RESOLUTION 88-19139 RESOLUTION NO. 88-19139
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA NOTICING THE
REPEAL OF THOSE PARAGRAPHS IN SECTION 8 OF
THE MIAMI BEACH CITY CHARTER CONCERNING
ELECTORATE APPROVAL OF ADULT CONGREGATE
LIVING FACILITIES AND/OR NURSING HOMES IN THE
CITY OF MIAMI BEACH, UNANIMOUS VOTE OF
GOVERNING BODY FOR ADULT CONGREGATE LIVING
FACILITIES AND/OR NURSING HOME CONDITIONAL
USE APPROVAL, AND ELECTORATE APPROVAL FOR
INCREASED ZONING DENSITY VARIANCE FOR LOW
INCOME HOUSING PROJECTS.
WHEREAS, the last five paragraphs in Section 8 of the Miami
Beach City Charter, concerning Adult Congregate Living Facilities
read as follows:
The electors of the City of Miami Beach shall vote on
and approve any zoning ordinance that establishes
criteria for adult congregate living facilities,
(ACLF) , and or nursing homes to be located within the
city limits of Miami Beach.
A request for conditional use approval for an adult
congregate living facility, (ACLF) , or nursing home
facility, located within the city limits of Miami
Beach, shall require a unanimous vote of the total
membership of the governmental body authorized to grant
such approval .
There shall be a health advisory board that will hold
regular meetings to review and advise the
administration and the commission of all matters that
relate to the health, welfare, and safety of the
citizens of Miami Beach.
The composition of the board shall consist of
administrators of local hospitals, an administrator
from an ACLF, a representative from the nursing
profession, two (2) citizens who are health providers,
and three (3) consumers. There shall be ex-officio a
representative from the social services department, a
representative from the police department, and a
representative from the fire rescue department. These
appointments shall be made by the city manager for a
period not to exceed two (2) years.
A request for an increased zoning density variance for
low-income housing projects shall require a vote of
approval from the majority of electors voting in a
general election.
WHEREAS, all of the aforementioned provisions, except the
3rd and 4th paragraphs printed hereinabove dealing with the
establishment and composition of the Health Advisory Board, have
been held invalid in Burstyn v. City of Miami Beach, Eleventh
Judicial Circuit Court Case No. 84-07272 CA 13 ; and
1
WHEREAS , in light of said Court Order, the subject
provisions concerning electorate approval of Adult Congregate
Living Facilities and/or nursing homes in the City of Miami
Beach, unanimous vote of governing body for Adult Congregate
Living Facilities and/or nursing home conditional use approval,
and electorate approval for increased zoning density variance for
low income housing projects, are hereby repealed.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that it hereby notices the
repeal of those paragraphs in Section 8 of the Miami Beach City
Charter concerning electorate approval of Adult Congregate Living
Facilities and/or nursing homes in the City of Miami Beach,
unanimous vote of governing body for Adult Congregate Living
Facilities and/or nursing home conditional use approval, and
electorate approval for increased zoning density variance for lo``w
income housing projects.
PASSED and ADOPTED this 20th day of January
1988 . / /
/
OR
ATTEST:
15 11))1 IR4t1",
CITY CLERK
JKO/rg
FORM APPROVED
GAL DE'T.
f
By .vir // 1.
Date r--(3
2
i
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT, IN
AND FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 84-07272 CA 19
DISTRICT XI NURSING HOME AND )
LONG TERM CARE FACILITY )
OMBUDSMAN COUNCIL, DADE COUNTY )
COUNCIL OF SENIOR CITIZENS , )
INC. , CITIZENS ADVOCATING
RIGHTS FOR THE ELDERLY, JUDAH )
BURSTYN, MAX SERCHUK, and )
HARRY PLISSNER )
Plaintiffs , )
vs . )
CITY OF MIAMI BEACH, )
A Florida Municipal )
Corporation, )
)
Defendant . )
FINAL JUDGMENT
DECLARATORY AND INJUNCTIVE RELIEF
This matter coming on to be heard on January 4 , 1988 on
Plaintiffs ' Motion for Summary Judgment, and the Court having
reviewed the Pleadings , Affidavits and Memorandums of Law filed
herein ,in , 9 hav in heard argument of counsel , and being otherwise
fully
advised in the premises , make the following findings of
fact and conclusions of law :
1 . It affirmatively appears from the pleadings and
affidavits before the Court that there are no genuine issues of
material fact and that the plaintiffs are entitled to judgment as
a matter of law.
