Res No 075-21-15695RESOLUTION NO.075-21-15695
A Resolution pursuant to the City of South Miami Land Development Code Section 20-
3.3(C)(5) accepting the Planning and Zoning Director's determination that a Skilled
Nursing Facility is similar in nature to a Convalescent Home and shall be permitted by -
right in the same Zoning Districts as a Convalescent Home.
WHEREAS, the City of South Miami Land Development Code (LDC) Section 20-3.3(D) sets
forth land uses permitted by right or as a special use in each zoning district; and
WHEREAS, uses not listed as permitted by right or as a special use are not allowed in such
district unless otherwise expressly permitted in accordance with Section 20-3.3(C)(5); and
WHEREAS, LDC Section 20-3.3(C)(5) New or unlisted uses of similar nature, provides as
follows:
(5) New or unlisted uses of similar nature.
(a) The director of building/zoning and community development shall consider the
nature of the proposed use, its compatibility with other uses permitted in the
various districts and determine the zoning district or districts within which the use
should be permitted, if any.
(b) The city manager shall transmit the findings and recommendations of the director
of building/zoning and community development for the classification proposed for
any new or unlisted use to the city commission for review at its next regularly
scheduled meeting.
(c) The city commission shall approve the recommendations of the director or make
such determination concerning the classification of the new or unlisted use as it
determines appropriate.
and;
WHEREAS, LDC Section 20-2.1(e) states that words not defined within the City Code shall
be construed to have their common, ordinary meanings unless the context clearly otherwise
requires; and
WHEREAS, Convalescent Home is a permitted use in the LO, MO, SR, TODD (MU-4), TODD
(MU-5), TODD (MU-6), and TODD (MU-M) zoning districts but is not defined in Section 20-2.3;
and
WHEREAS, convalescent is defined as a person recovering from an illness or operation;
and
WHEREAS, convalescent home is generally described as an institution for the short-term
care of individuals who are recovering from an illness or injury, but do not need hospitalization;
and
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Res. No. 075-21-15695
WHEREAS, the non-residential, medical orientation of convalescent home is reinforced in
Chapter 19 of the City's Code of Ordinances, which defines a Health care facility as "any hospital,
convalescent facility, walk-in clinic, doctor's office, mental health care facility and any other
short- or long-term health care facility..."; and
WHEREAS, Ines Marrero-Priegues, attorney for Waterstone Capital ("Waterstone"), has
requested a determination pursuant to Sec. 20-3.3(C)(5) that Waterstone's proposed skilled
nursing facility to be located at 7045 SW 61" Avenue is a Convalescent Home; and
WHEREAS, Waterstone's facility will be classified as a "nursing home" by the State of
Florida Agency for Health Care Administration and will meet the federal definition of "Skilled
Nursing Facility" (SNF); and
WHEREAS, a SNF is defined by the Code of Federal Regulations as "an institution...that is
primarily engaged in providing skilled nursing care and related services for residents who require
medical care or nursing care; or rehabilitation services for the rehabilitation of injured, disabled,
or sick persons..."; and
WHEREAS, a SNF provides 24-hour care to patients who are admitted upon obtaining a
physician's order but it is not a residential facility; and
WHEREAS, pursuant to Sec. 20-3.3(C)(5), the Planning and Zoning Director has reviewed
the request, considered the nature of the proposed use, its compatibility with other uses
permitted in the various districts and determined that a Skilled Nursing Facility as defined by the
Code of Federal Regulations, and determined that such use should be permitted by -right in the
LO, MO, SR, and TODD MU-4, MU-5, and MU-6 zoning districts; and
WHEREAS, the parking standard for convalescent home, one (1) space per five hundred
square feet of gross floor area, shall be the standard applied to SNF; and
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSIONERS OF THE
CITY OF SOUTH MIAMI, FLORIDA:
Section 1. The foregoing recitals are hereby ratified and confirmed as being true and they
are incorporated into this resolution by reference as if set forth in full herein.
Section 2. The determination of the Planning and Zoning Director that a Skilled Nursing
Facility is similar in nature to a convalescent home and should be permitted by -right in the LO,
MO, SR, and TODD MU-4, MU-5, and MU-6 zoning districts is hereby accepted pursuantto Section
20-3.3(C)(5) of the Land Development Code. Further, the parking standard of one (1) space per
five hundred square feet of gross floor area shall be applied to SNF.
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Res No. 075-21-15695
Section 3. Corrections. Conforming language or technical scrivener -type corrections may
be made by the City Attorney for any conforming amendments to be incorporated into the final
resolution for signature.
Section 4. Severability. If any section clause, sentence, or phrase of this resolution is for
any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding will
not affect the validity of the remaining portions of this resolution.
