LTC 093-2022 Deauville Recent Developments1
OFFICE OF THE CITY MANAGER
NO. LTC # LETTER TO COMMISSION
TO: Honorable Mayor Dan Gelber and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
Alina T. Hudak, City Manager
DATE: March 10, 2022
SUBJECT: Deauville Beach Resort, 6701 Collins Avenue – Recent Developments
The purpose of this Letter to Commission is to provide additional information regarding
the property containing the former Deauville Beach Resort (“Deauville”) as a follow up to
the Letters to Commission (LTC) issued on January 7th, 10th, and 19th 2022.
This update includes information regarding the City’s efforts to address the comments on
the Deauville from the Historic Preservation Board (HPB), information regarding the March
4, 2022 hearing before Judge Michael Hanzman on the City’s motion to compel the
Deauville’s compliance with the City Code, and the subsequent approval of the Deauville’s
building permit application for total demolition,.
BACKGROUND
The Deauville is a contributing building within the North Beach Local Historic District. It
has been closed since July 25th of 2017, when there was a fire in the Deauville’s electrical
room. Damage to the building structure before and after the closure of the hotel has been
of grave concern to the Mayor and City Commission, as well as the Administration. This
concern predated the collapse of the Champlain Tower South, and the concern has been
intensified since that time.
In order to attempt to protect this historic structure from demolition by neglect, the City
Commission authorized the filing of a lawsuit against the property owner. The lawsuit
sought, among other remedies, to compel the owner to comply with the City Code,
including the filing of all applications required for a regulatory review of permit applications,
in accordance with the City Code. After years of enforcement action and litigation, on
December 15, 2021, the owner finally submitted a demolition application and a Structural
Condition Assessment Report regarding the building’s condition that had been previously
ordered by the judge hearing the case, Judge Michael Hanzman. Unfortunately, that 124-
page structural report submitted by the Deauville’s structural engineer, Heather Anesta,
PE, of Anesta Consulting, Inc., made clear that the building is unsafe and cannot be saved
due to structural defects.
The City then performed a careful review of the Anesta report. The Building Official verified
Ms. Anesta’s reputation and credentials and followed up with her to clarify her report. The
Building Official also assembled a team of experts to perform a site inspection of the
Deauville property in order to verify the information provided by Ms. Anesta. The site team
from the City included the Building Official, who is a structural engineer by trade, a
structural engineer/threshold inspector, a consultant structural engineer, a registered
architect with historic preservation experience, the Chief Building Inspector, and several
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members of the Miami Beach Fire Department to ensure the safety of the group and to
help document the inspection. The combined team had over 120 years of construction
experience in South Florida.
After the site team inspection confirmed the accuracy of the information contained in the
Anesta report, the City of Miami Beach Building Official issued a demolition order on
January 19, 2022. declaring the Deauville an unsafe structure pursuant to [EB]FBC-406,
Miami-Dade County Chapter 8, and City of Miami Beach Code section14-500.
Following the issuance of the demolition order, the HPB requested, pursuant to its
authority set forth in Sec. 118-562(b)(8) of the City Code, an inspection by an independent
structural engineer with experience in historic preservation. The City Commission
endorsed this request, and directed the City Attorney’s Office to request permission from
the property owners or ultimately, Judge Hanzman, to access the property to conduct the
independent inspection. The property owner denied the request, and the City
subsequently filed its Motion to Compel, discussed more fully below.
Also, as part of the demolition application process, the property owner was required to
submit an application for an after-the-fact certificate of appropriateness within 15 days of
the issuance of the demolition order, setting forth its intentions regarding the property after
the requested demolition. The property owner failed to file this required application.
RECENT DEVELOPMENTS
I. THE CITY’S MOTION TO COMPEL COMPLIANCE WITH THE CITY CODE
Based upon the property owner’s continued failure to meet its obligations, including, inter
alia, its refusal to allow access to the property for the requested independent inspection
by a structural engineer with experience in historic preservation, and its failure to file the
required application for an after-the-fact certificate of appropriateness, the City filed its
Motion to Compel Compliance with City Code on February 15, 2022. The motion is
attached as Exhibit A. The property owner filed a cross-motion to sanction the City for
delaying the issuance of the requested demolition permit.
On March 4, 2022, Judge Hanzman held a hearing on the City’s motion and the property
owner’s motion. At that hearing, the City’s position was zealously argued by counsel.
However, Judge Hanzman flatly declined to order the additional inspection and declined
to require the property owner to file the application for an after-the-fact certificate of
appropriateness as a prerequisite to the issuance of the demolition permit.
Judge Hanzman also denied the property owner’s motion to impose sanctions against the
City, without prejudice, dependent upon the City expeditiously processing the demotion
permit. However, the judge made clear that he would consider issuing sanctions for further
delay, including, possibly, holding Mayor Gelber and individual commissioners in contempt
of court. See Hearing Transcript, attached as Exhibit B, at p.17. As an example of the
court’s many similar statements at the hearing, he stated:
[T]he City of Miami Beach is trying this Court's patience, and I'm not really
interested in having another Surfside case because the Beatles played the
Deauville in 1964. Now, I ordered very clearly that there be a demolition
permit applied for, that the City process it in the ordinary course, and the
building inspector apparently went out there and concurred with the
Deauville structural engineer that this is a dangerous structure that needs
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to be demolished. Now, I don't know what the commission's doing here, but
you'd better explain to me why I'm still hearing this issue over and over and
over again because, like I said, I am quickly losing patience with this
municipality.
See Hearing Transcript, p.4.
The court concluded as follows:
Well, there's not going to be any independent evaluation done pursuant to
an order of this Court. Your motion to compel the compliance with your
code and overrule the defendants' objection is denied. This Court is not
ordering any further inspection whatsoever, and it's not ordering this
defendant to do anything other than what it already has, which is submit a
full and complete demolition application.
Now, if the City elects to not issue a building permit, it will do so at its own
risk and peril, but I am not ordering any further inspection of the hotel.
Now, as far as the plaintiff's motion for sanctions, that is denied without
prejudice to renew in the event this matter goes further than it needs to go
in the future.
But today I am not awarding sanctions. I'm denying the sanction motion,
and I'm denying the City's motion to compel compliance with its code. If
you have some other avenue to seek -- compel compliance with your code,
have at it. But this Court is not entering any orders requiring any further
inspections. It is very apparent to this Court that both a qualified structural
engineer and the City's own building official have deemed this hotel unsafe,
and it needs to come down. Now, for some political reason that I am not
aware of and is beyond my pay grade, the City powers to be for some
reason are simply resisting ad nauseam the effort to demolish this hotel. I
don't know what their motivation is nor do I care, but this Court is not
entering any further orders to assist the City of Miami Beach in delaying
this process and leaving a clearly unsafe structure amenable to the public.
II. POST-HEARING DEMOLITION PERMIT PROCESSING
In accordance with the Court’s Orders, the application for a building permit for the
demolition of the Deauville structure has been processed, reviewed, and approved by all
required City departments pursuant to the demolition order issued by the Building Official.
The property owner complied with the final remaining requirement, payment of $93,777.49
permit fee, on March 9, 2022 at 4:37 PM. Based upon the completion of all required steps
by staff and by the property owner, the Building Official issued a final demolition permit
that same day. No further action by the City is necessary to allow the demolition of the
Deauville structure to proceed.1 The demolition will be carried out by implosion of the tower
structure and by conventional demolition of the remaining structure.
III. CONTINUING EFFORTS TO GAIN COMPLIANCE FROM THE PROPERTY
OWNERS
1 The property owner will need to perform asbestos remediation prior to demolition, but that process
is governed by the Miami-Dade County Division of Environmental Management (“DERM”).
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Notwithstanding the Court’s denial of access to the Deauville for an independent
inspection, based on the City Commission’s prior directives, the City has engaged an
independent structural engineer to, at a minimum, perform a review of the full record
available to the Building Official in connection with the application for demolition. This
review, however, must proceed separate and apart from the demolition process, in light of
the Court’s ruling. In addition, the City has pursued, to the best of its ability, the other
recommendations made by the HPB, and endorsed by the City Commission.
Specifically, a highly detailed 3D laser scan project including a digital model of the building
has been completed. Staff has been able to verify the accuracy of the data which fully
documents the exterior of the building and property. The City is continuing its efforts to
urge the property owners to preserve all architecturally and historically significant
elements of the building that can safely be removed and stored. The owner has agreed to
discuss the salvage of these elements after the issuance of a demolition permit.
Although the court did not require an application for an after-the-fact certificate of
appropriateness from the property owner as a condition of demolition, the application was
still required within 15 days of the original demolition order issued on January 19, 2022.
The City Code provides that the penalty for failing to submit the required application is up
to a $1,000 per day fine pursuant to a notice of violation issued by the Code Compliance
Department. Code Compliance is in the process of issuing that violation, and the fines will
accumulate daily, in addition to the $2.3 million in existing fines, until the property owners
come into compliance.
Finally, the Miami Design Preservation League (“MDPL”) filed a motion, on February 9,
2022, to intervene in the City’s lawsuit against the Deauville. That motion has not yet been
heard by Judge Hanzman.
MDPL also filed, on February 24, 2022, an appeal of the Building Official’s January 19,
2022 demolition order to the Miami-Dade County Regulatory and Economic Resources
Board Administration Section (“the County”). See Appeal, attached as Exhibit C. The
County has advised that it will determine what County body will hear the appeal: the Board
of Rules and Appeals (“BORA”) or the Unsafe Structure Board. Once the appropriate
board has been identified, a hearing will be scheduled. The County has advised that the
earliest hearing date before BORA would be April 21, 2022 and the earliest hearing date
before the Unsafe Structures Board would be April 20, 2022. If MDPL is successful in its
appeal, the demolition order (and subsequently issued permit) may be invalidated, or
either board could order other relief within its respective jurisdiction.
EC/AS/TM
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IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 19-003653 CA 43
THE CITY OF MIAMI BEACH, FLORIDA,
a Florida municipality,
Plaintiff,
vs.
DEAUVILLE ASSOCIATES, LLC,
a Florida limited liability company, et al.,
Defendants.
_________________________________________/
PLAINTIFF’S CONSOLIDATED MOTION TO COMPEL COMPLIANCE WITH CITY
CODE, MOTION TO OVERRULE DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S
REQUESTS FOR INSPECTION, AND RESPONSE TO DEFENDANTS’ MOTION FOR
SANCTIONS AND SUPPLEMENT TO MOTION FOR SANCTIONS
Plaintiff, City of Miami Beach (“the City”), hereby files this consolidated (1) Motion to
Compel Compliance with the City Code, (2) Motion to Overrule Defendants’ Objections to
Plaintiff’s Requests for Inspection, and (3) Response to Defendants’ Motion for Sanctions and
Supplement to Motion for Sanctions.
INTRODUCTION
Defendants filed application materials on December 15, 2021 for the total demolition of
the Deauville Beach Resort (“the Deauville”) — seemingly to comply with this Court’s October
5th order — but there were obvious and material defects in the application, including the fact that
the applicant was not even the property owner. Plaintiff provided written notice of the missing
materials to Defendants on January 28, 2022. Defendants amended their application and provided
additional materials to the City on February 3 and 4, 2022, months after the fact. The City is
Filing # 143992966 E-Filed 02/15/2022 08:44:05 PM
Exhibit A
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currently processing those supplemental materials.
In conjunction with the processing of the demolition application in the ordinary course, the
City requested access to the building for evaluation by a licensed independent structural engineer
with experience in historic structures. See January 26, 2022 Letter, attached as Exhibit A.
Defendants denied that request for access. See February 7, 2022 Letter, attached as Exhibit B. The
City also notified the applicant that, pursuant to Section 118-503(b)(1), an “after-the-fact"
application for a certificate of appropriateness for demolition to the Historic Preservation Board
(“HPB”) was due on or before February 3, 2022. See February 9, 2022 Letter, attached as Exhibit
C. This was not a conjured-up request. This is a requirement. Section 118-503(b)(1). Defendants
have not submitted the application for a certificate of appropriateness as required. Instead,
Defendants have filed a Motion for Sanctions, claiming that the City is “veering from its normal
process.”
The City is processing the application for total demolition of the Deauville in the normal
course. That process entitles the City to (a) retain a licensed structural engineer with expertise in
historic structures to perform an independent evaluation; and (b) require the applicant to file an
after-the-fact application for a certificate of appropriateness of demolition of a historic structure
within 15 days of the order of the building official. Therefore, the City requests that this Court
compel Defendants to comply with the City Code so that the City may continue to process
Defendants’ demolition application. If the Defendants comply with the City Code, they may
ultimately receive what they claim to want; until then, they are accomplishing nothing but wasting
time — which may very well be their objective.
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MEMORANDUM OF LAW
I. The City is Entitled to an Evaluation by a Licensed Structural Engineer With
Experience in Historic Structures.
A. City Code Section 118-562(b)(8) Specifically Authorizes the Independent
Evaluation.
1. As part of the normal application process for demolition of a historic structure, pursuant to
City Code Section 118-562(b)(8),1 the City is entitled to retain a licensed independent
structural engineer with expertise in historic structures to perform an independent
evaluation of the structure proposed to be demolished.
2. The Deauville is not a normal structure; it is a contributing building within a historic
district, which has been a vital part of the fabric of Miami Beach culture and is a jewel of
Miami Beach architecture. Because of the historic significance of the Deauville,2 it is
1 Section 118-562(b)(8) is clear and unambiguous and provides as follows: “The historic preservation board, for
applications involving the full demolition of any contributing building, structure or site individually designated in
accordance with sections 118-591, 118-592 and 118-593, or located within an historic district, may request the city to
retain a licensed independent structural engineer, with expertise in historic structures, to perform an independent
evaluation of the structure proposed to be demolished. The city commission, in its sole discretion, may review the
request and appropriate funds to cover the costs associated with the retention of such engineer. The planning
department shall select the independent structural engineer from a qualified list it maintains. If it is determined by the
independent structural engineer that the building, structure or site can be retained, preserved or restored, and a
certificate of appropriateness is issued based upon such determination, then the property owner shall reimburse the
city for all costs it paid to such engineer, and the property may be liened to assure payment. If it is determined by the
independent structural engineer that the building, structure or site cannot be retained, preserved or restored, then the
city shall bear the responsibility of all costs incurred by such independent structural engineer.”
2 The Deauville was constructed in 1956 and designed by noted Miami Beach architect Melvin Grossman in the
Post War Modern (MiMo) style. The property is classified as a Contributing building within the North Beach Resort
Local Historic District.
One of the most noticeable features of the building is its dramatic porte-cochere, comprised of sweeping intersecting
parabolic curves, it creates a defining entry point for this once all-inclusive resort. Stepped horizontal planes rise from
the street to the 2nd floor lobby entrance along the building’s façade, providing shelter and a clear pedestrian procession
from Collins Avenue. This lobby entrance is one of the 3 (three) main differentiated architectural features of the
building.
The 2-story structure to the south of the property contains ground level retail spaces with an enormous two-story
height ballroom space above, made legendary by the 1960s appearance of the Beatles on the “Ed Sullivan Show”. An
elongated honeycomb pattern of ornamental hollow clay blocks forms a distinctive screening mechanism for the
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necessary for a structural engineer with expertise in historic structures to perform the
independent evaluation.
3. Since Defendants submitted an application for full demolition of a contributing structure,
the HPB, pursuant to City Code Section 118-562(b)(8), properly and within the normal
course, requested the City to retain a licensed independent structural engineer with
expertise in historic structures to perform an independent evaluation of the structure. The
City Commission has reviewed and approved the request.
4. In accordance with the request by the HPB, and approval by the City Commission, the City
sent a letter to Defendants requesting access for the City code-authorized evaluation on
January 26, 2022 (Ex. A). However, on February 7, 2022, Defendants responded and
denied access (Ex. B) — despite the specific statutory authorization for the City’s
independent evaluation in the ordinary course of the processing of Defendants’ application
for full demolition of the Deauville.
5. The City’s retention of a licensed structural engineer with experience in historic structures
is appropriate for reasons which include, but are not limited to, the following:
(i) when an application for full demolition of a contributing building is filed, City Code
Section 118-562(b)(8) specifically authorizes this request within the normal course
of review;
(ii) although the City’s Building Official is a licensed engineer, she does not have an
expertise in historic preservation;
(iii) Defendants’ engineer does not possess expertise in historic structures;
ballroom façade on Collins Avenue. The hotel portion of the project rises 15 stories at the north of the property with
continuous horizontal windows and projecting concrete eyebrows.
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(iv) the retention of a licensed structural engineer with experience in historic structures
provides the City with its own expert to independently evaluate the application;
(v) a report of an independent structural engineer with experience in historic structures
will provide evidence necessary for the HPB to perform its regulatory function
when evaluating the after-the-fact application for the certificate of appropriateness
of the structure to be erected to replace the demolished Deauville, should it occur;
(vi) the requested independent evaluation would preserve evidence that will forever be
spoliated if and when the Deauville is demolished, with absolutely no prejudice to
the Defendants if it is allowed; and
(vii) The use of an independent structural engineer with experience in historic structures
fulfills the City’s dual objectives of providing for building safety and protecting its
historic preservation interests.
6. Moreover, the City’s need to “dot the proverbial I’s” in this case is compounded by
Defendants’ years of neglect of its property, multiple violations of the City Code, and
refusal to comply with previous mandates from the Miami-Dade County Unsafe Structures
Board, together with Defendants’ public statements wishing for demolition of the historic
Deauville before a structural assessment report had even been commissioned.
7. The licensed structural engineer with experience in historic structures can perform
materials testing and confirm whether demolition is feasible while retaining, preserving, or
restoring certain portions of the building (or even specific elements within the building,
such as the iconic sign, ballroom chandeliers, etc.) — all of which are appropriate and
standard code-authorized considerations pursuant to the City Code. See Sec. 118-
562(b)(8).
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8. The City is processing the application for total demolition in the ordinary course, but
Defendants refuse to grant the City the access necessary to have a licensed structural
engineer with experience in historic structures “perform an independent evaluation of the
structure proposed to be demolished” as specifically authorized by Section 118-562(b)(8).
Therefore, the City respectfully requests that this Court order Defendants to comply with
the City Code and allow access to the Deauville so that the City may continue to process
Defendants’ application for total demolition.
B. Plaintiff is Entitled to Retain Experts to Support its Claims and Defenses in
this Case.
9. On January 19, 2022, Plaintiff filed a request in this case for permission to enter the
Deauville at a mutually agreeable date and time prior to February 18, 2022, and in any
event, prior to the removal of any historical and/or architectural features from the building,
for the following purposes:3
a. To measure, survey, take a laser 3D scan, photograph and otherwise
3 This inspection request for the purpose of documentation is further supported by City Code Section 118-503, which
imposes a presumption for construction of a structure that is the same in height, massing, Floor Area Ratio, and square
footage as the structure that is demolished prior to review and approval of a certificate of appropriateness by the
Historic Preservation Board. The Federal standards for reconstruction are summarized as:
1. Reconstruction will be used to depict vanished or non-surviving portions of a property when documentary
and physical evidence is available to permit accurate reconstruction with minimal conjecture, and such
reconstruction is essential to the public understanding of the property.
