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HomeMy WebLinkAbout2006-26233 Reso RESOLUTION NO. 2006-26233 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,GRANTING AN APPEAL BY THE MIAMI DESIGN PRESERVATION LEAGUE AND AFFECTED PERSONS TO REVIEW A DESIGN REVIEW BOARD DECISION PERTAINING TO DRB FILE NO. 18871, LOCATED AT 929-939 ALTON ROAD, AND REMANDING TO THE DESIGN REVIEW BOARD FOR FURTHER PROCEEDINGS. WHEREAS, the subject application for Design Review Board approval of a project at 929 Alton Road consists of a mixed-use project with commercial space fronting Alton Road at the ground level and vehicular access to the parking garage at the northwest comer of the site; a residential lobby is located at the southwest comer; parking is located in one fully sub-terranean basement level, as well as on the second floor; residential units are located on floors 3-5, and an active roof deck is proposed with a pool; and WHEREAS, the project was first considered by the Design Review Board on November 15, 2005, and was continued to a date certain of February 7, 2006, in order to address the concerns expressed by the Board and staff; and WHEREAS, on February 7,2006, the Board approved the project; and WHEREAS, pursuant to City Code Section 118-262, the Miami Design Preservation League and affected persons timely filed an appeal of the Design Review Board decision rendered on March 3,2006; and WHEREAS, such Code section 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 that section, "affected person" means 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; and WHEREAS, pursuant to Section 118-262, 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) provides: 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; and WHEREAS, in order to reverse or remand a decision of the DRB, a 517th vote of the City Commission is required; and .. WHEREAS, Section 118-262(a) requires the appellants to file with the City Clerk a written transcript of the hearing before the Design Review Board two weeks before the scheduled public hearing on the appeal; the transcript and associated material were transmitted to the Mayor and City Commission via LTC; and WHEREAS, on April 11, 2006, the City Commission set the hearing for this appeal to be held on June 7, 2006, and the City Clerk was directed and did notice such hearing; and WHEREAS, on June 7, 2006 the City Commission heard the parties, and pursuant to the argument given, the written materials submitted, and having been duly advised in the premises determined that: 1. The appellants objected to the applicant's late submittal of plans to the Design Review Board reflecting changes to the plans; and 2. The appellants objected to certain members of the Design Review Board disagreeing with the opinion of the Assistant City Attorney advising the Board that the Board had authority under the City Code to require a reduction in floor area if the Board were to find that the project was not compatible as provided for in the design review criteria; and WHEREAS, these objections resulted in, respectively, 1) a denial of due process, and 2) a departure from the essential requirements of law, such that the appeal should be granted and remanded to the Design Review Board for further proceedings; and WHEREAS, the motion to grant the appeal was made and seconded, and approved by a vote of7-0. NOW THEREFORE BE IT RESOLVED THAT the Mayor and City Commission hereby grant the appeal of the Miami Design Preservation League and certain affected citizens as set forth above, the Design Review Board Order in file no. 18871 is hereby vacated, and this matter is remanded for further proceedings by the Design view oard. PASSED AND ADOPTED, this 7th day of ,2006. ~rP~ CITY CLERK Robert Parcher APPROVED AS TO FORM UAGE EXECUTION David Dermer Executed and filed with the City Clerk's Office on June 27, 2006. ~ DATED F:\atto\HELG\Resolutions\Appeal from DRB remand reso.doc 2 ~ MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139. www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor David Dermer and Members of the City Commission FROM: City Manager Jorge M. GOnZaleZ) ~ DATE: June 7,2006 {/ v D SUBJECT: A REQUEST BY THE MIAMI DESIGN PRESERVATION LEAGUE AND AFFECTED PERSONS TO REVIEW A DESIGN REVIEW BOARD DECISION PERTAINING TO ORB FILE NO. 18871. ADMINISTRATION RECOMMENDATION Affirm the decision of the Design Review Board. 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 DRB 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 DRB, a 5/ih vote of the City Commission is required. Agenda Item R q F Date '-7-0t;, June 7, 2006 Commission Memorandum Appeal of ORB File No. 18871 Page 2 of 3 Section 118-262(a) requires the appellants to file with the City Clerk a written transcript of the hearing before the Design Review Board two weeks before the scheduled public hearing on the appeal. The transcript and associated material were transmitted to the Mayor and City Commission, The subject application consists of a mixed-use project with commercial space fronting Alton Road at the ground level and vehicular access to the parking garage at the northwest corner of the site; a residential lobby is located at the southwest corner. Parking is located in one fully sub-terranean basement level, as well as on the second floor. Residential units are located on floors 3-5, and an active roof deck is proposed with a pool. The project was first considered by the Design Review Board (DRB) on November 15, 2005, and was continued to a date certain of February 7, 2006, in order to address the concerns expressed by the Board and staff. Specifically, shortcomings were noted regarding the compatibility of the pedestal portion of the project with the low scale buildings to the immediate east, located within the Flamingo Park Local Historic District. The Board also requested that the applicant's architect meet with affected property owners adjacent to the subject site to try and address their issues and concerns. The project came back before the Board on February 7,2006 and was approved. At that meeting, the DRB determined that the applicant had successfully addressed all of the previously expressed issues and concerns and that the project is well within the scale, context and architectural character of the immediate streetscape along Alton Road. The Board also required that the pedestal portion of the project be setback a minimum of 15 feet from the rear property line, in order to adequately buffer the low scale historic district to the immediate east. A review of the transcripts for all of the Design Review Board hearings on this matter indicates that the DRB observed the essential requirements of law, made its determinations based on substantial and competent evidence, and afforded all parties involved due process. The record also demonstrates that the applicant has proposed a project that falls entirely within the allowable limits of the Land Development Regulations of the Code of the City of Miami Beach. The DRB's review of the project was based upon the Design Review Criteria in Section 118- 251 of the City Code. This section of the Code specifies that design review shall encompass the examination of architectural drawings for consistency with the criteria listed in Section 118-251, with regard to the aesthetics, appearances, safety, and function of any new or existing structure and physical attributes of the project in relation to the site, adjacent structures and surrounding community. In addition to the elevations, site plans, floor plans and landscape plans submitted by the project applicant, the Board had before it the recommendation for approval with proposed conditions presented by its professional staff in the form of a comprehensive staff report, as well as the expert testimony of the applicant's architect. Finally, the Board held a public hearing during which members of the public testified and presented evidence. Based upon all of the evidence submitted, the Board determined that the proposed project would meet the Criteria for Design Review Approval, if the conditions enumerated in the Final Order are met and, therefore, approved the project. June 7, 2006 Commission Memorandum Appeal of ORB File No. 18871 Page 3 of 3 CONCLUSION The Administration recommends that the Mayor and City Commission affirm the decision of the Design Review Board (DRB), wherein it approved DRB File No. 18871 pertaining to the development project at 929-939 Alton Road. JMGITH/JGGITRM T:\AGENDA\2006~un0706\Regular\DRB File No. 18871- MEM JUN.doc I C , f\1 c. (f:1l. ~, 01- PI c. E JU tJE I) wof:, L>0C-4 ~ " l ~ 4 May 23, 2006 Honorable Mayor and Commissioners City of Miami Beach c/o Mr. Jorge Gomez, Director Planning and Zoning Department 1700 Convention Center Drive Miami Beach, Florida 33139 RE: Statement and Transcripts for Appeal of Final Order, DRB 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. [Statement prepared pro se, not brief prepared by legal counsel], 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 (MDPL) is specifically authorized to appeal DRB decisions that adversely impact historic preservation. Code Sec. 118-262( a) gives MDPL 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 ioining 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 A venue, so the properties of several Appellants directly abut the subject property and share a common boundary point or line. APPEAL OF FINAL ORDER, MA Y 23,2006 DESIGN REVIEW BOARD FILE No. 18871 II. Statement of Facts 1. The property subject to this appeal is located in a CD-2 zoning district at 929- 939 Alton Road, located on the east side of Alton Road and bordering 1- and 2-story commercial buildings to the north and south. 2. The rear of the property borders the RM-l Flamingo Park Historic District, directly abutting four historic buildings that front onto Lenox A venue, including two I-story two 2-story structures listed as contributing buildings in the City's Historic Property Database. 3. The public notice and staff reports advertised the proposal as as-story, mixed- use building, but in fact the Applicant sought approval for a 6-story building, with one level of parking underground. 4. The staff report prepared by the Planning Department for the Design Review Meeting of November 15, 2005 identified 9 of 17 Design Review criteria that the project did not satisfy. 5. At the Design Review Board meeting of November 15, 2005, the application was opposed at public hearing by affected neighbors on various grounds. 6. The Board voted to continue the project to the meeting of February 7, 2006, and asked the Applicant's representatives to meet with affected neighbors as a group to seek compromise on an acceptable design. 7. On or about November 19, 2005, the Applicant demolished the existing buildings on the lots at 929-939 Alton Road. 8. On December 5, 2005, at a meeting of the Flamingo Park Neighborhood Committee at which the affected neighbors were represented, the Applicant's representatives presented the project with no changes other than a 5' increase in the rear setback. 