Ethics concerns could torpedo a task force reviewing the potent Miami 21 zoning code
Faced with a sticky ethical quandary over the makeup of a task force that’s supposed to review the city’s decade-old Miami 21 zoning code, Miami commissioners kicked the can down the road — and may have effectively torpedoed the panel, at least in its current form.
At Thursday’s meeting, commissioners unanimously voted to defer the matter until September, forcing cancellation of all task force meetings until then. After months of delay forced by the COVID-19 pandemic, the task force has met only once, in an organizational meeting in June with limited participation until ethics questions could be clarified.
Though dryly technical, the task-force endeavor could have a significant impact on city residents. The Miami 21 code, which is broadly credited with helping usher in Miami’s transformation into a dense and increasingly pedestrian-friendly, mixed-use urban center, governs what can be built, and where, and how big it can be.
At that organizational meeting, city planners laid out an ambitious agenda for the task force’s monthly meetings that included fostering development of critically needed affordable housing; figuring out new rules for developing projects to meet sea-level rise; reviewing existing zoning for specific city neighborhoods; and addressing issues of equity and gentrification that Miami 21 may have inadvertently helped fuel.
Commissioner Manolo Reyes, who pushed for the creation of the task force and who requested the deferral, suggested at Thursday’s hearing that he and other commissioners may want to revisit the whole set-up in September. Reyes said he would like refocus it on what he described as the original goal: Better protecting single-family neighborhoods from intrusive, over-scaled development in abutting zoning districts.
The ethical question dogging the effort centers on the participation on the 12-member volunteer task force of three prominent developers’ attorneys and one well-known architect. All three are registered with the city to lobby for clients — dozens, in the case of each of the lawyers. Some activists have complained that represents a conflict of interest, because the panel members could influence the rewriting of zoning rules in ways that benefit clients.
City officials sought two opinions on the question, one from Miami-Dade County’s Commission on Ethics, and the other from the Florida Commission on Ethics, bodies that have jurisdiction over certain city operations.
They received two different answers.
The state commission advised the city that the lobbyists occupying six task force seats reserved for people with particular expertise, including land-use law, have no legal conflict. That’s because state law allows the participation of specialists on such advisory panels when their professional expertise is required. That broadly exempted two task force members, attorneys Vicky Leiva of Bilzin Sumberg, and Iris Escarra of Greenberg Traurig. Both are registered lobbyists appointed to seats designated for those with land-use law expertise.
But the state commission also said that members who are lobbyists could run afoul of conflict-of-interest rules if appointed to any of the six seats reserved for city residents with no particular expertise. The opinion, apparently written before task force members were appointed by Mayor Francis Suarez and the commissioners, did not name anyone. But that description applies to two task-force members, land-use attorney Melissa Tapanes Llahues, of Bercow Radell Fernandez Larkin & Llahues, and architect Bernardo Fort-Brescia, co-founder of Arquitectonica, both named to seats designated for residents.
The state did propose a cure: A supermajority of the city commission, or four members of the five-member commission, could vote to “waive” the potential conflicts. For that to happen, both Tapanes Llahues and Fort-Brescia would have to make full disclosure in advance of potential conflicts.
The county ethics commission, bound by Miami-Dade ordinances, responded that it would have jurisdiction over the task force only if its life extends beyond 12 months. At that point, Miami-Dade Commission Executive Director Jose Arrojo said, county conflict rules would kick in, though he did not specify how that would affect task force members.
But that presented a dilemma. Because the commission approved creation of the task force in December 2019, it would have to expire this December or potentially come under county ethics jurisdiction. The precise timeline is unclear, because Arrojo said delays caused by the pandemic and Suarez’ declaration of an emergency could extend that deadline.
City attorney Vicky Mendez presented the commission with a resolution that would do just what the state commission suggested — waive all conflicts upon submission of disclosure forms.
Tapanes Llahues said she has submitted the required disclosure form and remains willing to serve, but would not comment further.
Fort-Brescia said he remains willing to serve on the task force and his office is working on filling out the state disclosure form.
“I’m willing to serve, as long as they want me,” he said, noting that because of his long experience with both the Miami 21 code and its predecessor he knows where the rules don’t work as intended. “I was doing this as a community thing. I was willing to dedicate time to do this. Because of the amount of work we do in town, we encountered all the contradictions in the Miami 21 code. No code is perfect.”
On Thursday, a frustrated-sounding Reyes referred only to the county opinion in asking for the September deferral. At that point, he said, he will want the city’s planning board to review the task force effort.
“Then we can strategize how to extend the life of this committee,” he said.
No commissioner brought up the state option or Mendez’ resolution on Thursday, and no one objected to the delay.
Attorney David Winker, who first raised the potential for conflicts of interest on the board months ago, said the city should replace registered lobbyists on the task force and instead seek their expert testimony as witnesses.
“The execution of the Task Force was hijacked by special interests,” Winker said in an email. “I pointed out the problems with these appointments from the beginning, but it wasn’t until the Miami-Dade and Florida Commissions on Ethics got involved and agreed with the ethical and legal issues I raised that the task force was mercifully put out of its misery.”
Reyes, who named Leiva and Tapanes Llahues to the panel, strenuously defended the participation of lobbyists on the task force. The commissioner said he thoroughly vetted both the attorneys before appointing them.
“They have the best intention and they are professionals,” Reyes said. “Who knows better where are the loopholes than those people who are doing it daily?”
Reyes added a moment later: “If you have a problem with your car, you go to a mechanic.”
This story was originally published July 24, 2020 at 1:02 PM.