R5N-Transfer Of Authority To Grant Variances To Land Use Boards -Malakoff-COMMISSION ITEM SUMMARY
Gondensed Title:
First Reading to consider an Ordinance Amendment to clarify transfer of the authority to grant
variances to the Historic Preservation and Design Review Board from the Board of Adjustment under
certain circumstances.
lncrease satisfaction with neighborhood character. lncrease satisfaction with development and
Supporting Data (Surveys, Environmental Scan, etc 48o/o of residential respondents and 55% of
businesses rate the effort put forth bv the Citv to requlate
ltem Summary/Recommendation :
FIRST READING
The proposed Ordinance would clarify the transfer of authority to grant variances to the Historic
Preservation and Design Review Boards for applications under their respective jurisdiction from the
Board of Adjustment, as well as clarify and define the role of each board.
The Administration recommends that the City Commission: 1) accept the recommendation of the Land
Use and Development Committee via separate motion; and 2) approve the attached Ordinance at
First Reading and schedule a Second Reading Public Hearing for December 17,2014.
On October 28, 2014 the Planning Board recommended approval of the subject Ordinance by a vote
of 7 to 0 (Planning Board File No.2221).
Financial lnformation:
Source of
Funds:
Amount Account
1
2
3
OBPI Total
Financial !mpact Summary:
ln accordance with Charter section 5.02, which requires that the "City of Miami Beach shall consider
the long-term economic impact (at least 5 years) of proposed legislative actions," this shall confirm
that the City Administration evaluated the long-term economic impact (at least 5 years) of this
proposed legislative action, and determined that there will be no measurable impact on the City's
budqet.
Thomas Mooney
T:\AGENDA\2014\NovembeATransfer of Variance Authority - ORD First Read SUM
AGENDA 'rEn 4 t/V
ome ll-:18-14MIAMIBEACH458
MIAMIBEACH
City of ,niomi Beoch, 1700 Convention Center Drive, Miomi Beoch, Florido 33,l 39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Mayor Philip Levine and Members
Jimmy L. Morales, City Manager
November 19,2014
the City
FIRST READING
Transfer of Authority to Grant Va
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING THE LAND
DEVELOPMENT REGULATIONS OF THE CITY CODE, BY
AMENDING CHAPTER 118, ''ADMINISTRATIVE AND REVIEW
PROCEDURES," BY AMENDING ARTICLE !1, ,,BOARDS", By
AMENDING DIVISION 3, "DESIGN REVIEW BOARD", BY
AMENDING SECTION 118.71, "POWERS AND DUTIES," AND
SECTION 118-75, "QUORUM AND VOTING," TO CREATE, CLARIFY
AND EXPAND THE ROLE AND JURISDICTION OF THE DESIGN
REVIEW BOARD REGARDING VARIANCES; BY AMENDING
DlvlsloN 4, "HlsToRlc PRESERVATION BOARD," By AMENDING
sEcTloN 119-102, "powERS AND DUTIES," AND SECTION 119-
{06, "QUORUM," TO CREATE, CLARIFY AND EXPAND THE ROLE
AND JURISDICTION OF THE HISTORIG PRESERVATION BOARD
REGARDING VARIANCES; BY AMENDING DIVISION 5, "BOARD OF
ADJUSTMENT," SECTION 118-136, "POWERS AND DUTIES," TO
AMEND THE ROLE AND JURISDICTION OF THE BOARD OF
ADJUSTMENT; BY AMENDING ARTICLE Vl, "DESIGN REVIEW
PROCEDURES," SEGTION 119-252, ,,AppLlCABlLlTy AND
EXEMPTIONS," BY MODIFYING AND CLARIFYING THE ROLE OF
THE DESIGN REVIEW BOARD PERTAINING TO SINGLE FAMILY
HOMES; BY AMENDING ARTICLE Vlll, "PROCEDURE FOR
VARIANGES AND ADMINISTRATIVE APPEALS", BY AMENDING
SECTIONS 118.35I, "DETERMINATION OF JURISDICTION", 118.
