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Submittal-Iris Escarra-Warrant Appeal Re Notice
Submitted into the public ? record foritei (s ?L, ' on b 1,6 City Clerk 125, 129, AND 131 NW SOUTH RIVER DRIVE City Commission Meeting 10/26/17 WARRANT APPEAL Appellee's Submittal re: Notice 1. Appellee's Letter to the City Attorney Regarding Notice A. Warrant File No. 17-004 B. Biscayne Towing & Salvage, Inc. Appeal dated April 19, 2017 C. PZAB Resolution PZAB-R-17-033 D. Biscayne Towing & Salvage, Inc. Appeal dated May 30, 2017 E. Email correspondence with City's Hearing Boards Department F. City Commission minutes from July 27, 2017 G. Tucker Gibbs' email correspondence confirming notice of hearing H. Section 7.1.1.5(i) of Miami 21 I. Section 2-33(k) of the City Code J. City of Jacksonville v. Huffman, 764 So. 2d 695, 696-7 (Fla. 1st DCA 2000) K. Schumacher v. Town of Jupiter, 643 So. 2d 8 (Fla. 4th DCA 1994) nocv N\f)A,\\0\- 1,() L3umfo,.- k,c)ok\ GT GreenbergTraurig Victoria Mendez, City Attorney City of Miami Office of the City Attorney Telephone: 305-416-1818 Facsimile: 305-416-1801 vmendez@miamigov.com Submitted into the public record f9r item(s) on 10i . City Clerk October 26, 2017 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. Mendez, The above matter will be heard by the City Commission on October 26, 2017. In anticipation of the hearing and in response to arguments made by the Appellant Biscayne Towing & Salvage, Inc. ("Biscayne Towing"), the Appellee Tasal River Arts ("Tasal River Arts") files the following response: TIMELINE On April 7, 2017, a Warrant was approved with conditions by the City of Miami's Planning and Zoning Department for Tasal River Arts's proposed private yacht club and lounge and yacht sales/rentals (the "Project"), to be located at the property at 125, 127 and 131 N.W. South River Drive, Miami, Florida, 33128 (the "Property"), attached and referred to as Exhibit A. On April 19, 2017, Biscayne Towing appealed the Warrant to the Planning, Zoning, and Appeals Board, attached and referred to as Exhibit B. On May 17, 2017, the Planning, Zoning, and Appeals Board heard and denied Biscayne Towing's appeal of the Warrant under PZAB Resolution PZAB-R-17-033, attached and referred to as Exhibit C. Biscayne Towing appealed the Planning, Zoning and Appeals Board resolution to the City Commission on May 30, 2017, a copy of which is attached and referred to as Exhibit D. Said hearing before the City Commission was scheduled for July 27, 2017. On June 28, 2017, Tucker Gibbs, counsel for Biscayne Towing, requested that the appeal be rescheduled for September 28, 2017, because his client would be out of town on July 27, 2017. This rescheduling would delay resolution of the appeal by an additional two (2) months. The City's Hearing Boards Department mailed the notices for the July 27, 2017, City Commission advertising the appeal, and Tucker Gibbs was advised by the City's Hearing Boards Chief Olga Zamora that he would need to appear at the hearing to request the continuance. A GREENBERG TRAURIG, PA. • ATTORNEYS AT LAW • WWW.GTLAJv.COM 333 S.E. 2nd Avenue • Suite 4400 • Miami, FL 33131-3238 • Tel 305.579.0500 • Fax 305.579.0717 Submitted into the public record foil- ite (s) P t 13 on \b IU If . City Clerk 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 Iris 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, City 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. 2 Greenberg Traurig, P.A. I Attorneys at Law 1333 Avenue of the Americas I Suite 4400 Miami, FL 33131-3238 I Tel 305.579.0500 I Fax 305.579.0717 I www.gtlaw.com Submitted into the public record fo item(s) y 7., A� _ on 10 �iE, /9 . City Clerk Section 2-33(k) of the City Code, attached as Exhibit I, provides "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." This general provision is in conflict with the more specific provision contained in Miami 21 that appeals are to be heard on the first available City Commission agenda. While Section 2-33(k) of the City Code is generally applicable to the City Commission sitting as a legislative body, it does not entertain the hardship to the appellee caused by unnecessary delay and as protected by Section 7.1.1.5 of Miami 21. Section 7.1.1.5(i) of Miami 21 is specific to the City Commission when acting in its appellate capacity, which applies to the current appeal, and requires that the item be specially set for the first available City Commission meeting. Miami 21 imparts a duty to the City Commission to hear these matters expeditiously, in order to prevent further hardship on the appellee. In order to prevent further hardship, this appeal should be heard on October 26, 2017. CASE LAW Tucker Gibbs alleges that he was not given proper notice of the October 26, 2017, City Commission hearing because preliminarily discussions with the City Clerk and City Attorney led him to believe that the appeal would be heard on November 16, 2017. "Although strict compliance with statutory 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 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." City of Jacksonville v. Huffman, 764 So. 2d 695, 696-7 (Fla. 1st DCA 2000) Exhibit J. Further, "the general rule is that, while strict compliance with statutory 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." Schumacher v. Town of Jupiter, 643 So. 2d 8 (Fla. 4th DCA 1994) Exhibit K. Tucker Gibbs assertion that he was improperly noticed for this hearing is improper and irrelevant. Tucker Gibbs was provided notice, via email from the City's Hearing Boards Chief, to which he acknowledged and responded. Availability of the Appellant is not a factor to be considered for a further continuance, as the Appellant is represented by counsel who can fully and adequately present his or her case regarding the appeal. Additionally, Tucker Gibbs is not prejudiced in any way by the October 26, 2017, City Commission hearing date, as this case has been set multiple times before the City Commission for which the Appellant should have been prepared to present his case. The only part prejudiced by the requested deferral by Tucker Gibbs is Tasal River Arts, which has been denied the approved use of its property during the pendency of this appeal. Further delay in the resolution of this appeal will irreparably harm Tasal River Arts, and Tucker Gibbs request for further delay should be denied. 3 Greenberg Traurig, P.A. I Attorneys at Law 1333 Avenue of the Americas I Suite 4400 I Miami, FL 33131-3238 1 Tel 305.579.0500 I Fax 305.579.0717 j www.gtlaw.com Submitted into the public record f r item(s) �L.13 on 1blit 111 City Clerk 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 Attorney's Office W. Tucker Gibbs (via Hand Delivery at Hearing) City Commissioners (via Hand Delivery) 4 Greenberg Traurig, P.A. I Attorneys at Law 1333 Avenue of the Americas I Suite 4400 I Miami, FL 33131-3238 I Tel 305.579.0500 I Fax 305.579.0717 I www.gtlaw.com ! L DECISION ris Escacra, Esq Greenberg Traurig, PAzi • 333-SE 2rd Avenue, Miami, FL Miami, FL3311, • f 13.,f F�on: Francisco J.: Garcia, Director [" - Planning &'-Zoning,Department Submitted into the public record fov itepi(s) P Z . 13 on 10160 City Clerk File No. 17-0004 PLEASE TAKE NOTICE THAT A FiNAL,DFCISION HAS BEEN REACHED ON THE FOLLOWING MATTER: ci•Title: = Food:.Service Establishment & Outdoor Dining (River Arts Building) -.