2013-28160 Reso RESOLUTION NO. 2013-28160
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, GRANTING AN APPEAL REQUEST FILED
BY W. TUCKER GIBBS, P.A., ON BEHALF OF SUNSET ISLANDS 3 AND 4
PROPERTY OWNERS, INC. AND OLGA LENS, OF THE DESIGN REVIEW
BOARD'S ORDER RELATIVE TO DRB FILE NO. 22889 FOR 1201-1237
20TH STREET, PALAU AT SUNSET HARBOR
WHEREAS, a process for review by the Mayor and City Commission of decisions
rendered by the Design Review Board ("DRB") when requested by an applicant or any affected
person has been established under Section 118-262 of the Miami Beach City Code; and
WHEREAS, Palau Sunset Harbor, LLC was the applicant for a proposed 5-story, mixed-
use development project, which was approved by the Design Review Board on October 2, 2012
and the Order for such approval was rendered on October 8, 2012 (DRB File No. 22889, 1201-
1237 20th Street— Palau at Sunset Harbour); and
WHEREAS, a request for a re-hearing of the DRB decision pertaining to File No. 22889,
which was requested by MAC SH, LLC, and Sunset Islands 3 and 4 Property Owners, Inc, was
denied by the Design Review Board on December 4, 2012 and the Order for such denial was
rendered on December 10, 2012; and
WHEREAS, W. Tucker Gibbs, P.A., on behalf of Sunset Islands 3 and 4 Property
Owners, Inc. and Olga Lens, requested a review of the Design Review Board order rendered on
October 8, 2012, pertaining to the proposed 5-story, mixed-use development project, (DRB File
No. 22889, 1201-1237 20th Street— Palau at Sunset Harbour).
WHEREAS, pursuant to Section 118-262, the review by the City Commission is not a
"de novo" hearing; it must be based upon the record of the hearing before the Design Review
Board. Furthermore, Section 118-262 (b) provides: In order to reverse, or remand for
amendment, modification or rehearing any decision of the Design Review Board, the City
Commission shall find that the Design Review Board did not do one of the following: 1) provide
procedural due process; 2) observe essential requirements of law, or 3) base its decision upon
substantial, competent evidence; and
WHEREAS, Section 118-262(a) requires the appellants to file with the City Clerk a
written transcript of the hearing before the Design Review Board two weeks before the
scheduled public hearing on the appeal; the transcript and associated material were transmitted
to the Mayor and City Commission via LTC; and
WHEREAS, on January 16, 2013, the City Commission set the hearing for this appeal to
be held on March 13, 2013, and the City Clerk was directed and did notice such hearing; and
WHEREAS, on March 13, 2013 the City Commission heard the parties, and pursuant to
the argument given, the written materials submitted, and having been duly advised in the
premises determined that the October 2, 2012 decision of the Design Review Board did result
in, respectively, 1) a denial of due process and 2) a departure from the essential requirements
of law; and
WHEREAS, on March 13, 2013 a motion was made by the City Commission to grant the
appeal by W. Tucker Gibbs, P.A., on behalf of Sunset Islands 3 and 4 Property Owners, Inc.
and Olga Lens of the October 2, 2012 decision of the Design Review Board pertaining to DRB
File No. 22889; and
WHEREAS, the Commission finds that the record of the proceedings below does not
reflect whether proper disclosures of ex-parte contacts by DRB board members if any, were
made at the October 2, 2012 meeting, as required by City Code section 2-512, and the record
does not reflect that adequate discussion and review occurred of the important view corridors
associated with this project, as required by Design Review criterion 118-251(a) (12); and
WHEREAS, the motion to grant the appeal and remand for further proceedings before
the Design Review Board, to allow the Board members to make the appropriate disclosures of
ex-parte contacts, if any, as required by City Code section 2-512, and to further discuss and
review the important view corridors, as required by Design Review criterion 118-251(a) (12),
was made and seconded, and approved by a vote of 6-1.
NOW THEREFORE BE IT RESOLVED THAT the Mayor and City Commission hereby
grant the appeal filed by W. Tucker Gibbs, P.A., on behalf of Sunset Islands 3 and 4 Property
Owners, Inc. and Olga Lens and remand the October 2, 2012 decision of the Design Review
Board pertaining to DRB File No. 22889 back to the Board for further proceedings consistent
with this decision.
PASSED and ADOPTED this 13th day of March, 2013.
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F:\ATTO\HELG\LITIGATION\Palau\Palau Project DRB File No.22889 Appeal-RESO 3-13-2013 FINAL.docx
Page 2 of 2
COMMISSION ITEM SUMMARY
Condensed Title:
A resolution, pursuant to Section 118-262 of the City Code,to review the Design Review Board order relative
to DRB File No. 22889, rendered on October 8, 2012, as requested by W. Tucker Gibbs, PA on behalf of
Sunset Islands 3 and 4 Property Owners, Inc. and Olga Lens, as affected persons.
Key Intended Outcome Supported:
N/A
Item Summa /Recommendation:
Pursuant to City Code Section 118-262,W.Tucker Gibbs, PA on behalf of Sunset Islands 3 and 4 Property
Owners, Inc. and Olga Lens, as affected persons, is requesting that the City Commission review a Design
Review Board decision rendered on October 8,2012(DRB File No.22889)pertaining to the approval of a 5-
story, mixed-use development project located at 1201-1237 20th Street— Palau at Sunset Harbour.
On January 16, 2013, the City Commission set the public hearing for March 13, 2013 to review the order of
the Design Review Board pertaining to DRB File No. 22889 (1201-1237 20th Street — Palau at Sunset
Harbour).
Based upon the issues raised in the petition,the Administration recommends that the City Commission deny
the appeal.
Advisory Board Recommendation:
The Design Review Board approved the subject development project on October 2, 2012, subject to the
conditions of the Final Order.
Financial Information:
Source of Amount Account
Funds: 1
2
3
OBPI Total
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Richard Lorber or William Cary
Sign-Offs:
Department Director Assistant City Wriager Cit Manager
T:\AGENDA\2013\March 13\Palau Project DR F a No.22889 Appeal-SUM 13.docx
AGENDA ITEM �7
MIAMIBEACH DATE 3
® MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City C mission
FROM: Kathie G. Brooks, Interim City Manager/��
DATE: March 13, 2013
PUBLIC HEARING
SUBJECT: Palau Appeal
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, [GRANTING OR DENYING] AN
APPEAL REQUEST FILED BY W. TUCKER GIBBS, P.A., ON
BEHALF OF SUNSET ISLANDS 3 AND 4 PROPERTY OWNERS,
INC. AND OLGA LENS, OF THE DESIGN REVIEW BOARD'S
ORDER RELATIVE TO DRB FILE NO. 22889 FOR 1201-1237 20TH
STREET, PALAU AT SUNSET HARBOR.
