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2011-3742 OrdinanceORDINANCE NO. 2011 -3742 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE BY AMENDING CHAPTER 118, "ADMINISTRATIVE AND REVIEW PROCEDURES," ARTICLE II, "BOARDS," DIVISION 5 "BOARD OF ADJUSTMENT," SECTION 118 -137, "STAY OF WORK AND PROCEEDINGS ON APPEAL," CLARIFYING AND AMENDING THE STAY PROVISIONS APPLICABLE TO MATTERS ON APPEAL TO THE BOARD OF ADJUSTMENT; PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the land development regulations provide for appeals to the Board of Adjustment of administrative orders, requirements, decisions or determinations made by an administrative official; and WHEREAS, City Code section 118 -137 provides for a stay of all work on the premises and all proceedings in furtherance of the action appealed, upon the filing of such appeal; and WHEREAS, it has been determined that Development Review Board Hearing applications can proceed to hearing before the board to which application was made as long as the approval does not vest, meaning it cannot be used to obtain the issuance of a building permit, until the appeal to the Board of Adjustment is resolved; and WHEREAS, the amendments set forth below are necessary to accomplish the above objectives. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: Section 1 . Chapter 118, "Administrative And Review Procedures," Article II, "Boards," Division 5, "Board Of Adjustment," Section 118 -137, "Stay Of Work And Proceedings On Appeal," is hereby amended as follows: Sec. 118 -137. - Stay of work and proceedings on appeal. An appeal to the board of adjustment stays all work on the premises and all proceedings in furtherance of the action appealed from unless one of the exceptions in subsection (2) applies. (2) Exceptions: (a) The official from whom the appeal was taken shall certify to the board of adjustment that, by reason of facts stated in the certificate, a stay would cause imminent peril to life or property. In such a case, proceedings or work shall not be stayed except by a restraining order, which may be granted by the board of adjustment or by a court of Fes eFd competent jurisdiction, upon application, UpeR with notice to the officer from whom the appeal is taken and for 4i4e good cause shown. or 1 of 3 If the appeal arises from an application for Development Review Board Hearing or other approval requiring a hearing before a land use board, the hearing before the board to which application was made may proceed, provided any approval does not vest. The final order shall contain appropriate conditions to stay its effectiveness until the final resolution of all administrative and court proceedings. No building permit, or certificate of occupancy, or Business Tax Receipt, dependent upon such hearing approval, shall be issued until the final resolution of all administrative and court proceedings as certified by the City Attorney. The applicant for such land use board hearing shall hold the City harmless and agree to indemnify the City from any liability or loss resulting from such proceedings. Notice of the final resolution of administrative and court proceedings shall be provided as required for notice of hearings under these land development regulations. Notwithstanding the foregoing, an appeal to the board of adjustment or court, or other challenge to an administrative official's decision, shall neither stay the issuance of any building permit, full building permit or phased building permit nor stay the running of the required time period set by board order or these land development regulations to obtain a full building permit or phased building permit. SECTION 3. Repealer. All ordinances or parts of ordinances and all sections and parts of sections in conflict herewith be and the same are hereby repealed. SECTION 4 . Codification. It is the intention of the City Commission, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Code of the City of Miami Beach as amended; that the sections of this ordinance may be renumbered or relettered to accomplish such intention, and that the word "ordinance" may be changed to "section" or other appropriate word. SECTION 5 . Severability. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 6. Applicability. It is the intention of the City Commission that this ordinance apply to all pending appeals to the Board of Adjustment as of the date its adoption, as well as prospectively. SECTION 7. Effective Date. This Ordinance shall take effect ten days following adoption. PASSED and ADOPTED this 1 9th day of October , 2011. i ATTEST: .,'""� vim First Reading: Second Reading: Verified by: Richard G. Lorber, AICP Acting Planning Director FORM AND LANGUAGE & FOR EXECUTION y Attorney Date Underscore denotes new language. T:\AGENDA\2011 \10 -19- 11\2011 -BOA stay ord 10 -19 -2011 - FINAL.doc 3 of 3 COMMISSION ITEM SUMMARY Condensed Title: An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Amending Chapter 118 clarifying and amending the stay provisions applicable to matters on appeal to the Board of Adjustment. Key Intended Outcome Supported: Regulatory. Supporting