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11-18-94 SPECIAL
v NOTICE OF SPECIAL CITY COMMISSION MEETING There will be a Special Meeting of the South Miami City Commission on Friday November 18, 1994 at 5:00 P.M. in the Commission Chamber /City Hall, 6130 Sunset Drive, South Miami, FL 33143 to consider: An Ordinance of the City of South Miami, Florida amending Article VII of the Land Development Code by providing for a Special exception process for development within the Hometown District which does not strictly comply with the terms and provisions of the Hometown District Overlay Ordinance; providing for standards and procedures for such special exceptions; providing for severability, inclusion in the code and an effective date. Copies of the proposed Ordinance are available in the City Clerk's Office for your review. DONE under my hand and the Official Seal of the City of South Miami this 9th day of November, 1994. ATTEST: r May r Neil arver v Mayor: Neil Carver Vice Mayor: R. Paul Young Commissioner: Ann B. Bass Commissioner: Thomas Todd Cooper Commissioner: Tom Cunningham CITY COM USSION AGENDA Special City Commission Meeting Meeting date: November 18, 1994 6130 Sunset Drive, So. Miami, FL Time: 5:00 P.M. PURSUANT TO FLA STAT. 266.0105, THE CITY HEREBY ADVISES THE PUBLIC THAT IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THIS BOARD, AGENCY OR COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT ITS MEETING OR HEARING, HE OR SHE WILL NEED A RECORD OF THE PROCEEDINGS, AND THAT FOR SUCH PURPOSE, AFFECTED PERSON MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. THIS NOTICE DOES NOT CONSTITUTE CONSENT BY THE CITY FOR THE INTRODUCTION OR ADMISSION OR OTHERWISE INADMISSIBLE OR IRREVELANT EVIDENCE, NOR DOES IT AUTHORIZE CHALLENGES OR APPEALS NOT OTHERWISE ALLOWED BY LAW. CITY OF SOUTH MIAMI ORDINANCE NO. 6 -86 -1251 REQUIRES ALL PERSONS APPEARING IN A PAID OR REMUNERATED REPRESENTATIVE CAPACITY BEFORE THE CITY STAFF, BOARDS, COMMITTEES AND THE CITY COMMISSION, TO FILL OUT THE APPROPRIATE FORM AND FILE IT WITH THE CITY CLERK PRIOR TO ENGAGING IN LOBBYING ACTIVITIES. CALL TO ORDER A. Invocation B. Pledge of Allegiance to the Flag of the United States of America ITEMS FOR COMMISSION CONSIDERATION: AN ORDINANCE OF THE CITY OF SOUTH MIAMI, FLORIDA AMENDING ARTICLE VII OF THE LAND DEVELOPMENT CODE BY PROVIDING FOR A SPECIAL EXCEPTION PROCESS FOR DEVELOPMENT WITHIN THE HOMETOWN DISTRICT WHICH DOES NOT STRICTLY COMPLY WITH THE TERMS AND PROVISIONS OF THE HOMETOWN DISTRICT OVERLAY ORDINANCE; PROVIDING FOR STANDARDS AND PROCEDURES FOR SUCH SPECIAL EXCEPTIONS; PROVIDING FOR SEVERABILITY, INCLUSION IN THE CODE AND EFFECTIVE DATE. (Administration /P.B.) 4/5 I ORDINANCE NO. 2 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY 3 OF SOUTH MIAMI, FLORIDA AMENDING ARTICLE VII OF THE LAND 4 DEVELOPMENT CODE BY PROVIDING FOR A SPECIAL EXCEPTION 5 PROCESS FOR DEVELOPMENT WITHIN THE HOMETOWN DISTRICT 6 WHICH DOES NOT STRICTLY COMPLY WITH THE TERMS AND 7 PROVISIONS OF THE HOMETOWN DISTRICT OVERLAY ORDINANCE; 8 PROVIDING FOR STANDARDS AND PROCEDURES FOR SUCH SPECIAL 9 EXCEPTIONS, PROVIDING FOR SEVERABILITY; PROVIDING FOR 10 ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE DATE. 11 WHEREAS, in 1992 and 1993 the City of South Miami through a 12 joint effort, including an extensive design and analysis process, 13 which involved the City government, property owners, residents, 14 homeowners, merchants, consultants, committees, and South Miami 15 Hometown, Inc., determined .a desired future for the City's downtown 16 district; and, 17 WHEREAS, the City Commission has adopted development 18 regulations known as the Hometown District Overlay Ordinance to 19 foster that desired future for the downtown area; and 20 WHEREAS, that Ordinance contains detailed criteria for 21 development of land within the district covered by the regulations; 22 and 23 WHEREAS, the City Commission recognizes that there may be from 24 time to time acceptable alternative design proposals for given 25 sites which are not in strict compliance with some provisions of 26 the Hometown District regulations; and 27 WHEREAS, the City Commission is desirous of providing a public 28 hearings mechanism for considering such design proposals, and for 29 granting relief, if deemed appropriate, from the strict application 30 of the district regulations. 31 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 32 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 33 Section 1. That Article VII of the Land Development Code 34 is hereby amended to add the following sections: 35 20 -7.51 SPECIAL EXCEPTION. 36 A. The City Commission may by special exception waive strict 37 compliance with the provisions of the Hometown District 38 Overlay Ordinance. In granting a special exception, the 39 City Commission must find by substantial competent 40 evidence that: 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 1. The proposed development contributes to, promotes and encourages the improvement of the Hometown District and catalyzes other development as envisioned in the Hometown District regulations. 2. The proposed development is compatible with the land uses and development intensities prescribed by all applicable city regulations. 3. The proposed development must possess integrity of design compatible with the design criteria established for the Hometown District and with-the overall image of the City. 4. The proposed development shall be designed in a manner that provides for effective management of traffic (vehicular and pedestrian), parking, lighting, noise and waste generated by the development, and management of the impacts of the development on public facilities and services. 5. The proposed development does not expand the permitted uses within the Hometown District. 6. The proposed development will not have an unfavorable effect on the economy of the City of South Miami. 7. The proposed development, when considered cumulatively with other development, both presdnt and future, within the Hometown Distrrict, will not create excessive overcrowding or concentration of people or population. B. The City Commission, in granting any special exception, may prescribe any reasonable conditions, restrictions, and limitations it deems necessary or desirable, in order to preserve and promote the intent of the Hometown District Overlay Ordinance. C. Special exceptions, if granted, shall be valid only for the specific design shown in the plans and exhibits submitted as part of the special exception application, as provided in Section 20 -5.2 of the Land Development Code. All deviations from the requirements of the Hometown District Overlay Ordinance incorporated within and reflected on the site plan and exhibits shall be considered a part of the application. Approval of the site plan and exhibits by the City Commission shall constitute approval of the non -use deviations identified on the site plan and exhibits unless the City Commission approves a motion to the contrary. No further individual 1 or separate application for deviations approved by the 2 City Commission shall be required. If the applicant 3 wishes to make material changes to the design subsequent 4 to receiving a special exception, the applicant must 5 apply for a new special exception following the procedure 6 set forth herein. 7 D. Special exceptions, if granted, shall be valid if 8 development, as defined in Section 380.04, Florida 9 Statutes, commences within 24 months from the date of 10 final approval and is substantially completed within 5 11 years from the date of issuance of the first building 12 permit. The time for substantial completion may be 13 extended by the City Commission upon application filed 14 prior to the expiration of the substantial completion 15 period and upon demonstration of good cause. 16 20 -7.52 PROCEDURE FOR SPECIAL EXCEPTION. 17 18 A. Special exceptions under this Ordinance may be granted 19 only after two public hearings. The first public hearing 20 shall be before the Planning Board, at which time the 21 Planning Board shall review the project and provide to 22 the City Commission an advisory recommendation regarding 23 approval, approval with conditions, or disapproval. The 24 second public hearing shall be held before the City 25 Commission and shall be held no sooner than seven 26 calendar days following the Planning Board hearing. 27 Public notice requirements as specified in Section 20- 28 5.5(C) and (G), Applications Requiring Public Hearings, 29 shall be followed. 30 B. Requests for special exceptions under this Ordinance 31 shall be in a form acceptable to the City Manager and 32 shall include each exhibit required per Section 20- 33 7.3(B), Application for Development Permit, and per 34 Section 20 -7.4, Site Plan Requirements. In addition, the 35 City Commission at its discretion may require additional 36 exhibits and may defer approval of the special exception 37 application or schedule an additional public hearing or 38 hearings to review those exhibits. 39 C. The City Manager shall have authority to require 40 additional review and approval by the Environmental 41 Review and Preservation Board for developments involving 42 special exception, which review shall follow the 43 procedure set forth in Section 20 -5.11 of the Land 44 Development Code. 45 D. The City Commission may grant a special exception upon 46 four (4) affirmative votes of its members. 3 I Section 2. If any section, clause, sentence, or phrase of 2 this ordinance is for any reason held invalid or unconstitutional 3 by a court of competent jurisdiction, the holding shall not affect 4 the validity of the remaining portions of this ordinance. 5 Section 3. All ordinances or parts of ordinances in 6 conflict with the provisions of this ordinance are hereby repealed. 7 Section 4. This ordinance shall take effect immediately at 8 the time of its passage. 9 PASSED AND ADOPTED this day of 1994. 10 APPROVED: 11 12 MAYOR 13 ATTEST: 14 15 16 17 18 19 CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY hom*town.ord 4 TO: Mayor and Commission FROM: City Clerk RE: Item #4; SR District Frontage Requirements DATE: November 10, 1994 This item has been removed from consideration at this time and will be placed on the agenda of December 20, 1994. I I 1 ORDINANCE NO. 2 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY 3 OF SOUTH MIAMI, FLORIDA AMENDING SECTION 20 -3.5G OF THE 4 LAND DEVELOPMENT CODE, PROVIDING ELIMINATION OF FRONTAGE 5 DIMENSIONAL REQUIREMENTS IN "SR" DISTRICT; PROVIDING FOR 6 SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND 7 PROVIDING AN EFFECTIVE DATE. 8 WHEREAS, the City of South Miami enacted a Land Development 9 Code on October 25, 1989; and, 10 WHEREAS, the Land Development Code contains Section 20 -3.5G, 11 which provides minimum frontage requirements for nonresidential 12 districts; and, 13 WHEREAS, the minimum frontage requirement for all uses in the 14 "SR" Specialty Retail District is 50 feet; and, 15 WHEREAS, a 50 foot minimum frontage requirement for retail 16 commercial uses discourages traditionally scaled redevelopment and 17 discourages variety and texture that smaller buildings provide; 18 and, 19 WHEREAS, the Mayor and City Commission desire to eliminate the 20 minimum frontage requirement in the "SR" Specialty Retail District. 