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Ordinance 2022-4502 Reform of Automatic Stay Provisions (Including Planning Board Recommendations) ORDINANCE NO 2022-4502 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 THE CITY'S RULES OF PROCEDURE REGARDING REHEARINGS AND APPEALS OF LAND USE BOARD DECISIONS, INCLUDING PROVISIONS GOVERNING THE AUTOMATIC STAY PENDING APPEAL; AND PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the Land Development Regulations authorize the Design Review Board (DRB) to grant design review approval, and the Historic Preservation Board (HPB) to grant certificates of appropriateness; and WHEREAS, quasi-judicial hearings on individual DRB and HPB applications require public notice to neighboring property owners; and WHEREAS, the City's Land Development Regulations, at Chapter 118, Article IV, establish rules of procedure for rehearings and appeals of decisions of the DRB and HPB; and WHEREAS, pursuant to City Code Section 118-9(c)(5), "[a]n appeal of a board order stays all work on the premises and all proceedings in furtherance of the action appealed from," unless one of two exceptions applies; and WHEREAS, accordingly, the Land Development Regulations do not permit the issuance of a building permit, certificate of occupancy, or a business tax receipt while an appeal of a land use board order is pending; and WHEREAS, certain appeals can delay the development of a project that has obtained board approval and that otherwise complies with the Code, potentially rendering the project financially impracticable; and WHEREAS, the Mayor and City Commission now desire to amend the City's rules of appellate procedure, to promote efficiency, safeguard procedural due process, and guard against abuse; and WHEREAS, the amendments in this Ordinance shall apply retroactively to pending appeals and prospectively to future appeals; and WHEREAS, these amendments do not affect the right of an appellant with a meritorious claim to seek an injunction, stay, or other relief from a court of competent jurisdiction, as may be permitted by Florida law; and 1 WHEREAS,the amendments set forth below are necessary to accomplish all of the above objectives. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. Chapter 118 is hereby amended as follows: CHAPTER 118 ADMINISTRATION AND REVIEW PROCEDURES * * * ARTICLE I. IN GENERAL * * * Sec. 118-9. Rehearing and appeal procedures. The following requirements shall apply to all rehearings and appeals to or from the city's land use boards unless otherwise more specifically provided for in these land development regulations, and applicable fees and costs shall be paid to the city as required under section 118-7 and appendix A to the City Code. As used herein, "land use board(s)" shall mean the board of adjustment, design review board, historic preservation board and planning board. * * * (c) Appeals of land use board applications decisions. * * * (3) Eligible appeals of the design review board or historic preservation board shall be filed in accordance with the process as outlined in subsections A through O E below: * * * E. Deadlines. Oral argument for a design review board or historic preservation board appeal shall take place within 90 days of the date the appeal is filed, unless a lack of quorum of the city commission, or the availability of the special magistrate, requires the oral argument to be continued to a later date. (i)Answer brief. The respondent may serve an answer brief within 30 days of the City's written acceptance of the petition. (ii) Reply brief. The petitioner may serve a reply brief within 15 days of the filing of the answer brief. (iii) Oral argument. Oral argument shall occur within 90 days of the City's acceptance of the petition, except that oral argument may be continued to a future date due to lack of quorum of the City Commission or the unavailability of the special magistrate. 2 (iv) Decision. A decision of the city commission or special magistrate shall be rendered within 120 days of the date the appeal is filed. These deadlines may be modified by consent of the parties to the appeal. * * * (5) Stay of work and proceedings on appeal. An appeal of a land use board order stays all work on the premises and all proceedings in furtherance of the action appealed from, unless one of the exceptions below applies: (i) Imminent peril to life or property. A stay would cause imminent peril to life or property. In such a case, proceedings or work shall not be stayed except by a restraining order, which may be granted by the board or by a court of competent jurisdiction, upon application for good cause shown; (ii) Specified appeals from the Planning Board. As applicable only to an appeal arising from the planning board's approval of a conditional use permit, the city may accept, for review purposes only, a building permit application during a pending appeal in circuit court. The applicant shall be required to pay all building permit fees, which fees shall be nonrefundable. Despite the foregoing, no building permit shall issue while the circuit court appeal is pending. Should the decision on the circuit court appeal (petition for certiorari) decision