Data (Surveys, Environmental Scan, etc.): N/A Issue: Should the City Commission amend the stay provisions applicable to matters on appeal to the Board of Adjustment to allow an application to proceed, provided any approval does not vest until the appeal is resolved, and the applicant holds the City harmless and agrees to indemnify the City from any liability or loss resulting from such proceedings? Item Summary /Recommendation: Second Reading Public Hearing The administrative appeal provisions of the Code have the effect of putting all land use board hearings on hold until the appeal can be ruled on by the Board of Adjustment. While the appeal provision is generally used only in cases where serious concerns about a planning interpretation or other administrative determinations are involved, there are also appeals filed on matters of administrative details, or matters that can be resolved by the board to which application was made. These types of appeals do not justify staying the proceedings before a development review Board. While the appeal procedure is important to protect the rights of property owners and residents surrounding proposed developments, the stay provision is not always the correct outcome pending resolution of an appeal. The proposed ordinance would permit an application to proceed to a hearing before a land use board where the application is made provided that the approval does not vest until the appeal is resolved and the application holds the City harmless from any liability or loss resulting from such proceedings. The Administration recommends that the City Commission open and continue the public hearing on the proposed ordinance to its December 14, 2011 meeting. Navisory Boar a Kecommenaation: At its May 24, 2011 meeting, the Planning Board, by a vote of 6 -1 recommended that the City Commission adopt the proposed ordinance. Financia Information: Source of Amount Account Funds: 2 3 OBPI Total Financial Impact Summary: In accordance with Charter section 5.02, which requires that the "City of Miami Beach shall consider the long -term economic impact (at least 5 years) of proposed legislative actions," this shall confirm that the City Administration evaluated the long -term economic impact (at least 5 years) of this proposed legislative action, and cannot readily determine any potential measurable impact on the City's budget as a result of the approval of the proposed ordinance. City Clerk's Office Legislative Tracking: Mercy Lamazares or Richard Lorber Sign - Offs: ,J?epartmel Director A�sistant City nager City Manager t: \agenda\2011 \10 -19- 11\2011 - stay of work an ocqoings o appeal sutn.do x MIAMIBEACH AGENDA ITEM S � DATE 10 C // ID MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the Ci y Commission FROM: Jorge M. Gonzalez, City Manager., DATE: October 19, 2011 Second Reading Public Hearing SUBJECT: STAY OF WORK AND PROCEEDINGS ON APPEAL AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE BY AMENDING CHAPTER 118, "ADMINISTRATIVE AND REVIEW PROCEDURES," ARTICLE II, "BOARDS," DIVISION 5, "BOARD OF ADJUSTMENT," SECTION 118 -137, "STAY OF WORK AND PROCEEDINGS ON APPEAL," CLARIFYING AND AMENDING THE STAY PROVISIONS APPLICABLE TO MATTERS ON APPEAL TO THE BOARD OF ADJUSTMENT; PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission open and continue the public hearing on the proposed ordinance to the December 14, 2011 meeting. BACKGROUND A discussion relative to the stay of proceedings of City Code Section 118 -136 and Section 118 -137, resulting from appeals of administrative decisions to the Board of Adjustment was referred to the Land Use and Development Committee and the Planning Board by the City Commission on February 9, 2011, at the request of Commissioners Tobin, Libbin and G6ngora. The reason referenced for this referral was because multiple appeals from administrative determinations have been made to the Board of Adjustment in the last few months resulting in applications not proceeding to hearing before the Design Review Board and Planning Board, pursuant to Section 118 -137. ANALYSIS Section 118 -136 gives the Board of Adjustment the power and duty to hear and decide appeals when it is alleged that there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of the land development regulations (with some exceptions). The Board may, upon hearing the appeal, reverse or affirm, wholly or partly, the order, requirement, decision, or City Commission Memorandum Stay of work and proceedings on appeal October 14, 2011 Page 2 determination, and to that end shall have all the powers of the officer from whom the appeal is taken. As with all matters before the BOA, it takes five votes (out of seven members) to rule on an appeal. Section 118 -137 states that an appeal to the BOA "stays all work on the premises and all proceedings in furtherance of the action appealed from." There is an exception for matters of life safety. The administrative appeal provisions of the Code are an important part of providing citizen oversight and protection. However, these provisions do also result in putting all land use board hearings