`;Address: 125;1.27 and 131 NW S. River Dr., Little Havana NET Final Decision: ❑ Approval • Approval with condition ❑ Denial Prepared by: Luiz Vicentini, Planner 1305-416-1408 Amanda Smith, Planner 1305-416-1433 FINDINGS AND CONDITIONS The subject proposal has been reviewed for the following: 1- A Warrant pursuant to Article 4 Table 3 of the Miami 21 Code, as adopted, the Zoning Ordinance of the City of Miami, Florida. This Section states that Food Service Establishments located within a D3 Transect 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 Infiil & 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: ■ 1 ' ubmitted into the public scco:cl fo itci (s) Z, \3 on to 1'u Ji . City Clerk FINDINGS File No. 17-0004 • This application is to permit a private yacht club and lounge with yacht sales/rentals at the Property with an accessory Food Service Establishment with Outdoor Dining Areas within D3 (Marine Industrial) Transect Zone. The accessory, onsite restaurant maintains a water dependent use by emphasizing local seafood, furthermore providing a dock space for commercial fishing vessels to unload and sell their seafood. • The application does not require a Future Land Use Map (FLUM) amendment as the proposed primary use is yacht rental/sales and the accessory use is a Food Service Establishment as is permitted within the Industrial designation. • FS 342.07(2): the term °recreational and commercial working waterfront' means a parcel or parcels of real property which provide access for water -dependent commercial activities, including hotels and motels as defined in s. 509.242(1), or provide access for the public to the navigable waters of the State. Recreational and commercial working waterfronts require direct access to or a location on, over, or adjacent to a navigable body of water. The term includes water -dependent facilities that are open to the public and offer public access by vessels to the waters of the state or that are support facilities for recreational, commercial research, or governmental vessels. • Yachtlife offers a water dependent facility, open to the public, offering public access by vessels to the waters of the state. • Pursuant to Policy PA-3.1.5;-the City shall encourage the development and expansion of the Port of Miami River Working Waterfront consistent with the FLUM as well as the Coastal Management Element of the Miami Comprehensive Neighborhood Plan (MCNP). • The proposed Yachtlife Lounge will occupy the existing building located at 131 NW South River Drive,:providing a buffer between the current uses located northwest of the Property and the proposed outdoor dining accessory use further south on the Property. • The Food Service Establishment is located within two existing, separated buildings. The existing building at the northwest of the property includes both an indoor dining area, situated in the westem portion of the building, and the Yachtlife Lounge, situated in the eastem portion of the building. The indoor dining and commercial fish sales area located in the southeast includes one bar counter with seats. The outdoor dining area contains eight tables and 32 seats and is located between the existing buildings, overlooking the Miami River. • The application fulfills the intent of the Miami River Corridor Urban Infill Plan for the East Little Havana neighborhood. This plan notes that while the Industrial Use is an appropriate and desirable use for the area, an expansion of allowable uses to include office and commercial (restaurant or retail) as accessory only is also encouraged, assuring that the development maintains the requirement for a primary water -dependent use. • The application provides numerous job opportunities that are hot provided by the currently unoccupied site. This serves to meet the intent of the MCNP's Port of Miami River Sub - Element that emphasizes the economic development of the Miami River through job creation and employment opportunities. • The application provides access to the Miami River that is currently not provided for the adjacent residential community. The access provided will serve to enliven the South River Drive on -road Greenway as well as increase the economic viability of the existing waterfront industrial site. Sub, :iited into the publicf� record for itet s) on 1 . City Clerk 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/seafood, and general business office as well as CUs for industrial - manufacturing & processing with a CU property class of printing/publshing allied industrial. The property isnot currently being utilized for any use, water -dependent or otherwise. The application proposes uses that are similar in nature to 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 matter, staff recommends approval with 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 6, Section 6.3.2, and 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 entitled "River Arts Complex - Warrent Submittar 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. r.,. 3: To assure that a water dependent uss is achieved', - Class I and Marine.;Operating Permsshall be approved prior to the,issuanoeofa bu, .permit for this site. 4. Applicant shall maintain compliance with' the Lo*erRiver'design development regulations of both the Miami River Greenway Action Plan and the Miami River Greenway 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 Arborist 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 Florida Licensed Landscape Architect in accordance with Article 9 of the Miami 21 Code. 8. The applicant shall comply with the public 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. Signage shall be reviewed under a separate permit application and is not a part of this Warrant submittal or approval. 3 Submitted into the public 7 record for items P L. . 13 on 1 ! 1. r�l i . City Clerk File No.17-0004 10. My noise generated on site shall conform to Chapter 36 of the City Code noise regulation. 11, It shall be unlawful to play or operate music boxes, jukeboxes, radios, musical instruments or any other musical devices on or about the premises between the hours of 11 p.m. and 7 a.m. the following day, unless said music devices are played or operated in a closed building and the sound is not audible from the outside of the building so as to disturb the quiet, comfort or repose of persons in any dwelling, hotel or other type of residence. 12. Any concerns or complaints related to noise nuisance will be addressed and resolved immediately. 13. The subject property shall comply with all Building Code regulations and shall not have any open Code Violations. 14. Failure to comply with the conditions herein shall result in the revocation of this Warrant. NOTICE The final decision of the Director may be appealed to the Planning, Zoning, and Appeals Board by any aggrieved party, within fifteen (15) days of the date of Issuance by filing a written appeal and appropriate fee with the Office of Hearing Boards, located at 444 SW 2nd Ave., 3rd Floor I, FL 33130. Telephone number (305) 416-2030. Signa ranci • . r arc'=, Di Plann • : •nin: Department 4 Date I I 1 1 1 appllc CRATED &!tEVIEW ILDtNG DISP,DSITION IySic I f�i a " • Zia le t th I RITERI Submitted into the public record for iten�c s) 9 Z , V on \C I16 (!'7 • City Clerk DECISION LE 4 TABLE 12 is subject to conditions. me, subject to review and approval. File No.17-0004 Applicability Compliance ext taking into N/A , existing urban tions. (2) For Bui 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. 11) BUILDING CONFIGURATION: Applicability Compliance (1) Articulate the Building Facade vertically and N/A 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 and convenient pedestrian access from the public sidewalk. (8) Building sites should locate service elements, N/A such as trash dumpsters, utility meters, loading docks, backflow preventers, siamese connections and electrical, plumbing, mechanical and Yes ;t.abniitted into the public Z l �:cc:rd for item s) 7 . City Clerk File No.17-0004 communications equipment away from a street front. All service elements shall be situated and screened from view to the street and adjacent properties. 