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Thursday, November 20, 2014

2:00 PM

Meeting Minutes

City of Miami

City Hall

3500 Pan American Drive

Miami, FL 33133

www.miamigov.com

City Hall Commission Chambers

City Commission

Tomás Regalado, Mayor

Wifredo (Willy) Gort, Chair

Keon Hardemon, Vice Chair

Marc David Sarnoff, Commissioner District Two

Frank Carollo, Commissioner District Three

Francis Suarez, Commissioner District Four

Daniel J. Alfonso, City Manager

Victoria Méndez, City Attorney

Todd B. Hannon, City Clerk

PLANNING AND ZONING

Meeting Minutes November 20, 2014City Commission

Present: Chair Gort, Commissioner Sarnoff, Commissioner Carollo, Commissioner Suarez and

Vice Chair Hardemon

On the 20th day of November 2014, the City Commission of the City of Miami, Florida, met at its

regular meeting place in City Hall, 3500 Pan American Drive, Miami, Florida, in regular

session. The Planning and Zoning Commission Meeting was called to order by Chair Gort at

5:35 p.m., recessed at 5:39 p.m., reconvened at 6:37 p.m., and adjourned at 9:06 p.m.

ALSO PRESENT:

Victoria Méndez, City Attorney

Daniel J. Alfonso, City Manager

Todd B. Hannon, City Clerk

PART B: PLANNING AND ZONING ITEMS

Chair Gort: I need one more Commissioner. At this time we have to make some announcement.

Yes, ma'am.

Victoria Méndez (City Attorney): I'm going to read the procedures. We'll now begin the

Planning & Zoning items, and I'll state certain procedures to be followed in this portion of the

meeting. P&Z (Planning & Zoning) items shall procedure according to Section 7.1.4 of the

Miami 21 Zoning Code. Before any PZ item is heard, all those wishing to speak will be sworn in

by the City Clerk. Please note, Commissioners have generally been briefed by City staff and the

City Attorney on items on the agenda today. The members of the City Commission shall disclose

any ex parte communications to resume -- to remove the presumption of prejudice, pursuant to

Florida Statute Section 286.0115 and Section 7.1.4(5) in the Miami 21 Zoning Code. Staff will

briefly present each item to be heard. The appellant or petitioner will then present their

application or request to the City Commission. If the applicant agrees with the staff

recommendation and no one from the audience wishes to speak for or against the item, they may

waive the right to an evidentiary hearing. The order of presentation shall be as described in the

City Code and the Miami 21 Code. Members of the public will be permitted to speak through the

Chair for not more than two minutes, unless modified by the Chair. The City of Miami requires

that anyone requesting action by the City Commission must disclose before the hearing anything

provided to anyone for agreement to support or withhold objection to the requested action ,

pursuant to City Code Section 2-8. Any documents offered to the City Commissioners that have

not been provided seven days before the meeting as a part of the agenda materials will be

entered into the record at the City Commission's discretion. And now I believe the Planning

director has some items that are going to be continued.

Chair Gort: Yes, sir, you're recognized.

Francisco Garcia: Thank you, sir. For the record, Francisco Garcia, Planning & Zoning

director. There are from today's Planning & Zoning agenda four items that we would like to

propose be continued. They are as follows: PZ.1 is an alley closure for the Miami Sun plat.

This is proposed to be continued to February 26. The second item, PZ.2: This is a proposed

rezoning for 1410 to 1432 Northeast Miami Place and nearing addresses. This is proposed to be

continued to January 22. And items PZ.3 and 4, so PZ.3 and PZ.4, which are companion items

for a land use change and rezoning at 180 Northeast 50th Street, these two are proposed to be

continued to the meeting of February 26. That's all I have, sir.

Chair Gort: Okay, thank you. The -- Mr. Clerk, you want to swear in the --

Todd B. Hannon (City Clerk): Sir, we're just doing continuances and deferrals at this time, so if

someone wants to make a motion.

City of Miami Printed on 1/15/2015


Chair Gort: Let's have a motion.

Commissioner Carollo: Second.

Vice Chair Hardemon: So moved.

Chair Gort: Vice Chairman Hardemon; second by Commissioner Sarnoff. All in favor, state it

by saying "aye."

The Commission (Collectively): Aye.

Mr. Garcia: Thank you.

Chair Gort: Thank you, Francisco.

Daniel J. Alfonso (City Manager): PH (Public Hearing) --

Mr. Hannon: If we're going back to the regular agenda, then we need to --

Chair Gort: Going back to the regular.

Mr. Hannon: -- recess the Planning & Zoning meeting.

Chair Gort: Okay.

Mr. Hannon: And we just need a minute to flip the tape.

Chair Gort: Okay, are we ready? You have to swear people in.

Mr. Hannon: Good afternoon, ladies and gentlemen. If you'll be speaking on any of today's

Planning & Zoning items, can I please have you stand and raise your right hand?

The City Clerk administered the oath required under City Code Section 62-1 to those persons

giving testimony on zoning issues.

Mr. Hannon: Thank you, Chair.

07-01499ac1

PZ.1 RESOLUTION

A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH

ATTACHMENT(S), CLOSING, VACATING, ABANDONING AND

DISCONTINUING FOR PUBLIC USE NORTH/SOUTH AND EAST/WEST

ALLEYS LOCATED BETWEEN NORTH MIAMI AVENUE AND NORTHWEST

MIAMI COURT FROM NORTHWEST 20TH STREET TO APPROXIMATELY

215 FEET NORTH OF NORTHWEST 20TH STREET, MIAMI, FLORIDA.

07-01499ac1 Fact Sheet.pdf

07-01499ac1 Analysis & Color Maps.pdf

07-01499ac1 Application & Supporting Docs.pdf

07-01499ac1 Legislation (v2).pdf

07-01499ac1 Exhibit A.pdf

LOCATION: Between N Miami Avenue and NW Miami Court from NW 20th

Street to Approximately 215 Feet North of NW 20th Street [Commissioner Marc

David Sarnoff - District 2]


http://egov.ci.miami.fl.us/Legistarweb/Attachments/78068.pdf






APPLICANT(S): Miguel Diaz de la Portilla, Esquire and Elinette Ruiz, Esquire,

on behalf of Southern Waste Systems, Ltd.

FINDING(S):

PLANNING AND ZONING DEPARTMENT: Recommended approval.

PUBLIC WORKS DEPARTMENT: Recommended approval.

PLAT AND STREET COMMITTEE: Recommended approval on February 6,

2014 by a vote of 6-0.

PLANNING, ZONING AND APPEALS BOARD: Recommended denial to City

Commission on March 5, 2014 by a vote of 5-2.

PURPOSE: The alley closures and unification of the site will enable a modern

and clean recycling/processing center to be constructed and reduce the amount

of material otherwise deposited in landfills.

Motion by Vice Chair Hardemon, seconded by Commissioner Sarnoff, that this matter be

DEFERRED PASSED by the following vote.

Votes: Ayes: 3 - Commissioner(s) Gort, Sarnoff and Hardemon

Absent: 2 - Commissioner(s) Carollo and Suarez

Note for the Record: Item PZ.1 was deferred to the February 26, 2015 Planning and Zoning City

Commission Meeting.

14-00054zc

First ReadingPZ.2 ORDINANCE

AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH

ATTACHMENT(S), AMENDING THE ZONING ATLAS OF ORDINANCE NO.

13114, AS AMENDED, BY CHANGING THE ZONING CLASSIFICATION FROM

"T6-24-O" URBAN CORE ZONE-OPEN TO "T6-36A-O" URBAN CORE

ZONE-OPEN, FOR THE PROPERTIES LOCATED AT APPROXIMATELY 1410,

1420, 1424, AND 1432 NORTHEAST MIAMI PLACE; 1415, 1421, 1425, 1433,

AND 1445 NORTHEAST MIAMI COURT; AND 47, 55, AND 67 NORTHEAST

14TH STREET, MIAMI, FLORIDA; MAKING FINDINGS; CONTAINING A

SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE.

14-00054zc FR Fact Sheet.pdf

14-00054zc Analysis, Maps & PZAB Reso.pdf

14-00054zc Application & Supporting Documents.pdf

14-00054zc Legislation (v3).pdf

14-00054zc Exhibit.pdf

LOCATION: Approximately 1410, 1420, 1424, and 1432 NE Miami Place;

1415, 1421, 1425, 1433, and 1445 NE Miami Court; and 47, 55, and 67 NE

14th Street [Commissioner Marc David Sarnoff - District 2]

APPLICANT(S): Iris Escarra, Esquire, on behalf of 14th Plaza Corporation

FINDING(S):

PLANNING AND ZONING DEPARTMENT: Recommended denial.

PLANNING, ZONING AND APPEALS BOARD: Motion to approve with

conditions failed on March 5, 2014, by a vote of 3-5, thus constituting a denial.








PURPOSE: This will change the above properties from "T6-24-O" to

"T6-36A-O". Item does not include a covenant.





Note for the Record: Item PZ.2 was deferred to the January 22, 2015 Planning and Zoning City

Commission Meeting.

13-00865lu



ATTACHMENT(S), AMENDING ORDINANCE NO. 10544, AS AMENDED, THE

FUTURE LAND USE MAP OF THE MIAMI 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 AT APPROXIMATELY 180

NORTHEAST 50TH STREET, MIAMI, FLORIDA, FROM "MEDIUM DENSITY

MULTIFAMILY RESIDENTIAL" TO "MEDIUM DENSITY RESTRICTED

COMMERCIAL"; MAKING FINDINGS; DIRECTING TRANSMITTALS TO

AFFECTED AGENCIES; CONTAINING A SEVERABILITY CLAUSE AND

PROVIDING FOR AN EFFECTIVE DATE.

13-00865lu FR Fact Sheet.pdf

13-00865lu Analysis & Color Maps.pdf

13-00865lu PZAB Reso.pdf

13-00865lu FR/SR Application & Supporting Docs.pdf

13-00865lu CC Legislation (Version 3).pdf

13-00865lu Exhibit A.pdf

LOCATION: Approximately 180 NE 50th Street [Commissioner Keon

Hardemon - District 5]

APPLICANT(S): Ben Fernandez, Esquire, on behalf of Douglas Gardens

Holding Corp.

FINDING(S):


PLANNING, ZONING AND APPEALS BOARD: Recommended approval to City

Commission on October 16, 2013 by a vote of 5-2. See companion File ID

13-00865zc.

PURPOSE: This will change the above properties from "Medium Density

Multifamily Residential" to "Medium Density Restricted Commercial".














Commission Meeting.

13-00865zc





"T4-R" GENERAL URBAN ZONE-RESTRICTED TO "T4-L" GENERAL URBAN

ZONE-LIMITED, FOR THE PROPERTY LOCATED AT APPROXIMATELY 180

NORTHEAST 50TH STREET, MIAMI, FLORIDA; MAKING FINDINGS;

CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN

EFFECTIVE DATE.


13-00865zc Analysis & Color Maps.pdf

13-00865zc PZAB Reso.pdf

13-00865zc FR/SR Application & Supporting Docs.pdf

13-00865zc CC Legislation (Version 3).pdf

13-00865zc Exhibit A.pdf



APPLICANT(S): Ben Fernandez, Esquire, on behalf of Douglas Gardens

Holding Corp.

FINDING(S):


PLANNING, ZONING AND APPEALS BOARD: Recommended approval with

modifications* to City Commission on October 16, 2013 by a vote of 6-1. See

companion File ID 13-00865lu.

*See supporting documentation.

PURPOSE: This will change the above property from "T4-R" to "T4-L". Item

includes a covenant.






Commission Meeting.

14-00053lu



ATTACHMENT(S), AMENDING ORDINANCE NO. 10544, AS AMENDED, THE

FUTURE LAND USE MAP OF THE MIAMI COMPREHENSIVE

NEIGHBORHOOD PLAN, PURSUANT TO SMALL SCALE AMENDMENT

PROCEDURES SUBJECT TO §163.3187, FLORIDA STATUTES, BY









CHANGING THE FUTURE LAND USE DESIGNATION OF THE ACREAGE

DESCRIBED HEREIN OF REAL PROPERTY AT APPROXIMATELY 622

NORTHEAST 80TH STREET, MIAMI, FLORIDA, FROM "MEDIUM DENSITY

MULTI-FAMILY RESIDENTIAL" TO "RESTRICTED COMMERCIAL"; MAKING

FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES;

CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN

EFFECTIVE DATE.

14-00053lu SR Fact Sheet.pdf

14-00053lu Analysis, Maps & PZAB Reso.pdf

14-00053lu Application & Supporting Documents.pdf

14-00053lu Legislation (v2).pdf

14-00053lu Exhibit.pdf



APPLICANT(S): Tony Recio, Esquire, on behalf of Pier Real Estate II, LLC

FINDING(S):


PLANNING, ZONING AND APPEALS BOARD: Recommended approval on

March 19, 2014, by a vote of 7-4. See companion File ID 14-00053zc.

PURPOSE: This will change the above property from "Medium Density

Multi-Family Residential" to "Restricted Commercial".


PASSED ON FIRST READING PASSED by the following vote.



Chair Gort: All yours.

Francisco Garcia (Director, Planning & Zoning): Thank you, sir. Just to remind everyone here

present, items PZ.1, PZ.2, PZ.3, and PZ.4 have been continued to dates certain. You may inquire

from the City Clerk's Office exactly what those dates are. We can then, Mr. Chair, pick it up on

PZs 5 and 6 --

Chair Gort: Yes.

Mr. Garcia: -- if you'd like, which are companion items. These are a land use change and

zoning change proposal for the property at 622 Northeast 80th Street. This is before you on first

reading. And this item is being recommended to you for approval by the Planning & Zoning

Department. The Planning, Zoning & Appeals Board heard the land use proposal -- the land use

change proposal and recommended approval by a vote of 7-4. However, on the zoning change

proposal, they recommended denial. Originally, it was a recommendation for approval.

However, it failed to obtain a majority. It failed 4-7; thus, constituting a recommendation for

denial. It is before you today. Again, our recommendation for approval rests on the fact that the

subject property is bounded to the north, to the east, and to the south by restricted commercial

land use designation on the land use side; however, on the zoning side, the pattern changes a bit,

and it is bounded only on the north and the east by the higher zoning, which is T6-8-O. I'll yield

to the applicant for presentation and stand by to answer any questions you may have .








Chair Gort: Yes, sir, you're recognized.

Tony Recio: Good evening, Mr. Chair, members of the Commission. For the record, my name is

Tony Recio, with law office at 2525 Ponce de Leon Boulevard, in Coral Gables. I'm very happy

to be here before you today on Pierre Investments. This application has been pending for quite

some time. Last time we were here, the district Commissioner, Commissioner Hardemon,

requested that we meet with some of our neighbors; we did. We had those meetings, and we

continued some dialogue with them, and I'll get into that in a moment. Actually, before I present,

I wanted to know if it is the will of this Commission for me to give a truncated presentation ,

because it is a late hour, and I'm happy to do that. I'm happy to work with you all.

Vice Chair Hardemon: Please.

Chair Gort: Yes, sir.

Mr. Recio: All right, I will be very, very --

Chair Gort: We want you to earn your fee.

Mr. Recio: I'm going to hit the highlights. As Mr. Garcia explained, this property is bounded on

the north, west and south by commercial comprehensive plan designation. This property is

situated right here just off of the activity note of 79th and Biscayne Boulevard. You see all this

red. This red is commercial. It is commercial comprehensive plan designation. This area that is

lined in this is a neighborhood that is cut off from the rest of Shorecrest by a barrier at this

location and a barrier at this location. This area is actually zoned T5. It's comprehensive plan

designated for medium density residential, so it's different from the rest of this, and it's actually

cut off and separate. This particular parcel has commercial zoning and comprehensive plan

over here. Commercial development over here, commercial development over here; shares a

service alley on two sides, so you're talking about noise, you're talking about, you know, garbage

pickup at different hours, you're talking about deliveries. All the things that are associated with

commercial, this is hit by that on two different sides, okay. It's currently a vacant lot. If you look

at the zoning, it's actually got T6-8 zoning here, T6-8 zoning here, and then this is what they call

T5-O zoning, so it's still commercial along here, but it is at a T5 level as opposed to a T6 level.

As you can see, if you go further north and further south, this T6-8 line actually extends much

further to the east; everywhere else, except here, which is a weird situation. It's an odd situation,

especially when you consider that unlike these properties up here, which don't have service

alleys, don't share service alleys with existing commercial, are immediately next to single family

and actually have streets that connect into Shorecrest. This doesn't have any -- this is the

opposite. This has service alleys. The street does not connect. There's a physical barrier that

prevents vehicular traffic, and it's actually abutting what is T5 already, what is five stories

already. Okay, staff is recommending approval of this application. They've been recommending

approval since day one. As I said, we had met with the neighbors to discuss this. This was back

in May. We had several conversations after that. Mr. Jett from Shorecrest was a perfect

gentleman, but -- although -- we had a meeting. We had about 20 people show up. There were

about 20 different opinions as to what should be done, so we couldn't get on the same page with

him. I don't know if any of them are here tonight. I don't think so, but to the extent that there

are, I would ask for just a chance to speak after they speak. But I do believe that this is a

positive application. After speaking with them, we went through all the different scenarios. It

turns out we think that the original request is the best request, and it actually fits with what is

directly across the street from us. Miami 21 has all kinds of protections in place to guide

development. It's the same development that would occur here. It would simply occur here on

this location. That's pretty much what I wanted to walk you through. If you have any questions,

I'm here to answer them. And I hope that you can support this application on first reading . We'd

have to come back before you on second.



Chair Gort: Thank you. Did you read the -- Francisco, 5 and 6?

Mr. Garcia: Yes, sir. I've read both of them together.

Chair Gort: 'Cause this public hearing is for both 5 and 6. Okay, is anyone in the public would

like to address any of these issues? Anyone in the public? Seeing none, hearing none, we close

the public hearings. Commissioner.

