IN RE: Palau Sunset Harbor BEFORE THE CITY COMMISSION
CITY OF MIAMI BEACH, FLORIDA
CASE NO.:
[DRB File Nos. DRB19-0392, 22889]
IN RE: PALAU SUNSET HARBOR
/
AMENDED RESPONSE OF AARON AND ERICA NAHMAD TO INITIAL
BRIEF OF SUNSET ISLANDS 3 AND 4 PROPERTY OWNERS, INC. AND
TERRY BIENSTOCK
INTRODUCTION
Aaron and Erica Nahmad own a penthouse unit in the Palau Sunset Harbor
condominium building located at 1201 20 Street in the City of Miami Beach. The
Nahmads, along with the Palau Sunset Harbor Condominium Association, Inc. (the
"Association") filed an application (the "Application") with the City's Design
Review Board (the "DRB" or "Board") seeking: (1) design approval for
improvements to the Nahmads' unit rooftop; and (2) deletion and/or modifications
to two conditions of DRB Order No. 22889 (the "2012 DRB Order") to remove a
limitation on rooftop improvements for all penthouse owners.
The DRB conducted a lengthy hearing, at which Sunset Islands 3 and 4
Property Owners, Inc. and Terry Bienstock (the "Objectors"), individually and
through their counsel, objected to the Application. The DRB ultimately approved
the application unanimously. In approving the application, the DRB both issued a
new design review approval limited to the Nahmads' condominium unit and a
modification to the 2012 DRB Order to allow for rooftop improvements for the
entire condominium (hereinafter the "Orders"). The DRB's decision was consistent
with the Application and the published notice.
While the Objectors may disagree with the DRB's decision, the Board acted
within its City Code-mandated purview and its decision should not be disturbed.'
COUNTERSTATEMENT OF THE CASE AND FACTS
The Nahmads generally accept the facts as outlined by the Petitioners, except
as follows.
Background. The Palau property (the "Property") is a 54,765 square foot lot
at the northwest corner of the intersection of 20 Street and Sunset Drive/N. Bay
1 References to the Appendix provided by the Objectors in their Petition will be
followed by the designation "Objectors' Exhibit " and the appropriate
pagination. References to the exhibits appended to this Response will be followed
by the designation "Appendix" and the appropriate pagination. References to the
transcript of the July 2, 2019 Design Review Board hearing will be followed by the
designation "T." and the appropriate pagination.
2
Road. The existing Palau condominium development contains retail uses on the
ground floor, 45 residential units and associated internal parking. It was built in 2016
pursuant to Planning Board Order No. 2043 ("2012 Planning Board Order" or
"Conditional Use Permit") and the 2012 DRB Order. Under the terms of the
Condominium, the rooftop of the existing building is subject to the authority of the
Association, which is empowered to file development applications for that area.
To the north of the Property, across a canal, is Sunset Island No. 4. The
Property is surrounded on the west with a mix of residential and commercial uses.
To the south are additional commercial uses. To the east, is the guard gate for Sunset
Islands and across Sunset Drive, there are single family homes.
The Nahmads' penthouse unit (Penthouse 4), identified as Miami-Dade
County Folio No. 02-3234-242-0390, is located at the northeast corner of the
building and contains 4,079 square feet with a barren rooftop terrace above. Access
to the rooftop is not through the penthouse unit below, but rather through the
building's common life-safety stair and common passageway located outside of the
Nahmads' unit on the east side of the building.
All rooftop terraces on the north side of the building remain untouched and
unused due to the restrictions of the 2012 DRB Order. The restrictions limited any
rooftop elements to those explicitly shown in the plans at the time of approval back
3
in 2012 absent DRB approval. The 2012 restrictions make reasonable use of the
rooftop area, as would otherwise be afforded to a rooftop terrace, nearly impossible.
Proposed Rooftop Improvements. The Nahmads sought design review
approval for modifications to the existing rooftop terrace, including the addition of
new stairs directly from the unit below and corresponding stair enclosure, pergolas,
wood deck, and outdoor cooking area.
