6 Reply of Carriage House and Amethyst
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BEFORE THE MIAMI BEACH CITY COMMISSION
DESIGN REVIEW BOARD APPLICATION: DRB21-0694
IN RE: 5333 COLLINS AVENUE.
Design Review Approval for construction of 17-story
(200-foot tall) multifamily building.
CONSOLIDATED REPLY
TO RESPONSES OF CITY OF MIAMI BEACH
AND 5333 COLLINS ACQUISITIONS
The Carriage House Condominium Association, Inc. (“Carriage
House”) and The Amethyst Condominium Association, Inc.
(“Amethyst”) (collectively “neighbors”) through undersigned counsel
hereby file this consolidated reply to the response of the City of
Miami Beach (“city”) and 5333 Collins Acquisitions (“5333 Collins”)
(collectively “respondents”). Neighbors respectfully request that the
Miami Beach Commission (“city commission”) quash the Miami
Beach Design Review Board (“DRB”) order (Exhibit A, 1. DRB
Order)1 that granted approval for development of a 200-foot-tall
1 All citations to exhibits are indicated by “Exhibit” followed by the
appropriate tab letter and page number.
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residential condominium at 5333 Collins Avenue on December 17,
2021.
Neighbors hereby adopt the facts and arguments presented in
the reply brief filed in this matter by Thomas Hahn and David
Sebbag that are not in conflict with the petition and this reply and
incorporate them herein by reference and further state:
ARGUMENT
The following serious errors in the DRB review and approval of
the 5333 Collins design review application warrant granting this
appeal and reversing the DRB decision because:
1. The DRB approval is not supported by any competent
substantial evidence because it relies on a city staff report
and documents in the record that do not include any
relevant valid evidence to show compliance with each of the
19 requirements for design review approval.
2. The DRB, without a legal basis, delegated to staff its
authority to make final design decisions reserved by the
Miami Beach Zoning Code (“zoning code”) to the DRB.
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1. The DRB Order is not supported by any
competent substantial evidence that
shows compliance with the city design
review criteria.
The basis of the authority of the DRB to make design review
decisions is through the city commission’s enactment of ordinances
that give it that power. This power is subject to clearly-stated
guidelines and standards set forth in Article VI, Design Review
Procedures.
Respondents erroneously claim that the planning
department staff report, as well as plans, presentations and
testimony by applicant and city staff, are competent substantial
evidence that support the DRB decision to approve the 5333
Collins design review application.
The staff report includes no factual basis for its conclusions
that the application “Satisfied” 18 of the 192 review criteria.
To be competent substantial evidence, the staff report must be
based on relevant valid evidence that shows compliance with the
2 Staff deemed one criterion “Not Applicable.”
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applicable design review criteria. Jesus Fellowship v. Miami-Dade
County, 752 So.2d 708.709 (Fla. 3d DCA 2000).
Here, the staff report presents conclusory language in the
word “satisfied” after a recitation of each applicable criteria. The
report fails to give any information for a reviewing body to know
whether the conclusions have sufficient foundation in the any
findings of fact. The fatally-flawed staff report includes no
indication of a relationship between each design review criterion
and any specific evidence presented at the DRB hearing.
Therefore, there is no showing of the relevancy or the validity of
the evidence. Id. 710.
Neither the staff report nor presentations of the applicant
and city staff show that the hundreds of pages of plans and other
documents mentioned by respondents have any bearing on, or
relation to, the design review criteria. In their responses
respondents cite to numerous documents that they claim are
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related to individual design review criteria.3 But these assertions
are not part of the record in this proceeding and, therefore, are
irrelevant for establishing the basis for the DRB decision to
approve the design review application. Exhibit C, 3. Section 118-
9(c)(3)(i) Rehearing and Appeal Procedures. Wilkerson v. Alachua
County, 675 So.2d 951, 952 (Fla. 1st DCA 1996).
At the two DRB hearings counsel for the individual objectors
and the attorney for the Carriage House argued that the staff
report failed to show compliance with each of the design review
criteria. Apps. Exhibit J, 25:15-26:4, Exhibit N, 34:13-24.
Counsel for 5333 Collins claimed that the staff report is
competent substantial evidence showing the project’s compliance
with all the criteria. Exhibit N, 35:22-36:4. However, the record of
the DRB hearing presents no argument and provides no
information, such as specific testimony or documents, with any
bearing or relationship to each design review criteria.
3 Respondent City of Miami Beach includes in its response a list
(City Response, 6) and chart purporting to link specific pieces of
evidence to each of the 19 design review criteria. Both items are not
included as part of the record. City Response,7-9.
