exhibit b - appendix to brief

EXHIBIT B

MOTION FOR LEAVE TO FILE AMICUS CURAE BRIEF IN RESPONSE TO WALMART STORES EAST LPS MOTION TO EXPEDITE DECISION ON PETITION FOR WRIT OF CERTIORARI

APPENDIX TO

AMICUS CURATE BRIEF OF GRANT STERN SUPPORTING

PETITIONERS JACOB PFEFFER, ET. AL.

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MIAMI-DADE COUNTY COURT REPORTERS, INC. (305) 373-5600

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CITY OF MIAMI

City Hall3500 Pan American Drive

Miami, FL 33133Commission Chambers

Thursday, November 20, 2014

PZ.10Class II Appeal - 3055 North Miami Avenue

Commission

Wilfredo Gort, ChairmanKeon Hardemon, Vice Chair

Marc SarnoffFrank Carollo

Francis Suarez

City Attorney's Office

Victoria Mendez, City Attorney

On behalf of the Appellants

Paul Savage, Esq.

Grant SternCover Sheet of Petitioners Exhibit B For Reference

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CITIZENS' BILL OF RIGHTS

(A). This government has been created to protect the governed, not the governing. In order to provide the public with full and accurate information, to promote efficient administrative management, to make government more accountable, and to insure to all persons fair and equitable treatment, the following rights are guaranteed:

1. Convenient Access. Every person has the right to transact business with the County and the municipalities with a minimum of personal inconvenience. It shall be the duty of the Mayor and the Commission to provide, within the Countys budget limitations, reasonably convenient times and places for registration and voting, for required inspections, and for transacting business with the County.

2. Truth in Government. No County or municipal official or employee shall knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the public.

3. Public Records. All audits, reports, minutes, documents and other public records of the County and the municipalities and their boards, agencies, departments and authorities shall be open for inspection at reasonable times and places convenient to the public.

4. Minutes and Ordinance Register. The Clerk of the Commission and of each municipal council shall maintain and make available for public inspection an ordinance register separate from the minutes showing the votes of each member on all ordinances and resolutions listed by descriptive title. Written minutes of all meetings and the ordinance register shall be available for public inspection not later than 30 days after the conclusion of the meeting.

5. Right to be Heard. So far as the orderly conduct of public business permits, any interested person has the right to appear before the Commission or any municipal council or any County or municipal agency, board or department for the presentation, adjustment or determination of an issue, request or controversy within the jurisdiction of the governmental entity involved; provided, nothing herein shall prohibit the Commission or any municipal council from referring a matter to a committee of each of their respective

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bodies to conduct a public hearing, unless prohibited by law. Matters shall be scheduled for the convenience of the public, and the agenda shall be divided into approximate time periods so that the public may know approximately when a matter will be heard. Nothing herein shall prohibit any governmental entity or agency from imposing reasonable time limits for the presentation of a matter.

6. Right to Notice. Persons entitled to notice of a County or municipal hearing shall be timely informed as to the time, place and nature of the hearing and the legal authority pursuant to which the hearing is to be held. Failure by an individual to receive such notice shall not constitute mandatory grounds for cancelling the hearing or rendering invalid any determination made at such hearing. Copies of proposed ordinances or resolutions shall be made available at a reasonable time prior to the hearing, unless the matter involves an emergency ordinance or resolution.

7. No Unreasonable Postponements. No matter once having been placed on a formal agenda by the County or any municipality shall be postponed to another day except for good cause shown in the opinion of the County Commission, the municipal council or other governmental entity or agency conducting such meeting, and then only on condition that any person so requesting is mailed adequate notice of the new date of any postponed meeting. Failure by an individual to receive such notice shall not constitute mandatory grounds for cancelling the hearing or rendering invalid any determination made at such hearing.

8. Right to Public Hearing. Upon a timely request of any interested party a public hearing shall be held by any County or municipal agency, board, department or authority upon any significant policy decision to be issued by it which is not subject to subsequent administrative or legislative review and hearing. This provision shall not apply to the Law Department of the County or of any municipality, nor to any body whose duties and responsibilities are solely advisory. At any zoning or other hearing in which review is exclusively by certiorari, a party or his counsel shall be entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The decision of any such agency, board,

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department or authority must be based upon the facts in the record. Procedural rules establishing reasonable time and other limitations may be promulgated and amended from time to time.

