3 Response of 5333 Collins Acquisitions1
BEFORE THE CITY COMMISSION OF
THE CITY OF MIAMI BEACH, IN MIAMI-
DADE COUNTY, FLORIDA
Matter No. SM-2022-001
Lower Tribunal File No.:
DRB21-0694
IN RE: 5333 COLLINS AVENUE
DESIGN REVIEW BOARD APPROVAL
SUBMITTED BY:
5333 COLLINS ACQUISITIONS, LP
RESPONDENT
___________________________/
RESPONSE BRIEF OF RESPONDENT 5333 COLLINS ACQUISITIONS, LP
2
TABLE OF CONTENTS
INTRODUCTION ........................................................................................ 3
STATEMENT OF FACTS ........................................................................... 6
The Property .......................................................................................... 6
The Project ............................................................................................. 7
Application/Staff Review ........................................................................ 7
Design Review Board Hearings ........................................................... 11
JURISDICTION ........................................................................................ 18
STANDARD OF REVIEW ......................................................................... 18
SUMMARY OF ARGUMENT .................................................................... 19
ARGUMENT ............................................................................................. 20
A. The DRB's Order is Supported by Competent Substantial Evidence ... 20
1. Competent Substantial Evidence Standard .................................. 20
2. The Applicant Met Its Initial Burden By Showing that the
Application Comported with the Applicable Criteria ......................... 22
3. The Record Includes Other, Additional Competent Substantial
Evidence Showing the Project Complies with the City's Design
Review Criteria ................................................................................ 23
4. Evidence Presented by Appellants is Immaterial on Review ........ 26
B.The DRB Order Follows the Essential Requirements of Law .............. 27
1. The Order is Based On Substantial Competent Evidence ........... 28
2. The DRB Did Not Improperly Delegate Its Authority to City Staff . 29
CONCLUSION .......................................................................................... 32
3
INTRODUCTION
5333 Acquisitions, LP (the "Applicant"), hereby responds to the
administrative Appeals of The Carriage House Condominium Association,
Inc.; The Amethyst Condominium Association, Inc.; and Thomas Hahn and
David Sebbag; (all together, the "Appellants").1 Appellants challenge the
December 17, 2021, Design Review Board ("DRB") decision approving a
new residential structure at 5333 Collins Avenue in Miami Beach (the
"Order"). The Order grants design review approval of a new 17-story
multifamily residential building, to replace an existing 14-story multifamily
building to be demolished (the "Project").
The Order approves, with conditions, a magnificent structure designed
by world-renowned architectural firm Office for Metropolitan Architecture
("OMA") and esteemed landscape architect, Neil Porter, of Gustafson Porter
Bowman. The Applicant retained a world class team to bring a first rate
product to Miami Beach. The Project, as designed, meets all requirements
under the City's Code of Ordinances (the "Code"), and thus no variances are
11 The Carriage House and Amethyst Condominium Associations (the
"Condo Appellants") filed a joint Petition, and Hahn and Sebbag (the
"Penthouse Appellants") filed a joint Petition. Each Petition adopts the facts
and arguments presented by the other. Ms. Rebhuhn, a former individual
Appellant, withdrew her appeal after the Penthouse Appellants' Petition was
filed.
4
required. The Project complies with all applicable zoning regulations,
including height, floor area ratio ("FAR"), setbacks, parking and density. In
fact, the permitted density would allow the Applicant to develop
approximately 365 units at the Project site, but Applicant proposed a
maximum unit count of 100 which is less than a third of what is permitted as
of right under the Code.
Appellants ask the City Commission (the "Commission") to reverse the
DRB Order or, in the alternative, to remand it with instructions for review
consistent with the requests set forth in their Petitions. Appellants claim that
the Order is not supported by competent substantial evidence and that the
DRB failed to follow the essential requirements of the law. However, the
record shows that these two arguments are baseless. The Appellants real
argument is that they disagree with the DRB Order and are displeased about
the impacts it may have on their property. These are not grounds for reversal.
Ultimately, Appellants fail to state a lawful basis for reversal or remand.
Under Section 118-9 of the City's Code, the Commission may reverse
a DRB decision only if it finds that the DRB failed to provide procedural due
process, failed to observe the essential requirements of the law, or failed to
base its decision upon competent substantial evidence. It is the Appellants'
5
burden to show evidence of these failures. They have not and cannot met
their burden.
The Order is clearly based on competent substantial evidence. Before
the subject application reached the DRB, and over the course of several
months, the City's professional staff scrutinized the Project pursuant to the
applicable Code sections and provided extensive recommendations for
revisions to the Project in order for it to meet the all Code requirements. The
record plainly shows that the Applicant implemented these
recommendations. The DRB then conducted two full public hearings, where
they provided extensive comment on proposed plans and placed detailed
conditions within the Order that addressed all of the applicable Code
requirements. The Order's conditions reflect the DRB's findings, are
consistent with the Code and are a familiar DRB practice, and provide ample
direction for implementing and enforcing the Order.
