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HomeMy WebLinkAboutAppeal LetterThe Honorable Manuel Diaz Mayor Hearing Board Division Historic and Environmental Protection Board City of Miami, Florida 444 S.W. 2d Avenue 7th Floor Miami, Florida October 20, 2005 The Honorable Members of the City Commission, City of Miami Seriterfitt ATTORNEYS AT LAW Re: Request For Review: Miami Historic and Environmental Preservation Board, Designation of Coconut Grove Playhouse and surrounding property October 5, 2005. Dear Mayor Diaz and Commissioners: We represent Coconut Grove L.L.C. and with respect to this appeal, pursuant to Section 23-4 of the City Code, of the historic designation of the Coconut Grove Playhouse (the "Playhouse") and surrounding non -historic property. The historic designation on appeal was heard by the City of Miami Historic and Environmental Protection Board (the "Board") on October 5, 2005. This letter shall serve as Coconut Grove L.L.C.'s Notice of Appeal and formal request for review of the October 5, 2005, Board decision pursuant to Section 23-4(b)(5) of the City of Miami Code. A $500 filing fee and a $399 notice fee are enclosed. Please notify us of any additional fees. For your convenience the pertinent portions of the record are attached. Attachment 1 is the transcript of the October 5, 2005, hearing before the Historic and Environmental Preservation Board. Attachment 2 is a copy of the Historic Designation Report produced by the City. Attachment 3 is a compilation of the materials submitted to the Board by the Playhouse, and contains the Playhouse's position paper, the Expert Report of Mr. Marcus, the Playhouse's historic architecture and preservation consultant (Att. 3, Ex. A), and the City's original notification of proposed historic designation (Att. 3, Ex. B). City Commission October 20, 2005 Page 2 FACTUAL BACKGROUND History of the Playhouse As explained in the City's Designation Report (Att. 2) and in the expert report of Mr. Marcus (Att. 3, Ex. A), the Playhouse has had a long and colorful history. Over the course of this history, however, the several instances of rebuilding and incorporation of disparate elements out of character with the original structure have moved the Playhouse away from its original Mediterranean Revival architecture. This left the exterior with a mishmash of styles and removed the historic integrity of the building's design, materials and workmanship. The Playhouse was first built in 1927, based on designs by architects Kiehnel & Eliot. It was designed and operated as a movie palace, but was not financially successful. After struggling for years it closed in 1930, and fell into a state of disrepair. The building was substantially remodeled in 1955 to accommodate large stage productions. As part of this remodeling the original interior was removed, as were extensive elements of the original facade. The 1955 construction therefore destroyed many of the historic elements of the Playhouse. Several original design elements of the Playhouse facade have been lost in favor of modernist elements that are not true to the original 1927 design or its Mediterranean Revival architecture. As noted in the Designation Report, the 1955 redesign removed several elements, choosing to "abandon any sense of historicism..." in favor of contemporary design elements. Designation Report, Att. 2 at 11. The sole remaining historic elements are the south and east facades of the Playhouse. Later in the 1970s two previously freestanding buildings were incorporated into the Playhouse. These buildings were not part of the original Playhouse, do not exhibit Mediterranean Revival style consistent with the original Playhouse, and are described in the Designation Report as "incongruous" elements that are "out of character with the original theater." Designation Report, Att. 2, at 14. City Commission October 20, 2005 Page 3 The original property upon which the 1927 theater was built essentially included just the area underlying that building. At a later point in time the property comprising the present parking area and the buildings added in the 1970s were joined to the Playhouse parcel. As noted by the City's own consultant on the record, these additional parcels have no historic value and no historic connection to the 1927 Playhouse. They also, again as found by the City's own consultant, are not consistent with the Mediterranean Revival architecture of the original 1927 Playhouse (Designation Report, Att. 2, at 14.). Their addition therefore further detracted from the integrity of design, materials and workmanship needed to support a designation. II. The Designation Report The proposed historic designation of the Playhouse was based upon a historic designation report prepared by Janus Research on behalf of the City, which argued that the original design (i.e., the building elements from 1927) had historic significance. Att. 2. That report noted that certain aspects of the Playhouse facade continued to reflect the original 1927 design, and used these aspects as a basis to recommend designation of the original Playhouse structure. However, the report itself notes that the substantial remodeling of the playhouse in 1955 introduced a number of "modernist" elements, out of character with the original design, as the 1955 remodel chose to "abandon any sense of historicism." Att. 2 at 11. The report further noted that certain buildings near the playhouse and later connected to it were not part of the original structure, and were inconsistent with the historic design. These were described by the report was "incongruous" elements that are "out of character with the original