01-18-05 -Missing Agenda Item 1b1 City of South Miami
2 Regular City Commission Minutes
3 January 4, 2005
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
CALL TO ORDER:
The City Commission of the City of South Miami, Florida met
in regular session on Tuesday, January 4, 2005, beginning at 7:30
p.m., in the City Commission Chambers, 6130 Sunset Drive.
A. Roll Call:
The following members of the City Commission were present:
Mayor Mary Scott Russell, Vice Mayor Velma Palmer, and,
Commissioners Marie Birts- Cooper, Randy G. Wiscombe and Craig Z.
Sherar.
Also in attendance were: City Attorney Luis Figueredo, City
Manager Maria V. Davis and City Clerk Maria M. Menendez.
B. Invocation: The invocation was delivered in silence.
C. Pledge of Allegiance:
The Pledge of Allegiance was recited in unison.
D. Presentation(s) 7:00 p.m.
(None)
ITEMS (S) FOR THE COMMISSION'S CONSIDERATION:
1. Minutes of December 21, 2004
Moved by Commissioner Wiscombe, seconded by Vice Mayor
Palmer, the motion to defer the Minutes of December 21, 2004
passed by a 5 -0 vote:
Commissioner Wiscombe: Yea
Commissioner Sherar: Yea
Vice Mayor Palmer: Yea
Commissioner Birts- Cooper: Yea
Mayor Russell: Yea
2. City Manager's Report:
REGULAR CITY COMMISSION
MINUTES - January 4, 2005
1
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
a) Recommendation of a proposed workshop for the Bank
project, on Wednesday, February 9, 2005.
The Commission decided to move this date to Thursday,
February 10th at 7:00 p.m., in observance of Ash Wednesday.
b) "Sundays on Sunset"
Ms. Davis reported on the success of this event saying that
everything had gone very well; this is in an effort to promote
our downtown and to promote economic development. We had music,
antique dealers, produce and food. She then commended in -house
staff who contributed with great effort in their own time. The
next event will take place on Sunday, February 6th. She then
announced that our trolley service is now running every Friday
and Saturday from 11:00 a.m. to 10:00 p.m. And on the first
Sunday of each month, will run from 10:00 a.m. to 6:00 p.m. The
route and stops will be modified as time goes on.
With no further comments or discussion, the City Manager's
Report concluded.
At this time Mayor Russell referred to the "Red Road
Commons" project informing that the applicant had gone back to
the drawing board and that since they would not be ready for the
Special Meeting scheduled for Wednesday, January 12th, that the
meeting should be cancelled and directed to be taken off the
Agenda.
Commissioner Wiscombe said that he would like to know when
the applicant will be ready.
Commissioner Sherar said that they have 90 days after the
Planning Board sends its recommendation to the Commission. He
then made comments on various issues: coming up with a resolution
to regulate where construction workers should park; a two -year
street paving moratorium to prevent from cutting up a fairly new
paved street; removing surveyor's markings on sidewalks; bringing
up an ordinance putting the CRA on a referendum at the next
general election. He then said that Sunday's event had been very
nice.
Commissioner Wiscombe said that he had spent a long time at
"Sunday's on Sunset" event and that he had found it to be very
successful, with a good flow of people at all times. He said that
a lot of people came up to him to say how nice it was.
REGULAR. CITY COMMISSION
MINUTES - January 4, 2005
2
1 3. City Attorney's Report:
2
3 Attorney Figueredo said that there were several questions
4 regarding item no. 5 on the Agenda, relating to a proposed
5 contract with the State Attorney to prosecute criminal offenses
6 that are under the City Code. The necessity for the contract is
7 that the legislation in 2004 amended the law. The purpose behind
8 the amendment to the law is to find a way for the State
9 Attorney's office to try to capture certain costs associated with
10 prosecuting essentially City offenses relating to ordinances
11 dealing with issues such as alcohol intoxication, animal control,
12 and noise. Mr. Figueredo went on to explain this in greater
13 detail.
14
15 Commissioner Sherar at this time referred to the need of
16 continuing with the selection process for City Attorney now that
17 the interview process has concluded. Mayor Russell directed Ms.
18 Davis to get together with Commissioner Sherar between now and
19 the next meeting and determine as to what would be the best way
20 to handle it.
21
22
23 PUBLIC REMARKS
24 (5- minute limit)
25
26 David Tucker Sr. addressed the Commission referring to last
27 year events as they related to the City.
28
29 Monique de Paredes, with the Commission for Women, reminded
30 everyone of the January 31st deadline for submitting
31 recommendations for the "Women of Vision Wall" contest. She also
32 announced the self - defense classes starting with the first
33 Saturday in February. She said for anyone with questions on any
34 of these to call 305 - 663 -6332.