Further, the DRB indisputably followed the essential requirements of
the law. When considering a design review application the DRB must
consider and apply the criteria listed in sections 118-9 and 133-50 of the City
Code. The DRB and City staff did just that.
The analysis of City staff, the detailed transcripts of the DRB
proceedings and presentations before it, and a record of abundant evidence
6
all show that procedural due process was afforded, the correct standards of
law were applied, and the DRB's decision was supported by competent
substantial evidence. Accordingly, the Board's decision must be affirmed.
STATEMENT OF THE CASE AND FACTS
The subject of this Appeal is the DRB Order associated with application
number DRB 21-0694. The Order is dated December 17, 2021 and was
rendered on February 3, 2022. (AP: 745 - 750). 2 The Order grants design
review approval of a new 17-story multifamily residential building, to replace
an existing 15-story multifamily building to be demolished (the "Project"). Id.
The application for DRB approval was filed by 5333 Collins Acquisitions LP.
A. THE PROPERTY
The subject property is located at 5333 Collins Avenue, Miami Beach,
Florida (the "Property"). The Property is approximately 106,015 square feet
(2.434 acres) and is located within the RM-3 Residential Family, High
Intensity zoning district. (AP: 89). Currently, the Property is improved with a
15-story residential building that contains 120 residential units, a pool, and a
2 The citations to the record appendix in this Response are as follows: the
use of "(AP:_)" refers to the appendix and Bates Stamp page number as set
out in the Appendix and Index to the Response filed by the Respondent. The
use of "(T1:_)" refers to the page of the transcript of the DRB hearing held
on October 5, 2021. The use of "(T2:_)" refers to the page of the transcript
of the DRB hearing held on December 17, 2021.
7
surface parking lot (the "Existing Structure"). Id. The original certificate of
occupancy for the Existing Structure was issued in 1964—the Existing
Structure is 58 years old. (AP: 243).
B. THE PROJECT
The Project, as designed, meets all requirements under the City's
Code, and thus no variances are required. The Project complies with all
requirements under RM-3 zoning, including height, FAR, setbacks, parking
and density. In fact, the permitted density at the Property would allow the
Applicant to develop approximately 365 units, whereas Applicant proposed
a maximum of 100 units. Therefore, the Project is at least 265 units below
the maximum permitted density, utilizing about 27% of the permitted density
under the City's comprehensive plan. Further, there are currently 120 units
within the existing structure, meaning the Project would decrease the
Property's density by at least 20 units.
C. APPLICATION/STAFF REVIEW
Over a period of approximately 5 months, the Applicant worked with City
staff to ensure that the Project conformed to the applicable design criteria in
the Code. This review process included three submissions and thorough
compliance reviews by City staff. After the third submission, staff was
8
satisfied that the Project complied with the relevant criteria. Staff scheduled
the Project for public hearing and recommended approval of the Project.
1. Design Review Committee Submission and Review
The Project's preliminary site plan, landscape plan, and traffic
assessment were first submitted to the City on May 28, 2021, for staff's pre-
application review. (AP: 1 – 75).3 The pre-application submission was
accomplished pursuant to the City's detailed application schedule. (AP: 777
– 779). Soon after the pre-application submission, the Applicant and its
representatives met with City staff on June 7, 2021 to discuss and review the
application. City staff then provided the Applicant with, a pre-application set
of review comments to be addressed in an updated application package.
(AP: 76 – 78).4 At that stage, the application was reviewed and commented
on by the planning, landscape, public works, and sustainability disciplines.
(AP: 76 – 78).
3 The Applicant's Traffic Consultant met and communicated with the City's
traffic engineer on May 10 - 11, 2021 to discuss the Traffic Assessment's
methodology as required by the City's Application schedule. (AP: 108 – 109).
4 Note that the sustainability comments shown in the Narrative Response
Chart (AP: 252 – 258), were provided to the Applicant verbally during the
DRC pre-application meeting.
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2. June 11, 2021 Submission and Review
On June 11, 2021, the Applicant submitted the first complete
application package (the "First Submittal"), pursuant to the City's application
schedule. (AP: 777 – 779). The First Submittal included the City's application
form (AP: 79 - 88), Applicant's letter of intent (AP: 89 – 96), updated traffic
assessment (AP: 97 – 142), site plan (AP: 143 – 184), landscape plan (AP:
185 – 198), survey (AP: 199), the original permit card (AP: 243 – 251), the
city's checklist (AP: 238 – 242), and mailing labels (AP: 200 – 237)
(altogether, the "Application Materials"). The First Submittal included all the
materials and information required by the Code. (AP: 770 – 771).
