Document 1 of 4IcLereOfA c E Tu tJ
E wof t ii
l ct May en
xlamHonorableMayor
and
Commissioners JCityofMiamiBeachc
o Mr Jorge Gomez
Director c Planning and Zoning Department r
nConvention Center Drive r
MiamiBeach
Florida nm c l RE
Statement and Transcripts for Appeal of
Final OrderDRB
File No This is an appeal of a Design Review Board DRB Final
Order for File rendered March concerning a building design proposed for Alton Road by applicant
Alton Sobe L L c Applicant The appeal is taken jointly by Miami Design
Preservation League and by affected persons who own historic properties adjacent to the subject property
together referred to as Appellants Appellants seek reversal or remand for
modification of the DRB Final Order Statement prepared pro se not brief
prepared by legal counsel as per Sec a of the Code ofthe City
of Miami Beach City the Code I Standing A Miami Design Preservation League MDPL is specifically authorized to appeal
DRB decisions that adversely impact
historic preservation
Code Sec a gives MDPL specific authority to seek review of any
order of the design review board by the city commission MDPL is a
non profit organization whose mission is preserving protecting and promoting the cultural social economic environmental and
architectural integrity of the Miami Beach Architectural Historic District and all
other areas of the City of Miami Beach where historic
preservation isa concern MDPL s legislated standing enables it to appeal design proposals that
are not in a designated historic district but impact historic preservation interests This
right is distinct from the separate review process for historic properties which is governed by
the historic preservation board B The affected persons joining this appeal own
properties directly abutting the proposed design that are designated as contributing buildings
in the Architectural Historic District Code Sec aauthorizes appeal by affected persons
including those who own property within feet of the subject property or
who appear before the board The affected persons named in this appeal own properties
on the same block which properties were identified by city staff as being within feet
As noted on the record no alley separates the subject property on Alton Road
from historic properties on Lenox Avenue so the properties of several Appellants directly abut the subject
property and share a common boundary point or line
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE NoII Statement of
Facts The property subject
to this appeal islocated in a CD zoning district at Alton Road located on the east
side of Alton Road and bordering and story commercial buildings to the north and south
The rear ofthe property borders the RM l
Flamingo Park Historic District directly abutting four historic buildings that front onto Lenox Avenue
including two I story two story structures listed as contributing
buildings in the City s Historic Property Database The public notice and staff
reports advertised the proposal as a
story mixed use building but in fact the Applicant sought approval for a story building
with one level of parking underground The staff report prepared by the Planning Department
for the Design Review Meeting of
November identified of Design Review criteria that the project did not satisfy At
the Design Review Board meeting ofNovember the application was opposed at public
hearing by affected neighbors on
various grounds The Board voted to continue the project to the meeting of
February and asked the Applicant s representatives to meet with affected
neighbors as a group to seek compromise on an acceptable design On or about November
the Applicant demolished the existing buildings on the lots atAlton Road On
December at a meeting of the Flamingo Park
Neighborhood Committee at which the affected neighbors were represented the Applicant s
representatives presented the project with no changes other than
a increase in the rear setback At the December meeting the Flamingo Park
Neighborhood Committee voted to reject the proposal as inherently incompatible and
adopted a formal resolution asking the Miami Beach City Commission to support
down zoning within the
Historic District and to expand the down zoning to include the
Alton Road edge of the Historic District including elimination of a zoning
loophole that allowed additional density for mixed use projects Also at
the December meeting the Applicant s representatives proposed a second meeting before the
December holidays and despite scheduling conflicts with affected neighbors the facilitator for
Flamingo Park Neighborhood Committee agreed to convene afollow
up discussion on December On December the City Commission voted to refer the
Flamingo Park down zoning issues to the Planning Board
including the Historic District edge the east side of
Alton Road On December with no affected neighbors in attendance
the Applicant
s representatives presented three additional options for revising the PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE Noproject design to
the follow up meeting of the Flaming Park Neighborhood Committee On December
the
three new design options were emailed to affected neighbors by the facilitator of the
Flaming Park Neighborhood Committee On January Mark Needle emailed the
Applicant following discussions with other affected neighbors to request a follow
upmeeting on their behalf prior to the February hearing to address
the new design options and to propose further design improvements On or about
January the Applicant s representatives submitted
revised plans to the Planning Department which the affected neighbors requested from
the Design Review Board clerk and reviewed in advance of
the February meeting On January the Flamingo Park Neighborhood Committee and the Miami
Design Preservation
League s advocacy committee presented evidence to the Miami Beach Planning Board
regarding zoning incompatibility alongside the Flamingo Park Historic District
and the Planning Board requested that the City Planning
Department prepare legislation to commence zomng m progress On Feb
Mark Needle emailed the Applicant regarding the January request by
affected neighbors to
meet prior to the February hearing Also onFeb the affected neighbors requested in
writing a copy ofthe staff report from the Miami Beach Planning Department
and repeated this request by telephone on the morning of Feb but the report was
not provided until approximately PM on Feb The staff report prepared
by the Planning Department for theDesign Review Meeting of February identified of Design Review
criteria that the project did not satisfy
At some time prior to the Design Review meeting of February the Applicant
srepresentatives obtained a copy ofthe staff report and prepared complete sets of
revised building plans responding
to the Planning Department s recommended conditions At the Design Review Board meeting of February
newly revised plans were submitted to the Board which issued a decision
approving the project from which this appeal is taken PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENo II Preliminary Issues
Appellants seek to
protect the City s first historic district and the affected owners of contributing properties within
thehistoric district whose interests are adversely impacted by inappropriate development
in the commercial buffer zone along the district s edge This written statement
accompanying hearing transcripts isprovided by Appellants in lieu of briefs
by legal counsel as specifically permitted by the City Code Sec a Appellants are not
represented in this matter by legal counsel and will rely upon Miami Beach s interpretation of
its own zoning laws that were misapplied in reaching this Design Review Board decision
As athreshold issue Appellants
respectfully ask that the City Commission waive any fee for the present appeal Miami
Design Preservation League is a voluntary nonprofit organization specifically designated in the
Code to appeal Design Review Board decisions to the City Commission
as per Code Sec I a This designated legal process outside the boundaries of the Historic
Preservation Board is intended to permit the organization to raise matters of historic
importance to the attention of the City Commission Regardless of the outcome of appeal
imposition of a fee in this circumstance does not further the public interest
in fulfillment of this role III Grounds for Appeal Appellants contend that
each ofthe three
legal grounds stated in Code Sec b provides a sufficient basis to reverse or remand the
Final Order and that together these legal errors compel the commission to reverse the Final
Order and require substantial changes to theproposed design The DRB failed to
provide procedural due process when
it approved last minute design revisions and evidence which Appellants had no opportunity
to review and rebut Code Sections to provide a process for
the orderly design
review consideration of architectural drawings The procedural integrity of design review is especially significant when
there are serious objections to a project as in this case
raising issues as to whether revised drawings satisfy the design criteria The orderly process
is essential not only to protect the legal rights of the Applicant but
also those ofadversely affected parties The DRB process worked properly at the November hearing but the
process was circumvented
at the February hearing On November Appellants raised serious concerns about the proposed design
and the DRB acknowledged these concerns and emphasized the importance of working
with the community in an effort to resolve differences PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE No MR CHEVALIER I
would recommend that we don t even belabor extensive discussion on the
building itself given Ithink what needs to be done regardless of what the
applicant decides to propose I think they need to get with the community groups and
see this through as typically is the case when we have this kind of concern
MR STEFFENS You
got
a tough one here I think as Peter said you were really going to need
to meet with the community and get their feedback and see what you can incorporate
tomitigate some of the community sconcerns But besides all these
sort
of small items I think is the big sort of compatibility with the neighborhood directly behind
here It samajor issue and how you could address that with some changes
