98-3133 ORD
ORDINANCE NO.
98-3133
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING COMPREHENSIVE ZONING
ORDINANCE NO. 89-2665 BY AMENDING SECTION 18, ENTITLED "DESIGN
REVIEW BOARD, SECTION 18-2, ENTITLED "DESIGN REVIEW
PROCEDURES", BY CORRECTING THE TIME PERIOD FOR FILING AN
APPEAL AND CONFIRMING SUCH PERIOD COMMENCES UPON
RENDITION OF AN ORDER, BY MODIFYING THE DEFINITION OF
"AFFECTED PERSON" FOR PURPOSES OF FILING AN APPEAL AND BY
CLARIFYING THAT AN APPEAL MUST BE FILED ON BEHALF OF A
NAMED APPELLANT; AMENDING SECTION 19, ENTITLED "HISTORIC
PRESERVATION BOARD AND HISTORIC DISTRICT REGULATIONS", BY
CORRECTING THE TIME PERIOD FOR FILING AN APPEAL AND
CONFIRMING SUCH PERIOD COMMENCES UPON RENDITION OF AN
ORDER, BY MODIFYING THE LIST OF PERMITTED APPELLANTS,
INSERTING A DEFINITION FOR "AFFECTED PERSON" AND CLARIFYING
THAT AN APPEAL MUST BE FILED ON BEHALF OF A NAMED
APPELLANT; PROVIDING FOR INCLUSION IN THE ZONING ORDINANCE,
REPEALER, SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, the City Commission wishes to amend Comprehensive Zoning Ordinance No.
89-2665 to: (i) correct the period for filing appeals of decisions of the Design Review Board, Joint
Design ReviewIHistoric Preservation Board and the Historic Preservation Board to confirm that such
period commences to run upon rendition of an order, (ii) amend the list of appellants authorized to
bring an appeal of decisions by the referenced boards to insure that only a party with a substantial
interest may file an appeal, and (iii) clarify that appeals must be filed by or on behalf of a named
appellant.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. AMENDMENTS TO SECTION 18 ENTITLED "DESIGN REVIEW BOARD".
That Subsections 18-2.J, entitled "Rehearings" and 18-2.K, entitled "Review of Design
Review Decisions" of Section 18-2, entitled "Design Review Procedures" of Zoning Ordinance 89-
2665 of the City of Miami Beach, Florida, are hereby amended as follows:
18-2 Design Review Procedures
*
*
*
J. Rehearings
The Design Review Board may hear a Petition for Rehearing by any person
identified in paragraph :JK below. The Board may rehear a case, take
additional testimony and either reaffirm their previous decision or issue a
new decision reversing or modifying their previous decision. The Petition
for Rehearing must demonstrate to the Board that (1) there is newly
discovered evidence which will probably change the result if a rehearing is
granted, or (2) the Board has over-looked or failed to consider something
which renders the decision issued erroneous. A Petition for Rehearing must
be filed vv'ithin fi:fte~n (15) clft).s of the filing of the last -v\Tittcn order issued
in the ease on or before the fifteenth (15th) day after the date of rendition
of the Board's order. For pw:poses of this Section 18. the "date of rendition"
shall be the date upon which a si~ned. written order is filed with the Board's
clerk. and an order shall be deemed "filed" when a fully executed order is
returned to, and is in the possession of. the clerk. An order will issue on any
petition for rehearing. '"
K. Review of Design Review Decisions
1. The Applicant; or the City Manager on behalf of the City Administration;
or an affected person or, in the case of Historically Significant Buildings,
Miami Design Preservation League and Dade Heritage Trust may seek
review of any order of the Design Review Board by the City Commission,
except that orders granting or denying a request for rehearing shall not be
reviewed by the Commission. For purposes of this Section, "affected
person" shall indud~ but shall not b~ limited to mean either: (i) a person
owning property within 375 feet of the Applicant's project reviewed by the
Board. or (ii) a person that appeared before the Desi~n Review Board
(directly or represented by counsel), and whose appearance is confirmed in
the record of the Desi~n Review Board's public hearin~(s) for such project.
The review shall be based on the record of the hearing before the Design
Review Board, shall not be a de novo hearing, and no new, additional
testimony shall be taken. The request shall be in writing. shall be by or on
behalf of a named appellant(s ). and shall be submitted to the Historic
Preservation and Urban Design Director vv'ithin twcnt) (20) days of the date
on or before the twentieth (20th) day after the date of rendition of the
Board's order. on ~\'hich th:~ DOMd reached a decision on Ml application.