be rendered in favor of the conditional use permit applicant, the applicant may proceed with construction and operations, excluding entertainment operations, pending any further appeals to the Third District Court of Appeal or other appellate proceedings, so long as the following conditions are met: a. The building permit may issue and shall remain active until the final resolution of all administrative and court proceedings; b. No final certificate of occupancy (CO) or certificate of completion (CC) shall be issued, and no entertainment operations or entertainment business shall commence or take place, until the final resolution of all administrative and court proceedings; c. The conditional use permit was appealed by a party other than (i) the city, or (ii) an applicant appealing a denial of a conditional use permit application; d. The property subject to the conditional use permit is located within (i) a commercial district, and (ii) a historic district; e. The scope of the conditional use permit is limited to modifications to an existing structure; f. The applicant shall prior to the issuance of the building permit, either: (i) place funds in escrow, or(ii) obtain a bond, either of which must be in an 3 amount that is at least equal to or greater than 100 percent of the value of the work proposed under the building permit; g. The applicant is not seeking the demolition of any portion of a contributing structure; and h. In the event that the conditional use permit is reversed on appeal, the applicant must immediately amend or abandon the building permit or building permit application without any liability to the city, and a CC or CO shall not be issued. Additionally, no BTR for entertainment shall issue. In order for a building permit to issue pursuant to this subsection (c)(5)(ii), pending any further appeals to the Third District Court of Appeal or other appellate proceedings,the applicant shall be required to comply with all of the conditions in subsections (c)(5)(ii) a. through h., as well as all conditions of the conditional use permit. The applicant shall also be required to execute a written agreement (in a form acceptable to the city attorney) holding the city harmless and indemnifying the city from any liability or loss resulting from the underlying appellate or administrative proceedings, any civil actions relating to the application of this subsection (c)(5)(ii), and any proceedings resulting from the issuance of a building permit, and the non-issuance of a TCO, TCC, CC, CO or BTR for the property. Such written agreement shall also bind the applicant to all requirements of the conditional use permit, including all enforcement, modification. and revocation provisions; except that the applicant shall be ineligible to apply for any modifications to the conditional use permit or any other land use board order impacting the property, until the final resolution of all administrative and court proceedings as certified by the city attorney. Additionally, the applicant must agree that in the event that the conditional use permit is reversed, the applicant shall be required to restore the property to its original condition. The city may utilize the bond to ensure compliance with the foregoing provisions. (iii) Other appeals from land use board decisions. Except for appeals arising from the planning board's approval of a conditional use permit, which are governed by subsection (ii) above, the appeal of any land use board order for a property located outside the RS-1, RS-2, RS-3, or RS-4 single-family zoning districts, if timely and properly filed subiect to the requirements of this section or the Florida Rules of Appellate Procedure (as applicable), shall stay all work on the premises and all proceedings in furtherance of the action appealed from for a period of 120 days from the date the appeal is filed or until such time as the applicant obtains a favorable ruling by the body or court with jurisdiction at the first level of appeal (whether the special magistrate, for appeals from the historic preservation board; the city commission, for appeals from the design review board; or the circuit court, for appeals of decisions on variances and • appeals from other land use boards), whichever occurs first. Notwithstanding the foregoina, and only as applicable to appeals before the city commission or special magistrate, in the event that a decision is not rendered within 120 days due to a lack of quorum of the city commission or the unavailability of the special magistrate,the stay shall remain in place until such time as the appeal is ruled on by the city 4 commission or special magistrate. The provisions of this paragraph shall not be applicable to appeals filed by the city manager or the applicant for the land use board approval. In order to lift the automatic stay under this subsection (c)(5)(iii), an applicant shall first be required to satisfy the following requirements: a. The applicant shall execute a written agreement (in a form acceptable to the city attorney) to hold harmless and indemnify the city from any claim, liability, or loss resulting from the approval of the application, the underlying