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HomeMy WebLinkAbout2006-26157 Reso RESOLUTION NO. 2006-26157 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, SETTING A PUBLIC HEARING PURSUANT TO MIAMI BEACH CITY CODE SECTION 118-262, TO REVIEW A DESIGN REVIEW BOARD DECISION REQUESTED BY THE MIAMI DESIGN PRESERVATION LEAGUE AND AFFECTED PERSONS PERTAINING TO DRB FILE NO. 18871. WHEREAS, a process for review by the Mayor and City Commission of decisions rendered by the Design Review Board when requested by an applicant or any affected person has been established under Section 118-262 of the Miami Beach City Code; and WHEREAS, The Miami Design Preservation League and Affected Persons are requesting an appeal of the Design Review Board decision rendered on March 3, 2006, (DRB File No. 18871) pertaining to a development project at 929-939 Alton Road, which has been timely filed for such review. NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby schedule a public hearing on June 7,2006 to consider the review of a Design Review Board decision in DRB File No. 18871, pertaining to a development project at 929-939 Alton Road, as requested by the Miami Design Preservation League and Affected Persons. PASSED and ADOPTED this 11th day of April h~ fMLb CI Y CLERK Robert Parcher lj/J11M ~ T:\AGENDA\2006\apr1106\consent\DRB File No. 18871- RESO APR.doc COMMISSION ITEM SUMMARY Condensed Title: Setting of Public Hearing - Pursuant to Miami Beach City Code Section 118-262, to review a Design Review Board decision rendered on March 3, 2006, requested by the Miami Design Preservation League and Affected Persons (ORB File No. 18871) Key Intended Outcome Supported: I Not Applicable Issue: Pursuant to Miami Beach City Code Section 118-262, the Administration is requesting that the Mayor and City Commission schedule a Public Hearing on May 10, 2006 to review a decision of the Design Review Board pertaining to ORB File No. 18871, requested by the Miami Design Preservation League and Affected Persons. Item Summary/Recommendation: The Administration recommends that Adopt the Resolution scheduling a Public Hearing on May 10, 2006. Advisory Board Recommendation: The Design Review Board approved the subject application on February 7,2006. Financial Information: Source of Amount Account Approved Funds: 1 D 2 3 4 aBPI Total Financial Impact Summary: The proposed Resolution is not expected to have any fiscal impact. Cit Clerk's Office Le islative Trackin Jorge Gomez or Tom Mooney Assistant City Manager m ....,. MIAMI BEACH AGENDA nEM DATE C.7A If-I/-f.X, m MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM FROM: Mayor David Dermer and Members of the City Commission City Manager Jorge M. Gonzalez R%(lul~ April 11, 2006 TO: DATE: SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, SETTING A PUBLIC HEARING PURSUANT TO MIAMI BEACH CITY CODE SECTION 118-262, TO REVIEW A DESIGN REVIEW BOARD DECISION REQUESTED BY THE MIAMI DESIGN PRESERVATION LEAGUE AND AFFECTED PERSONS PERTAINING TO DRB FILE NO. 18871. ADMINISTRATION RECOMMENDATION Adopt the Resolution. ANALYSIS Pursuant to City Code Section 118-262, the Miami Design Preservation League and affected persons, are requesting an appeal of the Design Review Board decision rendered on March 3,2006, pertaining to ORB File No. 18871, for a mixed-use development project at 929-939 Alton Road (see attached letter). The Design Review Section of the Miami Beach Code allows the applicant, or the city manager on behalf of the city administration, or an affected person, Miami Design Preservation League or Dade Heritage Trust to seek a review of any Design Review Board Order by the City Commission. For purposes of this section, "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. Pursuant to Section 118-262 of the Miami Beach Code, the review by the City Commission is not a "de novo" hearing. It must be based upon the record of the hearing before the Design Review Board. Furthermore, Section 118-262 (b) states the following: In order to reverse, or remand for amendment, modification or rehearing any decision of the Design Review Board, the City Commission shall find that the Design Review Board did not do one of the following: 1) provide procedural due process 2) observe essential requirements of law, or 3) base its decision upon substantial, competent evidence. In order to reverse or remand a decision of the ORB, a 517th vote of the City Commission is required. April 11 , 2006 Commission Memorandum Appeal of ORB File No. 18871 Page 2 of 2 CONCLUSION The Administration recommends setting a public hearing