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08-16-05 Item DRai ]RESOLUTION A RESOLUTION OF THE MAYOR AND CITY CON[MISSION OF HE CITY OF SOUTH MI` BACKGROUND On April 22, 2005, a citizen filed an appeal of an 1ERPB "final approval" decision for 7211 SRS 62 Avenue (JERPB Application No. 05 -009), The ERPB approved the site plan and design at its April 19, 2005 meeting. One condition was attached, the approval was subject to zoning compliance. The appeal included five points, of which three raised legal issues and two were either partially or wholly inquiries. The issues raised in the appeal were: 1. The 5% reduction in parking was not justified because the arcade did not extend beyond the "build to line'. 2. A reduction in required parking was not justified because the submitted floor plans contained three uses and more than 3 uses are required. 3. The proposed elevation contains 9 stories. 4. Did the front fiode comply with the LDC requirements (viewed as not clear, but possibly a staff question). 5. A question as to where garbage disposal and service were provided. (Viewed as a staff question) The appeal was scheduled for hearing before the City Commission on June 14, 2005. At that meeting Commission Sherar raised a question concerning compliance with parking. This was not one of the direct issues raised by the appeal but tangently related to issue #2 above. The question raised was if overall parking exceeded required parking why would the bonus matter? It was at this point that it was discovered that the wrong set of plans ERPB Appeal August 16, 2005 2 had been attached to the staff report. Staff discovered, with assistance from the appellant, Commissioner Sherar and Legal Counsel that the final set of plans were not in the package. In addition, the appellant had filed an amendment to his appeal that day that had not been seen by the Commission. The appellant stated he had no objection to withdrawing his appeal because the issues could be more clearly stated. The appellant filed a revised appeal on July 6, 2005. The revised appeal contains four issues as follows: 1. The proposed building does not qualify for a 5 percent parking reduction as a bonus for an "arcade" [LDC 20 -8.10] because the particular type of arcade promoted by the bonus is not included in the proposed building, and the intent of the bonus is questionable and it creates a parking deficiency. 2. The proposed building does not qualify for a 20 percent parking reduction as a bonus for "more than three uses" [LDC 20 -8.10] because only three uses are allowed and provided, and the proposed building does not meet the intent of "a mix of uses" so allowing this bonus results in a parking deficiency. 3. The building design does not qualify for a bonus of one additional floor for developing full frontage with street design as part of pedestrian walkway system [LDC 20 -8.10] because two code requirements for the building frontage are violated, and the building frontage design does not meet the intent of the LDC of being pedestrian friendly. 4. The nine stories (6 stories of parking and 3 stories of office) in the proposed building design are not allowed by the LDC because a maximum of eight stories are allowed with bonuses in this district, and parking stories are counted the same as occupied stories. These four issues are the only issues on appeal. DESCRIPTION OF THE REVIEW PROCESS The first step in approval was the submittal of plans and architectural details to the Environmental Review and Preservation Board (ERPB). The LDC (Section 20 -6.1, (C), (3)) stated the ERPB has only those powers and duties set out in the LDC or assigned to the ERPB by the City Commission. These duties consist of a recommendation (emphasis added) to approve, disapprove or modify "site plans ", "projects," ... " specification... scale, color ".. and "texture ". Other specific duties are set out exclusively for the ERPB in the LDC (such as for PUD's, in Section 20 -5.12 (d)). The ERPB is granted authority to approve site plans (LDC, 20- 5.11(A)). However, the LDC limits the ERPB to a recommendation in all other cases. This leaves the question as to whom the recommendation is made. ERPB Appeal August 16, 2005 3 The next step is submittal of a building permit. The LDC provides at Section 20 -5.13 that the "Building and Planning Department' reviews all permits. It is the responsibility of "Building and Planning" to assure that no permit is issued that does not conform to the Code. Following construction, compliance is determined by two distinct steps. First, "Building and Planning" checks for compliance prior to issuance of a Certificate of Occupancy (CO). After the building has received a "CO ", subsequent occupancy is checked when applications for an Occupational License are received. The LDC, as written, grants authority to the Building and Planning Department to determine zoning compliance at the Certificate of Occupancy and Occupational License stages. ISSUE 1 The initial design submitted clearly contained an arcade that extended beyond the " build to line ". The diagram at 20 -8.17 illustrated arcades along 62"d Avenue North are required and are to extend 8 feet beyond the property line. The Florida Building Code was amended subsequent to adoption of the LDC, prohibiting building beyond the property line. Based on this, the applicant and current owner of the property was ordered by the ERPB to provide the 8 feet wide arcade but within the property. It should be noted Section 20 -8.13 of the LDC specifies "all construction must comply with the South Florida Building Code." (now the Florida Building Code) Following final approval, the Florida Building Code was amended effective July 2005. That amendment does allow incursion into a right -of -way. Staff has checked with Miami - Dade County and has been told, given the new amendment, applications to extend arcades into R -O -W will be considered on a case -by -case basis. It is currently possible to resolve the issue prior to issuance of a building permit. Staff originally took the position an arcade is a covered walk, eight feet wide, and the "building line ", prescribed is merely a location criteria. However, the amendment to the Florida Building Code permits the applicant to adjust the design to comply not only with intent but location. A revision can be considered by the ERPB. If at that time