2. Reconstruction of a landscape, building, structure or object in its historic location will be preceded by a
thorough archeological investigation to identify and evaluate those features and artifacts that are essential to
an accurate reconstruction. If such resources must be disturbed, mitigation measures will be undertaken.
3. Reconstruction will include measures to preserve any remaining historic materials, features and spatial
relationships.
4. Reconstruction will be based on the accurate duplication of historic features and elements substantiated by
documentary or physical evidence rather than on conjectural designs or the availability of different features
from other historic properties. A reconstructed property will re-create the appearance of the non-surviving
historic property in materials, design, color and texture.
5. A reconstruction will be clearly identified as a contemporary re-creation.
6. Designs that were never executed historically will not be constructed.
See Standards for Reconstruction, Technical Preservation Services, National Park Service, U.S. Department of the
Interior, at https://www.nps.gov/tps/standards/four-treatments/treatment-reconstruction.htm.
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document the exterior of the Deauville Beach Resort.
b. To measure, survey, take a laser 3D scan, photograph and otherwise
document the second level of the 2-story South wing of building, including
the following:
i. Main Lobby accessed via the front entry terrace;
ii. Napoleon Ballroom adjacent to the south of the Main Lobby
including the pre-function space with folded accordion wall facing
east;
iii. Theater adjacent to the east of the Main Lobby; and
iv. Ballroom adjacent to the east of the Main Lobby.
10. In addition to the City’s January 26 letter request, on January 24, 2022, the City filed a
request in this case for permission to enter the Deauville at a mutually agreeable date and
time prior to February 18, 2022, and, in any event, prior to the removal of any historical
and/or architectural features and/or demolition of the building, for the following purposes:
To have a licensed independent structural engineer, with expertise in
historic structures, perform an independent evaluation of the Deauville
Beach Resort located at 6701 Collins Avenue in accordance with the
pending application for total demolition Application BC2116167.
11. Plaintiff’s January 19 and January 24 requests for inspection of the Deauville are
reasonably calculated to lead to the discovery of admissible evidence regarding the City’s
claims 4 as well as Defendants’ affirmative defenses 5 and counterclaims.6 It is telling that
Defendants have refused access for the code-authorized evaluation, but, instead, seek to
force issuance of a demolition permit through its thinly veiled “Motion for Sanctions.”
12. The City asserts, through this lawsuit, that Defendants have failed to comply with the
maintenance standards for historic structures in the City of Miami Beach, and that
4 Complaint ¶¶25, 26 34, 35, 58.
5 Defendants’ Eighth and Ninth Affirmative Defenses.
6 Counterclaim ¶12, 26, 33, 34.
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Defendants’ failure to perform the required repairs and remediation has resulted in the
deterioration of the historic Deauville resulting in demolition by neglect. See Fn. 4.
13. Defendants counter that the condition of the Deauville is due to circumstances beyond
Defendants’ control, that the City has failed to provide technical assistance in the
preservation of the historic structure, and that due to its deteriorated condition, the
Deauville has lost its status as a contributing structure and is not even subject to the City’s
historic preservation ordinance. See Fn. 5 and 6.
14. Defendants have retained a licensed structural engineer 7 and provided an Assessment of
Structural Conditions to the City. The City 8 is entitled to retain an independent expert for
the same purpose — to evaluate the structural condition of the Deauville prior to issuing a
permit for demolition and prior to destruction of all evidence in this case. It is an abuse of
discretion to limit rebuttal testimony material to a claim or defense. Gutierrez v. Vargas,
239 So. 3d 615 (Fla. 2018); Cardona v. State, 185 So. 3d 514 (Fla. 2016) (finding abuse of
discretion to exclude State’s rebuttal expert from penalty phase because party is entitled to
rebuttal).
15. The structural and architectural condition of the Deauville, and whether the deterioration
of the historic structure was due to the City’s actions or inactions, is the crux of the City’s
allegation of demolition by neglect.
16. The denial of the January 19 and January 24 requests requires good cause pursuant to
Florida Rule of Civil Procedure 1.280(c), and there can be no good cause in denying the
7 It is unknown if Defendants have retained any other experts on this matter as of this date.
8 Although the City Building Official conducted a peer review of Defendants’ report, the scope was limited and does
not include an evaluation of the structural condition of the building and whether such condition is the fault of
Defendants, as alleged by the City in support of its claims for demolition by neglect.
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City and Defendants an equal opportunity to gather evidence. Defendants are not
prejudiced by an inspection, but the City would be catastrophically prejudiced without
access by its own experts because Defendants have unfettered access to gather evidence
and the City has none at this time.
17. Furthermore, this Court has specifically permitted inspection of the Deauville by multiple
defendants in Deauville Hotel Property LLC v. Endurance Am. Spec. Ins. Co., Case No.
2019-016336-CA. The January 19 and January 24 requests for expert inspection are
indistinguishable from the multiple requests granted in the Endurance litigation.
18. In fact, if the Deauville is demolished prior to inspection by the City’s expert(s), the City
will have a tort cause of action for destruction of evidence needed for civil litigation. Miller
v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3d DCA 1990).
19. On February 10, 2022, Defendants filed objections to the January 19 and January 24
requests on the basis that (a) all claims in the lawsuit are moot, except for the utility fee
claims, and therefore the requests are not reasonably calculated to lead to the discovery of
admissible evidence; and (b) the City Building Official had access to the building and, thus,
no further inspection is necessary.
20. First, although Defendants assert that the claims, defenses, and counterclaims regarding
Defendants’ blatant demolition by neglect are “moot,” all of those claims remain pending
at this time. The Deauville is still standing today, and Defendants are obstructing the
processing of the demolition application by refusing code-authorized access to the
property, as well as by refusing to submit the required documentation. Until this Court
rules that the claims are moot, the claims are pending, and the City is entitled to discovery.
21. Second, the pending request is for inspection and documentation of the interior, as well as
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evaluation by an independent structural engineer with experience in historic structures. No
such inspection or evaluation has taken place — the City Building Official does not have
experience in historic structures, and neither does Defendants’ expert. Defendants cannot
simultaneously deny access to the building needed so that the City can process the
demolition application and assert that the City’s claims regarding demolition by neglect
are moot while the building is still standing.
22. Defendants have unlimited opportunities to gather evidence and hire experts, and the City
is entitled to the same.
23. Furthermore, Defendants can hardly seek “sanctions” because they are impeding the City’s
ability to do what needs to be done before the City can even make a final decision on
Defendants’ application for full demolition of the Deauville.
II. The Applicant is Required to Submit an Application for After-the-Fact Certificate
of Appropriateness.
A. The Deauville Beach Resort is Not Exempt from the Historic Preservation
Regulations.
24. Section 118-503(b)(1) requires the applicant to submit an “after-the-fact” application for a
certificate of appropriateness for demolition to the [HPB], within 15 days of the issuance
of the demolition order.” The City sent a letter to the applicant on February 9, 2022, stating
that the after-the-fact application was due on February 3, 2022 and thus was overdue.9
25. Defendants’ position is that because the Building Official issued an “order” for demolition
of the building on January 19, 2022, Defendants are completely exempt from the
requirements of the historic preservation regulations and are not required to submit an
application for a certificate of appropriateness (or anything else, for that matter). This
9 This is standard procedure. The City has sent this 118-503(b) notice letter to at least two other property owners
regarding buildings subject to a demolition order. See Ex. D.
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interpretation ignores all of the language in Chapter 118, and the specific purpose of the
extensive provisions in Chapter 118 prohibiting demolition by neglect.
26. This is nothing new — even before the Building Official issued her order, Defendants’
have always asserted that, because Defendants allowed the building to deteriorate to its
current condition, Defendants’ negligence entitles them to a complete exemption from the
historic preservation ordinances. See Amended Counterclaim at 33, 34.
27. These ridiculous interpretations cannot be reconciled with the City Code prohibiting
demolition by neglect of a historic structure (118-532(g)) and imposing additional
requirements on new construction after a historic structure has been demolished — even if
pursuant to an order of a building official. See City Code 118-503.
28. Defendants’ position would render Chapter 118 meaningless. A property owner could
simply allow a historic structure to deteriorate to the point that the building official issues
a demolition order — as Defendants have done here — and then claim that their own
negligence results in a wholesale exemption from all City Code regulations on demolition
and construction of buildings in historic districts.
29. On January 19, 2022, the City’s Building Official issued a demolition order, but that
demolition order is simply part of the process that could ultimately lead to the issuance of
a Demolition Permit. That “order” is not, to be clear, a Demolition Permit.
30. When an application is submitted for demolition of a building in a historic district, the
demolition permit is processed and includes review and comment from the historic
preservation department, as well as Building and all other City departments.
31. Building reviews for compliance with the Florida Building Code, and HPB reviews
applications for consistency with the goals of restoration, preservation, rehabilitation, and
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reuse of historic sites and districts.
32. Absent an order of the building official or another governmental agency, an applicant is
required to obtain a certificate of appropriateness from the HPB prior to demolition,
modification, or construction of any building in a historic district. Section 118-503(a).
33. Even if the building official issues a demolition order, the applicant is still required to
submit an after-the-fact application for a certificate of appropriateness and the HPB “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.”
Section 118-503(b)(1).
B. Section 118-503(C) Does Not Exempt the Property From Chapter 118.
34. Section 118-503(c) states that permits necessary to comply with a lawful order of the
building official “are exempt from the regulations of this section.” However, this is a clear
scrivener’s error.
35. Section 118-503 does contemplate that a historic structure may be demolished prior to
issuance of a certificate of appropriateness by the HPB, if pursuant to a lawful order of the
building official.
36. However, when this section was written, Section 118-503 had two subsections – (a) and
(b). Section 118-503(a) required the issuance of a certificate of appropriateness prior to
demolition, modification, or new construction in a historic district. Section 118-503(b) set
forth exemptions to this requirement, including an exemption for permits necessary to
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comply with an order of the building official. This did not mean that a certificate of
appropriateness was never necessary; Section 118-503(b) specifically stated that an
application for a certificate of appropriateness must be filed within 15 days after the
building official’s order.
37. In 2005, the City adopted Ordinance 2005-3495 amending Section 118-503 (attached as
Exhibit E). A new subsection (b) was added, and the exemptions were moved from (b) to
a new subsection (c), and the requirement to file the after-the-fact certificate of
appropriateness was moved to the new subsection (b).
38. Unfortunately, the lettered heading references to the exemption section were not correctly
modified. Section 118-503(a) still refers to the exemptions as subsection (b): “Unless
expressly exempted by subsection (b) of this section…” Section 118-503(b) also contains
a circular reference: “After-the-fact certificates of appropriateness for demolition. In the
event any demolition as described above or in subsection (b).”
39. Therefore, it is obvious that the failure to correct the references to the exemption subsection
in the 2005 amendment to the ordinance is merely scrivener’s errors, and any other
interpretation would lead to an absurd result. Amente v. Newman, 653 S0. 2d 1030 (Fla.
1995).10
40. Interpreting any section of the City Code such that an Order of a building official to
demolish a historic structure — after years of willful and public neglect of the building by
the property owner — somehow exempts the structure from Chapter 118 is contrary to the
code provisions against demolition by neglect, established precedent in this jurisdiction,
10 Upon discovery of this scrivener’s error, the City immediately brought a proposed ordinance to correct it. This
ordinance is set for First Reading on February 23, 2022 before the City Commission. The ordinance correcting this
scrivener’s error is attached as Exhibit F.
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and the expressly stated policies of the City of Miami Beach for the “protection of all
existing buildings and structures in the city's designated historic districts or on designated
historic sites from unlawful demolition, demolition by neglect and the failure of property
owners to maintain and preserve the structures.” Section 118-502(5); Babylon
International, Inc. v. City of Miami, et. al., Case No. 16-10409 (11th Jud. Cir. Sept. 16,
2016) (finding there could be no clear legal right to a demolition permit -- even where the
structure had been declared unsafe – where demolition of a historic structure required
review and approval of the City’s Historic and Environmental Preservation Board) (cert.
denied Babylon International, Inc. v. City of Miami, 217 So. 3d 215 (Fla. 3d. DCA 2017)).
WHEREFORE, Plaintiff respectfully requests that this Court:
(1) grant the City’s Motion to Comply with the City Code;
(2) order Defendants to comply with City Code Section 118-562(b)(8) and grant access to
the licensed structural engineer with experience in historic structures to perform an independent
evaluation of the structure;
(3) order Defendants to comply with Section 118-503 and submit an application for an
after-the-fact certificate of appropriateness within 5 business days;
(4) overrule Defendants’ objections and grant Plaintiff’s requests for permission to enter
the Deauville as set forth in the January 19 and January 24 requests;
(5) order that Plaintiff’s expert(s) shall have the requested access prior to March 31, 2022;
and
(6) deny Defendants’ motion for sanctions and supplement to motion for sanctions.
Dated: February 15, 2022
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Respectfully submitted,
Rafael A. Paz, Esq.
City of Miami Beach City Attorney
Fla. Bar No.: 150363
Steven H. Rothstein, Esq.
Deputy City Attorney
Fla. Bar No.:
City of Miami Beach City Attorney’s Office
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
rafaelpaz@miamibeachfl.gov
stevenrothstein@miamibeachfl.gov
AND
LEVINE KELLOGG LEHMAN
SCHNEIDER + GROSSMAN LLP
201 South Biscayne Blvd., 22nd Floor
Miami, Florida 33131
Telephone: (305) 403-8788
Facsimile: (305) 403-8789
By: /s/Jeffrey C. Schneider
JEFFREY SCHNEIDER, P.A.
Florida Bar No. 933244
Primary email: jcs@lklsg.com
Secondary email: gb@lklsg.com
Jezabel P. Lima, Esq.
Florida Bar No. 519431
Primary email: jl@lklsg.com
Secondary email: acd@lklsg.com
By: /s/ Domingo (“Bob”) G. de la Fuente, Esq.
Domingo (“Bob”) G. de la Fuente, Jr., Esq.
Co-Counsel for Plaintiff
Lehtinen Schultz Riedi de la Fuente PLLC
1200 Brickell Avenue Suite 507
Miami, Florida 33131
Tel: 305-760-8540
Florida Bar No. #973998
Email: bdelafuente@lehtinen-schultz.com
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By: _/s/ Amanda Quirke Hand
AMANDA QUIRKE HAND, ESQ.
AQH Law
Co-Counsel for Plaintiff
1395 Brickell Avenue Suite 800
Miami, Florida 33131
Tel: 305-733-2800
Florida Bar No. 26838
Email: ahand@aqhlaw.com
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of February, 2022 the foregoing was served
via the Florida Courts e-filing portal.
By: _/s/ Amanda Quirke Hand
AMANDA QUIRKE HAND, ESQ.
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EXHIBIT A
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MIAM I BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florido 33139. www.miomibeachfl.gov
PLANNING DEPARTMENT
Tel: 305-673-7550, Fax: 305-673-7559
January 26, 2022
Deauville Associates, LLC
c/o Berlinda Meruelo
5101 Collins Avenue, Mgmt. Office
Miami Beach, Florida 33140
Deauville Associates, LLC
c/o Louis Zarestky, Esq., Registered Agent
Ritter Zaretsky Lieber & Jaime LLP
2800 Biscayne Blvd Ste 500
Miami, FL 33137-4535
Deauville Associates, LLC
c/o Jose M. Chanfrau IV, Esq.
5101 Collins Avenue, Apt. 12A
Miami Beach, FL 33140-2780
Subject: BC2116167 - Deauville Hotel, 6701 Collins Avenue
Dear Ms. Meruelo, Mr. Zarestky, and Mr. Chanfrau:
This notice is in reference to the pending application for total demolition of the Deauville Beach
Resort located at 6701 Collins Avenue- Application BC2116167. Please accept this letter as
notice that on January 11, 2022 and pursuant to City Code Section 118-562(b )(8), the Historic
Preservation Board requested that the City retain a licensed independent structural engineer, with
expertise in historic structures, perform an independent evaluation of the structure proposed to
be demolished. On January 20, 2022, the City Commission, in its sole discretion, reviewed and
approved the request. The list of qualified licensed independent structural engineer, with
expertise in historic structures is:
Douglass Wood Associates, Inc
DeSimone Consulting Engineers
The City plans to retain one of the licensed independent structural engineers listed above to
evaluate the Deauville Beach Resort in accordance with City Code Section 118-562(b )(8), which
inspection and evaluation shall take place on or before February 11, 2022. Please contact me at
your earliest convenience to arrange access to the property in conjunction with the review of your
pending application for total demolition (Application BC2116167). If you have any questions
regarding this matter, or if you need any further information or clarifications, please feel free to
contact me.
Historic Preservation & Architecture Office
We are committed to providing excellent public service to all who live, work and play in our vibrant, tropical, historic community.
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EXHIBIT B
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Jose M. Chanfrau, IV P.A.
Attorneys at Law
_____________________________________________________________________________________
5101 Collins Avenue, Suite 4T Miami Beach, FL 33140
(786) 456-4168 (786) 456-6858 Fax (786) 621-5652
jchanfrau@josechafraupa.com jchanfrau@chanfraupa.com
February, 7th, 2022
VIA EMAIL and Us Mail.
City of Miami Beach
Planning Department
Historic Preservation & Architecture Office
1700 Convention Center Drive,
Miami Beach, Florida 33139
Attn. Ms. Debbie Tackett:
Dear Ms. Tackett:
We thank you for your letter dated January 6th Subject BC2116167. It is our view that the Historic
Preservation Board does not have any reason to retain a structural engineer under City Code
Section 118-562(b)(8) due to the fact that a structural engineer who was performing the testing
required pursuant to filing a Demolition Permit submitted a Structural Condition Assessment of
the Deauville on December, 15th, 2021 deeming the structure unsafe fulfilling the requirements
under 118-562(b)(8) for a demolition order to be issued.
No person, or institution has challenged the findings of the Assessment on its merits or on its
processes to reach that conclusion and has been subject, multiple times, to peer review.
Hence, we must deny your request to enter the property to perform additional evaluations of the
structure which has been ordered to be demolished by non other than the City of Miami Beach’s
Building Official.
If we can be of any assistance with anything else, please don’t hesitate to contact us
Sincerely
/s/ Jose M. Chanfrau, IV
General Counsel for Deauville Associates, LLC.
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EXHIBIT C
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MIAM I BEACH
City of Miomi Beoch, 1700 Convention Center Drive, Miomi Beach, Florido 33139. www.miomibeochfl.gov
PLANNING DEPARTMENT
Tel: 305-673-7550, Fox: 305-673-7559
February 9, 2022
Deauville Associates, LLC
c/o Berlinda Meruelo
5101 Collins Avenue, Mgmt. Office
Miami Beach, Florida 33140
Deauville Associates, LLC
c/o Louis Zarestky, Esq., Registered Agent
Ritter Zaretsky Lieber & Jaime LLP
2800 Biscayne Blvd Ste 500
Miami, FL 33137-4535
Deauville Associates, LLC
c/o Jose M. Chanfrau IV, Esq.
