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HomeMy WebLinkAboutSubmittal-Iris Escarra-Exhibit BinderSubmitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 5101 and 5125 Biscayne Boulevard Miami City Commission Exhibit Binder May 25, 2017 (Item PZ.15) 2043 -Submittal -Iris Escarra-Exhibit Binder Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Item PZ.15 — Mr. Elvis Cruz Appeal 5101-5125 Biscayne Boulevard Exhibit Binder Table of Contents 1. Updated Letter Requesting Dismissal of Appeal Based on Lack of Standing A. Section VII(H), HEP Board Rules of Procedure B. Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940 (Fla. 5th DCA 1988) C. Gulf & E. Dev. Corp. v. City of Fort Lauderdale, 354 So. 2d 57 (Fla. 1978) D. Section 23-6.2(e) of the City Code (aggrieved party) E. Section 23-4 of the City Code (notice requirements) F. Dougherty ex rel. Eisenberg v. City of Miami, 23 So. 3d 156 (Fla. 3d DCA 2009) G. Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374 (Fla. 3d DCA 2006) H. Chabau v. Dade County, 385 So. 2d 129 (Fla. 3d DCA 1980) I. Renard v. Dade County, 261 So. 2d 832 (Fla. 1972) J. Minutes from October 27, 2016 City Commission Meeting K. Pichette v. City of North Miami, 642 So. 2d 1165 (Fla. 3d DCA 1994) L. Hartnett v. Austin, 93 So. 2d 86 (Fla. 1956) M. P.C.B. P'ship v. City of Largo, 549 So. 2d 738 (Fla. 2d DCA 1989) N. Morgran Co., Inc. v. Orange County, 818 So. 2d 640 (Fla. 5th DCA 2002) O. Mattson v. Kolhage, 569 So. 2d 1358, 1359 (Fla. 3d DCA 1990) 2. Development Approvals Timeline 3. Letter of Intent and Application for Special COA 4. Staff Report Recommending Approval of Special COA 5. Resolution: HEPB-R-17-016 approving Special COA 6. Transcript of February 7, 2017 HEP Board Meeting 7. Biscayne Boulevard/MiMo Historic District Designation Report (as approved by the HEP Board on June 6, 2006) 8. Tax cards for 5101 and 5125 Biscayne (showing 19 motel units at 5101 Biscayne as described in designation report) 9. List of properties not listed in designation report Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 10. Comparison between Biscayne Boulevard/MiMo Historic District Designation Report and FEC Corridor Documentation Forms 11. Settlement Agreement Documents A. City Commission Resolution approving Settlement Agreement B. City Attorney's Office Memo explaining Settlement Agreement C. Settlement Agreement 12. TDRs A. TDRs Summary B. COE for the Property C. TDR Restrictive Covenant D. Last COT for the Property E. Proposed Floor Area Chart 13. Memorandum of Law A. City of Margate v. Amoco Oil Co., 546 So. 2d 1091 (Fla. 4th DCA 1989) B. City of Pompano Beach v. Yardarm Rest., Inc., 509 So. 2d 1295 (Fla. 4th DCA 1987) C. Smith v. City of Clearwater, 383 5o. 2d 681, 688 (Fla. 2d DCA 1980) D. Dade County v. Jason, 278 So. 2d 311 (Fla. 3d DCA 1973) E. Monroe County v. Ambrose, 866 So.2d 707 (Fla. 3d DCA 2003) F. Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10 (Fla. 1976) G. Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla. 2d DCA 1975) H. Castro v. Miami -Dade County Code Enforcement, 967 So.2d 230 (Fla. 3d DCA 2007) 14. Exhibit Boards Presented at Appeal Hearing Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk SUMMARY OF LETTER REQUESTING DISMISSAL OF APPEAL FILED BY ELVIS CRUZ AND THE MORNINGSIDE CIVIC ASSOCIATION The City Commission should dismiss the appeal filed by Elvis Cruz and the Morningside Civic Association for the following reasons: 1. Appellants did not appear before the HEP Board to oppose and present testimony. • Section 62-29(b) of the City Code allows the HEP Board to adopt Rules of Procedure. • Section VII(H) of the HEP Board Rules of Procedure states that "a decision of the Board may be appealed by any aggrieved party who opposed andpresented testimony on the item before the Board." • Appellants did not appear before the HEP Board. 2. Appellants did not pay the requisite appeal fees. 41 Appellants were required but failed to pay mailing fees for property owners within 500 feet of the subject properties. 3. Appellants are not aggrieved parties and therefore lack standing to appeal the Resolution. • Mr. Cruz lives nearly a mile away from the subject properties. As such, he has no standing to appeal. ® The Association has not identified any legally cognizable interest regarding the HEP Board Resolution or much less how its interest exceeds the general interest of the community 4. The Association is no longer a party to the appeal. • The Association withdrew from the appeal on March 17, 2017. rulGfE•�14144*1% 0 Green bergTraurig April 17, 2017 Updated May 9, 2017 VIA REGISTERED EMAIL Honorable Chairman and Commissioners City of Miami Commission 3500 Pan American Drive Miami, FL 33133 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Iris V. Escarra Tel 305.579 0737 Pax 305.579.0717 escarrai a gtlaw.com Re: Appeal of City of Miami Historic and Environmental Preservation Board's Approval of Historic Preservation Waiver for the properties located at 5101 and 5125 Biscayne Boulevard, Miami, Florida Dear Honorable Chair and Commissioners: Our firm represents 5101 RE CO, LLC (the "Applicant") in connection with the proposed restoration of the Bayside Motor Inn located at 5101 Biscayne Boulevard, Miami, Florida (the "5101 Property") and the redevelopment of the property located at 5125 Biscayne Boulevard (the "5125 Property"). The Applicant hereby respectfully requests that the City of Miami (the "City") Commission (the "Commission") dismiss the appeal of Resolution No. HEPB-R-17-016 (the "Resolution") filed by appellant Elvis Cruz and the Morningside Civic Association (the "Association") (collectively, the "Appellants"). As explained below, the City of Miami's Official Rules of Procedure for the Historical and Environmental Preservation Board (the "Rules of Procedure") and Section 23-6.2(e) of the City Code of Ordinances (the "Code") require that the appeal be dismissed. Additionally, Appellants have no standing to appeal the Resolution because they are not aggrieved parties. INTRODUCTION On February 17, 2017, Elvis Cruz and the Association' filed an appeal letter with the City, seeking to challenge the City's Historic and Environmental Preservation Board's (the "HEP Board") February 7, 2017 approval of a Special Certificate of Appropriateness (the It is entirely unclear whether Mr. Cruz is in fact acting on behalf of the Association. On March 17, 2017, after Mr. Cruz filed the appeal, a modified appeal letter was fled, in which the Association withdrew as an appellant. Later, on March 31, 2017, Mr. Cruz suggested that the Association's withdrawal was an error and that, now, it is the Association's intention to continue to participate in the appeal. However, Mr. Cruz has not provided the City, or the Applicant, with any evidence that the Association did indeed decide to continue pursuing its appeal. See copies of Mr. Cruz's various Clings regarding the Association's involvement in the appeal attached as Exhibit "A." MIA 1858756210 GREENBERG TRAURIG. PA • ATTORNEYS AT LAW ■ WWW GTLAW COM 333 S.E 2nd Avenue w Suite 4,100 - Miami. FL 33131-3238 ■ Tel 305 579 0500 s Fax 305 5790717 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk "COA") for the restoration and redevelopment of the properties located at 5101 and 5125 Biscayne Boulevard (collectively, the "Properties"). Section VII(H) of the Rules of Procedure states that "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). It is undisputed that neither Mr. Cruz nor any representative of the Association appeared before the HEP Board to oppose and/or present testimony regarding the Resolution. As Appellants did not appear before the HEP Board, they are without standing to appeal, pursuant to Section VII(H) of the Rules of Procedure. Section 23-6.2(e) of the City Code requires that "each appeal shall be accompanied by a fee of $525.00, plus $3.50 per mailed notice required pursuant to 23-4." Section 23-4 requires that appellants provide notice to property owners within 500 feet of the subject properties. Appellants failed to pay the required mailed notice fees in violation of the City Code. Under Florida law and Section 23-6.2(e) of the City Code, the Resolution may be appealed by an "aggrieved party." An aggrieved party is a citizen who demonstrates that he or she has a legally cognizable interest that will be adversely affected by the HEP Board's action. Appellants have no legally cognizable interest, and do not even attempt to demonstrate the existence of such an interest, much less the existence of an interest that will be adversely affected by the Resolution. Therefore, Appellants have no standing to appeal the Resolution. BACKGROUND The Applicant owns the Properties which were the subject of the Resolution. The Properties, located within the City's MiMoBiscayne Boulevard Historic District, are zoned T4- 0, pursuant to Miami 21. The 5101 Property is currently improved with the contributing structure known as Bayside Motor Inn (a two (2) story motel built in 1952, in a simple mid-century modern design) (the "Bayside Motor Inn") while the 5125 Property contains a separate non- contributing apartment building which is attached to the Bayside Motor Inn by a one (1) story entrance lobby which is also a non-contributing structure. On February 7, 2017, the HEP Board considered and approved the Applicant's request for a Special COA for the renovation of the Bayside Motor Inn, demolition of non-contributing structures located within the Properties, and the construction of a new three (3) story structure containing retail and office uses at the 5125 Property (the "Proposed Restoration"). The Proposed Restoration also included an underground parking garage and a new lobby that will connect the Bayside Motor Inn and the proposed retail and office building. Please find a copy of the Resolution attached as Exhibit °°B." Section 23-6.2(h) of the City Code authorizes the HEP Board to allow alterations that do not adversely affect the historic, architectural, and aesthetic character of a historic resource. The Proposed Restoration enhances the historic, architectural, and aesthetic character of the Bayside Motor Inn and the MiMoBiscayne Boulevard Historic District at large. The Proposed Restoration also restores the Bayside Motor Inn's original appearance in material, design, color, MIA 1858756210 2 GREENBERG TRAURIG. P.A. - ATTORNEYS AT LAW e WWW.GTLAW.COM Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk and texture while the proposed addition will serve to enhance and highlight the Bayside Motor Inn's architectural and historical importance. MEMORANDUM OF LAW I. The City's procedural rules require that the appeal be dismissed because Armellanits failed to oppose and present testimony before the HEP Board. Section VII(H) of the Rules of Procedure states, in part: A decision of the Board may be appealed by any aggrieved party who opposed and presented testimony on the item before the Board. (emphasis added). A copy of the Rules of Procedure is attached as Exhibit "C." Here, it is undisputed that neither Mr. Cruz nor any representative of the Association appeared before the HEP Board to oppose and/or present testimony on the Resolution. As Appellants did not appear as required by the Rules of Procedure, they cannot appeal the Resolution. See Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 943, 943-44 (Fla. 5th DCA) ("record ... did not demonstrate that the City of Maitland was a party aggrieved by the decision of the Board" because the City never appeared or presented any evidence or objections at hearing; circuit court "departed from the essential requirements of law in not dismissing the City's petition for lack of standing"), dismissed, 537 So. 2d 568 (Fla. 1988). As the City is bound by its procedural requirements, this proceeding should be dismissed. See Gulf & E. Dev. Corp. v. City of Fort Lauderdale, 354 So. 2d 57, 61 (Fla. 1978). II. The appeal should be dismissed because Appellants failed to timely pay the re uired notice fees. On May 8, 2017, the City informed Appellants that they failed to comply with the requirements of Section 23-6.2 and Section 23-4 of the City Code because appellants did not pay the required mailing fees to the City when they filed the appeal. See email correspondence from the City's Hearing Boards Division, attached as ]Exhibit "D." Section 23-6.2(e) of the City Code requires that "each appeal shall be accompanied by a fee of $525.00, plus $3.50 per mailed notice required pursuant to 23-4." Section 23-4 requires that appellants provide notice to property owners within 500 feet of the subject properties. However, Appellants only providcd notice to the registered homeowners associations and the Applicant. See Exhibit "D." Therefore, because Appellants' appeal was not "accompanied by" the required mail notice fees, Appellants did not comply with the requirements of Section 23-6.2 and 23-4. Accordingly, the City cannot allow Appellants to proceed with this appeal as doing so would represent a violation of the City Code and would constitute failure to follow essential requirements of law. Dougherty ex rel. Eisenberg v. City of Miami, 23 So. 3d 156, 159 (Fla. 3d DCA 2009) (holding that "the City is bound by the procedural requirements imposed by the code and cannot renege on its promise to its citizens to uphold the code."). MIA 1858756210 GREENBERG TRAURIG. RA • ATTORNEYS AT LAW e WWW.GTLAW.COM Submitted into the public Record for item(s) On 05-25-2017 III. Appellants are not an aggrieved party and have no standing to appeal the Resolution. Under Section 23-6.2(e) of the City Code, only the applicant, the planning department, or an "aggrieved party" have standing to appeal a decision of the HEP Board. The issue of standing is a threshold inquiry which must be made at the outset of a proceeding before addressing [the merits]." Ferreiro v. Philadelphia Indem. Ins., 928 So. 2d 374, 376 (Fla. 3d DCA 2006). In other words, before the Commission considers the merits of Appellant's appeal, it must first determine the threshold issue of whether the Appellant is an "aggrieved party" who has standing to challenge the Resolution. Absent standing to challenge the Resolution, this appeal must be dismissed since the Commission cannot properly review a HEP Board decision unless the appeal is filed by an "aggrieved party." See Chabau v. Dade County, 385 So. 2d 129, 130 (Fla. 3d DCA 1980) (holding that because an appellant was not an aggrieved party, the Miami -Dade Board of County Commissioners could not review a lower board's decision "and any decision of the Commissioners would be void ab initio."). In cases involving decisions made at a quasi-judicial proceeding, an "aggrieved party" is one who has a cognizable legal interest which is adversely affected by the decision being challenged. Renard v. Dade County, 261 So.2d 832 (Fla. 1972). The cognizable legal interest must be definite and exceed the general interest of the community. Id. The factors considered to determine whether a person is an "aggrieved party" are: (1) proximity to the property which is the subject of the decision; (2) character of the neighborhood; (3) type of change being sought; and (4) whether the person challenging the decision was entitled to receive notice of the proposed action. Id. Mr. Cruz does not possess a legally cognizable interest that will be adversely affected by the Resolution. Mr. Cruz lives too far away from the Properties for him to have a legal interest that exceeds the general interest of the community. Mr. Cruz's property is located 3,696 feet (nearly a mile) away from the Properties. Please see map attached as Exhibit SLE." As a result, proximity—the most important factor—is not a factor that would grant Mr. Cruz standing to appeal the Resolution. Please note that, on October 27, 2016, this Commission found that Ms. Susan Carrie Braun, President of the Buena Vista Neighborhood Association, was not an aggrieved party in regards to an application for the development of a five -story parking garage 53 feet away from her home. If Ms. Braun, who lived 53 feet away from the subject property and personally received notice of the proposed action had no standing, then Mr. Cruz who lives nearly a mile away certainly lacks standing to file this appeal. City of Miami Commission Meeting Minutes, dated October 23, 2017, at Page 8-16. See also Pichette v. City of N. Miami, 642 So. 2d 1165 (Fla. 3d DCA 1994) (finding that appellants who lived 2,800 and 3,000 feet, respectively, from the subject property had no standing to appeal). Additionally, the Resolution does not modify the character of the neighborhood. The Resolution approved the restoration and preservation of the Bayside Motor Inn and the construction of a new commercial building which the HEP Board found complied with the MiMoBiscayne Boulevard Historic District's design guidelines and regulations, including the 35 feet height limitation. A restored historic motel and a MiMo inspired retail and office building will not change the character of this neighborhood. According to its designation report, the MIA 1858756210 4 GREENBERG TRAURIG. P.A. • ATTORNEYS AT LAW a WWW.GTLAW.COM PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk MiMo District has a mixed use character as it includes private residences, office buildings, retail buildings, and motels. The proposed uses and scale are compatible with the surrounding buildings along Biscayne Boulevard. Neither Mr. Cruz nor the Association has identified any legally cognizable interest regarding the Proposed Restoration or much less how their interest exceeds the general interest of the community or how the Resolution impacts them at all. In fact, Appellants did not even appear at the HEP Board meeting where the Resolution was adopted where the public had an opportunity to speak and voice concerns about the Proposed Restoration. Finally, Mr. Cruz asserts that he is a "named party on a [2014] Settlement Agreement regarding this property," and, as such, his "standing as an individual is not based on proximity, it is based on [his] being a named party on the various appeals and court cases that led to the Settlement Agreement, and on being a named party in the Settlement Agreement." See emails from Elvis Cruz and Olga Zamora, Chief of Hearing Boards Division, dated April 18, 2017, attached as Exhibit "F." Mr. Cruz does not cite to any legal or other support for this statement, as there is none. In cases involving decisions made at a quasi-judicial proceeding, an "aggrieved party" is one who meets the factors listed above. Appellants predictably fail to address any of these factors because they don't meet any of them. Instead, Appellants ask this Commission to ignore the law. As for Mr. Cruz's argument that he and the Association have contractual rights to standing per the Settlement Agreement, he is incorrect. Standing cannot be conferred to either Mr. Cruz or the Association via the Settlement Agreement as the City cannot contract away quasi-judicial power. E.g., Hartnett v. Austin, 93 So. 2d 86, 89 (Fla. 1956) ("a municipality cannot contract away the exercise of its police powers .... In the exercise of this governmental function a city cannot legislate by contract"); accord P.C.B. Partnership v. City of Largo, 549 So.2d 738, 740 (Fla. 2d DCA 1989) ("[t]he City does not have the authority to enter into such a contract, which effectively contracts away the exercise of its police powers"). To allow a private party to enter into a private contract with the City (or any municipality) that would convey standing would cause "the whole scheme and objective of community planning and zoning [to] collapse." Hartnett, 93 So. 2d at 89; accord Morgran Co., Inc. v. Orange County, 818 So. 2d 640, 643 (Fla. 5th DCA 2002). The Appellants are not aggrieved parties. Therefore, this appeal must be dismissed. IV. The Commission may not consider the Association's appeal because the Association is no longer a party to the appeal. Even if the Association had standing to appeal the Resolution (which it irrefutably does not have) the Association cannot be an appellant because it withdrew from the appeal on March 17, 2017. See modified appeal letter attached as Exhibit "G."2 The City cannot choose to not Z Please note that the modified appeal letter also stated that "Damian Pardo and John Calkins ... wish to be added as appellants." The City did not accept Damian Pardo and John Calkins' notice of appeal because it was not filed within fifteen (15) days as mandated by Section 23-6.2(e) of the City Code. The Association, like Mr. Pardo and Mr. Calkins, cannot join the appeal after the appeal period has expired. MIA 185875621v1 GREENBERG TRAURIG, P.A. e ATTORNEYS AT LAW • W W W.GTLAW.COM Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk accept a filing, such as a dismissal, from the Association. In a quasi-judicial proceeding, there is an obligation to accept all filings presented in pending matters. E.g., Mattson v. Kolhage, 569 So. 2d 1358, 1359 (Fla. 3d DCA 1990) ("[in short, the clerk is obliged to accept motions presented for filing in pending cases"). Once the Association voluntarily withdrew its appeal, and did so after the time to appeal had expired, it was no longer a party to this proceeding. Accordingly, the Association cannot be a party to the appeal. CONCLUSION To reiterate, the City Commission should dismiss Appellants' appeal for the following reasons: 1. Appellants did not follow the Rules of Procedure. 2. Appellants failed to timely pay the requisite appeal fees, as required by Section 23-6.2(e) of the City Code. 3. Appellants are not "aggrieved parties" and therefore lack standing to appeal the Resolution. 4. The Association is not a party to the appeal because it withdrew its appeal on March 17, 2017. Accordingly, the Applicant respectfully requests that the Commission dismiss this appeal. { Sini 1y, Iris V. Escarra Enclosures cc: Mr. Elvis Cruz, Appellant Ms. Victoria Mendez, City Attorney Mr. Barnaby Min, Deputy City Attorney Mr. Rafael Suarez -Rivas, Senior Assistant City Attorney Mr. Francisco Garcia, Planning and Zoning Director Ms. Luciana L. Gonzalez, Assistant Planning and Zoning Director Mr. Efren Nunez, Acting Preservation Officer Ms. Olga Zamora, Chief of Hearing Boards Division MIA 1858756210 0 GREENBERG TRAURIG, P.A. ■ ATTORNEYS AT LAW ■ WWW.GTLAW.COM Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk EXHIBIT A Elvis Cruz 631 NE 57 Street Miami, Florida (305) 754-1420 ElvisCruz@mae.com : l lY .! L� i.11 4—el2ig 3�'O�ar' 33137 Submitted into the public APPEAL LETTER FOR BAYSIDE MOTOR INN Friday, February 17, 2017 Dear Hearing Boards Department, Record for item(s) PZ.15 On 05-25-2017. City Clerk As per Miami City Code Section 23-6.2 (e), this is a Written Notice of Appeal of the Historic and Environmental Preservation Board's (HEPB) approval on February 7, 2017, of a Certificate of Appropriateness (COA) for the properties located at 5101 Biscayne Boulevard and 5125 Biscayne Boulevard. That COA was Item No. 10 on the HEPB agenda, file ID number 1632. The reasons and grounds for the appeal are as follows: 1. The Staff Report stated that the building at 5125 Biscayne Boulevard is a non-contributing structure, which influenced the HEPB's decision. However, ample evidence to the contrary exists, which will be presented on appeal. 2. The HP Staff may not have been aware of a January, 2014 legal settlement on this property, as the Staff Report makes no mention of it, and it was not in the agenda packet for the HEPB. That legal settlement, to which the City of Miami was a party, was entered into for the preservation, rehabilitation and maintenance of the property, and describes the property as "historic". Nowhere in the legal settlement is it stated that demolition is allowed. The City granted ample TDRs (Transfer of Development Rights) as part of the settlement. This appeal is requested by two aggrieved parties: 1. The Morningside Civic Association. 2. Mr. Elvis Cruz. Both of those aggrieved parties are named as parties in the legal settlement mentioned above. It is the Appellants' belief that because this conflict was caused by the City's own oversight, the City should initiate and pay for any appeal and notification fees. Failing that, the Appellants will request reimbursement from the City Commission. Either way, please initiate the appeal process. Sincerely, Elvis Cruz, both individually and as President, Morningside Civic Association Submitted into the public Record for item(s) On 05-25-2017 Elvis Cruz 631 NE 57 Street Miami, Florida 33137 (305) 754-1420 E1visCruz@mac.com PZ.15 City Clerk MODIFIED APPEAL LETTER FOR BAYSIDE MOTOR INN Friday, March 17, 2017 RIE _��� Dear Hearing Boards Department, An appeal was filed on 17FEB2017, regarding the Historic and Environmental Preservation Board's (HEPB) approval on February 7, 2017, of a Certificate of Appropriateness (COA) for the properties located at 5101 Biscayne Boulevard and 5125 Biscayne Boulevard. That COA was Item No. 10 on the HEPB agenda, file ID number 1632. This appeal was requested by two aggrieved parties; The Morningside Civic Association and myself, Elvis Cruz. Please be advised that the Morningside Civic Association has elected to withdraw from the appeal. I, Elvis Cruz shall continue as an appellant. Additionally, Damian Pardo and John Calkins, who are abutting and nearby homeowners, wish to be added as appellants. Sincerely, Elvis Cruz O�� Damian Pardo, 421 NE 51 Street r, John Calkins, 421 NE 51 Street c� f� Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Elvis Cruz 631 NE 57 Street Miami, Florida 33137 (305) 754-1420 ElvisCruz@mac.com APPEAL LETTER FOR BAYSIDE MOTOR INN Friday, March 31, 2017 Dear Hearing Boards Department, Please know that there has been, once again, a change in the status of the Morningside Civic Association's participation on the appeal of the Historic and Environmental Preservation Board's (HEPB) approval on February 7, 2017, of a Certificate of Appropriateness (COA) for the properties located at 5101 Biscayne Boulevard and 5125 Biscayne Boulevard. That COA was Item No. 10 on the HEPB agenda, file ID number 1632. There was a procedural error on a vote of the Morningside Civic Association board. As a result, the appeal withdrawal letter of March 17, 2017 was issued in error. The Morningside Civic Association continues as an appellant. The reasons and grounds for the appeal were listed on the original appeal letter of 17FEB2017. I apologize for any inconvenience. Sincerely, Elvis Cruz, both individually and as President, Morningside Civic Association Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk PLANNNGCDIVEU EPARTMENf 2017MAY -5 AM 9: 46 Morningside Civic Association Resolution to Appeal HEP Board Decision of February 75 2017, re: 5101-5125 Biscayne Boulevard COA Whereas, The Morningside Civic Association is a party to a 2014 Settlement Agreement which ended the litigation regarding the property at 5101 and 5125 Biscayne Boulevard, and, Whereas, The City of Miami's HEP Board was not given, nor told of the existence of, that Settlement Agreement, nor of the resulting Restrictive Covenant, when it deliberated and made its decision approving a Certificate of Appropriateness for the demolition of the building at 5125 Biscayne Boulevard, at its February 7, 2017 meeting, and, Whereas, The Settlement Agreement and the Restrictive Covenant both require the preservation and maintenance of the buildings at 5101 and 5125 Biscayne Boulevard, Therefore, Be It Resolved: The Board of Directors of the Morningside Civic Association voted at their February 16, 2017 meeting to appeal the HEP Board's decision. Elvis Cruz, President, Morningside Civic Association Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk EXHIBIT B Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Miami Historic and Environmental Preservation Board Resolution: HEPB-R-17-016 File ID 1632 February 7, 2017 Item HEP13.10 Ms. Lynn Lewis offered the following resolution and moved its adoption. A RESOLUTION OF THE MIAMI HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD APPROVING, WITH CONDITIONS, AS AMENDED, (EXHIBIT "A") A SPECIAL CERTIFICATE OF APPROPRIATENESS FOR THE RENOVATION OF A CONTRIBUTING STRUCTURE, DEMOLITION OF A NON-CONTRIBUTING STRUCTURE, AND THE NEW CONSTRUCTION OF A THREE-STORY COMMERCIAL BUILDING, LOCATED AT APPROXIMATELY 5105-5125 BISCAYNE BOULEVARD, WITHIN THE MIAMI MODERN/ BISCAYNE BOULEVARD HISTORIC DISTRICT. Upon being seconded by Mr. Hugh Ryan the motion passed and was adopted by a vote of 4-1: Mr. David Freedman No Mr. Jonathan Gonzalez Absent Dr. William E. Hopper, Jr. Yes Ms. Lynn B. Lewis Yes Mr. Hugh Ryan Yes Mr. Jordan Trachtenberg Yes Mr. Todd Tragash Absent Megan Schml t Preservation Officer STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) Execution Date Personally appeared before me, the undersigned authority, Megan Schmitt, Preservation Officer of the City of Miami, Florida, and acknowledges that she executed the foregoing Resolution. SWORN AND SUBSCRIBED BEFORE ME THIS 15 DAY OF F_-_br UQ1YJ, 2017,E j Print Notary Name Personally know \./ or Produced I.C. Type and number of LID produced Did take an oath II or Cid not take an oath My Commission Expires SILVIA GONZALEZ ' MY COMMISSION 0 GG 051S81 Z EXPIRES° Novsmbw 33, 2020 Banded TNN Notary Public Ilndsruritery Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Miami Historic and Environmental Preservation Board Resolution: HEPB-R-17-016 EXHIBIT "A" 1. All glass shall be clear with the option of Low -E. 2. Applied brick shutters and the brick veneer covering the columns of the historic structure must remain. 3. The existing railings that line the staircases leading up from the courtyard and surrounding the second floor balconies of the historic structure must be salvaged and re -used. In areas where there is to be new railings, the design of the original historic building must be replicated. 4. The existing decorative concrete block garden wall in the historic structure must be retained. 5. The original sign structure must be retained and use open face channel letters to depict the name, Bayside Motor Inn on the historic structure 6. Applicant to provide an interior or exterior shade treatment to prevent light spillage from the interior spaces into the adjacent residential neighborhood. 1. All lighting on the exterior of both structures the property and in the parking lot of both structures shall not be higher than 18'-0" in height and be waren in color. 8. This Certificate of Appropriateness is subject to approval by zoning, building, and all other required city departments. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk EXHIBIT C Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk OFFICIAL RULES OF PROCEDURE CITY OF MIAMI HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD I. Purpose To establish procedures for organizing the business of the City of Miami Historic and Environmental Preservation Board, hereinafter termed "Board;" for processing proposals for designation of historic resources, historic districts, and archeological sites and zones; for processing applications for Certificates of Appropriateness for individual historic resources and for buildings within historic districts; for processing Certificates to Dig in archaeological sites and zones; and for Certificates of Approval in Environmental Preservation Districts and along Scenic Transportation Corridors, and additionally for hearing appeals of tree removal permits issued by the City of Miami's Neighborhood Enhancement Team Offices and Code Enforcement Department. II. General Rules The Board shall be governed by the terms of Chapter 17 (Environmental Protection), Chapter 23 (Historic Preservation), and by Chapter 62, Article VII (Historic and Environmental Preservation Board) of the Miami City Code as they may be amended or revised; and by the terms of Article 8.1 of the, Zoning Code (Tree Protection) of the City of Miami, Florida, as amended, and its successors; and the rules contained herein. For procedures not covered by the above referenced laws and rules, the Board shall follow the rules contained in the current edition of Robert's Rules of Order. III. Jurisdiction The Board's jurisdiction for its activities shall be the entire zoning jurisdiction of the City of Miami, Florida. IV. Members, Officers and Duties Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk The Board shall be composed of nine members and one alternate member, who shall be appointed by the Miami City Commission. A. Chairperson. A Chairperson shall be elected by the members of the Board to serve a term of one year. The Chairperson shall decide all points of order and procedure, subject to these rules, unless directed otherwise by a majority of the Board in session at the time. The Chairperson shall appoint any committees found necessary by the Board to investigate any matters before the Board. B. Vice -Chairperson. A Vice -Chairperson shall be elected by the Board from among its members in the same manner as the Chairperson. The Vice -Chairperson shall serve as Chairperson in the absence of the Chairperson, and at such times shall have the same powers and duties as the Chairperson. C. Elections. Election of officers shall be held annually in January of each calendar year. Members shall be notified by the Preservation Officer in writing of the election of officers at least ten (10) days prior to the scheduled election. D. Meeting Attendance. Faithful and prompt attendance at all meetings of the Board and conscientious performance of the duties required of members shall be a prerequisite to continuing membership on the Board. The Board shall be governed by the provisions contained in the Miami City Code which states in part: See. 2-886. Attendance requirement.' (a) Notwithstanding any other provision of this Code, any board member shall be automatically removed if, in a given calendar year: (1) He or she is absent from three consecutive meetings; or (2) He or she is absent from four of the board's meetings; (3) Provided that regardless of their compliance with subsection (a)(]) and (2) hereinabove, members must attend at least 50 percent of all the board meetings held during a year. (b) A member of a city board shall be deemed absent from a meeting when he or she is not present at the meeting at least 75 percent of its duration. (c) The provisions of this section may be waived by a four-fifths vote of the members of the full city commission. V. Meetings A. Regular Meetings. Regular meetings of the Board shall be held on the first Tuesday of each month at 3:00 PM in the Miami City Hall; provided that individual meetings may be scheduled for some other convenient time and place by a vote of a majority of Board members at least twenty-seven (27) days prior to such meeting. B. Special Meetings. Special meetings of the Board may be called at any time by the Chairperson. At least forty-eight (48) hours notice of the time and place of special meetings shall be given to each member of the Board. ' Explanatory Note: This language is reproduced for the Board's information. This is a section of the Miami City Code that applies in general to all of the City of Miami boards. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk C. Voting/ Quorum. Unless otherwise specified herein or in the City Code, all decisions and recommendations of the Board shall require a concurring vote of a majority of the members present. In the event of a tie vote on any question at a public hearing, such vote shall be construed as a denial. A quorum shall consist of four members of the Board. ursuant to Chapter 62 of the City Code.z All decisions and recommendations of the Hoard regarding designations pursuant to Chapter 23 of the City Code shall require a concurring vote of at least five members of the Board in favor of the motion. In the event of a vote regarding, designations pursuant to Chapter 23 that does not obtain five votes in favor of the motion, such vote shall be construed as a denial. D. Reconsideration/Rehearing of Decisions. The Board may reconsider any motion according to Robert's Rules of Order; and where significant new information or circumstances arise, the Board may rehear proposals for designation or applications for Certificates of Appropriateness, Certificates to Dig and Certificates of Approval, provided that no such rehearing shall take place within less than one (1) year from the original decision without the mutual consent of the Board and the applicant/ property owner, and further provided that no re -hearing shall take place if the applicant/owner can demonstrate to the Board that he or she has expended substantial monies in detrimental reliance of the Board's prior decision or if it would violate due process rights of any participant at the prior hearing resulting in the decision. E. Conduct of Meetings. All Regular Meetings are considered Public Hearings and shall be open to the public. The order of business at regular meetings shall be as follows: 1. Roll Call; 2. Approval of Minutes from previous meetings; 3. Updates from the Preservation Officer; 4. HEP Board Members' Items; 5. Public Hearing Items; 6 Unfinished (old) Business; 7. New Business; 8. Adjournment. This order may be revised by the Board from time to time. F. Written Statements. The Board may, at its discretion, request written statements from witnesses summarizing their testimony. Written statements in support of or in opposition to a designation, or offering additional information, clarification, or commentary on information previously provided may be submitted to the Board at its office for a period up to and including three (3) working days following the 2 City Code Section 2-887, states that a quorum shall consist of 50% plus one of the board's membership. Submitted into the public Record for item(s)_ On 05-25-2017. public hearing. Written statements shall not contain new arguments or points not addressed in the witnesses' prior testimony. Under special circumstances the Chairperson may extend the time for filing of written statements for a period of up to fifteen (15) working days. Written statements so submitted will be part of the record of the public hearing and available for public inspection. G. Documents presented at a Public 1-learinsg.. Any document submitted by the applicant at a public hearing shall be first given to the staff who will mark it as "Exhibit A" and follow by marking each additional document with successive alphabetic letters. The documents may then be distributed to the Board, but the original shall be retained by the Preservation Officer and become a permanent part of the record. H. Covenants Running with the Land. The Board is able to accept covenants running with the land related to an item being voted on by the board, freely and voluntarily proffered by the applicant. The applicant shall record the covenant in the public records and be bound by its terms. All covenants shall be in a (Dorm acceptable to the Preservation Officer and the Law Denartment ofthe Citv of Miami. I. Recordation of HEPB Designation Resolutions and Certain Certificates of Appropriateness. Historic designation approved by the board that meet the criteria set forth in Section 23-4 of the Miami City Code, must be recorded in the -public rccords and provide an attached legal description of the property to be recorded as a historic site. district, or archaeological zone. The recordation of the designation resolution must be made in the public records of Miami -Dade County, Florida and also must be included in the official historic and environmental preservation atlas of the City of Miami. Florida pursuant to sub -section 23-4 ( 4) of the Miami City Code 2. Recordation of resolutions in the public record of Miami -Dade County Arantius certificates of appropriateness may be directed by the board when in the opinion of the board the certificate contains unique, complex, or distinct conditions which are authorized by the board. The resolution to be recorded will have the legal description of the property attached. Recordation will be the responsibility of the applicant unless the board directs otherwise. Additionally, the applicant will bear the cost of the recordation process. Subsequently the applicant will furnish a copy of the recorded certificate of appropriateness with the Preservation Officer within thirty days. VI. Proposals for Designation of Historic Resources, Historic Districts, and Archeological Sites and Zones A. General Procedures. Procedures for designation shall be as set forth in Chapter 23 of the Miami City Code, of the City of Miami, Florida, as amended. PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk B. Proposals Initiated by the Public. Proposals for designation initiated by any party other than the Board or the Planning Department shall be submitted to the Preservation Officer at least fifteen (15) twenty-eight (28) days in advance of the Board meeting at which the proposal will be presented for preliminary consideration. Proposals shall be submitted on the Historic Designation application form maintained by the Planning Department and shall contain. at minimum the following information. 1. Historic name (if applicable), address of property, legal description Miami -Dade property appraiser information 2. Natne of owner, address, phone, and email 3. 'Name of person submitting application if not the owner, address hone and email 4. Architectural stvle. architect builder, date of construction. dates of alterations/additions 5. Written statement as to why the resource is eligible for designation pursuant to Chapter 23 of the City Code, including_ identification of each of the applicable criteria for designation and explanation of each criteria selected. 6. Current phOpgraphs showing all facades of the existing conditions of the proposed property and any contributing elements orthe site. 7. Additional information ineludin books, articles historic photographs, deed to the property, personal letters, contracts, drawings as well as any other sources that may be of interest in preparing a designation report. The applicant shall submit thirteen 13 copies of thea lication package for Board consideration. All proposals shall be accompanied by the required fee as outlined in Chapter 62 or the City Code. Receipt of such proposal does not guarantee the item's placement on the next regularly scheduled Board agenda. C. Preliminary hvaluation. The Board shall consider preliminary proposals for designation at Regular or Special Meetings. Such proposals need not be individually listed on the advertised agenda, but at least ten (10) days written notice via certified mail (unless there are more than fifty (50) property owners, in which case the notice shall be by regular mail) must be given to the property owner of record with the Miami -Dade County Property Appraiser. If the property owner is the initiator of the request, he may waive the notice requirement in writing before the meeting. The Board shall consider all documentation provided by the initiator of the proposal to support its conformance with the Criteria for Designation in Chapter 23 of the Miami City Code, as amended. In addition, the Board shall consider the significance and urgency of the proposal, relative to other potential designations, and the workload for the Board and support staff. As appropriate the Board may: 1. Request the Planning Department to prepare a Designation Report and schedule a Public Hearing within a specified time period; Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 2. Table the proposal for a future date to allow higher priority designations to be completed; 3. Reject the proposal for lack of conformance to the Criteria for Designation; 4. Defer discussion pending further investigation. D. Public Hearing, and Findin, s. The order of business for the Board in public hearings concerning designation shall be as follows, unless otherwise directed by the Chairperson: 1. The Chairperson shall read the notice of the item from the agenda. 2. All persons wishing to testify, excluding attorneys, shall be sworn in. All speakers may be limited to five (5) minutes or less at the discretion of the Chairperson. Such limitation should be announced at the commencement of the public hearing on the item in question. 3. The Preservation Officer or designated representative shall present the Designation Report. 4. The property owner (or agent) shall state his or her position'. 5. Members of the public wishing to testify shall speak. 6. The Chairperson shall close the public hearing. After this point, the public may speak only in response to questions from the Board. 7. The Board shall commence discussion; motions shall be entertained by the Chairperson. 8. A roll call vote shall be taken on each motion (except for procedural motions such as to defer or continue), and the results announced by the Preservation Officer. The Board may approve, deny, or continue the designation. E. Appeals of Designation/Denial of Designation. A decision of the Board to designate, or to deny designation of a property may be appealed by any aggrieved party. Such party shall file, within fifteen (15) calendar days from the date of the Board's decision, a written notice of appeal which sets forth the decision appealed from and the reasons or grounds for the appeal, with the Department of Hearing Boards and shall send a copy to the Preservation Officer, along with the required fee. Appeals of any decision of the Board shall be heard by the City Commission.4 3 All persons who testify on behalf of an owner who receive payment for such services must be a registered lobbyist in the City of Miami. 4 Appeals shall be as prescribed by law and the provisions of the Miami City Code. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk VII. Applications for Certificates of Appropriateness A. General Procedures. Procedures for issuing Certificates of Appropriateness shall be as set forth in Chapter 23 of the Miami City Code, as amended. Standard Certificates of Appropriateness shall be issued at the staff -level for certain approved minor alterations to historic properties. Special Certificates of Appropriateness shall be issued by the Board for projects involving major alterations or for appeals from staff -level decisions. B. Filing of Application; The completed application for a Certificate of Appropriateness shall be filed with the Preservation Officer. Applications for Special Certificates of Appropriateness shall be filed at least fifteen (15) twenty- eight j28] days prior to the Board meeting at which said application is to be considered. All applications for Special Certificates of Appropriateness may be filed by the property owner, tenant, architect, contractor, or other agent; but this application shall contain the signature of the property owner. C. Contents of Application. A complete application for a Certificate of Appropriateness, Standard or Special, shall consist of a completed application form and supporting exhibits, as required according to the type of work proposed. 1. Minor Alterations (Standard Certificates of Appropriateness) a. Types of Improvements to be Considered Minor: 1) Repainting (when the color selected is within the first three levels of intensity illustrated in a color strip). 2) Addition or removal of awnings, shutters, canopies, and similar appurtenances. 3) Application or use of exterior materials which will substantially cover one or more sides of the structure, when using the same material as the original (i.e. "in-kind" replacement), as evidenced by tax card information from the City of Miami Building Department records or any other archival source that can document the original conditions of the building. This provision applies to but is not limited to roofing, paving, etc.. 4) The use of a high profile S-shaped tile where barrel tile was originally used. 5) Replacement of doors or windows with the same size, style and configuration as the original, as evidenced by tax card information from Submitted into the public Record for item(s) On 05-25-2017 PZ.15 the City of Miami's records or any other archival source that can document the original conditions of the building. 6) Removal or destruction of designated vegetation. 7) All improvements, alterations, and renovations which can be accomplished without obtaining a building permit, such as repairs and repainting. 8) Work which will not be visible from the public right-of-way, as determined by staff, including small rear additions, demolition of illegal or non -historic additions, pools or decks in the rear yard, window or door replacement on rear elevations, etc. 9) Work which is in conformance with the General Design Guidelines for Historic Districts which were previously adopted by the Board. b. Exhibits Required for Minor Alterations: The following requirements may include, but not be limited to: 1) Current color photographs (digital photographs are acceptable) of the property showing its present condition and accurately representing the existing materials, colors, and textures. All photographs shall be labeled to indicate the property name, (if any) address, and date, and describe the orientation of the view. 2) A recent survey (within the last 5 years), showing the location of the lot in relation to its surroundings. The survey shall also include a site plan of the property showing the location, shape, and spatial arrangement of all existing walls, pavement and other structures, as well as all significant existing landscape features. Any proposed site changes shall be indicated on this survey, including but not limited to new fences, gates, pools, decks, paving, landscape features, etc. 3) Elevation drawings of all affected sides showing complete architectural details and including all exterior equipment and appurtenances where applicable. All existing and proposed materials and finishes shall be identified and noted on the elevations. 4) Manufacturer's catalog data and notice of acceptance ( as applicable) for all new windows, shutters, trash receptacles or containers, signs, transformers, air-conditioning equipment, and other visible devices and materials showing size, form, quantity, color, type of material, height, location, and method of installation. All items shall be keyed to the survey or the elevations as appropriate. City Clerk Submitted into the public Record for item(s) On 05-25-2017 5) If site development work is proposed, a site plan shall be provided. The site plan will include the location of new fences, gates, pools, decks, paving, major landscape features, and any other structures that exist or are proposed for the site. 2. Major Alterations, New Construction or Additions (Special Certificates of Appropriateness) a. Types of Improvements to be Considered Major: 1) Construction of a new building or auxiliary structure. 2) Any addition to or alteration of an existing structure which increases the square footage of the structure or otherwise alters its size, height, contour, or outline. 3) Change or alteration to the structure's architectural style. 4) Change or alteration of the size, shape, or style of windows and doors except when this change returns the windows and doors to the original dimension and/or configuration. 5) Addition or removal of one or more stories. 6) Alteration of a roof line or use of any roofing material other than the original material as indicated by the City of Miami tax cards and/ or any other relevant documentation that illustrates the original roof materials. 7) Site work that will be visible from the public right of way, including but not limited to the installation of pools, fences which do not meet the pre- established guidelines, the addition of driveways and walkways (including expansion of existing driveways and walkways), etc. 8) Demolition, including partial demolition and the demolition of auxiliary structures. 9) Any other change to a historic property which would alter the appearance of the property, as determined by the Preservation Officer. 10) Any activities over which the Board had previously requested review, including the installation of windows on a former porch, the replacement of original jalousie windows, etc. b. A complete application for a Special Certificate of Appropriateness, shall be submitted to the Preservation Officer. A complete application shall consist PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk of fourteen (14) packets (consisting of one full size plan set and thirteen 11" x 17"s) containing the materials/exhibits described in the preceding paragraphs. The following requirements may include, but not be limited to: 1) A completed Application form for a Certificate of Appropriateness, including a written description of the project, signed by the property owner. 2) Current color photographs (digital photographs are acceptable) of the property clearly showing all affected elevations of the building, and its setting. The photographs should show the building in its present condition and should accurately represent the existing materials, color and textures. All photographs shall be labeled to indicate the property name (if any), address, and date. 3) A survey prepared by a registered land surveyor. Such survey shall show the location of all existing structures and trees upon the yard area of the entire site, or portion of the site affected by the proposed work. The survey shall be signed and sealed when requested by staff or the Board. 4) If applicable, manufacturer's catalogue data on all new windows, shutters, roofing materials, air-conditioning equipment, signs, transformers, light fixtures, and other visible devices and materials showing size, form, quantity, color, type of material, height, location, and method of installation. Color samples for all new paint or fixtures shall also be provided. 5) When requested, a colored perspective rendering of the proposed project showing the form, style, and scale of the project, all roof -top equipment and screening proposed, signs, landscaping, and other architectural features. Such rendering shall be accurate as to both scale and color representation. 6) When the project involves new construction, a site plan, all elevations, floor plans and landscape plan. A context map/plan shall also be provided that shows the footprint of the proposed building and all neighboring buildings and properties, including property lines and building footprints. Provide photographs of neighboring buildings and key them to the context map. Elevations that include the proposed building and the buildings on either side are also desirable. Submitted into the public Record for item(s)_ On 05-25-2017 . PZ.15 D. Attendance at Public Hearin, The applicant (or authorized agent) shall be present at the public hearing for each Special Certificate of Appropriateness.' Failure of the applicant to appear at the hearing, when issued ten (10) days prior notice, may be grounds for deferral of the application to the next regularly scheduled meeting of the Board; and said deferral shall be considered to be an action taken by the Board for purposes of the sixty (60) day time limit in the Miami City Code. Failure of the applicant to appear shall not preclude consideration and action by the Board of the application as submitted. E. Consideration of Applications for Special Certificates of Appropriateness. The order of business for consideration of applications by the Board shall be as follows, unless otherwise directed by the Chairperson: 1. The Chairperson shall read the notice of the item from the agenda. 2. All persons wishing to testify, excluding attorneys, shall be sworn in. All speakers may be limited to five minutes or less at the discretion of the Chairperson. This shall be announced at the commencement of the hearing. 3. The Preservation Officer or his or her designated representative will review the facts of the case and present their recommendation(s). 4. The applicant shall then describe any additional facts and present his/her arguments in support of the application. 5. The Chairperson will then ask if anyone from the public wishes to address the item. 6. The Chairperson shall close the public hearing and commence discussion among Board members. After this point, the applicant and the public may speak only in response to questions by the Board. 7. After the Board's discussion is completed, a motion shall be entertained by the Chairperson. 8. A vote shall be taken and the results announced by the Preservation Officer. F. Approved Application. If an application is approved, the Preservation Officer shall prepare a written Resolution, clearly describing the nature of the work and/or the conditions of the approval. The original Resolution shall be signed by the Preservation Officer and shall be filed in the case file opened for that purpose, and maintained in the offices of the Historic Preservation Section of the Planning Department. 5 Any person who receives remuneration for their representation of an item before the HEP Board shall be registered as a lobbyist with the Miami City Clerk. City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk G. Denied Application. If an application is denied, the Preservation Officer shall transmit a letter to the applicant describing the reasons for the denial and the applicant's right of appeal if applicable. H. Appeals of Board Decisions. A decision of the Board may be appealed by any aggrieved party who opposed and presented testimony on the item before the Board. Such party shall file, within fifteen (15) calendar days, a written notice of appeal which sets forth the decision appealed from and the reasons or grounds for the appeal, with the Department of Hearing Boards, with a copy to the Preservation Officer. Each appeal shall be accompanied by the required fee. Appeals of any decision of the Board shall be heard by the City Commission.b VIII. Applications for Tree Removal and Development Activity within Environmental Preservation Districts : Certificates of Approval A. General Procedures. Procedures for approving tree removal permits and Certificates of Approval shall be as set forth in Chapter 17, of the Miami City Code, entitled "Environmental Preservation," as amended. Standard Certificates of Approval shall be issued at the Staff level for certain approved minor alterations to properties within Environmental Preservation Districts or along Scenic Transportation Corridors. Special Certificates of Approval shall be issued by the Board for projects proposing major alterations or for appeals of Staff -level decisions. B. Filing of Application. The completed Application for a Certificate of Approval shall be filed with the Preservation Officer. An Application for a Special Certificate of Approval shall be filed at leastfif4een (15) twenty-eight (28) days prior to the Board meeting at which it is to be considered. All applications may be filed by the property owner, tenant, architect, contractor, or other agent, but applications for Special Certificates of Approval shall contain the signature of the property owner. C. Contents of Application. Applications for Certificates of Approval, Standard or Special, shall consist of information as summarized below and as set forth under Section 17-33 of the Miami City Code, as amended. For projects which have little effect to the existing landscaping and for which sufficient documentation can be provided to illustrate those conditions, some of the requirements listed below may be waived by the Preservation Officer. Standard Certificates of Approval a. Activities Qualifying for Standard Certificates of Approval Appeals shall be as prescribed by law including the City Code. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 1) Development activity where all existing trees are to be preserved or relocated on site. 2) Removal of diseased, injured, or hazardous trees. 3) Removal of undesirable trees as listed in 17-37 of the City Code. 4) Additions or modifications to existing buildings which involve tree removal, except where such addition exceeds fifty percent (50%) of existing lot coverage. 5) Tree removal and site improvement for existing buildings, including but not limited to fences, walls, patios, driveways, pools, etc. b. Exhibits Required for Standard Certificates of Approval 1) The completed application form for a Certificate of Approval, including the signature of the owner. 2) An existing tree survey, prepared by a registered land surveyor or landscape architect (except that for developed single family and duplex dwelling units such survey may be prepared by the homeowner), such survey shall show the location of all existing trees on the entire site. All trees shall be summarized in legend form and shall contain the botanical and common name, location, diameter (4.5 feet from grade), and approximate height and spread of all trees on the site. Groups of trees less than three feet (3') apart may be designated as clumps, with the exception that any tree with a trunk diameter six inches or more must be specifically designated. 3) For large site areas on which developmental activity or tree removal is to occur on only a portion of the site, the required tree survey shall exclude those portions of the site which will not be affected by the development or the removal activity. The Preservation Officer shall determine the proper extent of the tree survey. 4) A minimum of two (2) photographs adequately showing the general landscape character of the site and at least 1 photograph of each tree proposed for removal. Digital photographs are acceptable. Photographs of all existing architectural features, including buildings, structures, walls, etc. shall be provided. Each photograph shall be clearly numbered, dated and labeled with the ' Chapter 17, Sec 17-33(b) (2) Submitted into the public Record for item(s)_ On 05-25-2017 . PZ.15 property address, the tree number and brief description of what is shown. Photograph locations shall be keyed to the site plan. 5) A site plan drawn to a minimum of 1 inch to 20 feet showing: a. Location map; b. Scale and north arrow; c. Location, shape and spatial arrangement of all existing and proposed buildings, walls, driveways, parking area, structures and natural features, d. General location and description of surrounding buildings and adjacent land areas and uses; e. Any tree canopy extending over the subject property from surrounding properties that may be affected by the proposed development; f. Location of existing and proposed underground and above grade utility services; g. All existing trees labeled by number consistent with the tree survey; h. All existing and proposed paving materials and configuration of coverage, with an indication of existing and proposed grades; i. Setback and yard requirements 6) All elevations for all proposed new buildings. 7) Where tree relocation/replacement is proposed or required, provide a planting plan prepared by a licensed landscape architect. If desired by the applicant, information required for the planting plan may be shown on the site plan. Information on a planting plan shall be as follows: a. All existing trees labeled by number consistent with the certified tree survey. A legend shall indicate the name, trunk diameter, and approximate height and spread of each tree, as well as its condition and whether it is proposed to be preserved, removed, or relocated. If relocation is proposed, the new location for each tree must also be indicated on the planting plan. b. Location, quantities, common name, botanical name, caliper, height and spread of all proposed new plant material including trees, palms, shrubs, and ground cover. Specifications for planting, fertilizing, and staking may also be required. c. All site furnishings, such as benches, planters, trellises, gazebos, and lighting. d. Irrigation or proposed method of watering. City Clerk Submitted into the public Record for item(s) On 05-25-2017 PZ.15 8) For trees to be relocated, provide one copy of a schedule for root and canopy pruning and method of relocation. Provide the name of the licensed landscape contractor that will perform the relocation. 9) Provide one copy of a site plan showing the location of protective barriers to be erected during construction to protect existing trees from damage. 10) Signature of Zoning Inspection Official and Public Works Department (if the trees are located on the public right -or -way) on at least one copy of the site plan indicating compliance with all applicable zoning regulations or indicating variances that would be required. Please note that this review may take approximately five days and must be completed before the Preservation Officer can accept the application. 11) Twenty -Five dollar ($25.00) application fee, payable to the City of Miami. 2. Special Certificates of Approval a. Activities Requiring a Special Certificate of Approval 1) New development involving removal of existing trees from the site or alteration of other environmentally significant features. 2) Development activity or tree removal not eligible for Standard Certificates of Approval. 3) Applications referred to the Historic and Environmental Preservation Board on appeal from decisions of City staff. b. Exhibits Required for Special Certificates of Approval 1) The exhibits required for a Special Certificate of Approval shall be the same as set forth in the Standard Certificate of Approval except that fourteen (14) copies of each item shall be provided. D. Public Hearing The order of business at public hearing for consideration of applications for Certificates of Approval by the Board shall be as set forth for Certificates of Appropriateness. MUM City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk A ■ MI ■ AA "OhmsA ■ MI in IX Amendments Amendments shall be made to the Rules of Procedure contained herein by a concurring vote of no less than five members of the Board. Adopted by Resolution HC -82-1, dated September 28, 1982. Amended by Resolution HC -83-11, dated February 28, 1983. Amended by Resolution HC -83-37, dated July 26, 1983. Amended by Resolution HC -83-52, dated December 20, 1984. Amended by Resolution HC -84-13 dated March 20, 1984. Amended by Resolution HC -85-6, dated March 19, 1985 Amended by Resolution HC -87-3 dated February 17, 1987. Amended by Resolution HC -88-78, dated October 25, 1988. Amended by Resolution HEPB-2005-56, dated July 5, 2005. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Amended by Resolution HEPB-2005-101, dated December 6, 2005. Amended by Resolution HEPB 2009- 055 dated August 4, 2009 Amended by Resolution HEPB 2010-015 dated March 2, 2010 Amended by Resolution HEPB-R-12-67 dated November 6, 2012 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk EXHIBIT D Submitted into the public Record for item(s) On 05-25-2017 From: Zamora, Olga Sent: Monday, May 8, 2017 5:20 PM To: ZZZ-ElvisCruz (Zoning) <elviscruz@mac.com> Cc: Suarez -Rivas, Rafael <RSuarez-Rivas@miamigov.com>; Gonzalez, Luciana L. <IRonza lez@ m is m igov.com> Subject: Appeal - Mail Notices to Property Owners within 500 ft Importance: High Hello Mr. Cruz, I am reviewing your appeal file in preparation for this Thursday's meeting. Your appeal will need to be rescheduled from this Thursday, May 11, 2017 to possibly Thursday, May 25, 2017. As per Section 23-6.2 and Section 23-4 of the City of Miami Code, the property owners within 500 ft. of the subject properties for your appeal need to receive mailed notification. I will need for you to please provide Hearing Boards with mailing labels showing all property owners within 500 ft. of the subject properties. Hearing Boards will use these mailing labels to mail certified mail notices of your appeal to the applicable property owners. You may prepare these labels using the Department of Planning and Zoning's free online GIS Portal or choose a real estate or zoning specialist of your choice. I have provided you with an invoice (Financial Transaction Form), attached to this email as a PDF, in which I estimate the number of property owners within a 500 ft. radius. You'll notice how the Financial Transaction Form shows the estimated number of property owners to be 60, multiplied by the $3.50 per mailing fee, for a total of $210.00. You may pay the fee in person or online at the following URL: https:Hportal.miamigov.com/landmanagement/BuiIdingPermit/WebPayment/Search?sea rchType=FinlD For clarification, the previous invoice you paid, which shows a total of 29 units, was for the total number of individuals or homeowners associations registered with the Upper Eastside NET area (27) who will be mailed certified notices, plus the mail notice to the applicant of the COA (1), plus the mail notice to the appellant(s). If my estimate is over/under, then I will need re-invoice/refund you promptly. Kindly provide proof of payment to me and the mailing labels to me by no later than Thursday at 5 pm. Doing so, will enable Hearing Boards to prepare and to mail out certified mail notices to applicable property owners with at least 10 calendar days' notice for the May 25, 2017 City Commission meeting. If you have any questions, or concerns, please feel free to contact me. Regards, PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Olga Zamora, Chief _ Planning and Zoning Department, Hearing Boards Division 305.416.2037 Visit us at: htto://www.miamigov.com/hearing boards/ Submitted into the public Record for item(s) On 05-25-2017 EXHIBIT E PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk DO nFit 3t}5, of Mioml Q O Apaulure Sludim Miami L11ge Ha41 R\ WturnI center V KE 5 1Jr 5t NE 59th S? 16 min Appellant's Property 09 roto 58th Terrace NE 58th Terrace + ley . nA-2I hi.rth—t 97th Cheat E 5811) St NE 581h St NE 58th St z m W t n 14E 57th St,NE,5Ah-q1 r fWaN Siam Pinna��� r NE 561h Sl NE 5601 St lacle Place_. St NE 56th 4) Is swkse NE 55th Terrace NE 55th Terrace NE 55th Terrace z NE 55th Sl rJE '.59, St r. 14 min NE 55th Sl C; ` NE 53rd St NE jZ 5 m �Mdtei.Blanco r NE 53rd Sl Burger K4q NE 52nd Terrace NE 52nd z. z n NE 3 NE51, u�' IE 52nd St 5101 Biscayne Boulevard NE 51sl S5 7`11 tiiei ;z, t NE 51st 5l N Brhiarn Yoga yry Cenlrnl Mlamr V NE�Ah The Properties 1Run s comwny r,Rwml�y e5 Archbishop Curley Submitted into the public Record for item(s) On 05-25-2017 EXHIBIT F PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk From: "Zamora, Olga" <OZamoraQinJami gov.com> Date: April 18, 2017 at 9:39:20 AM EDT To: "ZZZ-E1visCruz (Zoning)" <elviscruz(?a.mac.com> Cc: "Mendez, Victoria" <VMendez(&miamigov.com>, "Min, Barnaby" <bmin &rniami ov.com>, "Garcia, Francisco" <fgarcia(d?miami ov.com>, "Nunez, Efren" <EfrenNunez@miarnigov.com>, "Escarralrr�g1l_aw.com" <l3scarrai0.gtlaw.com>, "Gonzalez, Luciana L." <lp_onzalez(5,miamigov.com>, "Iturrey, Jessica" <1ltu1re a miami ov.com>, "Gray, Lakisha" <LGray(a7m iam igov.com> Subject: RE: 5101-5125 Biscayne Boulevard -- Appeal Mr. Cruz, This email is for clarification and accuracy regarding your last paragraph, which reads: "However, Ms. Zamora declined to accept the March 31, 2017 letter, saying it was unnecessary because the original appeal letter ofFebruary y 17, 2017 was still in effect, as the appeal withdrawal letter of March 17, 2017, which had been accepted by a different City staff member by mistake, was not valid. " As I explained to you when you visited on Friday, March 31, 2017 at about 4 pm, the Hearing Boards Division signed for the letter you wrote and dated March 17, 2017. It turns out, that particular letter is legally insufficient as you submitted it past the appeal deadline period; no additional appellants were added to the appeal, and conversely no original appellants were removed. The appeal letter as part of the file is the one submitted within the appeal period, dated February 17, 2017. Regards, Olga Zamora, Chiet Planning and Zoning Department, Hearing Boards Division Direct Line - 305.416.2037 Visit us at: httr)J/www.miamqqov comlhearing boardsl From: Elvis Cruz [mailto:elviscruzCaa mac.com] Sent: Tuesday, April 18, 2017 8:36 AM To: diazc@)gtlaw.com Cc: City of Miami City Clerk's Office; Mendez, Victoria; Min, Barnaby; Suarez -Rivas, Rafael; Garcia, Francisco; Nunez, Efren; Zamora, Olga; Escarral@) tlaw.com; Hardemon, Keon (Commissioner); Suarez, Francis (Commissioner); Gort, Wifredo (Commissioner); Carollo, Frank (Commissioner -Office); Russell, Ken (Commissioner) Subject: Re: 5101-5125 Biscayne Boulevard -- Appeal Dear Mr. Diaz, I hope this message finds you well. Thank you for yesterday's letter signed by Ms. Iris Escarra regarding the appeal by the Morningside Civic Association and myself. Submitted into the public Record for item(s) On 05-25-2017 Please know there are numerous substantive issues about the case which were not mentioned in Ms. Escarra's letter. I hope to cover them at the appeal hearing. Regarding the issue of the appellant's standing, there are two key facts which appear to have been overlooked in Ms. Escarra's letter. 1. I, Elvis Cruz, am a named party on a Settlement Agreement (in 2014) regarding this property. So is the Morningside Civic Association (MCA). As a named party on that Settlement Agreement both I and the MCA have a legally cognizable interest that would be adversely affected by the Resolution, and therefore both I and the MCA are aggrieved parties. PZ.15 That Settlement Agreement resulted in a Restrictive Covenant (also in 2014) which requires that the building be "preserved and maintained". Please note that neither the Settlement Agreement nor the Restrictive Covenant (nor any other associated documents) were part of the agenda packet for the HEP Board's consideration, nor were they mentioned in any testimony, at the HEP Board meeting when it made its decision on February 7, 2017. Nor were those two key public documents mentioned in Ms. Escarra's letter of yesterday. (As an important side note, I have requested that those two key public documents and eight other pertinent public documents be made part of the agenda packet for the City Commission's hearing of this appeal on April 27, 2017, so that the Commissioners and City Staff and all parties would have time to study them prior to the hearing. However, I was informed by the City that I had to bring ten copies of each document to the City Commission meeting that day, in order to distribute and submit them into the record. I hope the City Commissioners reading this email understand that fairness and common sense would not be well -served by my handing out ten documents (some fairly lengthy) at the start of the appeal hearing and then expecting those documents to be absorbed and understood on the spot.) In summary of this point, my standing as an individual is not based on proximity, it is based on my being a named party on the various appeals and court cases that led to the Settlement Agreement, and on being a named party in the Settlement Agreement. 2. The Morningside Civic Association (MCA) continues to be an appellant, as per its appeal letter of February 17, 2017. (Please see Exhibit A in your email of yesterday.) City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk As per the attached letter, ("Appeal Letter for Bayside Motor Inn", dated March 31, 2017) a procedural error was made on an MCA board vote which resulted in an appeal withdrawal letter, dated March 17, 2017, being issued in error. (Please see Exhibit B in your email of yesterday.) On March 31, 2017, I hand -delivered, to Ms. Olga Zamora of the City's Hearing Boards department, the attached letter which cancels the appeal withdrawal letter of March 17, 2017 and continues the MCA's participation as an appellant. However, Ms. Zamora declined to accept the March 31, 2017 letter, saying it was unnecessary because the original appeal letter of February 17, 2017 was still in effect, as the appeal withdrawal letter of March 17, 2017, which had been accepted by a different City staff member by mistake, was not valid. I hope this clarifies the standing issue. Sincerely, Elvis Cruz, both individually and as President, Morningside Civic Association On Apr 17, 2017, at 16:30, diazc g gtlaw.com wrote: Dear Mr. Hannon, Our firm represents 5101 RE CO, LLC in connection with the appeal filed by Mr. Elvis Cruz which is scheduled to be considered by the City Commission at its April 27, 2017 meeting. Attached please find a letter addressed to the City Commission in connection with Mr. Cruz's appeal. Please confirm once your office sends copies of the attached correspondence to the individual commissioners. I have copied Mr. Cruz on this email (elviscruz(Pmac.cow) and will also provide him a hard copy of the attached via U.S. mail. Thank you for your assistance. Regards, Carlos L. Diaz Associate Greenberg Traurig, P.A. 1 333 S.E. 2nd Avenue i Miami, FL 33131 Tel 305.579.0502 diazcC'atlaw,com I www.gtlaw.cam Submitted into the public Record for item(s)_ On 05-25-2017 . EXHIBIT G PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Elvis Cruz 631 NE 57 Street Miami, Florida 33137 (305) 754-1420 E1visCruz@mac.com MODIFIED APPEAL LETTER FOR BAYSIDE MOTOR INN 73 Friday, March 17, 2017 R Dear Hearing Boards Department, aa_ oar'ds An appeal was filed on 17FEB2017, regarding the Historic and Environmental Preservation Board's (HEPB) approval on February 7, 2017, of a Certificate of Appropriateness (COA) for the properties located at 5101 Biscayne Boulevard and 5125 Biscayne Boulevard. That COA was Item No. 10 on the HEPB agenda, file ID number 1632. This appeal was requested by two aggrieved parties; The Morningside Civic Association and myself, Elvis Cruz. Please be advised that the Morningside Civic Association has elected to withdraw from the appeal. I, Elvis Cruz shall continue as an appellant. Additionally, Damian Pardo and John Calkins, who are abutting and nearby homeowners, wish to be added as appellants. Sincerely. Elvis Cruz Z94 Damian Pardo, 421 NE 51 Street t l John Calkins, 61 NE 51 Street Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk G. Denied Application, If an application is denied, the Preservation Officer shall transmit a letter to the applicant describing the reasons for the denial and the applicant's right of appeal if applicable. H. Appeals of Board Decisions. A decision of the Board may be appealed by any aggrieved party who opposed and presented testimony on the item before the Board. Such party shall file, within fifteen (15) calendar days, a written notice of appeal which sets forth the decision appealed from and the reasons or grounds for the appeal, with the Department of Hearing Boards, with a copy to the Preservation Officer. Each appeal shall be accompanied by the required fee. Appeals of any decision of the Board shall be heard by the City Commission.6 VIII. Applications for Tree Removal and Development Activity within Environmental Preservation Districts : Certificates of Approval A. General Procedures. Procedures for approving tree removal permits and Certificates of Approval shall be as set forth in Chapter 17, of the Miami City Code, entitled "Environmental Preservation," as amended. Standard Certificates of Approval shall be issued at the Staff level for certain approved minor alterations to properties within Environmental Preservation Districts or along Scenic Transportation Corridors. Special Certificates of Approval shall be issued by the Board for projects proposing major alterations or for appeals of Staff -level decisions. B. riling of Application. The completed Application for a Certificate of Approval shall be filed with the Preservation Officer. An Application for a Special Certificate of Approval shall be filed at least fifteen (15) twenty-eight (28) days prior to the Board meeting at which it is to be considered. All applications may be filed by the property owner, tenant, architect, contractor, or other agent, but applications for Special Certificates of Approval shall contain the signature of the property owner. C. Contents of Application. Applications for Certificates of Approval, Standard or Special, shall consist of information as summarized below and as set forth under Section 17-33 of the Miami City Code, as amended. For projects which have little effect to the existing landscaping and for which sufficient documentation can be provided to illustrate those conditions, some of the requirements listed below may be waived by the Preservation Officer. 1. Standard Certi ficates of Approval a. Activities Qualifying for Standard Certificates of Approval 6 Appeals shall be as prescribed by law including the City Code. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Battaglia Fruit Co. v. City of Maitland, 630 So.2d 940 (1988) 13 Fla. L. Weekly 1733 KeyCite Yellow Flag - Negative Treatment 414k1 185Enactment and Voting Distinguished by Cook County Republican Party v State Bd. of 414k1188Number of votes required Elections, Ill App, I Dist., December 17, 2007 (Formerly 414k198) 530 So.2d 940 414Zoning and Planning District Court of Appeal of Florida, Absence of county code provision under which Fifth District. tie vote would constitute final decision in zoning respect to tie votes did not violate any party's procedural matter did not require board of county BATTAGLIA FRUIT CO., etc., Petitioner, commissioners to follow generally accepted rule V. of parliamentary procedure under which tie vote The CITY OF MAITLAND, etc., et al., would be considered denial of rezoning Respondents. application, and board's failure to observe such Writ issued. general rule did not violate any party's No. 87-1296. procedural due process rights. U.S.C.A. Sharp, C.J., dissented and filed opinion. Const.Amends. 5, 14. July 21, 1988. authority to extend filing period. Laws 1963, Rehearings Denied Sept. 15, 1988. 2 Cases that cite this headnote City and homeowners' association filed petitions for certiorari review after board of county commissioners 121 Zoning and Planning approved application for rezoning. Upon consolidation of 4 Time for Proceedings petitions, a circuit court quashed board's decision, and applicant sought certiorari review. The District Court of 414Zoning and Planning Appeal, Orfinger, J., held that: (1) board's failure to 414XJudicial Review or Relief observe general rule of parlimentary procedure with 414X(B)Proccedings respect to tie votes did not violate any party's procedural 414kI604Time for Proceedings due process rights; (2) homeowners' association failed to 414kI605In general (Formerly 414k584.1, 414k584) timely invoke jurisdiction of circuit court; and (3) city (Formerly 414084.1, 414k584) lacked standing to file petition for certiorari. Homeowners' association's notice of intent to file petition for writ of certiorari in circuit court Writ issued. in zoning matter was untimely when filed 11 days after decision by board of county Sharp, C.J., dissented and filed opinion. commissioners, and circuit court lacked authority to extend filing period. Laws 1963, West Headnotes (6) Sp.Acts ch. 63-1716, § 1 et seq. I'I Constitutional Law Proceedings and review 2 Cases that cite this headnote Zoning and Planning 4,Number of votes required 92Constitutional Law 131 Zoning and Planning 92XXVIIDue Process Time for Proceedings 92XXVIl(G)Particular Issues and Applications 92XXVI1(G)3Property in General 414Zoning and Planning 92k409IZoning and Land Use 414XJudicial Review or Relief 92k4096Proceedings and review 414X(B)Proceedings (Formerly 92k278.2(2)) 414k1604Time for Proceedings 414Zoning and Planning 414kI605In general 414111 Modification or Amendment; Rezoning (Formerly 414084.1, 414k584) 414111(B)Proceedings to Modify or Amend WESTLAW > 2017 Thomson Reuters No clairn to original U S Governme,�t Works Battaglia Fruit Co. v. City of Maitland, 630 So.2d 940 (1988) 13 Fla. L. Weekly 1733 Homeowners' association's petition for writ of certiorari in circuit court in zoning matter was untimely when not filed within :30 days of hoard of county commissioners' decision. West's F.S.A. R.App.P.Rule 9.100(c). 1 Cases that cite this headnote 141 Zoning and Planning 6 -Modification or amendment 414Zoning and Planning 414XJudicial Review or Relief 414X(A)ln General 414k1584Right of Review; Standing 4141c I 587Modification or amendment (Formerly 414k571) City lacked standing to file petition for writ of certiorari in circuit court to challenge zoning decision by board of county commissioners; although county gave city notice of hearings concerning application for rezoning, and although city residents voiced opposition, no representative of city appeared or spoke against application, and, in conducting certiorari review, circuit court was limited to administrative record. 2 Cases that cite this headnote 151 Zoning and Planning 5. -Decisions of boards or officers in general 414Zoning and Planning 414XJudicial Review or Relief Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 161 Administrative Law and Procedure 4 -Substantial evidence 15AAdministrative Law and Procedure 15AVJudicial Review of Administrative Decisions 15AV(E)Particular Questions, Review of 15Ak784Fact Questions 15Ak791 Substantial evidence In reviewing action of county agency, circuit court is limited to determination of whether agency provided procedural due process, observed essential requirements of law, and whether its decision was supported by competent substantial evidence. 3 Cases that cite this headnote Attorneys and Law Firms *941 Scott E. Wilt of Maguire, Voorhis & Wells, P.A., Orlando, for petitioner. Lawrence M. Watson of Carlton, Fields, Emmanuel, Smith & Cutler, P.A., Orlando, for respondent Mark Cooper and Maitland Assoc. of Homeowners, Inc. Joseph A. Frein of Broad and Cassel, Maitland and Paul R. Gougelman, III of Reinman, Harrell, Silberhorn & Graham, Melbourne, for respondent City of Maitland. Opinion ORFINGER, Judge. 414X(C)Scope of Review The Orange County Board of County Commissioners 414X(C)I In General approved Battaglia Fruit Company's application for 414kl624Decisions of boards or officers in general rezoning of a 33.3 acre tract after finding that the (Formerly 414k605) proposed rezoning complied with the County's Growth Management Policy. A petition for writ of certiorari was In certiorari proceeding in zoning matter, circuit filed by the City of Maitland in the Circuit Court, Ninth court has no zoning powers, but can only review Judicial Circuit, and a similar petition for writ of certiorari administrative record of agency that has such was filed in the circuit court by Mark Cooper and the powers. Maitland Association of Homeowners, Inc.' These petitions were subsequently consolidated. The circuit court granted the consolidated petitions, and quashed the Cases that cite this headnote county commissioners' decision. Battaglia Fruit Company WESTLAW , ; 20 17 Thomson Reutei s No claim to original U 5 Government Works 2 Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 seeks certiorari review of the circuit court order. Battaglia's property is located in an unincorporated area of Orange County, near the City of Maitland. Battaglia's application requested a change in zoning from low density residential to a planned development that would allow professional offices and multifamily residential units to be built on the property. On October 21, 1985, a public hearing on Battaglia's application was held before the Board of County Commissioners: At that hearing, a motion was made and seconded to approve the application for rezoning; a 2-2 tie vote resulted. On October 28, 1985, the hearing was continued and the application was approved by a 3-2 vote. In their petitions for writ of certiorari filed with the circuit court, the City of Maitland and Maitland Association of Homeowners, Inc. argued that the initial tie vote should have constituted a binding denial of Battaglia's application. It was also argued that the rezoning was not consistent with the county's growth management policy and future land use policy guide map. Battaglia filed several motions to dismiss, which raised various grounds, including the arguments that Maitland Association's petition did not timely invoke the circuit court's jurisdiction, and that the City of Maitland lacked standing to file a petition for writ of certiorari in the circuit court. The circuit court refused to dismiss the petitions for writ of certiorari, ruling that petitioners demonstrated a preliminary basis for relief. In granting the consolidated petitions, the circuit court held that petitioners' due process rights had been violated by the *942 county commissioners' failure to abide by their initial tie vote on October 21, 1985, which under proper parliamentary procedure would have defeated the motion to approve Battaglia's application. Under the Orange County Code, an unsuccessful applicant must wait nine months before applying for another hearing concerning the same property; the circuit court reasoned that the 3-2 vote on October 28, 1985, violated this provision. The circuit court also held that the evidence before the county commissioners was insufficient to support their determination that the rezoning was consistent with the county's growth management policy. In the petition for writ of certiorari filed with this court, Battaglia once again alleges that the petition filed by Maitland Association was untimely, and that the City of Maitland lacked standing to file a petition for writ of certiorari. Battaglia also argues that the circuit court departed from the essential requirements of law in WESTLAW , 2-0 i-,- Thomson Reuters 1,lo da.im to Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk construing the tie vote as a binding denial of the rezoning application. I'1 Turning first to the controversy surrounding the county commissioners' initial tie vote, the Orange County Code does not contain a provision that a tie vote constitutes a final decision in a zoning matter. The circuit court stated that in the absence of a formal rule, a deliberative body must follow generally accepted rules of parliamentary procedure. We do not agree. Parliamentary rules not adopted as part of a governmental body's organic law may be waived or disregarded, and courts will not enforce their observance. See 59 Am.Jur.2d Parliamentary Law, § 4 (1987). The failure of the county commissioners to observe a general rule of parliamentary procedure did not violate any party's procedural due process rights. 121 131 We now turn to Battaglia's claim that Maitland Association failed to timely invoke the jurisdiction of the circuit court. The Orange County Zoning Code was established by a special act of the Florida Legislature. See Chapter 63-1716, Laws of Florida, Special Acts of 1963. Section 37-16 of the Code states that any person aggrieved by a decision of the county commissioners may file a petition for writ of certiorari in the Circuit Court of Orange County in the manner prescribed by the Florida appellate rules. Section 37-16 also states that a notice of intent to file a petition for writ of certiorari must be filed in the circuit court within ten days after rendition of the county commissioners' decision. The petition and transcript shall be filed in the circuit court within thirty days after rendition of the county commissioners' decision, except the circuit court may extend the time for filing the petition and transcript for good cause shown. The county commissioners' decision was rendered on October 28, 1985. Maitland Association's notice of intent was filed on November 8, 1985, eleven days later. The petition was filed on December 2, 1985, 35 days after rendition of the county commissioners' decision. Maitland Association alleged that an employee of the clerk's office in Orange County represented that the decision of the county commissioners had not been reduced to writing and had not been filed. The circuit court, in denying Battaglia's motion to dismiss, stated that "The delay in filing the writ [sic] was occasioned in part by an agent of defendant [the Board of County Commissioners]." Under the special act establishing the zoning code, the circuit court is not authorized to extend the 10 day period for the filing of the notice of intent. Maitland oriain�.! U S Government'A/or1:s Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 Association's notice of intent was untimely because it was filed one day late. Whereas the circuit court disregarded this infraction, we are not disposed to take such liberties with a procedural requirement enacted by the legislature. See Buck v. City of Hallandale, 85 So.2d 825 (Fla.]956). Maitland Association's petition for certiorari was also untimely. The remedy of statutory certiorari is independent and cumulative to common law certiorari. Common law certiorari is available if a statutory remedy fails. See Grady v. Lee County, 458 So.2d 1211 (Fla. 2d DCA 1984); G -W Development Corp. v. Village of North Palin Beach Zoning Board of Adjustment, 317 So.2d 828 (Fla. 4th DCA 1975). *943 However, Maitland Association did not file its petition for certiorari within the 30 day jurisdictional period established by the special act nor within the identical jurisdictional period for common law certiorari by Florida Rule of Appellate Procedure 9.100(c).' The circuit court departed from the essential requirements of law by not dismissing the petition for certiorari filed by Maitland Association. 141 We now address Battaglia's claim that the City of Maitland lacked standing to file a petition for certiorari. Orange County gave the City of Maitland notice of the hearings concerning Battaglia's application for rezoning. At these hearings, Maitland residents who lived in subdivisions near Battaglia's property voiced opposition, but no representative of the City of Maitland appeared or spoke against the application. The fact that the City was given notice of the county hearings would not automatically establish standing. See F & R Builders, Inc. v. Durant, 390 So.2d 784 (Fla. 3d DCA 1980). See also Renard v. Dade County, 261 So.2d 832, 837 (Fla.]972). The circuit court's certiorari review in this case was limited to the record below. See § 37-16, Orange County Code (Circuit court shall not conduct a trial de novo). The record before the circuit court was composed of the transcripts of the county hearings and exhibits considered by the county agencies and commission. The record before the circuit court did not demonstrate that the City of Maitland was a party aggrieved by the decision of the Board of County Commissioners, because the City never appeared or presented any evidence or objection. In its petition filed with the circuit court, the City of Maitland listed several interests that would be adversely affected by the planned development to demonstrate that it had a special interest exceeding the general interest of all citizens in the community. See generally Citizens Growth Management Coalition v. 144est Palm Beach, 450 So.2d 204, 208 (F1a.1984); Renard, supra. However, the City did not allege and prove the existence of those interests WESTLAW 0'1 % Tiioi�son f�euiers I !o clainn to Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk before the county agencies and commission considering Battaglia's application, so they were not part of the record before the circuit court. Therefore, the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing.' 151 Whatever objections the City of Maitland had to the proposed rezoning were never made to the agency which had the power to grant or deny the rezoning request. Its complaint that the planned development would burden its municipal services and require it to furnish additional police and fire protection was never presented to the Board of County Commissioners and there is no such evidence in the administrative record.' The first time any such allegation was made was in its petition to the circuit court, where it was made too late. In a certiorari proceeding the circuit court has no zoning powers but can only review the administrative record of the agency that has such powers. The dissent is in error when it says that the circuit court may hear an objection de novo. Not only does the legislative act which gives Orange County its zoning powers specifically prohibit de novo court review, but the law generally limits the authority of a reviewing court to the record made at the zoning hearing. *944 The administrative record in this case showed only that the property in question abuts Maitland's boundary. However, the City's proximity to the property would not in and of itself establish a legal interest adversely affected by the rezoning. 