the design complies with the LDC, this issue is moot. The Commission may want to rule as to whether an arcade is defined as a design element or by location to provide guidance for this development and subsequent developments. Note that Section 20 -8.12 states "every permissible option is not described herein; other options may be approved by the ERPB" (relating to architectural standards). This section granted authority to the ERPB to recommend approval of a design that conformed to the Florida Building Code. ISSUE 2 There is an ambiguity between the list of permitted uses found in the TODD District [(LDC20- 8.3)(2)] and Permitted Uses (LDC 20 -3.3). The TODD district lists uses as "residential uses and commercial uses ". Commercial uses are further defined in Section ERPB Appeal August 16, 2005 4 20 -8.5 through 20 -8.7. The permitted use chapter lists "use types;" (1) Planned Unit Development, Residential Uses (2) Business and Professional Use, (3) Retail and Wholesale trade, (4) Transportation, Warehouse and Communications, (5) Manufacturing and Intensive Uses. The property is zoned TODD -MU -5 and this district does not permit any of the uses found in "Manufacturing and Intensive Uses." Staff finds compliance with the "more than three uses" requirement is a zoning requirement. The determination of compliance with this requirement is made by staff at the building permit review step (note: Section 20 -8.12) which states "applicants with projects which conform to the standards may obtain approval from the Departmental staff without appearing before the ERPB ". ISSUE 3 This issue is related to whether the applicant (property owner) was entitled to four floors added to the four floors permitted as a matter of right. The appellant asserts that the bonus for Option D below is not appropriate. Section 20 -8.12 contains the bonuses available: A. Underground parking = One additional floor ➢ The applicant clearly provided underground parking. B. Public plaza, 5,000 sq. ft. = One additional floor The applicant provided the plaza required for the bonus C. Develop "cross - thru's" to public open space ➢ The applicant provided two cross thru's covered passageways to the public park. D. Develop full frontage with street design as part of pedestrian walkway system. ➢ The applicant has developed a covered sidewalk that is penetrated in two points by access. There is not one single example of a building that has not been found in compliance with the LDC because access penetrates the frontage. In fact the LDC [20- 8.15(F)] provides that 75% of the frontage be devoted to "pedestrian" entrances, transparent show or display windows, or windows affording into retail: office or lobby space. The frontage is based on the proposed structure and the design of the structure equals 77% of the fagade; minus the drives. ISSUE 4 Issue four is without merit. The appellant's statement does not apply if the Commission finds that parking levels are different than stories. The proposed building has four occupied stories; one at ground level and three above the parking. TODD MU -5 permits ERPB Appeal August 16, 2005 5 four occupied stories as a matter of right. In addition, staff finds this is an 8 story building above grade and complies with the LDC based on issue 3 outlined above. Contrary to appellant's belief, the approved elevation contains eight levels above grade and a basement level of parking. This issue then is determined by the eight levels above grade (garage with 60% of its structure below grade is exempt in determining levels). Staff referred to 6 levels of parking in the ERPB report because the elevations did contain the basement level of parking. This reference was a technical reference to the elevations for architectural review and not determinative of compliance with zoning. RECOMMENDATION Staff recommends the appeal be denied. The City Commission should adopt the attached resolution. It is important to note structures have been built previously that relied on the distinction between parking levels and stories. No appeal was filed prior to issuing the permit. While staff has found this is an eight story building in compliance with the Code, it strongly urges the Commission either define the term level -found at 20- 8.9(D)(7) or eliminate it. The appellant has pointed out needed revisions to the LDC. Attachments Proposed Resolution Location Map Copy of Appeal Application (July 6, 2005) Appellant's Memo (Filed July 6, 2005) ERPB Minutes Excerpt- April 19, 2005 Copy of site/ building plans (dated 4- 11 -05); recommended at ERPB Meeting 4 -19 -05 MD /DOD /SAY K:\ERPB\ERPB Appeals\Appeal ERPB- 05- 009(Weiss).doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO AN APPEAL FROM A DECISION OF THE ENVIRONMENTAL REVIEW AND PRESERVATION BOARD REGARDING THE APPROVAL OF A NEW MIXED USE BUILDING TO BE LOCATED AT 7211 SW 62 AVENUE; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Environmental Review and Preservation Board (ERPB) at its April 19, 2005 meeting reviewed Application No. ERPB -05 -009 and approved a proposed site plan and building design for a new mixed use building to be constructed at 7211 SW 62 Avenue; and WHEREAS, on July 6, 2005 an interested party, Mr. Jay Beckman, filed an appeal to the decision of the Environmental Review and Preservation Board claiming that plans for the proposed building do not comply with several requirements of the Land Development Code; and WHEREAS, Section 20- 6.2(A) of the Land Development Code allows for an appeal of an ERPB decision to be made to the City Commission by the applicant, interested citizens, or the City administration; and WHEREAS, Section 20 -6.2 (E) of the Land Development Code provides that the City Commission may reverse, affirm, or modify any decision of the Environmental Review and Preservation Board on which there has been an appeal. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT: Section 1. The appeal of the decision of the Environmental Review and Preservation Board of April 19, 2005 regarding the non - compliance with regulations of the Land Development Code for a new building at 7211 SW 62 Avenue is denied and the decision of the Board in this matter is affirmed. Section 2. This resolution shall be effective immediately after the adoption hereof. ATTEST: CITY CLERK PASSED AND ADOPTED this day of , 2005 APPROVED: MAYOR 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 (2) READ AND APPROVED AS TO FORM: CITY ATTORNEY E: \Comm Items\2005 \8- 16- 05\ERPB -05 -009 Appeal Resol.doc Commission Vote: Mayor Russell: Vice Mayor Palmer: Commissioner Wiscombe: Commissioner Birts- Cooper: Commissioner Sherar: Aa Qwgm 4 t' i h i 4 JUL 0561 2045 City of South I ianil Environmental Review and Preservation Board - E R P B APPEAL OF DECffSIGN TO CITY COMMISSION An appeal of all ERPB decision or recommeIidation may be filed at any time before a building perrnit is issued by filing the same with the City Clerk upon a 1"orm prescribed therefore. Appeals may be taken by the applicant, interested citizens, or the city adi-llinistrat:iorl (leer Section _20 -6.2 (A) of pity's Land Development Code), blue City Commission will Bear and enter a decision on all appeals within 60 days of the filing of an appeal ERPB Case No.: Date Of Decision of ERPB: 4v 6 Subject Address INDICATE YOUR RELATIONSHIP TO SUBJECT CASE: S81R'IMAROZE THE DECISION OIL 'I HE ERPB: C V C /-e�� sUMMAR11ZE REASON FOR . APPEAL: X Z, t K zz P', � dE r✓i i' 4 _I ti cb V{ ejr- 141, . PLE E SIGN YOUR NAME ON THE LINE ABOVE DATE j P,& S'UQ WIT THIS FORi11 TO CITY CLERK E.° 1ERPBiERPB �fpl enLc`,ERPB . #hrec,l.3 pplication`.�1nc APPLICANT INTERESTED CITIZEN C'I'TY ADMINISTRATION S81R'IMAROZE THE DECISION OIL 'I HE ERPB: C V C /-e�� sUMMAR11ZE REASON FOR . APPEAL: X Z, t K zz P', � dE r✓i i' 4 _I ti cb V{ ejr- 141, . PLE E SIGN YOUR NAME ON THE LINE ABOVE DATE j P,& S'UQ WIT THIS FORi11 TO CITY CLERK E.° 1ERPBiERPB �fpl enLc`,ERPB . #hrec,l.3 pplication`.�1nc ERPB Case ITT®.: ERPE -05 -009 (Decided April 19, 2005) Environmental Review and Preservation Bard - ERPB Appeal ®f Decision to City Commission 1�&. Jeffery Weiss Applicant V. Jay Beckman Appellant Brief for Appellant Filed July 6, 2005 p 1" "I Anad 7y I, i E� Table of Contents Introductory ,Summa ............... 1 Statement of the Case l Statement of Juri9diction 1 Issues Presented :. Summary of Argument ...................... 2 Argument .............................. 2 Conclusion Appendix A: Land De- velopment Code Pro- visions ...........:: ........:....:...............:7 Appendix B: Common Definitions ....... :....12 Appendix C: Planning Department Report to REPB .................... ....13 Building Plana, April 11, 2005 (not included) 1 Introductory Summary The proposed building design violates several Land Development Code (LDC) provisions resulting in a building that exceeds the eight story limit in the district; and has impaired function because of insufficient parking and a dysfunctional and dangerous frontage for pedestrians.' The commission should overturn the ERPB decision and deny this building design so that an improved and compliant design can be accomplished. Some of the applicable LDC provisions should he reviewed and possibly revised to improve the clarity of language and intent. Statement of the Case This case presents important questions concerning interpretations of the LDC in the Transit Oriented Development District (TODD). On April 19, 2005, the subject building was reviewed by the Environmental Review and Preservation Board (ERPB). Prior to the review a letter from Jay Beckman (citizen) was submitted to the ERPB through the Planning Department stating concerns with `compliance of the proposed building with the LDC. The ERPB gave final architectural approval of the proposed building subject to resolution of all LDC issues as the ERPB does not review for LDC compliance. At this point the task of reviewing and resolving LDC issues for the proposed building would have been in the hands of the Planning Department. If the Planning Department, had reconsidered the LDC issues and not required any changes in the proposed building design, building permits for the project would have been issued. On April 22, 2005 (re-filed on June 5, 2005) this appeal of the ERPB decision was fled to initiate a review of the LDC issues by the city commission. Statement of Jurisdiction The LDC provides that an ERPB decision may be appealed to the city commission by the applicant, interested citizens, or the city administration. -n appeal stays all actions related to the development of the property. The city commission must hear and enter a decision on all appeals within sixty days of the date of filing the appeal and may reverse, affirm or modify the ERPB decision [LDC 20 -6.2]. Issues Firesented Pour issues are presented. Three involve claimed bonuses [Building Plans, April 11, 2005, Sheet A -1, TODD Bonuses]. I) Does the proposed building design qualify for the five percent parking reduction claimed as a bonus for inclusion of an arcade? II) Does the proposed building design qualify for the 20 percent parking reduction claimed as a bonus for inclusion of more than three uses? ITT) Does the proposed building design qualify for a bonus of one extra floor for developing full frontage with street design as part of pedestrian walkway system? 2 The fourth issue concerns the nine stories included in the proposed building design [Building Plans, April 11, 2005, Sheet A -13]. IV) Are the nine stories allowed in the TODD MU -5, which has an eight story limit, because some of the stories are parking stories? Sum m of Argument The four issues presented in this appeal all involve nonconformance with the LDC that result in an impaired building design: 1 The proposed building does not qualify for 5 percent parking reduction as a bonus for an "arcade" [LDC 20 -8.10] because the particular type of arcade promoted by the bonus is not included in the proposed building, and the intent of the bonus is questionable and it creates a parking deficiency. 