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Res. No. 202-09-13011RESOLUTION NO. 202 -09 -1301 1 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA DETERMINING PURSUANT TO LAND DEVELOPMENT CODE SECTION 20- 4.8(C)(2) THE EXISTENCE OF A NON - CONFORMING RESTAURANT USE AT THE BEST MIAMI HOTEL LOCATED AT 5959 SW 715` STREET AND TO PERMIT THE CONTINUATION OF THE RESTAURANT USE AT SAME LOCATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, applicants Anna Oliva and Andrea Barszezuk are considering re- opening a restaurant in the space previously occupied by the former Bernie's Steak House in the Best Miami Hotel; and WHEREAS, the location of that restaurant is on the ground floor of the Best Miami Hotel, which is located in the "MO," Medium Density Office Zoning District which does not permit restaurants; and WHEREAS, a on -going use which is not permitted in the existing zoning district may continue to operate provided that the business does not cease; and WHEREAS, The Planning and Zoning Director in a communication to the hotel dated September 9, 2009 determined that the restaurant did not renew their South Miami occupational license when it expired on September 30, 2008, and therefore had lost their non- conforming status; and WEHEREAS representatives of the Hotel did report that the restaurant area continued to be used to provide in -house meals and catering; and WHEREAS, the Land Development Code (LDC) provides that if there is uncertainty in determining the existence of a non - conforming use, the Planning Board after a public hearing may consider making a recommendation on the subject pursuant to LDC Section 20- 4.8(C)(2); and WHEREAS, there is sufficient evidence that the restaurant function in the hotel has been on -going for over 20 years and also did continue for several months after the formal business was abandoned; and WHEREAS, a restaurant use is generally an accepted accessory use in a hotel and the continued restaurant use at this location is appropriate and will provide a needed service to the neighborhood and hotel clients; and WHEREAS, the City Commission after a public hearing and receipt of a recommendation from the Planning Board may permit the continuation of the nonconforming use pursuant to LDC Section 20-6. 1 (A)(2)(c).; and WHEREAS, the Planning Board at its October 13, 2009 meeting after a public hearing adopted a motion by a vote of 5 ayes 0 nays recommending approval of the proposed request to allow continuation of a non - conforming restaurant at 5959 SW 71 Street, with a condition; and Res. No. 202 -09 -13011 WHEREAS, the Mayor and City Commission of the City of South Miami desire to accept the recommendation of the Planning Board. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. That the request to continue the existence of a non - conforming restaurant use at the Best Miami Hotel located at 5959 SW 71" Street is hereby approved with the following conditions: (1)Prior to receiving a restaurant occupational license for the new restaurant the applicant must pay, to the City the cost of the occupational license for the past year plus any other out - standing fees or liens owed to the City; (2) If the proposed general restaurant is, in the future, determined by the Director of Planning, to be adversely affecting the health or safety of persons residing or working in the vicinity of the proposed use, to be detrimental to the public welfare or property or improvements in the neighborhood, or to be not in compliance with other applicable Code provisions, the continuation of the non - conforming status of the restaurant may be modified or revoked by the City Commission upon notification and public hearing. Section 2. This resolution shall be effective immediately upon being approved. PASSED AND ADOPTED this3rcl day of Nov. , 2009. ATTEST: 'ClITY CLERK' APPROVED: yC1r1f1_X (1 -1 _ Y-� , A A R Commission Vote: 5 -0 READ AN PPROVED AS TO FORM: Mayor Feliu: Yea Vice Mayor Beasley: Yea Commissioner Palmer: Yea Commissioner Newman: Yea % Commissioner Sellars: Yea CITY ATTORNEY XAComm Items\2009 \11 -3 -09 \Non- Confoming Rest Site 5959 SW 71 St Resol.doc South Miami ;g4UnerleaGii� CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTFR- OFFICE MEMORANDUM 2001 To: The Honorable Mayor Feliu and Membershe City-Commission Via: Roger M. Carlton, Acting City Manager From: Thomas J. Vageline, Director Planning and Zoning Department U' 2009 031 November 3 ITEM No. Date: > Subject: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA DETERMINING PURSUANT TO LAND DEVELOPMENT CODE SECTION 20- 4.8(C)(2) THE EXISTENCE OF A NON - CONFORMING RESTAURANT USE AT THE BEST MIAMI HOTEL LOCATED AT 5959 SW 71St STREET AND TO PERMIT THE CONTINUATION OF THE RESTAURANT USE AT SAME LOCATION; AND PROVIDING AN EFFECTIVE DATE. REQUEST: Pursuant to Section 20- 4.8(C)(2) of the Land Development Code (LDC) the applicants are requesting a finding that a former non - conforming general restaurant at the above referenced location be allowed to continue to operate. The location of the restaurant is on the ground floor of the Best Miami Hotel. The proposed restaurant is located in the "MO," Medium Density Office Zoning District which does not permit restaurants. The general restaurant use appears to have been abandoned for over a year thereby losing the non - conforming status. The LDC provides that if there is uncertainty in determining the existence of a non - conforming use, the Planning Board after a public hearing may consider making a recommendation on the subject (LDC Section 20- 4.8(C)(2). The City Commission after a public hearing and receipt of a recommendation from the Planning Board may permit the continuation of the nonconforming use (LDC Section 20-6. 