R7D-Set Public Hearing Design Review Board Appeal - DAS Node at 1604 Alton RoadMIAMIBEACH
City of Miomi Beoch, ,l700 Convention Center Drive, Miomi Beoch, Florido 33,I 39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO:
FROM:
DATE:
SETTING OF THE PUBLIC HEARING
SUBJECT: Design Review Board Appeal-S Node at 1604 Alton Road
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CIry OF MIAM! BEACH, FLORIDA, SETTING A PUBLIC HEARING,
PURSUANT TO SECTION 118.262 OF THE CITY GODE, FOR AN
APPEAL FILED BY W. TUCKER GIBBS, P.A. AND RAFAEL E.
ANDRADE, P.A., ON BEHALF OF ARRP MIAM!, LLC, OF THE
DESIGN REVIEW BOARD'S ORDER RELATING TO DRB FILE NO.
23062 TO LOCATE A DTSTRTBUTED ANTENNA SYSTEM (DAS)
NODE AT 1604 ALTON ROAD, AND SETTING SUCH PUBLIC
HEARING FOR THE CITY COMMISSION MEETING OF
ADMINISTRATION RECOMMENDATION
Adopt the Resolution and schedule the public hearing.
BAGKGROUND:
Pursuant to City Code Section 118-262, W. Tucker Gibbs, P.A. and Rafael E. Andrade,
P.A., on behalf of ARRP Miami, LLC, as the affected person, are requesting a review of
the Design Review Board decision rendered on August 05,2014 (DRB File No. 23062)
pertaining to the approval of of a Stealth Distributed Antenna System (DAS) node within
the public right-of-way at the approximate location of 1604 Alton Road. The subject
property is not located within a historic district.
Section 118-262 of the Miami Beach City Code allows the applicant, the City Manager
on behalf of the City Administration, the Miami Design Preservation League, Dade
Heritage Trust or an 'Affected Person', to seek review of any order of the Design Review
Board by the City Commission. For purposes of Section 118-262, an "affected person"
shall mean either:
(i) a person owning property within 375 feet of the applicant's project reviewed by
the board, or
(ii) a person that appeared before the design review board (directly or
represented by counsel), and whose appearance is confirmed in the record of the
design review board's public hearing(s) for such project.
It appears from the appellant's "Request for City Commission Review of Design Review
Board Decision" that the definition of 'affected person' has been satisfied, as the
Mayor Philip Levine and Members qf the City C
Jimmy L. Morales, City Manager
October 22,2014
Agenda ltem fl7 D
oate lo'22-lV452
Commission Memorandum
DAS Node:1604 Alton Road APPEAL- Setting Public Hearing
Oatoher 22 2O14 Panc 2 af 2
Appellant owns property within 375 feet of the applicant's project. A copy of the appeal
request is attached hereto.
Also pursuant to Section 118-262 of the Miami Beach Code, the review by the City
Commission is not a "de novo" hearing. The hearing must be based upon the record of
the hearing before the Design Review Board. Furthermore, Section 118-262 (b) states
the following:
ln 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 proceduraldue process;
2) obserue essential requirements of law; or
3) base ifs decision upon substantial, competent evidence.
ln order to reverse or remand a decision of the DRB, a 5/7th vote of the City Commission
is required.
