Property Owner Sues Miami Beach to Overturn Ruling Denying Demolition of North Beach Pylon Structure

Susan Askew
Susan Askew

Property Owner Sues Miami Beach to Overturn Ruling Denying Demolition of North Beach Pylon Structure:

Illegal and unusable or iconic piece of history?

For 27 years, Beach Legal Properties has owned a nondescript structure on 71st Street with an abandoned sign pole on its roof that was previously used to advertise Financial Federal Savings, a former occupant. The cement pylon and Beach Legal’s right to demolish it has been at the center of a controversy for nearly two and a half years and has now landed in court after Miami Beach’s Design Review Board denied its request and the City Commission upheld that decision. Which side you come down on depends on how you view the pylon – illegal and unusable or an iconic piece of Miami Beach history.

According to Miami-Dade County property records, Donald Kahn, Joel Piotrkowski, and Marsha Green’s Beach Legal Properties paid $825,000 for the old bank building at 301 71st Street in December 1994.

The building was constructed in 1952 and the elevated sign was added 14 years later. Neither the building nor sign structure are historic, but the pylon has become a highly recognizable landmark in what is now the Town Center, an area envisioned to revitalize North Beach. 

When the owners filed for a demolition permit for the 55-ft tall sign post in October 2018, they were told they needed Design Review Board (DRB) approval. An application was filed with the Board in April 2019, but hearings were delayed while the owners and City explored alternative solutions following a community outcry.

After no viable alternatives emerged, Beach Legal went before the DRB which denied the demolition application because no alternative or replacement structure had been presented. The property’s owners have not proposed any changes to the building, just removal of the sign structure.

“The 81-ton, aging structure presents an ongoing maintenance challenge for Beach Legal,” Joni Armstrong Coffey of Akerman LLP wrote in the Court filing. “It cannot be used to display signage today, or indeed for any other purpose.”

Miami Beach City Code was amended after the sign was constructed to prohibit pole signs. Existing signs were given “non-conforming” status allowing them to remain, however, the Code states, “Existing nonconforming roof signs and pole signs shall be removed if ownership or use of the advertised building or business changes, except as otherwise provided herein,” Coffey noted. The exception criteria, including historic designation, do not apply, she said.

“The Pylon lost its legal nonconforming status – and therefore any legal right to remain in place – when the former Building occupant moved out and took down its advertising,” the filing states. “The Pylon today, an empty structure with no advertising displayed and no other allowable use, is illegal.”

At the DRB hearing, Coffey wrote, “City staff conceded before the DRB that the City ‘does not have any legal jurisdiction to deny the removal of the [Pylon]’… Staff nonetheless advanced the theory that the City could deny removal anyway, unless Beach Legal proposed some undefined ‘replacement’ for the Pylon… No Code provision requires, or even allows a replica for an illegal structure. But building on its theory, staff concluded that the invented ‘replacement’ did not meet design review criteria because it did not yet exist…”

“The DRB Order effectively says that if the illegal, unusable Pylon cannot legally be kept in place permanently, Beach Legal has to provide something like it – at no cost or burden to the City,” the filing states. “The DRB Order does not say what that ‘replacement’ would be, but under the Order’s mandate, Beach Legal must propose some unidentifiable structure that somehow avoids the Code’s prohibition on pole signs, yet also meets unknown criteria for future DRB approval.”

The filing references comments made by DRB member Scott Diffenderfer who acknowledged the inability to find alternatives for the pylon. "[T]here's nobody that's going pay to try to remove it and put it somewhere."

DRB Chair James Bodnar “acknowledged that the Pylon presents a substantial ‘hardship’ for Beach Legal, but then said that allowing demolition would cause the DRB to lose its ‘leverage’ to require Beach Legal to ‘replace’ the Pylon if the Property were ever later redeveloped,” the filing states.

