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HomeMy WebLinkAboutSubmittal-Iris Escarra-Request to dismiss the Appeal of HEPB Designation ReportGT GreenbergTraurig April 4, 2025 Via Email Honorable Chairwoman and Commissioners City of Miami Commission 3500 Pan American Drive Miami, FL 33133 Submitted into the public record for item(s) PZ.1 on 04/10/2025 . City Clerk Iris V. Escarra Tel 305.579.0737 Fax 305.579.0717 escarrai@gtlaw.com Re: Request to Dismiss the Appeal of Historic and Environmental Preservation Board's Designation Report Amendment for the Property Located at 609 Brickell Avenue, Miami, Florida (Folio No. 01-0210-030-1010) / First Presbyterian Church / Resolution No. HEPB-R-24-032 Dear Honorable Chair and Commissioners: We represent First Presbyterian Church and 13th Floor Key Church, LLC (collectively, the "Applicant") in connection with the Historic Designation Report amendment approved by the City of Miami's (the "City") Historic and Environmental Preservation Board ("HEP Board") for the property located at 609 Brickell Avenue, Miami, Florida (the "Property") in Resolution No. HEPB-R-24-032 (the "Resolution"), attached as Exhibit 1. As set forth herein, well -established Florida law and the applicable HEP Board Rules of Procedure align to necessitate the dismissal or summary denial of the appeal of the Resolution filed by appellant Iconbrickell Condominium No. Two Association, Inc. (the "Association"), attached as Exhibit 2. A decision to grant the relief requested in the appeal would constitute a departure from the essential requirements of law. BACKGROUND On December 3, 2024, the HEP Board approved an amendment to the Historic Designation Report for the First Presbyterian Church historic resource at the Property. The amendment clarified that only the original church building a structure dating back to 1949 and widely recognized as an outstanding example of postwar Mediterranean Revival architecture meets the City's criteria for historic designation. As such, the School Annex and surface parking lot on the Property were reclassified as non-contributing and removed from the Historic Designation Report. This approval was the result of an exhaustive process that included in depth review from City staff, expert reports, and two public hearings. At these two hearings, the Applicant presented a detailed case supported by preservation and design professionals and offered multiple proffers to ensure the continued protection of the historic church building. City staff agreed with the Applicant's position and confirmed that the School Annex and parking lot lacked architectural or Greenberg Traurig, P.A. I Attorneys at Law 333 Southeast Second Avenue I Suite 4400 I Miami, FL 33131 I T +1 305.579.0500 I F +1 305.579.0717 ACTIVE 709414320v1 17249 Submittal -Iris Escarra-Request to dismiss the Appeal of HEPB Designation Report www.gtlaw.com Honorable Chairwoman and Commissioners 609 Brickell Ave Appeal of HEPB-R-24-032 April 4, 2025 Submitted into the public record for item(s) PZ.1 on 04/10/2025 . City Clerk artistic significance and did not meet the legal threshold for designation under the City Code. The HEP Board's decision was carefully considered based on the criteria set forth in the City Code, including the specific limitations on designating religious properties. During the public comment period of the December 3, 2024 hearing, an individual named Alan Barson introduced himself as a resident of Icon Brickell Tower II. Mr. Barson claimed to be a representative of the Association. Mr. Barson did not register as a lobbyist as required by Chapter 2, Article VI of the Code, is not listed as an officer of the Association, nor did he provide any documentation evidencing his authority to act on behalf of the Association.' After hearing the request for intervenor status, and being counseled on the applicable law, the HEP Board denied Mr. Barson's request. The record in this case is clear: the Association had notice, had opportunity to participate, and made no presentation at the hearing. Nevertheless, on February 5, 2025, the Association submitted an appeal letter to the City challenging the HEP Board's denial of intervenor status. Mr. Barson did not appeal the HEP Board's decision even though he was the only person who requested (and was denied) intervenor status at the hearing. MEMORANDUM OF LAW I. The appeal should be dismissed because the Association did not request intervenor status at the HEP Board hearing. The Association cannot appeal the HEP Board's decision to deny Mr. Barson's request for intervenor status. The HEP Board's Rules of Procedure are unequivocal: only a party who both opposed and presented testimony before the HEP Board may appeal its decision. The Association did neither. Section VII(H) of the HEP Board Rules of Procedure states: A decision of the [HEP] Board may be appealed by any