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07-31-07 Item 6South Miami AII•Amedca City I -- CITY OF SOUTH MIAMI INCORPORATED OFFICE OF THE CITY MANAGER INTER- OFFICE MEMORANDUM 2001 To: The Honorable Mayor Feliu and Members of the City Commission Via: Yvonne S. McKinley, City Manager From: Julian Perez, Planning Directo`r' Date: July 24, 2007 ITEM No. Subject: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA AMENDING SECTION 20 -5.6 OF THE LAND DEVELOPMENT CODE IN ORDER TO PROVIDE' A PROCEDURE FOR THE DEFERRAL OF AN APPLICATION SCHEDULED FOR PUBLIC HEARING; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND PROVIDING AN EFFECTIVE DATE Background: In June 2007, an applicant forwarded a verbal request to defer a public hearing item (variance) before the City Commission. The deferral request was made two days before the hearing and did not allow sufficient time to notify abutting and nearby residents who appeared at the meeting and waited for the item to be called. The City Commission directed the Planning staff to prepare an appropriate amendment to the LDC which would provide a' clear process for deferral of public hearing items. LDC Regulations The Land Development Code regulates the process for submitting applications requiring public hearings before the Planning Board and City Commission. This part of the Code (Sections 20 -5.5 and 20 -5.6) describes in detail the submission, advertisement and notification requirements, including a regulation for withdrawal of a petition. However, the procedures needed to regulate a request for deferral of an application are not set forth, and over the years there have been problems associated with deferrals because of the lack of specific regulations. Proposed LDC Amendment The proposed regulations are contained in the attached draft ordinance. A new Section 20- 5.6(E) entitled "Notification to Defer an Application Scheduled for Public Hearing Before the Planning Board and City Commission" would be added to Section 20 -5.6 "Applications in General" of the Land Development Code. The amendment would require a deferral request to be made in writing seven working days before the public hearing. The Planning Department or the City Clerk would notify the affected neighbors, re- advertise, and repost the property. The deferred hearing would be set no earlier than 60 days in the future. An additional fee equal to 25% of the original application filing fee must be submitted before the Planning Board or City Commission public hearing is re- scheduled. Failure to provide the required notice in advance will require the applicant to attend the meeting at which the hearing was scheduled and request the Planning Board or City Commission to defer the application. If a deferral is granted the deferred hearing would be set no earlier than 60 days in the future and the payment of the 25% fee would also be applicable. Planning Board Action The Planning Board at its July10, 2007 meeting adopted a motion by a vote of 5 ayes 1 nay (Ms. Beckman) recommending that the proposed ordinance with modifications suggested by the Board be approved. (2) Recommendation The. proposed regulations will discourage applicants from deferrals after a public hearing is scheduled. The proposed deferral fee is warranted because the City will be required to re- advertise the item, mail -out notices. and re -post the property. It is recommended that the proposed regulations contained in the attached draft ordinance be approved. Backup Documentation: Draft Resolution Planning Department Staff Report 7 -10 -07 Planning Board Minutes excerpt 7 -10 -07 Public notices JP /SAY P: \Comm Items\2007 \7- 24- 07 \PB -07 -018 LDDC Amend Hearing 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 ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA AMENDING SECTION 20 -;5.6 OF THE LAND DEVELOPMENT CODE IN ORDER TO PROVIDE A PROCEDURE FOR THE DEFERRAL OF AN APPLICATION SCHEDULED FOR PUBLIC HEARING; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, The Land Development Code regulates the process for submitting applications requiring public hearings before the Planning Board and City Commission, including regulations governing submission, advertisement, notification requirements, and regulations for withdrawal of an application; and WHEREAS, the procedures needed to regulate a request for deferral of an application which is scheduled for a public hearing before the Planning Board and City Commission are not set forth in the Land Development Code; and WHEREAS, deferrals can seriously impact the ability of abutting property owners to be represented at and to participate in a public hearing; and WHEREAS, the Planning Department has prepared an appropriate amendment to Section 20- 5.6 of the Land Development Code which establishes regulations for requesting a deferral of an application for a public hearing; and WHEREAS, the Planning Board at its July 10, 2007 meeting, after public hearing, by a vote of 5 ayes and 1 nay, approved a motion recommending that the proposed Land Development Code amendment contained in this ordinance be adopted; and WHEREAS, the City Commission desires to enact the aforesaid amendment. NOW,', THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section L That Section 20 -5.6 of the Land Development Code is hereby amended to read as follows: 20 -5.6 Applications in general. (A) General Requirements. All applications shall be submitted and processed pursuant to the requirements of this Code and shall be submitted by the owner of the property or an authorized agent of such owner on application forms available in the department of building and zoning. The director may require reasonable proof of agency from any agent. (13) Application Deadlines. The deadline for the filing of a complete application shall be noon of the Monday three (3) weeks prior to the public hearing date requested. Late or incomplete applications shall not be accepted for that agenda due to required public notice requirements. (C) Exemptions. Application requirements shall not apply to city - initiated amendments to the adopted Comprehensive Plan or this Code or any rules or regulations 1 regarding, Chapter 163, Florida Statutes. 