2017-4083 OrdinanceRehearing and Appeal Procedures
ORDINANCE NO. 2017 -4083
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING SECTION 118 -9, ENTITLED "APPEAL
AND. REHEARING -- PROCEDURES"; IN ORDER TO REMOVE ANY
CONFLICTS WITH ARTICLE I, SECTION 2 OF THE RELATED SPECIAL
ACTS BY STRIKING CONFLICTING LANGUAGE FROM THE LAND
DEVELOPMENT CODE AUTHORIZING ADMINISTRATIVE APPEALS
BEFORE ANY BOARDS OTHER THAN THE BOARD OF ADJUSTMENT; AND
CLARIFYING THE STANDARD OF REVIEW OF ADMINISTRATIVE APPEALS;
AMENDING SECTIONS 118 -395, 118 -397, 118 -563, 118 -609, 142 -108 and
142 -875 TO ENSURE ALL ADMINISTRATIVE APPEALS ARE BEFORE THE
BOARD OF ADJUSTMENT; DEFINING THE STANDARD FOR REVIEW OF AN
ADMINISTRATIVE APPEAL; CLARIFYING THAT AN ADMINISTRATIVE
APPEAL IS OF THE PLANNING DIRECTOR, OR HIS DESIGNEE; AND
PROVIDING FOR REPEALER; SEVERABILITY; CODIFICATION; AND AN
EFFECTIVE DATE.
WHEREAS, the Related Special Acts, which are considered part of the City's Charter
provides that the "board of adjustment shall hear and decide appeals from, and review, any
order, requirements, decision or determination made by an administrative official charged with
the enforcement of the Zoning Ordinance of the City of Miami Beach;" and
WHEREAS, the Related Special Acts requires all administrative appeals be heard by the
Board of Adjustment; and
WHEREAS, over the past 30 years, every time the City has desired to amend the
Related Special Acts, the City has issued a referendum question to the voters; and
WHEREAS, The decision to go to referendum is consistent with the opinion of the
Florida Attorney General, in interpreting section 166.021(4), Florida Statutes, which provides
that Special Acts and Charters relating to Boards can only be amended by referendum; and
WHEREAS, it appears that over time there have been certain land development
regulations enacted that conflict with the Related Special Acts, and should be removed from the
Code; and
WHEREAS, as the Related Special Acts, are analogous to the charter, due to the voter
referendum on those provisions, conflicting provisions in our code cannot be implemented, and
should be stricken; and
WHEREAS, the City also desires to delineate the standard of review of an administrative
appeal, as de novo, which is consistent with City practice but not actually delineated in the City
Code; and
WHEREAS, the land development code references an administrative appeal of the
"administrative official" making the determination, and elsewhere references the Building
Official, however, the planning director is the final interpreter of the land development code, and
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appeals of the building official are to the Board of Rules and Appeals, as such, the land
development regulations should be made clear, that an administrative interpretation or action of
the planning director, or his designee, is appealed to the board of adjustment; and
WHEREAS, the revisions to section 118 -9, shall ensure all conflicting provisions are
removed from the Code.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Chapter 118 "Administration and Review Procedures," Article I "In General"
at Section 118 -9, "Rehearing and appeal procedures ", is hereby amended:
CHAPTER 118 - ADMINISTRATION AND REVIEW PROCEDURES
ARTICLE I. - IN GENERAL
Sec. 118 -9 Rehearing and appeal procedures.
The following requirements shall apply to all rehearings and appeals to or from the City's by
land development boards unless otherwise more specifically provided for in these land
development regulations, and applicable fees and costs shall be paid to the City as required
under section 118 -7 and Appendix A to the City Code. As used herein, "land use board(s)" shall
mean the board of adjustment, design review board, historic preservation board and planning
board.
(b) Board of adjustment - administrative appeal procedures:
(1) Decisions eligible for administrative appeals
(1) The board of adjustment shall have the exclusive authority to hear and decide all
administrative appeals when it is alleged that there is error in any written planning order,
requirement, decision, or determination made by -• -: - the planning
director or his designee} in the enforcement of these land development regulations. The
planning director's decision shall be published within 30 days on the. City's website for at
least 30 da s. An eligible •art as defined in this code shall have 30 da s from •ostin•
on the web page to appeal the administrative determination.
