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10CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM To: The Honorable Mayor and Members of the City Commission Via: Orlando Martinez de Castro, Acting City Manager From: Christopher Brimo, AICP @If / Planning Director '/ lTEMNO.~ Date: July 31,2012 SUBJECT: 2001 An Ordinance amending South Miami Land Development Code, article VI, section 20-6.2 (A) and (B) concerning the procedures and stay of proceedings for the review of or appeals from the decisions of the Environmental Preservation and Review Board. BACKGROUND At a Commission meeting earlier this year, the Commission requested that the City Attorney review Section 20-6.2 dealing with Appeals and Reviews of the Environmental Review and Preservation Board (ERPB) decisions, and amend certain sections dealing with the process for appeals and reviews. Several amendments were proposed with a final reading on May 1,2012. On May 1st at the request of the ERPB members, the Commission tabled the item until such time as the Board had an opportunity to review the proposed changes and provide the Commissioners with their recommendations. Between May 15,2012 and July 3, 2012, the ERPB reviewed the proposed amendments and provided a substitute proposal for the Commission's consideration. Attached for your review are both versions of the proposed ordinances. The City Attorney has also reviewed the ERPB's proposal; they are presented in a tabular format for comparison. ERPB Ordinances: Section 20-6.2 -Appeals An Ordinance amending South Miami Land Development Code, article VI, section 20-6.2 (A) and (B) concerning the procedures and stay of proceedings for the review of or appeals from the decisions of the Environmental Review And Preservation Board. An Ordinance amending South Miami Land Development Code, article VI, section 20-6.2 (A) and (B) concerning the procedures and stay of proceedings for the review of or appeals from the decisions of the Environmental Review and Preservation Board. . . ,~.he~eas, ~e Land Development Code (''LOC'') of the City of South I . . ,~.hereas, ~e Land Development Code (''LOC'') of the City of Mia~l11 ( City') provides for appeals from the decisions of the Environmental Mi~ ( CIty'') proVl?es for appeals from the decisions of the Environmentall Review and Preservation Board (''ERPB''); and ReVlew and Preservation Board (''ERPB''); and Whereas, the LDC does not provide for review at the request Whereas, the LDC does not provide for review at the request of a member of the City Commission; and of a member of the City Commission; and . Whereas, the LDC does not provide adequate procedure for the . Whereas, the LDC does not provide adequate procedure for the review of or appeal from a decision of the ERPB. review of or appeal from a decision of the ERPB. NOW, THEREFORE, BE IT ORDAINED BY THE WH~REAS, On May 1,2012 the City Commission deferred the MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH proposed ordmance to allow the ERPB an opportunity to review and MIAMI, FLORIDA: comment on the proposal; and Section 1: The South Miami Land Development Code, article VI, section 20-6.2 (A) and (B) shall be amended as follows: 20-6.2 -Appeals and Review. (A) ERP B 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 apply for a building permit after _noon of the day aftef four (4) working days (excluding Saturdays, Sundays and legal Miami-Dade County holidays) following the day of the ERPB meetin!2: at which the aoolication was !2:iven final Section 20-6.2 Draft Amendments (7/25/12) WHEREAS, the ERPB reviewed the proposed ordinances at several regular meetings between May 15, 2012 and July 3, 2012 and determined that the process being proposed for additional City Commission review is unnecessary and burdensome on the applicant, and therefore recommends that process remains the same with the following amendments to the appeals procedure. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1: The South Miami Land Development Code, article VI, section 20-6.2 (A) and (B) shall be amended as follows: Page 1 of5 ERPB Ordinances: Section 20-6.2 -Appeals approval, unless an appeal or request for review is timely filed. If the decision of the ERPB is timely appealed or a timely request for review is made, the applicant may not apply for the permit until the day following the decision of the City Commission approving the application and provided if all other requirements for the permit have been met. ill An appeal of an ERPB final decision or recommendation may be taken to the City Commission if filed within thirty (30) days of the ERPB final decision or recommendation, or, if a stay is not entered, the appeal must be made before a building permit is issued, whichever comes first,-,-The appeal shall be filed by filing same with the ~eity Celerk upon a form prescribed therefore. Appeals may be filed by the applicant, a property owner, business owner, or resident of the City, the ~eity administration, or any interested citizens living in an abutting municipality and within 500 feet ofthe property under review. ill A member of the City Commission may request a review of the decision of the 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 a Section 20-6.2 Draft Amendments (7/25/12) 20-6.2 -Appeals and Review. (A) ERP B 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 apply for a building permit after twelve noon of the day following four (4) working days (excluding Saturdays, Sundays and legal