in massing is amajor concern ofmine MR NEVILLE Obviously as Mike stated
the big issue here is with your neighbors and how your building is
going to affect them MR STEFFENS I would move to continue
but I want tomake sure that the date it s continued to allows enough time
for Koby tomeet with the community s MR NEVILLE neighbors However the fair resolution
of issues
and the
rights of affected neighbors were adversely impacted by procedural tactics that circumvented the design
review process The violations outlined below are inherently unfair bypass procedural
safeguards in the Code and deprive Appellants of their due process rights
Notwithstanding other claims in this appeal the procedural violations alone require remand of
the decision to the DRB for proper consideration of the project All opposed Thank
you very much for working
with the a The Code requires completed architectural drawings to
be considered at the next available meeting date after the submission but
the plans considered on February were submitted only that same day
at the start of the DRB hearing There is no question that architectural drawings are
the
most significant evidence in a design review hearing The first sentence of Code Article
VI Design Review Procedures makes this explicit Design review encompasses the examination
ofarchitectural drawings for
consistency with the criteria stated below with regard to
the aesthetics appearances safety and function of any new or existing
structure and physical attributes of the project in relation tothe site
adjacent structures and surrounding community Sec a Transcript of Nov plines Transcript
of Nov p lines Transcript
of Nov plines Transcript of Nov p lines Transcript of
Nov p lines Transcript of Nov p line PAGE
ApPEAL OF FINAL ORDER MAy DESIGN REVIEW BOARD FILE NoThe Code makes
it clear that complete architectural drawings are required even before an item can be
set for public hearing When the application
is complete the planning department shall place the application on the
agenda and prepare a recommendation to the design review board T he
board shall consider the application and planning department recommendation at the
next available meeting date after the submission of a completed application to
the planning department Sec a emphasis supplied The requirement of submitting
revised
drawings before the hearing was acknowledged on Nov when there was discussion
of the next available meeting date following a Dec meeting with affected neighbors MS GRALIA
I believe that the their
neighborhood meeting is December the first Monday of December so if we
know what that isand I guess if maybe we can continue this I would imagine I
don t think we would make it in December so the January MR MOONEY Well I
don t think
you ll make it in January either because the submission deadline for the January rd meeting
would be the first week of December MS GRALIA So then we have
to
be moved over to February Thus as a practical matter as well
as a Code requirement under Sec a the revised application can only be deemed completed and set
for public hearing when the revised plans have submitted in a timely fashion before
the meeting The Feb hearing however did not consider the adequacy
of the completed application that was submitted in January Instead the Applicant handed
out to DRB members and planning staff a revised set of architectural drawings
As a procedural matter there issimply no basis inthe Code for last
minute submissions of design changes The only proper forum for evaluating architectural drawings is at
the next available meeting date after the submission of a completed application Sec
a The consideration of newly revised drawings in circumvention of this requirement violates
the plain language of the Code b The Applicant conceded the Code
requirement for advance submission of plans by
its own words and actions when it explained that the January
II submission date prevented consideration of changes requested by affected neighbors on January The
Applicant not only acknowledged the need for completed drawings
at the November meeting
as noted above but also emphasized the importance of this requirement at the
February hearing In fact the Applicant s attorney invoked this requirement when Transcript of
Nov p line p line Transcript of Feb p line PAGE
APPEAL OF FINAL ORDER MAy DESIGN REVIEW BOARD FILENoexplaining its rationale
for not meeting with affected neighbors or considering further design changes following
written requests on January and February MS GRALIA Now on the second meeting
that Mr Needle is talking about what occurred is that we have a
deadline January th we needed to submit our plans in order to behere today We
had no time to schedule another meeting with the neighbors because we had to redesign
this whole thing and submit it by January th So when I received a second
e mail sometime in February nd I believe February nd it had alreadybeensubmitted
We had I mean everything had been done Thus the Applicant specifically
cited and relied upon the
requirement of advance completed plans as a reason why it was infeasible
to meet with affected neighbors five weeks before the February hearing c Contrary to Applicant
s pOSItIOn that plans could
not be revised to accommodate affected neighbors the Applicant chose to revise the
plans just before the hearing date when eight of seventeen
design review criteria were deemed not satisfied in the Staff Report Applicant s
stated position regarding the January deadline stands in sharp
contrast to its position and actions immediately prior to February After receiving the formal
recommendations of the Planning Department the Applicant did indeed revise its design and
submit an entirely new set of architectural drawings The motives behind Applicant
s self contradictory interpretation of Code requirements are easily explained but the
strategy cannot withstand due process scrutiny Simply put the timely architectural
drawings submitted on January did not satisfy the
Code s design review criteria inthe view of either staff or affected neighbors
From the email of January see footnote above the Applicant was already aware that affected neighbors
would ask for further design changes in relationship to the historic district Appellant Mr Needle
sent an emai to Ms Gra ia on Jan to that began as
follows and went on to describe possible directions for acompatible design compromise Thank you for forwarding these proposed alternatives which show some
willingness to move away from the unacceptable option
presented at the December th Flamingo Park meeting Unfortunately the onset of holidays
was a bad time to try and reschedule aneighborhood meeting for further
dialogue Now that we have returned from our own holiday travels and schedules have returned to
normal Ihave spoken with a few people and feel that another meeting is justified and
should be scheduled I understand that the developer intends to submit another design next week in preparation for
the February DRB
meeting Ialsounderstandthat they would prefer tosettle this matter by the February meeting
in part because this might reduce parking requirements Regardless of any design submitted next week I
would like you to convey to the developer that the neighbors intend to
develop consensus on conditions that could allow for a true compromise at the February DRB meeting The
Feb emai confirmed that Appellants remained willing tomeet to discuss design revisions No response was
sent
by Applicant to either communication Transcript of Feb p line pline PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENo Shortly before the
February hearing the Applicant discovered that planning staff found the drawings tobe
unsatisfactory in regard to eight specific design review criteria nearly half of the seventeen
criteria ll Staff Report of Feb ppThe Applicant presented last minute drawings that conceded the recommendations of
staff intheir entirety in a transparent effort toavoid the possibility
of further design revisions requested by affected neighbors The Applicant s change of legal
position regarding plan revisions
served as a strategic effort to undermine the due process rights of Appellants One
Appellant objected to being steamrolled by the last minute revisions and disputed any
inference that the changes stemmed from the meeting with neighbors MR BROCK The
point isthat we want to try
and work with the architect and the attorney Iam the absolute most impacted by this
building The attorney has never contacted me Ihave emailed Iown a business
you know and I reside in the house That s the first issue The second
issue is now I see that they have
made some changes from the meeting that we did have but you could have given
it to us before we got here so we wouldn t be so you know steamrolled To say
Oh look you guys actually did do something but we did meet before and you
didn t do anything So that ssort of something I wanted to bring to the forefront
Indeed while the Applicant presented further revisions to the DRBthe
affected neighbors were never provided copies of the changes prior to or
during the hearing dThe City Code does not make an exception for minor
plan changes and even if it did revisions that purport to satisfy of design
review criteria could not beconsidered minor plan changes The Code does not provide an
exception for minor plan revisions Moreover even
if the Planning Department were to assert that revised plans should be accepted for
de minimis changes no such exception is justified in this case The logic for
permitting an exception is clearly circular for a plan that does not satisfy of design
review criteria either the staff recommendations to correct design criteria are major and thus the revised plans
should have been submitted in advance and made available for thorough public review or
the revisions were indeed minor and should not justify a change in findings
for of design review criteria Ifthe revisions are substantive they fall under the express
requirements of the Code e Depriving affected neighbors of the opportunity to review plan revisions especially
when the revisions were purported to
respond to their concerns Appellants contended that the application also failed
to satisfy other review criteria besides those noted in the staff
analysis including criteria related to orientation and massing Transcript of Feb p line pline PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENo and when substantive
