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Home My WebLink AboutAppeal Letter to City CommissionW. TUCKER G1BBS, P.A. ATTORNEY AT LAW P.O. BOX1050 COCONUT GROVE FL 33133 TELEPHONE (305) 448-8486 FACSIMILE (305) 448-0773 tucker@wtgibbs,cam pr(71V O r`! hs11,.U"..., ,.7T),1!f'nl r 13 OCT 29 P1112: L;. October 29, 2013 VIA HAND DELIVERY Anel Rodriguez, Executive Secretary Hearing Boards Division City of Miami Planning Department 444 S.W. 2d Avenue, Third Floor Miami, Florida 33130 Re: Appeal of PZAB Decision to Grant Appeal and Deny Warrant No. 13-0033 Dear Mr. Rodriguez: I represent Agave Acquisitions, which sought and obtained Warrant No. 13-0033 (attached as Exhibit "A")to allow outdoor seating on its property at 2601 South Bayshore Drive within the T-6 transect. The adjoining property owner, the Grovenor House Condominium Association, also located in the T-6 transect, filed an appeal of the warrant on July 5, 2013(attached as Exhibit 'B"). On October 16, 2013 the City of Miami Planning and Zoning Advisory Board ("PZAB") voted to grant that appeal and deny the warrant (attached as Exhibit "C"). Through this letter Agave Acquisition hereby appeals the decision of the PZAB to grant the appeal and to deny the warrant notice of appeal pursuant to Article 7, section 7.1.2.4 of the Miami 21 zoning code. The grounds for this appeal are as follows: 1. The PZAB failed to correctly apply the review criteria set forth in Article 7, section 7.1.2.4(d) of Miami 21 when it determined that the planning director failed to apply those standards when he issued the warrant. According to Article 7, section 7.1.2.4(d) the planning director when he evaluated the application for the warrant shall review the warrant application for compliance with the October 22, 2013 Page 2 Miami 21 zoning code. This review requires that the director consider the intent of the transect, the "guiding principles" of Miami 21, and the manner in which the proposed use will operate in relation to any "less intense uses." Furthermore, the director shall apply the design review criteria in Article 4, Table 12 "as applicable." Intent of the Transect: Section 6.3.2 of Miami 21 clearly states that outdoor seating is permitted by warrant in the T-6 transect. The T-6 transect includes the highest density and the greatest variety of uses permitted under Miami 21. Uses include entertainment establishments, restaurants and general commercial. There is no provision in Miami 21 that states that an outdoor cafe is an inappropriate use in the T-6 transect. Guiding Principles of Miami 21: Among the concepts that define Miami 21 are the importance of mixed -use development in the T-4 through T-6 transects and the importance of pedestrian -friendly development in virtually all transects. Outdoor dining in the T-6 transect is a peLluitted use by warrant that furthers these guiding principles of Miami 21. Manner of Operation of the Proposed Use: Outdoor dining and other uses in the T-6 transect must respect their neighbors. And the proposed cafe is designed to provide such protections. The cafe is situated as far from the adjoining high-rise condominium as possible. The closest residential unit is over 100 feet from the closest portion of the proposed outdoor seating area. There is a lush buffer of planting along both sides of the property line between the Agave property and the adjacent condominium. There will be no amplified music in the cafe. In addition to the protections provided by the owner of the property, the city's noise ordinance prohibits "plainly audible" noise or music at a distance of 100 feet and no music between the hours of 11 p.m. and 7 a.m. Therefore, the PZAB failed to apply correctly the warrant review standards set forth in Article 7 and its denial of the warrant should be rejected by the city commission. October 22, 2013 Page 3 