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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

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
i

TABLE OF CONTENTS

Table of Authorities

iii

Identity of Amicus Curae

Summary of Argument

Amicus Curaes Interest

Arguments

Right to Public Hearing

De Novo Hearing Mandated .

Truth in Government

11

Res Judicata and Substantive Matters

12

Conclusion

Due Process

18

Certificate of Service .

19

Certificate of Compliance

20

Appendix .

pp 1-21

Exhibits .

D-G


ii

TABLE OF AUTHORITIES

Cases

City of Deerfield Beach vs. Valiant
.
419 So. 2nd 624 (Fla. 1982)

Coral Reef Nurseries, Inc. v. Babcock Co. .
410 So.2d 648, 652 (Fla. 3d DCA 1982)

Metropolitan Dade County Board of County
Commissioners v. Rockmatt Corporation
231 So.2d at 44. (Fla. 3d DCA 1970)


Other Authorities

The Miami-Dade County Home Rule Charter

Citizens Bill of Rights, (A) (2)
.
.

Citizens Bill of Rights, (A) (8)
.
.

The United States Constitution

Bill of Rights 5th amendment
.
.
14th Amendment
.
.


iii

4, 18

3, 9, 13

13

2, 9 , 11

2, 3, 18

.
.

.
.

.
.

12
12

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 Mile from the proposed location of
Walmart at 3055 N Miami Avenue and whose residence lies of one mile from
same location. Amicus has spent 3 and years fact checking Walmarts
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 Curaes 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 Petitioners Amended Brief
at Pages 18-19 whereupon Petitioners counsel noted that Movant was an
interested party. Neither Respondent disputed Petitioners counsels 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 Respondents 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 Herald1 and
Huffington Post2, multiple times in the last 3+ years.
ARGUMENTS
The City of Miami Commission violated Petitioners Citizens 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 Commissions
review was expressly not De Novo in nature, contrary to the Mandate of this
1
2

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

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 Citizens 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

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


a full and true disclosure of the facts. (Underlining is Authors emphasis).
This violation of Petitioners Miami-Dade County Charter Citizens 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 Commissions 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 Walmarts Response to
Petition for Certiorari Brief at Page 6-7. Subsequent to the Planning Directors
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.

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 Directors 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 record3 :
3

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

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 Courts 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. Ill 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 isnt 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 courts 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 --

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 Commissions 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

Miami-Dade County Home Rule Charter Citizens 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 Miamis 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

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

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 Courts
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 Mendezs 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)6 at the November 20th, 2014 hearing of
the Commission which has sent matters to this court. Further omitting that narrow

Citizens Bill of Rights as enumerated at (A)(2) in the Miami-Dade County Home Rule Charter

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 Citizens 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 Miamis Planning Director personally offered video recorded
guidance7 specific to this case makes abundantly clear the procedural difference
between Special Class II and Variance applications requirements8 for public

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

10

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 panels
counsel and staff can possibly be unbiased and follow this courts 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
Respondents application for a Special Class II permit still contains substantive
variances from the applicable zoning regulations of Miami21s 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

11

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 judicata9 as enumerated in Metropolitan Dade County Board
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. Walmarts 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
Walmarts plan, in contravention to the total of three (3) required by code.
Walmarts 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 t
hing.

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

12

Walmarts novel idea of creating an ill defined staging area is transparently


wrong10. Furthermore, Walmarts definition relies on the Planning Directors
new and unique definition of berths11, while Miamis Zoning Article 11000,
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.

Theres no definition of this staging area within Miamis Zoning Article
11000, nor the word staging found within Miami21s Appendix C, nor in the
body of Miami21. However, the definition of Loading space, offstreet and
Loading Facility is clearly applicable to Walmarts 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 havent 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
11

Petitioners Exhibit B 62-11


Petitioners Exhibit B 33-22

13

used for unloading of goods since theres 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 citys 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.
14

Finally, Walmarts 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 projects west
side) in direct contravention of Miami21 Appendix C regulations12 requiring all
corners of structures facing public open space13 have entrances which allow
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 street14, or on the corner intersection of the primary street and
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



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
13

15

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 Walmarts
proposed project. Evidence of the Midtown CDDs ownership, legal description
and position of the property were provided in the form of a print out from the
Miami-Dade County Property Tax Search15 of Folio 01-3125-078-0061 which is
classified as a Private Park16 and Common Area both of which meet the
definition of Open Space.
Walmarts 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 Walmarts application which the
City of Miamis 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, Walmarts 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
16

http://www.miamidade.gov/propertysearch/index.html
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

16

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 Citizens 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 Citys 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 Miamis
Municipal Ordinances from the date of this courts 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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