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HomeMy WebLinkAboutSubmittal-P&Z Department-Analysis, Response to Mr. Carvers letterSubmitted into the public1 record fQr prick) Nn • on I I Lb City Clerk Planning and Zoning Department responses to Mr. Craver's letter Dated November 21, 2016 regarding proposed revisions to Island Gardens MUSP also known as Flagstone. In Mr. Craver's letter, contains remarks that require clarification of the process by which a previously approved MUSP may be amended. The letter can be broken into four issues: 1) Development Capacity; 2) MUSP modification amendment criteria under the 11000 Code; 3) Labeling Ancillary Uses; and 4) DRI consistency. • It is important to note that revised plans were submitted in January 2017 to respond to staffs request for clarifications since the submittal of Mr. Craver's letter in November 2016. o Since September 2016 the parking had been reduced to 1530 spaces o Additional clarification on break down of uses o Height is measured from the FEMA Flood Plain of 9-feet o The applicant's representatives are working with the City's Office of Transportation and FDOT to determine what, (is any) updates are necessary for proposed modifications to the MUSP. The Warrant notification letters were sent out in advance, to abutting neighbors, the City Commissioner where the proposal is located, all registered associations in the applicable NET office, and the Applicable NET office. No determination has been made to approve the Warrant request. Additional information is required for analysis. What has been submitted to staff is an application to modify a previously approved MUSP (2007) for Flagstone. This request was received in the summer of 2016. Pursuant to Miami 21, Article 7, Section 7. 1.3.5.(d)1... The components being modified after modification shall be in compliance with this code, even though the remainder of the approved development plan is not in full compliance with this code, and shall not increase previously approved overall development capacity. Previously approved is in bold to emphasize that even with the proposed modifications the MUSP Complies with the allowed FLR; Comply with overall heights; Comply with Podium height; and Comply with parking standards. I`l�6-Sm\a,��tt\_Q��,�epar\tien-Nho\ys,5A-hQonse\o Mc.�,ruers ���e� 2I Submitted into the public�1 record f r i e s V r\. on City Clerk Issue 1 in letter provided by Mr. Craver Development Capacity PZ Department Response to issues under #1 Development Capacity 1.a The new Flagstone proposal increases floor area, or development capacity, by 425,760 square feet compared to that authorized in the 2007 MUSP. Under section 7.1.3.5. d. of the Miami 21 Code, a modification to a Major Use Special Permit "approved under a previous code" may not be modified as a minor modification if it would "increase overall Development Capacity." Development Capacity is defined in Miami 21 as "Floor Area." 1.a Review of the 2004 MUSP section reveals that development capacity took place above the 9- foot FEMA elevation of the flood plain benchmark. Therefore, if calculations for the previously approved MUSP were processed under MIAMI 21, these areas would have been Floor Area standards and added to the overall FLR. 1.b Documents previously supplied by Flagstone show that P&Z is trying to negate this fact by subtracting "parking below grade and an air conditioned, sky lit retail area." However, these criteria are not exempted from the definition of "Floor Area" under the Miami 21 Code. Flagstone and the City staff purport to justify this evasion by relying on "FLR" calculations instead of "Floor Area" calculation that is the methodology mandated under the plain language of the Miami 21 Code. This manipulation not only seeks to avoid the proper review of these changes, it conceals a massive 23% increase in the size of the project over what was previously approved. 1.b The PZ Department is assessing the request. Pursuant to Article 6, Section 5.6.4(b) Building Function & Density... The calculation of the FLR shall not apply to that portion of the building that is entirely below the base flood elevation. The proposed revisions to the MUSP include one level of parking completely Below the FEMA base flood elevation. 1.c Similarly, P&Z's determination is called into question by the Planning Department's egregious manipulation of the rules captured in a public records request disclosure of emails showing Flagstone was advised to manipulate its calculations deceptively to allow consideration as a minor modification, i.e. without traffic studies, public hearings, and Commission review-- and then, after approval, reinstate its original plans to again be treated as a minor modification. Specifically, Flagstone's attorney wrote that she was advised "in order to keep all plans within a minor modification," to "remove the skylights from the current submittal," but that after "it has been determined minor, we can then go back 1.c this is incorrect. The conditions for the Warrant review clearly indicate that more information be provided including an updated Traffic Study. Submitted into the publiq \ n record lforit) .Z on i i i .n ► ► ► City Clerk with revision submittal to add the skylights." Such