R9O-Discuss- Appeal Decision Of Special Master In Case No- HPSM 14-003r -e. ^e.f/-.^tE,
OFFICE OF THE C Y MANAGER COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Me of the
FROM: Jimmy Morales, City Manager
DATE: November 19,2014
SUBJECT: Special Master Case No:M 14-003 Appeal by the Miami Design
Preservation League, lnc., Appellees: Miami Beach Community
Church, lnc., South Beach Tristar, LLC, City of Miami Beach Address:
1620 Drexel Avenue, Miami Beach
Background
An application for construction of a new two-story retail store, with amenities was
proposed for the vacant northeastern corner of 1620 Drexel Avenue site of the
contributing (historic) Miami Beach Community Church structure. The Miami Beach
Community Church (Church) was the original applicant. The application was later
amended to add lessee Tristar as a co-applicant. The application was approved
unanimously by the Historic Preservation Board during its May 20,2014 hearing. The
City Commission originally considered seeking reconsideration, and ultimatelydeclined
to do so, provided the Church provide certain safeguards for the preservation and
restoration of the church. Within the required time period for a rehearing the Miami
Design Preservation League, lnc. (League), filed a request for rehearing before the
Historic Preservation Board. Ultimately, the Board denied the rehearing request.
Thereafter, the Miami Design Preservation League, lnc., appealed the Historic
Preservation Board decision to deny rehearing to the Historic Preservation Special
Master. On Halloween, October 31 ,2014, the Special Master issued a two part order:
(1 ) affirming the unanimous May 20, 2O14 decision of the Historic Preservation Board
authorizing the Church's application forthe Certificate of Appropriateness to construct;
and (2) reversing the August18,2014 denialof the League's rehearing request before
theCity'sHistoricPreservationBoard. AcopyoftheorderisattachedheretoasExhibit
A.
Agenda nem RQ 0
962
Special Master - Community Church Appeal
November 19,2014 Page 2 o'f 2
Pursuant to Section 1 18-357(b)(4), of the City Code, the decision of the Special Master
may be appealed by a petition for writ of certiorari to the Circuit Court by the City
Manager. The property owner/applicant(s) may separately file an appealto the Circuit
Court. However, the City has a separate right to do so.
Recommendation:
The City Manager is seeking direction whether the Mayor and City Commission
would like for the City to appeal the decision of the Special Master. A copy of the
Special Master order is enclosed for your rev
963
BEFORE THf, SPECIAL MASTER
CITY OF MIAMI BEACH, FLORIDA
CASE NO.: HPSM-I{-003
IHPB FrLE NO. 74241
IN RE: MIAMI BEACH COMMUNITY CHURCH
1620 DREXEL AVENUE,
MIAMI BEACH, FLORIDA,
DE_CI$ION_AND O_BDER
THIS IS AN APPEAL bY MIAMI DESIGN PRESERVATION LEAGUE, INC.
("MDPl"Xhereinafter the "Appellant") from: (a) an Order of the Historic Preservation
Board (hereinafter the "Board"), rendered May 20, 2014, granting a Certificate of
Appropriateness to Appellee/Applicant, MIAMI BEACH COMMUNITY CHURCH,
INC. ("MBCC")' "for the construction of a new 2-story commercial building with active
roof deck, including the demolition of the existing raised terrace located at the north
elevation facing Lincoln Road, the demolition of the existing site wall, and partial
demolition of the existing 2-story building located along Drexel Avenue." [HPB Order
(May 20, 2014), p. l.l; and (b) an Order of the Board, rendered August 18, 2014, denying
MDPL's Petition for Rehearing.
The property under consideration, with a sfieet address of 1620 Drexel Avenue, is
located at the Southwest corner of Lincoln Road and Drexel Avenue. [Staff Report
t SOUTH BEACH TRISTAR, LLC ("TRISTAR") also appeared in this proceeding and
identified iself, as an "applicant" in the joint MBCC/TRISTAR Responsive Brief.
IMBCC/TRISTAR Responsive Briefi, p. 1]. ln addition, the Application, appended to the
CITY's Responsive Brief, shows it being signed not only by MBCC, but also by
TRISTAR, as an Applicant, i.e., "1, David Edelstein being first duly sworn, depose and
say that I am the Managing Member of South Beach Tristar, LLC and as such, huve been
uuthort:ed by such ent ity to lile this appficaion . . . ." .
