Ordinance 96-3056 ORDINANCE NO. 96-3056
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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 19, ENTITLED
"HISTORIC PRESERVATION BOARD AND HISTORIC DISTRICT REGULA-
TIONS" BY AMENDING SUBSECTION 19-6, ENTITLED "ISSUANCE OF
CERTIFICATE OF APPROPRIATENESS/CERTIFICATE TO DIG/CERTI-
FICATE OF APPROPRIATENESS FOR DEMOLITION" BY SPECIFYING THE
TYPE OF FACTUAL DATA WHICH MUST BE SUBMITTED TO ESTABLISH
AN UNDUE ECONOMIC HARDSHIP; AMENDING SUBSECTION 19-12,
ENTITLED "VARIANCES PROHIBITED" BY CLARIFYING THE PROHIBI-
TION ON SECURING VARIANCES TO THE APPLICATION OF THE
PROVISIONS OF CHAPTER 19 FROM THE ZONING BOARD OF ADJUST-
MENT; AMENDING SUBSECTION 19-13, ENTITLED "REHEARINGS AND
APPEALS" BY: (i) PROVIDING THAT APPLICANTS CAN REQUEST A
REHEARING BASED UPON A CLAIM OF INORDINATE BURDEN PURSU-
ANT TO THE HARRIS ACT; (ii) SPECIFYING THE DOCUMENTATION TO
BE SUBMITTED BY THE APPLICANT TO SUPPORT THE ASSERTION
THAT THE APPLICANT SHALL SUFFER AN INORDINATE BURDEN AS
A RESULT OF THE BOARD'S ACTION; (iii)PROVIDING THAT EVIDENCE,
TESTIMONY AND INFORMATION ESTABLISHING,AND/OR DISPROVING,
THE INORDINATE BURDEN MAY BE INTRODUCED AND CONSIDERED
BY THE BOARD; PROVIDING FOR INCLUSION IN THE ZONING ORDI-
NANCE, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS,the City Commission wishes to amend Comprehensive Zoning Ordinance No.
89-2665 as a result of the passage of the Bert J. Harris, Jr., Private Property Rights Protection Act,
Section 70.001, et. sem., Florida Statutes, effective October 1, 1995; and
WHEREAS,the City Commission wishes to specify the type of factual data an Applicant
must provide to sustain a claim of undue economic hardship; and
WHEREAS, the City Commission wishes to modify the procedures for Petitions for
Rehearings before the Historic Preservation Board and the Joint Design Review/Historic
Preservation Board to provide that(i)the Board shall consider whether the action of the Board has
inordinately burdened an existing use of the Applicant's real property or a vested right to a specific
use of the Applicant's real property, and (ii) if the Board concludes that the Applicant established
its inordinate burden claim, the Board shall amend its order to eliminate the inordinate burden.
NOW THEREFORE,BE IT ORDAINED BY THE MAYOR AND CITY COMMIS-
SION OF THE CITY OF MIAMI BEACH,FLORIDA:
SECTION 1. AMENDMENTS TO SECTION 19, ENTITLED "HISTORIC PRESERVA-
TION BOARD AND HISTORIC DISTRICT REGULATIONS".
