is on the inside. It's on the inside." So if I'm a pedestrian and I'm walking along, I'm going to see a big wall. The fact that -- they're saying, "Well, we're never going to park a rusty Buick up against the wall, so you'll be fine." Well, that doesn't mean anything to me. I'm the pedestrian experiencing this building. I'm going to see a giant wall. The fact that there's an 85-foot setback inside, it's a ridiculous position. It's like they're saying, "We're going to put a little safety tape down and we promise to never cross it." It does not comply with the setback. Here's another rendition showing, again, they do not have active liner uses there. They don't have the setback. Going on to another variance that we identified. This code mandates certain number of loading berths total by certain number of square -- of thousands of square feet, hundreds of thousands of square feet. In this particular instance, this project fits in the 250, 000-square foot range, and it says "three berths total." This building has five. How do you get from a three berths total code to five loading berths without a variance? Three berths total, five in the project, and that's not a variance, according to my opposition. Another one we have is that the building facades need to all match each other so that there's continuity in the design. Let's go through what their facade City of Miami Page 6 Printed on 11/5/2014 (,2 rof I l� City Commission Meeting Minutes November 21, 2013 looks like. This is their east facade that faces Midtown Boulevard. There's modernity here. There's glazing. There's steel. There's glass. It's very modern. If you look at their west facade and entrances, it's more of a stucco or brick face -- facade. I don't know if that's Mediterranean revivalist, perhaps, or some other treatment, but it's certainly different -- it's a lot different than that, and it's not a continuous building. This is their north with their entryway, and again, this is one of their own drawings. There's glass there around the corner, and then the other style with a varying roof line and it's just very distinct. I don't know how this can be characterized as a continuous design or style. Perhaps they should travel as separate buildings. Another one is blank unarticulated walls shall not be permitted for parking garage facades. You can really tell that the drafters of the code really worried about these big, you know, monolithic parking pedestals. They did not want them, and they're not present in the other buildings. So they said again you have to have liner uses and don't have blank unarticulated walls. So we go to their south elevation and there's a very long blank unarticulated wall. It does have some treatments on the ends. It has some capping with the very modern part on the far right and the more traditional part on the far left, but for hundreds offeet in the middle, it's a giant wall. They'll test fy that there is some scoring and some fake bricks that -- you know, some precast decoration there, but it's a blank wall. It certainly doesn't meet the code's requirement for architectural articulation or a liner use. This is the visual from North Miami Avenue looking up towards where this project is. My opponents make a big deal that there's a Pikes Brothers demolition business that's been there forever, and their point is "Hey, there's going to be this blank wall, sure, but it's just the Pikes Brothers. I mean, who cares. It's just Pikes Brothers there. You're not going to be able to see. We can have that there." `It's an interior wall," they say. But if you look -- this was prepared by my expert. He'll talk about this -- that there's the Pikes Brothers building and there's what the Wal-Mart building will look like. The Pikes Brothers building is about maybe a story and a half there at its tallest. This thing is 60 feet or so. I mean, that is a blank, unarticulated wall. We have some loading docks that are out of code and some others. I'm going to leave some of these more technical issues to my expert, Mr. Alvarez. He's going to come over. He has a CD (compact disc). He's -- he also has his own slides that he's going to show. I just hope that I've successfully framed up the law which requires if there's a variance, you cannot administratively approve it. Why is that so important? What's the public policy? So that it's not behind closed doors and that we have all of the public hearings that are required in a Major Use Special Permit. And if there was ever an administrative discretion, if there was ever a case, this giant supercenter with all of these people involved, this is -- we're not asking to torpedo this project. We're just asking for the law to be enforced. That's it. And with that, I'd like to ask my expert to please come forward. Thank you. Mr. Lydecker: IfI can go ahead and