EXHIBIT
I
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DECISION AND ORDER
CASE NO.: HPSM-l+003
PAGE 2
(5ll3ll4), p 3l I The property was deeded to the Congregational Church Building
Society in 1920 by Carl Fisher's Alton Beach Realty Company. [Staff Report (5tl3ll4\,
p. 31. Shortly thereafter, architect Walter De Garmo was commissioned to design the
City of Miami Beach's first church building on the site. [Staff Report (5/13/la), p. 3].
"The [resulting] one-story, Spanish Mission style structure is constructed of concrete with
decorative cast-stone pilasters and is one of the most highly contributing buildings ever to
be constructed on Lincoln Road." [StaffReport (5/l3i l4), p. 3].
After consideration of the record of the proceedings below, including the
transcrips of the Board's hearings conducted on May 13,2014, and August 12,2Ol4,and
the written and oral arguments of the parties, the decision of the Special Master is as
follows:
A.
STANDARD OF REVIEW
pursuant to Section I l8-537(bX2) of the City Code of the City of Miami Beach,3
in order for the Special Master to reverse, amend, or modifu a decision of the Board, the
Special Master shall find that the Board did not either: (a) provide procedural due
process; (b) obsewe essential requirements of law; or (c) base its decision upon
substantial competent evidence.
'The StaffReport is adopted as part of the Order of the Board. [See HP Order (51?0114),
p. 4l
I Rli Section references are to the Code of the City of Miami Beach (hereinafter the
"Code") unless otherwise indicated.
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DECISTON AND ORDf,R
CASI NO.: HPSM-l+00J
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B.
BACKGROUND Rf,,GARDING
THE MOTTON FOR R,f,HEARING
On December 11,2013, MBCC and TRISTAR entered into a Letter of Intent
regarding a proposed Ground Lease for an approximately 7,000 square foot parcel of
vacant land located at the corner of 1620 Drexel Avenue, Miami Beach, FL. [See MDPL
Appendix, Exhibit C]. The Letter of lntent included a non-refundable "donation" to
MBCC, in the amount of $500,000, subject only to the condition that Congregational
Approvalbe obtained by January 31,2014. [See MDPL Appendix, Exhibit C].
On May 13, 2014, after hearing, the Board's granted MBCC/TRISTAR's
Application for Certificate of Appropriateness. On June 5,2014, MDPL filed its Motion
for Rehearing. [See StaffReport (8ll7l1tr-); and MDPL's Motion for Rehearing].
On August 11,2014, the day prior to Board's meeting to consider MDPL's
Motion, the Miamt llew T'imes published an article concerning the development and the
$500,000 donation. [Transcript (8ll2il4), p 28]. Later that day, Rev. Harold Eugene
Thompson, Jr., Senior Pastor of the MBCC, delivered a letter to the Board Members,
dated August I l, 2014, in which he attached the aforementioned Letter of Intent, and
page 2 of the purported Lease between MBCC and TRISTAR. IMDPL Appendix,
Exhibit Cl.
On August 12, 2014, the Board considered, at a public quasi-judicial hearing,
MDPL's Motion for Rehearing. [Transcript (08/l2ll4)]. There were seven (7) members
of the Board present ar the meeting. [Transcript (8/12114), p. 2]. At the commencement
966
DICISION AND ORDER
CASE NO.: HPSM-l+003
PAGE 4
of the hearing, the Board's attorney, announced the procedure, a "bifurcated" two step
process, for handling the Motion for Rehearing. [Transcript(8ll2ll4), p. a].
During the first step of the process, the Board would make an initial determination
as to whether the petition satisfies one of the two rehearing criteria, i.e.,: (l) there is
newly-discovered evidence likely to be relevant to the decision of the Board; or (2) the
the Board has overlooked or failed to consider something which renders the decision
issued erroneous. [Transcript (8/12l14), p. 4]. The Board's attorney specifically stated
that during this first step, "... we're confined to the petition itself. No evidence outside
the petition should be presented to the board. It's a determination of whether the petition
iself satisfies the requirements." [Transcipt(8ll2ll4)' pp 4-5].
During the seond step, if the Board decides that the petition satisfies the
requirements in the first step, the Board would proceed with the rehearing. [Transcript
(8/12114), p. 51.
After hearing the presentations of MDPL and MBCC, the Board deliberated the
merits of MDPL's Petition, and the Chairman kept a tally of how many members of the
Board were in favor and against a rehearing: "We have four possible yes's." [Transcript
\8ll2ll4), p. 441. Unsure of the numerical vote required for a rehearing, the Chairman
requested the opinion of the Board's attorney, who opined that "a guorum, which is four
members is necessary for all votes." [Transcript (8ll?ll4], p 46].