errors are documented is a violation of their due process right to
rebut all evidence presented in relation to a specific plan As a result
of Applicant s actions Appellants found themselves in the untenable position of expressing opinions
and presenting evidence of design compatibility on a completely new set of
drawings that they had never seen The impact of the new plans skewed the hearing in significant
respects First itleft Appellants unable properly to review prepare evidence or rebut
effectively the impact of design revisions that they had never seen even though substantive
errors were demonstrated on both the November and the original February plans Second
the absence of commonly reviewed plans inherently tainted the DRB s consideration
of Appellants testimony and prejudiced its ability to evaluate objectively the weight
of testimony that contradicted theviews ofplanning staff iRight to
present and rebut evidence The legal significance of an orderly review of architectural drawings is
made clear in the Code section addressing the review of design review decisions The
review shall
be based on the record of the hearing before the design review board shall not
be a de novo hearing and no new additional testimony shall be taken Code Sec
a Formal Commission review and any
subsequent legal appeal are thus entirely dependent upon the record established at
public hearing For this reason the process establishes a critical safeguard to protect the
rights of all parties The design review board shall
consider each application at a public hearing at which the applicant and interested
persons shall have an opportunity to express their opinions present evidence and
rebut all evidence presented Code Sec a The right of affected neighbors
to persuade
DRB members or at least to establish a record for review is compromised by plans
that present a moving target A violation of the opportunity to rebut all evidence presented
thus deprives Appellants of their due process right to establish a complete record
for appeal The importance of this right is clear
from the hearing record where public scrutiny of the plans identified substantive errors inthe Applicant
s plans both inNovember and February In the DRB meeting of Nov
Appellants noted that the plans inaccurately described the rear setback requirement MR NEEDLE I
fyou were tofollow
the staffs recommendation and approve this subject to more conditions then satisfied
criteria then there certainly wouldn tbe any more opportunity to put
facts on the record And I think if you look at the CD zoning you will see
the requirement for a rear setback if feet when abutting a residential district They have represented on here
that it is five feet
Staff has said that because of the historic district and because of you know whatever other
concerns we should go beyond that OK But it s is the
minimum They re asking you to PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE Noput another variance
but they ve not shown that They have actually represented mistakenly this and
other issues MR NEVILLE You ve
pointed out that you feel that the setbacks are greater than what he has
shown But in our staff report there is no there is no variances required for this So
I am wondering what s what s MR MOONEY The only
variance that technically would be required would be for the Mr Needle
is correct and that is the rear setback Likewise in the plans submitted
in January for the February meeting fundamental errors were identified as tohow
much Floor Area Ratio was being requested MR NEEDLE There are other
reasons for making for deferring this matter Foronethe square foot
assertions that I saw I haven t seen the latest that you were just given of changes
that were made but what I did see showed me that on one page the square footage
added up to and it wasn t as it said on one page or as it said on another page
S Additional inaccuracies on the revised plans as noted below infra p
were criticized by one DRB member with an admonition that goes to the
heart of Appellant s compatibility issues MS LUCE I f we were being asked to
look at
once again compatibility having a photo montage from this perspective that does not in
fact reflect that perspective is not entirely helpful for determining the compatibility So I
m just saying it puts your building in a
different light having it against a background of other fairly large buildings that might not in fact
be perceived from this vantage point Whether the DRB was approving square feet
p A O lor
square feet p A which floor levels calculations were incorrect on the chart showing square feet p A and
whether the Applicant s plans were fully accurate regarding context were all substantive errors proving the
importance of public review and scrutiny of the revised plans Appellants were deprived ofthe opportunity
to note other possible discrepancies since the revised plans were not made available until
after the hearing ii Inherent unfairness of un reviewed plans As a
practical matter the impact of the last minute plan substitution goes beyond specific
errors or omissions in the unreviewed plan and the Appellants ability to prepare and
present evidence on specific plans In short theexistence ofnew plans changed the
subject of the hearing in the minds of DRB members instead of evaluating the
need to bring back revised plans on a design that Transcript of Nov p line p line
Transcript of Nov p lines According to the staff analysis the application submitted in advance
of the November DRB meeting failed to satisfy of design review criteria Appellants were
proved correct incontending that the application also failed to satisfy other criteria besides those noted in the staff
analysis including the undisclosed violation of criteria related to minimum setbacks Transcript of Feb pline p line
Transcript of Feb plines PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENo failed at least
of review criteria the issue became whether the staffs proposed revisions were adequate to bring
the building into compliance Appellants were inherently disadvantaged in addressing this
narrower topic since they did nothave the plans and had prepared evidence
based on the properly submitted plans The absence of acommon plan for evaluation caused
afundamental tilting of the playing field and is reflected in confusion at the
outset ofthe DRB board s final deliberation For the public the disappearance
of the original plan led to an inherent implication that any design objections might no
longer be as relevant if they were targeting a plan that no longer existed This suggestion of
misdirected criticism is apparent from the first question by the DRB Chair
MR NEVILLE Mark I appreciate
that you put in a lot of time and effort into your presentation I just wanted
to make sure that since you didn tget these drawings ahead of time is
your understanding of their setback s feet from the rear and then after stories from
the rear to the tower Is that what you guys have MR NEEDLE The setbacks they didn t
answer our
January th or February nd communications so thisisthe first time Im
seeing it So it s MR NEVILLE Well they just handed it out today
but I didn tknow I don tknow if that was your understanding or MR CAREY
We provided you with the Staff Report
which indicated that we were recommending a foot setback rear setback as well
as increased side setback MR NEEDLE Iknew that the Staff was recommending
a
foot setback I asked for the Staff Report last week I didn t get
it until yesterday at Ive read through most of it And the foot is an improvement over what
was there before in the November hearing it was feet But theissue is it s
still giving its full massing for the entire story
block it needs to be stepped back and away it needs to be pushed forward to Alton Road
through variance and this is just not a design that is compatible The design itself is
incompatible with the historic neighborhood it s creating a wall effect The suggestion that public
testimony of incompatibility was grounded inerror was made explicit during the testimony
of another affected neighbor who noted that from across the street the historic
neighborhood would be hit by the impact of the building The DRB Chair again
outlined the proposed setbacks and wrongly suggested that there was a persistent misconception MR NEVILLE
I don t know where the misconception is that there s aand
it never
was a flat story or four story building whatever it was MS COTTER And I
know that it s not a flat one MR NEVILLE It was closer to
you Transcript of Feb plines PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENoMS COTTER But
it was just still it sthe massive size When I stand on this side of Lenox and
look in that direction this is big I mean it s not Mirador big but it s big
And to me it s actually shocking In fact no evidence of
a so called misconception regarding tower setbacks appears in any ofthe public testimony
on the record Not only was public testimony
disadvantaged the last minute plan revisions but staff recommendations were unfairly advantaged Because
the Applicant adopted staff recommendations that were not reviewed
in advance and publicly scrutinized by the public public testimony was not
focused on the narrow question of whether staff recommendations were adequate to cure
the original plan s defects The uncertainty created by the plan revision
isclearly manifested by the first DRB member to speak out after the close of public
hearing who began to object to the project on the basis of the unsatisfied design review criteria MS
GRANT HYMAN Idon
t know Kobe you still don t seem to get it And especially number and are
not satisfied Only issues of the criteria that they need to meet have been satisfied MR
KARP No more have been satisfied since we
have provided the additional setbacks MS GRANT HYMAN No not according to what
I
see MR KARP for the project Right and what we
did is took the staff comments and provided the additional setback The DRB member was
essentially asked to discount testimony regarding
design incompatibility and to assume that the staff s recommendations had
solved the issues This DRB member failed to press further objections regarding compatibility
though she maintained that the plan remained unsatisfied as to several other
criteria This confusion at the outset of final deliberations isrevealing