5101 Collins Avenue, Apt. 12A
Miami Beach, FL 33140-2780
Subject: BC2116167 - Deauville Hotel, 6701 Collins Avenue
Dear Ms. Meruelo, Mr. Zarestky, and Mr. Chanfrau:
This notice is in reference to the pending application for total demolition of the Deauville Hotel
located at 6701 Collins Avenue, BC2116167. Please accept this letter as notice that on January
19, 2022, the City's Building Official issued a demolition order for the subject building. Pursuant
to Section 118-503(b) the Planning Department approved the building permit (BC2116167) for
the total demolition of the structure, with a condition that the property owner 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. The property owner is also required, to the
greatest extent possible, to retain, preserve and restore any demolished feature of the structure
until such time as the Board reviews and acts on the after-the-fact application. The deadline to
submit the after-the-fact application lapsed on February 3, 2022. The failure to satisfy this
condition by the required deadline invalidates the Planning Department's conditional approval.
Please submit the required after-the-fact application on or before February 18, 2022, so that the
Board may review the demolition and determine whether and how the demolished building shall
be replaced. In the event the applicant fails to file an "after-the-fact" application for a certificate
of appropriateness for demolition to the historic preservation board on or before February 18,
2022, the City will initiate enforcement proceedings as set forth in City Code Section 18-503(b).
If you have any questions regarding this matter, or if you need any further information or
clarifications, please feel free to contact me.
"%) A é
Historic Preservation & Architecture Officer
We are committed to providing excellent public service to all who live, work and play in our vibrant, tropical, historic community.
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EXHIBIT D
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M IAMI BEACH
C ity of Mi ami Beach, 1700 Convention Center Drive, Miami Beach, Florido 33139, www .miamibeachfl.gov
PLANNING DEPARTMENT
Tel: 305-673-7550, Fox: 305-673-7559
July 10, 2019
SENT VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Antonio Vilarino, President
Vilarino Property Group, Inc.
6015 Garfield Street
Hollywood, FL 33024
RE: 6979 Collins Avenue, Miami Beach - Miami-Dade County Unsafe Structures
Demolition Order
Mr. Vilarino:
On June 20, 2018, the Miami -Dade County Unsafe Structures Board conducted a hearing
with regard to an unsafe structures violation for the building located at 6979 Collins Avenue.
On June 27, 2018 the board decision was transmitted requiring that a 40 year Recertification
Report be submitted within ninety (90) days from the June 20, 2018 hearing date. Since this
requirement was not satisfied, the City of Miami Beach Building Department is proceeding
with the County's orders of demolition.
Please be advised that the subject building is classified as a Contributing property and is
located within the proposed North Beach Resort Local Historic District designated on March
17, 2004 (Ord 2004-3438).
Pursuant to Section 118-503(b )(2) of the Land Development Regulations of the Miami Beach
City Code, in the event an Emergency Demolition Order is issued, such demolition order
requires that the property owner file an application for an "after-the-fact" Certificate of
Appropriateness for Demolition to the Historic Preservation Board within fifteen (15) days of
the issuance of an Emergency Demolition Order.
The Historic Preservation Board shall review the demolition and determine whether and how
the demolished building shall be replaced. In the event an "after-the-fact" application for a
Certificate of Appropriateness for Demolition is not filed within fifteen ( 15) days of the issuance
of the Emergency Demolition Order, the City may initiate enforcement proceedings as
provided in section 114-8 of the City Code or by enforcement procedures as set forth in the
Charter and penalties as provided in section 1-14 of the City Code. If you have any questions,
or require additional information, please do not hesitate to contact me.
Chief of Historic Preservation
C: Irina Vilarino
W e are committed to providing excellent public servic e to all who live, work and play in our vibrant, tropical, historic community.
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July 10, 2019
Page 2 of 2
Ana Salgueiro, Director, Building Official
Thomas Mooney, Planning Director
Nick Kallergis
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EXHIBIT E
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RECONSTRUCTION OF DEMOLISHED PROPERTIES AND ENGINEERING
REQUIREMENTS
ORDINANCE NO.
2005-3495 AN ORDINANCE OF THE MAYOR
AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA AMENDING THE LAND
DEVELOPMENT REGULATIONS OF THE CODE OF THE CITY OF MIAMI
BEACH, BY AMENDING CHAPTER
118, "ADMINISTRATION AND REVIEW PROCEDURES,"
ARTICLE X, "HISTORIC PRESERVATION,"
DIVISION 1, "GENERALLY," BY AMENDING
SECTION 118-503 TO MODIFY THE
REQUIREMENTS FOR AN AFTER-THE-
FACT CERTIFICATE OF APPROPRIATENESS;
BY AMENDING CHAPTER 118, "
ADMINISTRATION AND REVIEW PROCEDURES,"
ARTICLE X, "HISTORIC PRESERVATION," DIVISION
3, "ISSUANCE OF CERTIFICATE OF
APPROPRIATENESS/CERTIFICATE TO DIG/CERTIFICATE OF
APPROPRIATENESS FOR DEMOLITION", BY AMENDING SECTION
118-562 TO ADD
A REQUIREMENT FOR AN
INDEPENDENT STRUCTURAL EVALUATION FOR DEMOLITION
REQUESTS;PROVIDING FOR REPEALER, CODIFICATION,SEVERABILITY AND AN EFFECTIVE DATE.WHEREAS, the City of
Miami Beach wishes to preserve its unique architectural history and to maintain the structural, historical
and architectural integrity of existing structures
in the City's designated historic districts and sites; and WHEREAS, the
City of Miami Beach Historic Preservation Board and the Planning Department are
the primary vehicles for preserving this history and integrity; and,WHEREAS, the City of
Miami Beach desires to refine, clarify, expand and enhance existing procedures of the
Historic Preservation Board regarding after-the-fact Certificates of Appropriateness in order to preserve
the architectural history and built character of the City; and,WHEREAS, the City of
Miami Beach desires to refine, clarify, expand and enhance existing procedures and requirements for
Certificates of Appropriateness for Demolition in
order to ensure an objective review of contributing structures; and,WHEREAS, the
City of Miami Beach Historic Preservation Board and Planning Board strongly endorses the proposed
amendments to the Historic Preservation Section of the Code; and WHEREAS, the amendments set
forth
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NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA.
SECTION 1. That Chapter 118, Entitled "Administration and Review Procedures",
Article X,Entitled "Historic Preservation", Division 1, entitled "Generally" of
the Land Development Regulations of the Code of the City of Miami Beach, Florida is hereby
amended as follows:Sec. 118-
503. Scope. Dolicies and exemptions.a) Scope. Unless expressly exempted by subsection (b)
of this section, no building permits shall be issued for new construction, demolition,
alteration, rehabilitation, signage or any other physical modification of any building,
structure, improvement, landscape feature, public interior or site individually designated in
accordance with sections 118-591, 118-592 and 118-593, or located
within an historic district, nor shall any construction, demolition, alteration, rehabilitation,signage or
any other exterior or public interior physical modification, whether temporary or permanent, without a
permit, be undertaken, without the prior issuance of a certificate of appropriateness or certificate to dig
by the historic preservation board, or the planning director or his designee, in accordance with
the procedures specified in this section. For purposes of this article,alteration" or "modification"
shall be defined as any change affecting the external appearance and internal structural system
including columns, beams, load bearing walls and floor plates and roof plates of a structure or other
features of the site including but not limited to landscaping and relationship
to other structures, by additions, reconstruction, remodeling, or maintenance involving a change in color, form, texture, signage
or materials, or any such changes in the appearance of public interior spaces. The foregoing shall exclude
the placement of objects in or on the exterior or public interior of a
structure or
site, not materially affecting its appearance or architectural
integrity.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 subiect site. whichever is appropriate. Additionally. this article
maybe enforced and violations maybe punished as provided in section 114-8 of this Code: or
by enforcement
procedures as set forth
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The 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. This policy 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 shall also be applicable to any request for an "after-the-fact"
Certificate of Appropriateness. This policy 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:
i. The proposed new structure is consistent with the context and character of the immediate area: and
ii. 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
non-conforming. any such reconstruction shall comply with all of the requirements of
Chapter 118.Article IX of these Land
Development Regulations.W Exemptions. The following permits are exempt from the regulations of
this section:1) All permits for plumbing, heating, air conditioning, elevators,
fire alarms and extinguishing equipment, and all other mechanical and electrical equipment not
located on exteriors or within public interior spaces, and not visible from the public
right-of-way.2) Any permit necessary for compliance with a lawful order
of the building official,county unsafe structures board, fire marshal, or public works director when
issuance of such permit on an immediate basis is necessary for the public health or safety or to prevent injury
to life, limb or property. In the event that compliance includes full or partial demolition
of any building, structure,improvement, landscape feature, public interior or site individually
designated in accordance with sections 118-591, 118-592 and 118-
593, or located within an historic district an emergency meeting of the historic preservation board shall
be called prior to the demolition being authorized, unless the work is of an emergency nature and must
be done before a meeting could be convened. The historic preservation board may offer
alternative suggestions regarding the need for manner and scope of demolition; these suggestions shall
be taken into consideration by the official issuing the final determination
regarding demolition. However, the final determination regarding demolition shall be made by the official issuing the order. In
the event that the historic preservation board does not hold the meeting prior to the scheduled
demolition, the demolition may take place as scheduled. ffi.-.the event any demolition as
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reviey/, the demolition order shall be conditioned to require the property OT.T/ner to file an "after the
fact" application for a certificate of appropriateness f.or demolition to the historic preservation board,
T.vithin 15 days of the issuance of the demolition order: no "after the fact" fee shall be assessed
for such application. The board shall reyieTll the demolition and determine T.vhether and ho'w
the demolished building, structare, landscape featare or the partially or fully demolished feature of
the exterior or public interior space of a structare, shall be replaced. The property oT.vner shall also
be required, to the greatest extent possible, to retain, preserve and store any demolished featare of
a structure antil such time as the Board revieT.vs and acts on the "after the fact" application. In
the eTlent the propertyO:Olmer fails to file an "after the fact" application for a certificate
of appropriateness for demolition to the historic preservation board T.Tlithin 15 days of the
issuance ofan emergency demolition order the city may initiate enforcement proceedings including
proceedings to reT/olee the certificate of use, occupational license, any active building permit(s) or
certificate of occupancy of the slibj ect site, \vhichever isappropriate. f...dditionally, this article may
be enforced and violations may be punished as provided in section 111 g of this Code;
or by enforcement procedaresas set f.orth in the Charter and penalties as provided in section
1 14 of this Code.3) Any permit issued for an existing structure in
a designated historic district which has
been specifically excluded from the district.SECTION 2. That Chapter
118, Entitled "Administration and Review Procedures", Article X,Entitled "
Historic Preservation", Division 3, entitled "Issuance Of Certificate Of Appropriateness/Certificate To
Dig/Certificate Of Appropriateness For Demolition" of the Land Development Regulations of the Code of the
City
of Miami
Beach, Florida is hereby amended as follows:Sec. 118-562. Application.a) An application
for a certificate of appropriateness maybe filed with the historic preservation board at the same time or in
advance of the submission of an application for a building permit.Copies of all filed
applications shall be made available for inspection by the general
public.b) All applications involving demolition, new building construction, alteration, rehabilitation,renovation,
restoration or any other physical modification of any building, structure, improvement,landscape
feature, public interior or site individually designated in accordance with sections 118-591,118-592
and 118-593, or located within an historic district shall be on a form provided
by the planning department and shall include such information and attached exhibits as
the board and the planning department determine are needed to
allow for complete evaluation of the
proposed demolition, construction and other
physical
improvements, alterations or
modifications including,but not limited to, the following:1) Written description of
proposed action.2) Survey.3) Complete site
plan.4) Materials containing detailed data as to architectural
elevations and plans showing proposed changes and existing conditions to be preserved.5) Preliminary plans showing
new construction in cases of demolition.6) A financial feasibility study of the new
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existing historic structure. Consideration of parking needs and demands shall be addressed within the
feasibility study, as well as alternative methods of providing parking. The study will also determine
whether the retention of the building would deny the owner economically viable use of the property.
7) An historic resources report, containing all available data and historic
documentation regarding the building, site or
feature.8) Any application which involves substantial structural alterations to or the substantial
or full demolition of any building, structure, improvement, significant landscape feature, public
interior or site individually designated in accordance with sections 118-
591, 118-592 and 118-593, or located within an historic district, with the
exception of non substantial exterior structural repairs, alterations and improvements (as may be more specifically defined by
the board in its by-laws and application procedures), shall be required to include
a structural evaluation and corrective action report prepared by a professional (structural) engineer, licensed in the state as
a part of the application at time of submission. For non substantial exterior
structural repairs, alterations and improvements (as may be more specifically defined by the board in its by-
laws and application procedures), a signed and sealed engineering drawing shall be required.
The structural evaluation and corrective action report shall
include, but not be limited to, the following:a. Review and analysis of structural conditions,
based upon the engineer's direct on-site inspection. and analysis of the structural condition of the
subject property, as well as any and all earlier structural records and drawings, as may
be available. This shall include documentation, in the form of photographs, plans, elevations, and written
descriptions, of any and all areas, portions, or elements of the building or structure that
shows existing or potential structural problems or concerns,in full
accordance with the requirements of the building official.b. Results of testing and analysis of structural
materials and concrete core samples, taken at a sufficient number of locations in and about the
building, inclusive of but not limited to foundations,columns, beams, walls, floors and roofs.
The report shall professionally analyze and evaluate the compressive strength, chloride content, and
overall structural condition of each and every core sample and assess the condition of all other
structural elements or systems in the building or structure, regardless
of material, that may be of structural concern.c. Proposed corrective measures
and monitoring of the work, including detailed plans,elevations, sections and specifications, as well
as written descriptions of any and all structural corrective measures that will be undertaken for any
and all areas, portions, or elements of the building or structure that may be
of structural concern. These documents shall contain sufficient supporting evidence to establish that the
corrective measures proposed will be adequate to restore and preserve the structural integrity of the
identified areas, portions, or elements to be preserved,including a written and detailed description of
the process by which the proposed corrective work will proceed, as well as the sequencing of the
work. Finally, a written verification shall be included stating that all structural conditions throughout
the building or structure shall be closely monitored by a special inspector, approved by the
building department and employed by the applicant, during the course of all demolition, new construction,
and bracing and shoring work. This provision is required in order to immediately identify any and
all adverse changes in the structural integrity or stability of the subject building or structure during
the course of the work, inclusive of architectural features. The special inspector shall provide
expeditious direction to the contractor specific to how the observed adverse changes shall
be quickly and properly stabilized and permanently corrected.This information shall be immediately conveyed to
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their review and any necessary actions.
d. Proposed methodology and process for demolition, including detailed plans, elevations,
sections and specifications, as well as a written description of any and all temporary shoring and
bracing measures and all measures required to protect the safety of the public and workers. These
measures shall be fully implemented and in place prior to and during the course of any demolition
and construction activity on the subject property. The documents shall contain sufficient supporting
evidence to establish that the corrective measures proposed will be adequate to restore and preserve
the structural integrity of the identified areas, portions, and elements, including a written and detailed
description of the proposed process and sequencing of demolition, as well as a detailed description of
the demolition methods to be utilized. Finally, a written verification shall be included stating that all
work as described above shall be closely monitored during the course of work by a special inspector
approved by the building department. This inspector shall be employed by the applicant.
e. A signed and sealed certification that the structural integrity and stability of the subject
building( s )/structure( s), and its architectural features, shall not be compromised in any way during
the course of any and all proposed work on the subject site.
9) The Historic Preservation Board. for applications involving the full demolition of
any contributing building. structure or site individually designated in accordance with
sections 118-591.118-592 and 118-593. or located within an historic district.
mav reouest the Citv to retain a licensed independent structural engineer. with
expertise in historic structures. to perform an independent evaluation of the structure proposed to
be demolished. The Citv Commission" in its sole discretion. mav review the reouest and
annronriate funds to cover the costsassociated with theretention of such en!!ineer.
The Plannin!! Denartment shall select the independent structural engineer from a qualified list it maintains. If
it is determined by the independent structural engineer that the building. structure or site can be
retained. preserved or restored. and a certificate of anorooriateness is issued based unon such
determination. then the property owner shall re-imburse the City for all costs it paid to such engineer. and
the property may be liened to assure payment. If it is determined by the independent structural
engineer that the building. structure or site cannot be retained. preserved or restored. then the City
shall bear the responsibility of all
costs incurred
by such independent structural engineer.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. The
sections of this ordinance may be renumbered or relettered to accomplish such intention, and
the word "ordinance" may be
changed to "
section",article", or other appropriate word.SECTION 4. REPEALER.All ordinances or parts of ordinances
in
conflict herewith
be and the same are hereby repealed.SECTION 5. SEVERABILITY.If any section, subsection, clause
or provision of this Ordinance is held
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SECTION 6. EFFECTIVE
DATE.This Ordinance shall take effect ten days
follow'PASSED AND ADOPTED this 19th day
0 Dc
0 2005.
ATTEST~ f}~
CITY CLERK ~
Robert Parcher David
Dermer APPROVED
AS TO
FORM & LANGUAGE
o::;,15;;
ON
City Attome~oI07/ar Date
Underscore d notes new language Double Bold Underscore denotes changes pursuant to
and followingFirst Reading Approval 10/3/2005 T:\AGENDA\2005\
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CITY OF MIAMI BEACH
COMMISSION ITEM.SUMMARY
Condensed Title:
Ordinance amending the Historic Preservation Section pertaining to requirements for new construction on
those properties where a contributing building is demolished and requirements for evaluations by
independent structural enQineers.
Issue:
Amendment to the Historic Preservation Section of the City Code to clarify procedures and requirements
for new construction on those properties where a contributing building is demolished and to implement new
re uirements for evaluations b inde endent structural en ineers.
Item Summa IRecommendation:
On September 8,2005, the City Commission approved the proposed Ordinance on First
Reading, subject to minor modifications regarding the allocation of funding for an independent engineer.
The Administration recommends that the Ma or and Cit Commission ado t the ro
osed Ordinance.Adviso
Board Recommendation:The Historic Preservation Board reviewed the Ordinance on March 8,
2005 and recommended approval.The Planning Board reviewed the proposed Ordinance
on March 29, 2005, recommended certain modifications and continued the item to the April
26, 2005 meeting. On April 26, 2005 the Planning Board transmitted the proposed Ordinance
to the City Commission with a favorable recommendation. On July 11,2005,
the Land
Use and
Development Committee reviewed the proposed
Ordinance
and
recommended a roval.