manipulation of our laws cannot be tolerated. Issue #2 in letter provided by Mr. Craver modification moves the building footprint more than ten feet Issue #2 in letter provided by Mr. Craver modification moves the building footprint more than ten feet Issue # 2 PZ Department Response 2. Contrary to Flagstone's letter to the City, the 2. The reference to the 11000 Code, Section proposed modification moves the building 2215.1., is not applicable because PZ correctly footprint more than ten feet. uses the current Code, Miami 21. Moving the footprint more than ten feet is, by A modification of a previously MUSP is reviewed City of Miami Code of Ordinances definition -- a under Miami 21, Article 7, Section 7.1.3.5(d) "substantial change" under Section 2215.1 which states the following: (including as a substantial change "The footprint of the building is proposed to be moved by more An applicant may modify a special permit than ten (10) feet in any horizontal direction"). approved under a previous zoning code, as a The new proposed building footprint extends minor modification through the Warrant process. over 100-feet to the south to encompass much of The components being modified after Tract C; whereas, the 2004 approval did not modification shall be in compliance with this propose any building footprint on Tract C, only an Code, even though the remainder of the approved entry ramp and landscaping. Flagstone's development plan is not in full compliance with application extends the building well beyond 10' this Code, and shall not increase previously and uses this area for the parking structure with over 250 parking spaces, a loading dock with 8 berths and area for storage. Flagstone confuses approved overall Development Capacity. Staff is reviewing the plans under the "project footprint" with "building footprint" to requirements in Miami 21, Article 7, Section disguise the movement/increase in building footprint referenced in the City Code in order to justify treatment as a Warrant. 7.1.3.5.d Submitted into the public11 n record f r iteTig (s) NT1. 7 on l I L, 6 . City Clerk Issue #3 in letter provided by Mr. Craver Labeling of ancillary uses Issues #3 PZ Department response to labeling ancillary uses 3.a Flagstone is proposing to add 136,140 square feet of new retail development to the approved 225,000 square feet, The 70% increase in retail space disguises the new retail space as undefined "Hotel Ancillary" use. Although Flagstone and the City are likely to argue that this additional square footage is automatically allowed under the Code as Hotel Ancillary, this argument is contradicted by the plans submitted. 3.b Pages A006, A0031, and A0033. The hotel ballrooms, pre -assembly areas, meeting rooms, spas, guest rooms, arrival lobbies, sky lobbies, hotel function areas, pool decks, kitchens, back of house or storage areas, i.e. true hotel ancillary uses, are all specifically noted on the plans. The additional 136,140 in retail and restaurant uses are in addition to those which are truly and clearly "Hotel Ancillary," hence they are undoubtedly open to the public and therefore properly treated as additional retail space. Per Sec. 13-53 City of Miami Code of Ordinances hotel and ancillary facilities are defined "Hotel use shall mean any facility containing more than one "lodging unit," as defined in the zoning ordinance, and may include meeting and banquet facilities and convenience goods and services for hotel guests, provided that the total of such ancillary facilities shall not exceed 15 percent of the gross square footage of the proposed hotel." This is also the origin of the 15% allowance used Flagstone. 3.a Ancillary uses are distinct uses that are not retail uses. Therefore the maximum allowed for retail uses cannot be exceeded. Staff acknowledges and agrees that specific ancillary uses need to be provided and has requested that the applicant provide this information. However, per the applicant these uses are in fact ancillary and not retail in nature. 3.b The representative form Flagstone has indicated that the exact programing of the hotel is still being determined. They are concerned about submitting ancillary uses and one ancillary use for another in the future. Hotels are allowed up to 15 —percent of ancillary uses based on the gross square footage hotel area pursuant to the definition of Hotel Use found in the City Code of Ordinances, Article II Section 15-53. The proposed ancillary uses shall be included on the plan sheets for the requested Warrant. Additionally, any approvals granted for the project will call out specific conditions to comply with the maximums stated per the Development Order resolution for the MUSP. 5 I P a g Submitted into the public a record or it (s) on 1 i1,ti111 City k Issue #4 in letter provided by Mr. Craver DDRI consistency PZ response to Issue of DDRI consistency 4. a The proposed increases violate the Downtown Development of Regional Impact Development Orders. The proposed increases in development capacity and retail square footage, as well as the increase in parking spaces (from 1650 to 1752) and inclusion of a substantial amount of "residential" units in both hotels, violate the 2004 Downtown Development Authority Development of Regional Impact ("DDRI") Master and Increment II Development Orders ("2004 DDRI Amendment"). 