Loading...
Ordinance 2018-4164ORDINANCE NO. 2018 -4164 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, EXTENDING THE TEMPORARY MORATORIUM UNDER ORDINANCE 2017 -4134, THROUGH JANUARY 31, 2018, 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 JANUARY 31, 2018; 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, thereafter, the moratorium was extended to December 31, 2017 in order to complete the analysis and review of the various medical uses; and WHEREAS, the moratorium is set to expire December 31, 2017; and WHEREAS, second reading of the underlying substantive ordinance is scheduled for second reading on December 13, 2017, however, the Miami Herald did not properly advertise second reading, and the current moratorium expires on December 31, 2017; and WHEREAS, due to the need to re- advertise second reading, public hearing, additional time is needed to implement the regulations and, the City, therefore, seeks to extend the moratorium through January 31, 2018; 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 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. WC/ 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 January 31, 2018. 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 authorized under Ordinance 2017- 4134, that was set to expire on December 31, 2017, is hereby extended through January 31, 2018. 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 3 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 through January 31, 2018, 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 /7 day of J'hun'y 2018. ATTEST: Dan Gelber, Mayor Rafa E. Granado, ity C First Reading: Dece Second Reading: Janua l v Verified by: Thomas Mooney, Al P Planning Director (Sponsored by: Vice -Mayor John Elizabeth Aleman) Underscore denotes new language 4 APPROVED AS TO FORM & LANGUAG & FOR EXECUTIO ity ' orney /a-/ 0; -' Date MAM BEACH Ordinances - R5 H COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Raul Aguila, City Attorney DATE: January 17, 2018 10:35 a.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 -4134, THROUGH JANUARY 31, 2018, 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 JANUARY 31, 2018; FOR ZONING IN PROGRESS PURPOSES, THIS ORDINANCE SHALL BE EFFECTIVE UPON FIRST READING OF THIS ORDINANCE. RECOMMENDATION Please see attached Memorandum. Legislative Tracking Office of the City Attorney Sponsor Vice -Mayor John Elizabeth Aleman ATTACHMENTS: Description Page 496 of 923 o Memorandum o Ordinance Page 497 of 923 MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.mlamlbeachfl.gov COMMISSION MEMORANDUM TO: Mayor Philip Levine and Members of the City Commission FROM: Raul Aguila, City Attorney DATE: January 17, 2018 SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, EXTENDING THE TEMPORARY MORATORIUM UNDER ORDINANCE 2017 -4134, THROUGH JANUARY 31, 2018, ON THE ACCEPTANCE, REVIEW, APPROVAL, OR ISSUANCE OF ANY LAND DEVELOPMENT PERMITS (AS THE TERM IS DEFINED IN SECTION 1613164(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 JANUARY 31, 2018; FOR ZONING IN PROGRESS PURPOSES, THIS ORDINANCE SHALL BE EFFECTIVE UPON FIRST READING OF THIS ORDINANCE. ADMINISTRATION RECOMMENDATION The City Attorney's Office and the City Administration recommends that the City Commission approve the subject Ordinance at First Reading and set a Second Reading Public Hearing. The effective date of the ordinance would be upon first reading on December 13, 2017, and retroactive to the initial moratorium date of February 8, 2017. HISTORY On February 8, 2017, the City Commission approved a six month 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 Page 498 of 923 Commission Memorandum Assisted Living Facility and Medical Use Moratorium January 17, 2018 Page 2 of 3 residential medical rehabilitation centers, and any similar or derivative uses associated with such uses. As the City was continuing to work on the draft ordinance, the City Commission extended the temporary moratorium through December 31, 2017. If the underlying medical use ordinance were adopted prior to December 31, 2017, then, the moratorium would expire on that earlier date. The City Commission, as can be seen from the delineated history below, was scheduled to adopt the medical use ordinance on October 18, 2017, and then was postponed to October 31, 2017. Ultimately, the item was deferred to December 13, 2017. As seen in the Letter to the City Commission (LTC 586 - 2017), the Miami Herald erroneously advertised the second reading, public hearing on the City's medical use ordinance in the Northwest Version of Neighbors and not the Beaches' Neighbors section. As such, the advertising for second reading, public hearing scheduled for December 13, 2017 is defective and the item was must deferred until the January City Commission meeting. Based upon the foregoing, and as the moratorium will expire on December 31, 2017, the City Commission is urged to extend the moratorium, retroactive to first reading on December 13, 2017, through January 31, 2018. This would prevent any "gap" in the existing moratorium and allow the City to implement the medical use ordinance during the City Commission's January commission meeting. The extension ordinance was unanimously approved by the City Commission at first reading. Underlying Ordinance that is the purpose for the Moratorium On February 8, 2017, at the request of Commissioner John Elizabeth Aleman, the City Commission referred an item relating to medical uses to the Land Use and Development Committee (Item C4K). On February 15, 2017, the Land Use and Development Committee discussed the medical use item and continued it to March 8, 2017. On March 8, 2017, the Land Use and Development Committee discussed the item and continued it to the April 19, 2017 meeting. On April 26, 2017, the City Commission referred the medical use ordinance to the Health Advisory Committee for discussion and recommendation (Item C4E). On May 15, 2017, the Health Advisory Committee discussed the item and recommended that it have a workshop to review the proposal in further detail prior to making a recommendation. On June 14, 2017, the Land Use and Development Committee discussed the medical use ordinance and took no action. On June 19, 2017, the Health Advisory Committee held a workshop and recommended that the medical use ordinance incorporate the modifications provided in an attached handout. On June 28, 2017, the City Commission referred the proposed medical use ordinance to the Planning Board for review and recommendation (Item C4A). The medical use ordinance was passed on first reading during the September 18, 2017 meeting of the City Commission. Second reading, public hearing, was scheduled for October 18th, then October 31st, and, ultimately, continued to December 13, 2017. On December 13, 2017, the second reading public hearing item was opened and continued to January 17, 2018 due to the Miami Herald advertising error. Page 499 of 923 Commission Memorandum Assisted Living Facility and Medical Use Moratorium January 17, 2018 Page 3 of 3 BACKGROUND The City has identified the need to update the City Code as it pertains to definitions and 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 revised to include proper iicensure requirements and to comply with state law requirements. The moratorium extension ensures that the City addresses the above zoning concerns and that the City is not processing applications that would be inconsistent with the proposed medical use zoning ordinance. CONCLUSION The underlying medical use ordinance is scheduled for second reading, public hearing for January 17, 2018. The Administration recommends that the City Commission approve the moratorium Ordinance at second reading public hearing. The effective date of the ordinance would be upon first reading on December 13, 2017, and retroactive to the initial moratorium date of February 8, 2017. The moratorium extension would be through January 31, 2018. Page 500 of 923