11) The proposed building does not qualify for a 20 percent parking reduction as a bonus for "snore than three uses" [LDC 20 -8.10] because only three uses are allowed and provided, and the proposed building does not meet the intent of "a mix of uses" so allowing this bonus results in a parking deficiency. III) The building design does not qualify for a bonus of one additional floor for developing full frontage with street design as part of pedestrian walkway system [LDC 20- 8.10] because two code requirements for the building frontage are violated, and the building frontage design does not meet the intent of the LDC of being pedestrian friendly. IV) The nine stories (6 stories of parking and 3 stories of office) in the proposed building design are not allowed by the LDC because a maximum of eight stories are allowed with bonuses in this district, and parking stories are counted the same as occupied stories. City planning staff exercised an abuse of discretion in allowing this building design to be presented to the ERPB, which reviews for architectural design and not for compliance with the LDC. The LDC provides that the letter and intent of the Code are to be narrowly interpreted' and can be amended from time to time as follows: uses and structures not specifically permitted shall be prohibited [LDC 20- 1.3(C)]; where a conflict in the code exists, the more restrictive limitation or requirement shall prevail [LDC 20 -1.6]; where a word or words may be interpreted in more than one manner, the more restrictive meaning shall apply [LDC 20- 1.9(A)]; no verbal or written communications by staff in the interpretation of the provisions of this Code shall be considered binding on the City [LDC 20- 1.9(B)]; the Code may be amended from time to time [LDC 20- 1.4(C)]. Bence, far reaching and convoluted interpretations of the LDC are unwarranted: Argument Issue L The proposed building design does not qualify for a 5 percent parking reduction as a bonus for an "arcade" [LDC 20-8.101 because the particular type of arcade promoted by the bonus is not included in the proposed building, and the intent of the bonus is questionable and it creates a parking deficiency. A. An arcade as defined in the LDC is not included in the proposed building. The type of arcade shown in the code is required to extend beyond the build-to-line [LDC 20 -8.2 3 Definition of arcade; TODD Regulating Graphics, Buildings and 'Their Placement, page 192]. The arcade of the proposed building does not and creates a significantly different fi'ontage than specified in the LDC. if the particular type of arcade required is not possible at this location then the bonus is unavailable. B. The intent of the bonus is questionable and creates a parking deficiency. Arcades are required along all buildings fronting 62 Avenue [LDC page 192, TODD Regulating Graphic] negating the need of providing a bonus for this feature. Arcades of any type do not reduce parking demand. As a result, this bonus creates a parking deficiency of 12 parking spaces [see Building Plans, April 11, 2005, Sheet A- 1,_Parking] in an area that has little street parking. , This code provision should be reviewed for possible elimination from the code. Issue H. The proposed building does not qualify for a 20 percent parking reduction as a bonus for '"more than three uses" [LDC 20 -8.101 because only three uses are allowed and provided, and the proposed building does not meet the intent of 66a mix of uses" so allowing this bonus results in a parking deficiency. A. Only three arses are allowed and provided in this district. There are five use categories within the TODD district: residential, commercial, light industrial, public /institutional, parrs and recreation [LDC 20- 8.3(c)(1). Permitted uses in the TODD W -5) sub- district, where the subject building is located, has two permitted uses: residential and commercial [LDC 20- 8.3(C)(2)(b). A third use of parking garage could be claimed as garages are considered a permitted use within the TODD [LDC 20- 8.8(D)(6)]. Inclusion of just three uses does not qualify for the bonus. The application of "use categories" here is appropriate. [LDC 20 -2.3 Definitions ] contains three definitions of "use." The first definition pertains to use categories as applied here and is obviously the definition that applies as a mix of use categories is the only reasonable mix that could result in a lower parking demand. This is common practice in Zoning Codes. B. The proposed bafldidg does not meet the intent of 662 mix of uses9, so allowing this bonus results in a parking,defficiency. In reviewing appeals, the LDC allows the commission to make modifications to the LDC to be sure the spirit (intent) is observed [LDC 20- 6.2(F)]. This LDC provision should be invoked to not allow the single apartment unit [see Building Flans, April 11, 2005, Sheet A -1] t® be claimed as a use to get the bonus, as this is does not contribute to a significant mix of uses. The letter of the code errs in not requiring a minimum amount of each use to qualify. But, the intent of the code clearly is to give a parking reduction bonus for those buildings that include a substantial mix of several use categories that would in fact create a reduced parking demand. Allowing this bonus would result in a parking deficit of 49 spaces [see wilding Flans, April 11,2005, Sheet A -1, Parking] in an area that has little street parking. Issue M. The building design does not qualify for a bonus of one additional floor for developing full frontage with street designs as part of pedestrian walkway system VLDC 20 -8.101 because two code requirements for the building frontage are violated, and the building frontage design does not meet the intent of the LDC of being pedestrian friendRy. 4 A. The service and loading area is not screened from view. The LDC requires that service and loading areas shall not be visible from public streets and shall be screened from the view of any pedestrian path [20- 8.14(E)]. The open corridor at the right (south) side of the proposed building, where garbage pickup occurs (and access for other service vehicles, and if not then where is service entrance), does not comply with the code. B. The building frontage contains too much vehicle access. The code [LDC 20- 8.15(F)j provides that, "Along a frontage containing a required building line, at least seventy-five percent of the width of any new or reconstructed first -story building wall facing a street shall be devoted to interest creating features, pedestrian entrances, transparent show or display windows affording views into retail, office, or lobby space." The building frontage includes a 22 feet wide garage down ramp, a 22 feet wide garage up ramp, and a 17 feet wide service alley, for a total of 61 feet of vehicle paths of the 198.5 feet of frontage. Hence 31 percent of the frontage is vehicle paths which violates the code. C. The building frontage design does not meet the intent of the LDC of being pedestrian friendly. This is not accomplished because of the two LDC violations described above and the