HomeMy WebLinkAboutR-92-014944
L I
J-92-54(a)
1/15/92
RESOLUTION NO.
A RESOLUTION DENYING THE APPEAL AND AFFIRMING
THE DECISION OF THE HISTORIC AND
ENVIRONMENTAL PRESERVATION BOARD, APPROVING
THE DESIGNATION OF THE BAYSIDE HISTORIC
DISTRICT, AN AREA GENERALLY BOUNDED BY THE
REAR LOT LINES BETWEEN NORTHEAST 72ND STREET
AND NORTHEAST 72ND TERRACE ON THE NORTH,
BISCAYNE BAY AND NORTHEAST 7TH COURT ON THE
EAST, NORTHEAST 69TH STREET EAST OF NORTHEAST
7TH COURT (EXTENDED) AND THE REAR LOT LINES
BETWEEN NORTHEAST 67TH STREET AND NORTHEAST
68TH STREET WEST OF NORTHEAST 7TH COURT ON
THE SOUTH, AND THE REAR LOT LINES OF
PROPERTIES FRONTING ON BISCAYNE BOULEVARD ON
THE WEST, AS A HISTORIC DISTRICT; AND FURTHER
AFFIRMING THE AMENDMENT TO PAGE NUMBERS 8, 9,
AND 14 OF THE HISTORIC AND ENVIRONMENTAL
PRESERVATION ATLAS TO REFLECT SAID HISTORIC
DISTRICT DESIGNATION.
WHEREAS, the Historic and Environmental Preservation Board
(HEP) at its meeting of November 19, 1991, following an
advertised public hearing adopted HEP Resolution No. 91-39 by a 5
to 0 vote, APPROVING the designation of the area generally
bounded by the rear lot lines between Northeast 72nd Street and
Northeast 72nd Terrace on the North, Biscayne Bay and Northeast
7th Court on the East, Northeast 69th Street East of Northeast
7th Court (extended) and the rear lot lines between Northeast
67th Street and Northeast 68th Street West of Northeast 7th Court
on the South, and the rear lot lines of properties fronting on
Biscayne Boulevard on the West, as the Bayside Historic District;
and
CITY CCtii1—P-&T '1,aIv1q
MEETIM3 OF.
i
F E B 18 1992
G
fll�OlU?fON No.
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WHEREAS, pursuant to Section 62-75, of the Code of the City
of Miami, Florida, as amended, the Historic and Environmental.
Preservation Board further approved amending Page Numbers 8, 9,
and 14 of the Historic and Environmental Preservation Atlas to
reflect said historic district designation; and
WHEREAS, pursuant to Section 23.1-4 of the City Code, an
appeal to the City Commission from said historic district
designation has been taken by the Estate of Mary Elizabeth
Whitney Tippett and Cloyoe Tippett, owners of the property
located at 7101 Northeast loth Avenue, Miami, Florida, and the
adjoining lot, which said properties have been included in the
designation of the Bayside Historic District; and
WHEREAS, the City Commission after careful consideration of
this matter finds that the stated grounds for the appeal and the
facts presented in support thereof do not justify reversing the
decision of the Historic and Environmental Preservation Board and
finds no basis for reversing the designation of the said area as
a historic district;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The City Commission hereby affirms the decision
of the Historic and Environmental Preservation Board (HEP
Resolution No. 91-329, adopted November 19, 1991,) designating
the area generally bounded by the rear lot lines between
Northeast 72nd Street and Northeast 72nd Terrace on the North,
Biscayne Bay and Northeast 7th Court on.the East, Northeast 69th
Street East of Northeast 7th Court (extended) and the rear lot
lines between Northeast 67th Street and Northeast 68th Street
West of Northeast 7th Court on the South, and the rear lot lines
of properties fronting on Biscayne Boulevard on the West, as the
Bayside Historic District, and denies the appeal giving rise to
this hearing.
Section 3. The decision of the Historic and Environmental
Preservation Board to amend Page Numbers 8, 9, and 14 of the
Historic and Environmental Preservation Atlas so as to reflect
said historic district designation referenced herein is hereby
affirmed.
Section 4. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 18th day o
ATTES
MATTY HIRAI
City Clerk
PREPARED AND APPROVED BY:
JULI . BRU
Assistant City Attorney
Feby6ary
eol'- <:� L
APPROVED AS TO FORM AND CORRECTNESS:
Qb±kN J S, III
City Atto y
JOB/mv/ 51
-3-
1992.
XAVIER 4. SUAREZ, MAYOR
I % C
V OF %.;A%' F�OR![)A '4
INTER -OFFICE MEMORANDUM PZ=1-6
Honorable Mayor and Members Dt.T E
of the City Commission JAN
SUWECT Appeal of Historic Designation
of the Bayside Historic District
�� to the City Commission
`ROM Cesar H. Odio REcERENCES Agenda Item: City Commission
City Manager ENCLOSURES Meeting of January 23, 1992
RECOMMENDATION:
It is respectfully recommended that the City Commission uphold the decision of the
Historic and Environmental Preservation Board in designating the Bayside Historic
District by denying this appeal.
WynpniiNn-
Please refer to the attached memorandum from the Preservation Officer concerning
this appeal.
Attachment
cc: Planning and Zoning Division
9 Planning, Building and Zoning Department
INTER -OFFICE MEMORANDUM
Sergio Rodriguez = January 9, 1992
Assistant City Manager
6.;EC7 Appeal of Designation of the
Bayside Historic District to
the City Commission
=aGGt ^ ^j� / REFERENCES
J seph'�1�1. McManus, Preservation Officer
fanning, Building and Zoning Department E'ZLOSUPES
RECOMMENDATION:
It is respectfully recommended that the City Commission uphold the decision of the
Historic and Environmental Preservation Board in designating the Bayside Historic
District by denying this appeal.
BACKGROUND:
At a public hearing on November 19, 1991, the Historic and Environmental
Preservation Board (Board) designated the above -referenced neighborhood as a
historic district pursuant to the designation report. This designation was made
pursuant to all provisions of the newly -revised historic preservation ordinance
(Section 23.1 of the Miami City Code, Ordinance 10875), which gives the Board the
authority to designate historic properties with the right of appeal to the City
Commission.
On December 2, 1991, Ms. Lucia A. Dougherty, Attorney, filed an appeal on behalf
of the owner of one of the properties in the district: the estate of Mary
Elizabeth Whitney Tippett and Cloyce Tippett. The stated grounds for the appeal
and the corresponding rebuttal are, as follows:
1. Criteria for Designation/Proportion of Non -Contributing Structures
As set forth in the designation report to the Historic and
Environmental Preservation Board, this historic district clearly
meets the criteria for designation. Historic districts may qualify
for designation even if some of their components lack individual
distinction, provided, however, that the grouping of buildings
achieves significance as a whole. A majority of the buildings in
the district are contributing structures, and the entire grouping of
buildings is a significant and distinguishable entity.
Page 1 of 3
Sergio Rodriguez, Assistant City Manager January 9, 1992
2. Vacant Lot Non -Contributing
The Prescott property is one of the last intact bayfront estates in
Northeast Miami. The vacant lot adjacent to the Prescott House is
an integral and contributing part of both this estate and the
historic district because it provides the open space associated with
an estate character, and once served as a golf course for the
Prescott Estate.
Further, this (and other) vacant lot(s) could continue to be
contributing with new development of appropriate scale and
character. The only way that this (or other) vacant lot(s) could
become non-contributing is by allowing inappropriate new development
to intrude as, for example, by denying designation of this District.
3. Prescott House is Larger than/Different from Remainder of District
The Prescott House at 7101 N.E. loth Avenue is a focal point of the
Bayside Historic District and may, in fact, be the most significant
property in Bayside. The Prescott House was the winter home of
Samuel J. Prescott of Washington, D.C., who subdivided and developed
the northern part of the Bayside Historic District adjacent to his
house. The size of the Prescott House and its relationship to the
remainder of the District are a direct result of the actions of
Samuel J. Prescott.
Redrawing the proposed district boundaries
would be completely arbitrary, and would
preservation standards by separating a
property from its planned environs.
4. Statutory Designation Procedures
to exclude this property
violate accepted historic
significant contributing
The Board carefully followed all procedural requirements for
designation, as set forth in Section 23.1-4 of the Miami City Code.
This included conducting a preliminary evaluation on February 20,
1990, preparing a designation report, and conducting a public
hearing, with appropriate notice, on November 19, 1991.
5. Due Process
All property owners had ample time to consider the effects of
designation and make any necessary preparations. During the three
years prior to the hearing, the Bayside Residents Association
informed all property owners on numerous occasions of the proposed
designation through meetings and newsletters distributed to everyone
in the district.
Page 2 of 3
.0 %
Sergio Rodriguez, Assistant City Manager January 9, 1992
On February 20, 1990, the Board conducted a preliminary evaluation
and authorized preparation of a designation report. Prior to the
November 19, 1991 hearing, a) notice was published in the Miami
Herald; b) notices were sent to individual property owners within
the proposed district and 375 feet outside (the same notice
informed residents of an informational meeting conducted by staff on
November 18 at Legion Memorial Park Clubhouse ); and c) signs giving
notice were posted throughout the proposed district. The Board
approved the designation in a public hearing on November 19, 1991.
This appeal today affords affected property owners another
opportunity to exercise their rights to a fair hearing.
6. Undue Economic Hardshi
The mere act of designation does not create an economic hardship.
The U.S. Supreme Court has ruled that historic preservation
ordinances do not constitute a taking if they substantially advance
legitimate state intereslt� and do not deny an owner an economically
viable use of his land.— The only way an undue economic hardship
could be created is if the Historic and Environmental Preservation
Board were to unreasonably deny (at some later date) an application
for a Certificate of Appropriateness to modify or develop the
property. The applicant would be protected at that time by an
appeal to the City Commission.
7. Compliance with Florida Statutes
Chapter 166.043 F.S. constrains a municipality from imposing price
or rent controls on private property. Neither the historic
preservation ordinance nor the designation of this property purports
to impose price or rent controls. Quite to the contrary, it is
hoped that one of the indirect effects of historic designation is to
enhance property values. No conflict exists with Chapter 166.043
F.S.
The stated grounds for this appeal are without merit.
z/Penn Central Transportation Co. vs. New York Cit
438 U.S. 104 1978
Page 3 of 3
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LUCtA A. DOCGHERTY
305-579.0603
December 2, 1991
VIA HAND -DELIVERY
Ms. Gloria Fox, Chief
Hearing Boards
City of Miami
275 N.W. 2nd Street
Miami, Florida 33128
Re: Appeal of Bayside Historic District Designation
Dear Gloria:
This letter constitutes an appeal by the Estate of Mary Elizabeth
Whitney Tippett and Cloyce Tippett, owners of 7101 N.E. loth Avenue
and the adjoining lot, which properties are included in the
designation of the Bayside Historic District made by the Miami
Heritage Conservation Board on November 19, 1991. The appeal is
based on the following:
1. This entire "Bayside Historic District" has such a proportion
of non-contributing structures that it does not meet the
criteria for an historic district.
2. The vacant lot which is owned by the appellant is not a
contributing property.
3. The proposed district boundaries should be amended to exclude
these properties, which are the only large Bayside properties
in the district and are different in many respects from the
remainder of the district.
4. The City did not follow the statutory designation procedures
in designating this property.
5. The appellants were denied due process since the Heritage
Conservation Board did not permit appellants ample time to
secure appropriate experts and studies with respect to this
designation.
GREENBERG. TRAURIG, HOFFMAN. LIPOFF, ROSEN & QUENTEL, P.A. `
1221 BRiCKELL AVENUE MIAMI. FLORIDA 33131 305-579.0500 FAx 305-579-0717
MIAMI FORT LAUDERDALE WEST PALM BEACH
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December 2, 1991
Page 2
6. The inclusion of this property in the Historic District
constitutes an unreasonable or undue economic hardship on the
appellants.
7. Neither the procedure for the adoption of No. 10875 nor the
designation of the subject property as an historic district
comports with Chapter 166.043, Florida Statutes.
Our firm's check in the amount of $650.00 is tendered herewith.
Please advise when this appeal will be scheduled.
Sincerely,
.---
Lucia A. Dougherty
LAD/ jhd
cc: Mr. Joseph McManus, Preservation Officer
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GREENBERG TR.AURIG
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BAYSIDE
HISTORIC DISTRICT
Designation Report
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City of Miami
REPORT OF THE CITY OF MIAMI PRESERVATION OFFICER
TO THE HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD
ON THE POTENTIAL DESIGNATION OF
BAYSIDE HISTORIC DISTRICT
AS A HISTORIC DISTRICT
Prepared by Miguel Seco
Bayside Residents Association
Prepared by
reservation Officer
Passed and
Adopted,
As Amended, on November 19, 1991
Resolution No.,-EPB-91-39
Approved by
UrMi-rman, Historic and
Environmental Preservation oard
L�7
CONTENTS
Page
I. General Information
3
II. Significance
III. Description
10
IV. Planning Context
12
V. Bibliography
13
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-2-
1
I. GENERAL INFORMATION
Pistoric Name:
Elmira, Baywood, Acadia, Washington Place
Current Name:
Bayside Historic District
Location:
The area generally bounded by the rear lot lines between N.E. 72nd
Street and N.E. 72nd Terrace on the north; Biscayne Bay and N.E. 7th
Court on the east; N.E. 69th Street east of N.E. 7th Court (extended)
and the rear lot lines between N.E. 67th Street and N.E. 68th Street
west of N.E. 7th Court on the south; and the rear lot lines of
properties fronting on Biscayne Boulevard on the west.
Present Owner:
Multiple Owners - complete list of owners is available in the Planning,
Building and Zoning Department.
Pracnnt 11ea•
Residential
Zonina District:
R-1
Tax Folio Numbers:
Multiple numbers - complete list of folio numbers is available in the
Planning, Building and Zoning Department.
Boundary Description:
The boundary of the Bayside Historic District is shown as the heavy line
on the attached map entitled "Bayside Historic District - Site Plan."
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Cldssif':ation:
Historic District
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BAYSIDE6
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HISTORIC DISTRICT
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BAYS I DE �
HISTORIC DISTRICT
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SIGNIFICANCE
Statement of Sionificance:
The Bayside Historic District is significant in the historical,
— cultural, and architectural heritage of the City of Miami. This
neighborhood reflects the City's development from the formative years of
the early 1900s through the mid 1940s. Once a part of the pioneer
settlement of Lemon City, Bayside contains the oldest intact community
in Northeast Miami, as well as one of this area's last remaining
bayfront estates. The visual composition of the district's buildings
represents a diversity of architectural styles, including Frame
Vernacular, Mediterranean Revival, Art Deco, and Streamline Moderne.
From its onset, Bayside was the home of many prominent residents who
played significant roles in the business life of both Lemon City and
Miami.
Bayside is comprised of four distinct subdivisions which were platted
between 1909 and 1925, although the area itself was first settled in the
late nineteenth century. These subdivisions include Elmira (N.E. 68th
Street), which was platted in 1909; Acadia (N.E. 70th Street), which was
platted in 1915; Baywood (N.E. 69th Street and the south side of N.E.
71st Street), which was platted in 1921 and added to in 1924; and
Washin ton Place (N.E. 72nd Street and the north side of N.E. 71st
Street , which was platted in 1925.
In 1909, William B. and Fred C. Miller (not related) subdivided a seven
acre bayfront lot on today's N.E. 68th Street. The Millers had come to
Florida in the late 1880s from Elmira, New York and had developed Elmira
Farms near Arch Creek. Their new subdivision was named Elmira, and
oolitic limestone gates announced the entrance to the new community.
The Millers sold the lots for $100 each, mostly to Elmira families.
Families often purchased two or more lots to allow room for both a house
and fruit grove. Residents had access to the bay, where a dock,
boathouse, wharf, and large launch, the Elmira, were provided. One of
the houses in the community was deeded to the Elmira Club Company, a
nonprofit social club comprised of subdivision residents.
While much of what was Lemon City has been engulfed by later
developments, Elmira has remained virtually intact. Although many of
its houses have deteriorated, and newer buildings have been added, the
street retains much of its early character. Elmira is characterized by
its excellent collection of Frame Vernacular buildings, many of which
were inspired by Northern architectural styles. The Elmira Club at 742
N.E. 68th Street, for example, has Dutch Colonial Revival influences,
while other houses display classical details. The majority of houses
were constructed in the 1910s.
�1 p
The Acadia subdivision was platted in 1915 by the Realty Securities
Corporation and George E. Merrick. Although the subdivision evokes the
memory of Longfellow with such names as Acadian Way, Evangeline Circle,
Tropical Trail, and Druid Walk, the houses developed here are distinctly
Mediterranean Revival in influence. This is due perhaps to the fact
that only two houses were constructed prior to 1925. Development took
off during the Boom years of the mid 1920s, however, when Wykoff and
Estes Builders constructed an outstanding cluster of large, two-story
Mediterranean Revival style houses near the eastern end of N.E. 70th
Street.
The south side of N.E. 71st Street was platted in 1921 by the Krames-
Corlett Company as a part of the Baywood subdivision. In 1924, N.E.
