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HomeMy WebLinkAbout2007 0621 Special City Commission Meeting SUMMARY MINUTES Special City Commission Meeting Thursday, June 21, 2007, 6:30 p.m. City of Sunny Isles Beach, Florida A TTENTION ALL LOBBYISTS: CITY LAW REQUIRES YOUR REGISTRATION PRIOR TO ENGAGING IN LOBBYING ACTIVITIES BEFORE CITY STAFF, BOARDS, COMMITTEES OR THE CITY COMMISSION. PLEASE CONTACT THE CITY CLERK FOR FORMS AND ADDITIONAL INFORMATION. AGENDA 1. CALL TO ORDER / ROLL CALL OF MEMBERS The meeting was called to order by Mayor Ede1cup at 6:32 p.m., with the following officials present: Mayor Norman S. Edelcup Vice Mayor Lewis J. Thaler Commissioner Roslyn Brezin Commissioner Gerry Goodman Commissioner Danny Iglesias - Absent City Manager A. John Szerlag City Attorney Hans Ottinot City Clerk Jane A. Hines, CMC Assistant City Manager Jorge Vera Mayor Edelcup gave opening remarks stating that the City Commission will address the administrative appeals filed by Publix Supermarkets, Inc., relating to several administrative decisions made by staff. He stated the following general rules will govern these proceedings and the conduct of the parties: both parties will be provided with ten (10) minutes to present their arguments; staff will present its argument first, Publix will be permitted to present its argument after staff; and after the parties have presented their arguments, ten (10) minutes will be provided for public comments. The City Commission will make its decision after public comments. The Mayor asked City Clerk Hines to keep time and announce when time has run out for each of those 10-minute intervals. Mayor Ede1cup said that the following issues will be heard by the City Commission tonight: 1) whether Publix Supermarket perpetrated a fraud on the City by claiming it owns 17.13 acres for development purposes in a site plan filed with the City while claiming that it owned 5.41 acres for development purposes in a site plan filed with the County for the same development project. The burden is on Publix to demonstrate that its conduct and the representations were truthful. If Publix fails to meet its burden, the City Commission will find that Publix has violated Section 33-6 of the City Code which requires truthful disclosures in zoning matters; 2) whether the City has jurisdiction over Publix zoning application at this time; and 3) whether the City Code allows submerged lands abutting the Publix property to be included for purposes of calculations for residential density. Summary Minutes: Special City Commission Meeting June 21,2007 Sunny Isles Beach, Florida City Attorney Ottinot said that we will reserve 3-minutes for rebuttal and the presentation will be done by his Co-Counsel Ray Abadin. Public Speakers: Ray Abadin, Esq; Clifford Schulman, Esq.; Bud Scholl 2. HEAR APPEAL 2A. Hear an appeal filed by Publix Supermarkets, Inc. challenging Administrative Decisions relating to its Site Plan Application. [City Clerk's Note: The City submitted into the record the following documents: (1) Response to Administrative Appeal filed by Publix Supermarkets, Inc. including Exhibits "A " through" U" and (2) Timeline of Administrative Appeals.] 1. Presentation bv Rav Abadin. ESQ.. of Abadin Cook. Action: Ray Abadin, Esq., represented the City of Sunny Isles Beach on this appeal. Mr. Abadin requested that the City Commission uphold the staff administrative decisions because those decisions are consistent with the City's Code and the law. Mr. Abadin submitted a Response on behalf the City supporting his arguments. Mr. Abadin addressed the issues as follows: 1) jurisdiction; 2) the Code; and 3) issues with the applications.. Publix requests that the City approve its site plan application before the County Shoreline Development Review Committee has completed its review. The law does not permit this. According to the Miami-Dade County Code Section 33-D, the Shoreline Committee must complete its review before the City makes any decision on the proposed site plan. In its site plan application, (attached as Exhibit "A" to the City's Response), Publix concedes on the bottom of the application that no development action or permit approval shall be issued until the Shoreline Committee has completed its investigation. The site plan application was signed by counsel for Publix. The Commission should deny the appeal because the Shoreline Committee hasn't yet completed its review, and also because Publix has asked the Shoreline Committee to defer its review. The second issue is whether Publix can use submerged lands for density purposes. Mr. Abadin confirmed that the City Attorney, City staff and consultants hired by the City all concluded that submerged land cannot be used for density and intensity purposes because the City Code does not permit it. Additionally, it would violate the City's Comprehensive Plan to do so. Mr. Abadin noted that