2 3 (D) Withdrawal of a Petition. Any application for an amendment, supplement or 4 change may be withdrawn by request, in writing, from the applicant at any time before a 5 decision of the commission, but if withdrawn after advertisement: for a public hearing or 6 posting of the property, the same or substantially similar application governing the same 7 property shall not be resubmitted for a period of at least one (1) year except at the request 8 of a majority of the commission it can be heard after a period of six (6) months after the 9 date established for the prior hearing. Filing fees shall not be refunded upon any 10 withdrawal. 11 12 (E) Notification to Defer an Application Scheduled for Public Hearing Before 13 the Planning Board and City Commission: 14 15 (1) An application requiring public hearing which has been posted, advertised or 16 notice mailed to property owners within the required five hundred (500) feet of the 17 subject 1property may be deferred by an applicant or applicant's representative if 18 written notification is provided to the Planning Department and the City Clerk Office 19 no later than seven (7) working days prior to the scheduled public hearing. After the 20 notice to defer is filed in written form with the Planning Department and the City 21 Clerk Office, the Planning Director or City Clerk shall immediately re- notify by mail 22 the property owners within the five hundred (500) feet radius and post public notice 23 at the site advising the public of the deferral. 24 25 (2) If the Applicant or Applicant's representatives_ formally request within the time 26 frame stated above the deferral of an application scheduled for public hearing, the 27 application shall not be scheduled for public hearing for a minimum period of sixty 28 (60) days from the date of the meeting at which the deferred application was set for 29 public hearing. An additional fee equal to 25% of the original application filing fee 30 must be submitted before the Planning Board or City Commission public hearing is 31 re- scheduled. 32 33 (3) Failure to provide proffer and timely notification as set forth in Section 20- 34 5.6(E)(1) above will require the Applicant or Applicant's representative to appear 35 before the Planning Board or City Commission in order to formally request a 36 deferral of the application. A motion for deferral may be adopted by the Planning 37 Board or City Commission. If the Application is approved for deferral it will be 38 scheduled for public hearing; no sooner than sixty (60) days from the date of the 39 meeting at which the deferred application was set for public hearing. An additional 40 fee equal to 25% of the original application filing fee must be submitted before the 41 Planning Board or City Co_ _mmission public hearing is re- sched.uled. 42 43 (4) A request for deferral made by the City Manager, Planning Director, Planning 44 Board, City Manager or City Commission and shall not be subiect to the 45 requirements set forth above in Sections 20- 5.6(E) (1)(2) (3) . 46 47 48 Section 2. All ordinances or parts of ordinances in conflict with the provisions of this 49 ordinance are hereby repealed. 1 2 3 4 5 6 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 3 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 lst Reading — 2"d Reading — READ AND APPROVED AS TO FORM CITY ATTORNEY day of , 2007 APPROVED: E V •C COMMISSION VOTE: Mayor Feliu: Vice Mayor Wiscombe: Commissioner Palmer: Commissioner Birts Commissioner Beckman: o� So U xrl South Miami �r All-America City • INCORPORATED • 1'927 � 2011 To: Honorable Chair and Planning Board Members From: Julian Per — Planning Director Date: July 10, 2007 Re: LDC Amendment: Public Hearing Deferral PB -07 -018 Applicant: City of South Miami AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA AMENDING SECTION 20 -5.6 OF THE LAND DEVELOPMENT CODE IN ORDER TO PROVIDE A PROCEDURE FOR THE DEFERRAL OF AN APPLICATION SCHEDULED FOR PUBLIC HEARING, PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND PROVIDING AN EFFECTIVE DATE BACKGROUND The Land Development Code regulates the process for submitting applications requiring public hearings before the Planning Board and City Commission. This part of the Code (Sections 20 -5.5 and 20 -5.6) describes in detail the submission, advertisement and notification requirements, including a regulation for withdrawal of a petition. However, the procedures needed to regulate a request for deferral of an application are not set forth, and over the years there have been problems associated with deferrals because of the lack of specific regulations. In June 2007, an applicant forwarded a verbal request to defer