The filing also quotes Board member Sara Giller Nelson. “What I’d really hate is for this to be torn down and, you know, as it’s been stated, the owners have no plans to develop it anytime soon, so you take down this element of a building that does have some neighborhood iconic significance and then you just have a plain building where before we had something really significant and that people really enjoyed.”

The DRB denied the demolition, setting up the Commission appeal.

Though City attorneys, once again, conceded that the DRB does not have the authority to deny demolition, the filing says they argued at the Commission hearing that the pylon had “transformed… into something that was ‘not a sign’ and therefore was no longer subject to mandatory removal” and that it had “evolved” from the original sign pole “into an integrated part of the Building, like a special tile, balcony, or gargoyle, and therefore the Pylon’s demolition could be conditioned on a replacement.”

“The argument is nonsensical, and worse, would render [the Code] meaningless,” the filing claims. “Under counsel’s argument, every time a pole sign structure in the City loses its advertising signage, it will no longer be a pole sign and therefore will not have to be ‘removed.’ The City’s Code section would be of no effect at all.”

“Further, the Code has no provisions for the spontaneous transformation of one type of structure into another type.”

“Absolutely nothing in the Code supports the argument that the Pylon could ‘evolve,’ exclusively due to the passage of time, from being one kind of structure – one that was permitted, constructed and maintained as a sign pole – into something that is not a sign pole, but instead is an integral part of the much-older, separately designed Building’s architecture,” according to the filing. 

The City Commission’s decision, the filing states, “is designed to preclude further development of the entire Property until plans are produced that memorialize the Pylon – not as a sign pole, but as an architectural feature of speculative future development. That development might or might not ever occur, but Beach Legal will be required to maintain the illegal Pylon until redevelopment happens.”

The “prohibition on a legal demolition on Beach Legal’s property, effectively to provide a benefit that ‘the people want,’ unfairly and unlawfully imposes exclusively upon Beach Legal a significant financial burden for a public benefit, a burden that in fairness should be borne by the public at large,” the property owners claim.

Quoting a 1960 court ruling, the suit says, “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burden which, in all fairness and justice, should be borne by the public as a whole.”

“The exaction’s burden on Beach Legal is exacerbated because the Pylon has outlived its utility, cannot bring income, and requires substantial expenditures for maintenance… Indeed, Beach Legal cannot even sell the Property free and clear of the illegal Pylon,” the suit states.

The filing notes that at the Commission hearing, “The Mayor revealed that he had previously held conversations with community leaders about moving the Pylon, but without success… Beach Legal reiterated that for some time it had offered to donate the Pylon, but with no success, leaving no open choice except the demolition application.”

“The City had many alternatives to the Resolution for preserving the Pylon,” the suit claims. “It could have deferred the hearing and purchased the Pylon or even just accepted its donation, as offered by Beach Legal… It could have changed the regulations requiring the elimination of all pole signs. It could even have commenced historic designation proceedings to address the Pylon. But it did none of those things. Instead, it placed the whole burden of the public benefit of preserving the Pylon onto Beach Legal.”

The Commission’s action to deny the demolition, “is the unlawful culmination of the City’s nearly two and one-half year campaign to preserve a bare, illegal, unusable sign pole structure, or if not, the pole, then its likeness. The Pylon could not be permitted today, nor could its replica. But City Commissioners ‘loved’ the structure and adopted a Resolution that holds the Pylon’s demolition hostage, as leverage to force the hypothetical, future development of the Property to include an architectural design feature that replicates a structure that cannot be preserved today because it is illegal. The Resolution forces Beach Legal, a private party, to preserve the illegal Pylon or its future likeness for the public – at no cost or burden to the City. It should be overturned,” the filing argues.

A second pylon structure minus the advertising sign stands at 743 Washington Avenue which was home to nightclub Rockwell for six years. The venue, closed for the pandemic, announced it was closing for good in February. The club had played up the pylon feature on its website.

The City did not respond to a request for comment on Beach Legal’s suit.


 
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