LTC 154-2004 Design Review Board Decision- DRB File 17373 (The Malborough House)
CITY OF MIAMI BEACH
Office of the City Manager
Letter to Commission No, 154-2004
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From:
Mayor David Dermer and
Members of the City Commission
Jorge M, Gonzalez ~-:H!.
City Manager
Date: June 24, 2004
To:
Subject: DESIGN REVIEW BOARD DECISION - DRB FILE 17373 (THE
MARLBOROUGH HOUSE)
At the May 26th, 2004, Commission Meeting Resolution No. 2004-25569 was passed setting
a public hearing pursuant to City Code Section 118-262, to review a DRB decision
requested by several unit owners of the Marlborough House Condominium, The public
hearing is scheduled for the July 7,2004 Commission Meeting.
City Code Section 118-262 further states that "A full verbatim transcript of all proceedings
which are the subject of the appeal shall be provided by the party filing the petition; the
verbatim transcript shall be filed no later than two weeks prior to the first scheduled public
hearing to consider the appeal."
The verbatim transcript was received in the City Clerk's office on June 23,2004, which is
within the required time frame.
Attached is a copy of the transcript from the Design Review Board meeting of April 20,
2004.
JMG\~~\PC
c: Robert E. Parcher, City Clerk
Jorge Gomez, Planning Director
F:\CLERI$ALLIPAULAICommission Meetings\2004\070704\DRB-MARLBOROUGH HOUSE L TC,doc
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, 1 CITY OF MIAMI BEACH
DESIGN REVIEW BOARD
2 APRIL 20, 2004
3
4
5
6
7
8 THE MARLBOROUGH HOUSE
9 ORB File No. 17373
10 5775 Collins Avenue
11
12
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14 Members of the Board
15 Present (')
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16 Chairman Gregory Neville _i'"~ ..""
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Pete Chevalier c) "
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17 Gary Knight .,..., r"',J
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Mike Steffens i .j
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21 CITY ATTORNEY
22 Gary Held
23
24 STAFF
r 25 Thomas Mooney
ORIGINAL
METRO DADE COURT REPORTERS, INC.
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MR. MOONEY: Okay, the last item on the agenda
2 is GRB File Number 17373, 5775 Collins Avenue, The
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3 Marlborough House Condominium, and the applicant is
4 requesting a rehearing of the previously issued Design
5 Review approval for the replacement of concrete balcony
6 railings. If the rehearing is granted, the rehearing may
7 take place immediately.
8 This application was approved by the Design
9 Review Board on July -- January 20th of this year and it
10 basically approved the modifications to the balcony
11 railings sought by the condominium association.
12 One of the residents of the association, unit
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owners, has requested a rehearing and the basis for the
14 rehearing is attached in the application.
15 Briefly, as indicated in the staff analysis,
16 staff has found that after our review of the building
17 card for the subject property, five building permits were
18 issued for balcony enclosures for units 101, 501, 601,
19 1001, 1101 in 1965.
20 Notwithstanding this, the matter is a legal
21 issue between the condominium association and the unit
22 owners. Typically, balconies are most commonly treated
23 as limited common elements in condominiums under the
24 control of condominium association.
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Once the applicant can submit information
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showing that the balconies of the building are not under
2 the purview of the condominium association, staff
3 recommends the conditions of the final order for the
4 subject property remain unchanged.
5 In view of the analysis in the report, staff
6 recommends that the request of the rehearing for the
7 subject property be denied and the approval of the
8 previous applicant be reaffirmed subject to the original
9 conditions of the January 2004 order.
10
CHAIRMAN NEVILLE: Gary, this is fairly recent.
11 Were you on the Board when this -- okay, all right.
12
MR. HELD: We need to make sure we have a
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quorum. I'm noticing that a lot of chairs have been
14 vacated.
15 (Waiting for Peter Chavelier) .
16
CHAIRMAN NEVILLE: There we go. Peter. Okay,
17 we have a quorum.
18
MR. CHAVELIER: I'm back.
19
CHAIRMAN NEVILLE: Okay, which one -- you wrote
20 the letter?
21
MR. GIBBS: Yes.
22
CHAIRMAN NEVILLE: Mr. Rosen --
23
MR. ROSEN: I represent the condo association
24 and they're appealing the Board's ruling last month.
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CHAIRMAN NEVILLE: So he's the applicant?
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MR. ROSEN: He's the applicant, right.
2
CHAIRMAN NEVILLE: So you have to wait and let
3 the applicant speak.
4
MR. ROSEN: Absolutely, right.
