Getting Development Moving Again During COVID-19

Among the many things put on hold in Miami Beach by the COVID-19 shutdowns is the development process which requires public meetings by land use boards that include opportunities for presentations and feedback on proposed projects. Known as quasi-judicial hearings because of the opportunity to present testimony, the process is more formal than say a Commission meeting in which legislative items are discussed. The distinction is particularly important in today’s environment in which local governments have gradually begun to hold virtual meetings following an opinion by Florida Governor Ron DeSantis that allows them on a temporary basis while safer-at-home orders are in effect.

Getting the development process moving again has created some unlikely allies in Miami Beach. The leading preservation organization, the Miami Design Preservation League (MDPL), finds itself advocating along with land use attorneys for the ability to conduct virtual meetings using a platform such as Zoom, an online meeting tool that has seen its use skyrocket as the nation looks for ways to conduct business meetings as well as personal gatherings.

MDPL Executive Director Daniel Ciraldo said, “Aside from the health risks of coronavirus, I think the next big risk is economic risk and impact and we all know by now in this city that preservation is a form of economic development.” While MDPL participates in all of the land use board hearings which include the Design Review and Planning Boards, they are often most heavily focused on the Historic Preservation Board which has jurisdiction over any development within the City’s historic districts. 

Ciraldo said he’s concerned about the delays impacting some important historic structures that are in various stages of preservation and which cannot move forward now that the processes have been halted, notably the old Versailles Hotel and The Raleigh (above). “It’s a lot of work, a lot of time for these property owners who have pretty big carrying costs and also just for the viability of the projects.” 

After seeing other jurisdictions using Zoom, Ciraldo reached out to Miami Beach Planning Director Tom Mooney to suggest the City look into virtual meetings to keep the land use process moving. In his research, he learned land use attorneys Michael Larkin and Nicholas Rodriguez of Bercow Radell Fernandez Larkin & Tapanes had made a case to the City for allowing the hearings to proceed with a platform such as Zoom.

“Sometimes these different groups are on opposite sides,” Ciraldo said. “It appears on this one we’re on the same side. We all want these projects to be reviewed as soon as it’s feasible so that there will be these projects to look forward to when things reopen.”

In a memo to Mooney, City Manager Jimmy Morales, and City Attorney Raul Aguila, Larkin and Rodriguez argue virtual meetings such as Zoom meet the requirements for quasi-judicial hearings including public notice, the ability to present evidence and cross-examine witnesses, opportunities for the public to comment, and a public voting process. 

The attorneys note two cities that have conducted quasi-judicial public hearings using Zoom, the City of North Lauderdale and the Village of El Portal, “in a manner that maintained decorum and preserved the rights of all stakeholders.”

“These local governments recognize the public detriment that will occur if a significant backlog of quasi-judicial matters develops over this prolonged global health crisis and are utilizing innovative technological solutions to mitigate this public detriment and the risks associated with holding virtual quasi-judicial public hearings. The City is in a similar position to remedy future public detriment, minimize risk, and promote innovation.”

Ciraldo said, “We’re talking about hundreds of millions of dollars of projects that are in limbo.” Given the uncertainty of when and how meetings and public gatherings will take place again, Ciraldo said, “We [MDPL] support the exploration of virtual meetings. We look at it, honestly, as part of our resiliency toolbox. Resiliency is about coming back from shocks and challenges… we’ve had our fair share, hurricanes, and, obviously, now with this. We’ve got to start looking strategically at how we can keep the real economic drivers – those that are feasible – to keep those going in order to be able to bounce back from this.”

“Looking back at September 11th, the economic impact on the City,” Ciraldo noted, “Miami Beach tends to jump back pretty well from big shocks, so we’re lucky. We have this brand that is strong, but we still need to keep looking for ways to help the City get back on its feet and get these things moving forward.”

City Commissioners at the recommendation of the Administration took a compromise position this week, allowing for virtual meetings for discussion only at the May Design Review Board and Historic Preservation Board meetings to provide feedback on projects to applicants but no votes. Projects would have to come before the Boards at a future date for a formal hearing process and vote.

The Planning Board will be allowed to hear legislative items (ordinances referred to them that will be considered by the Commission at future meetings with public hearings) but they will not hold quasi-judicial hearings virtually. 

Mooney said the City looked at Zoom and other platforms. In an email response to RE:MiamiBeach, he said, “We have not identified a platform that would accommodate the procedural safeguards, board member participation, and public participation required of quasi-judicial hearings.”
 
“We have also observed that Zoom and other platforms work well for verbal discussions at public meetings, or court hearings with a defined set of presenters (i.e. the members of a board or commission; or parties to a case/matter),” Mooney wrote. “The major difference between a court hearing/City Commission meeting and a quasi-judicial hearing is that, in a quasi-judicial hearing, the City is required to allow members of the public to appear, testify, present evidence, and cross-examine witnesses. This may include applicants, neighbors, resident/neighborhood associations, and other activist groups. Participation in a court hearing and, to a certain extent, City Commission meetings, is limited to the parties to a case or the parties involved in a particular matter. At this time, and for the reasons above, we do not believe that the public interest would be served by holding quasi-judicial hearings virtually.”
 
“However, we believe that the opportunity to obtain preliminary feedback from staff and board members, as well as scheduling additional board meetings later in the summer, will allow the City to process the backlog and move land development applications forward,” he stated.
 
Members of all of the land use boards have been asked for availabilities for additional meetings in June and July. The boards traditionally are on recess in August but, due to the backlog, meetings are being considered.
 
The May 5 Design Review Board will be the first conducted virtually. As noted, it will be for discussion and feedback purposes only. The agenda, which includes items carried forward from the cancelled April meeting is here. Information to access the meeting will be forthcoming.

The Historic Preservation Board is scheduled for May 12. The agenda, including items carried forward from April, is here. Information to access the meeting will be forthcoming.