2. Plaintiffs allege that an Amendment to the City Charter
of the City of Miami Beach , adopted at a special election held on
November 1 , 1983 , violated Florida law of general application and
the Constitutions of the State of Florida and the United States
of America . The Charter Amendment at issue provides as follows :
The undersigned duly
dersi ned qualified electors of the City
of Miami Beach , Florida , petition the City Commission to
place before the electors of the City at the earliest
possible . time and without delay, the following proposed
amendment to the City Charter, in accordance with
34
Section 5 .03 of the Home Rule Charter of Metropolitan
Dade County, Florida :
Section 8 of the City Charter shall he amended by
adding thereto the following additional paragraph:
THE CITIZENS OF MIAMI BEACH SHALL VOTE ON HEALTH,
WELFARE, AND SAFETY ISSUES THAT MATERIALLY AFFECT THE
BEST INTERESTS OF THE CITY.
A. The electors of the City of Miami Beach shall vote
on and approve any zoning ordinance that estab-
lishes criteria for Adult Congregate Living Facil-
ities , ( ACLF ) , and or Nursing Homes to be located
within the city limits of Miami Beach .
B . A request for a conditional use approval for an
Adult Congregate Living Facility, (ACLF) , or Nurs-
ing Home facility , located within the city limits
of Miami Beach , shall require a unanimous vote of
the total membership of the governmental body
authorized to grant such approval .
C. There shall be a Health Advisory Board that will
hold regular meetings to review and advise the
Administration and the Commission of all matters
that relate to the Health, Welfare , and Safety of
the citizens of Miami Beach .
The composition of the Board shall consist of
Administrators of local hospitals , and
Administrator from an ACLF, a representative
from the Nursing profession, 2 citizens who
are Health providers , and 3 consumers . There
shall be ex-of is io a representative from the
Social Services Department , a representative
from the Police Department, and a representa-
tive 'from the Fire Rescue Department . These
appointments shall be made by the City Manager
for a period not to exceed 2 years .
D. A request for an increased zoning density variance
for low-income housing projects shall require a
vote of approval from the majority of electors
voting in a general election .
This amendment , if approved , shall become effective
on the day following the election .
I declare that the intention of the undersigned in
signing the Petition is that if any part of the foregoing
amendment should be finally held invalid for any reason by a
court of competent jurisdiction , it shall not affect the
right of the electors to vote on the remainder of the amend-
ment or any valid part thereof .
3 . The Court finds that Part A of the Charter Amendment ,
adopted on November 1 , 1983 , and now incorporated in Section 8 of
the Charter of the City of Miami Beach , and which reads : "The
electors of the City of Miami Beach shall vote on and approve any
zoning ordinance that establishes criteria for Adult Congregate
Living Facilities , (ALCF) , and or Nursing Homes to he located
within the city limits of Miami Beach" conflicts with Florida law
35
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• OFFICE OF THE CITY ATTORNEY
64
434,
wead
F L O R 1 D A •
(11,111,5
PM Bf7
ARNOLD M. WEINER ,* TT'* P.O.BIN 190000
� MIAMI BEACH,FLORIDA 33119
CITY ATTORNEY '�.,H 26__
TELEPHONE: 673-7470
COMMISSION MEMORANDUM 36 -8B
DATE: JAN. 20, 1988
TO: Mayor Alex Daoud and
Members of the City Commission
FROM: Arnold M. Weiner af, 4,t)
City Attorney •
SUBJECT: BURSTYN V. CITY OF MIAMI BEACH, ELEVENTH JUDICIAL
CIRCUIT COURT CASE NO. 84-07272 CA 19: AMENDMENT TO
SECTION 8, MIAMI BEACH CITY CHARTER
On January 5 , 1988, Judge Jack M. Turner of the Eleventh Circuit
Court in and for Dade County, Florida, entered Final Judgment for
Declaratory and Injunctive Relief (attached hereto) , granting
Plaintiff' s Motion for Summary Judgment in the above-styled
cause; the Judge ' s ruling effectively invalidates all of those
paragraphs in Section 8 of the Miami Beach City Charter dealing
with Adult Congregate Living Facilities, except those provisions
concerning the establishment and composition of the Health
Advisory Board.