21 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 22 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 23 Section 1. That Section 20 -3.5G is amended by (a)• 24 inserting a "c" designating a footnote to the right of 115011, which 25 is located in the row identified as "Frontage (ft)" and the column 26 "SR" and by (b) adding footnote c at the bottom of page 62 to read: 27 c The frontage requirement does not apply to 28 uses _in the SR District; 29 _ 30 31 32 33 34 A copy of Section 20 -3.5G, as amended, is annexed and made a 35 part of this ordinance. 36 Section 2. If any section, clause, sentence, or phrase of 37 this ordinance is for any reason held invalid or unconstitutional 38 by a court of competent jurisdiction, the holding shall not affect 39 the validity of the remaining portions of this ordinance. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Section 3. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 4. This ordinance shall take effect immediately at the time of its passage. PASSED AND ADOPTED this day of , 1994. APPROVED: MAYOR ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY trcmt.om 2 SECTION 20 -3.5 DIMENSIONAL REQUIREMENTS Section 20 -3.5G DIMENSIONAL REQUIREMENTS NONRESIDENTIAL DISTRICTS REQUIRE24MU RO LO MO NR .SLR GR I Min. Lot Size Net Area (sq ft) 7,500 7,500 10,000 7,500 5,000 10,000 5,000 Frontage (ft) 75 75 100 75 50c 100 50 Min. Setbacks (ft) Front 25 20 15b 2 10b 20 20 Rear 20 15 10 IS 10 15 3 Side (Interior) 10 10 10 - - - Side (Street) 20 15 10 .7 job 15 15 Adj . Res. Dist. 25 25 25 25 25 25 25 Side (w /driveway) 20 20 20 20 20 20 20 Between Buildings 20 20 20 - - - - Max. Building Height Stories 2 2 4 2 4 2 2 Feet 25 30 50 25 50 30 30 Max. Building Coverage 30 - - - - - - Max. Impervious Coverage (%) 75 80 85 75 90 85 85 Max. Floor Area Ratio (FAR) .25 .70 1.60 .25 1.60 .80 .80 a 5' setback with wall opening adjacent to rear property line; no setback if no openings in wall. b Applies to round floor only; columns are g y; permitted within the set -back. Columns shall not be greater than 24 inches in diameter; columns on the property line shall not be closer to each other than 10 feet. The frontage requirement does not apply to grade level retail uses in the SR District; provided, however, that the grade level use occupies not less that 1200 net square feet. The frontage requirement applies to all other grade level uses and to all above grade level uses. Y_ I y TO: Mayor and Commission FROM: City Clerk RE: Agenda of November 15, 1994 DATE: November 10, 1994 Please be advised of the following agenda changes Item #4, change in SR district frontage requirements has been rescheduled for December 20, 1994. The Planning Board will hear this item on November 29th. Deferred:Resolution approving payment for Greg Borgognoni has been deferred for further review. /riw cc: City Manager City Attorney i i . f 1 TO: Mayor and Commission FROM: City Clerk RE: Item #4; SR District Frontage Requirements DATE: November 10, 1994 This item has been removed from consideration at this time and will be placed on the agenda of December 20, 1994. 1 ORDINANCE NO. 2 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY 3 OF SOUTH MIAMI, FLORIDA AMENDING SECTION 20 -3.5G OF THE 4 LAND DEVELOPMENT CODE, PROVIDING ELIMINATION OF FRONTAGE 5 DIMENSIONAL REQUIREMENTS IN "SR" DISTRICT; PROVIDING FOR 6 SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND 7 PROVIDING AN EFFECTIVE DATE. 8 WHEREAS, the City of South Miami enacted a Land Development 9 Code on October 25, 1989; and, 10 WHEREAS, the Land Development Code contains Section 20 -3.5G, 11 which provides minimum frontage requirements for nonresidential 12 districts; and, 13 WHEREAS, the minimum frontage requirement for all uses in the 14 "SR" Specialty Retail District is 50 feet; and, 15 WHEREAS, a 50 foot minimum frontage requirement for retail 16 commercial uses discourages traditionally scaled redevelopment and 17 discourages variety and texture that smaller buildings provide; 18 and, 19 WHEREAS, the Mayor and City Commission desire to eliminate the 20 minimum frontage requirement in the "SR" Specialty Retail District. 21 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 22 COMMISSION OF THE CITY OF SORTS MIAMI, FLORIDA: 23 Section 1. That Section 20 -3.5G is amended by (a)- 24 inserting a "c" designating a footnote to the right of 115011, which 25 is located in the row identified as "Frontage (ft)" and the column 26 "SRI' and by (b) adding footnote c at the bottom of page 62 to reads 27 c The frontage requirement does not apply to 28 uses -in the SR District; 29 - 30 31 32 33 34 A copy of Section 20 -3.5G, as amended, is annexed and made a 35 part of this ordinance. 36 Section 2. If any section, clause, sentence, or phrase of 37 this ordinance is for any reason held invalid or unconstitutional 38 by a court of competent jurisdiction, the holding shall not affect 39 the validity of the remaining portions of this ordinance. �l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Y Section 3. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 4. This ordinance shall take effect immediately at the time of its passage. PASSED AND ADOPTED this day of r 1994. APPROVED: ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY rrmt.ord E MAYOR 0 1 1 r SECTION 20 -3.5 DIMENSIONAL REOUIREMENTS Section 20 -3.5G DIMENSIONAL REQUIREMENTS NONRESIDENTIAL DISTRICTS REQU:rPMU NT RO LO MO NR SR GR I Min. Lot Size Net Area (sq ft) 7,500 7,500 10,000 7,500 5,000 10,000 5,000 Frontage (ft) 75 75 100 75 50c 100 50 Min. Setbacks (ft) Front 25 20 15b `. 10b 20 20 Rear 20 15 10 15 10 15 a Side (Interior) 10 10 10 - - - Side (Street) 20 15 10 ±.:: lob 15 15 Adj . Res. Dist. 25 25 25 1.5 25 25 25 Side (w /driveway) 20 20 20 20 20 20 20 Between Buildings 20 20 20 - - - - Max. Building Height Stories 2 2 4 2 4 2 2 Feet 25 30 50 25 50 30 30 Max. Building Coverage (a) 30 - - - - - - Max. Impervious Coverage ( %) 75 80 85 75 90 85 85 Max. Floor Area Ratio (FAR) .25 .70 1.60 .25 1.60 .80 .80 a 5' setback with wall opening adjacent to rear property line; no setback if no openings in wall. b Applies to ground floor only; columns are permitted within the set -back. Columns shall not be greater than 24 inches in diameter; columns on the property line shall not be closer to each other than 10 feet. The frontage requirement does not apply to grade level retail uses in the SR District; provided, however, that the grade level use occupies not less that 1200 net square feet. The frontage requirement applies to all other grade level uses and to all above grade level uses. 0 T7 Mayor: Neil Carver Vice Mayor: R. Paul Young Commissioner: Ann B. Bass Commissioner: Thomas Todd Cooper Commissioner: Tom Cunningham CITY COMNIISSION AGENDA City Commission Meeting Meeting date: November 15, 1994 6130 sunset Drive, So. Miami, FL Next Meeting date: December 6, 1994 Phone: (305) 663 -6340 PURSUANT TO FLA STAT. 266.0105, THE CITY HEREBY ADVISES THE PUBLIC THAT IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THIS BOARD, AGENCY OR COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT ITS MEETING OR HEARING, HE OR SHE WILL NEED A RECORD OF THE PROCEEDINGS, AND THAT FOR SUCH PURPOSE, AFFECTED PERSON MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. THIS NOTICE DOES NOT CONSTITUTE CONSENT BY THE CITY FOR THE INTRODUCTION OR ADMISSION OR OTHERWISE INADMISSIBLE OR IRREVELANT EVIDENCE, NOR DOES IT AUTHORIZE CHALLENGES OR APPEALS NOT OTHERWISE ALLOWED BY LAW. CITY OF SOUTH MIAMI ORDINANCE NO. 6 -86 -1251 REQUIRES ALL PERSONS APPEARING IN A PAID OR REMUNERATED REPRESENTATIVE CAPACITY BEFORE THE CITY STAFF, BOARDS, COMMITTEES AND THE CITY COMMISSION, TO FILL OUT THE APPROPRIATE FORM AND FILE IT WITH THE CITY CLERK PRIOR TO ENGAGING IN LOBBYING ACTIVITIES. CALL TO ORDER A. Invocation B. Pledge of Allegiance to the Flag of the United States of America C. Presentations ITEMS FOR COMMISSION CONSIDERATION 1) Approval of Minutes - November 1, 1994 2) City Manager's Report 3) City Attorney's Report November 15, 1994 Page 1 none CONSENT AGENDA ORDINANCES - SECOND READING AND PUBLIC HEARING 4. An Ordinance of the Mayor and City Commission of the City of South Miami, Florida amending Section 20 -3.5G of the Land Development Code, providing elimination of frontage dimensional requirements in "SR" District; providing for severability; providing for ordinances in conflict; and providing an effective date. (Commissioner Cooper) 4/5 RESOLUTIONS ,FOR PUBLIC HEARING Y1 5. A Resolution of the Mayor and the City Commission of the City of South Miami, Florida providing for cable television rates and charges for basic tier cable service and equipment in the City of South Miami by Cable Satellite of South Miami, Inc., effective September 1, 1993. (Administration) 3/5 RESOLUTIONS P � 54, 19 6. A Resolution of the Mayor and the City Commission of the City of South Miami, Florida, approving procedures for conducting quasi - judicial hearings. (Mayor Carver) 3/5 ORDINANCES - FIRST READING 7. An Ordinance of the Mayor and City Commission of the City of South Miami, Florida, amending Sections 20- 6.1(A) (2) (e) vii and 20- 6.1(E) (1) of the Land Development Code, eliminating appeals to the City Commission from orders of the Code Enforcement Board; providing for severability; providing for ordinances in conflict; and providing and effective date. (Mayor Carver) 3/5 November 15, 1994 Page 2 8. An Ordinance of the City of South Miami, Florida amending Section 20- 3.1(C) of the Land Development Code of the City of South Miami, Florida "Official Zoning Map" to reflect the rezoning of a portion of the premises commonly known as the Bakery Centre bounded by Red Road, U.S. 1, SW 58 Avenue, and an Easterly extension of the Centerline of SW 71st Street and legally described hereinbelow from MO (Medium- Intensity Office) to SR (Specialty Retail /Residential) ; providing for ordinances in conflict; providing for severability; and providing an effective date. (Local Planning Agency /Adm.) 3/5 none REMARKS TABLED /DEFERRED I A Resolution of the Mayor and City Commission of the City of South Miami, Florida, granting a variance to permit the existing chickee but to remain, a portion (not more than 2 feet) of which is located in the required front setback, on property located in the RS-3 (Medium Lot Single Family Residential) Zoning District, and specifically located at 6930 SW 64 Avenue, South Miami, Florida 33143 and providing a local description. (Planning Board /Administration) (3j 415 