on May 10, 2006 to review a decision of the Design Review Board pertaining to ORB file No. 18871. JMGITH/J~RM T:\AGENDA\2006\apr1106IconsentIDRB File No. 18871- MEM PH APR.doc MIAMI DESIGN PRESERVATION LEAGUE POST OFFICE BOX 190180, MIAMI BEACH, FLORIDA 33119-0180 (305) 672-2014 FAX (305) 672-4319 WWW.MDPl.ORG March 23, 2006 Honorable Mayor and Commissioners City of Miami Beach c/o Mr. Jorge Gomez, Director Planning and Zoning Department 1700 Convention Center Drive Mi~J~~afl1,ElQrici~_l31J2 RE: Appeal of Final Order, Design Review Board File No. 18871 This is an appeal of a Design Review Board (DRB) Final Order for File # 18871, rendered March 3, 2006, concerning a building design proposed for 929-939 Alton Road by applicant Alton Sobe, L.L.C. ("Applicant"). The appeal is taken jointly by Miami Design Preservation League and by affected persons who own historic properties adjacent to the subject property (together referred to as "Appellants"). Appellants seek reversal or remand for modification of the DRB Final Order. The undersigned request that this matter be placed on the city commission agenda to schedule a full hearing, as per Sec. 118-262(a) of the Code of the City of Miami Beach City (the "Code"). I. Standing A. Miami Design Preservation League (lvIDPL) is specifically authorized to appeal DRB decisions that adversely impaot historic preservation. Code Sec. 118-262(a) gives lvIDPL specific authority to "seek review of any order of the design review board by the city commission." MDPL is a non-profit organization whose mission is "preserving, protecting, and promoting the cultural, social, economic, environmental and architectural integrity of the Miami Beach Architectural Historic District and all other areas of the City of Miami Beach where historic preservation is a concern." MDPL's legislated standing enables it to appeal design proposals that are not in a designated historic district but impact historic preservation interests. This right is distinct from the separate review process for historic properties, which is governed by the historic preservation board. B. The affected persons Joining this appeal own properties directly abutting the proposed design that are designated as contributing buildings in the Architectural Historic District. Code Sec. 118-262(a) authorizes appeal by "affected persons," including those who own property within 375 feet of the subject property or who appear before the board The affected persons named in this appeal own properties on the same 900 block, which properties were identified by city staff as being within 375 feet. As noted on the record, no alley separates the subject property on Alton Road from historic properties on Lenox Avenue, so the properties of several Appellants directly abut the subject property and share a common boundary point or line. MIAMI DESIGN PRESERVATION LEAGUE (MDPL) is a non-profit organization devoted to preserving, protecting and promoting the cultural, social, economic and environmental integrity of the Miami Beach Art Deco District and throughout South Florida. MDPL was organized in 1976 and is the oldest Art Deco society in the world. APPEAL OF FINAL ORDER, MARCH 23, 2006 DESIGN REVIEW BOARD FILENo. 18871 ll. Statement of Factual Basis and Grounds for Appeal Outlined below is a statement of the legal grounds for appeal and the underlying factual basis, as established at hearings on November 15,2005 and February 7, 2006. Pursuant to Code Sec. 118-262(a), Appellants will provide DRB hearing transcriptions and a written statement or brief at least two weeks prior to the scheduled appeal. The property subject to this appeal is located in a CD-2 zoning district at 929-939 Alton Road, bordering the RM-l Flamingo Park Historic District. Applicant proposed a 5-story mixed-use building (a 6th story is underground) abutting 1- and 2-story buildings on Alton Road and 1- and 2-story designated historic structures on Lenox A venue._______ Appellants contend that each of the three legal grounds stated in Code Sec. 118-262(b) provides a sufficient basis to reverse or remand the Final Order, and that together these legal errors compel the commission to reverse the Final Order and require substantial changes to the proposed design. (1) The DRB failed to provide procedural due process when it approved last-minute design revisions and evidence which Appellants had no opportunity to review and rebut. According to the staff analysis, the application submitted in advance of the November DRB meeting failed to satisfy 9 of.17 design review criteria. At the hearing, Appellants