Further, the First Submittal included an analysis of the applicable
design review criteria and a narrative response to all of City staff's comments
previously issued during the pre-application process. (AP: 91 – 96; 252 –
258). The package listed every single criterion that the DRB is required to
consider and states how the project satisfies each of them. (AP: 91 – 96).
Further, the Applicant displayed how the First Submittal responded to City
staff's comments by listing each of them, responding to them, and providing
a reference sheet number in the narrative response. (AP: 252 – 258).
After receiving the First Submittal, City staff provided the Applicant with
an updated set of comments. (AP: 259 – 260). The updated set of comments
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included commentary from the zoning, administrative, transportation, urban
forestry, landscape, and public works disciplines. Id.
3. July 2, 2021 Submission and Review
On July 2, 2021, the Applicant submitted a revised set of Application
Materials, which addressed City staff's updated comments from the First
Submittal (the "Second Submittal"). The Second Submittal included a
revised letter of intent, traffic assessment, site plans, and landscaping plans
along with the other Application Materials. (AP: 261 – 390). The Second
Submittal's letter of intent maintained the analysis of the applicable design
review and sea level rise criteria. (AP: 275 – 280). Further, the Second
Submittal included an updated narrative response which addressed City
staff's comments from the First Submittal. (AP: 387 – 390).
After City staff reviewed the Second Submittal, they published the
September 10, 2021 Staff Report, which outlined the Project's design,
compliance with the City's zoning requirements, design review criteria, and
sea level rise and resiliency criteria. (AP: 391 – 396). Further, City staff
placed the Project on the agenda for the September 10, 2021, DRB hearing.
(AP: 397). The Staff Report listed each applicable design review criterion
and sea level rise criterion and whether the application satisfied the criterion,
the criterion was inapplicable, or the criterion was not yet satisfied. (AP: 391
11
– 396). Out of the 18 applicable design review standards, staff was 'satisfied'
that all 18 had been met. Id. Further, staff indicated that 10 out of the 11
applicable sea level rise and resiliency criteria had been satisfied. Id. (Note
that the only sea level rise criterion that was 'not satisfied' required the
Applicant to provide a demolition or salvage plan for the Existing Structure
and included a condition that such plans shall be submitted at the time of
permitting. At the time the Second Submittal was provided to City staff,
demolition and salvage plans were premature because the Applicant had not
yet engaged a demolition contractor.)
D. DESIGN REVIEW BOARD HEARINGS
The Application was originally set to be heard by the DRB on
September 10, 2021. However, the Application was continued to a date
certain of October 5, 2021, due to a lack of quorum at the September
hearing. (AP: 397).
1. October 5, 2021 DRB Hearing
At the October 5, 2021, DRB hearing, the DRB had for its consideration
the Applicant's fully vetted and updated DRB application, which included: the
Second Submittal's Application Materials, narrative responses to the first and
second set of City staff's comments, the September Staff Report, the
October Staff Report and a draft order, and the Applicant's presentation. At
12
the hearing, the Applicant was represented by counsel, architects Jason
Long and Yousef Dennis, and landscape architect Neil Porter. (T1: 4 – 5).
i. Presentation of the Project
The October hearing began with a brief introduction by Michael Belush,
the City's Chief of Planning and Zoning Manager. (T1: 2 - 3). Mr. Belush
presented the general parameters of the Project and stated that the Applicant
had "designed a project that fully complies with the zoning regulations." Id.
He stated that City staff was supportive of the design, concept, site plan,
layout, and materials. Id. Then, after a brief introduction by counsel, the
Applicant, through their architects, presented the Project to the DRB using a
PowerPoint presentation. (AP: 409 – 529). The Applicant's presentation
highlighted the Project's design, landscaping, dimensions, neighborhood
compatibility, and resiliency. (T1: 6 – 22).
For example, during the presentation, the Applicant's architects
emphasized that the Project is respectful to and compatible with its
surroundings. (T1: 12). The presentation included multiple renderings
showing the Project within the context of the adjacent buildings. (AP: 427,
430, 431, 435). Mr. Dennis even made a point to mention:
"instead of a typical slab orientation for the building that is kind
of organized perpendicular to the beach, next, we've rotated each
individual unit to take advantage of the inherent views from the site,
but also create a real sense of privacy, both for the people that live
13
within the building and also the neighbors to the north and the
south." (emphasis added) (T1: 12).
The Project's compatibility was further established when Mr. Dennis
mentioned that the Project is "100 units, which is a 20-unit reduction from the
existing building." (T1: 13). In the same vein, when introducing the façade of
the Project and describing the variation in scale, shape, color, and texture,
Mr. Dennis emphasized that "we think the result is something that is both
contemporary, but at the same time really fits in within the context of
Miami Beach Architecture." (emphasis added) (T1: 14). Further, Mr. Porter
also pointed out that the Project would increase the landscaping provided at
the Property from less than 4,000 square feet to just under 40,000 square
feet and emphasized how the landscaping would enhance the overall site
plan. (T1: 18 - 21).
ii. Public Comment/Objections
Following Applicant's presentation, the DRB opened the hearing for
public comment. The DRB heard from various members of the public who
expressed both support and opposition to the Project. Among those
expressing opposition were the Carriage House Condominium Association,
the Penthouse Appellants, and the Penthouse Appellant's attorney.5
5 Note that neither the Amethyst Condominium Association, nor any of its
residents, objected to the Project during the October DRB hearing.
