LTC 303-2022 Favorable Ruling in Appeal of HPB Approval of Delano Hotel Project In Re 1685 Collins Avenue (the Delano)303-2022
/\Al/i/\/\1 CH
OFFICE OF THE C ITY ATTORNEY
LTC No. ______ _
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Rafael A. Paz , City Attorney ~
DATE: July 26 , 2022
SUBJECT: Favorable Ruling in Appeal of HPB Approval of Delano Hotel Project
In Re: 1685 Collins Avenue (the "Delano")
The purpose of this L TC is to advise you of the City's recent victory in an appeal from the
Historic Preservation Board 's approval of a Certificate of Appropriateness for the Delano.
I am pleased to inform you that Special Magistrate Craig Coller affirmed the HPB's
approval of the Delano renovation project in the case of In re : 1685 Collins Avenue, Miami
Beach, Florida.
With its prominent location in the Collins Avenue hotel corridor , the Delano is a crown
jewel of Art Deco architecture and an important part of Miami Beach history . The building ,
designed by architect B. Robert Swartburg , was substantially redesigned by architect
Philippe Stark in 1994.
On February 24 , 2022 , the HPB approved a Certificate of Appropriateness for the
applicant's contemporary reinterpretation of the original design , honoring and reviving
original architectural aspects while also upgrading the property to comply with the
Americans with Disabilities Act.
Two neighboring hotels appealed the HPB's decision , seeking to delay the renovation by
arguing that the HPB failed to comply with the City Code's procedural and zoning
requirements . After considering the parties' briefs and arguments, Special Magistrate
Coller ruled that all of the objectors ' arguments were waived and/or lacked merit.
The City's case was litigated entirely in -house by Deputy City Attorney Nick Kallergis ,
First Assistant City Attorney Henry Hunnefeld , and Senior Assistant City Attorney Freddi
Mack , with Freddi Mack presenting the argument on behalf of the Historic Preservation
Board .
A copy of the Special Magistrate's 30-page Order is attached .
Feel free to contact me or Chief Deputy City Attorn ey Robert Rosenwald for f urther
information about this or any City litigation matter.
BEFORE THE SPECIAL MAGISTRATE
FOR THE HISTORIC PRESERVATION BOARD
IN RE: 1685 COLLINS AVENUE
MIAMI BEACH, FLORIDA
ORDER
CASE NO. SM 2022-003
HPB FILE NO. 17-0176
This Order addresses the appeal taken by FBJ Sagamore, LLC's
("Sagamore") and Di Lido Beach Hotel Corporation's ("Ritz") (collectively,
"Appellants") from the order of the Historic Preservation Board (Board), dated
February 24, 2022, approving Appellee/Applicant Beach Hotel Associates
LLC's ("Applicant," or "Appellee") application for a Certificate of
Appropriateness with conditions.
The Project
The subject property located at 1685 Collins Avenue is improved with
a contributing building formally known as the "Delano Hotel" ("Property" or
"Hotel). The original design by Architect B. Robert Swartburg in 1948 had
been substantially redesigned by Architect Philippe Stark in 1994.
The Applicant sought approval for "a contemporary reinterpretation of
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the original design which honors and revives original aspects such as the
recreation of the dining room in the back of the first floor of the mezzanine"
and with a scope "including the reconstruction of original floor plates,
modification to the rear cabana building and site improvements." Vol. 1 at A.
00011, A.000062-661 ("Project"}. As a contributing historic property within the
Ocean Drive/Collins Avenue Historic District, the proposed modifications
required the approval of a Certificate of Appropriateness.
In general, Applicant's proposed plan seeks to: restore some of the
Hotel's classic elements including original interior floor plates and octagonal
columns, activate a fourth-level roof into a usable terrace; improve
landscaping to enhance the view from a pedestrian's perspective; and
upgrade the property to comply with American Disability Act requirements.
As is typical with many projects subject to public hearing, the Applicant's
first letter of intent and initial plans submitted in October of 2021, (Vol. 1 at
A.000050-61; Vol. 2 at A.000194-320} were subsequently revised in
December of that year. Vol. 1 at A.000062-66; A.000326-482. Indeed, the
initial submission contained request for variances related to proposed ADA
ramps and variances related to dune preservation overlay, oceanfront
1 The Special Magistrate, unless otherwise indicated, will use the references
provided in Appellants' appendix.
2
bulkhead setback, open space, and view corridor in the rear yard of the
property. Vol. 1 at A.00053-57. The Applicant in its revised application was
able to avoid such variances. It is the revision submitted in December of 2022
that is subject of this review, the initial submission being wholly irrelevant.
Also, very typical of projects subject to public hearing, this property's
proposed site plan contains hashed out areas, that while v isible, are clearly
intended to show no changes to the exist ing property.