161 In reviewing the action of a county agency, the circuit court is limited to a determination of whether the agency provided procedural due process, observed the essential requirements of law and whether its decision is supported by competent substantial evidence. City of Deerfield Beach v. I aillant, 399 So.2d 1045 (Fla. 4th DCA 1981); affirmed, 419 So.2d 624 (Fla.1982); BAIL Investments v. City of Casselberry, 476 So.2d 713, 715 (Fla. 5th DCA 1985), review denied, 486 So.2d 595 (Fla.]986). The limitation on the review powers of the circuit court were clearly stated in Skaggs -Albertson's v. ABC Liquors, Inc., 363 So.2d 1082, 1091 (Fla.1978), where the court held that: The circuit court, therefore, transcended the scope of its certiorari review by substituting its judgment for that of the local zoning authority. Because zoning onainal U S Government V,Torl<.s Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 or rezoning is the function of the appropriate zoning authority and not the courts, the circuit court was not empowered to disapprove the finding of the Board unless the record was devoid of substantial competent evidence to support the Board's decision. [Footnote omitted]. The record before the Board of County Commissioners contains competent substantial evidence to support the county's actions. Perhaps the result would have been different had the City presented its evidence to that body, but having failed to do so, it should not have been permitted to present de novo evidence to the circuit court which had authority only to review what had been presented below. The circuit court order granting the consolidated petitions for certiorari filed by Maitland Association and the City of Maitland is quashed. WRIT ISSUED. DAUKSCH, J., concurs. SHARP, C.J., dissents with opinion. SHARP, Chief Judge, dissenting. I disagree that the City of Maitland failed to establish in this record sufficient standing to challenge the rezoning of petitioner's land; and I do not think the Maitland Association of Homeowners, Inc. should be foreclosed from seeking review under the Orange County Zoning Code.' Since one or both of the respondents properly sought review of the rezoning in the circuit court, I reach the merits of the rezoning issue, and conclude that the trial court should be affirmed. The rezoning was contrary to the Orange County Comprehensive Zoning Plan, and the County Commission did not follow the proper procedures to amend the zoning plan. I. STANDING: CITY OF MAITLAND Pursuant to the Orange County Zoning Act, "Any person aggrieved by the board of county commissioner's Submitted into the public Record for item(s)_ On 05-25-2017. PZ.15 City Clerk decision ... may file a petition for writ of certiorari ... in the circuit court of Orange County...." (Ch. 71-795 sec. 16). This language is similar to the provisions in section 163.3215(l), Florida Statutes (1985). However, the express provision, which defines an "aggrieved party" as: [A]ny person or local government which will suffer an adverse effect to an interest protected or furthered by a local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources became effective shortly after Battaglia filed its application for rezoning, and therefore is not strictly applicable to this case. *945 Nevertheless, it appears to me the statutory language is primarily derived from case law which clearly can be applied to this case. To challenge a rezoning decision, it is no longer necessary to prove special damages as was required in nuisance suits, one of the sources of zoning law. It is only necessary to establish that some kind of legally protected interest of the challenging party will be potentially affected by the decision. Renard v. Dade County, 261 So.2d 832 (F1a.1972). This interest must exceed the general interest shared by all members of the community. Citizens Growth Management Coalition v. 14,'est Palm Beach, 450 So.2d 204 (Fla.]984). Standing is generally established by considerations such as the proximity of the rezoned land to the challenger's lands, the character of the neighborhood and the anticipated effect on it of the rezoning. Renard at 837. Where spot -zoning is the basic challenge to the rezoning, proximate and adjacent landowners and even those a mile or more away, if affected by the new zoning, have standing to contest the issue. See Exchange Investments, Inc. v. Alachua County, 481 So.2d 1223 (Fla. 1st DCA 1985); SW Ranches Home Owners Association, Inc. v. County of Broward, 502 So.2d 931 (Fla. 4th DCA), rev. den., 511 So.2d 999 (F1a.1987); Albright v. Hensley, 492 So.2d 852 (Fla. 5th DCA 1986); Wager v. City of Green Cove Springs, 261 So.2d 827 (Fla.1972); "Standing to Appeal Zoning Determinations: The `Aggrieved Person' Requirement," 64 Mich.L.Rev. 1070, 1079 (1965-1966). Courts also recognize that city and county boundaries WESIL, VV 20 i 7, Tail- nI son Feute:s No daim :o or!c,ricl U S Government \/corks Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla L. Weekly 1733 have become irrelevant in determining standing, as a local zoning decision may have impact far beyond the entity's borders. Annot. 69 A.L.R.3d 805; Anderson, 4 American Law of Zoning 3d (1986) § 24.01. It is also clear that the better view is that cities, counties, or other local governmental agencies may be "aggrieved persons" within the scope of applicable statutes permitting appeals from zoning decisions.' The court in Ruegg v. Board of County Commissioners, Clackamas County, 32 Or.App. 77, 573 P.2d 740 (1978), held that a neighboring city had standing to contest the county's rezoning of lands in the county because the rezoning undermined the city's planning efforts and would adversely affect its downtown development. It said: In view of the interrelationship between the county's and the city's land use planning, the proximity of the city's boundaries to the subject property, and the trend in the law to extend standing in land use cases to persons other than those who own contiguous property, [citations omitted] the city should have been permitted to appear as a party in this proceeding. Ruegg, 573 P.2d at 742. Neighboring cities and counties such as Maitland and Orange County, are required to cooperate in regional planning, both under the Special Act and state law.' In a reverse situation, the County of Pinellas was allowed to challenge rezoning of lands in the City of Gulfport.' The majority opinion takes the view that because Maitland did not appear in the zoning proceedings before the county commissioners and other county bodies, it failed to establish its standing or right to challenge the zoning decision in the circuit court. I submit that the special zoning act authorizing certiorari review of zoning decisions does not limit such right of review solely to persons who appeared or were parties in the rezoning process. The interpretation of "aggrieved party" under the Special Act, and under statutory law, means much more than merely a party who attends the administrative proceedings.' As discussed above, standing in this context means proximity and affect or impact *946 on a legal interest. Surface Water Management Permit No. 50-01420-S v. Florida Land and Water Adjudicalwy Comm., 515 So.2d 1288 (Fla. 4th DCA 1987); rev. den., 525 So.2d 876 (Fla.1988); Carlos Estates, 1nc,•. v. Dude County, 426 So.2d 1167 (Fla. 3d DCA 1983). Further, the majority assumes that Maitland had to have appeared in the rezoning proceedings below in order to have established its right of standing, because the method WESTLAW j 2Ci7 Tl��o,rison ReL!ters I\Io clavi io ongmal Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk of review in the circuit court is limited to certiorari, and that court (as well as this one) can only consider the record sent to it from the administrative proceedings. I am not convinced that a party seeking to challenge a rezoning decision cannot by proper allegations and proofs in the circuit court, de novo as it were, establish his right to bring that action.' In other certiorari proceedings like this one when the standing challenge is raised, courts have resolved this question by examining the "allegations" of the challenger's complaint filed in the case with the court. See 1,Vager, 261 So.2d 827 (F1a.1972); Exchange Investments. The allegations in Maitland's petition filed with the circuit court in this cause abundantly established Maitland's standing as an "aggrieved party." Maitland alleged that the rezoning in question would have a material effect on the city, and the abutting lands within the city, because this rezoned thirty-three acres was an enclave surrounded on three sides by the City of Maitland. It also alleged that the planned development would burden Maitland's municipal services, and require it to furnish police and fire protection. It further alleged that the traffic from the development would impact the city and its streets because the rezoned property's sole access was through the downtown area of Maitland. I assume all these matters were proven to the satisfaction of the circuit court which heard this matter, and ruled accordingly. This hearing was apparently not reported. But even if it is necessary to disregard the allegations of Maitland's petition regarding standing and any proofs it may have offered at the hearing, I submit that the proximity and interrelationship of Maitland to the rezoned property is adequately established by the record before the administrative bodies. Accordingly, Maitland's status as an "aggrieved party" is clear on the certiorari record before us, if anyone chooses to read it. The following is a summary. The physical location of the rezoned land, surrounded on three sides by Maitland, was repeatedly shown by maps, exhibits and testimony. There was testimony concerning ingress and egress onto Maitland's roads, and the necessity to add turn lanes and lights in order to handle the anticipated traffic impact of the development. It was pointed out that the commercial office building part of the development could only be accessed by Maitland Boulevard, and downtown Maitland. The county staff recommended against the rezoning because it is inconsistent not only with Orange County's U S Government'A/01-1;s 6 Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 Growth Management Plan, but Maitland's as well. Both Orange County's and Maitland's plans restrict high density commercial development to lands west of I-4; and keep lands east of I-4 where this property is located as low density residential zones. Surrounding the rezoned land are Maitland's low density residential areas. This enclave is the only county land along Maitland Boulevard, East of I-4. All the rest is in Maitland. Efforts are made by Orange County to coordinate land use planning with cities when they share mutual boundaries. The original zoning on this property was consistent with both entities' plans. This change is not. Nor was any coordination with Maitland undertaken prior to the rezoning. *947 The county commissioners were aware that Maitland viewed this enclave of county land as land it planned to annex in the future. Commissioner Carter stated at the only evidentiary hearing before the commission that only two months prior to the rezoning proceeding, Orange County officials had met with Maitland's officials and assured them that the enclave would be their "urban expansion area." Maitland told them they wanted the enclave zoned residential. Commissioner Carter stressed that the proposed high density development would adversely impact Maitland and its future planning. II. TIMELINESS OF THE MAITLAND ASSOCIATION OF HOMEOWNER'S CERTIORARI PETITION As the majority opinion points out, the Association's certiorari petition was five days late in being filed in the circuit court; and its notice of intent to sue required by section 16, Chapter 71-795 (Orange County Special Act) was one day late. A motion to dismiss was filed raising both grounds, and a hearing was apparently held, although not reported. In a written order the circuit court denied the motion because it found that the delay in filing was caused in part by the county. At a later reported hearing, the trial judge said he considered the notice and petition timely because: [T]here was good faith reliance, on behalf of the complainants, of the representations made by an agent of the clerk's office in Orange County that this [the decision] had not been filed, [when it had been Submitted into the public Record for item(s) On 05-25-2017 filed]. PZ.15 City Clerk Filing is the critical act which triggers both time periods under section 16. See Koirch v. Board of County Commissioners, 467 So.2d 340 (Fla. 5th DCA 1985). Clearly, the ordinance gives the circuit court authority to extend the 30 -day time period to file the petition, which it did in this case. Although not expressly applicable to the 10 -day notice provision, this extension power of the circuit court must, in my view, apply to the notice as well. Of what value is the court's power to extend the longer time period, if the shorter one cannot be extended or ignored as not jurisdictional? See Anderson 4 American Laiv of Zoning 3d (1986) § 27.24. If a party misses the longer time barrier, he will almost certainly have missed the shorter one. Further, as in this case, where the court finds that the delays are attributable to the county, some remedy analogous to rule 1.540 should be available to the aggrieved party. See Neil) Washington Heights Community Development Conference v. Department of Community Affairs, 515 So.2d 328 (Fla. 3rd DCA 1987). This extension provision should be employed to give such relief, in these administrative proceedings. III. MERITS OF THE REZONING ISSUE The certiorari record (no de novo evidence was presented to the trial court on the merits of the rezoning) establishes the following facts! The Battaglia property involved in this case is a 33.3 acre enclave of Orange County unincorporated land, surrounded on three sides by lands in the City of Maitland. For many years a producing citrus grove, it was burned out by recent winter freezes, and is now essentially vacant. It is the only Orange County property east of I-4 (a major interstate highway) along Maitland Boulevard. All the rest of the property along this boulevard lies within Maitland. Maitland Boulevard runs along the north of the Battaglia land. It is a four -lane *948 state road which runs through the center of Maitland and crosses I-4 to the west. South of the property, Sandspur Road, a two-lane street serves the residential neighborhoods to the immediate south, east and west of this land. Along Maitland Boulevard, running east from I-4 to downtown Maitland, commercial usage has not been allowed. There is only low density residential WESTLAW '01, TlO!-inso1 FleLilei-s 1v1O cie,;m is o:!ci Efl U S GoverrllllFlll Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 development, except for a church, a school and community center, and one single office professional building, which is set far back from the Boulevard. High density commercial and office building developments have been restricted to areas west of I-4. The Battaglia land was zoned R -IAA in 1957. This is a single-family, low density category, which permits at the most 4.4 dwelling units per acre. The lands surrounding the Battaglia property are also zoned low density residential. This zoning is consistent with growth management policies and plans of both Maitland and Orange County. Orange County's plan was adopted in 1980, and readopted in August of 1985, pursuant to section 163.3161." Both zoning plans show the Battaglia land as a low density residential area. Battaglia sought to change the zoning on its 33.3 acres by obtaining county approval of a planned unit development, which combines commercial office space and multifamily apartments. The plan shows 28 acres will be used to construct 240,000 square feet of office space, plus parking. Ingress and egress from the office development will be onto Maitland Boulevard. The *949 traffic will require the addition of lanes to Maitland Boulevard and a traffic signal. The remaining five acres will be used to construct apartments, with a density of ten dwelling units per acre. Access to this portion of the property will be onto Sandspur Road. The Orange County Development Review Committee, charged with the function of reviewing applications for zoning changes, for consistency with the comprehensive plans,"' recommended against the Battaglia application. It found the planned unit development (P.U.D.) was inconsistent with Orange County's Growth Management Plan, Maitland's Comprehensive Plan, and that it was incompatible with the surrounding existing residential areas. At the planning and zoning commission level, testimony concerning the proposed development and the anticipated impact on the neighborhood was presented. The developer's representatives minimized the traffic and other impact the planned unit development would have on Maitland and its residential neighborhoods. Representatives from subdivision associations, encompassing 1,000 residences, spoke against the P.U.D. The meeting was so large it was held at the Maitland City Hall. Some residents pointed out that they opposed any commercial zoning along the Boulevard, fearing a domino effect, and that the area logically should be included in Maitland. Many Maitland residents wanted to have the WESTLAW , 20 17 Thomson F&,rLe! s No claim <o Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk area used for a city park. Without any finding that the proposed development was consistent with Orange County's Comprehensive Plan, the Planning and Zoning Board approved it, subject to various conditions, including walls and landscaping. On October 21, 1985, the county commissioners considered the rezoning application. The planning department staff recommended against it because it was inconsistent with Orange County's and Maitland's Growth Management Plans, incompatible with the surrounding and adjacent single-family residential development, and because it would set a precedent for allowing commercial development along Maitland Boulevard east of I4" At this hearing, the developer's attorney and planning witnesses presented the project, and explained how it would not adversely impact Maitland's surrounding residential areas. They argued that professional offices are not incompatible with residential use. In opposition were representatives of more than 1,000 homeowners. They stressed there was commercial use only east of 1-4 of on Maitland Boulevard and that it would impact the city's police and fire services, traffic problems, and would lead to more commercial development along Maitland Boulevard to the east of I-4. The developer argued that putting office buildings along major arterial streets is an element of Orange County's Comprehensive Plan. This is one of 14 general planning principles contained in Orange County's Plan. Maitland is such an arterial street. Therefore, the developer argues the project was in fact "consistent" with Orange County's Growth Management Plan. Other Orange County "policies" of equal standing with this one relied upon by the developer militates against this rezoning. For example, two provide that commercial and industrial uses should not be allowed to encroach on established residential areas. The developer also argued that the land use map which showed the area as residential, was not a part of Orange County's Plan. It is not clear why the Orange County Board of Commissioners ultimately voted" to approve the P.U.D. rezoning. It may have been because of the generalized policy *950 singled out by the developers of putting offices on arterial streets. Or, it may have been a misapprehension on the part of threc of the county commissioners that the county plan was so flexible it could be changed in this manner; or that the P.U.D. was so well planned that it was not inconsistent with the comprehensive plan. In any case, I agree with the trial judge that the P.U.D. proposed here is clearly inconsistent orioinal U S Governmc-.int 1'JorFa Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 with Orange County's Growth Management Plan Orange County's special zoning act provides that all development orders shall be "consistent with the growth management policy" (Sec. 37-85). It further defines what is meant by "consistency:" "Development proposals and development orders should be deemed consistent with the growth management policy if such proposals or orders involving equal or lesser intensity or density than projected by the policy for the area, ensure compatibility with surrounding land uses, generally conform to specific area or neighborhood studies or other development policies adopted from time to time by the board, and conform generally with the overall spirit and intent of the policies of the growth management policy." (emphasis supplied) (§ 37-85(C)). Since the density and intensity of the P.U.D. is much greater than projected by the current plan, the rezoning is per se inconsistent with Orange County's plan. Further, it is clear that the future use map adopted by the Board pursuant to section 37-87, which establishes this area as residential, is a vital element of the plan. A4achado v. Musgrove, 519 So.2d 629 (Fla. 3d DCA 1987) (land use color coded map held to be an element of the Dade County Comprehensive Plan). Section 37-87 says the map "is intended to be a visual representation of the goals, objections and policies contained in the growth management policy and of the proposed general distribution location and extent of the uses of land." Without a comprehensive map or plan as a part of its policy, it is doubtful that Orange County would be in compliance with the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act (Ch. 163) § 163.3177. The fourteen generalized planning principles, urged as Orange County's Plan by the developer, would clearly be insufficient. See also, Machado, supra. Pursuant to both the local act, § 37-87, and the state law, § 163.323 1, all development decisions must be consistent with the comprehensive plan. If it is not, then the rezoning change can only be made after the required procedures to change the plan have been followed. § 163.3194(1)(a); 1 Florida Real Property Practice Service, § 3.03 at 37-38; Yokley, 1 Zoning Law and Practice (1978) § 5-6. Admittedly, no effort by Orange County was made in this case to amend its Comprehensive Growth Management Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Plan. Nor was any effort made by Orange County to coordinate the rezoning with the City of Maitland, despite the mandates of section 163.3161, Chapter 163, and section 37-82, Special Act. Since the adoption of the Local Government Comprehensive Planning and Land Development Regulation Act, in 1975, (Ch. 163) and its implementation through the required adoption of growth management policies and plans by local governments, the standard of review by courts of zoning decisions has changed dramatically. The prior well established "fairly debatable standard" which accorded the zoning authority a wide range of discretion, [see Skaggs-Alberlson's v. ABC Liquor, Inc., 363 So.2d 1082 (Fla.1978); Alai -ell v. Hardy, 450 So.2d 1207 (Fla. 4th DCA 1984); Broward Counly v. Capelelti Bros. Inc., 375 So.2d 313 (Fla. 4th DCA 1979), cert. den., 385 So.2d 755 (F1a.1980); Shaughnessy v. Metropolitan Dade Counly, 238 So.2d 466 (Fla. 3d DCA 1970) ] has been limited by these new laws. 1 Florida Real Property Practice Service § 1.01.13.3 at 17; Machado. This standard, relied upon in the majority opinion, is no longer applicable when the issue is that the rezoning is inconsistent *951 with a comprehensive plan. Machado. "[A] zoning action not in accordance with a comprehensive plan is ultra vires." Machado at 632. Zoning decisions must now be made within the guidelines and dictates of the comprehensive plans.'' In reviewing zoning decisions, a court is charged with the responsibility of determining that the zoning decision is consistent with the comprehensive plan, or that the plan has been duly amended to allow the zoning to be consistent.' In so doing, zoning decisions are held by reviewing courts to strict scrutiny when the change is apparently inconsistent with the plan." This court in City of Cape Canaveral v. Alosher, 467 So.2d 468 (Fla. 5th DCA 1985) held that a zoning change inconsistent with a duly adopted comprehensive plan could not be sustained. Summary judgment for the land owner was affirmed because the city admitted it failed to give the landowners notice of the rezoning, the rezoning was not consistent with the comprehensive plan, and it was not reasonable. Judge Cowart concurring specially said he would have reached the same result simply because the rezoning was inconsistent with the plan, although the rezoning was to be a less intensive use or density. This view was adopted by our sister court in Machado. Other district courts apparently take the view that if the WESTLAW 17 Thornson IJo claim Lo onpriDi U S Government 1A)oi1,_s Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 rezoning is to a lesser intensity or density, the fairly debatable standard applies. In such a case, the zoning entity is not held to a strict scrutiny test regarding consistency with its plan and it is accorded a broader discretion. See Southwesi Ranches Homeowners Assn. v. Broivard County, 502 So.2d 931 (Fla. 4th DCA), rev. den., 511 So.2d 999 (Fla.1987); City of Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA 1984), rev. den. 469 So.2d 749 (F1a.1985). However, this case involves rezoning to a greater intensity or density. Thus we need not resolve any area of potential conflict with our decision and those of our sister courts. Under all current Florida district court views, the zoning change in this case is subject to the strict scrutiny test -not the fairly debateable one. It appears to me that the trial judge correctly applied the existent law and recent controlling decisions to the facts Footnotes Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk presented in the record before him. His conclusions that the rezoning is inconsistent with the Orange County Comprehensive Growth Management Plan is a fair one and it is more than adequately supported by the record. Frankly, there is almost no basis in this record from which one could conclude that the P.U.D. is "consistent" with the comprehensive plan. See Hall v. Kath, 244 So.2d 766 (Fla. 3d DCA 1971). Since we cannot as a district court grant a second "certiorari review", and second-guess the circuit judges in such cases," we should affirm his decision and deny this petition for writ of certiorari." All Citations 530 So.2d 940, 13 Fla. L. Weekly 1733 Respondents Mark Cooper and the Maitland Association of Homeowners, Inc., will be collectively referred to as the "Maitland Association." Petitioner Battaglia Fruit Co. will be referred to as "Battaglia." 2 The County's Planning and Zoning Commission recommended to the Board of County Commissioners the approval of the planned development, notwithstanding a recommendation to that Commission by the Development Review Committee that the proposal be rejected. 3 Assuming, without deciding, the power of the legislature to permit the circuit court to extend the time for seeking statutory certiorari (But see Article V, Section 2, Florida Constitution, which gives to the supreme court the exclusive power to adopt rules of procedure in all courts, including the time for seeking appellate review), there is nothing in the record to disclose that Maitland Association ever applied for or that the circuit court ever granted an extension of time for filing the petition. 4 Section 163.3215, Florida Statutes (1985), which authorizes an action for injunctive or other relief to enforce a local comprehensive plan is not applicable as Battaglia filed its application before July 1, 1985. See § 163 3215(3)(a), Fla.Stat. (1985). 5 On the contrary, there was expert testimony presented to the Board of County Commissioners that the traffic impact of the planned development would be less than if the property were fully developed for residential purposes. t Established by a special act of the Florida Legislature. See Chapter 63-1716, Laws of Florida, Special Acts 1963. 2 § 163.3215(2), Fla.Stat. (1985), effective July 1, 1985. 3 Anderson, 4 American Law of Zoning 3d (1986) § 27.20. 4 § 163.3167, Fla.Stat. (1985); Ord. 37-82 1 -II; Borough of Cresskill v. Borough of Dumont, 28 N.J.Super. 26, 100 A.2d 182 (1953); affirmed 15 N.J. 238, 104 A.2d 441 (1954). 5 Pinellas County v. City of Gulfport, 458 So.2d 436 (Fla. 2d DCA 1984). WESTLAW , 201 7 Thomson Reuters No claim to oriainal U S Government Works Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 6 Anderson 4 American Law of Zoning 3d (1986) § 27.10. Note, that, an individual need not, in all cases, be a party to a proceeding to obtain certiorari review so long as he has sufficient interest in the subject matter of the challenged order. See generally State ex rel. Boyles v. Parole and Probation Comm., 436 So.2d 207 (Fla. 1st DCA 1983). 8 Contrary to statements in the majority opinion, the record before us and the trial court is strictly proper in a certiorari case. It is composed of the administrative hearings and trial court pleadings. The only "de novo " matters are in Maitland's pleadings, in an attempt to establish its standing to appeal. If a hearing was held on those allegations, it was not recorded, and it is not a part of this record. Maitland did not, nor was it permitted to present de novo evidence to the circuit court on the merits of the rezoning issue. In all fairness, if this case must be reversed, it should not be reversed because of any improprieties regarding the certiorari record. 9 Section 163.3161, Florida Statutes, states: 163.3161 Short title; intent and purpose. - (1) This part shall be known and may be cited as the 'Local Government Comprehensive Planning and Land Development Regulation Act.' (2) In conformity with, and in furtherance of, the purpose of the Florida Environmental Land and Water Management Act of 1972, chapter 380, it is the purpose of this act to utilize and strengthen the existing role, processes, and powers of local governments in the establishment and implementation of comprehensive planning programs to guide and control future development. (3) It is the intent of this act that its adoption is necessary so that local governments can preserve and enhance present advantages; encourage the most appropriate use of land, water, and resources, consistent with the public interest; overcome present handicaps; and deal effectively with future problems that may result from the use and development of land within their jurisdictions. Through the process of comprehensive planning, it is intended that units of local government can preserve, promote, protect, and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare; prevent the overcrowding of land and avoid undue concentration of population; facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, housing, and other requirements and services; and conserve, develop, utilize, and protect natural resources within their jurisdictions. (4) It is the intent of this act to encourage and assure cooperation between and among municipalities and counties and to encourage and assure coordination of planning and development activities of units of local government with the planning activities of regional agencies and state government in accord with applicable provisions of law. (5) It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act. (6) It is the intent of this act that the activities of units of local government in the preparation and adoption of comprehensive plans, or elements or portions therefor, shall be conducted in conformity with the provisions of this act. (7) The provisions of this act in their interpretation and application are declared to be the minimum requirements necessary to accomplish the stated intent, purposes, and objectives of this act; to protect human, environmental, social, and economic resources; and to maintain, through orderly growth and development, the character and stability of present and future land use and development in this state. (8) It is the intent of the Legislature that the repeal of sections 163.160 through 163.315 by section 19 of chapter 85-55, Laws of Florida, shall not be interpreted to limit or restrict the powers of municipal or county officials, but shall be interpreted as a recognition of their broad statutory and constitutional powers to plan for and regulate the use of land. It is further, the intent of the Legislature to reconfirm that sections 163 3161 through 163.3215 have provided and do provide the necessary statutory direction and basis for municipal and county officials to carry out their comprehensive planning and land development regulation powers, duties, and responsibilities. 10 § 163.3194, Fla.Stat. (1985). 11 While staff recommendations by the planning department of a zoning entity are not binding on the zoning authority, they are due great weight, particularly when the Comprehensive Planning Act is involved. 1 Florida Real Property Practice Service § 1.01.13.3 at 19. WESTLAW .UI, Iijoinsor1R—utClS IJOcl!Fr11iC.U, ItV,/o1ks Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (1988) 13 Fla. L. Weekly 1733 12 The final vote to approve rezoning came a week after the hearing when a fifth commissioner appeared to break the two to two tie vote. No additional evidence was taken at that meeting. As irregular as it was, I agree with the majority that there is no procedural ground for a court to reverse this rezoning vote. 13 Yokley, 1 Zoning Law & Practice (1978) § 5-2. 14 Anderson, 4 American Law of Zoning 3d, (1986) § 23.14; 40 A.L.R.3d 372 Requirement That Variations or Exceptions Be Made In Accordance With Comprehensive Plan § 163.3194(4)(a). 15 40 A.L.R.3d 372, at 392; see Norwood -Norland Homeowners Assn. v. Dade County, 511 So.2d 1009 (Fla. 3d DCA 1987), rev. den., 520 So.2d 585 (Fla. 1988). 16 Norwood -Norland Homeowners Assn. v. Dade County, 511 So.2d 1009 (Fla. 3d DCA 1987), rev, den., 520 So.2d 585 (Fla.1988). 1 Florida Real Property Practice Service, Ch. 5, p. 37; Chicken `n Things v. Murray, 329 So.2d 302 (Fla. 1976). 17 Machado v. Musgrove, 519 So.2d 629 (Fla. 3d DCA 1987). © 2017 Thomson Reuters. No claim to original U S. Gover nment Works. WESTLAW (0 2017 Thoninson Reuters No claim to original U S Government Works 12 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (1978) 354 So.2d 57 Supreme Court of Florida. Due process requires that an affected landowner be given prior notice and an opportunity to be GULF & EASTERN DEVELOPMENT heard before action is taken by a zoning CORPORATION, Petitioner, authority to alter use to which the owner is V. permitted to put his land. CITY OF FORT LAUDERDALE, a Municipal Corporation, and Calvin Howe, Director of Building and Zoning for the City of Fort 6 Cases that cite this headnote Lauderdale, Respondents. No. 49619. 121 Zoning and Planning Jan. 12, 1978. 4—Nature in general 414Zoning and Planning Property owners filed complaint seeking to enjoin city 4141In General from rezoning the property and to require city officials to 414kI000Nature in general issue building permit. The Circuit Court, Broward (Formerly 414k4) County, George Richardson, Jr., J., declared ordinance invalid, and appeal was taken. The District Court of Zoning is a legislative function which reposes Appeal, 332 So.2d 88, reversed and remanded. Petition ultimately in the governing authority of a for writ of certiorari was filed. The Supreme Court, municipality. Sundberg, J., held that: (1) due process required that landowners be given notice and opportunity to be heard at 1 Cases that cite this headnote planning and zoning board stage of rezoning process where under city ordinance the board enjoyed de facto interim zoning authority and much, if not all, of the fact-finding, discretion, and consideration with respect to 131 Constitutional Law merits or demerits of a zoning change were accomplished 4 --Proceedings and review at the zoning board level, notwithstanding that board's recommendation was not binding on city commission and 92 Constitutional Law (2) even if city were not constitutionally and statutorily 92XXV11Due Process obligated to notify an affected landowner and afford an 92XXV11(G)Particular Issues and Applications owner a hearing, the city was bound by the notice and 92XXV11(G)3Property in General hearing requirements of its charter and ordinances. 92k409IZoning and Land Use 92k4096Proceedings and review Petition granted; decision of District Court of Appeal (Formerly 92k278.2(2), 92k278(1)) quashed and cause remanded with instructions. Due process required that a landowner be afforded notice and opportunity to be heard at West Headnotes (4) planning and zoning board stage of the zoning 0] Constitutional Law process where under city ordinance such board ,6, -Proceedings and review enjoyed a de facto interim zoning authority, in that once the board recommended a zoning 92Constitutional Law change from a less to a more restrictive use the 92XXV11Due Process building department was prohibited from issuing 92XXV11(G)Particular Issues and Applications a permit for a use not permitted in the more 92XXVI1(G)3Property in General restrictive district, and much, if not all, the 92k409IZoning and Land Use fact-finding, discretion and consideration with 92k4096Proceedings and review respect to merits of a zone change were (Formerly 92k278.2(2), 92k278(1)) accomplished at the board level; board WESTLAW 20 i7 Thomson Re,ite! s. I,do claiw to or!oinal U S Government Works Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (1978) constituted a "municipal zoning authority" within meaning of notice statute, notwithstanding that its recommendations were not binding. West's F.S.A. § 286.011; F.S.1971, § 176.05](1). 3 Cases that cite this headnote 141 Zoning and Planning 4—Notice and Hearing 414Zoning and Planning 41411IModification or Amendment; Rezoning 414111(B)Proceedings to Modify or Amend 414k1179Notice and Hearing 414k] 1801n general (Formerly 414k194.1, 414kl94) Even if city was not statutorily or constitutionally obliged to afford property owners notice of proposed zoning change, the city was bound by procedural requirements imposed in its charter and ordinances; city could not renege on its promise to give notice any more than could one of its private citizens. West's F.S.A. § 286.011; F.S.1971, § 176.051(1). 3 Cases that cite this headnote Attorneys and Law Firms *58 Terrence J. Russell and Steven J. Gutter of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for petitioner. W. W. Caldwell, Jr. and Donald R. Hall, Fort Lauderdale, for respondents. Opinion SUNDBERG, Justice. This matter comes before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 332 So.2d 88. It is Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk alleged that the decision in the instant case is in direct conflict with numerous decisions of this Court and other district courts of appeal upon the issue of whether notice to an affected landowner of a hearing before a planning and zoning board to consider the rezoning of a parcel of real property is essential to the validity of an ordinance rezoning such property, subsequently enacted by a city commission, based upon the recommendation of the planning and zoning board.' We find such conflict to exist and, therefore, we have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. While petitioner raises five points for our consideration, we believe the points respecting notice are dispositive of the case and will limit our discussion and decision to that issue. On March 27, 1973, pursuant to Section 47-32.5, Fort Lauderdale Code of Ordinances, various individuals owning real property in proximity to a tract of land owned by the petitioner's predecessors in title, described as Parcel D, Harbour Beach Extension, filed an application with the Fort Lauderdale Planning and Zoning Board' for the rezoning of Parcel D from R-4/RM60 to R-3-A/RM25. A public hearing on the rezoning proposal was held before the Fort Lauderdale Planning and Zoning Board on April 18, 1973. After the hearing, the Planning and Zoning Board entered its recommendation to the City Commission that Parcel D be rezoned from R-4/RM60 to R-3-A/RM25. On May 15, 1973, the Fort Lauderdale City Commission held a public hearing on Ordinance No. C-73-45; this ordinance by its terms provided for rezoning of Parcel D, Harbour Beach Extension, in conformity with the Planning and Zoning Board's recommendation. Petitioner, which had on April 6, 1973, purchased property situated within Parcel D, appeared at the City Commission hearing and objected to the fact that it had not been notified by the city of the rezoning proposal and the April 18, 1973 Planning and Zoning Board hearing thereon.' Notwithstanding petitioner's objection, *59 the City Commission passed Ordinance No. C-73-45 upon first reading. The ordinance was subsequently enacted by the City Commission on June 19, 1973, at the second and third readings of the ordinance. On May 18, 1973, petitioner filed a complaint in Circuit Court for Broward County, Florida, seeking (i) to temporarily and permanently enjoin the City of Fort Lauderdale from rezoning its property, and (ii) to require respondents to issue petitioner a building permit for use of WESTLAW 20'I T Thom on REUteis [\,o clsim to onginal U S Gcvernment Woi*s Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (1978) its property consistent with R-4/RM60 zoning. The trial court denied petitioner's application for a temporary injunction. After Ordinance No. C-73-45 was enacted by the City Commission, however, petitioner supplemented its complaint, seeking to have the ordinance declared invalid and to have the City of Fort Lauderdale enjoined from enforcing the ordinance. At final hearing the circuit court found that petitioner had not been notified by the city of the rezoning proposal and the April 18 Planning and Zoning Board hearing thereon, as required by Section 47-32.7, Fort Lauderdale Code of Ordinances. Therefore, the trial court entered final judgment declaring the ordinance invalid and permanently enjoining the city from enforcing the ordinance. On appeal to the District Court of Appeal, Fourth District, respondents contended that Ordinance No. C-73-45 was valid and effective notwithstanding the city's failure to notify petitioner of the rezoning proposal and the April 18 Planning and Zoning Board hearing thereon. Relying on F. P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141 (1973), cert. denied 414 U.S. 825, 94 S.Ct. 129, 38 L.Ed.2d 59 (1973), the district court agreed with respondents upon the premise that the planning and zoning board was only a recommendatory authority and, so long as an affected landowner had an opportunity to be heard before the governing authority (the City Commission), the landowner was not deprived of procedural due process. Accordingly, the district court reversed and remanded with directions to enter final judgment in favor of the respondents. This petition for certiorari ensued. We find that the function and authority of the Planning and Zoning Board pursuant to the charter and ordinances of the City of Fort Lauderdale exceeds that of a mere recommendatory body, and that the failure to notify petitioner of the meeting violates the very provisions of the city's ordinances. Consequently, we are compelled to quash the decision of the District Court of Appeal, Fourth District. 111 It is without question that due process requires that an affected landowner be given prior notice and an opportunity to be heard before action is taken by a zoning authority to alter the use to which the owner is permitted to put his land. See City of Ft. Lauderdale v. Gulf & Eastern Development Corporation, 332 So.2d 88 (Fla. 4th DCA 1976); Bal Harbour Village v. State ex rel. Giblin and F. P. Plaza, Inc. v. Waite, supra. Cf. Rowland v. State, 129 Fla. 662, 176 So. 545 (1937) (condemnation of private property). The crux of the issue, however, is at what stage of the proceedings must the owner be notified and be given an opportunity to be heard. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 121 131 Zoning is a legislative function which reposes ultimately in the governing authority of a municipality. See Josephson v. Autrey, et al., 96 So.2d 784, 788 (F1a.1957). However, as with most municipalities, the charter and ordinances of the City of Fort Lauderdale have delegated some portions of the zoning process to an independent board. The question is: Has a sufficient portion of the process been delegated to the board so as to necessitate notice and an opportunity to be heard before the Planning and Zoning Board, in order to meet the requirement of due process? Respondents maintain not. As authority for their position they rely upon F. P. Plaza, Inc. v. Waite, supra. We believe this position to be in error for two reasons. First, by Section 47-32.5(h), Fort Lauderdale *60 Code of Ordinances,' the Fort Lauderdale Planning and Zoning Board enjoys de facto interim zoning authority. Once the Board recommends to the City Commission that the zoning on a parcel of land be changed from a less restrictive to a more restrictive use, the building department is prohibited from issuing a permit on the property for a use not permitted in the more restrictive district until the recommendation has been acted on by the City Commission. This effectively endows the Board with the power to alter the use of a particular parcel of land on an interim basis. Cf. City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., supra (emergency ordinance passed as amendment to building code altering building setbacks constituted zoning ordinance, thus requiring notice and hearing). Second, notwithstanding the authority conferred by Section 47-32.5(h), it is apparent that much if not all of the fact-finding, discussion, and consideration with respect to the merits or demerits of a zoning change are accomplished at the zoning board level. Although a record in the strict sense is not made at the zoning board hearing by which the City Commission is bound, nonetheless it is clear that those proceedings result in input which is material and substantial in the ultimate decision-making process. The importance of this part of the process has been recognized in the context of the government in the sunshine law, Section 286.011, Florida Statutes (1975). In Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), this Court recognized the essential part such consideration and discussion plays in the ultimate decision-making process by holding that a lay group of citizens, designated by the town council of the Town of Palm Beach to advise the council in the adoption of an ultimate zoning plan, was subject to the provisions of Section 286.011. Because it is apparent that the deliberations and actions of the planning and zoning WESTLAW , '1-0 i 7 T'�c,n�son Re�iiers ko clFiiii to oricincl U S Gcn,c::�ment 1Nor{,s Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (1878) board are an integral part of the zoning process, we reject the rationale of F. P. Plaza, Inc. v. Waite, supra, and hold that due process requires that an affected landowner is entitled to notice and an opportunity to be heard at the planning and zoning board stage of the zoning process. Accordingly, we construe the phrase "municipal zoning authority" in Section 176.051(1), Florida Statutes (1971),' to include planning and zoning boards of the type here under consideration which make recommendations to the ultimate governing authority, in this case the City Commission of the City of Fort Lauderdale. We hold, then, that lack of notice of the hearing before the Planning and Zoning Board constitutes a *61 violation of Section 176.051 (1), Florida Statutes (1971)." 141 Furthermore, we hold that the City of Fort Lauderdale was bound by the procedural requirements imposed by its city charter and ordinances. See Rhodes v. City of Homestead and Florida Tallow Corporation v. Bryan, supra. Regardless of the operation of Section 176.051(1), Florida Statutes (1971), by Section 47-32.7, Fort Lauderdale Code of Ordinances, the City of Fort Lauderdale promised property owners notification and a right to be heard when their lands would be affected by proposed zoning. Even if the City of Fort Lauderdale were not constitutionally and statutorily obliged to extend the procedural due process set forth in Section 47-32.7, nevertheless, once it has done so it should not be Footnotes Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk permitted to renege on its promise anymore than one of its private citizens would be entitled to do. Cf. Citizens of Florida v. Mayo, 333 So.2d 1, 7 (F1a.1976) (Public Service Commission promise of procedural rights to a party, in notice of public hearing). For the reasons heretofore enunciated, the petition for writ of certiorari is granted, the decision of the District Court of Appeal, Fourth District, is quashed, and this cause is remanded to the District Court of Appeal with instructions to remand to the trial court for reinstatement of its judgment. It is so ordered. OVERTON, C. J., and ADKINS, BOYD and KARL, JJ., concur. All Citations 354 So.2d 57 See Town of Hillsboro Beach v. Weaver, 77 So.2d 463 (FIa.1955); City of Hollywood v Rix, et ux., 52 So.2d 135 (Fla.1951); Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611 (Fla. 3d DCA 1974); Rhodes v. City of Homestead, 248 So 2d 674 (Fla. 3d DCA 1971); Florida Tallow Corporation v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970); City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., 108 So.2d 614 (Fla. 3d DCA 1959). The Planning and Zoning Board of Fort Lauderdale was formed pursuant to City Charter, Section 324. The duties of the Board are set out in Section 326 of the Charter as follows: "(a) To act in an advisory capacity to the City Commission, to conduct investigations and hold public hearings upon all proposals to change zoning regulations of the City .... "(b) To make recommendations to the City Commission for changes in the existing City plan .... "(c) To investigate and approve or disapprove all new plats intended to be presented to the City Commission for approval. "(d) To perform such other duties as may from time to time be assigned to such Board by the City Commission, or prescribed by ordinance." Section 47-32.7, Fort Lauderdale Code of Ordinances, provides, in pertinent part, the following with respect to notice of public hearings before the Planning and Zoning Board: "(a) Application to rezone lands. The owners of all lands sought to be rezoned and the owners of all lands lying within three hundred (300') feet of any of the lands sought to be rezoned, shall be notified of the proposal to rezone, and of the meeting at which such proposal will be scheduled for public review and discussion. For this purpose the owners shall be deemed to be the persons shown upon the tax cards in the city treasurer's office in the City of Fort Lauderdale as having an interest in or relation to the particular property involved. Such notice shall be mailed to the address shown upon the aforesaid tax card at least ten (10) days before the date of such hearing." WESTLAW 201 �iunisoii s IVU CIdlll; leu UIU J UUv�!1'1I1c111 %�V-01it's Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (1978) Section 47-32.5(h), Fort Lauderdale Code of Ordinances, provides as follows: "(h) In any case where the planning and zoning board has recommended to the city commission that the zoning on a parcel of land be changed from a less restrictive to a more restrictive district, the building department shall not issue a permit on said land for a use not permitted in the more restrictive district until the recommendation has been acted on by the City Commission." s 176.051(1), Fla.Stat. (1971): "Change in zoning classification; notification requirements. "(1) When any municipal zoning authority proposes a change in zoning classification of a single parcel or a group of not more than five hundred parcels of any property within its jurisdiction, it shall be the duty of said authority to give notice by mail to each property owner whose zoning classification is proposed to be changed. Such notice shall be mailed to the owner's current address of record, as maintained by the assessor of taxes for the jurisdiction proposing the change and be postmarked no later than ten days prior to the first scheduled hearing concerning the proposed change. The notice shall contain the legal description of the affected property, the existing zoning classification, the proposed zoning classification, and the time and place of any scheduled hearing concerning the proposed zoning change. Prior to the effective date of any zoning classification change, the municipal zoning authority shall cause an affidavit to be filed with the city clerk certifying that said authority has complied with the provisions of this section. The filing of said affidavit shall be prima facie proof of compliance with the requirements of this section. A failure to give notice shall not affect the validity of zoning except as to the property of the complaining owner." Effective October 1, 1973, s 176.051, Fla.Stat. (1971), was expressly repealed by s 5(1), Ch. 73-129, Laws of Florida, the "Municipal Home Rule Powers Act." End of Document © 2017 Thomson Reuters. No claim to original U S Government Works WESTLAW (C) 20'17 Thomson Reuters NO claim to orlainal U S Government Vvbiks Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Sec. 23-6.2. - Certificates of appropriateness. (e) Appeals. The applicant, the planning department, or any aggrieved party may appeal to the city commission any decision of the board on matters relating to designations and certificates of appropriateness by filing within fifteen (15) calendar days after the date of the decision a written notice of appeal with the hearing boards department, with a copy to the preservation officer. The notice of appeal shall set forth concisely the decision appealed from and the reasons or grounds for the appeal. Each appeal shall be accompanied by a fee of $525.00, plus $3.50 per mailed notice required pursuant to 23-4. The city commission shall hear and consider all facts material to the appeal and render a decision as promptly as possible. The appeal shall be de novo hearing and the city commission may consider new evidence or materials. The city commission may affirm, modify, or reverse the board's decision. The decision of the city commission shall constitute final administrative review, and no petition for rehearing or reconsideration shall be considered by the city. Appeals from decisions of the city commission may be made to the courts as provided by the Florida Rules of Appellate Procedure. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Sec. 23-4. - Designation of historic resources, historic districts, and archaeological sites and zones. (a) Criteria for designation. Properties may be designated as historic resources, historic districts, or archaeological sites and zones only if they have significance in the historical, cultural, archaeological, paleontological, aesthetic, or architectural heritage of the city, state, or nation; possess integrity of design, setting, materials, workmanship, feeling, and association; and meet one or more of the following criteria: (1) Are associated in a significant way with the life of a person important in the past; (2) Are the site of a historic event with significant effect upon the community, city, state, or nation; (3) Exemplify the historical, cultural, political, economical, or social trends of the community; (4) Portray the environment in an era of history characterized by one or more distinctive architectural styles; (5) Embody those distinguishing characteristics of an architectural style, or period, or method of construction; (6) Are an outstanding work of a prominent designer or builder; (7) Contain elements of design, detail, materials, or craftsmanship of outstanding quality or which represent a significant innovation or adaptation to the South Florida environment; or (8) Have yielded, or may be likely to yield, information important in prehistory or history. (b) Criteria exceptions. Ordinarily cemeteries, birth places, or graves of historical figures, properties owned by religious institutions or used for religious purposes, structures that have been moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature and properties that have achieved significance within the past 50 years shall not be considered eligible for listing in the Miami register of historic places. However, such properties will qualify for designation if they are integral parts of districts that do meet the criteria, or if they fall within the following categories: (1) A building or structure that has been removed from its original location but is significant primarily for architectural value, or is the surviving structure most importantly associated with a historic person or event; (2) A birthplace or grave of a local historical figure of outstanding importance if no appropriate site or building exists directly associated with his or her productive life; (3) A cemetery that derives its primary significance from graves of persons of outstanding importance, from age, from distinctive design features, or from association with historic events; (4) A reconstructed building when accurately executed in a suitable environment and presented appropriately as part of a restoration master plan and no other building or structure with the same association has survived; (5) A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own exceptional significance; (6) A property achieving significance within the past 50 years if it is exceptionally important; or (7) A religious property deriving primary significance from architectural or artistic distinction or historical importance. (c) Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Procedures for designation. Properties which meet the criteria set forth in section 23-4 may be designated as historic resources, historic districts, and archaeological sites and zones according to the following procedures: (1) Proposals and preliminary evaluation. Proposals for designation may be made to the board by any one of its members, the mayor, the city commission, the planning department, any other city department, agency, or board, or any interested citizen, organization, agency, association, board, or business entity. The board shall conduct a preliminary evaluation of the data provided in the proposal for conformance with criteria set forth in subsection (a); and shall, if appropriate, direct the planning department to prepare a designation report. The board may require the party initiating such proposal to provide any necessary documentation, and to pay any applicable Fees. a. Notification. At least ten days prior to the meeting at which the board will consider the preliminary evaluation, the owner of property or his designated agent or attorney, on file with the city, which is the subject of said proposal for designation shall be notified by certified mail of the board's intent to consider the preliminary evaluation of the property. Should the applicant be a person other than the property owner or designated agent or attorney on file with the city, the applicant shall be notified and the owner of record of the subject property shall be notified. For historic districts where there are more than fifty properties to be considered, for designation, the owners shall be notified by first class mail and by the published notice. b. Interim protection measures. From the date said notice of the preliminary evaluation is mailed, no building permit for any new construction, alteration, relocation, or demolition that may affect the property proposed for designation shall be issued until one of the following occurs: 1. The board finds that the property does not appear to meet the criteria for designation and votes not to direct the planning department to prepare a designation report in accordance with subsection (b)(1); 2. The board approves or denies the designation in accordance with subsection (b)(3), or 120 days have elapsed, whichever shall occur first, unless this time limit is waived on the record by mutual consent of the owner and the board; or 3. The owner applies for an accelerated certificate of appropriateness prior to final action on the designation by the board, and such certificate of appropriateness has been issued in accordance with the provisions of section 23-6.2. The preservation office shall place said application for a certificate of appropriateness on the next available agenda of the board. Any owner who carries out or causes to be carried out any work without the required certificate of appropriateness shall be subject to the provisions of subsection 23-6.2(f). (2) Preparation of designation report. For every proposed historic site resource, historic district, and archaeological zone, the planning department shall prepare a designation report containing the following information: Designation report. The designation report shall contain a statement of the historic, architectural, and/or archaeological significance of the proposed historic resource, historic district, or archaeological site or zone; the criteria upon which the designation is based; a physical description of the property; an identification of contributing structures and/or landscape features; present trends and conditions; and incentives to encourage preservation, rehabilitation, or adaptive use. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk b. Boundaries. The designation report shall include a map or maps indicating proposed boundaries. Boundaries for historic resources shall generally include the entire property or tract of land, unless such tract is so large that portions thereof are visually and functionally unrelated to any contributing structure or landscape feature. Historic district boundaries shall in general be drawn to include all contributing structures reasonably contiguous within an area and may include properties which individually do not contribute to the historic character of the district, but which require regulation in order to control potentially adverse influences on the character and integrity of the district. Archaeological zone boundaries shall generally conform to natural physiographic features which were the focal points for prehistoric and historic activities or may be drawn along property lines, streets, or geographic features to facilitate efficient management. c. Interiors. Interior spaces that have exceptional architectural, artistic, or historic importance and that are regularly open to the public may be subject to regulation under this chapter. The designation report shall describe precisely those features subject to review and shall set forth standards and guidelines for such regulations. Interior spaces not so described shall not be subject to review under this chapter. (3) Notice and public hearing. The board shall conduct a public hearing to determine whether the proposed historic resource, historic district, archaeological site or zone meets the criteria set forth in subsection (a) and shall approve, amend, or deny the proposed designation. The board may rehear proposals based upon policies set forth in its rules of procedure. All public hearings on designations conducted by the board, except as provided in subsection (b)(1)a., and hearings on appeals of board decisions to the city commission regarding designations shall be noticed as follows: The owner of property or his designated agent or attorney, if any, which is the subject of such designation shall be notified by mail at least 15 days prior to the board's meeting and ten days prior to subsequent administrative appellate hearings. The owner shall receive a copy of the designation report unless there are more than 20 owners, in which case the notice shall state that a copy is available and where it may be obtained. b. An advertisement shall be placed in a newspaper of general circulation at least ten days prior to the hearing. c. Signs shall be posted pursuant to subsection 62-129(2)a., as amended. d. Notice of the time and place of the public hearing by the board, or city commission, as the case may be, shall be sent at least ten days in advance of the hearing by mail to all owners of property within 500 feet of the property lines of the land for which the hearing is required. The applicant shall be charged the appropriate fee established for this purpose. e. For the purpose of this chapter, the names and addresses of property owners shall be deemed those appearing on the latest tax rolls of Miami -Dade County. The preservation officer, or his/her designee, shall certify at the time of the public hearing that notice as herein required was given to the persons as named and with addresses shown on his certification by the placing in the mail system of the United States on the date certified the herein required notice, the certification shall be conclusive of the giving of such notice; in the case of condominiums, notice will be sent solely to the condominium association. No action taken by the board, or the city commission, as the case may be, shall be voided by the failure of an individual property owner or property owners to receive notice pursuant to this chapter. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk (4) Historic and environmental preservation atlas. Historic sites, historic districts, and archaeological zones designated pursuant to section 23-4 shall be shown in the "Official Historic and Environmental Preservation Atlas of the City of Miami, Florida," as amended. (5) Electronic building records. Following the designation of a resource, the historic preservation officer shall note the property as a historic resource in the city's building department records. (6) Notifications. Following the designation of a resource, the historic preservation officer shall notify the following parties with a copy of the resolution: a. The owner(s) of record. b. The Miami -Dade County Clerk of the Courts. (7) Appeals. The property owner, any one member of the city commission, the planning department, or any aggrieved party may appeal to the city commission any decision of the board on matters relating to designations by filing within 15 calendar days after the date of the decision a written notice of appeal with the hearing boards department, with a copy to the preservation officer. Such notice of appeal shall set forth concisely the decision appealed from and the reasons or grounds for the appeal. Each appeal shall be accompanied by a fee of $525.00, plus $3.50 per mailed notice required pursuant to subsection (b)(3). The city commission shall hear and consider all facts material to the appeal and render a decision as promptly as possible. The city commission may affirm, modify, or reverse the board's decision. Any decision to reverse the board's decision shall require a three-fifths vote of all members of the city commission. Appeals from decisions of the city commission may be made to the courts as provided by the Florida Rules of Appellate Procedure. The provisions of subsection (b) shall remain in effect during the entire appeal process, unless stayed by a court of competent jurisdiction. The appeal shall be a de novo hearing and the city commission may consider new evidence or materials in accordance with section 2004 of the zoning ordinance. Appeals shall be made directly to the city commission, within 15 calendar days after the date of the decision, and follow the procedures described in subsections 23-6.2(e) or 23-4(7). (8) Amendments. The board may amend any designation by following the same procedures asset forth in this section. The board may likewise rescind any designation if the structure or feature of principal historic significance has been demolished or destroyed. (d) Effect of designation. Upon designation, and thereafter, the provisions of section 23-6.2 shall apply. (Ord. No. 13008, § 2, 6-26-08; Ord. No. 13116, § 2,10-22-09; Ord. No. 13142, § 10, 2-11-10) Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Dougherty ex rel. Eisenberg v. City of Miami, 23 So.3d 156 (2009) 34 Fla. L. Weekly D2047 23 SO -3d 156 f'l Zoning and Planning District Court of Appeal of Florida, Effect of Decision Third District. 414Zoning and Planning Lucia A. DOUGHERTY, on behalf of contract 414XJudicial Review or Relief vendee J. Laurence EISENBERG, Trustee, 414X(D)Determination Petitioner, 414k] 727Effect of Decision V. 414kI728In general CITY OF MIAMI, Florida, a Florida municipal (Formerly 414027) corporation, Morningside Civic, Association Inc., a City commission, on remand from circuit court, Florida corporation, Rod Alonso, Ron Stebbins, Scott Crawford, and Elvis Cruz, Respondents. sitting in its appellate capacity, was bound by law of the case to comply with circuit court's No.3Do9-639. mandate, directing commission, sitting as appellate body, to conduct limited review of Oct. 7, 2009. record received from city zoning board, and to I render findings of fact in support of its appellate Rehearing Denied Dec. 8, 2009. decision, and, thus, circuit court, in its subsequent appellate decision, holding that commission was permitted to conduct de novo review and change special zoning permit Synopsis because it had amended ordinances during Background: City zoning board issued decision granting pending of prior appeal, failed to apply correct special zoning permit for proposed construction project. law when it failed to enforce its prior decision. Appeal was taken. The city commission reversed board's decision. The Circuit Court, sitting in its appellate capacity, reversed and remanded to city commission. 3 Cases that cite this headnote Civic association filed petition for writ of certiorari, which the District Court of Appeal denied. Thereafter, on remand, the city commission granted permit, subject to height restriction. First-tier certiorari petition followed, �Z� Zoning and Planning and the Circuit Court, Miami -Dade County, Israel Reyes, Q -Scope and Extent of Review Nushin G. Sayfie, and George A. Sarduy, JJ., denied petition. Second-tier certiorari petition was filed. 414Zoning and Planning 414XJudicial Review or Relief 414X(E)Further Review 414k1744Scope and Extent of Review JHolding:J The District Court of Appeal, Ramirez, C.J., 414k1745Ingeneral (Formerly 414k745.1) held that commission, on remand from circuit court, sitting in its appellate capacity, was bound by law of the District Court of Appeal, on second-tier case to comply with circuit court's mandate, such that certiorari review of zoning matter, examines circuit court's subsequent appellate decision failed to whether the circuit court applied the correct law apply correct law when it failed to enforce its prior and afforded procedural due process. U.S.C.A. decision. Const.Amend. 14. Petition granted; decision quashed with directions. 1 Cases that cite this headnote Wells, J., specially concurred, with opinion. 131 Zoning and Planning West Headnotes (4) 4 -Scope and Extent of Review WESTLAW _1 2017 Thomson Reuters I\,Io clainin :o original U S Government VVoiks Dougherty ex rel. Eisenberg v. City of Miami, 23 So.3d 156 (2009) 34 Fla. L. Weekly D2047 414Zoning and Planning 414XJudicial Review or Relief 414X(E)Further Review 414k1744Scopc and Extent of Review 414k1745In general (Formerly 414k745.1) District Court of Appeal second-tier certiorari review of zoning matter includes determining whether the circuit court correctly applied the law to the facts of the case. 1 Cases that cite this headnote 141 Appeal and Error 4—Former Decision as Law of the Case in General Appeal and Error AAs Law of the Case 30Appeal and Error 30XVIReview 30XVI(M)Subsequent Appeals 30k109717ormer Decision as Law of the Case in General 30k 1097(1)In general 30Appeal and Error 30XV1[Determination and Disposition of Cause 30XVII(F)Mandate and Proceedings in Lower Court 30k]193Effect in Lower Court of Decision of Appellate Court 30k 195As Law of the Case 30k1195(1)In general Doctrine of law of the case mandates that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings. 2 Cases that cite this headnote Attorneys and Law Firms Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk *157 Julie O. Bru, Miami, Rafael Suarez—Rivas, Miramar, and John A. Greco, Miami City Attorneys; Kaplan Zeena, Michael A. Sastre, Miami; Jonel Newman, for respondents. Before RAMIREZ, C.J., and WELLS and SUAREZ, JJ. Opinion RAMIREZ, C.J. This is a Petition for a Writ of Certiorari seeking to quash the opinion of the Appellate Division of the Eleventh Judicial Circuit Court in and for Miami—Dade County, dated November 13, 2008. Because the circuit court failed to apply the law of the case, we grant the Petition and quash the decision below. On July 14, 2006, the circuit court, sitting in its appellate capacity, reversed and remanded the October 31, 2005 decision of the City of Miami Commission. The City had reversed the Miami Zoning Board's decision granting a Class II Special Permit to the petitioner for a proposed project to be constructed at 5101 Biscayne Boulevard. The circuit court held that the City Commission had failed to follow the essential requirements of law with respect to its reversal of the Zoning Board decision in two ways: (1) it had exceeded its appellate review jurisdiction by considering new evidence at the appeal hearing held before it; and (2) it had failed to provide findings of fact in support of its decision to reverse the Zoning Board. The Morningside Civic Association filed a Petition for Writ of Certiorari which this Court denied. See A4orningside Civic Assn, Inc. v. Dougherly, 944 So.2d 370 (Fla. 3d DCA 2006). The matter was remanded for the City Commission, sitting as an appellate body, to conduct a "limited to review of the record received from the Zoning Board," and to render findings of fact in support of its appellate decision. Upon remand, the City Commission held a de novo proceeding and applied substantive provisions of the Miami Zoning Ordinance that were not in effect at the time of this permit application. While the City Commission denied the Association's appeal and granted the permit, it made its approval subject to the petitioner agreeing to reduce the height of the Project from the previously approved 87 feet to 35 feet. *156 Goldstein, Tanen & Trench, Susan E. Trench, and A "first tier" certiorari petition followed in the circuit Catherine C. Grieve, Miami, for petitioner. court, seeking to quash the City Commission's decision and the removal of the height restriction placed upon the WESTLAW X2017 Thon-son ReulerS IJo cl,,nii to uiiyirial U S Guv�-,rniiic��t[VVuiks 2 Dougherty ex rel. Eisenberg v. City of Miami, 23 So.3d 156 (2009) 34 Fla. L. Weekly D2047 permit approval. The circuit court denied that Petition for Writ of Certiorari on November 13, 2008, relying specifically on Holladay v. City of Coral Gables, 382 So.2d 92 (Fla. 3d DCA 1980), and holding that the City Commission, on remand, was permitted to conduct a de novo review and change the permit because it had amended ordinances during the pendency of the first appeal. This "second tier" petition follows. 111 121 131 141 Our review on second-tier certiorari examines whether the circuit court (1) applied the correct law and (2) afforded procedural due process. Miami—Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (F1a.2003) (citing City of Deerfield Beach v. I'aillant, 419 So.2d 624, 626 (F1a.1982)). This review includes determining whether the circuit court correctly applied the law to the facts of the case. Our decision is based on narrow legal grounds—the law of the case. The doctrine of law of the case mandates that "questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings." See State v. McBride, 848 So.2d 287, 289 (F1a.2003) (quoting Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001)); *158 U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla. 1983); R & B Holding Co., Inc. v. Christopher Adver. Group, Inc., 994 So.2d 329, 331 (Fla. 3d DCA 2008); Thornton v. State, 963 So.2d 804 (Fla. 3d DCA 2007). There is no doubt that the 2006 circuit court appellate decision actually decided that the City Commission had to limit its review to the record received from the Zoning Board and that it was required to render findings of fact in support of its decision. The only exception to this doctrine is found in Stras_ulla v. Hendrick, 177 So.2d 1 (Fla.]965), in that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a "manifest injustice." Id. at 5. The respondents have not argued manifest injustice. Thus, the City Commission was bound by the law of the case to comply with the prior mandate of the circuit court in its 2006 opinion, and the 2008 appellate decision failed to apply the correct law when it failed to enforce its prior decision. For these reasons, we grant certiorari and quash the November 13, 2008 decision of the appellate division of the circuit court, with directions to enforce its prior 2006 opinion and mandate. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk I concur in the majority opinion concluding that under the law of the case doctrine, the City Commission on remand following Morningside Civic Assoc., Inc. v. Dougherty, 944 So.2d 370 (Fla. 3d DCA 2006), was (1) restricted to a record review of the evidence adduced before the City's Zoning Appeals Board (ZAB) when reviewing that board's decision to grant a Class II Special Permit to Petitioner here, and (2) was obligated to state its reasons for rejecting the ZAB's determination. These two requirements were imposed on the City by the Appellate Division of the Circuit Court in that opinion dated July 14, 2006 and became binding on the City Commission following our denial of certiorari review. Id. I now write separately to clarify these two requirements, both of which amount to incorrect statements of the law.' As the majority opinion explains, this matter initially came to the City Commission following a determination by the City's ZAB that Petitioner's Class 11 Special Permit application should be granted. Following a public hearing during which both proponents and opponents of this application were heard, the City decided to deny the permit. The Petitioner sought review in the Appellate Division of the Circuit Court. In an opinion dated July 14, 2006, the appellate division, relying on the City's zoning ordinance as it existed before the code's amendment in January 2004, reversed the City Commission's denial and remanded for reconsideration. It did so for two reasons: first, because it found that section 1305 of the City of Miami's zoning code obligated the City Commission to state its reasons for rejecting the ZAB's permit determination and that the Commission had failed to do so; and second, because section 1201 of the code restricted the City Commission to a record, rather than permitting a de novo, review of the evidence adduced before the ZAB. Neither of these determinations is correct. As to the first point, the appellate division explained: In the instant case, the Commission did not make specific findings of fact. Florida case law does not require specific *159 findings of fact provided that the ruling is supported by competent substantial evidence. BellSouth Mobility, Inc. v. A4iami—Dade County, 153 F.Supp.2d 1345 (Fla. USDC So. Dist.2001), Board of Counly Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla.]993). However, the City of Miami Zoning Code imposes certain standards. Section 1305 of the City of Miami Zoning Code WELLS, J., specially concurring. expressly provides that: WESTLAW 2017 The �,sor. F, uiei s f"Jc dFi!,n to oriciral U S (_ cvarrnnent Vf Iorks Dougherty ex rel. Eisenberg v. City of Miami, 23 So.3d 156 (2009) 34 Fla. L. Weekly D2047 City agents, agencies, or boards charged with decisions concerning special permits shall make, or cause to be made, written findings and determinations concerning such of the following matters as are applicable in the case, shall reflect such considerations and standards specifically in the record... Based on Section 1305, the City Commission was mandated to include in their ruling written findings which specifically set forth the considerations and standards that are supported by substantial competent evidence. The City Commission failed to comply with this requirement, basing its ruling on a general statement. The critical reason for requiring an administrative agency to state their conclusions and orders with specificity is to facilitate judicial review and bolster decisions. The City is bound by the procedural requirements imposed by the code and cannot renege on its promise to its citizens to uphold the code. Failure of an agency to adhere to its own regulations constitutes a departure from the essential requirements of the law. As such, the ruling of the City Commission fails to observe the essential requirements of the law, the second prong of first tier appellate review. (Some citations omitted). This is a misstatement of the law. As the Florida Supreme Court confirmed as far back as 1993 in Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 476 (Fla.1993), "[w]hile they may be useful, the board will not be required to make findings of fact. However, in order to sustain the board's action, upon review by certiorari in the circuit court it must be shown that there was competent substantial evidence presented to the board to support its ruling." Thus, findings of fact and conclusions of law, while useful, are not necessary to support a quasi-judicial land use determination unless the ordinance at issue requires it. Here, the pre -amendment version of section 1305 of the City of Miami's Zoning Code, on which the appellate division relied in its opinion, mandated no such findings. This provision expressly governed "City agents, agencies, or boards charged with decisions concerning special permits"; it did not govern the City itself, the entity on which the authority has been conferred to create such agents, agencies and boards: Sec. 1. Creation and existence. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk The inhabitants of the City of Miami, Florida, within the boundaries hereinafter designated, or within such boundaries as may hereafter be established, shall continue to be a body politic and corporate under the name the "City of Miami," and as such shall have perpetual succession and may use a common seal. Sec. 4. Form of government... (a) General description. The form of government of the City of Miami, Florida, provided for under this Charter shall be known as the "mayor -city commissioner plan," and the city commission shall consist of five citizens, who are qualified voters of the city who shall be elected from districts in the manner hereinafter provided. The city commission *160 shall constitute the governing body with powers (as hereinafter provide) to pass ordinances adopt regulations and exercise all powers conferred upon the city except as hereinafter provided.... Sec. 38. City planning and zoning board. (a) Comprehensive planning. The city commission is empowered to plan for the future development of the city and, as an integral part of the planning process, to take all lawful actions necessary to implement plans made.... (b) Authority to implement comprehensive plans. The city commission is authorized to ... adopt and enforce: (1) controls on the use of lands and waters; (2) zoning of lands and waters; (3) regulations for the development or subdivision of land; (4) building, plumbing, electrical, gas, fire, safety, sanitary, and other codes; and (5) minimum housing codes. (c) Creation of implementing boards. The city commission shall by ordinance create such appropriate board or boards as it may deem necessary to carry out the functions set out in subsections (a) and (b) above.... WESTLAW 201 , Tilomso11 F e i'tei S No C,iaim to Ofi011-;L'I IIi S GoverfllllE;li Dougherty ex rel. Eisenberg v. City of Miami, 23 So.3d 156 (2009) 34 Fla. L. Weekly D2047 City of Miami Charter §§ 1, 4, 38. Thus, by its terms, the version of section 1305 relied on by the appellate division in its July 2006 opinion did not apply to the City Commission and did not alter the rule set forth in Snyder. The City Commission was not, therefore, required by this provision to specifically set forth the considerations and standards that supported its quasi-judicial decision to reverse a determination of its zoning board .2 As to the second point, that is, the appellate division's conclusion in its July 2006 opinion that the City Commission was precluded from hearing evidence in addition to that heard by the ZAB, the appellate division stated: Section 1201 of the City of Miami Zoning Ordinance provides that: The City commission shall have only the following duties: (4) Reviewing, upon request, decisions of the Zoning Board when it serves in an appellate capacity with respect to decisions of ... the director of planning, building and zoning. (Emphasis added). The usage of the word "only" limits the scope of "review" in an appellate capacity. By comparison, Section 1305 of the City of Miami Zoning Ordinance, expressly proves that "new materials may be provided by the Zoning Board where such materials are pertinent to the determination of the appeal." This express provision empowers the Zoning Board to receive new materials. There is no similar provision for the City Commission to receive new evidence. Accordingly, the City Commission was limited to review of the record received from the Zoning Board. The nature of inquiry narrows as the case proceeds up the judicial ladder. City of Deeifeld Beach i,. baillant, 419 So.2d 624 (Fla. 1982). By conducting its own de novo assessment, the City Commission usurped the authority of the Zoning Board. G.B. G: international, Ltd., 787 So.2d at 846. As such, by reversing the Zoning Board's issuance of the Special Permit, the City Commission failed to *161 follow the essential requirements of the law. This too is incorrect. Nothing in the version of section 1201 of the City's zoning code relied on by the appellate division prevents the City Commission from hearing new or additional evidence while reviewing a decision from its ZAB. This provision states only that the Commission has the authority to review ZAB decisions when the ZAB acts Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk in an appellate capacity with regard to decisions of the directors of planning, and building and zoning: The City Commission shall have only the following duties: (4) Reviewing, upon request, decisions of the Zoning Board when it serves in an appellate capacity with respect to decisions of ... the director of planning, building and zoning. City of Miami Zoning Ordinance § 1201 (2004) (emphasis added). The "it" referred to in this version of section 1201 is the ZAB, not the City Commission. See City of Miami Zoning Ordinance § 1203 "Duties of Zoning Board" (confirming that the zoning board "[s]erv[es] as an instrument of review of decisions of the director of the department of planning, building and zoning in connection with the issuance of Class II Special Permits"). Section 1201 says nothing about the manner in which the Commission may review such ZAB decisions. It is, of course, well accepted that local government decisions regarding building permits are quasi-judicial in nature and are subject to de novo review. See Broivard Counly v. G.B. b: int'l, Ltd., 787 So.2d 838, 842 n. 4 (Fla.2001) (confirming that local government decisions on building permits, site plans, and other development orders are quasi-judicial in nature). Such proceedings, as we have stated, are those at which at least the parties must be allowed to present evidence and cross-examine witnesses. See Jennings v. Dade Counly, 589 So.2d 1337, 1340 (Fla. 3d DCA 1991). As confirmed during the public hearing held to amend the City's zoning code to address the appellate division's July 14, 2006 decision, the City, historically, has applied section 1201 to treat "appeals" from the ZAB as quasi-judicial proceedings conducted at public fora where all interested parties may appear and present evidence: [By the City Attorney]: ... Sometimes [sic] in 1990 ... [the courts] said that you needed to act more like judges than legislators, and they imposed this quasi-judicial type of proceeding' that you have been hearing for the WESTLAW 2017 Thorson ReUters [Jo Clair, to nr!cinal U S Government lYoi,ks Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Dougherty ex rel. Eisenberg v. City of Miami, 23 So.3d 156 (2009) 34 Fla. L. Weekly D2047 last 14 whatever years, which you ... of what the Zoning Board means that when a P & Z item did. comes in front of you, you need to pay particular attention to the http://egov.ci.miamifl.us/meetings/2006/1/1208_M_City_ evidence and the testimony, and Commission Verbatim_ Minutes-(Long).pdf, you need to weigh it. You need to _06-01-26 City of Miami Commission Meeting Minutes 1/26/06 find competent, substantial (emphasis added); see also evidence on the record. You need http://egov.ci.miami.fl.us/Legistar to afford due process, you know, all Web/Attachments120326.pdf, City of Miami Planning of these things that we have been Department "Planning Fact Sheet" (Jan. 11, 2006) (stating advising you and that you are very "[r]ecently, a Circuit Court ruled that appeals from the adept at doing. Something has Zoning Board to the City Commission are to be happened recently.... In the last few conducted like appellate hearings. However, the City's months, a decision of this practice is to conduct these hearings de novo "new commission was appealed to the hearing" where all parties can address the City appellate division of the circuit Commission with new evidence, etc. This amendment [to court.... The case, very briefly, goes address the appellate division's July 14, 2006 opinion] is something like this, Ms. *162 simply to clarify that this is the City's practice."). Gelabert approves a special Class 11 Permit. That decision of hers gets As both the version of section 1201 applied by the appealed to the Zoning Board. The appellate division in its July 2006 opinion and the historic Zoning Board agrees with her, and application of this provision confirm,' there was and is no the neighbors appeal that decision basis for determining that the City Commission was and comes [sic] to the Commission. limited to conducting an "appellate review" similar to that The Commission looks at it; hears conducted by the courts and as contemplated by the rules evidence all over again because of appellate procedure when reviewing a ZAB that's the way that it has always determination.` The Commission *163 was, therefore, happened, and the Commission well within its authority to conduct a de novo review of goes against the Zoning Board and the ZAB's decision to issue the instant permit and to hear Ms. Gelabert.... When [the new evidence. developer goes] to court to challenge this Commission's Thus, while I cannot agree with the reasons set forth by decision, they were successful in the appellate division in its July 2006 opinion for convincing the court that this reversing the City Commission's decision to deny the Commission did not act instant permit, I nonetheless agree with the majority appropriately because you herein that by virtue of that opinion and this court's consider[ed] the matter de novo.... refusal to review it, the Commission was obligated on [N]ow you are literally under court remand to: (l) limit its review to the record before the order ... when you're dealing with ZAB; and (2) state its reasons for any determination that it appeals from the Zoning Board ... made. It would also appear that by virtue of the appellate you have to act like appellate division's reliance on the zoning code prior to its January lawyers, not like trier [of] fact 2004 amendment, this is the version of the code to be lawyers, which imposes an applied below. additional burden, which means that you cannot—when it comes to you, you cannot listen to the case de novo. You cannot hear the All Citations neighbors. You cannot hear the experts. You cannot hear the 23 So.3d 156, 34 Fla. L. Weekly D2047 developer's experts. You must limit yourself to the transcript, to the record that has been passed out to WESTLAW - � 201 ; Thomson R&UtGrS No clan n iu onoinal U S Government Woi l:s 6 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Dougherty ex rel. Eisenberg v. City of Miami, 23 So.3d 156 (2009) 34 Fla. L. Weekly D2047 Footnotes I acknowledge that by our denial of certiorari we are bound by Morningside Civic Assn, Inc. v. Dougherty, 944 So.2d 370 (Fla. 3d DCA 2006), for the purposes of this matter on remand. 2 This provision was amended in 2004 to impose this requirement on the City Commission. See, e.g., Snyder, 627 So.2d at 474 (stating generally that a local government acts in a legislative capacity when it formulates a general rule of policy; whereas, it acts in a judicial capacity when it applies such a general policy rule. The former acts are subject to a "fairly debatable" standard of review by the courts; whereas, the latter must be supported by competent, substantial evidence.). 4 In fact, the neighborhood association's response filed herein concedes that "neither the City, nor the developers or neighborhood groups, had ever interpreted or applied Section[ ] 1201 ... in the restrictive manner proscribed by the circuit court...." 5 This provision has now been amended to expressly provide for de novo review: Sec. 1201 Duties of city commission. Under this zoning ordinance, the city commission shall have the following duties, including, without limitation: (4) Reviewing and considering, in accordance with the applicable provisions of this Zoning Ordinance upon request, by hearing de novo, decisions of the zoning board when it serves in a review capacity with respect to decisions of either the zoning administrator or the directors of planning, building and zoning.... City of Miami Zoning Ordinance § 1201. In conjunction therewith, article 20 of the code was amended to permit the Commission to take and consider new evidence at such de novo proceedings: Sec. 2004. City commission powers on review; hearing de novo. The city commission shall conduct a hearing de novo, as a body of original jurisdiction, upon any appeal and/or review from an appealable decision under the terms of this zoning ordinance, as amended. New evidence or materials may be received by the city commission where such evidence or materials are pertinent to a determination of the appeal.... The city commission on review shall have full power to affirm, reverse, or modify, in whole or in part, with or without conditions, the action of the zoning board or other appealable decision pursuant to this zoning ordinance. City of Miami Zoning Ordinance § 2004. End of Document © 2017 Thomson Reuters No claim to original U.S. Government Works. WESTLAW , 2017 Thomson Reuters No claim to original U S Government Works Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374 (2006) 31 Fla. L. Weekly D719 928 So.2d 374 2871I1(A)In General District Court of Appeal of Florida, 28705.13 Representation of Class; Typicality Third District. The issue of standing is a threshold inquiry Miriam Nancy FERREIRO, individually, and on which must be made at the outset of the case behalf of all others similarly situated, Appellant, before addressing whether the case is properly V. maintainable as a class action. PHILADELPHIA INDEMNITY INSURANCE COMPANY, a foreign corporation, Appellee. 5 Cases that cite this headnote No. 3Do4-3205. March 8, 2006. 121 Action Rehearing and Rehearing En Banc Denied March < Persons Entitled to Sue 30, 2006. 13Action 131Grounds and Conditions Precedent 1303Persons Entitled to Sue Synopsis Background: Rental car customer who purchased excess To satisfy the requirement of standing, the insurance coverage at time of rental brought declaratory plaintiff must show that a case or controversy judgment action against excess coverage insurer, claiming exists between the plaintiff and the defendant, a right to uninsured motorist (UM) coverage from insurer and that such case or controversy continues from for injuries sustained in accident soon after customer the commencement through the existence of the rented vehicle. The Circuit Court, Miami -Dade County, litigation. Jon 1. Gordon, J., found in favor of insurer, and customer appealed. The District Court of Appeal, Schwartz, C.J., 8 Cases that cite this headnote 816 So.2d 140, reversed. Upon remand, customer filed a motion for class certification seeking to obtain UM coverage for a class of plaintiffs. The Circuit Court denied motion for class certification based on lack of standing. 131 Parties Customer appealed. 4 -Insurance Claimants 287Parties 287111Representative and Class Actions [Holding:] The District Court of Appeal, Cortinas, J., 287111(C)Particular Classes Represented held that customer had standing to bring class action 287k35.73Insurance Claimants against insurer. Rental car customer that purchased excess insurance coverage had standing to bring class Reversed. action against insurer for failing to offer uninsured or underinsured motorist coverage, Shepherd, J., filed a dissenting opinion. even though insured was previously granted declaratory relief; customer's individual damage claims against insurer remained pending, and West Headnotes (3) thus, she continued to have a case or controversy ISI Parties with insurer. Representation of Class; Typicality 287Parties 1 Cases that cite this headnote 287111 Representative and Class Actions WESTLAW r, 21011 Thomson Reuters fuo claim to orivinal U S Government Works Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374 (2006) 31 Fla. L. Weekly D719 Attorneys and Law Firms *375 Hunter, Williams & Lynch, P.A., Coral Gables, and Christopher Lynch and Steven K. Hunter, for appellant. Conner & Winters, L.L.C. and James E. Green; Hicks & Kneale, P.A., Susan Y. Marcus, Hollywood, and Mark Hicks, Miami, for appellee. Before WELLS, SHEPHERD, and CORTINAS, JJ. Opinion CORTINAS, Judge. The plaintiff, Miriam Nancy Ferreiro ("Ferreiro"), appeals from a non -final order denying her motion for class certification on the ground that she lacked standing to pursue this class action. We reverse. In January 1997, Ferreiro rented a car from a Budget Rent A Car facility in Miami, Florida. She purchased an optional Rental Supplemental Liability Insurance Excess Policy ("excess policy") from the defendant, Philadelphia Indemnity Insurance Company ("Philadelphia"). Soon after renting the car and purchasing the excess insurance, Ferreiro was involved in a car accident and was seriously injured. On June 4, 2001, Ferreiro filed a second amended class action complaint' against *376 Philadelphia seeking (1) a declaratory judgment that Ferreiro and other similarly situated individuals are entitled to uninsured or underinsured motorist coverage pursuant to section 627.727(2), Florida Statute (1997),= and (2) damages resulting from her injuries. The parties do not dispute that the excess policy did not offer Ferreiro uninsured or underinsured motorist coverage. The parties dispute whether Ferreiro has standing to bring a class action against Philadelphia for failing to offer such coverage. This Court, in Ferreiro v. Philadelphia Indem. Ins. Co., 816 So.2d 140 (Fla. 3d DCA 2002), held that Philadelphia was required by section 627.727(2) to inform Ferreiro that uninsured motorist coverage was available. By mandate issued on July 19, 2002, we directed the trial court to hold Philadelphia to uninsured motorist coverage for Ferreiro. WESTLAW ; 201 ; Thomson Reutei s NO Clan] to Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk After this Court's decision in Ferreiro and following remand, Ferreiro filed a Motion for Class Certification seeking to obtain uninsured and underinsured motorist coverage for a "class" she redefined as: All individuals who purchased [excess policies] from Philadelphia Indemnity Insurance Company in the State of Florida prior to April 1, 2003, and all individuals or entities qualifying as either Class I or Class II insureds, pursuant to § 627.727 Fla. Stat., under said policies. Philadelphia objected to certification of a class action claiming that Ferreiro lacked standing. The trial court stayed discovery pending resolution on the issue of standing. Subsequently, the trial court denied Ferreiro's motion for class certification on the basis that she lacked standing. However, the trial court ordered that Ferreiro's individual claims would remain pending. On de novo review, we disagree with the trial court and find that Ferreiro has standing to pursue a class action. See WS. Badcock Corp. v. R`ebb, 699 So.2d 859, 861 (Fla. 5th DCA 1997)(holding that a trial court's decision as to whether a plaintiff has standing to bring a class action is reviewed de novo ). "I The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable as a class action. Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997); Baptist Hosp. of A4iami, Inc. v. DeA4ario, 683 So.2d 641, 643 (Fla. 3d DCA 1996). Thus, in this appeal, we consider only whether Ferreiro has standing to seek class action certification. We do not address Ferreiro's capacity to represent the class as the trial court has not had an opportunity to consider and rule upon this issue. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987)(holding that a court may address whether the plaintiff has representative capacity only after determining the issue of standing), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 193 (1988). For the same reasons, *377 we do not address issues regarding the scope of the purported class or the merits of the class action. 1�1 131 To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the orioinal U S Govern���enl l��ioii;s Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374 (2006) 31 Fla. L. Weekly D719 plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation. Godii,in v. State, 593 So.2d 211 (F1a.1992); Montgomery v. Dept of Health and Rehabilitative Servs., 468 So.2d 1014 (Fla. 1st DCA 1985). Absent an existing case or controversy between Ferreiro and Philadelphia, there would not be standing to pursue a class action claim or represent a class. See Webb, 699 So.2d at 860. As we have previously held: [I]f none of the named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class. Taran, 685 So.2d at 1006 (quoting O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Philadelphia contends that Ferreiro lacks standing to bring this class action because we previously granted her declaratory relief. In support of its position, Philadelphia relies on Chinchilla v. Star Casualty Insurance Co., 833 So.2d 804 (Fla. 3d DCA 2002), Ramon v. Aries Insurance Co., 769 So.2d 1053 (Fla. 3d DCA 2000), Taran, 685 So.2d at 1006, Baptist Hospital, 683 So.2d at 643, and Syna v. Shell Oil Co., 241 So.2d 458 (Fla. 3d DCA 1970). However, none of those cases support Philadelphia's contention that Ferreiro lacks standing. For example, in Baptist Hospital, this court did not address the issue of plaintiff's standing to bring a class action and, instead, remanded the case to the trial court for a determination on plaintiff's standing. Baptist Hospital, 683 So.2d at 643. In Ramon, the plaintiff brought a class action against an automobile insurance company after he was involved in an accident. The plaintiff conceded that the insurer settled all of his claims and that no money was due to him, but, nevertheless, he wanted to pursue the class action "so that the insurer would `change the way they do things.' " Ramon, 769 So.2d at 1054. We concluded that the plaintiff lacked standing because he had already received full payment and, thus, did not have a pending case or controversy with the insurer. Ramon, 769 So.2d at 1055. In this case, unlike the cases cited by Philadelphia, a final judgment has not been rendered on Ferreiro's claim for Submitted into the public Record for item(s)_ On 05-25-2017 . PZ.15 City Clerk damages or on Philadelphia's liability. In fact, the trial court correctly recognized that Ferreiro's individual claims remained pending after the prior appeal. As such, we find that Ferreiro has standing because she continues to have a case or controversy with Philadelphia. See Taran, 685 So.2d at 1006; Ramon, 769 So.2d at 1055. We note that the dissent confuses judicial review of standing with review of the criteria for certification of a class action. The differences in these inquiries has been described as follows: Though there is no additional standing requirement for the plaintiff who seeks to represent a class, a proper class action requires a similarity of claims between the named plaintiffs and the class members. This similarity of claims is tested not by principles of standing, but by the application of the Rule 23(a)(3) criteria. If a class action is proper, then by definition the class representative's claims will be typical of the class. Thus the class plaintiff's individual standing, linked to his or her asserted claim, becomes *378 automatically linked to the class claim. Having standing which a class representative shares with the members of a class is another way of saying that the class representative is a proper party to raise a particular issue common to the class. The commonness of issues is an express requirement of Rule 23 and is an attribute of the issue involved, rather than a threshold characteristic of whether the issue meets the constitutional case or controversy test. Accordingly, a plaintiff who meets individual standing requirements possesses [standing] in the constitutional sense, and whether the plaintiff may represent the rights of others depends on the application of Rule 23 tests in the case of a class action[.] WESTLAW 201-7 Thomson R ulers Nc clar-i-i to original U S Government 1Yoiks Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374 (2006) 31 Fla. L. Weekly D719 Osgood v. Harrah's Entertainment, Inc., 202 F.R.D. 115, 120-21 (D.N.J.200])(citing Herbert B. Newberg & Alba Conte, Newberg On Class Actions § 2.05 (3d ed.1992)) (emphasis added).' Thus, standing is a threshold determination necessary for the maintenance of all actions, including class actions. In this case, the standing requirement is satisfied because there is a pending claim for damages between the parties as well as a pending determination of Philadelphia's liability. Whether plaintiff is a proper class representative or whether there exists similarity of claims between the named plaintiff and the class members are questions addressed not by principles of standing, but, rather, by the application of the requirements for class action certification, namely (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Meyer v. CUNA Mut. Group, No. 03-602, 2006 WL 197122, at *14 (W.D.Pa.2006); Fallick v. Nationwide Mit. Ins, Co., 162 F.3d 410, 423 (6th Cir. 1998); Fla. R. Civ. P. 1.220. Accordingly, we reverse the trial court's determination that Ferreiro lacks standing to bring a class action and remand for further proceedings consistent with this opinion. We express no opinion on the viability of the proposed class action. WELLS, J., concurs. SHEPHERD, J., dissenting. The precise issue presented in this case is whether an individual who has obtained a court decree establishing "imputed uninsured motorist coverage" for herself under a renter's supplemental excess insurance policy and for whom the only unresolved questions between her and her insurer are whether her actual loss falls within the established "imputed coverage" and, if so, the amount of damages to which she is entitled, has standing vel non to prosecute a separate claim for declaratory class relief to seek to establish that "imputed coverage" for persons other than herself. Because under the applicable law of this district, standing to prosecute cause of action "x" does not automatically confer standing to prosecute cause of action "y," I conclude that at such time as Miriam Ferreiro established imputed coverage for herself in this case, her standing to proceed on behalf of the class ceased. This conclusion is also constitutionally required. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Accordingly, I respectfully dissent. The Constitutional Dimension As the majority correctly suggests, see p. 377-78, supra, standing is a matter of constitutional dimension. In Florida, this means that "every case must involve a real controversy as to the issues presented." *379 Dep'i of Revenue v. Kuhnlein, 646 So.2d 717, 721 (F1a.1994). See also Godwin v. State, 593 So.2d 211, 212 (Fla. I 992)(pointing out that a case "present[ing] no actual controversy or when the issues have ceased to exist" will be dismissed as "moot"). Put another way, the parties must not be requesting an advisory opinion, Interlachen Lakes Estates, Inc. v. Brooks, 341 So.2d 993, 995 (1976), except in those rare instances in which advisory opinions are authorized. E.g., Art. IV, § 1(c), Fla. Const. (advisory opinions to the Governor). In the context of declaratory judgment actions, see 86.011, Fla. Stat. (2005), the Florida Supreme Court has reiterated much the same rule: Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These WESTLAW , 2017 Thomson Fleuisis ivu cioiw, is oiioinal U S Goverwiieni',,Vorhs Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374 (2006) 31 Fla. L. Weekly D719 elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts. May v. Holley, 59 So.2d 636, 639 (F1a.1952)(emphasis added); see also Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.] 99 ])(reaffirming Alay ); Kuhnlein, 646 So.2d at 721 (accord). Perhaps the greatest risk in the deployment of declaratory actions is that a party will seek to misuse the device to obtain an answer where it might be nice to have one, but where there is no "present, adverse and antagonistic interest in the subject matter." Alay, 59 So.2d at 639. 1n these cases, it is our sworn responsibility to police the boundaries. See, e.g., Martinez, 582 So.2d at 1170 ("[A]lthough a court may entertain a declaratory action regarding a statute's validity, there must be a bona fide need for such a declaration based on present, ascertainable facts or the court lacks jurisdiction to render declaratory relief."); Dep'I of Ins. v. Dade County Consumer Advocate's Office, 492 So.2d 1032, 1043 (F1a.1986)("Courts, in performing their function of adjudicating cases and controversies within their jurisdictions, interpret and apply the law when there is a dispute or conflict regarding how it applies."); In re Connors, 332 So.2d 336, 340 (Fla.1976)(Hatchett, J., dissenting)("In my opinion, no case or controversy is ripe for decision here.... Without doubting the importance of the question presented, I believe the Court oversteps jurisdictional boundaries in reaching the merits."). I am of the view that such is our obligation here. As previously indicated, the current circumstance of this case is that there is a case and current controversy between Ferreiro and her insurer with respect to whether or not her insurer owes her any compensation for the loss that she has suffered -Le., whether she suffered a loss attributable to the act of an uninsured motorist. However, there is no longer any dispute concerning whether she has coverage under the policy for such a loss if it occurred. Indeed, because the decision rendered by us in Ferreiro is one of first *380 impression that has since not been considered or ruled upon by any other District Court in this state or the Florida Supreme Court, our decision would be controlling on the question of the existence of "imputed coverage" in any trial court in this state should another Philadelphia insured raise the question. Pardo v. State, 596 So.2d 665, 666 (Fla.]992)("[T]he decisions of Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk the district courts of appeal represent the law of Florida unless and until they are overruled by this Court. Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.")(internal citations omitted). Accordingly, to hold that Ferreiro has standing to prosecute the class action in this case simply because she has not prosecuted to completion her individual claim for damages based upon coverage previously established by her is violative of the constitutional underpinnings of the case and controversy requirement in Florida law. See Kuhnlein, 646 So.2d at 720-22 (The standing requirement in Florida's courts of general jurisdiction is co -extensive with the requirement that there be a case and controversy). Carefully examined, I believe the authorities from our District which the majority finds inapposite, see p. 377-78, supra, likewise compel this conclusion. OUR AUTHORITIES I find our recent decision in Baptist Hosp. of Aliami, Inc. v. DeAlario, 661 So.2d 319 (Fla. 3d DCA 1995), instructive if not controlling of the instant case. In DeMario, Michael DeMario sought declaratory class relief, alleging that he was overcharged for copies of medical records he requested from Baptist Hospital. See § 395.3025(1), Fla. Stat. (1995). When the hospital neglected to respond to the complaint, the trial court entered a default against it on the plaintiff's individual claim and then certified a class based solely upon the fact of the default. We reversed the class certification because the rigors of class certification had not been considered or satisfied. Id. at 320. We also sua sponte signaled the existence of a potential threshold issue concerning whether DeMario had standing to serve as the class representative. Id. at 322, n. 6 ("We likewise express no view on the question whether the existence of a default as to plaintiff's individual claim places the plaintiff in a different position than the rest of the class, such that the plaintiff's standing to serve as class plaintiff is adversely affected."). Rather than addressing that issue on remand, however, the trial court determined to delay it until the hearing on the motion to certify the class. The hospital countered by re -raising the issue to us on a petition for writ of certiorari and arguing its threshold character. Baptist Hosp. v. DeAlario, 683 So.2d 641, 642 (Fla. 3d DCA 1996). We granted the writ and remanded the case to the trial court with directions to stay discovery on the class certification issue pending a determination on DeMario's standing to serve as the class representative because "DeMario, unlike any other member of the WESTLAW , 20 1 1 I)orruol_ pouter: [,,Io claiiil is o,r_�irFl �m..mentV,;;,i �: Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374 (2006) 31 Fla. L. Weekly D719 putative class, has had liability determined in his favor...." Id. at 643 (emphasis added). Just as in our case, DeMario's claim had not proceeded to a final resolution. Id.; see also Fla. R. Civ. P. 1.500 (distinguishing between a default and a final judgment after default). If the fact that Mr. DeMario had not obtained a final judgment after default on his individual claim was immaterial to the remand of his case for the immediate resolution of the standing issue there, as it must have been, then whether or not Ferreiro has received a final judgment on her individual claim should likewise be immaterial to the resolution of the standing issue in our case. *381 Although the remaining authorities dismissed by the majority are factually distinguishable from both Deklurio and our case on the ground that no separate, potentially viable, individual claim existed at the time of the entry of the dismissals for lack of standing, nevertheless they illustrate the point that standing is determined by reference to the purported class action claim. For example, in Syna v. Shell Oil Co., 241 So.2d 458 (Fla. 3d DCA 1970), the plaintiff Sidney Syna filed a class action complaint to recover alleged usurious credit card interest. On the day Shell's answer was due, its counsel informed Syna by letter that it was canceling his credit card and returning the thice dullais in question. Li its simultaneously filed answer, the company raised as an affirmative defense that the case should be dismissed because "there [no longer] existed [a] present controversy between `the Plaintiff and the Defendant.' " The trial court agreed, and we affirmed. Syna, 241 So.2d at 459. Likewise, in Chinchilla v. Star Cas. Ins. Co., 833 So.2d Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk yes for an answer." Id. Ferreiro likewise seems unwilling to recognize what she has legally accomplished. In Ramon v. Aries Insurance Company, 769 So.2d 1053 (Fla. 3d DCA 2000), Ramon sought to establish a class action on behalf of himself and all others similarly situated against Aries Insurance Company on the basis that the insurer had improperly withheld a personal injury protection deductible for medical costs incurred by him in an accident while a passenger in a vehicle owned by Irene Lopez. Months after the accident, he married Lopez' daughter and the couple moved in with Lopez. As events unfolded, Aries discovered that it had erroneously withheld the deductible on the mistaken belief that Ramon was living in the home of the named insured, Irene Lopez, at the time of the accident. See § 627.739, Fla. Stat. (1999). Upon discovering its error, Aries paid Ramon the deductible and moved for summary judgment on the ground that Ramon no longer had standing to maintain the class action because there was no case or controversy between him and Aries. The trial court granted the motion and we affirmed. Ramon, 769 So.2d at 1055. Finally, in Taran v Blue Cross Blase Shield of Fla, Inr , 685 So.2d 1004 (Fla. 3d DCA 1997), Adam Taran and Eric Michalowsky brought a class action against their health insurers, alleging that they had been overcharged insurance premiums for newborn health insurance. The insurers filed affidavits demonstrating that the premiums charged were proper, which led to summary judgment in favor of the insurers based on lack of standing. We again affirmed. Taran, 685 So.2d at 1007. 804 (Fla. 3d DCA 2002), Star Casualty mailed Chinchilla *382 From this group of cases -all from this court and a letter informing her that she needed to pay an additional spanning more than three decades -I believe the following premium by a date certain in order to maintain her conclusions flow. First, if a question of the standing of a personal injury protection medical benefits coverage on class representative to represent the class exists in a case, her motor vehicle. However, she never received the letter that issue must be resolved before class certification is and her coverage was cancelled, a fact she did not addressed. Second, the fact that an individual has standing discover until months later, when she was injured in a to prosecute his individual claim to judgment but has not collision involving the vehicle. After determining that yet obtained that judgment is not dispositive of whether Chinchilla could reasonably have believed she had paid that individual has standing to serve as a class all premiums due, and wishing to avoid litigation, Star representative. See DeMario, supra. Third, it is a cardinal responded to her claim for benefits by reinstating her principle that standing ceases to exist where, prior to policy and providing coverage for the accident. Chinchilla certification, an individual dispute is resolved, regardless then filed a class action suit on behalf of all persons who, of whether it is through unilateral action of the defendant among other things, had their policies cancelled for in removing the issue from dispute, an agreement of the non-payment or who were charged a premium beyond the parties, or a determination by the trial court which (as in cancellation date stated in the letter. We affirmed the trial the instant case) may be reviewed through appellate court's decision finding that Chinchilla lacked standing to proceedings. Applying these principles drawn from our be the class representative. Chinchilla, 833 So.2d at case law, I conclude that the law of this District compels 805-06. "Chinchilla" we observed, "[refuses to] accept us to affirm. WESTLAW � � 20 Thin-�sDn P.euters No clan [ i 'l,u of iginal U S 'r s Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374 (2006) 31 Fla. L. Weekly D719 CONCLUSION The court below entered judgment against the plaintiff on the class claim presented by her on the ground that her standing to continue to represent the purported class ceased at the time we issued our Ferreiro decision which fully and finally determined that she had "imputed coverage" for any loss caused by an uninsured motorist as a matter of law by virtue of the fact that Philadelphia neglected to give her the opportunity to accept or decline such coverage at the time she purchased Philadelphia excess insurance coverage. At the same time, the trial Footnotes Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk court held that she could continue to pursue her individual claim made in a separate count of the complaint for damages alleged by her to have been caused by an uninsured motorist pursuant to her policy as legally reconstructed. For the reasons stated, I believe the trial court was correct in this decision and would therefore affirm the judgment below. All Citations 928 So.2d 374,31 Fla. L. Weekly D719 In her second amended class action complaint, Ferreiro defined the "class" of persons entitled to a declaration of uninsured or underinsured motorist coverage as: Individuals who have purchased from Philadelphia Indemnity Insurance Company, [an excess policy] which is delivered or issued for delivery in Florida in conjunction with the rental of a vehicle which is registered or principally garaged in Florida, as well as occupants of said vehicles, and who have sustained damages in the past five years as a result of the alleged negligence of an uninsured/underinsured motorist while an occupant of said rental vehicle. Section 627.727(2) provides, in pertinent part, that: [A]n insurer issuing [an excess policy] shall make available as a part of the application for such policy, and at the written request of an insured, limits [of uninsured motorist coverage] up to the bodily injury liability limits contained in such policy or $1 million, whichever is less. § 627.727(2), Fla. Stat. (1997). Federal Rule of Civil Procedure 23(a) is virtually identical to Florida Rule of Civil Procedure 1.220(a). End of Document © 2017 Thomson Reuters No claim to original U S Government Works. WESTLAW , 2017 Thomson Reuters No claim to onainal U S Government'Aloiks Chabau v. Dade County, 385 So.2d 129 (1980) 385 So.2d 129 District Court of Appeal of Florida, Third District. Arturo CHABAU et al., Appellants, V. DADE COUNTY and Key Biscayne Property Taxpayer's Association, Inc., Appellees. No. 80-761. 1 June 17, 1980. Rehearing Denied July 21,1980. Developers appealed from a decision of the Circuit Court, Dade County, Wilkie D. Ferguson, Jr., J., which denied their petition for a writ of prohibition. The District Court of Appeal held that association representing individual property owners in their opposition to developers' request for zoning variances was not an "aggrieved party" within meaning of Dade County Code and therefore lacked standing to appeal zoning appeal board's decision approving the variances. Reversed. West Headnotes (1) Ill Zoning and Planning v- Variances or exceptions Association representing individual property owners in their opposition to developers' request for zoning variances was not an "aggrieved party" within meaning of Dade County Code and therefore lacked standing to appeal zoning appeal board's decision approving the variances. 9 Cases that cite this headnote Attorneys and Law Firms *129 John G. Fletcher, Coral Gables, for appellants. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., Mann & Dady and Stanley J. Mama, Miami, for appellees. Before HENDRY, NESBITT and BASKIN, JJ. Opinion *130 PER CURIAM. Appellants Chabau and others want to erect an apartment building on Key Biscayne; some 800 Key property owners disapprove of their planned construction. The corporate appellee (hereinafter "association") professes its authority to represent the individual property owners in their opposition to appellants' request for zoning variances. The association appealed to the Dade County Board of County Commissioners from the Zoning Appeals Board's decision approving the variances. After the association's appeal was made, but before a decision was rendered by the Commissioners, appellants sought a writ of prohibition in the circuit court. Their petition was denied, and appeal to this court was taken from the denial. The petition and appeal challenge the subject -matter jurisdiction of the Board of County Commissioners, which ultimately overruled the Zoning Appeal Board's decision: According to appellants, the Board of County Commissioners was without authority to overturn the decision of the lower administrative tribunal, because the association lacked standing to appeal to that Board. We agree that the association was without standing to appear before the Board of County Commissioners, and reverse the ruling of the circuit court. We are referred by both parties to s 33-313, Dade County Code (1979): Any appealable decision of the zoning appeals board may be appealed by an applicant, governing body of any municipality, if affected, or any aggrieved party whose name appears in the record of the zoning appeals board.... Thus, if the association were not an "aggrieved party", it could not properly appeal to the Board of County Commissioners, that Board could not review the decision of the Zoning Appeals Board, and any decision of the Commissioners would be void ab initio. WESTLAW C-) 2017 Thomson Rculcrs No claim to original U S Goveinmel-VA/oiks Chabau v. Dade County, 385 So.2d 129 (1980) It is clear that a representative association, such as appellee, could not sue in state courts; it would have no standing, unless it, rather than its members, had suffered some special injury. United Stales Steel Ci7re]. 'V. _Sa_e Sand :Key. Inc- 303 So.2d 9 (Fla_ 197-1); Hei:�i zl r3 Eguily Realty Corp.y. Key Biscayne Property Taxpaver's Association. Inc.. 369 So.2d 996 f f laid DCA 1174)1. The association urges, however, that if it is not "aggrieved" sufficiently to have state court standing, it nevertheless is aggrieved for purposes of review by the Board of County Commissioners. Although the appellees have referred us to two foreign decisions in which the requirement of aggrievement was lowered to facilitate administrative appeal by representative groups, we are not disposed to embrace their holdings. Contra our decision, Douglaston Ovic ASSOCiMi011. 111. v. Galvin. Y, N.12d i.. 324 N.E 2d 317. End of Document Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 364 N.Y.S.2d 830 (1974); East Camelback Homeowners Association v. Arizona Foundation for Neurology and PSyclii lrv, 19 t18, O] P.'Li 241 (11974). If Dade County wishes to liberalize access to its local tribunals, it may undertake to do so. We have considered the other arguments of appellees, and find them to be similarly without merit. Therefore we have concluded that the circuit court erred in denying the writ of prohibition. For the reasons stated the order appealed is reversed. Reversed. All Citations 385 So.2d 129 © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 20'17 Thomson Reuters. No claim to original U.S Government Works. 2 Renard v. Dade County, 261 So.2d 832 (1972) KeyCite Yellow Flag - Negative Treatment Superseded by Statute as Stated in Pinecresl Lakes, Inc v Shidel, Fla.App. 4 Dist., September 26, 2001 261 S0.2d 832 Supreme Court of Florida. Grace RENARD, Petitioner, V. DADE COUNTY, a political subdivision of the State of Florida, et al., Respondents. Submitted into the public Record for item(s)_ On 05-25-2017. PZ.15 claim such an interest. F.S.A. §§ 176.11, 176.16. 7 Cases that cite this headnote 121 Zoning and Planning 4 --Right of Review; Standing 414Zoning and Planning No. 41388. 414XJudicial Review or Relief 414X(A)In General April 19, 1972. 414k1584Right of Review; Standing 414kl585In general (Formerly 414k571) Rezoning proceeding. The zoning officials rezoned tract from industrial to multiple family residence and abutting property owners sought certiorari. The Circuit Court for Dade County, Grady L. Crawford, J., entered ruling, and abutting property owner appealed. The District Court of Appeal, 249 So.2d 500, affirmed, and writ of certiorari issued. The Supreme Court, Boyd, J., held that owners of property abutting property sought to be rezoned from industrial to multiple family residence, with increased setback restrictions different in kind from community generally, had standing to bring suit attacking rezoning ordinance as not fairly debatable. Affirmed. West Headnotes (9) I'1 Zoning and Planning Gr -Right of Review; Standing 414Zoning and Planning 414XJudicial Review or Relief 414X(A)In General 414k1584Right of Review; Standing 414k1585In general (Formerly 414071) The aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question; the interest may be one shared in common with a number of other members of the community as where an entire neighborhood is affected, but not every resident and property owner of municipality can, as a general rule, An individual having standing to challenge proposed zoning action must have a definite interest exceeding the general interest in the community good shared in common with all citizens; so-called "spite suits" are not tolerated. F.S.A. §§ 176.11, 176.16. 6 Cases that cite this headnote 131 Zoning and Planning 5F -Modification or amendment 414Zoning and Planning 414XJudicial Review or Relief 414X(A)In General 414k1584Right of Review; Standing 414kI587Modification or amendment (Formerly 414k571) In determining sufficiency of a party's interest to give standing to challenge action of zoning authority, factors such as proximity of his property to property to be zoned or rezoned, character of the neighborhood, including the existence of common restrictive covenants and set -back requirements, and the type of change proposed are considerations; fact that a person is among those entitled to receive notice under the zoning ordinance is a factor to be considered on the action of standing to challenge proposed zoning action but notice requirements of area are not controlled on question of standing. F.S.A. §§ WESTLAW -_J? I�Oi�iS�.'li I :I; ! 1",v C1 cl'i5 .0 C;IfIc,I <) .5 City Clerk Submitted into the public Record for item(s) On 05-25-2017 Renard v. Dade County, 261 So.2d 832 (1972) PZ.15 City Clerk 176.1 l , 176.16. 414k1584Right of Review; Standing 414k1586Validity of regulations (Formerly 414k571) 7 Cases that cite this headnote Persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to attack a validly 141 Zoning and Planning enacted zoning ordinance as being an 4 -Burden of Showing Grounds for Review unreasonable exercise of legislative powers. 414Zoning and Planning 414XJudicial Review or Relief 7 Cases that cite this headnote 414X(C)Scope of Review 414X(C)3Presumptions and Burdens 414k1684Burden of Showing Grounds for Review 414k16851n general 171 Zoning and Planning (Formerly 414k680.1, 414k680) 4 -Validity of regulations Even though a person has sufficient standing to 414Zoning and Planning challenge action of the zoning authority, he must 414XJudicial Review or Relief still carry the burden of proving that the 414X(A)In General challenged action was not fairly debatable. 414058411ight of Review; Standing 414k1586Validity of regulations (Formerly 4141<571) 1 Cases that cite this headnote An affected resident, citizen or property owner of the governmental unit in question has standing to challenge a zoning ordinance as void 151 Zoning and Planning because not properly enacted such as where r* -Regulations in general required notice has not been given. 414Zoning and Planning 414XJudicial Review or Relief 20 Cases that cite this headnote 414X(C)Scope of Review 414X(C)3Presumptions and Burdens 414k1684Burden of Showing Grounds for Review 414k1686Regulations in general ISI Zoning and Planning (Formerly 414k681) Q --Modification or amendment To have standing to enforce a valid zoning 414Zoning and Planning ordinance, party seeking enforcement must 414XJudicial Review or Relief show special damages; however, a lenient 414X(A)ln General application of that rule prevails. 414k1584Right of Review; Standing 414k]587Modification or amendment (Formerly 414571) 3 Cases that cite this headnote Owners of property abutting property sought to be rezoned from industrial to multiple family residence, with increased setback restrictions ISI Zoning and Planning different in kind from community generally, had 4 --Validity of regulations standing to bring suit attacking rezoning ordinance as not fairly debatable. 414Zoning and Planning 414XJudicial Review or Relief 411X(A)In General WESTLAW - 0'I- 7 hon-lson Reuters N'�, claim to ongin�,7�l LI S Government `: A,!;,.s Renard v. Dade County, 261 So.2d 832 (1972) 9 Cases that cite this headnote 191 Zoning and Planning Amendment or Rezoning, Sufficiency of Evidence 414Zoning and Planning 414XJudicial Review or Relief 414X(C)Scope of Review 414X(C)2Additional Proofs and Trial De Novo 414kl668Amendment or Rezoning, Sufficiency of Evidence 414k1669In general (Formerly 414k652.1, 414k652) Record established that rezoning of one parcel of land in unincorporated area from industrial to multiple family residence was "fairly debatable" and therefore was a valid exercise of power by the zoning authority. Cases that cite this headnote Attorneys and Law Firms *833 Eugene P. Spellman, of Law Offices of Eugene P. Spellman, Miami, for petitioner. Stuart Simon, County Atty., and St. Julien P. Rosemond, Asst. County Atty., and Paul Siegel, of Sinclair, Louis, Sand & Siegel, Miami, for respondents. Opinion BOYD, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 249 So.2d 500. Jurisdiction is based on the certification of the District Court under *834 Article V, s 4(2) of the Florida Constitution, F.S.A., that the decision sought to be reviewed passes upon a question of great public interest, to -wit: `The standing necessary for a plaintiff to (1) enforce a valid zoning ordinance; (2) attack a validly enacted Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk zoning ordinance as not being fairly debatable and therefore an arbitrary and unreasonable exercise of legislative power; and (3) attack a void ordinance, i.e., one enacted without proper notice required under the enabling statute or authority creating the zoning power.' Petitioner Renard and respondents Richter, owned certain adjoining properties in the unincorporated area of Dade County zoned IU -2, industrial. The Richters applied for a rezoning of their parcel. The Board of County Commissioners ultimately permitted a rezoning from IU -2 to multiple family residence with certain exceptions relative to a nine -hole golf course and a variance for private, in lieu of public, roads. This was in accordance with the recommendations of the planning board as approved by the zoning appeals board of the county. Petitioner was an objector in the zoning proceedings held before the Dade County Zoning Appeals Board and an objector before the Board of County Commissioners. Following adverse rulings by the appeals board and County Commission, petitioner sought certiorari before the Circuit Court pursuant to applicable county ordinances.' The Circuit Court ruled that petitioner, not having alleged a special interest, had no standing to prosecute the matter in the Circuit Court and, even if she had standing, the record adequately demonstrated that the issue was fairly debatable and petitioner would not have been entitled to the relief sought. On appeal, the District Court held that petitioner had sufficient standing to institute suit in the trial court but, that the rezoning in question was fairly debatable and therefore within the legislative discretion of the Board of County Commissioners. The District Court affirmed the judgment of the trial court but certified its decision as one passing on a question of great public interest. The decision of the District Court on the question certified is as follows:' `First, as indicated above, the appellant as an abutting property owner to the property rezoned would, in fact, suffer a special damage by virtue of the increased setback restriction different in kind from the community generally; and this would meet the test of special damage. But, even without meeting this test, we hold that these cases would not be applicable to a property owner within the area wherein actual notice was required to be sent to WESTLAW 2017 Thomson Reuie! s Pilo cl�1inn to ong!m l lJ S Governn-,er!1 Works Renard v. Dade County, 261 So.2d 832 (1972) him prior to any rezoning hearing. Anything to the contrary said in S. A. Lynch Investment Corporation v. City of Miami, supra, is hereby specifically receded from. We further note that there is a distinction in the cases relied on by the County when there is a proceeding in which a plaintiff seeks to enforce an existing zoning ordinance, such as a violation of a setback requirement, special damage is necessary, and no special damage is necessary when a plaintiff seeks to *835 have an act of a zoning authority declared void or is within the immediate area to be affected. Hartnett v. Austin, Fla.] 956, 93 So.2d 86; Josephson v. Autrey, Fla.1957, 96 So.2d 784. In other words, we hold special damage must be shown when a taxpayer or property owner seeks to enjoin the violation of an existing ordinance (i.e. Boucher v. Novotny, F1a.1958, 102 So.2d 132; Conrad v. Jackson, Fla.1958, 107 So.2d 369), But need riot be shown if the taxpayer or property owner is within the affected range of the property which requires actual notice before the rezoning made may be considered by the legislative body (Hartnett v. Austin, supra; Elwyn v. City of Miami, Fla.App.1959, 113 So.2d 849; Friedland v. City of Hollywood, Fla.App.1961, 130 So.2d 306; Vol. 3, American Law of Zoning, Anderson, s 21.05, p. 558), Or when he seeks to review an alleged void act. Hartnett v. Austin, supra; Josephson v. Autrey, supra; Rhodes v. City of Homestead, Fla.App.1971, 248 So.2d 674 (opinion filed May 25, 1971). Therefore, we find that in the instant case the appellant had the standing to institute the suit in the trial court.' (Emphasis supplied.) In the years following this Court's decision in Boucher v. Novotny,' a split has developed between the various District Courts on the issue of standing to sue on zoning matters. The Boucher case was a suit to enjoin the violation of the setback requirements of a municipal zoning ordinance. The Bouchers sought to obtain mandatory injunetivc rclief to compcl the Novotnys to remove allegedly illegal encroachments constructed on their motel. The City had approved the building plans for the Novotny's motel which included the complained of encroachment. The properties of the parties located in the City of Clearwater, were separated by a sixty -foot wide street. The Bouchers attempted to allege special damages by reason of proximity and by reason of being within the zoning area subject to the same setback requirements as the Novotny's property. This Court held, however, that the Bouchers did not have sufficient standing to sue and stated the following rule:' `We, therefore, align ourselves with the authorities which hold that one seeking redress, either preventive or corrective, against an Alleged violation of a municipal WESTLAW0'! i Thomson Reuiers Iv10 clai;n tc Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk zoning ordinance must allege and prove special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' (Emphasis supplied.) The `special damage' rule of the Boucher case is an outgrowth of the law of public nuisance.' Zoning violations have historically been treated as public nuisances not subject to suit by an individual unless that individual has suffered damages different in kind and degree from the rest of the community. The Boucher rule was not intended to be applied to zoning matters other than suits by individuals for zoning violations.' The general rule regarding standing to contest the action of a zoning authority was *836 stated by this Court in Josephson v. Autrey:' `We have on numerous occasions held that persons adversely affected by zoning ordinances or the action of zoning agencies have a status as parties sufficient to entitle them to proceed in court to seek relief.' To like effect is this Court's decision in Hartnett v. Austin! In Wags Transportation System v. City of Miami Beach,' this Court held that homeowners in a zoning district would be permitted to intervene in an appeal from a decree breaking zoning restrictions and commercializing the area where their homes were located. The District Court of Appeal, Third District, in Elwyn v. City of Miami,"' held that abutting homeowners were entitled to maintain a suit challenging an ordinance granting a variance for a gasoline service station. On petition for rehearing, the Boucher case was raised by the zoning authority and distinguished by the District Court as follows: `That case (Boucher) was not applicable here because of material difference in the factual situations presented in the two cases. `The instant case was not one dealing with the violation of a zoning ordinance, but one which challenged the validity of an amendatory zoning ordinance, which, by granting a variance amounting to spot zoning, permitted appellees to put their property to a liberal business use (gasoline service station), prohibited in the more restricted R-3 classification for which the area involved was zoned. The right of an adjacent or nearby home owner directly affected by an alleged improper intrusion of such liberal business to challenge the validity thereof, is recognized.' oriai -,Fd U 5 Government UVorl<s Renard v. Dade County, 261 So.2d 832 (1972) A similar case is that of Friedland v. Hollywood," wherein the District Court of *837 Appeal, Second District, held void an ordinance which would have allowed the variance for the construction of a service station in the vicinity of property owned by the plaintiffs. Some of the foregoing cases attacking the validity of zoning ordinances came to the Circuit Court as petitions for writ of certiorari to review actions of the zoning board of adjustment under Florida Statutes Chapter 176, F.S.A.; others originated in the Circuit Court. On the question of standing to sue there is no basis for distinguishing between cases reaching the courts after appeal to a zoning board, in areas where such boards exist, and those cases originating in the court system."- Florida Statutes s 176.11, F.S.A., provides for appeals to the zoning board of adjustment by `any person aggrieved.' Florida Statutes s 176.16, F.S.A., provides that `any person aggrieved' by the decision of the zoning board of adjustment may petition the Circuit Court for writ of certiorari. Ill 121 An aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question. The interest may be one shared in common with a number of other members of the community as where an entire neighborhood is affected, but not every resident and property owner of a municipality can, as a general rule, claim such an interest. An individual having standing must have a definite interest exceeding the general interest in community good share in common with all citizens. So-called `spite suits' will not be tolerated in this area of the law any more than in any other. 131 In determining the sufficiency of the parties' interest to give standing, factors such as the proximity of his property to the property to be zoned or rezoned, the character of the neighborhood, including the existence of common restrictive covenants and set -back requirements, and the type of change proposed are considerations. The fact that a person is among those entitled to receive notice under the zoning ordinance is a factor to be considered on the question of standing to challenge the proposed zoning action. However, since the notice requirements of the many zoning laws throughout the State vary greatly, notice requirements are not controlling on the question of who has standing. Persons having sufficient interest to challenge a zoning ordinance may, or may not, be entitled to receive notice of the proposed action under the zoning ordinances of the community. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 141 It is to be remembered that even though a person has sufficient standing to challenge the action of the zoning authority, he must still carry the burden of proving that the challenged action of the zoning authority was not fairly debatable." ISI The question certified to this Court, set out supra, has three parts. Part (1) deals with standing to enforce a valid zoning ordinance. The Boucher rule requiring special damages still covers this type of suit. However, in the twenty years since the Boucher decision, changed conditions, including increased population growth and *838 density, require a more lenient application of that rule. The facts of the Boucher case, if presented today, would probably be sufficient to show special damage. 161 Part (2) of the question certified to this Court deals with standing to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative power. As indicated above, persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to sue. 171 Part (3) of the question certified deals with standing to attack a zoning ordinance which is void because not properly enacted, as where required notice was not given. Any affected resident, citizen or property owner of the governmental unit in question has standing to challenge such an ordinance. 14 181 191 The District Court found that petitioner Renard had sufficient standing to attack the rezoning here in question, but, on review of the record, determined that the rezoning was `fairly debatable' and so was a valid exercise of power by the zoning authority. We agree. Accordingly, and for the foregoing reasons, the decision of the District Court of Appeal is affirmed. It is so ordered. ROBERTS, C.J., and ERVIN, CARLTON and McCAIN, JJ., concur. All Citations 261 So.2d 832 WESTLAW 20 17 Thor son ReLlIC11 !v10 to criciirad U S Government �,Yoi ,s Submitted into the public Record for item(s)_ On 05-25-2017 . Renard v. Dade County, 261 So.2d 832 (1972) Footnotes PZ.15 City Clerk Metropolitan Code of Dade County, s 33-316: 'No Person aggrieved by any zoning resolution, order, requirement, decision or determination of an administration official or by any decision of the zoning appeals board may apply to the Court for relief unless he has first exhausted the remedies provided for herein and taken all available steps provided in this article .. it is intended and suggested that such decision may be reviewed by the filing of a petition for writ of certiorari in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, in accordance with the procedures and within the time provided by the Florida Appellate Rules for the review of the rulings of any commission or board; and such time shall commence to run from the date of the decision sought to be reviewed.' (Emphasis supplied.) 2 Renard v. Dade County, 249 So.2d 500, 502 (Fla.App.3rd 1971). 3 102 So.2d 132 (Fla.1958) 4 Id. at 135. 5 Boucher v. Novotny, 102 So.2d 132, 135 (Fla 1958); North Dade Bar Assoc. v. Dade -Commonwealth Title Ins, 143 So.2d 201, 205 (Fla.App.3rd 1962): "* * * A public nuisance is an offense against the State, and as such is subject to abatement or indictment on the motion of the proper governmental agency. * * * "* * * An individual cannot maintain an action for a public nuisance as such. But when an individual suffers special damage from a public nuisance, he may maintain an action.' 'This rule has been applied in Florida to suits to enjoin a zoning violation. Boucher v. Novotny, Fla.1958, 102 So.2d 132.' 6 Boucher has been subject to criticism even as applied to zoning violations: 12 Univ.Fla.L.Rev., Third Parties in Zoning, 16, 23, 40 (1959). 7 96 So.2d 784, 787 (Fla.195/). 8 93 So.2d 86, 90 (Fla. 1956): 'We encounter no difficulty in concluding that the appellees were entitled to bring the suit. They occupied their homes immediately across the street from the proposed parking area. They relied on the existing zoning conditions when they bought their homes. They had a right to a continuation of those conditions in the absence of a showing that the change requisite to an amendment had taken place. They allege that the contemplated change would damage them and that it was contrary to the general welfare and totally unjustified by existing conditions. This gave them a status as parties entitled to come into court to seek relief. True their rights were subject to the power of the city to amend the ordinance on the basis of a proper showing. Nonetheless, they have a right to insist that the showing be made.' See also, 35 Fla.Jur., Zoning Laws, s 30: 'Persons adversely affected by zoning ordinances or the action of zoning agencies have a status as parties sufficient to entitle them to proceed in court to seek relief.' 88 So 2d 751, 752 (Fla.1956): 'The petition for leave to intervene alleges that petitioners are within the same zoning district as the property described in the complaints in the consolidated causes, that the decree destroys the value of their property because petitioners have homes on said property which they use for residential purposes, therefore the decree of the lower court breaking these zoning restrictions and commercializing the district renders their property less suitable for residential purposes. Petitioners' property was purchased on the strength of the zoning ordinance and in reliance upon the fact that all property within the zoning district would be maintained as residential property. * * * 'We think the petition to intervene showed such an interest in the res that the ends of justice require that it be granted. * * Nothing is more sacred to one than his home and the petitioners should have been permitted to come in and bring their rights in this to the attention of the court.' 10 113 So.2d 849 (Fla.App.3rd); cert. denied 116 So.2d 773, (Fla.1959). WESTLAW : 0 1 , TIT')nlSC�fl Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Renard v. Dade County, 261 So.2d 832 (1972) 11 130 So.2d 306 (Fla.App.2d 1961). 12 2 Rathkopf, Zoning and Planning, 36-1 (1971): 'Generally, any person who can show that the existence or enforcement of a zoning restriction adversely affects, or will adversely affect, a property interest vested in him or that the grant of a permit to another or rezoning of another's land will similarly affect him, has the requisite justiciable interest in the controversy, and is a proper party plaintiff. In this aspect, the right of a litigant to sue for declaratory judgment or for an injunction is based upon the same criteria as are determinative of the status of a petitioner as a 'party aggrieved' to bring certiorari to review the determination of a board of appeals or adjustment. The difference, if any, relates only to the forum and form of the remedy.' (Emphasis supplied.) 13 City of Miami v. Hollis, 77 So.2d 834 (Fla.1959); City of Jacksonville v. Imler, 235 So.2d 526 (Fla.App.1st 1970). 14 See e.g., Rhodes v. City of Homestead, 248 So.2d 674 (Fla.App.3rd 1971); Knowles v. Town of Kenneth City, 247 So.2d 748 (Fla.App.2d 1971). End of Document © 2017 Thomson Reuters No claim to original U S Government Works WESTLAW 2017 Thomson Reuiers No claim to original U S Government VVorks City Commission Meeting Minutes Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk October 27. 2016 PZ.10 ORDINANCE First Reading 1032 AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH Department of ATTACHMENT(S), AMENDING ORDINANCE NO. 10544, AS Planning and AMENDED, THE FUTURE LAND USE MAP OF THE MIAMI Zoning COMPREHENSIVE NEIGHBORHOOD PLAN, PURSUANT TO SMALL SCALE AMENDMENT PROCEDURES SUBJECT TO SECTION 163.3187, FLORIDA STATUTES, BY CHANGING THE FUTURE LAND USE DESIGNATION OF THE ACREAGE DESCRIBED HEREIN OF REAL PROPERTIES LOCATED AT APPROXIMATELY 29 NORTHWEST 42 STREET, 30 NORTHWEST 44 STREET AND 4202- 4330 NORTH MIAMI AVENUE, MIAMI, FLORIDA, FROM " DUPLEX RESIDENTIAL" AND "LOW DENSITY RESTRICTED COMMERCIAL" TO "MAJOR INSTITUTIONAL, PUBLIC FACILITIES, TRANSPORTATION AND UTILITIES"; MAKING FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. MOTION TO: Continue RESULT: CONTINUED MOVER: Frank Carollo, Commissioner SECONDER: Francis Suarez, Commissioner AYES: Hardemon, Russell, Gort, Carollo, Suarez Note for the Record: Item PZ.10 was continued to the November 17, 2016 Planning and Zoning Commission Meeting. Note for the Record. A motion was made by Commissioner Gort, seconded by Vice Chair Russell, and was passed unanimously, with Commissioner Suarez absent, to grant Kirk Munguia Intervenor status pursuant to Section 7.1.4.3(d) of Miami 21, for Item PZ.10. Note for the Record: A motion was made by Commissioner Gort, seconded by Chair Hardemon, and was passed unanimously, with Commissioner Suarez absent, to deny Susan Braun Intervenor status pursuant to Section 7.1.4.3(d) of Miami 21, for Item PZ. 10. Chair Hardemon: Okay. I know there should be one or hvo other -- Victoria Mendez (City Attorney): On a different item, there's -- I believe four people requesting intervener status, and if they'd want to approach --1 think Mr. Cruz is one of them. This -- Chair Hardemon: We can address Mr. Cruz first. Commissioner Gort: He's automatic. Chair Hardemon: Hmm? Commissioner Gort: Mr. Cruz is automatic Vice Chair Russell: He has permanent intervener status on every issue in Miami. City of Miami Page 139 Printed on 11512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: Let's see -- Mr. Cruz, can you take this lectern, please? Ms. Mendez: Though Mr. Cruz is going to be very disappointed, 1 don't think he qualifies, based on the Renard case. Chair Hardemon: Before we go there, let's allow Mr. Cruz to briefly tell us why you qualms for intervener status, and then I'll allow the City Attorney to give her position, and for us to mull over the facts. Elvis Cruz: Thank you, Commissioner. Elvis Cruz. Chair Hardemon: You're recognized. Mr. Cruz: Elvis Cruz, 631 Northeast 571h Street. Commissioner, the key word is "interest. " I'm not -- I don't have a financial interest, but I do have an interest. You know me. You know why I'm here. This is my 1361h appearance at City Hall. Chair Hardemon: You keep a --? Mr. Cruz: Yes, 1 do keep a running total since 2003, but there were many before that that I hadn't started counting. And you know I'm a neighborhood advocate, and I'm a strong believer in protecting neighborhoods, especially single-family neighborhoods. So, in that sense, my interest is far greater than that of the general public. 7 h law does not say I have to have a financial interest. it says, "Do I have an interest greater than that of the general public?" And that is the basis for me requesting qualified intervener status. Chair Hardemon: Thank you very much. Madam City Attorney? Mc. Mendez: Thank you. Vice Chair Russell: Define "interest. " Ms. Mendez: This is the same analysis in the case of Renard v. (versus) Dade County, and basically, in this case -- Chair Hardemon: And can you -- Ms. Mendez: -- it has to do -- I'm sorry. Chair Hardemon: -- well, yeah. Just tell us a little bit about Renard v. Dude County so we can understand the context. Ms. Mendez: It pretty much establishes standing for purposes of zoning cases and who are aggrieved parties, and people that are adversely affected. And in this case, it has particular factors in determining the sufficiency of somebody having standing. And the things are basically proximity of the property to the property being zoned, any changes to the character of the neighborhood, and the type of change proposed affect whether or not somebody is given intervener status. Also, something to think about is whether they were noticed as a part of the application, and that's a further consideration. Based under these qualifications -- and I know that Mr. Cruz is a champion of people's rights and all, but -- he obviously can give his opinions, but he is not a qualified intervener for purposes of the case lam. If he did abut the property, totally different scenario. Mr. Cruz: Well, Commissioner, having heard that, it is100 percent true that case law supersedes City policy, City lain, so I yield to the case law of the State of City ufMiurni Page 140 Printed on 115/2017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Florida; moreover, this gentleman here, who you're about to hear from in a little bit, he is an abutting property owner and -- Chair Hardemon: So we'll get there when we get there, but I -- Mr. Cruz: -- he will ask to -- he can call witnesses. Chair Hardemon: I understand -- we understand how the intervener -- Mr. Cruz: Yeah. Chair Hardemon: -- status works, but I appreciate you yielding to the case law -- Mr. Cruz: Yeah. Chair Hardemon: -- so we don't have to make a decision, so we'll just move forward with the next -- Mr. Cruz: Okay. Chair Hardemon: -- individual, since you don't qualms, okay? Mr. Cruz: Thank you. Chair Hardemon: Thank you very much. Sir -- Kirk Munguia: Okay. Good afternoon. Chair Hardemon: -- before you -- Mr. Munguia: Sorry about that. Chair Hardemon: -- speak -- no problem. How many -- is it -- it's just three more individuals? Ms. Mendez: Three more. Chair Hardemon: Okay. Can -- Susan, can you take this lectern over here? Mr. Munguia: Yes. Unidentified Speaker: What is it, Chairman? Chair Hardemon: It doesn't matter. He can take this one. We all -- we want to keep one free, just in case we call someone else to the lectern; that's why I'm asking everyone to come to this side, okay? Sir, so -- Mr. Munguia: Yes, sir. Chair Hardemon: -- once again, what I'm doing is I'm asking individuals -- because I know you made a request -- Well, first of all, you made a request to become an intervener on item PZ. 10 and PZ. 11, and so, because you made that request, what I'm asking for you to do is put on the record the facts that you believe are sufficient to show that you deserve intervener status, and that it should be granted. And so, we'll have the City Attorney give her opinion, and then there may be a motion from this board to decide whether or not that status is granted, but I want you to understand that what the intervener status, if it is granted, you become somewhat -- City of Miami Page 141 Printed on 11512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 what is a party. These are not matters where it's just about lawyers, where you get up and you say what you believe, but understand that in a Planning & 'Zoning hearing case, there are lawyers that represent different parties and they put on evidence and that evidence can be tested. And the way you should lest that evidence is through cross-examination and things of that nature. And so ]just want you to be aware that if you become an intervener, in case, to be prepared for different objections from the other parties regarding evidence and things of that nature. So what I'm asking you to do is not necessarily to hire an attorney, because I'm not telling you to do that; it would be an ideal, but not necessarily "the" thing to do. But for all of us who are -- especially when we're in this matter and we're thinking about these different issues, there are other laws that affect how we govern ourselves at the City Commission level. So, for instance, lobbying laws, where people have to register as lobbyists in order to convince City Attor -- City Commissioners of certain facts. So just be prepared for different objections from those individuals who are interested in the matter, who may not see things your way, okay? So really start to consider -- and I'm sure the gentleman standing to your left can assist you -- but really start to consider what it is that you're stepping into when you want to defend your position. Understood? Mr. Munguia: Correct. Chair Hardemon: But what I'm asking you to do right now is to just state the facts that you believe grant you intervener status. Mr. Munguia: Correct; yes, I do. Chair Hardemon: Okay. What facts do you believe grant you intervener status? Mr. Munguia: The whole -- I live right next door to this whole -- Todd B. Hannon (City Clerk): Chair, can I get the speaker's name? Chair Hardemon: Yeah. Mr. Mannon: I'm sorry. Chair Hardemon: Slate your name and address for the record, please. Mr. Munguia: I'm sorry. My name is Kirk Munguia, living in 37 Northwest 42nd Street for 37 years. Chair Hardemon: Okay. Mr. Munguia: Right next to the whole issue with the parking garage thing, which they want to establish there on the corner of -- this would be PZ. 10, 11 -- PZ 10 and also H. Chair Hardemon: And during the time that you were living there, was that property a place where there was a dwelling on, or was it always a vacant property that was commercial? Like, what was the status of that property during the time you were there? Mr. Munguia: It was a home to long -- a vet that passed away, that he was on Vietnam and we --he was a neighbor of ours for years, plenty of years. He passed away, and one way or the other -- I don't know if -- who took over the property, but there was homes, like at least like five, six homes in that property for so many years. City of Miami Page 142 Printed on 1/512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: And what's there now? Mr. Munguia: It's just palm trees and -- right next to it, on that -- there's a house on -- but not on the -- on the lot right next to it, but it's a lot with, you know, palm trees and mango trees and -- like three or four mango trees. Chair Hardemon: And can you briefly describe what would be the effect on the character of the neighborhood :f this proposed zoning change was granted? Mr. Munguia: What would be the effect? Chair Hardemon: Yes. Mr. Munguia: Okay. The effect is 40 years --just like I've been there 40 years, 37 years. My parents have been therefor 40 years. We have neighbors --not talking about four years, three years that just came in; talking about neighbors that been living there for like 30, 40, 50 years that we have seen the growth of the neighborhood. And one way or the other, it's been like a family. Then, for a humongous parking lot to come in, bring in so many cars, changing streets -- also, you have to understand now, when you have all these cars coming in and parking, noise, we have kids, as well. And if I, you know, could present a diagram, as well? Chair Hardemon: Okay. Ms. Mendez: Sir, could you say your address one more time? Mr. Munguia: I'm sorry? Ms. Mendez: Your address again? Mr. Munguia: It's 37 Northwest 42nd Street. Ms. Mendez: 37 Northwest --? Mr. Munguia: 42nd Street. Miami Ave. Ms. Mendez: Thank you. Chair Hardemon: Okay. Thank you very much, sir. Madam City Attorney, you have an opinion? Neisen Kasdin: Mr. Chairman, may I make --file objections? Ms. Mendez: Sir? Chair Hardemon: This is why I want that lectern clear, right. What I'll do, I'm going to allow the City Attorney to give her opinion about the matter, but I'll also -- because 1 know you would be a -- you are a party to this issue. Mr. Kasdin: Yes. Chair Hardemon So I'll allow you an opportunity to say a few things to see what you believe. Mr. Kasdin: Yeah. Mr. Chair, this is just regarding the underlying facts, and I just wanted to bring it out for the record to be clear. I'm not certain myself-- if I may, just two questions? City of Miami Page 143 Printed on 11512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: Can you state your name and where you work? Mr. Kasdin: Neisen Kasdin; Akerman, LLP (Limited Liability Partnership), representing Oak Plaza Associates. Just really one -- two questions as to his standing. Number one, Mr. Munguia, who owns the property that you're speaking about? Mr. Munguia: Well, it's my. parents' property. Mr. Kasdin: Your parents' property? Mr. Munguia: Correct. Mr. Kasdin: Okay. .4nd do you currently live at that property? Mr. Munguia: Yeah; for now, yes. Yes, I do currently live at the property, as well. Mr. Kasdin: And that is as since -- if I may ask, since when? How long have you lived there? Mr. Munguia: For 37 years. Mr. Kasdin: Hold on. You said 'for now, "meaning that -- implying that you lived somewhere else for some period of time, so how recently have you gone back to that property? Mr. Munguia: 1 mean, couple of years back, went to college. You know, from there on, you know, I was in the military, so I came back; just probably one year that I just come back. I've been bark to -- Mr. Kasdin: Okay. Just wanted to get those facts on the record, Mr. Chair. Chair Hardemon: Okay. And Madam CityAttorney. Ms. Mendez: And just to be clear, you're under oath, so anything you say -- Mr. Munguia: Correct. Ms. Mendez: Okay. All right. Mr. Munguia: Yeah, I live there. I reside there on 37 Northwest 42nd Street. Chair Hardemon: Understood. Ms. Mendez: All right. Chair Hardemon: And Madam City Attorney, just for the record, so the record is clear, within the case, is there a difference in how a person is treated if they are a resident of the property versus an owner? Ms. Mendez: It -- I believe the case law has to do with ownership; if you give me one second. Chair Hardemon: How old is your father? Mr. Munguia: He's back there. He's -- City of Miami Page 144 Printed on 11512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: Uh-huh, so -- Mr. Munguia: -- 70. Chair Hardemon: -- 70? Did he do that to you? Mr. Munguia: Yeah, it was at work. Chair Hardemon: I'm just joking. Mr. Munguia: No, no, no, (UNINTELLIGIBLE). Excuse me. Do 1 have the right to speak on the behalf of my father, as well? Chair Hardemon: It would be best if you brought him to speak for you, but, I mean, you can say some things -- I would suggest that he represent himself versus you representing for him; however, you can state some things that he may feel, but understand that you represent yourself- he represent himself. You understand? Mr. Munguia: Okay. Chair Hardemon: But were just trying to get to the issue about the intervener status. Mr. Munguia: Okay. Chair Hardemon: Certainly, if -- I mean, he qualifies if -- say, for instance, if the opinion is that you don't qualms but he qualifies, you still have representation from the household. So we're just trying to figure out this issue, because we want' to gel it right, okay? Ms. Mendez: Chairman, it says: "The aggrieved or adversely affected person having standing to sue as a person who has a legally recognizable interest, which is or will be affected by the action of the zoning authority in question. " Chair Hardemon: I would say -- Ms. Mendez: Arguably, a legally recognizable interest would have to be someone that's on title, I would assume, but it doesn't really clarify that right now. Chair Hardemon: Does it define "interest"? Do you mean interest as in --? Mr. Munguia: Well -- Ms. Mendez: An affected resident, citizen, or property owner of the governmental unit in question has standing to challenge a zoning ordinance. Chair Hardemon: Okay. So I think, under what he's just staled, he has standing; I would say so. A resident -- Ms. Mendez: Affected resident? Chair Hardemon: Correct, correct. And so, with that being said, I would move -- well, I would ask this body to move that we grant intervener status to the individual that is before us right now. Commissioner Gort: Move it. City of Miami Page 145 Printed on 11512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Vice Chair Russell: Second. Chair Hardemon: It's been properly moved and seconded. Any further discussion? Seeing none, motion passes. We have two other individuals. Ms. Mendez: We have two other individuals. Chair Hardemon: And I will say this: So now, there are one -- the City is another party, so there are three parties now to this item. So what you're asking for is to also be placed as a party. So you, too, have a separate presentation to make as an intervener, so I just want that to be very clear. Ms. Mendez: Right. Now, these two -- Chair Hardemon: Are they for -- it's for PZ. 10 and PZ. 11, correct? Susan Braun: Yes, Chairman. Chair Hardemon: Okay. Ms. Mendez: Yes. Chair Hardemon: Can you please lake this lectern? Ms. Braun: Could I please what? Chair Hardemon: Take this lectern, in front of this one. Us Braun. Sure. Chair Hardemon: You can have a seat. Mr. Munguia: Thank you. Chair Hardemon: Okay. And can you state your name and address for the record, please? Ms. Braun: Susan Carrie Braun, 45 Northwest 44th Street, Miami 33127. Chair Hardemon: Can you state the facts that you believe would grant you intervener status in this matter? Ms. Braun: I'm 53 feet away from the proposed site, and through my activity of the Buena Vista Neighborhood Association, our group is the only HOA (Homeowners Association) who has been representing the true position of the neighbors, and 1 have documentation to prove this. Chair Hardemon: Okay. When you say 53 feet, is that the next property -- is that the property next door to it, or is that two properties over? Ms. Braun: Through the isosceles triangle, "A" square, "B" square, "C" square, so I'm across the street, 20; and 50 over, which is 53. Chair Hardemon: So you're across the street? Ms. Braun: And then diagonal. I'm diagonally across the street. City of Miami Page 146 Printed on 115/2017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: So is there a property that is directly across the street that is a home? Ms. Braun: Yes. Chair Hardemon: And you live next door 10 that home? Ms. Braun: Across the street. Chair Hardemon: Okay. Vice Chair Russell: A 53 foot hypotenuse. Chair Hardemon: Right. Ms. Braun: Thank you. Chair Hardemon: So it's like -- thank you. Madam City Attorney? Commissioner Gort: Madam Attorney, Madam Attorney. Chair Hardemon: Madam City Attorney, have you considered the facts that she's presented before us? Ms. Mendez: I'm sorry? Chair Hardemon: Have you considered the facts that she's presented before us that she is a property oivner who is across the street, next door to a home? Ms. Mendez: That's a determination of fact for the Commission to decide. I mean, abutting is definitely abutting. I think, then, you have to determine whether it's something that you feel is close enough in proximity, based with the -- all the other considerations that we've discussed before that would qualify her as an intervener. Chair Hardemon: Can you state your name -- I mean your address again, for the record? Ms. Braun: 45 Northwest 401h Street -- 40 -- I'm sorry -- 44th Street. Chair Hardemon: And Madam City Attorney, in the case law, it doesn't state a particular distance as an -- Ms. Mendez: Ii just says "proximity, " which is for the board to determine. Ms. Braun: And if you like -- I was trying to be brief, but if you'd like, I could add, as far as changing the character of the neighborhood and how are they affected, if they're going to build a five -story parking garage with no setbacks diagonally across the street from me, a little bit over 50 feet, it's going to block sunlight, it's going to block breeze, it's going to increase traffic, it's going to be so dangerous, and it will considerably change and diminish my quality of life and the quality of life of those who have asked me to help them in this fight. Chair Hardemon: Right. You know, I will say that in lain, there's something called "a slippery slope. " Ms. Braun: Sorry? City of Miami Page 147 Printed on 1/5/2017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: In law, there's something called "a slippery slope. " Ms. Braun: Mm-hmm. Chair Hardemon: And basically, what that means is that be careful on the decision that you make, because from that decision that you make, it could affect decisions that you will have to make in the future. So the question in this instance is: We know for a fact that, for instance, an individual that abuts the property is someone that is in close proximity; moreover, he's right next door to it, so you're the most affected person. And so here, it's a situation where you're not next door, like the gentleman before you, but you're across the street. And then, from across the street, you're not the property that is directly across the street, but you're the property that is next -- is next to the home that is across the street. And so because this does not ajf"ect your ability to voice your opinion about the matter, it doesn't affect your ability to assist the intervener in his status regarding this project, the project intervener status becomes effectively a party to what's occurring. And I think that when you're considering whether or not -- hoiv you move forward in a matter that is as serious as zoning changes, as serious as something in the way that it is, I think that we should probably draw the line at neighbors that are directly abutting the properly; or u neighbor that especiully is across the street, fur instance, directly across the street from the property, because they're most affected by the matters that's going to -- that are occurring. And so, you -- Ms. Braun: May I add -- oh, sorry, sir. Chair Hardemon: You can -- Ms. Braun: Commissioner Carollo? I'm sorry. Commissioner Carollo: No, the only thing that 1 wanted to mention is that, listen, we have hurdly ever, if ever had -- I don't know if yuu ivunl to cull it "heurings" or nul, on intervener status. And here, the have -- we're on our third. So 1 just -- I'm a little concerned about starting to set precedent when we -- at least I haven't fully studied this whole intervener issue. You know, with one or two, okay, but it's starling -- you know, it's starling to be -- what? We have four today, and again, I'm just concerned that, for lack of knowledge, we start selling a certain precedent that then we follow in the future. Ms. Braun: I understand, and -- Deborah [Wright: Can 1 speak on that really quickly? I -- Chair Hardemon: Ma'am. Ms. Wright: Okay. Ms. Braun: ]just want to -- if I may, I appreciate Ms. Wright. 1 did receive notice, which is according to our City Attorney, one of the criteria. And also, one of my arguments, which is -- I would like to make is that we've been excluded by the City from the process. We've been denied our right to process. Chair Hardemon: What do you mean? Ms. Braun: I have emails to the City; to the director of Planning, Mr. Garcia, and I sent him a video with documentation of all the impacted neighbors opposing. And still, they voted -- and I had -- was in constant contact with the planner on the City of Miami Page 148 Printed on 11512017 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk City Commission Meeting Minutes October 27, 2016 project, Mr. Snow. And I was told I would be invited to present. But, however, only the HOAs who have betrayed the neighbors were invited. And we have been denied our right to due process, our right to be included by the City. And I hope we don't -- I hope -- I'm hoping today we can amend that denial of our rights to be included in the process. Chair Hardemon: That's kind of the part that I'm most confused about, because when you express something as "a right to be included, " I want to be clear about what it is that you're describing, because the way you described it, I don't understand that right. So I want -- if there is a right that was affected, I want to know what it is. Madam City Attorney, Mr. Garcia? Ms. Mendez: Well, I think as to the basic facts that she's describing, Mr. Garcia could speak to that. I just wanted to clam the whole notice issue. If you remember, the three things that I've said have to do with proximity of the property -- to the property; the character of the neighborhood, whether it would be changed, and the type of change proposed are the considerations. Another consideration can be noticed; however, that is only -- because notice varies throughout the State, it is not a determining factor. Also, in the case of Renard v. Dade County, it was an abutting property owner. Honestly, we do run afoul of giving people who should not be interveners, per se, if we start extending to how many feet away, down the street, what have you, because -- Chair Hardemon: So you think that I'm incorrect by even saying that someone who's across the street -- Ms. Mendez: That could be -- Chair Hardemon: -- could be a stretch? Ms. Mendez: -- construed as abutting, but it's not in this case. I believe that the two determinations that we've made thus far with people that are definitely abutting the property are the right ones. 1 think that, unfortunately, this one is a little more attenuated. Ms. Braun: And if] may -- Chair Hardemon: And before you go on -- Ms. Braun: Sorry. Chair Hardemon: -- that right that she spoke of that she didn't have to participate in the process, Mr. Garcia? Francisco Garcia (Director, Planning & Zoning): As pertains to her ability to convey her concerns or opinions to the Planning & Zoning Department, I am advised by my colleagues that she has been met with and that she has been included in the public participation process; and, certainly, she has been notified, as an adjacent property owner, of all the public hearings that have taken place as part of this matter. So we consider that we certainly satisfied not only any right that she may have, but also any other privileges or considerations, by virtue of being an adjacent property owner. Chair Hardemon: Okay. And, ma'am, can you step to the side just a little bit? Because he's a party -- Mr. Kasdin: Here again, Neisen Kasdin. Just for the record, clarify it, the Planning City of Miami Page 149 Printed on 11512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Department organized two neighborhood meetings, and as Lorena Ramos said, there were some eight meetings of the neighborhood, as well. She's the head of the association. Ms. Braun was at those meetings. So the fact that she has just told you about is patently and knowingly false. She has been at meetings convened by your Planning Department on this specific issue. Ms. Braun: To which are you referring that it's false? Because I don't know what he means by 'false." That I attended a meeting? There's no denial. That I was excluded by the City of Miami Planning Department is what -- to which I'm speaking; not that I didn't voice my opinion at meetings, and I actually have -- which I need time for it -- the video to show a meeting recorded where we're at the stakeholders, Ms. Ramos' organization, but the entire -- they were locally against the garage. And she acted unilaterally, on her own. Mr, Kasdin: Ms. Braun, if you play back the tape, your first comments here this evening were that you have not been able to speak to the Planning Department or the Planning staff, and they haven't met with you. That is false. Ms. Braun: Excuse me. That is --that -- I don't think I said that. I had asked -- 1 don't have the email -- where 1 had requested of Mr. Garcia to be invited downtown with the other HOAs to present the true position of the people. And even before he made his decision -- the Planning Department made a decision -- they viewed this video. And so they're -- one of their reasons for giving approval is that the homeowners -- the neighbors wanted it, which is -- that is what is patently false here, and -- that is what is patently false. Chair Hardemon: So the way I described it earlier, sometimes there's opposition to something that is -- that passes with the majority. Many times, that -- hear what I'm --just hear what I'm saying to you. I'm not saying that that's what happened in this case, but sometimes --1 hate that I'm saying this -- but sometimes, the video doesn't always tell the whole story. We've heard that many times before, right? 1 haven't seen your video, and Pin sure that I'll have an opportunity to -- well, I don't think so. Have I seen this video? Ms. Braun: Yes Chair Hardemon: Okay. I'm sorry. Then I have seen that video. I've seen a lot of videos, and I apologize. But what I'm saying to you regarding the matter of intervener status, I don't think that you meet the qualifications for intervener status. And so that does not mean that your video won't be shared with the rest of the board. id,'e 71 find the time to do that. Particularly -- Ms. Braun: Today? Chair Hardemon: -- I don't think we're going to hear this today, because 1 think that as parties that are involved in this matter, that of an intervener and then those who are defending themselves against said intervener deserve an opportunity to prepare themselves for this matter. So much in the same way as Commissioner Suarez asked for a continuance for the items, I'm going to do the same thing, because there was -- added someone to the party. Ms. Braun: I can't hear you. Chair Hardemon: Because there was an added person to the party Ms. Braun: Could you repeat the last sentence? I didn't hear. City of Miami Page 150 Printed on 115/2017 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: Basically, what I'm saying to you is that because someone is already granted intervener status in this matter, I'm going to request that the board gives a continuance in this case so that all parties have the ability to defend their position adequately. Ms. Braun: I think it's also important for us to have intervener status so what happened at 4201 does not repeat itself. When the representative HOAs misrepresented that the neighbors wanted it and the board voted accordingly, and we could have countered it with proof to certain aspects, such as that one special case was untrue, because they own -- there are people who own different residential properties within our neighborhood that are trying to up -zone to commercial, and we could, you know, bring that up for the board, so they could make an informed judgment. Chair Hardemon: Just -- and we appreciate information like that. So, for instance, my staff -- I have staff members that are in the office. I have staff members that are sitting in the gallery right now. And so, any time there's an issue like that, that you know that something needs to be corrected for the record, because ive're going to err if we come up with a certain opinion, you should alert one of us, so that we can give that information. So we allow people to add in information such as that; that's something that, as a board member, I'm not happy that I missed. Ms. Braun: You mean before? Chair Hardemon: Hear what I'm saying to you. It's something as a board member that I'm hap -- that I'm not happy that I missed, but I learned from it that if you own a property, the next question I'm going to ask you: "Do you own the property next door to it?" You know, because it's affected our decision-making. But regarding this issue, simply on intervener status, I would ask that the board members move and second to support a denial of the intervener status in this matter with this individual. Vice Chair Russell: You need a motion? Chair Hardemon: Yes. Commissioner Gort: Move it. Chair Hardemon: It's been properly moved, and seconded by the Chairman. Mr. Hannon: Excuse me, Chair. Again, the motion on the floor? I'm sorry. Chair Hardemon: The motion on the floor would be to deny intervener status in this case for the individual stated. Any further discussion? Hearing none, all in favor, say „aye. If Mr. Hannon: Seconder was? I'm sorry. Chair Hardemon: I'm -- the Chair is the seconder. Mr. Hannon: Okay. Chair Hardemon: Motion passes. Ms. Braun: I'm sensitive to everybody's time and precedent. As long as we have one intervener, I'm okay with that. I don't need to have a hearing on my intervener status. City of Miami Page 151 Printed on 115/2017 City Commission Meeting Minutes Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk October 27, 2016 Ms. Wright: And will we have time to present? Chair Hardemon: Can you state your name for the record, please? Ms. Braun: I'm sorry. Ms. Wright: Deborah Wright. As long as I can be called as a witness by the other intervener. Chair Hardemon: Yeah, you can be. Ms. Wright: Then 171 save your time. Ms. Braun: And I'll have the time to present -- sir, Chairman, I'll have time to present? Chair Hardemon: Not right now. You'll have the same time allotted to all the other members of the community. However, if there is an intervener that wishes to use you as a witness, that intervener is perfectly allowed to use you as a witness in the case. And as a witness, you're allowed to present information that you believe is relevant to the issue at hand. Ms. Mendez: But that may be qualified by whether she's a -- you know -- witness type -- Chair Hardemon: But there are things that, as a witness, she can testes to. It may not be things that are super technical in nature, but, certainly, her observations, such as traffic flow, the location of the property, what happens on the street on a daily basis; those type of things. Ms. Mendez: I ask that, Mr. Chair, since it -- this, I think, will be continued, we have a little time to flush all that out since this is a new phenomenon right now under our code, so thank you. Ms. Braun: And Chairman, 1 had asked in advance, and 1 thought 1 received a 'yes" reply from your off ce for showing -- Chair Hardemon: To make a video, but this is different. This is intervener status, which is different from just presenting a video. So what I'm saying to you -- the first thing I said to you is that you will have an opportunity to present the video that you want to show, because you are a constituent and you want to show this in aid of your presentation, in aid of your testimony or -- I don't want to use the word, "testimony, " but your public comment, so you will be allowed to do that. That's my first statement. Ms. Braun: And I'll have the extra time afforded to me, which I asked your office in advance? Chair Hardemon: I'm not sure how long the video is, but I'll give you an amount of time that's reasonable to do what you need to do. Ms. Braun: Thank you. Chair Hardemon: You're welcome. Mr. Hannon: And my apologies, Chair. I do apologize, but 1 just want to make sure on that motion to deny intervener status, that was unanimous, 4-0? City of Miami Page 152 Printed on 11512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: That is correct. Mr. Hannon: Thank you. Chair Hardemon: Thank you. Is there any other person that asked for intervener status? Is that it? Is that everyone? Intervener status? Unidentified Speaker: No. Chair Hardemon: Okay. As 1 understand -- Ms. Braun: Oh, no, no. Sir, I'm --pardon me. At what point will I show the video so I can --? Chair Hardemon: Not today. What we've -- we're not going to hear the item today. Ms. Braun: We're not -- Chair Hardemon: You know why? You know why we're not going to hear it? Because it would be patently unfair to allow someone who is not prepared as an intervener to move forward with the case. So, essentially, he hasn't prepared all of his witnesses. He hasn't prepared his testimony that he wants to give. He hasn't done all those different things; and nor has the defense, or the applicant have an opportunity to prepare themselves for a intervener. So they might present more information. They might want to hire a witness -- or an expert witness or something of that nature. So what I'm saying to you is that this whole matter will be continued to another day, where you'll be allowed, once again, like the public did today, to have public comment, to speak your mind on the issue, and you could present the video. Ms. Braun: Okay, but please know that part of the applicant's strategy is to defeat the neighbors by attrition. There were seven PZAB (Planning, Zoning and Appeals Board) hearings until we prevailed, 7-3. You saw how many people we rallied here today; some -- Chair Hardemon: So do you want -- Ms. Braun: -- more in the audience. Chair Hardemon: -- so let me ask you a question. So you want to show the video today? Ms. Braun: Yes, please. Chair Hardemon: That's all you ask to do? Ms. Braun: Well -- Chair Hardemon: That's what you're asking to do, yes? Ms. Braun: Yes. Chair Hardemon: Okay. Later... City of Miami Page 153 Printed on 1/512017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Commission Meeting Minutes October 27, 2016 Chair Hardemon: I would ask my board members to -- well, the -- how much time is it between now and the next Commission meeting -- well, the next "P" -- no, the next PZ (Planning and Zoning)? No, no, no. Ms. Mendez: November -- Chair Hardemon: Next PZ agenda. Commissioner Suarez: No, because the next meeting (UNINTELLIGIBLE). Ms. Mendez: -- the next two meetings are combined. Commissioner Suarez: Right. Ms. Mendez: So it would be November 17 or December -- Mr. Hannon: 8. Ms. Mendez: -- 8. Chair Hardemon: So I would entertain a motion -- to the next one? I'll entertain a motion to continue to the next Commission meeting items PZ. 10 and PZ.II. Commissioner Carollo: Move it. Chair Hardemon: It's been properly moved and seconded. Any further discussion on that item? Seeing none, all in fuvor, say "aye. It The Commission (Collectively): Aye. Chair Hardemon: Motion passes. PZ.11 ORDINANCE First Reading 1033 AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH Department of ATTACHMENT(S), AMENDING THE ZONING ATLAS OF ORDINANCE Planning and NO. 13114, AS AMENDED, BY CHANGING THE ZONING Zoning CLASSIFICATION OF THE PROPERTIES LOCATED AT APPROXIMATELY 29 NORTHWEST 42ND STREET, 30 NORTHWEST 44TH STREET AND 4202-4330 NORTH MIAMI AVENUE, MIAMI, FLORIDA FROM T3 -L, "SUB -URBAN TRANSECT ZONE -LIMITED", AND, T4 -L, "GENERAL URBAN TRANSECT ZONE -LIMITED", TO CI, "CIVIC INSTITUTION"; MAKING FINDINGS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. MOTION TO: Continue RESULT: CONTINUED MOVER: Frank Carollo, Commissioner SECONDER: Francis Suarez, Commissioner AYES: Hardemon, Russell, Gort, Carollo, Suarez Note for the Record. Item PZ.11 was continued to the November 17, 2016 Planning and Zoning Corrunission Meeting. City of Miami Page 154 Printed on 11512017 Pichette v. City of North Miami, 642 So.2d 1165 (1994) 19 Fla. L. Weekly D2056 642 So.2d 1165 District Court of Appeal of Florida, Third District. Pierre PICHETTE, Alan Yarkin, and Gaytan Mayrand Torres, Appellants, V. CITY OF NORTH MIAMI and Performing Arts Management of North Miami, Inc., Appellees. No. 94-102. 1 Sept. 28, 1994• In challenge to zoning ordinance, final summary judgment for defendants was granted by the Circuit Court, Dade County, Harold Solomon, J., and plaintiffs appealed. The District Court of Appeal held that plaintiffs, none of whose land was within 2,800 feet of rezoned tract, lacked standing. Affirmed. West Headnotes (1) III Zoning and Planning Q— Modification or amendment 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 414kl587 Modification or amendment (Formerly 414k571) Plaintiffs had no legally recognized interest which would be adversely affected by challenged zoning ordinance and thus lacked standing to challenge the ordinance where one lived in another city more than a mile across a bay from the rezoned site and the others were separated by 57—acre buffer area from rezoned tract, at distances of 3,000 and 2,800 feet, and there was no genuine issue raised by the record that any plaintiffs would be affected by noise, Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk traffic impact, land value diminution or in any other respect by the subject zoning ordinance. 3 Cases that cite this headnote Attorneys and Law Firms *1165 John G. Fletcher, South Miami, for appellants. Davis, Scott, Weber & Edwards and Laura Besvinick, New York City; David M. Wolpin, North Miami, for appellees. Before HUBBART and BASKIN and GREEN, JJ. Opinion PER CURIAM. The final summary judgment under review is affirmed upon a holding that the appellants herein have no legally recognized interest which will be adversely affected by the zoning ordinance of the City of North Miami which appellants challenged below, and therefore they lacked any standing to bring the declaratory judgment action because (1) the appellant Allan Yarkin lives in the City of Bay Harbor Islands, more than a mile across Biscayne Bay from the rezoned site under *1166 attack, and there is no genuine issue raised by this record that he would be affected by noise, traffic impact, land value diminution, or in any other respect by the subject zoning ordinance; and (2) the appellants Pierre Pichette and Gaytan Torres live in the City of North Miami Beach, separated by a 57—acre buffer area from the rezoned tract of land, 3,000 and 2,800 feet, respectively, away from said tract, and there is no genuine issue raised by this record that they would be affected by noise, traffic impact, land value diminution, or in any other respect by the subject zoning ordinance, Renard v. Dade County, 261 So.2d 832 (F1a.1972); see § 163.3215(2), Fla.Stat. (1993); Citi_ens Growth Management Coalition of West Pabn Beach, Inc. v. City of West Pahn Beach, Inc., 450 So.2d 204, 208 (F1a.1984); compare Southwest Ranches Homeowner's Ass'n v. Broward County, 502 So.2d 931 (Fla. 4th DCA) (adjoining landowners with potential pollution, flood problems had standing), rev. denied, 511 So.2d 999 WESTLAW 2016 Thomson Routers 1v10 clFum to onginLl U S. Gove,i -,mcnt VVo) ks Pichette v. City of North Miami, 642 So.2d 1165 (1994) 19 Fla. L. Weekly b2066 (F1a.1987). This being so, it was entirely proper for the trial court to enter the summary judgment under review on the basis that there was no genuine issue of material fact and the defendants were entitled to judgment as a matter of law, given the appellants' lack of standing to challenge the subject zoning ordinance. See Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514, 517 (Fla. 2d DCA 1967), cert. denied, 210 So.2d 870 (F1a.1968). End of Document Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Affirmed. All Citations 642 So.2d 1165, 19 Fla. L. Weekly D2056 © 2016 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW n 2016 Thomson Reuters. No claim to original U.S. Government Works Hartnett v. Austin, 93 So.2d 86 (1956) KeyCite Yellow Flag - Negative Treatment Distinguished by J C Vereen & Sons, Inc. v. City of Miami, Fla.App. 3 Dist., April 21, 1981 93 So.2d 86 Supreme Court of Florida, en Banc. Fred HARTNETT, as Mayor and Commissioner of the City of Coral Gables, Florida, W. Keith Phillips, Lucille Neher, Robert L. Searle and John M. Montgomery, Members of the City Commission in and for the City of Coral Gables, Florida, Appellants, V. W. P. AUSTIN and Wilmeth F. Austin, his wife, Appellees. Dec. 5, 1956• Action attacking validity of zoning ordinance. The Circuit Court for Dade County, Grady L. Crawford, J., determined that the ordinance was invalid. Defendants appealed. The Supreme Court, Thornal, J., held that where effectiveness of provisions of municipal zoning ordinance was conditioned upon necessity for subsequent execution of contract by municipality with private parties, such ordinance was invalid, because of absence of required degree of clarity and certainty. Affirmed. Roberts, J., dissented. West Headnotes (10) ISI Constitutional Law 4—Ordinances in general 92Constitutional Law 92VIIIVagueness in General 92k1130.60rdinances in general (Formerly 268k111(1)) A municipal ordinance should be clear, definite, and certain in its terms. Submitted into the public Record for item(s) On 05-25-2017 �P-Ordinances in general 92Constitutional Law 92VIIIVagueness in General 92kl 130.60rdinances in general (Formerly 268k111(1)) PZ.15 An ordinance which is so vague that its precise meaning cannot be ascertained is invalid, even though it may otherwise be constitutional. Cases that cite this headnote 131 Constitutional Law 6—Zoning, planning, and land use 92Constitutional Law 92V111Vagueness in General 92k 132Particular Issues and Applications 92k I 132(2)Property 92k1 132(5)Zoning, planning, and land use (Formerly 414k1041, 414k28, 268k601(7)) Although authority to exercise power to enact zoning ordinances, when delegated by the state, is generally recognized, nevertheless, the restriction on property rights must be declared as a rule of law in the ordinance and not left to the uncertainty of proof by extrinsic evidence whether parol or written. 1 Cases that cite this headnote 141 Zoning and Planning °Contracts for amendments; conditions 414Zoning and Planning 41411INIodification or Amendment; Rezoning 414111(A)In General 414k1 153Contracts for amendments; conditions (Formerly 414k160, 268k601(15)) Cases that cite this headnote A municipality has no authority to enter into a private contract with a property owner for the amendment of a zoning ordinance subject to various covenants and restrictions in a collateral 121 Constitutional Law deed or agreement to be executed between the WESTLAW (--,2017 Thomson ReuteiS I\10 daiw to origmFl U S Government V/oiks City Clerk Hartnett v. Austin, 93 5o.2d 86 (1956) city and property owner. 10 Cases that cite this headnote lel Municipal Corporations -6—Nature and scope of power of municipality 268Municipal Corporations 268XPolice Power and Regulations 268X(A)Delegation, Extent, and Exercise of Power 268k589Nature and scope of power of municipality A municipality cannot contract away the exercise of its police powers. 3 Cases that cite this headnote 161 Zoning and Planning 6 -Changed conditions 414Zoning and Planning 41411 ]Modification or Amendment; Rezoning 414111(A)In General 414k1 148Changed conditions (Formerly 414k158, 268k601(15)) When a zoning ordinance is amended by changing the classification of particular property, such amendment must be justified by change in the use value of the property involved. 6 Cases that cite this headnote 171 Constitutional Law Zoning, planning, and land use Zoning and Planning Validity of Zoning Regulations 92 Constitutional Law 92VIIlVagueness in General 92k1132Particular Issues and Applications 92k1132(2)Property 92k] 132(5)Zoning, planning, and land use (Formerly 268k 11(1)) 414Zoning and Planning 41411Validity of Zoning Regulations Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 41411(B)Particular Matters 414kl065In general (Formerly 268k111(1)) Where effectiveness of municipal zoning ordinance was conditioned upon necessity for subsequent execution of a contract by municipality with private parties, such ordinance lacked degree of clarity and certainty required of municipal legislation and was invalid. 2 Cases that cite this headnote 181 Zoning and Planning Factors considered 414Zoning and Planning 414I1n General 414k1016Factors considered (Formerly 414k12, 268k601(5)) In exercising zoning powers a municipality must deal with well-defined classes of uses. Cases that cite this headnote 191 Municipal Corporations or -Enactment 268Municipal Corporations 2681VProceedings of Council or Other Governing Body 2681V(B)Ordinances and By -Laws in General 268k106Enactment 268k106(1)In general Adoption of an ordinance is the exercise of municipal legislative power, and in the exercise of such a function city cannot legislate by contract. 3 Cases that cite this headnote 1101 Municipal Corporations 4 Civil liability WESTLAW 20-17 Thomson Reuters No clam to original U S Government vAlorks Hartnett v. Austin, 93 So.2d 86 (1956) Zoning and Planning 4 --Private persons 268Municipal Corporations 268XPolice Power and Regulations 268X(B)Violation and Enforcement of Regulations 268k645Civil liability 414Zoning and Planning 414X1 Enforcement of Regulations 414k1780Persons Entitled to Sue 414k I 782Private persons (Formerly 4141<764) Plaintiffs, who occupied homes immediately across street from proposed parking lot authorized by change in zoning ordinance approving such commercial development, and who relied on existing zoning conditions when they bought their homes, had a right to continuation of those conditions and could maintain suit to enforce them. 7 Cases that cite this headnote Attorneys and Law Firms *87 Edward L. Semple, Miami, for appellants. Gustafson, Persandi & Vernis, Coral Gables, and Anderson & Nadeau, Miami, for appellees. M. L. Mershon and W. O. Mehrtens and Evans, Mershon, Sawyer, Johnston & Simmons, Miami, amici curiae. Opinion THORNAL, Justice. Appellants, Hartnett and others, who were defendants below, seek reversal of a final decree holding a zoning ordinance of the City of Coral Gables to be invalid. Several points are assigned for reversal. The determining question, however, is the validity of a zoning ordinance which is made contingent upon the subsequent execution of a contract between the city and private parties. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Commission to change the zoning classification of the property from single-family residential use to commercial use. The change was necessary in order to enable Burdines to construct a large shopping center with an *88 adjoining parking lot. The City Commission, after hearing, adopted Ordinance No. 897 undertaking to amend its original zoning ordinance which was numbered 271. Ordinance 897, which is here under attack, provided that the requested change should be made. However, the ordinance expressly provided that `all of the re -zoning is subject to and dependent upon the full and complete observance of the limitations, restrictions and other requirements imposed as hereinafter set forth'. Following this provision a number of contingencies were prescribed as conditions to the effectiveness of the amendatory ordinance. In summary these conditions were: (1) a `Bay Point type wall' shall be placed around the perimeter of the property not less than 40 feet inside the property line abutting certain streets; (2) the 40 -foot strip shall at all times be kept and maintained in a condition prescribed by the City Commission at the expense of the property owner; (3) suitable contracts shall be entered into between the city and the property owner covering the above requirements and also providing for control of lights on the premises in order to bring about `as little glare and disturbance' as possible to the people in the neighborhood (this expense was to be borne by the property owner); (4) the property owner should furnish and pay for adequate police protection within the rezoned area; (5) to submit to the City Commission for approve] plans and specifications of any proposed building; and (6) the property owner shall not open access to certain abutting streets. The appellees, Austin, who owned and occupied a home across the street from the area proposed to be re -zoned, filed a complaint seeking an injunction against the enforcement of the ordinance. The Chancellor agreed that the ordinance was invalid and permanently enjoined its enforcement. Reversal of this decree is now sought. Appellants contend that the ordinance was a valid exercise of the zoning powers of the city; that in the absence of a clear showing as to invalidity, the ordinance should be upheld; that at most, need for the change in the zoning is `fairly debatable' and that therefore the decision of the City Commission should not be disturbed. Burdines, Inc., alleging itself to be the holder of an option Appellees contend that the ordinance is clearly invalid; to purchase the property in question, requested the City that they purchased their property in reliance upon the WESTLAW _-11 -1 Thomson. Foul-- !��o cls u,, � orio!rsl U S Govcrn:rne,�t y.Yo!ks Hartnett v. Austin, 93 So.2d 86 (1956) then -existing zoning ordinance; that they have a right to a continuance of the then -existing regulations in the absence of a showing of a change in the area that justifies the amendment; that there has been no such showing, and that further, the ordinance by its very terms is made contingent upon the subsequent execution of a contract with private parties and this results in a degree of indefiniteness and uncertainty that destroys the ordinance as a valid municipal enactment. By very able briefs, the parties have raised for our consideration numerous questions. The point which we consider fatal to the ordinance disposes of the necessity to discuss all of the incidental questions. 111 121 It is a rule long recognized by the precedents that a municipal ordinance should be clear, definite and certain in its terms. An ordinance which is so vague that its precise meaning cannot be ascertained is invalid, even though it may otherwise be constitutional. The reason for the rule is the necessity for notice to those affected by the operation and effect of the ordinance. The provisions of a municipal ordinance which conditions its effectiveness upon the necessity for the subsequent execution of a contract with private parties such as was done in the case at bar cannot be held to provide the degree of clarity and certainty that is required of municipal legislation. See McQuillan on Municipal Corporations, 3d Ed., Vol. 5, Sec. 15.24. The above announced rule is particularly applicable to the exercise of the zoning power which is an aspect of the police power. *89 131 The above announced rule is particularly applicable to the exercise of the zoning power which is an aspect of the police power. While the authority to exercise this power, when delegated by the State, is generally recognized, nevertheless, the restriction on property rights must be declared as a rule of law in the ordinance and not left to the uncertainty of proof by extrinsic evidence whether parol or written. Johnson v. City of Huntsville, 1947, 249 Ala. 36, 29 So.2d 342. SII 111 161 A municipality has no authority to enter into a private contract with a property owner for the amendment of a zoning ordinance subject to various covenants and restrictions in a collateral deed or agreement to be executed between the city and the property owner. Such collateral agreements have been held void in all of the cases to which we have been referred. Snow v. Van Dam, 291 Mass. 477, 197 N.E. 224; V. F. Zahodiakin Eng. Corp. v. Zoning Board of Adjust., 8 N.J. 386, 86 A.2d Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 127; Houston Petroleum Co. v. Automotive Prod. C. Ass'n, 9 N.J. 122, 87 A.2d 319; Rathkopf on The Law of Zoning and Planning, 3d Ed., Vol. 2, p. 392. Any contrary rule would condone a violation of the long established principlc that a municipality cannot contract away the exercise of its police powers. When a zoning ordinance is amended by changing the classification of particular property, such amendment must be justified by a change in the use value of the property involved. I'l We are not here receding in any fashion from our established rule that if the need for a change in a zoning ordinance is `fairly debatable' the decision of the governing authority will be given the benefit of the doubt. Here the ordinance expressly recognized that the change was justifiable only: (1) if the Bay Point Wall was built; (2) if there was a 40 -foot set -back; (3) if the set -back area was landscaped and maintained; (4) if surrounding property owners were protected against glare and disturbance; and (5) if the property owner paid for police protection. All of these `ifs' were to be included in a proposed collateral private contract to be executed in the future. If the City Commission, after appropriate hearing, had determined that the highest and best use value of the land had changed from residential to commercial, then the `fairly dcbatablc' rule might havc a sphere of applicability. This was not done. I"I In cxcrcising its zoning powcrs the municipality must deal with well-defined classes of uses. If each parcel of property were zoned on the basis of variables that could enter into private contracts then the whole scheme and objective of community planning and zoning would collapse. The residential owner would never know when he was protected against commercial encroachment. The commercial establishments on `Main Street' would never know when they had protection against inroads by smoke and noise producing industries. This is so because all genuine standards would have been eliminated from the zoning ordinance. The zoning classifications of each parcel would then be bottomed on individual agreements and private arrangements that would totally destroy uniformity. Both the benefits of and reasons for a well -ordered comprehensive zoning scheme would be eliminated. 191 The adoption of an ordinance is the exercise of municipal legislative power. In the exercise of this governmental function a city cannot legislate by contract. If it could, then each citizen would be governed by an individual rule based upon the best deal that he could make with the governing body. Such is certainly not WESTLAW ,_ 2_10 i7-homs-)n P,euners Ido c1311,11 to cnc;r=E! U S Government VA'or,s Hartnett v. Austin, 93 So.2d 86 (1956) consonant with our notion of government by rule of law that affects alike all similarly conditioned. This opinion is not to be construed as being adversely critical of the policy adopted by appellants in this instance. Conceivably, if effectuated, the plan might redound *90 to the economic benefit of the community. We have dealt here solely with a question of municipal power, not policy. When the nub of the problem is isolated and subjected to the criterion of municipal power to act in the manner here revealed, we are compelled to reach the conclusion which we here announce. We find no authorities to the contrary. 1101 We encounter no difficulty in concluding that the appellees were entitled to bring the suit. They occupied their homes immediately across the street from the proposed parking area. They relied on the existing zoning conditions when they bought their homes. They had a right to a continuation of those conditions in the absence of a showing that the change requisite to an amendment had taken place. They allege that the contemplated change would damage them and that it was contrary to the general welfare and totally unjustified by existing conditions., This gave them a status as parties entitled to come into court to seek relief. True their rights were subject to the power of the city to amend the ordinance on the basis of a proper showing. Nonetheless, they have a right to insist that the showing be made. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk change in the zoning ordinance by amendment. In this regard they were mere optionees of the property. Not being owners thereof, they would hardly have any standing before a Board of Adjustment on the basis of an alleged hardship. What we have here held might not be applicable to a proper application for a variance by an owner based on hardship. This is a point which we are not called upon to decide. For limitations on the authority to `amend' under the guise of a `variance' see Yolkey on Zoning Law and Practice, 2d Ed., Sec. 140, and many cases there cited. As pointed out above, our solution to the vital question discussed disposes of the controversy. We deem it unnecessary to prolong our discussion by delving into the other points raised. The Chancellor ruled correctly in holding the ordinance invalid and his decree is Affirmed. DREW, C. J., TERRELL and O'CONNELL, JJ., and WALKER, Associate Justice, concur. ROBERTS, J., dissents. All Citations We point out in passing that the applicant Burdines was 93 So.2d 86 not appealing to a Board of Adjustment for a variance on the basis of any hardship. They were seeking an outright End of Document © 2017 Thomson Reuters No claim to original U S Government Works WESTLAW 201 Thomson I-,cuteis I�o claim to on ;ural U S Goverrment V�/orks P.C.B. Partnership v. City of Largo, 549 So.2d 738 (1989) 14 Fla. L. Weekly 2295 KeyCite Yellow Flag - Negative Treatment Distinguished by Frankenmuth Mut Ins Co. v Escambia County, Fla , 11 th Cir.(Fla.), April 24, 2002 549 S0.2d 738 District Court of Appeal of Florida, Second District. P.C.B. PARTNERSHIP, a Florida General Partnership, formerly known as Largo Bunch, Inc., a Florida corporation, Appellant, V. The CITY OF LARGO, Florida, a municipal corporation and Earnest Bach, Scott Henniger, James Miles and George McGough, Appellees. No. 88-03447• Sept. 27, 1989• Developer brought suit against city for specific performance of development agreement, breach of contract, and temporary injunction prohibiting city from reallocating funds originally allocated toward construction of a road. Complaint also sought damages against city commissioners, for tortious interference with contract and deprivation of civil rights pursuant to § 1983. The Circuit Court, Pinellas County, John S. Andrews, J., dismissed the complaint with prejudice, and plaintiff appealed. The District Court of Appeal, Ryder, J., held that: (1) city commissioners were entitled to absolute immunity, since there were no allegations that commissioners acted in any manner other than legislatively; (2) contract between city and plaintiff was ultra vires and therefore unenforceable; and (3) court abused its discretion in dismissing complaint without leave to amend, in view of possibility that plaintiff could state a cause of action for return of money it allegedly paid to city. Affirmed in part, reversed in part, and remanded. West Headnotes (9) u] Civil Rights 4 -Municipalities and counties and their officers 78Civil Rights 781IIFederal Remedies in General 78k] 372Privilege or Immunity; Good Faith and Probable Cause 78k1376Govemment Agencies and Officers Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 78k1376(4)Municipalities and counties and their officers (Formerly 78k207(1), 78k13.8(3)) City council members enjoy absolute immunity in civil rights actions when acting in a legislative capacity. Cases that cite this headnote 121 Municipal Corporations Duties and liabilities Public Employment 0 -Legislative immunity 268Municipal Corporations 268VOfficers, Agents, and Employees 268V(A)Municipal Officers in General 268k] 70Duties and liabilities 316PPublic Employment 3 ] 6PXILiabilities 316PXI(A)In General 316Pk896Privilege or Immunity; Good Faith 3100031-egislative immunity City council members are immune from personal liability for acts or omissions within scope of their legislative function, unless they acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of rights, safety or property. West's F.S.A. § 768.28(9)(a). 3 Cases that cite this headnote 131 Municipal Corporations O -Unauthorized or Illegal Contracts Public Contracts Unauthorized or Illegal Contracts 268Municipal Corporations 268V11Contracts in General 268k246Unauthorized or Illegal Contracts 268k247In general 316HPublic Contracts 3161-1111Formation of Contract 316Hk] 94Unauthorized or Illegal Contracts WESTLAW 2011 Thomson Reuters No claim to onginal U S Government Works P.C.B. Partnership v. City of Largo, 549 So.2d 738 (1989) 14 Fla. L. Weekly 2295 316Hk1951n general Contract between developer and city purporting to restrict city's ability to decide whether to build a road, install a traffic device and permit development of a parking lot and a storm drain connection was ultra vires and unenforceable; city did not have authority to effectively contract away exercise of its police powers. 9 Cases that cite this headnote 141 Pleading Amendment of Declaration, Complaint, Petition, or Statement 302Pleading 302V1Amended and Supplemental Pleadings and Repleader 302k242Amendment of Declaration, Complaint, Petition, or Statement 302k242.IIn general (Formerly 302k242) Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Cases that cite this headnote 151 Pleading 4—Sufficiency of amendment 302PIeading 302VIAmended and Supplemental Pleadings and Repleader 302k242Amendment of Declaration, Complaint, Petition, or Statement 302k251 Sufficiency of amendment Court erred in failing to allow developer to further amend its complaint to seek return of money allegedly paid to city pursuant to development agreement, where it was unclear whether developer could state a cause of action for return of the money. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 2 Cases that cite this headnote 161 Municipal Corporations Implied contracts Public Contracts Implied Contracts 268Municipal Corporations 268VIIContracts in General 268k2491mplied contracts 3161IPublic Contracts 316HIllFormation of Contract 316Hk1911mplied Contracts 3161]kl921n general Where a party has entered into a contract with a municipality that unlawfully limits municipality's exercise of its police power and is therefore beyond municipality's power to contract, party cannot then recover money paid to the municipality under theory of implied contract or quantum meruit. 2 Cases that cite this headnote 171 Estoppel Contracts 156Estoppel 156111Equitable Estoppel 156111(A)Nature and Fssentials in General 156k62Estoppel Against Public, Government, or Public Officers 156k62.6Contracts Party entering into a contract with a municipality is bound to know extent of the municipality's power to contract, and the municipality will not be estopped to assert invalidity of a contract which it had no power to execute. 2 Cases that cite this headnote 181 Contracts WESTLAW P.C.B. Partnership v. City of Largo, 549 So.2d 738 (1989) 14 Fla. L. Weekly 2295 it -Effect of Illegality 95Contracts 951Requisites and Validity 951(F)Legality of Object and of Consideration 95k135Effect of Illegality 95k1361n general Party generally may not seek to enforce an illegal contract. 1 Cases that cite this headnote 191 Contracts ._I Parties not in pari delicto 95Contracts 951Requisites and Validity 95I(F)Legality of Object and of Consideration 95k] 35Effect of Illegality 95k] 39Parties not in pari delicto Where parties to an illegal contract are in pari delicto, the law will leave them where it finds them, and relief will be refused in the courts because of public interest. 1 Cases that cite this headnote Attorneys and Law Firms *739 Marcus A. Castillo and James A. Helinger, Jr., P.A., Clearwater, for appellant. John G. Hubbard of Frazer, Hubbard & Brandt, Dunedin, for appellees. Opinion RYDER, Judge. Appellant challenges the lower court's dismissal of its amended complaint with prejudice. We affirm the dismissal of the amended complaint, but find that appellant should have been allowed to file a second amended complaint. Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk It appears from the allegations in appellant's amended complaint that, on June 19, 1984, the City of Largo entered into a "land disposition agreement" with appellant's predecessor, Largo Bunch, Inc. (hereinafter Largo Bunch), the stated purpose of which was to make land available for development by private enterprise in Largo's downtown business district. In the agreement, *740 the City agreed to convey to Largo Bunch a parcel of land located in the downtown business district, to construct a "curvilinear" connecting road to improve access to the property, and to allow Largo Bunch to develop a parking lot on the parcel and connect to the City's nearby stormwater drain. In return, Largo Bunch agreed to convey a parcel of land to the City, to develop the downtown parcel received from the City in accordance with Largo's downtown development plan and to pay to the City the sum of $200,000.00. Fifty thousand dollars of that amount was to be paid into an escrow account at the time of receiving the first building permit, another $50,000.00 was to be paid into the escrow account at the time of receiving the first certificate of occupancy and $100,000.00 was to be paid by cashier's check at closing. In an addendum to the agreement, Largo Bunch agreed to relieve the City of its obligation to construct the curvilinear road if the City were to install a traffic light at a strategic location specified in the agreement. In July 1984, after it had approved and adopted the agreement, the City conveyed to Largo Bunch the downtown parcel as contemplated in the agreement. At an unspecified point in time, Largo Bunch made the two $50,000.00 payments into escrow and filed site plans containing improvements designed to access the curvilinear road. In November 1985, however, the City voted to delete the curvilinear road from its downtown development plan, and in June 1987, it formally disapproved construction of the road. At some time prior to the City's disapproval of the construction of the curvilinear road, the City installed a traffic light at the intersection specified in the addendum to the agreement. The installation of the light presumably would relieve the City of its obligation to construct the curvilinear road. However, appellant alleges that the light is "nonfunctional." It is unclear from the limited record before us whether Largo Bunch ever paid the $100,000.00 it was required to pay at closing, whether it conveyed its parcel to the City and, indeed, whether the closing took place at all. After the City's disapproval of the curvilinear road construction, appellant Fled. a complaint, and then the WESTLAW -) 201-1 Thomson Reuters iso claim io onamsi U S Government h�brks P.C.B. Partnership v. City of Largo, 549 So.2d 738 (1989) 14 Fla. L. Weekly 2295 amended complaint that is the subject of this appeal. The amended complaint alleges causes of action against the City for specific performance of the agreement, breach of contract, and temporary injunction prohibiting the City from reallocating funds originally allocated toward the construction of the curvilinear road. The amended complaint also seeks damages against the individual appellees, who are Largo city commissioners, for tortious interference with contract and deprivation of civil rights pursuant to 42 U.S.C. § 1983. Appellees moved to dismiss the amended complaint, and appellant filed a motion for leave to amend to seek return of the money consideration it has already paid to the City in the event the agreement is found to be unenforceable. On September 30, 1988, the trial court dismissed the amended complaint with prejudice, and on November 14, 1988, the court denied appellant's motions for clarification and rehearing. This appeal timely ensued. The parties agree that the determinative issues concerning the dismissal of the amended complaint are, with regard to the City's liability, whether the agreement is ultra vires and thus unenforceable, and with regard to the liability of the city commissioners, whether they are protected by legislative immunity. 111 121 We can easily dispose of the issues regarding the liability of the individual appellees. City council members enjoy absolute immunity in civil rights actions when acting in a legislative capacity. Healy v. Town of Pembroke Park, 831 F.2d 989 (1Ith Cir.1987). See also Penthouse, Inc. v. Saba, 399 So.2d 456 (Fla. 2d DCA), revieiv denied, 408 So.2d 1095 (F1a.1981). In addition, they are immune from personal liability for acts or omissions within the scope of their legislative function, unless they acted "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla.Stat. (1987). The trial court correctly dismissed the counts in appellant's amended complaint *741 directed toward the city commissioners, since there are no allegations that the commissioners acted in any manner other than legislatively. In addition, while there are allegations in the amended complaint that the commissioners acted maliciously, wantonly and willfully, these allegations are conclusory, and from the amended complaint it appears that appellant could not amend to state a cause of action for which the commissioners could be held personally liable. 131 With regard to the City's contractual liability, we agree with the position taken by the City that the subject WESTLAW -,G i , T!ir;,.---n Relater^ Iv!o d, -in- to Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk contract is ultra vires and therefore unenforceable. The agreement purports to restrict the City's ability to decide whether to build a road, install a traffic device and permit the development of a parking lot and a storm drain connection. The City does not have the authority to enter into such a contract, which effectively contracts away the exercise of its police powers. Hartnett v. Austin, 93 So.2d 86 (F1a.1956); City of Belleview v. Belleview Fire Fighters, Inc., 367 So.2d 1086 (Fla. 1 st DCA 1979); City of Safety Harbor 17. City of Clearivaler, 330 So.2d 840 (Fla. 2d DCA 1976). While we have not found a reported case in Florida regarding an ultra vires contract similar to the one in this case, a North Carolina case is directly on point. In Rockingham Square Shopping Center, Inc. v Town of Madison, 45 N.C.App. 249, 262 S.E.2d 705 (1980), the Town of Madison agreed that it would open and construct an access road at its own expense as an inducement for the plaintiff to construct a shopping center development in the town. After the town decided not to open the road, due to difficulties in negotiating necessary rights-of-way, the plaintiff sued the town for breach of contract. The North Carolina Court of Appeals held that the contract, which purported to restrict the discretion of the governing body of the municipality to determine whether the street should be opened for the public benefit, was ultra vires and of no legal effect. Following the reasoning in Rockingham Square Shopping Center, Inc., and applying the principles enumerated in Florida case law, we affirm the trial court's dismissal of the three counts in appellant's amended complaint arising out of the ultra vires agreement. I4] I5] Having determined that the lower court properly dismissed appellant's amended complaint, we now turn to the issue of whether the court erred in failing to allow appellant to further amend its complaint to seek the return of the money it paid to the City pursuant to the agreement. Florida Rule of Civil Procedure 1.190(a) states that "[l]eave of court [to amend] shall be given freely when justice so requires." Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425 (Fla. 2d DCA 1978). In this case, it is unclear whether appellant can state a cause of action for return of the money, especially since it has not yet attempted to do so. Therefore, we hold that the trial court abused its discretion and that, on remand, appellant should be allowed to state a claim for the money, if it can. 161 171 181 191 We wish to note, however, that appellant is not entitled to a refund of the money under a theory of �;,rir�in�;l IJ � Goerrnmr=ntl;trrnk�. P.C.B. Partnership v. City of Largo, 549 So.2d 738 (1989) 14 Fla. L. Weekly 2295 implied contract or quantum meruit. As a general rule, "where a contract is within the scope of the municipal powers but is void and unenforceable as an express contract because of irregularities in execution or performance, recovery may still be had for the value of benefits received by the municipality on a theory of implied contract." Rockingham Square Shopping Center, Inc., 262 S.E.2d at 708. See Webb v. Hillsborough County, 128 Fla. 471, 175 So. 874 (1935); Edivards v. City of Goldsboro, 141 N.C. 60, 53 S.E. 652 (1906); 56 Am.Jur.2d Municipal Corporations, Etc. §§ 519-525 (1971). "However, a distinction has been drawn between cases in which the express contract involves an irregular exercise of a corporate power to contract, and those in which the express contract is ultra vires because the power of the municipality to contract is absent. In the latter cases, the municipality may not be bound, even in implied contract, *742 for the value of benefits received." Rockingham Square Shopping Center, Inc., 262 S.E.2d at 708-709. See Webb; Edijwrds; 56 Am.Jur.2d § 523. The distinction was expressed, in Webb, as follows: Municipal Corporations are liable to an action of implied assumpsit with respect to money or property received by them and applied beneficially to their authorized objects through contracts which are simply unauthorized, as distinguished from contracts which are prohibited by their characters, or some other law bearing upon them or are malum in se, or violative of public policy. Id. 175 So. at 877-878. Thus, where, as in this case, it is determined that a party has entered into a contract with a municipality that unlawfully limits the municipality's exercise of its police power and is therefore beyond the municipality's power to contract, the party cannot then recover money paid to the municipality under a theory of implied contract or quantum meruit. A party entering into a contract with a municipality is bound to know the extent of the municipality's power to contract, and the municipality will not be estopped to assert the invalidity of a contract which it had no power to execute. 56 Am.Jur.2d § 529. In addition, a party generally may not seek to enforce an illegal contract. Local No. 234 of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Henley & Beclovith, Inc., 66 So.2d 818, 821 (F1a.1953). Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Where the parties to such a contract are in pari delicto, the law will leave them where it finds them, and relief will be refused in the courts because of the public interest. Id. See also Rockingham Square Shopping Center, Inc.; Webb; Edwards. Although we have eliminated the potential causes of action appellant would most likely attempt to plead on remand for return of the money paid to the City, the record is insufficient to permit us to conclude that there are no alternative causes of action available to appellant, notwithstanding the illegality of the contract. In addition, it is possible that it will ultimately be determined that the money Largo Bunch paid to the City, along with the property it was to transfer to the City, was intended as consideration for the downtown property the City conveyed to Largo Bunch. In our view, the portions of the agreement concerning the exchange of property are severable from the ultra vires provisions of the agreement. See Local No. 234; New Products Corp. v. City of North Miami, 241 So.2d 451 (Fla. 3d DCA 1970), cert. denied, 244 So.2d 434 (Fla.1971). Although it is unclear, at this stage of the proceedings, to which portion of the agreement the money is allocable, if it is allocable to the property exchange portion of the agreement it is possible that appellant might be able to allege that there has been some mistake or fraud which would entitle it to rescission or other equitable relief. In summary, we hold that the trial court correctly dismissed appellant's amended complaint, but abused its discretion in denying appellant the opportunity to amend to attempt to state a cause of action for return of the money it has paid to the City. On remand, appellant shall be given leave to amend for the purpose of seeking return of the money, if it is able to do so within the limitations set forth herein. Affirmed in part, reversed in part, and remanded. SCHEB, A.C.J., and ALTENBERND, J., concur. All Citations 549 So.2d 738, 14 Fla. L. Weekly 2295 WESTLAW , 20 i 7 Thomson Reuiers I\10 claim to onainal U 5 Government V�Iorks P.C.B. Partnership v. City of Largo, 549 So.2d 738 (1989) 14 Fla L Weekly 2295 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 2017 Thomson Reuters. No claim to original U.S Government VVorks. VVESiiLAW _°.-0"i r f iiorison Retitus No dairn to cjriginaa 1) S Cnvernnztc-nl Worv.s Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Morgran Co., Inc. v. Orange County, 818 So.2d 640 (2002) 27 Fla. L. Weekly D1347 818 So.2d 640 163.3220-163.3243. District Court of Appeal of Florida, Fifth District. 2 Cases that cite this headnote MORGRAN COMPANY, INC., Appellant, V. ORANGE COUNTY, Appellee. 121 Pretrial Procedure No. 5Do1-2621. Amendment or pleading over June 7, 2002. 307APretrial Procedure 307AIIIDismissal 307AIII(B)Involuntary Dismissal Real estate developer brought breach of contract and 307A1t1(B)6Proceedings and Effect promissory estoppel claim against county arising out of 307Ak695Amendment or pleading over developer's attempt to develop 437 acres locate in county into primary residential, mixed-use land development. Real estate developer that brought promissory The Circuit Court, Orange County, Ted P. Coleman, J., estoppel claim against county arising out dismissed complaint. Developer appealed. The District developers agreement to develop acres Court of Appeal, Griffin, J., held that: (1) developer was locate county into primary residential, not entitled to recover on breach of contract claim, and (2) mixed-use land development was entitled to developer was entitled to amend to attempt to seek some amend to attempt to seek some other remedy or other remedy or plead some other cause of action after plead some other cause of action after dismissal dismissal. of initial complaint. West's F.S.A. §§ 163.3220-163.3243. Affirmed in part; reversed in part; and remanded. Cases that cite this headnote West Headnotes (5) ISI Zoning and Planning fir—Contracts for amendments; conditions 131 Estoppel 4 --Estoppel Against Public, Government, or 414Zoning and Planning Public Officers 414111 Modification or Amendment; Rezoning 414111(A)In General 414k1153Contracts for amendments; conditions 156Estoppel (Formerly ]04k]29, 414k160) 156111Equitable Estoppel 156111(A)Nature and Essentials in General Real estate developer was not entitled to recover 156k62Estoppel Against Public, Government, or on breach of contract claim brought against Public Officers156k62.1 In general county arising out of developer's attempt to develop 437 acres located in county into primary Estoppel cannot be applied against a residential, mixed-use land development, where governmental entity to accomplish an illegal contract was "contract zoning"; as part of result. development agreement county had obligation to "support" developer's request for rezoning, and thus, if board of county commissioners had Cases that cite this headnote contracted to support developer's request for rezoning, it had invalidly contracted away its discretionary legislative power as final decisionmaking authority. West's F.S.A. §§ 141 Estoppel Future events; promissory estoppel WESTLAW �, 20'1; Thonnson Reuters No clan -in 10 oricmal lJ S Government VIoiN;s Morgran Co., Inc. v. Orange County, 818 So.2d 640 (2002) 27 Fla. L. Weekly D1347 156Estoppel 1561IIEquitable Estoppel 156111(B)Grounds of Estoppel 15 6k82 Representations 156k85Future events; promissory estoppel A party cannot reasonably rely upon a promise, the enforcement of which would be contrary to established public policy. Cases that cite this headnote 151 Pleading Leave of Court to Amend Pleading Form and sufficiency of amended pleading in general 302Pleading 302VIAmended and Supplemental Pleadings and Repleader 302k233Leave of Court to Amend 302k233.1In general 302Pleading 302VIAmended and Supplemental Pleadings and Repleader 302k241 Form and sufficieney of amended pleading in general Leave to amend should be granted unless allowing amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Cases that cite this headnote Attorneys and Law Firms *641 Deborah L. Martohue and George L. Hayes, 111, of Hayes & Martohue, P.A., St. Petersburg, for Appellant. Gary M. Glassman, Vivien J. Monaco and Marc Peltzman, Assistant County Attorneys, Orlando, for Appellee. Opinion Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk GRIFFIN, J. Morgran Company, Inc. ["Morgran"] sued Orange County for breach of contract and promissory estoppel and appeals the dismissal of its complaint. Although we affirm, we write because Morgran contends the decision represents a misapplication of the law of contract zoning. This case may also serve as a cautionary tale for anyone who enters into a contract with Orange County. Morgran is a developer of real estate. Its complaint against Orange County related to its attempt to develop 437 acres located in Orange County into a primarily residential, mixed-use land development. The complaint alleges that the property was originally zoned agricultural; that Morgran was required to apply for an amendment to the County's Comprehensive Policy Plan ["CPP"] in order to develop the property as desired; that the property also had to be rezoned to the Planned Development ["PD"] classification; that the amendment to the CPP was approved by Orangc County's Board of County Commissioners in November of 1998; that following the amendment to the CPP, the County entered into a "Developer's Agreement" providing that the County would adopt an amendment to the CPP, and would "support and expeditiously process" Morgran's rezoning application in exchange for Morgran's agreement to donate 50 acres to the County for use as a park once the rezoning was accomplished; that *642 Morgran submitted its application for rezoning on March 8, 2000, but the County breached its obligation to "support and expeditiously process" the request for rezoning by, instead, affirmatively advocating the denial of the application; and that their application for rezoning was ultimately denied by the County in a hearing before the Board of County Commissioners. Morgran seeks to recover damages, including the difference in the value of the property if zoned PD, delay damages, expenditures associated with the rezoning application and attorney's fees. Apparently, the cause of Orange County's decision to renege on its agreement was a subsequent edict by then County Chairman, Mel Martinez, that the county reject any development requests for rezoning in areas where the Orange County School Board considered the schools to be overcrowded. When Morgran sought to have Orange County abide by its agreement, the county disavowed the contract as a void effort to engage in contract zoning.' I'I Contract zoning is, in essence, an agreement by a governmental body with a private landowner to rezone WESTLAW 20 11 7 Thomsor ReUtcl S 1'do clai it i0 origii121 U S Gove, rlment VV'orks Morgran Co., Inc. v. Orange County, 818 So.2d 640 (2002) 27 Fla. L. Weekly D1347 property for consideration. This practice has long been disapproved in Florida in cases such as Hartnett v..4uslin, 93 So.2d 86 (F1a.1956) and Chung v. Sarasota County, 686 So.2d 1358 (Fla. 2d DCA 1996). Orange County's position is that its agreement to "support and expeditiously process" Morgran's rezoning application is unambiguously void as a matter of law, since this agreement with Morgran requires the County to contract away its police powers. In Hartnett, Burdine's Department Store wanted to buy land and build a shopping center. It asked the city to change the zoning classification of the property to commercial use. The city refused to make the change unless Burdine's: (1) built a wall; (2) maintained a 40' setback; (3) landscaped the setback; (4) protected the neighbors against glare and disturbance; and (5) paid for additional police protection. The ordinance required reference to extraneous contracts between the city and the developer. Austin, who owned property across from the proposed development, opposed the rezoning. The Supreme Court agreed that the ordinance which provided that the change would be made, if the conditions were met, was invalid, explaining: A municipality has no authority to enter into a private contract with a property owner for the amendment of a zoning ordinance subject to various covenants and restrictions in a collateral deed or agreement to be executed between the city and the property owner. Such collateral agreements have been void in all of the cases to which we have been referred. Any contrary rule would condone a violation of the long established principle that a municipality cannot contract away the exercise of its police powers. 93 So.2d at 89. The Hartnett court noted that "[i]f each parcel of property were zoned on the basis of variables that could *643 enter into private contracts then the whole scheme and objective of community planning and zoning would collapse." Id. Relying on cases such as Hartnett and Chung, Orange County reasons that if the County cannot be bound to approve the rezoning application, it likewise cannot be bound to support that application. Morgran responds that Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk there is a distinction between an obligation to support the request for rezoning and an obligation to approve the request. They urge that both parties, aware of the law of contract zoning, developed this carefully worded, highly negotiated contract language that "does not purport, either impliedly or expressly, to restrict or any way interfere with, the exercise of the Board of County Commissioner's police power as the final zoning authority in the County." This argument, we fear, draws too fine a distinction. Morgran entered into its Developer's Agreement with "Orange County, a political subdivision of the State of Florida." The governing body of Orange County is the Board of County Commissioners. The agreement was executed by Mel Martinez, "Orange County Chairman," on behalf of the Board of County Commissioners. Orange County's zoning decisions are made by the Planning and Zoning Commission and the Board of Zoning Adjustment. See §§ 501 and 502 of the Orange County Code. However, review of these initial zoning decisions are taken to the Board of County Commissioners, which considers the issue de novo and which has final authority. Development agreements are expressly permitted by the Florida Statutes. See §§ 163.3220—.3243, Fla. Stat. (1999). A development agreement has been defined as "a contract between a [local government] and a property owner/developer, which provides the developer with vested rights by freezing the existing zoning regulations applicable to a property in exchange for public benefits." Brad K. Schwartz, Development Agreements: Contracting for Vested Rights, 28 B.C. Envtl. Aff. L.Rev. 719 (Summer 2001). Florida law permits local governments to impose "conditions, terms and restrictions" as part of these agreements, where necessary for the public health, safety or welfare of its citizens. § 163.3227(1)(h), Fla. Stat. (1999). The problem in this case lies with Orange County's obligation to "support" Morgran's request for rezoning, as part of that development agreement. If the Board of County Commissioners has already contracted to "support" Morgran's request for rezoning, it has invalidly contracted away its discretionary legislative power as the final decisionmaking authority. The clause in the contract which provides that the "rezoning process is subject to all County ordinances and regulations governing rezoning," does not cure the problem. In Chung, in rejecting a similar argument, the court noted that any hearings regarding the issue of rezoning would "be a pro forma exercise since the County has already obligated itself to a decision." 686 So.2d at 1360. The court rejected Molina v. Tradeivinds Development Coip., 526 So.2d 695 (Fla. 4th DCA 1988) to the extent it WESTLAW ' %U i 7 T 110)mson F,eLi el F No Clc Illi to oricii�dl U S Goverrnne!it � '(' %r s Morgran Co., Inc. v. Orange County, 818 So.2d 640 (2002) 27 Fla. L. Weekly D1347 implied that an obligation to comply with applicable zoning regulations precluded a finding of illegal contract zoning. We have found one court only that has distinguished a contract for support of an activity from a contract to rezone. In Prock v. Town of Danville, 655 N.E.2d 553 (Ind.Ct.App.1995), a case not cited by either party, the court found that an agreement between the Town of Danville and a waste disposal company, which owned land annexed by the town, whereby the town agreed to actively "support" the waste disposal company's operation of the landfill, as well as any future efforts to expand the *644 landfill, was not an invalid contract for zoning. The court reasoned that: Although pursuant to the HCA the Town agreed to actively support Waste Management's operation of the landfill as well as any efforts it may make in the future to expand the landfill, the Town was not contractually bound to zone the property in a particular way or to promise that in the future it would rezone the property to expand the landfill. Further, the Town did not promise to support Waste Management's efforts regardless of whether those efforts were in compliance with the Town's statutory zoning procedures. Thus, we cannot agree with the Plaintiffs' contention that by promising to support Waste Management's efforts regarding the landfill, the Town bartered away its decision making authority regarding zoning for the landfill. Id. at 560. The court noted that the Town had already rezoned the annexed property when it entered into the agreement to "support" future efforts to expand the landfill. Even this case, therefore, by negative inference, supports the County's position. We also note that Florida appears to take a stricter view of contract zoning than many other jurisdictions. Morgran urges that the contractual provision that binds the County to support rezoning means only County staff, not the Board. First, given the absence of language of Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk such pivotal importance in the agreement, we decline to find a latent ambiguity. Second, we doubt it would matter.' Morgran seemingly draws a distinction between the Board acting in its executive (governing) capacity and the Board acting in its quasi-judicial capacity in zoning cases. We find this distinction to be unworkable. Whichever hat it is wearing, the County is still the County. 121 131 141 Morgran next complains that the trial court erred in the dismissal with prejudice of its claim for promissory estoppel. The rule, however, is that estoppel cannot be applied against a governmental entity to accomplish an illegal result. Branca v. City of Miramar, 634 So.2d 604 (Fla.1994). It has been specifically held that estoppel cannot be used by a landowner to enforce a contract which constitutes "contract zoning." P.C.B. Partnership v. City of Largo, 549 So.2d 738, 741-42 (Fla. 2d DCA 1989) ("A party entering into a contract with a municipality is bound to know the extent of the municipality's power to contract, and the municipality will not be estopped to assert the invalidity of a contract which it had no power to execute."). Additionally, a party rannnt reasonably rely upon a promise, the enforcement of which would be contrary to established public policy. Brine v. Fertilla, 537 So.2d 113 (Fla. 2d DCA 1988). 151 The only remaining question in this case is whether Morgran should have been given leave to amend to attempt to seek some other remedy or plead some other cause of action. Morgran was not given leave to amend after dismissal of its initial complaint and claims the right to do so. Morgran has failed to identify another viable cause of action, however, in its brief and was no more specific at oral argument. See Dacy v. I 7llage of Ruidoso, 114 N.M. 699, 845 P.2d 793 (1992); P.C.B. Leave to amend should be granted unless allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. State Farm Fire & Cas. Co. v. Fleet Fin. Cop., 724 So.2d 1218 (Fla. 5th DCA 1998). *645 The trial court apparently concluded, based on the undisputed facts, that leave to amend would be futile, and it may prove right. We conclude, however, that Morgran should be given one more opportunity to attempt to state a claim or seek a different remedy, if it chooses. We express no opinion about the viability of any such claim at this stage, however. AFFIRMED in part; REVERSED in part; and REMANDED. WESTLAW 20 17 Ti ju—son Peuiers 1�o clang io o� iginal U S Government \Vows Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Morgran Co., Inc. v. Orange County, 818 So.2d 640 (2002) 27 Fla. L. Weekly D1347 SAWAYA and ORFINGER, R. B., JJ., concur. 818 So.2d 640, 27 Fla. L. Weekly D1347 All Citations Footnotes Orange County also contended that suit was precluded by virtue of the terms of paragraph 3(i) of the Developer's Agreement: Notwithstanding the County's agreement to support and expeditiously process the rezoning of the Property as set forth above, Developer understands that such rezoning process is subject to all County ordinances and regulations governing rezoning, including, but not limited to, review by the Development Review Committee ("DRC"), all applicable public hearings, and approval by the Board of County Commissioners. Further, Developer understands and concedes that the County will not and cannot by law waive the requirements governing the rezoning process. 2 It is also doubtful that an agreement for county staff support only could support a provable damage claim, even one for restitution. End of Document © 2017 Thomson Reuters No claim to original U.S Government Works WESTLAW C) 2017 Thomson Reuters No claim to original U S Government VVorks 5 Mattson v. Kolhage, 569 So.2d 1358 (1990) 15 Fla. L. Weekly D2771 569 So.2d 1358 District Court of Appeal of Florida, Third District. James S. MATTSON, Andrew M. Tobin, and Joseph J. Vetrick, d/b/a Mattson Tobin & Vetrick, Attorneys at Law, Petitioners, V. Danny L. KOLHAGE, as Clerk of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, Respondent. No. 90-1940. Nov. 13, 1990. Attorneys petitioned for writ of mandamus directing clerk of circuit court to accept for filing motions in pending circuit court cases not accompanied by notice of hearing. The District Court of Appeal held that clerk was obligated to accept motions presented for filing in pending cases, notwithstanding judges' memorandum instructing clerk not to accept motions unless accompanied by notice setting motion for hearing with appropriate judge. Petition for writ of mandamus granted. West Headnotes (l) (1] Clerks of Courts Ministerial Functions and Acts 79Clerks of Courts 79k64Powers and Proceedings in General 79k67Ministerial Functions and Acts Judges' memorandum prohibiting clerk of circuit court from accepting for filing any circuit court civil motion not accompanied by notice of hearing setting motion for hearing with appropriate judge was impermissible limitation on obligation of clerk to file motions in pending cases; clerk was obligated to accept motions presented for filing in pending cases, notwithstanding judges' stated objective of expediting flow of judicial business. 7 Cases that cite this headnote Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Attorneys and Law Firms *1359 Mattson Tobin & Vetrick and James S. Mattson, Key Largo, for petitioners. Larry A. Tracy and Joseph B. Allen, III, Key West, for respondent. Beckmeyer & Mulick, Tavernier, for Florida Keys Bar Ass'n, amicus curiae. Before SCH WARTZ, NESBITT and COPE, JJ. Opinion PER CURIAM. Petitioners James S. Mattson, Andrew M. Tobin and Joseph J. Vetrick petition for a writ of mandamus to the Clerk of the Circuit Court of the Sixteenth Judicial Circuit.' We grant the petition. In March, 1989, two judges of the Sixteenth Judicial Circuit directed a memorandum to the Clerk of the Circuit Court for the Middle Keys Division. The memorandum instructed the clerk not to accept for filing any circuit court civil motion not accompanied by a notice of hearing setting the motion for a hearing with the appropriate judge. The memorandum does not apply elsewhere in the Sixteenth Judicial Circuit. The purpose of the memorandum is to assure that there is expeditious scheduling and resolution of motions in civil cases. Petitioners are attorneys practicing in the Sixteenth Judicial Circuit. In three instances they have attempted to file motions in the Middle Keys Division without a notice of hearing. In each instance the clerk declined to file it. Each motion was returned unfiled, accompanied by a memorandum stating, "I'm sorry I cannot accept your motion without a notice of hearing. This is an order from the judge. If you have any questions, please call us." Petitioners contend that the judges' memorandum places an impermissible limitation on the obligation of the clerk to file motions in pending cases. We agree. The clerk is charged with the ministerial duty to "keep all papers filed in his office with the utmost care and security, arranged in appropriate files (endorsing upon each the time when the same was filed )...." WESTLAW T1-,omson RC-L!?ers No claire to orioinal U S Government VVoit.s Mattson v. Kolhage, 569 So.2d 1358 (1990) 15 Fla. L. Weekly D2771 Fla.Stat. (1989) (emphasis added). The clerk is required to "keep a progress docket in which he shall note the filing of each pleading, motion, or other paper and any step taken by him in connection with each action, appeal, or other proceeding before the court." Id. § 28.211. In short, the clerk is obliged to accept motions presented for filing in pending cases. See Outboard Marine Domestic Int'l Sales Corp. v. Florida Stevedoring Corp., 483 So.2d 823, 823-24 (Fla. 3d DCA 1986); see also State ex rel. Kazfnan 17. Sulton, 231 So.2d 874, 875 (Fla. 3d DCA 1970) (as qualified in Outboard Marine ). See generally Stale ex rel. Druissi v. Almand, 75 So.2d 905, 906-07 (Fla. 1954); Ferlila v. Stale, 380 So.2d 1118, 1119 (Fla. 2d DCA 1980). The memorandum directed to the clerk was impermissible and the petitioners are entitled to the requested relief. Footnotes Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk We sympathize with the judges' stated objective of expediting the flow of judicial business. We do not quarrel with that *1360 objective, but less drastic means will need to be employed to achieve it. We therefore grant the petition for writ of mandamus and direct that the clerk of the circuit court accept motions presented for filing in circuit court civil cases. All Citations 569 So.2d 1358, 15 Fla. L. Weekly D2771 The court expresses its appreciation to the Florida Keys Bar Association for its brief as amicus curiae, and participation at oral argument, in this matter. End of Document © 2017 Thomson Reuters No claim to original U S. Government Works WESTLAW -) 2017 Thomson Reuter -s No clan -in to original U 'I Government Works Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk July 21, 2004 City issues Class II Permit with 87 feet height October 4, 2004 PZAB denies appeal of Class II 2004 February 28, 2008 Commission approves Class II with 35 feet height November 13, 2008 Circuit Court upholds Commission's decision November 4, 2004 Commission reverses PZAB July 14, 2006 Circuit Court quashes Commission's decision 2006 I�I 2008 12009 Appellate Court reverses Circuit Circuit Commission approves Class II with 35 feet height April 25, 2012 Appellate Court quashes Commission's decision 2010 2012 January 10, 2013 Commission approves Class II with 87 feet height Commission approves Settlement Agreement February 28, 2014 HEP Board approves Special COA 2013 1 2014 February 7, 2017 HEP Board approves new Special COA 2017 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk 5.9.a HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD FOR STAFF USE ONLY HERB APPLICATION CITY OF MIAMI PLANNING AND ZONING DEPARTMENT PRESERVATION OFFICE 444 SW 2nd AVENUE, 3rd FLOOR MIAMI, FLORIDA 33130 DATE RECEIVED APPLICATION # Jan SIGNATURE -01F PROPERTY OWNER DATE SIGNATURE OF APPLICANT (IF OTHER THAN PROPERTY OWNER) DATE NOTE. A COMPLETE CHECKLISTAND INSTRUCTIONS FOR REQUIREDATTACHMENTS ARE ON REVERSE SIDE. NO CASE WILL BE SCHEDULED FOR A HEARING UNTIL ALL SUPPORTING MATERIALS ARE RECEIVED. Packet Pg. 421 HEPB MEETING DATE a0 5101 and 5125 Biscayne Boulevard Bayside Motor Inn RESOLUTION # V PROPERTY ADDRESS HISTORIC DISTRICT/LANDMARK NAME 6. 5101 RE CO, LLC STAFF INITIALS a>0i OWNER'S NAME 0 1401 Brickell Avenue, 530, Miami, Florida, 33131 F_ APPROVED r W. CONDITIONS m >, OWNER'S ADDRESS, CITY, STATE, ZIP CODE0 305-621-9607 ymoreira@mottonigroup.com F_ DENIED F_ CONTINUED TO: �o w m OWNER'S DAYTIME PHONE NUMBER OWNER'S E-MAIL 04 Iris Escarra, Esq. HEPB APPLICATION:LO APPLICANT/AUTHORIZED REPRESENTATIVE (NAME & TITLE) Greenberg Traurig, PA, 333 SE 2 Avenue, 44th Floor, Miami, Florida, 33130 r— SPECIAL COA I— CERTIFICATE TO DIG f° 0 LO APPLICANT'S ADDRESS, CITY, STATE, ZIP CODE CERTIFICATE OF APPROVAL escarrai� 305-579-0737 @gtlaw.com Cn _ APPLICANT'S DAYTIME PHONE NUMBER APPLICANT'S E-MAIL V c APPLICATION TYPE (Choose as many as applicable) o NEW CONSTRUCTION �ADtDITION ❑ WAIVER ❑ AFTER -THE -FACT WORK 2 � ALTERATION ❑ LANDSCAPING/PAVING u/ DEMOLITION ❑ CONCEPTUAL 0. a a Cal APPLICATIONS ARE DUE AT NOON THE FIRST FRIDAY OF EVERY MONTH FOR PLACEMENT ON THE NEXT AVAILABLE AGENDA w NO CASE WILL BE SCHEDULED FORA HEARING UNTIL ALL SUPPORTING MATERIALS ARE RECEIVED. _ THE HEPB GENERALLY MEETS THE FIRST TUESDAY OF EVERY MONTH AT 3:OOPM. WHEN THERE IS A CONFLICTING HOLIDAY HEPB MEETS ON r AN ALTERNATE DATE. THERE IS NO MEETING IN AUGUST. MEETINGS TAKE PLACE AT: c N MIAMI CITY HALL, 3500 PAN AMERICAN DRIVE ti N COCONUT GROVE, FLORIDA c Prior to submitting an application for a hearing by the HEPB, the prospective applicant is encouraged to meet in a pre -application meeting N to with the Preservation Office to obtain information and guidance as to matters related to the proposed application. The property owner should be present at the HEPB hearing. It is preferred that the owner personally present the project to the HEPB at the a� meeting. If the owner should choose to have a representative present the project on their behalf, that representative must be a registered lobbyist with the City of Miami. For more information on becoming a registered lobbyist, please call the City Clerk's Office at 305-250-5360 or visit their website: www.clmiami.fI.us/Citv Clerk a es lamb ist lol5b lst.as . E TIO OWNERATTESTfUN�RWSTA I HAVE READ ANI II NANDII CrERTIFY TO THE BEST OF MY ABILITY THAT ALL INFORMATIONPROVIDEDINTHAN INFONM JTH P[TTAC A l I A Jan SIGNATURE -01F PROPERTY OWNER DATE SIGNATURE OF APPLICANT (IF OTHER THAN PROPERTY OWNER) DATE NOTE. A COMPLETE CHECKLISTAND INSTRUCTIONS FOR REQUIREDATTACHMENTS ARE ON REVERSE SIDE. NO CASE WILL BE SCHEDULED FOR A HEARING UNTIL ALL SUPPORTING MATERIALS ARE RECEIVED. Packet Pg. 421 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk THE PLANS AND INFORMATION PROVI DED ARE TO GIVE EACH BOARD MEMBER AN ACCURATE UNDERSTANDING OF THE PROPOSED PROJECT STAFF MAY HAVEADDITIONAL REQUIREMENTS DEPENDING ON PROJECT SCOPE. AREQUIRED SUBMITTAL FOR HEPB: u COMPLETED AND SIGNED HEPB APPLICATION FORM ETTER OF INTENT DESCRIPTING THE SCOPE OF WORK IN NARRATIVE FORM ONE (i)ORIGINAL PACKET WITH (1) 11"x 17" SIGNED AND SEALED SET OF PLANS AND SUPPORTING DOCUMENTS (AS APPLICABLE)" � j1HIRTEEN (13) PACKETS OF PLANS ON 11"x 17" PAPER AND SUPPORTING DOCUMENTS (AS APPLICABLE)* L5 DIGITAL FILES OF ALL SUBMITTED MATERIALS TO BE PROVIDED FOR APPLICATION ON A COMPACT DISC REQUIRED MATERIALS: WWPPHOTOS OF ALL FACADES OF THE PROPERTY AND APPLICABLE DETAILS (PRINTED NO SMALLER THAN 4" x 6" ) 'LJ' PROPERTY SURVEY, PREPARED BY A REGISTERED LAND SURVEYOR FROM WITHIN THE PAST SIX MONTHS WITH FEMA ELEVATION ARCHITECTURAL PLANS: *For large scale restoration er new construction plans. Dlease include (1) 24" x 36" set of clans. sinned and sealed EU -CONTEXT MAP AND PHOTOS �I,d SITE PLAN a],,' RCHITECTURAL PLANS AND ELEVATIONS SHOWING EXISTING AND PROPOSED WORK C►YLANDSCAPE PLAN ❑ RENDERINGS (TYPICALLY REQUIRED FOR NEW CONSTRUCTION AND ADDITIONS) PROJECT SPECIFIC ATTACHMENTS: Check with the Preservation Office for spec ific re uiremeritsl ❑ MANUFACTURER'S BROCHURE AND/OR CATALOG PHOTO IN COLOR OF PROPOSED MATERIALS (WINDOWS, DOORS, ROOFING, ETC.) ❑ PAINT CHIP(S) OF DESIRED COLOR(S) FOR EXTERIOR PAINTING IF OTHER THAN BLACK OR WHITE ❑ SECTION DRAWINGS FROM NOA - COUNTY PRODUCT APPROVAL CERTIFICATE (IF APPLICABLE) ❑ TREE SURVEY, DISPOSITION, AND TREE MITIGATION PLAN (IF PLANNING ON REMOVING TREES) ❑ OTHER REQUIREDFEES:CHECKSTOBEMADEPAYABLETOTHECITYOFMIAMI L2COA APPLICATION FEE: $150 ❑ OTHER ❑ NOTICING FEES: NET OFFICE *All after -the -fact fees will be double (2x) the original fee. DATE PAID: CHECK NUMBER: NUMBER OF NOTIFICATIONS: TOTAL AMOUNT: X $4.50 =TOTAL FEE DUE NOTE REGARDING PLANS REQUIRED: PROJECTS INVOLVING NEW CONSTRUCTION, ADDITIONS, OR ALTERATIONS MUST PROVIDE AN ARCHITECTURAL SET OF PLANS INCLUDING A SITE PLAN, ALL ELEVATIONS, ALL FLOOR PLANS, RENDERDINGS, AND A LANDSCAPE PLAN FOR QUESTIONS PLEASE CONTACT THE PRESERVATION OFFICE: Megan Cross Schmitt at 305.416.1416 or mschmitt@miamigov.com Marina Novaes at 305.416.1459 or mnovaes@miamigov.com Trisha Logan at 305.416.1059 or tlogan@miamigov.com COMPLETED APPLICATIONS AND MATERIALS TO BE SUBMITTED IN PERSON AT 444 SW 2ND AVENUE, 3rd Floor TO SCHEDULE AN APPOINTMENT FOR HEPB PACKET SUBMITTAL, PLEASE CONTACT: Olga Zamora at 305.416.2037 or ozamora@miamigov.com Q O L 0 m a� c N M ul N u7 c CU 0 ul) N M T If the applicant would like to appeal a decision of the HEPB, they may submit an appeal to Hearing Boards to bring the item before the City Commission. Packet Pg. 422 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk 5.9.a ® Green bergTraurig Iris V. Escarra Tel 305.579.0737 Fax 305.579.0717 escarrai Wr gtlame coni January 6, 2017 VIA HAND DELIVERY Megan Cross Schmitt Preservation Officer City of Miami Planning & Zoning Department 444 SW 2nd Avenue. 3rd Floor Miami, FL 33130 Re: Special Certificate of Appropriateness Application / Bayside Motor Inn Motel / 5101-5125 Biscayne Boulevard, Miami, Florida (Folio Nos. 01-3219-018-0070 and 01-3219-017-0090) Dear Megan: Our firm represents 5101 RE CO, LLC (the "Applicant") in connection with the proposed restoration of the Bayside Motor Inn Motel located at 5101-5125 Biscayne Boulevard, Miami, Florida (the "Resource"). We are pleased to submit this letter of intent together with the enclosed materials, which collectively detail the particulars of the Application for a Special Certificate of Appropriateness for restoration, partial demolition, and addition to an historic resource (the "Application"). As you are aware, the City of Miami's (the "City") Historic and Environmental Preservation Board ("HEPB") adopted Resolution No. 2014-006 (the "2014 Resolution") approving a Special Certificate of Appropriateness for the restoration, partial demolition and new addition to the Property. A copy of HEPB Resolution No. 2014-006 is attached as Exhibit "A." Please accept this letter of intent, together with the enclosed application and site plan prepared by Urban Robot Associates, dated January 6, 2017 (the "Site Plan"), as the Applicant's request for approval of certain modifications to the plans approved by the 2014 Resolution (the "Proposed Restoration"). Because the proposed modifications, as depicted in the Site Plan, are in accordance with the Secretary of the Interior's Standards and the HEPB approved Miami Modern (MiMo) design guidelines, the Applicant respectfully requests that you approve this Application. I. The Property The Property is located within the City's MiMo / Biscayne Boulevard Historic District ("MiMo"). More specifically, the Property is located on Biscayne Boulevard between NE 51 st and 52nd streets. M6999098i�YAURIG, PA. a ATTORNEYS AT LAW e \,%'W W GTLAW COM 333 S E 2nd Avenue ■ Suite :•100 • Mia[N. FL 33131-3238 - Tel 305 5790500 ■ Fax 305 5790717 Packet Pg. 423 Submitted into the public Record for item(s) On 05-25-2017 Ms. Megan Cross Schmitt January 6, 2017 Page 2 PZ.15 City Clerk Under Miami 21, the Property is zoned T4-0. Based on the information found on the Miami -Dade County Property Appraiser's Office website, the Property consists of a total lot area of 29,360 square feet or 0.67 acres. The Resource is a contributing structure located within the MiMo District, as depicted on the MiMo District's contributing structures map, attached as Exhibit "B." The Property is currently improved with the Resource (a two (2) story motel built in 1952 in a simple mid-century modern design) and a separate non-contributing structure which is attached to the Resource by a one (1) story entrance lobby. II. Proposed Restoration As depicted in the Site Plan, the Proposed Restoration consists of the restoration of the historically significant mid-century modern exterior features of the Bayside Motor Inn Hotel, the demolition of the non -historic portion of the Property and the addition of a new three (3) story structure containing retail and office uses (the "Proposed Addition"). The Proposed Restoration also includes an underground parking garage and a new lobby that will connect the Resource and the Proposed Addition. The Proposed Restoration will preserve and restore the Resource's principal historic features and decorative elements. As detailed on the Site Plan, the Proposed Addition has been designed to be compatible with other structures within the MiMo District and will further enhance the historic fabric of Biscayne Boulevard and the MiMo District. The Proposed Addition will contribute to the MiMo District's diversity of design and serve as an example of modern architecture which not only respects but enriches the Mimo District's historic and cultural heritage. Pursuant to Section 23-6.2(h), alterations shall not adversely affect the historic, architectural, and aesthetic character of a historic resource. The Proposed Restoration will enhance the historic, architectural and aesthetic character of the Resource and the MiMo District at large. The Proposed Restoration will restore the Resource's original appearance in material, design, color and texture while the Proposed Addition will serve to enhance and highlight the Resource and its architectural and historical importance. Should you have any questions or require additional information, please do not hesitate to contact us. As always, we look forward to working with you and your staff as we move through this process. Rog Ls, Iris V. Escarra MIA 1856796820 5.9.a GREENBERG TRAURIG P A + ATTORI IEYS Ai LAW ■ WWW GTLAVV.COM Packet Pg. 424 Exhibit "A" Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk Miami Historic and Environmental Preservation Board Resolution: HEPB-R-14-006 File ID 04-01208b February 4, 2014 Item PZABA Mr. Gary Hecht offered the following resolution and moved its adoption: A RESOLUTION OF THE MIAMI HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD, APPROVING WITH CONDITIONS AS DESCRIBED IN EXHIBIT "A" (HEREBY ATTACHED), AN APPLICATION FOR A SPECIAL CERTIFICATE OF APPROPRIATENESS FOR RESTORATION, PARTIAL DEMOLITION AND NEW ADDITIONS TO A MOTEL AT 5101- 5125 BISCAYNE BOULEVARD WITHIN THE MIMO HISTORIC DISTRICT. Upon being seconded by Mr. Gerald C. Marston, the motion passed and was adopted by a vote of 9-0: Mr. Timothy Barber Mr. David Freedman Mr. Robert John Graboski Mr. Gary Hecht Mr, William E. Hopper, Jr. Mr. Jorge Kuperman Ms. Lynn B, Lewis Mr. Gerald C. Marston Mr. Hugh Ryan Mr. Todd Tragash Mea c ughlin nese afIon Offi r STATE OF FLORIDA j COUNTY OF MIAMI-DADE } Yes Yes Yes Yes Yes Yes Yes Yes Absent Yes 19 Execu on D to 5.9.a I 0 LO N M co Personally appeared befogs me, the undersigned authority, MMe ar McLauah,ln, Preservation Officer of the City of Miami, Florida, and acknowledges that she executed the foregoing RRefolution. SWORN AND SUBSCRIBED BEFORE ME THIS DAY OFf l 2014. G1!SSG' `rrui )(ro Adljl�� Print Notary Name Notary Pubic State of Florida Personally know or Produced I.D. My Commission Expires: Type and numl�_-r of I.D. produced Did take an oath or Did n0take an oath t1iyy VMIESSA TAUJIU O MY COMMISSION 0 EE 105250 EXPIRES: July 11, 2015 Bonded ThruNolarlPubVcUnderwkers Packet Pg. 425 Submitted into the public Record for item(s) On 05-25-2017 EXHIBIT "A" File ID 04-01208b PZ.15 City Clerk 1. The window design shall reflect a historic window type found on 1950s motels, which can include divided -light steel casement, awning, or jalousie windows. Frames shall be silver in color and glass shall be clear, Operation type may be casement or single -hung, 2. All applied brick details shall remain intact, including on window bands and columns. These features shall be painted a contrasting color. 3. The decorative concrete block garden wall fronting Biscayne Boulevard shall be replaced with a MiMo-style decorative concrete block wall along the line of the current wood fence around the pool area. 4. Original railings shall be retained. 5. All signage, lighting, site work, fencing, and landscaping shall be subject to HEPB approval. 6. All mechanical equipment, including air conditioning compressors, electrical boxes, solar panels, etc. shall be located so that it is not visible from the public right-of-way. 5.9.a i I r Packet Pg. 426 -4Yl,;},;t "R" Submitted into the public Record for item(s) PZ.15 Un 05-25-2017. Cily Uerk CITY OF MIAMI Minto HISTORIC DISTRICT Ne e TM. r 7171 L fTr 17�YI IH IN 711 !w i. a _• _� J ; - - E I Lwl i f --- P:E ITTi S'T' TIT NE 7 Nt: $GT TER - III �• _ ..- R.E,.,d{TT::T'. T7 X7'1 1 ..: rrsrs'r—�—-- — ui]l,_ 11T1 `N�9 Efin 57_ J ' I I # hE � r 7. r FTki `t - 'n o a s p jj I I h f II TER,rJ Z ¢ In IL +I� • •j b z Z — z Z zf i I �'-�--' r +E�}rSu Nf_ •ll-�-'I �— T. ] I fJ NE 60TH TER ❑ UNNAMED _ M ■ Y ■ r a17F.�. I i . IME'-a`I'1"1. I'.= �I - - ��_ l l • .# �4:,� Y I jiillRE NTYfTPR '� r" LATER FI -TIM 1i I I o, JA ■ i ...z 4F } l iTIT Tw I� `���`►�sr�r-� 1� T Legond ■ MiMo_Boundary I MIMo Join 160 320 640 F-1Contributing and Non Contributing _Conlnbulmg Non-Conblbu9mg MiMo_Parcels� urnrq yy'[Iy-�tJ.e�nl EignlNi6�lnwirt If ff! llwniieWlIIFRHYr9&C dFiRA'YV 191)r Packet Pg. 427 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Print For 5.9.a Fu r Office se Only: c� Checkfi ReccipO l „ it , lU i . ' ' " CITY OF MIAMI L Ethics Certificate ,I ft City Clerk, 3500 Pan American Drive, Miami, FL 33133 Phone: (305) 250-5360 LOBBYIST REGISTRATION (1) Lobbyist Name: Escarra, Iris Last Name, First Name, Middle Initial Business Phone: 305-579-0737 Business Address 333 SE 2nd Avenue, 44th Floor, Miami, Florida Zip 33131 E -Mail Address escarrai®gtlaw. com (2) Principal Represented 5101 RE CO, LLC Principal's Business Address1401 Brickell Avenue, 530, Miami, FL (If different from above) Zip 33131 (3) Specific issue lobbyist has been retained to lobby (if representing a corporation, partnership or trust, give business address of chief officer, partner, or beneficiary of same, and the names and addresses of all persons holding, directly or indirectly, at least five percent (5%) ownership interest in said corporation, partnership or trust). Zoning Entitlements (4) Lobbyists shall state the extent of any business asNociation or financial relationship with any nlctnber(s) of the City Commission, any member of City staff beli,re whom he/she lobbies or intends to lobby. (If applicable, please explain) None Lobbyists shall pay all registration fees ($525.00 annually, plus $105,00 for each principal represented and for each issue a lobbyist has been retained to lobby on behalf of any one principal), and specifically define the issue for which they are employed, The Clerk shall reject any statement which does not detail the issue for which the lobbyist has been employed. nhh.Ni"l <hall alku �uhnlil :l rcrlilic:llc rel oillph•liun of :III ethic•, cnur�c proNided hti Ittc Mi,nrni-I)mle ('uUlttN 1'l,n,nti;..lrul utl I thic1, & I'Uhh 1 ru;l r l ( ilk ul 111.irni runll>lrlt tl nu mull- tll;ln r nc ( I I Nenr prior to rc�lslc:rin,, I do solemnly swear that all of the lbregoing facts are true and correct, and I have read or am familiar with the provisions contained in Sections 2-651 through 2-658 if the Cite of Miami Code, as amended, including "annual registration, withdrawal, reporting requir0n nls. de - to ons, examinations, penalties for violations and contingency fees." y� Lobbyist Signature State of Florida, County of Miami -Dade L�71 �— L-nay to and.rufrsrribccl heron my this 1 of JQ - ' I olar."r Delmi7 Clerk \� l 11'"rr'* JANET WWLLO MY COMMISSION M FF 1109009 EXPIRES; June e, 2017 Note: Annual Registration Fee: Effective through 12/31/2016 ah r" 9ormM Tbru Nolary Public UndrrmlYn v CO) `m m 3 O M W c v MA C0 LO N LO c ,a 0 i N M to c 0 Q CL a m a LU 2 r` O N f` 0 N O N M T 0 c E s m Q Packet Pg. 428 Submitted into the public Record for item(s) PZ.15 i= City of Miami On 05-25-2017. City Clerk OFFICIAL RECEIPT 5 r_ _ Sales Tax $ Tod11 yj /100 Doll, Recr'ived ftf"Ir Rele i1two j (, 11ws Rt'reVALID not AtID unless 11r1teri, 8�,; � � — V filly d in and signed by authou-'ed nm ployre r,,f rlemidment or divaion digs Depar11 int:- ignated hereon and until thn Ci1v has collected the proceeds of an,, chi;okiii f0 Division- > 1�:-n,:INiFd ,�s Cr��,�rnNnl harein - — - 2 7 C I FrI�Tr,1 ;0^ ne, 11J'(i3 Distribution: While Cwlt )mer Cannry Frinnut Pink ^suinu Uop;ntrrr_11 m d C IS 01114-K is Vrl<IU WITHOUT A GAeum a BLUE OoRbtR H AND SA PLU8 A KN --!!I! 10HT ds FINGEMPFOINT WATERMARK ON THE BACK - OLD AT ANGLE TO VI R _-! ------ ------ ----- - _ �..—.— - V fn SiGreenbergTraLirig yells Fargo Bank, N.A. No. 751013LO Florida N 8400 NW 36th Street t Suite 400 63-751/631 Miami. FL 33166 0110612017 c n: NOT NEGOTIABLE AFTER 90 DAYS FROM ISSL G PAY ��� 0 r 71e4XW4 v[. 56CGtr 44/100 n&444 • • • • • • • 10Fr.4 I i N M TWO SIGNATURES REQUIRED FOR AMOUNTS OVER $110,000. TO GREENBERG TRAURIO THE purating AcCoL111I C ORDER OF CITY OF MIAMI 0 CL CL Q M Vold If Over $105.00 a W 2 11'75LOL3110 1:0631075L31: 200001464864711" 0 N O N O N M CO 0 ll. w C d E L V tD r r Q Packet Pg. 429 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk ,I [ rog ua e�uaaea,'x1 o1I.1E, URBAN ROBOT ASSOCIATES BAYSIDE MOTOR INN 5101 -5125 BISCAYNE BOULEVARD MIAMI, FL 33137 SCOPE OF WORK: - FIIIU —liff—o1--,diWiM nodh ahudure -R—lcn of oarkbu0np hmano wa ha4lc"e - New under.—d parlmy at rodh plaque REVISIONS SUBMITTAL: HISTORIC PRESERVAIONBOAR__0 1st SUBMITTAL: JANuARY6.2ay A-00 ASE 53rd STYw y �• d AV 1 1 ! .A. a a. g• � f i ,� � _�-� �� ., _ r {��, •d, � '. .. � I� ' � � , ..i p ilii ' i - 7s� 1 r .J 7 t' l .T •c .11 IT 'Aw 'Memo 04 4 s r 1. #.fI t �. j - - . TER - aka' x MAP OF BOUNDARY SURVEY rw7W r�� - .wFsr NE 52nd S7wFEP �.ww.w. to W z e Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk �,•v•-,.a- nr,,-raWiv rnane�`iao:vo"�ivin°Yi m�vrw�"•rc wwn..rm.nwenwa ronma M � _ _# LI 3 z { 6 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk KEY PLAN Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk au�sw�s.wox,3 ■ Ir 1 ` Y iao-JR., in, cpp+M�iF �x1 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk y � M � w R Ir � [o-•.�,Sm� •uv J Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk (;� Y FLOOR PLAN Me IAT Wi3Tk I_______—_—_—_� I 4 I � NEO Q I V®® e LOTAREA 79.4'78.80 W R 7 C 1 1 I _Sr LAY F^ Xv� ' s �WIII�kAYE9 L —iF[gWUsn•:: i PROPOSED BUILDING COVERAGE', Sq ft f Kms, t HISTORIC BLDG COVERAGE ! i 09Z.57 sq ft I � NEW CONSTRUCTION BLDG COVERAGE 8,393.07 sq It PRWATE FRONTAGE I - I I BISCgYNE BOUL�ARD I I Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk --, --- ALLawABtElnrcovERACE'-;"-�.. ALLOWABLE BLDG COVERAGE: 17,687.18 sq R PROPOSED BLDG COVERAGE 13295.58 sq.0 LOT AREA 19,479.80 sq.R. ALLOWABLE BLDG COVERAGE %: 60% PROPOSED BLDG COVERAGE %: 45.1% ZONING CITY OF M AMI nworsuw s,aTMus�i.a� r - �• wiwiy�uku 11EiO11F. ` _vasa .kRisnrYlNes1.�� W o asaras.gs �is�Ns.•rs • . y, aw•rT wv w.ur vvcxtiv�'•s _• _ ;C ;Dl N cme -sur ��l r 3 4 r 5 r i a ' w 2 w F G; r - o la. N +r Z ,If 1 - RETAIL ME I t LOBBY Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk • I9a 10 r 11 12 — -- ----- —y3— - i 17 ti F• COURTYARD I ws..i [wnry>•1.� 9114E SAE+ 'I I. W S,4 CUT BISCAyNE BOULEVARD. _ _ I I FLOOR PLAN NET SF AREA- HODRIC PROGRAM LEVEL AREA(Sfl 1 s1 LEVEL levet O1 3,929.16 3,929.16 sq h 21417 LEVEL Levet D7 2,89859 2.f�.48.59 sq A 6,827.75 sq ft NU a AREA - ww C0w7RWIM- M ' PARXW PROGRAM LEVEL AREA(Sfl OFFICE Level D2 6.926.50 Level 03 7,157.32 14-065-82 sq R RETAIL Level 01 A,9D8.45 4,908.45 sq ft 18.99427 sq ft' PARKING COUNTS GROUND /SITE: 17 STREET: 6 UNDERGROUND: 37 TOTAL: 60 PARKINGCOUNTS REO'D PROVO HISTORIC: 0 NEW CONSTRUCTION: 57 SO TOTAL 57 60 (16,9942711,000 x 3) C D 34 5 19 — 6 1 20 8 35 33 32 22 31 � 16 23 _ 30 93 15 24 14 25 ew.•;s�.srri 28 73 26 27 3 f2 LEI. - w z 10 '9 f 7 6 5 4 \-~ 3 1 2 A 8,1 C K BISCAYF/E BOOIEVpRD E a 1 FLOOR PLAID _ Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk ua E 8.1 C -� h (D) �E� 7 ...CgyNEaOULE�,RO Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk NET SFARiA- HIMRIC PROGRAM LEVEL AREA;Sq 1 sI LEVEL Lwia 01 3,929.11! _ 3.929.16 sq R 2N➢ LEVEL Level 02 1899.59 2,89059 sq f<_ aTM E 6.827.75 sq !t_ NETSF AREA=H'EVV CONSTRUCTION PARKED. PROGRAM LEVEL AREA(Sq OFFICE - Level 02 6.925.0 Leval 03 7,157.32 14.085.E2 sq R RETAIL Level 01 4,9[78.45 � Not 1s,s�a.27 �n n PA3ik Inky GRUNTS GROUNDr%TE: 17 STREET 6 ., UNDERGROUND- 37 -. - TOTAL: 60 II PARKING COUNTS REQD PROV'D HISTORIC: 0 NEW CONSTRUCTION: 57 60 F TOTAL: 57 60 (18,9942711,000 x 3) W Z L'� I I I I K I I .iv i w MAL �I 0 z' z� 1 I`7 �D) (El 1 FLOOR -LA?: - _ \ 81ST YNE BOULEVARD 4 3 2 x Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk NET SFAREA- HigTi]kilC PRD;PAM LEVEL. AM. M— IM LEVEL Level 01 3,929.16 3,92.4.15 sq ft 2ND LEVEL Lfrial02 2,$98:59 2 89859 sg_fl 6,`27.75 so 8. NET SF AREA-NEWCQNSTRUCrKW— PARKED PROGRAM LEVEL AREA (SF) OFFICE Level D2 5.928.50 iawl93 7.15732 34.08s.82 sq 0 RETAIL Level 01 4,908,45 �1d,994.27 sq L1 PARKING COUNTS GROUND /SITE: 17 STREET: 6 UNDERGROUND: 37 TOTAL: 60 PARKINGCOUNTS READ PROVO HISTORIC: 0 NEW CONSTRUCTION: 57 50 w TOTAL: 57 60 (16,9942711,000 x 3) �J m w z 4� w i FLOOR I'LAN A (B Cl D { Ei I i I { I I Ai A33t 2 ow _ S `E I I BISCAYpE BOULEVARD Submitted into the public Record for item(s) PZ.15 On 05-25-2017, City Clerk I NET5FAREA-liI3fORIC •I "DCGRAM LEVEL AREA Sfl I s [ LEVfL —_� Level 01 3.929.16 _ 3,929.16 sq ft I 2ND LEVEL Level 02 2.4$8.59 2A%59 sq fl _ %,W.75 sq s NET SF AREA-WR-6TgUGTIQN! PARKED PROGRAM LEVEL Afa(SF) OFFICE Level 02 6,420.50 LEvel 03 7,157-32 � 14.085-82 sq ft RETAIL Level 0l 4.900-45 4,908-45 sq ft J 18.zSQ7 sq IF: PARKING COUNTS GROUND /SITE: 17 STREET: 6 UNDERGROUND: 37 TOTAL: 60 PAWNG COUNTS REOT) PROV I) HISTORIC: 0 NEW CONSTRUCTION: 57 60 TOTAL: 57 60 w (18 994.2711,000 x 3) �I I W" zl OFFICE GUESTR00 - T DINING 111 r _ DINING MECHANICAL I OFFICE. OFFICE i III FIOFFICIr OFFICE I RETAIL LOBBY -� PARKING GUESTROOM DINING Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk TRANSVERSE SECTION 1 ) LONGITUDINAL SECTION (Z� +35' —LRggf Level za' iLevel 03 +a g s- SRovf }fnc •fx' 4Lgvel Op S4evei uaF{: � +0' —1Level Oi y3. Water Ta6h •xs' iftagCLevd •2a' 1Level 05 38'3' 1Rcoi FiitL 13' tiLevel 02 Lewd 02 H41- ;Ls�� fa dNgrkrTa61e •L6Ysl-01 CLEAR GLASS CAST IN PLACE CONCRETE FLOORING WITH CAST IN PLACE CONCRETE EXPOSED SHELL AGGREGATE ------- ------- • Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk PAINTED WHITE STUCCO PW SW 7004 OFFICE - ALUMINUM GRAY MULLIONS RETAIL PARKING of HISTORIC BUILDING ACCENT COLOR CLEAR GLASS PAINTED WHITE STUCCO SW 6764 SW 7004 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk ALUMINUM GRAY MULLIONS ]5" Roof Lavelr 24' L6YGI Bar Ran4Fwatj t3' Lever uz'r' LmvGE f1$ � s.� D" ,Lewd D.tr 11 1 11 II �il�'i>•iil•iiiiiii�iii Imo` II II II II li•iiiiiiii� liiiiiil 1 I 1 11 11�•i iliil♦lil�ii_iiii,i,i 1 i I I ir•iiiliri 1'ii�iiA!i�i Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk - METAL MECR WCAL EQUIPMENT ENCLOSURE PAINTED STUCCO BRISE SOLFJL CI 1115r., PAINTED STUCCO — - - - y-' — PWdTED STUCCO !ING`- I� •_.� --. �- - UNDEGROUND PARKING BEYOND--. � 35' _ Roof Level r 24• PAINTED STUCCO Level 03� C4MNG Fn Ruol tTir.l� , I — —.I— v 7 — B'-1 Levin HisL- _ HT f 0' LGveI 01r � — UNDEGROUND PARKING BEYOND -- r 1 1110 MIN Roef Level �d �Lcvel OS �Raol F4e1, P e" ILeval 2 8'-tr4 }Leval 0.2.mv Level flt 1L11 11a SLavel -01 EAST ELEVATION 2) METALMECNAWCAL EQUIPMENT ENCLOSURE OWING S3S'-1.5', Levnf t2d Levr103 RoolFR�l- _ 13 v'Level D2 AypiTEO �4'-t!d" Cev2T 02 Hisf. 3. �Cevei-07 VJESTELEVATION Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk NORTH ELEVATICN ;21 METAL MECHANICAL EQUIPMENT ENCLOSURE PAINTED STUCCO 35' BRISESOLEIL _ .y_ _ . 35' Roof Level - '4'1"t- ry'T ry'I (1'i tiRaol Level I � j I dj LLI W SLI PAINTER STUCC _: C24' _I �7jjr� ® j�� �''j �7 � ] Ir I I S2<' Leve10 �-. _1-I L lLl .I Lrve107 l9'3' rJ d ^1NCI _ 17 5" RaeL�•@iL '��-�I j T SLI 1-f ,LI L4 11 ryRoal Hist Leve102r S - V �-�� - tiIJ 9'-ILevel 02 Level 02 H6L� GLAZINGGLAZINGGLAZINGL - � S• V.[" j. Lead 02 Hist La d 0" I p• 10 SOUTH ELEVATION i) - - ---- METAL MECHANICAL EQUIPMENT ENCLOSURE Roo.L—(Level - �Roo/le�el GLAZING PAINTED STUCCO BRISESOLRL 19'5" Ruolull AI. II -. - '—� ,=� - PAINTED STUCCO Leve102 'v — wV.�lrfz Z'- __ M 031W__I-,Z' {. i.r _ � -JIB— —T'Level �Hmt -- GLAZING ylPivel01 NORTH ELEVATICN ;21 METAL MECHANICAL EQUIPMENT ENCLOSURE PAINTED STUCCO 35' BRISESOLEIL _ .y_ _ . 35' Roof Level - '4'1"t- ry'T ry'I (1'i tiRaol Level I � j I dj LLI W SLI PAINTER STUCC _: C24' _I �7jjr� ® j�� �''j �7 � ] Ir I I S2<' Leve10 �-. _1-I L lLl .I Lrve107 l9'3' rJ d ^1NCI _ 17 5" RaeL�•@iL '��-�I j T SLI 1-f ,LI L4 11 ryRoal Hist Leve102r S - V �-�� - tiIJ 9'-ILevel 02 Level 02 H6L� GLAZINGGLAZINGGLAZINGL - � S• V.[" j. Lead 02 Hist La d 0" I p• 10 SOUTH ELEVATION i) *AN" P,-,--= SMJIL ~I Flow a f A I' I � 1 P ,r, -,,l !": RL, - �� tom+ � `l 4 � 4 C? !� 'e ,R 'l �� J mil; .� Y, • ..- .k - _ Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 1 _TP,EE REMOVAL& REPLACEMENT PLAN Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk r2- TREE PROTECTION DETAIL x.xVY 4 Qn alroexi«. ie xvr]m.l n 1 � yp�..�+«n[be xbnre donr osl N.p..rwl xahsb R VbvdellY. l! IMls.+roex p. v.r� �. a]..�m.«.w b«p.eaam.r T�"S ce�x 1 _TP,EE REMOVAL& REPLACEMENT PLAN Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk r2- TREE PROTECTION DETAIL x.xVY 31roe� ]z x.y,lrml Qn alroexi«. ie xvr]m.l ntb..�xrnbxnY`eolm.rcex yp�..�+«n[be xbnre donr osl N.p..rwl xahsb R VbvdellY. l! IMls.+roex p. v.r� �. a]..�m.«.w b«p.eaam.r T�"S ce�x nN.nn ..«b«N.b.�•n. �L9x IM.lo�eagt<YI lreY�bq»fgtlll Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk ^:I ' GROUND LEVEL PLANTING Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk ayrw c.s W 5s.m+l r.. i.rin�xr.e w i19.'Ur,r ,Yxr. Iran .. .n . t4.rrsrtrMra ... tM P� li o.r r1 v r . nYxd re .- ro Caw. va o..rcxnr , '1r � y�+la1WF. tiv.rW ti •r N x V I� _.1 ..M -✓<', Fr,a«rs•nr1. •... w.+.w-EA... y _r` M X Y 1IESt GROUND LEVEL HARDSC+APE PLAN Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk CIP CONCRETE CIP CONCRETE ENPOSEC CIP CONCRETE RANO CONCRETECOBBLE Z CONCRETE PAVER riPEs6�api< syTnbl Irm suTmm�o. ,CPLurve l IS.ffiD � �CP CaoNe Benz � rCdPNt 2®5B 'lbpp 3.5518 GROUND LEVEL LCGH-MG PLAN Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Minmiuli LTV7W _ IJ yo�wr.: .. _Irm4 —__. ..-_>•wr.va w __-wn.f .. ew. c ...,n .-.. ,I w.. I F_. -' _ In GROUND LEVEL LCGH-MG PLAN Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk [10, Minmiuli LTV7W I 101 LIGHTM 'rrr� �.t yo�wr.: .. _Irm4 —__. ..-_>•wr.va w __-wn.f .. ew. c ...,n .-.. ,I w.. Rnr�cw4,,,,.rr. o..e app: Spec 1II ulloln F_. -' _ In yy '� SIaILye I I�Ip :v �o I he ED m ------------ SA� _ MODEL: V2 VISIONARY SERIES LOWY - - � • IEr-r:r. [10, Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Staff: TL Application received: 1/6/17 CITY OF MIAMI PLANNING DEPARTMENT Staff Report & Recommendation To: Chairperson and Members Historic Environmental Preservation Board From: Megan Schmitt Preservation Officer Applicant: Iris Escarra, Esq., representing owner, 5101 RE CO, LLC Subject: Item No. 10 — 5101 and 5125 Biscayne Boulevard The applicant, Iris Escarra, Esq., representing owner, 5101 RE CO, LLC, of the subject property which contains a contributing and a non-contributing building located in the Minto/BiBo Historic District is requesting approval for the renovation of the contributing structure, demolition of the non-contributing structure, and the new construction of a three-story commercial building. BACKGROUND: This is a new application. This property had previously applied for a Special Certificate of Appropropriateness in 2014 for the renovation of both structures, partial demoltion, the construction of a one-story wing on the southwest corner of the contributing structure, and a new addition between both structures to replace the existing entrance. This plan was approved under HEPB-R-14-006. THE PROPERTY: The subject property is a two-story contributing motel built in 1952 on the south end of the block (5101) and a two-story non-contributing motel structure on the north end of the block (5125) with a one-story entrance lobby connecting these structures. HEPB- FEBRUARY 7, 2017 Page 1 of 5 Packet Pg. 457 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Staff: TL Application received: 1/6/17 �-�I I [ '� I Ll 1 ANAT.VCTq- The subject property is located on Biscayne Boulevard between NE 518t Street and NE 52 Street. Plans call for the renovation of the contributing structure on the south side of the block, demolition of the non-contributing structure on the north side of the block, and the new construction of a three-story commercial building. Renovation of 5101 11iscayne Boulevard The Preservation Office does not have a historic photo for this structure and therefore cannot confirm whether or not certain features have been modified over time or not. In the property record card shown below, the layout of the property in a courtyard formation, and currently remains in this configuration. HEPB- FEBRUARY 7, 2017 Page 2 of 5 5.9.1a Packet Pg. 458 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 5.9.b Staff: TL Application received: 1/6/17 Elevations show the replacement of all doors and windows. New doors will be a mixture of clear glass storefront doors and windows will be mixture of casement and fixed windows with muntins to imitate awning windows. Renovations will also include the removal of the existing in -wall air conditioner units and repairs to exterior walls. Exterior walls will be painted white with a blue accent color for the trim. Elevations do not show the existing applied brick shutters or the brick veneer covering the colums, however these elements must remain. The existing railings that line the staircases leading up from the courtyard and surrounding the second floor balconies must be salvaged and re -used. In areas where there is to be new railings, this design must be replicated. There is also a small portion of a decorative concrete block garden wall that also must be retained. Plans include the partial demolition of the contributing structure to remove the one-story wing located on the southwest corner of the historic structure. In the same location, a new one-story wing will be constructed with a curvilinear shape. This portion of the project proposal replicates the plan that was presented to the HEPB in 2014. The exterior wall of this new addition will be almost entirely covered in storefront glass and will provide a new exterior staircase on the front of the structure that provides access to a second floor outdoor dining terrace. The exterior staircase will be partially painted the blue accent color also contain a new sharkfin sign to display the name of the hotel. Covering the outdoor dining terrace is a free-standing concrete canopy that will be planted with a golden creeper vine. Staff would recommend that the proposed addition more closely identifies with the historic plan that is shown in the property record card and retain the square shaped plan, rather than a curvilinear plan. Staff asks that the applicant retain the original sign structure and to use open face channel letters to depict the name, Bayside Motor Inn. Demolition of 5125 .Biscayne Boulevard, Nese Construction of three-story- Con-imercial Building As shown on the map within the designation report, the structure located at 5125 Biscayne Boulevard on the northern corner of this project site, was determined to be non- contributing to the MiMo/BiBo Historic District. The applicant is proposing to demolish this structure and the current one-story connection between both buildings, and to construct a new three-story commercial building. Inspired by breezeblock, the main focal point of the new construction project will utilize an enlarged version of a brise soleil, providing a modern take on a familiar MiMo pattern to form the texture of the exterior stucco wall. The footprint of this structure is set in the same location as the existing structure, however utilizes an undulating storefront design on the ground level — with the storefront doors set at an angle to access the retail spaces. Above the ground floor, the exterior of the structure is primarily focused on the enlarged brise soleil with rectangular windows set beyond. The extruded form reaches outward and HEPB- FEBRUARY 7, 2017 Page 3 of 5 Packet Pg. 459 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 5.9.b Staff: TL Application received: 1/6/17 is painted white, with a background of the glazing and gray stucco. Glazing on the exterior forms four rows of windows, however the interior space accommodates two floors of commercial space. Overall height to the top of the roof level is 35'-0", which is in line with the MiMo iiew construcLlon guidelines. On the top of the structure, mechanical equipment and bulkheads are centered on the roof deck and screening is shown on the elevations — both blocking the view of the rooftop appurtances from street level and surrounding structures. On the rear of the structure, glazing is the primary feature. Staff would recommend that the applicant provide an interior or exterior shade treatment to prevent light spillage from the interior spaces in Lo Llie adjacent, resideriLial neighborhood. Acting as a connection between the historic structure and the new construction project, a new two-story glass and stucco structure is provided. This connector is setback from the main fagade and will provide ADA access to the second floor of the historic structure. Overall, staff is supportive of this new construction proposal and believe it successfully captures the requirements of the Secretary of the Interior Standards for new construction in a historic district. Site Improvements New landscaping and paving is provided throughout the property. Plans show a variety of tree species that are to be planted in new MiMo-esque planters. Along the rear property line, an existing stucco wall will remain along with many of the existing trees and will be filled in with a generous portion of additional landscaping. M Spot and well lighting is shown within the landscape plans, which allows for highlights to 0 the built and natural features of the site, however plans do not show lighting for the parking lot. Any pole lights that are proposed for the site are limited to a height of 18'-0" a and must be warm in color. U) Underground parking will be installed under the new construction project, with access a provided from an entrance off of NE 52 Street into the rear parking lot, and a ramp that is = located in the center of the project site. ,L STAFF RECOMMENDATION: The Preservation Office recommends that the application for a Special Certificate of Appropriateness for the renovation of the contributing structure, demolition of the non-contributing structure, and the new construction of a three-story commercial building be approved with conditions. 1. All glass shall be clear with the option of Low -E. 2. Applied brick shutters and the brick veneer covering the colums must remain. 3. The existing railings that line the staircases leading up from the courtyard and surrounding the second floor balconies must be salvaged and re -used. In areas where there is to be new railings, this design must be replicated. HEPB- FEBRUARY 7, 2017 Page 4 of 5 Packet Pg. 460 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk 5.9.b Staff: TL Application received: 1/6/17 4. The existing decorative concrete block garden wall must be retained. 5. Provide a square shaped plan for the new addition on the historic structure, rather than a curvilinear plan. 6. The original sign structure must be retained and use open face channel letters to depict the name, Bayside Motor Inn. 7. Applicant to provide an interior or exterior shade treatment to prevent light spillage from the interior spaces into the adjacent residential neighborhood. 8. All lighting on the exterior of the property and in the parking lot shall not be higher than 18'-0" in height and be warm in color. 9. This Certificate of Appropriateness is subject to approval by zoning, building, and all other required city departments. HEPB- FEBRUARY 7, 2017 Page 5 of 5 Packet Pg. 461 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Miami Historic and Environmental Preservation Board Resolution: HEPB-R-17-016 File ID 1632 February 7, 2017 Item HEP13.10 Ms. Lynn Lewis offered the following resolution and moved its adoption A RESOLUTION OF THE MIAMI HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD APPROVING, WITH CONDITIONS, AS AMENDED, (EXHIBIT "A") A SPECIAL CERTIFICATE OF APPROPRIATENESS FOR THE RENOVATION OF A CONTRIBUTING STRUCTURE, DEMOLITION OF A NON-CONTRIBUTING STRUCTURE, AND THE NEW CONSTRUCTION OF A THREE-STORY COMMERCIAL BUILDING, LOCATED AT APPROXIMATELY 5105-5125 BISCAYNE BOULEVARD, WITHIN THE MIAMI MODERN/ BISCAYNE BOULEVARD HISTORIC DISTRICT Upon being seconded by Mr. Hugh Ryan the motion passed and was adopted by a vote of 4-1. Mr. David Freedman Mr. Jonathan Gonzalez Dr. William E. Hopper, Jr Ms. Lynn B. Lewis Mr. Hugh Ryan Mr. Jordan Trachtenberg Mr. Todd Tragash No Absent Yes Yes Yes Yes Absent 2_1!7; 1! -e- Megan Schmi'.: Execution Date Preservation Officer STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) Personally appeared before me the undersigned authority, Megan SchmEt,, Preservation Officer of the City of Miami, Florida, and acknowledges that she executed the foregoing Resolution SWORN AND SUBSCRIBED BEFORE ME THIS ' DAY OF �. 2017 tVii i~r� 1?✓sP _ Print Notary Name Personally know \./ or Produced I D Type and number of I D produced Did take an oath ✓ or Did not take an oath ) Nolary Puvlic State of Florida My Commission Expires: EEBOP_ SILVIAGONZALEZ MY COMMISSION # GG 051561 E-XPRES: Ncvdmbar30, 2}20 itrjfiNNota. 7 7 r uj4 k L% d erwrrteM Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Miami Historic and Environmental Preservation Board Resolution: HEPB-R-17-016 EXHIBIT "A" 1. All glass shall be clear with the option of Low -L. 2. Applied brick shutters and the brick veneer covering the columns of the historic structure must remain. 3. The existing railings that line the staircases leading up from the courtyard and surrounding the second floor balconies of the historic structure must be salvaged and re -used. In areas where there is to be new railings, the design of the original historic building must be replicated. 4. The existing decorative concrete block garden wall in the historic structure must be retained. o. The original sign structure must be retained and use open face channel letters to depict the name, Bayside Motor Inn on the historic structure 6. Applicant to provide an interior or exterior shade treatment to prevent light spillage from the interior spaces into the adjacent residential nPighhrn•hnnd i. All lighting on the exterior of both structures the property and in the parking lot of both structures shall not be higher than 18'-0" in height and be warm in color. 8. This Certificate of Appropriateness is subject to approval by zoning, building. and all other required city departments. Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 City of Miami City Hall 3500 Pan American Drive Miami, FILE 33133 www.miamigov.com Tuesday, February 7, 2017 3:00 PM Regular Meeting Historic and Environmental Preservation Board In Re: HEPB Resolution 10, 5105-5125 Biscayne Boulevard William E. Hopper, Chair Lynn Lewis, Vice Chair David A. Freedman, Board Member Jonathan Gonzalez, Board Member Hugh Ryan, Board Member Jordan Trachtenberg, Board Member Todd Tragash, Board Member info@dlecourtreporters.com (786) 522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 1 * * * * * 2 THE SECRETARY: HEPB Item Number 10, a 3 resolution of the Miami Historic and 4 Environmental Preservation Boardapproving or 5 denying a Special Certificate of Appropriateness 6 for the renovation of a contributing structure, 7 demolition of a non-contributing structure, and 8 the new construction of a three-story commercial 9 building located at approximately 5105-5125 10 Biscayne Boulevard, within the Miami 11 Modern/Biscayne Boulevard Historic District. 12 CHAIRMAN HOPPER: Are the applicants present? 13 Please give your name and address for the Court. 14 MS. ESCARRA: Iris Escarra, joined by Carlos Diaz, 15 with offices at 333 SouLheasl. 2nd Avenue. 16 CHAIRMAN HOPPER: Okay. And we'll start with the 17 Staff report. 