The URL can be used to link to this page

Home My Public Portal AboutLTC 042-2015 - Permitting for Development at 200 Bal Bay DriveAAL H OUR F I. O R I D A*�I' A D I S E OFFICE OF THE VILLAGE MANAGER NO. 042-2015 LETTER TO COUNCIL TO: Mayor Martin Packer and Members of the Village Council FROM: Jorge M. Gonzalez, Village Manager DATE: February 27, 2015 SUBJECT: Permitting for Development at 200 Bal Bay Drive The purpose of this Letter to Council (LTC) is to transmit the attached communications reference permitting for development at 200 Bal Bay Drive, between Angel A. Cortinas, Esq., legal counsel for Flamingo Way and Weiss Serota Helfman Cole & Bierman, P.L.. Should you have any questions or require additional information, please feel free to call the Richard Weiss or me directly. Attachments WEISS SEROTA HELFMAN MITCHELL BIERMAN, P.A. COLE BIERMAN & POPO$ P.L. MATEO ARIAS MITCHELL J. BURNSTEIN, P.A. COLE, P.A. JAMIEEN EONJ N. BRAMBLE J. STEPHEN J. HELFMAN, P.A. ATTORNEYS AT LAW C. DARBY MICHAEL S. POPOK, P.A. A PROFESSIONAL LIMITED LIABILITY COMPANY DANIE OANIEL A. ESPINO BRADLEY A. FISHBURGER JOSEPH H. SEROTA, P.A. SUSAN L. TREVARTHEN, P.A. INCLUDING PROFESSIONAL ASSOCIATIONS PAUL R. GOUOELMAN RICHARD JAY WEISS, P.A. ERIC P.. DAVID M. WOLPIN, P.A. OFFICE HYMAN HYMANN T BROWD 200 EAST BROWARD BOULEVARD KELLYSCOTA KELLY RAINS JESSON DANIEL L. ABBOTT "REJUSTI I RMAN' RANGO SUITE 1900 . LUGER IONACIO G. DEL VALLE IONACLILLIAN G. DEL FORT LAUDERDALE, FLORIDA 33301 MIA R. A TIN MIA R. MARTIN JEFFREY D. DecARLO gLEIDA MARTW Ez MOLINA' ALAN K. FERTEL EDWARD MARTOS CHAR S. FRIEDMAN TERENCE L. MCKINLEY* ALAN L. GABRIEL TELEPHONE 964763-4242 KATHRYN M. MEXAFFEY DOUGLAS R. GONZALES FACSIMILE 954-7647770 ROBERT A. METERS* EDWARD G. GUEDES WWWWSH-LAW.COM GILBERTO PASTORIZA" JOSEPH HERNANDE2 MARC C. PUGLIESE' ROGER S. KOBERT MIAMI-DADE OFFICE GAL D. SEROTA' JOSHUA D. KRUT ANTHONY C. SOROKA MATTHEW H. MANOEL MATTHE 2626 PONCE DE LEON BOULEVARD . SUITE 700 EDUARDO M. SOTO* MATTHEW PEARL CORAL GABLES, FLORIDA 33134 ALAN 9WCHARTZSEID JOHN J. QUICK TELEPHONE 306-8640800 • FACSIMILE 306.864-2323 PABLO A. TAMAYO ANTHONY L. RECIO JOANNA 0. THOMSON BRETT J. SCHNEIDER PETER D, WALDMAN* CLIFFORD A. SCHULMAN *OF COUNSEL ALICIA H. WELCH ALISON F. SMITH "SENIOR SAMUEL 1. 2ESKIND ERIC L. STETTIN COUNSEL MARC SOLOMON LAURA K. WENDELL February 26 2015 JAMES E. WHITE , Angel A. Cortinas, Esq. Gunster Law Firm 600 Brickell Avenue — Suite 3500 Miami, FL 33131 Re: Permitting for Development at 200 Dal Bay Drive Ball Harbour (the "Property"1 Dear Mr. Cortinas: We are in receipt of your letter dated February 26°i relating to the hedge issue. In your letter you noted that your client believes that the Village has made an assessment with regard to the proper use of the dock master facility and the marina as a private recreational facility. Contrary to the statement in your letter, the Village has not made a determination that your client is legally and properly operating the dock master facility and the marina as a private recreational facility. As noted in footnote 6 of my February 24; 2015, to you, `lilt is important to note that any use of property within the Village is currently being reviewed by the Village to assure compliance with the use restrictions of the zoning and land use code provisions, and the Village reserves its rights in connection with this review." The Village is currently working to ascertain that all uses in the PC zoning district, includingthe marina and associated uses, comply with PC zoning. This is an on -going process. Again, 1 am appreciative of your letter. Very truly yours, F10 VIAN, COLE & BIERMAN, P.L. 4_ PRG:mc 61 cc: Mayor and Village Council Richard Jay Weiss, Esq. Jorge M. Gonzalez, Village Manager Susan L. Trevarthen, Esq. Suramy Cabrera, Building Official 1 C-DUNSTER FLORIDA'S LAW FIRM FOR BUSINESS Writer's Direct Dial: (305) 376-6043 Writer's E-Mail Address:. ACortinasQgunster.mm February 26, 2015 Via US Mail & Email Mr. Paul R. Gougelman, III Weiss