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HomeMy WebLinkAboutLegislation SUB Memo from City ManagerCITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: The Honorable Mayor and DATE: November 8, 2017 Members of the City Commission FROM: Daniel J. Alfonso City Manager SUBJECT: November 16, 2017 City Commission Meeting Agenda — PZ.3 (File 2508) REFERENCES: ENCLOSURES: Pages 240-301 The City Commission meeting agenda published online and hard copies were distributed to you yesterday, Tuesday, November 7, 20 i 7. The agenda item published online in its completeness yet the printed copies were missing pages 240-301. Attached are copies of page numbers 240-301, which belong at the end of item PZ.3. With these physical copies. your printed materials for PZ.3 mirror the electronic materials published online. Also, attached is a copy of the updated resolution to the item that will substitute the resolution that published online and printed in your packets. The resolution has been updated so the property address shown in the resolution is identical to the property address shown on the property postings, and the address shown in the certified mail notices mailed to the abutting property owners. C: Victoria Mendez, City Attorney Nzeribe Ihekwaba, Chief of Operations and Assistantity,lanager Francisco J. Garcia, Planning Department Director Anna Medina, Agenda Coordinator Plan 18-003 2E-og— LogisiAlio./) sub rni2fro -r-foti 044 144":ser PZ.3 CITY COMMISSION FACT SHEET File ID: (ID # 2508) Title: A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING/DENYING THE APPEAL OF WARRANT NO. 2017-0004 ISSUED PURSUANT TO ARTICLE 4, TABLE 3 OF ORDINANCE NO. 13114, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("MIAMI 21 CODE"), TO ALLOW A FOOD SERVICE ESTABLISHMENT LOCATED WITHIN A D3 ("WATERFRONT INDUSTRIAL") TRANSECT ZONE AND PURSUANT TO ARTICLE 6, SECTION 6.3.2 OF THE MIAMI 21 CODE TO ALLOW AN OUTDOOR DINING AREA INCLUDING A WAIVER PURSUANT TO ARTICLE 7, SECTION 7.2.8(B) OF THE MIAMI 21 CODE TO ALLOW THE ADAPTIVE USE TO A RESTAURANT USE IN A D3 ("WATERFRONT INDUSTRIAL") TRANSECT ZONE FOR THE PROPERTY LOCATED AT 125, 127 A/K/A 129, AND 131 NORTHWEST SOUTH RIVER DRIVE, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AN❑ PROVIDING FOR AN EFFECTIVE DATE. LOCATION: 125,127 a/k/a 129, and 131 NW South River Drive [Commissioner Frank Carollo - District 31 APPELLANT(S): W. Tucker Gibbs, Esquire, on behalf of Biscayne Towing & Salvage, Inc., abutting property owner APPLICANT(S): River Art Building LLC PURPOSE: Appealing a PZAB decision FINDING(S): PLANNING DEPARTMENT: Recommended denial of the appeal PLANNING, ZONING AND APPEALS BOARD: ❑enied the appeal on May 17, 2017, by a vote of 9-2. City of Miami Legislation Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 2508 Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING/DENYING THE APPEAL OF WARRANT NO. 2017-0004 ISSUED PURSUANT TO ARTICLE 4, TABLE 3 OF ORDINANCE NO. 13114, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("MIAMI 21 CODE"), TO ALLOW A FOOD SERVICE ESTABLISHMENT LOCATED WITHIN A D3 ("WATERFRONT INDUSTRIAL") TRANSECT ZONE AND PURSUANT TO ARTICLE 6, SECTION 6.3.2 OF THE MIAMI 21 CODE TO ALLOW AN OUTDOOR DINING AREA INCLUDING A WAIVER PURSUANT TO ARTICLE 7, SECTION 7.2.8(B) OF THE MIAMI 21 CODE TO ALLOW THE ADAPTIVE USE TO A RESTAURANT USE IN A D3 (WATERFRONT INDUSTRIAL") TRANSECT ZONE FOR THE PROPERTY LOCATED AT 125, 127 A/KJA 129, AND 131 NORTHWEST SOUTH RIVER DRIVE, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on April 7, 2017, the Department of Planning approved Warrant No. 2017- 0004 pursuant to Article 4, Table 3 of Ordinance No. 13114, the Zoning Ordinance of the City of Miami, Florida, as amended ("Miami 21 Code"), to allow a Food Service Establishment Use, pursuant to Article 6, Section 6.3.2 of the Miami 21 Code, to allow an Outdoor Dining Area in a Food Service Establishment, and further issued a Waiver pursuant to Article 7, Section 7.2.8(b) of the Miami 21 Code, to allow an adaptive use of a building located in a D3 ("Waterfront Industrial") Transect Zone for the properties at 125, 127 a/kla 129, and 131 Northwest South River Drive, Miami, Florida, with conditions; and WHEREAS, on April 19, 2017, W. Tucker Gibbs, Esquire, on behalf of Biscayne Towing & Salvage, Inc. ("Appellant"), filed an appeal with the Office of Hearing Boards of Warrant No. 2017-0004; and WHEREAS, on May 17, 2017, the Miami Planning, Zoning and Appeals Board ("PZAB") considered the testimony and the evidence presented, after due notice and an opportunity to be heard was afforded to all members of the public, and adopted Resolution No. PZAB-R-17-033, by a vote of nine to two (9-2), and found there was substantial evidence in the record to deny the appeal of Warrant No. 2017-0004; and WHEREAS, on May 30, 2017, the Appellant filed an appeal of the PZAB's decision to the City Commission with the Office of Hearing Boards; and WHEREAS, the Appellant claims that the proposed Food Service Establishment Use fails to meet the requirements set forth in the provisions of the Port of Miami River Element of the City of Miami Comprehensive Neighborhood Plan ("MCNP"); and WHEREAS, the Appellant claims that the proposed Food Service Establishment Use is not an accessory use to the proposed yacht club and lounge with yacht sales and rentals; and WHEREAS, the proposed use does/does not fulfill the intent of the Miami River Corridor Urban Infill Plan for the East Little Havana neighborhood; and opportunity to be heard has been afforded to all parties and members of the public, there is substantial evidence in the record to grant/deny the appeal of Warrant No. 2017-0004; NOW, THEREFORE, BE IT RESOLVED BY THE MIAMI CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The appeal of Warrant No. 2017-OOO4 is granted/denied. Section 3. This Resolution shall be effective immediately upon its adoption.' APPROVED AS TO FORM AND CORRECTNESS: dez, ty ttor ey } 7114.2017 dez, ity ttor ey 11;8:201.7 ' If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. PAGES 240-301 4 • z -f City or Miami Nanning and Zoning 444 SW and Avenue. Miami. Florida 331 ttp www.rma,nigc 'See Rev9r Department, Hearing Boards SE 3rd Poor a:or~ *rear!tr_baards, 1,,5!3% - S,;\* I WI\ - •ka[nil::++ CERT1F ED MAW i i {I IFI 7016 2140 0000 7658 6751 HEARING NOTICE-_.__ =B i ,3 a, 2 i 6 COGi esotivNC RETURN SERVICE RE3LESTED • Iris] 2sca: ra E q 333 SE 2`:'-A4e 'FL 33131 tll1ll=illy "I'llif��ij� !lli tlrl;al lrfl lla�lltl���ll�,lilll, ,.�. ZiMOVAMOMMV .• •Al!