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RESOLUTION 88-19139 RESOLUTION NO. 88-19139 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA NOTICING THE REPEAL OF THOSE PARAGRAPHS IN SECTION 8 OF THE MIAMI BEACH CITY CHARTER CONCERNING ELECTORATE APPROVAL OF ADULT CONGREGATE LIVING FACILITIES AND/OR NURSING HOMES IN THE CITY OF MIAMI BEACH, UNANIMOUS VOTE OF GOVERNING BODY FOR ADULT CONGREGATE LIVING FACILITIES AND/OR NURSING HOME CONDITIONAL USE APPROVAL, AND ELECTORATE APPROVAL FOR INCREASED ZONING DENSITY VARIANCE FOR LOW INCOME HOUSING PROJECTS. WHEREAS, the last five paragraphs in Section 8 of the Miami Beach City Charter, concerning Adult Congregate Living Facilities read as follows: The electors of the City of Miami Beach shall vote on and approve any zoning ordinance that establishes criteria for adult congregate living facilities, (ACLF) , and or nursing homes to be located within the city limits of Miami Beach. A request for conditional use approval for an adult congregate living facility, (ACLF) , or nursing home facility, located within the city limits of Miami Beach, shall require a unanimous vote of the total membership of the governmental body authorized to grant such approval . There shall be a health advisory board that will hold regular meetings to review and advise the administration and the commission of all matters that relate to the health, welfare, and safety of the citizens of Miami Beach. The composition of the board shall consist of administrators of local hospitals, an administrator from an ACLF, a representative from the nursing profession, two (2) citizens who are health providers, and three (3) consumers. There shall be ex-officio a representative from the social services department, a representative from the police department, and a representative from the fire rescue department. These appointments shall be made by the city manager for a period not to exceed two (2) years. A request for an increased zoning density variance for low-income housing projects shall require a vote of approval from the majority of electors voting in a general election. WHEREAS, all of the aforementioned provisions, except the 3rd and 4th paragraphs printed hereinabove dealing with the establishment and composition of the Health Advisory Board, have been held invalid in Burstyn v. City of Miami Beach, Eleventh Judicial Circuit Court Case No. 84-07272 CA 13 ; and 1 WHEREAS , in light of said Court Order, the subject provisions concerning electorate approval of Adult Congregate Living Facilities and/or nursing homes in the City of Miami Beach, unanimous vote of governing body for Adult Congregate Living Facilities and/or nursing home conditional use approval, and electorate approval for increased zoning density variance for low income housing projects, are hereby repealed. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that it hereby notices the repeal of those paragraphs in Section 8 of the Miami Beach City Charter concerning electorate approval of Adult Congregate Living Facilities and/or nursing homes in the City of Miami Beach, unanimous vote of governing body for Adult Congregate Living Facilities and/or nursing home conditional use approval, and electorate approval for increased zoning density variance for lo``w income housing projects. PASSED and ADOPTED this 20th day of January 1988 . / / / OR ATTEST: 15 11))1 IR4t1", CITY CLERK JKO/rg FORM APPROVED GAL DE'T. f By .vir // 1. Date r--(3 2 i IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 84-07272 CA 19 DISTRICT XI NURSING HOME AND ) LONG TERM CARE FACILITY ) OMBUDSMAN COUNCIL, DADE COUNTY ) COUNCIL OF SENIOR CITIZENS , ) INC. , CITIZENS ADVOCATING RIGHTS FOR THE ELDERLY, JUDAH ) BURSTYN, MAX SERCHUK, and ) HARRY PLISSNER ) Plaintiffs , ) vs . ) CITY OF MIAMI BEACH, ) A Florida Municipal ) Corporation, ) ) Defendant . ) FINAL JUDGMENT DECLARATORY AND INJUNCTIVE RELIEF This matter coming on to be heard on January 4 , 1988 on Plaintiffs ' Motion for Summary Judgment, and the Court having reviewed the Pleadings , Affidavits and Memorandums of Law filed herein ,in , 9 hav in heard argument of counsel , and being otherwise fully advised in the premises , make the following findings of fact and conclusions of law : 1 . It affirmatively appears from the pleadings and affidavits before the Court that there are no genuine issues of material fact and that