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LTC 381-2021 Apartment Hotels 310 Meridian Avenue 226 Jefferson Avenue 333 Jefferson AvenueMIAMI BEACH OFFICE OF THE CITY ATTORNEY LTC No . 381-2021 TO: Mayor Dan Gelber Members of the City Commission LETTER TO COMMISSION FROM: Rafael A. Paz, Acting City Attorn ~~ ~ Alina T. Hudak, City Manager lf' 1 (_) DATE: September 14, 2021 SUBJECT: Apartment Hotels 310 Meridian Avenue 226 Jefferson Avenue 333 Jefferson Avenue At the request of several members of the City Commission, this Letter to Commission ("L TC") has been drafted to address the inquiries the Mayor and City Commission, and City staff, have received from the public in connection with active permits to renovate and/or remodel existing apartment hotels in the South of Fifth Street neighborhood for the following addresses: 310 Meridian Avenue, 226 Jefferson Avenue, and 333 Jefferson Avenue. With respect to the specific questions submitted by the public, this L TC includes information that is both responsive and relevant to those questions and the City Commission's consideration of all of the pertinent issues. A. Background -Apartment Hotels Apartment hotels were included in the LDRs some years ago to better identify buildings that had a balanced mix of apartment and hotel units. When areas of the City were more seasonal in nature, these types of buildings were popular as some of the units would be occupied during the late fall, winter and early spring months, by seasonal visitors. In the past, apartment hotel uses have provided options for older, historically significant buildings to be renovated, preserved and restored. Apartment Hotels are defined as follows under Sec. 114-1 of the City Code: Apartment hotel means a building containing a combination of suite hotel unit, apartment units and hotel units, under resident supervision, and having an inner lobby through which all tenants must pass to gain access. An apartment hotel must contain at least one unit apartment. Recently, on August 18, 2021, the Planning Board transmitted a proposed Ordinance to the City Commission with a favorable recommendation to prohibit apartment hotel uses in the R-PS1 and R-PS2 zoning districts. As such, zoning in progress has been initiated, and no new building permit application may be accepted, and no new permit may be issued, for any apartment hotel use in these districts. We are commilled to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. Letter to Commission -Apartment Hotels September 14, 2021 Page2 The property at 226 Jefferson Avenue is located within the R-PS1 Zoning District, and the properties at 310 Meridian Avenue and 333 Jefferson Avenue are located within the R- PS2 Zoning District. Additionally, 310 Meridian Avenue and 333 Jefferson Avenue fall within the boundaries of the Ocean Beach Local Historic District and both structures on these properties are classified as contributing. Under the current requirements of the Land Development Regulations (LDRs) of the City Code, hotels, suite hotels, and the short-term rental of residential apartment units are prohibited in the R-PS1 and R-PS2 districts. However, until August 18, 2021, as detailed above, apartment hotels were permitted in these zoning districts. B. The Office of the Inspector General's Independent Review of this Matter In response to the public's request for an independent investigation of the permitting/approval process for the subject properties, the Mayor referred this matter to the Office of Inspector General, which has opened an investigation. This L TC confirms that the Inspector General is conducting a full independent review of this matter, as requested by hundreds of members of the public in communications to the City. Under the City Charter, the Inspector General is expressly charged with investigating any matter involving any issue related to the performance of any City employee's duties, and has full authority to review and investigate any complaint submitted by any member of the public. The Inspector General is currently interviewing City personnel in connection with the issuance of the respective Building Permits, including the Planning Department's review of the construction documents in connection with its review and approval for a Certificate of Appropriateness in accordance with Section 118-563 of the City Code. C. City of Miami Beach Regulatory Officials Acting in their Regulatory Capacities (Semi-Autonomous Personnel) 1. Summary. The City's review of building permit applications is a regulatory function that requires an objective application of the Florida Building Code and the City's LDRs. The relevant city officials who are charged with this function as it relates to apartment hotels are the Building Official and the Planning Director, who act in their regulatory capacities as semi- autonomous personnel when they execute these functions. Neither the Mayor, the