EXHIBIT B

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

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-­DADE

COUNTY, FLORIDA

APPELLATE DIVISION

CASE NO. 14-­492-­AP

Resolution/File 13-­01030iia

JACOB PFEFFER, Carolina Guttierez et. al.

Petitioners, v. CITY OF MIAMI, FLORIDA, WAL-­MART STORES EAST, LP Respondents.

AMICUS CURATE BRIEF OF GRANT STERN SUPPORTING PETITIONERS JACOB PFEFFER, ET. AL.

Grant Stern, Pro Se THE LAB MIAMI 400 NW 26th Street

Miami, Florida 33127 Primary Service: grantstern@gmail.com

Telephone: (305) 219-­0326

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TABLE OF CONTENTS

Table of Authorities . . . . . . iii

Identity of Amicus Curae . . . . . 1

Summary of Argument . . . . . 1

Amicus Curae’s Interest . . . . . 1

Arguments . . . . . . . 2

Right to Public Hearing . . . . . 3

De Novo Hearing Mandated . . . . . 6

Truth in Government . . . . . 8

Due Process . . . . . . . 11

Res Judicata and Substantive Matters . . . 12

Conclusion . . . . . . . 18

Certificate of Service . . . . . . 19

Certificate of Compliance . . . . . 20

Appendix . . . . . . . . pp 1-­21

Exhibits . . . . . . . . D-­G

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TABLE OF AUTHORITIES Cases City of Deerfield Beach vs. Valiant . . . . 4, 18 419 So. 2nd 624 (Fla. 1982)

Coral Reef Nurseries, Inc. v. Babcock Co. . . . . 3, 9, 13 410 So.2d 648, 652 (Fla. 3d DCA 1982) Metropolitan Dade County Board of County . . . 13 Commissioners v. Rockmatt Corporation 231 So.2d at 44. (Fla. 3d DCA 1970) Other Authorities The Miami-­Dade County Home Rule Charter Citizen’s Bill of Rights, (A) (2) . . . . . 2, 9 , 11 Citizen’s Bill of Rights, (A) (8) . . . . . 2, 3, 18 The United States Constitution Bill of Rights 5th amendment . . . . . 12 14th Amendment . . . . . 12

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Comes now humbly before this court Grant Stern, a natural person Pro Se as

Amicus Curae, pursuant to the Florida Rule of Appellate Procedure 9.370(a)(b)

and 9.210(b), to brief this body Amicus Curae with his expertise in all aspects of

realty, real estate matters and more particularly in the Zoning and Ordinances

related to Midtown Miami as Amicus Curae

Identity of Amicus Curae

Amicus Curae Stern (“Amicus”) is a resident of Miami's nearby Edgewater

neighborhood who maintains an office ½ Mile from the proposed location of

Walmart at 3055 N Miami Avenue and whose residence lies ¾ of one mile from

same location. Amicus has spent 3 and ½ years fact checking Walmart’s

application, whereby he has developed a certain level of expertise regarding the

zoning rules and regulations at question in this case worth sharing with the

honorable court.

Amicus Curae’s Interest in Matters At Hand

Amicus has further interest in this case in his frequent public hearing testimony to

the City of Miami Commission on this matter, particularly on November 20th,

2014 which public hearing testimony was included in Petitioner’s Amended Brief

at Pages 18-­19 whereupon Petitioner’s counsel noted that Movant was an

interested party. Neither Respondent disputed Petitioner’s counsel’s assertion of

interest vested in Amicus Curae Stern in their separate Responses to Petitioners’

Writ for Ceriorari.