1 (A)(2)(c). STAFF OBSERVATIONS (1) The applicants Anna Oliva and Andrea Barszezuk are considering re- opening a restaurant in the space previously occupied by the former Bernie's Steak House in the Best Miami Hotel. The new restaurant will be called Pikkolo Mondo The applicants and the Director of Business Operations for the hotel have both advised in separate attached letters (September 3, 2009) that there will be no structural or architectural changes made to the building. (2) The occupational city license for operating the steak house restaurant expired September 30, 2008. The restaurant left the premises in November 2008 and the actual lease expired at the end of January, 2009. The applicants have provided information and records that the hotel continued to provide meals to regular business customers. The restaurant function was completely closed in April, 2009. (3) The Planning Director in a communication to the hotel dated September 9, 2009 determined the following facts: 2 The restaurant business known as Bernie's Steakhouse did not renew their South Miami occupational license when it expired on September 30, 2008; although the restaurant area continued to be used to provide in -house meals and catering, the City must consider the restaurant to be vacant because there has been no licensed business operating since October, 2008. • The City's Land Development Code provides that a non - conforming use which remains vacant for a continuous period of six months can not be used again except in conformity with existing zoning district regulations ( Sec.20 -4.8 (A)(6)) ; The Land Development Code, however, does provide that the City Commission after receiving a recommendation from the Planning Board may permit the continuation of a non - conforming use after a public hearing (See.20- 6.1(A)(2)(e) and Sce.20- 6.1(3)(f). (4) It is also important to note that the zoning districts for the hotel, C -2 (1970's) and MO (1980 -2009) do not permit restaurants. In 1997 the Future Land Use Map category for this property was changed to Mixed Use Commercial Residential (Four Story), the same as in the downtown area. The underlying zoning district was never adjusted to a district which would have allowed restaurants. (5) There is sufficient evidence that the restaurant function in the hotel has been on -going for over 20 years and also did continue for several months after the formal business was abandoned. (6) A restaurant use is generally an accepted accessory use in a hotel and the continued restaurant use at this location is appropriate and will provide a needed service to the neighborhood and hotel clients. PLANNING BOARD ACTION The Planning Board at its October 13, 2009 meeting conducted a public hearing and at its meeting adopted a motion by a vote of 5 ayes 0 nays recommending approval of the proposed request to allow continuation of a non - conforming restaurant at 5959 SW 71 Street, with the condition that prior to receiving a restaurant occupational license for the new restaurant the applicant must pay to the City the cost of the occupational license for the past year plus any other out - standing fees or liens owed to the City. RECOMMENDATION It is recommended that the request to allow continuation of a non - conforming restaurant at 5959 SW 71 Street, with the condition as suggested by the Planning Board be approved. It is also recommended that a second condition be added which is similar to the standard condition included for special use approvals of restaurants. The second condition would read as follows: (2) If the proposed general restaurant is, in the future, determined by the Director of Planning, to be adversely affecting the health or safety of persons residing or working in the vicinity of the proposed use, to be detrimental to the public welfare or property or improvements in the neighborhood, or to be not in compliance with other applicable Code provisions, the continuation of the non - conforming status of the restaurant may be modified or revoked by the City Commission upon notification and public hearing. Attachments Draft Resolution Application Location Map Letter oflntent (2) Restaurant Site/Floor Plans Letter to Hotel from Planning Director 9 -9 -09 City Occupational License Record LDCSec.20- 4.8(0)(2); LDCSec.20- 6.7(2)(e); CDCSec. 20- 61(3)69 Planning Department Staff Report 10 -13 -09 Planning Board Minutes Excerpt 10 -13 -09 Public Notices TJV /SAY X9Comm ltemst2009 \113- 09Won•Confonning Rest Site 5959SW 71St CM Repor[.doo City of South Miami °Kq�� V,p IS g� ,tapm! §, Planning & Zoning Department ivAl 4-5 PB _T Meets & Bounds: City Hall, 6130 Sunset Drive, South Miami, Florida 3314tg4g6 � kl 1 Telephone: (305) 663 -6326; Fax: (305) 668 -7356 FM SEP 18 22.0(19 Application For Public Hearing Before Planning Board & Crt�, fl .l ai iOn Address of Subject Property: f- Lot(s) � > Block Subdivision �assW u�L ivAl 4-5 PB _T Meets & Bounds: AcNlz> Phone: So5'-- G(&`c3-C��Ga�? Applies :JN,e KOL-%Vk l .ZCZUK Representative: Organization: Address: Phone; Property Owner: CASAisCl-i- � `VO -/ 114 1111 Signature: % ate/ "C "_LSGYJ rtz�lSP tV C CrSTEizr41SS Cf1. Elrl rYt