In the City Commission of the City of Miami, Florida Resolution No. 14-0098, March 27, 2014 Agenda in the Matter Of: Miami Hist

IN THE CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA

RESOLUTION NO. 14-0098, MARCH 27, 2014 AGENDA

IN THE MATTER OF:

MIAMI HISTORICAL AND ENVIRONMENTAL PRESERVATION BOARD, vs.

MDM DEVELOPMENT GROUP.

______/

MDM’S APPEAL OF THE FEBRUARY 14, 2014 DECISIONS OF THE HISTORIC AND ENVIRONMENTAL PRESERVATION BOARD AND SUPPORTING MEMORANDUM

STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Eugene E. Stearns Gordon M. Mead, Jr. Museum Tower, Suite 2200 150 West Flagler Street Miami, Florida 33130

WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. Anthony L. Recio 2525 Ponce de Leon Blvd., Suite 700 March 24, 2014 Coral Gables, FL 33134

Museum Tower 150 West Flagler Street, Suite 2200 Miami, FL 33130 (305) 789-3200

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... iv

INTRODUCTION ...... 1

ISSUES ...... 2

THE HEP BOARD’S FEBRUARY 14, 2014 DECISIONS SHOULD BE REVERSED, THE MEDIATED ACTION PLAN SHOULD BE APPROVED, AND DEVELOPMENT AT MET SQUARE SHOULD GO FORWARD ...... 6

I. The HEP Board Lacked Jurisdiction to Renege on the Action Plan in Favor of Full Preservation...... 6

A. The HEP Board Blew the 60-Day Time Limit ...... 6

B. The HEP Board Exceeded its Jurisdiction by Imposing an Economic Hardship ...... 9

II. The Mediated Action Plan Should Be Approved Because It Exceeds the Requirements of the Historic Preservation Chapter, Advances Its Goals, and Contributes to the City’s Policy Objectives of Promoting Good Urban Planning, Protecting the Environment, and Promoting Economic Growth Downtown ...... 11

A. Preservation, Interpretation, and Education ...... 12

1. Historic Preservation Chapter ...... 12

2. The Mediated Action Plan Preserves and Displays the Post-Holes That the Parties Have Agreed Are Most Likely Associated with the Tequestas ...... 13

a. The City’s and County’s Hypothesis about the Tequestas ...... 13

b. An Alternate Hypothesis about the Tequestas...... 14

i. The Prehistoric Record ...... 15

ii. History Of The Tequestas On The North Bank Of The Miami River ...... 15

iii. History after The Tequesta Left The North Bank Of The Miami River ...... 16

c. Consensus about the Importance of the Southwest Corner and Northeast Corner Circles for the Tequesta Period ...... 17

d. The Mediated Action Plan Presents an Opportunity to Tell the Full History of the North Bank of the Miami River...... 17

e. The Mediated Action Plan Is Far Superior to the Outcome at the Miami Circle ...... 18

3. The Mediated Action Plan Promotes the Urban Planning Principles Outlined in Miami 21, the Environmental Principles Outlined in the City of Miami Climate Action Plan, and Economic Growth Downtown...... 19

III. In the Alternative, the HEP Board’s and the City’s Actions Equitably Estop Them from Preventing Development from Going Forward at METsquare ...... 20

IV. In the Alternative, the HEP Board’s Decisions Violated Due Process ...... 22

A. The HEP Board Members Made Comments Pre-Judging the Dispute ...... 23

B. Most HEP Board Members Did Not Read MDM’s Pre-Hearing Written Submission ...... 24

C. The HEP Board, Without Advance Notice, Severely Limited the Amount of Time That MDM Had to Present its Case ...... 25

D. The HEP Board Did Not and Could Not Identify any Evidence Supporting its Exercise of Jurisdiction or its Decisions ...... 27

E. The HEP Board Attempted to Reserve Perpetual Jurisdiction ...... 28

F. A HEP Board Member Made a Subsequent Public Statement and Another Requested to Testify in Front of the City Commission ...... 29

V. In the Alternative, The HEP Board’s Actions Constitute a Taking without Compensation ...... 30

A. First Principles of Takings Jurisprudence ...... 31

B. The Scope of the HEP Board’s Decisions Addressing Action Plans...... 32

C. The HEP Board’s Decisions Require a Physical Occupation, Which Is a Per Se Taking That Requires Compensation ...... 33

D. If the HEP Board or the City Commission Deprives MDM’s Owners of All Economic Use, That Will Be a Per Se Taking Requiring Full Compensation ...... 35

E. In the Alternative, the HEP Board’s Actions Are a Taking under the Three-Prong Test Established by Penn Station ...... 36

F. Full Compensation Is a Staggering Amount ...... 38

VI. In the Alternative, the HEP Board’s Actions Violate the Bert Harris Act ...... 39

VII. In the Alternative, the HEP Board’s Actions Impose an Unconstitutional Condition That Requires Full Compensation...... 40

VIII. In the Alternative, the Historic Preservation Chapter and City Policies Require Reversal ...... 41

CONCLUSION ...... 41

Appendix A — Renderings ...... A-1

Appendix B — Agreement Reached at Mediation and Mediated Action Plan ...... B-1

Appendix C — History of Permitting, Resolutions, Reports, Notices, and HEP Board Actions ...... C-1

Appendix D — Analysis of the Prehistoric Record ...... D-1

Appendix E — Written Accounts of the Tequestas ...... E-1

Appendix F — History of the North Bank of the Miami River after the Tequesta Left...... F-1

iii

TABLE OF AUTHORITIES

CASES

Ark. Game and Fish Comm’n v. United States, 133 S. Ct. 511 (2012) ...... 34

Armstrong v. United States, 364 U.S. 40 (1960) ...... 31

Bd. of Cnty Comm’rs of Metro. Dade Co. v. Lutz, 314 So. 2d 815 (Fla. 3d DCA 1975) ...... 21

Bd. of Cnty. Comm’rs of Brevard Cnty. v. Snyder, 627 So. 2d 469 (Fla. 1993) ...... 27

Broward Cnty. v. G.B.V. Int’l Ltd., 787 So. 2d 838 (Fla. 2001) ...... 27

Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003) ...... 34

Castro v. Miami-Dade Conty Code Enforcement, 967 So. 2d 230 (Fla. 3d DCA 2007) ...... 21

Cherry Commc’ns v. Deason, 652 So. 2d 803 (Fla. 1995) ...... 30

City of Hialeah v. Allmand, 207 So. 2d 9 (Fla. 3d DCA 1968) ...... 21

City of Miami v. 20th Century Club, Inc., 313 So. 2d 448 (Fla. 3d DCA 1975) ...... 21

City of Miami v. Fla. E. Coast Ry. Co., 286 So. 2d 253 (Fla. 3d DCA 1973) ...... 21

Deel Motors, Inc. v. Dep’t of Commerce, 252 So. 2d 389 (Fla. 1st DCA 1971) ...... 26

Dep’t of Agriculture and Cons. Servs. v. Mid-Florida Growers, 521 So. 2d 101 (Fla. 1988) ...... 32

Dep’t of Agriculture and Cons. Servs. v. Mid-Florida Growers, Inc., 570 So. 2d 892 (Fla. 1990) ...... 38

Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001) ...... 28

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...... 35, 40

Estate of Tripett v. City of Miami, 645 So. 2d 533 (3d DCA 1994) ...... 38

Fla. Water Servs. Corp. v. Robinson, 856 So. 2d 1035 (Fla. 5th DCA 2003) ...... 29

Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) ...... 28

Gulf Power Co. v. United States, 187 F.3d 1324 (11th Cir. 1999) ...... 34

Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10 (Fla. 1976) ...... 21

Jennings v. Dade Cnty, 589 So. 2d 1337 (Fla. 3d DCA 1991) ...... 23, 24, 25

Joint Ventures, Inc. v. Dep’t of Transp., 563 So. 2d 622 (Fla. 1990) ...... 31

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ...... 35

Keys Citizens For Responsible Gov’t, Inc. v. Florida Keys Aqueduct Auth., 795 So. 2d 940 (Fla. 2001) ...... 23

Kupke v. Orange County, 838 So. 2d 598 (Fla. 5th DCA 2003) ...... 26

Liberman v. Ryne, 248 So. 2d 242 (Fla. 3d DCA 1971) ...... 29

Loretto v. Teleprompter Manhatten CATV Corp., 458 U.S. 419 (1982) ...... 34

Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992)...... 36

MacDonald Sommer & Frates v. Yolo Co., 477 U.S. 340 (1986) ...... 28

Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975) ...... 38

Matthews v. Eldridge, 424 U.S. 319 (1976) ...... 22, 23

Metro Dade Cnty v. P.J. Birds, Inc., 654 So. 2d 170 (3d DCA 1995) ...... 30

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987) ...... 35, 40

O.P. Corp. v. Vill. of N. Palm Beach, 278 So. 2d 593 (Fla. 1973) ...... 21

Ocean Villa Apartments v. City of Fort Lauderdale, 70 So. 2d 901 (Fla. 1954) ...... 36

Pa. Central Transport. Co. v. City of N.Y., 438 U.S. 104 (1978) ...... 36, 37

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) ...... 31

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ...... 28

Palm Beach Cnty v. Cove Club Investors Ltd., 734 So. 2d 379 (Fla. 1999) ...... 32

Prof’l Air Traffic Controllers Org. v. Federal Labor Relations Auth., 685 F.2d 547 (D.C.Cir.1982) ...... 24

Richbon, Inc. v. Miami-Dade Cnty, 791 So. 2d 505 (Fla. 3d DCA 2001) ...... 21

Ridgewood Props., Inc. v. Dep’t of Cmty. Affairs, 562 So. 2d 322 (Fla. 1990) ...... 23, 30

Rinker Materials Corp. v. City of N. Miami, 286 So. 2d 552 (Fla. 1973) ...... 10

Sakolsky v. City of Coral Gables, 151 So. 2d 433 (Fla. 1963) ...... 21

Seminole Entm’t, Inc. v. City of Casselberry, 811 So. 2d 693 (Fla. 5th DCA 2001) ...... 23, 25

St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220 (Fla. 2012),

rev’d on other grounds, Koontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct. 2586 (2013) ...... 31

Stein v. Prof’l Ctr., S.A., 666 So. 2d 264 (Fla. 3d DCA 1996) ...... 30

Stoppa v. Sussco, Inc., 943 So. 2d 309 (Fla. 3d DCA 2006) ...... 28

Storer Cable T.V. of Florida v. Summerwinds Apartments Assocs., Ltd., 493 So. 2d 417 (Fla. 1986) ...... 34

Stroemel v. Columbia Conty, 930 So. 2d 742 (Fla. 1st DCA 2006) ...... 10

Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Reg. Planning Agency, 535 U.S. 302 (2002) ...... 34

United States v. 50 Acres of Land, 469 U.S. 24 (1984) ...... 38

United States v. Diveroli, 729 F.3d 1339 (11th Cir. 2013) ...... 28

Villas of Jackson, Ltd. v. Leon Co., 121 F.3d 610 (11th Cir. 1997) ...... 23

Yost v. Fiallos, 64 So. 3d 699 (Fla. 3d DCA 2011) ...... 29

CONSTITUTIONAL PROVISIONS

Fla. Const. Art. 1, § 9 ...... 22

Fla. Const., Art. X, § 6(a) ...... 31

U.S. Const., Amend XIV ...... 23

U.S. Const., Amend. V...... 31

STATUTES

Fla. Stat. § 286.0115 ...... 24

Fla. Stat. § 70.001 ...... 40

Miami City Code § 23 ...... passim

vii

CANON

Fla. Code Jud., Conduct Canon 3(B)(9) ...... 30

OTHER AUTHORITIES

David Wheatley & Mark Gillings, Spatial Technology and Archeology, The Archaeological Applications of GIS 125 (Taylor & Francis 2002) ...... 15

Memorandum to Rules of Judicial Administration Committee of the Florida Bar from Ad Hoc Committee on Broward v. G.B.V., Environmental Land Use Law Section of the Florida Bar dated Nov. 29, 2001 (T.R. Hainline, dissenting)...... 29

H.G. Multer & J.E. Hoffmeister, Subaerial Laminated Crusts of the Florida Keys, 79 Geological Soc’y of Am. Bulletin 183, 29 (1968) ...... 16

John W. Griffin, Archaeology & History of the Granada Site, Excavations at the Granada Site (Florida Dept. of State 1971) ...... 15

Ronald D. Rotunda and John E. Nowak, 2 Treatise on Const. L...... 41

viii

MDM appeals the February 14, 2014 decisions of the Historic and Environmental

Preservation Board (“HEP Board” or the “Board”), pursuant to Miami City Code §§ 23-6.2(e) and 23-4(c)(7), and submits the following memorandum in support thereof:

INTRODUCTION

The two-day mediation recommended by this Commission produced a landmark victory for the City of Miami: preservationist groups, individuals, government representatives, and

MDM there agreed to a Mediated Action Plan that will preserve and showcase archaeological features associated with the Tequestas within the METsquare development while also offering substantial interpretive, historic, and educational exhibits in a highly-trafficked, 1,200 square- foot, pedestrian plaza. Conceptual renderings of two circles preserved in place and displayed to the public are in Appendix A, and the Agreement Reached at Mediation and Mediated Action

Plan is in Appendix B.

The Mediated Action Plan also allows development at METsquare to go forward, promoting the City’s independent policy objectives of good urban planning, protecting the environment, and promoting economic growth downtown. This Commission can and should be proud of the results of the process that it initiated, that many preservation-minded individuals, groups, and agencies participated in, and that Angel Cortiñas brokered.

On this appeal, this Commission should reverse the HEP Board and then approve the

Mediated Action Plan. The Mediated Action Plan goes far beyond the requirements of the

Historic Preservation Chapter. As contemplated by the Mediated Action Plan, the HEP Board’s only remaining involvement should be in further designation proceedings and in approving the content of the interpretive plaza and neither should interfere with the development of

METsquare.