intermixing of arcade with two garage ramps and a service alley would create a dangerous situation for pedestrians, which is exasperated by the columns of the arcade which obstruct the visibility of the vehicle paths: The intent of this bonus is questionable as arcades or awnings are required along all street frontage in the district negating the need to give a bonus for this design feature. This code provision should be reviewed for possible elimination from the code. Issue IV. The nine stories (6 stories of parking and 3 stories of office) in the proposed building design are not allowed by the LDC because a maximum of eight stories are allowed with bonuses in this district, and parldng stories -are counted the same as occupied stories. A. A maximum of eight stories are allowed in the district. Within the NX -5 district, the LDC permits buildings up to eight stories with bonus, but in no case shall a building exceed 100 feet [LDC 20- 8.3(D)(b) and 20- 8.9(D)]. The proposed building design contains nine stories (six parking stories and three occupied stories), which violates the LDC. B. Parldog stories are counted the same as occupied stories. The Planning staff report to the E13 [see Appendix C] claims that "based on city attorney's interpretation, levels of parking are not calculated as stories but by building height." This interpretation is not supported by the LDC because a parking level is defined to be a floor in a building that can form a story, the LDC does not delineate between parking floors and occupied floors, in assessing building height, and the LDC does not specifically permit extra stories to be added when some stories do not use the entire allowable 14 feet story height I. A parking level is defined to be a floor° in a building that can form a story. The code [LDC 20 -2.1] instructs that, "words not defined in the code shall have their common, 5 ordinary meaning unless the context clearly otherwise requires." The common definition of "level" is a practically horizontal surface; or, a floor or story in a building. A "parking level" is obviously a practically horizontal surface where cars are parked that can be a floor in a building. The common definition of "floor" is the level base of a room or, the surface on which one travels; or, a structure dividing a building into stories [Appendix B, Common Definitions]. Hence, the terms "level" and "floor" in a building have the same meaning. This is acknowledged in the Planning Department report to the E1PB, April 19, 2005 [see Appendix C] as follows: "The revised building includes three office levels and six levels of parking, totaling nine stories and a 99' -8" in height to the top of the concrete slab at stair roof." Note that the term "level" is used for both those occupied by offices and parking. The relationship between parking stories and parking levels is demonstrated by the following example: the code [LDC 20- 8.8(D)(7)] permits a freestanding (not supported or attached by other structure) garage in the TODD MU -5 zoning district to be up to six levels in height. Fence, a six level parking garage could contain only five stories if there is a parking level on the roof. 20 The LDC does not delineate between parking floors and occupied floors in assessing building height. The definition of "building" includes any structure housing any process or equipment [LDC 20 -2.3], and the word "building" or "structure" includes any part thereof [LDC 20- 2.3(I)]. The definition of "story" is the horizontal division of a building between the surface of a floor and the surface of the next floor above; a story unit larger than 14 feet counts as two stories [LDC 20 -8.2]. Hence, a building is divided into stories by floors regardless what activity occurs on the floors. This is acknowledged in the Planning staff report to the EIPE, April 19, 2005 [see Appendix C] which states, "The revised office building includes three office levels and six levels of parking, totaling nine stories and a 99' -8 in height to the top of the concrete slab at stair roof." 3. The LDC does not specifically permit extra stories to be added when some stories do not use the entire a low.%ble 14 feet story height The code provides that structures not specifically permitted shall be prohibited [LDC 20- 1.3(C)]. 'There is nothing in the code that specifically permits extra stories to be added when some stories do not use the entire allowable 14 feet floor -to -floor height as has been done with the parking stories of the proposed building. Bence, this is a violation of the LDC. The intent of the code is to control building height by limiting the number of stories and a liberal 14 feet story height is specified to allow architectural flexibility, not to add extra stories. In the subject building, all the parking stories except the ground level encompass the entire building footprint extending to the front of the building. Thus, the parking stories are defining the building height even at the building frontage (even though the facade attempts to obscure the number of stories). This situation is somewhat different from a building type that has occupied stories at the entire building frontage that define the building height and an attached parking garage at the rear of the building that may contain more parking stories than there are occupied stories but the height of the garage and occupied portions of the building are the same height in feet.' However, even this alternate building type would not be allowed because, the word "building" includes any part thereof [LDC 20 -2;3 (1)]. So, if a building has an eight story limit, than all parts of the building have an eight story limit. The clarity of language and intent of the LDC in regard to story limits in the TODD, specifically as applied to the two building types discussed above, should be reviewed. Conclusion Four issues of nonconformance with the LDC that result in an impaired building design have been cited. It is appropriate that each issue be considered independently. The resolution of each issue of noncompliance with the LDC would result in a major redesign of the proposed building. Therefore, for any of the four independent reasons, the commission should overrule the ERPB and deny this proposed building design. Additionally, some of the specific LDC issues raised in this appeal should be considered in the city's current review and revision of the LDC. 7 Appendix A Land Development` Code Provisions (In numerical order) 20 -1.3 Purpose and intent (C) Permissive regulations. It is the intent of the language in this Code to be permissive, rather than prohibitive in nature. In other words, uses and structures not specifically permitted shall be prohibited: 20 -1.4 Authority (C) Amendments. This Code may be amended from time to time in accordance with the provisions of this Code as required or allowed by subsequent legislative enactments. 