Filing # 107964199 E-Filed 05/26/2020 08:22:42 PM

IN THE CIRCUIT COURT

OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR
MIAMI-DADE COUNTY

2019-023993-CA-01
3384 DAY AVENUE INVESTMENTS, INC.,

Petitioner,

vs.

CITY OF MIAMI et al.,

Respondents.
____________________________/

VERIFIED MOTION TO INTERVENE

Movant Melissa S. Meyer (“Intervenor Neighbor”), by and through

undersigned counsel and pursuant to Rule 1.230, Florida Rules of Civil

Procedure, hereby moves to intervene in the above styled action as a party

respondent. In support of this motion, Intervenor Neighbor states as follows:

Introduction

1. Intervenor Neighbor Melissa S. Meyer was the first to discover that

Developer Petitioner was constructing buildings located at 3374-3384 Day

Avenue in her Coconut Grove Village West neighborhood that failed to comply

with setback requirements mandated by the Miami 21 Zoning Code and the

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Florida Building Code. The following photograph provides context for the

violation at the heart of this case:

Photo credit Miami Herald at https://www.miamiherald.com/news/local/community/miami-dade/coconut-

grove/article233087847.html

2. Ms. Meyer brought the violation to the attention of various City of Miami

officials and eventually retained undersigned counsel who delivered the letter

attached hereto as Exhibit A to the City of Miami. In July of 2019, the City of

Miami building department placed a hold on Developer Petitioner’s building

permit.

3. On August 14, 2019, Developer Petitioner filed the instant lawsuit,

seeking mandamus relief from this court to force the City of Miami to lift the

hold on the building permit.

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4. On September 19, 2019 this action was stayed by the Court.

5. On May 14, 2020 Intervenor Neighbor and undersigned counsel became

aware of Developer Petitioner’s lawsuit for the first time, when a potential

settlement of the litigation was placed on the Consent Agenda of the City of

Miami Commission. The Consent Item was withdrawn by unanimous vote at

the commission meeting.

6. On May 21, 2020 Developer Petitioner filed a Motion to Lift Stay,

arguing that the City’s action in enforcing the zoning code was illegitimate

because:

The City’s actions in this regard make clear that this case has been, and
always will be, about enforcement of the City’s zoning code so as to
appease the City’s residents for political gain, rather than enforcement
of the building code violations the City propped up like a house of cards
to support the issuance of the hold on the Permit. (Emphasis added).

Movant has a Right to Intervene

7. Intervenor Neighbor Melissa S. Meyer lives in Coconut Grove’s Village

West at the house she owns at 3161 Ohio Street which is located

approximately 375 feet from the properties subject to this dispute owned by

Developer Petitioner at 3374-3384 Day Avenue.

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8. Rule 1.230, Florida Rules of Civil Procedure, permits intervention by

“anyone claiming an interest in pending litigation.” The rules of intervention

are intended “to allow liberal joinder of parties and claims and the policy of

equity to grant complete relieve and avoid a multiplicity of suits.” Symcon Dev.

Group Corp. v. Passero, 219 So. 3d 879, 881 (Fla. 4th DCA 2017) (quoting

Miracle House Corp v. Haige, 96 So. 2d 417, 418 (Fla 1957).

9. The Intervenor Neighbor has the right to petition government 1 and the

construction of neighboring buildings that are not in compliance with

applicable law and safety standards, including the failure to maintain legally

required setbacks between buildings, unleashes a series of consequential

damages that directly impacts the neighbors’ property value as well as their

health and safety.

10. Building setbacks are building restrictions imposed by local government

for reasons of public policy to ensure safety, privacy, and environmental

protection, as well as maintaining the scale, density, character and identity of

a neighborhood.

11. Setbacks also establish separation distances between buildings to

enable proper storm water runoff, as well as limit fire spread and allow
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See the Miami Citizens’ Bill of Rights (Sec (A)(3) and Article I, Sec. 5 of the Florida Constitution.

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firefighting/rescue and other first responder activity to occur between

buildings.

12. Importantly, Developer Petitioner acknowledged the interests of the

Intervenor Neighbor when it stated in its Motion to Lift Stay on May 21, 2020

that this dispute “has been, and always will be about enforcement of the City’s

zoning code so as to appease the City’s residents for political gain.”

13. Intervenor Neighbor disagrees with Developer Petitioner’s attempt to

minimize and politicize her genuine interest in this matter. Disregard of

required setbacks is a real and present hazard that threatens the health, safety

and welfare of residents, and fails to protect their property interests.

14. Intervenor Neighbor has an undeniable interest in ensuring that the City

of Miami legally enforce the correction of building code violations and abate

noncomplying structures by rehabilitation or by demolition in accordance

with City of Miami procedures.

Intervenor Neighbor should be granted full party status

15. Pursuant to Rule 1.230, Florida Rules of Civil Procedure, a party’s

“intervention shall be in subordination to, and in recognition of, the propriety

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of the main proceeding, unless otherwise ordered by the court in its discretion.”

(Emphasis added).

