Welcome to our regular North Miami city council meeting um Madame clerk roll call thank you mayor 7:04 p.m mayor desme here vice mayor EST Irvin present councilman Galvin here councilwoman Timothy here councilman Charles present mayor you have a Corum to proceed thank you so much um we're going to have Pledge of Allegiance by Major Angelo Brenson from the North Mi Police Department followed by invocation by Pastor Mike Davis of the Prince of Peace Missionary Baptist Church and then we'll take it from that good evening please stand place a hand over your heart I pledge allegiance to the flag of the United States of America and to the Republic for which it stands one nation under God indivisible with liberty and justice for all thank you good evening let us bow our heads and pray I pray for this council meeting tonight give the council members wisdom and guidance as they deliberate on these items before them may every decision be righteous in your sight for our benefit and For Your Glory in the name of the father Son and the Holy Ghost we do pray and All God's Children will say amen amen thank you so much Pastor Davis thank you sir okay Madame manager any addition deletion Amendment to the agenda no sir thank you you yeah I I'd like to co-sponsor um tab D okay and David got you yes ma'am Madam cler you got that yes mayor thank you so much thank you Mr attorney is the agenda set yes may the agenda is set you may proceed thank you sir um we'll have special presentation by Jeff gimr on capital projects followed by City announcements and event by Savannah Smith is year okay she's here all right and then appointments by Madame clerk yes sir good evening mayor coun nice Tie by the way thank you sir um my name is Jeff gimr assistant Public Works director just here to provide a brief update on some of the capital projects that are happening in the city the first one I want to update you on was is Kagney Park north um we're still going through the permitting process with Miami day County but concurrently um the invitation um for bids has been released and um we're currently under the Kos silence the bidding is scheduled to close on April the 8th anticipate coming to council for award at the end of May and uh looking at a construction start date right now of uh July and the project will take 12 months on Breeze swept Park the city selected a vendor for the playground servicing and shelter uh there materials have been ordered and uh should arrive in June staff is um also coming to you this evening uh item f for the vendor for the spray ground and then that'll get that process rolling with with a ward tonight we should we anticipate that equipment starting to arrive in June so the end of June early July we look anticipate the beginning of construction there's also a third item associated with that project for the remaining improvements which is currently on the street and under the Kona silence and that that bid closes March 18th and we anticipate coming to Council in early May uh for award and we anticipate everything being done on that project by September of 2024 uh the north Miami Tot Lot the city's selected a vendor for the playground and surfacing um work is scheduled to begin in April and then the other amenities we're going to be doing um subcontracting for fencing and uh other materials and we anticipate everything being done there by May of 2024 the north Miami athletic Stadium bleacher project um we're still going through some permitting issues um we're doing some additional soil borings uh just to make sure that this um everything underneath the slab is good those soil borings are hopefully take place by the end of this week and then we'll get the test results and then move forward from there uh just verifying that everything that's underneath the slab that was poured is the way it should be um we do anticipate going to uh to construction for that in April we're still on schedule for that um you've noticed some sidewalk repairs have started um in districts um two and three we are um 50% complete or dist I'm sorry districts two and four were 50% complete with the sidewalk repairs uh District three were 75% and work in district one is scheduled to start in the next two weeks and um we anticipate all of the work being done in all the districts $400,000 worth by May of 2024 um the big one that's right next door to us that you may have noticed over the last few days is mocha Plaza uh just to give you a brief update on that one of the trees um in the plaza was struck by lightning in June of 2023 um the lightning has also had an impact on some of the other trees in in that in the plaza um so it's the large palm trees unfortun fortunately um we've watched them continue to deteriorate over the last eight months and um we've brought in some industry professionals to come in do evaluations and tests on the trees um there's been no disease found in the trees or fungus or anything and it's been tied to we're looking at lightning that's caused the deterioration of the other trees well on February 18th uh Sunday when we had the big storm one of the trees snapped in half and fell um with consultation from are the professionals we've been working with it was determined the health of the trees is not going to improve and we have started the process of removing all of the impacted trees um if you look out there now um six of the trees have been brought down in the last two days and the other two will be brought down tomorrow we still need to come up with a plan for the plaza and that's something that staff will be working on over the next month or two just to develop um what direction we're going to go with that with the plaza and the last last project I wanted to give you a brief update on is the Northeast uh third core drainage Improvement project from 131st Street to 135th conceptual uh drainage study has been completed um 90% engineering drawings are due at the end of this week and uh construction on that project is scheduled for November and that'll take about six months to complete okay um just with that Jeff I did ask my office to schedule a meeting I think with Whistler and some residents so you probably would would Jeff would need to be included in that meeting or would would that be would you be need to be included in that meeting as well whistler's well versed also in the project wh can attend the meeting okay thank you thank you so much okay thank you so much next time just if we could have a a graphic or a visual at least for the people at home to kind of see but great job thank you so much Jeff I'm not done well I I have some questions on his report oh okay he he was sitting down but go ahead okay thank you thank you so much for your report I really appreciate Madame manager that we get these reports this is really good for the so the public can see you know all of the efforts that are being made but I have a question Bri swept so you're saying that construction is going to start in July well there's it's a it's a three-phase project so we the materials uh for the playground there's when we ordered the materials after it was approved by Council there's a six-month lead time for materials so that's why we're not going to start receiving the materials until June um the the lead time on the spray ground which is on the agenda tonight is much shorter so we'll get those materials in June as well and then the third phase is out to bid which is uh the other improvements improving improvements of the basketball court landscaping irrigation sod and fencing and all of that is um out forbid right now and we anticipate bringing that to you in May and then we have to execute the contract and by the time the contract is executed here's my question will the kids have a playground for the summer well if we start construction in July um it's probably not how long is how how long is construction 90 days is this final this is final right construction will start in July that's it right well at this point there's nothing we can do to expedite that because we're we're dealing with material delays and there's absolutely nothing that we can do to ex for like that no what's the delay um the playground materials being manufactured and shipped when was the last time that you inquired about it um the last time I spoke to the vendor was two weeks ago and you've asked if you can expedite it and there's nothing that can be done to expedite it I just asked what the timeline was on can we find out if it could be expedited sure appreciate it thank you that's it are you done you done ma'am I am awesome thank you so much um we'll have City announcement followed by appointments by Madam CL good evening mayor council staff North Miami neighbors and guests my name is Savannah Smith and I'm presenting the following announcements on behalf of the city of North Miami are you concerned about speeding and cut through traffic in your neighborhood do you want to make your street safer for for pedestrians cyclists and children the city of North Miami is conducting a comprehensive study to identify and address operational issues related to cut through and speeding traffic in our city please take a few minutes to share your comments and suggestions by scanning the QR code or visiting our website the city of North Miami Police Department in partnership with with dedication to community would like to invite the community to come together and listen learn and understand ongoing issues and to identify the actions needed to build a stronger and more unified North Miami there are three sessions to choose from February 28th from 9:00 a.m. to 1 p.m. February 28th again from 2:00 p.m. to 6: p.m. and or February 29th from 10:00 a.m. to 2: p.m. great news councilwoman Cassandra Timothy's random acts of kindness initiative has been extended more than 600 seniors in North Miami need your kindness donations are accepted through Friday March 15th 2024 at three locations North Miami city hall North Miami Police Department and the north Miami Public Library every Wednesday from 11:00 a.m. to 2: p.m. until April 10th AARP will have Representatives at the North Miami Public Library offering free tax preparation for low and moderate income taxpayers to schedule an appointment call the north Miami Public Library at 305 891-5535 join us as we honor Black History Month with an electrifying block party and talent show at the North Miami public library on Thursday February 29th 2020 for for 230 p.m. to 4:30 p.m. celebrate the richness of Black Culture through music dance poetry and more sign up to be a part of the talent show in person at the North Miami public library or register online by scanning the QR code the office of the city clerk is excited to introduce this online tool ensuring transparency and efficiency this election season join Madame Clerk and her office on Thursday February 29th 2024 from 6:00 to 7:00 p.m. at the North Miami public library for a training on North Miami's new campaign finance software provided by easy vote Solutions this training will provide a user-friendly step-by-step walkthrough on how to upload all required campaign documents and reports the north Miami Public Library presents a monthly gardening Workshop led by Jerry an baros University of Florida Master Gardener these workshops are free and open to the public and take place every Saturday of the month join us for a special edition of mocha mini makers on Saturday March 2nd from 2: to 4:00 p.m. featuring the north Miami artist and educator Linda tord this Workshop will combine textiles storytelling and self-discovery RSVP online at mocha .org to stay up to date with Nomi news and events log on to the north Miami's website at www.north miami.gov click on connect with Nomi on the homepage to sign up for the city's newsletters also follow us on Facebook and Instagram at North Miami LL and on Twitter at noomi news this concludes the city announcements thank you so very much and Madam clerk a resolution of the mayor and City Council of the city of North Miami Florida appoints in Mark W Bob to the Charter board term ending November 3rd 2026 in accordance with chapter 2 article 3 division 3 section 2- 82 of the city of North Miami code of ordinances providing for an effective date and all other purposes so this is an appointment to the board of adjustment made by coun I'm so sorry Charter review board uh made by councilwoman Timothy so move a second I have a motion made by councilman Charles to approve the board appointment the motion was seconded by councilwoman Timothy all in favor any opposed motion carries with a 5- Zer vote Mr Mayor yes sir I just want to make sure we also get on the record that uh my appointee to the Parks Commission that I just appointed last meeting Armando sto has resigned I sent an email to the clerk's office but didn't get any response so just making sure it's reflected that I again have an opening on the parks Comm okay is Claudia pasino here tonight yes I saw her I would like to nominate with her with her agreement Claudia pasino to the parks department and Parks Commission and uh since we need a resolution prepared to do that officially at the next meeting Claudia if you don't want to serve let me know but otherwise I'm excited to give you a chance to serve on a city commission and I'll I'll second that yay but I guess we have to have a resolution we can't right now she has to apply yeah do the resolution consent agenda unless a member of the city council wishes to remove a specific item from this portion of the agenda tabs a through e constitute the consent agenda these resolutions and items are self-explanatory and are not expected to require additional review or discussion these items will be recorded as individually numbered resolutions adopted unanimously by the following motion that the consent agenda comprise of tabs a through e be adopted all right move move approval second Madam clerk I have a motion made by councilman Galvin to approve the consent agenda the motion was seconded by vice mayor estimate Irvin all in favor I any opposed the motion carries with a 5- z vote um item hold on this is not yeah item F tab F tab f a proposed resolution of the mayor and City Council of the city of North Miami Florida authorizing the city manager to issue purchase orders to V Tex aquatic structures International in an amount not to exceed [Music] $175,500 providing for an effective dat and all other purposes Ty F Mr Str do you have a presentation uh yes um good evening honorable mayor council members Alberto Estrada purchasing director as was uh mentioned a little while ago a little earlier by Mr Jeff gamer uh this item is seeking your request to issue purchase orders uh to a vendor by the name of Vortex aquatic structures inter National and it's for the purchase and installation of an interactive water feature basically a splash pad equipment for the Bree s Park and T laap project um this is for a not to exceed amount of $175,500 cooperative and again as uh Mr Mr G mentioned this is one of the phases of the Bree swept project okay um thank you so much Mr gimer you don't have anything additional okay public hearing is open on Tab F public he is open for approval second well I didn't even we got expedite we got to expedite that one yes okay um can you have it done tonight exactly I'm sorry yesterday I have a motion made by councilman Charles to approve the item at tab F the motion was seconded by vice mayor estimate Irvin all in favor any opposed motion carries with a 5- z vote thank you thank you um tab tab g a proposed resolution of the mayor and City Council of the city of North Miami Florida authorizing the city manager to issue purchase orders to computers at work Inc doing business as V Teo in an amount not to exceed $84,500 subscription utilizing the Cooperative purchasing provision pursuant to section 7169 of the city code on a contract awarded through Omnia Partners purchasing Cooperative contract number R22 0802 providing for an effective date and all other purposes tabg thank you Mr estada again uh once again for the record Alberto EST purchasing director uh so the purpose of this item is to request your authority to issue a purchase orders uh to a vendor by the name of computers at work Inc they're doing business as B Teo and it's for the purchase of Microsoft 365 licenses and subscriptions uh which are needed for the upgrade and licenses for the city service and in addition this will also serve to further enhance the city's data security the request is for not to exceed amount of $84,950 and the purchase is being accomplished through the use of a national Cooperative