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IN MIAMI, DEVELOPERS DON'T NEED A MASK AND A GUN TO GET RICH, ALL THEY NEED ARE BUREAUCRATS WHO WILL WRITE AN ORDINANCE THAT MOST PEOPLE WON'T UNDERSTAND, AND LABEL IT HISTORIC PRESERVATION
PHOTO OF THE DAY - THE MAYOR TAKES THE CHIEF OF POLICE TO BOSTON TO BE ONE OF HIS BODYGUARDS
Miami is city where developers have managed over the years to gain what amounts to a stranglehold over politicians who, time after time, end up making decisions and approving development deals that often don't make sense or are not understandable until it's too late for the public to take meaningful actions to oppose these decisions.
Don't get me wrong, I'm not here to arbitrarily argue against planning and zoning changes. All you have to do is go to a country where there are no planning and zoning laws to realize how screwed up things can be without some guiding principles and rules on how and where to build.
At the same time, as a city matures and settles, changes in planning and zoning can have unintended consequences, and in a city like Miami where a majority of the housing stock is 40-50-60 years old, and where developers have managed to gain such an outsized influence in the decision making that the consequences of change can often result in not only creating bad public policy, but in creating the equivalent of new financial instruments that incentivizes up-zoning and density, that occurs without the opportunity of the general public nor the immediate neighbors affected by these changes to have any clue of what is really going on.
If you look at the political donations - donations amounting to millions of dollars - given to candidates for the position of Mayor and City Commission in Miami, Miami-Dade County, Miami Beach, Coral Gables, and other municipalities within Miami-Dade County it's evident that the money politicians have received from developers, land use lawyers, building contractors, sub-contractors and real estate brokers and agents was all intended to buy more than just access.
In Miami, political donations were and are meant to buy politicians who often are eager to be bought, and even worse, are willing to be bought cheaply.
While the average citizen remains clueless to the goings on inside of local government, a small but powerful collection of individuals and companies who service the real estate development industry keep their ear to the ground and their finger on the pulse of what various local Planning and Zoning Departments around the county are up to.
As a result, the proposals made by Planning and Zoning Departments to change zoning laws are often little more than a semi-secret pact made between bureaucrats and land use lawyers representing developers, that are designed to further the interests of developers and not the interests of the public.
I have to point out that although I am writing about a proposed series of changes to the city's Historic Preservation Ordinance, these proposed changes that were "indefinitely deferred," last month does not mean that the public should not know or understand what was being attempted, and it most certainly doesn't mean that this item won't reappear on a Commission agenda soon, because we are entering the months of June and July, when traditionally the slimmest, sleaziest and most questionable ordinances and resolutions find their way onto the agendas of Commission meetings. (Note: The links to all of the documents cited n this story will take you to a page that I have set up where they are all included.)
This is the time that between the heat, the threat of hurricanes, and the desire of the folks who tend to pay attention to the goings on at Miami City Hall to go away on vacation, that the worst of the worst deals tend to get approved.
THE SHOTGUN HOUSES OF THE WEST GROVE
I first became aware of proposed amendments to Chapter 23, the City of Miami's Historic Preservation Code when they were mentioned at the meetings held in March with residents of the West Grove over the intent of the city to "save" the "shotgun houses," built by some of the original Bahamian settlers of Miami and that the city now wanted to protect under a newly defined definition of historic preservation that they were calling "Multiple Property Designation."
I left those meetings not only convinced that the city was not dealing from the top of the deck in their supposed effort to "save" these "shotgun houses," especially when it came to the use of the newly created "Multiple Property Designation."- you can see my story about that HERE - but also wondering what else the city might be up to in their newfound efforts at so-called historic preservation.
Like a cat however, I'm easily sidetracked by the lure of shiny story leads that glitter with the promise of skullduggery, and so I moved on from the issue of historic preservation to juicer stories, and only got interested again when I started hearing that the word around City Hall was that law firms close to developers were beginning to show an interest in, and a desire to see this amended ordinance get approved.