Amicus has attended and/or commented on the record when allowed at

each public hearing listed in Respondent’s Motion to Expedite Decision at Page 2

as well as attended oral arguments in Pfeffer I and has reviewed all briefs and

motions submitted in the matter at hand, in Pfeffer I and all versions of presented

plans and applications by Respondent Walmart. Amicus is submitting this brief

because he believes his insights born of tireless research and a personal video

recorded interview with the Planning Director of the City of Miami will provide

an additional viewpoint with respect to the issues presented. Lastly, Amicus has

opined upon and reported upon this project in both the Miami Herald and 1

Huffington Post , multiple times in the last 3+ years. 2

ARGUMENTS

The City of Miami Commission violated Petitioners Citizen’s Rights as

Enumerated in the Miami-­Dade County Home Rule Charter (A)(8) Right to a

Public Hearing and (A)(2) Truth In Government in the course of their Hearing of

the matter at hand on November 20th, 2014. The City of Miami Commission’s

review was expressly not De Novo in nature, contrary to the Mandate of this

1 http://www.miamiherald.com/news/local/community/miami-­dade/midtown/article1939299.html 2 http://www.huffingtonpost.com/grant-­stern/

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court in Pfeffer I. Both Respondents Walmart and the City of Miami caused

their own current timing problems cited in their Motion to Expedite Findings by

fighting the definition of the word “Total” for 11 solid months. The well

established doctrine of administrative res judicata should have prevented them

from submitting a substantially similar plan for Commission review by their own

admission, or obtaining a new finding of fact by that body, with substantially the

same plan. Lastly, Respondents submitted and approved a plan containing a very

explicit Variance contrary to published ordinance, in direct contravention of the

only competent substantial evidence submitted, and without following established

parameters for evaluation of a Variance zoning application enumerated in Pfeffer

I at page 7 by this court.

Right to Public Hearing

The record clearly indicates that Respondents violated Petitioners rights under the

Dade County Home Rule Charter Citizen’s Bill of Rights (A)(8) during the

November 20th, 2014 meeting of the City of Miami Commission sitting in a

Quasi-­Judicial capacity which states specifically: “At any zoning or other hearing

in which review is exclusively by certiorari, a party or his counsel shall be

entitled to present his case or defense by oral or documentary evidence, to submit

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rebuttal evidence, and to conduct such cross-­examination as may be required for

a full and true disclosure of the facts.” (Underlining is Author’s emphasis).

This violation of Petitioners Miami-­Dade County Charter Citizen’s Bill of

Rights constitutes clear evidence supporting Petitioners claims for relief under

item (i) of the three part standards set forth in Petitioners’ Amended Petition for

Ceriorari, Page 22 via City of Deerfield Beach vs. Valiant, 419 So. 2nd 624 (Fla.

1982), et. al.

Prior to the Commission’s vote to deny the appeal and (illegally) grant a

new Special Class II Permit noted at Petitioners’ Exhibit B 82-­7 through 85-­22,

the Vice Chair once more gave the floor to City of Miami Planning Director

Francisco Garcia, who proceeded to make an impassioned speech in rebuttal of

Petitioners’ arguments, and further quoted in Respondent Walmart’s Response to

Petition for Certiorari Brief at Page 6-­7. Subsequent to the Planning Director’s

testimony at Petitioners’ Exhibit B 82-­7 thru 83-­25 the following exchange

occurred:

MR. STERN: The public record, as I understand it, is reopened after he

speaks?

VICE CHAIR HARDEMON: Sir, I will not -­-­ I will not allow you to

speak. You're not recognized at this time.

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MR. STERN: Yes, sir.

VICE CHAIR HARDEMON: The public hearing has been closed. Right

now we're on a matter of discussion for the Commissioners to consider

whether they will vote yea or nay. Commissioners. No further -­-­ I think the

question has been called.

COMMISSIONER SUAREZ: I think Francisco just -­-­ you know, that was

actually the most poignant statement you made the whole entire tire.

VICE CHAIR HARDEMON: It was beautiful

Clearly, the commission was moved by the Planning Director’s compelling mea

culpa, as expressly spoken into the record by both the presiding officer and

another commissioner who commented unbidden on the powerful nature of this

persuasive testimony to the Commission.

