Ordinance 2020-4336 Demolition by Neglect-Presumption Clause
ORDINANCE NO. 2020-4336
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI
BEACH, FLORIDA, BY AMENDING CHAPTER 118, "ADMINISTRATION AND
REVIEW PROCEDURES," ARTICLE X, "HISTORIC PRESERVATION," DIVISION
1, "GENERALLY," BY AMENDING SECTION 118-503 THEREOF, ENTITLED
"SCOPE, POLICIES AND EXEMPTIONS," TO AMEND THE REGULATIONS
APPLICABLE TO CONTRIBUTING BUILDINGS THAT ARE DEMOLISHED
WITHOUT A CERTIFICATE OF APPROPRIATENESS; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the demolition of contributing structures without obtaining a Certificate of
Appropriateness from the Historic Preservation Board threatens the urban fabric, character, and integrity
of the City's historic districts;and
WHEREAS, City Code Section 118-503(b)(2) currently provides that "[t]he policy of the City of
Miami Beach shall be that a contributing building demolished without obtaining a certificate of
appropriateness from the historic preservation board, shall only be replaced with a new structure that
incorporates the same height, massing and square footage of the previous structure on site, not to exceed
the maximum FAR and height permitted under the City Code, with no additional square footage added";
and
WHEREAS,this Ordinance clarifies that the demolition of a contributing building without obtaining
a Certificate of Appropriateness raises a presumption that any replacement structure shall be limited to the
height, massing,square footage, and FAR of the demolished structure.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA.
SECTION 1. Chapter 118,"Administration and Review Procedures",Article X, "Historic Preservation",
Division 1, "Generally" is hereby amended as follows:
CHAPTER 118
ADMINISTRATION AND REVIEW PROCEDURES
ARTICLE X. — HISTORIC PRESERVATION
DIVISION 1. —GENERALLY
* * *
Sec. 118-503. - Scope, policies and exemptions.
* * *
(b) Policies.
(1)After-the-fact certificates of appropriateness for demolition. In the event any demolition as
described above or in subsection (b) of this section should take place prior to historic
preservation board review, the demolition order shall be conditioned to require the property
owner to file an "after-the-fact" application for a certificate of appropriateness for demolition to
the historic preservation board, within 15 days of the issuance of the demolition order. No
"after-the-fact" fee shall be assessed for such application. The board shall review the
demolition and determine whether and how the demolished building, structure, landscape
feature or the partially or fully demolished feature of the exterior or public interior space of a
structure, shall be replaced. The property owner shall also be required, to the greatest extent
possible, to retain, preserve and restore any demolished feature of a structure until such time
as the board reviews and acts on the "after-the-fact" application. In the event the property
owner fails to file an "after-the-fact" application for a certificate of appropriateness for
demolition to the historic preservation board within 15 days of the issuance of an emergency
demolitionorder, the city may initiate enforcement proceedings including proceedings to
revoke the certificate of use, occupational license, any active building permit(s) or certificate
of occupancy of the subject site, whichever is appropriate. Additionally, this article may be
enforced and violations may be punished as provided in section 114-8 of this Code; or by
enforcement procedures as set forth in the Charter and penalties as provided in section 1-
14 of this Code.
(2) Replacement of existing structures. The policy of the City of Miami Beach shall be a
presumption that a contributing building demolished without obtaining a certificate of
appropriateness from the historic preservation board, shall only be replaced with a new
structure that incorporates the same height, massing and square footage of the previous
structure on site, not to exceed the floor area ratio (FAR)of the demolished structure, and not
to exceed the maximum FAR and height permitted under the City Code, with no additional
square footage added. This policy presumption shall be applicable in the event a building
permit for new construction or for repair or rehabilitation is issued, and demolition occurs for
any reason, including, but not limited to, an order of the building official or the county unsafe
structures board. This policy presumption shall also be applicable to any request for an "after-
the-fact" certificate of appropriateness. This policy presumption may be rebutted, and the
historic preservation board may allow for the addition of more square footage, where
appropriate, not to exceed the maximum permitted under the City Code, if it is established to
the satisfaction of the historic preservation board that the following criteria have been satisfied:
a. The proposed new structure is consistent with the context and character of the
immediate area; and
b. The property owner made a reasonable effort to regularly inspect and maintain the
structure free of structural deficiencies and in compliance with the minimum maintenance
standards of this Code.