ADMINISTRATION RECOMMENDATION
Based upon the issues raised in the petition, the Administration recommends that the
City Commission deny the appeal.
BACKGROUND
On October 2, 2012, the Design Review Board (DRB) approved DRB File No. 22889,
pertaining to a 5-story, mixed-use development project located at 1201-1237 20th Street
— Palau at Sunset Harbour.
On October 23, 2012 a "Petition for Rehearing" was filed by MAC SH, LLC, and Sunset
Islands 3 and 4 Property Owners, Inc. Such re-hearing request was considered by the
DRB on December 4, 2012. Following denial of a motion to continue the hearing (which
failed due to a tie vote), and denial of a motion to deny the Petition for Rehearing (which
failed due to a tie vote), there being no further motions, it was determined by the
attorney for the Board that the last decision of the Board stands as the decision of the
Board (which was for approval of the application).
Pursuant to City Code Section 118-262, W. Tucker Gibbs, P.A., on behalf of Sunset
Islands 3 and 4 Property owners, Inc. and Olga Lens, as affected persons, filed a
"Request For City Commission Review of the Design Review Board Decision"
("Request") rendered on October 8, 2012 (DRB File No. 22889) pertaining to the
approval of Palau project.
Section 118-262 of the Miami Beach City Code allows the applicant, the City Manager
on behalf of the City Administration, the Miami Design Preservation League, Dade
Heritage Trust or an 'Affected Person,' to seek review of any order of the Design Review
Board by the City Commission. For purposes of Section 118-262, an "affected person"
shall mean either:
(i) a person owning property within 375 feet of the applicant's project reviewed by
the board, or
Commission Memorandum
Palau Appeal—Public Hearing
March 13, 2013 Page 2 of 4
(ii) a person that appeared before the design review board (directly or
represented by counsel), and whose appearance is confirmed in the record of the
design review board's public hearing(s)for such project.
The Request alleges that the definition of 'affected person' has been satisfied because
the named appellants appeared at the hearing before the DRB. (Request para. 4).
Pursuant to Section 118-262 of the Miami Beach Code, the review by the City
Commission is not a "de novo" hearing, and it must be based upon the record of the
hearing before the DRB. Section 118-262(b) states the following:
In order to reverse, or remand for amendment, modification or rehearing any
decision of the Design Review Board, the City Commission shall find that the Design
Review Board did not do one of the following:
1) provide procedural due process,
2) observe essential requirements of law, or
3) base its decision upon substantial, competent evidence.
In order to reverse or remand a decision of the DRB, a 5/7th vote of the City Commission
is required.
ANALYSIS
The DRB's review of the subject project was based upon the information and exhibits
submitted by the applicant, and the Board had before it the recommendation for approval
with proposed conditions presented by its professional staff in the form of a
comprehensive staff report, all of which constitute competent, substantial evidence in
support of the decision. The Board agreed with the staff recommendation in the report.
The Request claims that several issues justify reversal or remand. This is not the case,
as all issues raised were discussed and considered by the DRB as outlined below.
The Petition raises the following arguments on appeal:
1. DRB members failed to disclose ex parte communications as required by
sections 2-511 through 2-513 of the City Code. (at Petition, page 14).
2. Palau failed to meet its initial burden to show that it met DRB review criteria
requiring that it created or maintains important view corridors. (at Petition,
page 18).
3. The DRB failed to evaluate the elimination and/or diminution of four view
corridors as required by section 118-251(a)(12). (at Petition, page 19).
4. The design review staff report fails to address specific criteria requiring a
building's massing to create or maintain important view corridors is not
competent and substantial evidence of compliance with that review criteria (at
Petition, page 21).
5. The DRB improperly delegated to design review staff its authority to evaluate
and approve plans pursuant to DRB review criteria (at Petition, page 23).
These issues are each discussed below.
1. FAILURE TO DISCLOSE EX-PARTE COMMUNICATIONS AS REQUIRED BY
SECTION 2-511 THROUGH 513 OF THE CITY CODE
Commission Memorandum
Palau Appeal—Public Hearing
March 13, 2013 Page 3 of 4
Ex-parte communications were discussed at the August 7, 2012 meeting. At the
beginning of the Board discussion, the Board Chairman indicated "We have met, most of
us have met with your team to go over the project," Transcript at p. 150, (referring to the
Palau development team), and another Board member individually indicated that she
had not met with the applicant (see Transcript at p. 170). These statements by Board
members satisfied the disclosure requirement in the City Code. If Appellants wanted the
"reasonable opportunity to refute or respond to the communication," as provided by
Section 2-512(a)(4), they should have taken this opportunity at the hearing. Further, if
they thought ex parte contacts had occurred but had not been disclosed, they should
have raised this possibility and objected at the hearing. Otherwise, this objection should
be considered waived.
2. FAILURE TO MEET ITS INITIAL BURDEN TO SHOW THAT IT MET DRB
REVIEW CRITERIA REQUIRING THAT IT CREATED OR MAINTAINS
IMPORTANT VIEW CORRIDORS.
Appellants assert that "the applicant has the initial burden to show that it has met the
DRB approval requirements," and "Palau failed to meet that burden by its failure to
address the DRB review criteria and how it met each of those standards." Petition at 18.
Palau, however, satisfied the requirement to meet its initial burden by providing the plans
that showed which view corridors were provided and to what extent. There is no
requirement that a separate document or explanation be provided showing how each
design review criteria is satisfied. With respect to view corridors, the plans themselves
are evidence of such proof.
3. THE DRB FAILED TO EVALUATE THE ELIMINATION AND/OR DIMUNITION
OF FOUR VIEW CORRIDORS PURSUANT TO SECTION 118-251(a)(12).
Section 118-251(a)(12) provides: "The proposed structure has an orientation and
massing which is sensitive to and compatible with the building site and surrounding area
and which creates or maintains important view corridor(s)."
First, it is important to understand that not all view corridors are protected. View
corridors across or over another person's or entity's property are not always protected.
View corridors in setback areas, or along sidewalks are likely protected. Each one is
evaluated on its own merits. Views to the water from the adjacent property across the
Palau property is not a protected view corridor, and a property owner does not have an
inherent right to water views through another owner's property.
All relevant view corridors referenced in the Petition were discussed and reviewed by the
DRB. The Board, at the August 7, 2012 meeting, did require that the northeast corner of
the building be further setback in order to lessen the impact on the historic Sunset Island
bridge, this change was made in the plans presented to the Board for the October 2,
2012 meeting, and the change fully satisfied the Board's request. The Board's review
and discussion of views in the plans satisfied the design review criterion on this point.
