2007-26690 ResoRESOLUTION NO. 2007-26690
A RESOLUTION OF THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AFFIRMING A DESIGN REVIEW BOARD
DECISION PERTAINING TO DRB FILE NO. 9024,
LOCATED AT 1330 WEST AVENUE.
WHEREAS, Pursuant to City Code Section 118-262, the Waverly at South
Beach Condominium Association, Inc., requested a review of the Design Review
Board decision rendered on October 3, 2006 and May 1, 2007, pertaining to DRB
File No. 9024, fora `Clarification of Conditions' of the original Final Order for
the existing residential structure at 1330 West Avenue; and
WHEREAS, the original Final Order granting Design Review Approval
for the existing Waverly Condominium was issued on August 5, 1997, subject to
the conditions enumerated in the Final Order (DRB File No. 9024); and
WHEREAS, Condition 11 of the original Final Order for the project
states: "A baywalk extension, from the south side of the property north into the
future park area, shall be required; "and
WHEREAS, although the baywalk was constructed, in accordance with
the DRB Final Order, with direct access from 14th Street, a fence has been
constructed along the property line, which prohibits public access to the baywalk;
and
WHEREAS, the applicant came before the Design Review Board on
September 5, 2006 with a request to modify Condition 11 of the DRB Final
Order, and keep the Baywalk closed to the public until certain events occurred.
This request was continued to a date certain of October 3, 2006, at which time the
Design Review Board denied the request to modify Condition 11 of the original
Final Order; and
WHEREAS, the applicant submitted a request for a re-hearing of the
action taken by the Board on October 3, 2006, which was heard on May 1, 2007;
and
WHEREAS, the DRB found that the applicant did not provide sufficient
evidence to support the requested clarification; and
WHEREAS, this appeal by the Association was thereafter filed; and
WHEREAS, 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; and
WHEREAS, in order to reverse or remand a decision of the DRB, a 5/7t"
vote of the City Commission is required; and
WHEREAS, the Administration recommendation states that a review of
the transcripts for the Design Review Board hearing 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; and
WHEREAS, the Administration recommendation states that in addition to
the exhibits submitted by the project applicant (now the appellant), the Board had
before it the recommendation presented by its professional staff in the form of a
comprehensive staff report, as well as the expert testimony of the applicant; and
WHEREAS, the Administration recommendation states that the DRB held
public hearings during which the applicant's representatives and members of the
public testified and presented evidence. Based upon all of the evidence
submitted, the Board concluded that the applicant did not provide just cause to
warrant either a `Clarification of Conditions', or a re-hearing of such request for a
`Clarification of Conditions'; and
WHEREAS, the Mayor and City Commission heard argument of counsel
for the appellant and the City, and found no error in the decision below, that the
DRB provided procedural due process, observed the essential requirements of
law, and based its decision upon substantial, competent evidence; and
WHEREAS, the Mayor and City Commission found that the appellant's
argument was not supported by the record below and was without merit.
Appellant argued that the words "baywalk extension" meant that the appellant
was not obligated to open its baywalk to the public until a baywalk was
constructed and opened on the property to the south of the Waverly. The Mayor
and Commission, however, found that the language in the DRB condition "A
baywalk extension, from the south side of the property north into the future park
area, shall be required, " did not create any timing connection to the south and
was an obligation of the property owner without any precondition of another
baywalk on other property being constructed and opened to the public.
2
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NOW THEREFORE BE IT RESOLVED THAT the Mayor and City Commission
hereby affirm the decision of the Design Review Board in file No. 9024, 1330 West Avenue, the
Waverly, for the reasons stated above. ,~ ~`~
PASSED AND ADOPTED, this 17th day of
AT ST:
~ ~ ~~~,~-
Robert Parcher, City Clerk
APPROVED A O FORM
A UAG & OR EXECUTION
Il S ~'1
T EY G DATE
F:\atto\HELG\Resolutions\DRB File No 9024 - 1380 West Ave -Waverly- RESO.doc
COMMISSION ITEM SUMMARY
Condensed Title:
Pursuant to Miami Beach City Code Section 118-262, the City Commission review of Design Review
Board decisions rendered on October 3, 2006 and May 1, 2007, fora `Clarification of Conditions' of
the original Final Order for the existing residential structure at 1330 West Avenue, requested by the
Waverly at South Beach Condominium Association (DRB File No. 9024).
Key Intended Outcome Supported:
Not Applicable
Supporting Data (Surveys, Environmental Scan, etc.):
Not Applicable
Issue:
Pursuant to Miami Beach City Code Section 118-262, the Administration is requesting that the Mayor and
City Commission review a decision of the Design Review Board pertaining to DRB File No. 9024,
requested by the Waverly at South Beach Condominium Association.
Item Summary/Recommendation:
The Administration recommends that City Commission uphold and affirm the October 3, 2006 and May
1, 2007 decisions of the DRB.
~avllsory t3oara Kecommendation:
The Design Review Board approved the Waverly Condominium Project on August 5, 1997.
The Waverly at South Beach Condominium Association came before the Design Review Board on October
6, 2006 with a request to modify Condition 11 of the August 5, 1997 DRB Final Order; this request was
denied by the Board.
The Waverly at South Beach Condominium Association submitted a request for a re-hearing of the action
taken by the Board on October 3, 2006. On May 1, 2007 the request for a re-hearing was denied by the
DRB.
On September 19, 2007, the Neighborhoods Committee reviewed the subject appeal and the issues
pertaining to the bay walk.