35
36 Walter Harris, last year's president of the SMHOA, announced
37 Jay Beckman as the next president. He also said that he is
38 looking forward to the second annual come together picnic.
39 Finally, referring to Sharon McCain's newspaper article, urged
40 the Commission to get involved by sponsoring more resolutions.
41
42 Mayor Russell explained that the reason why the number of
43 resolutions she sponsored last year was higher than the rest is
44 because it is her responsibility to appoint board members which
45 is done by resolution.
46
47 Commissioner Wiscombe, also in reference to the newspaper
48 article regarding lack of resolutions being sponsored by him last
49 year, said that he believes in quality and not necessarily in
REGULAR CITY COMMISSION 3
MINUTES - January 4, 2005
I quantity, and when it came to the lot splitting, he was there,
2 when it came to the setbacks, he was there; simply to protect the
3 quality of life that we have and are enjoying now. He said this
4 to set the record straight. This is not to count number or put
5 himself on the map.
6
7 Vice Mayor Palmer, also on the same subject, said that she
8 knows what she stands for; it does not matter to me who puts
9 something on the agenda, but never have I come here and sit down
10 and not do what I'm supposed to do. I'm very outspoken, frank and
11 fair, and I'm not afraid to ask questions, she said.
12
13 Commissioner Sherar said that he was surprised to learn that
14 he had sponsored so many resolutions.
15
16 Cathy McCann recommended that the Planning Board meeting
17 scheduled for tomorrow night be cancelled, now that the applicant
18 for the Red Road Commons is going back to the drawing board for
19 review.
20
21 Mr. O'Donniley said that in his opinion it would be
22 inappropriate to cancel the meeting on this short notice, and
23 that it should be for the Planning Board to decide as to how they
24 want to proceed tomorrow night.
25
26 Yvonne Beckman urged the Commission to keep the Planning
27 Board meetings at their regular schedule because now it is hard
28 to follow up with all the special meetings being scheduled.
29
30 Mr. O'Donniley said for clarification that the next meeting
31 is a regular scheduled meeting and the only reason a special
32 meeting was called is because of the lack of a quorum, and the
33 meeting was moved because of the conflict caused by this
34 Commission's scheduled meeting.
35
36 Jay Beckman said that concerning the parking variances for
37 Dr. Colsky's property, he hopes that the Commission will look at
38 the facts and the regulations involved, but that if the decision
39 is to grant the variances, that there is a very good chance that
40 the citizens will appeal that decision, and wanted to know the
41 procedure. Mr. Figueredo said that he would walk him through the
42 procedure for appealing after the meeting.
43
44 Bob Welsh said that he is trying to legalize weekend lawn
45 work. He said that he went around to his neighbors with a
46 petition calling for the right to put grass clippings, leaves and
47 branches in their trash piles, seven days a week, and also to
48 have the right to share their trash piles with their neighbors.
49
REGULAR CITY COMMISSION 4
MINUTES - January 4, 2005
1 Tim Merker said that nothing has been done about the code
2 violations on the property adjacent to his. Ms. Davis asked Mr.
3 Merker to call her office.
4
5 Sarah Tompkins talked about the 13th annual MLK Parade,
6 taking place on Saturday, January 8th, beginning at 10:00 a.m.
7 and urged the Commission to participate. At that time there will
8 also be a ribbon cutting ceremony for the MLK Boulevard. They
9 will also be honoring nine pioneers of South Miami.
10
11 Donna Fries said that SW 66th and 64th Street are areas with
12 a lot of traffic problems and urged the Commission to do
13 something with traffic calming there. She said that her
14 neighborhood has benefited greatly from traffic calming devices.
15 It allows kids to walk and ride bicycles on the street, and it
16 has also dramatically decreased traffic in that area.
17
18 Commissioner Birts- Cooper, with reference to the above
19 comment, said that the issue was addressed already last year and
20 that Ajibola has been working on it. Ajibola then continued to
21 explain that these areas with traffic problems are indeed within
22 his plans to alleviate the problems.
23
24 Tim Merker (tape inaudible)
25
26 Levy Kelly said that the CRA should not be put on the
27 ballot. (tape inaudible)
28
29 John E. Smith reading from his 2005 "Wish List" mentioned
30 among others: hopes that the 73rd Street garage be resolved; also
31 the development of 62nd Avenue; the construction of bike lanes;
32 and, the landscaping at US1 and Sunset Drive.(tape inaudible)
33
34 Chris Cook - Yarborough announced that one of the Larkin's
35 family members passed away this week.
36
37 Sharon McCain referred to Commissioner Sherar's CRA
38 referendum proposal; workshops; police cars. (tape inaudible)
39
40 After there were no more speakers, the Public Remarks
41 section was closed.