9. At the December 5 meeting, the Flamingo Park Neighborhood Committee voted to reject the proposal as inherently incompatible and adopted a formal resolution asking the Miami Beach City Commission to support down-zoning within the Historic District and to expand the down-zoning to include the Alton Road edge of the Historic District, including elimination of a zoning "loophole" that allowed additional density for mixed-use projects. 10. Also at the December 5 meeting, the Applicant's representatives proposed a second meeting before the December holidays, and despite scheduling conflicts with affected neighbors the facilitator for Flamingo Park Neighborhood Committee agreed to convene a follow-up discussion on December 12. 11. On December 7, 2005, the City Commission voted 7-0 to refer the Flamingo Park down-zoning issues to the Planning Board, including the Historic District edge (the east side of Alton Road). 12. On December 12, 2005, with no affected neighbors in attendance, the Applicant's representatives presented three additional options for revising the PAGE 2 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 project design to the follow-up meeting of the Flaming Park Neighborhood Committee. 13. On December 17, 2005, the three new design options were emailed to affected neighbors by the facilitator of the Flaming Park Neighborhood Committee. 14. On January 5, 2006, Mark Needle emailed the Applicant following discussions with other affected neighbors to request a follow-up meeting on their behalf prior to the February hearing, to address the new design options, and to propose further design improvements. 15. On or about January 11, the Applicant's representatives submitted revised plans to the Planning Department, which the affected neighbors requested from the Design Review Board clerk and reviewed in advance of the February 7 meeting. 16. On January 24, 2006, the Flamingo Park Neighborhood Committee and the Miami Design Preservation League's advocacy committee presented evidence to the Miami Beach Planning Board regarding zoning incompatibility alongside the Flamingo Park Historic District, and the Planning Board requested that the City Planning Department prepare legislation to commence zomng-m-progress. 17. On Feb. 2, 2006, Mark Needle emailed the Applicant regarding the January 5 request by affected neighbors to meet prior to the February 7 hearing. 18. Also on Feb. 2,2006, the affected neighbors requested in writing a copy of the staff report from the Miami Beach Planning Department, and repeated this request by telephone on the morning of Feb. 6, but the report was not provided until approximately 5 PM on Feb. 6. 19. The staff report prepared by the Planning Department for the Design Review Meeting of February 7, 2006 identified 8 of 17 Design Review criteria that the project did not satisfy. 20. At some time prior to the Design Review meeting of February 7, 2006, the Applicant's representatives obtained a copy of the staff report and prepared complete sets of revised building plans responding to the Planning Department's recommended conditions. 21. At the Design Review Board meeting of February 7, 2005, newly revised plans were submitted to the Board, which issued a decision approving the project from which this appeal is taken. PAGE 3 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 II. Preliminary Issues Appellants seek to protect the City's first historic district, and the affected owners of contributing properties within the historic district, whose interests are adversely impacted by inappropriate development in the commercial buffer zone along the district's edge. This written statement accompanying hearing transcripts is provided by Appellants in lieu of briefs by legal counsel, as specifically permitted by the City Code, Sec. 118- 262(a). Appellants are not represented in this matter by legal counsel and will rely upon Miami Beach's interpretation of its own zoning laws that were misapplied in reaching this Design Review Board decision. As a threshold issue, Appellants respectfully ask that the City Commission waive any fee for the present appeal. Miami Design Preservation League is a voluntary, nonprofit organization specifically designated in the Code to appeal Design Review Board decisions to the City Commission, as per Code Sec. 118-262(a). This designated legal process outside the boundaries of the Historic Preservation Board is intended to permit the organization to raise matters of historic importance to the attention of the City Commission. Regardless of the outcome of appeal, imposition of a fee in this circumstance does not further the public interest in fulfillment of this role. III. Grounds for Appeal 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. Code Sections 118-251 to 118-263 provide a process for the orderly design review consideration of architectural drawings. The procedural integrity of design review is especially significant when there are serious objections to a project, as in this case, raising issues as to whether revised drawings satisfy the design criteria. The orderly process is essential not only to protect the legal rights of the Applicant, but also those of adversely affected parties. The DRB process worked properly at the November 15 hearing, but the process was circumvented at the February 7 hearing. On November 15 Appellants raised serious concerns about the proposed design, and the DRB acknowledged these concerns and emphasized the importance of V\:'orking with the community in an effort to resolve differences: PAGE 4 ApPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 18871 MR. CHEV ALlER: I would recommend that we don't even belabor extensive discussion on the building itself, given I think what needs to be done, regardless of what the applicant decides to propose. I think they need to get with the community groups and see this through, as typically is the case when we have this kind of concern. 1 MR. STEFFENS: You got a tough one here. I think, as Peter said, you were really going to need to meet with the community, and get their feedback, and see what you can incorporate to mitigate some of the community's concerns....2 But besides all these sort of small items, I think, is the big sort of compatibility with the neighborhood directly behind here. It's a major issue, and how you could address that with some changes in massing is a major concern ofmine.3 MR. NEVILLE: . ..Obviously, as Mike stated, the big issue here is with your neighbors and how your building is going to affect them.4 MR. STEFFENS: I would move to continue, but I want to make sure that the date it's continued to allows enough time for Koby to meet with the community.s MR. NEVILLE: All opposed? Thank you very much for working with the neighbors.6 However, the fair resolution of issues and the rights of affected neighbors were adversely impacted by procedural tactics that circumvented the design review process. The violations outlined below are inherently unfair, bypass procedural safeguards in the Code, and deprive Appellants of their due process rights. Notwithstanding other claims in this appeal, the procedural violations alone require remand of the decision to the DRB for proper consideration of the project. (a) The Code requires completed architectural drawings to be considered at the "next available meeting date after the submission," but the plans considered on February 7 were submitted only that same day at the start of the DRB hearing. There is no question that architectural drawings are the most significant evidence in a design review hearing. The first sentence of Code Article VI, Design Review Procedures, makes this explicit: Design review encompasses the examination of architectural drawings for consistency with the criteria stated below, with regard to the aesthetics, appearances, safety, and function of any new or existing structure and physical attributes of the project in relation to the site, adjacent structures and surrounding community. Sec. 118-251 (a). 1 Transcript of Nov. 15,2005, p. 29, lines I - 5 2 Transcript of Nov. 15,2005, p. 3 I, lines 9 - I I 3 Transcript of Nov. 15,2005, p. 32, lines 4 - 6 4 Transcript of Nov. 15,2005, p. 35, lines IS - 16 5 Transcript of Nov. 15,2005, p. 36, lines 18 - 19 6 Transcript of Nov. 15,'2005, p. 37, line 9 PAGE 5 ApPEAL OF FINAL ORDER, MA Y 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 The Code makes it clear that complete architectural drawings are required even before an item can be set for public hearing: When the application is complete, the planning department shall place the application on the agenda and prepare a recommendation to the design review board.... [T]he board shall consider the application and planning department recommendation at the next available meeting date after the submission oj a completed application to the planning department. Sec. 118-253 (a) (emphasis supplied). The requirement of submitting revised drawings before the hearing was acknowledged on Nov. 15, when there was discussion of the "next available meeting date" following a Dec. 5 meeting with affected neighbors: MS. GRALIA: I believe that the ... their neighborhood meeting is December, the first Monday of December, so if we know what that is... and I guess, if maybe we can continue this I would imagine, I don't think we would make it in December, so the January -- MR. MOONEY: Well, I don't think you'll make it in January either, because the submission deadline for the January 3rd meeting would be the first week of December. MS. GRALIA: So then we have to be moved over to February.? Thus as a practical matter, as well as a Code requirement under Sec. 118-253 (a), the revised application can only be deemed "completed" and set for public hearing when the revised plans have submitted in a timely fashion before the meeting. The Feb. 7 hearing, however, did not consider the adequacy of the "completed application" that was submitted in January. Instead, the Applicant handed out to DRB members and planning staff a revised set of architectural drawings.s As a procedural matter there is simply no basis in the Code for last-minute submissions of design changes. The only proper forum for evaluating architectural drawings is at "the next available meeting date after the submission of a completed application," Sec. 118-253 (a). The consideration of newly revised drawings in circumvention of this requirement violates the plain language of the Code. (b) The Applicant conceded the Code requirement for advance submission of plans by its own words and actions, when it explained that the January 11 submission date prevented consideration of changes requested by affected neighbors on January 5. The Applicant not only acknowledged the need for completed drawings at the November 15 meeting, as noted above, but also emphasized the importance of this requirement at the February hearing. In fact, the Applicant's attorney invoked this requirement when 7 Transcript of Nov. 15,2005, p. 36, line 21- p. 37,line 1. 