R7A-Granting Or Denying DRB Appeal 1 Washington Avenue - S Pointe ParkCOMMISSION ITEM SUMMARY
Condensed Title:
A public hearing to consider the appeal of the Design Review Board Order in File No. 22894 pertaining to the
property located at 1 Washington Avenue -South Pointe Park and a Resolution setting forth an order
[granting or denying] the appeal.
Key Intended Outcome Supported:
Increase community satisfaction with recreational programs
Supporting Data (Surveys, Environmental Scan, etc.): Miami Beach Customer Survey results indicate 84.9%
of residents rated the City's recreation programs either excellent or good.
Issue:
I Following the public hearing, shall the Mayor and City Commission grant or deny the appeal?
Item Summary/Recommendation:
PUBLIC HEARING
This matter was originally set for a public hearing on the May 9, 2012 City Commission Agenda -
Item No. R-7 A. The public hearing was opened and a motion was made by Vice-Mayor Libbin to
continue the ORB appeal hearing to the June 6, 2012 City Commission meeting.
At the direction of the City Commission at its January 11, 2012 meeting, the City Administration, through the
Parks and Recreation Department, submitted an application to the Design Review Board (ORB) for their
review of the placement of a hedge at one of three suggested locations at South Pointe Park, to help better
delineate the designated off-leash dog area there. The ORB considered this application at their March 6,
2012 meeting. Their order was subsequently issued on March 13, 2012, denying the administration's request
for a hedge.
At the March 21 , 2012, City Commission meeting, the Commission directed the administration to appeal the !'
ORB's Order. Pursuant to City Code Section 118-262, the City Manager of the City of Miami Beach, Florida;'
timely filed an appeal, thereby requesting the City Commission's review of the Design Review Board decision
rendered on March 13, 2012 (ORB File No. 22894) pertaining to the requested design review approval for a
hedge for a City Commission-designated off-leash dog area within South Pointe Park.
At the April 11, 2012 meeting, the Mayor and City Commission set the public hearing for May 9, 2012 to
review the appeal of the Design Review Board Order pertaining to ORB File No. 22894 - 1 Washington
Avenue-South Pointe Park.
Advisory Board Recommendation:
Financial Information:
Source of
Funds:
City Clerk's Office Legislative Tracking:
Si n-Offs:
Departmentll>irect&r
IAMIBEACH
385
AGENDA ITEM _R_7....;;_A __
DATE G.-b-I 'Z..
(9 MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
TO:
FROM:
DATE:
SUBJECT:
COMMISSION MEMORANDUM
Mayor Matti Herrera Bower and Members of the City Commission
Jorge M. Gonzalez, City Manage()~
June 6, 2012 () (_) PUBLIC HEARING
A PUBLIC HEARING TO CONSIDER THE APPEAL OF THE DESIGN
REVIEW BOARD ORDER IN FILE NO. 22894 PERTAINING TO THE
PROPERTY LOCATED AT 1 WASHINGTON AVENUE-SOUTH POINTE
PARK; AND
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA SETTING FORTH AN ORDER
[GRANTING OR DENYING] AN APPEAL REQUEST FILED BY THE CITY
MANAGER OF THE CITY OF MIAMI BEACH, ON BEHALF OF THE CITY
ADMINISTRATION, PERTAINING TO A DECISION OF THE DESIGN
REVIEW BOARD ("ORB") FOR THE PROPERTY LOCATED AT 1
WASHINGTON AVENUE-SOUTH POINTE PARK (FILE NO. 22894).
STATUS OF ORB APPEAL
This matter was originally set for a public hearing on the May 9, 2012 City Commission Agenda
-Item No. R-7 A. The public hearing was opened and a motion was made by Vice-Mayor
Libbin to continue the DRB appeal hearing to the June 6, 2012 City Commission meeting. The
motion was seconded by Commissioner Exposito and passed by a voice vote of 6-1, with
Commissioner Wolfson opposing the motion.
BACKGROUND
Following January 11, 2012 City Commission discussion of the designated off-leash program at
South Pointe Park, the City Commission directed the Administration to submit an application to
the Design Review Board requesting their consideration of the proposed placement of a hedge
in one of three possible locations for the designated off-leash area in South Pointe Park.