4. THE DESIGN REVIEW STAFF REPORT FAILS TO ADDRESS SPECIFIC
CRITERIA REQUIRING A BUILDING'S MASSING TO CREATE OR MAINTAIN
IMPORTANT VIEW CORRIDORS IS NOT COMPETENT AND SUBSTANTIAL
EVIDENCE OF COMPLIANCE WITH THAT REVIEW CRITERIA.
Commission Memorandum
Palau Appeal—Public Hearing
March 13, 2013 Page 4 of 4
The staff evaluation contained in the staff report is competent substantial evidence. It is
fact based, because it is based on a review of the application and its accompanying
plans and surveys and accompanying documents, and is based upon field inspections,
and thus is competent substantial evidence upon which the DRB can base its decision
under Florida law. City of Hialeah Gardens v. Miami-Dade Charter Foundation, Inc., 857
So.2d 202, 204-05 (Fla. 3d DCA 2003) ("the Chief of Police, the Director of Public
Works, and the Chief Zoning Official, gave specific fact-based reasons for their
recommendations that the application be rejected."); Metropolitan Dade County v.
Sportacres Development Group, 698 So.2d 281, 282 (Fla. 3d DCA 1997) ("maps,
reports and other information which, in conjunction with the testimony of the neighbors, if
believed by the Commission, constituted competent substantial evidence."); Dade
County v. United Resources, Inc., 374 So.2d 1046, 1050 (Fla. 3d DCA 1979)
("recommendations of professional staff'); Norwood-Nor/and Homeowner's Assn v.
Dade County, 511 So.2d 1009, 1013 (Fla. 3d DCA 1987) ("Dade County Development
Impact Committee report"); Metropolitan Dade County v. Fuller, 515 So.2d 1312, 1314
(Fla. 3d DCA 1987) ("staff recommendations").
5. THE DRB IMPROPERLY DELEGATED TO DESIGN REVIEW STAFF ITS
AUTHORITY TO EVALUATE AND APPROVE PLANS PURSUANT TO DRB
REVIEW CRITERIA.
The inclusion of conditions in the DRB Order that allows staff to make specific decisions
on plans to be submitted is not an unlawful delegation of authority. These are minor
matters within the scope of staff's authority, including materials, finishes, glazing
(windows), railings, architectural projections, landscaping, walkways, fences, facades
between buildings, and the compliance of the applicant with a condition imposed to
enlarge a plaza and connect to a walkway. The DRB need not involve itself in every
minor detail of the design of a proposed development. These matters are included in
board orders to emphasize staffs review of them when the project is submitted for
building permit. Unlawful delegations arise when insufficient standards are set out for
the implementation of delegation by the person to whom authority was delegated. The
design review criteria remain the standards against which either the Board at the time of
design review approval, or the design review staff at time of building permit, and are
sufficient to provide a lawful delegation of authority on these minor points.
A review of the transcripts for the DRB hearings indicates that the DRB observed the
essential requirements of law, made its determinations based on substantial, competent
evidence, and afforded all parties involved due process. Additionally, the Board held
public hearings during which members of the public were afforded the opportunity to
testify and present evidence. Based upon all of the competent, substantial evidence
submitted, the Board determined that the proposed project would meet the Criteria for
Design Review Approval in Section 118-252 of the Code, subject to the conditions in the
Final Order.
CONCLUSION
Based upon the issues raised in the petition, the Administration recommends that the
City Commission deny the appeal.
KGB/JGG/GMH/RGL/TRM
T:\AGENDA\2013\March 13\Palau Project DRB File No 22889 Appeal-MEMO 3-13-2013 rev2.docx
MIAMI BEACH
City Clerks Office MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Rafael E. Granado, City Clerk -
DATE: February 27, 2013
SUBJECT: Petition to Reverse Design Review Board (DRB) Decision Relative to File
22889, Palau Sunset Harbor.
Attached is the Petition to Reverse Design Review Board Decision regarding Palau Sunset
Harbor filed by W. Tucker Gibbs, Esq., attorney for The Sunset Islands 3 and 4 Property
Owners, Inc. and Olga Lens. In addition, Mr. Gibbs has filed a lengthy Appendix (Volumes I
& II), consisting of 352 pages, which has been be placed in your iPad Dropbox and linked to
the City's webpage. If you would like a printed copy of the Appendix, please call me at
305.673.7411 or email me at rafaelgranado(cD_miamibeachfl.gov.
If additional parties file pleadings on this matter, they will be forwarded to you as well.
This item is scheduled to be heard by the City Commission on March 13, 2013, at 5:01 p.m.
as item R7A - A Resolution [Granting Or Denying] An Appeal Request Filed By W. Tucker
Gibbs, P.A., On Behalf Of Sunset Islands 3 And 4 Property Owners, Inc. And Olga Lens, Of
The Design Review Board's Order Relative To DRB File No. 22889 For 1201-1237 20th
Street, Palau At Sunset Harbor.
REG/Ic
F:\CLER\$ALL\LILIA\DRB-Palau.docx
We ore cornmilled to providing oxcpUent public service and snfr�h,,to ail who live, work, and ploy in our vibrant, tropical, historic cornnnrnity,
BEFORE THE MIAMI BEACH CITY COMMISSION
DESIGN REVIEW BOARD FILE 22889
IN RE: PALAU SUNSET HARBOR
All of Lots 22, 23, and 24, and the north 70 feet of
Lots 25 and 26, Block 15A, Island View Addition
According to the Plat Thereof as Recorded in Plat
Book 9, Page 144 of the Public Records of Miami-
Dade County
1201-1237 20`h Street, Miami Beach, Florida
PETITION TO REVERSE DESIGN REVIEW BOARD DECISION
The Sunset Islands 3 and 4 Property Owners, Inc. ("Sunset") and Olga
Lens ("Lens") (collectively "neighbors"), pursuant to section 118-262, City of
Miami Beach Land Development Regulations, requests that the City of Miami
Beach City Commission ("commission") at its March 13, 2013 meeting
reverse the decision of the Miami Beach Design Review Board ("DRB") to
grant the application for design review approval for the Palau Sunset Harbor
development (DRB File No. 22889) ("Palau development"), or in the
alternative remand the matter back to the DRB with instructions for review
consistent with the requests herein.