Financial Information:Source of Amount Account Approved
Funds: 1 D 2 3
4
FinanceDept. Total Cit Clerk's Office Le islative Trackin Jorge Gomez or
Thomas Mooney
Si
T6kENDA\
2005\Oct1905\ egul r\RECONSTRU
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C I T Y 0 F M I A M I B E A C,
H CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI
BEACH, FLORIDA 33139 http:\\ci.miami-
beach.f1.
us COMMISSION MEMORANDUM To:Mayor
David Dermer and Members Of
The City
Commission Date: October 19,
2005 From:
Jorge M.
Gonzalez City
Manager SECOND READING PUBLIC HEARING
Subject:Reconstruction and Engineer Requirements AN ORDINANCE OF THE MAYOR AND
CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF THE
CITY OF MIAMI BEACH, BY AMENDING
CHAPTER 118, ENTITLED "ADMINISTRATION AND REVIEW
PROCEDURES," ARTICLE X, ENTITLED "HISTORIC PRESERVATION,"
DIVISION 1, ENTITLED "GENERALLY," BY AMENDING SECTION 118-503
TO MODIFY THE REQUIREMENTS FOR AN
AFTER-THE-FACT CERTIFICATE OF APPROPRIATENESS;
BY AMENDING CHAPTER 118,ENTITLED "ADMINISTRATION
AND REVIEW PROCEDURES," ARTICLE X, ENTITLED "
HISTORIC PRESERVATION," DIVISION 3, ENTITLED ISSUANCE OF CERTIFICATE
OF APPROPRIATENESS/CERTIFICATE TO DIG/CERTIFICATE OF APPROPRIATENESS
FOR DEMOLITION", BY AMENDING SECTION
118-562 TO ADD A
REQUIREMENT FOR AN INDEPENDENT STRUCTURAL
EVALUATION FOR
DEMOLITION REQUESTS; PROVIDING FOR
REPEALER, CODIFICATION,
SEVERABILITY AND AN EFFECTIVE DATE.ADMINISTRATION RECOMMENDATION Adopt the proposed Ordinance.ANAL
YSIS Recently, the City Commission adopted, on First Reading, modifications to the Non-
Conforming Structures section of the City Code, which was the result of the recommendations
of the Mayor's Blue Ribbon Panel on the Structural Integrity of Historic
Buildings. This
ordinance, however, did not address "conforming" buildings in the City's historic districts.In order
to address any "conforming" buildings which may be required to be demolished in the future, by
order of the Building Official, the same policy clause that was developed for
the "non-conforming structures" section of the City Code has been proposed for
conforming" buildings. Specifically, a section has been added creating a policy
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October
19, 2005
Commission Memorandum Ordinance - Reconstruction and
Engineer Requirements
Page 2 of 3 area. The Historic Preservation Board will have the latitude, on a case-
by-case basis, to require the reconstruction of any structure deemed
to be structurally unsafe.By limiting the amount of floor area that can be added to a
contributing structure, it is anticipated that this change will encourage the preservation of
structures by creating an incentive for their preservation. It will also put all current and
future property owners on notice that existing structures in local historic districts,
that are designated contributing,would have to be reconstructed if they are found
to be structurally unsafe.In addition to this change, new language has been added
requiring that an independent licensed structural engineer with expertise in historic structures, be
retained to evaluate any application which involves the full demolition of any contributing
building located within an historic district, inclusive of an application for an after-the-
fact certificate of appropriateness for demolition. The independent engineer shall be chosen from a
list approved pursuant to an RFQ, and the evaluation of the engineer shall take
into consideration any potential methods for retaining and preserving the subject structure. This
portion of the proposed ordinance amendment was referred by the City Commission to the
Planning Board in order to address the potential conflicts associated with a structural
evaluation of an historic structure being performed by an engineer retained and paid for
by the property owner.The Ordinance was reviewed by the Historic Preservation
Board on March 8, 2005, which recommended approval. The Planning Board
reviewed the revised Ordinance on March 29, 2005 and continued the item
to the April 26, 2005 meeting. The Planning Board had specific concerns pertaining to the
inclusion of parking impact fees in areas outside of local historic districts, as
well as the proposed mandatory requirements for new construction in the event a contributing
building is demolished. In order to address
these concerns the following modifications to the Ordinance were made:1. The policy for buildings
demolished by an Order of the Building Official or without
a Certificate of Appropriateness from the Historic Preservation Board has been modified to require
that any new structure be limited to the height, massing and square footage
of the original structure (not to exceed the height and FAR requirements of the
Code) and that the architectural style of the new structure be
subject to the review and approval of the Historic Preservation Board.2.
Specific criteria was
established that allows the Historic Preservation Board to rebut the aforementioned policy.
3. The requirements for an independent structural engineer were modified so that such
engineer would act on behalf of the Historic Preservation Board, and not the
property owner. Also, such engineer would be chosen by
the Board, from a qualified list to be maintained by the Planning
Department.On April 26, 2005 the Planning Board transmitted the Ordinance
to the City Commission with a favorable recommendation. On June 8,
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October
19, 2005
Commission Memorandum ,Ordinance - Reconstruction and
Engineer Requirements
Page 3 of 3 On July 11, 2005, the Land Use
and Development Committee endorsed the proposed ordinance, with the proviso that the structure of
the ordinance be simplified and made easier to read. In order to address this
requirement, the Administration has redrafted the proposed Ordinance in
a manner that reorganizes the language.The most significant change was introducing a new
portion of the Ordinance pertaining to the new City policy on the reconstruction requirements
for lots on which a contributing structure was located and the ability of the
Historic Preservation Board to waive such policy. This section of the proposed
Ordinance amendment was relocated from the proposed
Ordinance pertaining to "Non-Conforming Structures".On September 8, 2005, the
City Commission approved the subject Ordinance on First Reading. The Commission expressed some
concern with regard to the funding of the independent engineer and a strong desire
to assure fiscal control. In this regard, new language has been added to
the proposed Ordinance requiring that the Commission, at their discretion, ratify any and all
services of an
independent engineer requested by the Historic Preservation Board.Additionally, the City Commission must
also allocate the appropriate funds, to cover the costs associated with the
retention of an independent engineer, prior to the commencement of any work. Finally, instead
of the engineer being chosen by the Historic Preservation Board, the
Commission requested that responsibility be transferred to the Planning Department. The selection
would come from a qualified list of structural engineers approved pursuant to
an RFQ,
and maintained by the Planning Department.FISCAL IMPACT The proposed Ordinance is expected
to have a fiscal impact under certain circumstances.If the independent structural
engineer determines that the structure cannot be retained,preserved or restored, then the City
bears responsibility of all costs incurred by the
engineer. This is estimated to cost $25,000 per analysis.In order to assure fiscal control,
the Ordinance has been modified to require that the City Commission have final authority
over the retention of
an
independent engineer, as well
as the allocation of funds.CONCLUSION Adopt the proposed Ordinance.Pursuant to Section 118-
164(4) of the City Code, an affirmative vote of five-sevenths shall
benecessary inorder
to enactany amendments to the Land Development Regulations.JMG/TH/
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CITY OF MIAMI BEACH-
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY Qiven that public hearings will be held by the Mayor and
City Commission of tne City of Miami Bea~h, Florida, in, the 9on:mission
Chambers, 3rdfloor, City Hall, 1700COf'lventlon Center Dnve, Miami
Beach,Florida, on Wednesday, October 19,2005, to
consider the
following:10:15 a.m.An Ordinance Amending Miami Beach City
Code Chapter 2, Article VI, Division 3, By
Creating Section 2-373 Thereof, Entitled "Requirement For City Contractors
To Provide Equal Benefits For Domestic Partners," By Mandating
That City Contractors Provide Equal Benefits For Domestic Partners.
Inquiries may
be directed to the Procurement Division at (305) 673-7490.1
0:20 a.m.A Resolution' Setting A First Public Hearing To
Consider Extending The Approval Of The Miami Beach Convention Center As
A Venue For Conventions,Expositions Or Events Involving Adult Materials, Pursuant
To The Provisions
Of Section 847.0134, Florida Statutes; and Referring The
Matter To
The Land Use And Development Committee.Inquiries may be directed to
the Planning Department at (305) 673-7550.10:30 a.
m.An Ordinance Amending The Land Development Regulations
Of The Code Of .The City Of Miami Beach, By Amending
Chapter 118, "Administration And Review Procedures," Article
X, "Historic Preservation," Division 1, "Generally,"By Amending
Section 118-503 To Modify The Requirements For An
After- The-Fact Certificate Of Appropriateness; By Amending
Chapter 118,Administration And Review Procedures," Article X, "Historic Preservation,"
Division 3, "
Issuance Of Certificate Of Appropriateness/Certificate To Dig/Certificate
Of Appropriateness
For Demolition," By Amending Section 118-562 To Add A Requirement
For An Independent Structural Evaluation For Demolition Requests.Inquiries may bedirectedtothePlanningDepartmentat (305) 673-7550.1
0:35 a.m. .An Ordinance Amending The Land Development
Regulations Of The Code Of
The City Of Miami Beach, By Amending Chapter 138, "
Signs," By Amending Article I, "In General," By Amending Section 138-11
To Clarify The Requirements And Procedures For The Removal Of Signs; Providing For InclusionInTheCityCode.Inquiries may bedirected to the Planning Department at (305) 673-7550.INTERESTED PARTIES are invited to appear at this
meeting, or be represented by an agent, or to express their views
in writing addressed to the City Commission, c/o the City
Clerk, 1700 ConventioJ.l Center Drive, 1 st Floor, City Hall, Miami Beach, Florida 33139. Copies
of the~ ordinances are available
for public inspection during
normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 1st
Floor, City Hall, and Miami Beach, Florida 33139.This meeting may be continued and
under such circumstances additional legal notice would not be provided.Robert E. Parcher, City Clerk
City of Miami Beach Pursuant to Section 286.0105, Fla. Stat., the City
hereby advises the public that: if a person decides to appeal any decision made
by the City Commission with respect to any matter considered at its meeting
or its hearing,such person must ensure that a verbatim record
of
the proceedings is made, which record includes the testimony and evidence upon
which the appeal is to be . based. This notice does not constitute consent bytheCityfortheintroductionoradmissionofotherwiseinadmissibleor
irrelevant evidence, nor does it authorizechallenges or appeals not otherwise allowed bylaw. .
To request this material in accessible format, sian lanQuaqe
interoreters,
information
on
access
for
persons
with
disabilities,
and/
or
any ~
accornmodatlon
to
review
e.
r.
y
document
or
participate
in
any
C!
t:/-
sponsored
proceeding.
please
contact (
305)
604-
2489 (
voice), (
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EXHIBIT F
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MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO:
FROM:
DATE:
Mayor Dan Gelber and Members of the City Commission
Rafael A. Paz, City Attorney ~
February 23, 2022 FIRST READING
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 118 OF THE CODE OF THE
CITY OF MIAMI BEACH, ENTITLED "ADMINISTRATION AND REVIEW
PROCEDURES," ARTICLE X, ENTITLED "HISTORIC PRESERVATION,"
DIVISION 1, ENTITLED "GENERALLY," BY AMENDING SECTION 118-503
THEREOF, ENTITLED "SCOPE, POLICIES, AND EXEMPTIONS," TO
CORRECT A SCRIVENER'S ERROR; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
The proposed Ordinance, which is sponsored by Mayor Dan Gelber, is submitted to the City
Commission for first reading on February 23, 2022 to correct a scrivener's error inadvertently
included in Ordinance No. 2005-3495. There is no substantive change.
BACKGROUND
On October 19, 2005, the Mayor and City Commission of the City of Miami Beach adopted
Ordinance No. 2005-3495, amending Section 118-503 of the City Code, to expand and enhance
the procedure of the Historic Preservation Board regarding after-the-fact Certificates of
Appropriateness.
Ordinance No. 2005-3495 created subsection 118-503(b) to modify the requirements for an after-
the-fact certificate of appropriateness.
Additional edits were made after First Reading, as denoted by double-underline additions and
double-strikethrough deletions throughout Ordinance No. 2005-3495 (attached as Exhibit A), but,
inadvertently, paragraph references to subsection 118-503(c), governing exemptions, were not
updated and a few intended words were omitted.
A correction to the scrivener's error is required for uniformity and consistency throughout Section
118-503; and no substantive change to the Ordinance is intended.
RAP/RFR/ym
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RE CONS TR UC TION O F D EM OL ISHED PR OPER TIES A ND EN GINEER IN G
RE Q UIRE MEN TS
ORDINANCE NO. 2005-3495
AN ORDINANCE OF THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA
AMENDING THE LAND DEVELOPMENT REGULATIONS
OF THE CODE OF THE CITY OF MIAMI BEACH, BY
AMENDING CHAPTER 118, "ADMINISTRATION AND
REVIEW PROCEDURES," ARTICLE X, "HISTORIC
PRESERVATION," DIVISION 1, "GENERALLY," BY
AMENDING SECTION 118-503 TO MODIFY THE
REQUIREMENTS FOR AN AFTER-THE-FACT
CERTIFICATE OF APPROPRIATENESS; BY AMENDING
CHAPTER 118, "ADMINISTRATION AND REVIEW
PROCEDURES," ARTICLE X, "HISTORIC
PRESERVATION," DIVISION 3, "ISSUANCE OF
CERTIFICATE OF APPROPRIATENESS/CERTIFICATE TO
DIG/CERTIFICATE OF APPROPRIATENESS FOR
DEMOLITION", BY AMENDING SECTION 118-562 TO ADD
A REQUIREMENT FOR AN INDEPENDENT STRUCTURAL
EVALUATION FOR DEMOLITION REQUESTS;
PROVIDING FOR REPEALER, CODIFICATION,
SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach wishes to preserve its unique architectural history and
to maintain the structural, historical and architectural integrity of existing structures in the City's
designated historic districts and sites; and
WHEREAS, the City of Miami Beach Historic Preservation Board and the Planning
Department are the primary vehicles for preserving this history and integrity; and,
WHEREAS, the City of Miami Beach desires to refine, clarify, expand and enhance existing
procedures of the Historic Preservation Board regarding after-the-fact Certificates of Appropriateness
in order to preserve the architectural history and built character of the City; and,
WHEREAS, the City of Miami Beach desires to refine, clarify, expand and enhance existing
procedures and requirements for Certificates of Appropriateness for Demolition in order to ensure an
objective review of contributing structures; and,
WHEREAS, the City of Miami Beach Historic Preservation Board and Planning Board
strongly endorses the proposed amendments to the Historic Preservation Section of the Code; and
WHEREAS, the amendments set forth below are necessary to accomplish all of the above
objectives.
EXHIBIT A
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NOW THE REFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA.
SECTION l. That Chapter 118, Entitled "Administration and Review Procedures", Article X,
Entitled "Historic Preservation", Division 1, entitled "Generally" of the Land Development
Regulations of the Code of the City of Miami Beach, Florida is hereby amended as follows:
Sec. 118-503. Scope, policies and exemptions.
(a) Scope. Unless expressly exempted by subsection (b) of this section, no building
permits shall be issued for new construction, demolition, alteration, rehabilitation, signage or any
other physical modification of any building, structure, improvement, landscape feature, public
interior or site individually designated in accordance with sections 118-591, 118-592 and 118-593, or
located within an historic district, nor shall any construction, demolition, alteration, rehabilitation,
signage or any other exterior or public interior physical modification, whether temporary or
permanent, without a permit, be undertaken, without the prior issuance of a certificate of
appropriateness or certificate to dig by the historic preservation board, or the planning director or his
designee, in accordance with the procedures specified in this section. For purposes of this article,
"alteration" or "modification" shall be defined as any change affecting the external appearance and
internal structural system including columns, beams, load bearing walls and floor plates and roof
plates of a structure or other features of the site including but not limited to landscaping and
relationship to other structures, by additions, reconstruction, remodeling, or maintenance involving a
change in color, form, texture, signage or materials, or any such changes in the appearance of public
interior spaces. The foregoing shall exclude the placement of objects in or on the exterior or public
interior of a structure or site, not materially affecting its appearance or architectural integrity.
(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.
2
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T he policy of the C ity of M iam i B each shall be that a contri b u tin g build in g dem o lished
w ith out obtain in g a C ert ifi cate of A ppro pri aten ess fr om th e hi stori c preserv ation b o ar d. shall only b e
replaced w ith a new stru ctur e that incorp ora tes the sam e heigh t. m assin g an d squ ar e fo otage of the
previous stru ctur e on site. not to exceed the m ax im um F AR an d heigh t p erm itt ed un d er th e C ity
C ode, w ith no addi tion al squar e fo otage added. T his policy shall b e app licab le in th e ev en t a
buildin g perm it fo r new constru ction or fo r repair or rehabilitation is issu ed. an d d em o lition occur s
fo r an y reas on . in cl uding but not limi ted to. an order of th e B uildin g O ffi cial or th e C o un ty U n safe
Stru ctur es B oard. Thi s policy shall also be app licable to an y requ est fo r an "aft er-th e-fac t"
C ert ifi cate of A ppro pri ateness. Thi s policy m ay be rebutted . an d th e H istori c P reserv ation B o ar d m ay
allow fo r the addition of m ore squar e fo otage. w here appro pri ate. not to ex ceed the m ax im um
perm itt ed under the C ity C ode. if it is established to the satisfa ction of the H istori c P re serv ati on
B oar d th at the fo ll ow in g cri teri a have been satisfi ed:
i. T he pro posed new stru ctur e is consistent w ith the context and char acter of th e imm ediate ar ea; an d
ii. 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 non-
conforming. any such reconstruction shall comply with all of the requirements of Chapter 118,
Article IX of these Land Development Regulations.
!£1 Exemptions. The following permits are exempt from the regulations of this section:
(1) AII permits for plumbing, heating, air conditioning, elevators, fire alarms and
extinguishing equipment, and all other mechanical and electrical equipment not located on exteriors
or within public interior spaces, and not visible from the public right-of-way.
(2) Any permit necessary for compliance with a lawful order of the building official,
county unsafe structures board, fire marshal, or public works director when issuance of such permit
on an immediate basis is necessary for the public health or safety or to prevent injury to life, limb or
property. In the event that compliance includes full or partial demolition of any building, structure,
improvement, landscape feature, public interior or site individually designated in accordance with
sections 118-591,118-592 and 118-593, or located within an historic district an emergency meeting
of the historic preservation board shall be called prior to the demolition being authorized, unless the
work is of an emergency nature and must be done before a meeting could be convened. The historic
preservation board may offer alternative suggestions regarding the need for manner and scope of
demolition; these suggestions shall be taken into consideration by the official issuing the final
determination regarding demolition. However, the final determination regarding demolition shall be
made by the official issuing the order. In the event that the historic preservation board does not hold
the meeting prior to the scheduled demolition, the demolition may take place as scheduled. In the
event any demolition as described above should take place prior to historic preservation board
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revi ew , the dem olition order shall be con dition ed to requ ire the pro perty 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
sueh 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 store any demolished feature of a
structure until such time as the Board reviews and aets on the "after the fact" application. I the
event the-property owner fails to- file- an "after the fact! application- for a certificate- of
appropriateness for demolition to the histori preservation board within 15 days of the issuance of an
emergeney 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
oeeupaney of the subjeet site, whichever is appropriate. Additionally, this article may be enforced
and violations may be punished as provided in section1148 of this Code; or by enforcement
procedures as set forth in the Charter and penalties as provided in section I14 of this Code.