69th Street was platted as the First Addition to Baywood by Annie H.
Post of St. Lucie County. These areas were developed primarily between
the late 1920s and the mid 1940s.
The last subdivision to be subdivided was Washington Place, which was
also developed between 1925 and the mid 1940s. Samuel J. Prescott, who
platted the subdivision in 1925, had constructed his own winter home at
7101-N.E. loth Avenue some years before. The house remains today as one
of the last intact bayfront estates in Northeast Miami. The estate once
featured a recreational golf course for residents and guests. Prescott
was founder of the firm of Samuel J. Prescott Co., Inc., building
contractors, which developed several significant buildings in downtown
Washington, D.C. Prescott was chairman of the board of the Second
National Bank of Washington, D.C., president of the Master Builders
Association, the Builders and Manufacturers Exchange, and the Prescott
Farms Company of New Hampshire.
In addition to its pioneer residents from Elmira, the Bayside Historic
District has been home to many prominent individuals throughout its
history. Many of its residents founded and maintained thriving
businesses in the Lemon City/Little River commercial district. Fred C.
Slater was manager of the Duval Jewelry Company, forerunner of Zales
Jewelry. Alex Donn cofounded the Exotic Gardens, one of Miami's oldest
florists. The Honorable Arthur Patrick Cannon served as a U.S.
Representative from 1939 to 1947.
Houses constructed in Bayside reflect the diversity, direction, and
taste of individual residents as well as the architectural eclecticism
prevalent in the early twentieth century. The earlier buildings in the
district are Frame Vernacular, with several examples of early bungalows.
Houses built in the 1920s are generally Mediterranean Revival in style,
while structures built in the 1930s and 1940s are frequently Art Deco.
Bayside also features a number of excellent examples of other
architectural styles, including Mission, Streamline Moderne, and Florida
Ranch. Other structures, best described as Masonry Vernacular, add to
the area's architectural diversity.
I
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Buildings in the district utilize a variety of local materials, such as
keystone and oolitic limestone, as well as decorative tropical motifs.
Prevalent motifs which appear in wrought iron screen doors and precast
concrete vents include stylized floral and wave designs, palm trees,
egrets, and sunbursts. Several houses feature elaborate garage doors
exhibiting flamingo, cactus, and bull's eye designs.
The Bayside Historic District remains today as an intact, cohesive
neighborhood. Despite the number of post-1941 buildings, Bayside
retains a high level of historic and architectural integrity. This is
due, in part, to the fact that most later buildings are not intrusive,
but respect the earlier structures in scale, setback, and materials.
Relationship to Criteria for Designation:
As stated above, -the Bayside Historic District has significance in the
historical and architectural heritage of the city; possesses integrity
of design, setting, materials, workmanship, feeling, and association;
and meets the following criteria for designation:
1. Are associated in a significant way with the life of a person
important in the past.
j Many prominent and influential citizens of early Miami resided in
what _is now known as the Bayside Historic District. These
individuals have been important in such fields as commerce,
community development, and government.
3. Exemplify the historical, cultural, political, economic, or social
trends of the community.
The Bayside Historic District exemplifies the historical development
of Miami's residential neighborhoods from the first decade of the
twentieth century until the mid 1940s.
4. Portray the environment in an era of history characterized by one or
more architectural styles.
The Bayside Historic District reflects the evolution of
architectural styles that have served to characterize Miami's
residential neighborhoods from the early 1900s to the mid 1940s.
The neighborhood contains fine examples of Frame Vernacular,
Mediterranean, Art Deco, and Streamline Moderne style buildings.
III. DESCRIPTION
Present and Original Appearance:
The Bayside Historic District is a bayfront neighborhood of single
family houses in Northeast Miami. Located east of Biscayne Boulevard,
the area contains 208 houses. Virtually every prevalent architectural
in Miami is represented in Bayside, including Frame Vernacular,
Mediterranean Revival, Mission, Art Deco, Streamline Moderne, Masonry
Vernacular, and Florida Ranch.
Bayside is comprised of four subdivisions that were platted between 1909
and 1925. The primary streets in each subdivision run in an east -west
direction, with few north -south avenues bisecting the neighborhood.
Access to Bayside today is available only at the intersections of
Biscayne Boulevard and N.E. 68th and 69th Streets. With the exception
of N.E. 69th and 71st Streets, which contains tree -lined medians, most
streets are narrow in width. The eastern end of N.E. 70th-Street, for
example, is one of the narrowest in the City. Most streets have no
curbs, which lends a more casual feeling to the area.
A majority of houses in the district were constructed between 1909 and
1941, the area's major period of development. The post-1941 buildings
generally respect the architectural character of the district.
The majority of buildings in the district have been altered. Typical
alterations include the installation of contemporary windows, doors,
roofing, awnings, and fences and the addition and/or enclosure of
porches, garages, and porte-cocheres. Several houses have been more
significantly altered by the removal of important architectural
features. Despite these alterations, however, the original character,
massing, and setback of most houses within the district has not changed.
Bayside's narrow streets were once consistently lined with Jamaican Tall
coconut palms and native underplantings. Most of the palms were
decimated in the 1970s by lethal yellowing. Today, through neighborhood
efforts, new palms and other native species are being planted to
recapture the area's original tropical ambience.
Contributing Structures and/or Landscape Features:
Contributing structures are indicated on the attached map. Contributing
landscape features include all trees subject to the provisions of
Chapter 17 of the Miami City Code.
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BAYSIDE40 00
HISTORIC DISTRICT
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contributing
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IV. PLANNING CONTEXT
Present Trends and Conditions:
The Bayside Historic District is
detached, single-family houses.
most part, and the majority
deterioration, however, do exist,
the district.
a stable residential neighborhood of
The houses are owner -occupied for the
are well cared for. Pockets of
particularly in southern portion of
The .neighborhood is flanked by other single family areas, with the
exception of the commercial development on Biscayne Boulevard on the
west and the multi -family, high-rise development on the southeast.
The Bayside Residents Association is an active neighborhood group that
monitors neighborhood activities and lobbies for improvements. The
association represents the entire Bayside area, which also includes N.E.
67th Street. Three recent projects have been the focal point of the
group's efforts. These have included the rezoning of a parcel of land
on Biscayne Bay south of N.E. 70th Street for park use. The second has
been the installation of barricades on N.E. 70th, 71st, and 72nd Streets
immediately east of Biscayne Boulevard in an effort to reduce crime in
the area. The final project has been the gathering of research
necessary to document the historic significance of the neighborhood in
order to be eligible for historic district designation.
The Bayside Residents Association is also working closely with the
Northeast Task Force in an effort to overcome the problems that are
common to all neighborhoods within Northeast Miami. Focal points have
included crime prevention and safety, code enforcement, public
relations, economic development, and beautification.
Preservation Incentives:
The development of preservation incentives for single family residential
areas is one of the most difficult to address. Without either a State
constitutional amendment to allow property tax abatement or a grant
and/or loan program for rehabilitation, there are few incentives that
would be meaningful to homeowners. Although the City of Miami will
provide technical assistance to property owners, no resources are
available for grant assistance.
The City will also continue to support the Bayside Residents Association
and the Northeast Task Force in efforts to revitalize the neighborhood.
In Bayside, increased code enforcement may provide the most visual
impact on the area.
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V. BIBLIOGRAPHY
"Acadian Homes for Sale in Acadia." Promotional brochure. Copy on file
in City of Miami Planning, Building and'Zoning Department, n.d.
Dade County, Florida. Community and Economic Development, Historic
Preservation Division. Dade County Historic Survey, Site Inventory
Files, Miami, Florida.
Hopkins, G. M. Plat Book of Greater Miami, Florida and Suburbs.
Philadelphia: G. M. Hopkins Co., 1925, 1936, 1940, 1948.
Metropolitan Dade County. From Wilderness to Metropolis. Miami:
Metropolitan Dade County, 1982.
Miami, Florida. Planning, Building and Zoning Department. Building
Permits.
Miami, Florida. Planning, Building and Zoning Department. Plumbing
Permits.
Miami, Florida. Planning, Building and Zoning Department. Real
Property Records.
Miami, Florida. Public Works Department. Plat Books.
The Miami Herald. Real Estate Advertisements.
Peters, Thelma. Lemon City: Pioneering on Biscayne Bay 1850-1925.
Miami: Banyan Boo s, Inc., 1976.
Polk, R. L. R. L. Polk and Company's Miami City Directory.
Jacksonville, Florida: R. L. Polk and Co., 1922-1938.
i E _ q
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MEMORANDUM
Age`. Item No. 7(b)(2)
TO Honorable Mayor and Members, DATE May 7, 1991
Board of County Commissioners
Robert A. Ginsburg
FROM Dade County Attorney
:unjacT Attorney General's
opinion on proposed
ordinances for local
zoning appeals boards
1
Several proposed ordinances creating local zoning appeals
boards have been prepared by our office at the request of
individual commissioners. These proposals are scheduled to be
reviewed by the Internal Management Subcommittee on May 14, 1991.
We have recently received a response to our request for an
Attorney General's Opinion relating to these proposals. Attached
please find a copy of that opinion.
R bert A. Ginsbur
RAG:se
Attachment
'submitted into the public
rec
°rd in co:�nection vvitll
item f-7 -
----L_
T`atiy Hirai
City Clerk
m
r1j
aF t11E /1!�
STATE OF FLORIDA
orricE or ATTORNEY GENERAL
RoBEBT A. BUTTERWORTH
April 16, 1991
Mr. Robert A. Ginsburg
Dade County Attorney
Suite 2810
Metro -Dade Center
111 Northwest 1st Street
Miami, Florida 33128-1993
Dear Mr. Ginsburg:
Submitted into the public
.ti
c
c
�
r r
record in connection with 91-24
item a on 211 /1�L
Matty Hirai
City Cleric
You have asked on behalf of the Dade County Board of County
Commissioners the following:
May the Dade County Board of County Commissioners
delegate its zoning authority to zoning appeals
boards?
In sum:
The Dade County Board of County Commissioners may
not delegate its legislative authority to zone
property. The board, however, may delegate powers
to enforce zoning laws to zoning appeals boards if
instrument conveying such authority provides
meaningful standards and guidelines for the boards
to follow in exercising such powers.
You state that Dade County proposes to establish several zoning
appeals boards to hear and decide requests for district boundary
changes, as well as, all requests for variances and special
exceptions. The materials which you have provided with your
request show that a single zoning appeal board is in existence,
but will be replaced with several boards.
Zoning is a legislative power 1which may not be delegated to an
administrative board or body. The execution of zoning plans,
however, may be carried out by an administrative board or body,
if the instrument conveying such power contains meaningful
standards and guidelines for the board or body to follow in
exercising its power.
Submitted into the:)lic
record in connection with
Mr. Robert A. Ginsburg 91-24
Page Two item ?,7• 1 L pn 2 ( , 2 ,
Jtgaity T-iirc.:i
City Clerk
You cite to Part II, Ch. 163, F.S., as well as Dade County's
Comprehensive Development Master Plan, as providing the necessary
guidelines and standards to allow delegation of the county
commission's zoning power to the proposed zoning appeals boards.
As noted above, however, the "meaningful standards and guide-
lines" must be contained in the instrument which conveys the
powers to the administrative board or body. It does not appear
that Part II, Ch. 163, F.S., or Dade County's master plan convey
zoning enforcement powers to the proposed zoning appeals boards.
While land use planning and zoning are both exercises of the
sovereign power of � governing body, they serve distinct and
different purposes. Land use planning as mandated under a
local comprehensive plan is to control and direct the use and
development of property within a municipality or county. Zoning
is the means by which the comprehensive plan is implemented and
involves the exercise of discretionary powers within the limits
imposed by the comprehensive plan.
In Machado v. Musgrove,5 the court concluded that Part II,
Ch. 163, F.S., and the local comprehensive plans which it man-
dates, are not zoning laws. Rather, they operate as limita-
tions on a local government's otherwise broad zoning powers.
This office has previously recognized that municipalities may
exercise home rule powers to enact zoning ordinances which are
consistent with the provisions of Part II, Ch. 163, F.S. A
comprehensive plan legislatively sets a zoning norm for each
zone, with the only allowed zoning changes being those to
conform property to the plan. In the event proposed zoning
changes are inconsistent with the comprehensive plan, then the
proposed changes must be denied or the governing body must make
a rolls-;• decision to alter the comprehensive plan 1?gisiatively
to allow the otherwise nonconforming zoning change.
The proposed ordinance creating six zoning appeals boardslo
expresses their purpose as
facilitating the zoning powers granted by the Home
Rule Charter to the Board of County Commissioners,
and to provide a board to hear, consider and review
appeals from the zoning regulations or decisions
of an administrative officials [sic], and to take
appropri��e action as in this article provided and
limited.
The boards are advised that the purpose of zoning and regulations
is to implement a comprehensive plan to: lessen highway conges-
tion; secure safety from fire, panic and other dangers; promote
r
J
4 Submitted into I public
record in connection with
Mr. Robert A. Ginsburg item P �- 18 rr� 91- 24
Page Three Z. on -
Nlatty Hirai
Cii.y Clerk
health, safety, morals, convenience and the general welfare;
provide adequate light and air; prevent overcrowding of land and
water; avoid undue concentration of population; and facilitate
adequate provisions of transportation, water, sewerage, schools,
parks and other public requirements, giving reasonable consider-
ation to the character of the district and its suitability for
particular uses, conserving the value of buildings and property,
and encouraging the mostl:pppropriate use of land and water
throughout the district. Further, zoning appeals boards are
authorized to hear and grant or deny applications to increase
or decrease the minimum square footage requirements, provided
the change is compgrable to the requirements for the area or
surrounding area. They may hear and recommend to the board
of county commissioners for approval or denial applications for
changes in zoning regulations and hear andlgrant applications
for use variances under specific conditions.
In addition, it is proposed that the zoning appeals boards will
have the authority to hear and grant or deny applications for
district boundary changes on individual parcels of land or on a
neighborhood or area -wide basis. The selection of boundary
lines for zoning districts, however, involves the exercise of the
legislative powers of the governing body and has been identified
as "a problem pecul�prly within the power of the legislative body
of a municipality." It would appear, therefore, that the power
to change zoning district boundary lines is a zoning power which
may not be delegated.
Thus, while the authority of the county commission to establish
or alter zoning district boundary lines is a legislative function
which may not be delegated, the commission may delegate authority
to enfor^e zoning laws to the extent the proposed ordinance pro-
vides meaningful guidelines or standards governing the exercise
of such powers. Whether the guidelines are meaningful in a par-
ticular situation where the boards are exercising their powers,
however, is a judicial determination which may not be made by
this office.
�3�
Robert A. Butterworth
Attorney General
RAB/tgk
aftft
040
Submitted into'! pubic
Mr. Robert A. Ginsburg record in connection with 91-24
Page Four item P 2 - � � on i 2
Matty Hirai
1 See, State v. Roberts, 419 So.2d 1164, 1��y qe�=C.A. Fla.,
1982), citing County of Pasco v. J. Dico, Inc., 343 So.2d 83
(2 D.C.A. Fla., 1977) (power to zone involves legislative func-
tions which cannot be delegated under constitutional principles
of separation of powers).
2 See, D'Alemberte v. Anderson, 349 So.2d 164, 169 (Fla. 1977).
See also, Askew v. Cross Key Waterways, 372 So.2d 913, 925 (Fla.
1976) (fundamental and primary policy decisions shall be made by
members of the Legislature, while administration of legislative
programs must be pursuant to minimal standards and guidelines
ascertainable by reference to the act establishing the program).
3 Machado v. Musgrove, 519 So.2d 629, 631 (3 D.C.A. Fla.,
1987).
4 519 So.2d 629 at 632.
5 See, footnote 4.
6 Section 6(f), Art. VIII, State Const., confers upon Dade
County all powers conferred by general law upon municipalities.
7 See, AGO's 86-34 and 85-71.
e Section 163.3194(1)(a), F.S., providing that "[a]fter a
comprehensive plan, or element or portion thereof, has been
adopted in conformity with this act, all development undertaken
by, and all actions taken in regard to development orders by,
governmental agencies in regard to land covered by such plan
or element shall be consistent with such plan or element as
mdoptPd."
9 Machado at 634, citingCity of
y Cape -Canaveral v. Mosher,
467 So.2d 468, 471 (5 D.C.A. Fla., 1985), stating further that
the use of a comprehensive plan as the zoning norm is the only
way to (1) regulate and maintain land use by zones; (2) make
individual zoning changes, which are essentially executive
action, conform to a legislated plan; and (3) avoid arbitrary
"spot zoning" change that permits the use of individual parcels
to depart from a plan.
10 Agenda Item No. 4(g), November 6, 1990, Dade County Board of
County Commissioners.
11 Section 2, Agenda Item No. 4(g),
County Board of County Commissioners,
Code of Metropolitan Dade County.