the submerged land is not platted anywhere on any documentation presented by Publix. The third issue is how the City Commission will review and decide the various inconsistencies in the Site Plan applications filed with the City and the Shoreline Committee. Mr. Abadin said that when the City Commission adopted its Zoning Code, it created a Development Review Process whereby the land owner has an obligation to provide correct and truthful information to staff so they can determine whether the land owner is entitled to develop the property pursuant to the City Code. Zoning approval by the City Commission depends upon truthful information in zoning applications. When a 2 Summary Minutes: Special City Commission Meeting June 21, 2007 Sunny Isles Beach, Florida property owner fails to provide truthful and accurate information, staff is unable to properly review the site plan and protect the citizens ofthis community. Based upon the applications filed by Publix, it is clear they misrepresented the size of the development parcel submitted for approval. For example, in its initial application to the City, Publix represented the size of the property for development purposes to be 3.57 acres (attached as Exhibit "B" to the City's Response). However, Publix later claimed to own a parcel size of 17.13 acres, which included 3.57 upland, and 13.59 of submerged lands. The submerged lands were purchased by Publix after the initial application, and were part of revision to include a 140 slip marina (attached as Exhibit "D" and "K" to the City's Response). During this same period, Publix submitted another site application to the Shoreline Committee, and attested under oath that the parcel size for development purposes was 5.41 acres, which included 3.57 acres of upland and 1.84 acres of submerged land. However, the application to the Shoreline Committee contains no mention at all of a marina or of the 13.59 acres of submerged land (attached as Exhibit "L" to the City's Response). In its appeal, Publix claims they were not required to disclose the marina to the Shoreline Committee. However, as shown in Exhibit "L", the emails confirm the marina is required to be included in addition to the submerged land. The inconsistent applications filed by Publix clearly show an attempt to hide Publix' s plan to build a much larger structure on 3.57 acres. It also shows an attempt by Publix to prevent the City Commission, staff and the City Attorney from making an informed decision. The City Code does not permit such conduct and the Commission should not allow it. 2. Presentation bv Publix Supermarkets. Inc. [City Clerk's Note: Mr. Schulman submitted into the record its Appeal to City Commission dated May 3, 2007, along with all attachments. Mr. Schulman also submitted into the record the following documents: Westlaw-Metropolitan Dade County v. Florida Processing Company; Westlaw-Cherry Communications, Inc. v. Deason; Westlaw-Ford v. Bay County School Board; Email from Javier F Avino dated March 16, 2007 to Hans Ottinot, Jorge Vera, Elena Del Campillo, Robert Solera, Steve Belden, Jasmine Barnes, Jane Hines, and John Szerlag re: Site Plan Application Z2005-09 with attachments; and Copy of Check No. 009232from Greenberg Traurig in the amount of $3,000.00 for the Administrative Appeal, and a copy of a letter from Clifford Schulman, Esq. dated March 16, 2007 regarding the Appeal of Administrative Decision with attachments.) Action: Clifford Schulman, Esq., representing Publix, objected to the short period of time of 10 minutes. He said they would incorporate into the record everything included in their appeal letter dated May 3, 2007, including all the exhibits. Mr. Schulman asked the Commission to take official notice of the legal proceedings in "Publix vs. Sunny Isles Beach Case No. 0701659 CA-15", filed in the Circuit Court. Mr. Schulman objected to the City Attorney sitting in on this matter as a matter of law. According to Mr. Schulman, the appeal concerns a letter written by the City Attorney and 3 Summary Minutes: Special City Commission Meeting June 21,2007 Sunny Isles Beach, Florida has nothing to do with what the Commission just heard. The only issue is the April 3, 2007, letter from the City Attorney stating that Publix cannot appeal to the Commission because their application was untimely and fraudulent. Mr. Schulman claimed the City Attorney cannot be impartial in this matter, and cited to the Florida Supreme Court's decisions in Ford vs. City oj Lakeland and Cherry Communications, Inc. vs. Deason. According to Mr. Schulman, those cases support the argument that the City Attorney cannot simultaneously serve as an impartial advisor to the Commission and as a prosecutor. Mr. Schulman stated that having special counsel does not cure the problem. Mr. Schulman requested that the Commission defer this matter until a Special Assistant City Attorney is