2012 DRB Order Modifications. As noted above, the 2012 DRB Order
expressly prevented the use of the rooftop in a manner sought by the Nahmads and
Association. It was therefore necessary to amend the 2012 DRB Order to allow the
Nahmads, the Association, and other penthouse unit owners to make similar rooftop
improvements (subject to separate design review approval).
The specific requested modifications of 2012 DRB Order were as follows:
1. Deletion of Condition B.4.c., which read as follows:
The roof top, including any canopies, and stairwell or elevator
bulkheads, shall be further developed and detailed to include any and
all such elements that may be proposed above the main roof level, and
shall be lowered in height to the extent possible, not to exceed a clear
height of 8'-6"between any finished floor and the underside of the roof
slab structure above, subject to the review and approval of staff. No
roof-top elements that are not explicitly shown on the roof plans and
elevations presented to the Board shall be approved at a later date by
staff. (emphasis added)
The deletion of Condition B.4.c. would allow for the installation of new
rooftop elements not shown on the 2012 plans.
4
2. Modification of Condition B.13.b.vi as follows:
FROM:
Outdoor cooking anywhere on the premises is prohibited. Kitchen and
other cooking odors will be contained within the premises. All kitchen
and other venting shall be chased to the roof and venting systems shall
be employed as necessary to minimize or dissipate smoke, fumes and
odors.
TO:
Outdoor cooking anywhere on the premises is prohibited, except
rooftop terraces of the penthouse units and the Association's rooftop
pool deck. Kitchen and other cooking odors from non-rooftop terraces
and the Association's non-rooftop pool deck will be contained within
the premises. All kitchen and other venting shall be chased to the roof
and venting systems shall be employed as necessary to minimize or
dissipate smoke, fumes and odors.
This modification was necessary to allow for outdoor grills and kitchens on
the individual unit rooftop terraces.
DRB Notice. As mandated by the City's Land Development Regulations, the
City's Planning Staff published notice of the DRB hearing. The notice provided the
following description of the Application:
DRB19-0392, 1201 20th Street—Palau Condominium Penthouse 04.
An application has been filed requesting Design Review Approval for
exterior alterations to an existing five-story building including exterior
design modifications to an existing private outdoor rooftop terrace,
including new decking,new shade structures, a new stairwell bulkhead,
new outdoor cooking areas, landscaping and installation of additional
outdoor features, and including the deletion of conditions of the original
Final Order, in order to accommodate the exterior improvements to the
rooftop penthouse deck and to permit outdoor cooking and to allow
other Penthouse owners and the Palau Sunset Harbor Condominium
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Association to do similar rooftop improvements, subject to staff review
and approval, and permit outdoor cooking. This item was originally
approved in 2012, pursuant to DRB File No. 22889. (emphasis added)
See Objectors Exhibit F.
The published notice explained the two elements requested in the Application:
(1) design review for the specific improvements for the Nahmads; and (2)
modifications to the 2012 DRB Order to allow the Nahmads, the Association, and
other unit owners to further develop the roof decks. The legal description of the
Application, which formed the basis of the mailed notice, included the entire Palau
condominium and also separately identified the Nahmads' unit.
Staff Report and Recommendation. The staff report and recommendation for
the Application (the "Staff Report") was equally clear as to the dual purpose of the
Application. Staff noted that:
The original Palau development had a contentious path to its final
approval. One of the more sensitive aspects of the discussions between
the development team and the neighboring residents from the Sunset
Islands was the reduction of the overall mass, height and encroachment
elements on the line of sight from Sunset Island 4. The final approved
plans contained roof-top elements that had been further setback from
the north elevation of the building, substantially reducing their visibility
as viewed from the rear yards of the residential properties on Sunset
Island 4.
* * *
Condition B.4.c. of the 2012 Final Order prohibits any new roof-top
elements that were not explicitly shown on the approved roof plans and
elevations.
