Ordinance 96-3047 ORDINANCE NO. 96-3047
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 16,
ENTITLED "BOARD OF ADJUSTMENT",AMENDING SUBSECTION 16-8,
ENTITLED "POWERS AND DUTIES", CREATING IN SUBSECTION 16-
8(A)9 ESTABLISHING PROCEDURES TO EFFECTUATE THE
REVOCATION OR MODIFICATION OF A VARIANCE ISSUED BY THE
BOARD OF ADJUSTMENT AND FEES AND ENFORCEMENT ACTIONS
RELATED THERETO; BY AMENDING SECTION 17, ENTITLED
"PLANNING BOARD", AMENDING SUBSECTION 17-4, ENTITLED
"CONDITIONAL USE PROCEDURES",INCLUDING IN SUBSECTION 17-
4(D) PROCEDURES TO EFFECTUATE THE REVOCATION OR
MODIFICATION OF A CONDITIONAL USE APPROVAL ISSUED BY
THE PLANNING BOARD AND FEES AND ENFORCEMENT ACTIONS
RELATED THERETO; AMENDING SUBSECTION 17-6, ENTITLED
"DIVISION OF LOTS/LOT SPLIT APPEAL PROCEDURES", CREATING
SUBSECTION 17-6(D), ENTITLED "REVOCATION PROCEDURES",
ESTABLISHING PROCEDURES TO EFFECTUATE THE REVOCATION,
OR MODIFICATION OF A LOT SPLIT APPROVAL ISSUED SUBJECT TO
COMPLIANCE WITH SPECIFIED CONDITIONS AND CREATING
SUBSECTION 17-6(E), ENTITLED "NOTICE OF PUBLIC HEARING
REQUIREMENTS", ESTABLISHING REQUIREMENTS FOR PUBLIC
NOTICE AND PROVIDING FOR INCLUSION IN THE ZONING
ORDINANCE,REPEALER, SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS,applicants have failed to comply with conditions imposed for the issuance of
variances by the Board of Adjustment,and for the issuance of conditional use approvals and lot split
approvals (based on a reversal of an administrative decision)by the Planning Board; and,
WHEREAS,the City Commission wishes to amend Comprehensive Zoning Ordinance No.
89-2665 to establish procedures for the revocation or modification of variances,conditional use and
lot split approvals by the Board of Adjustment and Planning Board,respectively, in the event any
of the conditions of a variance or approval are not satisfied, to provide for the reimbursement of
expenses of the procedures incurred by the Planning,Design and Historic Preservation Division,and
to provide for alternative enforcement actions; and
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. AMENDMENT TO SECTION 16,ENTITLED "BOARD OF ADJUSTMENT".
Subsection 16-8(A)9 of Subsection 16-8, entitled "Powers and Duties" of Section 16 of
Zoning Ordinance 89-2665 of the City of Miami Beach, Florida, is hereby created to read as
follows:
9. The Board may revoke or modify a Variance pursuant to the following procedures:
(1)the Planning& Zoning Director shall notify the applicant by certified mail of the
failure to comply with the conditions of the Variance; (2) if. after expiration of a
fifteen (15) day cure period (commencing on the date of the notice). the applicant
fails to comply with the conditions. the Planning and Zoning Director shall advise
the Board at the next meeting and the Board may consider setting a public hearing
for the purpose of examining the noncompliance issues; (3) if the Board elects to
set a public hearing,the Planning and Zoning Director shall place the matter on the
Board's agenda in a timely manner and all notice requirements imposed for Variance
applications as set forth in Section 16-4 shall be applicable, with the addition of
notice to the applicant: (4) the Board shall hold a public hearing to consider the
issue of noncompliance and the possible revocation or modification of the Variance,
and,based on substantial competent evidence. the Board may revoke the Variance,
modify the conditions thereof. or impose additional or supplemental conditions.
In determining whether substantial competent evidence exists to support revocation,
modification or the imposition of additional or supplemental conditions to the
Variance, intermittent noncompliance with the conditions,as well as the frequency.,
degree and adverse impact of such intermittent noncompliance. may be considered
by the Board.