14
Manrique Cartin, Annamarie Ferreira De Melo, and Jay Parker all spoke in
support of the Project.6
a. The Penthouse Unit Owners' Objections
The Penthouse Owners and their attorney appeared and objected to
the Application during the public comment section of the DRB hearing (T1:
23 – 27). The Penthouse Owners' attorney objected on the basis that the
Project would block the view of the sky and ocean. (T1: 24). Ms. Rebhuhn,
followed and complained that the Project would impair her view and ruin her
large 1660-square foot terrace. (T1: 28 - 29). Mr. Hahn and Mr. Sebbag,
similarly objected to the Project on the basis of losing their views. (T1: 30-
34). Mr. Sebbag also complained of the impacts construction would have on
his quality of life. Id.
In addition to these objections at the DRB hearing, the Penthouse
Appellants and their attorney submitted statements and exhibits expressing
their opposition, focusing mainly on their views. (AP: 530 – 561). The
Penthouse Appellant's provided the DRB with a presentation purporting to
show shadow impacts, although nothing indicated that the exhibits were
prepared by experts competent to opine on light and shadow. (AP: 534 –
557).
6 Manrique is the President of the Mid Beach Neighborhood Association.
15
b. The Carriage House Objections
The Carriage House Condominium Association, through counsel,
posed conclusory objections to the Project on the basis that the Applicant
"didn’t follow the essential requirements of law set forth in Section 118-251
and is not supported by any competent substantial evidence," without any
further explanation. (T1: 40). No other representatives from the Carriage
House objected on the record.
c. The Amethyst Objections
The Amethyst Condominium Association did not object to the Project
during the public comment portion of the DRB hearing. Instead, members of
the Amethyst Condominium Association objected to the application through
a form letter, 13 of which were submitted. (AP: 562 – 583). The form
objection letter addresses Amethyst's concerns regarding demolition
processes in the wake of the tragedy at Champlain Towers in Surfside,
Florida. Id. The letter does not mention any of the applicable design review
criteria within the purview of the DRB. Id.
d. DRB Discussion and Continuance
After reviewing the application, hearing the Applicant's presentation,
hearing public comment, and providing the Applicant an opportunity for
rebuttal, the DRB closed the meeting to deliberate. The DRB discussed
16
demolition means and methods, but were ultimately informed by City staff
that demolition falls outside of the DRB's purview. (T1: 50 – 56). Notably,
City staff also informed the DRB that there is "no requirement, or analysis or
expectation that a private property owner is going to not have their view
impacted by an adjacent site." (T1: 58).
However, the DRB expressed concern about the lack of differentiation
between the Project's towers. (T1: 62 – 63; 70 – 71). The DRB discussed
how to address its concerns regarding massing and differentiation between
the towers. (T1: 72 – 73). The DRB opted to continue consideration of the
Project to the December 17 DRB hearing, to provide the Applicant the
opportunity to address the DRB's concerns. (T1: 80).
2. December 17, 2021 DRB Hearing and Approval
The Applicant appeared on December 17 with a revised application
that addressed the DRB's concerns. The Applicant provided the DRB with a
supplemental letter of intent (AP: 584 – 585), supplemental site plans (AP:
586 – 620), supplemental landscape plans (AP: 621 – 644), an updated
presentation (AP: 713 – 725), and a scaled model (AP: 739 – 744). The
Applicant, through its counsel and architects, presented the revised Project
to the DRB, focusing on the changes made to address the DRB's concerns
expressed at the October 5 hearing. (T2: 3 – 20). Mr. Long and Mr. Dennis
17
showed the DRB before and after renderings of the Project's design to
emphasize the changes made. (AP: 655 – 661) Mr. Dennis summarized
those changes by stating:
"[I]'d like to first summarize some of the refinements we've
made to the design since we've previously met. Starting with the
tower, one of the things that we've done, is we've setback the privacy
screen to try and emphasize this intersection between the towers in a
kind of subtle, but effective way. We've also simplified the kind of
material pallet. We also brought materials samples here today, which
we think its refined to a chalk white color, which we think emphasizes
the subtlety and power of form. We've also further articulated the slab
edge design and made adjustments to the clubhouse pavilion that you
see on the waterside where we've pulled it further away from the
water and also reduced its size. And on the Collins side, we've also
simplified the massing of the pavilion adding a canopy to better
intergrade it into the arrival experience into the property." (T2: 9 -10).
