2017-4076 Ordinance DISCONTINUANCE OF NONCONFORMING USES
ORDINANCE NO. 2017-4076
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
118, "ADMINISTRATION AND REVIEW PROCEDURES",
ARTICLE IX., "NONCONFORMANCES," TO ADD SECTION
118-390 "PURPOSE/APPLICABILITY," AND AMEND SECTION
118-394, "DISCONTINUANCE OF NONCONFORMING USES"
TO DEFINE THE PROCESS FOR RETAINING LEGAL NON-
CONFORMING USES AND ESTABLISH GUIDELINES FOR
DETERMINING WHETHER THERE HAS BEEN AN
INTENTIONAL AND VOLUNTARY ABANDONMENT OF A
NONCONFORMING USE; PROVIDING FOR CODIFICATION,
REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS, over time, amendments to the City Code have made certain uses prohibited
in zoning districts throughout the City; and
WHEREAS, due to amendments to the City Code, there are existing uses that have
become legal non-conforming; and
WHEREAS, the City Code allows existing legal non-conforming uses to remain and
change ownership and tenancy as long as the use remains active and does not become idle for
a period of time set forth in the City Code; and
WHEREAS, the City Code lacks adequate specificity regarding the requirements for
determining if a use has remained active or become idle; and
WHEREAS, the Mayor and the City Commission desire to standardize the time frame
set forth in the City Code for legal non-conforming uses to obtain permits to repair or renovate
their premises; and
WHEREAS, the amendments set forth below are necessary to accomplish the above
objectives.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA.
SECTION 1. Chapter 118, "Administration and Review Procedures," Article IX,
"Nonconformances," is hereby amended as follows:
CHAPTER 118.
ADMINISTRATION AND REVIEW PROCEDURES
* * *
ARTICLE IX. NONCONFORMANCES
118-390 Purpose/Applicability.
1. Nothing contained in this article shall be deemed or construed to prohibit the
continuation of a legally established non-conforming use, structure, or occupancy, as those
terms are defined in Sections 114.1. The intent of this Section is to encourage nonconformities
to ultimately be brought into compliance with current regulations. This section shall govern in
the event of conflicts with other regulations of this code pertaining to legally established
nonconforming uses, structures, and occupancies.
2. The term "nonconformity" shall refer to a use, building, or lot that does not comply with
the regulations of this article. Only legally established nonconformities shall have rights under
this section.
3. For purposes of this section, the term "expansion" shall mean an, addition, enlargement,
extension, or modification to a structure that results in an increase in the square footage of the
structure, an increase in the occupant content or an increase in the number of seats.
4. For the purposes of this section, "legally established" shall apply to the following
circumstances:
a. A lot that does not meet the lot frontage, lot width, lot depth, and/or lot area requirements
of the current zoning district, provided that such lot met the regulations in effect at the
time of platting.
b. A site or improvement that is rendered nonconforming through the lawful use of eminent
domain, an order of a court of competent jurisdiction, or the voluntary dedication of
property.
c. An existing use which conformed to the code at the time it was established.
d. A building, use and/or site improvement that had received final approval through a public
hearing pursuant to this chapter; or through administrative site plan review and had a
valid building permit.
e. There shall be no variance of the nonconforming use(s) section of this Article IX.
Sec. 118-394. Discontinuance of nonconforming uses.
(1) A nonconforming use may not be enlarged, extended, intensified, or changed, except for
a change to a use permitted in the district in which the property is located.
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(2) If there is an intentional and voluntary abandonment of a nonconforming use for a period
of more than 183 366 consecutive days, or if a nonconforming use is changed to a conforming
use, said use shall lose its nonconforming status. Thereafter, subsequent occupancy and use
of the land, building, and/or structure shall conform to the regulations of the districts in which the
property is located and any structural alterations necessary to make the structure or building
conform to the regulations of the district in which the property is located shall be required. An
intentional and voluntary abandonment of use includes, but is not limited to, vacancy of the
building or structure in which the nonconforming use was conducted, or discontinuance of the
activities consistent with or required for the operation of such nonconforming use.
(3) The Planning Director or designee shall evaluate the evidence of an intentional and
voluntary abandonment of a nonconforming use and determine the status of the nonconforming
use. In order for a nonconforming use to retain a nonconforming status, the evidence,
collectively, shall at a minimum demonstrate at least one of the following:
1. Continual operation of the use;
2. Continual possession of any necessary and valid state and local permits, building
permits, licenses, or active/pending application(s) for approval related to prolonging
the existence of the use.