1
INTRODUCTION
Palau Sunset Harbor, LLC, ("Palau" or "applicant") applied for DRB
approval for the Palau development, a large mixed use project proposed for
property it owns at 1201-1237 20`h Street, Miami Beach. The project would
abut a well-established single-family residential neighborhood. The Palau
development would not only destroy important view corridors to the water
and from 201h Street to the historic Sunset Islands bridge but also block
abutting neighbors' views even more than does the Sunset Harbor townhouses
immediately to its west. Given the virtually unanimous objection to the
project by its residential neighbors, no one was surprised that the Palau
application consumed hours of contentious public hearings before the DRB.
During the DRB review process not one neighbor spoke in favor of this
massive development. Furthermore, the DRB decision-making process
included: procedural error, a failure to correctly apply the law and on a key
issue a failure to base its decision on competent substantial evidence.
At the core of any quasi-judicial body's review of an application is the
basic guarantee that the process is fundamentally fair.' DRB members failed
' The city commission's review of this matter pursuant to section 118-262
also fails to provide a party seeking its review with the due process one would
expect in a quasi-judicial proceeding. In this process, the party initiates the
commission's review by filing the petition (if represented by counsel) and
must file "appropriate legal briefs" setting forth argument and facts in support
2
to make required disclosures of meetings with Palau representatives prior to
the meetings of August 7 and October 2, 2012. Such ex parte communication
is contrary to a fair and impartial quasi-judicial hearing process and a breach
of the city's obligation to provide basic procedural due process.
The failure of the applicant and design review staff to address
compliance with the specific DRB review criteria, and the failure of the order
to show compliance with those criteria shows that the DRB did not observe
the essential requirements of law when it approved the application. This
warrants reversal of the DRB decision.
of its case. The petitioner must show that the DRB failed to provide due
process, or did not observe the essential requirements of law, or failed to base
its decision on competent substantial evidence. This mirrors the process and
review standards of an appellate court. But that is where the similarities end.
In an appellate proceeding, the petition is followed by a response to the
arguments in the petition from the other side and that response brief is
followed in many cases by a reply to those arguments. This process insures
that all parties (and the court) know and understand all the arguments. This is
transparent and open process that is fair and provides all parties procedural
due process. Therefore, it leads to few if any surprises to either side. The
Miami Beach process guarantees a closed and opaque process and is designed
to keep information away from the petitioner. Here, the city and the applicant
have all the information regarding the petitioner's arguments. But because
there is no reciprocal obligation for the city or applicant to provide a response
to the petition, the petitioner has no information regarding the city or
applicant's arguments. The city commission is equally in the dark. All of this
makes for a process that is skewed toward one side. That is a process that fails
to meet the standards of basic fairness in order to afford all parties a fair, open
and impartial hearing. In that hearing the "...the opportunity to be heard must
be meaningful, full and fair, and not merely colorable or illusive." Rucker v
City of Ocala, 684 So. 2d 836, 841 (Fla. 1st DCA 1996).
3
Design review staff's conclusory statements on compliance with
required review standards without any stated factual basis are not competent
substantial evidence. Therefore, the DRB decision and order regarding the
project's compliance with all the review criteria is not based on competent
substantial evidence.
The DRB has no authority to delegate to city staff any of its duties to
evaluate and make final determinations about whether the application meets
DRB review criteria. This authority is vested only in the DRB, but that board
through its order incorrectly delegated that power to the city's design review
staff.
These fundamental failures on the part of the DRB warrant the reversal
of that board's approval of the Palau application.
PARTIES
Sunset represents its members who are property owners on both Sunset
Island 3 and Sunset Island 4 across the waterway from the proposed Palau
development site. Its members include property owners within 375-feet of the
site.
Lens owns the property at 2000 North Bay Road, across Sunset Drive
from and within 375-feet of the proposed Palau development site.
4
Palau owns the property located at 1201-1237 201h Street, Miami
Beach, Florida. It applied for and received DRB approval for the Palau
development on that site.
On August 7, and October 2, 2012, the DRB held a publicly-noticed,
quasi-judicial hearing and reviewed the application for design review
approval for the Palau development. At that hearing the neighbors
individually and through counsel appeared before the Design Review Board.
Exhibit N, 68:15-70:1, 93:5-94:5, 71:10-77:11, 182:9-184:11, August 7, 2012
Transcript. Exhibit O, 56:14-59:23, 60:10-70:10, 72:7-76:12, 103:17-104:19,
130:21-146:12, October 2, 2012 Transcript Volume 1.
FACTUAL BACKGROUND
In late 2011, Palau applied to develop the property abutting the Sunset
Islands and its historically-designated entrance. Exhibit A, Aerial map of area.
The applicant proposed a bulky, 5-story, 109,279 square-foot (including
approximately 13,056 square feet of commercial space) mixed-use
development on this CD-2 (Commercial Medium Intensity zoning district)-
zoned site. Exhibit B, Planning Board Staff Report, April 24, 2012.
The Palau site abuts RS-3 (property on N. Bay Road and Sunset Drive)
and RS-4 (Sunset Island 4) single family residential neighborhoods to the east
5
and north and RM-3 multi-family property (Sunset Harbour Townhomes) to
the west. Exhibit C, Zoning Map.
At the planning board the applicant sought a conditional use approval
to allow development exceeding 50,000 square-feet plus the use of
mechanical parking lifts, among other things. Exhibit D, Planning Board Staff
Report, April 24, 2012.
Faced with strong neighborhood opposition, the planning board
continued the matter several times. Neighbors sought a project that was less
bulky and more in scale with the abutting single-family residential
neighborhood. In particular, the neighbors cited the monolithic massing of the
building and requested that the board require increased setbacks and more
articulation to lessen the impact of the massive structure on its neighbors.
Ultimately on May 22, 2012, the planning board approved the conditional use
for a modified development with a specific condition relating to Design
Review Board approval:
"5. The applicant shall work with Design Review Staff to further
modify the proposal to address the following, subject to
review and approval of the Design Review Board:
(a) Pulling back the massing, east of the World Savings
Bank property, with emphasis on upper floor setback and
the northeast corner of the building and adding more
green space.
6
(b) Further modifying the ground floor area along the canal
(terraces) to minimize the hardscape and increase the
amount of open, landscaped area at grade level.
(c) Adding more canopy trees for increased shade to the
landscape plan particularly along Sunset Drive. Also
work with Sheryl Gold on this item.
(d) Removing parking on Sunset Drive.
(e) Reducing encroachment on the line of sight from Sunset
Island 4.
(f) Working with Public Works staff to limit u-turns at the
guardhouse."
Exhibit D, August 7; 2012 Design Review Board Staff Report.
With this directive from the planning board, the applicant made
revisions to its plan and submitted it to the Design Review Board. That board
held its initial hearing on the application on August 7, 2012.