Vice Chair Hardemon: Thank you very much. In reference to PZ.5, of course, the one thing that

the residents are usually mostly worried about is spot zoning, right. So this is a situation where

there is restricted commercial use that is to the north of it, to the south of it, and to the west of it;

medium density, multifamily residential merely to the east of it. And so in considering the way

that -- for PZ.5, the way that this is set out, I don't have a problem moving to pass PZ.5 as it

states before us today, especially considering the approval from the PZAB (Planning, Zoning &

Appeals Board) and also from staff. There doesn't appear in this situation to do -- it doesn't

appear in this situation to do anything other than really straighten out that line that you have

from Biscayne Boulevard east to parcels where it's west of the medium density multifamily

residential, which is just south of Northeast 80th Street towards -- so as far as PZ.5 --

--

Mr. Recio: Understood.

Vice Chair Hardemon: -- the way that I see it, I move to approve it.

Chair Gort: Okay, it's a motion. Is there a second?

Commissioner Sarnoff: Second under this unique circumstance.

Chair Gort: Okay, it's been moved, second. Any further discussion? An ordinance.

The Ordinance was read by title into the public record by Deputy City Attorney Barnaby Min.

Todd B. Hannon (City Clerk): Roll call on item PZ.5. Commissioner Sarnoff?

Commissioner Sarnoff: Reluctantly, yes, but under these compelling and unique circumstances.

Mr. Hannon: Vice Chair Hardemon?

Vice Chair Hardemon: That sounds so amazing on -- when you read it on a sheet of paper, but

I'll just say "for."

Mr. Hannon: Chair Gort?

Chair Gort: Yes.

Mr. Hannon: The ordinance passes on first reading, 3-0.

14-00053zc





"T5-R" URBAN CENTER ZONE - RESTRICTED TO "T6-8-O" URBAN CORE

ZONE-OPEN, FOR THE PROPERTY LOCATED AT APPROXIMATELY 622

NORTHEAST 80TH STREET, MIAMI, FLORIDA; MAKING FINDINGS;



CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN

EFFECTIVE DATE.


14-00053zc Analysis, Maps, & PZAB Reso.pdf

14-00053zc Application & Supporting Documents.pdf





APPLICANT(S): Tony Recio, Esquire, on behalf of Pier Real Estate II, LLC

FINDING(S):


PLANNING, ZONING AND APPEALS BOARD: Motion to approve failed on

March 19, 2014, by a vote of 4-7, thus constituting a denial. See companion

File ID 14-00053lu.

PURPOSE: This will change the above property from "T5-R" to "T6-8-O". Item

includes a covenant.

Motion by Vice Chair Hardemon, seconded by Commissioner Carollo, that this matter be


Votes: Ayes: 5 - Commissioner(s) Gort, Sarnoff, Carollo, Suarez and Hardemon


Commission Meeting.

Note for the Record: Please see Item PZ.5 for minutes referencng Item PZ.6.

Chair Gort: RE.6 [sic].

Tony Recio: As to PZ.6, the presentation is essentially the same. This is -- we're seeking T6-8

zoning. We have T6-8 directly to the north of us, directly to the west of us, and we've got

commercial down here. So in any event, the “O” is here, here, and here. The T6-8, as you can

see along this line is -- it is -- it extends much further east than we are. It's all the same reasons

that I went through before. I'm happy to answer any questions that you may have and address

those.

Vice Chair Hardemon: Now in this situation, you find yourself in a predicament as a just bit -- a

bit more troubling for me --

Mr. Recio: Okay.

Vice Chair Hardemon: -- because T6-8-O is a bit more intensive than the use that is to -- find it.

Mr. Recio: To the east.

Vice Chair Hardemon: -- to the -- yes, to the east. And then -- so now we're talking about taking

T6-8-O, it's also more intensive than the use to the south of it. Now, besides that little parcel

that's not highlighted -- there's a little parcel of land that appears -- or is that the street.

Mr. Recio: Here?








Vice Chair Hardemon: To the north of the property.

Mr. Recio: To the north, this parcel.

Vice Chair Hardemon: There's -- between the T6-8-O --

Mr. Recio: Yeah.

Vice Chair Hardemon: -- and what you're proposing, there's a little parcel of land.

Mr. Recio: This is the street.

Vice Chair Hardemon: That is a street?

Mr. Recio: Yeah, yeah.

Vice Chair Hardemon: That is a street; that's what I thought.

Mr. Recio: This is 80th Street that has the dead end barrier.

Vice Chair Hardemon: So here in this situation, I can't -- and I know that the community has

been in an uproar about having T6-8-O directly abut the T5-R properties, and so here, you find

yourself in a much more difficult situation, so I'm more inclined to vote “no” on this type of

situation, which then would put you in a predicament where it would fail, all of the project,

because you won't be able to do what you're trying to do --

Mr. Recio: Correct.

Vice Chair Hardemon: -- as I understand it, right? And you find yourself between T6-8-O and

T5-R, which is kind of like a rock in a hard place.

Mr. Recio: Yes.

Vice Chair Hardemon: So what I -- the things that I thought about in that situation, with the help

of staff, to draft some type of creative solution to this is considering maybe something like a

T5-O, which is T5, which is where it is now, but “O,” so it has some of the same type of -- as far

as the height of the building as -- is -- to its neighbors to the east of it.

Mr. Recio: May I propose a -- maybe a variance on that?

Vice Chair Hardemon: You can say whatever you like.

Mr. Recio: T5 is five stories maximum.

Vice Chair Hardemon: Yes.

Mr. Recio: Under Miami 21, you can have up to a 14-foot-high story, so each floor can be 14

feet high. So the maximum height that you can get in T5, 14 times 5 would be 70 feet. That's the

cap, right? If we were to, between first and second reading, perhaps, come back to you with a

covenant that despite a T6-8-O zoning, we would cap the height at 70 feet, so that is exactly what

we would do here. That would allow us to get at least a six-story to basically -- to be able to

accommodate parking all on site. That would really help us out a lot of in terms of development

in actually developing this parcel. So it would be -- the concept is T6-8-O zoning just to allow

the number of floors, but a maximum height imposed by covenant, recorded against the property



for the same height that you could achieve on T5 at 70 feet.

Vice Chair Hardemon: Well, you know, in this situation, I know the height of the building has

been much of the concern, so what you're saying to me is the height will be the same or at least

the maximum use of the T5-O.

Mr. Recio: Correct

Vice Chair Hardemon: And it would allow you to put the parking inside. I'm not sure exactly

how that works, so I would love to hear from staff how that works. And then -- and also, I want

to hear what the past Commissioner for that area would like to say about this situation , because I

know this community is dear to your heart also. I just want to make sure we're making the right

decision for the residents.

Mr. Garcia: So there are two -- thank you, Commissioner, for the opportunity. There are two

issues to consider, and Mr. Recio has identified one, which happens to be the height. The other

one -- and this should be put on the record -- has to do with density. So the change to T6-8-O

increases the density from what T5 provides for, which is 65 units per acre; in T6-8-O, you would

have 150 units per acre, so there's a significant density increase for residential uses. That's one

issue to be considered. In terms of the height, in fact, Mr. Recio is correct in saying that T6-8-O

would allow on this site up to 12 stories; T5, of course, allows only five, and there is no interim

transect zone. And what he's proposing is perhaps worthy of consideration, and it would have

the effect of capping the height, if they were to proffer a covenant as he suggested, capping the

height at 7 stories, which would be the equivalent of the roughly 70 feet they could otherwise

obtain. I'll add, because I think it's significant, that these covenants typically are phrased so that

any amendment to the covenant would be brought back to the Commission itself. So it does

provide the sort of security that nothing beyond 7 stories could be built. And if that were to be

the pleasure of the Commission, then this is something that we would certainly seek the input

from the affected property owners because they have been involved in the past as well.

Vice Chair Hardemon: And Mr. Chairman.

Chair Gort: Yes, go ahead.

Vice Chair Hardemon: And -- you know, what came to mind -- I use the word -- when -- as he

spoke, “intensity,” which is the density. This will be the equivalent of that in saying that the

height, of course, corresponds with the number of people who will be allowed to reside, if there

was someone residing in that building, or the use of that structure. And I'm sure, although those

representatives of that community are not here today, that they will still be concerned with the

use going from -- if it's 16 or so units per square -- what was it?

Mr. Garcia: Square -- per acre. Units per acre.

Vice Chair Hardemon: Per acre. -- to more than 120, so those are big concerns for me. And the

people who live there have to live there. And long after your representation ends, they will be

there and they will be here. And so it is most important to me to ensure that the people who are

in that community are happy with the representations that are being made by myself in reference

to the properties that are just around them and especially where -- what you've said to me is that

you've had an opportunity to speak with them, but I haven't heard any major agreement that's

been made. So what it tells me is that there needs to be some type of mediation. And any time

we mediate, the question is, is it a better -- is it a benefit to the community or is it a benefit to the

developer or whoever the applicant is? And many times, I believe -- and especially as

Commissioners, we should always lean towards the benefit to the community, so -- but I'm

always open for compromise, but the compromise has to be good.



Mr. Recio: Sure.

Vice Chair Hardemon: So in this community, Commissioner Sarnoff, you've spent quite a lot of

-- a number of time in this community dealing with these types of issues, so just what's your input

on this?

Commissioner Sarnoff: I heard something that piqued my curiosity, Mr. Recio, which is you said

that you would keep all the parking -- I don't know if you said on the site, which you'd have to do

anyways, but did you mean to say within the building?

Mr. Recio: Yeah. It would have to be within the building, yes. Yes.

Commissioner Sarnoff: So you're --

Mr. Recio: But -- I'm sorry. If I may? When I say “onsite,” there are provisions in the Miami

21 which allow for offsite parking. We don't -- that's not a scenario that we think will work here,

not on this street. We want to keep it all onsite. So that's why we would want the additional

floors to be able to fit that parking onto the site. And when we talk about the number of units --

Commissioner Sarnoff: Well, when you say --

Mr. Recio: I'm sorry.

Commissioner Sarnoff: But, no, that's all right. When you say that, that indicates to me you' re

keeping the parking within the drip line of the building.

Mr. Recio: Yes, within the building. Yes.

Commissioner Sarnoff: You could do that with what you propose? I mean, you have enough

space to do that with the required parking requirement?

Mr. Recio: In terms of our lot coverage?

Commissioner Sarnoff: Yes.

Mr. Recio: Yeah, yeah. We would have to be creative about how we do it, you know, vehicular

lifts and doors and those kinds of things, because it is small site. But yes, we can do that.

Commissioner Sarnoff: And I don't mean to debate you. I'm just having a little trouble

fathoming this, which is that --

Mr. Recio: Sure.

Commissioner Sarnoff: -- you're going to go to a -- you said a 70-story building. You're going

to put -- I don't remember how many floors you said you put there, but --

Mr. Recio: No, no. Seventy feet.

Commissioner Sarnoff: (UNINTELLIGIBLE) feet. I'm sorry; 70 feet. And you're going to put

how many floors in there?

Mr. Recio: Either six or seven, depending on how --

Commissioner Sarnoff: So six or seven.



Mr. Recio: -- the heights work out.

Commissioner Sarnoff: How many units per floor?

Mr. Recio: Well, residential units were capped -- if -- even under T6-8, we're capped at 23 total

units for the building --

Commissioner Sarnoff: So you're --

Mr. Recio: -- which is not a big building.

Commissioner Sarnoff: -- 23 parking spaces, right?

Mr. Recio: Twenty -- 1.5 times 23, so you're talking about thirty-some spaces.

Commissioner Sarnoff: So thirty-something spaces. And how -- well, how big is your lot? Is it

an acre, an acre and a half?

Mr. Recio: No, it is not.

Chair Gort: It's very small.

Commissioner Sarnoff: Yeah.

Mr. Recio: It's very small.

Commissioner Sarnoff: I'm just curious how he's going to keep better than 40 or 45 -- I'm

thinking you're going to have some retail. How are you going to keep 40 -- let's just say it's 40.

How many -- how are you going to keep 40 cars --?

Mr. Recio: That may limit the -- what we can put in terms of the uses. In terms of the parking --

the parking, will limit what the uses are on the site, in any event.

Commissioner Sarnoff: Then let me just say this to my colleague. If they can keep their parking

inside their building --

Chair Gort: Yeah.

Commissioner Sarnoff: -- I'm all in favor of that.

Chair Gort: Now, let me ask you a question. My understanding is you need the initial -- this

change of zoning to provide the parking underneath.

Mr. Recio: We need the change of zoning to provide a mix of uses.

Chair Gort: Mix of uses.

Mr. Recio: Yeah, not --

Chair Gort: But the parking --

Mr. Recio: But the parking assists us -- the extra floors is what we need to provide -- to be able

to fit the parking in there.

Chair Gort: Okay.



Vice Chair Hardemon: Is -- some of the things that stood out to me. One, there's skepticalness

[sic], right. You've seen a lot of buildings built within your community as far as -- that are very

tall because you've been here and you've had the boom that we've had downtown and in some

other areas in the Upper Eastside The word that you said that struck the -- a cord to me was

“creative” --

Mr. Recio: Yeah.

Vice Chair Hardemon: -- and that's scary because -- and when you say “creative,” that means

that it's not something that is normally done; that it's outside the box. And it's not as if you come

today with a plan that actually shows that it can be done. So when you say “creative” to me, it

says -- it's an alarm in my mind that says that it can be done, and the record won't reflect that I

tilted my head to the right and grinned my teeth to show that you were skeptical, if it can -- well,

I don't want to say that, because I don't want to put that on the record for you.

Mr. Recio: Thank you.

Vice Chair Hardemon: But that I am skeptical, rather, that that is something that can be

achieved and that, merely, we're trying to find a way to get you to the two “T” -- well, to the

allowable floors for T6-8-O or the allowable density for a T6-8-O, 'cause that's the goal. You

want T6-8-O; it provides you greater density, greater use.

Mr. Recio: Yes, yes, but it's not even to max out the T6-8-O, because we couldn't put 8 floors or

even 12 with the bonuses in 70 feet. What we'd like to do is get above 5 within those 70 feet. Get

to six or seven so that we can have -- we can actually dedicate two of those floors to parking with

liners, with habitable liners, and then we can actually have some uses above that.

Vice Chair Hardemon: Yeah. It kind of alarms me. It reminds me of like a -- if everyone has

seen like those boxes, those plastic boxes that you put sandwiches in. If you stack them up with

bread, you can comfortably fit two slices of bread in it, but you can also fit five. It's just that you

squish all the bread and compact it into something, and that's what I'm afraid of. I'm afraid of

we're trying to pack so much into this small site that it would be something that the community

who's just around it would object to. So I -- at this point, I'm not necessarily comfortable with

doing that. And we have options. I mean, we can have the community have an opportunity to

come speak on this issue. Maybe there is something that they -- maybe they agree to something

like that, but maybe they don't. But I'm inclined today to make it T5-O. We have the ability to

actually come down on the zoning; can't increase it, but we can bring it to a T5-O, which is in

line with what is immediately to the east of this structure, which is a T5-R, the residential area.

It's in line with that. And I think that is a better fitting, necessarily, for the community at that

point.

Commissioner Sarnoff: Commissioner, can I make recommendation, and you can make it very

clear that you're only considering this for this purpose, but would you be at least willing to come

back with a building design to show us what that covenant looks like?

Mr. Recio: Yes, we could do that.

Commissioner Sarnoff: So that we could see what -- by the way, kind of a cool thing to do would

be, “Commissioner, this is what a T5-O would look like” --

Mr. Recio: Sure.

Commissioner Sarnoff: -- “with parking exterior.” This is what a T6 with this covenant would

look like.



Mr. Recio: Internal.

Commissioner Sarnoff: And then he has a real choice to make for the neighborhood, and that's

-- I got to tell you, keeping a building that has its stored parking inside is a much sleeker

building.

Mr. Recio: Yeah.

Chair Gort: Let me ask a question.

Vice Chair Hardemon: And I'm assuming that he's going to do that, because the question is are

you going to do it? And when you say “creative,” sometimes creativity, you say -- we thought

we could do it, but we can't.

Chair Gort: Let me ask a question. Wait a minute. First reading, you can pass -- it's certain

zoning; and second reading, as long as below that one, you can also change it, right?

Mr. Min: That's correct.

Chair Gort: Okay. So the alternatives here is you can make the motion for T6-8 at this time.

Let him get to the community. Let him come to us and -- on second reading, and you can always

bring it down on the second reading (UNINTELLIGIBLE) not in comply with.

Commissioner Sarnoff: It's a way of getting a peek at what he has --

Chair Gort: It's a compromise.

Commissioner Sarnoff: -- in store.

Vice Chair Hardemon: No, no, I understand. I understand. I just want -- go ahead.

Mr. Garcia: And Commissioner, if I may. We will certainly accept direction and, frankly,

(UNINTELLIGIBLE) we'll accept it to reach back out to the community and put before them all

the options that were considered here today and seek their feedback prior to coming back to you.

Vice Chair Hardemon: You know, part of my -- when the story is told, when the story is told, the

phone call that I receive from the community is “he passed it.” They don't understand the

details that we speak of. They don't get the -- it was only because of this or that. They don't get

the record where Commissioner Sarnoff so eloquently explained his support of the project for the

PZ.5 in the way that he did it. It doesn't -- it's not reflected in their mind. All they hear is that it

passed. So I can continue this item just -- this PZ.6, but I'm not going to just move it and pass it

on first reading because it's -- in lieu of time, I'm not going to do that. So I can move to continue

this to be heard at the time that PZ.5 comes up for second hearing, but it'll still be on first

reading.

Mr. Recio: Okay. If I may, may I ask that that happen -- to give us time to develop the plan, if I

could just push it to January? Because I know with the holidays, it will be tough to --

Vice Chair Hardemon: This is not -- will this be heard in December? It won't be heard in

December.