(3) Any permit issued for an existing structure in a designated historic district which has
been specifically excluded from the district.
SECTION 2. That Chapter 118, Entitled "Administration and Review Procedures", Article X,
Entitled "Historic Preservation", Division 3, entitled "Issuance Of Certificate Of
Appropriateness/Certificate To Dig/Certificate Of Appropriateness For Demolition" of the Land
Development Regulations of the Code of the City of Miami Beach, Florida is hereby amended as
follows:
Sec. 118-562. Application.
( a) An application for a certificate of appropriateness may be filed with the historic preservation
board at the same time or in advance of the submission of an application for a building permit.
Copies of all filed applications shall be made available for inspection by the general public.
(b) All applications involving demolition, new building construction, alteration, rehabilitation,
renovation, restoration or any other physical modification of any building, structure, improvement,
landscape feature, public interior or site individually designated in accordance with sections 118-591,
118-592 and 118-593, or located within an historic district shall be on a form provided by the
planning department and shall include such information and attached exhibits as the board and the
planning department determine are needed to allow for complete evaluation of the proposed
demolition, construction and other physical improvements, alterations or modifications including,
but not limited to, the following:
(1) Written description of proposed action.
(2) Survey.
(3) Complete site plan.
( 4) Materials containing detailed data as to architectural elevations and plans showing proposed
changes and existing conditions to be preserved.
(5) Preliminary plans showing new construction in cases of demolition.
(6) A financial feasibility study of the new project in cases of demolition and a feasibility study
for an existing structure which addresses the possibility of substantially renovating or operating the
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existing historic stru cture. Consideration of parkin g needs an d dem an ds shall be addr essed w ithin th e
fe asibilit y study, as w ell as altern ative m ethods of pro viding parking. The study w ill also determ ine
w hether the retention of the building w ould deny th e own er econom ically viable use of the pro perty.
(7) An hi storic resour ces report, contain ing all available data an d historic docum entation
regar ding th e building, site or fe atur e.
(8) An y application w hich in volves substan tial stru ctur al altera tions to or the substan tial or fu ll
dem olition of an y building, stru ctur e, im pro vem ent, signi fican t lan dscape fe atu re, public interior or
site individually design ated in accordan ce w ith sections 118-591, 118-592 an d 118-593, or located
w ithin an hi storic district, w ith the exception of non substantial exterior stru ctur al rep air s, altera tions
an d im pro vem ents (as m ay be m ore specifically defined by the boar d in its by-law s an d application
pro cedur es), shall be required to incl ude a stru ctu ra l evaluation an d corr ective action rep ort prep ar ed
by a pro fe ssional (stru ctur al) engineer, licensed in the state as a part of th e application at tim e of
subm ission. For non substan tial exterior stru ctur al repairs, altera tions an d im provem ents ( as m ay be
m ore specifically defined by th e boar d in its by-law s an d application pro cedur es), a sign ed an d sealed
engineering dr aw ing shall be required. The stru ctur al evaluation and corr ective action report shall
incl ude, but not be lim ited to, th e fo llow ing:
a. Review an d an alysis of stru ctur al conditions, based upon the engi neer's direct on-site
inspection_ an d an alysis of the stru ctur al condition of the subject pro perty, as w ell as an y an d all
ear lier stru ctur al records an d draw ings, as m ay be available. Thi s shall incl ude docum enta tion, in the
fo rm of photogr aphs, plan s, elevations, an d wri tten descriptions, of an y an d all ar eas, portions, or
elem ents of the building or stru ctur e that show s existin g or potential stru ctu ral pro blem s or concern s,
in fu ll accordan ce w ith the requirem ents of the building offi cial.
b. Results of testing an d an alysis of stru ctura l m aterials an d concrete core sam ples, tak en at a
sufficient num ber ofl ocations in an d about the bui lding, inclusive ofb ut not lim ited to fo un dations,
column s, beam s, w alls, floors an d ro ofs . The report shall pro fe ssionally an alyze an d evaluate th e
com pressive strengt h, chloride content, an d overa ll stru ctur al condition of each an d every core
sam ple and assess the condition of all other stru ctur al elem ents or system s in the building or
stru ctu re, regar dless of m aterial, that m ay be of stru ctur al concern .
c. Pro posed corr ective m easur es an d m onitoring of the w ork, incl udin g detailed plan s,
elevations, sections an d specifications, as w ell as wri tten descriptions of an y an d all stru ctur al
corr ective m eas ur es that w ill be un dertak en fo r an y an d all areas , portions, or elem ents of th e
building or stru ctur e that m ay be of stru ctural concern . These docum ents shall contain suffi cient
supporting evidence to establish that the corr ective m easur es pro posed w ill be adequate to restore
an d preserv e th e stru ctura l integri ty of the identified ar eas, portions , or elem ents to be preserv ed,
incl uding a w ritten an d detailed description of the pro cess by w hich the pro posed corr ective w ork
w ill pro ceed, as w ell as the sequencing of the w ork. Finally, a wri tten verification shall be incl uded
stating th at all stru ctur al conditions thr oughout the building or stru cture shall be cl osely m oni tored
by a special inspector, appro ved by the building depart m ent an d em ployed by the applican t, during
th e cour se of all dem olition, new constru ction, and bracing and shoring w ork. This pro vision is
required in order to im m ediately identify any an d all adverse chan ges in the stru ctur al integri ty or
stability of the subject building or stru ctu re duri ng th e course of the w ork, incl usive of architectura l
fe atures. The special inspector shall pro vide expeditious direction to the contractor specific to how
the observ ed adverse chan ges shall be quickly and pro perly stabilized and perm an ently corr ected.
Thi s info rm ation shall be imm ediately conveyed to the city 's planni ng an d building departm ents fo r
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their review an d an y necessary actions .
d. Pro posed m ethodology and pro cess fo r dem olition, incl uding detailed plan s, elevations,
sections an d specifi cations, as w ell as a wri tten descri ption of an y an d all tem porary shori ng an d
bra cing m easur es an d all m easur es required to pro tect the safe ty of the public an d w orkers. These
m eas ur es shall be fu lly im plem ented an d in place pri or to an d during the cour se of an y dem olition
an d constru ction activity on the subject pro pert y. T he docum ents shall contain suffi ci ent supportin g
evidence to establish that the corr ective m easur es pro posed w ill be adequate to restore an d preserv e
the stru ctur al integri ty of the identifi ed areas , port ions, an d elem ents, in cl udin g a wri tten an d detailed
descri ption of the proposed pro cess an d sequencin g of dem olition, as w ell as a detai led descri ption of
the dem olition m ethods to be utilized. Finally, a wri tten veri fi cation shall be incl uded stating th at all
w ork as descri bed above shall be cl osely m onitored duri ng the cour se of w ork by a special inspector
approved by the building depart m ent. Thi s inspector shall be em ployed by th e applicant.
e. A sign ed an d sealed cert ifi cation that the stru ctur al integri ty an d stability of the subject
building(s)/stru cture(s), an d its ar chitectur al fe atur es, shall not be com pro m ised in an y w ay duri ng
the cour se of an y an d all pro posed w ork on the subject site.
(9) The Historic Preservation Board. for applications involving the full demolition of any
contributing building. structure or site individually designated in accordance with sections 118-591.
118-592and118-593, or located within an historic district, may request the City to retain a
licensed independent structural engineer. with expertise in historic structures. to perform an
independent evaluation of the structure proposed to be demolished. The City Commission. in its
sole discretion. may review the request and appropriate funds to cover the costs associated
with the retention of such engineer. The Planning Department shall select the independent
structural engineer from a qualified list it maintains. Ifit is determined by the independent structural
engineer that the building. structure or site can be retained. preserved or restored. and a certificate
of appropriateness is issued based upon such determination. then the property owner shall re-
imburse the City for all costs it paid to such engineer. and the property may be liened to assure
payment. If it is determined by the independent structural engineer that the building. structure or site
cannot be retained. preserved or restored, then the City shall bear the responsibility of all costs
incurred by such independent structural engineer.
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. The sections of this ordinance may be renumbered or
relettered to accomplish such intention, and the word "ordinance" may be changed to "section",
"article", or other appropriate word.
SECTION 4. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 5. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder
shall not be affected by such invalidity.
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SE C T IO N 6. E F FE C T IVE D A T E .
This Ordinance shall take effect ten days follow·
PASSED AND ADOPTED this 19th day o) _Oe}ekrt I ! 2005.
"tal test cry ERR
Robert Parcher
First Reading:
Second Readin
Verified by: yo hob
David Dermer
APPROVED AS TO
FORM & LANGUAGE ze; .,,#gué m g 0lolos
Date
Underscore d notes new language
Double Bold Underscore denotes changes pursuant to and following First Reading Approval
10/3/2005
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C IT Y O F MI AM I BE A CH
C O M M IS S IO N IT E M · S U M M A R Y
C o n d e n s e d T itle :
Ordinance amending the Historic Preservation Section pertaining to requirements for new construction on
those properties where a contributing building is demolished and requirements for evaluations by
independent structural engineers.
Issue:
Amendment to the Historic Preservation Section of the City Code to clarify procedures and requirements
for new construction on those properties where a contributing building is demolished and to implement new
requirements for evaluations bv independent structural enaineers.
Item Summa /Recommendation:
On September 8, 2005, the City Commission approved the proposed Ordinance on First Reading, subject
to minor modifications regarding the allocation of funding for an independent engineer. The Administration
recommends that the Ma or and Ci Commission ado t the ro osed Ordinance.
Advisory Board Recommendation:
The Historic Preservation Board reviewed the Ordinance on March 8, 2005 and recommended approval.
The Planning Board reviewed the proposed Ordinance on March 29, 2005, recommended certain
modifications and continued the item to the April 26, 2005 meeting. On April 26, 2005 the Planning Board
transmitted the proposed Ordinance to the City Commission with a favorable recommendation. On July 11,
2005, the Land Use and Development Committee reviewed the proposed Ordinance and recommended
approval.
Financial Information:
Source of Amount Account Approved
Funds: 1 !2
3
4
Finance Dept. Total
Cit Clerk's Office Le islative Trackin
Jorge Gomez or Thomas Mooney
Si in-Offs:
City Manager
rf E N D A\2 00 5\O ct19 0 5I eg u l r\R E C O N S T R U T IO N A N D E N G IN E E R -S U M O C T C C .do c
AGENDA rTEM RSB -----
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C I T Y O F M I A M I B E A C H
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\lci.miami-beach.fl.us
COMMISSION MEMORANDUM
To:
From:
Subject:
Mayor David Dermer and
Members ~The City~Commission
Jorge M. Gonzalez
City Manager
Reconstruction and Engineer Requirements
Date: October 19, 2005
SECOND READING
PUBLIC HEARING
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF THE CITY OF MIAMI BEACH, BY
AMENDING CHAPTER 118, ENTITLED "ADMINISTRATION AND REVIEW
PROCEDURES," ARTICLE X, ENTITLED "HISTORIC PRESERVATION,"
DIVISION 1, ENTITLED "GENERALLY," BY AMENDING SECTION 118-
503 TO MODIFY THE REQUIREMENTS FOR AN AFTER-THE-FACT
CERTIFICATE OF APPROPRIATENESS; BY AMENDING CHAPTER 118,
ENTITLED "ADMINISTRATION AND REVIEW PROCEDURES," ARTICLE
X, ENTITLED "HISTORIC PRESERVATION," DIVISION 3, ENTITLED
"ISSUANCE OF CERTIFICATE OF APPROPRIATENESS/CERTIFICATE
TO DIG/CERTIFICATE OF APPROPRIATENESS FOR DEMOLITION", BY
AMENDING SECTION 118-562 TO ADD A REQUIREMENT FOR AN
INDEPENDENT STRUCTURAL EVALUATION FOR DEMOLITION
REQUESTS; PROVIDING FOR REPEALER, CODIFICATION,
SEVERABILITY AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
Adopt the proposed Ordinance.
ANALYSIS
Recently, the City Commission adopted, on First Reading, modifications to the Non-
Conforming Structures section of the City Code, which was the result of the
recommendations of the Mayor's Blue Ribbon Panel on the Structural Integrity of Historic
Buildings. This ordinance, however, did not address "conforming" buildings in the City's
historic districts.
In order to address any "conforming" buildings which may be required to be demolished in
the future, by order of the Building Official, the same policy clause that was developed for
the "non-conforming structures" section of the City Code has been proposed for
"conforming" buildings. Specifically, a section has been added creating a policy that any
contributing structure demolished shall be fully reconstructed without any additional floor
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October 19, 2005
Commission Memorandum
Ordinance - Reconstruction and Engineer Requirements
Page 2of 3
area. The Historic Preservation Board will have the latitude, on a case-by-case basis, to
require the reconstruction of any structure deemed to be structurally unsafe.
By limiting the amount of floor area that can be added to a contributing structure, it is
anticipated that this change will encourage the preservation of structures by creating an
incentive for their preservation. It will also put all current and future property owners on
notice that existing structures in local historic districts, that are designated contributing,
would have to be reconstructed if they are found to be structurally unsafe.
In addition to this change, new language has been added requiring that an independent
licensed structural engineer with expertise in historic structures, be retained to evaluate any
application which involves the full demolition of any contributing building located within an
historic district, inclusive of an application for an after-the-fact certificate of appropriateness
for demolition. The independent engineer shall be chosen from a list approved pursuant to
an RFQ, and the evaluation of the engineer shall take into consideration any potential
methods for retaining and preserving the subject structure. This portion of the proposed
ordinance amendment was referred by the City Commission to the Planning Board in order
to address the potential conflicts associated with a structural evaluation of an historic
structure being performed by an engineer retained and paid for by the property owner.
The Ordinance was reviewed by the Historic Preservation Board on March 8, 2005, which
recommended approval. The Planning Board reviewed the revised Ordinance on March
29, 2005 and continued the item to the April 26, 2005 meeting. The Planning Board had
specific concerns pertaining to the inclusion of parking impact fees in areas outside of local
historic districts, as well as the proposed mandatory requirements for new construction in
the event a contributing building is demolished. In order to address these concerns the
following modifications to the Ordinance were made:
1. The policy for buildings demolished by an Order of the Building Official or without a
Certificate of Appropriateness from the Historic Preservation Board has been
modified to require that any new structure be limited to the height, massing and
square footage of the original structure (not to exceed the height and FAR
requirements of the Code) and that the architectural style of the new structure be
subject to the review and approval of the Historic Preservation Board.
2. Specific criteria was established that allows the Historic Preservation Board to rebut
the aforementioned policy.
3. The requirements for an independent structural engineer were modified so that such
engineer would act on behalf of the Historic Preservation Board, and not the
property owner. Also, such engineer would be chosen by the Board, from a
qualified list to be maintained by the Planning Department.
On April 26, 2005 the Planning Board transmitted the Ordinance to the City Commission
with a favorable recommendation. On June 8, 2005 the City Commission referred the
matter to the Land Use and Development Committee for further study.
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October 19, 2005
Commission Memorandum .
Ordinance -- Reconstruction and Engineer Requirements
Page 3of 3
On July 11, 2005, the Land Use and Development Committee endorsed the proposed
ordinance, with the proviso that the structure of the ordinance be simplified and made
easier to read. In order to address this requirement, the Administration has redrafted the
proposed Ordinance in a manner that reorganizes the language.
The most significant change was introducing a new portion of the Ordinance pertaining to
the new City policy on the reconstruction requirements for lots on which a contributing
structure was located and the ability of the Historic Preservation Board to waive such
policy. This section of the proposed Ordinance amendment was relocated from the
proposed Ordinance pertaining to "Non-Conforming Structures".
On September 8, 2005, the City Commission approved the subject Ordinance on First
Reading. The Commission expressed some concern with regard to the funding of the
independent engineer and a strong desire to assure fiscal control. In this regard, new
language has been added to the proposed Ordinance requiring that the Commission, at
their discretion, ratify any and all services of an independent engineer requested by the
Historic Preservation Board.
Additionally, the City Commission must also allocate the appropriate funds, to cover the
costs associated with the retention of an independent engineer, prior to the
commencement of any work. Finally, instead of the engineer being chosen by the Historic
Preservation Board, the Commission requested that responsibility be transferred to the
Planning Department. The selection would come from a qualified list of structural
engineers approved pursuant to an RFQ, and maintained by the Planning Department.
FISCAL IMPACT
The proposed Ordinance is expected to have a fiscal impact under certain circumstances.
If the independent structural engineer determines that the structure cannot be retained,
preserved or restored, then the City bears responsibility of all costs incurred by the
engineer. This is estimated to cost $25,000 per analysis.
In order to assure fiscal control, the Ordinance has been modified to require that the City
Commission have final authority over the retention of an independent engineer, as well as
the allocation of funds.
CONCLUSION
Adopt the proposed Ordinance.
Pursuant to Section 118-164(4) of the City Code, an affirmative vote of five-sevenths shall
be necessary in order to enact any amendments to the Land Development Regulations.
JMG/TH/JGG/TRM
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C ITY O F M IA M I B EA C H-
N O T IC E O F P U B LI C H E A R IN G
N O TI C E IS H ER EBY giv en that public hearings wi ll be held by the Mayor and
City Com mission of be City of Miam i Beach , Florida, in the Commi ssion
Ch amber s, 3rd floor, City Hall, 1700 Conven tion Center Drive, Miami Beach,
Florida, on W ednesday, October 19, 200 5, to consider the following:
10:15 a.m. An Ordinance Amending Miami Beach City Code Ch apt er 2, Article VI, Division
3, By Creating Section 2-373 Thereof, Entitled "Requirement For City
Contractors To Provide Equal Benefits For Dome stic Partners," By Mandating
That City Contractors Provide Equal Benefits For Domestic Partners.
Inquiries may be directed to the Procurement Division at (305) 673-7490.
10:20 a.m.
A Resolution Setting A First Public Hearing To Consider Extending The
Approval Of The Miami Beach Convention Center As A Venue For Conventions,
Expositions Or Events Involving Adult Materials, Pursuant To Th e Provisions Of
Section 847.0134, Florida Statutes; and Referring The Matter To The Land Use
And Development Committee.
Inquiries may be directed to the Planning Department at (305) 673-7550.
10:30a.m.
An Ordinance Amending The Land Development Regulations Of The Code Of .
The City Of Miami Beach, By Amending Ch ap t er 118, "Administration And
Review Procedures," Article X, "Historic Preservation," Division 1, "Generally,"
By Amending Section 118-503 To Modify Th e Requirements For An After-The-
Fact Certificate Of Appropriateness; By Amending Chapter 118,
"Administration And Review Procedures," Article X, "Historic Preservation,"
Division 3, "Issuance Of Certificate Of Appropriateness/Certificate To Dig/
Certificate Of App ropriaten ess For Dem olition," By Am ending Section 118-562
To Add A Requirement For An Independent Structural Evaluation For
Demolition Requests.
