Request for City Commission Review. Crown Castle NG East, 1604 Alton Rd. DRB File 23062 &0/Yc237C7f
W. TUCKER GiBBS, P.A.
ATTORNEY AT LAW
P.O.BOX 1050
COCONUT GROVE FL 33133
TELEPHONE(305) 448-8486
FACSIMILE(305)448-0773
tucker@wtgibbs.com
September 10, 2014 VIA HAND DELIVERY
Rafael E. Granado, City Clerk . I.
City of Miami Beach
1700 Convention Center Drive cn
Miami Beach, Florida 33139 n,
Re: Request for City Commission Review.
Crown Castle NG East, 1604 Alton Road.
DRB File 23062. ••
ry
Dear Mr. Granado:
On behalf of my client ARRP Miami, LLC, and pursuant to
section 118-262 of the city's land development regulations,
enclosed for filing is the attached request for city
commission review of the Design Review Board Decision
regarding the application of Crown Castle NG East, regarding
the placement of a cellular transmission pole at 1604 Alton
Road (DRB File 23062 ) . Also enclosed is a check for the
applicable filing fee ($430 . 00) .
Also, please confirm that pursuant to section 118-264
that the issuance of any full building permit is stayed for
the project being appealed until its final resolution.
I am available to answer any questions you may have
regarding this filing.
Sincerely,
k RECEIVED
W. Tucker ibbs SEP le 2014
cc: Planning Director Thomas R. Mooney CLERK OF
City Attorney Raul Aguila THE SPECIAL MASTER
First Assistant City Attorney Gary Held
TARP Miami, LLC
BEFORE THE MIAMI BEACH CITY COMMISSION
DESIGN REVIEW BOARD FILE 23062
IN RE: CROWN CASTLE NG EAST, INC.
That portion of the north side of the right-of-way known
as Alton Road located at Latitude: North 25 degrees,
47'20.649", LONGITUDE West 80 degrees, 08'28.655". -�
CY)
Florida State Coordinates: X=938717.491,
Y=529948.984. A/K/A: 1604 Alton Road, Miami Beach,
Florida 33139
REQUEST FOR CITY COMMISSION REVIEW OF
DESIGN REVIEW BOARD DECISION
ARRP Miami, LLC ("ARRP"), pursuant to section 118-262, City of Miami
Beach Land Development Regulations, requests that the City of Miami Beach City
Commission ("commission") review the decision of the Miami Beach Design
Review Board ("DRB") to grant the application for design review approval for the
placement of a 25-foot tall cellular receiving and transmission device ("cell pole")
at the referenced location. (DRB File No. 23062). ARRP requests that the
commission reverse that DRB decision, or in the alternative, remand the matter to
the DRB with instructions to reconsider the application after a properly noticing
the hearing pursuant to the requirements set out in the City of Miami Beach Land
Development Regulations ("LDRs") and the City Charter of the City of Miami
Beach.
1
f I
1. ARRP owns the property at 1614 Alton Road, Miami Beach, Florida,
within 375-feet of the applicant's project (at 1604 Alton Road) reviewed by the
DRB.
2. ARRP is an affected person under the definition in LDR section 118-
262 because it owns property within 375 feet of the applicant's project reviewed by
the DRB. Therefore ARRP may seek city commission review of the DRB Order on
File No. 23062.
3. The DRB on August 5, 2014, held a quasi-judicial hearing and
reviewed the application for design review approval for the installation of the cell
pole at 1604 Alton Road ("Alton Road pole").
4. At that hearing Rafael E. Andrade, Esq., appeared before the DRB and
objected to its consideration of the application for the Alton Road pole because the
DRB hearing on this matter was not properly noticed to the public as required by
section 118-76 of the LDRs and section 8 of the By-Laws and Rules of Order of
the Design Review Board.
5. The DRB rejected the argument, considered the application and voted
to approve the 25-foot high telecommunications device.
