R7F-Appoint __________ To Serve As Special Master On Appeal Of 42 Star Island DrCOMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Approving And Appointing, Pursuant To Sections 142-1 08(G)(3) And 118-537(B) Of The
Miami Beach City Code, , To Serve As Special Master, On The Appeal Of "In Re: 42 Star
Island Drive", Case No. HPSM-13-001, ORB File No. 22936.
Key Intended Outcome Supported:
Protect Historic Building Stock.
Supporting Data (Surveys, Environmental Scan, etc.): In the 2012 Community Satisfaction Survey
78% of the residents who had sufficient knowledge about historic preservation gave it positive ratings; and
82% of business owners rated the City of Miami Beach's historic preservation efforts as very or somewhat
effective.
Item Summary/Recommendation:
On March 26, 2013, the Miami Design Preservation League, Inc., (MDPL), through its attorney Kent
Harrison Robbins, filed an appeal of the March 6, 2013 ORB Order on File No. 22936, approving the
Application for Design Review Approval for the construction of a new 2-story home, to replace an existing
home constructed prior to 1942, to be demolished, at 42 Star Island Drive. Section 142-1 08(g)(3) of the
City Code, requires that this appeal be heard by a Special Master appointed by the City Commission, in
accordance with the procedures set forth in Section 118-537(b) of the City Code. The Special Master
appointed by the City Commission to hear such appeals is Warren Bittner.
On April 4, 2013, the MDPL filed a Motion to Disqualify Special Master Bittner. Mr. Robbins stated that
Special Master Bittner is representing the City of Miami, as Deputy City Attorney, in two preexisting,
ongoing and "contentious" litigation cases where Mr. Robbins is the opposing counsel. For said reason, Mr.
Robbins explained that the MDPL fears that it will not receive a fair hearing and determination in the
present case. On April 5, 2013, Special Master Bittner ruled that although the Motion to Disqualify was
legally insufficient, he would nevertheless voluntarily recuse himself as "it would be in the best interests for
the administration of justice" and "consistent with Cannon 2 & 3 of the Florida Code of Judicial Conduct."
The City Attorney and the City Manager hereby request that this appeal be transferred to a specially
appointed Special Master who, as required by Section of 118-537(b )(3) of the City Code, is an attorney in
good standing with the Florida Bar, with expertise in the area of historic preservation.
Advisory Board Recommendation:
Financial Information:
Source of
Funds: ~ 1 $250.00/hour -I ,,
,-.o-.;;,< ,, hearinq. v
OBPI Total $1 ,250.
Financial Impact Summary:
Clerk's Office Le islative Trackin
Si n-Offs:
Department Director
REG
MlAMlBEACH
Amount
Maximum of $1,250
491
per
Account
• 011-0210-000312
JM
AGENDA ITEM -.f\_l_F-_
DATE tJ-/]-t3
G) MfAMtBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: ·So of the City Commission
FROM:
DATE: April 17, 2013
SUBJECT: A RESOLUTION OF THE MAYO AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND APPOINTING, PURSUANT
TO SECTIONS 142-108(G)(3) AND 118-537(B) OF THE MIAMI BEACH CITY
CODE, , TO SERVE AS SPECIAL MASTER, ON THE APPEAL
OF "IN RE: 42 STAR ISLAND DRIVE, MIAMI BEACH, FL", CASE NO.
HPSM-13-001, ORB FILE NO. 22936.
ADMINISTRATION RECOMMENDATION
Approve the resolution, and appoint a Special Master for the appeal of "In Re: 42 Star Island
Drive, Miami Beach, FL", Case No. HPSM-13-001, ORB File No. 22936.
ANALYSIS
On March 26, 2013, the Miami Design Preservation League, Inc., (MDPL), through its attorney
Kent Harrison Robbins, filed an appeal of the March 6, 2013 City of Miami Beach Design
Review Board Order on File No. 22936, approving the Application for Design Review Approval
for the construction of a new 2-story home, to replace an existing home constructed prior to
1942, to be demolished, at 42 Star Island Drive. (See Exhibit "A.")
Section 142-108(g)(3) of the Miami Beach City Code, requires that this appeal be heard by a
Special Master appointed by the City Commission, in accordance with the procedures set forth
in Section 118-537(b) of the Miami Beach City Code. The Special Master appointed by the City
Commission to hear such appeals is Warren Bittner. (See Resolution 2010-27524, attached
hereto as Exhibit "B.")
On April 4, 2013, Appellant, MDPL, filed a Verifi~d Motion to Disqualify Special Master Bittner.
(See Exhibit "C.") Mr. Robbins stated that Special Master Bittner is representing the City of
Miami, as Deputy City Attorney, in two preexisting, ongoing and "contentious" litigation cases
where Mr. Robbins is the opposing counsel. For said reasons, Mr. Robbins explained that the
MDPL "fears that it will not receive a fair hearing and determination in the present appeal due to
specific prejudice and/or bias of the Special Master as a result of the ongoing adversarial
relationship between its counsel and Special Master Bittner."
492
On April 5, 2013, Special Master Bittner issued an order on the Appellant's Verified Motion to
Disqualify. (See Exhibit "D.") Special Master Bittner ruled that although the Motion to Disqualify
was legally insufficient on various grounds, he would voluntarily recuse himself as the Special
Master in this appeal as "it would be in the best interests for the administration of justice" and
"consistent with Cannon 2 & 3 of the Florida Code of Judicial Conduct."
The assigned Special Master having recused himself and having withdrawn from further
proceedings in this appeal, the City Attorney and the City Manager hereby request that this
appeal be transferred to a specially appointed Special Master who, as required by Section of
118-537(b)(3) of the Miami Beach City Code, is an attorney in good standing with the Florida
Bar, with expertise in the area of historic preservation.