352, "PROCEDURE,", 118-353,,,VARIANCE AppLlCATlONS," 119-
354, "VARIANGE CONDITIONS AND SAFEGUARDS," 118.355..VARIANCE TIME LIMITS, DECISIONS ESTABLISHMENT OF
PARKING IMPACT FEES, 118-356, "REVOCATION OR
MODIFIGATION OF VARIANCE,' AND CREATING SEGTION 118-
358, "APPEAL OF VARIANCE DECISION," TO MODlFy, EXPAND
AND DELINEATE THE APPLICABLE JURISDICTION OF THE
DESIGN REVIEW BOARD, HISTORIC PRESERVATION BOARD AND
BOARD OF ADJUSTMENT AS IT PERTAINS TO VARIANCES AND
APPEALS , TO FURTHER CLARIFY ALL APPLICABLE SECTIONS
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Commission Memorandum
Ordinance Amendment - Transfer of Authority to Grant Variances
November 19, 2014 Page 2 ot 3
OF ARTIGLE VIII TO ENSURE CONSISTENCY IN ALL VARIANCE
PROVISIONS, AND FURTHER CLARIFYING ALL APPLICABLE
RULES, PROCEDURES AND REGULATIONS FOR VARIANCES;
PROVIDING FOR REPEALER; CODIFICATION; SEVERABILITY AND
AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission accept the recommendation
of the Land Use and Development Committee via separate motion; and approve the
attached Ordinance at First Reading, and schedule a Second Reading Public Hearing
for December 17,2014.
BAGKGROUND
On September 10, 2014, the City Commission adopted, at Second Reading, an
ordinance amending the Land Development Regulations to authorize a transfer of
variance and Floodplain waiver authority from the Board of Adjustment (BOA) to the
Design Review Board (DRB) and Historic Preservation Board (HPB), for those properties
with variance applications within the applicable district. The effective date of the
Ordinance, at the time of adoption, was September 20, 2014.
Subsequent to the adoption of the Ordinance, Planning Department staff realized that
the language of the Ordinance would force a number of BOA applications previously
advertised for the October and November meetings, to be removed from those agendas,
and re-noticed for a different Board in December. ln order to effectuate a proper
transition phase from the BOA to the DRB and HPB, the Administration requested that
the Ordinance be re-considered, in order to revise the effective date. On September 17,
2014, the City Commission reconsidered the motion to adopt the subject Ordinance, and
rescheduled the "new" Second Reading for September 30, 2014. On September 30,
2014, the City Commission continued "new" Second Reading to a date certain of
December 17,2014.
On September 17, 2014, at the request of Commissioner Malakoff, the City Commission
referred additional modifications to Chapter 1 18, relating to variance authority, to the
Land Use and Development Committee and the Planning Board (ltem C4C). The
purpose of these additional modifications is to better clarify the exact roles of the Board
of Adjustment and the DRB/HPB. Additionally the Committee suggested that appeals of
any variances go directly to Circuit Court, as is currently required by variances approved
by the BOA.
ln an effort to address the abovementioned concerns holistically, the proposed
ordinance clarifies the roles of the BOA, DRB and HPB, the applicability of the transfer of
authority to the HPB and DRB, and appeal procedures for variances.
ANALYSIS
The intent of the proposed ordinance amendment is focused on streamlining the City's
land use board public hearing review processes. The amendment would permit variance
requests arising out of the projects being heard by either the DRB and/or HPB, to be
reviewed and voted on by those boards, rather than necessitating the applicant to file a
460
Commission Memorandum
Ordinance Amendment - Transfer of Authority to Grant Variances
November 19, 2014 Page 3 ot 3
separate variance application, and have separate hearings, with the BOA. Similarly, as
matters of flood waivers for historic buildings are better suited for the HPB, and similarly
for pre-1942 architecturally significant homes being heard by the DRB, the proposed
ordinance would transfer the authority of the Flood Plain Management Board from the
BOA to the HPB and DRB for applications within their respective jurisdictions.
The proposed ordinance also requires that any variance request related to distance
separation and other regulations related to alcoholic beverages establishments
permitted in Chapter 6 of the City Code, as well as sections 118-252(b) and 142-1302 ot
the Land Development Regulations remain under the jurisdiction of the Board of
Adjustment.
Additionally, as each land use board typically has its own appeal procedure, the
proposed ordinance clarifies that variances granted by the BOA, HPB, and DRB must be
appealed directly to Circuit Court, as is currently required for variances approved by the
BOA. However, appeal procedures for other orders and certificates granted by the
boards are not affected by this ordinance.
Finally, the subject Ordinance clarifies the role and jurisdiction of each board, as it
relates to variances and appeals.
PLANNING BOARD REVIEW
On October 28, 2014, the Planning Board (by a 7-0 vote) transmitted the proposed
Ordinance to the City Commission with a favorable recommendation.
FISCAL IMPACT
!n accordance with Charter Section 5.02, which requires that the "City of Miami Beach
shall consider the long term economic impact (at least 5 years) of proposed legislative
actions," this shall confirm that the City Administration City Administration evaluated the
long term economic impact (at least 5 years) of this proposed legislative action. The
proposed Ordinance is not expected to have a negative fiscal impact upon the City.
CONCLUSION
The Administration recommends that the City Commission:
1. Accept the recommendation of the Land Use and Development Committee via
separate motion.
2. Approve the attached Ordinance at First Reading and schedule a Second
Reading Public Hearing for December 17,2014.
