Consolidated Reply to Response of CMB and Amneded Response off Aaron and Erica Namhad BEFORE THE MIAMI BEACH.CITY COMMISSION
DESIGN REVIEW BOARD APPLICATION: DRB19-0392
IN RE: PALAU SUNSET HARBOR
MODIFICATION TO DRB ORDER ON FILE
NO. 22889 DATED OCTOBER 2, 2012,
SPECIFICALLY DELETING ALL OF
CONDITION B.4.C., AND AMENDING
CONDITION B.13.B.V1 AS SET FORTH IN
"SUPPLEMENTAL ORDER" DATED JULY
2, 2019, REGARDING PROPERTY
IDENTIFIED AS 1201-1237 20TH STREET,
AND "MODIFIED ORDER" DATED JULY 2,
2019, REGARDING PROPERTY
IDENTIFIED AS 1201 20TH STREET,
PENTHOUSE 4.
CONSOLIDATED REPLY
TO RESPONSE OF THE CITY OF MIAMI BEACH and the
AMENDED RESPONSE OF AARON AND ERICA NAMHAD
TO PETITION OF SUNSET ISLANDS 3 and 4 PROPERTY OWNERS,INC.
AND TERRY BIENSTOCK
Sunset Islands 3 and 4 Property Owners, Inc. and Terry Bienstock
(collectively "neighbors"), through undersigned counsel, hereby file this reply to •
the response of the City of Miami Beach ("city") and the amended response of
Aaron and Erica Namhad ("applicants") to the neighbors' petition. Neighbors seek
to reverse the City of Miami Beach Design Review Board ("DRB"or "board")
decision to approve an amendment to the 2012 Design Review Board Order that
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protects adjacent Sunset Island 4 property owners' sight-lines. Exhibit A. 2.1
Underlying the 2012 DRB approval is the 2012 conditional use final order of the
Miami Beach Planning Board.2 Neighbors seek reversal of the DRB decision to
approve the application. In the alternative, pursuant to section 118-9(c)(4), the
neighbors request that the commission.remand the matter back to the DRB with
1 All citations to exhibits are indicated by "Exhibit" or. "Supp. Exhibit" followed
by the appropriatetab letter and page number. Citations to the transcript of the July
2, 2009 DRB consideration of the application on appeal here is indicated by tab
letter"T" followed by the appropriate page and line numbers.
•
2 That final order, dated May 22, 2012, is conditioned on, among otherthings, a
directive to the developer of the Palau Condominium to:
"...work with the Design Review staff to further modify the proposal
•
to address the following, subject to review and approval of the Design
Review Board:
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* *
e. Reducing the encroachment on the line of sight from Sunset
Island 4."
•
The DRB final order approving the Palau Condominium project included condition
B.4.c., which provided limitations on the rooftop elements that would be allowed •
in order to reduce the encroachment by the proposed Palau Condominium on the
sight-lines of Sunset Islands 4 property owners. See Exhibit C. 5 and 6-7.
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instructions to review the matter consistent with the requests in the petition and this
reply.
ARGUMENT
1. The DRB only approved one final order --the Supplemental
Order,which applied only to File No.DRB19-0392, 1201 20th
Street - Palau Condominium Penthouse 04.
Respondents, City of Miami Beach and Aaron and Erica Namhad •
erroneously contend that the DRB, when it approved the Namhad's application,
approved two final orders -- a Supplemental Order regarding the Namhad's
property at 1201 20th Street, Penthouse 4, and a Modified Order regarding "1201-
1237 20th Street." City Response, 2-3, Applicant Response, 16. This contention is
wrong because the only motion was for approval of"DRB 19-0392, 1201 20th
Street-- Palau Condominium Penthouse 04. And that motion passed. Exhibit I. 7.
Design Review Board Minutes, July 2, 2019. That motion is memorialized in the
Supplemental Order. Exhibit L.
The application before the DRB was for the Namhad's property at "1201
20th Street,PH 04."3 Exhibit E. 1. The public notice letter (Exhibit E.1), agenda
3 The application form shows the property owner as the Namhads and the Palau
Sunset Harbor Condominium Association. Exhibit E.