2. When the PZAB made its decision it failed to rely on the only competent substantial evidence in the record: the city's professional staff report and recommendation (attached as Exhibit "D"). Florida law requires that all decisions of a quasi- judicial board or commission be supported by competent substantial evidence. Additionally, Florida law recognizes a city's professional staff report as competent substantial evidence. Therefore, in the absence of any contrary competent substantial evidence, the board must base its decision on the city's professional staff's evaluation and recommendation as presented in the staff report. The PZAB failed to do this when it granted the appeal and denied the warrant. Therefore, appellant. Agave Acquisitions through its undersigned attorney, appeals the decision of the City of Miami Planning and Zoning Appeals Board that denied the approval of Warrant No. 13-0033. Furthermore, appellant Agave Acquisitions reserves its right to supplement this appeal letter with briefs or memoranda prior to city commission consideration of this appeal. Sincerely, )'Vithl/3 W. Tucker bbs enclosures cc: Brian Gitlin Francisco Garcia, Planning Director Victoria Mendez, City Attorney Todd B. Hannon, City Clerk mote 1A •.< e; .,:.;.., , A., ). ,,;•:,:,- \ tr.-4, .... , i„, jr: ,--, e7 .11::,"4.7 j.4....,c."-';'' '''';'":::4(:;:i.r.e71.!....44-7/-1.-. , e:V.-. , 1.3 .1,,E, 6 ----') ,,. 2.-.. 't- qb4s ::;i 1- i 5iilit'A ' ''.7--iebiir0,.pays$re Dri '? 1 Miami, Ft 33.131 1 0 r ,A i i. 'Ac ErtlanQisco1 Jr , (011a-%••rci: ar-_4/a)..p..ir)a ectmt. oer , .\:yPlanning 4Z11 I\'#i-n—t --- ,---..„--=, ' PLEAS4E-T TICE. 'AT `,F;1 ALIDECIS ON HAS BEEN REACHED ON THE FOLLOWING MA'rTR.:, . ---ti- - ...V.- %,.:.-------'-'': Address; - - Final Decision: Outdoor Seating (Outdoor Cafe) 2601 S Bayshore Dr., NE Coconut Grove Re No.13.0033 RE Approval D Approval with conditions D Denial FENDINGS AND tONDITIONS The subject proposal has been reviewed for 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 requirod for'outdoor dining area and the display and sale of items from vending carts. Pursuant to. Section-7:1.3.4 of the above -cited Zoning Ordinance; the Planning DepartMbnthas made referrals to the following Departments and Boards • Office of Zoning • NE Coconut Grove NET Office, Neighborhood Enhancement Team Their comments and recommendations have been duly considered during the review of 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.: fiI Jo. 13-0033 FINDINGS • Applicant is proposing an outdoor seating area for an outdoor care, • The proposed outdoor dining area consists of 31 tables with 72 seats. • The proposed location for the outdoor dining area will be on the southwest side. of the property within private property. • The proposed outdoor dining area has been designed effectively not to disrupt the safe flow of pedestrians on the pedestrian walkway. • The proposed planters ard furniture shall be removable and capable of being stored saie and secure in the event of severe weather conditions, • Pursuant to Sec. 7.1.2.4 (d) of the Miami 21 Code, the City of filarni Zoninn Ordinance, the application has been revlewed and found sufficient, Based on the_abovefindings and the considered advice of the officers and agencies consulted on this matter and pursuant to SoctIon 7.1.1.2 of the Miami 21 Code, the subject application is ... _hereby approved-subjeato the piens-and supplementary materials submitted-by-the-applicarkon-- file with the of Planning Department. NOT10E final decision -of -the Director- may be,appealed to4he Planning; ZonIngr and Appeals Board by,arty,aggrieve,d_1artin.fifteentin.days.,of_the_date of_Issuance byStinga written appeal and app zpriate fe with the Office of Hearing Boards, located at 444 SW 2nd Ave., 3rd Floor, Mien • EL 33130.7feiephone number (305) 416-2030 SIgnature Francisco