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2009-3638 OrdinanceORDINANCE NO. 2009-3638 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE BY AMENDING CHAPTER 118, "ADMINISTRATIVE AND REVIEW PROCEDURES," ARTICLE II, "BOARDS," DIVISION 2, "PLANNING BOARD," SECTION 118-52, "MEETINGS AND PROCEDURES;" DIVISION 3, "DESIGN REVIEW BOARD," SECTION 118-74, "REMOVAL;" DIVISION 4, "HISTORIC PRESERVATION BOARD," SECTION 118-105, "REMOVAL;" DIVISION 5, "BOARD OF ADJUSTMENT," SECTION 118-133, "REMOVAL," TO HARMONIZE THE PERMITTED NUMBER OF ABSENCES AND RECUSALS FOR LAND USE BOARD MEMBERS; PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the Land Development Regulations of the City Code provide for the automatic removal of members of the four land use boards namely, the Planning Board, the Board of Adjustment, the Historic Preservation Board, and the Design Review Board after a certain number of absences and recusals in a calendar year; and WHEREAS, the number of recusals within a calendar year varies among the four land use boards; and WHEREAS, the definition of what constitutes an absence should be clarified with regard to the number of items on an agenda and the time a member remains in attendance; and WHEREAS, it is desirable to harmonize these provisions for these land use boards; and WHEREAS, the amendments set forth below are necessary to accomplish all of the above objectives. NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 118, "Administration and Review Procedures," Division 2, "Planning Board," Section 118-52, "Meetings and Procedures," is hereby amended as follows: 1 of 4 Section 118-52. Meetings and procedures. (f) Removal of board members. In the event that any member of the board fails to attend 33 percent of the regularly scheduled meetings per calendar year (to calculate the number of absences under the 33 percent formula, 0.4 or less rounds down to the next whole number and 0.5 or more rounds up to the next whole number), or abstains from voting on a matter before the board due to a conflict of interest on four ~ different applications within a period of one year, such member shall cease to be a member of the board. For purposes of this section, an absence from a meeting shall be defined as missing more than ~9 fift 50 percent of the scheduled matters e+~ unless the member attended seventy (70) percent of the duration of time of that meeting's agenda. A person who has ceased to be a member of the board due to absences or conflicts of interest shall not be reappointed to the board for a period of one year from the date of his/her removal. Section 2. That Chapter 118, "Administration and Review Procedures," Division 3, "Design Review Board," Section 118-74, "Removal," is hereby amended as follows: Section 118-74. Removal. (a) Q n~i~+t of .+nr~nir~to~T~~h~~~~~ll~~ini~~i r fnr n~~ ~co. / Removal of a design review board member shall be mandatory when that member: (1) Fails to attend 33 percent of the regularly scheduled meetings per calendar year (to calculate the number of absences under the 33 percent formula, 0.4 or less rounds down to the next whole number and 0.5 or more rounds up to the next whole number); or (2) Abstains from voting due to a conflict of interest on se~ve+~ four 4 different applications within a calendar year. 411 rv~cmher~ ~h~ll rli~nln~c ~n~i nnnflin4~ nn 4h.~4 rvwe+inn~~+ ~nenrl~. For purposes of this section, an absence from a meeting shall be defined as missing ~9-fi~ percent of the scheduled matters s-~ unless the member attended seventy (70) percent of the duration of time of that meeting's agenda. A member who is removed shall not be reappointed to membership on the board for at least one year from the date of removal. Section 3. That Chapter 118, "Administration and Review Procedures," Division 4, "Historic Preservation Board," Section 118-105, "Removal," is hereby amended as follows: 2 of 4 Section 118-105. Removal. In the event any member of the historic preservation board fails to attend 33 percent of the regularly scheduled meetings per calendar year (to calculate the number of absences under the 33 percent formula, 0.4 or less rounds down to the next whole number and 0.5 or more rounds up to the next whole number), or abstains from voting on a matter before the historic preservation board due to a conflict of interest #+ue four 4 times within a period of one year, such member shall cease to be a member of the board. For purposes of this section, an absence from a meeting shall be defined as missing fiftv (50) percent of the scheduled matters unless the member attended seventy (70) percent of the duration of time of that meeting's agenda. However, abstentions for reason of conflict for matters relating to amendment of the historic properties database shall not be counted for this purpose. Section 4. That Chapter 118, "Administration and Review Procedures," Division 5, "Board of Adjustment," Section 118-133, "Removal," is hereby amended as follows: Section 118-133. Removal. In the event that any member of the board of adjustment fails to attend 33 percent of the regularly scheduled meetings per calendar year (to calculate the number of absences under the 33 percent formula, 0.4 or less rounds down to the next whole number and 0.5 or more rounds up to the next whole number), or abstains from voting on a matter before the board due to a conflict of interest on four ~ different applications within a period of one year, such member shall cease to be a member of the board. For purposes of this section, an absence from a meeting shall be defined as missing 39 fiftv (50) percent of the scheduled matters e~ unless the member attended seventy (70) percent of the duration of time of that meeting's agenda. A person who has ceased to be a member of the board due to absences or conflicts of interest shall not be reappointed to the board for a period of one year from the date of his/her removal. Section 5. Repealer. All ordinances or parts of ordinances and all sections and parts of sections in conflict herewith be and the same are hereby repealed. Section 6. 