CLARIFICATIONS TO COA ADMINISTRATIVE APPEALS AND APPLICATION FORM REQUIREMENTS

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," IN ORDER TO CLARIFY THE STANDARDS AND PROCEDURE FOR ADMINISTRATIVE APPEALS BEFORE THE BOARD OF ADJUSTMENT; BY AMENDING ARTICLE X, ENTITLED "HISTORIC PRESERVATION," BY AMENDING DIVISION 3, ENTITLED "ISSUANCE OF CERTIFICATE OF APPROPRIATENESS/CERTIFICATE TO DIG/CERTIFICATE OF APPROPRIATENESS FOR DEMOLITION," TO CLARIFY THE REVIEW PROCEDURE FOR ADMINISTRATIVE LEVEL CERTIFICATES OF APPROPRIATENESS, INCLUDING APPEALS THEREOF; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. 

PLANNING ANALYSIS
The attached Ordinance amends Chapter 118 of the Land Development Regulations (LDR’s) of the City Code. There are two areas proposed to be amended, for clarification purposes, as more specifically summarized hereto:

Administrative Application Form Clarification
Subsections 118-562 and 118-563 are proposed to be amended to clarify that the building permit application may suffice as the application for administrative level certificates of appropriateness filed in accordance with section 118-563(d). This clarifies and confirms standard practice, as the information contained in the building permit application is identical to that information that would be required on a separate certificate of appropriateness application.

This information is clerical in nature and required solely for record keeping purposes. More importantly, the application form, in no way, impacts the substantive review of the certificate of appropriateness (i.e., the actual architectural plans and exhibits that clearly show the nature of the exterior modifications and improvements).

Administrative Level COA Appeal Clarification
As part of the Planning Department's review of building permit applications, the approval of a Certificate of Appropriateness (COA) is required in connection with new construction or modifications to existing buildings located in locally designated historic districts. Depending on the scope of work proposed, a COA may be approved either by the Historic Preservation Board (HPB) or by staff. The HPB's jurisdiction is limited to the exterior components of the building or structure and public interior spaces.

The staff of the HPB is authorized to review COA applications for minor repairs, demolition, alterations, and improvements pursuant to the requirements set forth in Section 118-563(d) of the LDR’s. For reference purposes, the following is the verbatim text from Section 118-563(d):

Notwithstanding subsections 118-563(a) through (c) above, all applications for certificates of appropriateness involving minor repairs, demolition, alterations and improvements (as defined below and by additional design guidelines to be adopted by the board in consultation with the planning director or designee) shall be reviewed by the staff of the board. The staff shall approve, approve with conditions, or deny a certificate of appropriateness or a certificate to dig after the date of receipt of a completed application. Such minor repairs, alterations and improvements include the following:

(1) Ground level additions to existing structures, not to exceed two stories in height, which are not substantially visible from the public right-of-way (excluding rear alleys), any waterfront or public parks, provided such ground level additions do not require the demolition or alteration of architecturally significant portions of a building or structure. For those lots under 5,000 square feet, the floor area of the proposed addition may not exceed 30 percent of the floor area of the existing structure or primary lot, whichever is less, with a maximum total floor area not to exceed 1,500 square feet. For those lots between 5,000 square feet and 10,000 square feet, the floor area of the proposed addition may not exceed 20 percent of the floor area of the existing structure or primary lot, whichever is less, with a maximum total floor area not to exceed 2,000 square feet. For those lots greater than 10,000 square feet, the floor area of the proposed addition may not exceed 10 percent of the floor area of the existing structure or primary lot, whichever is less, with a maximum total floor area not to exceed 5,000 square feet.

(2) Replacement of windows, doors, storefront frames and windows, or the approval of awnings, canopies, exterior surface colors, storm shutters and signs.

(3) Facade and building restorations, recommended by staff, which are consistent with historic documentation, provided the degree of demolition proposed is not substantial or significant and does not require the demolition or alteration of architecturally significant portions of a building or structure.

(4) Minor demolition and alterations to address accessibility, life safety, mechanical and other applicable code requirements, provided the degree of demolition proposed is not substantial or significant and does not require the demolition or alteration of architecturally significant portions of a building or structure.

(5) Minor demolition and alterations to rear and secondary facades to accommodate utilities, refuse disposal and storage, provided the degree of demolition proposed is not substantial or significant and does not require the demolition or alteration of architecturally significant portions of a building or structure.

In 2015, Section 118-9 of the LDR’s was created (Ordinance 2015-3977) to consolidate all procedures regarding appeals and re-hearings of land use matters into one section of the City Code. At this time, appeals of administrative decisions related to Subsection 118-563(d), pertaining to administrative level COA, were under the jurisdiction of the HPB. Additionally, appeals of administrative decisions to the Board of Adjustment (BOA) were specific to formal administrative determinations, and not to an appeal of an administrative COA. Also, under Ordinance 2015-3977 the appeal period pursuant to Subsection 118-563(d) increased from 5 days to 15 days.

In 2017, Section 118-9 was amended (Ordinance 2017-4083) to address a separate conflict with the Related Special Acts, which requires all administrative appeals, regardless of the LDR subsection, to be heard by the BOA. In this regard, appeals of administrative decisions related to Subsection 118-563(d) were moved from the jurisdiction of the HPB to the jurisdiction of the BOA, and the appeal timeframe was increased from 15 days to 30 days. However, this transfer of appeal jurisdiction did not clarify or establish publishing requirements or appeal dates for administrative level COA decisions. As such, the date of issuance of the building permit has been used as the date by which the 30-day appeal period commences.