Inquiries may be directed to the Planning Department at (305) 673-7550.
10:35a.m.
An Ordinance Amending The Land Development Regulations Of Th e Code Of
Th e City Of Miami Beach, By Amending Ch ap ter 138, "Signs," By Amending
Article I, "In General," By Am en ding Se ction 138-11 To Clarify Th e
Requirements And Procedures For The Removal Of Signs; Providing For
Inclusion In Th e City Code.
Inquiries may be directed to the Planning Department at (305) 673-7550.
INTERESTED PARTIES are invited to appear at this meeting, or be represented
by an agent, or to express their views in writing addressed to the City
Com mi ssion , c/o the City Cl erk, 1700 Conven tion Center Drive, 1st Floor, City
Hall, Miami Beach, Florida 33139. Copies of these ordinan ces are available for
public insp ection during norm al business hours in the City Clerk's Offi ce, 1700
Convention Center Drive, 1st Floor, City Hall, and Miami Beach, Florida 33139.
This meeting may be continued and under such circumstances additional legal
notice would not be provided.
Robert E. Parcher, City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: if a
person dec ides to appeal any decision made by the City Commission with respect to
any matter considered at its meeting or its hearing,such person must ensure that a
verbatim record of the proceedings is made, which record includes the testimony and
evidence upon which the appeal is to be based. This notice does not constitute
consent by the City for the introduction or admission of otherwise Inadmissible or
irrelevant evidence, nor does it authorizechallenges or appeals not otherwise allowed by law.
To request this material in accessible form at, sign language interpreters, information on
access for person s with disabilities, and/or any accommo dation to review any
document or participate in any city-sponsored proceeding. please contact (305) 604-
2489 (voice), {305)673-7218/7TV fie days in advance to initiate your request TT Y
users may also ca! 711 {Florida Helav Serice).
Ad #331
o ...J t € I
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O R D IN A N C E N O . -------
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF- MIAMI BEACH, FLORIDA, AMENDING CHAPTER 118 OF THE
CODE OF THE CITY OF MIAMI BEACH, ENTITLED "ADMINISTRATION
AND REVIEW PROCEDURES," ARTICLE X, ENTITLED "HISTORIC
PRESERVATION," DIVISION 1, ENTITLED "GENERALLY," BY
AMENDING SECTION 118-503 THEREOF, ENTITLED "SCOPE,
POLICIES, AND EXEMPTIONS," TO CORRECT A SCRIVENER'S
ERROR; AND PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, on October 19, 2005, the Mayor and City Commission of the City of Miami
Beach adopted Ordinance No. 2005-3495, amending Section 118-503 of the City Code to expand
and enhance the procedure of the Historic Preservation Board regarding after-the-fact Certificates
of Appropriateness; and
WHEREAS, Ordinance No. 2005-3495 created subsection 118-503(b) to modify the
requirements for an after-the-fact certificate of appropriateness; and
WHEREAS, additional edits were made after First Reading, as denoted by double-
underline additions and double-strikethrough deletions throughout Ordinance No. 2005-3495, but,
inadvertently, paragraph references to subsection 118-503( c), governing exemptions, were not
updated and a few intended words were omitted; and
WHEREAS, a correction to the scrivener's error is required for uniformity and consistency
throughout Section 118-503; and
WHEREAS, no substantive change to the Ordinance is intended.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Section 118-503, entitled "Scope, policies, and exemptions," of Article X, of
Chap ter 118, of the City Code of the City of Miami Beach 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.
(a) Scope. Unless expressly exempted by subsection (b) (c) of this section, no building permits
shall be issued for new construction, demolition, alteration, rehabilitation, signage or any
other physical modification of any building, structure, improvement, landscape feature, public
interior or site individually designated in accordance with sections 118-591, 118-592 and
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118-593, or located within an historic district, nor shall any construction, demolition,
alteration, rehabilitation, signage or any other exterior or public interior physical modification,
w h e ther temporary or permanent, without a permit, be undertaken, without the prior issuance
of a ce rt ifi c a te of appropriateness or certificate to dig by the historic preservation board, or
th e pla n n in g dire cto r o r his de sig n e e , in acco rd a n c e w ith th e procedures specified in this
se c tio n . F o r pu rpo se s of th is art icl e , "a lte ratio n " o r "m o d ifi ca tio n " sh a ll be de fi n e d as an y
ch a n g e aff e ctin g the exte rn a l a p p e a ra n c e a n d in te rn a l struc tu ra l syste m in c lu d in g co lu m n s ,
be a m s, lo a d be a rin g w a lls a n d flo o r pla te s an d ro o f pla te s of a structu re or other features of
th e site in c lu d in g , bu t no t lim ite d to , la n d sca p in g a n d relationship to other structures, by
ad d itio n s , re co n struc tio n , re m o d e lin g , o r m a in te n a n c e in v o lv in g a ch a n g e in co lo r, fo rm ,
te x tu re , sig n a g e o r m a te ria ls , o r a n y su c h ch a n g e s in the a p p e a ra n c e o f pu b lic in te rio r
sp a c e s . T h e fo re g o in g sh a ll e x clu d e the pla ce m e n t o f o b je cts in or o n the ex te rio r o r pu b lic
in te rio r of a structu re o r site , no t m a te ria lly aff e ctin g its a p p e a ra n c e or arch ite c tu ra l in te g rity .
(b ) Policies.
(1) After-the-fact certificates of appropriateness for demolition. In the ev e n t a n y de m o litio n
as de sc rib e d a b o v e o r in su b se ctio n (b ) (c) of th is se ctio n sh o u ld ta k e pla c e prio r to
histo ric pre se rv a tio n bo a rd re v ie w , the de m o litio n o rde r sh a ll be co n d itio n e d to re q u ire
th e pro p e rt y ow ne r to fil e an "a ft e r-th e -fa ct" a p p lic a tio n fo r 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
pro p e rt y ow ne r sh a ll a ls o be re q u ire d , to th e g re a te st ex te n t po ssib le , to retain, preserve
a n d re sto re a n y demolished feature of a structure until such time as the board reviews
a n d a cts o n th e "a ft e r-the -fa ct" a p p lic atio n . In th e e v e n t th e pro p e rt y owner fails to file
a n "a fte r-th e -fac t" a p p lic a tio n fo r a ce rt ific a te of a p p ro p ria te ne ss fo r demolition to the
histo ric pre se rv a tion 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
o cc u p a n c y of th e su b je ct site , w h ic hever is appropriate. Additionally, this article may be
e n fo rce d , an d vio la tio n s m a y be pu n ish e d a s pro v id ed in section 114-8 of this Code; or
by e nfo rce m e n t pro c e d u re s as se t fo rt h in the C h a rt e r a n d pe n a ltie s a s pro v id e d in
se cti on 1-14 of th is C o d e .
(2 ) Replacement of existing structures. T he po lic y of th e C ity of M ia m i B e a c h sh a ll be a
pre su m p tio n th a t a co n trib u tin g bu ild in g de m o lis h e d w ith o u t ob ta in in g a ce rt ifi ca te of
a p p ro p ria te n e ss fr o m the histo ric pre se rv atio n bo a rd , sh a ll on ly be re p la c e d w ith a ne w
stru ctu re tha t in c o rp o rate s the sa m e he ig h t, m a ssin g a n d sq u a re fo o ta g e of th e pre v io u s
struc tu re o n site , no t to ex ce e d the flo o r a re a ra tio (F A R ) of the de m o lis h e d struc ture .
a n d no t to exce e d th e m a x im u m FA R an d he ig h t pe rm itt e d un d e r th e C ity C o d e , w ith
no ad d itio n a l sq u a re fo o ta g e ad d e d . T h is pre s u m p tio n sh a ll be a p p lic a b le in the ev e n t
a bu ild in g pe rm it fo r ne w co n struc tio n o r fo r re p a ir o r re h a b ilitatio n is is su e d , a n d
de m o litio n o cc u rs fo r a n y re a so n , in c lu d in g , bu t no t lim ite d to , an o rd e r o f th e bu ild in g
off ic ia l o r the co u n ty un sa fe stru cture s bo a rd . T h is pre su m p tio n sh a ll a ls o be a p p lic a b le
to a n y re q u e st fo r a n "a ft e r- the -fact" ce rt ifi c a te of a p p ro p ria te n e ss . T h is pre su m p tio n
m a y be re b u tt e d , a n d the histo ric pre se rva tio n bo a rd m a y a llo w fo r the ad d itio n of m o re
sq u a re fo o ta g e , w he re a p p ro p ria te , no t to e x ce e d th e m a x im u m pe rm itte d un d e r the
C ity C o d e , if it is esta b lis h e d to the sa tisfa ctio n o f th e histo ric pre se rv a tio n bo a rd tha t
th e fo llo w in g crite ria ha v e be e n sa tisfie d :
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a . T he pro p o se d ne w structu re is co n siste n t w ith the co n te x t a n d ch a ra c te r of th e
im m e d ia te a re a ; a n d
b. T he pro p e rt y ow n e r m a d e a re a so n a b le eff o rt to re g u la rly in sp e ct a n d m a in ta in th e
structu re fre e of structu ra l de fici e n cie s a n d in co m p lia n c e w ith th e m in im u m
m a in te n a n ce sta n d a rds of th is C o d e .
(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.
( c) Exemptions. The following permits are exempt from the regulations of this section subsection
(a)
(1) AII permits for plumbing, heating, air conditioning, elevators, fire alarms and
extinguishing equipment, and all other mechanical and electrical equipment not located
on exteriors or within public interior spaces, and not visible from the public right-of-way.
(2) Any permit necessary for compliance with a lawful order of the building official, county
unsafe structures board, fire marshal, or public works director when issuance of such
permit on an immediate basis is necessary for the public health or safety or to prevent
injury to life, limb or property. In the event that compliance includes full or partial
demolition of any building, structure, improvement, landscape feature, public interior or
site individually designated in accordance with sections 118-591, 118-592 and 118-593,
or located within an historic district an emergency meeting of the historic preservation
board shall be called prior to the demolition being authorized, unless the work is of an
emergency nature and must be done before a meeting could be convened. The historic
preservation board may offer alternative suggestions regarding the need for manner
and scope of demolition; these suggestions shall be taken into consideration by the
official issuing the final determination regarding demolition. However, the final
determination regarding demolition shall be made by the official issuing the order. In the
event that the historic preservation board does not hold the meeting prior to the
scheduled demolition, the demolition may take place as scheduled.
(3) Any permit issued for an existing structure in a designated historic district which has
been specifically excluded from the district.
SECTION 2. 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. The sections of this Ordinance may be renumbered or re-
lettered to accomplish such intention, and, the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
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SECTIO N 3. REPEA LER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 4. SEVERABILITY.
If a n y se ctio n , su b se ctio n, clause or provision of this Ordinance is held invalid, the
re m a in d e r sh a ll no t be aff e cte d by su c h in v a lid ity .
SECTION 5. EFFECTIVE DATE.
T h is O rd in a n c e sh a ll ta ke eff e ct te n da y s fo llo w in g ad o p tio n .
PASSED AND ADOPTED thi s d ay of,2 0 2 2 .
D a n G e lb e r, M a y o r
A T T E S T :
R a fae l E . G ra n a d o , C ity C le rk
(S p o n s o re d by M a y o r D a n G e lb e r)
U n d e rlin e de n o te s a d d itio n s
S trik eth ro u g h de n o te s de le tio n s
D o u b le U n d e rlin e de n o te s ad d itio n s m a d e at F irst R e a d in g
D o u b le S trik et h ro u g h den o te s del e tion s m a d e at Fi rst R e a di ng
APPROVED AS TO
FOR M & LANGUAGE
& FOR EXECUTION
za«a.
City Attorney Date 2@
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1 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
2
CIRCUIT CIVIL DIVISION
3
CASE NO. 2019-003653-CA-01
4
5 CITY OF MIAMI BEACH, FLORIDA (THE),
6 Plaintiff(s),
7 -vs-
8
DEAUVILLE ASSOCIATES, LLC, et al.,
9
Defendant(s).
10 ________________________________________/
11
- - -
12
13 PROCEEDINGS: HEARING
14 BEFORE:HONORABLE HANZMAN
15 DATE:Friday, March 4, 2022
16 TIME:3:00 p.m. - 4:33 p.m.
17 PLACE:MIAMI-DADE COUNTY COURTHOUSE
73 West Flagler Street
18 Miami, Florida 33130
19
STENOGRAPHICALLY
20 REPORTED BY: VANESSA OBAS, RPR
21
22
23
24
25
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Exhibit B
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1 A P P E A R A N C E S:
2
JEFFREY CLARK SCHNEIDER, ESQUIRE
3 OF: LEVINE KELLOGG LEHMAN SCHNEIDER + GROSSMAN LL
201 S Biscayne Boulevard
4 Floor 22
Miami, Florida 33131
5 jcs@lklsg.com
6 -and-
7
AMANDA LOUISE QUIRKE HAND, ESQUIRE
8 OF: AQH LAW
1395 Brickell Avenue
9 Suite 800
Miami, Florida 33131
10 ahand@aqhlaw.com
11 -and-
12
DOMINGO GAMBOA DE LA FUENTE, JR., ESQUIRE
13 OF: LEHTINEN SCHULTZ PLLC
1200 Brickell Avenue
14 Suite 507
Miami, Florida 33131
15 bdelafuente@lehtinen-schultz.com
APPEARING ON BEHALF OF THE PLAINTIFF(s)
16
17 MATIAS RAFAEL DORTA, ESQUIRE
GONZALO DORTA, ESQUIRE
18 OF: DORTA LAW
334 Minorca Avenue
19 Coral Gables, Florida 33134
mrd@dortalaw.com
20 APPEARING ON BEHALF OF THE DEFENDANT(s)
21
ALSO PRESENT:
22
23 STEVEN ROTHSTEIN, DEPUTY CITY ATTORNEY
JOSE CHANFRAU
24 DAVID WINKER, ESQUIRE
25 - - -
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1 P R O C E E D I N G S
2 *********
3 THE COURT: Please be seated.
4 All right. Good afternoon, everybody. The
5 Court is calling the City of Miami Beach versus
6 Deauville, Case Number 2019-3653.
7 Let me have appearances, please.
8 MR. SCHNEIDER: Good afternoon, Your Honor.
9 Jeff Schneider, outside counsel for the City of
10 Miami Beach. With me is Amanda Hand, Bob de la
11 Fuente, and Steven Rothstein, deputy city attorney.
12 MR. DORTA: Good afternoon, Your Honor. On
13 behalf of the defendants, Matias Dorta and Gonzalo
14 Dorta and Mr. Jose Chanfrau.
15 THE COURT: Okay, everybody, have a seat.
16 Oh, excuse me. Mr. Winker?
17 MR. WINKER: Yes, sir. David Winker on behalf
18 of the intervener on the assigned preservation --
19 THE COURT: Proposed intervener.
20 MR. WINKER: Yes, sir.
21 THE COURT: Because my recollection is I have
22 not granted any motion to intervene. Correct?
23 MR. WINKER: That is correct.
24 THE COURT: Okay. Very good.
25 So, Mr. Schneider --
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1 MR. SCHNEIDER: Yes, Your Honor.
2 THE COURT: -- the City of Miami Beach is
3 trying this Court's patience, and I'm not really
4 interested in having another Surfside case because
5 the Beatles played the Deauville in 1964.
6 Now, I ordered very clearly that there be a
7 demolition permit applied for, that the City process
8 it in the ordinary course, and the building
9 inspector apparently went out there and concurred
10 with the Deauville structural engineer that this is
11 a dangerous structure that needs to be demolished.
12 Now, I don't know what the commission's doing
13 here, but you'd better explain to me why I'm still
14 hearing this issue over and over and over again
15 because, like I said, I am quickly losing patience
16 with this municipality.
17 MR. SCHNEIDER: Your Honor, I understand.
18 THE COURT: Understand?
19 MR. SCHNEIDER: I do.
20 THE COURT: I hope you do.
21 MR. SCHNEIDER: I do.
22 THE COURT: Okay.
23 MR. SCHNEIDER: Your Honor's, the Court's
24 October 5th order required the defendants to submit
25 an application. It took them months to do that. It
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1 took two motions to appoint a receiver on our part
2 for them to finally submit a completed application.
3 They have, and now we are now processing it.
4 And this is really not that complicated. There
5 are two statutory --
6 THE COURT: I don't view it as complicated at
7 all. I view it as a dangerous structure, as
8 determined by your own building official --
9 MR. SCHNEIDER: The building official --
10 THE COURT: -- and the City's unwillingness to
11 simply grant a demolition permit and let this unsafe
12 structure be demolished.
13 So why is it more complicated than that?
14 MR. SCHNEIDER: Your Honor, it is going through
15 the process. The building official issued what is
16 called a demolition order. That is not a demolition
17 permit.
18 Under 118-562(b)(8), which we've cited in our
19 papers, the historic preservation board is entitled
20 to request the City to conduct an independent
21 evaluation using a structural engineer with
22 expertise --
23 THE COURT: And where was the historic
24 preservation board all the time I have been handling
25 this case and prior to the building official's
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1 inspection? Because that is discretionary, as I
2 read the statute.
3 And I would like to also know what is an expert
4 with expertise in historic structures? Are historic
5 structures built out of materials different than any
6 other structure? Do they have exceptions to when
7 they may or may not be dangerous that other
8 structures don't simply because somebody considers
9 them to be historic?
10 MR. SCHNEIDER: Your Honor, this is an historic
11 structure, and it is in an historic district. And
12 under 118-562, the HPB, the historic preservation
13 board, has the right to request the City to conduct
14 the independent evaluation. They did that on
15 January 11th, and that request was approved by the
16 City on January 20th.
17 We have made --
18 THE COURT: Coincidentally, the day after the
19 building inspector issued her report saying that
20 this structure was unsafe and had to be demolished,
21 coincidentally, the day after --
22 MR. SCHNEIDER: It is not --
23 THE COURT: -- the City acts on this request
24 from the historic preservation board --
25 MR. SCHNEIDER: It is not --
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1 THE COURT: -- to send somebody else out for
2 another opinion. That's a mere matter of
3 coincidence?
4 MR. SCHNEIDER: It is not a coincidence at all.
5 The building official's order was based on a
6 structural assessment that was received from the
7 defendants. She went in and did what's called --
8 THE COURT: That's not true, either, Mr.
9 Schneider. She went in with a whole team apparently
10 and did her own independent inspection with three or
11 four other people that she assembled.
12 MR. SCHNEIDER: She did a two-hour peer review,
13 Your Honor. That's what she did. It was done
14 pursuant to an order from this Court, and this
15 Court's order says "The City of Miami Beach building
16 official will inspect the building on January 14 to
17 verify the conditions and the structural condition
18 assessment."
19 THE COURT: And did I limit her inspection in
20 any way, shape, or form, or was she permitted to go
21 and conduct any inspection that she deemed necessary
22 in order to reach an opinion on the safety of this
23 structure? Which was it?