Why, I wondered, would big law firms be interested in an amended ordinance whose sole purpose - or at least that's the way it had presented at the West Grove meetings - was being touted as a change to enlarge upon the definition of historic properties to include the "shotgun houses" in the West Grove, and where had the term "Multiple Property Designation," come from?
It turns out that the original effort to create a "historic district" within the West Grove first came before the City Commission on July 27, 2017, in Resolution R-17-0390, which stated in part:
Section 2. “The City Commission hereby approves, encourages,
and supports the designation, as a historic district, of the area
known as the “West Grove” in recognition of the historical and
cultural importance of the area.”
Section 3. “The City Administration is directed to proceed consistent
with the procedures established in Chapter 23 of the City Code.”
In the WHEREAS portion of the Resolution, the 6th WHEREAS stated:
“WHEREAS, pursuant to Chapter 23, the Preservation Officer shall
conduct outreach involving all relevant home owner associations and
neighborhood associations and HEPB shall conduct a preliminary
evaluation of the data provided in the Proposal for Conformance
with the criteria set forth in Subsection 23-4(a) of the City Code…”
That all happened on June 27th, but by September 9, 2017, the notion of creating a "historic district" had changed drastically when the city showed up at the Historic and Environmental Preservation Board meeting (HEPB), and got them to agree to the creation of the term "Multiple Property Designation," because:
“Multiple property designation is a streamlined alternative to historic
district designation as only eligible thematically-related resources are
And so, within a period of just several months the instructions given by the City Commission to look into the creation of a "historic district," had been changed by the city's Preservation Officer and the HEPB Board from a mandate to create a "historic district," which by definition would include what are defined as contributing and non-contributing buildings, as well as a desire to preserve the historic nature of the area, to instead streamlining a process in the West Grove to focusing only on multiple single buildings - "wooden shotgun houses" - rather than try to foster the preservation of the district as outlined in R-17-0390.
The result of this kind of process are individual, potentially historic "shotgun houses," and not a real historic district that would have truly benefited from the preservation of the “thematic” nature of the historic Black Grove.
As devious as that Switcheroo was, it turned out that the changes to the Historic Preservation Code that I and others had originally assumed dealt only with the West Grove turned out to be only one part of a far more comprehensive package of changes that focused on monetizing unused density not only in the West Grove but more importantly in the MIMO/Biscayne Boulevard District, that also required companion changes to the Miami Comprehensive Neighborhood Plan and and other documents including the Public Benefits Trust Plan and NCD-2.
Here was how it was explained to the City Commission at their March 22nd meeting by Francisco Garcia, the City's Planning Director. (The complete minutes of the meeting can be read HERE. )
There's never been similar language describing a desire to return the character of the West Grove to what it was in any of the versions of the ordinance..
Had the city, and the preservationists really cared about the historic nature of the West Grove like they claim they cared about the historic nature of the MIMO/Biscayne Boulevard District, they wouldn't have settled for "multiple property designation," and, they could have any time inserted language to the effect of:
"Classic types prevalent during the historic period of Bahamian
settlement of the area."
Language like this has never been applied to the West Grove in a manner that would be enforceable!
To further complicate this whole issue, the City Commission is also considering changes to the neighborhood Conservation District that covers the West Grove. (NCD-2)
One of those changes would allow the addition of 450 sq ft accessory dwelling units (ADU's), otherwise known as "Granny Units," in the backyard of many of the homes in the West Grove.
This change has been proposed both as a revenue stream for the home owners, and as a way to provide affordable housing. The question that this proposed change raises is, how does that fit the, "historic preservation goals and objectives of the proposed "Multiple Property designation," as defined in Section 23-5 (c)(1), Certificate of Appropriateness, that deals with "Alteration of existing structures, new construction?"
Would this prohibit these "shotgun houses" from having an ADU in their backyard?
By doing what they did, the Planning and Zoning Department actually rewrote the ordinance in a way that not only continues to support the gentrification of the West Grove - and make no mistake about that, because the so-called preservation of 50 or so little wooden "shotgun houses:" will not make a dent in the overall change in the changing character of the West Grove - but in doing so, they also opened the door for developers of projects in the MIMO/Biscayne District to obtain a windfall benefit by allowing not only the owners of historic properties, but also the owners and developers of "contributing," and "non contributing" properties to get in on the action.