In the event the Board takes any of the enforcement actions authorized in this
Subsection. the applicant shall reimburse the Planning. Design and Historic
Preservation Division for all monies expended to satisfy notice requirements and to
copy. prepare or distribute materials in anticipation of the public hearing. The
applicant shall not be permitted to submit a new application(for related or unrelated
matters). nor shall an application be accepted affecting the subject property (for
related or unrelated matters).for consideration by the Board of Adjustment.Planning
Board. Design Review Board, Historic Preservation Board. or the Design
Review/Historic Preservation Board until repayment in full of all monies due and
payable pursuant to the foregoing sentence.
In addition to all other enforcement actions available to the Board, based upon a
Board finding that the applicant has failed to comply with the conditions of the
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Variance,the Board may recommend that the Code Compliance Director (or his/her
successor in interest with respect to the issuance of Occupational Licenses and
Certificates of Use), in his/her discretion, revoke or suspend the Certificate of Use
for the subject property and/or the applicant's Occupational License applicable to the
business conducted at the subject property.
SECTION 2. AMENDMENT TO SECTION 17. ENTITLED "PLANNING BOARD".
[1] Subsection 17-4(D) of Subsection 17-4, entitled "Conditional Use Procedures" of
Section 17 of Comprehensive Zoning Ordinance No. 89-2665 of the City of Miami Beach, Florida,
is hereby amended as follows:
D. Compliance with Conditions
1. No Occupational License, Certificate of Use,Certificate of Occupancy,or Certificate
of Completion shall be issued until all conditions of approval have been met. The
establishment of a Conditional Use without complying with the conditions of
approval shall constitute a violation of this Ordinance and shall be subject to
enforcement procedures as set forth in Section 21-2. and as provided herein.
2. Within a reasonable time after a Conditional Use application or amendment has been
approved,the Applicant shall record the Board's action and conditions in the Public
Records of Dade County. No Building Permit, Certificate of Use, Certificate of
Occupancy, Certificate of Completion, or Occupational License shall be issued until
this regulation has been complied with.
3. The Board may revoke or modify a Conditional Use approval pursuant to the
following procedures: (1)the Planning &Zoning Director shall notify the applicant
by certified mail of the failure to comply with the conditions of the approval: (2) if,
after expiration of a fifteen (15) day cure period (commencing on the date of the
notice), the applicant fails to comply with the conditions.the Planning and Zoning
Director shall advise the Board at the next meeting and the Board may consider
setting a public hearing for the purpose of examining the noncompliance issues: (3)
if the Board elects to set a public hearing, the Planning and Zoning Director shall
place the matter on the Board's agenda in a timely manner and all notice requirements
imposed for Conditional Use applications as set forth in Section 17-4(C) shall be
applicable, with the addition of notice to the applicant: (4) the Board shall hold a
public hearing to consider the issue of noncompliance and the possible revocation or
modification of the approval, and. based on substantial competent evidence, the
Board may revoke the approval,modify the conditions thereof,or impose additional
or supplemental conditions.
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In determining whether substantial competent evidence exists to support revocation,
modification or the imposition of additional or supplemental conditions to the
approval, intermittent noncompliance with the conditions, as well as the frequency,
degree and adverse impact of such intermittent noncompliance. may be considered
by the Board.
In the event the Board takes any of the enforcement actions authorized in this
Subsection. the applicant shall reimburse the Planning. Design and Historic
Preservation Division for all monies expended to satisfy notice requirements and to
copy, prepare or distribute materials in anticipation of the public hearing. The
applicant shall not be permitted to submit a new application(for related or unrelated
matters). nor shall an application be accepted affecting the subject property (for
related or unrelated matters),for consideration by the Board of Adjustment. Planning
Board, Design Review Board. Historic Preservation Board, or the Design
Review/Historic Preservation Board until repayment in full of all monies due and
payable pursuant to the foregoing sentence.
In addition to all other enforcement actions available to the Board, based upon a
Board finding that the applicant has failed to comply with the conditions of the
approval,the Board may recommend that the Code Compliance Director (or his/her
successor in interest with respect to the issuance of Occupational Licenses and
Certificates of Use), in his/her discretion, revoke or suspend the Certificate of Use
for the subject property and/or the applicant's Occupational License applicable to the
business conducted at the subject property.