24 MR. SCHNEIDER: It was a limited inspection.
25 The Court's order --
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1 THE COURT: Limited by who?
2 MR. SCHNEIDER: Limited by this Court. This
3 Court's order specifically -- Your Honor, I have a
4 copy, if I may hand --
5 THE COURT: Where did my order limit her
6 inspection? Give me the language.
7 MR. SCHNEIDER: "The City of Miami Beach
8 building official will inspect the building on
9 January 14, 2022, to verify the conditions in the
10 structural condition assessment submitted to the
11 City by Defendants."
12 THE COURT: Maybe I'm not -- maybe I'm missing
13 something. Where in that language that you just
14 read did I in any way tie the hands of the building
15 inspector to do whatever she deemed was necessary in
16 order to, quote, verify, close quote, the condition
17 of that structure?
18 MR. SCHNEIDER: Your Honor, that is completely
19 different from a 118-562 request by the historical
20 preservation board. The building official merely
21 went in and verified the conditions of the
22 structural condition assessment. It was a two-hour
23 peer review.
24 She is not -- she does not have expertise in
25 historic structure. The historical preservation
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1 board had not even made the request yet.
2 THE COURT: I'm sorry. So you're telling me
3 your own -- the City is here telling this Court that
4 its own building inspector did not have the
5 requisite expertise to determine whether or not this
6 is an unsafe structure? That's what you're telling
7 me?
8 MR. SCHNEIDER: Your Honor, what she did was
9 verify the conditions of the structural condition
10 assessment. She did exactly what this --
11 THE COURT: No. She verified the condition of
12 the building as reported by the structural
13 assessment report.
14 MR. SCHNEIDER: She received a report from the
15 defendants. She did a two-hour peer review and went
16 in and confirmed what she could in a two-hour
17 period. That is not an independent evaluation by a
18 structural engineer with experience and expertise in
19 historical structures.
20 THE COURT: Uh-huh.
21 MR. SCHNEIDER: That request had not even been
22 made yet.
23 Your Honor, we -- trust me. We understand the
24 Court's order.
25 THE COURT: I'm not trusting you, and I'm not
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1 trusting your client.
2 MR. SCHNEIDER: We are processing --
3 THE COURT: My orders are not being complied
4 with, and I don't know who's playing games here or
5 what's going on, but it seems to me that you're
6 trying to backtrack from your own building
7 official's clear and unequivocal assessment that
8 this is a dangerous structure that needs to come
9 down.
10 MR. SCHNEIDER: She never said this was a
11 dangerous structure that needs to come down. There
12 is no life safety issue. What she did was verify
13 the conditions of their report.
14 This is a 70-year-old building. This is an
15 historical building in a historical section of town.
16 This is a crown jewel in Miami Beach. It is not
17 asking a lot to follow the process of the City of
18 Miami Beach building ordinances, one of which allow
19 the historical preservation board to make a request
20 of the City, which was granted.
21 This is part of the process. If they will let
22 us in with another structural engineer to conduct a
23 full report with someone who has expertise in
24 historical structure, it may very well be that what
25 their expert said is confirmed.
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1 THE COURT: Uh-huh.
2 MR. SCHNEIDER: And they very well --
3 THE COURT: And they first made this request
4 under 118-562(b)(8) when, Mr. Schneider? When was
5 this request first made in the context of this case?
6 MR. SCHNEIDER: January 11th.
7 THE COURT: January 11th. Okay.
8 After I had entered my order and after the
9 building inspector had gone out and done her review?
10 MR. SCHNEIDER: I don't think the building
11 inspector had done the review yet. The Court's
12 order was issued on January 10th.
13 THE COURT: Uh-huh.
14 MR. SCHNEIDER: Your Honor, remember, we didn't
15 have a complete application by the deadline ordered
16 by this Court on October 5th. We had to file two
17 separate motions to appoint a receiver to compel
18 them --
19 THE COURT: What's the endgame here, Mr.
20 Schneider? Is the endgame of the City of Miami
21 Beach to try to force this owner to take this --
22 take this pair of blue jeans and turn it into a
23 tuxedo and try to make it a safe structure so ten
24 years from now another circuit judge is sitting here
25 dealing with the Surfside case? Is that the endgame
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1 here?
2 MR. SCHNEIDER: That is not the endgame, Your
3 Honor.
4 THE COURT: What's the endgame, politically?
5 MR. SCHNEIDER: The endgame is to go through
6 the process.
7 THE COURT: Go through the process. So this is
8 all about process. It's not about substance at all.
9 It's just about process.
10 MR. SCHNEIDER: Your Honor, we have not had
11 many building owners that own historical structures
12 and want to take them down. This is an atypical
13 situation. I hope the Court understands that.
14 This building owner has been saying for years
15 that he wants this building to come down. This is
16 not the usual situation in which we find ourselves.
17 So you have to understand that we were a little bit
18 skeptical when we received a report that said what
19 it said after this owner had been saying for years
20 that he wanted this building to come down well
21 before receiving that report, well before even
22 commissioning that report.
23 So what we want to do is go in and confirm it.
24 We have the statutory right to do that. That is
25 part of the process. If they let us in, if they had
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1 let us in over the last month, this might have been
2 done already.
3 THE COURT: And then when you send this other
4 structural engineer who has expertise in historic
5 structures -- and I have no idea what that's
6 supposed to mean. I mean, you know, you act like
7 historic structures are built differently than any
8 other structure.
9 But if I let this engineer in or force another
10 engineer with, quote, expertise, close quote, in
11 historic structures and they come up with another
12 opinion, then what? We have a third opinion? Are
13 you going to just keep sending people in there until
14 you find somebody to render an opinion that this is
15 a safe structure, and it won't fall and kill 500
16 people?
17 MR. SCHNEIDER: No.
18 THE COURT: That's what you're going to do?
19 We're just going to keep sending engineers in there
20 until you get one who says what you like?
21 MR. SCHNEIDER: No.
22 THE COURT: No?
23 MR. SCHNEIDER: The building official's order
24 is the building official's order. That opinion is
25 not going to change no matter what.
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1 THE COURT: Well, if that opinion is not going
2 to change no matter what, then are you telling me if
3 you send another engineer in and he or she disagrees
4 with the building official, you're still going to
5 have to issue a demolition permit because, as your
6 own mayor and commissioner say, we always err on the
7 side of safety, and if two engineers disagree, we're
8 going to err on the side of safety.
9 So if that's true, what Mayor Gelber and the
10 commissioner said, then what is the point of a
11 useless exercise in having more inspections done?
12 MR. SCHNEIDER: The building official is the
13 one that said she will not change her opinion. To
14 her credit, she was explaining the process to the
15 City commission, and she was saying, I am not going
16 to change my opinion.
17 However, if -- let me answer the Court's
18 question. If another report is obtained and it has
19 different conclusions than the defendants' reports,
20 then there may be an appeal. There may been an
21 appeal of the building official's order. I don't
22 know.
23 THE COURT: An appeal by who?
24 MR. SCHNEIDER: An appeal by the City.
25 THE COURT: The City's going to appeal its own
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1 building official's order?
2 MR. SCHNEIDER: It is possible, Your Honor.
3 THE COURT: Really?
4 MR. SCHNEIDER: It is possible. But if they're
5 right --
6 THE COURT: So let me get this straight. The
7 City of Miami Beach is so anxious to keep this
8 property there despite its building official's
9 conclusion that it's a danger to the community --
10 MR. SCHNEIDER: After a two-hour peer review.
11 THE COURT: -- that they would send another
12 engineer in, get another opinion, and then appeal
13 its own building official's assessment?
14 MR. SCHNEIDER: Your Honor, with all due
15 respect, the opinions don't work that way. If their
16 expert was accurate in their assessment of the
17 building, then this result may be the same, and
18 there won't be an appeal. You have to understand
19 why the City would be skeptical of a report that
20 comes from a derelict owner who has abandoned the
21 building and not maintained the building and has
22 said they want to take it down.
23 THE COURT: Mr. Schneider, your whole
24 presentation is based upon the fiction that the
25 building official's examination and inspection was
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1 somehow limited either by this Court or otherwise,
2 and that is just absolutely, categorically untrue.
3 That building official was not hamstrung in any way,
4 shape, or form. She went in. She had the right to
5 inspect. She had the right to bring anybody she
6 wanted to. Nobody, nobody tied her hands even
7 remotely.
8 So to stand up here to this Court and suggest
9 that all she did was some two-hour perfunctory
10 review because either this Court or somebody else
11 limited her is completely disingenuous and frankly
12 beneath you.
13 MR. SCHNEIDER: Your Honor, it was an agreed
14 order. This was heavily negotiated with the
15 defendants, and it did limit her. It limited her to
16 verify the conditions in their structural condition
17 assessment.
18 THE COURT: No, no. The conditions of the
19 property, not the conditions of their document, Mr.
20 Schneider.
21 MR. SCHNEIDER: But it was a --
22 THE COURT: It allowed her to verify the
23 condition of the property, which she did and
24 concluded that it was unsafe.
25 MR. SCHNEIDER: What she concluded is that a
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1 demolition order should be issued by her, and that's
2 what she did.
3 THE COURT: Okay.
4 MR. SCHNEIDER: What the historic preservation
5 board has --
6 THE COURT: So what's the remedy if I find my
7 order's been violated? Are individual commissioners
8 subject to this Court's contempt power?
9 MR. SCHNEIDER: Your Honor, there is a statute
10 --
11 THE COURT: What is the remedy if I find that
12 my orders are being violated? Do I have the ability
13 to call in the mayor, issue orders to show cause why
14 city officials should not be held in indirect
15 contempt to this Court?
16 MR. SCHNEIDER: Your Honor, if the Court is of
17 the view that the Court's order was violated, we
18 would like an opportunity to convince the Court that
19 that's not the case.
20 The City is exercising its statutory rights.
21 118-562 says what it says. The request has been
22 made. The City has approved it. They have the
23 statutory right to do this. This is part of the
24 process. It was not triggered until we got a
25 completed application from the defendants, which, by
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1 the way, happened months after the fact. That's why
2 --
3 THE COURT: So you believe that the City can
4 exercise discretion in violation of my orders?
5 MR. SCHNEIDER: No. I believe the City has
6 been ordered to process the application for
7 demolition permit, and that's what the City is
8 doing. And part of that process allows the HPB to
9 make a request of the City, and that's what's been
10 done. They are following the city ordinances. That
11 couldn't possibly be a violation of this Court's
12 order.
13 This Court did not say -- order that the
14 Deauville be torn down. This Court did not say,
15 Issue a demolition permit. This Court said, Process
16 the application.
17 THE COURT: Well, I guess that's the relief
18 that the defendant is seeking today; right?
19 MR. SCHNEIDER: They are not seeking that
20 relief in this lawsuit. They're certainly not
21 seeking that relief by today's motion.
22 Your Honor ordered the City of Miami Beach to
23 process the application. It took months for us to
24 get a completed application, and as soon as we did,
25 we started to process it.
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1 Part of that process allows us to request an
2 independent inspection, and that's what we're doing.
3 We're doing it because we are skeptical of the
4 defendants, with good reasons.
5 THE COURT: Sounds like you're skeptical of
6 your own building inspector, and it sounds like your
7 skeptical and are just hunting around, hoping you
8 find some engineer to go in and tell you that this
9 building is safe and can be repaired. Frankly, I
10 don't know why.
11 I told you at many hearings I appreciate the
12 fact that the building -- that the Beatles played in
13 this hotel in 1964, and maybe Paul McCartney stayed
14 at the Champlain Towers. But people have a right to
15 be safe in their buildings, whether they're hotel
16 guests, whether they're condo owners, or anything in
17 between. And I appreciate history and historic
18 designations, but there comes a point in time where
19 if a structure is unsafe, we do not want people in
20 it whether it's historic or not.
21 MR. SCHNEIDER: We understand that.
22 THE COURT: Obviously, the City of Miami Beach
23 doesn't quite appreciate that --
24 MR. SCHNEIDER: We do understand --
25 THE COURT: -- because it seems to be bending
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1 over backwards like a pretzel to try to avoid
2 issuing a demolition permit for this hotel, which
3 its own building inspector has told it is a life
4 safety problem and is structurally in disrepair.
5 MR. SCHNEIDER: With all due respect, the
6 building official never said it was a life safety
7 issue. She specifically said it was not a life
8 safety issue. She did it on three separate
9 occasions.
10 THE COURT: So is she willing to stay there if
11 I order the Deauville to let her stay there for a
12 few weeks?
13 MR. SCHNEIDER: Your Honor, I don't know.
14 THE COURT: You don't know? I highly doubt it.
15 And I highly doubt any of the commissioners in the
16 City of Miami Beach would go pack their bags and
17 stay there for a couple of weeks either, Mr.
18 Schneider.
19 MR. SCHNEIDER: Our simple request is that we
20 have been ordered to process the application, and
21 that's what we are doing, and this is part of the
22 process. And the reason why we are here in March is
23 because the defendants took months until they
24 finally submitted a completed application. They did
25 submit finally a completed application. That's why
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1 we withdrew our motion to appoint a receiver.
2 We have the statutory right to conduct another
3 inspection. We will do it as quickly as we can, and
4 allow us, please, to go through the process.
5 THE COURT: Uh-huh.
6 Mr. Winker, is your motion for intervention set
7 this afternoon?
8 MR. WINKER: No, sir, Your Honor. I was going
9 to say it after this. But I did want to point out
10 to the Court that we have filed an appeal to the
11 Miami-Dade Board of Rules and Appeals on the
12 decision of the building official.
13 THE COURT: Okay.
14 MR. SCHNEIDER: Your Honor, there's a second
15 statutory requirement that's 118-503, and that's for
16 a certificate of appropriateness. That was
17 triggered by the issuance of the demolition order by
18 the building official. That has not been submitted,
19 either.
20 If they would just allow us to go through the
21 process and comply with the statutory requirements
22 of the process, they may very well get what they
23 claim to want. If their inspector was honest in
24 that assessment of the building, it may very well be
25 that our inspection confirms --
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1 THE COURT: Hold on. You're now accusing their
2 inspector of being dishonest?
3 MR. SCHNEIDER: We're not. We're saying the
4 fact that they won't let us in speaks volumes. Let
5 us go in. Let us conduct a second inspection. If
6 they're right, it should reach the exact same
7 conclusion.
8 THE COURT: And who do you propose to be the
9 expert in historic designations who's going to do
10 this yet third inspection? Because, in my opinion,
11 not only has their engineer inspected it, but your
12 own building official has inspected it, and they
13 both reached the same conclusions.
14 So who's this proposed third inspector that you
15 want to trot in there to give a third opinion now?
16 MS. HAND: The proposed independent evaluator
17 is DeSimone, and they have been retained -- they
18 have provided a proposal to the City of Miami Beach
19 and are awaiting this Court's order to allow the
20 inspection to perform an independent evaluation as
21 expeditiously as possible.
22 THE COURT: Okay. Let me hear from the -- let
23 me hear from the defendants.
24 Mr. Dorta.
25 MR. DORTA: Yes, Your Honor.
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1 Let me, if I can, discuss a couple of issues.
2 What I would like to do is go back to some of
3 the things that Mr. Schneider said.
4 The first thing he said is about the HPB
5 request. And let me quote from the assistant city
6 manager, and, Your Honor, I have a copy of the
7 transcript, if you would like it, from the -- from
8 the --
9 THE COURT: Let me ask you a practical
10 question.
11 MR. DORTA: Sure.
12 THE COURT: Let's assume we don't let them do
13 this inspection. You've not asked me to compel them
14 to issue a demolition permit. So if we don't let
15 them go through the so-called process they claim, in
16 my view disingenuously, to need to go through, where
17 does that leave us other than with the hotel sitting
18 there?
19 MR. DORTA: It is where it leaves us, Your
20 Honor. No inspection -- and I'll go through why
21 another inspection is not needed; okay? And,
22 remember, they do it under a request for inspection
23 under this Court's civil procedure on discovery.
24 That's what they submitted for -- so they've already
25 had their one inspection. And I'll go through --
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1 when they said they fully inspect it --
2 THE COURT: But where does that leave it? In
3 other words, if you have not asked for and I lack
4 authority -- and I don't know if I do -- to order
5 them to actually issue a demolition permit, if we
6 don't let them go through these motions that they
7 again, in my view disingenuously, claim to have to
8 go through, where does that leave the hotel?
9 MR. DORTA: That leaves the hotel in the
10 following situation: They have no right to another
11 inspection. They have no right for a certificate of
12 appropriateness before the issuance of the
13 demolition permit.
14 There's only one thing left: The issuance of a
15 demolition permit. Every department --
16 THE COURT: They obviously, for whatever reason
17 -- I don't know what the politics are in the City of
18 Miami Beach, but for some reason that this Court
19 cannot conceivably discern, they don't want to give
20 you that. Have you got that impression?
21 MR. DORTA: I have, Your Honor.
22 THE COURT: They want to force this hotel --
23 despite your engineer and despite their building
24 official saying it's an unsafe structure, they
25 somehow want to force this hotel to stand and maybe
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1 one day be occupied. I hope you understand that.
2 MR. DORTA: I do, Your Honor.
3 THE COURT: Because it's coming across to this
4 Court loud and clear.
5 So unless I issue an order, a mandatary
6 injunction saying thou shall issue a demolition
7 permit, where does that leave you?
8 MR. DORTA: If the issue is, Your Honor, that
9 they have -- no longer have the right to inspection,
10 which is one thing they claim, and the certificate
11 of appropriateness is not applicable preissuance of
12 the demolition permit, they have no other reason not
13 to issue a demolition permit. That is where we are
14 right now.
15 They have said two reasons for not -- well,
16 when you look through the permit process, the one
17 issue they have is the lack of an issuance of a --
18 lack of submission of a certificate of
19 appropriateness. That was an argument they made
20 before the order of demolition was entered. After
21 the demolition order was entered, you know what they
22 did, Your Honor? They withdrew that because they
23 knew it was an after-the-fact situation.
24 What is the purpose of a certificate of
25 appropriateness? For them to decide what would be
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1 built on the property after demolition. That is the
2 reason for it. And that's why they withdrew the
3 first time they had their certificate of
4 appropriateness in there as part of their sanctions.
5 Once the order of demolition was entered, they
6 withdrew that.
7 One thing that hasn't been said -- and it's in
8 the transcript over and over again -- the final
9 determination of an order of demolition is from the
10 building official. She has the final say. And they
11 have said -- the building official said -- in
12 questioning by the assistant city manager, What do
13 you do?
14 She says, Every time we go with the safest
15 route. So she said she fully inspected. She said
16 she was not denied access. Five people went in
17 there, and the assistant city manager says to the
18 commission, We also -- at the request of HPB, we
19 added two additional members to the team, one an
20 outside consultant from CAP, C-A-P, Engineering that
21 does structural engineering reviews and a registered
22 architect from CAP --
23 THE COURT: Would it be appropriate for me to
24 just convene an evidentiary hearing and make the
25 building inspector come in and testify in front of
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1 me under oath as to what she did and see if she was
2 as limited as Mr. Schneider seems to suggest or
3 whether she believes she was as limited as Mr.
