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16To: Via: From: Date: CITY OF SOUTH MIAMI OFFICE OF THE CiTY MANAGER INTER-OFFICE MEMORANDUM Z001 The Honorable Mayor Stoddard and Members of the City Commission Hector Mirabile, Ph.D., City Manager /~ Christopher Brimo, AICP, Planning D' e 1 fITEMNO.jL November 1, 2011 Applicant: City of South Miami An Ordinance of the City of South Miami, Florida, amending the City of the South Miami Comprehensive Plan to amend the current future land use map category titled "Public I Institutional Uses (Four-Story)." SUMMARY OF REOUEST A Comprehensive Plan Future Land Use text amendment was initiated at a workshop held by the City Commission on April 12, 2011. At the workshop, it was decided to adopt a new future land use map category titled ~Public / Institutional (Two-Story)." On April 26, 2011 the Local Planning Agency (LP A) after public hearing, adopted a motion by a vote of 5 yeas and 2 nay (Whitman and Vitalini), recommending approval of the new category titled ~Public / Institutional (Two-Story)." On May 3, 2011 the City Commission after public hearing, adopted a motion to withdraw the new future land use map category titled "Public / Institutional (Two-Story)." The fact is that the City cnrrently has a category titled "Public / Institutional Uses (Four-Story)," that needed to be amended by deletion of religious and educational uses. The Planning and Zoning Department was instructed to review this existing land use category titled "Public / Institutional Uses (Four-Story)." The City Commission approved on first reading the creation of two new categories, Religious .and Educational uses, so they could be removed from the Publici Institutional use category. These amendments are scheduled for transmittal to the Department of Community Affairs. On May 24, 2tfl1 the Local Planning Agency (LPA) after a public hearing, .adopted a motion by a vote of 3 yeas and 3 nay (Whitman, Yanoshik, and Vi-talini) recommending approval to amend the current category titled "Public/Institutional (.:Four-Story)." The City Commission at its June 14, 2011 meeting passed on first reading, an amended future land use map category for "Public/Institutional (Four-StOTy)"; the proposal pass.ed by a vote of 4cO. This proposed amendment was transmitted to the Florida Department of Community Affair-s(DCA) and respective agencies pursuant to Section 163.3184 (2) and (3), Florida Statutes, as part of an amendment package designated ll-IESR. The DCA and respective agencies found that the proposed amendment has no advenre impact. The City may now adopt this proposed plan amendment. Upon .final adoption, the item will be 2 transmitted to the State pursuant to the requirements 0fChapter 163, Florida Statutes. It is important to note that the effective date of the ordinance has been amended with language received from the State, to reflect statutory requirements for expedited reviews. As previously noted, the backup comments from the DCA and respective agencies for the amendment package ll-lESR are attached to the first ordinance .. COMPREHENSIVE PLA..N AMENDMENT: GENERAL INFORMATION {FROM JUNE 14, 2011) A change in the Comprehensive Plan Future Land Use Element can be initiated by a property owner, the Local Planning Agency and the City Commission. An amendment to the City's Comprehensive Plan document or the future land use map requires the adoption of an ordinance by the city commission after receiving a recommendation from the City's Local Planning Agency. Following adoption of the application by the City Commission, the application package is then submitted to the Florida Department of Community Affairs (DCA) for review and approvaL For additional information on the process, please refer to line item #11 of the attached Comprehensive Plan 2010 Cycle 2 Chart. ANALYSIS NATURE OF THE PROPOSED USE As per the Zoning Use District, Section 20-3. 