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7 Reply of Thomas Hahn and David SebbagBEFORE 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: THOMAS HAHN and DAVID SEBBAG Appellants1 ________________________________/ REPLY TO RESPONSES TO PETITIONS FOR ADMINISTRATIVE APPEAL Appellants Thomas Hahn and David Sebbag (“Appellants” or “Unit Owners”) hereby file this Reply Brief in reply to the Response Briefs submitted by 5333 Collins Acquisitions, LP (the “Applicant” or the “Developer”) and the City of Miami Beach (the “City”). The Unit Owners, the Carriage House Condominium Association and The Amethyst Condominium Association (the 1 Jacqueline Rebhuhn is no longer a Petitioner/Appellant in this matter. MATTER NO. SM-2022-001 2 “Condominium Associations”) filed their respective appeals of the Order of the Design Review Board on File No. DRB21-0694 (the “DRB Order”). With their Petitions, the Unit Owners and the Condominium Associations lodged certain arguments challenging the DRB Order, and incorporated and adopted their respective arguments by reference. The Developer and the City submitted their respective Response Briefs, and this Reply Brief is submitted in reply to them. The Unit Owners reassert all arguments in their original Petition, and again adopt and incorporate all arguments challenging the DRB Order as set out in the Reply Brief filed by the Condominium Associations. MATTER NO. SM-2022-001 3 INTRODUCTION This Honorable Commission is the governing legislative body of the City, having enacted all relevant provisions of the governing Code via duly enacted Ordinances. The Code frames the duties and powers of the Design Review Board (or “DRB”), and includes express, mandatory procedures for the adjudication of certain applications by the DRB. This procedural process is very clear that the City’s Professional Planning Department Staff are to provide recommendations on those applications coming before the DRB, but that the ultimate adjudication of applications is to be done by the DRB Board. Contrary to these express Code procedures, the DRB’s final Order in this case leaves several adjudications to the Professional Staff to be made after the close of the public quasi-judicial hearing on the application. By doing so, the DRB’s Order frustrates and repeals the Code’s express requirements for public Board evaluation and adjudication of the application based upon the competent, substantial evidence in the record in advance of a duly-noticed public hearing. MATTER NO. SM-2022-001 4 The violation of the Code’s procedural process also gives rise to a lack of substantial, competent evidence in support of the DRB Order. If the DRB determined that the application in fact satisfied the nineteen Code-based design criteria, then the Order would not call for further determinations to be made by City Staff (to be made after-the-fact and under the design criteria). If determinations of satisfaction of the Code’s design criteria are still yet to be made, then the DRB Order cannot lawfully recite that each and every Code based factor was in fact “satisfied” by the competent substantial evidence before the DRB. Thus, without leaving the four corners of the DRB Order itself, the application is not supported by substantial, competent evidence in satisfaction of the design criteria. Put another way, the City’s Code governing the DRB (and Florida case law) all mandate that quasi-judicial boards in zoning proceedings base their rulings upon the substantial competent record evidence developed in a public, record-based, quasi-judicial hearing. The DRB Order in this case runs afoul of this long- standing procedure by pushing off certain determinations until after the close of the public hearing. If determinations of Code criteria MATTER NO. SM-2022-001 5 are still yet to be made, then the DRB Order cannot lawfully recite that each and every Code based factor was in fact “satisfied” by competent substantial evidence. Finally, because this Honorable Commission through its Code expressly charges the DRB to adjudicate the applications before it under the nineteen design criteria in the Code, the DRB must faithfully discharge that duty and not leave certain determinations to the Staff in the absence of any authorization to do so. Reversal of the DRB Order is both necessary and justified to enforce the Code-based process upon which the citizenry relies. Because the City’s Code text is the lynchpin of this case, the Unit Owners organize their Reply Brief as follows: (1) overview of the governing City Code; (2) the failure to follow the Code’s procedure and process constitutes a departure from the essential requirements of law; and (3) the DRB Order consequently is not supported by substantial, competent evidence. MATTER NO. SM-2022-001 6 ARGUMENT I. Outline of the Code’s DRB and Staff Review Procedures. The Code makes clear that for those applications coming before the DRB (as opposed to those that may be administratively approved), the duty of the Professional Staff is to provide recommendations, while the duty and charge of the DRB is to make the actual decisions and determinations on the application. The City Code creates the DRB with the “power and duty” to “review all applications requiring design review approval ….” §118- 71(2), City Code. All meetings of the DRB in the discharge of its duty are to be “open to the public.” §118-76, City