appellate proceedings, the application of this subsection (c)(5)(iii), the issuance of a buildina permit, and/or the non-issuance of a final certificate of completion (CC) or a final certificate of occupancy (CO) for the property. b. The written agreement shall bind the applicant to all requirements of the conditions of the applicable order of the respective land use board, including all enforcement, modification. and revocation provisions; except that the applicant shall be ineligible to apply for any modifications to the board order that are subject to the appeal. until the final resolution of all administrative and court proceedings as certified by the city attorney. Notwithstanding the foregoina, an applicant shall be eligible to apply for modifications that, as determined by the planning director and the city attorney, (i) are minor, (ii)do not affect the portions of the project that are challenged in the appeal, or(iii) are necessary to effectuate a settlement. c. The applicant shall agree that in the event that the decision of the board is reversed, the applicant shall be required to restore the property to its previous condition, except that portions of the project • that are not affected by the final order or resolution on the appeal, as determined by the planning director and city attorney, may remain, unless subsequent modifications are approved by the respective land use board. d. No final certificate of occupancy (CO) or final certificate of completion (CC), shall be issued until the final resolution of the appeal (including all judicial proceedings), as determined by'th a city attorney. SECTION 2. REPEALER. All ordinances or parts of ordinances and all section and parts of sections in conflict herewith are hereby repealed. SECTION 3. CODIFICATION. It is the intention of the City Commission, 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, as amended; that the sections of this Ordinance may be re-numbered or re-lettered to accomplish such intention; and that the word `ordinance may be changed to "section" or other appropriate word. 5 SECTION 4. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect ten days following adoption. SECTION 6. APPLICABILITY. This Ordinance shall apply both retroactively to pending appeals, and prospectively to future appeals. PASSED and ADOPTED this 620 day of J.14t , 2022 , 7-7 -11---____ Dan Gelber, Mayor „_____d ATTEST: JUL ? 52022 Rafael E. Granado, City Clerk 4"B ‘4i8 E77-.911"',, s APPROVED AS TO Ild(ORP ORAMED,•' = FORM AND LANGUAGE `9J & FOR EXECUTION na--------- -2 - ii- --. ....)- City Attorney Lw__ Date First Reading: July 8, 2022 Second Reading: Jul 2022 Verified By: . I FR__ Thomas R. Mooney, AICP Planning Director BOLD DOUBLE-UNDERSCORE Denotes Recommendations of the Planning Board on June 21, 2022 T:\Agenda\2022\7_July 2022\Planning\Reform of LUB Appeal Process and Automatic Stay Provisions-First Reading ORD with PB Recommendations.docx 6 Ordinances- R5 B MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Aline T. Hudak, City Manager DATE: July 20, 2022 10:10 a.m. Second Reading Public Hearing SUBJECT:REFORM OF AUTOMATIC STAY 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," BYAMENDING SECTION 118-9, ENTITLED "REHEARING AND APPEAL PROCEDURES," TO AMEND THE CITY'S RULES OF PROCEDURE REGARDING REHEARINGS AND APPEALS OF LAND USE BOARD DECISIONS, INCLUDING PROVISIONS GOVERNING THE AUTOMATIC STAY PENDING APPEAL; AND PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. RECOMMENDATION The Administration recommends that the City Commission adopt the subject Ordinance. BACKGROUND/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 2022, LUSC meeting. 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: Page 581 of 1502 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. 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 draft Ordinance transmitted by the Planning Board on June 21, 2022, consists of more limited modifications to Sec. 118-9 of the LDR's, as recommended by the LUSC.The following is a summary of the key provisions of the Ordinance scheduled to be considered by the City Commission at First Reading on July 8, 2022: Appeal Timeframe for DRB and HPB Oral argument for a design review board or historic preservation board appeal shall take place within 90 days of the date the appeal is filed, unless a lack of quorum of the City Commission, or the availability of the special magistrate, requires the oral argument to be continued to a later date. The following are the specific timeframes and deadlines proposed for such appeals: • Answer brief. The respondent may serve an answer brief within 30 days of the City's written acceptance of the petition. • Reply brief. The petitioner may serve a reply brief within 15 days of the filing of the answer brief. • Oral argument. Oral argument shall occur within 90 days of the City's acceptance of the petition, except that oral argument may be continued to a future date due to lack of quorum of the City Commission or the unavailability of the special magistrate. • Decision. A decision of the City Commission or special magistrate shall be rendered within 120 days of the date the appeal is filed. These