Ordinance 2018-4185PLANNING BOARD CUP APPEAL STAYS
ORDINANCE NO. 2018 -4185
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE
CITY OF MIAMI BEACH BY AMENDING CHAPTER 118 OF THE LAND
DEVELOPMENT REGULATIONS, ENTITLED "ADMINISTRATION AND
REVIEW PROCEDURES," BY AMENDING ARTICLE I, ENTITLED
"ADMINISTRATION AND REVIEW PROCEDURES," BY AMENDING
SECTION 118 -9, ENTITLED "REHEARING AND APPEAL
PROCEDURES," TO ALLOW THE ISSUANCE OF A BUILDING PERMIT
TO AN APPLICANT WHOSE PLANNING BOARD CONDITIONAL USE
APPROVAL APPLICATION IS ON APPEAL, ALLOWING AN
EXCEPTION TO THE CITY'S RULE THAT REQUIRES FINAL
RESOLUTION OF ALL ADMINISTRATIVE AND COURT PROCEEDINGS,
SO LONG AS THE CERTAIN CONDITIONS CONTAINED IN 118 -9 ARE
COMPLIED WITH, AND PROVIDED THE APPLICANT EXECUTES A
WRITTEN AGREEMENT HOLDING THE CITY HARMLESS AND
INDEMNIFYING THE CITY FROM ANY LIABILITY OR LOSS SHOULD
THE COURT PROCEEDINGS NOT END FAVORABLY TO THE
APPLICANT; AND PROVIDING FOR CODIFICATION; REPEALER;
SEVERABILITY; AND AN EFFECTIVE DATE.
WHEREAS, the City's Land Development Regulations, at Chapter 118, Article IV,
establish a process to determine if certain uses, referred to as conditional uses, should be
permitted, given a particular location; and
WHEREAS, the Land Development Regulations grant the Planning Board the power and
duty to consider conditional use permit applications; and
WHEREAS, conditional use permit application hearings are public, quasi- judicial
hearings for which notice is provided to neighboring properties; and
WHEREAS, the Planning Board may approve conditional use permit applications in
accordance with the procedures and standards set forth in the Land Development Regulations;
and
WHEREAS, the purpose of a Planning Board hearing on a conditional use permit
application is to analyze the facts particular to the application, and weigh all pertinent factors to
determine the impacts of the proposed use on neighboring properties; and
WHEREAS, the Land Development Regulations set forth the regulations through which
the approval of a conditional use permit may be appealed; and
WHEREAS, pursuant to City Code Section 118- 9(c)(5), "[a]n appeal of a board order
stays all work on the premises and all proceedings in furtherance of the action appealed from,"
unless one of two exceptions applies; and
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WHEREAS, accordingly, the Land Development Regulations do not permit the issuance
of a building permit, certificate of occupancy, or a business tax receipt during the pendency of
an appeal (to Circuit Court) of a conditional use permit; and
WHEREAS, pursuant to the Florida Rules of Appellate Procedure, Planning Board
orders on applications for conditional use permits may be reviewed by petition for writ of
certiorari, which must be filed in Circuit Court; and
WHEREAS, appeals to Circuit Court can delay the development of a project and render
the finalization of a project financially impracticable; and
WHEREAS, this Ordinance creates a very limited exception to the automatic stay
provisions in City Code Section 118- 9(c)(5), in order to allow an applicant to be issued a
building permit, pending an appeal of an order granting a conditional use permit. However, the
applicant would only be eligible for this exception to the automatic stay provisions if strict
conditions are met; and
WHEREAS, in order to invoke the provisions of this Ordinance, the applicant would be
required to assume all risks associated with the pending appeal, including the possibility that the
applicant would be required to restore the property to its original condition, in the event that the
conditional use permit is reversed; and
WHEREAS, the amendments set forth below are necessary to accomplish all of the
above objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. Chapter 118 is hereby amended as follows:
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 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 Land Development Regulations. As used herein, "land use
board(s)" shall mean the board of adjustment, design review board, historic preservation board
and planning board.
(c) Appeals of land use board applications:
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(1) Decisions of the following shall be final, and there shall be no further review
thereof except by resort to a court of competent jurisdiction by petition for writ of
certiorari:
A.
B.
C.
D.
E.
Planning board.
Board of adjustment.
Design review board, with respect to variance decisions and
administrative appeals, only.
Historic preservation board, with respect to variance decisions and
administrative appeals, only.
Historic preservation special master.