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 3 of 4 renumbered or relettered to accomplish such intention, and that the word "ordinance" may be changed to "section" or other appropriate word. Section 7. Severability. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. Section 8. Effective Date. This Ordinance shall take effect ten days following adoption. PASSED and ADOPTED this 13thday of May , 2009. A EST: C CLERK Robert Parcher tti Herr ra ower MAYOR APPROVED AS TO ~ FORM AND LANGUAGE & FOR EXECUTION ~" c! ., L -- i Attorney psi Date First Reading: April 22, 2009 Second Reading: May 13, 20,09 Verified by: rge~. c~omez, gD Underscore denotes new language. ~i} denotes deleted language. F:\PLAN\$PLB\draft ordinances\1914 -recusals\LUB recusals & absences-CC rev 5-13-09.doc 4 of 4 COMMISSION ITEM SUMMARY Condensed Title: An Ordinance proposing an amendment to Chapter 118 in order to harmonize the permitted number of absences and recusals for land use board members. Key Intended Outcome Supported: Not Applicable -Regulatory Supporting Data (Surveys, Environmental Scan, etc Not Applicable -Regulatory Issue: Should the City Commission adopt the proposed ordinance which would limit the number of recusals for all four land use board members to three per calendar year, and to define what constitutes an absence. item summaryiKecommendation: SECOND READING PUBLIC HEARING This ordinance will harmonize the permitted number recusals for land use board members to three per calendar year and defines an absence as missing more than 50% of scheduled items (instead of 30%) unless the member attended 70% of the duration of time of the meeting's agenda. The Administration recommends that the City Commission adopt the proposed ordinance. r+uv~a~ry ovaru r~C~unu~~rsnaauvn: At the January 27, 2009 meeting the Planning Board by a unanimous vote (7-0) recommended adoption of an ordinance that would allow land use board members seven (7) recusals in a calendar year. At the March 2, 2009 meeting, the LUDC reviewed the proposed ordinance as suggested by the Planning Board and made the following changes: the number of recusals should be three per year for all four Land Use Boards, and absences are to be defined as missing more than 50% of scheduled items (instead of 30°/a) unless the member attended 70% of the duration of time of the meeting's agenda. The attached ordinance reflects the changes made b the Committee. Financial Information: Source of Amount Account Funds: ~ 2 3 OBPI Total Financial Impact Summary: In accordance with Charter Section 5.02, which requires that the "City of Miami Beach shall considerthe long term economic impact (at least 5 years) of proposed legislative actions," this shall confirm that the City Administration evaluated the long term economic impact (at least 5 years) of this proposed legislative action and determined that the proposed Ordinance is administrative in nature and is not expected to have an fiscal im act u on the resources of the Ci . Ci Clerk's Office Le islative Trackin Jorge Gomez or Mercy Lamazares Sian-Offs: ~ u~partment oy-~ctor I ~ Assistant City Manager ~ City Manager_ T:\AGEI~A\2009\May 13\Regula~191~4 -absences $/fecusals for LUB members sum.doc N1 I /mil Y l I ~ E~~ H AGENDA ITEM ~~D ~ DATE S=I -O`I m MIAMIBEACH City of Miami Beath, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: May 13, 2009 Second Reading Public Hearing SUBJECT: Recusals and absences for Land Use Board members AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE TO HARMONIZE THE PERMITTED NUMBER OF ABSENCES AND RECUSALS FOR LAND USE BOARD MEMBERS, BY AMENDING CHAPTER 118, ADMINISTRATIVE AND REVIEW PROCEDURES, ARTICLE 11, BOARDS, DIVISION 2, PLANNING BOARD, SECTION 118-52, MEETINGS AND PROCEDURES; DIVISION 3, DESIGN REVIEW BOARD, SECTION 118-74, REMOVAL; DIVISION 4, HISTORIC PRESERVATION BOARD, SECTION 118-105, REMOVAL; DIVISION 5, BOARD OF ADJUSTMENT, SECTION 118-133, REMOVAL, PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION The Administration recommends that the City commission adopt the proposed ordinance BACKGROUND The Planning Board requested that staff look into the matter of the number of recusals that would constitute an automatic removal of a land use board member; and also review how an absence from a meeting is defined. The Planning Board also requested that staff research the City Code in order to harmonize this matter for the four land use boards. ANALYSIS The land use boards are tasked with the regulation of land development in very specific realms; however there are commonalities in their duties to review the applications submitted