11-03-09 Item 31South Miami
AD- America City
1
CITY OF SOUTH MIAMI
INCORPORATED
OFFICE OF THE CITY MANAGER
INTER- OFFICE MEMORANDUM 2001
To:
Via:
From:
Date:
The Honorable Mayor Feliu and Members o the Cit Commission
Roger M. Carlton, Acting City Manager
Thomas J. Vageline, Director
Planning and Zoning Department
November 3, 2009
ITEM No.
03l
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 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.
(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 (Sec.20- 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.
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.
3
Attachments
Draft Resolution
Application
Location Map
Letter of Intent (2)
Restaurant Site /Floor Plans
Letter to Hotel from Planning Director 9 -9 -09
City Occupational License Record
LDC Sec.20- 4.8(C)(2); LDC Sec.20- 61(2)(e); LDC Sec. 20- 61(3)69
Planning Department Staff Report 10 -13 -09
Planning Board Minutes Excerpt 10 -13 -09
Public Notices
TJV /SAY
XAComm Items\2009 \11- 3- 09\Non- Conforming Rest Site 5959SW 71St CM Report.doe
1 RESOLUTION NO.
2
3 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH
4 MIAMI, FLORIDA DETERMINING PURSUANT TO LAND DEVELOPMENT CODE
5 SECTION 20- 4.8(C)(2) THE EXISTENCE OF A NON - CONFORMING RESTAURANT USE
6 AT THE BEST MIAMI HOTEL LOCATED AT 5959 SW 71s' STREET AND TO PERMIT
7 THE CONTINUATION OF THE RESTAURANT USE AT SAME LOCATION; AND
8 PROVIDING AN EFFECTIVE DATE.
9
10 WHEREAS, applicants Anna Oliva and Andrea Barszczuk are considering re-
11 opening a restaurant in the space previously occupied by the former Bernie's Steak House in the
12 Best Miami Hotel; and
13
14 WHEREAS, the location of that restaurant is on the ground floor of the Best Miami
15 Hotel, which is located in the "MO," Medium Density Office Zoning District which does not
16 permit restaurants; and
17
18 WHEREAS, a on -going use which is not permitted in the existing zoning district
19 may continue to operate provided that the business does not cease; and
20
21 WHEREAS, The Planning and Zoning Director in a communication to the hotel
22 dated September 9, 2009 determined that the restaurant did not renew their South Miami
23 occupational license when it expired on September 30, 2008, and therefore had lost their non-
24 conforming status; and
25
26 WEHEREAS representatives of the Hotel did report that the restaurant area
27 continued to be used to provide in -house meals and catering; and
28
29 WHEREAS, the Land Development Code (LDC) provides that if there is
30 uncertainty in determining the existence of a non - conforming use, the Planning Board after a
31, public hearing may consider making a recommendation on the subject pursuant to LDC Section
32 20- 4.8(C)(2); and
33.
34 WHEREAS, there is sufficient evidence that the restaurant function in the hotel has
35 been on -going for over 20 years and also did continue for several months after the formal business
36 was abandoned; and
37
38 WHEREAS, a restaurant use is generally an accepted accessory use in a hotel and
39 the continued restaurant use at this location is appropriate and will provide a needed service to the
40 neighborhood and hotel clients; and
41
42 WHEREAS, the City Commission after a public hearing and receipt . of a"
43 recommendation from the Planning Board may permit the continuation of the nonconforming use "
44 pursuant to LDC Section 20-6. 1 (A)(2)(c).; and
45
46 WHEREAS, the Planning Board at. its October 13, 2009 meeting after a public
47 hearing adopted a motion by a vote of 5 ayes 0 nays recommending approval of the proposed
48 request to allow continuation of a non - conforming restaurant at 5959 SW 71 Street, with a
49 condition; and
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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 this
ATTEST:
CITY CLERK
, day of
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
, 2009.