1 (B} of the Land Development Code, the purpose of the Public!institutfonal District is as follows: (28) "PI" Public / Institutional District: The purpose of this district is to provide for schools, governmental facilities, utilities and churches and similar uses, with building heights and intensities compatible with surrounding districts. This district is appropriate in areas designated "Public and Semi-Public" on the city's adopted Comprehensive Plan. CURRENT LAND USE CATEGORY The land use category that is currently in the Comprehensive Plan reads as follows: Public Institutional Uses (Four-Story) The public and institutional land use category is intended to provide for public schools, municipal facilities, utilities, churches, temples, synagogues and similar uses. Areas desiguated public and institutional should not be used fOT other purposes without an amendment to this plan. Zoning regulations could permit public and institutional uses on sites not so designated by this plan. (97-1ER) PROPOSED FUTURE LAND USE CATEGORY Puhlic. L Institutional Uses (Four-Story) The public and institutional land use category will be awlied to development projects and properties providing is irneflfleEl te previde fer publie scheols, .governmental munieipal facilities and trtilities, churches, temples, synagegacs and could also p.errnit other an:cillary uses similar uses. Areas designated public and institutionar should not be used for other purposes without an amemlment to this plan. ZooiRg rcgalati.eRs celild peffllit pliblic aHd mstitutienal liSCS OR sllesRet SO desigaafed by this pffin. Building 3 heights shall not exceed the average of the ma'{imUill permitted in the surrounding districts, but in no case shall a building exceed four fwe stories.. (97 1 ER) AMENDED FUTURE LAND USE CATEGORY In order to create an appropriate land use category and zoning district that would assist in implementing the strategy, the Planning and Zoning Department, working with the City Commission have revised the current future land use element which could be applied to areas that specifically require governmental and utility services and ancillary uses. The following parameters were used to develop the category: 1. The new land use categof'j cannot exceed the maximum of four (4) stories. 2. The maximum building height for the new land use category shall be as per the following sub-parameters: a. Compatible with the. surrounding and abutting properties and the immediate neighborhood; b. Consistent with the zoning district that the site is located in; c. Consistent with the Dimensional Requirements for Non-Residential Districts, Section 20-3.5(G) ofthe Land Development Code; 3. The maxi1l).um density for the new land use category shan be as per the following sub-parameters: a. Compatible with the surrounding and abutting properties and immediate neighborhood; b. Consistent with the zoning district that the site is located in; c. Consistent with the Dimensional Requirements for Non-Residential Districts, Section 20-3.5(G} of the Land Development Code; . 4. Impact of the proposed use on the city's infrastructure; and 5. Is the amendment compatible with and does it advance the city's objectives and policies contained in the comprehensive plan. The .attached "Public / Institutional Uses (Four-Storv)" category is the proposed future land use map amendment. If the attached land use category is approved and adopted by t'1e City Commission, the City can then proceed to change the Future Land Use Map by applying this category over designated properties. 4 EXCERPT FROM LAND DKVELOPMENTCOl)E, SECTION 20~3.5(G) Section 20-3.5G DIMENSIONAL REQmREMENTS NONRESIDENTIAL DISTRICTS REQUIREMENT RO LO }40 NR SR OR I Min. Lot Size Net Area (sq. ft.) 7,500 7,500 10;000 7,500 5,000 10,000 5,000 Frontage (ft) 75 75 100 75 50' 100 50 Min. Setbacks (ft.) Front 25 20 15 b 25 lOb 20 20 Rear 20 15 10 15 10 15 " Side (Interior) 10 10 0 Side (Street) 20 15 10 15 lOb 15 15 Adj. Res. Dist. 25 25 25 25 25 25 25 Side (w/driveway) 20 20 20 20 20 20 20 Between Buildings 20 20 20 Max. Building Height Stories 2 2 4 2 4 2 2 Feet 25 30 50 25 50 30 30 Max. Building Coverage (%) 30 Max. ImperviQus Coverage (%) 75 80 85 75 90 85 85 Max. Floor Area Ratio (FAR) 0.30 .70 1.60 .25 1.60 .80 .80 a 5' setback with wan opening adjacent to rear property line; no setback if no openings in wall. b Applies to ground floor only; columns are permitted within the setback. Columns shall not be greater than 24 inches in diameter; columns on the property line shall not be closer to each other than 10 feet. C The frontage requirement does not -applY to uses in the SR District. RECOMMENDATION ltis recommended that the amendment set forth above he adopted on final reading and transmitted to the State. Attachments: Draft. Ordinance Public Notice CBZ:\Comm -Items\20 11 \11-1-11 \Fi-nal-Comp Plan Ord.amend Pl\PUSLIC INST 4_ Report.doc 1 ORDINANCE NO. _____ _ 2 3 An Ordinance amending the City of the South Mimni Comprehensive Plan to 4 amend the cuuentfuture land use map category titled "Public 11nstitutional Uses 5 (Four-Story)." 