| | | | | | | |  | Ordinances - R5 B
COMMISSION MEMORANDUM |
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| | | | | | | | | TO: | Honorable Mayor and Members of the City Commission | | | FROM: | Alina T. Hudak, City Manager | | | DATE: | July 20, 2022 | | | | 10:10 a.m. Second Reading Public Hearing
| | SUBJECT: | 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. |
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| | | | | | | | RECOMMENDATION
| | The Administration recommends that the City Commission adopt the subject Ordinance. |
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| | | | | | | | BACKGROUND/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.
On June 6, 2022, the LUSC discussed a comprehensive draft Ordinance prepared by the Administration. The LUSC recommended that the Planning Board transmit a more limited version of the Ordinance to the City Commission with a favorable recommendation. The remaining portions of the proposed Ordinance regarding broader reforms was continued to the September 2022, LUSC meeting.
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. |
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| | | | | | | | 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.
The draft Ordinance transmitted by the Planning Board on June 21, 2022, consists of more limited modifications to Sec. 118-9 of the LDR’s, as recommended by the LUSC. The following is a summary of the key provisions of the Ordinance scheduled to be considered by the City Commission at First Reading on July 8, 2022:
Appeal Timeframe for DRB and HPB
Oral argument for a design review board or historic preservation board appeal shall take place within 90 days of the date the appeal is filed, unless a lack of quorum of the City Commission, or the availability of the special magistrate, requires the oral argument to be continued to a later date. 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 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 applies a new standard for stay of work related to appeals of land use board orders for projects located outside of single-family districts or that are not related to conditional use permits. Specifically, if an appeal is timely and properly filed subject to the requirements of Section 118-9 or the Florida Rules of Appellate Procedure (as applicable), the stay of work on the premises in furtherance of the action appealed from shall be for a period 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 land use board approval.
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:
120 Stay Extension
In order to account for the unforeseen availability of the City Commission or the special magistrate, the following additional provision recommended:
1. In the event of lack of quorum of the City Commission or the unavailability of the special magistrate, the stay of all work on the premises and all proceedings in furtherance of the action appealed from shall remain in place for a period exceeding 120 days and until such time as the appeal is ruled on by the City Commission or special magistrate.
Indemnification
The following hold harmless provisions to indemnify the City against any liability resulting from work that takes place prior to an appeal ruling are recommended:
1. The applicant shall 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)(iii), and any proceedings resulting from the issuance of a building permit, and 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 impacting the property that are subject to the appeal, until the final resolution of all administrative and court proceedings as certified by the city attorney. Notwithstanding the foregoing, this shall not apply to those land use board amendments that are part of a settlement of the appeal.
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 otherwise approved for modification by the DRB or HPB, as applicable.
Occupancy
The following Certificate of Occupancy (CO) provision to minimize the potential impact of uses prior to a final appeal ruling being issued is recommended:
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.
These recommendations will be presented to the City Commission on the floor of the July 8, 2022 City Commission meeting. They are also included, for ease of reference, within the body of the attached Ordinance in BOLD DOUBLE UNDERSCORE.
SUMMARY
The Administration and the City Attorney’s Office believe that the proposed Ordinance represents a fair and balanced approach to ensuring a 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.
UPDATE
First Reading of the subject Ordinance was scheduled for July 8, 2022, at which time the recommendations of the Planning Board were to be presented. The Administration will update the Commission on any changes included at First Reading, including any revised versions of the Ordinance under separate cover. |
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| | | | | | | | SUPPORTING SURVEY DATA
| | Improve Land Use Board Process |
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| | | | | | | | FINANCIAL INFORMATION
| | No Fiscal Impact Expected |
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| | | | | | | | CONCLUSION
| | The Administration recommends that the City Commission adopt the subject Ordinance. |
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| | | | | | | | Applicable Area
| | Not Applicable |
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| | | | | | | | | Is this a "Residents Right to Know" item, pursuant to City Code Section 2-14? | | Does this item utilize G.O. Bond Funds? | | | Yes | | Yes | |
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