Ironically, the exact same situation arose in the prior hearing by the

Commission on November 21st, 2013, the record of which has been entered into

the proceedings of Pfeffer I and re-­entered into the record of this case and whose

decision was quashed in Pfeffer I. The Chair of the 2014 meeting presided over

that 2013 hearing as Vice Chair at which time counsel for an objector entered

precisely the same claim on the record : 3

3 Excerpted from Page 78 City of Miami Legistar Document: 2611_M_City_Commission_13-­11-­21_Verbatim_Minutes_(Long).pdf

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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.

De Novo Hearing Mandated by Pfeffer I

This Court’s mandate in Pfeffer I clearly noted that all appeals to the City

of Miami Commission of a Special Class II Permit are to be held “De Novo” or

from scratch. I’ll leave the petitioners to argue the demerits of a “De Novo”

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hearing whose resolution is written at the time of notice, and whose ‘approval’ to

be debated isn’t submitted until the Saturday before the hearing, but AFTER the

notices have been sent.

To Wit, Counsel for the Respondents, City of Miami Attorney Victoria

Mendez announced prior to scheduling of the above described Commission

Hearing that any hearing would be limited in scope within Exhibit D, precisely

the opposite of a “from scratch” hearing.

This legal opinion was then further enumerated at the above referenced

City of Miami Commission Hearing on November 20th, 2014, when City

Attorney Victoria Mendez acting in her capacity as counsel to the Commission

failed to follow this court’s mandate and advised the Commission as per

Petitioners’ Exhibit B 5-­6:

MS. MENDEZ: Based on the ruling of the appellate division of the circuit court, the

case is back now before this Commission on the limited issue to consider the appeal

as it relates to the number of loading berths only. So the amount of loading berths.

So the...

CHAIRMAN GORT: They're appealing, because they want to see the five instead

of the three by the Judge?

MS. MENDEZ: Well -­-­

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CHAIRMAN GORT: They want to see the five instead of three. I don't understand,

the Judge says not five, but three, but they're appealing the Judge's decision, which

means they want five then?

MS. MENDEZ: Well, it's back here, because the Court has said to bring it back, but,

more importantly, I just want this Commission to know that the de novo hearing, so

the hearing from scratch that you're going to listen to, is only supposed to be on

whether there should be three berths or not.

CHAIRMAN GORT: Okay.

MS. MENDEZ: Nothing more, nothing less.

Respondents Walmart Stores even noted in their Response to Petition for

Ceriorari that case law supports Petitioners and “developers and objectors claims

to the opportunity to present new evidence” on Page 17. [emphasis on objectors

by author]

The City of Miami Commission’s failure to conduct a De Novo hearing

constitutes further evidence supporting Petitioners arguments in their Amended

Petition for Ceriorari Page 22, a claim of violation standard (i).

Truth in Government

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Miami-­Dade County Home Rule Charter Citizen’s Bill of Rights (A) (2) 4

entitles all Miami-­Dade residents to accurate factual statements, and further

protects them from factual omissions.

Firstly, City of Miami’s Planning Director made up a new definition of the

term “berths” in Petitioners Exhibit B 34-­1 noting on the record:

“loading berths in this context means that these are the sole spaces where

trucks or other delivery vehicles may station themselves so as to load and

unload merchandise. Because the number of loading berths is now three,

the area that was previously set aside for the other two loading berths now

function as additional space for staging areas to be used as appropriate, not

for loading.”

This violated the Petitioners charter rights when their public official knowingly

testified of a novel definition, unsupported by any properly enacted ordinance,

then knowingly omitted the actual written definition of “berths” while correctly

citing the Chapter and Verse of where such definition properly is found. 5

4 Truth in Government. No County or municipal official or employee shall knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the public 5 Further details of the definition are enumerated in the section of this Brief entitled “Res Judicata and Substantive Matters” and the definition may be found in City of Miami Ordinances, Article 11000, Section 2500 Definitions

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Secondly, it is certainly disingenuous at best to claim, as City Attorney

Mendez did that a “De Novo” hearing on a matter as complex as a 200,000

square foot Walmart Super Center may only involve the limited matter of loading

berths. The Chair of the Commission expressed his misunderstanding at the

instructions of counsel, and for good reason -­ as counsel instructed the

commission to view narrow evidence and decide “three berths or not”, then

declared that a “De Novo hearing from scratch” was happening but only on the

matter of the births. This contradiction is a gross misinterpretation of this Court’s

Mandate of Pfeffer I. As a public servant, an attorney should disseminate only the

facts when queried by a public body, not assert two conflicting sets of facts

equally, making it thereby impossible at the outset for a fair public hearing to be

conducted.

