08-17-04 Item 15CITY OF SOUTH MIAMI
To: Honorable Mayor, Vice Mayor and Date: August 17, 2004
Commission Members
% ITEM No. af
From: Maria Davis RE: Proposed Referenda
City Manager 16!*K
ORDINANCES
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A CHARTER
AMENDMENT; PRESENTING AN INITIATIVE TO LIMIT BUILDING
HEIGHT AND DENSITY WITHIN SINGLE - FAMILY ZONE AREAS TO
THE ELECTORATE OF THE CITY AT THE NOVEMBER 2, 2004
ELECTION; PROVIDING FOR SEVERABILITY, ORDINANCES IN
CONFLICT, AND AN EFFECTIVE DATE
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A CHARTER
AMENDMENT; PRESENTING AN INITIATIVE TO LIMIT BUILDING
HEIGHT AND DENSITY TO THE ELECTORATE OF THE CITY AT
THE NOVEMBER 2, 2004 ELECTION; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE
DATE.
BACKGROUND
The above two ordinances were placed before the City Commission at its July 20, 2004
meeting. The ordinances would present to the voters of South Miami, amendments to the
City Charter. One ordinance would require voter approval to allow the height of buildings
in the vicinity of single family zoned areas to exceed two stories. The second ordinance
would require voter approval to allow the height of buildings to exceed four stories.
The ordinances were referred to the Planning Board for review and recommendation. The
Board conducted a special meeting on July 29, 2004 in order to provide a
recommendation to the City Commission. In order for the two ordinances to be on the
November 2, 2004 ballot the Commission must approve the ordinances at two readings
prior to September 2, 2004.
(2)
PLANNING BOARD FINDINGS
(1) The referral of the two ordinances to the Board is appropriate under Section 163 of
the Florida Statutes because the proposed initiatives include land use questions which
must be reviewed by the Planning Board based on the adopted comprehensive plan (FL
Statutes 163.3174 (a) (c)), and therefore fall within the purview of the City's Local
Planning Agency. The Planning Board is the "LPA" designated within the city.
(2) The applicable question is as follows: Is the referenda consistent with a
Comprehensive Plan which may contain specific height limits for areas of the City and
provides a process by which theses height limits may be changed? The proposed
referenda may be considered as replacing the State mandated process for amending the
Plan or amending the land development code. The test for whether the referenda are
consistent with the comprehensive plan requires an examination of the content of the
jurisdiction's adopted comprehensive plan.
(3) The South Miami Comprehensive Plan `s Chapter 1- Future Land Use Element and
the Future Land Use Map (FLUM) clearly establishes height limits for the designated
land use categories. Certain sections, such as the Transit Oriented Development District
(TODD) future land use category, contain the provision for "flexible heights up to eight
stories." The TODD future land use also contains mandating language that "permitted
heights and intensities shall be established in the land development code"
(4) Similar mandated language is found in the Mixed Use Commercial /Residential (Four
Story) Land Use Category which includes specific language permitting four stories. Other
height limits are set forth in the Public/ Institutional Land Use Category. A number of
policies in the Plan mandate that "incentives" to encourage mixed use and increased
height are set out within certain land use districts.
(S) The Board expressed an awareness of the great deference given to referenda but the
subject proposed referenda are not consistent with the language contained within the
Comprehensive Plan cited above. Other jurisdictions have enacted referendum
requirements. However, their adopted comprehensive plans may not contain specific
height provisions or policies which mandate "incentives as are contained within the
South Miami Comprehensive Plan. In the absence of an amendment to the
Comprehensive Plan to address the inconsistent provisions, the other method to regulate
height limits are to amend the Comprehensive Plan and the Land Development Code
(zoning).
PLANNING BOARD RECOMMENDATIONS
The Board at its July 29, 2004 special meeting, moved to approve the following
recommendation by a vote of 4 ayes 2 nays (Gibson, Illas) : the two proposed referenda
allowing heights to be established by vote of the electorate would not be consistent with
the provisions of the Comprehensive Plan.
(3)
The Planning Board also advised that if the City Commission wishes to seek additional
input as to whether the proposed referendum initiatives would be consistent with the
adopted Comprehensive Plan, the Commission can refer this question to the Department
of Community Affairs (DCA). DCA is the state agency responsible for plan amendments
and reviews of consistency.