On or about February 2, 2012, the City of Miami Beach Parks and Recreation Department
submitted an application to the Design Review Board ("ORB") for design review approval of a
small, low growing native hedge to define the boundaries of the off-leash area delineated by the
City Commission within South Pointe Park. In its ORB application, the Administration proposed
three alternate plans where the off-leash dog area with a hedge could be located within South
Pointe Park. Proposed Areas 1 and 2 are located to the east of the Washington Avenue Plaza
and south of the walkway that follows the berm. Area No. 1 is approximately 18,000. sq. feet
(.41 acres) and Area 2, which includes Area 1, is approximately 34,000.00 sq. feet(. 78 acres).
Area 3 is the area surrounding the lighthouse sculpture at the south and west end of the Park
and is approximately 18,000 feet (.41 acres).
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June 6, 2011
City Commission Meeting
Commission Memorandum-ORB File No. 22894, Appeal, 1 Washington Avenue, South Pointe Park.
On March 6, 2012, the ORB held a hearing on the Administration's application and on March 13,
2012, it rendered an Order imposing conditions that effectively denied the Administration's
request for a hedge by stating "there shall be no hedge to define the area" and the off-leash
area "shall not be located in area #3, surrounding the arts in public places 'lighthouse project'."
On March 21, 2012, the City Commission discussed an item referred by Commissioner Libbin
regarding the ORB Order (agenda item R9F). The City Commission subsequently approved a
motion directing the City Manager to file an appeal of the ORB order.
Pursuant to City Code Section 118-262, the City Manager, at the request of the City
Commission, timely requested a review of the Design Review Board decision rendered on
March 13, 2012 (ORB File No. 22894). On April 11, 2012, the City Commission set a public
hearing for May 9, 2012 to review the decision of the ORB (agenda item C70).
Pursuant to Section 118-262( a) of the Miami Beach Code, the review by the City Commission is
not a "de novo" hearing. It must be based upon the record of the hearing before the Design
Review Board and no new additional testimony shall be taken. Furthermore, Section 118-262
(b) states the following:
In order to reverse, or remand for amendment, modification or rehearing any decision of the
Design Review Board, the City Commission shall find that the Design Review Board did not do
one of the following:
1) provide procedural due process;
2) observe essential requirements of Jaw; or
3) base its decision upon substantial competent evidence.
In order to reverse or remand a decision of the Design Review Board, a 5/th vote of the City
Commission is required.
Section 118-262(a) requires the appellant to file with the City Clerk a written transcript of the
hearing before the Design Review Board and a written statement. The transcript and City
Manager's written statement were filed with the City Clerk and transmitted to the Mayor and City
Commission on March 25, 2012.
ANALYSIS
The grounds for the City Manager's appeal are that the ORB did not observe the essential
requirements of law and did not base its decision upon substantial competent evidence. The
analysis relative to these grounds for appeal is set forth in the City Manager's written statement,
which was provided to the Mayor and Commission under separate cover.
CONCLUSION
The Administration recommends that the continued public hearing be held to review the
decision of the Design Review Board pertaining to ORB File No. 22894 1 Washington Avenue -
South Pointe Park.
JMG/HMF/KS
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RESOLUTION NO.-----
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA SETTING FORTH AN ORDER [GRANTING
OR DENYING] AN APPEAL REQUEST FILED BY THE CITY MANAGER
OF THE CITY OF MIAMI BEACH, ON BEHALF OF THE CITY
ADMINISTRATION, PERTAINING TO A DECISION OF THE DESIGN
REVIEW BOARD ("ORB") FOR THE PROPERTY LOCATED AT 1
WASHINGTON AVENUE-SOUTH POINTE PARK (FILE NO. 22894).
