Commissioner Wilfredo Gort
Commissioner Ken Russell
Commissioner Frank Carollo
Commissioner Francis Suarez
Commissioner Keon Hardemon

CC: Mayor Tomas Regalado

The City of Miami
3500 Pan American Drive
Miami, Florida 33133

Via Email

Subject: Need for City Commission Meeting to Address Flagstone
 Island Gardens’ March 13, 2017 MUSP Modification  Application

ONCE AGAIN…. we alert you to the possibility that your Director of Planning and Zoning may attempt to slide a warrant for a $1 billion project past the Commission without a proper review.

SO, ONCE AGAIN…we residents are compelled to summarize why this latest attempt at a MUSP Modification for Flagstone’s Island Gardens on Watson Island does not qualify for implementation as a warrant.

BEFORE enumerating our issues on the MUSP, and given the fact that the City of Miami has excused more than $28 million in income from a private developer, while foregoing another $103 million in revenue to the City over the past 11 years, this letter formally requests the Commission put the pending modification on its agenda, hold a hearing at which the public may be heard, and vote in favor of a formal review, consistent with Code provision 62/63. Even if the project were completed tomorrow, it would cause a minimum $5 million annual shortfall because the City will not be charging Charter-mandated fair market rent.

Sixteen years of delay and tens of millions in giveaways of taxpayer dollars to a private developer have created nothing short of a travesty involving the most valuable piece of public, waterfront property in Miami.

It’s way past time for the Commission to get involved on behalf of the residents you represent. It’s way past time you permitted members of the public to provide you a point of view different than that of City Staff.

It’s way past time you call a halt to the tactics of the City Staff designed to avoid transparency. Year after year the Commission has been kept in the dark:

  • In 2013 the General Counsel of the Florida Department of Environmental protection, in a formal memorandum of a meeting with Miami officials, noted that his suggestion to the City to seek another extension was rejected because the city official at the meeting “blamed ‘local politics,’ which in my mind indicated that there might not be the wholehearted City endorsement of the project that was initially indicated.”
  • From 2014 through 2017 the City has delayed and withheld public records, forcing courts to have to issue orders to obtain those documents, preventing in some instances, material information from reaching the Commission itself before critical votes. Final ruling is pending before the 3rd DCA
  • In 2014 an Assistant City Attorney misspoke – to put it charitably – by claiming the City would be liable for $58 million if it did not pass its recommendation in precisely the form the staff recommended. Having now sued the Ethics Commission for reopening its own vote means that action last year will be in court until the issue is moot.
  • In 2014, the City asked the courts to reject 80 years of precedent and prevent a trial on the merits of whether the City staff’s recommendation to the Commission, which when passed, violated its own charter. So offensive was that attempt to prevent a trial on the record of City behavior that the voters amended the City’s Charter to provide standing to residents who wish to make such claims – by an astounding 84% of the voters

NOW…ONCE AGAIN WITH THIS CURRENT MUSP Modification, Planning and Zoning is at it again.

  • In October, they ignored a Commissioner’s request to provide a written answer to CaCC’s allegations that the pending application could not be approved as a warrant. Director Garcia took 10 weeks to respond, and then distributed his written answer on the morning of a Commission meeting scheduled to consider their response – preventing Commissioners themselves from studying their response, and, of course, excluding the public yet again.
  • On January25 and again on February 16, CaCC wrote the Commission on changes to the proposed Modification for which we have yet to receive a response, even though P&Z persisted, prior to the latest modification application made public on March 13, to attempt amendments to avoid a Commission review and slip it through as a warrant. P&Z’s position on the March 13 submission is not yet public.
  • The most recent delay occurred when the application was submitted on March 3, but not provided to the public for 10 more days, creeping in stealth, towards the May 1 deadline when permits and start of construction are required.

Here are five material issues with the latest version of the MUSP Modification. (Please see the Attachment for details and legal citations.)

  1. Flagstone’s latest proposal asserts that its MUSP modification is “minor” in an attempt to avoid Commission consideration and in violation of the Miami 21 Code. Substituting a new term – FLR – Floor Land Ratio – for the Code’s criteria is more than nonsense. It is a knowing attempt to mislead the Commissioners.
  2. The proposed changes violate a Miami Code ordinance which defines substantial changes to include moving a previously approved building footprint by more than 10 feet in any horizontal direction. Flagstone proposes to expand the building footprint to include all of Tract C and portions of the parcel to the south.It attempts to evade the law by insisting on 4 measuring the “project footprint,” but that is not what the law mandates. Mr. Garcia’s previous efforts mislead the Commission by referencing a preMiami 21 code, which of course is unacceptable.
  3. Following our previous letters, Flagstone no longer explicitly seeks to add some 160,820 additional square feet of retail space as “hotel ancillary” square footage, which CaCC previously showed violated the Code. Mr. Garcia’s work around is to state that the City required “additional information” and that the “exact programming of the hotel is still being defined.” However, Flagstone’s latest application increases the size of the hotel space from 868,548 to 999,110, an increase of 130,000 square feet. Yet there is no explanation whatsoever on how any of that space will be utilized. The Commission and the public are entitled to these details, including probing whether this is just another way to sneak additional retail activity into the project.
  4. Flagstone’s latest proposal continues to include several other violations of the DDRI Development Order. These include conflicting statements regarding parking spaces and ignoring an earlier Commission definition that would have invoked regional impact.

