Loading...
HomeMy WebLinkAboutSubmittal-Marc Burton-Objection to Item PZ 1rB1 THE BURTON FIRM 2875 N.E. 191 Street, Suite 403 Aventura, Florida 33180 P (305) 705-0888 theburtonfirm.com Sent via Email September 9, 2024 George K. Wysong, III City Attorney City of Miami 3500 Pan American Drive Miami, Florida 33133 GWysong@miamigov.com `submitted into the ublic nn record fpr item(s) V L,1. cA� y Lid l 4 City Clerk Re: Objection to Item PZ 1 on September 12, 2024 City Commission Agenda Dear Mr. Wysong: As you know, this law firm represents Steven Smith and several other plaintiffs in connection with the August 20, 2024 ballot referendum question regarding certain gym equipment that was installed and constructed at Maurice A. Ferre Park prior to the issuance of a final development order known as a "warrant." We write to register our objection to Item PZ 1 on the September 12, 2024 City Commission meeting agenda. This item purports to allow the City Commission to "reconsider" its final quasi-judicial decision upholding the determination of the Planning, Zoning, and Appeals Board ("PZAB") and reversing the Planning Director's issuance of Warrant No. PZ-23-16544 relating to the subject gym equipment project (the "Warrant"). We respectfully request that you disseminate this letter to Mayor Francis X. Suarez, Commission Chair Christine King, Commission Vice Chair Joe Carollo, Commissioner Miguel Angel Gabela, Commissioner Damian Pardo, Commissioner Manolo Reyes, City Clerk Todd B. Hannon, Planning Director David Snow, the Bayfront Park Management Trust, and any other appropriate persons in advance of the upcoming September 12, 2024 City Commission meeting. I. Background On September 7, 2023, the City's Planning Director approved the Warrant in consideration of the applicable review criteria of the Miami 21 Code. On September 22, 2023, Steven Smith filed a timely appeal to the PZAB requesting reversal of the Planning Director's decision to approve the Warrant. In September and October 2023, despite Mr. Smith's pending appeal, and despite lacking a final warrant for the construction and installation of the gym equipment project at Maurice A. Ferre Park, the Bayfront Park Management Trust proceeded with the project. THE BURTON FIRM • ATTORNEYS AT LAW Page 1 of 5 5.\\\001\-\-01- NI r),f L � ( ,_ ti C 1 \--t) \\;(;,1\A y-L.L On November 15, 2023, the PZAB upheld Mr. Smith's appeal and reversed the Planning Director's decision to issue the Warrant. The PZAB determined, among other things, that the gym equipment project failed to meet the design criteria standards described in Article 4, Table 12 of the Miami 21 Code, as well as the criteria set forth in Section 7.1.1.2 and Section 7.1.2.4 of the Miami 21 Code. The PZAB's decision was thereafter appealed to the City Commission. On May 23, 2024, the City Commission, following a quasi-judicial hearing in which all parties were afforded an opportunity to be heard, determined in a final written decision that there was competent, substantial evidence to uphold the PZAB's determination and reverse the Planning Director's issuance of the Warrant. Today, more than three months after the City Commission voted to uphold Mr. Smith's appeal and reverse the Planning Director's issuance of the Warrant, the Planning Department urges the City Commission to "reconsider" its final quasi-judicial decision from May 23, 2024. This request is procedurally defective and cannot stand. II. The Planning Department Lacks Standing to Request Reconsideration of the City Commission's Final Quasi -Judicial Decision to Uphold the Reversal of the Planning Director As an initial matter, the Planning Department lacks standing to request reconsideration of the City Commission's final quasi-judicial decision of May 23, 2024 to uphold the PZAB's reversal of the Planning Director's issuance of the Warrant. Section 7.1.2.4 of the Miami 21 Code provides that an initial warrant determination is made by the Planning Director. Section 7.1.2.4(e) of the Miami 21 Code thereafter provides that "[a]ppeal of the determination of the Planning Director shall be . . . taken to the Planning, Zoning and Appeals Board" which "shall determine whether the Warrant is upheld or rescinded", and that "[t]he ruling of the Planning, Zoning and Appeals Board may be further appealed to the City Commission ...." In turn, Section 7.1.2.4(e) of the Miami 21 Code provides that an appeal to the City Commission "may be filed only by the applicant or any person who is aggrieved by the action of the Planning, Zoning and Appeals Board." Thus, Item PZ 1 is defective because the request for reconsideration of the City Commission's decision is not made by the applicant or a person who is aggrieved by the action of the PZAB. Certainly, the Planning Department, as the body that issued the decision that was subject to direct appellate review by the PZAB, is not, and cannot be, aggrieved by the PZAB's decision. To hold otherwise would be to allow the Planning Department to seek reconsideration of any final decision of the PZAB or County Commission to reverse a decision of the Planning Director, throwing the entire quasi-judicial appellate process into disarray and making the Planning Director and Planning Department adversarial