111) BUILDING FUNCTION & DENSITY: Applicability Compliance (1) Respond to the Neighborhood context and Yes Yes Transect Zone. IV) PARKING STANDARDS: Applicability Compliance (1) Minimize the impact of automobile parking and N/A driveways on the pedestrian environment and adjacent properties, especially T3 areas. (2) For pedestrian and vehicular safety minimize N/A conflict points such as the number and width of driveways and curb cuts. (3) Minimize off-street parking adjacent to a N/A thoroughfare front and where possible locate parking behind the Building. (4) Design landscaping or surface parking areas as N/A buffers between dissimilar Uses. (5) Screen parking garage structures with Habitable N/A Space. Where Habitable Space is not provided, architectural treatments and landscaping shall screen the garage structure. V) LANDSCAPE STANDARDS: Applicability Compliance (1) Preserve existing vegetation and/or geological N/A features whenever possible. (2) Reinforce Transect Zone intention by integrating N/A landscape and hardscape elements. (3) Use landscaping to enhance Building design and N/A continuity of Streetscape. (4) Use landscape material, such as plantings, N/A trellises, pavers, screen walls, planters and similar features, to enhance building design and continuity of streetscape. (5) Provide landscaping that screens undesirable N/A elements, such as surface parking lots, and that enhances open space and architecture. VI) SIGN STANDARDS: Applicability Compliance (1) Provide signage appropriate for the scale and N/A"* character of the project and immediate 6 Submitted into the public YZ 1� record fo ite (s) on lu 17 (j'? . City Clerk File No. 17-0004 Neighborhood. (2) Provide functional and aesthetic signage N/A'* identifying Building addresses at the entrance(s). VII) AMBIENT STANDARDS: Applicability Compliance (1) Provide lighting appropriate to the Building and N/A 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 Tight. 7 W. TUCKER GIBBS, P.A. ATTORNEY AT LAW P.O. BOX 1050 COCONUT GROVE FL 33133 TELEPHONE (30S) 448-8486 FACSIMILE (305) 448,:0773 tuckerdwtgibbs.corn April 19, 2017 Olga Zamora Hearing Boards Office City of Miami 444 S.W. Second Avenue, 3rd Floor Miami, Florida 33130 Submitted into the public record f r ite ii(s) �3 on 10 I lA / J'7 City Clerk VIA HAND DELIVERY Re: Appeal of Warrant No. 2017-0004 to allow a food service establishment and outdoor dining within the D3 Transect. 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.W. 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. Submitted into the publicp record t ite (s) C Z, \ 5 on i��� . City Clerk food service establishment neither encourages nor maintains a working waterfront use or uses within the Port of the Miami River Working Waterfront. 3. Policy PA 3.1.4 which also requires the city to discourage encroachment into the Port of the Miami River Working Waterfront by incompatible uses. The proposed incompatible food service establishment is an impermissible encroachment into the Port of the Miami River Working Waterfront. 4. Policy PA 3.1.5 which requires the city to encourage the expansion of the Port of the Miami River Working Waterfront consistent with specific elements of the comprehensive plan. The proposed food service establishment is inconsistent with other provisions of the comprehensive plan. 5. Policy PA 3.1.6 which requires the city to encourage development within the Port of the Miami River Working Waterfront that are compatible and suitable with the existing Industrial land use of the property. The proposed food service establishment is neither compatible nor suitable with the intense marine industrial uses that characterize the Port of the Miami River Working Waterfront. The proposed food service establishment use is not an accessory use to the proposed yacht club and lounge with yacht sales and rentals. No definition of "accessory use" is provided in the warrant nor are any facts presented that show that the proposed food service establishment meets any definition of accessory use. The proposed food service establishment fails to meet the requirement of an accessory use in the Miami River Infill Plan as determined by the Miami River Commission. There is no evidence in the record that shows that the proposed private yacht club and lounge is the principal use and that the proposed food service establishment is accessory to that use. The approval of this warrant is inconsistent with the City of Miami Comprehensive Plan because it fails to protect the Working Waterfront of the Port of the Miami River. Furthermore, the requested warrant is not 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. Page 2 of 3 L Submitted into the public record f r item(s) 1 Z, I on I Z(, '1 City Clerk 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, 4tild(4 W. Tuckers cc: Biscayne Towing & Salvage, Inc. Page 3 of 3 City of Miami PZAB Resolution Enactment Number: PZAB-R-17-033 Submitted into the public 0� I record fo itei; (s) on 10 I7(, I I City Cleric City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File ID: 2216 Final Action Date: 5/17/2017 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 D3 ("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 D3 ("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. 2017-0004 pursuant to Article 4, Table 3 of Ordinance No. 13114, as amended, the Zoning Ordinance of the City 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 an adaptive use of 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 the Office of Hearing 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 ("MCNP"); 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 WHEREAS, the proposal does fulfill the intent of the Miami River Corridor Urban Infill Plan for the East Little Havana neighborhood; and WHEREAS, approval of Warrant No. 2017-0004 does serve to meet the intent of the MCNP'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 Submitted into the public 1 12 record for ite (s) , on IC � 7 (� In . City Clerk that is currently not provided for the adjacent residential community and the access provided will serve to increase the economic viability of the existing waterfront industrial site; and WHEREAS, in accordance to Policy PA-3.1.5, the City should encourage the development and expansion of the Port of Miami River Working Waterfront consistent with the FLUM as well as the Coastal Management Element of the MCNP; and WHEREAS, previous Certificates of Use ("CU") for the site included general commercial, machinery manufacture, boat/pleasure craft sales, canning/preserving of fish/seafood, and general business office, industrial - manufacturing & processing, printing/publishing allied industrial; and WHEREAS, Department of Planning and Zoning staff found that Warrant No. 2017-0004 was consistent with the goals of the Miami 21 Code; and WHEREAS, the conditions of Warrant No. 2017-0004 are: (1) the project must be developed consistent with the plans entitled "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; (3) 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; (4) to assure that a water dependent use is achieved, the Class I and Marine Operating Permits shall be approved prior to the issuance of a building permit for this site; (5) the proposal shall maintain compliance with the Lower River design development regulations of both the Miami River Greenway Action Plan and the Miami River Greenway 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; (6) if deemed necessary by the Historic Preservation Officer, any work creating ground disturbance shall require a Certificate to Dig; (7) brick pavers over critical root zone of trees are not permitted and a Tree Protection plan prepared by a State of Florida Licensed Arborist to show how installation may be executed without damage to the root system of existing trees is required prior to construction; (8) a Landscape Plan prepared by a State of Florida Licensed Landscape Architect in accordance with Article 9 of the Miami 21 Code is required prior to construction; (9) the proposal must comply with the public art requirements pursuant to Section 2-11.15 entitled "Art in Public Places" of the Miami Dade County (MDC) Code of Ordinances and the Art in Public Places procedures numbered 358; (10) signage shall be reviewed under a separate permit application and is not a part of this Warrant submittal or approval; (11) noise generated on site shall conform to Chapter 36 of the City Code; (12) it shall be unlawful to play or operate music boxes, jukeboxes, radios, musical instruments, or any other musical devices on or about the premises between the hours of 11:00 p.m. and 7:00 a.m. the following day, unless said music devices are played or operated in a closed building and the sound is not audible from the outside of the building so as to disturb the quiet, comfort, or repose of persons in any dwelling, hotel, or other type of residence; (13) any concerns or complaints related to noise nuisance will be