JLM/JS/reg
T:IAGENDA\2013\Aprii17\CHIEF SPECIAL MASTER MEMO 42 STAR ISLAND.doc
493
l~i
March 26,2013
By Hand Delivery
City Clerk
The Law Offices of Kent Harrison Robbins
MAR 2 6 2013
ClERK OF City of Miami Beach ."'lr-r::•~•ML MASTER
1700 Convention Center Drive
Miami Beach, Florida 33139
Re: Inc.'s Notice of Appeal of the March 2013 City of
Board Order on File No. approving Application
a new 2-story home, to replace an
to be demolished, at 42 Island
To Miami Beach:
Miami Preservation League, a not-for-profit Florida Corporation, notices Clerk
that it is filing Notice Appeal challenging March 2013 Order the City Miami
Beach Review Board on File No. approving the Application for Design Review
Approval for the construction a new 2-story home, to replace 1942
architecturally signiflcant to be demolished, at 42 Star Island
Florida. The March 6, 13 Design Review Board is attached
Section 1
(appointed by
City this appeal to a special master
Commission) and to follow the set
§118-537(b) Miami Beach Code.
filing fee of percent of the paid by the Applicant below) is
cc: Attorney, by email to ~'!J..!~,~.\!~~~~~ .. ,~.~~!o-
Mooney, Design and Preservation Manager,
by email to wlarkin(£{11?1{.ZoningLaw.co_m
I BIT
""""''-='" REVIEW
City of Miami Beach, Florida
MEETING DATE: March 5, 2013
NO: 22936
PROPERTY: 42 Star Island Drive
LEGAL: Lot 42, Star Island, according to the Plat Thereof, as Recorded in Plat
Book 5, Page 52, of the Public Records of M!ami~Dade County, Florida,
alkla Lot 42, Corrected Plat of Star Island, according to the Plat Thereof,
as Recorded in Plat Book 3·1, Page 60, of the Public Records of Miami~
Dade County, Florida.
IN The Application for Design Review Approval for the construction of a new
2-story home, to replace an existing pre-1942 architecturally significant
home, to be demolished.
The applicant, Dr. Leonard Hochstein, filed an application with the City of Miami Beach Planning
Department for Design Review Approval.
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
A on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is not consistent with Design Review
Criteria Nos. 6 & 8 in Section 118-251 of the Miami Beach Code ..
B. The project would be consistent with the criteria and requirements of section 118-251 if
the following conditions are met:
1. , Revised elevation, site plan and floor plan drawings shall be submitted to and
reviewed by staff; minimum, such drawings shall incorporate the following:
495
Page 2 of6
Meeting Date: March 5, 2013
ORB File No. 22936
a. A bronze plaque, which includes a brief history of the original home, along
wlth an engraved photo of either the street front or water front elevation,
shall be provided ln an area at the front of the property, in a manner to be
reviewed and approved by staff.
b. Color photos and measured drawings, including floor plans and
elevations of the existing home, shall be provided.
c. The applicant, as proffered, shall carefully preserve and retain one or
more of the existing decorative ceilings for incorporation into the
proposed main home, in a manner to be reviewed and approved by staff.
d. The overall height to the top of the parapet of the garage within the front
yard of the property shall be reduced by at least 1'-5", from 25'-5" to a
maximum height of 24'-0", in a manner to be reviewed and approved by
staff.
e, The overall height to the top of the parapet of the guest house within the
rear yard of the property shall be reduced by at least 1 '-4", from 26'-4" to
a maximum height of 25'-0", in a manner to be reviewed and approved by
staff.
f. The overall height from the top of the second floor slab to the top of the
roof slab of the main residence shall be reduced by at least 1 '-0", in a
manner to be reviewed and approved by staff.
g. The architecture of the proposed stairwell and elevator bulkhead shall be
much further simplified, the total footprint minimized, and shall be
substantially composed of a simple glass enclosure on all sides with a flat
roof slab, in a manner to be reviewed and approved by staff.
h. The final design and details of the driveway and auto court at the front of
the home, including paving materials and patterns, shall be substantially
further developed and refined in a manner more closely integrated with
the central siting and architectural composition of the main residence, in a
manner to be reviewed and approved by staff.
L All windows, exterior doors, balustrades, exterior raflings, and exterior
decorative features and details shalf be subject to the review and
approval of staff.
j. Manufacturer's drawings and Dade County product approval numbers for
all new windows, doors and glass shall be required, prior to the issuance
of a building permit.
k. All roof-top fixtures, air-conditioning units and mechanical devices shall
be clearly noted on a revised roof plan and shall be screened from view,
in a. manner to be approved by staff. . '
Prior to the issuance of a Certificate of Occupancy, the project Architect
shall verify, in writing, that the subject project has been constructed in
accordance with the plans approved by the Planning Department for
Building Permit.
496
Page 3 of 6
Meeting Date: March 5, 2013
DRB File No. 22936
2. A revised landscape plan, and corresponding plan, shall submitted to and
approved by staff. The species type, quantity, dimensions, spacing, location and
overall height of a!! plant material shall be clearly delineated and subject to the
review and approval of staf[ At a minimum, such plan shall Incorporate the
following:
a. The applicant shall explore alternative pavement materials or combination
of materials, for the front entrance drive and plaza, in a manner to be
reviewed and approved by staff.
b. The landscape plan shall be revised to more accurately reflect the
rendering provided for the rear of the home, subject to the review and
approval of staff.
c. The landscaped areas at the rear of the home shall be substantially
consistent with the percentage of pervious green space shown in the
landscape plan provided with the application, subject to the review and
approval of staff.
d. The use of sod within the side yards of the home shall be reduced.
e. Street trees shall be required within the swale at the front of the property
if not in conflict with existing utilities.
f. Any existing plant material within the public right~of~way may be required
to be removed, at the discretion of staff.
g. A fully automatic irrigation system with 100% coverage and an automatic
rain sensor ln order to render the system inoperative in the event of rain.