for it is rooted in the variation between the revised plans and the staff s written
report Had the plans been properly submitted the public could have presented evidence not only
on the broad issues ofmassing incompatibility but also focused on the narrow ultimately
decisive issue whether staffs recommended setback changes an additional to on only
the lower two floors were adequate to remedy of review criteria and bring the
project into compatibility with the historic district Absent this fundamental debate public calls for further design
modifications were treated as discretionary but this and other DRB members were
hesitant to pursue them Transcript of Feb p lines Transcript of Feb p
lines reacting tophoto montage depicting the
view from the historic district Transcript of Feb p lines For
example one DRB member addressed the potential to reduce th floor massing in tentative terms PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REvIEW BOARD FILENofDue process
violations also occurred by the Applicant s last minute visual evidence by the
failure of the Planning Department to supply Appellants with key staff
recommendations until the last possible moment and by adefect of the
public notice The fundamental procedural
disadvantage to Appellants was compounded by several other due process
irregularities Taken together these issues reinforce the fact that the rights of Appellants
were undermined by failures in the DRB process First like the
last minute plans the Applicant presented the DRB with key evidence of its design change only
after most of the affected neighbors had completed their testimony over one hour
into the hearing The evidence included an artistic photo montage purporting to represent
an accurate perspective of the massing as it faces the Flamingo Park Historic District
This visual perspective was presented as evidence on the critical issue of design
compatibility but its accuracy or lack thereof was never subjected to scrutiny A photo
montage
is an inherently creative product subject to human error combining two or more
images in amanner intended to create the impression of photo realistic accuracy There is
no evidence on the record regarding whether or not the image was a fair representation as
it was never made available to Appellants and was presented only inresponse to
DRB queries late in the hearing In fact the photo montage was never properly entered on
the record and was not included inthe last minute plan revisions that were available in
the Applicant s DRB file following the rendering of the final DRB order As such
it was an error of process and a derogation of Appellants rights for such evidence to have
been presented as it was on the key issue of compatibility A second prejudicial
error was the disparate treatment of Applicant and Appellants by the Planning Department in
advance of the hearing It is plainly apparent that the Planning Department s staff
report or at least the substance of its findings was made available to Applicant with
sufficient time to create an entirely new set of architectural drawings As noted on
record however Appellants were not afforded the same opportunity to review findings and
found out about a key recommendation less than hours before MR CAREY We provided
you with the staff report which indicated that we were recommending a foot
setback rear setback as well as increased side setback MS LUCE The other
question
Iwonder if people on this Board think that there is any point in examining some a little bit
more of rearranging of the massing involving reducing the size of the double story restaurant to alleviate
what is the impact onthe neighbors in the back Is there anything to be gained from
that PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE NoMR NEEDLE I
knew that the staff was recommending a foot setback I asked for the staff
report last week Ididn t get it until yesterday at The relevance of this disparity is beyond
dispute since the essential characteristic of the revised plans is compliance with recommendations in
the staff report At a time when Applicants were revising complete sets of professional
drawings Appellants were not even informed about the new recommendations until
theevening before the hearing fourdays after aformal written request Finally
a procedural error noted onthe
record is a defect in the public notice MR NEEDLE Another error that I believe
is a technical but substantive error for the record isthat this project
is not advertised as a story project but in factit is stories One story is underground The
notice simply says a story building It doesn t tell you that there is also
an underground level which it will be pointed out later has an impact as well in
the neighborhood This appeal does not raise the issue of drainage asa
design review issue though underground parking may adversely affect already severe local flooding instead Appellants
reserve their rights to ensure that rainwater accommodation is addressed
at asubsequent stage of theCity permitting process Nonetheless the notice defect
concerns a substantive element of the proposal and provides additional grounds for
remanding the project this time with sufficient time toaddress the revised plans
and rebut assertions that new and setbacks address the design review requirements Transcript of
Feb plines Appellants have supplemental evidence regarding the procedural irregularity in
the form of emai correspondences with the DRB clerk on Thursday February and two follow up emai
son Monday February Transcript of Feb p lines PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE NoThe DRB failed
to base its decision upon substantial competent evidence ignoring expert and publictestimonyofdesignincompatibilityandrelyinginsteadonnonconformingbuildingsandinadequateormisleadingevidenceAppellantsbelievethattheDRBmisappliedtheCityszoninglawsbutindependentofthiserrortheDRBalsofailedtobaseitsdecisionuponsubstantialandcompetentevidenceInparticulartherewasinadequateevidencetosupportafindingofcompatibilitywiththeadjacenthistoricdistrictwhichisaddressedinseveraldesignreviewcriteriaincludingthefollowingTheproposedstructureand
or additions or modifications to an existing structure indicates asensitivity toandiscompatiblewiththeenvironmentandadjacentstructuresandenhancestheappearanceofthesurroundingpropertiesSecTwocriticalevidentiaryfailuresdirectlyimpactedthe
reasoning and decision of the board First the DRB disregarded multiple sourcesofexpertevidenceregardingthecompatibilityofinfillinrelationtocontributinghistoricarchitectureSecondincounteringthisevidencetheDRBandinsteadreliedupontheexistenceofnonconformingbuildingsthatareinappropriateforevaluatingsensitivitytoandcompatibilitywiththecontributinghistoricpropertiesthatinfactabuttheproposalaAsitrelatestothehistoric
district and adiacent contributing properties there is insufficient evidence to support a findingthattheproposedstructureiscompatiblewiththeenvironmentandadiacentstructuresandenhancestheappearanceofthesurroundingpropertiesMostnotable
in the record on the
issue ofcompatibility is what is missing There is no clear fmding by the DRB that theproposedprojectisindeedcompatiblewiththeenvironmentandadjacentstructuresandtherecordissimplydevoidofanyevidencethattheprojectenhancestheappearanceofthesurroundingcontributinghistoricbuildingsWhiletherearesuchfindingsregardingtheAltonRoadsideoftheprojectthelackofsuchfindingsinrelationtothehistoricdistrictisclearlyreflectedintheconcludingcommentsofDRBmembersevenastheyvotedtoapprovetheprojectOneDRBmemberastutelycharacterizedtheproject
as a tale of two buildings that presents a horror show to the historicneighborhoodMSREDFERNButrightnowits
it is what everybody said it s sort of a tale of two buildings where we have anditsachallengeforyoureallybecauseyouhavetheAltonRoadsideand
then you have the Flamingo historic neighborhood side And I think that youneedtopayalittlemoreattentiontoeachsideandwhateachsidemeanstothepeoplewhouseitAnditsgoingtobetwoseparatesetsofpeoplewhointeractwitheachsideofthestreetTheAltonRoadhopefullymorepedestrianswilluseitWhenwedrivebythereandwewenttherethisweekendImeanitsthatsectionofAltonRoadcertainlycoulduseamoreactivationandIthink
that a mixed use project is is an asset to itPAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE No But from the
backside it s it s a horror show to those neighbors And even thoughyourbuilding
doesn t rise tothe level of these story monster buildings that are going up
on Collins Ave when you think about it in scale tothe little tiny bungalow and the little
one story Henry Hohauser building in its backyard it is sort of daunting to
them A second DRB member noted
the lack of accurate context drawings and concluded that the evidence as presented by
Applicant was deficient MS LUCE First of all
I just I m sorry to be so get so laborious with this thing today but this is
context partially but I m hoping that we llall educate ourselves to know from the
Applicant s point of view and from the Board s point of view that actually context
is always going to be a perspective of the building in the neighborhood from the
street And I think that we don t have that entirely presented to us in this
project Inother words if
you were if we were being asked to look at once again compatibility having a photo montage
from this perspective that does not in fact reflect that perspective is not
entirely helpful for determining the compatibility S Ms Luce went on to
note that we do look at what is considered the B side of abuilding And in this case
it s very important because you do have aan impact on the neighbors Two other DRB members
concurred as to the rear ofthe project in almost identical words MR DAVID I really
think that
that needs a lot of work MR NEVILLE I t really needsa
lot ofwork And the fifth DRB member as noted earlier
believed that the project still did not did not meet multiple design criteria until disputed by the
Applicant see comments of Ms Hyman Grant at footnote above bThe Design
Review Board failed toaddress directly
relevant evidence from the City s Historic Preservation and Planning Boards the
Miami Design Preservation League and the public By contrast there was
anabundance of expert evidence
and public testimony suggesting that the height and FAR sought by the Applicant
present insurmountable compatibility issues Virtually no effort was made to dispute or
distinguish the findings of the City s own Historic Preservation and Planning Boards statements of rebuttal