6. On August 21, 2014, the board rendered its order granting design
review approval to permit the Alton Road pole pursuant to the design review
criteria set forth in section 118 of the LDRs and subject to conditions set forth
therein.
2
7. The DRB consideration of this matter was characterized by procedural
errors, in particular its unabashed failure to follow the LDRs as well as its own by-
laws and rules of order regarding public notice of the hearing at issue.
8. ARRP requests that the city commission either reverse the decision of
the DRB to approve the installation of the Alton Road pole or to remand the matter
to the DRB for it to evaluate application to approve the installation of the Alton
Road pole consistent with the proper procedure as set forth in the land
development regulations and the DRB bylaws and rules of order.
9. Aside from the failure of the DRB to follow the city requirements for
public notice of the hearing at issue in this request for review, ARRP also asserts
the following:
a. The failure to disclose ex-parte communications pursuant to
sections 2-511 through 513 of the city code 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 Alton Road
pole application.
b. The decision of the DRB to approve this application subject to
subsequent staff approval "consistent with the Design Review
Criteria and/or the directions from the Board," is a failure to
observe the essential requirements of law.
3
•
FAILURE TO PROVIDE PUBLIC NOTICE AS REQUIRED
BY THE SECTION 2-118 OF THE LAND DEVELOPMENT
REGULATIONS AND SECTION 8 THE DESIGN REVIEW BOARD BY-
LAWS AND RULES OF ORDER
8. Section 118-254(b) states:
"At least 30 days prior to the [DRB] public hearing date,
a description of the request, and the date, time and place
of such hearing shall (i) be posted on the property, (ii)
advertised in a paper of general paid circulation in the
community, and (iii) given by mail to the owners of
record of land lying within 375 feet of property..."
(emphasis added)
9. The city failed to provide the LDR-required notice for its August 5,
2014 meeting because it held its meeting at 1:30 pm instead of the properly noticed
time of 8:30am contrary to the explicit requirements of section 118-254(b) of the
LDRs.
10. This direct violation of the LDRs is a failure of the DRB to observe the
essential requirements of law.
11. Section 118-76 of the LDRs requires that "[a]ll meetings [of the DRB]
shall be open to the public and shall be conducted in accordance with the rules and
regulations adopted by the board." (emphasis added)
12. The DRB By-Laws and Rules of Order state: "Regular meetings of the
Board are open to the public and shall be held from time to time in City Hall.
Change of meeting date/time may be at the call of the Chairperson and as the
Board may determine with a minimum fifteen (15) days notice." (emphasis
added).
4
13. The board changed its meeting time less than 15 days prior to its
scheduled meeting contrary to the minimum 15-day notice required in its By-Laws
and Rules of Order and therefore is contrary to the LDR requirement that DRB
meetings shall be conducted in accordance with the DRB's rules and regulations.
14. This direct violation of the LDRs is a failure of the DRB to observe the
essential requirements of law.
FAILURE TO DISCLOSE EX-PARTE COMMUNICATIONS AS
REQUIRED BY SECTIONS 2-511 THROUGH 2-513
OF THE LAND DEVELOPMENT REGULATIONS
15. 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.
16. 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 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."
17. 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
5
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 ..."
18. Based on information and belief, prior to the Design Review Board's
hearings on the Alton Road pole application (August 5, 2014) representatives of
the applicant Crown Castle NG East, Inc, met with and communicated with a
member or members of the Design Review Board regarding the disposition of the
Alton Road pole application.
19. No disclosure has been made of the subject matter of this
communication, or the identity of the person, group or entity with which the
communication took place.
20. 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 ARRP' ability to obtain a
fair hearing and denied them procedural due process. Furthermore this direct
violation of the LDRs in the city code is a failure of the DRB to observe the
essential requirements of law.
6
IMPROPER DELEGATION TO DESIGN REVIEW STAFF
OF DRB AUTHORITY TO EVALUATE AND APPROVE PLANS
PURSUANT TO DRB REVIEW CRITERIA.