Finally, MDM raises other legal issues in this memorandum out of an excess of caution to avoid any risk of waiving any rights because of the magnitude of this matter. Until the signing of the Agreement Reached at Mediation less than a week ago, prospective tenants and purchasers at METsquare rightfully expressed fears almost daily about the delays because of the HEP

Board’s actions and about what it might do in the future. In the unlikely event that the HEP

Board’s sweeping preservation-of-all-things-at-all-costs approach carries the day, it would wreck not only MDM’s current development plans but also any efforts to secure any replacement tenants or purchasers. Although MDM does not believe it is necessary for the Commission to reach these issues, MDM must spell out its legal claims and avoid any risk — no matter how remote — of waiving or compromising them because the potential damages to MDM, although currently incalculable, are enormous.1

ISSUES

The City Commission reviews the following issues de novo:

1. Did the HEP Board lack jurisdiction to repudiate the action plan in favor of full preservation either because:

a. The HEP Board’s resolution required it to act within 60 days of any notice

of significant discovery, the City repeatedly reincorporated that

requirement in a string of subsequent permits and a warrant until as

1 “MDM” includes all of the entities with an ownership interest in Met 1, Met 2, Met 3, and METsquare, which will all be impacted by the HEP Board’s decisions and this appeal. MDM Group LLC manages METsquare. MDM Retail, Ltd. owns METsquare. “Met Miami” refers to the following four properties: Met 1, Met 2, Met 3, and METsquare.

The appendices are attached. References to “Ex. __” are to exhibits to the Binder of Exhibits Submitted in Support of MDM’s Appeal of the February 14, 2014 Decisions of the Historic and Environmental Preservation Board, which has been sent to the Clerk. Additional copies are available upon request. MDM also incorporates the record of all proceedings in front of the HEP Board, including but not limited to the DVDs of all meetings in front of the HEP Board.

recently as last year, and the HEP Board failed to repudiate the action plan

in favor of full preservation until 47 days after that deadline lapsed; or

b. The Historic Preservation Chapter of the Miami City Code provides that

“[n]o decision of the [HEP] Board shall result in an unreasonable or undue

economic hardship for the owner” and undisputed evidence established

that a delay would destroy the possibility of development and that

redesigning METsquare to preserve all post-holes would result in an

unreasonable and undue hardship?

2. Should the Commission modify the decision of the HEP Board to permit development to go forward consistent with the Mediated Action Plan, which exceeds the requirements of the Historic Preservation Chapter and independently promotes the City’s policy objectives of promoting good urban planning, protecting the environment, and promoting economic growth downtown?

3. In the alternative, are the HEP Board and the City equitably estopped from refusing to allow MDM to develop METsquare when, for over a decade, they have repeatedly passed major use special permits, other resolutions, building permits, and a warrant granting permission to go forward and, now, at the last minute, seek to pile on new conditions after those created by their prior approvals either been satisfied or indisputably will be satisfied?

4. In the alternative, did the HEP Board violate due process when its members made comments to the media pre-judging the dispute, its members admitted that they did not read

MDM’s written submission prior to the hearing, the Board without advance notice severely limited the time that MDM had to present its case, the Board did not and could not identify any evidence supporting its exercise of jurisdiction or its decisions, the Board attempted to reserve

perpetual jurisdiction by beginning the certification process anew, and a Board member made a subsequent public statement to the media and another requested that the members of the HEP

Board be able to testify in front of the Commission as advocates on this appeal?

5. In the alternative, did the HEP Board’s February 14, 2014 actions constitute a taking without compensation where they:

a. Required physically dedicating at least a portion of the private property

owned by MDM at METsquare for, according to the individual statements

of HEP Board members, public purposes associated with archaeology,

history, or education;

b. Would deprive METsquare’s owners of all economic use; and

c. Would have an enormous, undisputed economic impact on MDM, would

interfere with substantial and distinct investment-backed expectations, for,

according to the individual statements of HEP Board members, a public

purpose?

6. In the alternative, did the HEP Board’s February 14, 2014 actions violate the Bert

Harris Act either because they:

a. Inordinately burdened MDM’s reasonably foreseeable uses of METsquare

or vested rights in METsquare by interfering with its ability to deliver

property to potential lessees and buyers and piling on additional conditions

to the development of METsquare after the time had lapsed for the Board

to do so; or

b. Forced MDM to bear permanently a disproportionate share of the burden

imposed for, according to the individual statements of the HEP Board

members, the good of the public at large that should have been borne by

that public?

7. In the alternative, did the HEP Board’s February 14, 2014, actions constitute an unconstitutional condition or exaction where all of the alternatives for METsquare are inferior from an archaeological, historical, and educational perspective, the citizens of Miami have demonstrated an unwillingness to pay to advance those goals at the Miami Circle site, and the burden on MDM will be enormous?

8. In the alternative, did the HEP Board ignore, misinterpret, or misapply the

Historic Preservation Chapter of the Miami City Code by reneging on the action plan in favor of full preservation, despite the fact that halting the METsquare development would harm the downtown neighborhood, decrease property values, diminish the neighborhood’s attractiveness to residents, cause undue hardship, unreasonably restrict the primary use of the property, and full preservation of all of the 1,500 to 2,000 post-holes found on the METsquare property was not justified by any finding of “exceptional importance”?2

2 This memorandum frames the issues and arguments under this Commission’s de novo standard of review, but that standard is not the only one that requires reversal. The HEP Board’s decisions are not justifiable under any standard of review now or in the future because they are contrary to controlling law, the HEP Board did not make any findings that would be entitled to any deference, and the HEP Board did not and could not identify any evidence supporting its decisions.

THE HEP BOARD’S FEBRUARY 14, 2014 DECISIONS SHOULD BE REVERSED, THE MEDIATED ACTION PLAN SHOULD BE APPROVED, AND DEVELOPMENT AT MET SQUARE SHOULD GO FORWARD

I. The HEP Board Lacked Jurisdiction to Renege on the Action Plan in Favor of Full Preservation

A. The HEP Board Blew the 60-Day Time Limit

In 2002, the City Commission issued the substantial modification to a major use special permit for the development now known as Met Miami that included METsquare, and now in

2014, some eleven years later, the HEP Board has brought the development to a halt. The history of permitting, written archaeological reports, resolutions, written notices of significant discovery, and a warrant permitting development to proceed at each stage of the last fifteen years is set forth in Appendix C.

Robert Carr, an archaeologist who began working on the site prior to MDM’s acquisition of METsquare and whose firm was selected by the City, was paid by MDM.

On November 19, 2002, the HEP Board passed Resolution No. 2002-68, requiring it to

“act upon any notice of a significant discovery within 60 days of written notification by the developer.” Ex. 2 at 2 (all capital letters in original). On June 15, 2004, the HEP Board issued

Resolution No. 2004-48, leaving the prior resolution intact, addressing certain unrelated archeological issues, and creating the right to review the “final plans” for “interpretive elements” in the plaza. Ex. 3. Many subsequent permits and City documents expressly incorporated HEP

Board Resolution No. 2002-68, including a May 21, 2013 warrant, Ex. 4 at 2-3. The warrant spelled out how MDM intended to comply with the HEP Board resolutions and that the City had long known of those plans in detail: it incorporated an October 31, 2002 proposal from Carr for an interpretive display in the plaza; it required all archaeological materials not remaining on site to be fully documented, catalogued, and transferred to HistoryMiami; and, again citing 2005

letters from Carr to the City, required re-locating the Northwest Corner Circle, then called the

Royal Palm Circle, to the plaza and re-locating steps from the Royal Palm Hotel to the plaza.

Ex. 4.

On October 13, 2013, the City of Miami issued and subsequently reissued a permit for driving test piles, and the final version listed as its first condition: “[a]ll requirements of Warrant

13-0013, HEPB-2002-68, [and] HEPB-2004-48 . . . remain in effect.” Ex. 5 (emphasis added).

From July 2002 to October 13, 2013, Carr sent the HEP Board or its staff written reports and six notices of what he identified as significant discoveries concerning archaeology at Met

Miami. See Appendix C. On October 30, 2013, Carr emailed the City Preservation Officer his last written notice of significant discovery concerning METsquare. Ex. 6.

At the February 14, 2014 HEP Board meeting, the City Preservation Officer testified that the action plan “with further elaboration” of the “details of the interpretation” is “in compliance” with Resolution No. 2004-48. Ex. 1 at 158-59. She also agreed that the action plan “seem[s] to be in substantial compliance with the warrant.” Ex. 1 at 159. Thus, the HEPB Board’s only conceivable basis of authority was its reservation of power to act within 60 days of a notice of significant discovery under Resolution No. 2002-68.

The HEP Board blew its 60-day deadline. Giving the HEP Board every benefit of the doubt, 60 days from the last notice of significant discovery dated October 30, 2013 is December

29, 2013. The HEP Board did not take any action until February 14, 2014, 47 days after that deadline lapsed. The 60-day limit was a critical jurisdictional constraint and an absolute prerequisite to any exercise of the HEP Board’s power: it ensured that the HEP Board would notify MDM of any changes promptly before MDM invested more money in developing plans, negotiating leases, and negotiating sales contracts.

The City Preservation Officer has identified two emails from Carr dated January 24, 2014 and February 3, 2014 and labeled them notices of significant discovery, but they were not for seven reasons:

(1) On November 15, 2013, Chairperson of the HEP Board Committee

William Hopper appeared on NPR’s All Things Considered and said “It

wasn’t really until probably September that we began to have an idea of

the significance of the find there. . . .” Ex. 7.

(2) Carr’s January 24, 2014 email twice calls itself a “monthly report” and

nowhere uses words like notice of significant discovery. Ex. 8. It also

identified only more of the same: two more potential “circles,” raising

Carr’s possible count from six to eight. Ex. 8.

(3) The February 3, 2014 email is labeled “addendum” to “monthly report”

twice, nowhere uses words like notice of significant discovery, and also

only identifies more of the same. Ex. 8.

(4) A comparison of Carr’s drawings of circles and lines on pictures and maps

attached to his reports over time shows that the January 24, 2014 and

February 3, 2014 emails did not communicate anything new. See

Appendix C.

(5) The HEP Board meeting minutes from December 9, 2013, January 7,

2014, and February 4, 2014 all refer to “monthly reports” and do not

mention “notices of significant discovery.” Ex. 9 at 7; Ex. 10 at 10;

Ex. 11 at 9.

(6) The City Preservation Officer acknowledged in the draft case studies sent

to MDM’s counsel on Thursday, February 6, 2014 at 6:04 p.m.: “During

the summer of 2013, a significant archaeological discovery” was made at

METsquare, namely “[t]he foundations of a Tequesta village.” Ex. 12 at

2. The City Preservation Officer revised that language prior to submitting

the case studies to the HEP Board to read the “fall of 2013” (not the winter

of 2014 when Carr sent the emails they now rely on) and continued to

identify the “significant archaeological discovery” as “[t]he foundations of

a Tequesta village.” Ex. 13 at 2. Carr and others, of course, had long

been touting the claims of the “foundations of a Tequesta village.” See

Appendices C.

(7) The City Preservation Officer testified at the February 14, 2014 hearing

that “[b]y the fall of 2013, it became apparent that we were not simply

looking at an isolated [posthole] feature . . . but, rather, that the patterns

and circles were inter-related and likely signifies foundation[s] of a

Tequesta village that had long been understood to be located there.” Ex. 1

at 134-35.

The HEP Board’s failure to honor the limits to its own jurisdiction here, standing alone, requires reversing its decision and permitting the development of METsquare.

B. The HEP Board Exceeded its Jurisdiction by Imposing an Economic Hardship

The Historic Preservation Chapter of the Miami City Code provides: “No decision of the

[HEP] Board shall result in an unreasonable or undue economic hardship for the owner.” Miami,

Fla., City Code § 23-6.2(b)(4). The HEP Board’s website states: “The Board does not have

authority to require anything that would create an unreasonable or undue economic hardship for the owner.” Ex. 14. Moreover, the Historic Preservation Chapter does not provide any method for the HEP Board to compensate a landowner for taking its property, and therefore cannot be interpreted to permit the HEP Board to effect a taking.3 The Historic Preservation Chapter defines an “unreasonable or undue economic hardship” as “[a]n onerous and excessive financial burden that destroys reasonable and beneficial use of property and that would amount to a taking of property without just compensation, or failure to achieve a reasonable economic return in the case of income-producing properties.” Miami City Code § 23-2. The HEP Board has the power to recommend imposing an economic hardship to this Commission, which can then determine whether compensation is required or advisable, but the Historic Preservation Chapter cannot and should not be interpreted to grant that power to the HEP Board itself.

Luis Pulenta, a principal of MDM, testified that METsquare is the “center” and “soul” of the billion dollar Met Miami development because it offers entertainment, a movie theater, and restaurants. Ex. 1 at 69-70. The case studies showed that every redesign alternative considered, even those short of the full preservation approach adopted by the Board, would have increased construction costs, caused construction delays, caused MDM to lose prospective tenants, and many would have imposed additional costs. Ex. 13 at 23, 28-29. Pulenta testified at the HEP

Board hearing that, under the leases being finalized, “[i]f we don’t deliver the space, they can terminate.” Ex. 1 at 81. If delayed, MDM would lose tenants and the ability to sell the retail space, “basically destroy[ing] the possibility of developing anything” at METsquare. Ex. 1 at 72.

3 Interpreting the Historic Preservation Chapter to permit the HEP Board to take property without compensation would violate the United States and Florida Constitutions. See pp. 30-32, below. “Statutes or ordinances should be given that interpretation which renders the ordinance valid and constitutional” and any ambiguities in “zoning regulations” should be construed in favor of the property owner. Rinker Materials Corp. v. City of N. Miami, 286 So. 2d 552, 553 (Fla. 1973); see also Stroemel v. Columbia Cnty., 930 So. 2d 742, 745 (Fla. 1st DCA 2006).

Total payments for executed letters of intent for the purchase of the METsquare space and the lease of the Space in Met 1 contingent on the purchase of additional space in METsquare will be at least $121 million. Ex. 15 ¶ 9. Appraisals done in 2013 peg the total value at completion and stabilization for METsquare at over $144 million. Ex. 15 ¶ 8. The closest that the HEP Board came to a finding on this issue was a single member’s statement in the wake of

Luis Pulenta’s testimony that “we’ve heard very credible testimony about damages, both real and potential.” Ex. 1 at 326-27. The HEP Board’s only conceivable finding established that it lacked jurisdiction.

The Mediated Action Plan exceeds the requirements of the Historic Preservation Chapter, advances its goals, and independently contributes to the City’s policy objectives of promoting good urban planning, protecting the environment, and promoting economic growth downtown.