The Planning Board also noted that if the City Commission wanted to implement the
objectives of the two proposed referendum initiatives it could consider this through the
amendment process set out in the statutes.
STAFF OBSERVATION- LANGUAGE PROBLEMS
Apart from the consistency issue addressed by the Board, the Planning staff - in
consultation with the City Attorney - found problems with some of the language in the
two ordinances as follows:
(1) The title of the ordinance pertaining to height of buildings next to single family
zones should be amended to remove the word "within" and substitute the words
"on property abutting."
(2) The word "density" in the ordinance title and ballot language of both ordinances
should be removed. The ballot language only addresses height of buildings. There
are no references to the standard density terms of "units per acre" or "floor -area-
ratio."
(3) The language referring to the height of buildings in the single family zone
ordinance should be modified to read "two stories or 25 feet" and "two stories or
30 feet."
(4) In both ordinances it is not clear as to when an ordinance or resolution affecting
height is to be submitted to the electorate ( i.e. before first reading, after first
reading). This could be clarified by changing the word "pass" to "adopt."
STAFF OBSERVATION- PROCEDURES
It is not clear if the referenda contain provisions for appeal. In addition, the proposed
referenda do not offer an applicant equal access to a referendum to challenge a denial by
the City Commission. Property rights require a balance and the proposed referenda
involve input where one set of property rights is favored over another without any criteria
for measuring impact or standing. State law already provides mechanisms for owners,
developers and "affected" nearby owners to challenge plan amendments or zone changes.
STAFF OBSERVATION- ECONOMIC IMPACT
There is concern that referenda of this type could discourage economic investment,
specifically in commercial areas of the City. This would contribute to the continuing
trend of commercial properties paying an ever decreasing amount of property taxes,
(4)
while an ever increasing burden is carried by residential owners. This fact is spelled out
and illustrated in the City Manager's Budget message contained in the City's Proposed
Budget 2004 -2005 document (p.III).
STAFF OBSERVATION- FLA. STATUTE PROBLEM
In addition to the above concerns, it is important to note that a section of Florida Statutes
would actually make implementation of the charter amendment illegal for five or fewer
parcels. Florida State Statute Section 163 -3167 (12) reads as follows:
"An initiative or referendum process in regard to any development order
or in regard to any local comprehensive plan amendment or m a
amendment that affects five or fewer parcels of land is prohibited"
It would appear that this provision in the statute permits a referendum but reserves
this process for larger developments. In the case of South Miami, the key
language in the statute is " any development order." This term, development
order, is defined by statute and includes the act of granting zoning permission to
proceed with a development. Most zoning decisions within the City of South
Miami affect less than six parcels. Owners are not required to group applications
unless this is necessary to present a logical proposed zone change. The above
provision effectively eliminates referenda as a means of addressing height and
concerns with intensity of development on a case -by -case basis.
RECOMMENDATION
Based upon the findings bythe Planning Board the proposed referenda initiatives are not
consistent with the adopted Comprehensive Plan and the State statute prohibition issue as
shown above. It is recommended that the two proposed referenda not be presented to the
voters until further clarification on these issues can be obtained.
Attachments
Proposed ordinances (2)
Planning Board Minutes 7 -29 -04
MD/DOD /SAY
EAComm Items \2004 \8- 17 -04 \CM Report Referendum Initiatives.doc
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CITY OF SOUTH MIAMI
PLANNING BOARD
Special Meeting
Action Summary Minutes
Thursday, July 29, 2004
City Commission Chambers
7:30 P.M.
I. Call to Order and the Pledge of Allegiance to the Flag
Action: The meeting was called to order at 7:35 P.M.
Action: The Pledge of Allegiance was recited in unison.
IL Roll Call
Action: Mr. Morton, Chairperson, requested a roll call.
Board members present constituting a quorum: Mr. Morton, Ms. Gibson, Mr. Comendeiro,
Mr. Mann, Mr. Liddy, and Mr. Illas.
Board members absent: Ms Yates.
City staff present: Don O'Donniley (Planning Director), Sanford A. Youkilis (Planning
Consultant), Luis Figueredo, (City Attorney), Brian Edney (Video Support), and Patricia E.
Lauderman (Planning Board Secretary).