21. 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. 1
22. Yet that is what the DRB did when it approved the Alton Road pole
application. According to the final order of the DRB, it approved the project
subject to conditions, including:
"Revised elevation, site plan and floor plan drawings shall be
submitted to and approved by staff; at a minimum, such drawings
shall incorporate the following:
a. The exterior of the steel pole shall be powder coated finished
and the final exterior color selection shall be reviewed and
approved by staff consistent with the Design Review Criteria
and/or the directions from the Board.
1 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 Alton Road pole application.
7
23. 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 to staff.
24. This condition transforms a design review decision into a staff-level
determination, without any authority in the LDRs and is therefore a failure of the
DRB to observe the essential requirements of law.
WHEREFORE, ARRP requests: that the Miami Beach City Commission
review the decision of the DRB and reverse it, or alternatively, remand this matter
to the DRB with instructions to the DRB to reconsider the approved application
after a properly noticing the hearing pursuant to the requirements set out in the
LDRs and City Charter of the City of Miami Beach.
Respectfully Submitted,
W. TUCKER GIBBS, ESQ. RAFAEL E. ANDRADE, ESQ.
Co-Counsel for ARRP Co-Counsel for ARRP
P.O. Box 1050 1111 Lincoln Rd Suite 400
Coconut Grove, FL 33133 Miami Beach, FL 33139-2439
Tel (305) 448-8486 Tel (305) 531-9511
Fax (305) 448-0773 Email: ralph@randradelaw.com
Email: tucker@wtgibbs.com
,L. - r UL* r
fiAZ-
W. TUCKER TIBBS RAFAEL E. A oRADE
8
EXHIBIT "A"
DESIGN REVIEW BOARD
City of Miami Beach, Florida
MEETING DATE: August 05, 2014
FILE NO: 23062
PROPERTY: Citywide Distributed Antenna System (DAS) Nodes: 1604 Alton Road
•
LEGAL: That portion of the west side of the right-of-way known as Alton Road
located at LATITUDE: North 25°47'20.649", LONGITUDE: West
80°08'28.655"
Florida State Plain Coordinates :X=938717.491, Y=529948.984
IN RE: The Application for Design Review Approval for the installation of a
Stealth Distributed Antenna System (DAS) node within the public right-of-
way at the following approximate location outside of historic districts:
1604 Alton Road.
ORDER
The applicant, Crown Castle NG East, Inc, filed an application with the City of Miami Beach
Planning Department for Design Review Approval.
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
A. Based on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is inconsistent with Design Review
Criteria 5, 6, 8, and 12 in Section 118-251 of the Miami Beach Code.
B. The project would be consistent with the criteria and requirements of section 118-251 if
the following conditions are met:
1. Revised elevation, site plan and floor plan drawings shall be submitted to and
approved by staff; at a minimum, such drawings shall incorporate the following:
Page 2 of 4
Meeting Date: August 05, 2014
DRB File No. 23062
a. The exterior of the steel pole shall be powder coated finished and the final
exterior color selection shall be reviewed and approved by staff consistent
with the Design Review Criteria and/or the directions from the Board.
b. A copy of all pages of the recorded Final Order shall be scanned into the
plans submitted for building permit, and shall be located immediately after
the front cover page of the permit plans.
c. Prior to the issuance of a Certificate of Occupancy, the project Architect •
shall verify, in writing, that the subject project has been constructed in
accordance with the plans approved by the Planning Department for
•
Building Permit.
2. The Design Review Board retains jurisdiction so that should any new
development or construction adjacent to the approved DAS Node require the
removal of this DAS Node, this approval is subject to modification or revocation
pursuant to a noticed hearing before the Design Review Board.
3. The Final Order shall be recorded in the Public Records of Miami-Dade County,
prior to the issuance of a Building Permit.