Mr. Garcia: No, sir, and especially not if you continue, which you certainly can do, PZ.6; then

we will certainly make sure that both items come back to you together either in January or

February, as you see fit.



Mr. Recio: And just one thing I would like to make clear for the record. When I said “creative,”

I -- it's not something that's never been done before. It's done on Miami Beach all the time.

That's just what I meant.

Vice Chair Hardemon: Okay.

Mr. Recio: It's not unheard of --

Chair Gort: Our day.

Mr. Recio: -- what we're proposing.

Vice Chair Hardemon: So I move as indicated earlier.


Chair Gort: Okay, it's been move and second. Any further discussion? Being none --

Mr. Hannon: Excuse me. Chair, my apologies. Vice Chair, are you moving it to a date specific

in January or February?

Vice Chair Hardemon: No, I'm not. I'm just deferring it.

Mr. Hannon: We --

Vice Chair Hardemon: I'm sor -- to -- not to a date certain -- well. I'm sorry. I apologize. I will

state it as so. I want to defer it to the same date that PZ.5 will be heard.

Mr. Min: Which should be the second meeting in January.

Mr. Hannon: Just for the record, that'll be January 22.

Mr. Min: And if I could also just clarify, Mr. Recio, if you are going to propose a restrictive

covenant, you can provide us with a draft prior to that hearing so both the Planning Department

and also the City Attorney's Office would have the opportunity to vet it?

Mr. Recio: Certainly.

Mr. Min: Thank you.

Mr. Recio: Certainly.

Chair Gort: Okay, it's an ordinance.

Commissioner Sarnoff: No, no.

Mr. Min: It's a motion to defer.

Commissioner Sarnoff: It's a motion to defer.

Chair Gort: Oh, you didn't pass it. Okay. Any further discussion on the motion? Being none,

all in favor, state it by saying "aye."




Mr. Recio: Thank you all. Have a great evening.

Chair Gort: Thank you.

14-00963zc

Second ReadingPZ.7 ORDINANCE




T5-O "URBAN CENTER TRANSECT ZONE-OPEN" TO T6-8-O "URBAN CORE

TRANSECT ZONE-OPEN," FOR THE PROPERTIES LOCATED AT

APPROXIMATELY SOUTHWEST 1ST STREET BETWEEN SOUTHWEST

13TH AVENUE AND SOUTHWEST 17TH AVENUE, MIAMI, FLORIDA; AND BY

CHANGING THE ZONING CLASSIFICATION FROM T4-L "URBAN GENERAL

TRANSECT ZONE-LIMITED" TO T5-L "URBAN CENTER TRANSECT

ZONE-LIMITED," FOR THE PROPERTIES LOCATED AT APPROXIMATELY

SOUTHWEST 2ND STREET BETWEEN SOUTHWEST 13TH AVENUE AND

SOUTHWEST 17TH AVENUE, MIAMI, FLORIDA; MAKING FINDINGS,

CONTAINING A SEVERABILITY CLAUSE, AND PROVIDING FOR AN

EFFECTIVE DATE.

14-00963zc SR Fact Sheet.pdf

14-00963zc Analysis, Maps & PZAB Resolution.pdf



LOCATION: Approximately SW 1st Street between SW 13th Avenue and SW

17th Avenue; and SW 2nd Street between SW 13th Avenue and SW 17th

Avenue [Commissioner Frank Carollo - District 3]

APPLICANT(S): Daniel J. Alfonso, City Manager, on behalf of the City of Miami

FINDING(S):


PURPOSE: This will change the zoning classification from "T5-O" to "T6-8-O"

for the properties located at approximately SW 1st Street between SW 13th

Avenue and SW 17th Avenue; and from "T4-L" to "T5-L" for the properties

located at approximately SW 2nd Street between SW 13th Avenue and SW

17th Avenue. Item does not include a covenant.

Motion by Commissioner Carollo, seconded by Commissioner Suarez, that this matter be

ADOPTED PASSED by the following vote.


13490

Chair Gort: PZ.7.

Tony Recio: And a very Happy Thanksgiving.







Francisco Garcia (Director, Planning & Zoning): Item PZ.7 is a -- it's an item proposed by your

Administration, by the City of Miami City Manager's Office. This is before you on second

reading, and it is a proposed rezoning for the Southwest 1st Street and Southwest 2nd Street

corridors between 13th and 17th Avenues. The proposal before you seeks to rezone the

Southwest 1st Street corridor from T5-O to T6-8-O and the Southwest 2nd Street corridor from

T4-L to T5-L, again between 13th Avenue and 17th Avenue; before you on second reading. And

I'll -- happy to answer any questions you may have.

Commissioner Carollo: So move.

Chair Gort: It's been moved by Commissioner --

Commissioner Suarez: Second.

Chair Gort: -- Carollo. Is there a second?


Commissioner Carollo: Discussion.

Chair Gort: Second by Commissioner Suarez. Discussion.

Commissioner Carollo: I want to make sure that the record reflects it's not here, I think -- I guess

it was a typo -- that the PZAB (Planning, Zoning & Appeals Board) Board voted unanimously in

favor of this. Is that correct?

Mr. Garcia: That is correct, sir, and thank you for reminding me. The Planning, Zoning &

Appeals Board, on their meeting of October 15, considered this item and voted unanimously,

10-0, to recommend approval for this item.

Chair Gort: Okay.

Barnaby Min (Deputy City Attorney): Do you want to open it to the public?

Chair Gort: We open the public hearing. Is anyone in the public would like to address PZ.7?

Seeing none, hearing none, it's closed.

The Ordinance was read by title into the public record by Deputy City Attorney Barnaby Min.

Todd B. Hannon (City Clerk): Roll call on item PZ.7.

A roll call was taken, the result of which is stated above.

Mr. Hannon: The ordinance passes on second reading, 5-0.

14-00515zt

Second ReadingPZ.8 ORDINANCE

AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING

ORDINANCE NO. 13114, THE ZONING ORDINANCE OF THE CITY OF

MIAMI, MORE SPECIFICALLY BY MODIFYING ARTICLE 7, SECTION

7.1.1.4(d)(4), ENTITLED "PLANNING, ZONING, AND APPEALS BOARD",

SUBSECTION (D)(4), ENTITLED "PROCEEDINGS OF THE BOARD", TO

PROVIDE THAT TO APPROVE CERTAIN ACTIONS, OR TO RECOMMEND

APPROVAL OF CERTAIN ACTIONS, AS SPECIFIED BELOW, THE



CONCURRING VOTES OF A SUPERMAJORITY OF BOARD MEMBERS,

WHICH CONSISTS OF ONE (1) MORE MEMBER THAN A SIMPLE

MAJORITY, BE REQUIRED; CONTAINING A SEVERABILITY CLAUSE AND

PROVIDING FOR AN EFFECTIVE DATE.

14-00515zt SR Fact Sheet.pdf

14-00515zt PZAB Reso.pdf

14-00515zt Legislation (v2) .pdf

APPLICANT(S): Daniel J. Alfonso, City Manager, on behalf of the City of Miami

FINDING(S):

PLANNING DEPARTMENT: Recommended approval.

PLANNING, ZONING AND APPEALS BOARD: Recommended approval on

September 3, 2014, by a vote of 8-0.

PURPOSE: This will make Miami 21 consistent with Chapter 62, and provides

that to approve, or to recommend approval of certain actions, the concurring

votes of a supermajority of board members, which consists of one more

member than a simple majority, be required.

Motion by Commissioner Carollo, seconded by Commissioner Suarez, that this matter be


Votes: Ayes: 4 - Commissioner(s) Gort, Sarnoff, Carollo and Suarez

Noes: 1 - Commissioner(s) Hardemon


Commission Meeting.

Chair Gort: PZ.8.

Francisco Garcia (Director, Planning & Zoning): Thank you, sir. Item PZ.8 is an amendment to

Miami 21. This is pertaining to the voting requirements for the Planning, Zoning & Appeals

Board. It is before you on second reading, and it is filed as an application by the City

Administration. I wanted to insert a note that I hadn't done before. This comes about as a result

of some questions we received in the briefing process, and I want to make it clear that this is to

realign Miami 21, your Zoning Ordinance, with provisions already stated clearly in the City

Code; and I would like, for purposes of clarity, to refer to City Code Section 62-17, titled

“Proceedings of Planning, Zoning & Appeals Board,” and referring specifically to subsection

“D” regarding quorum, and I'll quote an excerpt of that subsection, which says, “No action to

recommend adoption of amendments to the City comprehensive plan or to recommend the

amendment of the text of the Miami 21 Code rezoning or special plan or to approve an exception

shall be taken by the PZAB (Planning, Zoning & Appeals Board) without the concurring vote of

a supermajority of board members present.” Period. And it follows by saying, “Said

supermajority consists of one more member than a simple majority.” It is that language that

already exists in your City Code that we are seeking to mirror in the Zoning Ordinance, which

presently contradicts that to some extent. Again, our recommendation is for approval, and

perhaps most telling, the Planning, Zoning & Appeals Board recommendation was also

unanimously for approval of this amendment. I'll answer any questions you may have.

Chair Gort: Okay, thank you. Discussion. Motion.

Commissioner Sarnoff: So move.







Chair Gort: Who moved it?

Commissioner Carollo: Commissioner Sarnoff moves it and I second.

Chair Gort: Sarnoff moved it; second, Commissioner Carollo. Discussion.

Vice Chair Hardemon: I do have some.


Vice Chair Hardemon: Any time there is something within our Code or there's something within

a charter or anything that has something to do with rules where you request a supermajority , to

me signals that it is of importance. And so the reason that I don't support this amendment,

although it is making it in alignment with the Code -- maybe the Code is -- went the wrong way,

but the way that I see it is that here we are with a document that says there should be a

supermajority, which -- I believe you said there is -- how many people on the board?

Mr. Garcia: Twelve members appointed, sir, and eleven who can actually vote.

Vice Chair Hardemon: Eleven who can vote, right. So that's seven? I believe a supermajority

would be seven. Now -- and the question then becomes, well, how difficult is it to get seven

votes? I mean, part of the reason that you create a supermajority of the entire board is because

it creates a higher threshold to meet -- to make these changes that we deem -- because we made

it a supermajority -- important. So how many times do we have an opportunity to have that

many people vote in favor of something? On PZ.5, there were 11 members present. On PZ.6,

there were 11 members present. On PZ.7, there were 10 members present. So to me, when I read

it, I don't think that we have a problem with quorum, but when we reduce -- or when we loosen

the language here to allow it to be a supermajority of the members present, then it becomes if

there are -- if there's a major -- if there are, say, six members would be -- which would meet

quorum, then four would make -- no -- then five would make a supermajority. So now you've

reduced it from seven to five, and so it becomes much more easy to pass whatever it is that you

want -- what changes you want to make to whatever this thing's referring to with five votes as it

pertain to seven. As just fundamentally, I'm not happy with that. Fundamentally, I think that if

there's a supermajority, it needs to be a supermajority and not a simple majority with plus one,

because this is a majority plus one. That's all that this is. This is not supermajority. So if we --

why call it “supermajority?” It's deceptive to even call it “supermajority” in this situation by

saying it means plus one because it's not. “Supermajority” means supermajority in the way that

I see it. So I'm sure other Commissioners have things to say in reference to it, but that is why I'm

not in favor of this language.

Commissioner Suarez: I just have a question.


Commissioner Suarez: Sometimes on these things, I like to get a little mathematical just to see if

we can, you know, change the discussion a little bit. Supermajority of the members is how

many? Let's -- what's the numbers?

Mr. Garcia: The supermajority of appointed members is seven.

Commissioner Suarez: Of?

Mr. Garcia: Eleven.



Commissioner Suarez: Okay, so that's a little more than 70 percent, right? So -- actually, it's a

little less than 70 percent, slightly less than 70 percent. So why don't we just say an equal

percentage of voters based on the quorum or more or greater? In other words -- right. Of

whatever the members are there, the same extent of a supermajority or more. I mean, it -- from a

percentage perspective. If it's five out of six, five out of six is greater than 70 percent, you know.

I mean, if that's what --

Commissioner Carollo: Mr. Chairman.


Commissioner Carollo: I suggest, why don't we defer this and have it massaged a little bit more

--

Commissioner Suarez: Yeah, that's fine.

Commissioner Carollo: -- and bring it back. That's what I recommend.

Commissioner Suarez: Give it a little bit of a head massage.

Commissioner Carollo: Yeah.

Commissioner Suarez: A cranial massage.

Commissioner Carollo: Move to defer to --


Chair Gort: January?

Commissioner Carollo: -- the second meeting in January.

Todd B. Hannon (City Clerk): Certainly. Commissioner Sarnoff, would you like to withdraw

your motion?

Commissioner Sarnoff: I certainly would, Mr. Hannon.

Mr. Hannon: Thank you, sir.

Commissioner Suarez: Massage the temples.

Chair Gort: Okay, there's a new motion. Is there a second?

Commissioner Suarez: Yeah, I second it.

Chair Gort: Second by Commissioner Suarez. Any further discussion? Being none, all in favor,

state it by saying "aye."

Commissioner Carollo: Aye.

Commissioner Suarez: Aye.

Commissioner Sarnoff: Aye.



Chair Gort: Aye.

Vice Chair Hardemon: Against.

Commissioner Carollo: Against the deferral?

Chair Gort: PZ.9. One against.

Commissioner Carollo: Against the deferral? We're deferring it to January.

Vice Chair Hardemon: I know. I understand, but I --

Commissioner Suarez: So we could massage it.

Vice Chair Hardemon: -- don't like this. This --

Commissioner Sarnoff: (UNINTELLIGIBLE) reconsider it.

Vice Chair Hardemon: It passes. Can I vote the way that I want to vote, please? Thank you

very much.

Commissioner Suarez: You don't (UNINTELLIGIBLE) --

Vice Chair Hardemon: Is that okay, everyone? May I do that?

Chair Gort: PZ.9.

Vice Chair Hardemon: Thank you so much.

Commissioner Suarez: You don't like massages?

Chair Gort: PZ.9.

Victoria Méndez (City Attorney): If I may just briefly. I just wanted to advise that currently,

right now, the City Code, as it reads in Chapter 62, has this provision. Unfortunately, Miami 21

has taken two years to catch up. So if you don't like this language, we have to also change the

City Code. I just wanted to be very clear with that -- and when we used to have this type of

language, nothing would get passed because, unfortunately -- and it goes back to your quorum

issue, I understand, but it just makes it very difficult. Right now we have a very active board, but

it's not always like that. So I just wanted you to know a little history. Right now the Code, as it

stands, this is the law right now that we've been --

Chair Gort: Okay.

Vice Chair Hardemon: And I --

Ms. Méndez: -- doing for two years.

Vice Chair Hardemon: And I completely -- Mr. Chairman, I completely understand what the law

is, and that's why I say maybe it's not this, but maybe it's the Code that we need to change. So,

theoretically, I'm saying something that is -- the reason I was against the deferral because I don't

necessarily believe that this is the way we should change it. Maybe I believe the other document

is what we need to change, one. And then when you tell me it's much more difficult to get it

done, to me it's one of those -- you know, this -- it's supposed to be difficult; that's why you make

it a supermajority. You can't water down supermajority and call it “supermajority.”



Chair Gort: Okay, PZ.9.

Francisco Garcia (Director, Planning & Zoning): Yes, sir. Thank you.

Chair Gort: We already vote on this. He's got all the rights to vote (UNINTELLIGIBLE).

Mr. Garcia: Absolutely. Thank you for the feedback.

14-00522v1

PZ.9 RESOLUTION

A RESOLUTION OF THE MIAMI CITY COMMISSION DENYING THE

VARIANCE APPEAL THEREBY AFFIRMING THE DECISION TO APPROVE

THE VARIANCE BY DOWNTOWN REALTY INVESTMENTS AS LISTED IN

THE MIAMI 21 CODE, THE ZONING ORDINANCE OF THE CITY OF MIAMI,

FLORIDA, ARTICLE 7, SECTION 7.1.2.7, TO ALLOW A RELAXATION OF THE

TERMS OF THE MIAMI 21 CODE FOR THE REQUIRED MINIMUM SIDE AND

REAR SETBACKS ABOVE THE 8TH STORY AND THE REQUIRED LOADING

REQUIREMENTS AS FOLLOWS: TO ALLOW A SIDE SETBACK (EAST) OF

3'10" (30'0" REQUIRED, REQUEST TO WAIVE 26'2"), A SIDE SETBACK

(WEST) OF 4'4" (30'0" REQUIRED, REQUEST TO WAIVE 25'8"), A REAR

SETBACK OF 5'0" (30'0" REQUIRED, REQUEST TO WAIVE 25'0"), AND

FROM ONE (1) LOADING BERTH TO ZERO (0), FOR THE PROPERTY

LOCATED AT APPROXIMATELY 115 SOUTHEAST 1ST STREET, MIAMI,

FLORIDA.

14-00522v1 Fact Sheet.pdf

14-00522v1 Appeal Letter.pdf

14-00522v1 Analysis, Maps, PZAB Reso.pdf

14-00522v1 Applicant Representation Letter.pdf

14-00522v1 Application & Supporting Docs.pdf

14-00522v1-Submittal-Ben Fernandez-Letters of Support.pdf

14-00522v1-Submittal-Ben Fernandez-Miami 21 Article 7 Section 7.1.2.7.pdf

14-00522v1-Submittal-Ben Fernandez-Presentaion.pdf

14-00522v1-Submittal-Ben Fernandez-Supporting File Document.pdf

14-00522v1-Submittal-Maria A. Gralia-Documents for Appeal of Variance Approval.pdf

14-00552v1-Submittal-Ben Fernandez-Historic Designation for City National Bank Building.pdf

LOCATION: Approximately 115 SE 1st Street [Commissioner Marc David

Sarnoff - District 2]

APPELLANT(S): Maria A. Gralia, Esq., on behalf of Downtown Realty

Investments

FINDING(S):

PLANNING AND ZONING DEPARTMENT: Recommended approval with

conditions*.