A.
decision of the planning director to the planning board regarding a decision
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for appeals of administrative decisions specifically delegated to the other
order, requirement, dccision, or determination made by an administrative
official in the enforcement of these land development regulations.
(ii) An administrative appeal pursuant to subsection 118 397(b) "Existence of
a nonconforming building or use."
(1) An administrative appeal pursuant to subsection 118 563(d)(1) or (3),
"Review procedure."
(ii) An administrative appeal pursuant to subsection 118 565 "Special review
procedure," or
{iii) An administrative appeal pursuant to section 118 609 "Completion of
work."
decision of the planning director regarding thc following ad-minictrativc
determinations to the design board:
(i) An administrative appeal pursuant to subsection 118 395 "Repair and /or
procedure," or
(iii) An administrative appeal pursuant to subsection 142 108 "Provisions for
the demolition of single family homes located outside of historic districts."
(2) Eligible administrative appeals shall be filed in accordance with the process as outlined
in subsections A through D below:
A. Timeframe to file: A petition for an administrative appeal, by an eligible party,
as defined in this code shall be submitted to the planning director on or before
the a 5t' 30th day after the date of the publication. of ° r °focal ^f ^ permit h„
planning director him.
(I)
Planning board.
application on or within 15 days after thc date on which thc director or
For this section of the code, published shall mean the ruling being
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submitted to the planning director on or before the 30th day after the date
of the publication of a rcfusal of a permit by, notice of violation, ruling,
official.
(iii) Historic preservation board. A petition for an administrative appeal
the date on which the director or designee published a decision —en
procedure, "pertaining to ground level additions to existing structures, and
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building restoration.
{iv) Design review board. Administrative appeals shall be submittcd to
e 15th day aftcr thc date on which thc
decision is published pursuant to eithcr subsections 118 395 "Repair
"Provisions for the demolition of single family homes located outside of
historic districts."
B. Eligible parties. Parties eligible to file an application for an administrative appeal to
the board of adjustment are limited to the following:
(1) Original applicant / property owner.
(ii) The city manager on behalf of the city administration, except for
administrative appeals pursuant to sections 118 -260 "Special review
procedure," 118 -395 "Repair and /or rehabilitation of nonconforming
buildings and uses," 118 -609 "Completion of work," and 142 -108
"Provisions for the demolition of single- family homes located outside of
historic districts ".
(iii) An affected person, which for purposes of this section shall mean a
person owning property within 375 feet of the site or application which is
the subject of the administrative appeal, except for administrative appeals
pursuant to sections 118 -260 "Special review procedure," 118 -395
"Repair and /or rehabilitation of nonconforming buildings and uses," 118 -
609 "Completion of work," and 118 -260 "Special review procedure."
(iv) Miami Design Preservation League, except for administrative appeals
pursuant to sections 118 -260 "Special review procedure," 118 -395
"Repair and /or rehabilitation of nonconforming buildings and uses," 118-
260 "Special review procedure," 118 -609 "Completion of work," and 142-
108 "Provisions for the demolition of single- family homes located outside
of historic districts."
(v) Dade Heritage Trust, except for administrative appeals pursuant to
sections 118 -260 "Special review procedure," 118 -395 "Repair and /or
rehabilitation of nonconforming buildings and uses," 118 -260 "Special
review procedure," 118 -609 "Completion of work," and 142 -108
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"Provisions for the demolition of single- family homes located outside of
historic districts."
C. Application requirements. The following shall be required for all applications for
administrative appeals:
(i) The petition to the board shall be in writing; and
(ii) Shall be submitted b or on behalf of an -eli eligible -art and
-- -
(..) y g. p y.
(iii) shall set forth the factual, technical, architectural, historic and legal bases
for the appeal; and
(iv) The party filing the appeal shall be responsible for providing all plans and
exhibits, subject to planning department procedures, as well as the
duplication of all pertinent plans and exhibits.
appeal filin`v
D. Notice requirements. All land use board administrative appeal applications eligible
to request an administrative appeal are subject to the same noticing requirements as
an application for a public hearing, in accordance with section 118 -8 "Notice
Procedures for Quasi - Judicial Land Use Board Actions, and for Administrative
Decisions Requiring Notice." The applicant shall be responsible for all associated
costs and fees.