5
MR. GIBBS: It's a motion to reconsider. My
6 name is Tucker Gibbs. I represent Mercedes Rodriguez and
7 other owners who own condominium units at Marlborough
8 House. In particular, Ms. Rodriguez owns unit 401.
9
MR. STEFFENS: Before you continue, can I ask
10 the city attorney a question?
11
CHAIRMAN NEVILLE: Yes.
12
MR. STEFFENS: Their attorney is representing my
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condominium in similar situations.
14
MR. HELD: When you mean similar situations
15
MR. STEFFENS: We have balcony repair going on
16 with enclosures, et cetera, et cetera, et cetera.
17
MR. HELD: Are you on the board with that
18 association?
19
MR. STEFFENS: The condominium association?
20
MR. HELD: Yeah.
21
MR. STEFFENS: I am on it now. I just got on it
22 about a month ago.
23
MR. HELD: Okay.
24
MR. STEFFENS: Do I have a conflict?
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MR. HELD: I'm going to need more information,
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so can we recess for one minute while I discuss it?
2
MR. STEFFENS: Okay.
3
(brief recess)
4
MR. HELD: Okay, Mr. Chair, after reviewing the
5 facts with Mr. Steffens, it doesn't appear that he has
6 any financial interest in this matter and his association
7 is a client of the attorney and it's not the reverse, so
8 there is no issue as to his financial interest in any
9 relationship with her that would affect this decision.
10
CHAIRMAN NEVILLE: Okay, good, so we still have
11 a quorum.
12 And, Mr. Gibbs, is that acceptable to you?
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Mr. Gibbs?
14
MR. GIBBS: Yeah, that is acceptable to me.
15
As I said, I represent Mercedes Rodriguez. She
16 owns Unit 401 at the Marlborough House. And the reason
17 why I represent Ms. Rodriguez is because Ms. Rodriguez
18 has a balcony enclosure and what we've asked for is a
19 reconsideration, a rehearing on the Design Review File
20 17373 dealing with Marlborough House in where you
21 approved the replacement of concrete filigree balconies
22 on the north, south and east elevations of the building
23 with aluminum and glass balcony treatments.
24 And the basis -- my understanding, I think
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you're going to hear from Marlborough House, the basis
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for their request, for the approval, was a Notice of
2 Violation they received in June of 2002 that there was,
3 quote, spalling concrete off the balconies. As we've
4 just heard, it's not uncommon in some of the older
5 condominiums.
6 The order that we have a problem with, and that
7 we'd like to be heard on, has specific language that says
8 balcony enclosures may only be maintained, installed or
9 reinstated, if permitted by the condominium association,
10 if required by Florida law, in parenthesis, and city code
11 requirements and may require Design Review Board
12 approval.
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Your staff report that you have in front of you
14 also notes that there's five units, including my client's
15 Unit 401, 501, 601, 1001 and 1101, that were issued
16 building permits. Those are all on the east line, of the
17 east facade of the building facing the ocean. Of those
18 five, I think we've determined that at least two of them
19 remain with balcony enclosures.
20 Your report further states that -- as Mr. Mooney
21 said, that issues relating with these enclosures are a
22 matter of between the association and the unit owners.
23 While this may be true on one level, which is the
24 question of whether the association has the authority to
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order the removal of the permitted structures, in terms
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of getting these balcony repairs done, on another level
2 it becomes a critical issue for you, because at least two
3 legal nonconforming balcony enclosures exist. And by
4 their existence, they provide a problem for the decision
5 that you made.
6 If there are two balcony -- two balcony
7 enclosures on the east facade and you all have authorized
8 the replacement of the concrete balconies with the
9 aluminum and glass balconies on that east facade, and the
10 association will tell you that it is virtually impossible
11 to install those aluminum glass balcony structures
12 without removing or without considerably altering those
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balcony enclosures, you've got a problem. You've got a
14 problem with the fact that the balcony enclosures, the
15 two at least, exist legally. They have building permits.
16 They've been in legal existence since 1965. That's when
17 they got their building permits. So you have that
18 problem and you have your order, which says you're going
19 to have these glass balcony fixtures on the east facade.
20 And so the problem with your order is, how does
21 it get enforced? Do you all intend -- because I
22 understand that from your code, you require -- your
23 standards require a uniform aesthetically-pleasing
24 facade. Uniformity is a key issue from reading the
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materials about this decision. The Design Review
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criteria talk about appearance and the aesthetics.