Serota Helfinan Cole Bierman & Popok, P.L 200 East Broward Boulevard Suite 1900 Fort Lauderdale, Florida 33301 t3gou elmanAwsh-law.com Re: Response to February 24, 2015 Letter 200 Bal Bay Drive, Bal Harbour, Florida 33154 Dear Mr. Gougelman: As you know, I represent Flamingo Way Enterprises, LLC ("Flamingo Way") and the Bat Harbour Yacht Club, Inc. located at 200 Bal Bay Drive, Bal Harbour, Florida 33154 (the "Property"). I have received your letter dated February 24, 2015, confirming the withdrawal of Flamingo Way's application to plant a hedge on its Property. Please know that my clients disagree with your interpretation of the applicable Village of Bat Harbour Code requirements. We have noted that you also acknowledged that the Bal Harbour Village Council previously approved by a 5-0 vote my client's plans for a dock master's office within the private recreational facility it operates. We do not disagree with your assessment of the property as a private recreational facility. Very truly :rti , el A. oas Cbunsel to Flamingo Way Enterprises, LLC and Bal Harbour Yacht Club, Inc. cc: Village Attorney, Richard Jay Weiss (rweiss@wsh-law.com) CUNSTER 600 Brickell Avenue, Suite 3500 . Mlaml, Florida 33131 1 305-376-6000 1 Fax: 305-376-6010 1 WWW.gunster.com MITCHELL BIERMAN, P.A. .ITCH ELL J. BURN STEIN, P.A. JAMIE ALAN COLE, P.A. STEPHEN J. HELFMAN, PA. MICHAEL S. POPOK, P.A. JOSEPH H. SCROTA, RA, SUSAN L. TREVARTHEN, RA. RICHARD JAY WEISS, P.A, DAVID M. WOLPIN, P.A. OANIEL L. ABBOTT LILLIAN M. ARANGO IGNACIO G� DEL VALLE JEFFREY D. DECARLO ALAN K. FERTEL CHAD S. FRIEDMAN ALAN L. GABRIEL DOUGLAS R. GONZALES EDWARD G. GUEDES JOSEPH HERNANDEZ ROGER S. KOBERT JOSHUA D. KRUT MATTHEW H. MANDEL MATTHEW PEARL JOHN J. QUICK ANTHONY L. RECIO BRETT J. SCHNEIDER CLIFFORD A, SCHULMAN ALISON F. SMITH MARC SOLOMON LAURA K. WENDELL JAMES E. WHITE WEISS SEROTA HELFMAN COLE BIERMAN & POPOK, P.L. MATEO ARIAS ATTORNEYS AT LAW CUBA N. BRAMBLE SONJA C. DARBY DANIEL A. ESPING A PROFESSIONAL LIMITED LIABILITY COMPANY ERIC P. HOCKMAN INCLUDING PROFESSIONAL ASSOCIATIONS SCOTT M. HYMAN KELLY RAINS JESSON BROWARD OFFICE KAREN LIEBERMAN* 200 EAST BROWARD BOULEVARD JUSTIN D. LUGERMIA R. MARTIN SUITE 1900 ALEIDA MARTINEZ MOLINA' EDWARD MARTOS FORT LAUDERDALE, FLORIDA 33301 TERENCE L. MCKINLEY' KATHRYN M. MEHAFFEY ROBERT A. METERS' TELEPHONE 954-763-4242 GILBERTO PASTORIZA" FACSIMILE 954-764-7770 MARC C. PUGLIESE' W W W.WSH-LAW.COM GAIL D. SCROTA' ANTHONY C. SOROKA MIAMI-DADE OFFICE EDUARDO M. SOTO' 2628 PONCE DE LEON BOULEVARD • SUITE 700 ALAN SWCHARTZSEID PABLO A. TAMAYO CORAL GABLES, FLORIDA 33134 JOANNAG.THOMSON TELEPHONE 365-854-O500 • FACSIMILE 305-854-2323 PETER D. WALDMAN* ALICIA H. WELCH SAMUEL 1. ZESKIND FOF COUNSEL "SENIOR COUNSEL February 24, 2015 Angel A. Cortinas, Esq. Gunster Law Firm 600 Brickell Avenue — Suite 3500 Miami, FL 33131 Re: Permitting for Development at 200 Bal Bay Drive Bal Harbour (the "Property Dear Mr. Cortinas: I am writing to respond to your letter of February 18, 2015. In that letter, you advised the Village that your client, Flamingo Way Enterprises, LLC ("Flamingo Way"), was withdrawing its permit application for a hedge on the Property. Before responding to your letter, I would like to provide the factual predicate for this response. In July, 2012, an application was submitted by Flamingo Way for an Architectural Review Board ("ARB") hearing (the "Application"). The Application included a site plan for a one-story (340 square foot) CBS building to be used as a dock master's office (the "Site Plan") and a Landscaping Plan, including a five foot hedge along a paved roadway adjacent to the proposed dock master's office and the marina (the "Landscaping Plan").' I The plans were entitled Dock Master's Office for Flamingo Way Enterprises, L.L.C., prepared by Cali] Architects of Miami, Florida Angel A. Cortinas, Esq. February 24, 2015 Page 2 The Application was discussed at the September 5, 2012, ARB meeting where the Building Official submitted an oral report and