theater." Id. at 14. Thus, the City's own staff report noted that the Playhouse lacked the integrity of design needed for designation. This is further evidenced by the expert report of Mr. Marcus, who likewise notes that the sole remaining historic elements are portions of the south and east facade of the playhouse, and that the remainder of the exterior the building has lost its historic qualities and Mediterranean Revival elements. Att. 3, Ex. A. City Commission October 20, 2005 Page 4 II. The Board Proceedings Below Under section 230-4 of the City Code "integrity of design, setting, material workmanship, feeling and association" is a threshold requirement for any historic designation and one that is solely lacking in the Playhouse as it presently exists. Despite this key deficiency, however, the Board chose to go forward with the designation. And, as discussed below, it refused to consider proposals by the Playhouse that would have limited the designation to just the remaining historic elements, the only aspects over which there was even arguable jurisdiction. Before reaching that issue, however, it is important to note an even more problematic error. At the very beginning of the October 5th hearing, the City's consultant, Ms. Uguccioni, noted a fundamental problem with the proposed designation: the legal description in the historic designation report inadvertently included areas that were never part of the original Playhouse site, including the parking lot and buildings that were purchased in later decades and connected to the Playhouse, but had no historic connection to the Playhouse.1 Ms. Uguccioni noted this error on the record at the outset and advised that it must be corrected before proceeding on the designation: In this particular case 1 wanted to point out to you that the legal description includes the parking lot, which is directly north of the Coconut Grove Playhouse. And I believe that after having thought about it a great deal, is I cannot certainly justify any historic significance to a parking lot. And in the beginning that parcel did not belong to the Coconut Grove Theater. So l want to make that perfectly clear. Tr, Att. 1 at 4 (emphasis added). The reason for this error was later explained in greater detail to the Board: ' As noted below, this was not intentional and was due to an oversight that the City's consultant tried mightily to correct at the hearing, with the Board refusing to take account of her correction and suggested course of remedial action. (Le., correcting the legal description before proceeding). City Commission October 20, 2005 Page 5 MS. UGUCCIONI: I certainly don't want to take anybody's time on this, but as I reviewed it again I was concerned that I had not made the case [for inclusion of the parking lot area]. And it's just a matter of course when we do these designation reports to go to the assessor's record and copy down the legal description. It wasn't until later that I understood the implications as it concerns the Coconut Grove Theater. I am certainly amongst you in wanting to have some participation in what could be built on that parking lot, which is a substantial size lot, but I want you to understand that it cannot be justified from a historical point of view. And if we stay within the parameters, as I understand them, of our historic preservation ordinance, then I don't think we can justify it. MS. SOLERA: Okay, then I have a question for you. Obviously they owned the footprint, but you must have had something around the footprint. MS. UGUCCIONI: Right. MS. SOLERA: How much of it was part of the original playhouse? MS. UGUCCIONI: I think we're gonna have to have almost a surveyor go out and look at it, quite honestly. I went back to the Sanborn maps this morning and looked at -- at the historic footprint and it is about what appeared to be maybe ten inches away from the property line... Id. at 42. Wanting desperately to include the parking lot area —which again was not associated with the original theater -- several board members continued to press Ms. Uguccioni for a basis to designate the entire property. Her response was to again, and again, and again, to confirm that this would be improper and would have no basis in the history of the Playhouse, the evidence, or the City Code requirements for designation: • "Well, may I just say for the record that that parking lot -- I'm terribly sorry -- that parking lot was never historically associated with the building when it was built in 1926. So in terms of just finding its association, it's really just a matter of circumstance that it -- at some later City Commission October 20, 2005 Page 6 date the property was purchased by the Coconut Grove Playhouse." Tr. Att. 1, at 40-41 • "If you look at all of the original newspaper clippings and the historical photographs, you will see that the building is very self-contained. It has -- self-contained. It has wings on Charles and it has a wing on Main, which is a little bit shorter than that which is on Charles. Next to it there was a blank space. And then there was the building that's been described as 1910, but my records show 1925. The two-story building. It did not have a parking lot next to it at that time. It -- the parking in 1926, we didn't have off street parking requirements and so forth for commercial buildings, ..., and people didn't have, I guess, that many private automobiles, so -- so the point is that the context for this theater as either a performing arts theater or as a movie house, which it was originally, does not depend on that -- that surface parking lot to give it its history...." Tr at 61-62. • "It [the parking lot] is