2 And the question I pose to you, and the question
3 that these legal balcony enclosures present is, what
4 happens to that part of the criteria when you have a
5 facade that is everything, all balconies except two, have
6 these -- have these aluminum and glass treatments? And
7 that's a concern.
8
The concern, obviously for my clients, is if you
9 are going to authorize the use of these aluminum and
10 glass treatments, how is that going to impact my clients
11 with legal balcony enclosures and that's the concern.
12 Now the association -- and I don't want to drag
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the condo business in here, but I will say one thing, the
14 condominium association has told us there's a provision
15 in the documents that says the condominium association
16 can basically tell you to get rid of your balcony
17 enclosure.
18 And I posit to you, just for the record, that
19 provision of their declaration was passed, it was adopted
20 in 1995, while my client and the other legal enclosure
21 were permitted by the City of Miami Beach in 1965. They
22 are legal nonconforming structures.
23 So the question is, is how does this impact the
24 condominium association? How does it impact you? The
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decision you're making in many respects goes against the
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very standards that you all apply, the standards of
2 uniformity and something to be aesthetically pleasing,
3 not only for the people who live there, but the people
4 who have to look at it.
5 So I present to you, we've got a problem that
6 you're going to have Mrs. Rodriguez and Mrs. Kaiser and
7 those two units are going to basically say to the
8 association, no, you don't have the authority to do this.
9 You have an order that you've issued. The building
10 department has records that says these two units are
11 legal. And so when they go to get their permit at the
12 building department, I assume, based on your order, the
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building department will issue them a permit.
14
And I have a bunch of questions. Can the
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building permit
can the building department issue a
16 building permit to put in these balconies and exclude the
17 two balconies that may have absolutely no spalling, no
18 damage, were not cited, these particular two?
19 So can the building department issue the permits
20 that will allow two nonconforming balconies at this point
21 based on your order? And that's why we're asking for the
22 rehearing. If nothing else, I'd like to see at least an
23 amendment dealing with the east facade. These two units
24 are on the east facade, but you're going to create a mess
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and you're creating a mess, by the way, because the
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condominium association -- and I don't want to drag
2 condominium stuff in here, but this isn't going to be the
3 first time you hear this, if this is the first time. And
4 I doubt
5
MR. HELD: Mr. Chairman, the building
6 department -- we both have comments, so before Mr. Rosen
7 responds, maybe Tom can make a statement, then I can make
8 a statement.
9
MR. STEFFENS: I have a question for Mr. Gibbs,
10 because I made the motion to approve this at the meeting
11 where it was approved and I tried specifically to craft
12 the motion so that it wouldn't be an issue that would
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come back here to us.
14
MR. GIBBS: Sorry.
15
MR. STEFFENS: Because what I tried to say was
16
that
and I tried to craft it, because I was familiar
17 with this problem, that we were approving this for
18 aesthetics only, that the means and methods of attaching
19 this are up to the condominium association and the
20 condominium association needs to make that determination.
21 There are many ways to attach balconies to -- balcony
22 railings to balconies and they need to take into account
23 all of the situations in determining how to do that. And
24 if they want to do it in a easy, cheap way that requires
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balcony enclosures to come off, that's the condominium
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association's decision. If they want to spend more money
2 and more engineering time and do it in a way that doesn't
3 require enclosures to come off, that's a condominium
4 association decision. That shouldn't be a decision for
5 us.
6
MR. HELD: Mike, actually, the way we drafted
7 that condition was that it's a condominium association
8 decision only if required by Florida law and that's
9 something that none of us can resolve for them.
10
MR. STEFFENS: When you say, "only if required
11 by Florida law," what do you mean?
12
MR. HELD: The authority of this association
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under its bylaws.
14
MR. STEFFENS: Of that association?
15
MR. HELD: Yes, with respect to these balconies
16 as limited common elements. So that is the dispute that
17 they're having, the effect of a city-issued building
18 permit, which normally would create grandfathered rights
19 and the ability of this association to come in and say we
20 need to perform this work and we're taking this position
21 with regard to these existing units.
22
MR. STEFFENS: I think there's another
23 decision
24
MR. HELD: It's not really a design issue, which
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is why we drafted it in a way that would be resolved by
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others.
2
MR. STEFFENS: I think there's another
3 decision that's being made here that's affecting the
4 design issue is, the condominium association is saying,
5 "We don't want to spend more money to design these
6 balcony railings in a way that's not going to interfere
7 with the enclosures. We would prefer to interfere with
8 the enclosures and save money."
