R7A 10/17/2007 CM edited by G. Held~"
12:57:44 p.m.
R7A A Resolution Considering An Appeal Of A Design Review Board Decision
Pertaining To DRB File No. 9024, Located At 1330 West Avenue, The Waverly.
11:30 a.m. Public Hearing.
(Planning Department)
(Continued from September 5, 2007)
ACTION: Public Hearing held. Resolution No. 2007- 26690 adopted. Motion
made by Commissioner Steinberg to affirm the Design Review Board decision;
seconded by Commissioner Gross; Voice vote: 5-0; Absent: Commissioners
Cruz and Gongora. Jorge Gomez to handle.
Tucker Gibbs, Esq., representing Waverly South Beach Condominium
Association, presented his argument. He explained that this condition does not
require an open bay walk until a bay walk is first built to the south. In the review
of this appeal, he requested the incorporation of the entire record into the
proceeding; and to reverse, remand or modify the DRB decision} ~e City ~'
Commission has to determine that the board did not provide procedural due
process, observe essential requirements of law or base its decision on
competent and substantial evidence. He objected to the process as interpreted
by the City Attorney; and explained that his client was asked to present a brief,
pursuant to Section 118-262, which states that appropriate legal brief shall be
filed no later than two weeks prior to the public hearing to consider the appeal. In
addition, no response brief was required of the City, which puts his client at a
disadvantage, ~e presented the case over a month ago and he heard a response , j "~
from the City Attorney's Office for the first time and added that that is not an
appropriate appellate procedure.
Jose Smith, City Attorney, explained that the City Code requires the appellant to
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submit a brief; he added that he does not recall whether there is a reference
the Code as to whether or not the City has to respond to the brief.
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Gary Held, Firstity Attorney, explained that there is no provision in the City
Code for a response, but clarified that the City Attorney's Office would respond to
the objection that it does not create a disadvantage.
Tucker Gibbs, Esq., representing Waverly South Beach Condominium
Association, stated that this is an appellate proceeding and he has never been
involved in an appellate proceeding where he presented his case and the
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opposite~ has not been able to present their response.
Mayor Dermer stated that his objection would be noted for the record and that
the record requested would also be incorporated.
Tucker Gibbs, Esq., representing Waverly South Beach Condominium
Association, clarified that the Waverly is not seeking the elimination of the bay
walk; in fact, the Waverly has agreed to open the bay walk to the public upon
completion of a security fence after the seawall repairs are completed, pending
resolution of this matter in court. He stated that he will show that the DRB failed
to apply the correct law when it determined that the condition of the 1997 DRB
order requires a public bay walk to be open prior to the condition of the bay walk
to the south of the Waverly's property line. Ignoring the plain language of
condition, th level f the DRB order is a failure to follow the essential 7
requirements of law. The essential requirements are the City's Code and the
Order which it is being appealed from. There is no code provision in the City that
requires a bay walk as a condition for development, and even if the condition was
authorized, the language of the order itself "a bay walk extension from the south
side of the property' speaks specifically to a bay walk extension, which is defined
as an extension, enlargement or to lengthen and this is not a bay walk extension.
At the Shoreline Review Committee in 1997 the applicant's attorney made that
point when he stated that a bay walk would eventually be provided; the desire
was to open a bay walk when it is connected and safe. The applicant was clear
that a bay walk extension would be open after a bay walk to the south was
complete because of safety issues; and there was no opposition from City staff.
He explained that the issue to the developer was safety; the issue of liability is an
issue for the developer and for his client. His clients asked the City, now that the
bay walk is required, if the is City going to indemnify them or if the City is going to
protect his clients since the public will be walking on that property. The Shoreline
Review Committee voted to approve this project as presented, with the proviso
that the bay walk would not be open until it can be extended from the south, and
stated that the City did not meet the requirements of applying the law correctly,
and that there was no competent and substantial evidence presented to the DRB
which supports their determination that the bay walk needs to be open now.
There is no explanation, testimony or any other evidence that the use of the
language "a bay walk extension from the south side is required" means anything
other than what it says; that a public bay walk will be extended from the public
bay walk to the south when that bay walk is completed. He urged the City
Commission to grant the appeal, reverse the DRB.
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Gary Held, Firs~City Attorney, responded to Mr. Gibbs' objection by stating that
he provided Mr. Gibbs this morning with copies of all authorities and statute that
he intends to discuss in this argument. He explained that in 1997 the DRB
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imposed a condition on the ire project, the predecessor to the Waverly,
as follows: "a bay walk extension from the south side of the property north into
the future park area shall be required." The condition was recommended as part
of the staff report for that application; the applicant did not object to the condition
at the time of the DRB hearing and did not appeal the decision of the DRB when
it approved the project and imposed the condition. This appeal arises from the
Waverly Condominium Association's request to the DRB for clarification of the
condition nine years later; the Waverly Association asserted to the DRB that its
bay walk should not be opened at this time because it argued that the condition
actually required that the property to the south, which is a single family
residence, (DRB transcript pages 10-11) had to have provided a bay walk that is
open to the public before the Waverly should be required to open its bay walk.
The Waverly had the burden below of establishing before the DRB that the
Waverly's interpretation of what the DRB adopted in 1997 was what the DRB
then intended. The DRB this year rejected the Waverly's argument denying its
request for clarification because the Waverly failed to provide sufficient evidence
to support its interpretation.
