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Page 4 of 6 For this reason alone, the COA Denial must be reversed. B. The COA Denial Constitutes an Unconstitutional Taking of Owner's Property. Under the City's Code, an undue economic hardship is defined as "[a]n exceptional financial burden that would amount to the taking of property without just compensation, or failure to achieve a reasonable economic return in the case of income-producing properties." § 171-1, City Code. Denying demolition in these circumstances constitutes an undue economic hardship and an unconstitutional taking of private property, especially where the cost of restoration or maintenance is so great that the owner would be precluded from making economically beneficial use of the property. See id.; e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) ("when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking"). C. Owners Satisfied the only applicable City Criteria When reviewing an application for a Certificate of Appropriateness, the Board's decision must be based on "an evaluation of the compatibility of the physical alteration or improvement with surrounding properties" and, where applicable, compliance with (A) "The Secretary of Interior's Standard for Rehabilitation and Guidelines for Rehabilitating Historic Buildings, as revised from time to time"; and (B) "Other guidelines/policies/plans adopted or approved by resolution or ordinance by the City Commission." § 171-10, City Code. Owners maintain that the Secretary of Interior's Standard for Rehabilitation and Guidelines for Rehabilitating Historic Buildings are not applicable to a Certificate of Appropriateness for demolition. There is City precedent to support this. In 2007, following damage from Hurricane Wilma, the "Pergola"4 was deemed structurally unsound and uninsurable. The HPB determined that the relevant standard to issue a COA for demolition was "upon an evaluation of the compatibility of the physical alteration or improvement with surrounding properties" and, applying that standard, issued the COA for demolition (HPB Resolution 2007- 05), and the Pergola was subsequently demolished (emphasis added). To the extent that such guidelines are applicable, they are not, the Secretary of Interior's Standard for Rehabilitation and Guidelines on Flood Adaption for Rehabilitating Structures recognizes that "in making land -use and planning decisions for a community or neighborhood, there may be situations when it is necessary to identify sacrificial historic sites or structures" and that "demolition could be chosen to remove buildings most at risk ... to allow for new Building Code or a higher base flood elevation as may be required by local ordinance, whichever is higher, provided that such permit otherwise complies with all applicable Florida Building Code, Florida Fire Prevention Code, and Life Safety Code requirements, or local amendments thereto."). 4 The Pergola existed on a separate, parcel abutting the Property and owned by the Applicant and was demolished following the issuance of a Certificate of Appropriateness from the City's Historic Preservation Board (HPB Resolution 2007-05). Shubin Law Group Shubinlawgroup.com ( Tel (305) 381-6060 1 Fax (305) 381-9457 153 PROFESSIONAL ASSOCIATION