City Attorney Mendez’s contradictory definition of “De Novo” knowingly

furnished false information on a public matter, then knowingly omitted the

significant fact that Petitioners and “objectors” had a right to introduce new

evidence both in contravention of (A)(2) at the November 20th, 2014 hearing of 6

the Commission which has sent matters to this court. Further omitting that narrow

6 Citizen’s Bill of Rights as enumerated at (A)(2) in the Miami-­Dade County Home Rule Charter

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and “De Novo” are opposites deprived the Commission of proper counsel to

follow the Mandate of Pfeffer I at page 3.

While the City Attorney acts as counsel to the City Commission, they are

still a municipal employee, therefore at Public Hearing still subject to the

requirements of Miami-­Dade County Home Rule Charter Citizen’s Bill of Rights

(A) (2) when giving requested information to members of the public which

presumably means informing members of the public attending the hearing too.

Due Process

It appears that Respondents have grossly misinterpreted the mandate of

Pfeffer I at page 8 for “proceedings consistent herein” by attempting to continue a

Special Class II permit, permanently tarnishing the possibility of the city

considering such proceedings in a manner consistent with its own published

ordinances, for the specify that Public Hearings be held prior to any quasi-­judicial

appeals, which is further impossible in this case.

The City of Miami’s Planning Director personally offered video recorded

guidance specific to this case makes abundantly clear the procedural difference 7

between Special Class II and Variance applications requirements for public 8

7 Found publicly online in two parts: https://www.youtube.com/watch?v=XasVHX8Vk9M and https://www.youtube.com/watch?v=b4nnh2QmQfk 8 Miami21, Appendix C, Section 627.2.3.2. Considerations in making Class II Special Permit determinations specifies that “Any variances (as defined in Article 19) sought from the provisions of the SD 27 regulations shall require such

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hearing prior to approval. A transcript of those videos has been attached as

Exhibit E to this brief, as well as copies of the videos themselves at Exhibit F.

This raises the spectre that Petitioners’ Amended Petition for Writ of

Certiorari at Page 26, Item 3 identifies an area where Respondents in the City of

Miami have run afoul of the Constitutional doctrine of substantive due process as

found in the 5th and 14th Amendments of the United States Constitution by

proceeding forth with a further approval of the same permit previously quashed at

appeal, and then appealed again, prior to the required Public Hearing on the

matter.

In short, how can the Petitioners expect that a 3rd hearing in front of the

same panel, the facts being so often and easily misinterpreted by said panel’s

counsel and staff can possibly be unbiased and follow this court’s mandate when

careful inspection shows the numerous flaws which once spoken, can never be

recalled by the providers of such information.

Res Judicata and Substantive Matters

Respondent’s application for a Special Class II permit still contains substantive

variances from the applicable zoning regulations of Miami21’s Appendix C as

deviation to be considered within the process for a Major Use Special Permit as defined in Article 17” referent to Miami Ordinance 11000

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noted by objectors including Movant and Petitioners in the previously referenced

Commssion Hearing of November 20th, 2014.

Resubmission of substantially the same plan violates the doctrine of

‘administrative res judicata’ as enumerated in Metropolitan Dade County Board 9

of County Commissioners v. Rockmatt Corporation, supra, 231 So.2d at 44. and

applicable to quasi-­judicial review of zoning decisions as further established

under Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.2d 648, 652 (Fla. 3d

DCA 1982) in a similar case in which the 3rd DCA Ruled “The doctrine of

administrative res judicata is firmly entrenched as part of the decisional law of

the State of Florida in relation to zoning cases.” Walmart’s resubmission of a

“substantially similar” plan after the ruling in Pfeffer I clearly denotes that the

three esteemed jurists of this panel found in fact five (5) loading berths in

Walmart’s plan, in contravention to the “total” of three (3) required by code.