9
MR. HELD: Well, I don't know what they're
10 saying, because at this point they haven't said that and
11 I also need to quote two sentences for you from the
12 rehearing section, which is what the appellant's burden
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or the movant's burden would be.
14
The first is, what the authority of the Board
15 is, you can rehear a case, take additional testimony,
16 either reaffirm your previous decision or issue a new
17 decision reversing or modifying your previous decision.
18 The movant's burden is the petition for rehearing must
19 demonstrate to the Board that there is newly discovered
20 evidence, which will probably change the result if a
21 rehearing is granted or the Board has overlooked or
22 failed to consider something, which renders the decision
23 issued erroneous.
24 And the way we drafted this condition is that,
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the Board basically chose not to take a position on the
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balcony enclosures. It would be an issue resolved by
2 others and we specifically crafted the condition to
3 resolve that.
4 So our view is that this is still not something
5 that is before you, though I think one of the things that
6 they are asking for guidance on is the Board's preference
7 on uniformity or not, whether from a design point of view
8 accepting a limited number of enclosures that were
9 grandfathered as something that's acceptable to the
10 Board, but my understanding of the Board's decision last
11 time was that you were not taking a formal position on
12 it.
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MR. STEFFENS: Well, I think our position was
14 that, if the enclosures remain behind the newly installed
15 balcony railings, that's something that we would have to
16 accept.
17
MR. GIBBS: And could I respond to that?
18 Because the understanding I have from the association is
19 the only way -- the only way to install those particular
20 items is by installing them on top of the slab as opposed
21 to the side of the slab.
22
MR. ROSEN: No.
23
MS. GIBBS: And for that reason the balcony
24 enclosures would be encroached upon. It's our position
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that we have no problem with the balcony -- with the
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treatments that they propose as long as they can be
2 attached to the side and would not impact the balcony
3 enclosures.
4 But I have a couple of other issues that I'd
5 like to bring up, and that deals with, as Mr. Held said,
6 the issue of uniformity. Your order specifically says
7 these are okay, these new treatments are okay and we want
8 them to be uniform, but if that clashes with the idea
9 that they are legally nonconforming balcony enclosures, I
10 need to know and my clients need to know, does this order
11 give the building department the authority to issue
12 permits for the new railing where it will result in the
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demolition of a legal nonconforming structure?
14
MR. STEFFENS: That's not really for us to
15 decide, is it? Wouldn't that be the chief of the
16 building department?
17
MR. MOONEY: I can answer that. The building
18 department can issue a permit for whatever you bring
19 before it as long as it meets the standards of the
20 Florida Building Code. If you want to leave those
21 enclosures up and not replace those balconies, and if the
22 condo association agrees to that, the order gives you the
23 flexibility to do that.
24
MR. GIBBS: But the problem is, and here's the
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problem, it's the condominium association you're giving
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the authority to to basically take away a property right
2 that my client has in the balcony enclosure to which she
3 got a building permit, and that's the problem.
4
MR. STEFFENS: We're not forcing them to do
5 that. We're saying aesthetically -- we're saying
6 aesthetically this is what we prefer.
7
MR. GIBBS: What we want.
8
MR. STEFFENS: How you achieve that
9 aesthetically is completely up to the condominium
10 association.
11
MR. GIBBS: Let me ask you a question. If they
12 cannot achieve that -- and give you a hypothetical. If
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they cannot achieve that because there's some court order
14 that says that this balcony enclosure cannot be touched,
15 and in that case, where do we go? I mean, if I go to
16 court tomorrow and get an order from a judge saying that
17 my client has a legal right to that balcony enclosure and
18 the association has no right to remove it and the
19 association has said we cannot put this -- this new
20 balcony treatment in without taking out your client's
21 balcony, without taking out her balcony enclosure, then
22 where do we go?
23
MR. STEFFENS: Then you have to come back here
24 for design approval for another design.
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MR. GIBBS: So the association -- and so then
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the association would be basically forbidden to build any
2 balcony enclosures until a court would rule and if a case
3 has been filed. My concern is, if we walk away from here
4 and if we don't prevail, my clients would appeal, and I'm
5 sure that if the condominium association doesn't prevail,
6 they will appeal to the city commission. And at the end
7 of the day, the question is, can they start building
8 tomorrow?
9
MR. STEFFENS: Then they're taking that risk.
10
MR. GIBBS: I understand that. My point is, the
11 question I have is about the building permits.