The Chairman then proceeded to request a motion and a second; however, at the
insistence of the Board's attorney, the Chairman demanded that each member voting in
favor of rehearing speciry the grounds upon which that individual member's vote was
967
DECISIOI{ AND ORDER
CASf, NO.: HPSIYT-l+003
PAGE 5
based. [Transcript (8112114), pp. 52 (member Bradley), 53 (member Manning), 55
(member Bailleul)]. The Board's a$orney rationalized that he needed the statement of
each Board member, as to how the code requirements were met, but only from those
members who voted in favor of rehearing, "in order to defend the decision on rehearing."
[Transcript (8ll?ll4), p. 5l] MDPL's attorney objected to this procedure, rvhich
objection the Chairman ovemrled. [Transcript(8ll2ll4\, pp. 52-53]. The finalvote was
four to three against rehearing. [Transcript (8ll2ll4), pp- 55]
Finally, at the conclusion of the voting, a member of the public, Frank Del
Vecchio, requested an opportunity to address the Board on the rehearing, which was
denied on the basis that the Board did not reach the second phase of the "bifurcated"
hearing, and the first phase was "not open for public hearing". [Transcript (8/12114), pp.
s6-s7l
C.
THE FAII,IIRE, TO PERMIT PTIBI,IC COMMENT/TESTIMONY DTIRING THE
CONSIDERATION OF THE PETITION FOR REHEARING
MDPL's first claim is that the Board denied it due process at the August 12,2014
hearing when the Board declined to permit public commenUtestimony from Mr. Del
Vecchio. [See Transcript (8112/14), pp. 55-57.]
Section 2-513, entitled, "Conduct of hearings", provides in pertinent part:
(c\ (londuct oJ' heuring.
( I ) The initial order of the hearing shall be as follows:
Perticinants in support of the spplicttion shall prgent
their testimony end sny evidence.
g.
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DECISION AND ORDER
CASE NO.: HPSM-l+003
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After the presentation in favor of the matter, the hearing shall
proceed as follows:
d. Any other member of the public may testify rnd
present evidencC-es is subiect to cro$ examination.
[bolding and underlining added].
Fu rthe rmore, Section lL$' LA7, entitled, Meeti ngs, provides:
The historic preservation board shall meet at the call of the
chairperson or the planning director in order to carry out the
provisions of this division. All meetings shall be open to the public
and shatl be conducted in accordance with the rules and regulations
adopted by the board. Members of the public shall have the right
to iddrcss the board and to present evidence. [bolding and
underlining addedl.
Based on Sections 2-SL3 and 118-107, it was error to refuse to allow Mr, Del
Vecchio to address the board. Although the Board was free to adopt a "bifrtrcated"
rehearing process, having done so, it was required to allow the public to address the
board at each phase of the process, lesL as occurred to Mr. Del Vecchio, the public
not get the opportunity to address the Board.
Despite the error, the record does not reflect that MDPL's counsel made a
contemporaneous objection at the time the Board's attomey, with the consent of the
Chairman, opined that Mr. Del Vecchio was not permitted to address the Board.
As conectly noted in MDCCiTRISTAR's Responsive Briel the scope of
appellate review under Florida law, including appeals from quasi-judicial boards, such as
(2)
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DECISION AND ORDER
CASE NO.: HPSM-l+003
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the Historic Preservation Board, is generally limited to those issues that were "preserved
with a sufficiently specific objection below." Clear Channel Communicatiorts, Inc v.
Ctty oI N. Bay Village, gl I So.2d 188, 190 (Fla. 3'd DCA 2005); and Firsl City Sav.
Corp. o/Tr,r.v. S & B Partners,548 So.2d 1156, ll58 (Fla.5'hDCA 1989|arguments
not raised before quasi-judicial board may not be considered on appeal).
Thus, on the issue of declining to allow a member of the public to testily, I find
that the issue was waived by not being properly preserved by MDPL at the Board hearing
below.{
D.
THIE ["AIL-U-RE- IQ DISCLOSE
THf,, S5@_,@ UqNATIoN
MDPL's second claim relates to the failure of MBCC/TRISTAR to disclose,
pursuant to Section I t8-31, not later than the commencement of the Board's hearing on
May I 3,z)l4,the $500,000 "donation"t to MBCC.6 This Section provides:
a t specifically reiect and disagree with MDCC/TRISTAR's argument that MDPL did
not have standing to raise this issue.
s ln a Letter of tntent, dated December LL,2073, signed by both MBCC and TRISTAR,
in a section entitled, "DONATION", the $500,000 payment by TRISTAR to MBCC is
referred to as a non-refundable "donation", subiect only to Congregational approval
by f anuary 3L, Z0L4; the $500,000 payment was not denominated prepaid rent in
ttrai tettei. Prepaid Rent was separately provided for in that leBer in the amount of
$3,500,000, in a section denominated "RENT"' The Letter of Intent was appended
without objection to MDPL's Initial Brief as Exhibit "C"'
6ln the consideration of this argument, the Special Master declines to consider, and
strikes from the record, Exhibit B of MDPL's lnitial Brief, a Miami New Times
newspaper article, that was apparently never actually distributed to the Board at or
prior to the hearing on August 12, 2014, although it was referred to by
itlACCTtnfSTAR in their presentation to the Board on that date. [Transcript
(8/r2/14), p.281.