After the Applicant's presentation, the DRB received public comment.
(T2: 22 – 35). The Penthouse Appellants asserted that the Project failed to
comport with the City's design review criteria, continuing to reference the
exhibits they prepared, and citing the impacts demolition could have on their
building (T2: 24, 26 – 27). The Carriage House Condominium's attorney
again complained that the Applicant had failed to meet its burden, without
detail, asserted that the staff report was not competent substantial evidence,
and that the proposed order was an improper delegation of authority to City
staff. (T2: 33 – 35).
18
In response to the Appellant's comments against the Project, a
member of the DRB observed: "I did not hear anything from anyone at the
Carriage House establishing either that this application is deficient with
respect to any relevant criterion or that having this imposes some sort of
undue hardship on them, so I support this application." (T2: 39)
Further, City staff reiterated its support for the project, stating "[a]nd as
we mentioned in our staff report, we found it that it satisfies the criteria in
terms of overall height, scale and mass and compatibility with the
surrounding neighborhood" (T2: 42).
After the DRB's discussion of the Project and the addition of an
additional condition of approval, the DRB voted to approve the Project in
accordance with staff's recommendation.(T2: 56 – 59).
JURISDICTION
The Commission has jurisdiction to hear appeals of DRB orders on
applications for design approval. Code Sec. 118-9(c)(2)(B). (AP: 755).
STANDARD OF REVIEW
To reverse a decision of the DRB, the City Commission must find that
the DRB “did not comply with any of the following: (i) provide procedural due
process; (ii) observe essential requirements of law; [or] (iii) [base] its decision
19
upon substantial competent evidence.” Code Sec. 118-9(c)(4)7 (AP: 756). A
five-seventh's vote of the Commission is required to reverse the decision of
the DRB, or to remand for further proceedings.
The standard of review is identical to the standard applicable to first-
tier certiorari appeals of land use board decisions in circuit court. See Miami-
Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195 (Fla. 2003).
Accordingly, the Commission cannot re-weigh the evidence or substitute its
judgment for that of the DRB, and is prohibited from reviewing this matter de
novo. See, e.g., Dusseau v. Metro. Dade Cty. Bd. of Cty. Comm’rs, 794 So.
2d 1270, 1274 (Fla. 2001); Fla. Power & Light Co. v. City of Dania, 761 So.
2d 1089, 1093 (Fla. 1993). That means that the Commission's only task is to
determine whether there is evidence to support the Order, regardless of
evidence that might have supported a contrary decision – or to identify some
fundamental illegality in the DRB proceedings.
SUMMARY OF ARGUMENT
The Board's Order must be affirmed. The DRB observed the essential
requirements of the law, provided due process, and based its decision on
competent substantial evidence.
7 Appellants have not argued that due process was not afforded to them by
the DRB. Therefore, that criterion is conceded as met and not pertinent to
these proceedings.
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ARGUMENT
A. THE DRB'S ORDER IS SUPPORTED BY COMPETENT
SUBSTANTIAL EVIDENCE
The DRB's Order is supported by ample competent substantial
evidence. Appellants' Petitions challenging the Order all boil down to the
same argument - a contrary claim that the DRB Order is not supported by
competent substantial evidence. They couch that claim in three different
legal arguments, but at core the arguments are identical – that somehow the
abundant evidence below did not support the Order. (Condo Appellants Brief
at 10 – 15; Penthouse Appellants Brief at 18 – 23).8 Based on the
comprehensive and thorough record of evidence below, these arguments
must fail.
1. Competent Substantial Evidence Standard
Competent substantial evidence is evidence that establishes “a
substantial basis of fact from which the fact at issue can be reasonably
inferred.” DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Florida courts
have consistently found that professional staff's report, finding compliance
8 Competent substantial evidence and essential requirements of the law are
two different legal standards. Appellants have attempted to argue that the
lack of competent substantial evidence means that the DRB departed from
the essential requirements of the law. This is a mischaracterization of the
standards of review further addressed in Argument B below.
21
with applicable code provisions based on record evidence, is competent
substantial evidence. See Village of Palmetto Bay v. Palmer Trinity Private
Sch., Inc., 128 So. 3d 19, 26-27 (Fla. 3d DCA 2012) (staff report
recommendation, in which all applicable criteria were reviewed, constitutes
competent substantial evidence); City of Hialeah Gardens v. Miami-Dade
Charter Found., Inc., 857 So. 2d 202, 205 (Fla. 3d DCA 2003) (testimony of
professional staff, when based on “professional experiences and personal
observations, as well as [information contained in an] application, site plan,
and traffic study,” constitutes competent substantial evidence); Palm Beach
County v. Allen Morris Co., 547 So. 2d 690, 694 (Fla. 4th DCA 1989)
(confirming that professional staff reports analyzing a proposed use
constitutes competent substantial evidence).
