98-22720 RESO
REVISED 4/10/98
RESOLUTION NO. 98- 22720
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AMENDING RESOLUTION NO. 98-22708 BY AFFIRMING A
PROPOSED POLICY DETERMINATION OF THE CITY OF MIAMI BEACH PLANNING
DEPARTMENT WITH REGARD TO THE PRESUMPTION OF EQUITABLE ESTOPPEL
FOR ALL NONCONFORMING PROJECTS WHICH HAVE OBTAINED DESIGN
REVIEW APPROVAL, VARIANCE APPROVAL, OR AN ACTIVE FULL OR PARTIAL
BUILDING PERMIT, INCLUDING A DEMOLITION PERMIT, PRIOR TO THE
PLANNING BOARD AFFIRMATIVELY RECOMMENDING, OR THE CITY
COMMISSION ADOPTING, AN AMENDMENT TO THE ZONING ORDINANCE ON OR
BEFORE APRIL 1, 1998, PROVIDED THAT THE APPROVALS OR PERMITS REMAIN
VALID.
WHEREAS, the City of Miami Beach Planning Department has proposed a policy to amend Resolution
No. 98- 22708 to assist in determining whether the City of Miami Beach ("City") should be equitably
estopped from enforcing certain Zoning Ordinance amendments against certain development projects within the
City; and
WHEREAS, the Mayor and City Commission of the City of Miami Beach agree that the proposed policy
of the Planning Department, as described above, would fairly and equitably address concerns with regard to how
nonconforming projects are to be addressed.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA that the following proposed policy of the City of Miami Beach
Planning Department is hereby affirmed:
Any project which has, on or before April 1, 1998, obtained design review approval, variance
approval, or an active full or partial building permit, including a demolition permit, prior to being
rendered nonconforming as of the earlier of the Planning Board affirmatively recommending, or
the City Commission adopting, an amendment to the Zoning Ordinance, shall be presumed to have
achieved equitable estoppel in order to proceed with such project, and the City of Miami Beach
shall be estopped from enforcing Ordinance Nos. 97-3097, 98-3107, and 98-3108, and any other
applicable Zoning Ordinance amendments adopted after the date the project obtained such
approval or permit, against any such projects; provided, however, said presumption of equitable
estoppel shall continue only for the period that the referenced approvals or permits remain valid.
Reference to obtaining design review approval, or variance approval shall mean the meeting date
at which the respective Board approved said application or approved said application with
conditions, and reference to building permit shall mean the date of issuance of same.
PASSED and ADOPTED this 15th day of April, 1998.
ATTEST:
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CITY CLERK
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRiVE MIAMI BEACH, FLORIDA 33139
http:\\ci.miami-beach.fl.us
COMMISSION MEMORANDUM NO. 2J to- ~ 8"
TO:
Mayor Neisen O. Kasdin and
Members of the City Commission
DATE: April 9, 1998
FROM:
Sergio Rodriguez A}Q", \\
City Manager / ~. .~II\
SUBJECT:
EQUITABLE ESTOPPEL AND REVIEW PROCESS FOR NONCONFORMING
DEVELOPMENT PROJECfS
RECOMMENDATION:
The Administration recommends that the City Commission eonsider adoption of:
A. Proposed Resolution for Grantine Equitable Estoppel
A resolution affirming a proposed policy determination of the Planning
Department with regard to the presumption of equitable estoppel. The
reeommended poliey of the Planning Department would presume equitable
estoppel has been achieved for any projeet which has obtained a design review
approval, variance approval, or a validly issued and active full or partial building
permit (including demolition), prior to the adoption of any zo~ing amendment that
renders the project nonconforming including, 97-3097, 98-3107 and 98-3108.
(Note: Referenee to obtaining design review approval, or variance approval shall
mean the meeting date at which the respective Board approved said applieation or
approved said applicant with conditions, and referenee to building permit shall
mean the date of issuance of same.)