5
November 6, 1990, Dade
p. 2, amending s. 33-306,
0
E
irli
Mr. Robert A. Ginsburg
Page Five
91- 24
12 Id. at pp. 10,-11, amending s. 33-311, Code of Metropolitan
Dade County I
13 Id. at p. 11.
14 Section 33-312, Code of Metropolitan Dade County, as amended
by Agenda Item No. 4(g), Board of County Commissioners of Dade
County, p. 16, expresses the intent that a zoning appeals board's
derision concerning a requested regulation amendment shall be
considered only a recommendation, which shall be transmitted with
the board's record on the request to the board of county commis-
sioners for final action.
15 Section 33-311(e)(1), Code of Metropolitan Dade County, as
amended by Agenda Item No. 4(g), November 6, 1990, Dade County
Board of County Commissioners, p. 12.
16 Section 33.311 (j), Code of Metropolitan Dade County, amended
by Agenda Item No. 4(g), Dade County Board of County Commission-
ers, p. 13.
17 7 F1a.Jur.2d Building, Zoning, and Land Controls, s. 121, p.
533.
Submitted into the public
record in connection with
item (' Z i L on 2 - 19
_ MaltY• Hirai.
City Clerk
CITY OF SANIBEL v. BUNTROCK Fla. 1073
Cite as, F1a.App., 409 Sold 1073
the present case might be withheld pending
PER CURIAM.
the Supreme Court's disposition in the con-
AFFIRMED. Andrews v. Walton, 400
trolling case, a closer reading of Jollie leads
So.2d 790 (Fla.2d DCA 1981). Contra
us to conclude that the mandate should be
Mackey v. Mackey, 402 So.2d 41 (Fla.3d
withheld during the period for invoking Su-
DCA 1981); Chapman v. Lamm, 388 So.2d
preme Court review in the present case, and
1048 (Fla.3d DCA 1980).
thereafter, if review is sought, pending fi-
nal disposition of such petition by the Su-
preme Court. In reaching this conclusion
DAUKSCH, C. J., and COBB and
we have relied on that portion of Jollie
SHARP, J., goneur
SUrnitted into the public
which indicates that the purpose of this
procedure is to "dispose of the need for
recor coon with
motions [in the DCA] to stay man-
h
T
dates," and that "[i]f review of the refer-
item Z • I G on
enced decision is requested, the parties may
seek consolidation" in the Supreme Court.
MCitty Hirai.
The motion for rehearing and for modifi-
City Cleric
cation of stay is accordingly denied.
Th CITY OF SANIBE
McCORD; LARRY G. SMITH and
WENTWORTH, JJ., concur.
�SKoETRUM8ERS TETEM
Arnet VEREEN, Appellant,
V.
DEPARTMENT OF HEALTH AND RE-
HABIIITATIVE SERVICES on Behalf
of Janice FOLLINS, Appellee.
No. 81-706.
District Court .of Appeal of Florida,
Fifth District.
Dec. 30, 1981.
Rehearing Denied Feb. 16, 1982.
Appeal from Circuit Court, Marion Coun-
ty; Carven D. Angel, Judge.
John S. Lynch and Mary Ann Huey,
Withlacoochee Area Legal Services, Inc.,
Ocala, for appellant.
Charles L. Carlton of Carlton & Carlton,
P.A., Lakeland, and Eugene Johnson, Ocala,
for appellee.
d
e 4 Florida, and
Anne Winterbotham, Joseph nearing,
Arthur Wykoff, Donald Manchester,
William Hagerup, Larry E. Simon, as
successor to Judy Workman, and Louise
Johnson, constituting the Planning
Commission of the City of Sanibel, Flor-
ida, and Bernard J. Murphy, Jr., City
Manager, Appellants,
V.
Robert F. BUNTROCK and Charles R.
Blakely, Jr., and Joyce Blakely,
Husband and Wife, Appellees.
No. 81-499.
District Court of Appeal of Florida,
Second District.
Dec. 30, 1981.
Rehearing Denied Feb. 8, 1982.
Developer brought action challenging
ordinance declaring building moratorium.
The Circuit Court, Lee County, R, Wallace
Pack, J., declared ordinance invalid and di-
rected city to process developer's applica-
tion, and city appealed. The District Court
of Appeal held that municipality was re-
quired to enact ordinance declaring building
moratorium with same formality required
for ordinance w. hick rezones property.
Affirmed.
•
Submitte into the
Public
record
1074 Fla. 409 SOUTHERN REP
Zoning and Planning a 131 • • -
Municipality must enact ordinance de-
claring building moratorium with same for-
mality required for ordinance which rezones
property. West's F.S.A. § 166.041(3)(c)l.
Neal D. Bowen, Sanibel, for appellants.
Robert L. Donald of Pavese, Shields, Gar-
ner, Haverfield, Kluttz & Cottrell, Cape
Coral, for appellees.
PER CURIAM.
In this appeal we hold that a municipality
must enact an ordinance declaring a build-
ing moratorium with the same formality
required for an ordinance which rezones
property.
The City of Sanibel has adopted a com-
prehensive land use plan which includes all
of the traditional aspects of municipal zon-
ing. Appellees Charles and Joyce Blakely
owned land within the city which has a
permitted use of restricted commercial.
They contracted to sell their property to
appellee Robert S. Buntrock contingent
upon his obtaining the appropriate permits
for the development of an office complex.
In the meantime, the city enacted an ordi-
nance placing a one year moratorium on the
issuance of permits and approvals for com-
mercial development. Except for the mora-
torium, Buntrock was in a position to obtain
the requisite permits for the proposed com-
plex. When the city refused to issue him a
1. Section 166.041(3)(c)l. applies to ordinances
affecting less than 5% of the total land area of
a city which was the case here.
2. In adopting the ordinance in question, the
city followed section 166.041(3)(a), Florida
Statutes (1979), which prescribes the ordinary
method for enacting ordinances. However,
this section specifically excepts "rezoning" or-
dinances which must be enacted according to
the procedure prescribed in section 166.-
041(3)(c). Section 166.041(3)(b) authorizes the
adoption of emergency ordinances but stipu-
lates that a municipality cannot use an emer-
gency ordinance to amend a land use plan or
rezone private real property.
3. At one point in its brief, Sanibel contends
that because it accomplishes its land use con-
trol through the vehicle of a comprehensive
- ••+�11
item Z _ on��J�� jt^
` cl- _
ORTER, 2d SERIES Matty Hirai
City Clerk
permit, he filed suit attacking the validity
of the moratorium ordinance. Ultimately
the court declared the ordinance invalid and
directed the city to process Buntrock's ap-
plication.
The basis for the court's ruling was that
the city had not enacted the moratorium
ordinance pursuant to the notice and hear-
ing requirements of section 166.041(3)(c)1.,
Florida Statutes (1979),t that are applicable
to ordinances "which rezone private real
property." 2 The city concedes that it did
not follow the procedure outlined in the
statute but argues that it was unnecessary
to do so because the moratorium ordinance
did not constitute rezoning.3
A number of jurisdictions have decided
this issue. Some •states have held that a
moratorium on the issuance of building per-
mits pending zoning or rezoning may be
accomplished without following the formali-
ties required when the actual zoning or
rezoning takes place. CEEED v. California
Coastal Zone Conservation Commission, 43
Cal.App.3d 306, 118 Cal.Rptr. 315 (1974); A.
Copeland Enterprises, Inc. v. City of New
Orleans, 372 So.2d 764 (La.App.1979); City
of Dallas v. Crownrich, 506 S.W.2d 654
(Tex.Civ.App.1974). Other courts, however,
have struck down similar moratoria because
they were not adopted with the same for-
mality required of zoning or rezoning ordi-
nances. State ex rel. Brodie v. Powers, 168
Conn. 147, 362 A.2d 884 (1975); Lancaster
Development, Ltd. v. Village of River For -
land use plan adopted under the authority of
the Local Government Comprehensive Plan-
ning Act of 1975, section 166.041(3)(c) has no
continuing efficacy in the City of Sanibel., It
points to section 163.3211, Florida Statutes
(1979), which provides that if the Act is in
conflict with other laws relating to local
governments having authority to regulate the
development of land, its provisions "shall gov-
ern unless the provisions of this act are met or
exceeded by other provision or provisions of
law relating to local government." Significant-
ly, however, Sanibel overlooks the fact that the
procedure to be followed in amending a land
use plan involving less than 5% of the total
land area is the same as that set forth in sec-
tion 166.041(3)(c)l. for rezoning. §§ IG3.-
3187, .3184(7)(b), Fla.Stat. (1979).
r
Submitte into the
Public
record 1t, onl,�r+;,...
1074 Fla. 409 SOUTHERN REP
Zoning and Planning a131 r -
Municipality must enact ordinance de-
claring building moratorium with same for-
mality required for ordinance which rezones
property. West's F.S.A. § 166.041(3)(c)1.
Neal D. Bowen, Sanibel, for appellants.
Robert L. Donald of Pavese, Shields, Gar-
ner, Haverfield, Kluttz & Cottrell, Cape
Coral, for appellees.
PER CURIAM.
In this appeal we hold that a municipality
must enact an ordinance declaring a build-
ing moratorium with the same formality
required for an ordinance which rezones
property.
The City of Sanibel has adopted a com-
prehensive land use plan which includes all
of the traditional aspects of municipal zon-
ing. Appellees Charles and Joyce Blakely
owned land within the city which has a
permitted use of restricted commercial.
They contracted to sell their property to
appellee Robert S. Buntrock contingent
upon his obtaining the appropriate permits
for the development of an office complex.
In the meantime, the city enacted an ordi-
nance placing a one year moratorium on the
issuance of permits and approvals for com-
mercial development. Except for the mora-
torium, Buntrock was in a position to obtain
the requisite permits for the proposed com-
plex. When the city refused to issue him a
1. Section 166.041(3)(c)1. applies to ordinances
affecting less than 5% of the total land area of
a city which was the case here.
2. In adopting the ordinance in question, the
city followed section 166.041(3)(a), Florida
Statutes (1979), which prescribes the ordinary
method for enacting ordinances. However,
this section specifically excepts "rezoning" or-
dinances which must be enacted according to
the procedure prescribed in section 166 -
041(3)(c). Section 166.041(3)(b) authorizes the
adoption of emergency ordinances but stipu-
lates that a municipality cannot use an emer-
gency ordinance to amend a land use plan or
rezone private real property.
3. At one point in its brief, Sanibel contends
that because it accomplishes its land use con-
trol through the vehicle of a comprehensive
item z- (_ on -
)RTER, 2d SERIES 144ttY Hirai
City Clerk
permit, he filed suit attacking the validity
of the moratorium ordinance. Ultimately
the court declared the ordinance invalid and
directed the city to process Buntrock's ap-
plication.
The basis for the court's ruling was that
the city had not enacted the moratorium
ordinance pursuant to the notice and hear-
ing requirements of section 166.041(3)(c)1.,
Florida Statutes (1979),t that are applicable
to ordinances "which rezone private real
property." 2 The city concedes that it did
not follow the procedure outlined in the
statute but argues that it was unnecessary
to do so because the moratorium ordinance
did not constitute rezoning.3
A number of jurisdictions have decided
this issue. Some states have held that a
moratorium on the issuance of building per-
mits pending zoning or rezoning may be
accomplished without following the formali-
ties required when the actual zoning or
rezoning takes place. CEEED v. California
Coastal Zone Conservation Commission, 43
Cal.App.3d 306, 118 Cal.Rptr. 315 (1974); A.
Copeland Enterprises, Inc. v. City of New
Orleans, 372 So.2d 764 (La.App.1979); City
of Dallas v. Crownrich, 506 S.W.2d 654
(Tex.Civ.App.1974). Other courts, however,
have struck down similar moratoria because
they were not adopted with the same for-
mality required of zoning or rezoning ordi-
nances. State ex rel. Brodie v. Powers, 168
Conn. 147, 362 A.2d 884 (1975); Lancaster
Development, Ltd. v. Village of River For -
land use plan adopted under the authority of
the Local Government Comprehensive Plan-
ning Act of 1975, section 166.041(3)(c) has no
continuing efficacy in the City of Sanibel. It
points to section 163.3211, Florida Statutes
(1979), which provides that if the Act is in
conflict with other laws relating to local
governments having authority to regulate the
development of land, its provisions "shall gov-
ern unless the provisions of this act are met or
exceeded by other provision or provisions of
law relating to local government." Significant-
ly, however, Sanibel overlooks the fact that the
procedure to be followed in amending a land
use plan involving less than 5% of the total
land area is the same as that set forth in sec-
tion 166.041(3)(c)l. for rezoning. §§ 163.-
3187, .3184(7)(b), Fla.Stat. (1979).
M•
KAYES v. STATE Fla. 1075
Cite as. FIa.App.,
409 Sc2d 1075
est, 84 III.App.2d 395,228 N.E.2d 526 (1967);
zoning act a mere exercise of police pow -
State ex rel. Kramer v. Schwartz, 336 Mo.
er. Specific grants by the legislature al-
932, 82 S.W.2d 63 (1935); State ex rel.
ways limit general grants. The specific
Christian, Spring, Sie►badh & Associates v.
grant of zoning power is conditioned by
Miller, 169 Mont. 242, 545 P.2d 660 (1976);
the provision for notice and public hear -
State ex rel. Fairmount Center Co. v. Ar-
ing. Since the City Commission did not
nold, 138 Ohio St. 259, 34 N.E.2d 777 (1941).
comply with the notice and public hearing
No Florida court has precisely answered
provisions, the ordinance under which the
the question, but two decisions suggest an
petitioner was arrested and convicted was
inclination toward the latter view. In City
invalid.
of Miami Beach v. State ex rel. Fontaine-
183 So.2d at 195.
bleau Hotel Corp., 108 So.2d 614 (Fla. 3d
Neither of these cases involved building
DCA), cert. denied, 111 So.2d 437 (F1a.1959),
moratoria. Yet the implication is clear. If
the city refused to issue a building permit
an ordinance substantially affects land use,
for an addition to the Fontainebleau Hotel
it must be enacted under the procedures
because of the enactment of an emergency
which govern zoning and rezoning. To en -
amendment to the building code establish-
tirely prohibit a person from building upon
ing certain height restrictions.' The owners
his property even temporarily is a substan-
of the hotel contended that the ordinance
tial restriction upon land use. Consequent -
was a zoning ordinance which the city could
ly, it is not too much to ask that a munici-
pass only after notice and a public hearing,
pality follow the same procedures with re -
neither of which had been accomplished
spect to notice and hearing before it puts
with respect to the emergency amendment.
such a moratorium into effect.
The court agreed and declared the ordi-
AFFIRMED.
nance invalid for failure of the city to com-
ply with the notice and hearing provisions
SCHEB, C. J., and HOBSON and
of the zoning enabling act.
GRIMES, JJ., concur.
In Ellison v. City of Fort Lauderdale, 183
So.2d 193 (F1a.1966), the city had enacted
Submitted into the
an ordinance without public notice or hear-
< 7*E
KEYNUMBER Eing
which prohibited the keeping of horses
Ord in eonnectio
on land zoned R-0. An owner of land
within the zone who had been convicted of
item Pz - t on
violating the ordinance attacked the validi-
ty of its enactment. The lower appellate
court upheld the trial court's finding that
Bernard KAYES and Jerry
the challenged ordinance was not a zoning
Palmer, Appellants,
ordinance but rather "an exercise of the
City's general police power relating to
V.
health, morals and general welfare." Id. at
STATE of Florida, Appellee.
194. In reversing the conviction, the su-
Nos. 80-1257, 80-1753.
preme court said:
Clearly the restriction imposed by the
District Court of Appeal of Florida,
ordinance in question is a use regulation.
Second District.
It is true that zoning power is justified
Dec. 30, 1981.
only as an exercise of the general police
Rehearing Denied Feb. 8, 1982.
power but this will not permit a munici-
pality to evade the protections thrown
about the citizen's use of his property by
Defendants were convicted in the Cir-
the legislative limitations imposed on the
cuit Court, Collier County, T. H. Brousseau,
zoning power by the device of labeling a
J., of trafficking in cannabis, and they ap-
Md
Cit`
i
blic
Kit
h
, �,/%n �
—•'
z
t Hirci
Clerk
`� F
i6 Pa. 595 ATLANTIC REPORTER, 2d SERIES
the Act itself has been created for their
protection and benefit. Thus, it is my view
UNITED ARTISTS THEATER CIRCUIT,
that, with regard to innocent and injured
INC., Appellant,
third parties, the insurance company would
1 be bound to honor the liability provisions of
V.
1 the insurance contract and may cancel said
CITY OF PHILADELPHIA, PHILA-
- provisions only pursuant to § 1008.5 of Act
DELPHIA HISTORICAL COM-
78.
MISSION, Appellee.
McDERMOTT, Justice, dissenting.