pose one objection at this time in terms of housekeeping. We're here in an appellate capacity, and I get that there's latitude. But I just heard a couple new issues that, after two years of this, they're trying to inject new issues that are not included within their appeal. So if this is going to be "let's just throw the spaghetti up against the wall and what about this and what about that? " I would respectfully request that he be limited to the issues raised in his appeal and not to be able to go on a wild goose chase here. Chair Sarnoff. Well, Madam City Attorney, what is your take on this? Ms. Mendez: At this time, it's de novo, so he can be able to give information that maybe he did not list before in a prior hearing. However, he should be limited, to a certain extent, to what he presented in his appellate documents. But it is a de novo hearing. Chair Sarnoff What is the mechanism of appeal? Is there a document that he appeals? Ms. Mendez: It has been done in different ways. It could be a memorandum of law. It could be a letter with all sorts of documents and -- Chair Sarnoff Is there anything that we could look at to show what his reasons -- the stated City of Miami Page 7 Printed on 11/5/2014 City Commission Meeting Minutes November 21, 2013 reasons for the appeal are? Ms. Mendez: Oh, his original submission? Yes, it's part of the record. Mr. Hannon, do you have any -- do you have a copy of the original submission by Mr. Savage? Or Mr. Savage, do you have a copy you want to --? Mr. Savage: Yes. It's in the legislat -- it's got to be in your legislative package. It looks like this. It basically says -- it enumerates the code and says, "You can't have variances without going to a Major Use Special Permit." Chair Sarnoff Okay. Mr. Savage: And as the City Attorney points out, it's a de novo proceeding. Mr. Lydecker: IfI can be heard. A de novo proceeding is still limited to the scopes of the grounds of the appeal. De novo only connotes whether or not you can look at the underlying facts again, the facts that the UDRP [sic] decided in our favor; the Planning & Zoning Appeals Board decided in our favor. You could sit in de novo review on those, but that doesn't mean we go outside the scope of the appeal. Chair Sarnoff No, I agree with you. Where do you think he's gone beyond the scope of his appeal? Mr. Lydecker: He -- Chair Sarnoff: You've read this, obviously; you've studied this. Mr. Lydecker: What was most obvious was his reference to parking garages not fitting properly, which is not really what the issue was. His appeal stated that we shouldn't have five; we should be limited to three. And now all of a sudden, I'm seeing pictures up there about them not being fitted properly, which is a scaling or -- but that's never been addressed. He never had that before the UDRB. He never had that before -- Chair Sarnoff: But he did bring up parking garages? Mr. Lydecker: As the numeric number. Chair Sarnoff: Numeric, not height? Mr. Lydecker: Right. Chair Sarnoff So height is new to you. Okay. Mr. Gibbs: Mr. Chairman, may I speak to this as co -counsel? This is a public hearing, and as a public hearing, any member of the public can get up and make any argument they want to make and present evidence to that argument, and that is perfectly legitimate in this kind of administrative hearing. Chair Sarnoff Is the public hearing subject to what anybody wants to say? Ms. Mendez: The public hearing will be -- as Mr. Gibbs knows, it will be allowed but at the end, and it will be limited to two minutes per person. Chair Sarnoff So what he has said is generally correct? City ofMiami Page 8 Printed on 11/5/2014 goH' City Commission Meeting Minutes November 21, 2013 Ms. Mendez: Generally correct. But as Chairman, and this Commission can, you know, limit certain inforatmion if they've already heard it, if they remember it, if they want to -- Chair Sarnoff All right, I gotcha, I gotcha. Ms. Mendez: Thanks. Mr. Gibbs: Thank you. Chair Sarnoff All right, I'm going to let them continue, Mr. Lydecker. Mr. Lydecker: Thank you. Mr. Savage: Okay. I was just going through a segue, and I'm going to introduce MarkAlvarez, and he has materials and a CV (curriculum vitae) also. MarkAlvarez: Good evening. Could somebody in the AV (Audiovisual) switch over to the computer on this side, please? Good evening. I'm MarkAlvarez. I'm a professional planner. I was asked to review this proposal for the Wal-Mart. I was asked to review it as a professional planner with regards to how it satisfies the applicable Zoning code, which would be Miami 21 and the 627 section -- or the SD-27 section. I did that. And I don't seem to have a screen yet. Mark Emmanuel: If we could be heard on one objection. I'm sorry; Mark Emmanuel, with Lydecker Diaz. I see they're distributing materials. I know the rules require