To accomplish this, the Planning and Zoning Department created a new incentive that they labeled Transfer Development Density (TDD) that would also be applicable to "non-contributing" structures within the MIMO/Biscayne Boulevard District.
According to Planning and Zoning, this was done so that, "The incentive for non-contributing buildings is intended to promote reinvestment within the overall area encompassed by the historic district leading to its betterment."
Secondly, in Sec. 23-6 (8) of the revised ordinance, you'll see that in (b)(1) there is new language that allows TDR and TDD benefits for, what is described as, "the construction of the building."
To understand how this comes to pass you have to bounce around through several pages to discover that this language doesn't limit "construction" to an rehabbing an existing building, but in fact appears to allow for entirely new buildings being constructed and qualifying for these incentives, including "non-contributing" existing or new construction, as long as it's approved by the HEPB.
The fact that a developer could apply the, "expenses directly related to the construction of the building," including "materials, supplies and equipment," as well as recoup an additional 20% in "fees associated with design, financing, legal and other pre-and post- construction expenses (soft costs,) as a basis to maximize the value of the TDR and TDD, is pretty much like rewriting the 1985 Dire Straits song to make it into the theme song for Miami developers,
"Money for nothing, and the building for free."
When you also consider - excluding all other hocus pocus that could be engaged in by a developer - that an unscrupulous developer could pad costs and expenses - I know, you're shocked to even hear that a developer could or would do that in Miami, it's no wonder that developers and their law firms would be pestering City Commissioners to support these changes.
TRANSFER DEVELOPMENT RIGHTS
The creation of Transfer Development Rights (TDR) - also known as Air Rights - for the MIMO/Biscayne Boulevard District occurred in 2008 and was considered by many to be an effort by the city to try and inoculate itself from what were called Burt Harris lawsuits.
These lawsuits were the outcome of an action by the Florida Legislature that created the Burt Harris, Jr. Private Property Rights Protection Act of 1995.
As described in a paper written by Ronald Weaver, of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., the act was created as, "a new cause of action for an aggrieved property owner who demonstrates that governmental action "inordinately burdens his property." (You can read Weaver's paper HERE)
The reason why the city felt it needed to inoculate itself these kinds of lawsuits was because in 2008 it had created as part of it's Historic Designation Ordinance a provision limiting the height of new buildings in the MIMO/Biscayne Boulevard District to 35 feet, thereby reducing the value of those properties.
This was a deal supported and pushed through by then newly elected Commissioner Marc Sarnoff, who openly admitted that his involvement is getting the changes passed was a payback to Elvis Cruz - then a city fireman, Morningside activist, and darling of the preservation crowd - who had, as Sarnoff publicly claimed, been instrumental in helping him get elected.
The imposition of these height restrictions was considered by some property owners in the area as an example of an action that "inordinately burdened" their property, and they filed lawsuits.
Although a number of lawsuits were filed, they were all eventually dismissed, because it seems from an account I got from one of those property owners, none of them were informed prior to filing their lawsuits that in order to successfully support a claim of harm, the property owner had to show that prior to the time of the decision made by the government, they had already initiated an effort to upgrade or build on their property.
The creation of TDR's was eventually seen as an act that proved to be beneficial to developers of historic buildings all over the country and in the MIMO/Biscayne Boulevard District, no one seems to have benefited more than developer Arva Jain, who sold off $3,232,800.00 of TDR's just on the Vagabond Motel.
Like the changes to Section 23 of the Historic Preservation Ordinance, this proposal was also "Indefinitely Deferred," at the last Commission Meeting.
The decision to defer these items however, does not eliminate the fact that the underlying rationale for this proposed ordinance was that developers, having pretty much exhausted all open and available land for development, have now turned to the city's Planning and Zoning Department for help to allow them to more effectively take advantage of what is known as "infill development.
The accompanying diagram that accompanied this proposed ordinance shows how everyone settled on areas that border the Metrorail, the downtown shore line and an area around the airport as one of the areas everyone considered best suited for increasing zoning density.