APPROVED:
u_ : •
XAComm Items\2009 \11 -3 -09 \Non - Conforming Rest Site 5959 SW 71 St Resol.doc
Commission Vote:
Mayor Feliu:
Vice Mayor Beasley:
Commissioner Palmer:
Commissioner Newman:
Commissioner Sellars:
City f South Miami z, x
y S,,h 4f4 3�'
Planning & Zoning Department
City Hall, 6130 Sunset Drive, South Miami, Florida 33143,
Telephone: (305) 663 -6326; Fax: 305 w `l009
Fax: ( 305) 668 -7356
SEP
'Fl k't�illli `LkAC'S9 I'M 91NrtWi5G
Application For Public Hearing Before Planning Board & City,Comr><ssQn
_
Address of Subject Property: 1-
1vw-A
Lot(s) E. i S Block
Subdivision P_0Ss\A& D
vL- 1 �r j
P B
V Letter of intent
Meets & Bounds:
_ Justifications for change
_ PUD Approval _Special Exception
Applicant: pl....Wk hW_'>
Phone:
✓ Proof of ownership or letter from owner
Power of attorney
Representative:
Organization:
Address:
Phone:
20 -6.1 (Z)Ce_1X)
Property Owner: 14 itAC
Signature:
i�iZ�c�Si4i�1T Er�ll�i2��rr'2►SES C_-O.
notices sent
Mailing Address: !S0 1�iiVp D�
LFEY i 4 NV-_.. N--L
Phone:
Architect/Engineer:
Phone:
AS THE APPLICANT, PLEASE INDICATE YOUR RELATIONSHIP TO THIS PROJECT:
Owner Owner's Representative Contract to purchase _Option to purchase
X Tenant/Lessee
APPLICATION IS HEREBY MADE FOR THE FOLLOWING:
SUBMITTED MATERIALS
PLEASE CHECK THE APPROPRIATE ITEM:
PLEASE CHECK ALL THAT APPLY:
Text Amendment to LDC _Variance
V Letter of intent
_ Zoning Map Amendment _Special Use
_ Justifications for change
_ PUD Approval _Special Exception
_ Statement of hardship
_ PUD Major Change X Other (t�
✓ Proof of ownership or letter from owner
Power of attorney
Briefly explain application and cite specific Code sections: �� _p p �� 'fj
Contract to purchase
Current survey (1 original sealed and
FNAT I N N `N 1 —C QN I G ,�►�
signed /1 reduced copy @ 11" x 17 ")
✓ 15 copies of Site Plan and Floor Plans
20 -6.1 (Z)Ce_1X)
1D1 STYz1 G i S j>E1?_ Sa:Jl N 11At , , i N1 , Div GO%i~
1 reduced copy @ 11" x 17"
✓ Affidavit- Receipts attesting to mail
Section20~63Subsection?6V Page #: � �� Amended Date:
notices sent
Mailing labels (3 sets) and map
_ Required Fee(s)
The and egigned has read this completed application and represents that the information and all submitted materials are true and
correct to he best o e applicant's knowledge nd belief.
Applicant's Signature and title Print Name Date
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 Filed Date of PB Hearing 007- A? Date of Commission
Petition Required Petition Accepted .;-)CrCI ,
Method of Pavment .?
4/16 /09XAForms \PB AnnGcation for Public Hearinu (Revised 20M rinc
City of South Miami
PB -09 -025 Continuation of Non - Conforming Restaurant
5959 SW 71st Street N
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GIS Data by Miami -Dade County, 11/2007. Made by City of South Miami, Engineering & Construction, 9/28/2009. -
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 located at 5959 S. W.715f Street, Miami, 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 floor space 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
Alicia
`Ca.rc a
Director. of Business Operations
Best Miami Hotel
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LD R A T
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 71St Street
Dear'Ms. Garcia:
South Miami
jF I o r i d a
All- America Citu
2001
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 Beriie'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.
4) The restaurant business must cease operations until approval is received as set
forth below;
BE
PLANNING & ZONING DEPT.
6130 SUNSET ]DRIVE
SOUTH MIAMI, FL 33143
Tel: 305- 663 -6326
Fax: 305-666-4591
2
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 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)(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.
Sec.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, DirL"ctor
Planning and Zoning Department
City of South Miami
C: Ajibola Balogun, City Manager
Attachment:
Special Public Hearing application form
TJV /SAY
X:\Letters \Letter to Best Miami Hotel.doc
-2-
i
CL 110I01
CITY OF SOUTH MIAMI - OL 8/25/09
License Master Inquiry 17:58:45
Business, control nbr
1914
License number . . . .
