04-27-1995 Public HearingMIAMI SHORES VILLAGE
PUBLIC HEARING & PLANNING & ZONING MEETING
APRIL 27, 1995
• A Public Hearing and the regular Planning & Zoning Meeting took place on Thursday, April 27,
1995, commencing at 6:35 P.M. at the C. Lawton McCall Community Center with the following
members present:
PRESENT: Cliff Walters
Robert Blum
Mark Ulmer
ALSO PRESENT: William Fann
Frank LuBien
Barbara Fugazzi
Lisa Kroboth
ABSENT: Charles Smith
ITEM #1 PUBLIC HEARING
CHANGE OF ZONING, LOT 1 TO 4 INC., BLOCK 79, MIAMI SHORES
SECTION 2, PB 10-37, A/K/A 9701 BISCAYNE BOULEVARD, FROM R-20
(SINGLE FAMILY RESIDENCE) TO PRO (PLANNED RESIDENTIAL
OFFICE).
Mr. Robert Koppen, attorney for the applicant, inquired as to the hearing procedures (gnasi-
judicial versus quasi -legislative). Village Attorney, William Fann, indicated that although the
proceedings would be quasi-judicial, the rules regarding the Administrative Procedure Act would
not apply. Attorney Fann advised Chairman Walters of the format the hearing should take.
Discussion ensued regarding discovery, expert witness testimony, burden of proof, and rules of
evidence, being applied during the hearing. Procedural outlines were drawn with both parties
agreeing to a specific format.
• Attorney Koppen outlined the applicant's request, indicating that the applicant would sign a
Declaration of Restrictive Covenant, limiting PRO use to paragraphs 1 and 2 of the zoning codes
within the PRO category. Attorney Koppen stated that by imposing those limits, the type of
business office would be restricted to professional offices, no retail use would be allowed.
Attorney Koppen called his first witness, Eric Martin. Mr. Martin currently resides at the subject
property, 9701 Biscayne Boulevard. Mr. Martin stated that he had canvassed the surrounding
homes to obtain signatures of homeowners not opposed to the change in zoning. He stated he
had received approximately 35 signatures, and some people stated they were not opposed but
declined to sign a form to that effect. Attorney Koppen wanted the people's names who were not
opposed read into the record. Attorney Farm advised against it. Mr. Ulmer asked if, at the time
the signatures were obtained, the individuals were advised that their names would be read in
public. Mr. Martin stated that the individuals knew why he was obtaining the signatures.
Chairman Walters stated that the information would be on file at the Village Clerk's Office as a
matter of public record. He did not feel it necessary to read them aloud.
• Mr. Koppen called his second witness, Harold Whitten, MAI. Mr. Whitten outlined his
credentials as a real estate appraiser. Mr. Whitten stated that it is his opinion that the change in
zoning would not change the value of surrounding properties. He indicated that his opinion is
based on the location of the property, it being surrounded by a wall, it being fronted on all sides
by roads, making it virtually an island within the area. He further stated that the property is
isolated due to the above characteristics.
Mr. Walters asked Mr. Whitten for his opinion on whether a change in zoning for 9701 Biscayne
Boulevard might create a domino effect, with other properties also requesting a change in zoning.
Mr. Whitten stated he could not speculate on a domino effect. Mr. Walters asked if his opinion
regarding no change in value wasn't speculation. Mr. Whitten stated it was his professional
opinion that if the zoning were changed to PRO for 9701 Biscayne Boulevard, there would be no
corresponding decrease in value for surrounding properties.
Mr. Ulmer inquired as to Mr. Whitten's place of employment. Mr. Whitten stated he works for
The Ernest Jones Company. Mr. Ulmer indicated that there was information in the agenda
package from The Ernest Jones Company, but signed by Mr. Lawrence Pendleton, MAI. Mr.
Ulmer asked whether Mr. Whitten's testimony was a substitution for the letter contained within
the agenda package. Mr. Whitten stated that the testimony was a substitute. Mr. Ulmer then
asked if Mr. Whitten had done an appraisal on the property. Mr. Whitten stated he had not. Mr.
Ulmer asked if it was Mr. Whitten's opinion that the property could not be used as a single family
residence. Mr. Whitten stated that a single family residence use would not be the "highest or best
use" of the property. Mr. Ulmer asked Mr. Whitten if the property could be used as a single
family residence. Mr. Whitten stated it could be used as a single family residence.