Evidence of an intentional and voluntary abandonment of a nonconforming use may include, but
shall not be limited to:
1. Public records, including those available through applicable City of Miami Beach,
Miami-Dade County, and State of Florida agencies;
2. Utility records, including water/sewer accounts, solid waste accounts, and electrical
service accounts;
3. Property records, including executed lease or sales contracts;
SECTION 2. REPEALER.
All ordinances or parts of ordinances and all section and parts of sections in conflict
herewith are hereby repealed.
SECTION 3. 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 re-numbered or re-lettered to accomplish
such intention; and that the word "ordinance" may be changed to "section" or other appropriate
word.
SECTION 4. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
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SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this / day of /m'IQirc% , 2017.
f;
Philip Levine /
Mayor /
ATTEST:
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//jr1( 3/4 n
Rafael E. Granado --• 1,Th'APPROVED AS TO
City Clerk ' FORM & LANGUAGE
ac FOR EXECUTI•
Verified By:
Thomas R. Mooney, AICI ` � `' -_/ r/ •
Planning Director J ' ttorney Dote
First Reading:
g February 8, 2017
Second Reading: March 1, 2017
(Sponsored by Commissioner Michael Grieco)
Underline denotes new language
denotes removed language
T:\AGENDA\2017\2-February\Planning\Discontinuance of Non-Conforming Uses-First Reading ORD.docx
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Ordinances - R5 F
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: March 1, 2017
10:20 a.m. Second Reading Public Hearing
SUBJECT: DISCONTINUANCE OF NONCONFORMING USES:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 118, "ADMINISTRATION AND
REVIEW PROCEDURES", ARTICLE IX., "NONCONFORMANCES," TO ADD
SECTION 118-390 "PURPOSE/APPLICABILITY," AND AMEND SECTION 118-
394, "DISCONTINUANCE OF NONCONFORMING USES" TO DEFINE THE
PROCESS FOR RETAINING LEGAL NON-CONFORMING USES AND
ESTABLISH GUIDELINES FOR DETERMINING WHETHER THERE HAS BEEN
AN INTENTIONAL AND VOLUNTARY ABANDONMENT OF A NONCONFORMING
USE; PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN
EFFECTIVE DATE.
RECOMMENDATION
The Administration recommends that the City Commission adopt the Ordinance.
ANALYSIS
BACKGROUND
On July 13, 2016, at the request of Commissioner Michael Grieco, the City Commission referred this
request to the Land Use and Development Committee (Item R5I). On July 20, 2016, the Land Use
and Development Committee discussed the item and continued the discussion to September 21,
2016 by acclamation. On September 21, 2016 the item was continued to a date certain of October
26, 2016.
On October 26, 2016 the Land Use Committee discussed the revised draft of the Ordinance, and
recommended that the City Commission refer the item to the Planning Board. On November 9, 2016,
the City Commission referred the proposed Ordinance to Planning Board (Item C4 C).
PLANNING ANALYSIS
When the City Code is amended in a way that prohibits a use or restricts the use in a zoning district,
those existing uses in the district that are not conforming to the new regulations that are pre-existing
become legal non-conforming uses. Legal non-conforming uses are allowed to continue their
operation as long as the use remains active and does not cease operations for a time period set forth
in the City Code Section 118-394. The current language in the City Code regarding the
discontinuance of a non-conforming use is stated below:
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Sec. 118-394. -Discontinuance of nonconforming uses.
No building, structure, equipment, fixtures or land, or portion thereof used in whole or in part
for a nonconforming use which remains idle or unused for a continuous period of six months,
or for 18 months during any three-year period whether or not the equipment or fixtures are
removed, shall again be used, except in conformity with the regulations of the district in
which such building or land is located.
With the recent amendments to the City Code, such as prohibited uses near residential zoning
districts and the operating hours of alcoholic beverage establishments, issues have arisen with
regard to those businesses that are already in operation.
Currently, in order to establish the idle status of a non-conforming use, staff researches the BTR and
building permit history. If the BTR has not been expired for more than six (6) months, or a building
permit has been issued within the six months that tolls the time until the building permit was finalized,
then the non-conforming use would be allowed to continue.
The previous proposal to increase the time frame for legal non-conforming uses from six (6) months
to eighteen (18) months, as recommended by the Land Use Committee, was amended to a maximum
of twelve (12) months (366 days) by the City Commission at the time of referral on November 9,
2016. In this regard, 366 days is a reasonable amount of time to find a tenant, contract with design
professionals, apply for building permits and obtain a building permit. The increase in the amount of
time might help in the case of tenant disputes as well.