The areas within the circles, identified as Transit Sheds, would allow a 50% increase in density that would come from the purchase of these TDD's, which is how government creates demand for an incentive that they also create.
This is like saying that the market for chickens is drying up, so to let the chicken growers make more money in their time of need, the regulatory agency that controls how many chickens go to market decides to incentivize the raising of more chickens, but instead of calling these new chickens, chickens, they're going to be called Feathered Birds.
It might be considered a cynical view of municipal governance to question how one shows up to propose a new benefit for developers who seem to be having a problem cashing in on the current benefit you gave them, but the City of Miami has over the years acquired a well-earned reputation of dropping to their knees and assuming the position whenever developers and their lawyers decide that they need a 'little help from their friends' at City Hall.
The only Commissioner who raised a substantive question at the March 22nd meeting was Manolo Reyes, who had originally been opposed to the provision of the ordinance having to do with the "shot gun houses," because he rightly understood that this change could result in all the wooden houses within the city limits being considered under this new "Multiple Property Designation." They were. (See pages 63, 64 of the Commission minutes).
Having come to the conclusion that District 2 Commissioner, Ken "Selfie Boy" Russell was out to screw them, some of the owners of the "shotgun houses," turned for help to Reyes, who responded by introducing a revision to the Historic Preservation Ordinance at the May 24th Commission meeting that would allow property owners of these "shotgun houses" who did NOT want to have their property included on the list of "multiple property designation," to do so without the overbearing and costly process that is currently in place for people who want to challenge a decision made by the HEPB.
Russell took umbrage that a fellow Commissioner would dare to involve himself in an issue regarding the residents of his District.
The rationale for why Reyes did what he did seemed NOT to make sense to Christine Rupp of The Dade Heritage Trust, who sent out a supportive email in Russell's behalf, chastising Reyes efforts by calling the whole process "weird," and urging her membership to show up at the June 28th Commission meeting to protest this usurpation on Russell's prerogatives to try and screw his constituents as a result of this bastardized change to the Historic Preservation Code..
There's nothing that upsets the preservation crowd more than uppity people who choose to oppose their view of the world.
At the same time the complexity of the changes in the ordinance, including the fact that there are contradictions and language that do not logically, or legally make sense did not seem to offend Ms. Rupp in the same manner, because at the March 22nd meeting she waxed eloquently over the effort by Planning and Zoning to include her group and other preservationists in the process.
Having benefited from her sale of TDR's, Arva Jain showed up for the March 22nd Commission meeting not just to encourage support for the inclusion of this new Transfer of Development Density(TDD) language, but also because she wanted the benefits to be made retroactive to 2010, so she too could cash in on this new incentive.
If there's one thing better than one opportunity to cash in for a developer, it's an opportunity to cash in twice on the same piece of property.
To get a full understanding of the total amount of TDR's that have been sold, and from what properties, see the complete list provided to me by the City HERE.
The only problem is that while the money Arva Jain and other developers made from selling the air rights to their buildings in the MIMO/Biscayne Boulevard District was based on a recognized right, the money she hoped to cash in on if this new Transfer of Development Density language was approved, was not based on a recognized right, but rather it was based on what some have described as a legal fiction.
TRANSFER OF DEVELOPMENT DENSITY AND HOW WORDS MAKE A DIFFERENCE
The first thing to understand about TDD's is that unlike TDR's, a TDD is not a "property right." If it were a "right" it would have been called a Transfer Of Development Density Rights, in the ordinance like development rights are called Transfer of Development Rights.
Here are two definitions of what a TDD is supposed to be. The first is the definition provided in the revisions to the ordinance:
Transfer of development density (TDD) for historic resources.
The sale of the unused development density to another party
upon a binding written commitment that results in the restoration,
rehabilitation and/or preservation of the historic resource for the
public benefit. A TDD shall comply with all applicable Land
Development Regulations as that term is defined by Florida
Statute 163.3164, as amended, “Community Planning Act;
This second was provided by a person familiar with land use issues.