and other members of the public contended that the application also failed to satisfy other review criteria besides those noted in the staff analysis, an assertion confirmed by revealing an undisclosed violation of criteria 5 related to minimum setbacks. The DRB continued the hearing to February as a result of various objections, asking the Applicant's representatives to seek compromise with Appellants and other residents at the December 5 meeting of the Flamingo Park Neighborhood Committee. Following a presentation of the revised application, the resident group resolved to seek legislative reforms in the CD-2 district. The Applicant subsequently provided additional design alternatives and Appellants responded to the alternatives in writing on January 5, suggesting further design changes and calling for a meeting to discuss them and seek compromise prior to the February DRB hearing. Appellants reiterated this request on February 2. The Applicant failed to respond to either request, though in fact the Applicant did submit further design changes at the February 7 hearing. According to the staff analysis, the revised application submitted in advance of the February DRB meeting failed to satisfy 8 of 17 design review criteria. At the hearing, Appellants and other members of the public contended that the application also failed to satisfy other review criteria besides those noted in the staff analysis, including criteria related to orientation and massing. During the hearing, however, the Applicant presented further revisions to its application, but did not provide copies of the changes to Appellants prior to or during the hearing. Further, the Applicant presented key evidence of its design change after testimony by the public, including an artistic photo-montage purporting to represent an accurate 2 APPEAL OF FINAL ORDER, MARCH 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 perspective of the massing as it faces the Flamingo Park Historic District. This visual perspective was a focus of attention by the DRB, but while the DRB relied on this evidence it was never entered on the record or provided for review by Appellants. Code Sec. 118-254(a) provides that at DRB hearings "interested persons shall have an opportunity to... rebut all evidence presented," but the Applicant's last-minute submissions deprived Appellants of their opportunity even to review, much less rebut, the merits of revisions. The unfairness of this circumvention cannot be overstated: an application that failed at least 8 of 17 review criteria was revised to meet staff s recommended conditions, thereby shutting the public out of the review process. Public comments addressed the application --------- itself, and not the adequacy or inadequacy of the Applicant's evidence or the staff's proposed conditions. (The potential importance of public criticism of staff views is exemplified by the setback error identified at the November DRB hearing.) The DRB erred by depriving Appellants and other members of the public of a full and fair opportunity to review and rebut the evidence, and to rebut staffs untested belief that the conditions would in fact satisfy the design review criteria. The logic of the DRB process in this case is circular: either the revisions proposed by staff were major, and thus the proposal should have been made available for thorough public review, or the revisions were minor and should not justify a change in findings for 8 of 17 design review criteria. (2) The DRB failed to observe essential requirements of law by allowing a mixed-use design that exceeds maximum commercial density. without adequately addressing its impact on design compatibility with abutting historic properties. The DRB has the power and duty "[t]o review all applications requiring design review approval for all properties not located within a designated historic district or not designated as a historic site." Code Sec. 118-71. As the record makes clear, however, the subject property in this DRB proposal is distinctive in that it directly abuts the Flamingo Park Historic District in a Yz-block deep buffer zone along Alton Road. The design review criteria must therefore be interpreted in a manner that respects the essential nature and character of the historic district, on a block of Lenox A venue consisting entirely of 1- and 2-story buildings designated as "contributing" architectural designs in the City's Historic Database. In exercising its review, the DRB misinterpreted the design criteria and failed in its duty to address the impact of the design on the essential character of the adjacent historic district, and the unique design considerations of adjacent historic buildings. The subject property is located in a CD-2 commercial, medium-intensity district whose development regulations specify a "maximum Floor Area Ratio" ("FAR") of 1.5. Code Sec. 142-306. For mixed-use buildings, however, a setback provision allows maximum FAR to be determined under another section of the Code, the RM-2 regulations, which permits an FAR of2.0. Code Sec. 142-307(d)(2); Sec. 142-216. The property is adjacent to an RM-1 low-intensity residential district with a maximum FAR of 1.25, Code Sec. 3 APPEAL OF FINAL ORDER, MARCH 23,2006 DESIGN REvIEW BOARD FILENo. 