CONCLUS!ON
The Administration recommends that the City Commission set the public hearing to
review a decision of the Design Review Board pertaining to DRB File No. 23062 forthe
proposed DAS Node at approximately 1604 Alton Road for a date certain of November
19,2014.ffil
JLMU[flJffRM/JGM
T:\AGENDAVO14\October\DAs NODE DRB File No. 23062 Appeal - PH MEMO.docx
453
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, SETTING A PUBLIG HEARING, PURSUANT TO
SECTION 118.262 OF THE CITY CODE, FOR AN APPEAL FILED BY ARRP
MIAMI, LLC, OF THE DESIGN REVIEW BOARD'S ORDER RELATING TO
DRB FILE NO. 23062 TO LOCATE A DISTRIBUTED ANTENNA SYSTEM
(DAS) NODE lN THE R|GHT-OF-WAY AT APPROXTMATELY 1604 ALTON
ROAD, AND SETTING SUCH PUBLIC HEARING FOR THE CITY
COMMISSION MEETING OF
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, Crown Castle was the applicant for design review approval
for a Distributed Antenna System (DAS) Node to be located in the right-of-way at
approximately 1604 Alton Road, under DRB File No. 23062, which meeting was
held and approval granted on August 5, 2014; and the order on the application
was rendered on August20,2014 ("Orde/'); and
WHEREAS, W. Tucker Gibbs, P.A., and Rafael E. Andrade, P.A., on
behalf of their client ARRP Miami, LLC have timely requested a review of the
Order.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND
CITY COMMISSION OF THE Clry OF MIAMI BEACH, FLORIDA, that a public
hearing is set, and notice should be given, pursuant to Section 118-262 of the
City Code, for an appeal filed by ARRP Miami, LLC, of the Design Review
Board's Order under DRB File No. 23062, to locate a Distributed Antenna
System ('DAS') Node in the public right-of-way at approximately 1604 Alton
Road, and setting such public hearing for the City Commission Meeting of
PASSED AND ADOPTED this
ATTEST:
Rafael Granado, City Clerk
Philip Levine, Mayor
day of 2014.
APPROVED AS TO
FORM & I.ANGUAGE
& FOR EXECUTION
(o- t ' \4''
-
Date
454
&{l W. TUCKER GNtstsS, P.A"
A'ITORNEY AT LAIiV
fq [T S H IV h, ffi
P.O. BOX t050
cocoNrur GRovE FL 33133
I h s[p I 0 AFt g: I ?
rer.rnroNr[o$ 448-8486
pAcsrMtE (ao5).aa.8a773 C I 1 y Al I 0RHt y,S 0f Fffiff
tuckerrowtSibbs.corn
Sept.ember 10, 2014 VXA TIAIID DELIVERY
Rafael E. Granado, Cit.y Clerk
City of Miami Beach
L700 Convention Center Drive
Miami Beach, Florida 331-39
Rq:, Request for City Colmlission Seview.
Crown Castl"a NG Eagt, 1604 Alton Road.
DRjB Fi.Ie 23062.
Dear Mr. Granado:
On behalf of my clienc ARRP Miami, LLC, and pursuant to
section lLB-262 of the city's land development regnrlations,
enclosed for filingr is uhe attached request for city
conrmission review of the Desigrn Review Board Decision
regardingr the applicat.ion of Crorarn Cast1e NG East,, regarding
the placement of a cellular transmission pole ar-- 1604 Alton
Road (DRB File 23062). AIso enclosed is a check for the
applicable filing fee ($430.00).
Also, please confirm Lhat pursuant to secLios LLB-264
that the issuance of any fu1l building permit is stayed for
the project being appealed until its final resolution,
I am available to answer any questions you may have
regarding this filing.
Sincerely,
llpult4,frrLw. Tucker\diffs
cc: Planning Director Thomas R. Mooney
City AttorneY RauI Aguila
First Assistant City ALtorney Gary iield
AARP Miami, LLC
455
BEF'ORE TFIE hdiAMI tsEACFI CXTY COMIMISSIOI{
DESXGN R,EYIEW tsOAR.D F'IIE NA62
IN RO: CR.OIVN CASTI,E NG EAST,INC,
That portion of the north side of the right-of-way known
as Alton Road located at Latittide: North 25 degrees,
47'20.649", LONGITUDE \Yest 80 degrees, 08'28,655".
Florida State Coordinates: X=9387 L7 ,491,
Y=529948.984. A/M: t604 Alton Road, Miami Beach,
Florida 33139
R.EQUEST FOR CXTY COMMISSION REVIEW OF'
DESIGN REVItsW BOARD DECISION
ARRP Miami, I-LC ("ARRP"), pursuant to section 1t8-262, City of Miami
Beach Land Development Regulations, requests that the City of Miami Beach City
Commission ("commission") review the decision of the Miami Beach Design
Review Board ("DRB") to grant the application for design review approval for the
placement of a 25-foot tall cellular receiving and transrnission device ("ce11 pole")
at the referenced location. (DRB File No. 23062). ARRP requests that the
commission reverse that DRB decision, or in the alternative, remand the matter to
the DRB with instructions to reconsider the application after a properly noticing
the hearing pursLlant to the requirements set out in the City of Miami Beach Land
Development Regulations ("LDRs") and the City Charter of the City of Miami
Beach.