4. All equipment shall be serviced and maintained by Crown Castle.
5. Satisfaction of all conditions is required for the Planning Department to give its
approval on a Certificate of Occupancy; a Temporary Certificate of Occupancy or
Partial Certificate of Occupancy may also be conditionally granted Planning
Departmental approval.
6. The Final Order is not severable, and if any provision or condition hereof is held
void or unconstitutional in a final decision by a court of competent jurisdiction, the
order shall be returned to the Board for reconsideration as to whether the order '
meets the criteria for approval absent the stricken provision or condition, and/or it
is appropriate to modify the remaining conditions or impose new conditions.
7. The conditions of approval herein are binding on the applicant, the property's
owners, operators, and all successors in interest and assigns.
8. Nothing in this order authorizes a violation of the City Code or other applicable
law, nor allows a relaxation of any requirement or standard set forth in the City
Code.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this
matter, and the staff report and analysis, which are adopted herein, including the staff
recommendations which were adopted by the Board, that the Application for Design Review
approval is GRANTED for the above-referenced project subject to those certain conditions
specified in Paragraph B of the Findings of Fact(Condition Nos. 1-8, inclusive) hereof, to which
the applicant has agreed.
Page 3 of 4
Meeting Date: August 05, 2014
DRS File No. 23062
PROVIDED, the applicant shall build substantially in accordance with the plans approved by the
Design Review Board, as determined by staff, entitled "City of Miami Beach Crown Castle
Distributed Antenna System Node 5_7", as prepared by Crown Castle, dated June 12, 2014,
modified in accordance with the conditions set forth in this Order and staff review and approval.
No building permit may be issued unless and until all conditions of approval that must be
satisfied prior to permit issuance as set forth in this Order have been met. The issuance of
Design Review Approval does not relieve the applicant from obtaining all other required
Municipal, County and/or State reviews and permits, including final zoning approval. If adequate
handicapped access is not provided on the Board-approved plans, this approval does not mean •
that such handicapped access is not required.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved by the Board, modified in accordance with the
conditions set forth in this Order.
If the Full Building Permit for the project is not issued within eighteen (18)months of the meeting
• date at which the original Design Review Approval was granted, the Design Review Approval
will expire and become null and void, unless the applicant makes application to the Board for an
extension of time, in accordance with the requirements and procedures of Chapter 118 of the
City Code; the granting of any such extension of time shall be at the discretion of the Board. At
the hearing on any such application, the Board may deny or approve the request and modify the
above conditions or impose additional conditions. If the Full Building Permit should expire for
any reason (including but not limited to construction not commencing and continuing, with
required inspections, in accordance with the applicable Building Code), the Design Review
•
Approval will expire and become null and void.
In accordance with Section 118-264 of the City Code, the violation of any conditions and
•
safeguards that are a part of this Order shall be deemed a violation of the land development
regulations of the CiCode. •
�
t
Dated this O day of Go ST— 20 14 .
DESIGN REVIEW BOARD
THE CITY OF MIAMI BEACH, FLORIDA
hh
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BY: I
TH AS R. MOONEY, AICP
PLANNING DIRECTOR
FOR THE CHAIR
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 1::::$� day of
20/6/by Thomas R. Mooney, Planning Director, Planning
. 1f►
e
Page 4 of 4
Meeting Date: August 05, 2014
DRB File No. 23062
Department, City of Miami Beach, Florida, a Florida Municipal Corporation, on behalf of the
Corporation. He is personally known to me.
01/.
ow put TERESA MARIA •
n MY COMMISSION iFF042188 NOTARY PUBLIC
EXPIRES:December 2,2017 Miami-Dade County, Florida
"'a►��P�.�'! Bonded IN Budget Noy 9arvlcea
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My commission expires: /g- oZ /
Approved As To Form:
City Attorney's Office: V )
• Filed with the Clerk of the Design Review Board on, 8-21-1IA
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