Through the use of cases from dissimilar
areas of the law, the majority has succeed-
ed in reading into Act 78 the common law
right of rescission, a right which was deter-
mined earlier by this court in, Metropoli-
tan Property and Liability Insurance
Company v. Insurance Commissioner of
the Commonwealth of Pennsylvania and
Bonnie Beck et al., 517 Pa. 218, 535 A.2d
588 (1987), not to have survived the legisla-
ture's passage of that Act. In Beck, id.
our holding that rescission was not a reme-
dy available to the subject Insurer was
aided by the fact that the legislature
passed Act 78 shortly after our Superior
Court determined that the remedy was still
viable. See Safeguard Mutual Insurance
Co. v. Huggins, 241 Pa.Super. 382, 361
A.2d 711 (1976). Similarly, the Statutory
Construction Act' provides certain pre-
sumptions in ascertaining legislative intent.
One of which is that the General Assembly
intends to favor the public interest as
against any private interest. 1 Pa.C.S.A.
§ 1922(5). That "public interest" will now
be ignored as innocent victims are denied
compensation when insurers elect to re-
scind contracts of insurance whenever one
of their insureds, with a previously undis-
closed incident laden driving record, is in-
volved in an accident. It is this result as
we stated in Beck which could be avoided,
and thus the impact of Act 78's cancellation
requirements lessened, if insurers avoid the
practice of providing on the spot coverage
until a driving history is obtained.
Accordingly, I dissent.
w
p SKITMUMRERSYSTEM
T
Submittc,�' i,Zto the public
1. Act of Dm. 6, 1972, No �290 § I
record i l i t ::. D� ion wltil
itemP�:ib
Supreme Court of Pennsylvania.
Argued Dec. 6, 1990.
Decided July 10, 1991.
Reargument Granted Aug. 30, 1991.
Theater owner brought action chal-
lenging city's designation of the theater
property, seeking preliminary injunction
and declaratory judgment that the city his-
toric commission was without authority to
designate the theater building as historic.
The Court of Common Pleas of Philadel-
phia County, No. 3955 April Term 1987,
Charles A. Lord, J., dismissed the appeal
from the commission at No. 1277 C.D. 1987
and quashed the appeal at No. 1985 C.D.
1987. Owner appealed. The Common-
wealth Court, Crumlish, Jr., President
Judge, 558 A.2d 155, affirmed. Owner ap-
pealed. The Supreme Court, No. 48 E.D.
Appeal Docket 1990, Larsen, J., held that
provisions in city's code authorizing histor-
ic designation of private property without
consent of the owner were unfair, unjust
and amounted to unconstitutional taking
without just compensation.
Reversed.
Cappy, J., concurred with opinion in
which Nix, C.J., and McDermott, J., joined.
1. Eminent Domain e-2(5)
Provisions in city's code authorizing
historic designation of private property
without consent of the owner were unfair,
unjust and amounted to unconstitutional
taking without just compensation; after
historic designation, law required that
,`!fatty Hirai
UNITED ARTISTS v. HISTORICAL CONVN Pa. 7
Cite as 393 A2d 6 (PR. 1"0
property be maintained in its present state
of Chestnut St., Inc., the predecessor own -
IT.
at the owner's expense unless the city his-
er of the Boyd Theater, that it, the Com-
torical commission granted permission for
mission, pursuant to Section 14-2007 of the
a change, thus city was forcing owner to
Philadelphia Code, planned to consider, at a
bear a public burden. Const. Art. 1, § 10.
public meeting scheduled for April 30,
1986, the proposed designation of the Boyd
2. Eminent Domain 4-2(5)
Theater as historic. The Commission's let -
Where exercise of police power con-
ter explained its views as to the benefits,
cerns restrictions on use of private proper-
limitations and responsibilities which derive
ty, such as regulation of property designat-
from the ownership of property which is
ed as historic, it is subject to constitutional
designated historic. The then owner, Sam -
limitations. Const. Art. 1, § 10.
eric Corporation, investigated the Commis-
sion's proposal of historic designation and
did not favor the idea. Sameric Corpora -
Richard A. Sprague, J. Shane Creamer,
tion was able to obtain a continuance of the
Hugh J. Bracken, Pamela W. Higgins, Phil-
proposed consideration of its building for
adelphia, for United Artists Theater Cir-
historic designation at the April 30, 1986
ial-
cuit, Inc.
meeting. Subsequently, the matter was
ter
Maria L. Petrillo, Chief Asst. City Sol.,
continued on five additional occasions.
ion
Katherine L. Niven, Chief Counsel, for ami-
Eventually, consideration of the proposed
n1s-
,Wcus—Penna. Historical and Museum Com'n.
historic designation was rescheduled for
toV
t=
"' m
the Commission's meeting of January 28,
ric;�
,' ;+
•-+ Before NIX, C.J., and LARSEN,
V
1987. Sameric Corporation responded by
FLAHERTY, McDERMOTT, ZAPPALA,
filing two consecutive lawsuits seeking to
'87, a
b `
d - :TAPADAKOS and CAPPY, JJ.
enjoin the Commission from holding a
9 al
0 [�
.
+ V
meeting on the proposed designation, both
lawsuits the injunc-
OPINION OF THE COURT
of which ended without
D
4
a
q 0 LARSEN, Justice.
tion Sameric Corporation sought. There-
on-4� 6
after, on March 25, 1987, the Commission
enkF4
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In this appeal of United Artists Theater
Circuit, Inc., the question is whether the
appellee, Philadelphia Historical Commis-
sion (Commission), acting pursuant to the
"Historic Buildings, Structures, Sites, Ob-
jects and Districts" provisions of The Phila-
delphia Code (Section 14-2007) in designat-
ing the appellant United Artists' Boyd The-
ater building as historic is in violation of
the constitutional rights of the appellant.
The Commonwealth Court found no consti-
tutional violation and affirmed the Philadel-
phia County Common Pleas Court's order
dismissing the action. We disagree. After
review, we find that by designating the
theater building as historic, over the objec-
tions of the owner, the City of Philadelphia
through its Historical Commission has
"taken" the appellee's property for public
use without just compensation in violation
of Article 1, Section 10 of the Pennsylvania
Constitution and we, therefore, reverse.
By a letter dated March 28, 1986, the
Commission notified Sameric Corporation
met, denied Sameric Corporation's motion
for a further continuance, presumedly pro-
ceeded to hear evidence and argument, and
then voted to designate the Boyd Theater
as historic. On that same day, Sameric
Corporation returned to court requesting
an order that the historic designation be
vacated and the matter be rescheduled at a
Commission meeting held no earlier than
April 2, 1987. Sameric Corporation's re-
quest was granted and the proposal to des-
ignate the Boyd Theater as historic was
rescheduled by the Commission for consid-
eration at a public meeting on April 2, 1987.
A public meeting was held before the
Commission on April 2, 1987, commencing
at 3:30 p.m. The meeting was called to
-order by the Chairman, Edward A. Mont-
gomery, Jr. who recognized Commissioner
David Brownlee. Commissioner Brownlee
took the floor and, specifically referring to
the unanimous recommendation of the Des-
ignation Committee, raised the matter of
the proposed historic designation of the
EF
Er
8 Pa. 595 ATLANTIC REPORTER, 2d SERIES
Boyd Theater. Commissioner Brownlee
then gave testimony and argument in sup-
port of the Commission's proposal to desig-
nate the Boyd Theater as historic. (R.R.,
pps. 53a-63a). Commissioner Brownlee ad-
vanced three reasons in support of the rec-
ommendation of historic designation: (1)
the building is an important example of art
deco architecture; (2) the building is the
work of an important Philadelphia architec-
tural firm; and (3) the building as a movie
palace represents a significant phase in
American cultural history and in the histo-
ry of Philadelphia. (R.R., pps. 53a-54a).
Following Commissioner Brownlee's tes-
timony, Commissioner Randall Baron of-
fered a slide presentation of the Boyd The-
ater property and furnished additional tes-
timony and argument in favor of the rec-
ommendation to designate the Boyd The-
ater as historic. (R.R., pps. 63a-64a). The
testimony of Commissioner Brownlee along
with the slide presentation and testimony
offered by Commissioner Baron constituted
the "case" for historic designation present-
ed "by the Commission",' to the Commis-
sion. (R.R., p. 64a). Commissioners
• Brownlee and Baron then answered ques-
�ti* posed by their fellow Commissioners
ii-R. pps. 64a-80a), and by counsel for the
o�c�,►ler, Sameric Corporation (R.R., pps.
�309a).
CJ .«-
4.Me are troubled by a procedure where the
r—+ mmission, apparently through a designation
committee, recommends properties for histori-
cal designation, provides the testimony and evi-
dence in support of its recommendation, argues
the case for historical designation through one
or more of its commission members, and then
decides whether the property it recommended
should be so designated. There is an obvious
lack of due process in such a procedure. The
property owner, whose property rights are put
in jeopardy by the Commission's proposal of
historical designation, is entitled to a neutral
and detached arbiter in the first instance. Ward
v. Village of Monroeville, 409 U.S. 57, 93 S.Ct.
80, 34 LFd2d 267 (1972). Under the circum-
stances, the Commission is hardly a neutral and .
detached arbiter. To the contrary, the Commis.
sion is a determined advocate.
2. Mr. Reider of the award -winning firm Evan.
cash Reider Architects testified, inter alia, that
of a list of eighteen features which distinguishes
the art deco style, only five of those features are
incorporated in the exterior of the Boyd The.
Mr. Merton Shapiro of Sameric Corpora-
tion gave testimony opposing the proposed
historic designation. Also giving testimo-
ny in opposition to the proposed designa-
tion was Emanuel Reider an architect.2 At
the conclusion of the meeting, the Commis-
sion voted for historic designation. By let-
ter dated April 14, 1987, the Commission
officially notified the owner, Sameric Cor-
poration, that the Boyd Theater property
had been designated historic.
Sameric Corporation reacted to the notice
of designation by filing a suit in equity and
a petition for a preliminary injunction in
the Court of Common Pleas of Philadelphia
County. Sameric's suit, inter alia, sought a
declaratory judgment that the Commission
was without authority to designate its
Boyd Theater building as historic. The tri-
al court properly treated the suit and peti-
tion as an appeal pursuant to the provisions
of the Local Agency Law, 2 Pa.C.S. § 752,
and the matter was submitted to the lower
court upon the record of the meeting be-
fore the Commission and the briefs of
counsel? The lower court dismissed the
appeal. Subsequently, upon further ap-
peal, the Commonwealth Court affirmed.
We granted appeIlant's petition for allow-
ance of appeal to consider, inter alia, the
constitutionality of the Commission's ac-
tions.' While this matter was pending in
ater. (R.R, p. 120a) He further testified that
the architectural firm which designed the Boyd
Theater was not known for its an deco work.
(R.R., p. 121a) Additionally, it was his opinion
that the theater was a mediocre building. (R.R.,
p. 122a)
3. Prior to the hearing in the lower court, the
parties agreed that the Commission was a local
agency and Sameric's suit in equity and petition
for an injunction should be treated as an appeal
from the Commission's decision pursuant to the
provisions of the Local Agency Law, 2 Pa.C.S.
§ 752.
"If a complaint in the nature of equity ... is
commenced against a government unit ..., ob.
jecting to a governmental determination ..
where the proper mode of relief is an appeal
from the determination of the government unit,
... the papers whereon the process ... was
commenced shall be regarded and acted on as
an appeal from such determination...... 42
Pa.C.S. § 708.
4. The standard of review in an appeal from a
determination of a local agency is: "[A) review.
� • : t .1, t 1
0
n
"
U
�
1
•a
O
U
UNITED ARTISTS v. HISTORICAL COWN Pa. 9
Clte u S9S A.2d 6 (Pa. 1991)
this court, the Boyd Theater was sold by elderly, long-term, and other residents
Sameric Corporation to United Artists and living within those districts;
the new owner, United Artists, was substi- (4) afford the City, interested persons,
tuted as the appellant. historical societies and organizations the
Article I, Section 27 of the Pennsylvania opportunity to acquire or to arrange for
the preservation of historic buildings,
Constitution provides as follows: structures, sites and objects which are
The people have a right to clean air, pure designated individually or which contrib-
water, and to the preservation of the ute to the character of historic districts;
natural scenic, historic and esthetic val- (5) strengthen the economy of the City
ues of the environment. Pennsylvania's by enhancing the City's attractiveness to
natural resources are the common prop- tourists and by stabilizing and improving
erty of all the people, including genera- property values; and,
Lions yet to come. As trustee of these (6) foster civic pride in the architectural,
resources, the Commonwealth shall con- historical, cultural and educational ac-
serve and maintain them for the benefit complishments of Philadelphia.
of all the people.
Pursuant to that constitutional provision,
the City of Philadelphia amended The Phil-
adelphia Code by enacting Section 14-2007,
.� Historic Buildings Structures, Sites, Ob-
(J jgFts and Districts which states that the
rposes of the section are to:
U1) preserve buildings, structures, sites
�and objects which are important to the
i ucation, culture, traditions and eco-
Uomic values of the city;
(2) establish historic districts to assure
that the character of such districts is
retained and enhanced;
(3) encourage the restoration and reha-
bilitation of buildings, structures, sites
and objects which are designated as his-
toric or which are located within and
contribute to the character of districts
designated as historic without displacing
ing court must affirm the adjudication of the
commission unless it is in violation of the con-
stitutional rights of the appellant or not in ac.
cordance with law, the procedural provisions of
the local agency law are violated, or a finding of
fact of the commission necessary to support its
adjudication is not supported by substantial evi-
dence, Local Agency law, Act of April 28, 1978,
P.L. 202, No. 53, § 5, 2 Pa.CS.A. § 754...."
Tegzes v. Township of BristoF 504 Pa. 304, 308,
472 A.2d 1386. 1387 (1984).
5. Additionally, the Commission has the power:
to designate historic districts and delineate the
boundaries thereof: to maintain a comprehen-
sive inventory of historic buildings, sites and
districts; to review and act upon all applications
Section 14-2007 further provides that the
Mayor shall appoint a Philadelphia Histori-
cal Commission which shall have the pow-
er, inter alia, to:
Designate as historic those buildings,
structures, sites and objects which the
Commission determines, pursuant to the
criteria set forth in Subsection (5) of this
Section, are significant to the City 6
Section 14-2007(4)(a). Subsection 5, which
establishes criteria for historic designation,
provides that: "A building ... may be des-
ignated for preservation if it;
(a) Has significant character, interest or
value as part of the development, heri-
tage or cultural characteristics of the
City, Commonwealth or Nation or is as-
sociated with the life of a person in the
past; or,
(b) Is associated with an event of impor-
tance to the history of the City, Common-
wealth or Nation; or,
for permits to alter or demolish historic build-
ings, etc. or buildings, etc. located in a historic
district; to make recommendations to the May-
or and City Council concerning the use of funds
to promote preservations aims of the Code; to
make recommendations to the Mayor and City
Council for the City to purchase any building,
etc, where private preservation is not feasible,
or that the City acquire any property interest
that would promote historic preservation; to
increase public awareness of the value of histor-
ic preservation; to adopt rules of procedure for
the conduct of Commission business; and to
keep minutes and records of all proceedings in
which proposed historic designations are con-
sidered. Section 14-20070)(b)-6).
10 Pa. 595 ATLANTIC REPORTER, 2d SERIES
(c) Reflects the environment in an era
characterized by a distinctive architectur-
al style; or,
(d) Embodies distinguishing characteris-
tics of an architectural style or engineer-
ing specimen; or,
(e) Is the work of a designer, architect,
landscape architect or designer, or engi-
neer whose work has significantly influ-
enced the historical, architectural, eco-
nomic, social, or cultural development of
the City, Commonwealth or Nation; or,
(f) Contains elements of design, detail,
materials or craftsmanship which repre-
sents a significant innovation; or,
(g) Is part of or related to a square, park
or other distinctive area which should be
preserved according to an historic, cul-
tural or architectural motif; or,
(h) Owing to its unique location or singu-
lar physical characteristics, represents an
established and familiar visual feature of
the neighborhood, community or City;
or,
(i) Has yielded, or may be likely to yield,
information important in pre -history or
history; or,
0) Exemplifies the cultural, political, eco-
nomic, social or historical heritage of the
Community.
The stated purposes of Section 14-2007 are
laudable, but the question is whether the
costs associated with Philadelphia's desire
to preserve "historic" buildings, sites, ob-
jects and districts should be borne by all of
the taxpayers or whether those costs can
be lawfully imposed on the owner of any
property the Commission chooses to desig-
nate as historic.
Under Section 14-2007, historical desig-
nation has a significant impact on the
rights and interests of the owner of the
j property designated. The Philadelphia
` Code provides that "[b]efore the Depart-
ment (of Licenses and Inspections) may
issue a permit to alter or demolish an his-
toric building, structure, site or object; .. .
j the permit application shall be forwarded
to the Commission for its review." Section
14-2007(7}(c). The Department of Licenses
i and Inspections "shall post, within seven
(7) days, notice indicating that the owner
has applied for a permit to demolish the
property; that the property is historic ...;
that the application has been forwarded to
the Commission for review" Section 14-
2007(7)(b). Further,
At the time that a permit application is
filed with the Department (of Licenses
and Inspections) for alterations, demoli-
tion or construction subject to the Com-
mission's review, the applicant shall sub-
mit to the Commission the plans and
specifications of the proposed work, in-
cluding the plans and specifications for
any construction proposed after demoli-
tion and such other information as the
Commission may reasonably require 'to
exercise its duties and responsibilities un-
der [the ordinance]. Section 14-
2007(7)(e).