11 A Resolution of the Mayor and City Commission of the City of South Miami, Florida, authorizing the City Manager to disburse the sum of $6,842.47 representing fees incurred for legal services by Gregory Borgognoni of Ruden, Barnett, ETAL, regarding the Bakery Centre, Stieglitz, and the Land Use Comprehensive Litigation and charging the disbursement to Account Number 2100 -4910: "Comprehensive Plan - Special Attorney." (Administration) (1) 3/5 November 15, 1994 Page 3 ITEM #5 TO: Mayor and Commission FROM: City Clerk RE: Cable Television resolution and public hearing DATE: November 10, 1994 Item #5 was prepared by the City's Special Counsel for Cable Television and was reviewed by our City Attorney. Special Counsel will be present to speak at the Commission meeting, so no memorandum is attached. /rjw 5 1 RBSOLUTION NO. 2 A RICSOLUTION OF THE MAYOR AND THE: CITY COMRISSION OF THE 3- CITY .. OF.' SOUTH KTAXI, FLORIDA, PROVIDING FOR CABLE 4 TELEVISION RATES AND CHARGES ZOR ReBIC TISR CAHLB SERVICE 5 AMID EQUIPMENT IN ''THE CITY .: OF SOUTH.. -. MIAMI' ' BY CAB1.8 6 SAT$LLITB . OF- SOUTH .M n=, INC, EPPECTIVS SBPTMMR - It 7 1993 8 WHEREAS, the South Miami City Commission is ..authorized 9 pursuant to Federal Communications Commission rules., and regulations 10 and .Ordinance' No.. ,22 -93 -1548 to. regulate. rates and -charges for 11 basic cable.television service and equipment in the City; and, 12 WHEREAS, the city -.Commission determined. that Cable: Satellite s 1,3 maximum .permitted rate$. and.' charges in .the: City ..of'. South . Miami 14 shall not exceed those rates and:charges.approved'in•the attachad 15 Rate Order. 16 NOW, THEREFORE, BE IT RESOLVED BY. THE MAYOR AND CITY 17 COMMISSION OF THE CITY.OF SOUTH MIAMI, FLORIDAt 18 Uction 1. The � Rata :Order, which is annexed and made part 19 of :-this, ;resolution- as ...,'App. 1, i's . approved and the City. -Manager is 20 authorized to order Cable. Satellite to. adjuat all rates .and. take 21 all actions necessary:to..comply with the Order-within-thirty (30)� 22 days ' of adoption o£ -this resolution. 23 Section ..That.. this resolution - .shall be • effective 24 immediately and .after •adoption hereof .. 25 :PASSED AND.ADOPTED this day of , 1994 26 APPRO'VBD t 27 2 B MAYOR 29 ATTESTt 30 31 CITY CLERK 32 33 34 35 46 READ AND APPROVED AS TO TORMi CITY ATTORNEY cablo.sas LS Citlj Of SouM Miami 6130 Sunset Drive. South Miami, Florida 33143 663 -6300 October 21, 1994 Mr. Rick Hensley Director of Operations Cable Satellite of South Miami, Inc. P. O. box 859 Miami, Florida 33197 Dear Mr. Hensley: Via Certified Mail Return Receipt ReQuested — L CITY MANAGER Pursuant to the rules and regulations of the Federal Communications Commission and Ordinance No. 22 -93 -1548 of the City of South Miami, enclosed please find the City Manager's report and proposed order with respect to Cable Satellite's rates in the City of South Miami as proposed in your FCC 393. This correspondence serves as formal notice to Cable Satellite of the City of South Miami's proposed Rate Order as required by 47 C.F.R. 76.942 and Cable Satellite is hereby invited to comment on the proposed order and directed to provide the City with a proposed refund plan. Such comments must be filed with the Office of the City Manager of the City of South Miami no later than 5:00 p.m. on the tenth day following the date hereof (October 21, 1994). The proposed rate order shall be placed before the City Commission at a duly noticed public hearing scheduled on November 15, 1994. Pursuant to Ordinance No. 22 -93 -1548, you are hereby ordered to notify each subscriber in writing of the date and time of the public hearing scheduled on Tuesday, November 15, 1994 before the City Commission. The meeting will start at 7:30 p.m. and the location will be the South Miami Commission Chambers, 6130 S.W. 72 St. Sincerely, dE-F- Ha City Manag / WFH :er c: Mayor & City Commission Leibowitz & Associates a \ft"Ify "City of Pleasant Living" MATTHEW L. LEIBOWITZ JOSEPH A. BELISLE ILA L. FELD KARSTEN AMLIE OF COUNSEL AARON P. SHAINIS LEE PELTZMAN� SANFORD L. BOHRER NOT ADMITTED TO FLORIDA BAR Mr. William F. Hampton City Manager City of South Miami 6130 Sunset Drive Miami, FL 33143 Dear Bill: LEIBOWITZ & ASSOCIATES, P.A. SUITE 1450 SUNBANK INTERNATIONAL CENTER ONE SOUTHEAST THIRD AVENUE MIAMI, FLORIDA 33131 -1715 TELEPHONE (305) 530 -1322 TELECOPIER (305) 530 -9417 October 11, 1994 Re: Cable Television Rate Regulation SUITE 500 1255 23 -0 STREET, N.W. WASHINGTON, D.C. 20037 Enclosed please find a proposed rate order to be issued to Cable Satellite with respect to the FCC 393 submission for rates in effect in the City of South Miami September 1, 1993. Federal law requires that where, as here, the franchising authority is disapproving the operator's requested rates, the authority must prepare a written decision and provide the cable operator with notice and the opportunity to comment. A draft letter to Cable Satellite forwarding the proposed rate order is enclosed. In addition, the City of South Miami, Ordinance No. 22 -93 -1548 requires that the City Manager prepare a report with respect to the proposed rates and that such report be placed before the City Commission at a duly noticed public hearing. The City Commission shall decide the matter by majority vote, after receiving public comment and affording the cable operator the opportunity to respond and adopt a resolution granting the specified rate relief. Cable Satellite is responsible for notifying all subscribers in writing of the date and time of the public hearing. SUMMARY OF RATE ORDER Cable Satellite of South Miami, Inc. submitted an identical FCC 393 to the City of South Miami and Metro -Dade County requesting approval for rates in effect on September 1, 1993. The Metro -Dade County Audit & Management Services Department analyzed the submission and all supporting documentation for accuracy and compliance with the FCC accounting rules for cable television rate regulation. Based on the findings of the County auditors, the Law Firm in cooperation with the Office of County Cable Services Director and the Office of the County Attorney recalculated Ki F1 Mr. William F. Hampton October 11, 1994 Page 2 the FCC 393 to determine maximum permitted rates. The proposed City Order differs from the Order dated October 4, 1994, issued by Metro -Dade County in the following respects: A. Restarts/Reconnects, etc: Based on the County auditor's findings, both the City and the County have ordered a reduction in the charge for a restart/reconnect/transfer /relocate from $26.50 to $9.24. However, unlike the County, the City Order distinguishes between manually effected changes and those that are accomplished more simply such as by computer entry. In the latter case, FCC rules provide that only a nominal fee may be charged. Thus, the City Order allows a maximum charge of $2.00 for these types of changes. B. Monthly lease of converter box. Notwithstanding FCC rules prohibiting the scrambling of basic signals, Cable Satellite continues to scramble all signals thereby requiring basic only subscribers with cable ready equipment to lease converter boxes. The Firm recommends the City disallow this charge absent an order from the FCC granting Cable Satellite a waiver of the rule. Allowing Cable Satellite to charge basic only subscribers for the lease of equipment would have the undesirable effect of rewarding Cable Satellite's on -going violation of FCC rules. C. Monthly Service Contract. Cable Satellite's offering of a monthly service charge is applicable to all subscribers and is therefore subject to the local franchising authority's jurisdiction. Since Cable Satellite did not request approval of this rate, we recommend prohibiting the charge. Moreover, it is our belief that an agreement of this type is either a contract for insurance or in the alternative a service warranty. Thus, pursuant to state law, Cable Satellite must qualify and obtain the applicable license to provide this service. Accordingly, the Firm recommends that the City refer this matter to both the State Attorney and the Commissioner of Insurance. D. Commercial Rates: Cable Satellite has not requested nor provided any justification for charging different rates to residential and commercial subscribers. Therefore, the City Order prohibits Cable Satellite from discriminating between residential and commercial customers with respect to changes associated with the basic tier. E. Bulk Rates: The FCC has grandfathered all bulk rate contracts between cable operators and multiple dwelling units entered prior to April 1, 1993. After that date, cable operators may offer bulk discounts to reasonable classifications of customers only where such discount is cost justified and the same rate is offered uniformly to customers within the same classification. The City Order requires that Cable Satellite comply with this FCC rule and submit all such classifications to the City. As indicated below, based on the information provided by Cable Satellite, all of the operators rates Mr. William F. Hampton October 11, 1994 Page 3 exceed the maximum charge permitted by FCC rules.' ' Prior to implementation of Rate Regulation, Cable Satellite changed a monthly fee of $5.00 for additional outlets. This is now a prohibited charge resulting in significant savings to subscribers. 247 CFR 76.980 provides, in part, that charges for any changes in service tiers initiated at the subscriber's request effected solely by computer entry or other similarly simple request shall be a nominal amount, not exceeding actual costs. s Cable Satellite did not supply an actual charge for this service. Thus, the requested rate is shown. N If A B C Maximum Approved Rate Actual Rate Reduction Monthly basic programming service tier on 9/1/93: $25.43 $25.48* (.05) Installation of unwired homes: 18.48 40.00 (21.52) Installation of prewired homes: 9.24 26.50 (17.26) Installation of additional connection at time of initial installation: 4.62 10.00 (5.38) Installation of additional connection requiring separate installation: 9.24 25.00 (15.76) Restart/reconnect/transfer /relocate:' (manual) 9.24 26.50 (17.26) Restart /rcconnect/transfer /relocate: (computer) 2.00 26.50 (24.50) Connect VCR - FM - AB' 3.08 8.79 ** (5.71) Changing Tiers (if any): 2.00 15.00 (13.00) Monthly remote control: 0.23 4.00 (3.77) Monthly lease of converter box: 1.53 2.00 (0.47) Monthly lease of converter box/basic only: 0.00 2.00 (2.00) Monthly service contract for equipment and installation: 0.00 2.00 (2.00) ' Prior to implementation of Rate Regulation, Cable Satellite changed a monthly fee of $5.00 for additional outlets. This is now a prohibited charge resulting in significant savings to subscribers. 