not part of its [the Playhouse's historical context and, therefore, should not, in my opinion, be included. And I would suggest to you that there probably would need to be a new legal description presented to you if you, in fact, bought this line of reasoning." Tr. at 62. Thus, at the outset the Board was told they were proceeding on a fatally flawed legal description that included non -historic property due to a simple clerical error. They were then asked on the record nearly a half -dozen times by Ms. Uggonici, the City's own consultant, and by the Playhouse to step back and correct this problem. Tr., Att. 1, at 28, 40-42, 49-50, 53, 66. But even that, not to mention the City attorney's admonishment that an incorrect legal description would result in a "flawed designation" (Tr. at 57) did not deter the Board from pushing forward, the stated errors in its exercise of jurisdiction notwithstanding. The clear solution to the problem was also presented, by Ms. Uggonici, the Playhouse's representative, Judge Chavies, and the City attorney: The Board could and should have deferred until a proper legal description was put before it. They would have none of that, however, as they were determined to make a designation decision that day, right or (as proved the case) wrong. City Commission October 20, 2005 Page 7 The Board therefore refused to allow correction of the undisputed defects in the designation report, or to take account of the lack of evidentiary support for its decision. The apparent reason: that the Board wanted to reserve powers over all aspects of the Playhouse site, -- not just the Playhouse building -- no matter how far removed from the mission of historic preservation. Indeed, the Chair himself made clear on the record that he intended to exercise what can only be described as plenary planning and zoning powers over all of the real property, historic or not: [T]his is probably the most important development parcel [the non - historic property, including the parking lot]. -- if you call it a development parcel -- historic parcel [the original Playhouse] and development parcel. You can talk to any of the restaurateurs of -- on Commodore Plaza. They all depend on a thriving playhouse to make the Grove be the destination that it needs to be. And there's all -- there's many, many considerations to this property. One thing, that I think it was Ron Nelson brought up, it backs up to what his -- the Bahamian section of the Grove to my -- unless I'm mistaken, the barbed wire on that parking lot is still there at the back of that parking lot separating the playhouse from the Village West Island District. So this parcel, when it is re -configured into whatever it's going to -- you know, whatever plans are going to be -- eventuated on it, needs to consider all of the neighbors. It needs to consider the commercial aspects of it. It needs to consider what it presents to Main Highway... . And, certainly, the transportation that's going to be developed in the road, whether they have bus circulators or a trolley, certainly one of the considerations is driving -- that is driving this playhouse site is there is -- it's one of the last remaining places that there can ever be any parking provided for the central business district. So all those things being said, rather than go fast, this board member is inclined to go slowly with this to develop plans in stages that come back before this board that get the buy -in from the community. City Commission October 20, 2005 Page 8 Ex. 1 at 44-45 (emphasis added). Thus, rather than addressing the requirements of the historic preservation ordinance (Chapter 23 of the City Code) the Board was clearly intent on including as much property as possible in its designation -- not to address historic preservation, but to later rule over issues such as the design of the parking area, concerns of neighbors, transportation plans, parking and perceived economic impacts on local businesses. None of this is within the jurisdiction of the Board, and its use of such factors to justify an expanded scope of designation only confirms that it seized upon the erroneous legal description to include property over which it had no jurisdiction, for the purpose of the later ruling on subject matter over which it likewise has no jurisdiction. Later, when one Board member tried to note to the Chair that he was being sidetracked, the Chair attempted to disclaim any attempt to act improperly, but could not help again confirming the extra jurisdictional intentions behind the flawed decision below. being a Groveite for many years and very concerned with the Bahamian section of the Grove and being very con -- friends with most of the restaurateurs on Commodore Plaza, that the solution on this historic property that's eventually gonna evolve is gonna have -- you think you've got a lot of public testimony this time around? There's gonna -- believe me, the Grove can turn out in far greater numbers than this. Again, the consideration was not whether the Playhouse met the requirements for historic designation, whether the Playhouse had the required integrity of design, workmanship, etc., or, if so, whether the legal description conformed to the original Playhouse site. All those considerations were paid scant attention in favor of a predetermined decision based on improper concerns over how the decision would be perceived in the Grove, from a perspective more akin to planning and zoning than historic preservation. To be sure, none of this had anything to do with the historic status of the building or any other factor within the Board's jurisdiction. While clearly the most glaring error, the