addressed and resolved immediately; (14) the subject property shall comply with all Building Code regulations and shall not have any open Code Violations; and (15) failure to comply with the conditions herein shall result in the revocation of Warrant No, 2017-0004; and WHEREAS, based on the testimony and evidence presented, after due notice and an opportunity to be heard has been afforded to all parties and members of the public, there is substantial evidence in the record to deny the appeal of Warrant No. 2017-0004; 2 OF 3 File ID 2216 Submitted into the public record for ite (s) 1,L. 13 on 10 1 Z(C 11' . City Clerk 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 are 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. This Resolution shall be effective immediately upon its adoption. APPROVED AS TO LEGAL FORM AND CORRECTNESS THIS DECISION IS FINAL UNLESS APPEALED WITHIN 15 DAYS WITH THE OFFICE OF HEARING BOARDS. ')Francisco Garcia, Director Planning and Zoning Department STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) Personally appeared before me, the undersigned authority. Execution Date Clerk of the Office of Hearing Boards of the City of Miami, he/she executed the foregoing Resolution. SWORN AND SUBSCRIBED BEFORE ME t"1tl\� ,2017. S\\Gnnza I,vZ Print Notary Name ! (i_1Cr '; l' ;l,iV L. r Florida, and acknowledges that I l?..54" DAY OF AA_ Notary PisbIIG 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 SILVIA GONZALEZ MY COMMISSION k GG 051561 EXPIRES: Nommb, r 30. 20i0 Bonded Thm Notary Put to Undonn;ars W. TUCKER GIBBS, P.A. ATTORNEY AT LAW P.O. BOX 1050 COCONUT GROVE FL 33133 TELEPHONE (305) 448-8486 FACSIMILE (305) 448-0773 ticker a taibbs,cnm May 30, 2017 Olga Zamora Heating Boards Office City of Miami 444 S.W. Second Avenue, 3rd Floor Miami, Florida 33130 Submitted into the public record f r it m(s) on 10 fain City Clerk VIA HAND DELIVERY Re: Appeal of P2AB 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 property"). 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 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. 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 Submitted into the publi record fqr itein(s) on \ 16II1 City Clerk 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 " food service establishment neither encourages nor maintains a working waterfront use or uses within the Port of the Miami River Working Waterfront. 3. Policy PA 3.1.4 which also requires the city to discourage encroachment into the Port of the Miami River Working Waterfront by incompatible uses. The proposed incompatible food service establishment is an impermissible encroachment into the Port of the Miami River Working Waterfront. 4. Policy PA 3.1.5 which requires the city to encourage the expansion of the Port.of the Miami River Working Waterfront consistent with specific elements of the comprehensive plan. The proposed food service establishment is inconsistent. with other provisions of the comprehensive plan. 5. Policy PA 3.1..6 which requires the city to encourage development within the Port of the Miami River Working Waterfront that are compatible and suitable with the existing Industrial land use of the property. The proposed food service establishment is neither compatible nor suitable with the intense marine •industrial uses that characterize the Port of the Miami River Working Waterfront. The proposed food service establishment use is not an accessory use to the proposed yacht club and lounge with yacht sales and rentals. No definition of "accessory use" is provided in the warrant nor are any facts presented that show that the proposed food service establishment meets any definition of accessory use. The proposed food service establishment fails to meet the requirement of an accessory use in the Miami River Infill Plan as determined by the Miami River Commission. There is no evidence in the record that shows that the proposed private yacht club and lounge is the principal use and that the proposed food service establishment is accessory to that use. The PZAB denial of the appeal and approval of this warrant is inconsistent with the City of Miami Comprehensive Plan because it fails to protect the Working Waterfront of the Port of the Miami River. Furthermore, the requested warrant is not Page 2 of 3 Submitted into the public 7.,13 City Clerk record f r item(s) on 10� 1, / ,) l7 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 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, 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 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 prior to the planning zoning and appeals board consideration of this appeal. Sincerely, W. Tucker G bs cc: Biscayne Towing & Salvage, Inc. Page 3 of 3 Dombrowski, Brian A. (Assoc-Mia-RE) Submitted into the public record fo iterr s� on 10 I7, (s j 1 City Clerk From: Zamora, Olga <OZamora@miamigov.com> Sent: Thursday, July 27, 2017 3:38 PM To: Escarra, Iris (Shld-Mia-LDZ-RE); Tucker W Gibbs Cc: Dombrowski, Brian A. (Assoc-Mia-RE); Rodriguez, Marisol (Para-Mia-LDZ-RE); Gonzalez, Luciana L.; Garcia, Francisco; Iturrey, Jessica Subject: RE: Appeal On June 28, 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.com/v2/url?u=http-3A www.miamigov.com hearing- 5Fboards &d=DwIGaQ&c=2s2mvbfYOUoSKkl6 O19wg&r=FWWKkEe8da4HJ2oTu8Gz4QB3AyWyRrB15xoXQ2SWmNk&m= DQmTNwXciRbqQpoYQUN-OIglJQwfamlvmsYdWBX 6es&s=LQI6dL4nO3gkMOKGmINyfDc98dpaiZ3pDzfTvFggME0&e= Original Message From: Escarral@gtlaw.com [mailto:Escarral@gtlaw.com] Sent: Thursday, July 27, 2017 3:32 PM To: Zamora, Olga; Tucker W Gibbs Cc: dombrowskib@gtlaw.com; rodriguezms@gtlaw.com; Gonzalez, Luciana L. Subject: Re: Appeal t Submitted into the public record f r iter (s� �Z ( 1 on \ �� 7, ( / I I . City Clerk Olga, Tucker has advised that the cause of the delay in the hearing because of a notice issue. Based on the below, I was under the impression that Mr. Gibbs requested. Could you please advise? Thanks Iris 2 Submitted into the public record foritem(s) on \� ��, I I� . City Clerk Iris Escarra, Esq. Greenberg Traurig Sent from my iPhone On Jun 28, 2017, at 4:22 PM, Zamora, Olga<OZamora@miamigov.com<mailto:OZamoraWmiamigov.com» wrote: Hello, The appellant has submitted a request to change the date as their client will be in town. As you know, one administrative consideration is provided to appellants and applicants whom submit written requests and notification. Regards, 3 Submitted into the pub1i9. ,� record forite (s) on lb / ,� / 1 . City Clerk Olga Zamora, Chief Planning and Zoning Department, Hearing Boards Division Direct Line - 305.416.2037 Visit us at: https://urldefense.proofpoint.com/v2/url?u=http-3A www.miamigov.com hearing- 5Fboards &d=DwIGaQ&c=2s2mvbfYOUoSKkI6 O19wg&r=1VE173pxrovJPKb7Mb0OBm2s- zwr8JQZYd gaD16jg8&m=Hopz IFPGSB4DZvfiTZDxyfS6Frxf56YCIdw6KrKgQQ&s=8gge8z0P8pPJimUHQRCetxGfoz3CTsDk Pa 4vCykphc&e= <https://urldefense.proofpoint.com/v2/url?u=http-3A www.miamigov.com hearing- 5Fboards &d=DwMFAg&c=2s2mvbfYOUoSKk16 O19wg&r=NKyHc5i54ZhtQUZkkpFAD6kzU3rGTx11 sBrBrQGsV4&m=YP8h AXFIWsbeKigEAGgXb9S-HLdITVOKUyFL3-oEe4s&s=A6WS231QHCtQh3QwtVF137asgPa7S-TPWgwULmEudYw&e=> If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com, and do not use or disseminate such information. 4 City Commission Submitted into the public. record for item] (s) L, on \ Q it b . City Clerk Meeting Minutes July 27, 2017 Chair Hardemon: Yeah, well, let's go (UNINTELLIGIBLE). Mr. Garcia: This would be 8 and 9. Chair Hardemon: So that's 8 and 9. Commissioner Carollo: That's 8 and 9, indefinite deferral, with a direction to our Administration to do a comprehensive study in that area to verb what zoning that whole area should be. Chair Hardemon: Then we have 14 and 15. What was the dates on those? Mr. Garcia: That would be the City Attorney's Office request -- Mr. Mina Right; to October, please; the October PZ meeting. Chair Hardemon: Okay. Mr. Hannon: That'll be October 26. Chair Hardemon: PZ 16? Mr. Garcia: That would be for the first meeting of the month of September, please. Chair Hardemon: 18? 