took the form of pointing out setbacks and down playing the negative effects
in both the November and February hearings MR NEVILLE I just want topoint
out to
you that it s not as drastic as you might ve though it was Transcript of Feb p
line pline Transcript of Feb
p lines p lines emphasis added Transcript of Feb p lines Transcript of Feb
p line Transcript of Feb p line PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENoMR NEVILLE I
don t think that this is going to cause the downfall of the neighborhood in any
way I think that s a little bit overstated And don tblame anybody for coming forward
in fact Im glad that they did because if they didn t we would ve approved
probably the one last time which would have really been a disaster inhindsight According
to this view the
difference between disaster in November and compatibility in February is basically
a foot increase in setback for both pedestal and tower Such statements and views
simply do not rebut theevidence and logic ofthe substantial and competent evidence to the contrary
iHistoricPreservation Board findings regarding incompatible
infill A unanimous resolution of the Historic Preservation HP Board
addressing the incompatibility of infill development adjacent to historic structures was
summarized by Appellants in the November meeting MRNEEDLE The issue
iscompatibility This
five story high building is not compatible with the location Although the current zoning
allows for this height and FAR Iquestion whether it is really
appropriate to build this property out to its maximum height and FAR The CD zoning
along Alton can allow compatible
commercial development which is FAR and it is comparable to the
in the historic district However the HP Board Historic Preservation Board hasunanimously agreed after its joint
meeting with the Planning Board that this kind of infill
is inappropriate for the historic district And that is why they have decreased the
height to I believe feet they have decreased the FAR to and that
issue needs to come forward for the city to decide but it is unanimous from the historic
preservation point of view that this kind of building is incompatible And further they are taking
advantage of the opportunity to use the RM Zoning which let
s them balloon an extra square feet of development and go up to which
creates still greater contextual problems No evidence was presented to rebut the down zoning proposal by the
HP Board or tosuggest that the same
dynamics did not apply to infill at the edge of the historic district The clear implication
is that infill incompatible to historic buildings would be equally so regardless of which side of the
property they are located on iPlanning Board findings regarding incompatible maximum zoning limits
Evidence from Planning Board discussion on January was presented in the
February DRB meeting Also presented was information from the City
s Historic Property Database showing the prevalence of and story historic buildings abutting the
subject Transcript of Nov p lines Transcript of Feb p line While there
were changes to balconies and a foot reduction in height the main changes were
an increase in rear setback from to feet for two levels
and underground and from to feet for three upper levels PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE No property and other
portions of the Flamingo Historic District The unanimous comments from the Planning
Board were transcribed and entered into the record as expert testimony supporting Appellants
contention that the mixed use FAR loophole and proposed massing is
inherently incompatible with low rise contributing historic buildings In short
Planning Board members agreed with the comments of the Chair DIAZ I don
t think reasonable people can disagree that the CD RM bonus is wholly incompatible with
the adjacent zoning I wanted to highlight that
I think there are areas where reasonable people can disagree and Ithink there
are areas that are just black and white but I think we do need to move this process
forward At aminimum the Planning Board
s general view of zoning incompatibility established a prima facie case orpresumption regarding
the potential for incompatibility between the Applicant s design proposal and the
adjoining historic district It was incumbent on the DRB not to dismiss the Planning
Board s comments out of hand but instead toevaluate the specific circumstances of massing in
light of design review criteria iii Miami Design Preservation League and public
testimony The record also includes a great deal of testimony of incompatibility about
the particular attributes of this project in relation to its specific adjacent historic structures
These considered views included the Advocacy Committee for the voluntary historic preservation
organization charged with protecting Flamingo Park Historic District MS BRIGHAM
Wernet extensively and discussed this
at some length You don thave to allow everybodyto
build out to their FAR You know they may be allowed to have FAR of point of
but you don t have to grant them that if it iscompletely incompatible which is one of the most important
things for the DRB to look at Ithink to protect the asset
that we have Virtually all members of the public as well as all
residents who submitted individual emails spoke out against incompatibility in the two hearings the
sole exception was a district resident who admitted to being a paid employee of
the Applicant s architeces The critiques presented were detailed and insightful MR ZAID The
problem with this building isthat it
doesn t relate to what s around it and we keep shifting this and shifting that
and talking about measurements but the fact is that it s incompatible with
its neighbors The materials are wrong they don t relate in any way
to the buildings around them The scale is wrong we ve talked about that plenty
The profile ofthe building is Emphasis added This testimony and the Historic Property Database aerial
correlation are provided as anattachment to this statement See discussion between Mr Neville and Mr
Needle transcript of Feb
pp Transcript ofFeb p line plines Transcript ofFeb p line Appellants strongly dispute the
relevance ofadditional evidence provided by Mr Salazar who gathered signatures from neighbors supporting a
mixed use infill project but did not disclose his role as project architect he described himself as a
member of the Board of Directors for his condominium and did not disclose impacts of
the project to historic buildings but instead drew attention to extraneous issues egit will have aminimal impact
on traffic PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE Noblocky and Erica
mentioned perhaps breaking the building up so that it doesn t look like such
a big mass of boring repeated elements Im sure
these people can work out something that works better for the city for the neighbors and
even for the people in the project And I get
the feeling that everybody is so stuck in their tracks that they were talking about little
measurements rather than awhole aesthetic thing And really somehow the building
needs to relate better to its neighbors And I think that s the essence of
the discomfort that everybody isfeeling You can thelp and look at that building
without feeling that the neighborhood is being impinged on OK and that
is somebody who lives inthe neighborhood I m not going to be directly affected by
this building but I just feel this chewing away at our beautiful beautiful Art
Deco district It s piece by piece it s like a quilt that s being moth eaten
And I know that we can build beautiful and wonderful buildings and it
just needs a little more effort and alittle more insight and alittle more seeing this
building from the outside in rather than as a planning solution that meets all
the laws Members of the public
recognized and spoke with eloquence of the need for extensive scrutiny for the first
edge project of its type One example will suffice MS COTTER And I
think we have something incredibly special to preserve inour little area and
people come from throughout the world just to be here If you travel outside this area
and you come back home you just sit there and say Thank God Barbera Capitman
fought so hard to save this Because we dhave alot of that And
it isreally
important this is the turning point This is it This is the point that we can make
a huge difference and I think it s very important not to just leap to stuff Let s
really consider this because this will be here and here and here and it will go
all the way down And that it would be tragic And besides asking for height
and massing be reformed members of the public proposed various specific changes to make
the project better at least relatively even without reducing FAR For instance Appellants
noted that approximately square feet of massing was displaced to the upper floor
by an expansion of the commercial space between the November and February meetings double
height ceilings created internal volume that does not count against FAR
This criticism and other testimony such as breaking up or stepping the mass was
not refuted or analyzed but was given too little consideration in the DRB discussion c In
determining compatibility with historic buildings
the DRB improperly relied on evidence of non conforming buildings
in the historic district Rather than address the project s full
design impact on adjacent properties the DRB erred as amatter of logic by relying
upon the Applicant s documentation of non contributing buildings in the historic district to justify
excessive and uniform height and massing of Transcript of Feb p line p line
Transcript ofFeb p lines PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE No upper floors In
citing the existence of legally non conforming buildings as evidence of historic compatibility the
DRB was in reality defining sensitivity to the historic district by reference to
its non historic exceptions Non conforming buildings precede not only the historic district
but the design review criteria and by definition would not be permitted to be
built today As a result the DRB members disregarded testimony calling formodification of
height or massing of upper floors The Applicant acknowledged
the importance of context yet created avariety of visual evidence that emphasized the
existence of non conforming buildings Appellants refuted both the logic and