- 153$ 003.1 3334 =3 .t{.. c3 7016 2140 0000 (.58 6751 minirmiritoomusimipm wow maw ,'"101-110EIMINSIO male Nome taw ti GonL!n or of State of Florida Mr. Rick Scott Designee: Ms Patricia Harris Chair of Miami -Dark. Dek .atinn Representative Jose Feiix Diaz Designee: Rep. David Richardson Chair of Gmerning Board of South Ronda Water Management District Mr. Daniel O'Keefe Designee' Ms Sandy Batchelor Miami -Dade State Attorney Ms Katherine Fernandez -Rundle Designoz: Mr. Gary Winston Mayor of Miami -Dade Coortrt Manor Carlos Gimencz Designee-. Mr. Frank i3rnizebre Mayor of Miami MATT Tomas R iLido City of Miami Cortunirr.iimer Commissioner Freak Carols Miami -Bede County Commissioner Commissioner Brtnn Barreiro Designee.: Ms. MarlertcAvik Chair of Nliami River Marine G Mr. Braes Brown Designee: Mr. R i hanJ Dubin Chair of Marine Council Mr. Ed Swakon D signee: Mr. Phil Benn ham Executive Director of Doi roan Development :Unlade(( M.s. Alyce Robertson l imIce: ! . Eric Rit1 Chair of Greater Miami Chamber of Commerce Mr.. Barry Johnson Dcsi.1 ee: Ms Saner*: O'N,:i 4eighorhood Representative Appointed by City of Miami Cuui iiitinuan Dr. Ernest 4t:irtin Nrigtoi, r„,. d ricrnc7c.twt1,c Appointed by Miami -Dade Cornateeiro f�ti. SiUye Jude Re presentative, from Envitmuttestut or Civic Org:rnirafion .Appointed by the Go►ernor M:. Horackc Stuart Aguirre Member at Large .I Mrinreil by the Coremor Mr. Jay Carmichael Member at Large Appointed by Miami -Dade Contritibion Ms. Sara Babun Designee: Mr. Duber La2ardu Member at Lsirge Apprninred fr City of Mistrial Commit Mr. Manny Priegue-z Managing Director Mr. Brett Bibeau Miami River Commission rt City of Miami Commission 3500 Pan American Drive Miami, FL 33133 cIo Robtxt King High 1407 NW 7" Street, Suite D Miami, Florida 33125 Office (305) 6 4- 5 4 ernaii; iniartairi►rra be'i south.net www.miamirivertornmiision.org October 26, 2017 i:;.0;he wr _ `l. �1 i S • Re: N1RC Advisory Recommendations Re P7 13, RE.7 and DI .4 Dear City Commissioners: PZ-13 (Appeal of Warrant) - During a public meeting held on January 23, 2017, the Miami River Commission (1'[RC) considered this Warrant application, which was subsequently approved by the City of Miami, The MRC's subject adopted public meeting minutes state in part: "Ms Sandy O'Neil made a motion for the MRC to adopt the MRC Urban Infill Subcommittee Chairman Jirn Murley and MRC Grt enw'ays Subcommittee Chairman Ernie Martin's suggestion for the MRC to recommend approval of the updated subject warrant proposal with the following conditions: I) site demonstrates continued marine use 2) site demonstrates public Riverwalk per approved plans and letter of intent 3) conduct seawall inspection and improvements if needed The motion failed by a vote of 5-5. MRC Chairman Aguirre asked if anyone wanted to make another motion for consideration, and rio other motions were made." Therefore, the MRC did not recommend this project as• proposed. RE.7 (Accepting ST Funding for Stormwater Master Plan) — While this specific agenda item "accepting S1,125,000 from FDEP for design and creation of the City of Miami's Stormwater Master Plan" hasn't been considered by the MRC, it further advances implementation of the MRC's adopted Miami River Basin Water Quality Improvement Plan and the Miami River Corridor Urban 1'nfxl Plan. I 1: � �9 ?1._ON. (144,, , City of Zoning Application 4\-1 3 Page 1 of 1 C,:ck ?c Pr•r: Tnis �3 Miami 21 Zoning(Currer.tti: Zone:Y4 Description- Enactment r73 4'eat? i :i1I industrial Cistnct , 3 ` t4 Zcre Areas of Specific Designation' Section: Description- Enactrn?pit: None Special Area Planning: Section: Description: Enactment: Nore Established Setbacks: Section: - Descripton: Area; Sub: Nor a _ — _ Former 11000(Not Valid- Zone: Description: Enactment: 50-a Code: Description „OSSe'1 V4,4 39 5 :CC f::a }+? S23' 22 FLU ti:Ir, ,•.r,4 inTo the public._,.. r::c 2 d�d• ern(rr l 7 9: 4� ( C•i:! Clerk Property Information:1 Folic. _ ,,B' �239C5011 J0 City Address. 129 NW SCUTH RIVER DR 1;cunty Address 129 NW 5 RIVER DR LC JWrer LSair ng Address 92 SW 3 ST CU 6 MIAMI.FL 33'30 eds/Baths/Half Cr0/0 crs 2 Living Units- 0 Actual Area- 2.256 Sq Ft vrrg Area 2 256 Sq Ft diusted Area. 2 242 S.; Ft of Size ---- 7 700 �--------- rear Built - - MEAN SeLr'4 DS 3-4T A' 1E PCJLL CE9C PRCIP 3E A T x :; F W'I or to-1 3 305 5 R3 9-5' .egei Cesrd'Cticr. 4„M_ CF S RIVER oR TF- "ScLY 5e 3CFT E "0 THE M.)1N5 star. CITY OF MAAU SOUTH Assessment Information: 20'7 22016 ii:.a.... $57C o: &255O 52`riDXC, r'atua_ .379 'CC 5 S 56u Existing Land Use . �i Jai�.g 3 5 3Ci. ;3' 3 . • S 79 C•� 3- - ' Description: t-erlydust::al —j Sales information: Intensive non -noxious INDUSTRIAL.--- — L!¢9r Future Land Use /Sam /5.o:,='." t 5 Code: Description: Description:} Homestead Information: - 3 rcustrral DiStr_ ct Infcxrrtation: C.ty Corrtmissioner Cl +str�c;: City Ccmrrissicnter NET ID: - —� ytiET Name Former Overlay Districts: Section: Description: Enactment: Nore NET Pncne Code Er.rer en ert F/strict. - - C^de Enforomert Admin industral ear 20'. 7 2016 20t5 — S3 SO 'SC 3 Frark Car7110 Seccrd Hcrtestead a•; 50 SC Alternate A ' sses: Hw SOUTH R,vF.R Da Historic & Envira mental LITTLE HAVANA Pi' e-iv ion: ii 305., 360-1650 r 3 Sceric Transp No Type: nag Present: FRAINCISCO Historic Sites. MARCOS Ar n Zores • Code Er forcmert Ph ,ne t305i 329-4'70 Env Presen,- Histor'c Cistrct No 1vo No No Flood Zone: Flood Ac' Zore Elevation 9 (Arch Consery YES Description . SPECIAL FLCOC HAZARD AREAS `c.i7i(t \\ Kco;„\•,7-,(3,4, i N 511 https:ilmaps.miarnigov,cumlmiamizoning,'prirltp ge.htm`.'id=O 1021000 1130&map=Lags... 10/26/2017 copy of the correspondence as provided by Hearing Boards is attached and referred to as Exhibit E. At the July 27, 2017, City Commission meeting, Tucker Gibbs and Iris Escarra appeared on the continuance of the appeal. with Tucker Gibbs requesting September 28, 2017, and. Eris Escarra requesting September 14, 2017. At the July 27, 2017, City Commission meeting Iris Escarra stated on the record that the item should be continued to the September 14, 2017, meeting and that this is "an economic hardship for [Tasal River Arts] to have been carrying this property through this appeal process, and it's already been six (6) months." However, the City Commission continued the hearing on the appeal to the September 28, 2017, City Commission meeting. The relevant minutes from the July 27, 2017, City Commission meeting are attached as Exhibit F. At the September 28, 2017, City Commission meeting, the item was again continued, at the request of District 3 Commissioner Carollo, to the October 12, 2017, City Commission meeting. The October 12, 2017, Cite Commission meeting was adjourned prior to the hearing of any items on the Planning and Zoning Agenda due to lack of quorum. The appeal has now been scheduled for the October 26, 2017, City Commission meeting. It has been more than six (6) months since the Warrant was issued, with no resolution to the appeal. APPELLANT'S OBJECTION TO OCTOBER 26, 2017, HEARING In an email to Olga Zamora dated October 18, 2017, Tucker Gibbs objected to the scheduling of the appeal on the October 26, 2017, City Commission agenda, alleging that the City Clerk and City Attorney confirmed that the appeal would be set for November 16, 2017, at the conclusion of the October 12, 2017, City Commission meeting. Tucker Gibbs claims that his client is not available for the October 26. 2017, City Commission meeting. Tucker Gibbs email confirms he received City's notice of hearing for the October 26, 2017, hearing date. A copy of Tucker Gibbs' email is attached as Exhibit G. CITY CODE AND MIAMI 21 SECTIONS REGARDING WARRANT APPEALS Section 7.1.1.5(i) of Miami 21, attached as Exhibit H. specifically states that appeals from the Planning and Zoning Appeals Board to the City Commission in connection with a Warrant application `shall be specially set for the first available City Commission hearing that is at least fifteen (15) days after the Planning, Zoning, and Appeals Board hearing." (emphasis added). This provision is intended to protect an appellee's rights by ensuring the speedy resolution and adjudication of pending appeals. Five (5) months have passed since the appeal was originally denied by the Planning, Zoning and Appeals Board. By not setting the appeal to the October 26th meeting, in contravention of Section 7.1.1.5(i) of Miami 21, the City will continue to unduly prejudice the appellee who has been ready to present his defense since May. Greenberg Traung. P.A. ! Attorneys at Law 333 Arenas of the Americas i Sur:e 4400 t Miami. EL 3313]-323E3 r Tel 305.579.0500 j Fax 305579 0717 .v.v y1aw.com 113:~4L-31 Accordingly, Tucker Gibbs' objection to the scheduling of the appeal before the October 26, 2017, City Commission is without merit and should be denied. We appreciate your time and consideration of this matter at the October 26, 2017, City Commission meeting. Respectfully Submitted, Iris Escarra cc: Rafael Suarez Rivas, Senior Assistant City Attorney, City Attorneys Office W. Tucker Gibbs (via IHand Delivery at Hearing) City Commissioners (via Hand Delivery) 4 Greenberg Traung_ P.A.' Arrc rneys ar Law 1333 Avenue of the Americas I Suite 4400 I Miami. FL 33131.3238 I %1 C5 5790500 Fax 305.57 9.071 r :•.,t.;r`,,x u�>> } pu li1 1.