456
1. ARRP owns the property at 16t4 Alton Road, IVIiami Beach, Florida,
within 37 S-f.eet of the applicant's project (at 1604 Alton Road) reviewed by the
DRB.
2. ARRP is an affected person under the definition in LDR section i 18-
262because it owns property within 375 feet of the applicant's project reviewed by
the DRB. Therefore ARRP may seek city commission review of the DRB Order on
File No. 23062.
3. The DRB on August 5,2014, held a quasi-judicial hearing and
reviewed the application for design review approval for the installation of the cell
potre at 1604 Alton Road ("Alton Road pole").
4. At that hearing Rafael E. Andrade, Esq., appeared before the DRB and
objected to its consideration of the application for the Alton Road pole because the
DRB hearing on this matter was not properly noticed to the public as required by
section LLB-7 6 of the LDRs and section 8 of the By-Laws and Rules of Order of
the Design Review Board.
5. The DRB rejected the argument, considered the application and voted
to approve the 25-foot high telecommunications device.
6. On August2l,20t4, the board rendered its order granting design
review approval to permit the Alton R.oad pole pursuant to the design review
criteria set forth in section 118 of the LDRs and subject to conditions set forth
therein.
457
7 . The DRB consideration of this matter was characterized by procedural
errors, in particular its unabashed failure to follow the LDR.s as well as its own by-
laws and mles of orcler regarding publlc notice of the hearing at issue,
8. ARRP requests that the city commission either reverse the decision of
the DRB to approve the installation of the Alton Road pole or to remand the matter
to the DR.B for it to evaluate application to approve the installation of the Alton
Road pole consistent with the proper procedure as set forth in the land
deveiopment regulations and the DRB bylar,vs and rules of order.
9. Aside from the failure of the DRB to foliow the city requirements for
public notice of the hearing at issue in this request for review, ARRP also asserts
the following:
a. The failure to disclose ex-parte communications pursuant to
sections 2-5lL through 513 of the city code is a failure to provide
procedural due process and a failure of the DRB to observe the
essential requirements of law in its evaluation of the Alton Road
pole application.
b. The decision of the DRB to approve this application subject to
subsequent staff approval "consistent with the Design Review
Criteria and/or the directions from the Board," is a failure to
observe the essential requirements of law.
458
FAIL{.IR.E, TO FR.OI,TDE, PX.I'ELXC T{OTICE AS REQUXRED
tsY T'HE SECTXON z^TlE OF TFtrE LA}TD DEVEX,OP.\{EHT
REGULATXONS .{ND SECTION 8 TE{E DE,SIGN REYIEIV EOARD EY"
LA}VS ^4.I{'O R.ULES OF ORDER
8. Section L18-254b) states:
"At least 30 days prior to the [DRB] public hearing date,
a description of the request, and the date, tirne and place
of such hearing shaltr (i) be posted on the property, (ii)
advertised in a paper of general paid circulation in the
community, and (iii) given by mail to the owners of
record of land lying within 375 feet of property..."
(emphasis added)
9. The city failed to provide the LDR-required notice for its August 5,
2014 meeting because it held its meeting at 1:30 pm instead of the properly noticed
time of 8:30am contrary to the explicit requirements of section 1 18-254(b) of the
LDRs.
10. This direct violation of the LDRs is a failure of the DR.B to observe the
essential requirements of law.
11. Section LL8-76 of the LDRs requires that "[a]il meetings [of the DRB]
shatrl be open to the public and shall be conducted in accordance with the rules and
regulations adopted by the board." (emphasis added)
L2. The DRB By-Laws and Rules of Order state: "Regular meetings of the
Board are open to the public and shall be held from time to time in City Hall.