247 CFR 76.980 provides, in part, that charges for any changes in service tiers initiated at the subscriber's request effected solely by computer entry or other similarly simple request shall be a nominal amount, not exceeding actual costs. s Cable Satellite did not supply an actual charge for this service. Thus, the requested rate is shown. N If Mr. William F. Hampton October 11, 1994 Page 4 * Reflects Cable Satellite's claimed maximum permitted rate for which operator is requesting approval. * * Requested rate used because Cable Satellite failed to show actual charge. To the extent Cable Satellite has charged any subscriber rates higher than those listed in Column A above, the City is entitled to order issuance of refunds to subscribers. FCC rules state that such refunds may be ordered from the date the operator implements the revised rates back to September 1, 1993 or twelve months, whichever period is shorter. In light of the fact that the City's issuance of a rate order has been delayed due to Cable Satellite's failure to provide information necessary to evaluate the FCC 393 at the time the rate request was submitted, the City should require a waiver of the twelve month limitation on refunds from Cable Satellite. Under similar circumstances, where cable operators have agreed to extend refund liability beyond twelve months, the Commission has granted such requests. Should Cable Satellite refuse to waive the limitation, we would suggest filing a Request for Waiver with the Federal Communications Commission. Cable Satellite has continuously attempted to evade rate regulation by the City or in the alternative increase the City's costs by filing numerous motions with the Federal Communications Commission including a Petition for Stay and Request for Waiver of the federal rule prohibiting scrambling signals on the basic tier, Petition for Revocation of the City's certification to regulate and a Request for Declaratory Ruling objecting to the City's procedures for implementing rate regulation. Nothwithstanding Cable Satellite's evasive actions, the City has, through the Firm, filed replies to all motions and proceeded in cooperation with Metro -Dade County, with the process of rate regulation. As a result, the City is now in a position to order subscriber refunds for overcharges and establish a limit on Cable Satellite's initial rates for basic tier service and equipment. Accordingly, the City's decision to regulate Cable Satellite's rates will clearly benefit the citizens of South Miami both retroactively and prospectively. Please call Matt or me once you have had the opportunity to review the enclosed documents to discuss the rate order and scheduling of the public hearing before the City Commission. Sind ly yo la L. Feld ILF /mdr cc: Earl Gallop, City Attorney, City of South Miami Thomas Logue, Assistant County Attorney, City of South Miami Mario Goderich, Acting Television Coordinator, Metro -Dade s y October_, 1994 Via Certified Mail Return Receipt Requested Mr. Rick Hensley Director of Operations Cable Satellite of South Miami, Inc. P.O. Box 859 Miami, Florida 33197 Dear Mr. Hensley: Pursuant to the rules and regulations of the Federal Communications Commission and Ordinance No. 22 -93 -1548 of the City of South Miami, enclosed please find the City Manager's report and proposed order with respect to Cable Satellite's rates in the City of South Miami as proposed in your FCC 393. This correspondence serves as formal notice to Cable Satellite of the City of South Miami's proposed Rate Order as required by 47 C.F.R. 76.942 and Cable Satellite is hereby invited to comment on the proposed order and directed to provide the City with a proposed refund plan. Such comments must be filed with the Office of the City Manager of the City of South Miami no later than 5:00 p.m. on the tenth day following the date hereof. The proposed rate order shall be placed before the City Commission at a duly noticed public hearing scheduled on . Pursuant to Ordinance No. 22 -93 -1548, you are hereby ordered to notify each subscriber in writing of the date and time of the public hearing. Sincerely yours, City Manager City of South Miami IN THE MATTER OF RATE REGULATION ) ESTABLISHING INITIAL RATES TO BE ) SET ON BASIC SERVICE TIER AND ) ACCOMPANYING EQUIPMENT BY ) CABLE SATELLITE OF SOUTH MIAMI, INC. ) PROPOSED ORDER SETTING RATES The City of South Miami, Florida hereby makes the following findings of fact and conclusions of law: JURISDICTION AND PROCEDURAL BACKGROUND 1. The City of South Miami (the "City ") issued Cable Satellite a franchise to operate a cable system in the City pursuant to Ordinance No. 20 -84 -1215 and amendments thereto. On October 25, 1993, the City of South Miami applied for FCC certification to regulate rates in FCC Community Unit FL 0529. The FCC granted this certification automatically on November 24, 1993. 2. On December 7, 1993, the City of South Miami adopted Ordinance No. 22- 93 -15 -48 adopting cable television rate regulation standards and criteria as promulgated by the Federal Communications Commission. 3. The City of South Miami gave notice to Cable Satellite of South Miami, Inc. on March 21, 1994, of its intent to regulate rates for basic cable service and equipment. Cable Satellite filed FCC Form 393 with the City on April 18, 1994. Within thirty days, the City exercised its right to order a 90 day extension to August 15, 1994 to issue its rate order. 4. Cable Satellite has attempted to evade regulation of its basic tier rates by the City of South Miami by filing with the Federal Communications Commission on July 12, 1994 a Petition for Revocation of Certification and a Request for Declaratory Ruling wherein the cable operator has challenged the City's procedural implementation of FCC rules and regulations. The City timely I filed extensive oppositions to both Cable Satellite submissions. As of the date hereof, the Commission has not ruled on either of Cable Satellite's pending pleadings. Therefore, pursuant to 47 CFR 76.914(d), the City may regulate the basic service rates of the franchisee. 5. Cable Satellite failed to provide the City with sufficient data upon which to evaluate the cable operator's rates and issue a rate order by August 15, 1994. Thus, on August 9, 1994, pursuant to 47 C.F.R. 76.933(c), the City issued an Accounting Order ordering Cable Satellite to keep an accurate account of all amounts received by reason of the rate in issue and on whose behalf such amounts were paid. 6. As of September 21, 1994, Cable Satellite had responded to the City's requests for supporting data. However, in clear violation of FCC rules, the operator refused to submit data as of March 21, 1994, the initial date of regulation. The City, therefore, had no other option but to proceed with its analysis on the best available data provided by the operator, recognizing that the operator did not comply with FCC rules and instructions. As a result, the City's analysis is based on operator supplied information from the time period on or before July 31, 1993. 7. Pursuant to Ordinance No. 22 -93 -1548, the City Manager of the City of South Miami has been authorized to evaluate Cable Satellite's rate proposal and report this evaluation to the City Commission. The City Manager's report shall be placed before the City Commission at a duly noticed public hearing, the date and time of which Cable Satellite shall notify each subscriber in writing. 8. Accordingly, the City Manager's findings, conclusions, and proposed order with respect to. Cable Satellite's FCC 393 cable television rate request for the City of South Miami, are provided below. However, the City reserves the right to further reduce such rates and order subscriber Pa ..S refunds pending issuance of determination by the FCC with respect to whether Cable Satellite violated the Commission's 1993 rate freeze order.` FINDINGS OF FACT 9. Cable Satellite has submitted FCC Form 393 to justify its rates for its basic service and equipment and installation charges to customers. Under federal law Cable Satellite has the burden of proving that its existing rate for basic service and associated equipment are reasonable and comply with 47 U.S.C. 543, and 47 C.F. R. Sections 76.922 and 76.923. 10. For the purposes of reviewing Cable Satellite's FCC 393 submission, the figures submitted by Cable Satellite were utilized except as indicated? 11. Line 122 Cable Satellite reported that the GNP -PI for the first quarter of 1993 was 124.1. The correct GNP -PI is 124.7. Accordingly, the City corrected this number. This adjustment benefits the cable operator because the maximum rate would be lower if GNP -PI 124.1 were utilized. 12. Line 201 and Line 202 Cable Satellite reported a monthly tier charge of $23.95 for a single tier consisting of 43 channels. The City's review of the channel line -up of the relevant date ' Cable Satellite is the subject of a pending Letter of Inquiry (File No. LOI -93 -6) from the Federal Communications Commission dated November 17, 1993. This letter of inquiry was issued in response to a complaint filed by Metro -Dade County based on potential evasions of the FCC rate freeze order by Cable Satellite identified by both the City and the County. z Several of the figures provided by Cable Satellite in its 393 submission were not adequately supported by the form 393, required attachments, or information submitted by Cable Satellite in response to the City's requests for additional information. In some cases Cable Satellite failed to provide necessary information even after being requested to do so. While this Order mandates a reduction in basic rates and related equipment and installation rates, this Order does not waive the City's right to seek further remedies for Cable SateLite's failure to provide the information as requested or to comply with FCC instructions for calculating certain data, which may include further reductions and refunds. 4 3 indicated a charge of $22.95 for tier 1 consisting of 16 channels and $1.00 for tier 2 consisting of 27 channels. Accordingly, the City amended lines 201 and 202 to reflect the charges and number of channels for the two tiers. 13. Line 503 This line requires the Cable operator to subtract line 501 and line 502 and divide the resulting number by line 501. Cable Satellite recorded the result of this calculation as a positive number, but the correct calculation results in a negative number. Also, the figures in lines 501 and 502 automatically recalculate as a result of the changes indicated above. Accordingly, the City amended this line to reflect the correct calculation. 