However, in the event that a Petition for Rehearing is filed pursuant to
2
subparagraph I above, the time for filing a request shall be hvcnty (20) days
from the date of the DOM'd's ruling on or before the twentieth (20th) day
after the date of rendition of the Board's order on the Petition... or from lm)"
rehearing which may be held. Within thirty (30) days of receipt of the
request, the Historic Preservation and Urban Design Director shall place the
request for review on the City Commission agenda. The City Commission
shall set a date and time for a hearing. The hearing shall be set for a date
which is within forty-five (45) days of receipt of the request for review by
the Director. Notice of the review shall be according to subparagraph D
herein. 52,133
2. In order to reverse, or remand for amendment, modification or rehearing,
any decision of the Design Review Board, the City Commission shall find
that the Design Review Board did not do one of the following: 133
a. Provide procedural due process,
b. Observe essential requirements oflaw, or
c. Base its decision upon substantial competent evidence.
In order to reverse, or remand a 517th vote of the City Commission is
required. The City Commission's decision shall be set forth in a written
Order which shall be promptly mailed to all parties to the review. 133
3. Appeal from a decision of the City Commission shall be to a court of
competent jurisdiction by petition for writ of certiorari in accordance with
the Florida Rules of Appellate Procedure. 52,133
*
*
*
SECTION 2. AMENDMENTS TO SECTION 19 ENTITLED "HISTORIC
PRESERVATION BOARD AND HISTORIC DISTRICT REGULATIONS".
That Subsection 19-13.A and B, entitled "Rehearings" and "Appeals", respectively, of
Section 19-13, entitled "Rehearings and Appeals" of Zoning Ordinance 89-2665 of the City of
Miami Beach, Florida, is hereby amended as follows:
19-13 REHEARINGS AND APPEALS 121
A. Rehearings
The Historic Preservation Board or Joint Design ReviewIHistoric Preservation Board may
3
consider a Petition for Rehearing by the Applicant, the owner(s) of the subject property, the
City Manager, an ~grieved pMt) affected person, Miami Design Preservation League, or
Dade Heritage Trust. For pw:poses of this section. "affected person" shall mean either: (i)
a person ownin~ property within 375 feet of the Applicant's project reviewed by the Board,
or (ii) a person that appeared before the Board (directly or represented by counsel), and
whose appearance is confirmed in the record of said Board's public hearin~(s) for such
project. The Petition for Rehearing must demonstrate to the Board that (1) there is newly
discovered evidence which is likely to be relevant to the decision of the Board, (2) the
Board has over-looked or failed to consider something which renders the decision issued
erroneous, or (3) the Board's action or order:
a. took place after May 11, 1995 and is actionable under the Bert J. Harris, Jr.
Private Property Rights Protection Act, Section 70.001, et. seq., Florida
Statutes (referred to herein as the "Harris Act"). and 160
b. inordinately burdens an existing use of the Applicant's real property or a
vested right to a specific use of the Applicant's real property (referred to
herein as a "Harris Act claim"). 160
As used herein, the phrases "inordinate burden" or "inordinately burden", existing use" and
"vested right to a specific use" shall have same meanings ascribed to such phrases within
the Harris Act. IW
A Petition for Rehearing mt:m shall be in writin~. shall be by or on behalf of a named
appellant(s), and shall be filed ".....ithin fifteen (15) dlt)'3 of the filing of the la3t dcd3ion
i33tled in 1hi3 ea3e submitted to the Historic Preservation and Urban Desi~n Director on or
before the fifteenth (15th) day after the date of rendition of the Board's order; however, in
cases where a condition imposed by the Board is not followed by the Applicant or is
incapable of being done within this 15 day time frame, a Petition for Rehearing may be
filed within sixty (60) days of the date of rendition of the dcd3ion ~ imposing the
condition. For pw:poses of this Section 19. the "date of rendition" shall be the date upon
which a si~ned. written order is filed with the Board's clerk. and an order shall be deemed
"filed" when a fully executed order is returned to, and in the possession of, the clerk. In the
event the Petition is based on a Harris Act claim, the Petition shall include the following
documentation which shall be submitted no later than fifteen (15) days after the submission
of the Petition for Rehearing:
*
*
*
B. Appeals
1. The Applicant, 'fthe owner(s) of the subject property, the City Manager, Miami
Design Preservation League, Dade Heritage Trust, or a party aggricv'cd by a
4
ded3ion of the I Ii3tOrit: Prc3t:rvation DoMd Of Dt:3ign R-e v it: vv ,II Ii3torit: Prc3crvation