At that hearing the neighbors focused on the zoning code charge to the
DRB to examine development plans for consistency with the criteria in
section 118-251 regarding aesthetics, safety and function of the structure and
the physical attributes of the project in relation to the site, adjacent structures
and the surrounding community. According the DRB review criteria, the
development must not have a negative impact on adjacent neighborhoods.
Under these standards, the developer must eliminate or mitigate aspects of the
proposed project that adversely affect the surrounding area.
7
Neighbors presented expert testimony addressing the impacts of the
project on the adjacent properties. Their expert and the city's design review
staff found that the project failed to meet eight of the fifteen applicable
standards. Exhibit E Alvarez Power Point Presentation, and Exhibit D, August
7, Design Review Board staff report). Neighbors also submitted a transcript of
the expert testimony of University of Miami Professor of Architecture
Francois Le Jeune at the May 22, 2012 Planning Board hearing on Palau's
conditional use application. Professor Le Jeune stated that the project should
be redesigned to reduce its mass and scale and maintain the view corridor
from West Avenue toward the water and Sunset Island 4. Exhibit F, Excerpt
of Francois Le Jeune Testimony, May 22, Planning Board hearing.
In their discussion of the DRB's neighborhood compatibility criteria
the neighbors addressed the Palau project's impacts on the historic Sunset
Islands neighborhood and the historic Sunset Island Bridge. In particular, the
neighbors cited the 1996 Historic Designation Report. The report discussed
the importance of"sensitive new construction" in the context of the
neighborhood's character, which is defined by the elements of scale,
proportion, massing, materials and details. Exhibit G Designation Report, 21.
The report also examined "compatibility with the character of the Historic
Sunset Islands Neighborhood," which positively influences proportion and
8
scale, massing and materials. Id., 22. In particular, the report noted: "When
there is a combination of structural building types surrounding a project site,
scale and proportion of the buildings closest to the proposed construction
should be observed." Id.
The DRB voted to continue the item to its October 2 meeting based on
the staff recommendation for a continuance so that the applicant could
address staff's concerns about the proposal.
Prior to the October 2, 2012, DRB hearing, planning department staff
had asked neighbor representatives to provide it with their concerns and how
those concerns could be resolved. The neighbors submitted a proposed
resolution approving the application with conditions. The proposed resolution
set forth specific findings and the following conditions for approval:
a. The entire length of the building abutting and east of the
World Savings Bank property shall be set back an additional
15 feet.
b. The entire length of the fifth floor of the northern side of the
building facing Sunset Island No. 4 shall be set back an
additional ten feet.
c. The entire length of the eastern portion of the building along
Sunset Drive shall be stepped back as follows:
i. First floor an additional ten feet (current proposed
setback plus ten feet);
9
ii. Second and third floors an additional five feet (current
proposed setback plus 15 feet);
iii. Fourth and fifth floors an additional five feet (current
proposed setback plus 20 feet).
Exhibit H, Sunset Islands 3 &4 Proposed Resolution, October 2012.
Design review staff included the proposed resolution as an attachment
to the October 2, 2012 staff report, noting that the neighboring residents
continue to have serious concerns with the application. Exhibit I, 7, Staff
Report, Design Review Board, October 2, 2012. In its analysis staff
discussed one proposed finding regarding the comparison of the Palau project
with the Sunset Harbor Townhomes development to its west but failed to
address the other findings and conditions, including those relating to the
Sunset Drive view corridor and the proposed setbacks. Id.
The applicant presented its revised plans to the DRB at the October 2,
2012 hearing. Design review staff determined that these plans adequately
responded to their concerns and recommended approval of the application.
Notwithstanding the staff's position, the neighbors addressed the failure
of the application to adequately address three of the DRB review criteria that
focus on neighborhood compatibility:
a. Criteria 6 requires that the proposed structures must be
compatible with adjacent structures and enhance the appearance
10
of surrounding properties. Yet neither the applicant nor the
design review staff explained how this massive project is
compatible with the abutting single-family properties and in what
way it "enhanced" the appearance of these properties.
b. Criteria 7 states that the site plan layout must show efficient
arrangement of land uses, especially the relationship with the
surrounding neighborhood, impacts on adjacent buildings and
lands, pedestrian sight lines and view corridors. But the plan for
the project shows that existing site lines and view corridors are
degraded or eliminated. The applicant did not address how it met
this criterion. Design review staff also did not discuss or address
and how the revised plans met this criterion in their written
report2 or in their presentation.
c. Criteria 12 says that the massing and orientation of structures
must be sensitive to and compatible with the surrounding area
and also create or maintain important view corridors. However,
the massing and placement of the building fails to "create or
maintain" important view corridors as it degrades the view
corridor along Sunset Drive from 20`h Street to the historic
entrance to Sunset Islands 3 and 4.
Neighbors proposed a simple solution that would meet the three criteria
at issue: Step back the proposed building along Sunset Drive an additional ten
feet at the ground floor, an additional five feet on the second and third floors
2 The staff report merely stated that the criterion is "satisfied". Exhibit I, 3.
11
i
and an additional five feet on the fourth and fifth floors. Exhibit H, 2,
Proposed Resolution.
On October 8, 2012, the board rendered its order granting design
review approval to the Palau pursuant to design review criteria set forth in
section 118-251 of the Miami Beach Land Development Regulations and
subject to conditions set forth therein.
On October 23, 2012, Sunset and another entity petitioned the DRB to
rehear the matter pursuant to section 118-261.
On December 4, 2012, with only four of the seven members present,
the DRB considered the petition for rehearing:
a. The DRB considered and denied a motion to continue the
hearing by a 2-2 tie vote.
b. Without hearing argument or testimony and without any
presentation of evidence the DRB considered and denied a
motion to deny the petition for rehearing by a 2-2 tie vote.
c. There were no further motions. Therefore, the DRB counsel
interpreted the DRB rules to determine that the last decision of
the DRB shall stand and the request for rehearing be denied even
though there was not a majority vote for such denial of the
rehearing.
The DRB Order denying the rehearing was rendered on December 10,
2012, and Neighbors filed their request for city commission review of the
12
DRB decision pursuant to section 118-262. The city commission
subsequently set the request for hearing on its March 13, 2013 agenda.
STANDARD OF REVIEW
This city commission's standard of review requires a determination of
whether (1) the proceedings before the DRB afforded procedural due process;
(2) the DRB observed the essential requirements of the law; and (3) the
DRB's decision was supported by competent substantial evidence. Sec. 118-
262(b), Miami Beach Land Development Regulations.
