Appeal over Miami’s prehistoric Tequesta Indian village site brings politics into preservation question

03/08/2014 2:33 PM

03/08/2014 6:28 PM

When developer MDM Group managed to yank away from Miami’s historic preservation board last week the question of what to do with the discovery of a significant prehistoric Tequesta Indian village site, they moved the ball into a potentially more advantageous court — the political, deal-making world of the City Commission.

And, in fact, the negotiating has already begun over the array of carved postholes that archaeologists say likely represent the foundations of a 2,000-year-old village.

Miami Commissioner Marc Sarnoff, whose district includes downtown, summoned MDM attorney Eugene Stearns to his office Monday to urge a compromise that would save the most important archaeological features on the site, both participants said. Sarnoff is also proposing the unusual step of asking the property owners to enter into mediation with preservationists.

But therein lies the rub: Who gets to decide what those “important” features are, how they’re best protected and displayed, and what would be destroyed and re-buried? And who would enforce those decisions?

Ordinarily, the process would start with the historic preservation board — which under the city code has legal authority over archaeological and historic sites — and the city’s preservation office. The board already had a say because the site sits in a long-designated archaeological zone. But after months of accumulating finds at the site, the board last month began taking action to evaluate and protect the archaeological features.

First it rejected a plan by MDM to cut out a circular posthole arrangement for display in a nearby plaza, then it asked the developer to come back with a better plan for protection of the archaeological features in place. Finally it asked the city’s preservation officer for a preliminary report on the merits of designating the site as a protected historic landmark, which would give the board greater oversight over any development.

But in a surprising, unprecedented action, an assistant city attorney on Tuesday stopped the board, at least temporarily, from discussing the designation of the Tequesta site, which also includes remnants of Henry Flagler’s Royal Palm Hotel and a 19th Century U.S. Army fort.

Assistant city attorney Amanda Quirke cited MDM’s pending appeal of all three previous board decisions, filed with the City Commission, which she said need to be settled first. The commission hears appeals of board decisions.

In halting the hearing, dismayed preservationists and historians say, the city may have short-circuited the legal procedures set up precisely to make those determinations of significance, and set a worrisome precedent that other developers could exploit in opposing efforts to save Miami’s ever-shrinking store of historic buildings and sites.

“There’s never been a historical find like this, certainly not in South Florida, but I just think this whole process has been an abomination,” said University of Miami historian Greg Bush, a founder of the Urban Environment League.

Bush has met with Sarnoff to voice his concerns. “This is backroom stuff, clearly,” he said.

Several attorneys with extensive experience in Miami land-use, municipal and preservation issues contacted by the Miami Herald, and who spoke on the basis of anonymity, called the city attorney’s action “unusual’’ and “odd.” All said the city had no legal obligation to halt the preservation board hearing absent a stay from a court, and surmised the decision might have been motivated at least in part by political considerations.

Quirke had originally said that the board’s vote and MDM’s appeals could run on separate, parallel tracks, according to Elizabeth Merritt, deputy general counsel at the National Trust for Historic Preservation, who met with Quirke and other city staffers.

Miami Mayor Tomas Regalado, who has been largely silent on the Tequesta issue, defended the decision by the city attorney’s office. But he said he believes the preservation board will eventually get its say after the City Commission weighs MDM’s appeals, in a hearing tentatively set for March 27.

“I respect that board,” Regalado said. “They’re going to have their hearing and their vote, but first we have to resolve the first appeal. It’s not that the city attorney wants to silence the board. We don’t want to have two parallel votes.”

One preservation expert said the procedural issues may not be significant in the long run, given that a decision as fraught as whether or how to save the downtown Tequesta site from proposed development would likely ultimately fall to the City Commission on appeal anyway.

But the wisest immediate course for the commission, said David Doheny, retired counsel for the National Trust for Historic Preservation, is to deny MDM’s appeals and allow the preservation board to proceed.

“It seems to me the historic board is in a perfect position to go ahead and designate,” said Doheny, a former assistant state and U.S. attorney in Miami who has closely followed the Tequesta site debate. “There’s no question it’s very important. It’s been overwhelming testimony to that effect.

“There are three levels of history there, from the Tequesta on up through Fort Dallas and the Royal Palm Hotel. There aren’t many places in this country that present that kind of opportunity to interpret that panoply of history, especially in tandem with the Miami Circle across the river.”

MDM — which has plans to build a hotel and entertainment complex called Met Square on the two-acre site — and its attorneys sharply disagree.

Stearns, while not entirely dismissing the site’s historical significance, has ridiculed archaeologists’ conclusions that the postholes probably mark the site of Tequesta dwellings and structures as “hokum,” contending that most of the carvings are instead random, insignificant “noise” produced by later settlement on the site by successive groups.

That posture marked a sharp turnaround for MDM, which in years of intermittent digging at the site had not contested the value of the finds by its consulting archaeologist, Bob Carr. Days before the firm hired Stearns to fight preservation of the site, MDM director Ian Swanson had praised Carr’s work in an interview.

Last week, Stearns said MDM has asked its architects to explore the feasibility of saving and integrating two circular arrangements of postholes that may have been carved by the Tequesta into its project for public display. That alternative would be presented to the commission during the appeal hearing, he said.

But Sarnoff said he believes independent mediation, which the city successfully used recently in settling a legal case over the rights of the homeless to congregate downtown, could provide a way out of the impasse.

He said Carr and other experts have already developed enough information to enable agreement on what must be saved on the site, even if there is no formal report yet from the archaeologist marshaling and analyzing the evidence — something the preservation board likely would request. Carr has said he has not yet fully surveyed the site.

“I think there are enough facts out there. What I do know is, there are a host of people who believe this site should be preserved. There are private property rights,” Sarnoff said, adding that he intends to ask fellow commissioners for support for mediation at their meeting Thursday before the MDM appeals would be heard. “Sometimes the best time to negotiate a settlement is when everything is unsettled. Uncertainty breeds compromise.

“My idea is, could you sit down at a table and see if everyone can live with a compromise so that it can become an educational, interesting place to be?”

Merritt, the national trust counsel, said mediation has been used in numerous instances to save historic sites while allowing compatible development to occur.

“It can be very successful,” she said. “There often is an architectural solution that requires some creativity but can achieve preservation while allowing a new project to go forward. But you have to have two willing parties.”

The difficulties, she said, can be in deciding who sits around the table — who speaks for preservation, and who for the city, since municipal bodies can be at odds — and then deciding who enforces any decisions.

That’s why some local preservationists say they are dubious about mediation, and support letting the preservation board do what it’s designed to do. The board’s nine members — who represent disciplines ranging from architecture to preservation and real-estate development — commission studies, gather public testimony and get professional advice from the city preservation officer to decide whether a property merits designation,

Then they would review any plans for development on the designated site for compatibility to make sure that historic or archaeological features are unaltered and appropriately visible to the public. A developer seeking to build on a historic site needs the board’s OK before the city will issue a building permit.

Bypassing the board entirely, argued historian Arva Moore Parks, would set a bad precedent. In the future, she said, developers fighting designation of a property could make an end run by appealing to the commission routine requests by the board for a staff report before any decision on designation is even discussed, as MDM did.

“I care about the site, but this is a bigger issue about preservation,” Parks said. “All they did was ask for a designation report. How can you appeal something that hasn’t happened?”

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