Right-of-way areas shall also be incorporated as part of the irrigation
system.
h. The utilization of root barriers and/or structural soil, as applicable, shall be
clearly delineated on the revised landscape plan.
i. The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of an backflow preventors and all other related devices and
fixtures; such fixtures and devices shall not be permitted within any
required yard or any area fronting a street or sidewalk. The location of
backflow preventors, siamese pipes or other related devices and fixtures,
if any, and how they are screen~ed with landscape material from the right-
of-way, shall be dearly indicat1:!d on the slte and landscape and
shall be subject to the review and approval of staff.
j. The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of all applicable FPL transformers or vault rooms; such
transformers and vault rooms, and all other related devices and fixtures,
shall not be permitted within any req1.1ired yard or any area fronting a
street or sidewalk. The location any exterior transformers, and how
they are. screened with landscape material from the right-of-way, $haU be
clearly indicated on the site and landscape plans and shall be subject to
the review and approval of staff.
497
Page 4 of 6
Meeting Date: March 5, 2013
ORB File No. 22936
k. Prior to the issuance of a Certificate of Occupancy, the Landscape
Architect or the project architect shall verify, in writing, that the project is
consistent with the site and landscape plans approved by the Planning
Department for Building Permit.
3. The final exterior surface color scheme, including color samples, shall be subject
to the review and approval of staff and shall require a separate permit.
4. The final building plans shall meet all other requirements of the Land
Development Regulations of the City Code.
5. The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based
on a preliminary review of the proposed project, the following may be required by
the Public Works Department
a. Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable. Unless otherwise specified, the standard color for city
sidewalks is red, and the standard curb and gutter color is gray.
b. Mill/resurface asphalt in rear alley along property, if applicable.
c. Provide underground utility service connections and on-site transformer
location, if necessary.
d. Provide back-flow prevention devices on all water services.
e. Provide on-site, self-contained storm water drainage for the proposed
development.
f. Meet water/sewer concurrency requirements including a hydraulic water
model analysis and gravity sewer system capacity analysis as determined
by the Department and the required upgrades to water and sewer mains
servicing this project
g. Payment of City utility impact fees for water meters/services.
h. Provide flood barrier ramps to underground parking or minimum slab
elevation to be at highest adjacent crown road elevation plus 8".
i. Right-of-way permit must be obtained from Public Works.
j. All right-of-way encroachments must be removed.
k. All planting/landscaping in the public right-of-way must be approved by
the Public Works and Parks Departments.
6, The pro]ect shall comply with any landscaping or other s!del,o/alklstreet
improvement standards ·as may be prescribed by a relevant Urban. Design
Master Plan approved prior to the completion of the project and the issuance of a
Certificate of Occupancy, in a manner to be reviewed and coordinated by staff.
7. The Final Order shall be recorded in the Public Records of Miami-Dade County,
prior to the issuance of a Building Permit.
498
8.
Page 5 of 6
Meeting Date: March 5, 2013
ORB File No. 22936
At the time of completion of the project, only a Final Certificate of Occupancy
(CO) or Final Certificate of Completion (CC) may be applied for; the staging and
scheduling of the construction on site shall take this into account A!! worl< on
site must be completed in accordance with the plans herein, as well as
any modifications approved or required by the Building, Planning, CIP and
Public Works Departments, inclusive of all conditions imposed herein, and by
other Development Review Boards, and any modifications required pursuant to
field inspections, prior to the issuance of a CO or This shall not prohibit the
issuance of a Partial or Temporary CO, or a Partial or Temporary CC.
9. The Final Order is not severable, and lf any provision or is held
void or unconstitutional in a final decision by a court of competent jurisdiction, the
order shall be returned to the Board for reconsideration as to whether the order
meets the criteria for approval absent the stricken provision or condition, and/or It
is appropriate to modify the remaining conditions or impose new condiiions.
10. The conditions of approval herein are binding on the applicant, the property's
owners, operators, and all successors in interest and assigns.
11. Nothing in this order authorizes a violation of the City Code or other applicable
law, nor allows a relaxation of any requirement or standard set forth in the City
Code.
IT IS HEREBY ORDERED, based upon the foregoing findings of the evidence, Information,
testimony and materials presented at the pubHc hearing, which are of the record for this
matter, and the staff report and analysis, which are adopted including the staff
recommendations which were adopted by the Board, that the Application for Design Review
approval Is GRANTED for the above-referenced project subject to those certain conditions
specified In Paragraph B of the Findings of Fact (Condition Nos. 1~11, inclusive) hereof, to
which the applicant has agreed.
PROVIDED, the applicant shall build substantially in accordance with the plans approved by the
Design Review Board, as determined by staff, entitled "Hochstein Residence", as prepared by
Kobi Karp Architecture, dated January 21, 2013, modified in accordance with the conditions set
forth in this Order and staff review and approval.
No building permit may be issued unless and LU'Itil all conditions of approval that must
satisfied prior to permit issuance as set forth in this Order been met The
Design Review Approval does not reiieve the applicant from obtaining all other required
Municipal, County and/or State reviews and permits, including final zoning approvaL If adequate
handicapped access is not provided on the Board-approved plans, thfs approval does not mean
that such handicapped access is not required.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved by the Board, modified in accordance with the
conditions set forth in this Order.
If tht? Full Building Permlt for the project is not issued within eighteen (18) months of the meeting
date at which the original Design Review Approval was granted, the Design Review Approval
wm expire and become null and void, unless the applicant makes application to the Board fo~ an
extension of time, in accordance with the requirements and procedures Chapter 118 of the
Clty Code; the granting of any such extension of time shall be at the dlscretton of the Board. At
the hearing on any such application, the Board may deny or approve the request and modify the
499
I
I
Page 6 of6
Meeting Date: March 5, 2013
DRB File No. 22936
above conditions or impose additional conditions. If the Fu!l Building Permit should expire for
any reason (Including but not limited to construction not commencing and continuing, with
required inspectJons, ln accordance with the applicable Building Code), the Design Review
Approval will expire and become null and valet
ln accordance with Section 118-264 of the City Code, the violation of any conditions and
safeguards that are a part this Order shall be deemed a violation of the land development
regulations of the Code.