,rffiJ**/MAB/RAM
T:\AGENDA\2014\November\Transfer of Variance Authority - ORD 1o Read MEM.docx
461
ORDINANGE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CITY CODE, BY AMENDING CHAPTER 118,..ADMINISTRATIVE AND REVIEW PROCEDURES," BY AMEND!NG ARTICLE
ll, "BOARDS"; BY AMENDING DIVISION 3, "DESIGN REVIEW BOARD"; BY
AMENDING SECTION 118-71, "POWERS AND DUTIES;" AND SECTION
118.75, "QUORUM AND VOTING," TO CREATE, CLARIFY AND EXPAND
THE ROLE AND JURISDICTION OF THE DESIGN REVIEW BOARD
REGARDING VARIANCES; BY AMENDING DIVISION 4, "HISTORIC
PRESERVATION BOARD," BY AMENDING SECTION 118-102, "POWERS
AND DUTIES," AND SECTION 118.106, "QUORUM," TO CREATE, CLARIFY
AND EXPAND THE ROLE AND JURISDICTION OF THE HISTORIC
PRESERVATION BOARD REGARDING VARIANCES; BY AMENDING
DIVISION 5, "BOARD OF ADJUSTMENT," SECTION 118.136, "POWERS
AND DUTIES,'TO AMEND THE ROLE AND JURISDICTION OF THE BOARD
OF ADJUSTMENT; BY AMENDING ARTICLE VI, ,DESIGN REVIEW
PROCEDURES,'' SECTION 118-252, "APPLICABILITY AND EXEMPTIONS,"
BY MODIFYING AND CLARIFYING THE ROLE OF THE DESIGN REVIEW
BOARD PERTAINING TO SINGLE FAMILY HOMES; BY AMENDING
ARTICLE VIII, "PROCEDURE FOR VARTANCES AND ADMINISTRATIVE
APPEALS"; BY AMENDING SECTIONS 118-351, "DETERMINATION OF
JURISDICTION"; SECTION 118-352, "PROCEDURE;" SECTION 118-353,
"VARIANCE APPLICATIONS;" 118-354, "VARIANCE CONDITIONS AND
SAFEGUARDS;" SECTION 118-355 "VARIANCE TIME LlMlTS, DECISIONS
ESTABLISHMENT OF PARKING IMPACT FEES;" SECTION 118-356,..REVOCATION OR MODIFICATION OF VARIANCES'' AND CREATING
SECTION 118.358, "APPEAL OF VARIANCE DECISION" TO MODIFY,
EXPAND AND DELINEATE THE APPLICABLE JURISDICTION OF THE
DESIGN REVIEW BOARD, HISTORIC PRESERVATION BOARD AND BOARD
OF ADJUSTMENT, AS IT PERTAINS TO VARIANCES AND APPEALS; TO
FURTHER CLARIFY ALL APPLICABLE SECTIONS OF ARTICLE VIII, TO
ENSURE CONSISTENCY IN ALL VARIANCE PROVISIONS, AND FURTHER
CLARIFYING ALL APPLICABLE RULES, PROCEDURES AND
REGULATIONS FOR VARIANGES; PROV!DING FOR REPEALER;
CODIFICATION; SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, on August26,2014, the electorate of the City of Miami Beach voted in favor
of amending the City's Related Special Acts, Section 2 regarding the City's Board of Adjustment
to except from the board's jurisdiction those variance requests specified as part of applications
for development approval within the jurisdiction of the Design Review Board or Historic
Preservation Board; and
WHEREAS, the City of Miami Beach Land Development Regulations provide for the
regulation of land and establish the jurisdiction and authority of the various land use boards
within the City, and
WHEREAS, the City Commission has determined that it is in the best interests of the
City to reorganize the responsibilities of the various land use boards, so that the process is
462
made more efficient for property owners seeking development approvals from land use boards;
and
WHEREAS, when the Design Review Board and Historic Preservation Board are
considering plans that have require variances and / or flood plain waivers, such boards should
also have the authority to grant variances from the land development and flood plain
regulations, where appropriate; and
WHEREAS, this ordinance organizes and clarifies the various sections of the Land
Development Regulations to ensure that the intent of the ballot question is effectuated and to
ensure that there is no ambiguity or inefficiencies in implementation; and
WHEREAS, the amendments set forth below are necessary to accomplish 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, Article ll, "Boards," of the Land Development Regulations of the
Miami Beach City Code, is hereby amended as follows:
DIVISION 3. - DESIGN REVIEW BOARD
Sec. 118-71. - Powers and duties.
The design review board shall have the following powers and duties:
(1) To promote excellence in urban design.