* * *
Staff is sensitive to and considered the analysis and recommendations
in the original approval, which resulted in the conditions of the current
6
final order. However, as buildings and neighborhoods evolve, staff is
also open to new proposals and revisions for previously approved
projects. In this regard, staff toured the entire property, including the
subject rooftop terrace and we have concluded that the modifications
proposed herein do not adversely affect the design vision of the original
architecture and will not negatively impact any surrounding properties.
As such, staff recommends that the design of the rooftop terrace be
approved and the conditions of the original final order be amended as
proposed.
See Objectors Exhibit G, pg. 7.
Staff Review of DRB Criteria. As part of its report and recommendation, the
City's staff reviewed each of the design review criteria listed in City Code Section
118-251(a), finding that the Application either satisfied the relevant criterion or that
a particular criterion was not applicable.
In its review, staff concluded that the Application satisfied both City Code
Section 118-251(a)(6) and (7), which provide:
(6)The proposed Structure, and/or additions or modifications to an
existing structure, indicates a sensitivity to and is compatible
with the environment and adjacent Structures, and enhances the
appearance of the surrounding properties.
(7)The design and layout of the proposed site plan, as well as all
new and existing buildings shall be reviewed so as to provide an
efficient arrangement of land uses. Particular attention shall be
given to safety, crime prevention and fire protection, relationship
to the surrounding neighborhood, impact on contiguous and
adjacent buildings and lands, pedestrian sight lines and view
corridors.
7
DRB Review. The DRB reviewed the Application at length during its July 2,
2019 hearing. Following presentations by staff and the Nahmads,the Objectors were
permitted to present their arguments against the application.
Objectors' counsel opened his presentation by contending that the Nahmads
and the Association were not authorized to file the Application, as the scope of the
Application included the entirety of the condominium property. T., pp. 24-25.
Second, counsel contended that the Application, in seeking to delete Condition B.4.c
of the 2012 DRB Order, improperly invalidated a condition of Planning Board Order
No. 2043 and that Planning Board approval would need to be obtained before the
Board could review the Application. T., pp. 25-27. Third, counsel for the Objectors
contended that the City staff report and analysis was not fact-based, and therefore
not entitled to be treated as competent evidence supporting the Application. T., pp.
27-29.
Terry Bienstock, Vice President of the Sunset Islands 3 and 4 Property
Owners,Inc.,thereafter addressed the Board. T.,pp. 32-40. Mr. Bienstock noted that
he had been involved during the original approval of the Palau development. He
urged the Board to deny the Application, arguing that the proposal was not consistent
with a settlement agreement that the Sunset Islands 3 and 4 Property Owners, Inc.
had entered into with the developer of the Palau development. Mr. Bienstock noted
8
that he had already been informed by City staff that the settlement agreement was
not properly part of the Board's review. T., pg. 38.
Following testimony both in favor and in opposition from other members of
the public, Darren Gursky, Esq., general counsel to the Association, addressed the
Board. Mr. Gursky explained the Association's position on the Application. Mr.
Gursky noted that the Association had a duly noticed Board meeting and authorized
the filing of the Application. The signature of the Association's treasurer on the
Application was, in Mr. Gursky's opinion as the Association's attorney, consistent
with the requirements of Florida law. T., pp. 54-55.
Counsel for the Nahmads thereafter addressed the Board in response to
concerns raised by the Objectors and other members of the public. T., pp. 57-63.
Among other things, the applicant team explained how the proposed design of the
Nahmads' rooftop improvements would limit any visual impact on homes in Sunset
Island 4. T., pp. 62-63. Following the Nahmads' rebuttal presentation, the Board
debated the merits of the Application. The City Attorney noted that he had reviewed
the private settlement agreement and opined that nothing in the agreement "bars the
[A]pplication from being heard or approved by the Board." T., pg. 66. Following
additional discussion by the Board members, the Application was approved
unanimously. T.,pg. 78.
9
Petition for Rehearing. Following the Board's approval of the Application, the
Objectors filed a petition for rehearing, raising some of the claims raised in the
instant proceeding. The rehearing petition was unanimously rejected by the Board at
its November 5, 2019 hearing. This appeal followed.