that materials be distributed 48 hours in advance of the proceedings, any documents they're going to rely on, I believe, and I don't believe these were distributed. And also -- Chair Sarnoff I would tell you that Commissioner Carollo would tell you it's five days. Mr. Emmanuel: Okay. Chair Sarnoff: So -- Mr. Emmanuel: And -- Commissioner Carollo: Five business days. Chair Sarnoff Right. I got to tell you, I think in a quasi-judicial manner, we're going to listen to the evidence and what's presented. I hear what you're saying, Mr. Emmanuel. It's pretty -- I could tell you this, it's pretty detailed, so our ability to read this very quickly would be very d cult. Vice Chair Gort: It's not going to be done. Mr. Emmanuel: And will we be also allowed an opportunity to voir dire him on his qualifications? I think in the back of that package -- Chair Sarnoff: If you want to voir dire on his ability to testify based on his expertise, you're right, you can do that right now. Mr. Emmanuel: Just a couple of questions, sir, ifI could. Have you ever before prepared and filed a Class II permit application for Midtown? Mr. Alvarez: I'm sorry; would you say it again? City of Miami Page 9 Printed on 11/5/2014 City Commission Meeting Minutes November 21, 2013 Mr. Emmanuel: Have you ever before prepared and filed a Class II permit application for Midtown in the last 12 months? Mr. Alvarez: No. Mr. Emmanuel: In the last two years? Mr. Alvarez: No. Mr. Emmanuel: In the last three years? Mr. Alvarez: No. Mr. Emmanuel: Ever? Mr. Alvarez: I have not prepared a Class II permit for Midtown. Mr. Emmanuel: Have you ever -- one of the issues raised -- been called upon to interpret and apply the provisions of special -- SD-27 with respect to loading berths, for example, for a project? Mr. Alvarez: Not in SD-27. Mr. Emmanuel: Okay. Have you ever -- let me strike that for a second. Did you give testimony before the UDRB or the PZAB (Planning, Zoning & Appeals Board) on this particular application? Mr. Alvarez: No, I did not. Mr. Emmanuel: Okay. Have you ever been called to interpret and apply the provisions of SD-27 with respect to application to interior lot line walls or scaling issues? Mr. Alvarez: Not to those issues in SD-27. Mr. Emmanuel: Okay. Have you ever been called upon to interpret and apply the application of SD-27 with respect to the setback requirements for projects in Midtown? Mr. Alvarez: Not with respect to SD-27. Mr. Emmanuel: Okay. I -- to shorten the process, I understand you have looked at, I believe, the -- have you looked at the appeal -- appellate application or letter raising the issues on appeal? Mr. Alvarez: I have, but that was not my source for my analysis. Mr. Emmanuel: And these specific provisions then cited in that appeal with respect to those seven issues all involve SD-27. Have you been called upon to interpret and apply those in any other setting before tonight? Mr. Alvarez: Yes. Mr. Emmanuel: Okay. And in what setting was the last time you were asked to do that? Mr. Alvarez: I have applied the -- I have done this type of analysis for zoning analysis of various developments numerous times, probably about 50 times over career, quite a few of them in the City of Miami but never in SD-27. City ofMiami Page 10 Printed on 11/5/2014 /0 oFl City Commission Meeting Minutes November 21, 2013 Mr. Emmanuel: Okay. Sorry. Hold on one second. Is it fair -- I'm sorry. Mr. Alvarez: Yes. Mr. Emmanuel: I'm sorry. Is it fair to say then that you are not familiar with the application or interpretation of these rules with respect to any pending application, pending application now for Midtown? Mr. Alvarez: I'm sorry; would you -- just say it slowly and I'll --? Mr. Emmanuel: Sure. Is it fair -- Mr. Alvarez: -- a few questions. Mr. Emmanuel: -- to say you're not familiar with the application or interpretation of these rules for any pending application in Midtown? Mr. Alvarez: I am familiar with the application of these rules, and I'm familiar with Miami 21 and the application of Miami 21, as well as the old 11000 code. Mr. Emmanuel: But the provisions of -- Mr. Alvarez: You seem to have two questions there, and I'm trying to answer. Mr. Emmanuel: I'm sorry; the provisions of SD-27 with regard to pending application. Mr. Alvarez: Not with SD-27. Mr. Emmanuel: Okay. No further questions. Mr. Alvarez: I seem to have a technical dif -- are we good to go? I think -- Chair Sarnoff Wait. Where is -- okay, he's here. Mr. Alvarez: Okay, thank you. If you could follow along in the books. I apologize; it's not coming up on the screen. Chair Sanf.So you want us -- walk us through --? Mr. Alvarez: If you would. It's the same as the presentation. Chair Sarnoff Go ahead. Mr. Alvarez: Anyway, I -- my first page was my qualifications. I think we've -- I've worked -- Chair Sarnoff: Want