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Ordinance 98-3130 • ORDINANCE NO. 98-3130 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING COMPREHENSIVE ZONING ORDINANCE NO. 89-2665 BY AMENDING SECTION 14, ENTITLED "CHANGES AND AMENDMENTS, BY AMENDING SUBSECTION 14-7, ENTITLED "PROPOSED ZONING ORDINANCE AMENDMENTS -- ZONING-IN-PROGRESS MORATORIA ON PERMITS AND APPROVALS," BY DELETING SUBSECTIONS 14-7(A) AND (B), AND AMENDING SUBSECTION 14-7(C) TO PROVIDE FOR THE APPLICATION OF EQUITABLE ESTOPPEL TO CERTAIN PROJECTS AND TO PROVIDE FOR REVIEW FOR PROJECTS WHICH ARE NOT PRESUMED TO HAVE ACHIEVED EQUITABLE ESTOPPEL AND BY AMENDING SECTION 14-8, ENTITLED "PROPOSED COMPREHENSIVE PLAN AMENDMENTS-- PLANNING-IN-PROGRESS MORATORIA ON PERMITS AND APPROVALS;" BY DELETING SUBSECTIONS 14-8(A)AND(B),AND AMENDING SUBSECTION 14-8(C) TO PROVIDE FOR THE APPLICATION OF EQUITABLE ESTOPPEL TO CERTAIN PROJECTS AND TO PROVIDE FOR REVIEW OF PROJECTS WHICH ARE NOT PRESUMED TO HAVE ACHIEVED EQUITABLE ESTOPPEL; PROVIDING FOR INCLUSION IN THE ZONING ORDINANCE, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City Commission wishes to amend Zoning Ordinance No. 89-2665 to comport with the policy of the Planning Department, as approved by the Mayor and City Commission,which presumes that equitable estoppel has been achieved under certain circumstances for any project which has obtained certain design review approvals or obtained a building permit, including partial and demolition permits. NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. AMENDMENTS TO SECTION 14, ENTITLED "CHANGES AND AMENDMENTS". A. That Subsection 14-7,entitled"Proposed Zoning Ordinance Amendments--Zoning- In-Progress Moratoria on Permits and Approvals" of Section 14 of Zoning Ordinance 89-2665 of the City of Miami Beach, Florida, is hereby amended as follows: 14-7 PROPOSED ZONING ORDINANCE AMENDMENTS;ZONING-IN-PROGRESS MORATORIA APPLICATION OF EQUITABLE ESTOPPEL TO PERMITS AND APPROVALS A. - ' amcndmcnt to this Ordinance,the City Managcr shall issue an administrative order setting forth the proposed amendment and establishing a moratorium during which any City employee, board or department is prohibited from granting an approval or permit which would be prohibited, or prohibited without variances, in the event that the proposed amcndmcnt is enacted by the City Commission. $ Any administrative order issued pursuant to the above shall be complied with by all City employees,boards and departments and shall be effective until the proposed amcndmcnt is enacted or rejected by the City Commission. I Iowcver, in the event that the City Commission fails to enact or reject the Board,said administrative order shall be deemed expired and shall be without further effect. E. A. • ..' -- • - ;: --•-•- - shall affect any Any project which has a validly issued and active Full Building Permit, variance approval, or Design Review Board approval prior to a vote by the Planning Board in favor of the proposed zoning amcndmcnt. Amendments to Zoning Ordinance No. 89-2665 shall be enforced against all applications and/or requests for project approval upon the earlier of the favorable recommendation by the Planning Board or the applicable effective date of the Zoning Ordinance amendment, as more particularly provided below. After submission of a completed application for a project approval, to the extent a proposed amendment to the Zoning Ordinance would, upon adoption,render the application nonconforming,then the following procedure shall apply to all applications considered by the City or any appropriate City Board: 1. In the event the applicant: (a) obtains (i) a design review approval, (ii) a variance approval where no design review approval is required, or (iii) a Full Building Permit as defined in Section 3-2.A.85 of the Zoning Ordinance where no design review approval or variance approval is required, and (b) satisfies (a) prior to a favorable recommendation by the Planning Board with respect to any Zoning Ordinance amendment that is adopted by the City Commission within ninety(90) days of the Planning Board's recommendation, 2 Ni^ 10111111111111111111011111•111111111M then the project shall be presumed to have received a favorable determination that equitable estoppel applies and the subject Zoning Ordinance amendment shall not be enforced against the application and/or project (hereinafter, a "favorable determination"), except as otherwise provided in Subsection 14-7.A.4. (If at any time before the expiration of the ninety (90) days the proposed amendment fails before the City Commission, then the project shall no longer be deemed nonconforming). 