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Ord. No. 12-09-2004ORDINANCE NO. 12-09-2004 AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING THE LAND DEVELOPMENT CODE SECTION 20- 6.2(A) ENTITLED "APPEALS: ERPB DECISIONS; TIME; STANDING TO APPEAL" IN ORDER TO MODIFY THE PROVISION REGULATING THE TIME PERIOD AS TO WHEN AN APPEAL OF AN ENVIRONMENTAL REVIEW AND PRESERVATION BOARD (ERPB) DECISION CAN BE FILED; AND CLARIFYING WHO CAN FILE AN APPEAL OF A DECISION OF THE ERPB; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Land Development Code (LDC) Section 20- 6.2(A) governing an appeal of a decision of the Environmental Review and Preservation Board (ERPB) provides that an applicant, the City administration and any interested persons may appeal a decision of the ERPB to the City Commission which may reverse, affirm, or modify the appealed decision; and WHEREAS, an appeal to an ERPB decision can be made at any time after the ERPB decision is made but before a building permit is issued; and WHEREAS, the Planning and Zoning Department and the City Attorney have expressed concerns on several occasions that there is no limitation on when an appeal of an ERPB decision can be filed, which appeal stays the proceedings of a project and also stops the review of any building permit which has been applied for until the City Commission can hold a hearing and make a decision on the appeal; and WHEREAS, allowing any "interested citizens" to appeal a decision of the ERPB is not fair to property owners in that "any" person regardless of standing or their relationship to the City of South Miami may appeal a decision several months after the ERPB decision is made, which appeal can put on -going planning efforts and permitting in jeopardy; and WHEREAS, the Planning and Zoning Department has prepared an amendment to Section 20- 6.2(A) of the Land Development Code which will provide that an appeal of an ERPB decision or recommendation be filed within thirty (30) days of the ERPB final decision or before a building permit is issued, whichever comes first; and WHEREAS, the Planning and Zoning Department has also prepared a technical amendment to the same section of the Land Development Code to clarify that "interested citizens" who can appeal a decision by the ERPB are limited to a South Miami resident or property owner and any citizen living in an abutting municipality and within 500 feet of the property under review; and WHEREAS, the Planning Board at its May 26, 2009 meeting, after public hearing, adopted a motion by a vote of 6 ayes 0 nays recommending that the proposed amendments to the Land Development Code be approved; and Ord. No. 12 -09 -2004 WHEREAS, the City Commission desires to accept the recommendation of the Planning Board and enact the aforesaid amendment. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. That Section 20- 6.2(A) entitled "Appeals" of the Land Development Code is hereby amended as follows: Article VI Administration and Enforcement Section 20 -6.2 Appeals. (A) ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations of the environmental review and preservation board (ERPB) shall be posted on the City Hall bulletin board immediately following the ERPB meeting. An applicant may obtain apply for a building permit after noon of the day after the ERPB meeting, at which the application was given final apprmxe approval, if all other requirements for the permit have been met. An appeal of an ERPB final decision or recommendation may be filed within thirty (30) days of the ERPB final decision or before a building permit is issued, whichever comes first, time before a bidilding mead by filing same with the city clerk upon a form prescribed therefore. Appeals may be taken filed by the applicant, -' ° a property owner, business owner, or resident of the City, oF the city administration, or any interested citizens living in an abutting municipality and within 500 feet of the property under review. (B) Stay of Proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the city commission, after notice of appeal has been filed with him, that because of the facts stated in the certificate a stay would, in the officer's opinion, cause imminent peril to life or property or that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of the Code. (C) Restraining Orders. If certification occurs in accordance with subsection (B) above, proceedings may not be stayed except by a restraining order, which may be granted by the city commission or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown. (D) Appeal Hearing. The city commission shall hear and enter a decision on all appeals within sixty (60) days of the date of filing said appeal, and shall provide due notice of the appeal to the parties. (E) Commission Action. The city commission may reverse, affirm or modify any order, requirement, decision or determination appealed from and shall make any order, requirement, decision or determination that, in the city commission's opinion, ought to be made in the circumstances. Ord, No, 12 -09 =2004 (F) Modification Allowed When practical difficulties or unnecessary hardships would result from carrying out the strict letter of a Code provision, the city commission