12 And, Mr. Mooney, are you telling me that if the
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condominium association applies for a building -- and I
14 assume they have, for a building permit to be able to
15 install these particular balcony and treatments, that the
16 building -- if the association says, excluding units 401
17 and 1101, the building department will do that. How
18 about if the owner of 401 and 1101 go to the building
19 department and say, "Hey, these are legal nonconforming
20 uses, when they come to ask for that permit, we want to
21 be excluded from that"?
22
MR. MOONEY: My understanding from the building
23 official, the president of the condominium association
24 has to sign the application, that there needs to be some
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representation that the person effectuating the
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application is authorized by the condominium association
2 to do that.
3
MR. GIBBS: By the association itself, but not
4 the individual.
5
MR. MOONEY: Now, if the individual comes to the
6 building department and says, "I don't agree with the
7 plan that has been submitted to the building department,
8 I don't want them touching my unit", that I couldn't
9 answer.
10
MR. STEFFENS: Oh, Mr. Gibbs, can I ask you a
11 question.
12
MR. GIBBS: Sure.
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MR. STEFFENS: In Number 4, on your letter, you
14 say the balcony enclosure in Unit 401 and other balcony
15 enclosures are not subject to the authority of the
16 condominium association.
17
MR. GIBBS: Yes.
18
MR. STEFFENS: If they're limited common area
19 elements, why are they not subject to the authority of
20 the condominium association?
21
MR. GIBBS: There's a question as to whether
22 they're even common elements to the association. The
23 documents -- and the condo attorney can talk about it,
24 the documents don't seem to explain in very much detail
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if they even are common or limited common elements, but
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there is case law and there's actually statutory law out
2 there that says, and it's akin to adverse possession, if
3 the association does not go out there and enforce any
4 provision saying no balcony enclosures, it's presumed
5 those balcony enclosures belong to those people. And
6 that's when I talked about litigation, that's what the
7 matter would be litigated on, would be that provision of
8 the Florida statute.
9
MR. STEFFENS: So if the condominium -- if they
10 are limited common area elements, then they would be
11 under the authority of the --
12
MS. GIBBS: I don't want to get into a
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discussion of that, because, one, I don't think it's
14 appropriate here, because our issue is design. Our issue
15 is basically creating two holes in a doughnut and you're
16 going to be surrounded by these. And that's the concern,
17 that when you all approve this, without knowing --
18 without knowing which units were legal and which were
19 illegal, I think you created a problem for yourselves and
20 down the road.
21 I think the way to resolve this, you know,
22 policy-wise, is the city needs to develop some kind of
23 standards that when a condominium association comes
24 before this Board and other city boards, that there's
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some statement that what they are requesting is something
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they actually can request. And I don't know -- I mean, I
2 understand the condominium
3
MR. STEFFENS: They can request to replace their
4 balcony railing. They can get different engineers and
5 different balcony railing manufacturers.
6
MR. GIBBS: I understand what you're saying.
7
MR. STEFFENS: There's a lot of options out
8 there.
9
MR. GIBBS: But the question is, if the building
10 department -- if these are legally constituted building
11 balcony enclosures, what is the impact on that? What is
12 the impact on that? Where -- remember, the whole reason
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this is before you it's because of a Notice of Violation
14 and if there was concrete spalling. I agree with you, if
15 there's concrete spalling on a legally constituted
16 balcony enclosure, they probably would have a problem.
17 My question, I've got a client who's got a
18 perfectly legal balcony enclosure and no damage to her
19 balcony and she's being made to take it down.
20 And, by the way, the Notice of Violation they
21 talk about in December 20th in December letter from
22 the association's engineer, it was 15 to 20 percent of
23 the balconies had spalling. It had problems. Now I
24 understand it's a 40-year old building. Don't get me
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wrong, but the issue is -- you know, this is like when
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the cure is worse than the disease.
2 MR. HELD: Mr. Chair, I'd just like to remind
3 the Board of time. We have about -- I'm trying to get a
4 sense. I know Mr. Rosen wants to make a statement.
5
MR. ROSEN: I don't want to make a statement,
6 because I think you clarified most of it, because -- go
7 ahead, say what you want to say.
8
MR. HELD: I just want to read something. If
9 the Board is inclined to allow the work to continue, but
10 exclude the enclosures to allow that to work its way
11 through the courts, I've written something that may aid
12 the Board in doing that, so
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MR. STEFFENS: But we excluded the enclosures
14 previously. We didn't say they had -- we didn't say they
15 had to take the enclosures off. We just said they had to
16 achieve that aesthetic appearance and if enclosures
17 remained in place --
18
MS. HELD: What Mr. Gibbs is saying, that's left
19 in ambiguity in the order. And I'm not necessarily
20 agreeing with that, but to resolve that ambiguity, I've
21 drafted some language and I'd like to read it and then
22 you go on with whatever you like to do.