deadlines may be modified by consent of the parties to the appeal. Page 582 of 1502 Stay of Work and Proceedings on Appeal The proposed Ordinance applies a new standard for stay of work related to appeals of land use board orders for projects located outside of single-family districts or that are not related to conditional use permits. Specifically, if an appeal is timely and properly filed subject to the requirements of Section 118-9 or the Florida Rules of Appellate Procedure (as applicable), the stay of work on the premises in furtherance of the action appealed from shall be for a period of 120 days from the date the appeal is filed, or until such time as the appeal is ruled on by the body or court with jurisdiction at the first level of appeal,whichever occurs first. The amendment also provides that these revised stay provisions are not applicable to appeals filed by the City Manager or the applicant for the land use board approval. PLANNING BOARD REVIEW The Planning Board held a public hearing on June 21, 2022 and transmitted the Ordinance recommended by the LUSC to the City Commission with a favorable recommendation (5-1). The Planning Board also recommended the following additional safeguards be included in the Ordinance for approval at First Reading on July 8, 2022: 120 Stay Extension In order to account for the unforeseen availability of the City Commission or the special magistrate, the following additional provision recommended: 1. In the event of lack of quorum of the City Commission or the unavailability of the special magistrate, the stay of all work on the premises and all proceedings in furtherance of the action appealed from shall remain in place for a period exceeding 120 days and until such time as the appeal is ruled on by the City Commission or special magistrate. Indemnification The following hold harmless provisions to indemnify the City against any liability resulting from work that takes place prior to an appeal ruling are recommended: 1. The applicant shall execute a written agreement (in a form acceptable to the city attorney) holding the city harmless and indemnifying the city from any liability or loss resulting from the underlying appellate or administrative proceedings, any civil actions relating to the application of this subsection (c)(5)(iii), and any proceedings resulting from the issuance of a building permit, and the non-issuance of a final certificate of completion (CC) or a final certificate of occupancy (CO for the property. 2. The written agreement shall bind the applicant to all requirements of the conditions of the applicable order of the respective land use board, including all enforcement, modification. and revocation provisions; except that the applicant shall be ineligible to apply for any modifications to the board order impacting the property that are subject to the appeal, until the final resolution of all administrative and court proceedings as certified by the city attorney. Notwithstanding the foregoing, this shall not apply to those land use board amendments that are part of a settlement of the appeal. Page 583 of 1502 3. The applicant shall agree that in the event that the decision of the board is reversed, the applicant shall be required to restore the property to its previous condition, unless otherwise approved for modification by the DRB or HPB, as applicable. Occupancy The following Certificate of Occupancy (CO) provision to minimize the potential impact of uses prior to a final appeal ruling being issued is recommended: 1. No final certificate of occupancy (CO) or final certificate of completion (CC), shall be issued until the final resolution of the appeal (including all judicial proceedings), as determined by the city attorney. These recommendations will be presented to the City Commission on the floor of the July 8, 2022 City Commission meeting. They are also included, for ease of reference, within the body of the attached Ordinance in BOLD DOUBLE UNDERSCORE. SUMMARY The Administration and the City Attorney's Office believe that the proposed Ordinance represents a fair and balanced approach to ensuring a just appellate process, while not causing undue delays for project applicants. Should an appellant desire to extend the stay beyond first tier review(City Commission or Historic Preservation Special Magistrate) an 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. UPDATE First Reading of the subject Ordinance was scheduled for July 8, 2022, at which time the recommendations of the Planning Board were to be presented. The Administration will update the Commission on any changes included at First Reading, including any revised versions of the Ordinance under separate cover. SUPPORTING SURVEY DATA Improve Land Use Board Process FINANCIAL INFORMATION No Fiscal Impact Expected CONCLUSION The Administration recommends that the City Commission adopt the subject Ordinance. Applicable Areal Not Applicable Is this a"Residents Right Does this item utilize G.O. to Know" item. pursuant to Bond Funds? City Code Section 2-14? Yes Yes Page 584 of 1502 Legislative Tracking Planning Sponsor Mayor Dan Gelber ATTACHMENTS: Description ❑ Ordinance Page 585 of 1502