4 Schneider appears to be suggesting to the Court?
5 Should I have an evidentiary hearing?
6 MR. DORTA: Well, Your Honor, if we assume that
7 she did not lie to the commission when she said to
8 the commission, I was not denied access. I went to
9 additional places when I was in there. I wanted to
10 stand in front of this commission and tell you that
11 I fully inspected the building, and that's what I
12 did. If we assume she was not lying at the
13 commission, then that's exactly what she did.
14 Not only did everybody -- those five concur,
15 but one of the things that I was told why this
16 architect was in there needed -- because he's on the
17 BORA board. So if it gets appealed up there, you
18 want somebody from that board to look at it; right?
19 She got the information, sent it to the BORA board,
20 and guess what? And it's in the transcript. BORA
21 concurred this building needs to be demolished.
22 So, therefore, we have the five individuals,
23 including the building official that has the final,
24 saying it is an unsafe structure. It needs to be
25 demolished. We have the two CAP engineers, outside
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1 consultants that the HPB wanted in that review
2 board, go in there and concur it needs to be
3 demolished. We have the people from the staff of
4 BORA, it needs to be demolished. And we have the
5 city attorney in the transcript saying, You guys are
6 really veering off the application process here.
7 We're going to have to go to court to see if we're
8 allowed a second inspection. And it's in here. And
9 I have the transcript here, and we have filed it
10 with the Court.
11 Therefore, Your Honor, we have gone through
12 everything that was needed. I was told beforehand,
13 Mr. Dorta, the most important thing the City wants
14 is a structural report, and we will go in there
15 after the structural report. We gave them the
16 structural report.
17 They wanted five individuals to go in there,
18 including outside consultants because the HPB wanted
19 these outside consultants. We let them in. We did
20 not deny access, as Ms. Salgueiro says, the building
21 official. She fully inspected the building, as Ms.
22 Salgueiro says. She came to the conclusion that
23 it's unsafe, and it needs to be demolished.
24 She says -- and the assistant city manager
25 says, In every other situation where you have issued
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1 a demolition order, what is it? She says, I always
2 take the safest route because lives -- safety trumps
3 all.
4 So, therefore, no matter what happens now,
5 unless they get -- the only thing that's going to
6 change is if -- to the building official is if an
7 inspector comes in and says, Demolish this thing
8 tomorrow. Because demolition is the only way to go
9 right now. That's what the building official says.
10 She has the final word, Your Honor. And I have the
11 transcript here where she says over and over again
12 --
13 THE COURT: So maybe I need to ask her whether
14 -- if I allow them to do this second inspection and
15 it comes back and says, Nope. The building is safe
16 and does not need to be demolished, whether she's
17 going to change her mind. Because if she's not
18 going to change her mind, then I don't know what is
19 to be gained by this exercise here.
20 Is the building inspector here?
21 MS. HAND: No.
22 MR. DORTA: Your Honor, may I approach with the
23 transcript?
24 THE COURT: Sure.
25 MR. DORTA: There is the questioning on page 47
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1 from the -- from the assistant city manager to the
2 building official. And after a very lengthy
3 conversation with our building official about that
4 particular topic, "And, Ana, what have we done in
5 all other cases when we have two conflicting
6 inspection reports, particularly building and
7 safety?"
8 "We've always gone with the most conservative."
9 MR. SCHNEIDER: Your Honor, if I may?
10 THE COURT: You may after he finishes.
11 MR. DORTA: So, therefore, Your Honor, it will
12 be a waste of time. She fully inspected. The
13 reason the outside consultants went in there is
14 because the HPB wanted them there. The reason an
15 architect was in there was because he had historic
16 preservation experience. BORA has concurred, at
17 least the staff has, that it must be demolished.
18 Our engineer -- to be honest with you, it's kind of
19 offensive for Mr. Schneider to question her report
20 when they bring in five people and they all
21 concurred with her.
22 Now, if I may for one last thing, Your Honor,
23 on the certificate -- on the certificate of
24 appropriateness, if I -- remember that they had
25 initially -- before the order of demolition was set
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1 forth, they had moved for sanctions because of a
2 certificate of appropriateness.
3 May I approach, Your Honor?
4 THE COURT: You may.
5 MR. DORTA: Then they filed a subsequent motion
6 for sanctions. They actually withdrew -- they
7 withdrew this one, too, but when they filed the
8 subsequent motion for sanctions, if you look at
9 Footnote 1, they dropped the certificate of
10 appropriateness, and they said they had to file a
11 motion for contempt on the basis of failure to
12 include an application of certificate of
13 appropriateness.
14 However, the building official issued an order
15 to demolish on January 19th, 2022. "Therefore,
16 although defendants will be required to submit an
17 application for certificate of appropriateness for
18 an after-the-fact demolition and new construction,
19 the building permit for total demolition can issue
20 prior to a certificate of appropriateness, and for
21 this reason, the motion is now amended."
22 Now, why is that important? Because, like I
23 said, they have penalties that they could charge if
24 a certificate of appropriateness is not submitted.
25 But the only reason for the certificate of
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1 appropriateness is to determine what is going to be
2 on the vacant property, what building is going to
3 replace it. So, therefore --
4 THE COURT: Well, it appears that despite their
5 prior representation to this Court that that
6 certificate of appropriateness can be issued after
7 demolition, their prior presentation, they're now in
8 here telling me exactly the opposite, which is the
9 certificate of appropriateness is somehow essential
10 prior to them -- to issuing a demolition permit.
11 So they just -- they appear to just tell this
12 Court whatever they need to tell me in order to
13 delay this process, so...
14 MR. DORTA: And lastly the -- and that motion
15 for sanctions you have there, they've also withdrawn
16 it because we've complied with everything. All
17 that's left is for the issue of the demolition
18 permit, and as your order says, we have to do it
19 expeditiously.
20 We raised that issue at the last -- at that
21 hearing when that was entered, that they're going to
22 start delaying and delaying and delaying, and I
23 believe that's why your order -- your order says
24 both parties have to act expeditiously.
25 Thank you, Your Honor.
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1 THE COURT: Well, before you step down, you
2 have filed a motion for sanctions. You have not
3 articulated in the motion precisely what sanctions
4 you are seeking.
5 MR. DORTA: I am seeking --
6 THE COURT: What is it you're seeking?
7 MR. DORTA: I am seeking the expeditious
8 process of this demolition permit, as your order
9 says. I want -- the inspection is a bogus argument.
10 So is the certificate of appropriateness. The
11 demolition permit should issue expeditiously.
12 There's no reason to stop it any longer.
13 For sanctions, I would also like attorneys'
14 fees incurred in this back-and-forth over this
15 issue, Your Honor.
16 THE COURT: Okay.
17 Mr. Schneider, I'll give you the last word.
18 MR. SCHNEIDER: Thank you, Your Honor.
19 Your Honor, the City is processing the
20 application.
21 THE COURT: So why when the City told me in a
22 pleading filed before this Court that although an
23 application for certificate of appropriateness for
24 after-the-fact demolition and new construction is
25 still required, it no longer needs to be issued
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1 prior to demolition, and now you're in here today
2 telling me that this certificate of appropriateness
3 needs to be issued before a demolition permit?
4 MR. SCHNEIDER: Your Honor, the Court --
5 THE COURT: Which is it?
6 MR. SCHNEIDER: The Court can read 118-503.
7 That is a bit of a moving target. A certificate of
8 appropriateness --
9 THE COURT: The City's entire position before
10 this Court has been a moving target from the very
11 outset.
12 MR. SCHNEIDER: A certificate of
13 appropriateness is always needed.
14 THE COURT: Before issuance of a demolition
15 permit?
16 MR. SCHNEIDER: Under 118-503(a), yes, before.
17 THE COURT: So why was I told in the City's
18 pleading that "Although defendants will still be
19 required to submit an application for a certificate
20 for appropriateness for after-the-fact demolition
21 and new construction, the building permit for total
22 demolition can be issued prior to approval of a
23 certificate of appropriateness"? Did I read that
24 right in the City's pleadings.
25 MR. SCHNEIDER: Yes, Your Honor, because --
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1 THE COURT: So was that not true when the City
2 represented that to me?
3 MR. SCHNEIDER: Your Honor, when the demolition
4 order was issued by the building official, it
5 changed the timing of the certificate of
6 appropriateness. It was no longer needed as part of
7 the original application. Under 118-503(b), it was
8 now due --
9 THE COURT: Mr. Schneider, let me tell you
10 something.
11 MR. SCHNEIDER: -- within 15 days.
12 THE COURT: You and your client are skating on
13 very thin ice here.
14 MR. SCHNEIDER: Your Honor, I believe -- I just
15 spoke to my colleague. I believe that the
16 independent evaluation can be done in six weeks. We
17 made --
18 THE COURT: Well, there's not going to be any
19 independent evaluation done pursuant to an order of
20 this Court.
21 Your motion to compel the compliance with your
22 code and overrule the defendants' objection is
23 denied. This Court is not ordering any further
24 inspection whatsoever, and it's not ordering this
25 defendant to do anything other than what it already
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1 has, which is submit a full and complete demolition
2 application.
3 Now, if the City elects to not issue a building
4 permit, it will do so at its own risk and peril, but
5 I am not ordering any further inspection of the
6 hotel.
7 Now, as far as the plaintiff's motion for
8 sanctions, that is denied without prejudice to renew
9 in the event this matter goes further than it needs
10 to go in the future. But today I am not awarding
11 sanctions. I'm denying the sanction motion, and I'm
12 denying the City's motion to compel compliance with
13 its code. If you have some other avenue to seek --
14 compel compliance with your code, have at it. But
15 this Court is not entering any orders requiring any
16 further inspections.
17 It is very apparent to this Court that both a
18 qualified structural engineer and the City's own
19 building official have deemed this hotel unsafe, and
20 it needs to come down. Now, for some political
21 reason that I am not aware of and is beyond my pay
22 grade, the City powers to be for some reason are
23 simply resisting ad nauseam the effort to demolish
24 this hotel.
25 I don't know what their motivation is nor do I
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1 care, but this Court is not entering any further
2 orders to assist the City of Miami Beach in delaying
3 this process and leaving a clearly unsafe structure
4 amenable to the public.
5 Anything else for today?
6 MR. SCHNEIDER: I have another ten seconds of
7 argument that haven't been made yet.
8 THE COURT: Okay. Give me your ten seconds.
9 MR. SCHNEIDER: Your Honor, this building that
10 we're in right now was deemed an unsafe structure at
11 some point in time. It was remediated, and we're
12 back in it today. It could be that after the
13 independent evaluation a determination is made for a
14 partial demolition. It could be a determination is
15 made that parts of the building can be saved.
16 THE COURT: A lot of things could be, Mr.
17 Schneider, but let me tell what is. A structural
18 engineer and the City's building official have
19 deemed this property to be unsafe. It is an old,
20 dilapidated structure.
21 And, like I said before, I'm not interested in
22 this Court or any other circuit judge presiding over
23 another Surfside case a decade down the road.
24 Anything else?
25 MR. SCHNEIDER: No, Your Honor. Thank you.
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1 THE COURT: Have a nice day. We're in
2 adjournment.
3 MR. ROTHSTEIN: I'd like to order this as an
4 expedite for Monday.
5 MR. DORTA: I would like the transcript.
6 (Thereupon, the hearing was concluded at 4:33
7 p.m.)
8
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1 CERTIFICATE OF REPORTER
2
STATE OF FLORIDA )
3 )
COUNTY OF MIAMI-DADE )
4
5
6 I, VANESSA OBAS, RPR, Notary Public, State of
7 Florida, I was authorized to and did stenographically
8 report the foregoing proceedings; and that the
9 transcript, pages 3 through 38, is a true and accurate
10 record of my stenographic notes.
11
12 I FURTHER CERTIFY that I am not a relative, or
13 employee, or attorney, or counsel of any of the parties,
14 nor am I a relative or employee of any of the parties'
15 attorney or counsel connected with the action, nor am I
16 financially interested in the action.
17
18 Dated this 7th day of March, 2022.
19
20
21 <%22726,Signature%>
______________________
22 VANESSA OBAS, RPR
23
24
25
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1
DAVID J. WINKER, P.A.
4720 S. LeJeune Rd
Coral Gables, Fl 33146
305 801 8700
dwinker@dwrlc.com
February 24, 2022
Via Email
Kathy Charles
Board Administrator
Miami-Dade Regulatory and Economic
Resources Board Administration Section
11805 SW 26th Street, Room 230
Miami, Florida 33175
RE: Appeal of Demolition Order- Deauville Beach Resort
Dear Ms. Charles:
The Miami Design Preservation League (“MDPL”), by and through the undersigned attorney,
files this appeal of the Order of Demolition on the Deauville Beach Resort (“the Deauville”) at
6701 Collins Avenue, Miami Beach owned by Deauville Associates LLC (the “Developer).
The Miami Design Preservation League is a non-profit resource for historic preservation and
enhancement of Miami Beach’s unique architectural and cultural identity. The Miami Design
Preservation League is recognized as one of two entities with appellate standing to review
decisions regarding historic properties in Miami Beach, which rights are s et forth in the Miami
Beach Municipal Code. (Sec. 118-9. - Rehearing and appeal procedures).
Exhibit C
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2
The Order of Demolition was issued on January 19 2022 by Miami Beach Building Director Ana
Salgueiro and a screenshot from the City’s EGov permit system at
https://eservices.miamibeachfl.gov/EnerGovProd/SelfService#/home is attached as Exhibit A.1
This appeal is based upon the following:
1. Developer’s failure to comply with the Court’s order in CITY OF MIAMI BEACH v.
DEAUVILLE ASSOCIATES LLC, ET AL, 2019-003653-CA-01 (the “Litigation”);
2. Developer’s failure to comply with the City’s Code requirements; and
3. Inconsistencies in the December 15, 2021 Structural Condition Assessment provided by
Anesta Consulting, Inc. on behalf of Developer to the City of Miami Beach.
DEVELOPER’S FAILURE TO COMPLY WITH THE COURT’S ORDER
The City has been involved in litigation regarding the Developer’s failure to maintain the
Deauville since unpermitted electrical work by the Developer resulted in a fire that closed the
hotel in 2017.
In response to the Judge’s October 5 2021 Order, Developer filed application materials on
December 15, 2021 for the total demolition of the Deauville, but the application contained
obvious and material defects, including the fact that the applicant was not even the property
owner.
Despite these inconsistencies, Miami Beach Building Director Ana Salgueiro entered an Order of
Demolition on January 19 2022.
1 Undersigned counsel has been unable to find any formal written Demolition Order other than
the entry attached as Exhibit A.
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3
DEVELOPER’S FAILURE TO COMPLY WITH THE CITY’S CODE REQUIREMENTS
The City provided written notice of missing materials to Developer on January 28, 2022.
In conjunction with the processing of the demolition application in the ordinary course, the City
requested access to the building for evaluation by a licensed independent structural engineer with
experience in historic structures. See January 26, 2022 Letter, attached as Exhibit A.
The City also notified the applicant that, pursuant to Section 118-503(b)(1), an “after-the-fact"
application for a certificate of appropriateness for demolition to the Historic Preservation Board
(“HPB”) was due on or before February 3, 2022. See February 9, 2022 Letter, attached as
Exhibit C.
Developer has not submitted the application for a certificate of appropriateness as required.
The City is processing the application for total demolition of the Deauville in the normal course.
That process entitles the City to (a) retain a licensed structur al engineer with expertise in historic
structures to perform an independent evaluation; and (b) require the applicant to file an after-the-
fact application for a certificate of appropriateness of demolition of a historic structure within 15
days of the order of the building official.
EXCEPTIONS TO STRUCTURAL CONDITION ASSESSMENT
1. The finding that the “main result of the compression tests indicated that the strength of the
concrete throughout the columns was inconsistent (nonuniform) and the results of the
compression tests could not be relied upon within structural design analysis since structural
theory depends on a consistent (uniform) compressive strength throughout the member ” (Testing
Summary E(b)) is likely the result of extraction/testing method and cracking in the samples.
2. The finding that “water-soluble chloride intrusion into the Ground Level columns and
beams exceeded the threshold set forth by ACI 318 -14 within the reinforcement layer of the
tested columns” (Testing Summary E(c)) fails to take into consideration ACI 201 and other
ACI guidelines that should be considered.
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4
3. There is not basis provided for the finding that the “Deauville handrails and its adjacent
structural components would require an increase of applied load by a factor of 2.5” (Testing
Summary F(a)).
4. The finding that “analysis of the Deauville for current wind speeds would generate an
approximate 32.7% increase in wind pressures as compared to its original design wind speed, at
a minimum” (Testing Summary F(b))fails to take into consideration the windload at the time of
construction, which must be considered.
5. There is not basis provided for the finding that “Due to the extent of the construction
defects, corrosion, and deterioration discussed within this report, the Deauville was not able to be
analyzed by strength evaluation or load test as described within ACI 318 -14, and as such cannot
be returned to service.” (Testing Summary G(a))
6. There is no basis provided for the finding that “The nature of the construction defects
within the reinforced concrete system makes it infeasible to analyze and therefore repair the
structure in order to withstand its original or current design load requirements.” (Testing
Summary G(b))
7. There is no basis provided for the finding that “The recommended 5-year cycle of
corrosion repairs, the chloride ion content measured in select columns, and the magnitude of
deterioration of steel and concrete observed during our inspections indic ates that the building as
a whole is in distress and has exceeded its service life.” (Testing Summary G(c))
8. There is no basis provided for the finding that “Due to the presence of transfer slabs and
the lack of isolation joints, areas of potential localized collapse are likely to cause progressive
collapse to the remainder of the adjacent continuous structure either north or south of the
isolation joint .” (Testing Summary H(a))
9. It is absurd to argue that “The entirety of the interior non-structural elements of the
Deauville would need to be removed, and the entirety of the structure would need to be inspected
relative to the visible and hidden reinforced concrete conditions. Such an inspection, and its
resultant repairs, would require a tremendous exp enditure of time and costs, would be intrusive,
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and may cause sudden local and/or progressive collapse. The hidden nature of the construction
defects, and the observed conditions during our scope of work, also presents a high risk of
uncertainty during and following the repair and rehabilitation” because removal of non-structural
elements does not lead to progressive collapse. (Testing Summary J(a))
10. We disagree with the conclusion that “It is our opinion that the only rehabilitation
approach which could potentially extend the service life of the Deauville is to essentially rebuild
the reinforced concrete structural system in a controlled and segmented manner. As such, we do
not recommend rehabilitation or repair of the Deauville” because it has been done before.
(Testing Summary J(b))
In conclusion, there is nothing in the Structural Condition Assessment that states that the
building cannot be repaired. The bottom line is that repairs more extensive than this have been
done before and this building does not need to be demolished. This has been done before.
Please contact me if I can provide any further materials or answer any questions.
Sincerely,
____s/djw_____
David Winker, Esq.
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EXHIBIT A
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