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Home My WebLink AboutSubmittal-Edward Martos-Submittal-Edward Martos-Letter to Commissioners of 7-25-19 CCSubmitted into the public record or it m s) ��. WEISS SEROTA HELM. �� city' DAA VAq, COLE & BIE1\1V1A1ISNT .J& I AT THE CROSSROADS OF BUSINESS, GOVERNMENT & THE LAw EDWARD MARTOS, ESQ. emartos ,wsh-law.com July 24, 2019 Submitted into the public VIA ELECTRONIC MAIL record for�jt m�(cl MV 1 onC�1 City Clerk Honorable City Commissioner City of Miami 3500 Pan American Drive Coconut Grove, Florida 33133 Re: Proposed Rezoning of "The Babylon" Property at 240 SE 14 Street July 25, 2019 Agenda Item PZ.9 (File ID #5900) Response to Questions Posed By Commissioner Hardemon at First Reading Dear Chairman Russell and City Commissioners: I write on behalf of the Emerald at Brickell Condominium Association, Inc. (the "Association"), Ms. Judy Santos, Ms. Jessica Melendez, and the Association's approximately 300 residents.' At first reading regarding the proposed rezoning of the Babylon property, Commissioner Hardemon asked a series of questions that got to the heart of the legal deficiencies and policy concerns presented by rezoning. In advance of second reading, I think it would be helpful to revisit his questions and our responses. 1) The Babylon's representative has suggested that "the application is not a rezoning but map correction." Why can't such a correction be made? First, neither Miami 21, the City Code, nor the City Charter authorize the City Commission to make "corrections" without regard for established processes and criteria." Second. common sense and the law dictate that corrections can only be made if the original intent of the decision maker is clear and undeniable."' Otherwise, how can we know that the right "correction" is being made? The applicant hasn't provided clear undeniable proof that the City Commission intended to zone the Babylon T6-48. City Staffs changing position on the nature and extent of the supposed error is the surest sign that no clear and undeniable proof of the original intent exists. Third, and this may be most important of all, the applicant is asking for an overcorrection. City Staff has concluded that the alleged error can be corrected by up -zoning the Babylon to T6-8-0, or to T6-12-0. At first reading, the City Commission entertained overcorrecting 2525 Ponce de Leon Blvd., Suite 700, Coral Gables, FL 33134 1 305-854-o800 I www.wsh-law.com L9 C) - Sjon - A, - Edu-Wai MA2,40S — ( aftz&4)o C.oly�l Ss-�j2P J960' S�I��n��o�by �aututt� Mar�S-J�i��r��i�-a�-Edwac�Mut`-o5- �.�er �O �a��n55�o�cr5 of `1��5�►q � Submitted into the public record f r it m(s) n on City Clerk Submitted into the p bli 01 Honorable Chair and City Commissioners record for it (s City Clerk July 24, 2019 on ip* the error (T6 -24b-0). The applicant is requesting a dramatically greater overcorrection (to T6-48). 2) "I'm having a hard time understanding why what she's describing isn't really a taking." Why isn't it? No taking has occurred because the change from Ordinance 11000 to Miami 21 did not reduce the property owner's development rights. City Staff has provided a detailed analysis showing how Miami 21 grants MORE development rights, not fewer. The table below captures Staff's analysis and also the effect of each scenarios under consideration. "0" Zoning T6 -8-R (Ord. (Current) 11000) Maximum 40,729 sf 1 99,856 sf Floor Area T6-12-0 T6 -24b-0 T6-48-0 (Staff (First (Applicant Recommends) Reading,) Seeks) 166,160 sf 255,632 sf 1263,620.5 sf The Babylon's Miami 21 zoning allows less than its ordinance 11000 zoning only in that office uses are no longer permitted. This reduction in permitted uses does not amount to a taking under Florida and Federal law." 3) "A declaration of condo units is about the structure on the ground—structure on the land, right?" Zoning goes to what can be done with the land. Why would the Babylon property owner's Declaration of Condo mean that they should forever give up office uses? 1 mention the 1999 declaration of condominium to highlight how the applicant's actions contradict its claim to have been deprived of development rights or what the courts refer to as '`investment -backed expectations." `` The applicant didn't just record a declaration, he also physically converted the Babylon building from office to residential at material expense. In doing so, the applicant made its reasonable investment -backed expectations clear: It wanted residential use of the property—not an office use. As a matter of law, the applicant can't now claim a taking on the ground that he expected office uses. Please also note that a declaration of condominium relates to, is recorded against, and runs with the land. It regulates both the structure built and uses made of a piece of land.`' 4) "In the past, on this dais, we've made corrections to actual maps that ended up having a zoning effect on [an] applicant." Why is the change requested by the Babylon not a proper corrective action given our past positions to correct maps? There's only been one such instance where the City Commission took corrective action— the Perricone's case."' That case was unique in two ways. First, it involved a clear 2 of 4 [1�� WE COLE B ERMAN HELFMAN AT 1111 CFMIW�M 01 G-1.- & nn L+ Submitted into the public record f r it 1(s) M�, on ., i City Clerk Submitted into the p It Honorable Chair and City Commissioners recor or it (s) Ci Clerk July 24, 2019 on tY undeniable scrivener's error for which proof of the original intent was provided. The applicant and City Staff was able to point to a legal description that contradicted the map." Second, the Perricone's case is distinct from the Babylon case because it involved CS zoning. Miami 21 does not require successional zoning for changes to or from CS zones.' 