Miami Dade County holidays) follo'.ving the day of the ERPB meeting at which the application was given final approval, unless an appeal or request for reyie'tv is timely filed. If the decision of the ERPB is timely appealed or a timely request for revie'iv is made, the applicant may not apply for the permit until the day follo","ing the decision of the City Commission approving the application and provided if all other requirements for the permit have been met. ill An appeal of an ERPB final decision or recommendation may be taken to the City Commission if filed within thirty (30) days of the ERPB final decision or recommendation, or, if a stay is not entered, the appeal must be made before a building permit is issued, whichever comes first,;: The appeal shall be filed by filing same with the ~eity Celerk upon a form prescribed therefor. Appeals may be filed by the applicant, a property owner, business owner, or resident of the City, the ~eity administration, or any interested citizens living in an abutting municipality and within 500 feet of the property under review. (2) A member of the City Commission may request a review of the decision of the ERPB if the request is made in 'Nriting and delivered to the Planning and Zoning Director within three (3) "'lorking da;ys (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 Page 2 of5 ERPB Ordinances: Section 20-6.2 -Appeals commission member's reguest for review of an ERPB Zoning Director shall notify the City Clerk of the request. decision or recommendation. A review Qursuant to a E;;1 If a commission memBer makes a timel)' request for resolution of the Ci:ty Commission shall be treated as an aQQeal for the QurQose of the Qrocedure to be followed for review ofa decision of the ERPB, the issue of'.vhether the Ci!)' Commission ',vill re,Aew the decision of the ERPB aQQellate review. shall Be decided By se!)arate resolution and By a majori!)' ill An aQl2ellate review by the City Commission may 'iote of the Cm' Commission at the ne~H commission reverse the decision of the ERPB in whole or in Qart, meeting immediatel)' follo:vring the ~!)licaBle meeting of modify the decision, or remand the matter back to the the ERPB. The time limitation !)rovided for elsewhere in ERPB with instructions. the Ci!y Code ofGrdinances, for !)lacing items on the Ci!)' Commission meeting agenda, shall not a!)!)ly to a ill Record on AQQeal: The evidence on aQQeal shall be commission memBer's request for re,Ae:w of an ERPB decision or recommendation. A re'iie'",' !)ursuant to a limited to the record which shall consist of the transcriQt of resolution of the Ci!)' Commission shall Be treated as an the Qroceedings and any documents that were Qresented at a!)!)eal for the !)Uffiose of the !)rocedure to Be followed for the Qertinent meeting ("record on aQQeal"). The Ci:ty Clerk mmellate review. or the Planning and Zoning DeQartment shall QreQare the record on aQQeal after the aQQellant delivers the Qertinent f44 (2) An aQQellate review by the Ci:ty Commission may transcriQt. Unless waived in writing by all of the Qarties to reverse the decision of the ERPB in whole or in Qart, the aQQeal, the QreQaration of the transcriQt is a Qrereguisite modify the decision, or remand the matter back to the to the aQQeal. If a review of the ERPB decision is by ERPB with instructions. resolution of the Ci:ty Commission, the Ci:ty shall advance the cost of the transcriQt. The transcriQt shall be delivered ~ (3) Record on AQQeal: The evidence on aQQeal shall be to the Ci:ty Clerk at least thiny (30) days Qrior to the limited to the record which shall consist of the transcriQt of hearing on the aQQeal. The failure of the aQQellant to timely the Qroceedings and any documents that were Qresented at deliver the transcriQt shall be grounds for the dismissal of the Qertinent meeting ("record on aQQeal"). The Ci:ty Clerk the aQQeal or, if good cause is shown for the delay and an or the Planning and Zoning De!)artment shall QreQare the extension of time is granted by the Ci:ty Clerk for the record on aQQeal after the aQQellant delivers the Qertinent QreQaration of the transcriQt, the hearing date for the aQQeal transcriQt. Unless waived in writing by all of the Qarties to or review, as well as all other schedule of events, such as the aQQeal, the QreQaration of the transcriQt is a Qrereguisite service of briefs, shall be extended accordingly to the aQQeal. The transcriQt shall be delivered to the Ci:ty notwithstanding any other Qrovision of this ordinance to the Clerk at least thiny (30) days Qrior to the hearing on the contrary. aQQeal. The failure of the aQQellant to timely deliver the transcriQt shall be grounds for the dismissal of the aQQeal (Q) Briefs: The aQQellant shall QreQare a written statement or, if good cause is shown for the delay and an extension of of the issues and an argument ("brief") which shall be filed time is granted by the Ci:ty Clerk for the QreQaration of the with the City Clerk, and delivered ("served") by hand, transcrint the hearim! date for the anneal or review as well Section 20-6.2 Draft Amendments (7/25/12) Page 3 of5 ERPB Ordinances: Section 20-6.2 -Appeals 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. ill Appellate Costs: The person who files an appeal, shall pay the applicable appellate filing fee as set forth in the City's Fee Schedule. The appellant (which term shall include the person who files an appeal and the City if the review is instituted by resolution), shall pay the