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(Exhibit H.2), and the minutes (exhibit I.7), identify the hearing item as a"Petition
for: DRB19-0392, 1201 20th Street=-Palau Condominium.Penthouse 04." The
• subject of the staff report:is: "DRB 19-0392, 1201 20th Street,Unit 404."
File No. 22889 relating to the property at 1201-1237 20th Street Palau at
Sunset Harbor is referenced in the Modified Order but not in the public notice
letter (Exhibit E.1), agenda (Exhibit H.2), and the minutes (Exhibit I.7). Therefore,
it was not properly before the DRB no matter the language of the application.'
The applicants incorrectly argue that the DRB approved the application for
the entirety of the property. That argument flies in the face of the facts showing
that the board only approved the application presented as "Petition for: DRB 19-
0392, 1201 20th Street--Palau Condominium Penthouse 04." That description does
not include the entirety of the property because the entirety of the property is
4 Furthermore, only the Namhads are listed as "applicant" in the application. Under
section 114-1, an applicant is any person seeking to undertake any development as
defined in that section. That section says: "Development means the undertaking of
any building or construction, including...the making of any material changes in
the use or appearance of property or structures... or any other action for which
development approval is necessary." See also, Supp. Exhibit Q 5-6, Petition for •
Rehearing. Neither the condominium association, nor the condominium and
penthouse owners, are applicants under these applicable code definitions.
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correctly described as "1201-1237 30th Street --Palau at Sunset Harbor."Exhibit
A.1. 2012 DRB Order.
The applicants wrongly state that the neighbors did not place argument
regarding the validity of the Modified Order in the record of the original DRB
hearing and therefore it"must be deemed as waived." Applicant's Response, 14.
This argument ignores the reality that the neighbors. made argument regarding the
validity of the Modified Order, through their petition for rehearing, and only could
address the validity of that order after that order was'signed and rendered.
The city's response states that the.entirety of the condominium is subsumed
in the DRB approval through the reference to "DRB 19-0392, 1201 20th Street--
Palau Condominium Penthouse 04" in the minutes, public notice and staff report.
That statement fails to address the subject line of the Modified Order, which reads: •
1201-1237 30th Street--Palau at Sunset Harbor and references the file number for
the 2012 DRB Order entire site (File No. 22889). Exhibit M. 1. Modified Order.
The board did not vote on that order because it was not noticed,not on the agenda
and.not in the minutes of the DRBmeeting of June 2, 2019. The only approved
item was the Supplemental Order regarding 1201 20th Street, Penthouse 4.
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2. Neighbors' request that the applicant seek planning board
approval prior to DRB review is properly based on zoning code
section 142-303 which requires an applicant for a proposed.
109,279 square-foot mixed retail-residential building to first
obtain a conditional use permit.
The planning board issued its conditional use permit in 2012, with a
condition that the applicant work with the design review staff to protect sight
lines from Sunset Island 4. That board retained jurisdiction over the
conditional permit, to enforce its conditions. Exhibit B. 2. Conditional Use
Permit.. In addition, the planning board retained authority to require
subsequent owners to appear before it "to affirm their understanding of the
conditions" in the permit. Id. .
The DRB conditions at issue here are the direct result of the conditional use
permit's requirement to modify the development to protect against encroachments
on the line of sight from Sunset Island 4. Exhibit C, 5-7, 2012 Staff Report. The
applicant here proposes to eliminate all those protections contrary to both condition •
5.e. of the conditional use permit granted by the planning board and condition
B.4.c.. of the DRB approval. And the applicants here did so without informing the
planning board of their proposal.
Applicants argue that the planning board has no bearing in this matter. This .
ignores the plain language in section 1 of the conditional use permit that it.
maintains jurisdiction over the conditional use permit that includes,.among many
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other conditions, working with design review staff in "reducing encroachment on
the line of sight from Sunset Island 4."Exhibit B. 2.