III. Planning Board Discussion Item:
Request of the City Commission for Planning Board review and recommendation on two
proposed Charter initiatives to limit the height of buildings:
(1) AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, RELATING TO A CHARTER AMENDMENT; PRESENTING
AN INITIATIVE TO LIMIT BUILDING HEIGHT AND DENSITY WITHIN SINGLE -
FAMILY ZONE AREAS TO THE ELECTORATE OF THE CITY AT THE NOVEMBER 2,
2004 ELECTION; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT,
AND AN EFFECTIVE DATE.
Planning Board Meeting
July 29, 2004
Page 2 of 4
(2) AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, RELATING TO A CHARTER AMENDMENT; PRESENTING
AN INITIATIVE TO LIMIT BUILDING HEIGHT AND DENSITY TO THE ELECTORATE
OF THE CITY AT THE NOVEMBER 2, 2004 ELECTION; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE DATE.
Note: Mr. O'Donniley recommended to the Board and staff to set a period of time of 7
minutes for each resident that would like to speak on tonight's items. The Board agreed
with the recommendation.
Action: Mr. Morton read both items into record. Mr. O'Donniley noted that Board and
residents received a revised copy of the ordinances that will be discussed tonight. The
revised ordinances reflects the language change as directed by City Commission from the
floor at their July 20, 2004 meeting. Furthermore, he explained that the City Commission
referred these items to the Planning Board for review. He also informed the Board he had
prepared a memorandum that provided a standard of review for the Planning Board in its
consideration of the proposed initiatives (items 20 and 21 of the City Commission's
Agenda for July 20, 2004). Additionally, Mr. O'Donniley provided verbal comments
along with the presentation of his memorandum. He indicated to the Board that Section
163 of the Florida Statute provides for the designation of the "Local Planning Agency"
(FL Statutes 163.3163 (14). The Planning Board is the "LPA" designated within the city.
Generally referendum issues fall outside the purview of the LPA unless the proposed
initiative would constitute an amendment to the adopted comprehensive plan, the land
development regulation or a land use code. (FL Statutes 163.3174 (a) (c)).
Chairman Morton inquired about the ordinances and specifically in regards to the
limitation of building height and density, he saw nothing in the ordinances that related to
density. Mr. O'Donniley responded that he was not involved in the drafting of the
ordinances and did not know the reason why density was not addressed. However, Mr.
Figueredo, the City's Attorney explained that Commissioner Sherar and Mr. Beckman
developed the ordinance and Commissioner Sherar submitted the draft ordinances to the
City Attorney's office. The City Attorney's role was to review the draft ordinances for
legal sufficiency and put them in ordinance form.
Planning staff presented a report on the proposed amendments explaining that the main
issue was if the proposed referenda effectively amend the Comprehensive Plan, land
regulations or land development code. The test for whether the referendum constitutes
amendment to the comprehensive plan land development regulations or land development
code requires an examination of the content with the jurisdiction's adopted comprehensive
plan.
The focus of his analysis, as stated in his report, was to determine if the proposed
referenda are consistent with the Comprehensive Plan. Goal 1, Objective 1.2, Policy 1.2.2
specifically addresses the Commerce Lane area and provides "the city shall pursue an
incentives program for redevelopment of the Commerce Lane Area, including mixed use
and flexible building heights in conjunction with a Transit Oriented Development District
and the Metrorail transit station." The Transit Oriented Development District (TODD) is a
specified land use category within the "Future Land Use Categories" section. The Transit
Planning Board Meeting
July 29, 2004
Page 3 of 4
Oriented Development District (TODD) future land use category contains the provision
for "flexible heights up to eight stories ". The TODD future land use also contains
mandating language that "permitted heights and intensities shall be established in the land
development code." Absent an amendment to the Comprehensive Plan, a referendum
allowing heights to be established by referendum would not be consistent with the
provisions of the Comprehensive Plan. The TODD category also mandates that "the city
shall pursue an incentives program for redevelopment including flexible building heights
and design standards to insure responsible, effective and aesthetically pleasing projects
result ".
Mr. O'Donniley stated that staff is aware of the great deference given to referenda but the
proposed referendum provisions are not consistent with the language contained with the
Comprehensive Plan cited above. Other jurisdictions have enacted referendum
requirements. However, their adopted comprehensive plans may not contain specific
height provisions as are contained within the City's Comprehensive Plan. Also, the Plan
contains specific policies mandate "incentives" to encourage mixed use and height set out
within certain land use districts.