2. In the event the applicant: (a) obtains (i) a design review approval. (ii) a variance approval where no design review approval is required, or(iii) a Full Building Permit as defined in Section 3-2.A.85 of the Zoning Ordinance where no design review approval or variance approval is required, and (b) satisfies (a) prior to the effective date of any Zoning Ordinance amendment where there was an unfavorable recommendation by the Planning Board with respect to the Zoning Ordinance amendment, or when the Planning Board recommends favorably, but the City Commission fails to adopt the amendment within the specified ninety (90) day period, then the project shall be presumed to have received a favorable determination and the subject Zoning Ordinance amendment shall not be enforced against said application and/or project. except as otherwise provided in Subsection 14-7A.4. 3. In the event an applicant does not qualify under Subsection 1 or 2 hereof for a presumption of a favorable determination to avoid enforcement of adopted amendments against an application and/or project,then said applicant may seek a determination from a court of competent jurisdiction ("Court") as to whether equitable estoppel otherwise exists. If, however, an applicant fails to seek a determination from the Court, or if the Court has made a determination unfavorable to the applicant, and such determination is not reversed on appeal, then, the City shall fully enforce the adopted Zoning Ordinance amendment(s) against the applicant's application and/or project. 3 4. Any presumption of a favorable determination under Subsections 1 and 2. or any favorable determination under Subsection 3 herein, shall lapse contemporaneously with the failure, denial, expiration, withdrawal,or substantial amendment of the application,approval,or permit relative to the project or application to which the favorable determination is applied. 5. For purposes of this Subsection, all references to obtaining design review approval, or variance approval, shall mean the meeting date at which the respective Board approved said application or approved said application with conditions. For purposes of this Subsection, "substantial amendment" shall mean an amendment or modification (or a proposed amendment or modification) to an application, approval or permit which, in the determination of the Planning and Zoning Director,is sufficiently different from the original application or request that the amendment would require the submission of a new application/request for approval of same. All references to obtaining a building permit shall mean the date of issuance of the permit. 6. After submission of a completed application for a project approval, to the extent a proposed amendment to the Zoning Ordinance would, upon adoption, render the application nonconforming, then the City or any appropriate City Board shall not approve, process or consider an application unless and until: (i) the project has cured the nonconformity or the applicant acknowledges that the City shall fully enforce the adopted Zoning Ordinance amendment(s) against the applicant's application and/or project; (ii)the project qualifies under paragraph 1 or 2 above, subject to paragraph 4; or (iii) a favorable determination has been made by a Court. Except as otherwise provided herein, any proceeding or determination by any City employee, department, agency or Board after a project becomes nonconforming shall not be deemed a waiver of the City's right to enforce any adopted Zoning Ordinance amendments. D.B. Subparagraphs A and B above, shall not apply to proposed amendments to Section 19 of this Ordinance which would designate specific properties or districts as historic. The moratorium regulations applicable to such proposed amendments are set forth in Subsection 19-5 of this Ordinance. B. That Subsection 14-8, entitled "Proposed Comprehensive Plan Amendments - Planning-In-Progress Moratoria on Permits and Approvals"of Section 14 of Zoning Ordinance 89- 2665 of the City of Miami Beach, Florida, is hereby deleted as follows: 4 14-8 PROPOSED COMPREHENSIVE PLAN AMENDMENTS; PLANNING-IN- PROGRESS MORATORIA ON APPLICATION OF EQUITABLE ESTOPPEL TO PERMITS AND APPROVALS A. Whenever the Planning Board has voted to rccommcnd in favor of a proposcd amcndmcnt to the City's Comprehensive Plan thc City Managcr shall issue an administrative order setting forth thc proposcd amendment and establishing a moratorium during which any City employee, board or by all City employees,boards and departments and shall be effective until the proposed amcndmcnt is enacted or rejected by the City Commission. Ilowcvcr, in the event that the City Commission fails to either adopt a resolution providing for transmittal of the proposed amcndmcnt to the - - - -- ■ rcjcct the amcndmcnt within 120 days after receiving comments on the transmitted proposed amcndmcnt from the Department of Community Affairs, said administrative order shall be deemed expired and shall be GA. • ' -- ;.-.•-_ . :::, : : : -- • :,-. : ; :: .