23 So if a court of competent jurisdiction or other
24 authority enters an order or opinion grandfathering
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certain previously permitted balcony enclosures, this
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order, meaning the one you previously adopted, shall
2 otherwise be complied with without further order of this
3 Board, meaning that you would accept if some enclosures
4 (inaudible) by courts be allowed to remain without having
5 to come back with another order before this Board.
6 And then the other issue, what can the
7 association do in the interim? The association may
8 proceed at any time to replace railings on balconies not
9 affected by enclosure grandfathered claims.
10
MR. STEFFENS: Well, I think that the
11 condominium needs to make sure that they can achieve our
12 aesthetic goals before they start to do their job,
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because they could get halfway through the job, they
14 can't achieve the aesthetic goals and then they're going
15 to come back to us with a zebra or a camel or whatever
16 you want to call it and say we can't do this, we need to
17 leave this and this and this one the way it is.
18
MR. HELD: Well, there's only five units on
19 which there are legitimate grandfathered claims where
20 building permits were issued.
21
MR. STEFFENS: It's not the enclosure that's the
22 problem. We accepted the enclosure. If they can't put
23 the railings up, they're going to be leaving the old
24 railings in place and then we're going to have this
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spotted thing and that's -- I think that's the aesthetic
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problem. I think they need to make the determination if
2 they can achieve their goals, because otherwise they're
3 going to be coming back to us and saying, well, we put
4 balconies on the ones we could and we're not going to put
5 the railings on the ones we can't and we're just going to
6 leave it like this and then what are we going to do.
7
MR. ROSEN: The only thing I would like to add
8 to that order, with your permission, Mr. Chair.
9
CHAIRMAN NEVILLE: Go ahead.
10
MR. ROSEN: Is the fact those that are
11 legalized -- because out of the five units basically that
12 were suggested by Tucker, 401, 501, 1001, 1101, and the
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only one that has a legal right (inaudible) grandfathered
14 in was 401.
15
MR. GIBBS: 1101 also.
16
MR. ROSEN: No, 1101, they did all kinds of
17 repairs without any permit.
18
MR. GIBBS: I've got the building card.
19
MR. ROSEN: Well, you have a building card, but
20 that's about it. The idea is this. I don't mind what
21 the city attorney has said, but I don't want you to go
22 through 35, because 33 of these people with 33 of these
23 units were never certified, were never -- received any
24 type of legalization in any manner whatsoever. You're
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only dealing really with two. I'm interested in one
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thing, to tell you the truth.
2
MR. STEFFENS: Whether it's one or two or three
3 or four, I just don't want the building coming back later
4 and saying, look, we've installed 36 glass balcony
5 railings and we can't do four. We're going to leave the
6 building like this. We can't do three or we can't do two
7 or whatever the number is.
8
MR. ROSEN: This, to me, as I remember
9
MR. STEFFENS: I'm asking our attorney and our
10 staff member, because this could come back to us as a
11 zebra and then what do we do?
12
CHAIR NEVILLE: I mean, it really depends on
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which way you want to go. If it's determined by the
14 courts the ultimate outcome is that two balconies on the
15 east elevation can retain their enclosure and they do not
16 have to be repaired, I guess the question is, we can
17 probably answer it now, want to just leave those two
18 balconies alone. And then in some point in the future,
19 if the ownership changes and the new owners decide that
20 they want to reincorporate those balconies, perhaps at
21 that time they could change the balconies.
22 I mean, we've done this before on windows,
23 typically on low-scale buildings inside and outside
24 historic districts, you'll have condominiums where one
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unit owner wants to change the windows and they can't get
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all the other unit owners to agree. So we will approve a
2 change in windows for one unit, but that will set kind of
3 the master plan for all the remainder of the units, then
4 over time and attrition, changes in ownership, all the
5 windows will be eventually changed out, but because
6 they're individually owned as opposed to one ownership as
7 in an apartment, it's not something that's uncommon.
8 So I think if the Board was to approve something
9 like that, where you had a couple of anomalies for a few
10 years, that's just kind of the nature of the beast with
11 the condo association or with the condominium.
12
MR. GIBBS: But, Mr. Chairman, there's the issue
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of the aesthetics and that's the issue that I was
14 bringing before you is, how does it look?
