To the Editor:
Why don’t our city codes do what citizens keep telling our commissioners they want, especially when it comes to protecting our diminishing tree canopy and preserving our few remaining historic buildings?
There are two main reasons. But first, you have to understand why our city seems to operate like a ship without a rudder. As any first-year law student will tell you, that rudder is stated right up front in the intent section of any code.
Here is what our three main property codes say about their intent:
Chapter 17, Environmental Preservation: “The intent of this article is to protect, preserve and restore the tree canopy within the City of Miami by regulating the removal, relocation, pruning, planting and trimming of trees.”
Chapter 23, Historic Preservation: “The intent of this chapter is to preserve and protect the heritage of the city through the identification, evaluation, rehabilitation, adaptive use, restoration, and public awareness of Miami’s historic, architectural, and archaeological resources.”
Section 2.12 of the Miami 21 zoning code: “The conservation goals include: Preserving Neighborhoods, Historical Resources and the natural environment.”
In the same intent section, Miami 21 also says, “The Miami 21 Code is intended to advance the interests of both conservation and development.”
Of these three codes, by far the dominant one is the Miami 21 zoning code because it determines, from the beginning of a permit application, what can be built and where. It is supposed to balance a developer or owner’s property rights with the rights of the broader community to have its trees and historic buildings preserved, protected and even enhanced.
That balance was undermined in 2019 — before the COVID-19 pandemic and the resulting development boom — by a single judicial decision: Cube 3585 v. City of Miami. In that case, the 11th Judicial Circuit ruled that the stated intent in Appendix A of Miami 21’s NCD-3 regulations — to “preserve the historic, heavily landscaped character of Coconut Grove’s residential areas” and “protect the architectural variety within the unique single-family neighborhood that comprises Coconut Grove” — was “not a discernible professional standard.”
Although that ruling was tailored to the facts involving one specific property in South Grove, it has unquestionably put a thumb on the scale in favor of developers throughout Miami. The city does not like being sued by well-heeled developers who say their property rights are being violated. Meanwhile, any ordinary citizen who invokes the intent sections to save a tree or historic building must overcome the Cube 3585 presumption that intent is “not a discernible professional standard.”
We have become a ship without a rudder. To correct that, the City Commission and mayor must work with the city’s legal department to amend Miami 21 so that no court can rule that its intent is too vague or ambiguous to properly balance property rights with community rights.
Andy Parrish
Coconut Grove