20 -1.6 Conflicting provisions. Where a conflict exists between any limitation or requirement in this Code and any applicable limitation or requirement elsewhere in this Code, the more restrictive limitation or requirement shall prevail. 20 -1.9 Interpretation (A.) Ordinary meaning. Words shall be given their ordinary and common meaning, and where a word or words may be interpreted in more than one manner, the more restrictive meaning shall apply. (B) Invalid interpretation. No verbal or written communications by staff in the interpretation of the provisions of this Code shall be considered binding on the city if such communications are subsequently found to be invalid or incorrect by the city administration or city commission. 20 -2.1 Construction (E) Words not defined herein shall be construed to have their common ordinary meanings unless the context clearly otherwise requires: 20 -2.3 Definitions Use. Shall mean any purpose for which buildings or other structures or land may be arranged, designed, intended, maintained, or occupied; or any occupation, business, activity, or operation to be carried on or intended to be carried on in a building or other structure or on land; or a name of a building or other structure or tract of land which indicates the purpose for which it is arranged, designed, intended, maintained, or occupied.'' Building. Shall mean any structure having a roof supported by columns or galls and intended for the shelter, housing or enclosure of any individual, animal, process, equipment, goods or materials of any kind or nature." (I) The word "building" or " structure" includes any part thereof, and the word "building" includes the word "structure." a 20 -6.2 Appeals. (A) ERPB Decisions; Tine; Standing to Appeal. All decisions and recommendations of the environmental review and preservation board (ERPB)'shall be posted on the City Hall bulletin board immediately following the ERPB meeting. An applicant may obtain a building permit after noon of the day after the ERPB meeting, at which the application was approved, if all other requirements for the permit have been met. An appeal of an E1PB'decision or recommendation may be filed at any time before a building permit is issued by filing same with the city clerk upon a forth prescribed therefore. Appeals may be taken by the applicant, interested citizens, or the city administration. (E) Stay of Proceedings. An appeal stays all proceedings in furtherance of the action appealed froth, unless the officer from whom the appeal is taken certifies to the city commission, after notice of appeal has been filed with hire, that because of the facts stated in the certificate a stay would, in the officer's opinion, cause imminent peril to life or property or that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of the Code. (D) Appeal Dearing. The city commission shall hear and enter a decision on all appeals within sixty (60) days of the date of filing said appeal, and shall provide due notice of the appeal to the parties. (E) Commission Action. The city commission may reverse, affirm or modify any order, requirement, decision or determination appealed from and shall make any order, requirement, decision or determination that, in the city commission's opinion, ought to be made in the circumstances. (F) Modification Allowed. When practical difficulties or unnecessary hardships would result from carrying out the strict letter of a Code provision, the city commission may, in passing upon appeals, vary or modify any regulation or provision of the Code relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the Code is observed, public safety and welfare secured, and substantial justice done. 9 20 -8.10 Bonus allocations Action Bonus Arcade - 5 %parking reduction. Area over arcade not counted in totals Underground parking - 1 additional floor of office or 2 floors of residential More than three uses 20% parking reduction For every 1 floor of residential use - I additional floor of residential use with the minimum parking requirement two cars per residential use Public plaza-min. 5,000 SP and art work in plaza setting 1- additional floor Develop fall frontage with street design as part of pedestrian wallnvay system - 1 additional floor Develop "cross -thrus from street to public open space as part of pedestrian walk-system, on owner's property -1 additional floor 20 -8.14 Street standards (E) Service and loading areas shall not be visible from public streets and adjacent residential properties. All service areas shall be screened from the view of any pedestrian or vehicular path. 20 -8.2 Defnitions Arcade / colonnade. A covered, open -air walkway at standard sidewalk level attached to or integral with the building frontage; structure overhead is supported architecturally by columns or arches along the sidewalk; required to extend beyond the build -to -line. These standards permit encroachment by habitable spaces on upper floors over any arcade along a City street, or elsewhere if approved by the entity controlling the right-of-way. Story. The horizontal division of a building between the surface of a floor and the surface of the next floor above, or the next ceiling if there is no floor above. For the purposes of these regulations a story shall be interpreted as each vertical unit of fourteen (14) feet maximum, e.g. a, one-floor cmema, twenty two (22) feet tall shall be considered a two -story building." 20 -8.3 Creation of TODD sub - categories (C) Permitted uses (1) Where are five use categories within the TODD district: residential uses, commercial uses, light industrial uses, public / institutional, parks and recreation 2) The uses permitted in each TODD sub - category shall be as (b) TODD (ICJ -5): residential uses, commercial uses (D) Permitted heights (b) TODD (TAI -5): 2 story, um: -4 story maximum; up to 8 stories with bonus. Maximum height 100 feet. 1® 20 -8.5 Parking (D) Garages in MU-5 (6) Garages shall be considered a permitted use within the TODD; however, the regulations for arcades or awnings shall apply. (7) Freestanding garages, not to exceed six levels in height, may be permitted on any site within the district (MU-5). 