Moreover, Florida courts have found that documentary evidence and
expert testimony constitute competent substantial evidence. See Miami-
Dade County v. Walberg, 739 So. 2d 115 (Fla. 3d DCA 1999) (finding that a
site map, petitions, and testimony of a registered engineer constitute
competent substantial evidence); Metropolitan Dade County v. Sportacres
Development Group, Inc., 698 So. 2d 281 (Fla. 3d DCA 1997); Riverside
Goup, Inc. v. Smith, 497 So. 2d 988 (Fla. 5th DCA 1986).
22
Further, the Commission's review on appeal is strictly limited to
determining whether competent substantial evidence exists in the record to
support the quasi-judicial decision. See Dusseau, 794 So. 2d at 1275 - 76.
In the same vein, it is outside the Commission's purview to determine
whether the DRB's "decision is the 'best' decision or the 'right' decision or
even a 'wise' decision, for these are technical and policy-based
determinations properly within the purview of the agency." Id.
2. The Applicant Met Its Initial Burden By Showing That the
Application Comported With the Applicable Zoning Criteria.
Here, the Applicant itself provided substantial competent documentary
evidence in the form of site plans, landscaping plans, and traffic
assessments, all prepared, and explained by, expert professional
consultants, including multiple architects and an engineer. These Application
Materials and the expert testimony by the Applicant's experts constitute
competent substantial evidence. See Walberg, 739 So. 2d at 117;
Sportacres, 698 So. 2d at 282. Further, City staff, who are experts in their
respective fields, reviewed the Application and testified that the Applicant
designed a project that fully complies with the zoning regulations, in addition
to expressing their support of the design, concept, site plan, and layout. (T1:
3). This is competent substantial evidence. See Miami-Dade Charter Found.,
857 So. 2d at 205.
23
Contrary to Appellant's conclusory argument, the Record clearly shows
that Applicant presented ample evidence that its Application had met all the
applicable zoning criteria. Applicant submitted and presented site plans,
landscape plans, a survey, a traffic assessment, the City's form application,
a letter of intent, and a narrative response to City staff's comments on three
separate occasions. As only one example, the Applicant's letter of intent
outlines each and every applicable zoning criterion and how the Application
and its materials fulfill each. (AP: 89 - 96, 273 - 280).
Moreover, the Application was presented to the DRB on two separate
occasions, where Applicant's architects testified under oath that the Project
satisfied the applicable design criteria. The Applicant even went as far as
presenting a model to the DRB at the December hearing in order to show,
with something tangible, the Project's compliance with the relevant criteria.
(AP: 739 – 744). Therefore, as a matter of law, the DRB Order must be
upheld as the Applicant met its burden and the Board's decision is supported
by competent substantial evidence.
3. The Record Includes Other, Additional Competent
Substantial Evidence Showing the Project Complies with
the City's Design Review Criteria.
The Condominium Appellants repackage their first argument and
attempt to get a second shot at it by claiming there is no competent
24
substantial evidence in the entire record showing the Project's compliance
with applicable design criteria. (Condo Appellants Brief at 11 – 15).
Penthouse Appellants adopt the same argument. (Penthouse Appellants
Brief at 18 – 23).
The Appellants claim that because the staff report only checks off
'satisfied,' 'not applicable,' or 'not satisfied' in analyzing the design criteria,
that it should not be considered substantial competent evidence. In making
this argument, Appellants simply ignore the rest of the Staff Report – and
that the Staff Report is the result of a comprehensive application process
that took approximately 8 months to complete, entailing the accumulation of
the very substantial documentary evidence on which staff based its
conclusions and recommendations. Appellants purposefully ignore this fact
in order to portray the Application process as one that was rushed, cursory,
and shallow. But the Record tells a different story.
The record shows that the Application process began on May 28, 2021,
when the Applicant submitted a pre-application submittal for staff review. The
record also shows that as a result of that preliminary application, City staff
provided the Applicant with comments analyzing and addressing the
Project's shortcomings. (AP: 76 – 78). The record also shows that the
Applicant responded to those comments and addressed them within their
25
First Submittal, which included a narrative chart responding to each of staff's
comments. (AP: 252 – 258). Staff reviewed the First Submittal and provided
the Applicant with additional comments (AP: 259 – 260), which were
addressed in the Second Submittal. (AP: 387 – 390). Once City staff was
satisfied with the Project's compliance with the relevant criteria, the Staff
Report was prepared and the Project placed on the DRB's agenda.
The City's own Planning and Zoning Chief stated on the record at the
October hearing that:
"staff has been working with the applicant over the last several
months. They've designed a project that fully complies with
the zoning regulations. They're not requesting any variances or
waivers. We are supportive of the design, the concept, the site
plan and layout, including materials, and we are
recommending that that the application be approved subject
to the conditions listed in the staff report." (emphasis added)
(T1: 3).