ARGUMENT
The DRB consideration of this matter was characterized by procedural
errors. Its order fails to show that it correctly applied the DRB criteria and
that its decision was supported by competent substantial evidence:
a. The failure to disclose ex parte communications pursuant to
sections 2-511 through 513 of the Miami Beach Code of
Ordinances is a failure to provide procedural due process and a
failure of the DRB to observe the essential requirements of law
in its evaluation of the Palau development application.
13
b. The applicant failed to meet its initial burden.to show that it met
the DRB review standards, warranting reversal of the DRB
approval.
c. The failure of the DRB to evaluate the elimination and/or
diminution of four view corridors pursuant to section 118-251(a)
(12), is a failure to observe the essential requirements of law.
d. A staff report and presentation, which failed to examine or
address the specific requirement for "the proposed structure" to
have "an orientation and massing... which creates or maintains
important view corridors" is not competent substantial evidence
of compliance with that review criteria.
e. The DRB improperly delegated to design review staff its
authority to evaluate and approve plans as meeting DRB review
criteria.
DRB Members Failed to Disclose Ex Parte Communications as Required
by Sections 2-511 through 2-513 of the City Code
Section 2-511 defines a prohibited ex parte communication as any
written or oral communication with any member [of a city quasi-judicial
board], which may directly or indirectly influence the disposition of an
application, other than those made on the record during a public hearing.
Section 2-512(a) establishes a procedure "for all ex parte
communication" with a board member of a quasi-judicial board, such as the
Design Review Board. Section 2-512(a)(1) requires that "[t]he subject matter
14
of any ex parte communication, together with the identity of the person,
group or entity with whom the communication took place, shall be disclosed
and made a part of the record on file with the city prior to final action on the
matter."
Section 2-512(a)(4) requires that "[a]ny ex parte communication or
activity regarding a pending quasi-judicial matter and not physically made a
part of the record on file with the city and available for public inspection prior
to the public meeting on the matter shall be orally stated and disclosed on the
record at the public meeting prior to the vote on the matter ..."
Based on information and belief, prior to the Design Review Board's
hearings on the Palau matter (August 7, and October 2, 2012) representatives
of the applicant Palau Sunset Harbor, LLC, met with and communicated with
a member or members of the Design Review Board regarding the disposition
of the Palau application. Design review staff acknowledges that such
communication did indeed take place. And staff states that such meetings
were disclosed by the chairman who stated at the August 7, 2012 meeting:
"We have met -- most of us have met with your team to go over the project.
We have heard everything everybody has to say here." Exhibit N, Transcript
150:14-19.
15
According to design review staff this general statement by the chair is a
disclosure for all DRB members (despite lack of any legal authority for the
chairman to speak for DRB members on their ex parte communications) and
meets the code's requirement for "[t]he subject matter of any ex parte
communication, together with the identity of the person, group or entity with
whom the communication took place, shall be disclosed and made a part of
the record." Exhibit L, 3, Staff Report, Design Review Board, December 4,
2012. This is a fundamental misreading of the code and law in that it assumes
that the chairman has knowledge of each DRB member' ex parte
communications. The chairman as a matter of law cannot speak for the
members of the DRB regarding their ex parte communications. Such
knowledge only can be gained either through ex parte discussions,
discussions with staff, or discussions with fellow DRB members. Therefore,
this staff interpretation itself is an admission by the chair of a violation of the
"Sunshine Law," which prohibits communication between two or more DRB
members (including through third parties) on issues related to official DRB
business. Section 286.011, Fla. Stats.
3 Palau accepts staff's interpretation that the chairman's statement is an
accurate disclosure of the board members' ex parte communications. Exhibit
M, 5, Palau Response to Petition for Rehearing.
16
Astoundingly, Palau erroneously claims that the incorporation of the
August 7, hearing record at the October 2, 2012 DRB hearing applies to the
disclosure of ex parte communications made after that August 7 meeting.
This mocks any idea that this quasi-judicial process was fundamentally fair
and that neighbors and other participants in this process had adequate notice
of these post August 7 communications.
At best, the chairman's "disclosure" is limited to himself. At worst it is
a violation of the Sunshine Law. In either event the chairman failed to
disclose the subject matter of this communication, or the identity of the
person, group or entity with which the communication took place. And no
other board member made these required disclosures.
According to section 2-512(b) without such disclosure a presumption of
prejudice arising from that/those ex parte communication(s) remains attached
to that communication. These non-disclosed ex parte communications and the
attached presumption of prejudice effectively impacted the neighbors' ability
to obtain a fair hearing and denied them procedural due process. Furthermore,
this direct violation of the city code and state law (if you accept staff's and
Palau's position that the chairman spoke for the entire board when he made
his "disclosure" statement) is a failure of the DRB to observe the essential
requirements of law. (See also: Jennings v. Dade Cotcnty, 589 So.2d 1337,
17
1339 (Fla. 3d DCA 1991). "Upon proof that a quasi-judicial officer received
an ex parte contact, a presumption arises... that the contact was prejudicial.
The aggrieved party will be entitled to a new and complete hearing before the
commission [here, the DRB] unless the defendant proves that the
communication was not prejudicial.").
Palau Failed to Meet Its Initial Burden to Show That It Met DRB Review
Criteria Requiring That it Created or Maintains Important View
Corridors
In the DRB review of the development proposal, the applicant has the
initial burden to show that it has met the DRB approval requirements. Irvine
v. DLCval Cozcnty Planning Commission, 495 So.2d 167 (Fla.1986). These
requirements are set out in sections 118-251 through 264 of the Miami Beach
Land Development Regulations. However, Palau failed to meet that burden
by its failure to address the DRB review criteria and how it met each of those
standards.
In particular, the applicant did not present any evidence that it complied
with Section 118-251(a) (12). That criteria requires a showing that the
orientation and massing of the proposed structure is (among other things)
compatible with the surrounding area and that it "creates or maintains
important view corridors." In its presentation the applicant failed to show that
it complied with this requirement.
18
That failure warrants reversal of the DRB's approval of the application.
The DRB Failed to Evaluate the Elimination and/or Diminution of Four
View Corridors as Required by Section 118-251(A) (12)
Section 118-251(a) requires the DRB to include the examination of
architectural drawings for consistency with specific criteria with regard to the
aesthetics, appearances, safety, and function of the proposed structure "and
physical attributes of the project in relation to the site, adjacent structures and
surrounding community."
Section 118-251(a) (12) states: "The proposed structure has an
orientation and massing which is sensitive to and compatible with the
building site and surrounding area and which creates or maintains
important view corridor(s)." Emphasis added.
There is no indication in the record (including the transcripts or staff
recommendations) or the final order of the Design Review Board to show that
the proposed Palau development has an orientation and massing that "creates
or maintains" important view corridors.