8 Transcript of Feb. 7,2006, p. 1, line 21. PAGE 6 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 explaining its rationale for not meeting with affected neighbors, or considering further design changes, following written requests on January 5 and February 2, 2006: 9 MS. GRALIA: Now, on the second meeting that Mr. Needle is talking about, what occurred is that we have a deadline. JanualY 11 th, we needed to submit our plans in order to be here today.... We had no time to schedule another meeting with the neighbors, because we had to redesign this whole thing and submit it by January 11th. So when I received a second e-mail sometime in February...2nd I believe, February 2nd -- it had already been submitted. We had, I mean, everything had been done.1O Thus, the Applicant specifically cited and relied upon the requirement of advance, completed plans as a reason why it was infeasible to meet with affected neighbors five weeks before the February hearing. (c) Contrary to Applicant's pOSItIon that plans could not be revised to accommodate affected neighbors, the Applicant chose to revise the plans just before the hearing date when eight (8) of seventeen (17) design review criteria were deemed "not satisfied" in the Staff Report. Applicant's stated position regarding the January 11 deadline stands in sharp contrast to its position and actions immediately prior to February 7. After receiving the formal recommendations of the Planning Department, the Applicant did indeed revise its design and submit an entirely new set of architectural drawings. The motives behind Applicant's self-contradictory interpretation of Code requirements are easily explained, but the strategy cannot withstand due process scrutiny. Simply put, the timely architectural drawings submitted on January 11 did not satisfy the Code's design review criteria in the view of either staff or affected neighbors. From the email of January 5 (see footnote 9 above), the Applicant was already aware that affected neighbors would ask for further design changes in relationship to the historic district. 9 Appellant Mr. Needle sent an email to Ms. Gralia on Jan. 5,2006 to that began as follows, and went on to describe possible directions for a compatible design compromise: Thank you for forwarding these proposed alternatives, which show some willingness to move away from the unacceptable option presented at the December 5th Flamingo Park meeting. Unfortunately, the onset of holidays was a bad time to try and reschedule a neighborhood meeting for further dialogue. Now that we have returned from our own holiday travels, and schedules have returned to normal, I have spoken with a few people and feel that another meeting is justified and should be scheduled. I understand that the developer intends to submit another design next week, in preparation for the February DRB meeting. I also understand that they would prefer to settle this matter by the February meeting, in part because this might reduce parking requirements. Regardless of any design submitted next week, I would like you to convey to the developer that the neighbors intend to develop consensus on conditions that could allow for a true compromise at the February DRB meeting. The Feb. 2 email confirmed that Appellants remained willing to meet to discuss design revisions. No response was sent by Applicant to either communication. 10 Transcript of Feb. 7, 2006, p. 20, line 21- p. 21, line 6. PAGE 7 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 Shortly before the February 7 hearing, the Applicant discovered that planning staff found the drawings to be unsatisfactory in regard to eight (8) specific design review criteria - nearly half of the seventeen (17) criteria. I I Staff Report of Feb. 7, 2006, pp. 2-5. The Applicant presented last-minute drawings that conceded the recommendations of staff in their entirety, in a transparent effort to avoid the possibility of further design revisions requested by affected neighbors. The Applicant's change of legal position regarding plan revisions served as a strategic effort to undermine the due process rights of Appellants. One Appellant objected to being "steamrolled" by the last-minute revisions, and disputed any inference that the changes stemmed from the meeting with neighbors: MR. BROCK: ... The point is that we want to try and work with the architect and the attorney. I am the absolute most impacted by this building. The attorney has never contacted me.. .. I have emailed; I own a business, you know; and I reside in the house. That's the first issue. The second issue is, now I see that they have made some changes from the meeting that we did have, but you could have given it to us before we got here, so we wouldn't be so.. .you know, steamrolled. To say, "Oh look, you guys actually did do something," but we did meet before and you didn't do anything. So that's sort of something I wanted to bring to the forefront. 12 Indeed, while the Applicant presented further revisions to the DRB, the affected neighbors were never provided copies of the changes prior to or during the hearing. (d) The City Code does not make an exception for minor plan changes and. even if it did. revisions that purport to satisfy 8 of 17 design review criteria could not be considered minor plan changes. The Code does not provide an exception for "minor" plan revisions. Moreover, even if the Planning Department were to assert that revised plans should be accepted for de minimis changes, no such exception is justified in this case. The logic for permitting an exception is clearly circular for a plan that does not satisfy 8 of 17 design review criteria: either the staff recommendations to correct 8 design criteria are major, and thus the revised plans should have been submitted in advance and made available for thorough public review, or the revisions were indeed minor and should not justify a change in findings for 8 of 17 design review criteria. If the revisions are substantive, they fall under the express requirements of the Code. (e) Depriving affected neighbors of the opportunity to review plan revisions - especially when the revisions were purported to respond to their concerns. II Appellants 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. 12 Transcript of Feb. 7,2006, p. 28, line 16- p. 29, line 2. PAGE 8 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 and when substantive errors are documented - is a violation of their due process right to "rebut all evidence presented" in relation to a specific plan. As a result of Applicant's actions, Appellants found themselves in the untenable position of expressing opinions and presenting evidence of design compatibility on a completely new set of drawings that they had never seen. The impact of the new plans skewed the hearing in significant respects. First, it left Appellants unable properly to review, prepare evidence, or rebut effectively the impact of design revisions that they had never seen - even though substantive errors were demonstrated on both the November and the original February plans. Second, the absence of commonly reviewed plans inherently tainted the DRB's consideration of Appellants' testimony and prejudiced its ability to evaluate objectively the weight of testimony that contradicted the views of planning staff. i. Right to present and rebut evidence. The legal significance of an orderly review of architectural drawings is made clear in the Code section addressing the review of design review decisions: The review shall be based on the record of the hearing before the design review board, shall not be a de novo hearing, and no new, additional testimony shall be taken. Code Sec. 118-262(a). Formal Commission review and any subsequent legal appeal are thus entirely dependent upon the record established at public hearing. For this reason, the process establishes a critical safeguard to protect the rights of all parties: The design review board shall consider each application at a public hearing, at which the applicant and interested persons shall have an opportunity to express their opinions, present evidence and rebut all evidence presented. Code Sec. 118- 254(a). The right of affected neighbors to persuade DRB members, or at least to establish a record for review, is compromised by plans that present a moving target. A violation of the opportunity to "rebut all evidence presented" thus deprives Appellants of their due process right to establish a complete record for appeal. The importance of this right is clear from the hearing record, where public scrutiny of the plans identified substantive errors in the Applicant's plans both in November and February. In the DRB meeting of Nov. 15, Appellants noted that the plans inaccurately described the rear setback requirement: MR. NEEDLE: .. .[I]f you were to follow the staffs recommendation and approve this, subject to more conditions then satisfied criteria, then there certainly wouldn't be any more opportunity to put facts on the record. And I think if you look at the CD-2 zoning, you will see the requirement for a rear setback if 10 feet when abutting a residential district.... They have represented on here that it is five feet. Staff has said that because of the historic district and because of, you know, whatever other concerns, we should go beyond that, OK? But it's, 10 is the minimum. They're asking you to PAGE 9 ApPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 put another variance but they've not shown that. They have actually represented - mistakenly - this and other issues.. ..i3 MR. NEVILLE: ... You've pointed out that you feel that the setbacks are greater than what he has shown. But in our staff report there is no, there is no variances required for this. So I am wondering, what's, what's -- MR. MOONEY: The only variance that technically would be required would be for the - Mr. Needle is correct, and that is the rear setback.i4 Likewise, in the plans submitted in January for the February meeting, fundamental errors were identified as to how much Floor Area Ratio was being requested: MR. NEEDLE: There are other reasons for making.. . for deferring this matter. For one, the square-foot assertions that I saw - I haven't seen the latest that you were just given of changes that were made - but what I did see showed me that on one page the square footage added up to 48,000, and it wasn't 39,681 as it said on one page or 39,000 as it said on another page. is Additional inaccuracies on the revised plans, as noted below (infra p. _), were criticized by one DRB member with an admonition that goes to the heart of Appellant's compatibility issues: MS. LUCE: ... [I]f we were being asked to look at, once again, compatibility, having a photo montage from this perspective, that does not in fact reflect that perspective, is not entirely helpful for determining the compatibility.... ... So I'm just saying, it puts your building in a different light, having it against a background of other fairly large buildings, that might not, in fact, be perceived from this vantage point. i6 Whether the DRB was approving 39,000 square feet (p. A-O.I) or 39,681 square feet (p. A-0.2); which floor levels calculations were incorrect on the chart showing 48,000 square feet (p. A-0.2); and whether the Applicant's plans were fully accurate regarding context were all substantive errors proving the importance of public review and scrutiny of the revised plans. Appellants were deprived of the opportunity to note other possible discrepancies, since the revised plans were not made available until after the hearing. ii. Inherent unfairness of un-reviewed plans. As a practical matter, the impact of the last-minute plan substitution goes beyond specific errors or omissions in the un-reviewed plan, and the Appellants' ability to prepare and present evidence on specific plans. In short, the existence of new plans changed the subject of the hearing in the minds of DRB members "- instead of evaluating the need to bring back revised plans on a design that 13 Transcript of Nov. 15,2005, p. 19, line 24 - p. 20, line 7. 