City Commission, the City Manager, nor the City Attorney have the legal authority to countermand the determinations of these semi-autonomous personnel. This has been the official opinion of the City Attorney's Office since at least 1993. See City Attorney Opinion dated December 6, 1993, attached as Exhibit A. We discuss the authority of each of these individuals and entities immediately below. We ore committed lo providing excel/en/ public service and safely lo off who live, work, and ploy in our vibronl, lropicol, hisloric communily. Letter to Commission -Apartment Hotels September 14, 2021 Page3 2. The Building Official is the Only Official who may Administer Building Regulations. The Building Official is the only city official empowered to administer and execute building regulations under the Florida Building Code, which has been expressly adopted as the building code of the City in City Code Section 14-401. More specifically, pursuant to Section 468.604(1) of the Florida Statutes: It is the responsibility of the Building Official to administer, supervise, direct, enforce, or perform the permitting and inspection of construction, alteration, repair, remodeling, or demolition of structures and the installation of building systems within the boundaries of their governmental jurisdiction, when permitting is required, to ensure compliance with the Florida Building Code. The Building Official shall faithfully perform these responsibilities without interference from any person. (Emphasis added). As a general matter, the Building Official's interpretation and enforcement of the Florida Building Code, as it is relevant here, is subject to review by the Board of Rules and Appeals. See Miami-Dade County Code Section 8-4(a). 3. The Planning Director is the Only Official who may Administer the Land Development Regulations. Similarly, pursuant to Article I, Section 2 of the City's Related Special Acts and Chapter 114 of the City's LDRs, the Planning Director is the only city official empowered to administer and interpret zoning regulations. Generally, the Planning Director's interpretation of the City's LDRs may only be reviewed by the City's Board of Adjustment. These officials' regulatory decisions are of a semi-autonomous nature inasmuch as the exclusive right of review is pursuant to appeal to administrative boards and, if needed, subsequent court review. 4. The City Commission Does Not Have Authority to Direct the Outcome of Decisions by the Building Official or the Planning Director. Under the City Charter, the powers of the City Commission are enumerated in §2.03, the powers of the Mayor are enumerated in §2.06, and the powers of the City Manager are enumerated in §4.02. Neither the City Charter nor the City Code grant express power to the Mayor, City Commission or the City Manager to direct the outcome of administrative determinations made by the City's regulatory officials, namely the Building Official, the Planning Director (and, not relevant here, the Fire Chief). Rather, the review of such decisions by regulatory officials acting in their regulatory capacities is subject to administrative remedies and/or an appellate review process . We are committed lo providing excel/en/ public service and safety lo all who live, work, and ploy in our vibrant, tropical, historic community. Letter to Commission -Apartment Hotels September 14, 2021 Page4 Neither the City Code nor Charter recognize any procedure for the City Commission, or any City official, to reverse a regulatory approval of the Building Official or Planning Director. Inasmuch as neither the City Charter nor City Code expressly grants the City Commission or City Manager the power to review such regulatory decisions, and in view of the clear limitations on review of these decisions, review by the applicable administrative bodies (and subsequent rights of judicial review in the courts) is the exclusive procedure for review of these determinations. For all these reasons, under Florida, County, and City law, neither the Mayor, City Commission nor City Manager (nor, for that matter, the City Attorney) have the authority to direct the determination of administrative interpretations or decisions of a regulatory or semi-autonomous nature made by either the Building Official or the Planning Director in the performance of their duties. Notwithstanding the foregoing, as set forth more fully below in Section E, the City Commission, in its legislative capacity, may consider a wide variety of measures to prospectively address the concerns relating to the foregoing issues, including, but not limited to, the quality-of-life concerns expressed by many residents. D. The Building Permits for the subject properties As set forth above, the Building Official is charged with enforcement of the Florida Building Code and Florida Statutes, Chapter 553. The process for obtaining (and revoking) a building permit