may, in passing upon appeals, vary or modify any regulation or provision of the Code relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the Code is observed, public safety and welfare secured, and substantial justice done. (G) Prior Denials. The city commission shall not be required to hear an appeal or application previously denied if it finds that there has been no substantial change in conditions or circumstances bearing on the appeal or application. Section 2 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 3 If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the remaining portions of this ordinance. Section 4 This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTED this 21 st ATTEST: CITY CLERK 1St Reading— 6/16/09 2 °d Reading— 7/21/09 READ AND APPROVED AS TO FORM: day of JulY , 2009 APPROVED: COMMISSION VOTE: 5 -0 Mayor Feliu: Yea Vice Mayor Beasley: Yea Commissioner Palmer: Yea Commissioner Newman: Yea Commissioner Sellars: Yea (New wording in bold and underlined; wording removed in s€r7�ku "ougla) X: \Comm Items \2009 \7- 21- 09 \LDC Amend ERPB Appeals Revised Ord.doc South Miami AIFAmeticaGity CITY OF SOUTH MIAMI 1111101 OFFICE OF THE CITY MANAGER INTER - OFFICE MEMORANDUM 2001 To: The Honorable Mayor Feliu and Members of the City Commission Via: Ajibola Balogun, City Manager From: Thomas J. Vageline, Director Planning and Zoning Department Date: July 21, 2009 ITEM No. Subject: AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING THE LAND DEVELOPMENT CODE SECTION 20- 6.2(A) ENTITLED "APPEALS: ERPB DECISIONS; TIME; STANDING TO APPEAL" IN ORDER TO MODIFY THE PROVISION REGULATING THE TIME PERIOD AS TO WHEN AN APPEAL OF AN ENVIRONMENTAL REVIEW AND PRESERVATION BOARD (ERPB) DECISION CAN BE FILED: AND CLARIFYING WHO CAN FILE AN APPEAL OF A DECISION OF THE ERPB; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. SUMMARY During its current review of the entire Land Development Code the Planning and Zoning Department staff has determined that certain provisions need immediate consideration due to legal problems, technical wording errors, or to respond to specific issues which the Department is facing and can not resolve. The Land Development Code provides regulations governing an appeal of a decision of the Environmental Review and Preservation Board (ERPB). LDC Section 20- 6.2(A) allows an applicant, the City administration and any interested person to appeal a decision of the ERPB to the City Commission which may reverse, affirm, or modify the appealed decision. An appeal to an ERPB decision can be made at any time after the ERPB decision is made but before a building permit is issued. CURRENT LDC REGULATIONS The Planning and Zoning Department and the City Attorney have expressed concerns on several occasions that there is no limitation on when an appeal of an ERPB decision can be filed. An appeal stays the proceedings of a project and would also stop the review of any building permit which has been applied for until the City Commission can hold a hearing and make a decision on the appeal. This would apply to any construction project whether it is simple home renovation, window replacement, painting, signs, additions or 2 new construction. A property owner has no assurance that their project will be allowed by the City until a permit is issued. This could result in a severe economic hardship on a homeowner or commercial property owner if there is a successful appeal after considerable funds have been invested in plan preparation. A property owner should be able to rely on the official approval of the ERPB within a reasonable number of days. A secondary concern is that the current regulations allow for an appeal to be filed by "interested citizens ". There is no definition of who interested citizens are, where they are located or whether or not they have standing to file such an appeal. This generic wording could result in legal problems and is not fair to property owners to allow an appeal to be made by "any" person regardless of their relationship to the City of South Miami. It would be appropriate to define "interested citizens" and to limit the filing of an appeal to residents or property owners in the City. PROPOSED AMENDMENTS (See proposed ordinance) It is proposed in the attached draft ordinance that an appeal of an ERPB decision or recommendation be filed within thirty (30) days of the ERPB final decision or before a building permit is issued, whichever comes first. This limitation will protect a homeowner or property owner from appeals which are made several months after the ERPB decision is made, which appeal can put on -going planning efforts and permitting in jeopardy. In order to clarify who can appeal a decision it is proposed that the category "interested citizens" be defined as any South Miami resident or property owner and any citizen living in an abutting municipality and within 500 feet of the property under review. PLANNING BOARD ACTION The Planning Board at its May 26, 2009 meeting conducted a public hearing on the proposed amendments and adopted a motion by a vote of 6 ayes 0 nays recommending approval. RECOMMENDATION (1) The City Commission at its June 16, 2009 meeting discussed the subject ordinance and then