14. Part III, Step A Hourly Service Charge, Line 2 This line requires the cable operator to state the percentage of costs and expenses related to customer equipment and installation activities used to receive the basic tier only and multi -tier equipment. In its 393 submission Cable Satellite estimated this figure at 25 %. However, Cable Satellite was not able to provide any documentary or other support for this figure when requested. Subsequently, Cable Satellite filed with the City its FCC Forms 1200 and 1205 representing this figure at 9.50 %. The City obtained from Cable Satellite a detailed internally- generated computer statement reporting that the relevant accounts when totaled indicated a percentage of 9.15 %, although Cable Satellite stated that this figure must be rounded up to 9.50% to capture costs and expenses not reflected in the computer statement. The City finds as a matter of fact that the computer report, with the adjustment indicated by Cable Satellite, is more reliable than the undocumented estimates. Accordingly, the City has amended this line to reflect 9.50 %. 15. Schedule A, Column G; Schedule C, Column G: Taxes These schedules reflects capital costs associated with service installation and maintenance of equipment. Cable Satellite included s 4 U as a cost certain federal income taxes. The FCC rules controlling at the time and the specific instructions for Form 393, however, prohibit a subchapter S Corporation like cable satellite from including federal taxes as a cost in these columns. Accordingly, the City removed the federal taxes from Column G on both schedules. 16. The calculations performed in FCC Form 393 are dependent upon each other and are cumulative. The changes indicated above automatically require the recalculation of other lines in Form 393 as a result of mathematical computations. These purely mathematical changes were also made although they are not individually discussed in this order. 17. In addition to Cable Satellite's failure to comply with the FCC instructions for submitting data "as of the date of regulation" and the operators incorrect calculations indicated above, Cable Satellite has failed to provide the City with data with respect to bulk rates and commercial rates charged since September 1, 1992. 18. Cable Satellite failed to provide any request, explanation or support for its monthly "Service Contract," notwithstanding the fact that the City notified the operator in November, 1993 of its concern that the "Service Contract" is not a permissible charge. Thus, Cable Satellite has not carried its burden of proof demonstrating that its monthly service contract for equipment and installation service is in compliance with FCC rules and regulations and Chapter 624 of the Florida Statutes governing insurance and/or Chapter 634 governing service warranties. 19. Cable Satellite continues to scramble all programming, including that available on the basic tier, thereby requiring basic only subscribers with cable ready receivers to lease a converter box at a monthly charge. This practice is in violation of 47 CFR 76.630(a) wherein scrambling or encryption of signals on the basic tier is prohibited. Cable Satellite has filed a Request for Waiver 5 .O /I or in the alternative, a Stay of the requirements of the rule with the FCC. The City has filed oppositions to Cable Satellite's motions, however, the Commission has not yet issued a ruling. All charges for converter boxes required to receive basic tier service are subject to regulation by the City. Where, as here, the need for the descrambling equipment to receive only basic is a violation of FCC rules, the charge is not permissible. 20. Based on the above discussion, the City finds that Cable Satellite has not carried its burden of proof demonstrating that a maximum permitted rate of $25.48 for the basic tier of service is reasonable and in compliance with 47 U.S.C. 543, and 47 C.F.R. sections 76.922 and 76.923. Cable Satellite' has not carried its burden of proof demonstrating that its rates for equipment and installation charges for the basic tier of service are reasonable and in compliance with 47 U.S.C. 543, and 47 C.F.R. sections 76.922 and 76.923. Accordingly, the City of South Miami finds that the best information supplied by Cable Satellite supports the City's adjustments indicated above and its determination of reasonable rates provided below. CONCLUSION 21. The City of South Miami finds that Cable Satellite has failed to carry its burden of proof to demonstrate the reasonableness of its rates and equipment and installation charges. Cable Satellite is hereby ordered to adjust its rates so as to charge a rate no higher than that approved by the City to any subscriber, notwithstanding whether such subscriber is a residential or commercial customer. In addition, Cable Satellite is ordered to charge bulk rates to customers only so long as such charges are cost justified and uniformly offered to all customers within reasonable classifications of similarly situated subscribers and to submit the definitions of all such classifications to the City. The City of South Miami, hereby orders Cable Satellite to implement the rates indicated below and Z Jr issue all refunds herein ordered, effective no later than the first subscriber bill issued thirty days after the City's adoption of this rate order? s Prior to rate regulation, Cable Satellite charged a monthly fee of $5.00 for additional outlets. This is now a prohibited charge under FCC rules and regulations. a Reflects Cable Satellite's claimed maximum permitted charge for which operator is requesting approval. S 47 CFR 76.980 provides, in part, that charges for any changes in service tiers initiated at the subscriber's requested effected solely by computer entry or other similarly simple request shall be a nominal amount, not exceeding actual costs. 6 Cable Satellite did not supply an actual charge for this service. Thus, the requested rate is shown. s 7 1� .. I , I I . 1. - 11 . , 1 _....___«..._.___............. . A B C Maximum Approved Rate Actual Rate Reduction Monthly basic programming service tier on 9/1/93: $25.43 $25.48° (.05) Installation of unwired homes: 18.48 40.00 (21.52) Installation of Under similar circumstances, where cable operators have agreed to extend refund liability beyond twelve months, the Commission has granted such requestsprewired homes: 9.24 26.50 (17.26) Installation of additional connection at time of initial installation: 4.62 10.00 (5.38) Installation of additional connection requiring separate installation: 9.24 25.00 (15.76) Restart /reconnect/transfer /relocates (manual) 9.24 26.50 (17.26) Restart /reconnect/transfer /relocate: (computer) 2.00 26.50 (24.50) Connect VCR - FM - AB 6 3.08 8.79 (5.71) Changing tiers (if any): 2.00 15.00 (13.00) Monthly remote control 0.23 4.00 (3.77) Monthly lease of converter box: 1.53 2.00 (0.47) s Prior to rate regulation, Cable Satellite charged a monthly fee of $5.00 for additional outlets. This is now a prohibited charge under FCC rules and regulations. a Reflects Cable Satellite's claimed maximum permitted charge for which operator is requesting approval. S 47 CFR 76.980 provides, in part, that charges for any changes in service tiers initiated at the subscriber's requested effected solely by computer entry or other similarly simple request shall be a nominal amount, not exceeding actual costs. 6 Cable Satellite did not supply an actual charge for this service. Thus, the requested rate is shown. s 7 1� .. I , I I . 1. - 11 . , 1 _....___«..._.___............. . Monthly lease of converter box/basic only: 0.00 2.00 (2.00) Monthly service contract for equipment and installation: 0.00 2.00 (2.00) 22. Pursuant to 47 C.F.R. section 76.942, the City of South Miami hereby orders Cable Satellite to refund to subscribers that portion of previously paid rates and charges in excess of the maximum amounts in Paragraph 20, Column A above. The refund period shall run from the date that Cable Satellite implements the rate reduction in accordance with this order back to September 1, 1993. Refunds must include interest in accordance with 47 C.F.R. 76.942(e). 23. Pursuant to 47 C.F.R. 76.922 (b)(3) Cable Satellite is hereby ordered to resubmit its FCC 1200 series rate justification to accurately reflect the corrected benchmark rate as approved herein. 24. Cable Satellite must keep adequate account and records reflecting the payment of refunds pursuant to this order. 25. Cable Satellite must keep adequate accounts and records of all amounts received with respect to the rates in issue, and on whose behalf such amounts were paid so that Cable Satellite is able to pay refunds if the FCC or the City issues an order requiring additional refunds. DONE and ORDERED this day of , 1994 at the City of South Miami, Florida. so, 8 CITY OF SOUTH MIAMI INTER- OFFICE MEMORANDUM To: Mayor & City Commission Date: November 10, 1994 11/15/94 Commission Agenda From,:Z ie Cox Re: Item # : Resolution Establishing City Manager Quasi- Judicial Procedures -for Boards Back rod und: As the result of recent case law, the City Attorney is advising that the City Commission adopt quasi-judicial procedures for the City Commission and the various City Boards to avoid legal challenge and to comply with precedents set in case law. This is good administrative practice. Recommendation: Approval 1. 2. 3. 9 0 Advantage to Cif: Provides for the requirements of case law. Disadvantages to City: None. This Ordinance is sponsored by the City Attorney. This Resolution creates quasi-judicial proceedings for Public Hearings. City of South Miami INTER— OFFICE MEMORANDUM TO: Mayor and City Commission South Miami Planning Board Environmental Review and Preservation Board City Manager FROM: Earl G. Gallop, City Attorney. L .� RE: Quasi - judicial hearing procedures DATE: November 9, 1994 This memorandum explains certain revisions that appear in the attached App.1 - Conduct of Quasi - Judicial Public Hearings procedures. Attorneys are now not required to be sworn. The function of the attorney is to represent the client. Attorneys normally do not give testimony and their argument may not be considered as evidence. As stated by the appellate court in National Advertising Company v. Broward County, 491 So.2d 1262 (Fla. 4th DCA 1986), "This court has repeatedly admonished that 'argument of counsel does not constitute evidence. "' Hearsay evidence may be used to explain other evidence in the record. However, hearsay cannot provide the basis for a decision unless it is admissible in a court of law. Traditional principals of due process, and the Right to Public Hearing provision of the Citizens' Bill of Rights of the Homerule Charter for Metropolitan Dade County, require that a party be given the opportunity "to conduct such cross - examination as may be required for a full and true disclosure of the facts." Decisions must be based on substantial competent evidence in the record. Supplementing the insurmountable problems examination. The hearing limited circumstances, to additional evidence. EGG /egg quaejud.mem G record is prohibited. It presents in affording the right to cross - may be continued, or re- opened under very allow the introduction and examination of City of South Miami INTER - OFFICE MEMORANDUM TO: Mayor and City Commission South Miami Planning Board Environmental Review and Preservation Board City Manager FROM: Earl G. Gallop, City Attorney(— � C