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NUMBER 31 - MARCH 6, 2019

MIAMI CITY ATTORNEY'S OFFICE IS CAUGHT PULLING A FAST ONE BY CHANGING THE LANGUAGE IN A HISTORIC PRESERVATION DOCUMENT

From: Frank Schnidman <schnidmanf@earthlink.net>

To: Victoria Mendez <vmendez@miamigov.com>

Cc: Suarez-Rivas, Rafael <RSuarez-Rivas@miamigov.com>; Adams, Warren <WAdams@miamigov.com>; Reyes, Manolo (Commissioner) <MReyes@miamigov.com>

Sent: Tue, Mar 5, 2019 3:45 am

Subject: Recommend Deferral of HEPB # 8 of March 5, 2019--Programatic Agreement Extension --Amending Away City Commission Concerns

Dear Madam City Attorney;

In preparation for Agenda Item 2, I took the time to review the other items on the Agenda, and noticed #8, the 5-year extension of the Programmatic Agreement among the City of Miami, the Florida State Historic Preservation Office, and the Federal Advisory Council on Historic Preservation. As one reads the Staff Report, it portrays a simple 5 year extension of the Agreement, and does not mention any other amendments.

However, in reviewing just one section of interest, the Document Standards, a significant change has been made with no notice.

I would therefore recommend that this item be deferred until a track-changes version can be completed so that those at the City, the State and the Federal Government can understand what exact changes have been made to the base document.

What is the change?

The previous Programmatic Agreement, Section II.C Documentation Standards read in the expired 2012 agreement at page 1723:

"The City shall ensure that any determination by Certified Staff as to whether a property is historic, for purposes of this agreement, is supported by sufficient documentation to enable any reviewing parties to understand its basis, including, but not limited to, a survey, site plan, photos, elevations, evidence of construction date, context."

The proposed new language that appears in the Agenda packet on page 1698 states:

1.     The City shall ensure that any determination by Certified Staff as to whether a property is historic, for purposes of this agreement, is supported by sufficient documentation and data to enable any reviewing parties to understand its basis under the applicable regulations.

You will notice the addition of the word “data,” and “…under applicable regulations.” (And, what exact regulations are applicable?) You will also notice the deletion of the words, “…including, but not limited to, a survey, site plan, photos, elevations, evidence of construction date, context.”

Why is it important?

As I remember it, at the October 11, 2018 Commission Appeal session relating to the Multiple Property Designations, the Commission was concerned by the lack of standards the HEPB used to designate property. Arguments were made that since the paperwork prepared for the designations by Historic Preservation staff stated that the City followed the Standards of the Secretary of the Interior for designations, and the Standards relating to designation were outlined in the “Standards & Guidelines for Architectural and Engineering Documentation” of the Secretary of Interior, and further detailed in Federal Register Vol. 68, No.139, Monday, July 21, 2003 at page 43159-43162.

Staff countered that even though the Federal Register stated that “These guidelines contain useful information on how to produce documentation for other archives, such as state or local archives,” that these Department of the interior Standards only applied to The Historic American Building Survey and the Historic American Engineering Record (HABS/HAER/HALS). Argument was then raised by the property owners that the Programmatic Agreement Documentation Standards should apply, and the Historic Preservation staff countered that those requirements only apply to Federal designation issues. When then asked  by the Commission what standards would apply to local designation, the response was Chapter 23, which actually has no such standards.  I recall the comment by one Commissioner that he was troubled by giving Federally designated properties greater care than properties being considered for local designation.  Ultimately, partly because of the specific language in the Programmatic Agreement, there was a determination that the process of designation was flawed, and a compromise was reached to prevent every single property designated (appealed or not appealed) from being disqualified.

So, now we see without any notification, such an important list of what is needed to designate property as historic removed from an agreement without notice—and it raises the question WHY? And Why not disclose such a change?  It also raises the question of what other changes may have been made to the base agreement without notice.  All of this may be innocent and done for one reason or another. But to not disclose such a change does not inform decision-makers of important changes.

I therefore suggest that you ask that this item be deferred until a track changes version can be prepared and any changes documented and explained.

By copy of this e-mail to Warren Adams, I ask that this e-mail be entered into the record for HEPB 8, the approval of the extension of the Programmatic Agreement.

My best regards,

Frank

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In addition to their well documented efforts to thwart compliance with public record requests that might provide incriminating or embarrassing documents to folks like me and others, the office of the City of Miami Attorney has also been engaged in a number of other questionable, if not illegal activities in the last few years.

One of those issues has been the insertion of language in Resolutions after they were passed by the City Commission. I've been remiss in writing about this problem, but I would hope to get to that story soon.

Another issue, highlighted by the letter below, reveals how the City Attorney's office engaged in withholding public notice of proposed changes to a document being submitted to the federal government.

You cannot trust Victoria Mendez. In fact, I would venture to say that you probably can't trust a number of the attorneys who work as Assistant City Attorneys, because they take their lead from the City Attorney, and her track record of lying and miinterpretation of the law is well documented, both during City Commission meetings, and on other occasions, as I wrote about in my story about the first settlement the city entered into over one of my public record lawsuits.

Here is the letter written by attorney and former Distinguished Professor of Urban and Regional Planning and Eminent Scholar Chair, Florida Atlantic University Frank Schnidman.