-, -: - .:. - ; ' . shall affect any project which has a validly issued and active Full Building by the Planning Board in favor of the proposed zoning amendment. Amendments to the City's Comprehensive Plan snail be enforced against all applications and/or requests for project approval upon the earlier of the favorable recommendation by the Planning Board or the applicable effective date of the Comprehensive Plan amendment, as more particularly provided below. After submission of a completed application for a project approval, to the extent a proposed amendment to the Comprehensive Plan would,upon adoption,render the application nonconforming,then the following procedure shall apply to all applications considered by the City or any appropriate City Board. 1. In the event the applicant: (a) obtains (i) a design review approval, or (ii) a variance approval where no design review approval is required, or(iii) a Full Building Permit as defined in Section 3-2.A.85 of the 5 amissumrsanimea Zoning Ordinance where no design review approval or variance approval is required, and (b) satisfies (a) prior to a favorable recommendation by the Planning Board with respect to any Comprehensive Plan amendment that is adopted by the City Commission within one hundred twenty (120) days after receiving comments on the transmitted proposed amendment from the Department of Community Affairs., then the project shall be presumed to have received a favorable determination that equitable estoppel applies and the subject Comprehensive Plan amendment shall not be enforced against the application and/or project (hereinafter, "favorable determination")., except as otherwise provided in Subsection 14-8.A.4. (In the event the City Commission (a) fails to adopt a resolution providing for transmittal of the proposed amendment to the Department of Community Affairs, or(b)rejects the amendment within ninety (90) days after a favorable recommendation by the Planning Board, or(c) fails to enact or rejects the amendment within one hundred twenty (120) days after receiving comments on the transmitted proposed amendment from the Department of Community Affairs, then the project shall no longer be deemed nonconforming). 2. In the event the applicant: (a) obtains (i) a design review approval, or (ii) a variance approval where no design review approval is required, or(iii) a Full Building Permit as defined in Section 3-2.A.85 of the Zoning Ordinance where no design review approval or variance approval is required, and (b) satisfies (a) prior to the effective date of any Comprehensive Plan amendment where there was an unfavorable recommendation by the Planning Board with respect to the Comprehensive Plan amendment, or when the Planning Board recommends favorably but the City Commission rejects the amendment within the specified ninety (90)day period, or the City Commission fails to enact or rejects the amendment within one hundred twenty (120) days after reviewing comments on the transmitted proposed amendment from the Department of Community Affairs., 6 then the project shall be presumed to have received a favorable determination and the subject Comprehensive Plan amendment shall not be enforced against said application and/or project, except as otherwise provided in Subsection 14-8A.4. 3 In the event an applicant does not qualify under Subsection 1 or 2 hereof for a presumption of a favorable determination to avoid enforcement of adopted amendments against an application and/or project,then said applicant may seek a determination from a courtof competent jurisdiction ("Court") as to whether equitable estoppel otherwise exists. If. however, an applicant fails to seek a determination from the Court, or if the Court has made a determination unfavorable to the applicant, and such determination is not reversed on appeal, then, the City shall fully enforce the adopted Zoning Ordinance amendment(s) against the applicant's application and/or project. 4. Any presumption of a favorable determination under Subsections 1 and 1 or any determination of equitable estoppel under Subsection 3 herein, shall lapse contemporaneously with the failure, denial, expiration,withdrawal, or substantial amendment of the application.. approval, or permit relative to the project to which the favorable determination is applied. 5. For purposes of this Subsection, all references to obtaining design review approval, or variance approval, shall mean the meeting date at which the respective Board approved said application or approved said application with conditions. For purposes of this Subsection, "substantial amendment" shall mean an amendment or modification (or a proposed amendment or modification) to an application, approval or permit which, in the determination of the Planning and Zoning Director, is sufficiently different from the original application or request that the amendment would require the submission of a new application/request for approval of same. All references to obtaining a building permit shall mean the date of issuance of the permit. 