18? Mr. Garcia: Oh, I'm sorry. Item 18. Item 18 is the Coconut Grove Playhouse appeal. If representatives are here, I'd love to hear from them; otherwise, I 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 PZ20 is also being requested for a deferral. I believe the applicant is here. Iris Escarra: Hi. Good afternoon. Iris Escarra, with offices at 333 Southeast 2nd Avenue. I represent the developer of the site. We received an approval in April. We went before the PZ Board in May. We were scheduled here today. Mr. Gibbs represents the appellant, who has asked for a deferral, and we're okay with the deferral. However, we are asking for a September 14 — first meeting in September date, and Mr. Gibbs has a different date. Tucker Gibbs: Well, I just want to clari6, something. I was -- Vice Chair Russell: Which item, please? Mr. Gibbs: This is item 20. Chair Hardemon: 20. Mr. Gibbs: I'm representing Biscayne Towing, who is the neighbor. We filed the appeal, but we didn't ask for the deferral. This is an error made by the City in City of Miami Page 186 Printed on 09/18/2017 Submitted into the public,\ reconorf l��h���9 �Z,\� b City Clerk City Commission Meeting Minutes July 27, 2017 notification, and the notification went out in error. I spoke to the Hearing Boards Office when it happened, and I said 1 had no problem; I would just come up and ask to defer it. But the original time was going to be the 27th. My client is not in town on the 14th, and my client is the appellant. He wants to be able to testify. Chair Hardemon: So the 27th of -- Mr. Gibbs: Of September. Chair Hardemon: -- that's the next like meeting, right? Mr. Gibbs: Yes. Chair Hardemon: Okay, that's when it'll be. Ms. Escarra: Or the 28th. Mr. Gibbs: Or 28th. I'm sorry. 1 apologize. Chair Hardemon: Whenever the next like meeting will be. Mr. Gibbs: Yes. Thank you. Chair Hardemon: So -- Ms. Escarra: And I'm just asking -- Our client has been waiting in order to be able to proceed with this development. It's an economic hardship for them to have been carrying this property through this appeal process, and it's already been six months. Chair Hardemon: Understood. Ms. Escarra: Now, we understand he's not here in town, as well, today, and we're okay with the deferral. It was my understanding that Mr. Gibbs had requested the deferral, so I apologize if there was a misunderstanding with staff, but 1 thought it was their request. But we would ask to, please, for the courtesy of at least the two weeks. It makes a big difference for our developer to be able to proceed. Chair Hardemon: So 10 and 11 is a continuance, so I'm assuming it's the next like meeting. Mr. Garcia: 1 believe that's the case, yes. September 28 is the request, sir. Chair Hardemon: Okay. And then some continuances from the dais; withdrawals or deferrals? Vice Chair Russell: Yes, Mr. Chairman. Chair Hardemon: You're recognized, sir. Vice Chair Russell: PZ. 12 and 13, Day Avenue properties, defer to second meeting in September, please. Chair Hardemon: Are there any other items? So the mover and the seconder will agree to all the language that's been -- Commissioner Suarez: Yes. City of Miami Page 187 Printed on 09/18/2017 City Commission -Meeting Minutes Chair Hardemon: -- proffered? Commissioner Suarez: What was -- 12 and 13, what was that to? Mr. Garcia: September 28. Chair Hardemon: All right. All -- Ms. Escarra: If I may, clarification on the one -- on PZ.20. Chair Hardemon: 28th. Ms. Escarra: 28th of September. Chair Hardemon: The -- So as I understand, for item -- is it 4 and 5 or 6 and 7? Mr. Hannon: 4 and 5. Submitted into the pubic record fq r ite (s) Z, 11j on k I17 . City Cleric July 27, 2017 Chair Hardemon: 4 and 5? So typically, when we're having procedural motions, we don't allow any discussion from the public or anyone, even -- I mean, are you a part of the applicant, or -- Jeffrey Bash: Chairman Hardemon, if I may address you -- and my neighbor. We 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 has put the neighborhood in distress, in uncertainty for the past eight years. May we please make our four -and -a -half -minute presentation to you? Chair Hardemon: That means that you won't be making your four -and -a -half - minute presentation later? Mr. Bash: I'm sorry? Chair Hardemon: You won't be making your four -and -a -half presenta -- minute presentation later? If you present today, are you telling me you won't present the next time this is being heard? Mr. Bash: We have two requests from you, and we have a lot of information for you that 1 think would be important to you, as guardians of our community, the Commission -- Chair Hardemon: No, but -- Mr. Bash: -- here and our tax dollars. Chair Hardemon: -- understand me. Understand what I'm 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 -ha f minute presentation today. What I'm informing you of is this: If you do it today, I 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, but you won't be making this presentation again. Mr. Bash: I'm perfectly fine with that and -- Vice Chair Russell: Mr. Chairman. City of Miami Page 188 Printed on 09/18/2017 Dombrowski, Brian A. (Assoc-Mia-RE) Submitted into the public, record f r ite?(s) Lr' on ►t) � I ►r . City Clerk Subject: RE: CC Oct. 12 PZ.6 - Appeal of Warrant 2017-0004 From: W. Tucker Gibbs [mailto:tucker@wtgibbs.com] Sent: Wednesday, October 18, 2017 7:00 AM To: Zamora, Olga Cc: Garcia, Francisco; Escarra, Iris (Shld-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 -DI; 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, RA. Attorney at Law (3051-348-,488Work (3051 788-2720Mobile tucker wtgibbs,conm P.O. 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 [mailto:OZamora@miamigov.com] Sent: Tuesday, October 17, 2017 1:15 PM To: W. Tucker Gibbs <tucker@wtgibbs.com> Cc: Garcia, Francisco <fgarcia@miamigov.com>; Escarral@gtlaw.com; Min, Barnaby <bmin@miamigov.com>; Mendez, Victoria <VMendez@miamigov.com>; City of Miami City Clerk's Office <Clerks@miamigov.com>; Suarez -Rivas, Rafael <RSuarez-Rivas@miamigov.com>; Gonzalez, Luciana L. <Ionzalez@miamigov.com>; Ellis, Jacqueline 1 <JEllis@miamigov.com>; Gonzalez, Silvia <SilGonzalez@miamigov.com>; Agenda Office -DI <Agenda0ffice- DL@miamigov.com>; Hannon, Todd <thannon@miamigov.com>; Ewan, Nicole <newan@miamigov.com>; Legislative Division <VAgenda@miamigov.com> Subject: RE: CC Oct. 12 PZ.6 - Appeal of Warrant 2017-0004 Submitted into the pub Importance: High record fk.r ite (s) L, on —��t2 . City Clerk Hello Mr. Gibbs, Your appeal of the PZAB decision related to Warrant 2017-0004 (File ID 2508) has been scheduled for the October 26, 2017 City Commission meeting. Your item will be PZ.13 on the City Commission agenda. This email serves as notification. If you have any questions, or concerns, please feel free to contact me. Regards, Olga Zamora, Chief Planning Department, Hearing Boards Division Direct Line - 305.416.2037 Visit us at: http://www.miamigov.com/hearing boards/ From: Escarral@gtlaw.com [mailto:Escarral@gtlaw.com] Sent: Friday, October 13, 2017 4:28 PM To: Min, Barnaby; 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 Mr. Min: Thank you for your comments. I needed to include the history of this item and its scheduling for background to express what we have been through. We have also listed other options for the City's consideration in scheduling this item for the October 26th Agenda. Lastly, just a minor change, in the Notice: 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 AND THE DISPLAY AND SALE OF ITEMS FROM VENDING CARTS; 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, AND 131 NORTHWEST SOUTH RIVER DRIVE, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. As we are only asking for Outdoor Dining Area, no vending carts requested. Many thanks, Iris 2 Iris V. Escarra Shareholder Greenberg Traurig, P.A. 1333 S.E. 2nd Avenue I Miami, FL 33131 Tel305.579.0737 I Fax 305.961.5737 Escarral®Qtlaw.com I www.Qtlaw.com GreenbergTraurig •n J Submitted into the public record fqr itc n(s) on �til61fl From: Min, Barnaby [mailto:bmin@miamigov.com] Sent: Friday, October 13, 2017 3:50 PM To: Escarra, Iris (Shld-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, . City Clerk 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) 416-1835 Facsimile: (305) 416-1801 bmin@miamigov.com 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 or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney -client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution, or copying of this communication is prohibited by the sender and to do so may constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510-2521. If this communication was received in 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 - client 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 in writing. Please consider the environment before printing this electronic mail. From: Escarral@gtlaw.com [mailto:Escarral@gtlaw.com] Sent: Friday, October 13, 2017 3:30 PM To: Mendez, Victoria <VMendez@miamigov.com>; 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 PZ.