Neighbors do not seek to have the commission direct the DRB to enforce a
conditional use, as the city erroneously claims. The neighbors believe that the
planning board has the same purview over possible changes to its conditional use
permits as it does to its consideration of an application for a conditional use permit
under section 142-303(a)(10)5. This matter is easily and legally resolved. At the
hearing on July 2, 2019, the neighbors' counsel proposed that the DRB continue
the application "until the planning board addresses this matter and removes the
condition." T. 26:18-27:13. The failure of the DRB to take this innocuous action, is •
a failure to follow the essential requirements of law.
3. Respondents erroneously rely on a city staff report that is
based on opinion and a contradictory'premise: that the
removal of existing requirements, which prohibit intrusions
into Sunset Island 4 sight lines, will reduce encroachment on
those sight lines and nevertheless is competent substantial
evidence to support the DRB decision.
Applicants' legal analysis of law surrounding'competent substantial
evidence fails to recognize that competent substantial evidence is fact-based and
Section 142-303(a)(10) addresses conditional use review for buildings of over •
50,000 square-feet in size, "which review shall be the first step in the process
before the review by any of the other land development boards."
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relevant. That is, to be competent substantial evidence,the presentationof the
information must show how it meets the required criteria and supports the board's
•
decision. Jesus Fellowship v. Miami-Dade County, 752 So.2d 708, 709 (Fla. 3d
DCA 2000).6 .
According to the applicants, the staff report analysis provides the necessary
factual basis to be competent substantial evidence. Here is what the staff report
provides in its analysis:
1. Descriptionsof the applicants' request, the Palau Condominium, the
eight penthouse units and the rooftop terrace, the location of the •
applicant's unit, the access to the to the roof top terrace.
2. An aerial photograph of the condominium.
6 Applicants attempt to craft a new, less onerous, definition of competent
substantial evidence for"design or aesthetic approvals." Applicants' Response20 •
-
22. They argue that there is a higher standard for competent substantial evidence
when addressing traffic studies or the variance hardship standard, and:a lesser .
standard for competent substantial evidence in the context of designand aesthetic.
issues such as "the appearance of a building and its compatibility with the
surrounding area." Florida courts do not recognize different categories of
competent substantial evidence. As long as the evidence is fact-based and relevant
it is competent substantial evidence. De Groot v. Sheffield, 95 So.2d.912, 916 (Fla.
1957),Apopka v. Orange County, 299 So.2d 657, 660(Fla 4th DCA 1974), Jesus
Fellowship, 709-710.
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3. A paragraph explaining that the Palau.development approval was
contentious and that the neighbors' issues centered on reduction of the
overall mass, height and "encroachment elements on the line-of-sight
from Sunset Island 4." The report explained that the applicants'
proposed roof top elements had been "further set back from the north
elevation to reduce visibility from Sunset Island 4.
4. Two paragraphs describing the improvements to the applicants' roof
top terrace and an explanation why the applicants are seeking the
amendments to the 2012 DRB Order. The last sentence notes that all
the improvements will not be visible from Sunset Island 4, except for
the continuous edge planter. 0
5. The final paragraph explains that the building is under the maximum
height for its zoning.district. 'The "analysis" concluded with the
following: •
"...[A]s 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 roof top 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 [approval of the application]"
Exhibit G. 5-7. DRB Staff Report.
• Applicants claim that this staff analysis provides enough"detail" to be
•
competent substantial evidence. Response, 20. However, the basis of the required •
Page 9
competent substantial evidence is not its detail:The evidence must be be factual
and relevant to the review criteria.
The sum total of the competent substantial evidence that the applicant cites
in the staff report is the "staff's opinion" in the analysis., According to that opinion
the proposed amendments to the 2012 Order "would not negatively impact any
surrounding properties." Id. But, nothing in the analysis applies the facts presented
to design review criteria 6 regarding compatibility with adjacent properties. •
Moreover, the analysis fails to explain how the proposed amendments to the 2012
Order satisfy criteria 7, which requires particular attention to the amendments'
impact on adjacent and contiguous buildings and lands and pedestrian sight lines.