18871 142-145, and the directly adjoining properties are contributing historic structures with an actual FAR of less than 1.25. An Applicant's proposal to develop a mixed-use building, if approved, results in a 33% increase in density versus the commercial maximum (2.0 versus 1.5) and an FAR 60% over even the highest legal density in the adjacent historic district (2.0 versus 1.25). Appellants contend that the ability to circumvent the CD-2 maximum FARis a loophole in the Code, and that its use is not a matter of absolute right but should be subject to specific design review criteria. Because a mixed-use CD-2 application effectively bypasses the maximum FAR for CD-2, the DRB was obligated to examine whether a proposed mixed-use and FAR bonus is consistent with the design review criteria. The Applicant proposed a mixed-use building with approXimately 10,000 square feet more than a commercial building in the same location, along with the commensurate additional parking. To permit mixed-use adjacent to low-rise, contributing historic buildings, the DRB should have made a specific fmding that the increased use and density is appropriate in this location. The DRB made no such finding, and individual DRB members were clearly confused by their ability to reject a proposal if the additional mixed-use density were not compatible. One DRB member acknowledged that the project was "a horror show" for the adjoining historic properties, yet voted to approve the design. Various design review criteria require compatibility with the historic district in general (the "environment" and "surrounding area") and with the particular low-scale buildings that abut the Applicant's proposal (the "adjacent" structures or buildings). E.g., Code Sec. 118-251(6), (7), and (12). While the City Attorney for the DRB correctly opined that a proposal could be rejected if it fails to satisfy design criteria, several DRB members mis-characterized concerns related to the FAR loophole as issues solely of zoning, denying their relevance to the design review evaluation process. Thus, one DRB member called for changing the law that permitted use of the mixed-use loophole, but voted to approve the Applicant's design without a finding of compatibility. (3) The DRB failed to base its decision upon substantial competent evidence. relying on non-conforming buildings and ignoring expert testimony of design incompatibility. The use of evidence by the DRB reveals two critical failures that directly impacted the reasoning and decision of the board. First, the DRB ignored expert evidence from the City's own Planning Board that the FAR loophole described above is inherently incompatible with the adjacent historic district. Second, the DRB disregarded testimony calling for modification of height or massing of upper floors, and instead relied upon the existence of non-conforming buildings that are inappropriate for evaluating sensitivity to and compatibility with the contributing historic properties that in fact abut the proposal. Evidence from a Planning Board discussion on January 24, 2006 was transcribed by Appellants and entered into the record as expert testimony, to support Appellants' contention that the mixed-use FAR loophole and proposed massing is inherently incompatible with low-rise, contributing historic buildings. (See Attachment.) On this 4 APPEAL OF FINAL ORDER, MARCH 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 issue, the members of the Planning Board unanimously agreed with the comments of the Chair: I don't think reasonable people can disagree that the CD-2/RM-2 bonus is wholly incompatible with the adjacent zoning. The DRB failed to consider this evidence and instead followed the comments of the DRB Chair, who erroneously argued that this and similar comments from the Planning Board were irrelevant to a specific proposal. In the view of Appellants, the Planning Board's view is definitive