(3) Replication of demolished contributing structures. The historic preservation board shall
determine, on a case-by-case basis, whether the replication of an original, contributing ,
structure is warranted. For purposes of this subsection, replication shall be defined as the
physical reconstruction, including all original dimensions in the original location, of a structure
in totality, inclusive of the reproduction of primary facade dimensions and public area
dimensions with appropriate historic materials whenever possible, original walls, window and
door openings, exterior features and finishes, floor slab, floor plates, roofs and public interior
spaces. The historic preservation board shall have full discretion as to the exact level of
demolition and reconstruction required. If a building to be reconstructed is nonconforming,
any such reconstruction shall comply with all of the requirements of chapter 118, article IX, of
these land development regulations.
* * *
SECTION 2. Repealer.
All ordinances or parts of ordinances and all sections and parts of sections in conflict herewith
are hereby repealed.
SECTION 3. Codification.
It is the intention of the Mayor and City Commission of the City of Miami Beach,and it is hereby
ordained that the provisions of this ordinance shall become and be made part of the Code of the City of
Miami Beach, Florida, as amended. The sections of this ordinance may be renumbered or relettered to
accomplish such intention, and the word "ordinance" may be changed to"section" or other appropriate
word.
SECTION 4. Severability.
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction,then said holding shall in no way affect the validity
of the remaining portions of this ordinance.
SECTION 5. Effective Date.
This Ordinance shall take effect the 23'day of 4r , 2020.
PASSED AND ADOPTED this /3 day of /27 , 2020.
i :2-11--.—____
Dan Gelber, Mayor
ATTEST:
,1--- Z.51 lscLo It-L17",e,-9,,,...•,
Rafael E. Granado, Ci Cle =1. =IHCORP BORATED;
'%,y ,x :..;,�,_= APPROVED AS TO FORM
'�0H 20 --` AND LANGUAGE
AND FOR EXECUTION
-Q0 `� �, 3— yv
City Attorney Date
First Reading: February 12, 2020 M\(---
Second Reading: M.•rch 11, 2 20
Verified by:
Thomas R. Mooney, P
Planning Director
T:\Agenda\2020\02 February\Planning\Demo By Neglect Presumption Clause-First Reading ORD.docx
Ordinances -R5 C
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: May 13, 2020
9:15 a.m. Second Reading Public Hearing
SUBJECT: DEMOLITION BY NEGLECT-PRESUMPTION CLAUSE
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF
MIAMI BEACH, FLORIDA, BY AMENDING CHAPTER 118,
"ADMINISTRATION AND REVIEW PROCEDURES," ARTICLE X,
"HISTORIC PRESERVATION," DIVISION 1, "GENERALLY," BY AMENDING
SECTION 118-503 THEREOF, ENTITLED "SCOPE, POLICIES AND
EXEMPTIONS," TO AMEND THE REGULATIONS APPLICABLE TO
CONTRIBUTING BUILDINGS THAT ARE DEMOLISHED WITHOUT A
CERTIFICATE OF APPROPRIATENESS; AND PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE.
RECOMMENDATION
The administration recommends that the City Commission adopt the subject ordinance.
BACKGROUND/HISTORY
On July 17, 2019, at the request of Commissioner Ricky Arriola, the City Commission referred a
discussion item to the Land Use and Development Committee (Item C4 0), pertaining to the
establishment of penalties for property owners engaging in demolition by neglect. The item was
discussed at the October 30, 2019 meeting, and the Land Use Committee recommended that the
City Commission refer an amendment to chapter 118, article X, pertaining to a presumption clause, to
the Planning Board.
On October 30, 2019, the LUDC recommended that the City Commission referred the proposed
amendment to the Planning Board. On December 11, 2019, the City Commission referred the
proposed amendment to chapter 118, article X, pertaining to a presumption clause, to the Planning
Board and Historic Preservation Board.
On January 14, 2020, the Historic Preservation Board reviewed the proposed ordinance amending
Section 118-503 of the City Code to create a presumption for the reconstruction of demolished
contributing structures. The Board voted unanimously (5-0, 2 absent) to transmit a favorable
recommendation to the Planning Board and City Commission for adoption of the ordinance.
ANALYSIS
PLANNING ANALYSIS
Page 611 of 865
Attached is a proposed amendment to chapter 118, Article X of the Land Development Regulations,
which creates a presumption clause if a contributing structure is demolished, for any reason,
including, but not limited to demolition by neglect, without first obtaining a Certificate of
Appropriateness from the Historic Preservation Board. The following is the specific draft amendment
to section 118-503:
Sec. 118-503. -Scope, policies and exemptions.
(b) Policies.
(1)After-the-fact certificates of appropriateness for demolition. In the event any demolition as
described above or in subsection (b) of this section should take place prior to historic
preservation board review, the demolition order shall be conditioned to require the property owner
to file an "after-the-fact" application for a certificate of appropriateness for demolition to the
historic preservation board, within 15 days of the issuance of the demolition order. No "after-the-
fact" fee shall be assessed for such application. The board shall review the demolition and
determine whether and how the demolished building, structure, landscape feature or the partially
or fully demolished feature of the exterior or public interior space of a structure, shall be replaced.