Department Recommendation
As noted in its report, "[S]taff recommends the application be approved
subject to the conditions enumerated in the attached draft Order, which
address the inconsistencies w ith the aforementioned Certificate of
Appropriateness criter ia. [Emphasis original]" Vol. 1 A. 000019. The proposed
modifications were addressed in Staff's report. 2
Regarding the front yard and porch modifications, Staff was in support of a
new driveway configuration including a reduction in paving and a narrowing of
curb cuts. The Staff was also in support of the proposed landscaping noting
that, "[t]he dense hedges are proposed to be removed and replaced with low
landscape materials. These modifications are a welcome improvement over
2 Staff's recommendation and its conditions for approval are consistent with
its findings regarding required review criteria. Id. at p. A.000012-000017.
3
current conditions and will open views to the historic front fa9ade and will
enhance the porch area and will enhance the pedestrian experience along this
portion of Collins Avenue." Id. at 000018.
Staff noted that within the front porch area, the existing terrazzo steps
and porch floor are proposed to be retained and restored. Also, ramps are
proposed to connect Collins Avenue to the front stair landing up to the porch
level, and from the left side of the porch area to the lobby level. An additional
ramp to maintain the original symmetric design is planned on the right side.
These ramps will be finished in terrazzo to match the existing area. Id.
The Staff had no objection to modifying existing windows in the front
fa9ade to convert them to doors next to existing doors. Staff observed that the
proposal to change the front planter to a water feature would be a change from
the original design. Accordingly, as a condition of approval , Staff required that
the shape of the planter would be maintained. Id. Indeed, Staff's condition
appears as part of the Board's final order. Section I C. 1.c. Id at p.000002.
Regarding the lobby and mezzanine modifications, the Applicant is
proposing to renovate and partially restore the existing lobby compatible with
the existing architecture including the restoration of the octagon columns,
which had been mostly obscured by the Phillipe Stark reconstruction in 1994.
Staff did have concerns regarding the terrazzo flooring to determine if the
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existing floor underneath the wood floors introduced by Stark could be
restored. Staff required that if the terrazzo floor was beyond repair that a new
terrazzo floor match the existing. Id. at p. 000018-19. The Staff's condition
appears as part of the Board's order at Section I. C. 1. d. Id. at p.000002.
The Staff recommendation observed that the most "notable" modification
was the reintroduction of the original mezzanine bridge that had been
demolished in Stark's 1994 renovation . Staff cited to a recent Miami Beach
code amendment that allowed the Board to approve such a restoration even if
the site is nonconforming as to floor area ratio (FAR). With respect to this
aspect of the development, the recommendation provides: "Staff is extremely
supported of reintroduction of the mezzanine bridge and that the Board
approve the reintroduction introduction of this original floor plate." Id. at
p.000019.
As to the proposed renovations of the rear dining room and 4th floor
terrace, Staff indicated that the Stark 1994 renovation removed the angled
portion of the dining room at the ground level except for the wall parallel to 18th
Street. Applicant's proposal is to reconstruct portions of the original exterior
wall and the roof to expand the outdoor covered dining area. The
recommendation provides: "Staff is supportive of the reintroduction of this area
as it will contribute to the better understanding of the original design . The roof
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of the expanded dining area will connect to the existing 4th level roof terrace
and is proposed to contain a shallow pool and, cabanas and dining area." Id.
Staff also addressed the modifications of the 2-story rear cabana
structure and rear yard, which included, among other things, replacement of
doors and windows, the extension of a 4-foot wall to hide mechanical
equipment, hardscape and landscape improvements, and several outdoor
bar counters. Staff indicated, that "it had no significant concerns with the
modification proposed and believes that the overall design is appropriate for
casual beachfront dining.'' Id.
However, Staff did raise a concern that the "cabanas located along the
south property line do not appear to comply with required setbacks." Id. The
Board's order contained a specific condition that addressed this issue. Under
Section I. C.1.h. the order states: "Cabanas and associated paving shall
comply with required minimum setbacks." Id at p.000002
Also, certain catch all provisions of the order address the entire
development regarding any inconsistencies with the City of Miami Beach
Code, includ i ng Section I. C.1.g. that requires consistency with the Dune
Preservation Overly District for all proposed improvements, and Section Ill. K.
that provides, "Nothing in this order authorizes violation of the City Code or
other applicable la'-'¥, nor allows a relaxation of any requirement or standard
6
set forth in the City Code." Id. at p. 000002, 000005. Finally, is this provision
in the order, "The issuance of approval does not relieve the applicant from
obtaining all other required Municipal, County and/or State reviews or permits,
including final zoning approval." Id. at p. 000005
Staff concluded its analysis of the Project as follows: "Staff has no
objection to the modifications proposed as they will not have an adverse
impact on the Contributing building and do not require the demolition of any
significant architectural features. In summary staff is supportive of the
proposed project as noted below." Id. at p.000019.
Hearing before the Board
Notice and the Exclusion requirement of Late Filed Objections
An extensive hearing was held before the Board on February 8, 2022.