appointed. Mr. Schulman's appeal concerned the administrative decision of Community Development Director Robert Solera. The City Attorney responded to Mr. Schulman's appeal by stating the decision could not be appealed because it was untimely and also because ofPublix's fraud on the City. Mr. Schulman stated the appeal of Mr. Solera's decision was timely, and that he was prepared to proffer the testimony of Peter Rodriguez his paralegal, who would testify that he delivered the appeal by hand delivery at 4:45 p.m. on March 16, 2007. Mr. Schulman claimed that the appeal was stamped by the City on March 16,2007. Additionally, the appeal was emailed by his associate, Javier A vino, to John Szerlag, Jane Hines, Hans Ottinot, Robert Solera, Elena Del Campillo, and Steve Belden on the same day and at approximately the same time. Mr. Schulman stated that since no counter argument was made by the City in its presentation, the timeliness issue should be considered waived. Next, Mr. Schulman claimed that the City Attorney had no right to write his letter. Accordingly to Mr. Schulman, only the City Manager had authority over Publix's appeal ofMr. Solera's decision. Mr. Schulman argued that the City Attorney's rejection of their appeal was unlawful and that it should have been properly brought before the Commission. Mr. Schulman stated he has appeared before the Commission for almost 10-years and this is the first time in his 33-year career that anyone has accused him of fraud or unethical behavior. Mr. Schulman claimed that the appeal could not be rejected for fraud because there is no evidence that Publix misrepresented anything in its application to the City. Mr. Schulman stated that Publix owned 17.16 acres, portions of which are submerged and portions of which are not, and that the City has not refuted this claim. Mr. Schulman claimed that the City was given a title policy and a deed, confirming ownership of the 17.16 acres of submerged land and upland. Mr. Schulman also stated they informed the City of their intention to build 378 condominium units, a 42,000 square foot Publix facility, and a FAR ("floor area ratio") of 4.0, and that nobody claimed this information was incorrect. Mr. Schulman further claimed that they provided the same deed and title policy to the City and County, confirming ownership ofthe land. Mr. Schulman claimed that Section 33-6 ofthe City Code does not apply because there was no misrepresentation to the City. 4 Summary Minutes: Special City Commission Meeting June 21, 2007 Sunny Isles Beach, Florida Mr. Schulman claimed they were not required to disclose the marina in its application to the Shoreline Committee. Mr. Schulman claimed they provided the County with the upland and submerged land needed to maintain their FAR. According to Mr. Schulman, they wanted to bifurcate their application, intending to go back to the Shoreline Committee at a later date before building the marina. Mr. Schulman claimed they provided the County with the same deed confirming ownership of the 17 acres of upland and submerged land. Mr. Schulman said they filed an appeal that was timely, and the City has no authority to deny this application or deny their appeal based on Section 33-6 of the Code. Mr. Schulman requested that the Commission find that Publix's appeal was timely filed and that no fraud was committed on the City. According to Mr. Schulman, this would allow Publix to appear before the Commission at a later date and challenge Mr. Solera's decision that Publix did not provide sufficient information in its application. 3. Public Comment. Action: Bud Scholl appeared at the hearing and provided public comment. Mr. Scholl said he came to the last meeting on this issue and thought this was a straightforward issue. Mr. Scholl expressed his opinion that counsel for Publix was unfairly abstracting the City's rules. Mr. Scholl stated he was very surprised to hear that Publix, operating in this community for 30-40 years, and planning on operating for another 40-50 years, would come into the community, abstract our ordinances, hire the best legal talent in town, and then go about their business. Mr. Scholl said he finds it very hypocritical that Publix would try to disadvantage the same community they plan on doing business with. Mr. Scholl said the community will demonstrate to Publix that what they are trying to do will not be tolerated. Mr. Scholl further claimed he would organize community leaders and attempt to boycott Publix. Mr. Scholl said he would also encourage City staff to look at every available sanction to impose on Publix. Mr. Scholl urged the Commission to hold the line on this issue. 