PLANNING, ZONING AND APPEALS BOARD: Approved the variance, with

conditions*, on September 3, 2014 by a vote of 9-0.


PURPOSE: This variance appeal seeks to reverse the Planning, Zoning and














Apeals Board's approval of a variance that will allow reductions of the rear and

side setbacks in order to construct a new mixed-use building.

Motion by Commissioner Sarnoff, seconded by Commissioner Carollo, that this matter be


Votes: Ayes: 3 - Commissioner(s) Gort, Sarnoff and Carollo

Absent: 2 - Commissioner(s) Suarez and Hardemon

R-14-0439

Francisco Garcia (Director, Planning & Zoning): Item PZ.9 is before you as a variance appeal.

It is for a property at 115 -- that's 1-1-5 -- Southeast 1st Street, and it is before you as an appeal

to variances granted by the Planning, Zoning & Appeals Board in their meeting of September 3,

2014 by a vote of 9-0. I will tell you briefly that the subject property is zoned T6-80-O, which

allows a significant amount of height, 80 stories particular, or as high as the FAA (Federal

Aviation Administration) might allow, that is, and the proposal in the plans that you see attached

is one for a 13-story building. Unfortunately, the subject site is approximately 6,500 square feet,

and it is abutted on both sides or book-ended by already-existing historic buildings which

renders the ability to develop the subject site rather constrained. And in addition to the fact that

the width of the site is, if I'm recalling correctly, 55 feet and you add to that the step backs

required by the Code, which are 30 feet on either side for the higher portion of the building, that

basically caps the building at a height of 8 stories. The hardship condition that this property has

happens to be that it is substandard in terms of size and frontage , and because of that, we think

the hardship requirement is met. And other than that, we think that the variances sought by the

applicants were the minimum variances that would yield a reasonable development of the site.

For which reason we, the Planning & Zoning Department, recommended approval to the

Planning, Zoning & Appeals Board, and for which reason, we believe the Planning, Zoning &

Appeals Board approved it. Again, Commissioners, it is before you as an appeal of a Planning,

Zoning & Appeals Board decision, and so it is before you as a de novo hearing for your

consideration. I'll stand by the answer any questions you may have, and I'll yield to the

appellant.

Chair Gort: Thank you. Yes, ma'am.

Maria Gralia: Yes. Good evening. Maria Gralia, with law office at 150 West Flagler Street. I

represent Downtown Realty and the principal is Sergio Rok. They are the adjacent property

owner to the proposed development. I want to say that we are not objecting to any development

on that site. We're just objecting to the process that was taken in approving these variances. We

don't believe that there was actually adequate findings of fact by your Planning Department on

granting this -- these variances. Further, we don't believe that the applicant presented

substantial competent evidence in order to obtain these variances. It is well established that a

board making a determination on an application for a variance is required to set forth the facts ,

findings, and reasons of which these actions are based. In this case, none of that occurred at the

hearing below. Further, applicant has the burden to prove by substantial competent evidence

that its application meets all the criteria set forth in granting a variance. Again, that was not

done at the hearing below. Further, more importantly, the board failed to set forth any findings

of fact or reasons why they granted these variances and solely relied on whatever the Planning

Department submitted before them that evening. A variance shall not be granted unless and

until every mitigating measure to offset the impact of the -- excuse me. Need my glasses -- less

relaxed requirements can be shown that -- I apologize -- offset the impacts of the relaxed

requirements can be shown to be -- to have been taken. That did not occur in this case. Again,

tonight you heard another erroneous fact, and that is that the property is flanked by two historic

structures. That is not the case. The property has a historic structure on the east side. There is

no historic structure on the west side, and you heard that again this evening. That was one of the

findings of the Planning Department that was presented to the Planning, Zoning & Appeals

Board. The other flaw with the granting of this variance was that the Planning & Zoning



Appeals Board did not consider the adverse impacts on the adjacent property. There was no

discussion. There was no consideration as to what this request would do to the adjacent

property. It's very interesting, the setbacks and -- as your Planning director stated, this is a

variance to setbacks above the eighth floor. This property can be built to the eighth floor.

Because of the size of this property -- as you heard, this is a very constrained site. It's a very

small site. The kind of variances they're requesting from floors 8 to 13 where 30 feet is required,

they're proposing on the east 3 feet 10 inches; on the west, 4 feet 4 inches, and on the rear, 3 feet

10 inches. That is substantial. I have with me that I will turn over to your Clerk the record

below. This is it. And actually, I've included more information than they included. But

basically, all that was included to establish that this variance should be granted was the analysis

by your Planning Department, which, again, in the analysis it states that the site is flanked by

two historic buildings, which I have stated here tonight and I can show you that it is not; only

one historic building, which is the City National Bank building on the east side. This is all that

was presented. There was the analysis for variance with absolutely -- all it is a reiteration of

what's in your Code, but no further analysis. I would argue that tonight that this building is

viable at 8 stories. There is no evidence in the record that it wouldn't be viable at 8 stories. And

I -- at this point, I would like to ask the Planning director a few questions. Mr. Director, did you

take into consideration any of the effects that this project would have on the adjacent property to

the west?

Mr. Garcia: My apologies. Yes, staff certainly did.

Ms. Gralia: Okay. And can you tell me what those considerations were?

Mr. Garcia: As is customarily the case, we compared the projected development as proposed

with that which would be otherwise available to any abutting property, and it is our intent

always to ensure that every site is treated if not equally -- because that's impossible, given

different circumstances -- at the very least, equitably. And given, once again, that the height

allowed in this particular district is 80 stories at most, we thought that reasonable flexibility

provided to the subject site so that as much height as feasible might be obtained considering

circumstances but certainly something that was worth pursuing.

Ms. Gralia: Thank you. And when you were giving the consideration to this project when you

were reviewing it, did you get an opportunity to review the site plan for this project?

Mr. Garcia: We certainly have had an opportunity to review the site plan, yes.

Ms. Gralia: Okay. And can you tell me how the developer treated the east façade of the east

elevation of this project?

Mr. Garcia: I believe there are plans on the record to that effect, and I am going to make

reference to those. If you allow me just a moment to retrieve those, I'll be glad to answer your

question. I don't seem to have those plans handy. I can tell you from memory, while I continue

to search -- and I would certainly urge any other parties, and I know there are other interested

parties present, should they have that information at hand and they can provide it for me, I can --

Ms. Gralia: I have it.

Mr. Garcia: -- certainly refresh my memory. But essentially, up to the eighth story, it would be a

wall that is -- that goes all the way to the property line and therefore a blank wall. And from that

point on, there is a slight -- thank you so much -- recess proposed, which would then be

minimally fenestrated. And the reason for that, of course, is that building codes require that,

given the close proximity of the two structures, that those articulations respect fire codes and

remain at minimum. I hope that is a satisfactory explanation. If not, I'm happy to elaborate.



Ms. Gralia: Yes. So the important part there that I want to make is that the east elevation of that

building is basically a blank wall, and they -- you did take that into consideration because the

adjacent property has a building next door to it, right? Okay. So can you tell me how the west

elevation was treated and how you reviewed the west elevation of this project?

Mr. Garcia: I will in a moment, but first, I would like to respond to the statement you just made.

The blank wall treatment is an as-of-right, and I want to underscore that, as-of-right treatment,

given that in this particular zoning designation, the building can go to the property line. And

any time a building is built to the property line in an as-of-right manner, it can be built with a

blank wall, so that is, in no way, an extraordinary circumstance. Having said that, you are now

requesting an analysis of -- is it the west?

Ms. Gralia: The west elevation.

Mr. Garcia: Certainly. I expect -- and I am about to verify with the plans you've kindly provided

-- that the west -- and I will certainly -- actually begin by saying that as of right, on the western

site, given that it's a small property since, as of right, they can build to the property line, I would

expect to see a blank wall there. And in fact, there is that, partially a blank wall. In fact, all the

way rising to the top there is a blank wall with a slight recess; and again, out of Code

requirements, even that recess is set aside for what is singled out as a designated area for an art

installation. Again, giving the close proximity, no fenestration is allowed, so the best they can do

is recess it slightly to respect whatever openings happen on the other side of the property line

and then some art treatment is to be provided right on that area.

Ms. Gralia: But in -- though, if I look at the west elevation, there is no blank wall. That west

elevation is actually treated with balconies and other features.

Mr. Garcia: I'm referring to design drawing A3.01, which shows a narrow blank wall, which is a

--

Ms. Gralia: Right.

Mr. Garcia: -- designated area for art installation. Above the eighth story up to there, I'm going

to assume, although it's an elevation, so it has no depth to it. It's a two-dimensional drawing

designated area for art installation. And then beyond that, so closer to the street there would be

fenestration and some balconies as well. That is correct.

Ms. Gralia: And did you take the adjacent property into consideration when you were reviewing

this project that above floors 8 to 13, you would have the treatment on that west elevation of the

balconies?

Mr. Garcia: What I can certainly say is that especially for a building of a residential or lodging

nature, certainly articulation, fenestration and opportunities to have interior spaces enjoy life

and airing are not only desirable but, in fact, mandated, and so to that end, whenever they can

be accommodated, they should be. Obviously, as you know, because this is a request for a

variance, these particular schematics are ultimately submitted to the building permitting process;

and if any of these should not comply with Code, that would be corrected at that time. That said,

these serve to provide for a -- enough information to obtain a variance. And as pertains to the

design and the articulation and, in this particular case, the fenestration proposed, we think it is

entirely appropriate. It is not the case that in considering the appropriate development for this

property, one can consider what other development exists on the property next door, because the

ability for the next-door property owner to develop his property or her property should not

impinge upon the next-door property owner's ability to develop theirs in an accurate fashion as

provided by the Code.



Ms. Gralia: So if there would have been a building on the west side already up like the one on

the east side, would you have the same -- would there be the same outcome and would you have

the same determination?

Victoria Méndez (City Attorney): Chairman, I would object to this line of questioning. We're just

basically going for the variance standard and any hardship issues and things of that nature , and

I think the Planning director has given a lot of information, but we can just narrow it.

Ms. Gralia: I'm almost done.

Chair Gort: Excuse me.

Ms. Gralia: So two seconds.

Chair Gort: I'll let the attorneys -- this is a quasi-judicial. I' ll let my attorneys here -- I see the

attorney give me an opinion, then if any other attorney would like to give their opinion, we'll

appreciate it.

Vice Chair Hardemon: Say “sustain.”

Chair Gort: Okay.

Ms. Gralia: Okay. I have one more question that doesn't go to the design, but my last question

is do you -- in your opinion, in your expertise, do you think that an eight-story building would be

viable?

Mr. Garcia: My expertise has to do with, in this particular case, with compliance with Code,

and I'm going to rely on that expertise regarding compliance with the Code and say that an

eight-story building would be complying with the Code, as would be a 13-story building, as

would be an 80-story building in principle. And I will restate something that I said previously,

which is that it is certainly appropriate for the applicants to have submitted for a variance

seeking to derive highest and best use from their land, and we believe that 13 stories on a T6-8 --

T6-80, I'm sorry, “O” zoned property, 13 stories, although certainly not highest and best use,

comes as close as possible, given the circumstances, which is why we recommended approval.

Ms. Gralia: I have nothing further for the Planning director. I know that the applicant may

have an expert, so if there is an expert, I'd like to cross-examine the expert.

Chair Gort: Sure, no problem.

Ms. Gralia: Okay.

Chair Gort: But I'll be the judge.

Ms. Gralia: Thank you. I have --

Chair Gort: Yes, ma'am. Yes, sir. Anyone -- you can use the other --

Ms. Méndez: Ms. Gralia, you can be on this side, if you like.

Chair Gort: You ready?

Ben Fernandez: Trying to get -- screen. Oh, there we go. Thank you. Okay, good afternoon.

Good evening, rather, members of the Commission. Ben Fernandez, 200 South Biscayne

Boulevard. I'm here on behalf of the property owner, and I'm the respondent in this case. You



heard from Ms. Gralia that there was no competent substantial evidence in the record to

substantiate this approval. First of all, I'd like to remind the board that the standard of review

here is a de novo standard of review, which means that the evidence that is presented today is

what you are to consider. But let me just say in addition to that, that your professional staff

recommendation, that is, for approval, 100 percent for approval, is substantial and competent

evidence by itself, and Florida case law reflects that point. So you have more than adequate

evidence before you to uphold this approval, as the PZAB did at the lower level. And let me

remind the Commission also that the PZAB approved this matter unanimously by a 9-0 vote with

almost an entire board present. This property is a slender, elegant design. It is flanked on both

sides by historic buildings in your downtown core. This is a map of the City of Miami Downtown

Miami Historic District, and you can see --

Commissioner Sarnoff: Can you stop right there? Because I'm just curious where there's a

dispute that there's not historic building flanking it.

Mr. Fernandez: I'll tell you, I can -- I think I can explain that, Commissioner. And the reason is

that the Langford Hotel, which is the City National Bank Building, originally built in '26, flanks

the building to the east. That is a locally designated historic resource. However, both buildings

are in the National Historic District and both are historic. If you just look at them, you can get

an idea of the character of the building. There you see the building that Ms. Gralia's client

represents. The PZAB also deferred this matter on one occasion to allow the owners to meet with

interested parties, and the matter was fully vetted at the lower level. So the argument that this

wasn't considered properly, that there weren't adequate protections in place, I don't believable

that those are proper arguments at this point. We also have support from all of the other owners

in the area: Mr. Abe Frankel. I've distributed letters to you from Mr. Frankel, who owns the

property to the rear, as well as the Downtown Development Authority that reviewed the project

and recommended it, as well as the Downtown Partnership.

Commissioner Sarnoff: This slide you have up here, Mr. --

Mr. Fernandez: Yes.

Commissioner Sarnoff: -- Fernandez, the proposed 36 tower under construction. Is that

Centro?

Mr. Fernandez: Yes, sir, that is Centro. And that is a project that obtained upper level setback

variances, very similar to what we're requesting today. And in that case, you didn't have the

same hardship that you have here. This is a 55-foot-wide lot in a T6-80 transect, which is your

most intense transect. What that means is that this property owner has the highest level of

entitlements that Miami 21 can grant to a property owner; yet, he's burdened with the fact that

the lot size is only 55 feet wide. Centro was able to, through their variance, achieve a density of

a thousand units per acre, which is the density that is permitted under this transect. Our project

is at less than half of that at approximately 430 units per acre. So the variances that we are

applying for are simply variances that are needed to reach a reasonable level of development on

this site. This is a great project, by the way. It is a project that will appeal to young people, a lot

of one bed-room, studio type, very New York-like setting; no parking; relies entirely on mass

transit, which allows it to have a very elegant design. With respect to the setbacks, what this

exhibit will show you is that the configuration of the abutting properties is such that they are

L-shaped so that the setback variance that we're requesting applies to the relief sought at the

narrowest point between the structures. But if you look at the majority of the building, the

majority of the length of the building, you'll find that the setbacks are actually about 12 feet

between buildings on both the east and the west, which is very reasonable for downtown

standards, where typically you have zero for the setbacks. This exhibit shows you that the height

that we are requesting, the height of the project is a hundred and -- I'm sorry. What you could do

by right as an eight-story building would be 123 feet tall, because Miami 21 counts a story as 14



feet. So if we were to build at 14-foot floor to ceiling, you would have a maximum height of 123

feet. By virtue of the variances, what we're doing is within practically the same building

envelope adding five stories, bringing down the height to approximately 10 feet, which is still a

nice floor-to-ceiling height, making the building more energy-efficient and more economical, but

still staying within relatively the same building envelope. The building envelope is 131 feet high

versus 123, almost a de minimis variance. This is what the massing would look like as an

eight-story project with a 25-foot floor-to-ceiling height at the ground level; also what Miami 21

allows. Again, this is the massing that we're proposing, almost the same, a little bit taller.

Actually, it looks a little bit more slender and elegant. The setbacks that we're providing from

the ground level are actually greater than what Miami 21 requires. Miami 21 would allow a zero

setback on both sides, which would mean that we could go directly up to the property line next to

Ms. Gralia's property. In fact, we're providing 4 feet, 4 inches from her client's property, and

we're providing 3 feet, 10 inches from the Langford. So at the very closest point, we're still

providing more of a setback than what the Code requires. With respect to the hardship

standards, again, I just want to briefly go over Article 7, Section 7.1.2.7, which are the relevant

standards, and I'll go through them quickly, but I have to because I suspect that this matter may

be further appealed. Special conditions and circumstances exist which are peculiar to the land:

The lot, as I mentioned, is a legally platted 55-foot substandard, nonconforming lot, almost 50

percent narrower than the typical lot in T6-80, which 100 feet wide. The special conditions do

not result from the actions of the applicant. My client purchased this property the way that it was

platted. A literal interpretation of the provisions of Miami 21 would deprive the applicant of

rights commonly enjoyed by other properties within the same transect. In fact, the Centro

property obtained a similar variance, and the Langford building, which is immediately to the

east, could not be developed today without similar variances, because that building is 12 feet

high -- I mean, 12 stories tall, so it would need the same variance to be developed. That

demonstrates that we're compatible with the area. The granting of the variance conveys the

same treatment to owners as owners of other lands and buildings or structures in the same

transect; obviously for the same reasons that I just stated it does. The variances -- the minimum

variance that makes possible the reasonable use of the land; we believe again, based on the

proposed density, that this is a very reasonable project. The variance is in harmony with the

general intent and purpose of Miami 21 and is not injurious to the neighborhood. We believe

that it would not be injurious because the mass and scale is similar to other projects in the area ,

and we believe that the project complies with Article 4, Table 12, as is indicated by your

professional staff recommendation. And with that, I think I would like to say I'm here with

Reynaldo Borges, who's our project architect of Borges Architects. He can answer any questions

that you may have, and I'd like to leave the floor open in case you have any. Thank you very

much.


