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1 ORDINANCE NO. ______ _
2
3 An Ordinance amending South Miami Land Development Code, article VI,
4 section 20-6.2 (A) and (8) 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
1 0 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 ORDAINED 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 (8) shall be
23 amended as follows:
24 20-6.2 -Appeals and Review.
25 (A) ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations
26 of the environmental review and preservation board (ERPB) shall be posted on the City
27 Hall bulletin board immediately following the ERPB meeting. An applicant may apply
28 for a building permit after _noon of the day after four (4) working days (excluding
29 Saturdays, Sundays and legal Miami-Dade County holidays) following the day of the
30 ERPB meeting at which the application was given final approval, unless an appeal or
31 request for review is timely filed. If the decision of the ERPB is timely appealed or a
32 timely request for review is made, the applicant may not apply for the permit until the
33 day following the decision of the City Commission approving the application and
34 provided if all other requirements for the permit have been met.
35 ill An appeal of an ERPB final decision or recommendation may be taken to the
36 City Commission if filed within thirty (30) days of the ERPB final decision or
37 recommendation, or, if a stay is not entered, the appeal must be made before a
38 building permit is issued, whichever comes first,-,-The appeal shall be filed by filing
39 same with the Ceity Celerk upon a form prescribed therefor. Appeals may be filed by
40 the applicant, a property owner, business owner, or resident of the City, the Ceity
41 administration, or any interested citizens living in an abutting municipality and within
42 500 feet of the property under review.
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44 ill A member of the City Commission may request a review of the decision of the
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ERPB if the request is made in writing and delivered to the Planning and Zoning
Director within three (3) working days (excluding Saturdays, Sundays and legal
Miami-Dade County holidays) following the day of the pertinent meeting but not later
than five o'clock (5:00) p.m. on the third day. The Planning and Zoning Director
shall notify the City Clerk of the request.
ill If a commission member makes a timely request for review of a decision of the
ERPB, the issue of whether the City Commission will review the decision of the
ERPB shall be decided by separate resolution and by a majority vote of the City
Commission at the next commission meeting immediately following the applicable
meeting of the ERPB. The time limitation provided for elsewhere in the City Code
of Ordinances, for placing items on the City Commission meeting agenda, shall not
apply to ERPB a commission member's request for review of an ERPB decision or
recommendation. A review pursuant to a resolution of the City Commission shall be
treated as an appeal for the purpose of the procedure to be followed for appellate
reVIew.
ill An appellate review by the City Commission may reverse the decision of the
ERPB in whole or in part, modify the decision, or remand the matter back to the
ERPB with instructions.
ill Record on Appeal: The evidence on appeal shall be limited to the record which
shall consist of the transcript of the proceedings and any documents that were
presented at the pertinent meeting ("record on appeal"). The City Clerk or the
Planning and Zoning Department shall prepare the record on appeal after the
appellant delivers the pertinent transcript. Unless waived in writing by all of the
parties to the appeal, the preparation of the transcript is a prerequisite to the appeal. If
a review of the ERPB decision is by resolution of the City Commission, the City shall
advance the cost of the transcript. The transcript shall be delivered to the City Clerk at
least thirty (30) days prior to the hearing on the appeal. The failure of the appellant to
timely deliver the transcript shall be grounds for the dismissal of the appeal or, if
good cause is shown for the delay and an extension of time is granted by the City
Clerk for the preparation of the transcript, the hearing date for the appeal or review,
as well as all other schedule of events, such as service of briefs, shall be extended
accordingly notwithstanding any other provision of this ordinance to the contrary.
@ Briefs: The appellant shall prepare a written statement of the issues and an
argument ("brief') which shall be filed with the City Clerk, and delivered ("served")
by hand, facsimile transmission, e-mail or other acceptable electronic transmission, at
least twenty (20) days before the hearing on the appeal or Commission review. The
opposing party ("appellee"), which may include the City, may also prepare a brief, if
desired, which shall be filed with the City Clerk and served on the appellant at least
six (6) days before the scheduled appellate hearing. The appeal shall be limited to the
issues raised in the briefs.
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1 ill Appellate Costs: The person who files an appeal, shall pay the applicable
2 appellate filing fee as set forth in the City's Fee Schedule. The appellant (which term
3 shall include the person who files an appeal and the City if the review is instituted by
4 resolution), shall pay the cost of transcribing the testimony and statements made at
5 the pertinent ERPB meeting. The person, including the City, if deemed to be the
6 prevailing party on the most significant appellate issues, shall be reimbursed the
7 appellate costs, including the cost of the transcript, by the non-prevailing party or
8 parties. If there is more than one non-prevailing party, the costs shall be shared
9 equally between or among them.
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11 (B) Stay of Proceedings. An appeal or a request for review by a Commission member
12 stays all proceedings in furtherance of the action appealed from, unless the City
13 Commission finds that there is competent substantial evidence to support the finding of
14 facts and conclusions in the certificate of the officer, department director, City employee
15 or board (hereinafter collectively referred to as "Officer") from whom the appeal is taken
16 certifies to the city commission, after notice of appeal has been filed with him, that
17 because of the facts stated in the certificate a stay would, in the officer's opinion, cause
18 imminent peril to life or property or that because the violation charged is transitory in
19 nature a stay would seriously interfere with enforcement of the Code.
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21 Section 2: Codification. The provisions of this ordinance shall become and be
22 made part of the Code of Ordinances of the City of South Miami as amended; that the
23 sections of this ordinance may be renumbered or re-Iettered to accomplish such intention;
24 and that the word "ordinance" may be changed to "section" or other appropriate word.
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26 Section 3. Severability. If any section, clause, sentence, or phrase of this ordinance
27 is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this
28 holding shall not affect the validity of the remaining portions of this ordinance.
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30 Section 4. Ordinances in Conflict. All ordinances or parts of ordinances and all
31 sections and parts of sections of ordinances in direct conflict herewith are hereby repealed.
32 However, it is not the intent of this section to repeal entire ordinances, or parts of
33 ordinances, that give the appearance of being in conflict when the two ordinances can be
34 harmonized or when only a portion of the ordinance in conflict needs to be repealed to
35 harmonize the ordinances. Ifthe ordinance in conflict can be harmonized by amending its
36 terms, it is hereby amended to harmonize the two ordinances. Therefore, only that portion
37 that needs to be repealed to harmonize the two ordinances shall be repealed.
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39 Section 5. Effective Date. This ordinance shall become effective upon enactment.
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PASSED AND ENACTED this _ day of ___ -', 2012.
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ATTEST:
CITY CLERK
1 st Reading
2nd 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:
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