accuracy of the Applicant s rogue s gallery of references MR NEEDLE The developer
showed us in that meeting and it s now part of your package an alternative
way of looking atthings which is which is topoint at all the nonconforming
non historic buildings the ones that were not part of the historic district and to
show those as the scale by which new development should be measured REFERS TO
DISPLAY This to us is really more of a rogue sgallery of what we
don t want to be building towards the exceptions that we don twant to contribute towards
additional exceptions It s not where we think the measure should be at
all It s also inaccurate It s showing that there is aten a seven story building at
the corner of th St and Alton which is incorrect it s at the corner of th
St The truest measure of compatibility
is the adjacent buildings not those in other blocks Nonetheless to the extent that
the DRB should look for evidence of compatibility beyond the abutting properties itwas
improper to use as ameasure those buildings that preceded thehistoric district and exceed
its current FAR and height limits dEven if the non
conforming buildings were permissible as evidence of compatibility which Appellants vigorously dispute
the record shows that context evidence supplied by the
Applicant was deficient and misleading In the November hearing the
evidence of neighborhood context was grossly defective Indeed the plans did not
even note the existence of an abutting historic district and it was pointed out by Appellants
that this lack of context made the application incomplete oThe plans also did not
note that the historic properties abutting the site are without even the separation normally afforded by
a public alley More than one DRB member expressed complete unawareness that the project
would have such an impact on the rear See transcript of Feb p line
MR KARP Ithink it s important That s why we took
attention to make this Board and provide with context and materials of buildings which are in the neighborhood not only
the immediate neighborhood which are on th and th but also further away And that
swhy we also made it part of the record here to show you what the context is Transcript of Feb plines Where
these land development regulations require the
submittal ofsite plans such site plans shall show Existing zoning
and zoning district boundaries Code Sec a See eg transcript of Feb p line the
DRB must protect the historic district because you re touching it You don tsee it because the
site plan is incomplete in so many ways PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENoand one even
noted that he had been under the impression that the project was on the west side of
Alton Road For the February hearing
the Applicant created new context documents whose accuracy was disputed and found
erroneous at various points on the record Besides the mis located non conforming building
on an aerial map above at footnote one DRB member questioned the veracity of
aphoto montage that was supplied MS LUCE I guess my
question is and we could all go there tomorrow and stand right here and look
east and I m just asking you before we all do that make that little trek tomorrow
if in fact this is somewhat of a creative mise enscene or if in fact
one sees those massings from that vantage point today MR KARP You can see
them but again itsnot from the street She concluded by gaining an
admission from Applicant that some context evidence though purporting to represent an
actual photo montage was in fact a composite of actual perspective plus higher scale buildings
that could not be seen from this perspective MS LUCE I m just
saying that it is a little bit in other words if youwere if we were being asked to
look at once again compatibility having a photo montage from this perspective that
does not in fact reflect that perspective is not entirely helpful for determining the
compatibility MR KARP Yes that is
correct and that s why we didn ttake it as a photo montage So you are right
it is a rendering and that s why we took astep further and provided the real panoramics
from the top of th Street and also the whole block MS LUCE OK MR
KARP
So you are
right it is a rendering it is not a photo montage like the back elevation is MS LUCE
So Im
just saying it puts your building in a different light having it against a background of other
fairly large buildings that might not in fact be perceived from this vantage point
That s why Ijust keep coming back with Idon tknow I think
it would be really good to finally arrive at some sort of standards for renderings and what
isexpected in terms of packages The use oflarger scale buildings
is thus not only inappropriate as a matter of law but the evidence presented in the hearing was
inherently deficient and misleading eRelevant evidence cited by DRB
members after the conclusion of public hearing is not supported in the
record Rather than deliberate whether the project
was in compliance with compatibility criteria the DRB generally assumed that compatibility
would be addressed if Applicant agreed to meet the conditions proposed by the
Planning Staff Some DRB members however E g transcript of Nov p
line Transcript of Feb plines emphasis added PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENo sought to justify
the project by statements that were not supported by the actual record For example one
DRB member sought to justify approval by suggesting that the Applicant had made
significant concessions in an effort to improve compatibility MR LEFTON As
I look at this feet this small change in the feet is going to completely turn the parking
scheme upside down I don thow they re going to fix it but Im
sure they re going to fix it It seems like a little bit butit s going to be a big deal for
them as best I can tell So I think they re not totally happy but are willing to move forward
and make it work for the neighbors The claim is easily disproven as
site plans submitted by Applicant show the reality behind the increased setback required parking
dropped from in November to in February due to a change in legal requirements
While Applicant had claimed parking difficulties at the start of the November hearing
there was no evidence of any such difficulties in February Indeed it is precisely because
parking was no longer a concern that Applicant reduced the nd level garage and created
the contested square feet of double height for the restaurant Other misleading suggestions concerned the impact
of height One DRB member
disregarded the HP Board resolution to lower infill height and density
and erroneously suggested that infill within the district could be basically the same
height MR DAVID I s there a new building a four or
five story residential building at is itth and Lenox MR KARP Yes there is
That s correct on the corner
MR DAVID So it s abrand it s not occupied
yet or is it MR KARP Not yet MR DAVID So it s close but
is basically the same
height of I m sorry MR NEEDLE AUDIENCE feet MR DAVID It s five stories or
four MR NEEDLE AUDIENCE MR
DAVID Four UNKNOWN No MR NEEDLE AUDIENCE Four
there s a foot
height limit MR
DAVID OK
but it s a new building that s what I m
getting at S Another DRB member even went so far as to suggest that there was little
difference in impact between atwo and five story building For Appellants as for the Historic
Transcript of February p lines Ironically this DRB member was not present at the November
meeting Transcript of February p line p line E g transcript
of Feb p lines PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENo Preservation Board the
differences between and feet or between and feet are significant in relation to one and
two story historic buildings The DRB failed to observe essential requirements
of law by allowing a mixed use design that exceeds maximum commercial density
without properly addressing the impact of additional density on design
compatibility relative to abutting historic properties The DRB has the power
and duty t
o review all applications requiring design review approval for all properties not located within a
designated historic district or not designated as a historic site Code Sec As
the record makes clear however the subject property in this DRB proposal is distinctive in
that it directly abuts the Flamingo Park Historic District in a lh block deep buffer
zone along Alton Road The design review criteria must therefore be interpreted in a manner
that respects the essential nature and character of the adjacent historic district on a
block of Lenox Avenue consisting entirely of and story buildings designated as contributing architectural
designs in the City s Historic Database In exercising its review the
DRB misinterpreted the design criteria and failed
in its duty to address the impact of the design on the essential character of
the adjacent historic district and the unique design considerations of adjacent historic buildings As a
result the DRB allowed maximum height and massing when these were not justified
a The Miami Beach Code was correctly interpreted by theCity Attorney
who suggested that the Miami Beach review criteria may require projects to reduce
FAR height or massing if they donot satisfy compatibility requirements Appellants
adopt the view of the Miami Beach Code suggested by the
Assistant City Attorney and believe that the same criteria and reasoning that apply to
historic review inside the historic district also apply to design review of historic properties
outside the district The reasonableness of such an interpretation was first discussed in the
November hearing MR HELD We recently went through an exercise with the
HP Board
that clarified their authority to require projects to reduce FAR where it s
not where they don tsatisfy the HP Board criteria And I was just
reviewing the DRB criteria which includes compatibility requirements And I don tthink it has
actually been determined that this Board does not have authority where it
concludes that a project is not compatible that they cannot be asked
toreduce to MR NEVILLE Ifit was a two story building it would be
the same thing That you still have atwo story building feet away from you it s the same thing There would
be no difference if itwas a two story building you d still have a twostory PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE No make it compatible
And that is something that we can discuss and report back to the board on