ET Standard of Review. The appeal shall be "de novo," meaning that the party
appealing the administrative decision bears burden of going forward with evidence
and of persuasion at the board of adjustment administrative appeal proceeding,_ and,
to that end, the board shall have all the powers of the officer from whom the appeal
is taken. Witnesses and testimony may be considered during the hearing. The
hearing is considered quasi - judicial in nature, and a public hearing is required.
Consistent with state law, the administrative interpretation by the planning director,
(3) Outside Counsel to the Planning Department. In the event of an administrative
appeal to the applicable land use board of adjustment, the planning director may engage
the services of an attorney, or utilize a separate, independent, attorney from the city
attorney's office, for the purpose of representing the planning director, administrative
officer who made the decision that is the subject of the appeal.
(4) Board of Adjustment Decisions on Administrative Appeals. The board of adjustment
applicable land use board may, upon appeal, reverse or affirm, wholly or partly, the
order, requirement, decision, or determination,
of the officer from whom the appeal is taken. The concurring vote of five members of the
board of adjustment shall be necessary to reverse any order,
requirement, decision, or determination of the planning director any such administrative
official or to decide in favor of the applicant on any matter upon which the board of
adjustment applicable land use board is required to pass under these land development
regulations.
No permit shall be issued for work prior to expiration of the appeal period or final
disposition of any appeal.
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(5) Stay of Work and Proceedings on Appeal. An administrative appeal to the board of
adjustment applicable-board stays all work on the premises and all proceedings in
furtherance of the action appealed from, unless one of the exceptions below applies:
A. The official from whom the appal was taken, the planning director, shall certify
to the board of adjustment applicable land use board. that, by reason of facts
stated in the certificate, a stay would cause imminent peril to life or property. In
such a case, proceedings or work shall not be stayed except by a restraining
order, which may be granted by the board or by a court of competent jurisdiction,
upon application, with notice to the officer from whom the appeal is taken and for
good cause shown; or
fa, Associated land use board hearings, may proceed to a final order, provided
however: - - . _ _ - . _ ' - _ _ _ . _ ' ' . _ .' _ . _ _ • - _ - g before a land
The final order shall contain
administrative and court proceedings. I4(i) no building permit, or certificate of
occupancy, or business tax receipt, dependent upon such hearing approval, shall
be issued until the final resolution of all administrative and court proceedings as
certified by the city attorney -; and (ii) Tthe applicant for such land use board
hearing shall hold the city harmless and agree to indemnify the city from any
liability or loss resulting from such proceedings. Notice of the final- roolution of
administrative and court proceedings shall be provided as required for notice of
SECTION 2. That Chapter 118, Section 118 -260, entitled "Administration Review Procedures,"
is amended as follows:
CHAPTER 118 - ADMINISTRATION AND REVIEW PROCEDURES
ARTICLE VI. - DESIGN REVIEW PROCEDURES
Sec. 118 -260. - Administrative review procedures.
(a) The planning director or designated representative, shall have the authority to approve,
approve with conditions or deny an application on behalf of the board, for the following:
(1) Ground level additions to existing structures, not to exceed two stories in
height, which are not substantially visible from the public right -of -way, any
waterfront or public park. For those lots which are greater than 10,000 square
feet, the floor area of the proposed addition may not exceed ten percent of the
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floor area of the existing structure or primary lot, whichever is less, with a
maximum total floor area not to exceed 5,000 square feet.
(2) Replacement of windows, doors, storefront frames and windows, or the
approval of awnings, canopies, exterior surface colors, storm shutters and signs.
(3) Facade and building alterations renovations and restorations which are minor
in nature.
(4) Minor demolition and alterations to address accessibility, life safety,
mechanical and other applicable code requirements.
(5) Minor demolition and alterations to rear and secondary facades to
accommodate utilities, refuse disposal and storage.
