Coversheet


		City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov


		Item 5 COMMITTEE MEMORANDUM

TO: Land Use and Sustainability Committee

FROM: Alina T. Hudak, City Manager

DATE: June 6, 2022

TITLE:

REFORM OF AUTOMATIC STAY PROVISIONS

HISTORY:

HISTORY
On May 4, 2022, the City Commission referred the subject Ordinance to the Land Use and Sustainability Committee (LUSC) and the Planning Board (C4Y). The sponsor of the proposal is Mayor Dan Gelber.

BACKGROUND
Section 118-9 of the City’s Land Development Regulations broadly 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 the following 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, 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.

The automatic stay remains in effect through the conclusion of all litigation, including subsequent appeals.

The item sponsor has requested that the Administration and the City Attorney’s Office to provide recommendations to the LUSC regarding potential amendments to Section 118-9, in order to reform provisions governing the automatic stay pending appeal. The sponsor would also like the LUSC to consider any other related amendments to the City’s rules of appellate procedure, to promote efficiency and safeguard due process. Based on the LUSC’s recommendations, the sponsor has further requested that the Administration, in consultation with the City Attorney, provide a draft Ordinance to the Planning Board for transmittal to the City Commission.

ANALYSIS:

PLANNING ANALYSIS
Currently, an automatic stay provision exists for all rehearing requests and appeals of Design Review Board (DRB) and Historic Preservation Board (HPB) decisions, including appeals to circuit and appellate courts. The reason this automatic stay provision was originally drafted so broadly is to ensure that buildings are not demolished, constructed or altered unless and until the appellate process has been exhausted.

The intent of the proposed Ordinance is to reform the rehearing and appeal process related to land use boards, and better address those appeals filed to delay a project or result in the project not moving forward. There are a number of non-substantive adjustments and updates contained in the proposed draft Ordinance. The following is a summary of the more substantive modifications proposed to Sec. 118-9 of the LDR’s, to address the intent of the item sponsor:

Rehearing Timeframe
A timeframe for rehearing’s is proposed, and contains the following new provisions:
• Only one rehearing request, per eligible party, and per development order, will be permitted.
• The rehearing must take place at the next available meeting of the applicable land use board and shall be acted on by the board at that meeting; exceptions to this would be a lack of quorum.
• The failure of the applicable land use board to act upon the rehearing at the next available land use board meeting would render the request denied, unless all affected parties agree to a continuance of the rehearing.

These revisions do not impede the ability of an applicant or an affected person to avail themselves of the rehearing process. They simply expedite the process, so that it cannot be used to create undue delays.

Notice Requirements
The notice requirements for appeals of DRB and HPB decisions are proposed to be modified from the current 30 day notice (including posting, published and mail notice) to a ten (10) day published notice either in a newspaper of general circulation or on the City’s website. The appeal applicant petitioner would still be responsible for all associated costs and fees.

Since the appeal hearing for DRB and HPB decisions is based solely on the record of the proceedings, and is not a public hearing, the current notice requirements are both excessive and create undue delays in the appeal process. By streamlining the notice requirements, appeals of DRB and HPB matters will be able to be considered more quickly.

Appeal Timeframes
The following standards and requirements are proposed for DRB and HPB appeals:
• Oral argument before the City Commission (DRB appeals) or the Historic Preservation Special Magistrate (HPB appeals) must take place within 60 days of the date the appeal is filed. The only exception to this would be a lack of quorum of the City Commission, or the availability of the special magistrate.
• Failure by the City Commission or the special magistrate to take final action on the appeal within this 60 day timeframe, or immediately thereafter due to lack of quorum of the City Commission or availability of the special magistrate, would render the appeal request denied, unless all parties to the appeal (including the petitioner, the applicant, and the City Administration, as applicable) agree to a continuance of the oral argument.

Automatic Stay Provisions
The following provisions are proposed to be applicable to appeals from the DRB or HPB:
• The filing of an appeal stays all work on the premises and all proceedings in furtherance of the action appealed from, through the resolution of the appeal by the City Commission or the Historic Preservation Special Magistrate.
• The City may accept and review a building permit application while an appeal is pending before the City Commission or Historic Preservation Special Magistrate; however, a building permit shall not be issued unless and until the City Commission or Historic Preservation Special Magistrate rules on the appeal.
• Subsequent to final action on an appeal by the City Commission or the Historic Preservation Special Magistrate, certain conditions pertaining to the issuance of a building permit to the project applicant would be applicable only to an appeal filed by a party other than (i) the city manager, or (ii) the applicant. Otherwise, the automatic stay shall remain in place until the final resolution of the appeal.
• In order for a building permit to issue pending any appeals to the Circuit Court Appellate Division, the Third District Court of Appeal or other appellate proceedings, the applicant shall be required to comply with all of the following conditions:

1. The applicant shall be required to pay all building permit fees, which fees shall be nonrefundable.
2. No final certificate of occupancy (CO) or certificate of completion (CC), including a temporary certificate of completion (TCC) shall be issued until the final resolution of the appeal (including all judicial proceedings), as determined by the City Attorney.
3. 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.
4. In the event that the decision of the DRB or HPB is reversed on appeal, the applicant shall immediately amend or abandon the building permit, or building permit application, without any liability to the city, and a CO or CC shall not be issued unless and until all work is corrected or completed on site in accordance with the revised building permit.
5. The applicant shall 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 the requirements herein, 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 conditions of the applicable order of the respective land use board, including all enforcement, modification. and revocation provisions; except that the applicant shall be ineligible to apply for any modifications to the board order impacting the property, until the final resolution of all administrative and court proceedings as certified by the City Attorney. Additionally, the applicant shall agree that in the event that the decision of the board 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 and the City Attorneys Office believe that the proposed draft Ordinance represents a fair and balanced approach to ensuring an just appellate process, while not causing undue delays for project applicants. Should an appellant desire to extend the stay beyond first tier review (City Commission or Historic Preservation Special Magistrate) an action can be filed in circuit or appellate court. Ultimately, the risk involved in proceeding with permitting and construction of a development project would be borne by the project applicant, who can best evaluate the potential risks associated with proceeding prior to the conclusion of all appeals.

CONCLUSION:

The Administration recommends that the Land Use and Sustainability Committee discuss the subject Ordinance and provide recommendations. If there is consensus on the proposed draft Ordinance, it is further recommended that the LUSC endorse the proposal and recommend that the Planning Board transmit the item to the City Commission with a favorable recommendation.

Applicable Area

Citywide

Is this a "Residents Right to Know" item, pursuant to City Code Section 2-14?		Does this item utilize G.O. Bond Funds?
Yes		No

Departments

Planning

ATTACHMENTS:
	Description	Type
	Reform of Automatic Stay Provisions - REVISED DRAFT ORD	Ordinance