r1 �r c ?, Mailing Address: ISO 1SLl\tVP t�f? -- Phone: _ Architect/Engineer: Phone: AS THE APPLICANT, PLEASE INDICATE YOUR RELATIONSHIP TO THIS PROJECT: Tenant/Lessee _Owner Owner's Representative Contract to purchase _Option to purchase APPLICATION IS HEREBY MADE FOR THE FOLLOWING: SUBMITTED MATERIALS PLEASE CHECK THE APPROPRIATE ITEM: PLEASE CHECK ALL THAT APPLY: intent Amendment to LDC _Variance \! Letter of —Text _ Zoning Map Amendment _Special Use _ Justifications for change PUD Approval —,Special Exception _ Statement of hardship _ _ PUD Major Change X Other (VAOveAxst II) * ✓ Proof of ownership or letter from owner Power of attorney ~_ Briefly explain application and cite specific Code sections: ??e_pj IF N -}}jam, Contract to purchase '✓ Current survey (1 original sealed and AN IFt N 1 signed /1 reduced copy @ 11" x 17 ") ✓ 15 copies of Site Plan and Floor Plans ^ 2O 1 ��)CpeiC�a QtSiYL1 C 1 /S �1=f�� Stt4 "T1t 7-hf h Mt U{i }D DEV• C.a3�E 1 reduced copy @ 11" x 17" ✓ Affidavit- Receipts attesting to mail Section:20-6 ,[Subsection:` e-V Page #: l 3> Amended Date: notices sent Mailing labels (3 sets) and map Required Fee(s) The underrs�igned has read this completed application and represents that the information and all submitted materials are true and correct toRhe best of Te applicant's knowledge nd belief. /� J�s,A, O(.a uq `�. 1 � vq Applicant's Signatur e and title Print Name Date v Upon receipt, applications and all submitted materials will be reviewed for compliance with the Land Development Code and other applicable regulations. Applications found not in compliance will be rejected and returned to the applicant. OFFICE USE ONLY: Date Flied . Date of PB Hearing OC i JT7 Date of Commission Petition Required Petition Accepted �y K21 �61 QIf _ 6116 6111 Slit 1 6200 X91 6� 6615 6020 6843 6692 6 °W 6261 ]000 1150 1 6121 City of South Miami PB -09 -025 Continuation of Non- Conforming Restaurant 5959 SW 71st Street ...... .. ........ .... _ 0 300 600 900 Feet 6169 M $961 W l 1 �] 626, W67TH ST 4 4]OI N 69AB � � 7 5 8 W SW H / 9' °» 6146 w 6WI F 69Z] 5961 � /a/' 59� 6129 6101 y / A SW 70TH ST 5996 Mi9 'yM�� ]a0 ?h16.mahJ 1051 SW71SIST � rose 460 SUBJECT PROPERTY 6101 6168 V 0 h W i RI1 121D N 61J0 6011 W q 0 3 31f 0 51 6401 5'a `a75 X45 6250 � � 7 5 8 W SW H / 9' °» 6146 w 6WI F 69Z] 5961 � /a/' 59� 6129 6101 y / A SW 70TH ST 5996 Mi9 'yM�� ]a0 ?h16.mahJ 1051 SW71SIST � rose 460 SUBJECT PROPERTY 6101 SUNSET DRSW 72ND ST M n \ 5 Z N 1e00 %l R �q3 5905 5959 { 6926 040 I >331 MN nit U 6 YJN 690, SW 74TH ST ss76 SBJ9 � seer GIS Data by Miami -Dade County, 11/2007. Made by City of South Miami, tnglneenng 6 construction, vlzulzuua. 6168 V J. h W i RI1 121D N 61J0 W q 0 3 31f 0 51 N 6250 SUNSET DRSW 72ND ST M n \ 5 Z N 1e00 %l R �q3 5905 5959 { 6926 040 I >331 MN nit U 6 YJN 690, SW 74TH ST ss76 SBJ9 � seer GIS Data by Miami -Dade County, 11/2007. Made by City of South Miami, tnglneenng 6 construction, vlzulzuua. CASABELLA TOY 14, INC d.b.a. BEST MIAMI HOTEL September 3, 2009 Thomas J. Vageline Planning Director CITY OF SOUTH MIAMI PLANNING AND ZONING DEPARTMENT Re: Re opening Restaurant iocated at 5959 S.W. 71 "Street, Mlomi, Florida Dear Vageline: i represent the company that owns the property located at 5959 SW 71" Street Miami, Florida and I just found out that the zoning for this location has changed and we are no longer authorized to rent the ground floorspace for a restaurant. As you know, by the time the zoning changed we had the space leased to Bernie's Steak House and their expiration date was January 31, 2009 (see attached Lease Agreement). Unfortunately, they had to break their contract and left the space around November 2008, but we had an agreement with one of our best customers, Royal Caribbean, which included the meals for their crew members. At that moment we decided to continue providing the meals to them, while another restaurant leased the space, but because of the economic crisis we could not find a tenant for the space and had no other choice than to close the restaurant completely on April 2009 and lose the client. We are hereby requesting you to reconsider the zoning of our location due to the fact that the restaurant was not completely close for more than six months and there is no structural or architectural modification since then. Please keep in mind that restaurant services in the area will definitely benefit the neighbors, tourists and the city. In the event you take in consideration our request, this letter shall serve as authorization for Andrea Barszczuk and Ana Oliva to act on our behalf with anything relating to the special permit and obtaining any and all licenses necessaries to open the restaurant If you need further assistance do not hesitate to contact me at 305.571.5050 All cia1Carci SEP 04 2009 Director of Business Operations Best Miami Hotel FIU i'VIN NG$f'.NIt', , ND0114 �� 5959 B.W. 71 Street, Miami FL. 33143 • t F e t�r9 r r�} ��rc 4ia V W Y V 0,�r.,"+dY l.° i .3 iy <.vi rr;?^u t 0 Y) Y), Y t 4¢' W ✓F ""'.