Financial Information:
Cit Clerk's Office Le islative Trackin
Jorge Gomez or Tom Mooney
~ Department Direc~6r ~ Assistant City Manager ~ City Manager ~
m C~IAMIBEACH
ACaENDA ITEM ~~r~
BATE 10-I ~ -O7
m MIAMIBEACH
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: Jorge M. Gonzalez, City Manager
DATE: October 17, 2007
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, CONSIDERING AN APPEAL OF A DESIGN REVIEW
BOARD DECISION PERTAINING TO DRB FILE NO. 9024, LOCATED AT 1330
WEST AVENUE, THE WAVERLY.
ADMINISTRATION RECOMMENDATION
Affirm the decision of the Design Review Board.
BACKGROUND
Pursuant to City Code Section 118-262, The Waverly at South Beach Condominium
Association, is requesting a review of the Design Review Board decision rendered on
October 3, 2006 and May 1, 2007, pertaining to DRB File No. 9024, fora `Clarification of
Conditions' of the original Final Order for the existing residential structure at 1330 West
Avenue.
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.
Design Review Approval for the existing Waverly Condominium was granted on August 5,
1997, subject to the conditions enumerated in the Final Order (DRB File No. 9024). Since
the original approval, the existing structure has become legal non-conforming in terms of
overall height, FAR, parking and with regard to the parking pedestal design.
Condition 11 of the original Final Order for the project states the following:
A baywalk extension, from the south side of the property north into the fufure park
area, shall be required.
Although the ba~nnralk was constructed, in accordance with the DRB Final Order, with direct
access from 14t Street, a fence has been constructed along the west property line in order
to prohibit public access to the baywalk.
October 17, 2007
Commission Memorandum
Appeal of DRB File No. 9024
Page 2 of 3
The applicant came before the Design Review Board on September 5, 2006 with a request
to modify Condition 11 of the DRB Final Order, and keep the Baywalk closed to the public.
This request was continued to a date certain of October 3, 2006, at which time the Design
Review Board denied the request to modify Condition 11 of the original Final Order.
The applicant submitted a request for a re-hearing of the action taken by the Board on
October 3, 2006. The initial request for a re-hearing came before the Board on December 5,
2006, and it was continued to a date certain of February 6, 2007, at the request of the
applicant. On February 6, 2007 the re-hearing was again continued at the request of the
applicant to April 5, 2007, at which time the Board continued the matter to May 1, 2007,
again at the request of the applicant.
On May 1, 2007 the request for a re-hearing was considered by the DRB. Section 118-261
of the Miami Beach City Code specifies that the design review board may consider a petition
for rehearing by the applicant, the owner(s) of the subject property, the city manager, an
affected person, Miami Design Preservation League, or Dade Heritage Trust. For purposes
of this section, "affected person" shall mean either a person owning property within 375 feet
of the applicant's project reviewed by the board, or a person that appeared before the board
(directly or represented by counsel), and whose appearance is confirmed in the record of the
board's public hearing(s) for such project. The petition for rehearing must demonstrate to the
board that:
There is newly discovered evidence which will probably change the result if a
rehearing is granted; or
2. The board has overlooked or failed to consider something which renders the
decision issued erroneous.
If the board decides to rehear a case, it may take additional testimony and either reaffirm its
previous decision or issue a new decision reversing or modifying their previous decision.
The following were the factual bases for the re-hearing petition submitted by the applicants
to the DRB:
Transcript of the July 24, 1997 Shoreline Review Committee hearing.
2. A copy of an October 24, 2006 a-mail exchange between the applicant's
attorney and city staff.
The DRB found that the applicant did not provide sufficient evidence to support the
requested clarification. The DRB's decision was based upon the fact that the applicant did
not provide evidence of what the original DRB discussed and considered in arriving at the
conditions. Additionally, with regard to item 1, the discussions had during the Shoreline
Review Committee hearing did not mirror the conditions imposed by the City's Design
Review Board and were not adopted by the Design Review Board. Accordingly, the
applicant was not relieved from opening the baywalk, as it failed to provide sufficient
evidence to warrant the proposed clarification. Regarding item 2, the DRB determined that
all conditions of the Final Order shall be duly enforced.
October 17, 2007
Commission Memorandum
Appeal of DRB File No. 9024
Page 3 of 3
The DRB concluded that the applicant did not provide just cause to warrant a re-hearing of
the previous request for a clarification, and denied the request for a re-hearing.
On May 22, 2007 the applicant filed this appeal of the Board decision to the City
Commission.
ANALYSIS:
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 5/7th vote of the City Commission is
required.
A review of the transcripts for the Design Review Board hearing 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.
In addition to the exhibits submitted by the project applicant (now the appellant), the Board
had before it the recommendation presented by its professional staff in the form of a
comprehensive staff report, as well as the expert testimony of the applicant.
Finally, the Board held public hearings during which the applicant's representatives and
members of the public testified and presented evidence. Based upon all of the evidence
submitted, the Board concluded that the applicant did not provide just cause to warrant either
a 'Clarification of Conditions', nor a re-hearing of such request fora `Clarification of
Conditions'.
CONCLUSION
The Administration recommends that the Mayor and City Commission affirm the decision of
the Design Review Board (DRB) pertaining to DRB File No. 9024 (1330 West Avenue),
wherein it denied a request fora `Clarification of Conditions and a request for a re-hearing:
JMG/TH/JGG/TRM
T:WGENDA12007\oct17071RegularlDRB File No 9024- MEM OCT REVISED.doc