(6) Minor work associated with the public interiors of buildings and those interior
portions of commercial structures which front a street or sidewalk.
(7) Minor work involving public improvements upon public rights -of -way and
easements.
(8) Minor work which is associated with rehabilitations and additions to existing
buildings, or the construction, repair, or rehabilitation of new or existing walls, at-
grade parking lots, fences.
The planning director's decision shall be based upon the criteria listed in this article. The
applicant may appeal a decision of the planning director to the design review board, pursuant to
the procedural requirements of Section 118 -9.
SECTION 3. That Chapter 118, Section 118 -395, entitled "Repair and /or rehabilitation of
nonconforming buildings and uses," is amended as follows:
CHAPTER 118 - ADMINISTRATION AND REVIEW PROCEDURES
ARTICLE IX. — NONCONFORMANCES
* * *
Sec. 118 -395. - Repair and /or rehabilitation of nonconforming buildings and uses.
(b) Nonconforming buildings.
* * *
(2) Nonconforming buildings which are repaired or rehabilitated by more than 50
percent of the value of the building as determined by the building official, shall be
subject to the following conditions:
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e. Development regulations for buildings not located within a designated historic
district and not an historic site.
1. Buildings constructed prior to 1965 and determined to be
architecturally significant by the planning director, or designee, may
retain the existing floor area ratio, height, setbacks and parking credits,
if the following portions of the building remain intact and are retained,
preserved and restored:
i. At least 75 percent of the front and street side facades;
ii. At least 75 percent of the original first floor slab;
iii. At least 50 percent of all upper level floor plates; and
iv. At least 50 percent of the interior sidewalls.
2. For buildings satisfying the above criteria, and whose lot size is less
than 20,000 square feet, the parking impact fee program may be
utilized, provided that all repairs and rehabilitations, and any new
additions or new construction is approved by the design review board
and that any existing, required parking, that is conforming, shall not be
removed.
3. For purposes of this subsection, the planning director, or designee
shall make a determination as to whether a building is architecturally
significant according to the following criteria:
i. The subject structure is characteristic of a specific
architectural style constructed in the city prior to 1965,
including, but not limited to, vernacular, Mediterranean revival,
art deco, streamline modern, post -war modern, or variations
thereof;
ii. The exterior of the structure is recognizable as an example
of its style and /or period, and its architectural design integrity
has not been modified in an irreversible manner; and
iii. Exterior architectural characteristics, features, or details of
the subject structure remain intact.
A property owner may appeal any determination of the planning director,
or designee relative to the architectural significance of a building
constructed prior to 1965 to the board of adjustment to the design
review board, in accordance with the requirements and procedures
pursuant to the requirements of Section 118 -9.
SECTION 4. That Chapter 118, Section 118 -563, entitled "Review Procedure," is amended as
follows:
CHAPTER 118 - ADMINISTRATION AND REVIEW PROCEDURES
ARTICLE X. - HISTORIC PRESERVATION
DIVISION 3. - ISSUANCE OF CERTIFICATE OF APPROPRIATENESS /CERTIFICATE TO
DIG /CERTIFICATE OF APPROPRIATENESS FOR DEMOLITION
Sec. 118 -563 - Review procedure.
Any applicant requesting a public hearing on any application pursuant to this section shall pay,
upon submission, the applicable fees in section 118 -7. No application shall be considered
complete until all requested information has been submitted and all applicable fees paid.
(d) Notwithstanding subsections 118 -563 (a) through (c) above, all applications for
certificates of appropriateness involving minor repairs, demolition, alterations and
improvements (as defined below and by additional design guidelines to be adopted
by the board in consultation with the planning director or designee) shall be
reviewed by the staff of the board. The staff shall approve, approve with conditions,
or deny a certificate of appropriateness or a certificate to dig after the date of receipt
of a completed application. Such minor repairs, alterations and improvements
include the following:
(1) Ground level additions to existing structures, not to exceed two stories in
height, which are not substantially visible from the public right -of -way (excluding
rear alleys), any waterfront or public parks, provided such ground level additions
do not require the demolition or alteration of architecturally significant portions of
a building or structure. For those lots under 5,000 square feet, the floor area of
the proposed addition may not exceed 30 percent of the floor area of the existing
structure or primary lot, whichever is less, with a maximum total floor area not to
exceed 1,500 square feet. For those lots between 5,000 square feet and 10,000
square feet, the floor area of the proposed addition may not exceed 20 percent of
the floor area of the existing structure or primary lot, whichever is less, with a
maximum total floor area not to exceed 2,000 square feet. For those lots greater
than 10,000 square feet, the floor area of the proposed addition may not exceed
10 percent of the floor area of the existing structure or primary lot, whichever is
less, with a maximum total floor area not to exceed 5,000 square feet.