A. That Subsection 19-6,entitled"Issuance of Certificate of Appropriateness/Certificate
to Dig/Certificate of Appropriateness for Demolition"of Section 19 of Zoning Ordinance 89-2665
of the City of Miami Beach, Florida, is hereby amended as follows:
19-6 ISSUANCE OF CERTIFICATE OF APPROPRIATENESS/CERTIFICATE TO
DIG/CERTIFICATE OF APPROPRIATENESS FOR DEMOLITION
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C. Decisions on Certificates of Appropriateness
* * *
3. Where, by reason of particular Site conditions and restraints or
because of unusual circumstances applicable to a particular Applicant's property,
strict enforcement of the provisions of this Section would result in an undue
economic hardship to the Applicant, the Board shall have the power to vary or
modify the provisions in this Section, including adherence to the adopted Evaluation
Guidelines. Any Applicant wishing to assert undue hardship must furnish to the
Board's staff no later than fifteen(15)days prior to the Board's meeting,to consider
the request, ten (10) copies of a written statement presenting the factual data
establishing such economic hardship. The written statement presenting factual data
shall be in the form of a sworn affidavit containing all of the following information:
a. The amount paid for the property.the date of purchase and the party
from whom purchased;
b. The assessed value of the land and improvements thereon according
to the three (3) most recent assessments;
c. Real estate taxes for the previous five (5)years;
d. All appraisals obtained within the previous five (5) years by the
owner or Applicant in connection with his purchase. financing or
ownership of the property;
e. Any listing of the property for sale or rent, price asked and offers
received. if any;
£ Any consideration by the Applicant as to profitable adaptive uses for
the property:
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g_ With respect to income producing property only,annual gross income
from the property for the previous five (5) years, operating and
maintenance expenses for the previous five(5)years.and annual cash
flow, if any, for the previous five (5)years; and,
h. Such additional information as may be relevant to a determination of
undue economic hardship.
In the event that any of the required information is not reasonably available to the
Applicant and cannot be obtained by the Applicant,the Applicant shall file with his
affidavit a statement of the information which cannot be obtained and shall describe
the reasons why such information cannot be obtained. The fact that compliance
would result in some increase in costs shall not be considered undue economic
hardship if the use of the property is still economically viable.
B. That Subsection 19-12, entitled "Variances Prohibited" of Section 19 of Zoning
Ordinance 89-2665 of the City of Miami Beach, Florida, is hereby amended as follows:
19-12 VARIANCES PROHIBITED
No variances shall be granted by the Zoning Board of Adjustment from any of the
provisions or requirements of this Section; provided, however, the foregoing
prohibition shall not limit or restrict an Applicant's right to a rehearing or to appeal
decisions of the Historic Preservation Board or the Joint Design Review/Historic
Preservation Board as more particularly provided in this Section 19.
C. That Subsection 19-13, entitled"Rehearings and Appeals" of Section 19 of Zoning
Ordinance 89-2665 of the City of Miami Beach,Florida, is hereby amended as follows:
19-13 REHEARINGS AND APPEALS
A. Rehearings
The Historic Preservation Board or Joint Design Review/Historic Preservation Board
may consider a Petition for Rehearing by the Applicant, the owner(s) of the subject
property,the City Manager, an aggrieved party,Miami Design Preservation League,
or Dade Heritage Trust. 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, or (2) the Board has overlooked or failed to consider
something which renders the decision issued erroneous, or(3)the Board's action or
order:
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(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
(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").
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.
A Petition for Rehearing must be filed within fifteen(15) days of the filing of the last
decision issued in the case; 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 pPetition for rRehearing may be filed within sixty(60) days of the
decision imposing the condition. 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:
1. A bona fide,valid appraisal supporting the claim of inordinate burden
and demonstrating the loss, or expected loss, in fair market value to the real property
as a result of the Board's action;
2 All factual data described in Subsection 19-6.C.3;provided,however,
in the event all or any portion of the factual data was available to the Applicant prior
to the conclusion of the public hearing before the Historic Preservation or Joint
Design Review/Historic Preservation Board and the Applicant failed to furnish same
to the Board's staff as specified in Subsection 19-6.C.3, then, the Board may, in its
discretion, deny the Applicant's request to introduce such factual data;
3. A report prepared by a licensed architect or engineer analyzing the
financial implications of the requirements, conditions or restrictions imposed by the
Board on the property or development proposed by the Applicant with respect to
which the Applicant is requesting a rehearing;
4. A report prepared by a licensed architect or engineer analyzing
alternative uses for the real property, if any,
5. A report prepared by a licensed architect or engineer determining
whether,as a result of the Board action,the owner is permanently unable to attain the
reasonable, investment-backed expectation for the existing use of the real property
or a vested right to a specific use of the real property with respect to the real property
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as a whole, or that the property owner is left with existing or vested uses that are
unreasonable; and,
6. A report prepared by a licensed architect or engineer addressing the
feasibility, or lack of feasibility, of effectuating the Board's requirements, conditions
or restrictions and the impact of same on the existing use of the real property or a
vested right to a specific use of the real property.