970
DECISION AND ORDf,R
CASE NO.: HPSM-l,l-003
PAGE 8
Section I l&31. - Disclosure requiremenL
Eech person or entity requesting epproval- relief or other action from
lew ion boerd (i
hearine(s). eny consideration provided or committed. directly or on its
behalf. for an agreement to support or withhold obiection to the requested
approval. relief or action- excluding from this requirement consideration for
legal or design professional servic.es rendered or to be rendered' The
diiclosure shall: (i) be in writing, (ii) indicat€ to whom the consideration has ben
provided or committed, (iii) generally describe the nature of the consideration,
and (iv) be read into the record by the requesting person or entity prior to
submission to the secretaryiclerk of the respective board. Upon determination by
the applicable board that the foregoing disclosure requirement was not timely
satisfied by the person or entity requesting approval, relief or other action as
provided above, then (i) the application or order, as applicable, shall immediately
be deemed null and void without further force or effect, and (ii) no application
from said person or cntity for th subject propcrty shall be revicwed or considcred
by the applicable board(s) until the expiration of a period of one year after the
nullification of the application or order. It shall be unlawful to employ any
device. scheme or artifice to circumvent the disclosure requirements of this
section and such circumvention shall be deemed a violation of the disclosure
requirements of this section. [underlining and bolding added].
On its face, but without deciding the point (see discussion below), Section 1 lE-31
seems to require that TRISTAR (an entity requesting approval from the Board), disclose
at the commencement of the public hearing on May 13,2014 (on its Application for a
Certificate of Appropriateness), the $500,000 donation (consideration) by TRISTAR to
the MBCC (for an agre€ment to support or withhold objection to the requested approval).
l.
Waiver
As MBCC/TRISTAR appropriately point out in their Responsive Brief, MDPL
also failed to raise this argument both in their Petition for Rehearing, dated June 6, 2014,
and during the hearing before the HP Board on their Motion for Rehearing held on
971
DECISION AND ORDER
CASE NO.: HPSM-l+00J
PAGI 9
August lZ, 2014. tn considering whether MDPL waived this issue, I consider the
fol lowing circumstances.
First, the fact of the donation was not publically disclosed until the Miumi l'lew
'l'imes published its article on August 11, 2014, the day pnor to the HP Board's Hearing
on August 12,2Ol4 [see Transcript, p. 28]. Thus, MDPL could not have known about
this lack of disclosure in time to raise it three (3) months earlier at the May 13' 2014
hearing, nor include it in their Petition for Reheanng filed two (2) months earlier on June
5,2014.
Second, at the commencement of the Board's hearing on MDPL's Motion for
Reheanng on August 12,2014, at the invitation of the Chairman, the Board's attorney
announced the procedure that would be followed, including restricting both
MBCC/TRISTAR and MDPL to a "five minute presentation" "confined to the petition
itself." [Transcript (8ll2ll4), p. 4]. Indeed, the Board's attorney went on to specifically
state: "No evidence outside the petition should be presented to the board." [Transcript
(gll}tl4), p 4l Although this advice was cartainly consistent with the rehearing
procedure specified in Section I l8-537(a), it was inconsistent with the fundamental duty
imposed on the HP Board under Seclion ll8-31 to enforce required disclosures. In
essence, the Board shut iS eyes to the Section I 18-31 issue" and mu"led MDPL from
raising it too.
Thus, the Special Master finds that the failure of the Board to consider the Section
ll8,3l issue .saa sponte, and to further so confine the parameters of the hearing to
prevent MDpL from raising the issue, constitutes "fundamental error" amounting to a
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DECISIOI\ AND ORDER
CASE NO.: HPSM-t+003
PAGE IO
denial of due process. Under these circumstances, it is appropriate for, and within the
discretion of, the Special Master to consider MDPL's argument on the Section ll8-31
issue for the first time on appeal. Ilithen v. Blomberg, 4l So.3d 398, 400 (2d DCA
201gX"[a] denial of due process, if proven, constitutes fundamental error, which may be
challenged for the first time on appeal."), citing Verizon Bus Networ* Sen's', Inf. v'
Dq't of Corrs., ggg so.2d 1148, ll5l (Fla. l" DCA 20O8Xconsidering merits of
appellant's due process claim that it was denied the right to have the case considered by
an impartial tribunal despite the fact that argument was not made below).