Garcia, Director Planning oning Department . Data A$11s8 ir • SH_A.RI WALD GARRET utitrrre t:u.l-i.1\\rc3'n Via Hand Deli err' NN • SL A W C 0 M July 5, 2013 SRHI REPLY TO CORAL GABLES OFFICE City of Miami. Planning and Zoning Department r- Planning and Zoning Appeals Board • z Attn: Francisco J. Garcia, Director = - m, Office of Hearing Boards I CI fno : t:0 rn 444 SW 2" Avenue, 3rd Floor Miami., Florida 33130 = yrn if RE: 2601 S. BAYSHORE DRIVE, NORTHEAST COCONUT GROVE tv rn APPLICANT: AGAVE ACQUISITIONS GROVENOR HOUSE CONDOMINIUM ASSOCIATION, INC WARR4NT APPEAL -WARRANT NO.: 2013-0033 Dear Mr. Garcia, The undersigned represents the interests of Grovenor House Condominium Association, Inc. (hereinafter `Grovenor House"). Grovenor house is located at 2627 South Bayshore Drive, Miami, Florida 33133. Grovenor House is an abutting property owner. This communication serves as Grovenor House's written appeal to the Hearing Board advising that it objects to the subject Warrant (a copy of which is attached) based upon the following grounds: • The outdoor dining area will result in excessive noise to neighboring owners; • The outdoor dining area will result in a nuisance, including but not limited to noise, which will interfere with neighboring, owners' peaceful possession of their property; • The outdoor dining area will create increased pedestrian traffic to the detriment of neitgh.borin.g property owners. 201 Alhambra Circle Eleventh Floor Coral Gables, Florida 33134 Miami -Dade: 305.442.3334 Fax; 305.443.3292 Toil Free: 800.737,1390 Francisco J. Garcia, Director July 5, 2013 Page 2 Accordingly, Grovenor House requests that the Hearing Board reevaluate the subject Warrant, in light of the above objections. Should you have any further questions, please contact the undersigned.. Very truly yours. SI.EGFRIED, RIVERA, HYMAN, LERNER DE LA TORRE, MARS & SOBEL, P.A. SHARI WALD GARRETT, ESQ. For the firm Enclosures Et:11.113R ARY\.CASES;.7 t 16%2130802\2 T117514.DOCX E=iie No.13-0033 Agave Properties.:: . clo W Tucker Gibbs 2601 S Bayshore Dr. Miami, FL 33133 From: ;:Francisco J: Garca, Director Planning 4 Zoning Department PLEASE TAKE NOTICE THAT A FINAL DECISION HAS BEEN REACHED ON THE FOLLOWING MATTER: Title: Outdoor Seating (Outdoor Cafe) Address: Final Decision: 2601 S Bayshore Dr., NE Coconut Grove ® Approval ❑ Approval with conditions D Denial FINDINGS AND CONDITIONS The subject proposal has been reviewed for 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 area and the display and sale of items from vending carts. Pursuant to Section 7.1.3.4 of the above -cited Zoning Ordinance, the Planning Department has made referrals to the following Departments and Boards • Office of Zoning • NE Coconut Grove NET Office, Neighborhood Enhancement Team Their comments and recommendations have been duly considered during the review of 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: File No. 13-0033 FINDINGS • Applicant is proposing an outdoor seating area for an outdoor cafe. • The proposed outdoor dining area consists of 31 tables with 72 seats. • The proposed location for the outdoor dining area will be on the southwest side of the property within private property. The proposed outdoor dining area has been designed effectively not to disrupt the safe flow of pedestrians on the pedestrian walkway. • The proposed planters and furniture shall be removable and capable of being stored safe and secure in the event of severe weather conditions. • Pursuant to Sec. 7.1.2.4 (d) of the Miami 21 Code, the City of Miami Zoning Ordinance, the application has been reviewed and found sufficient. Based on the above findings and the considered advice of the officers and agencies consulted on this matter and pursuant to Section 7.1.1.2 of the Miami 21 Code, the subject application is hereby approved subject to the plans and