6 7 WHEREAS, t,1W Florida Legislature intends that local planning he a continuous 8 and ongoing process; and 9 10 WHEREAS, Section 163.3191, Florida Statues, directs local governments to 11 adopt needed amendments to ensure that the Comprehensive Plan provides appropriate 12 policy guidance for growth and development; and 13 14 WHEREAS, On April 12, 2011, the City Commission held an advertised 15 workshop that initiated various text amendments to the South Miami Comprehensive 16 Plan; and 17 18 WHEREAS, On April 26, 2011 the Local Planning Agency (LPA) after puhlic 19 hearing, adopted a motion by a vote of 5 ayes and 2 nays ('Whitman and Vitalini) 20 recormnending approval of the new category entitled "Public / Institutional (Two-Story)." 21 22 WHEREAS, On May 3, 201 I the City Commission after public hearing, adopted a 23 motion to withdraw the new future land use map category entitled "Public / Institutional (Two- 24 Story)." The fact is that we currently have a category entitled "Public / Institutional Uses (Four- 25 Story)," that needs to be amended by deletion of religious and educational. The Planning and 26 Zoning Department was instructed to review this existing land use category entitled "Public / 27 Institutional Uses (Four-Story)." 28 29 WHEREAS, the Local Planning Agency (LP A)at its meeting on May 24, 2011 after 30 public hearing, had a split vote by a vote of 3 ayes 3 nay (Whitman, YanospJk, and Vitalini), .. and 31 could not agree on whether the category should be changed from Public / Institutional (Four- 32 Story) to Public / Institutional (Two-Story). 33 34 35 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY 36 COMMISSION OF THE CITY OF SOUTH MIA~1VII, FLORIDA, THAT: 37 38 Sectit)n 1. The City Commission hereby approves amending the Comprehensive 39 Plan Future Land Use Element by amending the current future land use map category 40 titled "Public / Institutionai Uses (Four"Story)," which shall be included in Chapter 1 41 Future Land Use Element and shall read as follows: 42 43 44 45 46 2 1 2 Public i Institutionai Uses (Four-Story) 3 4 The public and institutional land use category will be applied to development projects 5 and properties providing is intended to provide -fur public sehools, governmental 6 municipal facilities and utilities, clmfches, temples, synagogues and could also permit 7 other ancillary uses similar uses. Areas designated public and institutional should not be 8 used for other purposes without an amendment to this plan. Zoning regclations eould 9 permit public and institutional uses on sites not so designated by this plen. Building 10 heights shall not exceed the average of the maximum permitted in the surrounding 11 districts, but in no case shall a building exceed four stories. (97 1 ER) 12 i3 Section 2: Effective Date. This ordinance shall become effective at the 14 expiration of ten days after adoption. The effective date of this pla.'1 amendment. if the 15 amendment is not timely challenged. shall be 31 days after the state land planning agency notifies 16 the local government that the plan amendment package is complete. If timely chaflenged, this 17 amendment shall become effective on the date the state land planning agency or the 18 Administration Commission enters a final order determining this adopted amendment to be in 19 compliance. No development orders, development permits, or land uses deuendent on this 20 amendment J1'l.ay be issued or commence before it has become effective. If a final order of 21 noncompliance is issued by the Administration Commission, this amem1-nent may nevertheless 22 be made effective by adoption of a resolution affinning its effective status,. a copy of which 23 resolution shall be sent to the state land planning agency. 