RE: Quasi - judicial hearing procedures DATE: October 31, 1994 Recent judicial authorities instruct that site specific land use plan amendments and actions on applications for development permits, such as rezonings, variances and special uses, require quasi- judicial hearing and procedures. City commission and board members are prohibited from engaging in ex parte (private, off -the- record) communications. To satisfy these requirements, I prepared the attached procedures and "script" to assist the Mayor, City Commission and the'boards. As a matter of policy, rather than by requirement of law, the procedures should apply to the boards until further advice from counsel. The Florida appellate courts have not finally determined whether quasi- judicial procedures and the prohibition on ex parte communications apply to members of advisory boards. However, like the Florida Sunshine Law requirements for open meetings, the object of rules pertaining to local government judicial -like proceedings is to maintain the integrity of the government decision - making process. A Florida Attorney General Opinion to the contrary is of doubtful authority. In AGO 92 -48 (1992), the attorney general advised that the prohibition on ex parte communications in the Jennings v. Dade County decision does not apply to a decision of the South Florida Regional Planning Council to appeal a local development order under S 380.07 because the council acts in an advisory capacity to local governments in DRI matters. That legal opinion preceded the Florida Supreme Court opinion in Snyder v. Brevard County. In•Snyder, the supreme court decided that local government policy - applying (rather than policy- making) proceedings are quasi- judicial in nature. The decision did not distinguish between, nor address, final actions by the governing body of a local government or advisory actions by its boards. A quasi- judicial decision- making process assumes a "judicial atmosphere and procedure." Inherent in this atmosphere is the requirement that commission and board members refrain from off -the- record, private communications about a pending application with any rkvj Mayor and'City Commission October 31, . 1994 Page 2 representative of the applicant, members of the public, the staff, members of the same collegial body (additionally, a Sunshine Law violation), or with members of other collegial bodies. For instance, a member of the city commission and a member of the planning board should not discuss an application. Pre - hearing communications should be directed to city administration officials or the city attorney. The city manager and city attorney may discuss scheduling and procedural matters with the city commission and boards. Care should be taken not to discuss the merits of any application, or to otherwise influence the decision of the commission or boards outside of the public hearings. Commission and board members should disclose any ex parte communications. The disclosure should be in memorandum form and it should identify the party, date, time, place and content of the statement. The memorandum should be made as soon as possible after the.communication and be given to the city clerk to be placed in the public record for the application. Further inquiry about the communication might be made at a public hearing. Please contact me if you have any questions about the subject matter of-this memorandum or the attached documents. Copies of the "script" and quasi- judicial hearing procedures are annexed to this memorandum as App.l and App.2. SOa /egg /cam /quauijud.== 11 1 RESOLUTION NO. 2 A RESOLUTION OF THE MAYOR AND THE CITY COMMISSION OF THE 3 CITY OF SOUTH MIAMI, FLORIDA, APPROVING PROCEDURES FOR 4 CONDUCTING QUASI - JUDICIAL HEARINGS 5 WHEREAS, the City Commission of the City of South Miami 6 conducts hearings on site - specific applications for development 7 approval; and, 8 WHEREAS, the Florida Supreme Court in Board of County 9 Commissioners v. Brevard County, 627 So. 2d 469 (Fla. 1993) and other 10 judicial authorities determined that proceedings on site - specific 11 applications for development approval are quasi- judicial in nature; 12 and, 13 WHEREAS, quasi- judicial hearings must be conducted in a manner 14 to afford due process to all parties; and, 15 WHEREAS, the Florida Third District Court of Appeal in 16 Jennings v. Dade County, 589 So.2d 1337 (Fla. 3d DCA 1991) 17 prohibited private, off - the - record communications between 18 interested persons and members of quasi- judicial boards; and, 19 WHEREAS, the City Commission of the City of South Miami 20 desires to adopt rules of procedures the conduct of quasi- judicial 21 hearings. 22 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY 23 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 24 Section 1. The Rules of Procedure for the conduct of 25 quasi- judicial land use hearings which are annexed to this 26 resolution as App.2 are approved. 27 Section 2. The Rules of Procedure shall apply to all 28 proceedings on site - specific applications for development approval 29 before the City Commission. Paragraph 1.04, providing general 30 procedures regarding ex -parte communications, shall apply to all 31 proceedings on site - specific applications before the City 32 Commission, the Planning Board and the Environmental Review and 33 Preservation Board. 34 Section 3. The memoranda of the City Attorney dated 35 October 31, 1994 and November 9, 1994 regarding the procedures, and 36 the general "script" for conducting such hearings which is annexed 37 to this resolution as App.l, are accepted as guidance documents. 1 2 3 4 5 6 7 8 9 10 11 12 13 N Section 4. This Resolution shall take effect immediately at the time of its passage. PASSED AND ADOPTED this day of , 1994 APPROVED: MAYOR ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY quasjud.res 2 City of South Miami INTER —OFFICE MEMORANDUM APPENDIX 1 CONDUCT OF QUASI- JUDICIAL PUBLIC HEARINGS INCIDENTAL TO SITE SPECIFIC LAND USE PLAN AMENDMENTS, REZONINGS, WAIVERS, VARIANCES AND SPECIAL USE PERMITS. [THE MAYOR WILL READ THE FOLLOWING PARAGRAPHS PRIOR TO THE START OF THE QUASI - JUDICIAL PROCEEDING] All witnesses who will testify on any item in this portion of the Agenda must sign in and will be sworn by the Mayor. Attorneys will not be sworn because their statements are not evidence. Before addressing the City Commission, a person must state his or her name and whether he or she has been sworn. The hearing including the testimony will be recorded. Any person may retain and pay for a court reporter. Any such retained court reporter shall make his /her appearance known to the Clerk for the record. If you address the City Commission, you subject yourself to cross - examination. If you refuse to submit to cross - examination, the City Commission will not consider what you have said in its decision. All evidence relied upon by reasonably prudent persons in the conduct of their affairs may be considered in these proceedings, regardless of whether such evidence would be admissible in a court. Hearsay evidence may explain other evidence, but it shall not alone support a conclusion unless it would be admissible over objection in court. Demonstrative evidence and visual aids will be marked and made a part of the record. The material in the City Commission agenda packets will be considered as evidence without authentication. The decision of the City Commission must be based on substantial competent evidence in the record. The applicant has the burden of proving that the proposed action requested by the applicant is consistent with the City's comprehensive plan and meets the requirements of the land development code. The city staff will begin with giving a concise statement of the agenda item and staff's recommendation. The applicant will proceed first, followed by staff, then witnesses in favor of the application will testify, followed by witnesses in opposition. The applicant will be allowed to give rebuttal evidence. Cross - examination of witnesses is permitted at the conclusion of their testimony. The parties may make closing statements. After the applicant's concluding remarks, the hearing will be closed and no additional testimony, material, or argument will be allowed. The City Commission will then deliberate. [THE MAYOR WILL CALL THE FIRST ITEM AND ASR THE FOLLOWING QUESTIONS.] The first /next matter to be heard is Agenda Item number 1. The public hearing is open. 2. Each member of the staff who may testify will now be sworn. Each staff member is to identify himself /herself for the record. 3. Would staff briefly describe the nature of this agenda item. Would the applicant please state your name and be sworn. Please state on the record which items in the staff's report you object to. Do you stipulate to the staff .report and application's being entered into evidence? 4. Would the applicant please give your testimony regarding the items in question. Would.staff like to ask the applicant any questions? Would any Council member like the ask the applicant any questions? 5. Does the applicant have any further witnesses? [If there are other witnesses, the same procedure as above is followed.] 6. Does staff have any additional information other than what is included in the backup to the agenda item? Would the applicant like to ask the staff any questions? Does any Council member have any questions of staff? 7. Are there any interested persons who would like to testify in favor of the application? [If there are no interested persons who wish to testify, go on to number 8.] Please step forward, state your name and be sworn. Please give your testimony. 2 6 h Would the applicant like to ask the witness any questions? Would staff like to ask the witness any questions? Would any Council member like to ask the witness any questions? 8. Are there any interested persons who would like to testify against the application? [If there are no interested persons who wish to testify, go on to number 9.] Please step forward, state your name and be sworn. Please give your testimony. Would the applicant like to ask the witness any questions? Would staff like to ask the witness any questions? Would any Council member like to ask the witness any questions? 9. Would the staff like to make any concluding remarks? 10. Would the applicant like to make any concluding remarks? 11. The public hearing is closed. 12. The Commission will now deliberate. No further testimony will be taken and Commission members should not ask any further questions of persons presenting testimony. HGG \cam \9447cond.1 10/28/94 3 An—on ft- CitU of South Miami INTER — OFFICE MEMORANDUM APPENDIX 2 RULES OF PROCEDURE FOR CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, QUASI - JUDICIAL LAND USE HEARINGS. Section 1. PUBLIC HEARINGS - QUASI - JUDICIAL PROCEEDINGS. ' 1.01 INTENT. The intent of this section is to establish procedures which ensure procedural due process and maintain citizen access to the local government land use decision - making process. This policy shall be applied and interpreted in a manner recognizing both the legislative and judicial aspects of the local government land use decision - making process relating to site - specific parcels. 