(2) Replacement of windows, doors, storefront frames and windows, or the
approval of awnings, canopies, exterior surface colors, storm shutters and signs.
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(3) Facade and building restorations, recommended by staff, which are consistent
with historic documentation, provided the degree of demolition proposed is not
substantial or significant and does not require the demolition or alteration of
architecturally significant portions of a building or structure.
(4) Minor demolition and alterations to address accessibility, life safety,
mechanical and other applicable code requirements, provided the degree of
demolition proposed is not substantial or significant and does not require the
demolition or alteration of architecturally significant portions of a building or
structure.
(5) Minor demolition and alterations to rear and secondary facades to
accommodate utilities, refuse disposal and storage, provided the degree of
demolition proposed is not substantial or significant and does not require the
demolition or alteration of architecturally significant portions of a building or
structure.
(e) Any decision of the planning director staff regarding subsections 118- 563(d)(1) and
118- 563(d)(3), may be appealed to the board of adjustment to the historic preservation
board pursuant to the requirements of Section 118 -9.
SECTION 5. Amending Chapter 142 of the City Code, entitled "Zoning Districts and
Regulations," Article II. "District Regulations," Division 2, "RS -1, RS -2, RS -3, RS -4 Single - Family
Residential Districts, Section 142 -108, "Provisions for the demolition of single- family homes
located outside of historic districts," of the Land Development Regulations, is hereby amended
to read as follows:
Chapter 142 - ZONING DISTRICTS AND REGULATIONS
ARTICLE II. DISTRICT REGULATIONS
DIVISION 2. - RS -1, RS -2, RS -3, RS -4 SINGLE- FAMILY RESIDENTIAL DISTRICTS
* *
Sec. 142 -108. - Provisions for the demolition of single- family homes located outside of
historic districts.
(b) Appeals. The decision of the planning director, or designee, which shall bear the
presumption of correctness, pertaining to the architectural significance of a single- family home,
may be appealed to the design review board of adjustment pursuant to the requirements of
Section 118 -9. No demolition permit may be issued within any appeal period, and if an appeal is
filed, while the appeal is pending.
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SECTION 6. Amending Chapter 142 of the City Code, entitled "Zoning Districts and
Regulations," Article IV. "Supplementary District Regulations," Division 1, "Generally, Section
142 -875, "Roof replacements and new roofs," of the Land Development Regulations, is hereby
amended to read as follows:
Chapter 142 - ZONING DISTRICTS AND REGULATIONS
ARTICLE IV. - SUPPLEMENTARY DISTRICT REGULATIONS
DIVISION 1. – GENERALLY
Sec. 142 -875. - Roof replacements and new roofs.
* * *
(b) For architecturally significant single - family homes constructed prior to 1942, the planning
director, or designee, may approve a metal or glass roofing system if it is determined that the
scale, massing and design of the subject home can accommodate a metal or glass roofing
system, and that the metal or glass roofing system will not negatively impact the established
architectural context of the immediate area. Such review by the planning director, or designee,
shall be subject to the criteria in subsections (a)(1) —(4) above.
The appeal of any decision of the planning department under subsections (a) and (b) above,
shall be to the design review board, board of adjustment pursuant to the procedural
requirements of Section 118 -9
The review by the design review board of adjustment, either by
appeal or if the rectal or glasv roofing system does not qualify for planning director approval as
provided above, shall also be pursuant to the criteria in subsections (a)(1) —(4) above.