STANDARD OF REVIEW.
The City Commission has the power to reverse or modify a Board design
decision and has a scope of review and jurisdiction that is essentially the same as a
circuit court reviewing a local government quasi-judicial decision. See City of
Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).
The City Commission's review is based on the record created in front of the
Board. Three issues define the Commission's jurisdiction. The Commission must
determine if the Board: (1) provided due process; (2) observed the essential
requirements of the law; and (3) based its decision on competent substantial
evidence. See City Code Section 118-9(c)(4).
ARGUMENT
I.
THE APPLICATION WAS PROPERLY
FILED.
The Application, as advertised and reviewed by the DRB, included two
components: (1) the approval of the specific design for the Nahmads' rooftop; and
10
(2) the modification of the 2012 DRB Order. The legal description of the
Application, which formed the basis of the mailed notice, included the entire Palau
condominium and also separately identified the Nahmads' unit. There was no
reasonable confusion as to whether the Application would impact all of the
condominium.
It also must be emphasized that the approved modification to the 2012 DRB
Order did not impose a requirement on any other unit owners. The modification
further did not change the design of any unit's rooftop terrace. Instead, the deletion
of Condition B.4.c of the 2012 DRB Order simply allowed other unit owners, with
the consent of the Association, to seek development on their terraces at some point
in the future.
At the DRB hearing, the Objectors suggested that the scope of the application
had to be limited to the Nahmads' unit or that the application should be continued
until all penthouse owners could execute. In its Petition to the Commission, the
Objectors' argument has been expanded to contend that the Nahmads and the
Association could not legally file an application that impacted the other penthouse
owners.
There are two issues with this argument. First, the Association has the
authority to file an application on any limited common element, such as the
building's rooftop terraces. Second, even if we assume that the Association could
11
not have filed an application on the entire building, it is the City's Planning Director,
not the Board, who determines whether an application is properly filed under the
terms of the City's Land Development Regulations. See City Code Section 118-
253(a). Neither the DRB, nor the City Commission in this appeal, is empowered to
base a decision on the question of whether an application is complete.
The signatures on the application are Erica Nahmad, Aaron Nahmad, and
Benjamin London, a Director of the Association. See Objectors' Exhibit E. The
Association's signature was made only after being authorized at a duly advertised
meeting of the condominium board. T., pp. 54-55.
The Objectors have suggested, without citation, that there is something
inappropriate regarding the Association approving the filing of an application that
includes the entire building. The City Code does not support that conclusion. There
is simply nothing in the City's regulations that prohibits a condominium association
for filing an application that impacts limited common elements of a building. All
balconies and terrace areas of the units in the Palau condominium are deemed to be
limited common elements under the term of the Declaration of Condominium.
Staff Determination of Application Completeness. Even if we assume that
there is any question as to the propriety of the Association authorizing the filing of
the Application for the entire building, the DRB has no authority to determine
whether the Application met the technical filing requirements. Unlike a court, the
12
Board has no inherent power to determine its own jurisdiction, Instead, the Board's
powers are strictly defined by the City's Land Development Regulations. Under the
terms of Section 118-253 of the City's Land Development Regulations, the City
Planning Department is responsible for reviewing an application for sufficiency.
Once an application is deemed complete, the Planning Department will place the
item on the Board's agenda. The DRB's review of an application is limited to the
listed criteria in Section 118-251 of the Land Development Regulations.
The DRB is not empowered to make its own determination as to whether an
application is properly before it. The determination of technical consistency with
application requirements is, instead, made by the City's Planning Director and
his/her staff. The City's professionals reviewed the Application, determined it was
properly filed and complete, ensured the Application was properly noticed, and
brought the Application to the Board.
Staff Determination Entitled to Deference. The determination of the City's
professional staff is consistent with the plain language of the City's regulations.