14 Transcript of Nov. 15,2005, p. 23, lines 18-22. According to the staff analysis, the application submitted in advance of the November ORB meeting failed to satisfy 9 of 17 design review criteria. Appellants were proved correct in contending that the application also failed to satisfy other criteria besides those noted in the staff analysis, including the undisclosed violation of criteria 5 related to minimum setbacks. 15 Transcript of Feb. 7, 2006, p. 9, line 22 - p. 10, line 2. 16 Transcript of Feb. 7, 2006, p. 49, lines 12-15,22-24. PAGE 10 ApPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 failed at least 8 of 17 review criteria, the issue became whether the staff s proposed revisions were adequate to bring the building into compliance. Appellants were inherently disadvantaged in addressing this narrower topic, since they did not have the plans and had prepared evidence based on the properly submitted plans. The absence of a common plan for evaluation caused a fundamental tilting of the playing field and is reflected in confusion at the outset ofthe DRB board's final deliberation. For the public, the disappearance of the original plan led to an inherent implication that any design objections might no longer be as relevant, if they were targeting a plan that no longer existed. This suggestion of misdirected criticism is apparent from the first question by the DRB Chair: MR. NEVILLE: Mark, I appreciate that you put in a lot of time and effort into your presentation. I just wanted to make sure that since you didn't get these drawings ahead of time, is your understanding of their setback's 15 feet from the rear, and then 37, after 2 stories, 37 from the rear to the tower? Is that what you guys have? MR. NEEDLE: The setbacks, they didn't answer our January 5th or February 2nd communications, so this is the first time I'm seeing it. So it's... MR. NEVILLE: Well they just handed it out today, but I didn't know, I don't know if that was your understanding or. . .. MR. CAREY: We provided you with the Staff Report, which indicated that we were recommending a 15 foot setback, rear setback, as well as increased side setback MR. NEEDLE: I knew that the Staff was recommending a 15 foot setback. I asked for the Staff Report last week - I didn't get it until yesterday at 5:00. I've read through most of it. And the 37 foot is an improvement over what was there before [in the November hearing]; it was 27 feet. But the issue is, it's still giving its full massing for the entire 3-story block, it needs to be stepped back and away, it needs to be pushed forward to Alton Road through variance, and this is just not a design that is compatible. The design itself is incompatible with the historic neighborhood; it's creating a wall effect.l? The suggestion that public testimony of incompatibility was grounded in error was made explicit during the testimony of another affected neighbor, who noted that from across the street the historic neighborhood would be "hit" by the impact of the building. The DRB Chair again outlined the proposed setbacks, and wrongly suggested that there was a persistent "misconception": MR. NEVILLE: ...1 don't know where the misconception is, that there's a -- and it never was -- a flat 5-story, or four-story building, whatever it was. MS. COTTER: And I know that it's not a flat one... MR. NEVILLE: It was closer to you. 17 Transcript of Feb. 7, 2006, p. 12, lines 8-25. PAGE 11 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. I 887 I MS. COTTER: But it was just...still, it's the massive size.I8 When I stand on this side of Lenox and look in that direction, this is - big. I mean, it's not Mirador big, but it's big. And to me, it's actually shocking.19 In fact, no evidence of a so-called "misconception" regarding tower setbacks appears in any of the public testimony on the record. Not only was public testimony disadvantaged the last-minute plan revisions, but staff recommendations were unfairly advantaged. Because the Applicant adopted staff recommendations that were not reviewed in advance and publicly scrutinized by the public, public testimony was not focused on the narrow question of whether staff recommendations were adequate to cure the original plan's defects. The uncertainty created by the plan revision is clearly manifested by the first DRB member to speak out after the close of public hearing, who began to object to the project on the basis of the unsatisfied design review criteria: MS. GRANT-HYMAN: ... I don't know, Kobe, you still don't seem to get it. And especially number 2 and 3 are not satisfied. Only 9 issues of the 17 criteria that they need to meet have been satisfied. MR. KARP: No, more have been satisfied since we have provided the additional setbacks - MS. GRANT-HYMAN: No, not according to what I see- MR. KARP: - for the project. Right, and what we did is took the staff comments and provided the additional setback... .20 The DRB member was essentially asked to discount testimony regarding design incompatibility and to assume that the staff's recommendations had solved the issues. This DRB member failed to press further objections regarding compatibility, though she maintained that the plan remained unsatisfied as to several other criteria. This confusion at the outset of final deliberations is revealing, for it is rooted in the variation between the revised plans and the staff's written report. Had the plans been properly submitted, the public could have presented evidence not only on the broad issues of massing incompatibility but also focused on the narrow, ultimately decisive issue: whether staff's recommended setback changes - an additional 2.5' to 5' on only the lower two floors - were adequate to remedy 8 of 17 review criteria and bring the project into compatibility with the historic district. Absent this fundamental debate, public calls for further design modifications were treated as discretionary, but this and other DRB members were hesitant to pursue them.21 18 Transcript of Feb. 7, 2006, p. 3 l, lines 7- I I. 19 Transcript of Feb. 7, 2006, p. 33, lines I 6- I 7 (reacting to photo montage depicting the view from the historic district). 20 Transcript of Feb. 7,2006, p. 44, lines l7-24. 21 For example, one DRB member addressed the potential to reduce 5th-floor massing in tentative terms: PAGEl2 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 (f) Due process violations also occurred by the Applicant's last-minute visual evidence, by the failure of the Planning Department to supply Appellants with key staff recommendations until the last possible moment, and by a defect of the public notice. The fundamental procedural disadvantage to Appellants was compounded by several other due process irregularities. Taken together, these issues reinforce the fact that the rights of Appellants were undermined by failures in the DRB process. First, like the last-minute plans, the Applicant presented the DRB with key evidence of its design change only after most of the affected neighbors had completed their testimony, over one hour into the hearing. The evidence included an artistic photo-montage purporting to represent an accurate perspective of the massing as it faces the Flamingo Park Historic District. This visual perspective was presented as evidence on the critical issue of design compatibility, but its accuracy or lack thereof was never subjected to scrutiny. A photo-montage is an inherently creative product, subject to human error, combining two or more images in a manner intended to create the impression of photo-realistic accuracy. There is no evidence on the record regarding whether or not the image was a fair representation, as it was never made available to Appellants and was presented only in response to DRB queries late in the hearing. In fact, the photo-montage was never properly entered on the record, and was not included in the last-minute plan revisions that were available in the Applicant's DRB file following the rendering of the final DRB order. As such it was an error of process and a derogation of Appellants' rights for such evidence to have been presented as it was on the key issue of compatibility. A second prejudicial error was the disparate treatment of Applicant and Appellants by the Planning Department in advance of the hearing. It is plainly apparent that the Planning Department's staff report - or at least the substance of its findings - was made available to Applicant with sufficient time to create an entirely new set of architectural drawings. As noted on record, however, Appellants were not afforded the same opportunity to review findings, and found out about a key recommendation less than 24 hours before: MR. CAREY: We provided you with the staff report, which indicated that we were recommending a 15 foot setback, rear setback, as well as increased side setback MS. LUCE: The other question, I wonder if people on this Board think that there is any point in examining some, a little bit more of rearranging of the massing, involving reducing the size of the double-story restaurant to alleviate what is the impact on the neighbors in the back. Is there anything to be gained from that? PAGE 13 APPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 18871 MR. NEEDLE: I knew that the staff was recommending a 15 foot setback. I asked for the staff report last week - I didn't get it until yesterday at 5:00.22 The relevance of this disparity is beyond dispute, since the essential characteristic of the revised plans is compliance with recommendations in the staff report. At a time when Applicants were revising complete sets of professional drawings, Appellants were not even informed about the new recommendations until the evening before the hearing, four days after a formal written request. Finally, a procedural error noted on the record is a defect in the public notice: MR. NEEDLE: Another error that I believe is a technical but substantive error, for the record, is that this project is not advertised as a 6-story project, but in fact it is 6 stories. One story is underground. The notice simply says as-story building. It doesn't tell you that there is also an underground level which, it will be pointed out later, has an impact as well in the neighborhood.23 This appeal does not raise the issue of drainage as a design review issue, though underground parking may adversely affect already severe local flooding; instead Appellants reserve their rights to ensure that rainwater accommodation is addressed at a subsequent stage of the City permitting process. Nonetheless, the notice defect concerns a substantive element of the proposal and provides additional grounds for remanding the project - this time with sufficient time to address the revised plans and rebut assertions that new 2.5' and 5' setbacks address the design review requirements. 