Transcript pp. 1-583 . That hearing was noticed by mail on January 6, 2022.
Appellee City of Miami Beach ("City") Appendix p. SA001. That notice in
pertinent part provides: "Members of the public wishing to submit audio visual
materials are requested to submit such materials via email as an attachment
to planningaudiovisual@miamibeachfl.gov no less than three days prior to the
3 The transcript is included in Volume 3 of Appellants' appendix and
references will simply refer to the transcript page number rather than
Appellants' Volume and numbering.
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meeting." [Emphasis supplied] Id. Similar language appears in the
advertisement of the meeting that the record shows was published in
"Neighbors" on December 26, 2001. Vol. 1 A.000007. Also, the advertised
notice, but not in the mailed notice states as follows:
These applications have been filed with the Planning Department
for review by the Historic Preservation Board and will be considered
pursuant to the Board's authority in accordance with Sec. 118-102
of the City's Land Development Regulations. Written comments
may be addressed to the Historic Preservation Board via email at
HPB@miamibeachfl.gov by 5:00pm three business days before
the meeting ....
Finally, regarding other types of written materials, both the notice and
the advertisement for the meeting states as follows: "Members of the public
who wish to provide testimony and/or submit evidence in support or in
opposition to an item scheduled to be heard may appear in person and will be
required to wear facial coverings and observe social distancing consistent with
CDC guidance ... " Id.
The language of the notice as when material should be filed is relevant
because the Appellants did not follow the directions of the advertised notice,
but rather filed their notice on a Sunday, February 7th the day before the
hearing that was held on Monday, February 8th•4
4 The City, joined by the Applicant, argues that the notice/advertisement
requires the exclusion of Appellants last minute written submission of
arguments submitted the day before the hearing date. While such late filing
8
Testimony
City Staff presented its recommendation in support of the application.
Transcript at pp. 3-5. Counsel for the Applicant made a full presentation
covering all aspects of the proposed redevelopment. Specifically, the
Applicant's architect and landscape architect explained the details of the
renovation. Id. at pp. 13-18. Their testimony was consistent with the detailed
analysis that Staff had presented in their recommendation. Vol 1 pp.
A.00000019.
As previously noted, the Appellants represented by counsel filed a letter
of objection consisting of seven pages on a Sunday, the day before the
hearing held Monday, February 8th. Id. at A.000139-000145. Appellants
passed this letter to the Board members as part of their objection to the
application. Transcript at p. 21. Counsel chose not to provide as part of his
presentation, an explanation of the points raised in the letter. "So rather than
spending a lot of time going into the details on my objections, I provided in
may be poor practice, the notice states no penalty for failure to comply, such
as excluding all such materials from, consideration . While the exclusion of last-
minute filings is a laudable goal, it should far more explicit and ideally part of
the City's Code. See, e.g., Section 33-311(0), Code of Miami-Dade County
Florida. Of course, even if the filing is not excluded, it does not excuse
the objector from .detailing the objections before the Board. This issue is
discussed in more detail later in this Order.
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writing, and I'll provide another copy into the record." He describe in very
general terms, issues covered in the late filed written objections:
We are also submitting a copy of this letter into the record.
The letter raises issues related to the project, not complying with
regulations of the zoning district, not complying with the certificate
of appropriateness requirements, and also not complying with the
variance laws.
To save the time before this board, it laid out all the numerous
conditions, existing and proposed, which do not comply with the
zoning code and other non-compliant code issues, which are
related to the application. I note that the original request for ten
variances was withdrawn, but the non-conforming zoning violations
remain in the plans. [Id. at p. 22.]
Counsel for the Appellants did raise in his presentation before the Board,
that the plan fails to show the location of loading spaces, which the Appellants'
counsel argued was a traffic issue. Id.
Additionally, Appellants' counsel asserted there was, an:
" ... increase of a 331-person occupancy on the fourth level that was
never there before. There's no indication of a requirement to a
CUP, nor is there any evaluation of traffic in the file, usual and
customary when a project has substantial changes that affect the
uses, or modify the uses, or change uses in different locat ions. It's
usually required to be documented into the file and a matter of
public record .... " [Id. at p.23.]
At this point of the proceedings counsel for the Appellants was asked if
he needed more time. Id. He responded, "I'm going to need one more minute.
I will be done." Id. At which point, counsel continued to raise concerns
regarding the rooftop pool area. "It seems like there's a substantial increase in
10
occupancy use. So this is the type of -exactly the type of thing that should go
to the CUP, but isn't properly documented in the file. So it needs to be done."
Id. at p.24. Counsel also raised an issue of the pool area and noise and the
impact that it could have on his clients. Id. With that, the Appellants completed
their presentation before the Board.
In contrast to the Appellants' objection was the support the Applicant
receive from nearby properties. Counsel for the National Hotel, who identified
that his client the owner Daphnie Dray was present, advised the Board that the
National Hotel located at 1677 Collins Avenue is right next door to the Delano.