In front of the HEP Board, MDM committed to preserve every artifact uncovered at the site for eternal public benefit. Thousands of artifacts from the Tequesta era and thousands of artifacts from the extensive use of the site after 1763 — after the Tequesta left Florida — have been located, identified, catalogued, and will be analyzed before being turned over to

HistoryMiami. MDM also committed to create a three-dimensional laser map of every hole on the site identified by the archaeologists. MDM also proposed a public plaza on the east side of the building that would present that history in a public space designed and planned by one of the leading experts in that field. Carr had originally sponsored the action plan re-presented to the

Board on February 14, 2014, and the HEP Board had approved all but the “interpretive” elements to be constructed in the plaza.

In the Mediated Action Plan, MDM, representatives of the City, and certain preservationist groups have agreed to recommend that MDM preserve the Southwest Corner

Circle and the Northeast Corner Circle of postholes in place, build around them, and display them to the public. Those are the circles most likely associated with the Tequesta. MDM will also preserve and display the Fort Dallas-era well and remnants of the Royal Palm Hotel, which was severely damaged in the 1926 hurricane and demolished in 1930.

The Commission has the power on this appeal to review issues de novo, consider additional evidence, and modify the Board’s decision. Miami City Code §§ 23-6.2(e), 23-

4(c)(7). If ever a case existed for the Commission to exercise that authority, it is this one.

A. Preservation, Interpretation, and Education

1. Historic Preservation Chapter

The Historic Preservation Chapter’s Statement of Intent and Purpose identifies goals beyond preserving the heritage of the city “through the identification, evaluation, rehabilitation, adaptive use, restoration, and public awareness of Miami’s historic . . . and archaeological resources.” Miami City

Code § 23-1(a). That Chapter is also intended to “[p]rotect and enhance the aesthetic and environmental character, diversity, and interest of neighborhoods,” “[s]tabilize and improve property values in neighborhoods and in the city as a whole,” and “[p]rotect and enhance the city’s attraction to residents, tourists, and visitors and thereby serve as a support and stimulus to the economy.”

Miami City Code § 23-1(a)(3-5).

The Historic Preservation Chapter provides that for properties located in an archaeological conservation zone like METsquare, “[a] certificate to dig shall be required for any ground disturbing activity.” Miami City Code § 23-6.2(a). The Board may require three things that MDM has already done: a “[s]cientific excavation and evaluation of the site at the applicant’s expense by an archaeologist approved by the board,” “[a]n archaeological survey at the applicant’s expense

conducted by an archaeologist approved by the board,” and a “[p]roposal for mitigation measures.”

Miami City Code § 23-6.2(h)(3(a)(1-3). The only conceivable issue is the last potential requirement:

“[p]rotection or preservation of all or part of the archaeological site for greenspace, if the site is of exceptional importance and such denial would not unreasonably restrict the primary use of the property.” Miami City Code § 23-6.2(h)(3)(a)(4) (emphasis added). And, as explained, the Historic

Preservation Chapter deprives the Board of the power to impose an “economic hardship” in the context of any certificate of appropriateness, including one for a certificate to dig. See pp. 9-11, above.

2. The Mediated Action Plan Preserves and Displays the Post-Holes That the Parties Have Agreed Are Most Likely Associated with the Tequestas

a. The City’s and County’s Hypothesis about the Tequestas

Beginning in 2004, Carr reported part of a circle of holes some 36 feet in diameter, which he speculated might represent a Tequesta house. Ex. 16.

On February 4, 2014, Carr wrote an archaeology summary for METsquare that concluded that of the “thousands of additional post holes, many . . . are part of larger structural features, including at least six (and possibly eight) circular building foundations and many linear alignments possibly representing boardwalks or structures.” Ex. 17. In the City’s February 7,

2014 case studies, the HEP Board’s staff stated that the 2013 “significant archaeological discovery” was “[t]he foundations of a Tequesta village . . . discovered intact, carved into the limestone bedrock along Miami’s ancient shoreline.” Ex. 13. The County archaeologist, Jeff

Ransom, pushed hard for “complete preservation” based on the idea that the Tequestas built large, elevated huts and elevated boardwalks and likened them to structures reconstructed in the

Caribbean. Ex. 1 194, 206.

b. An Alternate Hypothesis about the Tequestas

MDM believes there is sufficient evidence at this point that has not been refuted by other evidence to support a conclusion that the hundreds of postholes in the Southwest Corner Circle, also known as the 3rd Avenue circle, represent a place where, over a long period of time, indigenous people lived in small huts made of immature pine, which the Tequestas stuck in shallow postholes, bent, connected at the top, and then covered with palmetto. The sheer number

— about 450 holes — in that small area are consistent with a hypothesis that the Tequesta were building structures that were being knocked down and rebuilt repeatedly. Ex. 1 at 95-96.

Because the useful life of such structures in that environment would be short, if the peoples lived in the same place over time one would expect to see what we now see — hundreds of holes around a central area of about 30 feet diameter. The band of postholes around the open space would allow huts of about seven feet in diameter created by tying juvenile pine trees together in the middle:

i. The Prehistoric Record

Simply looking at the surveys of holes and drawing lines is not enough to reach any conclusions. Humans tend to see patterns in dots on a page, like stars in the sky. Inferences from perceived patterns alone are tricky, to say the least. As Dr. David Wheatley of the

University of Southampton and Dr. Mark Gillings of the University of Leicester have written:

Although the human mind is a fine interpretative tool, if it is presented with a series of random dots it does have a tendency to suggest patterns even if none exist. For example, when presented with a distribution map or plot of stake holes from an excavation, the temptation to join the dots is almost irresistible.

David Wheatley & Mark Gillings, Spatial Technology and Archeology, The Archaeological

Applications of GIS 125 (Taylor & Francis 2002).

The patterns themselves cannot support inferences of six to eight large, elevated huts and connecting boardwalks, there is no evidence that the holes forming the patterns were made contemporaneously, there is little likelihood that the holes can be accurately dated, the Tequesta huts were likely small, not large, the weather conditions and climate in South Florida would have required building and rebuilding the huts and structures over and over again, and there was no need to elevate the structures because this area was never tidal. Appendix D details this evidence, including citations to scholarly books, publications, and testimony.

ii. History Of The Tequestas On The North Bank Of The Miami River

“Detailed historical information . . . is crucial to guide field archaeologists in locales which have been as seriously altered. . . .” 1 John W. Griffin, Archaeology & History of the

Granada Site, Excavations at the Granada Site, Chapter 2, 21 (Florida Dept. of State 1971).

The recorded history of the north bank of the Miami River while the Tequestas were still there shows a pattern of European building on the site, complicating the attribution of holes to the Tequestas. South Florida “is a region of thin soils, so thin that it is difficult to [even] plant

shrubs and small trees without the laborious job of digging into hard rock.” H.G. Multer & J.E.

Hoffmeister, Subaerial Laminated Crusts of the Florida Keys, 79 Geological Soc’y of Am.

Bulletin 183, 29 (1968).

The writings of the contemporary Spaniards in Florida support the alternative hypothesis: no large structures are described; no boardwalks are described; no large civilization is described; and no tidal flooding is described. The history describes the Tequesta not as agricultural, but rather as a nomadic culture that wandered among various locations in South Florida, making it doubtful that they would build large structures. Appendix E collects supporting sources, including those that have translations of primary sources written contemporaneously by Spanish missionaries and soldiers.

iii. History after The Tequesta Left The North Bank Of The Miami River

After the Tequesta left Florida in 1763, the trail of human occupation of this land continued for centuries. From 1763 until the late 1940s, plantation owners and their slaves; farmers; the U.S. Army, Navy and Marines; pirates, revolutionaries; thieves; and many others occupied the north bank of the Miami River. All occupants left their own marks on the land, and all dug holes in limestone under a relatively thin layer of loose soil. Appendix F details that history.

The most intensive use at this site began in 1895, when Henry Flagler began building the

Royal Palm Hotel. When completed, it was one of the largest hotels south of New York City at

700 feet long with 350 guest rooms. The scale of the construction staging was unprecedented.

The grounds of the property were heavily landscaped with gardens crossed with a variety of walks, straight and circular.

The Royal Palm Hotel transformed both the land and Miami into what would become a

metropolis. In connection with the construction of the Royal Palm, a very large “mound” or

“midden” that was the consequence of more than a thousand years of Tequesta occupation was spread over the entire site, used as fill for the hotel and grounds. That exercise made it impossible thereafter to determine from the disturbed “midden” where particular artifacts might have been placed or lost at some earlier time.

From the early 1950s until recently, the site was paved with asphalt and used for parking.

The only reason the holes still exist today is because the rock has been buried. Were it exposed, it would soon disintegrate in Miami’s hot, wet environment. See Appendix D.

c. Consensus about the Importance of the Southwest Corner and Northeast Corner Circles for the Tequesta Period

The parties have not abandoned the positions they took in front of the HEP Board, but they have modified them. In discussions with Carr, archaeologists, and others, MDM has realized the importance of preserving and displaying the Southwest Corner Circle. It is also willing to preserve, keep in place, display, and showcase the Northeast Corner Circle because it long ago committed to removing it and displaying it in the plaza based on expert advice about its importance. Carr has recognized, under his theory, “the circles that are most visually complex and lend themselves to public viewing are” the Southwest Corner Circle and the Northeast

Corner Circle. Ex. 18 at 1.

d. The Mediated Action Plan Presents an Opportunity to Tell the Full History of the North Bank of the Miami River

MDM, of course, will also stand by its commitment to dedicate a large area of the plaza to archaeological, historical, and educational displays and materials. MDM has hired a historian from Florida State University, who will gladly work with local archaeologists and historians, to thoroughly document the history of site to make certain that the ultimate interpretive and educational exhibits in the plaza inform correctly.

The Mediated Action Plan avoids minimizing the widely recognized importance of the other historical periods that left their mark on the site. No one disagrees that every period represented on this site has significant value. E.g., Ex. 1 at 39-40, 171, 191-92.

The serial and historically significant occupation also presents a practical problem of interpretation. All other alternatives before the HEP Board focused heavily on the Tequestas, which we agree should be given a prominent place, but that is not the only significant prehistory or history on the site. Many alternatives before the HEP Board also focused heavily on reconstruction by building up from the holes. Yet we cannot reconstruct portions of the Royal

Palm Hotel and its landscaping on top of the buildings erected by Julia Tuttle on top of the Fort

Dallas buildings on top of southern plantation buildings on top of Spanish forts on top of

Tequesta huts. And there are differing views about what the Tequesta huts looked like. A museum-style presentation of all of this information thus makes more sense. Under the

Mediated Action Plan, HistoryMiami and Dade Heritage Trust will consult on and participate in developing that presentation. It is important not only to educate, but to frankly acknowledge any ambiguities, uncertainties, or different points of view underlying any archaeological or historical conclusions. The Mediated Action Plan provides a perfect opportunity to do so.

e. The Mediated Action Plan Is Far Superior to the Outcome at the Miami Circle

Under the Mediated Action Plan, the private developer will continue to pay for archaeology, will pay for constructing exhibition spaces, will pay for preservation going forward, will pay for interpretation, and will showcase the archaeological, historical, and educational materials as part of a vibrant urban development. A comparison to the Miami Circle shows just how beneficial the Mediated Action Plan is for the City.

The Miami Circle cost taxpayers $27 million to buy the land from the developer. Ex. 19;

Ex. 20 . Since the acquisition, the government filled it with mud, and weeds have overgrown it.

Ex. 21; Ex. 22; Ex. 23; Ex. 24; Ex. 25; Ex. 26. By 2009, the Miami Herald reported “[t]here’s little to see [] other than a weedy plot of land and a circular depression where the main feature was buried in protective fill.” Ex. 27. In 2011, Miami Circle had opened as a park, but by 2012 the Miami Herald reported that it had become a dog park. Ex. 28; Ex. 29.

3. The Mediated Action Plan Promotes the Urban Planning Principles Outlined in Miami 21, the Environmental Principles Outlined in the City of Miami Climate Action Plan, and Economic Growth Downtown

The Mediated Action Plan allows development to go forward. Delaying the METsquare project would have catastrophic consequences and means that development may not be possible.

Indeed, one HEP Board member described that testimony as “very credible.” See p. 11, above.

Met 1, Met 2, and Met 3 would then be left without the anticipated movie theater, family restaurants, and retail. The failure to complete Met Miami would have broader, negative consequences for the City.

Met Miami will fulfill many of the hopes embodied in Miami 21. Miami 21 includes the development goals of a “transit-oriented, pedestrian-friendly focus” and “[r]ebuilding the City’s commercial Corridors to function as Mixed-Use, transit-oriented, walkable centers for adjacent

Residential Neighborhoods.” Ex. 30 2.1.2.b.1-2. Miami 21 states that “[t]he ordinary activities of daily living should occur within walking distance of most dwelling, allowing independence to those who do not drive.” Ex. 30 2.1.3.2.c.

New Urbanism at its best, a fully developed Met Miami would offer residences, office space, a grocery store, restaurants, retail, and a movie theater so that “[m]ost things an individual needs [are] within a 10-minute walk of home and work.” Ex. 31. It also would create a “mix of shops, offices, apartments, and homes on site.” Ex. 31. Along the lines of Miami 21’s

“Illustrated Principles of Good Planning,” the completed Met Miami project would transform a vacant parking lot into “walkable, urban alternatives.” Ex. 31. Miami 21 also recognizes that

“[m]ixed-use neighborhood centers create opportunities for jobs” and “create opportunities for transit to link nodes of neighborhood centers.” Ex. 31.

The City of Miami Climate Action Plan projects that Miami will add another 50,000 residents by 2020 and “[c]ompact, pedestrian friendly urban planning can contribute not only to decreased energy consumption but also provide sustainable communities for Miami’s future.”

Ex. 32 at ii. The City of Miami Climate Action Plan also recognizes that transportation creates about 40% of Miami’s greenhouse gas emissions, Ex. 32 at 10, and one of the three primary ways of reducing those emissions is by “reducing vehicle miles traveled.” Ex. 32 at 18, 29.

This Commission, in its last Modification for a Major Use Special Permit for Met Miami, found that the project “will have a favorable impact on the economy of the City,” the project

“will efficiently use public transportation facilities,” and the project “will favorably affect the need for people to find adequate housing reasonably accessible to their places of employment.”

Ex. 33 at 2-3. All of that is still true today and will integrate the archaeological, historical, and interpretive displays into a development that people will frequent for other reasons.