purchasing contract issued by Omnia part ERS uh as reflected in the report um the proposed purchase is needed to ensure the safe and uninterrupted operation of the city's Administration and the services to our community and if you have any questions I'll be glad to take them okay you oh I thought Jeff was here let's open the item up for public hearing public hearing is closed members the council move for approval second I have a motion made by vice mayor estimate Irvin to approve the item at tab G the motion was seconded by councilman galin all in favor I any opposed item passes with a 5-0 vote thank you Mr Mayor yes mayor um i' I'd like to motion that we table tab hni please until is there specific um right so I didn't have an opportunity to um um brief with the manager and um and the director such just what is um that's ordinance um okay so is everybody okay or are we you just want to continue at one meeting or to the next meeting till the next meeting you the 12 well let's get a motion and let's get the date specific okay so I'll I I'd like to motion to table this until actually um March 26 oh yeah that's much that's a little bit too long right let's see definition okay this is which typ the hn h i n i okay I'm okay with both um can I get a motion I made a motion I'll second you're second it okay are those two companions those are two they not okay so this this the other one too um I have a motion made by vice mayor estimate Irvin to table the item at tab AG the motion was second until the March 26th meeting the motion was seconded by councilwoman Timothy all in favor I any opposed motion carries with a 5- z vote the and then tap yes I'm so go ahead Madam clerk I was I was asking um councilwoman Timothy if she had a question about are you good okay go ahead Madam CL tap I I have a motion made by Vice mayor estimate Irvin to uh table the item at tab I to until the March 26th meeting the motion was seconded by councilwoman Timothy all in favor I any opposed motion carries with a 5- z vote okay thank you so much well you know what that actually cut cut down a little bit so we are in CI traditional and Madame clerk toab J tab J it's not bad please be advised that the following item on the agenda is a quasi is quasi judicial in nature and if you wish to speak in favor of actually no there won't be any public comment on this one okay I proposed quasi judicial resolution of the mayor and City Council of the city of North Miami Florida acting as the zoning appeals board pursuant to Article 2 Vision 5 section 2-51 of the Land Development regulations ldr is considering an appeal of an approved application for a variance pursuant to Article 4 division 2 section 4-23 of chapter 29 of the city of North Miami code of ordinances ldrs to allow a height variance to exceed the bz District maximum permitted permitted height of 115 ft to 203 ft and 10 in at the real property located at 11950 North Bayshore Drive and said variance to be reviewed under the criteria set forth in article 3 division 6 section 3- 606 of the ldrs providing for an effective date and all other purposes and the decision for public comment is not on me mayor yes go ahead uh so before we start I I I wanted to we've never done one of these before so I just wanted to let everyone know how this uh how this proced proceedings will go um so this is a quasi judicial process but it's also an appeal as you sitting as the zoning appeals board so um the order presentation will be they'll will disclose uh expart Communications as always there'll be a presentation by the appellant which is uh the city staff and I believe there's one other appellant um there'll be present there will be a um cross-examination by City staff cross-examination by the applicant uh cross- examination by the decision making body and in btle body uh yeah I'm using this this is I'm trying to modify this this is applicant but it's appellant um and then the discussion among the members of the decision body and then motion um by the decision body with an explanation of position so basically you'll have the U uh appellants first um and then the app appelles will respond um the other thing is the the in order to uh so there's a couple things you all can do uh at the end of all of this right so you can either reverse the order that that was given by the uh Board of adjustment you can amend the order that was given by the board of adjustment you can modify the uh the order or you can remand it meaning send it back to board of adjustment and have them uh make a read decision um see um you can also well you can also affirm what the what the what they've uh what they've done um so the the other the standards that you're looking at are um in order to do to do anything to modify the order or to reverse the order you'd have to make a finding that either one um procedural due process was not followed by the board of adjustment meaning um the uh the applicant didn't get their notice or um hearing rights um or the board of adjustment number two uh did not observe the essential requirements of the law and then number three uh the board of adjustment did not base its decision upon substantial competent evidence so if you find any do you have a copy of that can we have a copy of that uh yeah I'll I'll get that okay before this is done yeah okay um but this is section 3- 707 of the uh of the ldr just a copy Chanel you get us a quick okay go ahead go ahead sir I so just for clarification for me are we starting from square one with presentation of what the the project is going to be and its parameters so you may see that um so the other thing I should mention so uh Jennifer um Jennifer is going to be sitting as the she sits as the the attorney for staff during the um Board of adjustment years um so Jennifer Warren sits there she's going to be making the arguments on behalf of City staff the board also has an attorney who's not present tonight I don't think he's here tonight but so he's not here tonight and then um and then the I keep getting the appellees have their own attorney also so that's who who everyone we I'm here solely to represent you all answer your questions I won't be participating I got here's my concern what are we here to do tonight here to so you're not here to rehear this you're not here to rehear the matter basically the and and I'll you'll get this in the arguments if you I'm sure that that's what be that'll be presented but what's happened here is um the appeal is we're basically saying the board of adjustment did not follow the law when they made the decision so that's really what it's limited to however you may hear some you know discussions about the project and what the project is and all that but that's not really the discussion really again to go over what you're looking at is was due process followed by the board of adjustment did the board of adjustment um observe the essential requirements of the law that they follow the law and then three did it did they base their decision upon substantial competent evidence that's that's really it you're not deciding whether it's a nice project with it's too many units or any of that stuff right you good and so it's either we reverse amend modify send back or affirm what the board of addressment did okay not not not not not yet sir not yet no I I just wanted to make sure that I will excuse me sir not yet please thank you he he hasun right um but yeah and then what the the the clerk just did point out that there is no new evidence which is why no new evidence is being considered which is why there is no public comment because public comment would be I mean when we do quasa judicial I know people come up here and they say we don't like the project that's not really supposed to be done in a quasi judicial uh process it's not really substantial competent evidence but here because we're are doing an appeal there is no new evidence allowed and so we we there is no public comment so we're speaking strictly to whether or not the board of adjustment acted within their duties or their exactly power to have approved this project we're not going to go back and say hey there should be three swimming pools instead ofone it should have 15 floors instead of 20 we're not doing any of that if depending on what we do tonight there might be a future discussion on that but it's not happen exactly okay good I think councilman KT you understand Charles vice mayor you good you have any questions before we begin go Ahad I I have a concern the the attorney for the board of adjustment is not here right he wouldn't be speaking anyway yeah isn't she she repres it's the staff it's it's staff that's appealing so the board of adjustment isn't appealing yeah got it thank you um we good go ahead good evening honorable mayor and City Council genifer Warren on behalf of City staff at the development services department we are here tonight asking the mayor and city council to reverse the January 31 2024 order granting a variance documenting the decision made by the board of adjustment on October 18 2023 to increase the height for the property located at 11 1950 North Bay Shore Drive from 115 ft to a height of 203 ft 10 Ines in effect almost doubling the maximum height in the Bay Shore Zone tonight City staff appeals to this Council to reverse that decision to revoke the variance that was granted and to direct the the applicant or appelle to seek a height increase utilizing the appropriate land use mechanism the board of adjustment did not follow the essential requirements of the law and granting of this variance and the decision was not based upon competent substantial evidence I want to make it clear that unlike what you will hear from our co- appellant for the city it's not about the project it's about the process for the city what it really comes down to is who should be making policy decisions about the height in the Bay Shore Zone specifically when I I'm asking the city council tonight is this is a city okay with unelected Advisory board members making decisions about the height of large-scale developments and weighing in on the Associated Community benefits packages and plans on behalf of the residents with zero input by the mayor and city council City staff says no and City staff says no for the following reasons the first is the Precedence allowing the variance to stand will set precedence and pave the way for future developers to evade the mayor and city council when it comes to the height of their projects this was the first time in the history of the board of adjustment that they ever granted a variance like this and make no mistake the word is out on the street just last week an identical application for height variance was granted by the board of adjustment for an other development Pro project right next door the variance process is being abused to increase height but what comes next it was uncon it was inconceivable that less than a year after the White House in controversy that the board of adjustment would Grant a variance doubling the height in the bayor zone if they go around the council for height what's the next thing that gets decided with zero input from the mayor and city council before you know it the mayor and city council will be completely left out of these conversations the flood gates are open and City staff is now asking the city council to close the gates by granting this appeal why because the appropriate process was not used because this variant application meant none of the criteria for a variance the appropriate mechanism to increase height would have been through a text Amendment to the Land Development regulations and it's important for you to know that City staff did not hide the ball on this from the beginning staff advised the applicant that they did not meet the variance criteria and they were advised to seek a text Amendment to the Bay Shore Zone this would have gone through the Planning Commission as an Advisory board but ultimately that decision would have rested with this mayor and city council as the as to what the appropriate height is in the Bay Shore Zone District staff's advice was correct under the prevailing case law and Metro nitan Dade County versus Bon Court the court stated if the hardship is one that is common to the area the remedy is to seek a change of Zoning for the neighborhood rather than to seek a change through a variance for an individual owner the applicant's hardship is obviously common to the area because just last week the board of adjustment heard the identical application for height variance for the adjacent property since Building height has obviously become an issue in the Bay Shore Zone the case law clearly states the correct way to do this is to change the zoning not to Grant individual variances even though staff advised the applicant of the right way to gain height the applicant insisted on going to the board of adjustment with the negative recommendation from staff so why didn't staff do something to prevent this from happening I've heard that question and that's because the Land Development regulations are clear the staff is charged with reviewing the application and making a recommendation their Authority ends there it is the board of adjustment who has that power to make that final decision City staff has no ability to take away the board of adjustments decision- making Authority Under the code likewise it's imperative that the board of adjustment rely on staff's recommendation and making their decisions the development services staff are technical experts in the field and their staff analysis and testimony are the substantial competent evidence that the board of adjustments should be basing their decisions on instead they chose to rely on the opinion testimony given by Council for the developer and granted the variance and because of this the public and the city council has been circumvented by the board of adjustment granting this variance in effect the Planning Commission and the city council were circumvented and the public was shut out of this process had the board of adjustment denied this variance in accordance with staff recommendation the applicant would have been required to file a text Amendment and go through the Planning Commission with the city council making the final decision on that height increase this is the Forum that the city's elected officials and its residents are familiar with when looking to see if large scale developments are coming into their area residents are looking on the city council agenda for controversial topics and big developments coming into their neighborhood and since the board of adjustment isn't the mechanism for approving these types of developments most residents weren't even aware of the project likewise many of you on the city council weren't aware of the height doubling in the Bayshore zone until after the city filed its appeal the board of adjustment is accustomed to reviewing variances related to set bikes height adjustments for Home Improvement projects like pools fences and boat docks to say it is unprecedented for for this board to be making decisions on the height for large scale development projects is an understatement and for this reason it was crucial for the board of adjustment to follow the criteria of the code to a t when reviewing this application it is the position of City staff that the code requirements for the granting of a variant as well as the prevailing case law were ignored by the board section 3- 606 of the Land Development regulations requires that the applicant satisfy four out of six criteria to gain variance approval by the board of adjustment City staff and I won't go through the variant standards because that was already done to the at the lower level but suffice it to say City's staff opined that this application meant Zero out of the six criteria for the granting of a variance and it was clear in listening to the deliberation comments for this item that the four out of six standard was not followed in the granting of this by the board of adjustment so what did they base their decision on financial and economic factors the majority of the board's deliberation discussion and the information proferred by the applicant was about the financial feasibility of the project and the community benefits plan that they were going to provide specifically that the developer would be unable to build the project at a height any less than the variants that they were seeking because it wouldn't be economically viable the problem with that is the case law is clear Financial hardships are not a basis for the granting of a variance this approach