a written memo? A representative of Flamingo Way spoke against the five foot high hedge and advocated for a 30-inch high hedge instead. Residents advocated against the hedge for aesthetic and compatibility reasons in that the hedge would block the view of the marina.3 After discussion, the ARB voted 5-0 to favorably recommend approval of the Site Plan and Landscaping Plan with several conditions, including deletion of the hedge. The Site Plan and Landscape Plan were revised to reflect the ARB action showing deletion of the hedge (the "Revised Plan") and on October 16, 2012, pursuant to Section 21-146.2, were presented to the Village Council, together with a revised memorandum from Building Official Daniel B. Nieda, recommending approval 4 At the Village Council meeting Mr. Nieda presented the Revised Plan, together with the ARB recommendations, which included the recommendation that approval should be conditioned upon deletion of"the five foot continuous hedge".5 After discussion concerning an additional condition not relevant to the issue at hand, the Village Council voted 5 to 0 to approve the Revised Plan. Since the time of approval of the Revised Plan, your client has constructed the new Dock Master's Office, and consistent with the Revised Plan, no hedge was planted. Section 21-146.2, Village of Bat Harbour Code of Ordinances (the "Village Code"),6 provides: Sec. 21-146.2 Site plan approval. The development of any new Private Recreation Facility or alteration, addition or modification to an existing Private Recreation Facility may only be permitted in accordance with a site plan (including a landscaping plan) approved by the Village Council after a public hearing and upon a showing that the proposed facilities: 2 Memorandum from Daniel B. Nieda, R.A., Building Official, to ARB (Sept. 5, 2014). 3 See Item 4, ARB Minutes at p. 3 (Sept. 5, 2012). 4 Item 6, Village Council Minutes (Oct. 16, 2012). 5 Id., p, 6. 6 It is important to note that any use of property within the Village is currently being reviewed by the Village to assure compliance with the use restrictions of the zoning and land use code provisions, and the Village reserves its rights in connection with this review. WEISS SEROTA RELFMAN COLE BIERMAN & POPO$, P L, Angel A. Cortinas, Esq. February 24, 2015 Page 3 (1) Comply with each of the criteria listed in section 21-146.1 above. (2) Are designed and scaled to be compatible with adjacent development(s) and the surrounding neighborhood. (3) Will not create excessive noise, traffic, illumination or other noxious impacts. In connection with the approval of the site plan the Village Council may impose reasonable limitations on the use (including hours of operation) to ensure the compatibility of the use with adjacent development(s) and the surrounding neighborhood. (emphasis supplied). Based upon the above, any development of a private recreational facility must undergo site plan review including review and approval of a landscaping plan, Additionally, the Village Code specifies that any alteration, addition, or modification to an existing private recreational facility may only occur consistent with a site plan and accompanying landscaping plan. Consequently, with the Revised Plan (deleting the hedge) having been approved in 2012, any changes to the Revised Plan would require an amendment, including review and approval by the Village Council. Any actions inconsistent with the Revised Plan without Council approval would be in violation of the Village Code. If your client desires to deviate from what was approved, an amendment to the Revised Plan is necessary. This is especially true given the central importance of and deletion of the requirement for a hedge as part of the approval, a position that was not objected to by your client in 2012. In your February 181h letter, you stated that the ARB application recently submitted and then withdrawn was originally "submitted based on a representation by Town Building Official Suramy Cabrera to Mr. Tony