evidence that the use of the mixed-use loophole is inherently flawed for a CD-2 property in these circumstances, - ------------anatlius musr5e rejecteaUnaertlie reVIew criten~CAra-iffiniliium-;ThePlanmng-Boara's----------- general view of zoning incompatibility established a prima facie case or presumption regarding the potential for incompatibility between the Applicant's design proposal and the adjoining historic district. It was incumbent on the DRB not to dismiss the Planning Board's comments out of hand, but instead to evaluate the specific circumstances in light of design review criteria. The comments of Planning Board members strongly support Appellants' view that the design's 5-story height and uniform massing are inappropriate adjacent to low-scale historic properties. (See Attachment.) The unanimous tone of such comments supports the contention of Appellants that the height and massing of the Applicant's proposal should have been scrutinized and reformed. For instance, Appellants noted that approximately 5,000 square feet of massing was displaced to the upper floor by a design change between the November and February meetings (the commercial space increased from I-story to double-height ceilings, creating internal volume that does not count against the total FAR). This criticism, and other testimony such as breaking up or stepping the mass, was not refuted or analyzed but was given too little consideration in the DRB discussion. Rather than address the project's full design impact on adjacent properties, the DRB erred as a matter of law by relying upon the Applicant's documentation of non-contributing buildings in the historic district to justify excessive and uniform height and massing of upper floors. In citing the existence of legally non-conforming buildings as evidence of historic compatibility, the DRB was in reality defining sensitivity to the historic district by reference to its non-historic exceptions. To the extent that the DRB should look for evidence of compatibility beyond the abutting properties, it was improper to use as a measure those buildings that preceded the historic district and exceed its current FAR and height limits. 5 APPEAL OF FINAL ORDER, MARCH 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 The undersigned respectfully ask the City Commission to. reverse the decision of the DRB, to eliminate the use of the mixed-use FAR loophole ~sm~rporated in this design, and to remand the proposal with instructions to evaluate specific ways that m:assing and height can be made compatible within the CD-2 development regulations. -P.r! ~S Bill Farkas, Executive Director Miami esign Pr a . n League (MDPL) .~ 1 Jac , Owner 91 Lenox Avenue #4 & #5 ~~ Mar eedle, Owner 914 Lenox enue #4 & #5 6 APPEAL OF FINAL ORDER, MARCH 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 ATTACHMENT: CIlY OF MIAMI BEACH PLANNING BOARD MEETING OF JAN. 24, 2006 Compatibility of CD-2/RM-2 bonus with adjacent historic properties [NB: The summary below and Board discussion that follows were formally entered into the record of the Design Review Board File #18871.] "I don't think reasonable people can disagree that the CD-2/RM-2 bonus is wholly incompatible with the adjacent zoning." Board Chair (emphasis in original remarks) "I think we cannot allow them to build the monstrosity that you are talking about." Board Member 2 "I think that the character of Alton Road needs to be preserved, by all means." Board Member 3 "I agree that we definitely need to minimize the scale and retain more of a street-level scale on Alton Road, and that that 4- or 5-story possibility on Alton Road is very dangerous and 1 wouldn't want to see that." Board Member 4 "I wanted to highlight that 1 think there are areas where reasonable people can disagree and 1 think there are areas that are just black and white.... "I think we do need to move this process forward... so we can have zoning-in-progress as quickly as possible...." Board Chair "I totally support the intent of what the commentary has been." Board Member 5 "I move." Board Member 6 "Second." Board Member 5 "OK, that's unanimous." Board Chair 7 APPEAL OF FINAL ORDER, MARCH 23, 2006 DESIGN REVIEW BOARD FILENo. 18871 Transcription of Planning Board Comments: Alton Road CD-2 Zoning in Relation to the RM-l Historic District City of Miami Beach Planning Board meeting of Jan. 24,2006 Verbatim Board discussion following close of public discussion, from 5:28-5:40 pm (NB: comments related to the adjoining RM-l zoning district are abridged.) Yictoilliaz,_Chair:_ltll.inkthatreasonahle_people_caadisagree_ahout[the..scove-oL--.