The orientation and massing of the Palau building eliminates four
existing view corridors: (1) the West Avenue view corridor to the waterway
that extends between the World Bank property and the Sunset Harbor
Townhomes; (2) the view corridor to the waterway that extends between the
19
World Savings building and the existing incomplete structure to its east; (3)
the view corridor to the waterway that extends between the existing
incomplete structure and the Mark's Cleaners building to the east; and (4) the
view corridor along Sunset Drive, from 20`h Street to the historic Sunset
Islands Bridge.
Furthermore, the orientation and massing of the proposed Palau
building diminishes the existing view corridor along Sunset Drive, from 20`h
Street to the historic Sunset Islands Bridge.
The failure of the board to apply correctly section 118-251(a) (12),
which requires the orientation and massing of the structures to "create or
maintain important view corridors," is a failure to observe the essential
requirements of law.
Both design review staff and Palau state that the DRB considered "view
corridors" and required "that the northeast corner of the building be further
setback in order to lessen the impact on the historic Sunset Island bridge."
According to staff and Palau this change "fully satisfied the Board's request."
Exhibit L, 2 December 4, 2012 Design Review Board Staff Report. But this
DRB request was never characterized as preserving an important view
corridor. It was a response to the building's impact on the historic bridge
20
itself, not the view corridor along Sunset Drive from 201h Street to the historic
bridge.
In fact, there is no reference in the testimony presented by the staff or
the developer at the October 2, 2012 hearing connecting this chan ge in the
plans to the creation or maintaining of important view corridors. There is no
mention of the Sunset Drive view corridor by the staff or Palau
representatives at either the August 7, or October 2, 2012 DRB hearings.
The Design Review Staff Report Fails to Address Specific Criteria
Requiring a Building's Massing to "Create or Maintain Important View
Corridors" and is Not Competent and Substantial Evidence of
Compliance With That Review Criteria.
Competent substantial evidence is defined as that evidence relied upon
to sustain the ultimate finding that is "sufficiently relevant and material that a
reasonable mind would accept it as adequate to support the conclusion
reached." De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). Competent
substantial evidence is not opinion unsubstantiated by facts. City of Apopka v.
Orange County, 299 So.2d 657, 660 (Fla. 4th DCA 1974).
The failure of the applicant and city staff to present evidence to the
board that the Palau development meets the specific requirements of section
118-251(a) (12) -- that the orientation and massing of the structures creates or
maintains important view corridors -- is a failure to present competent
21
substantial evidence to the DRB to support its decision that the Palau
development is consistent with that standard.
The October 2, 2012 staff report's statement that criteria 12 was
"satisfied" is not competent substantial evidence of that assertion because it is
opinion with no stated factual basis.
Any claim of deference to design review staff's interpretation of the
design review criteria fails where the staff has not even addressed a key
component of the criteria at issue. Note that the staff report of October 2 only
states that the criteria is "satisfied." There is no reference or mention of"view
corridor" in the staff report despite the clear language of the provision
requiring that the building create or maintain important view corridors.
Deference to the staff's interpretation is not unlimited, and the city
commission's role is not unquestioning. This is especially true where there is
no mention of"view corridor" in the context of this criterion in the staff
report or in the transcripts of the DRB hearings.
Furthermore, any deference claimed by staff or Palau is overcome by a
showing that there has been a departure from the essential requirements of
law. Bell South Telecommunications v. Johnson, 708 So.2d 594, 597 (Fla.
1998). Here the DRB failed to apply the correct law by failing to apply each
of the elements of criteria 12 -- in particular the requirement to create or
22
maintain important view corridors. When the agency's construction clearly
contradicts the unambiguous language of a rule, the construction is clearly
erroneous and cannot stand. Woodley v. Department of Health and
Rehabilitative Services, 505 So.2d 676,678 (Fla. ls` DCA 1987). See also,
Legal Environmental Assistance Foundation, Inc. v. Board of County
Commissioners of Brevard County, 642 So.2d 1081, 1083-1084 (Fla. 1994).
The DRB Improperly Delegated to Design Review Staff Its Authority to
Evaluate and Approve Plans Pursuant to DRB Review Criteria.
The city commission has delegated certain authority to the DRB to
approve design review applications subject to specific criteria set forth in
section 118-251. This authority, spelled out in sections 118-251 through 265,
does not allow the DRB to delegate to design review staff its responsibility
and duty to make decisions based on those criteria. 4
Yet that is what the DRB did when it approved the Palau development.
According to the final order of the DRB, it approved the project subject to
conditions, including:
4 While section 118-260 authorizes the planning director to approve, approve
with conditions or deny an application for eight specific issues all associated
with minor public improvements, and rehabilitation, alterations and
demolition of structures or portions of structures, it does not authorize the
DRB to delegate its authority to approve an application (or any portion of an
application) for new development such as the Palau project.
23
a. The final design and details, including materials, finishes,
glazing, railings, and any architectural projections and
features, shall be provided in a manner to be reviewed and
approved by staff. Emphasis added. Exhibit I, 2, October 2,
2012 Design Review Board Staff Report.
b. The final design and details, including landscaping, walkways,
fences, and architectural treatment of west elevation facing the
former bank building shall be provided, in a manner to be
reviewed and approved by staff. Emphasis added. Exhibit I, 2,
October 2, 2012 Design Review Board Staff Report.
c. The plaza at the northeast corner of the site shall be further
studied and enlarged to improve its visibility and
functionality, and shall be added to the waterfront walkway
easement for public access, subject to the review and approval
of staff. Emphasis added. Exhibit I, 3, October 2, 2012 Design
Review Board Staff Report..
While there is authority for the DRB to prescribe conditions of
approval, there is no authority for the DRB to delegate its review and
approval authority for new development to staff. Section 118-264, Land
Development Regulations. Each of these conditions transforms design review
decisions into staff-level determinations, without any authority in the land
development regulations.
Florida law provides that a legislature may not delegate the power to
24
i
make law or the right to "exercise unrestricted discretion in applying the
law." Sims v. State, 754 So.2d 657, 668 (2000). The DRB, without any
legislative authority, gave staff the power to approve plans as a condition of
DRB approval. That power is reserved to the DRB and cannot be delegated
absent specific legislative authority. There is no such authority in the city
code.
Therefore, the DRB order is invalid because the DRB review is
incomplete. Any changes to the plans must be approved by the DRB and not
staff. While staff may review these plans and make recommendations, it is
the DRB that has the sole authority to approve new development for
compliance with the design criteria. This final DRB review has not occurred.
For this reason, this order must be quashed.