9. Notice of Actions and Reasons. Prompt notice shall be given of the denial in whole or in part of a request of an interested person made in connection with any County or municipal administrative decision or proceeding when the decision is reserved at the conclusion of the hearing. The notice shall be accompanied by a statement of the grounds for denial.

10. Mayors, City Managers and Attorneys Reports. The County Mayor and County Attorney and each City Manager and City Attorney shall periodically make a public status report on all major matters pending or concluded within their respective jurisdictions.

11. Budgeting. In addition to any budget required by state statute, the County Mayor shall prepare a budget showing the cost of each program for each budget year. Prior to the County Commissions first public hearing on the proposed budget required by state law, the County Mayor shall make public a budget summary setting forth the proposed cost of each individual program and reflecting all major proposed increases and decreases in funds and personnel for each program, the purposes therefore, the estimated millage cost of each program and the amount of any contingency and carryover funds for each program.

12. Quarterly Budget Comparisons. The County Mayor shall make public a quarterly report showing the actual expenditures during the quarter just ended against one quarter of the proposed annual expenditures set forth in the budget. Such report shall also reflect the same cumulative information for whatever portion of the fiscal year that has elapsed.

13. Adequate Audits. An annual audit of the County and each municipality shall be made by an independent certified public accounting firm in accordance with generally accepted auditing standards. A summary of the results, including any deficiencies found, shall be made public. In making such audit, proprietary functions shall be audited separately and adequate depreciation on proprietary facilities shall be accrued so the public may determine the amount of any direct or indirect subsidy.

Meeting Minutes November 21, 2013City Commission

something was manufactured or who had green roots. The whole thing would come down to who

presented credible testimony that demonstrates that Wal-Mart, as of right, had the ability to go in

there. And having had the ability to go through this hearing and see the presentations , in my

mind, it is clear that, based on the credible evidence presented before this Commission today,

Wal-Mart has demonstrated that it does fit within the open Class II permit, and we should deny

this appeal. So I'm going to pass the gavel to Commissioner Gort. I'm going to make a motion

to deny the appeal and uphold the Class II permit.

Commissioner Carollo: Second.

Vice Chair Gort: There's a motion. There's a second. I think the Planning director would like to

make some statements.

Chair Sarnoff: I'm sorry; I was supposed to let you -- no? No?

Mr. Garcia: No, Commissioner, but --

Mr. Gibbs: Mr. Chairman, can -- I'd like to object for the record. Mr. Garcia is going to speak.

He will be speaking almost in surrebuttal. The public hearing should be reopened after Mr.

Garcia speaks -

Vice Chair Gort: Okay.

Mr. Gibbs: -- to allow --

Vice Chair Gort: Thank you. Yeah.

Mr. Gibbs: -- for public comment.

Vice Chair Gort: Okay, thank you.

Mr. Gibbs: I'm just putting it -

Vice Chair Gort: Okay.

Mr. Gibbs: -- on the record.

Vice Chair Gort: Fine. There's a motion and there's a second. All in favor, state it by saying

aye.

The Commission (Collectively): Aye.

Vice Chair Gort: Thank you.

Applause.

Chair Sarnoff: Okay, I'm going to ask you all to file out as quickly as possible.

END OF PLANNING AND ZONING ITEMS

ADJOURNMENT

The meeting adjourned at 10:26 p.m.

Page 78City of Miami Printed on 12/18/2013

Grant SternFootnote 3

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Class II permit as modified to reflect

three loading berths, in compliance with

the City code and zoning ordinance and the

decision of the circuit court sitting in

its appellate capacity.

CHAIRMAN GORT: Second.

VICE CHAIR HARDEMON: And to clarify,

for the record, so we have a motion to

deny the appeal and affirm the Class II

permit; is that correct?

Yes.

And I'm -- I'll yield to you, sir,

please.

MR. GARCIA: Thank you for allowing

me to make a brief statement. And I think

it is important, and perhaps appropriate,

to hopefully clarify something that may be

confusing. And it is this.

I, as your Planning and Zoning

Director, stand corrected by the court. I

want to assure this Commission that the

mistake made by your Planning and Zoning

Department is not to have overlooked a

variance. That is a rather significant

issue. And I'm here to tell you that has

Grant SternPETITIONERS Exhibit B 82

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never happened and it will never happen,

at least under my watch. I'm positive of

that.

The reason we stand corrected is,

because this court has found that a

longstanding interpretation of the code,

which says that the language in Section

627.2.15 Off-Street Loading, which says

for nonresidential floor area up to

250,000 square feet, 3 berths total.