Even if any ambiguity exists as to whether the Application was properly before the
Board, Florida law requires deference to determinations made by the professional
staff who are charged with the interpretation of regulations. As Florida courts have
recognized, it is "well established proposition that an administrative construction of
a statute given by those charged with its enforcement and interpretation is entitled
13
to great weight, and the courts will not depart from such a construction unless it is
clearly erroneous or unreasonable." W. Flagler Associates, Ltd. v. Dep't of Bus. &
Profl Regulation, 139 So. 3d 419, 421 (Fla. 1st DCA 2014).
Aside from presenting general disagreement that the Association could file on
behalf of all owners, the Objectors have failed to present evidence or argument to
suggest that staff has erred in any fashion in its review of the Application. Staff s
determination is supported by the relevant regulations and must be upheld.
II.
THE DESIGN REVIEW BOARD ACTION
MODIFIED THE 2012 APPLICATION AS
APPLIED TO THE ENTIRETY OF THE
PALAU PROPERTY.
The Objectors have contended that the Board's motion in approving the
Application was limited only to the Nahmads' unit and therefore could not have
included the 2012 DRB Order.2 The relevant motion was to approve the Application
as presented, with staffs conditions. T., pp. 74-75. The Objectors suggest that the
motion could not have included the modification to the 2012 DRB Order. This
argument is deficient for two reasons.
First,the Objectors did not object to this process below and any such argument
must be deemed waived. In reviewing the Petition, the City Commission is sitting as
2 A similar argument was raised in the Objectors' Petition for Rehearing, which the
Board denied unanimously.
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an appellate court — based its review only on the record before the DRB. See City
Code Section 118-9(c)(4). The scope of appellate review under Florida law is limited
to those issues that were "preserved with a sufficiently specific objection below."
Clear Channel Communications, Inc. v. City of N. Bay Vill., 911 So. 2d 188, 190
(Fla. 3d DCA 2005).3 As the Objectors raised no complaint about the process below,
they cannot now seek to invalidate the DRB's action based on an alleged insufficient
motion.
Second, there is no requirement in the City's Land Development Regulations
that requires two separate motions to approve an application that clearly
encompassed two orders. It is undisputed that the Staff Report(available prior to the
July 2, 2019 DRB hearing) included drafts of both orders4 — the design review
approval of the Nahmads' specific improvements and the modification to the 2012
DRB Order.
3 See also First City Say. Corp. of Tex. v. S & B Partners, 548 So. 2d 1156, 1158
(Fla. 5th DCA 1989) (arguments not raised before quasi-judicial board may not be
considered on appeal); Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940, 943
(Fla. 5th DCA 1988) (same). The rule applies to both court proceedings and quasi-
judicial local government hearings. See id.
4 The Objectors' suggestion in their Petition that a typo in the Staff Report, which
references conditions in the "attached Draft Order," has any bearing on question of
whether the Board intended to approve the modification to the 2012 DRB Order is
simply ridiculous. It was clear from the advertisement, the Staff Report, and the
conduct of the lengthy hearing that the Board was approving two orders as part of
the Application.
15
The motion to approve the Application, all elements of which the Board had
been discussing at length, necessarily included both Orders.' If there was any
question as to the Board's intent in approving the Application, it was resolved when
the Board unanimously denied the Objectors' petition for rehearing, which included
the identical argument regarding the scope of the motion. There is no doubt as to the
Board's intent.
III.
THE 2012 PLANNING BOARD ORDER HAS
NO BEARING ON THE DRB DECISION.
As required by the City's Land Development Regulations, the Palau
development obtained conditional use approval from the Planning Board prior to
being reviewed by the DRB back in 2012. The Objectors suggest that the DRB's
action in approving the Application was inconsistent with the 2012 Planning Board
Order.
The record reflects that the DRB's action in the Application was consistent
with the 2012 Planning Board Order. Even if we assume that the DRB ignored a
suggestion included in the 2012 Planning Board Order (which it did not), the
Planning Board lacks any authority to require the DRB to undertake any specific
5 The Board's discussion included an encouragement for the Association to establish
uniform design standards for rooftops to guide future applicants. T., pg. 74.