[2] Subsection 17-6(D), entitled "Revocation Procedures", of Subsection 17-6, entitled
"Division of Lots/Lot Splits Appeal Procedures" of Section 17 of Comprehensive Zoning Ordinance
No. 89-2665 of the City of Miami Beach, Florida, is hereby created to read as follows:
D. Revocation Procedures. The Board may revoke or modify a Lot Split approval
pursuant to the following procedures: (1) the Planning & Zoning Director shall
notify the applicant by certified mail of the failure to comply with the conditions of
the approval: (2) if, after expiration of a fifteen (15) day cure period (commencing
on the date of the notice). the applicant fails to comply with the conditions. the
Planning and Zoning Director shall advise the Board at the next meeting and the
Board may consider setting a public hearing for the purpose of examining the
noncompliance issues: (3) if the Board elects to set a public hearing, the Planning
and Zoning Director shall place the matter on the Board's agenda in a timely manner
and all notice requirements imposed for Lot Split applications as set forth in Section
17-6 shall be applicable,with the addition of notice to the applicant: (4) the Board
shall hold a public hearing to consider the issue of noncompliance and the possible
revocation or modification of the approval, and, based on substantial competent
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evidence, the Board may revoke the approval, modify the conditions thereof, or
impose additional or supplemental conditions.
All other provisions applicable to revocation procedures as set forth in Subsection
17-4(D) shall be applicable to revocation procedures pursuant to this Subsection 17-
6(D).
131 Subsection 17-6(E), entitled "Notice of Public Hearing Requirements", of Subsection 17-6,
entitled "Division of Lots/Lot Splits Appeal Procedures" of Section 17 of Comprehensive Zoning
Ordinance No. 89-2665 of the City of Miami Beach, Florida, is hereby created to read as follows:
E. Notice of Public Hearing Requirements. The notice of public hearing requirements
for this Subsection shall be as set forth in Subsection 17-4.C.
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.
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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 13th day of July 1996.
PASSED and ADOPTED this 3rd day of July , 1996.
ATTEST:
MAYOR
R 0 (MA,I eadLCUA.
CITY CLERK
1st reading 6/19/96
2nd reading 7/3/96
F:\PLAN\$ALL\TEMP\REVOCAT.ORD
FORM APPROVED
L AL DEPT.
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CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
COMMISSION MEMORANDUM NO.
TO: Mayor Seymour Gelber and
Members of the City Commission DATE: July 3, 1996
FROM: Jose Garcia-Pedrosa
City Manager
SUBJECT: Second Readi g Public Hearing - An Ordinance Amending
Zoning Ordinance No. 89-2665 by Amending Section 16,
Entitled "Board of Adjustment", Amending Subsection 16-8,
Entitled "Powers And Duties", Creating in Subsection
16-8 (a) 9 Establishing Procedures to Effectuate the
Revocation or Modification of a Variance Issued by the
Board of Adjustment and Fees and Enforcement Actions
Related Thereto; by Amending Section 17, Entitled
"Planning Board", Amending Subsection 17-4, Entitled
"Conditional Use Procedures", Including in Subsection
17-4 (d) Procedures To Effectuate The Revocation or
Modification of A Conditional Use Approval Issued by
the Planning Board and Fees and Enforcement Actions
Related Thereto; Amending Subsection 17-6, Entitled
"Division of Lots/Lot Split Appeal Procedures", Creating
Subsection 17-6 (d) , Entitled "Revocation Procedures",
Establishing Procedures to Effectuate the Revocation Or
Modification of a Lot Split Approval Issued Subject to
Compliance with Specified Conditions and Creating
Subsection 17-6 (e) , Entitled "Notice of Public Hearing
Requirements", Establishing Requirements for Public
Notice and Providing for Inclusion in the Zoning
Ordinance, Repealer, Severability and an Effective Date.
RECOMMENDATION
The Administration recommends that the City Commission, upon
holding a public hearing, adopt on second reading, the proposed
PAGE 1 OF 7
AGENDA ITEM f5 6
DATE 7-3-96
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amendment regarding revocation procedures for the (Zoning) Board of
Adjustment and Planning Board within Zoning Ordinance No. 89-2665 .
BACKGROUND
The Planning Board is a sponsor of this amendment to the Zoning
Ordinance which would establish procedures for the revocation or
modification of variance approvals by the Board of Adjustment and
conditional use and lot split approvals by the Planning Board,
respectively, in the event any of the conditions of said approvals
are not satisfied. The amendment would provide for the
reimbursement of expenses incurred in association with these
procedures by the Planning, Design and Historic Preservation
Division, and provide for alternative enforcement actions.