Additionally, "[i]n any instance where there
is a claim that a building, structure, site or
object cannot be used for any purpose for
which it is or may be reasonably adapted,
or where a permit application for altera-
tion, or demolition is based, in whole or in
part, on financial hardship, the owner shall
submit, by affidavit, the following informa-
tion to the Commission:" (1) the amount
the owner paid for the property, the date of
purchase and the name of the former own-
er; (2) the assessed value of the property;
(3) detailed financial information pertaining IQ
the the property for the previous two 0
years; (4) all appraisals of the property
obtained by the owner relating to the pur-
chase of financing of the property; (5) a
schedule of every listing of the property O
for sale or for rent with financial details; p
(6) a statement of any consideration which "
the owner gave pertaining to profitable O
adaptive uses for the property. Section
14-2007(7)(f)(1-6). Additionally, "the Com-'
mission may further require the owner to A
conduct, at the owner's expense, evalua- :J
tions or studies, as are reasonably neces-M
sary in the opinion of the Commission to
determine whether the building ... has or
may have alternate uses consistent with
preservation." Section 14-2007(7)(f)(7).
Where the Commission has an objection,
the Department ("of Licenses and Inspec-
tions) shall deny the permit." Section 14-
2007(7)(g)(2). (Emphasis supplied).
011
O
U
H
6.
7.
UNITED ARTISTS v. HISTORICAL COWN Pa. 11
lemolish the Cite as 593 A.2d 6 (Pa. t99t)
historic ...; The Commission may require that a per- cay, become damaged or otherwise fall
'orwarded to mit for the alteration or demolition of into a state of disrepair. Section 14-
Section 14- any building ... subject to its review be 2007(8)(c).
issued subject to such conditions as
•pplication is
(of Licenses
ions, demoli-
to the Com.
nt shall sub-
plans and
ed work, in-
fications for
after demoli-
ition as the
require to
isibilities un-
�ection 14-
where there
:tore, site or
purpose for
bly adapted,
1 for alters•
whole or in
owner shall
•ing informa-
the amount
the date of
former own-
-he property;
m pertaining
revious two
:he property
to the pur-
,perty; (5) a
the property
ncial details;
ration which
:o profitable
:'ty. Section
y, "the Com-
-he owner to
!nse, evalua-
,nably neces-
)mmission to
g ... has or
isistent with
-2007(7)(f)(7).
an objection,
and Inspec-
Section 14-
;lied).
[11 When, in April, 1987, the Boyd The-
ater was designated as historic over the
objections of the owner, the Commission
obtained almost absolute control over the
property, including the physical details and
the uses to which it could be put. Further,
the historic designation imposed upon the
owner an affirmative duty to preserve the
building, at the exclusive expense of the
owner, in the condition, configuration, style
and appearance mandated by the Commis-
sion.
The exterior of every historic building
... shall be kept in good repair as shall
the interior portions of such buildings
..., neglect of which may cause or tend
to cause the exterior to deteriorate, de-
6. There was much testimony concerning a vari.
ety of mirrors which adorned the interior of the
theater and which Commissioners Brownlee
and Baron believed to be significant. (R.R.,
Ms. 58a, 63a, 64a, 65a, IIla and 112a)
7. "Any person who violates a requirement of
this Section or fails to obey an order issued by
the Department shall be subject to a fine of
three hundred (300) dollars or in default of
Payment of the fine, imprisonment not exceed-
ing ninety (90) days." Section 14-2007(9)(c).
may This affirmative obligation to preserve the
reasonably advance the purposes of [the building in the manner dictated by the
ordinance]. The Department (of Licens- Commission is backed by criminal penal -
es and Inspections) shall incorporate all ties. Section 14-2007(9)(c).7
such requirements of the Commission
into the permit at the time of issuance.
Section 14-2007(7)(i). (Emphasis sup-
plied).
At the hearing on April 2, 1987, counsel for
the owner stated that he was informed that
in Philadelphia the only changes or im-
provements a property owner can lawfully
do without a permit is paint and paper.
(R.R., p 127a) Thus, after historic designa-
tion, any work other than painting and
papering would require the Commission's
approval. He further observed that the
owner would be legally obligated to obtain
permission from the Commission to move a
Article 1, Section 10 of the Pennsylvania
Constitution provides in part: "nor shall
private property be taken or applied to
public use, without authority of law and
without just compensation being first made
or secured." 9 Prior to the historical desig-
nation of the Boyd Theater that property
could have been used by the owner for any
lawful purpose just as neighboring proper-
ty owners could and can so use their prop-
erties. Further, prior to tg.
ignation of the Boyd Theater the owner
could, without governmental control, alteg
revise and remodel the premises in anv
mirror from one wall to another, (R.R., lawful way just as neigh
pps. 127a-128a). No one on the Commis- could an can be altered
sion disputed counsel's observation. modeled. Now, however, after the Corn"
nii7s'sion has designated the Boyd Theater
as historic, the law requires that the prop.
erty be maintained in its present state ax
the owner's expense unless the Commission
g—MT�ermission for a change. "Regular
tton amounts to a taking en government
forces 'some people alone to bear public
burdens, which in all fairness and justicet
should be borne by the public as a whole.' "
Pennsylvania Public Utility Commission
v. Pennsylvania Gas and Water Co., 492
Pa. 326, 334, 424 A.2d 1213, 1218 (1980)
citing Armstrong v. U.S., 364 U.S. 40, 49,
80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960).
Here, Philadelphia, in assuming control
over the Boyd Theater property, is forcing
the owner of that property to bear a public
8. This right is also secured by the Fifth Amend.
ment of the Federal Constitution which provides
in part: "nor shall private property be taken for
public use, without just compensation." This
Fifth Amendment provision is made applicable
to the states by the Fourteenth Amendment.
Chicago B & 0 R. Co. %,. Chicago, 166 U.S. 226,
17 S.Ct. 581, 41 L.Ed. 979 (1897). We, however,
do not consider the Fifth Amendment of the
Federal Constitution in our decision. Rather,
we decide this case entirely upon Article 1,
Section 10 of the Pennsylvania Constitution.
i
12 Pa. 595 ATLANTIC REPORTER, 2d SERIES
burden, ostensibly to enhance the quality
of life of the public as a whole. Philadel-
phia has decided that the Boyd Theater
shall be preserved for the benefit of sight-
seers and the public at large. This is a
burden that, in fairness and justice, should
be borne by all.
[21 The Commission, citing the United
States Supreme Court opinion in Penn
Central Transportation Company v. City
of New York, 438 U.S. 104, 98 S.Ct. 2646,
57 L.Ed.2d 631 (1978) argues that historic
preservations laws have been enacted, prin-
cipally in recognition of two concerns:
The first is recognition that, in recent
years, large numbers of historic struc-
tures, landmarks, and areas have been
destroyed without adequate considera-
tion of either the values represented
therein or the possibility of preserving
the destroyed properties for use in eco-
nomically productive ways. The second
is a widely shared belief that structures
with special historic, cultural, or archi-
tectural significance enhance the quali-
ty of life for all. Not only do these
buildings and their workmanship repre-
sent the lessons of the past and embody
precious features of our heritage, they
serve as examples of quality for today.
'[H]istoric conservation is but one aspect
of the much larger problem, basically an
environmental one, of enhancing —or per-
haps developing for the first time —the
quality of life for people.' 438 U.S. at
108 [98 S.Ct. at 2651] (footnotes omitted)
(Emphasis added).
(Brief of Appellee, p. 27) The Commission
argues that these values are explicitly em-
bodied in the Pennsylvania Constitution'
and are the basis of historic preservation
ordinances including Section 14-2007 of the
Philadelphia Code. The Commission con-
tends that the historic designation of the
Boyd Theater pursuant to the provisions of
Section 14-2007, and in furtherance of
those values, constitutes a valid exercise of
the police power. In Redevelopment Au-
thority of Oil City v. Woodring, 498 Pa
180, 445 A.2d 724 (1982) we stated:
9. Article 1, Section 27.
In a case involving the constitutionali-
ty of a zoning ordinance, this Court held
that 'neither aesthetic reasons nor the
conservation of property values or the
stabilization of economic values ... are,
singly or combined, sufficient to promote
the health or the morals or the safety or
the general welfare of the ... inhab-
itants or property owners.' Afedinger
Appeal, 377 Pa. 217, 226, 104 A.2d 118,
122 (1954). This Court concluded that
actions taken in furtherance of these ob-
jectives could, therefore, never constitute
an exercise of the police power. This
definition of police power is equally appli-
cable in a case where there is an alleged
exercise of the power of eminent domain;
police power is the same, whether it is
used to justify a zoning ordinance or a
taking for public use without compensa-
tion....
Id., 445 A.2d at 727. This interpretation of
police power is likewise applicable where,
as here, government seeks to exercise con-
trol over private property through a histor-
ic preservation ordinance. "Police power
controls the use of property by the owner,
for the public good, its use otherwise being
harmful . . . " White's Appeal, 287 Pa.
259, 264, 134 A. 409, 411 (1926). "If after
investigating there is doubt as to whether
the statute is enacted for a recognized po-
lice object, or if, conceding its purpose, its
exercise goes too far, it then becomes the
judicial duty [to] ... declare the given exer-
cise of the police power invalid." Id., 287
Pa. at 265, 134 A. 409. Additionally, where
the exercise of police power concerns re-
strictions on the use of private property,
such as regulation of property designated
as historic, it is subject to constitutional
limitations. See Id., 287 Pa. at 264, 134 A.
409.
In a dissenting opinion filed by Judge
Harry Kramer in the case of First Presby-
terian Church of York v. City Council of
the City of York, 25 Pa.Commw. 154, 360
A.2d 257 (1976) he observed that:
[O]ur founding fathers and their contem-
porary patriots were as much interested
in protecting citizens' private property
r
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TW UNITED ARTISTS v. HISTORICAL COM'N Pa. 13
s,.; Cite as 593 A2d 6 (Pa. 1991)
?=Js, .-rights against encroachments by govern- serve the premises in the condition and
ment as they were in liberty itself. And style as dictated by the Commission, at the
so they made constitutional provisions owner's exclusive expense and without
against government taking private prop- compensation. "A man's home and proper-
erty for public use except through the ty used to be his castle." Cass Plumbing
stringent and restrictive governmental & Heating Co. v. PPG Industries, Inc., 488
powers of eminent domain. Pa. 564, 565, 412 A.2d 1376, 1377 (1980)
J d b
These very basic private property prin-
ciples have been eroded during the past
fifty years especially through, inter alia,
the application of zoning laws 10 and ur-
ban redevelopment laws.... It seems
that with the advent of historical
[preservation] statutes, such as [that] in-
volved in this case, ... the legislatures
and the courts are adding a new dimen-
sion which may do violence to constitu-
tional private property rights, for now
we hold that a private property owner
must make his property available with-
out compensation for public view. In
effect, he must dedicate his property
without compensation for public histori-
cal, aesthetic, educational, and museum
purposes, which in reality are public
uses.
0
(Dissenting Opinion, rsen, . 30me y
Flaherty, J.) Because one's property was
built in a certain architectural style or de-
signed by a particular architect does not
make it any less his castle. "Over [60]
years ago, Mr. Justice Holmes, ... warned
that the courts were 'in danger of forget-
ting that a strong public desire to improve
the public condition is not enough to war-
rant achieving the desire by a shorter cut
than the constitutional way of paying for
the change'." (citation omitted) Penn
Central Transportation Co. v. City of
New York, 438 U.S. 104, 152, 98 S.Ct. 2646,
2673, 57 L.Ed.2d 631 (Dissenting Opinion
by Rehnquist, J., now C.J.). Accordingly,
we hold that the "Historic Buildings, Struc-
tures, Sites, Objects and Districts" provi-
sions of the Philadelphia Code (Section 14-
2007), which authorize the historic designs
Id., 360 A.2d at 262-263. In this case, the tion of private property —in this case the
.r, owner of the Boyd Theater is required by Boyd Theater —without the consent of the
d f finance to assume and discharge an af- owner," are unfair, unjust and amount to
w fi*ative duty to use the property and pre- an unconstitutional taking without just
y, fil) Restrictions established by historic preserva.
�- tons laws such as Section 14-2007 of the Phila.
tj elphia Code differ from those imposed by zon-
+0tg laws.
r•-a
Typical zoning restrictions may, it is true, so
limit the prospective uses of a piece of proper.
ty as to diminish the value of that property in
the abstract because it may not be used for
the forbidden purposes. But any such ab.
stract decrease in value will more than likely
be at least partially offset by an increase in
value which flows from similar restrictions as
to use on neighboring properties. All proper-
ty owners in a designated area are placed
under the same restrictions, not only for the
benefit of the municipality as a whole but also
for the common benefit of one another. In
the words of Mr. Justice Holmes, speaking for
the Court in Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed.
322 (1922), there is 'an average reciprocity of
advantage.'
Penn Central Transportation Co. v. City of New
York, 438 U.S. 104, 98 S.CL 2646, 2667, 57
LEd.2d 631 (1978) (Dissenting opinion by
Rehnquist, J. now C.J.) When a specific piece
of property is targeted and treated differently
from neighboring properties, no such reciproci-
ty exists. If anything, singling out the Boyd
Theater for historic designation is akin to "spot
zoning" which we have declared to be illegal.
French v. Zoning Board of Adjustment, 408 Pa.
479, 184 A.2d 791 (1962).
11. Unlike the Philadelphia Code, under Pennsyl-
vania's Historic Preservation Act, 1988, May 26.
P.L. 414, No. 72, 37 Pa.C.S. § 501, et seq., pri-
vate property may not be included on the histor-
ic register if the owner objects.
The owner of private property of historic,
architectural or archaeological significance,
or a majority of the owners of private proper-
ties within a proposed historic district, shall
be given the opportunity to concur in, or
object to, the nomination of the property or
proposed district for inclusion on the Pennsyl-
vania Register of Historic Places. If the own-
er of the property, or a majority of the owners
of the properties within the proposed historic
district, object to the inclusion, the property
shall not be included on the register.
37 Pa.C.S. § 503. This provision requiring the
consent of the owner avoids the constitutional
violation of "taking" without just compensation.
P O 2
^� � t-:p
C,�i
14 Pa. 595 ATLANTIC REPORTER, 2d SERIES
compensation in violation of Article 1, Sec-
tion 10 of the Pennsylvania Constitution."
The order of the Commonwealth Court is
reversed.
CAPPY, J., filed a concurring opinion
joined by NIX, C.J., and McDERMOTT, J.
CAPPY, Justice, concurring
I concur in the result reached by the
majority herein. I believe that the ordi-
nance in question, section 14-2007, permits
only the exterior of buildings to be desig-
nated as historical and does not refer to the
interior of such buildings. The only refer-
ence within the entire ordinance that makes
any distinction between exterior and interi-
or is section 14-2007(8)(c), which provides,
in pertinent part:
The exterior of every historic building,
structure and object and of every build-
ing, structure and object located within
an historic district shall be kept in good
repair as shall the interior portions of
such buildings, structures and objects,
neglect of which may cause or tend to
cause the exterior to deteriorate, decay,
become damaged or otherwise fall into
disrepair.
I find the plain meaning of this ordinance
is that any reference to the interior of the
building is only to the extent that it affects
the exterior. As such, I do not believe we
need to reach the issue of whether the
designation of the subject building, both
the exterior and interior, constitutes an un-
constitutional "taking" for which compen-
sation is required.' Rather, I would find
that the Commission is without authority,
12. The appellant also challenged the Commis-
sion's power to designate the interior of a pri-
vate building, such as its Boyd Theater, as his-
toric, and the sufficiency of the evidence. Since
we have held that the Commission's designation
of appellant's building violates the Pennsylvania
Constitution, we find it unnecessary to address
the other issues raised.
1. I note that the majority opinion herein does
not address the holding of the United States
Supreme Court decision in Penn Central Transp.
Ca v. New York City, 438 U.S. 104, 98 S.Ct. 2646,
under the ordinance, to designate the inte-
rior of a privately owned building histori-
cal. As such, I would deem the acts of the
Commission in the instant case as over-
broad and without force and effect.
It is a long standing principle of jurispru-
dence that where an issue can be resolved
on a basis other than constitutional law,
the court should not address the constitu-
tional question. See Krenzelak v. Krenze-
lak, 503 Pa. 373, 469 A.2d 987 (1983); Bal-
lou v. State Ethics Commission, 496 Pa.
127, 436 A.2d 186 (1981); Mt. Lebanon v.
County Board of Elections, 470 Pa. 317,
368 A.2d 648 (1977). Furthermore, "courts
may not declare a statute unconstitutional
'unless it clearly, palpably, and plainly
violates the Constitution.'" Tosto v. Penn-
sylvania Nursing Home Loan Agency,
460 Pa. 1, 16, 331 A.2d 198, 205 (1975),
quoting Daly v. Hemphill, 411 Pa. 263,
271, 191 A.2d 835, 840 (1963) (emphasis in
original).
