PLANNING BOARD CUP APPEAL STAYS:
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 "ADMINISTRATION AND REVIEW PROCEDURES," BY AMENDING SECTION 118-9, ENTITLED "REHEARING AND APPEAL PROCEDURES," TO ALLOW THE ISSUANCE OF A BUILDING PERMIT TO AN APPLICANT WHOSE PLANNING BOARD CONDITIONAL USE APPROVAL APPLICATION IS ON APPEAL, ALLOWING AN EXCEPTION TO THE CITY'S RULE THAT REQUIRES FINAL RESOLUTION OF ALL ADMINISTRATIVE AND COURT PROCEEDINGS, SO LONG AS THE CERTAIN CONDITIONS CONTAINED IN 118-9 ARE COMPLIED WITH, AND PROVIDED THE APPLICANT EXECUTES A WRITTEN AGREEMENT HOLDING THE CITY HARMLESS AND INDEMNIFYING THE CITY FROM ANY LIABILITY OR LOSS SHOULD THE COURT PROCEEDINGS NOT END FAVORABLY TO THE APPLICANT; AND PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY; AND AN EFFECTIVE DATE.

HISTORY
On October 18, 2017, at the request of former Mayor Phillip Levine, the City Commission made a dual referral of the subject amendment to the Land Use and Development Committee and the Planning Board. On October 30, 2017, the Land Use Committee discussed the proposed amendment and gave a positive recommendation. Additionally, Commissioner John Elizabeth Aleman agreed to co-sponsor the original referral of the proposed ordinance.

PLANNING ANALYSIS
The proposal has been put forth by a private property owner to modify the requirements of the City Code for appeals arising from the Planning Board’s approval of a conditional use permit. Currently, when an application to the City’s Land Use Boards is appealed, all work on the premises and all proceedings in furtherance of the action appealed from, are stayed. The only limited exception is to protect imminent peril to life or property.

The original modifications proposed to permit the issuance of building permits, a certificate of occupancy, and a business tax receipt, all while an appeal is pending, under the conditions outlined in the original draft ordinance. This would have allowed a business to commence full operations even while an appeal is pending. The only Conditional Use Permit that is currently pending appeal is PB16-0066, 1601-1618 Drexel Avenue, Time Out Market.

As stated in Section 118-91 of the City Code, the purpose of the conditional use procedure is to:

“establish a process which is designed to determine if certain uses, referred to as conditional uses in this article, should be permitted, at a given location. Special review of conditional uses is required not only because these generally are of a public or semi-public character and are essential and desirable for the general convenience and welfare of the community, but also because the nature of the uses and their potential impact on neighboring properties, requires the exercise of planning judgment as to location and site plan.”

Due to the very nature of conditional use permits, which generally encompass high occupancies (typically from as little as 200 to over 1000 people), and often include entertainment, they have the potential to impact surrounding properties. As proposed, the ordinance would be limited to appeals of CUP’s for sites that are commercially zoned and located within a local historic district. However, it must be pointed out that many areas of the city, although zoned commercial, either contain or are abutting residential uses and zoning districts.

The intent of this legislation, according to the proposer, is to address appeals that can unnecessarily delay a project, or result in the project not moving forward. Staff has identified the following issues that should be considered by the City Commission as part of this policy deliberation:

• Those instances where a conditional use permit may not have been properly issued by the Planning Board because the Board did not follow established and required criteria, policies and/or procedures, or did not provide procedural due process.

• Those instances where an ‘applicant’ seeks a very intense Conditional Use permit, is denied, appeals the denial and uses the new stay provisions to operate.

• A stay does not deprive a property owner from use of the property in accordance with the applicable regulations and allowable uses for a zoning district, or in accordance with previously issued conditional use permits.

• Should a CUP on appeal be overturned in court, a substantial financial investment may be required to return the property back to its former condition/operation, if the applicant was eligible and elected to move forward with a permit and BTR. While an applicant would be required to indemnify the City of all liability, there is no practical mechanism to force the property owner to modify the space or operation.

• If an applicant were to spend a large amount of resources on an interior build out and not be able to operate the venue due to a CUP being overturned, the City could find itself in an awkward position, as full authorization to execute the work was issued in the form of a building permit. In this regard, as the regulations governing a building permit are State mandated, careful consideration by the City Commission should be exercised, should the proposal move forward.

PLANNING BOARD REVIEW
On November 21, 2017, the Planning Board transmitted the proposed Ordinance Amendment to the City Commission with a favorable recommendation. The Planning Board also recommended a number of changes, supported by the proposer, which would remove the allowance to operate a venue that is under appeal. The recommendations of the Planning Board would limit any activity during an appeal to preparing, submitting and being issued a building permit only. The draft ordinance entitled ‘Planning Board Version’, which delineated all of the changes proposed, was submitted to the City Commission for consideration on December 13, 2017.

SUMMARY/ UPDATE
The subject Ordinance came before the City Commission for First Reading on December 13, 2017, at which time the sponsor of the item withdrew the original version of the legislation (LUDC version) and instead put forward the Planning Board version. After discussing the proposal the item was deferred to the January 17, 2018 meeting.

On January 17, 2018 the City Commission discussed the proposal and approved, at First Reading, an option put forth by Mayor Gelber (Option ‘B’). Additionally, the approval at First Reading limited the applicability of the ordinance to Local Historic Districts. The attached Ordinance includes these updates.

Subsequent to First Reading approval of the Ordinance, Vice-Mayor John Elizabeth Aleman withdrew from being the sponsor of the legislation. Commissioner Ricky Arriola is now the sponsor of the proposal.

As indicated during the discussion at First Reading in December, the Administration has concerns with the overall scope of the proposal, particularly the unintended consequences down the road. Specifically, if a CUP on appeal was ever overturned at the conclusion of the appellate process, the City could find itself in an awkward position, as full authorization to execute work on site could be issued in the form of a building permit. In addition to the regulations governing a building permit being State mandated, there could be pressure placed on the City to adopt future code amendments, in order to accommodate a built space.

The revised proposal (Option ‘B’) does create a higher bar for an applicant to comply with, including a requirement for a performance bond or escrow of 100% of the value of the work proposed. Additionally, the applicable area has been limited to local historic districts. Additionally, requiring stay on first tiered appeal is consistent with existing code. Furthermore, it ensures that the Court reviewing the decision is looking at the merits to determine whether due process was provided; whether there was competent substantial evidence in the record to support the decision; and that the correct law was applied. Any subsequent appeal would be considered discretionary by the Court. In fact, second tiered review is not used to redress mere legal error. Rather, it provides a safety net to correct a miscarriage of justice when no other remedy is available. Allstate Ins. Co. Kaklamanos, 843 2d. 885, 889 (Fla. 2003). This standard is extremely difficult to meet and, therefore, it would be difficult to overturn the lower court decision.

Based upon the foregoing, the City could legally accommodate the proposed modification to the code to allow construction in the interim of a second tiered appeal, provided all the safeguards identified in the revised ordinance are provided by the applicant. Notwithstanding these positive, more protective changes, the Administration continues to recommend that careful consideration be exercised by the City Commission, should the proposal move forward.

On February 14, 2018 the City Commission opened and continued the item to a date certain of March 7, 2018.