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HomeMy WebLinkAboutAppeal Letter to City CommissionHolland & Knight 701 Brickell Avenue, Suite 3300 f Miami, FL 33131 I T 305.374.8500 I F 305.789.7799 Holland & Knight LLP I www.hklaw.com March 22, 2017 VIA HAND DELIVERY Ms. Olga Zamora Office of Hearing Boards City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Ines Marrero-Priegues 305.789.7776 ines.marrero@hklaw.com Re: Appeal of the Historic and Environmental Preservation Board Decision Resolution No. HEPB-R-17-017 to Miami City Commission Dear Ms. Zamora, The undersigned is the legal representative of Daydreaming, LLC ("Owner"), Owner of that property located in the City of Miami at 3140 Day Avenue (the "Property"), and subject of Resolution No. HEPB-R-17-017, passed and adopted on March 7, 2017. On January 19, 2017 the Department of Planning & Zoning/Environmental Resources Division issued an Intended Decision for Application No. BD16-009931-001 to approve the request to remove 2 trees for a new 2 story duplex project (the "Intended Decision"). Specifically, the Intended Decision approved the removal of one (1) 38 foot tall, 24 inch DBH (diameter at breast height) Ficus aurea and one (1) 23 foot tall, 33 inch DBH Schefflera actinophylla. The Intended Decision required the planting of five (5) 16 ft. tall, 4 DBH red stopper trees as mitigation for the loss of tree canopy. On January 30, 2017, Mr. Nathan Kurland, appealed the Intended Decision to the Historic and Environmental Preservation Board ("HEPB".) On March 7, 2017, the HEPB denied Mr. Kurland's appeal, but conditioned the Intended Decision on 11 conditions, which are included in the HEPB Resolution, Exhibit "A". On behalf of the Owner, we respectfully but vehemently object to these conditions and appeal the decision on this basis. Set forth below are some of the reasons for this appeal: Atlanta I Bethesda I Boston I Chicago I Fort Lauderdale I Jacksonville I Lakeland I Los Angeles I Miami I New York Northern Virginia I Orlando I Portland I San Francisco I Tallahassee J Tampa I Washington, D.C. I West Palm Beach Ms. Olga Zamora Office of Hearing Boards March 22, 2017 Page 2 1. These conditions are all unrelated to the Intended Decision. As stated above, the Intended Decision concerned the removal of the two enumerated trees. Several of the HEPB conditions concern specimen trees that are not proposed for removal or relocation by the Owner. 2. Some conditions, are not only unrelated to the Intended Decision, but they are also ulna vires, i.e., the condition exceeds the scope of the HEPB's authority in reviewing the Intended Decision. One such conditions, for example, is Condition No. 7 which requires that the owner record "a covenant prohibiting the installation of a swimming pool without approval from the Historic and Environmental Preservation Board." The site plan submitted to the City of Miami Building Department, BD 16-009931-001, does not propose a swimming pool. In their review of a tree removal permit, the Board does not have authority to require that the Owner's property be encumbered by a Covenant that bears no relation to the trees that will be removed. This condition is clearly outside the Board's authority and unlawful. 3. Some conditions are unreasonable, and onerous. For example, Condition No. 5 requires that "underground utilities shall be rerouted to assure adequate protection of trees on site." No engineering, cost or feasibility analysis was considered or included to support this condition. 4. Condition 6 provides that "[t]here shall be no walls along the property boundary along Gifford Lane." Neither the trees proposed for removal nor the 5 additional trees required by the Intended Decision for mitigation are affected by any perimeter walls. This condition unreasonably restricts the lawful use and development of the Owner's property that is otherwise in full compliance with the Miami Zoning and Building Codes. 5. Condition 9 provides that "[b]uilding should be redesigned so that the rear patio is built above grade or on pavers on sand. With the approval of that redesign of the patio subject to the approval by staff and the reasonable approval of the certified Arborist." - This condition is too general and may not comply with engineering and Building Code requirements. This condition is unrelated to the removal of the two trees subject of the Intended Decision. It is also unreasonable and lacks any engineering or technical justification. Review and approval "by staff" is general, arbitrary and lacks any criteria for the standard for review. 