For the foregoing reasons, I would re-
verse the opinion of the Commonwealth
Court and find that the acts of the Commis-
sion were without force and effect. I con-
cur in the result.
NIX, C.J., and McDERMOTT, J., join the
concurring opinion of CAPPY, J.
Submitted into the public
0T
w
s tH n conn:.c ;.on c. ,ih
item Q Z-
57 L Ed.2d 631 (1978), but rather focuses on the
dissent. In Penn Central, the Court held, inter
alia, that the New York City Landmark's Preser-
vation Law did not constitute a "taking" under
the Fifth Amendment to the United States Con-
stitution that would require "just compensa-
tion." Although Penn Central was decided on
federal constitutional law and the majority has
decided the case sub judice under state constitu-
tional law, I do not believe that the language of
our state constitution necessarily mandates a
different outcome on the issue of "taking."
M� CL,LtyHi.
-Ui
C.t clo'k
P. 02
J-90-606
4/9/91
ORDINANCE
NO.
91 AUG -2 AM 11: 53
10875
AN ORDINANCE , RELATED TO HISTORIC
PRESERVATION, AMENDING THE CODE OF THE CITY
OF MIAMI, FLORIDA, BY ADDING A NEW CHAPTER
23.1 ENTITLED "HISTORIC PRESERVATION';
PROVIDING FORt INTENT AND PURPOSE;
DEFINITIONS; HISTORIC AND ENVIRONMENTAL
PRESERVATION BOARD; PRESERVATION OFFICER;
DESIGNATION OF HISTORIC SITES, HISTORIC
DISTRICTS, AND ARCHEOLOGICAL ZONES;
CERTIFICATES OF APPROPRIATENESS; AND
ADMINISTRATION, ENFORCEMENT, VIOLATIONS, AND
PENALTIES; FURTHER, AMENDING CHAPTER 62, BY
DELETING THE EXISTING ARTICLE VII ENTITLED
"HERITAGE CONSERVATION BOARD" AND
SUBSTITUTING IN LIEU THEREOF AN ENTIRELY NEW
ARTICLE VII ENTITLED "HISTORIC AND
ENVIRONMENTAL PRESERVATION BOARD;" PROVIDING
FORt ESTABLISHMENT; MEMBERSHIP; FUNCTIONS,
POWERS, AND DUTIES, GENERALLY; PROCEEDINGS;
COMPENSATION; AND PRESERVATION OFFICER;
CONTAINING A REPEALER PROVISION, SEVERABILITY
CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE.
Submitted into the public
record in. connection With
item P 2 . / L
�,gnitY l+iirr,�� •
clerk
WHEREAS, the Miami Heritage Conservation Board, at its
meeting of June 19, 1990, Item No. 7, following an advertised
hearing, adopted Resolution HC-90-19 by a vote of 7 to 0,
RECOMMENDING APPROVAL of emending the Code of the City of Miami,
Florida, as hereinafter set forth, but further recommending that
the name of the Board be changed from "Preservation Board" to
"Historic and Environmental Preservation Board-; and
WHEREAS, per Motion 90-237, dated March 27, 1990, the City
Commission directed the administration to initiate legislation
transferring responsibility for future designation of historic
properties from the zoning Ordinance to the City Code, thereby
giving the Heritage Conservation Board the authority to designate
historic properties, with appeal to the City Commission; and
WHEREAS, the Miami Planning Advisory Board, at its meeting
of June 20, 1990, Item No. 2, following an advertised hearing,
adopted Resolution No. 47-90 by a vote of 5 to 0, RECOMMENDING
APPROVAL of amending the Code of the City of Miami, Florida, as
hereinafter set forth and as amended by the Heritage Conservation
Board; and
10875
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WHEREAS, the City Commission, after careful consideration of
this matter, deems it advisable and in the beat interest of the
general welfare of the City of Miami and its inhabitants to amend
the Code of the City of Miami, Florida, as hereinafter set forth;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION of THE CITY
OF MIAMI, FLORIDAs
Section 1. The Code of the City of Miami, Florida, is
hereby amended by adding a new Chapter 23.1, entitled "Historic
Preservation," to read as followssl/
"CHAPTER 23.1
HISTORIC PRESERVATION
Sec. 23.1-1. Intent and purpose.
(A) The intent of this chapter is to preserve and
protect the heritage of the City of Miami through the
identification, evaluation, rehabilitation, -adaptive
use, restoration, and public awareness of. Miami's
historic, architectural, and archeological resources.
This chapter is further intended tos
(1) Effect and accomplish the protection, enhancement,
perpetuation, and use of structures, landscape
features, archeological resources; areas,
neighborhoods, and scenic vistas which represent
distinctive elements of the city's historic, cultural,
archeological, aesthetic, and architectural heritage;
(2) Foster civic pride in the accomplishments of the
past;
(3) Protect and enhance the aesthetic and
environmental character, diversity, and interest of
neighborhood*;
(4) Stabilize and improve property values in
neighborhoods and in.the city as a whole;
(S) Protect and enhances the city's attraction to
residents, tourists, and visitors and thereby serve as
a support and stimulus to the economy;
(6) Promote the use of historic sites, historic
districts, and archeological zones for the education,
pleasure, and welfare of the people of the city of
Miami.
(B) The purpose of this chapter is to:
(1) Provide the framework and legal mechanism for
identifying and designating those properties that have
major significance in the city's historic, cultural,
archeological, aesthetic, and architectural heritage;
(2) Assure that alterations and new construction
within designated historic sites, historic districts,
11 Asterisks indicate omitted and unchanged material.
Submitted into the public -
record in connection wi.
itemQ'�I _ on
YICLtiy I
City C1(;1.0
_ -2-
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and archeological zones are compatible with the
property's historic character.
Sec. 23.1-2. Definitions.
The following definitions shall apply only to this
Chapters
Alteration. Any change affecting the exterior
appearance of a structure or its setting by additions,
reconstruction, remodeling, or maintenance involving
change in color, form, texture, signs, or materials, or
any such changes in appearance of designated interiors.
Applicant. The owner of record of a property and/or
structures located thereon, or his legal
representative.
Application, complete. An application. for approval
sought pursuant to this Article shall be deemed
complete if it is on a form approved by the city, and
all applicable information is provided by the applicant
on the form, or attachment(s) as necessary, at the time
of its filing and it has been reviewed and signed by
the appropriate official and if all required 'fees are
paid. In the event a complete application has not been
heard by the appropriate board within 90 days of
filing, it shall be deemed withdrawn and a new
application must be filed.
Archeological conservation area. A geographically
defined area delineated in the Miami Comprehensive
Neighborhood Plan on the Future Land Use Plan Map
Series entitled "Historic District Boundaries and
_ Historically Significant Properties Meriting
Protection."
Archeological zone. A geographically defined area
which may reasonably be expected to yield information
on local history or prehistory based upon broad
prehistoric or historic settlement patterns.
Archeological site. A single specific location which
has yielded or is likely to yield information on local
history or prehistory. Archeological sites may be
found within archeological zones, historic sites, or
historic districts.
Certificate of approp--i&teness. A written document,
issued pursuant to this chapter, permitting specified
alterations, demolitions, or other work.
Contributing structure/l&ndscapa feature. A structure
or landscaoe feature which by location, design,
setting, materials, workmanship, feeling, and
association adds to the sense of time and place and
historical development of a historic site or historic
district.
Demolition. The complete destruction of a structure,
or any part thereof.
Designated property; designated historic site;
designated historic district; designated archeological
zone. A historic site, historic district, or
archeological zone designated pursuant to either this
chapter or article 16 of ordinance 9500, the previous
Zoning Ordinance of the City of Miami, Florida, as
amended, and shown in the Historic and Environmental
Preservation Atlas.
Submitted into the public
record in connection with
item on
10875
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Ground disturbing activity. Any excavation, filling,
digging, removal of trees, or any other activity that
' may alter or reveal an interred archeological site.
Historic district. A geographically defined area
possessing a significant concentration, linkage, or
continuity of sites or structures united historically
or aesthetically by plan or physical development.
Historic site. A geographically defined area
containing a structure or site, or a historically
related complex of structures or sites, which has a
special character or a special historic or aesthetic
interest or value as part of the heritage of the city.
Landscape feature. vegetation, geological features,
ground elevation, bodies of water, or other natural or
environmental features.
Ordinary maintenance or repair. Any work, the purpose
and effect of which is to correct any deterioration or
decay of a structure or landscape feature, or any part
thereof, by restoring it, as nearly as may be
practicable, to its condition prior to such
deterioration or decay, using the same materials or
those materials available which are as close as
possible to the original.
Historic and Environmental Preservation Atlas. The
Official Historic and Environmental Preservation Atlas
of the City of Miami, Florida, which shows all
designated historic sites, historic districts, and
archeological zones.
Rehabilitation. The act or process of returning a
property to a state of utility through repair or
alteration which makes possible an efficient
contemporary use while preserving those portions or
features of the property which are significant to its
historical, architectural, and cultural values.
Relocation. Any change of the location of a structure
in its present setting or to another setting.
Restoration. The act or process of accurately
recovering the form and details of a property and its
setting as it appeared at a particular period of time
by means of the removal of later work or by the
replacement of missing earlier work.
Site. The location of a significant event, a
prehistoric or historic occupation or activity, or a
structure, whether standing, ruined, or vanished, where
the location itself possesses historic, cultural, or
archeological value regardless of the value of any
existing structure.
Structure. Anything constructed or erected, the use of
which requires a fixed location on the ground or
attachment to something having fixed location on the
ground.
� Unreasonable or undue economic hardship. An onerous
and excessive financial burden that destroys reasonable
and beneficial use of property and that would amount to
the taking of property without just compensation, or
failure to achieve a reasonable economic return in the
cane of income producing properties.
10875
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Sec. 23.1-3. Historic and environmental preservation
board; preservation officer.
The Historic and Environmental Preservation Board
(hereinafter referred to as the "board") and the
Preservation Officer, as established pursuant to —
sections 62-70 and 62-75 of the Miami City Code, shall
carry out the duties as assigned by this Chapter.
Sec. 23.1-4. Designation of historic sites, historic
districts, and archeological zones.
(Al Criteria for designation. Properties may be
designated as historic sites, historic districts, or
archeological zones only if they have significance in
the historical, cultural, archeological, aesthetic, or
architectural heritage of the city, state, oe nation;
possess integrity of design, setting, materials,
workmanship, feeling, and association; and meet one (1)
or more of the following criteria:
(1) Are associated in a significant way with the life
of a person important.in the past; or
(2) Are the site of a historic event with significant
effect upon the community, city, state, or nation; or
(3) Exemplify the historical, cultural, political,
economic, or social trends of the community; or
(4) Portray the environment in an era of history
characterized by one (1) or more distinctive d lkG
architectural styles; .or 1�C'�C�1 .•.
(5) Embody those distinguishing characteristics of a '�lN
architectural style, or period, or method of
construction; or iEC \ C` Clex�.
(6) Are an outstanding work of a prominent designer or
builder; or
(7) Contain elements of design, detail, materials, or
craftsmanship of outstanding quality or which represent
a significant innovation or adaptation to the South
.Florida environnen:.; or
(8) Have yielded, or may be likely to yield,
information important in prehistory or history.
(B) Procedures for designation. Properties which meet
the criteria set forth in Section 23.1-4(A) may be
designated as historic sires, historic districts, and
archeological zones according to the following
procedures:
(1) Proposals and preliminary evaluation. Proposals
for designation may be made to the board by any one (1)
of its members, the City Commission, the planning,
building and zoning department, any other city
department, agency, or board, the Metropolitan Dade
County Historic Preservation Board, or any interested
citizen. The board shall conduct a preliminary
evaluation of the data provided in the proposal for
conformance with criteria set forth in section 23.1-
4(A); and shall, if appropriate, direct the planning,
building and zoning department to prepare a designation
report. The board may require the party initiating
such proposal to provide any necessary documentation,
and to prey airy applicable fees.
-5- 10875
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(2) Preparation of designation report. For every
proposed historic site, historic district, and
archeological zone, the planning, building and zoning
department shall prepare a designation report
containing the following Informations
(a) Designation report. The designation report shall
contain a statement of the historic, architectural,
and/or archeological significance of the proposed
historic site, historic district, or archeological
zone; the criteria upon which the designation is based;
a physical description of the property; an
identification of contributing structures and/or
landscape' features; present trends and conditions; and
incentives to encourage preservation, rehabilitation,
or adaptive uso.
(b) Boundaries. The designation report shall include
a map or maps indicating pro osed boundarie .
Boundariar�.,fog..hLaiar,La*�,sttest-TsltbY2 Fally"inclu
the W11 , c of an.y; un uclti t
is go-
fun
funCt+ign i y utinq_dtruelt oiw
Ian, storic district.boupdaries shall
in general--' be drawn to include all,' ontributin
- structures 'raa�ioi ibly Corti rijtlti�us>yithin'rea `and Aff
inclu'darepAVFW&W iYiduat!}x'`de not.,contribu
to tho historic', chiracter� b t e-district - 6'uti wh_4
requirzggulationa�"i'tl7Fd''°conL�rntiel
adverseg `:` inlltienceW!"`bid thasµctia'racter- and integrity f
the district. Archeological zone boundaries shall
generally conform to natural physiographic features
which were the focal points for prehistoric and
historic activities or may be 'drawn along 'property
lines, streets, or geographic features to facilitate
efficient management.
(c) Interiors. Interior spaces that have exceptional
architectural, artistic, or historic importance and
that are customarily open to the public may be subject
to regulation under this chapter. The designation
report shall describe precisely those features subject
to review and shall set forth standards and guidelines
for such regulations. Interior spaces not so described
shall not be subject to review under this chapter.
(3) Notice and Public hearing. The board shall
conduct a public hearing to determine whether the
proposed historic site, historic district, or
archeological zone meets the criteria set forth in
section 23.1-4(A) and stall approve, amend, or deny the
proposed designation. The board may rehear proposals
based- upon policies set forth in its rules of
procedure.
All public hearings on designations conducted by
the board and hearings on administrative appeals of
board decisions regarding designations shall be noticed
as follows:
(i) the owner of property or his designated agent or
attorney, if any, which is the subject of such
designation shall be notified by mail at least thirty
(30) days prior to the board's meeting and fifteen (15)
prior to subsequent administrative appellate hearings.
The owner shall receive a copy of the Designation
Report unless there are more than twenty (20) owners,
in which case the notice shall state that a copy is
available and where it may be obtained.
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10875
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(ii) An advertisement shall be placed in a newspaper
of general circulation at least ten (10) days prior to
the hearing.
(lit) Signs shall be posted pursuant to section
2-55(2)(a), as amended, of the Code of the City of
Miami, Florida.
(iv) Notice of the time and place of the public
hearing by the board, or city commission, as the case
may be, shall be sent at least ten (10) days in advance
of the hearing by mail to all owners of property within
three hundred seventy-five (375) feet of the property
lines of the land for which the hearing is required.
The applicant shall be charged the appropriate fee as
set forth in section 62-61 for the mailing. For the
purpose of this requirement, the names and addresses of
property owners shall be deemed those appearing on the
latest tax rolls of the city. The Preservation
Officer, or his/her designee, shall certify at,the time
of the. public hearing that notice as herein required
was given to the persons as named and with addresses
shown on his certification by the placing in the mail
system of the United States on the date certified the
herein required notice; the certification shall be
conclusive of the giving of said notice; In the case of
condominiums, notice will be sent solely to the
condominium association. No action taken by the board,
or the city commission, as the case may be, shall be
voided by the failure of an individual property owner
or property owners to receive notice pursuant to this
subparagraph.
(4) Historic- and Environmental -Preservation.. Atlas.
Historic sites, historic districts, and archeological
zones designated pursuant to section (3) above shall be
shown in the Official Historic and Environmental
Preservation Atlas of the City of Miami, Florida.
(5) Appeals. The property owner, any one (1) member
of the City Commission, the planning, building and
zoning department, or any aggrieved party may appeal to
the City Commission any decision of the board on
matters relating to designations by filing within
fifteen (15) calendar says after the date of the
decisicn a written notice of appeal with the hearing
boards division of the planning, building and zoning
department, with a copy to the preservation officer.
Said notice of appeal shall set forth concisely the
decision appealed from and the reasons or grounds for
the appeal. Each appeal shall be accompanied by a fee
as set forth in section 62-62. The City Commission
shall hear and consider all facts material to the
appeal and render a decision promptly. The City
Commission may affirm, modify, or reverse the board's
decision. Any decision to reverse the board's decision
shall require a three -fifths (3/5th5) vote of all
members of the City Commission. Appeals from decisions
of the City Commission may be made to the courts as
provided by the Florida Rules of Appellate Procedure.
The provisions of section 23.1-5 shall remain in effect
during the entire appeal process, unless stayed by a
Court of competent jurisdiction.
(6) Amendinents. The board may amend any designation
by following the same procedures as set forth in this
section. The board may likewise rescind any
designation if the structure or feature of principal
historic significance has been demolished or destroyed.