was so inap appropriate that the board attorney attempted to correct the board on this point and as um City attorney Jeff Kazo clarified there are two attorneys I am not a neutral I am the staff attorney I am the advocate for staff but the board attorney serves as the neutral he is the neutral whose position and sole purpose there is to give the board guidance and give them legal advice to make sure that they make the right decision so as I stated not me the board attorney interjected and reminded them that on the issue of an economic return the case law in Florida is clear that economic hardship is not sufficient criteria for the granting of a variance he even quoted case law to back up this point stating that reasonable return as used in the consideration of an application for a variant from a zoning regulation does not mean in the context of a residential area that an economic return must be produced instead the inquiry is whether there are uses that are beneficial to the owner and consistent with the residential zoning unfortunately the board attorney and the case law he provided was ignored by the board what else did they base their decision on irregular lot shapes the board was told by the applicant that a case giri versus the City of Coral Gables Justified the granting of the variance because the subject property was in irregular lot shape the problem with this is twofold number one the lot in the giri case was a triangle while the applicant's property is clearly a rectangle and there's a stark difference between a triangle and a rectangle when you're talking about development capability of a project the applicant also somehow sold the board of adjustment on the idea that the fact that this is a waterfront property creates a hardship for the owner I don't think anyone living in the south Florida area would consider Waterfront proper to be uncommon or peculiar or anything um related to a hardship the second issue with this case is that it's stale there is a newer case that distinguishes the Gary ruling and that is Maturo versus City of Coral Gables it first states that in Florida courts have held that legal hardships will be found to exist only in those cases where the property is virtually unusable or incapable of yielding a reasonable return when used pursuant to the appical zoning regulations on the giri decision the Maturo Court stated we've explained and Gary that the hardship must arise from circumstances peculiar to the realy alone unrelated to the conduct or to the self- originated expectations of any of its owners or buyers applying these principles to the material case it is obvious here that unlike the giri case the shape of the property in no way con constitutes a legal hardship the subject property consists of seven regularly shaped ordinary Lots which are not rendered unusable by the existing regulations the facts in the giri case simply didn't apply here it is the ruling in the matural case that controls because we're talking about a regular shaped parcel that is entirely usable at the end of the day the developer comparing a triangle to a rectangle is no different than saying that an apple is the same as an orange what else did they base their decision on progress in North Miami the board was clear they like this project and they want to see development in the north Miami area mirror those projects that they've seen in Aventura North Miami Beach and or in the city of Miami the city's development services team has always been supportive of development in the north Miami era and we Echo those sentiments but that simply not a basis for the granting of a variance the these are policy discussions and policy decisions that are to be had among the city council and so City staff ask the city council tonight to revoke this variance so that the proper policy discussions about height and the bay short Zone can happen among the city council and not the board of adjustment thank Youk um um no wait wait wait no clapping no clapping no clapping that's my my classmate go on Jennifer okay thank you so much um Mr attorney what is next would the applic U we have one more appellant will be making his presentation okay can somebody help him with that will can you help him out at no no that's that's him that's not mine that one good evening uh mayor uh council members um thank you for um be here um I am ernando Barto and I am just a citizen that also is speaking on behalf of a lot of citizens here that support you can stand up that support this he um then um I'm going to explain uh from the community what is this the situation and why we appeal this decision um first we also want progress we are all about progress but we believe that there is a right way to do it and in this in this case the board of advis of adjustment uh has oversteep on the authority of the council what we are discussing today is not just about the project it's about democracy because we as the citizens elect you council members to be policy makers to take decisions on things that are the of this magnitude but that process has not been follow has been violated as the first time ever according by the board of of adjustment then if we allow these kind of decisions to be taken by developers with the board of adjuster excuse me Board of adjustments the boa are just going to say um basically we will be uh circumventing the um Land Development regulations the master comp comprehensive development plan this is something that we have been discussing for two years you probably remember me here also arguing this two years ago when the master development plan was issued then we if we allow that b basically we are going circumventing the Democratic process because the community relay on you to make that decision and know in the bo of adjustment just quick summary um of what is the situation this is the district BC just what you what you see here in this graphic that is the district there are only three prop properties originally in the BC is mayorca Tower the property discussion and Mariners Bay last year after a lot of discussion was added White House to that District the the district is allowed to be built 115 ft that is what approximately the White House project was approved the um mayorca yes is higher but there is there is a grandfather situation because the the ldrs were issued in 2009 and the building was issued in 1969 that is very common for example sprinklers are required in all new buildings but are not required in the old buildings just because the law requesting for that provision was issued later then it's just very common that's not basis for um for a varians the what is b requested by the developer and approved wrongly by the board of advisors is to double that high and and it's not used for one property it's used for the entire District then basically the the original bcon is being changed the soning code is being changed um used by F by the developer um and by the way M Mr Pedro um represent all three developers in that um area there there was Community concerns that were that that that were sent in a lot of letters we sent more than a 100 letters signed by the community emails in the past before the project was presented to the board of of adjustment even in the meeting on August 202 three Council woman um that was present explained what is the text um zoning change uh typically process then again the the applicant the board knew this controversy before to hear the applicant the then um there is also as as it was mentioned in all those communication the especially there are a lot of concerns that are just this is just background uh of what happen because um what happened in a a lot of concerns of mayorca owners or mayorca residents because there is a still core dispute um about what happened in Chapan well there there are arguments that that has um included the Constructor the Builder the developer the designers as one of the factors not not all but one of the factors why Chan failed because the the reality is even if the new building is built with all new standard is all new technology there is no way to know how that exactly is going to affect mayorca because it's an old building when it was built the technology that exists today didn't exist that at that time the the taller the building the the deeper the piling that you have to do and that is a big concern that there was also um and and and there are even recent um studies being uh being done how the increase of the sea level and and and how the the the south Florida area could be affected for all this uh environmental change there are also um concerns about flooding the this this triangle in which uh is impacting the the son has two entrances Mr Mayor I'm sorry and I'm sorry to cut off the applicant but we're supposed to be speaking to the the I'm going to give those the actual right the board of adjustments decision and not to the pros and cons of the project because otherwise we're reopening I'm just what are the background you like we open give us the facts like just go ahead and do that and summarize that for us thank you sir then the facts are uh anyway that the developers are parking in a quar of Mile 420 new condos in those three projects the total number of residents that that in this triangle today is only 400 and they are packing that that is that is the fact of what they have requested and they are trying to do in the variance the variance procedure is being misused because as this the the attorney for the staff already explained the variance procedure is not supposed to change the soning code that is what is actually happened here the the variance uh is is only to do considerations the reason or rational behind the LA allowing variance at all is that in some situations the literal application of the zoning code would create such a hardship that it would not allow any use of certain Parcels of property whatsoever Board of adjustment have sometimes been unclear on this distinction granting variance as a convenient expedient to avoiding the zoning and Land Development regulation an applicant variance request must be reviewed on its own medits and there are there is case La Jackson Bill versus tayor about about those those procedures the current uh Land Development regulations by the city indicate that not only 115 feed is the maximum he but maximum 78 units and as we will see um the applicant is also trying to change the density of that area doesn't meet as the second point I presented in my appeal 10 points and I'm going to explain my 10 points in the appeal because that was the appeal that I filed then the applic the the the the applicant app doesn't meet the criteria for granting the variance um as has been already said also the board of adjustment established by ordinance 972 on August 1997 makes recommendation on request for special exceptions and variances as well as administrative appeals although clearly the board of adjustment can deviate from the staff recommendation it is evident that the expertise legal and Technical knowledge of staff is critical for the proper illustration of the board of adjustment members about complex request requests presented in variance procedure it is also important to emphasize that the board of adjustment members are not required to be experts in the subject since the requirement to become a member of the board is to be a CD resident and do not hold any other elected office that's it they are not expert in the matter therefore the expertise of the staff is critical input for the board at the point that the before mentioned ordinance established such important of the staff recommendation and also establish a Review Committee full disre as it happened of the staff recommendations by the board to have a compelling reason an expert opinion from someone else different than the applicant that didn't happen there is also in the thir point is a misrepresentation of the ldr to accommodate VAR the developer is misinterpreting interpreting the landine and development regulations related to harchie for varians and trying to wrongfully apply that they should get maximum ha allow in the city in solia when the applicable criteria and the maximum by right in the city is 115 ft the hardship requirement for variance procedures has been in the florid low even before the act of of that repeal previous regulation the basic Florida La of variance has no change as criteria for variant similar to Florida case L requirements has been incorporated into local codes establishing similar variance criteria to be applied through a slightly different procedures for each country but the ability to review and Grant or deny variance as well as the basic Florida La of variances remains as it was before 1985 the course had been very strict in the review of the hardship required to obtain barans clearly there is no hardship for this land there was a previous development means that the land can be developed there was one before in that lot and the predesigned project of a full building could be built for residential use a a project of 10 floors or 11 floors can be built that is it's a fact then the land is usable there is no reason uh and and that's is what the the are established all right I just want to I want to Lodge one quick objection I want to be respectful of him so I've been allowing this to go on but he made several representations regarding legal cases he's not a lawyer he made case representations regarding parking which is not before you he made representations regarding density so I just wanted to put that on the record I didn't want to interrupt but I just wanted to make sure that I was I would because M Mr Kazo is the gentleman who's presenting tonight a resident or an attorney I guess I'm confused he's a resident he follow his own follow the appeal that we are why he's able to speak first go ahead go ahead sir the misleading Claim by the applicant that the load cannot be developed is wrong in at least two aspect first the developer new soning codes previous to purchase the land second the city master plan review last year in 20 22 um after long discussion about the hate kep the kuring soning and ldr as it is for the BC area the fourth point of my my appeal is that the applican is wrongly forcing concept of reg irregular shape case the shape of the land mentioned in the case of City go City of Coral gay volb J refers that unusual triangular shape I'm not a lawyer but I am an engineer I I know the difference between a triangle and rectangle however as we can see in the city of North Miami we for sun we can see this this is the area in in um is rectangular the the the applicant has a kind of triangular lot in front they owns that property if the Triangular argument will be accepted then not only the property in blue but the property in yellow could be also um receive a variance for uh to exceed the heat the hate that that that is allowed in the city there are case of law citizens of of the US and even um I can as a citizen I can go to a civil coure and represent then I don't need to be a lawyer to read a case then and and my the the app has bullied me on that several times and that's not acceptable and I will not accept anymore a case loud that it is more relevant for this variant is the Metropolitan day County versus Michael banur was also mentioned by the attorney of the staff to The District Court of Appeal of Florida in which the court Grant Cur quashed the circuit C cor order and reinstate the decision of the County Commission they found to be in agreement with the position taken by George Robinson and rate the decision of the cont commission and Deni the variance by banur a varians should not be Grant where they used to be authorized by Will alter the essential character of the locality or interfere with zoning plan for the area and rights of owners of the property and variance which permit a use not authorized by an existing Sonic classification one who purchase property while it is in certain knowing son classification ordinarily will not be heard to claim as a hardship a factor or factor which existed at the time he acquired the property this is the figure that is used in law a self-imposed hardship or self-acquired hardship that is what is happening here such as puring on their existing sonning and then applying for a variance is not the kind of hardship for which variance should be granted it is clear that related to this case Alta application for hate variant do not meet strict requirements to get a variance approval in the point number five there is also um intention to change uh the density of the sonit and the reason why I mention it is