•, TFINAL DECISION • 4ris Greenberg Traurig„ PA`• 'r333 S,E; 2+d Avenue, MUliarni, FL Miami FL; 33131, Flora Francisca J.: Garcia, Director -::• Planning &-Zoning Department PLEASE TAKE NOTICE THATA tNAL DgcISION HAS SEEN REACHED ON THE FOLLOWING MATTER; .. Title: .Food Service Establishment & Outdoor Dining (River Arts Building) `-Address: 725,127 and 131 NW S. River Dr., Little Havana NET Final Decirilon: O Approval O Approval with condition D Denial • -4-_. i9.r C'i.rl{ File No.17-00C4 Prepared by: Luiz Vicentini, Planner 1305-41a"-1408 Amanda Smith, Planner { 305-41E-1433 FINDINGS A:0 CONDITIONS The subject proposal has been reviewed for the following: 1- A Wan -ant pursuant to Article 4 Table 3 of the Miami 21 Cade, as adopted, the Zoning Ordinance of the City of Miami, Florida. This Section states that Food Service Establishments located within a D3 Transact Zone shall be processed by Warrant. 2- A Warrant pursuant to Article 6, Section 6.3.2, of the Miami 21 Code, as adopted, the Zoning Ordinance of the City of Miami, Florida. This Section states explicitly that a Warrant shall be required for outdoor dining areas and the display and sale of items from vending carts. 3- A Waiver, pursuant to Article 7, Section 7.2.8(b), of the Miami 21 Code, as adopted, the Zoning Ordinance of the City of Miami, Florida, to allow the Adaptive Reuse to a restaurant use in a D3 Transect Zone. Pursuant to Section 7.1.3.4 of the above -cited Zoning Ordinance, the Planning & Zoning Department has made referrals to the following Departments and Boards • Office of Zoning, Planning & Zoning Department • Miami River Commission • Miami River Commission Urban lnfill & Greenways 'Subcommittee • NET— Little Havana Their comments and recommendations have been duly considered and are reflected in this final decision. In reviewing this application, pursuant to Section 7.1.2.4 (d) of the Zoning Ordinance, the following findings have been made: 44, b File No. 17-0004 ■ The previous Certificates of Use (CU) for properties included in the application were for general commercial with CU property classes for machinery manufacture, boat/pleasure craft sales, canning/preserving of fish/seefood, and general business office as well as CUs for Industrial - manufacturing & processtng with a CU property class of printing/pub6shing allied induslrlal. The property is not currently being utilized for any use, water -dependent or cnhervrise. The application proposes uses that are similar in nature be the previous uses on site while also adding an accessory water dependent use which will further the economic viability of the Property and the surrounding area. Based on the above findings and the considered advice of the officers and agencies consulted on this mattes, staff recommends approval ►vlth conditions of the subject proposal pursuant to Section 7.1.1.2 of the Zoning Ordinance and based on review of a Warrant pursuant to Article 4 Table 3, a Warrant pursuant to Article B, Section 6.3.2, arld a Waiver, pursuant to Article 7, Section 7.2.8(b) with the following limitations: CONDITIONS: 1. The proposed outdoor dining shall be in accordance with the plans entited 'River Arts Complex - Warrant Submittal' as prepared by Berenblum Busch Architecture, Inc. consisting of 15 pages dated September 2, 2016. 2. Offsite parking shall be provided to accommodate proposed valet service. Validation of sufficient offsite parking shall be provided and approved by The Planning and Zoning Director or his/her designee prior to the issuance of a building permit for this site. 3. To assure that a war dependent use is ach.ieved, lea Class I and Marine,Operating PAW, shall be approved prior to the l&suance ofa building milt for this site. 4. Applicant shall mairealn compliance with' the LeeearRiver design development regulators of both the Miami River Greenway Action Plan and the Miami River Grreenway Regulatory Design Standards throughout all phases of the project, to be confirmed by the Planning and Zoning Director or his/her designee prior to the Issuance of a building permit for this site. 5. The proposed application is located within a high probability Archaeological Conservation Area, if deemed necessary by the Historic Preservation Officer, any work creating ground disturbance shall require a Certificate to Dig. 6. Brick pavers over critical root zone of trees are not permitted. Provide a Tree Protection plan prepared by a State of Florida Licensed Arbonst to show how Installation may be executed without damage to the root system of existing trees. 7. Provide a Landscape Plan prepared by a State of Floiida Licensed Landscape Architect in accordance with Article 9 of the Miami 21 Code. 8. The applicant shall comply with the pubiic art requirements, pursuant to Section 2-11.15 entitled 'Art in Public Places' of the Miami Dade County (MDC) Code of Ordinances and the (MDC) Art in Public Places (APP) procedures numbered: 358. 9. Sgnage shall be reviewed under a separate permit application and is not a part of this Warrant submittal or approval. I t 40+ 0. DECISION File tio. 17-0004 P ' ' iCLE 4, TABLE 11 > ,• on iar' is subject to conditions. f appllc le t this tme, subject to review and approval. *#^ INCORP=CRATED oEgtGri REVIEW RSTEi til ULD IING DIS ,OSITION N Applicability Compliance ext taking into NIA tY , existing urban e tions. rPon + • •. a ysicar skd on Ittur I d-Transe.ct;.Z (2) For Bui * ! s er Lots, design Facades to N/A acknowledge all Frontages. (3) For modifications of nonconforming Structures. N/A See Article 7, Section 7.2 for specific regulations (4) Create transitions in Height and mass with N/A Abutting properties and Transect Zones. II) BUILDING CONFIGURATION. Applicability Compliance (1) Articulate the Building Facade vertically and NIA horizontally in intervals appropriate to the existing Neighborhood and Transect Zone. (2) Articulate the Building Facade at street level to N/A recognize pedestrian continuity and interest, and at upper levels to recognize long views of Buildings (3) Use architectural styles and details (such as roof N/A lines and fenestration), colors and materials derivative from surrounding area. (4) Design Facades that respond primarily to human N/A scale. (5) Promote pedestrian interaction. N/A (6) Design all walls as active Facades, with doors N/A and windows; when not possible, embellish walls with architectural design treatment. (7) Provide usable Open Space that allows for visible Yes Yes and convenient pedestrian access from the public sidewalk. (8) Building sites should Locate service elements, N/A such as trash durnpsters, utility meters, loading docks, backflow preventers, siamese connections and electrical, plumbing, mechanical and File No, 17-C104 Neighborhood. (2) Provide functional and aesthetic signage NIA" identifying Building addresses at the entrance(s). V11) AMBIENT STANDARDS: Aoolicabi?it+7 Compfance (1) Provide lighting appropriate to the Building and NIA landscape design in a manner that coordinates with signage and street lighting. (2) Orient outdoor lighting to minimize glare to the N/A public realm and adjacent properties. (3) Protect residential areas from excessive noise, Yes Yes* fumes, odors, commercial vehicle intrusion, traffic conflicts and the spillover effect of light. 