20 -5:9 Special exception (D) Within the MU -5 sub- category the maximum height of new buildings or additions shall be restricted to four stories as permitted or up to eight stories as permitted with bonus; but in no case shall exceed 100 feet. 20 -5.15 Public spaces. (F) Along a frontage containing a required building line, at least seventy -five percent of the width of any new or reconstructed first -story building wall racing a street shall be devoted to interest creating features, pedestrian entrances, transparent show or display windows, or windows affording views into retail, office, or lobby space. B 20 -8,17 SOUTH MWE LAND DEVIEMOPRIENT COD MIXED IiSI ii u-5 Sf!€ MAHNI5I'IkI:I fS SI11�S I >ItIVI Sal. M AVE.' i itl!!!__ OR 5TREET -5 ii 30 -10011 CLG FPONTAGE i fUK6 -•1 l ,i 0 APCADE OK AWNING - B ;� m `; [IOU — ® s Y f N m m e m 1D� BUILDING BEAK � MIN DEPTH YAPD 1:5 o ci ADJACENT PROFEKTY j 0 P a e Sapp. No. 3 192" Appendix Common Definiflons Le e 1. a flat horizontal surface (The American Heritage College Dictionary, Fourth Edition, 2004) 2. a practically horizontal surface or area (1 erriam- Webster's Collegiate Dictionary, Eleventh Edition, 2003) 3. a floor or story in a building, ship, etc. (Oxford American Dictionary of Current English, 2002) Floor 1. the surface of a room on which one stands; a story or level of a building (The American Heritage College Dictionary, Fourth Edition, 2004) 2. the level base of a room; a structure dividing a building into stories (Merriam- Webster's Collegiate Dictionary, Eleventh Edition, 2003) 3. the louver surface of a room; all the rooms on the same level of a building; a story (Oxford American Dictionary of Current English, 2002) CITY OF SOUTH ceflance, Integrity, Inclusion ENVIRONMENTAL REVIEW & PRESERVATION BOARD To; Chair & Members, Environmental. Date., April 19, 2005 Review & Preservation Board Tuesday 8:30 a.m. Via: Don ®'Donniley Planning Director From: Lourdes Cabrera - rnandez. Re, ERPB -05 -009 Planner Applicant: Cdr. Jeffrey J. Weiss Location: 7211 SW 62nd avenue, So. Miami, FL Requests NEW CONSTRUCTION APPLICANT'S REQUEST, The applicant is requesting final approval for the construction of a new office building to be located at the above referenced property. Legal DesE!ptiM Lots O'thru 11, Block 1, "Revised Poinclana Park ", according to the plat thereof, as recorded in plat book 41, at page 41, of the public records of Miami -Dade County, Florida. Backer and & ST AFF ANALYSIS. At the last ERPB meeting of April 5s 2005 the applicant received preliminary approval with conditions. Please refer to the attached ERPB letter dated April 6, 2005. At the previous two ERPB meetings the proposed new construction was deferred and received comments from the Board, refer to attached letters from lurch 15, and February 15, 2005 ERPB meeting. The applicant is proposing to build a mixed -use office /retail /residential building. The property has an area of 25,011 sf. or 0.574 acres. An existing tiro- story c.b.s. building will be. demolished. The zoning classification is the Transit Oriented Development District (TODD MU- 5), in which a mixed use is permitted by right. The revised office building includes three office levels and six levels of parking, totaling nine stories and a 99' -6" in height to the top of the concrete slab at stair roof. Based on city attorney's interpretation, levels of parking are not calculated as stories but by building height. Pursuant to Section 20- 6.3(D)tb) .Permitted lie hts: Todd (MU-5. Maximum building height 100 feet. Refer to Sheet A-1 for proposed parking calculations and bonus credits. At this time the applicant is requesting final approval of the site and building design from the ERPB. (Vote: Signage not a part of this submittal. RECOMMENDATION: Beard should consider if the project's meets their architectural standards In other words, has the applicant implemented the Boards comments and suggestions from the April 5, 2005, march 15, 2005 and February 15, 2005 ERPB meetings. Attachments: ERPB letter dated April 5, 2005, March 15, 2005 and February 15, °2005, February 15, 2005, Application (on file), Survey, Site Plan, door plan, Elevations, Landscaping & Irrigation Plan. A complete set of working drawings and a revised models LCH K:IERPBIERPB Agendas\2005 AGENDASIERPS April 19, 2005\ERPB 05- 009RRR.doc g0Ux� J. y. INCORPORATED 1927 P x+t O �I� CITY OF SOUTH MIAMI ENVIRONMENTAL REVIEW & PRESERVATION BOARD REGULAR MEETING SUMMARY MINUTES Tuesday, April 19, 2005 g :30 AM L CALL TO ORDER Action: Mr. Trautman, Chairperson, called the meeting to order at 8:35 A.M. IL PLEDGE OF ALLEGIANCE Action: The Pledge of Allegiance was recited in unison. III. ROLL CALL Action: Mr. Trautman performed roll call. Board members present constituting a quorum: Mr. Trautman, Ms. Mark, Ms. Morales- Fernandez, and Mr. Jude. Board members absent: Mr. Balli, Mr. Vitalini, and Ms. Banks. City staff present: R. Don O'Donniley (Planning Director), .Lourdes Cabrera- Hernandez (Planner), and Patricia E. Lauderman (ERPB Board Secretary). W. REQUESTS 1) SIGNAGE INSTALLATION [ERPB -05 -034] Applicant: Mark Bennington for: "M Cycle Gym" Location: 6114 South Dixie Highway Request: The applicant is requesting approval for signage for the retail business by the name of "M Cycle Gym ", located at the above referenced location. Applicant present: Mark Bennington Action: The Board, staff and applicant discussed the signage request. The proposed exterior signage is located in the "GR" General Retail district. Motion: Mr. Jude moved for approval of the application with the following condition: that the lettering of the signage is no taller than the lettering of "Racquet World" signage and (2) provide approval letter from property owner. Ms. Morales - Fernandez seconded the motion. Vote: Approved 4 Opposed 0 2) EXTERIOR RENOVATION [ERPB -05 -033] Applicant:- Judi Witkin for: "Z Gallerie Location: 5701 SW 72 Street Request: The applicant is requesting approval to for the exterior renovation/upgrade for the existing_ retail business by