REFORM OF REHEARING AND APPEAL 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 AND CLARIFY THE CITY'S RULES OF PROCEDURE RELATING TO REHEARINGS AND APPEALS OF DECISIONS OF THE CITY'S LAND USE BOARDS, INCLUDING TIMEFRAMES FOR CONSIDERING REHEARINGS AND NOTICE REQUIREMENTS; AND PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. 

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, pertaining to the automatic stay provision for appeals. 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 recommended by the LUSC on September 28, 2022:

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.

This is recommended 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.

PLANNING BOARD REVIEW
The Planning Board held a public hearing on October 25, 2022 and transmitted the Ordinance to the City Commission with a favorable recommendation (5-0).

SUMMARY
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.

Additionally, after the Ordinance was transmitted by the Planning Board on October 25, 2022, the City Attorney identified a concern with the following proposed provision in 118-9(a):

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. 

As drafted, this provision would automatically deem a petition for re-hearing denied if the applicable board, for any reason, fails to act upon the request at the first available meeting.  In order to address this concern, the following non-substantive modification is proposed:

A duly noticed rehearing may only be continued to a future meeting on the basis of a lack of quorum or cancellation of a meeting.

The revised text noted above is included in the attached draft Ordinance for First Reading and is denoted by double underscore.

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 an objective 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 always 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

The subject Ordinance was approved at First Reading on December 14, 2022, with no changes.