22 Transcript of Feb. 7,2006, p. 12, lines 16-19. Appellants have supplemental evidence regarding the procedural irregularity in the form of email correspondences with the DRB clerk on Thursday, February 2 and two follow-up emails on Monday, February 6. 23 Transcript of Feb. 7,2006, p. 10, lines 3-7. PAGE 14 ApPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 (2) The DRB failed to base its decision upon substantial competent evidence, ignoring expert and public testimony of design incompatibility and relying instead on non-conforming buildings and inadequate or misleading evidence. Appellants believe that the DRB misapplied the City's zoning laws, but independent of this error the DRB also failed to base its decision upon substantial and competent evidence. In particular, there was inadequate evidence to support a finding of compatibility with the adjacent historic district, which is addressed in several design review criteria including the following: The proposed structure, and/or additions or modifications to an existing structure, indicates a sensitivity to and is compatible with the environment and adjacent structures, and enhances the appearance of the surrounding properties. Sec. 118- 251(6). Two critical evidentiary failures directly impacted the reasoning and decision of the board. First, the DRB disregarded multiple sources of expert evidence regarding the compatibility of infill in relation to contributing historic architecture. Second, in countering this evidence the DRB, 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. (a) As it relates to the historic district and adiacent contributing properties, there is insufficient evidence to support a finding that the proposed structure "is compatible with the environment and adiacent structures, and enhances the appearance of the surrounding properties." Most notable in the record, on the issue of compatibility, is what is missing. There is no clear finding by the DRB that the proposed project is indeed "compatible with the environment and adjacent structures," and the record is simply devoid of any evidence that the project "enhances the appearance" of the surrounding contributing historic buildings. While there are such findings regarding the Alton Road side of the project, the lack of such findings in relation to the historic district is clearly reflected in the concluding comments of DRB members, even as they voted to approve the project. One DRB member astutely characterized the project as a "tale of two buildings" that presents a "horror show" to the historic neighborhood: MS. REDFERN: But right now, it's...it is what everybody said -- it's sort of a tale of two buildings, where we have... and it's a challenge for you, really, because you have the Alton Road side, and then you have the Flamingo historic neighborhood side. And I think that you need to pay a little more attention to each side, and what each side means to the people who use it. And it's going to be two separate sets of people who interact with each side of the street. The Alton Road, hopefully more pedestrians will use it. When we drive by there, and we went there this weekend -- I mean it's... that section of Alton Road certainly could use a more activation, and I think that a mixed-use project is, is an asset to it. PAGE 15 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 But from the backside, it's, it's a horror show to those neighbors.... And even though your building doesn't rise to the level of these 40 story monster buildings that are going up on Collins Ave., when you think about it in scale to the little tiny bungalow and the little one-story Henry Hohauser building in its backyard, it is sort of daunting to them.24 A second DRB member noted the lack of accurate context drawings and concluded that the evidence, as presented by Applicant, was deficient: MS. LUCE: .. . First of all, I just - I'm sorry to be so, get so laborious with this thing today, but this is context partially, but I'm hoping that we'll all educate ourselves to know, from the Applicant's point of view and from the Board's point of view, that actually, context is always going to be a perspective of the building in the neighborhood from the street. And I think that we don't have that entirely presented to us in this project.... [I]n other words, if you were, if we were being asked to look at, once again, compatibility, having a photo montage from this perspective, that does not in fact reflect that perspective, is not entirely helpful for determining the compatibility.25 Ms. Luce went on to note that "we do look at what is considered the 'B' side of a building. And in this case, it's very important because you do have a, an impact on the neighbors.,,26 Two other DRB members concurred as to the rear of the project in almost identical words: MR. DAVID: I really think that that needs a lot of work. 27 MR. NEVILLE: [I]t really needs a lot ofwork.28 And the fifth DRB member, as noted earlier, believed that the project still did not did not meet multiple design criteria, until disputed by the Applicant (see comments of Ms. Hyman-Grant, at footnote 20 above). (b) The Design Review Board failed to address directly relevant evidence from the City's Historic Preservation and Planning Boards, the Miami Design Preservation League, and the public. By contrast, there was an abundance of expert evidence and public testimony suggesting that the height and FAR sought by the Applicant present insurmountable compatibility issues. Virtually no effort was made to dispute or distinguish the findings of the City's own Historic Preservation and Planning Boards; statements of rebuttal took the form of pointing out setbacks and down-playing the negative effects in both the November and February hearings: MR. NEVILLE: I just want to point out to you that it's not as drastic as you might've though it was.29 24 Transcript of Feb. 7,2006, p. 53, line 15 - p. 54, line 5. 2S Transcript of Feb. 7,2006, p. 47, lines 2-7 - p. 49, lines 12-15 (emphasis added). 26 Transcript of Feb. 7,2006, p. 50, lines 23-24. 27 Transcript of Feb. 7,2006, p. 53, line 7. 28 Transcript of Feb. 7,2006, p. 55, line 25. PAGE 16 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 1887 I MR NEVILLE: I don't think that this is going to cause the downfall of the neighborhood in any way. I think that's a little bit overstated. And I don't blame anybody for coming forward; in fact, I'm glad that they did because if they didn't, we would've approved probably the one last time, which would have really been a disaster in hindsight. 30 According to this view, the difference between "disaster" in November and "compatibility" in February is basically a lO-foot increase in setback, for both pedestal and tower. 31 Such statements and views simply do not rebut the evidence and logic of the substantial and competent evidence to the contrary. i. Historic Preservation Board findings regarding incompatible injill. A unanimous resolution of the Historic Preservation (HP) Board, addressing the incompatibility of infill development adjacent to historic structures, was summarized by Appellants in the November 15 meeting: MR NEEDLE: [T]he issue is compatibility. This five-story high building is not compatible with the location. Although the current zoning allows for this height and FAR, I question whether it is really appropriate to build this property out to its maximum height and FAR. The CD-2 zoning along Alton can allow compatible commercial development, which is 1.5 FAR and it is comparable to the 1.25 in the historic district. However, the HP Board, Historic Preservation Board, has unanimously agreed after. its joint meeting with the Planning Board, that this kind of infill is inappropriate for the historic district. And that is why they have decreased the height to I believe 30 feet, they have decreased the FAR to 1.0, and that issue needs to come forward for the city to decide, but it is unanimous from the historic preservation point of view that this kind of building is incompatible. And, further, they are taking advantage of the opportunity to use the RM Zoning which let's them balloon an extra 10,000 square feet of development and go up to 2.0, which creates still greater contextual problems. No evidence was presented to rebut the down-zoning proposal by the HP Board, or to suggest that the same dynamics did not apply to infill at the edge of the historic district. The clear implication is that infill incompatible to historic buildings would be equally so regardless of which side of the property they are located on. i. Planning Board findings regarding incompatible maximum zoning limits. Evidence from Planning Board discussion on January 24, 2006 was presented in the February 7, 2006 DRB meeting. Also presented was information from the City's Historic Property Database, showing the prevalence of 1 and 2-story historic buildings abutting the subject 29 Transcript of Nov. 15,2005, p. 24, lines 20-21. 30 Transcript of Feb. 7, 2006, p. 55, line 16-18. 31 While there were changes to balconies and a 3-foot reduction in height, the main changes were an increase in rear setback from 5 to 15 feet for two levels and underground, and from 27 to 37 feet for three upper levels.s PAGE 17 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 property and other portions of the Flamingo Historic District. The unanimous comments from the Planning Board were transcribed and entered into the record as expert testimony, supporting Appellants' contention that the mixed-use FAR loophole and proposed massing is inherently incompatible with low-rise, contributing historic buildings. In short, Planning Board members agreed with the comments of the Chair: M:R. DIAZ: I don't think reasonable people can disagree that the CD-2/RM-2 bonus is wholly incompatible with the adjacent zoning.... 