Ms. Gralia: Mr. Chairman, if I could just respond briefly to a couple of things. I'll be very

quick. It's important to note that in Article -- Section 7.1.2.7 that he read into the record, you

must comply with all the criteria set forth, and it is our belief that they have not complied with all

the criteria, in particular, that the minimum variance that makes possible the reasonable use of

the land; an eight-story building makes possible the reasonable use of the land. Further, as far

as the statement again that this is a historic structure on the west side, it is a -- the property

surrounding this property, the area, has been designated in the National Register as a historic

area. This is not a contributing structure. It has not been designated, so I just want to just state

the record, make it clear what it is and --

Mr. Fernandez: I -- but --

Chair Gort: Excuse me. Let her finish.

Mr. Fernandez: Thank you.



Chair Gort: Then I'll give you time too, and then that's it. Yes, ma'am.

Ms. Gralia: And I also want to say that there was a statement made that the architect is the

architect of record. I believe that that's not the case. The architect is -- the architect of record is

not here. I have no idea where he is. That's the architect that we met with. And we have had --

tried to discuss our issues and our concerns with the developer. We want this development to

take place, but I truly believe and my client truly believes that the way that this project has been

designed, the variances that have been granted is going to adversely affect his property. Thank

you.

Chair Gort: Thank you, ma'am. Yes, sir, you have two minutes.

Mr. Fernandez: Mr. Chair, I'm sorry. I just had to correct the record. This is a contributing

property within the National Historic District. (UNINTELLIGIBLE) indicated on this map. It

shows that (UNINTELLIGIBLE).

Chair Gort: You got to go on the mike. My understanding, you both are saying the same thing,

that a historical district, but the building itself is not declared historic, and so we understand

that.

Mr. Fernandez: Okay. And I do want to say that the application is reasonable. The FLR (Floor

Lot Ratio) that is permitted by right here is 24 times the net lot area. The FLR of this project is

7.65 times the net lot area; very reasonable. Thank you, Mr. Chair.

Chair Gort: Thank you. This is a public hearing. My understanding, (UNINTELLIGIBLE) of

you -- you have a couple of people like to speak.

Jennifer González: Good evening, Commissioners. I am Jennifer González. I'm here on behalf

of Allen Fons, of Fons, Inc. Mr. Fons, unfortunately, couldn't be here today; he's out of town.

But I'm here just to state, as a matter of public record on his behalf that he is the architect who

developed the plans that this variance is based on, and there's currently a private dispute

between him and the property owner. As of right now, we've put the property owner on notice

that they're not entitled to rely on his plans, and if this private dispute is not resolved amongst

the parties, they may not have permission to ultimately use the plans, so just stating that as a

matter of record.

Chair Gort: Thank you. Who's next?

Grant Stearn: Hello. My name is Grant Stearn, 400 Northwest 26th Street. I'm a nearby

resident, and I'm just here to speak in favor of the project. I'm very pro transit-oriented

development; having a project that changes the building envelope modestly but maintains the

building envelope significantly, and more importantly, doing it honestly and applying for a

variance the proper way; it's the right way the go. I commend these people. They have a great

project, a great building, and I hope that you guys pass their variance. Have a nice day.

Chair Gort: Thank you. Who's next? Who's your other name? Who --

Todd B. Hannon (City Clerk): All good.

Chair Gort: Okay, close the public hearing.

Mr. Garcia: Sir, if I may, while the while the public hearing is perhaps open for one more

second. I did want to put a statement into the record and give everyone the ability to question me

about it, should they wish to do so. But I did want to point, because it has been a point of



contention, that finding number 5 of many in our staff analysis -- I' ll be more precise. Finding

number 5 of 11 in our staff analysis does point out that this site, the subject site is flanked -- and

I'm reading verbatim -- by two historic buildings. Adjacent to the east is the locally designated

13-story City National Bank Building built in 1925, and adjacent to the west is the historic 101

Southeast 1st Street Building built in 1920. It may be the case -- and it doesn't say so here, but

I'm happy to put it in the record -- that the 101 Southeast 1st Street Building built in 1920, while

not designated singularly, is a contributing structure within the historic neighborhood.

Chair Gort: Okay, thank you. All right, we'll now close the public hearings.

Commissioner Sarnoff: Mr. Chair.


Commissioner Sarnoff: Ordinarily, I tend to believe that you get what you pay for when you buy

your building site based on 55 feet by whatever dimensions. And Francisco Garcia and I have a

pretty hefty standing argument over a site on the river where I believe a size 11 shoe is being put

into a size -- or size 11 foot is being put into a size 6 shoe, especially when it's by the river and

you start creating non-setbacks on what I think should be public areas. In this circumstance, and

based on the competent, substantial and overwhelming evidence, it appears to me that you have

somebody who, as of right, can go eight stories, but instead is doing something more consistent

with the neighborhood, creating an affordable -- more affordable housing opportunity, their

height variance being 8 foot de minimis in terms of the neighborhood; that this is something that,

as of right, they should be granted the variance; otherwise, we'd be offending 7.12 --

Ms. Méndez: One point two point seven.

Commissioner Sarnoff: -- 1.2.7 of our Code, so I would move to deny the appeal.


Chair Gort: I'm sorry; I missed that.

Commissioner Sarnoff: It's a motion to deny the appeal.

Chair Gort: Okay, it's a motion to deny. Is there a second? It's been second. Any further

discussion? Being none, all in favor, state it by saying "aye."



Ms. Gralia: Thank you.

Mr. Fernandez: Thank you.

13-01030iia

PZ. 10 RESOLUTION

A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH

ATTACHMENT(S), DENYING THE APPEAL BY GRANT STERN, PETER

EHRLICH, ROSI BARRIOS, SANDI MADGER, DAVID LE BATARD, YASMINE

GARATE, AND ANTHONY DAVIDE, AFFIRMING THE DECISION OF THE

PLANNING, ZONING AND APPEALS BOARD, THEREBY GRANTING THE

CLASS II SPECIAL PERMIT APPLICATION NO. 12-0054, ISSUED BY THE



PLANNING AND ZONING DEPARTMENT ON AUGUST 12, 2013, TO ALLOW

NEW CONSTRUCTION ON THE PROPERTY LOCATED AT APPROXIMATELY

3055 NORTH MIAMI AVENUE, MIAMI, FLORIDA.

13-01030iia - CC 11-21-13 Class II Approved by PZ Dept.pdf

13-01030iia - CC 11-21-13 PZAB Supporting Docs.pdf

13-01030iia - CC 11-21-13 Appeal to PZAB.pdf

13-01030iia - CC 11-21-13 Appeal to CC.pdf

13-01030iia - CC 11-21-13 Maps & PZAB Reso.pdf

13-01030iia - CC 11-21-13 Legislation (Version 3).pdf

13-01030iia - CC 11-21-13 Legislation (Version 4).pdf

13-01030iia - CC 11-21-13 Exhibit A.pdf

13-01030iia - CC 11-21-13 Submittals-Emails-Midtown Walmart.pdf

13-01030iia - CC 11-21-13 Submittal - Peter Ehrlich.pdf

13-01030iia - CC 11-21-13 Submittal- Mark Alvarez Presentation - Midtown Walmart Class II Special Permit.pdf

13-01030iia - CC 11-21-13 Submittal - Paul C. Savage - PowerPoint Presentation - Appeal of Class II Special Permit.pdf

13-01030iia - CC 11-21-13 Submittal - North Miami Elevation.pdf

13-01030iia - CC 11-21-13 Submittal - Projection-WalMart in Midtown.pdf

13-01030iia - CC 11-21-13 Submittal-Presentation-Background.pdf

13-01030iia Fact Sheet.pdf

13-01030iia Certified Minutes RE FileID 13-01030ii CC 11-21-13.pdf

13-01030iia 11th Judicial Circuit Order Appellate Division.pdf

13-01030iia Certified Resolution R-13-0471.pdf

13-01030iia-Submittal-Grant Stearn-Supplemental Brief of Respondent to 11th Circuit Court of Appeal.pdf

13-01030iia-Submittals-Paul Savage-Mandate from Circuit Court Appelate Division 11th Judicial Circuit.pdf

13-01030iia-Submittals-Paul Savage-Passages from the opinion of the Appellate Court Opinion at 4.pdf

13-01030iia-Submittals-Paul Savage-Passages from the opinion of the Appellate Court Opinion at 7, 8 and 9.pdf

13-01030iia-Submittal-Grant Stern-Audio Recording-Judges rule against Walmart in Midtown Miami.pdf

13-01030iia-Supporting Docs-SUB.pdf

13-01030iia-Analysis-SUB.pdf

13-01030iia Legislation (Version 2).pdf

13-01030iia Legislation (Version 3).pdf

13-01030iia Exhibit A.pdf

Motion by Commissioner Sarnoff, seconded by Commissioner Carollo, that this matter be



R-14-0440

Chair Gort: PZ.10.

Francisco Garcia (Director, Planning & Zoning): Thank you, sir. I'm going to introduce briefly

item PZ.10, and then, very promptly, yield to the City Attorney's Office or, perhaps, I will do that.

I will simply note for the record that item PZ. 10 is related to -- and I'm not even going to use the

legal jargon, which I'll defer to my colleague, the City Attorney, on, but I will tell you that it's

pertaining to the Class II Special Permit appeal relating to a site at 3055 North Miami Avenue,

which may -- you may otherwise have heard of as the Walmart in Midtown. That said, I'll defer

quickly to the City Attorney's Office, but I would like to make a couple of additional comments

once she has completed her presentation. Thank you.

Chair Gort: Yes, ma'am.

Victoria Méndez (City Attorney): This matter is brought back before the City Commission on
































appeal of a Class II Special Permit issued to Walmart Stores East. Previously, the Planning

director issued the permit. Petitioners Jacobs Pfeffer, et al., appealed to PZAB, the Planning,

Zoning & Appeals Board, which denied the appeal; and also appealed to this Commission, which

denied the appeal by resolution R-13-0471 on November 21, 2013. Pfeffer, et al., appealed to

the Appellate Division of the Circuit Court, raising a number of arguments. The Circuit Court --

the Appellate Division of the Circuit Court ruled that the Planning director was not bound by the

recommendations of the NET (Neighborhood Enhancement Team) Office and the UDRB (Urban

Development Review Board). The written findings of the Commission were sufficient as a matter

of law. The project met the 65 percent pedestrian use frontage requirement. The project

complied with the liner uses requirement. The project was in compliance with the setback

requirements for parking facilities. And the project satisfied the building continuity

requirements. These rulings of the Appellate Division of the Circuit Court are the law of the

case. They're outside the scope of this Commission's review today. The Commission can rely on

all the past evidence on the record regarding this item and use that as a part of their decision

here today, along with the law of the case as presented by the Appellate Division of the Circuit

Court. The only ruling against the project involved a number of loading berths . The permit

included more than three loading berths. The Court interpreted the Code Section 627.215 in the

appendices of Miami 21 to only allow three berths total, so not five, not four; only three. The

Court stated, Since the project provides for five berths and the Code requires three berths total,

this Court finds that the Commission's resolution finding the project complied with the

requirements under the Code is a departure from the essential requirements of the law. For the

above stated reason, we hereby quash the Commission's decision as set forth in Resolution

R-13-0471, file number 13-0103ii, and remand this cause for proceedings consistent therein.”

Based on the ruling of the Appellate Division of the Circuit Court, the case is back now before

this Commission on the limited issue to consider the appeal as it relates to the number of loading

berths only, so the amount of loading berths. So the --

Chair Gort: They appeal it because they want to see the five instead of the three

(UNINTELLIGIBLE) by the judge?

Ms. Méndez: Well --

Chair Gort: Is that what they said; they want to see the five instead of three?

Ms. Méndez: -- not --

Chair Gort: Now, my understanding, the judge says not five but three, but they appealing the

judge decision, which means they want five bays?

Ms. Méndez: Well, the -- it's back here because the Court has said to bring it back, but more

importantly, I just want the -- this Commission to know that the de novo hearing -- so the hearing

from scratch that you're going to listen to is only supposed to be on whether there should be

three berths or not.

Chair Gort: Okay.

Ms. Méndez: Nothing more, nothing less. I'm sure that Mr. Savage is going to disagree with

that.

Chair Gort: I know. I (UNINTELLIGIBLE) the whole process (UNINTELLIGIBLE). Yes, sir,

you're recognized.

Paul Savage: Thank you very much. My name is Paul Savage, with law offices at 100 Almeria

--



Ms. Méndez: I'm sorry. I'm sorry.

Mr. Savage: Yes, ma'am.

Ms. Méndez: Thank you, Mr. Savage, but that was what I needed to say on the record, but the

Planning director still has to give his presentation before you start .

Chair Gort: Go ahead.

Ms. Méndez: Thank you. I apologize.

Mr. Garcia: I'll be very brief. No, but that's fine. I'll be very brief, and I appreciate the

opportunity to say this, and this goes directly to the question or comment that Commissioner

Gort made. I, as your Planning & Zoning director, have to tell you that I have found both the

logic and the order of the judges difficult to process because to me -- and again, this is my view

as a lay person, not an attorney -- it is somewhat counterintuitive. That said, I am under the

impression that we have been directed by the Court to correct an error that was made in the

Class II Special Permit, which my department issued and which I signed. So I understand my

choices to be very limited today as your Planning & Zoning director, and my choices are

basically only to bring back to you a project that has a total of three loading berths , because the

Court decided that “total” is to be interpreted as meaning no more than -- no less than three

loading berths, and this is in fact what the applicants, the original applicants have done. They

have presented to us and you will find in your packets, documents that show that where there

were once five loading berths, there are now three loading berths; and of course, because we

have to do our due diligence, we had to make sure that those three loading berths that the

documents show are functional, which is why you will see in some of the drawings there are

maneuvering diagrams. So there are three functional loading berths presently in this particular

establishment. By doing so, we believe that we have complied with the Court's order, and we

submit to you then that the revised set of documents and the analyses and findings that are

attached to those documents are worthy of your approval and corrective of a defect found by the

Courts. Thank you.

Chair Gort: Thank you. Yes, sir.

Mr. Savage: Thank you so much. Thank you, Commissioner, Chairman. My name is Paul

Savage. I have offices at 100 Almeria Avenue. I'm here on behalf of the numerous objectors who

are listed in both my appellate papers and also on the pre-existing appeals to the PZAB and the

Commission; all of which is a part of this record. I just want to jump right in. I have a very

serious other -- or distinct view, rather, of what the Appellate Court did. My arguments, as

briefed up for the PZAB, for this Commission, and again in front of the Appellate Court, was at

all times an argument about process. It was not merely an argument about three versus five

loading berths. The reason I was talking about those loading berths was because if you have a

variance, you have no business traveling under the process of a Class II Special Permit. A Class

II Special Permit is a special species that is purely administratively approved, and without

additional hearings and other proceedings that are required in a Major Use Special Permit

where a variance -- as a prime example, the last matter before you was a variance; people were

talking about hardship standards. It's another animal altogether. So what I was arguing in front

of all tribunals was that this has variances. It does not need to be -- it should not have been

treated as a Class II Special Permit. We were robbed of those procedural points of entry and

public hearings and all of those things that are there in a Major Use Special Permit and that are

not there in a Class II Special Permit. So the Court ultimately agreed with me; granted many of

the variances that I identified, and I had a long list. The Court said, “Mr. Savage, you' re correct

in the law, but in the application of the law to the facts, we disagree with you; that was not a

variance. Let's go to the next one.” All of the things that your City Attorney enumerated. “No,

Mr. Savage, that's not a variance.” But they got down to the loading berths and they said, “Yes,



this” -- “the Code says three berths total. We construe Florida Statutes every day of our lives.

As judges, we can read what 'total' means.” I have three children total. My cholesterol reading

is so much total. I know what total means. You don't get five without a variance; you get three.

Because there's a variance, and all I needed was one, and the Court said that my most

compelling argument is that the Class II Special Permit, improperly granted variance --

variances which are subject to a stricter standard of review, notice and public hearing process.

The Court goes on to say, “In other words, petitioners allege that a variance from the Code

cancels the Class II Special Permit and requires that the application be resubmitted under other

applicable provisions governing variances.” So I was right; there was a variance. It needed to

go to another process. And to come back down and read this as -- and pretend that it was only

about those loading berths and to slap a Band-Aid on it and say, “Oh, we'll take out the berths,”

I'm sorry, that is not bringing -- that is not -- those are not proceedings consistent with the

opinion of the Court. That's an oversimplified and facile reading of the opinion. For example,

the NET referral that happened in October 9, 2012 was with a variance and, thus, is invalid.

The NET referral of February 13, 2013 to the Wynwood Allapattah NET referral office, that's --

that had a variance. That was not supposed to be handled that way. The UDRB (Urban

Development Review Board) hearing of February 4, 2013; the UDRB hearing of February 20,

2013; the Class II itself, which was issued on August 12, 2013, all of that is void. We cannot

breathe life into this invalid permit. Moreover, only the director can issue Class IIs after certain

referrals are made; none of that has been made here. We basically had an argument all along

the way that this should be handled a different way. The City believed the other way. And the

Court has come down and ruled that, in fact, it should have been handled in a variance. If you

want to take out your variance, then resubmit a new Class II application and let the citizens have

a proper application before them and make the requisite referrals and the like. Essentially, your

honor -- I'm sorry -- essentially, ladies and gentlemen -- or gentlemen on the Commission, the

Court has ordered a retrial, if you will, and not just a little Band-Aid fix. This has always been a

procedural argument. It remains a procedural argument. To do it in this hasty way and not

require them to go back and make a proper application that doesn't have a variance and get all

of our procedures in order, I believe will not be in line with the mandate of the Court, which, by

the way, says that “You are commanded that such further proceedings be had in such cause in

accordance with the opinion of this Court, attached hereto and incorporated as part of the

order.” And I'm available for any questions that you may have.