A TDD is a fiction created within the language of the Historic
Preservation Ordinance to allow the creation of additional
density without having to go through the legal process of
The premise of TDD is based on the arbitrary decision by the Planning and Zoning Department, as stated in Sec.23-6(1)8, that a TDD will allow the property owner to claim 225% of available density for "contributing buildings," and 175% of available density for "non-contributing" buildings, that they can then sell like they've been selling TDR's.
To understand this better, consider that when a developer sells the TDR of a building they are selling the unbuilt volume of the property, calculated on the height that the property owner could have taken advantage of, had it not been for the restrictions imposed by the Historic Preservation ordinance.
What Transfer of Development Density proposes is that the property owner should be allowed to calculate the volume of the unused "air rights" in two ways, first as volume for a TDR, and secondly as density for a TDD, and then, if the market has fallen out of the sale of TDR's - as Planning Director Francisco Garcia alluded to in his presentation at the March 22nd Commission meeting - then maybe, thanks to the efforts of his department, they'll have better luck in selling these newly created TDD's.
I would call what the City of Miami's Planning and Zoning Department is trying to do with this new incentive is little more than an act of pernicious hocus pocus by the use of sophisticated legal language to further the financial opportunities for developers to benefit from the kind of government intervention that results in financial benefits for the few, and unintended consequences for the many.
Furthermore, the incentive, which is restricted and limited to a relative small handfull of beneficiaries, is also controlled by the City's Zoning Administrator, with little or no independent oversight.
Here's is how they've proposed doing this.
In Sec.23-6(2)(b)(1) the new language allows a "contributing property" to benefit from a 225% valuation bonus for every square foot permitted under the underlying transact, and 175% for "non-contributing" properties.
In Sec.23-6(1)8, the language spells out how this will be managed.
When it comes to spotting how Planning and Zoning officials give a special helping hand to real estate developers, bureaucrats sometime tip their hand by declaring that their interest is in making sure that there's a "more level playing field," as a result of their handiwork.
In his explanation, Garcia failed to mention, much less explain how he and his staff came to determine that there was a pressing need to create a new Transfer of Development Density (TDD), when the language of in the Resolution introducing these changes claimed that the, "value of the development rights for historic resources has dropped considerably recently..."
Among the problems that the preservationists like Ruff failed to consider when supporting the efforts to force the owners of the West Grove "shotgun houses," into this deal, was that these proposed changes were not only intrusive and even dictatorial, but offered little in the way of possibilities for the recoupment of real money to cover the costs associated with rehabbing their properties by availing thenselves of the incentives offered through TDD because of the relatively small size of their houses and lots.
To qualify for this transfer of density, the owners of these houses would FIRST have to cover ALL of the soft costs associated with the issuance of a building permit for the preservation of the property, along with signing a covenant to maintain the property as a historic designated property - an act that would bind all future owners - and all of this would have to occur without any assurances that in return anyone would purchase the density transfer rights.
A closer look at the changes proposed also revealed that the really significant changes in this ordinance weren't about providing benefits to the owners of the "shotgun houses" in the West Grove, so much as to providing benefits for property owners and developers in the MIMO/Biscayne Boulevard District, and again, when it comes to the preservation crowd in Miami, the mere mention of MIMO makes them get all moist and giddy.
But in my opinion, it's all phony, because to fully appreciate how the supposed concern by these preservationists for preserving the historic nature of the West Grove was not in the same ball park when it came to the concern that they had always expressed for preserving the MIMO/Biscayne Boulevard District, you can see it clearly in the language of the ordinance on (Page 6,(2) Paragraph 4), that describes the city's interest in preserving the, "character of Biscayne Boulevard:"
Previously I referenced part of this section of the revised ordinance in discussing the issue of "new construction."
I return to this section again to raise several more interesting questions. As you see below I highlighted language that explains that the, "applicant will determine the maximum value of the proposed sale..."
A question that comes to mind after reading this is, does "value" translate into the "price" that the market will pay for TDD's as set out in the Building Permit Application?
What if these TDD's become a hot commodity? Would the price go above the "value" set out in the Building Permit Application?