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 PZ.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 Submitted into the public record fo itc (s pZ, )" I L 6IL City Clerk Warrant No. 2017-0004 was issued on April 7, 2017 and appealed on April 19, 2017. The appeal was heard by the Planning, Zoning, and Appeals Board on May 17, 2017, at which hearing the appeal was denied. The Warrant was subsequently appealed to the City Commission on May 30, 2017. Section 7.1.1.5(i) of Miami 21 specifically states (please see attached) 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. The City failed to abide by its own law when it did not specially set the appeal for City Commission in June. Instead, the appeal to the City Commission was set for July 27, 2017; however, the appellant, Tucker Gibbs, requested a continuance until September 28, 2017, because his client was not available (please see email confirmation from the City's Chief of Hearing Boards regarding continuance). While this delay prejudiced the appellee, 7.1.4.5(e) of Miami 21 affords an applicant the right to one continuance (which Hearing Boards has interpreted to apply to appellants as well). As such, the City Commission was to hear the matter on the Planning and Zoning Agenda of September 28, 2017; however, the item was continued to October 12, 2017, at the request of the District Commissioner. The item was then scheduled for the October 12th City Commission hearing. As noted above, said City Commission hearing was adjourned prior to the hearing of PZ.6. Section 2-33(k) of the City Code provides "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." This general provision is in conflict with the more specific provision contained in Miami 21 that appeals are to be heard on the first available City Commission agenda. While Section 2-33(k) of the City Code is generally applicable to the City Commission sitting as a legislative body, it does not entertain the hardship to the appellee caused by unnecessary delay and as protected by Section 7.1.1.5 of Miami 21. Section 7.1.1.5(i) of Miami 21 is specific to the City Commission when acting in its appellate capacity, which applies to PZ.6, and requires that the item be specially set for the first available City Commission meeting. Miami 21 imparts a duty to the City Commission to hear these matters expeditiously, in order to prevent further hardship on the appellee. Additionally, Section 2-33(c)(1) of the City Code states "the agenda shall be prepared by the city manager in an appropriate form approved, from time to time, by the city commission. Matters may be placed on the agenda by the mayor, any member of the city commission, the city manager, the city attorney, the city clerk, and a city board as created by resolution of the city commission or as defined in section 2-882 of this Code." As such, at the request of any member of the City Commission, an item may be placed on the City Commission agenda. This specific power granted to the Commissioners should be applied over the general "catch-all" continuance of Section 2-33(k) in the event a City Commissioner requests that an item be placed on an agenda. For the foregoing reasons, we respectfully request that PZ.6 from the October 12, 2017, City Commission agenda be placed on the October 26, 2017, agenda pursuant to the requirements of Miami 21 and the City Code. Sincerely, Iris Iris V. Escarra Shareholder Greenberg Traurig, P.A. 1333 S.E. 2nd Avenue I Miami, FL 33131 Tel 305.579.0737 I Fax 305.961.5737 Escarral®gtlaw.com I www.$tlaw.com 4 13 GreenbergTraurig Submitted into the public record f r iteip(s) on lb I b l l'1 . City Clerk If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com, and do not use or disseminate such information. 5 MIAMI 21 AS ADOPTED - MAY 2017 Submitted into the public record for ite (s) 7.• A j on )d Tip . City Clerk ARTICLE 7. PROCEDURES AND NONCONFORMITIES ning, 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 or 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 or 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 and 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 Submitted into the public record f_ r ite (s) can \1).City Clerk MIAMI 21 ARTICLE 7. PROCEDURES AND NONCONFORMITIES AS ADOPTED - MAY 2017 Code. i. To hear appeals from the Planning and Zoning Appeals Board in connection with decisions on a Variance or Exception, or any appeals of any administrative decision on a Waiver or Warrant application, or any other administrative decision or determination made in connection with a proposed Affordable Housing Development qualifying under Section 3.15. Such appeals 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. 7.1.2 Permits The permits that may be necessary to develop property under the Miami 21 Code include the follow- ing: Warrant; Waiver; Exception; Variance; and amendment to the Code (including text amendments, rezoning and Special Area Plans). The permits are illustrated in Article 7, Diagram 14. In addition, certain approvals may be necessary to confirm that uses are permitted uses under the Code, which are zoning approval (by right), certificate of use, planning determination, or zoning interpretation. Permits issued in error shall convey no rights to any party. The Zoning Administrator shall require corrections to be made unless construction has commenced on that portion of the construction that was permitted in error. 7.1.2.1 Permitted Uses A building permit for those permitted Uses as set forth in Article 4, Table 3 of this Code shall be ap- proved By Right when the Use meets all of the applicable standards of the Miami 21 Code, and the other specific requirements that may be enumerated elsewhere in the City Code. a. Zoning approval A building permit shall be issued only after a zoning approval from the Zoning Administrator has been obtained indicating that the application meets the applicable provisions of the Miami 21 Code. Upon an affirmative finding by the Zoning Administrator that plans and application submitted are complete and in compliance with the applicable requirements of the Miami 21 Code, an approval shall be entered on the application and on the applicable building permit and, if othenNise lawful, the permit shall be issued to the applicant, together with one copy of the approved plan. If the application and plan are not in full in compliance with the requirements of the Miami 21 Code, the application shall not be approved and the applicant notified in writing of the reasons for such decision, with citation to the legal authority for any denial of a permit. b. Certificate of Use 1. For new or altered Structures and Uses. No person shall Use or permit the Use of any Structure or premises hereafter created, erected, changed, converted, enlarged or moved, wholly or partly, in Use or in Structure, until a Certificate of Use reflecting Use, extent, location, and other matters related to Miami 21 Code shall have been issued to the owner or tenant. Application shall be made to the Zoning Administrator on forms provided therefore. The Zoning Administrator shall issue the Certificate of Use (or to approve its issuance where final responsibility for issuance lies with other officers or agencies) if he finds that all the requirements of this Miami 21 Code have VII.15 Miami, FL Code of Ordinances Sec. 2-33. - Order of business and rules of procedure. Page 1 of 5 Submitted into the publicA. record