� p 3n.'PG , ° AI ,?' r> A M, 'x ;IA 6" E V t P aA Tt -- -- O-Vlci Ace. Qt ti' Y\ct 0car Df s�ti� Vc6e t". occe, non COn C)v ffl (N lose, of oLwoxe v�'0V1e�C�dOC E r6 �rintnn rCLv,00s o ski MaYO �® UV �� ) 0C�V1C�' O[JiN 0 U'0 E�� G,OVT VNC, G �, =m1ro.n er,� r tF HED-rE:L- S C9 S 9 SW 71-T STREET SOUTH MIAMI. FLORIDA E3 E C5 C3 E5 C3 Is W r7 7 E3 TF;l (. SOUTH MIAMI, -FLORIDA F E3 T` A Li R A N PLANNING '& ZONING DEPT. 6130 SUNSET DRIVE SOUTH MIAMI, FL 33143 . Tel: 305- 663 -6326 Fax: 305-666-4591 September 9, 2009 Ms. Alicia Garcia Director.of Business Operations Best Miami Hotel 5959 SW 71st Street South Miami, FL 33143 Re: Re- Opening of Restaurant 5959 SW 711' Street Dear'Ms. Garcia: South Miami F I o r l d a All - America 91ty zoos. This letter is in response to your September 3, 2009 letter requesting a determination on the continuation of a non - conforming use (restaurant) within the hotel located at 5959 SW 71" Street. The Planning and Zoning Department has made the' following determinations: 1) The property in question is zoned "MO" Medium Intensity Office Zoning District; 2) The "MO" zoning district does not permit restaurants; however the existing restaurant has been permitted to continue as a non - conforming use; 3) The restaurant business known as Bernie's Steakhouse did not renew their South Miami occupational license. when it expired on September 30, 2008; although the restaurant area continued to be used to provide in -house meals and catering, the City must consider the restaurant to be vacant because there has been no licensed business operating shice October, 2008. 4) The restaurant business must cease operations until approval is received as set forth below; PLANNING & ZONING DEPT. 6130 SUNSET DRIVE SOUTH MIAMI, FL 33143 Tel: 305- 663 -6326 Fax: 305-666-4591 5) The City's Land Development Code provides that a non - conforming use which remains vacant for a continuous period of six months can not be used again except in conformity with existing zoning district regulations (Sec.20 -4.8 (A)(6)) ; 6) The Land Development Code, however, does provide that the City Conunission after receiving a recommendation from the Planning Board may permit the continuation of a non - conforming use after a public hearing (See.20- 6- 1(A)(3)(b); 7) An applicant requesting that a non - conforming use be allowed to continue must first submit an application for a public hearing before the Planning Board (Sec. Sce.20 -4.8 (C)(2)); Attached is a special ,Planning Board public hearing application which must be submitted at least 30 days prior to the scheduled Planning Board meeting. There is no fee to file the application, however, an applicant must provide the property owner list, mailing labels, the advance notice letter, and other material as set forth in the attached application. If you have any questions please feel free to call me at 305- 663 -6326. Thomas J. Vageline, DirKtor Planning and Zoning Department City of South Miami C: Ajibola Balogan, City Manager Attachment: Special Public Hearing applicationform TJV /SAY X:1Let1ers\I,etter to Best Miami Hotel.doc -2- OL110101 CITY OF SOUTH MIAMI - OL 8/25/09 License Master Inquiry 17:58:45 Business,control nbr . : 1914 License number . . . . : 08 00005357 Last activity: Pin number . . . . . . : 1892 Business name & address Mailing address BERNIES STEAKHOUSE/KUSAR —HOSP. 5-9-5—T SW 71 STREET 5959 SW 71 STREET. SOUTH MIAMI FL 33143 SOUTH MIAMI FL 33143 Classification . . . . . : BPS BUSINESS AND PROFESSIONAL Exemption applied . . . . : License status, date . . : ACTIVE 12/03/08 Appl, issue date . . . 7/18/07 12/03/08 Expiration, valid thru 9/30/08 9/30/08 Gross receipts amount .00 Date renewal printed Date printed, reprinted Prior license . . . . . . 07 00005357 Municipal code reference Press Enter to continue. More... F3=Exit F5=Additi6nal charges F6=Charges F7=Miscellaneous information F9=Additional requirements F 10=Receipts F24=Moie keys OTHER REGULATIONS 20 -4.8 (6) No building or land, used for a nonconforming use, which remain vacant and unused for a continuous period of six (6) months; whether or not fixtures are removed, shall again be used except in conformity with the regulations of the district in which such building or land is located. For a multi -unit, multi -tenant land or building which constitutes a nonconforming use, vacancy of one (1) or more units shall have no effect on the rights of the property owner under this section, unless seventy-five (75) percent or more�of the gross floor area shall remain vacant and unused for more than six (6) months, after which period the vacant portion shall not again be used for a noncon. forming purpose and the remaining portions of the land or structure shall be brought into conforming use within three (3) years. (7) Any business which holds an occupational license, obtained in compliance with this Code and all other applicable city regulations, shall be deemed a permitted noncon- forming use and shall be allowed to operate at the license fee in effect immediately prior to the effective date of this Code and said fee, as may be amended. (B) Nonconformi ng Dimensions. (1) A structure which was erected in conformance with the applicable dimensional re- quirements in effect at the time of erection but which at a subsequent date fails to conform to applicable dimensional requirements due to a change in the zoning map, in the dimensional requirements table or in the text of this Code, may continue to be used for any use permitted in the district in which it is Iocated, subject to the require- ments of this section. (2) The following requirements shall apply to such structures: (a) Use of such structures shall be consistent with parking standards applicable on the first date of such use; and (b) In,the event of any remodeling or rebuilding, the remodeling or rebuilding shall not increase the extent