24 25 26 27 PASSED AND ADOPTED this _ day ____ -'2011 28 29 30 31 ATTEST: APPROVED: 32 33 34 35 CITY CLERK MAYOR 36 37 Commission Vote: 38 READ AND APPROVED AS TO FORM Mayor Stoddard: 39 LANGUAGE, LEGALITY AND Vice Mayor Newman: 40 EXECUTION THEREOF: Commissioner Palmer: 4-1 Commissioner Beasley: 42 Commissioner Hams: 43 CITY ATTORNEY 44 45 46 MIAMI DAILY BUSINESS REVIEW PuIli.1Ied Oalo/ e><""ptSalllrctay, Sunday a,.,d le;laIHo,days Miami, Miami.Qada C<l0Jl1!Y, FiO,.;ja STATEOFFLORtDA COUNTY OF MIAMI-DAPE: Before the undSl'$lgned authority personaUy appeared V, PEREZ, Who on oath says that he or she [s the LEGAL CLERK, legal Notices of the Miami Daily Business Review jM3 Miami Review, a daily (e:<c<>pt Saiurday, Sunday and Legal Holklays) newspaper, published at Miami in Miami-Dade County, Florida; that the attached copy of advertisement, balog a legal Advert,sement oJ Notice ;n the matter of em OF SOUTH MIAMI PUBLIC HEARING -NOVEMBER 1, 2011 in the XXXX Court, was published in said nR-NSpaper in the issues 01 10/21/2011 Affiant further says Ihat the said Miami Daity Business Review is a newspaper published at Miami in said Miami·Dade County, Florida and that the said newspaper has heretofore been continuously published in said Miami-Dade County, Ftonda, each day {except Saturday, Sunday and legal Holldays) and has been entered as second class mail matter at the post office in Miami In said Miami-Dade County, Flonda, lor a period of one year next preceding the first publicatiOn of Ihe attached copy oj advertisement; and affiant further says that he or she has neilher paid nor promised any pelSOr., firm or corporation any discount, rebate, commission or refund for the purpose of securing thiS adveriisemen!,..fQr publication in lhe said news;:v Sworn to and Subscribed before me this 21 dayofOCTOBEA ,A.D. 2011 r:L/#~~ /' {SEAl) V. PEREZ personally known to me #.~., ~'». --Ne!&!y ~ Slate of Florida f 'Q", ~ Chol}'lH.Mamte! I ~~~i My 9ornmlsslon 00793400 ',,~ Elpuas 0711812012 y" ;_An-Oldinance amending !he text 01 th~ -S6iil1l MiajTlJ ccmpre!len-, swEi Plan, by-amending the-CCmprohensive Plan fUlure":la'n"d . _US!! Element in.ooIer t¢_sroorid lh'e-I\ltUre land use'm.ap <:aleg<ily. -entiUed ,~Pub1;c.rrnslitu1lonal -(TwMitory);: remo\>ing _schools '(educationlll), and -churches 'from lhe ealego!y: Wf1l<:h_coisld be "applie'd', to developmen.l pttljeets ',and ,'propertieS' _ providing 9OVemmenlal:'_faeml~~, _utilme_s an(i-'eoo1d .'alSO-_-pellTlit -clher -.,artdrna:ry lISeSirriplementixl bY tile category; l'iitl!bUUdit;g tlcights - :lifd inla:ry~e.~~Il'a~bI!.~lUffi)Urniingdi~mcf$, '_ ,,-' t~,orrkan~,an;~'n~~;th'~~~f!h;;'S;;'ut~Miini'i:cJi;mpre-h~n--" ::;'Slve"~1im"b¥_ ameciOiryg7tfl6 Comprehensive' plan-FuMe Uintl ,-_~-vs.:; Elem'ent-lri' ORt~rilo _aooJl\:a naw,fulilre :land-US(I' map :,-;o:·"ce.teg(il"'J,enliUw ~Flali9ious{lwo-.story):Whlcll COVIdl)'a,_appl[ad -to: develop'man! -p-rojecls.-_BIId ,propertieS \p(oVklirig;~:jgk»J_S :_-' .. la'Cilllies arn:l,eoukl"a!S(qrenlli(o!her:~l!ary,uses implemerited . by lI1e_categ&y;;with:titlilding lleigh!~ <1l1d in«1n!>itles -coillpat1)le \vithSuITOund'n'g'oiStricts._' -' '"" ,--, ':,~,: ·c--:.An'6i¢L~~:a~;;'rig;I!~'Ci~_;,iU;~ ~l~i.i_i~!tom;;:~~~n-~:' "< : __ ~iVa ,~lan'~!l:.!¥TI_~Ii~;Jl1e);ufrent jubJm !aru::_U?~:~,iip~~t~~%:_ ~; , _, '.~_H,~t~~_~,b,~~?:~j_~~~~~~~,r~,~:St(lry):_ ,_ :~: ;::!_7:~~~ ,'~:;?;-'-5-"-:_: " An,Ofdi~lI~ amendin(lllia City 0/ ScUlh Miamf CoriipreooMive . ,~~i~~~~~~~f:t~~)~~;~_~~_rt!;~5~r.~i~;¥~rt:-, ,,-, ~';;j~~~_ril!~~a~il\9:l~ci!yc;fiM's6ulhMiamiCO~rii~ '«(!.s}\(e'P!an to ac:!opta~n~,h!t\lre land use map 'categmy'mled ::::::~=~red~a~'~ti~:~i~~~~~~tnd~lrt·i£i~: ;':~E~~~~~~h,~~~~~:cOO,f~~,;~_i~i~~f1~~~~;n~at , -Maria M:,Meneildez; CMC " '. -: ''':'C'' " " , C\IyC!eris_, ~ Pursuant '10-f'iOrJda:S!~Me$ ~~.Ol(j5~:tl)e;,Cl_iY_lw'repy atMses -the pubUe IIlaI if a person d(!ddes 10 appear anyaW$l()r1 made Oy_this_B:o?fIJ_., Agency or C6rri_m,iss!on\>{.th rllSpeet !o any_ matter rorlS[dered 'aHti meeting or hearlng;'he ~r,she will,n~ed a reeortl_()f the proceediflgs, and thill r«such porpooe~affe,C!ed Jle,1SPn may Ile&/,!oensufe lha\e yeibatlm record o!'