Vice Chair Hardemon: Thank you very much. I believe at this level, you will be the petitioner?

Richard Lydecker: Yes.

Vice Chair Hardemon: Will you announce yourself for the record, please?

Mr. Lydecker: Richard Lydecker, Lydecker and Diaz, representing my client, Walmart. We're at

1221 Brickell Avenue.

Vice Chair Hardemon: Would you like to --

Mr. Lydecker: Sure.

Vice Chair Hardemon: -- (UNINTELLIGIBLE) for the record?

Mr. Lydecker: Thank you. The petitioner or appellant is urging for more hearings in this case,

and that's -- I'll be honest, that's very remarkable, probably one of the remarkablest [sic] things

I've ever heard, because the Appellate Court has just ruled in this case. The Appellate Court

considered all of these issues. And I stood before you all about a year ago and I said, “This is

the spaghetti defense where they throw up everything,” and we had a great big hearing and we

addressed every issue along the way, right. It was in front of this Commission. The Commission

unanimously ruled in favor of Walmart that, yes, we met the design standards. It went up on



appeal. The Appellate Court considered all this [sic] issues and said that the City Commission,

this Commission, in its unanimous decision got it right; the process, 100 percent right; virtually

every decision in the case right. So the question as to whether or not we met the design standard

or every little thing they point at, the Appellate Court has ruled. Everybody got it right. Now,

they are the only people who think that something went wrong, right. They've argued the same

thing, this variance, this theory of theirs. They argued that at the UDRB; they ruled against

them. They argued that at the Planning & Zoning Appeals Board. The Planning, Zoning

Appeals Board, they all ruled against them. This Commission ruled against them. The Appellate

Court ruled against them. Everybody ruled against them but them. And the truth of the answer

is they just don't want a Walmart store there. They just want to oppose it. And there -- this

procedural stuff just becomes a pretext for that. Now, the Appellate Court -- let me back up. The

Appellate Court agreed with everything. In the remand order actually to the Commission, it

verbatimly [sic] states -- and he says it right there -- that “You are hereby commanded to take

actions in accordance with this opinion.” This opinion supported everything that this

Commission found, right. You can't go back and undo the decision that's already been made by

the Appellate Court. Now, the Appellate Court did make one distinction. It made a legal

distinction. It looked at the City's Code and it said, “The City has interpreted this Code

provision to be a maximum versus a minimum of three versus five berths.” Okay, so the legal

opinion from the Court that says now it's three. Okay, so I -- we got the opinion; we looked at it.

We went back. I pulled out my eraser and I looked at the plans. I said, all right, let's make it

three. Let's conform our plans to what the Appellate Court told us to do, because he just told us.

Everything's good, except for make it three berths. We said, “All right, we'll make it three

berths.” That's not a big deal actually. It actually works out better for us. So we conformed to

it and made it three berths. Notwithstanding, they want to have a debate and talk about

variances. After the Appellate Court's ruling, the discussion gets pretty simple. The discussion

becomes whether or not we want to have three loading berths or do we want to have three

loading berths? Or, on the other hand, should we have three loading berths? Because the

Appellate Court just ruled “thou shalt have three loading berths.” I asked my client. I said,

“Client, how many loading berths do you want?” They looked at me and they said, “Well, I'll

have three loading berths.” That's it. Nothing's changed in this case. We are asking about --

that the resolution be passed approving our Class II Permit. We have done all the hearings in

this case. That they -- we passed our Class II permit. And just -- and it's like any other

condition. You just add -- include the condition as part of the resolution that we comply with the

appellate order specifically requiring three loading berths. And to back that up, we've actually

provided plans, turnability [sic] plans; actually, back it up by representation. We will just have

three loading berths. So we would urge a simple resolution. We have done this for almost four

years. We really do, do a good job there. And I will say this to you on a personal note, and I'd

like to close with this: There was a dream called Midtown Miami. It was to take some of the

biggest blighted area in the City of Miami, hopelessly riddled with junk and crime, and convert it

into one of the most successful urban design, outdoor shopping and residential area. It's

beautiful. It's a success we can all be happy with. But that dream was only half completed. My

client is the other half of that dream. And we're asking for your support so that we can finish and

move everything forward. And I thank everybody for their time.

Vice Chair Hardemon: And --


Vice Chair Hardemon: Mr. Lydecker and also --

Mr. Savage: Yes, sir. Paul Savage.

Vice Chair Hardemon: -- Mr. Savage. No, I appreciate both of you all's argument moving

forward. And one of the things that I know that we're tasked with is a de novo review. And

considering the fact that we have a de novo review, in the opinion that was laid down by the



Appellate Court, it laid out reasons that it was in your favor, Mr. Lydecker, and reasons that it

was not in your favor, Mr. Lydecker; as well as, Mr. Savage, reasons that it was in your favor

and it was not in your favor. And so I just want to ensure that at this level, we at least hear some

fact that you want to put on the record to support your opinion, the opinion that -- of the

Appellate Court made so that when -- as we make our decisions here today, that our -- and how

do I put it? I want to read this -- and remand this cause -- proceedings consistent herein, we

want to make sure that we do everything right so that the decision we make today is one that will

stand once appealed.

Mr. Savage: May I have -- and I -- that's a great way to proceed, as long as I have a chance to

rebut.

Vice Chair Hardemon: Sure.

Mr. Savage: If that's okay through the Chair.

Vice Chair Hardemon: You will have one opportunity --

Chair Gort: Through the Chair.

Vice Chair Hardemon: -- to rebut.

Mr. Savage: Thank you, sir.

Mr. Lydecker: Here's what I would say as your -- we have had a full hearing, as --


Mr. Lydecker: -- I think you may recall. We did have very spirited debate. We chased down

every issue. We would rest on our record in this case, based upon prior hearings that we have

done.

Vice Chair Hardemon: And let me -- I'm sorry, and I'll interrupt for one moment. And I'm not

asking you to give me another hearing. That's not what I'm doing.

Mr. Lydecker: Okay.

Vice Chair Hardemon: But in the opinion, there were very specific statements that were made by

the Court that sustained your position.

Mr. Lydecker: Correct. And we would say -- then I will draw this Commission's attention to a

2012 case that I think actually pled very well, and it's a case involving Lucia Dougherty that

came up with the Appellate Court, and there are just two phrases that I would just read into the

record right now as well. Says, “Under the law of the case doctrine, questions of law that

actually have been decided on appeal must govern the case in the same court and in the trial

court through all subsequent proceedings.” Second phrase, “The City Commission's de novo

review” -- this is when it came back from remand -- let me back up. This was a case where it

went up on appeal and it was remanded back for certain actions. The City Commission did an

additional action than what was the basis of the remand order. And this is what the Court said,

the Appellate Courts: “The City's Commission” -- is this City's Commission -- “The City

Commission's de novo review deprived Dougherty of previously successful application without

any legal basis and allowed respondents an additional bite of the apple not contemplated under

the City's code” -- that's this City -- “or the appellate pronouncement in this case.” And then I

would also draw the Commission's attention to the language of the actual remand order. The

Clerk went through the entire record; was brought up there and it was reargued. And they only



said on a legal basis, five equals three. So it was no -- it was a numeric question: five loading

berths versus three. We said, “Fine, we'll take three. We'll comply to the law.” And then on the

remand order, it specifically says, “You are hereby commanded to take further proceedings in

accordance with this opinion.” And the opinion provides expressly we're right every which way,

except five versus three. We confirm to -- we reformed it to three, and that's what's before you

right now. And my esteemed colleague has argued to you the same things that were argued

before and, in effect, request that you, this body, reverse the Appellate Court, 'cause that's what

he's asking. He's saying, “I don't like the process.” He's saying, “We should not have done a

Class II Permit.” Well, if he felt that way, he argued in front of the Appellate Court and the

Appellate Court disagreed with him. And he had another appellate opportunity, and that was to

take it to the Third DCA (District Court of Appeal). And you know what? They abandoned their

appeal. They abandoned it. If they felt that the process was wrong regarding a Class II Permit

or whether or not a variance was gone [sic] or something that was wrong with that appellate

decision, they should have taken the next appeal, but they chose to abandon it, and they come

back to this Commission and ask you to reverse the Appellate Court, and that, I would

respectfully suggest, is something that you just cannot do.

Commissioner Sarnoff: Mr. Chair.

Chair Gort: Yes.

Vice Chair Hardemon: You're recognized.

Commissioner Sarnoff: So being the attorney -- I'm sorry. I wasn't the attorney. Being the

Commissioner that the Court was speaking about in Dougherty versus City of Miami, who then

put on and did not listen to the Court based on his previous ruling , and then I investigated what

the law of the case really means, and it's to avoid piecemeal litigation where the Appellate

Courts has [sic] made findings of facts. I think it's only one thing we have to do here, and they

have submitted a three-bay plan. The only evidence we need to hear today is: Can this building

operate with a three-bay plan? Once we hear that, based on a case called Bueno versus Bueno,

which is a Third DCA, 677 Southern Second Third matter, citing Supreme Court decisions of

Jacobson versus Humana, we don't have choices here. And having met my brethren Third DCA

judges and having been told by them “Do you not understand what 'proceedings consistent

herein' mean, Mr. Sarnoff? And I'm speaking to you as Commissioner Sarnoff. And I said, “I

understand, judge. When you tell us to come back and do something, we do what you tell us to

do.” So I think the only thing we have to hear, Mr. Chair, is does this building operate?

Vice Chair Hardemon: But -- and I want to very clear for the members that sit on this

Commission, the board. There are facts, though, that we need to hear in reference to what you're

stating. So what I'm saying is that we need to be careful as the Commissioners that we receive

those facts before we make a decision. If we make a decision without having those facts, then

there was no de novo review.

Mr. Lydecker: I would suggest, respectfully, that we have submit drawn plans showing the

operational and maneuverability of how trucks would work within the loading bay area and --

Commissioner Sarnoff: And -- but what I think we need to hear is the Planning director saying

--

Mr. Lydecker: Right.

Commissioner Sarnoff: -- this building operate satisfactorily.”

Ms. Méndez: Which he said that at the beginning when he gave his --



Commissioner Sarnoff: I didn't hear; I'm sorry.

Ms. Méndez: -- presentation, but we can --

Commissioner Sarnoff: I apologize.

Ms. Méndez: -- just clear for the record, Mr. Garcia, can you please explain for the

Commissioners, so there's no doubt, the viability of three berths with this project at this point?

Mr. Garcia: Thank you. Yes. And I would like to phrase it in the following fashion: Your

Planning & Zoning Department has submitted -- and it is on the record -- a document called

“File Number 12-0054, Analysis for Modifications to Loading Berths for Class II Special

Permit.” Within this document, which I signed myself, dated the 15th of November of 2014,

there are findings and comments, specifically seven findings, and our recommendation -- and I'll

simply put that in there for the record -- and our findings, to summarize, are as follows: The

modifications made to the plans render the three remaining loading berths fully functional .

There are maneuvering studies that prove that. In addition to that, we find that the three loading

berths, as provided, comply with what we understand is to be the -- what we understand to be the

Court's mandate to interpret the Code to mean that, at most and at least, three loading berths

shall be provided. So we are here to verify that three loading berths fully complying with the

appropriate sizes and dimensions provided by the Zoning Ordinance have indeed been provided;

plans attached to show that that is the case. And lastly, as the Commissioner requires and we

have pointed out, this particular establishment will function just fine. It will function properly

with the three loading berths provided. I'm happy to answer any additional questions.

Vice Chair Hardemon: Well, why wouldn't -- with that statement being made, Mr. Savage, I want

to give you an opportunity to differ in opinion as to the facts that have just been put on the

record for your client's sake.

Mr. Savage: Well, yeah, I have a -- absolutely, I'll put on the record. I think that the proceeding

is improper. The court is clear that there was, in fact, a variance; that the proceeding was

wrong. The proceeding was wrong. We went through County Court, if you will, instead of going

through Circuit Court. The judges ruled that we should have been in another proceeding, and

they need to resubmit their application. But to answer your question, even though I disagree

with the whole procedure, I will answer your question and say, if you're having a de novo

hearing on -- and by the way, this thing is framed up by your existing resolution as “We're going

back in time and hearing Mr. Savage's appeal from PZAB.” That's what this resolution says

right now. And I'm standing on the -- I'm very comfortably, by the way, standing on the written

opinion of three Appellate Court judges, and I happen to know a little bit -- a little something.

Maybe I can't do a floor area ratio calculation very well, but I did clerk at the Third District

Court of Appeal in the beginning of my career; I've drafted language that now resides in the

Florida Statutes, and I know something about what an Appellate Court is saying. This Court set

out my argument as my -- as the most compelling argument. The part that's missing, I will grant

you, are the seven reasons or more that they rejected all the variances that I said. I -- and I'm

not re-arguing that. But what it says at the end is “Mr. Savage, you did; you found one. It's in

here. You're right, there should have been another process,” but okay, so I'll go down the rabbit

hole with you and I'll said that this is what we're doing and you're having a de novo hearing.

Well, a de novo hearing of that appeal was, I was at that time complaining that the PZAB got it

wrong because they didn't find a variance. Well, guess what? I'm standing on an Appellate

Court opinion that said, “You know what? There was a variance.” So you're still going to deny

my appeal? I was right; there was a variance. I mean, I'm very comfortable taking this record,

and I'm very comfortable having that decision about did -- having that discussion with the Court

about “Did you follow our mandate?” And you want to make jokes. You think it's funny? Yeah,

okay, fine, we can make jokes. I mean, this is just -- you lost, okay. You lost this case. Now, we

want to, you know, act like Taylor Swift and shake it off, and move on, and stop on a Band-Aid



and keep on trucking like it didn't really happen, okay, I know their address. I know where to

take it.

Vice Chair Hardemon: Thank you very much. Commissioner Suarez.

Mr. Lydecker: Mr. Vice Chairman, I also have my client here who might -- who would be willing

to testify very briefly, if that's helpful.

Vice Chair Hardemon: Okay, I want to recognize Commissioner Suarez before we move there.

Commissioner Suarez: Thank you. That's the first Taylor Swift reference that I've been privy to

since I've been here as a Commissioner, so kudos to you for that one. I have a question in terms

of amplifying the record a little bit. I just asked you a question privately and I want to ask it

publicly, which is they've reclassified the five berths as three berths with a staging area. Is that

correct?

Mr. Garcia: Yes, sir. As a result of deleting the other loading berths -- and I'm going to clarify

that I am calling them loading berths because the Court called them loading berths -- that, in my

previous mind, was debatable. I will no longer debate that. The Court said there were five --

Commissioner Suarez: You shouldn't debate that.

Mr. Garcia: I understand. I understand, but should the issue ever come up, I just want to note

for the record that the one on the upper story perhaps should not have classified as loading

berth. We had approved the project with four loading berths. That said, five loading berths have

been turned into three. And you are correct, Commissioner, as the plans show where there were

previously five loading berths, there are now three, and the result of that is that there will now be

three properly dimensioned, properly striped areas. And I'll now use the loading berth definition

provided by the Appendix “C” of Miami 21, which refers back for full clarity to Zoning

Ordinance 11000, as appropriate, to indicate that “loading berths” in this context means that

these are the sole spaces where trucks or other delivery vehicles may station themselves so as to

load and unload merchandise. Because the number of loading berths is now three, the area that

was previously set aside for the other two loading berths now function as additional space for

staging areas to be used as appropriate, not for loading.

Commissioner Suarez: And in your opinion, that's in conformity with our Code, and with Miami

21 and that's an acceptable -- and that's welled off. That's not -- there's no viewing of that?

There -- it's not viewed by the public, et cetera.

Mr. Garcia: These three loading berths are fully contained within the building, fully shielded

from view and protected by either walls or a gate, yes.

Commissioner Suarez: And the other question I asked you was whether or not they had

submitted a traffic management plan and you told me that they had.

Mr. Garcia: The original Class II Special Permit application addressed those issues

satisfactorily, and they were reviewed by the CITP (Capital Improvements & Transportation)

Department, as well as the Planning & Zoning Department, as well as the Public Works

Department. Yes, sir.

Commissioner Suarez: Okay. I -- I think it was important to amplify the record on those issues,

because when you delete three berths -- or five berths and you make it three berths, the natural

question is, well, what happened to the remaining area? So I think it's important for the

Planning director to specify that and put that on the record very clearly. I want to make some --

a generic statement about this, but I'm not so sure that I should. You know, I never fully -- and I



am the Midtown chair so I suppose I should somewhat opine on this. You know, Midtown has a

great vibe, and it was created in a way that is a mishmash of a lot of eclectic things, whether it's

restaurants, whether it's housing, and it's kind of a mixture of the big-box concept with also very

cool and innovative restaurants, and unfortunately, it seems to clash right in that point, you

know, and I think that's what really led people to question whether Walmart was the best

property for that or the best use. Unfortunately, in a democracy, in a capitalistic democracy,

you don't necessarily always get to choose what -- whether it would be a Best Buy or whether it

will be some other sort of big-box store. One thing that I think is important is that it is lined

along Northeast 1st Avenue with what will ultimately be, hopefully, a use that is much more

consistent with the kind of cool vibe that we have along Northeast 1st Avenue, and I think that's

something that, if you're an opponent of this, that will be hopefully something that would placate

you a little bit and would make your feel more comfortable with the proposed development, and

that's something that I'm sure was hard negotiated and hard fought through the competing

elements that were at war, and there were many for a long period of time, 'cause this has taken a

long time to get to this point. Again, this could be a Best Buy. This could be anything else. I'm

not so sure why Walmart specifically is so offensive to some people. It does serve a lot of poor

people in our community and that, to me, is something that, you know -- just like any general

store, any large commercial general store, you know, we can't -- Midtown cannot be just for one

class of person, I think, and sorry for making all these kind of generic statements that really have

nothing to do with the court case at issue. But I wasn't hear the first time that this was heard, so

I kind of -- was kind of on my mind and kind of wanted to express my thoughts on that .