Pin number
08 00005357 Last activity:
. . . . . .
1892
Business name & address
Mailing address
STEAKHOUSE KOSAR
HOSP. 5959 SW 71 STREET
5959 SW
5959 SW 71 STREET.
SOUTH MIAMI FL
SOUTH MIAMI FL 33143
33143
Classification . . .
Exemption applied . . .
. BPS BUSINESS AND PROFESSIONAL
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
F3 =Exit F5= Additional charges F6= Charges More...
F7= Miscellaneous_ information
F9= Additional requirements F10= Receipts F24 =More 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 sic (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) Nonconforming Dimensions.
(1) A structure which was erected in conform-
onformance 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 located, 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 Use.
(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.
2) Where there is uncertainty in determining the existence of a nonconlorming use, MIT
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.
W) Ttie 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 through 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.
(e) 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 final judgment on appeals of administrative decisions.
(fj The city commission shall have the power and the dutv to hear an(i rleridp. the
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
� I-
(g)
The board shall review and make recommendations relating to the determination
and continuance of nonconforming uses.
i fie ooara snail review and make recommendations on all app ications or rgmat
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 & Date: October 13, 2009
Planning Board Members
c�-
From: Thomas J. Vageline, Direct ' men Re: Continuation of Non -
Planning and Zoning Depart . 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 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.
APPLICANT'S 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
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)(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 2
(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.
• 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 (Sec.20- 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 recommended 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/Floor 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
TJV /SAY
X: \PB\PB Agendas Staff Reports\2009 Agendas Staff Reports \10- 13- 09\PB -09 -025 Non - Conforming Rest 5959 SW 71 Str.doc
CITY OF SOUTH MIAMI
PLANNING BOARD
DRAFT Action Summary Minutes
Tuesday, October 13, 2009
City Commission Chambers
7:30 P.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.
II. 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 II),
Laurence Feingold, City Attorney.
IV. Planning Board Applications/Public Hearings.
PB -09 -025
Applicant: Anna Oliva. and Andrea Barszczuk
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 71St 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 "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 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).
Mr. Youkilis went on to express that 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 that there
will be no structural or architectural changes made to the building. 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. 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 ( 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 (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 Hearing
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 they 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 are 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
XAComm Items\2009 \11- 3 -09\PB Minutes Excerpt 10- 13- 09.doc