(5) Stay of work and proceedings on appeal. An appeal of a board order stays all
work on the premises and all proceedings in furtherance of the action appealed
from, unless one of the exceptions below applies:
(i)
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 for good cause shown; or
44 If the appeal arises from an application for development review board
the final order shall contain appropriate conditions to stay its
cffcctivcnc c until the final r
uch hearing approval, shall be iosued until
by the city attorney. The applicant for such land use board hearing shall
hold the city harmless and agree to indemnify the city from any liability or
resolution of
administrative and court proceedings shall be provided as required for
notice of hcarings under these land development regulations.
Notwithstanding the foregoing, an appeal to the board or court, or other
• _ _ - • _ •_
lit, full building permit or phased building
permit nor stay the running of the required time period set by board order
ii As applicable only to an appeal arising from the planning board's
approval of a conditional use permit, the city may accept, for review
purposes only, a building permit application during a pending appeal in
circuit court. The applicant shall be required to pay all building permit
fees, which fees shall be nonrefundable. Despite the foregoing, no
building permit shall issue while the circuit court appeal is pending.
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Should the decision on the circuit court a
• •
eal •etition for certiorari
decision be rendered in favor of the conditional use permit applicant, the
applicant may proceed with construction and operations, excluding
entertainment operations, pending any further appeals to the Third
District Court of A eal or other a.•ellate •roceedin•s so Ion • as the
following conditions are met:
a. The building permit may issue and shall remain active until the
final resolution of all administrative and court proceedings;
b. No final certificate of occu•anc CO or certificate of
completion (CC) shall be issued, and no entertainment
operations or entertainment business shall commence or take
place, until the final resolution of all administrative and court
proceedings;
c. The conditional use permit was appealed by a party other than
(i) the city, or (ii) an applicant appealing a denial of a conditional
use permit application;
d. The property subject to the conditional use permit is located
within i a commercial district and ii a historic district-
e. The scope of the conditional use permit is limited to
modifications to an existing structure.,
f. The applicant shall, prior to the issuance of the building permit,
either: (i) place funds in escrow, or (ii) obtain a bond, either of
which must be in an amount that is at least equal to or greater
than 100 percent of the value of the work proposed under the
building permit;
g_ The applicant is not seeking the demolition of any portion of a
contributing structure; and
h. In the event that the conditional use permit is reversed on
appeal, the applicant must immediately amend or abandon the
building permit or building permit application without any liability
to the city, and a CC or CO shall not be issued. Additionally, no
BTR for entertainment shall issue.
In order for a building permit to issue pursuant to this subsection
(c)(5)(ii), _ _ - - _ - - - - - _ - - - _ _ ° pending any further
appeals to the Third District Court of Appeal or other appellate
proceedings, the applicant shall be required to comply with all of the
conditions in subsections (c)(5)(ii)(a) through (h), as well as all
conditions of the conditional use permit. The applicant shall also be
required to execute a written agreement (in a form acceptable to the
city attorney) holding the city harmless and indemnifying the city from
any liability or loss resulting from the underlying appellate or
administrative proceedings, any civil actions relating to the application
of this subsection (c)(5)(ii), and any proceedings resulting from the
issuance of a building permit, and the non - issuance of a TCO, TCC,
CC, CO or BTR for the property. Such written agreement shall also
bind the applicant to all requirements of the conditional use permit,
including all enforcement, modification, and revocation provisions;
except that the applicant shall be ineligible to apply for any
modifications to the conditional use permit or any other land use board
order impacting the property, until the final resolution of all
administrative and court •roceedin•s as certified b the cit attorne
Additionally, the applicant must agree that, in the event that the
conditional use permit is reversed, the applicant shall be required to
restore the property to its original condition. The city may utilize the
bond to ensure compliance with the foregoing provisions.
SECTION 2. REPEALER.
All ordinances or parts of ordinances and all section and parts of sections in conflict
herewith are hereby repealed.
SECTION 3. CODIFICATION.
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 Code of the City of Miami Beach, as
amended; that the sections of this Ordinance may be re- numbered or re- lettered to accomplish
such intention; and that the word "ordinance" may be changed to "section" or other appropriate
word.
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 ten days following adoption.
PASSED and ADOPTED this 1/ day of A/96/ , 2018.
ATTEST-: —;
Rafael'E. Granado, City Cler
r
INCor pi
First Reading: January 17, 2018
Second Reading. Febru- y 1 0
Verified By:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXE L' ION
Thomas R. Mo•'ey, Al
Planning Director
City Aitorne
Date
Underline denotes additions; strike through denotes deletions; double underline denotes additions made prior to
Second Reading; and denotes deletions rnade prior to Second Reading.