Submitted iZto the %11'11 �4 01
record in connection i �
item V - I on
Matty Hirai
City Clerk
-7- 10 8 7 5 " �) .. F �� q
- �- 2-% 1 SAT 1 1 : T T P C'•9
(C) Effect of designation. Upon designation,
thereafter, the provisions of section 23.1-5 shall
_
apply.
Sec. 23.1-5. Certificates of appropriateness:
(A) Certificates of appropriateness, when required. A
certificate of appropriateness shall be required for
any new construction, alteration, relocation, or
demolition within a designated historic site or
historic district. A certificate of appropriateness
shall be required for any ground disturbing activity
within a designated archeological site or archeological
zone or within an archeological conservation area. No
permits shall be issued by the planning, building and
— zoning department for any work requiring a certificate
of appropriateness unless such work is in conformance
_ with said certificate.
(B) Procedures for issuing certificates of
appropriateness.
(1) Pre -application conference(s). Before submitting
— an application for a certificate of appropriateness, an
applicanr, is encouraged to confer with the preservation
officer to obtain information and guidance before
entering into binding commitments or incurring
substantial expense in the preparation of plans,
surveys, and other data. At the request of the
applicant, the preservation officer, or any member of
the board, an additional pre -application conference
shall be held between the applicant and the board or
— its designated representative. The purpose - of such
conference shall be 'to further discuss and clarify
preservation objectives and design guidelines in cases
that may not conform to established objectives and
_ guidelines. in no case, however, shall any statement
or representation made prior to the official
application review be binding on the board, the City
Commission, or any city department.
(�
(2) Application for certificate of appropriateness.
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The applicant shall submit to the preservation officer
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an application together with supporting exhibits and
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other materials required by the rules of procedure of
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(3) Standard certificates of appropriateness. Where
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the action proposed in an application is a minor
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improvement, as specified by the rules of procedure of
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the board, and is in accord with the guidelines for
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Issuing certificates of appropriateness as set forth in
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within ten (10) calendar days of receipt of the
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complete application, issue a standard certificate of
appropriateness, with or without conditions, indicating
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in writing conformity with said guidelines. Following
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such approval, permits dependent upon it may be issued
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if otherwise lawful.
(4) Special certificates of appropriateness. Where
the action proposed in an application involves a major
alteration, relocation, or demolition, as specified by
the rules of procedure of the board, or where the
preservation officer finds that the action proposed in
an application involving a minor alteration is not
-a- 10875
c)early in accord wi.'qRe guidelines as Get forth in
section 23.1-5(C), the application shall be classified
ca a special certificate of appropriateness, and the
following procedures shall govern. The applicant may
also request that his application be classified as a
special certificate of appropriateness.
(a) Public hearing. When a complete application is
received, the preservation officer shall place the
application or the next regularly scheduled meeting of
the board. She board shall hold a public hearing with
notice of the application and the time and place of the
hearing as follows%
(i) The applicant shall be notified by mail at least
ten. (10) calendar days prior to the hearing.
(ii) Any individual or organization requesting such
notification and paying any established fees therefor
shall be notified by mail at least ten (10) calendar
days prior to the hearing.
(iii) An advertisement shall be placed in a newspaper
at least ten (10) calendar days prior to the hearing.
(iv) Any additional notice deemed appropriate by the
board.
(b) Decision of the board. The decision of the board
shall be based upon the guidelines set forth in section
23.1-5(C), as well as the general purpose and intent of
this chapter. and any specific design guidelines
officially adopted for the particular historic site,
historic district, or archeological zone. No.decision
of the board shall result in an unreasonable or undue
economic hardship for the owner. The board may seek
technical advice from outside its members -on any
application. The decision of the board shall include a
complete description of its findings, and shall direct
one (1) of the following actionsi
(i) Issuance of a special certificate of
appropriateness for the work proposed by the applicant;
or
(ii) Issuance of a special certificate of
appropriateness with specified modifications and
conditions; or
(iii) Denial of a special certificate of
appropriateness, subject to the limitations in section
23.1-9(C)(2)(a); or
(iv) Issuance of a special certificate of
appropriateness with a deferred effective date up to
six (6) mor•,.hs in cases of demolition or relocation of
a contributing structure or landscape feature, pursuant
to the provisions of sections 23.1-5(C)(2), (3), and
(4), or up to forty-five (45) calendar days for any
work potentially affecting an archeological site,
archeological zone, or archeological conservation area,
pursuant to the provisions of sections 23.1-5(C)(5).
(c) Time limitations. if no action is taken upon an
application by the board within sixty (60) calendar
days, excluding those days within the month of August,
from the receipt of a complete application, such
application shall be deemed to have been approved; and
the _preservation officer shall authorize issua+ice of
any permit dependent upon such certification, if
Submitted into the public
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lawful, recording as authorization the
,ns of this section. This time limit may be
_d at any time by mutual consent of the applicant
.d the board.
(d) Records. Written copies of all decisions and
certificates of appropriateness shall be filed with the
planning, building and zoning department.
(e) Appeals. The applicant, the planning, building
and zoning department, or any aggrieved party may
appeal to the City Commission any decision of the board
on matters relating to certificates of appropriateness
by filing within fifteen (15) calendar days after the
date of the decision a written notice of appeal with
the hearing boards division of the planning, building
and zoning department, with a copy to the preservation
officer. Said notice of appeal shall set forth
concisely the decision appealed from and the reasons or
grounds for the appeal. Each appeal shall be
accompanied by a fee established by the City Commission
to cover the cost of publishing and mailing notices of
the hearing. The City Commission shall hear 'and
consider all facts material to the appeal and render a
decision promptly. The City -Commission may affirm,
modify,,or reverse the board's decision. The decision
of the City Commission shall constitute final
administrative review, and no petition for rehearing or
reconsideration shall be considered by the city.
Appeals from decisions of the City Conunission may be
made to the courts as provided by the Florida Rules of
Appellate Procedure.
(f) Changes in approved work. Any change in work
proposed subsequent to the issuance of a certificate of
'• appropriateness shall be reviewed by the preservation
officer. If the preservation officer finds that the
proposed ch,snge does not materially affect the
property's historic character or that the proposed
change is in accord with approved guidelines,
standards, and certificates of appropriateness, the
officer may issue a supplementary standard certificate
of appropriateness for such change. if the proposed
change is not in accord with guidelines, standards, or
certificates of appropriateness previously approved by
the board, a new application for a special certificate
of appropriateness shall be required.
(g) Conditional uses and deviations. The board shall
issue special certificates of appropriateness for
conditional uses and deviations, pursuant to the
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provisions of Article 7 of Ordinance 11000, the Zoning
Ordinance of the City of Miami, Florida, as amended.
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(5) Expiration of certificates of appropriateness.
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Any certificate of appropriateness issued pursuant to
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the provisions of this section shall expire twelve (12)
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months from the date of issuance, unless the authorized
work is commenced within this time period.
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(C) Guidelines for Issuing certificates of
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appropriateness.
(1) Alteration of existing structures, new
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construction. Generally, for applications relating to
alterations or new construction as required in section
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23.1-5(A), the proposed work shall not adversely affect
the historic, architectural, or aesthetic character of
the subject structure or the relationship and congruity
between the subject structure and its neighboring
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-10- 10875 : ; .. 149
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structures and surroundings, including but not limited
to form, spacing, height, yards, materials, color, or
rhythm and pattern of window and door openings in
building facades; nor shall the proposed work adversely
affect the special character or special historic,
architectural or aesthetic interest or value of the
overall historic site or historic district. Except
where special standards and guidelines have been
specified in the designation of a particular historic
site or historic district, or where the board has
subsequently adopted additional standards and
guidelines for a particular designated historic site or
historic district, decisions relating to alterations or
new construction shall be guided by the U. S. Secretary
of the Interior's "Standards for Rehabilitation and
Guidelines for Rehabilitating Historic Buildings."
(2) Demolition of existing structures.
(a) The board shall have authority to deny a
demolition permit only where such authority is provided
as a -condition of granting a conditional use or
substantial deviation under the provisions of section
704.4.4 of ordinance 11000, the Zoning ordinance of the
city of Miami, Florida, as amended.
(b) Except as provided in (a) above, the
board may grant a certificate of appropriateness with a
delayed effective date up to six (6) months. The
effective date shall be determined by the board based
upon the relative ficance ofstructure, the
probable timeto arrange an alternative to demolition,
and whether the applicant has made a clear�l
I, determination of unreasonable or undue economics
hardship.
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(c) During the demolition delay period, the
board may take such steps as it deems necessary to
preserve the structure concerned, in accordance with
the intent and purpose of this article. Such steps may
include, but shall not be limited to, consultation with
civic groups, public agencies, and interested citizens,
recommendations for acquisition of property by public
or private bodies or agencies, and exploration of the
possibility of relocating the subject structure.
(d) During the demolition delay period, the Submitted into
the Public
owner shall permit access to the subject property for
inspections by
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the purpose of appraisals and required
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the board. If the board finds that the owner has
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refused a "bona fide- offer to purchase or otherwise
provide compensation for the subject structure or
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for fair market value by any public or private
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person or agency which gives reasonable assurance of
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its willingness to preserve such st•ructurek on its
original site or on a site approved by the board, it
may invalidate the certificate of appropriateness,
following a public hearing.
(e) The board may require, at the
applicant's expense, salvage and preservation of
significant building materials, architectural details
and ornaments, fixtures, and the like for reuse in
restoration of other historic properties. The board
may also require at the applicant's expense the
recording of the structure for archival purposes prior
to demolition. The recording 'may include, but shall
not be limited to, photographs and measured drawings.
IOS75 t
(3) Relocation of existing structures.
Relocation of historic structures from their original
location shall be discouraged; however, the board may
grant a certificate of appropriateness if it finds that
no reasonable alternative is available for preserving
the structure on its original site and the proposed
relocation site is compatible with the historic and
architectural character of the structure. The board
may issue a certificate with a delayed effective date
up to six (6) months in order to explore alternatives
to relocating the structure in question.
(4) Removal of landscape features.
(a) No certificate of appropriateness ahall
be granted for removal, relocation, concealment or
effective destruction. by damage of any contributing
landscape features identified in the designation report
unless one (1) of the following conditions exists:
(i) The landscape feature is located in the buildable
area or yard area where a structure may be placed and
unreasonably restricts the permitted use of the
property; or
(11) The landscape feature is inappropriate in a'
historic context or otherwise detracts from thel
character of the historic site or historic district; or�
(III) The landscape feature is diseased, injured, or in
danger of falling; unreasonably interferes with utility
service; creates unsafe vision clearance; or conflictal
with other applicable laws and regulations.
(b) As' - _a condition of granting the
certificate of appropriateness, the applicant may be
required to relocate or replace identified landscape
features.
(5) Ground disturbing activity in archeological
zones, archeological sites, or archeological
conservation areas.
(a) No certificate of appropriateness shall
be issued for new construction, excavation, tree
removal, or any other ground disturbing activity until
the Dade County Archeologist has reviewed the
application and made -his recommendation concerning the
required scope of archeological work. The board may
require any or all of the following:
(i) Scientific excavation and evaluation of the site
at the applicant's expense by &a archeologist approved
by the board.
(ii) An archeological survey at the applicant's
expense conducted by an archeologist approved by the
board containing an assessment of the significance of
the archeological site and an analysis of the impact of
the proposed activity on the archeological site.
(111) Proposal for ntitigetion measures.
(iv) Protection or preservation of all or part of the
archeological site for green space, if the site is of
exceptional importance and such denial would not
unreasonably restrict the primary use of the property.
(b) The board may J-4sue a certificate of
appropriateness with a delayed effective date up to
-12- 10875
forty-five (45) calendar days to allow any necessary
site excavation or assessment.
(c) The Dade County Archeologist shall
assist the board by providing review of any
professional archeological surveys and excavations
conducted pursuant to a certificate of appropriateness.
Sec. 23.1-6. Administration, enforcement, violations,
and penalties.
(A) Ordinary maintenance and repair. Nothing in this
chapter shall be construed to prevent or discourage the
ordinary maintenance or repair of any structure when
such maintenance or repair does not constitute an
alteration, or to prevent the ordinary maintenance of
landscape features.
(B) Enforcement of maintenance and repair provisions.
When the board or preservation officer determines that
any designated property is endangered by lack of
maintenance and repair, or that any other property in
visual proximity to a designated property lacks
maintenance and repair to such an extent as to detract
from the character of the designated property, the
board or officer may request appropriate officials or
agencies of the city to require correction. of such
deficiencies under authority of applicable laws and
regulations.
(C) Unsafe structures. In the event the Building
official of the City of Miami determines that any
designated property is unsafe pursuant to section 202
of the South Florida Building Code,• he shall
immediately notify the board with copies of such
findings. Where reasonably feasible within applicable
laws and regulations, the Building official shall
endeavor to have the structure repaired rather than
demolished and shall take into consideration any
comments and recommendations of the board. The board
= may take appropriate actions to effect and accomplish
preservation of such structure, including, but not
limited to, negotiations with the owner and other
interested parties, provided that such actions do not
interfere with procedures in section 202 of said
building code.
(D) Emergency conditions. For the purpose of
remedying emergency conditions determined to be
imminently dangerous to life, health, or property,
nothing contained herein shall prevent any temporary
construction, reconstruction, demolition, or other
repairs to a designated property, pursuant to an order
of a government agency or a court of competent
jurisdiction, provided that only such work as is
reasonably necessary to correct the emergency condition
may be carried out. The owner of a structure damaged
by fire or natural calamity may stabilize the structure
immediately and rehabilitate it later under the
provisions Of this Chapter.
(E) Enforcement. The Planning, Building and Zoning
department shall assist the board by making necessary
inspections in connection with the enforcement of this
Chapter. The Planning, Building and Zoning department
shall be responsible for promptly stopping any work
attempted to be done without or contrary to any
certificate of appropriateness required under this
chapter; and shall further be responsible for ensuring
that any work not in accordance with a certificate of
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10875
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appropriateness is voluntarily corrected to comply with
said certificate.
(F) violations and Penalties. Any person who carries
out or causes to be carried out any work in violation
of this Chapter shall be required to restore the
designated property either to its appearance prior to
the violation or in accordance with a certificate of
appropriateness approved by the board. The following
procedures shall govern.
(1) Referral to the Preservation Board. The Planning,
Building and Zoning department shall refer all
violations to the board, unless such violation is
voluntarily corrected to comply with a previously
issued certificate of appropriateness.
(2) Preservation Board public hearing. The board
shall conduct a public hearing with notice as set forth
in section
(3) Decision of the Preservation Board. The board
shall make findings 'based upon the provisions of this
section and the guidelines set forth in section 23.1-
5(C) and shall take one (1) of the following actions:
(a) Reaffirmation of a previously issued certificate
of nppropriatenesa; or
(b) Issuance of an amended special certificate of
appropriateness with specified modifications and
conditions; or
..___(c) . Issuance of a . new • spacial certificate of
appropriateness with specified conditions.
The board may specify a reasonable limitation of
time within which the work authorized by the
certificate of appropriateness shall be commenced or
completed, or both. Appeals of any decision of the
board shall follow the same procedures as set forth in
section 23.1-5(B)(4)(e).
(4) Referral to the Code Enforcement Board. If the
work authorized by any certificate of appropriateness
issued pursuant to section (3) above is not commenced
and/or completed within the time specified, or if a
subsequent violation of a certificate of
appropriateness issued pursuant to this section is
found, the Planning, Building and Zoning department
shall initiate enforcement proceedings before the Code
Enforcement Board pursuant to the provisions of section
2-394 of the Miami City Code. This remedy shall be in
addition to and not in lieu of any criminal or civil
prosecution and penalty that may be provided.
(G) Conflicts. where there are conflicts between the
requirements of this chapter and provisions of the
zoning ordinance or other codes covering the same
subject, the most restrictive requirements shall apply.
(H) Application equally to private parties and public
bodies. The provisions of this chapter shall apply
equally to plans, projects, or work executed or
assisted by any private party, governmental body or
agency, department, authority, or board of the city,
county, or state.
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Section 2. The Code of the City of Miami, Florida, is
further amended by repealing existing Article V11 of Chapter 62
in Its entirety, and substituting in lieu thereof, an entirely
new Article VII, to read as follows:
"CHAPTER 62
ZONING AND PLANNING
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ARTICLE VII. HISTORIC AND ENVIRONMENTAL PRESERVATION
BOARD.
Sec. 62-70. Establishment.
There is hereby established a board, to be known as the
City of Miami Historic and Environmental Preservation
Board, for the purpose of carrying out the provisions
of Chapters 17 and 23.1 of the Miami City Code and
Article 7 of Ordinance No. 11000, the Zoning Ordinance
of the City of Miami, Florida, as amended.
Syc. 62-71. Membership.