----------~_ reform needed for two downzoning issues within the RM-I historic district]. I don't think reasonable people can disagree that the CD-2/RM-2 bonus is wholly incompatible with the adjacent zoning. I think that when you look at these boxes that Mark prepared, it shows you an incompatibility which is not only detrimental to the adjoining single-family neighborhood, it's detrimental to Alton Road. I don't think that we want to see - someone made the point - I don't think we want to see 5-story, mixed- use buildings lining Alton Road, I think Alton Road is essentially a commercial corridor and it should be a commercial corridor and encourage development consistent with that and a scale consistent with that. I am prepared personally to go with every single recommendation that the Flamingo Park neighborhood and the Historic Preservation Board went with. I am on board with [the two RM-I issues] and I am totally on board with moving forward with taking the height on that Alton Road corridor, just taking it to the CD-2 and eliminating the RM-2 loophole altogether, and considering whether it needs to be taken further within that. I wanted to highlight that I think there are areas where reasonable people can disagree and I think there are areas that are just black and white, but I think we do need to move this process forward. I can understand if people don't want to go with [downzoning reforms within the RM-I] and I can understand if people don't want to go down to CD-l on the Alton Road corridor, but I think that in order to solve the problem what we need to do is bring - give the staff some guidance, bring some regulations to the next meeting - bring the more restrictive regulations unless there is absolutely no support so that then we have the ability to liberalize them at the public hearing - and have a public hearing, give everybody an opportunity to be heard, and take action so we can have zoning-in-progress as quickly as possible... . [Discussion with City Attorney about legal impact of advertising more-liberal or more- restrictive zoning.] That's my feeling on it. Roberto. Roberto Sanchez: [Expresses disagreement on scope of reforms within RM-l district.] We really have to be reasonable, and I think: that on the Alton Road corridor, I think that I 8 APPEAL OF FINAL ORDER, l\ilARCH 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 agree with that. I think we cannot allow them to build the monstrosity that you are talking about and I'm in favor of doing that.... Diaz: So you're in favor of doing everything except [one of the two RM-l reforms]. OK, how do other board members feel? Jorge Kuperman: I'm in favor of that too, I think that the character of Alton Road needs to be preserved, by all means.... [Expresses agreement with only one of two RM-l reforms]. Cathy Leff: The character of Alton Road? You were saying the character of Alton Road? Diaz: Yes, he's saying to address the CD-2 zoning and RM-2 loophole... [and address one of the RM-l issues]. Marlo Courtney: First off, I think that we have to do everything we can to preserve this fabulous Flamingo district... [Expresses agreement with both RM-l reforms.] As far as the CD-2, I agree that we definitely need to minimize the scale and retain more of a street-level scale on Alton Road, and that that 4- or 5-story possibility on Alton Road is very dangerous and I wouldn't want to see that. Diaz: OK, so we've got so far...-this is why, and we can keep going around, but my feeling is we're not taking final action on this. This is a workshop.. . [discusses rationale for considering all issues at full hearing]. I'll entertain a motion that we ask staff to bring at the next meeting a set of regulations in order to address the three issues... [including both RM-l issues] and eliminating the RM-2 loophole and addressing the height on Alton. Again, you may want to go to CD-2, you may want to go to CD-lor whatever staff wants to recommend but the Board is giving you definite guidance that we want the RM-2100phole eliminated at a minimum and if you want to bring other suggestions forward you do so at the next meeting. Are you OK with that George? OK. Leff: I just want to ask a question. I mean, I totally support the intent of what the commentary has been. My only question is regard to [one of the RM-I issues. Followed by discussion of this issue.] Joy Malakoff: I move. Diaz: The motion has been made by Joy, is there a second? Leff: Second. Diaz: Seconded by Cathy. All in favor please indicate by saying "aye". [Ayes spoken.] Opposed? OK, that's unanimous. 9