09-21-04 Item 14 / Item 15South Miami
SOUT
All- Ammica City
INCORPORATED
1927.
O R I 0 4' 2001
CITY OF SOUTH MIAMI
To: Honorable Mayor, Vice Mayor and Date: September 21, 2004
Commission Members
ITEMS No. and
From: Maria Davis d RE: Propose Referenda
City Manager
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 A SPECIAL ELECTION DATE
TO BE SET BY THE CITY COMMISSION 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 A
SPECIAL ELECTION DATE TO BE SET BY THE CITY COMMISSION;
PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT,
AND AN EFFECTIVE DATE.;
BACKGROUND
The above two 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 subject ordinances were placed before the City Commission at its July 20, 2004
meeting at which time the City Commission deferred the two ordinances and referred
them to the Planning Board for review and recommendation. The Planning Board
conducted a special meeting on July 29, 2004 in order to provide a recommendation to
the City Commission. The ordinances' were on the Commission's August 17, 2004
agenda, however, following discussion, no action could be taken due to the lack of a
quorum.
(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 l - 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.
(5) 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 map
amendment that affects five or fewer parcels o 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.
STAFF OBSERVATION- SPECIAL ELECTION
The deadline for placing referenda questions on November 2 °d ballot has passed. The
City Commission would need to establish a date for a special election. A special election
will cost approximately $9000.
RECOMMENDATION
Based upon the findings by the 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 \200 9- 21 -04 \CM Report Referendum Initiatives.doc