18 MS. LOGAN: This is a new application. The 19 property had previously applied for a Special 20 Certificate of Appropriateness, in 2014, for the 21 renovation of both structures, partial demolition 22 and the construction of a one-story wing on the 23 southwest corner of the contributing structure, 24 and the new addition between both structures to 25 replace the existing entrance. This plan was Page 2 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 approved by HEP Board Resolution 14-006. The subject property is a two-story contributing motel building, built in 1952, on the south end of the block, which is 5101 Biscayne Boulevard, and a two-story non-contributing motel structure on the north end of the block, which is 5125 North Biscayne Boulevard, with a one-story entrance lobby connecting these structures. The subject property located on Biscayne Boulevard between Northwest 51st Street and Northeast 52nd Street calls for the renovation of the contributing structure on the south side of the block, demolition of the non-contributing structure on the north side of the block, and the new construction of a three-story commercial building. The Preservation Office does not have an historic photo for this structure, and, therefore, cannot confirm whether or not certain features have been modified over time. In the property record card shown below, the layout of the property is in a courtyard formation and currently remains in this formation. Elevations show the replacement of all doors and windows. New doors will be a mixture of clear glass storefront doors, and windows will be a mixture of casement and fixed windows with muntin to imitate Page 3 info@dlecourtreporters.com (786) 522-0522 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 awning windows. Renovations will also include the removal of the existing in -wall air conditioning units and repairs to the exterior walls. The exterior walls will be painted white with a blue accent color for the trim. Elevations do not show the existing applied brick shutters or the brick veneer covering the columns; however, these elements must remain. The existing railings that line the staircases leading up from the courtyard and surrounding the second -floor balconies must be salvaged and reused. In areas where there is to be new railings, this design must be replicated. There is also a small portion of a decorative concrete block garden wall that also must be retained. Plans include the partial demolition of the contributing structure to remove the one-story wing located on the southwest corner of the historic structure. In the same location, a new one-story wing will be constructed with a curvilinear shape. This portion of the project proposal replicates the plans -- the plan that was presented to the HEP Board in 2014. The exterior wall of this new addition will be almost entirely covered in storefront glass and Page 4 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 will provide a new exterior staircase on the front of the structure that provides access to the second - floor outdoor dining terrace. The exterior staircase will be partially painted blue, the blue accent color, and will also contain a new shark fin sign to display the name of the hotel. Covering the outdoor dining terrace is a freestanding concrete canopy that will be planted with a golden creeper vine. Staff would recommend that the proposed addition more closely identify with the historic plan that is shown in the property record card and retain the square shape plan, rather than a curvilinear plan. Staff asks that the applicant retain the original sign structure and to use open base channel letters to depict the name, "Biscayne Motor Inn." As shown on the map within the designation report, the structure located at 5125 Biscayne Boulevard, on the northern corner of this project site, was determined to be non-contributing to the MiMo Historic District. The applicant is proposing to demolish the structure and the current one-story connection between both buildings, to construct a new three-story commercial building. Inspired by breeze block, the main focal point of Page 5 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 the new construction project will utilize an enlarged version of a brise-soleil, providing a modern take on a familiar MiMo pattern, to form the texture of the exterior stucco wall. The footprint of the structure is set in the same location as the existing; however, utilizes an undulating storefront design on the ground level, with the storefront door set at an angle to access the retail spaces. Above the ground floor, Lhe exLerior of the structure is primarily focused on the enlarged brise-soleil, with rectangular windows set beyond. The exterior form reaches outward and is painted white with a background of the glazing and gray stucco. Glazing on the exterior forms four rows of windows; however, the interior space accommodates two floors of commercial space. Overall height to the top of the roof level is 35 - feet, which is in line with the MiMo New Construction Guidelines. On the top of the structure, mechanical equipment and bulkheads are centered on the roof deck and screening is shown on the elevations, both blocking the view of the rooftop appurtenances from the street level and surrounding structures. On the rear of the structure, glazing is the Page 6 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 primary feature. Staff would recommend that the applicant provide an interior or exterior shade treatment to prevent light spillage from the interior spaces into the adjacent residential neighborhood. Acting as a connection between the historic structure and the new construction project, a new two-story glass and stucco structure is provided. This connector is set back from the main facade and will provide ADA access to the second floor of the historic building next door. Overall, Staff is supportive of this new construction proposal and believes that it successfully captures the requirements of the Secretary of the Interior's Standards for New Construction in an Historic District. For site improvements, new landscaping and paving is provided throughout the property. Plans show a variety of tree species that are to be planted in the MiMo-esque planters. Along the rear property line, an existing stucco wall will remain, along with many of the existing trees, and will be filled with a generous portion of additional landscaping. Spot and well -lighting is shown within the landscape plans, which allow for highlights to the built and natural features of the site. However, Page 7 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 plans did not show lighting for the parking lot. Any pole lights that are proposed for the site are limited to a height of 18 feet and must be warm in Underground parking will be installed under the new construction project, with access provided from an entrance off of Northeast 52nd Street, into the rear parking lot and a ramp that is located in the center of the project site. The Preservation Office recommends that the application for a Special COA for the renovation of the contributing structure, demolition of the non-contributing structure, and the new construction of a three-story commercial building be approved with the followinq conditions: one, all glass shall be clear with the option of Two, applied brick shutters and the brick veneer covering the columns must remain. Three, the existing railings that line the staircases leading up from the courtyard and surrounding the second -floor balconies must be salvaged and reused. In areas where there is to be new railings, this design must be replicated. Four, the existing decorative concrete block garden wall must be retained. ■..- info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 Five, provide a square-shaped plan for the new addition on the historic structure, rather than the curvilinear plan. Six, the original sign structure must be retained and use open face channel letters to depict the name, "Bayside Motor Inn." Seven, applicant to provide an interior or exterior shade treatment to prevent light spillage from the interior spaces into the adjacent residential neighborhood. Eight, all lighting on the exterior of the property and in the parking lot shall not be higher than 18 feet in height and must be warm in color. And nine, the Certificate of Appropriateness is subject to approval by Zoning, Building, and all other required City departments. CHAIRMAN HOPPER: And you would like to comment on the Staff report? MS. ESCARRA: Good evening, everyone. Again, Iris Escarra, with offices at 333 Southeast 2nd Avenue. We are supportive of the Staff report and accept the conditions as delineated by Trisha. On the record, I just wanted to highlight this project. We are proposing, on behalf of Avra Jain, who is developing the Bayside Motor site, as well as the adjacent site. One of the things that I wanted to highlight with regards to -- it's Page 9 info@dlecourtreporters.com (786)522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 1 pretty much almost half the site has the contributing 2 structure and half the site does not have a contributing 3 structure, which is why you see the two developments 4 being proposed. 5 With that, I would like to introduce our team. 6 J.J. Wood would be presenting for you on behalf of the 7 architects. With -- in compliance with the criteria of 8 the Historic Preservation Board, I'd like to reserve some 9 time at the end for rebuttal, as may be needed. Thank 10 you. 11 MR. WOOD: Good evening. My name is J.J. 12 Wood. I'm one of the principals at Urban Robot 13 Associates, with offices at 420 Lincoln Road, on 14 Miami Beach. 15 And if I could have access Lo Lhe screen, I have a 16 presentation here on the laptop. I don't know if 17 it's an automatic feature. 18 MS. LOGAN: We have to speak to IT. 19 MR. WOOD: Okay. Okay. Well, regardless, it's 20 basically -- there we go. It's the same. It's the same 21 application that you have in front of you. We did bring 22 -- some of the boards that we brought actually already 23 incorporate Trisha's comments. So, the rendering on this 24 board already shows the squared, in plan, the squared off 25 feature. That's right, in plan, and also in the Page 10 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 rendering, as well, show the squared off feature. So, the packages that you have, have the renderings that show the curvilinear option, which we were basically incorporating because it was a previously approved project from 2014, that already came before the Board. So, we're really excited for this opportunity to design something on Biscayne Boulevard. One of the things that we took into account and really started from was paying attention to the fact that the history of Biscayne Boulevard has, especially in these motels, which this project is, the Bayside Motor Inn, these motor inns kind of have this concern with grabbing drivers off the road and the building becomes this form of signage, and the building kind of -- the signage becomes very important. So, we did some extensive documentation of what was going on, on Biscayne Boulevard. We're also very excited to work with some of the new formalism aspects of the architectural language that are expressly in MiMo District. In particular, you can see in the inspiration images that we were particularly drawn to the folded plate, which functions as sort of an eyebrow, and as well as an opportunity to kind of bring some interest. SO, there are several examples of Page 11 info@dlecourtreporters.com (786)522-0522 PA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 P&IM 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 buildings that are -- that have that as an expression. That was, ultimately -- that, in combination with architecture sort of tried to passively integrate for cooling purposes and shading purposes, in a tropical modern setting, were really the sources of inspiration for how we ultimately derived the form, which you can see on the north is basically a combination of folded plate and a scaled -up version of brise-soleil on this sort of offset hexagonal pattern. Some of the precedence that we were looking at on Biscayne Boulevard, as well as some of the other fantastic buildings that are in the area. So, the idea was not, especially on the north, was not to necessarily replicate MiMo, but to draw inspiraLion from iL, so iL is something that is contemporary, it is something that is of its time and place, just as the historical buildings are of their time and place. Again, analysis of the signage that happens along Biscayne Boulevard, and the plans -- again, this plan is superseded by the -- by the actual square plan that Staff recommended. All the existing curb cuts are going to be maintained and kept as is. So, the circulation of the site incorporates parking that goes in an underground facility. There's 37 Page 12 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 parking spaces underground, and, then, there's 17 parking spaces on the site. So, in total, we feel that we have addressed all the parking concerns for the neighborhood. There is, essentially -- I just want to go back lides. The ground floor is a retail component and it envelope of the north -- of even the building of the north that was non-contributing. We did make reference to the fact that there was a stepping sort of saw tooth in the facade and we kind of decided that, rather than just replicate that, we would sort of draw inspiration so that there was, in the new proposal, there is something of the memory of what was there before. And then, there's two stories of office in the new structure. On the historic side, we're basically keeping everything as much as possible. We are renovating, we're going to replace the windows with historically significant -- obviously, we have to bring everything up to code, so we're going to bring new windows in, but they are going to have the same pattern, mullioned pattern is what there would be historically. We have no issues with keeping the materials that Trisha recommended in the Staff report, as well. That's Page 13 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 all fine. Elevations. And then, this is kind of a nice symmetric view of how the building actually functions with the underground parking, the sort of stepped retail, and the facade treatment that we feel is very important. There is an expression of some of the accent colors and the palette that we used based on the MiMo Design Guidelines of the color palettes that were acceptable. And then, the renderings. This is a view from the north, of the north, which is a contemporary structure; and, then, of course, the historic view of -- this is actually what you have in your packets, but it shows the curvilinear footprint and that is to be superseded by the square plan. And we are here for airy quer l.iuns . CHAIRMAN HOPPER: Okay. MS. ESCARRA: I just wanted to add a few points on the record with regards to compliance. The building is compliant with the 35 -feet height limitation, the three -stories. We have not asked for any of the waivers that is typical because the project is fully compliant. It is an adaptive reuse of the existing structure on the historic side and a fully compliant building on the north. CHAIRMAN HOPPER: Thank you. Is there anyone from Page 14 info@dlecourtreporters.com (786) 522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 1 the public wishing to speak on this item? Please come 2 forward to the microphone and give your name and 3 address for the record. 4 DEBBY STANDER: My name is Debby Stander. I 5 live at 830 Northeast 74th Street. And I am also 6 President of the MiMo Biscayne Association, newly 7 elected. 8 I submitted to the HEP Board Staff yesterday an 9 email which reflected -- that's right -- comments 10 which were collected from MiMo Board Members, 11 principally, one of our architects, one of our urban 12 planners, my own comments, the comments of our former 13 MiMo president, who is no longer president, Nancy Liebman, 14 but she is, I think, a very respected historic 15 preservationist, and there has been some question as to 16 whether I followed proper protocol and procedure in 17 submitting the -- our comments to the HEP Board, and, 18 certainly, I would like -- that's why I want to clarify 19 exactly who commented. 20 The developer did not choose to present the 21 project to the full Board. We haven't had a regular 22 meeting since December. We have had elections. 23 We haven't even had our first Board Meeting. New 24 committees have not yet been established. And I 25 only really became aware of this project last Page 15 info@dlecourtreporters.com (786) 522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/201'/ 1 week, so I sort of scrambled to collect comments 2 from Board Members who are normally involved in 3 commenting on the projects because they are 4 architects and urban planners. So, I wanted to 5 clarify that the entire Board did not review or see 6 this project. Again, the developer, herself, did not 7 run it by the entire Board. 8 Our main concern is really primarily questioning, 9 and there was no demolition report available in 10 the agenda package, so we were basically left to 11 question whether or not the demolition was 12 unavoidable. And from what I have -- my 13 understanding of Secretary of the Interior 14 Guidelines and local HEP Board Guidelines, is 15 that, wherever possible, in terms of historic 16 preservation, it's a basic tenet that demolition 17 should be avoided as a last resort. 18 And the building that constitutes the north 19 building that is slated for demolition was built in 20 1947. It is almost the identical twin to the building 21 located immediately south of the Bayside Inn, on the 22 Boulevard, 5061, which is designated as historic. If 23 you -- I submitted some photographs of 5061. It's 24 practically the twin and they were both built in 25 the same year. Page 16 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 So, it seems to me that the fact that the north wing was not designated as contributing could have simply been some kind of an oversight. It -- it does not -- anyway. That aside, so there is, I believe, a legitimate concern as to whether that north wing should be demolished and whether demolition of that north wing is really the best solution for the historic rehabilitation of the Bayside Motor Inn. Should that demolition be judged to be unavoidable, we also submitted some other comments and I think they are self-explanatory. In the -- in the memo, we are concerned that the mass of the new addition sort of practically dwarfs the original historic structure. It's a very disparate design. We understand that that's, you know, obviously, that's, you know -- we've been to the Louvre, but we don't -- we don't really see enough of a connection and we feel that it overpowers the original historic structure in terms of mass and the sort of uniformity of the design. And again, my apologies to the developer, but she also did not run this project by the MiMo Board. If there was a breach of protocol, it was inadvertent simply because, right now, we're -- our Board is just getting -- new Board is getting up and running. Page 17 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 And, obviously, we will abide by the judgment and the determination of the HEP Board Staff. Thank ffiam CHAIRMAN HOPPER: Thank you. Anyone else from the public wishing to speak on this item? Okay, proceed. ALISA CEPEDA: Good evening. As you know, from the last project, I'm a resident in the area. CHAIRMAN HOPPER: Please give your name and address, for -- ALISA CEPEDA: Again? CHAIRMAN HOPPER: Again, yeah. ALISA CEPEDA: Alisa Cepeda, 531 Northeast 76th Street, Miami, Florida 33138. CHAIRMAN HOPPER: Thanks. ALISA CEPEDA: As you know, from Lhe last project, I'm a resident of the Upper East Side. The developer is my neighbor and also a developer of many of the other properties within the MiMo Historic District, and, unfortunately, with some of these buildings, they have been very neglected, they are in very bad shape. Avra has done a wonderful job in coming in and taking care and fixing a lot of these buildings. The project that she completed last year, just to the north of this, where the new Starbucks is, also had conditions where part of the structure had to be Page 18 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 demolished, and she did a fabulous job protecting and reusing things. She has been entrusted with some of the kind of most important buildings in the City of Miami that I feel are very historic, and she has always done a fabulous job. She has taken into consideration a lot of our concerns that were mentioned. We have a horrible parking problem in the Upper East Side. She has taken this into consideration, at her cost, with providing underground parking, and I'm hoping, you know, as she has done in the past, that this will turn out to be a very good project. Thank you. CHAIRMAN HOPPER: Thank you. Anyone else from the public wishing to speak on this item? Seeing no one, I will close the public hearing and open up to the Board for questions. MR. FREEDMAN: Mr. Chair, I have a question for the architect, if I may? CHAIRMAN HOPPER: Yes, sir. MR. FREEDMAN: Sir, in regard to the south building, the historic motel, and I'm looking at sheet A09, the three-story building, right? MR. WOOD: Mm-hmm. MR. FREEDMAN: With the underground basement. MR. WOOD: The north building or the south Page 19 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/201'/ building? The south is only two-story. That's the historic structure with the courtyard. MR. FREEDMAN: Oh, okay. So, looking at A09, how many motel rooms are on the -- that's the ground floor. How many motel rooms are on the ground floor? MR. WOOD: On the ground floor, there are none. MR. FREEDMAN: Are those three different restaurants on the ground floor? MR. WOOD: I'm sorry? MR. FREEDMAN: Are those three different restaurants proposed for the ground floor? MR. WOOD: No, they are all the same. MR. FREEDMAN: The same. And then, A10 is the basement level and All is the second floor. And how many rt[oLel rooms? MR. WOOD: There is, I believe, three. MR. FREEDMAN: So, you've got -- and these three restaurants shown on All, are those the same as the ones below, or different? MR. WOOD: Correct, same restaurant. MR. FREEDMAN: Same. So, you've got three restaurants and three motel rooms? MR. WOOD: No; one restaurant. MR. FREEDMAN: One restaurant, all right, in three different locations. Paqe 20 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 MR. WOOD: With different -- correct. MR. FREEDMAN: Let me ask -- thank you. A question for Staff. This was before us two years ago, and, at that time, there were to be some modifications to the south building, nothing said about demolishing the north building. What is it, if anything has changed, why is Staff supporting the demolition of the north building? MS. LOGAN: Well, when we had the proposal in front of us, we had -- I mean, I don't know if anything has changed, per se. I wasn't here, at that time, in 2014, when the proposal came forward. We do have it on record that it's a non- contributing building, so that, of course, plays a factor. Our stance on that is we would like to see things kept, if possible, but, also, with understanding current conditions, and, particularly, current conditions of those -- of the non-contributing structures, and entertaining ideas of what could be replaced and in lieu of that non-contributing structure. So, when it's presented to Staff as a HEP Board application, we take it forward. We decided, as Staff, not to comment on -- on whether or not the demolition should take place. Page 21 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/'//2017 MR. FREEDMAN: Is there anythinq about the north building that indicates that it's falling down or otherwise dangerous? MS. ESCARRA: If I may, Avra can respond to that, to the damage that existed within the building. MR. FREEDMAN: I -- I'm -- MS. LOGAN: I haven't accessed the building, so I can't tell you specifics. I mean, I think that both buildings have been vacant for a number of years. There is apparent exterior wear on both. We are always very pleased when a contributing structure is brought back and is restored; and, so, keepinq in mind that we have both a contributing and a nun-cunLrlbuting building on this site, it's -- we like to work with applicants to make that compromise to entertain the idea of demolition of a non-contributing structure and the new construction. CHAIRMAN HOPPER: Hang on to that point. MS. LOGAN: Yes. CHAIRMAN HOPPER: You have an exhibit -- I'm sorry, a map in the presentation of the contributing and non-contributing buildings in the District? MS. LOGAN: Yes. Paqe 22 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 CHAIRMAN HOPPER: And according to my reading of this map, it says the whole thing is contributing. MR. FREEDMAN: Yeah, it's all gray. MS. LOGAN: On the northern parcel, it's not -- it doesn't -- CHAIRMAN HOPPER: Not according to the map. MS. LOGAN: I'm not sure -- what I'm looking at and what I've looked at is that the northern parcel was not -- did not have a hatch over it, which indicated the contributing portion. CHAIRMAN HOPPER: I'm looking at the map, the map in the applicant's application. MS. LOGAN: In the application. CHAIRMAN HOPPER: Which would be right after Exhibit A, or I guess would be Exhibit A. No, I'm sorry, it's labeled Exhibit B, City of Miami MiMo Historic District. MS. LOGAN: Oh, I see. Yes, that is not the correct map, but the map that I show in my Staff report is the one that is actually part of the designation report that was voted on. I don't have the whole history of this particular parcel on -hand, but, at the time of designation, it does, within the designation report, show an asterisk next to the structure where there was a Page 23 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1b 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 previous development permit pulled that was carried through. I don't know if, at the time of designation, that was an influencer on that northern parcel as to it being called out as non-contributing. Avra may have some additional background information on that. She has inherited this building. But -- but that has played a part in the past several years. MR. RYAN: I was looking at this and there was no hi5Loric phuLu on Lhe front. I was trying to get a grip on what building we were talking about, because demolition is a pretty serious deal, and I know the Boulevard pretty well, not as well as the Chairman, probably, but the pictures you guys gave, one through six, are really, really bad. It's just hard to figure out. And then, I figured out which one it was. It was the one with the roof going over the driveway in the front, correct? Because you can't see it. What is existing is what we're looking at, at this board, right now. If we're coming up with a demolition request, it would be nice to see what is being proposed for demolition. And, when I figured it out, it looks from these -- one, two, three, four, five, six, on key plan, or what page is this? The one after the survey. Page 24 info@dlecourtreporters.com (786) 522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 1 MR. FREEDMAN: A03. 2 MR. RYAN: Oh, A03, all right. I can -- I 3 know -- I now recognize which one it is, and it's 4 the one with kind of the asphalt shingle cover 5 over the driveway in the front, and -- because 6 then -- the Bayside Inn. 7 So, then, looking at the map next to it, the 8 survey on the previous page, essentially, what you're 9 talking about, and this would go to the architect, is 10 that boomerang on the southern part is the Bayside Inn, 11 the original structure. 12 MR. WOOD: Correct. 13 MR. RYAN: Then, the -- kind of the -- it 14 looks like a C, looking at it this way, the 15 horseshoe, whatever, on the north end of the 16 block, was a separate -- 17 MR. WOOD: Structure. 18 MR. RYAN: -- structure, and it looks connected in 19 between. Is that correct? 20 MR. WOOD: No. There -- 21 MR. RYAN: Is it just pavement? 22 MR. WOOD: That's just the -- they're just built 23 right up against each other. 24 MR. RYAN: Okay. I mean, I'm just offering 25 constructive criticism because I'm here a lot, I've Page 25 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 been here a long time. You've got much more street in these pictures than you do structures. One through six, I'm looking at asphalt on Biscayne Boulevard. I kind of need to see the building that is being proposed for demolition, so -- but I understand which one, or which one you're talking about. MS. ESCARRA: If I may, Chair, I would like to clarify some of the points, to the extent the Board would entertain my clarifications and rebuLLal. CHAIRMAN HOPPER: Okay. MS. ESCARRA: One of the things I circulated to everyone, I put two sheets from the 2006 Adopted MiMo District Historic Report. In that report, it reflects the site of 5101 only being designated, as well as the attached map, which was a black -and -white map attached to the original designation report, which only highlights 5101 as being the designated contributing building, where 5125 was not. They were built at different points in time, and, actually, 5125 was built first, and then 5101 was built secondly. Only 5101 was designated and deemed contributing the previous HEP Board. So, I wanted to just highlight that point. Secondly -- THE SECRETARY: Excuse me. I'm sorry for the Page 26 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public. Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 interruption. Whatever you distributed to the Board, we need one for the record. MS. ESCARRA: Will do. Sorry, Ray. Secondly, I wanted to highlight the difference between the height of the two structures. The existing is 20 and the proposed is 35. At this time, I would like to call Ms. Avra Jain to address some of the questions regarding the conditions of the building and the vision for the site. MS. JAIN: Hello. My name is Avra Jain. I live at 720 Northeast 69th Street, Miami. Yeah, the history on -- on the north structure, so people understand, there was a lot of fire damage in the building. When I inherited the building, there had been a lot of water damage, and, as a result, a lot of termite damage. So, the north building is not in good condition. I'm sure it, you know, partially -- the previous owners obviously neglected the building. Having gone through this with the Noxon (phonetic) structure next to Vagabond, I went to renovate the existing building. I pulled out one stick and the whole thing came down. So, I have had to come back and rebuild that building, which is why it has taken me so long to do the motel next to Vagabond. Page 27 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 So, I can tell you, without a doubt, I went in and the building is not worth saving. It would require a rebuild look-alike in the condition that it is. So, you know, I think there was a reason why it was made non-contributing back when it was made non-contributing. So, you know, what I can -- maybe because it wasn't interesting, maybe they recognized the condition of the building, but that's what I have. I think that, you know, having been involved in MiMo, I thought this was an opportunity to actually create some of the things that people have asked for, which is, you know, I mean, I -- not to put back a single -story or double -height retail box that looks like one of the other strip malls. I've been -- you know, to not -- to not come in for a parking waiver. We've, I think, put -- done a very ambitious project within the constraints of the MiMo standards. As far as, you know, I mean, with all due respect, with Deborah, she is new to the Board. You know, myself and other people have been on the Board for a long time. We submitted the package. Again, remember, this was a project that had been previously approved on the south side. So, the only thing in question was really the north building. Page 28 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 And I think, when nobody got back to me, I had let the Board Members know this was coming out. When nobody -- nobody called me, nobody reached out, I assumed they were as excited about the project as I was, because it did speak to all the things that MiMo has been asking and speaking about internally. I think that, as we know, historic preservation asks that, when we build new buildings, that we do something contrasting, so that juxtaposition highlights and spotlights the, you know, the historic structures. So, and I think that I was really pleased. You know, we brought in a fresh architect to the area. I was very -- really pleased to see what Urban Robot had proposed. I mean, this is an, not that it should matter, it's a very expensive building to build and I think it shows a lot of faith, on behalf of the partnership, that the neighborhood is ready for this. I know this is a gateway piece into the neighborhood. I thank -- and I thank Alisa for pointing out that, obviously, I wouldn't do anything that I didn't think was to the benefit of MiMo. I do recognize that everybody is entitled to their opinions and I think the design, certainly, could -- there's a lot of comments that could be made. I, personally, am thrilled with what was presented. I'm Page 29 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 wearing my honeycomb jacket. Just so you know, I owned the jacket before the building was designed. So, I think that these guys did a fabulous job and I'm excited that something new is going to happen there. As for the history of the site, just so you -- in case some of you guys don't know, originally, there was going to be an eight or ten -story -- 87 -story building on this site. When I bought this -- when I bought this property, that permit was in place and issued by the City and Morningside was in litigation to try to stop that building. When I bought the building, I turned in the permit and I have done something in context. And, in that situation, Llie whole Lhing would have been knocked down. So, I think I've, you know, as a developer, I think I've been thoughtful and -- and I'm looking for everybody's support. Thank you. CHAIRMAN HOPPER: I just have a couple of things to say about that. One is I'm very appreciative that it's not as tall as it was in the beginning. Number two, I'm actually surprised to see what was the historic building, because that was never Page 30 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 really clear since I've been there the last 30 -or so years. And so, that's very interesting and exciting. With respect to the other building, I was just reflecting that probably the reason why the north building was not categorized as being contributing, why it was called non-contributing was because of the additions that had been put on it, and I think that was a characterization -- or a practice that had happened in the past. I don't know why I'm telling you this, since you're going to be leaving, and your colleagues have already gone, but, to my colleagues who are still here, maybe that is something we can look at in the future, in terms of recategorizing as we look at some -- at our historic districts, as we did in Buena Vista. Just because something has had something added onto it doesn't mean that it can't be taken off and made contributing. Nevertheless, this is non-contributing as it is •iTOMW And, you know, I think it looks good. VICE CHAIR LEWIS: Mr. Chairman? CHAIRMAN HOPPER: Yes, Ms. Lewis? VICE CHAIR LEWIS: Question for, perhaps, the architect. What is the square footage of the existing Page 31 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12. 13 14 "15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 northerly building and can you ballpark lot coverage of the existing, and then do the same -- and then, I think I know, from some of your -- from your zoning legend that the new construction is 18,994 square feet, right? MR. WOOD: Yes. VICE CHAIR LEWIS: Okay. So, compare, it you will, please, the existing structure's square footage and lot coverage. MR. WOOD: So, Lhe loL coverage in Lhe 2014 HEPB approval was -- VICE CHAIR LEWIS: No, no, I'm sorry, I'm sorry. The building that is there now, that is being requested to be demolished. MR. WOOD: It's 9,406 square feet, is the number that I have. VICE CHAIR LEWIS: Okay. MR. WOOD: So, that represents 31.9 percent, so 32 percent. VICE CHAIR LEWIS: 32 percent lot coverage. MR. WOOD: So, the proposed, we have it listed at 13,295.58, so it's 47 percent. VICE CHAIR LEWIS: Okay. Existing is 32 percent and you're proposing to go to what? MR. WOOD: 47. VICE CHAIR LEWIS: Okay, thank you. Page 32 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 CHAIRMAN HOPPER: Any other questions? Well, then, is someone ready for a motion? VICE CHAIR LEWIS: Yeah, I'll make a motion. CHAIRMAN HOPPER: Okay. VICE CHAIR LEWIS: I think the -- I'll get to the motion in a minute. CHAIRMAN HOPPER: Okay. VICE CHAIR LEWIS: I think the historic preservation is great and I like the design of the new. Okay. So, I would like to move the issuance of a Certificate of Appropriateness for various things -- I've got to get my cheat sheets -- for renovation of a contributing structure, demolition of a non-contributing structure, and construction of a new three-story commercial building at property the address of which is 5101 and 5125 Biscayne Boulevard, in the Historic MiMo District, on nine conditions: All glass shall be clear with the option of Low -E. The applied brick shutters and the brick veneer covering the columns of the historic structure must remain. The existing railings that line the staircase leading up from the courtyard and surrounding the second -floor balconies of the historic structure must be salvaged and reused. In areas where there can't be salvaged and reuse Page 33 info@dlecourtreporters.com (786) 522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 1 and there is to be new railings in the historic building, 2 the design of the original historic must be replicated. 3 Number four, the existing decorative concrete 4 block garden wall in the historic structure must be retained. 5 You have already provided a square-shaped plan for 6 the new addition on the historic structure, so 7 that's not a condition, but, to be clear, what we 8 would be -- what I am moving that we would approve 9 are the plans that you are showing us tonight, as 10 opposed to the plans that are in our package. 11 MS. ESCARRA: Correct; which satisfy that 12 condition. 13 VICE CHAIR LEWIS: Which, yes, correct, 14 which is -- yeah, again, we're talking about the 15 historic structure. 16 So, number five, the original sign structure must 17 be retained and use open face channel letters to depict the 18 name, "Bayside Motor Inn," on the historic structure. 19 Number six, the applicant shall provide an 20 interior or exterior shade treatment to provide light 21 spillage from the interior spaces into the 22 adjacent residential neighborhood, and that ought 23 to be apply to both structures. 24 MS. ESCARRA: Correct. 25 VICE CHAIR LEWIS: Number seven, all Page 34 info@dlecourtreporters.com (786)522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 lighting on the exterior of both structures and in the parking lot of both structures shall not be higher than 18 feet in height and must be warm in color, to the satisfaction of the Historic Preservation Officer what "warm" means. And number eight, the Certificate of Appropriateness is subject to approval by Zoning, Building, and all other required City departments. CHAIRMAN HOPPER: Is there a second? MR. RYAN: Second. CHAIRMAN HOPPER: Mr. Ryan has seconded. Any discussion on the motion? MR. RYAN: Yeah, I'd just like to say I think the design is great. I think it's one of the examples that we don't get all that often to replace a non- contributing structure with a new structure that actually enhances the District. So, I look at it and I'm -- you know, I just love the creative but historic, you know, which is always the right mix. Try not to repeat, but do something that you haven't seen, but it enhances the whole Boulevard. So, I can't wait to see it. MR. FREEDMAN: I regret to see the loss of one of the motels and the proposed replacement strikes me as being out of scale for the street. It seems very Page 35 info@dlecourtreporters.com (786) 522-0522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 "1 b 16 17 18 19 20 21 22 23 24 25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 massive to me, and I really -- it doesn't speak to me, at all, as to any historic context. I see it just the opposite of how you see it. CHAIRMAN HOPPER: And I would just like to say I thank you for finding a good color other than gray, and I would -- I was wondering if you had reached out to the Morningside Civic Association, since that's an adjoining historic district. MS. ESCARRA: RighL. Avra had Spoken Lo LhaL earlier in her presentation, which she had discussed with some of the Board Members, but they hadn't taken up the item because there had been some transition and some non -meetings. She was kind of waiting for them to advise her and we were already scheduled here. CHAIRMAN HOPPER: Okay. Just a question. Can we have roll call, please? THE SECRETARY: Vote roll call for HEPB Item Number 10. Vice Chair Lynn Lewis? VICE CHAIR LEWIS: Yes. THE SECRETARY: Member Hugh Ryan? MR. RYAN: Yes. THE SECRETARY: Member David Freedman. MR. FREEDMAN: No. THE SECRETARY: Member Jordan Trachtenberg? Page 36 info@dlecourtreporters.com (786) 522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 MR. TRACHTENBERG: Yes. THE SECRETARY: Chair William Hopper? CHAIRMAN HOPPER: Yes. THE SECRETARY: Motion passes, as amended, by a vote of four to one. This decision is final, unless appealed to the Planning and Zoning Department within 15 days. Page 37 info@dlecourtreporters.com (786)522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Historic and Enviromental Preservation Board 2/7/2017 TRANSCRIBER'S CERTIFICATE STATE OF FLORIDA: COUNTY OF BROWARD: I, Nancy E. Krakower, certify that I was authorized to and did transcribe the foregoing video -recorded proceedings taken on February 7, 2017, and the transcript is a true and accurate transcription of said recording. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Signed this 1st day of May 2017. Nancy E. Krakower Page 38 info@dlecourtreporters.com (786)522-0522 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 A A03 25:1,2 A09 19:22 20:3 A10 20:13 All 20:14,18 abide 18:1 accent 4:5 5:5 14:6 accept 9:20 acceptable 14:8 access 5:2 6:8 7:9 8:6 10:15 accessed 22:8 accommodates 6:15 account 11:9 accurate 38:7 Acting 7:5 action 38:12,13 actual 12:21 ADA 7:9 adaptive 14:22 add 14:17 added 31:17 addition 2:24 4:24 5:10 9:2 17:13 34:6 additional 7:21 24:5 additions 31:7 address 2:13 15:3 18:9 27:8 33:16 addressed 13:3 adjacent 7:4 9:8,24 34:22 adjoining 36:7 Adopted 26:12 advise 36:14 agenda 16:10 ago 21:4 air 4:2 Alisa 18:6,10,12,12,15 29:19 allow 7:24 ambitious 28:17 amended 37:4 American 1:2 analysis 12:19 angle 6:8 anyway 17:4 apologies 17:21 apparent 22:11 appealed 37:6 applicant 5:13,21 7:2 9:6 34:19 applicant's 23:12 applicants 2:12 22:16 application 2:18 8:10 10:21 21:23 23:12,13 applied 2:19 4:6 8:17 33:20 apply 34:23 appreciative 30:22 Appropriateness 2:5,20 9:13 33:12 35:7 approval 9:14 32:10 35:7 approve 34:8 approved 3:1 8:13 11:5 28:23 approximately 2:9 appurtenances 6:23 architect 19:18 25:9 29:12 31:25 architects 10:7 15:11 16:4 architectural 11:20 architecture 12:4 area 12:12 18:7 29:12 areas 4:12 8:22 33:25 aside 17:4 asked 14:20 28:12 asking 29:6 asks 5:13 29:8 aspects 11:20 asphalt 25:4 26:3 Associates 10:13 Association 15:6 36:7 assumed 29:4 asterisk 23:25 attached 26:15,15 attention 1 l :10 attorney 38:10,11 authorized 38:5 automatic 10:17 available 16:9 Avenue 2:15 9:19 avoided 16:17 Avra 9:23 18:20 22:4 24:4 27:7,10 36:9 aware 15:25 awning 4:1 fl B 23:16 back 7:8 13:5 22:13 27:23 28:5,13 29:1 background 6:13 24:5 bad 18:20 24:14 balconies 4:11 8:21 33:24 ballpark 32:1 base 5:15 based 14:7 basement 19:24 20:14 basic 16:16 basically 10:20 11:4 12:8 13:17 16:10 Bayside 9:5,23 11:12 16:21 17:9 25:6,10 34:18 Beach 10:14 beginning 30:23 behalf 9:23 10:6 29:16 believe 17:5 20:16 believes 7:12 benefit 29:21 best 17:7 beyond 6:11 Biscayne 1:9 2:10 3:4,6 3:9 5:15,18 11:8,11,17 12:11,20 15:6 26:3 33:17 black -and -white 26:15 block 3:4,6,12,14 4:14 5:25 8:25 12:3 25:16 Page 1 info@dlecourtreporters.com (786) 522-0522 34:4 blocking 6:22 blue 4:4 5:4,4 board 1:8,11,12,12,13 1:13 3:1 4:23 10:8,24 11:6 15:8,10,17,21,23 16:2,5,7,14 17:22,24 17:25 18:2 19:15 21:22 24:19 26:8,22 27:1 28:20,21 29:2 36:11 Boardapproving 2:4 boards 10:22 boomerang 25:10 bought 30:9,10,13 Boulevard 1:9 2:10,11 3:4,7,9 5:18 11:8,11 11:18 12:11,20 16:22 24:12 26:3 33:17 35:21 box 28:14 breach 17:23 breeze 5:25 12:3 brick 4:6,7 8:17,17 33:20,20 bring 10:21 11:24 13:20 13:21 brise-soleil 6:2,11 12:3 12:9 brought 10:22 22:13 29:12 BROWARD 38:3 Buena 31:16 build 29:8,15 building 2:9 3:3,15 5:24 7:10 8:13 9:14 11:14 11:15 13:8 14:2,18,23 16:18,19,20 19:21,22 19:25 20:1 21:5,6,8,14 22:2,6,8,15 24:6,10 26:4,18 27:9,14,14,16 27:19,22,24 28:2,9,25 29:15 30:2,9,12,13,25 31:3,5 32:1,12 33:16 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 34:1 35:8 buildings 5:23 12:1,12 12:17 18:19,22 19:3 22:10,23 29:8 built 3:3 7:25 16:19,24 25:22 26:19,20,20 bulkheads 6:20 C C 25:14 call 27:7 36:16,17 called 24:4 29:3 31:6 calls 3:11 canopy 5:8 captures 7:12 card 3:19 5:12 care 18:21 Carlos 2:14 carried 24:1 case 30:7 casement 3:25 categorized 31:5 center 8:8 centered 6:20 Cepeda 18:6,10,12,12 18:15 certain 3:18 certainly 15:18 29:23 Certificate 2:5,20 9:13 33:12 35:6 38:1 certify 38:4,9 Chair 1:10,11 19:17 26:7 31:22,24 32:6,11 32:16,19,22,25 33:3,5 33:8 34:13,25 36:19 36:20 37:2 Chairman 2:12,16 9:16 14:16,25 18:4,8,11,14 19:13,19 22:19,21 23:1,6,11,14 24:12 26:10 30:20 31:22,23 33:1,4,7 35:9,11 36:4 36:15 37:3 changed 21:7,11 channel 5:15 9:4 34:17 characterization 31:8 cheat 33:13 choose 15:20 circulated 26:11 circulation 12:24 City 1:1,2 9:15 19:3 23:16 30:11 35:8 Civic 36:7 clarifications 26:9 clarify 15:18 16:5 26:8 clear 3:23 8:15 31:1 33:19 34:7 close 19:15 closely 5:10 COA 8:10 code 13:21 colleagues 31:11,12 collect 16:1 collected 15:10 color 4:5 5:5 8:4 9:12 14:8 35:4 36:5 colors 14:7 columns 4:7 8:18 33:21 combination 12:2,8 come 15:1 27:23 28:16 coming 18:21 24:20 29:2 comment 9:16 21:24 commented 15:19 commenting 16:3 comments 10:23 15:9 15:12,12,17 16:1 17:11 29:24 commercial 2:8 3:15 5:24 6:16 8:13 33:16 committees 15:24 compare 32:6 completed 18:23 compliance 10:7 14:18 compliant 14:19,21,23 component 13:6 compromise 22:16 concern 11:13 16:8 17:5 concerned 17:12 concerns 13:3 19:7 concrete 4:14 5:8 8:25 34:3 condition 27:17 28:3,8 34:7,12 conditioning 4:2 conditions 8:14 9:21 18:25 21:18,18 27:8 33:18 confirm 3:18 connected 25:18 38:11 connecting 3:7 connection 5:23 7:5 17:17 connector 7:8 consideration 19:6,9 constitutes 16:18 constraints 28:17 construct 5:23 constructed 4:21 construction 2:8,22 3:15 6:1,19 7:6,11,14 8:6,12 22:18 32:4 33:15 constructive 25:25 contain 5:5 contemporary 12:16 14:10 context 30:14 36:2 contrasting 29:9 contributing 2:6,23 3:2 3:11 4:17 8:11 10:1,2 17:2 21:14 22:12,14 22:23 23:2,10 26:17 26:22 31:6,18 33:14 35:16 cooling 12:5 corner 2:23 4:18 5:19 correct 20:20 21:1 23:19 24:18 25:12,19 34:11,13,24 cost 19:9 counsel 38:10,11 Page 2 info@dlecourtreporters.com (786) 522-0522 COUNTY 38:3 couple 30:20 course 14:11 21:14 Court 2:13 courtyard 3:20 4:10 8:20 20:2 33:23 cover 25:4 coverage 32:1,8,9,19 covered 4:25 covering 4:7 5:7 8:18 33:21 create 28:11 creative 35:18 creeper 5:9 criteria 10:7 criticism 25:25 curb 12:22 current 5:22 21:18,18 currently 3:21 curvilinear 4:21 5:13 9:3 11:3 14:13 cuts 12:22 D damage 22:5 27:13,15 27:16 dangerous 22:3 David 1:11 36:23 day 38:14 days 37:7 deal 24:11 Debby 15:4,4 Deborah 28:20 December 15:22 decided 13:11 21:23 decision 37:5 deck 6:21 decorative 4:14 8:24 34:3 deemed 26:21 delineated 9:21 demolish 5:22 demolished 17:6 19:1 32:13 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 demolishing 21:6 demolition 2:7,21 3:13 4:16 8:11 16:9,11,16 16:19 17:7,9 21:8,25 22:17 24:11,20,22 26:5 33:14 denying 2:5 Department 37:7 departments 9:15 35:8 depict 5:15 9:4 34:17 derived 12:7 design 4:13 6:7 8:23 11:8 14:7 17:14,20 29:23 33:9 34:2 35:14 designated 16:22 17:2 26:14,17,21 designation 5:17 23:21 23:23,24 24:2 26:16 designed 30:2 determination 18:2 determined 5:20 developer 15:20 16:6 17:21 18:16,17 30:17 developing 9:23 development 24:1 developments 10:3 Diaz 2:14 difference 27:4 different 20:7,10,19,25 21:1 26:19 dining 5:3,7 discussed 3 6: 10 discussion 35:12 disparate 17:14 display 5:6 distributed 27:1 district 2:11 5:21 7:14 11:21 18:18 22:24 23:17 26:13 33:18 35:17 36:8 districts 31:15 documentation 11:17 door 6:8 7:10 doors 3:22,23,24 double -height 28:13 doubt 28:1 draw 12:14 13:12 drawn 11:23 Drive 1:2 drivers 11:14 driveway 24:17 25:5 due 28:19 dwarfs 17:13 E E 1:10 38:4,19 earlier 36:10 East] 8:16 19:8 eight 9:10 30:8 35:6 elected 15:7 elections 15:22 elements 4:8 elevations 3:22 4:6 6:21 14:1 email 15:9 employee 38:10 enhances 35:17,21 enlarged 6:2,10 entertain 22:17 26:9 entertaining 21:20 entire 16:5,7 entirely 4:25 entitled 29:22 entrance 2:25 3:7 8:7 entrusted 19:2 envelope 13:8 Environmental 1:8 2:4 equipment 6:20 Escarra 2:14,14 9:18,19 14:17 22:4 26:7,11 27:3 34:11,24 36:9 especially 11:11 12:13 essentially 13:5 25:8 established 15:24 evening 9:18 10:11 18:6 everybody 29:22 everybody's 30:18 exactly 15:19 examples 11:25 35:14 excited 11:7,19 29:4 30:4 exciting 31:2 Excuse 26:25 exhibit 22:21 23:15,15 23:16 existed 22:5 existing 2:25 4:2,6,9 6:6 7:19,20 8:19,24 12:22 13:7 14:22 24:19 27:5 27:22 31:25 32:2,7,22 33:22 34:3 expensive 29:15 expression 12:1 14:6 expressly 11:21 extensive 11:16 extent 26:8 exterior 4:3,4,24 5:1,3 6:4,9,12,14 7:2 9:6,10 22:11 34:20 35:1 eyebrow 11:24 F fabulous 19:1,5 30:3 facade 7:8 13:11 14:4 face 9:4 34:17 facility 12:25 fact l 1:10 13:10 17:1 factor 21:15 faith 29:16 falling 22:2 familiar 6:3 fantastic 12:12 far 28:19 feature 7:1 10:17,25 11:1 features 3:18 7:25 February 1:5 38:6 feel 13:2 14:4 17:18 19:4 feet 6:18 8:3 9:11 32:4 32:14 35:3 figure 24:14 Page 3 info@dlecourtreporters.com (786)522-0522 figured 24:16,23 FILE 1:3 filled 7:21 fin 5:6 final 37:5 financially 38:12 finding 36:5 fine 14:1 fire 27:13 first 15:23 26:20 five 9:1 24:24 34:16 fixed 3:25 fixing 18:22 floor 5:3 6:9 7:9 13:6 20:4,5,6,8,11,14 floors 6:16 Florida 18:13 38:2 focal 5:25 focused 6:10 folded 11:23 12:8 followed 15:16 following 8:14 footage 31:25 32:8 footprint 6:4 14:13 foregoing 38:5 form 6:3,12 11:14 12:7 formalism 11:20 formation 3:21,21 former 15:12 forms 6:14 forward 15:2 21:13,23 four 6:14 8:24 24:24 34:3 37:5 Freedman 1:11 19:17 19:20,24 20:3,7,10,13 20:17,21,24 21:2 22:1 22:7 23:3 25:1 35:23 36:23,24 freestanding 5:8 fresh 29:12 front 5:1 10:21 2 1: 10 24:9,18 25:5 full 15:21 fully 14:21,23 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 functions 11:23 14:2 further 38:9 future 31:14 G garden 4:14 8:25 34:4 gateway 29:18 generous 7:21 getting 17:25,25 give 2:13 15:2 18:8 glass 3:23 4:25 7:7 8:15 33:19 glazing 6:13,14,25 go 10:20 13:5 25:9 32:23 goes 12:25 going 11:17 12:23 13:19 13:21,22 24:17 30:4,8 31:11 golden 5:9 Gonzalez 1:12 good 9:18 10:11 18:6 19:12 27:17 31:21 36:5 grabbing 11:13 gray 6:13 23:3 36:5 great 33:9 35:14 grip 24:10 ground 6:7,9 13:6 20:4 20:5,6,8,11 guess 23:15 Guidelines 6:19 14:8 16:14,14 guys 24:13 30:3,7 H half 10:1,2 Hall 1:2 Hang 22:19 happen 30:4 happened 31:9 happens 12:19 hard 24:14 hatch 23:9 hearing 19:15 height 6:17 8:3 9:12 14:19 27:5 35:3 Hello 27:10 HEP 3:1 4:23 15:8,17 16:14 18:2 21:22 26:22 HEPB 1:9 2:2 32:9 36:17 hexagonal 12:10 higher 9:11 35:3 highlight 9:22,25 26:23 27:4 highlights 7:24 26:17 29:9 historic 1:8 2:3,11 3:16 4:18 5:11,21 7:5,10,14 9:2 10:8 13:17 14:11 14:23 15:14 16:15,22 17:8,14,18 18:18 19:4 19:21 20:2 23:17 24:9 26:13 29:7,10 30:25 31:15 33:8,18,21,24 34:1,2,4,6,15,18 35:4 35:18 36:2,8 historical 12:17 historically 13:19,23 history H: 10 23:22 27:12 30:6 honeycomb 30:1 hoping 19:10 Hopper 1:10 2:12,16 9:16 14:16,25 18:4,8 18:11,14 19:13,19 22:19,21 23:1,6,11,14 26:10 30:20 31:23 33:1,4,7 35:9,11 36:4 36:15 37:2,3 horrible 19:7 horseshoe 25:15 hotel 5:6 Hugh 1:12 36:21 I idea 12:13 22:17 ideas 21:20 identical 16:20 identify 5:10 images 11:22 imitate 3:25 immediately 16:21 important UJ J 6 14:5 19:3 improvements 7:15 in -wall 4:2 inadvertent 17:23 include 4:1,16 incorporate 10:23 incorporates 12:24 incorporating 11:4 indicated 23:10 indicates 22:2 influencer 24:3 information 24:5 inherited 24:6 27:14 Inn 5:16 9:5 11:12 16:21 17:9 25:6,10 34:18 inns 11:13 inspiration 11:22 12:6 12:15 13:12 Inspired 5:25 installed 8:5 integrate 12:4 interest 11:25 interested 38:12 interesting 28:8 31:2 interior 6:15 7:2,3 9:6,8 16:13 34:20,21 Interior's 7:13 internally 29:6 interruption 27:1 introduce 10:5 involved 16:2 28:10 Iris 2:14 9:18 issuance 33:11 issued 30:11 issues 13:24 Page 4 info@dlecourtreporters.com (786) 522-0522 item 2:2 15:1 18:5 19:14 36:12,17 J J.J 10:6,11 jacket 30:1,2 Jain 9:23 27:7,10,10 job 18:21 19:1,5 30:3 joined 2:14 Jonathan 1:12 Jordan 1:13 36:25 judged 17:9 judgment 18:1 juxtaposition 29:9 K keeping 13:17,24 22:14 kept 12:23 21:17 key 24:24 kind 11:13,15,24 13:11 14:1 17:3 19:3 25:4,13 26:3 36:13 knocked 30:15 know 10:16 17:15,16 18:6,15 19:10?.1:10 24:2,11 25:3 27:17 28:4,7,10,12,15,19,20 29:2,7,10,11,18 30:1,7 30:17 31:10,21 32:3 35:18,19 Krakower 38:4,19 L labeled 23:16 landscape 7:24 landscaping 7:15,22 language 11:20 laptop 10:16 layout 3:20 leading 4:10 8:20 33:22 leaving 31:11 left 16:10 legend 32:3 legitimate 17:5 letters 5:15 9:4 34:17 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 level 6:7,17,23 20:14 Lewis l :1 l 31:22,23,24 32:6,11,16,19,22,25 33:3,5,8 34:13,25 36:19,20 Liebman 15:13 lieu 21:21 light 7:3 9:7 34:20 lighting 8:1 9:10 35:1 lights 8:2 limitation 14:19 limited 8:3 Lincoln 10:13 line 4:9 6:18 7:19 8:19 33:22 listed 32:20 litigation 30:12 live 15:5 27:11 lobby 3:7 local 16:14 located 2:9 3:9 4:18 5:18 8:8 16:21 location 4:20 6:5 locations 20:25 LOGAN2:18 10:18 21:9 22:8,20,25 23:4,7 23:13,18 long 26:1 27:25 28:21 longer 15:13 look 31:13,14 3 5:17 look-alike 28:3 looked 23:8 looking 12:11 19:21 20:3 23:7,11 24:8,19 25:7,14 26:3 30:18 looks 24:23 25:14,18 28:14 31:21 loss 35:23 lot 8:1,8 9:11 18:22 19:6 25:25 27:13,15 27:16 29:16,24 32:1,8 32:9,19 35:2 Louvre 17:16 love 35:18 Low -E 8:16 33:19 Lynn l :l l 36:19 M main 5:25 7:8 16:8 maintained 12:23 malls 28:15 map 5:17 22:22 23:2,6 23:11,12,19,19 25:7 26:15,15 mass 17:12,19 massive 36:1 materials 13:24 matter 29:14 mean 21:10 22:9 25:24 28:12,19 29:14 31:17 means 35:5 mechanical 6:20 meeting 1:7 15:22,23 Member l :11,12,12,13 1:13 36:21,23,25 Members 15:10 16:2 29:2 36:11 memo 17:12 memory 13:14 mentioned 19:7 Miami 1:1,3 2:3,10 10:14 18:13 19:3 23:16 27:11 microphone 15:2 MiMo 5:20 6:3,18 11:21 12:3,14 14:7 15:6,10,13 17:22 18:18 23:16 26:12 28:10,18 29:5,21 33:18 MiMo-esque 7:18 mind 22:14 minute 33:6 mix35:19 mixture 3:23,24 Mm-hmm 19:23 modern 6:2 12:5 Modern/Biscayne 2:11 modifications 21:5 modified 3:19 Morningside 30:11 36:7 motel 3:3,5 19:21 20:4 20:5,15,22 27:25 motels 11:11 35:24 motion 33:2,3,6 35:12 37:4 motor 5:16 9:5,24 11:12 11:13 17:9 34:18 move 33:11 moving 34:8 mullioned 13:22 muntin 3:25 N name 2:13 5:6,15 9:5 10:11 15:2,4 18:8 27:10 34:18 Nancy 15:13 38:4,19 natural 7:25 necessarily 12:14 need 26:4 27:2 needed 10:9 neglected 18:20 27:19 neighbor 18:17 neighborhood 7:4 9:9 13:4 29:17,19 34:22 never 30:25 Nevertheless 31:19 new 2:8,18,24 3:14,23 4:12,20,24 5:1,5,24 6:1,18 7:6,6,11,14,15 8:6,12,23 9:1 11:20 13:13,15,21 15:23 17:13,25 18:24 22:18 28:20 29:8 30:4 32:4 33:10,15 34:1,6 35:16 newly 15:6 nice 14:2 24:21 nine 9:13 33:18 non- 21:13 35:15 non-contributing 2:7 Page 5 info@dlecourtreporters.com (786) 522-0522 3:5,13 5:20 8:12 13:9 21:19,21 22:15,17,23 24:4 28:5,6 31:6,19 33:15 non -meetings 36:13 normally 16:2 north 3:6,6,14 12:8,13 13:8,9 14:10,10,24 16:18 17:1,6,7 18:24 19:25 21:6,8 22:1 25:15 27:12,16 28:25 31:4 Northeast 3:10 8:7 15:5 18:12 27:11 northerly 32:1 northern 5:19 23:4,8 24:3 Northwest 3:10 Noxon 27:20 number 2:2 22:10 30:24 32:14 34:3,16,19,25 35:6 36:18 L obviously 13:20 17:15 18:1 27:18 29:20 offering 25:24 office 3: l 6 8:9 13:15 Officer 35:5 offices 2:15 9:19 10:13 offset 12:10 Oh 20:3 23:18 25:2 okay 2:16 10:19,19 14:16 18:5 20:3 25:24 26:10 32:6,16,22,25 33:4,7,10 36:15 on -hand 23:23 one-story 2:22 3:7 4:17 4:20 5:22 ones 20:19 open 5:14 9:4 19:15 34:17 opinions 29:23 opportunity 11:7,24 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 28:11 opposed 34:10 opposite 36:3 option 8:15 11:3 33:19 original 5:14 9:3 17:13 17:18 25:11 26:16 34:2,16 originally 30:7 ought 34:22 outdoor 5:3,7 outward 6:12 Overall 6:17 7:10 overpowers 17:18 oversight 17:3 owned 30:1 owners 27:18 P package 16:10 28:22 34:10 packages 11:2 packets 14:12 page 24:25 25:8 painted 4:4 5:4 6:12 palette 14:7 palettes 14:8 Pan 1:2 parcel 23:4,9,23 24:3 parking 8:1,5,8 9:11 12:25 13:1,2,3 14:3 19:8,10 28:16 35:2 part 13:7 18:25 23:20 24:7 25:10 partial 2:21 4:16 partially 5:4 27:18 particular 11:21 23:22 particularly 11:22 21:18 parties' 38:11 partnership 29:17 passes 37:4 passively 12:4 pattern 6:3 12:10 13:22 13:23 pavement 25:21 paving 7:16 paying 11:10 people 27:13 28:12,21 percent 32:17,18,19,21 32:23 permit 24:1 30:10,13 personally 29:25 phonetic 27:20 photo 3:17 24:9 photographs 16:23 pictures 24:13 26:2 piece 29:18 place 12:17,18 21:25 30:10 plan 2:25 4:23 5:11,12 5:13 9:1,3 10:24,25 12:20,21 14:14 24:24 34:5 planners 15:12 16:4 Planning 37:6 plans 4:16,22 7:16,24 8:1 12:20 34:9,10 planted 5:8 7:17 planters 7:18 plate] 1:23 12:8 played 24:7 plays 21:14 please 2:13 15:1 18:8 32:7 36:16 pleased 22:12 29:11,13 PM 1:6 point 5:25 22:19 26:23 pointing 29:20 points 14:17 26:8,19 pole 8:2 portion 4:14,22 7:21 23:10 possible 13:18 16:15 21:17 practically 16:24 17:13 practice 31:9 precedence 12:10 present 2:12 15:20 presentation 10:16 22:22 36:10 presented 4:23 21:22 29:25 presenting 10:6 preservation 1:8 2:4 3:16 8:9 10:8 16:16 29:7 33:9 35:5 preservationist 15:15 president 15:6,13,13 pretty 10:1 24:11,12 prevent 7:3 9:7 previous 24:1 25:8 26:22 27:18 previously 2:19 11:4 28:23 primarily 6:10 16:8 primary 7:1 principally 15:11 principals 10:12 probably 24:13 31:4 problem 19:8 procedure 15:16 proceed 18:5 proceedings 38:6 project 4:22 5:19 6:1 7:6 8:6,9 9:22 11:5,12 14:21 15:21,25 16:6 17:22 18:7,15,23 19:12 28:17,23 29:4 projects 16:3 proper 15:16 properties 18:18 property 2:19 3:2,9,19 3:20 5:11 7:16,18 9:10 30:10 33:16 proposal 4:22 7:11 13:13 21:9,12 proposed 5:10 8:2 10:4 20:11 24:21 26:4 27:6 29:14 32:20 35:24 proposing 5:21 9:22 32:23 protecting 19:1 Page 6 info@dlecourtreporters.com (786) 522-0522 protocol 15:16 17:23 provide 5:1 7:2,9 9:1,6 34:19,20 provided 7:7,16 8:6 34:5 provides 5:2 providing 6:2 19:9 public 15:1 18:5 19:14 19:15 pulled 24:1 27:22 purposes 12:5,5 put 26:12 28:13,16 31:7 question 15:15 16:11 19:17 21:3 28:24 31:24 36:15 questioning 16:8 questions 14:15 19:16 27:8 33:1 R railings 4:9,12 8:19,23 33:22 34:1 ramp 8:8 Ray 27:3 reached 29:3 36:6 reaches 6:12 reading 23:1 ready 29:17 33:2 really 11:7,9 12:6 15:25 16:8 17:7,17 24:14,14 28:24 29:11,13 31:1 36:1 rear 6:25 7:18 8:7 reason 28:4 31:4 rebuild 27:24 28:3 rebuttal 10:9 26:9 recategorizing 31:14 recognize 25:3 29:22 recognized 28:8 recommend 5:9 7:1 recommended 12:22 13:25 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 recommends 8:9 record 3:19 5:11 9:21 14:18 15:3 21:13 27:2 recording 38:8 rectangular 6:11 reference 13:9 reflected 15:9 reflecting 31:4 reflects 26:13 regard 19:20 regarding 27:8 regardless 10:19 regards 9:25 14:18 regret 35:23 regular 1:7 15:21 rehabilitation 17:8 relative 38:9 remain 4:8 7:19 8:18 33:21 remains 3:21 remember 28:22 removal 4:2 remove 4:17 rendering 10:23 1 l :l renderings 11:3 14:9 renovate 27:21 renovating 13:18 renovation 2:6,21 3:11 8:11 33:13 Renovations 4:1 repairs 4:3 repeat 35:20 replace 2:25 13:19 35:15 replaced 21:20 replacement 3:22 35:24 replicate 12:14 13:12 replicated 4:13 8:23 34:2 replicates 4:22 report 2:17 5:17 9:17 9:20 13:25 16:9 23:20 23:21,24 26:13,13,16 represents 32:17 request 24:20 requested 32:12 require 28:3 required 9:15 35:8 requirements 7:13 reserve 10:8 resident 18:7,16 residential 7:4 9:8 34:22 resolution 1:9 2:3 3:1 resort 16:17 respect 28:19 31:3 respected 15:14 respond 22:4 restaurant 20:20,23,24 restaurants 20:8,11,18 20:22 restored 22:13 result 27:15 retail6:9 13:6 14:4 28:14 retain 5:12,14 retained 4:15 8:25 9:4 34:4,17 reuse 14:22 33:25 reused 4:12 8:22 33:25 reusing 19:2 review 16:5 right 10:25 15:9 17:24 19:22 20:24 23:14 24:19 25:2,23 32:4 35:19 36:9 road 10:13 11:14 Robot 10:12 29:13 roll 36:16,17 roof 6:17,21 24:17 rooftop 6:22 rooms 20:4,5,15,22 rows 6:14 run 16:7 17:22 running 17:25 Ryan 1: 12 24:8 25:2,13 25:18,21,24 35:10,11 35:13 36:21,22 S salvaged 4:11 8:22 33:24,25 satisfaction 35:4 satisfy 34:11 saving 28:2 saw 13:10 says 23:2 scale 35:25 scaled -up 12:9 scheduled 36:14 scrambled 16:1 screen 10:15 screening 6:21 se 21:11 second 7:9 20:14 35:9 35:10 second- 5:2 second -floor 4:11 8:21 33:23 seconded 3 5:1 l secondly 26:21,24 27:4 Secretary 2:2 7:13 16:13 26:25 36:17,21 36:23,25 37:2,4 see 10:3 11:22 12:7 16:5 17:17 21:16 23:18 24:18,21 26:4 29:13 30:24 35:21,23 36:2,3 Seeing 19:14 seen 35:20 self-explanatory 17:11 separate 25:16 serious 24:11 set 6:5,8,11 7:8 setting 12:6 seven 9:6 34:25 shade 7:2 9:7 34:20 shading 12:5 shape 4:21 5:12 18:20 shark 5:5 sheet 19:22 sheets 26:12 33:13 shingle 25:4 Page 7 info@dlecourtreporters.com (786)522-0522 show 3:22 4:6 7:17 8:1 11:1,3 23:19,24 showing 34:9 shown 3:19 5:11,17 6:21 7:23 20:18 shows 10:24 14:12 29:16 shutters 4:7 8:17 33:20 side 3:12,14 13:17 14:23 18:16 19:8 28:24 sign 5:6,14 9:3 34:16 signage 11: 15,15 12:19 Signed 38:14 significant 13:20 simply 17:3,24 single -story 28:13 sir 19:19,20 site 5:19 7:15,25 8:2,9 9:24,24 10:1,2 12:24 13:222:1526:1427:9 30:6,9 situation 30:15 six 9:3 24:14,24 26:2 34:19 slated 16:19 slides 13:6 small 4:13 solution 17:8 sorry 20:9 22:22 23:16 26:25 27:3 32:11,11 sort 11:23 12:4,9 13: 10 13:12 14:3 16:1 17:13 17:19 sources 12:6 south 3:3,12 16:21 19:20,25 20:1 21:5 28:23 Southeast 2:15 9:19 southern 25:10 southwest 2:23 4:18 space 6:15,16 spaces 6:9 7:4 9:8 13:1 13:2 34:21 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Historic and Enviromental Preservation Board 2/7/2017 speakl0:18 15:1 18:5 19:14 29:5 36:1 speaking 29:6 Special 2:5,19 8:10 species 7:17 specifics 22:9 spillage 7:3 9:7 34:21 spoken 36:9 Spot 7:23 spotlights 29:10 square 5:12 12:21 14:14 31:25 32:4,7,14 square-shaped 9:1 34:5 squared 10:24,24 11:1 Staff 2:17 5:9,13 7:1,10 9:17,20 12:22 13:25 15:8 18:2 21:3,7,22,24 23:19 staircase 5:1,4 33:22 staircases 4:9 8:20 stance 21:16 standards 7:14 28:18 Stander 15:4,4 Starbucks 18:24 start 2:16 started 11:9 STATE 38:2 stepped 14:3 stepping 13:10 stick 27:22 stop 30:12 storefront 3:24 4:25 6:7 6:8 stories 13:15 street 3:10,10 6:23 8:7 15:5 18:13 26:1 27:11 35:25 strikes 35:24 strip 28:14 structure 2:6,7,23 3:5 3:12,13,17 4:17,19 5:2 5:14,18,22 6:5,10,19 6:257:6,78:11,129:2 9:3 10:2,3 13:16 14:10 14:22 17:14,19 18:25 20:2 21:21 22:13,18 23:25 25:11,17,18 27:12,21 33:14,15,21 33:24 34:4,6,15,16,18 35:16,16 structure's 32:7 structures 2:21,24 3:8 6:2421:1926:227:5 29:10 34:23 35:1,2 stucco 6:4,13 7:7,19 subject 3:2,9 9:14 35:7 submitted 15:8 16:23 17:10 28:22 submitting 15:17 successfully 7:12 superseded 12:21 14:13 support 30:19 supporting 21:8 supportive 7:11 9:20 sure 23:7 27:17 surprised 30:24 surrounding 4:10 6:24 8:21 33:23 survey 24:25 25:8 symmetric 14:2 T take 6:3 21:23,25 taken 19:6,8 27:24 31:18 36:11 38:6 talking 24:10 25:9 26:6 34:14 tall 30:22 team 10:5 tell 22:9 28:1 telling 31:10 ten -story 30:8 tenet 16:16 termite 27:16 terms 16:15 17:19 31:14 terrace 5:3,7 texture 6:3 thank 10:9 14:25 18:2,4 19:12,13 21:2 29:19 29:19 30:19 32:25 36:5 Thanks 18:14 thing 23:2 27:23 28:24 30:15 things 9:25 11:9 19:2 21:1626:11 28:11 29:5 30:21 33:12 think 15:14 17:11 22:9 28:4,9,16 29:1,7,11,15 29:21,23 30:3,17,17 31:8,21 32:2 33:5,8 35:13,14 thought 28:10 thoughtful 30:18 three 8:19 20:7,10,16 20:17,21,22,24 24:24 three -stories 14:20 three-story 2:8 3:15 5:24 8:13 19:22 33:16 thrilled 29:25 time 3:19 10:9 12:16,18 21:4,12 23:23 24:2 26:1,19 27:7 28:22 Todd 1:13 tonight 34:9 tooth 13:10 top 6:17,19 total 13:2 Trachtenberg 1:13 36:25 37:1 Tragash 1:13 transcribe 38:5 TRANSCRIBER'S 38:1 transcript 38:7 transcription 38:8 transition 36:12 treatment 7:3 9:7 14:4 34:20 tree 7:17 trees 7:20 info@dlecourtreporters.com (786)522-0522 tried 12:4 trim 4:5 Trisha 9:21 13:25 Trisha's 10:23 tropical 12:5 true 38:7 try 30:12 35:19 trying 24:9 Tuesday 1:5 turn 19:11 turned 30:13 twin 16:20,24 two 6:16 8:17 10:3 13:6 13:15 21:3 24:24 26:12 27:5 30:24 two-story 3:2,5 7:7 20:1 typical 14:21 U ultimately 12:2,7 unavoidable 16:12 17:10 underground 8:5 12:25 13:1 14:3 19:10,24 understand 17:15 26:5 27:13 understanding 16:13 21:17 undulating 6:6 unfortunately 18:19 uniformity 17:20 units 4:3 Upper 18:16 19:8 urban 10:12 15:11 16:4 29:13 use 5:14 9:4 34:17 utilize 6:1 utilizes 6:6 V vacant 22:10 Vagabond 27:21,25 variety 7:17 various 33:12 veneer 4:7 8:17 33:20 version 6:2 12:9 Vice]: 1] 31:22,24 32:6 32:11,16,19,22,25 33:3,5,8 34:13,25 36:19,20 video -recorded 38:6 view 6:22 14:2,9,11 vine 5:9 vision 27:9 Vista 31:16 vote 36:17 37:5 voted 23:21 W wait 35:21 waiting 36:13 waiver 28:16 waivers 14:20 wall 4:14,24 6:4 7:19 8:25 34:4 walls 4:3,4 want 13:5 15:18 wanted 9:22,25 14:17 16:4 26:22 27:4 warm 8:3 9:12 35:3,5 wasn't 21:11 28:7 water 27:15 way 25:14 we'll 2:16 we're 11:7,19 13:17,19 13:21 17:24 24:19,20 34:14 we've 17:16 28:16 wear 22:11 wearing 30:1 week 16:1 well -lighting 7:23 went 27:21 28:1 white 4:4 6:12 William 1:10 37:2 windows 3:23,24,25 4:1 6:11,15 13:19,21 wing 2:22 4:18,20 17:2 17:6,7 wishing 15:1 18:5 19:14 wonderful 18:21 wondering 36:6 Wood 10:6,11,12,19 19:23,25 20:6,9,12,16 20:20,23 21:1 25:12 25:17,20,22 32:5,9,14 32:17,20,24 work 11:19 13:7 22:16 worth 28:2 wouldn't 29:20 www.miamigov.com 1:3 1:/ Y yeah 18:11 23:3 27:12 33:3 34:14 35:13 year 16:25 18:23 years 21:3 22:10 24:7 31:1 yesterday 15:8 Z zoning 9:14 32:3 35:7 37:6 0 10 1:9 2:2 36:18 13,295.58 32:21 14-006 3:1 15 37:7 17 13:1 18 8:3 9:11 35:3 18,994 32:4 1947 16:20 1952 3:3 1st 38:14 2 20 27:6 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. Ci Historic and Enviromental Preservation Board 2/7/2017 Cit 2006 26:12 2014 2:20 4:23 11:5 21:12 32:9 2017 1:5 38:7,14 2nd 2:15 9:19 3 3:00 1:6 30 -or 3 1:1 31.9 32:17 32 32:17,19,22 33133 1:3 33138 18:13 3332:15 9:19 35 27:6 35- 6:17 35 -feet 14:19 3500 1:2 37 12:25 4 420 10:13 47 32:21,24 5 5061 16:22,23 51013:4 26:14,17,20,21 33:17 5105-5125 1:9 2:9 5125 3:6 5:18 26:18,20 33:17 51st 3:10 52nd 3:10 8:7 531 18:12 6 69th 27:11 7 7 1:5 38:6 720 27:11 74th 15:5 76th 18:12 8 Page 9 info@dlecourtreporters.com (786) 522-0522 830 15:5 87 -story 30:8 9 9,406 32:14 Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk BISCAYNE BOULEVARD HISTORIC DISTRICT Designation Report CIA 7 City of Miami Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk REPORT OF THE CITY OF MIAMI PRESERVATION OFFICER TO THE HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD ON THE POTENTIAL DESIGNATION OF THE MiMo/BISCAYNE BOULEVARD HISTORIC DISTRICT (FROM NE 50TH STREET TO NE 77th STREET) Prepared by Ellen J. Uguccioni for Janus Reseqrch_Consultants Passed and Adopted on Resolution No. CONTENTS: I. General Information ll. Significance Ili. Description IV. Planning Context Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 1097 20 V. Bibliography 21 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk GENERAL INFORMATION Histo is Nam: Not applicable Current Name: MiMo/Biscayne Boulevard Historic District/ (area also known as The Upper East Side) Location: Both sides of Biscayne Boulevard from Northeast 501h Street, north to NE 771h Street Present Owner: Multiple Owners: Complete list of owners available from the Planning Department Present Zoning District: Mixed: office, residential, commercial HC Overlay District: HC -1 Tax Polio Numbers: Multiple Numbers, A complete list of tax folio numbers is available in the Department of Planning and Development HC Zoning Classification: Historic District Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk II. SIGNIFICANCE Statement of Sicinificance. The importance of Biscayne Boulevard cannot be overemphasized as it began and still remains a principal north/south artery thorough Miami. The buildings constructed along this wide corridor illustrate Miami's changing fortunes; its changing demographics and the resultant change to the character of this principal thoroughfare. The construction of Biscayne Boulevard from Downtown Miami northward did not begin until 1925. Before that travelers from the north would enter Miami on West Dixie Highway along NE 2nd Street, angling across the FEC Railroad tracks at NE 36"' Street. The realization of Biscayne Boulevard was the result of millions of dollars of private capital, a stunning demonstration of entrepreneurship during a period when the financial health of Miami was in great jeopardy. The abrupt fall of the Miami boom was cushioned in the first part of 1926 by the conception of Biscayne Boulevard. Like the anesthesia which prepares our nerves for the shock of the surgeon's knife, the creation of Biscayne Boulevard kept Miami going during the summer of 1926 despite the discovery that $50,000 lots no longer could be sold for one-tenth of that amount or that the "summer tourist season" of 1925 was nothing but a delusion. --Kenneth Ballinger Miami Millions 1936 The men responsible for the construction of Biscayne Boulevard, Hugh Anderson and Roy C. Wright, partners in the Shoreland Company, had made huge investments in the Miami area. In 1924, Anderson purchased a 1,600 -acre tract north of Little River to build "America's Mediterranean," the community of Miami Shores. When sales were opened on December 4, 1924, over more than $2.5 million in real estate was sold. Only ten months later, the Miami Shores Company sold over $33 million of land. With this capital in hand, the partners prepared to address a critical component in their formula for success—the creation of a boulevard that would serve the residents of Miami Shores by connecting them to Downtown Miami. During the real estate boom, the building of roadways in Miami simply could not keep up with the frantic pace of development. As a result, traveling conditions were less than ideal. Kenneth Ballinger described it like this: Traffic conditions were so bad during April 1925 that motorists and officials alike ran temperatures all day long. Originally adapted to horse and mule vehicles, Miami streets during the early motor age had little bothersome congestions. But suddenly, these streets were filled with vehicles from every other state, including the Bronx, all competing with the home boys to get somewhere in a terrific hurry. --Ballinger, Miami Millions, 1936 al Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk For Anderson and Wright the building of Biscayne Boulevard was a monumental task as its course ran through both improved and unimproved sections of the city, and required millions of dollars to complete. The partners could not begin the project until they acquired a tract of land owned by Charles Deering that encompassed some nine -city blocks starting at NE 2nd Avenue. On December 5, 1925 the sale was finally completed. Ten days later, construction began on this impressive roadway that would be 100 feet wide and feature the finest of architectural designs for buildings containing a rich variety of goods and services intended for an upscale clientele. In order to build Biscayne Boulevard the Shoreland Company purchased not only land, but also blocks where buildings already existed. Biscayne Boulevard began at SE 2nd Street at the gateway to the gardens of the former Royal Palm Hotel. To accommodate the new boulevard eighty-five buildings were demolished, at least 12 houses were moved to new locations, and several houses were cut in half or had their front porches removed. Unfortunately the Shoreland Company was unable to complete the work, and in 1926, was bought out by Henry Phipps of the U.S. Steel Corporation. The Phipps family formed the Biscayne Boulevard Company, later known as Bessemer Properties, and completed construction of the Boulevard. They also purchased most of the property fronting on Biscayne Boulevard between NE 131h Street and NE 401h Street, with the intention of making it the premier shopping area in Miami. Biscayne Boulevard was opened to automobile traffic in March 1927. The Boulevard extended north until it reached NE 551h Street, where it merged to become US Route 1. At the time, US 1 was known as Federal Highway. The highway was still under construction and would eventually be built through to Jacksonville. The construction of buildings fronting onto Biscayne Boulevard Street did not begin in earnest until the 1940s. For the most part, construction in the northeast was limited to single family residences. Beginning in 1921, a series of plats were filed that did include a few buildings on the boulevard, but they were incidental to the residential subdivisions described in these plats. Those plats included Bay Shore Unit #4, Belle Meade, Baywood and Aqua Marine. The financial strength of the region was weakened by a series of events that began with the devastating hurricane of September 1926. From then on, the ceaseless real estate sales began to dwindle, finally ending in economic disaster. Building in the Greater Miami area was limited between 1928 and 1934, as the region struggled out of the Depression. In his 1949 book, "History of Dade County Florida", Tracey Hollingsworth recounts the turbulent years of Dade County's construction activity. The value of building permits issued for the City of Miami in the two decades that spanned the Boom, Bust, Depression and Post War growth were: Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 1921: 5.4 million 1924: 17 million 1925: 60 million (The height of the building boom) 1927: 9.9 million (The end of the boom) 1928: 2.1 million 1929: 3.9 million 1930: 2.1 million 1931: 3.2 million 1932: 1.67 million 1934: 2.2 million 1948: 30 million Construction activity along Biscayne Boulevard, north of NE 501h Street follows the pattern expressed in these financial statistics. There are very few buildings that date from the 1920s (as the focus was on residential and not commercial construction), but after 1934 the growth of the Boulevard escalates to culminate in its heyday during the 1950s. The war that broke upon the people of the United States late in 1941 ushered in a new era in Florida that was to set off a postwar boom that would transform the economy, push the state for up the list in population rank, and create vast problems arising from rapid growth in every direction. --Carlton Tebeau, A History of Florida By the mid-1950s, Americans abandoned the restraint that was a consequence of the Depression and World War II, to begin an era of unprecedented prosperity. Following World War II, America moved to the suburbs in droves, abandoning the inner city. The nation became an automobile culture, possessing a freedom of movement previously denied them. The increase in automobile travel led to the development of tourist courts and motels. Biscayne Boulevard possesses a wealth of motor courts and motels constructed in the early 1950s. They are representative of a class of buildings that once dominated the streets of Miami. "The Motel Capital of Miami" Because Biscayne Boulevard was also a part of U.S. Highway 1, the north -south artery leading from Key West to Maine, it guaranteed the Boulevard's strategic location as a place for motels catering to the automobile -borne tourist. The project (the construction of Biscayne Boulevard) is regarded as a striking evidence of the increasing influence of the automobile in bringing about the reconstruction of streets and boulevards and to meet the demands of automobile traffic. --The New York Times, October 17, 1926 R Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk In this 1926 article, the New York Times reflected on the challenge that more automobiles would bring to cities across the nation. Their concerns were prophetic, foreshadowing the phenomenon of the1950s, when a new leisure class "hit the road". The word "motel" is first thought to be associated with the Milestone Mo -tel in San Luis Obispo, California that opened in 1926. The word "motor" combined with "hotel" inferred that these accommodations were designed for the highway traveler. During the early development of the industry, there were also a number of other labels that described these highway respites, and included: motor court, tourist court, motel court, hotel court and cottage court. The number of motels rapidly increased during the 1930s, and then again in the two decades following World War II. Not surprisingly, the number of motels closely aligned with the number of registered automobiles. In 1956, there were 24 million passenger cars, and by 1958, there were 5/ million car registrations. Motel operators across the country promoted themselves with exotic associations that spoke directly to the fantasies of the travelers. Nowhere is this more evident than in Florida. Beth Dunlop, the Miami Herald's architecture critic said this about the motels in Miami: Once these were the motels of Miami's tourists—the ones who came not for the beach so much as the weather, for Spring Training or to see the Serpentarium or other long gone attractions; they were destinations, the first choice rather than the last stop. Motel designs were somewhat restrained by the requirements of economy. Designs had to account for parking spaces for each automobile, and often were organized so that the rooms were together in a linear arrangement under one roof. Often, rooms were arranged around a central motor court where the swimming pool was also located. Another motel convention appeared that sought to bring not only visibility but also cachet to their establishments. Huge signs carried on vertical poles and often sporting a rainbow of neon tubing competed for attention along the "strips". The success of a motel was dependent on a series of factors. They included climate, access to highways, and the attractiveness of the surroundings, sufficient parking space, and the proximity to tourist destinations. For each factor, the motels of Biscayne Boulevard excelled. The buildings of Biscayne Boulevard illustrate a variety of types and styles that spanned decades. Together, they create a vision of Miami in transition and as such, are a remarkable collection that conveys a microcosm of Miami's history. 7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Relationship to Criteria for Desi f1ation The Biscayne Boulevard Historic District has significance in the historical and architectural heritage of the City of Miami; possesses integrity of design, setting, materials, workmanship, feeling and association; and is eligible for designation under the following criteria: Criteria #3: Exemplify the historical, cultural, political, economical, or social trends of the community. The changing fortunes of Miami are no better illustrated than in that stretch of pavement called Biscayne Boulevard. While its construction began in 1925, the peak year of the Florida real estate boom, over the years the Boulevard would evolve and reflect the tumultuous economy and social trends of both Miami and the nation. The buildings that remain portray the mixed-use character of the boulevard as it includes private residences, office buildings, retail buildings, and two churches, all of which provided service to the surrounding neighborhoods. Surprisingly, much of the building stock was constructed during the lean years of the Depression. Following World War II and the burgeoning personal wealth of the nation, the Boulevard would be transformed into a vacation destination with a multitude of fanciful motels that catered to the increasing numbers of tourists. The evolution of Biscayne Boulevard as it runs its course northward from Miami's downtown, demonstrates the dynamics of a changing economic and social base. In 1926, when the boulevard was first opened to traffic, the region was still anticipating the same meteoric growth that was experienced during the peak of the real estate boom in 1925. During that period, the platting of residential subdivisions on either side of Biscayne Boulevard was of paramount importance. Following the recovery from the economic collapse of the boom and a national depression, building along Biscayne Boulevard during the thirties and forties was focused on commercial and retail businesses. Some of the commercial buldings also included residential accommodations, resulting in a "mixed-use" character to the boulevard. It was not until after World War II that the physical character of Biscayne Boulevard exhibited its most dramatic change, as the premier location for tourist hotels. Those motels represent the inestimable importance of private automobiles that opened entirely new realms of opportunities for the traveler. 12 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 _ City Clerk Criteria #4: Portray the environment in an era of history characterized by one or more distinctive architectural styles, or period, or method of construction. Because the buildings along the boulevard span a thirty-year period during a rapidly changing era of growth, they reflect then current trends in architectural style. The Boulevard possesses fine examples of residential and commercial design that include vernacular, Mediterranean Revival, Art Deco and Miami Modern styles. Criteria #5: Embody those distinguishing characteristics of an architectural style, or period, or method of construction. As America moved from a historicist eclectism in its building design, so too did Miami with its own version of what is generically called the "Modern" movement. Beginning with the Art Deco designs of the late thirties and forties, architects began to look for a more unique expression and one that related to a sense of place. In Miami the Art Deco designs featured maritime motifs and native flora and fauna in the building ornament. In the 1950s, the area experienced the greatest change when the personal automobile enabled mobility for the average citizen. In Miami the consequences were enormous, as millions took to the roads in search of exotic destinations. The result was the building of hundreds of motels throughout the state, which evidenced not only new building technologies, but also a spirit and identity. For Miami that identity has been characterized as Miami Modern, or MiMo. Biscayne Boulevard contains a high number of surviving motels trom this era that are quintessential reminders of this age and architectural expression. 6 Submitted into the public Record for item(s) On 05-25-2017 Ill. DESCRIPTION Present and Original Appearance Settg: PZ.15 City Clerk The Biscayne Boulevard Historic District includes both sides of Biscayne Boulevard from NE 501h Street north to NE 771h Street. Descr3 fiion: Although Biscayne Boulevard is considered a major commercial artery within the City of Miami, there were once a number of single-family residences and apartments that added another dimension to its character. The mixed-use concept of residential close to commercial enterprises was expressed in the original concept For Biscayne Boulevard. The buildings fortunate enough to face this grand thoroughfare were expected to be of a significant scale and design. The period of significance for the Biscayne Boulevard Historic District extends from 1923 through 1965. Residential: Within the proposed historic district, there are several single-family homes that illustrate the high caliber of their design. The residence at 5801 Biscayne Boulevard, constructed in 1932 possesses a wealth of detail, from the compound arch of the center window facing Biscayne, to its complicated corner entry and intersecting roof slopes (Figure 1). At 6000 Biscayne Boulevard another residence built on a corner, artfully spans the juncture with a one-story entrance porch, opening to the two story wings of the main house. While in the previous two examples, the single-family character is retained despite their conversion to commercial enterprises, in other cases the conversion has resulted in the loss of the original physical integrity. The residence at 5601 Biscayne Boulevard (445 NE 561h Street) built in 1929, was originally a textbook example of an elaborate Mediterranean Revival design. Today, its conversion to an office use has led to the elimination of windows and loss of details. Retail Stores Biscayne Boulevard was, above all else, a boulevard offering shops and services. The majority of these retail establishments were built between the late 1930s and into the 1940s. The functional requirements for a retail use, (i.e. generous storefronts, multiple entry points and height limited to a single story), usually resulted in simple buildings of rectangular form. The retail buildings along Biscayne Boulevard reflect this simplicity, but usually include some features or details that place it firmly in a particular stylistic era. This is true of the building at 7400 Biscayne Boulevard, built in 1936 (Figure 2). The rounded corners and vertical fluting of the parapet, identify it as an Art Deco design. Another good 10 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk example of the treatment of retail space is the building at 6101 Biscayne Boulevard, now a supermarket, constructed in 1945. Houses of W©rshio There are two churches within the Biscayn the New Mount Pleasant Baptist Church at (Figure 3) and the Boyshore Evangelical Boulevard constructed in 1946. Commercial / Office Buildings Boulevard Historic District. They are 7610 Biscayne Boulevard built in 1951 Lutheran Church at 5051 Biscayne Offices for major corporations appear on Biscayne Boulevard, some of which are architecturally significant and represent changing stylistic trends. The Maule Building, located at 5220 Biscayne Boulevard and built in 1954 is a particularly important example of modern architecture located on the boulevard (Figure 4). The firm of Pancoast, Ferendino, Skeels and Burnham designed it. Russell Pancoast, a principal of the firm, was the son of Thomas Pancoast, who came to Miami Beach during the teens to become the Vice -President of John Collins' Miami Beach Improvement Company. Pancoast was instrumental in the success of the City of Miami Beach. His son Russell became one of the premier designers of buildings in Miami Beach and founded the architectural firm that added partners throughout its history and later evolved into the Spillis, Candela and Partners architectural firm. Maule Industries manufactured concrete building materials and chose to showcase the versatility and variety of the material in a building especially designed for them. Scholars of the Miami Modern architectural movement consider the Maule building a fine representative of Minimalist Miami Modern; especially in the way it integrates symbolic and structural elements. The building is a tour -de -force in its combination of heavy and lighter ornamental concrete to achieve its sleekness and striking geometry. There are a total of 374 pre -cast concrete louvers that function as a brise-soleil, to block unwanted sunrays. The three-story Maule Building was constructed at a cost of $275,360.00. (Editor's note: This building was recently demolished in February of 2006.) Another exceptional building of the modern era is the General Tire Building at 5600 Biscayne Boulevard. Architect Robert Law Weed, who was then with the firm of Weed Russell Johnson Associates, designed the building that was constructed in 1956. Weed was a prodigious architect who in 1930 designed the exceptional Shrine Building/ Boulevard Shops at 1401 Biscayne Boulevard. During the 1940s Weed was one of the principal designers of the University of Miami campus in Coral Gables. Those designs conveyed the influence of the International style and a departure from a historicist tradition. The General Tire Building is clearly a product of the 1950s and is considered an influential and important modern design within the Biscayne Boulevard Historic District. 11 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Mixed -Use au lldinas Biscayne Boulevard features a considerable number of significant buildings that contain office and/or retail space in combination with residential quarters. The combination reflects the urban living concepts that were expressed from the very beginning of Biscayne Boulevard's construction. Generally, the retail and/or office space was contained on the first floor where storefronts revealed the type or merchandise or service that the establishment offered. The second story of the building was designed as an apartment, often for the proprietor of the store or office below. The mixed-use building at 7240-46 Biscayne Boulevard was constructed in 1935, and is dramatically sited on a corner. The building curves on the corner, offering a series of storefront bays, and then extends along the street with frontage on both Biscayne Boulevard and NE 73,d Street. The building's geometry, along with the horizontal score lines that extend across the fagade characterize the building's Art Deco style (Figure 5.) In a similar, but much larger scale mixed use program, the building at 7235 Biscayne Boulevard (602 NE 72nd Terrace), remains as finely designed example of thirties style. The previous example illustrates a building that more resembles a commercial than residential building. In another example, the building reflects the opposite. At 7550 Biscayne Boulevard (Figure 6), the building was originally both an office and residence. Built in 1935, this frame residence with its wood shingle roof, prominent chimney and gable roofed dormers disguises the fact that the building contained offices inside. Biscayne Boulevard Motels Biscayne Boulevard possesses a wealth of motor courts and motels constructed during the 1950s. They are representative of a class of buildings that once dominated the principal thoroughfares in Miami. The following describes all of the buildings along that portion of Biscayne Boulevard described in this report that were used as motels, even though some have been adapted to other uses. In a few instances, buildings that were not designed as motels have been converted to that use. Bayside Motor 5101 Biscayne Boulevard 1952 The two-story building contained nineteen units, and was built at a cost of $55,300.00. The courtyard plan and the sheltered porch areas are typical of the motel designs of the period. Former Cadillac Motel 5201 Biscayne Boulevard 1947 Present use; Apartment Now exclusively an apartment building, originally this building was constructed as the Cadillac Motel and Apartments. Today, the building retains a remarkable 12 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk degree of integrity. The rectangular mass of the building is slanted outward in an unusual treatment. The two stories are fenestrated with broad rectangular window areas that feature an eyebrow ridge that extends across the main elevation. The result is a sleek, modern approach to motel design. Former Motel 5445 Biscayne Boulevard 1954 (recently demolished) Present Use: Apartment Originally this 23 -unit motel was built at a cost of $73,400.00. The pool was added in 1957. Because of its alterations the building has been classified as non-contributing due to its loss of integrity. Former Motel 5501 Biscayne Boulevard 1948 (recently demolished) Present Use: Apartment Miami -Dade County Assessor's records indicate that this building was constructed in 1948 with a total of twelve living units. Former Sea Cove Motel 5750 Biscayne Boulevard 1952 (rec. demolished) Present Use: Apartment Originally this building operated as a motel with the name "Sea Cove Motel". Although considerably altered the buildings still convoy its original central courtyard plan, with the office characterized by a dramatic curvilinear two-story volume mass at the entrance to the courtyard. Seven Seas Motel 5940 Biscayne Boulevard 1955 The Seven Seas with its two stories and "L" shaped plan is typical of 1950s motel design. The building also features a pylon sign with bold neon lettering. Carl's EI Padre Motel 5950 Biscayne Boulevard 1951 This one story, ten -unit hotel is one of the simpler designs on the Boulevard. During the 1950s, the motel was called "Carl's EI Padre Hotel", and advertised modern hotel rooms and efficiencies. The owners were Mr. and Mrs. Carl Talazko. Sinbad Motel 6150 Biscayne Boulevard 1953 The building permit for the Sinbad Motel was for a twelve -unit apartment built at a cost of $108,350.00. The Sinbad consists of a rectangular block without the amenity of a swimming pool. The building has been considerably altered, as the original fenestration of the first floor has been enclosed, and a heavy metal picket balustrade now frames the simple terrace that extends around the building. In a 1950s postcard the caption read in part: "Cathedral beamed ceilings—Foam rubber bedding—Tub baths with showers." 13 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Shalimar Motel 6200 Biscayne Boulevard 1951, Addition 1953 Architect: Edwin Reeder (Figure 7) Along with the South Pacific Hotel next door at 6300 Biscayne, and the Sinbad Motel to the south at 6150 Biscayne Boulevard, the Shalimar completed a thematic group of motels alluding to sea adventure and exotic locales. The original building permit indicates that the building was constructed as an apartment, however the plan does not include provision for kitchens. The "I" shaped configuration of the plan would be changed to a "U" when an addition was made in 1953. The swimming pool was added in 1955. The Shalimar's designed opted for a more residential look, as the series of bays are separated by full height columns that carry a low -sloped gable rooft. The focal point of the Shalimar is its delta wing pylon that carries 'the neon signage for the building. South Pacific Motel 6300 Biscayne Boulevard 1953 Architect: Charles Giller The South Pacific Motel with its twenty units is not one of the biggest of the 1950s motels on the Boulevard, but is one of the most interesting because of its enormous pylon sign and use of a stone facing. The one story office that fronts onto Biscayne Boulevard is faced with a coursed stone veneer that steps down to create a zigzag lighting bolt. Stephen's International Hotel, 6320 Biscayne Boulevard 1946 Over the years the motel was known by several different names, including the "Ken -Lin" and the Elks Motel Apartments. The complex contained twenty-two units, some with kitchens. Motel New Yorker (now Davis Motel) 6500 Biscayne Boulevard 1953 Architect: Norman Giller (Figure 8) Currently called the Davis Motel, this building is a quintessential example of motel design in 'the "modern age." An original plan indicates that the building was constructed for Mr. A. Barson. The building is small in scale with only eighteen units, and cost $55,000 to build. Originally named the "Motel New Yorker", it features an "L" shaped plan and each of the two stories mirror each other. The focal point of the composition is the office, strategically placed close to Biscayne Boulevard. The design uses contrasting geometry to create its unique approach. Motel Champlain (now an annex of the Davis / Former Motel New Yorker) 1954 This building started out as an apartment building with 28 units and a penthouse that contained the cooling tower. A modern building, its two-story rectangular form is articulated by a series of plate glass windows separated info bays by both 14 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk lobby columns and piers that support the second story. A continuous balcony consisting of a pipe rail grid extends around the sides of the building. At some time, the building became associated with the New Yorker but was also known independently during the 1950s as the Motel Champlain. A postcard from the late 1950s had this caption: " WE OFFER YOU—Swimming Pool, 51 rooms -Air Conditioned/ Heafed—Kitchenettes (Efficiency) available, COLOR TV in all rooms, convenient to all Race Tracks, Shopping, Fishing and Airport, 10 minutes to beaches (Ocean) 24 hr. telephone service, Special Daily, Weekly and Monthly Rates, Free Parking." Stardust Motel 6730 Biscayne Boulevard 1956 Maurice S. Weintraub, Architect The Stardust remains as an independently owned motel that is characterized by an idiosyncratic design. This 54 -unit motel was constructed at a cost of $112, 700, and opened in 1956. The design is based on the classic motel "H" plan shape with two story wings that wrap around the center courl with its swimming pool. The focal point of the Stardust fronting on Biscayne Boulevard is its office component, a two story half -pyramid shape. The acute angle of the roof slope eventually terminates as the roof of the porte-cochere. The termination of the arm of the "H" plan at the opposite end of the motel is a two-story block that also defies stylistic convention. The first floor of the square plan consists of ca flcal- roofed block with an almost mansard -looking extension that begins at the base and extends across the length of the block. The second story is set back and is unremarkable. The swimming pool was heated and considered Olympic size. The complex included a coffee shop, T.V. Room and Card Room, Motel 6789 Biscayne Boulevard 1952 (recently demolished) This motel is one of the simplest on the Boulevard as it is simple narrow linear arrangement of rooms. The eleven -unit block was constructed at a cost of $22,000.00. An additional two units were added in 1968. Saturn Motel 6999 Biscayne Boulevard 1952 The Saturn was built in 1952 with sixteen unils. Although a simple rectangular plan, the motel sports an ornamental cornice and the fanciful fin shapes frequently associated with 1950s design. The Sir William Hotel 7100 Biscayne Boulevard 1939 Altered 1960 (Non -Contributing) In 1939 this three-story building was constructed to house stores and offices. There were two stores on the ground floor, and three apartments, apparently one per floor. During the mid -1940s the building was known as the "Sir William Hotel". A 1947 postcard had this as a caption: " One of the most beautifully furnished and Modern Hotels in the Miami Area—All outside rooms with Private Bath and Shower—Elevator Service—Patio—Coffee Shop—Free Parking Space --- Convenient to all activities." 15 Submitted into the Public Record for item(s) On 05-25-2017 PZ.15 _ City Clerk The building, with its rounded corners, eyebrow lintels, and wrap around corner windows evoked the Art Deco style. Unfortunately, in 1960 the building was converted to offices, obliterating the main elevation with a screen, and significantly altering the storefronts. Because of the degree of these alterations, the building has been classified as non-contribufing, due to the loss of its physical integrity. The Camelot Inn 7126 Biscayne Boulevard 1938 Originally the Miamian Hotel, This three-story building, constructed before the advent of the motel age,( and hence the lack of parking on-site), still continues the traditions of a more formal hotel setting. Built at a cost of $26,000 this narrow building has a thirty-five foot frontage on Biscayne Boulevard and then extends back seventy feet. The detail of the building is clearly a product of the Art Deco aesthetic with its main facade detailed with a strict geometry produced by the compound vertical fluting of the center bay, and the corner windows at either end. The original building permit indicates that there were twenty-two units contained in the building. A post card from the 1950s has this as its caption: "Located on Biscayne Boulevard in Exclusive Northeast Section...10 minutes to Beach, Modern and Homelike... Catering to a Restricted Clientele". Vagabond Motel 7301 Biscayne Boulevard 1953 B. Robert Swartburg: Architect (Figure 9) A City of Miami Historic Landmark, the 53 unit Vagabond Motel is considered an exemplary portrayal of the Miami Modern style for its open-air plan, jalousie windows, geometric designs, overhanging roof lines, and open air verandah with catwalk. Swartburg was one of the leading Modernist architects I Miami, and he began his career in Miami during the mid -1920s. Swartburg also designed the Metro Justice Building and the Delano Hotel in Miami Beach. Sunshine Motel (former Alda Rochester Motel) 7350 Biscayne Boulevard 1939, remodeled. 1952; 1954 (Figure 10) The design for this 22 unit building, constructed during the lean years following a nation-wide depression, takes full advantage of its corner location on Biscayne and NE 741h Street. Its three-story mass takes the form of a rectangle with a mere 25' of frontage along Biscayne Boulevard, with the major portion of the building with a frontage of 113' on NE 74th Street. Unlike the motels built in the 1950s, the Sunshine Motel is a product of the Art Deco era. The curved three-story front on the corner provides the intersection for the wings that extend from it. The fenestration pattern is composed of narrow rectangular windows that are shaded by the projecting masonry eyebrow lintels above them. The spandrels between the floors are decorated with a zigzag motif, a popular device in Art Deco architecture. Bands of incised score lines wrap around the building adding to the definition of its geometry. 