Change of meeting date/time may be at the call of the Chairperson and as the
Board may determine with a nnininnuur fifteen (15) days notice." (emphasis
added).
4
459
13. The board changed its meeling time less than 15 days prior to its
schedr-rled meeting contrary to the minimum 15-day notice required in its tsy-La,,vs
and Rules of Order and therefore is contrary to the LDR. requirement that DRB
meetings shall be conducted in accordance with the DRB's rules and regr"rlations.
14. This direct violation of the LDRs is a failure of the DRB to obserye the
essential requirements of law.
FAILURE TO DISCLOSE EX.PAR.TE COMMUNIC.A.TIONS AS
REQ{JIRED BY SECTTONS z-stt TTTROUGH 2.s13
OF TI{E [,AND DEYEI-,OPMENT R.EGUT,AT'XONS
15. Section 2-5lL defines a prohibited ex parte communication as any
written or oral communication with any member [of a city quasi-judicial board],
which may directly or indirectly influence the disposition of an application, other
than those made on the record during a public hearing.
16. Section 2-512(a) establishes a procedure "for all ex-parte
communication" with a board member of a quasi-judicial board such as the Design
Review Board. Section 2-512(a)(1) requires that "[t]he subject matter of any ex-
parte communication, together with the identity of the person, group or entity with
whom the communication took place, shall be disclosed and made a part of the
record on file with the city prior to final action on the matter."
17 , Section 2-5L2($$) requires that "[a]ny ex-parte communication or
activity regarding a pending quasi-judicial matter and not physically made a part of
the record on file with the city and available for public inspection prior to the
460
public meeting on the matter shall be orally stated and disclosed on the record at
the public meeting prior to the vote on the matter ..."
18. Based on information and belief, pripr to the Design Review Board's
hearings on the Alton Road pole application (August 5,2014) representatives of
the applicant Crown Castle NG East, Inc, met with and communicated with a
member or members of the Design Review Board regarding the disposition of the
Alton R.oad pole application.
19. No disclosure has been made of the subject matter of this
communication, or the identity of the person, group or entity with which the
communication took place.
20. According to section 2-512b) without such disclosure a presumption of
prejudice arising from thaVthose ex-parte communication(s) remains attached to
that communication. These non-disclosed ex-parte communications and the
attached presumption of prejudice effectively impacted ARRP' ability to obtain a
fair hearing and denied them procedural due process. Furthermore this direct
violation of the LDRs in the city code is a failure of the DRB to observe the
essential requirements of law.
6
461
IIIyIPR.OPER. DEX,EGATIOF{ TO DESXGN R.EVNEW ST,AFF
OF'DRts AUTX{OFTITY T'O EYAtr,U.A.TE A}{D APPB.OVE FI,TNI\S
PURSUA.NT TO DRE R.EVXEIY CR.ITERI,A,
21. The city commission has delegated certain authority to the DRB to
approve design revier,v applications subject to specific criteria set forth in section
118-251. This authority, spelled out in sections ll8-25l through 265, does not
allow the DRB to deiegate to design review staff its responsibility and duty to
make decisions based on those criteria. 1
22. Yet that is what the DR.B did when it approved the Alton Road pole
application. According to the final order of the DRB, it approved the project
subject to conditions, including:
"Revised elevation, site plan and floor plan drar,vings shall be
submitted to and approved by staff; at a minimum, such drawings
shall incorporate the following:
a. The exterior of the steel pole shall be powder coated finished
and the final exterior color selection shall be reviewed and
approved by staff consistent with the Design Review Criteria
and/or the directions from the Board.
' While section 1L8-260 authorizes the planning director to approve, approve with
conditions or deny an application for eight specific issues all associated with minor
public improvements, and rehabilitation, alterations and demolition of structures or
portions of structures, it does not authorize the DRB to delegate its authority to
approve an application (or any portion of an application) for new development
such as the Alton Road pole application.