16
action. Despite the Objectors' suggestion that the DRB was required to "implement"
a Planning Board condition, the DRB is under no such obligation.
At issue is Condition 5(e) of the 2012 Planning Board Order issued for the
Project. Condition 5 required the then applicant to "work with Design Review staff
to further modify the proposal to address the following, subject to review and
approval of the Design Review Board. . . ." Among the issues to be addressed in
modifications to the plan were "[r]educing encroachment on the line of sight from
Sunset Island 4." See Objectors' Exhibit B, pg. 2.
The Objectors have suggested that the 2012 Planning Board Order served as
a mandate on the DRB that was only "implemented" by Condition B.4.c. A quick
reading of the 2012 Planning Board condition clearly demonstrates otherwise. The
Planning Board required the then applicant to "work with Design Review staff' to
modify the design — "subject to the review and approval of the Design Review
Board." See Objectors' Exhibit B, pg. 2 (emphasis added). The Planning Board
could not, nor did it attempt to, require the DRB to undertake any particular action.6
6 In their Petition, the Objectors quote extensively from Planning Staff s
recommendation for the 2012 Planning Board application in support of the
suggestion that the Board's action on the Application was inconsistent with the 2012
Planning Board Order. Staffs recommendation is just that — a recommendation —
and has no legal bearing. The Planning Board acts solely through its orders. See
Metro. Dade County v. Blumenthal, 675 So. 2d 598, 604 (Fla. 3d DCA 1995), on
reh'g (Feb. 21, 1996).
17
Instead, the Planning Board required the applicant to work on design changes that
would be satisfactory to the DRB.
Even if the Planning Board had purported to compel the DRB to undertake a
specific action, it lacked the authority to do so. The Design Review Board is
empowered to review the design of all significant development within the City. See
City Code Section 118-17. The DRB's powers are complementary, not subservient,
to the Planning Board's conditional use authority. The Planning Board lacks any
power to limit the DRB's scope of review or to mandate the DRB take any action.
Moreover, the record reflects that both City staff and the DRB remained
cognizant of the line of sight issues referenced in the 2012 Planning Board Order
when reviewing the original 2012 design application as well as the Application. As
noted in the Staff Report for the Application, the City's Design Review staff visited
the Property and was confident that the modifications proposed "do not adversely
affect the design vision of the original architecture and will not negatively impact
any surrounding properties." See Objectors' Exhibit G, pg. 7.
The Nahmads' architect also prepared a line of sight drawing that was
included in the hearing plan set and discussed during the DRB meeting. See Exhibit
A,pg.A.-0.8, T.,pp. 62-63. That drawing showed that the only terrace improvement
18
reasonably visible from Sunset Island 4 backyards was an integrated planter.' See
id. While the Objectors may disagree with the DRB's conclusion, it was solely
within the Board's jurisdiction to determine whether the Application was consistent
with the City's design criteria.
IV.
THE DRB'S DECISION WAS SUPPORTED
BY SUBSTANTIAL COMPETENT
EVIDENCE.
The Objectors contend that the record before the DRB lacked sufficient
evidence for the Board to conclude that the Application was consistent with Sections
118-251(a)(6) and (7) of the Land Development Regulations, which focus on
compatibility of proposed development with adjacent structures and the surrounding
area. Specifically,the Objectors suggest that the"only evidence in record"regarding
these criteria is a conclusory statement in the Staff Report that the two criteria were
met. The Objectors' position is inconsistent with both the record before the DRB
and Florida law.
Local government quasi-judicial zoning decisions are required to be supported
by "substantial competent evidence,"which has been defined as information that(1)
' In order to provide additional privacy for Sunset Island 4 residents, the DRB
inserted a condition of approval for the Nahmads' terrace design that required the
widening of the integrated planter to five (5) feet when measured from the edge of
the terrace. See Objectors' Exhibit L, pg. 2.
19
"will establish a substantial basis of fact from which one fact can be reasonably
inferred;" and(2) 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).
