2017-4073 Ordinance ORDINANCE NO. 2017-4073
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ESTABLISHING A TEMPORARY MORATORIUM
FOR 180 DAYS FROM THE EFFECTIVE DATE OF THIS ORDINANCE ON
THE ACCEPTANCE, REVIEW, APPROVAL, OR ISSUANCE OF ANY LAND
DEVELOPMENT PERMITS (AS THE TERM IS DEFINED IN SECTION
163.3164(16), FLORIDA STATUTES), BUSINESS TAX RECEIPTS, OR ANY
OTHER LICENSE OR PERMIT FOR THE ESTABLISHMENT OR OPERATION
OF ADULT CONGREGATE LIVING FACILITIES, ASSISTED LIVING
FACILITIES, CRISIS STABILIZATION UNITS, RESIDENTIAL
DETOXIFICATION CENTERS, COMMUNITY RESIDENTIAL HOMES, AND
RESIDENTIAL MEDICAL REHABILITATION CENTERS, AND ANY SIMILAR
OR DERIVATIVE USES ASSOCIATED WITH SUCH USES, WITHIN THE CITY,
IN ORDER TO PROVIDE THE CITY WITH AN OPPORTUNITY TO REVIEW
AND ENACT DEFINITIONS AND REGULATIONS GOVERNING SAID USES;
PROVIDING PENALTIES FOR ANY VIOLATION HEREOF; PROVIDING FOR
SEVERABILITY; REPEALER OF CONFLICTING ORDINANCE PROVISIONS;
AND PROVIDING FOR AN EFFECTIVE DATE RETROACTIVE TO FEBRUARY
8, 2017; FOR ZONING IN PROGRESS PURPOSES, THIS ORDINANCE
SHALL BE EFFECTIVE UPON FIRST READING OF THIS ORDINANCE.
WHEREAS, the Mayor and City Commission have recognized the need for a temporary
moratorium on the acceptance, review, approval or issuance of any land development permits,
as defined in section 163.3164(16), Florida Statutes, business tax receipts or any other license
or permit for the establishment or operation of adult congregate living facilities, assisted living
facilities, crisis stabilization units, residential detoxification centers, community residential
homes, and residential medical rehabilitation centers, and any similar or derivative uses
associated with such uses, within the jurisdictional boundaries of the City; and
WHEREAS, the City has not defined crisis stabilization units, residential detoxification
centers, community residential homes, and residential medical rehabilitation centers, and any
similar or derivative uses associated with such uses; and
WHEREAS, the term adult congregate living facility is obsolete and should be updated
to conform to state law, by replacing the obsolete term with "assisted living facility," and the City
Code should be updated to include proper licensure requirements and to comply with state law
requirements; and
WHEREAS, the City desires to provide for such uses, in appropriate locations, but the
City must first complete a zoning and planning analysis to determine the locations best suited
for such uses; and
WHEREAS, as in WC/ Communities, Inc. v. City of Coral Springs, 885 So. 2d 912 (Fla.
4th DCA 2004), a court will not interfere with the legislative act of establishing a temporary
moratorium in processing plans where there is a rational relationship to the City's legitimate
general welfare concern; and
WHEREAS, moreover, a court should not set aside the determination of public officers in
land use matters unless it is clear that their action has no foundation in reason, and is a mere
arbitrary or irrational exercise of power having no substantial relation to the public health, the
public morals, the public safety of the public welfare in its proper sense. Id.; Smithfield
Concerned Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d 239, 243 (1st Cir. 1990);
and
WHEREAS, the first step in ensuring the proper enactment of a moratorium, is to ensure
that the City's legislation has a rational basis and legitimate governmental purpose for the
imposition of a moratorium; and
WHEREAS, the second step is for the Mayor and City Commission to establish a record
that the moratorium would further the governmental purpose of creating, finalizing, and adopting
amendments to the land development regulations to provide for and regulate the location of said
uses; and
WHEREAS, the Mayor and City Commission desire to encourage compatible uses
within the various zoning districts in order to provide for the needs of the community; and
WHEREAS, the Comprehensive Plan may require amendment to ensure the proper
location for said uses, and the list of permitted, conditional, and prohibited uses, must be
amended in the City's land development regulations; and
WHEREAS, siting of said uses must take into consideration the existing and proposed
infrastructure, accessibility to emergency and public service vehicles, and proximity to public
safety and public facilities; these considerations are critical for the City to ensure the health,
safety and welfare of the City's residents and visitors; and
WHEREAS, the City Commission realizes that all these changes may have a
consequence of increasing demand for City services; and
WHEREAS, the City requires time to review, consider, modify, process for adoption, and
implement regulations pertaining to the referenced zoning districts, and to evaluate the extent
that the existing zoning/land development regulation are effectively implementing the various
uses; and
WHEREAS, the Courts have recognized that a temporary moratorium is an important
land-use planning tool as a means of preserving the status quo during the planning process to
ensure that the community's problems are not exacerbated during the time it takes to formulate
a regulatory scheme; and
WHEREAS, it is well-settled that permissible bases for land use restrictions include
concern about the effect of the proposed development on traffic, on congestion, on surrounding
property values, on demands for City services, and on other aspects of the general welfare.