462
23. $Ihile there is ar-rthority tor the DRB to prescribe conditions of
approval, there is no authority for the DRE to delegate its review and approval
authorlty to staff.
24. This condition transforms a design review decision into a staff-level
determination, without any authority in the LDRs and is therefore a failure of the
DR.B to observe the essential requirements of law.
WHEREFORE, ARRP requests: that the Miami Beach City Commission
revier,v the decision of the DRB and reverse it, or aiternatively, remand this matter
to the DR.B with instructions to the DRB to reconsider the approved application
after a properly noticing the hearing pursuant to the requirements set out in the
LDRs and City Charter of the City of Miami Beach.
Respectfully Submitted,
V/. TUCKER GIBBS, ESQ.
Co-Counsel for ARRP
P.O. Box 1050
Coconut Grove, W33L33
Tel (305) 448-8486
Fax (305) 448-0773
Email: tucker@ wtgibbs,com
RAFAEL E. ANDRADE, ESQ.
Co-Counsel for ARRP
1t 11 Lincoln Rd Suite 400
Miami Beach, FL 33139 -2439
Tel (305) 531-9s11
Email: ralph @randradelaw.com
463
EKE{IffiIH 66A]e
464
DHSICN REVIEVI/ BOARD
City of Miami Beach, Florida
MEETING DATE: August 05,2014.
FILE NO:23062
PROPERTY:Citywido Distributed Antenna System (DAS) Nodes: 1604 Alton Road
LEGAL:That portion of the west side of the right-of-way known as Alton Road
located at LATITUDE: North 25'47'20,649", LONGITUDE: West
80"08'28.655',
Florida State Plain Coordinates : X=9387 17 .491, Y=529948.984
The Application for Design Review Approval for the installation of a
Stealth Distributed Antenna System (DAS) node within the public right-of-
way at the following approximate location outside of historic districts:
{604 Alton Road.
IN RE:
ORDER
The applicant, Crown Castle NG East, lnc, filed an application with the City of Miami Beach
Planning Depadment for Design Review Approval.
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT,
based upon the evidence, informatlon, testimony and materials presented at the public hearing
and which are part of the record for this matter:
A. Based on the plans and documents submitted wlth the application, testlmony and
information provided by the applicant, and the reasons set forth.in the Planning
Department Staff Report, the project as submitted is inconsistent with Dosign Review
Criterla 5, 6, 8, and12 in Section 118-251of the MiamiBeach Code,
B, The project would be consistent with the oriteria and requirements of section 118-2il rt
the following conditions are met:
1, Revised elevation, site plan and floor plan drawings shall be submitted to and
approved by staff; at a minimum, such drawings shall incorporate the following:
465
Pago 2 of 4
It4eeting Date: August05, 2014
DRB File ttlo, 23062
b,
The exterior of the steei pole shall he powder coated finished and the final
exterior color selection shall be reviewed and approved by staff consistent
with the Design Reviow Criteria and/or tho directions from the Board.
A copy of all pages of the recorded Final Order shall bo scanned into the
plans submitted for bullding permit, and shall be located immedlately aftor
the front cover page of the permit plans.
Prior to the issuance of a Certificate of Occupancy, the project Arohitect
shall vorify, in writing, that the subJect project has been constructod in
accordance with the plans approved by the Plannlng Departmont for
Building Pennit,
The Design Revlew Board rotalns jurisdiction so that should any new
development or construction adjacent to the approved DAS Node require the
removal of this DAS Node, this approval is subject to modification or revocation
pursuant to a noticed hearing before the Design Review Board.
The Final Order shall be rocorded in the Public Records of Miami-Dade County,
prior to the lssuance of a Building Permit.
All equipment shall be servlced.and maintained by Crown Castle.
Satisfaction of all conditions is required for the Planning Department to givo its
approval on a Certificate of Occupancy; a Temporary Certificate of Occupancy or
Partial Ce(ificate of Occupancy may also be conditionally granted Planning
Departmental approval,
The Final Order is not severable, and if any provision or condition hereof is hold
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 ordet '
meets the criteria for approval absent the stricken provision or condition, and/or it
is approprlate to modify the remaining conditions or impose new conditions.