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.32 At a minimum, the Planning Board'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 of massing in light of design review criteria.33 iii. Miami Design Preservation League and public testimony. The record also includes a great deal of testimony of incompatibility about the particular attributes of this project in relation to its specific adjacent historic structures. These considered views included the Advocacy Committee for the voluntary historic preservation organization charged with protecting Flamingo Park Historic District: MS. BRIGHAM: We met extensively and discussed this at some length.... You don't have to allow everybody to build out to their FAR. Y Oil know, they may be allowed to have 2, FAR of point, of 2, but you don't have to grant them that if it is completely incompatible, which is one of the most important things for the DRB to look at, I think, to protect the asset that we have.34 Virtually all members of the public, as well as all residents who submitted individual emails, spoke out against incompatibility in the two hearings (the sole exception was a district resident who admitted to being a paid employee of the Applicant's architeces). The critiques presented were detailed and insightful: MR. ZAID: The problem with this building is that it doesn't relate to what's around it, and we keep shifting this and shifting that and talking about measurements, but the fact is that it's incompatible with its neighbors. The materials are wrong; they don't relate in any way to the buildings around them. The scale is wrong; we've talked about that plenty. The profile of the building is 32 Emphasis added. This testimony and the Historic Property Database/aerial correlation are provided as an attachment to this statement. 33 See discussion between Mr. Neville and Mr. Needle, transcript of Feb. 7, 2006, pp. 15-18. 34 Transcript of Feb. 7,2006, p. 35, line 5 - p. 36, lines 6-9. 35 Transcript of Feb. 7,2006, p. 38, line 13-14. Appellants strongly dispute the relevance of additional evidence provided by Mr. Salazar, who gathered signatures from neighbors supporting a mixed-use infill project but (1) did not disclose his role as project architect (he described himself as "a member of the Board of Directors" for his condominium), and (2) did not disclose impacts of the project to historic buildings, but instead drew attention to extraneous issues, e.g., "it will have a minimal impact on traffic." PAGE 18 APPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 18871 blocky, and Erica mentioned, perhaps breaking the building up so that it doesn't look like such a big mass of boring, repeated elements. .. . I'm sure these people can work out something that works better for the city, for the neighbors, and even for the people in the project. And I get the feeling that everybody is so stuck in their tracks, that they were talking about little measurements rather than a whole aesthetic thing. And really, somehow, the building needs to relate better to its neighbors. And I think that's the essence of the discomfort that everybody is feeling. You can't help and look at that building without feeling that the neighborhood is being impinged on. OK, and that is somebody who lives in the neighborhood; I'm not going to be directly affected by this building, but I just feel this chewing away at our beautiful, beautiful Art Deco district. It's piece by piece; it's like a quilt that's being moth-eaten. And I know that we can build beautiful and wonderful buildings, and it just needs a little more effort and a little more insight, and a little more seeing this building from the outside in, rather than as a planning solution that meets all the laws.36 Members of the public recognized and spoke with eloquence of the need for extensive scrutiny for the first edge project of its type. One example will suffice: MS. COTTER: And I think we have something incredibly special to preserve in our little area, and people come from throughout the world just to be here. If you travel outside this area, and you come back home, you just sit there and say, "Thank God, Barbera Capitman fought so hard to save this." Because we'd have a lot of that. And it is really important -- this is the turning point. This is it. This is the point that we can make a huge difference, and I think it's very important not to just leap to stuff. Let's really consider this, because this will be here, and here, and here, and it will go all the way down. And that -- it would be tragic. 37 And besides asking for height and massing be reformed, members of the public proposed various specific changes to make the project better, at least relatively, even without reducing FAR. For instance, Appellants noted that approximately 5,000 square feet of massing was displaced to the upper floor by an expansion of the commercial space between the November and February meetings (double-height ceilings created internal volume that does not count against 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. (c) In determining compatibility with historic buildings, the DRB improperly relied on evidence of non-conforming buildings in the historic district. Rather than address the project's full design impact on adjacent properties, the DRB erred as a matter of logic by relying upon the Applicant's documentation of non-contributing buildings in the historic district to justify excessive and uniform height and massing of 36 Transcript of Feb. 7,2006, p. 42, line 22 - p. 43, line 20. 37 Transcript of Feb. 7,2006, p. 33, lines 18-25. PAGE 19 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 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. Non-conforming buildings precede not only the historic district but the design review criteria, and by definition would not be permitted to be built today. As a result, the DRB members disregarded testimony calling for modification of height or massing of upper floors. The Applicant acknowledged the importance of context,38 yet created a variety of visual evidence that emphasized the existence of non-conforming buildings. Appellants refuted both the logic and accuracy of the Applicant's "rogue's gallery" of references: MR. NEEDLE: The developer showed us in that meeting, and it's now part of your package, an alternative way of looking at things, which is... which is to point at all the nonconforming, non-historic buildings, the ones that were not part of the historic district, and to show those as the scale by which new development should be measured. [REFERS TO DISPLAY] This to us is really more of a rogue's gallery of what we don't want to be building towards, the exceptions that we don't want to contribute towards additional exceptions. It's not where we think the measure should be at all. It's also inaccurate. It's showing that there is a ten...a seven-story building at the comer of 10th St [and Alton], which is incorrect; it's at the comer of 11 th St.39 The truest measure of compatibility is the adjacent buildings, not those in other blocks. Nonetheless, 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. (d) Even if the non-conforming buildings were permissible as evidence of compatibility, which Appellants vigorously dispute, the record shows that context evidence supplied by the Applicant was deficient and misleading. In the November hearing, the evidence of neighborhood context was grossly defective. Indeed, the plans did not even note the existence of an abutting historic district, and it was pointed out by Appellants that this lack of context made the application incomplete.4o The plans also did not note that the historic properties abutting the site are without even the 20' separation normally afforded by a public alley. More than one DRB member expressed complete unawareness that the project would have such an impact on the rear, 38 See transcript of Feb. 7,2006, p. 44, line 1-5: MR. KARP: I think it's important. That's why we took attention to make this Board, and provide with context and materials of buildings which are in the neighborhood, not only the immediate neighborhood, which are on 9th and 8th but also further away. And that's why we also made it part of the record here, to show you what the context is. 39 Transcript of Feb. 7,2006, p. 6, lines 17-25. 40 "Where these land development regulations require the submittal of site plans, such site plans. ..shall show... (3) Existing zoning and zoning district boundaries." Code Sec. 118-1(a). See, e.g., transcript of Feb. 7,2006, p. 26, line 13-14 (the DRB must protect the historic district "because you're touching it. You don't see it because the site plan is incomplete in so many ways." PAGE 20 ApPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 18871 and one even noted that he had been under the impressi on that the proj ect was on the west side of Alton Road.41 For the February hearing, the Applicant created new context documents whose accuracy was disputed and found erroneous at various points on the record. Besides the mis- located non-conforming building on an aerial map (above at footnote 38), one DRB member questioned the veracity of a photo montage that was supplied: MS LUCE: I guess my question is - and we could all go there tomorrow, and stand right here and look east - and I'm just asking you, before we all do that, make that little trek tomorrow, if in fact this is somewhat of a creative mise en scene, or ifin fact one sees those mas sings from that vantage point today. MR. KARP: You can see them, but again, it's not from the street. ... She concluded by gaining an admission from Applicant that some context evidence, though purporting to represent an actual photo montage, was in fact a composite of actual perspective plus higher-scale buildings that could not be seen from this perspective: MS LUCE: .. .!'m just saying that it is a little bit...in other words, if you were, if we were being asked to look at, once again, compatibility, having a photo montage from this perspective, that does not in fact reflect that perspective, is not entirely helpful for determining the compatibility. MR. KARP: Yes, that is correct, and that's why we didn't take it as a photo montage. So you are right, it is a rendering, and that's why we took a step further and provided the real panoramics from the top of 10th Street, and also the whole block. MS LUCE: OK. MR. KARP: So you are right, it is a rendering, it is not a photo montage, like the back elevation is. MS LUCE: So I'm just saying, it puts your building in a different light, having it against a background of other fairly large buildings, that might not, in fact, be perceivedfrom this vantage point. That's why I just keep coming back with...! don't know, I think it would be really good to finally arrive at some sort of standards for renderings, and what is expected in terms of packages. 