Walmart’s counsel openly admits in Petitioners Exhibit B 47-­10:

MR. LYDECKER: We're not moving one light switch. We are not moving a wall.

We are not moving a thing.

9 “The doctrine is ‘applicable to rulings or decisions of administrative bodies (citation omitted), and to rulings of such bodies dealing with zoning regulations unless it can be shown that since the earlier ruling thereon there has been a

substantial change of circumstances relating to the subject matter with which the ruling was concerned, sufficient to

prompt a different or contrary determination’”

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Walmart’s novel idea of creating an ill defined “staging area” is transparently wrong . Furthermore, Walmart’s definition relies on the Planning Director’s 10

new and unique definition of “berths” , while Miami’s Zoning Article 11000, 11

Sec. 2500 defines berths:

-­ Berth. See Stall/berth or Loading facility, offstreet or Loading space,

offstreet.

-­ Loading facility, offstreet. A building, structure, and area used in the

operation of terminal facility. See also Loading space, offstreet and

Berth/stall.

-­ Loading space, offstreet. An area in which goods and products are moved

on and off a vehicle, including the stall or berth and the apron or

maneuvering room incidental thereto.

There’s no definition of this staging “area” within Miami’s Zoning Article

11000, nor the word “staging” found within Miami21’s Appendix C, nor in the

body of Miami21. However, the definition of “Loading space, offstreet” and

“Loading Facility” is clearly applicable to Walmart’s plan to create an “area” for

“staging” since it provides for five (5) distinct and separate “loading spaces”

including a minimum of the three (3) identified by the applicant on the ground

level, the stall (still extant and on the plans which haven’t changed even a light

switch) to make a total of four (4) berths downstairs and a loading facility for an

“area” on the second level berth number five (5), which would in all reality be

10 Petitioners Exhibit B 62-­11 11 Petitioners Exhibit B 33-­22

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used for unloading of goods since there’s over 25,000 sq. ft. of ground level retail

planned, whose stores would have no other method of supply, except this

screened area (created originally thusly especially to comply with district loading

standards), which would make impossible the city’s enforcement of a “no

loading” policy behind closed doors in a private area -­ which at any rate the City

of Miami failed to condition in its permit as well.

The unpalatable alternative is, allowing future zoning applicants to simply

label away physical defects in their plans would allow someone to create a 40

loading bay warehouse in this district simply by pointing to the many “areas” and

defining them as bathing “areas” or athletics “areas” all of which are in fact an

“area in which goods and products are moved on and off a vehicle, including the

stall or berth and the apron or maneuvering room incidental thereto.” but

otherwise labeled on a plan. Such allowance of Variances would allow any

applicant to raise the intensity of land use in conjunction with a Class II Special

Permit application by simply bypassing the Variance process each time for a

secret administrative decision. This concurs with Petitioners Amended Petition

for Certiorari Page 22, standards (ii) and (iii) and constitutes by their lack of

competent evidence additionally, a further departure from the essential elements

of the law.

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Finally, Walmart’s application contains yet another major variance from

the Miami21, Appendix C zoning code in permitting an illegal second level

parking garage entrance on North Miami Avenue (abutting the project’s west

side) in direct contravention of Miami21 Appendix C regulations requiring all 12

corners of structures facing public open space have entrances which allow 13

pedestrians to enter ground level space. Factual evidence to this effect was

presented orally and in writing (see Exhibit G) as part of the record of the

November 20th, 2014 hearing to the City of Miami Commission and as noted in

Petitioners’ Exhibit B 65-­20:

Stern: All ground level space intended designed for pedestrian-­oriented

uses shall have external entrances directly accessible from public sidewalk

space. At least one external entrance shall be located along the frontage of

the primary street , or on the corner intersection of the primary street and 14

any other street or -­-­ and this is the important part, or the frontage of public

open space.