16 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 _ City Clerk In 1952 modifications to the entrance were made, and in 1959 the entrance canopy was added. A patio and pool were added in 1961. A postcard from the 1950s had this as its caption: "The Alda Rochester Hotel, 7350 Biscayne Boulevard. On US# 1, Motel rooms—Comfortably, Modernly furnished—Tile Baths, Tub and Showers—Modern Air-Conditioning—Central Heating--- Daily Maid Service—TV Lounge—Swimming Pool—Lose to Shopping Churches, Restaurants, Theaters, Race Tracks and All Points of Interest—Minutes from Beach Causeways—Free Parking—Open Year' Round" Russell & Esther Fustanio—Managers Knoxon Drive -In Hotel 7411 Biscayne Boulevard 1951 Norman M. Giller, Architect Located on the northeast corner of NE 741h Street and Biscayne Boulevard, the present Royal Motel was actually designed for use as individual apartments, apparently the reason it is called a hotel. The two-story building contained a total of twelve apartments, some of which contained kitchenettes and pulrnanettes. While the lobby fronts on Biscayne Boulevard, the mass of the building extends along NE 74th Street. The building takes a simple rectangular shape with identical detail on the first and second floors. The impression of sleekness is created by the cantilevered balcony roof along with the cantilever of the roof that projects from the lobby. The most dramatic detail is the wall that extends perpendicularly above the second floor roof and carries the signage for the motel. Motel 7481 Biscayne Boulevard 1948; remodeled 1960 (Non-contributing) The original permit for this building indicates that it was built as a motel, and later converted for offices. Because the conversion eliminated or reconfigured doors and windows, the building is considered to have lost its integrity. STYLES OF ARCHITECTURE Because construction on Biscayne Boulevard spans the period from the 19205 through the 1950s, there are examples of the styles of architecture most popular during each of those decades. While the majority of the buildings within the Biscayne Boulevard Historic District date from after the real estate boom of the mid - twenties, the use of Mediterranean Revival style continues even into the 1930s. The Art Deco style then supplanted the Mediterranean Revival as the favored means of architectural expression into the 1940s. The "Modern Period", generally considered to date from after World War II and into the 1950s, reflects a departure from historicist references towards a truly novel aesthetic. The Biscayne Boulevard Historic District includes some unique modern commercial buildings, as well as the largest collection of "Miami Modern" motels in Miami. 17 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Mediferronean Revival The Mediterranean Revival style of architecture was the predominant stylistic choice for the region during the Florida Land Boom of the 1920s. The style is an eclectic derivation that relied on the inspiration of Spanish, Italian and Moorish architecture. This type of design, which in California during the previous decade was called "Spanish Colonial", was perfectly suited to the climate of South Florida. Perhaps more importantly, it created a theme and romantic identify for South Florida's newly created suburbs. Plan shapes often created a courtyard; and arcades, loggias and porches provided easy access to the outdoors. The Biscayne Boulevard Historic District includes both residential and commercial examples including the residences at 5859 Biscayne Boulevard, constructed in 1924 (Figure 1 1) and the commercial buildings at 7120 Biscayne Boulevard, 7235 Biscayne Boulevard. Art Deco Many of the buildings along Biscayne Boulevard were constructed during the mid 1930s into the mid 1940s. The preeminent choice of architectural style during that period was Art Deco. Art Deco is considered one of the first of the modern styles, as it is a deliberate move away from the historicist styles, to a new expression that sought to complement the machine age. Designs for Art Deco buildings were often stark, Ornamentation was concentrated at the parapet, and the shapes of the windows, scored lines, and curving wing walls emphasized the building's geometry. Excellent examples of this style are found at 7222 and 7240 Biscayne Boulevard (Figure 5). Miami Modern ( MiMo) MiMo or Miami Modern is the name coined by Randall Robinson and Teri D'Amico to describe the architecture that flourished in South Florida from 1945 until the late 1960s. In their words: MiMo is not a single style, but rather a confluence that includes the world- renowned Resort glamour of Morris Lapidus, the sublime Subtropical Modernism of Igor B. Polevitzky, and the flamboyant Latin infusion of Enrique Gutierrez, the architect of one of the Southland's Modernist masterpieces, the Bacardi USA building. The common denominator is a time—the heady decades after the war—and a place-- the subtropical environs of South Florida. Miami Modern is further classified into two distinct strains, Resort MiMo and Subtropical Modernism. The visual "lineage" for both the resort and subtropical versions of Miami Modern can be traced to Miami's emerging modern movement beginning in the 1930s. Local architects adapted elements of the International, 18 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Streamline Moderne and Art Deco styles in their versions of contemporary buildings. Resort MiMo of the 1950s is a product of these experimentations, best represented by the vivid scenographic expressions of Miami Beach architects. Resort MiMo is associated with the 1950s and 1960s and the influences of Hollywood set design, automobile styling, military jets and the space race. The American fascination with Futurism was a pervasive influence in the designs of Resort MiMo. It was realized in architectural form by acute angles, boomerangs and trapezoid forms. Subtropical Modernism was a strain of the modern movement that recognized the needs of a year-round population rather than solely the demands of the winter - resort guests. As a result, designers addressed the humidity and heat of summer by making accommodations for breezy corridors, covered galleries and shady courtyards. Subtropical Modernism also employed elements associated with the International Style of architecture that included glass walls and low -slung lines, flat roofs and wide eaves and free-flowing interior spaces. Many of the motels along Biscayne Boulevard are impressive examples of Resort Miami Modernism. Their surviving numbers and the quality of their designs contribute greatly to the Biscayne Boulevard Historic District's significance (Figures 7, 8, and 9). 19 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk IV. PLANNING CONTEXT Present Trends cnd Conditions: During the 1970s, the upper east side of the city along Biscayne Boulevard began an economic decline. In most recent years, Biscayne Boulevard has been the subject of considerable investment. The City of Miami, in facilitating both growth and appropriate development, has held charettes to receive citizen input on the Boulevard's redevelopment. The historic district designation of Biscayne Boulevard will aide this redevelopment by the identification of historic resources. Historic district designation will insure that any new buildings constructed will be required to consider the architectural context of the existing neighborhood. That provision enables an exciting mix of the old and the new. Preservation Incentives: The historic district designation will further enhance the stability of the neighborhood. Design review of new construction that may be built in the neighborhood will assist in maintaining aesthetic harmony. Further, for residents as well as income producing property owners, Miami -Dade County allows an ad valorem tax exemption for the rehabilitation of historic structures. If a nomination to the National Register of Historic Places were written for all or part of this proposed district, upon listing, the depreciable buildings would become eligible for a 20% Investment Tax Credit. The credit is applied against the owners' income tax liability when a "substantial" rehabilitation of a building is undertaken. 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk V. Bibliography Ballinger, Kenneth. Miami Millions (Miami: Franklin Press) 1936 City of Miami, Building & Zoning Department, Building Permit Records City of Miami, Building & Zoning Department, Plat Maps for "Belle Meade"; Replat of Belle Meade; Knight Addition; North Gate; Federal Way Amended; Aqua Marine; Baywood 15' Addition; Lipshin Manor; Bayshore Plaza Unit 4; Bayshore Plaza Unit 5. Dunlop, Beth. "Photos Capture Motel Magic" Miami Herald, 26 October 2003,4M Dunlop, Beth. "Street Smart" Miami Herald, 22 June 2003, 3M Eaton, Sarah E. "Biscayne Boulevard Thematic Group" Nomination, National Register of Historic Places. Jacke, John A., Keith A. Sculle and Jefferson S. Rogers. The Motel in America (Baltimore: John Hopkins University Press), 1993. Nash, Eric P. and Randall C. Robinson Jr. MiMo Miami Modernism Rediscovered. (San Francisco: Chronicle Books), 2003, Motel Postcards. Private collection of historian Larry Wiggins. Sanborn. Insurance Maas of Miami Florida, Vol. 2 and 3, New York: Sanborn Map Company 21 Submitted into the public Record for item(s)_ On 05-25-2017 . PZ.15 City Clerk Figure 1. 5801 Biscayne Boulevard, 1932 Mediterranean Revival 22 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk Figure 2. 7400 Biscayne Boulevard, 1936 Moderne 23 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk i; Now pC�o Figure 3. New Mount Pleasant Baptist Church 7610 Biscayne Boulevard, 1951 Sub Tropical Modernism 24 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk Figure 4. Originally The Maule Building (now demolished) 5220 Biscayne Boulevard, 1954 25 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk Figure 5. 7244 Biscayne Boulevard, 1935 Art Deco 26 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Figure G. 7550 Biscayne Boulevard, 1935 27 Submitted into the public Record for item(s)_ On 05-25-2017. PZ.15 City Clerk Figure 7. The Shalimar Motel 6200 Biscayne Boulevard, 1950 Miami Modern :, Submitted into the public Record for item(s)_ On 05-25-2017 . PZ.15 City Clerk Figure 8. Originally The New Yorker Hotel 6500 Biscayne Boulevard, 1953 Miami Modern 29 Submitted into the public Record for item(s) On 05-25-2017 PZ.15 City Clerk Figure 9. The Vagabond Motel 7301 Biscayne Boulevard, 1953 Miami Modern 30 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Figure 10. The Sunshine Motel /350 Biscayne Boulevard, 1939 Art Deco 31 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Figure 11. Originally a Single Family Residence 5859 Biscayne Boulevard, 1924 Mediterranean Revival 32 Contributing -and Non -Contributing Structures 5000 Block of Biscayne Boulevard 5020 Biscayne Blvd. 5040 Biscayne Blvd. 5046 Biscayne Blvd. 5050 Biscayne Blvd. 5050 Biscayne Blvd. 5051 Biscayne Blvd. 5061 Biscayne Blvd. 5080 Biscayne Blvd. 5084 Biscayne Blvd. Office Retail Office Office Office Bayshore Lutheran Evangelical Church Office/Retail Retail Retail Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 1949 Non -Contributing 1946 Non -Contributing 1950 Non -Contributing 1952 Non-contributing 1968 Non-contributing 1946 Contributing 1947 Contributing 1946 Non-contributing 1950 Non-contributing 5100 Block of Biscayne Boulevard 5101 Biscayne Blvd. Bayside Motor Inn 1952 Contributing** 5120-40 Biscayne Blvd. Office/Retail 1950 Non -Contributing 5200 Block of Biscavne Boulevard 5201 Biscayne Blvd. Former Cadillac 1947 Contributing Motel 5215 Biscayne Blvd. Budget Inn Motel 1947 Contributing 5255 Biscayne Blvd. Best Value Inn 1947 Contributing 5300 Block of Biscayne Boulevard 5398 Biscayne Blvd. Restaurant 2002 Non -Contributing 5305 Biscayne Blvd, Apartment 1947 Contributing" 5400 Block of Biscayne Boulevard 5400 (5402) Biscayne Blvd. Gas Station 1956 Contributing 5500 Block of Biscavne Boulevard 5555 Biscayne Blvd. Office 1973 Non -Contributing 5599 Biscayne Blvd. Office 1952 Contributing 5556 NE 0h Court Restaurant 1938 Contributing 5580 -5584 NE 4th Court Retail 1948 Contributing 5600 Block of Biscavne boulevard 5600 Biscayne Blvd. General Tire 1954 Contributing (Andiamo's Pizza) 5601 Biscayne Blvd. (aka 445 NE 56th Street) Former residence 1929 Contributing 5615 Biscayne Blvd. Residential 1974 Non -Contributing 5631 Biscayne Blvd. Former residence 1938 Contributing 464 NE 571h Street Residential 1960 Non -Contributing 5700 -Block of Biscayne Boulevard None ** Indicates a Permit has been applied for prior to the designation process [331 5800 Biock.of Biscayne Boulevard 5800 Biscayne Blvd. Apartments 5801 Biscayne Blvd. Former residence 5810 Biscayne Blvd. Residence 5841 Biscayne Blvd. Former residence 5850 Biscayne Blvd. Residence 5859 Biscayne Blvd. Former residence 5900 Block of Bisca ne Boulevara 5940 Biscayne Blvd. 7 -Seas Motel 5943 Biscayne Blvd. Office 5950 Biscayne Blvd. Motel 5963 Biscayne Blvd. Office 5995 Biscayne Blvd. Office 5999 Biscayne Blvd Office 6000 Block of Biscayne Boulevard 6000 Biscayne Blvd. Residence 6075 Biscayne Blvd. (aka 620 NE 615' Street) Gas Station 6050 Biscayne Blvd. Retail 6100 Block of Bisca ne Boulevard 6100 Biscayne Blvd. Retail 6150 Biscayne Blvd. Sinbad Motel 6200 Block of Biscayne Bpulevard Submitted into the public Record for item(s) On 05-25-2017 1935 Contributing 1932 Contributing 1940 Contributing 1924 Contributing 1940 Contributing 1924 Contributing 1955 Contributing 1933 Non -Contributing 1951 Contributing 1968 Non -Contributing 1974 Non -Contributing 1989 Non-contributing 1930 Contributing 1965 Non -Contributing 1946 Contributing 1963 Non -Contributing 1953 Contributing 6200 Biscayne Blvd. Shalimar Motel 1950 Contributing" 6201 Biscayne Blvd. Retail 1938 Contributing 610 NE 63(d Street New Construction 2003 Non -Contributing 6300 Block of Biscoyne_8oulevard 6300 Biscayne Blvd. South Pacific Motel 1953 Contributing 6301 Biscayne Blvd. Office 1958 Non -Contributing 6320 Biscayne Blvd. Stephens lnt'I Motel 1946 Contributing 6400 Block of Bis cavae Boulevard 6400 (6414) Biscayne Blvd. Office 1965 Contributing 6443 Biscayne Blvd. Former residence 1940 Contributing" 6444 Biscayne Blvd. Office/Retail 1951 Non -Contributing 6599 Biscayne boulevard Police Substation 1995 Non -Contributing 6500 Block of Biscayne Boulevard 6500 Biscayne Blvd. Davis Motel 1953 Contributing 6580 Biscayne Blvd. Davis Motel 1954 Contributing 6600 Block of Biscayne Boulevard 6600 Biscayne Blvd. Retail 1941 Non -Contributing 6621 Biscayne Blvd. Retail 1936 Non -Contributing ** Indicates a Permit has been applied for prior to the designation process [34] PZ.15 City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 6630 Biscayne Blvd. Office 1950 Non -Contributing 6660 Biscayne Blvd. Office 1960 Contributing 6700 Block of Bisc.avne Boulevard 6700-08 Biscayne Blvd. Retail 1974 Non -Contributing 6701 Biscayne Blvd. Retail 1940 Non -Contributing 6730 Biscayne Blvd. Stardust Motel 1956 Contributing 6800 Black of Biscayne Boulevard Retail 1958 Non -Contributing 6800 Biscayne Blvd. Gas Station 1990 Non -Contributing 6807 Biscayne Blvd. Mixed Use 1936 Non -Contributing 6815-25 Biscayne Blvd. Retail 2003 Non -Contributing 6900 Black of Biscayne Boulevard 6900 Biscayne Blvd. Former residence 1923 Non -Contributing 6901-09 Biscayne Blvd. (aka 607 NE 69th Street) 1968 Non -Contributing 7222-26 Biscayne Blvd. Retail 1947 Contributing 6910-16 Biscayne Blvd. Retail 1958 Non -Contributing 6925-27 Biscayne Blvd. Retail 1955 Contributing 6928-30 Biscayne Blvd. Office 1940 Non -Contributing 6999 Biscayne Blvd. Saturn Motel 1952 Contributing 7000 Blockof Biscayne Boulevard Non-contributing 7281 Biscayne Blvd. 7001 Biscayne Blvd. Restaurant 1945 Non -Contributing 7005 Biscayne Blvd. Restaurant 1961 Non -Contributing 7011 Biscayne Blvd. Restaurant 1945 Non -Contributing 7015 Biscayne Blvd. Restaurant 1945 Non -Contributing 7030 Biscayne Blvd. Restaurant 1946 Contributing 7100 Black of Biscayne Boulevard 7100 Biscayne Blvd. Office 1939 Non -Contributing 7101 Biscayne Blvd. Office 1939 Contributing 71 1 1 Biscayne Blvd. Office 1936 Non -Contributing 7120 Biscayne Blvd. Retail 1938 Contributing 7126 Biscayne Blvd. Camelot Inn 1938 Contributing 7150 Biscayne Blvd. King Motel 1953 Non -Contributing 7200 Block of Biscavne Boulevard 7200-08 Biscayne Blvd. Retail 1948 Contributing 7201 Biscayne Blvd. Restaurant 1968 Non -Contributing 7222-26 Biscayne Blvd. Retail 1947 Contributing 7228-32 Biscayne Blvd. Retail 1947 Contributing 7235 Biscayne Blvd. (aka 602 NE 72nd Terrace) Retail/Apartment 1935 Contributing 7244 Biscayne Blvd. Retail/Apartment 1935 Contributing 7251 Biscayne Blvd. Restaurant 1954 Non-contributing 7281 Biscayne Blvd. Retail 1969 Non -Contributing 7295 Biscayne Blvd. Retail 1969 Non -Contributing ** Indicates a Permit has been applied for prior to the designation process [351 7300 Block of Biscayne Boulevard 7300 Biscayne Blvd, 7301 Biscayne Blvd. 7310 Biscayne Blvd. 7320 Biscayne Blvd. 7326 Biscayne Blvd. 7350 Biscayne Blvd. 7400 Block of Biscayne Boulevard 7400 (7400-04) Biscayne Blvd. 7411 Biscayne Blvd. 7414-18 Biscayne Blvd. 7420 Biscayne Blvd. 7422 Biscayne Blvd. 7481 Biscayne Blvd. 7500 Block. of Biscayne Boulevard Office 1964 Vagabond Motel 1953 Office 1956 Office/Residential 1953 Former hotel 1940 Sunshine Motel 1939 Retail 1936 The Royal Motel 1951 Retail 1948 Office 1952 Royal Budget Motel 1952 Former Motel 1948 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Contributing Contributing Non -Contributing Contributing Contributing Contributing Contributing Contributing Contributing Contributing Contributing Non -Contributing 7501 Biscayne Blvd. Restaurant 1966 Non -Contributing 7521 Biscayne Blvd. Office/Apartment 1948 Contributing 7550 Biscayne Blvd. Retail 1935 Contributing 7541-51 Biscayne Blvd. Retail 1952 Non -Contributing 7600 Block of Biscayne Boulevard 7601 Biscayne Blvd. (aka 615 NE 76th Street) ** Indicates a Permit has been applied for prior to the designation process [361 Former gas station 1939 Contributing 7610 Biscayne Blvd. Church 1951 Contributing 7613-17 Biscayne Blvd. Mixed Use 1937 Contributing 7625 Biscayne Blvd. Apartment 1940 Contributing 7630 Biscayne Blvd. School 1955 Contributing 7644-48 Biscayne Blvd. (aka 592-98 NE 77th Street) Retail 1942 Contributing 7657 Biscayne Blvd. Duplex 1935 Non -Contributing 7699 Biscayne Blvd. Residential 1935 Non -Contributing ** Indicates a Permit has been applied for prior to the designation process [361 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk [36] Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk �- rt ww- _-�,E ' r THx- MS. 59TH ST17 �Vv T.,{� jj I I "I .,�� � �' L 1�Ye 58tH 5T .�.:� �--� sem• t!/ r+ F9 [37] rrmrur� O In �4 �FORY \v Ni >, U BSB Oe V/�'J �'+ T REAL PROPERTY RECORD rowD CARPS CITY OF MIAMI, FLORIDA TAX ASSESSOR _ ___-- -_ TAc MAF ra eF� DESCRIPTION rq� ' �-- — _1rAf__ ) __ AODq[6/ PY!IV SECTION TOWNSHIP RANGE . BAYSBORB PLAZA NO. 3. PB 41 PO 73 LOT 1 RIA 5 2-08-1441 Ic O 06--70r —3FOUNDATION �r-- fi• ______ DIAGRAM OF STRUCTURES %Q•S- a �. . . .- . \ •` YI W 3iZ LR `,1 £ eI I 4.3 I ,d.5 � 4.324,•L — -- ' B K SDR I 5''• 'L�i� LR �I •11/r� ' - 13R K LA j , �^--- -, • {• . c_ c 8 F��re�• -C' .cint I C L • •. �1y8 I• P4Y;0 ,� n r� LR . 4 I. I '3 tR. FK I . . I. •, L1; b- _ H �rti O� L Lim•=-� 8 K • • YET Fi >adlY B'Z LR Te [uA,aFI C •� FD 1:.L AFTT :I rs d 1 I R • ' 1 J = -,* � • 11.x} - ''•i _ •FIRST FLOC+TZ ?lAly %a' • ' .(. $ECOND FI`fIC�IC JA�,E , /2. CxC.C.PI AFT. .OYER LOBBY(, L • e e STREET - z _ ■ _ ■ Y ; Y < Y f =-. F= V t z ` O Z p < = 9 O a( 0 O 3a �xI U f O f � r 3 U AD r O < O r► i Y a O Y t Y J C i f _ a KIND OF STRUCTURE USE CONSTRUCTION lcomo. I cLAes TYPE ^ __ e EXTERIOR FEATURES EXTERIOR WALLS AND FI NIGH ROOF TYPE ROOF MATERIAL z G m A u o r j F z Z U Y y u O L■ m O I< y z J U 3 L L z ° ~ ZZp U O O 3 J F i Y D r u 3 J ` Y Z z U V Y O O r u o a AA i F h 2 U '3p g u y g m Y° V 2 0 Y u z g i)t 14 pp= f# o z ■p O O 3 s ° < p B z z p 1• ~ Y Z U: c S O <F D V i O p ► 3.o G O •T 2 N Z i a S M■ V < ■ 0 2 S 4i' i ■ ■ L x e. r i 3 z D L p tl ,' r J O F ` J ( j 9Z NO ■■ O Z i V U /s ✓ EXTERIOR FEATURES INTERIOR FEATURES EXTERIOR TRIM = I D r A ` z m O 2 < C == 2 z S r i i o i I°, A li ✓ S WINDOW■ O < 3 i yF ✓ DOORS - PORCHES n b J r! I' c O < O = 3 x C 3 u I/ ✓ u z '°' r z z ¢ o` v US f BASEMENT FLOOR TYP FLOOR MATERIAL WALLS ° °r i, r x z Ic J Z u L► i t r i a 0 r 13 i■ 3 i °u a p g °o A. 3 a i r p D$ r 3p a= g i i u u If N r 9 : p z i 1 1 1 - y ` u <o D 9 3 3 — INTERIOR FEATURES Z D JA. AD A ald FINISHTRIM ..._ ATIC PLUMBING PLUMBING FIXTURES WIB60 HEATING LIGHTING ROOMS C = °u S L c y p 0 3 3 C °a : < r x= ✓ a .°I e = '► _ O :` ` : ° z o ] z r O u c ; a j z ° r r ti = o < i 0 9 o 0 z D x u■ I I Y 8 ]-I 2 a O z> r a z° ° t r• t i y ■ 3 " i ° i o o °x c o S. r■ I a u z zl f i u urll y 'J r U3 o o° z r►• ° �R 'J <' r G o V' LIVING ROOM DINING ROOM ezoRooM6 . ewTN T Aura TOTALS �.". B UILDING COMPUTATIONS AMouMT EQUIPMENT A B C 10• 211=6 SQ. FT. HT. CUBIC FT. RAT[ COST COM ►MD. a 6L=VATORS A 3r7X 1;2. 47 .1// d3 [rRINIS LER 6Y6}[r 3,^X24,(" %3 SOLAR H[AYM 3.7 , J7 - LAUNDRY TRATE j. ri y ,rQ• AIR CONDITIONING 13.2 x 7c.1 J 6TORM =NVrTaR6 2: �, j :� J • % / INSULATED WAW 2-0. XS (_; 1 / 3 S INBULAT[D Roo► -, � e_.'.:. � • �9.7d SQLfr A /p p 1 curr6R AND D°wrevouT ". ',, P •7-f0. /CO NO. OF ELECTRIC GUTLXTII �7v V 1-il �a i�0 %OS •'� - j No. or gL[CTRIC►1=T11Rss TYPE OF WIRING OCIIn �� • •� �i W ROYONT IRON A REMARKS El[ 8— �c'. _ .a /-I'r`••••• • AA? BUILT-IN CRbI M1tYR hfi�F+� ✓ Ct--M c Submitted into the public On 05-25-20 LAND FIEATLMES LAND COMPUTATIONS 1� _ LAmo BUILDING TOTAL TAEAOLE WATER REGULAR CORNER IRREGULAR TRIANOLL N RG[R AMOUNT YEAR VALUE VALUE VALUE CHARGE VALUE REASON FOR CHANGE FROM DEPTH D. I. A. 1. I. % C. 1. I. C- L. 1947 _ U.T 1948 y' 1949 W 1951 1952 v PAVED ALLKT1969 CURSING SIDEWALK WHITE WAY " STR[ST LIGHTING SEAWALLS MAN. SEWER STORM MKWKR TOPOGRAPHY LANDSCAPING WELL LAWN OVA-M-LE'RI 20N[D FOR 1994 1998 1966 1957 1938 1969 1960 1961 1962 1963 - 1964 t96a 1966 1967 R-1 SUMMARY 1945 R-2 AMOUNT AMOUNT AMOUNT AMOUNT AMOUNT AMOUNT R-5 6EOSM LAND VALUYE RATING 0-1 [NNANCING % AiroIOrtD Y.n Ftin 0-2 D[TRAmNG % y 1 CONSTFILCTION 9•a N[T LAND VALUE 2FOUNOATION 1-1 BUILDINGS 3 RASEMEaT 1-2 ITEM AMGUNT 4 EILTERIOR WAITS A` _ _ a 5 ROOF MIMCKLLANKOUN B a F100R5 71NTERI0E ■CHOOY C ._.,._ CHURCH[■ R PLVMWW7 SNOPS GROSS ELD9. VALDK _ 9 HEATING TRANSPORTATION KNHANGNG % - 10 ELECTNICRT 11 MISC. O]ST. TRKNO DETRACTING % 1 NET SLOG. VALUE 12 TOTAL VALUE TOTAL UNIT COif yv 1 MARK[T—INCOM[—MISCKLLANKOUE DATA _ BUILDING PKRMITM MO. DATE RIND AMOUNT REMARKS: Sl DZ - e Y1 RTVF15D COQY QF Tlrt T'^ ����Py+/�7 GW + I� ATRUE A T� 1 •— i CORDS ON F THE 'CITY OF M LQA ATE: T. FIF' Do - 'Ge W. YEAR LAIR ANNUAL OMOef "IK ARM", TCS: RATE - -- GI.TAII.. VALUK- NAL[. Ls<OCfINATE PALE DINEMAeIIr. DETRACTING IMFl. OWNERS CSTIMAT[ ►51R NARAEr VALIEK — MORTGAGE FtRit IRSUMANCKnil (s) 7 PZ.15 City Clerk !• / �� � f rte. 7" Submiffed intot e public ecor or item s) PZ.15 On 05-25-2017. City Clerk DESCRIPTION REAL PROPERTY CITY OF MIAMI, FLORIDA RECORD TAX ASSESSOR CARDS _605"y"! 'SEC7iCi1 TOWNSHIP RANGE KIND OF STRUCTURE USE CONSTRUCTION COND. CLASS TYPE BAYSHCRE PLAZA WIT NO. 4 PB 42 PG 2 la e-rr,F- �� r LOT 17 BLK 5 13c 5, Tyr Ar! JrY s✓ '', s " ,�. c 2-08-1459 EXTERIOR FEATURES FOUNDATION EXTERIOR WALLS AHD FINISH ROOF TYPE ROOF MATERIAL 7GD DIAGRAM OF STRUCTURES .. . . • • = Y ~ aG C u u zi• = 3O tl GD 0O z u O U 7 ■ Yu a U3f O >U p Z V O ° O O 3:InU D zo r < °O e O p J ai ° C ■ D O3p Z >] iZ ► iZ Z I J< i i J Cz v Z r= S Z l o O J a <J i ■ O I ■3 D 6 jJ zU J = F O= V • • EXTERIOR FEATURES INTERIOR FEATURES EXTERIOR TRIM WIII KOOW DOORS I PORCHES BABEMENT FLCIOR YTP FLOOR MATBRIAL WALLS •... Z S B < DO o i< z<° o° a o G S¢ 3 ■ = M l z O z '-- o z z o L< 6 U 3 i z± p< o o G_ = ¢ a a D a° D¢° z; Y O = U z i O i w z► W i `U s • z o z o< U a 6 \ ° i Z►° _° 7 O ?; C y a r J• u z■ o ■ U ■ o° a° 3 3< i= t o< ■ S y a i z z o Y U ° D s. a• z S l u pq s O 7 a D O o< IL EFT-- 11H1±1 11 1 .. • • • • • • . • . C INTERIOR FEATURES FINISH TRIM ATTIC PLUMBING PLUMAING FIXTURES wIRBO __ _ _ HEATING LIGNTIIIa ROOMS C • • Y =So au< o O 3 o O 3 °a Jr a= Y= p°o O ° C a OK z = R wi{{3 pI• F 3 dis ia zCO u oz i v u ■ I. U • u • MB o UU r1 GJ f O LI1IN6 ROOM D-ROOM INING ■3aJ f • . ' O jm KrtCR[N !! ■EORoo■BC % O BATH ! A I I !9 v >. ► AUTO • • TOTALS BUILDING COMPUTATIONSAMOUNT 1 EQUIPMENT Ala IC • • • • • • • • • • • I10. stzrA B4. F1?. I Mr. CUBIC FT.y. RA -MI COfr ro CON FWD -- C"VATORf SPRINKMR BYSTEM . . • . QOLAR NEATER j(kao EOD Fr i. la inl A� LAunD•r TRATE • • o" AIR CONDITIONING Idd •1 STORM aNurrx" Zl .. I[r�'J IN■UUT[D WAW . . . . • ^,1.T -Y ; aAM/: 17�+'G _ _ _ `.. G♦♦•y �+; •.••1 •j d0� Infu"TCa ROOF GUTTER AND DOWNSPOUT STREET Z +� '�RO� �9 dv %; 1 �JJ Ellal ^ NO. OF EI.[LTRIC OUTLCTf J' p z3:r 9 3 p • y U I. 2 7 i < l< r p Vw a O N Y J J B ` ■ Y < 6 Z O S O a a Q F O < z ■ J F ■ r a F O U p r O O Y t [ y r ` ■- r t 3 r �• D Z p u to 1 ,% J x �"/u '3 3JE .PO /� a I NO. OF CL[CTRIC FIZTUR[f y a f i+ --- _ _• n,!'a }7. a. di V �G'',J a TV—OF wIN1N6 Jf%]1I/. %drT --- - 7i.t 0 I• fie /h D WROVONT IRON qq n a REMARKS BUILT-IN CAOFNETf Submiffed intot e public ecor or item s) PZ.15 On 05-25-2017. City Clerk LAND FEATURE9 I LAND COMPUTATIONS WATER REOULAq COgN[R IRREGULAR TRIANGLE MERGER OAS PRONT DEPTH D. P. A. T, P, X C. 1. F. E. L. UNIT ELECTRIC TELEPHONE PAVED I"KET IMPROVED ST. UHIMPRDVEO ST• PAVED ALLEY CURBING SIDEWALK WMTR WAY STREET LIGHTING - SEAWALLS VAN. SEWER STORM SEWER TOPOGRAPHY LANDSCAPING WELL LAWN SPRINKLES , ZONED FOR R•S SUMMARY 1945 R•2 AMOUNT AMOUNT AMOUNT AMOUNJAMOUHT AMOUNT R-! 0-1 B-2 B-] 1.1 1-2 CBO/1 LAND Yw W E ENHANCING X DETRACTING - X MR LAND VALUE ` BUILDINGS ITEM AMOUNT A MIBCKLUMBOU/ B SCHOOLS c CHURCHES SHOM SSOSS SLAV. VALU[ TRANSPORTATION DIST. TREND ENHANCING X DETRACTING X MET BLDG. VALUE I TOTAL VALUE MARKE—INCOME—MISC[LLANSOUB DATA YEAR FAIR ANNUAL GROSS _ FAIR ANNUAL NETT un CAPITALIZED VALUE SALE. L[61TIMAn SAL[ OTHERNISF. D"RACTINO LHFL. OWNER'S FETIMATK FAIR NARKEY VALUE MORTGAGE F.RE INSURAMCE AMOUNT YEAR 1947 1946 1949 1950 1951 1952 193 1896 toss 1968 1957 1958 1959 1960 1961 1862 1963 1964 I. 1966 iB 67 I CONSiRUCLIDN _ 1 EXTFSIIOR 9TU5 5 ROpi _ .._. 6 FLOODS Submitted into the public I(ecord tor i em ) PZ.15 On -201 City Clerk LAND BUILDING TOTAL =A.A..-VALVC VALVE VALU[ CHANGEREA¢ON FOR CNANGE � 10 FLFL—IUCQY ` 11 MISG 12 TOTAL •.MIT Lti!•'T BDILDINa P[R ITS DAT[ RIND AMOUNT REMARKS. HIS IS A TRUE �,AQD CERTIFIED DOPY QF ECORDS ON I~ L IN THE CITY OF M- Y: I DATE: 7 A&V Depar#men - Off . cG hone: o Submitted i o the public 09 - 1459 Record for it (s) PZ.15 ,BAYSHCRE PLAZA UNIT NO. 4 PB 42 PG 2 it M LOT 17 BLK 5 e�wv 2 On 05-25- 017 City Clerk 2-08-1459 t Minto District resignation Report Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk The following properties appear on the map accompanying the designation report but are not individually listed within the report. 5100 Block of Bisca •ne Boulevard 5125 Biscayne Boulevard 5200 Block of Biscayne Boulevard 5220 Biscayne Boulevard 5300 Block of Biscayne Boulevard 5400 Block of Biscayne Boulevard 5445 Biscayne Boulevard 5400 NE 4 Court 5500 Block of Biscayiie Boulevard 5501 Biscayne Boulevard 5900 Block of Biscayne Boulevard 5900 Biscayne Boulevard 6000 Block of Biscayne Boulevard 592 NE 60 Street 6300 Block of Bisc.:a►,nc Boulevard 6399 Biscayne Boulevard 610 NE 64 Street 6 400 Block of Biscayne Boulevard 6447 NE 7 Avenue 7000 Block of Biscayne Boulevard 7021 Biscayne Boulevard 7029 Biscayne Boulevard 7200 Block of Biscayne Boulevard 7265 Biscayne Boulevard 611 NE 72 Street 7400 Block of Biscayne Boulevard 7421 Biscayne Boulevard Submitted into the public Record for item(s)_ On 05-25-2017 . 7460 Biscayne Boulevard 7500 Block of Biscayne Boulevard 7500 Biscayne Boulevard PZ.15 City Clerk Comparison of 2003 Janus Research FEC Corridor Documentation Forms and 2006 Designation Report approved by the HEP Board 5000 Block of Biscayne Boulevard 5020 Biscayne Boulevard 5040 Biscayne Boulevard 5046 Biscayne Boulevard 5061 Biscayne Boulevard 5100 Block of Biscavne Boulevard 5125 Biscayne Boulevard 5120 Biscayne Boulevard Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk FEC Corridor Desi nation Report Contributing Non -Contributing Contributing Non -Contributing Contributing Non -Contributing Non -Contributing Contributing Contributing Non -Contributing Contributing Non -Contributing 5400 Block of Biscavne Boulevard 5402 Biscayne Boulevard Non -Contributing Contributing 5800 Block of Biscavne Boulevard 5800 Biscayne Boulevard Non -Contributing Contributing 5841 Biscayne Boulevard Non -Contributing Contributing 6400 Block of Biscayne Boulevard 6444 Biscayne Boulevard Contributing Non -Contributing 6600 Block of Biscayne Boulevard 6600 Biscayne Boulevard Contributing Non -Contributing 6900 Block of Biscayne Boulevard 6925 Biscayne Boulevard Non -Contributing Contributing 7000 Block of Biscayne Boulevard 7011 Biscayne Boulevard Contributing Non -Contributing 7015 Biscayne Boulevard Contributing Non -Contributing 7100 Block of Biscavne Boulevard 7101 Biscayne Boulevard 7150 Biscayne Boulevard 7200 Block of Biscavne Boulevard 7200-08 Biscayne Boulevard Non -Contributing Contributing Contributing Non -Contributing Non -Contributing Contributing 7300 Block of Biscayne Boulevard 7320 Biscayne Boulevard 7600 Block of Biscayne Boulevard 7601 Biscayne Boulevard 7630 Biscayne Boulevard 7657 Biscayne Boulevard Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Non -Contributing Contributing Non -Contributing Contributing Non -Contributing Contributing Contributing Non -Contributing File Number: 13-01438 City of Miami Legislation Resolution Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN MORNINGSIDE CIVIC ASSOCIATION, INC., A FLORIDA NOT-FOR-PROFIT CORPORATION, WHICH FOR ALL PURPOSES OF THIS AGREEMENT INCLUDES THE FOLLOWING INDIVIDUAL APPELLANT MORNINGSIDE NEIGHBORHOOD RESIDENTS IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES: ROD ALONSO, ROB STEBBINS, SCOTT CRAWFORD, AND ELVIS CRUZ, JOINTLYAND SEVERALLY; BAYSIDE 5101, LLC, A FLORIDA LIMITED LIABILITY COMPANY ("BAYSIDE"), AS SUCCESSOR IN INTEREST TO CHETBRO, INC., A FLORIDA CORPORATION; AND THE CITY OF MIAMI, FLORIDA, A MUNICIPAL CORPORATION ("CITY"), TO RESOLVE ALL OF THE CONCERNS, ISSUES, CLAIMS, RIGHTS, AND ENTITLEMENTS RAISED BY MORNINGSIDE, BAYSIDE, AND THE CITY WITH RESPECT TO THE DEVELOPMENT RIGHTS OF BAYSIDE. WHEREAS, it is in the best interests of the City of Miami ("City"), its residents, and neighborhoods adjacent to the properties described herein to amicably resolve certain land use cases identified below by approval, execution, and compliance with this Settlement Agreement; and WHEREAS, there has been several years of litigation relative to the proposed height of a project to be constructed at 5101 and 5125 Biscayne Boulevard (collectively, "the Property") that was originally approved by a Class II Special Permit ("Special Permit") in 2004, which was appealed by Morningside Civic Association, Inc. and individual appellant/neighborhood residents Rod Alonso, Rob Stebbins, Scott Crawford, and Elvis Cruz, in their individual capacities (collectively referred to as "Morningside"), to the Zoning Board ("the Board") which denied the appeal and affirmed the granting of the Special Permit; and WHEREAS, Morningside further appealed the Board's decision to the City Commission which in part granted the Morningside Appeal by reducing the height of the project to 35 feet; and WHEREAS, this was followed by various years of litigation regarding the height of the project to be constructed on this Property in the Circuit Court Appellate Division and the Third District Court of Appeal in a series of successive, related cases and appeals initially styled as Dougherty v. City of Miami, et. ai.; and WHEREAS, in its last ruling, the Third District Court of Appeal ultimately held that Chetbro, Inc. ("Developer") was entitled to develop a project on this Property at a, height of 87.4 feet as was originally approved in the Special Permit; and WHEREAS, the Property is located within the City Historic District known as the Miami Modern ("MIMO") Historic District; and WHEREAS, this Settlement Agreement is in the best interests of the public, the City, the City of Mia ini Page I of 2 Fife Id: 13-01438 (Mersion: 1) Printed On: 1212612013 Submitted into the public Record for item(s) On 05-25-2017 File Number: 13-01438 PZ.15 City Clerk neighborhood and its residents as, by virtue of this settlement, Bayside 5101, LLC, ("Bayside") as successor in interest to the Developer who will construct the project on this Property, the City, and Morningside as described above have stipulated and agreed that the Developer will adhere to the 35 foot height limit for this Project provided for in current regulations despite various court rulings holding the Developer is lawfully able to build at a greater height; and WHEREAS, the Developer has agreed to abandon the Special Permit and any entitlements pursuant to the Special Permit as part of this settlement; and WHEREAS, the Developer is entitled to and the City has agreed to comply with the requirements of Section 23-6 of the Code of the City, as amended; for the Transfer of Development Rights; and WHEREAS, the parties are releasing one another from all claims and actions regarding the height and intensity of the project on this Property and related issues including private property rights' claims and will discontinue and dismiss all pending appeals or proceedings regarding this Property, ending years of time consuming, uncertain, and expensive litigation regarding this Property; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as fully set forth in this Section. Section 2. The City Manager is authorized{1) to execute a Settlement Agreement, in substantially the attached form, between Morningside Civic Association, Inc., a Florida not-for-profit corporation, which for all purposes of this agreement include the following individual appellant Morningside Neighborhood residents in their respective individual capacities: Rod Alonso, Rob Stebbins, Scott ---Crawford,-and Elvis -Cruz, -jointly and severally, Bayside, as successor in interest to the Developer; and the City, to resolve all of the concerns, issues, claims, rights, and entitlements, raised by Morningside, Bayside, and the City with respect to the development of Bayside. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. {2)___., APPROVO�FORM aD CORRECTNESS: _ e VICTORIA ME EZ_ CITYATTO Y Footnotes: {1) The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. {2) If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miditti Page 2 of 2 File Id. 13-01438 (Version: 1) Printed Orr: 12/2612013 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 _,_,_ City Clerk CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Honorable Mayor and Members 94 the City Commission FROM: Victoria M6ndez, City Atto DATE: December 26, 2013 RE: Proposed Resolution for City Commission Meeting — January 9, 2014 Authorizing the City Manager to Execute a Settlement Agreement File No. 13-01438 The attached Resolution is being presented for consideration at the January 9, 2014 City Commission meeting. The City Attorney recommends the City Commission adopt this Resolution and authorize the City Manager to execute the attached Settlement Agreement which is in the bests interests of the City and its residents. In brief, this Settlement Agreement will amicably conclude and resolve a decade of litigation which involved the height of the project located at 5101 and 5125 Biscayne Boulevard, Miami, Florida ("Property"). This project was originally approved in 2004 by a Class II Special Permit. The City Commission, in an original appeal by the neighborhood, reversed a Zoning Board decision approving the project at 87 feet and reduced the height of the project to 35 feet. In various cases contesting the reduced height of the project, the Third District Courtly of Appeal determined that the Developer is legally entitled to construct a project at the original 87 foot height. This proposed Settlement Agreement benefits the neighborhood, the residents, and the City because the Developer has voluntarily agreed to limit the height of this project to 35 feet. The Developer will use the Transfer of Development Rights Ordinance codified in Section 23-6 of the City Code to sell or transfer its "excess" intensity -to a T-6 Transect Zone. The parties to the Settlement which includes the Developer, the neighborhood civic association, certain neighborhood residents, and the City will all discontinue, dismiss, and discharge all claims, appeals, actions, and controversies among one another regarding the Property. All parties will bear their own respective fees and costs. c: Johnny Martinez, P.E., City Manager Julia Hernandez, Agenda Coordinator Attachment(s) Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is entered into between (1) Morningside Civic Association, Inc., a Florida not-for-profit corporation, which for all purposes of this Agreement includes the following individual Appellant Morningside Neighborhood residents in their respective individual capacities: Rod Alonso, Rob Stebbins, Scott Crawford, and Elvis Cruz, jointly and severally, (collectively referred to for both the Morningside Civic Association, Inc. and the named individual Appellants as "Morningside"); (2) Bayside 5101, LLC, a Florida Limited Liability Company ("Bayside"), as successor in interest to Chetbro, Inc., a Florida corporation ("Chetbro" or "Developer"); and (3) the City of Miami, a Florida municipal corporation ("City"). Morningside, Bayside, and the City are collectively referred to as the "Parties." RECITALS WHEREAS, Bayside is the owner of the properties located at 5101 Biscayne Boulevard (Folio No. 01-3129-018-00702) and 5125 Biscayne Boulevard (Folio No. 01-3219-017-0090) located in the City of Miami, Florida, which are more particularly described in the Warranty Deed attached hereto as Exhibit "A", (collectively, the "Property"); WHEREAS, on or about July 21, 2004, the Director of the City's Planning and Zoning Department, pursuant to Article 15, Sections 609.3, 1512, and 923.2 of City Zoning Ordinance 11000, issued Class II Special Permit No.2003-0309 ( "Class II") to Chetbro; WHEREAS,the Class II authorized the new construction of a mixed use building at the Property to include 63 residential units, 87.4 feet in height, 8 floors, 89 parking spaces, and 87,275 square feet of residential floor area (1.72 FAR), as more particularly described in the attached Exhibit "B" and as analyzed for Gross Floor. Area ("GFA") in the plans entitled MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk "Bayside Motel Approved Project Floor Areas," dated December 2, 2013, prepared by DB Lewis Architecture and Design attached hereto as Exhibit "C` WHEREAS, Morningside appealed the issuance of the Class II to the City's Zoning and Appeals Board ("Zoning Board") and on October 4, 2004, the Zoning Board issued Resolution ZB 2004-0928 denying Morningside's appeal; WHEREAS, Morningside then appealed the Zoning Board's decision to the City Commission and, on November 18, 2004, the City Commission adopted Resolution 04-01208 reversing the decision of the Zoning Board; WHEREAS, the Developer appealed to the Appellate Division of the Eleventh Judicial Circuit Court in and for Miami -Dade County and on July 14, 2006 the Court quashed the decision of the City Commission and remanded the matter to the Commission for further proceedings; WHEREAS, on February 28, 2008, the City Commission granted the Class II subject to a further height reduction for the project of 35 feet from the previously approved height; WHEREAS, the Developer appealed again to the Appellate Division of the Eleventh Judicial Circuit Court in and for Miami -Dade County and on November 13, 2008, the Circuit Court affirmed the Miami City Commission's decision; WHEREAS, the Developer appealed to the Third District Court of Appeal of Florida and in an opinion dated October 7, 2009 and reported as Dougherty v. City of Miami, 23 So. 3d 156 (Fla. 3d DCA 2009), the Court of Appeal granted certiorari and quashed the decision of the Circuit Court remanding back to the City Commission; 2of19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk WHEREAS, on remand from the second appeal, the City Commission conducted a de novo review and on May 27, 2010, again imposed a 35 -foot height limitation on the development of the Property; WHEREAS, upon appeal, the Developer was denied relief by the Circuit Court and appealed to the Third District Court of Appeal of Florida and, in an opinion dated April 25, 2012 and reported as Dougherty v. City of Miami, 89 So. 3d 963 (Fla. 3d DCA 2012), the Court of Appeal granted the Developer's writ of certiorari and quashed the decision of the Circuit Court; WHEREAS, upon remand from the Third District Court of Appeal, the City Commission approved Resolution No.13-0013 denying Morningside's appeal and affirming the decision of the Zoning Board, in accordance with the opinion of the Third District Court of Appeal, approving the Class II for the development of 63 residential units, 87.4 feet in height, 8 floors, 89 parking spaces, and 87,275 square feet of FAR, consistent with the plans attached hereto as C.\iuliit; 13 and C, WHEREAS, the existing two-story historic structure (a/k/a Bayside Motor Inn Motel) located on the Property consists of 13,511 square feet; WHEREAS, the Miami Modem/Biscayne Boulevard Historic District ("MiMo District") was established by the City Commission on June 6, 2006; WHEREAS, Morningside and the City have raised concerns regarding the potential impact of the Project on the MiMo District and surrounding neighborhoods; WHEREAS, Bayside recognizes that Morningside and the City have concerns regarding the potential impact of the Project on the MiMo District and surrounding neighborhoods; 3of19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk WHEREAS, Bayside wishes to mitigate the Project's perceived impact on the MiMo District and surrounding neighborhoods by agreeing to certain conditions and knowingly and voluntarily forgoing certain development rights as granted in the Class II; WHEREAS, the Parties amicably desire to resolve all of the concerns, issues, claims, rights, and entitlements raised by Morningside and the City with respect to the development of the Property, including the height of the proposed building as approved in the Class II; WHEREAS,on October 22, 2009 , the City has legislatively instituted, in the applicable sections of Chapter 23 of the City Code and the Miami 21 Zoning Ordinance, a height restriction of 35 -feet for new buildings or structures developed within the boundaries of the MiMo District; WHEREAS,the City has created the Transfer of Development Right,; ("TDRs") program, set forth in Section 23-6 of the City Codeto encourage new construction and improvements to existing structures located within the boundaries of the MiMo District and to redress the loss of property rights to those property owners located within the MiMo District by the imposition of the 35 -toot height limitation; and, NOW, THEREFORE, in reliance upon the recitals stated above, and in consideration of the mutual covenants, conditions, and agreements contained herein, each Party hereto, on its own behalf, and on behalf of the entities specifically noted or referred to herein, intend to be legally bound, stipulate, and agree as follows: 1. Recitals. The foregoing recitals are true, correct, and incorporated herein by reference and no Party shall raise, and each Party expressly knowingly and voluntarily waives, any defense to the enforcement of this Agreement based on any assertion that it is unenforceable for any reason whatsoever, including, without limitation, public policy considerations. 2. In consideration of the terms of this Agreement, the City agrees as follows: 4of19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk A. Release by the Ci#y. The City hereby releases, acquits, satisfies, and discharges Bayside and Morningside from any and all claims, demands, liabilities, debts, judgments, damages, expenses, actions, causes of action, or suits related to the issuance of the Class II and various related appeals, or any alleged violations of the City's Laws and Ordinances that the City may have, may have had, or does now have to bring against Bayside and Morningside which involves this Class II Permit that was granted for the Property. B. Transfer of Development Rights. The City agrees that in order to encourage the preservation of the historic Property and to minimize the impact of the development of the Property on the MiMo District and surrounding neighborhood, as permitted under the Class II, Bayside will be allowed to transfer the available unused development rights of the approved Class 11 in exchange for Bayside's withdrawal and abandonment of the Class Il Special Permit and forfeiture of rights to issuance of a building permit pursuant to the Class II. Specifically, the City agrees to issue a TDR Certificate of Eligibility ("COE") and Certificate(s) of Transfer ("COT"), subject to the following: (a) The Property qualifies as eligible contributing resource for the purposes of participating in the T DR program. (b) The TDR process will go through the standard reviews for the issuance of the respective COE and COT as appropriate. To the extent required by Chapter 23 of the City Code of Ordinances, as amended, Bayside will apply to the Historic and Environmental Preservation Board ("HEPB") for 5of19 MIA 183602800x7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk approval of the rehabilitation project prior to receiving any TDR certification. (c) The Property is legally vested under Zoning Ordinance 11000 and the SD - 9 zoning designations for development of 118,755 GFA of structure. (d) The City recognizes the additional costs and requirements associated with the rehabilitation of this historic property and, in the unique circumstances and extensive litigation over the Property as set forth in this Settlement Agreement, shall in this particular instance, permit a multiplier of not more than four (4.0) times the unused floor area or unused development rights in order to calculate the amount of TDRs allowed to be transferred to an eligible receiving site. (e) The City agrees that the unused available development rights for the Property will be issued pursuant to a COE for a total of not more than 459,528 square feet of unused available TDR for the Property, to be calculated as follows: (i) TDR Multiplier. 118,755 square feet of GFA Pursuant to Class II x 4.0 TDR Multiplier = 475,020 square feet. (ii) Total Unused Development Remits Available for Transfer: 475,020 square feet minus 15,492 square feet of existing historic structure located on the Property = 459,528 square feet of Total Unused Development Rights Available for Transfer. (iii)In all other respects, Bayside will comply with all requirements, conditions, safeguards, and stipulations of the City TDR 6of19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Ordinance, Section 23-6 of the City Code, which is deemed as being incorporated by reference as though set forth in full herein. 3. In consideration of the terms of this Agreement, Bayside agrees as follows: A. Release by Bayside. Bayside hereby releases, acquits, satisfies, and discharges the City, its officials and employees, and Morningside from any and all claims, demands, liabilities, debts, judgments, damages, expenses, actions, causes of action or suit related to the issuance of the Class II and various related appeals or any alleged violations of Bayside's property rights that Bayside may have, may have had, or may hereafter bring against the City and/or Morningside. B. Indeninitication of the City. Bayside agrees to indemnify, defend, save and hold harmless the City, its officials and employees from any claims, demands, liabilities, losses, causes of action of any nature whatsoever arising out of or in connection with the Agreement, the granting of the TDR COE, TDR COT, building permits, or any other approval or any part thereof, and from any past, present, or future development or use of the Property as referenced in this Agreement, and additionally from and against all costs, fees, expenses, liabilities, any orders, penalties, damages, judgments, or decrees which may be entered and from and against all costs, attorneys' fees (inclusive of trial, appellate, and administrative proceedings), expenses, and liabilities incurred in the defense of such claim or in the investigation thereof. 7of19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk C. Binding Agreement. Bayside expressly understands and agrees that this Agreement shall be binding upon Bayside, and also upon its heirs, successors in interest, or assigns and shall be a condition implied in any conveyance or other instrument affecting the title to the Property or any portion thereof. This Agreement shall be recorded in the public records of the Miami -Dade County by Bayside and its own cost and expense and shall serve as a covenant running with this Property. Bayside acknowledges that its representations and affirmations contained in this Agreement touch and concern the Property. Bayside will submit a certified copy of the recorded Agreement to the Planning Director within thirty (30) days of the date the Agreement is recorded with a copy to the City Attorney's Office. D. Discoutinuation of Appeais.Bayside further, on its own behalf and as the successor in interest or assignee of the original Appellants in the Circuit and Appellate Courts, Lucia Dougherty on behalf of Contract vendee J. Laurence Eisnenberg, Trustee hereby affirms to the City, its officials and employees and to Morningside that all appeals and proceedings styled Dougherty v. City of Miami and Morningside Civic Association, Inc., et al., Petitioners vs. Miami City Commission, City of Miami, et. al. (Circuit Court Appellate Division, 11th Judicial Circuit Case No. 13-055 AP) is included in this Agreement and is rendered moot upon final approval of this Agreement. The current appeal being pursued by Morningside relating to the Dougherty v. City of Miami will be dismissedwith prejudice 8of19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk by Morningside as it is also mooted by this Agreement. Any other Appellate, administrative, or trial proceedings that are related to the subject matter of this Agreement will be dismissed with prejudice with each respective party to bear its own costs and attorneys' fees. Each party to the current appeal currently pending between Dougherty and Morningside, as they are identified above, will bear their own respective costs and attorneys' fees. E. Withdrawal of Class 11 Special Permit. Bayside agrees that upon the issuance of the COE for the TDRs for the Property as set forth herein and in order to minimize the impact of the development of the Property, as permitted under the Class H, Bayside will withdraw and abandon the Class 11 Special Permit and knowingly and voluntarily forfeits and relinquishes its rights to the issuance of a building permit pursuant to the Class II. 1. Transfer of Development _Rights. Bayside expressly agrees to adhere to the requirements for the preservation of eligible historic resources using the provisions of the TDR Application process as req«ired under Section 23-6(8) of the City Code and any other applicable provisions in Chapter 23 of the City Code of Ordinances, as amended, including but not limited to the following: a. Bayside will transfer or sell the TDRs issued for the Property to an eligible receiving T6 zoned property; 9of19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk b. Bayside will provide an "existing conditions report" evaluating the condition of the Property; and c. Bayside will provide a "maintenance plan" for the repair and maintenance of those items that have been identified as deficient, deteriorated, or non-existent in the existing conditions report. 2. Bayside expressly agrees to file and record a restrictive covenant for the Property in a form acceptable to the City Planning Director or authorized designee and the City Attorney as to legal form and pursuant to the provisions of Section 23-6(11) of the City Code of Ordinances, as amended, within thirty (30) days of execution of the first Purchase and Sales Agreement for the sale or transfer of the Property's TDRs to an eligible receiving site. 4. In consideration of the terms of this Agreement, Morningside agrees as follows: A. Release by Morningside. Morningside hereby releases, acquits, satisfies and discharges Bayside and the City, its officials and employees, from any and all claims, demands, liabilities, debts, judgments, damages, expenses, actions, causes of action or suit related to the issuance of the Class II and various related appeals, or any alleged violations of the City's Laws and Ordinances that Morningside may have, may have had, or may hereafter bring against Bayside and/or the City, its officials and employees. B. Transfer of Development Right In exchange for Bayside's withdrawal of the Class II Special Permit and forfeiture of rights to a building permit and 10 of 19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk development of the Property pursuant to the Class li, Morningside will not oppose approval of this Agreement, Bayside's TDR application, COE, COT, or any other approvals required to complete the TDR applications for the Property as set forth herein, including any approvals that may be required from the City's HEPB and issuance of building permits for the renovation of the Property. 5. JurisdictionNenue. Each Party agrees that the Circuit Court of the Eleventh Circuit of Miami -Dade County, Florida shall have exclusive jurisdiction to enforce and/or interpret any of the terms and conditions of this Agreement, and may submit any disputes arising under this Agreement by filing an action at law with that court for determination in accordance with Florida law. In order to expedite the action at law under this section the Parties knowingly and voluntarily waive their rights to demand a jury trial in any action brought under this section. Each party shall bear its own attorneys' fees, providing, however, this does not apply if the City must institute an action to compel Bayside to indemnify the City pursuant to Section 3(B) of this Agreement in which instance Bayside shall pay the City's attorneys' fees. 6. Entire Agreement/Amendment, This Agreement, including its recitals, conditions, and releases contains all of the terms and conditions agreed upon by the Parties, relating to its subject matter, and supersedes any and all prior and contemporaneous agreements, negotiations, correspondence, understandings, and communications of the Parties, whether oral or written, respecting the subject matter of this Agreement. This Agreement may be amended or modified only in writing signed by all Parties hereto. This Agreement shall not be modified by any oral statement, communication, agreement, course of conduct, or by anything other than a writing signed by all the Parties. 11 of 19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 7. Successors and Assi,,,ik . This Agreement shall be binding upon and inure to the benefit of the respective successors, heirs, grantees, and/or assigns of the Parties. 8. AlItIlori/.atiCm, Each person executing this Agreement on each Party's behalf has been duly authorized to sign on behalf of the respective Party and to bind each Party to the terms of the Agreement. 9. NoII-:4d[IIission of 1,i abiIiIN,. The Parties agree that neither this Agreement nor anything contained herein shall constitute or is to be construed as an admission by the Parties of a violation of any federal, state, or local statute, any state or municipal code, or as evidence of any other liability, wrongdoing, or unlawful conduct. The Parties acknowledge that they have entered into this Agreement to avoid the costs and expenses of continued litigation and to settle disputed claims. 10. Notice. All communications concerning this Agreement shall be in writing by certified mail, return receipt requested (or by telex, telegram, or telecopy if properly confirmed in writing by certified mail, return receipt requested) and shall be addressed to the Parties and their representatives as shown below: If to Bayside: Lucia Dougherty, Esq. Carlos R. Lago, Esq. Greenberg Traurig, P.A. 333 Avenue of the Americas Suite 4400 Miami, Florida 33131 Telephone: (305) 579-0603 Facsimile: (305) 961-5603 doughertyl@gtlaw.com lagoc@gtlaw.com -and - Avra Jain 888 Biscayne Boulevard Suite 100 If to Morningside: Elvis Cruz 631 NE 57 Street Miami, Florida 33137 Telephone: 305-754-1420 E1visCruz@mac.com -and - Luis Fernandez, Esq. 2250 SW 3 Avenue Suite 303 12 of 19 MIA 183602800v7 If to the City: Johnny Martinez City Manager City of MiLM1i 444 S.W. ?"`I .Avenue Miami, Florida 33130 Telephone: 305-416-1025 Facsimile: 305-416-1019 johnn.yinartiner a',miami oy.com -and - Victoria Mendez, Esq. City Attorne7 444 S.W. 2° Avenue Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Miami, Florida 33132 Miami, Florida 33129 Miami, Florida 33130 Telephone: Telephone: 305-854-5955 Telephone: 305-416-1800 Facsimile: Facsimile: 305-854-5324 Facsimile: 305-416-5071 lfernandezlaw@aol.com vmendez@miamigov.com 11. Execu ioii.This Agreement may be executed by the Parties in counterpart originals with the same force and affect as if fully and simultaneously executed as a single original document. Fully executed duplicate originals of this Agreement shall be distributed to the Parties. 12. Effective Date.The "Effective Date" of this Agreement shall be the date this Agreement has been executed by all Parties. 13. Severability. If any section, part of section, paragraph, clause, phrase, or word of this Agreement is declared invalid, the remaining provisions of this Agreement shall not be affected. 14. No Third Partv Beneficiaries. Bayside, Morningside, Chetbro, and the City agree that it is not intended that any provision of this Agreement establishes a third party beneficiary giving or allowing any claim or right of action whatsoever by any third party under this Agreement. 15. City Coininission Approval.This Agreement requires the approval of the Miami City Commission. 16. Entire Agreement.This Agreement along with the attached Exhibits A, B, C and D which are made a part hereof, constitute the sole and only agreement of the Parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 13 of 19 MIA 183602800v7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk IN WIT SSREOF, the Parties have executed this Agreement. Ql�h - n IT" ATTEST: CITY OF MIAMI, a Florida Municipal (SEAL: Todd n-nan, Cit . Clerk) Corporation ("CITY") By: aL96- Jo y Marti z, PE Its: City Manager Dated: I —'2A— STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this 94 day of JMIt�� 11 201 by hv," 1Mo�h1%ez__.and , as the €ori r 'respectively, of CITY OF MIAMI, a Florida Municipal orporation who appeared before me and is personally known to me, or has produced as identification, and did to a an oat i. My commission Expires: � 0FE11A F- P€WZ CWKk'SSON N EE 108288 �t EiIF'fF1tiS: Auqunl�2.0 15 ass �+ro NdaY Pu�� APPROVED )AS TO LEGAL FORM AND CORRECTNESS: �` �Victoria Wndcz City Att ANA 183602800v7 NOTARY: Print Name: Notary Public, State of Florida at Large (Notarial Seal) 14 of 19 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk BAYSIDE 5101, LLC, a Florida Limited ATTEST: Liability Company ("Bayside ") (SEAL: By: Its: Dated: STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day A10 UI26 204 by .SA r � and as the a4 ;k�P, and respectively, of BAYSIDE 5101, LLC, a Florida Limited Liability Company, who appeared before me and is ger�ally known to me, or has produced as identification, and did take an oath. My commission Expires: NOTARY: Print Name:LG Notary Public, State of Florida at Large (NotariaLSeall MARISOL RODRIGUEZ Notary Public - State of Florida ,,� .•.= My Comm. Expires Sep 27.2014 Commission N EE 30092 15 of 19 MIA 183602800x7 MORNINGSIDE CIVIC ASSOCIATION INC., a li orida Non Profit Corporation By: Its: Dated: 1 It STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) ATTEST: (SEAL: Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk The foregoing instnallent was acknowl dged before me this 0 � day of T 201 t5y t? 'o P' ^ , as the C_ of MORNINGSIDE CIVIC ASSOCIATHYN INC., a Florida Non Profit Corporation whoar fore me and is personally known to me, or has produced s ide ification, and did take an oath. ,f,� My commission Expires: NOT,AR Print N/a �11411i111111�1l�j� NOtary Puplic, 81 pSE T cU' f���'�r !� � ErDMMI$�,f•, sir (Notarial,8-cal) r • 11frU lrI�� tF 0I11111N 16 of 19 MIA 183602800v7 of Florida at Large Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk PREPARED BY: THOMAS G. LEE, ESQ. BURTON & LEE 12555 Orange Drive, 4025 Davie, Florida 33330 Folio No. 01-3219-017-0090 and 1-3219-018-0070 WARRANTY DEED Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 111!111 �illl l�lll VIII sl��l VIII fll�l Ill! ILII CFN 21313Fi4904 343 OR 8k 28912 Pae 0249 - 2501 (2Pss) RECORDED 11114/2013 16:00216 DEED DOC TAX 12x600.00 SURTAX 91450.00 IiARVEY RUVI6 CLERK OF COURT MIAMI-DADE COUNTYr FLDRIDA THIS INDENTURE,, made this L4 day of November, 2013 between CHETBRO, INC., a Florida corporation, grantor, and BAYSIDE 5101, LLC, a Florida Limited Liability Company whose post office address is 888 Biscayne Boulevard, Suite 100, Miami, Florida 33132, grantee, WITNESSETH, That said grantor, for and in consideration of the sum of Ten Dollars and other good and valuable considerations to said grantor in hand paid by said grantee, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said grantee, and grantee's heirs and assigns forever, the following described land, situate, lying and being in Miami -Dade County, Florida, to -wit: Parcel 1: Lot 1, Block 5, of BAYSHORE PLAZA UNIT NO 3, according to the Plat thereof as recorded in Plat Book 41, Page 73, of the Public Records of Auami- Dade County, Florida. Parcel 2: Lot 17, Block 5, of - BAYSIiORE PLAZA UNIT NO 4, according to the Plat thereof as recorded in Plat Book 42, Page 2, of the Public Records of Aliami- Dade County, Florida. SUBJECT TO: Conditions, restrictions, reservations, limitations and easements ofrecord, ifany, but any such interests that may have been terminated are not hereby reimposed; and subject to- applicable zoning ordinances and taxes and assessments for the year 2013, and subsequent years, And said grantor does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever. 1 of 2 V Book28912/Page249 CFN#20130904343 Page 1 of 2 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk OR E3K 28912 FG 0250 LAST PAGE IN WITNESS WHEREOF, Grantor has -hereunto set grantor's hand and seal the day and year first above written. Signed, sealed and delivered in our presence: STATE OF FLORIDA COUNTY OF IMIIAMI-DARE CHETB INC. Florid corporation BY: EVCHAND, President 5600 Collins Avenue, Apt. 11 U Miami Beach, Florida 33140 BEFORE ME, the undersigned authority, personally appeared ASWIN DEVCHAND, as President of CHETBRO, INC., a Florida corporation, who executed and acknowledged before me that the foregoing instrument was executed freely and voluntarily for the purposes therein expressed, and who is personally known to me or who produced a drivers license as identification, WITNESS my hand and official seal this * /R day of November, 2013. ifiOMlS Q. LEE w k MY COMMIS81ON I EE 109149 ATARY PUBLIC `r EXPIRES: Jolt 19, 2016 My Commission Expires: rar v.$' Bardd Ther Bpdxl Halery B 2 of 2 Book28912/Page250 CFN#20130904343 Page 2 of 2 18269"4756 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk I of 2 Aatge■ 9 a R 4 5 0 3 3!$ 1498 SEP. 11 09145 DMETWE 4.260.00 SURTX 31195.00 HARVEY MNIHi CLERK DADE COUNtYr FL Prepared by and return to: M. Keiih Marshall, 8sq . Southeastern Title Company 10305 Biscayne Boulevard- Suite 300 Aventura, Florida 33160 Folio Nos.: 01-3219-016-0070 01-3219 017-0090 TMS INp&vrURS, made this gf14 day of September, 1998, by S.R.F., IHC., a Florida Corporation (hereinafter referred to am QRMMR) , located at 5101 Biscayne Boulevard, Miami, Florida 33137, to CHETBRO, INC.$ a. Florida Corporation, (hereinafter referred to as GR21=3) , located at 5101 Biscayne Boulevard, Miami, Florida 331370 WITNESSETH, that the GRANTOR, for and in consideration of the sum of $10.00, in hand paid by the GRANTEE, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the Paid GUNTE3R, &Ad GRANTER'S eucc7eaeore and aeaignrs forever, the following described land, nituate, lying and being in Dade County, Florida where property is located, to wit: Lot 1, Block 5, of SAYSHORS PLAZA UNIT N0. 3, according to the Plat thereof, as recorded in Plat Book 41, at Page 73, of the Public Records of Dade County, Florida, and Lct 17 Block S, of BAYSHORB PLAZA UNIT NO. 4, nc-cording to the Plat thereof, as recorded in flat Book 42, at Page 2, of the Public Records of Dade County, arida. ?hie amMsr nOt is sabjeet to the follaaing: 1. Real estate taxes for the year 1996 and subsequent yearet 1 Submitted into the public Record for item(s) On 05-25-2017 2 o 7rzggp Z. Applicable zoning regulations and ordinances. 3. All of,the covenants, agreements, conditions, restrictions and easements of record, if any, which may now affect the aforedescribedroperty, but nothing herein shall be construed as reimposing the &rime, and said GRANTOR does hereby fully warrant the title to said land, and will defend the saga against the lawful claims of all persons whomsoever. Iii 8'ITKESS WHEREOF", we have hereunto sat our hands and seal this day of Septexbor, 1999. B.R. INC. SY t• MRIS1f J. GIHWALA r Pra snt,, Atte sfi t �pllallllilr �. t `tr'r'•'�Pr#.nt y f kAr--P 45 secretary (SEAT,) ri;y.-+CiIF,1 afoot JAA V4 9, U-7 -- (sign (print j � +1iL L STATE OF FLORIDA j )se COUNTY OF DADS f x HEREBY CERTi n that on this day before we an officer duly qualified to take acknowledgments, personally appeared H"ISH J. GIffNAZ,A and , President and Secretary, respectively, of S.R.P'., INC., to me well known to be the persons desori'bed in and who executed the foregoing instruaent and they acknowledged before ole that the executed the same as their deed for the purposes expressed hsreTn, i1ITHISS my hand and official seal in Cunt and State last aforewaid thimijf0day of SepteAbex, 5999. my COM'ssion Expit:estsow MW ;4 PZ.15 City Clerk h 11 f rrgrraN[n � Ck' fJk3f oOUYn, lIM0171Q �D E��srarcen'CONIT Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk ����� By 1J1J 5101 'Biscayne 'MIvd 5101, Miami, Florida DRAVONG IMDZX — DATA SHEET A101 F1AST FLOOR PLAN Al 02 SECOND FLOOR PLAN A1D3 THIRD FLOOR PIAN A1D4 FOURTH FLOOR PLAN A105 FIFTH TO EIGHTH FLOOR PLAN A20D WEST ELEVATION A201 NORTH ELEVATION A202 FAST ELEVATION A203 SOUTH ELEVATION A300 WEST—EAST SE000N RENDERING CLASS II FINAL SUBMITTAL K� ■ 3 >1 I c aas . SITE FFX-17 r � E I< LOCATION MAP hLLS. r�A*4 Zyscavich tm NliCwM 0.vq LwFlOOR iw.a raawa�a v �aan�smwm� Submitted into the public Record for item(s) PZ.15 _On 05-25-2017. City Clerk IJUNE 30, 2004 >,mremore : a+ra.�u+ uc�m taxvmnrxwa Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk •d 1K � r}i. 9 � � k � �� 2 . 5 JAW y ;i;`�:•u t'4R�"'4 .r. Y f: ' -�. '•moi=' �,,7.. `, �.Tr ieie� _ .- ,. . _.� -- - .. i 3 p } Submitted into the public Record for item(s) PZ.15 ... _ Qn . - 05-25-2017. City Clerk �- a � ;Y 1, � c 1 ,sr+ " "' � + '� J1 '�"'� r..: , � Bks .. k'•..,s 'r.,� ]- � rc r it ' t -.r -.''• ^' .-f r a ~� i • t r�n� � l ' r� 1 • rte: Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk tP ILI sp j,'+,a �sF irlr �]L i1�'S S 11 ��•` .�i 7 ME.: MENEEK-AMP itl1 ! yb vim. �' .R-� : • Y•i.�'1: —UEMUOMCK c — --� PLAN BISCAYNE BOULEVARD — — — TOBEDEMOLISHED SCALEI�U � . � -��C Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk NE 52ND TERRACE I4 It, ZYUCVlpI F-I F] F J j�j�[j Lam{ +.iren� ans NE 52ND STREET �r 1 Ir NE 51ST STREETacYi�c:sx O El p �1 SITE PLAN =InKFA TI& 1�] ED NE 50TH TERRACE ^� � scab=r=tour ` d-0 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 77-x 1 PRD°E"»" WE 7 F� 1 4P ! 1 m 1 i I � I7 SQA f; ". r^ LPN �1 ME / ■ ■ 1 1 t 4 S w� -V9B g S K MIND.-,• FLOOR 1 Pizirm :r■rx BISCAYNE BOULEVARD sir s tu^�. A 101 SfNFi'� N. Submitted into the public Record for item(s) PZ.15 - On 05-25-2017. City Clerk Submitted into the public Record for item(s) PZ.15 . __ _ On 05-25-2017. City Clerk Submitted into the public Record for item(s)_ On 05.25-2017. PZ.15 City. Clerk Submitted into the public Record for item(s) PZ.15 _ .. On .05-25.-2017. . City Clerk R n {EIi s i{ a Wh nN m V vuu �wie nn n„ rs� it - �. Ee "ifiim u i� Neioil q ELEV.7.M ®M ®g ®® gig 0 M® ®® ®® ®® ®® HMIK EILVATEN Submitted into the public Record for item(s) PZ.15 Oa_ 05-25-2017 , City Clerk JVN.LI,=1U _T. Ich Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk iYacerlrJ� sill M k 'PE{ gig ® ® ®® ®pa) Oig 19 [n � �Q jj�� !r� RI 19 , �o �,i 19 tll ^$r.DWI— �xr vE w,cr san. to .aa. EAST & SO ~ter stRvai MAM-P-W Submitted into the public Record for item(s) PZ.15 Grt- 05-25-2017. City -Clerk _ y ern Q �iMs gig sro� ►+�rHl�aSo„ 5101 Biseape Blvd 4rO ZVGCC CH s 1I7s=rte October 4, 2004 a fig DR, EA 10 1 lig A 2X � sF.lR id�s`+7�dk 5101 AM BOAMO 5101 Fasldev n 5101 SouM 9ew5on I 5101-i'scaple Blvd ,apt zrscc��cF# Scams r=2v-P Submitted into the public Record for item(s) PZ.15 —On- w 05-25-2017. City Clerk October 4, 2004 wa[aarwcw I �s' seraoc WEST—EAST SECTION SCALEi =' Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Zx" RY�'� 4V -E SECTION 1w a—P ,��cml,cr�r war it 1■11��` �� lr � I �s' seraoc WEST—EAST SECTION SCALEi =' Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Zx" RY�'� 4V -E SECTION 1w a—P ,��cml,cr�r war 51014 5225 Biscayne Blvd J*ZYSCGVIGR Submitted into the public Record for item(s) PZ.15 On- . 05-25-2017. City Clerk W wors101 Eft4w BA d Loolmg Nor& VWWaf5226Bhceyne BNd too Aft NorM Oclober 4, 2004 Submitted into the public Record for item(s) PZ.15 On � � 05-25-2017. City Clerk •r ���`I 4''Y,�'��j k� ���JY`� 5�'Iidi �k�F �tsn p� "Mtlf�,,.�{��y' .i:.!Q7��^n �;•� ,�*`5�� k,,.. T: F -..�� � K - fiA _ �1• F i7� .!. � IF '1 i •- ''��y; VI. dr +�.tg �1 pg- ti:4�-i �� 1� �'-a%�-a� ✓•-•R ;�i-iii s:*.. �� � Y� Y. ViieworBftMyoeBAdLooRbigllbV 5101 & 5225 Biscayne Blvd 4TAz*rscoVIC41 scala r=2vm Ociober4, 2004 Submitted into the public Record for item(s) PZ.15 .. an- 05x25-2017 _ City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk gyscaovich Inc.,- _ s e raa �v �11't3�^i1 DF SIS 1 �'L'VILti15t rO3rCi r - an.,21st 24014 •, oma a-::rxc roR fie Bled. ;H INDEX Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk BAYSIQE MOTEL 5101-5125 BISCAYNE BOULEVARD, MIAMI, FL 33137 5101 Biscayne Blvd ���•! �,�_. COVER A101 FIRST FLOOR PLAN A102 SECOND FLOORPLAN A103 THIRD FLOOR PLAN A104 FOURTH FLOOR PLAN A105 TYPICAL (5-8) FLOOR PLAN Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk BAYSIQE MOTEL 5101-5125 BISCAYNE BOULEVARD, MIAMI, FL 33137 5101 Biscayne Blvd ���•! �,�_. APPROVED PROJECT FLOOR AnEAS 12..02.2013 AS PER CLASS II FINAL SU9XIIfTAL PREPARED BY aZYSCOVICHP- INC. -ON JUNE 30, 2004 PROJ€C70 13i1 FOLFO 0 01:3ZI9.o:e.e07a T6U0 w -0f921"17-00" OWNER INFORMATION: DAYSIDE 6191, LLC lWIAMI 21 FLOOR AREA CALCULATIONS PREPARED BY DOLEWS=ARCHITECT 5910 H. BAYQ40FtE DR. A'.WK F 0S13t 1305.453725E F11-M3Ism auledcwd Q MAWM emw.&W M FLOORAREA SUMMARY (�S PER MAW 21 CODE. ART i J7_ FLOOR AREA) FIRST FLOOR 19,053 S -F. 7 SECOND FLOOR: 18,878 S.F. THIRD FLOOR: 46,733 S.F. r � FOURTH FLOOR., 11,655 S-F. FIFTH FLOOR: i2,W9S.F_ SDCCH FLOOR: 12,6095F_ SEVENTH FLOOR 12,609 S -F. f EIGHTH FLOOR: 12, ,609 SF. ? TOTAL. a S.F. APPROVED PROJECT FLOOR AnEAS 12..02.2013 AS PER CLASS II FINAL SU9XIIfTAL PREPARED BY aZYSCOVICHP- INC. -ON JUNE 30, 2004 PROJ€C70 13i1 FOLFO 0 01:3ZI9.o:e.e07a T6U0 w -0f921"17-00" OWNER INFORMATION: DAYSIDE 6191, LLC lWIAMI 21 FLOOR AREA CALCULATIONS PREPARED BY DOLEWS=ARCHITECT 5910 H. BAYQ40FtE DR. A'.WK F 0S13t 1305.453725E F11-M3Ism auledcwd Q MAWM emw.&W M Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk BISCAYNE 80JI-`LARD FL0OR AREA (AS PER' MANI 21, S40WN SHADED) FIRST FLOOR: 13,053 S.F. a SCALEi =' is wmrerge;acc,� cmc» Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk r ,.rte- \ ,._-Q aSCAYME BbJLEVA.RD FLOOR AREA (AS M KAM 21. S4UMN SNADEM) fl S F O L)KD OR. ZS,Va S.F. F FLOOR2 A 102 SfAIEt'�P H�i _ !�. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk BISCAYNE BOUI£rARD FLOUR AREA K PER W3W 21. SW," THrRU FLOOR :8,733 S.F. I 'r 1 PE;FM r tee 2 __ '�_ % _ EISCAYNL BG`L�VAR� j� FLOOR AREA (AS PEP, MWA 21, SHO -M SHADED), / FOURTH FLOOR 11.555 S,F \L Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk iL�Fllf44 1 w SC�UEi'�U rt r� raar Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk �����, I F�?*uss ? - - -- FLOORS RE BISCAY\E BOULEVARDTM fl'iOR A. O nE M 1 euli i. s -F- !! CHH• SY �� his tt x C: E OFM 54.7&5 TOTAL- 5€7?39 S.F. l � ! Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk :ll� 1s1�llvj)Ill lyDD1J PORCH P,9D 7 W SM W, P. I ONE) 0011,4020 W - r MSTLK VMM1 Ey�,-.,.,G Fzor _Lm,** L7 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk U I r ,IVOR Alwvs VIE A FM M -at ;I 1o2: rx;^R Anek ra FLP% AN7 kt AwAtsw IM"'NoW 5101-5125 TDR SUMMARY TDRs under COE Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 118,755 SF (approved under Class II) x 4 - Existing 15,492 SF building = 459,528 SF TDRs approved under COE offer 2017 Special COA 118,755 SF (approved under Class II) x 4 - Proposed 25,822 SF building = 449,198 SF Remaining TDRs_affer proposed improvements pursuant to 2017 Special COA 449,198 SF - 340,059 SF (already transferred) =109,138.98 SF MIA 1858430430 CZitg V r ffl Yamt �oti'rti n� 4 tot' 111* March 25, 2014 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Bayside 5101 LLC 7272 NE 6t" Court, Suite 4 Miami, FL 33138 Re: Transfer of Development Rights Certificate of Eligibility Application (TDR -2014-04) 5101 Biscayne Boulevard Dear Ms. Jain, DANIEL), ALFONSO Gh, Manager The City of Miami has received your application for a Certificate of Eligibility for the 'Transfer of Development Rights per Chapter 23-6 of the City of Miami Code for the property located at 5101 Biscayne Blvd located within the MiMo Historic District. After reviewing the settlement agreement between the Morningside Civic Association, Inc., Bayside 5101, LLC, and the City of Miami, the City agrees that the owner, 5101 Bayside 5101 LLC, is eligible to transfer unused development rights from Folio 01••3219-018- 0070, (5101 Biscayne Boulevard — a contributing structure) as described in the settlement agreement. The transfer of development rights is based on the total square footage of the land for 'the parcel, the total development capacity under the existing zoning, the current structure located onsite, and the historical status either contributing or non contributing as identified in the Historic Designation Report. Structures located in the MiMo Historic District are given additional TDR capacity based on Chapter 23-6, Based on the proposed plans, existing site survey and current calculations, and as verified by the Zoning Administrator as per Section 23-6 (7) of the City Code, the applicant is entitled to: (118,755 sf of GFA x Q — Existing 15,492 sf building) = TOTAL TDR VOUCHERS = 459, 528 (all inclusive). This number is accurate as of the issuance date. Any additions or modifications to the building may affect this number. This letter is to serve as notice that this site is an Eligible Sending Site for a TDR Voucher per Chapter 23-6. If you have any questions, please contact me at (305) 416- 1423. Sincerely, Megan Cross Schmitt Preservation Officer CC' Mr. Francisco Garcia, Planning Director Ms. Irene Hegedus, Zoning Administrator Mr. Carlos Lago, Esq., Greenberg Traurig PLANNING AND ZONING DEPARTMENT 444 S.W. 2nd Avenue, 3rd Floor / Miami, Florida 33130 / Phone: (305) 416-1400 Fax (305) 416-2156 Mailing Address: P,O. Box 330708 Miami, Florida 33233-0708 This instrument prepared by: Carlos R. Lago, Esq. Greenberg Traurig 333 Avenue of the Americas, Suite 4400 Miami, FL 33131 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk CFN 2014RO690503 OR Ek 29336 P9s 2071 - 2090; (20p9s) RECORDED 10/03/2014 1056:40 HARVEY RUVINr CLERK OF COURT MIAMI-DADE COUNTY, FLORIDA (Space Reserved for Clerk 1 DECLARATION OF RESTRICTIVE COVENANTS This Declaration of Restrictive Covenants (the "Declaration") made this Q. day of September 2014, by BAYSIDE 5101, LLC, a Florida limited liability company (hereinafter referred to as the "Owner"), including its successors and assigns, is in favor of the CITY OF MIAMI, a municipal corporation located within the State of Florida (hereinafter referred to as the "City"). PREAMBLE WHEREAS, the Owner sought and obtained a determination of eligibility by the Historic Environmental and Preservation Board ("HEPB") of the City in accordance with Section 23-6 City of Miami Code of Ordinances, as amended ("City Code"), for the properties located at 5125 and 5101 Biscayne Boulevard, Miami, Florida 33137 (hereinafter collectively referred to as the "Sending Property") and legally described in the attached hereto as Exhibit "A" (Folio Nos. 01-3129-017-0090 and 01-3129-018-0070), as located within the City's Miami Modern / Biscayne Boulevard Historic District ("MiMo District"); and WHEREAS, the Sending Property has a net lot size of approximately 118,755 square feet and is presently developed with a two-story historically designated and contributing building (a/k/a Bayside Motor Inn Motel) consisting of approximately 15,492 square feet of existing building area; and MIA 1840610460 Book29336/Page2071 CFN#20140690503 Page 1 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk WHEREAS, on January 9, 2014, the Miami City Commission approved Resolution No. R-14-0015 authorizing a Settlement Agreement between and among the Owner, the City, the Morningside Civic Association, Inc., a Florida not-for-profit corporation, and various residents of the area, resolving more than a decade of litigation between the parties regarding the development of the Sending Property and concluding and agreeing that the Sending Property is eligible for the transfer of a total of 459,528 square feet of unused development rights available for transfer to eligible receiving site(s), as stipulated in that certain Settlement Agreement, as recorded on August, 20, 2014 in Official Records Book 29277, at Page 4160, of the Public Records of Miami -Dade County, Florida (the "Settlement Agreement"); and WHEREAS, on March 25, 2014, the City issued Certificate of Eligibility No. TDR - 2014 -04 pursuant to the approved Settlement Agreement, authorizing a total of 459,528 square feet of available transfer of development rights to unknown eligible "Receiving Site(s)" in accordance with Chapter 23 of the City Code and Section 3.14 of Ordinance 13114, the City Zoning Code ("Miami 21"); and WHEREAS, on February 4, 2014, the City's Historic and Environmental Preservation Board ("HEPB") approved Resolution No. HEPB-R-14-006 issuing a Special Certificate of Appropriateness for the restoration, partial demolition and additions to the Sending Property; and WHEREAS, the Owner desires to make a voluntary binding commitment to assure that the Sending Property shall be preserved and maintained in accordance with the provisions of this Declaration and the City Code, including but not limited to, all applicable provisions of Section 23-6, entitled "Transfer of Development Rights". K MIA 1640610460 Book29336/Page2072 CFN#20140690503 Page 2 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk NOW THEREFORE, the Owner voluntarily and knowingly covenants and agrees that the Sending Property shall be subject to the following declarations and restrictions, which shall be deemed a covenant running with and touching and concerning the land and binding upon the Owner of the Sending Property, its heirs, successors and assigns as follows: Section 1. The recitals are hereby incorporated as if fully set forth herein. Section 2. The Owner hereby makes the following voluntary declarations running with and touching the land regarding the Sending Property: (a) Any construction on the Sending Property shall be completed pursuant to the Special Certificate of Appropriateness as approved by the HEPB pursuant to Resolution No. HEPB-R-14-006. Any proposed construction outside of the scope of work approved by an existing Certificate of Appropriateness shall be completed pursuant to the issuance of a Certificate of Appropriateness to be approved by either the City of Miami's Historic Preservation Officer (the "Historic Preservation Officer") or the 14EPB, as required by Chapter 23 of the City Code. All work shall be done in accordance with the Secretary of the Interior Standards and the City of Miami Design Guidelines for Historic Resources. The building shall be preserved and maintained in accordance with the Existing Conditions & Improvement Report and the Maintenance Schedule Report attached hereto as composite Exhibit "B". (b) The Sending Property shall be maintained to a standard consistent with the City Building Department's standards for "Forty (40) year recertification". (c) The requirements set forth in Section 2 shall be binding upon the Owner, its heirs, successors, grantees and assigns. 3 MIA 1840610460 Book29336/Page2073 CFN#20140690503 Page 3 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk (d) Notice of any change in ownership of the Sending Property shall be provided to the Historic Preservation Officer within 30 days of the date of such transfer. (e) The Receiving Property shall be located in a T6 Transect zone and must be eligible to participate in the Public Benefits Bonus Program. The Receiving Property shall have recorded against its title, in the Public Records of Miami -Dade County, Florida, a Certificate of Transfer indicating the amount of square footage of development rights transferred thereto. (f) In the event that the development rights are transferred from the Sending Property to an eligible Receiving Property, written notice by an addendum to this Declaration shall be recorded on the Sending Property. The recording of the addendum as to the Sending Property and the Certificate of Transfer as to the Receiving Property shall be done within thirty (30) days of such transfer and a copy shall be provided to the Historic Preservation Officer of the City. Section 3. Effective Tate. This Declaration shall become effective upon recordation in the Public Records of Miami -Dade County, Florida, and shall continue in effect for a period of thirty (30) years after the date of such recordation, after which time it shall be extended automatically for successive periods of ten (10) years. This instrument shall constitute a covenant running with the land on the Sending Property and shall be binding upon the Owners, their successors and assigns. These restrictions shall be a limitation upon all present and future Owners of the Sending Property and shall be for the public welfare, as part of the preservation of buildings within the Miami Modem/Biscayne Boulevard Historic District. Certificates of 4 MIA 1840610460 Book29336/Page2074 CFN#20140690503 Page 4 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Transfer created and amended pursuant to the transfer of development rights included in this Declaration shall also be recorded on the Receiving Properties once identified, as notice to the public of the transfer. Section 4. Modification Amendment, Release. This instrument may only be modified, amended, or released as to the Sending Property, or any portion thereof, by a written instrument executed by the then Owner(s) of the Sending Property, including joinders by all mortgagees, if any, provided that the same is also approved in writing by the Historic Preservation Officer, the Director of the Planning Department, the Zoning Director or its designated representative, and with legal form approved by the City Attorney. Section 5. Inspection and Enforcement. This Declaration may be enforced by any means provided by law. An enforcement action may be brought by the City by action in law or in equity against any party or person violating or attempting to violate any covenants of this Declaration, or provisions of the building and zoning regulations, either to restrain violations or to recover damages. The prevailing party in the action or suit shall be entitled to recover costs and reasonable attorney's fees, but attorney's fees shall not be awarded against the City. The City may also enforce this Declaration pursuant to City Code Chapter 2, Article X, entitled "Code Enforcement". This enforcement provision shall be in addition to any other remedies available under the law. Section 6. Severability. Invalidation of any one of these covenants by judgment of court shall not affect any of the other provisions of the Declaration, which shall remain in full effect. 5 MIA 1840610460 Book29336/Page2075 CFN#20140690503 Page 5 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Section 7. Recordin,-. This Declaration shall be filed of record among the Public Records of Miami -Dade County, Florida, at the Owner's expense within ten (10) days of execution by the City. The Owner shall furnish a certified copy of the recorded Declaration to the Historic Preservation Officer within thirty (30) days of its recordation. Certificates of Transfer created and amended by the Owner and pursuant to the transfer of development rights included in this Declaration shall also be recorded upon the Receiving Properties once they are identified. The Owner shall likewise furnish a certified copy of the recorded Certificate of Transfer to the Historic Preservation Officer within thirty (30) days of its recordation. Section 8. Miscellaneous Provisions. This Declaration shall be construed and enforced according to the laws of the State of Florida. Venue in any proceeding between the parties shall be in Miami -Dade County, Florida. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. Title and para-rapli headings are for convenient reference and are not part of this Agreement. No waiver of breach of any provision of this Declaration shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. This Declaration constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed according to Section 4 herein. [Signature Pages to Follow] 6 MIA 1840610460 Book29336/Page2076 CFN#20140690503 Page 6 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Signed, witnessed, executed and acknowledged on this 1� day of —'??rot( ifi, 2014. Witnesses: BAYSIDE 5101, LLC, a Florida limited liability company w By: By: -- Name: Avra Jain, its M34ager By: Name: U) CL- STATE OF FLORIDA COUNTY OF MIAMI DADE The foregoing instrument was acknowledged before me this. day of , 2014 by Avra Jain, as Manager of Ba side 5101, LLL', a Florida limited kability company. She is ❑ personally known to me or,0 has produced at�I ygzj lA<tt i—,1J , as identification, and did take an oath. Notary Public State of Florida at Large L— My Commission Expires: Print Name R `gip FL s WIlNOA RQORfGU]FIoriva WANDA RODRIGUEZ Nolvy Public • 5 y j late F '1a My Gomm. E><Afres taar Commission ■ EE 17 MIA 184061046VI Book29336/Page2077 CFN#20140690503 Page 7 of 20 Submitted into the public Record for item(s) On 05-25-2017 APPROVED AS TO FORM AND APPROVED AS TO HEPB ORDINANCE CORRECTNESS: FOR TDR: VI[ `" RIA MENDEZ MEGA ROSS SCHMITT City Attorney Historic Preservation Officer APPROVED AS TO ZONING REQUIREMENTS: 1*�'L, IR -NE S. HEGEDUS "Zoning Administrator MIA 1840610460 APPROVED AS TO PLANNING GUIDELINES: CIANCISCO r3AkCIA Director of Planning and Zoning PZ.15 _ City Clerk Book29336/Page2078 CFN#20140690503 Page 8 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk JOINDER BY MORTGAGEE The undersigned, JDV Bayside, LLC, a Florida limited liability company, as Mortgagee under the following mortgage: Mortgage, Assignment of Leases and Rents and Security Agreement dated November 12, 2013, in favor of JDV Bayside, LLC, a Florida limited liability company, and recorded on November 14, 2013 in Official Records Book 28912, Page 251 of the Public Records of Miami -Dade County, Florida; covering all/or a portion of the property described in the foregoing Declaration of Restrictive Covenant, does hereby acknowledge that the terms of this Declaration of Restrictive Covenants are and shall be binding upon the undersigned and its successors in title. No liability is undertaken by the undersigned by the execution and delivery of this Joinder. Signed, witnessed, executed and acknowledged on this 3 day of 2014. Witnesses: JDV BAYSIDE, LLC, a Florida limited liability company By: By: 1 Name: rR.:I5.rAP1rre_z 9. C+"a' Joseph Del Vecchio, its Manager By: Name:. STATE OF FtAy-,,p pr COUNTY OF )--1 t j,,j, - ,"� p b < The foregoing instrument was acknowledged before me this 3 day of gg,Y,2014 by Joseph Del Vecchio, as Manager of JDV Buysidc, LLC, a Florida limited liability company. He is O personally known to me opZhas produced r ; SLej 5 Cc U'L' L as, identification, and did take an oath. . I My Commission Expires: Errorl Unknown document property name. Notary Vublic State of T -/a Print Name I" I c?uC✓ WANDA RODRIGUEZ Notary Public - State of Florida My Comm. Expires Mar 7, 2016 Commission # EE 177058 Book29336/Page2079 CFN#20140690503 Page 9 of 20 ExIiihit "A" Legal Description of Property Parcel 1: Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Lot 1, Block 5, of BAYSHOIM PLAZA UNfT NO 3, according to the Plat thereof as recorded in Plat Book 41, Page 73, of the Public Records of Miami - Dade County, Florida. Parcel 2: Lot 17, Block 5, of • BAYSHORE PLAZA UNIT NO 4, according to the Plat thereof as recorded In Plat Book 42, Page 2, of the PublIc Records of Miami - Dade County, Florldsi<. a/k/a 5101 and 5125 Biscayne Boulevard Miami, Florida Folio Nos. 01-3129-017-0090 and 01-3129-018-0070 10 MIA 1640610460 Book29336/Page2080 CFN#20140690503 Page 10 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Exhibit "B" Existing Conditions & Improvement Report and Maintenance Schedule Report MIA 1840610460 Book29336/Page2081 CFN#20140690503 Page 11 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk DB LEWIS-Architect EXHIBIT 1 EXISTING CONDITIONS & IMPROVEMENTS REPORT and MAINTENANCE SCHEDULE REPORT For 5101 BAYSIDE, LLC 10 August. 2014 Prepared for. The CITY OF WWI Planning Department-Hlstoric Preservation RE: TDR Application- 5101 Biscayne Blvd. For BAYSIDE 5101, LLC Prepared By Dean B. Lewis, AIA, NCARB Architect AR00173 Book29336/Page2082 CFN#20140690503 Page 12 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk DB LEWIS-Architect A. SUMMARY / IDENTIFICATION / TDR Vouchers Property Address: 6101, 5126 Biscayne Blvd..., Miami, FL. 33138, MIMO Historic District Folios: 01-3219-018-0070, 01-3219-017-0090 —(5101 Bisc.Blvd. a Contributing Structure) Legal Description: (See attached Survey) Building Disposition: (2) Existing two story CBS Freestanding 'U' shaped buildings connected with a one story common space lobby building. Reference Site Plan: See attached - Existing Building Plan and areas provided in this TDR Application. Owner: BAYSIDE 5101, LLC, Go: Ms. Avra Jain, MMBR.,4101 SW 14 ST.,Miami, FL. 33134 Site: Full Block with service driveway along eastern boundary. Property parcels are fronting 3 public Right of Ways including Biscayne Blvd. Utility services include: City water, sewer, gas, and electric power. Building Structure: Reinforced 2 story CBS structures built 10952 using standard means of the time for Its intended use, of extended stay motel, store and in grade pool, terrace amenities. Amenities, Parking: Interior Courtyard w/fountain, South garden terrace area, off street parking, Commercial Uses: Motel, Restaurant, Pool Terrace; allows for limited general commercial uses Zoning: Miami 21 Zoning Code: T4-0 (Open) Net Lot Area(s): 29,760 SF Building Areas: 15,492 SF TDR Vouchers: 469,628 SF See TDR -201404 Certificate of Eligibility (COE), attached; ( of which, 90,128 SF will be maintained, reserved on the property as guarantee to complete the improvements, or, In the case of transfer of said TDRs. Owner will post bond at time of permitting work) B. SCOPE OF WORK —as per City-HEPB Approved Plans — COA February 2014 (attached) > Restoration and interior remodeling of existing courtyard buildings; > Demolition of the non -historic one-story entrance lobby and the altered one-story wing at the SW comer of property; > Construction of a double -height atrium lobby in place of the existing entrance lobby; >Construction of a restaurant cafe addition in place of the existing one-story wing at the SW comer of property; >Repair and refinishing of all stucco walls; >Installation of new doors and windows; Conditions of COA: (See attached Photos and copies of Approved Plans) >Window design shall reflect historic window types of 1950's motels; can include divided -light steel casement, Awning, or jalousie windows. Frames shall be silver in color, and glass dear (low-e,approved). Operation types may Casement or single hung. >All applied brick details shall remain intact, including on window bands and columns; and painted contrasting color >The decorative concrete block garden wall fronting Biscayne blvd. shall be retained / returned on south boundary. I•! Book29336/Page2083 CFN#20140690503 Page 13 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk DB LEWIS-Architect >Original railings shall be retained. >All signage, lighting, site work, fencing, and landscaping shall be subject to HEPB approval. >AII mechanical equipment, Including air conditioning compressors, electrical boxes, solar panels, etc. shall be located so that it is not visible from the public right-of-way. >AII work to be in accordance with City approved building permits, including required building MEP systems; >AII mechanical equipment to be located away from / not visible from public right-of-way; >A multi -layered landscape buffer of palms, trees, shrubs, and/or ground cover shall be planted between Residential Commercial uses; >No spillover lighting shall be allowed, light fixtures shall be full out -off style. I. OBJECTIVE — Identify Architectural Characteristics, Improvements The purpose of our observations and resulting Report is to assess the general existing conditions of the building and site improvements. This report is intended primarily to address the architectural character defining elements and the improvements thereof which contribute the building's historical status. Further the report will identify in general terns those areas that require remedial or replacement works. This Report is based on field observations and industry standards for intended use. Note: Any / All suggested remedial, and/or new work to be performed in accordance with City HEPB Approved PROJECT Plans, COA. II. PROCEDURES & LIMITATIONS — Good Faith Estimate On -Site evaluations of the property have been performed by our team to determine the condition of various components. We were able to gain access to most of the accessible building areas and the exterior grounds of the property. We did not remove any construction materials to inspect underlying structure. LIMITATIONS: Our observations are not intended to warrant or guarantee the performance of any building components or systems. This Report is not an environmental impact report and does not confirm the absence of asbestos, PCB's or toxic soils on the property. All representations are good faith observations to existing conditions prior to renovations. Repair and Improvement cost estimates will be based on approximate quantities and industry standard costs of material and labor available at the time of estimating. This Report is not a detailed survey of quantities for hard construction cost estimating. The author does not warrant nor guarantee that these good faith cost estimates are accurate, nor do they represent an exhaustive accounting of all related costs of renovations anticipated. III. GENERAL CONSTRUCTION The building structure is of concrete masonry with reinforced concrete columns and beams on a reinforced concrete slab on grade. Roof and Floor Construction is of wood jolsts and occasional steel beams generally protected by plaster board ceilings. Generally, construction is consistent with means methods and standards of care acceptable at the time of construction. IV. GENERAL OBSERVATIONS All general comments and cost estimates are based on visual observation of all visible building and site elements, architectural components integral to the building structure and Industry standards of construction at the time of this report and at the actual time of construction. The following Is a summary of architectural observations, suggested repairs, and improvements in accordance with City HEPB-COA, February 2014. A. WALL CONSTRUCTION: I. Masonry Bearing Walls: Built of 8 inch concrete masonry units with reinforced concrete be beams and columns on spread footings; the overall integrity of the structural shell is good and consistent with building practices of the period. Walls are supported on a concrete spread footing foundation system on dry compacted fill. There is no evidence of settlement, generally good alignment, no irregularities. Tie Beams, columns and slabs in fair to good condition. Variety of hairline and fine sized cracks were visible on exterior walls. Crawl space under north building has flood vents, condition fair, anticipate some repairs, resealing, refinishing. II. Steel I Concrete Framing Systems, Improvements: N/A Book29336/Page2084 CFN#20140690503 Page 14 of 20 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk DB LEWIS-Architect 3. Repair / replace hose bibs, patch wall penetration for rain water leader(s). 4. Anticipate tenant demand for ADA compliant toilet facilities. 5. Add new public bathrooms , new kitchen & bar for new restaurant /cafe. K. ELECTRICAL System / Repairs — Improvements: 1. The main disconnects for the individual units are 100 amps 2. The main disconnects in the meter room were observed to be in fair condition with minor corrosion. 3. There is also a house meter which is not currently used. 4. The electrical ground wire is bonded to ground rods, verify. 5. In general, the main electrical service equipment was observed to be in good condition. 6. Distribution panels are located in each unit are in good condition but missing circuit identlfications. Timers at each. 7. Life safety devices consist of exit and emergency lights, to reconfigure with renovations. 8. Repair all conduit raceways, outlets and switches as required. Repair or replace exit/emergency lights as needed, 9. Label and Identify all circuits in panels. 