foritel (s) Li 1 on 1( � 19 . City Clerk (a) The rules and regulations regarding the procedure of the city commission at all regular meetings are hereby established and adopted. (b) The first order of business shall be the approval of the minutes of the previous meeting. A copy of said minutes shall be distributed to the mayor and each of the commissioners prior to the meeting to enable the mayor and each commissioner to review the contents thereof. (c) After approval of the minutes of the previous meeting(s), all business that shall come before the city commission shall be taken up in the order as such items of business appear on the city commission agenda in accordance with the following provisions: (1) (2) (3) The agenda shall be prepared by the city manager in an appropriate form approved, from time to time, by the city commission. Matters may be placed on the agenda by the mayor, any member of the city commission, the city manager, the city attorney, the city clerk, and a city board as created by resolution of the city commission or as defined in section 2-882 of this Code. Any member of the public shall be entitled to speak on any proposition before the city commission in which the city commission may take any action through the presiding officer. Members of the public shall be limited to the time limitations specified in subsection 2-33(i) of the City Code. The opportunity to be heard need not occur at the same meeting at which the city commission takes official action on the proposition, if the opportunity occurs at a meeting that is during the decision making process and is within reasonable proximity in time before the meeting at which the city commission takes official action. This does not prohibit the city commission from maintaining orderly conduct or proper decorum in a public meeting. The requirements of subsection (c)(2) shall not apply to: a. An official act that must be taken to deal with an emergency situation affecting the public health, welfare, or safety, if compliance with the above requirements would cause an unreasonable delay in the ability of the city commission to act, and b. A ministerial act, including but not limited to, approval of minutes and ceremonial proclamations. about:blank 10/25/2017 Miami, FL Code of Ordinances Submitted into the pub record f, r itenj(s Y/ l.� Page 2 of 5 on 10 Z 6 ClCity Cleric (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 member 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 10/25/2017 Miami, FL Code of Ordinances Submitted into the pub11 record f r itel (s) Y1, i 1 1 _ Page 3 of 5 on io 1(1,, (1`1 . City Clerk Any vote of the city commission pertaining to the establishment of a rescue mission, the continuation of a rescue mission, or action relating to a rescue mission in the city that arises pursuant to the zoning ordinance or comprehensive plan requires the concurrence of four affirmative votes. (d) A copy of requests, petitions and applications shall be placed before the mayor and each member of the city commission, supported by administrative memoranda and such information as may be necessary to enable the city commission to reach a decision. All such requests, petitions and applications, except in cases of extreme emergency, shall be in the hands of the city manager for a period of at least 21 days prior to a regular meeting, to enable the administration to prepare necessary memoranda, data or reports. (e) A copy of each agenda item including each resolution and ordinance and all attachments and back-up material shall be furnished to the mayor and members of the city commission at least five full business days before each regular city commission meeting with the exception of veto items. This rule shall be deemed suspended unless invoked by a commissioner before the commission takes action on the resolution or ordinance in question. Once the rule is invoked no action can be taken on the resolution or ordinance unless the rule is suspended by unanimous vote of the commissioners present. Nonscheduled ("pocket") items may be introduced for consideration at a city commission meeting by the mayor, each commissioner, the city manager and the city attorney provided that the city commission unanimously deems such resolution or ordinance to be of an emergency nature. (f) Consistent with the time frame requirements set forth in subsection 2-33(e) above, the following shall be posted on the internet: (1) The city commission agenda simultaneous with it's distribution; (2) The supplemental agenda and any information related to the upcoming agenda simultaneous with its distribution; and (3) The city clerk's report and annotations to the agenda immediately after its release by the city clerk subsequent to the city commission meeting to which it applies. (g) All notices of all intentions to ask questions, together with a copy of such questions, shall be given to the city manager five days before each regular meeting. In all questions of policy presented to the city commission by the mayor, the the city manager or any departmental head, notice thereof, together with a copy of questions about:blank 10/25/2017 Miami, FL Code of Ordinances Submitted into the public record f ite i s P 1_, Page 4 of 5 on 113 Z, b 1' . City Clerk 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) All 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. 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. 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. (k) 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 Miami, FL Code of Ordinances Submitted into the public record fo� itei s) 1, \ I) on City Clerk Page 5 of 5 If the engagement of an executive director, regardless of title, of any board as defined in section 2-882 of this chapter, is required to be approved, ratified, or confirmed by the city commission, prior to such approval, ratification or confirmation, the individual engaged by a board shall make every reasonable attempt to meet with each member of the city commission. The city clerk shall assure that such meetings between the individual and the members of the city commission have been scheduled prior to the meeting at which the city commission is to consider the ratification. (Code 1967, § 2-9; Ord. No. 8857, § 1, 9-28-78; Ord. No. 11114, § 1, 1-13-94; Ord. No. 11120, § 1, 2-17-94; Code 1980, § 2-13; Ord. No. 11293, § 2(2-13), 9-14-95; Ord. No. 11532, § 2, 7-24-97; Ord. No. 11564, § 4, 10-28-97; Ord. No. 11642, § 2, 4-14-98; Ord. No. 11654, § 2, 5-12-98; Ord. No. 11723, § 1, 11-17-98; Ord. No. 11724, § 1, 11-17-98; Ord. No. 11786, § 1, 4-27-99; Ord. No. 11865, § 2, 11-14-99; Ord. No. 11942, § 1, 7-20-00; Ord. No. 12074, § 2, 5-24-01; Ord. No. 12134, § 1, 10-11- 01; Ord. No. 12310, § 1, 12-12-02; Ord. No. 12352, § 1, 4-10-03; Ord. No. 12409, § 1, 9-25-03; Ord. No. 12498, § 1, 2-26-04; Ord. No. 12586, § 1, 9-9-04; Ord. No. 13182, § 1, 6-10-10; Ord. No. 13438, § 2, 3-13-14) Editor's note- Ord. No. 12498, § 1, adopted February 26, 2004, enacted provisions intended for use as subsection (c)(7). Inasmuch as there are already provisions so designated, and at the discretion of the editor, said provisions have been redesignated as subsection (c)(8). Charter reference- Authority of commission to determine its own rules of procedure, § 4(e). Editor's note- Ord. No. 12352, § 1, adopted April 10, 2003, enacted provisions intended for use as subsection (m). Inasmuch as there are already provisions so designated, and at the discretion of the editor, said provisions have been redesignated as subsection (n). about:blank 10/25/2017 City of Jacksonville v. Huffman, 764 So.2d 695 (2000) 25 Fla. L. Weekly D1392 764 So.2d 695 District Court of Appeal of Florida, First District. The CITY OF JACKSONVILLE, Petitioner, v. John and Noreen HUFFMAN, Virginia Greenland, and Anthony Salvatore, Respondents. No. 1D99-3547• June 8, 2000. After city council passed resolution permitting construction in a historic district, the Circuit Court granted petition for writ of certiorari filed by complainants and quashed resolution. City petitioned for writ of certiorari. The District Court of Appeal, Ervin, J., held that: (1) finding that