begins and ends with the Building Department (subject to the administrative or judicial review noted above). As part of the process, review and approval by the City's Planning Department is required, and that review and approval was performed here. Once a building permit is issued, the property owner who has relied upon an issued permit is entitled to rely on the City's regulatory approval. Sako/sky v. City of Coral Gables, 151 So.2d 433 (1963) (municipality was precluded under doctrine of equitable estoppel from rescinding permit, even though holder might have had reason to believe that municipality's official mind might be changed by municipal election and political controversy regarding high rise zoning, where holder materially changed his position and incurred substantial expense in reliance on permit which had been intentionally and lawfully issued by proper municipal officers). The Building Official's ability to lawfully revoke an issued building permit is extremely limited, as set forth in Section 105.6 of the Florida Building Code, which provides as follows: We ore commilled lo providing excel/en/ public service and safety lo all who live, work, and ploy in our vibrant, /ropicol, historic community. Letter to Commission -Apartment Hotels September 14, 2021 Page 5 105.6 Denial or revocation. Whenever a permit required under this section is denied or revoked because the plan, or the construction, erection, alteration, modification, repair, or demolition of a building, is found by the local enforcing agency to be not in compliance with the Florida Building Code, the local enforcing agency shall identify the specific plan or project features that do not comply with the applicable codes, identify the specific code chapters and sections upon which the finding is based, and provide this information to the permit applicant. If the local building code administrator or inspector finds that the plans are not in compliance with the Florida Building Code, the local building code administrator or inspector shall identify the specific plan features that do not comply with the applicable codes, identify the specific code chapters and sections upon which the finding is based, and provide this information to the local enforcing agency. (Emphasis added). The specific questions raised by members of the public and commissioners, and our analysis of the underlying issues, is set forth below. 1. Questions Relating to the Property Value and Permit Job Value Some residents and commissioners have raised questions regarding the City's method of calculating value for purposes of applying "the FEMA 50% rule." The so called "FEMA 50% Rule" is required by the NFIP (National Flood Insurance Program), FEMA's flood insurance program, which provides affordable flood insurance to property owners . For instance, if a community needs federally backed flood insurance to be made available to its citizens, then they must adopt and enforce the rules as required by the NFIP . The City of Miami Beach has adopted the NFIP rules, including the FEMA 50% rule, in City Code Sections 54-37("Basis for establishing the areas of special flood hazard") and 54 - 48(1 )(a)("Specific Standards [for Residential Construction)") The FEMA 50% rule applies to any home or building where the lowest floor is below the 100-year flood elevation. In residential properties, only parking, building access and limited, incidental storage are allowed below the flood level. If an improvement to an existing structure costs more than 50% of the original structure's current value ("substantial improvement"), it must be brought into compliance with the flood damage prevention regulations, in order to be insured. This includes elevating the building to, or above, the 100-year flood elevation. The building department, for purposes of analyzing the FEMA 50% rule when reviewing We are commilled lo providing excel/en/ public service and safety lo all who live , work, and play in our vibronl, lropical, historic community. Letter to Commission -Apartment Hotels September 14, 2021 Page 6 a building permit application, relies on the FEMA "Actual Cash Value" (ACV) formula, which is the cost to replace a building on the same parcel with a new building of like-kind and quality, minus depreciation due to age, use, and neglect. The Building Department has routinely relied on certified independent third-party appraisals and cannot impose a different standard for review of valuation after a permit has already been issued. Indeed, the property owner is allowed by City Code to decide whether to use the county tax value or the appraised value. See City Code Section 54-35 (Definition of market value). However, due to the age of older buildings and the depreciation used by the county, as well as the higher land values of older buildings, in some cases the county assessed value is quite low and using the county figure would cause the 