Id. at p. 25. He noted that his client supports the plan and stated, "Like any
good neighbor, the Delano proposes a plan that is sensitive to its adjacent
properties, neighbors, as well as the surrounding historic district, and that's why
we urge you to approve this application for the certificate of appropriateness."
Id.
Ms. Dray the owner of the National Hotel testified as well:
So I just wanted to say hello to everyone, and thank you for your
talent to keep Miami Beach what it is. This is amazing, and I want
really to thank the team of Mr. Goldstein to present such and an
amazing renovation.
Miami is going to be so--that's really-I'm just very emotional
because I'm very surprised of what Mr. Robbins [Appellants'
counsel] came to say because the only people that are really going
to be impacte<:f by those renovation (sic) is the National Hotel, but
we are so free and so happy to have this historical building that is
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going to be renovated in such an amazing way, that we are
approving the project and thanking you to approve it as well. Thank
you very much. [Id. p. at 26.]
The Board heard from another close neighbor of the Delano, the
Shelborne Hotel, represented by Sangro Sher from Claro Development. He
testified that he met with the applicant reviewed their information and is in
support of the "very tasteful renovation." Id. at p. 27. He concluded his remarks
by stating : "So I wanted to tell you that another proximate and close neighbor
feels strongly that this is something that should be approved and moved
forward. So I hope you can do that." Id.
Also in support of the application was the Miami Design Preservation
League, represented by Mr. Daniel Giraldo. He testified:
Now it's great to see this new life for the Delano, which still will
maintain its historic integrity, but also be certain of the things that
were done in the Stark time will be kind of refreshed and brough
back to the original.
So we're very happy with those aspects of the project. Also, its
great to see a historic property being renovated without a large
tower, which we're seeing more and more of around town. So we
do commend the applicants for their efforts, and we look forward to
the Delano being restored and reopened soon. [Id. at p. 26-27]
The Applicant and City Staff responded to the presentation by Appellants'
counsel. Regarding Appellants' claim of increased occupancy due to the
rooftop pool renovation, the Applicant's representative testified:
MR. KASDEN: If I may just respond briefly? Two things--and I'll
12
deal with the occupancy issue. The occupancy issue is one that, if
there is a change in occupancy, it would be dealt with through a
CUP at the planning board. But I will tell you, there is no
proposal to increase the overall occupancy of the property.
[Emphasis supplied][/d. p. 40.]
Ms. Tackett, City of Miami Beach Staff representative, provided further
information regarding increased occupancy:
And just to further that, we will be reviewing their occupancy, their
seat count, which areas are open to the _public, which areas are
for hotel guests only, during the building permit review process.
If they trigger a requirement for a conditional use permit, through
the planning board, due to their occupancy, they will be heard at
the planning board, but that's not the purview of this board, but
that is definitely part of the review during the permitting. [Id. at
40-41.]
Ms. Tackett also addressed Appellant counsel's other argument
asserted at the public hearing regarding the lack of loading spaces:
The loading spaces --again, because they're not intensifying at
this point --at least, we don't believe this is an intensification of
use. There're no new hotel units, right? They're all existing. And
there's no change of use. Right now, you have a hotel with
accessory restaurant and alcoholic beverage establishment.
Because there is no change of use that we've identified,
there's no requirement for loading.
If they go through a conditional use process, the planning board
would be reviewing circulation loading in their operational plan,
as part of that review. But, at this point, you know, from staff's
perspective, it does not appear that loading spaces or a
waiver from the loading requirements is required. [Emphasis
supplied] [Id. at p. 41.]
At the conclusion of the hearing, the Board voted unanimously to
13
approve the Certificate of Appropriateness. Id. at p. 57 -58. This appeal
followed.
Standard of Review
At the outset, it is important to set forth the limited nature of the review
before the Special Magistrate. Miami Beach Code, Section 118-9(c)(4)
provides that in the review an order of the Historic Preservation Board, the
Special Magistrate must determine whether: (a) procedural due process was
accorded, (b) the essential requirements of law were observed, and (c) the
decision was supported by substantial competent evidence.
The City's code, although an appeal, has mimicked the review provided
from what ordinarily would be a review from an administrative decision to circuit
court known as "first tier certiorari" review. See Broward Cty. v. G.B. V. Int'/, 787
So. 2d 838 (Fla. 2001}; City of Deerfield Beach v. Vail/ant, 419 So. 2d 624 (Fla.
1982); Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla.
1995).
A local government's quasi-judicial decision must be upheld if there is
any competent substantial evidence supporting it. Dorian v. Davis, 87 4 So. 2d
661 (Fla. 5th DCA 2004 ); Eckler v. Orange County, 763 So. 2d 545 (Fla . 5th
DCA 2000) (holding that a quasi-judicial determination by a local government
should be upheld if any valid reason is supported by the record).