WCI Communities, Inc., 885 So.2d at 915; Corn v. City of Lauderdale Lakes, 997 F.2d 1369,
1375 (11th Cir. 1993); and
WHEREAS, in order for an ordinance to apply retroactively (1) there must be clear
evidence of legislative intent to apply the law retroactively, and (2) when allowed, the retroactive
application must be constitutionally permissible, in that the new law may not create new
obligations, impose new penalties, or impair vested rights. Jasinski v. City of Miami, 269 F.
Supp. 2d 1341 (S.D. Fla. 2003); and
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WHEREAS, for purposes of determining whether the retroactive application of a
municipal ordinance impairs a vested right under Florida law, a vested right is defined as an
immediate, fixed right of present enjoyment. Id.; and
WHEREAS, the moratorium proposed herein is not the retroactive application of a tax;
and
WHEREAS, by enacting this Ordinance, the City is not interfering with any vested right
obtained as a result of a final order from a City Land Use Board, or any permit already obtained
under the Florida Building Code; and
WHEREAS, the Mayor and City Commission desire to adopt a six (6) month moratorium
on the acceptance, review, approval or issuance of any land development permits, as defined in
section 163.3164(16), Florida Statutes, business tax receipts or any other license or permit for
the establishment or operation of adult congregate living facilities, assisted living facilities, crisis
stabilization units, residential detoxification centers, community residential homes, and
residential medical rehabilitation centers, and any similar or derivative uses associated with
such uses, within the jurisdictional boundaries of the City.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. RECITALS. The foregoing recitals are incorporated by this reference as if fully
set forth in the text of this Ordinance. The recitals evidence the concern, motivations and
reasons for imposition of this Ordinance.
SECTION 2. MORATORIUM AREA. As of the effective date hereof, there is hereby imposed a
Moratorium on the acceptance of applications for or the processing of, or the acceptance,
review, approval or issuance of any land development permits, as defined in section
163.3164(16), Florida Statutes, business tax receipts or any other license or permit for the
establishment or operation of adult congregate living facilities, assisted living facilities, crisis
stabilization units, residential detoxification centers, community residential homes, and
residential medical rehabilitation centers, and any similar or derivative uses associated with
such uses, within the jurisdictional boundaries of the City.
The moratorium will not prevent or affect: (i) applications that have received a Land Use Board
Order issued prior to February 8, 2017; (ii) a building permit for demolition issued prior to
February 8, 2017; (iii) a lawful order of the building official; or (iv) an unsafe structures board
order.
SECTION 3. CONSTRUCTION. This Ordinance is to be liberally construed to accomplish its
objectives.
SECTION 4. DURATION OF MORATORIUM. This Ordinance shall remain in effect for one
hundred eighty (180) days from the effective date hereof, unless earlier rescinded, repealed, or
extended by an Ordinance or Resolution of the City Commission of the City of Miami Beach.
Within ninety (90) days from the effective date hereof, the City staff shall provide an interim
report to the City Commission as to the progress being made in the preparation of the land
development regulation amendments.
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SECTION 5. SEVERABILITY. If any clause, section or other part of this Ordinance shall be held
invalid or unconstitutional by any court of competent jurisdiction, the remainder of this
Ordinance shall not be affected thereby, but shall remain in full force and effect.
SECTION 6. REPEALER. All ordinances or parts of ordinances and all section and parts of
sections in conflict herewith be and the same are hereby repealed.
SECTION 7. EFFECTIVE DATE. This Ordinance shall be effective, retroactively, as of
February 8, 2017.
PASSED and ADOPTED this " day of mcirc A_ , 2017.