B6Md an affected person may appeal the Board's decision to a Special Master
appointed by the City Commission. For pru:poses of this section. "affected person"
shall mean either: (i) a person ownin~ property within 375 feet ofthe Applicant's
project reviewed by the Board. or (ii) a person that appeared before the Board
(directly or represented by counsel). and whose appearance is confirmed in the
record of said Board's public hearin~(s) for such prQject. The appeal shall be based
on the record of the hearing before the Board, shall not be a de novo hearing, and
no new, additional testimony shall be taken. The appeal shall be in writing....shall
be by or on behalf of a named appellant(s), and shall be submitted to the Historic
Preservation and Urban Design Director 'vvithin twenty (20) dlt)'3 of the date: on
vviikh the DOM'd reaehe:d B. dcci3ion on an application. on or before the twentieth
(20th) day after the date of rendition of the Board's order. However, in the event
that a Petition for Rehearing is filed pursuant to subparagraph A above, the time for
filing an appeal to the Special Master shall be tvvent) (20) day 3 from the date oftht:
DOM'd'3 ruling on or before the twentieth (20th) day after the date of rendition of the
Board's order re~ardin~ the Petition.. or from fm)' rehcM'ing 'vvhie:h may be held.
Within thirty (30) days of receipt of the appeal, the Historic Preservation and Urban
Design Director shall submit the appeal to the Special Master who shall set a date
and time for hearing the appeal. Notice requirements for the hearing shall be
identical to the notice requirements for the original decision upon which the appeal
is based.
2. In order to reverse, amend, or modify any decision of the Board, the Special Master
shall find that the Board did not do one of the following:
a. provide procedural due process,
b. observe essential requirements oflaw, or
c. base its decision upon substantial competent evidence.
Within ten (10) days of the date of the hearing the Special Master shall issue a
written Order setting forth his/her decision, which shall be promptly mailed to all
parties to the appeal.
3. Special Masters appointed to hear appeals pursuant to this Subsection shall be
attorneys who are members in good standing of the Florida Bar and have expertise
in the area of historic preservation. Special Masters shall serve terms of three (3)
years, provided however, that they may be removed without cause upon a majority
vote of the City Commission. Compensation for Special Masters shall be
determined by the City Commission.
5
4. An applicant, the owner(s) of the subject property, the City Manager, Miami Design
Preservation League, Dade Heritage Trust, or a pMt) aggrie-;ecl b)" a deci~ion of the
Special Mft~tcr an affected person may appeal the decision to a court of competent
jurisdiction by petition for writ of certiorari.
SECTION 3. INCLUSION IN ZONING ORDINANCE NO. 89-2665.
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 City of Miami Beach Zoning Ordinance No.
89-2665 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 4. REPEALER.
That all Ordinances or parts of Ordinances in conflict herewith be and the same are hereby
repealed.
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. EFFECTIVE DATE.
This Ordinance shall take effect on the 25th day of
July
,1998.
PASSED and ADOPTED this 15th day of
July , 1998.
ATTEST:
111
MAYOR
~~~~
CITY CLERK
1st reading 6/17/98
2nd reading 7/15/98
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
1Al h fA illI
City Attomey
1/ /;-
Dafe'
6
~ITY OF MIAMI BEACH
~ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
Ittp:\\ci ,m iam i-beach. fl. us
COMMISSION MEMORANDUM NO. tl8 - 9 ~
TO:
Mayor Neisen O. Kasdin and
Members of the City C mission
DATE: July 15, 1998
SUBJECT:
Second Re ding Public Hearing - An Ordinance of the Mayor and City
Commission ofthe City of Miami Beach, Florida, Amending Comprehensive
Zoning Ordinance No. 89-2665 by Amending Section 18, Entitled "Design
Review Board, Section 18-2, Entitled "Design Review Procedures", by
Correcting the Time Period for Filing an Appeal and Confirming Such Period
Commences upon Rendition of an Order, by Modifying the Definition of
"Affected Person" for Purposes of Filing an Appeal and by Clarifying That an
Appeal must Be Filed on Behalf of a Named Appellant; Amending Section 19,
Entitled "Historic Preservation Board and Historic District Regulations", by
Correcting the Time Period for Filing an Appeal and Confirming Such Period
Commences upon Rendition of an Order, by Modifying the List of Permitted
Appellants, Inserting a Definition for" Affected Person" and Clarifying That
an Appeal must Be Filed on Behalf of a Named Appellant; Providing for
Inclusion in the Zoning Ordinance, Repealer, Severability and an Effective
Date.