Attorney Koppen called his third witness, Dr. Jean -Francois Lejeune, Urban Designer. Dr.
Lejeune stated his credentials for the record. Dr. Lejeune stated his opinion that the property at
9701 Biscayne Boulevard is a strong candidate for PRO zoning. As evidence, he indicated the
general changes of the Boulevard over the last number of years, the erection of barricades within
the area, isolating the property, and the fact that the proposed change would not effect the
neighboring homeowners. He stated that PRO zoning is transitional and highly controlled by the
Planning Board and the Village Council. Mr. Walters questioned Dr. Lejeune's use of the word
transitional. Dr. Lejeune indicated that in this context, he uses transitional in the physical sense
rather than in the functional sense.
Page 2
Mr. Ulmer inquired regarding Dr. Lejeune's opinion on this change being considered spot
zoning. Dr. Lejeune responded that because the property is comprised of one full block, it would
not be considered spot zoning. Dr. Lejeune further stated that he looked at the property as a
whole, i.e. landscaping, type of architecture, etc. Mr. Ulmer asked if, in Dr. Lejeune's opinion, it
was the intent of the Village Council to have the Village be a residential community. Dr.
Lejeune responded that he believed that to be the intent of the Council.
• Those residents in attendance which were not opposed to the rezoning were invited to speak on
behalf of the applicant. The three-minute rule was in effect.
Ben Malter Mr. Malter spoke in favor of the applicant. He stated that the applicant has
good intentions, wants to improve the property.
Eric Martin Mr. Martin indicated that he is presently living at the property to keep
transients away from the property. He further stated that the present
owners do not wish to live at the house.
Attorney Koppen rested his case.
Robert Swarthout, City Planning Consultant, spoke on behalf of Miami Shores Village. Mr.
Swarthout stated that he had authored the Comprehensive Plan and consulted on the Zoning
Codes of the Village. He further stated that it is his belief that the applicant failed to meet the
burden of proof regarding the request for change of zoning. Mr. Swarthout stated that zoning
changes need to be consistent with the Comprehensive Plan. He pointed out that Attorney
Koppen has stated the compatibility of the PRO zoning with the R-20 (Residential) zoning.
However, the Comprehensive Plan states the requirement of consistency, rather than
compatibility.
Mr. Swarthout pointed out that as Policy, as stated in 1.6.1 of the Comprehensive Plan, there is
no provision for mixed use zoning. Mr. Swarthout indicated that it would also be bad policy to
change the zoning for this parcel. He stated that it is the intent of the Comprehensive Plan to
protect and enhance the residential and commercial areas of the Village.
Mr. Swarthout went on to contradict the testimony of expert witnesses which the applicant's
attorney had called, giving opposing views on all points discussed. Attorney Koppen cross-
examined Mr. Swarthout regarding his testimony as it related to the Comprehensive Plan and the
subsequent change in circumstances regarding Biscayne Boulevard in general, and 9701
Biscayne Boulevard in particular.
Those residents in attendance which are opposed to the change in zoning were invited to speak.
The three-minute rule was in effect.
Page 3
R. Jollivette Frazier Ms. Frazier stated that she had moved to Miami Shores Village and
the neighborhood in question, specifically because of the strict
zoning laws and the residential quality of the Village. She stated
her belief that it is an insincere ploy on behalf of the applicant
regarding the restrictive covenant and urged the Board to deny with
prejudice.
410 James Guinnessey Mr. Guinnessey stated he was against the rezoning, indicating he
had witnessed bad zoning in other areas. He expressed his desire
for the Board to keep its integrity intact.
Sid Reese
John Bergacker
Mr. Reese stated that he is a life-long resident of Miami Shores and
is building a home at 9655 Biscayne Boulevard, directly south of
the subject property. He stated he intends to live in the house he is
currently building and does not understand his neighbors
reluctance to live at the address.
Mr. Bergacker stated his belief that there is no need for further
professional office space in Miami Shores Village, as there are
openings in the existing buildings currently zoned for business.
Discussed previous referendum to rezone which was voted down
by the residents. He also cited the lack of proof regarding meeting
the hardship criteria.
Attorney Koppen summarized his case, stating the home is no longer acceptable to be used as a
residence due to the change in circumstances on Biscayne Boulevard.