Vice Chair Hardemon: Thank you, Commissioner. And one thing -- I want to assure Mr. Savage

that his arguments are not going on deaf ears.

Mr. Lydecker: Yeah.

Vice Chair Hardemon: I read what you've highlighted and it says, “Finally, the most compelling

argument” -- and it is an argument -- “of the petitioners is that the Class II Special Permit is

improperly granted variances” -- so what you've argued that it was not a permit but a variance

-- says, “which are subject to a stricter standard of review and notice in public hearing

process.” In other words, “the petitioners allege that a variance from the Code cancels the

Special II Permit and requires the application to be resubmitted under other applicable

provisions governing variances.” Now, it properly says that that is an argument. It does not say

in the next sentence that you are correct in your argument, but it does say that “In contrast, the

respondents argue that they presented competent substantial evidence establishing the project 's

compliance with the requirements under the Code.” And I read that because the statements that

you skipped in between your presentation are important, because in that paragraph that we just

read, it does not say that the application needs to be resubmitted. What it does go on to the next

paragraph and it says, “The test is whether there exists any competent substantial evidence to

support the decision-maker's conclusion.” The decision-maker would be the City Commission at

the -- sitting in this capacity. And then it says, “Evidence supporting a contrary decision is

relevant.” So it's not considering whether or not there's some contrary evidence there, but

whether or not there is competent substantial evidence to support the decision-maker. And so

then it goes on to the facts that were laid out, and it said, “in fact” -- in one of the -- in -- one of

the paragraphs, it reads, “In fact, she” -- referring to Ms. Ana Gelabert -- “testified that the

project exceeded this requirement.” And so, in that statement, it was giving substantial --

competent substantial evidence in support of the decision-maker's decision. In the next

paragraph it goes on to -- “Ms. Gelabert's testimony appears sufficient to uphold the

Commission's findings on the requirements for active pedestrian usage frontage and linear uses

were met.” So there again, it fits the -- it meets the test that was stated earlier. And then it goes

on and says that the -- “Consequently, Ms. Gelabert's testimony finding that the setback

requirements were met because the parking spaces were set back 85 feet is sufficient to establish

bases of fact from which the Commission can conclude that Walmart's project comply with this

requirement.” So your argument where you say that it is a variance and not a special permit -- I



want to make sure I use the correct words. I believe I was right. That it's a variance and not a

special permit -- in the way that the Court ruled was -- well, they didn't -- I want say they

commented on your testimony, but they moreover commented on the -- at that level, the

respondent -- and let me finish.

Mr. Salvage: Yes, sir. Yes, sir.

Vice Chair Hardemon: Because it was saying that everything that was put on the record at that

time met the test, but then it goes into “nevertheless,” and this is the part where you've hung

your hat. “The off-street loading requirement shall be as follows,” and it goes into the berth, the

three berths total. “At the hearing, Ms. Gelabert testified that this provision has always been

interpreted as the minimum amount.” So she's saying that this is the minimum amount.

“Consequently, she testified that the project provides for five loading berths, which is in

compliance with the request” -- so she's making an argument here, but the case law was very

clear and the Court ruled as you stated, that when the statute or rule is unambiguous and

conveys a clear and ordinary meaning, there is no need to resort to other rules of statutory

construction. So in the past arguments, from the way that I see -- and I would like my

Commissioners to consider -- in the past arguments, it's saying “we defer to the Commission,”

and there were facts that were provided that were sufficient to meet the test. In this case, they're

saying they don't defer to the Commission; they defer to the unambiguous clear meaning of the

statute. And the Court was, as it usually is, smart enough to say, “The plain meaning of the

word 'total' would not permit it to be read as minimal.” You gave examples as far as children.

They gave -- they say that the Court, meaning -- says, “The project provides for five berths and

the Code requires three berths total. This finds that the Commission's resolution finding that the

project complied with the requirements under the Code is a departure from the essential

requirements of the law.” So you're saying the essential requirements of the law. Now, it doesn't

then say because they departed from the essential requirements of the law that the application

must be resubmitted as if it was a -- to be resubmitted as a variance. It does not say that. What

it goes on to say is that “For the above-stated reasons, we have quashed the Commission's

decision as set forth by resolution and remand this cause for proceedings consistent herein .”

Had the court, to me, in my reading of this said -- after they said the City departed from the

essential requirements of the law, if it then said that the applicant at the time must then resubmit

their application in accordance -- just the same way as they mentioned the re-- the resubmittance

[sic] of the application in your argument. Had it said that, I would think that then there would

need to be some -- resubmittance [sic] of the application and that portion has to be reconsidered.

I don't see that. What I see from when I read this is that the -- everything was -- the process was

correct. It's just that in the last consideration where you're talking about berths, that the City

varied from the plain reading of the word “total” and incorrectly allowed five when it should

have been three as a special class permit would allow, so here we are now deciding whether or

not three fits within the special class permit, because that's the stage that we're back in now;

we're deciding about the special class permits. And a special class permit in the language that

we presented before us now requires three, and I've heard sufficient evidence from the -- from

staff and from the applicant that three is what they've been provided. Commissioner Carollo.

Commissioner Carollo: Thank you, Mr. Chairman. And let me bring it down to laymen's terms,

and as you know, I'm not an attorney, but I just want to put it in laymen's terms. It seems to me

that the Court has dictated that, yes, there was a variance; that the variance is that there was five

instead of three. So if -- fix it and then you have no variance; therefore, then you're allowed a

Special Class II Permit to consist. The reason why it may not be allowed is because we did file a

variance. The variance was you did five total instead of three. Fix it. So you fix it. You -- we do

three variance -- I'm sorry, three loading berths, then you have no variance; therefore, it's

allowed, because the rest of the process was correct. That's the way I'm reading it or the way I'm

understanding it.



Vice Chair Hardemon: And now -- and from what --

Commissioner Carollo: And I --

Vice Chair Hardemon: -- Commissioner Gort --

Commissioner Carollo: -- I'm putting it in laymen's terms.

Vice Chair Hardemon: No, and I think, in laymen's terms, that was very well stated.

Ms. Méndez: Very articulate --

Chair Gort: Very well.

Vice Chair Hardemon: Yeah, yeah.

Ms. Méndez: -- laymen's terms.

Vice Chair Hardemon: Well stated.

Ms. Méndez: Thank you.

Vice Chair Hardemon: The lawyers, though, we don't typically do that, right? We do it for the

record, right? But I would say that --

Commissioner Sarnoff: (UNINTELLIGIBLE) because I got to tell you, if you're a little lower

than me, I may just hire you.

Vice Chair Hardemon: Now, had the applicant come to us today and said, well, they wanted five

and not three, then they would be requesting a variance.

Commissioner Carollo: Right.

Vice Chair Hardemon: And then that application --

Commissioner Carollo: It would (UNINTELLIGIBLE).

Vice Chair Hardemon: -- process would be --

Commissioner Carollo: Right.

Vice Chair Hardemon: -- different, and I don't see that happening today. I mean, that's the way

that I read it.

Mr. Lydecker: You've described it better than I could, and I wholeheartedly agree. I would -- if I

could just say one quick word --

Vice Chair Hardemon: You're recognized.

Mr. Lydecker: -- Mr. Vice Chair?

Vice Chair Hardemon: Sure.

Mr. Lydecker: Is -- and in that process, we're not moving one light switch. We're not moving a

wall. We are not move a thing. Not one paint swatch. Everything stays the same; just going to



have three, period.

Commissioner Sarnoff: All right.

Vice Chair Hardemon: I'm willing to entertain a motion of the Commission.

Commissioner Sarnoff: I'll take a shot, Mr. Chair, if you'd like.

Ms. Méndez: Well --

Commissioner Sarnoff: I would move --

Ms. Méndez: Are we --

Vice Chair Hardemon: I apologize.

Chair Gort: (UNINTELLIGIBLE) public --

Vice Chair Hardemon: I did not have the public hearing.


Vice Chair Hardemon: I need at this time the recon -- to open the floor for public hearing, and I

will recognize those who are going to be called by the City Clerk.

Mr. Savage: And Mr. Chairman, can I just say one thing, and I just want to thank you for going

through the opinion. I do appreciate the extra time that you took. I respectfully do disagree with

the reading. I do think that the process is, in fact, different and should have been different and

should start from scratch. But I do want to thank you for reading the opinion as carefully as you

did. And so with that, I will conclude my remarks. Thank you.

Vice Chair Hardemon: Thank you very much.

Todd B. Hannon (City Clerk): The first speaker is Peter Ehrlich.

Peter Ehrlich: Good evening, Mr. Chair, Commissioners. Peter Ehrlich. My address, 720

Northeast 69th Street. This appeal has already been heard and the Commissioners voted 3-0 to

deny the appeal. The City Attorney stated the -- plaintiffs that were bringing this appeal today.

She mentioned the plaintiff that contradicts the plaintiffs that were mentioned in your item on

PZ.10. On PZ.10, the appellants are listed as Grant Stern, Peter Ehrlich, Rosi Barrios. Your

City Attorney said the appellant today was somebody named Jacob Pfeiffer [sic]. Jacob Pfeiffer

[sic], who will be speaking later today, he's one of the appellants that -- or one of the plaintiffs

in the court case that you have a copy of, so there's a difference in the -- the plaintiffs in the court

case are slightly different than the appellants, and that's a contradiction that the City Attorney

might not have been aware of. I would just like to say that we hope you will -- even though we

didn't ask for this appeal to be heard today, and we weren't notified that it was going to be

heard; we just -- we saw it on the agenda. Without any heads up whether we'd be in town and

able to show up today, we hope you'll affirm the appeal. And if you do, we think it'll lead to a

better project. You know, many times in the past you've denied projects and asked for projects to

come back with changes. We think that if it happens in this case, you will see a better project.

For a handful -- for six or eight different reasons, the project can come back far better for the

City, far better for the neighbors in the Midtown Miami area. And there's a few other people

that'll be talking today. On one quick point -- I don't know how many of you remember JCPenny

that submitted an application for this site a number of years ago, but their application was for a

store of a little over 100,000 square feet; this Walmart Store is over 200,000 square feet.



Vice Chair Hardemon: Thank you very much, sir. I really appreciate your time.

Mr. Ehrlich: Thank you very much.

Vice Chair Hardemon: And Madam City Attorney, if you want to clarify for the record the

differences between the respondents and petitioners --

Ms. Méndez: The --

Vice Chair Hardemon: -- on each level.

Ms. Méndez: Right. The information that I stated at the beginning was the court process and

how it went through the process, and when it went to the Appellate Division of the Circuit Court.

Here today, because it was remanded back here before the Commission, it's remanded in the

same process that it came up through this -- to the City Commission originally and those

appellants at that point. So that is the distinction, which really does not make a difference, but I

just wanted to clarify that for the record.

Vice Chair Hardemon: Thank you very much. Mr. Clerk.

Mr. Hannon: Jacob Pfeffer.

Jacobs Pfeffer: Good evening. Jacob Pfeffer, 401 Biscayne Boulevard. I was actually the lead

plaintiff in the court case, as we've corrected on the record now. It's been three years since we

started this process. In that time, Commissioner Suarez, I think you've had your first child; so

have I.

Commissioner Suarez: Congrats.

Mr. Pfeffer: Thank you. Commissioner Sarnoff, you've grayed your hair a little bit; we have a

new Commissioner, so this process has been long, but there's a reason it's been long: Because

we're trying to get it right. And I'd like to correct something that was stated by the Planning

director, or at least clarify. You stated earlier that a traffic study was submitted as part of this

Class II Special Permit application. We've been asking for that for years, and it's never been

shown to us. As far as we know, that has not been completed. And when you ask, “Why do we

oppose a Walmart?” it's the scope of the store that we oppose, not the brand that's on the wall,

on the façade. This store and trade area that it pulls from will create a significant traffic impact

into the area that is a pedestrian area on a bike-friendly area and in a connecting area from

Design District to Wynwood. Furthermore, that Miami Avenue traffic is already horrendous, and

bringing in all the traffic from Miami Beach will only exacerbate the problem.

Commissioner Suarez: Can we get a copy of that at some point? Because I think it's a fair

request. I mean, if it exists, you know, it will be -- it's a fair request, if it's part of the public

record.

Mr. Pfeffer: Well, I think that will be irrelevant also for this process. Furthermore, today we

haven't actually been shown -- and I don't know if you've seen it on the record yet. We just found

it today on the website, even though it was only submitted five days ago on a Saturday, but the

revised plans. And when they've taken these five berths and made them three -- I'm not sure if

you've seen this yet, and I would love for it to be placed on the screen, if possible -- all they did

was with a red pen mark it off and then call it a staging area. When I was a kid, I got an "F" on a

test once on a red pen, and all I did was take a red pen and drop a little line down, and all of a

sudden, that became an “A,” and that's what they've done here. They've taken an “F” and tried

to turn it into an “A,” but ultimately, it's still an “F,” because where will the enforcement be to

make sure that those berths -- those staging areas won't still be used as berths; that when trucks



are stopped there and when the truck driver has a deadline, that they're not going to use their lift

gate to bring merchandise down and load it in? So the fact that you can just all of a sudden

change the vernacular and call it a staging area doesn't mean that it ultimately can't still be used

as a loading berth. Finally -- and forgive me if I'm running out of time, but I would appreciate a

little bit of leeway on this -- on October 22 of 2006, in the Coconut Grove Grapevine, a

community newsletter, a letter to the neighborhood was written where, Commissioner Sarnoff,

you wrote there: “There's still work to be done. But all of you out there, please take stock that

Home Depot failed to follow the law. Why? These reasons could be anyone's guess.” And you

went on to say, “When they began to retrofit, the City failed to make them follow the law. A

judge will easily find they failed to follow the law and they will lose their permit.” These

circumstances are exactly the same: They have not followed the law. They should have gone

through a Master [sic] Use Special Permit; judges have agreed with them, and unfortunately, we

are wasting City resources with this hearing, because ultimately, we're going to take it back to

the court again and have them illuminate what their decision was.

Vice Chair Hardemon: Thank you very much.

Mr. Pfeffer: Thank you for your time.

Vice Chair Hardemon: Absolutely.

Commissioner Suarez: Can you -- I --

Vice Chair Hardemon: Commissioner Suarez, you're recognized.

Commissioner Suarez: Yeah. I just -- because I think I asked a question, and I want to make

sure that he answered it, but he asked it again, and he asked it in a slightly different way so I

want to make sure you answer it again, which has to do with the difference between a loading

berth and a staging area. Can you describe why it is not simply, you know, just as he described,

changing the letter from an “F” to an “A?” Can you describe why that is a difference that is

significant versus something that is not?

Mr. Garcia: I'm happy to do so, sir. And should I forget, which I don't expect to, please remind

me to go back to the traffic study --

Commissioner Suarez: Yes.

Mr. Garcia: -- question, which is also relevant. So I think the best way I can hopefully put this

issue to rest regarding what is a loading berth and what isn 't a loading berth is to be very factual

and to read into the record the definitions, which I alluded to previously, although I

paraphrased; put into the record verbatim the definitions for loading berths provided by Zoning

Ordinance 11000, which, in this case, applies since this is in Appendix “C” of Miami 21. This

makes sense for the record, and I know a number of people are following me, but these are the

rules that apply, suffice it to say. There are four terms involved: First, I will read the definition

for “berth.” It says, “See stall/berth or loading facility, offstreet or loading space, offstreet.”

Period. Then that refers us to “loading facility, offstreet.” I'll read the definition for that. “A

building, structure, and area used in the operation of terminal facility. See also 'loading space,

offstreet, and berth/stall.'” Not very helpful; I'll read on. “Loading space, off street. An area in

which goods and products are moved on or off a vehicle, including the stall or berth and the

apron or maneuvering room incidental thereto”; a little more helpful. Lastly, “stall/berth”

defined as “The space within which vehicles are placed during actual loading or unloading

operations.” It is this last definition that I think is most helpful. It is certainly, at least, to me as

the ultimate signer of the document, and I think is the one that's most easy to explain. In the end,

Commissioners, the plans that are submitted to receive approvals of Class II Special Permits are,

yes, in fact, lines on a piece of paper. That is what they are. Those lines on those pieces of



paper have meaning, and when we approve a set of plans, lines on paper, and we stamp and sign

our names on it, that's what we mean to approve. In this case, the appropriate method to correct

the defect that the Court found when it found that there were five loading berths and there should

have been three, the correct way to address that is to, in fact, strike out, delete, erase, otherwise

remove, the two excess loading berths that the Court found defective and replace those with

other uses that are not loading berths. We thought and we recommended to the applicant, and

we find in full compliance that to have staging areas to support the loading and unloading of

wares from these trucks that will be parked on these three spaces that that, in and of itself, would

be helpful, and therefore, we have approved it. The corrections are satisfactory, and we think

that it is not going to have any impact whatsoever in the proper functionality of the store as

proposed and as submitted to you in the plans on the record. I'm happy to add to that, if

someone wants to ask additional questions. Other than that, I will say as pertains to traffic

impact studies, operational studies, et cetera, and I'll be a little clearer than I was perhaps the

last time for everyone's sake. The Class II Special Permit process is a very intensive review

process. Someone else -- some other speaker alluded to the fact that it took two years in this

particular case. It certainly took two years and many meetings. And so, as part of that process,

we referred -- this is on the record -- to many departments, many agencies, but in particular, we

referred to the Capital Improvements Program, which has the Transportation Office within it, to

the Public Works Department, and part of their review of the plans submitted precisely delves

into how this store is going to function or the particular building is going to function , and they

gave us recommendations as to whether it is in compliance or not. It is that kind of study, it is

that kind of review, intensive as it is, that I am referring to when I say that, “Yes, it has been

vetted, it has been reviewed, and it has found to be in compliance.” Those reviews were done

certainly with the experts that the applicant brought to explain whatever issues were attendant to

the application, and they were discussed in many public meetings and public hearings, and

again, we have found those and make reference to those in finding the plans that have been

proposed satisfactory and worthy of approval.