complainants were not provided requisite notice of initial public hearing before Historic Preservation Commission could not provide the sole basis for quashing city council's decision, and (2) trial court's order was internally inconsistent. Petition granted, circuit court's order quashed, and case remanded. West Headnotes (2) 111 Zoning and Planning Notice Finding that complainants were denied procedural due process because they were not provided requisite notice of initial public hearing before Historic Preservation Commission could not provide the sole basis for quashing decision of city council permitting construction in historic district, as complainants were provided a full 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. Cases that cite this headnote Submitted into the public record f r ite (s) on -1-. City C erk [2] Zoning and Planning Procedure in general;timeliness Although strict compliance with statutory notice requirements for appeals before land use and zoning committee 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 present his or her objections, and 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. Cases that cite this headnote Attorneys and Law Firms *695 Richard A. Mullaney, General Counsel, Karl J. Sanders, Assistant General Counsel, City of Jacksonville, for Petitioner. *696 Brenna M. Durden of Lewis, Longman & Walker, P.A., Jacksonville, for Respondents. Opinion ERVIN, J. The City of Jacksonville files this petition for writ of certiorari, challenging an order that quashed a resolution by the Jacksonville City Council permitting construction of a medical office building on three vacant lots in a historic district in Jacksonville. Respondents, John and Noreen Huffman, Virginia Greenland and Anthony Salvatore (hereinafter, the complainants), all live in the immediate vicinity of the property. We conclude that the circuit court departed from the essential requirements of law, because it ruled on issues that neither party raised, and because its order is internally inconsistent. In the proceeding below, Greenland and Salvatore claimed they received inadequate notice of the initial hearing on the building application before the Jacksonville Historic Preservation Commission. The Huffmans claimed they received inadequate notice of Greenland and Salvatore's subsequent appeal of the Commission's approval of the application before the Land Use and WESTLAW © 2G17 Thomson Reuters. i-J.; to < , ;;a �. G v -; City of Jacksonville v. Huffman, 764 So.2d 695 (2000) 25 Fla. L. Weekly D1392 Planning Committee. The circuit court granted the petition for writ of certiorari filed by the Huffmans, 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 learned 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 Huffmans 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 Huffmans learned of the hearing five days before it took place. DI 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 full 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. al 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 law, because the City did not comply with the notice provision of section 307.204. 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 Submitted into the public..1 record fo ite s) v1. ` , J on \nz 1 . City Clerk court, however, made no additional findings as to whether the complainants were prejudiced by the inadequate notice. Although strict compliance with statutory 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 Malley v. Clay County Zoning Comm'n, 225 So.2d 555 (Fla. 1st DCA 1969); Schumacher v. Town of Jupiter, 643 So.2d 8 (Fla. 4th DCA 1994). The lower court's only statements regarding 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 date," 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 City'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. WESTLAW © 2017 i ;prison R LO..ef c.: , f;; City nfJacksonville v.Huffman, 704Sp.2d08s(2VVO 25 Fla. L. Weekly D1392 All Citations VAN N{)RTWlCKand BROWNING, lJ,CONCUR. Submitted into the public 69 . ty Clerk End mDocument @zn1rThomson Reuters. moclaim moriginal u.S.Government Works. VVESTLAVV @2U17Thnmso/���c�s,a�H"oa/.n�o!J�a���3��op+nnm/iYYc.�c 2 Schumacher v. Town of Jupiter, 643 So.2d 8 (1994) Submitted into the public record f r ite� s) on kill 1� City Clerk 19 Fla. L. Weekly D1779 643 So.2d 8 District Court of Appeal of Florida, Fourth District. Richard E. SCHUMACHER, Appellant, v. TOWN OF JUPITER, a municipal corporation, Appellee. No. 93-1527. Aug. 24, 1994. Rehearing Denied Oct. 27,1994. Property owner brought action against town challenging amendment to zoning ordinance which excluded automobile dealerships. The Circuit Court, Palm Beach County, John D. Wessel, J., entered judgment in favor of town. Property owner appealed. The District Court of Appeal held that: (1) property owner failed to establish that town acted arbitrarily and capriciously in amending ordinance, and (2) property owner waived statutory notice requirements. Affirmed. West Headnotes (3) [1] Zoning and Planning Automobile -related uses;service, sales, parking Property owner failed to establish that town acted arbitrarily and capriciously in amending zoning ordinance to exclude automobile dealerships. Cases that cite this headnote [2] Zoning and Planning Sufficiency of notice or publication Property owner waived statutory notice requirements for amendment to zoning ordinance excluding automobile dealerships, where property owner, through counsel, had substantial and continuous knowledge of pending proceedings and appeared at final hearing on proposed ordinance and expressed his objections. Cases that cite this headnote [3] Zoning and Planning Sufficiency of notice or publication While strict compliance with statutory notice requirements is mandatory and jurisdictional, contesting landowner may waive right, or be estopped, to assert defect in notice if landowner appeared at hearing and was able to fully and adequately present any objections to ordinance; if, however, notice is so lacking that landowner was unable to fully prepare for hearing to voice objection, or where landowner can otherwise demonstrate prejudice, then courts will refuse to find waiver or estoppel. 4 Cases that cite this headnote Attorneys and Law Firms *9 John Beranek of Aurell Radey Hinkle Thomas & Beranek, Tallahassee, and J. Michael Burman of Slawson, Burman & Critton, North Palm Beach, for appellant. Thomas J. Baird of Watterson Hyland Baird & Klett, P.A., Palm Beach Gardens, and Nancy E. Stroud of Burke, Bosselman & Weaver, Boca Raton, for appellee. Opinion PER CURIAM. f We affirm, finding no error by the trial court in holding that Jupiter did not act arbitrarily or capriciously in amending a zoning ordinance and that appellant had waived any defect in the notice provided to him of the proceedings during which the change was effected. As to the validity of the zoning scheme excluding automobile dealerships itself we rest our decision on the discussion and analysis in Restigouche, Inc. v. Town of Jupiter, 845 F.Supp. 1540 (S.D.Fla.1993). In that case the same zoning scheme involved herein was challenged and "iESrL.AV © 2017 Thomson Reuters. No claim to original .S. Government Works. 1 ti Schumacher v. Town of Jupiter, 643 So.2d 8 (1994) Submitted into the public record fo ite (s) V1,0 on U I•l Ei 1'1 . City Clerk 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 (11th Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994). Lzl 1� On the notice issue, appellant claims error in the trial court's finding that he waived the notice requirements by his extensive knowledge of and actual attendance and participation in the relevant proceedings. The general rule is that, while strict compliance with statutory 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 Comm'n, 225 So.2d 555, 557 (Fla. 1st 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. Id. 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 Malley 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 8, 19 Fla. L. Weekly D1779 End of Document © 2017 Thomson Reuters. No claim to original U.S. Govemment Works. WESTLAW © 2017 Thoms.ri R. '.e s. Ni 2irn ; ri over, ,m3:,