Attorney Fann stated that the applicant failed to prove that the zoning would be consistent with
the Comprehensive Plan and suggested that the Board deny the request for rezoning.
Mr. Ulmer moved to deny the applicants request for change of zoning from R-20 to PRO. Mr.
Blum seconded the motion. Mr. Ulmer stated that the applicant had not established a prima facie
case that the requested zoning would be consistent with the Village's comprehensive zoning plan.
To the contrary, the evidence presented by the applicant established that the comprehensive plan
calls for residential use of the property and that the requested rezoning was primarily for office
use which would be inconsistent with the comprehensive plan. Mr. Ulmer further stated that
even if the applicant had presented a prima facie case, the evidence clearly and convincingly
established that the Village's comprehensive plan seeks to preserve the residential character of
Miami Shores and that the restrictions of the current zoning applicable to property of the
applicant are necessary for that purpose and that the application of those restrictions would not
constitute a "taking" of the applicant's property for public use. The vote was taken and was
unanimous in favor of denying the application to rezone.
Page 4
•
A five minute recess was called at this time (8:40 P.M.)
Meeting resumed at 8:50 P.M.
ITEM #2 MINUTES
Mr. Ulmer moved to approve the minutes of the March 23, 1995 Planning & Zoning Meeting as
submitted. Mr. Blum seconded the motion and the vote was unanimous.
ITEM #3 REQUEST FOR APPROVAL OF VARIANCE TO PERMIT TOW AWAY
SIGN.
Ronald D. Segala 421 Grand Concourse
Mr. Walters asked Mr. LuBien if this agenda item was routine in nature. Mr. LuBien stated that
it was for a variance which would ultimately need Council approval. Mr. Fann stated that as Mr.
Segala was not present at this time during the meeting, the item be tabled. Mr. Ulmer moved to
table this item to the next scheduled meeting. Mr. Blum seconded the motion and the vote was
unanimous in favor.
ITEM #4 REQUEST FOR APPROVAL OF VARIANCE TO PERMIT RE -ROOFING
WITH HAND SPLIT CEDAR SHAKES.
Charles W. Smith 21 N.W. 101st Street
Mr. Walters asked Mr. LuBien if this agenda item was routine in nature. Mr. LuBien stated that
it was for a variance which would ultimately need Council approval. Mr. Fann stated that as Mr.
Smith was not present at the meeting, Item #4, as was the case in Item #3, should be tabled. Mr.
Ulmer moved to table this item to the next scheduled meeting. Mr. Blum seconded the motion
and the vote was unanimous in favor.
ITEM #5 REQUEST FOR APPROVAL OF CHANGING 8' CBS BLOCK WALL TO 8'
CHAIN LINK FENCE AT REAR YARD
Metro -Dade Fire Department Steven Bayer 9500 N.E. 2nd Avenue
Mr. Steven Bayer, Project Manager for the fire station project was present as the applicant. Mr.
Bayer indicated the desire to substitute the planned concrete wall with a chain link fence along
the rear of the property. He stated that the chain link fence would provide more safety than the
concrete wall as no one could hide behind it. Additionally he stated that the concrete wall could
• attract graffiti. Mr. Bayer indicated that hedges would be planted on the inside perimeter of the
chain link fence. Mr. Blum asked if this was a request to amend the site plan. Mr. Fann stated
that in essence, it was a request to amend the site plan. Mr. Blum and Mr. Walters expressed
their concerns regarding making the proposed change in fencing and did not feel it appropriate to
use chain link on this particular parcel. Mr. Blum moved to deny the request. Mr. Ulmer
seconded the motion and the vote was unanimous in favor.
Page 5
Mr. Walters announced that he would be unable to attend the May 11, 1995 meeting. Mr. Ulmer
also stated he would be unable to attend the May 11, meeting. Therefore, due to the lack of a
quorum for the May 11, 1995, meeting, the next meeting of the Planning & Zoning Board will
take place on Thursday, May 25, 1995 at 630 P.M.
ITEM #6 ADJOURNMENT
The Planning & Zoning Meeting of April 27, 1995 was adjourned at 9:05 P.M.
ait,,� /''
:C:(,i/1L/1 CJ . f' 4' '.f
Barbara, A. Fugazzi, Villag Clef/le
Page 6