made an amendment to add the word "business owners" to the list of persons who could appeal an ERPB decision. This is included in the attached second reading ordinance. (2) At the same meeting the Commission also expressed a concern that there may not be enough time for an appellant to file an appeal if the minutes of the Board are not available for study and review. This would be especially important if the approved development is the construction of a new commercial or residential building. It would be appropriate if there was a waiting time period before a permit could be applied for. The City Commission may wish to add the following wording (in bold, underlined, italics) to the amendment paragraph: 3 Section 20 -6.2 Appeals. (A) ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations of the environmental review and preservation board (ERPB) shall be posted on the City Hall bulletin board immediately following the ERPB meeting. An applicant may ®ktain apply for a building permit after noon of the day after the ERPB meeting, or in the case of new huildin;; construction at least fifteen (IS) calendar days after the ERPB ri eetin>? at which the application was given final approval, if all other requirements for the permit have been met. An appeal of an ERPB final decision or recommendation may be filed within thirty (30) calendar days of the ERPB final decision or before a building permit is issued whichever comes first, by filing same with the city clerk upon a form prescribed therefore. Appeals may be taken filed by the applicant, ' a property owner, business owner or resident of the City, or the city administration, or any interested citizens living in an abutting municipality and within 500 feet of the property under review. It is recommended that the attached ordinance, as amended on first reading and with the additional wording set forth above, be adopted on second reading. Attachments: Draft ordinance Planning Board Meeting Excerpt 5 -26 -09 Planning Dept. Staff report 5 -26 -09 Public Notices TJV /SAY X: \Comm Items\2009 \7- 21 -09TDC Amend ERPB Appeals Revised CM Report.doc CITY OF SOUTH MIAMI PLANNING BOARD Regular Meeting Action Summary Minutes Tuesday, May 26, 2009 City Commission Chambers 7:30 P.M. I. Call to Order and the Pledge of Allegiance to the Flag Action: The meeting was called to order at 7:35 P.M. The Pledge of Allegiance was recited in unison. II. Roll Call Action: Chairman Morton requested a roll call Board members present constituting a quorum: Mr. Morton, Mr. Cruz, Ms. Yates, Mr. Whitman, Mr. Comendeiro and Mr. Farfan. Absent: Ms. Young. City staff present: Mr. Thomas J. Vageline (Planning and Zoning Director), Sanford A. Youkilis (Planning Consultant), Lourdes Cabrera - Hernandez (Principal Planner), Alerik Barrios (Assistant). Absent: Ms. Maria Stout- Tate (Administrative Assistant). III. Planning Board Applications/Public Hearings PB -09 -011 Applicant: City of South Miami AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING THE LAND DEVELOPMENT CODE SECTION 20- 6.2(A) ENTITLED "APPEALS: ERPB DECISIONS; TIME; STANDING TO APPEAL" IN ORDER TO MODIFY THE PROVISION REGULATING THE TIME PERIOD AS TO WHEN AN APPEAL OF AN ENVIRONMENTAL REVIEW AND PRESERVATION BOARD (ERPB) DECISION CAN BE FILED; AND CLARIFYING WHO CAN FILE AN APPEAL OF A DECISION OF THE ERPB; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. Action: Mr. Farfan read the item into the record. Mr. Youkilis advised the Board that while reviewing the entire Land Development Code the Planning and Zoning Department staff has determined that certain provisions need immediate consideration due to legal problems, technical wording errors, or to respond to specific issues which the Department is facing and can not resolve. The Land Development Code provides regulations governing an appeal of a decision of the Environmental Review and Preservation Planning Board Meeting May 26, 2009 Page 2 of 3 Board (ERPB). LDC Section 20- 6.2(A) allows an applicant, the City administration and any person to appeal -a decision of the ERPB to the City Commission which may reverse, affirm, or modify the appealed decision. An appeal to an ERPB decision can be made at any time after the ERPB decision is made but before a building permit is issued. He commented that the Planning and Zoning Department and the City Attorney have expressed concerns on several occasions that there is no limitation on when an appeal of an ERPB decision can be filed. An appeal stays the proceedings of a project and would also stop the review of any building permit which has been applied for until the City Commission can hold a hearing and make a decision on the appeal. This would apply to any construction project whether its simple home renovation, window replacement, painting, signs, additions or new construction. A property owner has no assurance that their project will be allowed by the City until a permit is issued. This could result in a severe economic hardship on a homeowner or commercial property owner if there is a successful appeal after considerable funds have been invested in plan preparation. A property owner should be able to rely on the official approval of the ERPB within a reasonable number of