October 3, 2007
Mayor David Dermer and Members of the City Commission
THE CITY OF MIAMI BEACH
Ordinance to Create Affordable Housing within the
Cultural Arts Neighborhood District Overlay – CANDO
Honorable Mayor and Commission Members:
You are petitioned to disapprove of the above-referenced ordinance 1) until such time as the proposed ordinance is supported by a long-term economic impact statement as is required by Section 5.02 Charter of the City of Miami Beach, and 2) until such time as the ordinance clearly identifies the nature of the class of “cultural arts workers” to whom the legislation purports to provide “affordable” housing, and 3) until such time as the Land Use and Development Committee, the Planning Board, and the City Commission have fully reconsidered the ordinance in its present form, which differs linguistically from the form considered prior to the First Reading by seventy-five percent due to redaction and editing of the text, and 4) until such time as an investigation is conducted to determine whether or not the Citizens’ Bill of Rights has been violated in respect to the presentation of the CANDO ordinance by administrative personnel who may have deliberately provided false and misleading information to the City Commission and citizenry of the City of Miami Beach.
1. IS CANDO A QUACKING DUCK?
The First Reading, on September 5, 2007, of the latest draft of the proposed ordinance was not supported with a long-term economic impact statement. The Charter provides by way of amendment had by referendum that “The City of Miami Beach shall consider the long-term economic impact (at least 5 years) of proposed legislative actions.” The editor’s note, below the fourth item of the Citizens’ Bill of Rights of the Charter states: “The following footnote to this section on citizens’ bill of rights was adopted with Charter: 1. Ordinance, means an official legislative action of the Miami Beach City Commission, which action is a regulation of a general and permanent nature and enforceable as a local law.”
Ballot Question No. 5 explained the economic impact amendment to the People by whom it was approved: “This ballot question asks the voters whether Article V of the City Charter should be amended so that the City Commission is advised of the long-term economic impact of any legislative act voted on by the City Commission. In preparing Commission items, reports and analysis for the City Commission to consider, staff will calculate the long-term cost and financial impact of the item so that the City Commission considers the long-term fiscal impact of all legislative actions taken.”
There is a difference in meaning between the terms “fiscal” and “economic,” terms that are often confused, considered as virtually synonymous, and loosely construed as ‘financial’ or ‘anything to do with money.’ But the term ‘economic’ generally refers to the allocation of scarce resources, as in the development, production and management of material wealth, as of a country, household, or business enterprise, while the term “fiscal” refers to the particular financial affairs of a nation or branch of government, or the finances of a municipal corporation.
Naturally those acts of a governing body that have an economic impact in the general sense would also have a fiscal impact on its own finances; for instance, a national mandate that a couple can have only one child in their lifetimes would have a long-term economic impact on people of a country as well as a fiscal or budgetary impact on the nation and its subsidiary governing bodies.
The amendment to the Charter as drafted by legal counsel is positioned under Article V, Budget and Finance, of the Charter, yet it explicitly refers not to the “fiscal” but to the “economic” impact of legislative acts, therefore the impact should be generally interpreted to mean “economic,” as economic impact includes fiscal impacts.
Mayor David Dermer, an attorney who is licensed to practice law in the State of Florida and who is therefore professionally aware of the precise difference in meaning of the terms ‘economic’ and ‘fiscal’, alluded to the intent of the impact amendment to the Charter in his 2004 State of the City address, where he congratulated Commission Simon Cruz for its conception: “Simon basically said: How is this decision we are making today, whether in the budget or on a separate issue, going to affect us down the road?” The People would naturally expect that the honorable mayor’s representative ‘us’, the objective case of ‘we’, would include We the People.
The Commission Memorandum for the September 5, 2007 First Reading of the proposed CANDO affordable housing ordinance stated that, “The proposed Ordinance is not expected to have any fiscal impact.” No economic impact study was present by staff to support finding. The Memorandum should have addressed the Charter’s requirement for an economic study regardless of the subjective opinion of administration officials that the passing of the ordinance would have no impact on City finances. If the required economic impact studies were in fact conducted by the Land Use and Development Committee and Planning Board that recommended approval, those studies should be included in the Commission Agenda for readings and should be orally referred to by the Commission beforehand for the edification of everyone concerned.
The expressly stated intent of the ordinance in question is economic inasmuch as the ordinance would purportedly “provide land use incentives to property owners, developers and commercial business to create affordable housing for cultural workers, encourage arts-related businesses to establish within the district, and to create mandatory requirements for new construction and rehabilitation of housing units.” Furthermore, the honorable mayor’s stated purpose for initiating the ordinance was to “reverse the gentrification process whereby high rents and property values displace artists, art galleries and cultural activities” from the area of the delineated district.”