The proposed amendment to Section 118-9 provides a clear distinction between appeals of formal administrative determinations and those approvals issued pursuant to Subsection 118-563(d). The proposed modifications to Section 118-9 also corrects the unintended lack of clarity currently existing due to the significant modifications made in 2017.  

It is important to note that due to the sheer volume of administrative level COA applications, as well as the limited nature of the work that is eligible for administrative review, the date of the issuance of the building permit has always been used as the timeframe for which an appeal of an administrative decision can be filed. This is important as a determination of timeliness for any appeal must be uniform.

Finally, the process for administrative level review of certificates of appropriateness has been carefully combined and coordinated with the review of building permits due to the sheer number of applications reviewed by Planning Department staff. The tight limits on the types of projects that are eligible for administrative level review, as more specifically noted in Section 118-563(d), were established to ensure that they are improvements that have minimal impact on the site and surrounding area. The current review process strikes a very careful balance between ensuring participation by affected parties and having an efficient permit review process.

As noted in the background section, the OIG has recommended revised procedures regarding the posting of decisions pertaining to administrative level certificates of appropriateness. However, any potential Code amendments that expand the regulatory process pertaining to administrative approvals will need a fiscal impact evaluation, as well as an analysis of the impacts on the overall building permit review process. Given the current number of permit applications subject to administrative certificate of appropriateness review, per year, the process currently in place provides a careful balance between thoroughly reviewing plans and allowing for a reasonable permit timeframe.

In conclusion, when the rules and regulations governing the process by which buildings are renovated become onerous, it can have the effect of discouraging much needed renovations and restorations. Indeed, the goal of historic districts is to incentivize and encourage the restoration and renovation of contributing properties and buildings within a given district. Attached are examples of completed projects where the certificate of appropriateness was reviewed and approved pursuant to Section 118-563(d). Given the challenges the City is facing regarding flooding, climate change and the condition of older buildings, a careful balance must continue to be achieved to ensure an equitable process for minor, historic renovations and restoration projects.

PLANNING BOARD REVIEW
The Planning Board held a public hearing on February 22, 2022, and transmitted the Ordinance to the City Commission with a favorable recommendation by a vote of 7-0. The Planning Board also recommended the following, with regard to noticing of certificates of appropriateness approved pursuant to Section 118-563(d):

1. The property shall be posted, by the project applicant, 15 days prior to the issuance of a building permit. The City shall provide the posting notice, and the applicant shall substantiate the posting has been effectuated on site.

2. The City should explore integrating the residents right to know platform with Energov, so that approvals of administrative level certificates of appropriateness can be e-mailed to residents of a particular area who elect to opt in to such notifications.

The proposal for posting sites, while workable from a sequencing standpoint, would create additional layers of process. In this regard, staff would need to separate those items that are subject to COA review pursuant to Section 118-563(d) and create a posting notification once all disciplines have approved the permit. Prior to the actual issuance of the permit, the applicant would be required to post the property, and wait 15 days for the permit to be issued (assuming no appeal of the COA is filed).

In addition to increasing the timeframe for obtaining the applicable permit, this option would also impact the review time of other permits by Planning staff, as additional time would need to be dedicated to the posting process. The Planning Department reviews a large number of these types of permits on a yearly basis. If the City Commission is interested in exploring this option, the Administration recommends that it be done as part of a separate referral, so that a more detailed evaluation of the process, and its impacts, can be undertaken.

The proposed integration of the residents right to know platform with Energov would take some time and effort, as well as engaging the vendor. If the City Commission is interested in this option, the IT and Planning Departments would need to engage the vendor (Tyler) to ascertain what would be required, as well as determine the fiscal and budget implications. Additionally, this option could result in residents who opt in potentially getting a large number of e-mails related to the issuance of administrative level permits.

UPDATE

On March 9, 2022, the City Commission approved the subject Ordinance at First Reading, including a waiver of the applicable fees in section 118-7 and Appendix A. Additionally, the City Commission requested that the recommendations of the Planning Board be incorporated. In this regard, the following is noted:

Posting of Properties
The revised Ordinance for Second Reading has been updated to include a posting requirement for applicable certificates of appropriateness reviewed in accordance with Section 118-563(d). In this regard, except for awnings, canopies, exterior surface colors, storm shutters and signs, certificates of appropriateness reviewed under Section 118-563(d) would require a posting of the property prior to the issuance of a building permit.

The posting would be effectuated by the project applicant, and located at the front of the property, in a manner and location clearly visible from the public right-of-way. The posting would indicate that an application for a certificate of appropriateness has been filed. Additionally, the posting would be for informational purposes only and would not be considered a form of notice.

Online Access to Certificates of Appropriateness
The Planning and IT Departments have been working diligently on a platform to be located on the City’s website that would provide a report of building permits and applicable certificates of appropriateness applied for pursuant to Section 118-563(d). It is anticipated that this report will be updated either daily or weekly, and there will be a link for residents and stakeholders to access for more detailed information.

The Administration is still exploring the feasibility of integrating the residents right to know portal with this City web-based report. Such an integration would take some time and effort, as well as engaging the vendor (Tyler Technologies). The IT and Planning Departments will provide a more detailed update regarding this initiative at the public hearing, and we may need to engage the vendor to ascertain what would be required, as well as determine the fiscal and budget implications. Additionally, as indicated previously, this option could result in residents who opt in potentially getting a large number of e-mails related to the issuance of administrative level permits. 

The Administration recommends the following:

1. The City Commission adopt the subject Ordinance.

2. The City Commission direct the Administration to further develop the web-based report for building permits and applicable certificates of appropriateness, including a potential integration with the residents right to know portal, and provide updates via LTC.