5) "Can a scrivener's error include maps?" Yes, but confirming a scrivener's error is nearly impossible if the map is not accompanied by a legal description, meeting minutes or some other document to cross-reference, by which to confirm the original decision makers actual intent. In the Perricone's case, a legal description dating back to 1974 made it possible to confirm the City Commission's original intent and correct the map. In the Babylon's case, there's only the map and no other hint that the City Commission intended something different. 6) Why would the City join in an application [in 20141 if there was not scrivener's error? City Staff explained at first reading that new information came to light between 2014 and 2018 that caused it to change its position. A quick look at City Staff's report for the 2014 application corroborates this. For example, the earlier staff report describes the Babylon property as being split -zoned when in fact it was never split -zoned." Furthermore, the earlier report is just three pages long. In contrast, the current staff report is a 22 -page in- depth analysis with extensive backup. 7) [In response to my suggestion that approval of the Babylon application will create a bad precedent and a possible domino effect:] If an error can exist where you have split zoning, then why can't there be an error in which two abutting properties? If the City makes mistakes after spending hundreds of hours preparing their maps, "why can't the mistake be exactly what she's describing in the record? To clarify, 1 am not suggesting that all split -zoned properties are scrivener's errors and must be up -zoned. Split -zoning is not evidence of a scrivener's error. Split -zoned properties should be up -zoned where merited after applicable processes and criteria have been satisfied. That said, split -zoned properties often represent egregious cases in which a property owner can claim to have been harmed by the lines drawn by the City's zoning map. if the City Commission approves the Babylon application on the specious claim of a scrivener's error and an alleged deprivation of property rights, then on what grounds should it deny the owners of split -zoned properties seeking similar relief? Fairness and equal protection would require that property owners in circumstances similar to or more egregious than the Babylon's circumstances should receive equal treatment. Thank you again for your time and thoughtful consideration of my client's position. I look forward to discussing it further at second reading. 3 of 4 �, WEISS SEROTA HELFMAN k,,,,, COLE &tIBIERMAN"If «, Honorable Chair and City Commissioners July 24, 2019 cc: Todd Hannon, City Clerk Victoria Mendez, City Attorney Francisco Garcia, Planning Director Melissa Tapanes, Applicant's Counsel Submitted into the pu i� record or it m(s) on City Clerk Sincerely, Edward Martos Submitted into the public record for it m(s) on_ I i � City Clerk ' This letter supplements and does not replace or waiver earlier written and oral arguments and testimony provided by or on behalf of the Association, Ms. Santos, and Ms. Melendez. ll Such criteria and processes include but are not limited successional zoning and minimum size requirements listed in Miami 21 Section 7.1.3.5. "' Armstrong v. City of Edgewater, 1257 So.2d 422, 425 (Fla. 1963) (Judicial body must be "extremely cautious in adding words to statute as enacted" and may address legislative omission or scrivener's error only "[w]hen word has obviously been omitted from statute and context of act otherwise reflects clear and unequivocal legislative intent.")(emphasis added); City orOpa-Locka v. Trustees of Plumbing Industry Promotion Fund. 193 So.2d 29, 31 (Fla. 3rd DCA 1966) (same). " It is also worth noting that the Babylon's alleged scrivener's error turns on the presence of a sub -notation on the adopted zoning map. That sub -notation incorrectly states that the Babylon property was zoned "R-4" under Ordinance 11000 when in fact it was designated "O." From that sub -notation, the Babylon extrapolates that the City Commission's action was misled and the entire decision making process was flawed. Notably, however, you're the City's competent professional planning staff disagrees. Furthermore, the Babylon property had been converted to residential use and Ordinance 11000 provided that "O" zoned properties should be developed to R-4 development standards if residential uses are provided. In other words, the R-4 and O zoning regulations were effectively identical. ` To amount to a taking, a property owner must show that rezoning undermine investment back expectations or that the new zoning deprives it of all reasonable use of the property. Compare Beyer v. City of Marathon, 197 So3d 563 (Fla. 3d DCA 2013). " Id.; see also Penn Central Transp. Co. v. City gfAew, York. 98 S.Ct. 2646 (1978). "' See Declaration of Condominium Establishing Babylon Towers, A Condominium as recorded at Book 18463, Page 3005 of the Public Records of Miami -Dade County. The applicant's representative suggests that the City Commission has taken corrective action in multiple instances. A look at her written summary of those instances reveals that the Commissions various discussions on the matter all relate to the same set of circumstances—the zoning history of the Perricone's site and the abutting Allen Morris Park. "` The Perricone's case involved a developer's promise in 1972 to rezone and dedicate a parcel as a park. The City Commission accepted the offer pending the developer's delivery of the legal description for the parcel. He delivered the legal description in 1974. City Staff then accidentally zoned a larger property as park. The error could be corrected in recent years only because the legal description served as clear and undeniable proof of the developer and City Commission's original intent. x Miami 21, Section 7.1.2.8(a)(3) simply does not list successional zoning requirements for changes to or from CS zoning as it does for changes to or from T6 zoning designations. This approach makes sense given that CS zones are intended as park land and parks are compatible with all other zoning designations. xl A copy of the City Staff s report regarding the 2014 application is part of the record. 4 of 4 1"7A AT n1( WEISS SEROTA HELFMAN COLE & BIERMANrf'rl,w