Generally, staffs professional recommendation is alone sufficient to
constitute substantial competent evidence. See Hillsborough County Bd. of County
Comm'rs v. Longo, 505 So. 2d 470 (Fla. 2d DCA 1987), see also City of Hialeah
Gardens v. Miami-Dade Charter Foundation, Inc., 857 So.2d 202, 204-05 (Fla. 3d
DCA 2003). The Objectors argue that the Staff Report for the Application lacks
sufficient detail to constitute "evidence."
The Objectors misrepresent the Staff Report, which spends multiple pages
discussing the history of the Palau development and the proposed changes. See
Objectors' Exhibit G, pg. 5-7. Rather than reflect a perfunctory analysis, the Staff
Report clearly demonstrates that the City's Design Staff reviewed the impact of the
proposed change, noting that, in staffs opinion, it would "not negatively impact any
surrounding properties." See Objectors' Exhibit G, pg. 7.
The Objectors' position also reflects a misapprehension of Florida law on the
relevance and sufficiency of evidence for design or aesthetic approvals. In the instant
case, the DRB was not, for example, reviewing traffic studies or determining
whether an applicant demonstrated a hardship to support a variance. Instead, the
20
Board applied its design expertise to a decision that, at bottom, is one of aesthetic
compatibility.
The category of evidence required to support a determination of aesthetic
compatibility in Florida is quite broad and generously defined. For example, the
Third District Court of Appeal concluded that a Miami-Dade County decision
regarding a potential self-storage use was properly based on just the following: (1)
lay testimony from neighbors regarding the appearance of the proposed building and
its compatibility with the surrounding area; (2)the submitted"the site plan, elevation
drawings, and the aerial photograph." Metro. Dade County v. Section 11 Prop.
Corp., 719 So. 2d 1204, 1205 (Fla. 3d DCA 1998). In essence, Florida courts have
determined that local boards can render decisions on aesthetic compatibility by
simply reviewing the most basic set of development plans. See id.
In the instant case, the plans before the Board included, among other things:
(1) multiple photographs; (2) detailed site, elevation, and landscape plans; (3) three
dimensional renderings of the proposed improvements.; and (4) a line of sight
drawing showing the visual impact, or lack thereof, of the proposal on the Sunset
Island 4 residents. See Exhibit A. The submitted plans, plus the thoughtful Staff
Report and extensive testimony at the hearing, are more than sufficient evidence to
support the Board's conclusions.
21
The Objectors' suggestion that the aerial photos, detailed drawings,
renderings, line of sight drawing, and other information before the Board was
insufficient evidence to support the Board's approval is simply not consistent with
Florida law.Florida courts have established an evidentiary baseline for compatibility
determinations and aesthetic zoning approvals far below what was before the Board
in this case. See Metro. Dade County v. Sportacres Dev. Group, Inc., 698 So. 2d
281,282 (Fla. 3d DCA 1997) (record containing maps,reports and other information
as well as neighbor testimony sufficient to support compatibility determination);
Section 11, 719 So. 2d at 1205.
V.
THE DRB DID NOT IMPROPERLY
DELEGATE FINAL REVIEW TO CITY
STAFF.
The Objectors.contend that the DRB improperly delegated its powers to City
staff in issuing the design review approval of the Nahmads' specific improvements
and the modification to the 2012 DRB Order.8 The Objectors contend that conditions
in which the Board notes that "final design" of a particular element must "be
8 The language at issue in the modification to the 2012 DRB Order is not new—the
language was identical when the Palau project was approved in 2012. Any challenge
to that order is long time-barred. See City Code Section 142-118-9(c)(3)(A)
(deadline to file appeal of DRB decision twenty days after rendition). As discussed
infra, the Objectors' position is fatally deficient even if the 2012 DRB Order
language was properly subject to appellate review.