14
In Dusseau v. Metro. Dade County Bd. of County Com'rs, 794 So. 2d
1270, 1275-76 (Fla. 2001), the Florida Supreme Court clarified that:
The sole issue before the court on first-tier certiorari review is
whether the agency's decision is lawful. The [circuit] court's task ...
is simple: The court must review the record to assess the
evidentiary support for the agency's decision. Evidence contrary
to the agency's decision is outside the scope of the inquiry at
this point, for the reviewing court above all cannot reweigh the
"pros and cons" of conflicting evidence. While contrary
evidence may be relevant to the wisdom of the decision, it is
irrelevant to the lawfulness of the decision. As long as the
record contains competent substantial evidence to support the
agency's decision, the decision is presumed lawful and the court's
job is ended. [Emphasis supplied]
Accord, Town of Manalapan v. Gyongyosi, 828 So. 2d 1029, 1034 (Fla. 4th
DCA 2002); see also Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089,
1093 (Fla. 2000) (holding that where the circuit court "substituted its judgment
for that of the City ... the circuit court departed from the essential requirements
of the law"); City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857
So. 2d 202, 206 (Fla. 3rd DCA 2003) (holding that reweighing the evidence is
synonymous with failing to observe the essential requirements of the law).
In reviewing the City's decision on "first tier" certiorari "the circuit court's
[or in this case the Special Magistrate's] task is to review the record for
evidence that supports the agency's decision, not that rebuts it -for the court
cannot reweigh the evidence. [Emphasis original]" Broward Cty. v. G.B. V. Int'/,
15
787 So. 2d 838, 846 n.25 (Fla . 2001 ); See Haines City Cmty. Dev. v. Heggs,
658 So. 2d 523, 530 (Fla. 1995).
Appellants were Afforded Due Process
Appellants have not argued nor demonstrated that they were not given
notice or did not have the opportunity to be heard. See Carillon Cmty.
Residential v. Seminole Cnty, 45 S . 3d 7, 9(Fla. 5th DCA 2010)("The 'core' of
due process is the right to notice and an opportunity to be heard. LaChance v.
Erickson, 533 US 262 (1998) [parallel citations omitted]"). Appellants cla im [not
argued before the Board and therefore waived] that they were denied "due
process" because the Board approved a site plan that had hash marks to
indicate where work was not done. Appellants' Initial Brief at p.19 . This, of
course, has nothing to do with procedural due process.
Indeed, in advance of the hearing, Appellants were aware of the hash
marked site plan as evidenced by their belatedly filed objections the Sunday
before the Monday morning Board hearing. They had the opportunity to be
heard on this issue but failed to raise the issue in their presentation before the
Board. Accordingly, the Appellants had notice of the hash marked areas and
were given the opportuniy but chose not to be heard on this issue. Cf. Davis
Islands Civic Ass'n v. City of Tampa, No. 05-5809, 2006 WL 408058, at *2-*4(
Fla. 13th Jud. Cir. c ·t. Jan. 25, 2006 (alleged deficiencies in, and amendments
16
made to, site plans did not violate due process where objectors had the ability
to review the plans and "received a full and fair opportunity to voice their
concerns and be heard").
Board's Decision Supported by Substantial Competent Evidence, and
Essential Requirements of Law were Observed
Department Recommendation and Staff Testimony Constitute
Substantial Competent Evidence
The Department's recommendation together with the testimony of the
Department representative Ms. Tackett, alone constitutes substantial
competent evidence to support the Historic Preservations Board's approval of
the Certificate of Appropriateness. 5 See Village of Palmetto Bay v. Palmer
Trinity Private Sehl., Inc., 128 So. 3d 19, 26-27 (Fla. 3rd DCA 2012) (staff report
recommendation, in which "all applicable criteria" were reviewed, constitutes
competent substantial evidence); City of Hialeah Gardens v. Miami-Dade
Charter Found., Inc., 857 So. 2d 202, 205 (Fla. 3rd DCA 2003) (testimony of
professional staff, when based on professional experiences and personal
5 Of course, the testimony in support of the Project from the owners of the
National and Shelborne Hotels that are directly impacted by the proposed
renovation, provided additional substantial competent evidence and in stark
contrast to the impacts that Appellants asserted, which facilities as counsel
noted "was down the block." Transcript at p.22.
17
observations and information in application and site plan constitute competent
substantial evidence).
Late Filed Objections, While Not Excluded from the Hearing, Did Not
Relieve the Obligation of Appellants to Present to the Board their Specific
Objections
The Appellants have raised certain issues jn opposition to the Certificate
of Appropriateness in its late filed memorandum delivered on Sunday, before
the Board's Monday morning hearing. As noted in Footnote 4 to this Order
supra, the City, joined by the Applicant, believe that according to the
instructions in the mailed notice and advertisement of the hearing, that this
document should be excluded from consideration.