of nonconformity with any dimensional requirement. (C) Existence of Nonconforming Ilse. (1) The director of building and zoning shall make an initial determination of the exist- ence of. a nonconforming use, based upon investigations and affidavits he determines to be necessary. ry nere unere is uncertainty in netermxnmg the existence oz a noncomormzng use, sucn uncertainty as to the existence of a nonconforming use shall be a question of fact to be considered by the planning board, after public notice and hearing in accordance with this Code and board rules. (3) The intermittent, temporary or illegal use of land or buildings shall not be sufficient to establish the existence of a nonconforming use. (4) The existence of a nonconforming use on part of a lot or tract shall not be construed to establish a nonconforming use on the entire lot or tract. 103 ADMINISTRATION AND ENFORCEMENT 20 -6.1 ARTICLE VI. ADMINISTRATION AND ENFORCEMENT 20 -6.1 Administrative entities. (A) City Commission. (1) Establishment, membership and organization of the city commission shall be in accordance with the City Charter and the Code of Ordinances of the city. (2) Powers and duties. (a) The city commission shall have all such powers and duties as are granted and conferred by state law, the Code of Ordinances of the city and this Code. (b) The city commission shall provide for the health, safety, convenience and general welfare of the citizens of South Miami throughh the regulations contained in this Code. (c) The city commission shall receive recommendations from the planning board and the environmental review and preservation board; and shall be guided by such boards. (d) The city commission shall act in compliance with and furtherance of the city's adopted Comprehensive Plan. The city commission may: i. Amend the provisions of the adopted Comprehensive Plan and'this Code; ii. Change. zoning district boundaries; iii. Authorize home occupational licenses; iv. Grant variances from the provisions of this Code; V. Permit the continuation_ of nonconforming uses; vi. Authorize special uses; and vii. Make Smal judgment on appeals of administrative decisions. power and the duty to hear and above matters in accordance with the provisions of this Code. (3) Procedures. (a) .. voting. . i. Except for those items listed in (ii) below, not less than three (3) affirmative . votes of the city commission shall be required to approve agenda items. ii. Four (4) affirmative votes of the city commission shall be, required to approve a change to the adopted Comprehensive Plan, a rezoning to.a less restrictive use, a rezoning when a ' properly written protest is 'filed, a variance, a special use, a home occupational license or a planned unit development. Supp: No. 10 133 20 -6.1 SOUTH MIAMI LAND DEVELOPMENT CODE -t I(s) The board shall review and make recommendations relating to the determination and continuance of nonconforming uses. 6, — w— u—laxx oY-w dau xuaxe recommendatons on an applications or t uses as permitted in this Code; such recommendations being made only after it has been determined that all established special requirements have been met and that the use will not create any incompatible relationships with other uses in the area in which it is to be located. (h) The board shall review and make recommendations on all applications for variances from the requirements of this Code for yard setbacks, lot size, lot coverage, building height, fences and walls, impervious coverage, off - street parking, open space, signs and landscaping. Recommendations for a variance shall be made based upon the criteria set forth in Section 20- 5.9(H). (4) Procedures. (a) Quorum and voting. i. A quorum shall be five (5) members. ii. A majority vote of the members present shall be required to pass upon any matter on which the board is required to act under this Code. iii. Recommendations on all items before the board shall be transmitted to the city commission within forty -five (45) calendar days of the time that the item. first appears on a regularly scheduled board agenda. If the board has not reached a decision on the item before it during said period, then the item shall be transmitted forthwith to the city commission with a "No Comment" recommendation. (b) The board shall keep a permanent record of all proceedings before it, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall immediately be filed in the office of the board and shall be a public record. (c) Meetings of the board shall be public and notification of such meetings shall be in accordance with city ordinances and state law. (d) All board actions shall be by motion. (e) All matters brought before the board shall be accompanied by a staff report which shall include basic facts. Supp. No, 12 136 To: Honorable Chair Bs Date: October 13, 2009 Planning Board Members ?