to briefly put your qualifications on the record -- Mr. Alvarez: Yes. Chair Sarnoff. -- because -- Mr. Alvarez: I'm -- Chair Sarnoff -- all we've heard is (UNINTELLIGIBLE). City ofMiami Page 11 Printed on 11/5/2014 /7 of ao City Commission Meeting Minutes November 21, 2013 Mr. Alvarez: Yes (UNINTELLIGIBLE). Chair Sarnoff: Let's hear the positive. Mr. Alvarez: I've been a planner in the state of Florida for over 20 years and the ICP from 17 or so years ago. I have a great deal of experience with zoning -- reviewing zoning code and, in fact, amending zoning code and comprehensive plans in Florida. I have reviewed developments with respect to the Zoning Ordinance. It's in the range of about 50 times, probably, several of those were in the City of Miami -- I don't know exactly how many -- under both 11000 and Miami 21. I do other work. I am a transportation planner as well. I do corridor area planning studies, capital improvement programming, and my resume is attached to the back of the booklet. A few conventions I wanted to set out for the exhibits. Are we up? Okay. I think we have the presentation up. Let me switch. Okay. Well, I'll keep going until it's actually up. I wanted to go through a few conventions -- It's -- okay, it's up -- regarding the presentation. It's a little bit off the page. I know we have a lot of material to cover tonight. I was very careful. I wanted to not make any confusion between marks and texts that I put in the presentation and what's already there. So everything that's in this presentation is either from a public source or from the Legistar file. Any time that I want to draw emphasis, I use highlighting and a bright red line. And any time that I've added text to the presentation, it's in a gray box with red text and red arrows so it's pretty easy to d fferentiate from the rest of the file. There are four issues that I'd like to talk about. The first is the -- the first two are really, for me, major planning issues. And when I say that, I mean that they really go against what was intended for this district. And the first is that the 65 percent pedestrian -use frontage along North Miami Avenue is not adequate, is not met. The second is that the second story parking liner uses are also not adequate. Two technical issues, I think, and when I say "technical, " it doesn't meet the code, but they are less connected to the overall intent for the district. Mr. Emmanuel: If we could -- ifI could object on one issue he raised. It's nowhere in the scope of the issues raised in the appeal, which is that first issue, the 65 percent pedestrian usage frontage requirement met along North Miami Avenue. This is one of the reasons why we objected early on to this interjection. Chair Sarnoff All right, so let me let him respond. Show me in your submission where you brought that up or, peripherally, however? Mr. Alvarez: When I reviewed the -- Chair Sarnoff No, no, no. I'm looking for the attorney. Mr. Alvarez: Okay. I'm sorry. Chair Sarnoff: I'm not -- sorry, Mr. Alvarez. Mr. Alvarez: No problem. Chair Sarnoff I'm looking for the attorney to give me a response. Where in your October 17, 2013 appeal, you have brought to the attention of the City and, thus, the appellee this issue? I'm hoping you're looking at your October 17, 2013 appeal. Mr. Savage : I'm getting there, Chairman. Thank you. Thanks for the -- Chair Sarnoff My copy. Mr. Savage : -- opportunity. Hold on. City of Miami Page 12 Printed on 11/5/2014 cri-1 City Commission Meeting Minutes November 21, 2013 Chair Sarnoff "De novo" does not mean you get to bring in anything you want. Mr. Savage : All right, as I look at my written paper, okay, I have boards and exhibits that were prepared and submitted as part of the record of the PZAB hearing, okay. And one of my major points of the PZAB hearing was that the UDRB had some significant major problems with this application and -- Chair Sarnoff Mr. Alvarez, I'm going to ask you a question. Mr. Savage: Yes. Chair Sarnoff In your October 17, 2013 hand -delivery appeal, do you address in any manner, shape, or form the 65 percent pedestrian use frontage requirement not met along North Miami Avenue? If you do, just point us to the section. If you don't, then tell me that "You know what; I think I addressed it in other ways." Mr. Savage: I'm going to answer. I do -- I cannot point to a textual statement in my letter appeal. However, I think it's a fair statement and a correct statement of law that everything from PZAB is part of this record, and we had other presentations, and exhibit boards, and arguments that the UDRB had major problems with this issue. One of those that's enumerated in one of the public record -- part of this record and the public record is a resolution of the UDRB. Chair Sarnoff I understand your point. Mr. Savage: Okay. Chair