(2) To review all applications requiring design review approval for all properties not located
within a designated historic district or not designated as a historic site. For works of art
in the art in public places program, the design review board shall serve as advisor to
the city commission, and may impose binding criteria, as provided in chapter 82, article
Vll, art in public places, division 4, procedures.
(3) To prepare and recommend adoption of design plans pertaining to neighborhood
studies.
( ) To promote reduced crime and fear of crime through the use of crime prevention
through environmental design guidelines and strategies, as approved by the city
commission.
(5) To hear and decide appeals of the planning director when deciding matters pursuant to
section 118-260,
(6) To authorize. upon application. variances from the terms of these land develooment
reoulations. where authorized bv section 118-351(a). pursuant to the requirements in
chapter 118. article Vlll. of the land development requlations. as will not be contrarv to
the public interest when. owinq to special conditions. a literal enforcement of provisions
of these land develooment requlations would result in unnecessarv and undue
hardship.
(7) The desion review board shall serve as the Citv's floodplain manaqement board in
reviewino applications for properties within the board's iurisdiction. and shall have the
authoritv to exercise all powers and perform all duties assioned to such board pursuant
to section 54-31. et seq.: Resolution No.93-20698: and in accordance with the
procedures set forth therein as such ordinance and resolution mav be amended from
463
time to time. Forthe purposes of determinino iurisdiction. the criteria in section 118-
351(a) for a variance shall be utilized.
Sec. 118-75. - Quorum and voting.
A quorum shall consist of four regular members. An affirmative vote of four regular members
shall be required to approve an application for design review. Prior to a decision of the design
review board, the ex officio members shall submit a recommendation for each item on the
agenda. An affirmative vote of five reqular members of the board shall be necessary to approve
anv variance request. ln addition, the city attorney shall determine whether a request is
properly before the board. lf an application is denied, the board shall provide a written statement
in support of its finding.
DIVISION 4. - HISTORIC PRESERVATION BOARD
Sec. 1 18-102. - Powers and duties.
The historic preservation board shall:
(1) Recommend to the planning board, and city commission, the designation of historic
buildings, structures, improvements, landscape features, public interiors, and historic
sites or districts.
(2) Prepare and recommend for adoption specific guidelines for each designated site or
district to be used to evaluate the appropriateness and compatibility of proposed
alteration or development within designated historic sites or historic districts.
(3) lssue or deny certificates of appropriateness, certificates to dig and certificates of
appropriateness for demolition in accordance with procedures specified in this division,
excluding certificates of appropriateness for demolition for city-owned buildings and
other improvements as hereinafter specified on city-owned property and public rights-
of-ways, and property owned by the Miami Beach Redevelopment Agency, for which
properties the historic preservation board shall serve as advisor to the city commission.
(4) Recommend restoration of property to its prior condition as required by section 118-
533 when the property has been altered in violation of this division.
(5) To authorize. upon application. such variance from the terms of these land
development requlations. where authorized bv section 118-351(a). pursuant to the
requirements in chapter 118, article Vlll. of the land development requlations. as will
not be contrarv to the public interest when. owinq to special conditions. a literal
enforcement of a provision of these land development reoulations would result in an
unnecessarv and undue hardship. Aelvise-lhe-Searel ef aeljustment wit
varianees asseeiated with preperties designated as histerie sltes, histerie buildings,
ing
er strueture leeated within a histerie distriet er a Natienal Register Distriet threugh
written reeemmendatien te be read inte the reeerd by the planning and zening direeter
in+
(6) Facilitate the redevelopment of historic sites and districts by directing the planning
department, and other city departments, to provide advisory and technical assistance
to property owners, applicants for certificates of appropriateness.
464
(7) Make and prescribe by-laws and application procedures that are reasonably necessary
and appropriate for the proper administration and enforcement of the provisions of this
division. fhe board shall prescribe forms for use by applicants when requesting action
under this division. The board may authorize any one of its members to administer
oaths and to certify official documents.
(8) Award historic markers or plaques upon the recommendation of the city manager and
with the consent of the city commission.
(9) Update and revise the historic properties database.
(10)Advocate that the city administration explore and advise the historic preservation board
and the building official as to alternatives available for stabilizing and preserving
inadequately maintained and/or unsafe buildings or structures within the city's
designated historic districts or on designated historic sites.
(11)Review all new construction, alterations, modifications and improvements to any
building, structure, improvement, landscape feature, public interior or site individually
designated in accordance with sections 118-591 , 118-592 and 118-593, or located
within an historic district.
(12)To review any and all amendments to this Code affecting historic preservation issues;
specifically division 4 of article ll of chapter 118 entitled "historic preservation board,"
and article X" of chapter 118 entitled "historic preservation," pursuant to section 118-
1 63=
(13) The historic preservation board shall serve as the citv's floodplain manaqement board
for applications concerninq properties within its iurisdiction. and shall have the
authoritv to exercise all powers and perform all duties assiqned to such board pursuant
to section 54-31, et seq.. and-Resolution No. 93-20698. and in accordance with the
procedures set forth therein as such ordinance and resolution mav be amended from
time to time. For the purposes of determinino iurisdiction. the criteria in section 118-
351(a), for a variance shall be utilized.