15 I understand on low-scale buildings where you
16 can do that with windows. The idea of balconies that are
17 on the 11 Floor and on the 4th Floor on the eastern
18 facade of this building is -- and this building, by the
19 way, is -- you know, I think you all got the letter from
20 Raul Rodriguez. It isn't a building that is not of note.
21 It has some note to it. It was designed -- I mean
22
MR. ROSEN: Excuse me, Mr. Chairman, with all
23 due respect, I hate to interrupt you, but I know that
24 time is limited. I have not had a chance to speak at
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all. Not that any words of wisdom that I give are going
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to change any minds whatsoever, but you've gone on now
2 for 14 minutes and they're supposed to be out of here by
3 1:30.
4
MR. GIBBS: But it's not my fault that we were
5 scheduled last.
6
MR. ROSEN: Well, I understand, but you're going
7 on and on, and, to me, the extraneous matter that you're
8 bringing up right about how great the building is
9
MR. GIBBS: If you're dealing with the
10
standards
Mr. Chairman, if you're dealing with the
11 standards that you all have to apply, they deal with
12 uniformity and aesthetics and part of the aesthetics is
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the historic character of this building. And if that is
14 extraneous, then what are we doing here?
15
CHAIRMAN NEVILLE: Okay. Yes, Tom, what are we
16 doing here?
17
MR. MOONEY: I'd like to ask Tucker, what does
18 his client want?
19
MR. ROSEN: The client wants to delay this as
20 much as possible, that's all.
21
MR. GIBBS: Yeah, that's what my client wants.
22
CHAIRMAN NEVILLE: Would they allow -- if we can
23 build the railings, would they like to reconstruct their
24 enclosed balconies after the railings have been --
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MR. GIBBS: My clients have no -- my clients
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have said this, and we've said this to Mr. Rosen as
2 recently as three hours ago and we were rejected by the
3 Board -- by the condominium association, we have no
4 problem with the glass railings, if they can be attached
5 on the ends and it will not -- it will have minimal
6 effect on the balcony enclosures.
7 And I even stipulated that if we were to hire
8 our own engineer and architect to find out if it's
9 possible, and how it's possible and if it was possible,
10 they could allow to let the balcony enclosures remain and
11 they would get their glass balconies, we have no problem
12 with that. We put that on the table now. We have no
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problem with that.
14
CHAIRMAN NEVILLE: All right, does the Board
15 want to make a motion?
16
MR. STEFFENS: Condominium association --
17
CHAIRMAN NEVILLE: I think it's a dispute
18 between the association and the owner. I don't know what
19 we can do about it. I think we've --
20 MR. MOONEY: Mr. Chairman, let me suggest this.
21 I think one thing that the Board can do is, it could
22 perhaps make the condition very clear that with regard to
23 the balcony railings to the east, 'cause I think that's
24 the issue here, that this Board would be okay with those
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two anomalies remaining as they are and all the other
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balcony railings changing and then leave it up to the
2 condominium association.
3
CHAIRMAN NEVILLE: Why would we be okay with it?
4
MR. MOONEY: Well, if you are. If you're not,
5 then that's one thing, but if you are okay with that
6 'cause in the end that's, I think, what this dispute is
7 all about.
8
MS. DE LA CAMARA: Can I just briefly interject?
9 I'm sorry to do that, but I'm nervous about the time.
10 I'm Rosa De La Camara, with offices at 121 Alhambra
11 Plaza. I'm general corporate counsel for the
12 association. I represent 110 units there, 108 unit
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13
owners and their families in that building, and I've had
14 the pleasure of doing so for several years.
15
The question really is a question of fact. We
16 do dispute the allegations that there is no concrete
17 damage in Unit 401. There are, in fact, pictures showing
18 concrete deterioration and we've got a big block of
19 concrete around here that fell off the building last week
20 and almost hit somebody on the head.
21
MR. GIBBS: But not from 401.
22
MS. DE LA CAMARA: Excuse me. And this
23 association will not be held hostage by one unit owner
24 who has a pet peve of allowing her enclosure to remain to
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the detriment of 110 other owners. And Mr. Sways on is
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standing here behind me, I believe, and he is the
2 engineer hired by the association, completely
3 independent. And when he inspected the building in
4 January, there were 17 damaged balconies that were in
5 great dire straits. There are now 40.
6 And the fact of the matter is, that this board
7 of directors has a fiduciary duty to its 110 unit owners
8 to ensure that the building has safety, soundness,
9 health, welfare and structural integrity and this Board
10 will not assume the risk and the liability of having
11 chunks of concrete falloff.
