Section 118-9 of the City’s Land Development Regulations provides that an appeal of a land use board order stays all work on the premises and all proceedings in furtherance of the action appealed from, subject to two limited exceptions.

1. The first exception is when a stay would cause imminent peril to life or property.

2. The second exception, adopted by the City Commission on April 11, 2018, and pursuant to Ordinance No. 2018-4185 (attached), relates specifically to appeals from the Planning Board’s approval of a Conditional Use Permit. Under this exception, a building permit may be issued to an applicant whose Conditional Use Permit has been appealed to Circuit Court, as long as certain conditions are satisfied, and provided the applicant executes a written agreement indemnifying and holding the City harmless from any liability or loss should the applicant not prevail in the underlying appeal.

Commissioner Rosen Gonzalez would like the LUSC to consider whether to repeal the second exception above, in order to restore the rule that the only exception from the automatic stay is when a stay “would cause immediate peril to life or property.” The following is the existing text from Section 118-9(c)(5)(ii), which is proposed to be deleted in its entirety:

As applicable only to an appeal arising from the planning board's approval of a conditional use permit, the city may accept, for review purposes only, a building permit application during a pending appeal in circuit court. The applicant shall be required to pay all building permit fees, which fees shall be nonrefundable. Despite the foregoing, no building permit shall issue while the circuit court appeal is pending. Should the decision on the circuit court appeal (petition for certiorari) decision be rendered in favor of the conditional use permit applicant, the applicant may proceed with construction and operations, excluding entertainment operations, pending any further appeals to the Third District Court of Appeal or other appellate proceedings, so long as the following conditions are met:

a. The building permit may issue and shall remain active until the final resolution of all administrative and court proceedings;
b. No final certificate of occupancy (CO) or certificate of completion (CC) shall be issued, and no entertainment operations or entertainment business shall commence or take place, until the final resolution of all administrative and court proceedings;
c. The conditional use permit was appealed by a party other than (i) the city, or (ii) an applicant appealing a denial of a conditional use permit application;
d. The property subject to the conditional use permit is located within (i) a commercial district, and (ii) a historic district;
e. The scope of the conditional use permit is limited to modifications to an existing structure;
f. The applicant shall prior to the issuance of the building permit, either: (i) place funds in escrow, or (ii) obtain a bond, either of which must be in an amount that is at least equal to or greater than 100 percent of the value of the work proposed under the building permit;
g. The applicant is not seeking the demolition of any portion of a contributing structure; and
h. In the event that the conditional use permit is reversed on appeal, the applicant must immediately amend or abandon the building permit or building permit application without any liability to the city, and a CC or CO shall not be issued. Additionally, no BTR for entertainment shall issue.

In order for a building permit to issue pursuant to this subsection (c)(5)(ii), pending any further appeals to the Third District Court of Appeal or other appellate proceedings, the applicant shall be required to comply with all of the conditions in subsections (c)(5)(ii)a. through h., as well as all conditions of the conditional use permit. The applicant shall also be required to execute a written agreement (in a form acceptable to the city attorney) holding the city harmless and indemnifying the city from any liability or loss resulting from the underlying appellate or administrative proceedings, any civil actions relating to the application of this subsection (c)(5)(ii), and any proceedings resulting from the issuance of a building permit, and the non-issuance of a TCO, TCC, CC, CO or BTR for the property. Such written agreement shall also bind the applicant to all requirements of the conditional use permit, including all enforcement, modification. and revocation provisions; except that the applicant shall be ineligible to apply for any modifications to the conditional use permit or any other land use board order impacting the property, until the final resolution of all administrative and court proceedings as certified by the city attorney. Additionally, the applicant must agree that in the event that the conditional use permit is reversed, the applicant shall be required to restore the property to its original condition. The city may utilize the bond to ensure compliance with the foregoing provisions.

The Administration has no objection to this proposal as the above noted section of the Code has very limited applicability.