days. Mr. Youkilis informed the Board that another concern is that the current regulations allow for an appeal to be filed by "interested citizens ". There is no definition of who interested citizens are, where they are located or whether or not they have standing to file such an appeal. This generic wording could result in legal problems and is not fair to property owners to allow an appeal to be made by "any" person regardless of their relationship to the City of South Miami. It would be appropriate to limit the filing of an appeal to residents or property owners in the City. Mr. Youkilis recommended approval of the proposed amendments to Section 20 -6.2 (A). Mr. Morton questioned if the ERPB is making a recommendation to the City Commission or is the Board in the permit process to approve and disapprove and then it goes on with no action on part of the City Commission. Mr. Youkilis responded that the ERPB makes a decision generally a final decision unless there is an appeal. Mr. Morton commented that basically the ERPB would make a recommendation on the application. Mr. Whitman questioned how long it takes for the meeting minutes to be posted. Mr. Youkilis commented that meeting minutes are done within seven to ten work days. Mr. Whitman questioned if there had ever been a case that the meeting minutes were not available within thirty days. Mr. Youkilis responded that there has never been a delay and the Board members expect to see the meeting minutes at the next meeting. Mr. Morton questioned if there is a time limit for public availability for the meeting minutes. Mr. Youkilis replied that there is no regulation on the date the meeting minutes are due. Mr. Whitman commented that the process of appeals needs to be fair to any applicant. Mr. Youkilis commented that an appeal could be filed 30 days after an ERPB decision or before a building permit is issued. Ms. Yates commented that she was concerned that if someone has a complaint and the applicant is going to submit for a permit there is no thirty day wait. She recommended changing the word "or" to "which ever one comes last'. Planning Board Meeting May 26, 2009 Page 3 of 3 Mr. Youkilis commented that most of the applications to ERPB include minor renovation and some new construction. Mr. Comendeiro commented that the party that is attached to the issue would be at the meeting or be at the meeting. He commented that the concern is not with the minutes, but the person who is willing to appeal does not sit around to see if the minutes are published. Mr. Morton questioned if the Planning Board could give the ERPB a suggestion of placing a timeline on the meeting minutes. Mr. Cruz was concerned that certain areas of the city are divided into unincorporated Miami - Dade and South Miami. He recommended that a certain distance be applied to both sides. Mr. Youkilis commented there are certain issues that are of interest to the property owners that may want to appeal a decision even if they are a mile away. Mr. Whitman commented that the way it is written "any interested citizen" is perfect the way it stands, but the new form it is written in, is not legal under legal protection grounds. Mr. Comendeiro suggested the wording be changed to "interested citizen within five hundred feet (500ft), a property owner or a resident of the city ". Chairman opened the public hearing. No one came forward. Chairman closed the public hearing. Motion: Mr. Comendairo moved and Ms. Yates seconded the amendment with the following changes stated below: ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations of the environmental review and preservation board (ERPB) shall be posted on the City Hall bulletin board immediately following the ERPB meeting. An applicant may ekeiia apply for a building permit after noon of the day after the ERPB meeting, at which the application was given final appro*ed approval, if all other requirements for the permit have been met. An appeal of an ERPB final decision or recommendation may be filed within thirty (30) days of the ERPB final decision or before a building permit is issued, whichever comes first, at any time r - w,, ra; m -•• ' by filing same with the city clerk upon a form prescribed therefore. Appeals may be taken filed by the applicant, :,.,,.v,._ a Property owner or resident of the City, of the city administration, or any interested citizens living in an abutting municipality and within 500 feet of the property under review. Vote: 6 Ayes 0 Nay X: \Comm Items\2009 \7 -21 -09 \Minutes excerpt 09 -01 Ldoc To: Honorable Chair and Date: May 26, 2 Planning Board Members From: Thomas J. Vageline, Director Uif Re: LDC Amendment —ERPB Appeal Planning and Zoning Departme tr, Time Sec. 20- 6.2(A) PB -09 -011 Anplicant: City of South Miami AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING THE LAND DEVELOPMENT CODE SECTION 20- 6.2(A) ENTITLED "APPEALS: ERPB DECISIONS; TIME; STANDING TO APPEAL" IN ORDER TO MODIFY THE PROVISION REGULATING THE TIME PERIOD AS TO WHEN AN APPEAL OF AN ENVIRONMENTAL REVIEW AND PRESERVATION BOARD (ERPB) DECISION CAN BE FILED: AND CLARIFYING WHO CAN FILE AN APPEAL OF A DECISION OF THE ERPB; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND During its current review