4. Rebuttal bv City Attornev Hans Ottinot. Action: City Attorney Hans Ottinot stated that the procedure for appealing an administrative decision is very clear. In terms of zoning matters, an applicant can appeal an administrative decision of a staff member under the City Manager, but not an opinion of the City Attorney. City Attorney Ottinot stated that he is the City Attorney for the City Manager and also the City Commission. According to City Attorney Ottinot, Mr. Schulman erroneously appealed his verbal legal opinion, and that this is not authorized under the City Code. City Attorney Ottinot stated that if Mr. Schulman wanted to properly appeal the administrative decision of zoning staff in this matter, he should have appealed the administrative decision of Steven Belden. City Attorney Ottinot stated that Mr. Schulman never appealed Mr. Belden's administrative decision. City Attorney Ottinot stated that he would waive the timeliness argument and allow Publix to present its entire appeal, including Publix's appeal of his legal opinion, and its appeal of Robert Solera's administrative decision. 5 Summary Minutes: Special City Commission Meeting June 21, 2007 Sunny Isles Beach, Florida City Attorney Ottinot stated that Mr. Schulman is essentially requesting that the Commission violate the City's Code and Comprehensive Plan. City Attorney Ottinot also stated that although Publix claimed ownership of approximately 13 acres of submerged land, they never provided the City or County with a survey confirming ownership; moreover, Publix never provided the County with verification of their claimed ownership of 1.84 acres. City Attorney Ottinot stated that as the attorney for the City Commission and City staff, he has the right to provide legal advice. In conclusion, City Attorney Ottinot requested that the Commission uphold the administrative staff decisions. 5. DiscussionlDecision of City Commission. Action: Commissioner Goodman stated that Publix applied for a permit to build on 3.57 acres and should be bound by its original plan. Commissioner Goodman stated that he is bound by the City's rules as set forth in its zoning code, and guided by the City Attorney. Commissioner Goodman stated he did not see any way the Commission could give Publix submerged land at the present time. Vice Mayor Thaler raised the issue of conflicting evidence as to whether or not the appeal was timely filed. City Attorney Ottinot responded by stating that the timeliness issue was waived, and that the substantive merits of the appeal should be addressed, including Publix's appeal of his verbal opinion and ofMr. Solera's decision. Commissioner Brezin stated that Publix has not provided the City with any infomiation confirming ownership of the 17.13 acres of land. Commissioner Brezin reiterated that Publix initially claimed to own 3.57 acres ofland, but then later claimed to own 17.13 acres for development purposes, including 13.59 acres of newly acquired submerged land. Commissioner Brezin questioned whether the submerged land was platted. In response, Mr. Schulman stated that Publix amended their application with the City to denote the newly acquired land, and provided the City with a deed confirming ownership. Mr. Schulman further claimed that Publix provided the City with a title commitment and title opinion from a title company. Mr. Schulman stated that although it is not platted land it should be considered to be owned by Publix for density and intensity calculations. Mr. Schulman stated that platting of land was not essential under the City Code as it existed before the City amended its Code. Mr. Schulman stated that the land was purchased in good faith with the recognition that the City Code, at that point in time, allowed a certain transfer of density from the submerged land to the upland, not to exceed 4.0 FAR. Mr. Schulman stated that the City has never shown any evidence that Publix does not own the claimed land. Commissioner Brezin requested that City Attorney Ottinot address this issue for clarification. City Attorney Ottinot confirmed that Publix provided the City with a deed; however, in order to properly determine the size and location of property, a legal survey is required. City Attorney Ottinot stated that Publix never provided a legal survey to the City or County confirming ownership of the submerged land. City Attorney Ottinot also noted that while Publix claimed to provide the same deed to the City and County, there are 6 Summary Minutes: Special City Commission Meeting June 21, 2007 Sunny Isles Beach, Florida major inconsistencies with regards to the size of the claimed submerged land. In particular, Publix claimed to own 5.4 acres with the County, but 17.1 acres with the City. Commissioner Brezin reiterated the issue oflack of survey to confirm ownership of the submerged land. City Attorney Ottinot confirmed this is one issue, and second, the City Code has never permitted submerged land not within a platted lot to be used for density purposes. City Attorney Ottinot concluded that Publix essentially claims to own the submerged land abutting all the way to the Golden Shores neighborhood, but failed