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11-18-08 Item 16South Miami kylftml AMMIUM I " CITY OF SOUTH MIAMI 1111. NEO OFFICE OF THE CITY MANAGER 1927 INTER- OFFICE MEMORANDUM 2001 To: The Honorable Mayor Feliu and Members of the City Commission Via: Ajibola Balogun, City Manager From: Sanford A. Youkilis, Acting Planning Directo Date: November 18, 2008 ITEM No. Subject: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A REQUEST TO AMEND THE LAND DEVELOPMENT CODE BY INSERTING NEW SECTION 20- 3.1(E) TO BE ENTITLED "BUSINESS OUTSIDE A BUILDING ", IN ORDER TO REQUIRE THAT ALL COMMERCIAL ACTIVITIES CONDUCTED OUTSIDE A BUILDING MUST HAVE A PROPERLY ISSUED LICENSE OR PERMIT ALLOWING FOR OUTDOOR USE; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND The Administration in recent months has received numerous complaints that certain types of business have been conducting all or part of their business activities on the outside of the building in which the main building is located. Planning staff has observed this activity in several areas and includes businesses such as automobile repair, unlicensed food vendors, and extension of physical fitness or personal skills training into parking lots and public rights of -way. The Administration in recent months has received numerous complaints that certain types of business have been conducting all or part of their business activities on the outside of the building in which the business is located.. It has been the City's long- standing policy that business activities can only be conducted inside a building unless specifically allowed as a permitted use (license or certificate of use) or by special approval by the Administration or the City Commission. An amendment to the Land Development Code essentially memorializes this existing policy by incorporating it into the Land Development Code. LEGISLATIVE HISTORY This item was before the Planning Board at its September 15, 2008 at which time the Board reviewed a staff recommendation which prohibited business outside a building and then listed a number of exemptions for uses which obviously were conducted outside a building. Before the approved amendment was forwarded to the City Commission in ordinance format the sponsor of the amendment, the City Manager, requested that the amendment language needed to be simplified, The City Attorney prepared a revised amendment which was brought before the Planning Board at its October 28, 2008 meeting. At that time the Board amended the revised recommendation and approved it for transmission to the City Commission. PROPOSED AMENDMENT Section 20 -3.1 Zoning use districts and purposes. (A) — (D) "(E) Business Outside a Building - No use within any commercial or mixed use district shall be permitted to be conducted outside of the building, unless a properly issued permit is associated with the use. Those outdoor uses that seek and obtain a permit from the City may conduct the outdoor uses in accordance with the terms and conditions of the permit This section codifies the long- standing administrative policy and practice of the City relating to uses of structures and uses that extend outside of the structure, as outdoor 2 uses may impact requirements relating to parking, infrastructure, noise, and may create a nuisance situation. Any outdoor use (allowed by zoning permit or special event approval) may be subject to enforcement action or permit revocation if the activities adversely affects, interferes, or creates a nuisance in a public right -of -away or to adjacent properties." PLANNING BOARD ACTION The Planning Board at its October 28, 2008 meeting conducted a public hearing on the proposed amendment and then adopted a motion recommending approval of the proposed amendment by a vote a vote of 4 ayes 2 nays (Ms.. Young, Ms. Chael). RECOMMENDATION It is recommended that the proposed amendment as .shown in attached draft ordinance be approved on first reading. Attachments Draft ordinance Planning Department Staff Report 10 -28 -08 Planning Board Minutes Excerpt 10 -28 -08 Public Notices SAY X: \Comm Items\2008 \11- 18- 08 \LDC Amend Amend Bus Outside Building. CM Report.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A REQUEST TO AMEND THE LAND DEVELOPMENT CODE BY INSERTING NEW SECTION 20- 3.1(E) TO BE ENTITLED "BUSINESS OUTSIDE A BUILDING ", IN ORDER TO REQUIRE THAT ALL COMMERCIAL ACTIVITIES CONDUCTED OUTSIDE A BUILDING MUST HAVE A PROPERLY ISSUED LICENSE OR PERMIT ALLOWING FOR OUTDOOR USE; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Administration has received numerous complaints that certain types of business have been conducting all or part of their business activities on the outside of the building without proper license, certificate of use or special approval; and WHEREAS, this activity can be detrimental and unfair to near -by businesses and residents in the same vicinity and therefore it is appropriate for local governments to regulate this type of activity; and WHEREAS, it has been the City's long- standing policy that business activities can only be conducted inside a building unless specifically allowed as a permitted use (license or certificate of use) or by special approval by the Administration or the City Commission.; and WHEREAS, an amendment to the Land Development Code would memorialize this existing policy and would provide a specific regulation on conducting all or part of business activities on the outside of the building without proper license, certificate of use or special approval ;and WHEREAS, the Planning Board at its October 28, 2008 meeting, after public hearing, the Board adopted a motion recommending approval of the proposed amendment by a vote of 4 ayes and 2 nays; and WHEREAS; the City Commission desires to accept the recommendation of the Planning Board and enact the aforesaid amendment. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. That Section 20 -3.1 entitled " Zoning use districts and purposes" of the Land Development Code is hereby amended to add the following: Section 20 -3.1 Zoning use districts and purposes. (A) — (D) "(E) Business Outside a Building - No use within any commercial or mixed use district shall be permitted to be conducted outside of the building, unless a properly issued permit is associated with the use. Those outdoor uses that seek and obtain a permit from the City may conduct the outdoor uses in accordance with the terms and conditions of the permit. This section codifies the long- standing administrative policy and practice of the City relating to uses of structures and uses that extend outside of the structure, as outdoor uses may impact requirements relating to parking, infrastructure, noise, and may create a nuisance situation. Any outdoor use (allowed by zoning permit or special event approval) may be subject to enforcement action or permit revocation if the activities adversely affects, interferes, or creates a nuisance in a public right -of -away or to adjacent properties." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 W Section 2 All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 3 If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the remaining portions of this ordinance. Section 4 This ordinance shall be effective immediately after the adoption hereof. PASSED AND ADOPTED this ATTEST: CITY CLERK I't Reading — 2" d Reading — day of , 2008 APPROVED: MAYOR READ AND APPROVED AS TO FORM: CITY ATTORNEY XAComm Items\2008 \11- 18- 08 \LDC Amend Bus Outside Build, Ord.doc COMMISSION VOTE: Mayor Feliu: Vice Mayor Beasley: Commissioner Wiscombe: Commissioner Palmer: Commissioner Beckman: To: Honorable Chair and Planning Board Members From: Ricardo Soto - Lopez, MUP Planning Director South Miami All-America City 2001 Date: October 28, 2008 Re: LDC Amendment — Business Outside A Building Sec. 20- 3.1(E) PB -08 -030 Applicant: City of South Miami AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A REQUEST TO AMEND THE LAND DEVELOPMENT CODE BY INSERTING NEW SECTION 20- 3.1(E) TO BE ENTITLED "BUSINESS OUTSIDE A BUILDING ", IN ORDER TO REQUIRE THAT ALL BUSINESS ACTIVITIES MUST BE CARRIED OUT WITHIN A BUILDING AND PROVIDING FOR EXCEPTIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. BACKGROUND The Administration in recent months has received numerous complaints that certain types of business have been conducting all or part of their business activities on the outside of the building in which the main building is located. Planning staff has observed this activity in several areas and includes businesses such as automobile repair, unlicensed food vendors, and extension of physical fitness or personal skills training into parking lots and public rights of -way. This activity is detrimental and unfair to near -by businesses and residents in the same vicinity. It is appropriate for local governments to regulate this type activity. It has been the City's long- standing policy that business activities can only be conducted inside a building unless specifically allowed as a permitted use or by special approval by the Administration or the City Commission. An amendment to the Land Development Code essentially memorializes this existing policy by incorporating it into the Land Development Code. LEGISLATIVE HISTORY This item was before the Planning Board at its September 15, 2008 at which time the Board reviewed a staff recommendation which prohibited business outside a building and then listed a number of exemptions for uses which obviously were conducted outside a building. (see attached Staff Recommendation). At that time the Board amended the staff recommendation by adding that business outside of a building was prohibited "..the activities adversely affects, interferes, or creates a nuisance in a public right -of -away or to adjacent properties" (see attached Planning Board Recommendation). The Board then approved the amendment by a vote of 5 ayes and 0 nays. The City Manager, who originally requested an amendment to respond to this issue, asked the City Attorney to review the amendment before placing it before the City Commission. The City Attorney advised that the wording of the final amendment could be interpreted that the exempted uses could exist even if they adversely affected or created a nuisance. The City Manager then requested the Planning Board to re- consider its recommendation and to review the City Attorney's suggestion. The attorney suggested that a more simplified amendment would be more appropriate. GDC Amendment October, 2008 Page 2 of 2 CITY ATTORNEY PROPOSED AMENDMENT Section 20 -3.1 Zoning use districts and purposes. (A) — (D) (E) Business Outside a Building - No use within any commercial or mixed use district shall be permitted to be conducted outside of the building, unless a properly issued permit is associated with the use Those outdoor uses that seek and obtain a permit from the City may conduct the outdoor uses in accordance with the terms and conditions of the permit This section codifies the long - standing administrative policy and practice of the City relating to uses of structures and uses that extend outside of the structure as