There is no fact-based evidence that is relevant to the specific criteria
anywhere in the analysis. While the recitation of facts provides information,,it is
information not tied to the criteria, as required in Jesus Fellowship. The
implication in the staff report that this neighborhood has "evolved," thereby.
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resulting in a need to revise a four-year-old project like the Palau condominium is
not a factualbasis for this evolution. And, the opinion of the staff report'author that
these changes will not negatively impact "any surrounding properties" is without
factual basis. Indeed,the competent substantial evidence in the record, including
the applicants' line-of-sight study, shows that the planters and plants in them will
intrude into the sight lines of Sunset Island 4. •
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The multiple photographs, detailed plans and renderings, and the line of
sight drawing are not competent substantial evidence because the record must
show the relevance of those documents to the criteria to which those documents
supposedly relate. Without that nexus, these documents are not.competent
substantial evidence. .
"The mere presence in the record of these items [county zoning
maps, professional staff recommendations, aerial photographs and
testimony in objection] is not,however, sufficient. They must be or
contain relevant valid evidence which supports the Commission's
decision." .
Jesus Fellowship, 709 .
These documents and opinions are without factual foundation and not
relevant. Therefore, they are not competent substantial evidence to support the
approval of the applicants' requests to amend the 2012 Order.
4. Respondents misinterpret the law regarding the unlawful
delegation to design review staff of DRB authority to make
design review decisions when they assert that staff can be
directed by the DRB to assume its decision-making function. .
The basis of the authority of the DRB to make design review decisions is the
city commission's enactment of ordinances that give it that power. That authority .
is in zoning code provisions that enumerate the power that the commission grants
to the DRB subject to specific guidelines and standards. Specifically, those
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guidelines and standards are set forth in Article.VI, Design Review Procedures.
The provisions of Article VI provide the authority under which the DRB functions
and the criteria it applies in its design review capacity. •
The Florida Supreme Court has determined that power must be delegated by
the legislature to administrative bodies pursuant to standards within that legislative .
enactment.Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1979).
Both respondents misstate the law regarding an unlawful delegation of
authority because there is no city ordinance that allows the DRB to delegate its
authority to design review staff. Nor is there any city ordinance that gives city
•
design review staff.such authority. .
Neither the applicants nor the city can point to a single grant of authority by
the city commission to staff to "review and approve" final design and details of
DRB, such as the conditions in the Supplemental and Modified orders at issue
here. 7Adding language that allows staff approval of final design and detail "in a
manner to be reviewed and approved by staff consistent with the Design Review
z The applicant claims that the "modification to the 2012 DRB. Order is.notnew"
and contains the identical language of the 2012 DRB approval. Thus, any
challenge to that order is time-barred. However, the Modified Order is a separate
document, and if it is determined that the DRB approved it on July 2, 2019, it
stands as such notwithstanding its origins in the 2012 DRB Order. Therefore, •
neighbors' challenge to the Modified Order is not time-barred.
Page 12 •
criteria and/or directions from the Board" does not cure the illegal delegation.
Exhibit L. 2, condition 1.D.2.a,c,d, and e. A delegation of authority to staff can
only be made by a legislative body (here the city commission), and it must be
accompanied by clear criteria or standards.Askew, 925. The DRB's attempt to
delegate its power to city staff fails because that delegation is not the result of city
commission legislation that includes any criteria or standards to be applied by the
city staff.
The planning director has the authority from the city commission pursuant to
zoning code section 118-258(b), to review building permit plans for consistency
with DRB-approved plans and to approve minor modifications to those plans. Any
power the planning director has is because the city commission has granted him
that authority with specific criteria to apply in carrying out the delegated
responsibilities. That does not mean that the DRB, which has no legislative
authority whatsoever, can delegate its power to city staff to make final decisions on
design review matters. .