MIAMI DAILY BUSINESS REVIEW
Published Daily 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/k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami -Dade
County, Florida; that the attached copy.of advellisemeat,
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
Affiant further 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 advertise m t for publication in the said
newspaper. n 7 j
Sworn to and subscribed before me this
•. • •- ATO-
�!'�.SIIV 1fLt►ii poll IA
V. PEREZ personally known to me
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CITY OF SOUTH MIAMI
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY given that the City Commission of th-0 City of South
Miami, Florida will conduct Public Hearings at. its regular City
Commission meeting scheduled for. Tuesday, November 3, ' 2t>09,
beginning at 7:30 p.m. in the City Commis_ sion Chambers, 6130 Sunset
Drive, to consider the following item(s):
AN ORDINANCE OF THE MAYOR AND CITY.COMMISSION
OF THE, CITY OF SOUTH MIAMI, FLORIDA, RELATING.TO
AN AMENDMENT TO THE LAND DEVELOPMENT CODE'BY
MODIFYING,SECTION 20-4.4Qj,AND REMOVING: SECTION
20- 4.4(M);ENTiTLED'VALET PARKING PERMITS' IN ORDER
TO. PLACE'THE `SAME PROVISIONS IN SECTI6N,15(C).OF
THE SOUTH' MIAMI` CODE,OF.ORDINANCES;- PROVI.DING-
FOR SEVERABILITY; PROVIDING.FOR`- ORDINANCES IN
CONFLICT; AND`PROVIDING AN- EFFECTIVEDATE'•` ""
AN ORDINANCE OF THE MAYOR AND CITY' COMMISSION
OF THE CITY, OF."SOUTH.MIAMI; FLORIDA,' RELATING f0
AN AMENDMENT`,TO'.-jHEZSOUTH - MIAMI,,, CODE OF
ORDINANCES BY 'ADDING,NEW SECTION 15(C). TO 'BE
ENTITLED ,'VALET PARKING .'; PERMITS " °FOR':USE ;_OF
" PUBLIC PROPERTY' "IN' ' ORDER-,_Tdi, 'PLACE __THE
PROVISIONS ,OF PREVIOUS. LAND DEVELOPMENT.CODE
SECTION 2.0- 4.4(M) INTO THE CODE OF ORDINANCES AND
FURTHER TO INCREASE `;THE FEES'-'CHARGED • FOR
RENTAL.OF ON- STREET CURBSIDE��$PACES; PROVIDING
FOR`. EVERABILITY;.'PROVIDING' FOR. ' ORDINANCES IN
CONFLICT; AND PROVIDING AN EFFECTIVE�DATE:
AN ORDINANCE OF THE MAYOR AND CITY' COMMISSION
OF THE' CITY "OF SOUTH MIAMI, "FLORIDA, .=AMENDING
ARTICLE 11;`' SECTION 8 OF 'THE ".CITYS "CHARTER;
PROPOSING, TO. THE CITYS ELECTORS AN AMENDMENT
TO THE CITY'S CHARTER.TO,CHANGE THE PROCESS BY
WHICH MEMBERS'OF BOARDS AND-COMMITTEES ARE
CHOSEN; PROVIDING FOR THE PROPOSED AMENDMENT
TO BE SUBMITTED TO THE = CITYS EdECTORS 7 AT THE
NEXT MUNICIPAL ELECTION ',`pF , FEBRUARY; 9, 2010;
PROVIDING BALLOT LANGUAGE; DIRECTING THE CITY
CLERK TO TAKE ALL NECESSARY ACTIONS TO CARRY
OUT THE PROVISIONS OF THIS ORDINANCE; PROVIDING
AN EFFECTIVE DATE' FOR THE AMENDMENT. AND
DIRECTING THE CITY 'CLERK TO INCORPORATE THE
AMENDMENT INTO THE CHARTER AND TO FILE THE
REVISED CHARTER WITH THE FLORIDA DEPARTMENT OF
STATE; PROVIDING FOR SEVERABILITY, CONFLICT, AND
AN EFFECTIVE DATE.
A RESOLUTION OF THE' MAYOR AND CITY COMMISSION
OF THE CITY OF SOOTH 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 CONTINUA-
TION OF THE RESTAURANT USE AT SAME LOCATION;
PR.(}uIDING AN EFFECTIVE DATE.
ALL irilerested parties are invited to attend and will be heard:
;For further information, please contact Ahe'City„Clerk's Office at: 1
:305-663 6340.
.Maria M.'Menendez, CMC t
City Clerk .
Pursuant to Florida Statutes 286.0105, the City hereby .advises the .
public that if a person decides to'appeal any decision madeby this
Board, Agency or Commission with respect to any matter considered at
its meeting or hearing, he or she will need a record of the proceedings,
and that for such purpose, affected person may need to ensure that a
verbatim record of the proceedings'is made which record includes the
testimony and evidence upon which the appeal is to be based.
10/23 *: ?_.•:. , --t; t �09-3-218/-1333398M
Y'LE1'ICIA DE CASSIA FREEMAN
w.