outdoor uses may impact requirements relating to parkins infrastructure, noise, and may create a nuisance situation RECOMMENDATION The amendment above formalizes the City's policy that outdoor uses are prohibited unless allowed by a zoning approval (permit or certificate of use) or a special event approved by the City Manager or City Commission. However the amendment above does not specify that adverse affects or the creation of nuisance by a use outside a building is prohibited. It is recommended that the proposed amendment (Section 20- 3.1(E), as set forth above by the City Attorney should be amended by adding the wording that "any outdoor use (allowed by zoning permit or special event approval) may be subject to enforcement action or permit revocation if the activities adversely affects, interferes, or creates a nuisance in a public right -of -away or to adjacent properties." Attachments: Planning Staff Recommendation Planning Board Modification Planning Board Minutes Excerpt, Sept. 15, 2008 Public Notices RSUSAY X:\PB \PB Agendas Staff Reports\2008 Agendas Staff Reports \10- 28- 08 \PB -08 -030 LDC Amend Busineess Outside.doc STAFF RECOMMENDATION 9/15/08 PROPOSED AMENDMENT Section 20 -3.1 Zoning use districts and purposes. , (A) — (D) (E) Business outside a building- No business shall be permitted unless such business is conducted within a building according to the provisions of this and other ordinances of the City of South Miami; provided that this section shall not apply to the following: (1) Automobile service stations, (2) Automobile for sale or lease lots commercial parking lots and mobile automobile wash/wax services when approved in accordance with the provisions of this Code; (3) Open air cafes or restaurants with outside seating/dining when approved and permitted in accordance with the provisions of this Code; (4) Restaurant drive -in service windows and drive -in and /or tellers when approved in accordance with the provisions of this Code; (5) Mobile vendors of merchandise or food /beverage services when approved in accordance with the provisions of the City Code and/or this Code; (66)Special events or activities improved by the City Manager in accordance with the provisions of the City Code and /or this Code. PLANNING BOARD 9/15/08 PROPOSED AMENDMENT Section 20 -3.1 Zoning use districts and purposes. (A) — (D) (E) Business outside a building- No business shall be permitted to be conducted outside a building if the activities adversely affects, interferes, or creates a nuisance in a public right -of -away or to adjacent properties -F-South Miam provided that this section shall not apply to the following: (1) Automobile service stations; (2) Automobile for sale or lease lots, commercial parking lots and mobile automobile wash/wax services when approved in accordance with the provisions of this Code; (3) Open air cafes or restaurants with outside seating/dining when approved and permitted in accordance with the provisions of this Code; (4) Restaurant drive -in service windows and drive -in and/or tellers when approved in accordance with the provisions of this Code; (5) Mobile vendors of merchandise or food/beverage services when approved in accordance with the provisions of the City Code and /or this Code; (6) Special events or activities approved by the City Manager in accordance with the provisions of the City Code and /or this Code. X04 souT�� oil'" U ^ � INCORPORATED � 1927 �oRto CITY OF SOUTH MIAMI PLANNING BOARD Action Summary Minutes Tuesday, October 28, 2008 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 7:38P.M. The Pledge of Allegiance was recited in unison. II. Roll Call Action: Chairman Morton requested a roll call. Board members present constituting a quorum: Mr. Morton, Ms. Yates, Mr. Farfan, Mr. Cruz, Ms. Young, and Ms. Chael. Absent: Mr. Comendeiro City staff present: Ricardo Soto - Lopez, (Planning Director), and Sanford A. Youkilis (Consultant), and Lluvia Resendiz (Zoning Tech). III. Planning Board Applications/Public Hearing PB -08 -030 Applicant: City of South Miami AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A REQUEST TO AMEND THE LAND DEVELOPMENT CODE BY INSERTING NEW SECTION 20- 3.1(E) TO BE ENTITLED "BUSINESS OUTSIDE A BUILDING ", IN ORDER TO REQUIRE THAT ALL BUSINESS ACTIVITIES MUST BE CARRIED OUT WITHIN A BUILDING AND PROVIDING FOR EXCEPTIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. Mr. Morton read the item into the record. Action: Mr. Soto -Lopez advised that the language was not tight enough. He advised that staff was in support of the text amendment and referred the item to the City Attorney for a detailed explanation. Mr. Morton requested clarification with regards to Mr. Soto - Lopez's support in the change of language and asked if the change was based on the document presented. Mr. Soto -Lopez replied that the recommendation is to move forward with the change in language. Mr. Figueredo stated that the purpose of the text amendment was to memorialize a long standing policy. The policy currently states that a business owner holding a Certificate of Occupancy for an internal use may be required to get a license to extend a business outside. As an example he referred to the outdoor seating permit. He stated that the outdoor seating must be applied for in Planning Board Meeting October 28, 2008 Page 2 of 3 order to extend the business outside. The City Manager wished to codify what has been an administrative policy. Mr. Morton referred to body shops along Commerce Lane in that its operation consists of extending the business