Further, the Applicant provided substantial competent documentary
evidence in the form of site plans, landscaping plans, and traffic
assessments, all prepared by professional consultants, on which staff could
rely. See Walberg, 739 So. 2d at 117; Sportacres, 698 So. 2d at 282.
Appellant's argument also purposefully ignores that the Staff Report itself
states the analysis is based on staff's review of architectural drawings. (AP:
392, 398, 714). Again, architectural drawings and staff's recommendation
based on the review of those drawings are competent substantial evidence.
26
See Palmer Trinity, 128 So. 3d at 26-27; Miami-Dade Charter Found., 857
So. 2d at 205.
Here, the DRB properly relied on City staff's recommendation and the
evidence submitted to them. Appellants' argument falls apart just by looking
at the record. Their real argument is that they disagree with the DRB's Order
because of the impacts it may have on their views and because of
construction impacts. Appellants' argument that the Order is not supported
by competent substantial evidence is clearly wrong and the DRB's Order
must be affirmed.
4. Evidence Presented by Appellants is Immaterial on Review
At the same time, the Penthouse Appellants have cunningly attempted
to argue that the weight of their evidence justifies reversal of the Order.
(Penthouse Appellants Brief at 19 – 23). However, review on appeal "is not
a question of whether there was more evidence on one side or the other,
whether the right decision was made, or any other weighing factor; just
whether there is some competent substantial evidence to support the
decision." (emphasis added) Florida Power & Light Co., 761 So. 2d at 1092.
Therefore, the Penthouse Appellants' claim that they presented competent
substantial evidence establishing the incompatibility of the Project is
irrelevant. See Id. On review the Commission's inquiry "is strictly limited to
27
determining whether competent, substantial evidence exists in the record to
support the quasi-judicial decision. See Dusseau, 794 So. 2d at 1275.
Further, the exhibits submitted by the Penthouse Appellants do not
constitute substantial competent evidence. Penthouse Appellants submitted
a number of exhibits showing the impact the Project will have on their
building. (AP: 534 – 557). However, it appears that either the Penthouse
Appellants themselves or their attorney prepared them, as they make no
reference to professional assistance or expertise. Exhibits attempting to
display shadow studies certainly fall outside their professional expertise and
that of their attorney and, therefore, does not qualify as competent
substantial evidence. See Jesus Fellowship, Inc. v. Miami-Dade County, 752
So. 2d 708, 710 (Fla. 3rd DCA 2000) (stating that where technical expertise
is required, lay testimony is not substantial competent evidence).
B. THE DRB ORDER FOLLOWS THE ESSENTIAL REQUIREMENTS
OF LAW.
In a repeat run at the same claim, Appellants also attempt to argue that
the DRB failed to follow the essential elements of the law by arguing that the
Order is not supported by substantial competent evidence. That argument
has already been addressed. Appellants also assert that the DRB improperly
delegated its authority to City staff by imposing conditions in the Order.
Appellants are incorrect.
28
Florida courts have clearly defined the essential requirements of the
law standard to exclude applications of the law that a reviewing court simply
disagrees with. Instead, the standard means "an inherent illegality or
irregularity, an abuse of judicial power, an act of tyranny perpetrated with
disregard of procedural requirements, resulting in a gross miscarriage of
justice." See Haines City Community Development v. Heggs, 658 So. 2d
523, 527 (Fla. 1995), quoting Jones v. State, 477 So. 2d 566, 569 (Fla.
1985). Here, City staff and the DRB did not act tyrannically with a disregard
of the Code or applicable procedural requirements. To the contrary, the DRB
followed the process outlined in the Code.
1. The Order is Based on Competent Substantial Evidence
As discussed above, the Order was based on competent substantial
evidence.9 Further, the DRB and City staff indisputably applied the correct
law by applying the provisions of Section 118-251 and the resiliency and
review criteria in chapter 133, Article II of the Code. Appellants just disagree
with the conclusions. Therefore, this argument fails as the Order is supported
by competent substantial evidence, the DRB applied the correct law, and this
claim mischaracterizes the standard of review on appeal.
9 See Argument A, incorporated herein.
29
2. The DRB Did Not Improperly Delegate Its Authority to City
Staff
Lastly, Appellants assert that the DRB departed from the essential
requirements of the law because the DRB improperly imposed conditions of
approval that require implementation by City staff. (Condo Appellants Brief
at 15, Penthouse appellants Brief at 23). Specifically, the Condo Appellants
challenge section I(D)(1) of the Order, which lists seven conditions of
approval "to be reviewed and approved by staff, consistent with the Design
Review Criteria and/or the directions from the Board." (AP: 745 – 746).
However, the DRB did not delegate its authority; rather, the DRB directed
City staff to enforce the conditions of its approval, in accordance with the
design review and sea level criteria in the Code.