Section S. Effective Date. This resolution will become effective immediately upon
enactment.
PASSED AND ADOPTED THIS 611 day of July, 2021.
ATTEST:
APPROVED:
CITY CEIERK MAYOR.
READ AND APPROVED AS TO FORM, COMMISSION VOTE: 5-0
LANGUAGE, GA ITY, AND Mayor Philips: Yea
EX O Commissioner Corey: Yea
Commissioner Gil: Yea
Commissioner Harris: Yea
Commissioner Liebman: Yea
I TTORNEY
Page 3 of 3
Agenda Item No:5.
City Commission Agenda Item Report
Meeting Date: July 6, 2021
Submitted by: Jane Tompkins
Submitting Department: Planning & Zoning Department
Item Type: Resolution
Agenda Section:
Subject:
A Resolution pursuant to the City of South Miami Land Development Code Section 20-3.3(C)(5) accepting the
Planning and Zoning Director's determination that a Skilled Nursing Facility is similar in nature to a
Convalescent Home and shall be permitted by -right in the same Zoning Districts as a Convalescent Home. 3/5
(City Manager)
Suggested Action:
Approval
Attachments:
Cover memo resolution re skilled nursing facility.docx
Resolution_re SkiIIed_Nursing_FaciIity.docx
Letter to Planning Director re Waterstone D(84560953.1).pdf
CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
South Miami
THE CITY OF PLEASANT LIVING INTER -OFFICE MEMORANDUM
To: Honorable Mayor and Members of the City Commission
VIA: Shari Karnali, City Manager
FROM: Jane K. Tompkins, AICP, Planning Director
DATE: July 6, 2021
SUBJECT:
A Resolution pursuant to the City of South Miami Land Development Code Section 20-
3.3(C)(S) accepting the Planning and Zoning Director's determination that a Skilled Nursing
Facility is similar in nature to a Convalescent Home and shall be permitted by -right in the
same Zoning Districts as a Convalescent Home.
BACKGROUND:
Waterstone Capitol ("Waterstone") is proposing to build a 180-bed Skilled Nursing Facility at
7040 SW 615L Avenue, which has a zoning designation of Transit Oriented Development District
Mixed Use 5 (TODD (MU-5)). Skilled nursing facilities are not listed in the Permitted use
schedule of the Land Development Code (LDC) (Sec. 20-3.3(D)). Uses not listed in the schedule
are not allowed in South Miami, unless otherwise permitted by paragraph (5):
(5) New or unlisted uses of similar nature.
(a) The director of building/zoning and community development shall consider the nature of the
proposed use, its compatibility with other uses permitted in the various districts and determine
the zoning district or districts within which the use should be permitted, if any.
(b) The city manager shall transmit the findings and recommendations of the director of
building/zoning and community development for the classification proposed for any new or
unlisted use to the city commission for review at its next regularly scheduled meeting.
(c) The city commission shall approve the recommendations of the director or make such
determination concerning the classification of the new or unlisted use as it determines
appropriate.
A Convalescent Home is a permitted use in several districts including TODD (MU-5); however,
the term is not defined and is generally considered obsolete in the health care industry.
REQUEST:
Attorney Ines Marrero-Priegues, on behalf of Waterstone, requests a determination pursuant
to Section 20-3.3(C)(5) that a Skilled Nursing Facility is similar in nature to a Convalescent
Home.
ANALYSIS:
K
Resolution re Skilled Nursing Facilities
July 6, 2021
Page 2 of 2
LDC Section 20-2.1(e) states that words not defined within the City Code shall be construed to
have their common, ordinary meanings unless the context clearly otherwise requires. A
convalescent is defined as a person recovering from an illness or operation; and a convalescent
home is generally described as an institution for the short-term care of individuals who are
recovering from an illness or injury, but do not need hospitalization.
Waterstone's proposed facility will be classified as a "nursing home" by the State of Florida
Agency for Health Care Administration and will meet the federal definition of "Skilled Nursing
Facility" (SNF), which reads as follows:
"an institution... that is primarily engaged in providing skilled nursing
care and related services for residents who require medical care or
nursing care; or rehabilitation services for the rehabilitation of injured,
disabled, or sick persons..."
A SNF provides care to patients who are admitted upon obtaining a physician's
order; it is not a residential facility to which patients self -admit.
Based on the federal definition of SNF and the common definitions of convalescent
and convalescent home, Staff believes that the two are similar in nature. Further, an
SNF is compatible with the uses permitted in TODD (MU-5) and the other zoning
districts that allow convalescent homes.
PLANNING BOARD RECOMMENDATION:
Not applicable; the Planning Board does not review this type of request.
STAFF RECOMMENDATION:
Staff recommends approval of the resolution.
Attachments:
• Draft Resolution
• Letter from Ines Marrero-Priegues dated May 21, 2021
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Holland & Knight
701 Brickell Avenue, Suite 3300 1 Miami, FL 33131 1 T
305.374.8500 1 F 305.789.7799
Ines Marrero-Priegues
+1 305-789-7776
ines.marrero@hkiaw.com
Holland & Knight LLP ( www.hklaw.com
May 21, 2021
Via Email and Hand Delivery
Ms. Jane Tompkins
Planning Director
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Re: Skilled Nursing Facility Use
Request for interpretation per section 20.3.3.c.5, Land Development Code.
Dear Ms. Tompkins,
On behalf of our client, Waterstone Capital ("Waterstone"), we respectfully request your
determination pursuant to Section 20.3.3.c.5 of the City of South Miami Land Development
Regulations ("LDR's"), that Waterstone's proposed skilled nursing facility is a convalescent home,
a use permitted by right in various zoning districts, including TODD MU-5, per Section 20.3-3(D)
of the LDR's.
Convalescent Home Defined
The term convalescent home is not a defined term in the City's Land Development Code.
However, as supported by the various definitions below, a convalescent home is generally defined
as a place of medical care.
• The Merriam -Webster online dictionary, a convalescent home is "an institution for the care
of convalescing patients." The Merriam -Webster online dictionary further defines
convalescing as "to recover health and strength gradually after sickness or weakness."
• www.yourdictionary.com, defines the term as "[a] place where people stay when they need
care from doctor and nurses, but are not sick enough to be in a hospital."
• www.Idoceonline.com/dictionM, defines "convalescent" as "a person who is recovering
from an illness or undergoing a period of rest and recovery... A nursing home where
people go to rehabilitate after a stroke or after an injury in an example of a home that would
be described as a convalescent home."
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Ms. Jane Tompkins
Planning Director
Page 2
• www.lawinsider.com provides an insightful summary of what is a convalescent home and
how the terms convalescent home and nursing home are used interchangeably.
"Convalescent home or 'nursing home' means an establishment that provides full-time
convalescent or chronic care or both for three or more individuals who are not related by
blood or marriage to the operator or who by reason of chronic illness or infirmity, are
unable to care for themselves. No care for the acutely ill, or surgical or obstetrical services
shall be provided in such a home; a hospital or sanitarium shall not be construed to be
included in this definition. Also, convalescent home means, a nursing home, a rest home,
a home for the aged, recuperating, chronically ill, or incurable persons, in which two (2) or
more persons not of the immediate family are received, kept, or provided with food and
shelter or care for compensation, but not including hospitals, clinics, or similar institutions
devoted primarily to the diagnosis or treatment of disease or injury. (See,
https://www.lawinsider.com/dictionary/convalescent-home).
All of these definitions confirm that a convalescent home is a place of health and medical care for
infirm patients. The purpose of this letter is to seek your determination that the skilled nursing
facility proposed by Waterstone, as detailed below, is a convalescent home because it is a facility
that provides medical/health care for infirm patients.
Background
Waterstone plans the construction and operation of a 180 bed skilled nursing facility pursuant to a
Certificate of Need ("CON") issued by the State of Florida Agency for Health Care Administration
("AHCA"). The CON program, regulated by AHCA, requires that certain health care providers
obtain state approval before offering certain services. Specifically, a CON is required for the
operation of hospices, skilled nursing facilities, intermediate care facilities for the
developmentally disabled and the establishment of Class II, III and IV hospitals. The CON does
not regulate home health services or assisted living facilities. The services and operational
specifics of the facility will comply with the federal regulations for skilled nursing facilities.
Below is a summary of those regulations which will govern the operations of the proposed facility
and guarantee that the scope of services will remain as set forth herein.
State and Federal Regulations of Skilled Nursing Facilities
Pursuant to the Florida Administrative Code, the Certificate of Need for the Waterstone facility
is classified as a "nursing home." "Nursing home" means a health care facility licensed under
Chapter 400, Part II, F.S (See, Section 59C-1.002 (26), Definitions, Florida Administrative Code),
which, in turn, regulates "any institution, building, residence, private home, or other place,
whether operated for profit or not, including a place operated by a county or municipality, which
undertakes through its ownership or management to provide for a period exceeding_24-hour
nursing care, personal care, or custodial care for three or more persons not related to the owner or
manager by blood or marriage, who by reason of illness, physical infirmity, or advanced age
require such services, but does not include any place providing care and treatment primarily for
the acutely ill. A facility offering services for fewer than three persons is within the meaning of
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Ms. Jane Tompkins
Planning Director
Page 3
this definition if it holds itself out to the public to be an establishment which regularly provides
such services." Section 400.021 (7), Florida Statutes.