MDM is committed to the Mediated Action Plan, but, in the unlikely event that the

Commission refuses to adopt it, MDM must avoid any risk of waiving or otherwise compromising its legal claims, given the magnitude of harm that would follow.

III. In the Alternative, the HEP Board’s and the City’s Actions Equitably Estop Them from Preventing Development from Going Forward at METsquare

Equitable estoppel precludes a government entity from refusing to issue a permit where the property owner “(1) in good faith; (2) upon some act or omission by the government; (3) has made such a substantial change in position or has incurred such extensive obligations and

expenses that it would be highly inequitable and unjust to destroy the right he acquired.”4 The

Third District Court of Appeals has repeatedly applied equitable estoppel where no final permit has been issued.5 The Third District has also ruled that where the City has imposed certain conditions, and the applicant has satisfied those conditions, the City can be estopped from piling on more conditions. 6

The City has also long understood that a Tequesta village was located on the Met Miami site and the archaeological and historical significance of the area more generally. See

Appendices C-F; Ex. 1 at 14-15. The City’s eleven-year history of approvals, as well as the HEP

Board’s silence where it was required to act within 60 days, are certainly acts and omissions that

MDM has relied upon in good faith. See Appendix C.

MDM has made a substantial change in position and has incurred extensive obligations and expenses. In 2008, MDM completed Met 1, a 447-unit condominium tower with ground and second floor retail space of 30,000 square feet. Ex. 15 ¶ 11. In 2011, MDM finished Met 2, also known as the Wells Fargo Center, which houses the 313-room JW Marriott Marquis hotel, a premier restaurant, and substantial office space. Ex. 15 ¶ 11. MDM is building Met 3, with a

4 Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10, 16 (Fla. 1976) (citation omitted); see also O.P. Corp. v. Vill. of N. Palm Beach, 278 So. 2d 593, 594-95 (Fla. 1973); Sakolsky v. City of Coral Gables, 151 So. 2d 433, 435 (Fla. 1963); Castro v. Miami-Dade Cnty. Code Enforcement, 967 So. 2d 230, 233-34 (Fla. 3d DCA 2007).

5 Richbon, Inc. v. Miami-Dade Cnty., 791 So. 2d 505, 507-08 (Fla. 3d DCA 2001) (citation omitted) (zoning decisions); Bd. of Cnty. Comm’rs of Metro. Dade Cnty. v. Lutz, 314 So. 2d 815, 816 (Fla. 3d DCA 1975) (change in zoning); City of Miami v. 20th Century Club, Inc., 313 So. 2d 448, 448-49 (Fla. 3d DCA 1975) (conditional use zoning); City of Hialeah v. Allmand, 207 So. 2d 9, 9-10 (Fla. 3d DCA 1968) (building permit).

6 City of Miami v. Fla. E. Coast Ry. Co., 286 So. 2d 253, 254 (Fla. 3d DCA 1973) (per curiam) (citations omitted) (affirming summary judgment in favor of a landowner finding that “the City, having passed a resolution authorizing the issuance of a permit under certain conditions, was estopped to create new conditions after those created by the first resolution had been met”); Richbon, Inc., 791 So. 2d at 507-08 (original certificate permitted “adult entertainment” and later permit could not forbid it).

Whole Foods at street level under a 13-floor parking garage and a residential tower of 462 rental apartments. Ex. 15 ¶ 11. METsquare will contain 188 vacation units, a 1,700-seat movie-theater complex, and 41,000 square feet of ground-floor and second-floor restaurant space. Ex. 15 ¶ 11.

The components of all four towers are highly integrated, with some functions (such as parking and retail) in one tower that do not exist in its neighbors. Ex. 15 ¶ 11.

MDM has spent more than $3 million in archaeology-related expenses at Met Miami. Ex.

15 ¶ 13. Carr and his firm have completed preconstruction archaeological work for Met 1, Met

2, and Met 3, excavated METsquare almost entirely down to bedrock, and removed artifacts. Ex.

15 ¶ 12. Biscayne Engineering has used and is using state-of-the-art equipment to laser-scan the holes at METsquare and create three-dimensional mapping imagery that can be fully manipulated to study any portion of the holes. Ex. 15 ¶ 12. The May 2013 warrant required

MDM to develop engineering plans for METsquare, and it did so. Ex. 4 at 2; Ex. 1 at 78.

Barring MDM from developing at METsquare would be highly inequitable and unjust.

IV. In the Alternative, the HEP Board’s Decisions Violated Due Process

Both the United States and Florida Constitutions require due process of law. U.S. Const.,

Amend XIV; Fla. Const. Art. 1, § 9. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Matthews v.

Eldridge, 424 U.S. 319, 333 (1976) (citation omitted) (internal quotation marks omitted). In determining whether a violation of procedural due process has occurred, the courts will balance

(1) the private interest that will be affected by the official actions; (2) the government’s interest; and (3) the risk of an erroneous deprivation of such interest through the procedures used and the

probable value, if any, of additional or substitute procedural safeguards. Id. at 340-47.7

Procedural due process constrains municipalities’ zoning decisions. Villas of Jackson, Ltd. v.

Leon Co., 121 F.3d 610, 615 (11th Cir. 1997).

The private interests here outweigh any interest articulated by the HEP Board, as explained at length above and below. See pp. 9-11, 38-41, above and below; see Appendices D-

E. The procedures adopted were plainly unconstitutional, and the many following deficiencies could have been easily remedied at the time:

A. The HEP Board Members Made Comments Pre-Judging the Dispute

“Ex parte communications are inherently improper and anathema to quasi-judicial proceedings.” Jennings v. Dade Cnty., 589 So. 2d 1337, 1341 (Fla. 3d DCA 1991). Alleged ex parte communications are presumed prejudicial until the defendant proves the contrary by competent evidence. Id. at 1341. In the wake of Jennings, the Florida Legislature passed a statute providing that disclosure of an ex parte communication eliminates the presumption of prejudice. Fla. Stat. § 286.0115. And, of course, administrative officials sitting in a quasi- judicial capacity have an independent duty to remain impartial and avoid pre-judging the issues that come before them. See Ridgewood Props., Inc. v. Dep’t of Cmty. Affairs, 562 So. 2d 322,

323 (Fla. 1990); Seminole Entm’t, Inc. v. City of Casselberry, 811 So. 2d 693, 696-97 (Fla. 5th

DCA 2001) (citation omitted).

The HEP Board members made many comments to the media and press prior to the hearing pre-judging the issues that would be before them. Chairperson William Hopper, Vice

Chairperson Gerald Marston, and Member Timothy Barber all made statements to the media pre-

7 The Supreme Court of Florida also finds these three factors determine whether a process is constitutionally adequate. E.g., Keys Citizens For Responsible Gov’t, Inc. v. Florida Keys Aqueduct Auth., 795 So. 2d 940, 948-49 (Fla. 2001) (citations omitted).

judging the issues that would come before them.8 Chairperson Hopper did not disclose any of those interviews at the February 14, 2014 HEP Board meeting. Marston disclosed at the hearing that he had a telephone conversation with a reporter from the Wall Street Journal and an in- person interview with a reporter from the Miami Herald. Ex. 1 at 6. Barber was not present on

February 14, 2014, did not disclose any communications to the press, and did not vote.

Chairperson Hopper did not disclose his ex parte communications, meaning that the

Jennings presumption of prejudice will apply. In evaluating the prejudicial effect of any of the ex parte communications, the following criteria are relevant:

[w]hether, as a result of improper ex parte communications, the agency's decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either as to an innocent party or to the public interest that the agency was obliged to protect. In making this determination, a number of considerations may be relevant: the gravity of the ex parte communications; whether the contacts may have influenced the agency's ultimate decision; whether the party making the improper contacts benefited from the agency's ultimate decision; whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond; and whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose. Since the principal concerns of the court are the integrity of the process and the fairness of the result, mechanical rules have little place in a judicial decision whether to vacate avoidable agency proceeding. Instead, any such decision must of necessity be an exercise of equitable discretion.

Jennings, 589 So. 2d at 1341 (citing Prof’l Air Traffic Controllers Org. v. Fed. Labor Relations

Auth., 685 F.2d 547, 564–65 (D.C.Cir.1982)) (emphasis added). The statements themselves, as well as the other unfair processes cited below show irrevocable taint and strongly intimate an influence on the agency’s ultimate decision.

B. Most HEP Board Members Did Not Read MDM’s Pre-Hearing Written Submission

On Thursday, February 6, 2014 at 6:04 p.m., the City Preservation Officer sent a 97-page draft case studies document to MDM’s counsel. Ex. 12. On February 7, 2014 at 4:16 p.m., the

8 Ex. 34; Ex. 7; Ex. 35; Ex. 36; Ex. 37; Ex. 38.

City Preservation Officer instructed MDM’s counsel that “[i]f you would like to distribute your response [to the staff’s case studies] as a separate submittal you may send it to the working group and to each Board member individually.” Ex. 39. On Friday, February 7, 2014 at 6:17 p.m. and on Friday, February 7, 2014, MDM’s counsel emailed a pre-hearing submission totaling sixteen pages with attachments and a hardship affidavit totaling fourteen pages with attachments as instructed. Ex. 57.

At the HEP Board meeting, however, only five HEP Board members acknowledged receiving MDM’s written pre-hearing submission, and Board members Marston and Hugh Ryan volunteered that they did not read them. Ex. 1 at 6-7. The failure to acknowledge receipt of this submission after MDM’s counsel had followed a procedure outlined by the City, as well as the refusal of at least two Board members to read the submissions, was inconsistent with due process.

C. The HEP Board, Without Advance Notice, Severely Limited the Amount of Time That MDM Had to Present its Case

On Tuesday, February 11, 2014, MDM’s counsel met with two Assistant City Attorneys to discuss the procedure for the February 14, 2014 hearing. At that meeting, MDM’s counsel identified three witnesses who would need to be examined and cross-examined at the hearing.

“In a quasi-judicial proceeding, the parties must be able to present evidence, cross- examine witnesses, and be informed of all the facts upon which the Commission acts.” Jennings,

589 So. 2d at 1340. The presiding official should be “free from prejudgment” and if such official denies “the right to challenge, through cross-examination, the testimony of the principal witness against” the applicant, it may “reflect a bias so pervasive as to have rendered the proceedings violative of the basic fairness component of due process.” Seminole Entm’t, , 811

So. 2d at 696-97 (citation omitted). “The parties [in a quasi-judicial proceeding] must be

accorded the right to confront and cross-examine the witnesses against them, and be reasonably heard on the contentions urged by them with respect to the action to be taken by the agency.”

Deel Motors, Inc. v. Dep’t of Commerce, 252 So. 2d 389, 394 (Fla. 1st DCA 1971) (emphasis added).

On February 14, 2014, at the outset of the meeting, Chairperson Hopper — the same

Chairperson who had made prior public comments to the Biscayne Times and on NPR — informed everyone that MDM’s presentation would be limited to one hour. Ex. 1 at 5. After

MDM’s counsel spent a brief period of time questioning Carr, who had worked at the Met Miami site for more than ten years, the Chairperson agreed to give MDM an additional thirty minutes.

Ex. 1 at 52. The Chairperson enforced that time limit of one and a half hours for MDM to present evidence, testimony, and argument. E.g., Ex. 1 at 85, 115.

In Kupke v. Orange County, at a hearing in which a farmer was fined for operating an unauthorized junkyard, the County was permitted to present as many witnesses as it wished, but the Code Enforcement Board limited what the farmer could offer into evidence and even refused to permit him to present testimony from other farmers. 838 So. 2d 598, 599 (Fla. 5th DCA

2003). The Fifth District Court of Appeal quashed the decision of the Board, concluding that

“[t]his denial of an opportunity to present evidence violated [the farmer’s] due process rights.” Id.

The time limit imposed by the Chairperson was not only unreasonable, but was woefully inadequate for a presentation about a development project that cost about $1 billion and an archaeological dig that spanned over a decade. Springing this one-hour deadline on MDM’s

counsel at the beginning of the hearing was inconsistent with due process.9

D. The HEP Board Did Not and Could Not Identify any Evidence Supporting its Exercise of Jurisdiction or its Decisions

As MDM argued prior to and at the February 14, 2014 hearing, the HEP Board lacked jurisdiction because it blew the 60-day deadline and because it had before it undisputed and indisputable evidence of substantial economic hardship.

The HEP Board did not even address its own jurisdiction, let alone find a supportable basis for exercising it. Indeed, only one HEP Board member made any statement about economic hardship during the Board’s discussion, and she described the testimony articulating the hardship as

“very credible.” See p. 11, above. Acting without the authority to act is inconsistent with due process, but acting without even saying it had the authority to act was even worse.

The HEP Board also ignored the governing standards set forth in the United States

Constitution, the Florida Constitution, Florida case law, Florida statutes, the Historic

Preservation Chapter, prior resolutions, and the warrant. It did not and could not tether its decision to any facts or law. Such a decision is inconsistent with due process.10

9 HEP Board members showed hostility towards the limited cross-examination that was permitted. A HEP Board member attempted to diminish the importance of it by questioning MDM’s counsel about whether he had “an advanced degree in archaeology,” “a degree in structural engineering,” “a degree or education in prehistoric building structures,” and described counsel’s questioning, summary, and argument as “testifying.” Ex. 1 at 197-200. Ultimately, another Board member intervened and suggested that questions be directed towards the testifying witness, rather than the lawyer. Ex. 1 at 204.

10 Although written factual findings are not explicitly required under Florida law, see Bd. of Cnty. Comm’rs of Brevard Cnty. v. Snyder, 627 So. 2d 469, 476 (Fla. 1993), the HEP Board’s decision is reviewed by this Commission de novo and, if reviewed by the courts, must be “supported by substantial competent evidence” found in the record, see Broward Cnty. v. G.B.V. Int’l Ltd., 787 So. 2d 838, 846 (Fla. 2001). The better view, as expressed by a dissenting author in responding the Florida Supreme Court’s query on the issue, under both Florida and federal law, is that such findings are required. Memorandum to Rules of Judicial Administration Committee of the Florida Bar from Ad Hoc Committee on Broward v. G.B.V., Environmental Land Use Law Section of the Florida Bar dated Nov. 29, 2001, at 4-9 (T.R. Hainline, dissenting).