Code. The City and DRB Design Review Procedures are set out in Article VI of the Code, in Section 118-251 through Section 118-264. This governing Code process states that “Design review encompasses the examination of architectural drawings for consistency with the criteria stated below, with regard to the aesthetics, appearances, safety, and function of any new or existing structure and physical attributes of the project in relation to the site adjacent structures and surrounding community.” §118-251(a). MATTER NO. SM-2022-001 7 DRB Approval for New Construction. For those applications coming before the DRB, the Code contemplates recommendations by the Planning Department, as follows: “Recommendations of the planning department may include, but not be limited to, comments from the building department and the public works department.” Id . (emphasis added). The Code thereafter sets forth the nineteen design criteria to be considered by the DRB. Again, the Code at all times discusses recommendations by the Staff to the DRB, and does not contemplate decisions by Staff on the application. All applications for “new construction” are subject to the DRB process, with certain exceptions and procedures for City-owned projects and emergency situations. See §118-252, City Code. All of Article Vi of the Code carries forward the process of (a) recommendation by the Staff; and (b) actual decision on the application by the DRB. “When the application is complete, the planning department shall place the application on the agenda and prepare a recommendation to the design review board.” §118- 253(a) (emphasis added). “The board shall consider the application and planning department recommendation at the next available meeting date after the submission of a completed application to the MATTER NO. SM-2022-001 8 planning department. Id . (emphasis added). The most telling provision is Section 118-254, titled “Decision of design review board,” which provides: Sec. 118-254. - Decision of design review board. (a) The design review board shall consider each application at a quasi-judicial, public hearing, at which the applicant and interested persons shall have an opportunity to express their opinions, present evidence and rebut all evidence presented. The planning department, shall provide the applicant with advance notice of the hearing date and time, including a copy of the agenda and the recommendation of the planning department. (b) Applications shall comply with the notice requirements in accordance with section 118-8. (c) The board may require such changes in the plans and specifications, and conditions, as in its judgment may be requisite and appropriate to the maintenance of a high standard of architecture, as established by the standards contained in these land development regulations and as specified in the city's comprehensive plan and other specific plans adopted by the city of pertaining to the areas identified in subsection 118- 252(a). (d) Upon approval of an application by the board, the planning director or his authorized representative shall stamp and sign three sets of plans. Two sets of plans shall be returned to the applicant who may then submit an application for a building permit. The remaining approved plans shall be part of the board's official record and shall be maintained on file with the planning department. The board's decision shall be set forth in a written order, specifying the reasons for such MATTER NO. SM-2022-001 9 decision. §118-254, City of Miami Beach Code of Ordinances (emphases added). All of the foregoing Code procedures make perfectly that it is the DRB Board that is to approve or disapprove those applications that go before it, period. Nothing in these provisions authorizes or even suggests that design criteria compliance on a given application before the DRB may be determined by Planning Staff after the close of the hearing. Administrative Approval for Modifications to Existing Buildings. The City in its Response Brief points to administrative review procedures in the Code authorizing Professional Staff to make certain determinations. City Brief at 12. However, as Article VI of the Code makes clear, these sections govern those applications that may be administratively adjudicated (as opposed to those that must go before the DRB). In other words, the Code’s regime is clear that “new construction” must go before the DRB for public hearing, while the following additions and modifications to existing structures may be administratively approved:  “(1) ground level additions to existing structures;” MATTER NO. SM-2022-001 10  “(2) replacement of windows, doors;”  “(3) façade and building alterations;”  “(4) modifications to storefronts and/ façade alterations;”  “(5) modifications to storefronts and/or façade alterations;”  “(6) minor demolition and alterations to address accessibility;”  “(7) minor demolition and alterations to rear and secondary facades;”  “(8) minor work associated with the public interiors of buildings;”  “(9) minor work involving public improvements;”  “(10) minor work which is associated with rehabilitations and additions to existing buildings”; and  “(11) applications related to exterior balcony, terrace, porch and stairway rails on existing buildings ….” §118-260(a), City of Miami Beach Code of Ordinances. Put another way, the Code clearly shepherds applications into two