50% rule to come into play with even minor repairs and property improvements such as installing impact windows or a new roof. For that reason, the ACV formula has traditionally been employed by the Building Department. The building department is audited by CRS every 3 years as well as FEMA or State Flood Plane Management Office every 5 years. These audits include a review of construction documents, which includes the appraisal values. Applying the ACV formula, the construction cost ratios are as follows for the permits at issue: Property Address Permit# Building Market Construction Construction Value Cost Cost Ratio 310 Meridian Ave BC1704920 $1,460,000.00 $710,000.00 48.63% 226 Jefferson Ave BC1910387 $218,972.00 $81,500.00 37% 333, 337, 343, 345 Jefferson Ave. This property has 4 detached structures. 333 Jefferson Ave 337 Jefferson Ave 343 Jefferson Ave 345 Jefferson Ave BC1704595 BC1704595 BC1704595 BC1704595 $702,831.00 $513,893.00 $539,053.00 $560,560.00 $173,484.00 $173,484.00 $128,020.00 $173,484.00 25% 34% 24% 31% Should the City Commission desire to enact Planning and Zoning related legislation with additional requirements for review of property values, it may certainly do so. We ore commitled to providing excellent public service and safety to all who live, work, and ploy in our vibrant, tropical, historic community. Letter to Commission -Apartment Hotels September 14, 2021 Page 7 2. Questions Relating to Whether the Plans For Each Property Included a Ground Floor Lobby Additionally, there have been questions and concerns about whether a lobby is required in each Project. Staff reviewed each Project and has determined that all units are accessed through a lobby which is consistent with the requirements in the LDRs. The permitted lobby plans for each of the subject properties are as follows, and highlighted below: 310 Meridian Avenue -lobby floor plan ') L O T 8 BLO C K 78 PROPOSED OVERALL GROU ND FLOOR Pl.AN ---~ -!:o.: ... 1, ... ,ir 226 Jefferson Avenue -lobby floor plan IRON t-'IPE 140 . oo · P "w_, .. _._ . ·;-,.,•::_"====;;;=:::;;;;==:;:====:;;;=;~;======14=0:::;;;· 2;;;;6=::;;• ;;:;;M;;;:========;,;;;;:;;;;:;;~+-----~--..,:I / r~ o.,,t ' ~ • '--~'t '11 O·tt-- ;f 0 0 Q, •• f"' 0 ~ . lO .,;, , .,, . ,_, ,' ., FOUND½" IRON PIPE !ii L.P. We are commilled to providing excellent public service and safety to all who live , work , and play in our vibrant, tropicol , historic community . Letter to Commission -Apartment Hotels September 14, 2021 Page 8 333 Jefferson Avenue -lobby floor plan UNIT 110 Dffln' LMNC /OCNINC "°"" UNIT 10& I..MNO/DININC "°"" l!Dfll....lllll ® ,_ ., ---• ---[MM -__, - ©•_, _______ .,... __ __ SWIOC>I ENTRY + Ut«J 109 LMNG/01~ ROOM u..-r 111 l.MNO/DINHC ROOM BEDROOl,I I I I I I I I I I I I I I I I I I I I I ,.,,,,,. <ffrlMMC:c ,- _______ _j ENTRY ----~~ CONC, WJL.K We ore commifled to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. 07. A B C D E Letter to Commission -Apartment Hotels September 14, 2021 Page 9 Based on the foregoing, and given the very exacting standard for revocation of a building permit under the law, the City Attorney's opinion is that the Building Official is acting well within the scope of her regulatory authority in concluding that the circumstances relating to 310 Meridian, 226 Jefferson Avenue, or 333 Jefferson Avenue do not warrant the revocation of the issued permits, or the issuance of a stop work order, based on the specific matters outlined above. However, these active construction sites are being monitored by the Building Department to ensure that the work being performed does not exceed the scope of the approved permits. 3. Questions Concerning Certificate of Appropriateness Review and Approval. As part of the Planning Department's review of building permit applications, the approval of a Certificate of Appropriateness is required in connection with any modification to a building or structure (the "Project") that is located in a designated historic district. Depending on the scope of work proposed, a Certificate of Appropriateness 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. Interior non-public spaces are not within the HPB's jurisdiction. If HPB review is required, then a full set of schematic design plans is presented to the HPB and the resulting approval serves as the Certificate of Appropriateness for the Project. If the Project involves work that, pursuant to the requirements in section 118-563(d) of the City Code, can be approved administratively, for a staff-level Certificate of Appropriateness, the approved building permit, which was reviewed and signed off by the Planning Department, serves as the Certificate of Appropriateness. The Planning Department's sign-off is the final confirmation that an application satisfies the Certificate of Appropriateness criteria in section 118-564 of the City Code, and all other requirements of the City's Land Development Regulations. Members of the public have asked whether, for staff-level Certificates of Appropriateness, a separate application form is required. The City's longstanding practice has been to streamline applications for building permits and staff-level Certificates of Appropriateness by permitting applicants to: (i) submit one application that satisfies both the Building and Planning Departments' requirements, with that application including all of the information required for the certificate of appropriateness criteria to be reviewed by Planning Staff; and (ii) obtain one approval-a building permit-which evidences approval by the Building Department, Planning Department (including, if applicable, a staff- level Certificate of Appropriateness), and any other department whose review of a particular application may be required. We are commilled lo providing excellent public service and safety la all who live, work, and play in our vibrant, tropical, historic community. Letter to Commission -Apartment Hotels September 14, 2021 Page 10 Importantly, based on the application process the City has in place, a substantive certificate of appropriateness review is conducted with every application, and was in fact conducted with respect to the three subject properties, as the underlying information is contained in the applicant's plans. E. Legislative Options for the City Commission's Consideration at its September 17, 2021 Meeting. In light of the Planning Board's transmittal to the City Commission of the Ordinance prohibiting apartment hotels in the R-PS1 and R-PS2 districts, Zoning in Progress is in effect and no new application for any apartment hotel in these districts may be accepted. First Reading by the City Commission is scheduled for September 17, 2021. If the Ordinance is adopted following two readings by the City Commission, apartment hotels will be prohibited in R-PS1 and R-PS2, and any existing apartment hotels that were legally established would be deemed "legal non-conforming." In addition, a discussion item has been placed on the September 17, 2021 City Commission meeting agenda regarding strategies for addressing quality-of-life issues with existing and potential future apartment hotels in the RPS-1 and RPS-2 districts: • Exploring modest and context sensitive incentives to encourage the re-conversion of buildings to residential apartment uses, such as height or other incentives. • Developing a comprehensive strategy to address negative behaviors in the R-PS1 and R-PS2 districts. Police, Code and Parking would need to participate in this discussion. • Implementing a strategy to address cut-thru traffic, speeding and reckless driving. This would include a combination of traffic calming measures, as well as enforcement. Once the Inspector General has concluded his independent review, the City Commission may also want to discuss any recommendations the Inspector General may provide, as it considers how to build on the City's current building permit review process prospectively. If there are any additional questions or new issues raised, both the Administration and City Attorney's Office are committed to reviewing any such questions objectively, in an effort to provide the City Commission with our collective recommendations and best advice. RAP/SHR/NK/ag We ore commilled to providing excellent public service and safety lo all who live, work, and ploy in our vibrant, lropicol, historic community. TO: FROM: ~ITY OF MIAMI BEACH LAURENCE FEINGOLD CITY ATTORNEY JEAN OLIN FIRST ASSISTANT CITY ATTORNEY EXHIBIT A SUBJECT: REVIEW OP' SEMI-AUTONOMOUS DECISIONS MADE BY CITY EMPLOYEES DATE: DECEMBER 6, 1993 Pursuant to Mayor Gelber's request, I have researched the issue of whether in Miami Beach's form of government it is appropriate for determinations of a semi-autonomous nature made by certain City employees to be subject to direction of the City Administration and/or elected officials. As is explained more fully below, such direction is outside the powers of the City Manager and/or elected officials. The power of review over decisions made by certain City employees is established in the City Charter and Code. The constitutional doctrine of separation of powers into the legislative, executive and judicial branches of government concerns the administration of certain laws by municipal corporations, except as qualified or limited by particular provisions of applicable laws including the Charter and Code. Therefore, the Commission and City Manager may perform and are required to perform those duties as are prescribed in the City's laws or as made applicable by legislative act or which may be implied, or which are indispensable to enable the municipal corporation to perform the purposes of its creation. Mcouillin's on Munici~al Law, §12.126. Under the Miami Beach City Charter, the City Commission's powers are as follows: All powers of the City shall be vested in the City Commission except those powers specifically given to the Mayor, the City Manager, and to the City Attorney, as provided in this Charter and except those powers specifically reserved in this Charter to the electors of the City. Moreover, the City Commission shall have all powers and privileges not inconsistent herewith, granted to the City Commission of cities and towns by the general laws of the State of Florida, and LAURENCE FEINGOLD CITY ATTORNEY PAGE 2 DECEMBER 6, 1993 shall have power to do and perform all things necessary for the government of the City not inconsistent with the Constitution of the State of Florida, the Constitution and laws of the United States, and the terms and provisions of this Charter. Miami Beach City Charter, §2.03, "Powers of the City Commission." The Mayor shall be the presiding officer at the meetings of the Commission and shall bear the title of Mayor and shall have a voice and a vote in the proceedings of the City Commission but no veto power, and he/she may use the title of Mayor in any case in which the execution of legal instruments in writing or other necessity arising from the general laws of the state so requires; he/she shall sign all deeds, contracts, bonds or other instruments of writing to the which the City is a party when authorized to do so by ordinance or resolution of the City Commission, but he/she shall not have the administrative or judicial functions and powers of the Mayor under the general laws of the state. Miami Beach City Charter, §2.06, "Duties of Elected Mayor." The City Charter also provides that the City Manager ... shall be the chief executive officer and head of the administrative branch of the city government. Except as specifically provided otherwise in this Charter, the City Manager shall be responsible to the City Commission for the proper administration of all affairs of the City. The functions and powers of this office shall be: (a) To see that the laws and ordinances are enforced. * * * (h) To have general and special supervision and control, subject to the control by 2 LAURENCE FEINGOLD CITY ATTORNEY PAGE 3 DECEMBER 6, 1993 the City Commission, of the several departments now existing, except for the Legal Department, or hereafter to be created, and the City Manager shall be purchasing agent of the City, with authority to delegate such duty. * * * (j) The City Manager shall account to the City Commission for the conduct and acts of the several departments now existing, or hereafter to be created, and he/she shall have supervision and control of the heads of the said departments, and such heads as appointed by the City Manager shall be accountable to the City Manager for the conduct and acts of their departments, except for the Legal Department. * * * Miami Beach City Charter, §4. 02, Powers. " Moreover, Miami Beach Manager] -To Have Wide Latitude Units and Administrative Officers" "City Manager -Functions and City Code Section 2-4 "[City in Relation to Organizational provides: The City Manager shall have, within the limitations of the Charter of the City and the implications of the division or office titles, wide latitude in prescribing the functions of the various organizational units of the City's service and the duties of the administrative officers of the City. Neither the City Charter nor the City Code grant express power to the City Commission or the City Manager to direct the outcome of administrative determinations made by City employees of a semi- autonomous nature but rather assign this power of review to an appellate process. Clearly, semi-autonomous powers may be delegated to administrative officials. State y, Jacksonville. 133 So. 117 (Fla. 1931). An ordinance that delegates a part of the police power to 3 LAURENCE FEINGOLD CITY ATTORNEY PAGE 4 DECEMBER 6, 1993 an official may be valid, even though it confers upon the official a certain discretion in the exercise of that power, provided the administrative discretion is sufficiently limited by rules and standards. See, city of Miami v. Saye Brickell Avenue, Inc, 426 So.2d 1100 (Fla. 3d DCA 1983). Accordingly, certain administrative officers of the City of Miami Beach have, by the implications of their office titles, semi-autonomous power to make specific decisions which are not subject to interference by the City Manager or the City Commission.1 The Planning/Development, Design and Historic Preservation Director as well as the Building Director are empowered to administer and execute zoning and building regulations and ordinances, both being governed by the provisions of applicable laws and regulations and the issuance and review of relevant matters. In these instances, such officials are making administrative decisions which are of a semi-autonomous nature inasmuch as they offer a right for review via administrative boards and, if needed, subsequent court review.2 It should be noted that in Jennin~e y Dade county, 589 so.2d 1337 (~la. 3d DCA 1991) ~ ~ 598 So.2d 75 (Fla. 1992), it was held that ex parte communications are inherently improper to quasi-judicial proceedings and that quasi-judicial officers should avoid all such contacts where they are identifiable . Adherence to procedures which ensure fairness "is essential not only to the legal validity of the administrative regulation, but also to the maintenance of public confidence in the value and soundness o: this important governmental process. See, 2 Am, Jur, 2d "Administrative Law" §351. 2Planning and Zoning Director: Miami Beach City Code, §16-7(AJ (1): The Board of Adjustment shall have the following powers and duties: To hear and decide appeals when it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this ordinance with the except:ion of appeals pursuant to §17-4 (GJ and §18-2 (I) (l). In the event of an administrative appeal :o the Board of Adjuatm~nt, the Planning and Zoning Director 111c.y engage the services of an attorney for the purposes of representing the administrative officer that m~de the decision that is the subject of the appeal .... Miami Beach City Code, §16-9, "Appeal of Board• s Decision": The decision of the Board of Adjustment shall be final 4 LAURENCE FEINGOLD CITY ATTORNEY PAGE 5 DECEMBER 6, 1993 In a number of administrative appeals such as zoning and building there is often a hierarchy of authorities so that a review of action by an administrative official may be had within the system itself by a higher or superior agency. Within the City of Miami Beach, the Director of Planning/Development, Design and Historic Preservation and the Building Director, are authorized to make decisions with regard to interpretations of the City's Zoning and there shall be r.o further review thereof except by resort to a court of competent jurisdiction by a petition for writ of certiorari . Building Official: South Florida Building Code, §201. l "Powers , Duties and Appointment of Building Official ": (bl Powers and Duties. The Building Official ~s hereby authorized and directed to interpret and enforce all of the building provisions of this Code subject to the powers vested in the Board of Rules and Appeals as set forth in §203. • • • South Florida Building Code, §202.13(d) "Unsafe Structures Board": (d) Duties and Powers of the Board. The Board shall have the following duties, functions, powers and responsibilities: (1) Hear and determine appeals from actions and decisions of the Building Official pursuant to the provisions hereof. • • • South Florida Building Code §203. 4 "Duties of Board of Rules and Appeals". (al Appeal from decision of Building Official: The Board shall hear all appeals from the decisions of the Building official wherein such decisions are on matters regulated by this Code from any person agreed thereby .... South Florida Building Code §203.7 "Court Review": Any person aggrieved by a decision of the Board of Rules and Appeals, may apply to the appropriate court to correct errors of law of such decisions .... 5 LAURENCE FEINGOLD CITY ATTORNEY PAGE 6 DECEMBER 6, 1993 Ordinance and South Florida Building Code --pursuant to the Zoning Code and South Florida Building Code, review of these decisions may be appealed to the City's Board of Adjustment and Unsafe Structures Board or Board of Rules and Appeals, respectively. Absent Charter or Code provisions to the contrary, the higher administrative authorities are therefore solely empowered to review decisions of these officials . See, Fla. Jur, 2d, "Building, Zoning and Land Control" (1st ed. Zoning Laws, §29). Laws designating both the City of Miami Beach Planning Director and Building Official with powers to make administrative decisions of this nature are consistent with the City's Charter and Code .3 Inasmuch as neither the Charter or Code expressly grant the City Manager or the City Commission the power of review over such decisions, and in view of the clear limitations upon review of these administrative decisions as set forth within the City's Zoning Ordinance and South Florida Building Code, independent determinations by the Planning/Development, Design and Historic Preservation Director and the Building Director, limited only by review thereof to the applicable administrative bodies (and subsequent rights of judicial review to the courts) is the proper procedure for review of decisions made by these employees.4 CONCLUSION Neither the City Charter or Code grant the City Manager or City Commission power to direct the determination of administrative decisions of a semi-autonomous nature made by certain City employees within the City of Miami Beach. Limited review of such decisions must be directed to the administrative bodies specified by law, with subsequent appeal to the courts. Notwithstanding anything set forth herein, it is clear that the City Manager is empowered to review the performance of various departments of City government; in performing this 3Regulations may, within appropriate limitations, authorize administrative officers to perform functions that are that are designed to effectuate a valid legislative purpose, when the adninistrative function so authorized are consistent with organic law. Florida Motorlines, Inc, y, Railroad Commissioners. 129 So. 876 (Fla. 1930). 4 In 1990, the Miami Beach City Commission recognized the independence of decisions made by the City's Building Official when it refused then-Commissioner Abe Hirechfeld 1 s request to second guess and rescind that Official's decisions . 6 LAURENCE FEINGOLD CITY ATTORNEY PAGE 7 DECEMBER 6, 1993 functior., the City Manager may make reasonable review and inquiry so long as such actions do not interfere with or inhibit the autonomy of certain officials as heretofore set forth under our Charter or Code. Similarly speaking, the City Commission may make whatever reviews or inquiries they deem appropriate as long as such reasonable inquiries do not violate the City Manager form of government. JO/ks ia, jomisc2\cmreview .mcmJ 7 • CITY QP MIAMI BEACK TO: FROM: MAYOR SEYMOUR GEL~E LAURENCE FEINGOL ~ CITY ATTORNEY &OBJECT: SUPPLEMENTAL MEMORANDOM -CMB SBMI-AO'l'ONOMOUS PBRSONWEL DATE: JANUARY 10, 1994 You have asked to be su~plied with the titles of any other City directors or departments that are subject to review by administrative boards and the courts but not by the City Manager or the City Commission --in this regard, please note the following: fire Chief The City of Miami e eadhira Chief and his inspectors, when making determinations regarding requirements of the South Florida Fire Prevention Code ("SFFPC") and in interpreting other codes or regulations which regulate fire prevention and fire safety, are acting in a semi-autonomous capacity since said decisions are reviewed exclusively by the Dade County Fire Prevention and Safety Appeals e oard. The South Florida Fire Prevention Code provides for exclusive jurisdiction within the Dade County Fire Prevention and Safety Appeals e oaraf all appeals concerning actions or decisions of any fire official of any jurisdiction in Dade County, Florida, with respect to the South Florida Fire Prevention Code or any municipal ordinance, code or regulation which regulates fire prevention or safety, and grants the e oamhe power and authority to affirm, modify, or reverse the action or decision which was appealed. SFFPC Section 14-46(0) (1). Exclusive jurisdiction in the Dade county Fire Prevention and Safety Appeals e oards also granted with regard to appeals governing numerous other determinations made by the Chief Fire 1Hy Oecuiber 6, 1993 memo to you explained the aami-autonomoua nature ot the City• II Planning/Developiient, De ■ign and Historic Preservation Dinctor and the City's Building Director. MAYOR SEYMOUR GELBER P~GE 2 ~ JANUARY 10, 1994 Official or his designee of any jurisdiction in Dade County, Florida. l5l. at Subsection (3) and (6). The exclusivity of this review process is specifically stated within Subsection 13 of Section 14- 47 of . the South Florida Fire Prevention Code: [N]otwithstanding any provision of the Code of Metropolitan Dade County, Florida, the South Florida Fire Prevention Code, any municipal ordinance or any other county ordinance except as provided in Subsection l herein, no other county or municipal officer, agent, employee or board shall exercise any of the powers granted to the Dade County Fire Prevention and Safety Appeals Board by this Article, the South Florida Fire Prevention Code, or by state law, rule, or regulation, as all of same may be amended from time to time. Police.~.! Sections 25-37.l through 25-37.8 of the Miami Beach City Code designate the City's Chief of Police as the City Official in power to declare that a state of emergency exists within the boundaries of the municipality and may exercise emergency powers set forth within said Code Sections. The only City Commission review authorized by the Code involves instances in which the Commission has terminated a state of emergency prior to the expiration of 72 hours, and/or the Commission's concurrence of the Police Chief's request to extend a state of emergency. The Police Chief• s powers in state of emergency are thus the only Code- sanctioned instance in which the Chief's powers are semi-autonomous in nature. CONCLUSION Accordingly, the following city officers shall be regarded as having powers semi-autonomous in nature: Planning/Development, Design and Historic Preservation Director (in actions interpreting the City of Miami Beach Zoning Ordinance) Building Official (in actions interpreting the South Florida Building Code) Fire Chief (in actions interpreting the fire MAYOR SEYMOUR GELBER ~AGE J .. ·JANUARY 10, 1994 · codes); and Police Chief (limited to State of Emergency) cc: Roger M. Carlton City Manager 1'1JO/IC.a (a1joa1.ec2\e91-10.Na)