� From: Thomas J. Vageline, Direct ya. Re: Continuation of Non - PIanning and Zoning Departme . Conforming Restaurant 5959 SW 71 Street PB -09 -025 Applicant: Anna Oliva and Andrea Barszczuk Location: 5959 SW 71" Street A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA DETERMINING PURSUANT TO LAND DEVELOPMENT CODE SECTION 204.8(C)(2) THE EXISTENCE OF A NON - CONFORMING RESTAURANT USE AT THE BEST MIAMI HOTEL LOCATED AT 5959 SW 719t STREET AND TO PERMIT THE CONTINUATION OF THE RESTAURANT USE AT SAME LOCATION; AND PROVIDING AN EFFECTIVE DATE. APPLICANT'S REOUEST: Pursuant to Section 20- 4.8(C)(2) of the Land Development Code (LDC) the applicants are requesting a finding that a former non - conforming general restaurant at the above referenced location be allowed to continue to operate. The location of the restaurant is on the ground floor of the Best Miami Hotel. The proposed restaurant is located in the "MO," Medium Density Office Zoning District which does not permit restaurants. The general restaurant use appears to have been abandoned for over a year thereby loosing the non - conforming status. The LDC provides that if there is uncertainty in determining the existence of a non - conforming use, the Planning Board after a public hearing may consider making a recommendation on the subject. (LDC Section 204.8(C)(2). The City Commission after a public hearing and receipt of a recommendation from the Planning Board may permit the continuation of the nonconforming'use (LDC Section 20-6. 1 (A)(2)(c). STAFF ANALYSIS (1) The applicants Anna Oliva and Andrea Barszczuk are considering re- opening a restaurant in the space previously occupied by the former Bernie's Steak House in the Best Miami Hotel. The new restaurant will be called Pikkolo Mondo The applicants and the Director of Business Operations for the hotel have both advised in separate attached letters (September 3, 2009) that there will be no, structural or architectural changes made to the building. (2) The occupational city license for operating the steak house restaurant expired September 30, 2008. The restaurant left the premises in November 2008 and the actual lease expired at the end of January, 2009. The applicants have provided information and records that the hotel continued to provide meals to regular business customers. The restaurant function was completely closed in April, 2009. 5959 SW 71Street Non Conforming use approval October 13, 2009 Page 2 of (3) The Planning Director in a communication to the hotel dated September 9, 2009 determined the following facts: The restaurant business known as Bernie's Steakhouse did not renew their South Miami occupational license when it expired on September 30, 2008; although the restaurant area continued to be used to provide in -house meals and catering, the City must consider the restaurant to be vacant because there has been no licensed business operating since October, 2008. P The City's Land Development Code provides that a non - conforming use which remains vacant for a continuous period of six months can not be used again except in conformity with existing zoning district regulations ( Sec204:8 (A)(6)) ; 6 The Land Development Code, however, does provide that the City Commission after receiving a recommendation from the Planning Board may permit the continuation of a non - conforming use after a public hearing (Sec20- 6.1(A)(2)(e) and Sec,20- 6.1(3)(f). (4) It is also important to note that the zoning districts for the hotel, C -2 (1970's) and MO (1980 -2009) do not permit restaurants. In 1997 the Future Land Use Map category for this property was changed to Mixed Use Commercial Residential (Four Story), the same as in the downtown area. The underlying zoning district was never adjusted to a district which would have allowed restaurants. (5) There is sufficient evidence that the restaurant function in the hotel has been on -going for over 20 years and also did continue for several months after the formal business was abandoned. (6) A restaurant use is generally an accepted accessory use in a hotel and the continued restaurant use at this location is appropriate and will provide a needed service to the neighborhood and hotel clients. RECOMMENDATION It is recornmended that the continuation of the non - conforming restaurant use at the Best Miami Hotel be approved. Attachments: Application Location Map Letter of intent (2) . Restaurant Site /rloor Plans Letter to Hotel from Planning Director 9 -9 -09 City Occupational License Record LDC Sec.20- 4.8(C)(2) LDC Sec.20- 6.1(2)(e) LDC Sec. 20- 6.1(3)(f) Copies of Public notices T7V /SAY X:1PBlPB Agendas Staff Repom\2009 Agendas Staff Reports \20- 13 -09TB- 09.025 Non - Conforming Rest 5959 SW 71 Stndoo CITY OF SOUTH MIAMI PLANNING BOARD DRAFT Action Summary Minutes Tuesday, October 13, 2009 City Commission Chambers 7:30 F.M. EXCERPT I. Call to Order and the Pledge of Allegiance to the Flag Action: The meeting was called to order at 7:32 p.m. The Pledge of Allegiance was recited in unison. H. Roll Call Action: Chairperson, Mr. Morton requested a roll call. Board members present constituting a quorum.: Present: Mr. Cruz, Mr. Farfan, Mr, Morton, Ms. Yates, and Mr. Whitman. Absent: Mr. Comendeiro and Ms. Young. City staff present: Thomas J.' Vageline (Planning and Zoning Director), Sanford A. Youkilis (Planning Consultant), Maria Stout -Tate (Administrative Assistant 11), Laurence Feingold, City Attorney. IV. Planning Board Applications/Public Hearings. PB -09 -025 Applicant: Anna Oliva and Andrea Barszczulc Location: 5959 SW 71st Street A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA DETERMINING PURSUANT TO LAND DEVELOPMENT CODE SECTION 20- 4.8(C)(2) THE EXISTENCE OF A NON- CONFORMING RESTAURANT USE AT. THE BEST MIAMI HOTEL LOCATED AT 5959 SW 71" STREET AND TO PERMIT THE CONTINUATION OF THE RESTAURANT USE AT SAME, LOCATION; AND PROVIDING AN EFFECTIVE DATE. Mr. Morton read into the record. Discussion: Mr. Youkilis stated that pursuant to Section 20- 4.8(C) (2) of the Land Development Code (LDC) the applicants