distinct procedural pathways: (1) those applications for significant new construction are set up for public hearing before the DRB with recommendation by the Staff and decision by the DRB; MATTER NO. SM-2022-001 11 and (2) those applications for certain modifications to existing buildings that may be administratively approved by Staff. Again, there is nothing in these provisions that authorizes or even suggests that the administrative approval tract for existing buildings can be used as authorization for Planning Staff to adjudicate de sign criteria compliance on new construction applications before the DRB. The Code is clear that only the DRB Board itself may make that determination. II. The DRB Board Departed From the Essential Requirements of Law When it Granted the Application in a Manner Contrary to the Procedural Requirements of the Code. The DRB Order leaves certain design criteria compliance determinations to future evaluation by City Staff. However, these determinations are reserved exclusively to the DRB itself under the Code (to be adjudicated in the “sunshine” at a public hearing based upon the record evidence submitted before and at the hearing, as opposed to behind closed doors by Professional Staff based upon submissions made after the close of the hearing). The process and procedures imposed by the Code must be followed to the letter because failure of a local government to adhere to its own MATTER NO. SM-2022-001 12 procedural regulations constitutes a departure from the essential requirements of the law. Rosa Hotel Developers, Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 600b (Fla. 15th Cir. Ct. 2003). A. The Code Requires the DRB to Approve or Deny Applications, and Does Not Authorize Staff Adjudication of DRB Applications. In its attempt to counter these arguments, the City first argues that the Commission owes deference to the DRB’s interpretation of the Code that this Commission itself enacted. City Brief at 11-12. Second, the City relies on Section 118-260 titled “Administrative Review Procedures” in support of the “conditions” set out on the DRB Order on review. However, this application and all the parties proceeded under Section 118-254 governing “Decision of the Design Review Board.” This is not and was never an administrative application under Section 118-260, which grants the Planning Department with administrative authority to adjudicate certain applications that concern “minor” alterations to existing buildings. The instant Application in this case concerns demolition and new construction of a large multi-family project. The City also avers in its Response Brief that the Staff MATTER NO. SM-2022-001 13 possesses authority to make certain determinations on an administrative basis, and what was done in the DRB Order is authorized by the City Code in Sections 118-260 and 118-264. City Brief at 12-13. The City confuses, however, the quasi-judicial duties and determinations of the DRB Board with the limited administrative approvals authorized by the Code. Section 118 of the Code confirms what is to be adjudicated by the DRB, and what may be determined by Staff on an administrative basis. The City’s suggestion in its Brief that the Staff can use the administrative approval authorization for modifications to existing buildings as authorization to make final decisions on applications for new construction that come before the DRB is simply incorrect under the Code’s clear text. Compare §118-254 with §118-260. B. Approval of Applications Before the DRB Under the Code’s Design Criteria is Not a Mere “Ministerial Act” or “Condition.” Meanwhile, the Developer with its Brief quotes the Order in an attempt to defend it, but its text provides no comfort, stating that certain conditions are “to be reviewed and approved by staff, consistent with the Design Review Criteria and/or directions from the Board.” Developer Brief at 29 (quoting the Order, emphasis MATTER NO. SM-2022-001 14 added). This procedure is contrary to the Code. The Developer then tries to equate this kind of approval under the Design Review Criteria with more typical mere “ministerial” acts such as making sure that the ultimate building permit conforms to the decision as approved by the DRB. Developer Brief at 29-31. But that is not what is at issue here. The text of the Order actually instructs the Staff to decide and approve under the DRB Code-based design criteria factors, which is an exercise of local government authority that is expressly limited to the DRB itself under the Code. What is more akin to a true “ministerial act” is what the Code actually says about the role of the Planning Staff upon approval of an application by the DRB: (d) Upon approval of an application by the board, the planning director or his authorized representative shall stamp and sign three sets of plans. Two sets of plans shall be returned to the applicant who may then submit an application for a building permit. The remaining approved plans shall be part of the board's official record and shall be maintained on file with the planning department. The board's decision shall be set forth in a written order, specifying the reasons for such decision. §118-254, City of Miami Beach Code of Ordinances (emphases added). Thus, the Code contemplates that the Planning Staff need MATTER NO. SM-2022-001 15 only stamp and sign three sets up plans following DRB