cost of transcribing the testimony and statements made at the pertinent ERPB meeting. The person, including the City, if deemed to be the prevailing party on the most significant appellate issues, shall be reimbursed the appellate costs, including the cost of the transcript, by the non-prevailing party or parties. If there is more than one non-prevailing party, the costs shall be shared equally between or among them. (B) Stay of Proceedings. An appeal or a request for review by a Commission member stays all proceedings in furtherance of the action appealed from, unless the City Commission finds that there is competent substantial evidence to support the finding of facts and conclusions in the certificate of the officer~ department director, City employee or board (hereinafter collectively referred to as "Officer") from whom the appeal is taken certifies to the city commission, after notice of appeal has been filed 'Nith 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. Section 20-6.2 Draft Amendments (7/25112) 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. fB (4) 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. fA (5) Appellate Costs:· The person who files an appeal, shall pay the applicable appellate filing fee as set forth in the City's Fee Schedule. The appellant (which term shall include the person who files an appeal and the City if the review is instituted by resolution), shall pay the cost of transcribing the testimony and statements made at the pertinent ERPB meeting. The person, including the City, if deemed to be the prevailing party on the most significant appellate issues, shall be reimbursed the appellate costs, including the cost of the transcript, by the non-prevailing party or parties. If there is more than one non-prevailing party, the costs shall be shared equally between or among them. (B) Stay of Proceedings. An appeal or a request for revievl by a Commission member stays all proceedings in furtherance of the action appealed from, unless the City Commission finds that there is competent substantial evidence to support the finding of facts and conclusions in the certificate of the officer~ department director, City employee or board (hereinafter collectively referred to as "Officer") from whom the appeal is Page 4 of5 ERPB Ordinances: Section 20-6.2 -Appeals Section 2: Codification. The provisions ofthis ordinance shall become and be made part of the Code of Ordinances of the City of South Miami as amended; that the sections of this ordinance may be renumbered or re-Iettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. Section 3. Severability. 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. Ordinances in Conflict. All ordinances or parts of ordinances and all sections and parts of sections of ordinances in direct conflict herewith are hereby repealed. However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances, that give the appearance of being in conflict when the two ordinances can be harmonized or when only a portion of the ordinance in conflict needs to be repealed to harmonize the ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed to harmonize the two ordinances shall be repealed. Section 5. Effective Date. This ordinance shall become effective upon enactment. Section 20-6.2 Draft Amendments (7/25/12) taken certifies to the city commission, after notice of appeal has been filed 'Nith 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. Section 2: Codification. The provisions of this ordinance shall become and be made part of the Code of Ordinances of the City of South Miami as amended; that the sections of this ordinance may be renumbered or re-Iettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. Section 3. Severability. 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. Ordinances in Conflict. All ordinances or parts of ordinances and all sections and parts of sections of ordinances in direct conflict herewith are hereby repealed. However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances, that give the appearance of being in conflict when the two ordinances can be harmonized or when only a portion of the ordinance in conflict needs to be repealed to harmonize the ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed to harmonize the two ordinances shall be repealed. Section 5. Effective Date. This ordinance shall become effective upon enactment. Page 5 of5 ERPB Ordinances: Section 20-6.2 -Appeals Commission Proposal Reviewed May 1, 2012 1 An Ordinance amending South Miami Land Development Code, article VI, section 2 20-6.2 (A) and (B) concerning the procedures and stay of proceedings for the review 3 of or appeals from the decisions of the Environmental Review and Preservation 4 Board. 5 6 7 Whereas, the Land Development Code ("LOC") of the City of South Miaini ("City") provides for appeals 8 from the decisions ofthe Environmental Review and Preservation Board ("ERPB"); and 9 10 11 Whereas, the LDC does not provide for revIew at the request of a member of the City 12 Commission; and 13 14 Whereas, the LDC does not provide adequate procedure for the review of or appeal from a 15 decision of the ERPB. 16 17 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION 18 OF THE CITY OF SOUTH MIAMI, FLORIDA: 19 20 Section 1: The South Miami Land Development Code, article VI, section 20-6.2 (A) and (B) shall be amended as 21 follows: 22 20-6.2 -Appeals and Review. 