Currently, these regulations are not codified within the Zoning
Ordinance.
The proposed amending ordinance is in response to a technical
omission in the Zoning Ordinance which at the present time does not
address any revocation procedures for either the Board of
Adjustment or the Planning Board. As a matter of policy, the
Division has followed those procedures prescribed in the Board of
Adjustment By-Laws for said Board; for the Planning Board, it has
followed the same procedures as are used for approvals. In essence,
the amendment would now provide definitive regulations and
procedures for notice requirements, applicant cure times, and
possible alternative enforcement actions that the respective Boards
may consider regarding revocations or modifications of approval .
On May 28, 1996 the Planning Board held a public hearing and voted
7-0 in favor of recommending adoption of the amending ordinance
with the recommendation that the application forms for Variances,
Conditional Uses and Lot Split Approvals should be amended to
apprise applicants and owners of the subject property the possible
consequences that may be imposed for non-compliance with conditions
of approval for these requests.
On June 19, 1996 the City Commission adopted on first reading (by
a vote of 5-0) the amending ordinance, thereby affirming of the
recommendation from the Planning Board, as described above.
PAGE 2 OF 7
ANALYSIS
What follows is a section by section analysis of the proposed
amending ordinance.
Section 1 .
This section of the amending ordinance creates a new subsection
within the "Powers and Duties" subsection of Section 16 entitled
"Board of Adjustment" . The new language is summarized within the
six paragraphs below, as follows:
1 . The Planning & Zoning Director would notify the applicant
by certified mail of the failure to comply with the
conditions of the Variance; and,
2 . If, after expiration of a fifteen (15) day cure period
(commencing on the date of the notice) , the applicant
fails to comply with the conditions, the Planning and
Zoning Director would advise the Board at the next
meeting and the Board could consider setting a public
hearing for the purpose of examining the noncompliance
issues; and,
3 . If the Board elects to set a public hearing, the Planning
and Zoning Director would place the matter on the Board' s
agenda in a timely manner and all notice requirements
imposed for Variance applications as set-forth in Section
16-4 would be applicable, with the addition of notice to
the applicant; and,
4 . The Board would hold a public hearing to consider the
issue of noncompliance and the possible revocation or
modification of the Variance, and, based on substantial
competent evidence, the Board could revoke the Variance,
modify the conditions thereof, or impose additional or
supplemental conditions. In determining whether
substantial competent evidence exists to support
revocation, modification or the imposition of additional
or supplemental conditions to the Variance, intermittent
noncompliance with the conditions, as well as the
frequency, degree and adverse impact of such intermittent
noncompliance, could be considered by the Board. In the
event the Board takes any of the enforcement actions
PAGE 3 OF 7
4
authorized in this Subsection, the applicant would be
required to reimburse the Planning, Design and Historic
Preservation Division for all monies expended to satisfy
notice requirements and preparation materials required
for the public hearing; and,
5 . The applicant would not be permitted to submit a new
application (for related or unrelated matters) , nor would
an application be accepted affecting the subject property
(for related or unrelated matters) , for consideration by
the Board of Adjustment, Planning Board, Design Review
Board, Historic Preservation Board, or the Joint Design
Review/Historic Preservation Board until repayment in
full of all monies due and payable pursuant to the
revocation proceedings; and,
6 . In addition to all other enforcement actions available to
the Board, based upon a Board finding that the applicant
has failed to comply with the conditions of the Variance,
the Board could recommend that the Code Compliance
Director revoke or suspend the Certificate of Use for
the subject property and/or the applicant ' s Occupational
License applicable to the business conducted at the
subject property.
The first three segments of the paragraph above are self
explanatory and do not require further elaboration. However, the
last three segments necessitate further clarification and are
discussed below.
As proposed in segment 4 above, the Board could revoke, modify or
impose additional conditions based on substantial competent
evidence which would be provided at the revocation public hearing.
Since the burden of proof would lie with the City, the amendment
proposes the applicant would be responsible for re-reimbursement to
the City for expenditures incurred regarding the revocation
proceeding; in all likelihood, the City would not readily be able
to collect these monies. For that reason, the next segment (5)
proposes other penalties to encourage payment .