E. The HEP Board Attempted to Reserve Perpetual Jurisdiction

The United States Supreme Court has recognized that “[g]overnment authorities, of course, may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision.” Palazzolo v. Rhode Island, 533 U.S. 606, 621 (2001). “A property owner is . . . not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain this determination.” MacDonald Sommer & Frates v. Yolo Co., 477 U.S. 340,

350 n.7 (1986).

The HEP Board’s direction to initiate the archaeological designation process is such a repetitive or unfair land-use procedure. The Board requested that staff prepare, “at the earliest possible time,” a preliminary report to designate the METsquare site as an archaeological site.

Ex. 1 at 326; Ex. 40. Yet the site is already designated as part of an archaeological conservation zone and was thus already subject to the certificate of appropriateness requirement. For precisely that reason, at that very meeting, the HEP Board considered the archaeological, historical, and educational significance of the site as well as development alternatives. The

Board nonetheless launched and attempted to accelerate the designation process in an attempt to find a hook for a new certificate of appropriateness, perhaps to try to avoid fundamental jurisdictional defects raised at the hearing. That attempt to reserve jurisdiction is inconsistent with due process. It is black letter law that appellate proceedings generally divest lower tribunals of jurisdiction over related issues during the pendency of the appeal.11 At the very least, it shows

11 Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam) (a properly filed notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal”); Stoppa v. Sussco, Inc., 943 So. 2d 309, 314 (Fla. 3d DCA 2006) (citation omitted) (a trial court cannot take any action that would “affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal”); accord United States v. Diveroli, 729 F.3d 1339, 1341 (11th Cir. 2013); Doe v. Bush, 261 F.3d 1037, 1064-65 (11th Cir. 2001); Yost v. Fiallos, 64

a need for the Commission to make clear, as the Mediated Action Plan does, that the HEP Board may not require a new certificate of appropriateness to circumvent any ruling on this appeal.

F. A HEP Board Member Made a Subsequent Public Statement and Another Requested to Testify in Front of the City Commission

Not only did HEP Board members make improper public statements prior to the

February 14, 2014 hearing showing that they had pre-judged the outcome, but they continued to do so during the pendency of this appeal. On March 4, 2014, the Miami Herald paraphrased

Chairperson Hopper as saying “he could not recall another instance where the board was precluded by the city from taking preliminary steps to consider historic designation of a site — one of its fundamental discretionary powers.” Ex. 41.

The HEP Board members should not have spoken to the media about the pending appeal or any related issue. Such statements are not contained in any sort of public document, do not contain citations, may not even be accurately quoted or paraphrased, and are not subject to any sort of formal response by MDM. Florida’s Code of Judicial Conduct, like most all others, prohibits judges from “mak[ing] any public comment that might reasonably be expected to affect

[a case’s] outcome or impair [] fairness.” Fla. Code Judicial Conduct Canon 3(B)(9). The Fifth

District Court of Appeal has found that a violation of this judicial canon by an administrative agency could support a claim for violation of due process. See Fla. Water Servs. Corp. v.

Robinson, 856 So. 2d 1035, 1040-41 (Fla. 5th DCA 2003).

At the March 4, 2014 hearing, a HEP Board member told the Assistant City Attorney that he thought “it would really be appropriate for us to be able to appear and to really voice our strong support” of their resolutions in front of the City Commission. Ex. 42 at 7. Such

So. 3d 699, 701 (Fla. 3d DCA 2011); Liberman v. Ryne, 248 So. 2d 242, 244 (Fla. 3d DCA 1971).

testimony from the HEP Board members would, of course, make their previous insufficiently reasoned decision a moving target, see Stein v. Prof’l Ctr., S.A., 666 So. 2d 264, 265-66 (Fla. 3d

DCA 1996), and violate due process.12 On March 4, 2014, the Assistant City Attorney responded that she would research the issue, and she has since indicated that the HEP Board members will not appear at the Commission’s hearing.

The HEP Board member’s comment on March 4, 2014 shows that the HEP Board’s decision was little more than rote exercise. Not only does a member, after having had the opportunity to articulate the basis for his decision, believe that he should be able to bolster it on appeal. He believes that it is “really [] appropriate” to do so.13

V. In the Alternative, The HEP Board’s Actions Constitute a Taking without Compensation

The HEP Board’s actions constitute a taking that would require paying compensation

12 “An impartial decision maker is a basic constituent of due process.” Ridgewood Props., Inc. v. Dep’t of Cmty. Affairs, 562 So. 2d 322, 323 (Fla. 1990) (citation omitted). The Florida Supreme Court has found a due process violation where an administrative agency secretary served as witness and as fact-finder in the same proceeding. Id. The court found in the role as fact finder, the secretary “necessarily passed upon his own evidence . . . he had to conclude that his own testimony was competent and substantial. Even with the best of intentions, this can hardly be characterized as an unbiased critical review.” Id.; see also Cherry Commc’ns v. Deason, 652 So. 2d 803, 805 (Fla. 1995). “[I]n our adversarial system of justice, which places a premium on the fairness of the judicial or quasi-judicial procedure, the decisionmaker must not allow one side in the dispute to have a special advantage in influencing the decision.” Cherry, 652 So. 2d at 805. If a HEP Board member were to testify, it would plainly violate due process. It is telling that a Board member asked to do so.

13 Metro. Dade Cnty. v. P.J. Birds, Inc., 654 So. 2d 170, 179-80 (3d DCA 1995), where the Third District rejected a due process challenge to the designation of Parrot Jungle as a historic site is inapposite. The Third District did not consider most of the arguments made in the text, such as past Board actions authorizing use, statements by members pre-judging the outcome, artificial limits on the landowner’s ability to present its case, a failure to find jurisdiction, or an attempt to retain jurisdiction indefinitely. And unlike this case, where the HEP Board did not make any findings tethered to the governing legal framework, the Third District found that the County Historic Preservation Board had properly applied an ordinance, which the owner had not identified any “infirmity” with. Id. at 179.

under several lines of governing United States Supreme Court precedent.

A. First Principles of Takings Jurisprudence

The Fifth Amendment to the United States Constitution provides: “[N]or shall private property be taken for public use, without just compensation.” U.S. Const., Amend. V. The

Florida Constitution provides: “No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner or secured by deposit in the registry of the court and available to the owner.” Fla. Const., Art. X, § 6(a). The Florida Supreme Court has interpreted the meaning of the two takings clauses to be “similar,” and Florida courts frequently rely on federal precedent to interpret the Florida Constitution’s Takings Clause.14

As United States Supreme Court Justice Oliver Wendell Holmes explained, when the

Takings Clause’s

seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States. . . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.

Pa. Coal Co. v. Mahon, 260 U.S. 393, 415-16 (1922) (emphasis added).

And as Justice Hugo Black wrote:

The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in fairness and justice, should be borne by the public as a whole.

Armstrong v. United States, 364 U.S. 40, 49 (1960) (emphasis added). The Florida Supreme

Court has elaborated that an action supposedly taken for the “public benefit” is more, not less,

14 See, e.g., St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220, 1222 (Fla. 2012), rev’d on other grounds, Koontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct. 2586 (2013); Joint Ventures, Inc. v. Dep’t of Transp., 563 So. 2d 622, 624 & n.8 (Fla. 1990).

likely to be a taking. Dep’t of Agriculture and Cons. Servs. v. Mid-Florida Growers, 521 So. 2d

101, 103 (Fla. 1988) (citation omitted).

The Florida Supreme Court has also noted that the need for full compensation is greatest in cases imposing the largest burdens on private property owners:

[T]he constitutional guarantee does not extend only to cases where the taking is cheap or easy. Indeed, the need for compensation is greatest where the loss is greatest. If one must make a choice between the government’s convenience and the citizen’s constitutional rights, the conclusion should not be much in doubt.

Palm Beach Cnty. v. Cove Club Investors Ltd., 734 So. 2d 379, 389 (Fla. 1999) (emphasis added)

(quoting William B. Stoebuck, Nontrespassory Takings in Eminent Domain 135 (1977)). In light of these first principles, it is unsurprising that the HEP Board’s actions qualify as a taking requiring compensation.

B. The Scope of the HEP Board’s Decisions Addressing Action Plans

At the February 14, 2014 hearing, the Board reneged on the action plan by a vote of seven to one. Ex. 1 at 320; see also Ex. 40. Immediately after repudiating the action plan, one member of the HEP Board moved to “direct[] the applicant to come back with a new plan to fully preserve the site, period.” Ex. 1 at 322 (emphasis added). An Assistant City Attorney intervened and said that the Board could not “order or compel” but only “request.” Ex. 1 at 322.

In a testy colloquy with another Board member, the movant said that “[t]he motion clearly addresses, the whole site, whatever is there, should be preserved.” Ex. 1 at 323 (emphasis added). The movant said he would somehow permit “development” but that “we don’t want them to go in and destroy the bedrock.” Ex. 1 at 325. The final resolutions received three weeks after the hearing adds qualifiers into the second resolution that are not found in the transcript but still reneges on the action plain in favor of a “revised action plan” “that takes into consideration”

“full preservation” of the “the archaeological site elements uncovered.” Ex. 1.

The following picture shows that preservation of every hole in the bedrock, as a practical matter, precludes the development previously authorized by the HEP Board and City

Commission:

C. The HEP Board’s Decisions Require a Physical Occupation, Which Is a Per Se Taking That Requires Compensation

The HEP Board’s decisions require completely reconfiguring the building at METsquare, require reserving certain spaces for preservation, interpretative displays, or exhibits, and require that MDM not build commercial space on at least some portions of the property.

The United States Supreme Court, the Florida Supreme Court, and the Eleventh Circuit

have established the “invariable rule[]” and “bright line[]” that “when the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the future owners.” Ark. Game and Fish Comm’n v. United States, 133 S. Ct. 511,

518 (2012) (temporary flooding constituted taking) (quoting Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Reg. Planning Agency, 535 U.S. 302, 322 (2002)).

The Supreme Court has explained:

The modern significance of public occupation is that courts, while they sometimes do hold nontrespassory injuries compensable, never deny compensation for a physical takeover. The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings about that its agents, or the public at large, “regularly” use, or “permanently” occupy, [the] space or thing which theretofore was understood to be under private ownership.

Loretto v. Teleprompter Manhatten CATV Corp.,458 U.S. 419, 428 n.5 (1982) (quoting Frank

Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just

Compensation’ Law, 80 Harv. L. Rev. 1165, 1184 (1967)).15

This is true “regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.” Brown, 538 U.S. at 233. “[P]ermanant occupations of land . . . are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land.” Loretto, 458 U.S. at 428 n.5 (1982)

(emphasis added) (collecting cases). “[P]hysical occupation” “is perhaps the most serious form of invasion of an owner’s property interest” because “the government does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a slice of

15 See also, e.g., Brown v. Legal Foundation of Washington, 538 U.S. 216, 235 (2003) (transfer of interest on clients’ funds in lawyers’ trust accounts); Loretto, 458 U.S. at 421 (New York law requiring landlord to permit a cable television company to install cable facilities upon property was a taking); Storer Cable T.V. of Florida v. Summerwinds Apartments Assocs., Ltd., 493 So. 2d 417, 419-20 (Fla. 1986) (following Loretto); Gulf Power Co. v. United States, 187 F.3d 1324, 1328-30 (11th Cir. 1999) (applying Loretto to find that mandatory attachment provisions of the Pole Attachment Act governing electrical poles constituted taking but provided process for adequate compensation).

every strand.” Id. at 435. On that piece of the property, the government abrogates the owner’s right to possess, to exclude the occupier from possession, to control the use of that piece, and to profit from that piece, which “will ordinarily empty the right of any value.” Id. at 435-36.

The United States Supreme Court has repeatedly recognized that dedicating a portion of a landowner’s property as a public park, greenspace, or right of way constitutes such a per se taking. In Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979), the Supreme Court held that if the federal government wanted to convert a portion of a landowner’s property that included

“Kuapa Pond” into “a public aquatic park,” it must “invok[e] its eminent domain power and pay[] just compensation.” The Supreme Court repeated this view in two unconstitutional exaction cases discussed below.16

The HEP Board reneged on the action plan to which it and the City had previously agreed in favor of alternatives that all required the dedication of additional space for preservation, interpretation, and exhibition. All of the alternatives contemplated taking at least a portion of the property for a public space and deprived MDM of the right to possess, to exclude the non-paying public from possession, to control the use of, and to profit from those portions of the property, emptying them of any value.

D. If the HEP Board or the City Commission Deprives MDM’s Owners of All Economic Use, That Will Be a Per Se Taking Requiring Full Compensation

As explained above, pp. 32-33, the HEP Board repudiated the action plan in favor of fully preserving every hole in the bedrock.

“[W]here regulation denies all economically beneficial or productive use of land” it is

16 See Dolan v. Tigard, 512 U.S. 374, 384 (1994) (noting that “had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use . . . a taking would have occurred”); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831 (1987) (“Had California simply required the Nollan’s to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach . . . we have no doubt that there would have been a taking.”).

“compensable without case-specific inquiry.” Lucas v. S.C. Coastal Council, 505 U.S. 1003,

1015 (1992). The Supreme Court has ruled that a change to the South Carolina Code that barred a landowner “from erecting any permanent habitable structures on his two parcels” forced him

“to leave his property economically idle” and caused him to “suffer[] a taking.” Id. at 1007,

1019. The Florida Supreme Court has similarly ruled that an ordinance that restricted a landowner’s useful lot area to seventeen feet, “which was not sufficient to permit any use whatsoever of the property for which it was suited,” constituted a taking. Ocean Villa

Apartments v. City of Fort Lauderdale, 70 So. 2d 901, 901 (Fla. 1954).

As shown in the map of holes above, p. 33, restricting MDM to the portion of the property that the City has not argued has archaeological or historical significance would effectively preclude development of the property. It would be a per se taking.

E. In the Alternative, the HEP Board’s Actions Are a Taking under the Three- Prong Test Established by Penn Station

If there is no physical occupation or elimination of economic value, courts weigh and balance the following criteria to determine if a taking has occurred: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment backed expectations; and (3) the character of the government action. Pa.Central

Transport. Co. v. City of N.Y., 438 U.S. 104, 124 (1978). These are “essentially ad hoc, factual inquiries.” Id. at 124. Turning to each:

The economic impact is enormous. As explained above, pp. 9-11, delay would permit termination under the leases being finalized for METsquare and “basically destroy the possibility of developing anything here.” That development is valued at over $121 million.