WHEREAS, a process for review by the Mayor and City Commission of decisions
rendered by the Design Review Board, when requested by an applicant or any affected person,
has been established under Section 118-262 of the Miami Beach City Code; and
WHEREAS, the City Commission directed the City administration to submit an
application for the installation of a hedge location in one of three potential City Commission-
designated off-leash dog area within South Pointe Park (ORB File No. 22894, 1 Washington
Avenue -South Pointe Park); and
WHEREAS, on or about February 2, 2012, the City of Miami Beach Parks and
Recreation Department submitted an application to the Design Review Board for design review
approval of a small, low growing native hedge to define the boundaries of the off-leash area
delineated by the City Commission within South Pointe Park; and
WHEREAS, the Administration proposed three alternate plans for an off-leash dog area
within South Pointe Park in its ORB application. Proposed Areas 1 and 2 are located to the east
of the Washington Avenue Plaza and south of the walkway that follows the berm. Area No. 1 is
approximately 18,000. sq. feet (.41 acres) and Area 2, which includes Area 1, is approximately
34,000.00 sq. feet (. 78 acres). Area 3 is the area surrounding the lighthouse sculpture at the
south and west end of the Park and is approximately 18,000 feet (.41 acres); and
WHEREAS, on March 13, 2012, the Design Review Board entered an Order granting
the Administration's application, but denying the request of the City Administration for a
proposed hedge for the off-leash dog area within South Pointe Park and further stating that no
off-leash dog area shall be located in Area 3; and
WHEREAS, on March 21, 2012, the City Commission directed the City Manager to
appeal the ORB order; and
WHEREAS, pursuant to Miami Beach City Code Section 118-262, the City Manager on
behalf of the City Administration timely requested a review of the Design Review Board decision
rendered on March 13, 2012 in ORB File No. 22894; and
WHEREAS, pursuant to Section 118-262(a), the review by the City Commission is not a
"de novo" hearing; it must be based on the record of the hearing before the Design Review
Board; and no new, additional testimony shall be taken; and
388
WHEREAS, Section 118-262(b) provides that: in order to reverse, or remand for
amendment, modification or rehearing any decision of the Design Review Board, the City shall
find that the Design Review Board did not do one of the following; 1) provide procedural due
process; 2) observe essential requirements of the law, or 3) base it decision upon substantial,
competent evidence; and
WHEREAS, in order to reverse or remand a decision of the Design Review Board, a
5/th vote of the City Commission is required; and
WHEREAS, Section 118-262(a) requires an appellant to file with the City Clerk a written
transcript of the hearing before the Design Review Board and a written statement or brief two
weeks before the scheduled public hearing on the appeal; and the transcript and the City
Manager's written statement were timely filed with the City Clerk and transmitted to the Mayor
and City Commission by the City Clerk; and
WHEREAS, on April 11, 2012, the City Commission set the hearing for this appeal to be
held on May 9, 2012, and the City Clerk noticed such hearing; and
WHEREAS, on May 9, 2012, the City Commission opened the hearing, considered
preliminary arguments by the parties, and continued the hearing on the appeal to June 6, 2012;
and
WHEREAS, on June 6, 2012, at the continued hearing on the appeal, the City
Commission heard the parties, and pursuant to the arguments made, the record of the hearing
before the Design Review Board, the written statements submitted, and having been duly
advised in the premises, determined that the March 13, 2012 decision of the Design Review
Board did not concern a denial of due process, [but did I and did not] result in a departure from
the essential requirements of law, [and/or] a decision that was not based upon substantial
competent evidence; and
WHEREAS, on June 6, 2012, a motion was made by the City Commission to [grant or
deny] the appeal of City Manager Jorge M. Gonzalez, on behalf of the City Administration,
relative to the Design Review Board Order rendered March 13, 2012 pertaining to DRB File No.
22894, 1 Washington Avenue -South Pointe Park; and
WHEREAS, the motion to [affirm I reverse] the decision of the Design Review Board
was made and seconded, and approved by a vote of ___ _
NOW, THEREFORE, BE IT DULY RESOLVED AND ORDERED BY the Mayor and City
Commission of the City of Miami Beach as follows:
389
ORDER
The Order of the Design Review Board dated March 13, 2012 regarding File No.
22894 pertaining to the property located at 1 Washington Avenue -South Pointe
Park is hereby:
[Affirmed;
Reversed;
And/or Modified as follows:
PASSED and ADOPTED this----day of June, 2012.