/-7 /
j
Philip Levi ' '
Mayor
ATTEST:
r .,
c_31q h , . , APPROVED AS TO
Raf el . ranadoRM 8c LANGUAGE
City Clerk 8cT R E CUTION
First Reading: February 8, c 7CHyAttorney Date
Second Reading:
Verified by: 1/
Tho'as Mooney,/ ICP
Planning Director
(Sponsored by: Commissioner John Elizabeth Aleman)
Underscore denotes new language
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Ordinances - R5 A
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: March 1, 2017
10:00 a.m. Second Reading Public Hearing
SUBJECT: TEMPORARY MORATORIUM ON ACLF & RELATED FACILITIES:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ESTABLISHING A TEMPORARY MORATORIUM FOR
180 DAYS FROM THE EFFECTIVE DATE OF THIS ORDINANCE ON THE
ACCEPTANCE, REVIEW, APPROVAL, OR ISSUANCE OF ANY LAND
DEVELOPMENT PERMITS (AS THE TERM IS DEFINED IN SECTION
163.3164(16), FLORIDA STATUTES), BUSINESS TAX RECEIPTS, OR ANY
OTHER LICENSE OR PERMIT FOR THE ESTABLISHMENT OR OPERATION OF
ADULT CONGREGATE LIVING FACILITIES, ASSISTED LIVING FACILITIES,
CRISIS STABILIZATION UNITS, RESIDENTIAL DETOXIFICATION CENTERS,
COMMUNITY RESIDENTIAL HOMES, AND RESIDENTIAL MEDICAL
REHABILITATION CENTERS, AND ANY SIMILAR OR DERIVATIVE USES
ASSOCIATED WITH SUCH USES, WITHIN THE CITY, IN ORDER TO PROVIDE
THE CITY WITH AN OPPORTUNITY TO REVIEW AND ENACT DEFINITIONS
AND REGULATIONS GOVERNING SAID USES; PROVIDING PENALTIES FOR
ANY VIOLATION HEREOF; PROVIDING FOR SEVERABILITY; REPEALER OF
CONFLICTING ORDINANCE PROVISIONS; AND PROVIDING FOR AN
EFFECTIVE DATE RETROACTIVE TO FEBRUARY 8, 2017; FOR ZONING IN
PROGRESS PURPOSES, THIS ORDINANCE SHALL BE EFFECTIVE UPON
FIRST READING OF THIS ORDINANCE.
RECOMMENDATION
The Administration recommends that the City Commission adopt the ordinance.
ANALYSIS
BACKGROUND
At the request of Commissioner John Elizabeth Aleman, the City Attorney drafted the ordinance
establishing a temporary moratorium on the issuance of any land development permits, business tax
receipts or any other license or permit for the establishment or operation of adult congregate living
facilities (ACLF). In addition to ACLF's, the proposed moratorium would apply to assisted living
facilities, crisis stabilization units, residential detoxification centers, community residential homes, and
residential medical rehabilitation centers, and any similar or derivative uses associated with such
uses.
Page 371 of 1025
PLANNING ANALYSIS
Currently, the City Code lacks adequate regulations for crisis stabilization units, residential
detoxification centers, community residential homes, and residential medical rehabilitation centers.
Additionally, the term adult congregate living facility (ACLF) has become obsolete and, as currently
defined in the City Code, needs to be updated to conform to state law. In addition to replacing the
obsolete term `ACLF' with "assisted living facility," the City Code needs to be updated to include
proper licensure requirements and to comply with state law requirements. The proposed moratorium
would allow the City adequate time to conduct a zoning and planning analysis, and determine the
locations best suited for these such uses. A separate referral item is proposed in this regard, on the
Consent Agenda.
The moratorium would not apply to applications that have received a Land Use Board Order or a
building permit for demolition prior to February 8, 2017, which is the applicable date of the
moratorium. It would also not apply to an unsafe structure board order or a lawful order of the
Building Official.
As proposed, the moratorium would remain in effect for one hundred eighty (180) days from effective
date, unless earlier rescinded, repealed or extended by an Ordinance or Resolution of the City
Commission. Within ninety (90) days from the effective date hereof, City staff shall provide an interim
report to the City Commission as to the progress being made in the preparation of the Master Plan
and any associated ordinances.
The ordinance is proposed to be effective, RETROACTIVE, to February 8, 2017.
UPDATE
The subject ordinance was approved at First Reading on February 8, 2017, with no changes.
CONCLUSION
The Administration recommends that the City Commission adopt the ordinance.
Legislative Tracking
Planning and City Attorney
Sponsor
Commissioner John Aleman& Co-Sponsored by Commissioner Michael Grieco
ATTACHMENTS:
Description
Ordinance- Form Approved
D Ad
Page 372 of 1025
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