The new provisions within segment 5 above would restrict the
"applicant" and the "subject property" from submitting a new
application for related or unrelated matters for consideration
PAGE 4 OF 7
before not only the Board of Adjustment, but also, the Design
Review Board, the Historic Preservation Board, or the Joint Design
Review/Historic Preservation Board until payment of all monies due
and payable related to the revocation proceedings. This provision
is of paramount importance since the proposed regulations have the
potential to "freeze" further major development (Certificates of
Appropriateness, design, variance and conditional use approvals,
etc. that would require approval from one of these City Boards) for
the subject property until such time as the revocation monies are
paid. Ultimately, the owner of the property could be responsible
for payment of these monies since the applicant and owner are not
always the same entity. In the event the amendment is adopted, the
application forms for these various City Boards should be amended,
to not only alert the applicant, but also the owner of the subject
property of this possible situation and the resulting consequences.
The final proposed segment (6) of the paragraph takes the
revocation options available to the Board one step further. The
amendment would permit the Board to recommend to the Code
Compliance Director to proceed with revocation proceedings for the
Certificate of Use and/or Occupational License applicable to the
business conducted at the subject property. This new provision
would be especially applicable to projects with variances that were
approved for a waiver of the minimum distance requirement for the
sale of alcoholic beverages. This provision could also have
significant consequences for commercial development and residential
multi-family developments that had been granted setback variances
or other development waivers with conditions of approval imposed by
the Board. In theory, these types of development could ultimately
lose their Certificate of Use and/or Occupational License for
continued non-compliance. However, as the amendment is written,
the Board can only recommend to the Code Compliance Director that
revocation proceedings be instituted against the applicant .
Without the co-operation of the Code Compliance Director, this
provision lacks any real "teeth" . Notwithstanding the above,
provision 5 would also not be applicable to single family
residences which do not require a Certificate of Use or
Occupational License.
PAGE 5 OF 7
Section 2 .
This section of the amending ordinance creates a new subsection
regarding revocation procedures within the "Conditional Use
Procedures" subsection of Section 17 entitled "Planning Board" .
The new language is identical to the amending provisions for the
Board of Adjustment as already described above, except that the
regulations would be applicable to Conditional Uses. -
Section 3 .
This section of the proposed amendment creates a new subsection
entitled "Revocation Procedures" within the "Division of Lots/Lot
Splits Appeal Procedures" subsection of Section 17 entitled
"Planning Board" . The new language is identical to the amending
provisions for the Planning Board and Board of Adjustment, as
already described above, except that the regulations would be
applicable to Lot Split Appeal procedures.
Section 4 .
This section of the amendment creates a new subsection entitle
"Notice of Public Hearing Requirements" within the "Division of
Lots/Lot Splits Appeal Procedures" subsection of Section 17
entitled "Planning Board" . The new provision would codify the
notice requirements for the public hearing. At the present time,
the ordinance is mute on this subject. The proposed -reference would
include the notice requirements for these requests within the same
regulations for Conditional Use public hearings, which as a matter
of policy, the Division utilizes for public notice requirements
regarding these requests before the Planning Board currently and in
the past .
Specifically the notice requirements would be as follows :
"Approximately fifteen (15) days prior to the public
hearing date, a description of the request, and the time
and place of such hearing shall be posted on the property
and advertised in a paper of general paid circulation in
the community. Notice shall also be given by mail to the
owners of record of land lying within 375 feet of the
property. This notification requirement shall be the
PAGE 6 OF 7
responsibility of the applicant. "
The last sections of the amendment provide for inclusion in the
Zoning Ordinance, repealer, severability and an effective date.
In reviewing a request for an amendment to the Zoning Ordinance or
a change in land use, the Planning Board should consider the review
criteria for such changes. Since the amending ordinance would only
change the text of the Zoning Ordinance and would not constitute a
use change or a change in zoning district boundaries or
classification, staff has concluded that the review criteria are
not relevant or applicable to this amendment .
CONCLUSION
Based on the foregoing, the Administration has concluded that the
City Commission should adopt on second reading the attached
amending ordinance with the proviso that the application forms for
the (Zoning) Board of Adjustment and Planning Board be amended to
apprise applicants and owners of the subject property the possible
consequences that may be imposed for non-compliance with conditions
of ap.rov�l for these requests.
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