supplementary materials submitted by the applicant on file with the of Planning Department. NOTICE The final decision of the Director may be appealed to the Planning, Zoning, and Appeals Board by any aggrieved ,:arty, within fifteen (15) days of the date of issuance by filing a written appeal and appriatefee with the Office of Hearing Boards, located at 444 SW tad Ave., 3rd Floor, Miami, FL 33135. Telephone number (305) 416-2030 Signature Franc scarcia, rector Planning' Zoning Department 2 Date 6-'�/-/3 emfloir 'Le Miami Planning, Zoning and Appeals Board Resolution: PZAB-R-13-056 File ID 13-00829wt October 16, 2013 Item PZAB.8 Mr. Chris Collins offered the following resolution and moved its adoption: A RESOLUTION OF THE MIAMI PLANNING, ZONING AND APPEALS BOARD GRANTING THE APPEAL, THEREBY DENYING THE WARRANT SPECIAL PERMIT APPLICATION NO. 13-0033, ISSUED BY THE PLANNING DIRECTOR ON JUNE 21, 2013, TO ALLOW AN OUTDOOR DINING AREA FOR AN OUTDOOR CAFE FOR THE PROPERTY LOCATED AT APPROXIMATELY 2601 SOUTH BAYSHORE DRIVE, MIAMI, FLORIDA, LEGALLY DESCRIBED IN ATTACHED "EXHIBITA". Upon being seconded by Ms. Jennifer Ocana. Barnes, the motion passed and was adopted by a vote of 7-0: Ms. Jennifer Ocana Barnes Yes Mr. Chris Collins Yes Ms. Maria Lievano-Cruz Yes Mr. Charles A. Garavaglia Yes Mr. Charles A. Gibson Absent Ms. Maria Beatriz Gutierrez Absent Mr. Ernest Martin Absent Mr. Daniel Milian Yes Mr. Juvenal Pina Absent Ms. Janice 1. Tarbert Yes Ms. Melody L. Torrens Yes Mr. David H, Young Absent Francisco Ga ia, Director Planning and Zoning Department STATE OF FLORIDA COUNTY OF MIAMI-DADE Personally appeared before me, the undersigned authority, Anel Rodriguez, Clerk of the Planning, Zoning and Appeals Board of the City of Miami, Florida, and acknowledges that he executed the foregoing Resolution. SWORN AND SUBSCRIBED BEFORE ME THIS i1� DAY OF (9 C , 2013. , VCR 3-5( ✓`',i i (uo � Print Notary Name Notary Pu lic State of Florida Personally know c< or Produced I.D. Type and number of I.D. produced Did take an oath or Did not take an oath r2C My Commission Expires: 1V?p' '��, VANESSA TRUJILLO u .*. MY COMMISSION # EE 105250 EXPIRES: July 11, 2015 Bonded Thru Notary Public Underwriters EXHIBIT "A" Legal Description Folio No.: 01-4122-031-0010 KRA Tower Office Condominium Unit 100, as described in the Declaration of KRA Tower Office Condominium recorded in Official Records Book 24557, Page 1364 of the Public Records of Miami - Dade County, Florida and as set forth in the Special Warranty Deed recorded in Official Records Book 27558, Page 2624 of the Public Records of Miami -Dade County, Florida. File ID: Title: Location: Appellant: Applicant: Purpose: Planning and Zoning Department Recommendation: Analysis: PZAB.8 PLANNING, ZONNG AND APPEALS BOARD FACT SHEET 13-00829wt Quasi -Judicial A RESOLUTION OF THE MIAMI PLANNING, ZONING AND APPEALS BOARD, WITH ATTACH(vMENT(S), DENYING OR GRANTING THE APPEAL, THEREBY APPROVING WITH CONDITIONS OR DENYING, THE WARRANT SPECIAL PERMIT APPLICATION NO. 13-0033, ISSUED BY THE PLANNING DIRECTOR ON JUNE 21, 2013, TO ALLOW AN OUTDOOR DINING AREA FOR AN OUTDOOR CAFE FOR THE PROPERTY LOCATED AT APPROXIMATELY 2601 SOUTH BAYSHORE DRIVE, MIAMI, FLORIDA. Approximately 2601 S Bayshore Drive [Commissioner Marc David Sarnoff - District 2] Marc Smiley, Esquire, on behalf of Stanley Barnett and Rudolph Roseborough (Grovenor House Condominium Association, Inc.), Adjacent Property Owners 201 Alhambra Circle, 11th Floor Coral Gables, FL 33134 (305)442-3334 Tucker Gibbs, Esquire, on behalf of Agave Acquisitions, LLC P.O. Box 1050 Miami, FL 33133 (305) 448-8446 The approval of this appeal will not allow an outdoor dining area for an outdoor cafe. Recommends approval of the Warrant and denial of the appeal. See supporting documentation. Planning, Zoning and Appeals Board: October 16, 2013 Arnair "Ph