12 And even though Mr. Gibbs may argue that the
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chunk did not falloff of Unit 401, it's a matter of time
14 that it will falloff, because concrete deteriorates and
15 rapidly moves, especially in oceanfront building. And it
16 is improper, really, to have one owner hold up the
17 process that is disallowing this Board, who has an
18 anxious desire and is anxious about it, to proceed with
19 the improvements to repair the building. It is really
20 something that they can't put off any longer.
21 This order is almost two years old, the Notice
22 of Violation. We've got the engineer. We've got the
23 contractor. Unfortunately, what we don't have is enough
24 time. So I'm speaking quickly, but I hope I'm making my
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point clear that this Board cannot and will not wait any
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longer to get the work underway. It's absolutely
2 mandatory and necessary that they start.
3
MR. ROSEN: The special master in this case --
4
CHAIRMAN NEVILLE: Could you hold the applause,
5 please. It's not going to
6
MR. ROSEN: The special master said that this
7 work had to be completed by April of this year or else a
8 thousand dollars a day fine would be levied.
9
CHAIRMAN NEVILLE: Let's close up it up to the
10 Board, because we have to get this meeting over and I
11 think everything that has been said --
12
MR. ROSEN: We would urge you to uphold the
,,--
13
ruling and adhere to the recommendations of the planning
14 department.
15
CHAIRMAN NEVILLE: Thank you, Mr. Rosen.
16
Peter.
17
MR. CHAVELIER: I would like to make a motion to
18 uphold our ruling as is.
19
CHAIRMAN NEVILLE: Anybody want to second that?
20
MR. STEFFENS: Do we need to make a motion?
21
MR. MOONEY: Yes, because you need to take
22 action on the request regarding the request for the
23 rehearing, so it will be, as Mr. Chavelier said, to deny
24 the rehearing and uphold your previous order.
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CHAIRMAN NEVILLE: And Gary would --
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MR. STEFFENS: We'll incorporate your clarified
2 language, Gary? I have to read it again.
3
MR. HELD: But the point I wanted to make is,
4 the only way to allow the association to go forward is to
5 acknowledge that there might be a zebra at some point in
6 the future, because otherwise
7 (Everyone talking at the same time.)
8
MR. HELD: Well, otherwise, any appeal by
9 Mr. Gibbs is going to tie up the entire project, so it
10 could be years before a court resolves it.
11
MR. ROSEN: We're going into court, too, because
12 we just can't let the health, welfare and safety of our
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13
residents and plus the people walking by be in jeopardy.
14
MR. STEFFENS: That's an internal issue. We've
15 gone through.
16
MR. ROSEN: Definitely.
17
MR. STEFFENS: And they need to go through it,
18 too.
19 MR. HELD: So there's two things that I
20 previously stated. One was that they -- whatever
21 somebody decides about grandfathering, they don't have to
22 come back to this Board and I don't know whether you
23 agree with that or not.
24 The second thing, which you may not agree with,
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was that the association can move forward as far as this
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Board is concerned and you'll deal with the
2 grandfathering issue later.
3
MR. STEFFENS: I think we made ourselves clear
4 in what we wanted to achieve. How they achieve it is up
5 to the association. All of that is internal. We said
6 achieve this appearance. We don't want a zebra. We
7 don't want two balconies that don't match or three or one
8 or seven. We want a building that is uniform.
9
CHAIRMAN NEVILLE: All right, let's make a
10 second.
11
UNIDENTIFIED SPEAKER: Second.
12
CHAIRMAN NEVILLE: All in favor, say aye. Any
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opposed? Four/zero.
14
MS. DE LA CAMARA: Thank you very much.
15
(Thereupon, the proceedings were concluded.)
16
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21
22
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CERTIFICATE OF REGISTERED PROFESSIONAL REPORTER
2
3
4
STATE OF FLORIDA:
5
SS:
6
COUNTY OF DADE:
7
8
9 I, LORENA RAMOS, do hereby certify that Item The
10 Marlborough House, DRB File No. 17373, was heard by the
11 Design Review Board on the 20th day of April 2004; and
12 that the foregoing pages, numbered from 1 to 31,
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inclusive, constitute a true and correct transcription of
14 my stenograph notes.
15 WITNESS my hand and official seal in the City of
16 Miami, County of Dade, State of Florida, this 27th day of
17 May 2004.
18
21
L
19
20
, COURT REPORTER
22
23
~ LORENA RAMOS
:~ MY COMMISSION # DO 114043
. EXPIRES: May 2, 2006
Bonded Thru NOlary Public Underwriters
24
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