I'm humbled. I, my predecessors, had

always opined that that meant three was a

minimum, and we could certainly exceed it.

It turns out, as the court says, that the

plain meaning of the word total makes it

so that it cannot be interpreted

reasonably as being more than three. We

stand corrected. We're humbled by it.

I'm here to tell you, though, and

this is the important thing, that had this

been correctly interpreted to mean that

only three loading berths were required,

you would have had before you, one year

ago, exactly the project that you are

affirming today. That's all I have.


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MR. STERN: The public record, as I

understand it, is reopened after he

speaks?

VICE CHAIR HARDEMON: Sir, I will not

-- I will not allow you to speak. You're

not recognized at this time.

MR. STERN: Yes, sir.

VICE CHAIR HARDEMON: The public

hearing has been closed. Right now we're

on a matter of discussion for the

Commissioners to consider whether they

will vote yea or nay.

Commissioners.

No further -- I think the question

has been called.

COMMISSIONER SUAREZ: I think

Francisco just -- you know, that was

actually the most poignant statement you

made the whole entire tire.

VICE CHAIR HARDEMON: It was

beautiful, but that's what the courts are

for, but the question has been called.

City Clerk.

THE CLERK: Would you like to call

the question or a roll call?


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VICE CHAIR HARDEMON: The question

was called.

COMMISSIONER SUAREZ: He wants a roll

call.

VICE CHAIR HARDEMON: It was called

by Commissioner -- needs a roll call vote.

THE CLERK: Sure.

Commissioner Sarnoff?

COMMISSIONER SARNOFF: Yes.

THE CLERK: Commissioner Hardemon --

or Vice Chair Hardemon?

VICE CHAIRMAN HARDEMON: For.

THE CLERK: Chair Gort?

CHAIRMAN GORT: Yes.

THE CLERK: Commissioner Suarez?

COMMISSIONER SUAREZ: Yes.

THE CLERK: And Commissioner Carollo?

COMMISSIONER CAROLLO: Yes.

THE CLERK: The resolution passes

5/0.

VICE CHAIR HARDEMON: Meeting

adjourned.

(Thereupon, at 9:06 p.m., the meeting

was adjourned).


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Citys long-standing interpretation of Section 627.2.15 of the Code, allowed the

Project to contain five (5) loading berths instead of three (3). Pfeffer 1, App. A at

8-10. The Court held that Section 627.2.15 could not be interpreted, as the City had

done for years, to establish a minimum requirement of loading berths, but instead

required a definite number of three (3) loading berths. Id. Thus, the Court quashed

the Commissions Resolution and remanded the case to the Commission for further

proceedings consistent with that ruling. Pfeffer 1, App. A at 10; see also App. C

(Mandate issued on October 31, 2014) at 1.

Heeding to this Courts decision, in anticipation of appearing before the

Commission on remand from this Court, Wal-Mart and the Citys Department of

Planning and Zoning agreed to conform the plans for the Project to provide only

for three (3) (instead of five (5)) loading berths. A de novo, quasi-judicial public

hearing was then held on remand before the Commission on November 20, 2014.

At the hearing, the Planning Director testified about the conformed Project as

follows:

I am under the impression that we have been directed by the court to correct an error that was made in the Class II Special Permit, which my department issued and which I signed.

So I understand my choices to be very limited today as your Planning and Zoning Director. And my choices are basically only to bring back to you a project that has a total of three loading berths, because the Court decided that total is to be interpreted as meaning no more than, no

Grant SternRESPONDENT Walmarts Brief at 6

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less than three loading berths. And this is, in fact, what the applicants, the original applicants, have done.

They have presented to us, and you will find in your packets, documents that show that where there were once five loading berths, there are now three loading berths. And, of course, because we have to do our due diligence, we had to make sure that those three loading berths that the document show are functional, which is why you will see in some of the drawings there are maneuvering diagrams.

So there are three functional loading berths presently in this particular establishment. By doing so, we believe that we have complied with the courts order. And we submit to you then that the revised set of documents, and the analysis and findings that are attached to those documents are worthy of your approval and corrective of the defect found by the courts.

App. D (Tr. of Nov. 20, 2014 Commission Hearing) at 7:128:21. He assured:

The modifications made to the plans render the three remaining loading berths fully functional. There are maneuvering studies that prove that.