a public hearing item (variance) before the City Commission. The deferral request was made two days before the hearing and did not allow sufficient time to notify abutting and nearby residents who appeared at the meeting and waited for the item to be called. The City Commission directed the Planning staff to prepare an appropriate amendment to the LDC which would provide a, clear process for deferral of public hearing items. LDC REGULATIONS The proposed regulations are contained in the attached draft ordinance. A new Section 20- 5.6(E) entitled "Notification to Defer an Application Scheduled for Public Hearing Before the Planning Board and City Commission" would be added to Section 20 =5.6 "Applications in General" of the Land Development Code. In summary, the amendment would require a deferral request to be made in writing five working days before the public hearing. The Planning Department or the City Clerk would notify the affected neighbors, re- advertise, and repost the property. The deferred hearing would be set no earlier than 60 days in the future. Failure to provide the required notice in advance will require the applicant to attend the meeting at which the hearing was scheduled and request the Planning Board or City Commission to defer the application. If a deferral is granted the deferred hearing would be set no earlier than 60 days in the future. An additional fee equal to 25% of the original application filing fee must be submitted before the Planning Board or City Commission public hearing is re- scheduled. LDC Amendment Hearing deferral July 10, 2007 Page 2 of 2 STAFF OBSERVATIONS (1) The proposed regulations will discourage applicants from deferrals after a public hearing is scheduled. (2) The proposed deferral fee is warranted because the City will be required to re- advertise the item, mail -out notices and re -post the property. RECOMMENDATION It is recommended that the proposed regulations contained in the attached draft ordinance be approved. Attachments: Draft Ordinance. Public Notices JP /SAY P:\PB \PB Agendas Staff Reports\2007 Agendas Staff Reports \7- 10- 07 \PB -07- -018 LDC Amend Hearing Deferral.doc SoUT�� (A I I .. INCORPORATED ` 1927 ` 0 CITY OF SOUTH MIAMI PLANNING BOARD Regular Meeting Action Summary Minutes Tuesday, July 10, 2007 City Commission Chambers 7:30 P.M. XC I. Call to Order and the Pledge of Allegiance to the Flag Action: The meeting was called to order at 7: 30 P.M. Action: 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. Davis, Mr. Farfan, Ms. Young, Ms. Chael, and Ms. Beckman. Board Members Absent: Ms. Yates City staff present: Julian H. Perez (Planning Director), Sanford A. Youkilis (Planning Consultant), and Lluvia Resendiz (Administrative Assistant). IV. Planning Board Applications / Public Hearing PB -07 -018 Applicant: City of South Miami AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA AMENDING SECTION 20 -5.6 OF THE LAND DEVELOPMENT CODE IN ORDER TO PROVIDE A ]PROCEDURE FOR THE DEFERRAL OF AN APPLICATION SCHEDULED FOR PUBLIC HEARING; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND PROVIDING AN EFFECTIVE DATE. Action: Ms. Young read the ordinance into the record. The Land Development Code regulates the process for submitting applications requiring public hearings before the Planning Board and City Commission. This part of the Code (Sections 20 -5.5 and 20 -5.6) describes in detail the submission, advertisement and notification requirements, including a regulation for withdrawal of a petition. However, the Planning Board Meeting Page 2 of 6 procedures needed to regulate a request for deferral of an application are not set forth, and over the years there have been problems associated with deferrals because of the lack of specific regulations. In June 2007, an applicant forwarded a verbal request to defer a public hearing item (variance) before the City Commission. The deferral request was made two days before the hearing and did not allow sufficient time to notify abutting and nearby residents who appeared at the meeting and waited for the item to be called. The City Commission directed the Planning staff to prepare an appropriate amendment to the LDC which would provide a clear process for deferral of public hearing items. In summary, the amendment would require a deferral request to be made in writing five working days before the public hearing. The Planning Department or the City Clerk would notify the affected neighbors, re- advertise, and repost the property. The deferred hearing would be set no earlier than 60 days in the future. Failure to provide the required notice in advance will require the applicant to attend the meeting at which the hearing was scheduled and request the Planning Board or City Commission to defer the application. If a deferral is granted the deferred hearing would be set no earlier than 60 days in the future. An additional fee equal to 25% of the original application filing fee must be submitted before the Planning Board or City Commission public; hearing is re- scheduled. Staff Observations: (1) The proposed regulations will discourage applicants from deferrals after a public hearing is scheduled. (2) The proposed deferral fee is warranted because the City will be required to re- advertise the item, mail -out notices and re -post the property. Recommendations: It was recommended that the proposed regulations contained in the attached draft ordinance be approved. Mr. Morton