CONCLUSION
The neighbors request the city commission to (a) review the decision of
the DRB and (b) reverse or in the alternative, remand this matter to the DRB
with instructions that the DRB require additional setbacks along Sunset Drive
as set forth herein .
25
Furthermore, neighbors seek a waiver and refund of the filing fees for
the rehearing and appeal, both of which would not have been necessary, had
the DRB process been proper to afford them a full and fair hearing.
Respectfully Submitted,
W. TUCKER GIBBS, ESQ.
Attorney for Neighbors
P.O. Box 1050
Coconut Grove, Florida 33133
Tel (305) 448-8486
Fax (305) 448-0773
Email: tucker @wtgibbs.com
W. TUCKER WBBS
26
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, [GRANTING OR DENYING] AN APPEAL
REQUEST FILED BY W. TUCKER GIBBS, P.A., ON BEHALF OF SUNSET
ISLANDS 3 AND 4 PROPERTY OWNERS, INC. AND OLGA LENS, OF THE
DESIGN REVIEW BOARD'S ORDER RELATIVE TO DRB FILE NO. 22889
FOR 1201-1237 20TH STREET, PALAU AT SUNSET HARBOR
WHEREAS, a process for review by the Mayor and City Commission of decisions
rendered by the Design Review Board when requested by an applicant or any affected person
has been established under Section 118-262 of the Miami Beach City Code; and
WHEREAS, Palau Sunset Harbor, LLC was the applicant for a proposed 5-story, mixed-
use development project, which was approved by the Design Review Board on October 2, 2012
and the Order for such approval was rendered on October 8, 2012 (DRB File No. 22889, 1201-
1237 201h Street— Palau at Sunset Harbour); and
WHEREAS, a request for a re-hearing of the DRB decision pertaining to File No. 22889,
which was requested by MAC SH, LLC, and Sunset Islands 3 and 4 Property Owners, Inc, was
denied by the Design Review Board on December 4, 2012 and the Order for such denial was
rendered on December 10, 2012; and
WHEREAS, W. Tucker Gibbs, P.A., on behalf of Sunset Islands 3 and 4 Property
Owners, Inc. and Olga Lens, has requested a review of the Design Review Board order
rendered on October 8, 2012, pertaining to the proposed 5-story, mixed-use development
project, (DRB File No. 22889, 1201-1237 20th Street— Palau at Sunset Harbour).
WHEREAS, pursuant to Section 118-262, the review by the City Commission is not a
"de novo" hearing; it must be based upon the record of the hearing before the Design Review
Board. Furthermore, Section 118-262 (b) provides: In order to reverse, or remand for
amendment, modification or rehearing any decision of the Design Review Board, the City
Commission shall find that the Design Review Board did not do one of the following: 1)provide
procedural due process; 2)observe essential requirements of law, or 3)base its decision upon
substantial, competent evidence; and
WHEREAS, Section 118-262(a) requires the appellants to file with the City Clerk a
written transcript of the hearing before the Design Review Board two weeks before the
scheduled public hearing on the appeal; the transcript and associated material were transmitted
to the Mayor and City Commission via LTC; and
WHEREAS, on January 16, 2013, the City Commission set the hearing for this appeal to
be held on March 13, 2013, and the City Clerk was directed and did notice such hearing; and
WHEREAS, on March 13, 2013 the City Commission heard the parties, and pursuant to
the argument given, the written materials submitted, and having been duly advised in the
premises determined that the October 2, 2012 decision of the Design Review Board [did or did
not] result in, respectively, 1) a denial of due process, 2) a departure from the essential
requirements of law, nor 3) a decision that was not based upon substantial, competent
evidence; and
WHEREAS, on March 13, 2013 a motion was made by the City Commission to [grant or
deny] the appeal by W. Tucker Gibbs, P.A., on behalf of Sunset Islands 3 and 4 Property
Owners, Inc. and Olga Lens of the October 2, 2012 decision of the Design Review Board
pertaining to DRB File No. 22889; and
WHEREAS, the motion to [affirm or reverse] the decision of the Design Review Board
was made and seconded, and approved by a vote of
NOW THEREFORE BE IT RESOLVED THAT the Mayor and City Commission hereby
[grant or deny] the appeal filed by W. Tucker Gibbs, P.A., on behalf of Sunset Islands 3 and 4
Property Owners, Inc. and Olga Lens and [reverse or affirm] the October 2, 2012 decision of the
Design Review Board pertaining to DRB File No. 22889.
PASSED and ADOPTED this day of March, 2013.
ATTEST:
MATTI HERRERA BOWER
MAYOR
RAFAEL GRANADO, CITY CLERK
APPROVED AS TO
& LA AGE
& FO EX CUT ON
2 25;113
rney to
T:\AGENDA\2013WIarch 13\Palau Project DRB File No.22889 Appeal-RESO 3-13-2013.docx
THE MIAMI HERALD I MiamiHeraldtom NE THURSDAY,FEBRUARY 7,2013 1 5ME
MIAMI BEACH
CITY OF MIAMI-BEACH
NOTICE OF PUBLIC HEARING.
NOTICE IS HEREBY given that a public hearing will be held by the Mayor and City Commission of the- City of
Miami Beach, Florida, in the-Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach,
Florida,-.on Wednesday, March-13, 2013, at 5:01 p^ Pursuant To Section 118-262 Of The City Code, For An Appeal
Filed By W.Tucker Gibbs, P.A., On Behalf Of Sunset Islands 3 And 4 Property Owners, Inc. And.Olga Lens, Of The
Design Review Board's Order Relative To DRB File'No.22889 For 1201-1237 20th Street,Palau At Sunset Harbor
Inquiries may be directed to the Planning Department at(305)673-7550.
Parties to the appeal.are invited to appear at this hearing, or be represented by an agent, or to express their views
in writing addressed.to the City Commission,c/o the City Clerk, 1700 Convention Center Drive, 1 st Floor,City Hall,
Miami Beach,Florida 33139.The review shall be based on the record of the hearing before the Design Review Board,
shall not be a de novo hearing, and no new, additional testimony shall be taken.This hearing may be opened and
continued and under such circumstances-additional legal notice would not be provided.
Rafael E.Granado,City Clerk .
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public t6ai:'if a person decides to appeal any
decision made by the City Commission with respect to any.matter considered at its meeting or its hearing,such.person
must ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence
upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or
admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise
allowed by law.
To request this material in accessible format, sign language interpreters, information on access for persons
with disabilities, and/or any accommodation to review any document or-participate in any City-sponsored
proceeding, please contact us five days in advance at (305) 673-7411(voice) or TTY users may-also call the
Florida Relay Service'at 711.
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