In addition to that, we find that the three loading berths, as provided, comply with what we understand this to be the -- we understand to be the courts mandate, to interpret the code to mean that, at most, and at least three loading berths shall be provided. So we are here to verify that three loading berths, fully compliant with the appropriate sizes and dimensions provided by the zoning ordinance, have indeed been provided. Plans attached to show that is the case.

App. D at 28:117. The Planning Director concluded,

I think it is important, and perhaps appropriate, to hopefully clarify something that may be confusing. And it is this.

Grant SternRESPONDENT Walmarts Brief at 7

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Commission and the circuit court had applied the incorrect law and quashed the

ruling of the appellate division of the circuit court required that [t]he matter [ ] be

remanded by the Circuit Court to the Commission for further proceedings

consistent with this courts opinion. Id. (emphasis added). Id.

On remand, as required, the Commission held a hearing in which there was a

disagreement about how to interpret the Third Districts opinion, and in the end it

enacted a new zoning resolution accepting the view of the opinion suggested by the

City Attorney. Id. The objectors sought certiorari review in this Court, which was

denied. Id. They then sought second-tier certiorari review in the Third District,

which ruled that its prior opinion had been misinterpreted in the proceedings on

remand. Id. The Third District therefore granted certiorari and quashed; it vacated

the prior two zoning resolutions of the Commission, and instructed:

We remand this matter to the circuit court appellate division, with directions to remand the matter to the City Commission for a new hearing and determination by the City Commission whether the proposed project does, or does not, comply with Section 1305 as amended in 2004.

At the new hearing, the developer has the burden of demonstrating compliance with the new version of Section 1305. The City Commission must reopen the record and afford the developer and the objectors an opportunity to present new evidence if they so choose. Alternatively, the developer and the objectors are free to rely on the existing record if they so choose.

Grant SternRespondent Walmarts Brief at 17

Grant SternPetitioners Amended Petition for Writ of Ceriorari at 22

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calls them loading berths. That, in my

previous mind, was debatable. I will no

longer debate that. The court said there

were five --

COMMISSIONER SUAREZ: You shouldn't

debate that.

MR. GARCIA: I understand, I

understand, but should the issue ever come

up, I just want to note for the record

that the one on the upper story perhaps

should not have been classified as loading

berth.

We had approved the project with four

loading berths. That said, five loading

berths have been turned into three. And

you are correct, Commissioner, as the

plans show, where there were previously

five loading berths, there are now three.

And the result of that is that there will

now be three properly dimensioned,

properly striped areas.

And I'll now use the loading berth

definition provided by the Appendix C of

Miami 21, which refers back for full

clarity to Zoning Ordinance 11000, as

Grant SternPetitioners Exhibit B Page 33

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appropriate, to indicate that loading

berths in this context means that these

are the sole spaces where trucks or other

delivery vehicles may station themselves

so as to load and unload merchandise.

Because the number of loading berths

is now three, the area that was previously

set-aside for the other two loading berths

now function as additional space for

staging areas to be used as appropriate,

not for loading.

COMMISSIONER SUAREZ: And in your

opinion, that's in conformity with our

Code and with Miami 21? And that's an

acceptable -- and that's walled off?

That's not -- there's no viewing of that.

It's not viewed by the public, et cetera.

MR. GARCIA: These three loading

berths are fully contained within the

building, fully shielded from view and

protected by either walls or a gate, yes.

COMMISSIONER SUAREZ: And the other

question I asked you was whether or not

they had submitted a traffic management

plan and you told me that they had.


Grant Stern Petitioners Amended Petition for Writ of Certiorari at Page 26

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application process would be different.

And I don't see that happening today. I

mean, that's the way that I read it.

MR. LYDECKER: You've described it

better than I could. And wholeheartedly

agree. I would -- if I could just say one

quick word, Commissioner.

VICE CHAIR HARDEMON: You're

recognized, sure.

MR. LYDECKER: And in that process,

we're not moving one light switch. We are

not moving a wall. We are not moving a

thing. Not one paint swatch. Everything

stays the same. We're just going to have

three. Period.

VICE CHAIR HARDEMON: I'm willing to

entertain any motion of the Commission.

COMMISSIONER SARNOFF: I'll take a

shot, Mr. Chair, if you'd like.

MS. MENDEZ: Well --

COMMISSIONER SARNOFF: I would

move --

VICE CHAIR HARDEMON: Oh, I'm sorry.

I apologize. I did not have the public

hearing. I need at this time to open the


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exhibit b - appendix to brief

Documents

public inspection

public matter

public records

public hearing

municipal council

municipal agency

commission chambersthursday

ordinance register