to any applicant who seeks to appeal a determination of the Planning Director. Submitted into the ppOlic rcccrd for it m(s) 1' / City Clerk THE BURTON FIRM • ATTORNEYS AT LAW Page 2 of 5 Submitted into the record for jtem(s) ou City Clerk III. The City Commission Lacks Jurisdiction to Reconsider Its Quasi - Judicial Determination Regarding the Warrant Even assuming, arguendo, that the Planning Department had any standing to seek to initiate reconsideration of the City Commission's May 23, 2024 quasi-judicial decision to affirm the PZAB's denial of the Warrant — which it does not — the City Commission still may not engage in any reconsideration of that decision because it lacks jurisdiction to do so. First, the City of Miami's rules for quasi-judicial procedures do not provide any opportunity for a "rehearing" or "reconsideration" of a quasi-judicial determination. See Section 7.1.4 of the Miami 21 Code, titled "Quasi -Judicial Procedures." Under the City's rules of procedure, the City Commission's vote on May 23, 2024 was a final decision that could only be appealed to the Circuit Court of the Eleventh Judicial Circuit within thirty (30) days of the decision. See Section 7.1.5(e) of the Miami 21 Code. Second, while the City Commission may possess an inherent power to re -open and reconsider its quasi-judicial actions, this power is limited because it expires once the opportunity to appeal the City Commission's decision has expired. This principle has been uniformly upheld by Florida courts. See Mills v. Laris Painting Co., 125 So. 2d 745, 747 (Fla. 1960) ("It has frequently been held that administrative agencies have inherent or implied power, comparable to that possessed by courts, to rehear or reopen a cause and reconsider its action or determination therein, where the proceeding is in essence a judicial one. It is also generally recognized that the power to rehear or reconsider must be exercised before an appeal from the original order of the administrative body has been lodged or before such order has become final by lapse of time without a timely appeal.") (internal quotations omitted); see also Smull v. Town of Jupiter, 854 So. 2d 780 (Fla. 4th DCA 2003) (holding that quasi-judicial determinations made by local governing bodies are subject to rules set forth in Mills); Reich v. Dept. of Health, 868 So. 2d 1275, 1276 (Fla. 1st DCA 2004) (holding that a request to vacate a quasi-judicial determination is untimely if it is filed after the time for a timely notice of appeal has expired). In the instant case, the opportunity to appeal the City Commission's quasi-judicial determination expired in June 2024. Accordingly, the City Commission's jurisdiction to reopen this quasi-judicial matter also expired in June 2024. There is no authority in the City Code or Florida jurisprudence that would allow the City Commission to reopen or reconsider a quasi-judicial matter more than two months after the opportunity to appeal the City Commission's decision has expired.' ' To the extent the City relies on Mason's Manual on Legislative Procedure ("Mason's Manual") to support its request for reconsideration, it is without merit. First, nowhere in the City Code does it provide that the City of Miami has adopted Mason's Manual's procedures as the City's own procedures in these matters, and therefore any reliance by the City of Miami on Mason's Manual is erroneous. In comparison, Article I, Section 2-1 of the Miami -Dade County Code provides, with respect to the "Rules of procedure of County Commission," that "[e]xcept as may be provided in the Charter, the code or by these rules, questions of order, the methods of organization and the conduct of business of the Commission shall be governed by the Mason's Manual of Legislative Procedure (1953 Edition)." Second, even assuming the City of Miami has adopted Mason's Manual in these circumstances, it applies only to legislative proceedings and does not provide rules of THE BURTON FIRM • ATTORNEYS AT LAW Page 3 of 5 giibfltt@d into the puoiiv record . t 1 ' (`) . n Ci Clerk on ty IV. Even If the City Commission Reconsidered Its Quasi -Judicial Determination Regarding the Warrant, The City Commission May Not Consider Evidence Not Introduced During the Original Hearing Even if the City Commission reconsidered its quasi-judicial determination regarding the Warrant — in direct violation of the City Code and Florida case law — the City Commission is prohibited from considering any evidence that was not introduced during the original quasi-judicial hearing. Section 7.1.2.4(e) of the Miami 21 Code provides that "[t]he ruling of the Planning, Zoning and Appeals Board may be . . . appealed to the City Commission, de novo." Accordingly, the City Commission's de novo determination must be based on the same criteria that was used in the Warrant determination on appeal. See Walgreen Co. v. Polk Cnty., 524 So. 2d 1119, 1120 (Fla. 2d DCA 1988). Moreover, under the City's rules of evidence for quasi-judicial proceedings, "supplementing the record after the quasi-judicial hearing is prohibited ..." See Section 7.1.4.6(j) of the Miami 21 Code. This rule may only be waived if, by an affirmative vote, the City Commission: (i) authorizes that the supplementation occurs "prior to final action being taken"; or (ii) requests certain information and continues the hearing so that the parties may produce the requested information prior to final action being taken. See id. Because the City Commission took final action on this matter on May 23, 2024, the rules do not permit the introduction of any additional evidence. Finally, during the January 11, 2024, City Commission meeting, both parties were permitted to make presentations and submit evidence into the record. Upon the conclusion of their presentations, City Attorney Wysong advised the City Commission that: "Both sides rested. That's closed. There is no further evidence being accepted." After considering all the evidence introduced into the record, the City Commission decided to defer its decision on the matter. When the City Commission resumed its consideration of the matter on May 23, 2024, the City's outside counsel Amanda Quirke Hand once again acknowledged that the opportunity to present evidence had expired, stating: "We were here in January and had a full and complete public hearing, and so I think it's the position of the City that the public hearing is closed at this time." appellate procedure for Quasi-iudicial hearings such as this one. Mason's Manual is, therefore, irrelevant. Third, even Mason's Manual prohibits a motion for reconsideration under the present circumstances. See, e.g., Mason's Manual § 461(5) ("When an appeal has been decided and the subject matter of the appeal disposed of, it is too late to move to reconsider the vote on the appeal."); see also Mason's Manual § 451 ("In general, the action cannot be canceled or made ineffective ... when the subject is beyond the control or out of reach of the body taking the original action."); Mason's Manual § 461(1) ("The motion to reconsider cannot be made after the matter is out of the control of the body ..."). Finally, there is nothing in Mason's Manual that would permit the Planning Department to submit a motion for reconsideration. THE BURTON FIRM • ATTORNEYS AT LAW Page 4 of 5 s'Aubtnttted into the ftublic record t i (s) YZ., L «+ ri. 2 c7 �. City Clerk However, despite these prohibitions against new evidence, the City now demands that new evidence be presented in connection with the motion for reconsideration. Months after acknowledging the universe of evidence was "closed," the City seeks to conduct an unlawful hearing and introduce new evidence for the City Commission's consideration, as confirmed by the resolution accompanying Item PZ 1, which states in the final Whereas clause, for example: "WHEREAS, in light of the extraordinary and substantial change in circumstances and demonstrated public need and interest, such as the August 20, 2024 referendum, the City Commission wishes to reconsider the appeal from the City Manager." Thus, it is clear that the City not only intends to conduct an unlawful reconsideration hearing, but also that the City intends to present unlawful evidence to the City Commission. What is more, the additional evidence the City seeks to have considered has nothing to do with the applicable review criteria for warrants under Section 7.1.2.4(d) and Article 4, Table 12 of the Miami 21 Code. V. Conclusion Item PZ 1 must be withdrawn from the City Commission agenda. The Planning Department lacks standing to pursue a motion` for reconsideration of the City Commission's final quasi-judicial determination. The hearing itself would be unlawful because the City Commission has no jurisdiction to re -consider a quasi-judicial warrant appeal months after the Commission rendered a final decision and the opportunity to appeal has expired. And, the hearing would run afoul of the Miami 21 Code by presenting to the City Commission evidence that was not introduced during the quasi-judicial hearing sought to be reconsidered since the City's own rules of procedure make clear that the City may not supplement the record of a quasi-judicial hearing after a final action has been taken. Here, the resolution accompanying Item PZ 1 indicates that the City intends to supplement the record with alleged evidence collected months after the City Commission took final action on the matter — and, worse, evidence that has nothing to do with the applicable review criteria for warrants under Section 7.1.2.4(d) and Article 4, Table 12 of the Miami 21 Code. In sum, Item PZ 1 is fatally flawed. It invites the City Commission to conduct an unlawful hearing and consider unlawful evidence in order to unwind a lawful, final quasi- judicial decision. This cannot be permitted. Item PZ 1 must be withdrawn.2 Very truly yours, Marc A. Burton, Esq. For the Firm Cc: City Manager Arthur Noriega V, ANoriega@miamigov.com Senior Appellate Counsel Eric Eves, EEves@miamigov.com Assistant City Attorney Brandon L. Fernandez, BFernandez@miamigov.com 2 While this letter focuses on the threshold question of whether the City Commission has jurisdiction to reopen and reconsider its quasi-judicial decision regarding the issuance of the Warrant, we believe there may be additional procedural defects with Item PZ 1, including, but not limited to, failure to comply with the notice requirements for quasi-judicial hearings. THE BURTON FIRM • ATTORNEYS AT LAW Page 5 of 5