Sarnoff: I'm going to let you proceed. Is there -- stop for a second. Mr. Savage: Yes. Chair Sarnoff: Is there any other part you want to argue is not part of the record on this slide that is showing now? Mr. Emmanuel: No, but just one quick point. When he says the UDRB, what is a part of the record is the UDRB resolution, and it only took issue with two things. He's citing to the original meeting, which was continued. They made no specific finding or ruling. Chair Sarnoff Okay. Mr. Emmanuel: And this is not among the two things they took issue with. Chair Sarnoff I gotcha. I just -- I want the other Commissioners to understand what you're saying. So your point is the 65 percent pedestrian use frontage requirement -- you're not on legal notice of that? Mr. Emmanuel: Correct. It's not within the scope of the appeal and it's not within the grounds denied -- for denial recommended by the UDRB -- Chair Sarnoff Understood. Mr. Emmanuel: -- on February 20. Chair Sarnoff Proceed. City of Miami Page 13 Printed on 11/5/2014 City Commission Meeting Minutes November 21, 2013 Mr. Savage: And I'll just respond. I am holding up a resolution of the UDRB that in paragraph number 2, they identified it. Whether there was a subsequent resolution that listed that or not, this was a big part of our presentation. Please continue with your presentation. Mr. Alvarez: Should I proceed? Chair Sarnoff: Yes. Mr. Alvarez: Let me start on the first issue, if I may proceed with that. For me, I'm happy to present this issue, because I think it is the most important issue and it is really central to, I think, what's gone on here and what's gone wrong. In the "intent" section of 627, it talks about the intent of the district, of the SD-27 district, and it talks about the idea that what we wanted to create here was a 24-hour pedestrian environment with a mix of uses, and retail, and residential and office, and it goes on to talk about how the district regulations were designed to enhance the pedestrian environment -- it's the red underline -- and connectivity to the exiting surrounding areas by extending the City's (UNINTELLIGIBLE) through the district and that this is not only for design, but it's talking about a maximum inter -relationship with ground floor building uses, the relationship between uses. It's not just about the design or the amount of glass that's on the street if nothing's behind it. So to the -- to satisfy that -- and let me call your attention to one other thing. It's not only about creating a connected -- a pedestrian- connected district within SD-7 [sic]. This is about the impact of that district to anchor the areas around it. That's why it says "the connectivity to the existing surrounding areas." My presentation of this issue is really about Wynwood. It's about anchoring this district so it helps Wynwood and what's south of here along North Miami Avenue, the boutiques, the galleries, the new eateries and so forth. We need to establish the pedestrian connection across that to get across 29th Street or to 29th Street. So a few definitions. On the left side of the page there is the pedestrian orientation definition. It doesn't show up on the screen here. It's in your books. And that's from the Miami 21 code, and it talks about a few things for pedestrian orientation, and one is that none -- again, it's not only the look, but it's the use behind there; that is a retail use, it's a public use, and that it has access. Access is critical to pedestrian orientation. A definition of active -- Mr. Lydecker: Can I object? Mr. Alvarez: I'm sorry? Mr. Lydecker: Could I object, please? Mr. Alvarez: Yes. Mr. Lydecker: This is the second time where we're jumping back and forth between Miami 21 and the design standards. Miami 21 is not applying to a special district design. That's the code we're applying here, the design standards. Miami 21's only going to apply to the extent of procedure. So if we're pulling out code sections here to say that we should be doing this and this and this, we're confusing apples with oranges, and I want that recognized and clear, please, right now. Chair Sarnoff: Madam City Attorney, is that a correct statement of the law? Ms. Mendez: With regard to -- The best thing is the objection is noted for the record, and we can proceed. Chair Sarnoff That's not -- I can note an objection for the record. This is why you're the City Attorney, and this is where you have the tough job. You have got to advise us right now. Is Miami 21 the vehicle of procedure or is it the vehicle of substance? City of Miami Page 14 Printed on 11/5/2014 City Commission Meeting Minutes November 21, 2013 Ms. Mendez: For this hearing today? Chair Sarnoff Is he -- first of all, is he quoting from Miami 21 as suggested by the appellee? Ms. Mendez: As suggested by Mr. Savage's -- Chair Sarnoff.