2012-0315 Regular City Commission Meeting

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Summary Minutes: Regular City Commission Meeting March 15, 2012 City of Sunny Isles Beach, Florida Mr. Price summarized that they are prepared to give a fully executed covenant subject to approval and you will state the time that is reasonable to the City. They will limit this to a daycare facility of children five years or younger, and they will not ask for an increase in the number of children until January 1,2014, and they understand that whatever the regulations or rules are at that time they know they have to comply with them. They also have the Covenant from the shopping center owner that states nothing other than this facility can be placed within 4,000 square feet in this shopping center, so you are not going to get multiple requests and applications in this location. Parents then testified in favor of the center. Rod Feiner, Esq. said he represents Ana Tkach, Ludmilla Pertsikhias, and Igor Balish who are all residents of Wilton Towers opposed to this application, and he asked that the Commission defer this matter for three months. There was never a traffic study performed or submitted as the backup that they can look at before hand, and in today's agenda you added a traffic report and you had a traffic engineer giving expert testimony which prevented his clients from hiring an expert to present rebuttal testimony. Before going forward, they will need three months to do traffic counts, write a report, review the report, and prepare the appropriate rebuttal documents. This is a quasi-judicial proceeding and is governed by set standards and you have to base it on competent and substantial evidence, which you have none other than possibly the traffic engineer and one of the parents. When Mr. Price spoke ofDCF approving this site for more than 40 children, there is nothing in the backup that talks to that, there is nothing in the Statutes that say daycare should be given special zoning treatment. If you do not continue this matter for three months and you rely upon anything that the traffic engineer has said then you have substantively denied his clients their procedural and substantive due process rights. The variance in of itself doesn't relate to traffic at all, it is a criteria, they have not demonstrated that they have met any of the criteria for the seven items needed for a variance. Commissioner Scholl asked Mr. Feiner why his clients do not want the daycare center, and Mr. Feiner said that they have significant issues with the traffic generation, what is going to occur in terms of traffic, there is a large difference between 6 and 25 children, they have significant issues with a large full scaled daycare being placed into this center. There is also the issue of how traffic and parking is going to flow in this area. They can also get kids from outside of this area. The covenants are not binding and there is nothing in there about that and he doesn't think it is enforceable. We are still governed by what the criteria are. Commissioner Scholl asked ifhis clients live in Winston Towers not Wilton Towers. Mr. Feiner said they live at ] 9380 Collins Avenue, and Commissioner Scholl said they don't even live in the proximity of the daycare center. Mr. Feiner said they are canying the ball for a bunch of other residents in Winston Towers who did not want to be formally represented by his firm because they did not want to sign retainer agreements. Commissioner Scholl asked the City Attorney if they have to deny this based on what this Attorney is telling them, and City Attorney Ottinot said no, he disagrees with Counsel. This is in compliance with due process requirement of the law, in fact, Counsel has opportunity to cross examine the traffic expert here tonight, he has not done that. Our Code for conditional use does not require an applicant to provide a traffic report, this was a courtesy done by the Applicant. In fact, if Counsel wanted to challenge the expert here tonight he could have 6