but it may be possible that this board does have authority to do that MR NEVILLE I
m simply referring to and Idon t remember where I read these articles but I
try to keep up on these things when I read them maybe in architectural magazine or
somewhere And I my memory and obviously you are the Assistant
City Attorney you probably are more up on this than I am but I think I ve
read about lawsuits where it s been established that the developer has the right to
build what is allowed in the zoning code and not be required to downsize because of
neighborhood opposition or MR HELD Well
I wouldn t conclude that just because it happened in one jurisdiction that it
s required in all jurisdictions I mean we have very strong design review criteria
and HP criteria and it may be that the way our code is written it does
allow it It does not mean that we might not be subject to some lawsuit or a
legal challenge but that is something that would have to be reviewed and determined to
see whether it s appropriate here Appellants believe that this
view isinevitable given that the same interests implicated in Historic Preservation Board review
are addressed in Design Review Board review for developments adjacent to the
historic district It is clear from this
view as pointed out in February that FAR and height below the maximum may be required if
the various compatibility criteria are not satisfied MR HELD Ifthe gentleman
s done So just to be clear and we had this discussion with the HP Board
over the last year as well with a project coming before them this board does
have certain discretion with respect to issues that arise out of the compatibility
of projects that are proposed with the existing built environment And there are at
least three design criteria in the code that address that specifically the sensitivity to
and relationship to and compatibility with surrounding structures So its
notentirely
a question of height and FAR that s been zoned this board does have some discretion to look
at those issues And it s it s your job when an application is presented to satisfy
your self that those criteria are satisfied And it may be that in this
case based upon this section that s been presented that you are satisfied that it s been
addressed and the issues that are being raised are really Transcript of Nov p line
p line See id At lines MR NEEDLE Can I make one important comment
on this point sir That is by
being in an historic district we are committed forever to maintain this scale and in these specific buildings In
the past in other places you have allowed five story next to one story and the rationale has been
well in the future they are going to develop this one story willgo and they will be able to the
predominant characteristic will be five stories The reason that massing and compatibility were put in asaresult of the
same issues thatwe faced years ago was because these things are essential to historic district preservation They are directly
related to the essence of what a historic district is and this cannot be more irnpactfu
so you are really exercising the responsibility ofthe DRB in protecting the historic district because you re touching it
You must determine that if the massing is too much and it needs to be reduced in
order to protect Miami Beach s first historic district That s what s different about this PAGE
APPEAL OF FINAL ORDER MAy DESIGN REVIEW BOARD FILE Noother issues that
need to be addressed either by the Planning Board or to the Commission in the
ordinance as a whole So I just
wanted to clarify that that you re not bound by height and FAR as set in the code those
are let s say those are aspirations if a project is compatible and sensitive However as
explained below
the DRB chose to exercise a different legal standard b The DRB resisted
the City s interpretation of its own design review criteria and espoused an alternative
legal theory biased against the compatibility rights of adjacent historic
property owners that disregards compatibility criteria when they are
in conflict with maximum height and FAR TheDRB s alternate
legal views were most forcefully articulated by the Chair who made clear his disagreement with
the City Attorney s office in both the November and February meetings Although not
alawyer none of the DRB members are lawyers he suggested in November that
his support for maximum zoning regardless of design criteria is a matter
of both fairness and law MR NEVILLE Another thing
that s not fair and I m not trying to be confrontational because Ido
sympathize with all of you and if I lived there I would have the same
reaction but if the applicant is complying with the zoning rules then we re
powerless to tell him to downsize his project And Ithink even court cases have demonstrated
that sa futile effort If the zoning code allows him to build such a
height or such a setback or such amount of FAR then they are allowed to do that
And the courts have upheld those kind of things And believe me there have been
lawsuits in the past in different areas of the country where that has happened You know
shading shading from a building whatever so Later in the same
hearing he clarified that his resistance to the advice of the Assistant City Attorney was based
on afeeling MR NEVILLE Personally I
am sympathetic but I don t even though Gary mentioned that it really
isn t that necessary but I still have this strong feeling that if zoning is
allowed and you know and the city planners have set up a zoning district that the
applicant should be allowed to build up tothat extent S Similar comments were made
at the February meeting in response to a suggestion by Appellants that the DRB
call for further changes MR NEEDLE They are
nice people by the way I don t have any problem with them I just don
t think there s any incentive to make changes in their building at this point unless you
direct them to make them or unless the Planning Board creates the overlay environment
MR NEVILLE Yeah I
don t think we can direct them Im not surethe DRB has the purview to
come and say to theCity and to that project we can t approve Transcript of Feb p
so Transcript of Nov p lines Transcript
of Nov plines PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE Noyou because we
agree with you that this zoning district allows for too large of abuilding Well you
know I m not sure if that s something we could do And if we did do
it I m sure if that wouldn t spur a lawsuit by all the people who went and bought property
on that road thinking that the zoning district allows them tobuild x amount
of square footage or x amount of height where you know now the City
s own Design Review Board says no no no you can t build that As noted
by
Appellants it is equally true that the property owners in historic districts bought and invested
in renovations thinking that the surrounding infill development would be compatible
with their historic structures S In highlighting the
incompatibility of maximum zoning Appellants were accused at several points of
raising issues solely of zoning rather than specific design review issues impacted by zoning
Ironically however in one of those exchanges it was the DRB Chair who admitted
that his views of compatibility criteria were entirely subject to the maximum zoning in
adistrict MR NEVILLE Again
you re getting to the zoning district I don t know how we can protect
you when the zoning district allows that size of a building to be built Imean
MR NEEDLE I
think at this point if you don t if the majority of the Board doesn t feel
that that extra FAR is inherently incompatible then Ithink that you should just examine
it from a design standpoint and just decide is this massed properly and most
sensitively for the Historic District Do we want to let them take the parking
savings and use it to have a nicer restaurant and displace that square feet to
affect our historic neighborhood Those are the design considerations What you can decide
is that this design isincompatible MR NEVILLE Well yeah that
s what we re here to do to debate the design of the building If it s
it s one thing if it s violating all the zoning restrictions like some of the applicants do
that gives us some teeth But when it doesn t it becomes a little bit more
difficult and it s nearly impossible to say no that building cannot take place and
it needs to be stories and it needs to be you know like feet S Under this
view compatibility criteria must be
discounted as unnecessary to approve aproject or must bedeemed satisfied by
any relative design improvements regardless ofoverwhelming evidence to the contrary Such a
position isinconsistent with the City s position on compatibility with historic properties under
the Historic Preservation Board and cannot be allowed to stand in
regard to historic properties impacted by Design Review applications See transcript of Feb p
lines NEEDLE
This amount of massing just doesn twork adjacent to these we
should be protected by you because we are historic properties We have given up our rights to build
this We gave up our rights by being in the historic district which as Ive showed you is and
district wide it sstory over and story That context needs to be protected What we have instead what we have instead
is this massing which is times the size of my historic bungalow architecture where Ilive Transcript ofFeb p
lines PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE No c Several DRB
members endorsed the legal theory of maximum zoning but revealed self contradictory
conclusions signifying that compatibility criteria were not in
fact satisfied but they did not follow the advice of City counsel Absent real deliberation
of the evidence for compatibility individual DRB members chose to follow
the DRB Chair s strong feeling to allow maximum zoning Yet by honestly admitting their
inner discomfort with the maximum zoning several DRB members arrived at
self contradictory conclusions Thus one member acknowledged that the project
as a horror show for the adjoining historic properties yet voted to approve the design
s Another member articulated afeeling ofbeing conflicted MR LEFTON And
I m conflicted a little bit here but I recognize that this developer has development
rights and Ithink that they ve actually done a good job on a
very challenging site Any time you re dealing with this notion of a transition it s