to them. As shown in the chart below, the number of recusals within a period of a calendar year varies from four for the Planning Board and the Board of Adjustment, to five for the Historic Preservation Board, to seven for the Design Review Board. The proposed ordinance reviewed by the Planning Board would harmonize the number of recusals for all four boards to seven in a calendar year. City Commission Memorandum Recusals and absences for Land Use Board members May 13, 2009 Page 2 Development Boards -Comparison Board Appointment Removal Planning Board Seven, appointed with the Missing 33 percent of the regularly concurrence of at least four votes scheduled meetings per calendar, or of the city commission. abstains on four different applications within a period of one year. Design Review Same as above Miss 33% of the regularly scheduled meetings per calendar year or abstains on seven different applications within a calendar ear. Historic Same as above Missing 33 percent of the regularly Preservation scheduled meetings per calendar year or abstains five times within one ear. Board of Seven members appointed by a Missing 33 percent of the regularly Adjustment five-sevenths vote of the city scheduled meetings per calendar year or commission. abstains on four different applications within one ear A review of the number of recusals by land use board members during the 2007 and 2008 calendar years is shown in the table below: Plannin board Design Review Board Historic Preservation Board Board of Ad'ustment one member -four one member - times; one member four members -one two members - 2007 one time two times time each three times each three members - one member - three times each; three times; one two members - one member -one member -four 2008 two times each None time times As can be seen on the table, pursuant to current regulations, two members of the Board of Adjustment came close to being removed in 2007. In 2008, three members of the Planning Board and one member of the Board Adjustment came close to removal, while one member of the Board of Adjustment was automatically removed. The proposed amending ordinance also addresses the definition of what constitutes an absence. Currently an absence is defined as missing more than 30 percent of the scheduled matters on that meeting's agenda, with the exception of the Historic Preservation Board which does not have such definition. For example, a meeting that has 10 items scheduled on its agenda and lasts 5 hours, but a member leaves at hour four, and during those four hours only 6 items have been reviewed, that person has missed 40% of the scheduled items, and therefore, by the current definition, that person is absent. In this regard, the proposed ordinance would consider a dual criterion for this definition - if the member misses 30 percent of the scheduled matters, but has been present at the meeting for 70% of the duration of time, it would not count as an absence. In fairness to members of all the land use boards, some items take extremely long time for discussion and final action, and although this does not happen regularly, prior commitments or emergencies do happen; if a member has been present at a meeting 70% of the duration, that member should get credit for his/her attendance. In trying to clarify the definition of an City Commission Memorandum Recusals and absences for Land Use Board members May 13, 2009 Page 3 absence, staff looked for guidance in Section 2-22 of the City Code, which lists general requirements for Agencies, Boards and Committees, and one of those is "Attendance shall be recorded when an individual arrives within 30 minutes of the scheduled meeting time and remains for at least 70 percent of the meeting." The Planning Board also directed staff to research the City Code to find where the different discrepancies and language originated. The following is a synopsis of the findings: Conflicts of interest The Planning Board, Historic Preservation Board and the Board of Adjustment use similar language to that contained in Section 2-22 (16) of the City Code. The Design Review Board (DRB) section contains different language and in this regard, staff is including an amendment to the language so that it the same as the other land use boards. Removal of board members Ordinance No. 94-2923 included the removal of a Design Review Board member in the event that the member is absent from 3 regular meetings, or is absent from 3 workshop meetings or recused from voting due to a conflict of interest on 7 different applications in a calendar year. The ordinance also defined an absence as missing 30% of the scheduled matters on the agenda, and that if removal for these reasons, a member could not be reappointed for at least one year. The amendments above were requested by the Planning Board in order to encourage improved attendance and ensure that the process was not bogged down due to excessive conflicts of interest. Ordinance No. 95-3025 provides for removal of a Board of Adjustment member in the event that the member is absent from 3 regular meetings, or is absent from 3 workshop meetings or recused from voting due to a conflict of interest on 4 different applications in a calendar year. The ordinance also defined an absence as missing 30% of the scheduled matters on the agenda, and that if removal for these reasons, a member