The notice and advertisement are not explicit in that the instructions do
not provide that the filing is required three days prior to the hearing, otherwise
the material will be excluded from the hearing. Time limits without penalties for
failure to comply are viewed as directory. See, e.g., Brown v. Pumpian, 504
So. 2d 481, 482 (Fla. 1st DCA 1987) ('[A]s a general rule statutes setting the
time when a thing is to be done are regarded as merely directory, where no
provision restraining the doing of it after that time is included and the act in
question is not one upon which court jurisdiction depends.")
Notwithstanding that the late filed material is not excluded from the
hearing, it did not relieve Appellants' obligation to explicitly detail every
18
objection and factual basis for it in their presentation before the Board. The
purpose of which, is to give the Board and Staff (as well as the Applicant) an
opportunity to consider and respond to those objections. Appellants vague
references to, "not complying with regulations of the zoning district, not
complying with the certificate of appropriateness requirements, and also not
complying with the variance laws code violations," was wholly insufficient to
preserve error. Transcript at p.22. Additionally1 Appellants merely referencing
their 11 th hour filing stating, "To save time before this board, it laid out all
numerous conditions, existing and proposed, which do not comply with the
zoning code and other non-compliant issues, which are related to the
application" is equally vague and wholly insufficient to preserve error. Id.
It is a fundamental principal of appellate review that issues not
specifically raised before the lower tribunal may not be raised for the first time
on appeal. Commission on Ethics v. Barker, 677 So. 2d 254 (Fla. 1996);
Fredericson v. Levinson, 495 So. 2d 1156, 1158 (Fla. 5th DCA 1986). This
requirement applies equally to appeals from administrative tribunals . First City
Savings Corp. of Texas v. S & B Partners, 548 So. 2d 855 (Fla. 5th DCA 1989)
( condemning the practice of "sand bagging" local government bodies by
withholding issues until after decision-making is final); See Clear Channel
Communications v. North Bay Village, 911 So. 2d 188, 190 (Fla. 3rd DCA 2005)
19
("The purpose for requiring a contemporaneous objection is to put the trial
judge [in the case the Board] on notice of a possible error, to afford an
opportunity to correct the error early in the proceedings, and to prevent a litigant
from not challenging an so that he or may later use it as a tactical advantage.");
Ferguson v. State, 417 So. 2d 639, 642 (Fla. 1982) (holding that objections
must be made with sufficient specificity to apprise the trial judge [ or in this case
the Board] of potential error and to preserve the point for appellate for appellate
review, general objections are insufficient); See Fort Lauderdale Board of
Adjustment v. Nash, 413 So. 2d 855 (Fla. 4th DCA 1982); Dade County v.
Marca, S.A. 326 So. 2d 183 (Fla. 1976).
The Florida Supreme Court has articulated the rationale for raising
objections before the administrative body in a zoning context, which equally
applies here:
The administrative boards usually provided for the consideration
and review of zoning problems are made of local people, having
the advantage of full local information as to the reasons behind
the various zoning regulations. Their findings, while not
conclusive, are indeed helpful in the ultimate determination of the
rights of the parties, Moreover, the inequalities of a zoning
ordinance, if called to the attention of such local administrative
boards. May frequently be adjusted at that level. Such boards
should, at least, be given an opportunity to afford relief, or state
their reasons for not doing so.
De Carlo v. Town of West Miami, 49 So. 2d 596, 597 (Fla. 1950)
20
Accordingly, the Special Magistrate finds that those matters in
Appellants' objection letter not expressly raised in the presentation before the
Board were waived. In this case, the only matters that were specifically brought
to the attention of the Board were the objection that there was no loading area
shown and the concern that a rooftop pool area that would accommodate 331
persons (characterized by the Appellants as an increase in occupancy) would
require a potential conditional use permit and an evaluation of traffic. Transcript
at p. 23. 6
Appellants Preserved Objections are Without Merit
Both objections were clearly without merit based on the testimony of the
Applicant and Staff. First, as to a required loading area, Ms. Tackett explained
that the development did not create an intensification of use as there are no
additional hotel units, and that there was no change of use identified and thus
no requirement for loading . She noted that if the Applicant is ultimately required
to go through a conditional use permit, the Planning Board, which would have
jurisdiction, "would be reviewing the circulation loading in their operational plan
as part of that review." Transcript at 41.
6 Appellants' counsel did suggest that this use "could' cause a problem with
noise, however, that concern was not shared by the Applicant's proximate
neighbors the National or the Shel borne Hotels. Id at p. 24-27.
21
Second, the Appellants' concern regarding impacts from what it termed
a 311 increase in occupancy from the pool deck was also without merit. The
Applicant's representative stated: "If there is a change in occupancy, it would
be dealt with through a CUP at the planning board. But I will tell you there is
no proposal to increase the overall occupancy of the property. [Emphasis
supplied] Id. at p.40. Ms. Tackett testified that Staff would be "reviewing their
occupancy, their seat count, which areas are open to the public, which areas
are for hotel guests only during the building permit review process." Id, She
advised that if the Applicant triggers a conditional use process that would be
heard by the Planning Board not this Board. Id.