In fact, if these economic objectives were not actually intended, and therefore no economic impact study were required, the entire CANDO district is nothing but a canard, i.e. a quacking duck, or, if you prefer, lipstick on a pig. In fact, the facts indicate that City Hall’s anti-gentrification efforts are mere tokens in comparison to its overwhelming gentrification successes in terms of populating the beach with self-styled gentry and ridding it of the non-gentry or ‘vulgar’ people. Any economic impact statement should take this subterfuge into account, and know that the overwhelming success can and should be construed as an overwhelming failure because of the unjust imbalance that presides as the power elite ruins what was once a “poor man’s paradise.”
WHO QUALIFIES FOR WHAT?
The required economic impact statement would naturally assess the expected economic effect not only on real estate developers but on the supposed beneficiaries of the zoning incentives, the class identified in the ordinance as “cultural arts workers.” In fact, nearly the entire ordinance has been rewritten, as its underscored text indicates and is duly noted at the foot of the ordinance - “Underscore denotes new language” - as a result of otherwise unacknowledged objections this writer brought to bear on the original language, which seemed to economically exclude, in respect to artists, all but the privileged in-group of contemporary artists associated with the political and economic power elite including politicians and real estate developers.
The honorable mayor’s CANDO spokesman, a professional writer, did say writers would be included by definition in the cultural-workers class because they are “bullshit artists.” The current revision of the ordinance draft does more adequately define what occupations suit the cultural arts workers classification, but it has failed to provide a clear definition or criterion of those financial qualifications that eligible applicants for affordable housing must have. “Income eligibility” is too vaguely mandated to make any sense at all in respect to the occupations defined, for the ordinance does not state what portion of the income must be derived from the occupation in order for a member of that class to qualify for so-called affordable housing.
For instance, this writer invests about 35 hours a week in his writing-related activities; his total earnings from the sale of his writing was $175 in honorariums over one year. Does he qualify for CANDO housing? Does the installation artist who constructs enormous replicas of garbage such as banana peels and watermelon rinds for public display and who earns $2,000 in one year from her art, but who receives $36,000 in free support from her parents, or perhaps $20,000 as a waitress, qualify for CANDO housing? Furthermore, eligibility qualifications should take into account that an artist’s gross income is not a good measure of earnings since his or her earnings are offset by production costs; the measure should be the Schedule C net income from artistic activities reported on Schedule SE, or the artistic income from Forms K-1 received from relevant partnerships and small business corporations.
An adequate economic impact statement would provide specifics as to the percentage of cultural workers who might presently benefit from the proposed CANDO zoning incentives. Instead of supporting vague definitions of an occupational class with impertinent statistics, an actual study or census of Miami Beach cultural workers, who can serve as a representative sample, should be conducted. This writer intuits that the qualifications will suit only the managerial and executive class of cultural institutions, and not the workers. As for “struggling artists,” who are the great majority of artists, their qualification for so-called affordable housing is doubtful unless such housing is to be low-cost Section 8 housing. Those artists who do qualify as the ordinance is written will probably be members of the in-group who play art politics, the persons whom the honorable mayor’s representative said would be “put down in front.”
3. THE MURKY WATERS
Nearly the entire draft of the ordinance was suddenly reworded for the First Reading. The substantial change in character warrants another review by all persons involved. Instead of providing the particular income qualifications that were provided in previous drafts of the ordinance, the City defers to HUD and State of Florida “guidelines for income eligibility for affordable housing,” presumably guidelines for the “moderate income cultural arts workers” mentioned in the September 5 Commission Memorandum. The final draft appearing in the September 5 Agenda defines “affordable housing” as housing available at a cost of no more than 30% of 120% of the area median income reported by HUD.
In a previously revised draft of the ordinance, the term “moderate” was substituted for the terms “affordable.” Perhaps the substitution was a Freudian slip – what some people consider to be “moderate” housing costs is not “affordable” for many people who work in Miami Beach but cannot afford to live there.
“Moderate income” was defined in an earlier draft as “Households whose incomes are between 51 percent and 80 percent of the median income for the area as determined by U.S. Department of Housing and Urban Development.” The 80 percent was revised in the subsequent draft to “120 percent” – disregarding a commissioner’s motion that it should be changed “140 percent.” 51% to 120% of the current HUD median of $55,900 would have required a minimum income of $28, 509. The maximum income would have been and remains at $67,080.
