YTECH-180 UNITS MIAMI BEACH INVESTMENT

v.

CITY OF MIAMI BEACH

Before: TRAWICK, WALSH and BOKOR, JJ.

PER CURIAM.

Ytech-180 Units Miami Beach Investment, LLC (“Ytech”) filed a petition for writ of certiorari seeking to quash City of Miami Beach (“City”) Commission Filing # 112605126 E-Filed 08/31/2020 09:39:47 It is the largest property in the Tatum Waterway Neighborhood.¹ [*3] Page³ of 11 Development of Master Plan The City’s Response provides a description of the lengthy process that resulted in the adoption of the Ordinance dating back to 1999, when its Planning Department commenced a master planning process which included public workshops, focus group meetings, public hearings, etc. In 2009, the federal government officially listed the North Shore National Register Historic District, including the Tatum Waterway Neighborhood, in the National Register. In April 2015, the City Commission (the “Commission”) retained the firm of Dover Kohl & Partners to draft the North Beach Master Plan (the “NoBe Plan”), which was adopted by the Commission in October 2016. The Commission also authorized the City administration to expedite the creation and implementation of the NoBe Plan’s recommended projects, which included the creation of the North Shore Local Historic District. This proposed District was comprised of 175 acres and 473 historically significant or contributing structures. It included the Tatum Waterway Neighborhood. Additionally, the City established a series of moratoria prohibiting demolition of historically significant buildings in this District. Local Designation Process On July 13, 2016, the Commission directed the Planning Department to commence the local designation process for the North Shore Historic District as defined in the NoBe Plan. On October 11, 2016, the HPB reviewed the Preliminary [*4] Page 4 of 11 Evaluation Recommendation Report and directed staff to prepare a Formal Designation Report. (Pet. App. B. 86). On December 9, 2016, the City Commission modified the HPB’s recommendation by excluding the Tatum Waterfront Neighborhood from the proposed Designation. On September 25, 2017, the Commission resolved to again include the Tatum Waterway Neighborhood. On October 10, 2017, the HPB transmitted the designation report to the Planning Board and City Commission with a favorable recommendation to include the Tatum Waterfront Neighborhood. The Planning Board unanimously approved a motion to recommend approval of the designation of the proposed North Shore Historic District. On December 18, 2017, the Mayor and Commission unanimously approved the designation of the North Shore Historic District. Expansion of the North Shore Historic District On December 18, 2017, the HPB reviewed the Preliminary Evaluation and Recommendation Report regarding the expansion of the North Shore Historic District and directed staff to prepare a Formal Designation Report. On January 17, 2018, the Mayor and Commission adopted the designation. The City held four public hearings as part of this historic designation process: [*5] Page 5 of 11 March 12, 2018 HPB Designation Hearing – Notice to the Public was advertised in the January 28, 2018 Edition of the Miami Herald.² (Resp. App. 499). After input from the public and discussion of the Board, the HPB voted unanimously (7-0) to transmit a favorable recommendation for Historic Designation to the Planning Board and City Commission. March 27, 2018 – Planning Board Hearing The Planning Board processed the designation as an amendment to the City’s land development regulations. The amendment added the legal description of the Tatum Waterway boundaries to section 118-593(e)(2)(1) of the Code. After a brief staff presentation and public comment, the Planning Board voted unanimously to recommend adoption of the Tatum Waterway Neighborhood to the North Shore Local Historic District. April 11, 2018 First Commission Hearing Members of the public spoke for and against the designation amendment. Ytech was represented by two attorneys at this hearing, Neisden Kasdin, Esq. and Wayne Pathman, Esq. Mr. Kasdin stated that the properties in the Tatum Waterway Neighborhood were prone to flooding and argued that the Commission was [*6] Page 6 of 11 compelled to consider sea level rise and resiliency. He stated that the Historic Designation would cause a “high probability that there will be no new development orders, there will be no demolition.” (Pet. App. C. 4-5). He further stated that “I’m not asking you today not to vote for this, but before you vote for this on second reading [consider] how can it be mitigated.” (Pet. App. C. 6). Mr. Pathman implored the Commission to consider “the economic impact of what will happen with flood insurance” and “look to mitigate that possibility.” (Pet. App. C. 17-18). Neither attorney presented any evidence at this hearing, nor did they complain of lack of notice. (Nor could they since they both appeared and represented their client.) The Commission voted to approve the First Reading of the Historic Designation. May 16, 2018 Final Hearing Mr. John Breistol, the President of Ytech, related that his tenants “contend with flood conditions on a regular basis” and stated that the Commission did “not properly study the impacts this legislation may have.” (Pet. App. B. 5). As pointed out by the City, neither Mr. Breistol, nor Ytech’s attorneys challenged compliance with the criteria set forth in Miami Beach Code section 118-592(a), other than Mr. Breistol’s comments regarding flood conditions. The Commission voted unanimously to approve the adoption of the Ordinance. Ytech filed this Petition for Writ of Certiorari challenging the City’s Historic Designation. The City filed a Response which included therein a Motion to Dismiss [*7] Page 7 of 11 the Petition. The Motion to Dismiss claims that this Court does not have certiorari jurisdiction because the Historic Designation was the result of a legislative act and not the result of a quasi-judicial hearing.