difficult It s difficult and I think as a lot of people have been saying not everybody
s going to be completely happy So Iam
supportive of it I would also be supportive of moving forward to amend the Code and
close whatever this loophole may be in the appropriate fashion But whatever it
may be this exists today I think that this project has moved forward with good
faith in the envelope that they ve been given And so I m going to be
in favor of this project with those with those conditionsss The support to
amend the Code and reduce the FAR maximum by from tois an implicit concession that the project was
incompatible but that development rights must trump that provision of the Code Yet
property rights extend to those impacted by incompatible development and the compatibility criteria exist today
just as plainly in the City Code d Based on the evidence
in this case
Appellants contend that it isinherently unlawful under the Miami Beach Code to exceed
the CD maximum FAR without clear and convincing evidence of design compatibility While
the City counsel did not address this question
on record Appellants contend that the ability to circumvent the CD maximum FAR is
a loophole in the Code and that its use is not a matter of absolute right but should
be subject to specific design review criteria The subject property is located in a CD commercial
medium intensity district See fu supra The DRB member went on tosuggest a
further revision of massing MS REDFERN And the example I think ofwhere itmight work to
the opposite is that building on Collins Avenue almost to the property line of the beach where on the
Collins Avenue side it s stepped back very nicely but when you look atit from Harding it s
just this massive wall Maybe if you could take that and turn it around and putmore of the mass to the
Alton Road side and make the mass so its not such an imposing structure to the neighborhood Transcript of February p lines Even the
DRB Chair expressed a belief that
FAR should be reduced albeit not by the DRB and while allowing for mixed use projects MR NEVILLE Isympathize
with the neighbors and Ido hope that the zoning got changed but I also
agree with Gabriella that Ithink Alton Road could really use projects like this mixed use projects where there
s arestaurant or shops or something on the ground floor and people living above Transcript of February
plines PAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENowhose development regulations
specify amaximum Floor Area Ratio FAR of Code Sec For mixed use
buildings however a setback provision allows maximum FAR to be determined under a
separate section of the Code the RM regulations which permits an FAR of Code Sec
d Sec The property is adjacent to an RM llow intensity residential district with a maximum
FAR of Code Sec and the directly adjoining properties are contributing historic structures with an
actual FAR ofless than An Applicant s proposal to develop a mixed use building if
approved results in a increase in density versus the commercial maximum versus and an FAR over
even the highest legal density in the adjacent historic district versus Because amixed
use CD application effectively bypasses the maximum FAR for CD the DRB is obligated to determine
whether a proposed mixed use and FAR bonus is consistentwith
the design review criteria The Applicant in this case proposed amixed use building
with approximately square feet more than acommercial building in the same location along with the
commensurate additional parking Before approving an FAR increase for mixed use projects adjacent to
low rise contributing historic buildings the DRB should have made a clear and specific
finding based on all available evidence that the increased use and density
is appropriate in this location Conclusion The undersigned respectfully ask the City Commission
to reverse the decision of the DRB to eliminate the use of the mixed use
FAR loophole as incorporated in this design and to remand the
proposal
with instructions to evaluate specific ways that massing and heigh e com t
D development regulations By Bill Farkas Executive Director Miami Design Preservation League MDPL Submitted on behalf
of Arthur Marcus AlA Chair MDPL Advocacy Committee Allison Cotter Owner Lenox Avenue
Carol Jacque Owner Lenox Avenue Mark Needle Owner
Lenox Avenue
Andrew Delaplaine Owner Lenox
Avenue Kelly Brock Owner Lenox
Charles Recher Owner Lenox
Avenue Jean Luc Blackburn
Owner Lenox PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILENo ATTACHMENT CITY OF
MIAMI BEACH PLANNING BOARD MEETING OFJAN Compatibility ofCD RM bonus with
adjacent historic properties NB The summary below and Board discussion
thatfollows wereformally entered into the record ofthe Design
Review Board File Idon t think reasonable people can disagree
that the CD RM bonus is wholly incompatible with the adjacent zoningBoard Chair emphasis in original
remarks I think we cannot
allow them to build the monstrosity
that you are talking about Board Member I think that
the character of Alton Road
needs tobe
preserved by all means Board Member I agree
that we definitely need to minimize the
scale and retain
more ofa street level scale on Alton Road and
that that or story possibility on Alton Road is very dangerous and I
wouldn t want to see that Board Member I wanted to highlight
that I think there are areas where reasonable
people candisagree
and think there are areas that are just black and
white Ithink we do need to move
this process forward so we can have zoning in
progress as quickly as possible Board Chair I totally support
the intent of what the commentary has been Board Member ImoveBoard
Member Second Board Member OK that s unanimous Board Chair PAGE
ApPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE NoTranscription of Planning
Board Comments Alton Road CD
Zoning in Relation to the RM lHistoricDistrict City of Miami Beach
Planning Board meeting of Jan Verbatim Board discussion following close of
public discussion from pm NB commentsrelated tothe adjoining RM l zoning district
are abridged Victor Diaz Chair I think that reasonable people can disagree
about the scope of reform needed for two downzoning issues within the RM l
historic district I don tthink reasonable people can disagree that the
CD RM bonus is wholly incompatible with the adjacent zoning I think that when you look at
these boxes that Mark prepared it shows you an incompatibility which is not only detrimental
tothe adjoining single family neighborhood its detrimental to Alton Road Idon
t think that we want to see someone made the point I don tthink
we want to see story mixed use buildings lining Alton Road I think Alton Road is essentially a commercial
corridor and it should be a commercial corridor and encourage development consistent with that
and a scale consistent with that Iam prepared personally togo with
every single recommendation that the Flamingo
Park neighborhood and the Historic Preservation Board went with Iam on board with
the two RM lissues and Iam totally on board with moving forward
with taking the height on that Alton Road corridor just taking it tothe CD and eliminating
the RM loophole altogether and considering whether it needs to be taken further within that I wanted to
highlight that Ithink there are areas where reasonable people can disagree
and Ithink there are areas that are just black and white but Ithink
we do need to move this process forward Ican understand if people don t want to go with downzoning
reforms within the RM l and I can understand if people don t want to
go down to CD l on the Alton Road corridor but I think that in order to solve the problem
what we need to do is bring give the staff some guidance bring some regulations to the next meeting
bring the more restrictive regulations unless there is absolutely no support so that then we
have the ability toliberalize them at the public hearing and have a public hearing
give everybody an opportunity tobe heard and take action so we can have zoning in
progress as quickly as possible Discussion with City Attorney about legal impact of advertising more liberal
or more restrictive zoning
That s my feeling on it Roberto Roberto Sanchez Expresses disagreement on scope
ofreforms
within RM ldistrict We really have
to be reasonable and Ithink that onthe Alton Road corridor
I think that IPAGE
APPEAL OF FINAL ORDER MAY DESIGN REVIEW BOARD FILE Noagree with that
I think we cannot allow them tobuild the monstrosity that you are talking about and
Im in favor of doing that Diaz So you
re in favor of doing everything except one of the two RM lreforms OK how do
other board members feel Jorge Kuperman I
m in favor of that too I think that the character of Alton Road needs tobepreserved
by all means Expresses agreement with only one oftwo RM l reforms Cathy Leff
The
character of Alton Road You were saying the character of Alton Road Diaz Yes
he
s saying to address the CD zoning and RM phole and address one oftheRM
issues Marlo Courtney First off I
think that we have to do everything we can to preserve this fabulous Flamingo district Expresses agreement
with both RM reforms As far as the CD I agree that we
definitely need to minimize the scale and retain more of astreet level scale on Alton Road and
that that or story possibility on Alton Road is very dangerous and Iwouldn twant to see
that Diaz OK so we ve got so far this
is why and we can keep going around but my feeling is we re not taking final action on
this This is a workshop discusses rationale for considering all issues at full hearing Ill
entertain amotion that we ask stafftobringatthe next meeting aset ofregulations in
order to address the three issues including both RM lissuesand eliminating the RM loophole
and addressing the height on Alton Again you may want to go to CD you
may want to go toCD lor whatever staff wants to recommend but the Board is giving you definite
guidance that we wantthe RM phole eliminated at a minimum and if you want to
bring other suggestions forward you doso at the next meeting Are you OK
with that George OK Leff I just want to ask a question I mean I
totally support the intent of what the commentary has been My only question is regard to one ofthe
RM lissues Followed by discussion of this issue Joy Malakoff I move Diaz The
motion has been made by
Joy is there a
second Leff Second Diaz Seconded by Cathy All in favor please indicate
by saying
aye Ayes spoken Opposed OK that s unanimous PAGE