7 W. TUCKER GIBBS, P.A. ATTORNEY AT LAW P.O. BOX 1050 COCONUT GROVE FL 33133 TELEPHONE (305) 4-8-8486 FACSIMILE (305) 448,:0173 tucjamawlg bs.corat April 19, 2017 Olga Zamora Hearing Boards Office City of Miami 444 S.W. Second Avenue, 3rd Floor Miami, Florida 33130 VIA HAND DELIVERY Rs: Appeal of Warrant No. 2017-0004 to allow a food service establishment and outdoor dining within the D3 Transact. Zone, and an associated waiver at 125, 127 and 131 N.W. South River Drive. Dear Ms. Zamora: I represent Biscayne Towing & Salvage, Inc. ("Biscayne Towing") which owns and operates 24-hour towing and salvage facilities at 151 N.J. South River Drive adjacent to the referenced property ("subject property"). My client objects to and hereby appeals Warrant No. 2017-- 0004 issued on April 7, 2017. (Exhibit "A"). That warrant would allow (1) a food service establishment within the D3 Transect Zone, (2) outdoor dining areas and display and sale of items from vending carts and (3) a waiver "to allow the adaptive reuse to a restaurant" at 125, 127 and 131 N.W. South River Drive. This proposed food service establishment is contrary to the following provisions of the Port of the Miami River Element of the City of Miami Comprehensive Plan: 1. Objective PA 3.1 which requires that the Port of the Miami River be protected from encroachment by non - water dependent and non -water related uses. The proposed food service establishment is not water dependent nor is it water related. 2. Policy PA 3.1.4 which requires the city to encourage and maintain working waterfront uses within the Port of the Miami River Working Waterfront. The proposed Page 1 of 3 L L The requested waiver to allow an adaptive reuse of a structure for a restaurant use is not only inconsistent with the comprehensive plan as set out above, but it is also inconsistent with the guiding principles of the Miami. 21 Code. Furthermore, the waiver presents no facts that show practical difficulties caused by the Miami 21 regulations that would be resolved by the approval of the requested waiver. Therefore, the waiver serves merely to circumvent specific provisions of the Miami 21 Zoning Code. Furthermore, the approval of the waiver is contrary to the essential requirements of the law because the apparent standards that are applied in the evaluation of the waiver are vague and undefined and allow virtually unfettered discretion by the decision -maker in its approval. For all the forgoing reasons the Biscayne Towing & Salvage, Inc., through this letter, appeals the issuance of Warrant No. 2017-0004, to permit food service establishment with outdoor seating and a related waiver for the property at 125, 127 and 131 N.W. South River Drive, Miami, Florida. Please note that appellant Biscayne Towing & Salvage, Inc. reserves its right to supplement this letter with briefs and/or memoranda prior to the planning zoning and appeals board consideration of this appeal. •Sincerely, 04-1 W. Tucker 'uibbs cc: Biscayne Towing & salvage, Inc. Page 3 of 3 City of Miami PZAB Resolution Enactment Number: PZAB-R•17.033 City hall 3500 Pan American Drive r1[arri, FL 33133 rmw.rniamgov.com Fide 1D: 2218 Final Action Date: 5,1712017 A RESOLUTION OF THE MIAMI PLANNING, ZONING, AND APPEALS BOARD DENYING THE APPEAL OF WARRANT NO. 2017-0004 ISSUED PURSUANT TO ARTICLE 4, TABLE 3 OF ORDINANCE NO. 13114, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA ("MIAMI 21"), TO ALLOW A FOOD SERVICE ESTABLISHMENT LOCATED WITHIN A 03 ("WATERFRONT INDUSTRIAL") TRANSECT ZONE; PURSUANT TO ARTICLE 6, SECTION 6.3.2 OF MIAMI 21, TO ALLOW AN OUTDOOR DINING AREA AND THE DISPLAY AND SALE OF ITEMS FROM VENDING CARTS; AND A WAIVER PURSUANT TO ARTICLE 7, SECTION 7.2.8(B) OF MIAMI 21, TO ALLOW THE ADAPTIVE USE TO A RESTAURANT USE IN A 03 ("WATERFRONT INDUSTRIAL") TRANSECT ZONE FOR THE PROPERTY LOCATED AT 125, 127, AND 131 NORTHWEST SOUTH RIVER DRIVE, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on April 7, 2017, the Department of Planning and Zoning approved Warrant No. 2017•C004 pursuant to Article 4, Table 3 of Ordinance No. 13114, as amended, the Zoning Ordinance of the Cty of Miami, Florida ("Miami 21 Code"), to allow a Food Service Establishment Use; pursuant to Article 6, Section 6.3.2 of Miami 21, to allow an Outdoor Dining Area in a Food Service Establishment; and a Waiver pursuant to Article 7, Section 7.2.8(b) of Miami 21, to allow ar adaptive use cf a building located in a D3 (`Waterfront Industrial") Transect Zone for the properties at 125, 127, and 131 Northwest South River Drive with conditions; and WHEREAS, on April 19, 2017, W. Tucker Gibbs, Esquire, on behalf of Biscayne Towing & Salvage, Inc. ("Appellant") filed an appeal with theOffice of Hearirg Boards of Warrant No. 2017-0004: and WHEREAS, the Appellant claimed that the proposed Food Service Establishment Use failed to meet the requirements set forth in the provisions of the Port of Miami River Element of the City of Miami Comprehensive Plan ("M1CNP"); and WHEREAS, the Appellant claimed that the proposed Food Service Establishment Use is not an accessory use to the proposed yacht club and lounge with yacht sales and rentals; and IVH REAS, the proposal does fulfi,1 the intent of the Miami River Corridor Urban Inflll Plan for the East Little Havana neighborhood; and WHEREAS, approval of Warrant No. 2017-0004 does serve to meet the intent of the IVICNP's Port of Miami River Sub -Element that emphasizes the economic development of the Miami River through job creation and employment opportunities; and Page 1 of 3 File 2216 NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING, ZONING AND APPEALS BOARD OF THE CITY OF MIAMI, FLORIDA: Section 1, The recitals and findings contained in the Preamble to this Resolution adopted by reference and incorporated as if fully set forth in this Section. Section 2. The appeal of Warrant No. 2017-0004, with conditions, is denied. Section 3. Ths Resolution shall be effective immediately upon its adoption. APPROVED AS 7O LEGAL FORM AND CORRECTNESS THIS DECISION IS FINAL UNLESS APPEALED WITHIN 15 DAYS WITH THE OFFICE OF HEARING BOARDS. Francisco Garcia, Director Execution Date Planning and Zoning Department STATE OF FLORIDA ) COUNTY OF MIAMI-DADE j Personally appeared before me, the undersigned authority. d, < +, , Clerk of the Office of Hearing Boards of the City of Miami, Florida, and acknowledges that he/she executed the foregoing Resolution. SWORN AND SUBSCRIBED BEFORE ME ___THIS i DAY OF j ,2017. are ,61 Print Notary Name Notary Pudic State of Florida Personally known or Produced I.D. My Commission Expires: Type and number of I.D,produced Did take an oath or Did not take an oath 3 OF 3 File 2216 m ` ti'. Sit_'irA GON Z rN•MYCOMMISSION G85l58d ExPrRE3: Novxm5er,30, 202o W. TUCKER GIBBS, P.A. ATTORNEY AT LAW P.O. BOX 1050 COCONUT