The law is clear that the DRB, as a non-law-making board of the city, has no
authority to delegate its power to makefinal design review decisions. Furthermore,
the city commission, which has that power to delegate, has chosen not to delegate
to design review staff any DRB authority to make final design review decisions.
Therefore, the conditions in the Supplemental and Modified orders that authorize
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staff to make final design review decisions are illegal delegations of the DRB's
authority. Therefore, the decisions in both the Supplemental and Modified orders
must be quashed because they are based on illegal delegations of its authority by
the DRB.
CONCLUSION
The decision by the Design Review Board fails to comport with the
procedural processing requirements set forth in the zoning code, when the board
voted to approve only one of the two signed orders. Neither the applicant,design
review staff nor the DRB sought to inform the planning board or seek its approval
for its de-facto amendment to the conditional use permit prior to its presentation of
its amendments to the DRB. Respondents' reliance on the design review staff
report as competent substantial evidence is misplaced because the staff report is no
more than a recitation of facts with no connection to the code criteria and is
opinion without basis in fact. Several conditions to both orders include unlawful
delegations to design review staff of DRB approval authority without the necessary , . -
legislativeenactment and standards. .
These failures in the consideration of the proposed amendments to the 2012
DRB Order warrant the quashal of both the Supplemental Order and the Modified
Order by the city commission. .
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Respectfully Submitted, July 27, 2020,
W. TUCKER GIBBS, ESQ.
• Attorney for Neighbors
Sunset Island 3 &4 Property Owners,
Inc., and Terry Bienstock
P.O. Box 1050 •
Coconut Grove, Florida 33133
Tel (305)448-8486
Email: tucker@wtgibbs.com
• W. Tucker Gibbs
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was served by email to:
Raul J. Aguila, City Attorney, raulaguila@miamibeachfl.gov, First Assistant City .
Attorney; Nicholas E. Kallergis, nickkallergis@miamibeachfl.gov, 1700
Convention Center Drive, Fourth Floor, Miami Beach, FL 33139, and Michael W.
Larkin, Esq., mlarkin@brzoninglaw.com; and Graham C. Penn, Esq.,
gpenn@brzoninglaw.com, Bercow Radell Fernandez Larkin&Tapanes 200 S.
Biscayne Blvd. Suite 850 Miami, FL 33131 - 2357 , this.17 day of July 2020. .
Jada
af&,
W. Tuc r Gibbs
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Supplemental Exhibit
EXHIBIT`Q
•
• . BEFORE THE DESIGN REVIEW BOARD
• OF THE CITY OF MIAMI BEACH,FLORIDA
• FILES: DRB19-0392 and 22889
IN RE: PALAU SUNSET HARBOR,MODIFICATION TO DRB ORDER
• ON FILE NO.22889 DATED OCTOBER 2,2012, SPECIFICALLY
DELETING ALL OF CONDITION BAC.,AND AMENDING
CONDITION B.13.B.VI AS SET FORTH iN"SUPPLEMENTAL
ORDER"DATED JULY 2,2019,REGARDING PROPERTY
IDENTIFIED AS 1201-1237 20TH STREET,AND "MODIFIED
ORDER".DATED JULY 2,2019,REGARDING PROPERTY
IDENTIFIED AS 120120THSTREET,PENTHOUSE 4.
PETITION FOR REHEARING
Petitioner Sunset Islands 3 and 4 Property Owners,Inc., and Terry Bienstock
("petitioners" or"neighbors"),pursuant to section 118-9, City of Miami Beach
. Zoning Code ("zoning code"),petition the City of Miami Beach Design Review
Board("DRB")for a rehearing on its purported decisions that granted an
application for modification of the October 2, 2012 design review approval for the
Palau Sunset Harbor development(DRB File No. 22889) (Exhibit A) and state as .
follows: .
1. On or about April 22, 2019 Aaron and Erica Nahmad("applicants") •
filed an application("application") requesting DRB approval of two modifications
of the 2012 DRB Order dated October 2, 2012. ("modifications")Exhibit B.