42 The use of larger-scale buildings is thus not only inappropriate as a matter of law, but the evidence presented in the hearing was inherently deficient and misleading. (e) Relevant evidence cited bv DRB members after the conclusion of public hearing is not supported in the record. Rather than deliberate whether the project was in compliance with compatibility criteria, the DRB generally assumed that compatibility would be addressed if Applicant agreed to meet the conditions proposed by the Planning Staff. Some DRB members, however 41 E.g., transcript of Nov. 15,2005, p. 32, line 9. 42. Transcript of Feb. 7, 2006, p. 49, lines 12-24 (emphasis added). PAGE 21 ApPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 sought to justify the project by statements that were not supported by the actual record. For example, one DRB member sought to justify approval by suggesting that the Applicant had made significant concessions in an effort to improve compatibility: MR. LEFTON: As I look at this 15 feet, this small change in the 15 feet, is going to completely turn the parking scheme upside-down. I don't how they're going to fix it, but I'm sure they're going to fix it. It seems like a little bit, but it's going to be a big deal for them, as best I can tell. So, I think they're not totally happy, but are willing to move forward and make it work for the neighbors.43 The claim is easily disproven, as site plans submitted by Applicant show the reality behind the increased setback - required parking dropped from 74 in November to 58 in February, due to a change in legal requirements. While Applicant had claimed parking difficulties at the start of the November hearing, there was no evidence of any such difficulties in February.44 Indeed, it is precisely because parking was no longer a concern that Applicant reduced the 2nd-level garage and created the contested 5,000 square feet of double-height for the restaurant. Other misleading suggestions concerned the impact of height. One DRB member disregarded the HP Board resolution to lower infill height and density, and erroneously suggested that infill within the district could be "basically the same height": MR. DAVID: [I]s there a new building, a four or five story residential building, at -- is it 10th and Lenox? MR. KARP: Yes, there is. That's correct, on the comer. MR. DAVID: So it's a brand -- it's not occupied yet, or is it? MR. KARP: Not yet. MR. DAVID: So it's close, but is basically the same height of -- I'm sorry? MR. NEEDLE [AUDIENCE]: 40 feet. MR. DAVID: It's five stories, or four? MR. NEEDLE: [AUDIENCE] 4. MR. DAVID: Four. UNKNOWN: No. MR. NEEDLE [AUDIENCE]: Four -- there's a 40 foot height limit. MR. DAVID: OK, but it's a new building, that's what I'm getting at.45 Another DRB member even went so far as to suggest that there was little difference in impact between a two and five story building.46 For Appellants, as for the Historic 43 Transcript of February 7, 2006, p. 46, lines 10-22. 44 Ironically, this DRB member was not present at the November meeting. 45 Transcript of February 7, 2006, p. 51, line 25 - p. 52, line II. 46 E.g., transcript of Feb. 7,2006, p. 31, lines 13-15: PAGE 22 ApPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 Preservation Board, the differences between 50 and 40 feet, or between 50 and 20 feet, are significant in relation to one and two-story historic buildings. (3) The DRB failed to observe essential requirements of law by allowing a mixed-use design that exceeds maximum commercial density, without properly addressing the impact of additional density on design compatibility relative to 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 ~-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 adjacent 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. As a result, the DRB allowed maximum height and massing when these were not justified. (a) The Miami Beach Code was correctly interpreted by the City Attorney. who suggested that the Miami Beach review criteria may require proiects to reduce FAR. height. or massing if they do not satisfy compatibility requirements. Appellants adopt the view of the Miami Beach Code suggested by the Assistant City Attorney, and believe that the same criteria and reasoning that apply to historic review inside the historic district also apply to design review of historic properties outside the district. The reasonableness of such an interpretation was first discussed in the November hearing: MR. HELD: ...We recently went through an exercise with the HP Board that clarified their authority to require projects to reduce FAR where it's not, where they don't satisfy the HP Board criteria. And I was just reviewing the DRB criteria, which includes compatibility requirements. And I don't think it has actually been determined that this Board does not have authority, where it concludes that a project is not compatible, that they cannot be asked to reduce to MR. NEVILLE: If it was a two-story building, it would be the same thing. That you still have a two-story building 15 feet away from you, it's the same thing. There would be no difference if it was a two-story building; you'd still have a two-story.... PAGE 23 ApPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 make it compatible. And that is something that we can discuss and report back to the board on, but it may be possible that this board does have authority to do that. MR. NEVILLE: I'm simply referring to, and I don't remember where I read these articles - but I try to keep up on these things when I read them - maybe in architectural magazine or somewhere. And I, my memory - and obviously you are the Assistant City Attorney, you probably are more up on this than I am, but I think I've read about lawsuits where it's been established that the developer has the right to build what is allowed in the zoning code and not be required to downsize because of neighborhood opposition or - MR. HELD: Well I wouldn't conclude that just because it happened in one jurisdiction that it's required in all jurisdictions. I mean, we have very strong design review criteria and HP criteria and it may be that the way our code is written it does allow it. It does not mean that we might not be subject to some lawsuit or a legal challenge, but that is something that would have to be reviewed and determined to see whether it's appropriate here.47 Appellants believe that this view is inevitable given that the same interests implicated in Historic Preservation Board review are addressed in Design Review Board review for developments adjacent to the historic district.48 It is clear from this view, as pointed out in February, that FAR and height below the maximum may be required if the various compatibility criteria are not satisfied: MR. HELD: If the gentleman's done. So, just to be clear, and we had this discussion with the HP Board over the last year as well, with a project coming before them, this board does have certain discretion with respect to issues that arise out of the compatibility of projects that are proposed with the existing built environment. And there are at least three design criteria in the code that address that specifically -- the sensitivity to and relationship to and compatibility with surrounding structures. So it's not entirely a question of height and FAR that's been zoned; this board does have some discretion to look at those issues. And it's, it's your job when an application is presented to satisfy your self that those criteria are satisfied. And it may be that in this case, based upon this section that's been presented, that you are satisfied that it's been addressed and the issues that are being raised are really 47 Transcript of Nov. 15,2005, p. 25, line 9 - p. 26, line 2. 48 See id. At lines 3-17: MR. NEEDLE: Can I make one important comment on this point, sir? ... That is, by being in an historic district we are committed forever to maintain this scale and in these specific buildings. In the past in other places you have allowed five-story next to one story and the rationale has been: well, in the future they are going to develop, this one-story will go, and they will be able to, the predominant characteristic will be five stories. The reason that massing and compatibility were put in, as a result of the same issues that we faced years ago, was because these things are essential to historic district preservation. They are directly related to the essence of what a historic district is, and this cannot be more impactful - so you are really exercising the responsibility of the DRB in protecting the historic district because you're touching it.... You must determine that if the massing is too much and it needs to be reduced in order to protect Miami Beach's first historic district. That's what's different about this. PAGE 24 APPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 18871 other issues that need to be addressed either by the Planning Board or to the Commission in the ordinance as a whole. So I just wanted to clarify that, that you're not bound by height and FAR as set in the code; those are, let's say those are aspirations if a project is compatible and sensitive.49 However, as explained below, the DRB chose to exercise a different legal standard. (b) The DRB resisted the City's interpretation of its own design review criteria and espoused an alternative legal theory, biased against the compatibility rights of adiacent historic property owners, that disregards compatibility criteria when they are in conflict with maximum height and FAR. The DRB's alternate legal views were most forcefully articulated by the Chair, who made clear his disagreement with the City Attorney's office in both the November and February meetings. Although not a lawyer (none of the DRB members are lawyers), he suggested in November that his support for maximum zoning - regardless of design criteria - is a matter of both fairness and law: MR. NEVILLE: Another thing that's not fair - and I'm not trying to be confrontational, because I do sympathize with all of you and if I lived there I would have the same reaction - but if the applicant is complying with the zoning rules then we're powerless to tell him to downsize his project. And I think even court cases have demonstrated that's a futile effort. Ifthe zoning code allows him to build such a height or such a setback or such amount of FAR then they are allowed to do that. And the courts have upheld those kind of things. And believe me there have been lawsuits in the past in different areas of the country where that has happened. You know, shading, shading from a building, whatever.so Later in the same hearing he clarified that his resistance to the advice of the Assistant City Attorney was based on a "feeling": MR. NEVILLE: Personally, I am sympathetic, but I don't -- even though Gary mentioned that it really isn't that necessary -- but I still have this strong feeling that, if zoning is allowed and, you know, and the city planners have set up a zoning district, that the applicant should be allowed to build up to that extent.S! Similar comments were made at the February meeting, in response to a suggestion by Appellants that the DRB call for further changes: MR. NEEDLE: They are nice people by the way, I don't have any problem with them. I just don't think there's any incentive to make changes in their building at this point, unless you direct them to make them, or unless the Planning Board creates the overlay environment. MR. NEVILLE: Yeah, I don't think we can direct them.... I'm not sure the DRB has the purview to come and say to the City, and to that project, we can't approve 49 Transcript of Feb. 7,2006, p. 50 Transcript of Nov. 15,2005, p. 23, lines 10-17. 