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City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
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| | | | | | | | | | Item 1
COMMITTEE MEMORANDUM | | | |
| | | | | | | | TO: Land Use and Sustainability Committee
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| FROM: Alina T. Hudak, City Manager
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| DATE: September 28, 2022
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| | | | | | | | | TITLE: | REFORM OF AUTOMATIC STAY PROVISIONS |
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| | | | | | | | 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 23, 2022, LUSC meeting.
On June 21, 2022, the Planning Board transmitted the limited version of the Ordinance to the City Commission with a favorable recommendation. The Ordinance transmitted by the Planning Board was adopted by the City Commission on July 20, 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.
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. |
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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 Ordinance adopted by the City Commission on July 20, 2022 consisted of more limited modifications to Sec. 118-9 of the LDR’s, as recommended by the LUSC. The original proposed Ordinance presented to the LUSC on June 6, 2022, contained a broader set of amendments, which were intended to substantially 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. In addition to these substantive reforms, a number of non-substantive adjustments and updates were contained in the proposed draft Ordinance.
The following is a summary of the key provisions of the broader reform amendments proposed, which were continued to the September 23, 2022, LUSC:
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
Two (2) options are proposed to reform the notice provisions for appeals, as follows:
Option 1: 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.
Option 2: The current 30-day notice requirements for appeals of DRB and HPB decisions (including posting, published and mail notice) remain the same, but are required to be effectuated within 60 days of filing the appeal. The appeal applicant petitioner would still be responsible for all associated costs and fees.
While option 2 establishes a defined timeframe for effectuating the required notice, the Administration recommends option 1 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 excessive and add to 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.
Updates and Clarifications
A number of non-substantive updates and clarifications, pertaining to appellate rules and procedures, as well as board procedures, are proposed.
The attached draft Ordinance contains the limited amendments adopted by the City Commission on July 20, 2022. The additional reform measures proposed by the Administration are denoted in underscore.
SUMMARY
As noted previously, The Administration and the City Attorney’s Office believe that the proposal herein, as well as the Ordinance adopted on July 20, 2022, represent a fair and balanced approach to ensuring a just appellate process, while not causing undue delays for project applicants. Should an appellant or an affected party desire to extend the stay beyond first tier review (City Commission or Historic Preservation Special Magistrate) a separate 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.
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| | | | | | | | CONCLUSION:
| | The Administration recommends that the Land Use and Sustainability Committee endorse the attached Ordinance and recommend that the Planning Board transmit the item to the City Commission with a favorable recommendation. |
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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 | | No | |
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| ATTACHMENTS: | | Description | Type |  | DRAFT ORD | Ordinance |
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