the name of "Z Gallerie," located at the above referenced location. Applicant present: Judi Witkin Action: The Board, staff and applicant discussed the request. The proposed renovation is located in the "SR" Specialty Retail district. Motion: Mr. Trautman moved for approval of the application as presented with the following condition: (1) applicant provides approval letter from property owner. Mr. Jude seconded the motion. Vote: Approved 4 Opposed 0 3) SIGNAGE INSTALLATION [ERPB -05 -035] Applicant: Pizza Power Location: 7400 SW 57 Avenue Request: The applicant is requesting for a change of copy to the new business by the name of "Pizza Power," located at the above referenced location. Applicant present: Gene Martinez Action: The Board, applicant, and staff discussed the proposal, consisting of two signs. The Board clarified to the applicant the usage of signage (as stated by the land development' Code) is for the purpose of identification of the business and not for advertisement. The proposed new sign will read "Pizza Power and will be single face acrylic mounted on the existing electrical box on the mansard roof of the existing building. The second sign which is on the pole will read "Pizza Power" on two faces and the proposed colors are black and red lettering on a white background. Mr. O'Donniley requested that applicant meet with planning staff in order to resolve the business' occupational license issue. ERPB MINUTES 4 -19 -05 Page 2 of 5 Motion: Mr. Trautman deferred the application with the following conditions: (1) wall signage is limited to read "Pizza Power" no wording of salads, wraps, is permitted; (2) applicant needs to revise marquee sign in order that business name of "Pizza Power" is 2/3 in size and logo (orange background with lettering) is decreased to 1/3 in size. Mr. Jude seconded the motion. Vote: Deferred 4 Opposed 0 4) SIGNAGE INSTALLATION [ERPB -05 -036] Applicant: ' Heather Raylinski for "Up Against the Wall" Location: 5701 SW 72 Street Request: The applicant is requesting approval to install signage and a new for "me retail business by the name of "Up Against the Wall," located at the above referenced location. Applicant present; Heather Raylinski Action: At today's meeting, the Board, staff, and applicant discussed the signage request. The proposed signage is located in the "SR Specialty Retail district. Motion: Ms. Morales- Fernandez moved for approval of the application as presented. Mr. Jude seconded the motion. Vote: Approved 4 Opposed 0 5) SIGNAGE INSTALLATION [ERPB -05 -024] Applicant: Art Sign Co. for "HSBC" Location: 7300 SW 57 Court Request: The applicant is requesting approval for signage on the north, south, east and west fagade of the new building. Applicant present: Jose Gonzalez Action: At today's meeting, the Board, staff, and applicant discussed the signage request, which included flat and directional signs. The proposed exterior signage is located in the "SR" Specialty Retail district. Motion: Mr. Trautman moved for approval of the application as presented. Ms. Mark seconded the motion. Vote: Approved 4 Opposed 0 ERPB MINUTES 4 -19 -05 Page 3 of S 6) EXTERIOR RENOVATION [ERPB -05 -037] Applicant: Eastshore Int9 l Corp Location: 6301 SW 72 Street" Request: The applicant is requesting final approval for the exterior renovation of the existing two -story building, at the above referenced property. Applicant present: Luis Jauregui Action: At today's meeting, the Board, staff, and applicant discussed the request for exterior alteration; This property is zoned "RO" Residential office. The intent of the alteration is for the building to be consistent with the property to the west, 6333 SW 72 Street. Motion: Ms. Mark moved for preliminary approval with the following conditions: (1) submittal of a landscaping plan; and (2) applicant resolves scupper situation and awning issue. Mr. Trautman seconded the motion. Vote: Approved 4 Opposed 0 7) NEW CONSTRUCTION: Final [ERPB -05 -009] Applicant: Mr. Jeffrey Weiss Location: 7211 SW 62 Avenue Request: The applicant is requesting final approval for the construction of a new office building to be located at the above referenced property.' Applicant present: Nazy Given Action: The Board, staff, and applicant discussed the revised design to a proposed mixed -use office /retail /residential building. At the last meeting ERPB meeting of April 5, 2005 the applicant received preliminary approval with conditions. At the previous two ERPB meetings the proposed new construction was deferred and received comments fro the Board. At today's meeting, Mr. O'Donniley brought to the Board's attention a letter written by Mr. Jay Beckman which outlined several aspects of the proposed design which need to be reexamined for compliance with the Land Development Code. The Board addressed Mr. Beckman's letter and determined that items he listed in the letter were out of the Board's purview. The Board decided to review the application based on their recommendations to the applicant from the last meeting. Motion: Mr. Trautman granted final approval to the design based on the Board's last recommendations in which the applicant has complied fully, however, final approval with the following conditions': that applicant must comply and have all zoning issues which were raised in meeting resolved before final approval. Ms. Mark seconded the motion. Vote: Approved 4 Opposed 0 ERPB MINUTES 4 -19 -05 Page 4 of 5 V. APPROVAL OF MINUTES Minutes for regular meeting held on April 5, 2005. Action: The Board duly approved the minutes of April 5, 2005 as presented. Vote: Approved 3 Opposed 0 Abstained 1 (Ms. Morales - Fernandez) VI. REMARKS No remarks were said: VIL ADJOURNMENT Action: There being no further business before the Board, the meeting was adjourned at 10:30 A.M. An appeal of an ERPB decision or recommendation may be filed at any time before a building permit is issued by filing same with the city clerk upon a form prescribed therefore. Appeals may be taken by the applicant, interested citizens, or the city administration [per § 20 -6.2 (A) of the City's Land Development Code]. If you have any questions concerning this matter, please contact Lourdes Cabrera - Hernandez, of the Planning & Zoning Department, between the hours of 8:00 AM and 5:00 PM, Monday through Friday, at 305.663.6347. 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