16. Review of a motion to intervene under Rule 1.230 is a two-step process,

the first step being a review of the nature of the interest of the person seeking

intervention, and the second step being a review of the parameters of

intervention necessary to protect that interest in the pending litigation. Union

Cent. Life Ins. Co. v. Carlisle, 595 So. 2d 505, 507-8 (Fla. 1992). Limitations to

those parameters that bar an intervenor from adequately addressing its

concerns can constitute an abuse of the trial courts’ discretion. See Genauer v.

Downey & Downey, P.A., 190 So.3d 131, 135 (Fla. 4th DCA 2016).

17. Here, there should be no limitation on the extent to which Intervenor

Neighbor can assert her rights in this action and litigate the case as a party

respondent because the express relief sought by Petitioner Developer, lifting

the building permit hold, will result in a unique and substantial harm if the

relief is granted. Therefore, Intervenor Neighbor should be permitted to

intervene as a respondent with the same rights and privileges as the City of

Miami Respondents.

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 Intervention will not cause any delay

18. This action has been stayed since September 19, 2019 and the City of

Miami Respondents have not yet filed an answer. Intervenor Neighbor seeks

to intervene in this action to obtain a full and timely resolution of this matter

without disruption. Because the litigation is still in the pleading stages,

intervention will not delay or disrupt the pending proceedings. Where, as

here, “the litigation is still in the pleading stage, and the intervenors assure the

court that their participation will not delay or disrupt the proceedings, it is an

abuse of discretion to deny the motion to intervene.” Hartford Fire Ins. Co. v.

Sch. Bd. Of Dade County, 661 So. 2d 111, 112 (Fla 3d DCA 1995).

Consultation with Counsel

19. Undersigned counsel for Neighbor Intervenor has conferred with

counsel for the City of Miami and they object to this Motion to Intervene as

drafted. Undersigned counsel was unable to get a position from Developer

Petitioner.

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 CONCLUSION

WHEREFORE, Neighbor Intervenor Movant Melissa S. Meyer respectfully

requests that this Honorable Court grant this Motion to Intervene and permit

her to enter this case as a party respondent.

Respectfully submitted,

By: ______s/djw__________
David J. Winker, Esq. B.C.S.
Fla. Bar. No.73148
2222 SW 17th Street
Miami, FL 33145
305-801-8700
dwinker@dwrlc.com

VERIFICATION BY INTERVENOR

Pursuant to section 92.525(2), Florida Statutes, under penalties of perjury, I,

Melissa S. Meyer, declare that I have read the foregoing document and that the

facts stated in it are true and correct to the best of my knowledge and belief.

___________________
Melissa S. Meyer

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

electronically filed with the Florida Court’s E-Filing Portal and that I have

effectuated service through the email addresses on the portal on all attorneys

registered to receive service on this case in compliance with Fla. R. Jud.

Admin. 2.516 this 26th day of May 2020 as follows:

klmcnulty@miamigov.com
csantos@miamigov.com
gcarby@miamigov.com
matt@pbmlegal.net
ines@pbmlegal.net
scarlett@pbmlegal.net

By: ______s/djw__________
Fla. Bar. No.73148

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 EXHIBIT A

DAVID J. WINKER, P.A.

305 801 8700
dwinker@dwrlc.com

July 16, 2019

Via email

Jose S Camero, Director Francisco J. Garcia, Director

City of Miami Building Department City of Miami Planning Department
444 S.W. 2nd Avenue, 4th floor 444 S.W. 2nd Avenue, 3rd floor
Miami, FL 33130 Miami, FL 33130
JCamero@miamigov.com FGarcia@miamigov.com

City Manager Emilio Gonzalez Commissioner Ken Russell

444 SW 2nd Avenue, 10th Floor 3500 Pan American Drive
Miami, FL, 33130 Miami, FL, 33133
ETGonzalez@miamigov.com krussell@miamigov.com

City Attorney Victoria Mendez

444 SW 2nd Ave, 9th Floor
Miami, FL, 33130
VMendez@miamigov.com

Dear All:

It appears that widespread building code violations are occurring throughout Coconut Grove’s
Village West, where developers are ignoring the maximum 25 foot building height limit and the
minimum 5 foot building setback requirement on new construction without consequence.

Melissa Meyer, who lives in Coconut Grove’s Village West at 3161 Ohio Street, has been forced
to hire me because her repeated efforts to get the City of Miami to enforce its building code in
her neighborhood have been repeatedly ignored.

Failure to enforce the code is effectively erasing the identity of this historically significant and
traditionally marginalized community, while unleashing a series of consequential damages that
range from putting lives at risk to devaluing surrounding properties, which has a direct impact on
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the transfer of intergenerational wealth.
As you are aware, it is the Building Department’s responsibility to enforce the codes and
regulations established by the State of Florida and Miami-Dade County which govern the
construction of buildings and structures within the City of Miami.

Building height limits and setbacks maintain the scale, density, character and identity of a
neighborhood. Building setbacks also establish separation distances between buildings to limit
fire spread, while effectively allowing fire-fighting activity to occur between buildings.

