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HomeMy WebLinkAboutReso 2007-1105 RESOLUTION NO. 2007----UD5 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AFFIRMING STAFF ADMINISTRATIVE DECISIONS RELATING TO SITE PLAN APPLICATION FILED BY PUBLlX SUPERMARKETS, INC. AND REJECTING THE APPEALS FILED BY PUBLIX; PROVIDING FOR FINDINGS OF FACT; ISSUES PRESENTED; PROVmlNG FOR CONCLUSIONS OF LA W; PROVIDING FOR THE RIGHT OF APPEAL; PROVIDING FOR AN EFFECTIVE OATE. WHEREAS, Publix Supermarkets, Inc. ("Publix") filed two (2) administrative appeals relating to a site plan application and a rcvised site plan to develop a mixed used project which consists of a new supermarket and two condominium towers, which includes 378 units and a large marina, for the property (the "property") located at 18320 Collins Avenue; and WHEREAS, the City Commission conducted a public hearing on Thursday, June 21,2007, at 6:30 p.m. to consider the administrative appeals filed by Publix; and WHEREAS, the City Commission having considered the evidence presented and arguments of counsel, does hereby affirm the administrative decisions and reject the appeals filed by Publix. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORmA, AS FOLLOWS: Section 1. Findings of Fact: The City Commission hereby makes the following findings of fact: I. On December 20, 2005, Publix tlled its initial zoning application and letter of intent with the City. Publix claimed the property was a 3.57 acre site for development purposes. Publix stated its intent to develop a 21 story mixed use project with a new supermarket and a 284 unit condominium complex. Publix simultaneously filed an application form requesting transfer of development rights ("TORs") for 85,475 square feet of floor area. Publix subsequently withdrew its application for TORs. 2. On November 1, 2006, Publix filed an amended letter of intent with a revised site plan to the City, but did not include a properly revised zoning application. Publix claimed ownership to a 17.13 acre site for development purposes, and also claimed 13.59 acres of newly submerged land. Publix proposed to develop 378 condominium units, a new supermarket facility and a 140 boat slip/commercial marina. Publix failed to provide the City with a certified survey confirming the property lincs of the alleged submerged land, estimated to be 13.59 acres. 3. On December 7, 2006, Publix filed a site plan application and site plan with the Miami- Dade County Shoreline Development Review Committee ("Shoreline Committee"). Publix claimed to own 5.41 acres for development purposes, which included 3.57 acres of upland and 1.84 acres of submerged land. Publix proposed to build 378 condominium units in addition to the new supermarket facility. However, Publix failed to disclose to the Shoreline Committee that it had previously claimed under oath to the City that the parcel size was 17.13 acres. In addition, Publix failed to disclose to the Shoreline Committee its intent to develop a large commercial marina. 4. On December 12, 2006, Publix requested confirmation of a verbal opinion issued by the City Attorney regarding use of submerged land for density purposes. The submerged land is purportedly located adjacent to the property and neighboring properties. 5. On December 14, 2006, Publix tlled an administrative appeal to the City Manager regarding the City's Attorney's verbal opinion. 6. On December 15, 2006, the City Attorney responded to Publix's letter dated December 12,2006, by advising Publix it could not use the alleged 13.59 acres of submerged land for density/intensity purposes for the development project. 7. On January 8, 2007, Publix was notified by Miami-Dade County that its site plan application failed to comply with the setback requirements set forth in Chapter 33 of the Miami-Dade County Code. Publix did not appeal this decision and has deferred its application before the Shorcline Committee. 8. On March 2, 2007, the City notified Publix that its revised site plan submitted on November I, 2006 failed to comply with the pre-submittal requirements for a site plan applieation under the City's LDRs pursuant to Section 265-18 of the City Code. The City further notified Publix that its 2005 site plan application was null and void under Section 265-11 (1) for failure to act upon staff written comments in the development review report. 9. On April 3, 2007, the City notified Publix that its March 2, 2007, appeal was rejected for fraud pursuant to Section 33-6 of the City Code. 10. On May 3, 2007, I'ublix filed its appeal to City Commission of denial of appeal of administrative decision issued by Community Development Director Robert Solera. II. On Thursday, June 21, 2007, at 6:30 p.m. the City Commission conducted a special hearing to consider Publix's appeals. 