1.02 APPLICABILITY. These procedures shall apply to all site - specific land use plan amendments and site - specific rezonings, waivers, variances, special use permit and any other proceedings in which the City Commission of the City of South Miami, Florida, functions in a quasi- judicial capacity. 1.03 DEFINITIONS. (1) Application -- an application to the Commission for a site - specific land use plan amendment, or a site - specific rezoning, waiver, variances, special use permit, or other request for site - specific land use approval. (2) Applicant -- the owner of record, the owner's agent, or any person with a legal or equitable interest in property which is subject to the proceeding. (3) Commission -- the City Commission of the City of South Miami, Florida. (4) Competent evidence -- testimony or other evidence based on personal knowledge or offered by an expert, including documentary evidence and visual aids. (5) Comprehensive Plan -- the City of South Miami Comprehensive Plan policy document including to 9 all elements governing comprehensive planning in the City of South Miami, Florida. The comprehensive plan, including elements contains descriptive materials, written and graphic, which describe the principles, guidelines and standards by which comprehensive planning issues shall be governed. (6) Ex -parte communication -- any written or oral communication with Commission members which may directly or indirectly influence the disposition of an application, other than those made on the record during a public hearing. (7) Material evidence -- evidence which has bearing on the application because of the evidence's logical connection to an issue which is addressed, or is required to be addressed, in the application. (8) Participants -- members of the general public, other than the applicant, including represen- tatives of units of local governments and governmental agencies, who attend a public hearing for the purpose of being heard on an application. (9) Relevant evidence -- evidence which tends to support, disprove, or supplement a factual assertion or opinion on an issue which is addressed, or is required to be addressed, in the application. 1.04 GENERAL PROCEDURES. (1) Ex -parte communication. Ex -parte communica- tion shall be avoided. If ex -parte communi- cation occurs, the following steps must be taken: (a) Written communications: All written com- munications received by a Commission member relevant to a pending application shall be turned over to staff, entered into the application file and transmitted to the applicant within five (5) working days, and disclosed at the next public hearing on the subject application. 2 6 10 (b) Oral communications: When a Commission member determines an oral communication relates to a pending application, the conversation must be reduced to writing, identify the party, date, time, place and content of the statement, given to staff and the city clerk, entered into the application file, and disclosed at the next public hearing on the subject application. (c) Ex -parte communication which is not entered into the application file and disclosed at a public hearing may invalidate the Commission's disposition of the application. (2) Commission staff report. The staff report on the application shall be sent to the Commis- sion members and made available to the general public at least seventy -two (72) hours prior to any regularyly scheduled meeting, and twenty -four (24) hours prior to any special meeting at which the public hearing on the application is held. (3) Appearance. (a) Participants claiming to represent a group, organization, unit of local government or governmental agency must indicate the participant's authority to act as a representative for the group or organization. (b) All participants must sign -in prior to the proceedings on the application on which they wish to speak. (4) Evidence. (a) The Commission strict rules of consideration of admissible in a shall not be bound by evidence, or limited to evidence which would be court of law. (b) However, the Commission may exclude evi- dence or testimony which is not relevant, material, or competent, or testimony which is unduly repetitious. 3 6 0 (c) The Commission will determine the relevancy of evidence, and the Commission may ask the City Attorney for opinions on the relevancy of evidence. (d) Matters relating to an application's con- sistency with the comprehensive plan and the land development code are presumed to be relevant and material. (5) Application File. (a) All written communications received' by Commission members or staff concerning an application, the Commission staff report, any petitions or other submissions from the public, and all other documents -per- taining to the application shall be kept in the application file maintained by the staff. (b) The application file will be made availa- ble for public inspection upon request at any time during normal business hours. (c) During its presentation at the hearing on the application, the staff shall report on the contents of the application file and enter the application into evidence. 1.05 BASIS OF DECISIONS. All decisions of the Commis- sion made in quasi- judicial proceedings shall be based on the evidence presented to the Commission at the public hearing on the application, including the application, all witness testimony, staff's report, and demonstrative evidence and visual aids. The Commission members shall weigh all the competent, material, and /or relevant evidence presented, giving each piece of evidence the weight he or she sees fit. 1.06 CONDUCT OF HEARING. The order of hearing shall be as follows: (1) The Mayor shall read a preliminary statement once at the beginning of the quasi - judicial public hearing agenda, announce the particular agenda item, and open each public hearing. (2) The applicant, witnesses, staff, and all participants asking to speak shall be sworn 4 G �� excluding Florida attorneys, unless they testify. (3) The staff shall present its report, offer it into evidence, and have it made part of the record. (4) The Commission shall decide any parliamentary objections and objections to evidentiary matters with the advice of the City Attorney on evidence. The Mayor is the city's parliamentarian. (5) The staff shall present its report. (6) The applicant shall present its case. (7) Participants in support of the application shall present their case. (8) Participants in opposition to the application shall present their case. (9) Questions presented to witnesses: (a) Testimony may be subject to questions by: i) the applicant; ii) the staff; iii) the members of the Commission. (b) The Mayor may defer to the City Attorney to determine the scope of questioning. (c) Questions concerning assertions of fact or opinions relative to the application's consistency with the comprehensive plan and /or land development code will be presumed to be relevant and material. (d) Commission members may interpose ques- tions at such time as called upon or invited by the Mayor during the hearing. (10) Rebuttal by staff, if requested. (11) Rebuttal by applicant, if requested by the applicant. At this time the applicant may only rebut the statements made by the parti- 5 6 ,3 cipants and /or staff in opposition to the application. (12) The Mayor closes the public hearing. (13) Commission discussion and decision (no further presentations or testimony shall be permitted). 1.07 SUPPLEMENT OF THE RECORD. Supplementing the record after the public hearing is prohibited. If a question is raised by the Commission at the hearing to which an answer is not available, or if the Commission desires to view the site, the Commission may continue and reschedule the hearing to a future date. In the event that' new evidence becomes available after the hearing is closed, but prior to the expiration of 30 days from rendering a decision, and the evidence could not be made available before the hearing without extreme difficulty, the Commission may re -open the hearing by an affirmative vote of four members of the Commission. Hearings should be re- opened rarely, if ever, and only to prevent a manifest unjustice, or to protect public funds, property, services, contracts, safety, health, or welfare. 1.08 RECORD OF THE APPLICATION. Following the final disposition of the application, all evidence admitted at the hearing, the application file, all staff reports, and the adopted order promulgating the decision of the Commission shall be maintained in a separate file constituting the record of the application. The record shall be kept in the custody of the appropriate staff at all times during the pendency of the application. The record will be made available to the public for inspection upon request at any time during normal business hours. All quasi- judicial hearings shall be recorded. A court reporter may be retained and paid for by any person to take down the proceed- ings. Any person may order and pay for a transcript of the proceedings. Any such retained court reporter shall identify himself /herself to the clerk. 1.09 FINAL DISPOSITION. Any final disposition of an application at the adoption hearing shall include a statement of the facts upon which the decision is based, a statement of the policies governing the Commission's decision, and a rationale, based on the statement of facts and policies, for the A 1� BGGtz cam \9447prx.1 10/28 94 Commission's disposition of the application, in the event that the Commission's decision differs from the staff report and recommendation. If the Com- mission's decision does not differ from the staff report and recommendation, the Commission may simply vote to adopt the staff report and recommen- dation. 7 1 CITY OF SOUTH MIAMI © INTER- OFFICE MEMORANDUM To: Mayor & City Commission Date: November 10, 1994 11/15/94 Commission Agenda F Eddie Cox f Re: Item #1: Ordinance Eliminating City Manager Code Enforcement Board Appeals 17 Back ound: The Land Development Code currently allows for the appeal of any decision by any City Board or administrative entity to be heard by the City Commission. This is a policy decision that may be changed by the City Commission if they so choose. Recommendation: ADproval 1. Advantage t_ o City: Provides for policy - setting measures. 2. Disadvantages to City Cites: None. 3. This Ordinance is sponsored by the City Attorney. 