A MAJOR NEW ISSUE THAT SHOULD WORRY YOU...

In addition, we note that the Florida Department of Transportation (FDOT) requires an extremely detailed and up-to-date traffic study to be conducted for this modification. It rejected the City’s proposal to rely on its 2004 traffic study, and it rejected the City’s plan to limit any new study to the limited area of the intersection of the Watson Island entrance and exit with MacArthur Causeway as Flagstone has done in the past. FDOT has officially insisted that the City also measure the impact of the project on several intersections along Biscayne Blvd and near I-395, as well as several intersections along the MacArthur and on Miami Beach. FDOT noted:

“More than a decade has passed since their traffic study, and traffic volumes and the roadway network have changed,” and the project “has been dormant for so long.”

FDOT’s position is based on Chapter 163, Florida Statutes. If the Commission were to allow city staff to rubber-stamp Flagstone’s effort to treat its current MUSP modification request as “minor” and thus by-pass the traffic study requirement of Miami 21, it will be ignoring State law.

Next Steps…

In addition to requesting a public airing of this whole mess, CaCC also formally asks the Commission to place the Flagstone MUSP Modification on its agenda in order to decide whether to conduct a formal review before anything is implemented.

Of course you will be met with staff excuses about the dangers of delay and warnings that any deviation from the current process as it may take too much time to meet the May 1 deadline. Mighty strange arguments considering that this particular Modification has been in process since the fall of 2014. Yes, since 2014—a full 2 1/2 years.

The true reason the process is taking so long is that once again Flagstone and the City have acted irresponsibly and have been challenged on it. Now, with the May 1 deadline looming they’re fast running out of time. Their only “out” is to issue a warrant rather than go through a lawful, publicly transparent process.

As sure as the sun rises, the Commission will also be hit by the issue of “liability” – a perennial favorite that is always trotted out by the staff when the going gets tough. Don’t fall for it. Instead, let’s put that issue to rest once and for all by retaining qualified outside counsel to render an opinion.

We ask the Commission to – at a minimum -- give the public an opportunity to share its view, including views of experts, before perpetuating what has been a shameful chapter in the history of our City.

Respectfully,

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Roger M. Craver, President

LETTER TO COMMISSIONERS                    ATTACHMENT              March 30, 2017

DETAILED POINTS AND CITATIONS

Flagstone submitted its new proposal as a direct consequence of the Coalition’s letters to the Commission. CaCC had identified several illegalities and inaccuracies in the City staff’s handling of and recommendations on its previous proposed MUSP modification, including but not limited to the staff’s acquiescence in Flagstone’s aim of having the previous modification reviewed as a “minor modification.”

Despite CACC’s objections, Flagstone’s new submission states that “this project fully qualifies as a minor modification (sic).” This is inaccurate.

Like Flagstone’s earlier proposal addressed in our November 21, January 25, and February 15 letters, this one also seeks a substantial modification to the project under the City of Miami Code, and cannot be reviewed under the warrant process. Instead, it must be reviewed under the “exception process with public input, current traffic and other studies, and multi-layered administrative and commission review.

As of this writing, we have not received the City staff’s recommendation regarding the processing of Flagstone’s March 2017 MUSP modification. This is troubling for many reasons, including that we have been making public records requests to the Planning and Zoning Department (and others) two to three times a week, yet less than five weeks before Flagstone’s May 1, 2017 deadline to commence construction of the parking and retail phase of the project, which also requires all permits and plans to be approved in advance, no permits are in place and there is no public indication of how the administration has determined to proceed with making these decisions.

If the City staff rubber stamps Flagstone’s bogus analysis and fails to apply city and state law as written, the resulting traffic, environmental, financial, and legal consequences will be catastrophic. That is why we insist the commission review the issues now and conduct a full public hearing on the administration’s actions and the project.