51 Transcript of Nov. 15,2005, p. 36, lines 12-15. PAGE 25 ApPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 18871 you because we agree with you that this zoning district allows for too large of a building. Well, you know, I'm not sure if that's something we could do. And if we did do it, I'm sure if that wouldn't spur a lawsuit by all the people who went and bought property on that road thinking that the zoning district allows them to build "x" amount of square footage, or "x" amount of height, where, you know now, the City's own Design Review Board says, "no, no, no, you can't build that." As noted by Appellants, it is equally true that the property owners in historic districts bought and invested in renovations thinking that the surrounding infill development would be compatible with their historic structures.52 In highlighting the incompatibility of maximum zoning, Appellants were accused at several points of raising issues solely of zoning, rather than specific design review issues impacted by zoning. Ironically, however, in one of those exchanges it was the DRB Chair who admitted that his views of compatibility criteria were entirely subject to the maximum zoning in a district: MR. NEVILLE: Again, you're getting to the zoning district. I don't know how we can protect you when the zoning district allows that size of a building to be built. I mean... MR. NEEDLE: I think at this point if you don't, if the majority of the Board doesn't feel that that extra FAR is inherently incompatible, then I think that you should just examine it from a design standpoint, and just decide, is this massed properly and most sensitively for the Historic District? Do we want to let them take the parking savings and use it to have a nicer restaurant, and displace that 5,000 square feet to affect our historic neighborhood? Those are the design considerations. . .. What you can decide is that this design is incompatible. . .. MR. NEVILLE: Well, yeah, that's what we're here to do, to debate the design of the building. If it's, it's one thing if it's violating all the zoning restrictions, like some of the applicants do - that gives us some teeth. But when it doesn't, it becomes a little bit more difficult, and it's nearly impossible, to say "no, that building cannot take place, and it needs to be 2 stories, and it needs to be, you know, like, 40 feet...." 53 Under this view, compatibility criteria must be discounted as unnecessary to approve a project, or must be deemed satisfied by any relative design improvements - regardless of overwhelming evidence to the contrary. Such a position is inconsistent with the City's position on compatibility with historic properties under the Historic Preservation Board, and cannot be allowed to stand in regard to historic properties impacted by Design Review applications. 52 See transcript of Feb. 7,2006, p. 17, lines 1-6: NEEDLE: This amount of massing just doesn't work adjacent to these - we should be protected, by you, because we are historic properties. We have given up our rights to build this. We gave up our rights by being in the historic district, which, as I've showed you is, and district-wide, it's 75%, 2-story, over 80%, 1- and 2-story. That context needs to be protected. What we have instead, what we have instead is this massing which is 4 times the size of my historic bungalow architecture, where I live. 53 Transcript of Feb. 7,2006, p. 17, lines 10-25. PAGE 26 APPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 (c) Several DRB members endorsed the legal theory of maximum zoning but revealed self-contradictory conclusions, signifying that compatibility criteria were not in fact satisfied but they did not follow the advice of City counsel. Absent real deliberation of the evidence for compatibility, individual DRB members chose to follow the DRB Chair's "strong feeling" to allow maximum zoning. Yet by · honestly admitting their inner discomfort with the maximum zoning, several DRB members arrived at self-contradictory conclusions. Thus, one member acknowledged that the project as "a horror show" for the adjoining historic properties, yet voted to approve the design. 54 Another member articulated a feeling of being "conflicted": MR. LEFTON: .. .And I'm conflicted a little bit here, but I recognize that this developer has development rights, and I think that they've actually done a good job on a very challenging site. Any time you're dealing with this notion of a transition, it's difficult. It's difficult, and I think as a lot of people have been saying, not everybody's going to be completely happy. So, I am supportive of it, I would also be supportive of moving forward to amend the Code and close whatever this loophole may be, in the appropriate fashion. But whatever it may be, this exists today. I think that this project has moved forward with good faith, in the envelope that they've been given. And so, I'm going to be in favor of this project with those...with those conditions. 55 The support to amend the Code and reduce the FAR maximum by 33%, from 2.0 to 1.5, is an implicit concession that the project was incompatible but that "development rights" must trump that provision of the Code. Yet property rights extend to those impacted by incompatible development, and the compatibility criteria "exist" today just as plainly in the City Code. (d) Based on the evidence in this case, Appellants contend that it is inherently unlawful under the Miami Beach Code to exceed the CD-2 maximum FAR without clear and convincing evidence of design compatibility. While the City counsel did not address this question on record, Appellants contend that the ability to circumvent the CD-2 maximum FAR is 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. The subject property is located in a CD-2 commercial, medium-intensity district 54 See fn. 24 supra. The DRB member went on to suggest a further revision of massing: MS. REDFERN: And the example I think of, where it might work to the opposite, is that building on Collins Avenue, almost to the property line of the beach, where on the Collins A venue side it's stepped back very nicely, but when you look at it from Harding, it's just this massive wall. Maybe if you could take that and turn it around, and put more ofthe mass to the Alton Road side, and make the mass so it's not such an imposing structure to the neighborhood. 55 Transcript of February 7, 2006, p. 46, lines 10-22. Even the DRB Chair expressed a belief that FAR should be reduced, albeit not by the DRB and while allowing for mixed-use projects: MR. NEVILLE: I sympathize with the neighbors, and I do hope that the zoning got changed, but I also agree with Gabriella that I think Alton Road could really use projects like this -- mixed-use projects where there's a restaurant or shops or something on the ground floor, and people living above. Transcript of February 7, 2006, p. 56, lines 12-15. PAGE 27 ApPEAL OF FINAL ORDER, MAY 23, 2006 DESIGN REVIEW BOARD FILE No. 18871 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 a separate 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-l low-intensity residential district with a maximum FAR of 1.25, Code Sec. 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). Because a mixed-use CD-2 application effectively bypasses the maximum FAR for CD- 2, the DRB is obligated to determine whether a proposed mixed-use and FAR bonus is consistent with the design review criteria. The Applicant in this case 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. Before approving an FAR increase for mixed-use projects adjacent to low-rise, contributing historic buildings, the DRB should have made a clear and specific finding, based on all available evidence, that the increased use and density is appropriate in this location. Conclusion The undersigned respectfully ask the City Commission to reverse the decision of the DRB, to eliminate the use of the mixed-use FAR loophole as incorporated in this design, and to remand the proposal with instructions to evaluate specific ways that massing and heigh~e com~ t 0-2 development regulations. By: 1 · ~ Bill Farkas, Executive Director Miami Design Preservation League (MDPL) Submitted on behalf of: Arthur Marcus AlA, Chair MDPL Advocacy Committee Allison Cotter, Owner 900 Lenox A venue #2 Andrew Delaplaine, Owner 900 Lenox A venue # 1 Carol Jacque, Owner 914 Lenox Avenue #4 & #5 Mark Needle, Owner 914 Lenox Avenue #4 & #5 Kelly Brock, Owner 932 Lenox #1 & #2 Charles Recher, Owner 910 Lenox Avenue #2 Jean-Luc Blackburn, Owner 932 Lenox #1 & #2 PAGE 28 APPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 18871 ATTACHMENT: CITY 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 I wouldn't want to see that." Board Member 4 "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.... "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 PAGE 29 APPEAL OF FINAL ORDER, MAY 23,2006 DESIGN REVIEW BOARD FILE No. 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.) Victor Diaz, Chair: I think that reasonable people can disagree about [the scope of 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 ifpeople 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-I 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 PAGE 30 APPEAL OF FINAL ORDER, MAY 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-I refonns]. 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-I 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 -1 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-I 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-I 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-l or whatever staff wants to recommend but the Board is giving you definite guidance that we want the RM-210ophole 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. PAGE 31 .. 4! MIAMI BEACH CITY OF MIAMI BEACH NOTICE OF A PUBLIC HEARING NOTICE IS HEREBY given that a public hearing will be held by the City Commission of the City of Miami Beach, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday, June 7, 2006 at 11:15 a.m., regarding A Resolution 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 By Affected Persons Pertaining To DRB File No. 18871. INQUIRIES may be directed to the Planning Department at (305) 6733550. INTERESTED PARTIES are invited to appear at this meeting, or be represented by an agent, or to express their views in writing addressed to the City Commission, c/o the City Clerk, 1700 Convention Center Drive, 1 st Floor, City Hall, Miami Beach, Florida 33139. 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