12. At the June 21, 2007, public hearing, Publix, through its counsel argued that (I) the appeal of Mr. Solera's decision was timely filed; (2) there was no fraud perpetrated upon the City; and (3) that the denial of the administrative appeal was unlawful. 13. At the June 21, 2007, public hearing, the City Attorney waived the argument that Publix's appeal of Mr. Solera's decision was untimely and waived the argument that Publix failed to follow the appropriate procedures in appealing the City Attorney's verbal opinion. 2 14. The City Attorney requested that the Commission address the substantive merits of Publix's appeals. The City was represented at the public hearing by outside counsel, Ramon Abadin, Esq. IS. All documents offered by the parties, including Publix's appeals, as well as the City's Response to Publix's appeals, wcre accepted and considered in the decision making process for Publix's appeal Section 2. Issues I'resented: 16. The following issues were addressed by the City Commission: (a) Whether the City Commission has jurisdiction at this time to approve Publix's site plan; (b) Whether Publix can use submerged lands outside the legal boundaries of its property for density purposes; and (c) Whether I'ublix violated Section 33-6 of the City Code by submitting radically diffcrent site plans for the same project before the City and Shoreline Committee. Section 3. Conclusions of law The City Commission hereby makes the following conclusions of law: 17. The threshold issue is whether the Commission may approve the site plan application before Publix obtains Shoreline Committee approval. Pursuant to Chapter 33D of the Miami-Dade County Code, the County's Shoreline Committee is responsible for determining whether the planned development is consistent with applicable County or municipal codes. See Sections 33D-34 and 37 of the Miami-Dade County Code. On January S, 2007, Publix was notified by Miami-Dade County that its site plan application was not in compliance with Chapter 33 of the Miami-Dade County Code. Publix never appealed the January Sth decision to the Shoreline Committee, even though the Shoreline Committee must review the proposed development and give its approval before the City may proceed. Moreover, Publix itsclf acknowlcdgcs the City's lack of subject matter jurisdiction, as evidenced by its ccrtification "that the information containcd in this [Shoreline Committec] application is true and correct to the best of my [sic) knowledge that no development action permit or approval shall be issued until a shoreline development review has bcen eompleted or tcrminated." Because the City cannot approve the proposcd site plan application before the Shorclinc Committce gives its approval, Publix's appeal is dcnied. IS. Based on the evidence presented, Publix failcd to comply with the prc-submittal rcquiremcnts for a site plan application under thc City's Land Dcvelopmcnt Regulations ("LDRs") whcn it submitted thc revised site plan. In particular, Publix failed to provide the City's Zoning and Planning Department with (I) site plan application, (2) ownership affidavit, (3) survcy, (4) deed restrictions or covenants, and (5) existing zoning and prior approvals, for thc allcged 17.13 acre site. Moreovcr, I'ublix's 2005 sitc plan application 3 was declared null and void for failure to rcspond to staff comments on a timely basis, in violation of Section 265-11 (1) of the City Code. Thereforc, the administrative decision relating to the rejection of the site plans is hereby affirmed. 19. Publix also claims that the "denial" of its administrative appeal was unlawful. In particular, Publix argues that the legal opinion of the City Attorney violated its rights under the law. However, the legal opinion of the City Attorney is not an administrativc action which is subjected to revicw by the City Managcr under the City Code. The implementation of the legal opinion by the Zoning and I'lanning Staff is considered an administrative action under the City Code. The City Attorney did not reject administratively the site plans filed by Publix. The Zoning and Planning Staff made the administrative decisions. Section 265-22(13) of the City Code provides that "all appeals of administrative actions shall be made to the City Manager, within 14 days of the administrative decision." In order to preserve the issue relating to the use of submerged land, Publix was required to appeal Stcvcn Belden's January 31, 2007, administrative decision, wherein Mr. Belden, thc City's Senior Planner, concluded that the submerged land could not be used for densitylintensity purposes. Because Publix failed to appcal Mr. Belden's administrative decision to the City Manager within fourteen (14) days, the submerged land issue was not properly prcservcd for review. Notwithstanding, the City Commission agreed to address this issue in this appeal. 