7. Tho conditions of approval herein are binding on the applicant, the property's
owners, operators, and all successors in interest and assigns.
8, Nothing ln this order authorizes a violation of the City Code or other applicable
law, nor allows a relaxation of any requlrement or standard set forth in the City
Code,
lT lS HEREBY ORDERED, based upon tho foregoing findings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for thls
matter, and the staff repori and analysis, which are adopted herein, including the staff
recommendations which were adopted by the Board, that the Application for Design Reviow
approval is GMNTED for the above-referenced project subject to those certain conditions
specified in Paragraph B of the Findings of Fact (Condition Nos. '1-B, inclusive) hereof, to whioh
the applicant has agreed.
2.
+-
o_
466
Page 3 of4
Meeting Daie: Auguot C5, 2014
DRB File No.23062
PROVIDED, the applicani shall build substantially in accordance with tho plans approved by the
Design Review Board, as cletermined by stafr, entitled "City of Miami Beach Crown Castle
Distributed Antenna System Node 5_7", as prepared by Crown Castle, dated Juno 12,2014,
modified in accordance with the conditions set forth in this Order and staff review and approval,
No buildlng permit may be issued unless and until all conditions of approval that must be
satisfied prior to permit issuance as set forth in this Order have been met, The issuance of
P.*tig! Review Approval does not rolieve the applicant from obtaining all other required
Municipal, County and/or State reviews and permits, including final zoning approval. lf adequate
handicapped accoss is not provided on the Board-approved plans, this approval does not mean
that such handicapped access is not required.
When requesting a building pormit, the plans submitted to the Building Department for permit
shall be conslstent with the plans approved by the Board, modified
-in
abcordance with the
conditions set forth in this Order.
lf the Full Quilding Permit for the project is not issued withln eighteen (18) months of the meeting
date at which tho original Design Review Approval was granted, the Design Roview Appror,al
will expire and become null and void, unless the applicant makes application to the Board for an
oxtension of time, in accordanco with the requirements and procedures of Chapter 118 of the
City Code; the granting of any such extension of time shall bo at the discretion of the Board, At
the hearing on any such application, the Board may deny or approve the request ancl modify the
above conditions or impose additional conditions, lf the Full Building Permit should expire for
any reason (including but not limited to construotion not commencing and continuing, with
required inspections, in accordance with the applicable Building Code), the Design Review
Approvalwill expire and become null and void.
ln accordance with Section 118-264 of the City Code, the violation of any conditions and
safeguards that are a part of this Order shall be deemed a violation of the land development
regulations of the Cily Code.
Dated thb
^.OBday
of fuou5T ,20 [q
STATE OF FLORTDA ), )ss
couNTY oF MIAMI-DADE )Jaft^uo,
Planning Director, Planning
The foreooino instrument was acknowledqed before me this
t4* a-.t--,r* 20 /2: by Tliomas R, Mo o n e5r,
DESIGN REVIEW BOARD
THE CIry OF MIANII BEACH, FLO
R. MOONEY, AICP
PLANNING DIRECTOR
FORTHE CHAIR
467
Page 4 cf 4
Meeting Date: August 05,2014
DRB File l'.1o. 23062
Departrnent, City of Miami Beach, Florida, a Florida fulunicipal Corporation, on behalf of tho
Corporation, He is personally known to me,
.+{lY.ll% TERESAMARIA'ts(-
^a . MYColllftflSsloN ]FF042188
i-bY[i.ff#-" EXP I BES: oece mbu 2, 2o li"4i*tbs 000d0d Tlru mdgd il014ry 00rel0ti
Approved As To Form:
City Attorney's Office:
Miami-Dade County, Florida
My commission expires
( F-).a.-r17
Filed with the Clerk of the Design Review Board on *& _Uit ( (J54,
FIPLAN\$DRB\DRB1 4\Aug1 4\DRB 23062 DAS NODE 1 604 Alton Rd.AUGl 4.fo.docx
dd,{
468
THIS PAGE INTENTIONALLY LEFT BLANK
469