of the entire Land Development Code the Planning and Zoning Department staff has determined that certain provisions need immediate consideration due to legal problems, technical wording errors, or to respond to specific issues which the Department is facing and can not resolve. The Land Development Code provides regulations governing an appeal of a decision of the Environmental Review and Preservation Board (ERPB). LDC Section 20- 6.2(A) allows an applicant, the City administration and any person to appeal a decision of the ERPB to the City Commission which may reverse, affirm, or modify the appealed decision. An appeal to an ERPB decision can be made at any time after the ERPB decision is made but before a building permit is issued. CURRENT LDC REGULATIONS The Planning and Zoning Department and the City Attorney have expressed concerns on several occasions that there is no limitation on when an appeal of an ERPB decision can be filed. An appeal stays the proceedings of a project and would also stop the review of any building permit which has been applied for until the City Commission can hold a hearing and make a decision on the appeal. This would apply to any construction project whether its simple home renovation, window replacement, painting, signs, additions or new construction. A property owner has no assurance that their project will be allowed by the City until a permit is issued. This could result in a severe economic hardship on a homeowner or commercial property owner if there is a successful appeal after considerable funds have been invested in plan preparation. A LDC Atnendbnent May 26, 2009 Page 2 of 3 property owner should be able to rely on the official approval of the ERPB within a reasonable number of days. (See proposed amendment below) A secondary concern is that the current regulations allow for an appeal to be filed by "interested citizens ". There is no definition of who interested citizens are, where they are located or whether or not they have standing to file such an appeal. This generic wording could result in legal problems and is not fair to property owners to allow an appeal to be made by "any" person regardless of their relationship to the City of South Miami. It would be appropriate to limit the filing of an appeal to residents or property owners in the City. (See proposed amendment below) PROPOSED AMENDMENT (raew wording shown in bold /undertiueed; ii�ording to be rwnoved slxmws in-&44k&-4w-�eugha Section 20 -6.2 Appeals. (A) ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations of the environmental review and preservation board (ERPB) shall be posted on the City Hall bulletin board immediately following the ERPB meeting. An applicant may ob apply for a building permit after noon of the day after the ERPB meeting, at which the application was given final appite*ad approval, if all other requirements for the permit have been met. An appeal of an ERPB final decision or recommendation may be filed within thirty (30) days of the ERPB final decision or before a building permit is issued whichever comes first, a# -and be fo fe a bull - - ...a-' - :..•...., by filing same with the city clerk upon a form prescribed a therefore. Appeals may be taken filed by the applicant, :. � a property owner or resident of the City, or the city administration. (B) Stay of Proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the city commission, after notice of appeal has been filed with him, that because of the facts stated in the certificate a stay would, in the officer's opinion, cause imminent peril to life or property or that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of the Code. (C) Restraining Orders. If certification occurs in accordance with subsection (B) above, proceedings may not be stayed except by a restraining order, which may be granted by the city commission or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown. (D) Appeal Hearing. The city commission shall hear and enter a decision on all appeals within sixty (60) days of the date of filing said appeal, and shall provide due notice of the appeal to the parties. (E) Commission Action. The city commission may reverse, affirm or modify any order, requirement, decision or determination appealed from and shall make any order, requirement, decision or determination that, in the city commission's opinion, ought to be made in the circumstances. LDC Amendment May 26, 2009 Page 3 of 3 (F) Modification Allowed When practical difficulties or unnecessary hardships would result from carrying out the strict letter of a Code provision, the city commission may, in passing upon appeals, vary or modify any regulation or provision of the Code relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the Code is observed, public safety and welfare secured, and substantial justice done. (G) Prior Denials. The city commission shall not be required to hear an appeal or application previously denied if it finds that there has been no substantial change in conditions or circumstances bearing on the appeal or application. RECOMMENDATION It is recommended that the proposed amendments to Section 20- 6.2(A) as set forth above be approved. 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