In the case of the Waterstone Certificate of Need, the AHCA license will permit the operation of
a 180 bed nursing home, that will, in turn, meet the federal definition of Skilled Nursing Facility.
The term "Skilled Nursing Facility" is established and defined by the Code of Federal Regulations.
See, 42 U.S. Code Section 1396r. A Skilled Nursing Facility ("SNF") is defined as "an institution.
... that is primarily engaged in providing skilled nursing care and related services for residents
who require medical or nursing care; or rehabilitation services for the rehabilitation of injured,
disabled, or sick persons... "
A skilled nursing facility provides 24 hour care to patients who are admitted upon obtaining a
physician's order. Patients receive either short or long term care. In addition, SNF's also provide
physical therapy, speech therapy, occupational therapy, and life -skills therapy. A skilled nursing
facility is a category of nursing home but it is not a residential facility. A SNF is a specialized
nursing facility for infirmed patients requiring medical rehabilitation or convalescence. Patients
do not freely self -admit themselves to a SNF. All patients need an up-to-date physician's order
confirming that the patient is eligible for and in need of skilled nursing care and the physician's
order must be renewed at least once a year thereafter. At its core, a SNF is primarily a medical
care facility.
It is important to underscore what a Skilled Nursing Facility is not. A SNF is not an adult
congregate living facility. An AHCA Certificate of Need is not required for an adult congregate
living facility. As stated earlier, patients cannot freely admit themselves to a SNF. More
discussion of this pivotal distinction is set forth below.
The South Miami Land Development Regulations and City Code
The term "convalescent home" is not defined in the Land Development Regulations. However,
the term is used in Section 19-1(e) of the City's Code of Ordinances, which establishes that a
health care facility is defined as "any hospital, convalescent facility, walk-in clinic, doctor's office,
mental health care facility and any other short- or long-term health care facility located within the
City of South Miami (emphasis added).". While convalescent homes are not specifically defined,
Section 20-2.1(e) of the City Code states that words not defined within the City Code shall be
construed to have their common, ordinary meanings unless the context clearly otherwise requires.
Common, ordinary definitions of the term convalescent and convalescent facility are included in
page one of this letter. The term is widely and commonly understood to be a use where medical
care is provided. This same connotation is recognized in Section 19-1(e) of the City Code, where
the term "convalescent facility," is in the same category as other institutions that provide medical
and/or health care.
The determination that a SNF is a convalescent home is consistent and compatible with its
permissibility, by right, in the TODD MU-5 District. The purpose of the TODD-MU-5 District
is to maximize and support the presence of a mass transit center located within walking distance
of the boundaries of the district. The TODD districts are intended to provide for the development
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Ms. Jane Tompkins
Planning Director
Page 4
of office, retail, residential uses and related services in multi -story and mixed -use project and that
characteristic of transit oriented developments. The SNF is compatible with surrounding medical
uses in the area. Proximity to mass transit makes the facility accessible to administrative and
nursing staff as well as visiting family members of facility patients.
The remaining issue is whether the proposed SNF is an adult congregate living facility as that use
is defined by the City's Land Development Regulations. Article II of the Land Development Code
provides that:
Adult congregate living facility. Shall mean any building or buildings, section of a building
or distinct part of a building, residence, private home, boarding home, home for the aged
or other place, whether operated for profit or not, which undertakes through its ownership
or management to provide for a period exceeding twent7�-/our (24) hours, housing food
service and one or more personal services for four (4) or more adults, not related to the
owner or administrator by blood or marriage, who require such services and to provide
limited nursing services, when specifically licensed to do so pursuant to Florida Statutes.
A facility offering personal services or limited nursing services for fewer than four (4)
adults is within the meaning of this definition if it formally or informally advertises to or
solicits the public for residents or referrals and holds itself out to the public to be an
establishment which regularly provides such services. (emphasis added).
The key distinction is the nature of the facility (residential vs. non-residential) and the level of
medical care (limited nursing service vs. skilled nursing care). An ACLF is primarily a residential
facility where limited nursing services are provided. An SNF is not a residential facility and the
primary purpose is to provide nursing care. Nursing care is consistent with the care required for
convalescence.
Based on the foregoing we respectfully request your consideration and determination that the
proposed skilled nursing facility, as set forth in this letter, is a convalescent home as contemplated
by the City's Land Development Regulations, and as permitted, by right, in the TODD-MU-5
District.
Please contact me if you have any questions or need additional information.
Sincerely,
HOLLAND & KNIGHT LLP
Ines Marrero-Priegues
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Ms. Jane Tompkins
Planning Director
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Cc: Ms. Shari Kamali, ICMA-CM, City Manager
Mr. Mauricio Bello, Waterstone Capital
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