Finally, Mr. O'Donniley concluded his presentation by stating that planning staff found
the proposed referendum initiatives to not be consistent with the South Miami
Comprehensive Plan. The City Commission can correct this problem through the
amendment process set out in the statutes.
At this time, Mr. Morton initiated the Open Discussion.
Speakers:
NAME ADDRESS SUPPORT /OPPOSE
Jay Beckman 6520 SW 65th Street Supported Initiative
Mr. Beckman disagreed with the conclusion that the proposed ordinances were in conflict with
the Comprehensive Plan.
Michael Miller 6796 SW 62nd Ave Neutral
Mr. Miller stated that back in 1996 and 1997 he attended Charettes that aimed at updating the
Master Comprehensive Plan. He urged the Board and staff to review the Master Comprehensive
Plan carefully especially the issue of the building heights and understand its implications on the
residents and business owners.
Walter Harris 7100 SW 62nd Ave Supported Initiative
Mr. Harris explained, in his view, that limiting the building height gave him some
assurance for the future that building heights will not be raised extensively.
Bob Mobley Opposed Initiative
Mr. Mobley urged the Board to consider this proposed ordinance carefully and not to vote
in haste but in a timely fashion.
Planning Board Meeting
July 29, 2004
Page 4 of 4
Valerie Newman 6910 SW 64th Ave Supported Initiative
Ms. Newman stated that she has attended many charettes and feels that the will of the
residents that are affected in the area is to limit building heights and this initiative would
do that.
John Edward Smith 7531 SW 64' Ct. Opposed Initiative
Mr. Smith stated that he does not support the proposed ordinance.
Beth Schwartz 6931 SW 62nd Ct. Supported Initiative
Ms. Schwartz supported the proposed ordinances and urged the Board members to limit
the building height for the area.
Mr. Morton closed the Public Discussion.
The Board and planning staff resumed discussing the ordinances. Mr. O'Donniley
reiterated that the test for whether the proposed referendum constitutes an amendment to
the Comprehensive Plan is spelled out by FL Statutes, therefore, the Board is being asked
to review the ordinances and determine if it is consistent with the Comprehensive Plan. He
added that should the Planning Board seek additional input as to whether the proposed
referendum initiatives would be consistent with the adopted Comprehensive Plan, the
Board can refer this question to the Department of Community Affairs (DCA). DCA is the
state agency responsible for the plan amendments and reviews of consistency.
Motion: Mr. Comendeiro motioned that both ordinances were found to be were
inconsistent with the Comprehensive Plan. Mr. Mann seconded the motion.
Vote: Ayes 4 Nays 2 (Ms. Gibson, Mr. Illas)
Mr. Liddy recommended to speed up the process and re- establish the correct wording of
the Comprehensive Plan.
IV. Future Meetings
August 10, 2004; August 24, 2004
V. Adjournment
Action: There being no further business before the Board, Mr. Morton adjourned the meeting at
9:45 PM.
DOD /SAY /pel
K: \PB\PB Minutes\2004 Minutes\PB MINS 7- 29- 04.doc
I ORDINANCE NO.
2
3 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
4 THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO A
5 CHARTER AMENDMENT; PRESENTING AN INITIATIVE TO LIMIT
6 BUILDING HEIGHT AND DENSITY WITHIN SINGLE - FAMILY
7 ZONE AREAS TO THE ELECTORATE OF THE CITY AT THE
8 NOVEMBER 2, 2004 ELECTION; PROVIDING FOR SEVERABILITY,
9 ORDINANCES IN CONFLICT, AND AN EFFECTIVE DATE.
10
11 WHEREAS, the Mayor and City Commission of the City of South Miami
12 pursuant to the requirements of section 5.03 of the Home Rule Charter of Miami -Dade
13 County and section 166.031, Florida Statutes, the city commission may by ordinance
14 submit to the voters a proposed amendment to its charter and schedule a special election
15 on the question not less than 60 days and not more than 120 days from the date the draft
16 is submitted; and,
17
18 WHEREAS, pursuant to section 9 -1.1 of the City of South Miami Code of
19 Ordinances, a public hearing shall be held not less than 60 days before the election and
20 copies of the proposed amendment shall be made available to the public less than 30 days
21 before the election; and,
22
23 WHEREAS, the Mayor and City Commission desire to present this ordinance to
24 the regularly scheduled meeting of the City Commission of the City of South Miami on