42
43 At this point Commissioner Sherar pulled item nos. 4 and 5
44 from the Consent Agenda (now nos. 5 and 6).
45
46
47
48 CONSENT
49 (None)
REGULAR CITY COMMISSION 5
MINUTES - January 4, 2005
1
2
3
4
5
6
ORDINANCE (S) SECOND READING PUBLIC HEARING (S)
(None)
RESOLUTION (S) /PUBLIC HEARING (S)
4. A RESOLUTION OF THE MAYOR & CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A REQUEST FOR
APPROVAL OF THE FOLLOWING TWO PARKING VARIANCES IN
ORDER TO PERMIT PROPERTY LOCATED AT 6230 SW 70TH STREET
IN AN "RO" RESIDENTIAL OFFICE ZONING USE DISTRICT TO BE
USED AS A COMMERCIAL OFFICE BUILDING: (1) VARIANCE FROM
SECTION 20- 4.4(B)(10) OF THE LAND DEVELOPMENT CODE TO
ALLOW FOUR OFF - STREET PARKING SPACES WHERE THE REQUIRED
OFF - STREET PARKING IS FIVE SPACES; (2) VARIANCE FROM
SECTION 20- 4.4(F) (3) OF THE LAND DEVELOPMENT CODE TO
ALLOW REQUIRED PARKING TO BE LOCATED IN THE FRONT
SETBACK AREA WHICH IS PROHIBITED IN THE RO ZONING USE
DISTRICT: AND PROVIDING FOR AN EFFECTIVE DATE. 4/5
(Deferred 12/07/04 & 12121104)
(The request for these two parking variances was denied
9121104 on a 4 -1 vote)
(Commissioner Birts- Cooper)
Moved by Commissioner Sherar, seconded by Commissioner
Birts- Cooper to approve this item.
Mr. O'Donniley explained that the applicant would be
required to have five parking spaces based upon the size of the
structure. According to staff's opinion, these could be
provided on site. The applicant has come forward and is
proposing to save several of the large oak trees currently
located in the front yard of the property. Due to the
configuration of the site and the location of the structure,
parking spaces will be required to be placed in the front yard,
including the setback area.
This application was denied by the Commission on September
21, 2004, with four votes against and one in favor; the
Commission later approved a motion to reconsider the vote, at
its November 16, 2004 meeting. Mr. O'Donniley continued to
explain that staff's interpretation of Section 20- 6.1(3)(e) of
the Land Development Code (LDC) is that a reconsideration of a
denied application can be considered if the majority of the
City Commission approves; however, the actual reconsideration
of the case must be scheduled not earlier than six months after
the denial, and that would be in April, 2005. He said that
REGULAR CITY COMMISSION 6
MINUTES - January 4, 2005
staff continues to support the variances, and that they were
supported by the Planning Board as well, as long as it is held
in compliance with the LDC. The purpose of the LDC's regulation
is primarily to protect neighborhoods from having to return
meeting after meeting to oppose or support a particular
application. It is also for the purpose of preventing setting a
precedent.
Attorney Figueredo said that it is important for the record
to address the LDC, in case that this item is appealed, we have
something in the record that basically establishes this
Commission's ability to consider the matter. There is a
provision in the Code of Ordinances that allows matters to be
brought for reconsideration. The LDC provision specifically
provides that an appeal of a denial of a variance cannot be
brought back for reconsideration. According to Robert's Rules
of Order (RRO) , when there is a motion to reconsider a vote,
which is what occurred in this instance, it is not a motion to
reconsider the matter which would have required a majority vote
by this Commission to bring the matter back in six months. In
the absence of a majority vote of the Commission, this matter
could not be brought back before this Commission for one year.
However, Commissioner Birts - Cooper's motion was to reconsider
the vote. The distinction there is that pursuant to RRO, when
you reconsider the vote, it has the effect of suspending all
prior actions; therefore, by suspending the prior action, the
denial in itself is suspended. The LDC only speaks to denials.
Since the denial has been suspended by a successful motion to
reconsider, that provision of the LDC would not apply to this
proceeding; so, pursuant to RRO, this Commission can consider
this matter.
Mr. Figueredo then proceeded to swear in the speakers, and
the Mayor opened the floor for public hearing.
Jay Beckman said that this request must be decided based on
the facts of the LDC. The facts in the LDC do not support these
variances, therefore the request for these variances should be
denied, he urged. Mr. Beckman then continued to refer to the
LDC.
