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.

21 pages

Cover Sheet of Petitioners Exhibit B For Reference

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CITY OF MIAMI
City Hall
3500 Pan American Drive
Miami, FL 33133
Commission Chambers
Thursday, November 20, 2014

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PZ.10
Class II Appeal - 3055 North Miami Avenue

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Commission
Wilfredo Gort, Chairman
Keon Hardemon, Vice Chair
Marc Sarnoff
Frank Carollo
Francis Suarez

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City Attorney's Office

Victoria Mendez, City Attorney

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On behalf of the Appellants

Paul Savage, Esq.

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MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600

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
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bodies to conduct a public hearing, unless prohibited

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department or authority must be based upon the

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the amount of any direct or indirect subsidy.

Footnote 3

City Commission

Meeting Minutes

November 21, 2013

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.

City of Miami

Page 78

Printed on 12/18/2013

PETITIONERS Exhibit B 82
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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

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permit; is that correct?

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Yes.

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

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please.
MR. GARCIA:

Thank you for allowing

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me to make a brief statement.

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it is important, and perhaps appropriate,

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to hopefully clarify something that may be

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confusing.

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And I think

And it is this.

I, as your Planning and Zoning

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Director, stand corrected by the court.

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want to assure this Commission that the

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mistake made by your Planning and Zoning

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Department is not to have overlooked a

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variance.

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issue.

That is a rather significant

And I'm here to tell you that has

MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600

PETITIONERS Exhibit B 83
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never happened and it will never happen,

at least under my watch.

that.

I'm positive of

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

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250,000 square feet, 3 berths total.

I'm humbled.

I, my predecessors, had

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always opined that that meant three was a

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minimum, and we could certainly exceed it.

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It turns out, as the court says, that the

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plain meaning of the word total makes it

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so that it cannot be interpreted

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reasonably as being more than three.

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stand corrected.

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We

We're humbled by it.

I'm here to tell you, though, and

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this is the important thing, that had this

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been correctly interpreted to mean that

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only three loading berths were required,

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you would have had before you, one year

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ago, exactly the project that you are

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affirming today.

That's all I have.

MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600

PETITIONERS Exhibit B 84
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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.

not recognized at this time.

MR. STERN:

VICE CHAIR HARDEMON:

You're

Yes, sir.

hearing has been closed.

The public
Right now we're

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on a matter of discussion for the

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Commissioners to consider whether they

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will vote yea or nay.

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Commissioners.

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No further -- I think the question

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has been called.

COMMISSIONER SUAREZ:

I think

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Francisco just -- you know, that was

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actually the most poignant statement you

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made the whole entire tire.

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VICE CHAIR HARDEMON:

It was

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beautiful, but that's what the courts are

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for, but the question has been called.

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City Clerk.

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THE CLERK:

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Would you like to call

the question or a roll call?

MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600

PETITIONERS Exhibit B 85

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VICE CHAIR HARDEMON:

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was called.

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COMMISSIONER SUAREZ:

He wants a roll

VICE CHAIR HARDEMON:

It was called

call.

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by Commissioner -- needs a roll call vote.

THE CLERK:

Commissioner Sarnoff?

COMMISSIONER SARNOFF:
THE CLERK:

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The question

Sure.

Yes.

Commissioner Hardemon --

or Vice Chair Hardemon?

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VICE CHAIRMAN HARDEMON:

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THE CLERK:

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CHAIRMAN GORT:

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THE CLERK:

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COMMISSIONER SUAREZ:

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THE CLERK:

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COMMISSIONER CAROLLO:

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THE CLERK:

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For.

Chair Gort?
Yes.

Commissioner Suarez?
Yes.

And Commissioner Carollo?

Yes.

The resolution passes

5/0.
VICE CHAIR HARDEMON:

Meeting

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

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MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600

RESPONDENT Walmarts Brief at 6

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

RESPONDENT Walmarts Brief at 7

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.

Respondent Walmarts Brief at 17

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.

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Petitioners Amended Petition for Writ of Ceriorari at 22

Petitioners Exhibit B Page 33

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calls them loading berths.

previous mind, was debatable.

longer debate that.

were five --

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That, in my
I will no

The court said there

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

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that the one on the upper story perhaps

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should not have been classified as loading

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berth.

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We had approved the project with four

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loading berths.

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berths have been turned into three.

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you are correct, Commissioner, as the

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plans show, where there were previously

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five loading berths, there are now three.

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And the result of that is that there will

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now be three properly dimensioned,

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properly striped areas.

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That said, five loading

And

And I'll now use the loading berth

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definition provided by the Appendix C of

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Miami 21, which refers back for full

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clarity to Zoning Ordinance 11000, as

MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600

Petitioners Exhibit B Page 34

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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

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staging areas to be used as appropriate,

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not for loading.

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COMMISSIONER SUAREZ:

And in your

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opinion, that's in conformity with our

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Code and with Miami 21?

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acceptable -- and that's walled off?

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

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

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MR. GARCIA:

And that's an

These three loading

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berths are fully contained within the

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building, fully shielded from view and

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protected by either walls or a gate, yes.

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COMMISSIONER SUAREZ:

And the other

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question I asked you was whether or not

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they had submitted a traffic management

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plan and you told me that they had.

MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600

Petitioners Amended Petition for Writ of Certiorari at Page 26

Petitioners Exhibit B Page 26

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application process would be different.

And I don't see that happening today.

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

MR. LYDECKER:

You've described it

better than I could.

agree.

quick word, Commissioner.

VICE CHAIR HARDEMON:

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And wholeheartedly

I would -- if I could just say one

You're

recognized, sure.
MR. LYDECKER:

And in that process,

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we're not moving one light switch.

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not moving a wall.

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thing.

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stays the same.

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three.

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Not one paint swatch.

Everything

We're just going to have

Period.

VICE CHAIR HARDEMON:

I'm willing to

entertain any motion of the Commission.

COMMISSIONER SARNOFF:

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

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MS. MENDEZ:

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COMMISSIONER SARNOFF:

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We are

We are not moving a

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I'll take a

Well -I would

move -VICE CHAIR HARDEMON:

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I apologize.

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hearing.

Oh, I'm sorry.

I did not have the public

I need at this time to open the

MIAMI-DADE COUNTY COURT REPORTERS, INC.

(305) 373-5600