2. The applicants sought the following:
a. Deletion of Condition B.4.c which.states:
"The rooftop 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 •
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Page 1 of 10 . •
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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 rooftop 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. -
b.. Addition of the underlined exceptions to Condition B.13.b.vi.:
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.
•
3. The city provided the required public notice regarding"Petition for:
DRB19-0392, 1201 20th Street--Palau Condominium Penthouse 04" to be heard
on July 2, 2019.Exhibit C.
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4. The Miami Beach Planning Department staff prepared and presented to
the DRB the Staff Report and,Recommendation("staff report")on"DRB 19-0392,
1201 20th Street--Palau Condominium Penthouse 04."Exhibit D.
5. On July 2, 2019,the DRB held a publicly-noticed, quasi-judicial
hearing on DRB19-0392, 1201 20th Street--Palau Condominium Penthouse 04,
reviewed and approved the application to modify the 2012 design review approval
for the Palau Condominium. Exhibit E and F.
6. On July 15, 2019,the board rendered two orders that granted the • • .
requested modifications.pursuant to design review criteria set forth in section 118-
251 of the zoning code(Exhibit G): a"Supplemental Order"regarding"DRB19
. • 0392 (AKA DRB File No. 22889)" for the property at 1201 20th Street,Penthouse
•
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4 (Exhibit H) ("Supplemental Order"), and a"Modified Order" regarding"File No.
22889" for the property at"1201-1237 20th.Street, Palau at Sunset Harbor"
(Exhibit I) ("Modified Order"). •
7. Section 118-9 permits affected persons who have appeared before the
Design Review Board on the matter, or who own property within 375 feet of the
applicant's project,to petition the board for a rehearing.Exhibit J. •
8. Petitioner Sunset Islands 3 &4 Property Owners, Inc., and Terry
Bienstock attended,were represented by counsel and participated in bothhearings,
and are"affected persons"pursuant to section 1.18-9(a)(2)B.iii.
9. Petitioners seek a rehearing and request the DRB to take additional
testimony and to issue a new decision reversing or modifying its previous •
decisions.
10. Petitioners assert that the board has overlooked matters set forth herein
that render its decisions erroneous. .
I. THE DRB OVERLOOKED AND FAILED TO CONSIDER
THE CITY'S FAILURE TO PROVIDE REQUIRED
NOTICE FOR.THE DRB DECISION MEMORIALIZED .
• IN ITS MODIFIED ORDER. .
11. The only item properly noticed and presented to the DRB relating to the
Palau Condominium at the July 2, 2019 DRB hearing was the Supplemental Order:
DRB 19-03 92, 1201 20th Street--Palau Condominium Penthouse 04.Exhibits C,
and E.
12. That notice did not state that the DRB hearing would also apply to any
other property, including"1201-1237 20th Street Palau Sunset Harbor."Exhibit C.
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13. The city's public notice only references DRB 19-0392,which sought to
modify the 2012 DRB approval as it applied to penthouse 4 and no other property.
Id. '
14. The agenda and city-produced minutes only reference agenda item 16.
"DRB 19-0392, 1201 20th Street--Palau Condominium Penthouse 04, the
Supplemental Order.Exhibits E.and F.
15. The DRB did not vote on the Modified Order,which addressed DRB
File No. 22889 for the property at 1201-1237 20th Street, Palau at Sunset Harbor.
Exhibit F.
16. The DRB voted on the Supplemental Order,which was properly
noticed to the public and as set forth in the agenda and the minutes.
17. And,the DRB could not vote on the Modified Order because that item
was not noticed to the public,neither was it on the agenda,nor was it the subject of
the staff report. Exhibit C,E and D. .
18. Yet the DRB Chair's designee.signed and recorded that Modified
Order.Exhibit I.
19. The DRB overlooked and did not consider the city's failure to provide
the required notice for the DRB hearing that resulted in the Modified Order.
20.. Furthermore, its approval of the Modified Order was without legal
authority because the approval lacked the required public notice,not properly
before the DRB, and therefore warrants a rehearing.