use of the incorrect legal description was not the only problem with the Board's decision. Additionally, the evidence presented failed to demonstrate the requisite integrity of design, workmanship and materials needed to City Commission October 20, 2005 Page 9 support designation for the Playhouse. As noted, the City's designation report noted that only a few historic elements remained. The Playhouse's expert, Mr. Marcus, further testified that only the south and east facades continued to have historic value, a point that was not disputed. Ex. 1 at 14. All that was said in response was that the Board should designate the entire building to expand its jurisdiction. But in fact the evidence showed that there was no historic value left in the remainder, and that the modifications to the original building and addition of the "incongruous" and previously separate structures further defined from its integrity of design. The building as a whole, which is a mishmash of historic and "modernist" (Designation Report, Att. 2 at 11) elements no longer has the integrity needed to support a designation. For that reason the Playhouse offered to accept a designation of just the historic elements, which was rejected by the Board. Having chosen to include the entire structure, with its incoherent mix of styles, the Board disregarded the integrity requirement of the Code. Finally, it should be noted that the inclusion of non -historic, previously separate, buildings (due in part to the incorrect legal description) led to further incongruity and moved the decision even farther from the integrity requirement of the Code. Indeed, the City's own report notes that these buildings lack any consistency with the Playhouse and are "incongruous" elements. This was further confirmed by the City's consultant on the record. Tr. 25-27, ARGUMENT 1. Overview of Legal Requirements for Historic Designation and Review by City Commission Chapter 23 of the City Code controls the designation of historic structures. Several requirements must be met for a site to qualify. As a threshold requirement a structure must meet both of the following: • "have significance in the historical, cultural, .... aesthetic or architectural heritage of the city, state or nation;" and City Commission October 20, 2005 Page 10 ■ "possess integrity of design, setting, material workmanship, feeling and association;" City Code § 23-4. The requirements of "integrity of design, setting, material workmanship, feeling and association" is thus a threshold requirement for any historic designation. The Code goes on to specify eight additional factors, only one of which must be met. These include "Portray the environment in an era characterized by one or more distinctive architectural styles," and "embody the distinguishing characteristics of an architectural style or period." City Code §§ 23-4(a)(4) and (a)(5). II. The Board Acted On A Designation Report That The City's Own Consultant Indicated Was Erroneous. A. The Board adopted a resolution based on a legal description that the City's own consultant stated was erroneous and included property that was never intended to be designated and had no historic connection to the 1927 theater. As noted above, the undisputed evidence at hearing, and the presentations by both the City's staff and the Playhouse demonstrated that the legal description upon which the Board proceeded was incorrect, that it included parking areas and buildings that had no historic connection to the 1927 theater and no basis for inclusion in the designation. The record further shows that this was the result of a simple oversight and never intended by the City staff or consultant to be the legal description presented. Section 23-4 of the City Code requires a historic designation to meet a number of specified criteria. The evidence presented showed that none of these requirements were met by the parking lot area and buildings that were included in the designation due to an over -inclusive and incorrect legal description. None of this additional area was part of the original 1927.Playhouse site and none had any connection to the Playhouse as originally built. Thus, there was no legal or factual basis for use of this overly broad legal description. The City Attorney quite correctly pointed out below that proceeding City Commission October 20, 2005 Page 11 under this legal description would create a historic designation that is "flawed" and subject to reversal by the City Commission. Tr. at 59. B. The Board should have allowed the presentation of a corrected designation report, but disregarding the advice of its consultant and the City Attorney and chose to proceed for improper reasons. Given the erroneous and over -inclusive legal description, the Board was urged to defer hearing the matter to allow the problem to be corrected. This was stated on the record by Playhouse representative Judge Chavies, who called the Board's attention to the fact that it could not properly proceed on a mistaken legal description and urged the Board to pay at least some semblance of attention to proper procedure: I think procedures -- procedures are important, and we should do the right thing. And I think the right thing is to designate that which has historical significance. And that's the building. It's not the parking lot. And we have heard the report from Janus themselves who say that it was a mistake, that it shouldn't have been in there and that it does not have that historical significance to be considered today. And if there's any question, at the very least, we just ask to defer on it, that portion of it. Tr. Att. 1 at 53. While recognizing that, as the