aggrieved party who opposed and presented testimony on the item before the [HEP] Board." (emphasis added) The Association did not request intervenor status at the hearing, did not submit any written objection, and presented no testimony regarding its eligibility for intervenor status.' To allow this appeal to proceed under such circumstances would constitute a direct and unlawful departure from the essential requirements of law. As the City is bound by its procedural requirements this appeal 1 At the hearing, James Palacio, who introduced himself as the Association's general manager and is not an officer of the Association, stated that Mr. Barson was speaking "on behalf of the Association." However, no documentation was submitted to support this claim. 2 While Mr. Aaron Brill, an officer of the Association, presented an objection to the application at the hearing during public comment, he did not request intervenor status on the Association's behalf, and likewise did not produce any evidence of authority to act on behalf of the Association. Greenberg Traurig, P.A. I Attorneys at Law www.gtlaw.com 2 ACTIVE 709414320v1 Honorable Chairwoman and Commissioners 609 Brickell Ave Appeal of HEPB-R-24-032 April 4, 2025 Submitted into the public record for item(s) PZ.1 on 04/10/2025 . City Clerk should be dismissed. See Gulf & E. Dev. Corp. v. City of Fort Lauderdale, 354 So. 2d 57, 61 (Fla. 1978). Moreover, Section 23-4(c)(7)(a) limits the ability to appeal to an "aggrieved party that has standing under Florida law." Florida law clearly establishes that "a non-party in the lower tribunal is a `stranger to the record' and, therefore, lacks standing to appeal an order entered by the lower tribunal." Edwards v. CIT Bank, N.A., 306 So. 3d 217, 219 (Fla. 3d DCA 2020) (collecting authorities). In City of St. Petersburg v. St. Petersburg Yacht Club, 352 So. 2d 119 (Fla. 2d DCA 1977), the court held that "[i]t is fundamental that a party litigant must object in an administrative hearing to properly under law perfect the right of appeal to a higher administrative tribunal" and that "consideration of an appeal without an objection being lodged before the initial administrative body constitutes a departure from the essential and fundamental requirements of law." Id. at 120. This holding controls here as the Association had every opportunity to appear (and in fact had an officer in attendance), object, request intervenor status and create a record. It failed to do so. That failure is not a technicality it is fatal. Although Mr. Alan Barson appeared at the HEP Board hearing and claimed to speak on behalf of the Association, he failed to provide any documentation showing that he was authorized to do so. He did not file a corporate resolution, a written authorization, or even provide confirmation that he was acting in a representative capacity. As a result, his appearance was personal. And under Florida law, an individual cannot confer standing on an association. United States Steel Corp. v. Save Sand Key, Inc., 303 So. 2d 9 (Fla. 1974); Hemisphere Equity Realty Corp. v. Key Biscayne Property Taxpayer's Association, Inc., 369 So. 2d 996 (Fla. 3d DCA 1979). To be certain, a condominium association created under Florida law can only act in accordance with its governing documents, which include the Declaration of Condominium, Articles of Incorporation, and Bylaws. § 718.111, Fla. Stat; see also § 718.111(1)(c) ("A unit owner does not have any authority to act for the association by reason of being a unit owner."). The Association, therefore, did not present testimony before HEP Board and cannot now appeal. CONCLUSION Hearing this appeal would violate the procedural and legal requirements that govern appeals from the HEP Board. The Association did not request intervenor status, did not present any testimony, and offered no evidence of standing to appeal. Mr. Barson's personal appearance cannot cure those defects, nor can it be imputed to the Association absent proof of authority which was never provided. The Association had notice, chose not to participate properly, and now seeks to reverse -engineer an appeal it has no legal right to pursue. Greenberg Traurig, P.A. I Attorneys at Law www.gtlaw.com 3 ACTIVE 709414320v1 Honorable Chairwoman and Commissioners 609 Brickell Ave Appeal of HEPB-R-24-032 April 4, 2025 Submitted into the public record for item(s) PZ.1 on 04/10/2025 . City Clerk Allowing this appeal to proceed would violate the City's own rules and infringe on the Applicant's due process rights. As such, this appeal must be dismissed. Applicant reserves the right to raise additional arguments and caselaw establishing why the substance of the appeal is legally deficient and must be denied. Iris V. Escarra cc: Mr. George K. Wysong, III, City Attorney Mr. John K. Shubin Greenberg Traurig, P.A. I Attorneys at Law www.gtlaw.com 4 ACTIVE 709414320v1