II. THE DRB DID NOT APPROVE THE MODIFIED ORDER.
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. 21. The DRB did not approve the Modified Order;which purportedly
• approved the two modifications to the 2012 DRB Order that would apply to .
properties at 1201-1237 20th Street.
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22. The official minutes of the July 2,.2019 DRB hearing.show that the
board only voted on one motion. Exhibit F.
23. The DRB-approved motion only applied to the Supplemental Order • •
"DRB 19-0392, 1201 20th Street—Palau Condominium Penthouse 04." Id:
24. The minutes of the meeting for agenda item 16 state in their entirety: •
"DRB 19-0392, 1201 20th Street—Palau Condominium Penthouse 04.
APPROVED w/Conditions .
. Motion to Approve w/Conditions -..-
Moved By: Sam Sheldon
Supported By::Marsh Kriplen
Ayes: Bodnar, Camargo, Delgado,Kriplen, Sheldon
• Absent: Steffens,Weinstein .
MOTION Passed" .
25. Therefore,DRB only approved the Supplemental Order and not the -
Modified Order,thereby warranting a rehearing to address the validity of the
Modified Order. . . •
III. THERE IS NO EVIDENCE IN THE RECORD THAT NON-
PENTHOUSE 4 PENTHOUSE OWNERS WHO WOULD BE
SUBJECT TO THE DELETION OF CONDITION B.4.0
APPLIED FOR THE.DELETION.
26. According to section 114-1 of the zoning code, an applicant is"any
person seeking to undertake any development as defined in this section."Exhibit K
27. According to section 114-1 of the zoning code, "Development means
the undertaking of any building or construction, including.. the making of any
material changes in the use or appearance of property or structures... or any other
action for which development approval is necessary."Id.
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28. There is no evidence in the record of the DRB hearing on DRB agenda
item 16,that a"person seeking to undertake any building or construction" or any -
other action sought the two modifications for the properties at 1201-1237 20th
• Street that the DRB purportedly approved through the Modified Order.
• 29. There is no evidence in the record that each penthouse owner other than
the owner of penthouse 4, applied for the modification of the.2012 DRB Order.
Exhibit B.
30. There is no evidence in the record that any penthouse owner other than
• the owner of penthouse 4 is a"person seeking to undertake any building or
construction ...for which development approval is necessary."
31. Only the owner of penthouse 4 provided plans as part of the application •
showing its proposed construction. And its application is the subject of the
Supplemental Order,not the Modified Order.
32. There is no individual penthouse owner claiming to be an applicant that • ---
meets the city's definition of"applicant"regarding the Modified Order.Therefore,
without any applicants seeking approval of the Modified Order, any DRB review
and approval of the Modified Order(for the property at"1201-1237 20th Street,
Palau at Sunset Harbor") is erroneous.
•
IV. THE DRB OVERLOOKED AND FAILED TO CONSIDER
THE CONDITIONAL USE BASIS FOR CONDITION
B.4.c.WHEN IT DELETED THAT PROVISION OF THE
2012 DRB FINAL ORDER .
•
33. Under Zoning Code Section 118-191,before the-DRB could consider
Palau's application for design review,the Miami Beach Planning Board had to
grant the Palau developer a conditional use permit to allow a 50,000 square-foot or
more mixed-use structure.Exhibit L. .
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. 34. On May 22, 2019,the Planning Board granted a conditional use permit
to 1201, 1225 & 1237 20th Street--Palau at Sunset Harbor. Exhibit M.
35. The Planning Board retained jurisdiction over the conditional use
permit through Condition 1 of the permit.Id.
36. Condition 2 of the permit requires future owners... "to appear before
the Board to affirm their understanding of the conditions listed:..:"_in the permit.
Id. • .
37. Condition 5 states: •
"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:
e. Reducing encroachment on the line of sight from Sunset Tsland 4.
."Id.
38: The applicant and DRB staff, in response to the Condition 5.e.,worked
together and made revisions to the Palau plans,to reduce "encroachment on the line
of sight from Sunset Island No. 4."Exhibit N. .