22
provided in a manner to be reviewed and approved by staff consistent with the
Design Review Criteria and/or directions from the Board" are improper delegations
of the DRB's authority. See Petition, pg. 18. The Objectors' interpretation of this
language is not consistent with the City's Land Development Regulations or the
relevant law.9
As an initial matter, the City's Planning Director has the explicit authority to
review building permit plans for consistency with the decisions of the DRB and
approve minor modifications to the plans. See City Code Section 118-258(b). The
Director's action in reviewing final design details at the time of permit acts as an
implementation of the DRB's decision. The Objectors' suggestion that the Board
has the "sole authority" over design review under the City's regulations is simply
not correct.
Leaving the Director's codified authority aside, the language at issue is not an
improper delegation under Florida law. An improper delegation of authority occurs
when a local government either provides itself (in form of a city commission or
council) or an administrative agency with zoning powers without establishing
"reasonable standards" for governing the exercise of discretion. City of Miami v.
Save Brickell Ave., Inc., 426 So. 2d 1100, 1104 (Fla. 3d DCA 1983). In other words,
9 Identical language appears in a great majority of Design Review Board orders as
it is impossible for the Board to review every minor detail of a development
project.
23
a local government must provide adequate codified standards to guide a
decisionmaker in zoning decisions. See id.
If we interpret the language of the DRB Orders as a delegation of the Board's
authority to the City's Planning Director, those delegations are not unfettered. The
Director's review will be subject to both the City's "Design Review Criteria" and
DRB guidance. The "Design Review Criteria" are the same standards applied by the
Board -- nineteen standards codified in Section 118-251 of the City's Land
Development Regulations.
In sum, the City's Planning Director has codified authority to review building
permit plans for consistency with the DRB's orders. Any delegation of authority
made by the DRB to the Director in the Orders was explicitly conditioned on the
requirement to apply the City's lengthy and comprehensive Design Review Criteria,
as well as any guidance provided by the Board. The Objectors' suggestion that an
improper delegation of zoning power occurred must be rejected.
CONCLUSION
This appeal represents another attempt by the Objectors to delay the final
resolution of the Application, which was heard and approved in July 2019. The
Objectors' first attempt at delay was to file a completely meritless petition for
rehearing with the DRB, which was unanimously denied after four months of
24
process. The instant appeal followed in December 2019. So far, the Objectors have
been able to delay the Nahmads' improvements to their home by at least a year.
As explained above, none of the Objectors' legal arguments have any merit.
The Application was filed and processed in the same manner as any other DRB
application. The Application was properly advertised and its scope was clear to all
involved, including the Objectors. The Application was consistent with the relevant
terms of the Palau project's Planning Board approval. The record before the DRB
contained detailed and comprehensive information that allowed the Board to make
an educated decision on the proposal. Finally, the DRB did not improperly delegate
its authority to City staff, who are empowered to implement the Board's orders. This
appeal must be denied.
Respectfully submitted,
BERCOW RADELL
FERNANDEZ LARKIN &
TAPANES, PLLC.
Attorneys for
Aaron and Erica Nahmad
Southeast Financial C er
200 So. Biscayne d., S . 850
Miami, lor.•
(305 5300 (p► e)
�7-622 "►:x "
ii/
T'l"rim Penn, sq.
gpenn@brzoninglaw.com
Fla. Bar No. 484733
25
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this Response was sent
by electronic mail on this 2nd day of July 2020 to Tucker W. Gibbs, Esq., Attorney
for Sunset Islands 3 and 4 Property Owners, .Inc. and Terry Bienstock, at P.O. Box
1050 Coconut Grove, Florida 33133 (tucker@wtgibbs.com) and Nicholas Kallergis,
Esq., Senior Assistant City Attorney, City of Miami Beach 17! ; invention Center
Drive, Miami Beach, Florida 33139 and ni%,.;ra ,'is • ib;.chfl._ov, attorney
for the Design Review Board.
G - 'e s•. .
g. n@brzoninglaw.com
Fla. Bar. No. 484733
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the t- • orego.. ' es► ense is written in
Times New Roman 14-point font purs. ant to - 9.210 . ), Florida Rule of
Appellate Procedure.
:ra. .mPe Esq.,
gpenn@brzoninglaw.com
Fla. Bar No. 484733
26