STANDARD OF REVIEW

“Whether a lower tribunal has subject matter jurisdiction is a question of law that is reviewable de novo.” Department of Revenue v. Vanamburg, 174 So. 3d 640, 642 (Fla. 1st DCA 2015) (citation omitted). Certiorari review by the circuit court requires a determination as to whether: (1) procedural due process was accorded, (2) the essential requirements of the law were observed; and, (3) the administrative findings and judgment were supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). DISCUSSION “It is the character of the hearing that determines whether or not board action is legislative or quasi-judicial. Generally speaking, legislative action results in the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy.” Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla.1993) (citations omitted). Ytech claims that the adoption of the Ordinance approving the Historic Designation was judicial in character; whereas, the City claims that it was legislative in character. We decline [*8] Page 8 of 11 to make such a determination, as we find that the City made the determination through its own Code. The Historic Designation Procedure is set forth in the Code sections 118-591 through 118-593. An outline of this procedure is provided in the May 16, 2018 Commission Memorandum for the Second Reading Public Hearing: Step One: A request for designation is made either by the City Commission, the Historic Preservation Board, other agencies and organizations as listed in the Land Development Regulations of the City Code, or property owners involved. Proposals for designation shall include a completed form available from the Planning Department.

Step Two: The Planning Department prepares a preliminary evaluation report with recommendations for consideration by the Board.

Step Three: The Historic Preservation Board considers the preliminary evaluation to determine if proceeding with a designation report is warranted. The designation report is an historical and architectural analysis of the proposed district or site. The report:¹) describes the historic, architectural and/or archeological significance of the property or subject area proposed for historical Site or District designation;²) recommends Evaluation Guidelines to be used by the Board to evaluate the appropriateness and compatibility of proposed Developments affecting the designated Site or District; and³) will serve as an attachment to the Land Development Regulations of the City Code.

Step Four: The City Commission is notified of the Board’s decision and the initial boundaries proposed for designation. Within 60 days of the vote of the Historic Designation Board to direct the Planning Department to prepare a designation report, the City Commission may, by a five seventh’s vote, deny or modify the proposed request for designation.

Step Five: The designation report is presented to the Historic Preservation Board at a public hearing. If the Board determines that the [*9] Page 9 of 11 proposed site or district satisfies the requirements for designation as set forth in the Land Development Regulations of the City Code, the Board transmits a recommendation in favor of designation to the Planning Board and City Commission.

Step Six: The Planning Board will hold a public hearing on the proposed designation, and shall consider the proposed historic designation as an amendment to the Land Development Regulations of the City Code and, subsequently, transmit its recommendation to the City Commission.

Step Seven: The City Commission may adopt an amendment to the Land Development Regulations of the City Code by a five-sevenths majority vote, which thereby designates Historic Preservation Site or Historic District after two (2) public hearings for a parcel of land that is more than ten (10) contiguous acres.

(R. 86). It appears that the process provided by the Code for the adoption of Historic Designation status is legislative in character and the City substantially complied with this process in designating the Tatum Waterway Neighborhood. The City contends that the HPB has two separate essential functions: one being legislative, i.e., to recommend to the planning board, and city commission, the designation of historic buildings, structures, improvements, landscape features, public interiors, and historic sites or districts (See Code §118-102(1)); and, the other being quasi-judicial, i.e., review and approval of applications for “certificates of appropriateness.” (See Code §118-102(3)). However, Ytech claims that the process is quasi-judicial relying on Code section 118-591(f) which provides: Public hearing. A quasi-judicial public hearing on a proposed historic preservation designation shall be conducted by the historic preservation [*10] Page 10 of 11 board after the date a designation report has been filed, and shall comply with the notice requirements in accordance with section 118-8.

Section 118-8 provides notice procedures for quasi-judicial, public hearings and quasi-judicial land use board actions by advertisement, mail and posting.³ In regard to notice by mail, Code section 118-8 states in part that: “At least 30 days prior to the quasi-judicial, public hearing date, a description of the request, and the date, start time of the meeting, and location of the hearing shall be given by mail to the owners of record of land lying within 375 feet of the property subject to the application.”

While this Court need not decide whether a historic designation process for an area is necessarily quasi-judicial, it is impossible to rectify Code section 118- 591(f) with the City’s argument that this specific process was legislative in nature. And once the Code requires a quasi-judicial public hearing at the historic preservation board level, any further reviews by the Commission that flow from such hearing must also be quasi-judicial in nature. Accordingly, the hearing at the City Commission adopting the ordinance failed to comply with due process as required by the City’s own code.

[*11] Page 11 of 11 As the City has defined the nature of the historic designation process within its Code as quasi-judicial, the City failed to comply with the due process requirements set forth in section 118-8 of the City Code. Accordingly, we grant the writ, quash the City’s Ordinance and remand for a new hearing. TRAWICK, WALSH, and BOKOR, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL [*12] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]