6. After submission of a completed application for a project approval, to the extent a proposed amendment to the Zoning Ordinance would, upon adoption. render the application nonconforming, then the City or any appropriate City Board shall not approve, process or consider an application unless and until: (i) the project has cured the nonconformity or the applicant acknowledges that the City shall fully enforce the adopted Zoning Ordinance amendment(s) against the applicant's application and/or project: (ii)the project qualifies under paragraph 1 or 2 above, subject to paragraph 4: or (iii) a favorable 7 determination has been made by a Court. Except as otherwise provided herein an .roceedin. or determination b an Cit employee, department, agency or Board after a project becomes nonconforming shall not be deemed a waiver of the City's right to enforce any adopted Zoning Ordinance amendments. B. Subparagraphs A and B above, shall not apply to proposed amendments to Section 19 of this Ordinance which would designate specific properties or districts as historic. The moratorium regulations applicable to such proposed amendments are set forth in Subsection 19-5 of this Ordinance. SECTION 2. INCLUSION IN ZONING ORDINANCE NO. 89-2665. 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 City of Miami Beach Zoning Ordinance No. 89- 2665 as amended;that the sections of this Ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. SECTION 3. REPEALER. That all Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 4. SEVERABILITY. If any section, subsection,clause or provision of this Ordinance is held invalid,the remainder shall not be affected by such invalidity. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect on the 25th day of July , 1998. PASSED and ADOPTED this 15th day of July , 1998. ATTEST: (l' MAYOR (26(tukf. Pault,e4 CITY CLERK APPROVED AS TO FORM& �A� ` 1`' ' F:\ATTO\CRUDORD\EQUITEST.ORD July Ib,Ma 1st reading 6/17/98 & FOR EXECUa' N 2nd reading 7/15/98 8 CI Attorne • • 7ITY OF MIAMI BEACH :ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH,FLORIDA 33139 ittp:\\ci.miami-beach.fl.us COMMISSION MEMORANDUM NO. 4-9 _9 S TO: Mayor Neisen O. Kasdin and DATE: July 15, 1998 Members of the City Co. mission FROM: Sergio Rodriguez 4/ City Manager SUBJECT: Second Re. ;in: Hearing - An Ordinance of the Mayor and City Commission of the City of Miami Beach, Florida, Amending Comprehensive Zoning Ordinance No. 89-2665 by Amending Section 14, Entitled "Changes and Amendments,by Amending Subsection 14-7, Entitled "Proposed Zoning Ordinance Amendments -- Zoning-In-Progress Moratoria on Permits and Approvals," by Deleting Subsections 14-7(A) and (B), and Amending Subsection 14-7(C) to Provide for the Application of Equitable Estoppel to Certain Projects and to Provide for Review for Projects Which Are Not Presumed to Have Achieved Equitable Estoppel and by Amending Section 14- 8, Entitled "Proposed Comprehensive Plan Amendments-- Planning-In- Progress Moratoria on Permits and Approvals;" by Deleting Subsections 14- 8(A)and(B),and Amending Subsection 14-8(C)to Provide for the Application of Equitable Estoppel to Certain Projects Which Are Not Presumed to Have Achieved Equitable Estoppel; Providing for Inclusion in the Zoning Ordinance, Repealer, Severability and an Effective Date. RECOMMENDATION The Administration recommends that the City Commission, upon second reading public hearing, adopt the proposed Ordinance. BACKGROUND On January 7, 1998,the Mayor and Commission adopted an amendment to Sections 14-7 and 14-8 of the Zoning Ordinance,which modified the ability of development projects to gain exemption from the zoning-in-progress and planning-in-progress moratoria. The amendment required that projects had to have received Design Review approval, a variance, or have an active Full Building Permit prior to an affirmative vote by the Planning Board on a zoning amendment in order for the developer or builder to be exempt from the zoning-in-progress and planning-in-progress moratoria. Previously, to be exempted, developers and builders needed to only submit a completed application meeting all submission requirements to the appropriate Board (or Building Department). AGENDA ITEM J DATE 5-9E �, • . On February 18, 1998,the Mayor and Commission issued a request to the City Attorney to explore legal methods of addressing projects for which applications for design review approval were filed prior to the effective date of the City's recent amendments to the Zoning Ordinance. The City Attorney's report concluded that the strict language of the Zoning Ordinance by its express terms does not create a vested property right and only authorizes the processing of an application made prior to either zoning-in-progress or planning-in-progress moratoria. Resolution No. 98-22720 was adopted on April 15, 1998 by the City Commission setting a policy decision presuming equitable estoppel has been achieved for any project which has obtained a design review approval, variance approval, or a validly issued and active full or partial building permit (including demolition), prior to the adoption of any zoning amendment that renders the project nonconforming. On April 15, 1998 the City Commission referred to the Planning