20. In its appeal of the City Attorney's legal opinion, Publix's argues that submcrged land can bc used for density/intensity purposes. Spccifically, Publix argues that under City Ordinance No. 2004-215, it can use the alleged submerged land for density/intensity purposes. However, under Ordinance No. 2004-215 submerged land could only bc considered part of a "lot area" if it is "enclosed by the exterior boundaries of thc lot." Here, the submerged land is not cstablished by plat and is not part of a "lot area" as that term is defined in Ordinance No. 2004-215 or Section 265-5 of the City Code. Moreovcr, under the City's Future Land Use Map, there is no assignment of density/intensity development use for property designated as "Water" (i.e. submerged land). The alleged submerged land is designated as water in the City Comprehensive Plan. Therefore, it is inconsistent with the City's Comprehensive Plan and LDRs to assign development rights to submerged land where no such rights exist. Additionally, it would violate Florida's growth management requirements to use the alleged submerged land for density/intensity calculations. The expert opinions provided by staff support this conclusion. Thus, because Publix's alleged submerged land is not established within the legal boundary of its property (either by plat or subdivision) it cannot be used for density and floor area purposes. 21. The final issue is whether I'ublix perpetrated a fraud on the City. Section 265-11 of the City Code specifically provides that the City shall have the right to rcly on the accuracy of statements and documentation made in connection with a zoning application. Moreover, Section 33-6 of the City Code imposes cthical obligations upon parties making presentations, formal requests, or petitions to the City and provides that actions taken with respect to such matters shall be voidable if the City discovers that any disclosures were not made fully or truthfully. Here, the record is replete with clear and convincing evidence that Publix knowingly and intentionally: a. misrepresented critical information in connection with its site plan applications to 4 the City and Shoreline Committee; b. failed to disclose to the Shoreline Committee its true intcntion to develop a large commercial marina even though its site plan application was filed one month after I'ublix filed its amended letter of intent with the City, wherein the large commercial marina facility was disclosed; c. misrepresented the exact location and size of its alleged submerged land to the City and Shoreline Committee; d. falsely attested under oath that its representations to the City and Shoreline Committee were "true and correct"; and e. failed to provide a factual basis to explain its conduct before the City and Shoreline Committee. Publix claims it was not required to disclose the large commercial marina to the Shoreline Committee because the City and County requirements are different. However, the County staff emails included in the City's Response confirms that a proposed marina is required to be on the plans submitted to Shoreline Committee. Publix's deliberate misrepresentations (made under oath) go to the essence of the proposed development and subverted the integrity of the development review process. The Commission finds that Publix did not show good cause why it failed to make full and truthful disclosures in connection with its site plan application. Therefore, under Section 33-6 of the City Code, all actions taken with respcct to Publix's site plan application and site plans with the City are null and void. Based upon the foregoing Findings of Fact and Conclusion of Law,' the Commission hereby approves the administrative decisions relating to site plan application filed by Publix and declares the site plan application filed with the City to be null and void. Section 4. Right of Appeal. Publix has a right to appeal this decision pursuant to the applicable Florida Rules of Appellate Procedure in accordance with Section 265-22 of the City Code. Section 5. Effective Date. This Resolution shall become effective upon adoption. PASSED and ADOPTED this 21 Sf day of June, 2007. CITY OF SUNNY ISLES BEACH, FLORIDA By its City Commission ,~ &t/Jv,h!x By: ATTEST: c--S~.~:,~ Jane A. Hines, CMC, City Clerk 5 APPROVED AS TO FORM AND LEG A 'UFEI IENCY: VOTE: Ll-O - \ Mayor Eclelcup -Yes _110 Vice Mayor Thaler _vyes _110 Commissioner I3rezin 0'es no Commissioner Goodman ~yes _no Commissioner Iglesias A\,~yes _no Moved by: VI Q vY\~M..~e Second by: --C,,""'h'\I^^I;'''A 8.R~"2.'tJ' 6