This is consistent with the conditions of approval in the Board's order.
"Nothing in this order authorizes violation of the City Code or other applicable
law, nor allows a relaxation of any requirement or standard set forth in the City
Code" Board's order Section Ill. K. Vol. 1 at p. A .000005. Also, "The issuance
of the approval does not relieve the applicant from obtaining all other required
Municipal, County and/or State reviews and permits, including final zoning
approval" Id. 7
7 As the City points out in it answer brief at p.31 Section 118-561 of the City
Code expressly empowers the Board to impose reasonable conditions on its
approval. That provision provides in pertinent part: "Violation of such conditions
and safeguards, when made a part of the terms under which the certificate of
22
Appellants Non-Preserved Objections Are Also Without Merit
While the Special Magistrate has determined that all other objections not
specifically raised by the Appellants in their presentation before the Board are
waived, for efficiency of further review of this matter, the Special Magistrate
addresses those waived claims.
Traffic Analysis not Required
Appellants raise that Section 118-562(b )(9) of the City Code requires that
this Project as a commercial project that exceeds 5000 square feet, requires a
transportation analysis prepared by a traffic engineer. Besides not arguing this
section of the City Code before Board, this citation and argument is not even
included in the late filed objection letter. 8
appropriateness is granted, shall be deemed a violation of these land
development regulations."
8 Appellants only mention of "evaluation of traffic was in the context of 331-
person rooftop pool deck, which Appellants characterized as an increase in
occupancy. Transcript at p.23. The Applicant countered there was no proposal
for an increase in occupancy [Id. at 40], and Staff noted that they will be
reviewing their seat count and "[i]f they trigger a requirement for a conditional
use permit, through the planning board, due to their occupancy, they will be
heard by the planning board, but that not within the purview of this board, but
that is definitely part of the review during the permitting." Transcript at p. 40-
41.
23
The City disagrees with Appe11ants' interpretation of this section of the
City Code. The City asserts that this section of the City's Code does not
mandate a transportation plan for every proposed project, but only if the project
would increase intensity or add 5000 square feet. In this case, there is no
increase in intensity or occupancy. The City argues that this is essentially a
renovation project, and the Project is "functionally 'grandfathered' in and no
new analysis is necessary." City's Answer Brief at p.36. The City cites to the
chart which is part of this record reflecting no increase in occupancy. Vol. 2. at
A.000331.
The governing rule of law is that an agency's interpretation of a statue or
regulation that the agency is charged with administering will be given great
deference by the courts and will not be overturned unless clearly erroneous or
contrary to law. See Murciano v. State 208 So. 3d 130 (Fla 3rd DCA 2016);
Metropolitan Dade County v. P. J. Birds Inc., 654 So. 2d 170, 175 (Fla . 3rd DCA
1995). Legal Envtl. Assistance Found., Inc. v. Board of County Comm'rs of
Brevard County, 642 So. 2d 1081, 1083 (Fla. 1994).9 In this case the Special
Magistrate finds that the City's interpretation of the Section 118-562(b)(9) of
9 In 2018 the Florida Constitution amended Article V creating Section 21
limiting State agency deference when interpreting state laws and rules. This
limitation does not apply to local agencies interpreting municipal enactments.
24
the City Code should be given deference as the interpretation is not clearly
erroneous or contrary to law. Indeed, Appellants' interpretation would require
that any historic renovation project where there is no intensification or increase
in occupancy would require a traffic study merely due to the size of the
renovation, which is an absurd result. See In re Estate of Snyder, 333 So. 2d
519, 520-521(Fla. 4th DCA 1976)("1fthe language of a statute employed admits
of two constructions, one of which makes the enactment mischievous if not
absurd, and the other renders it reasonable and wholesome, the construction
leading to an absurd result should be avoided. [Citation omitted]")
No Setback Violations or Other Variances Permitted
The Appellants argue that the plans demonstrate setback violations or
that the site plan permits other variances such as a variance to the Dune
Overlay Protection Area. The order provides, however, "No variances have
been applied for as part of this application." Board's order Section 11.
Additionally, Section Ill. K. of the Board's order provides "Nothing in this order
authorizes a violation of the City Code or other applicable law nor allows a
relaxation of any requirement or standard set forth in the City Code." 10 Indeed,
10 The City points out that the Board's order provides in Section I. B. 1 that the
plan "Is not consistent with Certificate of Appropriateness Criteria 'bin Section
118-564(a)(3) of the Miami Beach Code," and for this reason subsequent
conditions of the order requires correction.
25
where Staff found that the Applicant had certain encroachments in the Dune
Preservation Overlay District, as a condition of approval, the Applicant was
required to make corrections. Board's order Section I C.1.g. Also, because
Staff was concerned with the cabanas and setbacks, the Board's order requires
that "Cabanas and associated paving shall comply with the minimum required
setbacks." Board's order Section I.C. h.