applicant, the Board could defer the matter and fix its errors (Tr., Att. 1, at 63), the Board decided to proceed out of what can only be described as a stated desire to seize upon the incorrect, over -inclusive legal description to gain board authority over the larger area, historic or not. In so doing, the Board again disregarded the advice of its consultant, who supported the view that deferral was required to correct the legal description: MS. UGUCCIONI: It's [the non -historic area] not part of its [historic] context and, therefore, should not, in my opinion, be included. And 1 would suggest to you that there probably would need to be a new legal description presented to you if you, in fact, bought this line of reasoning. City Commission October 20, 2005 Page 12 Tr., Att. 1, at 62 (emphasis added). Having gone forward knowing it was acting in error the Board created a "flawed designation," as the City attorney present at the hearing warned, only to have her advice disregarded. Tr., Att. 1, at 57. III. The historic designation of the Playhouse failed to meet the requirements for historic designation and lacked competent substantial evidence. A. The Board's decision to include the parking area and the additional structures did not comply with the standards for historic designation and was not based on competent substantial evidence. As noted, all the record evidence indicated that the parking area and the previously separate buildings connected to the Playhouse had no historic connection to the 1927 theater. There structures share none of its architecture. And the parking lot, obviously is not a structure at all, and therefore cannot possibly have historic significance. This is especially true given the undisputed evidence that the present parking area had no historic connection to the original theater. All of this was carefully set out in the Playhouse's written submission and oral presentation, and confirmed by the report of the City's own consultant, who stated repeatedly that the parking area had no connection to the original theater, and in her report described the additional buildings as, in addition to having no historic connection to the theater, being "incongruous" elements that are "out of character with the original theater." In other words, all of these additions detracted from the integrity required under section 23-4 as a threshold for historic designation. Not a shred of competent substantial evidence supports the conclusion that these additional areas have any historic connection to the theater, and indeed every expert who touched on the subject reached the opposite conclusion. Thus, in addition to proceeding on a designation report that was admitted to contain a fatal error, the Board's decision to include this additional area confirms that its decision was arbitrary and capricious and not in any way based on competent evidence or the application of the requirements of the City Code. City Commission October 20, 2005 Page 13 B. The Playhouse lacks the architectural integrity that is a threshold requirement for any historic designation. Under the designation report the stated basis for designation is the architectural style of the original Playhouse, that is the Playhouse as it existed in 1927. The report focuses on the numbered factors in section 23-4 of the code, which it applies to the surviving Mediterranean Revival elements of the south and east Playhouse facade. However, this ignores the incongruity caused by the series of modifications to the Playhouse described above. The Board failed to take account of this, and in so doing also failed to properly apply the threshold requirements of in section 23-4 of the City Code. This requires that a designation be applied only to a structure that "posess[es] integrity of design, setting, material workmanship, feeling and association ..." The Playhouse -- as it presently exists -- fails to meet this requirement, as only certain surviving elements (namely elements of the south and east facade) continue to embody the original design upon which the proposed designation is based. The remainder of the facade and other attached elements introduce inconsistent modernist elements, lack historic character, and detract from integrity of design. See Designation Report, Att. 2, at 11-14; Att. 3. Even were the Playhouse to meet the requirements for historic designation (which it does not), only certain aspects of the Playhouse have historic significance, as explained by Playhouse expert, Mr. Marcus: "It did say in the staff report that the south and east facades were the only portions of the building of architectural significance and we do agree with that." Tr., Att. 1, at 14. Thus, even were designation proper in the first instance, any designation order should have been limited to those surviving historic aspects. There was simply no competent substantial evidence to include other, non historic elements. The simple fact is that this requisite "integrity" is not present and thus the Playhouse fails to meet the legal requirements for historic designation. Nothing in the record supports a contrary conclusion. The Board's decision to designate the Playhouse was therefore arbitrary and capricious, failed to follow the requirements of law, and was contrary to the competent substantial evidence of record. City Commission October 20, 2005 Page 14 Very truly yours, Michael B. Chavies Akerman Senterfitt One Southeast Third Avenue 28th Floor Miami, FL 33131-1714 Gabriel E. Nieto, P.A. Squire, Sanders & Dempsey L.L.P. 200 South Biscayne Blvd. 40th Floor Miami, FL 33131-2398 cc: Kathleen Kaufman, City of Miami Preservation Officer M 1A2001 416956v1