on hold until the appeal can be ruled on by the Board of Adjustment. While the appeal provision is generally used only in cases where serious concerns about a planning interpretation or other administrative determinations are involved, there are also appeals filed on matters of administrative minutiae, or matters that can be resolved by the board to which application was made. These types of appeals, while permitted, may not have the importance or impact to affected parties that would justify staying the proceedings before a development review Board. While the appeal procedure is important to protect the rights of property owners and residents surrounding proposed developments, the stay provision may not always be the best method of addressing these matters pending resolution of an appeal. The proposed ordinance before the Commission would permit an application to proceed to a hearing before a land use board where the application is made provided that the approval does not vest until the appeal is resolved and the application holds the City harmless from any liability or loss resulting from such proceedings. Note that there are two other proposals that are related to, but independent of this proposed ordinance, which were separately discussed at the Land Use and Development Committee and City Commission meetings, and were also referred to the Planning Board. One is a proposal that would amend the jurisdiction and procedure of land use boards concerning appeals. This proposal would clarify and amend the jurisdiction of each respective board over appeals of administrative orders, requirements, decisions or determinations and the procedures that would arise from an application made to those respective boards. The second proposal would clarify and amend the definitions applicable to and procedures for obtaining an administrative determination from the planning director, and require that these determinations be published. These matters have been reviewed by the Planning Board and are scheduled for review by the Land Use and Development Committee at its October 26, 2011 meeting. CITY COMMISSION ACTION The City Commission at the July 13, 2011 meeting approved the ordinance on First Reading. The item was scheduled for Second Reading for October 19, 2011 in order to permit two companion ordinances on similar subjects to be heard together. PLANNING BOARD At its May 24, 2011 meeting, the Planning Board, by a vote of 6 -1 recommended that the City Commission adopt the proposed ordinance (Stolar opposed). FISCAL IMPACT In accordance with Charter section 5.02, which requires that the "City of Miami Beach shall consider the long -term economic impact (at least 5 years) of proposed legislative City Commission Memorandum Stay of work and proceedings on appeal October 14, 2011 Page 3 actions," this shall confirm that the City Administration evaluated the long -term economic impact (at least 5 years) of this proposed legislative action, and cannot readily determine any potential measurable impact on the City's budget as a result of the approval of the proposed ordinance. CONCLUSION The proposed ordinance was approved on first reading by the Commission at its July 13, 2011 meeting. The item was scheduled for second reading in October to permit two companion ordinances on similar subjects, Board Jurisdiction and Administrative Determinations, to be heard by the Planning Board and the Land Use and Development Committee. Those items have been reviewed by the Planning Board and are scheduled to be discussed by the Land Use and Development Committee later this month, at its October 26, 2011 meeting (the items had only been discussed previously at the Committee of the Whole). Therefore, the Administration recommends that the City Commission open and continue the public hearing on the proposed ordinance to the December 14, 2011 meeting, in order to permit the companion ordinances to be reviewed by the LUDC. If the Commission chooses to go forward with the public hearing today, note that the item has received proper noticed as detailed below. When a request to amend the land development regulations does not change the actual list of permitted, conditional or prohibited uses in a zoning category, the proposed ordinance may be read by title or in full on at least two separate days and shall, at least ten days prior to adoption, be noticed once in a newspaper of general circulation in the city. The notice shall state the date, time and place of the meeting; the title or titles of proposed ordinances; and the place or places within the city where such proposed ordinances may be inspected by the public. The notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance. Immediately following the public hearing at the second reading, the City Commission may adopt the ordinance. An affirmative vote of five - sevenths of all members of the City Commission shall be necessary in order to enact any amendment to these land development regulations. JMG /JGG /RGL /ML tAagenda\2011 \10 -19- 11\2011 -stay of work and proceedings on appeal memo.docx Afteraction February 9, 2011 City of Miami