1.    Development Capacity

P&Z’s determination that Flagstone’s MUSP modification can be considered as a “minor modification” via the warrant process violates section 7.1.3.5 of the Miami 21 Code because the latest proposal would increase “overall development capacity,” which is defined as “floor area.” 

Our calculation shows that the overall development capacity is increased by at least 70,000 square feet, if not more. Although the latest proposal purports to eliminate 130,000 square feet of parking, in order to arrive at a nominal total development capacity of 1,879,754, compared to 1,879,757 from “2007,” footnote 3 at page A 001.2 states: “Parking below the marina facilities falls below the flood plain and therefore is not included in the calculations.” At a minimum, therefore, the parking colored in pink on Page A 006, listed as “beneath flood plain elevation,” and estimated to be at least 70,000 square feet (based on the number of spaces identified), results in an increase in development capacity as that term is defined in Miami 21, and precludes consideration as a warrant.

“Floor area,” as we have repeatedly explained, is a defined term that includes parking and other areas that Flagstone’s working papers attempted to exclude from its calculation of development capacity. Instead, FLR, which the latest Flagstone MUSP Modification proposal emphasizes at page A 001.1, and which the January 25, 2017 Garcia Memorandum used in several confusing sentences in its “Response,” is simply not relevant to the definition of development capacity under Miami 21 and cannot be relied on to allow consideration as a “non-substantial” modification.

The January 25 Garcia Memorandum referenced FLR as a bootstrap argument in reference to what was “previously approved,” which we showed


 

Based on information we obtained under Chapter 119, it is also apparent that Flagstone’s previous MUSP modification application improperly excluded 111,131 square feet of “air conditioned and skylit walkways” from being counted in the 2016 retail square footage and development capacity calculation. The Commission needs to probe whether or not that omission remains.

______________________________________________

was an outright misrepresentation of the relevant criteria. Its statement that the calculation of FLR shall not apply to that portion of the building entirely below the base flood elevation is, similarly, irrelevant to whether the amendment increases “overall development capacity” under Miami 21 or the Code. There is simply nothing about FLR in Miami 21 or the City of Miami Code of Ordinances which uses “FLR” as a factor in determining “overall development capacity” or “floor area” in order to deem this amendment “non-substantial.”

2.    Building Footprint. 

CACC showed that Flagstone’s previous proposed MUSP modification would move the building footprint more than 10 feet, which is a “substantial change” under Section 2215.1 of the City of Miami Code of Ordinances, such that consideration as a minor modification is not allowed.

In response, the Garcia Memorandum stated: “The reference to the 11000 Code, Section 2215.1, is not applicable, because PZ correctly uses the current Code, Miami 21. We showed in our February 15, 2017 reply that the Garcia Memorandum was flatly incorrect.

Section 2215.1 was enacted as part of Ordinance No. 10771/10877/12467 by the City Commission on 7-26-90/4-25-91/12-18-03 and remains a part of the City’s Zoning Code. In contrast, Section 11000 of the previous Code was (mostly) eliminated and replaced by the adoption of Miami 21 effective May 20, 2010. Section 2215.1 remains, along with Section 7.1.3.5(d), an effective limitation on the City’s authority to consider a permit modification to be “non-substantial.”

In that regard, Flagstone’s latest MUSP Modification request also violates Section 2215.1 and cannot qualify as a non-substantial modification. The 2004 building footprint was 273,605 square feet. The March 3, 2017 building footprint is 403,893 square feet, an increase of more than 130,000 square feet. As is readily visible from the proposal submitted, at page A 002, the building footprint expands substantially onto Parcel C, and to the south of the property. Pursuant to section 2215.1, this application cannot be processed as a “minor modification.”

Further, the new plan for the parking garage expands into the area that was the at-grade public promenade along the bay, representing a greater than 10’ horizontal expansion of the building. Moreover, a question now arises as the promenade is now elevated above the structure and must provide ADA access and egress.

3.    Remaining Questions About Hotel Square Footage and Addition of 130,000 Square Feet

Flagstone’s latest application increases the size of the hotel space from 868,548 to 999,110, an increase of 130,000 square feet. Yet there is no explanation whatever how any of that space will be utilized. The Commission and the public are entitled to these details, including probing whether this is just another way to sneak additional retail activity on the project.

CACC’s analysis of Flagstone’s previous applications showed that they proposed to add well over 100,000 additional retail space, without legal authority ( and in violation of the DDRI). At the time, Mr. Garcia professed his complete trust in Flagstone’s representation that “these uses are in fact ancillary and not retail in nature,” yet acknowledged and agreed “that specific ancillary uses need to be provided and [P&Z staff] has requested that the applicant provide this information,” and reported that “the exact programming of the hotel is still being determined.” Now Flagstone has, at least on the surface, retreated from attempting to add this additional retail and associated parking. So much for Mr. Garcia’s “complete trust” in Flagstone’s representations. Given this history, it is imperative that the Commission require complete accounting for the uses of the hotel space.

In sum, the latest Flagstone MUSP Modification request, at page A 001.1, states:

“All of the above listed codes and regulations were used in the process to determine that this project fully complies as a minor midification (sic).

“The project not only complies under the previous code (Ordinance 11000) but also complies with the new MIAMI 21 guidelines.

“In either case the proposed design does not deviate from previous approvals in regards to size and volume.”

These statements are not correct. It is the Commission’s responsibility to flush out the truth and insist on the proper application of local and state laws.

4. Violation of DDRI Development Order.

There are several issues here, and the few responses previously provided were inaccurate or illogical. It does appear that Flagstone’s latest application reduces the parking spaces to around 1500, which is below the 1700 limit in the DDRI Order. However, as for other issues CACC raised which require a NOPC for the several DDRI deviations CACC cites, with reference to the standards of section 380.06(19), the Garcia Memorandum previously ignored the clear findings of the City Commission, which, by identifying the elements of the approved plan that would require an NOPC if changed, the City Commission defined proposed changes that would “create a reasonable likelihood of additional regional impact.” Section 380.06(19), Florida Statutes.

5.    FDOT Requirements for Updated and Detailed Traffic Study

Emails dating back to January (that were only recently provided in response to CACC’s public records request) show that under state law guidelines, the Florida Department of Transportation (FDOT) requires an extremely detailed and up to date traffic study to be conducted for the Flagstone project. Hence, if the City endorses Flagstone’s efforts to evade a traffic study requirement by having its application treated as a non-substantial modification, it would violate state law as well as the trust reposed by the residents on the Commission for proper enforcement of local and state law.

The City asked if it could rely on the 2004 traffic study from the original MUSP approval, providing “the 2004 site plan and the new proposed plan,” and representing that: “The proposed site plan have some changes, however the square footage and units are still the same. No land use changes are required. Therefore the exiting land use and future are the same and no change of intensity as they are not changing the square footage and number of units.”

FDOT rejected the City’s request, stating that a new and comprehensive traffic study was necessary. The basis of the requirement is not the specific size or make-up of the project, but the fact that 13 years have passed since the original MUSP traffic study, and conditions have substantially changed in Miami and Miami Beach: FDOT noted: “More than a decade has passed since their traffic study, and traffic volumes and the roadway network have changed,” and the project “has been dormant for so long.” FDOT’s position is based on Chapter 163, Florida Statutes. If the Commission were to allow city staff to rubber-stamp Flagstone’s effort to treat its current MUSP modification request as “minor” and thus by-pass the traffic study requirement of Miami 21, it would also be ignoring State law.

The City also asked that, if a new traffic study were conducted, it could be limited to the area of the intersection of the Watson Island entrance and exit from with MacArthur Causeway as Flagstone has done in the past. FDOT rejected this as well, noting that a number of considerations, including I-395’s status as Strategic Intermodal Systems (SIS) facilities, require a substantially more comprehensive impact analysis, to determine what improvements will be necessary to mitigate the impact, including:

--AM and PM peak hour evaluation of the project’s vehicular impact on the on-and off-ramps to MacArthur Causeway, using vehicular trips, rather than person-trips:

-- AM and PM peak hour queuing analysis for impacted ramps and intersections, Among the intersections FDOT says must be analyzed are several important intersections that Flagstone would choose to ignore in its study, including:

--  NE 13th Street at North Bayshore Drive

--  NE 13th Street at Biscayne Blvd.

--  NE 11th Terrace at Biscayne Blvd. (including the on-ramp to I-395)

--  State Road AIA at Alton Road.

-- AM and PM peak hour signalized intersection analyses for the intersections of MacArthur Causeway and Fountain Street, Bridge Road, and Terminal Island, including queuing analysis.

In addition, our expert’s analysis indicates that Flagstone’s representation that its proposed methodology “is consistent with the methodology used for the previously approved studies” is misleading as the scope and breadth of the study area used in the prior studies did not and does not adequately evaluate the impacts on the Causeway and into the City of Miami Beach.

FDOT’s recommendations are not surprising because we have been pointing out, through independent experts we have retained at our own expense, that Flagstone’s previous traffic studies were grossly deficient under state law and professional standards.

The areas that FDOT has designated as needing to be analyzed fully prior to approval of this project are intersections and roadways that previous studies, including those conducted by the City of Miami Beach, show significant capacity deficits as a result of the traffic that would be caused by the Flagstone project.