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Respondents claim that the presence in the record of
particular documents and testimony is enough to be competent
substantial evidence. This assertion fails to meet the requirement
that competent substantial evidence must be based on facts and
relevant. DeGroot v. Sheffield 95 So.2d 912, 916 (Fla. 1957).
Respondents fail to show that any evidence in the record is
relevant valid evidence that exhibits compliance with each of the
city design review criteria. Jesus Fellowship, 709.
2. City staff has no authority to review and
approve specified design elements as
directed in the DRB Order.
The Supreme Court of Florida has determined that power
must be delegated by a legislative body, such as the city
commission, to administrative bodies, such as the DRB. Askew v.
Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1979). But the
DRB is not a legislative body and, therefore, cannot delegate its
authority to “approve” a design review application. Id. The DRB
reviews and either approves, approves with conditions or denies an
application. Exhibit P, 5-6. Section 118-254.
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Section 118-260(a) is a proper delegation of power by the city
commission. But that code provision only provides a process by
which an application is filed for an administrative approval for one
of the listed items. Exhibit P, 9. Section 118-260(a). The record here
shows no evidence of such an application.
Section 118-264, says that “the design review board may
prescribe appropriate conditions and safeguards.” Respondents
maintain that this provision allows the DRB to delegate its
authority to approve, through a condition, a particular design
element. DRB delegation to staff of its review and approval
authority via a condition of its approval is contrary to applicable
law and city code, and therefore, is not an “appropriate condition.”4
Respondents also posit that the DRB is allowed to delegate for
a “more efficient operation and enforcement of the City Code” (City
Response, 12.) or “where standards are formulated for guidance and
limited discretion” (5333 Collins Response, 31). These assertions
4 Neither section 118-264 nor 118-260(a) give any authority to the
DRB to delegate its design review authority.
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are erroneous because the DRB is not a legislative body that has
the authority to delegate.
The city commission approved a delegation of the DRB’s
authority to the planning director, or its designee, upon the filing of
an application to determine whether any of eleven development
elements meet the city design review criteria. Exhibit P, 9. Section
118-260(a). Here, there is no such application in the record so that
provision is not applicable in this proceeding. Argument that the
DRB has the authority to delegate its decision-making power to
staff also fails because the DRB is not a legislative body and,
therefore, has no power to delegate any authority it has.
CONCLUSION
Respondents’ reliance on the design review staff report as
competent substantial evidence is misplaced because the staff
report did not provide relevant valid evidence that has a connection
with each of the required design review criteria. Respondents’ claim
that documents and testimony in the record are competent
substantial evidence falls short because mere presence of
documents and testimony is not sufficient unless there is a showing
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that these materials relate to compliance with code-required
criteria. Several conditions in the order include unlawful
delegations of DRB approval authority to staff of without the
necessary legislative enactment. These flaws in the DRB
consideration and decision warrant granting the appeal and
reversing the DRB decision.
Respectfully Submitted,
W. TUCKER GIBBS, ESQ.
Attorney for:
The Carriage House
Condominium Association, Inc.
and Henry Salum,
and
The Amethyst Condominium
Association, Inc. and Robert
Pelier
P.O. Box 1050
Coconut Grove, Florida 33133
Tel (305) 448-8486
Email: tucker@wtgibbs.com
By: /s/ W. Tucker Gibbs
W. TUCKER GIBBS
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was served by
email to: Rafael A. Paz, City Attorney, rafaelpaz@miamibeachfl.gov,
Deputy City Attorney; Nicholas E. Kallergis,
nickkallergis@miamibeachfl.gov, 1700 Convention Center Drive,
Fourth Floor, Miami Beach, FL 33139; and Bob de la Fuente, Esq.,
bdelafuente@lehtinen-schultz.com, Lehtinen Schultz, PLLC, 1200
Brickell Avenue, Suite 507, Miami, FL 33131, and Amanda Quirke
Hand, Esq., AQH Law, ahand@aqhlaw.com, 1395 Brickell Avenue,
Suite 800, Miami, FL 33131; and Neisen O. Kasdin, Esq.,
neisen.kasdin@akerman.com, Joni Armstrong Coffey, Esq.,
joni.armstrong.coffey@akerman.com, and Christopher A. Penelas,
Esq., christopher.penelas@akerman.com, Akerman, 98 S.E. 7th
Street, Miami, FL 33131, this 6th day of June 2022.
/s/ W. Tucker Gibbs
W. Tucker Gibbs