2017-4134 OrdinanceORDINANCE NO. 2017 -4134
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, EXTENDING THE TEMPORARY MORATORIUM
UNDER ORDINANCE 2017 -4073, THROUGH DECEMBER 31, 2017, 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 A CONTINUED EFFECTIVE DATE OF FEBRUARY 8,
2017 AND EXTENDING THE MORATORIUM THROUGH DECEMBER 31,
2017; FOR ZONING IN PROGRESS PURPOSES, THIS ORDINANCE SHALL
BE EFFECTIVE UPON FIRST READING OF THIS ORDINANCE.
WHEREAS, on March 1, 2017, the Mayor and City Commission enacted Ordinance
2017 -4073, which initiated a six (6) month moratorium relating to the following types of uses:
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 moratorium is set to expire August 7, 2017; and
WHEREAS, the City's planning department is in the midst of hiring a medical use
planning consultant to advise on the draft ordinance, and as the City is also obtaining input from
the City's medical advisory committee, and the community at large additional time is needed to
finalize the proposed land use ordinances; and
WHEREAS, neither the Planning Board, nor the City Commission meet during the month
of August, and additional time is needed to implement the regulations and therefore seek to
extend the moratorium through December 31, 2017; and
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 WCI 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
2
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
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 extend the 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 through December 31, 2017.
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. The moratorium initiated under Ordinance 2017 -4073,
that was set to expire on August 8, 2017, is hereby extended through December 31, 2017. The
imposed moratorium shall be 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
3
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 through
December 31, 2017, unless earlier rescinded, repealed, or extended by an Ordinance or
Resolution of the City Commission of the City of Miami Beach.
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 as` day of 5ep fe m be
, 201j.
Philip Levine
Mayor
Rafae E. Granado
City Clerk
First Reading:
Second Read
Verified by:
Th•mas M ney, A CP
Planning Director
(Sponsored by: Commissioner John Elizabeth Aleman)
Underscore denotes new language
June t8, 201'' -�
my ► s'., 20 %
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
4
MAM
BEACH
Ordinances - R5 R
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: September 13, 2017
5:08 p.m. Second Reading Public Hearing
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, EXTENDING THE TEMPORARY MORATORIUM
UNDER ORDINANCE 2017 -4073, THROUGH DECEMBER 31, 2017, ON THE
ACCEPTANCE, REVIEW, APPROVAL, OR ISSUANCE OF ANY LAND
DEVELOPMENT PERMITS (AS THE TERM IS DEFINED IN SECTION
163.3164(16), FLORIDASTATUTES), 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 A
CONTINUED EFFECTIVE DATE OF FEBRUARY 8, 2017 AND EXTENDING THE
MORATORIUM THROUGH DECEMBER 31, 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
On February 8, 2017, the City Commission referred a discussion item pertaining to ACLF's and related facilities to
the Land Use and Development Committee for discussion and recommendation. On June 14, 2017, the Land Use
Committee recommended that a comprehensive draft ordinance pertaining to ACLF's and Medical Uses be
referred to the Planning Board; this referral will be considered as a separate item on the Consent Agenda.
On March 1, 2017, at the request of Commissioner John Elizabeth Aleman, the City Commission approved 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
moratorium applies 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 1050 of 2353
This moratorium, approved for 6 months retroactive to February 8, 2017, is set to expire on or about August 7, 2017.
PLANNINGANALYSIS
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 uses.
The moratorium extension would not apply to applications that have received a Land Use Board Order or a building
permit issued 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 until December 31, 2017, unless earlier rescinded, repealed or
extended by an Ordinance or Resolution of the City Commission. The ordinance is proposed to be effective,
RETROACTIVE, to February 8, 2017.
UPDATE
The subject Ordinance was approved at First Reading on July 26, 2017, with no changes.
CONCLUSION
The Administration recommends that the City Commission adopt the Ordinance.
Legislative Tracking
Planning /Office of the City Attorney
Sponsor
Commissioner John Elizabeth Aleman
ATTACHMENTS:
Description
ID Form Approved Ext Ord
ID Ad
Page 1051 of 2353
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