Mr. Held~eir~eel-e~# the arguments made by The Waverly Association:
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1) the word "extension" requires that until there is a bay walk connection to the
south, The Waverly need not make its bay walk open to the public -there is
nothing in the DRB's condition that suggest that the Waverly's bay walk need
not be open until another property's bay walk is provided; the Waverly did not
offer any evidence at the hearing as to what the original DRB in 1997
considered or discussed at the hearing in adopting that condition and
because of that failure, the DRB was unable to, nine years after the condition
was adopted to clarify what the original board intended beyond the
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cor itier~s=plain and obvious m aning. He read language from recent cases
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from the Third^ ppeals He explained that the use of the word
extension does not require that the bay walk to the south be ready to connect
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to the Waverly's bay walk at the time of ~f opening; if an extension were
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required at the time of opening, the bay walk can easily extend into the
land to the north of the Waverly, the city's street and park to the north.
2) the Shoreline Review Committee did not require them to open a bay walk
before the bay walk to the south is open -the condition in question is a DRB
condition, not a Shoreline Review Committee condition. The committee
makes recommendations to the DRB; any recommendation to the contrary
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mro~tfd simply weld not followed by the DRB in 1997. The approved plan by
the committee showed gates, not a fence or solid wall as presently exists at
either end of the Waverly's bay walk end of the property (transcript pages 7-
8); moreover, the Shoreline Committee's order does not contain the
limitations suggested by the Waverly (DRB transcript page 79). More
importantly the DRB could not clarify the 1997 DRB condition based upon
discussion had during Shoreline Review Committee hearing; the Waverly did
not provide any evidence of the DRB's deliberations in 1997 that would have
convinced the DRB of the Waverly's interpretation.
3) The Waverly argued to the DRB that they were an innocent purchaser, and
that the bay walk is part of the condominium unit or a successor in interest of
this property without knowledge of the condition; the DRB rejected this
argument as it had never been a sufficient justification, for avoiding a legal
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requirement imposed by a Board, and not a sufficient justification now.
4) in October 2006 the Waverly argued that requiring the bay walk to open
without an extension to the south creates a security issue; however, the
unrebutted testimony before the DRB at a hearing in 2006 by Mr. Mooney,
City's Preservation and Design Manager (transcript 11-12, 79-80) was that
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the bay walk did not neec~a'"dead end at the south end of the property, as
there is a 20 foot set back all along the south side of the Waverly's property,
and a walkway could be designed to connect from the bay walk to the
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sidewalk on West Avenue. With pFe{~ertq security measures, Mr. Mooney
explained that there are a number of ways to secure this area (DRB transcript
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page 80~lFr respect to potential liability of the property owner, Mr. Gibbs
has already acknowledged the existence of section 375.251 Florida Statue
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which relieves the rjp~or of liability when it opens its property to the public.
5) The Waverly also argued that the DRB did not have authority to impose a bay
walk condition, that if any board could it was the Shoreline Committee, and
that the committee accepted the security issue presented and did not require
the bay walk to be opened; however, even if it were arguable that the DRB
lacked authority to impose the bay walk condition, the applicant at the 1997
DRB hearing, did not object to the condition in~ report, and according to
the unrebutted testimony of staff at the October 2006 hearing, (transcript
pages 14-15), even if the Waverly's predecessors did not accept those
conditions, it is unacceptable that the original developer or any successor
could allow a Board Order to become final and complain about the conditions
of the order almost a decade later. He gave samples of similar court
decisions.
Mr. Held continued stating that any argument in this appeal or any other case
challenging the validity of the bay walk condition has to be rejected on the basis
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of estoppels, Ia~la~S, failure to exhaust administrative remedies and the running
of thetatute of limitations. The pursuit and completion of construction and the
acceptance of conditions cannot now be withdrawn. The effect of the
developer's actions is the equivalent to making the bay walk condition a voluntary
pl~~r or a known waiver of constitutional rig ~ The Waverly today has not
shown that the DRB failed to provide procedural due process, observe the
essential requirements of law or based its decision on substantial and competent
evidence. He concluded by stating that, based upon the facts discussed and the
legal conclusions, the City Commission should affirm the decision of the DRB.
The Waverly should be required to open its bay walk to the public as soon as it is
safe to do so.
Tucker Gibbs, Esq., explained that they are not challenging the validity of the
condition that a bay walk extension is built from the south; and that was
understood. The issue is the liability of having a dead end for 270 feet from that
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park ending on their south side whe~is open to the public. In 1997 his clients did
not object because it was an extension to the south. They are not trying to avoid
their legal responsibility under condition 10; they intend to open the bay walk,
and in good faith, when safe. The City made the requirement of that dead end,
and if there is liability problem, extend public access all the way to West Avenue,
expand the liability and allow the public to go through the property, and that was
not what his client agreed to. The fact is that the DRB Order itself is clear; the
bay walk does not extend to West Avenue and is not relevant to this appeal.
Discussion held.
Motion made by Commissioner Steinberg to affirm the DRB action; seconded by
Commissioner Gross.
Tucker Gibbs, Esq., spoke.
Discussion continued.
Gary Held, First City Attorney, made a correction for the record, that there is an
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existing bay wall park property to the north.
Discussion continued.
Commissioner Steinberg stated that the word "extension" is clearly defined as to
what a bay walk extension is, from the south side of the property north into the
future park area; the language is clear.
Mayor Dermer thanked Gary Held and Tuck Gibbs for their arguments.
Handout or Reference Materials:
1. Ad in The Miami Herald - Ad # 444
F:ICLERICOMMONt20071200710171R7Aa.doc