the plaintiffs are entitled to judgment as a matter of law. 2. Plaintiffs allege that an Amendment to the City Charter of the City of Miami Beach , adopted at a special election held on November 1 , 1983 , violated Florida law of general application and the Constitutions of the State of Florida and the United States of America . The Charter Amendment at issue provides as follows : The undersigned duly dersi ned qualified electors of the City of Miami Beach , Florida , petition the City Commission to place before the electors of the City at the earliest possible . time and without delay, the following proposed amendment to the City Charter, in accordance with 34 Section 5 .03 of the Home Rule Charter of Metropolitan Dade County, Florida : Section 8 of the City Charter shall he amended by adding thereto the following additional paragraph: THE CITIZENS OF MIAMI BEACH SHALL VOTE ON HEALTH, WELFARE, AND SAFETY ISSUES THAT MATERIALLY AFFECT THE BEST INTERESTS OF THE CITY. A. The electors of the City of Miami Beach shall vote on and approve any zoning ordinance that estab- lishes criteria for Adult Congregate Living Facil- ities , ( ACLF ) , and or Nursing Homes to be located within the city limits of Miami Beach . B . A request for a conditional use approval for an Adult Congregate Living Facility, (ACLF) , or Nurs- ing Home facility , located within the city limits of Miami Beach , shall require a unanimous vote of the total membership of the governmental body authorized to grant such approval . C. There shall be a Health Advisory Board that will hold regular meetings to review and advise the Administration and the Commission of all matters that relate to the Health, Welfare , and Safety of the citizens of Miami Beach . The composition of the Board shall consist of Administrators of local hospitals , and Administrator from an ACLF, a representative from the Nursing profession, 2 citizens who are Health providers , and 3 consumers . There shall be ex-of is io a representative from the Social Services Department , a representative from the Police Department, and a representa- tive 'from the Fire Rescue Department . These appointments shall be made by the City Manager for a period not to exceed 2 years . D. A request for an increased zoning density variance for low-income housing projects shall require a vote of approval from the majority of electors voting in a general election . This amendment , if approved , shall become effective on the day following the election . I declare that the intention of the undersigned in signing the Petition is that if any part of the foregoing amendment should be finally held invalid for any reason by a court of competent jurisdiction , it shall not affect the right of the electors to vote on the remainder of the amend- ment or any valid part thereof . 3 . The Court finds that Part A of the Charter Amendment , adopted on November 1 , 1983 , and now incorporated in Section 8 of the Charter of the City of Miami Beach , and which reads : "The electors of the City of Miami Beach shall vote on and approve any zoning ordinance that establishes criteria for Adult Congregate Living Facilities , (ALCF) , and or Nursing Homes to he located within the city limits of Miami Beach" conflicts with Florida law 35 - 2 - • OFFICE OF THE CITY ATTORNEY 64 434, wead F L O R 1 D A • (11,111,5 PM Bf7 ARNOLD M. WEINER ,* TT'* P.O.BIN 190000 � MIAMI BEACH,FLORIDA 33119 CITY ATTORNEY '�.,H 26__ TELEPHONE: 673-7470 COMMISSION MEMORANDUM 36 -8B DATE: JAN. 20, 1988 TO: Mayor Alex Daoud and Members of the City Commission FROM: Arnold M. Weiner af, 4,t) City Attorney • SUBJECT: BURSTYN V. CITY OF MIAMI BEACH, ELEVENTH JUDICIAL CIRCUIT COURT CASE NO. 84-07272 CA 19: AMENDMENT TO SECTION 8, MIAMI BEACH CITY CHARTER On January 5 , 1988, Judge Jack M. Turner of the Eleventh Circuit Court in and for Dade County, Florida, entered Final Judgment for Declaratory and Injunctive Relief (attached hereto) , granting Plaintiff' s Motion for Summary Judgment in the above-styled cause; the Judge ' s ruling effectively invalidates all of those paragraphs in Section 8 of the Miami Beach City Charter dealing with Adult Congregate Living Facilities, except those provisions concerning the establishment and composition of the Health Advisory Board. Moreover, pursuant to the Stipulation entered into in September, 1987 between the parties, no attorney' s fees or costs have been assessed against the City of Miami Beach in exchange for the City' s agreement not to appeal the subject order. In light of the above, a Resolution noticing the repeal of the relevant paragraphs of Section 8 of the City Charter is attached hereto for Commission passage. AMW/rg AGENDA ITEM DATE I - -88 OFFICE OF THE CITY ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139 of general application to all municipalities and is , therefore , • void . 