Attached is a proposed amendment to chapter 118, Article X of the Land Development Regulations, which creates a presumption clause if a contributing structure is demolished, for any reason, including, but not limited to demolition by neglect, without first obtaining a Certificate of Appropriateness from the Historic Preservation Board. The following is the specific draft amendment to section 118-503:
Sec. 118-503. - Scope, policies and exemptions.
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(1) After-the-fact certificates of appropriateness for demolition. In the event any demolition as described above or in subsection (b) of this section should take place prior to historic preservation board review, the demolition order shall be conditioned to require the property owner to file an "after-the-fact" application for a certificate of appropriateness for demolition to the historic preservation board, within 15 days of the issuance of the demolition order. No "after-the-fact" fee shall be assessed for such application. The board shall review the demolition and determine whether and how the demolished building, structure, landscape feature or the partially or fully demolished feature of the exterior or public interior space of a structure, shall be replaced. The property owner shall also be required, to the greatest extent possible, to retain, preserve and restore any demolished feature of a structure until such time as the board reviews and acts on the "after-the-fact" application. In the event the property owner fails to file an "after-the-fact" application for a certificate of appropriateness for demolition to the historic preservation board within 15 days of the issuance of an emergency demolition order, the city may initiate enforcement proceedings including proceedings to revoke the certificate of use, occupational license, any active building permit(s) or certificate of occupancy of the subject site, whichever is appropriate. Additionally, this article may be enforced and violations may be punished as provided in section 114-8 of this Code; or by enforcement procedures as set forth in the Charter and penalties as provided in section 1-14 of this Code.
(2) Replacement of existing structures. The policy of the City of Miami Beach shall be a presumption that a contributing building demolished without obtaining a certificate of appropriateness from the historic preservation board, shall only be replaced with a new structure that incorporates the same height, massing and square footage of the previous structure on site, not to exceed the FAR of the demolished structure, and not to exceed the maximum FAR and height permitted under the City Code, with no additional square footage added. This
policy presumption shall be applicable in the event a building permit for new construction or for repair or rehabilitation is issued, and demolition occurs for any reason, including, but not limited to, an order of the building official or the county unsafe structures board. This policy presumption shall also be applicable to any request for an "after-the-fact" certificate of appropriateness. This policy presumption may be rebutted, and the historic preservation board may allow for the addition of more square footage, where appropriate, not to exceed the maximum permitted under the City Code, if it is established to the satisfaction of the historic preservation board that the following criteria have been satisfied:
a. The proposed new structure is consistent with the context and character of the immediate area; and
b. The property owner made a reasonable effort to regularly inspect and maintain the structure free of structural deficiencies and in compliance with the minimum maintenance standards of this Code.
(3) Replication of demolished contributing structures. The historic preservation board shall determine, on a case-by-case basis, whether the replication of an original, contributing structure is warranted. For purposes of this subsection, replication shall be defined as the physical reconstruction, including all original dimensions in the original location, of a structure in totality, inclusive of the reproduction of primary facade dimensions and public area dimensions with appropriate historic materials whenever possible, original walls, window and door openings, exterior features and finishes, floor slab, floor plates, roofs and public interior spaces. The historic preservation board shall have full discretion as to the exact level of demolition and reconstruction required. If a building to be reconstructed is nonconforming, any such reconstruction shall comply with all of the requirements of chapter 118, article IX, of these land development regulations.
From a legal standpoint, a presumption shifts the burden of proof from one party to the other. In the case of an after-the-fact Certificate of Appropriateness (C of A) for demolition, replacing the word ‘policy’ with ‘presumption’, more clearly places the legal burden on the property owner of a building that was demolished without a C of A to demonstrate evidence why the HPB should allow the building to be replaced by something other than a structure that does not exceed the height, massing, and square footage of the previous structure on site (which is the presumed default).
PLANNING BOARD REVIEW
On January 28, 2020, the Planning Board held a public hearing and transmitted the ordinance to the City Commission with a favorable recommendation by a vote of 7-0. The Planning Board also recommended that when a contributing structure is demolished without first obtaining a certificate of appropriateness, in addition to all other requirements under LDR’s, a notice of such action be recorded against the property in the public records. The notice would serve to advise potential future buyers of the property, or any other interested party, that a contributing structure was demolished without obtaining a certificate of appropriateness, in violation of Chapter 118, Article X of the City Code.
The administration and the City Attorneys office are exploring ways to address this recommendation, potentially as part of an LDR amendment, or through a policy mechanism.
On February 12, 2020 the City Commission approved the subject ordinance at first reading with no changes. Additionally, pursuant to section 118-162(c) of the Land Development Regulations of the City Code, the City Commission waived the application fees. The item was deferred at the March 18, 2020 and April 22, 2020 City Commission meetings.