because the in the heating of the board of adjustment it was mentioned that the project is for 96 luxury units but the property only allow 78 based on the maximum density of the sunning code that is 100 units units per acur then this is 78 acress then only 78 but it was mentioned during the hearing to the board that the project is for 96 the developer knew what are the the the the the Restriction the six point the the point number six dra justification claiming of financial hardship during the hearing the developer representative was advised and this also was mentioned by the attorney of the staff that Financial heart ship does not confer any basis to a request for variance still the representative of the developer extended his presentation arguing that current market conditions in South Florida uh include Rising construction Cod higher material prices higher interest rate and higher Insurance all that is in the recording of the heing of the board then all those points that the that the applicant was making to the board are Irrelevant for the subject or requesting a variance and he was advised by the attorney of the board and he ignored that and continue but not only the African ignor it the board members ignor that uh mention that those points economical and financial points are not basis for a grant and there is another case not going to read it but there is plenty of cases because that case also was mentioned during the hearing and it was ignored no heart it at all was demonstrated by the Africa there is no financial hardship as developer because in addition to there is the that there is no hardship even if there is a a a financial issue uh that will not give them the the the profit or the return that they want in the project um they mention some numbers I we are not going here to discuss the the vality of those numbers but but the point is they were making point that they are that that they are spending uh this much this amount of money 92 uh million doll in this project it's a lot of good money and they are going to sell this in 256 that that is their their point not ours we we we don't know the numbers but the point is again the rules law and case law has actually established that the applicant must demonstrate her Chief to request a variance and the burden to prove the existence of the required hardship and unique condition is always on the applicant Gomez versus City of St Petersburg and the that that burden of proof was on them and they didn't demonstrate is still the board approv the the the variance again even in the case of that there is a financial situation or or or as they are now trying to present that is a practical difficulty to develop the land um there is no basis to on those practical reasons economical reasons to Grant a variance the using the wrong variance using the variance process wrongly will end the master plan and ldr that's what we um are worry as a citizen this is not this situation is not affecting only s corner but could affect the entire city because the entire city could be subject to new ideas of bian bian and and as as for the case in in in discussion here last week one of the arguments of the applicant on the board to say we want this to be granted is because there was another already granted then they contradict themselves because they say this is not going to affect any other property but they are using that as the argument as the president to request again a variance that has no merit to the board then the 10 point is that there is a strong opposition from the community to exceed the the the the ldrs not to be not not to construct a building we want nice buildings in the but to um using shortcuts or using the wrong procedure that the procedure are established and we have read the procedures we understand the procedure but the board didn't respect those procedures and the applicant use um went around those procedures but but but they they said in the hearing also that they sit down with the community to try to find because it was the the the chairwoman uh of the war ask have to try to reach an agreement with the community and they say yes reality is not then in the meeting in the bed temple in August 2023 that was Council woman um um was present for district number two the entire Community except one person was against this project he said that the the applican said that he will sit down with the community and try to find common grounds and that hasn't that didn't happen and all us is documented that meeting was recorded and I have submitt it to you if you want to see it later on then those are my Arguments for that reason I um respectfully request to this Council to uh reverse the decision of the board of adjustment thank you thank you so much sir um guys please please keep it um keep it down and now we're going to have the attorney for the applicant to respond mayor I'm going to give it a several minutes I see that there are two members of the council missing so I'm going to respectfully wait please start if yeah cuz I don't know where they went but can you please start sir yeah mayor yes patri Gant of holling the night with offices at 701 Brio Avenue I'm joined this evening by my colleague Alexandria San Romain and by my additional colleague mishel cut we're also joined by representatives of the property owner ala bore the president ignasio Montes and by our consultant Andre Pierre this evening I want to take some time to really take a step back and provide some context there are two appellants in this matter and I think several of these items that have been raised this evening one are not properly before you and two were never raised below so I'm going to take a step and I'm going to explain why everything that you just heard both from City staff and from the resident were inappropriately brought before you now I'm going to go to the next slide I'm going to give you some background with respect to this and this was specifically brought up by City staff so I'm going to address this issue we submitted this application for the boa back in March of 2023 as part of that process we had to go through a pre-application meeting City staff states on the record here for the first time not at the bo below that they always told us that the proper process was a text amendment that is wrong that is incorrect it is a misstatement of fact at the pre-application meeting we specifically asked the staff we are planning to submit a variance for height we want to know with respect to this variance for height should we come before the council first for the site plan and the cup that we're going to be bringing before you or should we come with the height City staff at that point never told us no we don't think that any height variances would be appropriate we don't think that any height variances would be properly adjudicated by the boa they simply said it would be appropriate for you to bring the boa variants before the boa that hey variance that they knew as early as April of 2023 we went through a process whereby between April of 2023 and August of 2023 when the first hearing for the boa was actually set staff never told us during that entire process hey you need a a text amendment that did not occur when the August hearing came it never actually occurred because there was a lack of Quorum so it was moved to September it was in the September recommendation for that hearing that staff first brought up the idea that the variance would not be appropriate not because it's a policy decision but because staff believed that it didn't meet the variance criteria it wasn't until we had been in the process for nearly 6 months that St that staff brought up this idea that we were inappropriately coming before the boa okay in October of 2023 we go before the board we demonstrate that we meet all of the criteria regarding the code we show four out of six we show all six out of six and we demonstrate that for the board and you'll see when I go through the rest of my presentation why that matters because the moment it is adjudicated below it constrains what this Council can do as the zoning appeals board now if staff wanted to ensure that variances or height variances would not be permitted there was a simple resolution of that they could have brought an ordinance before this council at any time in April in May in June in July in August in September in October they never did any of that until this day as far as I know there still is an in ordinance before this coun that would prohibit height variances so technically speaking even after this Council were to adjudicate this an applicant can still come before you and say we want a variance of the height this hearing would do nothing to that because the code currently permits hype variances but in addition to that after we were adjudicated in October of 2023 what ended up happening was there was an appeal filed by Mr baretto and staff City staff joined in on that Appeal on November 14th 2023 your code and as as I will detail later I'm just giving you a general context here your code provides that within 45 days of that appeal it must be heard we were told that that appeal was going to be heard by January 26 2024 yet somehow here we are a month after not having heard the appeal by then and we've been in this process to date for 341 days the city essentially to allow this appeal to come before you today created a new order a new boa order at the end of January to address the arguments that we raised in January demonstrating to them that it was inappropriate for them to even hear this appeal we documented that we identified it and what the staff do they said oh no big deal we're just going to change the order and because we changed the order the council will be able to hear it today that is totally inappropriate because your code does not permit it so here we are today dealing with two applications for an appeal that you should not be hearing that are not appropriately before you and that we have demonstrated on the record based off based off of our challenges are not correct and in my cross-examination I will ask the city staff did you have an order that was recorded by the bo the board of adjustments that you subsequently revise just to be able to have this hearing the answer will be yes did you have an order that was not heard by the 45 working days of your code the answer would be yes they were supposed to have this hearing in January they did not have it and now here we are in a situation where this body is constrained by your code next slide so here we are you sit down today not just as a city council not as a legislative body that can hear the various processes that we're dealing with you sit here today essentially as quasi judges to to hear whether Pedro gassant can make arguments on the specific ideas and whether we meet the criteria of your code to hear whether Mr MTO can do the same and to hear whether miss Warren can do the same the arguments that have been raised to before you today are inappropriately before you I'm going to explain why the first argument that miss Warren raised is that it does not comply with the essential requirements of the law I will show you as I show staff's appeal that they never reference essential requirements of the law and therefore that argument is waved the second idea that is before you is that this variance does not meet the code because it does not present a hardship if I was a Layman I would sit down and say well you have to show a hardship to be able to be entitled to a variance under the city's code but your code does not say you only entitle a hard uh a variance under a hardship It also says where you show a practical difficulty you are entitled to a variance yet they have based their entire argu argument on this idea that we have to show a hardship and that is not the criteria of your code and so again I have the task of coming before this quasi judicial body making a determination and arguing to you in a situation that is unorthodox that is unusual because this council is constrained by your code and I'm going to focus as part of my presentation tonight on that code next slide where respect to your code section 3-7 7 specifically provides the three criteria that you have to demonstrate first that you have to have procedural due process two that you have to observe the essential requirements of the law and third that you have to demonstrate that it's based on substantial competent evidence so I want you to think of this as an acronym p oob po procedural due process observe essential requirements of the law and based on substantial comp competent evidence the first item when it comes to procedural due process the core issue that comes into a play is whether you had a public hearing whether there was notice for that public hearing and whether there was a neutral decision maker next slide what is clear from this application in this background was that there was a public hearing there was an advertisement and there has never been any arguments that procedural due process was not comply with in this case and therefore that application and those arguments regarding procedure process are not appropriately before you next slide here's the second issue observe the essential requirements of the law essentially what the essential requirements of the law means is that you applied the correct law now miss Warren went into some analysis and some argument regarding that the correct law was not applied because we did a variance process as opposed to something else and that staff should have that the boa should have applied the variance criteria and they didn't do so but at the end of the day one it was never raised before the boa that the essential requirements of the law were not observed why because the code that governs variances is this code section 3- 606 the only issue before you today is that staff disagrees with what the the board of adjustment did and again that could have been easily resolved if staff believed that it was inappropriate for the board of adjustments to make a determination on height as soon as we filed the application in March staff could have said this is inappropriate we're going to go to council we're going to tell them that this should not be heard by the board of adjustments and Council has to make this decision before a pre-application meeting we have says you know what we don't want to be in a process for 341 days we don't want to be the first persons dealing with an appeal but this is the situation that we find ourselves because your code permits it it specifically allows it and again your decision tonight does nothing to change that because after this decision you still have to change your code which could have been done more than 341 days ago which would have ensured that I would not be here before you late in the evening talking about why staff inappropriately is arguing and why the resident is inappropriately challenging our appeal next slide now the final one and again we are constrained by the three aspects of your code substantial competent evidence what does that mean substantial competent evidence means that there are facts on the record that you can reasonbly infer from that would help establish the conclusion but what is important about this next slide is that it doesn't have to be a conclusion that we agree on this is one of the most important aspects of substantial competent evidence the fact that we can debate about it itself demonstrates that it's substantial competent evidence it's fairly debatable the only thing that the law requires re Ires is that below you address the specific criteria and you demonstrate it we have that here because the decision maker in this case the only decision maker in this case is the boa but again that could have been changed had staff changed and presented an ordinance before the City Council next slide now I'm going to go very quickly through this because there's been a variety of representations regarding what was said and was not said what was presented as facts and evidence but I'm going to show you as part of this the only reason why I'm doing this is because I'm specifically referring to the record that went before the boa miss Warren did not do that Mr Barto did not do that as part of this application as part of our response to them we're going to show you in each instance the specific stuff that we demonstrated that serves as substantial competent evidence and again the basis of the law the way that Florida law works is that even if you may disagree with what we demonstrated it's fair L debatable you can debate it we can have a discussion about