4 . A municipal charter provision is invalid if it conflicts with Florida law of general application. Board of Cty. Com' rs . of Dade Countyv. Wilson , 386 So. 2d 556 ( Fla. 1980 ) . Section 166 .041 , Fla. Stat . ( 1985 ) proscribes the method of amending ordinances. The Court finds that• Part A of the Charter Amendment, by requiring a condition precedent referendum, is in conflict with Section 166 .041 . See, City of Tamarac v . Sabal Palm Golf Club , 382 So. 2d 139 ( Fla. 4th DCA 1980 ) . 5. The Court finds that Part B of the Charter Amendment , adopted on November 1 , 1983, and now incorporated in Section 8 of the Charter of the City of Miami Beach , and which reads : "A request for conditional use approval for an Adult Congregate LivingFacility, (ACLF) , or Nursing Home facility, located within the citylimits of Miami Beach, shall require a unanimous vote of the total membership of the governmental body authorized to grant such h a roval" conflicts with Florida law of general applica- tion. ThisP rovision is in conflict with Section 166 . 041 ( 4 ) , Fla . Stat . ( 1985) which provides that: "An affirmative vote of a majority of a quorum present shall be necessary to enact any ordinance or adopt any resolution." It is also in conflict with Section 166 . 041 because it is inconsistent with the requirement that the method for the adoption of all ordinances and resolutions be uniform. 6,. The Court finds that Part D of the Charter Amendment , adopted on November 1 , 1983 and now incorporated in Section 8 of the Charter of the City of Miami Beach, and which reads : "A request for an increased zoning density variance for low-income prhousingojects rojects shall require a vote of approval from the majority of electors voting in a general election" conflicts with Y Florida law of general application . 7 . The Court further finds that the granting of a variance is aQ uas i-judicial function of the Board of Adjustment or governingbody, vernin not subject to referendum. Town of Indianlantic - 3 - v. Nance , 400 So. 2d 37 ( Fla . 5th DCA 1981 ) , aff 'd , 419 So. 2d 1046 ( Fla. 1982) . 8 . The Court finds it unnecessary to rule on the other reasons asserted by plaintiffs for declaring the Charter Amend- ment invalid and of no force and effect. THEREFORE, it is ORDERED, ADJUDGED and DECREED that : A. This Court has jurisdiction over the parties to this cause and the subject matter. '. B. Plaintiffs ' Motion for Summary Judgment is hereby GRANTED. C. Final injunctive and declaratory relief is hereby entered in favor of Plaintiffs , and against Defendant, the CITY OF MIAMI BEACH, declaring that Parts A, B and D of the amendment to Section 8 of the Charter of the City of Miami Beach , adopted on November 1 , 1983 , are invalid and of no force and effect and permanently enjoining defendant , the CITY OF MIAMI BEACH, from enforcing the provisions of Parts A, B and D of the Charter Amendment. D. Each party shall bear its own costs and expenses . No damages were sought and attorneys fees were waived . E. The -Court retains jurisdiction of the matter for the purpose of entering any further orders as may be necessary and proper to enforce or otherwise insure that the provisions hereof are fully and completely carried out and followed . DONE and ORDERED in Chambers , at Miami , Dade County, Florida , this....5 day of January, 1988 . r CK M Jack R. Turner Circuit Court Judge Copies furnished to: Peter M. Siegel , Esq. Greg M. Gaebe, Esq. 37 - 4 - ORIGINAL RESOLUTION NO. 88-19139 (Noticing the repeal of those paragraphs in section 8 of the Miami Beach City Charter concerning electorate approval of Adult Congregate living Facilities and/or nursing homes in the City of Miami Beach, unanimous vote of governing body for Adult Congregate Living Facilities and/or nursing home conditional use approval, and electorate approval for increased zoning density variance for low income housing projects)