12 Miami21 Appendix C, Section 627.2.10.1.a 13 Miami21, Appendex C, Page C.6, Definitions: “Open Space: Any parcel of land or water, excluding public right of way, that is at ground level or open to the sky and designed and intended for the common use of the residents, tenant and the general public and may include parks, linear parks, plazas, and landscape areas.” 14 SD 27.2 Design Standards define “Primary Streets” in page 6, including N. Miami Avenue, the street in question

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Factual handouts distributed to each Commissioner and entered into the record

note, that there is a linear “private park” abutting the entire owned by the

Midtown Community Development District (“Midtown CDD”), which is a

sub-­governmental agency which abuts the entire western boundary of Walmart’s

proposed project. Evidence of the Midtown CDD’s ownership, legal description

and position of the property were provided in the form of a print out from the

Miami-­Dade County Property Tax Search of Folio 01-­3125-­078-­0061 which is 15

classified as a “Private Park” and “Common Area” both of which meet the 16

definition of “Open Space”.

Walmart’s current plans call for a second level parking garage entrance

which being vehicular is inaccessible by the sidewalk per district regulations.

This constitutes yet another illegal variance in Walmart’s application which the

City of Miami’s Planning Director has ignored and allowed to infect the

application for Class II Special Permit. For the same reason this court found in

favor of Petitioners in Pfeffer 1 at 7, Walmart’s plan must fail in this court as

well. Lastly, neither Respondent presented, nor rebutted the competent

substantial evidence presented at the November 20th, 2014 Commission hearing.

15 http://www.miamidade.gov/propertysearch/index.html 16 To avoid any confusion Folio 01-­3125-­078-­0061 has a legal description of “BUENA VISTA WEST PB 161-­78 T-­21737 PORT OF TR F DESC BEG 474.75FTS & 398.07FTW OF NE COR OF TR F CONT S 88 DEG W 8.91FT N 01 DEG W 437.76FT NELY AD 22.12FT S 01 DEG E 457.09FT TO POB”

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Neither Respondents, nor commission did address the written and oral

claimsinfront of that body, claims of a serious variance from the district zoning

regulations, such lack of competent substantial evidence contravening objectors’

factual presentations entered into the record fails to meet the standards of review

enumerated by Petitioners’ Amended Petition for Writ of Certiorari at Page 22

and further deprives the Petitioners of their Citizen’s Rights under Miami-­Dade

County Home Rule Charter (A)(8) that “The decision of any such agency, board,

department or authority must be based upon the facts in the record.”.

Conclusion

Based on the foregoing reasons and legal authority cited, certiorari is both

necessary and justified to quash the City’s denial of the appeal of the Class II

Special Permit, without further remand for action and further expressly bar

applicant from re-­application within 12 months for substantially the same design

or permit hereafter under Section 1310, of Article 11000 of the City of Miami’s

Municipal Ordinances from the date of this court’s decision.

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CERTIFICATE OF SERVICE

I certify that a copy of this request was served by email on March 23rd,

2015 to: Assistant City Attorney, John A. Greco, Esq., 44 S.W. 2nd Avenue, Suite

945, Miami, Florida 33130 (law@miamigov.com;; jagreco@miamigov.com) and

Richard J. Lydecker, Esq. and Joan Carlos Wizel, Esq., 1221 Brickell Avenue,

Floor 19, Miami, Florida 33131 (rl@lydeckerdiaz.com;; jcw@lydeckerdiaz.com,

manny@lydeckerdiaz.com).

______________________________ Grant Stern, Pro Se

CERTIFICATE OF COMPLIANCE

This brief complies with the font requirements of Florida Rules of Appellate

Procedure. It was typed using Times New Roman 14-­point font.

________________________________

Grant Stern, Pro Se

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