25 August 17, 2004.
26
27 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
28 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
29
30 Section 1. The following question shall be submitted to the electors of the City
31 of South Miami at the next general election:
32
33 Title: QUESTION: LIMITATION ON BUILDING HEIGHT AND DENSITY.
34
35 SHALL ARTICLE VI, OF THE CITY CHARTER,
36 "GENERAL PROVISIONS," BE AMENDED TO ADD
37 PARAGRAPH 15 TO PROVIDE:
38
39 EFFECTIVE UPON PASSAGE OF THIS AMENDMENT,
40 THE CITY COMMISSION SHALL NOT PASS ANY
41 ORDINANCE THAT ALLOWS A BUILDING TO
42 EXCEED A HEIGHT OF TWO STORIES AND 25 FEET
43 WITHIN 50 FEET, AND TWO STORIES AND 30 FEET
Additions shown by underlining and deletions shown by eve mg.
I WITHIN 100 FEET, OF A SINGLE - FAMILY
2 RESIDENTIAL ZONED PROPERTY LINE, WITHOUT
3 FIRST GETTING APPROVAL BY A VOTE OF THE
4 ELECTORS.
5
6 ANY INCREASE IN HEIGHT OR DENSITY AS DEFINED
7 ABOVE SHALL BE SUBJECT TO A VOTE OF THE
8 ELECTORS OF SOUTH MIAMI.
9
10 YES
11 NO
12
13 Summary: If the question is approved by a majority of the voters voting at the
14 November 2, 2004 election, the Charter of the City of South Miami shall be amended as
15 follows:
16
17 ARTICLE VI. General Provision
18
19 SECTION 15 Limitation on Building Height and Density
20
21 Effective upon passage of this amendment, the city
22 commission shall not pass any ordinance or resolution that
23 allows a building to exceed a height of two stories and 25 feet
24 within 50 feet and two stories and 30 feet within 100 feet, of
25 a single-family residential zoned property line, without first
26 eg_tting approval by a vote of the electors.
27
28
29 Section 2. The election shall be scheduled for November 2, 2004. If a majority
30 of voters voting in the election approve the amendment to the charter, all provisions of
31 the charter, the land development code and the code of ordinances in conflict shall be
32 repealed.
33
34 Section 3. If any section, clause, sentence, or phrase of this ordinance is for any
35 reason held invalid or unconstitutional by a court of competent jurisdiction, the holding
36 shall not affect the validity of the remaining portions of this ordinance.
37
38 Section 4. All ordinances or parts of ordinances in conflict with the provisions
39 of this ordinance are repealed.
40
41 Section 5. The definitions contained in Sections 20 -2.3 and 20 -7.5 of the city of
42 South Miami's Land Development Code shall apply to this ordinance.
43
Additions shown by underlining and deletions shown by e �°o Wig.
I Section 6. This ordinance shall be codified and included in the Code of
2 Ordinances.
3
4 Section 7. This ordinance shall take effect immediately upon enactment.
5
6 PASSED AND ADOPTED this day of 12004.
7
8 ATTEST:
9
10
11 CITY CLERK
12
13
14
15
16
17 READ AND APPROVED AS TO FORM
18
19
20 CITY ATTORNEY
21
APPROVED:
MAYOR
1 st Reading —
2"d Reading —
COMMISSION VOTE:
Mayor Russell:
Vice Mayor Palmer:
Commissioner Birts- Cooper:
Commissioner Sherar:
Commissioner Wiscombe:
Additions shown by underlining and deletions shown by ^�,°�.
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami -Dade County, Florida
STATE OF FLORIDA
COUNTY OF MIAMI -DADE:
Before the undersigned authority personally appeared
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SUPERVISOR, Legal Notices of the Miami Daily Business
Review f /k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami -Dade
County, Florida; that the attached copy of advertisement,
being 'a Legal Advertisement of Notice in the matter of
CITY OF SOUTH MIAMI- PUBLIC HEARINGS 8/17/04
ORD. RELATING TO A CHARTER AMENDMENT
in the XXXX Court,
was published in said newspaper in the issues of
08/06/2004
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami -Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Miami -Dade County,
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Sworn to and subscribed before me this
O6 day of AUGUST A.D. 2004
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