Imbesi, Vice -President of Flamingo Way, that such an application was required by [sic] Bal Harbour Code of Ordinances." In the next paragraph, you note that "Flamingo Way ... discovered that there is no provision of... law ... requiring Flamingo Way to obtain a permit .. . before planting the hedge." We disagree. Based on the foregoing discussion of site planning and the process to amend an existing Site Plan and Landscaping Plan, it is clear that Suramy Cabrera's representation that an application to amend the revised Site Plan and Landscaping Plan was accurate and legally supported. WEIss SEROTA HELPMAN COLE 131ERMAN & POPOE, P.L. Angel A. Cortinas, Esq., February 24, 2015 Page 4 If you need assistance in filing the necessary application to amend the Revised Plan, please feel free to contact us. Very truly yours, WEISS SEROTA HELFMAN, COLE & BIERMAN, P.L. A� III PRG/mc PC: Mayor and Village Council Jorge M. Gonzalez, Village Manager Suramy Cabrera, Building Official Richard Jay Weiss, Esq. WEISS SEROTA HELPMAN COLE BIERMAN & POPOE, P.L. GIJNSTER FLORIDA'S LAW FIRM FOR BUSINESS February 18, 2015 Via Fedex & Email Ms. Suramy Cabrera Bal Harbour Village Hall 655 96th Street Bal Harbour, Florida 33154 buildingofficialnabalharbour.org Writers Direct Dial: (305)376,6043 Writer's &Mad Address: ACortinw@gunster.com Re: WITHDRAWAL OF PERMIT APPLICATION FOR HEDGE 200 Bal Bay Drive, Bal Harbour, Florida 33154 Dear Ms. Cabrera: I represent Flamingo Way Enterprises, LLC ("Flamingo Way"), the owner of 200 Bat Bay Drive, Bat Harbour, Florida 33154 (tile "Property").. Flamingo Way recently submitted an application to plant a hedge not to exceed five (5) feet in height on the Property (the "Hedge"). The application was submitted based on your representation to Mr. Tony Imbesi, Vice -President of Flamingo Way, that such an application was required by Bal Harbour Code of Ordinances. Since the application was submitted, Flamingo Way has discovered that there is no provision of the Bal Harbour Code, and no Jaw of any kind, requiring Flamingo Way to obtain a permit from the Village before planting the Hedge.. In fact, the Village of Bal Harbour, its Council, and its agents and offices have no legal authority whatsoever to preclude Flamingo Way from planting the Hedge. You confirmed this fact during a telephonic conversation with me on February 17, 2015. Moreover, at the Village Council meeting held on February 17, 2015, I advised the Council that there exists no legal authority whatsoever to preclude Flamingo Way from planting the Hedge. Neither the Village Attorney nor the Village Manager stated that there exists any such lawful authority. Accordingly, because there was no legal authority to require Flamingo Way to submit an application to plant its Hedge, Flamingo Way hereby withdraws its permit application, which is presently pending before the Architectural Review Board. This letter will also serve as a formal notification to the Village to provide any legal authority expressly requiring Flamingo Way to submit an application for the Hedge. Based on my review of the Bal Harbour Village Code of Ordinances and representations made by the Village's building officials, I understand that there is none. GUNSTER 600 Br)ckell Avenue, Suite 3500 • Miami, Florida 33131 1305-376-6000 1 Fax: 305-376-6010 1 www•gunster.corrl February 18, 2015 Ms. Cabrera Page 2 I do not anticipate that the Village will take any adverse action that interferes with Flamingo Way's private property rights, as such action would subject the Village of Bal Harbour and its residents to potential legal liability, including, but not limited to, damages, attorney's fees, and costs under the Bert J. Harris Act. Very truly y s, A. ortiiias Co nsel to Flamingo Way Enterprises, LLC cc: Village Attorney, Richard Jay Weiss (rweiss(a)wsh-law.com) Village Manager, Jorge M. Gonzalez (manager@balharbour.ort?) GUNSTER 600 BrickelI Avenue, Suite 3500 • Warn I, Florida 33131 1 305-376-6000 I. Fax: 305-376-6010 1 v .gunster.com