10. Expand service to integrate new restaurant, kitchen and lobby. L. FIRE PROTECTION / Life Safety Systems / Repairs — Improvements: 1. Existing Building is Non-Sprinklered; 2. All combustible structural members (floom/ceilings/roof) are generally protected with fire rated ceiling assemblies; UL 1 -hour rated compliance should be verified, assured at all penetrations and tenant separations. 3. Functional electronic fire alarms, strobes and pull boxes required to meet current codes; 4. Any/all exposed structural members to receive minimum 1 -hour fire protection treatment. M. HANDICAPPED Accessibility f Repairs — Improvements: N/A 1. Public entrance accessible, no repairs required. Future tenant remodeling may require accommodations. N. TOTAL Estimated COSTS of IMPROVEMENTS -Future Addendum: The total cost required to complete the above property improvements and remodeling cannot be compiled until the Owner and Architect's completion of the associated construction building permit documents including required engineering systems and upgrades. Once the plans are completed and permits approved, the cost allocations will be assessed and submitted in addendum to this report. O. CONCLUSIONS: We recommend that the improvements and optional upgrades noted within this report be completed within the next 2 years in accordance with current building codes. We concluded from our inspections that the existing building is structurally safe and sound and was built in compliance with the requirements of the original approved plans and specifications. As a routine matter, in ober to avoid misunderstanding, nothing in this report shall be construed directly or Indirectly as a guarantee for any portion of the structure or for any portion of the systems described. To the best of our knowledge and ability, this Report represents an accurate appraisal of the present conditions of the building based upon careful evaluation of observed conditions, and received contractor bids to the extent reasonably possible. See the related Building Systems Maintenance Schedule for allocated life cycle costs of building systems including 40 year recertification as per city code and general repairs and maintenance of the building(s) exterior envelope. P. BUILDING SYSTEMS MAINTENANCE SCHEDULE — Future Addendum: This report will be prepared and submitted to the City — HEPB Officer for approval at the time of Owner and Architect's completion of related Construction Permk Documents. At this time It Is too premature to generate this report until the design and related systems engineering Is completed. The report will be compiled and submitted within 30 days of the City's approval of Construction Master Building Permit for the approved scope of work. Book29336/Page2086 CFN#20140690503 Page 16 of 20 133 O O 77 N w w CD N O Cb 4 '1 N O_ O rn /0 V Y O CA) CD O h N 0 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk r}iI 1 __7j — -- --- - HATCH LEGEND ENSTUC/DEMO PAN— +•• I LLICHTSjM TQ H � ■ QEYGIlSIWWS iN � ® IKvppFYdOMFYgn7E3 Y � / LJ n [LW[M7l+�ME✓ci Tfl F[ �~ vJALoawo N : V llI rL u.. { - _• rw c J .:.p,X T I � , � ... - s,• rye I 2 A , Y NORTH 8U11 DING NON-CONTRIBUTING 4I1 YY' �/j j _L SOULN BUHMMOY� CONTRIBUTING EXISTING/DEMO GROUND FLOOR DIAGRAM PRE-EXISTING CONDITIONS REPORT BAYSIDE MOTEL L 5101-5125 BISCAYNE BLVD. . R a C H I T E C s �� MIAMI, FL 33137 -2. 03 O OT 'N^ W W VJ T� ^'v W CD N O CO CO T Z N O .p O CA O O C31 O w ^'V W (Q CD CO O h N O Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk li-H SGIELE fN E�j a d n L^ EXISTING/DEMO SECOND FLOOR DIAGRAM PRE-EXISTING CONDITIONS REPORT BAYSIDE MOTEL 5101-5125 BISCAYNE BLVD. I A AC H i T E z r 9 MIAMI, FL 33137 -3- HATCH LEGEND as /DEUD PM .E�F]MCkEi/WKAS � EL �tl61L15r� ry-C�KJn3/IFAS TO w EC/ADiWRiE] ® niiCN151�RiA5 i0 K NGWIII4Q — I li-H SGIELE fN E�j a d n L^ EXISTING/DEMO SECOND FLOOR DIAGRAM PRE-EXISTING CONDITIONS REPORT BAYSIDE MOTEL 5101-5125 BISCAYNE BLVD. I A AC H i T E z r 9 MIAMI, FL 33137 -3- 0 O N CO W W O N (0 (D N O 00 Cfl W '1 Z N O -46O O O O 01 O W J Submitted into the public Record for item(s) On 05-25-2017 r _ [1,TT7 I PZ.15 _ City Clerk PROPOSED GROUND FLOOR DIAGRAM (As per approved HEPB Submittal of February 2014) PRE-EXISTING CONDITIONS REPORT BAYSIDE MOTEL 111113L 5101-5125 BISCAYNE BLVD. t r MIAMI, FL 33137 -7- 00 O O N O W W CA LU N O O O n N 0 O O CO O C31 O W CD N O O h N 0 I I I �I I Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk DT bN �v ;H M/W/ -Si-ALE lrt _rri;_ y� PROPOSED SECOND FLOOR DIAGRAM (As per approved HEPB Submittal of February 2014) ON PRE-EXISTING CONDITIONS REPORT BAYSIDE MOTEL +n 5101-5125 BISCAYNE BLVD.LAR CH 1Ll-k_v . c r g W MIAMI, FL 33137 lip0 -8- `A C, HATCH LEGEND LmGm i lryf 'ff%f 41 � err DT bN �v ;H M/W/ -Si-ALE lrt _rri;_ y� PROPOSED SECOND FLOOR DIAGRAM (As per approved HEPB Submittal of February 2014) ON PRE-EXISTING CONDITIONS REPORT BAYSIDE MOTEL +n 5101-5125 BISCAYNE BLVD.LAR CH 1Ll-k_v . c r g W MIAMI, FL 33137 lip0 -8- `A C, Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk DB LEWIS-Architect Ill. Wood Framing Systems; 1. The existing wood framing of the interior partition walls, roof framing and floor framing is generally of fair to good condition and will remain. Any damaged members to be repaired or replaced with code compliant means and standards Including required fire protection for intended uses. B. ROOF CONSTRUCTION / Repairs — Improvements: 1. The roof structure, typically good condition, is a wood framed system consisting of 2"x10" at 16" on center, including diagonal bracing, supporting roof decking with a built-up roof membrane BUR. Future re -roofing should be done with a quality BUR membrane product system with minimum sloping to code compliant roof drains or gutters. Evidence of previous roof deck repairs due to roof leaking. All BUR roofing in poor condition, should be replaced. We recommend roof deck repairs, new flashing and replacing all the existing insulation with new R-30 Batts or Blown insulation, to improve energy performance and sound absorption C. WINDOWS /Storefront -Repairs - Improvements: 1. All existing windows of aluminum frames, are double hung, awning, casement or fixed storefront in fair to good condition. Repair, replace all doors windows in accordance with approved plans using clear, low -e glazing, silver color frames. Operation to be either casement or single hung. Storefront fixed windows in new lobby and restaurant according to approved plans. D. DOORS / Storefront -Repairs - Improvements: We recommend that all existing doors be repaired, refinished and re -sealed Including hardware where required for safe security and weather proofing. Storefront fixed windows In new lobby and restaurant according to approved plans. E. EXTERIOR BALCONIES, CORRIDORS, STAIRS / Repairs - Improvements: 1. Existing, exterior corridors, (breezeways) and stairs are to be maintained, repaired and refinished as per plans. 2. Anew exterior stair will be built as per approved plans on the west fagade of the new restaurant caf6. 3. Existing stairs of the courtyard buildings to be refurbished, refinished. F. DECORATIVE ORNAMENT / Repairs - Improvements: 1. Existing slump brick 'wrapping', bands at windows to be maintained, repaired and refinished in contrasting color. 2. Existing metal railings to be maintained, repaired and refinished as per plans. 3. Artist Mural work; restoration will include integration of a contemporary artist's mural work on an accent wall(s). G. SITE WORKS I Repairs - Improvements 1. Perimeter Landscaping buffering, hardscape pavers and existing repairs and improvements, 2. Future resurfacing of parking area is anticipated. 3. The decorative concrete block garden wall at southeast boundary, will be restored and extended eastward. H. ELEVATORS / N/A Currently there is no elevator, nor ADA lift. If futures permit plans integrate a lift, it will be in an interior location and not visible from the exterior facades of the public right-of-way. I. MECHANICAL System / Repairs — Improvements: 1. Fire Protection- The building does have a fire sprinkler system and has minimal fire alarm devices. 2. The entire fire alarm system should be inspected and tested to verify performance. 3. The HVAC system for the (3) tenant spaces consists of three (3) air cooled split air condition units. Air handling units are located within the tenant spaces they serve controlled by local thermostat. 4. (2 ) of the condensing units are mounted on the exterior walls on steel brackets in need of corrosion protection. Location is not practical for service. The 3rd unit is located on a lower roof without a proper support stand and straps. 5. Need to troubleshoot, test and provide general maintenance. Clean coils, provide proper supports and hurricane straps. Seal wall penetrations, repair refrigerant insulation, reroute A/C condensate drain piping for proper drainage. J. PLUMBING System I Repairs — Improvements: 1. Tenant toilet facilities each Include tank type water closet and pedestal -repair, replace as required. 2. Repair/ replace float valve(s), repair leaks on irrigation system, video sanitary piping to verify conditions. Book29336/Page2085 CFN#20140690503 Page 15 of 20 CERTIFICATE-�� OF TRAM I S•hER. 7/ City of Miami Transfer of Development Rights for Historic Resourc0s THIS INSTRUMENT PREPARED BY: CITY OF MIAMI HISTORIC PRESERVATION OFFICER MIAMI RIVERSIDE. CENTER, 3RD FLOOR 444 S.W'. 2ND AVENUE MIAMI, FLORIDA 33130-1910 (Form DR 219) Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 1111111111{1 1111111111 1111111111111111111111 0R EK 29731 F'ss 3390-3394 (51"9s) il(iKT'i RLWINr nf' COIIW! l`l!A i1-•D;DF C:[ILWTj', Fi_.rRI6F Space Above This Une For Recording Data Certificate No. TDR -COT -29 [Date Issued: Page 1 This Certificate of Transfer is issued by the City of Miami, Florida pursuant to Sec. 23-6 of the City Code of Ordinances of the City of Miami, as amended, and Certificate of Eligibility TDR-COE-18 formerl TDR -2014-04) issued on March 25, 2014 which identified 459,528 square feet of development rights as eligible for transfer. This Certificate of Transfer authorizes the transfer of 39,739 square feet of development rights (a/k/a "Transfer of Development Rights") from 5125 and 5101 Bisca ne Boulevard Miami Florida (a/k/a "the Sending Site ") , leaving 119,469 square feet of excess development rights remaining at the Sending Site. Sending Site Site Name: Owner Name: BAYS IDE 5101 LLC BAYSIDE_5101 LLC Address: Owner Address: Parcel 1: 5125 Biscayne Blvd., Miami, Florida 33137 7272 NE 6`h Court, Suite 4, Miami, Florida 33138 Parcel 2: 5101 Biscayne Blvd,, Miamij Florida 33137 Folio: Date of Construction: Parcel 1: 01-3219-017-0090 1952 Parcel 2: 01-3219-018-0070 Legal Description of the Property . Date Designated: See Exhibit "A" June 6, 2006 (Resolution HEPB-2006-59) Renovations / Alterations: Special Certificate of Appropriateness HEPB-R 14-006 Previous Certificate of Transfer Certificate of Eligibility TDR-COE-18 Square Footage Eligible: 459,528 SgFL CDT Number _ Address(es) of Previous Receiving Sites: SgFt Trans erred SgFt Remoinin TDR -COT -2014-04 3635 NE I" Ave., 3604 NE I" Ct„ 3620 NE 151 Ct. 107,000 352,528 TDR -COT -2014-04(a) 824 S. Miami Ave., 850S. Miami Ave., 29 SW 9 122,306 230,222 c � St., 37 SW 9 5t., 55 SW 9 St., 61 SW 9 St. �o �r� e FDR -COT -20 1010 SW 2"d Avenue & 228 SW 10 Street 71,014 159,20 N (.i•IY OF M m c DEPARThE.iTI.OF PLANNING AND ZONING I-RSTORICPRESERVAMON SECI70N y 1 Y' -•,•.COD tri S�+1, 444 SW 2ND AvE 3RD FLOOR NSInNn, FL 33130 � •� .N • �� WWWHSTORICPRESERVAMONMIAMI.00M p QFC MIA 1847168880 C"' I E R T I F I C A -VE 0TA'v-'ER F City of Miami Transfer of Development Rights for Historic Resources: Certificate No. TDR -COT -29 Page'2 Receiving Site i Project Name; Park Grove -- Address 2701 South Bayshore Drive, Miami, Florida 33133 Folio: 01-4121-384-0010 Legal Description of the Property See Attached Exhibit "B" City of Miami Fiistaric Preservation Officer 'f fi Ir city ofMiami Zoning AdTrrnstrator / _1-(,0�( S, STATE OF FLORIDA ) SS COUNTY OF MIAMI-DADE ) Submitted into the public Record for item(s) On 05-25-2017 Owner Name: 2701 Bayshore Venture, LLC Owner Address: 2665 South Bayshore Drive, Suite 1020, Miami, Florida 33133 Amount of TDRs Received: 39,739 sq. ft. Amount of TDRs Remaining to be Used on Future Receiving Sites: 119,469 sq. ft. Date PZ.15 City Clerk The foregoing ins rumelrt as acknowledged before me this 31 day of I 2015 by , ci ��rvt4 �l as PRESERV IOX:aF IGERj ffTTHE CITY OF MIArvi , a municipal corporati'u of the State of Florida, who !;-peuonally_Icnown tc�?ne or who 1 has produced as identificatip Rand who did/did not take an oath. �- MWIFER3CLA Printed Name: )Y%,r r Si3 - $� ' MY COi,{i,1WON a EE 172864 + EXpiRES:Feb111ary26,28t8 Notary Public GOUI,1Tk Sfdhoc �At 9adeSTf�uBui H S4Vk r �� cirnx C.� Q'ry or NRAM1 DEPAR'1w Errr or PLANNING AND ZON1NG HISTOWCPRESERVATION SEMON 4 444 SW 2- AvE 3"D n ocRNIhAIvQ, FL 33130 s�;sk ,sii out vn tttusir tR s WWW.i IiSTORI CPRE5E1lVAT10NIvt1AM[.00Mfr'f 7F coo MIA 1847168880 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk I'FICAT-&-��, .;OF TRANSFE1 .City of Miami Transfer of Development Rights J for Historic Resources Certificate No. TDR -COT -29 Page 3 The Owner/ Developer acknowledges that these development rights must be transferred to receiving site(s) that meet the provisions of the Public Benefits Program, as Oullined in Sec. 3.14 of Miami 21, as amended . In order to have a public record maintained by the City of Miami ("City") of the receiving sites and to avoid redundant transactions or transfers in violation of the laws and regulations referenced in this form or otherwise applicable, the Owner/Developer of each Receiving Site must submit this Certificate and the attached Record of Transactions to the Zoning Administrator at 444 SW 2nd Av., 411 Floor, Miami, Fl. 33130-1910, to be amended/supplemented for each transaction, until which point all TDR square footage identified in this Certificate has been used. A certified copy of TDR Certificate No. TDR -COT -29 shall be filed and recorded in the public records of Miami -Dade County at the expense of the owner, along with a copy of the restrictive covenant, which is subject to the written approval of the Planning and Zoning Director or authorized designee, for the sending site within ten (10) days of issuance of this Certificate of Transfer or this Certificate shall become automatically voided without the necessity of further action by the City. If there is any discrepancy between this Certificate and the official record, the official record shall control. Owner Attestation: I certify that all information provided in this Record of Transaction is correct. Owner Signature ;.; ::i STATE OF FLORIDA ) SS COUNTY OF MIAMI-DADE ) Date /r The foregoing instrument was acknowledged before me this �_ day of 2015 by Le -f, - — He ori, sh? is personally known to me or who has produced dL.�,eit_,. cr as identification. Printed Name Notary Public d-ry or; MIAMI DI:PARTh1r:N'r Or' PIANNII4G AND 7. A,n HisTomcPREsrRVATON SEC110N 444 SW 2Nu AVE 3RD FLOOR ]'IAMi, FL 33130 MIA 1847168880 INES MI Notary Public My Comm. Expli Commission couNry' [ F[oi� " to { JP 1362;0` r rtn�l=� ,, / Submitted into the public Record for item(s) PZ.15 On 05-25-2017 . City Clerk Record of Transactions for Certificate No. TDR -COT -29 Page 4 t` EXHIBIT "A" Parcel 1: Lot 1, Block 5, of BAYS110RE PLAZA UNIT NO 3, according to the Plat thereof as recorded in plat Book 41, Page 73, of the Public Records of Miam i - Dade County, Florida, Parcel 2: Lot 17, Blocks, of-DAYSHORE PLAZA UNIT NO 4, according to the Plat thereof as recorded in Plat Book 42, Fage2, of the Public Records of Nami- Dade County, Florida. Folio No. 01-3219-017-0090 and 01-3219-018-0070. Q'rY O7'- M1AM] DF'TARIM1N1' OP PLANNING AND ZONING 1-ISTORiGPR SERVA'nON SL'cnON 444 S W 2ND AVE 3w' FLOOR MIAMI, FL 33130 WWW.HI STORI a'RLSERVATI ONA91 ANII.00)hI MIA 1847168880 i. s Lb GOUfYr� in a 4 , `n�hC COO![ ,.• Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk L�99 1LM bRW NOD' M V MNO uVA'11SgUkDRIO.LSIH•A Vk AA 0£I ££ Z3' IWV" u0oz3 (u£ aA`d a1Z &S tib NOILVAN3S7'9,jDIUQLSIH JNINO2 JIChU[lr[iI:iOIlIL]ZIVdHQIN1VIIi1[30SLD spnoo A) nod fur° �n��r� f a� I '•Il ;�r k3r.a , u ti` f�7 Per 77 �� II �(��/ �~ 10�tgp�lroe���� o11j411M m ju WOO ann a sI nJJ le4J,1d112f3��183b3H 1 krv'0 jo Aim= V0,80 -1j d0 31VLS 0100-"C-iZifi-.10 'ON Otlo3 'epuolg `4unoZ)aped-jmetyq jo spaooa-d ojjgnd aTp,Io 'LL oSed `691310% luld ul papTO0a00w0T isld Qq) o13uIpa000I8`Ig0ISIAIGEIn1S '9'0'030 IIV .r Apodo.Id $utm=-d au1 JO uotldtjos6c 1�20Z „9„ 1191HX3 5 abed 6Z-10J-2ldl *ON ale:) 4!4J@:) .10} SUOIj:)esueji 10 p.107a2l Submitted into the public Record for item(s) On 05-25-2017 PZ.15 NET >>FAAR.EA - H PROGRAM LE'V"ELAREA SF 1st LEVEL Level 62 61928-50, Levee03, Level 01 3,929.16 141-085S2"!sq ft RETAIL 3,929.16 sq fl 2ND LEVEL 4,1190,8-45 44.908-45 sg ft- Level 02 2.898.59 2J898-59 sq rt 6,827.75 aq ft City Clerk NET SF AREA- NEWCONSTRUMION PARKED PROGRAM L E'l.-"EL AREA (SF OFFICE Level 62 61928-50, Levee03, 7,157.32 141-085S2"!sq ft RETAIL Level 0-1 4,1190,8-45 44.908-45 sg ft- ig,Y-994.27 s (t Green bergTraurig Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk MEMORANDUM OF LAW 5101 AND 5125 BISCAYNE BOULEVARD ELVIS CRUZ'S APPEAL QUESTION Whether the City Commission may grant Elvis Cruz's appeal based on his arguments that the property located at 5125 Biscayne Boulevard is a contributing resource within the Minto/Biscayne Historic District? BACKGROUND 5101 RE CO, LLC (the "Applicant") owns the properties located at 5101 and 5125 Biscayne Boulevard (the "Properties"). The Properties are the subject of Resolution No. HEPB- R-17-016 (the "Resolution") approved by the City of Miami's (the "City") Historic and Environmental Preservation Board's (the "HEP Board") at its February 7, 2017 meeting. On February 17, 2017, Elvis Cruz and the Morningside Civic Association filed an appeal letter with the City, seeking to challenge the Resolution.) The Properties, located within the City's MiMo/Biscayne Boulevard Historic District, are zoned T4-0, pursuant to Miami 21. The 5101 Property is currently improved with the contributing structure known as Bayside Motor Inn Motel (a two (2) story motel built in 1952, in a simple mid-century modern design) (the "Bayside Motor Inn") while the 5125 Property contains a separate non-contributing structure which is attached to the Bayside Motor Inn by a one (1) story entrance lobby which is also a non-contributing structure. On February 7, 2017, the HEP Board considered and approved the Applicant's request for a Special COA for the renovation of the Bayside Motor Inn, demolition of non-contributing structures located within the Properties, and the construction of a new three (3) story structure containing retail and office uses at the 5125 Property (the "Proposed Restoration"). The Proposed Restoration also included an underground parking garage and a new lobby that will connect the Bayside Motor Inn and the proposed retail and office building. On March 17, 2017, a modified appeal letter was filed, in which the Morningside Civic Association withdrew as an appellant. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk LEGAL ANALYSIS 1. The Resolution must be upheld because the application submitted by the Applicant conformed to the Special COA criteria and the structure located at 5125 Biscayne Boulevard was a non-contributing structure at the time the application was filed. A municipality may not deny an application which meets all the requirements existing at the time it is filed. City of Margate v. Amoco Oil Co., 546 So. 2d 1091 (Fla. 4th DCA 1989). An application which meets all the requirements existing at the time of filing may only be denied when, at the time of filing, a proposed action which would preclude the requested approval is pending. See City of Pompano Beach v. Yardarm Rest., Inc., 509 So. 2d 1295 (Fla. 4th DCA 1987); Smith v. City of Clearwater, 383 So. 2d 681, 688 (Fla. 2d DCA 1980). In City of Margate v. Amoco Oil Co., Amoco applied for a permit to develop and operate a "service station" within a zoning district where such a use was allowed. 546 So. 2d 1091, 1092 The City denied the application because it took the position that the proposed use was not a "service station" but instead a "filling station" (a use which was not allowed at the proposed location). Id. The City denied Amoco's application and took steps to amend its code in order to prohibit Amoco's proposed use. Id. at 1093. The Court ordered the City to issue Amoco's permit because Amoco's application "met the municipal code in existence at the time" it was filed and the City's action to amend its code and preclude the proposed use was undertaken after Amoco had filed its complete application. Id. In Dade County v. Jason, 278 So. 2d 311 (Fla. 3d DCA 1973), a developer "made formal application after preliminary discussions with Dade County authorities" to secure a, hililding permit for construction of a multi -family building. After review of the application, the County informed the developer that the permit would be issued upon payment of the required fees. Id. at 311. However, two days later, the developer was informed that no permit would be issued because the County had instituted a building moratorium in an area which included the developer's property. Id. The Court found that because the developer had completed all the necessary prerequisites to obtain its permit the County was estopped from denying the permit even though a building moratorium had been instituted after the developer filed its complete application. Id. at 312. In this case, as in City of Margate v. Amoco Oil Co. and Dade County v. Jason, the Applicant submitted a complete application to the City which, as the City's Preservation Officer and the HEP Board found, complied with all the requirements for a Special COA and the Secretary of the Interior Standards. Mr. Cruz's assertion that the structure located at 5125 Biscayne Boulevard is a contributing structure is simply false since that property is not mentioned within the designation report as being a contributing structure. In fact, the map attached to the designation report depicts that structure as a non-contributing structure. Accordingly, the HEP Board would have to amend the Designation Report in order to include the 5125 Property as a contributing structure. A decision to designate the 5125 property as contributing after the Resolution was adopted would be invalid under City of Margate v. Amoco Oil Co. and Dade County v. Jason because the City would effectively be prohibiting the demolition of the 5125 Property after the Applicant's submittal of its complete application which Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk was approved by the HEP Board with staff's recommendation. As in the previously -cited cases, the Applicant is entitled to the Special COA it applied for and the HEP Board granted because its Application met all the requirements existing at the time it was filed and any potential action by the City to designate the 5125 Property as contributing had not been announced at the time the Application was filed and the HEP Board approved it. 2. The doctrine of equitable estoppel requires that the City deny Mr. Cruz's appeal. Under Florida law, a party acquires vested rights when he/she (1) in good faith relies (2) upon some act of government (3) which leads him or her to incur such substantial obligations and expenses (4) that would make it highly inequitable to interfere with the acquired right. Monroe County v. Ambrose, 866 So.2d 707 (Fla. 3d DCA 2003); see also Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10 (Fla. 1976). A party who meets the above mentioned criteria may successfully raise the doctrine of equitable estoppel in order to challenge a municipality's actions. Id. As one Florida court put it, "A citizen is entitled to rely on the assurances or commitments of [a municipality] and if he does, the [municipality] is bound by its representations, whether they be in the form of words or deeds." Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla. 2d DCA 1975). In the present case, the Applicant relied in good faith on the Designation Report, as approved by the HEP Board in 2006, and the assurances provided by City officials who understood that the 5125 Property was a non-contributing structure. As a result of these conditions at the time it filed the Application, the Applicant invested substantial resources in connection with the Application, including hiring architects and consultants to design a project that met the criteria in Section 23-6.2 of the City Code. Resources that the Applicant would not have invested had it known that the City would contemplate the designation of the 5125 Property as a contributing resource. It would be highly inequitable to interfere with the Applicant's acquired vested rights by granting Mr. Cruz's appeal because the Applicant's decision to invest in the project and the resources and time spent preparing and submitting the Application was based solely on the fact that the 5125 Property was a non-contributing structure. Granting Mr. Cruz's appeal in this case in order to designate the 5125 Property as a contributing resource would be so "grossly unfair" that the Applicant can successfully raise the doctrine of equitable estoppel. See Castro v. Miami -Dade County Code Enforcement, 967 So.2d 230 (Fla. 3d DCA 2007) (holding that a municipality was bound by assurances it made to a property owner when the owner relied on the assurances). CONCLUSION The City should deny Mr. Cruz's appeal because the Applicant met all the requirements existing at the time it filed its application and the Applicant, staff, and the HEP Board understood that the 5125 Biscayne property was a non-contributing structure. Furthermore, the City is estopped from denying/delaying the Applicant's approved Special COA under the doctrine of equitable estoppel because it relied in good faith on representations made by official City documents and City officials which led it to incur substantial obligations and expenses which make it highly inequitable for the City to interfere with its right to proceed with development of the Properties in accordance with the HEP Board approval. Diaz, Carlos 2/2/2017 For Educational Use Only City of Margate v. Amoco Oil Co., 546 So.2d 1091 (1989) 14 Fla. L. Weekly 1496 KeyCite Yellow Flag - Negative Treatment Distinguished by Gardens Country Club, Tnc. v. Palm Beach County, Fla.App. 4 Dist., March 11, 1998 546 So.2d 1o91 District Court of Appeal of Florida, Fourth District. CITY OF MARGATE, Florida, Appellant, V. AMOCO OIL COMPANY, Appellee. No. 87-0920. 1 June 21, 1989. Rehearing Denied July 21, 1989• Property owner filed application for permit to construct and operate gasoline service station and minimart upon parcel of land in zoning district. City denied permit and passed new ordinances prohibiting gasoline stations in the zoning district. Property owner brought action for declaratory and injunctive relief. The Circuit Court, Broward County, Robert Lance Andrews, J., entered judgment in favor of property owner. City appealed. The District Court of Appeal, Downey, J., held that law in existence at time of application, rather than law in effect at time of judgment, applied. Affirmed. West Headnotes (1) (1l Zoning and Planning Time of taking effect; retro active operation 414 Zoning and Planning 414V Construction, Operation, and Effect 414V(A) Tri General 4141215 Time of taking effect; retroactive operation (Formerly 414k235) Law in existence at time of application for permit to construct and operate gasoline W ESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk service station and minimart, rather than law in effect at time of judgment, applied in action brought by applicant after city denied application and passed new ordinances prohibiting gasoline stations in the zoning district; city illegally denied the permit and then tried to pass ordinances that would authorize denial, and where governmental body acts arbitrarily to avoid its duty by delaying matter so as to effectuate change in law adverse to the application, it is proper for court to disregard newly enacted limitations. 4 Cases that cite this headnote Attorneys and Law Firms *1091 Eugene M. Steinfeld, City Atty., Margate, for appellant. Glenn N. Smith and John H. Pelzer of Ruden, Barnett, McClosky, Smith, Schuster *1092 & Russell, P.A., Fort Lauderdale, for appellee. ON REHEARTNG DOWNEY, Judge. Appellee, Amoco Oil Company (Amoco), applied to appellant, City of Margate (the City), for a permit to construct a gasoline service station and mini -mart upon a parcel of land within the city, which Amoco held under contract. The City denied the requested permit and Amoco instituted this suit for declaratory and injunctive relief. From a final judgment in favor of Amoco, holding that Margate acted illegally in the premises, the City has perfected this appeal. The primary issue presented on appeal is whether the trial court erred in determining that the City acted illegally in denying the permit requested in 1980. Secondary issues involve the question of what law applies -the law in existence at the time of the application or, as the City describes it, "current law," which we take to mean the law in effect at the time of the judgment. Diaz, Carlos 2/2/2017 For Educational Use Only City of Margate v. Amoco Oil Co., 546 So.2d 1091 (1989) 14 Fla. L. Weekly 1496 The case was tried before the court for approximately eight days over a ten-month period, after which the chancellor entered a very comprehensive, analytical final judgment, including extensive findings of fact and conclusions of law, which have facilitated our appellate review. Based on our consideration of the appellate briefs, the exhibits, and the record generally, we conclude that reversible error has not been demonstrated. A brief resume of the facts as found by the trial court reveals that Amoco filed an application for a permit with the City to construct and operate a gasoline service station and mini -mart within the city in a zoning district designated "B-2." Both "service stations" and "filling stations" were permitted uses within said district; however, pursuant to section 3.18 of the Code, "filling stations" had certain special conditions, while "service stations" had none. Among the limitations on the use of the property for "filling stations" was that such use was not permitted within 750 feet of another plot used as a filling station nor within 250 feet of any plot used as a church, playground, hospital, or public school. These limitations were prompted for "filling stations" as opposed to "service stations" because the lormer, by definition, allowed a more intensive use of the property. For example, a service station was permitted to dispense at retail only automobile fuels and oil; whereas, a filling station was authorized to furnish, in addition, supplies, equipment, and minor repair services. The latter is defined in the Code as "incidental body or fender work, or other minor repairs, painting or upholstering, replacement of parts, and motor service to passenger cars and trucks not exceeding 1 '/z tons capacity." Amoco's application was referred to the City Development Review Committee, which the court found refused to follow the distinction between service and filling stations and characterized Amoco's application as an application for filling station use. Having taken that position, the committee naturally applied section 3.18 of the Code and noted that the site in question was within 250 feet of a commercial nursery known as The Country Day School, which had a fenced -in play area. The committee thus denied approval of the Amoco application because of Lhe 250 foot playground limitation of section 3.18 and because it violated the platting requirements of section WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 3.10.1 of the Code. It is interesting to note that the evidence showed that this 250 foot limitation had never been invoked before in a similar situation; that it was seriously suspected to be constitutionally flawed because there was no inverse requirement prohibiting playgrounds from being located in close proximity to filling stations. - City of Miami v. Woolin, 387 F 2d 893 (5th Cir. 1968); Saar i,. Town of Davie, 308 F.Supp. 207 (S.D.Fla.1969). In addition, the City dropped the alleged platting ordinance violation as a ground for denial of the permit because it, too, was recognized as probably unconstitutional and it was subsequently repealed. Amoco then requested the matter be referred to the city attorney, who in turn placed it on an agenda to be considered by *1093 the city commission. After a hearing, and extensive discussion, the commission supported the Development Review Committee's decision and rejected the application. Based upon the evidence presented, the trial court concluded that the commission determined that, regardless of the Code provisions, they did not want a gasoline station in this locality. The trial court found that Amoco took no immediate action to challenge the City's rejection because it wanted to try to resolve the problem amicably and avoid litigation with the city in which it would be operating. Instead, Amoco applied for a rezoning of the property to a B-3 classification, which would permit its contemplated use. When all else seemed futile, Amoco commenced this suit in July 1982 to enforce its rights as it envisioned them. The court found that, after the City originally denied Amoco's permit application, it set about to change the Code so that Amoco's intended use of the property could not be legally permitted. Thus, on September 24, 1980, the City enacted Ordinance 1500.191, which the trial judge characterized as having the effect of devastating the Amoco site plan. The new ordinance abolished the distinction between a service and a filling station; it eliminated the 2.50 foot limitation and amended section 3.18 so that Amoco's site plan would not comply by increasing the 750 foot limitation between stations to 1000 feet (Amoco's site is 962 feet from another station site). It provided that no station driveway could open on a street 60 feet or less in width. Amoco's plan provided for a driveway opening on a street exactly 60 feet in width. Before the amendment, Diaz, Carlos 2/2/2077 For Educational Use Only City of Margate v. Amoco Oil Co., 546 So.2d 1091 (1989) 14 Fla. L. Weekly 1496 section 3.18 contained no limitation on the size of streets abutting a station driveway. Furthermore, the ordinance enlarged the size of a station plot so that the minimum size is .5 acres. Predictably, Amoco's plot is .46 acres. Then, on November 5, 1980, the City enacted Ordinance 1500.198, which completely eliminated gas stations as a permitted use in B-2 districts. in this case, Amoco attacked the validity of the new ordinances, 1500.191 and 1500.198, because they were not properly enacted since they did not comply with the publication requirements of section 166.041, Florida Statutes, which the trial court held were "mandatory and jurisdictional" requirements. The City thereupon, while this suit was pending, enacted two additional ordinances, 1500.227 and 1500.244, on November 16, 1982, which revised the permitted uses in the B-2 and B-3 zones and prohibited gasoline stations and mini -markets in B-2 zones. Thereafter, the City contended that, regardless of the illegality in the City's rejection of Amoco's application in the first instance, the subsequent enactment of Ordinances 1500.227 and 1500.224 controlled Amoco's rights vis-a-vis the permitted use of this property. The trial judge expressly stated that lie recognized and was mindful that municipal legislation of this character is entitled to a strong presumption of correctness; that the court is not a super -zoning board and should not substitute its judgment for that of the City; and that "mere debatability regarding the rationale for, and the desirability" of, such ordinances is not sufficient to render them unconstitutional. Nevertheless, the court concluded that Amoco was entitled in 1980 to a permit based on its application and site plan because it met the municipal code in existence at the time. He found that the denial of Amoco's application and the City's subsequent actions "clearly demonstrate that the City's original denial of the Amoco site plan was done to gain the City time to pass new laws which would prevent the construction of *1094 the Amoco service station on the property." Therefore, the court found the City acted "arbitrarily, capriciously, discriminatorily and illegally" in denying the permit and, thus, created an estoppel to enforce the new ordinances which purported to change the permitted use of the property by Amoco. The court relied upon such cases as Aiken v. E. B. Davis, Inc., 106 Fla. 675, 143 So. 658 (1932), Dade County v. Jason, 278 So.2d 311 (Fla. 3d DCA VVESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 1973), and others, to which we would add Davidson v. Cite of Coral Gables, 119 So.2d 704 (Fla. 3d DCA 1960), cert. discharged, 126 So.2d 739 (Fla.1961). The City argues that, even though the procedure in enacting the subsequent ordinances did not technically conform to the advertisement requirements of section 166.041, the trial court should not have relied upon the invalidity of the law absent a vested right/equitable estoppel, citing City of Fort Pierce n Davis, 400 So.2d 1242 (Fla. 4th DCA 1981). In that case, however, this court simply held that equitable estoppel would not apply to enjoin the City from readvertising and holding a public hearing, etc., to readopt the ordinance in question, which was void for failure to give the notice. Davis is distinguishable from the instant case because it did not involve an arbitrary and capricious denial of a permit to construct a lawful use. In Davis, a permit was granted and then a neighbor sought to change the zoning. In this case, the City illegally denied a permit that should have been issued and then tried to pass ordinances that would authorize a denial. This evidences bad faith and an avoidance of duty, such that estoppel should apply. A public body may not defend its unauthorized actions by subsequently passing or obtaining authorization. Gulfstream Park Racing Association, Inc. v. Division of Pari-Mutuel Wagering, 407 So.2d 263 (Fla. 3d DCA 1981). No zoning change was pending at the time of Amoco's application that would prohibit service stations on Amoco's site (making Citv oj'Pumpanu Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295 (Fla. 4th DCA 1987), distinguishable) and, if there is a finding of bad faith, or unreasonable refusal, or delay in an application, then the law at the time of the application should be applied. Where a governmental body acts arbitrarily to avoid its duty by delaying the matter so as to effectuate a change in the law adverse to the application, it is proper for the court to disregard the newly enacted limitations. Davidson v. City of'Coral Gables, 119 So.2d 704 (Fla. 3d DCA 1960). As noted by the Third District Court of Appeal in Dade Count v v. Jason, 278 So.2d 311, 313, n. 1 (Fla. 3d DCA 1978): If ... action on the application is unreasonably refused or delayed Diaz, Carlos 2/2/2017 For Educational Use Only City of Margate v. Amoco Oil Co., 546 So.2d 1091 (1989) 14 Fla. L. Weekly 1496 until after the change has become effective, or the issuing officer arbitrarily fails to perform a ministerial duty to issue the license or permit promptly on an application Which conforms to the law at the time of filing, the courts have held that the law at the time of filing of the application controls. Based upon its findings of fact and conclusions of law, the trial court ordered the City to take appropriate action Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk to approve Amoco's site and other plans connected with the intended use of the property in accordance with city ordinances in effect in March 1980. We affirm that judgment. LETTS and STONE, JJ., concur. All Citations 546 So.2d 1091, 14 Fla. L. Weekly 1496 Footnotes The court cited the following rather amusing statement of one of the commissioners, made during the discussion of the Amoco application: End of Document "I used to close my eyes and say I wouldn't want it in my backyard, but I would want it in somebody else's back yard.... but at this time, it happens when I do close my eyes and say I wouldn't want it in my own back yard, it is in my back yard. It is around the corner from me and I say is there any way possible that the land could be sold to some other kind of firm or other kind of outfit besides that? I realize that the zoning B-2 would allow him to put In a filling station but not a repair shop.... It is a beautiful corner but this time I have to open my eyes and go the opposite way and I don't think it is going to be favorable for putting a station at this time." ©2017 Thomson Reuters No claim to original U S Government Works WESTLAW Submitted into the public Record for item(s) PZ.15 Diaz, Carlos 2/212017 On 05-25-2017. City Clerk For Educational Use Only City of Pompano Beach v. Yardarm Restaurant, Inc., 509 5o.2d 1295 (1987) 12 Fla. L. Weekly 1722 IiI injunction 131 injunction — Clear, likely, threatened, anticipated, or ;= Passage of ordinances and laws in general intended injury ^112 _ Injunction Injunction 2121V Particular Subjects of Relief 4. Irreparable injury 212TV(E) Governments, Laws, and 212 injunction Regulations in General 2121 injunctions in General;Permanent 212kl249 Passage of ordinances and laws in Injunctions in General general 212T(B) Factors Considered in General (Formerly 212k77(1)) 212k1041 Tnjury, Hardship, Harm, or Effect Enactment of ordinance by municipality is "administrative action," which court should WESTLAW 212k1044 Clear, likely, lhrealened, anticipated, 509 So.2d 1295 or intended injury (Formerly 212k 14) District Court of Appeal of Florida, 112 _ Tnjunclion Fourth District. 2121 Tnjunclions in General;Permanenl injunctions in General CITYOF POMPANO BEACH, Appellant, 3131(B) Factors Considered in General N'- 212k1041 injury, Hardship, Harm, or Effect YARDARM RESTAURANT, INC., 212k1046 irreparable injury a Florida corporation, and Sunrise (Formerly 212k14) Savings & Loan Association of Florida, To obtain injunction, it is not necessary a Florida corporation, Appellees. to show that irreparable harm has already been done, but only that there is reasonable No. 85-2821. probability that harm will occur unless defendant's action is prevented. July 15, 1987. Cases that cite this headnote Property owner sought to enjoin city from subsequently repealing special height exception granted to property [2] Zoning and Planning owner for construction of building. The Circuit Court, Injunctive relief Broward County, J. Cail Lee, J., granted permanent injunctive relief, and city appealed. The District Court 414 Zoning and Planning 414X Judicial Review or Relief of Appeal, Hersey, C.J., held that: (1) property owner 414X(D) Determination made sufficient showing of "irreparable harm" by 414k1714 Affirmative Relief from Court demonstrating that construction project would not be 414k1719 Injunctive relief economically feasible if special height exception was (Formerly 414k568) repealed, but (2) city's early obstructionist tactics after Property owner which sought to enjoin exception was granted did not constitute sufficient basis zoning authority from repealing its special for stopping city from repealing exception. height exception made sufficient showing of "irreparable harm" by demonstrating Reversed and remanded. that construction project would no longer be economically feasible if exception was repealed. West Headnotes (8) 1 Cases that cite this headnote IiI injunction 131 injunction — Clear, likely, threatened, anticipated, or ;= Passage of ordinances and laws in general intended injury ^112 _ Injunction Injunction 2121V Particular Subjects of Relief 4. Irreparable injury 212TV(E) Governments, Laws, and 212 injunction Regulations in General 2121 injunctions in General;Permanent 212kl249 Passage of ordinances and laws in Injunctions in General general 212T(B) Factors Considered in General (Formerly 212k77(1)) 212k1041 Tnjury, Hardship, Harm, or Effect Enactment of ordinance by municipality is "administrative action," which court should WESTLAW Submitted into the public Record for item(s) PZ.15 For Educationall Use Only Diaz, Carlos 17 On 05-25-2017 . City Clerk se City of Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295 (1987) 12 Fla. L. Weekly 1722 not enjoin absent fraud or gross abuse of (Formerly 414k549) discretion. City's early obstructionist tactics, after 3 Cases that cite this headnote 141 Zoning and Planning 4= Public health, safety, morals, or general welfare 414 Zoning and Planning 41,111 Validity of Zoning Regulations 4141I(A) In General 414k 1040 Public health, safety, morals, or general welfare (Formerly 414k27) Whether enactment of zoning ordinance is unreasonable or arbitrary depends upon potential effect of ordinance ori safety, health, morals, and general welfare of community. 1 Cases that cite this headnote [51 Zoning and Planning Injunctive relief 414 Zoning and Planning 414X Judicial RevieNv or Relief 414X(D) Determination 414k]714 Affirmative Relief from Court 414k1719 TnjuncLive relief (Formerly 414k568) Potential effect of proposed zoning ordinance on safety, health, morals, and general welfare of community was matter which should have been weighed, in first instance, by zoning authority; accordingly, injunction which prevented zoning authority from conducting hearing on proposed ordinance was improvidently entered. Cases that cite this headnote 161 Zoning and Planning Duration of rights 414 Zoning and Planning 414TX Variances and Exceptions 4141X(C) Effect of Determination of Variance or Exception; Revocation 414k]567 Duration of rights WESTLAW property owner had been granted special height exception for construction of building, did not estop city from later repealing exception, where property owner had failed to make any real effort to construct building during the more than five-year period which followed cessation of obstructionist activity. 1 Cases that cite this headnote 171 Zoning and Planning Time for determination 414 Zoning and Planning 414ViII Permits, Certificates, and Approvals 414VTTT(B) Proceedings on Permits, Certificates, or Approvals 414k1424 Determination 4141428 Time for determination (Formerly 414k439.5) Municipality may properly delay issuance of building permit, where there is change in zoning in progress which would affect permit. 2 Cases that cite this headnote 181 Zoning and Planning Revocation or modification 414 Zoning and Planning 4141X Variances and Exceptions 4141X(C) Effect of Determination of Variance or Exception;Revoco-ition 414k1568 Revocationormodification (Formerly 414549) Zoning authority was not equitably estopped from repealing special height exception granted to property owner for construction of building, where owner had made no real effort to construct building and did not show that it had incurred extensive obligations such as might justify application of equitable estoppel. Cases that cite this headnote Diaz, Carlos 2/2/2017 For Educational Use Only City of Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295 (1987) 12 Fla. L. Weekly 1722 Attorneys and Law Firms *1296 Donald C. Roberge, Pompano Beach, for appellant. Stewart P. Chambers of Faircloth & Chambers, P.A., Fort Lauderdale, for appellee Yardarm Restaurant, Inc. James E. Tribble of Blackwell, Walker, Fascell & Hoehl, Miami, for appellee Sunrise Say. and Loan Assn. Opinion HERSEY, Chief Judge. Appellant, the City of Pompano Beach, in October 1973, enacted an ordinance granting appellee, Yardarm Restaurant, a special exception to the city's ten -story building height limitation. The proposed building was never constructed and appellee's building permit expired by operation of law in May of 1985. In August of 1985 the city proposed the enactment of an ordinance repealing the special height exception. Shortly thereafter appellee commenced the process of obtaining a new building permit. Because of the pending zoning change the city refused to process the application. Appellee filed suit, resulting in an order permanently enjoining the city from enacting an ordinance revoking the special exception to height limitation. *1297 [11 121 Appellant makes a two-pronged attack on the injunctive order. First the city argues that. where no injury will occur until after an ordinance is passed, injunctive relief to prevent enactment of the ordinance is not appropriate. The third district has taken a somewhat contrary position, holding, in Paul's Drugs, hnc. V. Soarthern Bell Telephone & Telegraph Co., 175 So.2d 203 (Fla. 3d DCA 1965), that it is not necessary to show that irreparable harm has already been done but only that there is a reasonable probability that harm will occur unless the action is prevented. We agree with that position and find that the test is satisfied here by the showing that if the proposed ordinance is enacted, the project will no longer be economically feasible. Further, appellee is presently suffering harm because the city will not issue the building permit. A case from this court, Toavn of Palm Beach v. Pabnn Beach County, 332 So.2d 355 (Fla. 4th DCA 1976), W ESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk relied on as standing for a different proposition, being concerned only with a temporary injunction, is inapposite. 13] The city's primary position is based upon the proposition that a court should not enjoin administrative action. The enactment of an ordinance by a municipality is an exercise by an agency of its legislative function. it is reasonably well established that, in the absence of fraud or a gross abuse of discretion, a court should not enjoin administrative action. Johnson v. McNeill, 151 Fla. 606, 10 So.2d 143 (1942); Hillsborough County Aviation Authority v. Taller & Cooper, Inc., 245 So.2d 100 (Fla. 2d DCA 1971). There is no suggestion of fraud on this record. The issue, then, is whether enjoining enactment of the repealing ordinance constitutes a gross abuse of discretion. 141 151 Whether enactment of a zoning ordinance is unreasonable or arbitrary depends upon the potential effect of the ordinance on the safety, health, morals, and general welfare of the community. Such factors are appropriately weighed and compared in the first instance by the legislative body governing the municipality, in this case the zoning authority of the City of Pompano Beach. See Stengel v. Crandon, 156 Fla. 592, 23 So.2d 835 (1945); Mal -ell v. Hard p, 450 So.2d 1207 (Fla. 4th DCA 1984); Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979). Because the city has been enjoined from conducting hearings, the validity of the proposed ordinance in this regard has never been determined. Twelve years having elapsed since the special exception was granted, it is particularly necessary and appropriate that the zoning authority be given the opportunity to consider anew the effect that continuation of the special exception would have on the safety, health, and general welfare of the community as it is presently constituted. Preliminarily, then, we determine that the injunction was improvidently entered. Based upon its hypothesis that without the special exception its project would no longer be viable, appellee relies on arguments grounded in estoppel and equitable estoppel to sustain the permanent injunction. 161 171 As to estoppel, neither the city's early obstructionist tactics nor its later refusal to process the renewed application for a building permit constitutes a Diaz, Carlos 2/2/2017 For Educational Use Only City of Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295 (1987) 12 Fla. L. Weekly 1722 sufficient basis for estopping the city from repealing the special exception to the height limitation. The former is insufficient because the complained -of activities took place in 1979 and before. Appellee failed to make any real effort to construct the building during the more than five-year period that followed cessation of that activity. Appellee further submits that the city in 1985 unlawfully refused to issue a new building permit. At that time there was a change in zoning in progress which would affect the permit. See Smith v. City of Clearuvaler, 383 So.2d 681 (Fla. 2d DCA 1980), rev. dismissed, 403 So.2d 407 (Fla.1981). Under such circumstances a municipality may properly delay issuance of a building permit. Smith; City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th DCA), cert. denied, 279 So.2d 871 (Fla. 1973). [8] Appellee's second basis for challenging repeal of the special exception, equitable *1298 estoppel, has no application on the facts of this case as they appear from the record on appeal. Equitable estoppel may be applied to limit the exercise of zoning power "when a property owner relying in good faith upon some act or omission of End of Document WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk the [governmental] body has made a substantial change in position or incurred extensive obligations and expenses." United Resources, 374 So.2d at 1050. The mere existence of a present use right, however, is not a sufficient basis for application of equitable estoppel. City of Fort Pierce v. Davis, 400 So.2d 1242 (Fla. 4th DCA 1981). Appellee has not shown that extensive obligations have been incurred or otherwise demonstrated such a change in position as to justify the application of equitable estoppel in this case. Accordingly, we reverse the order, vacate the injunction and remand for such further proceedings, if any, as rmy be appropriate. REVERSED and REMANDED. ANSTEAD and LETTS, JJ., concur. All Citations 509 So.2d 1295, 12 Fla. L. Weekly 1722 1 ,-20^7 Thon-,s3r, No onoinvl U 0 Diaz, Carlos 2/2/2017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 Kcl'Clte Yellow Flag - Negative Treahrncnt Called into Doubt by Coral Springs Street Systems, inc. v. City of Sunrise, I l lh Cir.(Fla.). June 7. 2004 383 So.2d 681 District Court of Appeal of Florida, Second District. Derwin B. SMITH, II, Individually, etc., et al., Appellants, v. CITY OF CLEARWATER, Florida, et al., Appellees. No. 78-1501. 1 April 16,1980. Rehearing Denied May 21,1980. Owners of parcels on low-lying peninsula brought action challenging city's zoning ordinance amendments under which more than half of such owners' property was rezoned as "aquatic lands" usable only for recreational pursuits, under which high-rise units with parking below could no longer be built on parcels and under which only limited number of single-family structures on stilts could be constructed on parcels. The Circuit Court, Pinellas County, David Seth Walker, J., entered judgment against owners, and they appealed. The District Court of Appeal, Second District, Grimes, C. J., held that: (1) evidence warranted finding that amendments did not have effect of denying owners beneficial use of their property in violation of State and Federal Constitutions; (2) fact that property was so low that floodplain and setback requirements worked against economies of residential development did not preclude city from zoning property for residential use; (3) evidence supported conclusion contrary to contention that rezoning wetlands as aquatic lands constituted a "taking" for public use so as to require inverse condemnation remedy; (4) city was not equitably estopped from applying its amendments to parcels; (5) even if property owner has not made the substantial expenditures in reliance on city's position necessary to create estoppel, lie is entitled to building permit within provisions of' existing zoning if rezoning ordinance is not pending when proper application is made; and (6) zoning changes in question were "pending" when owners were WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017, City Clerk notified that their project was no longer considered a "development of regional impact." Affirmed. West Ileadnotes (8) )1I Zoning and Planning; Amendment or Rezoning, Sufficiency of Evidence 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)2 Additional Proofs and Trial De Novo 414k1668 AmendmentorRezoning, Sufficiency of Evidence 414kl669 in general (Formerly 414652.1, 414652) in action wherein owners of parcels on low-lying peninsula challenged city's zoning ordinance amendments, under which more than one half of such owners' properly was rezoned as "aquatic lands" useable only for recreational pursuits, under which high-rise units with parking below could no longer be built on such parcels and under which only a limited number of single-family structures on stilts could be constructed on the parcels, evidence warranted finding that amendments did not have effect of denying owners of beneficial use of their properly in violation of State and Federal Constitutions. 1 Cases that cite this hcadnote 121 Zoning and Planning �= Area and Frontage requirements 414 Zoning and Planning 41411 Validity of Zoning Regulations 414ii(B) Particular Matters 414k 1066 Architectural or Structural Designs 414k1068 Area and frontage requirements (Formerly 414k63) Diaz, Carlos 2/2/2017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 City's subjecting of property on low-lying peninsula to zoning restricting use of the land_ to single-family residences with lots of not less than 10,000 square feet was "fairly debatable"; mere fact that the land was so low that floodplain and setback requirements worked against economies of residential development did not preclude cities from zoning the properly for residential use. Cases that cite this headnote 131 Eminent Domain r Wetlands and coastal protection 148 Eminent Domain 1481 Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking;Police and Other Powers Distinguished 148k2.27 Environmental Protection 148k2.27(2) Wetlands and coastal protection (Formerly 148k2(1.2)) In action wherein owners of parcels on low-lying peninsula challenged city's zoning ordinance amendments under which more than half of owncrs' property was rezoned as "aquatic lands" usable only for recreational pursuits, evidence supported trial court's conclusion contrary to owners' contention that rezoning their wet lands as aquatic lands constituted a "taking" for public use so as to require an inverse condemnation remedy. 2 Cases that cite this headnote 141 Zoning and Planning r Estoppel or inducement 414 Zoning and Planning 414Xi Enforcement of Regulations 4141767 Defenses to Enforcement 414k1770 Estoppel or inducement (Formerly 414762) Doctrine of equitable estoppel will limit a local government in exercise of its zoning power when a property owner relying in good faith on some act or omission of the government has made such a subalantial change in position or incurred such excessive WESTLAW 151 161 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk obligations and expenses that it would be highly inequitable and unjust to destroy the rights lie has acquired. 1 Cases that cite this headnote Zoning and Planning 4- Estoppel or inducement 414 Zoning and Planning 414XI Enforcement of Regulations 4141767 Defenses to Enforcement 414k1770 Estoppel or inducement (Formerly 414762) City, which adopted zoning ordinance amendments rezoning most of three parcels within low-lying peninsula as "aquatic lands" usable only for recreational pursuits, precluding construction of high-rise units with parking below on such parcels and permitting construction of only a limited number of single-family structures on stilts on the parcels, was not equitably estopped from applying such amendments to the parcels where there was no showing that owners of the parcels had substantially changed position or incurred large expenses in reliance on an act or omission of the city and the most that the city had done was to engage in some general "foot dragging." Cases that cite this headnote Zoning and Planning i:= Estoppel to claim or oppose 414 Zoning and Planning 414VIIi Permits. Certificates, and Approvals 414VIII(A) In General 414k1353 Estoppel to claim or oppose (Formerly 414377) Where a property owner, in relying in good faith on some act or omission of city, has made such a substantial change in position or incurred excessive obligations, municipality will be estopped from denying him building permit on grounds that his project constitutes a nonconforming use, but even if he has not made the substantial expenditures in reliance Diaz, Carlos 2/2/2017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 on city's position necessary to create an estoppel, lie is still entitled to obtain a building permit within provisions of existing zoning so long as a rezoning ordinance, which will preclude the intended use, is not pending when a proper application is made. 9 Cases that cite this headnote 171 Zoning and Planning Change of regulations as affecting right 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A) in General 4141350 Right to Permission, and Discretion 414k 1352 Change of regulations as affecting right (Formerly 414076) For zoning change to be "pending," within meaning of rule that owner is eutitled to building permit within provisions of existing zoning if rezoning ordinance is not pending when proper application is made, the change does not have to be before city council if appropriate administrative department is actively pursuing it; there must be active and documented efforts of those authorized to do the work which, in normal course of municipal action, culminate in the requisite zoning change and council or planning board must be aware that such efforts are going forward; for zoning change to be "pending" it is not essential that property owner be advised of those activities; receding from Cil i• of Hollru,00d r. Pettersen, 178 So.2d 919. 3 Cases that cite this headnote 181 Zoning and Planning 4- Change ofregulations as affecting right 414 Zoning and Planning 414VII1 Permits, Certificates, and Approvals 414VTIi(A) Tn General 414k[350 Right to Permission, and Discretion 4141352 Change of regulations as affecting right (Formerly 414376) wESTLAw Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk For purposes of rule that an owner would be entitled to obtain building permit within provisions of existing zoning so long as rezoning ordinance would not be pending when proper application was made, certain zoning changes were "pending" when property owners were notified that their project was no longer considered a "development of regional impact" where city's planning department had recommended such zoning changes and city commission had directed department to go forward with drafting of appropriate ordinances. 5 Cases that cite this headnote Attorneys and Lam, Firms *683 Joseph P. McNulty of McNulty, Moritz & Dickey, Largo, and John T. Allen, Jr., P. A., St. Petersburg, for appellants. Tom R. Moore, Clearwater, for appellee City of Clearwater. Andrew J. Rodnite, Asst. County Atty., Clearwater, for appellee Pinellas County Planning Council. Opinion GRIMES, Chief Judge. This is an appeal from a judgment rejecting an attack by three property owners on certain amendments to the zoning ordinances of the City of Clearwater. Appellants each own one of three contiguous parcels on a low-lying peninsula in upper Tampa Bay known as Cooper's Point. The property lies on the eastern shore of the City of Clearwater and just north of the Courtney Campbell Causeway (State Road 60). Appellants or their families have owned the three parcels for many years. Prior to the amendments at issue in this case, the city had placed all of the land in a CG zone (general business district). i This classification permitted single family or multiple dwelling uses with a density restriction which Diaz, Carlos 2/2/2017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 limited residential development to thirty-four units per acre. During 1973 appellants combined their resources in order to develop the three parcels under a unified plan. 2 They employed an architect and planner, Robert C. Wiclage, to design the project, and on December 5, 1973, lie first contacted city officials to advise them of the plan he had developed. He testified that he talked with City Planning Director Paul Berginan and had several discussions with him over the next two months during which they pledged each other full cooperation in the protection of the ecology and the interest of the landowners. Mr. Wielage said that these discussions gave him no reason to believe that the city would oppose the development provided there was adequate protection for the environment. On April 11, 1974, Mr. Wielage submitted an initial site plan to the city's planning department. Further meetings ensued between Mr. Wielage and representatives of the planning department concerning certain mangrove areas and the precise locations of the high water mark since the city's regulations required that developments be no less than thirty feet away from mangroves and begin at an elevation of not less than 1.65 feet above the mean high water mark. On June 19, 1974, Mr. Wiclage tentatively submitted final plans to the city's p1nnning department which told him that lie should *684 make application to the state for a determination that the plan was not a "development of regional impact" (DRI). Mr. Wielage acceded to the city's request and made an application to the Division of State Planning. The Division of State Planning initially determined that the proposal was a DRi and that this would require the property owners to formally comply with the provisions of Chapter 380, Florida Statutes (1973), relating to approval for such a development. Appellants amended their proposal but the state advised them that the project continued to have DRI status. Appellants then made further changes to the proposal, and on January 9, 1975, the Division of State Planning ruled that the proposal as then constituted was not a development of regional impact. WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk In the meantime, the city had not processed the first applications for the development submitted on November 6, 1974, because of' the position taken by the Division of State Planning. Also some of the personnel of the planning department were interested in stopping the project altogether. In fact, they encouraged the Division of State Planning to continue to declare the project to be a DRI. On December 9, 1974, the planning department recommended in writing to the city manager that [lie city commission downzone Cooper's Point so that all upland area except the frontage on State Road 60 would fall in an RS -200 (single family residential) zone and that all non -upland areas would be classified as aquatic land. On January 6, 1975, the city commission expressed its approval of these recommendations and directed that the appropriate officials prepare ordinances to this effect. On April 21, 1975, the city commission adopted ordinance 1561 which made its existing "aquatic lands" zoning applicable to four new wetlands areas around the city, including approximately ninety acres of Cooper's Point or more than fifty percent of appellants' property. The aquatic lands designation essentially limited use of the property placed in that zone to recreational pursuits. Then, on May 19, 1975, the commission enacted ordinance 1566 which directly affected only appellants' property. This ordinance rezoned eight and one half acres near State Road 60 from CG to CP (Parkway Business District) which was a more restricted use than CG. 3 It also rezoned the balance of the property from CG to RS -100 which restricted use of the land to single family residences with lots of not less than 10,000 square feet. The RS -100 zone was a less restrictive classification than the RS -200 zone which the planning department had earlier recommended. However, it should be noted that while up to 4.3 units per acre were permissible under RS -100, because of the peculiar geographic configuration of Cooper's Point, not more than 2.2 units per acre were physically possible. Appellant's problems were exacerbated by the fact that the Cooper's Point area is in a "Flood Plain" so that federal regulations require all residences to have their first floor of living area not less than eleven feel above mean high water. The net effect of the two ordinances was that appellants could no longer build highrise units with parking below but could only Submitted into the public Diaz, Carlos 2/2/2017 Record for item(s) PZ.15 For Educational Use Only On 05-25-2017. City Clerk Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 construct a limited number of single family structures on trial court pointed out, there were serious environmental stilts. considerations which justified the placing of appellants' wetlands within the aquatic lands zone. 111 121 Appellants submit that Cooper's Point is now, for all practical purposes, undevelopable. Thus, they contend that the downzoning of their property to RS -100 was void as being capricious, arbitrary, unreasonable and confiscatory. The trial court ruled against appellants on this issue, and we find no reason to disturb its decision. There was sufficient evidence from which the court could find that the disputed ordinance did not have the effect of denying appellants the beneficial use of their property in violation of the state and federal constitutions. Cf. Estuary Properties, inc. v. Askew, 381 So.2d 1 126 (Fla.] st DCA 1979), in which the property owner lost essentially all practical use of his property. Moreover, we cannot say that the decision *685 to subject Cooper's Point to RS -100 zoning was not "fairly debatable" within the well- established rules for amendments to zoning ordinances. See e. g. Central Bank & Trust Co. v. Board of County Commissioners, 340 So.2d 503 (Fla.3d DCA 1976); Town of North Redington Beach v. Williams, 220 So.2d 22 (Fla.2d DCA 1969). In this connection' it should be observed that the land on the mainland to the west of' Cooper's Point carried a residential zoning classification. The fact that Cooper's Point is so low that the flood plain and setback requirements work against the economics of residential development does not mean that the City of Clearwater cannot zone the property for residential use. As a practical matter, municipalities cannot be required to adjust their ordinary residential zoning classifications to take into account every peculiar land elevation and configuration. 131 Appellants also argue that the ordinance which rezoned their wetlands as aquatic lands constituted a "taking" for public use, requiring an inverse condemnation remedy. Once again we believe the record supports the trial court's conclusion. While there is no doubt that appellants will not be able to do much with their wetlands in the face of aquatic zoning, there wasii't very much they could have done with this land without such zoning. Except for a thirty foot strip above the high water mark, all of the property involved was submerged land. There were no bulkhead lines, and the record reflects that it was most unlikely that appellants would have been able to obtain permission to fill the land. Also, as the WESTI.AW Appellants' third point requires more elaboration. 4 They argue that because of the manner in which city officials dealt with them, the doctrine of equitable estoppel should prevent the city from applying the amendments to its zoning ordinance to their property. In rejecting this claim, the trial court said: From the outset the plaintiffs have complained that the city was estopped to deny to them the development of the peninsula to which they aspire. The plaintiffs complained that the old zoning, Commercial -General, would have allowed the full development of Cooper's Point in accordance with their plans subject only to the final determination of the aquatic land boundaries. The plaintiffs also complained that throughout their official negotiations with the city they were lulled into a sense of security by the words and actions of the agents and employees of the city, who seemed to indicate acceptance of their plans subject only to a determination by the state that their plans did not constitute a "development of regional- impact." The plaintiffs complained that as a direct result of the prior zoning of the peninsula and of the apparent tentative appruval by the city of their proposed development, they materially changed their position, to their detriment, in reliance thereon. However, at the end of the plaintiffs' case in chief, this court granted the defendant city's motion for directed verdict with regard to the plaintiffs' allegations that the defendant should be estopped to deny to them the zoning which previously existed upon the peninsula. In our ruling, which we hereby reconfirm, we found that the optimistic interpretation by the plaintiffs of what can best be described as bare innuendo voiced by the employees and agents of the city did not give rise to a circumstance upon which the plaintiffs could legally rely. We also found and again state that the city spoke no word, committed no overt act or deed upon which the plaintiffs could have reasonably relied. Further, we found that the lack of discouragement on the part of the city did not equal the active official encouragement upon which the plaintiffs could *686 have legally Diaz, Carlos 2/212017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 relied. Finally, it was the finding of this court that the city's failure to preliminarily discourage a developer from a project which did not bask in the sunshine of city approval did not constitute, in the court's mind, an official activity or indicia as could be legally relied upon by the plaintiffs. In substance, and as was stated before, we find there simply was no hard evidence to substantiate the plaintiffs' allegations that the city should be estopped. Therefore, and again, the plaintiffs' complaint for relief under the theory of estoppel, is denied. 141 j51 The doctrine of equitable estoppel will limit a local government in the exercise of its zoning power when a property owner (1) relying in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or incurred such excessive obligations and expenses that it would be highly inequitable and unjust to destroy the rights lie has acquired. Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla.2d DCA 1975); City of Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867 (Fla.4lh DCA 1973). Measuring the facts of the present case against this standard, we cannot quarrel with the court's conclusion that appellants did not present enough evidence to get past a motion for directed verdict (st icily speaking, a motion for involuntary dismissal). There simply was no showing that appellants substantially changed position or incurred large expenses in reliance upon an act or omission of the city. The most that the city did was to engage in some general "foot dragging." While it is true that some members of the city planning department were working behind the scenes to thwart the project, their overt words and actions could not be said to have affirmatively misled appellants so as to cause them to incur the legal and architectural fees that would not have been required in any event. Although there was nothing in the city ordinances which required appellants to first obtain a determination that their project was not a development of regional impact, they cannot seriously contend that this was not a reasonable suggestion, and Mr. Wielage certainly acquiesced in it. Moreover, as originally conceived, the project was a DRI which would have required that appellants obtain approval under Chapter 380 before construction could begin. Hence, appellants did not prove the elements necessary for equitable estoppel. WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Our inquiry cannot stop here, however, because there is a large body of law, closely related to the doctrine of equitable estoppel, which deals with the question of' whether a municipality may delay the issuance of a permit for an allowable use when it is lawfully applied for in order to gain the time necessary to enact an amendment to its zoning ordinance which would frustrate the applicant's plans for developing his property. 5 While often acknowledging the fact that a city should have issued a building permit when requested to do so, many courts apply the zoning as it exists at the time of their decision in determining whether the city should then be required to do so. Annot., 50 A.L.R.3d 596, 605 (1973); 4 R. Anderson, American Law of Zoning 309 (2d ed. 1977); 8 E. McQuillin, Municipal Corporations 455-456 (3d ed. 1976). Thus, in discussing delay or the refusal to issue a permit, Anderson states The decisions relating to building permits and work commenced on the faith of' such permits support the conclusion that nothing short of actual use of land, or a substantial change of position pursuant to a permit, prior to the enactment or effective date of a iestiictive ordiiiance, will enlide a landowner to a nonconforming use. This premise has been challenged in cases involving administrative delay in the handling of permit applications. A typical dispute arises when a landowner *687 applies for a permit to erect a building or commence a use which is authorized at the proposed site, but which is not acceptable to adjacent owners, or is not consistent with some feature of the community plan for the development of the area. While there is some authority for the denial of a permit where a pending amendment would render issuance unlawful, most courts say that a municipality is without authority to deny a permit for a currently legal use. Municipal officials can, and sometimes do, delay issuance of a permit until the zoning ordinance is amended to prohibit the proposed use, or a court orders issuance of a permit. This administrative procrastination, calculated to deny a property owner the right to use his land in a currently lawful manner, is supportable neither by law nor by sound and ethical practice. But its use is common enough to have provided the materials for a number of judicial opinions. Diaz, Carlos 2/2/2017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 Where a municipal corporation unlawfully withholds a permit, the applicant can by mandamus force the appropriate official to issue it. But the zoning power of the municipality is not suspended during the pendency of the permit application, or an action for a writ ordering issuance of the permit. This power may be employed to amend the zoning ordinance to outlaw the use. If it is so used, a court will not order a municipal official to issue the permit unless the applicant has established a right to nonconforming use of the land. This situation squarely presents the question whether such a vested right can be perfected by a timely application for a permit to establish a lawful use, followed by unwarranted administrative delay which prevents any actual use of the land prior to the restrictive ordinance. The courts have usually not upheld the applicant's claim to a nonconforming use. 1 Anderson, supra, at 421-423 (footnotes omitted). On the other hand, although a general rule is hard to determine, Florida has in the past been more sympathetic to the properly owner in cases involving this issue. In two cases in which the facts only become apparent from reading the concurring and dissenting opinions, our supreme court ordered cities to issue building permits which were within existing zoning when the property owner applied for them but which failed to comply with a rezoning ordinance passed after the applicant had commenced legal proceedings. Broach v. Young, 100 So.2d 411 (Fla. 1958); Aiken v. Davis, 106 Fla. 675, 143 So. 658 (1932). Our own court appeared to adopt this approach in City of Hollywood v. Pettersen, 178 So.2d 919 (Fla.2d DCA 1965). In Sharrow v. City of Dania, 83 So.2d 374 (Fla.1955), and Miami Shores Village v. Post No. 124 of American Legion, 156 Fla. 673, 24 So.2d 33 (F1a.1945), the supreme court did hold that a city could revoke a building permit already issued because the use did not comply with a new ordinance which was enacted after its issuance, but the court seems to have decided these cases on the premise that when the property owners obtained the permit, they knew of the likelihood that the city was about to amend the zoning ordinances. Yet, in City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428 (F1a.1954), the supreme court upheld the city's right to prohibit the usage of property in violation of a zoning WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk change which it had not adopted until after it had issued a permit, and the court made no reference to forewarnings to the property owner. The court said: This Court has never gone so far as to hold that a City will be estopped to enforce an amendment to a zoning ordinance merely because a party detrimentally alters his position upon the chance and in the faith that no change in the zoning regulations will occur. It is our view that such a doctrine would be an unwise restraint upon the police power of the government. All that one who plans to use his property in accordance with existing zoning regulations is entitled to assume is that such regulations will not be altered to his detriment, unless the change bears a substantial relation to the health, morals, welfare or safety of the *688 public. See author's comments and cases cited in 138 A.L.R. 500 (IT). 77 So.2d at 430. City of Miami Beach v. Jonathon Corp., 238 So.2d 516 (Fla.3d DCA 1970), also suggests that the Florida courts are backing away from any absolute rule with respect to the status of the zoning which is existent at the time the property owner requests a permit. There, the city had refused the property owner a building permit which was within existing zoning. One day after the trial court had issued an alternative writ of mandamus, the city council passed a resolution authorizing eminent domain proceedings which were commenced nine days later. The court later entered a peremptory writ of mandamus upon summary judgment directing the city to issue the permit. While this case involved eminent domain, the appellate court applied the reasoning of those cases involving the retroactive effect of zoning changes upon prior applications for building permits. Based upon these authorities, the court concluded that there was a genuine issue of material fact as to whether the decision Diaz, Carlos 2/2/2017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 to institute eminent domain proceedings constituted either an arbitrary or a bad faith act of the city. There is an interplay between those situations in which the city is estopped because the properly owner has spent large sums in reliance on the city's original position and those in which the city refuses to issue a permit for a use which is permissible under existing zoning. If the city has refused to issue the permit, the property owner often cannot run the risk of spending the money which might create the estoppel, because he is then on notice of the possibility that the city may take an adverse position. Carried to its extreme, a city could arbitrarily continue to refuse a permit and permanently deprive a property owner of the right to use his property according to existing zoning. The opinion in Naumovich v. Howarth, 92I11.App.2d 134, 234 N.E.2d 185 (1968), illustrates this anomaly: Considerable difficulty is experienced in reconciling the rules announced in the authorities that, (a) rights are fixed at the time the application for a building permit is made; (b) no resolution suspending existing zoning ordinances is effective; (c) an applicant has no complaint icgaidiug ietivactive iouiug unless he experienced a substantial change of posilion relying nn existing zoning, and (d) where the City's wrongful act prevents one from acquiring a vested right, the City cannot take advantage of a situation which it caused. While the decided cases state that the rights of the parties are fixed at the time of the application for the building permit, that a municipality cannot suspend the operation of the existing law, and that the city may not take advantage of its own acts to prevent the acquisition of a vested right, so that no actual change of position is necessary to enforce the right to the building permit, nevertheless, the opposite conclusion is reached by logically applying the principles that no one has a vested right in the continuance of a law and that the ordinance applicable at the time of the decision governs. Phillips Petroleum Co. v. City of Park Ridge, 16 ill.App.2d 555 on 565, 149 N.E.2d 344. It, therefore, appears that the principles are made workable by inquiry into such factors as, (1) a substantial change of position before an orderly change in the law, (2) a notice of likelihood of change in the WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk law prior to change in position of the applicant, (3) the regularity of the proceeding of the municipality to make the change, and (4) the promptness with which the municipality takes action. 234 N.E.2d at 188, 161 171 After careful consideration, we believe that the beller rule and one which is consistent with most if not all Florida decisions can be stated as follows. Where a property owner meets the requirements specified in Town of Largo v. imperial Homes Corp., 309 Sold 571 (Fla.2d DCA 1975), the municipality will be estopped from denying him a building permit on the grounds that his project constitutes a non- *689 conforming use. However, even if he has not made the substantial expenditures in reliance upon the city's position necessary to create an estoppel, he is still entitled to obtain a building permit which is within the provisions of existing zoning so long as the rezoning ordinance which would preclude the intended use is not pending at the time when a proper application is made. For a zoning change to be pending within this rule, it does not have to be before the city council, provided the appropriate administrative department of the city is actively pursuing it. Of course, mere thoughts or comments by city employees concerning the desirability of a change are not enough. There must be active and documented efforts on the part of those authorized to do the work which, in the normal course of municipal action, culminate in the requisite zoning change. The city council or the applicable city planning board must at least be aware that these efforts are going forward. For a zoning change to be pending, however, it is not essential that the property owner be advised of these activities, except that to the extent that he is unaware of them, he might justifiably continue to expend funds upon his project which, if the matter does not in due time become public, may result in the application of equitable estoppel. See Annot., 50 A.L.R.3d 596, 620-632 (1973), for cases discussing when a proposed change is deemed pending. 6 This rule would prevent a city from retroactively applying a zoning amendment to deny a building permit unless the amendment was pending at the time of tine application for the permit. Thus, if a zoning change is deemed desirable, a city cannot wait to activate the machinery ultimately Diaz, Carlos 2/2/2017 For Educational Use Only Smith v. City of Clearwater, 383 So.2d 681 (1980) 19 A.L.R.4th 745 necessary to bring about the change until a property owner submits an application for a use which would only be precluded as a result of the change. This will encourage cities to keep their zoning current and at the same time provide property owners with a reasonable amount of stability upon which they can rely in making decisions concerning the use of their property. j81 Applying these principles to the case at hand, we think it is evident that the proposed changes in zoning were pending at the time the Division of State Planning notified appellants that their project was no longer considered a DRI. By that time the planning department Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk had recommended the zoning changes, and the city commission had directed the department to go forward with the drafting of appropriate ordinances. Hence, the new ordinances were applicable to appellants' property. AFFIRMED. SCHEB and CAMPBELL, JJ., concur. All Citations 383 So.2d 681, 19 A.L.R.4th 745 Footnotes A comprehensive plan prepared for the city in 1962 designated the property as low density residential, but the city never changed the official zoning classification to reflect this recommendation. 2 The year before, appellants had obtained the city's support for their plan to ask the state to purchase the land as an area of critical state concern. However, thoir efforts had been unavailing. 3 Appellants do not attack the CP rezoning in this appeal. 4 Appellants raise a fourth point concerning their claims against the Pinellas County Planning Council, but in view of our disposition of the case it is not necessary to discuss this point. 5 We shall assume for the purpose of our discussion that as of January 9, 1975, appellants' application for its initial permit was in full compliance with existing regulations. Actually, this was not quite so because a topographical survey was still required. However, the city did not deny the permit for lack of a survey, and, presumably, with the cooperation of the city, appellants could have furnished one within a short time. 6 To the extent that it conflicts with these statements, we hereby recede from our opinion in City of Hollywood v. Pettersen. enc of Document 20 i7 Then -,so, Beaters h1c claim is ordinal U S Govcrn;iierit VVor W ESTLAW Diaz, Carlos 2/8/2017 For Educational Use Only Dade County v. Jason, 278 So.2d 311 (1973) " KeyCite Yellow Flag - Ncgawe Treatment Distinguished by Coral Springs Street Systems, inc. v. City of Sunrise. 1 101 Cir.(Fla.). June 7, 2004 278 So.2d iii District Court of Appeal of Florida, Third District. DADE COUNTY, a political subdivision of the State of Florida, Appellant, Cross -Appellee, V. Doran A. JASON et al., Appellees, Cross -Appellants. No. 73-45• 1 June 5, 1973• Action to compel issuance of building permit. The Circuit Court, Dade County, Thomas A. Testa, J., entered judgment for plaintiffs and defendant appealed. The District Court of Appeal held that where plaintiffs were entitled to building permit under zoning and building regulations in effect at time of application, clerk was required to issue permit, and was not authorized to delay issuance or subsequently refuse to issue permit because of county manager's declaration of building moratorium. Affirmed. West Headnotes (1) Ill Zoning and Planning - Grounds for grant or denial in general 414 Zoning and Planning 414VII1 Permits, Certificates, and Approvals 414ViIi(A) in General 4140354 Grounds for grant or denial in general (Formerly 414078.1, 414378) Where plaintiffs were entitled to building permit under zoning and building regulations in effect at time of application, clerk was required to issue permit, and was not authorized to delay issuance or subsequently refuse to issue permit because WESJLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk of county manager's declaration of building moratorium. 7 Cases that cite this headnote Attorneys and Lair Firms *311 Stuart Simon, County Atty., and John G. Fletcher, Asst. County Atty., for appellant, cross -appellee. Shutts & Bowen, Miami, and Karl V. Hart, Coral Gables, for appellees, cross -appellants. Millican & Trawick, Sarasota, for South Florida Chapter of the Associated General Contractors of America, Engineering Contractors Association of South Florida, Inc., Miami Builders' Exchange and Gas institute of Greater Miami, amicus curiae. Samuel F. Schoninger, Miami, for Builders Association of South Florida, amicus curiae. Before BARKDULL, C.J., and PEARSON and HENDRY, 11. Opinion PER CURIAM. Early in 1972, the appellees commenced the proper proceedings to obtain a building permit for the erection of a multi -family building on Key Biscayne, in the unincorporated area of Dade County, Florida. They made formal application after preliminary discussions with Dade County authorities in early March, 1972, to secure a permit to permit such construction. Thereafter, on March 14, 1972, as a result of an initiative petition, the voters of Dade County approved a referendum authorizing the County Manager (in certain circumstances) to declare a building moratorium in the unincorporated areas of the County. During March the appellees were continually attempting to secure their permit and, on March 29, 1972, were finally notified that they were entitled to pick up their permit upon the deposit of the necessary fees. They immediately presented the necessary funds and the execution of the necessary docutuents in the Building Department of Metropolitan Dade County and it was Diaz, Carlos 2/8/2017 For Educational Use Only Dade County v. Jason, 278 So.2d 311 (1973) stipulated that, as of 11:30 A.M. that morning, their plans as submitted entitled them to a building permit under the then existing Metropolitan Zoning and Building Regulations which would have permitted a density of 85 units per acre. Notwithstanding the admitted compliance with all the requirements entitling them to the issuance of a permit, same was withheld by a clerk until subsequent to noon on March 29th, whereupon they were informed that no permit would be issued because the County Manager had declared a building moratorium in an area which encompassed the appellees' *312 property effective at 12:00 Noon that day. The appellees, as plaintiffs, instituted an action in the trial court, seeking to require the issuance of a permit. Following final hearing, the chancellor directed the issuance of a permit, permitting the construction of an improvement which met the Dade County code as it existed as of 11:30 A.M. on March 29, 1972, and rejected the appellees' argument that the moratorium ordinance was unconstitutional. The County instituted an appeal, contending that the chancellor erred in directing the issuance of a permit and further erred in not limiting the permit to a reduced density pursuant to the use classification in effect at the time of the entry of the final judgment (the zoning ordinance as to density, during the moratorium, having been amended), citing City of Boynton Beach v. Carroll, F1a.App.1973, 272 So.2d 171. The property owners filed a cross-appeal, alleging error in the trial court's failure to declare the moratorium ordinance unconstitutional. We affirm the action of the chancellor in directing the issuance of the permit. He found that the County had `delayed' the issuance of the permit in an obvious attempt to permit the County Manager to issue a moratorium. It is apparent that the landowners had completed all the necessary prerequisites entitling them to a permit as of 11:30 A.M. on the date in question, and the County should be estopped, under the circumstances, to deny the issuance of the permit. Aiken v. E. B. Davis, Inc., 106 Fla. 675, 143 So. 658; Harris v. State ex rel. Wester, 159 Fla. 195, 31 So.2d 264; Texas Co. v. Town of Miami Springs, Fla. 1950, 44 So.2d 808; Bregar v. Britton, Fla.] 954, 75 So.2d 753; Footnotes WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City of Hollywood v. Pettersen, Fla.App.1965, 178 So.2d 919; Hough v. Amato, F1a.App.1968, 212 So.2d 662; City of Miami Beach v. Jonathon Corporation, Fia.App.1970, 238 Sold 516; Munns v. Stenman, 152 Cal.App?d 543, 314 P.2d 67; Dubow v. Ross, 175 Misc. 219, 22 N.Y.S.2d 610; Harris v. Coffey, 14 Misc.2d 916, 179 N.Y.S.2d 8; Vine v. Zabriskie, 122 N.J.L. 4, 3 A.2d 886; Sgromolo v. City of Asbury Park, 134 N.J.L. 195, 46 A.2d 661; Gibson v. City of Oberlin, 171 Ohio St. 1, 167 N.E.2d 651; Planning Commission of City of Falls Church v. Berman, 211 Va. 774, 180 S.E.2d 670. We find the case of City of Boynton Beach v. Carroll, supra, not to be applicable in the instant case, because of the obvious conclusion by the chancellor that the County had acted in Bad faith in delaying the issuance of the permit and, therefore, the applicant should have been entitled to a permit authorizing the construction of the number of units that they would have been permitted to construct if the permit had been issued when they were entitled to it, to wit: 11:30 A.M., March 29, 1972. Therefore, we find the cited case not to be applicable and the chancellor to have been without error when he directed that the appellees should obtain a permit entitling them to build 85 units per acre. Sgromolo v. City of Asbury Park, supra; Gibson v. City ofOberlm, supra; Anno. 169 ALR 584. Compare Broach v. Young, Fla. 1958, 100 Sold 411.1 *313 Having determined that the chancellor should be affirmed on directing the issuance of the permit, there is no reason to reach the constitutional issue as raised on the cross-appeal. Both counsel, in open court, conceded that this issue would become moot if the court affirms the chancellor on the issuance of the permit. Therefore, for the reasons above stated, the final judgment here under review is hereby affirmed in that respect which directed the issuance of the permit. But, this opinion is not to be construed as any ruling on the constitutionality of the moratorium ordinance. Affirmed. All Citations 278 So.2d 311 Submitted into the public Record for item(s) Diaz, Carlos 2/8/2017 On 05-25-2017 For Educational Use Only Dade County v. Jason; 278 So.2d 311 (1973) PZ.15 City Clerk The principles of law applicable and the exception which we are here concerned with are found in the opinion of this court in Davidson v. City of Coral Gables, Fla.App.1960, 119 So.2d 704, at page 708: '* * * The applicable authorities show it to be the general rule that in a suit involving an application for issuance of a liquor license, the law as it stands at the time of the decree, rather than at the time of application or filing of the suit, controls the decision thereon. A statement of that rule should not omit reference to an established exception. The exception is that when the officials or governmental body to whom an application for a liquor license has been made, and against whom suit is filed to enforce its issuance, act arbitrarily to avoid their duty, such as by undue delay during which a further effective limitation is enacted, or by passing new limitations or regulations designed to avoid having to issue the license and to circumvent an impending court decision which would direct its issuance, the court may disregard the new restriction or regulation thus enacted by the officials or governmental agency which is involved in the suit, or which has been passed after their undue delay. See Aiken v. E. B. Davis, Inc., 106 Fla. 675, 143 So. 658; Harris v. State ex rel. Wester, 159 Fla. 195, 31 So.2d 264; Broach v. Young, Fla.1958, 100 So.2d 411. See also: 169 A.L.R. 584, which states: '* * * it is generally acknowledged that a change in the law pending an application for a permit or license is operative as to such application, and that the law as changed, rather than as it existed at the time the application was filed, determines whether the permit or license should be granted.' It is then observed by the annotator: 'If, however, action on the application is Unreasonably refused or Delayed until after the change has become effective, or The issuing officer arbitrarily fails to perform a ministerial duty to issue the license or permit promptly on an application which conforms to the law at the time of filing, the courts have held that the law at the time of filing of the application controls.' (emphasis supplied and added) End of Document c<! 