The property owner shall also be required,to the greatest extent possible, to retain, preserve and
restore any demolished feature of a structure until such time as the board reviews and acts on the
"after-the-fact" application. In the event the property owner fails to file an "after-the-fact"
application for a certificate of appropriateness for demolition to the historic preservation board
within 15 days of the issuance of an emergency demolition order, the city may initiate
enforcement proceedings including proceedings to revoke the certificate of use, occupational
license, any active building permit(s) or certificate of occupancy of the subject site, whichever is
appropriate.Additionally, this article may be enforced and violations may be punished as provided
in section 114-8 of this Code; or by enforcement procedures as set forth in the Charter and
penalties as provided in section 1-14 of this Code.
(2) Replacement of existing structures. The policy of the City of Miami Beach shall be a
presumption that a contributing building demolished without obtaining a certificate of
appropriateness from the historic preservation board, shall only be replaced with a new structure
that incorporates the same height, massing and square footage of the previous structure on site,
not to exceed the FAR of the demolished structure, and not to exceed the maximum FAR
and height permitted under the City Code, with no additional square footage added. This valley
presumption shall be applicable in the event a building permit for new construction or for repair
or rehabilitation is issued, and demolition occurs for any reason, including, but not limited to, an
order of the building official or the county unsafe structures board. This policy presumption
shall also be applicable to any request for an "after-the-fact" certificate of appropriateness. This
pokey presumption may be rebutted, and the historic preservation board may allow for the
addition of more square footage, where appropriate, not to exceed the maximum permitted under
the City Code, if it is established to the satisfaction of the historic preservation board that the
following criteria have been satisfied:
a. The proposed new structure is consistent with the context and character of the immediate
area; and
b. The property owner made a reasonable effort to regularly inspect and maintain the structure
free of structural deficiencies and in compliance with the minimum maintenance standards of this
Code.
(3) Replication of demolished contributing structures. The historic preservation board shall
determine, on a case-by-case basis, whether the replication of an original, contributing structure
Page 612 of 865
is warranted. For purposes of this subsection, replication shall be defined as the physical
reconstruction, including all original dimensions in the original location, of a structure in totality,
inclusive of the reproduction of primary facade dimensions and public area dimensions with
appropriate historic materials whenever possible, original walls, window and door openings,
exterior features and finishes, floor slab, floor plates, roofs and public interior spaces. The historic
preservation board shall have full discretion as to the exact level of demolition and reconstruction
required. If a building to be reconstructed is nonconforming, any such reconstruction shall comply
with all of the requirements of chapter 118, article IX, of these land development regulations.
From a legal standpoint, a presumption shifts the burden of proof from one party to the other. In the
case of an after-the-fact Certificate of Appropriateness (C of A) for demolition, replacing the word
`policy' with 'presumption', more clearly places the legal burden on the property owner of a building
that was demolished without a C of A to demonstrate evidence why the HPB should allow the
building to be replaced by something other than a structure that does not exceed the height,
massing,and square footage of the previous structure on site (which is the presumed default).
PLANNING BOARD REVIEW
On January 28, 2020, the Planning Board held a public hearing and transmitted the ordinance to the
City Commission with a favorable recommendation by a vote of 7-0. The Planning Board also
recommended that when a contributing structure is demolished without first obtaining a certificate of
appropriateness, in addition to all other requirements under LDR's, a notice of such action be
recorded against the property in the public records. The notice would serve to advise potential future
buyers of the property, or any other interested party, that a contributing structure was demolished
without obtaining a certificate of appropriateness, in violation of Chapter 118, Article X of the City
Code.
The administration and the City Attorneys office are exploring ways to address this recommendation,
potentially as part of an LDR amendment, or through a policy mechanism.
UPDATE
On February 12, 2020 the City Commission approved the subject ordinance at first reading with
no changes.Additionally, pursuant to section 118-162(c) of the Land Development Regulations
of the City Code, the City Commission waived the application fees. The item was deferred at
the March 18, 2020 and April 22, 2020 City Commission meetings.
CONCLUSION
The administration recommends that the City Commission adopt the subject ordinance.
Applicable Area
Citywide
Is this a "Residents Right Does this item utilize G.O.
to Know" item. pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Legislative Tracking
Planning
Page 613 of 865
Sponsor
Commissioner Ricky Arriola and Co-sponsored by Commissioner Gongora and Mayor Gelber
ATTACHMENTS:
Description
o Ordinance
Page 614 of 865