MDM has distinct investment backed expectations. MDM obtained a series of permits and HEP Board resolutions allowing it to go forward at each step along the way before

dedicating additional funds. See Appendix C. MDM has completed construction of the interrelated projects at Met 1 and Met 3 and made substantial progress on the construction at Met

2. Ex. 15 ¶ 11. The May 2013 warrant required MDM to develop engineering plans, and it did so. Ex. 4 at 2; Ex. 1 at 78. MDM has spent over $3 million on archaeology alone. Ex. 15 ¶ 13.

And, as explained above, MDM also reasonably relied on the HEP Board’s silence about any additional required mitigation.

Finally, the character of the government action here is plainly intended to confer a public benefit, even if it will not in fact do so. Every communication from the City Preservation Office, the HEP Board members, and Miami Dade County has described the benefits that they seek to preserve as archaeological, historical, or educational. All of these are public benefits.

The HEP Board could point to the outcome in Penn Central, where the Supreme Court found no taking based on the Landmarks Preservation Commission’s refusal to permit the construction of a 55-story office building on top of Grand Central Terminal. The Court emphasized there, however, that (1) the property would continue to be used precisely as it had been used “for the past 65 years” and therefore “does not interfere with” the landowner’s

“primary expectations”; (2) the landowner could still earn a reasonable return because the New

York City regulatory regime transferred the air rights to eight other parcels the landowner had in

Manhattan for the construction of office buildings; and (3) the New York City Commission left open the possibility of some development at Grand Central Terminal. Id. at 132, 136-37. The

HEP Board here seeks to radically transform the property to a use for which it has never been used, has not offered anything of value to the landowner in exchange, and would foreclose any

possibility of development.17

F. Full Compensation Is a Staggering Amount

The United States Supreme Court “has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking contemporaneously paid in money.’” United States v. 50 Acres of Land, 469 U.S. 24, 454 (1984) (citation omitted).

The Florida Constitution uses the term “full compensation,” rather than “just compensation,” but the Florida Supreme Court has similarly measured it as the “fair market value of the property at the time of the taking.” Dep’t of Agriculture and Cons. Servs. v. Mid-Florida Growers, Inc., 570

So. 2d 892 (Fla. 1990).

As explained, total payments for executed letters of intent for the purchase of the

METsquare space and the lease of the Space in Met 1 contingent on the purchase of additional space in METsquare will be at least $121 million. Ex. 15 ¶ 9. Appraisals done in 2013 peg the total value at completion and stabilization for METsquare at over $144 million and the as-is value of the property in 2013 at over $23 million. Ex. 15 ¶ 8. Although we cannot state a final amount of damages until the City Commission resolves what is to be done with the property, the total value of the developed property is over $121 million.

17 The United States Court of Appeals for the Fifth Circuit’s decision in Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), which rejected a takings claim when the City of New Orleans refused to permit demolition of a building in the French Quarter pre-dates many important United States Supreme Court decisions. Moreover, the Fifth Circuit in that case made very clear that “[i]t may be that, in some set of circumstances, the expense of maintenance under the Ordinance were the city to exact compliance would be so unreasonable as to constitute a taking.” Id. at 1067. Similarly, Judge Gergsten’s concurrence in Estate of Tripett v. City of Miami, 645 So. 2d 533, 534 (3d DCA 1994) (citation omitted), found that designating a building historic did not constitute a taking, in part, because “[u]pon 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.’” Here, of course, the HEP Board blatantly exceeded that limit on their power.

VI. In the Alternative, the HEP Board’s Actions Violate the Bert Harris Act

The Bert Harris Act creates a cause of action “when a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property” and entitles the property owner “to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of the government.” Fla. Stat. § 70.001(2). An “inordinate burden” includes a direct restriction or limitation on real property “such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use” or the property owner is left with “unreasonable” uses such “that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.” Fla. Stat. § 70.001(3)(e)(1).

An “existing use” includes “reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.” Fla. Stat. § 70.001(3)(b)(2). A “vested right” “is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by applying the statutory law of this state.” Fla. Stat. §

70.001(3)(b)(2). If the court finds for the property owner on liability, the property owner is entitled to “the loss in value due to the inordinate burden to the real property.” Fla. Stat. §

70.001(6)(b).

Florida’s Legislature passed the Bert Harris Act to provide a remedy to landowners who could not show a taking under the Florida or United States Constitutions. Fla. Stat. § 70.001(1).

All of the reasons that the HEP Board’s actions constitute a taking and violate the principles of equitable estoppel apply with even greater force to support a Bert Harris claim. And, again,

although we cannot calculate the damages at this point, they would be staggering.

VII. In the Alternative, the HEP Board’s Actions Impose an Unconstitutional Condition That Requires Full Compensation

The HEP Board’s actions are a taking, not an unconstitutional condition or exaction because it is undisputed that MDM owned the METsquare property, Ex. 15 ¶ 2, and the City and the HEP Board granted rights to develop that property through permits, resolutions, and warrants, see Appendix C.

Even if the HEP Board’s February 14, 2014 actions could be viewed as imposing additional conditions on prior approvals (they cannot be), they still violate the United States and

Florida Constitutions. Under governing United States Supreme Court precedent, the HEP Board or City must show: (1) “an ‘essential nexus’ between the permit condition and a legitimate interest of government”; and (2) “there is rough proportionality between the condition requiring the property owner to dedicate a portion of the property to public use and the impact of the proposed development on governmental and social interests.”18 The Supreme Court has struck down permit conditions requiring dedication of a portion of a landowner’s beachfront property for public use and granting a public walkway.19

The HEP Board’s actions fail to satisfy the standard for unconstitutional conditions and exactions. As shown above and below, pp. 11-20, 41, all of the HEP Board’s alternatives for

METsquare are inferior from an archaeological, historical, and educational perspective: they certainly do not have an “essential nexus” to these goals. As also is shown above and below, pp. 9-20, 38-39, 41, the burden on MDM would be enormous while the citizens of Miami have

18 Ronald D. Rotunda and John E. Nowak, 2 Treatise on Const. L. § 15.12(b)(vii) (citing Dolan v. City of Tigard, 512 U.S. 374 (1994)).

19 Dolan, 512 U.S. at 394-95 (pathway for bicycles and pedestrians); Nollan v. California Coastal Comm’n, 483 U.S. 825, 841-42 (1987) (public access to beach).

been unwilling to pay anything to advance these goals at the Miami Circle site since its purchase by the government. There is nothing close to “rough proportionality” here.

VIII. In the Alternative, the Historic Preservation Chapter and City Policies Require Reversal

The Board’s February 14, 2014 decision reneging on the action plan in favor of full preservation must be reversed. Outside of the Southwest Corner Circle and possibly the Northeast

Corner Circle, the holes are a muddle and are certainly not of such “exceptional importance” to justify full preservation of every hole on MDM’s property. The HEP Board certainly did not and could not identify evidence supporting its decisions, even in light of the action plan that MDM represented to it and to which it had previously agreed. The HEP Board’s proposed preservation would also unreasonably restrict the primary use of a property in the midst of downtown Miami.

And the Board’s decisions also hinder the enhancement of downtown, property values, and hurt

Miami’s economy. See pp. 11-20, above.

The City will lose much that the Historic Preservation Chapter recognizes has value if the

HEP Board’s decision is upheld.

CONCLUSION

The HEP Board did not even attempt to offer any justification for its actions and could not do so. The Mediated Action Plan is superior to every alternative, on every metric. The City

Commission should approve the Mediated Action Plan.

41 March 24, 2014 Respectfully submitted,

STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON,P.A. Museum Tower, Suite 2200 150 West Flagler Street Miami, Florida 33130 Telephone:(305) 789-3200 Facsimile:(305) 789-3395

By: C EENE E. STEARNS Florida Bar No. 149335 [email protected] GORDON M. MEAD,JR. Florida Bar No. 049896 [email protected]

WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE,P.L. 2525 Ponce de Leon Blvd., Suite 700 Coral Gables, FL 33134 Anthony L. Recio Florida Bar No. 520152

Attorneysfor MDM

Appendix A — Renderings

A-1

A-2

A-3

A-4

Appendix B — Agreement Reached at Mediation and Mediated Action Plan

B-1

B-2

B-3

B-4

B-5

B-6

B-7

B-8

B-9

B-10

B-11

B-12

B-13

B-14

Diagram A

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The parties initialed a diagram at the end of the mediation, and each party has a copy. The Diagrams above and below are intended to capture that agreement, and in the event of any inconsistencies the version initialed at the mediation will control.

Regardless of how the above diagram might be interpreted, MDM will preserve and display the entire Northeast Corner Circle, including covering the entire circle with transparent glass-type flooring, if it receives the approval of any necessary setbacks and encroachments. If it does not receive such setbacks and encroachments, it will preserve and display as much as possible.

B-16

Diagram B

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B-18

Diagram C

B-19

Although Diagram C depicts floor-to-ceiling transparent glass-type material on the interior, retail space intended for a restaurant, the Mediated Action Plan does not require that material to extend from floor to ceiling and it may not. There may be a lower ceiling treatment in the restaurant, but such treatment shall not interfere with the view from the inside or outside.

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Diagram D

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Appendix C — History of Permitting, Resolutions, Reports, Notices, and HEP Board Actions

On November 17, 1998, the City Commission granted a Major Use Special Permit for the development of the property including METsquare. Ex. 43.

In July 2002, Robert Carr, the archaeologist the City had selected, issued a report that went to the HEP Board and sketched out a basic history of the north bank of the Miami River, reported finding artifacts from those various historical periods based on test bores, and discussed possible, future archaeological finds. Ex. 58.

On November 19, 2002, the HEP Board passed Resolution No. 2002-68 recommending approval of an application for a certificate of appropriateness for ground disturbing activity, which states:

The Developer agrees to contact the County Archaeologist, relevant agencies, and the City of Miami Preservation Officer within 48 hours of the day of a significant discovery with written notice of that discovery. The Historic and Environmental Preservation Board agrees to . . . act upon any notice of a significant discovery within 60 days of written notification by the developer.

Ex. 2 at 2 (all capital letters in original; emphasis added). The City Commission then granted three modifications to the Major Use Special Permit for the MDM properties that incorporated

HEP Board Resolution No. 2002-68. Ex. 44; Ex. 45; Ex. 46.

On June 15, 2004, HEP Board Resolution No. HEPB 2004-48 added additional conditions requiring re-interment of human remains, continued cooperation with the staff and

HEP Board, and that “[t]he final plans for the interpretive elements of the project shall be brought back to the Board for approval.” Ex. 3 (emphasis added).

Starting in December 2004, Robert Carr sent the following written notices to the City with some variation of “notice of significant discovery” in every subject line, sometimes repeating it in the body:

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• December 7, 2004: “A second discovery is an area of concentric circular post holes in Parcel B possibly representing a Tequesta house. Although only a part of the feature has been uncovered, based on the feature’s arc, it appears to be about 36 feet in diameter. A third discovery of potential significance is a linear alignment of square post holes . . . .” Ex. 16.

• April 30, 2012: “Foundations of portions of the southern elevation of the Royal Palm Hote[l] have been uncovered including brick piers supporting the hotel’s elevated walkway . . . [A] circle of postholes cut in the bedrock occurs in the southwest corner of the parcel. The circle measures 38 feet in diameter and is of unknown age.” Ex. 47.

• April 3, 2013: “This email is being sent to provide a notice of a significant archaeological discovery . . . . [T]he archaeological team has uncovered in excess of over 100 post holes cut into the limestone bedrock that are part of the footprint of a prehistoric structure. Although the feature has not been fully exposed it appears to have a diameter of about 40 feet.” Ex. 48.

• May 21, 2013: “This email is provided as notice that we are now uncovering and documenting a third circular feature at [METsquare]” that is “about 38 feet in diameter.” Ex. 49.

In 2005 and 2006, the City Commission then approved two separate modifications to the

Major Use Special Permit for Met Miami: both recognized the continued validity of HEP Board

Resolution No. HEPB 2004-48, and the second recognized that the HEP Board had recommended approval. Ex. 33 at 1; Ex. 50 at 1.

On May 21, 2013, the City Planning and Zoning Department issued Warrant No. 13-0013 regarding METsquare, which stated in part:

[T]he Historic Preservation Office reviewed and approved with condition the proposed project. . . .

All conditions of Resolution HEPB-2002-68 and HEPB-2004-48 shall be followed, in particular: . . .

a) The Miami One Archaeological Management Plan proffered by the applicant and detailed in a letter from Robert Carr of the Archaeological and Historical Conservancy dated October 31, 2002 shall be followed . . . . A special area within the pedestrian plaza in Parcel B will be set aside as a public viewing space for the exhibition and preservation of any significant features.

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c) The applicant shall provide a signed and sealed survey, completed by a licensed surveyor, of all significant archaeological structural features located on the site to date with a site plan of the proposed building footprint and proposed building pilings and structural elements overlaid on top . . . .

e) All salvaged portions of the Royal Palm Circle . . . shall be removed from its existing location by a skilled rock mason . . . . Prior to the issuance of a Certificate of Occupancy for the building, the feature shall be reconstructed in the 60-foot wide public plaza in accordance with a covenant to be provided by applicant prior to the issuance of the master building permit. . . . As stated in a letter dated April 1, 2005 from Robert Carr to Sarah Eaton [Preservation Officer], “the [Royal Palm] circle feature will be cut out by a rock mason to be placed in a secure location” and in a letter dated May 19, 2005 from Robert Carr to Sarah Eaton, “It is planned . . . to attempt to cut out and relocate the circle, as its location falls outside and west of the plaza.”

Ex. 4 at 2-3. (emphasis added to all but last two sentences).

From May 21, 2013 to September 16, 2013, Carr provided the City Preservation Officer with the following additional reports, describing some as monthly reports and others as notices of significant discovery:

• August 5, 2013 Notice of Discovery: Carr described: “[a]t least four linear alignments of post hole[s] extending northwest to southeast were observed paralleling the historic shoreline . . . . A second significant discovery was made of two smaller circles of post holes.” Ex. 51.

• August 14, 2013 Monthly Report: Carr described the linear alignments of postholes in the August 5, 2013 notice as “deep and possibly structural (either supporting fence posts or as foundational posts for an elevated platform).” Ex. 52.

• September 16, 2013 Monthly Report: Carr reported “more linear alignments of post holes” and that as of August 31, “a total of 1593 field numbers had been assigned.” Ex. 53.