39. Specifically,the staff reported to the DRB that as to.Condition 5.e. of
the conditional use permit
"Staff believes that this condition is satisfied.In comparing the
north-south section line of sight diagram,the roof-top elements in the •
revised plans have 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. Further,the
'applicant has clarified that there is no internalconnection between the
top floor units fronting the waterway and the roof-top terraces. Staff
would also recommend that the Board not approve any roof-top
structures that are not specifically called out in the plans and
elevations provided."Exhibit K. (emphasis in original).
•
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40. The staff report-recommended that the DRB include.the following
proposed condition in an order approving the 2012 Palau design review
application: •
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, 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." Id. •
.
41. Following the recommendation of staff,the DRB.approved Palau's
plans and imposed condition B.4.c with minor changes:
"The roof-top, including any canopies, and stairwell or elevator .
bulkheads, shall be further developed and detailed to include anyand •
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."Exhibit A.
Condition•
B.4.c. is the onlyconditionthat implements the Planning .
42. P
Board's condition of its,conditional use approval. .
• 43. The deletion of condition B.4.c removes any response to the planning
board's condition to further modify the proposal to reduce the encroachment on the •
line of sight from Sunset Island 4. This renders the planning board's condition to
reduce line of sight encroachments meaningless because the only line of sight .
protection in the 20912 DRB Order has been deleted.
44. The planning board specifically retained jurisdiction over the
conditional use permit and required"subsequent owners" to appear to confirm their
Page 8of10 .
•
•
understanding of the conditional use permit conditions. This application to
eliminate condition B.4.c. by the owner of penthouse 4 of the Palau Condominium,
required planning board review because that request sought to eliminate the only
DRB condition to its 2012 Order that implemented planning board condition 5.e.,
which protects the line of sight from Sunset Island 4 from encroachment.
45. The record is silent as to any DRB member,DRB staff, city attorney or
applicant discussion on this matter at the July 2, 2019 hearing.
46. The DRB failed to consider this matter when it erroneously nullified a
conditional use permit condition which is under the jurisdiction of the planning
board.
V. THE DRB OVERLOOKED AND FAILED TO ADDRESS
HOW THE ELIMINATION OF CONDITION B.4.c.
COMPLIES WITH DESIGN REVIEW CRITERIA 6 and 7
REGARDING COMPATIBILITY.WHEN IT DELETED
THAT CONDITION OF THE 2012 DRB FINAL ORDER.
•
47. DRB review criteria in section 118-251(a)(6) (criteria 6) of the zoning
code requires that modifications to an existing structure shows a sensitivity to and
compatibility with adjacent structures and enhances the appearance of surrounding
properties. .
48. Section 118-251(a)(7) (criteria 7)requires that the design review
approval provides an efficient arrangement of land uses with particular attention to
pedestrian sight lines among other things. • •
S _.
49. There is no indication in the staff report, or the Supplemental or
Modified orders of the DRB that shows how the elimination of condition B.4.c. of
the 2012 DRB Order protects sight lines and shows sensitivity to and compatibility
with adjacent structures or surrounding properties.
I
•
•
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•
• 50. The failure of the board to apply correctly section 118-251(a) (6) and
. (7)warrants a rehearing.
51. The failure of the applicant to present evidence to the board that it
meets the specific requirements of section 118-251(a)warrants a rehearing
'WHEREFORE,Petitioners request that the Design Review Board grant the
• rehearing,take additional testimony and issue a new decision reversing or
modifying its previous decision regarding the modification of the 2012 order
approving the Palau at.Sunset Harbor project(DRB File No. 22889).
•
Respectfully Submitted, .
W. TUCKER GB3BS,ESQ.
Attorney for Petitioners
• Sunset Harbor 3 &4 Homeowners,Inc.,
and Terry Bienstock •
P.O.Box 1050 • • •
Coconut Grove,Florida 33133
Tel (305)448-8486
Fax(305)448-0773
Email: tucker@wtgibbs.com
By: AVG/MIA, •
W. TUCKER GIBBS
•
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