are requesting a finding that a former non <conforming general restaurant at the above referenced location be allowed to continue to operate: The location of the restaurant is on the ground floor of the Best Miami Hotel. The proposed restaurant is located in Planning Board Meeting October 13, 2009 Excerpt Page 2 of .4 the 'W," Medium Density Office Zoning District which does not permit restaurants. The general restaurant use appears to have been abandoned for over a year thereby loosing the non- conforming, status. The LDC provides that if there is uncertainty in determining the existence of a non - conforming use, the Planning Board after a public hearing may consider making a recommendation on the subject. (LDC Section 20- 4.8(C)(2). The City Commission after a public hearing and receipt of a recommendation from the Planning Board may permit the continuation of the nonconforming use (LDC Section 20- 6.1(A)(2)(e). Mr. Youkilis went on to express that the applicants, Anna Oliva and Andrea Barszezuk, are considering re- opening a restaurant in the space previously occupied by the former Bernie's Steak House in the Best Miami Hotel. The new restaurant will be called Pikkolo Mondo. The applicants and the Director of Business Operations for the hotel have both advised that there will be no structural or architectural changes made to the building. The occupational city license for operating the steal: house restaurant expired September 30, 2008. The restaurant left the premises in November 2008 and the actual lease expired at the end of January, 2009. The applicants have provided information and records that the hotel continued to provide meals to regular business customers. The restaurant function was completely closed in April, 2009. The Planning Director in a communication to the hotel dated September 9, 2009 determined the following facts: The restaurant business known as Bernie's Steakhouse did not renew their South Miami occupational license when it expired on September 30, 2008; although the restaurant area continued to be used to provide in -house meals and catering, the City must consider the restaurant to be vacant because there has been no licensed business operating since October, 2008. ® The City's Land. Development Code provides that a non - conforming use which remains vacant for a continuous period of six months can not be used again except in conformity with existing zoning district regulations (See. 20 -4.8 (A)(6)). The Land Development Code, however, does provide that the City Commission after receiving a recommendation from the Planning Board may permit the continuation of a non - conforming use after a public hearing (Sec. 20- 6.1(A)(2)(e) and Sec. 20- 6.1(3)(f). Mr. Youkilis said that it is also important to note that the zoning districts for the hotel, C -2 (1970's) and MO (1980 -2009) do not permit restaurants. In 1997 the Future Land Use Map category for this property was changed to Mixed Use Commercial Residential (Four Story), the same as in the downtown area. The underlying zoning district was never adjusted to a district which would have allowed restaurants. There is sufficient evidence that the restaurant function in the hotel has been on -going for over 20 years and also did continue for. several months after the formal business was abandoned. A restaurant use is generally an accepted accessory use in a hotel and the continued restaurant use at this location is appropriate and will provide a needed service to the neighborhood and hotel clients. Mr. Youkilis stated that staff recommends that the continuation of the non - conforming restaurant use at the Best Miami Hotel be approved. Planning Board Meeting October 13, 2009 Excerpt Page 3 of 4 Mr. Youkilis had a PowerPoint presentation which showed the area and where the restaurant is located. Mr. Morton asked how were they operating without a license for a year. Did the City not know that the license had lapsed? Mr. Youkilis stated that they were not feeding the public just their own guests at the hotel. You would have to ask the applicant about the "lapsed" license issue. Mr. Morton stated that he was concerned that no. one verifies when a license has lapsed. He also asked what the license fee was. Mr. Youkilis looked for that information but it was not available in the file. Mr. Whitman asked how many spaces were available for parking and would it be an issue. He inquired due to the fact that there was no parking analysis attached to the report. Mr. Youkilis stated that this application was for continuing a non - conforming status so parking would not be part of the application. Mr. Whitman said that he felt that it would not be a non - conforming status but a new approval issue. Mr. Cruz asked how long has there been a restaurant in the Hotel? Mr. Youkilis stated about 20 years. Mr. Morton opened the public hearing. Opened /Closed Public Bearing Speaker: NAME: ADDRESS SUPPORT /OPPOSE Francisco Martinez Celedo 180 Island Drive Key Biscayne, Florida N/A Mr. Celedo stated that he owned the hotel and he then told the Planning Board the past history of the restaurant and the issues as to why Bernie's Restaurant was closed. Mr. Celedo stated that the hotel needs a restaurant so that the business would thrive in the area and also help out with the revenues of the hotel. Mr. Cruz asked what type of food would be served. Mr. Celedo answered European, Italian and American. Mr. Cruz asked where would