GROVE Et 33133 TELEPHONE (305) 448-8486 FACSIMILE t305) 448-0773 lulcsagyotgibbs.com May 30, 2017 Olga Zamora Heating Boards Office City of Miami 444 S.W. Second Avenue, 3=d Floor Miami, Florida 33130 VIA HAND DELIVERY Re: Appeal of PZAB Resolution 17-033 Denying Appeal. of Warrant No. 2017-0004 for Property at 125, 127 and 131 N.W. South River Drive. Dear Ms. Zamora: I represent Biscayne Towing & Salvage, Inc, ("Biscayne Towing") which owns and operates 24-hour towing and salvage facilities at 151 N.W. South River Drive adjacent to the referenced property ("subject prbperty") . My client filed its. appeal of Warrant No. 2017-033 on April 19, 2017. The Planning Zoning and Appeals Board ("PZAB") heard the matter and denied the appeal on May 17, 2017. Biscayne Towing hereby appeals Planning Zoning and Appeals Board Resolution 17-033 (Exhibit "A") that denied my client's appeal of Warrant No. 2017-0004. (Exhibit "B"). That warrant would allow (1) a food service establishment within the D3 Transact Zone, (2) outdoor dining areas and display and sale of items from vending carts and (3) a waiver "to allow the adaptive reuse to a restaurant" at 125, 127 and 131 N.W. South River Drive. The PZAB's denial of the appeal would permit a food service establishment is contrary to the following provisions of the Port of the Miami River Element of the City of Miami Comprehensive Plan: 1. Objective PA 3,1 which requires that the Port of the Miami River be protected from encroachment by non - water dependent and non -water related uses. The Page 1 of 3 compliant with the Miami 21 Code because it fails to implement the comprehensive plan and it is contrary to the sequential intensity of transects that is one of the fundamental principles of the Miami 21 Code. The PZAB denial of the appeal and approval of the requested waiver to allow an adaptive reuse of a structure for a restaurant use is not only inconsistent with the comprehensive plan as set out above, but it is also inconsistent With the guiding principles of the Mimi 21 Code. Furthermore, the waiver presents no facts that show practical difficulties caused by the Miami 21 regulations that would be. resolved by the approval of the requested waiver. Therefore, the waiver serves merely to circumvent specific provisions of the Miami 21 Zoning Code. Furthermore, the approval of the waiver is contrary to the essential requirefnents of the law because the apparent standards that are applied in the evaluation of the waiver are vague and. undefined and allow virtually unfettered discretion by the decision -maker in its approval. For all the forgoing reasons the Biscayne Towing & salvage, Inc.,, through this letter, appeals the PZAB denial of the appeal of Warrant No. 2017-0004, to permit food service establishment with outdoor seating and a related waiver for tha property at 125, 127 and 131 N.W. South River Drive, Miami, Florida. Please note that appellant Biscayne Towing & Salvage, Inc. reserves its right to supplement this letter prior to the planning zoning and appeals board consideration of this appeal. Sincerely, z W. Tucker Grbbs cc: Biscayne Towing & Salvage, Inc. Page 3 of 3 Dombrowski, Brian A. (Assoc-Mia-RE) From: Zamora, Olga <OZamora@miamigov.com> Sent: Thursday, July 27, 2017 3:38 PM To: Escarra, [ris (Shad-lvlia-LDZ-RE); Tucker W Gibbs Cc: Dombrowski, Brian A. (Assoc-Mia-RE); Rodriguez, Marisol (Para-Mia-LDZ-RE); Gonzalez, Luciana L.; Garcia, Francisco; Eturrey, Jessica Subject: RE: Appeal On June 23, 2017, Mr. Gibbs requested his appeal to be scheduled for September 28, 2017 because his client was going to be out of town on July 27, 2017. On the week of July 10, 2017, Hearing Boards mailed notices for this item to be heard as part of the meeting scheduled for July 27, 2017. The mistake was caught on the afternoon of Friday July 14, 2017 - too late to stop the advertisement in The Miami Herald. i notified Mr. Gibbs and requested that he make his initial request of the City Commission since notices and advertisement had already been processed for July 27, 2017 as opposed to the September 28, 2017 he had requested. Olga Zamora, Chief Planning and Zoning Department, Hearing Boards Division Direct Line - 305.416.2037 Visit us at: https://urldefense.proofpoint.co;niv2/ur!?u-http-3a www.miamigov.com hearing 5=boards &.d-Dw#GaQ&c=2s2mvbfY0tJoSKklS 019`avII .r=FIJVW {k.Ee3da4i"fJ2oTu8Gz4C183. 7WyRr3i5xoXQ2S'NmN'e&m= DQmYNwXciRbgQpoYQJ J-0lgUJQwfamlvnlsYdWSX > es&s-LQI6dL4nO3pkMOKGrnIAi1fDc93doaiZ3pDzfivFogMEO&e= Original Message ----- From: EscarralPgtlaw.com [mailto:Escarra!',Pgtlaw corn] Sent: Thursday, July 27, 2017 3:32 PM To: Zamora, Olga; Tucker W Gibbs Cc: dombrowskib@gtla'v.com; rodriguezmsrgtlaw.corn; Gonzalez, Luciana L. Subject: Re: Appeal 1 Olga, Tucker has advised that the cause of the delay in the hearing because of a notice issue. Based on the below, 1 was under the impression that Mr. Gibbs requested. Could you please advise? Thanks Iris 2 Oiga Zamora, Chief Planning and Zoning Department, Hearing Boards Division Direct Line - 305.416.2037 Visit us at: https://uride fense.proofpoint.corn/v2/urRu=http-3A www.miamigov.com hearing_ SFboards &d=DwIGaQ&:=2s2mvbfYOUoSKkl6 OI9wg&r=1VE173oxrov1PKb7Mb0OBm2s- zwr8JQZYd gaD16jg8&m-Hopz IFPGS34DZvfiTZDxyf56Frxf56YCldw6KrKggQ&s=8g1e8zOP8aPJirnUHQRCetxGfoz3CTsDk Pa 4vCvkphc&e= <https://urldefense.proofpoint,corn/v2f urI'u=http-3A wwvr •--'amigov.com hearing- 5Fboards &d=DwiMFAg&c=2s2rnvbf'Y0Uo5Kk16 OI9w5,7&r=NKyFIc5i54ZhtQiUZkk ! T kzU3rGTxi1 sBrBrQGsV4&m=YP8h AXF!}TVs: eIKigEAGeIXb9S-N_d!TVOKUv'FL3-oEe4s&s=A6WS231QHCtQ s3QwwwtVFI37asgPa75-TPWgwULrnEudYw&e=> If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postnlasterr`r gtiaw.corn, and do not use or disseminate such information. 4 City Commission Meeting Minutes July 27, 2017 Chair Hardeman: Yeah. well, let's go (U:4'I.vTELLIGIBLE). Mr. Garcia: This would be 8 and 9 Chair Hardemon: So that's 8 and 9. Commissioner Caroilo. That's 8 and 9. indefinite deferral. with a direction to our Administration to do a comprehensive study in that area to verify what zoning that whole area should be. ChairHardemon: Then we have 14 and 15. What was the dates on those? Mr. Garcia: That would be the City Attorneys tlece request — Mr Min: Right. to October, please: the October PZ meeting. Chair Hardernorr.. Okay. Mr. Hannon. That'll be October 26- Chair Hardemon: PZ 15! Mr- Garcia: That would be far the jirsr meeting of the month of September, please. Chair Hardemon: 1$:' 18' .4Ir. Garcia. Oh. I'm sorry- Item 1.2. Item 18 is the Coconrlt Grove Playhouse appeal. If representatives are here. I'd love to hear from them; otherwise. 1 have noted that October 26 is the desired date. by default, sir, because 1 do have it on my notes. as submitted by the applicants. October 26. please. Chair .Hardemon: October 26? Mr. Garcia: Yes. Chair Hardemon: Okay 20? Mr. Garcia: Yes, sir; 2-6. Oh. sorry. Item PZ.20 is also being requested for a deferral Ibelieve the applicant is here. Ir)'s Escarra. 1E Goad atkernoon. Iris EsLarra. wfih offices at 333 Southeast 2nd .-Iwrizte. Irepresetu the developer of the site. [re received un approval in.Ipril. doe went ba;rrre the PZ Hoard irl .tfr.:. We were scheduled here today Air Gibbs represents the appellant si lb.. has asked fir a Jt;terral, and we're okay with than defer-�al However. we are uening for a Seprernher f 4 -- first 'fleeting in September date, and ,41r- Gibbs has a different Brent data. Tucker Gibbs: 5d z11, [ just want to clay fi something. I was -- Vice Chair Russell- Which item, please? Mr. Gibbs: This is item 20. Chair Hardemon: 20 41r Gibbs: I'm representing Biscayne rowing who is tee neighbor. We filed the appeal. but we didn't ask tirr the de1;,er,tl. This is an error made hv' the City in City of Miami Page 185 Printed on 09.13.2017 City Commission Meeting Minutes Jury 27, 2017 Chair Hardman: -- proffered.' Commissioner 5uare_: .G 'hor was -- 12 and 15. what was that to.' .l•!r. Garcia: September 3. Chair Hardenrnn: r111 right All -- Ms_ Escrrr•ra: if may, clarification on the one -- orr PZ.20. Chair flarden otz: 23th. Cscarra: 23th of September, Chair Hardemmn: The -- So as I understand for item -- is it 4 and 5 or 6 and 7' .11r. Hannon: 1 and 5. Chair Hard('rnon -I and 5? So t1pig ally,. When we're having procedural motions, we don't. allot+ any discussion from the public or anyone. even -- 1 mean are you a part ofthe applicant, or -- Jeffrey Bash: Chairman Har•demo.+t if1 may address You -- and rny tzeighbw• lI' are, by the Zoning Code. qualified intervenors In the past. we have been able to speak. Today, you are granting the seventh Commission level deferral for this item that irws pur the neighborhood in distress. in uncertainty /Or the past eight years. Alawe please make our finer -and -a -hail -minute presentation to you? Chair flardemon.• That means that you won't be making voter four•-an_d-a-hai'f- minure presentation letter? t•b. Brash: lin sorry? Chair Hardemon: You won't be making your _lbw -and -a -half presenta -- minute presentation later? It you present todul.• are ynu telling me you won't present the next time this is being heard? .l•lr. Bash. &6e have two requests fi•r;nt you. avd we have a lot ofinfarmation for you that 1 think would be important to you. as guardians of our community, the Commission -- Chair Hardeuaon: Vo, bur _- Hr. Bash: -- here and our tax dollars. Chair Hardenaon: -- understand me. 1. iderstand nhar lin saying to You. Right now. we're moving to continue this to another day. which means we won't be making a decision about this. You want to present your four -and -a -halt minure presentation today. What I'm informing you rff is this: Ij you do it today, 1 won't let you do it the next time this is up So when we're making our decision about this, the fact -- what ,you laid on the record will be on the record. brit you won't be making this presentation again. stir. Bash: I'm perfectly fine with that and -- Vice Chair Russell: lir. Chairman. City of Miami Page I .5 Printed on 09 IS 2017 Dombrowski, Brian A. (Assoc-Mia-RE) Subject: RE: CC Oct. 12 PZ.6 - Appeal of Warrant 2017-0004 From: W. Tucker Gibbs frnailto:tucker,.awtgibbs,com] Sent: Wednesday, October 18, 2017 7:00 AM To: Zamora, Olga Cc: Garda, Francisco; Escarra, Iris (Shad-Mia-LDZ-RE); Min, Barnaby; Mendez, Victoria; City of Miami City Clerk's Office; Suarez -Rivas, Rafael; Gonzalez, Luciana L.; Ellis, Jacqueline; Gonzalez, Silvia; Agenda Office -Dr; Hannon, Todd; Ewan, Nicole; Legislative Division Subject: RE: CC Oct. 12 PZ.6 - Appeal of Warrant 2017-0004 Hello Ms, Zamora, I object to the rescheduling of this matter after the city clerk and city attorney (immediately after the adjournment of the October 12, 2017 city commission meeting) confirmed that my appeal was set for November 16, 2017 pursuant to the city code. My client is not available for the October 26, 2017 meeting. He is available for the November 16 meeting. I am concerned that opposing counsel has directed the scheduling of the hearing of my appeal without my involvement and agreement. I explained to her that my client was not available on October 26 yet she sought and obtained this new date from the city. And the city agreed without consulting me and my client. I immediately telephoned you upon receipt of your email, and left you a message. I have received no response. Please call me immediately to discuss this matter. I will be available by telephone up to 12 noon today and look forward to speaking with you. Sincerely, Tucker Gibbs W. Tucker Gibbs W, Tucker Gibbs, P.A, Attorney at Law P.0, Box 1050 Coconut Grove, Florida 33133 NOTICE: This e-mail is from the law office of W. Tucker Gibbs and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e- mail from your computer and do not copy or disclose it to anyone else. If you properly received this e-mail as a client, co -counsel or retained expert of the office of W. Tucker Gibbs, you should maintain its contents in confidence in order to preserve the attorney -client or work product privilege that may be available to protect confidentiality. From: Zamora, Olga [maiito:OZamora@miamigov.com] Sent: Tuesday, October 17, 2017 1:15 PM To: W, Tucker Gibbs ctucker@wtgibbs,corn> Cc: Garcia, Francisco <fgarcia@rniamigov.com>; Escarral gtlaw.com; Min, Barnaby <bmin@miamigov.com>; Mendez, Victoria <VNIendez@miamigov.com>; City of Miami City Clerk's Office ‹Clerks@miamig_ov.coma; Suarez -Rivas, Rafael cRSuarez-Rivas@miamigov.corn>; Gonzalez, Luciana L. clgonzalezrmiamieov.com>; Ellis, Jacqueline iris V. Escarra Shareholder Greenberg Traurig, P.A. 1 333 S.E. 2nd Avenue i Miami, FL. 33131 Tel 305.579.0737 I Fax 305.961.5737 Escarral®gttaw•com f www.qtlaw.com EGreenbergTraurig From: Min, Barnaby [rnaitto:bmin_fbmiamigov.com] Sent: Friday, October 13, 2017 3:50 PM To: Escarra, Iris (5hld-Mia-LDZ-RE); Mendez, Victoria; City of Miami City Clerk's Office; Zamora, Olga Cc: Garcia, Francisco Subject: RE: CC Oct. 12 PZ.6 - Appeal of Warrant 2017-0004 Ms. Escarra, C}ttl� .IK.12: While I appreciate your citation to Section 7.1.1.5(i) of Miami 21 and the emphasis you added to the word "specially", I believe you neglected to add the emphasis correctly. The emphasis should be placed on "first available City Commission meeting." The Office of Hearing Boards is responsible for scheduling the matters and I believe that item was properly scheduled on the first available City Commission meeting. As to the remaining arguments you raise with respect to Section 2-33 of the City Code, I am sure the Administration will comply with any reasonable requests that do not violate the law. Barnaby L. Min Deputy City Attorney City of Miami Office of the City Attorney Telephone: (305) 4 16-1835 Facsimile: (305) 416-1801 bn.,E, 1..- ,• ;.torn Disclaimer: This electronic mail is intended only for the individual or entity named within the message. This electronic mail may contain legally privileged and confidential information. if you properly received this electronic mail as a client or retained expert: please hold it in confidence to protect the attorney - client cr work product privilevs. Should the intended recipient *ward or disclose this message to another pe:'scn or party, that action could constitute a waiver of the attorney -cheat privilege. If the reader of this message is us the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, list-ihutiun. or copying of this communication is prohibited by the sender and to do so may constitute a violation of the Electronic Communications Pri ocy !la, 18 L.S.C. Section 251)-2521. If this commur:icarion was received to error, we apologize for the intrusion. Please notify us by reply e-mail and delete the original message. Nothing in this electronic mail shall, in and of itself, create an attorney- :lient relationship with the sender. Under Florida law e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request. do not send electronic. mail to this entity. instead. contact this office by phone or En writing. Please conside the en\ironm rt before priming this electronic From: Escarra !lgtlaw.com [mailto:Escarral@gtla v.com] Sent: Friday, October 13, 2017 3:30 PM To: Mendez, Victoria <V lendezi rniami ov.corn>; City of Miami City Clerk's Office `Clerks@miamigov.com> Cc: Garcia, Francisco <fgarcia@miamigov.com>; Min, Barnaby <bmin@miamigov.com> Subject: CC Oct. 12 P2.6-Appeal of Warrant 2017-0004 Ms. City Attorney and Mr. City Clerk: At the October 12, 2017, City Commission meeting, the Chairman concluded the agenda for a lack of quorum at approximately 2:45 pm with multiple unheard items, including P2.6, the appeal of Warrant No. 2017-0004. Miami 21 requires the appeal of the Warrant to be specially set at the next City Commission hearing, October 26, 2017. 