(c) Within any locally designated historic district, site or structure, the new construction, repair
or replacement of any pitched roof shall consist of flat or barrel tile, which shall be composed of
concrete, clay or ceramic material. The use of metal or glass roofing systems on new
construction shall require the review and approval of the historic preservation board, in
accordance with the criteria in subsections (a)(1) —(4) above, and chapter 118, article X of these
land development regulations. Metal or glass roofing systems shall not be permitted on
contributing buildings, except as hereinafter provided. Within all zoning districts, except single -
family districts, and subject to the approval of the historic preservation board, metal or glass
roofing systems may be permitted on roof -top additions to contributing buildings, subject to the
criteria in subsections (a)(1) —(4) above, and chapter 118, article X of these land development
regulations, provided the metal or glass roofing system is not visible when viewed at eye level
(five feet, six inches from grade) from the opposite side of the adjacent right -of -way; for corner
properties, the metal or glass roofing system shall also not be visible when viewed at eye level
from the diagonal corner at the opposite side of the right -of -way and from the opposite side of
the side street right -of -way. The use of metal or glass roofing systems on existing
noncontributing structures may be reviewed and approved by the planning director, or designee,
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in accordance with the criteria in subsections (a)(1) —(4) above, and chapter 118, article X of
these land development regulations, if it is determined that the scale, massing and design of an
existing noncontributing structure can accommodate a metal or glass roofing system, and that
such metal or glass roofing system will not negatively impact the established historic and
architectural context of the immediate area. The appeal of any decision of the planning
department under this subsection shall be to the historic preservation board of adjustment
pursuant to the procedural requirements of - Section 118 9. The review by the — historic
preservation board of adjustment, either by appeal or if the metal or glass roofing system does
not qualify for planning director approval as provided above, shall also be pursuant to the
criteria in subsections (a)(1) —(4) above and section 118 -564.
SECTION 7. CODIFICATION.
It is the intention of the Mayor and city commission of the City of Miami Beach, 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, Florida. The sections of this ordinance may be renumbered or
re- lettered to accomplish such intention, and, the word "ordinance" may be changed to
"section ", "article ", or other appropriate word.
SECTION 8. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 9. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 10. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this 26 day of G%/'i/
NaSsl-
ATTEST:
CITY C ERK
First Reading:
Second Reading:
Verified by:
Th5mas R. Moo
Planning Director
March 1, 2017
April 26, 2017
PROVED AS TO
M & LANGUAGE
FO& EXECUTION
3-3- 7
City Attorne,_ 1itea
AICP
Underscore denotes new language
Strikcthrough denotes removed language
T:\AGENDA\2017 \4 - April \Planning \Rehearing and Appeal Procedures - Second Reading Ordinance.docx
12
MIAMI BEACH
Ordinances - R5 C
COMMISSION - MEMORANDUM
TO Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: April 26, 2017
10 :10 a.m. Second Reading Public Hearing
SUBJECT: REHEARING AND APPEAL PROCEDURES:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING SECTION 118 -9, ENTITLED
"APPEAL AND REHEARING PROCEDURES "; IN ORDER TO REMOVE ANY
CONFLICTS WITH ARTICLE I, SECTION 2 OF THE RELATED SPECIAL
ACTS BY STRIKING CONFLICTING LANGUAGE FROM THE LAND
DEVELOPMENT CODE AUTHORIZING ADMINISTRATIVE APPEALS
BEFORE ANY BOARDS OTHER THAN THE BOARD OF ADJUSTMENT;
AND CLARIFYING THE STANDARD OF REVIEW OF ADMINISTRATIVE
APPEALS; AMENDING SECTIONS 118 -395, 118 -397, 118-563, 118 -609, 142-
108 AND 142 -875 TO ENSURE ALL ADMINISTRATIVE APPEALS ARE
BEFORE THE BOARD OF ADJUSTMENT; DEFINING THE STANDARD
FOR REVIEW OF AN ADMINISTRATIVE APPEAL; CLARIFYING THAT AN
ADMINISTRATIVE APPEAL IS OF THE PLANNING DIRECTOR, OR HIS
DESIGNEE; AND PROVIDING FOR REPEALER; SEVERABILITY;
CODIFICATION; AND AN EFFECTIVE DATE,
RECOMMENDATION
The Administration recommends that the City Commission adopt the Ordinance.