F:WTTO \BOUE \ORDINANCES \February 14, 2018 \PB Appeal Stays - Second Reading ORD.docx
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MIAM
BEACH
Ordinances - R5 H
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: April 11, 2018
1:30 p.m. Second Reading Public Hearing
SUBJECT: PLANNING BOARD CUP APPEAL STAYS:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE CODE OF THE CITY OF MIAMI
BEACH BY AMENDING CHAPTER 118 OF THE LAND DEVELOPMENT
REGULATIONS, ENTITLED "ADMINISTRATION AND REVIEW PROCEDURES,"
BY AMENDING ARTICLE I, ENTITLED "ADMINISTRATION AND REVIEW
PROCEDURES," BY AMENDING SECTION 118 -9, ENTITLED "REHEARING AND
APPEAL PROCEDURES," TO ALLOW THE ISSUANCE OF A BUILDING PERMIT
TO AN APPLICANT WHOSE PLANNING BOARD CONDITIONAL USE APPROVAL
APPLICATION IS ON APPEAL, ALLOWING AN EXCEPTION TO THE CITY'S RULE
THAT REQUIRES FINAL RESOLUTION OF ALL ADMINISTRATIVE AND COURT
PROCEEDINGS, SO LONG AS THE CERTAIN CONDITIONS CONTAINED IN 118-
9 ARE COMPLIED WITH, AND PROVIDED THE APPLICANT EXECUTES A
WRITTEN AGREEMENT HOLDING THE CITY HARMLESS AND INDEMNIFYING
THE CITY FROM ANY LIABILITY OR LOSS SHOULD THE COURT
PROCEEDINGS NOT END FAVORABLY TO THE APPLICANT; AND PROVIDING
FOR CODIFICATION; REPEALER; SEVERABILITY; AND AN EFFECTIVE DATE.
RECOMMENDATION
The Administration recommends that the City Commission consider the subject Ordinance at Second
Reading. If the Commission concludes that the modifications proposed under Option 'B', as drafted,
are sufficient, it is further recommended that the Ordinance be adopted.
ANALYSIS
HISTORY
On October 18, 2017, at the request of former Mayor Phillip Levine, the City Commission made a
dual referral of the subject amendment to the Land Use and Development Committee and the
Planning Board. On October 30, 2017, the Land Use Committee discussed the proposed
amendment and gave a positive recommendation. Additionally, Commissioner John Elizabeth Aleman
agreed to co- sponsor the original referral of the proposed ordinance.
PLANNING ANALYSIS
The proposal has been put forth by a private property owner to modify the requirements of the City
Code for appeals arising from the Planning Board's approval of a conditional use permit. Currently,
when an application to the City's Land Use Boards is appealed, all work on the premises and all
proceedings in furtherance of the action appealed from, are stayed. The only limited exception is to
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protect imminent peril to life or property.
The original modifications proposed to permit the issuance of building permits, a certificate of
occupancy, and a business tax receipt, all while an appeal is pending, under the conditions outlined in
the original draft ordinance. This would have allowed a business to commence full operations even
while an appeal is pending. The only Conditional Use Permit that is currently pending appeal is
PB16 -0066, 1601 -1618 Drexel Avenue, Time Out Market.
As stated in Section 118 -91 of the City Code, the purpose of the conditional use procedure is to:
"establish a process which is designed to determine if certain uses, referred to as conditional uses
in this article, should be permitted, at a given location. Special review of conditional uses is
required not only because these generally are of a public or semi- public character and are essential
and desirable for the general convenience and welfare of the community, but also because the
nature of the uses and their potential impact on neighboring properties, requires the exercise of
planning judgment as to location and site plan."
Due to the very nature of conditional use permits, which generally encompass high occupancies
(typically from as little as 200 to over 1000 people), and often include entertainment, they have the
potential to impact surrounding properties. As proposed, the ordinance would be limited to appeals of
CUP's for sites that are commercially zoned and located within a local historic district. However, it
must be pointed out that many areas of the city, although zoned commercial, either contain or are
abutting residential uses and zoning districts.
The intent of this legislation, according to the proposer, is to address appeals that can unnecessarily
delay a project, or result in the project not moving forward. Staff has identified the following issues
that should be considered by the City Commission as part of this policy deliberation:
• Those instances where a conditional use permit may not have been properly issued by the Planning
Board because the Board did not follow established and required criteria, policies and /or procedures,
or did not provide procedural due process.