This writer pointed out to the honorable mayor and commissioners that the lower threshold would exclude the genuinely “struggling artists” mentioned in CANDO-related publicity; for instance, Darwin Leon, otherwise known as the Cinderella of ArtCenter/South Florida, a fine artist with a family of four that has a gross income, entirely from the sale of art and art instruction, of about $12,000 per annum. The director of ArtCenter/South Florida, a ‘Contemporary Art’ institution, is a prominent member of the mayor’s CANDO Committee. The Center has rejected Mr. Leon’s applications for affordable studio space several times. Images of his art may be viewed at www.darwinleon.com.
The administration claimed that the parameter of 51% to 120% in the previous ordinance draft was a HUD guideline, But then the City Manager’s office stated that there is no minimum income for qualification. Having made that clear for a moment, and after this petitioner interpreted the statement to mean that unemployed artists would qualify, the water was muddied again, and again, and again, and nothing is now perfectly clear, no criterion are stated, no examples are given in an impact study of how the guidelines work. The beat reporter for the Miami Herald dropped her previous reference to minimum qualifications, and phrased the qualification as an ideal: “People who qualify for affordable housing must be artists or employees of cultural arts organizations and will ideally earn between 80 percent and 120 percent of the county’s median income….”
What is the ideal? What of those who fall below it? Is there discrimination in the application process? For a family of four, that ideal income would be from $44,720 to $67,080. The same reporter, in a feature touting the CANDO zoning, used as her poster boy an installation artist whose public statements of expenses indicated that his annual income is well in excess of $100,000 per annum. Note that the Commission Item Summary document of the First Reading of the ordinance on September 5 gives as “supporting data” a 2007 question-biased survey that indicates that 36% of Miami Beach residents believe that the City should ensure housing for those who have incomes less than $50,000. “Workers” new to Miami Beach soon learn at the Workforce employment center that the ideal income wanted by many unemployed workers is about $10 per hour, or $20,600 per annum – many jobs pay less. A construction worker might earn $27,000 per annum. Needless to say, many workers including cultural arts workers live off Miami Beach.
4. CIVIL RIGHTS IN MIAMI BEACH
As the honorable mayor and members of the commission should know very well from their mail if they have a mind to read it, this writer submitted a letter of complaint to the honorable mayor’s office asserting the probability that public officials have been deliberately providing false information about CANDO to the public, in violation of the Citizens’ Rights clause of the Charter. It appears that violations may be punished by fines, jail sentences, and removal from office. The mayor’s office and the city attorney’s office did not deign to respond to the complaint, which gave public officials the benefit of the doubt, and asked that charitable contributions be made to this writer’s favorite shelter for abused women and children.
The Miami Herald, a major supporter of Art Basel Miami, a CANDO-inspired presence in Miami Beach, has served the City of Miami Beach as a virtual propaganda organ for its CANDO motions. In fact the mayor’s office posts copies of newspaper articles on its website. When someone complains about the inaccuracy or inadequacy of that publicity posing as news, s/he is told that it will not be taken down from the website nor will it be corrected by press releases, because “city officials are not responsible for what the media says.” Yet it is the city that is providing said information to the media and then republishing it as if it were official truth. And when questions are asked of the press its reporters and editors do not deign to reply.
Public officials might and perhaps should be given the benefit of the doubt. They might have good intentions at all times. Nobody is perfect and everyone errs. But the old saw about good intentions certainly applies when adequate impact studies are not openly made of the probable consequences of official actions.
The truth gives way to devious advertising. The Sheol arrived at may be worse given the custom of manipulating communications to justify injustice and obtain whatever is wanted. If something is done wrongly long enough, wrong feels right and right seems wrong Indeed, it is your petitioner’s experience with city officials that whosoever questions official behavior is always wrong in their eyes and is to be treated by the in-group with rolling eyeballs and other expressions of contempt.
Of course that is normal human behavior. Everyone who has not acquired the habit of self-examination or who does not feel a bad conscience tends to believe they are right in what they do, and may the rest be damned. The ancient Greeks were severe when they stated that all persons regardless of status should have a natural sense of justice and that persons without a sense of justice should be put to death or exiled. The probable consequences of the unconscionable attitude that prevails today, best represented by the forces of darkness of corporate-board tribalism and public-private collusions that have seized even the highest offices in the nation, are most grave as the injustice mounts, and makes one mindful of those effects described by Jeremiah and other prophets who for good historical reasons placed most of their faith in justice when very little of it was to be immediately had.
You are entreated to disapprove of the proposed ordinance as it is written and to proceed again rightly as is recommended. After all, what is the rush?
DAVID ARTHUR WALTERS
Miami Beach, Florida 33139