Estate of Tippett v. City of Miami, 94-126

• Decision Date: 09 November 1994
• Docket Number: No. 94-126,94-126
• Citation: 645 So.2d 533
• Parties: 19 Fla. L. Weekly D2339 ESTATE OF Mary Elizabeth Whitney TIPPETT, and Cloyce Tippett, Petitioners, v. CITY OF MIAMI, Florida, a Florida municipality, Respondent.
• Court: Florida District Court of Appeals

Page 533

645 So.2d 533

19 Fla. L. Weekly D2339

ESTATE OF Mary Elizabeth Whitney TIPPETT, and Cloyce

Tippett, Petitioners, v. CITY OF MIAMI, Florida, a Florida municipality, Respondent.

No. 94-126.

District Court of Appeal of Florida,

Third District.

Nov. 9, 1994.

Rehearing Denied Dec. 14, 1994.

Baker & McKenzie and Anthony J. O'Donnell, Jr., John William Watson, III, Miami, for petitioners.

A. Quinn Jones, III, and Kathryn S. Pecko, Miami, for respondents.

Robert A. Ginsburg, County Atty., and Thomas W. Logue, Asst. County Atty., Holland & Knight and Samuel E. Poole, III, and Christopher N. Bellows, Miami, David A. Doheny and Elizabeth S. Merritt, Washington, DC, and Alexandra Acosta, Miami, for Nat. Trust for Historic Preservation in U.S. and the Florida Trust for Historic Preservation and Dade Heritage Trust, as amici curiae.

Before BASKIN, JORGENSON and GERSTEN, JJ.

PER CURIAM.

We deny landowners' petition for a writ of certiorari to quash the opinion of the Circuit Court, Appellate Division, affirming the City of Miami City Commission's Resolution denying the landowners' appeal from the creation of a Bayside Historic District ["District"]; the District encompasses petitioners' property. The Appellate Division correctly concluded that the petitioners' claim was premature.

Petitioners own the Prescott House located on NE 71st Street in northeast Miami. In 1991, the City of Miami Historic and Environmental Preservation Board ¹ voted to designate an area of northeast Miami encompassing the House as the Bayside Historic District. Petitioners appealed the designation to the City Commission. The Commission denied the appeal and affirmed the designation. ² Petitioners then appealed the Resolution to the Circuit Court, Appellate Division, arguing that the designation of the property as historical amounted to an unlawful taking. The court affirmed the Commission's Resolution.

Petitioners present a facial challenge to the declaration of the District and to the ordinance under which it was created. However, petitioners have not sought to obtain any permits under the ordinance and the government entity charged with implementing the ordinance has not reached a final decision regarding the ordinance's application. Hence, landowners' attack on the District, as an unconstitutional taking, is not ripe for consideration. See Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1st DCA), review denied, 570 So.2d 1304 (Fla.1990).

Certiorari denied.

BASKIN and JORGENSON, JJ., concur.

GERSTEN, Judge, concurring.

I concur. While I agree with the majority that petitioners' takings claim is not ripe, I write separately because the field of historic preservation is a developing area of the law with significant ramifications for the public welfare.

The petitioners in this case have challenged the designation of the Bayside Historic District by the City of Miami's Historic and Environmental Preservation Board. In designating the district, the Preservation Board acted pursuant to its authority under Miami's Historic Preservation Ordinance, which was amended in 1991. Secs. 23.1-1 to 23.1-6, Miami Code. The Historic Preservation Ordinance defines a historic district as "[a] geographically defined area possessing a significant concentration, linkage, or continuity of sites or structures united historically or aesthetically by plan or physical development." Sec. 23.1-2, Miami Code.

Miami's amended ordinance now conforms to the minimum standards for preservation established by Dade County in chapter 16A of the Dade County Code, and follows a two-stage regulatory process. The first stage involves the evaluation, nomination, and designation of historic sites and districts by the Preservation Board, in accordance with specific criteria and procedures, including notice and public hearings. Sec. 23.1-4, Miami Code. The members of the Board must possess special expertise, knowledge and interest in the fields of architecture and historic preservation. Sec. 62-71(1), Miami Code.

The second stage of the regulatory process is triggered only if an owner wishes to alter or demolish a designated property or to undertake new construction within a historic district. In that case, the owner applies to the Preservation Board for a permit which must be issued in accordance with specific criteria in the ordinance. Sec. 23.1-5(C), Miami Code. Any permit denial is subject to an appeal to the City Commission, and then to the Circuit Court. Sec. 23.1-5(B)(4)(e), Miami Code. In any event, when an owner applies for a permit to demolish, the Board cannot deny the issuance of a demolition permit, but can delay issuance for up to six months. Sec. 23.1-5(C)(2), Miami Code.