Staff did note that there were valid permits from the 90's for work that
today would not be permitted in the oceanfront overlay. As such, previously
permitted work could remain, but Staff noted that the Applicant had agreed to
comply with one hundred percent of the current requirements for the Dune
Preservation Overlay District. Transcript at p. 45.
Appellants assert that their evaluation of the site plan demonstrates that
the ADA walkways are within the setback, which would require variances. Staff
and ultimately the Board's order apparently disagree with Appellants'
assessment, and in any event, the Board's order permits no deviation from the
City Code. This really ends the inquiry for the Special Magistrate as the Special
Magistrate only looks to see if the record contains substantial competent
evidence to support the Board's decision, which it does.
26
Moreover, as the City points out, Section 142-1132( o )( 11) provides:
"Walkways in required yards may exceed these restrictions when approved
through the design review or certificate of appropriateness procedures, as
applicable, and pursuant to chapter 118 article VI, of the city Code."
Accordingly, even if the Appellants were right about the setback
encroachments, which they are not based on substantial competent evidence,
encroachments are permitted through this process.
Hash Marks on the Site Plan do not Make it Incomplete
The site plan contains hash marks to designate areas where work was
not proposed to be done on the Project. The Appellants complain that this
somehow violates procedural due process, which it does not as fully explained
in this order. See Due Process section of this Order supra.
Appellants also argue that the existence of the hash marks on the site
plan somehow violates a requirement that an applicant shall include a
"complete site plan." Appellants' Initial Brief at p.17. Appellants further argue
that existence of the hash marks somehow removes those portions from the
site plan. But, as the Applicant correctly points out, "The hash marks showing
the portion of the rear yard work that is not within the scope of the Application
27
are fully transparent-they do not obscure the information of the reference plan
sheets." Applicant's Answer Brief p.20.
The Applicant at this page of its answer brief provides a part of the site
plan that includes the hash marks and states, "Setbacks, structures, and other
required details are clearly visible through the shaded area of the drawing.
There is no legitimate argument that the HPB [Board] was precluded from
reviewing and considering the complete site plan as Appellants argue." Id. 11
The Special Magistrate agrees with the Applicant's assessment of the hash
marks.
The City points out in its Answer Brief that in accordance with the
provisions of Section 118-562(b) that the decision of whether an application is
complete for purposes of scheduling a matter is a discretionary determination .
That section in pertinent part provides that an application "[s]hall include such
11 This issue could have been fully vetted at the hearing and Staff and the
Appellees could have responded, as well as the Board having the opportunity
to evaluate. This is the real problem of Appellants not specifically presenting
this objection and numerous others before the Board. This is why the courts
require objections be specifically presented to the administrative body or they
are waived. At oral argument Appellants' counsel argued that he merely
referenced his late filed objections rather specifically presented to the Board
because he was only given three minutes. There is nothing in the record to
support that limitation. To the contrary, when asked how much more time he
needed, counsel responded by saying "only one more minute." Transcript at
p .23.
28
information and attached exhibits as the board and the planning department
determine are needed to allow for complete evaluation ... " Clearly Staff had
adequate information from the site plan to make a complete evaluation for the
purpose of making a recommendation, and the Board had adequate
information from the site plan to make a decision on the Certificate of
Appropriateness. The narrow scope of review in this case does not permit the
Special Magistrate to substitute the Special Magistrate's judgement on this
matter. Fla. Power & Light Co. v. City of Dania.
Conclusion 12
The Special Magistrate finds that in this case the Appellants were
afforded due process, that there was substantial competent evidence to
support the decision of the Board, and the essential requirements of law were
observed. Those objections that the Appellants specifically brought to the
attention of the Board were without merit. Those objections not specifically
12 The Appellants, a week prior to oral argument, filed a motion to strike an
email located at page S. 00034-35 of the Appellee, Beach Hotel Associates
LLC's Supplemental Appendix and Index on the basis that this was not part of
the record. The Special Magistrate ordered that the matter be taken up at oral
argument. On oral argument, the Appellee did represent that this was not
admitted into evidence as part of the record before the Board. The Special
Magistrate, however, has not relied on this evidence in rendering a decision
this case and accordingly dismisses this motion on the basis of mootness. It
should be noted that the proper way to seek to supplement the record is by
way of a separate motion served on all parties.
29
presented to the Board, but merely referenced to the Board by Appellants
referring to a memorandum filed on Sunday prior to the Monday hearing were
waived. Notwithstanding that waiver, the Special Magistrate has reviewed
those waived objections and have found them to be without merit.
Accordingly, the Historic Preservation Board's decision is AFFIRMED.
Dated: June 25, 2022
~~ Craig.C~
Special Magistrate
Copies to: Cynthia L. Neves, Clerk of the Special Magistrate
All counsel of record
30