question if the actual application cost is or is not a fixed item and if it is basing on a percentage the actual cost is straight forward. He also questioned if the Board were dealing with a substantial application fee would the cost wan-ant the fee however. Staff responded that the fee covers to the cost of re- advertising, the :public hearing. Mr. Morton stated that if staff is comfortable with the fee then he would be fine with it also. Mr. Perez stated that through this ordinance draft, staff was attempting to have a process which serves the interest of the applicant as well as the residents impacted. Ms. Young stated that under element E(1) language reads "five working days. She questioned if under E(3) "60 days" meant 60 working days or calendar days. Mr. Youkilis responded indicating the meaning was 60 calendar days. Planning Board Meeting Page 3 of 6 Ms. Beckman stated there is a remedy for these situations called civility. Anyone who withdraws and application without considering the rights of other residents, should not deserve special privileges. Under most circumstances the applicant or their attorney come before the City Commission and ask for a deferral. Currently staff proposes the implementation of an ordinance for bad and uncivil behavior, which becomes an insult to the residents of South Miami. Ms. Chael stated that because the City incurs cost one positive response that may come out of this would be that some of the administrative costs would offset. Mr. Youkilis stated the proposed ordinance was written to protect neighborhood residents who come to a meeting and the developer requests a deferral, a deferral which is granted by the City Commission. It is a trick played by developers and this ordinance will stop it. Ms. Chael suggested that under E(1) strike "proper" and replace with written also strike "within" and replace with "no later than" this is just for clarification. Under E (4) she suggested adding at the beginning of the sentence "If application is approved for deferral," Ms. Beckman stated the surrounding neighbors should be notified immediately and not by mail. She further added, the applicant should hold the burden to make the notification. Mr. Youkilis recommended adding language indicating that staff will notify the surrounding neighbors. Mr. Perez advised that one reason staff does not make notifications via phone calls was due to a lack of staff resources to call every resident. One tactic staff will implement will be a phone call to a specific, most involved, surrounding neighbor, by himself, Mr. Youkilis, or Ms. R:esendiz. Ms. Beckman then stated that such language should be included in the ordinance. Mr. Perez responded that it will be an office policy. Mr. Davis questioned why there was no recording system where providing City updates where people could call. It would be simple because many people are not computer savvy. Having the ability to hear the City updates through a phone recording will sound more personal. Ms. Chael suggested placing a notice of public hearing with a yellow sign indicating the item has been deferred where it is clearly visible. Staff replied that public notice posting is currently a policy of the department. Chairman Morton opened the public hearing. Speakers: NAME ADDRESS SUPPORT /OPPOSE Cathy McCann 5820 SW 87 Street Oppose Ms. McCann stated she applauds staff for attempting to correct a very unpleasant situation. However, she believed staff was bending over backwards to assist the wrong group. Letter Planning Board Meeting Page 4 of 6 "D" was placed in the ordinance. with a purpose therefore, one cannot assume a deferral will be granted. A deferral is a privilege and not a right. If someone is requesting an approval and it is open for public hearing, then that someone knows the date the public hearing is scheduled for. Letter "D" states if an applicant does not follow through once a public hearing has been published and the applicant does appear he /she may not come back for a year or six months pending the vote of the Commission. It appears that with this proposed ordinance staff is bending over backwards to help people do something which they already have a right to do. If staff feels that someone does not know they have a right for a deferral, then that language should be added to the ordinance. She stated the department should be commended for stating the mail -outs could be completed within 12 hours however she doubts that because five working days for mailings are too short. She finds nothing wrong with an applicant coming up and asking for a deferral. She does not believe there has ever been a situation where someone has asked for a deferral and has been denied the deferral. Through this ordinance, staff is making it easier for the applicant. Mr. Morton questioned if Ms. McCann was saying that in order to grant a deferral one must be present at the day that one is scheduled for the public hearing. Ms. McCann responded with an affirmative adding that it does not have to be the applicant but it could be a representative of the applicant. Ms. Young questioned Ms. McCann regarding the residents that are in the chambers. Ms. McCann responded that residents have been physically present when a deferral has been requested and a deferral has been for good reasons. Mr. Youkilis advised that the Planning Department was willing to do the extra work in order to protect the residents. Mr. Morton suggested it