Moreover, pursuant to the Stipulation entered into in September,
1987 between the parties, no attorney' s fees or costs have been
assessed against the City of Miami Beach in exchange for the
City' s agreement not to appeal the subject order.
In light of the above, a Resolution noticing the repeal of the
relevant paragraphs of Section 8 of the City Charter is attached
hereto for Commission passage.
AMW/rg
AGENDA
ITEM
DATE I - -88
OFFICE OF THE CITY ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139
of general application to all municipalities and is , therefore ,
•
void .
4 . A municipal charter provision is invalid if it conflicts
with Florida law of general application. Board of Cty. Com' rs .
of
Dade Countyv. Wilson , 386 So. 2d 556 ( Fla. 1980 ) . Section
166 .041 , Fla. Stat . ( 1985 ) proscribes the method of amending
ordinances. The Court finds that• Part A of the Charter
Amendment, by
requiring a condition precedent referendum, is in
conflict with Section 166 .041 . See, City of Tamarac v . Sabal
Palm Golf Club , 382 So. 2d 139 ( Fla. 4th DCA 1980 ) .
5. The Court finds that Part B of the Charter Amendment ,
adopted on November 1 , 1983, and now incorporated in Section 8 of
the Charter of the City of Miami Beach , and which reads : "A
request for conditional use approval for an Adult Congregate
LivingFacility,
(ACLF) , or Nursing Home facility, located within
the citylimits of Miami Beach, shall require a unanimous vote of
the total membership of the governmental body authorized to grant
such h a roval" conflicts with Florida law of general applica-
tion. ThisP rovision is in conflict with Section 166 . 041 ( 4 ) ,
Fla . Stat . ( 1985) which provides that: "An affirmative vote of a
majority of a quorum present shall be necessary to enact any
ordinance or adopt any
resolution." It is also in conflict with
Section 166 . 041 because it is inconsistent with the requirement
that the method for the adoption of all ordinances and
resolutions be uniform.
6,. The Court finds that Part D of the Charter Amendment ,
adopted on November 1 , 1983 and now incorporated in Section 8 of
the Charter of the City of Miami Beach, and which reads : "A
request for an increased zoning density variance for low-income
prhousingojects rojects shall require a vote of approval from the
majority of electors voting in a general election" conflicts with
Y
Florida law of general application .
7 . The Court further finds that the granting of a variance
is aQ uas i-judicial function of the Board of Adjustment or
governingbody,
vernin not subject to referendum. Town of Indianlantic
- 3 -
v. Nance , 400 So. 2d 37 ( Fla . 5th DCA 1981 ) , aff 'd , 419 So. 2d 1046
( Fla. 1982) .
8 . The Court finds it unnecessary to rule on the other
reasons asserted by plaintiffs for declaring the Charter Amend-
ment invalid and of no force and effect.
THEREFORE, it is ORDERED, ADJUDGED and DECREED that :
A. This Court has jurisdiction over the parties to this
cause and the subject matter. '.
B. Plaintiffs ' Motion for Summary Judgment is hereby
GRANTED.
C. Final injunctive and declaratory relief is hereby
entered in favor of Plaintiffs , and against Defendant, the CITY
OF MIAMI BEACH, declaring that Parts A, B and D of the amendment
to Section 8 of the Charter of the City of Miami Beach , adopted
on November 1 , 1983 , are invalid and of no force and effect and
permanently enjoining defendant , the CITY OF MIAMI BEACH, from
enforcing the provisions of Parts A, B and D of the Charter
Amendment.
D. Each party shall bear its own costs and expenses . No
damages were sought and attorneys fees were waived .
E. The -Court retains jurisdiction of the matter for the
purpose of entering any further orders as may be necessary and
proper to enforce or otherwise insure that the provisions hereof
are fully and completely carried out and followed .
DONE and ORDERED in Chambers , at Miami , Dade County,
Florida , this....5 day of January, 1988 .
r
CK M
Jack R. Turner
Circuit Court Judge
Copies furnished to:
Peter M. Siegel , Esq.
Greg M. Gaebe, Esq.
37
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ORIGINAL
RESOLUTION NO. 88-19139
(Noticing the repeal of those paragraphs
in section 8 of the Miami Beach City Charter
concerning electorate approval of Adult
Congregate living Facilities and/or nursing
homes in the City of Miami Beach, unanimous
vote of governing body for Adult Congregate
Living Facilities and/or nursing home
conditional use approval, and electorate
approval for increased zoning density
variance for low income housing projects)