Cathy McCan questioned the legality of this being on the
Agenda, and said that she would use some common sense instead
of some legal opinion. She referred to the Code of Ordinances
(Motion to reconsider) saying that reconsideration of a vote
must be done at the same meeting. Mr. Figueredo explained that
there is a following sentence on that provision saying that:
"Nothing herein shall be construed to prevent any member of the
commission from making or remaking the same or any other motion
at a subsequent meeting of the commission." She said that the
REGULAR CITY COMMISSION 7
MINUTES - January 4, 2005
way that this matter was advertised was not as a
reconsideration of the vote, but as reconsideration of the
variance. She said that in order to put the same item on the
agenda again it must go back to the Planning Board, and that
the applicant must pay for the cost of mailings and notices.
Mr. O'Donniley explained that the applicant is required to
pay for the application fee when applying; however, there is no
subsequent charge if the meeting is deferred by this Board
because that would not be appropriate. Ms. McCann said that she
feels that this Commission has an obligation to follow the
rules of the LDC, and that is to wait for a period of six
months before an item may be brought back before them; besides,
this is a very dangerous precedent to be setting. Ms. McCann
said that history will tell that this has not been done before.
Mayor Russell clarified that SPG was brought back within a
couple of weeks by a dissenting vote. Ms. McCann said that the
City should abide by the Comp Plan and the LDC, which
stipulates the six months waiting period.
Commissioner Sherar said that he disagrees with Ms. McCann.
He said that he agrees with Mr. Figueredo; they made a decision
and now should move on to the next issue.
Dean Whitman said that this is inconsistent with the Comp
Plan. (tape inaudible)
Mr. O'Donniley explained that the 1982 Comprehensive Plan
has no effect here; it has been superceded, and he urged the
Commission not to consider it because they would be considering
matters that are not law and that they will be committing an
error if they do not disregard it. Mr. O'Donniley then
continued to explain the basis for the hardship in this case,
one of them being the fact that the structure is where it is
and cannot be removed to comply with the setback requirements.
Donna Fries said that at a previous meeting on this matter,
the City Attorney provided the Commission with the hardship
definition. Mr. O'Donniley has provided you with a different
hardship definition; she then warned them about a potential
lawsuit due to this discrepancy. She said that Dr. Colsky may
have other options, such as leasing an easement through the
driveway; renting parking spaces from the 7000 building; or
keeping it as a single- family residential. There are options
for this property, she reiterated. She said that the spirit of
reconsideration is generally when somebody misunderstands what
has transpired, but if there is a different information that
has been forwarded to the Commission, she suggested that they
bring it to the attention of the people here before the public
hearing while it is opened; that would eliminate all other
REGULAR CITY COMMISSION 8
MINUTES - January 4, 2005
theories about why th,
referred to the issue
property, speaking about
Mr. Figueredo explained
hearing, what she was
apologized and withdrew
that any person giving
Commission in order to
examination.
.s is being reconsidered. She then
of preserving the trees within the
some information provided to her, and
that because this is a quasi - judicial
saying would constitute hearsay. She
the information. Mr. Figueredo said
testimony has to appear before the
testify and be available for cross
Mr. Figueredo clarified, regarding his comment on hardship,
that during the first quasi - judicial hearing he asked a
question as to whether or not there was any other reasonable
use for the property. If the property has reasonable uses that
are permitted under the zoning code, he continued, then that
would raise a certain question in my mind whether or not the
applicant in fact has a hardship because he has other uses for
the property that are permitted under the code. Mr. O'Donniley
can testify and provide, and should for the records, and
specifically provide this Commission as to why uses as a matter
of right can occur under an RO zoning.
Mayor Russell then referred to the conditions under the
following Planning Board Action at its July 13, 2004 meeting:
(1) Commercial offices including but not limited to medical,
dental, health related uses, daycare centers, and any other
similar use which has the same required parking are prohibited
from locating in the subject building. The Mayor requested that
this condition be added to Mr. O'Donniley's explanation.
Mr. O'Donniley then referred to page 30 of the LDC, under
"Permitted Use Schedule." He further explained for the records
that we do not regulate land to the extent that we require that
a specific use must be on the property. Zoning permits a
category of uses, and it is not proper or legal to impose that
requirement. It is a statement of his intent when he says that
he wishes to use it for medical records. The protection is the
limitation of uses that generates the same amount of parking
requirement, so that they do not generate the traffic. A
single - family dwelling is a special use; it is not permitted as
a matter of right.
Commissioner Sherar asked whether there is any distinction
between a `permitted use' and a special use.' Mr. Figueredo
said that in his opinion there is a distinction, because the
applicant does not have a right to a special use; that
application would have to come before this Commission, and you
would have to make certain findings as provided in the LDC. The
concept behind a hardship is, if he were able to use that
property today without having to come for any special approval,
REGULAR CITY COMMISSION 9
MINUTES - January 4, 2005
which is why I asked Mr. O'Donniley to list under RO those uses
which this applicant could go today and use this property
without getting an approval from this Commission; to me, he
said, those are reasonable uses, and my analysis has to be
limited to what he can do today on the property.