it but because it went before the boa it stands and there is no basis to overturn it so with respect so with respect to the first variant special conditions and circumstances exist which are peculiar to the land we specifically stated in the record and we we cite the specific uh provisions of the record the special conditions impacting our land is the irregular shape of the lot staff disagrees with that next slide they think that this is an irregular shape we say that it isn't in irregular shape you know what that is that's fairly debatable they're debating one side we're debating the other side this is substantial competent evidence at bottom that's what we're demonstrating again all of this could have been obviated your time your resources could have been obviated had an ordinance come before you stating that height variances are not going to be decided by boa but that did not happen next slide variance criteria number two the unusual circumstances and miss Warren and mrto brought this up as if it was some big deal but this is actually what your code says the unusual circumstances or condition conditions necessitating the variance request are present in the neighborhood and are not I I'm going to pause there and are not unique to the property they made a lot of argument regarding case laws talking about oh it should be unique to the property it should be this it should be that in this scenario under your code which is what we supposed to follow is supposed to not be unique to the property next slide and we show an unusual circumstance what is the unusual circumstance miss miss Warren made a made a nice point of emphasizing oh Waterfront Lots They're Not Unusual they're all throughout Miami well they're actually unusual and that's why they require a higher price because you can't get a waterfront lot in Miami day County you can't get them very rapidly in any jurisdiction they are Pride Lots because they are unusual and in this circumstance in this neighborhood it is not unique to the property it applies to the property north of us to the property south of us all around us so in this case under these scenarios again because you haven't had the ability to have an ordinance come before you we meet this Criterion of the code I have to tell you there there is nothing that I would have preferred than for staff to have brought an ordinance before you and said hey no or no hyp V es would be permitted to go before the board of adjustments all of that has to be done by text Amendment we have said fine we'll go through that but now 341 days later later after staff has moved the gopost they want to say that we were required to go through that process next slide please that the requested variance maintains the basic intent and purpose of the subject regulations particularly as it affects the stability and appearance of the city again we specifically cite to area in the in the area Below in the hearing below where we specifically established that the way that the project looks the way it is amenitized it is an enhancement of the appearance of the city and in fact at the hearing staff said oh we think that the project looks good and therefore that criteria is satisfied now again I've just gone through three criteria just three off off of bat and I've been able to demonstrate how we meet each one and again even if you disagree with me I just go back to that's fairly debatable we would have not been in the scenario had staff brought and I'm going to say this like a broken record has Thoth brought an ordinance before you stating that only variances for height can only go before the city councel or we will not accept they could have just said we will not accept any variances for height which would have then required any applicant to come before you with a text Amendment simple that have been very simple because right now in your code today it specifically prohibits use variances not high variances and this is the property and it was already conceded on the record below that this is a beautiful project and therefore enhances Criterion number four the literal interpretation of the provisions of these ldrs would deprive the applicant of Rights commonly enjoyed by other properties in the same zoning District under the terms of these ldrs again we go back to the record below we specifically identify what we demonstrated so what does it say it says the literal interpretation of the provisions of the these ldrs are not being appropriately addressed now the literal interpretation of your ldrs specifically state that legally non-conforming uses such as mayorca Towers is permitted to exist within the same zoning District so in this case a height of next slide please sorry but 169 you say that we are not going Sor sirry excuse me sir we are you you can't do that no no no we sorry can't no yeah you can stop stop stop stop stop stop stop stop sir sir one moment please please if you have an objection you can State your objection but you're not going to argue what he's arguing okay can do that what is your objection what's your objection objection is that the app is arguing again the six criteria that was arguing in front of the board and at the beginning of this procedure we say that we are not arguing the CR the criteria and he's doing that and then that for that reason I object all this arguing again because that's not the point of this hidden okay your objection is noted noted thank you sir go ahead sir continue all right perfect and just just to go back for a second the only thing that you would absolutely be able to hear are the arguments that were presented below and the only person to his point that has based their arguments on the record below is me so everything that he said everything that miss Warren said you can't even hear so I agree with him on that note because when it comes to this hearing the only thing is based on the record below and we're the only ones who have a record for you about the record below and here when we talked about mayorca Towers the literal interpretation of your code specifically states that legally non-conforming uses are permitted to stay within the same zoning District so even though myor Towers is higher than the bz zone of 115 ft the literal interpretation of your code says that is permitted to stay and therefore in this scenario on this Factor we've already demonstrated four of the six factors I can stop right here and demonstrate that we've met the criteria but I'm not going to do that because we've taken up all this time we've taken 341 days I might as well take up some more minutes to make sure that we're all very clear as to what we're demonstrating as part of this application tonight next slide same thing for bayew they have a height that's higher than their zoning District that's legally permitted under the code for legally non-conforming uses next slide variance Criterion number five the variance requested is the minimum variance that will make possible the reasonable use of the land structure or building again I specifically cite to where we talked about this in the record what do we say we talk about the cost of construction we talk about the cost of materials we talk about the cost of insurance we talk about the interest rates we establish all of that as a basis as a credible basis to demonstrate that to have a project at this location at this place at this size you need to have a project with this height with this type of materials to be able to command the type of prices that are appropriate for this type of development next slide and that's specifically what we showed and we talked about these different aspects we showed the specific facts regarding the insurance the skywalking constru construction prices the material prices next slide and we also talked about the significant fact that interest rates as they are today are the highest that they've ever been in two decades again even if you disagree with me that would be fairly debatable all of this would have been aviated if you had an ordinance that came before you that said height variances are not permitted and you have to go do the ls for text Amendment next Slide the last one the granting of the variant will be in harmony with the general intent and purpose of these ldrs and such variances will be will not be injurious to the area involved now why am I doing all of this why why do I keep referring back to your code because it's your code that governs we read the code as an applicant we are obligated to read the code and so if there was an ordinance in place that specifically stated hey hey variances do not go before the boa they go before the city council we would have done that or height variances are not permitted you need a text Amendment we would have complied why because we read the code and specifically in this this instance when you read this aspect of it it's specifically stating such variants would not be endured to the area so we have to identify what about the project will not be injurious to area to the area how will it benefit the city and again we specifically cite evidence in the record below demonstrating how we demonstrate that it is an enhancement of the city next slide we talked about and this is all detailed in the specific area of the record that I quoted we talk about $100,000 contribution that we're making to lean Park that was an enhancement that we're doing within the city next slide we talked about the fact that there would be 1,400 jobs created as part of this project and that over $8 million annually would be generated by our residents next slide we talked about the fact that over five years there would be $8 million directly to the city 10 years $18 million and over 20 years $43 million so again it's not that we're just talking we're specifically responding to your code and had your code had an ordinance that was presented before the city council we would have never been able to go forward or respect to this project next slide please now one of the accents I want to come back to this issue standards are reviewed for an appeal no new evidence is permitted by your code once it get here gets here there's no new evidence and again the argument regarding essential requirements of the law was not presented and the argument regarding hardship is actually not appropriate before you next slide now one of the things that's important and I'm going to because I think this is a very important fact I'm actually going to take a pause here um so that my my team can show it it was stated on the record before you when we first started this hearing that City staff was very clear from the very beginning that we should have gone through the text amendment process but what's interesting about that is that we have on the record below where staff admitted that it did not tell the applicant to go through the text amendment process next slide please certainly don't want to interrupt a quick question for Mr cook and then a few questions certainly don't want to interrupt a quick question for Mr cook and then a few questions for Mr after that so it's really hard to talk more about the text speaking of my City attorney now if I might it's hard to hear this and to know the context of the entire disc I'm sure this is part of so text amendment is to as you say as Amendment to the LDL code so so Council councilman I can actually give you a quick synopsis I was hopeful that it was going to be able to show it so that we wouldn't have to paraphrase it but the the short the short of it is that a board it's playing two readings because I would prefer for it to just play so you can hear it that's the problem can't hear it and even if I could hear it crystal clear I don't understand its context because you're giving me a snippet of what was probably a more than 30C discussion so it's actually a specific question there's a question and answer dialogue a soliloquy that's going on between one of the board members of the board of adjustments and one of the staff members and the board member specifically asks the staff member why is it that you did not suggest the land use text Amendment application for this applicant and the staff's response was no reason that's on the record that is in before the boa and therefore the idea that we had from the very beginning known about this langage text amendment process or that the text amendment was the route that the city staff wanted to go through is is not is not appropriately before you I'll wait for I I'll I'll respond go ahead next slide please and so what we're dealing with here tonight is not a scenario where the applicant knew from the very beginning that the applicant knew knew for over a year that this was the process the applicant cannot Divine we cannot do some magal magical incantation to determine what staff wants us to do we have to read the code analyze the code and make a determination as to what's the appropriate route to take and in this case we knew that the code permitted a height variance and if they wanted to change that they could have done so by simply changing the code and in this case what has actually happened is that this process of moving the goalpost has happened several times not only has it happened with respect to the text Amendment aspect it happened with respect to the challenge of this actual appeal your code is clear that all appeals have to be heard within 45 working days the initial appeal was filed November 14th we were told it was going to be heard within 45 working days which would have been January 26 2024 and what happened it was not heard it was not determined and in this case it's in appropriately before you this whole appeal is inappropriately before you but we are forced to come up here and argue this issue because they subsequently after we raised objections to it after we've been prejudiced by raising our objections to it they subsequently just changed the ordinance they change the order which had already been decided and recorded in the public records next slide specifically and I I just want to make sure I go back to the code it states section 3- 705 within 45 days of the receip of a complete appeal application the city manager or design shall schedule a public hearing before the zoning appeals board that did not happen here what happened was after we challenged the appeal because it was not filed within the appropriate time frame after we challenged the appeal on the basis that it wasn't being heard within the time frame they just changed the order absolutely and completely changed the order next slide now as I promised I wanted to make sure that we were all clear on the distinction of your code which all of the applications all of the cases that staff is referring to are cases where that City's code talks about the ability to obtain a hardship is the only way to obtain a variance in the city but that's not the city of North Miami in your code at section 3-61 it specifically states that you allow and I'm going to take Miss Miss Warren's statement here either an apple or an orange practical difficulties are the Apple or the undue and necessary hardships are the orange I could show either or yet staff or Mr beretto never even raised the Practical difficulty issue with respect to the site never raised it haven't challenged it haven't put it in any documentation and haven't raised any issues regarding it and so in this case based on that alone the appeals are not sufficient and the appeals should be denied next slide now I'm going to I'm going to run through some of this because uh I think it's I think some of these points are belabored but this is your code here that talks about the fact that section 3- 704 specifically states that it's limited to the record below a lot of the arguments that have been raised th far our arguments that that I've noted were raised below go go were're not raised below I'm going to skip through Mr about those arguments I I just don't think uh I don't think I need to address some of those just keep going we can we can go through those I think uh at the end of the day they're not based on fact they're not uh pertinent to this uh to this application and they're not supported they're not supportable to overturn the boa decision now let's specifically and I want to focus on this because I think this is very important I want to specifically talk about staff's appeal of our application because I thought miss Warren gave a a beautiful presentation earlier I just don't think that it's appropriately before you neither are any of the arguments that she raised are appropriately before you and so what does she say as part of her challenge