would be practical to ask, at the beginning of any meeting, if anyone with an item on the agenda will be requesting a deferral. Ms. Chael questioned Ms. McCann whether a sick person, if a legitimate reason was given, could be a reason why the City Commission may agree to waive the fee. Ms. McCann stated that it would be up to the Planning Board to make the decision on whether the reason is legitimate or not. Mr. Youkilis advised that the ordinance was written by professional planners and has been reviewed by the City Attorney and the Mayor. They all agreed it was for the best interest of the residents therefore staff recommends that the Planning Board approve the ordinance. Chairman Morton closed the public hearing. Mr. Morton stated that the request for the deferral by the applicant automatic given with a fee; and E(4) indicates that at the public hearing there would have to be a formal action taken by the Board to defer an application. If it is an automatic approval all that is being done :is making a record. Planning Board Meeting Page 5 of 6 Mr. Youkilis added it is granted however with penalties. If an applicant fails to give notice five working days prior, they have the right to attend the scheduled meeting and request a deferral. Thereafter, every interested party who was previously notified would be present and it would be the Boards decision whether to grant deferral or not. Mr. Morton asked, for clarification, if the applicant present at the scheduled meeting is asking for a deferral and the Board grants the deferral, would the applicant be subject to the 25% fee. Mr. Youkilis responded with and affirmative indicating the application would be scheduled for a future public hearing consistent with E(3). Mr. Morton suggested adding language in order to clarify that if the applicant does not request a deferral five working days prior and appears before the board at his /her scheduled meeting the Board on its scheduled meeting may approve or deny deferral making the applicant subject to the 25 0/c, fee. Mr. Youkilis advised that the last sentence under E(4) stated that the application will be scheduled for a future public hearing consistent with Section 20 -5.6 (E)(3) and that E(5) references the 25% fee. Motion: Ms. Beckman moved to defer the item under the observation that public scrutiny is required. She added that the decision has been taken out of decision making process by the City Commission and elected officials. She stated that the decision making has been given to staff. There is too much room for interplay between staff and the applicants. She will vote for the ordinance if it is changed to say that it must go to the Commission at the time the application is due providing everyone with a fair voice. The motion failed to pass for lack of a seconded. Mr. Morton recommended changing the five working days on a prior notification or at the hearing in order to have it as an alternative approach recognizing that the deferral can be presented at the hearing itself but will all of the other penalties apply. He recommended taking E(5) and make it a part of E(1). Mr. Davis questioned if an applicant appears before the Board for an item and knows he /she is deferring, is it protocol to announce their decision at the beginning of the meeting or does the applicant sit and wait. Mr. Perez responded the applicant may approach staff, staff then approaches the City Manager, she then approaches the City Attorney and he then approaches the Mayor. Mr. Morton suggested that the Board or the Commissionshoulid present a question, at the beginning of the meeting, whether anyone is requesting a deferral. Mr. Youkilis suggested redrafting the ordinance and place E(4 and5) in E(1) in order to address the issue. Mr. Morton recommended deleting the word "may be" from E(2) and adding "and after City Commission. Planning Board Meeting Page 6 of 6 Mr. Davis questioned if it was feasible to implement a stiffer penalty for an applicant who waits for an item to appear before the Board and requests a deferral at that time providing the applicant pays 100% percent of the fee. Ms. Chael questioned if an applicant at the hearing formally requests deferral would be subject to the 25 %. Staff responded with an affirmative. She inquired if the Commission would have the right to waive the fee should an act beyond an applicants control be faced with a situation. Staff responded, it would be on a case by case situation and who would determine what a valid or not valid reason constitutes. Staff did not recommend. Ms. Young recommended changing five working days to seven working days in order to allow staff with ample time, under E(1). Ms. Chael agreed with Mr. Morton to pose question at the beginning of the Board meeting, if anyone is requesting a deferral. Motion: Ms. Young moved that notification to defer an application scheduled for public hearing before the Planning Board and City Commission be approved with the recommended editorial changes. Ms. Chael seconded. • E(1), sentence (1) strike "proper" and replace with "�.vritten" strike "within" and replace with "no later than" • E (4), sentence (3), shall read "If application is approved for deferral the application will be scheduled for a future public hearing consistent with Section 20- 5.6(E)(3)." • Redraft the ordinance and place E(4 and5) in E(1). • E(2), strike "may be" and adding "and" after City Commission. Vote: 5 Ayes 1 Nays (Ms. Beckman)