Disregard for the required setback is a formidable hazard and threatens the health, safety and
welfare of residents, and fails to protect their property interests. As you are aware, the City must
legally enforce the correction of building code violations and noncomplying structures must be
abated by rehabilitation or by demolition in accordance with City of Miami procedures.

Attached is a chart that identifies specific setback violations that have occurred within 500 feet
of my client’s home. This is a very limited snapshot of the egregious building code violations
throughout Coconut Grove’s Village West, as the City of Miami appears to be allowing
developers to ignore the building height and setback restrictions.

In light of the widespread nature of this noncompliance in the face of my client’s numerous
documented attempts to get City of Miami officials to enforce the law, please let me know by
July 31, 2019 what steps the City proposes to take to determine:

1. Each instance of noncompliance on both completed and ongoing construction throughout

Village West.
2. Why did noncompliance occur?
3. How and when is compliance going to be achieved on completed properties that are
noncompliant?
4. How and when is compliance going to be achieved on properties currently under
construction that are noncompliant?
5. How will compliance be assured on future projects?

I am writing this letter in a good faith effort to resolve this problem, as I believe that everyone
can see the benefit of living in a city that operates under the unbiased enforcement of the rule of
law to protect all residents and their property.

______/djw/____________
David Winker, Esq.
Cc: Melissa Meyer,
Assoc. AIA LEED AP BD+C

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 Setback Violations: Coconut Grove, Village West
Required Actual Variance/
Date Date Action Current Project
Setback Violations Owner Side Source / Code Section Side Confirmed By Public
Reported Confirmed Taken Setback Status
Setback Setback Notice
City of Miami
Miami 21 Final Code 02/09/2018 02/14/2018 Code Compliance Inspector Stop Order
3145 Ohio Street Labor Ohio, LLC January 2018 Amended Code Dennis Uriarte issued on
FOLIO: 2534 Fisher Island 5'-0" Page IV.6 4'-3" 02/14/18 70%
None 4'-3"
01-4121-001-1241 Miami, FL 33109 Article 4 Table 2 Summary City of Miami by Complete
T-3 Sub-Urban Zone 06/25/2019 06/25/2019 Code Compliance Inspector Dennis
Dennis Uriarte Uriarte
City of Miami
Miami 21 Final Code 02/09/2018 02/14/2018 Code Compliance Inspector
3174 Elizabeth Street Labor Beth, LLC January 2018 Amended Code Dennis Uriarte
5'-0" Page IV.6 2'-0" 80%
FOLIO: 2534 Fisher Island None None 2'-0"
01-4121-001-1490 Miami, FL 33109 Article 4 Table 2 Summary City of Miami Complete
T-3 Sub-Urban Zone 06/25/2019 06/25/2019 Code Compliance Inspector
Dennis Uriarte
City of Miami
Miami 21 Final Code 02/09/2018 02/14/2018 Code Compliance Inspector
Labor Beth, LLC January 2018 Amended Code Dennis Uriarte
3176 Elizabeth Street 2'-0"
2534 Fisher Island 5'-0" Page IV.6 80%
FOLIO: None None 2'-0"
Miami, FL 33109 Article 4 Table 2 Summary City of Miami Complete
01-4121-001-1490
T-3 Sub-Urban Zone 06/25/2019 06/25/2019 Code Compliance Inspector
Cornelius Pierre
City of Miami
Miami 21 Final Code 02/09/2018 02/14/2018 Code Compliance Inspector
3184 Elizabeth Street Labor Beth, LLC January 2018 Amended Code 100%
2'-0" Dennis Uriarte
FOLIO: 2534 Fisher Island 5'-0" Page IV.6 Complete
01-4121-001-1530 None None 2'-0"
Miami, FL 33109 Article 4 Table 2 Summary City of Miami FOR SALE
T-3 Sub-Urban Zone 06/25/2019 06/25/2019 Code Compliance Inspector
Cornelius Pierre
City of Miami
Miami 21 Final Code 02/09/2018 02/14/2018 Code Compliance Inspector Stop Order
Labor Beth, LLC January 2018 Amended Code Dennis Uriarte issued on
3186 Elizabeth Street 2'-0" 100%
2534 Fisher Island 5'-0" Page IV.6 02/14/18
FOLIO: None 2'-0" Complete
Miami, FL 33109 Article 4 Table 2 Summary City of Miami by
01-4121-001-1530 SOLD
T-3 Sub-Urban Zone 06/25/2019 06/25/2019 Code Compliance Inspector Dennis
Cornelius Pierre Uriarte
3384 Day Miami 21 Final Code
3374 Day Avenue Investments, Inc. January 2018 Amended Code City of Miami 85%
FOLIO: 175 SW 7 Street 5'-0" Page IV.6 2'-5" 06/25/2019 06/25/2019 Code Compliance Inspector None None 2'-5" Complete
01-4121-008-0015 Suite 2112 Article 4 Table 2 Summary Cornelius Pierre
Miami, FL 33130 T-3 Sub-Urban Zone