23 (A) ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations of the 24 environmental review and preservation board (ERPB) shall be posted on the City Hall bulletin 25 board immediately following the ERPB meeting. An applicant may apply for a building permit 26 after _noon of the day after four (4) working days (excluding Saturdays, Sundays and legal 27 Miami-Dade County holidays) following the day of the ERPB meeting at which the application 28 was given final approval, unless an appeal or request for review is timely filed. If the decision of 29 the ERPB is timely appealed or a timely request for review is made, the applicant may not apply 30 for the permit until the day following the decision of the City Commission approving the 31 application and provided if all other requirements for the permit have been met. 32 ill An appeal of an ERPB final decision or recommendation may be taken to the City 33 Commission if filed within thirty (30) days of the ERPB final decision or recommendation, 34 or, if a stay is not entered, the appeal must be made before a building permit is issued, 35 whichever comes first~ The appeal shall be filed by filing same with the .G.eity Celerk upon a 36 form prescribed therefore. Appeals may be filed by the applicant, a property owner, business 37 owner, or resident of the City, the .G.eity administration, or any interested citizens living in an 38 abutting municipality and within 500 feet of the property under review. 39 40 ill A member of the City Commission may request a review of the decision of the ERPB if 41 the request is made in writing and delivered to the Planning and Zoning Director within three 42 (3) working days (excluding Saturdays, Sundays and legal Miami-Dade County holidays) 43 following the day of the pertinent meeting but not later than five o'clock (5:00) p.m. on the 44 third day. The Planning and Zoning Director shall notify the City Clerk of the request. 45 46 ill If a commission member makes a timely request for review of a decision of the ERPB, 47 the issue of whether the City Commission will review the decision of the ERPB shall be 48 decided by separate resolution and by a majority vote of the City Commission at the next 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 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 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. ill 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. ill Appellate Costs: The person who files an appeal, shall pay the applicable appellate filing fee as set forth in the City's Fee Schedule. The appellant (which term shall include the person who files an appeal and the City if the review is instituted by resolution), shall pay the cost of transcribing the testimony and statements made at the pertinent ERPB meeting. The person, including the City, if deemed to be the prevailing party on the most significant appellate issues, shall be reimbursed the appellate costs, including the cost of the transcript, by the non-prevailing party or parties. If there is more than one non-prevailing party, the costs shall be shared equally between or among them. (B) Stay of Proceedings. An appeal or a request for review by a Commission member stays all proceedings in furtherance of the action appealed from, unless the City Commission finds that there is competent substantial evidence to support the finding of facts and conclusions in the certificate of the officer, department director, City employee or board (hereinafter collectively referred to as "Officer") from whom the appeal is taken certifies to the city commission, aftef 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Code. Section 2: Codification. The provisions of this ordinance shall become and be made part of the Code of Ordinances of the City of South Miami as amended; that the sections of this ordinance may be renumbered or re-Iettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. Section 3. Severability. 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. Ordinances in Conflict. All ordinances or parts of ordinances and all sections and parts of sections of ordinances in direct conflict herewith are hereby repealed. However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances, that give the appearance of being in conflict when the two ordinances can be harmonized or when only a portion of the ordinance in conflict needs to be repealed to harmonize the ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed to harmonize the two ordinances shall be repealed. Section 5. Effective Date. This ordinance shall become effective upon enactment. PASSED AND ADOPTED this __ , day of ___ , 2012. ATTEST: CITY CLERK 1st 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: ERPB Ordinances: Section 20-6.2 -Appeals ERPB Recommended Amendments -July 3,2012 1 An Ordinance amending South Miami Land Development Code, article VI, 2 section 20-6.2 (A) and (B) concerning the procedures and stay of proceedings 3 for the review of or appeals from the decisions of the Environmental Review 4 and Preservation Board. 5 6 Whereas, the Land Development Code ("LOC") of the City of South Miami ("City") provides for appeals 7 from the decisions of the Environmental Review and Preservation Board ("ERPB"); and 8 9 Whereas, the LDC does not provide adequate procedure for the review of or appeal from a 10 decision of the ERPB. 11 12 WHEREAS, On May 1, 2012 the City Commission deferred the proposed ordinance to allow the 13 ERPB an opportunity to review and comment on the proposal; and 14 15 WHEREAS, the ERPB reviewed the proposed ordinances at several regular meetings between 16 May 15, 2012 and July 3, 2012 and determined that the process being proposed for additional City 17 Commission review is unnecessary and burdensome on the applicant, and therefore recommends that 18 process remains the same with the following amendments to the appeals procedure. 