Contrary to the Appellants' arguments, the Code specifically authorizes
the DRB to impose conditions on its approvals. (AP: 775). Section 118-264
provides that "[i]n granting design review approval, the design review board
may prescribe appropriate conditions and safeguards either as part of a
written order or on approved plans." Id. The DRB is authorized to prescribe
reasonable conditions of approval and to direct City staff to enforce them.
Nor are the conditions a delegation of any policy-making authority. The
Order requires staff to enforce the conditions of approval. Once a DRB order
is issued, staff is charged with ensuring building permit plans are consistent
30
with the plans presented to the DRB, and the conditions of the DRB's
approval. Further, the Order requires that all conditions of approval must be
satisfied prior to the issuance of a building permit. (AP: 749).
The conditions at issue provide ample direction to staff. The conditions
the Condo Appellants complain of are:
a. The removal of the balcony slab extensions on the inside corners on
both the north and south elevations shall be studied, and may be
removed in order to further differentiate the vertical building volumes,
in a manner to be reviewed and approved by staff, consistent with the
Design Review Criteria and/or directions from the Board.
b. The final design details and color selection of the "chalk color palette"
shall be submitted, in a manner to be reviewed and approved by staff
consistent with the Design Review Criteria and/or directions from the
Board.
c. The exterior walkway adjacent to the loading area shall include a
covering, in a manner to be reviewed and approved by staff consistent
with the Design Review Criteria and/or the directions from the Board.
d. All new exterior handrails and support posts shall incorporate a flat
profile. The final design details, dimensions material and color of all
exterior handrails shall be made part of the building permit plans and
shall be subject to the review and approval of staff consistent with the
Design Review Criteria and/or directions from the Board
e. The final design details of the exterior materials and finishes shall be
submitted, in a manner to be reviewed and approved by staff
consistent with the Design Review Criteria and/or the directions from
the Board.
f. A copy of all pages of the recorded Final Order shall be scanned into
the pans submitted for building permit, and shall be located
immediately after the front cover page of the permit plans.
31
g. Prior to the issuance of a Certificate of Occupancy, the project
Architect shall verify, in writing, that the subject project has been
constructed in accordance with the plans approved by the Planning
Department for Building Permit. (AP: 745 – 746).
To start, the last two conditions, (f) and (g), require that Applicant
complete certain ministerial conditions. Id. The remaining five conditions
require Applicant to submit certain design detail characteristics to be
reviewed and approved by staff consistent with the approved plans and the
Code's design review criteria or directions from the DRB. Id. Each of these
conditions identifies a specific design characteristic and the standards staff
needs to apply to approve them. Id. Applicant submitted Application
Materials that displayed the Project's design in great detail. The DRB, after
reviewing the Project's design approved it and asked City staff to confirm that
the ultimate development matches what they approved. The DRB can do
this.
Further, limited discretion in an administrative situation "does not
render delegation unlawful where standards formulated for guidance and
limited discretion, though general, are capable of reasonable application."
See Sims v. State, 754 So. 2d 657, 669 (Fla. 2000). Here, the DRB approved
the project, limited City staff's discretion to certain characteristics, and
provided standards for application.
32
Appellants' argument would lead to an absurd result, requiring projects
to come before the DRB for the most miniscule design details. To prevent
that result, the Code enables the DRB to issue conditions to address these
minor details and Florida law sanctions such conditions. See Sims, 754 So.
2d at 668 - 669 (finding that when a legislative body cannot efficiently or
practically perform the functions required, it has the authority to designate an
agency to carry out the purposes of such legislation). Thus, the conditions
that the Appellants challenge are in fact prescriptive of what the Board
directed staff to review and approve. Contrary to Appellants' argument, the
DRB applied the letter of the law and has the authority to approve projects
subject to conditions. Therefore, this argument fails and the DRB Order must
be affirmed.
CONCLUSION
For these reasons, the Applicant respectfully requests that the City
Commission reject the Appellants' arguments and affirm the DRB’s Order.
Respectfully Submitted,
AKERMAN LLP
By: /s/ Neisen O. Kasdin
33
NEISEN O. KASDIN
Florida Bar No. 302783
Primary Email:
neisen.kasdin@akerman.com
Secondary Email:
diana.perez-gata@akerman.com
JONI ARMSTRONG COFFEY
Florida Bar No. 281646
Primary Email:
joni.armstrong.coffey@akerman.com
Secondary Email:
maria.y.gonzalez@akerman.com
CHRISTOPHER A. PENELAS
Florida Bar No. 1032073
Primary Email:
christopher.penelas@akerman.com
Secondary Email:
diana.perez-gata@akerman.com
98 SE 7th Street, Suite 1100
Miami, Florida 33131
Phone: 305.374.5600
Fax: 305.374.5095
Counsel for Respondent