3 GreenbergTraurig L.- If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmasteriiLztlaw.com, and do not use or disseminate such information. 5 MIAMI 21 ARTICLE 7. PROCEDURES AND NONCONFORMITIES AS ADOPTED - MAY 2017 ping, Zoning and Appeals Board as agent or attorney for any other person. e. All city departments and employees shall, under the direction of city manager and upon request and within a reasonable time, furnish to the Planning Department such available records ar in- formation as may be required in the work of the Planning, Zoning and Appeals Board. The city manager shall assign a member of the Public Works Department, Planning Department, Zoning Office, Neighborhood Enhancement Team, the Code Enforcement Department and Fire -Rescue Department, or their successors, to attend public hearings of the Board and to advise the board when necessary, and to furnish information, reports and recommendations upon request of the board. The city attorney shall attend public hearings of the board to advise the board when nec- essary and to furnish information, reports and recommendations upon request of the board. f. The Planning, Zoning and Appeals Board ar representatives of the Planning Department may, in the performance of official duties, enter upon lands and make examinations or surveys in the same manner as other authorized city agents or employees and shall have other powers as are required for the performance of official functions in carrying out the purposes and responsibilities of the board. 7.1.1.5 City Commission The City Commission, in addition to its duties and obligations under the City Charter, the City Code, and other applicable law, shall have the following duties specifically in regard to the Miami 21 Code: a. To approve, deny or approve with conditions applications for developments of regional impact pursuant to Chapter 380, Florida Statutes, b. To consider a ed act upon proposed amendments, including rezoning. to the Miami 21 Code, after consideration of the recommendation by the Planning, Zoning and Appeals Board. c. To consider and act upon proposed Special Area Plans, after consideration of the recommenda- tion by the Planning, Zoning and Appeals Board. d. To consider and act upon proposed amendments to the Comprehensive Plan which relate to the Miami 21 Code, after consideration of the recommendation by the Planning, Zoning and Appeals Board. e. To hear appeals of the ruling of the Planning. Zoning and Appeals Board on the appeal of a zoning interpretation, Certificate of Use denial or revocation, planning determination of Use, Warrant, Variance or Exception. f. To consider and adopt ordinances, regulations and other proposals as it deems appropriate for promoting orderly development within the areas of the city that are regulated by the Miami 21 Code. g. To establish a schedule of fees and charges for the applications made pursuant to the Miami 21 Code. h. To appoint members to the Planning, Zoning and Appeals Board, as set forward in this Miami 21 VII.14 Miami. FL Code of Ordinances (4) Any member of the public shall be entitled to be scheduled on the agenda of a regular meeting of the city commission for presentation of information and material to be considered by the commission within the scope of the jurisdiction of the city commission after the city manager has communicated with the member of the public and reviewed or investigated the member's issue, unless otherwise directed by the mayor or a member of the city commission. If the city manager is able to resolve or remedy the concerns of the member of the public, the member of the public may elect to withdraw the request to appear before the city commission. if the matter is not or cannot be resolved or remedied by the city manager, then, at the will of the mernber of the public, the request for appearance shall be scheduled on the next available agenda and the city manager shall submit a report in the agenda packet detailing actions taken to resolve or remedy the matter and administrative recommendations. (5) The total number of items that may be scheduled on a regular city commission agenda shall not exceed 60 items. (6) The lunch recess shall begin: a. At 12:00 noon; or b. At the conclusion of deliberations of the agenda item being considered at 12:00 noon; or c. At the conclusion of statements made by the person who has been recognized to address the commission immediately prior to 12:00 noon; or d. At any time deemed appropriate by the city commission. (7) The city commission meetings, shall adjourn: a. At the conclusion of deliberation of the agenda item being considered at 10:00 p.m., unless the time is extended by unanimous agreement of the members of the city commission then present, or b. At the conclusion of the regularly scheduled agenda, whichever occurs first. This rule does not apply to city commission meetings required for annual budget hearings. (8) about:blank 10/2512017 Miami, FL Code of Ordinances Page4of5 supported by memorandum setting forth the rules of action by the city commission, shall be filed three days before the meeting and given to the mayor and each member of the city commission, (h) Al! ordinances shall be read by title only prior to passage. All resolutions shall be briefly described upon a printed agenda, which agenda shall be furnished to the mayor and members of the city commission at least five full business days before each regular city commission meeting,. (i) Unless further time to speak is granted by the presiding officer the city commission, any person addressing the commission shall limit his or her address to two minutes. (j) Unless impractical to do so, all portions of the agenda shall be scheduled to be heard at 9:00 a.m. on the date of the city commission meeting. The agenda portion entitled "consent agenda" shall be scheduled among the initial items for commission consideration. Consent agenda items that are removed from the agenda prior to city commission consideration shall automatically be scheduled as a regular agenda item at the next regularly scheduled meeting of the city commission, unless, by an unanimous vote of all commissioners present, the city commission considers such consent item as a regular item at the same meeting. (lt) Any scheduled agenda item not considered prior to the adjournment of the first regular monthly city commission meeting shall be perfunctorily regarded as a continued item and scheduled on the next immediate month's first regular city commission agenda. Any scheduled agenda item not considered prior to the adjournment of the second regular monthly city commission meeting shall be perfunctorily regarded as a continued item and scheduled on the next immediate