6. Many of these conditions were crafted at the direction of Ms. Lisa Hammer, a Horticultural Consultant who testified before the HEPB in support of Mr. Kurland's appeal of the Intended Decision. Ms. Hammer was not a registered lobbyist for this matter as required by Section 2-653 of the Code of the City of Miami. A per the City Code, the validity of the HEBP's decision is not affected by Ms. Hammer's failure to register as a lobbyist, but it does place the Owner at a great disadvantage. In addition to her testimony, Ms. Hammer also Ms. Olga Zamora Office of Hearing Boards March 22, 2017 Page 3 prepared a report that was submitted to the HEPB and dated February 27, 2017, eight days before the HEPB hearing. That report expressly stated that she conducted an on -site inspection on February 23, 2017, twelve (12) days before the HEPB meeting. This report was not submitted to the City or to the Owner. A second report from another certified arborist, Mr. Jeff Shimonsky, was also submitted to the HEPB during the hearing in support of Mr. Kurland's position. Neither of these reports were submitted to the City or to the Owners prior to the HEPB hearing. When outside professionals can simply "show up", submit reports and testify without giving the opposing party the opportunity to review the reports, the proceedings are unbalanced and unfair. When one of these consultants lobbies the Board in order to broaden the scope and detail of conditions, without input from the Owner's own arborist, the injustice is severe. Based on the foregoing, and in accordance with Section 17-8 (b) of the City Code, Daydreaming hereby appeals the decision of the City's Historic and Environmental Preservation Board, Resolution HEPB-R-17-017, including the Conditions set forth in Exhibit "A" to City Commission. We respectfully request that the record of this appeal to the City Commission include the Staff Recommendation and report submitted to the HEPB and the Intended Decision. Enclosed is a check in the amount of $ 500.00 for the appeal fee and a separate check for the fees associated with mailed notices required by the City Code, proof of Lobbyist Registration, and Affidavit/Disclosure of Consideration and well as copies of the Intended Decision and the draft Resolution HEPB-R-17-017 that we were provided to file this appeal in a timely manner. Should you have any questions regarding the foregoing, please do not hesitate to contact me at (305) 789-7776 or email me at ines.marrero@hklaw.com. Respectfully submitted by, HOLLAND & KNIGHT LL Ines Marrero 'riegues Enclosures Mr. Francisco Garcia, Planning Director Ms. Megan Schmitt, Preservation Officer Ms. Quatisha Oguntoyinbo-Rashad, Chief, Environmental Resources "7'hiy decision is fink winless an ammo, is filed with Hearing Board Evithin t5 days of the final decision," Miami Historic and Environmental Preservation Board Resolution: HEPB-R-17-017 File ID 1792 March 7, 2017 Item HEPB,S Ms. Lyn.17 B. Lewis offered the following resolution and moved its adoption: A RESOLUTION OF THE MIAMI HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD DENYING, STATING CONDITIONS ATTACHED HEREIN, THE APPEAL FILED BY NATHAN KURLAND, OF INTENDED DECISION BD16-009931-001 ISSUED ON JANUARY 19, 2017, FOR THE PROPERTY LOCATED AT APPROXIMATELY 3140 DAY AVE, MIAMI, FLORIDA. Upon being seconded by Mr. Jordan Trachtenberg the motion passed and was adopted by a vote of 6-0: Mr. David Freedman Yes Mr. Jonathan Gonzalez Yes Dr. William E. Hopper, Jr. Yes Ms. Lynn B. Lewis Yes Mr. Hugh Ryan Absent Mr, Jordan Trachtenberg Yes Mr. Todd Tragash Yes Megan Schmitt Preservation Officer 2 2 ftr%t rGl,. Z of Execution Date STATE OF FLORIDA COUNTY OF MIAMI-DARE ) Personally appeared before me. the undersigned authority, Medan Schmitt. Preservation Officer of the City of Miami, Florida, and acknowledges that she executed the foregoing Resolution SWORN AND SUBSCRIBED BEFORE ME THIS Z2. DAY OF r� 2017, StW'tC.1 SorsZave4 Print Notary Name Personally know or Produced I.D. Type and number of I.D. roduced Did take an oath or Did not take an oath State of Florida My Commission Expires: A'Ss SfLVIAGONZALEZ Ally cOMMISSioN # GG 051581 . '+i EXPIRES: November 30, 2020 f Bondid TM/ Notary Ptrbik ilnderwrtlere Miami Historic and Environmental Preservation Board Resolution: HEPB-R-17-017 EXHIBIT "A" 1. Comprehensive Canopy and root pruning specifications, for Live Oaks 1, 9 and 10 shall be provided to the City subject to approval of the owners certified arborist. Specifications shall be in accordance with ANSI A300 standards. 2. A certified Arborist shall be on site during root pruning, canopy pruning, installation of fences, mandatory irrigation and shall report monthly to the Historic and Environmental Preservation department. 3. Construction details of the proposed pavers and sidewalk must be depicted in the plans and reflected on the appropriate sheets such as paving. This shall include no excavation adjacent to tree number one and pavers shall be installed on sand and a root deflector shall be installed. 4. A tree protection bond equal to the value of the specimen trees to remain and/or to be relocated shall be posted. 5. Underground utilities shall be rerouted to assure adequate protection of trees on site and the plans shall so reflect. 6. There shall be no walls along the property boundary along Gifford Lane. 7. There shall be recorded a covenant prohibiting the installation of a swimming pool without approval from the Historic and Environmental preservation Board. The form of the covenant shall be satisfactory to the City Attorney. 8. A fifteen foot radius around tree number 9 with a chain -link fence shall be installed. 9. Building shall be redesigned so that the rear patio is built above grade or on pavers on sand. With the approval of that redesign of the patio subject to the approval by staff and the reasonable approval of the certified Arborist. The goal of the redesign is to protect the roots of specimen tree number 10. 10. The canopy of the specimen trees shall be trimmed seriatim so that it is not done all at one time. 11.All plans are subject to approval by Zoning, Building, and all other required city departments.