to well not her challenge Cheng but stash challenge to the application and we've highlighted it in evaluating an application for variances the boa must find that the application demonstrates compliance with four of six criteria for granting variances after careful consideration staff determined that none of the variance criteria were met and recommended denial of height variances the boa already evaluated staff's recommendations and simply disagreed again going back to what I told you ear earlier about substantial competent EV evidence fairly debatable and sometimes very Council goes against recommendations of Staff staff's recommendation is not the determination of what happens she talked about unelected people making decisions for this city the only people who makes decisions for the city is the city council not staff not anyone else but your code provides for the determination of what we're supposed to do and what we're required to do as part of this next slide and then the very next statement sort of limits what they said because now they're they're going back and they're saying specifically specifically when a hardship does not exist the appropriate mechanism to Institute a development standard change is through a an ldr's text Amendment do you see anything in this appeal form about essential requirements of the law do you see anything in this appeals form challenging the law that was reviewed and analyzed below no you do not you don't see anything about that and as a matter of fact in this appeal do you see anything even acknowledging referencing or even citing the fact that your code allows practical difficulties you do not and so it's inappropriate one for us to be even be here this evening I wish you could have had your time back because this appeal should have never been heard because it's untimely number two there is no appropriate basis for the decision that staff has made to challenge this appeal because everything that they're challenging every argument that they have raised has not been raised on the record below and again you would not be constrained this way you would have not been circumscribed this way if staff had brought an ordinance specifically stating that you are the only people to decide height variances or that height variances are only cannot be approved by variances but have to be decided by text amendments next slide now one of the things that we noted is that in the kit there is a memorandum of law that seeks to I guess supplement what was in the record before you can see that the date on this memor Rand of law is actually today our hearing is back in October 18th 2023 you cannot even consider evaluate refer to or reference this memorandum it's outside the scope of what your position is as quasi judicial individuals this evening and so again everything that you've heard even though I thought miss Warren did an excellent presentation we simply not appropriately brought before you because it's not permitted by your code if you wanted something if this Council or if staff wanted something to occur occur they could have simply changed the code gone to the city council requested the mayor vice mayor council members support an ordinance that would have prohibited height variances and that would have thereby required text amendments at the end of the day and I'm just going to stay with this because I think I think we've clearly shown this we have complied with all of the requirements of your code all we can do is comply with your code all we can seek to comply with is your code not opinions not perspectives not ideas but your code and today after 341 days of this process we still don't have an ordinance that would prohibit this so even if you deny this application another attorney could come before you with the same exact thing you're not resolving anything on this issue and you could not because you are constrained by the criteria of your code I thank you for your time I'm here to answer any questions thank you awesome thank you so much Mr attorney what is the guid at this point um so the process allows cross examination but there are no witnesses to cross-examine Yes um it does allow for you to cross-examine so you may at this point ask questions of either staff or the um or the appellees and then following that the appelle does have the right to to rebuttal that's the only uh youut what the the whatever want yeah at that point oh okay well both sides according to this is only the Appel okay only the Appel okay all can cross-examine okay um you you could sit Mr um hero I I just have some few General statements I know some of my colleagues they have some um General statements because there was a lot that was thrown at us and I think p Gant I think you you mentioned it Mr Gant um I don't know none of us here are really attorneys but CU it was the show based on on what what what we were hearing but there's a couple of things that you said that that really really struck me first and foremost I I do think we seriously as um folks who the voters have um Place their confidence however you want to say it to do make the the type of decisions that we we all have endured in terms of get you know getting stuff from the from the public and and Mr gasant certainly has been you know you've been in the in the thresold with us especially with the White House deal um and how complicated and complex that was for the residents in terms of coming in into a conclusion um even putting um different um restrictions and and Covenant restricted covenants on on that applicant but but I do think we need to exam the board of adjustment because they are supposed to be a representation of the council and make decision based on the person who appointed them on that particular boy but I've been I I've been serving here for over a decade and obviously Scott way longer I have never honestly really paid attention or even um you know in terms of what what the different boards does we respect the opinion we read the opinion but when this issue came up I I have to admit because that's all I I I know how to I didn't really paid attention to staff at the beginning I I did listen to the developer I looked at the project I you know I thought it was a very nice project etc etc I completely did not even put in mind there was any variance that was asking um of of the project and that's a mistake of my and and to say now and I and I heard your argument someone as astute as you and who has done this to us and and I guess as as the as the attorney you you have the right to defend your client but it almost seems like to me and outside somebody who's not an attorney who's listening to you like you didn't know the process or staff should have done this staff should have done this and I think you're one of the people who knew exactly the you know um you know the process in terms of of you know how this thing you know go um yes we have made some mistakes in terms of the city um that was a loophole that we are working to fix I don't know how it got I do remember I think if I recall how we changed that particular giving the boa some power but I don't think the intent when that did happened was ever for a developer to go to them and and and and make that type of of of request especially now if if if you were a different attorney with a different I would have said okay maybe they didn't but you were here with us about a year whatever the case is with the White House you know what we went through and how the residents came out and what was happening so if a client came to you looking at okay you experienced you know North Miami you've been there I think you could have I I I don't know what your discussion with them but was like hey they had this thing it was completely you know this it's it's not an easy um process um by having said that I was disappointed with the boa um decision and then the other one they did last week um in terms of Staff explain very clearly what what happened in in fact tonight we heard it again I think um miss Warren made made made a very powerful case so is U Mr Berto in terms of what happened and and I and I heard your your your case and there's a lot of back and forth um in terms of what happened prior to the alto and the decision that made last week by the boa um but the commonalities of it you're right another applicant absolutely could come in tomorrow and apply because we have not made the decision I've asked I I've had conversation with the with the attorney but it is a process I I understand it doesn't happen overnight that we are waiting for that leg legislation to come but I think us working together having to work with you with those various um you know clients that you work with this could have been where hey you know what this is the intent um and we could have told you what um if you did not know or was sorely relying on staff to guide you because that's what it seems like tonight um then I would have told you if anybody would have asked me I would have told you it's a very complicated process and I don't I do not think that it should have gone outside of this Council and it would be something that involved the residents the community folks that this thing really really do um you know affect um and and there's a lot that goes on because um I never watched the the advisory meeting except for last week um I saw the meeting and a lot of folks were talking about the condition of the the the um it it's a horrible situation and that's not why we here but but I'm more puzzled by the the way this went down and again you you you found a loophole whatever that our Charter um allowed in the code to present this and it was explored and it was you know it is what it is we're not saying that you did anything wrong or not but I do think you as someone who has come before us and understand how we deal with these complex issues do know um the outcome of these decision and I think I could very very very I won't say carefully I could almost say that you you you do know that the process was flaa um well at least I'm saying it um but I I know some level of somewhere has to be okay I know this is okay you know but we know this is although it's like they all say although if something is right that does not mean that you you you do it this is one of those situations which I would have thought that you could have or or the client could have said okay you know what although this is um an option for us to go but this may not be the best option for the community for North Miami looking at um at the decision the way um this thing has um gone so that's my opening statement um and terms of this and I will start with the District representative um and then we'll work our way down thank you mayor um first ID like to disclose expart Communications I did meet with Mr Hernando I met with patro kassan I did attend the community meeting um where the first I think issue was brought up and we did discuss the process as well and I think members of the development team as well um my first question is this council member and Mr attorney you could guide me do you want us to um put on the Records who we spoke to based on this um this item or because it's it's kind of too too it's kind of confused just this one oh I haven't met with anybody then okay never mind thank you um so my first question because when this item was being brought um before it was brought to the to the boa they actually had a community meeting and at the time I met with the city manager and the city staff um trying to understand like how could this be like how could someone go before the boa and submit you know a variance for height when traditionally what we've seen is a site plan or a text Amendment or so forth so my first question is to staff um why didn't we fix this prior to or could we have fixed this prior to it coming Madam manager City attorney if you guys want to answer that question like could we have addressed this situation prior to it coming before the boa well you know I'd prefer to let miss Warren respond so I'm not arguing so I think there's a misunderstanding about there being loopholes or something wrong with our code and um the city staff does not concede that there's anything wrong with our code we think our code is being abused um and so what you're referencing Madame councilwoman is once the application is filed with City staff there's only limited Authority that City staff has and so so once the application is on file all they can do is review it look at the four out of six criteria and issue their recommendation they can't stop it from going to the board of adjustment once the application is filed um staff staff's authority to to stop it from progressing um is very limited because of the due process that the developer has they've filed their application they have a right to be heard before the board of adjustment and the staff recommendation to the board of adjust adustment was what again denial not just denial denial based on the fact that it met zero out of six criteria and it came with a staff Report with analysis showing how the criteria was not met and that was prepared by our staff correct correct and after that we also re so there's so there's nothing in our boa process so with that being said is this something that the council should now fix via an ordinance or via you know rules and guidelines of the boa to kind of address to make sure that that doesn't happen my thing is how do we prevent this from happening because I think for me up here I don't think my my my opinion is that it should not go before the boa for a Hy this is something that should be that should come to the city council we were elected we make the tough decisions the board of adjustment is not the one to sit up here and say hey we're going to Grant someone 50 additional feed 100 additional feed it's just out of it's just out of pocket that's it's just out of pocket for me and I don't want to set a legal precedence that now you can go before a board and request certain variants when we're up here we're in the hot sea this is what we're you know what we're we're what we were elected to do so for me how do we fix this moving forward twofold number one Grant this appeal send the message to the developer that they cannot continue to abuse your code to obtain height variances it's the first thing you do stop the floodgates close the door number two maybe start having policy discussions at your level about what do we do at one point in time historically Board of adjustment was an Advisory Board and they did not have the final say maybe that's the solution um I I personally don't I would not like to see height variances carved out of the code I think there are projects single family homes fences there there's certain things that do meet the criteria that board of adjustment routinely grants I just don't think this project met the criteria but again that is the will of the council you certainly are within your rights to carve out height variances or even make those height variances come back before you but those are all policy discussions so to answer your question number one Grant this variance that stops the floodgates number two look at your policies see how you can t down any kind of future abuse of your process if if I may through the mayor um I want to address this because this was what this was precisely what I was concerned about about this appeal process uh miss Warren not just serves as the advocate for staff she serves as an advisor to the council and so we've been concerned from from the very beginning about that can proc stop stop mayor mayor mayor I'm your adviser miss Warren who I've not talked to about this appeal is handling the appeal I have not talked to about the appeal I didn't go over anything with the appeal so she's independent of me and I am your representative even tonight when you asked me a question I said I'm not answering the question because I want to remain neutral miss Warren is arguing so that that is not a concern and it's not valid that that that's fine so with respect to our first issue with respect to eliminating the floodgates by stopping this and denying uh approving this appeal the easiest way to have stopped the floodgates is 340 days ago having adopted an ordinance that would have prohibited height that would have been the easiest way because then this would have been the only one that would have come before you you would have major determination that would have been it but this does nothing to stop any other applicant from coming before this board and making the same exact argument and taking up time and resources of this Council and staff this