As a point of clarification, the reason staff uses the application for a renovation or repair of a property
to toll the time limit, although that provision is not explicitly written into the current ordinance, stems
from the case of City of Miami Beach v. State ex rel. Parkway Co., 174 So. 443 (Fla. 1937). In that
case, the Florida Supreme Court held that a use was not discontinued for the purpose of the Miami
Beach ordinance if the use had been shut down for the purpose of renovations or repairs.
PLANNING BOARD REVIEW
On December 20, 2016, the Planning Board transmitted the proposed Ordinance Amendment to the
City Commission, with a favorable recommendation. The Planning Board also recommended minor
text changes, which have been incorporated into the draft ordinance for First Reading.
UPDATE
The subject ordinance was approved at First Reading on February 8, 2017, subject to the idle
time period for a non-conforming use being reduced from the previously proposed 12 months
(366 days) to 6 months (183 days). This change did not affect the Ordinance title and is
included in the version for Second Reading.
CONCLUSION
The Administration recommends that the City Commission adopt the Ordinance.
Legislative Tracking
Planning
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Sponsor
Commissioner Michael Grieco
ATTACHMENTS:
Description
o Form Approved Ordinagnce-2nd Read
o Ad
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MIA111NFR1lDLDN NEIGIIBORS I 21NE
' v' BEACH CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING
ORDINANCE AMENDING
DISCONTINUANCE OF
NONCONFORMING USES
March 1, 2017
NOTICE IS HEREBY given that a Second Reading / Public Hearing will be heard by the Mayor
and City Commission of the City of Miami Beach,Florida,in the Commission Chamber,3rd Floor,
City Hall, 1700 Convention Center Drive,Miami Beach,Florida,on March 1,2017 at 10:20 a,m,or
as soon thereafter as the matter can be heard,to consider:
DISCONTINUANCE OF NONCONFORMING USES:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AMENDING CHAPTER 118, 'ADMINISTRATION AND REVIEW PROCEDURES",
ARTICLE IX.,'NONCONFORMANCES,"TO ADD SECTION 118-390*PURPOSE/APPLICABILITY,"
AND AMEND SECTION 118-394, 'DISCONTINUANCE OF NONCONFORMING USES" TO
DEFINE THE PROCESS FOR RETAINING LEGAL NONCONFORMING USES AND ESTABLISH
GUIDELINES FOR DETERMINING WHETHER THERE HAS BEEN AN INTENTIONAL AND
VOLUNTARY ABANDONMENT OF A NONCONFORMING USE; PROVIDING FOR CODIFICATION,
REPEALER,SEVERABILITY,AND AN EFFECTIVE DATE.
This Ordinance is being heard pursuant to Section 2.05 of the City Charter and §116,047 FS.
Inquiries may be directed to the Planning Department at 305.673,7550,
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,1'Floor,City Hall,Miami Beach,Florida 33139.This Item Is available
for public inspection during normal business hours In the City Clerk's Office, 1700 Convention
Center Drive, V' Floor, City Hall, Miami Beach, Florida 33139. This item may be continued,
and under such circumstances,additional legal notice need not be provided.
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 alternate format,sign language Interpreter(five-day notice required),
Information on access for persons with disabilities, and/or any accommodation to review any
document or participate in any City-sponsored proceedings, call 305,604.2489 and select 1
for English or 2 for Spanish,then option 6;TTY users may call via 711 (Florida Relay Service).
Members of the public may present audio/visual (AV) materials relating to Agenda Items at
City Commission meetings held in the Commission Chamber by utilizing the City's AV equipment,
provided that materials are submitted to the Department of Marketing and Communications by
8:30 A.M., one(1) business day prior to the meeting.Advance submittal of a presentation will
allow the Communications Department to plan for the use of the appropriate AV equipment.
AV materials may be submitted via email at communicatloneOmiamlbeachfl.gov;or hand delivered
In a Jump drive, CD or DVD to: Attention: Department of Marketing and Communications,
1701 Meridian Avenue,Fifth Floor.Miami Beach,FL 33139.Presentations,videos or links must
Include a label noting the name or group, contact person, daytime telephone number, email
address,description/title of the presentation and Agenda Item Title as well as the Agenda Item
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.ayi and.mov.(Note that.pdf is the preferred format for PowerPoint presentations.)
Rafael E.Grenado,City Clerk
City of Miami Beach
Ad 1280
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