to provide a survey confirming ownership. Mayor Edelcup commented that the main issue concerns the submerged land. Mayor Edelcup remarked that Publix, through its attorney Cliff Schulman, initially raised this issue over two years ago, when they had discussions with the City and were represented by Publix staff and Stiles. At that time, the City expressed an interest in having a roadway through the site, and in exchange the City would provide Publix with a height adjustment for the site which would more than compensate Publix for the loss of land, in the way of FAR. Mayor Edelcup commented that things were going smoothly at that point, but then things changed when Publix, Stiles, and their attorney attempted to maximize their position by claiming certain things and then buying the submerged land. By way of background, Mayor Ede1cup noted that the Commission passed an Ordinance a few years ago expressing an intent that any submerged land that had eroded from a piece of platted land would be credited to the landowner. However, Mayor Edelcup stated that it was never the intent of the Commission to encompass submerged lands that were not platted. Mayor Edelcup said it is apparent that the strategy of Pub Ii x and its attorney is to confuse everyone by claiming that the Commission changed the zoning law. Mayor Edelcup stated that the zoning law was never changed; rather, there was a question of interpretation and the Commission more fully expressed its intent in passing the original zoning law. Mayor Edelcup confirmed that the Commission is not in a position to grant density where there is none and allow greed an opportunity to flourish. Mayor Edelcup stated that if Publix is such a good corporate citizen as they claim, they should follow the laws and ordinances ofthe City. Mayor Edelcup commented that Publix instead decided to roll the dice and see what would happen, and that is why everybody is here today. Mayor Edelcup commented that Publix compounded matters by filing an application with the City that differed from the one filed with the Shoreline Committee. Mayor Edelcup questioned Mr. Schulman's statement that they filed the application knowing they would come back and amend it, and commented that ifPublix already knew what they wanted to do, why didn't they file it right the first time around? Mayor Edelcup stated this it perhaps an indication of a bait and switch tactic played on the City and Shoreline Committee. Mayor Edelcup stated that the City was first shown a project with 3.57 acres of upland with no submerged land, with overwhelming support by the community to move forward on that kind of a project. Mayor Edelcup stated that Publix instead chose to see if they could get more by trying to take submerged, unplatted land in the middle of Dumbfounding Bay surrounding not only Publix but all neighboring properties, including private homes in Golden Shores. Mayor Edelcup said the Commission would best be served by ruling that submerged lands should not be counted. Mayor Edelcup stated there has been an attempt to confuse this 7 Summary Minutes: Special City Commission Meeting June 21, 2007 Sunny Isles Beach, Florida Commission and the Shoreline Committee given that no two documents filed with these two agencies match side by side or parallel. Mayor Edelcup said there was no attempt to withdraw and correct the documents and they stand for themselves as filed. Mayor Edelcup also stated that the Shoreline Committee takes precedence on any issue before the Commission and that the Commission would not be following the law by issuing an opinion before the Shoreline Committee did. Mayor Edelcup stated that the Commission had no choice but support the decisions on all three (3) issues. Mayor Ede1cup commented that this case will continue because it is apparent that Publix will attempt to defy the will of the City and its people who do not want to see the City's Comprehensive Plan increase in density. Mr. Ottinot stated that the Commission needed a motion upholding all staff decisions with respect to the three issues outlined by Mayor Edelcup. 3. RESOLUTIONS 3A. 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 Publix Supermarkets, Inc. and Rejecting the Appeals Filed by Publix; Providing for Findings of Fact; Providing for Conclusions of Law; Providing for the Right of Appeal; Providing for an Effective Date. Vice Mayor Thaler moved and Commissioner Brezin seconded a motion upholding all staff decisions. Resolution No. 2007-1105 was approved by a roll call vote of 4-0-1 (Commissioner Iglesias absent) in favor. V ote: Commissioner Brezin yes Commissioner Goodman yes Commissioner Iglesias absent Vice Mayor Thaler yes Mayor Edelcup yes 4. ADJOURNMENT Mayor Ede1cup adjourned the meeting at 7:21 p.m. . i.. 6.'... ~.. Respectfully submitted by: , ~< ~A ~ J~ Hines, C.t:vf~, City Clerk ( . Approved by the City Commission on July 19,2007 " ~ 8