Board an amendment to Zoning Ordinance No. 89-2665 to revise the zoning-in-progress and planning-in-progress moratoria provisions by deleting same and providing for a presumption of equitable estoppel to have been achieved for any project which has obtained a design review approval, variance approval, or a validly issued and active full or partial building permit (including demolition), prior to the affirmative recommendation of the Planning Board with regard to the adoption of any zoning or Comprehensive Plan amendment that renders the project nonconforming. The Planning Board held a public hearing on May 26, 1998, and voted 4-2,to recommend approval of the proposed Ordinance with further amending language. The Planning Board recommended removing the exemptions for demolitions and partial building permits and requiring, instead, Full Building Permit, in the absence of a Design Review approval or variance approval. The Planning Board also recommended that projects that do not meet concurrency would only be eligible for a presumption of equitable estoppel with the submission of a feasible mitigation plan, prior to design review approval or variance approval (when design review approval is not required). On June 17, 1998, the version of the Ordinance requiring Design Review approval, variance approval or Full Building Permit in order for a project to be presumed to have equitable estoppel was approved on first reading(5-2)with certain textual clarifications as suggested by the City Attorney's office. The Planning Board's recommendation to broaden the requirements of the Ordinance regarding mitigation plans was not accepted. ANALYSIS The recent legal opinion by the City Attorney that the existing language of the Zoning Ordinance does not provide for vested rights,requires that the City determine whether a project has proceeded in good faith reliance on an act or omission of the City whereby equitable estoppel may be presumed. To this end, this amendment to the Zoning Ordinance is proposed to provide for an automatic presumption of equitable estoppel for those projects which have received Design Review approval, a variance, or have an active Building Permit; these are the same criteria previously established by the City Commission on January 7, 1998, for exempting projects from zoning-in- progress and planning-in-progress moratoria. The proposed amendment to the Zoning Ordinance will serve to clearly define and codify the point at which a project is presumed to have achieved equitable estoppel with respect to prospective applicants. The amendment states that any project which has obtained either a design review approval, a variance approval or which has a validly issued full and active building permit prior to an amendment to the Zoning Ordinance rendering said project nonconforming shall be presumed to have achieved equitable estoppel. (Note: Reference to obtaining design review approval,or variance approval shall mean the meeting date at which the respective Board approved said application or approved said applicant with conditions, and not the rendition of an order documenting same; further, the reference to building permit shall mean the date of issuance of such a permit.) Projects will have to have obtained the aforementioned approvals prior to favorable recommendation by the Planning Board of an amendment to the Zoning Ordinance or Comprehensive Plan, or in the absence of said favorable recommendation,the adoption of the amendment by the City Commission rendering said projects nonconforming. By clearly defining and codifying the point at which development projects are presumed to have achieved equitable estoppel by setting these benchmarks,the City should be able to set aside a large number of projects that clearly meet the minimum criteria. This will allow more time and effort to address the review of projects not presumed to have equitable estoppel based on established review criteria, either before a Special Master as set forth in Section 2-35 of the City Code,or by some other method yet to be determined. CONCLUSION Based on the foregoing, the Administration has concluded that the City Commission should adopt the proposed Ordinance on second reading upon holding a public hearing,as it would automatically establish equitable estoppel rights for development projects which have either design review approval, a full building permit or variance approval. Such an ordinance amendment would be consistent with both the prior interpretation of the Code by the Administration and the current provisions of the Code regarding zoning-in-progress and planning-in-progress moratoria recently approved by the City Commission; it would also clarify the issue of which projects have achieved a presumption of equitable estoppel rights. SR \lr\RGL\rgl F:\PLAN\$ALL\CC MEMOS\1340CMM2.98 a) U cc$ • M • *� .H . M TJ • co O • 01/4 CIO 0 O •H o 493 fzl N H U bO a) 1--i 'J •r-1 124z v 0 H CO f. A 0 a) a, 0 a) O if) 1/40 1/40car)CA I •rl Ol b CO a) • AO z