is not something whereby to stop the floodgates you have to deny this application we we did what was permitted by the code what was appropriate by the code and we followed your code and now you're constrained as to what you can do given the criteria of your code mayor can I just jump it one more again I just want to remind you this is cross-examination this is your time to ask them questions uh number one and number two the Appel the um Appel has the ability to rebut so I'm just letting you all know well that's got go ahead go ahead you done thank you so much councilman Galvin no questions at this time thank you vice mayor no questions what we do you have a lot um um yeah Madam Warren okay so councilwoman Timothy thank you for all of your presentations councilwoman Timothy asked a question on what could we have done to what could have have been done to stop the process and you're like you know reverse Grant this appeal that for me that wasn't suffice what I'm what I'm what I'm trying to understand is or or maybe I need I'm trying to understand the process so if someone um anybody that wants to do a variance could just come fill an application submit it with submit it whether it makes sense or not and it has to be heard is that the process correct correct the current um criteria under the code is that the application is submitted staff will review it look at the code and make a recommendation as to whether it meets the code requirements staff did their job here um the idea that the staff would have the ability after the application was filed to come here to the mayor and Council and seek an ordinance Banning height variances is irrelevant we would not have been able to do that after the application had already been filed is it is it is it true that this has been past 45 days transactions no there is actually only one order that has been properly rendered in accordance with both our code and the Florida pellet rules of procedure so a according to case law Homestead Miami Speedway LLC versus City of Homestead an order is not considered rendered by the agency and an appeal is premature until the order is signed and the written order is filed with the clerk of the lower tribunal okay so could you walk that for me can you give can you give me some realistic dates so we can figure out so as far as your concern we are within our 45 days is that what you're saying the date of rendition for this order is January 31 2024 so we are and the appeal was filed the appeal needs to be filed within 30 days of that date the city filed its Appeal on February 2nd 2024 we are now from February 2nd to now within that 45 day period okay okay um out go ahead so vice mayor I I want to address this because I think I think this is very important the appeal that she's referencing from February is not even in your kit the appeal that we've seen is only the appeal that's referenced from November 14th that the city joined and that we've cited in our presentation that's the appeal that we have on record that's the appeal that I submitted legally written objections to and that after they receed Reed those objections they changed the order the order was changed there is there is a boa order that was recorded what's what what's the boa order that was recorded there there was a boa order from November 17th that was recorded 2023 subsequent to that order right it was from November 14th that one they started calculating the dates for this appeal they had made a determination that this appeal had to be heard by January AR 26 2024 give me a second please um Jennifer what is the order that he's talking about there was an original order that was never rendered it was signed and notorized but it was never filed can with the clerk for myself and for everyone listening when you say it was never rendered could you meaning it was never filed with the clerk meaning that there is absolutely no way that anybody could calculate the dates from a date that does not exist on the order it was never stamped as filed so the city never changed the order the city did not play games we stamped the order we stamped it with a date so that both Mr gassant and I as well as the appell at court of the 11 circuit if it gets there would be able to properly calculate the date so if you compared the two orders the only thing you will see there is a indication at the bottom showing the date that it was filed with the lower Clerk and that is January 31 202 for and so since that original order was never filed it was never rendered and there was never an appeal to be had because it was not an appealable order it was not appealable until January 31 2024 when it was filed with the clerk okay um so so the only thing I want to make note and I I'll put this in the rebuttal and I have it in rebuttal is that the same form that they changed is the same exact form from over 10 years ago the order that they say was inappropriate we have in a previous boa order on the same property that has that same timing and that has a date which is the notorized date so essentially what staff is saying is that every order of the boa from over a decade ago has never been rendered and and that that is a problem because now you're subjecting all of these issues to appeal and as your City attorney said it from the get-go this is also the first time that one has ever been appealed so that is why it was appropriate for us to correct this defect because there is an appeal okay anything else um so in terms of what I want to address is is the Staffing part initial my understanding is there is he Pedro garant went through a line a timeline of when he spoke to staff that he was going to submit that he he then was not advised until I guess October September September that a Tex Amendment would be the the best route is that correct I can tell you that in my conversations with staff and I do not have the exact date or timeline that Mr gassant has um in my conversations with staff I have been advised that this was disclosed to the applicant from the get-go and I can tell you that I did sit in on one of the pre-application meetings that was referenced by Mr gassant and City staff did tell the developer that this was the inappropriate method but what I cannot tell you is whether that pre-application meeting that I sat on is the same one that comes from this Vari what's the month that you set on that pre-application meeting that I could not tell you right here right now I'd have to go back and look at my calendar history it does it seem to you that it was before September it I do recall it being before September and I do recall Mr cook bringing this up in the lower um level arguments that he did not think this is the appropriate method and that he did advise the applicant to seek another method is there some okay so no so we've kind of answered that question that there's nothing illegal that they have has it has his client or he have have they done anything illegal Mr gassan Mr gassan Right was the I I do believe that they obtained a variance that does not comply with the four out of six standard that is in your code so I do not think that they have obtained a lawful variance based off of the criteria in the code okay that's all the the questions that I have for now okay councilman uh thank you uh very much mayor uh good evening Mr Warren Mr gon good evening good evening um I'll start with you u m because um throughout um Mr G uh uh proceeding is like basically there's a 45 days that was not being respected um just for the record we were waiting the 45 days so the 45 days starts from the date of rendition of the order and the date at the 45 days is from the date that the city filed its appeal so that date starts on February 2nd 2024 so it is the city's position that we are within that 45 day time period Well thank you now uh Mr gon uh you said that and I quote uh speaking of the board of adjustment the only decision maker in this case is the board of adjustment can you elabo on that please absolutely so the way that your code is structured it specifically provides that variances are determined by the board of adjustments and specifically at your code at section 306 section 3-61 it actually contemplates the type of variances that cannot be considered no variances may be granted to permitted use not listed as a permitted use in the applicable zoning district and or to permit a prohibited use so it does have limitations in the variance code as to what the boa can consider height is not one of those items and so when it comes to variances the boa is the entity that's specifically identified as hearing for variances and one clarification that I want to make is that when you when you're talking about variances we're talking about site specific determinations where you have to show that four out of the six criteria under your code are met there have been statements regarding another application that didn't do a variance but that application that is being discussed had to go through a land use change and had to go through a zoning change this application didn't have to do that this application already had land use it already had zoning so when you're doing a site specific item and you're not talking about extending a zoning District or extending a land use designation you're talking about a variance because you're talking about a sight specific issue and so that that's what I wanted to make sure that I address with respect to your to your question thank thank you very much for your um clarification later on your um presentation um you said um speaking referring to staff now said the only people who should make decision for this city is the council not staff so can you um um just clarify absolutely so the the way that this Council makes decisions is through ordinances through laws that you pass and so in making those determinations for an applicant who may know about the city or for an applicant who doesn't know this is about fundamental fairness for an application who doesn't know once it's in your ordinances it becomes very clear what the process is and where you go and so just because somebody doesn't agree with your process just because somebody doesn't think your prop process is correct it's a legally permitted process and so from our perspective there was an easy way to deal with this which would have been an ordinance that the council would have voted on that would have made a determination that would have prohibited height and would have made a determination with respect to the text amendments thank you I I do believe um everything that we are discussing tonight based on um Article 2 Division 3 and mainly um section 2-31 and with the letter b that said and uh I'm just going to read it uh the talking speaking on the on the board of adjustment um they hear um to hear and decide variances to the city's ldrs right so basically that's that's the reference that you said the only uh people should be making that decision would be the board of adjustment isn't it that's right thank you but now um going back in um article two decision making and administrative bodies division one says city council I am not going to read the entire section but it is on um section 2-1 of our D 101 of our code powers and duty at the very bottom it said the city council shall have the power and duty to act as the final decision maker in these L ldrs with respect to certain types of application in appeals so we don't have a loop we do not because the the ball stop with the city council that's right is that clear that that is absolutely clear so therefore the board of adjustment cannot be cannot have the final C in this matter would you agree with me on that no so when it comes to this matter the reason why the city council doesn't have determination over it is because the city council was limited and it's a ility to hear variances it doesn't hear variances I am again speaking on our on our code yes on your and I'll give you the reference okay and I'm going to ask you the same question okay based on Section 2-101 powers and duties at the very bottom if you look at it it said that the city council meaning that this body they are the one to make the final decision not the board of adjustment so so I want to be clearer because in the section that you're referencing Council member 2-101 which I'm looking at it calls out the power and duties that the city council makes determinations on appeals of the zoning appeals board which is what you're hearing today comprehensive plan text and map amendments which is not our application conditional use and plan developments which is not our application development agreements which are not our application plating and subdivision which are not our application protection of landowner rights vested right determinations which are not our applications and text of ldrs and map amendments which are not our applications but you but you you said that what is the first reference that you said that is in our application so it doesn't have to be all once we have one no no it it says it it clearly says the city council is the final de decision maker for and then it lists the specific applications that's the final decision- making for that's that's that's what it says I don't know if we are um looking at the same no no I I think we are we're looking I'm talking about section two m-11 yes I'm powers and duties yes I'm looking at that and if as I'm looking at it the specific code provision says in accordance and and I am going to tell you that I'm looking at it the board of adjustment if you will call and everybody knows that the board of adjustment of all them appointees are from this Council in here mhm so there is no way that their decision can supersede our decision in here would you agree on that yeah so yeah so I think I think the decision with respect to the appeal of this application is appropriately before the city council sitting as a zoning appeals board if that's the inquiry that you're talking about absolutely the appeal is appropriately before the city council the point I was trying to make and maybe I wasn't being articulate in making it is that the variance itself is a determination that the boa has the opportunity to make yeah but we gave I'm sorry councilman but we gave them that right couple years ago and I remember now that trigger we were a little bit it was a lot of little cases coming in front of us and then we kind of say you know what it's it's they could deal with it again I don't think the intent of it was never that's where when we talk about the loophole maybe I like I said I'm not an attorney I'm a teacher but I don't think the intent of when we did that was for any applicant and and we talk talking to them out there think that they could go behind our back and do what they got to do to go to a board to make the decision that's not going to happen because I spend too much time in hours on the phone with these residents to know they held us accountable and that's the part that we trying to get these folks to understand we would we did not do that with the intent and I think I voted for for the resolution when it came in front of us and yes you're right that is something that I talked to the attorney about in us correct ing that because yes it it works for us for a couple a couple of years because we never had to deal with that like I said the the the last 10 years I've never when when the when the developer was talking to me I was I love the idea I like the building and everything I so that looks pretty you know that I never never even imagin no Heights no anything it's when they talk I said wait height what you talking about height cuz I know and you know what we went through to the White house and that was not even that that even that big in terms of this particular project so there's no way in America I or anyone at least here would have just said okay let's just if that's the easy way out let the the board of adjustment deal with it that's fine but we know that's not what these the residents the folks that's not in the best interest of the city and again we're not talking about the project I don't have any problem with your project or or whatever the project might be but the process and we that was flawed in the way in the fact that as a student as you as the attorney who dealt with like at least three or five different projects sometime I get confused which project because you you're the attorney representing all of them knows the actual process and when I hear I'm like okay so I I really did um did not know that the the the boa even because we never had to dealt with this had the authority to you you know