2.
Applieability
MBCC/TRISTAR and the CITY both argue that section I l8-31 does not apply to
any situation except where consideration is provided by an applicant to a third party, such
as a neighbor or representative gfoup, to support (or not oppose) an application.
IMBCC/TRISTAR RESPONSM BRIEF, p l8l. The Special Master believes that the
language of Section I 18-31 requires the Board, in the first instance, to determine if
Section I I 8-31 applies to the situation at hand, and if Section I l8-31 has been violated.
E.
REQUTBING B,9ARD ME,LI-DEBS Tg $IATE- rHE BASIS
SUPPQRTDIG TIIET-R VQIE EC)B B-EEEARING
Again, Section ll8-107 provides that "all meetings ... shall be conducted in
accordance with the rules and regulations adopted by the board." The Board has adopted
..By-Laws - Rules and Regulations Governing Procedure". Under ARTICLE Il'
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DECISION AND ORDER
CASE NO.: HPSlll-l+003
PAGE II
entitled, "GENERAL RULES"" Section 2, entitled, "Rules of Order", the By-Laws
provide:
The Bpqfd -hereb,y ldopt!, incorporates by reference and deems
as being inserted herein Bqb-ef$,Rgks*-o-tQ1-der, as amended or revised
fqr Jbe- gonduct, prsctice lpd pr-qged-Ulg 9f ils helnUgp' [bolding and
underlining addedl.
Robem Ral15 of Order does not contemplate a member being required to explain
the grounds supporting a member's vote; to the contrary it contemplates the opposite. In
the Chapter entitled, "Voting Procedure", the following rule is provided:
RULE AGAINST EXPLANATION BY MEMBERS DURING VOTING.
A member has no right to "explain his vote" 4Ptng voting, which would
be the same as debate at such time. [RONf, 0f ed), p' 395,1' 4-71'
Furthermore, by demanding a Board member justit his vote in favor of reheanng
(while not simultaneously requiring Board members voting against rehearing to similarly
justiry their vote) had the disturbing appearance that the Chair and Board Attorney were
pressuring Board members into voting against rehearing'
Although MDPL properly preserved this error during the hearing by voicing an
objection, the error was not raised in their briefs. Generally, a failure to argue in a brief a
point or position precludes an appellate court's consideration of the question lCity ot
Miami v. Steckloff,l I I So.2d 446 (Fla. 1959)l; however, an appellate court may address
sua sponte a fundamental error which is apparent on the face of the record. Stue v. D.C.,
2g So.3d I167, I 16g, n. 2 (Fla. 4"' DCA 20l0x"Although neither party raised this issue
either in the fial court or on appeal, an appellate court may address suu sponle an elror
which is apparent on the face of the record."),citing Goss v. State,398 So.2d 998,999
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DECISION AND ORDER
CASE NO.: HPSM-l+003
PAGE I]
(Fla. 5e DCA l98lX"Sza sponte, we find fundamental error in the conviction for the
felony murder count, which issue we address notwithstanding appellant's failure to raise
it either in the trial court or on appeal.")
The Special Master finds that this error constituted a denial of due process and
was, "fundamental error."
IT IS THEREFORE ORDERED that the appeal of the Appellant is granted in
part.7 The Order of the Board, dated May 20,2014, is left undisturbed. The Order of the
Board, dated August 18, 2014, is REVERSED, and this cause is remanded to the Board
with instructions to: (a) conduct a public hearing, consistent with this opinion, at which
members of the public may be heard; (b) determine whether Section I l8-31 applies, and,
if so, whether at the commencement of the Board's hearing of May 13, 2014, the
requirements of Section I l8-31 were 'timely satisfied by the person or entity requesting
approval": and (c) consider de nowtMDPL's Petition for Rehfng.
DATED this 3lst* day of October, 2014.
Copies provided to:
Stuart Reed, Esq.
Michael Larkin, Esq.
Gary Held. First Asst. CitY AttY.
7ln the appeat ln re Barbtzon Hotel, the Special Master adopted as a rule of
procedure ln all cases, Rule 9.330 [a) and (b), Fla. R. of Appellate Procedure'
Accordingly, the Special Master will entertain motions for either rehearing or
clarification within the time limits of that Rule.
975