In other words, will the sale of these "new" incentives be subject to the free market, or constrained by the Zoning Director in his role as the person who "calculate(s) the unused density potential that may be transferred to a receiving property...?"
TRANSIT ORIENTED DEVELOPMENT
For there to be a seller, there also needs to be a buyer, which is the other half of this deal.
Here is the header of another ordinance that was created and proposed by the city's Planning and Zoning Department that accompanied the above changes to the Historic Preservation Ordinance.
NUMBER 46 - JUNE 10, 2018
One of the things that has distinguished the change at City Hall from Tomas Regalado to Francis Suarez has been the trappings of power that Suarez has been quick to take advantage of.
Regalado used to travel with a single Sgt-At-Arms as his chauffeur/bodyguard.
Immediately after he became Mayor, Suarez added a second bodyguard, a prerogative that I'm told that Manny Diaz also employed.
Last week, Suarez went to Boston for the annual Conference Of Mayors, and it appears from both video and the photo above, that in addition to his primary chauffeur/bodyguard he also took along the Chief of Police as his 2nd bodyguard.
I guess there weren't any pressing matters more important for Police Chief Brylcreem to handle here in Miami, so a free trip to Boston to play bodyguard for the Mayor probably seemed like a good way to get out of town for a few days.
His trip to Boston sure wasn't because the Chief had much to contribute on issues of crime and punishment to any conference, given that the highlight of his career as Chief so far was the embarrassing fiasco that occurred when he had to announce that the two suspects arrested for the murder of two teens at the Pork & Beans Housing Project had, hours after the press conference announcing their arrest, turned out to have alibis and were released.
The photo above is also interesting because walking along with the boy Mayor, was none other than former Mayor, Manny Diaz.
It's one thing to use the honorific title of "Mayor," after you've left office, but it's another thing to see Manny Diaz walking down the street with a sash identifying him as "Mayor."
How many ex-mayors do that, and how many mayors does Miami really need in a parade?
It's kinda like seeing Al Bundy show up at this year's Polk High School graduation, so he can talk about the time he scored that winning touchdown. (Can I get a shout out for the Married With Children reference.)
In any event you got an ex-mayor, the current mayor, the chief of police and a real chauffeur/bodyguard from Miami walking down a Boston Street along with Miami Garden's Mayor Oliver Gilbert, and the question that I'm sure inquiring minds really want an answer to is, what's up with those shoes Oliver?
Can we get a close up of those shoes?
Some of the circles in this rendering abut residential neighborhoods of single family housing. The possibility of infill development that would result in as much as a 50% increase in density of new buildings in these areas is not something that is agreeable to a growing number of residents who would be affected by this increased density.
This is already becoming a problem in other areas of the city, and it is bound to increase as more and more residents become aware of how all of this will impact on their neighborhoods and their quality of life.
It's a complicated and contentious issue made all the more troubling by the growing threat of sea level rise and the impact that a major hurricane will bring to the city if it suffers a direct hit.
When I asked about an increase in density created by the process associated with the creation of TDD's, Jermey Calleros Gauger, the Assistant Director of Planning denied that it represented an increase in density, even though the plain language of this proposal to create a TOD/Residential Density Transfer Zone states that the purpose of this ordinance is to allow, "a residential density increase."
The folks in the city's Planning and Zoning Department don't seem to have much respect for the reading prowess or the increasing lack of tolerance for bullshit of the Miami's residents, so the fact that they would deny that these actions would create increased density, while at the same time declaring that it would in a proposed ordinance, is just the kind of bureaucratic double talk that is finally beginning to really piss people off, which one can hope was why these ordinances were "indefinitely deferred."
The big question now is will they be thrown in a garbage can, or will they, like so many other bad deals, resurface when the politicians think that people aren't paying close attention?
It's a Miami, Bitches conundrum!
NUMBER 47 - JUNE 11, 2018
VIDEO OF MONDAY NIGHT'S MEETING BETWEEN WEST GROVE OWNERS OF SHOTGUN HOUSES AND CITY'S PLANNING & HISTORIC PRESERVATION STAFF