month's second regular city commission agenda. (1) Special meetings. Nothing in this section shall prohibit either the mayor, or the commissioner designated as the presiding officer of the city commission, or three city commissioners, upon the written notice delivered to the city clerk, from calling special meetings at any time set by the city clerk, provided that reasonable advance notice of same is given to the mayor, each member of the commission, city manager, city attorney and the public. No business shall be conducted or a vote taken at a special city commission meeting on business other than the subject(s) for which the special meeting is called. (m)- Any commissioner who so desires may be a signatory on city proclamations. (n) about:blank 10/25/2017 City of Jacksonville V. Huffman, 764 So.2d 695 pool)) 25 Fla. L. Weekly ❑1392 Planning Committee. The circuit court granted the petition for writ of certiorari tiled by the Huffinans, Greenland and Salvatore„ finding that the City had failed to afford them procedural due process and had departed from the essential requirements of law, based upon inadequate notice. We quash the petition for the following reasons. First. the court found that Greenland and Salvatore were denied procedural due process. because they !carved of the hearing set before the Land Use and Zoning Committee "only by accident, too close to the hearing date to actually prepare," and thus were not provided notice pursuant to section 307,204(h) of the Jacksonville Historic Preservation and Protection Ordinance. On the contrary, the complainants never claimed that Greenland and Salvatore did not receive adequate notice of the hearing. In fact, Greenland and Salvatore received actual written notice 19 days before the hearing, as they had expressly stated in their petition for writ of certiorari. Second, the court found that the H:ifftnans were denied procedural due process, because they did not learn of the hearing before the Land Use and Zoning Committee at all. The complainants. however. never asserted this as error in their petition, and, indeed, they appeared at such hearing. They expressly stated in their petition for '.writ of certiorari that the I-iuffinans learned of the hearing five days before it took place. al Third. the court found that the complainants were denied procedural due process. because they were not provided the requisite notice of the initial public hearing before the Historic Preservation Commission. This finding alone. however, could not provide the sole basis for quashing the decision of the City Council, because the complainants were provided a lid! opportunity to present their objections in their appeal of the Commission's decision in a hearing before the Land. Use and Zoning Committee. which was conducted de novo. Fourth, the court found that the City Council's act of granting a Certificate of Approval to the proposed project departed from the essential requirements of la . because the City did not comply with the notice provision of section 30 7.204. Section 307.204 establishes the notice requirements for appeals before the Land Use and Zoning Committee, so presumably the court was referring to notice before the Committee hearing.. The court, however, made no additional findings as to whether the complainants were prejudiced by the inadequate notice. Although strict compliance with sta:utory notice requirements is mandatory, a contesting party's right to assert a defect in such notice may be waived if the party appeared at the hearing and was able to fully and adequately *697 present his or her objections. The defense of waiver will be denied only if the party was unable to fully prepare for and present objections at the hearing or was otherwise prejudiced by the defective notice. See .'[aller v. Clav Countv Zonin; Cnrrrrri'n, 225 So.2d 55 (Fla. 1st DCA 1969)• Schumacher v. Town of Jupiter. 643 So.2d 8 (Fla. 4th DCA 1994). The lower court's only statements r°egar'ding prejudice were: in the two findings discussed above. that Greenland and Salvatore were unable to adequately prepare for the Land Use and Zoning Committee hearing because they had received notice "by accident, too close to the hearing elate," and that the Huffmans "did not learn of the hearing at all.,' As stated, the complainants did not make either assertion in their petition for writ of certiorari. Fifth. the circuit court rejected the complainants` claim that the City Council's act of granting the Certificate of Approval was not supported by competent and substantial evidence. The court found that the complainants had admitted.. and the record showed, that the Land Use and Zoning Committee had considered the documents they had submitted at the hearing, and that the information contained in these documents fairly represented their objections to the building application. The court concluded that it was not permitted in a certiorari proceeding to reweigh the evidence. The court's finding that the documents submitted 'fairly represented their objections to the project" renders the entire order internally inconsistent. If the evidence before the Land Use and Zoning Committee during the de novo hearing fully apprised the Committee of the complainants' objections to the project, and provided competent, substantial evidence for the Certificate of Approval, then it was inconsistent for the lower court to conclude as well that the complainants did not have sufficient notice of the hearing in which to prepare and present evidence. We reject the Citv's remaining* issues. We GRANT the City's petition for writ of certiorari, QUASH the circuit court's order, and REMAND for the court to reconsider the complainants' petition for writ of certiorari below, Schumacher v. Town of Jupiter, 643 So.2d 8 (1994) 19 Fla, L. Weekly D1779 upheld. We see no need to repeat the analysis here. See also Corn v. City of Lauderdale Lakes. 997 F.2d 1369 (11 th Cir. A 993 ). cert. denied. 5 i 1 U.S. 1018, 114 S. Ct. 1400, 128 L.Ed.2d 73 (1994). f31 j3[ On the notice issue, appel.ant claims error in the trial courts finding that he waived the notice requirements by his extensive knowledge ol'and actual attendance and participation it the relevant proceedings. The general rule is that, while strict compliance with statutoy notice requirements is mandatory and jurisdictional, a contesting landowner may waive the right. or be estopped, to assert a defect in the notice if that landowner appeared at the hearing and was able to fully and adequately- present any objections to the ordinance. Malley v. Clay County Zoning Corrrrn'n, 225 So.2d 555. 557 (Fla.. lst DCA 1969). If, however, the notice is so lacking that the landowner was unable to fully prepare for the hearing to voice an objection. or where the landowner can otherwise demonstrate prejudice. then courts will refuse to find a waiver or estoppel. &l. Here. as in Malley. the record reflects that appellant. through counsel. had substantial and continuous knowledge of the pending proceedings and did appear at the final hearing on the proposed ordinance and express his objections. As in ‘lla!iey we find no error in the trial court's holding that appellant waived any claimed defects in the notice and was estopped from asserting such defects as a basis for invalidating the ordinance. ANSTEAD. GLICKSTEIN and STONE. JJ.. concur. All Citations 643 So.2d 3, 19 Fla. L._ Weekly ❑ 1779 End of Doet•men: ©2017 Thomson Reuters- No Claim to original U.S. C-ovemrrent Worxs