STATE FLORIDA )
)SS
COUNTY OF MlAMl~DADE )
The foregoing instrument was acknowledged before me this day of
£-L/:1 .& cZlA 20.1..,2byThomas R. Mooney, Design and Preservation Manager,
Planning'Oepartment, C!ty of Miami Beach, Florida, a Fiorlda Municipal Corporation, on behalf
of the Corporation, He ls personally known to me.
TERESA MARIA * MV CQMMISSION N DD 928i4fl
EX~\1: !I~~Wmbsr 2013
Bondccl Thru 6ul~t N<l\arj
Approved As To Form:
legal Department: ( ~ ... t.. -~()I J
Filed with the Clerk oft e Design Review Board on ( ~-(a_ "Z.o13
F:\PLAN\$DRB\DRB13\MarDRB13\22936.Mar13.FO.docx
500
RESOLUTION NO~i 2010-27524
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, RE-APPOINTING MR.
WARREN BITTNER, ESQ. TO SERVE AS SPECIAL MASTER
FOR APPEALS OF DECISIONS OF THE CITY'S HISTORIC
PRESERVATION BOARD UNTIL SEPTEMBER 16,-2013, AND
SETTING THE COMPENSATION AT $100.00 PER HOUR WITH A
MAXIMUM PAYMENT OF $500.00 PER CASE. .
WHEREAS, the Mayor and City Commission of the City of Miami Beach
recognize that a process .for the review of decisions rendered by the Historic
Preservation Board has been established under City of Miami Beach City Code, Section
118-537 (b)(3); and ·
i
WHEREAS, affected parties have the right to seek a review by a Special Master
appointed by the City Commission of projects approved by the Historic Preservation
Board; and
WHEREAS, Mr. Warren Bittner, Esq., is a uniquely qualified individual, based
upon his experience in the field of historic preservation and as a practicing attorney, tb
review decisions rendered by the Historic Preservation Board; and
WHEREAS, in City of Miami Beach Resolution No. 2007-26642, the Mayor and
City Commission re-appointed Mr. Warren Bittner, Esq. to serve as Special Master for
appeals of decisions of the City's Historic Preservation Board through September 16,
2010;and
WHEREAS, Resolution No. 2004-25710 established the compensation at the
rate of $100.00 per hour with a maximum payment of $500.00 per c~se. · ·
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF .MIAMI BEACH, FLORIDA that 'Mr. Warren Bittner,·
Esq., is hereby re-appointed to serve as a Special Master for appeal's of decisions of the
City's Historic Preservation Board for a period of three (3) years expiring on September
16, 2013, and to set his compensation at the base rate of $100;oo per hour with a
maximum payment of $500..00 per case.
ATTEST: ·
!o
T:\AGENDA \201 0\September 15\Consent\Warren Bittner-RES rev.doc
EXHIBIT fso 1
APPROVED ASTO
FORM & LANGUAGE
&F6 ECUTiON
--*
19
IT L ,.,., I
1 l,l--.,
TN 42 STAR ISLAND DlUVE,
MIAMI BEACH, FLORIDA
BEFORE THE SPECIAL MASTER
CITY OF MIAMI BEACH, FLORIDA
CASE NO. HPSM-13-001
[DRB FILE NO. 22936]
APPELLAI't"'TS' VERIFIED 1\tiOTION TO DISQUALIFY SPECIAL "'MASTER
Miami Design League, Inc. ("MDPL"), ;;md its
undersigned counsel, pursuant to Rule Judicial Administmtion ("Rule
2.330"), hereby moves to disqualify Special Master proceeding further in
OVERVIEW
AppeUant MDPL that it will not a detennination due to bias
or prejudice Special Master its counsel. The Special Master case, Warren
Bittner, has a direct, ongoing, pre-existing interaction with MDPL's undersigned
counsel another, umelated matter m dispute in two pending litigations, SC
Investment Holdings, LLC v. City of,Miami, et. al. (Circuit Case No. 12-04991 CA and
CoUit Appellate Division No. 12-402-AP). Mr. is Deputy Attorney f(H
Miami those cases. The counsel represents SC Jnvestment Holdings,
("SC Investments"). case, there is a pending Motion to Refer to Commissioner
to Hold Evidentiary Hearing. issues to be resolved regards
on of other members of Special Master Bittner's law firm. has resulted in a situation
where the appellant MDPL has a well-founded prejudice or against Accordingly,
502 EXHIBIT C
CASE NO. HPSM-13-001
pursuant to applicable rules and prevailing
disqualify himself.
the Special Master should immediately
FACTS
1. This action is an appeal of City of Miami Beach Design Review Board Order on
No. 22936, approving Application for Design Review Approval the construction of a
new 2-story home, to replace an existing pre-194 2 significant home, to
demolished, at 42 Star Island Drive, Miami Beach, Florida, which was filed on March 2013.
The MDPL is the appellant The undersigned counsel has represented the MDPL, intermittently,
2007 and handled the hearing of this matter below and related matters.
2ih or 28 1h of March, in a conversation with Ms. Cynthia Neves, Clerk
the Special Master for the City of Miami Beach, the undersigned counsel was advised that
Warren Bittner had been appointed Special Master and was to preside over the instant
3. March 29, 2013, the undersigned counsel received an email from Mr. Bittner,
attached on behalf of the City of Miami in case, SC
Investment Holdings LLC v. City of Miami, et. al. (Circuit Court No. 12-04991 CA 08).
4. The lmdersigned counsel represents SC Investments in case, and other
litigation involving SC Investments, the City of Miami, and others, that is, in Circuit
Appellate Division Case No. 12-402-AP.
5. Mr. Bittner is an attorney involved in both actions representing the City of Miami
against Investments, and therefore is one ofthe undersigned's adversaries both actions.