• Those instances where an `applicant' seeks a very intense Conditional Use permit, is denied,
appeals the denial and uses the new stay provisions to operate.
• A stay does not deprive a property owner from use of the property in accordance with the applicable
regulations and allowable uses for a zoning district, or in accordance with previously issued
conditional use permits.
• Should a CUP on appeal be overturned in court, a substantial financial investment may be required
to return the property back to its former condition /operation, if the applicant was eligible and elected
to move forward with a permit and BTR. While an applicant would be required to indemnify the City
of all liability, there is no practical mechanism to force the property owner to modify the space or
operation.
• If an applicant were to spend a large amount of resources on an interior build out and not be able to
operate the venue due to a CUP being overturned, the City could find itself in an awkward position,
as full authorization to execute the work was issued in the form of a building permit. In this regard, as
the regulations governing a building permit are State mandated, careful consideration by the City
Commission should be exercised, should the proposal move forward.
PLANNING BOARD REVIEW
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On November 21, 2017, the Planning Board transmitted the proposed Ordinance Amendment to the
City Commission with a favorable recommendation. The Planning Board also recommended a
number of changes, supported by the proposer, which would remove the allowance to operate a
venue that is under appeal. The recommendations of the Planning Board would limit any activity
during an appeal to preparing, submitting and being issued a building permit only. The draft
ordinance entitled `Planning Board Version', which delineated all of the changes proposed, was
submitted to the City Commission for consideration on December 13, 2017.
SUMMARY/ UPDATE
The subject Ordinance came before the City Commission for First Reading on December 13, 2017,
at which time the sponsor of the item withdrew the original version of the legislation (LUDC version)
and instead put forward the Planning Board version. After discussing the proposal the item was
deferred to the January 17, 2018 meeting.
On January 17, 2018 the City Commission discussed the proposal and approved, at First Reading,
an option put forth by Mayor Gelber (Option `B'). Additionally, the approval at First Reading limited
the applicability of the ordinance to Local Historic Districts. The attached Ordinance includes these
updates.
Subsequent to First Reading approval of the Ordinance, Vice -Mayor John Elizabeth Aleman
withdrew from being the sponsor of the legislation. Commissioner Ricky Arriola is now the sponsor of
the proposal,
As indicated during the discussion at First Reading in December, the Administration has concerns
with the overall scope of the proposal, particularly the unintended consequences down the road.
Specifically, if a CUP on appeal was ever overturned at the conclusion of the appellate process, the
City could find itself in an awkward position, as full authorization to execute work on site could be
issued in the form of a building permit. In addition to the regulations governing a building permit being
State mandated, there could be pressure placed on the City to adopt future code amendments, in
order to accommodate a built space.
The revised proposal (Option 'B') does create a higher bar for an applicant to comply with, including
a requirement for a performance bond or escrow of 100% of the value of the work proposed.
Additionally, the applicable area has been limited to local historic districts, Additionally, requiring stay
on first tiered appeal is consistent with existing code. Furthermore, it ensures that the Court reviewing
the decision is looking at the merits to determine whether due process was provided; whether there
was competent substantial evidence in the record to support the decision; and that the correct law
was applied. Any subsequent appeal would be considered discretionary by the Court. In fact, second
tiered review is not used to redress mere legal error. Rather, it provides a safety net to correct a
miscarriage of justice when no other remedy is available. Allstate Ins. Co. Kaklamanos, 843 2d. 885,
889 (Fla. 2003). This standard is extremely difficult to meet and, therefore, it would be difficult to
overturn the lower court decision.
Based upon the foregoing, the City could legally accommodate the proposed modification to the code
to allow construction in the interim of a second tiered appeal, provided all the safeguards identified in
the revised ordinance are provided by the applicant. Notwithstanding these positive, more protective
changes, the Administration continues to recommend that careful consideration be exercised by the
City Commission, should the proposal move forward.
On February 14, 2018 the City Commission opened and continued the item to a date certain of
March 7, 2018. On March 7, 2018 the item was continued to a date certain of April 11, 2018.
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CONCLUSION
The Administration recommends that the City Commission consider the subject Ordinance at Second
Reading. If the Commission concludes that the modifications proposed under Option `B', as drafted,
are sufficient, it is further recommended that the Ordinance be adopted.
Legislative Tracking
Planning
Sponsor
Commissioner Ricky Arriola
ATTACHMENTS:
Description
n OPTION B ORD - Form Approved 2nd Reading
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