Mr. O'Donniley referred to page 96 of the LDC with regard to
Commissioner Sherar's question on parking.
Mr. O'Donniley continued saying that any use of this
property requires a special use, or is one that requires five
or more parking spaces.
Vice Mayor Palmer at this point directed to continue with
the public hearing.
David Landowne, a neighbor from across the street from the
subject property, said that he has lived there for the past
thirty years and has been coming to this hearings for twenty
now. He said that many people have tried to change this
property, and that many people have not been successful. The
only use that he has seen over these years is as a single -
family dwelling. He then urged the Commission to deny this
request once more; not to put a commercial property into the
residential neighborhood in order to preserve the residential
quality of our City.
Valerie Newman spoke against the request. (tape inaudible)
Commissioner Sherar said, in response to Ms. Newman's
comments that the reason for the $10 is that in Florida you are
allowed to put down $10 as valuable consideration. If you had
the deed, the doc stamps would tell us what the actual
consideration was.
Beth Schwartz spoke against the request. (tape inaudible)
Margaret Quinlan said that she had purchased the subject
property in December of 1988. She said that she had purchased
it and was never able to use it for what she had intended. She
said that she was told by the City Commission at the time that
it was the land that was zoned RO and not the building. She
said that she did everything that she could possibly do and was
never successful; therefore, she suffered a great financial
loss with that building. She rented it as a residential
property and finally sold it three years ago as residential and
lost about $40,000 on that property. She said that at some
point some engineers were thinking about raising the property
and have the parking underneath but that they were denied.
REGULAR CITY COMMISSION 1
MINUTES - January 4, 2005
1 Commissioner Sherar asked Ms. Quinlan whether the property
2 was occupied when she purchased it; she said that it was
3 vacant. She rented it about three months after acquiring it.
4
5 Chris Cook - Yarborough apologized to the Commission for his
6 previous outburst. He said that he has been coming here since
7 1984 or 85 to talk about this building and 70th Street which has
8 been the subject of traffic problems. He said that since 1982
9 nobody has been able to do anything with this building; and
10 since 1982, there have been studies showing that 70th Street
11 should be closed, just to the left of 62nd Avenue, and it hasn't
12 been able to be closed because there is a question about how
13 this property should be used. He questioned how many hours have
14 been spent trying to resolve this problem; it has cost
15 thousands of dollars trying to do something out of the
16 property. He urged the Commission to resolve it once and for
17 all by thinking that this is a problem that was created by the
18 City, and it is now the City's responsibility to correct the
19 mistake. It is a mistake to turn this property into a
20 commercial, and compounded by leaving 70th Street open to
21 intrusion from the commercial area to the east.
22
23 Mayor Russell said to correct a statement that was made
24 earlier about the subject property, that it is not a concrete
25 driveway. It is a pervious surface as drafted in the plan.
26
27 Sharon McCain spoke in favor of the request. She said that
28 this is what it is, it is RO, and that is what we are dealing
29 with right now. She said that even though she is not into
30 granting parking variances, but that this is a unique
31 situation. She said that if this were her house she would be
32 very upset about other people talking about what she should do
33 with her own piece of property. She then referred to the
34 pictures she took of the street and turned in with the City
35 Clerk back at the first hearing. The pictures show all the
36 various signs stopping people from driving through that street.
37 (tape inaudible from here on)
38
39 Dr. Colsky thanked the City Commission for reconsidering the
40 request for variances. He said that he has been working very
41 hard in cooperation with the Planning Department to approach
42 this with the proper site plan; he said that his intention is
43 for a general business office. He said that the main purpose
44 for his approach to the Planning Department was to preserve the
45 oak trees on the property and that is the main issue, and that
46 he appreciates the Commission's assistance in trying to
47 preserve them.
48
49 Mayor Russell asked Dr. Colsky whether he had approached the
50 adjacent property owner for access. He said that he had not been
REGULAR CITY COMMISSION 1 1
MINUTES - January 4, 2005
successful in doing that. Mayor Russell asked whether he was
expecting to use all four spaces; Dr. Colsky said that he does
not.
With no further speakers, the public hearing was closed.
Mr. Figueredo said, as a point of procedure, that since this
item was voted on and presumably was concluded, there were
probably a lot of discussions with other people because there was
no quasi - judicial proceeding anymore; however, as the result of
the subsequent motion to reconsider, disclosures now should be
made regarding any communications via internet or personal
conversations regarding this matter. He then asked for each
Commissioner to make a determination as to whether or not any of
that ex -parte communication would impair their ability to be
impartial towards their decision.