6. The litigation between SC Investments and City of Miami is contentious.
Pending in Case. No. 12-402-AP are motions, one of which is Investments' Motion to
Refer to Commissioner to Hold Evidentiary Hearing. That Motion to Reier is related to a Motion
CASE NO. HPSM-13-001
to Dismiss Lack of Jurisdiction and the Court for an evidentiary hearing to resolve
factual issues, including questions raising possible improper conduct involving other members of
Mr. Bittner's law
For the reasons discussed herein, the MDPL that it will not receive a fair
hearing and determination in the instant appeal due to specific prejudice and/or bias of the
Special Master as a result of the current ongoing adversarial relationship between its counsel and
Special Master Bittner.
8. The adversarial relationship is between the Special Master and the MDPL's
counsel, not between the Special Master and the party, the MDPL. The MDPL believes that it
will suffer prejudice against position in the instant case as a result of the Special Master's bias
against Mr. Robbins, its counsel in this matter, arising from the contentious litigation in other
matters that are current and ongoing. MDPL, being fully apprised of the facts, fears it vvill not
receive a fair hearing.
9. The MDPL's fear is reasonable and well-founded.
Florida Rules of Judicial Administration 2.330 governs disqualification of judges, and
provides both the procedure and the grounds for a motion based upon the rule. Further, the rule
allows the motion for disqualification to be based upon the rule, statute or by the Code of
Judicial Conduct. Fla. R. Jud. Admin. 2.330(b). Florida Statute §38.02 (2012) extends all of the
grounds of disqualification of a judge to special masters. Tri-State Enterprises, v. Berkowitz,
182 So. 2d 40, 44 (Fla. 2d DCA 1966); see also Jenkins v. Sterlacci, 849 F.2d 627, 631 n.l (D.C.
Cir. 1988) .. .insofar as special masters perfonn duties functionally equivalent to those
504
CASE NO. HPSM-13-001
performed by a judge, they must be held to the same standards as judges for purposes of
disqualification.
The grounds for disqualification are clearly set forth in Florida Rules of Judicial
Administration 2.330(d). The motion to disqualify "shaH show" party fears that he or she will
not a fair or heming because of specifically described prejudice or of the judge,
or as in this case, the special master. Fla. R. Jud. Admin. 2.330( d)(l ). The MDPL clemly states
fears and the specific grounds for these fears herein this sworn motion.
The Canons contained within Code of Judicial Conduct provide independent grounds
for disqualification. Both Canons 2 and 3 apply to the situation at hand. Canon addressing a
judge's avoidance of the appearance of impropriety, demands the special master "respect and
comply with the law and shall act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary." Fla. Code of Jud. Conduct, Canon 2.A. The United
States Supreme Court has stated that "[t]he goa1 is to avoid even the appearance of partiality."
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988). The commentary to
Canon 2.A lays out the test tor an appearance of impropriety:
The test for appearance of impropriety is whether the conduct would create
reasonable minds, with knowledge of all the relevant circumstances that a
reasonable inquiry would disclose, a perception that the judge's ability to carry
out judicial responsibilities with integrity, impartiality, and competence is
impaired.
Commentary to Canon 2.A, Fla. Code of Jud. Conduct. Special Master Bittner's direct contact
with Mr. Robbins, counsel for the MDPL in the instant appeal, because of contentious ongoing
litigation happening concurrently, would create in reasonable minds a perception of impaired
ne1:ence. The potential for bias exists. The appearance of impartiality is as harmful as actual
impartiality. Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).
505
CASE NO. HPSM-13-001
Furthermore, Canon 3 .E( 1) mandates a judge or special master to disqualify himself in a
proceeding where his impartiality might reasonably be questioned. Canon 3.E(l), Fla. Code of
Jud. Conduct (emphasis added). One of the enumerated instances that require disqualification is
that where the special master or judge has a personal bias or prejudice concerning a party or a
=-"-'-~=..:.....'-"""-· Canon 3.E(l)(a) (emphasis added); see also Town Centre of L'ilamorada, Inc. v.
Overby, 592 So. 2d 774, 774 (Fla. Yd DCA 1992) ("Bias or prejudice against a litigant's attorney
is grounds for disqualification where the prejudice is of such degree that it adversely affects the
client. The interaction between Mr. Robbins and Special Master Bittner is ongoing, and
adversarial. (The attorney/client relationship between Mr. Robbins and the MDPL pre-dates the
litigation between SC Investments and the City of Miami.) These facts show that the resulting
prejudice to the MDPL is of a significant degree such that it will have an adverse affect on the
instant appeal.
Review a Verified Motion for Disqualification is narrow. According to Rule 2.330(£),
the special master/judge against whom an initial motion is filed "shall determine only the legal
sufficiency of the motion and shall not on the truth of the facts alleged. The motion "is
legally sufficient when the alleged facts would create in a reasonably prudent person a well-
founded fear of not receiving a fair and impartial trial."1 Valdes-Fauli v. Valdes-J<auli, 90£3 So.
2d 214, 216 (Fla. 3rd DCA 2005). The alleged facts are assumed to be true and are viewed from
the movant's perspective. Krawczukv. State, 92 So. 3d 1 200-01 (2012); .Jarp v . .Jarp, 919 So.
2d 614, 615 (Fla. 3rd DCA 2006).
1 The other grounds for legal sufficiency as per Rule 2.330 include that the motion be verified
and that counsel include an accompanying certificate of good faith. The instant motion is
compliant with these mandates.
CASE NO. HPSM-13-001
This Court's only determination is whether these assumed-to-be true facts would prompt
a reasonably prudent person to fear that he could not a fair and impartial proceeding. Hayslip
v. Douglas, 400 So. 2d 553, 556 (Fla. 41h DCA 1981). "It is a question of what feeling resides in
the [movant's] mind, and the basis for such feeling ... [The special master] cannot pass on the
truth ofthe allegations offact." Id. (quoting State ex rel. Brown v. Dewell, 179 So. 2d 695,697-
98 (Fla. 1938).
"If the motion is legally sufficient, the judge [special master] shall immediately enter an
order granting disqualification and proceed no further in the action." Fla. Rule of Jud. Admin
2.330(t).