In an October 4, 2013, notice of significant discovery, Carr reported two linear

“alignments” that created a “‘funnel’ shape feature” that “appears to be posts for a walled or boardwalk structure possibly linking some of the circular features.” Ex. 54. He attached the following:

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Ex. 54.

On October 28, 2013, the City of Miami issued a permit to drive test piles at METsquare that was subsequently re-issued, and the final version included as the first of thirteen conditions that “[a]ll requirements of Warrant 13-0013, HEPB 2002-68, HEPB 2004-48, and local, State, and Federal Preservation ordinances remain in effect and shall be followed by the applicant.”

Ex. 5 (emphasis added).

On October 30, 2013, Carr submitted his last notice of significant discovery, which described “a circle feature that had been previously unidentified,” “composed of two non- concentric rings,” with an “outside diameter [of] approximately 18 feet.” Ex. 6. He explained that “[t]his is the 6th circle feature identified on the parcel.” Ex. 6. The photograph attached showed METsquare littered with postholes, lines, and circles, the latter two drawn by Carr and

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his team:

Ex. 6.

On November 15, 2013, Chairperson of the HEP Board Committee William Hopper appeared on NPR’s All Things Considered and said “It wasn’t really until probably September that we began to have an idea of the significance of the find there. . . .” Ex. 7 (emphasis added).

The HEP Board Staff acknowledged in the draft case studies sent to MDM’s counsel on

Thursday, February 6 at 6:04 p.m.: “During the summer of 2013, a significant archaeological discovery” was made at METsquare, namely “[t]he foundations of a Tequesta village.” Ex. 12 at

2. The staff revised that language prior to submitting the case studies to the HEP Board to read

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the “fall of 2013,” but still identified the “significant archaeological discovery” as “[t]he foundations of a Tequesta village.” Ex. 14 at 2.

A February 3, 2014 email from Carr is labeled “addendum” to “monthly report” twice, nowhere uses words like notice of significant discovery, and attached pictures as well as another of Carr’s drawings. Ex. 8. The substantial similarity of Carr’s drawings attached to the February

3 email to his drawings on the attachments to the October 4th and October 30th notices of significant discovery confirm that nothing new was reported:

Ex. 8. The HEP Board meeting minutes from December 9, 2013, January 7, 2014, and February

4, 2014 all refer to “monthly reports” and do not mention “notices of significant discovery.” Ex.

9 at 7; Ex. 10 at 10; Ex. 11 at 9.

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The City Preservation Officer testified at the February 14, 2014 hearing that “[b]y the fall of 2013, it became apparent that we were not simply looking at an isolated [posthole] feature . . . but, rather, that the patterns and circles were interrelated and likely signifies foundation[s] of a

Tequesta village that had long been understood to be located there.” Ex. 1 at 134-35. At the

February 14, 2014, the City Preservation Officer testified that she could not identify a single document other than those addressed above, Ex. 1 at 137-38, 143, and her response to a subsequent public records request confirmed that she could not do so, Ex. 55; Ex. 56.

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Appendix D — Analysis of the Prehistoric Record

Identifying and Interpreting Patterns

Due to the years of development since the Tequestas left, Met Miami as a “highly disturbed” site, Ex. 58 at 15, and METsquare is an “intensely disturbed site.” Ex. 1 44.

MDM’s expert, Christopher Dore, who has a Ph.D. in anthropology and is an adjunct professor at the University of New Mexico, testified that because “we have a bedrock which through thousands of years is going to record the impressions that every generation of the people make,” he did not find enough data to show “the contemporaneous nature” of the circles and lines drawn by Carr and his team. Ex. 1 at 110.

Professors analyzing the Miami Circle site were also only able to draw very limited conclusions about that circle and what were initially identified as lines. See Brent Weisman,

Herschel Shepard, & George Luer, The Origin and Significance of the Brickell Point Site

(8DA12) Known as the Miami Circle, 53(4) Florida Anthropologist 342, 343, 345 (2000);

Randolph Widmer, Archaeological Investigations at the Brickell Point Site, 8DA12, Operation 3,

57(1-2) Florida Anthropologist 11, 13, 47 (2004); Lori Collins, Travis Doering, & Robert S.

Carr, Integrated Spatial Technologies: High Definition Documentation of the Miami Circle &

Royal Palm Circles, 59(3-4) Florida Anthropologist 161, 167 (2006).

Dating Holes

Professor Widmer recognized that there is no way to directly date the holes at the Miami

Circle. Widmer, 57(1-2) Florida Anthropologist, at 13. At the February 14, 2014 HEP Board

Meeting, it was suggested that the thickness of duricrust might permit dating. Ex. 1 45-46. This theory was likely extrapolated from work on the Miami Circle. Following rumors surrounding the antiquity of the Miami Circle, Guy Means and Thomas Scott, of the Florida Geological

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Survey, visited the circle site to determine whether or not the holes predated the installation of a septic tank in the 1950s. Guy H. Means & Thomas M. Scott, A Geological Assessment of the

Miami Circle Site, 53(4) Florida Anthropologist 324, 324 (2000). Ultimately, they concluded that because duricrust had formed within the holes but not on the area excavated for the installation of the septic tank, the holes must have predated the 1950s septic tank. Means & Scott, 53(4)

Florida Anthropologist, at 326. Using duricrust thickness to delineate between “prehistoric” and

“historic” holes here likely will not be as simple, not only because the “history” on the north bank of the Miami River dates back to the sixteenth century.

According to geology Professors H.G. Multer, at the College of Wooster in Ohio, and

J.E. Hoffmeister, initially at the University of Rochestor and later affiliated with the University of Miami, duricrust forms as a result of subaerial exposure, when acidic water leaches through the soil and dissolves the calcium carbonate, which reprecipitates as laminated crusts on the bedrock surface. H.G. Multer & J.E. Hoffmeister, Subaerial Laminated Crusts of the Florida

Keys, 79 Geological Soc’y of Am. Bulletin 183, 186-89 (1968). Means and Scott cite to Multer and Hoffmeister’s conclusion in their assessment of the antiquity of the Miami Circle. Means &

Scott, 53(4) Florida Anthropologist, at 324. They reference the radiocarbon dating of the much thicker duricrust performed by Multer and Hoffmeister in the Florida Keys, which identified ages between 880 and 4,395 +/- 90 years. Id. Means and Scott conclude, without citing to any authority, that “[t]hese dates [correlate] to the duricrust thickness, suggesting that duricrusts in this area accumulate at a rate of approximately 1 mm per 1000 years.” Id. But Multer and

Hoffmeister specifically note that “[t]hese age determinations probably exceed actual ages

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because of included carbonate derived from the underlying . . . limestone.” Multer &

Hoffmeister, 79 Geological Soc’y of Am. Bulletin, at189.20

Moreover, to test their hypothesis regarding subaerial duricrust formation, Multer and

Hoffmeister collected soil samples placed in tubes covering underlying bedrock surfaces, and subjected them to percolating water in an attempt to recreate the crust occurring in nature. Id. at

188). Within three and a half months, “a crust-like veneer of micro crystalline calcite . . . was formed on the underlying bedrock surface . . . .” Id. Means and Scott also noted: “[s]ome of these secondary holes have a thin duricrust developed on their surfaces that appears to have developed after their excavation.” Means and Scott, 53(4) Florida Anthropologist, at 324. Thus, dating the holes using duricrust thickness appears to be unreliable.

It has also been suggested that radiocarbon dating shells or artifacts in or near holes might inform conclusions about the date of the site, and Carr testified that “by indirect association” for “one hole” very near the foundations of the Royal Palm Hotel he believed they had a date of 650 A.D. Ex. 1 at 36-37, 44-45; see also Ex. 1 at 207. Of course, dating one hole does not tell you anything about the dates of the holes surrounding it or their relationship to one another over time.

And the Tequestas once had a prehistoric mound, somewhere near METsquare, which contained human remains, shells, shards, and other artifacts. John Sewell, Memoirs 57 (Ellen S.

Blakely et al. eds., Arva Parks & Co, 1987). This midden was razed and redistributed at least once, during the construction of the Royal Palm Hotel. See Appendix F. Carr described the site as “intensely disturbed,” in part for that reason, and that his single sample was close to the

20 Direct radiocarbon dating of the duricrust was not possible at the Miami Circle and is not possible at METsquare because it is only 1-2 mm thick, making it impossible to isolate and separate a sample of duricrust from the limestone that it covers. See Multer & Hoffmeister, 79 Geological Soc’y of Am. Bulletin, at 189.

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foundations of the Royal Palm Hotel. Ex. 1 at 36-37, 44-45; see also Ex. 1 at 207.

In the context of the Miami Circle, archaeologists recognized that radiocarbon dating of materials outside the holes provided little basis for inferring when the holes were dug. Professor

Widmer recognized that material excavated above the bedrock is “not directly associated with the Miami Circle feature” and thus, radiocarbon dates from that material are unreliable.

Widmer, 57(1-2) Florida Anthropologist, at 13. Further, “[i]n some cases, midden accumulations may be close in age to the carved holes, while in other cases the ancient Tequesta may have excavated through older deposits.” Fla. Div. of Historical Res., Miami Circle at

Brickell Point, National Historic Landmark Nomination, 7 (Fla. Dept. of State rev. 2008) (2004)

(emphasis added). And the National Park Service also recognized that “the association between the midden deposits and the carved hole features is problematic.” Id. In contrast to “sites where . . . materials [are] found within the posthole features. The Miami Circle excavators report[ed] a lack of wooden post remains within any of the holes remnants” Id. (citing Bob Carr

& John Ricisak, Preliminary Report on Salvage Archaeological Investigations of the Brickell

Point Site (8DA 12) Including the Miami Circle, 53(4) Florida Anthropologist 260, 275 (2000)).

Similarly, Carr and his team have failed to identify any wooden post remains within any of the hole remnants at METsquare, and these problems also will plague their efforts to date the holes.

Size of Tequesta Huts and Need to Rebuild

The Tequesta huts were likely small, not large. The circles that Carr and his team drew have diameters of up to about forty-one feet. Ex. 1 at 29-30. The Tequestas probably used pine to build their huts. Ex. 1 at 28-29. In excavations at the nearby Granada site, Dade County “pine

. . . is by far the dominant wood represented.” 1 C. Margaret Scarry, Archaeology & History of the Granada Site, Excavations at the Granada Site, Chapter 9, 211 (Florida Dept. of State 1971).

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Adult pine is “so dense . . . and so hard that when dry a special steel nail must be used or holes must be bored to receive nails.” 1 Frank C. Craighead, The Trees of South Florida, The Natural

Environments & Their Succession, 151 (University of Miami Press 1971). The Tequestas’ cutting tools likely included “shark’s teeth as part of composite knives,” “shells which could be sharpened,” and “barracuda teeth” “as possible composite knives.” Ex. 1 at 18. Carr also described most of the holes as “three inches to five inches.” Ex. 1 at 28. Thus, the Tequesta likely used sapling pine, which would have resulted in smaller structures.

Further, the evidence supports the repeated construction over a long period of time of many small structures. Even if the Tequesta were sedentary (all historical evidence shows that they were nomadic), in modern times at least, over six hurricanes every decade hit Florida, and hurricanes and severe storms would have forced the Tequestas to rebuild whatever structures existed. Meng Liu & C. Vipulanandan, Predicting the Annual and 10-Year Hurricane

Frequencies in Florida, CIGMAT Conference and Exhibition 2010, at 1. In the South Florida environment at the time, wood posts would rot, would be blown down, and would have to be replaced. Ex. 1 at 34. Over the course of the 2,000 years, there would have been 20 hundred- year storms.

Need for Elevated Structures

The METsquare property sits on the Atlantic Coastal Ridge, and for the past four or five thousand years, this land has ranged from five feet above sea level to eighteen feet above sea level. John E. Hoffmeister, The Geologic Story of South Florida, Land from the Sea 28

(University of Miami Press 3d ed. 1974); David Scholl & Minze Stuiver, Recent Submergence of

Southern Florida, 78 Geological Soc’y of Am. Bulletin 437, 451 (1967); Ex. 1 at 206. This was not a tidal area.

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Ransom asserted that the huts must have been elevated because “[t]here is no burning of the rock.” Ex. 1 at 206. Ransom nonetheless admitted that he did not “know how many feet of

[fill] was above the limestone when” the Tequestas occupied the land. Ex. 1 at 186-87. Carr testified that, at all times, the holes would have been beneath the surface of the ground or beneath structures. Ex. 1 at 40. This makes sense: the holes would no longer be there if the limestone had been exposed for some 2,000 years; the limestone features would have dissolved; that is why the Miami Circle was covered with fill. Ex. 1 at 53.

A more likely hypothesis about fire would be as follows: A collection of huts could surround a common fire or common area. Excavation of the Southwest Corner Circle has revealed a smooth, bowl-like depression in the center. While the chemistry (the effect of rainfall through a firepit through some amount of fill) or physical alterations that may have created such a feature are not clear, this possibly denotes an area habitually used for a central fire. Thus, the southwest corner of the site reflects physical evidence that would be consistent with the historical evidence of Tequesta visitation or habitation.

Connection to the Caribbean

Ransom likened the Tequesta post-holes to Caribbean findings that have served the basis for re-constructions there, but he admitted no connection exists between the Caribbean and

Florida. Ex. 1 193. John Goggin, who would later receive a Ph.D. from Yale and become an associate Professor of Anthropology at the University of Florida, published a seminal work on archaeological investigations in the upper Florida Keys that cautions against leaping to this conclusion:

Certain isolated traits which appear to be common to both [the Caribbean] and [Southern Florida] are repeatedly pointed out by careless, or romantic, writers and offered as proof of important cultural affiliations of the two areas. Complete cultural connections must be based on high percentile similarity of exhaustive cultural trait lists comprising

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subsistence, religion, social and linguistic, and artifactural material.

Archaeological Investigations in the Upper Florida Keys, 4 Tequesta 13, 32 (1944). Neither

Ransom nor Samson have done the sort of work that Goggin describes as necessary to draw any sort of reasoned connection between the Tequestas and the Caribbean.

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Appendix E — Written Accounts of the Tequestas

Resources collecting written accounts of the Tequestas, which include translations of primary sources and provide support for the statements made in the body of the memorandum, include the following:

Bishop Gabriel Diaz Calderon, A 17th Century Letter of Gabriel Diaz Vara Calderon,

Bishop of Cuba, Describing the Indians and Indian Missions of Florida 13 (Lucy

Wenhold trans. Smithsonian Miscellaneous Collections 1936).