19 20 21 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE 22 CITY OF SOUTH MIAMI, FLORIDA: 23 24 25 Section 1: The South Miami Land Development Code, article VI, section 20-6.2 (A) and (B) shall be amended as 26 follows: 27 20-6.2 -Appeals and Review. 28 (A) ERPB Decisions; Time; Standing to Appeal. All decisions and recommendations of the 29 environmental review and preservation board (ERPB) shall be posted on the City Hall bulletin 30 board immediately following the ERPB meeting. An applicant may apply for a building permit 31 after twelve noon of the day following four (4) ''lorking days (excluding Saturdays, Sundays and 32 legal Miami Dade County holidays) following the day of the ERPB meeting at which the 33 application was given final approval, unless an appeal or request for review is timely filed. If the 34 decision of the ERPB is timely appealed or a timely request for revie,'l is made, the applicant may 35 not apply for the permit until the day following the decision of the City Commission approving 36 the application and provided if all other requirements for the permit have been met. 37 ill An appeal of an ERPB final decision or recommendation may be taken to the City 38 Commission if filed within thirty (30) days of the ERPB final decision or recommendation, 39 or, if a stay is not entered, the appeal must be made before a building permit is issued, 40 whichever comes first,-,--The appeal shall be filed by filing same with the .Gcity Cclerk upon a 41 form prescribed therefor. Appeals may be filed by the applicant, a property owner, business 42 owner, or resident of the City, the .Gcity administration, or any interested citizens living in an 43 abutting municipality and within 500 feet of the property under review. 44 (2) A member of the City Commission may request a review of the decision of the ERPB if 45 the request is made in writing and delivered to the Planning and Zoning Director within three 46 (3) working days (excluding Saturdays, Sundays and legal Miami Dade County holidays) 47 following the day of the pertinent meeting but not later than five o'clock (5:00) p.m. on the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 third day. The Planning and Zoning Director shall notify the City Clerk of the request. (3) If a commission member makes a timely request for revie',y ofa decision of the ERPB, the issue of whether the City Commission will revie',y 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 a commission member's request for revievl 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 follO'lved for appellate review. ffi (2) 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 (3) 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. 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. f6-t (4) 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. fA (5) Appellate Costs: The person who files an appeal, shall pay the applicable appellate filing fee as set forth in the City's Fee Schedule. The appellant (which term shall include the person who files an appeal and the City if the review is instituted by resolution), shall pay the cost of transcribing the testimony and statements made at the pertinent ERPB meeting. The person, including the City, if deemed to be the prevailing party on the most significant appellate issues, shall be reimbursed the appellate costs, including the cost ofthe transcript, by the non-prevailing party or parties. If there is more than one non-prevailing party, the costs shall be shared equally between or among them. (B) Stay of Proceedings. An appeal or a request for review by a Commission member stays all proceedings in furtherance of the action appealed from, unless the City Commission finds that there is competent substantial evidence to support the finding of facts and conclusions in the certificate of the officer, department director, City employee or board (hereinafter collectively referred to as "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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 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. Section 2: Codification. The provisions of this ordinance shall become and be made part of the Code of Ordinances of the City of South Miami as amended; that the sections of this ordinance may be renumbered or re-lettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. Section 3. Severability. 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. Ordinances in Conflict. All ordinances or parts of ordinances and all sections and parts of sections of ordinances in direct conflict herewith are hereby repealed. However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances, that give the appearance of being in conflict when the two ordinances can be harmonized or when only a portion of the ordinance in conflict needs to be repealed to harmonize the ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed to harmonize the two ordinances shall be repealed. Section 5. Effective Date. This ordinance shall become effective upon enactment. PASSED AND ENACTED this __ , day of ___ , 2012. ATTEST: CITY CLERK 1st 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: