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
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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.
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(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
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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
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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.
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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
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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:
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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.
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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
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Legislative Tracking
Planning
Sponsor
Mayor Dan Gelber
ATTACHMENTS:
Description
❑ Ordinance
Page 585 of 1502