• I think the objection is lodged by Lydecker. Mr. Lydecker: And I would address that also to the Planning director, because he might also be able to speak on it. Chair Sarnoff• So let me ask the Planning director. Are we -- first off, is what is being quoted to us Miami 21? Mr. Garcia: As mentioned earlier, the SD-27 Midtown zoning designation is a vestige -- is a legacy zoning designation from Zoning Ordinance 11000. It has been included into Miami 21 through Appendix C. It stands alone. It contains any and all applicable regulations regarding any development to take place there. It is a very specific master plan district and, therefore, it is self-contained. To answer your question, all reference to design standards and guidelines should be made within the SD-27 zoning designation. Chair Sarnoff All right. So we were just being read, I believe, from 627.2.1. Ms. Mendez:: Which is an appendix to Miami 21 right now. Mr. Lydecker: Right here it says that Miami 21 in the upper left-hand corner -- Chair Sarnoff.• Should, Mr. Director, I be considering substantively what he is saying, or is that not part of SD-27? Mr. Garcia: Regulations contained in Miami 21 do not necessarily apply to SD-27. In most cases, they don't. I cannot think of any cases where they do. So if the argument that Mr. Alvarez is making is based on language contained under Miami 21 not the appended "C" component of the code, if it is based on that, then it does not apply. Chair Sarnoff All right. Mr. Alvarez, do you concede that this is not part of the appendix, a part of the code? Mr. Alvarez: My understanding is that the code is taken as a whole and that it's an appendix to Miami 21. In fact, I'm using definitions, which is not actually a design standard that's in conflict with 627. It's a definition to help us understand it. Mr. Lydecker: The design standards -- Chair Sarnoff I'm going to let you have the last word. Go ahead. Mr. Lydecker: -- stand alone. They created Miami 21. They said, "Okay, let's apply the design standards to the special district. We'll make them free-standing. We'll attach them to the back of Miami 21 and we'll follow those rules." And those were the same rules that public hearing gave out 2003, when we had about ten public hearings to create the rules of the road. So him jumping between rules changes the rules on us. Chair Sarnoff.• So -- Ms. Mendez: The -- City of Miami Page 15 Printed on 11/5/2014 City Commission Meeting Minutes November 21, 2013 Chair Sarnoff -- 627.2.1, Mr. Lydecker, is it your contention that that is not part of the SD-27? Javier Fernandez: Mr. Chair, if I may. Javier Fernandez, with Akerman Senterfitt, here on behalf of the applicant and contract seller. To clarify -- Chair Sarnoff You know, I got to tell you guys something. To answer a simple question, it has taken four lawyers -- Mr. Fernandez: Let me -- you're right. Chair Sarnoff -- and -- Ms. Mendez.: Mr. Lydecker is right as he described it right now. This version, which is -- Mr. Fernandez: The pedestrian orientation -- Ms. Mendez.: -- 626, was part of 11000, and it was taken -- it was done very late into 11000, and it was taken as an appendix and placed at the end of Miami 21, so 627 is what you need to be looking at, as Mr. Lydecker described. Mr. Fernandez: Mr. Chair, to augment the City Attorney's response, if may? Chair Sarnoff Go ahead. Mr. Fernandez: Very briefly, the rules of the road, procedurally, were governed by Miami 21 under this section. With respect to the substance and definitions, the definitions of Ordinance 11000 apply, so we take objection to the use of the pedestrian orientation definition from Miami 21 in this context, 'cause it does not apply within the Midtown West District. Chair Sarnoff And that's my understanding of your objection. Your objection is 627.2.1, section regarding pedestrian enhancement environment, should not be considered. Now, I'm going to ask -- go ahead. Mr. Garcia: Sir, on that, let me try to clarify, at least, your Planning & Zoning Department's position. The Midtown zoning designation, the Midtown District, SD-27 in this case, SD-27.2, or Appendix C, all of them mean the same thing. That body of regulations is self -referential, full stop. Procedurally, Mr. Fernandez is correct; Miami 21 applies, but this is not a procedurally issue. This is a substantive issue. Now we are here to tell you that as pertains to design standards and guidelines, those contained within SD-27 have been met, full stop again. The section Mr. Alvarez brings up, to the extent that it makes reference to SD-27, it has been complied with. We're happy to show that when the time comes. If anything else, any other interpretations are being used by him that are contained in Miami 21 and not in SD-27, those do not apply. City of Miami Page 16 Printed on 11/5/2014 0-f/6