could not be reappointed for at least one year. The amendments above were requested by the Planning Board in order to encourage improved attendance and ensure that the process was not bogged down due to excessive conflicts of interest and to make the removal of members more consistent. A separate ordinance -Ordinance No. 95-3026 -created the same regulation for the Planning Board. Ordinance No. 99-3168 provided for automatic removal of an agency, board or committee member failing to attend 33% of the regularly scheduled meetings per calendar year in Section 2-22(9) of the City Code. Ordinance No. 99-3225 codified in the Land Development Regulations of the City Code, the automatic removal of a land use board member using the same formula that was included in Section 2-22 of the City Code. City Commission Memorandum Recusals and absences for Land Use Board members May 13, 2009 Page 4 Number of recusals (abstentions) Section 2-22, "General requirements," subsection (16) partially states: "The issue of conflict of interest/abstention impairs an individual's ability to be an effective member of an agency, board or committee." Based on this statement in the City Code and past legislation, it has been envisioned that attendance and ensuring that the process is not bogged down due to excessive conflicts of interest is of utmost importance to the City Commission. PLANNING BOARD At the January 27, 2009 meeting, the Planning Board recommended adoption of the proposed ordinance by a vote of 7-0. The proposed ordinance harmonizes the number of recusals permitted during a calendar to seven (7) before the mandatory removal of a land use board member while at the same time clarifies the definition of what constitutes an absence. LAND USE AND DEVELOPMENT COMMITTEE At the March 2, 2009 meeting, the Committee reviewed the proposed ordinance as suggested by the Planning Board and made the following changes: the number of recusals should be three per year for all four Land Use Boards, and absences are to be defined as missing more than 50% of scheduled items (instead of 30%) unless the member attended 70% of the duration of time of the meeting's agenda. The attached ordinance reflects the changes made by the Committee. CITY COMMISSION At the April 22, 2009 meeting, the City Commission approved the proposed ordinance on first reading. FISCAL IMPACT In accordance with Charter Section 5.02, which requires that the "City of Miami Beach shall consider the long term economic impact (at least 5 years) of proposed legislative actions," this shall confirm that the City Administration evaluated the long term economic impact (at least 5 years) of this proposed legislative action and determined that the proposed Ordinance is administrative in nature and is not expected to have any fiscal impact upon the resources of the City. CONCLUSION The Administration recommends that the City Commission adopt the proposed ordinance. Pursuant to Section 118-164 of the City Code, when a request to amend the Land Development Regulations does not change the actual list of permitted, conditional or prohibited uses in a zoning category the proposed ordinance may be read by title or in full on at least two separate days and shall, at least ten days prior to adoption, be noticed once in a newspaper of general circulation in the city. The notice of proposed enactment shall state the date, time and place of the meeting; the title of the proposed ordinance; and the place or places within the city where such proposed ordinances may be inspected by the public. The notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance. City Commission Memorandum Recusals and absences for Land Use Board members May 13, 2009 Page 5 Immediately following the public hearing at the second reading, the City Commission may adopt the ordinance. An affirmative vote of five-sevenths of all members of the city commission shall be necessary in order to enact any amendment to the Land Development Regulations. T:WGENDA\2009\May 13\Regular\1914 -absences & recusals for LUB members memo.doc a 0 Y a. o' Z 0 al = I S 4 ', Y; sl r~, L m E 0 -o v x E m E m' F If~M(BEACk~ CITY Of M1AM1 BEACH NOTICE Of PUBLIC HEARING'S NOTICE IS:HEREBY~iven chat second readings and public hearings will ire held by the Mayorand City"Commissiori of the City of Miami Beach, Florida, in the Commission Chambers, 3rd floor,-Crty Hall, 1700 Convention Center Drive, Miami Beach, Florida. on Wednesday, May 13, 2009, to consider the following: t0a5 a.m. An Ordinance Amending Chapter?. Article III;Df The Miami Beach City Code, Enttled "Agencies, Boards And Committees," 8y Creating Division 32. Entitled "Gay, Lesbian. Bisexual'And Transgender (GLBT) Business Enhancement Committee," And Sections 2-190.144 Through 2'190:147 Thereto. Inquiries may be directed to the City Attorney's Office at (305)873-7470. An Ordinance Amending'. Chapter 14 Of The City Code, .Entitled "Building Regulations." By Amending Article II, Entitled "Construction Standards," By Amending 'Division 1, Entitled "Generally," By, Amending Section ~ 4-403„Entitled "Penalty For Violation Of Artiole,". To Provide For The Enforcement Of Non-Functioning Wheelchair Lifts By Citation; And Amending Section 14-444,-Entitled "Schedule OF Violation Fines," By-Adding A Citation And Fine Schedule For The EnfomementOf'.Non-Functioning Wheelchairtifts.