As a further safeguard, the ordinance establishes a procedure to grant exemptions based on economic hardship. Upon application and proof, a property owner is entitled to an exemption from any aspect of the permitting process that causes "unreasonable or undue economic hardship." Sec. 23.1-5(B)(4)(b), Miami Code. The decision to deny such an exemption is also subject to an appeal to the City Commission and then the Circuit Court. Sec. 23.1-5(B)(4)(e), Miami Code.

The Bayside Historical District was platted and built from 1909 to 1941. Most of the homes date from that era and represent many of the main architectural themes in Miami. Early buildings in the district are constructed in the frame vernacular style; homes from the 1920's are built in Mediterranean revival; houses from the 1930's and 1940's are built in Art Deco, the Americanized term for Artes Decoratif. In addition, a significant number of homes were built in the Mission and Streamline Moderne styles. Buildings in the district utilize various indigenous materials, such as keystone and oolitic limestone. Many wrought iron screen doors and precast concrete vents exhibit South Florida motifs such as flamingos, palm trees, wave designs, sunbursts, and egrets.

Petitioners pose an array of constitutional challenges, none of which have merit, in my opinion. First, the designation of a historic district without the owner's consent does not constitute a taking. The landmark opinion, Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), is dispositive on this issue. Penn Central upheld the constitutionality of New York City's historic preservation ordinance, even though the law prevented the property owner from constructing a 55-story office building over the historic Grand Central terminal. Id. at 131-39, 98 S.Ct. at 2662-67. The Court held that the denial of the request to develop the air rights above the terminal did not constitute a taking, that the ordinance did not interfere with the owner's investment-backed expectations, and that a takings claim may be stated only when the owner demonstrates that property has been left with no reasonable use. Id. at 123-39, 98 S.Ct. at 2659-67.

The Court opined that historic preservation legislative efforts were driven by two concerns:

The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. Historic conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing--or perhaps developing for the first time--the quality of life for people.

Id. 438 U.S. at 108, 98 S.Ct. at 2651 (citations and quotations omitted).

At the time the Court issued Penn Central, all 50 states and more than 500 municipalities had enacted preservation laws. Id. at 107, 98 S.Ct. at 2650-51. In 1992, local historic preservation ordinances numbered more than 1700. Christopher J. Duerksen, Historic Preservation Law, in 1 Ziegler, Rathkopf's The Law of Zoning and Planning Sec. 15.01, at 15-4 (4th ed. 1994). Further, "in fifteen years since Penn Central, no other state has rejected the notion that no taking occurs when a state designates a building as historic." United Artists' Theater Circuit, Inc. v. City of Philadelphia, 535 Pa. 370, 635 A.2d 612, 619 (1993). See Bohannan v. City of San Diego, 30 Cal.App.3d 416, 106 Cal.Rptr. 333 (1973); Figarsky v. Historic Dist. Comm'n, 171 Conn. 198, 368 A.2d 163 (1976); Rebman v. City of Springfield, 111 Ill.App.2d 430, 250 N.E.2d 282 (1969); Department of Natural Resources v. Indiana Coal Council, Inc., 542 N.E.2d 1000 (Ind.1989), cert. denied, 493 U.S. 1078, 110 S.Ct. 1130, 107 L.Ed.2d 1036 (1990); Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948 (1990); Mayor and Aldermen of the City of Annapolis v. Anne Arundel County, 271 Md. 265, 316 A.2d 807 (1974); Sleeper v. Old King's Highway Regional Historic Dist. Comm'n, 11 Mass.App.Ct. 571, 417 N.E.2d 987 (1981); Thompson v. City of Red Wing, 455 N.W.2d 512 (Minn.Ct.App.1990); Lafayette Park Baptist Church v. Board of Adjustment, 599 S.W.2d 61 (Mo.Ct.App.1980); Shubert Org., Inc. v. Landmarks Preservation Comm'n, 166 A.D.2d 115, 570 N.Y.S.2d 504, appeal dismissed, 78 N.Y.2d 1006, 575 N.Y.S.2d 456, 580 N.E.2d 1059, review denied, 79 N.Y.2d 751, 579 N.Y.S.2d 651, 587 N.E.2d 289 (1991), and cert. denied, --- U.S ----, 112 S.Ct. 2289, 119 L.Ed.2d 213 (1992); Buttnick v. City of Seattle, 105 Wash.2d 857, 719 P.2d 93 (1986) (en banc).

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