The Historic and Environmental Preservation Board
(hereinafter referred to as the "board") shall consist
of nine (9) members and one (1) a ernate member, to be ��a 11�
appointed by the city commission.i• Ca`1R1 .' 01:1
COC Ll 7--
(1) Qualifications. It is intended that members and �COY(j 1
alternate members of the board established by this f Ali
article be persons of knowledge, experience, mature -( 7�
judgement, and background, having ability and desire to 1tela Li`ti��`� xk
_ act In the public interest and representing, insofar as c1C;
may be possible, the various special professional Clfi�
training, experience, and interests required to make
informed and equitable decisions concerning
preservation and protection of the physical
environment. To that end, qualifications of ineinbers
and alternate members shall be as follows:
(a) One (1) member shall be an architect
registered in the state of Florida.
(b) One (1) member shall be a landscape architect
registered in the state of Florida.
(c) One (1) member shall be a historian or
architectural historian oualified by means of education
or experience and having demonstrated knowledge and
interest in node County history or architectural
history.
2� It ls•the intent of the City Commission that members of the
defunct Heritage Conservation Board, at the time of
establishment of the herein Historic and Environmental
Preservation Board, shall continue to serve on the new
board; that membership on the Historic and Environmental
Preservation Board shall be comprised of the unexpired terms
of existing Heritage Conservation Board members, and that
vacancies on the Historic and Environmental Preservation
Board occurring subsequent to the effective date of this new
Article shall be filled according to the procedures set
forth in this Article.
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(d) One (1) member shall be an architect or
architectural historian having demonstrated knowledge
and experience in architectural restoration and
historic preservation.
(e) one (1) member shall be an experienced real
estate broker licensed by the state of rlorida.
(f) One (1) member shall be a person experienced
in the field of business and finance or law.
(g) Three (3) members shall be citizens with
demonstrated knowledge and interest in the historic and
architectural heritage of the city and/or conservation
of the natural environment, and may also qualify under
any of the above categories,
(h) One (1) alternate member shall qualify under
one of the above categories.
(2) Procedure for appointment. No appointment shall
be made by the city commission to membership on the
board until the city clerk shall have given notice of
the vacancy in a newspaper of general circulation in
the city at least thirty (30) days prior to the making
of an appointment, and the city commission shall have
solicited and encouraged public, professional, and
citizen organizations having interest in and knowledge
of the purpose and intent of the board to submit names
of persons and their qualifications as prospective
appointees to the board. At least five (5) days prior
to the making of any appointment, the City Clerk shall
publicly make announcement that the list of names
submitted, together with a short statement of the
qualifications of each person, is prepared and
available for public inspection and consideration.
In addition, the City Clerk shall, at least five
(5) days prior to the making of any appointment,
publicly make announcement that the names and
qualifications of prospective nominees submitted by
members of the city commission are available for public
inspection and consideration. No person shall be
appointed to membership or alternate membership on the
board whose name and qualifications have not been made
publicly available in the manner set out. In reaching
a decision on any appointment, the city commission
shall give due consideration to the qualifications thus
submitted.
(3) Terms of Office. Members and alternate members of
the board shall be appointed for three (3) year terms.
Members and alternate members may be reappointed to
j consecutive terms, subject to the procedures set forth
1 in part (2) above.
I (4) Vacancies. vacancies in membership or alternate
membership of the board shall be filled by the city
commission in the manner set forth in part (2) above,
and shall be only for the unexpirec term of the member
or alternate member affected:
' (5) Removal. Members and alternate members of the
board may be removed for cause by vote of not less than
three (3) members of the city commission; however,
f whenever a member or alternate member shall have within
a calendar year four (4) absences from regularly
scheduled meetings, the chairman shall certify same to
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the city commission. Upon such certification, the
=� member or alternate member shall be deemed to have been
removed, and the city commission shall fill the vacancy
pursuant to part (4) above.
Sec. 62-72. Functions, powers, and duties,
generally.
In addition to such other powers, duties, and authority
an may be set forth elsewhere in the Miami City Code
and in the Zoning ordinance, the board is hereby
authorised toi
(1) Maintain and update files from the Dade County
Historic Survey within the city for the purpose of
identifying and preserving those properties and
neighborhoods of special historic, aesthetic,
architectural, archeological, cultural, social, or
political value or interest. It shall endeavor to
improve and expand the survey with additional sites,
documentary information, oral histories, and other such
materials as may become available; and to periodically
reevaluate the survey to determine whether changing
times and values warrant recognition "-of new or
different areas of significance.
(2) Serve as aquasi-judicial instrument to designate
historic sites, historic districts, and archeological
zones pursuant to Chapter 23.1 of the Miami City Code.
(3) Serve as a quasi-judicial instrument to approve or
deny certificates of appropriateness pursuant to
Chapter 23.1 of the Miami City Code and Article 7 of
the Zoning Ordinance.
(4) Serve as a quasi-judicial instrument to approve or
deny certificates of approval pursuant to Chapter 17 of
the 14iem1 City Code.
(5) Recommend to the city commission, in reference to
specific properties or general programs, the use of
preservation incentives such as, but not limited to,
transfer of development rights, facade easements,
financial assistance, public acquisition, building code
amendments, and special zoning regulations.
(E) Maintain a record of unique environmentally
significant lands or sites within the city.
(7) Increase public awareness of the value of historic
and environmental preservation by developing and
participating in public information programs.
(8) Mal;e recommendations to the city commission
concerning the utilization of grants from federal and
state agencies or private groups and individuals, and
utilization of city funds to promote the preservation
environmentally, historically, and aesthetically
gnificant properties and neighborhoods.
Promulgate standards for architectural review in
dition to those general standards contained in
I Chapter 23.1 of the Miami City Code.
(10) Evaluate and comment upon decisions of other
public agencies Affecting the physical development and
appearance of environmentally, historically, and
aesthetically significant properties and neighborhoods.
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_17- 10875
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(11) Contact public and private organizations and
individuals and endeavor to arrange intervening
agreements to ensure preservation of environmentally,
historically, or aesthetically significant properties
for which demolition is proposed.
(12) Promote and encourage communication and exchange
of ideas and information between the board and owners
of historically and environmentally significant
properties, potential developers,. public officials,
financial institutions, etc.
(13) In the name of the city and with the consent of
the city commission, apply for, solicit, recelve, or
expand any federal, state, or private grant, gift, or
bequest of any funding, property, or interest in
property in furtherance of the purposes of historic and
environmental preservation.
(14) Approve historic markers and issue recognition to
historic properties within the city.
(15) Adopt and amend rules of procedure.
(16) Advise the city commission on all matters related
to the use, administration, and maintenance of city -
owned historic properties and e11vironmenteI
preservation districts.
(17) Any other function which may be designated by
resolution or motion of the city commission.
Sec. 62-73.
(1) Officers.
vice-chairman
one-year term
offices as it
Proceedings.
The board shall select a chairman and
front among its members to serve for a
and may c;;eate and fill such other
may deem necessary or desirable.
(2) Rules of procedure. The board shall establish
rules of procedure necessary to its yuveriting and the
conduct of its affairs, in keeping with the applicable
provision of the city charter, 6rdinances, and
resolutions. Such rules of procedure shall be
available In written form to persons appearing before
the board and to the public upon request.
(3) Meetings. The board shall meeL• at least once per
month, except August, wiLh all meetings open to the
public.
(4) Quorum; voting. Five (5) members shall constitute
a quorum. All decisions of the board shall require
concurring vote of a majority of the members present;
however, all actions on designations pursuant to
Chapter 23.1 of the Miami City Code and all actions on
certificates of appropriateness pursuant to Article 7
of the Zoning Ordinance shall require a concurring vote
of at least five (5) members of the board, and tie
votes shall be construed as a denial.
(5) Status of alternate member. In the temporary
absence or disability of a member, or in an instance
where a member is otherwise disqualified to sit on a
particular matter, the chairman of the board, or the
vice-chairman in his absence, shall designate the
alternate member to sit as a board member to obtain a
full membership of nine (9), or, as nearly as possible,
a full membership. when so acting, the alternate
_18-
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member shall have full rights of participation and
voting as members, and his vote shall be deemed that of
a member in reaching a decision on a matter. In
Instances where the alternate member is not sitting as
a member, he shall have the right to participate in
board discussions and to ask questions, but he shall
have no right to vote or make motions. Where the
alternate member has been duly designated to sit as a
member on a particular matter and consideration of that
matter has begun, the alternate shall continue to sit
as a board member through disposition of the matter,
and he shall not be replaced should the member in whose
stead he is sitting later be present.
(6) Disqualification of members or alternate member.
If any member of the board or the alternate member
called on to sit in a particular matter shall find that
his private or personal interests are involved in the
matter coming before the board, he shall, prior to the
opening of the discussion on the matter, disqualify
himself from all participation of whatsoever nature in
the cause; or he may be disqualified by the votes of
not less than a majority of total membership of the
board, not including the member or alternate member
about whom the question of disqualification has been
raised.
(7) Assignment of personnel. The city manager shall
assign adequate staff for the board to carry out its
responsibilities and duties, including but limited to,
representatives from the departments of Planning,
Building and Zoning and Law.
(8) Public racord. Minutes of each board meeting
shall be prepared by staff representatives assigned by
the city -.manager, under the supervision and direction
of the board. Conies of the minutes and all
certificates issued by the hoard shall be filed with
the Planning, Building and Zoning department.
Sec. 62-74. Compensation.
Members and alternate members of the board shall serve
without compensation, but shall be reimbursed for
expenses necessarily incurred in the performance of
their duties, subject to the prior approval of the
director of the Planning, Building and Zoning
department.
Sec. 62-75. Preservation officer.
The city manager shall appoint a person from the
Planning, Building and Zoning department to serve as
Preservation Officer to assist the board. The
appointee shall be experienced and knowledgeable in
respect to architectural history, urban design, local
history, landscape materials, site planning, and land
use control regulations. In addition to such duties as
may be set forth in Chanters 17 and 23.1 of the Miami
City Code and Article 7 of the Zoning Ordinance, the
preservation officer shall:
(1) Schedule meetings of the board, prepare agendas,
and ensure that proper notice is carried out by persons
or departments assigned to such duties.
(2) Provide applicable advice, standards, guidelines,
and procedures to prospective applicants for
certificates of appropriateness in historic sites,
historic districts, and archeological zones and for
-19-
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10575
IJ
certificates of approval in environmental preservation
districts.
(3) Upon receipt of a complete application for a
certificate of appropriateness or certificate of
approval, review such application, which may include a
field check of the site and referral to other
_ departments or agencies as necessary, to determine any
adverse effect upon the public welfare; and approve or
deny standard certificates of appropriateness and
standard certificates of approval.
(4) Provide recommendations to the board on all
proposed , designations, special certificates of
appropriateness, and special certificates of approval,
as well as any other item requested by the board.
(5) Prepare summary reports of all decisions on
special certificates of appropriateness and special
certificates of approval, including criteria and
conditions for approval or denial.
(6) Issue all approved certificates of appropriateness
and certificates of approval.
(7) Review and approve all final development plans for
historic sites, historic districts, archeological
zones, and environmental preservation districts for
compliance with terms and conditions of applicable
certificates of appropriateness or certificates of
approval, prior to issuance of any building permit.
(8) Maintain and update the Official Historic and
Environmental Preservation Atlas of the City of Miami,
Florida, delineating historic sites, historic
districts, archeological zones, and environmental
preservation districta.
(9) Work with other city departments, public agencies,
and private groups as required to provide a continuing
effort to protect and preserve significant elements of
the man-made and the natural environment through public
education and encouragement of sound preservation
policies."
Section 3. All ordinances or parts of ordinances insofar as
they are inconsistent or in conflict with the provisions of this
Ordinance are hereby repealed.
I Section 4. If any section, part of section, paragraph,
clause, phrase or word of this Ordinance is declared invalid, the
remaining provisions of this Ordinance shall not be affected.
Section 5. This Ordinance shall become effective thirty
(30) days after final reading and adoption thereof.
IPASSED ON FIRST READING BY TITLE ONLY this 25th day of
October ,, 1990.
10875
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PASSED AND ADOPTED ON SECOND AND FINAL READING BY TITLE ONLY
this 25th day of April
?AVIER L. SUAR Z, MAY R
ATTEST
HAT Y' RA I
CITY CLERK
PREPARED AND
APPROVED 8Yt
LL E. MAXWELL
IEF ASSISTANT ITY ATTO NEY
APPROVED AS TO FORM AND
CORRECT S.
J�RGE L. ERNANDE2
C TY AT HEY
JEM/bf/bss/M666
Submitted into the public
record in connection vrith
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Cii:y- Clerk
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_ 10875
& ASSOCIATES, INC. ENGINEERING - CONSTRUCTION MANAGEMENT - LAND PLANNING
BERTRAM S. WARSHAW, P.E.
LANCE ATKINS, P.E.
DOUGLAS L. BRAAKSMA, P.E.
S. ARTURO TABLADA, P.E.
December 16, 1991
Ms. Lucia A. Dougherty
Greenberg, Traurig, et al.
1221 Brickell Avenue
Miami, FL 33131
Re: Jack Watson Residence
WPL #9183
Dear Ms. Dougherty:
As per your request, representatives from this office have
inspected the above referenced home. The purpose of this
inspection was to determine the structural integrity and soundness
of that structure.
The structure is a combination of wood framed, masonry and concrete
construction. The first floor is an elevated structural concrete
floor system which is constructed using hollow -core clay tile block
to form areas in between concrete joist. These concrete joist are
then framed into reinforced concrete beams at the perimeter of the
building and at two intermediate locations.
The reinforcing of the concrete joists has corroded and as a
process of this corrosion, the concrete has spalled away from
almost all of the joists. This spalling has occurred as a direct
result of expansion of the reinforcing. Most of the clay tile has
been broken and fallen off. The majority of structural rein-
forcement is exposed in the joist system rendering the structural
floor system unusable. The reinforced concrete beams also exhibit
numerous signs of deterioration in the form of spalling and exposed
steel. Several cracks are evident in these beams. In general, the
floor system has deteriorated past the point of patch and repair.
The floor system, when viewed from the inside of the house, shows
signs of cracking and differential movement which is reflective of
the structure below.
Submitted into the public
record in connec'ion with
itern-4" % on
SUITE M-102 • 2665 S. BAYSHORE DRIVE • MIAMI, FLORIDA 33133 ' att- y Hirai
PHONES: (305) 859.8404, WATS (800) 545.8404, FAX: (305) 859.8407 City Cl zIk
i 1 ...
"nic iize pubjlc
Ms. Lucia Dougherty record in connection with
P December 16, 1991
Page - 2 itemfZ--(L _ona-
r Matty Hirai
7
City Clerk
The first and second floor walls and associated second floor
framing exhibit signs that are reflective of the movement which is
on going at the first floor line and foundation. Numerous cracks
are visible, both interior and from the exterior of the structure.
Where the exterior building walls are of a masonry construction, it
appears that no concrete tie beams or columns were used in the
w original construction. This is indicated by severe cracking at the
corners of the structure along with noticeable cracks of
significant magnitude in the midspan of the exterior walls.
The structure is and has been subjected to a noticeable settlement
problem at most of its foundation. Multiple inch settlements are
easily observed and large scale settlement and cracking is
prevalent throughout the structure. There have been attempts to
correct the settlement, but these attempts have failed as indicated
by recent settlement cracks.
*� The structure in its present structural condition is not capable of
f' supporting Code required loadings. Load capacity of the floor is
very marginal and, given the present structural condition, a
partial collapse of the floor system could occur at any time.
i.
Structural corrections to this residence are possible, but whether
r or not the structural repairs would make economic sense is quite
questionable. In order to structurally repair the foundation and
first floor, the entire house would have to be pinned or
temporarily supported in some manner off of a temporary foundation
while the existing foundation and first floor structural system
were completely removed and replaced with a new concrete foundation
and floor framing system. Whether or not the remaining wood and
masonry wall framing system could support these temporary loads is
questionable. Once the foundation and first floor structural
system were replaced, the remaining building wall and framing
system would be connected back to the new system. More
!� differential movement and settlement could be expected in the
building framing system which could cause actually more damage than
what is present at this time.
a'
The estimated cost to repair the structure is as follows:
a-
1. Underpin and stabilize existing structure $ 40,000
3:
2. Removal of foundation and first
f floor framing $ 60,000
3. New foundation $ 45,000
a
;1,
JACK WATSON RESIDENCE
WPL #9183
December 6, 1991
List of Photographs
1-15. First floor deck, indicating the conditions of the
pilars, grade beams and the clay tile shell and web
spanning in between the grade beams.
16. Main elevation, west.
17. Main elevation, west detail.
18. North elevation.
19. North elevation detail.
20. North elevation detail.
21. East elevation.
22. East elevation, servants quarters.
23. East elevation detail.
24. East elevation entrance detail.
25. East elevation detail.
26. East elevation detail. (crack indicates no tie
column).
27. South elevation.
28. South elevation detail.
29. South elevation detail.
30. South elevation detail at open balcony.
31. South elevation detail entrance.
32. South elevation, servants quarters.
33. South elevation, servants quarters detail.
34. Pool.
35. Crack and settlement, first floor office.
36-48. Assorted cracks on the walls and ceilings due
to settlement.
49-53. Attic details.
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