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1 ORDINANCE NO. ______ _
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3 An Ordinance amending South Miami Land Development Code, article VI,
4 section 20-6.2 (A) and (B) concerning the procedures and stay of
5 proceedings for the review of or appeals from the decisions of the
6 Environmental Preservation and Review Board.
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9 Whereas, the Land Development Code (''LDC'') of the City of South Miami ("City") provides for
10 appeals from the decisions of the Environmental Preservation and Review Board ("ERPB"); and
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13 Whereas, the LDC does not provide for review at the request of a member of the City
14 Commission; and
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16 Whereas, the LDC does not provide adequate procedure for the review of or appeal from
17 a decision of the ERPB.
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19 NOW, THEREFORE, BE IT ORDAINEDED BY THE MAYOR AND CITY
20 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
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22 Section 1: The South Miami Land Development Code, article VI, section 20-6.2 (A) and (B)
23 shall be amended as follows:
24 20-6.2 -Appeals and Review.
25 (A) ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations of the
26 environmental review and preservation board (ERPB) shall be posted on the City Hall
27 bulletin board immediately following the ERPB meeting. An applicant may apply for a
28 building permit 72 hours aftef.-following twelve (12:00) noon of the day after the day of the
29 ERPB meeting, at which the application was given final approval or on the day following
30 the decision of the City Commission approving the application, if applicable, whichever is
31 the later date and provided that if all other requirements for the permit have been met. An
32 appeal of an ERPB final decision, or recommendation of the ERPB may be taken to the
33 City Commission if filed within thirty (30) days of the ERPB final decision, or, if a stay is
34 not entered, the appeal must be taken before a building permit is issued, whichever comes
35 first,-,--The appeal shall be filed by filing same with the Ceity Celerk upon a form prescribed
36 therefore. Appeals may be filed by the applicant, a property owner, business owner, or
37 resident of the City, the Ceity administration, or any interested citizens living in an abutting
38 municipality and within 500 feet of the property under review. , A member of the City
39 Commission may request a review of the decision of the ERPB if the request is made in
40 writing and delivered to the Planning and Zoning Director within three (3) working days
41 (excluding Saturdays, Sundays and legal Miami-Dade County holidays) following the day
42 of the pertinent meeting. A review at the request of a member of the Commission shall be
43 treated as an appeal solely for the purpose of the procedure to be followed for the review.
44 The person who files an appeal ("appellant"), other than a Commission member requesting
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1 a review, shall pay the applicable appellate filing fee as set forth in the City'S Fee Schedule.
2 The appellant shall pay the cost of transcribing the testimony and statements made at the
3 pertinent ERPB meeting. Unless waived in writing by all of the parties to the appeal, the
4 preparation of the transcript is a prerequisite to the appeal. If a review of the ERPB decision
5 is at the request of a member of the City Commission, the City shall advance the cost of the
6 transcription. The transcript shall be delivered to the City Clerk at least thirty (30) days
7 prior to the hearing on the appeal. The failure of the appellant to timely deliver the
8 transcript shall be grounds for the dismissal of the appeal or, if good cause is shown for the
9 delay and an extension of time is granted by the City Clerk for the preparation of the
10 transcript, the hearing date for the appeal or review, as well as all other schedule of events,
11 such as service of briefs, shall be extended accordingly notwithstanding any other provision
12 of this ordinance to the contrary. The person, including the City, who causes the transcript
13 to be prepared, if deemed to be the prevailing party on the significant appellate issues, shall
14 be reimbursed the cost of the transcription by the non-prevailing party. If there is more than
15 one non-prevailing party, the cost shall be shared equally between the non-prevailing
16 parties. The evidence on appeal shall be limited to the record which shall consist of the
17 transcript of the proceedings and any documents that were presented at the pertinent
18 meeting ("record on appeal"). The City Clerk or the Planning and Zoning Department shall
19 prepare the record on appeal after the appellant delivers the pertinent transcript. The
20 appellant shall prepare a written statement of the issues and an argument ("brief') which
21 shall be filed with the City Clerk, and delivered ("served") by mail (if mailed, delivery is
22 upon receipt), facsimile transmission, e-mail or other acceptable electronic transmission, at
23 least twenty (20) days before the hearing of the appeal or Commission review. The
24 opposing party ("appellee"), which may include the City, may also prepare a brief, if
25 desired, which shall be filed with the City Clerk and served on the appellant at least six (6)
26 days before the scheduled appellate hearing. The appeal shall be limited to the issues raised
27 in the briefs.
28 (B) Stay of Proceedings. An appeal stays all proceedings in furtherance of the action
29 appealed from, unless the City Commission finds that there is competent substantial
30 evidence to support the finding of facts and conclusions in the certificate of the officer.
31 department director, City employee or board (hereinafter collectively referred to as
32 "Officer") from whom the appeal is taken certifies to the city commission, after notice of
33 appeal has been filed with him, that because of the facts stated in the certificate a stay
34 would, in the officer's opinion, cause imminent peril to life or property or that because the
35 violation charged is transitory in nature a stay would seriously interfere with enforcement of
36 the Code.
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38 Section 2: Codification. The provisions of this ordinance shall become and be
39 made part of the Code of Ordinances of the City of South Miami as amended; that the
40 sections of this ordinance may be renumbered or re-Iettered to accomplish such intention;
41 and that the word "ordinance" may be changed to "section" or other appropriate word.
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43 Section 3. Severability. If any section, clause, sentence, or phrase of this ordinance
44 is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this
45 holding shall not affect the validity of the remaining portions of this ordinance.
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2 Section 4. Ordinances in Conflict. All ordinances or parts of ordinances and all
3 sections and parts of sections of ordinances in direct conflict herewith are hereby repealed.
4 However, it is not the intent of this section to repeal entire ordinances, or parts of
5 ordinances, that give the appearance of being in conflict when the two ordinances can be
6 harmonized or when only a portion of the ordinance in conflict needs to be repealed to
7 harmonize the ordinances. If the ordinance in conflict can be harmonized by amending its
8 terms, it is hereby amended to harmonize the two ordinances. Therefore, only that portion
9 that needs to be repealed to harmonize the two ordinances shall be repealed.
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11 Section 5. Effective Date. This ordinance shall become effective upon enactment.
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PASSED AND ENACTED this _ day of ___ -', 2012.
ATTEST:
CITY CLERK
1 st Reading
2 nd Reading
READ AND APPROVED AS TO FORM:
LANGUAGE, LEGALITY AND
EXECUTION THEREOF
CITY ATTORNEY
APPROVED:
MAYOR
COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Liebman:
Commissioner Newman:
Commissioner Harris:
Commissioner Welsh:
w:\my doeuments\resolutions\ordinanee amending Ide 20-6 2 appeals (harris).doe
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