REFORM OF AUTOMATIC STAY PROVISIONS

AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI BEACH BY AMENDING CHAPTER 118 OF THE LAND DEVELOPMENT REGULATIONS, ENTITLED "ADMINISTRATION AND REVIEW PROCEDURES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 118-9, ENTITLED "REHEARING AND APPEAL PROCEDURES," TO AMEND THE CITY'S RULES OF PROCEDURE REGARDING REHEARINGS AND APPEALS OF LAND USE BOARD DECISIONS, INCLUDING PROVISIONS GOVERNING THE AUTOMATIC STAY PENDING APPEAL; AND PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. 

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.

On June 6, 2022, the LUSC discussed a comprehensive draft Ordinance prepared by the Administration. The LUSC bifurcated the discussion and recommended that the Planning Board transmit a more limited version of the Ordinance to the City Commission with a favorable recommendation. The broader discussion regarding amendments to the City’s rules of appellate procedure is scheduled to be considered by the LUSC on September 16, 2022.

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.

PLANNING ANALYSIS

Currently, an automatic stay takes effect upon the filing of (i) a petition for rehearing of a decision of the Design Review Board (DRB) or Historic Preservation Board (HPB), or (ii) an appeal of a decision of any of the City’s four land use boards, through the conclusion of any subsequent appeal(s), subject to limited exceptions. 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 this proposed Ordinance is to reform the rehearing and appeal procedures related to land use board decisions, to promote efficiency, safeguard procedural due process, and guard against abuse.

The attached Ordinance, which was endorsed by the LUSC on June 6, 2022 and transmitted by the Planning Board on June 21, 2022, consists of more limited modifications to Sec. 118-9 of the LDRs. The following is a summary of the key provisions of the Ordinance to be considered by the City Commission at First Reading:

Appeal Timeframes for DRB and HPB
Except for decisions on variances, which are reviewable by the Circuit Court on a petition for writ of certiorari, appeals from the DRB are heard by the City Commission, and appeals from the HPB are heard by the Special Magistrate for the HPB. This Ordinance creates deadlines for appeals before the City Commission and Special Magistrate. The following are the specific timeframes and deadlines proposed for such appeals:

• Answer brief. The respondent may serve an answer brief within 30 days of the City’s written acceptance of the petition.

• Reply brief. The petitioner may serve a reply brief within 15 days of the filing of the answer brief.

• Oral argument. Oral argument shall occur within 90 days of the City’s acceptance of the petition, except that oral argument may be continued to a future date due to a lack of quorum of the City Commission or the unavailability of the Special Magistrate.

• Decision. A decision of the City Commission or Special Magistrate shall be rendered within 120 days of the date the appeal is filed.

These deadlines may be modified by consent of the parties to the appeal.

Stay of Work and Proceedings on Appeal
The proposed Ordinance modifies provisions governing the automatic stay in connection with appeals of land use board orders (i) for projects that are located outside of single-family districts or (ii) are not related to conditional use permits. Specifically, if an appeal is timely and properly filed subject to the requirements of City Code Section 118-9 or the Florida Rules of Appellate Procedure (as applicable), the stay of work on the premises and all proceedings in furtherance of the action appealed from shall have a duration of 120 days from the date the appeal is filed, or until such time as the appeal is ruled on by the body or court with jurisdiction at the first level of appeal, whichever occurs first.

The amendment also provides that these revised stay provisions are not applicable to appeals filed by the City Manager or the applicant for the subject land use board approval. Additionally, the Ordinance would apply both retroactively to pending appeals and prospectively to future appeals.

PLANNING BOARD REVIEW
The Planning Board held a public hearing on June 21, 2022 and transmitted the Ordinance recommended by the LUSC to the City Commission with a favorable recommendation (5-1). The Planning Board also recommended the following additional safeguards be included in the Ordinance for approval at First Reading on July 8, 2022:

Duration of the Stay
In order to account for unforeseeable circumstances, the following additional provision is recommended:

1. With regard to applicable appeals from the DRB or HPB, in the event that a decision is not rendered within 120 days due to a lack of quorum of the City Commission or the unavailability of the Special Magistrate, the automatic stay shall remain in place until such time as the appeal is ruled on by the City Commission or Special Magistrate.

Hold Harmless and Indemnification
The Planning Board also recommended the below amendments to require that, in order to lift the automatic stay (upon a favorable ruling by the City Commission or Special Magistrate), an applicant shall be required to execute an agreement to (i) hold harmless and indemnify the City from any liability or loss resulting from the underlying litigation, and acknowledge that the applicant would be proceeding at its own risk; and (ii) restore the property to its previous condition, unless modifications are approved by the DRB or HPB, as applicable:

1. The applicant shall execute a written agreement (in a form acceptable to the City Attorney) to hold harmless and indemnify the City from any liability or loss resulting from the underlying appellate proceedings, any civil actions relating to the application of this subsection (c)(5)(iii), and any liability arising from the issuance of a building permit, or the non-issuance of a final certificate of completion (CC) or a final certificate of occupancy (CO) for the property.

2. The written agreement shall 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 that is subject to the appeal, until the final resolution of all appellate proceedings as certified by the City Attorney. Notwithstanding the foregoing, an applicant shall be eligible to apply for modifications that are minor or that are necessary to effectuate a settlement.

3. 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 previous condition, unless modifications are approved by the DRB or HPB, as applicable.

Certificate of Occupancy
The Planning Board recommended the following amendment with respect to the issuance of a final Certificate of Occupancy or Certificate of Completion:

1. No final certificate of occupancy (CO) or final certificate of completion (CC), shall be issued until the final resolution of the appeal (including all judicial proceedings), as determined by the city attorney.

For ease of reference, these recommendations are included within the body of the attached Ordinance in BOLD DOUBLE UNDERSCORE. The Administration is fully supportive of these limited modifications and recommends that they be included in the approval of the Ordinance at First Reading.

SUMMARY
The Administration and the City Attorney’s Office believe that the proposed Ordinance represents a balanced approach to ensuring a fair appellate process, while promoting efficiency and guarding against abuse. Ultimately, the risk involved in proceeding with permitting and construction of a development project is borne by the project applicant. The applicant is in the best position to evaluate the potential risks associated with proceeding prior to the conclusion of any and all appeals.