Accordingly, as this Verified Motion sets forth, the unusual circumstances ofthe instant
case have produced in the MDPL a reasonable and justifiable that it will not fair
hearing and determination in an appeal over which Special Master Bittner would preside. "A
trial in a fair tribunal is a basic requirement of due process." Jenkins, 849 F.2d at 1.
·wHEREFORE, the Miami Design Preservation League, Inc. respectfully moves for an
immediate order disqualifying Special Master Warren Bittner from presiding over tl1is matter.
KENT HARRISON ROBBINS
Attorney for Appellant MDPL
1224 Washington A venue
Miami Beach, Florida 33139
Telephone: (305) 532-0500
Facsimile: (305) 531-0150
Email: khr@khrlawoffices.com
Florida Bar No.: 275484
CASE NO. HPSM-13-001
GOOD FAITH CERTIFICATION PURSUANT TO FLA. R. JUD. ADMIN 2.330(c)
undersigned counsel herby certifies, pursuant to Rule 2. 3 00( c), the Verified
Motion is made good
SON ROBBINS
Attorney Appellant MDPL
VERJFICA TION
Under penalties perjury, l 1 have read foregoing Verified Motion to
Disqualify Special Master, and the facts stated therein are true.
Miami Design Preservation
By:
Charles Urstadt as Chahm
STATE OF FLORlDA )
) ss.:
COUNTY OF MIAMI-DADE )
instrument was acknowledged before me this ~~day of April
2013, by Urstadt as Chailman of the Miami Design League. He is
personally to me or __:i.._ who has provided F~-~;23_--:l!f1.ft5!11:{~
identification.
My commission expires: ~~J.'J./ ll.R
l{ent H. Robbins
from:
Sent:
Bittner, Warren <WRBittner@ miamigov.com >
Thursday, March 28, 2013 4:05 PM
To: Kent H. Robbins
Cc: Dennis Richard
Subject: SC Investiments TI-Circuit Court-12-04491 CA 08
Kent, I tried to call you a moment ago, but you were out.
May the Defendants (all of us) have an extension to respond to your First Amended Complaint through and including
April 26th, 2013?
Currently our responses are due on April 1st (for City) and April 2nd (other Defendants).
Please let me know. Thank you very much.
Warren Bittner, Deputy City Attorney
City of Miami Office of the City
Te!ephone: 305-416-1813
Facsimile: 305-416-1801
Assistant: Bettie 1, Vogler (305) 416-1830
!ll§~[!mtJ:: This e-mail is intended for the or named within th<: message. This e-mail contaln
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c!!ent or work Should the intended recipient forward or disclose this message to another person or party, that action could
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Please consider the environment before printing this e-mail.
509
CASE NO. HPSM-13-001
THE UNDERSIGNED HEREBY CERTIFIES that a true correct copy ofthe
foregoing was forwarded by electronic mail on the t day of April, 201 to counsel as follows:
Gary Held, First Assistant City Attorney
City of Miami Beach
1700 Convention Center Dr.
Miami Beach, Florida 33139
Telephone: (305) 673-7000 ext. 6532
Facsimile: (305) 673-7002
Email: Garyl-feld@miamibeachflgov
Michael Larkin, Esq.
Bercaw, Radell & Fernandez, P.A.
200 South Biscayne Blvd., Suite 850
Miami, Florida 33131
Telephone: (305) 377-6231
Facsimile: (305) 377-6222
Email: MLarkin@brzoninglaw.com
-
510
KENT HARRISON ROBBINS
BEI<"ORE SPECIAL 1\'!ASTER
CITY OF MIA~U BEACH, FLORIDA
NO.: HPSM-13-001
FILENO.
IN ISLAND DRIVE,
MJAMI BEACH, FLORIDA,
The Appellant, JNC. (".MDPL")
has MOTION
seeking to disqualifY the undersigned from presiding over matter. After
contents Motion, Special Master rules as foUow:
I.
THE STA~l)ARD FQR DlSQllAl~IFYl~G THE SPEeiAL l\rt4.STER
MDPUs Motion to is under Rule 2330 of the Florida Rules
tviDPL to Section (b) of Rule for
that it allows for a motion disqualification to be based on rule,
Rule
on authority Rule and Inc. v.
Berkowitz, 182 So. 40 (Fla. tld DCA 1966), NIDPL ""'"''"'""'"'"that section 38.02, F,S.,
"extends all of the grounds of disqualification a judge to special masters.,
:First, subsection (a) ofRule 2,330
(a) Application. This n!le to county and judges in
aU matters in all divisions of court. [bolding added]
EXHIBIT D
511
2
ORDER ON MOTION DISQU.<\LIFY
CASE NO.: HPSM-13-001
Therefore, its own terms, Rule 2330 "applies only to
City of Miami
is neither a county judge, nor a judge. Thus. Rule is not
the vehicle through circuit
can be extende~ to the
Second, 182 Zd 40 2nd DCA
1966), decided in to the adoption of current Florida Rules of Civil
l, 1 held,
other point raised ls the appointment of an
cm:rnsci as spedal mn~ter to perform duties
proc~sing the redemption of th~
The in fonncr of
masrers was forward into Rule L490(d),
R.
187 So.2d (Fla l
512
·•masters" to "magistrates", 2
3
'""'"""""-....,"' ON MOTION TO DISQUALIFY
NO.: HPSM-13..001
Rule 1.490(d). now provides, in
pertinent
m
(d) Generall"owers and Duties.
aU of the duties that pertain to
cn~moerv and under the direction
""""''"'U"'"' shall perform
acootdiug to the practice in
court . }..U grounds oJ
~~!!lli~;m.J~.JY9~~~!fiDrJq_Jru!~mutl. [underlining addedJ
Noh\'ithstandi ng to magistrate"
Rule and Title of Rules", on the
to
1.010, Fla
SCOPE AND
statut20:: p:roceeding_Acjn the circuit courts ~nd county COJtrts except
to which the Florida Probak tbe Florida l~amily Law Rutes
Procedure, or the SmaH apply.
time of pleading in an special statutory proteedings shan
as prescribed by the the proceedings
rules specii1ealiy provide to the rules shall be
to secure the just, and determination of every action.