4. This Ordinance amends Section 20 -6.1 (E)(1) of the Land Development Code. i 1 ORDINANCE NO. 2 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY 3 OF SOUTH MIAMI, FLORIDA, AMENDING SECTIONS 20- 4 6.1(A)(2)(e)vii AND 20- 6.1(E)(1) OF THE LAND DEVELOPMENT 5 CODE, ELIMINATING APPEALS TO THE CITY COMMISSION FROM 6 ORDERS OF THE CODE ENFORCEMENT BOARD; PROVIDING FOR 7 SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND $ PROVIDING AN EFFECTIVE DATE. 9 WHEREAS, the City of South Miami enacted the Land Development 10 Code by Ordinance No. 19 -89 -1441, as amended; and, 11 WHEREAS, the Land Development Code provides for appeals to the 12 City Commission from administrative decisions of boards, including 13 the Code Enforcement Board; and, 14 WHEREAS, a party must exhaust administrative remedies before 15 seeking relief in court; and, 16 WHEREAS, the City Commission desires to eliminate the 17 requirement of exhaustion of administrative remedies for orders of 18 the Code Enforcement Board. 19 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 20 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: 21 Section 1. Section 20- 6.1(A)(2)(e)vii of the Land 22 Development Code is amended to read: 23 make final judgment on appeals of administrative 24 decisions except orders rendered by the Code Enforcement 25 Board. 26 Section 2. Section 20- 6.1(E)(1) of the Land Development 27 Code is amended to read: 28 The City Commission shall serve as the appellate body for 29 all appeals of administrative decisions except orders 30 rendered by the Code Enforcement Board. 31 Section 3. If any section, clause, sentence, or phrase of 32 this ordinance is for any reason held invalid or unconstitutional 33 by a court of competent jurisdiction, the holding shall not affect 34 the validity of the remaining portions of this ordinance. 35 Section 4. All ordinances or parts of ordinances in 36 conflict with the provisions of this ordinance are hereby repealed. 1 2 3 4 5 6 7 8 9 10 11 12 13 7 Section 5. This ordinance shall take effect immediately at the time of its passage. PASSED AND ADOPTED this day of , 1994. APPROVED: ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY app.ard MAYOR ...� CITY OF SOUTH MIAMI AM ® INTER - OFFICE MEMORANDUM To: Mayor & City Commission From: Eddie Cox City Manager Back around: und: Date: November 7, 1994 11/15/94 Commission Agenda Re: Item #8: Rezoning of Bakery Centre For Consistency with the Camp Plan This item was heard for first reading originally at the May 18, 1993 City Commission Meeting, and then proceeded to the Planning Board for public hearing on June 15, 1993. As a result of legal action on the part of the RTC, all activity by the City on this item was stopped at that time. As more than a calendar year has elapsed since the first reading by the City Commission and the public hearing by the Planning Board, the City Attorney has advised that this item be placed on the City Commission Agenda at this time for first reading and that the process for public hearings be re- initiated, in order to avoid potential litigation by third parties concerning the forthcoming Bakery Centre decisions to be rendered by the City Commission. This item has been scheduled as a first reading item and will proceed to the Planning Board on November 29, 1994, and return to the City Commission for second reading on December 6, 1994. Analysis: The City Commission has amended the adopted Comprehensive Plan in order to designate the northern portion of the property commonly known as the Bakery Centre with the land use designation of Specialty Retail /Residential. Previously this northern portion of the Bakery Centre had been designated as Medium - Intensity Office land use. In accordance with this action, Administration presents the following item to rezone this same parcel from the existing and underlying MO (Medium - Intensity Office) zoning designation to the SR (Specialty Retail/Residential) zoning designation so that the Land Development Code Official Zoning Map will be consistent with the amended Comprehensive Plan Future Land Use Map. The entire property is indicated as PUD -M (Planned Unit Development -Mixed Use) on the Land Development Code Official Zoning Map which is an overlay zoning designation as a result of the Bakery Centre Planned Unit Development agreement. This designation is in addition to the requested zoning change. The status of the Planned Unit Development was, in fact, the issue regarding the RTC litigation and it is currently undecided as to whether or not the PUD -M overlay is valid; the Commission denied an extension of the Planned Unit Development in 1992. 0 i ORDINANCE NO. 2 AN ORDINANCE OF THE CITY OF SOUTH MIAMI, FLORIDA AMENDING SECTION 3 20 -3.1 (C) OF THE LAND DEVELOPMENT CODE OF THE CITY OF SOUTH MIAMI, 4 FLORIDA "OFFICIAL ZONING MAP" TO REFLECT THE REZONING OF A PORTION 5 OF THE PREMISES COMMONLY KNOWN AS THE BAKERY CENTRE BOUNDED BY 6 RED ROAD, U.S. 1, S.W. 58TH AVENUE, AND AN EASTERLY EXTENSION OF THE 7 CENTERLINE OF S.W. 71ST STREET AND LEGALLY DESCRIBED HEREINBELOW 8 FROM MO (MEDIUM- INTENSITY OFFICE) TO SR (SPECIALTY RETAIL /RESIDENTIAL); 9 PROVIDING FOR ORDINANCES IN CONFLICT; PROVIDING FOR SEVERABILITY; AND 10 PROVIDING AN EFFECTIVE DATE. 11 WHEREAS, the City of South Miami, Florida heretofore adopted a Land Development 12 Code on October 26, 1989; and, 13 WHEREAS, on January 18, 1989, the City of South Miami, Florida adopted a 14 Comprehensive Land Use Plan, and on September 7, 1994, adopted certain amendments thereto; 15 and, 16 WHEREAS, the adopted Comprehensive Land Use Plan included a designation of the 17 property commonly known as the Bakery Centre, which property is legally described in the 18 "Exhibit A" attached hereto, as being in part SR (Specialty Retail /Residential) and in part MO 19 (Medium - Intensity Office); and, 20 WHEREAS, by Resolution 138 -92 -9344 adopted December 16, 1992, the City 21 Commission requested the City Administration to commence procedures to redesignate that 22 portion of the premises from MO to SR and pursuant thereto, the City Administration has 23 proceeded to change the Comprehensive Plan designation; and, 24 WHEREAS, the Mayor and City Commission now wish to change the Land Development 25 Code and Official Zoning Map thereunder to conform with the Comprehensive Land Use Plan 26 as now amended; 27 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 28 COMMISSION OF THE CITY OF SOUTH MIAMI , FLORIDA: 29 SECTION 1. That Section 20 -3.1 (C) of the Land Development Code of the City of South 30 Miami, Florida "Official Zoning Map" be, and hereby is, amended to reflect that portion of the 31 premises commonly known as the Bakery Centre presently designated MO as SR. 32 SECTION 2. That Administration be, and hereby is, directed to make such changes necessary 33 so that the Official Zoning Map reflects the same. Ordinance to Rezone Bakery Centre Page # 1 C 1 SECTION 3. If any section, clause, sentence, or phrase of this Ordinance is held to be invalid 2 or unconstitutional by any court of competent jurisdiction, then said holding shall in no way 3 effect the validity of the remaining portions of this Ordinance. 4 SECTION 4, All Ordinances or parts of Ordinances in conflict herewith be, and the same 5 hereby are, repealed. 6 SECTION 5. This Ordinance shall take effect immediately upon adoption. 7 PASSED AND ADOPTED THIS 6th DAY OF DECEMBER, 1994. 8 9 10 11 12 13 14 15 16 17 18 0 ATTEST: Rosemary J. Wascura City Clerk READ AND APPROVED AS TO FORM: Earl G. Gallop City Attorney Neil Carver Mayor c:lreportslbakery.ord Ordinance to Rezone Bakery Centre Page # 2 EXHIBIT A: LEGAL DESCRIPTION 3 PARCEL 1. LOTS 3, 4, AND 5; LOTS 6 THROUGH 10, INCLUSIVE, LESS THE EAST 4 20 FEET; LOTS 11 THROUGH 15; INCLUSIVE, LOT 19 LYING EAST OF LOT 18 AND 5 LOTS 20 THROUGH 32, INCLUSIVE AND PART OF LOT 33 AS FOLLOWS: BEGIN AT 6 THE SOUTHWEST CORNER OF SAID LOT 33, THENCE RUN NORTH 99.7 FEET ; 7 THENCE RUN NORTHEASTERLY PARALLEL TO THE F.E.C. RAILWAY 47 FEET; 8 THENCE AT RIGHT ANGLES TO THE LAST LINE, RUN SOUTHEASTERLY 80 FEET; 9 THENCE RUN SOUTHEASTERLY 68.9 FEET TO A POINT ON THE SOUTH LINE OF 10 SAID LOT 33, WHICH POINT IS 100 FEET EAST OF THE WEST LINE OF SAID LOT 33; 11 THENCE RUN WEST ALONG SAID SOUTH LINE 100 FEET TO THE POINT OF 12 BEGINNING ALL IN BLOCK 1 OF CARVER'S SUBDIVISION ACCORDING TO THE 13 PLAT THEREOF, AS RECORDED IN PLAT BOOK 6, PAGE 36 OF THE PUBLIC 14 RECORDS OF DADE COUNTY, FLORIDA. 15 LOTS 1 AND 9, INCLUSIVE, LOTS 10 THROUGH 13, INCLUSIVE, LESS THE SOUTH 16 13 FEET AND LOTS 17 THROUGH 22, INCLUSIVE ALL IN BLOCK 2 OF CARVERS 17 SUBDIVISION, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 18 6, PAGE 36 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. 19 THAT CERTAIN PARCEL OF LAND WHICH FORMERLY CONSTITUTED NORTH RED 20 COURT, WHICH IS BOUND ON THE EAST SIDE BY THE WEST BOUNDARY LINE OF 21 LOTS 21 TO 33, BOTH INCLUSIVE, BLOCK 1 OF CARVERS SUBDIVISION AND 22 BOUNDED ON THE WEST BY THE EAST BOUNDARY LINE OF LOTS 1 TO 10, BOTH 23 INCLUSIVE, OF BLOCK 2 OF CARVERS SUBDIVISION ON THE SOUTH BY THE 24 NORTHERLY LINE OF SUNSET DRIVE AND ON THE NORTH BY THE SOUTHERLY 25 LINE OF US HIGHWAY 1, ALL ACCORDING TO THE PLAT THEREOF AS RECORDED 26 IN PLAT BOOK 6, PAGE 36 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. 27 PARCEL -2 LOTS 1, 2, AND 33, BLOCK 1, CARVERS SUBDIVISION, ACCORDING TO 28 THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 6 AT PAGE 36 OF THE PUBLIC 29 RECORDS OF DADE COUNTY, FLORIDA, EXCEPT THAT PORTION OF SAID LOT 33, 30 BLOCK 1, DESCRIBED AS FOLLOWS: BEGIN AT THE SOUTHWEST CORNER OF LOT 31 33, RUN NORTH 99.7 FEET TO THE SOUTHEASTERLY LINE OF DIXIE HIGHWAY 32 THENCE ALONG SAID HIGHWAY LINE NORTHEASTERLY 47 FEET; THENCE AT 33 RIGHT ANGLES TO THE HIGHWAY RUN SOUTHEASTERLY 80 FEET; THENCE 34 SOUTHEASTERLY 68.90 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 33, 35 100 FEET EAST OF THE SOUTHWEST CORNER; THENCE WEST 100 FEET TO THE 36 POINT OF BEGINNING; EXCEPT THAT PORTION OF THE ABOVE PROPERTY WHICH 37 AS TAKEN IN AN EMINENT DOMAIN PROCEEDING BY OR CONVEYED TO THE CITY 38 OF SOUTH MIAMI FOR STREET PURPOSES. 39 PARCEL 3. LOTS 16 AND 18 AND LOT 19, LYING EAST OF THE LOT 18 ALL IN 40 BLOCK 1, CARVERS SUBDIVISION OF THE PUBLIC RECORDS OF DADE COUNTY, 41 FLORIDA. Ordinance to Rezone Bakery Centre Page # 3 The property is surrounded by SR (Specialty Retail /Residential) zoning designations and similar type zoning designations in the City of Coral Gables immediately to the east of the property. The property is bounded by U.S. 1 to the north and the Metrorail corridor. Immediately north of this corridor are properties which are designated as I (Intensive) on the Official Zoning Map. The U.S. 1 /transit corridor effectively separates the proposed SR district from the I district. Recommendation: Approval 1. Advantage to City: Provides for the consistency of the Land Development Code Official Zoning Map with the amended Comprehensive Plan Future Land Use Map. 2. Disadvantages to City: None. 3. This Ordinance is sponsored by the Administration. 4. This Ordinance amends the Land Development Code Official Zoning Map. Lt ., OFFICIAL ZONING MAP :r... •J N• N