FROM:
Sergio Rodriguez
City Manager
RECOMMENDATION
The Administration recommends that the City Commission adopt the proposed Ordinance upon
second reading public hearing.
BACKGROUND
This is an amendment to the Zoning Ordinance regarding two issues: (1) the time period for filing
an appeal of decisions of the Design Review Board, Joint Design ReviewIHistoric Preservation
Board and the Historic Preservation Board, and (2) which parties have standing to appeal.
This amendment to the Ordinance was originally referred to the Planning Board by the City
Commission on February 18, 1998, at the request of Commissioner Jose Smith. The City
Attorney's Office drafted the amendment. It has been concluded that the existing language
regarding the timeframe for appeals of decisions of the Design Review Board, Joint Design
ReviewIHistoric Preservation Board and the Historic Preservation Board, as now contained in the
Zoning Ordinance, is confusing and inconsistent with generally accepted principles of appellate
practice. The proposed amendment is intended to bring the language of the Zoning Ordinance into
AGENDA ITEM KS E
DATE l-IS-~S
conformity with the current practice. In addition, the amendment clarifies the issues regarding
proper parties for filing appeals, (i.e. standing to appeal).
The Planning Board held a public hearing on May 26, 1998, and voted 6-0, to recommend approval
of the proposed Ordinance with further amending language. The Planning Board recommended
adding a provision to allow persons who have written, signed statements read into the record by
a designated person during a public hearing to be included in the definition of those who have
standing to appeal.
On June 17, 1998, the Ordinance was approved on first reading (7-0). More specifically, the
original version of the Ordinance as drafted by the City Attorney's Office was approved; the
Planning Board's recommendation to broaden the provisions of the Ordinance was not accepted.
ANALYSIS
1. T1meframe for Rehearings
Currently, the Ordinance requires that a Petition for Rehearing of decisions of the Design Review
Board, Joint Design ReviewIHistoric Preservation Board and the Historic Preservation Board must
be filed "within fifteen (15) days of the filing of the last written order issued in the case". The new
language will clarify the issue by requiring that Petitions for Rehearing must be filed "on or before
the fifteenth (15th) day after the date of rendition of the Board's order. For purposes of this Section
18, the "date of rendition" shall be the date upon which a signed, written order is filed with the
Board's clerk, and an order shall be deemed "filed" when a fully executed order is returned to, and
is in the possession of, the clerk."
This language clarifies that requests for rehearings must be made within 15 days of the rendition
of the Board's order. While this is currently standard practice, the amendment specifies and makes
clear that this is the case.
Regarding appeals of decisions of the respective Boards, the existing language specifies the
timeframe for appeal as "within twenty (20) days of the date on which the Board reached a decision
on an application". The new language changes this to "on or before the twentieth (20th) day after
the date of rendition of the Board's order", thereby clarifying the exact length of time allowed and
specifying that this timeframe runs from the actual rendition of the Board's final order. This
corresponds to existing practice.
2. Standing to Appeal
With regard to the standing for appeal, the Zoning Ordinance allows requests for appeals for the
referenced boards from "affected persons". The current definition of "Affected persons" includes,
but is not limited to persons owning property within 375 feet of the project. The new language will
further define affected persons as being either: (i) persons owning property within 375 feet of the
project; or, (ii) a person that appeared before the Design Review Board (directly or represented by
counsel), and whose appearance is confirmed in the record of the Design Review Board's public
hearing.
The new language standardizes the definition of "affected persons", and limits appeals of decisions
of the referenced boards to those affected persons. This policy should have the effect of insuring
that those who wish to have recourse to appeal a matter actually attend the meeting (or meetings)
during which said matter was heard and actually appear before the Board.
CONCLUSION
Based on the foregoing, the Administration has concluded that the City Commission should adopt
the proposed amendment to Zoning Ordinance 89-2665 upon second reading public hearing, as it
will clarify existing procedures with regard to rehearings and appeals of design review and
historic preservation decisions made by the respective Boards.
SR&\!6.\RGL\rgl
F:\PLAN\$ALL\CC _MEMOS\ 1339CMM2,98