outside. He stated that if this policy were to be approved it would prohibit the possibility of cars being parked outside. Mr. Figueredo advised that the business owner would be required to get special permission to conduct that business outside. Mr. Figueredo advised that the text amendment indicates that if there is no prohibition for a use outside of the structure then the business owner will be required to obtain a special permission by the City. Chairman Morton opened the Public Hearing. Name Address Position Sharon McCain Oppose Ms. McCain stated that the purpose of the ordinance was because an outside physical fitness operation. However this ordinance, as it is written does not rectify the problems that have existed. In the neighborhoods downtown there are several physical fitness activities that extend themselves outside taking up the entire street forcing residents to walk on the street. This ordinance says that you can do that if you get a permit from the City. The text amendment, as proposed, does nothing to rectify the problem. Ms. McCain requested that the text amendment be specific in order to solve the real problem. If this text amendment is approved the City's LDC will be loose and open for interpretation. The way the language is written is dangerous and does not solve the reason why it was brought before the Planning Board. Mr. Morton questioned if the City will have the authority to rescind an issued permit if it were to be determined that a side walk was obstructed. Mr. Figueredo stated that any permit that is issued will have conditions. Mr. Figueredo stated that the language change indicates that when an indoor Certificate of Occupancy permit is issued it is issued for indoor use and cannot be taken outside. To go outside will require an additional permit. Mr. Youkilis advised that there are permits that are for outside uses such as gas stations and outdoor seating. He requested that the Board pay attention to the last paragraph of the staff recommendation where staff supports the City Attorney's wording. Staff, however, has incorporated a sentence to state that the outdoor use is subject to enforcement or permit revocation if the activity or permit creates a nuisance. Mr. Figueredo agreed with Mr. Youkilis. Cathy McCann 5820 SW 87 Street Oppose Ms. McCann stated she was not in favor of the text amendment. She feels that the text amendment reads as if the uses will be permissive and not prohibited. A permissive code states that if it does not say that you can do it than you cannot. In changing this language does not solving the problem but rather creates another layer of interpretation. It has worked in the past therefore we should not change it. Chairman Morton closed the Public Hearing. Mr. Cruz stated that the Board made recommendations on this item in a previous meeting and the language was very specific with exemptions. The current proposed language is not specific at all. He requested clarification as to who will make the determination as to what will be allowed outside or not. Mr. Soto -Lopez replied that it was as specific as the City Attorney could make and he wrote it very specific. Mr. Cruz clarified that he was not implying that the City Attorney's proposed text amendment was incorrect. He stated that when it was first written staff was Planning Board Meeting October 28, 2008 Page 3 of 3 specifically looking at an exclusion of certain items those items are not excluded in the new amendment. Mr. Cruz stated he agreed with Mr. Morton in that the text amendment could affect business such as an automobile repair shop. Mr. Cruz questioned it the Board will be asking for specific permits. He also noted that the text amendment provides for an avenue but not clear as to which avenue will be taken for these types of permits. Mr. Soto -Lopez stated that he will not interpret the City Attorney's comments. Mr. Cruz questioned the type of mechanism that will be in place for the issuance of permit. Mr. Cruz stated that his concern was the way it was written may present issues in the future. Mr. Figueredo replied that the intent was not to direct something that is common sense such as a gas station. Mr. Figueredo also stated that the text amendment states that there is a limit and the limit of the approval will be for indoor use unless it is specifically permitted to go outside. This intent is to address Code Enforcement issues. By having a provision that a permit is specific to allow indoors uses any structure with outdoor uses will require an additional permit. Unless a business is specifically permitted in the LDC a special permit will be required by the administration. The City Manager wanted a broader amendment. Ms. Chael greed with McCann in that the text amendment will be over regulation. She stated that as worded it can be understood that pedestrians and cyclists could be a nuisance. She feels that in changing the section in the code it could be considered to be over enforcing. Ms. Young requested clarification as to why the text amendment was brought back to the Planning Board and not forwarded to the City Commission. Mr. Soto -Lopez replied that the City Manager wanted tighter regulation on outdoor uses. Mr. Morton passed the Chair to the Vice Chair. Motion: Mr. Morton moved to approve the text amendment as recommended with the additional sentence proposed by staff. Mr. Cruz seconded. Vote: 4 Ayes 2 Nays (Ms. Chael and Ms. Young) Vice Chair Brenda Yates passed the Chair back to Chairman Morton. XAComm Items\2008 \11- 18- 08\PB- Min- 10 -28 -08 Excerpt Business Am