people park. Mr. Celedo stated that Yhcy would park on the level of where the restaurant is located: Speaker: NAME: ADDRESS SUPPORT /OPPOSE Ana Oliva 185 NW 13TH Avenue Miami, Florida N/A Ms. Oliva answered Mr. Cruz's question about parking stating that there is enough parking for all guests and restaurant participants. She also stated that at this time business is slow so there would be no issue. She also answered Mr. Morton's question about the fees stating that fees are paid through the Hotel and Restaurant License Department and that she was informed that if the Planning Board of South Miami gives their permission, then she can. move forward. Mr. Whitman inquired as to what were the circumstances of the closing of Bernie's Steak House. Ms. Oliva stated that he filed for bankruptcy. Mr. Whitman asked about how many parking spaces the hotel had. Ms. Oliva stated that they have approximately 120 spaces. She Planning Board Meeting October 13, 2009 Excerpt Page 4 of 4 also said that there was valet parking on the 1St and 2nd floor that would be considered additional parking. Mr. Cruz asked how many square feet the restaurant has. Ms. Oliva stated approximately 4,000. square feet. Mr. Youkilis stated that the square footage would translate into 40 parking spaces required. Ms. Yates asked what the percentage of occupancy in the hotel was for this year. Mr. Celedo stated that it had dropped off tremendously and that without a restaurant it had caused more of an issue. Ms. Oliva interjected by saying that a lot of their clientele are folks who come in from out of the country and are here because they have a relative or friend in the hospital. Without a restaurant they find somewhere else to stay because of the lack of having some place to eat in the hotel. Also, people who are traveling on cruise lines, if they get sick, they ate sent to Larkin or South Miami Hospital. Because the hotel is so close to the hospitals, they would stay in the area. But ever since there hasn't been a restaurant, then they have gone some place else. Mr. Morton closed the public hearing. Mr. Morton opened discussion by the board. There was no discussion. Mr. Morton suggested that the occupational license dues should be paid to the City from the last time payment was collected: Motion: Mr. Cruz made a motion to grant PB -09 -025 with the modification that all licenses, fees and liens; owed to the City of South Miami must be paid prior to the occupational license being provided to the applicant. Seconded by Mr. Farfan. 5 ayes 0 nays Motion was adopted and passed. TJV /SAY x:\Comm I=02009 \1 1- 3 -09W8 Minutes Excerpt 10- 13- 09.doe MIAMI DAILY BUSINESS REVIEW Published Dally except Saturday, Sunday and Legal Holidays Miami, Miami -Dade County, Florida STATE OF FLORIDA COUNTY OF MIAMI -DADE: Before the undersigned authority personally appeared V. PEREZ, who on oath says that he or she Is the LEGAL CLERK, Legal Notices of the Miami Daily Business Review f /Wa Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami -Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement of Notice in the matter of CITY OF SOUTH MIAMI PUBLIC HEARING - NOVEMBER 3, 2009. in the XXXX Court, was published In said newspaper in the issues of 10/23/2009 Affiantfurther says that the said Miami Daily 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 Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Miami -Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he or she has neither paid nor promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this advertisem I for publication in the said newspaper. � Sworn to a 23 day of OCTOBER - -• , XD 2009 (SEAL) V. PEREZ personally known to me ` 'oflytik;tr �LETICIA DE CASSIA, FREEMAN IlAy COMMISSION ft D0710253 ''k. n.a rXPIRE8 Augus, ?9,201'1 (40;)Jig ei53 �, P�wltlpDlotarySemSC COwrti ceousg " F Y r .. iorzrvw CITY OF SOUTH MIAMI NOTICE OF PUBLIC.HWARING. Dllowing 1temr(s)R;: OF THE MAYOR AND pTY:,COMM(SSION - ..SOUTH MIA t.1 ; FL0R,1DA,RELATING TO ''O THA ; P ECOb,eY J STATE; OftOVIDiNG.FOR SEVERA91 AN EFFECTIVE DATE. " A RESOLUTION OF THE MAYOR AP OF THE CITY OF SOUTH MIAMI, FL PURSUANT TO LANp bEVELOPM. 20= 4.8(0)(2), THE. EXISTENCE,OF, ) RESTAURANT USE AT THE BEST MI AT 5959 SW 71st STRE&AND TID RE TiON,OF THE RESTAURANT.' USE, pixavrnimia am kcccrnvc rierc'-.- toN AND.TO. FILE THE )A DEPARTMENT OF ITY,'CONFLICT, AND ALL interested parties are Invited to attendapd will be heard:. For.further information, please contact the C{+- ,Olerk'a'Office a): 1 805 - 66.3.6340, ManaM Menendez,CMC C!h Ole k . pursuant to Florida Statutes 288.0105, the, �ity hereby advises the . ,public that if a person decides to appeal any decision made by this . Board, Agency or Commission with respect to any matter considered at :its meeting or hearing, he or she wilt need a record of the proceedings," and that for such purpose, affected person may need to ensure that a Verbatim record of the pr6ceeding9'IS rin6de:w616h record Ipcludea the . testimony and evidence upon which the appeal is to be based. :10123. ;.. 'I.: ;.:, .. ar- "09-3- 213/-13333281 Ad Number: 841302402 Client Name: f? p'.F N¢ay �c on 3,av»'9 S Insertion Number: 841302402 Advertiser. CITY OF SOUTH MIAMI Size: 2X9.0 Section/Page(Lone: NBRS GableslGS40 /Dade Publication Date: 40/2512009 1 Color Type: B &W Description: YDic EShadt(m Is provided as aOnni.aW. Mdancn dUq,h, ad epp,aInd 1.7h. 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