!he p~ad,ngs"·.s'madg whiell nicOro includes Me'teStimony and evidence upOn which the appeal is"to be based. 10121 11-3-j97{t77~17M THE MIAMI HERALD I Miaf!!iHerald.com CRIME WATCH ~~",,~'''/~~=~~======= Simple tips to prevent fraud on the Internet BY CARMEN GONZALEZ CALDWELL Special to The Miami Herald O ctober is National Crime Prevention month, and this week I want to share with you information being provided by our Miami FBI office, This is a real eye-- opener, and we thank the FBI for keeping us in- formed and giving us the ability to help stop fraud in its tracks. In 2010, Floridians flled almost 20,000 complaints and suffered $37 million in losses through fraudulent activities on the Internet For the past eight years, the FBI has designated October as National Cyber Security Awareness Month to high- light the importance of protecting our cyber net- works. The FBI leads the national effort to investi~ gate Internet criminal ac* tivity, called cyber crime, including cyber~terrorism, computer intrusion, online sexual exploitation and major cyber frauds, This column focuses on cyber frauds. Internet criminals seek to defraud victims through a variety of schemes. The more commonly used methods include auction fraud, credit card fraud, identity theft, phishing attacks and holiday/charity scams. Here are a couple of examples of these scams: • In auction fraud, In~ ternet criminals post classi- fied ads and auction an~ nauncements for products they do not have and rip off buyers by creative use of stolen credit cards. Fraudsters receive a victim's order; charge the victim's credit card for the amolUlt of the order, then use a separate, stolen credit card for the actual purchase. ney pocket the purchase price obtained from the victim's credit card and have the mer~ chant ship the item directly to the victim. Consequent- ly, an item purchased from an online auction, but re- ceived directly from the merchant, is a strong in- dication of fraud. Victims not only lose the money paid to the fraudster, but may be liable for receiving stolen goods. • In phishing schemes, a fraudster poses as a bank or other legitimate entity and uses emails and scam websites to obtain a vic- tim's personal infonnation, such as bank account num- bers and Social Security accolUlt information. In this scam, fraudsters direct victims to follow a link or call a number to update an accolUlt or correct an al- leged problem. The link directs the victim to a fraudulent website that appears legitimate. Instead, the site allows the fraudster to steal the victim's person* al infonnation. Bottom line, only go to the official web- site to check accounts and be leery of emails claiming there is a problem with your fmanciaI accounts. There are several web- sites that provide infonna- tion about the myriad In~ ternet scams in use today. The website WV/W"Jooks toogoodtobetrue.com was launched in October 2005 by the FBI, u.s. Postal Service and several com- mercial partners to educate and help protect consum- ers against Internet crimes. Additionally, the Internet Crimes Complaint Center website, www.ic3.gov. is the best location to make a complaint about Internet fraud. If you think you are a victim of an. Internet crime, go to the IC3 website to register your complaint. By taking the time to educate yourself about Internet scams and taking prudent precautions, you can benefit from the In~ temet without becoming a victim. Supervisol)' Special Agent Raymond T. Goer- gen leads the Computer Intrusion Squad in the FBI's Miami field office. Carmen Caldwell is executive director of Citi- zens' Crime Watch ofMi- ami-Dade. Sendfeedback and news fOT this column to carmen@citizenscrime watcfLoJg, or caU her at 305-470-1670, ~ __ 1l ~.m",,"J:!r'l'It1(D ~$a~r Best local deals MiamiHerald.eomfdeal •• ver Up to 90% Off . daily in your inbox! ~ o SE SUNDAY, DCTOB_EI3P, 2011 I 37SE CI!y OF SOUTH MIAMI COURTESY NOTICE NOTICE IS HEREBY given that the City Commission of the Clty of South Miami, Florida wI!! conduct Public Hearings at its regular City Commission meeting scheduled for Tuesday. November 1. 