ANALYSIS
BACKGROUND
On December 14, 2016, at the request of the Office of the City Attorney, the City Commission
referred this item to the Land Use and Development Committee and Planning Board (Item C4 L),
The Land Use Committee discussed the item on January 18, 2017, and recommended that the
Planning Board transmit the proposal to the City Commission with a favorable recommendation. The
sponsor of the Ordinance is Commissioner Joy Malakoff.
PLANNING ANALYSIS
The Related Special Acts, which are considered part of the City's Charter, provide that the "board of
adjustment shall hear and decide appeals from, and review, any order, requirements, decision or
determination made by an administrative official charged with the enforcement of the Zoning
Ordinance of the City of Miami Beach." This provision requires that all administrative appeals be
Page 778 of 1596
heard by the Board of Adjustment (BOA).
Over the past 30 years, every time the City has sought to amend provisions in the Related Special
Acts pertaining to the BOA, the City has issued a referendum question to the voters. The decision to
go to referendum is consistent with the opinion of the Florida Attorney General, in interpreting
Section 166.021(4), Florida Statutes, which provides that Special Act and Charter provisions relating
to appointive boards can only be amended by referendum.
Notwithstanding, over time, certain provisions in the City's land development regulations (LDR) were
enacted which may conflict with the Related Special Acts provisions addressing the BOA's powers
and duties. The City has historically equated the Related Special Acts as having equal dignity, or as
being analogous, to the City Charter, and provisions in the former take precedence over the City
Code. Therefore, those provisions in the LDR's that conflict with the BOA provisions in the Special
Acts should be stricken.
The City Attorney's Office requested a dual referral to the Land Use and Development Committee
and Planning Board so that the City's Land Development Regulations can be amended to remove
any conflict with BOA provisions in the Related Special Acts. Specifically, Chapters 118 and 142 of
the Code are proposed to be amended to provide that, prospectively, all administrative appeals shall
be heard by the Board of Adjustment.
In addition to the above, while reviewing the appeals section of the Code, the City Attorney and
Planning Department also recommended the following edits:
1. The and development regulations specifically delineate the appellate standard of review
for appeals of determinations from the Planning Board, Design Review Board, Historic
Preservation Board and Board of Adjustment - as relating to quasi-judicial proceedings.
There is no standard of review delineated in the Code for administrative appeals. Historically,
the City has used a "de novo" review (meaning, review from the beginning, as if new).
Therefore, the City Attorney and Planning Director recommend codifying the review standard.
2. Currently in the Code, the City has established different appeal periods, ranging from 15
to 30 days, for administrative appeals. To ensure consistency (and to ensure there is no
confusion) a 30 day appeal period for any administrative appeal is recommended.
3. Throughout the Land Development Regulations there is a reference to an administrative
appeal of the applicable "administrative official." This language mirrors the Related Special
Acts [ "an administrative official charged with the enforcement of the Zoning Ordinance of the
City of Miami Beach' . In application, this administrative official has always been interpreted
as the planning director. To avoid any confusion, the provision in the code should be modified
to reflect the "planning director. " Moreover, at section 118- 9(b)(2), there is a reference to an
appeal of the administrative determination of the building official. This reference should be
stricken, as under the Florida Building Code, an appeal of the building official is to the Board
of Rules and Appeals. These revisions will ensure clarity in the application of the Code.
PLANNING BOARD REVIEW
On January 24, 2017, the Planning Board transmitted the proposed Ordinance Amendment to the
City Commission, with a favorable recommendation. The Planning Board made some additional
recommendations regarding the text of the proposed legislation, which have been included in the
Page 779 of 1596
draft for First Reading.
SUMMARY/ UPDATE
The subject ordinance was approved at First Reading on March 1 2017, with no changes.
CONCLUSION
The Administration recommends the Ordinance.
Legislative Tracking
Planning / Office of the City Attorney
Sponsor
Commissioner Joy Malakoff
ATTACHMENTS:
Description
o Ordinance
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