Mayor Russell said that since the last meeting, she did have
a conversation with Beth Schwartz of Cocoplum Terrace regarding
the bringing back of this item and the LDC, at which point she
sent her an email on the subject and she said that she has a
record of that. She said that she had no influence on making a
decision this evening.
Commissioner Sherar said that right after they had the first
hearing he contacted Dr. Colsky because he said that he did not
feel right about his decision, to let him know that if he wanted
him to bring it up for reconsideration that he would do it. He
said that Dr. Colsky never got back with him after that. He also
had conversations with Cathy about the interpretation of the law.
Also had conversations with an unknown person who accused him of
blackmail which of course did not have any influence on anything.
He then said that he had conversation with some other person who
he does not remember who it was, but that it was a tangential
conversation which did not have any bearing one way or another.
Commissioner wiscombe said that as far as conversations, the
only thing that was said to him was thank you by some people for
the way he voted. Other emails were forwarded my way asking why
we were dealing with this again, he said. He did not think that
any of those would have any influence on him at all.
Vice Mayor Palmer referred to the first hearing when she
said that she had received an email from Lori, but then she
realized that said email was about the garbage can instead and
she apologized for the mistake. This last time, she said, she
spoke with Ms. McCann concerning this issue and asked he about
the legal interpretation and Ms. McCann told her where to find it
in the book. As far as discussing the whole issue with anyone she
said that she did not.
REGULAR CITY COMMISSION
MINUTES - January 4, 2005
12
1
2 Commissioner Birts- Cooper said that she would like to make
3 it clear that she has not spoken to anyone, except for the
4 reporter that called her on the next day following the meeting.
5 Right after I made my decision that night, she continued, she
6 realized that she had made a mistake. She then said that it could
7 have been at a legal client meeting where Commissioner Sherar
8 said something to the effect of bringing the matter back. She
9 said that she then waited and waited and finally asked the City
10 Attorney whether she could bring it back and that he had said
11 yes. And that was my reason, because that night I felt that I was
12 flip- flopping and I think that it was something that either Cathy
13 or Beth said that made me change my mind, but really, that wasn't
14 my decision on that particular night, she concluded.
15
16 Commissioner Sherar moved to amend Section 2, page 2, line 4
17 of the resolution, to strike the word immediately and insert
18 thirty days.
19
20 Mayor Russell asked why he is proposing this amendment;
21 Commissioner Sherar said this is because Jay made a point that he
22 wants to appeal the decision; within the 30 -day period of appeal
23 Dr. Colsky can go ahead and make his changes; then, if the appeal
24 is successful, Dr. Colsky would have to put everything back the
25 way it was and start all over again. This is in an effort to
26 avoid all that trouble.
27
28 Commissioner Wiscombe asked for clarification whether
29 Commissioner Sherar wants the resolution to stay as it is for
30 thirty days, if granted, to allow time for filing the appeal.
31
32 Attorney Figueredo explained that the actual filing of the
33 appeal would stay the resolution.
34
35 Commissioner Wiscombe said that if this item passes the way
36 it is now, and we put a 30 -day hold on it for the appeal process
37 and the appeal process is lost, then Dr. Colsky may decide to
38 sell the property, and then we end up with a new buyer and new
39 problems.
40
41 Commissioner Sherar's amendment died for lack of a second.
42
43 Then Commissioner Sherar moved a second amendment to the
44 resolution, page one, Section 1, new paragraph (3) a variance is
45 granted from Section 20 -4.4 parking dimensions, page 96.3 of the
46 Land Development Code to permit the applicant to utilize two
47 parking spaces without the required "maneuvering area" for 6230
48 SW 70 Street. Nose -to -tail parking is permitted in the west
49 side setback for two cars.
50
REGULAR CITY COMMISSION 13
MINUTES - January 4, 2005
Commissioner Sherar explained that this way, in the front he
will still have the handicap spot, plus two additional spots, and
the forth spot, which is on the side of the house, would be a
nose -tail parking.
Commissioner Sherar's second amendment died for lack of a
second.
Commissioner Wiscombe said that he had made his position
clear the last time that they voted on this request and he is
still sticking with that.
Vice Mayor Palmer asked the City Attorney whether the RRO
overrides the LDC. Mr. Figueredo said that it would not, however,
they are not in consistence; what I have done, he said, is to
reconcile the two. There is a misconception that these two
provisions are in conflict; the RRO and the LDC are not in
conflict. The reason they are not in conflict is that the LDC
contemplates bringing the entire matter back for reconsideration;
however, that is not what occurred in this case; what
Commissioner Birts- Cooper did was to make a motion to reconsider
the vote, not the item. Under RRO, the reconsideration of the
vote suspends the prior action. The LDC precludes this Commission
from bringing back an item that has been denied prior to six
months. By reconsidering the vote, the denial is suspended, and
therefore the application of the LDC, in my opinion, does not
apply; therefore, the provisions of the RRO and the LDC are not
in conflict. But in the event that they were in conflict, in my
opinion, the LDC would prevail.