ATTEST:
RAFAEL E. GRANADO
CITY CLERK
MATTI HERRERA BOWER
MAYOR
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390
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Gary Held, First Assistant City Attorney
CC: Jose Smith, City Attorney
Jorge M. Gonzalez, City Manager
DATE: May 9, 2012
SUBJECT: ORB File No. 22894, Appeal, 1 Washington Avenue, South Pointe Park
This appeal filed by the City Manager, as directed by the City Commission on March 21,
2012, challenges the Design Review Board's ("ORB") decision rendered March 13,2012 that (1) no
off-leash dog area be located in South Pointe Park in Area 3 -the location of the Lighthouse Art in
Public Places sculpture; and (2) that no hedge be used to delineate any off-leash dog area
designated in the Park. The ORB's decision should be affirmed.
THE ORB ORDER
The ORB Order granted the City's application for an off-leash dog area in the Park, subject
to the following condition:
B. The Design Review Board does not support any off-leash dog area within
the boundaries of South Pointe Park. However, if the Commission determines
that it is appropriate and necessary to create an off-leash area in South Pointe
Park, the Board determines the following:
1. There shall be no hedge to define the area.
2. It shall not be located in area #3, surrounding the art in public
places "lighthouse" project.
ARGUMENT
1. The ORB is expressly delegated authority to impose conditions based upon the
Design Review Criteria, and thus the condition excluding Area #3 is consistent with
the essential requirements of law.
The appeal asserts that the ORB exceeded its jurisdiction by excluding area #3 from
consideration for the off-leash dog area.
The ORB has the authority to rearrange or direct the location of uses in a structure or on a
391
Memorandum to Mayor Bower and Members of the City Commission
Re: ORB File No. 22894, Appeal, 1 Washington Avenue, South Pointe Park.
Date: May 9, 2012
Page 2 of 5
property in an application before it. Such a decision is inherent in design review.
Design review encompasses the examination of architectural 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 to the site, adjacent structures and surrounding
community.
Section 118-251, City Code.
The ORB is expressly authorized pursuant to Section 118-254( c) of the City Code, to impose
the challenged condition:
The board may require such changes in the plans and specifications, and
conditions, as in its judgment may be requisite and appropriate to the
maintenance of a high standard of architecture, as established by the
standards contained in these land development regulations and as specified in
the city's comprehensive plan and other specific plans adopted by the city of
pertaining to the areas identified in subsection 118-252(a).
Section 118-254(c), City Code (bold added).
The Design Review Criteria specifically refers to the design and layout of a site plan of the
property in an application before it.
(7) The design and layout of the proposed site plan, as well as all new and existing
buildings shall be reviewed so as to provide an efficient arrangement of land uses.
Particular attention shall be given to safety, crime prevention and fire protection,
relationship to the surrounding neighborhood, impact on contiguous and adjacent
buildings and lands, pedestrian sight lines and view corridors.
Section 118-251, City Code.
Through its approval of the application, the ORB acknowledged that the City Commission
had authority to allow an off-leash dog area in the Park. This challenged condition, however, is
within the scope of the jurisdiction of the Board, based upon Sections 118-254(c) and Design
Review Criterion (7). This was acknowledged by the Planning Director in Staff's written
recommendation, and the testimony of Planning Staff at the hearing before it.
The law is well settled that "[a]dministrative agencies have the authority to interpret the laws
which they administer .... " Abramson v. Fla. Psychological Ass'n, 634 So.2d 610, 612 (Fla. 1994).
392
Memorandum to Mayor Bower and Members of the City Commission
Re: ORB File No. 22894, Appeal, 1 Washington Avenue, South Pointe Park.
Date: May 9, 2012
Page 3 of 5
Moreover, like other agencies, a municipal agency's "interpretation of the guidelines that it is
charged with administrating is entitled to judicial deference, and should not be overturned as long as
the interpretation is in the range of permissible interpretations." See At/. Shores Resort v. 507 S. St.
Corp., 937 So.2d 1239, 1245 (Fla. 3d DCA 2006) (holding that the Historic Architectural Review
Commission's determination that a building did not violate its guidelines was within the range of
permissible interpretations and, thus, should not be overturned by the court).
The DRS Staff Report for March 6, 2012, (Exhibit "C" to the Appeal) included a strong
recommendation against using Area #3 as an off-leash dog area:
/d. at 5.