4a. The proposed modification do not violate the Development Orders for the MUSP. The DDRI Development Order as modified by Resolution 04-00558, permits the following uses for Flagstone: -Hotel rooms shall not exceed 605 rooms -Retail uses shall not exceed 225,000 SF -Parking shall not exceed 1,700 parking spaces -Mega yacht marina shall not exceed 50 mega yacht slips -All with associated accessory uses as may be permissible pursuant to the underlying zoning classification. The application complies with the maximum listed herein. However, they need to clarify what the proposed ancillary uses are and to clearly label the lodging units. 4.bP&Z's willingness to allow these changes to be treated as minor modifications also violates State law. Contrary to P&Z's present actions, any amendments require approval via a Notice of Proposed Change (NOPC) under section 380.06(19), Florida Statutes. That is, they require "an application to the local government to amend the development order in accordance with the local government's procedures for amendment of a development order," i.e. a properly conducted traffic study meeting State and professional criteria and showing all relevant impacts, public hearings, and a right of appeal. If approved, State law also requires review by the relevant State agencies for possible regional impacts. 4.b PZ has not violated State Law. For clarification, a NOPC ("Notice of Proposed Change") is required for "Substantial Deviations" to DRIs by Florida Statute 380.06(19) only in three (3) cases: 1. Any proposed change to a previously approved development that creates a reasonable likelihood of additional regional impact. 2. Any proposed change to a proposed change to a previously approved DRI or DO condition which causes the development to exceed statutory thresholds of "non -substantial deviations." 3. An extension to the buildout date by more than 7 years. As presented, there are no substantial deviations to Flagstone nor to the Downtown DRI by this proposed modification to the MUSP as it relates to Florida Statute. If the modifications trigger any of the three criteria expressed above the project will be subject to the NOPC. 6I Submitted into the publi record fqr�) on \ I16 �� City Clerk T1 .t Finally, as mentioned earlier in this discussion, the applicant is working with both the City's Office of Transportations and FDOT to update or provide a new Traffic Study as required by those agencies. 4.c To be clear, Flagstone's proposed introduction of a substantial amount of residential units in both hotels is a blatant violation of the DDRI, crossing a red line that has been well-known since the project's inception. The DDRI provides: "[T]he City will not permit the simultaneous increase or decreases to convert a development on the Watson Island Property to residential uses." Yet, Flagstone's latest plans clearly show portions of the hotel properties as being designated for "residential." Pages A032 and A033. 4.c The 2004 MUSP was approved with "fractional units" which are also known as "time shares". The corresponding MUSP plans -specifically elevations- from 2004, 2007 used the terms "res club" or "residential club" and "residential". Per the applicant these were to indicate the located of the "fractional units" and not residential units. As these units were part of the original MUSP, PZ has requested that the applicant provide more information regarding the "fraction units" to ensure that they were included in the approved 2007 MUSP modification. However these sheets will be revised to label the lodging units correctly. 4.dAlso representative of a substantial change proposed by the application is an increased number of loading berths from 7 in 2004 to 17. This is a 240 percent increase in the number of bays for tractor/trailer deliveries. Sheet A001 shows 8 berths; however, all Level 1 Parking drawings show 17 loading berths. The increase in loading berths is likely explained by the need to service the additional 136,140 retail and restaurant space included in these plans. Any applicant, not just Flagstone has the right to request a review to modify a MUSP. In the case of Flagstone, the applicant provided staff materials to review in order to determine the process to amend existing MUSP. Miami 21 Article 7, Section 7.1.3.5.d (Modifications to special permits and Variance approved under a previous code) clarifies that the process for modifications is either 1) a minor modification which is processed through a Warrant; or (2) not a minor modification which is process through the Exception process. 71 Submitted into the public A record fr ite (s) on 1 I ID I l , City Clerk A request does not grant an automatic approval but sets the parameters of review and analysis that must be addressed before any determinations are made. The Warrant process written notification of abutting properties, the commissioner, registered neighborhood associations representative, and Net Office; the plans are all public record, nothing has been "behind" closed doors in the review of said request. The Warrant has not been approved, as there are additional clarifications required by the applicant to be analyzed by staff.