Beach C2 - Competitive Bid Reports C2A Request For Approval To Issue A Request For Proposals (RFP) For Investigative And Adjusting Services For Selected Tort Liability Claims And Workers' Compensation Claims. (Human Resources /Risk Management) ACTION: Request authorized. Gus Lopez to issue the RFP. Ramiro Inguanzo to handle. C2B Request For Approval To Issue A Request For Proposals (RFP) For Auctioneer Services Of City Surplus Items, On An "As Needed" Basis. (Procurement) ACTION: Request authorized. Gus Lopez to issue the RFP and to handle. C4 - Commission Committee Assignments C4A Referral To The Finance And Citywide Projects Committee A Discussion Regarding Whether Or Not To Exercise Renewal Options In The Management Agreement With Global Spectrum For The Management Of The Miami Beach Convention Center, Colony Theater And Byron Carlyle Theater. (Tourism & Cultural Development) ACTION: Referred. Patricia Walker to place on the committee agenda. Max Sklar to handle. C413 Referral To The Finance And Citywide Projects Committee - Discussion Regarding Granting The Miami Beach Garden Conservancy The Right To Receive Naming Gifts As Part Of The Garden Renovation. (Requested by Commissioner Jerry Libbin) ACTION: Referred. Patricia Walker to place on the committee agenda. Anna Parekh to handle. C4C Referral To The Land Use And Development Committee To Discuss Parking Requirements And How We Can Incentivize For Good Hotel Development. (Requested by Commissioner Jonah Wolfson) ACTION: Referred. Richard Lorber to place on the committee agenda. Richard Lorber to handle. (D 4D Referral To The Land Use And Development Committee Discussion Regarding Stay Of Proceedings Of City Code Section 118 -136 And Section 118 -137, Resulting From Appeals Of Administrative Decisions To The Board Of Adjustment. (Requested by Commissioners Edward L. Tobin, Jerry Libbin & Vice -Mayor Michael Gbngora) ACTION: Amended via corrections: Item referred to the Land Use and Development Committee and to the Planning Board at the request of Commissioner Tobin. Richard Lorber to place on the committee agendas and to handle. Prepared by the City Clerk's Office Page No. 7 of 31 M: \$CMB \C ITYC LE R\AFTERACT\ 2011 \ Afteractions \20110209\aa02092011.doc m MIAMI BEACH OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM TO: Jorge M. Gonzalez, City Manager FROM: Ed Tobin, Commissioner DATE: January 31, 2011 SUBJECT: Agenda item for February 9th Commission Meeting — Referral of item for Discussion to Land Use and Development Committee Please place on the February 9", 2011 City Commission meeting agenda a referral to the Land Use and Development Committee to discuss the effect of stay of proceedings resulting from appeals of administrative decisions to the Board of Adjustment, under City Code Section 118 - 137, relating to applications before other land use boards. Should you have any questions, please contact Yanette Bravo at ext. 6274. Agenda Item G yD We an aomnWad b po"w &v*& i puWic service and sa* b of who #w, work and p* in i D ab p [ 29 m MIAMI BEACH OFFICE OF THE MAYOR AND COMMISSION 2 j F`n -- ° j I OEMORANDUM TO: Jorge Gonzalez, City Mana§dt FROM: .terry Libbin, Commissioner DATE: February 2, 2011 SUBJECT: Consent agenda item for the February 9, 2011 Commission meeting; a referral to the Land Use and Development Committee to discuss the automatic stay provisions of City Code Section 118-137. Please place on the February 9, 2011 Commission meeting a referral to the Land Use and Development Committee to discuss the automatic stay provisions of City Code Section 1 18-137. "This section provides for a stay of all proceedings in furtherance of the action appealed from, while an appeal to the Board of Adjustment of a related administrative decision is being reviewed. The use of this stay provision has recently been brought to our attention that justifies its being reviewed by the City Commission." Please contact my office at ext. 7106 if you have any questions. JL/er Vk'( ( N(' f'. Y(N111lk:d hi I.V(Nk1 fkl .,;YLC'111 771 FAI&W S('Ia1C(: (Ifki 301.;iy 11 f .1P 04KI I)%:. VI-VX; (Nid LAn N.: Ma v'11f(1, +1 h(y) I.r51. r.i tY►llil.'.1. /?'j 30 m MIAMI BEACH OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM TO: Jorge Gonzalez, City Manages FROM: Michael Gbngora, vice Mayor DATE: February 1, 2011 suma: Referral Item for February 9 Commission Meeting Please place on the February 9 Commission meeting consent agenda a referral to the Land Use Committee for a discussion on automatic stays pursuant to Code Section 118 -136 and Section 118 -137. If you have any questions please feel free to contact my aide Diana Fontani at ext 6087. MG/df 31 NE THURSDAY, OCTOBER 6, 2011 1 13NE . ........ _ .. m MIAMIBEACH CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARINGS NOTICE IS HEREBY given that second readings and public hearings will be held by the Mayor and City Commission of the`6�rFy of Miami Beach, Florida, in the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on WEDNESDAY, OCTOBER 19thT ", 2011, to consider the following: 10:15 a.m. . s Amendments To The Roofing Material Ordinance Ordinance Amending The Land Development Regulations Of The Code Of The City Of Miami Beach, By Amending Chapter 142, "Zoning Districts And Regulations ", Article IV, "Supplementary District Regulations ", Section 142 -875 "Roof Replacements" To ModifyAnd Expand The-Requirements For Roofing Materials In All Districts. Inquiries may be directed to the Planning Department at (305) 673 -7550. X0:20 aim. Stay Of Work And Proceedings On Appeal: Ordinance Amending The Land Development Regulations Of The City Code By Amending Chapter 118, "Administrative And Review Procedures," Article 11, "Boards," Division 5, "Board Of Adjustment," Section 118 -137, "Stay Of Work And Proceedings On Appeal," Clarifying And Amending The Stay Provisions Applicable To Matters On Appeal To The Board Of Adjustment. Inquiries may be directed to the Planning Department at (305) 673 -7550. 10:25 a.m. Ordinance Amending Chapter 10 Of The Miami Beach City Code Entitled "Animals," By Amending Section 10 -11, Entitled "Running At Large Prohibited" By Extending The Pilot Program Off -Leash Area For Dogs In South Pointe Park Until January 1, 2012 And By Adding Two (2) Hours In The Evening From 5:00 p.m. To 7 :00 p.m. On Monday Through Friday; Providing For An Off -Leash Area On The Par 3 Golf Course From Sunrise To 9:00 A.M. Daily And From 5 p .m To 7:00 p.m On Monday Through Friday Until Construction Commences On The Par 3 Golf Course Inquiries may be directed to the Parks and Recreation Department at (305) 673 -7730. 10:30 a.m. Minimum Unit Size And Parking Requirements For Affordable Housing Protects_ An Ordinance Amending The Code Of The City Of Miami Beach, By Amending Chapter 130 "Off- Street Parking," Section 130 -32 "Off- Street Parking Requirements For Parking District No. 1," And Section 130 -33 "Off- Street Parking Requirements For Parking Districts Nos. 2, 3, And 4," By Adding Parking Requirements For Housing For Low And /Or Moderate Income Non-Elderly Persons; Chapter 142 "Zoning Districts And Regulations," By Amending Article IV. "Supplementary District Regulations," By Amending Division 6. "Housing For Low And /Or Moderate Income Elderly Persons," By Including Non - Elderly Persons In The Regulations; Amending. Section -142 -1181, "Purpose," Section 142 -1182 "Definitions," Section 142- 1183, "Unit Size "' And Section 142 -1184 "Mandatory Criteria;" Amendirig`Division 3. "Residential Multifamily Districts," Subdivision II. "RM -1 Residential Multifamil.y Low Intensity" Subdivision IV "RM -2 Residential Multifamily, :Medium Intensity," Subdivision V. "RM -3 Residential Multifgmily, High Intensity," Division 4.. CD -1 Commercial, Low Intensity District," Division 5. "CD -2 Commercial, Medium Intensity District," Division 6. "CD -3 Commercial, -High .Intensity- District," And Division 18. `PS Performance Standard District," By Including References To Division 6. "Housing For Low And /Or Moderate Income Non- Elderly And Elderly Persons." Inqulnes may be directed to the Planning Department at (305) 673 -7550. 10:35 a.m. Recycling Ordinance: An Ordinance Amending Chapter 90 Of The Miami Beach City Code, Entitled "Solid Waste," By Amending The Definitions In Article 1, Entitled "in General," By Amending Section •90 -2, Entitled "Definitions'; By Amending Article II, Entitled "Administration" By Amending The Penalties For Solid Waste Violations And To Provide Provisions And Penalties Relative To Recycling For Multifamily Residences And Commercial Establishments; By'Creating Article V, To Be Entitled "Citywide Recycling Program For Multifamily Residences And Commercial Establishments," To Provide Provisions For Recycling Requirements And Enforcement, A Public Education Program, A Warning Period, An Enforcement Date, Collector Liability, A "Red Tag" Noticing System, Penalties, And Special Master Appeal Procedures. - Inquiries may be directed to the Public Works Department at (305) 673 -7616. INTERESTED PARTIES are invited to appear at this meeting, or be represented by an agent, or to express their views in writing addressed to the City Commission, c/o the City Clerk, 1700 Convention Center Drive, 1st Floor, City Hall, Miami Beach, Florida 33139 Copies of these ordinances are available for public inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 1st Floor, City Hall, and Miami Beach, Florida 33139 This meeting may be continued and under such circumstances additional legal notice would not be provided. Robert E. Parcher, City Clerk City of Miami Beach Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that. if a person decides to appeal any decision made by the City Commission with respect to any matter considered at its meeting or its hearing, such person must ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in accessible format, sign language interpreters, information on access for persons with disabilities, and/ or any accommodation to review any document or participate in any city- sponsored proceeding, please contact (305) 604 -2489 (voice), (305)673- 7218(TTY) five days in advance to initiate your request TTY users may also call 711 (Florida Relay Service) Ad #670