2017 Thomson Reulers No claim to orioinal U S Government Works WESTLAW Diaz, Carlos 2/8/2017 For Educational Use Only Monroe County v. Ambrose, 866 So.2d 707 (2003) 28 Fla. L. Weekly D2836 866 So.2d 707 District Court of Appeal of Florida, Third District. MONROE COUNTY, a Political Subdivision of the State of Florida, and the Department of Communitv Affairs and Islamorada, Village of Islands, a municipal corporation, Appellants, V. Thora AMBROSE, et al., Appellees. Nos. 3Do2-1716, 3Do2-1754, 3Do2-1800, 3Do2-2o68. Dec. 10, 2003. Rehearing and Rehearing En Banc Denied Feb. 18, 2004. Synopsis Background: Landowners brought action for declaratory relief to determine rights to complete development of homes after land was designated as part of area of critical stale concern and local government approved new land use regulations. The Circuit Court, Monroe County, Richard Payne, J., granted summary judgment in favor of landowners. County and village appealed, and landowners cross -appealed. Holdings: The District Court of Appeal held that: [1 ] genuine issue of material fact as to whether landowners had vested development rights precluded summary judgment, and [2] appropriate cul -off date for determining alleged vested rights was on date county first enacted land development regulations. Reversed and remanded with instructions. W ESTLAW West Headnotes (8) Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk [II Judgment Particular Cases 228 Judgment 228V On Motion or Summary Proceeding 2281<181 Grounds for Summary Judgment 228k]81(15) Particular Cases 228k181(15.1) In general Genuine issue of material fact as to whether landowners, who purchased land before county enacted development regulations pursuant to state designation as area of critical stale concern, had vested right to develop land due to any reliance on state statute allowing for designation as area of critical state concern and any change of position in furtherance of developing land, precluded summary judgment for landowners in action for declaratory relief to determine development rights under statute. West's F.S.A. § 380.05(18). 2 Cases that cite this headnote 121 Zoning and Planning r Change of regulations as affecting right 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VII1(A) In General 414k1350 Right to Permission. and Discretion 414-1352 Change of regulations as affecting right (Formerly 414376) If a landowner recorded his property pursuant to local subdivision plat law, his rights to complete any development cannot be limited or modified by the designation of the land as an area of critical state concern nor by the adoption of subsequent land regulations. West's F.S.A. § 380.05(18). 1 Cases that cite this headnote [3[ Zoning and Planning Submitted into the public Diaz, Carlos 2/8/2017 Record for item(s) PZ.15 For Educational Use Only On 05-25-2017. City Clerk Monroe County v. Ambrose, 866 5o.2d 707 (2003) 28 Fla. L. Weekly D2836 Vested or property rights 4p- Rights of objecting owners;contmurty of 414 Zoning and Planning regulation 414Viii Permits, Certificates. and Approvals 414 Zoning and Planning 414VI11(C) Effect of Determination of Permits, 4141i1 Modification or Amendment;Rezoning Certificatcs, or Approvals;Revocation 4141I1(A) In General 4140451 Vcstcd or property rights 414k] 154 Rights of objecting owners; (Formerly 414k465) continuity of regulation Recordation alone is not sufficient to establish (Formerly 414k] 61) vested rights to develop land. West's F.S.A. § The mere purchase of land without more does 380.05(18). not create a right to rely on existing zoning. 1 Cases that cite this headnote Cases that cite this headnote 141 Zoning and Planning 171 Zoning and Planning Vested or property rights - Vested or property rights 414 Zoning and Planning 414 Zoning and Planning 414VTTi Permits, Certificates, and Approvals 414VTTT Permits, Certificates, and Approvals 414ViT1(C) Effect of Determination of Permits, 414V1i1(C) Effect of Determination of Permits, Certificates, or Approvals;Revocation Certificatcs, or Approvals; Revocation 414k 1451 Vested or property rights 4141451 Vested or property rights (Formerly 414465) (Formerly 414465) Vested rights to develop may be established A subjective expectation that land can be if a property owner or developer has: (1) in developed is no more than an expectancy good faith reliance, (2) upon some act or and does not translate into a vested right to omission of government, (3) made such a develop the property. substantial change in position or has incurred such extensive obligations and expenses (4) 2 Cases that cite this headnote that it would make it highly inequitable to interfere with the acquired right. 181 Zoning and Planning s Change of regulations as affecting right Cases that cite this headnote Zoning and Planning Vested or property rights 151 Zoning and Planning 414 Zoning and Planning *-- Estoppel or inducement 414VTTT Permits, Certificates, and Approvals 414 Zoning and Planning 414Viii(A) Tn General 414X1 Enforcement of Regulations 414k] 350 Right to Permission, and Discretion 414k1767 Defenses to Enforcement 414k1352 Change of regulations as affecting 414k1770 Estoppel or inducement right (Formerly 414762) (Formerly 414376) A citizen is entitled to rely on the assurances 414 Zoning and Planning and commitments of a zoning authority and if 414VIiI Permits, Certificates, and Approvals he does, the zoning authority is bound by its 414VTiT(C) Effect of Determination of Permits, representations. Certificates, or Approvals;Revocation 4141<1451 Vested or property rights Cases that cite this headnote (Formerly 414465) Appropriate cut-off date for determining landowners' alleged vested rights to develop (6) Zoning and Planning W ESTLAW Diaz, Carlos 2/8/2017 For Educational Use Only Monroe County v. Ambrose, 866 So.2d 707 (2003) 28 Fla. L. Weekly D2836 land was on date county first enacted land development regulations after county was designated area of critical state concern rather than on date statute allowing for designation was enacted. West's F.S.A. § 380.05(18). 1 Cases that cite this headnote Attorneys and Law Firms *708 Morgan and Hendrick, P.A., and Karen K. Cabanas (Key West), for appellant, Monroe County. David L. Jordan, Deputy General Counsel (Tallahassee), for appellant, Department of Community Affairs. Weiss Scrota Helfman Pastoriza & Guedes, P.A., Edward G. Gucdes, and Nina L. Boniske, for appellants, Tslamorada, Village of Islands. Brion Blackwelder, Richard Grosso, and David Cozad (Fort Lauderdale), for appellants/intervenors, Protect Key West, d/b/a" Last Stand", & al. Janet E. Bowman (Tallahassee), for 1000 Friends of Florida, Inc., as Amicus Curiae, for appellants. *709 James S. Mattson (Key Largo); Andrew M. Tobin (Tavernier); for appellees. Frank A. Shepherd, for Pacific Legal Foundation, as Amicus Curiae for appellees. Before LEVY , GERSTEN, and GODERICH, JJ. Opinion PER CURIAM. In the proceedings below, the trial court granted summary judgment in favor of Thora Ambrose, et. al. ("Landowners"), finding that Section 380.05(18), Florida Statutes (1997), 1 created a vested right for the Landowners to complete development of single-family homes on their land. Monroe County, the Department of Community Affairs, and the Village of Tslamorada (hereinafter collectively referred to as "Monroe County") WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk appeal the trial court's order granting summary judgment. The Landowners cross-appeal the same order. We reverse and remand with instructions. The Landowners own parcels of undeveloped land that were platted and recorded in Monroe County between April 24, 1924 and June 27, 1971. During this time, local subdivision plat law governed the development of land. In 1979, the Florida Legislature enacted Section 380.0552 and designated Monroe County as an area of critical state concern. 2 Since then, the local government has approved new land development regulations for these areas. 3 The Landowners assert that these subsequent land regulations have limited or modified their rights to develop their parcels of land. In 1997, the Landowners filed a complaint seeking declaratory relief to determine their rights pursuant to Chapter 380, Florida Statutes, and to determine the effect, if any, of the 1986 Land Development Regulations, the Rate of Growth Ordinance ("ROGO") and the 2010 Comprehensive Plan. Monroe County and the Landowners filed cross motions for summary judgment. The trial court granted summary judgment in favor of the Landowners. The trial court found that pursuant to Section 380.05(18), Florida Statutes (1997), the Landowners have vested rights to build single family homes, by virtue of recording their parcels of land. The trial court also determined that the Landowners did not have to show a reliance or change of position and that their rights were vested solely on the recordation of their land. The trial court held that these vested rights are superior to and preempt any of the State of Florida and local governments' *710 comprehensive plans and land use regulations. Finally, the trial court determined that the Landowners' rights to develop their land became vested on July 1, 1972, the enactment date of Section 380.05(18). For the following reasons, we reverse the order granting summary judgment and remand for further proceedings. [11 The trial court interpreted Section 380.05(18) to find that the Landowners have vested rights to develop their property pursuant to the recordation of their parcels of land. Section 380.05(18) provides that: Diaz, Carlos 2/8/2017 For Educational Use Only Monroe County v. Ambrose, 866 So.2d 707 (2003) 28 Fla. L. Weekly D2836 Neither the designation of an area of critical state concern nor the adoption of any regulations for such an area shall in any way limit or modify the rights of any person to complete any development that has been authorized by registration of a subdivision pursuant to chapter 498 or former chapter 478, by recordation pursuant to local subdivision plat law, or by a building permit or other authorization to commence development on which there has been a reliance and a change of position, and which registration or recordation was accomplished, or which permit or authorization was issued, prior to approval under subsection (6), or the adoption under subsection (8), of land development regulations for the area of critical state concern. II' a developer has by his or her actions in reliance on prior regulations obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to the developer's interests, nothing in this chapter authorizes any governmental agency to abridge those rights. 121 131 The plain language of the statute clearly illustrates that if a landowner recorded his property pursuant to local subdivision plat law, his rights to complete any development cannot be limited or modified by the designation of the land as an area of critical slate concern nor by the adoption of subsequent land regulations. Although, the trial court's order is clearly in accord with this provision in the statute, the court determined that the Landowners did not have to show a reliance or change of position and that their rights were vested solely on the recordation of their land. We disagree. Recordation alone is not sufficient to establish vested righ Ls. WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 141 Florida common law provides that vested rights may be established if a property owner or developer has (1) in good faith reliance, (2) upon some act or omission of government, (3) made such a substantial change in position or has incurred such extensive obligations and expenses (4) that, it would make it highly inequitable to interfere with the acquired right. Sec Holl-virood Beach Holcl Co. r. Cite of Holl.rwood, 329 So.2d 10 (F1a.1976); SakolslcY n. Cite of Coral Gables, 151 So.2d 433 (F1a.1963); Equily Rev., Inc. r. County of Lean, 643 So.2d 1112 (Fla. 1st DCA 1994); Harbor Course Club, inc., n. Dep'l of Cnly. Af/airs, 510 So.2d 915 (Fla. 3d DCA 1987); Dade Coulllt, r. Uniled Res., Loc., 374 So.2d 1046 (Fla. 3d DCA 1979). The only exception to this common law rule under Chapter 380 is specifically provided for in the statute. See S 380.06(20), Fla. Stat. (1997).4 The Landowners do not fall under this exception. *711 151 161 The theory behind vested rights is that "a citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authori(y is bnnnd by its representations." Team of La�,o n. Imperial Homes Corp„ 309 So.2d 571, 573 (Fla. 2d DCA 1975). However, the mere purchase of land without more does not create a right to rely on existing zoning. See Cilyo/'Hituld Beach v. 8707 Collins Aw., Inc., 77 So.2d 428 (Fla.] 954). it would be unconscionable to allow the Landowners to ignore evolving and existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land. 171 Pursuant to Section 380.05(18), the Landowners rights to develop their land are not limited or modified by the designation of an area of critical state concern nor the adoption of regulations if they recorded their property prior to the approval of land development regulations for the area. Monroe Country was designated an area of critical state concern in 1979, but the first land use regulations were not enacted until 1986. If the Landowners did not start development prior to the enactment of these land regulations, they acted at their own peril in relying on the absence of zoning ordinances. See Pasco Counh, r. Tampa Den. Corp., 364 So.2d 850 (Fla. 2d DCA 1978) (existence of present right to use a particular use of land derived from less restrictive zoning Diaz, Carlos 2/8/2017 For Educational Use Only Monroe County v. Ambrose, 866 So.2d 707 (2003) 28 Fla. L. Weekly D2836 or no zoning ordinance at all is not a sufficient act of government upon which to base equitable estoppel to preclude enforcement of subsequently adopted zoning restrictions); see also § 380.05(16), Fla. Stat. (1997). A subjective expectation that land can be developed is no more than an expectancy and does not translate into a vested right to develop the property. See Namon n Dep'l of Eni,ll. Regulation, 558 So.2d 504 (Fla. 3d DCA 1990). Furthermore, the purpose of Chapter 380 is to protect the natural resources and environment of the state, preserve water resources, and facilitate orderly and well planned development. See Compass Lance Hills Dei,. Corp. v. Dept of'Cm1v. Affairs, 379 So.2d 376 (Fla. 1s( DCA 1980); § 380.0552, Fla. Stat. (1997). The reason Monroe County was designated an area of critical state concern was to provide for an increased state role in decisions which have a statewide impact. See § 380.021, Fla. Stat. (1997). Allowing Landowners who have not taken any steps to develop their property to obtain vested rights would be contrary to legislative intent. The result would clearly subvert significant legislation and regulations designed and enacted for the purpose of preserving our most precious lands. Therefore, we conclude that the Landowners must show they relied on Section 380.05(18), and changed their position in furtherance of developing their land, in *712 order to have vested rights to develop their property. See Equily Res. Inc. r. Count, of Leon, 643 So.2d 1112 (Fla. 1 st DCA 1994) (vested rights were established based on acts of reliance where property was purchased under contract contingent on rezoning). We are unable to determine if the Landowners' rights are vested because the trial court's determination rested solely on the Landowner's recordation of property and did not address the reliance issue. Therefore, we remand this matter back to the trial court to determine, based on the foregoing analysis, whether these Landowners have vested rights. We also conclude that the subsequently enacted land regulations do not apply to the Landowners who are determined to have vested rights. See Toii�n of Largo i,. Imperial Homes Cop., 309 So.2d at 573 (town enjoined from enforcing new zoning requirements where it was determined that developer had vested rights). Those Landowners who do not have vested rights, however, will WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk be subject to the subsequently enacted land regulations. See Harbor Course Club, 510 So.2d at 918 (development of property as a golf driving range violated Section 380.05 as property owners' rights had not vested prior to designation of the land as an area of critical state concern). To the extent that these regulations render any of the Landowners' property practically useless, the Landowners are entitled to compensation. Section 380.08, Florida Statutes (1997), provides that the government cannot adopt a rule or regulation that constitutes a taking without providing full compensation. 5 See .Ioint Ventures r. Dep't of Transp., 563 So.2d 622 (Fla.I 990)(state must pay when it regulates private property in such a manner that the regulation deprives the owner of the economically viable use of that property). 181 Based on the foregoing analysis, it is unnecessary to address the other points raised on appeal. With regard to the cross-appeal, the Landowners argue that the trial court incorrectly calculated the cut-off date for determining their vested rights under Section 380.05(18). The trial court concluded that July 1, 1972 was the date that the parcels of land became vested because on that date Section 380.05(18) was enacted. The Landowners allege that September 15, 1986 is the correct cut-off date for determining their vested rights, and Monroe County concedes that the Landowners are correct on this point. We agree. Section 380.05(18) provides vested rights for Landowners who recorded their property prior to the approval of land development regulations for the area of critical state concern. The first land development regulations for Monroe County were enacted on September 15, 1986. Therefore, we reverse with instructions for the trial court to enter September 15, 1986, as the appropriate date for obtaining vested rights. In conclusion, we reverse the summary judgment finding that a plain reading of Section 380.05(18) gives the Landowners a vested right to develop their property if the Landowners have demonstrated a good faith reliance and change of position. We also reverse on the cross-appeal with instructions for the trial court to enter September 15, 1986, as the appropriate date that the Landowners' rights Submitted into the public Diaz, Carlos 2/8/2017 Record for item(s) PZ.15 For Educational Use Only 0n 05-25-2017. City Clerk Monroe County v. Ambrose, 866 So.2d 707 (2003) 28 Fla. L. Weekly D2836 vested. We remand for further proceedings consistent with the above analysis. All Citations *713 Reversed and remanded with instructions. 866 So.2d 707, 28 Fla. L. Weekly D2836 Footnotes * Judge Levy did not participate in oral argument. Chapter 380 also known as "The Florida Environmental Land and Water Management Act of 1972" governs natural resources, conservation, reclamation and use of land and water. 2 The legislative intent behind designating the Florida Keys an area of critical state concern is to establish a land use management system that protects the natural environment; conserves and promotes the community character; promotes orderly and balanced growth in accordance with the capacity of available and planned facilities and services; provides affordable housing in close proximity to places of employment; promotes and supports a diverse and sound economic base; protects the constitutional rights of property owners to own, use and dispose of their real property and; promotes coordination and efficiency among governmental agencies in the Florida Keys. See § 380.0552, Fla. Stat. (1997). 3 The first land development regulations were adopted in 1986 pursuant to Sections 380.05(6) and (8), Florida Statutes (1985). In 1992, the Rate of Growth Ordinance ("ROGO") was adopted as part of a state emergency rule. Finally, in January of 1996, Monroe County adopted its 2010 comprehensive plan. 4 Section 380.06(20)(a), Florida Statutes (1997), provides that: For the purposes of determining the vesting of rights under this subsection, approval pursuant to local subdivision plat law, ordinances, or regulations of a subdivision plat by formal vote of a county or municipal governmental body having jurisdiction after August 1, 1967, and prior to July 1, 1973, is sufficient to vest all property rights for the purposes of this subsection; and no action in reliance on, or change of position concerning, such local governmental approval is required for this vesting to take place. Anyone claiming vested rights under this paragraph must so notify the department in writing by January 1, 1086. Such notification shall include information adequate to document the rights established by this subsection. When such notification requirements are met, in order for the vested rights authorized pursuant to this paragraph to remain valid after June 30, 1990, development of the vested plan must be commenced prior to that date upon the property that the state land planning agency has determined to have acquired vested rights following the notification or in a binding letter of interpretation. When the notification requirements have not been met, the vested rights authorized by this paragraph shall expire June 30, 1986, unless development commenced prior to that date. 5 Section 380.085, Florida Statutes (1997), enables a person substantially affected by the denial of a permit to build, to initiate an action in circuit court on the grounds that an area of critical state concern development order effects a taking without compensation. W ESTLAW Submitted into the public Record for item(s) PZ.15 For Educationall Use Diaz, Carlos On 05-25-2017 . City Clerk se Only O Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) England, J., dissented and filed opinion, in which Overton and Sundberg, JJ., concurred. KcvCite Ycllow Flat - Necative Treatment Declined to Extend by Duncdin Development, Co., LLC v City of Dunedin, Fla., M.D.Fla., November 10, 3009 329 S0.2d 10 West Headnotcs (7) Supreme Court of Florida. The HOLLYWOOD BEACH HOTEL COMPANY, III Appeal and Error an Ohio Corporation, et al., Petitioners, �— Extent of Review 30 Appeal and Error The CITY OF HOLLYWOOD, a Municipal 30XV1 Review Corporation, organized and existing under 3 0XVT(T) Questions of Fact, Verdicts, and Findings Findings the laws of the State of Florida, Respondent. I)1 In General 30k988 Extent of Review No. 44642. 30k989 in general I An appellate court cannot reevaluate the Jan. 21, 1976. evidence and substitute its judgment for that of the trial court. Rehearing Denied April. 13, 1976. Cases that cite this hcadnote Landowners brought action to enjoin city from rezoning property and from applying proposed density ordinance to it and to compel return of building permit fee. The 121 Zoning and Planning Circuit Court for Broward County, Lamar Warren, J., a: Questions of fact;findings rendered judgment in favor of landowners, and city 414 Zoning and Planning appealed. The District Court of Appeal, 283 So.2d 414X Judicial Review or Relief 867, reversed and remanded, and petition for writ of 414X(E) Further Review certiorari was granted. The Supreme Court held that in 414k1744 Scope and Extent of Review view of plaintiffs' good faith reliance on rezoning for 4]4kl754 Questions offact;findings multiple family use and their expenditure of considerable (Formerly 414747) funds on preliminary planning plaintiffs had acquired a District Court of Appeal violated rule that an vested right in continuation of the multiple use zoning appellate court cannot reevaluate the evidence and continuance of building permit, that plaintiffs did and substitute its judgment for that of the trial not forfeit such rights either by failure to build or court where chancellor found that because their request for return of permit fee until economic of delays caused by city in connection with conditions improved where city's actions in delaying rezoning the developer was unable to build for approximately one year question of lower density within required 90 days due to economic zoning and repeal of motion which had extended life of conditions which precluded same whereas building permit until completion of litigation and, instead, district court, in its reevaluation, stated that mandating that construction proceed within 90 days were the developer "elected not" to proceed and arbitrarily taken and plaintiffs actively proceeded with "surrendered" his building permit. litigation. 1 Cases that cite this hcadnote Affirmed in part and reversed in part. I3i Estoppel Municipal corporations in general WESTLAW Diaz, Carlos 2/8/2017 For Educational Use Only Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) 156 Estoppel 156111 Equitable Estoppel 1561I](A) Nature and Essentials in General 156k62 Estoppel Against Public, Government, or Public Officers 156k62.4 Municipal corporations in general Doctrine of equitable estoppel may be invoked against a municipality as if it were an individual. 18 Cases that cite this headnote 141 Zoning and Planning Waiver or estoppel 414 Zoning and Planning 414X Judicial Review or Relief d 1,1X(A) in General 4141584 Right of Review: Standing 414k 1590 Waiver or estoppel (Formerly 414k24) Mere fact that actual physical construction has not yet begun does not bar application of doctrine of equitable estoppel so as to preclude a municipality from exercising its znning pmaler. 18 Cases that cite this headnote 151 Zoning and Planning Rights of objecting owners;continuity of regulation Zoning and Planning Vested or property rights 414 Zoning and Planning 414111 Modification or Amendment:Rezoning 414III(A) in General 414k 1 154 Rights of objecting owners: continuity of regulation (Formerly 414kl51) 414 Zoning and Planning 414VTTi Permits, Certificates, and Approvals 414Vi11(C) Effect of Determination of Permits, Certificates, or Approvals;Revocation 414k1451 Vested or property rights (Formerly 414k465) Where property developer obtained building permit from city and without actual or WESTLAW 161 171 Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk constructive knowledge of any impending zoning change spent almost $200,000 on a site plan, models, architect's plans and specifications and building permits and such money was spent in good faith reliance on city's rezoning of the land for multiple - family use, city was equitably estopped from changing the zoning from multiple family; developer had a vested property right in continuation Ofmultiple-family Toning, 13 Cases that cite this headnote Zoning and Planning Change ol' regulations as affecting right 414 Zoning and Planning 414VIIi Permits, Certificates, and Approvals 414ViII(A) Til General 414k1350 Right to Permission, and Discretion 4141352 Change of regulations as affecting right (Formerly 414376) Developers did not forfeit vested rights which they had acquired under building permit and multiple-lamily zoning when they did not proceed with construction or when they requested return of permit fee until economic conditions improved where developers were kept in limbo for almost a year while city considered action on petition to rezone to lower density use, the city, without notice, repealed motion which had extended life of permit to completion of litigation and mandated that construction was to proceed within 90 days and it could reasonably be inferred that city knew that owners could not proceed until matter of rezoning was definitely decided and developers did not delay in pressing their rights through litigation. 7 Cases that cite this headnote Zoning and Planning *— Power to modify or amend in general 414 Zoning and Planning 41411I Modification or Amendment; Rezoning 414111(A) in General Diaz, Carlos 2/8/2017 For Educational Use Only Hollywood Beach Hotel Co, v. City of Hollywood, 329 So.2d 10 (1976) 4141140 Power to modify or amend in general (Formerly 414k 15 1) While a city commission possesses prerogative of deciding to defer action on a rezoning proposal over a long period of time, it must assume the attendant responsibility for the adverse effects it knows or should know its deliberate inaction will have on the parties with whom it is dealing. 2 Cases that cite this headnote Attorneys and Law Firms *11 Judson A. Samuels and Hugh S. Glickstein of the Law Offices of Judson A. Samuels and Hugh S. Glickstein, Holly wood, and Howard M. Neu, North Miami, for petitioners. J. Bart Budetti, City Atty., and Myron H. Burnstein, Special Asst. City Atty., for respondent. Opinion PER CURIAM. This cause is before us on a petition for writ of certiorari to review the decision of the Fourth District Court of Appeal. 1 We have jurisdiction pursuant to Article V, s 3(b)(3), Fla.Const. As a general rule, an outline of the sequence of events in chronological order is not of vital importance. However, the instant case represents a significant exception to this rule. *12 Petitioners -plaintiffs owned a 105 acre plot of real property in the City of Hollywood which was zoned RA -5 (golf course use) except for a 40 400 -foot portion in the southwestern corner of same which was zoned RC -12 (multiple family). In late 1968, the petitioners decided to develop the property into a 6,000 unit complete community and petitioned the Hollywood Planning and Zoning Board to zone the entire plot as RC -12 (multiple family). This change was recommended to the Hollywood City Commission by the Planning and Zoning Board, whereupon the City Commission adopted Ordinance WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 0-69-46, hereinafter referred to, with the preamble reading in part, as follows: WHEREAS, the City Commission, after several public hearings and only after an independent investigation and study, recognizes that The character of the neighborhood has gone through a series of changes so as to require the granting of the change of zone as hereinafter provided in order to properly preserve and protect the public interest, and WHEREAS, The City Commission, after careful study of all aspects of the petitioner's application, including traffic patterns, population density, aesthetic considerations, effect upon single family residences in the area, as well as the effect upon the business establishments in the downtown area, Considers that the public interest not only justifies but requires that the change of zone be granted so as to permit construction of the complex in accordance with the circumstances recited herein and as the same appears on the site development plan, attached hereto and made a part hereof as though fully recited herein.' (Emphasis supplied.) On April 2, 1969, after numerous public hearings and conferences between the City and the petitioners, a comprehensive site plan was approved and the City Commission by a 4 to 1 vote adopted Ordinance 0-69-46 which rezoned said property to RC -12 uses. in early December of 1969 in a City election, two commissioners who voted for the ordinance were defeated by candidates publicly opposed to same. On December 17, 1969, at the second meeting following their election, the two newly elected commissioners joined with the commissioner who had originally voted against the ordinance and passed a motion to petition the Zoning Board to reevaluate the rezoning affected by the foregoing ordinance. This petition did not contain and was not grounded upon Any allegations necessitating rezoning. On December 30, 1969, petitioners obtained a building permit from the State for the construction of the first five million dollar building. The Zoning Board met on January 12, 1970, and considered the Commission's petition to reevaluate the zoning affected by the above ordinance. At this meeting, the Board stressed the need for zoning stability and stated that the Commission had never `come Diaz, Carlos 2/8/2017 For Educational Use Only Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) back' with a request for a change in a duly enacted zoning ordinance. The motion was tabled and the Board at its February 9th meeting requested clarification from the Commission. In the meantime, on January 23, 1970, the City issued a building permit for same. At this point, it must be noted the uncontroverted testimony established that it had taken some nine or ten months (April 1969 -Jan. 1970) for the petitioners to complete the necessary preparations to begin construction. During this period and subsequently, petitioners expended some $191,269.66. On February 18, 1970, the Commission in response to the request for clarification by the Zoning Board passed a motion to petition the Zoning Board to rezone the western one-third of the tract to multiple family and the eastern two-thirds to single family golf course use. On February 19 the City filed this petition with the Zoning Board. *13 On February 21, the petitioners brought an action for a permanent injunction with an accompanying request for a temporary injunction against the City. At the hearing on the temporary injunction and the City's mntion to dismiss on March 4, the following pertinent testimony was given: The architect for the project testified that the entire site plan would be destroyed by rezoning part of the property; a member of the Zoning Board testified that the City's petition for rezoning did not contain any allegations that a change in the area where the property was situate necessitated rezoning; and the petitioner, Ben Tobin, testified as to the amount of money expended and that all activities had been brought to a halt because of the City's petition to rezone. The trial court denied the temporary injunction on the grounds that the application was premature on March 5th. On March 13th, the City's Motion to Dismiss was denied. The City then voted to file an interlocutory appeal on March 16th and such appeal was filed on March 19th. On March 23rd, the Zoning Board denied the petition to rezone. The Commission next voted on March 25, 1970, to appeal this denial to the Zoning Board of Appeals, the members of which were comprised solely of the City Commissioners. Such appeal was filed but no definitive WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk action was taken by the Board of Appeals until Feb. 17, 1971. However, at its April 5, 1970, meeting, the Board of Appeals voted to table the appeal for thirty to sixty days. On June 17th, the Board of Appeals discussed the tabled appeal and voted that it be tabled no longer than the first meeting in August. On July 15th, the City Commission, in response to a request for an extension of the building permit, Voted to extend the building permit indefinitely until the litigation was completed. At the August 8th meeting of the Board of Appeals, the appeal was left tabled due to the possibility that the City might purchase the property in dispute. Then, on August 21st, the District Court affirmed the trial court's denial of the City's motion to dismiss. At its September 2nd meeting, the City Commission voted to petition the District Court for rehearing and if unsuccessful, to petition the Supreme Court for certiorari. Prior to the taking of this vote, one of the Commissioners who voted in the majority, stated that these actions should be taken since `the City could operate with more leverage as to the purchase of the property if the case remains in Court.' The District CUUrt denied rehearing on September 29, 1970; this Court denied certiorari on January 7, 1971; and the City filed its answer to petitioner's complaint on February 17, 1971. On the same day the Board of Appeals (City Commissioners) Without prior notice to the petitioners, affirmed the Zoning Board's denial of petition to rezone; and then the (same people sitting as) City Commissioners rescinded its motion of July 15, 1970 which had extended the permit until the end of the litigation between the parties and mandated that the petitioners exercise their rights under the building permit within ninety days. Prior to the vote on the petition for rezoning and the ninety -day motion, one of the Commissioners who voted for the petition by the City to rezone, stated that he would `now vote' to affirm the Zoning Board's denial since he did not think the project would ever be built without deviations which would have to come before the Commission for approval. On March 17th, the petitioners Diaz, Carlos 2/8/2017 For Educational Use Only Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) requested the return of the permit fee until building conditions improved. This was denied. In regard to the City's repeal of the building permit allowing an extension to the end of the litigation, it is important to note that during the ninety -day period referred to above, the injunction suit was *14 actively prosecuted by both parties, to -wit: on March 12, 1971, petitioners moved to strike parts of City's Answer; on March 29, 1971, the petitioners moved to amend Complaint; on April 12, City moved for judgment on the pleadings; and on April 20, City's motion for judgment on pleadings was denied and the petitioners' motion for leave to amend was granted. From June 23, 1971 to January 5, 1972, the City negotiated with the petitioner for the purchase of the property. In the December 1971 City elections, the remaining two Commissioners who had voted for Ord. 0-69-46 were defeated by candidates publicly opposed to it. At its January 5, 1972 meeting, the Commission voted not to buy the property even though a verbal understanding had been reached as to both price and method of financing. The Commission again then passed unanimously a motion requesting the Zoning Board to reconsider the zoning implemented by Ord. 0-69-46, and, in addition thereto, to recommend suitable rezoning (a matter which was not raised in its first request for re- evaluation). The Commission also then took the first vote on a new density ordinance which would have the effect of rendering the petitioners' site plan useless. Petitioners sought a `temporary injunction' (incorporating all prior pleadings before the court) on February 12. On February 14, the Zoning Board approved a rezoning plan and recommended same to the City Commission. It is significant to note that at the Zoning Board meeting there was no allegation of a change in the neighborhood as basis for the rezoning. At the hearing on the temporary injunction, the petitioners submitted testimony: that during the almost one year that the Commission had considered action on the petition to rezone, this delay coupled with newspaper coverage of same made it impossible to obtain financing and discouraged investors; that no prior notice had been given of the City's decision on January 5, 1972, not to purchase the property; and that due to these prolonged WESTIAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk negotiations, the development had been kept in limbo; that the proposed new density ordinance destroyed the site plan and rendered the building permit useless. The temporary injunction filed on February 12, 1972, was denied on February 18, 1972. The density ordinance received final passage on March 1, 1972, and on March 15, the Commission voted unanimously to petition the Zoning Board to rezone the property in question. The Zoning Board approved same on April 17 and on June 28, the Commission enacted the rezoning ordinance. On April 27, the trial court held a hearing at which the petitioners submitted the following testimony: $191,269.66 had been expended in reliance on the rezoning and the permit; that the density ordinance and proposed rezoning completely destroy the site plan; and that if the injunction was granted, the petitioners intended to build if financing and the market were suitable. The City Planner testified that the disputed ordinances did not destroy the site plan; however, at the continuation of the hearing on May 11, the City Planner then admitted that said ordinances did destroy the petitioners' site plan. On July 19, the trial court issued a permanent injunction enjoining the City from enforcing both the density and subsequent rezoning ordinances against the petitioners and ordered that the City return the building permit fee. The District Court of Appeal, Fourth District, reversed and remanded with instructions and this Court granted certiorari. Three issues require our attention: First, whether the Fourth District Court of Appeal reevaluated the evidence and substituted its judgment for that of the chancellor; Second, whether the principle of equitable estoppel precluded the City of Hollywood from enacting the disputed ordinances; and Third, whether the chancellor *15 erred in finding as a matter of law that the City's retention of the petitioners' permit fee constituted a forfeiture? All three queries must be answered in the affirmative. Accordingly, the decision of the Fourth District Court of Appeal is quashed as to the first and second issues and affirmed as to the third. Ill I21 It is the prevailing rule in this jurisdiction that an appellate court cannot reevaluate the evidence and substitute its judgment for that of the trial court. Diaz, Carlos 2/8/2017 For Educational Use Only Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) Westerman V. Shell's City, Inc.; 2 Greenwood v. Oates. 3 After comparing the chancellor's findings with the recital of facts by the Fourth District, it is only too clear that the District Court violated this rule. The chancellor found that because of the delays caused by the City the developer was unable to build within the required ninety days due to [lie economic conditions which precluded same. Whereas, the District Court in its reevaluation stated that the developer 'elected not' to proceed and 'surrendered' his building permit.4 'To elect' is defined as to choose by preference a course of action. 5 In turn, 'choice' is defined as the 'voluntary and purposive or deliberate action of picking, singling out, or selecting from two or more that which is favored or superior.' 6 Petitioners 'chose' not to build within the ninety -day period; correspondingly, it is undisputable that the trial court found this 'choice' to be due to the unstable economic and financial conditions which faced the petitioners because of' the delays caused by the City, and not because of a 'voluntary choice' by the petitioners. The petitioners' situation is best described in the proverbial terms of being put Letweeu a 'r ock and a hard spot' by the City. The trial court also found that the petitioners had not surrendered the permit, whereas the District Court in effect found that such a surrender had been made on the basis of its reevaluation. Thus, the principles enunciated by this Court in Westerman, supra, and Greenwood, supra, require reversal on this point alone. 131 141 The doctrine of equitable estoppel may be invoked against a municipality as if it were an individual, Salkolsky v. City of Coral Gables; 7 Texas Co. v. Town of Miami Springs; 8 City of North Miami v. Marguiles; 9 and the City's contention that the doctrine is inapplicable where actual physical construction has not yet begun, is without merit. Salkolsky, supra; Bregar v. Britton; 10 Frink v. Orleans Corporation; I I Marguiles, supra; City of Hollywood, supra; City of Gainesville v. Bishop. 12 As correctly stated by the Fourth District in City of Hollywood, supra, at 869, the doctrine of equitable estoppel will preclude a municipality from exercising its zoning power where WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk (A) property owner (1) in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right *16 he acquired. Salkolsky v. City of Coral Gables, 151 So.2d 433 (Fla. 1963).' This Court has never had the occasion to decide if the exception to the Salkolsky rule alluded to, but not invoked, by the Fourth District should be established, i.e., that a city may revoke a building permit even after good faith reliance by the landowner on the zoning law and even after a substantial change has been made in his position or incurring extensive obligations, '... if the municipality can show that some new peril to the health, safety, morals, or general welfare of the municipality has arisen between the granting of the building permit and the subsequent change (in) zoning ...' 13 While we cannot preclude the adoption of such an exception in the future, we have no reason to consider it in the instant case. 151 161 In applying the Salkolsky rule, the Fourth District found that, I. . . (T)he plaintiffs obtained a building permit from the City of Hollywood on January 23, 1970. Without actual or constructive knowledge of any impending zoning change, the plaintiffs spent almost two hundred thousand dollars on a site plan, models of the community, architect's plans and specifications and building permits. This money was spent in good faith reliance on the city's rezoning of the plaintiffs' land to RC -12 multiple family. Under these circumstances the City of Hollywood was equitably estopped from changing the zoning of the plaintiffs' land from RC -12. The plaintiffs had a vested property right in the continuation of the RC -12 zoning.' 14 With this conclusion we agree. However, the District Court then held that '... (W)Inen the city commission decided not to change the zoning classification of the plaintiffs' property and Diaz, Carlos 2/8/2017 For Educational Use Only Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) notified the plaintiffs that they could start construction under their building permit and the plaintiffs having elected not to proceed or initiate construction on the land and voluntarily surrendering their building permit to the city in March 1971, the plaintiffs thereby relinquished and forfeited their vested right under the building permit and in the continuance of the RC -12 zoning classification of their land. The city could then validly rezone plaintiffs' property from RC -12 to another classification.' 15 It would be unconscionable to allow such a holding to endure since it fails to take into account the unique facts which dominate the instant case. First, it is undeniable that the only circumstance which necessitated the ultimate rezoning was the adverse political climate which wrought the defeat of every commissioner who had voted for Ord. 0-69-46. Second, the delays caused by the City Commissioners in having allowed the appeal from the Zoning Board's denial of its rezoning petition to its own members sitting as the Board of Appeals to languish in limbo for some eleven months, were countenanced with a full understanding that any immediate rezoning would meet with adverse legal consequences. This conclusion is borne out by the City attorney's repeated warnings to the Commission that any such ordinance would be invalidated under this Court's decision in Salkolsky, supra. Thus, it is *17 clear that the City sought to accomplish by delay that which it could not effect by an immediate rezoning. Indeed, we must agree with the conclusion of the Fourth District that the City affirmed the Zoning Board's denial of its rezoning petition on February 17, 1971, only `After it became apparent to the city commission that the plaintiffs could not profitably carry out their project because of the prevalent poor economic conditions ....' 16 It is only too clear that the City was aware of the adverse effects that the resulting delays were having on the petitioners' projects in light of the testimony adduced at the trial court's March 4, 1970, hearing on the City's motion to dismiss, i.e., that all activities had been brought to a halt until the City made up its mind; that a partial rezoning of the property would destroy the petitioners' site WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk plan; and that a one-year delay in construction would add three quarters of a million dollars to the cost of the first building. It must, therefore, be assumed in light of this and other testimony that the Commission knew that the petitioners could not proceed to build or attract financing from potential investors until the matter of rezoning was definitely decided. it is also reasonable to assume that the City was aware that with each day it deferred action that the building market and the national economy were constantly deteriorating into a recessionary stale. It must also be remembered that at its February 17, 1971, meeting the Commission in one fell swoop Without prior notice to the petitioners: affirmed after an eleven month delay the Zoning Board's denial of its petition to rezone; repealed its motion of July 15, 1970, which had extended the life of the permit until the Completion of the litigation between the parties, and mandated that the petitioner proceed with construction within ninety days. Under the circumstances, these actions were arbitrarily taken. The affirmance of the Zoning Board's decision had the dual effect of lifting the petitioners out of limbo but casting them into the depths of the inferno. This is especially true when the affirmance is coupled with the repeal of the motion extending the permit. Such an indefinite extension was a municipal action upon which the petitioners in good faith had substantially altered their position from one of readiness to build to one of necessarily dismantling their construction organization in order to actively assert their rights in the prosecution of their suit against the City. Such an action and reliance thereon satisfies (lie requirements of the Salkolsky rule. The City's contention that the Commission intended this extension to remain in effect only until the end of the litigation on its interlocutory appeal is without merit. The motion was not so worded, but clearly stated that the permit was to be extended until the litigation between the parties was completed. If the City intended to limit this extension, it should have worded the motion accordingly. On this point, the applicable analogy must be drawn to the doctrine of statutory and constitutional interpretation of Expressio unius est exclusio alterius. Furthermore, if the motion was so limited, its repeal would have been automatically affected when this Court notified the parties that we had denied certiorari, and there would have Diaz, Carlos 2/8/2017 For Educational Use Only Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) been no need for the Commission to expressly repeal the motion. As noted previously, the suit was actively prosecuted by both parties during the ninety -day period and litigation thereon has continued up until the present time. The mandated ninety -day period was an unreasonable lack of time in view of the above arbitrary actions by the City and its knowledge that it had taken the petitioners some nine or ten months to complete the necessary preparations to achieve a state of readiness to begin construction on January *18 23, 1970, when they paid some $15,000.00 for the building permit. Under these circumstances the petitioners' failure to build and even their request for the return of the permit fee, until economic conditions improved did not constitute a surrender of their permit or a relinquishment of their vested right in the continuance of the RC -12 zoning. This Court would be undeserving of its equitable powers if we did not enjoin the two disputed ordinances. Indeed, as this Court stated in Texas Co., supra, at 809, we find the petitioners' cause to be 'pregnant with equity.' The arbitrary action by the City Commission sub judice has not even produced an embryo and thus will not be countenanced by this Court. Salkolsky, supra; Texas Co., supra. [7] Every citizen has the right to expect that he will be dealt with fairly by his government. Marguiles, supra, at 425-26. 'Unfair dealing' by a municipality can also serve as the basis for the involcement of equitable estoppel. City of Jacksonville v. Wilson. 17 While a City Commission certainly possesses the prerogative of deciding to defer action on such a proposal over a long period of time, it must assume the attendant responsibility for the adverse effect it knows or should know its deliberate inaction will have upon the parties with whom it is dealing. In the instant case, the course of Inaction chosen by the City and its subsequent arbitrary actions must necessarily be equated with 'unfair dealing.' Wilson, supra; Marguiles, supra. For the reasons expressed in its opinion the District Court correctly reversed the chancellor's finding as a mailer of WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk law that the retention of the building permit fee by the City would constitute a forfeiture. City of Hollywood, supra, at 871. The case of City of Miami v. Miller, 18 relied upon by the petitioners, is inapplicable to the cause now before us. The record does not reveal whether or not the City has returned the fee to the petitioners. in the event the fee is in the petitioners' possession, it must be returned to the City, and in this regard the District Court is affirmed. In other respects the opinion of the Fourth District Court of Appeal is quashed and this cause is remanded for entry of an opinion consistent with the views hereinabove expressed. Affirmed in part and reversed in part. It is so ordered. ADKINS, C.J., ROBERTS and HATCHETT, JJ., and McCRARY, Circuit Judge, concur. ENGLAND, J., dissents with an opinion, with which OVERTON and SUNDBERG, JJ., concur. ENGLAND, Justice (dissenting). I dissent. There is no direct conflict between the district court's decision and the decision of any other Florida appellate court. The majority below carefully analyzed the decisions alleged by petitioners as a basis for the exercise of our jurisdiction. It found, however, that they did not appropriately apply to command the result which petitioners there sought. i view our constitutional role as being more narrow than providing litigants with a second appeal in select cases, as is done here, and I would discharge the writ of certiorari. OVERTON and SUNDBERG, JJ., concur. All Citations 339 So.2d 10 Diaz, Carlos 2/812017 For Educational Use Only Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (1976) Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Footnotes 1 City of Hollywood v. Hollywood Beach Hotel, 283 So.2d 867 (Fla.App. 4th 1973). 2 265 So.2d 43 (Fla.1972). 3 251 So.2d 665 (Fla.1971). e.g. First Atlantic National Bank v. Cobbett, 82 So.2d 870 (Fla.1955); In Re Baldridge's Estate, 74 So.2d 658 (Fla.1954); Povia v. Melvin, 66 So.2d 494 (Fla.1953); Ford Motor Co. v. Waters, 273 So.2d 96 (Fla.App.3d 1973); Nixon Construction Co. v. Dover, 218 So.2d 458 (Fla.App.lst 1969); St. Paul Mercury Ins. Co. v. Conley, 201 So.2d 618 (Fla.App.4th 1967); 2 Fla.Jur. Appeals, s 346 (1963). 4 City of Hollywood, supra, at 868-870. 5 Webster's Third New International Dictionary 731 (1961). 6 Id. at 395. 7 151 So.2d 433 (Fla. 1963). 8 44 So.2d 808 (Fla.1950). 9 289 So.2d 424 (Fla.App. 3d 1974). 10 159 Fla. 646, 75 So.2d 753 (Fla.1954). 11 32 So.2d 425 (Fla. 1947). 12 174 So.2d 100 (Fla.App.lst 1965). 13 City of Hollywood, supra, at 870 interpreting Texas Co., supra, at 809-810. It seems clear that this Court in Texas Co., supra, was speaking of the exception in the City's charter for the procedure of enacting emergency ordinances and not to an exception to the rule now under consideration. 14 City of Hollywood, supra at 870. (Emphasis added.) 15 Id. 16 City of Hollywood, supra, at 868. (Emphasis added.) 17 157 Fla. 838, 27 So.2d 108 (1946). 18 148 Fla. 349, 4 So.2d 369 (1944). ono of Document _` 20'7 Thcroson Reu,e,s Ivo claim ie ori,)mal U c Gcv-cm-leni \Yorks WESTLAW Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (1975) KeyCite Yellow Flag - Negative Treatment Distinguished by Pasco County v. Tampa Development Corp., Fla.App. 2 Dist., November 29, 1978 309 So.2d 571 District Court of Appeal of Florida, Second District. TOWN OF LARGO, Florida, a Municipal Corporation, et al., Appellants, V. IMPERIAL HOMES CORPORATION, Appellee. No. 73-733• 1 March 14, 1975• Town appealed from an order of the Circuit Court, Pinellas County, B. J. Driver, J., which enjoined it from enforcing restrictive zoning requirements to prevent a developer from building high-rise apartments on certain property within the town. The District Court of Appeal, Grimes, J., held that where the town approved the developer's request to rezone land to permit high-rise development knowing that the developer's purchase of the land was contingent on such approval, and by the time it had any notice that the town planned to rezone, the developer had expended over $379,000 for land and development, the town was estopped from rezoning the land to bar high-rise development. Affirmed. West Headnotes (5) [1] Zoning and Planning 6- Estoppel or inducement 414 Zoning and Planning 414XI Enforcement of Regulations 4141<1767 Defenses to Enforcement 4141770 Estoppel or inducement (Formerly 414762) Doctrine of equitable estoppel is applicable to local government exercising its zoning power when property owner relying in good faith upon some act or omission of government has made such substantial change in position or incurred such extensive obligations and expenses that it Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk would be highly inequitable and unjust to destroy rights he has acquired. 34 Cases that cite this headnote [2) Zoning and Planning Rights of objecting owners; continuity of regulation 414 Zoning and Planning 414III Modification or Amendment; Rezoning 414III(A) In General 414k1154 Rights of objecting owners; continuity of regulation (Formerly 414k151) There is no requirement that landowner must have either obtained building permit or made physical changes in land in reliance on existing zoning in order for doctrine of equitable estoppel to be invoked to preclude municipality from making zoning change. 13 Cases that cite this headnote [3[ Zoning and Planning a- Rights of objecting owners; continuity of regulation 414 Zoning and Planning 414III Modification or Amendment; Rezoning 4141II(A) In General 414k 1154 Rights of objecting owners; continuity of regulation (Formerly 414161) Purchase of land does not create right to rely on existing zoning. 2 Cases that cite this headnote [4[ Zoning and Planning $-- Rights of objecting owners; continuity of regulation 414 Zoning and Planning 414I11 Modification or Amendment; Rezoning 414III(A) In General 414kl 154 Rights of objecting owners; continuity of regulation (Formerly 414k 15 1) WestlawNexf _E) 2015 Thomson Reuters No claim to original U.S. Government Worl<s Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (1975) Where town approved developer's request to rezone land to permit high-rise development knowing that developer's purchase of land was contingent on such approval, and by the time it had any notice that town planned to rezone, developer had expended over $379,000 for land and development, town was estopped from rezoning land to preclude high-rise development. 3 Cases that cite this headnote 151 Zoning and Planning Q- One -family, two-family, or multiple dwellings 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(B) Particular Matters 414k1066 Architectural or Structural Designs 4141071 One -family, two-family, or multiple dwellings (Formerly 41466, 414k109) Where property was totally surrounded by single-family zoning districts and was suitable for single family development, single-family zoning of property would not be unreasonable. Cases that cite this headnote Attorneys and Law Firms *571 Tom R. Moore, Clearwater, for appellants. Charlie Luckie, Jr., Macfarlane, Ferguson, Allison & Kelly, Tampa, and R. Marlin Smith and Clifford L. Weaver, Rose, Hardies, O'Keefe, Babcock & Parsons, Chicago, Ill., for appellee. Opinion GRIMES, Judge. This is an appeal from a final judgment enjoining the Town of Largo (Town) from enforcing restrictive zoning requirements to prevent Imperial Homes Corporation (Imperial) from building high-rise apartments on certain property within the Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk city limits. Since the lower court ruled against the Town, the facts shall be set forth in the light most favorable to Imperial. On October 30, 1968, Imperial entered into a contract to purchase the twenty-five (25) acre `Trotter Tract' for $200,000. *572 The tract was zoned `UZ' (unzoned) which permitted development without restriction Nevertheless, Imperial made the contract of sale contingent upon its obtaining zoning which would Expressly allow a multiple family development. Imperial requested the Town to rezone the tract to permit multiple family dwellings, including high-rise apartments, without limitation as to density or height. On December 17, 1968, based on the favorable recommendation of the Zoning Commission, the Largo Town Commission voted unanimously to approve the rezoning. Imperial then purchased the property. In 1969, the adjoining sixteen (16) acre `Campbell Tract' was offered for sale. The Campbell Tract was zoned `UZ.' Imperial contacted the appropriate officials of the Town and was told that multiple family development was permissible on the Campbell Tract. Imperial then purchased the Campbell Tract at a cost of $110,000. In September of 1971, the Town retained a professional planner to prepare recommendations for overcoming deficiencies in the Largo zoning ordinance and to recommend rezoning where appropriate. Notice that public hearings would be held on the rezoning recommended by the planner was published on November 22, 1971. In the meantime, Imperial submitted its detailed master plan to the 'town engineer on November 15, 1971. The master plan came before the full Town Commission for approval on November 23, 1971. The plan was referred back to the Town engineer for review. According to the Town Manager, there was no suggestion in any of the discussion that the master plan did not comply with the ordinances and regulations of the Town as they then existed. When several residents raised an objection to the proposed project at a commission meeting held on January 5, 1972, one of the Zoning Board members observed that he did not feel the Town could morally deny something which had already been given. On January 15, 1972, the Town Commission and the Zoning Board held a joint meeting to consider WestlawNext' �s:, 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (1975) the planner's recommendations. The recommendation for Imperial's property was that it be zoned `RM -39' (39 units per acre), the highest density. When Imperial agreed to limit its construction to only twenty-four units per acre and to use the Campbell Tract only for recreational purposes, the majority voted in favor of RM -39 zoning. A public hearing on the proposed zoning ordinance was held on March 21, 1972. At this time, a motion was made to change the proposed zoning for Imperial's property from RM -39 to RM -21.8 (21.8 units per acre). The hearing was continued until April 12, 1972, so that Imperial could be given notice of the suggested change. At the April 12th meeting, a motion was made to zone the property `R-2.5', The most restrictive single family zone. The hearing was again continued so that Imperial could be given the proper notice. On May 3, 1972, the Town Commission voted to zone the property R-2.5 (2.5 units per acre). The trial court found that as a result of the representations made to Imperial that the land could be used for multiple - family high-rise apartment houses, the Town was estopped from denying such use to Imperial. The court enjoined the Town from enforcing single family zoning classifications on the land and ordered it to rezone the property to a classification allowing construction of high-rise multiple - family dwellings reasonably consistent with the last master plan submitted. Ill The doctrine of equitable estoppel is applicable to a local government exercising its zoning power when a property owner (1) relying in good faith (2) Upon some act or omission of the government (3) has made such a substantial change in position or incurred such extensive obligations and expenses *573 that it would be highly inequitable and unjust to destroy the rights he has acquired. City of Hollywood v. Hollywood Beach Hotel Company, F1a.App.4th, 1973, 283 So.2d 867. See Texas Co. v. Town of Miami Springs, Fla. 1950, 44 So.2d 808; City of Naples v. Crans, Fla.App.2d 1974, 292 So.2d 58; City of Gainesville v. Bishop, Fla.App.l st, 1965, 174 So.2d 100. Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk lel The Town asserts that before the doctrine of estoppel can be invoked to preclude a municipality from making a zoning change, the land owners must have either obtained a building permit or made physical changes in the land in reliance on the existing zoning. While it is likely that one or both circumstances will have occurred in most cases where the doctrine is applied, their existence cannot be deemed, as it were, a condition precedent. The trial judge put it well in the final judgment when he said: `Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon. A citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds....' 131 141 The mere purchase of land does not create a right to rely on existing zoning. City of Miami Beach v. 8701 Collins Ave., Fla. 1954, 77 So.2d 428. But, there is more here. At Imperial's request, the Town zoned the Trotter Tract to a multiple -family classification. At that time the Town knew that Imperial planned a multiple -family high-rise development and that the purchase of the land by Imperial was contingent upon obtaining multiple -family zoning. With knowledge that Imperial would rely thereon, the Town approved the requested rezoning. Thereafter, Imperial bought the land and commenced the elaborate preparations necessary to the construction of a large development. Its master plan might well have been submitted earlier had the Town not changed certain setback requirements in 1971 which necessitated the redrawing of plans. Not until April 12, 1972, did Imperial have any notice that the Town officials contemplated a change in the zoning to single family. By that time Imperial had spent, or was obligated to spend, $310,000 for the land and over $69,000 in architectural fees, interest, taxes, sewer permits, and other direct development costs. WestlawNext D 2015 Thomson Reuters. No claim to original U S Government Works. Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (1975) In point of fact, the Town concedes that there was Some good faith reliance by Imperial, but claims that the reliance was not `substantial' enough to support estoppel. Specifically, the Town requests us to currsider only thuse expenses made by Imperial prior to November 22, 1971, the date of the notice that public hearings would be held on the planner's recommendations. The Town asks us to determine that payments made after that date were not made in good faith in that there was `zoning in progress.' Had the mission of the planner been to recommend zoning classifications of lower density for all vacant property in Largo, the Town might have a point. However, the job of this planner was primarily to update and revise the zoning ordinance to avoid duplication and confusion. As it turned out, the planner's recornrnendatiuns were in harmony with Imperial's master plan, and the Town has not refuted Imperial's claim that its land was the only parcel upon which the premissible density was reduced. Any contention that Imperial should have been alerted to the risk of expending further monies when members of the community appeared at the November 23, 1971 meeting to object to the proposed high rise construction is set at rest by the case of Sakolsky v. City of Coral Gables, Fla.] 963, 151 So.2d 433. There, the Supreme Court *574 rejected the contention that the builder `had good reason to believe' that the official mind might change because numerous persons had raised objections at the meeting in which the requests were granted and because the city commission membership was subject to change in an upcoming election. The court held the builder had a right to rely on the actions of the current governing body regardless of the existence of public protest. In the instant case, even though the number of protesters increased at every subsequent meeting, at all times until April 12, 1972, the `official mind' of the Town Commission continued to reflect the view of permitting Imperial to go forward with its construction. In essence, the Town has asked us to rectify what it now considers to have been a `mistake' End of Document Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk made by its 1968 commission and perpetuated thereafter. This, we cannot do. The record amply supports the findings of the trial court resulting in estoppel against the Town. 151 As a second ground for the judgment, the court below concluded that single family zoning for the subject property was `unreasonable.' The parties interpret this conclusion to mean that the zoning was not `fairly debatable.' On this point we agree with the Town that the zoning was `fairly debatable.' See City of Miami Beach v. Lachman, Fla. 1953, 71 So.2d 148. There was competent opinion given on both sides of the question. While the record reflects that the decision to go to single family zoning was more the result of public clamor than conscientious deliberation by the Town Commission, Imperial's property is totally surrounded by single family zoning districts, and no showing was made that the property is unsuitable for single family development. However, in view of our decision regarding estoppel, the fact that the zoning could be upheld as fairly debatable is of no avail to the Town. Lest our decision be misconstrued, we recognize an increasing awareness on the part of local governments of the growth problems which vitally affect many of the communities in Florida. 'Therefore, nothing in this opinion should be construed as any impediment to the efforts of municipalities and other local governmental entities which exercise zoning authority from reducing the density provisions in their zoning regulations in an orderly and comprehensive manner, provided this is accomplished in the interest of the public health, safety and welfare and in a way as not to mislead innocent parties who in good faith rely to their detriment upon the acts of their governing bodies. Affirmed. BOARDMAN, Acting C.J., and SCHEB, J., concur. All Citations 309 So.2d 571 © 2015 Thomson Reuters. No claim to original U.S. Government Works. W"destlawNext" D 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Diaz, Carlos 2/812017 For Educational Use Only Castro v. Miami -Dade County Code Enforcement, 967 So.2d 230 (2007) 32 Fla. L. Weekly D1728 KeyCite Yellow Flag - Negative Treatment Distinguished by Monroe County v. Carter, Fla App. 3 Dist., July 21 2010 967 So.2d 230 District Court of Appeal of Florida, Third District. Alberto CASTRO and Clara L. Castro, Petitioners, v. MIAMI-DADE COUNTY CODE ENFORCEMENT, Respondent. No. 3Do6-1326. July 18, 2007. 1 Rehearing Denied Nov. 9, 2007. Synopsis Background: Property owners were cited for maintaining an addition in violation of set -back requirements ordinance. Property owners petitioned for writ of certiorari. The Circuit Court, Miami -Dade County, Appellate Division, Joseph P. Farina, Robert N. Scola, Jr., and Scott M. Bernstein, JJ., denied the petition. Property owners petitioned for writ of certiorari. [Holding:] The District Court of Appeal, Rothenberg, J., held that county was equitably estopped from enforcing set -back requirements ordinance. Petition granted. West Headnotes (8) 1l Certiorari Scope and extent of review in general 73 Certiorari 731T Proceedings and Determination 7300 Appeal or Other Proceedings for Review 73k70(5) Scope and extent of review in general WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk The scope of the district court of appeal's review on second-tier certiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law. U.S.C.A. Const.Amend. 14. 2 Cases that cite this headnote 121 Certiorari Scope and extent of review in general 73 Certiorari 73I1 Proceedings and Determination 73k70 Appeal or Other Proceedings for Review 73k70(5) Scope and extent of review in general While a district court of appeal is governed by a very narrow standard of review on second-tier certiorari, discretionary use of its certiorari power must not be so narrowly applied as to deprive litigants and the public of essential justice. 2 Cases that cite this hcadnote 131 Estoppel Estoppel Against Public, Government, or Public Officers 156 Estoppel 156111 Equitable Estoppel 1561TT(A) Nature and Essentials in General 1561<62 Estoppel Against Public, Government, or Public Officers 156k62.1 In general Doctrine of equitable estoppel may be invoked against a governmental entity just as if it were an individual. 2 Cases that cite this headnote 141 Estoppel ' Estoppel Against Public, Government, or Public Officers 156 Estoppel 156111 Equitable Estoppel 1561TT(A) Nature and Essentials in General 156k62 Estoppel Against Public, Government. or Public Officers 156k62.1 In general Diaz, Carlos 2/8/2017 For Educational Use Only Castro v. Miami -Dade County Code Enforcement, 967 So.2d 230 (2007) 32 Fla. L. Weekly D1728 Doctrine of equitable estoppel may be invoked against a governmental entity where (1) a property owner in good faith reliance (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he or she acquired. 2 Cases that cite this headnote 151 Zoning and Planning i = Estoppel or inducement 414 Zoning and Planning 414X1 Enforcement of Regulations 4141<1767 Defenses to Enforcement 414k1770 Estoppel or inducement (Formerly 414762) County was equitably estopped from enforcing set -back requirements ordinance more than 20 years after property owners purchased townhouse with an already -built family room addition for which the original owners had obtained the proper building permits, where county issued additional permits for the improvement and maintenance of the family room addition over the years, with the knowledge that the owners were incurring a substantial investment of time and money in reliance that the building permits were properly issued; it would have been grossly unfair to deny the owners the protections afforded by the doctrine of equitable estoppel. Cases that cite this headnote 161 Estoppel 4— Estoppel Against Public, Government, or Public Officers 156 Estoppel 156111 Equitable Estoppel 156TiT(A) Nature and Essentials in General 156k62 Estoppel Against Public, Government, of Pudic Officers 156k62.1 in general WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Doctrine of equitable estoppel may only be applied against a governmental entity under exceptional circumstances. 2 Cases that cite this headnote 171 Estoppel - Basis of estoppel 156 Estoppel 156II1 Equitable Estoppel 1561ii(A) Nature and Essentials in General 156k52 Nature and Application of Estoppel in Pais 156k52(2) Basis of estoppel Doctrine of equitable estoppel is based fundamentally on rules of fair play. Cases that cite this headnote 181 Zoning; and Planning; Estoppel or inducement 414 Zoning and Planning 414XT Enforcement of Regulations 4141767 Defenses to Enforcement 414k1770 Estoppel or inducement (Formerly 414k762) A citizen is entitled to rely on the assurances or commitments of a zoning authority and if lie does, the zoning authority is bound by its representations, whether they be in the form of words or deeds. Cases that cite this headnote Attorneys and Law Firms *231 Carbonell Law Firm, and Alberto M. Carbonell, Plantation, for petitioners. R.A. Cuevas, Jr., Acting Miami -Dade County Attorney, and Diamela del Castillo, Assistant County Attorney, for respondent. Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ. Diaz, Carlos 2/8/2017 For Educational Use Only Castro v. Miami -Dade County Code Enforcement, 967 So.2d 230 (2007) 32 Fla. L. Weekly D1728 Opinion ROTHFNBFRG, Judge. Petitioners, Alberto Castro and Clara L. Castro (the "Castros"), via petition for writ of certiorari, seek review of a decision of the circuit court sitting in its appellate capacity denying their petition for writ of certiorari and finding that the doctrine of equitable estoppel does not preclude the Respondent, Miami -Dade County (the "County"), from enforcing its set -back requirements ordinance against the Castros. Because we find that the appellate division of the circuit court failed to apply the correct principle of law in resolving the issue, we grant the petition for writ of *232 certiorari and quash the circuit court's order. The undisputed facts of this case, as set out in Judge Bernstein's concurring opinion and contained in the record, are as follows. In 1983, the Castros purchased a townhouse that was built in 1980 as part of a townhouse development community, which, after a public hearing, was approved by the County with the requested special exceptions and non-use variances pursuant to Resolution No. 4-ZAB-448-78. At the time the Castros purchased their townhouse, it came with an already -built family room addition for which the prior owners had obtained the proper building permits. Judge Bernstein concluded that "the addition is located about five feet away from the rear property line, apparently violating the zoning ordinance in existence at that time." The set -back ordinance at the time the addition was built provided that front and rear setbacks must be at least fourteen feet. I Notwithstanding the addition's "apparent" violation of the zoning ordinance, the County subsequently issued another building permit on February 23, 1993, for a hurricane re -roof, which included re -roofing of the addition. The County also issued a building permit on June 03, 2004, for iron works that again included the addition. In 2003, the County passed section 33-50 of the Miami - Dade County Code (the "Code") requiring twenty-five foot setbacks of both the front and rear of residential structures and setbacks of five to seven and one-half feet on the sides, within this zoning classification. This WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk ordinance applied retroactively and contained no sunset provision. On April 161, 2004, more than twenty years after the Castros purchased their townhouse, which came with the family room addition, a Code Enforcement Officer issued a warning citation to the Castros for illegally constructing the addition in violation of section 33-50 of the Code. The Code Enforcement Officer referred the matter to the Miami -Dade Building Department. The Miami -Dade Building Department issued a report finding that the family room addition on the Castros' property was completed prior to 1983 after the original owners had acquired the requisite permits, and that the case had been opened in error as no building violation existed. Not satisfied with this outcome, the Code Compliance Officer on September 9, 2004, cited the Castros with "maintaining the addition" in violation of the required setbacks of section 33-50 of the Code. After an evidentiary hearing, the Miami -Dade County Code Enforcement Board affirmed the citation. In her order, the administrative officer did not make any factual findings as to the validity of the permits, the actual set -back measurements of the property, or the applicable set -back ordinance pertaining to this particular property. Instead, the hearing officer only specified that the preponderance of the evidence established that the Castros were responsible for violating section 33-50 of the Code. The Castros challenged the hearing officer's order via petition for writ of certiorari to the circuit court sitting in its appellate capacity. The Castros argued on appeal, in pertinent part, that the County should be equitably estopped from enforcing section 33-50 of the Code against their property since the addition was already built when they bought the townhouse and the prior owners had obtained all of the required permits for the addition. The circuit court denied the petition without a *233 written majority opinion. Judge Bernstein in his concurring opinion, however, specifically noted that although the majority's approval of the Code Enforcement Board's decision was "clearly inequitable" and "justice is thoroughly offended," he was compelled to concur with the majority's decision "as by law, equitable estoppel can not lie in this case." Additionally, Judge Bernstein concluded that the building permits issued for the addition were invalid since the addition "apparently" violated the fourteen -foot set -back requirements when they were Diaz, Carlos 2/812017 For Educational Use Only Castro v. Miami -Dade County Code Enforcement, 967 So.2d 230 (2007) 32 Fla. L. Wcckly D1728 issued. He, therefore, concluded that the Castros could not, by law, invoke the doctrine of equitable estoppel against the County. The Castros seek quashal of the circuit court's order and a finding by this court that the County should be equitably estopped from enforcing section 33-50 of the Code regarding the addition to their home, which was made over twenty-five years ago in reliance of the permits issued by the County. [11 121 We begin our analysis, acknowledging, as we must, that the "scope of the district court's review on second-tier certiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law." Rliami-Duda County v. Omnipoint Holdin,irs, hic., 863 Sold 195, 199 (F1a.2003); S. Group Indem., Inc. v. Humanitary Health Cure, Inc., 32 Fla. L. Weekly D1396, D1397, --- So.2d ----, ----, 2007 WL 1542019 (Fla. 3d DCA May 30, 2007)("[T]he proper inquiry under second- tier certiorari review is whether the circuit court afforded procedural due process and whether it applied the correct law."). However, while "the district courts are governed by a very narrow standard of review, discretionary use of its certiorari power must not be so narrowly applied as to deprive litigants and the public [of] essential justice." S. Group Indem., 32 Fla. L. Weekly at Dl 397,---So.2d at ----. 131 141 The sole issue before this court is whether the circuit court correctly applied the law of equitable estoppel in this case. The doctrine of equitable estoppel may be invoked against a governmental entity just as if it were an individual. Holh•irood Beach Hotel Co. v. City gf Hollvmoocl, 329 So.2d 10, 15 (Fla. 1976). The doctrine of equitable estoppel may be invoked against a governmental entity where (1) a property owner in good faith reliance (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he or she acquired. Id. at 15-16; Sun Cru_ Casinos, L.L.C. v. City of Holl-virood, 844 So.2d 681, 684 (Fla. 4th DCA 2003); Equit1, Res., Inc. r. County gf Lcon, 643 So.2d 1112, 1117 (Fla. 1 st DCA 1994); see also Coral Springs St. Si°s., Inc. v. City gf Srmrise, 371 F.3d 1320, 1334 (11 th Cir 2004)(applying Florida law). 151 161 The doctrine of equitable estoppel, however, may only be applied against a governmental entity under WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk exceptional circumstances. Monroe Count), n Hemisphere Equity Rcally, Inc., 634 So.2d 745, 747 (Fla. 3d DCA 1994). We find that the County's issuance of the required permits to the original owners, well before the Castros purchased their home from them with the addition already built; the Castros' continued use of the addition; and, the Castros' reliance upon the validity of the permits issued during a period of over twenty-five years, presents such an exceptional circumstance. We specifically find that it would be unconscionable to deny the Castros the protections afforded by the doctrine under the circumstances of this case. We agree with Judge Bernstein that under the circumstances of this case, *234 "gross inequities are at play" and "justice is thoroughly offended by the decision rendered by the Code Enforcement Board and approved by the majority." The fact that the County initially issued permits for the construction of the family room addition, and subsequently issued additional permits for the improvement and maintenance of the family room addition over the last twenty-five years, with the knowledge that the Castros were incurring a substantial investment of time and money in reliance that the building permits were properly issued, establishes that it would be grossly unfair to deny the Castros the doctrine of equitable estoppel. At this stage of the game, it would be grossly inequitable to allow the County to repudiate its prior conduct and require the Castros to demolish their family room addition. 171 181 As Florida courts have emphasized, "[t]he doctrine of equitable estoppel is based fundamentally on `rules of fair play.' " Equity Res., 643 So.2d at 1119 (quoting Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla. 2d DCA 1975)). More broadly stated: Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the miles of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon. A citizen is entitled to rely on the assurances or commitments Diaz, Carlos 2/8/2017 For Educational Use Only Castro v. Miami -Dade County Code Enforcement, 967 So.2d 230 (2007) 32 Fla. L. Weekly D1728 of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds.... Coral Springs St. Sys., 371 F.3d at 1334-35 (quoting Imperial Homes, 309 So.2d at 573)(applying Florida law); Equity Res., 643 So.2d at 1119-20 (quoting Imperial Homes, 309 So.2d at 573). The rules of fair play require us to conclude that under the facts of this case, the County is equitably estopped from enforcing section 33-50 of the Code against the Castros. Thus, we hold that the circuit Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk court erred in failing to apply the doctrine of equitable estoppel to the circumstances of this case and thereby departed from the essential requirements of the law. We, therefore, grant the petition for writ of certiorari and quash the order rendered by the circuit court. PETITION GRANTED. All Citations 967 So.2d 230, 32 Fla. L. Weekly D1728 Footnotes The Miami -Dade County Code applicable at the time defined "setback" as "[t]he minimum horizontal distance between the street, rear or side lines of the lot and the front, rear, or side lines of the building." Miami -Dade County, Fla., Code § 33-1(96) (1978). End of Document © 2017 Thomson Reuters No claim to original U S Government Works WESTLAW Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Bayside Motor APPROVED BY HEP BOARD Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk City issues Class II Permit with 87 feet height PZAB denies appeal of Class II 12004 November 4 2004 Commission reverses PZAB July 14, 2006 Circuit Court quashes Commission's decision 2005 1 2006 1 2007 v 28, 2008 Commission approves Class II with 35 feet height November 13, 2008 Circuit Court upholds Commission's decision 2008 2009 October 7, 2009 Appellate Court reverses Circuit Court May 27, 2010 Commission approves Class II with 35 feet height April 25, 2012 Appellate Court quashes Commission's decision Commission approves Class II with 87 feet height January 9, 2014 Commission approves Settlement Agreement February 28, 2014 HEP Board approves Special COA February 7, 2017 HEP Board approves new Special COA it 2010 2011 2012 20113 2014 2015 2016 2017 Unofficial Draft _ i� —�—— 1 air C� 5125j 5101 k i ►ti �I -, +�"•}_I { I Legend . j I � _i -;� - d + V /•,T•j,•r • • • prrr 0.•urw� Ii�lnx �SIAy 1 ,�# i tiV� 1 �, .- 'III C'rflaC�[fnq R�-etw r --i Ey - lit»Cw�ll+[NlllgRr'rafPr A- F] k Changed, Added, or Removed Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 5215!- 0vd 1755 G ._ EMd SYAF«alJga�,� ESE �r 5305 Enc Bt.d i0 Nsi dl6sar»hv `SViSh:}C �*r Wt1 }yy.;�-.fie y�f �Rrn>•�e><. 5559 E:cc�ne B4d. ssse NE.^ cad 5540-SYG NE J^ Cevrl �dbl_ 5 W161CDlmeE d 1.0 sets 81­', 1ce d. 56ID "E S'^ 1 M �lrs^s S'reel •' IMratts a Perml his L l.f+rd-UrtB lid ILscayne Raatyard teal„re, a r-en:d-.ahle naroe.. of +pnheant nUlarw: Ihar anlain nlEce arrdlwreral rpa�e�camb:ranan wvn narnrd aaadera >hr amrnalon rcee�n Me eban r rp con�edr Incl were emrr:.ed hom Me •+1' tramnirp of Racayne e wh l eoukvwd'nc cor�nacM C.n (r Me rc aM/or plFce sauce wm conlanee on Ifol lbw e•e orclmnh revealed the Fype w me.chandee w servce z, the eslabfe,menl p11erH. The second of theh Unp was devpned pv an apnamml, often In Me Dreprelw al thesloe -- — o — are bold:W al ]2q J5 encayne Souk+o•d was can0-11d m 1935 a btlroma•c.Wa sena comer, Ino WYJ'np curvesm lM1e comer, Mlernp s of slo,clronl ban. ane Men edends pbn the sheet wilh Irnl m M h Rnceyne ecW vard and NE 2]d 5lreel. the bald np's peomelry, abnB w M Ir< r.rrna.�al rrorc fors Mal rNena a�roa Me lasade ahama�enae Me Wii Aa Deco vlyb IFpve 51 M o sm�, bat much tiger acolr m+ed u.e ra I tvidr0 at )2J5 E�ayne ReulevaM I�� N 2?^imacel. rcmanu Y. Mdr'M+Or�d �rmn. Bayside Motor 5101 Biscayne Boulevard 1952 The two-story building contained nineteen units, and was built at a cost of $55,300.00. The courtyard plan and the sheltered porch areas are typical of the motel designs of the period. Aan—hhilirp )550 R nom dl h evm-d MiMo/BISCAYNE BOULEVARD b,&k canMeednS Rvcayne E—ab d — duenp Me 19951 "Ivry dommaled fh• [yrer+M t1s. L=.3rpo akz`GI MN nal .rrrr use d o. rralxk F a�l�w nslancw. bsri r� MJ b'hd sae. ear �Rsoler npf forma eaadlaa Motel rr...m a� ns'ae^••�f lne Cn Cspc frald Mo HISTORIC DISTRICT Designalion Report kO City of Miami 51 CO Block of Biscayne Boulevard 5101 Biscayne Blvd. Bayside Motor Inn 5120-40 Biscayne Blvd. Office/Retail 1952 Contributing” 1950 Non -Contributing •lo) RMc aI g.-� ane Pc,r�wd '_llO Rrcc/,e R�tl Cmc. FWf !� J:anpDWeq wgeti-are BMd. Kelm IfJf rPe.fL,vlryk„,Nti-a 5016 Ee_a,ne 6W sos�9�.-mr.e ehd 05"r;111p m"Cv2 Z Ita_ rr rM•: V'k encs IAIi a+,xr=ml�e,lr.n7 L -Arg SOS]eh�ame Eld 5051 Enccryae End E'_Gd l cron Ku 5an`rCWN; Sana 1'r_al Chcych SCdl EnccyneeW .•R�d^e'al ail' c�hr: rrnny 51'N Ricrynr&M FR'E+ 4 IIm-Ganhl,. diy{ J24 RscM=&Id. R.ra! 19-50 fJ:�rcaahl Airy sroc>!b� u iJ:rove Rb%tiM1 awrww�ei 1 ►x:,.•�e.� rr� eanep+rp` s 13Y1 -J] _=e�rae Rrd - 5215!- 0vd 1755 G ._ EMd SYAF«alJga�,� ESE �r 5305 Enc Bt.d i0 Nsi dl6sar»hv `SViSh:}C �*r Wt1 }yy.;�-.fie y�f �Rrn>•�e><. 5559 E:cc�ne B4d. ssse NE.^ cad 5540-SYG NE J^ Cevrl �dbl_ 5 W161CDlmeE d 1.0 sets 81­', 1ce d. 56ID "E S'^ 1 M �lrs^s S'reel •' IMratts a Perml his L l.f+rd-UrtB lid ILscayne Raatyard teal„re, a r-en:d-.ahle naroe.. of +pnheant nUlarw: Ihar anlain nlEce arrdlwreral rpa�e�camb:ranan wvn narnrd aaadera >hr amrnalon rcee�n Me eban r rp con�edr Incl were emrr:.ed hom Me •+1' tramnirp of Racayne e wh l eoukvwd'nc cor�nacM C.n (r Me rc aM/or plFce sauce wm conlanee on Ifol lbw e•e orclmnh revealed the Fype w me.chandee w servce z, the eslabfe,menl p11erH. The second of theh Unp was devpned pv an apnamml, often In Me Dreprelw al thesloe -- — o — are bold:W al ]2q J5 encayne Souk+o•d was can0-11d m 1935 a btlroma•c.Wa sena comer, Ino WYJ'np curvesm lM1e comer, Mlernp s of slo,clronl ban. ane Men edends pbn the sheet wilh Irnl m M h Rnceyne ecW vard and NE 2]d 5lreel. the bald np's peomelry, abnB w M Ir< r.rrna.�al rrorc fors Mal rNena a�roa Me lasade ahama�enae Me Wii Aa Deco vlyb IFpve 51 M o sm�, bat much tiger acolr m+ed u.e ra I tvidr0 at )2J5 E�ayne ReulevaM I�� N 2?^imacel. rcmanu Y. Mdr'M+Or�d �rmn. Bayside Motor 5101 Biscayne Boulevard 1952 The two-story building contained nineteen units, and was built at a cost of $55,300.00. The courtyard plan and the sheltered porch areas are typical of the motel designs of the period. Aan—hhilirp )550 R nom dl h evm-d MiMo/BISCAYNE BOULEVARD b,&k canMeednS Rvcayne E—ab d — duenp Me 19951 "Ivry dommaled fh• [yrer+M t1s. L=.3rpo akz`GI MN nal .rrrr use d o. rralxk F a�l�w nslancw. bsri r� MJ b'hd sae. ear �Rsoler npf forma eaadlaa Motel rr...m a� ns'ae^••�f lne Cn Cspc frald Mo HISTORIC DISTRICT Designalion Report kO City of Miami 51 CO Block of Biscayne Boulevard 5101 Biscayne Blvd. Bayside Motor Inn 5120-40 Biscayne Blvd. Office/Retail 1952 Contributing” 1950 Non -Contributing NORTH BL RO N—CON Y LOUTH BUILDING CONTRIBUTING Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk HATCH LEGEND E lAUDW�s m 93E. n_wt.sCt o tEk-06WIAMS ro ee �VARM V e9 SLIM fn • RT IN EXISTING/DEMO SECOND FLOOR DIAGRAM L12 a ce a PRE-EXISTING CONDITIONS REPORT BAYSIDE M07EL R E 5101-5123 BISCAYNE BLVD. - 4-C h t r E a r MLAM, FL 33137 -3- Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk Demolition of 5125 Biscavne Boulevard. New Construction of three-story Commercial Building As shown on the map within the designation report, the structure located at 5125 Biscayne Boulevard on the northern corner of this project site, was determined to be non- contributing to the Mi.Mo1BiBo Historic District. The applicant is proposing to demolish this structure and the current one-story connection between both buildings, and to construct a new three-story commercial building_ Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk N[: M1gv.d �ee'�'-F CF,C®dim nnrb,-Iv,9,IDla Amv:J.,b G,ae�rlrsr-, - w Fd.:.cr.a.r fib,. nr,.:lb R+ci MA•+.wa� .are T wlr+r•ti�M ��tY ra<aG� CiAgW MV i.+gh' Nrraf height, This proposed Settlement Agreement benefits the neighborhood, the residents, and the City because the Developer has voluntarily agreed to limit the height of this project to 35 feet. The Developer will use the Transfer of Development Rights Ordinance codified in Section 23-6 of the City Code to sell or transfer its "excess" intensity to a T-6 Transect Zone. The parties to the Settlement which includes the Developer, the neighborhood civic association, certain neighborhood residents, and the City will all discontinue, dismiss, and discharge all claims, appeals, actions, and controversies among one another regarding the Property. All parties will bear their own respective fees and costs, WHEREAS, this Settlement Agreement is in the best interests of the public, the City, the neighborhood and its residents as, by virtue of this settlement, Bayside 5101, LLC, ('!Bayside") as successor in interest to the Developer who will construct the project on this Property, the City, and Morningside as described above have stipulated and agreed that the Developer will adhere to the 35 foot height limit for this Project provided for in current regulations despite various court rulings holding the Developer is lawfully able to build at a greater height; and ¢amrja MblMtla�Fl�tW.vecA�acA FJalpt•Irsal,ra6isenpC rFc lr*xn<mHlel®+:rxyaa�tvatr�lr aeumeiA. rca >NR3Fa.la-�1-lmra-ea GG*aG.rf�aYbw.e..re.r•:rv'�� G¢-..aae.�rww...rer....e:rvrw �.a •.-.nwrr...w u..u.aew� r•M�+Nv�.l!rpt � 5•3ir�M'MrTl�+•F.l.} W a4 : i� r �`1- °'�'r�aa N�Ma�eea�°iY�-y.wa7 wnerNlrtllw.r r� qr� canes a a�tn rya., „e K+al>c aq.-c!< l.r Pr4-rnn 4°„sla.,m r -a r. i+e ov�Gnr Aqa n e e.re ar.aurw .bra ore re rvw•+tiarl we„ro.q.yv Ira! ___ nal,.M as�glyd ne n.e.rk t -• ore.a-nr al-ri derav„.„ m:. Mi i\uToDAY >e�e I Cty, ncighbm end d—dc of I g.Jl squabbles ,,ith a deal xnnen M John en„k, IlrJlin. o„ lanl.am r. rn. I As part of the legal settlement, Ms. Jain agrees not to exceed 35 feet in the remodeling of Bayside, and in exchange she'll be able to sell her TDRs — that is, she can sell increase density to other developers wishing to build another floor or two on high-rise prqjects of their own. the alumi C5ry Cmnmiaa,m '�- a15m,ord SqS 9i.a.m m p,e�lu.elur.lurN, with � mmc.RmJablc ellmeulFe for I Aaprl till laglralk.¢•:1. N. Jain epm:re„__ '15 Fel fn thelmrrNelgd gnu:: aeareel.:r•i.�h. �swrNh.. nr. hrR�sle>Nl in„seee::l.a,e -. •-.. ... ' .. � "art R„Glrnty l:il mnlml•,Fnerc /1r 4mMl,luml+ tithe v.lue oflnmfi,ddn.i.gnlem rielll., anir:G it.uaanNipl pma^'nChi.InCghl GuaJS fmr1 h.idn limit in Ihal m:,hf„ A •. I.� - .... �.1..,,,I .. � r vNManmelM mr.. - 'ac3 abmi melml We Dobe „ee, F.� w,M gthe lnl7ml.MAnekr7.Iw;ahbllinalwmr.,a.aaM Alumi _ Aml nilinA in thnmlximi.m of IIIc h„,lilm llliplF„is J¢Inmfer•i y�l„`a B+xYTmmnt,i1hl1 m I lrKc r..,.. Ir Fe<an withahi,h-rie lJennN fora hietmi.IraArh l{tli.a„K Mbin°Id ehmn.N t—WFmnmirhbn, anJ,h,ft, xnlq to �- As part of the legal settlement, Ms. Jain agrees not to exceed 35 feet in the remodeling of Bayside, and in exchange she'll be able to sell her TDRs — that is, she can sell increase density to other developers wishing to build another floor or two on high-rise prqjects of their own. the alumi C5ry Cmnmiaa,m '�- a15m,ord SqS 9i.a.m m p,e�lu.elur.lurN, with � mmc.RmJablc ellmeulFe for I Aaprl till laglralk.¢•:1. N. Jain epm:re„__ '15 Fel fn thelmrrNelgd gnu:: aeareel.:r•i.�h. �swrNh.. nr. hrR�sle>Nl in„seee::l.a,e -. •-.. ... ' .. � "art R„Glrnty l:il mnlml•,Fnerc /1r 4mMl,luml+ tithe v.lue oflnmfi,ddn.i.gnlem rielll., anir:G it.uaanNipl pma^'nChi.InCghl GuaJS fmr1 h.idn limit in Ihal m:,hf„ A •. I.� - .... �.1..,,,I .. � r vNManmelM mr.. - 'ac3 abmi melml We Dobe „ee, Submitted into the public Record for item(s) PZ.15 On 05-25-2017. City Clerk 0-11iiia Ulf ffliami IJANU; SIFO) SO +"+'a• Cin \lmiucr fatarch 25, 2014 Bayside 5101 LLC 7272 NE 6' Court, Suite 4 Miami, FL 33138 Re: Transfer of Devetopment Rights Gert'icate of Eigiblity Aopl Galion (TDR -2014-04) 5101 Bisw• rc Boulevard (118,755 sf of GFA x 4 -- Existing 15,492 sf building) = TOTAL TDR VOUCHERS = 459, 528 (all inclusive). This number is accurate as of the issuance date. Any additions or modifications to the building may affect this number. (118,755 sf of GFA x 4 — Proposed 25,822 sf of building) = TOTAL TDRs = 449,198 — propcsed plans, existing sits survey and current calculations, and as verified by the Zoning Administrator as per Section 23-6 (7) of the Clay Code, the applicant is entitled to: (118,755 sf of GFA x 4 — Existing 15.4112 sf bullding) = TOTAL TOR VOUCHERS =4511, Post L 0 17 528 (ell inclusive). n,4 nu-r� if Ag le as of t o t� data Any additions or modifications to the building may affect this number COAThis lelter Is to servo as notice that this sle is an Eligible Sending Site for a TPR Voucher per Chapter 23-6. If you have any questions- please contact me at (305) 416- 1423 Sincerely, mog ti 41" 3z4vi..>d- Megan Cross Schmitt Preservat,on Officer cc: Nir Frnncisco Garcia P!awng Dircalor bis Irone IicgFCus, 7nnira Adria iW-afnr F.1r Carlo,.; Lazo, Esq Gr�enLwrr; Traurq M ANN1N(; Ann ZONING DEP.AKT.YT 444 S11.2MA--,3nd'I—,,M—i. 11130 Irte.— i 3Cl 111 W 4m fax?ic I X21 SA \UIh,SAA* is I'.0 1t lin? Ml Mi—iJI -v1. 11: 1Ja]if•A TDRs Sold 340,059 TDRS Remaining 109,138