Vice ,Mayor Palmer then said that there are two things here,
reconsideration of the vote, or reconsideration of the variances,
and we are thinking of reconsideration of the vote. Attorney
Figueredo'said that the motion to reconsider the vote already
passed; in order to bring the matter back, at a prior Commission
meeting, the Commissioner made a motion to reconsider her vote.
At that point, it suspended the denial. Now the matter could be
brought back at a later Commission date, this is what is here
today. So the motion to reconsider the vote passed at a prior
Commission meeting. What you have before you today is now the
actual item. Vice Mayor Palmer said that after consideration of
the law and its interpretation, as well as reason and
recommendation of the law, she said to be concerned with regard
to the six-month waiting period. She said that she has no
prejudice based on her previous vote, she did not know the doctor
prior to these meetings, but that she has tried to weight
everything that is before her and still does not see a hardship.
She said that out of principle, at least they should wait the six
months. She said to bring back this matter now shows an
inconsistency on their part. She also said that this matter is
REGULAR CITY COMMISSION 14
MINUTES - January 4, 2005
not going to go away even if it is approved tonight. She said
that she would not be voting for this tonight because there is no
hardship, the house can be used, and that she thinks that they
would be bending the law.
At this time Commissioner Sherar moved to extend the meeting
for thirty minutes beyond 11:00 p.m. Seconded by Commissioner
Birts- Cooper, the motion to extend the meeting passed unanimously
by acclamation.
Commissioner Sherar said that the first time around he voted
the way that he thought was the right way to vote. He said that
he voted against this initially, because when you talked at that
meeting you fried my brain (referring to Beth), he said. He said
that he did not hear from Dr. Colsky's neighbor to the east. He
said that he does find that there is a hardship, for the
following reasons: the lot is not in a residential neighborhood,
it is in a RO zone; the property to the east is RO; the property
to the west is zoned RM -24; the total square lot of the area is
4,752 feet which does not meet any requirement in any of the
zoning category of this City; that the property has lost its
special use as a residence, because the applicant happened to
exercise his right as a property owner not to use it for any
purposes, and having lost that it is now unusable in any form
whatsoever`, to the extent that nobody in the audience went down
and bought the property to stop this from happening; to the
extent that I don't think that a family should be subjected to a
rear setback which varies from two feet to less than ten feet
which is below the setback requirements; that a family should not
be required to live in a house that has a side setback of three
feet, which is below the requirements of the neighborhood; that
the only yard that is consistent is the front yard; that it would
be difficult to find anybody that would want to live under those
conditions. Based upon those findings of fact, there is a
hardship pursuant to the definition of the LDC and I am going to
be voting for the variance, Commissioner Sherar concluded.
Mayor Russell said that for all of the above reasons
summarized by Commissioner Sherar, there is a hardship; this is a
unique piece of property; there isn't another parcel like it in
the City that I have been able to identify; I don't believe that
we are setting a precedent. She also said that they must deal
with this now under the existing zoning.
With no further comments or discussion,
approve this item failed by a 3 -2 vote:
Commissioner Wiscombe:
Commissioner Sherar:
REGULAR CITY COMMISSION is
MINUTES - January 4, 2005
the motion to
Nay
Yea
1
2
3
4
5
R
7
8
9
10
11
12
Vice Mayor Palmer: Nay
Commissioner Birts- Cooper: Yea
Mayor Russell: Yea
RESOLUTION (S)
Resolution No. 01 -05 -11980
5. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, AUTHORIZING THE CITY
MANAGER TO TRANSFER UP TO $15,900 PER YEAR OVER THREE
(3) YEARS FROM THE FEDERAL FORFEITURE - OPERATING ACCOUNT
#615- 1910 - 521 -6430 TO THE FEDERAL FORFEITURE -
LEASE /PURCHASE POLICE VEHICLES ACCOUNT #615- 1910 -521-
4450 AND AUTHORIZING THE CITY MANAGER TO ENTER INTO A
THREE (3) YEAR RENTAL AGREEMENT WITH ROYAL RENT -A -CAR
TO PROVIDE RENTAL VEHICLES USED IN SPECIAL OPERATIONS
AND INVESTIGATIONS BY THE POLICE DEPARTMENT; PROVIDING
FOR AN EFFECTIVE DATE. 3/5
(City Manager)
Moved by Commissioner Sherar, seconded by Commissioner
Wiscombe to approve this item.