B. Proposed Board Review for non-conformine Proiects
An ordinance amending a ehapter of the City Code entitled "Agencies, Boards, and
Committees" by creating a new section establishing the Nonconforming Project
Assessment Board (NP AB); and
AGENDA ITEM I
DATE 4--9 -90
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C. Proposed Zoning Ordinance Amendment Clarifying Equitable Estoooel
A referral to the Planning Board of an amendment to Zoning Ordinance No. 89-
2665 to revise the zoning-in-progress moratoria provision to comport with the
reeommended policy. The recommended policy of the Planning Department
would presume equitable estoppel has been achieved for any projeet which has
obtained a design review approval, variance approval, or a validly issued and
active full or partial building permit (including demolition) prior to the adoption
of a zoning amendment that renders the project nonconforming. (Note: Reference
to obtaining design review approval, or variance approval shall mean the meeting
date at whieh the respective Board approved said applieation or approved said
applicant with conditions, and reference to building permit shall mean the date of
issuanee of same.)
BACKGROUND:
On February 18, 1998, the Mayor and Commission issued a request to the City Attorney to
explore legal methods of addressing projects for which applications for development
approval were filed prior to the effective date of the City's recent amendments to the
Zoning Ordinance; and within 30 days, report to the Commission.
On Mareh 18, 1998, the City Attorney provided a response to the Commission's direetive of
February 18, 1998 (see Appendix A; attaehments excluded). The City Attorney's report
concluded that the strict language of the Ordinance by its express terms does not create a
vested property right and only authorizes the processing of an application, notwithstanding
the moratorium.
On Aprill, 1998, the Administration and City Attorney reported to the City. Commission that it
had developed certain benchmarks for establishing a presumption of equitable estoppel, and
proposed review eriteria t~ be used to analyze projects not aehieving the speeified benchmarks.
The Administration's basis for making sueh a presumption of equitable estoppel was based on,
among other things, the Miami-Dade County Code, Seetion 2-114.2( d) 1, which stipulates that the
applicant has:
1. Relied in good faith upon some act or omission of Miami-Dade County; and
2. Has made such a substantial change in position or incurred such extensive obligations
and expenses to his/her detriment that it would be highly inequitable to deny relief.
Twelve different benchmarks were identified for every nonconforming development project
currently pending for whieh a Final Certificate of Oceupaney had not been issued but which was
conforming at the time of application.
After considerable discussion on April 1, 1998, the City Commission affirmed the
Administration's policy determination that all nonconforming projeets which obtained full or
partial building permits, including demolition permits, and which commenced construction on or
before March 18, 1998~ shall be presumed to have achieved equitable estoppel. As such, these
nonconforming projects will be deemed to have satisfied the criteria set forth above and the City
*At the April 9, 1998 Special Commission Meeting this date was
changed to April 1, 1998.
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226
of Miami Beach shall be estopped from enforcing Zoning Ordinance Nos. 97-3097 (height), 98-
3107 (FAR) and 98-3108 (parking), and any other applicable amendments to the Zoning
Ordinance. Therefore, the aforedescribed projects will not be subjeet to an administrative review
process to determine whether or not equitable estoppel has been established.
Based on Resolution of the Commission on April I, 1998, projects which have obtained a
building permit and shall be presumed to have achieved equitable estoppel, are listed in Appendix
B.
Furthermore, the Commission set this speeial City Commission meeting to further review the
standard established with respect to the presumption of equitable estoppel and to diseuss related
Issues.
ANALYSIS:
A. Proposed Resolution for Grantine: Equitable Estoppel
Sinee the April 1, 1998 City Commission meeting, the Administration and City Attorney have
further reviewed the standards for determining under what circumstances a presumption of
equitable estoppel shall be attained, and have eoncluded that the standard established by the City
Commission on April 1, 1998, should be further amended.
The proposed resolution (whieh amends the resolution adopted on April 1, 1998) would deem all
noneonforming projeets that obtained design review approval prior to (i) the Planning Board's
affIrmative reeommendation regarding Zoning Ordinance Nos. 98-3107 and 98-3108, (ii) the City
Commission adopting Zoning Ordinanee amendment No. 97-3097, or (iii) the Planning Board
affIrmatively reeommending or the City Commission adopting any other applicable zoning
ordinance amendments to have achieved equitable estoppel. (Note: Reference to obtaining
design review approval, o~ variance approval shall mean the meeting date at whieh the respeetive
Board approved said application or approved said applicant with conditions, and reference to
building permit shall mean the date of issuance of same.)
Projects presumed to have achieved equitable estoppel, based on this proposed amendment are
listed in Appendix C.
Should the City Commission elect not to endorse the proposed resolution granting this further
exemption, the projeets listed in Appendix C will be required to make application to a newly
created Noneonforming Projeet Assessment Board (NP AB) for a determination as to whether or
not equitable estoppel has been achieved. Nonconforming projects approved by the Design
Review Board subsequent to December 16, 1997 and prior to March 18, 1998 are listed in
Appendix D and must appear before the NP AB for a determination as whether or not equitable
estoppel has been achieved.
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227
B. Proposed Board Review for Nonconforming Proiects
The proposed amendment to the City Code establishes a proeess for determining equitable
estoppel for projects which do not have an automatic presumption of same.
The proposed amendment establishes a Noneonforming Projects Assessment Board (NP AB) that
will be authorized to make a determination regarding whether the doctrine of equitable estoppel
applies to eertain nonconforming development projects within the City of Miami Beach. The
following is a brief description of the purpose, powers, criteria, composition and procedures of
said board.
Purpose: The NP AB will hold a hearing and make a determination as to whether
equitable estoppel has been achieved so that a project may continue or proceed.
Powers and Duties: The NP AB is vested with the power and authority to consider
evidence relating to whether equitable estoppel has been achieved and to render a deeision
based on the applieants ability to establish that the applieant:
1. Relied in good faith upon some aet of omission of the City of Miami Beaeh
occurring prior to March 18, 1998; and
2. Has made sueh a substantial change in position or incurred such extensive obligations
and expenses to the Applicants detriment that would be highly inequitable to deny
relief.
Composition: City Manager or designee, City Finance Director, Planning and Zoning
Director, Building Official, and Public Works Director.
Procedures: Applieations will be required for consideration by the Board. Notice shall
be published and ,the property will be posted. An applieation fee of $250.00 will be
assessed. The Board will hold publie hearings on the Applieation and make its
determination regarding equitable estoppel.
Appeals: Appeal of a Board decision will be to the City Commission.
C. Proposed Zonin!!: Ordinance Amendment Clarifvin!!: Equitable Estoppel
The proposed amendment to the Zoning Ordinance will serve to clearly define the point at which
a projeet is presumed to have achieved equitable estoppel with respect to prospective applicants.
The amendment states that any project which has obtained either a design review approval, a
variance approval or which has a validly issued and aetive full or partial building permit prior
to an amendment to the Zoning Ordinance rendering said project nonconforming shall be
presumed to have achieved equitable estoppel. (Note: Reference to obtaining design review
approval, or variance approval shall mean the meeting date at which the respeetive Board
approved said application or approved said applicant with conditions, and reference to building
permit shall mean the date of issuance of same.)
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Generally, projects must obtain the aforementioned approvals prior to favorable recommendation
by the Planning Board of an amendment to the Zoning Ordinanee, or, in the absence of said
favorable reeommendation, the adoption of the amendment by the City Commission rendering
said projects noneonforming.
Furthermore, any project that does not meet the above requirements to qualify for a presumption
of equitable estoppel may seek a determination whether or not equitable estoppel has been
achieved by submitting an application to the City's NPAB.
CONCLUSION:
In summary, the Administration reeommends that the City Commission adopt and refer the items
as deseribed, herein. The Administration has concluded that these actions clarify the treatment of
pending projects and establish clear procedures for the development community and the eitizens of
Mia~eh with regard to noneonforming projects.
S~jG
Attaehments
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