In the event that any of the above,required documentation is not reasonably available
to the Applicant and cannot be obtained by the Applicant,the Applicant shall file an
affidavit stating the information which cannot be obtained and describing the reasons
why such information cannot be obtained;provided,however,neither failure to retain
a professional to prepare the required documentation nor the requirement to pay a fee
for the preparation of such required documentation shall be sufficient to excuse an
Applicant from the above-listed requirements. Evidence,testimony and information
establishing, and/or disproving, the inordinate burden may be introduced by the
Applicant, the Board's staff and City staff, the public, or any other party, and
considered by the Board.
Notice requirements for a rehearing shall be identical to the notice requirements for
the original hearing. The Board may rehear a case, take additional testimony and
either reaffirm its previous decision or issue a new decision reversing or modifying
the previous decision. If the Petition is based on a Harris Act claim and the Board
concludes that the action or order 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, then the Board shall amend or modify the action or order, in whole or in
part,to eliminate the inordinate burden.
SECTION 2. 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 3. REPEALER.
That all Ordinances or parts of Ordinances in conflict herewith be and the same are hereby
repealed.
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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.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the 5th day of October , 1996.
PASSED and ADOPTED this 25th day of Septe',j er , 1996.
ATTEST: INK
MAYOR
P.0 LGtit 6)1C(A-aLU\
CITY CLERK
1st reading 6/19/96
2nd reading 9/25/96
F:\ATTO\GRUD\HARRIS 1.ORD •
9/26/96
FORM APPROVE IJ
LE AL DEPT.
By _
rate
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COMMISSION MEMORANDUM NO. rj 6,946,
TO: MAYOR SEYMOUR GELBER,
MEMBERS OF THE CITY COMMISSION AND
CITY MANAGER JOSE GARCIA-PEDROSA
FROM: MURRAY H. DUBBIN, CITY ATTORNEY
- DIANA L. GRUB,FIRST ASST. CITY ATT EY
RE: AMENDMENTS TO HISTORIC PRESERVATION SECTION OF
ZONING ORDINANCE IN RESPONSE TO "HARRIS ACT"
DATE: SEPTEMBER 25, 1996
During the July 17, 1996 Commission meeting,a proposed ordinance amending the Historic
Preservation Section of the Zoning Code was adopted on first reading but certain amendments were
requested and discussed. As you may recall,the proposed ordinance was drafted in response to the
passage of the Bert J. Harris, Jr. Private Property Rights Protection Act, Section 70.001, et.-seq.,
Florida Statutes, effective October 1, 1995. The original draft provided that the Special Master
would consider the Harris Act claim as part of an appeal. Based upon discussion during the July
17th meeting,and input from the public,we have prepared an amended draft which provides that an
applicant can present evidence supporting a Harris Act claim at a rehearing before the Historic
Preservation or Joint Board, as applicable.
Accordingly, attached are the following documents for your review and consideration:
i) Substitute proposed ordinance(with Harris Act claim made during a rehearing before
the applicable board);
ii) Original proposed ordinance (with Harris Act claim made during appeal before
Special Master); and
iii) Computer generated blacklined copy comparing the original amendment to the
substitute amendment and indicating the revisions;
Please note that if you desire to adopt the substitute proposed ordinance we suggest that the body
of the same be offered by Motion as an amendment to the original proposed ordinance. If adopted,
the title containing the minor title changes would likewise be adopted as an amendment.
WE RECOMMEND THAT THE SUBSTITUTE PROPOSED ORDINANCE BE ADOPTED.
F:\ATTO\GRUD\HARRISLG.ME3
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