PAY CONIMiSSION fr 00710253
EXP1RES August 29, 201 1
(407) 398 -0153
Floridayrnary5e;vi. . corn
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CITY OF SOUTH MIAMI
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY given that the City Commission of th-0 City of South
Miami, Florida will conduct Public Hearings at. its regular City
Commission meeting scheduled for. Tuesday, November 3, ' 2t>09,
beginning at 7:30 p.m. in the City Commis_ sion Chambers, 6130 Sunset
Drive, to consider the following item(s):
AN ORDINANCE OF THE MAYOR AND CITY.COMMISSION
OF THE, CITY OF SOUTH MIAMI, FLORIDA, RELATING.TO
AN AMENDMENT TO THE LAND DEVELOPMENT CODE'BY
MODIFYING,SECTION 20-4.4Qj,AND REMOVING: SECTION
20- 4.4(M);ENTiTLED'VALET PARKING PERMITS' IN ORDER
TO. PLACE'THE `SAME PROVISIONS IN SECTI6N,15(C).OF
THE SOUTH' MIAMI` CODE,OF.ORDINANCES;- PROVI.DING-
FOR SEVERABILITY; PROVIDING.FOR`- ORDINANCES IN
CONFLICT; AND`PROVIDING AN- EFFECTIVEDATE'•` ""
AN ORDINANCE OF THE MAYOR AND CITY' COMMISSION
OF THE CITY, OF."SOUTH.MIAMI; FLORIDA,' RELATING f0
AN AMENDMENT`,TO'.-jHEZSOUTH - MIAMI,,, CODE OF
ORDINANCES BY 'ADDING,NEW SECTION 15(C). TO 'BE
ENTITLED ,'VALET PARKING .'; PERMITS " °FOR':USE ;_OF
" PUBLIC PROPERTY' "IN' ' ORDER-,_Tdi, 'PLACE __THE
PROVISIONS ,OF PREVIOUS. LAND DEVELOPMENT.CODE
SECTION 2.0- 4.4(M) INTO THE CODE OF ORDINANCES AND
FURTHER TO INCREASE `;THE FEES'-'CHARGED • FOR
RENTAL.OF ON- STREET CURBSIDE��$PACES; PROVIDING
FOR`. EVERABILITY;.'PROVIDING' FOR. ' ORDINANCES IN
CONFLICT; AND PROVIDING AN EFFECTIVE�DATE:
AN ORDINANCE OF THE MAYOR AND CITY' COMMISSION
OF THE' CITY "OF SOUTH MIAMI, "FLORIDA, .=AMENDING
ARTICLE 11;`' SECTION 8 OF 'THE ".CITYS "CHARTER;
PROPOSING, TO. THE CITYS ELECTORS AN AMENDMENT
TO THE CITY'S CHARTER.TO,CHANGE THE PROCESS BY
WHICH MEMBERS'OF BOARDS AND-COMMITTEES ARE
CHOSEN; PROVIDING FOR THE PROPOSED AMENDMENT
TO BE SUBMITTED TO THE = CITYS EdECTORS 7 AT THE
NEXT MUNICIPAL ELECTION ',`pF , FEBRUARY; 9, 2010;
PROVIDING BALLOT LANGUAGE; DIRECTING THE CITY
CLERK TO TAKE ALL NECESSARY ACTIONS TO CARRY
OUT THE PROVISIONS OF THIS ORDINANCE; PROVIDING
AN EFFECTIVE DATE' FOR THE AMENDMENT. AND
DIRECTING THE CITY 'CLERK TO INCORPORATE THE
AMENDMENT INTO THE CHARTER AND TO FILE THE
REVISED CHARTER WITH THE FLORIDA DEPARTMENT OF
STATE; PROVIDING FOR SEVERABILITY, CONFLICT, AND
AN EFFECTIVE DATE.
A RESOLUTION OF THE' MAYOR AND CITY COMMISSION
OF THE CITY OF SOOTH 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 CONTINUA-
TION OF THE RESTAURANT USE AT SAME LOCATION;
PR.(}uIDING AN EFFECTIVE DATE.
ALL irilerested parties are invited to attend and will be heard:
;For further information, please contact Ahe'City„Clerk's Office at: 1
:305-663 6340.
.Maria M.'Menendez, CMC t
City Clerk .
Pursuant to Florida Statutes 286.0105, the City hereby .advises the .
public that if a person decides to'appeal any decision madeby this
Board, Agency or Commission with respect to any matter considered at
its meeting or hearing, he or she will need a record of the proceedings,
and that for such purpose, affected person may need to ensure that a
verbatim record of the proceedings'is made which record includes the
testimony and evidence upon which the appeal is to be based.
10/23 *: ?_.•:. , --t; t �09-3-218/-1333398M
;,he Miami Heralb
Publication Date: 10/25/2009
Ad Number: 841302402 Client Name:
Insertion Number: 841302402 Advertiser: CITY OF SOUTH MIAMI
Size: 2X9.0 Section /Page /Zone: NBRS Gables /GS40 /Dade
Color Type: B&W Description:
This ESheet(R) is provided as conclusive evidence that the ad appeared in The Miami Herald on the date and page indicated. You may not create derivative works, or in any way exploit or repurpose any content.
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