These rules shaH be known as of Civil Procedure and
abbreviated as FtaRCiv,P.
the holding m
undersigned is not bound by the Fla R.
(applicable only of this state),
This the questions what procedures m
un the quasi-j udidal decision made by
z See Amemiments to the App, tlte R. of etc., 1090,
1090-91 2004).
513
PAGE 4
ORDERON TO
CASE NO.: HPSM-13-001
below. The the Florida Supreme Court has answered
So.2d 1212 (Fla. 1979).
Carlton, filed a suggestion thai
or be cause on the grounds friendship
lav;yer whose law firm represented the respondent, the administrator of estate
to
but were not attorneys
view of
"'rith individual
Deparlmeni
l975)][boiding
As indicated above, MDPL
Jud. Adm., and the has
However, even assurning
heen and
the cause at issue. In leaving the up
Court
Fla.
that this does not apply in
it did apply. MDPL's motion would have
decision in
Barnhill v. State, 834 (Fla. 2002). is on point controlling.
the Appellant (Barnhill) argued trial ccurt in
motion to disqualify motion was technicaHy insufficient and
properly denied, Florida Supreme Court as follows:
514
PAGE 5
ORDER ON MOTION DISQUALIFY
CASE NO.: HPSI\-1·13..001
In the motion to disqualify, Barnhill asserts that a weB-
grounded that will not and impartialt and that the
judge's indicate bias against him because 1he judge denied his
to despite the State offered no to
contradict Barnhill's that he iived \vtth his girlfriend in New
York.
The motion to dlsqualif)' is \egaily insufficient the
supporting afl1davit made by not state the specific
which lead him to believe he \vill not receive a The oath tb~lt
contained in this motion." !JamhUl did not tYl!Jll'l affidavit statipg the
fad~ and the reasoqs for flw ,Jldief that bias or prejudice ~:Qits.
~the certificate of ctunsl~l of rec~x!!js attached to the mtltion
itself and sbJtes only that the SJr:ttements of the defendant cot1t~ined
"herein" arfl, made in goo~ fnittl, was tecmlkally
insufficient, and the trial judge's ruling was correct
Without the
the motion was legally suiliciem u""·'*u;,...,
motion \Vl:1S were legally
com.mentary on the truthfulness
the outcome and \varranted
true_or not~. the tecil:rdcal r~n~I~l!!Cnts of the motiQJl were not m.~t
and the trial eourt's decision todenyjhe motiOD @S lf,'l'g_~llY insufficient
l'Jl!tnroner. I d. at [underlining and bolding added],
motion to disquaHi)' at bar is indistinguishable motion deemed
technically and legally defective by the Court Barnhill, in particular:
the oath MDPL) on merely refers to
and the reasons the
belief that or prejudice and (b) Certification counsel also attached to the
motion itseif on states only tlmt ''Lhe Verified Motion is made in good faith".
515
PAGE 6
'U'n.I..<JLn. ON MOTION TO
NO.: BPSM~ 1J..001
Consequently. the oreced.em of the
Florida
applied, because it is technically
l'HE !\lOTION TO DISQlJAIJFY IS J,EGALL\'1NSUFFICIENT
Motion to DisqualifY is also legally
technically insufficiency
Supreme Court has repeatedly set forth test to determine legal .. ,.~ ....... ~. motion
to
the motion is detennination must
be aHeged \votdd place a person in
,,
lm: •• 1334-5 (Fla 1990), livingston v. t So.2d 1083,
1086 (Fla. 1983). The legal sufficiency of motion is purely a question law. at
C~urt \ll3S whether ro1 allegation in a motion
contribution to the
more, is
that some persons may biased favor of the contributing
litigant or that a contribution was made." Florida
Supreme h~ld that
516
7
V.A'UJtL.O: ... ON MOTION TO DISQUALIFY
CASE
that "[a) judge is not to dis qual i l)'
such alleged facts." ld.
Other precedent m light on what constitutes a
I So.2d 857 2006), Schocnwetter, moved to
disqualifY judge based on the fact the trial was a
prejudice or ofthe judge" at 872.
Corporathm v. Padovmw, 708 244 the
had to to a writ to prevent
First from presiding over rm pending that
rourt on a previous panel court judges in Court, a pnor
in the panel.
that, of Canon 3E( 1 ).
disqualifY or herself in a
questioned," hold
unprofessionalism to The . in and of lS
517
ORDER
8
MOTION TO DISQUALIFY
HPSM-13-00J
judicial disqualification. The same applies in the similar context attorney
perceived judicial unprofessionalism to " ld. at 248.
The a showing Cannon
3E( l) should appJy made in that case:
JQC have been
reports to The Florida Bar or
disqua1 i !I cation remains available where it can be
"the
or the party's
3E(lXaXemphasis
has bias or prejudice concerning a
la,;,yer[. t Fla. Jud. Conduct Cannon
added). No such showing .has been here.
fan~iful tQ_~~t r~U.e£
J986Xholding that '[aJ
an foundation
that petitioner's ~.pbjee~~ivc as alleged, were not
sufficient to justify a weil-tbundcd ofprejudice). [underlining and
holding addedl[italics in
The rationale of Corporation is equally applicable to the situation here -it is
speculative, attenuated too fanciful to warrant relief.
the Third that,
litigant's attorney is disqUlllification where the prejudice is of such a
that it of Islamnrada, So.2d 774. 775
DCA 1992}. Gituberg v. So.2d (Fla. l Stale a
Davis v. Parks, 1 So. 613 ( 1930). noted that, "a \vrit of
court.' Olszewska v. Fe"aro, 590 So.2d 1 i (Fla. DCA 199 the judge says he 'vill
518
PAGE 9
ORDER ON MOTION TO DISQUALIFY
CASE NO.: HPSM-13~001
'deal with' attorney for having 'gone over' his head. Lame11dol.a v. Grossman~ 439 So.2d
960 (Fla. 3d DCA 1983); the judge states that client's attorney •should not be in this
case. • llayslip v. Douglas. 400 So.2d 55 3 (Fla. 4th DCA 1981 ); the judge delivers a tirade
about the law-yer's opposition to the judge's appointment to other judicial positions.
McDemwtt v. Gros:mum, 429 So2d 393 (Fla. 3rd DCA 1983); or where attorneys for
petitioners had testified against the judge at impeachment proceedings brought against
the judge. Brewton v. Kelly, 166 So.2d 1U4 (Fla. 2nd DCA !964)."
None of \Vhat MDPL has alleged in its motion even comes close to the legal level
demonstrated by these example.s.
Accordingly, by virtue of the numerous authorities cited above, the Special
Master concludes that tvl.DPL 's Motion to Disqualify is legally insufficient, and is
therefore DEN! ED.
IV.
YQ!::!.lll~T:\!tXR;f;(:US.~J::
Even though a suggestion for dLi)qualification is legally .insufficient, a judge may
still voluntarily recuse himself if he believes it \Vould be in the best interests for the
administration of justice. In re Estate of Carltott, 378 So.2d 1212 (Fla. 1979)(0verton,
J. on denial of request for recusal).
The Special Master is not unmindful of the legal muxim that ·'[e]very litigant is
entitled to nothing less than the cold neutrality of an impartialjudge.'' This is an unusual
situation, \Vhich has never occurred 1n the many years the undersigned has acted as
Special Master hearing these appeals. The Special Master has been unable to locate any
519
PAGE 10
ORDER ON MOTION TO DISQUALIFY
CASE NO.: HPSM~l3-001
authority directly addressing this situation. The case Jaw unitormly addresses the
disqualiflcation of judges -which is not surprising -and judges do not usually
simultaneously conduct the practice of la\V, as the Special Master does. Thus, Judge's
are not faced \vith the situation of having an attorney appearing before him or her, who
also happens to be an opposing counsel on a case in which they are actively representing
a party. There being no case law on point, the Special Master is concerned that he has
active, pending lawsuits on which MDPL's counsel is also simultaneously opposing
counsel. If the Special Master were not to recuse himself, Mr. Robbins may be
constrained, consciously or unconsdously. to act differently in the representation of his
client in those la\vsuits. The Special Ma.;;;ter is also concerned about the potential for
delay in the adjudication of this appeal occasioned by declining disqua1H1cation, which
may be prejudicial to the parties.
Consequently, with these considerations in mind, at least so long as the Special
Master, in his role as Deputy City Artomey, is assigned by the City of Miami City
Attorney to handle open and pending cases in which Mr. Robbins is opposing counsel,
the Special Master believe:; it would be prudent and consistent with Cannon 2 & 3 of the
Fla. Code of Jud. Conduct, to voluntarily recuse himself from appeals in which Mr.
Robbins is representing a party, if thar party raises· an appropriate and timely o~jeclion,
as has occurred in this case.
Ill
'II In
520
WHEREFORE,
Copies provided to:
Kent Harrison Robbins, Esq.
Michael Larkin,
Held, First
Spooial
521
PAGE 11
ORDER ON ~lOTION TO DISQlTAl.IFY
CASE NO.: UPSM .. l3a00l
RESOLUTION NO.-------
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING AND APPOINTING, PURSUANT TO SECTIONS
142-108(G)(3) AND 118-537(B) OF THE MIAMI BEACH CITY CODE, TO
SERVE AS SPECIAL MASTER, ON THE APPEAL OF "IN RE: 42 STAR ISLAND
DRIVE, MIAMI BEACH, FL", CASE NO. HPSM-13-001, ORB FILE NO. 22936.
WHEREAS, on March 26, 2013, the Miami Design Preservation League, Inc., (MDPL}, by its attorney
Kent Harrison Robbins, filed an appeal of the March 6, 2013 City of Miami Beach Design Review
Board Order on File No. 22936, approving the Application for Design Review Approval for the
construction of a new 2-story home, to replace an existing home constructed prior to 1942, to be
demolished, at 42 Star Island Drive;
WHEREAS, Section 142-108(g)(3) of the Miami Beach City Code, requires that this appeal be heard
by a Special Master appointed by the City Commission, in accordance with the procedures set forth in
Section 118-537(b) of the Miami Beach City Code;
WHEREAS, the Special Master appointed by the City Commission to hear such appeals is Warren
Bittner, Esq.;
WHEREAS, on April 4, 2013, Appellant, MDPL, filed a Verified Motion to Disqualify Special Master
Bittner, citing that it "fears that it will not receive a fair hearing and determination due to bias or
prejudice of Special Master [Bittner] against its counsel";
WHEREAS, Mr. Robbins stated that Special Master Bittner is representing the City of Miami, as
Deputy City Attorney, in two preexisting, ongoing and "contentious" litigation cases where Mr. Robbins
is the opposing counsel;
WHEREAS, on April 5, 2013, Special Master Bittner issued an order on the Appellant's Verified
Motion to Disqualify whereby he ruled that although the Motion to Disqualify was legally insufficient on
various grounds, he would nevertheless voluntarily recuse himself as the Special Master in this
appeal as "it would be in the best interests for the administration of justice" and "consistent with
Cannon 2 & 3 of the Florida Code of Judicial Conduct";
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA THAT:
Special Master Bittner having recused himself and having withdrawn from further proceedings in this
appeal, is hereby appointed to serve as Special Master, on the appeal of "In Re:
42 Star Island Drive, Miami Beach, FL", Case No. HPSM-13-001, ORB File No. 22936. ______ _
possesses the knowledge, skills and attributes to perform as Special Master in this appeal.
PASSED and ADOPTED this_ day of April 2013.
ATTEST:
RAFAEL E. GRANADO,
CITY CLERK
T:\AGENDA\2013\April 17\Chief Special Masler Resolution 42 Slar Island doc
MATTI HERRERA BOWER,
MAYOR
522