approval. The Developer likewise seeks to minimize the effect of the DRB Order’s directive for future Staff approvals as “conditions.” Developer Brief at 31. This argument doesn’t obtain, either. It is true that “conditions” are a typical and essential component of the development orders of local government, including the development orders issued by this Honorable Commission. For example, a development order may have a condition that an applicant convey a defined right-of-way, or a condition that the applicant use a certain percentage of locally-owned contractors or a certain number of minority employees on a given project, or any other number of conditions that the quasi-judicial board may impose. That is a far cry from what was done here, to-wit: instead of approving the Application under the Code-based factors and imposing certain defined conditions, the DRB Order instructs the Staff to approve the Application under the Code-based factors. This is not the public hearing procedure imposed by the Code upon which the residents are entitled to rely. The Code is in place to prevent this exact kind of mischief. The DRB Order under review takes what should be a public determination in the sunshine and avoids further public MATTER NO. SM-2022-001 16 participation by making certain approvals administrative and thus behind closed doors. Zoning determinations by local government are required to adhere strictly to Code-based procedural requirements, less the action is void. E.g., Webb v. Town Council of Hilliard, 766 So. 2d 1241, 1244 (Fla. 1st DCA 2000) (“Attempts of local government to grant zoning changes without compliance with procedural requirements have been deemed invalid and void.”); City of Miami Beach v. Consolo, 279 So. 2d 76, 79 (Fla. 3d DCA 1973). III. The Board Departed From the Essential Requirements of Law When It Did Not Base Its Decision on Substantial Competent Evidence Tracking the Code-Based Factors. The DRB Board is only authorized to grant an application in the presence of substantial, competent evidence that establishes satisfaction of the Code-based criteria set forth in Section 118- 251(a) of the Code. The Professional Staff merely recited “Satisfied” or “Not Applicable” as to each of the governing criteria. (AP:268 - 270). Not only is this insufficient as a matter of fact and law, it does nothing to counter the substantial competent evidence offered by the Appellants in the form of testimony going to the incompatibility of the Project with nearby adjacent structures. MATTER NO. SM-2022-001 17 As argued by the Condominium Associations in their Briefs, the extensive testimony and written submissions of the Appellants tracking the Code-based design criteria stand in stark contrast to the “satisfied” conclusions in the Staff Report. While the City and Developer cite to reams of application materials in the City file, this does not establish that the referenced material are relevant to the satisfaction of the nineteen Code-based design criteria. The law requires that quasi-judicial boards in zoning proceedings must base their rulings upon the record evidence going to the governing Code- based factors. “Decisions that are not based on a local government’s published criteria or factors constitute a departure from the essential requirements of law.” Alvey v. City of North Miami Beach, 206 So. 3d 67 (Fla. 3d DCA 2016) (granting rezoning improper when based on the potential economic benefit to city, which was not part of the governing code’s criteria); City of Naples v. Cent. Plaza of Naples, Inc., 303 So. 2d 423 (Fla. 2d DCA 1974) (finding denial of special exception improper because it was based on development’s traffic impact and demand on utilities when these were not part of the city’s published criteria). Moreover, the fact that the final DRB Order requires the MATTER NO. SM-2022-001 18 Applicant to submit additional or updated site plans and drawings to satisfy the Code requirements necessarily means that the application as submitted and updated by the time of the last public hearing did not satisfy the Code criteria sufficient to warrant approval of the application. Indeed, the Code expressly requires that the DRB in its Order must set out its reasons for its decision of approval: “The board's decision shall be set forth in a written order, specifying the reasons for such decision.” §118-254(d), City of Miami Beach Code of Ordinances (emphases added). If the universe of evidence in support of the application truly satisfied the Code, then follow-up submissions and determinations by Staff are not necessary. Finally, the Code clearly contemplates that the DRB set forth its reasons in support of approval, not bury those reasons in future Staff determinations to be made after the close of the proceedings. CONCLUSION Based upon the foregoing reasons and legal authority, reversal of the Board’s Order is both necessary and justified. The Commission is respectfully requested enter a Resolution reversing or Quashing the Order of the DRB entered on this application. MATTER NO. SM-2022-001 19 Respectfully submitted, Paul C. Savage, Esq. Florida Bar No. 088587 Rasco, Klock, Perez & Nieto, P.L. 2555 Ponce de Leon Blvd. Suite 600 Coral Gables, Florida 33134 Email: psavage@rascoklock.com Telephone: (305) 476-7000 Counsel for Appellants Thomas Hahn and David Sebbag By: Paul C. Savage Paul C. Savage, Esq. Date: June 6, 2022