Staff does, however, strongly recommend against Area #3 surrounding the Art in
Public Places (AiPP) sculpture known as the "Obstinate Lighthouse" for the
proposed off-leash dog area, for the following reasons: 1) it would be inconsistent
with the South Pointe Park master planned location for the AiPP sculpture previously
approved by the Design Review Board; 2) any form of perimeter landscaping
material or additional park signage in this location would distract from and have a
significant adverse impact upon the design integrity of the lighthouse sculpture as
well as its open lawn setting, and: 3) this location could limit the close enjoyment of
the AiPP lighthouse sculpture to only people, including young children, who are
comfortable being around dogs that are off-leash.
At the hearing, Planning Department Assistant Director William Cary testified:
Staff obviously believes that's the worst possible option, because you really-
even though the dog park is only going to be, you know, during certain hours of the
day, the off-leash dog area, we just don't feel it would be at all appropriate to, you
know, place a dog park, off-leash dog park necessarily around a public art piece, ....
Transcript of DRS hearing, March 6, 2012, at 6.
Further, the staff report included as Recommended Condition No. 1.a.:
a. Area #3, the area surrounding the Art in Public Places sculpture, shall not be
permitted.
By including this recommended condition in its staff report, the Planning Director had determined
that it was within the jurisdiction of the DRS to impose the condition.
As the Board exercised its authority under the City Code to impose the condition, it applied
the correct law, and was therefore in compliance with the essential requirements of law. Dusseau v.
393
Memorandum to Mayor Bower and Members of the City Commission
Re: DRB File No. 22894, Appeal, 1 Washington Avenue, South Pointe Park.
Date: May 9, 2012
Page 4 of 5
Metropolitan Dade County, 794 So.2d 1270, 1274 (Fla. 2001).
2. Florida law on competent substantial evidence requires the City Commission to recognize
the record below contains sufficient evidence to support the ORB's decision.
The appeal asserts that the DRS's decision to deny the use of a hedge was not supported by
substantial competent evidence.
The Commission should find, in accord with well settled Florida law, that the DRS's decision
was based on substantial competent evidence in the form of staff testimony at the hearing,
accompanied by other materials in the record. City of Hialeah Gardens v. Miami-Dade Charter
Foundation, Inc., 857 So.2d 202, 204-05 (Fla. 3d DCA 2003) ("the Chief of Police, the Director of
Public Works, and the Chief Zoning Official, gave specific fact-based reasons for their
recommendations that the application be rejected."); Metropolitan Dade County v. Sportacres
Development Group, 698 So.2d 281, 282 (Fla. 3d DCA 1997) ("maps, reports and other information
which, in conjunction with the testimony of the neighbors, if believed by the Commission, constituted
competent substantial evidence."); Dade County v. United Resources, Inc., 374 So.2d 1046, 1050
(Fla. 3d DCA 1979) ("recommendations of professional staff'); Norwood-Nor/and Homeowner's
Ass'n v. Dade County, 511 So.2d 1009, 1013 (Fla. 3d DCA 1987) ("Dade County Development
Impact Committee report"); Metropolitan Dade Countyv. Fuller, 515 So.2d 1312, 1314 (Fla. 3d DCA
1987) ("staff recommendations").
In this case on appeal before the City Commission, after an eloquent explanation of the
history of the design of the very unique South Pointe Park, Transcript of hearing at 3-5, William Cary
states:
[O]bviously staff's preference would be to have no hedge, whatever, because we
don't want to create another design element in the park, which was literally intended
to be, you know, very simple and smooth and straightforward, so all the things that
happen around the park are what really make the park, you know, such an executory
experience, and so we're not recommending, we're not saying, yes, go, ahead and
approve a hedge.
What we're saying is that if the Parks Department finds that in order to delineate the
394
Memorandum to Mayor Bower and Members of the City Commission
Re: ORB File No. 22894, Appeal, 1 Washington Avenue, South Pointe Park.
Date: May 9, 2012
Page 5 of 5
area for the off-leash dog area, if it's necessary to do that so that owners of dogs
know the area that they're limited to, that's something that they can do in the future, if
they wish to do it.
Transcript of hearing, at 7-8.
Thus, there is substantial competent evidence in the record to support the Board's decision
that there should be no hedge to delineate the off-leash dog area in South Pointe Park, if any.
CONCLUSION
Based upon the foregoing, the City Commission should affirm the decision of the Design
Review Board, and deny the appeal.
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