give Heights or because we they never had to deal with this until this um this applicant came last um last year with that so that I think that's the little unease for us and a lot of the residents assume that we know but um I I I that's not that's not sitting right with us but that's go go ahead councilman I'm sorry no no no I was uh um basically I am going to uh go back to this point and just make sure that we agree on that that The Bard of adjustment acting and voting to Grant this uh variants uh would not be the final if there's something wrong we need to go back and look at it because he said in here clear on this um the final decision maker in these ldr with respect to certain type of application and our appeal will be the city council that's that's that's that's what we have here and that's why I Want U both of us to agree on so with respect to what's being stated the what which your the text of your code States the city council is the final decision maker for appeals as the zoning appeals board so if you're talking about with respect to this appeal then absolutely you would be this final decision maker with respect to this appeal which is why we're before you definitely not to cut you of so we are not like in your um presentation feels like at some point you uh making reference that it's like we're wasting time because this should not come before us so that's that's that's the reason why I want to get get this clear that's why I want to get this clear for the record so so here here's the two points that I I want to emphasize with respect to wasting time the first was from the untimeliness of the appeal in the board order there was a board order that was issued that board order was issued on November 17th 2023 as part of that board order it required 45 days for us to hear the appeal subsequent to that I drafted legal objections to that order after drafting legal objections to that order staff changed the order so that they could have 45 more days and so that's that's what I'm talking about the time because it's it's untimely and then the second point is that it could have been it would have been very easy for staff to put together an ordinance that would have just been very clear so that there's no mistaking it that all determinations for height go before the city council that that would have ended it that that's the point that I'm making and maybe I'm just not being articulate about it is that that could have come before the city council the city council could have made it the decision and you wouldn't have had to deal with issues like this moving forward or being concerned about the flood gaug being open um thank you uh me no further question thank you thank thank you so much great vice mayor thank you I just need to disclose that I had expart communication with Pedro Gan wanted to put that on the record thank you okay um thank you vice mayor um is is there anything else Mr gon you want to add closing argument that we do that sure sure I want to go ahead and uh just show some of the points that I wanted to make as part of the um application I don't know if it's going to show so mayor just just so you know at this point this is his rebuttal so we shouldn't be hearing new arguments it should be rebutting something that came up before yeah so one of the points that was made was the fact that you know there's this board order that was issued on January 31st and again to date I actually just got the board order yesterday because I I requested it but I hadn't seen this new board order that's being referenced and so the only board orders that I saw were from November 17th of last year and you'll see that it talks about and what I've done is actually compare two board orders one from 2023 from October 2023 where the hearing date was October 23 and the hear hearing date of October 16th 2013 and the reason why I've compared these two is because if you go to the next slide you'll see that the same exact format existed for both of the board orders this has been the board order that has been in place for over a decade and so we think it's patently unfair for City staff to hear our arguments receive our arguments and then change the bo board order based off of our arguments and we think that that was inappropriate when it comes to this process of the pre-application and again I'm just going to address specific issues that uh were raised uh during the uh uh testimony or uh response to questions uh miss Warren talked about another application that she sat on the pre-application for that was not this application that was for another application it's not this application she did not sit on the pre-application for this application then with respect to the criteria for the code um I'm sorry I'd like to interrupt please yeah because now you're saying that she didn't sit on this application so I want Warren to come back and to clarify that because that's that's I said I sat on one of the pre-application meetings I I think I told you I couldn't recall which of the and I do recall the discussion being that this was not the appropriate mechanism I think staff even chided Mr Gan and said we've had this discussion before that this isn't the right um mechanism but I I don't recall which of the applications just wanted to make sure that clear thank you thank you okay and so from our perspective we we do think that at the end of the day you're limited and constrained by the code that you have here in the city this code requires you to look at the procedural due process the essential requirements of the law the issues that were raised were not raised below you are limited in the criteria what you can hear and what you can base your decision on and for us we think it would be one inappropriate to sustain the appeals agree with with the appeals when they're not consistent with the criteria of your code we have demonstrated why they're not consistent with your code and we've we've demonstrated why the arguments that have been raised which are essentially that this wasn't the right process is not part of the appropriate criteria that's not part of the criteria that's in your code it's not something that that's for you to consider it has to be based on arguments that were raised below that argument was not raised below it's waved and because it's waved you can't be in a position now to then pull the rug from Up us and say hey we don't we don't like that this process occurred this way it should be that it's based off of the criteria of the code today what exists when we submitted our application and therefore we think it would be appropriate to deny the appeals thank you so much and as always here to answer any questions thank you so much Mr G thank you so very much for your presentation Mr Roberto and Jennifer Warren um thank you thank you thank you all I think we all said what we needed to say um I'm ready to make a motion so we could um forward Jeff so I I I word my motion correctly um I want not being an attorney I want to make sure tell me what you want to say then I'll tell you I want to vote no against it so how do I say that so do I grant the variance or do I how reverse it reverse it no you would be reversing the variance and then you'd have to pick one of of the three criteria that I gave you there's a whole bunch of um right here provide due process number one okay so I think we can see that that there was there was due process but the other two is observe essential requirements of law or base this decision upon sub substantial competent evidence two two is pretty much two three actually B on but let me ask a question um not of you m Mr um cuz though probably I'm still puzzled how did the the the board members from the boa didn't listen to the the staff analysis or suggestion I'm I'm just asking that happens all the time oh it does okay clients don't always listen to their attorneys no no no I happens yeah what does that mean I just no no no us I understand us up up up here but we you know we go back and and and we get briefing and and you guys explain and and we ask questions because we're not area expert at these things um and and I had to admit I was wrong because I was not even listening cuz I didn't know this was one of the criteria that that was being given so um okay it oh are you you you you replacing the SEC um the clerk yes temporarily okay good evening everyone I have a motion on the floor by the mayor yes okay need a second second and go ahead State the the motion the motion was um based on okay so based on is it of um okay so the so this would be because the word that she used that's I'm a little confused grant for GR okay so you're making a motion to reverse the decision of adjustment and you're finding that the board of adjustment failed to observe the essential requirements of the law right guys yeah so that's the motion and I second it so I have a motion on the floor by mayor dese as stated on the record and seconded by councilman Charles I will do a roll call councilman Timothy yes mayor Des yes councilman Galvin yes councilman Charles yes and vice mayor esy Irving yes item pass is 5 thank you so much thank you thank you Mr G thank [Applause] you oh good our favorite part of the meeting meeting ajour no no no citizens form no oh Executives okay well no no no he's he's he's coming let's do after citizens form and then we do the council report citizen form guys please if you keep it two SEC two minutes please one minute please been a long night if you don't have nothing to say don't please it'll be better I I don't see anybody coming forward for Citizens perfect we love you all thank you um we really do they happy so they're good um Council report real quick no report district one okay District Two no report District Two District three I may not have no report to the way they going I feel bad I was going to talk about know me fast I'll move to J I'll second that okay yeah no report here either no report Jesus okay no report but um go ahead councel um guys guys guys session uh yes sir sir I need to um request a executive session the case uh is the Neil quavis versus city of North Miami it's case number 20 201811 899 ca01 it's in the circuit uh court for the 11th judicial circuit there's actually two other lawsuits that are being settled um together with this um I know normally we try to do when when I ask for the executive session we try to do the executive session before a council meeting however in this case I'm going to really need everyone to come back as soon as possible as early as next week because we are on a trial docket for March and unless we have a signed settlement um agreement U which only you can sign uh I don't I don't know if we can stop that that case so I really virtually or you prefer in person we have to do it in person so no I'm saying if if most of us here can some of us be virtual well you know we we'll talk about how to how to how to schedule it majority yeah okay so we'll coordinate with with our office real brief um before we go to the the manager report I just want to say thank you so much from the bottom of my heart to Christine Carney Anisha Daniel yes yes yes yes I wasn't gonna say much and you okay Rasha the entire you you was at the door mening the door but I saw some people went in that was not supposed to go in so I don't know if I should I want to thank the entire the entire city um and we do what we do again um for for the residents um and and I think people coming down to see our beautiful city um see what we have to offer in the emails the text what we've been getting especially on social media people are saying different things about North Miami it was a very people making it this was the eighth annual um event thank you thank you thank you um again to the entire city um as we move forward to a very successful year of of of event last week I was informed um I was appointed to the um inter intergovernmental advisory committee of the federal Comm um Communication Commission which is a big deal for us the commission um sered as a advisory um committee talking about advisory committee to the actual FCC um commission and of course they are a platform that amplify the voices of State local and um Federal tribunal um you know governments in terms of regulatory processes of the commi of the commissions making sure anything dealing with communication um that they they they do um serve so I had served on that committee a couple of years and under the Trump Administration um that's a long story but I I am back I I got the call last week um and also I wanted to acknowledge the social service department on Wednesday we celebrated the fth anniversary of the um gold and silver senior program lunch and it was totally beautiful the Pio Department um the social service department um Albert thank you Sheila um the the management office everyone um thank you thank you the seniors were so so nicely looking and so glad and so proud and in in all of this um thing and this is something that I created in 2015 to c92 for and it's just it's just so nice additionally and and I think this the last um uh announcement I have next month we will be um I will be joining other Mayors attending the climate Mayors leadership Forum hosted by climate Mayors and co-host by the C40 cities and urban sustainability directors of net work with support from The Rockefellers Foundation alongside with the Aspen ideas this is a conference that will be held in Miami I will be inviting um some residents to go with me any um policy makers on here are please more than welcome we're going to have Mays from all over the country coming to attend um we'll be discussing um topics such as climate change policies and how we could do better with re re renewable energy and impact that um climate change has on housing and of course homelessness um that's basically it for me thank you thank you all and anything else Madam manager no sir Anisha move to a can I I need to make a report oh oh we forgot oh you gave your report when you're out of the room and so on Thursday February 29th 20124 at 6m at the North Miami Public Library will be the office of the city clerk is hosting the campaign finance software training so essentially what we're doing is onboarding new technology to be able to receive campaign Finance related documents and so for anyone who is curious interested if you're a candidate and you would like to attend please feel free to RSVP at cityclerk northiam fl.gov or call the city clerk's office and there has been a slight change because we moved our elections I forgot that the library is not as available and accessible as usual and so instead of it being in the voter wing it will now be in meeting meeting room three at the North Miami Public Library a huge shout out to the Black History Month committee I know it hasn't it wasn't an easy month but y'all did a really phenomenal job with a lot of really innovative ideas brought forth and so thank you so much a reminder that the presidential preference primary election is March 19th do remember that because Florida is a closed primary State the only people who will receive a ballot are folks who are registered as Republicans okay and uh Friday is Employee Appreciation Day and I really want to Express gratitude to each member of my incredible team so dror they are not all my employees so I don't know what the O was for but they're yours to appreciate and I appreciate them too but I'm talking about my team so Dr Stephanie Janai Kyla Leila Roberto and Taisha thank you so much for your hard work your dedication and your commitment to service to this community all of which are truly the driving forces with behind the office of the city clerk and honestly my leadership would be meaningless if it wasn't for each and every single one of you uh who comes together to serve our customers your colleagues and this entire city uh you know delivering a level of service that so many people stop by to compliment I mean they will stop me anywhere and make sure that I saw their text their email their got their phone calls about how much they appreciated the work that you all do so thank you so much to all of you for sharing your Brilliance with me and finally some happy birthdays happy birthday KT councilwoman KT and of course today is actually the birthday of a few of our residents and business owners and people who are involved so we have a board member higo L uh our former First Lady Sarah Bim and then of course a former public servant who used to work here karolina matam Moro so happy Birthday everyone and that is all move to J okay okay all right any opposed yes it is now 9:41 p.m. thank you