Sec. 1 18-106. - Quorum and votinq.
The presence of a quorum shall be necessary to conduct a historic preservation board meeting.
A quorum shall consist of four members of the board. A majority vote of the members present
shall be necessary to approve all requests or to decide all issues coming before the board with
the following exceptions:
(1) lssuance of a certificate of appropriateness for demolition, recommendations for historic
designation and reclassification of properties listed as "historic" in the historic properties
database shall require five affirmative votes.
(2) The issuance of a certificate of appropriateness pertaining to revisions to any
application for a property where a certificate of appropriateness for demolition was
previously issued, including an after-the-fact certificate of appropriateness for demolition,
shall require five affirmative votes.
(3) The aporoval of anv variance request shall require five affirmative votes.
(4) The issuance of a certificate of appropriateness pertaining to any application for new
construction, renovation or rehabilitation, except as otheruvise provided in this section,
shall require four affirmative votes.
(5) ln the event of a tie vote on a motion on all requests or issues coming before the board,
the motion shall be deemed denied.
465
DIVISION 5. - BOARD OF ADJUSTMENT
Sec. 1 18-136. - Powers and duties.
(a) The board of adjustment shall have the following powers and duties:
(1) To hear and decide appeals when it is alleged that there is error in any order,
requirement, decision, or determination made by an administrative official in the
enforcement of these land development regulations with the exception of appeals
pursuant to section 118-197 and section 118-262. ln the event of an administrative
appeal to the board of adjustment, the planning director may engage the services of an
attorney for the purpose of representing the administrative officer who made the
decision that is the subject of the appeal.
ln exercising this power, the board of adjustment, may upon appeal, reverse or affirm,
wholly or partly, the order, requirement, decision, or determination, and to that end
shall have all the powers of the officer from whom the appeal is taken. The concurring
vote of five members of the board shall be necessary to reverse any order,
requirement, decision, or determination of any such administrative official or to decide
in favor of the applicant on any matter upon which the board is required to pass under
these land development regulations.
(2) To authorize, upon application, such variance from the terms of these land
development regulations where authorized bv section 118-351(a), pursuant to the
requirements of chapter 118, article Vlll. of the land development requlations. as will
not be contrary to the public interest when, owing to special conditions, a literal
enforcement of a provision of these land development regulations would result in
unnecessary and undue hardship. @ive affirmative votes-
shall be necessary to approve any variance
request.
(b) The board of adjustment shall serve as the city's floodplain management board in reviewinq
applications for properties within its iurisdiction and shall have the authority to exercise all
powers and perform all duties assigned to such board pursuant to section 54-31et seq. and
Resolution No. 93-20698, and in accordance with the procedures set forth therein as such
ordinance and resolution may be amended from time to time. For the purposes of
determininq iurisdiction, the criteria in section 118-351(a). shall be utilized.
SECTION 2. Chapter 118, Article Vl, "Design Review Procedures," of the Land Development
Regulations of the Miami Beach City Code, is hereby amended as follows:
Sec. 1 18-252. - Applicability and exemptions.
(a) Applicabitity.
(1) All building permits for new construction, public interior areas, interior areas that
face a street or sidewalk, demolitions and wrecking, alterations, or additions to
existing buildings, including fences, parking lots, walls and signs, whether new or
change of copy, and exterior surface finishes and materials, shall be subject to
review under the design review procedures except as provided in subsection (b)
of this section. No building permit shall be issued without the written approval by
the design review board or staff as provided for in these regulations.
466
(2)All public improvements upon public rights-of-way and easements. For purposes
hereof, public improvements shall include, but not be limited to, structures,
streetscape projects, street improvements or redesign, modifications to street
lighting or signage, landscaping prolects, medians, and above ground utilities;
however, public improvements shall exclude routine maintenance and utility
repair work.
The review and approval of all new single family home construction, in
accordance with the applicable requirements of Chapter 142, Division 2. of the
Land Development Requlations @
Exemptions. Exemptions to these regulations include all of the following provided no
new construction or additions to existing buildings are required:
(b)
(3)
(1)
(2)
(3)
(4)
All permits for plumbing, heating, air conditioning, elevators, fire alarms and
extinguishing equipment, and all other mechanical and electrical equipment when
such work is entirely within the interior of the building, excluding public interior
areas and interior areas that face a street or sidewalk; however, the planning
director may approve such building permit applications for minor work on the
exterior of buildings.
Any permit necessary for the compliance with a lawful order of the building
official, fire marshal or public works director related to the immediate public
health or safety.
All single-family dwellings are exempt from the design review regulations, with
the exception of exterior surface color samples and finishes, and the review and
approval of all new single family home construction in accordance with the
applicable requirements of Chaoter 142, Division 2. of the Land Development
Requlations
semplianee with seetien 142 105' and all demelitien permits must be signed by
the planning direeter, er designee.
All properties located within designated historic districts and designated historic
sites.
SECTION 3. Chapter 118, Article Vlll, "Procedure for Variances and Administrative Appeals," of
the Land Development Regulations of the Miami Beach City Code, is hereby amended as
follows:
Sec. 1 18-351 . - Determination of jurisdiction.
(g) The applicable board's iurisdiction. pertaininq to a variance request or administrative apoeal.
shall be in accordance with the followinq:
fl_) Board of Adiustment:
a. Variance requests authorized bv the Citv Code that are not within the Land
Development Requlations. except as provided in sections 118-351(aX2) or 118-
351(aX3).
467
Variance requests for aoplications exempted from desiqn review procedures
pursuant to section 1 18-252(bX1). (2) or (3).
Variance requests from the criteria of section 142-1302.
Administrative appeals.
Variance requests authorized bv the Land Development Requlations not
described or listed in section 118-351(aX2) or (3).
(!) Historic Preservation Board:
a. Variance requests of the Land Development Requlations for applications
concerninq properties within the iurisdiction of the historic preservation board,
except those variances listed in section 1 18-351(aX1).
b. Variance requests of the floodplain manaoement reoulations permitted in
chapter 54. division 5 of the citv code, concerninq properties within the
iurisdiction of the historic preservation board.
c. Variance requests filed in coniunction with an application that requires approval
from the historic preservation board. except those variances listed in section
1 18-351(aX1) or (3).
(!) Desiqn Review Board:
a. Variance requests of the Land Development Requlations for applications
concerninq properties within the iurisdiction of the desiqn review board. except
those listed in section 1 18-351(aX1 ).
b. Variance requests of the floodplain management reoulations oermitted in
chapter 54, division 5 of the citv code. concernino properties within the
iurisdiction of the desiqn review board.
c. Variance requests filed in coniunction with an application that requires approval
from the desiqn review board, except those listed in section 1 18-351(aX1) or (2).
CI All variance requests shall be submitted to the city attorney for a determination of whether
the requested variance or administrative appeal is properly before the board of adjustment,
desiqn review board. or historic preservation board. and whether it constitutes a change or
amendment to these land development regulations. The jurisdiction of the each board ef
aAius+men+shall not attach unless and until the board has before it a written opinion from
the city attorney that the subject matter of the request is properly before the board. The
written recommendations of the planning end-zening-director shall be before the board prior
to its consideration of any matter before it. Comments from other departments, including, but
not limited to, the public works department and the planning department design-and-histe+ie
presenra+ien+iveien, if any. shall be incorporated into these recommendations.
Sec. 118-352. - Procedure.
(a) Filing period. Every application for a variance, an afterthe-fact variance or an appeal from
an administrative decision shall be filed within 30 days from the date of the refusal of a
permit by, notice of violation, ruling, decision or determination of, the building official or
other administrative official. lf the applicant or appellant receives notice of the above by
mail, then the applicant or appellant shall have an additional five days in which to apply for
an appeal or after-the-fact variance.
(b) Oath. Any person appearing before the applicable board e+adius+me* on an application for
a variance from the provisions of these land development regulations or an application for
an appeal of an administrative decision shall be administered the{el{ewingran oath by any
b.
c.
d.
e.
468
person duly authorized under the laws of the state to administer oaths in substantially the
same form:
"l,do hereby swear, under oath that any and all testimony to be given by
meme in this proceeding is the truth, the whole truth, and nothing but the truth, so help
God."
Any person giving false testimony before the board e+aOiustmen+ on an application for a
variance from the provisions of these land development regulations or on appeal of an
administrative decision shall be subject to the maximum penalty provided by law.
(c) Effect of withdrawal or denial. Upon the withdrawal or denial of an application for a variance
from the provisions of these land development regulations, no new application may be filed
for such variance within six months following such withdrawal or denial, unless, however,
the decision of the applicable board ef-eA1us+men+taking any such final action is made
without prejudice, or unless the withdrawal of such application is permitted to be made
without prejudice. An application may be withdrawn without prejudice by the applicant as a
matter of right, if such request is signed by the applicant and filed with the planningdepartment ivisien prior to the giving of any notice
required by these land development regulations; otherwise, all such requests for withdrawal
shall be with prejudice, save and except that the board ef adjustment may permit
withdrawals without prejudice at the time the application for such variance is considered by
such board; provided further, that no application may be withdrawn after final action has
been taken.
(d) Recording. Within a reasonable time after a request has been properly considered by the
board e+aeius+men+, the applicant shall record the board's order in the public records of the
county. No building permit, certificate of occupancy, certificate of completion or licensing
permit shall be issued until the recordation requirements has been complied with. Prior to
the recordation, the city attorney shall approve the instrument.(e) Requests for variances before the desiqn review board or historic preservation board shall
follow the procedures for consideration of applications set forth in the land development
regulations for those boards.
Sec. 1 18-353. - Variance applications.
(a) An application for a variance for the following items is prohibited: Floor area ratio, required
parking (except as provided for in these land development regulations), a request pertaining
to the reduction of an impact fee, lot area when determining floor area ratios, maximum
number of stories, or any maximum building height variance greater than three feet.
(b) A variance for hotels of more than 20 percent of the total amount of required parking is
prohibited; should the board grant a variance pursuant to subsection 130-32(25), the
parking impact fee program shall not be required.
(c) Notwithstanding the terms of subsection 118-353(a) hereof, for purposes of effectuating a
lot split for a site (1) within an historic district, and (2) upon which there are two or more
contributing buildings, variances for the limited purpose of achieving compliance with these
land development regulation with respect to existing floor area ratio shall be permitted. A lot
split contemplated in this subsection shall not be approved unless and until:
(1) The resulting lots each contain a contributing building;
(2)Eachcontributingbuildinghaspreviouslyreceived
certificates of appropriateness approval from the
@ historic preservation boardras-applieab$ for the proposed
comprehensive restoration of the buildings and related work;
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(3) The applicant provides a payment and performance bond, in form approved by the city
attorney's office, for the proposed comprehensive restoration and all other work
contemplated in said board approvals; and
(4) A binding covenant, enforceable against all successors in interest which shall run with
the land, shall be recorded in the public records declaring and confirming that the floor
area ratio of each of the resulting lots shall never exceed the lesser of (A) the floor area
ratio as of the date of approval of the lot split, or (B) the floor area ratio permitted under
the Code, as amended from time to time, as of the issuance date of a full building
permit for any new construction on the lot.
(d) ln order to authorize any variance from the terms of these land development regulations
and sections 6-4 and 6-a1(a) and (b), the applicable board +aAjus+men+ shall find that:
(1) Special conditions and circumstances exist which are peculiar to the land, structure, or
building involved and which are not applicable to other lands, structures, or buildings in
the same zoning district;
(2) The special conditions and circumstances do not result from the action of the applicant;
(3) Granting the variance requested will not confer on the applicant any special privilege
that is denied by these land development regulations to other lands, buildings, or
structures in the same zoning district;
(4) Literal interpretation of the provisions of these land development regulations would
deprive the applicant of rights commonly enjoyed by other properties in the same
zoning district under the terms of these land development regulations and would work
unnecessary and undue hardship on the applicant;
(5) The variance granted is the minimum variance that will make possible the reasonable
use of the land, building or structure;
(6) The granting of the variance will be in harmony with the general intent and purpose of
these land development regulations and that such variance will not be injurious to the
area involved or othenruise detrimental to the public welfare; and
(7) The granting of this request is consistent with the comprehensive plan and does not
reduce the levels of service as set forth in the plan. The planning and zoning director
may require applicants to submit documentation to support this requirement prior to the
scheduling of a public hearing or anytime prior to the board e+eOius+me* voting on the
applicant's request.
Sec. 1 18-354. - Variance conditions and safeguards.
ln granting a variance, the applicable_board e+adlustme* may prescribe appropriate conditions
and safeguards. Violation of such conditions and safeguards, when made a part of the terms
under which the variance is granted, shall be deemed a violation of these land development
regulations.
Sec.118-355.-Variancetimelimits;decisions;s.
(a) The applicable board e+-adiustme* may prescribe a reasonable time limit within which the
action for which the variance is required shall begin or be completed or both. The applicant
shall have up to 18 months, or such lesser time as may be specified by the board, from the
date of the board meeting at which a variance was granted to obtain a full building permit.
The foregoing 18-month time period, or such lesser time as may be specified by the board,
includes the time period during which an appeal of the decision of the board e+edius+me*
may be filed. lf the applicantfails to obtain a full building permitwithin 18 months, or such
lesser time as is specified, of the board meeting date at which a variance was granted
and/or construction does not commence and proceed in accordance with such permit and
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the requirements of the applicable Florida Building Code, the variance shall be deemed null
and void. Extensions for good cause, not to exceed a total of one year for all extensions,
may be granted by the applicable board e+-aAiustment, provided the applicant submits a
request in writing to the planning and zoning director no later than 90 calendar days after
the expiration of the original variance(s) showing good cause for such an extension. At the
discretion of the planning director, an applicant may have up to 30 days (not to extend
beyond 30 months from the date of original approval) to complete the building permit review
process and obtain a full building permit, provided that within the time provided by the board
to obtain a full building permit a valid full building permit application and plans have been
filed with the building department, a building permit process number has been issued and
the planning department has reviewed the plans and provided initial comments.
Notwithstanding the foregoing, in the event the decision of the board +-aaius+me*, with
respect to a the original variance request, is timely appealed, the applicant shall have
eighteen (18) months, or such lesser time as may be specified by the board, from the date
of final resolution of all administrative and/or court proceedings to obtain a full building
permit. This tolling provision shall only be applicable to the original approval of the board
and shall not apply to any subsequent requests for revisions or requests for extensions of
time.
(b) Under no circumstances shall the board e+aAjus+me* grant a variance to permit a use not
generally permitted in the zoning district involved or any use expressly or by implication
prohibited by the terms of these land development regulations. No nonconforming use of
neighboring lands, structures, or buildings in other zoning districts shall be considered
grounds for the authorization of a variance.
(c) The board shall fix a reasonable time for the hearing of the variance request after a
complete application as determined by the planning anC-zening director, give public notice
thereof as well as due notice to the parties in interest, and decide same within a reasonable
time. The decision of the board shall be in writing and shall be mailed promptly to the
applicant.
(d) A building permit shall not be issued until the applicant records the final order against the
property in the public records of the county.
(e) The beard shall determine; en a yearly basis, the parking impaet fee based upen data
ing
direeter shall eeerdinate the submissien ef data and previde the beard with a
previeing+a*in$
Sec. 1 18-356. - Revocation or modification of variance.
(a) The applicable board el-edjus+m€nt may revoke or modify a variance pursuant to the
following procedures:
( 1 ) The planning director shall notify the applicant by certified mail of the failure to comply
with the conditions of the variance.
(2) lf, afterexpiration of a 1S-daycure period (commencing on the date of the notice), the
applicant fails to comply with the conditions, or the applicant has exhibited repeated or
intermittent noncompliance with the conditions prior to the cure period and the planning
director is concerned about further repeated or intermittent noncompliance, the
planning director shall advise the board at the next meeting and the board may
consider setting a public hearing for the purpose of examining the noncompliance
issues.
(3) lf the board elects to set a public hearing, the planning director shall place the matter
on the board's agenda in a timely manner and all notice requirements imposed for
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(b)
(c)
variance applications as set forth in section 118-134 shall be applicable, with the
addition of notice to the applicant.
(4) The applicable board e+edlus+men+ shall hold a public hearing to consider the issue of
noncompliance and the possible revocation or modification of the variance, and, based
on substantial competent evidence, the board may revoke the variance, modify the
conditions thereof, or impose additional or supplemental conditions.
ln determining whether substantial competent evidence exist to support revocation,
modification or the imposition of additional or supplemental conditions to the variance,
intermittent noncompliance with the conditions, as well as the frequency, degree and
adverse impact of such intermittent noncompliance, may be considered by the board.
ln the event the board takes any of the enforcement actions authorized in this subsection,
the applicant shall reimburse the planning department ien
for all monies expended to satisfy notice requirements and to copy, prepare or
distribute materials in anticipation of the public hearing. The applicant shall not be permitted
to submit a new application (for related or unrelated matters), nor shall an application be
accepted affecting the subject property (for related or unrelated matters), for consideration
by the board of adjustment, planning board, design review board, or historic preservation
board, until repayment in full of all monies due and payable pursuant to this subsection (c).
ln addition to all other enforcement actions available to the board, based upon a board
finding that the applicant has failed to comply with the conditions of the variance, the board
may recommend that the code compliance director (or his/her successor in interest with
respect to the issuance of occupational licenses and certificates of use), in his/her
discretion, revoke or suspend the certificate of use for the subject property and/or the
applicant's occupational license applicable to the business conducted at the subject
property.
Sec. 1 18-358. - Appeal of variance decision.
The decision of the board of adiustment. historic preservation board, or desiqn review board.
solelv. with respect to variances shall be final. There shall be no further review of the variance
except bv resort to a court of competent iurisdiction bv petition for writ of certiorari.
SECTION 4. 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 5. 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 renumbered or relettered to accomplish
such intention; and that the word "ordinance" may be changed to "section" or other appropriate
word.
SECTION 6. SEVERABILITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
(d)
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SECTION 7. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this day of
ATTEST:
Philip Levine, Mayor
Rafael E. Granado, City Clerk
First Reading: November 19,2014
Second Reading: Decembef 17,?014
Verified by:
Thomas R.
Planning Director
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2014.
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