Commissioner Sherar said that he pulled this item for
several reasons: one is because of the amount that is involved,
$15,000, and the need of getting other bids on this; the other
thing is that he happens to know that Royal Rent -A -Car has a
problem paying their parking tickets, because he represents
Dade County in the collection of parking tickets and they have
a whole pile of parking tickets out there. Furthermore, he said
that based upon his involvement with them in a litigation, he
does not want to get involved in a business transaction with
this type of company.
Mayor Russell questioned as to whether Commissioner Sherar
could vote on this matter since he is on litigation with Royal.
Mr. Figueredo said that he did speak with the Commissioner
about it. The specific conflict provision deals with financial
interest. Although he does not see it as a specific conflict,
he said that the Commissioner still needs to be able to make a
determination that despite the litigation, that he can be
objective in voting on this issue. If he can do that
determination, he would not need to recuse himself.
Commissioner Wiscombe asked to Commissioner Sherar whether
the County is still in litigation with Royal. The answer was
yes. Commissioner Wiscombe said, then, they have not been found
REGULAR CITY COMMISSION 16
MINUTES - January 4, 2005
guilty of anything. That's correct, Commissioner Sherar
responded. Commissioner Wiscombe said that he has a concern
with this because it sounds that Commissioner Sherar is coming
with bias.
Mayor Russell said to Commissioner Sherar that the easiest
thing to do would be for him to recuse himself so that they
could get on with the vote.
Commissioner Sherar said that if he had privilege
information about the litigation with Royal he would have
recused himself, but since everything is public information he
does not see the need for it.
Vice Mayor Palmer asked clarification for the break down of
the payments. Ms. Davis said that our payments are $633.55 per
month, per vehicle. Vice Mayor Palmer said that she wants to
support the Police Department as much as possible because when
she is sleeping, they are watching, and she has always received
top treatment from them, even before she came on this
Commission.
Commissioner Sherar said that the amount seems a little bit
high, and Ms. Davis concurred with him. At this time, Chief
Martinez explained that the good part about this company is
that the cars may be changed within the lease period when the
cars get `burned.' Ms. Davis said that this is a lease that
allows us to swap the cars out as needed. The Vice Mayor asked
about servicing the cars. The Chief explained that servicing is
included in the contract.
With no further comments or discussion, the motion to
approve this item passed by a 4 -1 vote:
Commissioner Wiscombe: Yea
Commissioner Sherar: Nay
Vice Mayor Palmer: Yea
Commissioner Birts- Cooper: Yea
Mayor Russell: Yea
41
42 Resolution No. 02 -05 -11981
43 6. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
44 CITY OF SOUTH MIAMI, FLORIDA, RELATING TO PROSECUTION
45 OF MUNICIPAL VIOLATIONS; APPROVING THE ENTRY INTO AN
46 AGREEMENT BETWEEN THE STATE OF FLORIDA, OFFICE OF THE
47 STATE ATTORNEY FOR THE ELEVENTH JUDICIAL CIRCUIT OF
48 FLORIDA AND THE CITY; AUTHORIZING THE REIMBURSEMENT OF
49 THE STATE FOR THE COST OF STATE ATTORNEY PROSECUTION OF
REGULAR CITY COMMISSION 1 7
MINUTES - January 4, 2005
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
CERTAIN CRIMINAL VIOLATIONS OF THE CITY'S CODE;
PROVIDING FOR AN EFFECTIVE DATE. 3/5
(City Manager)
Moved by Commissioner Sherar, seconded by Commissioner
Wiscombe to approve this item.
Commissioner Sherar spoke on this item which he pulled from
the Consent Agenda. He said that State Attorney Kathy
Fernandez - Rundle has a Constitutional obligation to enforce all
laws until they are declared unconstitutional. He then referred
to `across the street' (referring to "BT Gentlemen's Club"
formerly "Booby Trap ") where she could have supported the City
in its effort to stop the above - referenced establishment from
opening in the City. He said that she decided that it wasn't
constitutional. He said that he would vote against it because
he does not believe in supporting people who cannot do their
job.
With no further comments or discussion, the motion to
approve this item passed by a 3 -2 vote:
Commissioner Wiscombe: Yea
Commissioner Sherar: Nay
Vice Mayor Palmer: Yea
Commissioner Birts- Cooper: Nay
Mayor Russell: Yea
ORDINANCE (S) FIRST READING PUBLIC HEARING (S)
(None)
ORDINANCE (S) FIRST READING
(None)
COMMISSION REMARKS
There being no further business to come before this Body,
the meeting adjourned at 11:26 p.m.
Attest
Maria M. Menendez
City Clerk
REGULAR CITY COMMISSION
MINUTES - January 4, 2005
W]
Approved
Mary Scott Russell
Mayor