Vice Chair Hardemon: Okay.

Grant Stearn: Thank you, Chair. My name is Grant Stearn.

Vice Chair Hardemon: You're recognized, Mr. Stearn.

Mr. Stearn. Thank you. I've got some handouts for everybody, so if you'll indulge me for a

second. What you're receiving is two packets. One packet contains Walmart's 11-page legal

brief arguing why the five berths depicted in the prior design that Walmart admits has not

changed even one iota were five berths. Now they're simply drawing some red lines on a piece of

paper and claiming that these five berths are now three, and I posit to you, sirs, if it walks like a

duck and it quacks like a duck, it is, in fact, a duck. Now, there's a second packet that you're

going to receive in a moment that contains some information that you may turn a stone ear to

considering that you believe this may not be a de novo review, but it contains evidence of one

major variance and one probable variance as well. To return to my opponent's words, he clearly

said to you just a few minutes ago that the UDRB found unanimously against us. Well, that's a

complete mischaracterization of the truth. They found unanimously against Walmart. They

named only two conditions, but they named many things in their oral arguments that were not

named in the resolution, and had they been named in the resolution would have been already

resolved. Now, it is true, the Court found in favor of us. And one thing that nobody has

mentioned tonight is that the Court awarded us quashal. Quashal is the highest remedy. And I

would like to play 30 seconds of the oral argument where the judges and counsel, Paul Savage,

discuss “What does quashal mean?” because this is key. “Quash and remand for proceedings

consisting herein,” let's listen to the proceedings. This is 30 seconds.

Note for the Record: At this time, an audio-visual presentation is made.



Mr. Stearn: So the judges believed when we asked for quashal that we were asking to nullify the

permit and send them into the variance procedure forthwith if they wished to continue. If they

wish to withdraw their special application after the final decision that was issued last August ,

they're also welcomed to do so. And Article, I believe, 1311 would apply and a 12-month waiting

period, for a substantially similar application does exist. So you can understand why they' re

trying to force this through the wrong way. This is a miscarriage. This permit has been nullified

by the court system. To hear it today without the proper referrals, without going to the PZAB, it's

not right. And the documents that I gave you, that I know you may turn a stone ear to, show that

there is a very important requirement central to Midtown Miami's functioning as a

pedestrian-friendly area. It's a lot of pages, but it's not a lot of information, and I apologize for

not bringing the monitor so I can show it on the television. But it's called -- it just says, “Corner

entrance on open space interpretation guide,” and what it says is, “All ground-level space

intended” -- “designed for pedestrian-oriented uses shall have external entrances directly

accessible from public sidewalk space. At least one external entrance shall be located along the

frontage of the primary street or on the corner intersection of the primary street and any other

street or” -- and this is the important part -- “the frontage of public open space.” Well, there is

a track on the west side of this property that is a six-foot-wide private park owned by the CDD

(Community Development District) that -- Mr. Suarez, you chair the CDD as well? No, just the

CRA (Community Redevelopment Agency). But the Community Development District, declared

under Chapter 190 of Florida Law and ratified by the Miami-Dade County, owns the six feet

west of the Walmart application. Their garage entrance should be a store entrance. It says very

clearly, it should be glass. If you look at every other corner that meets the criteria in this packet,

they are all store entrances, even if there's no road.

Vice Chair Hardemon: Thank you very much for your time. I really do appreciate it. Your time

has expired.

Mr. Stearn: Thank you very much, Mr. Hardemon.

Vice Chair Hardemon: You're very welcome. And I do have a question for -- and Madam City

Attorney can answer it; counsel, Mr. Lydecker, or even Mr. Savage, if you have any response,

that'll be great. The argument that the speaker just before just elevated was basically the fact

that where we are now, the quashing -- and I believe you made this argument -- the quashing of

it makes it that a new application for even the special permit needs to be put before this body, at

least be heard by PZAB, et cetera, et cetera. Now -- so my question specifically is do you have

any case law that indicates that any time something is quashed, if a special use permit -- or a

special permit is quashed by -- let's say the Third DCA -- if that decision is quashed, that they

must go back then through a full process? Do you have any case law that states that?

Mr. Savage: Well, the case law -- I only -- well, there are rules of appellate procedure and many

cases that say that you must follow the mandate of the Appellate Court.

Vice Chair Hardemon: I don't -- I understand that argument.

Mr. Savage: And (UNINTELLIGIBLE) --

Vice Chair Hardemon: You made -- because you made that argument earlier. But specifically, if

-- I want to know -- and I believe that, Commissioner Sarnoff, you understand where I'm going

with this. If there's any case law that exists that says that any time in this situation, with these

types of facts, that there is a quashal -- that it's been quashed -- that there must be now a new

application that goes in that means that we need to make a decision on or whether or not we're

just -- as is stated in the opinion of the Third DCA, that we remand this cause for proceedings

consistent therein? Because that word “proceedings” is -- I believe that becomes the phrase that

we're now concerned about, proceedings. (UNINTELLIGIBLE) just matter -- are we saying that

it is this proceeding where we're considering everything de novo, or is it proceedings as far as a



new application being submitted for this special permit?

Mr. Lydecker: For me?


Mr. Lydecker: Thank you. Is -- there's been no -- we've done a lot of research. There's no such

case law that we've seen. And it's one of those areas where I think you look at and you'd said,

“Well, there's probably no case law on that because it just doesn't make sense.” Think about it.

We are to do proceedings consistent with the opinion. The opinion just went on for 10, 12 pages

saying that we did everything right, so you're going to send us back to the UDRB to decide what?

Either it's waived or it's already been decided by the Appellate Court, been decided by

Commission; in which case, you're asking a committee to overrule the Appellant Court.

Ms. Méndez: And if I may just briefly? And I think this will resolve most questions, and we can

just hone in on the three issue, three-berths issue. “For the above stated reason, we hereby

quash the Commission's decision as set forth in resolution R-13.” It doesn't say “quash

everybody's decision.” It doesn't say “all decisions.” It doesn't say “start all over.” And more

so, we are already having a de novo hearing today on the one issue that they disagreed with . So

we're really beating a dead horse today.

Vice Chair Hardemon: Well, thank you very much, Madam City Attorney. I think what you just

stated, in addition with having no case law that will go towards Mr. Savage's point, I'm satisfied

with the response. So what I'd like to do is continue the public hearing. You still -- oh. So

there's no further persons that would like to speak on the record for public hearing? You're

recognized, ma'am.

Renita Holmes: Madam Holmes, for the public. And I've watched this, even beginning with you

-- Commissioner Suarez not here when $33 million was spent that was supposed to be spent on

another side of town to do economic opportunity for a community, so I can understand starting

all over again and then losing. But as I read, according to proceedings -- and you asked the

question -- asked, answered -- if this has been quashed, and anything else was quashed, and any

other applicant decided that they wanted to modify, or remand or change anything on this local

level or where it's been given you back the authority to decide what is fair or what is reasonable

and to reconsider data according to the -- by fine Administrator for the City; anyone else,

whether it be JC Penny, me, or your momma, they got to reapply. And when I look at a Walmart

over here in a area that's doing very well in my community from a personal note, and I see one

over here that's adjacent to a residential community that has issues with traffic impacts, that

talks about environmental, which I hardly get an answer for, even in my previous inquiry, Mr.

Chair, then I think we have to reconsider some -- what is it to not give information now to the

community because some “what ifs” and some partial things have been said here that I 'm not

clarified as the public -- and it was the Administrator that stated that it is a public process , and

in all fairness, which is what law here -- a rule here -- all fairness is to make sure that everyone

within the Commission's charge receives rightful information, equal opportunity, and to hear the

modifications and the impact reports. I leave you with that. What does it harm? We've invested

ourselves to argue to stay in place because it's an economic opportunity, but in regards to what

the community and you represent, I have not heard all of the true answers about the berth, the

frontage, the west, the east, and I have not been given a opportunity to say that I want this to set

precedence as the way when people say one thing and it turns out that it 's not so clear that when

they come back and clarify it without giving it to the public --

Vice Chair Hardemon: Madam --

Ms. Holmes: -- that I'm being represented. And thank you so much, sir.



Vice Chair Hardemon: Thank you very much for your time. Seeing no other persons here for

public hearing, I'm going to close the public hearing.

Mr. Stearn: Sir, may I request, respectfully, two more minutes, please, just two more minutes?

Vice Chair Hardemon: And I will say this to you: We granted you two minutes, another young

woman from the community gave you another two minutes, so at this time, procedurally, I'm not

going to allow you for another two minutes, unless there's some objection from our

Commissioners, and I don't see any. So at this point, I'm going to close the public hearing at this

point.

Commissioner Suarez: Give him two minutes. What's two minutes?

Vice Chair Hardemon: You want two --

Commissioner Suarez: Give him two minutes.

Vice Chair Hardemon: (UNINTELLIGIBLE).

Commissioner Suarez: (UNINTELLIGIBLE) two minutes. (UNINTELLIGIBLE).

Vice Chair Hardemon: So you get two minutes.

Mr. Stearn: Thank you, Commissioner. I appreciate it.

Chair Gort: (UNINTELLIGIBLE) minutes.

Mr. Stearn: Look, I would like just to point out one more thing, and I appreciate your leeway

very much, Chair. In the brief that I provided from Lydecker where they spent 11 pages arguing

that there were in fact five bays in the exact same design before you today, minus the markings,

claiming that they were accessory loading berths, or whatever the heck they want to make up

from the Code. This is 11 pages claiming that there were five berths in the project. My opponent

just said they did not even change anything, not a single thing; and further, within the conclusion

on page 11, they did not request a quash and remand. They requested a remand. And they

requested remand for additional findings by the Commission, written findings in other words.

They did not request a remand to change the number of loading berths. They did not request

quashal. They would have requested quashal if that was the thing for them. They requested a

straight remand; they did not get it. Why would they leave the Planning director's final decision

open in a Class II Special Permit is very simple. From here, they can only proceed into the

variance procedure or withdraw, because a final decision has already been created and you

cannot amend the final decision. Final is final, and we will have to define “final” in our appeal.

I'm sure you will disagree on the -- that “final” means “not final,” but they did not request

quashal. We received quashal as our relief for all of our efforts. The City is wasting its time. It's

wasting legal staff time. And lastly, they have denied the traffic study to us for three years. I've

made repeated requests. They're in violation of Chapter 119 of the Sunshine Law, and I'm very

disappointed the City approved this plan on Saturday, days after the notice was given. We were

noticed and then the approval was given to Walmart. Approval on the 15th; notice on the 9th.

How wrong is that? Thank you very much for your leeway.

Vice Chair Hardemon: Well, thank you very much, sir. I'm going to close the public hearing at

this time; open up the floor for discussion amongst the Commissioners. Commissioner Suarez,

you're recognized.

Commissioner Suarez: Yeah. I mean, I'll just say, look, you know, if this goes back for judicial

review, which I suspect it might, the question that's going to -- the judges are going to look at is,



which is why I asked you that specific question, which is if you re-categorize the berths in some

other way, is that a legally justifiable re-categorization? It's your expert opinion that it is. A

judge may or may not agree, and certainly, they have every legal right to exhaust their legal

remedies, as they have effectively. You know, again, Walmart just did a -- I think, the first store

in the City of Miami in my district. I was actually very happy that they did. It was a substantial

improvement over what was there, and they did it very quickly, very efficiently, and they were a

good partner. They did hiring out of the area. I mean, they did a lot of things. Again, it's a

commercial use of a commercial structure. Maybe if I had, as Commissioner Sarnoff would say,

my druthers, maybe I would put something else there. But you know, they have control of that

site through their arrangements with DER and, you know, and I think there have been many

efforts to try to make it as appealing as humanly possible, given the constraints, and I think that

they have, you know, in fairness to them, been somewhat reasonable in that. Whether ultimately

they are -- you know, the case turns on the issues that you guys feel, you know, we'll see. But I

think the Court, in its ruling, was very specific and said, essentially, that everything was done

properly, with the exception of the number of berths that were approved. That's it. And if the

number of berths approved are in conformity with the ruling, then it's an acceptable application.

Vice Chair Hardemon: Thank you very much. And the Chair is willing to accept a motion at this

time.

Commissioner Sarnoff: And Mr. Chair, let me just say two things. There were two occasions

that, as a Commissioner, I sat up here; did not listen to the City Attorney's advice -- happened to

be Maria Chiaro -- and I decided that I knew better than the Court of Appeal, and that was in

something called Eisenberg versus City of Miami, and then Dougherty versus Eisenberg versus

City of Miami; both times it came back because the Court said “you just don't follow our

instructions,” essentially, in the way Carollo would like to hear it. And you want to know what?

Chiaro said to me, “You're going to get sanctioned by the Court or you're going to get in trouble

with the Court, Commissioner.” And I just didn't listen. And you know what I did? I wasted

City time. I wasted City services. I wasted taxpayer dollars, because I used our City Attorney

because I refused to listen to the Court of Appeal. So now here's my motion: I move to deny the

appeal because the doctrine of the law of the case that this matter is before the Commission on a

limited issue. Simply stated, that doctrine is that the -- is that those points of law adjudicated in

a prior appeal are binding in order to promote stability of judicial decisions and to avoid

piecemeal litigation. That happens to be Bueno versus Bueno, 677 Southern Second Third,

Florida Third DCA 1996 opinion. I've already cited you Dougherty one. I've already cited you

Dougherty two. When this cause was before the City Commission on November 2013, the

Commission approved a Class II Special Permit. There was an appeal, and the Circuit Court

entered a written opinion and affirmed on all but one of the issues. That Circuit Court, sitting in

its appellate capacity, ruled that: One, the Planning director was not bound by the

recommendations of the NET Office and UDRB; two, the written findings of the Commission

were sufficient as a matter of law; three, the project met the 65 percent pedestrian use frontage

requirement; four, the project complied with the liner use requirement; five, the project was in

compliance with the setback requirement for parking facilities; six, the project satisfied the

building continuity requirements. The Court also found that the number of loading berths could

not exceed three because of the language of the Zoning Ordinance. The doctrine of the law of

the case says, “Points of law adjudicated in a prior appeal are binding. Questions of law

actually decided on appeal must govern the case in the same court, in the same trial, through all

subsequent stages of the proceedings. Under the law of the case, the Commission has no

authority to change these rulings.” For the reasons stated by the Circuit Court, sitting in its

appellate capacity, the City's Code requires no more than three loading berths for this project.

Based on the record evidence presented at this hearing and the previous hearing on November

21, 2013, including the modified plans of the applicant and recommendation of the Planning

director that this project, as modified, is in compliance with the City's Zoning Code and Zoning

Ordinance, I move to affirm the Class II permit, as modified, to reflect three loading berths in

compliance with the City Code and Zoning Ordinance, and the decision of the Circuit Court



sitting in its appellate capacity.


Vice Chair Hardemon: And to clarify for the record, so we have a motion to deny the appeal and

affirm the Class II permits; is that correct? Yes. And I'm -- I'll yield to you, sir, please.

Mr. Garcia: Thank you for allowing me to make a brief statement, and I think it is important

and, perhaps, appropriate to hopefully clarify something that may be confusing, and it is this: I,

as your Planning & Zoning director, stand corrected by the Court. I want to assure this

Commission that the mistake made by your Planning & Zoning Department is not to have

overlooked a variance. That is a rather significant issue, and I'm here to tell you that has never

happened and it will never happen, at least under my watch. I'm positive of that. The reason we

stand corrected is because this Court has found that a long-standing interpretation of the Code,

which says that the language in Section 627.2.15, Offstreet Loading, which says, “For

nonresidential floor area up to 250,000 square feet, three berths total.” I'm humbled. I, my

predecessors, had always opined that that meant three was a minimum and we could certainly

exceed it. It turns out, as the Court says, that the plain meaning of the word “total” makes it so

that it cannot be interpreted reasonably as being more than three. We stand corrected. We're

humbled by it. I'm here to tell you, though -- and this is the important thing -- that had this been

correctly interpreted to mean that only three loading berths were required, you would have had

before you one year ago exactly the project that you are affirming today. That's all I have.

Mr. Stearn: The public record, as I understand it, is --

Vice Chair Hardemon: Sir --

Mr. Stearn: -- (UNINTELLIGIBLE).

Vice Chair Hardemon: -- I will not allow you to speak. You're not recognized at this time.

Mr. Stearn: Yes, sir.

Vice Chair Hardemon: The public hearing has been closed. Right now we're on a matter of

discussion for the Commissioners to consider whether they will vote “yea” or “nay.”

Commissioners. No further --

Commissioner Suarez: I think (UNINTELLIGIBLE).

Vice Chair Hardemon: The question has been called.

Commissioner Suarez: I think Francisco just -- you know, that was actually the most poignant

statement you made the whole entire --

Vice Chair Hardemon: Yeah, that was -- it was beautiful, but that's what the courts are for. But

the question has been called. City Clerk.

Mr. Hannon: Would you like to call the question or a roll call?

Vice Chair Hardemon: The question was called.

Commissioner Suarez: He wants a roll call.

Vice Chair Hardemon: It was called by --



Commissioner Suarez: -- (UNINTELLIGIBLE) whatever.

Mr. Hannon: Roll call?

Vice Chair Hardemon: -- Commissioner -- it needs a roll call vote.

Mr. Hannon: Sure.

A roll call was taken, the result of which is stated above.

Mr. Hannon: The resolution passes, 5-0.

Vice Chair Hardemon: Meeting adjourned. Thank you.

Mr. Hannon: Now, Commissioners, we still have to go back to the regular, so we just need to

flip the tape; give me just two, three minutes. We still need to go back to the regular meeting.

END OF PLANNING AND ZONING ITEMS

ADJOURNMENT

The meeting adjourned at 9:06 p.m.