2011 , beginning at 7:30 p.m., in the City Commission Chambers, 6130 Sunset Drive, to consider the following item(s): A Resolution authorizing the City Manager to enter Into a Software Maintenance agreement with Executlme, SunGard Public Sector's only Premier Solution Provider that supplies electronic payroll integration for the sum of $18,750 for a five-year period, with an annual maintenance tee payment of $3,750 to be paid from account number OOH330-S13-4634 Maintenance Computer Programs beginning November 1,2012; and providing for an effective date. A Resolution relating t.o a request pursuant to Section 20~3.4(B){16) of the Land Development Code for Specia! Use Approval to locate a barber ShOp at 5825 SW 68 Street within the "Lon Low~lntensity Office zoning district A Resolution authorizing the City Manager to execute a 5-year agreement W!th,;::-;= __ for the pool operations and management of the planned Murray Park Community Pool . An Ordinance amending the City of South Miami Pension Plan, providing for an amendment te Section 16-21 Purchase of credited selVice, to provide an incentive f.ofretirement fer qualified police officer employees of the City of South Miami by Including an additional eight (8) months of prior credited selVice, within a specified period of time. An Ordinance amending the South Miami Pension Plan, providing for an amendment to Section 16-12, Definitions, Section 16-13, Eligibility, to Section 16-14, Pension Benefits and Retirement Oates, Section 16-19, Contributions to comply with current City policy concerning the definitions .of annual compensati.on and final average compensati.on; and also amending Section 16~13, Eligibility. An Ordinance amending the text of the South Miami Comprehensive Plan, by amending the Comprehensive Plan Future Land Use Element in order to adopt a new future land use map category entitled "Low Density Multjp!e~Famlly Residential (Two-Story),~ which in the future could be applied to development projects and properties providing multiple·family units or townhouse units in transitional residential areas, An Ordinance amending the text of the South MiamJ Comprehensive Plan, by amending the Comprehensive Plan Future Land Use Element in .order to amend the future land use map category entitled "Pub!icllnstitutionai (Two~St.ory),~ remOving schools (educational) and churches from the category; which could be applied to development projects and properties providing governmental facUlties, utilities and could also permit other ancillary uses implemented by the category, with building heights and intenslties compatible with surrounding districts . An Ordinance amending the text of the South Miami Comprehensive Plan, by amending the Comprehenslve Plan Future Land Use ·Element in order to adopt a new future land use map category entitled fiRellgious (Two-Story)," which could be applied to development projects and properties providing religious facilities and could also permitotheranciUary uses implemented by the category, with building heights and intensities compatible with surrounding districts. / An Ordinance amending the City oflhe South Miami Comprehensive Plan to amend the current \ ~ future land use map category titled "PubUcI!nstitutlonal Uses (Four~Story).~ J An Ordinance amending the City of South Miami Comprehensive Plan to adopt a new future land use map category titled "Mixed Use-CommerciaVResidential {Two Story}." An Ordinance amending the City of the South Miami Comprehensive Plan to adopt a new future land use map category titled "Hospital.u ALL interested parties are invited to attend and will be heard . For further information, please contact the City Clerk's Office at: 305-663-6340. Maria M. Menendez, CMC City Clerk. Pursuant to Florida StaMes 286.0105, the City hereby advises the public that if a person decides to appeal any decision made by this Soard,AgertC"i or Commission with respect to any matter considered at Its meetill\j or heafing, he or she will oettd a record of the proceedlngs, ami that lor such PUWOSe, affectttd person may need to ensure that a verbatim recon:! of the prcceedlngs Is made which recon:! lncludes !J1e testimony and evidence upon wllleh the appeal Is to be based.