Roland E. Chardon, Northern Biscayne Bay in 1776, 35 Tequesta 38, 39 (1975).

John Goggin , The Tekesta Indians of Southern Florida, 18(4) Fla. Historical Quarterly

274, 281 (1940).

John Hann, Missions to the Calusa (Bd. of Regents of the State of Fla. 1991).

Robert E. McNicoll, The Caloosa Village Tequesta, A Miami of the Sixteenth Century, 1

Tequesta 11, 16 (1941).

Arva Moore Parks, Archaeology & History of the Granada Site, Where the River Found

the Bay, Historical Study of the Granada Site, Miami, FL, 27 (Florida Dept. of State

1971).

William C. Sturtevant, Last of the South Florida Aborigines, in Tacachale, Essays on the

Indians of Florida and Southeastern Georgia during the Historic Period (Univ. Press of

Fla. 1994).

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Appendix F — History of the North Bank of the Miami River after the Tequesta Left

John August Ernest (1763-1783)

In 1763, the Spanish ceded Florida to England. Parks, Where the River, above, 68. In

1774, England granted John Augustus Ernest 20,000 acres, likely to the north of the Miami

River. Parks, Where the River, at 75; Ronald E. Chardon, Cape Society of 1773, 35 Tequesta 1,

2 (1975).

After the British ceded Florida back to Spain in 1783, Ernest brought a claim against the

British government and described his 25,000 acres as follows:

James C. Frazier, Samuel Touchett’s Florida Plantation, 1771, 35 Tequesta 75, 81 (1975). As

James Frazier notes that “the amount of pine land shown” in the schedule “indicates it was high land,” and for that and other reasons “can only be interpreted as running from Arch Creek (Rock

Ridge River) south to the Miami River (Fresh Water River).” Id. The British land claims were not settled. Chardon, Cape Society, at 3.

In 1783, the Spanish regained control of Florida, and, in 1819, Spain gave Florida to the

United States. Over the next 150 years or so, waves of Americans settled on the north bank of the Miami River, with its enviable high ground, easy access to fresh water, and access to the bay.

Those Americans built many structures.

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James Egan Family (early 1800s)

James Egan and his family occupied the north bank of the Miami River, which they cultivated with lime trees and transferred with “one frame house 18 x 22 feet, one small house and three hogs” on it. Parks, Where the River, 81-82 (quoting Key West Register). Planting lime trees requires digging holes and driving stakes into the ground. Ex. 1 at 38, 179.

Richard FitzPatrick (1830-1836)

Richard Fitzpatrick bought Egan’s land, and more, and sought to build a Southern-style plantation that included what Abraham Lincoln would call some thirty years later the “moral, social and political evil” of slavery. Parks, Where the River above, 83; Hugo L. Black III,

Richard Fitzpatrick’s South Florida, 1822-1840, Part II: Fitzpatrick’s Miami River Plantation,

41 Tequesta 34, 34-35 (1981); http://rogerjnorton.com/Lincoln95.html (visited March 24, 2014).

Many years later, Fitzpatrick submitted a schedule of property to the United States Government for the occupation of his plantation during the Second Seminole War that included everything that Fitzpatrick had on the plantation. He described a “lime grove destroyed” worth $2,000 and then went on to describe the buildings on the plantation as including one framed house, two corn cribs, one kitchen, one poultry house, one hewed log house, twelve “negro” houses, one framed house, smaller, and two framed houses and out-buildings purchased from Lewis. Black, 41

Tequesta, at 36 (quoting Fitzpatrick’s claim). Parks concluded that it is “impossible to give the exact location of the buildings on Fitzpatrick’s plantation.” Parks, Excavations at the Granada

Site, at 85.

Fort Dallas (1838-1842)

After the Seminoles attacked and drove out the Fitzpatrick’s, the United States Army and

Navy founded Fort Dallas on that location. Initially, Fort Dallas “had no permanent structures”

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and “was merely a tented camp.” Nathan D. Shappee, Fort Dallas and the Naval Depot on Key

Biscayne, 1836-1926, 21 Tequesta 13, 26 (1961). The hundred and ninety-nine troops began building what Parks describes as “blockhouses.” Parks, Where the River, at 90. On February 19,

1838, Navy Lieutenant L.M. Powell Powell wrote to the general in command of the troops in

Florida that the position was “high, healthy and at the mouth of a river which intersects the country” and that “Webster is here and is actively engaged in the construction of the works of the post.” Id. On March 1, 1838, Webster wrote the same general: “We have two log houses built and are now engaged in a third.” Id.

Parks writes that no physical descriptions of the buildings at Fort Dallas have been found but explained:

Forts typical of the period usually involved an enclosure made of 18-foot split logs fastened together with timbers. In this were firing loopholes about eight feet off the ground. Often a ditch or moat surrounded this barricade. Inside the enclosure were blockhouses to house troops and supplies.

Id. at 90 n.42) (paraphrasing Albert Manucy, Some Military Affairs in Territorial Florida, 25

Fla. Historical Quarterly 202, 205(1946) (Manucy cites no source).

In April 1838, Fort Dallas was evacuated because of the difficulty navigating the mouth of the Miami River and the bay immediately in front of it. Parks, Where the River at 92. From

April 1838 to July 1842, Army and Navy forces in the area skirmished with the Seminoles, periodically occupying and abandoning Fort Dallas, while both American soldiers and Seminoles died in the fighting. Parks, Where the River, at 92-94. The Second Seminole War petered off,

Fort Dallas was abandoned, and agricultural activity resumed in the Miami River area. Parks,

Where the River, at 94.

English Plantation (1843-1849)

Fitzpatrick sold his ruined plantation to William F. English for $16,000. Parks, Where

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the River, at 94. In January 1849, the United States Coast Survey team arrived in South Florida to begin the reconnaissance of the coast and Keys. Id. at 97. Chief F. H. Gerdes visited English in February 1849 and wrote that “at the mouth of the river (Miami) are some settlements” and “a plantation on the spot of old Fort Dallas.” Id. Parks also notes that shortly before the Gerdes description, English had begun to build two stone buildings, id. at 98, one about 42’ x 20’ and the other about 95’ x 17’. Id. at 104. Gerdes also drew the following map:

Fort Dallas (1849-1861)

In 1849, the army returned to Fort Dallas, but it withdrew again about a year later. Id. at

101. In 1855, the Army returned yet again to Fort Dallas. Id. at 103. The 168 troops first lived in tents over an area of about three acres on the north bank of the Miami River. Diary of an

Unidentified Land Official, 1855, 43 Tequesta 5, 13 (WrightLangley & Arva Parks eds. 1855).

The troops later roofed and floored both stories of one of English’s stone buildings and added a

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ten-foot-wide piazza. Parks, Where the River above, at 104. The soil upon which the soldiers built these structures was “very light, and broken for the most part by limestone rock.”

Statistical Report on the Sickness and Mortality in the Army of the United States Compiled from the Records of the Surgeon General’s Office, A Period of Sixteen Years, From January, 1839, to

January 1855, S. Rep. No. 34-96, at 322 (1856). By the summer of 1855, the troops had begun constructing four officers quarters, each with an individual piazza, a separate hospital with its own piazza, a hospital kitchen, a stable, a forage house, a blacksmith shop, a carpenter shop, and two kitchens. Parks, Where the River, at 104. By June 1856, the troops had added a fifth officers’ quarters, a log guardhouse, a log magazine, an office, and a subsistence storehouse.

Id.at 105.

Parks quotes from a girl who arrived in Miami in March 1858 at six years old, who stated that “all around the officers quarters, parade grounds and the soldiers barracks and scattered houses and tents everywhere was planted in flowers, shrubbery, and vegetables of all kinds.” Id. at 105. Aside from a single Seminole attack on a mill in what is now Coconut Grove, this period was largely peaceful. Id. at 106.

Post-Civil War Development (1869-1891)

In 1869, Dr. Jeptha V. Harris purchased the Fort Dallas property from the English heirs.

Id. at 113. Harris fenced in and cultivated ten acres of land and opened a road from the river to the bay. Id. at 113-14. In about 1873, Harris sold the land to the Biscayne Bay Company, which would hire a series of caretakers over the next few decades. Id. at 116. One built a veranda in front of the two-story stone house. Id. at 117. Another planted fifteen thousand lime and lemon trees and fifteen hundred coconut trees. Howard Kleinberg, Miami: the Way We Were, 23

(Seaside Publishing, Inc. 1990). Visitors also camped on the property in tents during this period.

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Parks, Where the River, above, at 121; Arva Parks, Miami, the Magic City, 62 (Community

Media 2008.

Julia Tuttle (1891-1896)

Julia Tuttle bought the six hundred and forty acres from the Biscayne Bay Company, and, in 1891, began improving it. Parks, Where the River, at 123. She added several more outbuildings, including a workshop, windmill, stable, boathouse, and wharf. Id. She also fenced in a hundred and fifty acres and planted fruit trees. Id.

Less than a year after purchasing the property, Tuttle began to plead with Henry Flagler to extend his railroad to Miami. Nixon Smiley, Yesterday’s Miami, 22 (E.A. Seamann

Publishing, Inc. 1973). Her pleas went largely unheard, until Florida suffered a devastating freeze, which Miami escaped unscathed. Id. at 9-10. Tuttle snipped a twig of orange blossoms from her garden and sent it to Flagler. Id. at 10. Only a few months later, Flagler signed the contract to extend his railroad in exchange for half of Tuttle’s land. Parks, Where the River, at 125.

The Royal Palm Hotel (1896-1930)

Construction of the Royal Palm Hotel began in 1896, and John Sewell was the foreman.

Sewell, at 20. To construct the hotel, Sewell first cleared the hammock, removed palmettos, and leveled the ground. Id. at 57; Parks, Where the River, at 125. Sewell dynamited the “rocky land” to break it up. Sewell, at 57. During the process, he discovered several large pits that he filled with rocks and sand. Id. Additionally, he noticed a large mound, south of S.E. 2nd street, near Biscayne Boulevard, Parks, Where the River, at 126, and the northeast corner of the proposed site for the Royal Palm Hotel, Sewell, at 57. He described it as:

A small mountain from the bay . . . the trees on top of this mound were sixty feet above water [and] the earth and rock were only about twenty to twenty five feet above the water

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level. There were large trees growing on top of the mound and it was about one hundred feet long by seventy five feet wide.

Id.

Sewell leveled the mound to make room for the hotel veranda. Id. He and his men removed fifty to sixty skulls and stored them in barrels in a tool shed. Id. at 57, 59. He took the remaining soil from the mound and screened it across the property to help make a lawn layer. Id. at 57. They tore down the tool shed when the hotel was finished and put all of the bones in a deep hole and filled it with sand. Id.; Parks, Where the River, above, at 126.

The Royal Palm Hotel opened January 15, 1897, to much fanfare. Parks, Where the

River, at 128. As shown in the following photographs taken of the half facing the Maimi River, the Royal Palm Hotel was a massive structure with 350 rooms for guests, more rooms for servants, and elaborate roads, walkways, and landscaped gardens. Sewell, at 201.

State Archives of Florida, Florida Memory, http://floridamemory.com/items/show/5499

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State Archives of Florida, Florida Memory, http://floridamemory.com/items/show/147187

Less than two years after the hotel’s grand opening, the Spanish American War began.

Parks, Where the River, at 128. Flagler urged the United States government to send troops to

Miami. Id.; Les Standiford, Last Train to Paradise: Henry Flagler and the Spectacular Rise and

Fall of the Railroad that Crossed an Ocean, 5 (Henry M. Flagler Museum reprt. 2012) (2002).

The government dispatched seven thousand troops to Miami, a city that only had two thousand permanent residents. Parks, Where the River, at 128.

According to Howard Kleinberg, the editor of the Miami News, the successor newspaper of Miami’s first newspaper, the Miami Metropolis, one of the Spanish American war encampments was on the Royal Palm Hotel grounds. Kleinberg, at 152.

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Kleinberg, at 153. The troops left after six weeks. Parks, Where the River, at 128 (citing Arva

Parks, Fort Brickell and the Battle of Miami,3(1) Update Historical Ass’n of S. Fla. 4 (1975)).

In September 1926, a hurricane struck Miami, devastated the City and islands in the bay, and severely damaged the Royal Palm Hotel: it was no longer habitable. Frederick P. Wilson,

Miami, From Frontier to Metropolis, 39 (Fla. Power & Light Co. reprt.1956) (1954). In 1930, the Royal Palm Hotel was demolished. .Sewell, at 210. For more than a decade afterwards, the

“footprint” of the Hotel could be seen in aerial photographs. Donald C. Gaby, Miami River and its Tributaries, 40 (Historical Ass’n of S. Fla. 1993). Sometime after the Hotel’s demolition, the site was covered by a surface parking lot, which MDM acquired in 2002.

F-9 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 24th day of March, 2014, I emailed this document to everyone reflected on the attached Service List.

SERVICE LIST

Commissioner Wilfredo Gort Megan McLaughlin Vice Chairman Preservation Officer City of Miami City of Miami Planning and Zoning Dept. 3500 Pan American Drive 444 S.W. 2nd Avenue Miami, Florida 33133 3rd Floor Email: [email protected] Miami, Florida 33130 Email: [email protected]

Commissioner Marc Sarnoff Amanda Quirke Chairman Assistant City Attorney City of Miami City of Miami 3500 Pan American Drive Office of the City Attorney Miami, Florida 33133 444 S.W. 2nd Avenue Email: [email protected] Suite 945 Miami, Florida 33130 Email: [email protected]

Commissioner Frank Carollo Rafael Suarez-Rivas City of Miami Assistant City Attorney 3500 Pan American Drive City of Miami Miami, Florida 33133 Office of the City Attorney Email: [email protected] 444 S.W. 2nd Avenue Suite 945 Miami, Florida 33130 Email: [email protected]

Commissioner Francis Suarez Todd B. Hannon City of Miami City Clerk 3500 Pan American Drive City of Miami Miami, Florida 33133 Office of the City Clerk Email: [email protected] 3500 Pan American Drive Miami, Florida 33133 Email: [email protected]

Commissioner Keon Hardemon City of Miami 3500 Pan American Drive Miami, Florida 33133 Email: [email protected]