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11-13-90 SPECIALNext Resolution:133 -90 -9059 SPECIAL CITY COMMISSION MEETING Next Ordinance: 24 -90 -1464 TUESDAY, NOVEMBER 13, 1990 Next Commission Meeting: November 20, 1990 7:30 P.M. A. Invocation B. Pledge of Allegiance to the Flag of the United States of America ORDINANCES - 2nd READING AND PUBLIC HEARING: None RESOLUTIONS: 1. A Resolution of the Mayor and City Commission of the City of South Miami, Florida, authorizing Gregory P Borgognoni Esquire, as special counsel for the City of South Miami to file and pursue an appeal of the final order entered against the City of South Miami in Dade County Circuit Court Case 89- 54386CA14 "Meenan V. CITY OF SOUTH MIAMI ". (COMMISSION) (3/5) ORDINANCES - 1st READING AND PUBLIC HEARING None REMARKS: None Discussion: Attorney John Fletcher with regard to the decision of the Commission I. in relation to issuing occupational licenses for all uses formerly classified as C -2 and C -3 for 'property at 5825 S.W. 68 Street, South Miami, Florida. Discussion: Satellite Antenna Ordinance II. (attached for your reference) OFFICIAL AGENDA CITY OF SOUTH MIAMI 6130 Sunset Drive SPECIAL CITY COMMISSION MEETING TUESDAY, NOVEMBER 13, 1990 7 :30 P.M. Next Resolution 133 -90 -9059 Next Ordinance 24 -90 -1464 Next Commission Meeting: November 20, 1990 A. Invocation B. Pledge of Allegiance to the Flag of the United States of America ORDINANCES - 2nd READING AND PUBLIC HEARING: None RESOLUTIONS: 1. A Resolution of the Mayor and City Commission of the City of South Miami, Florida, authorizing Gregory P. Borgognoni., Esquire, as special counsel for the City of South Miami to fide and pursue an appeal- of the final order entered against the City of South Miami in bade County Circuit Court Case 89- 54386CA14 "Meenan V. CITY OF SOUTH MIAMI ". (COMMISSION) (3/5) ORDINANCES - 1st READING AND PUBLIC HEARING None REMARKS: None Discussion: Attorney John Fletcher with regard to the decision of the Commission I. in relation to issuing occupational licenses for all uses formerly classified as C -2 and C -3 for property at 5825 S.W. 68 Street, South Miami, Florida. Discussion: Satellite Antenna Ordinance I1. (attached for your reference) RESOLUTIOr' NO A RESOLUTION OF THE MAYOR AND CITY COr. � 1ISSIOTv OF THE CITY OF SOUTH MIAMI, FLORIDA, AUTHORIZINC GREGORY P. BORGOGNONI, ESOUIRF, AS SPECIAL COUNSEL FOR THE CITY OF SOUTH MIAMI TO FILE AND PURSUE AN APPEAL OF THE FINAI. ORDER ENTERED AGAINST THE CITY OF SOUTH MIAMI IN DADE COUNTY CIRCUIT COUPT CASE R9- 54386CA14 "MFENAN V. CITY OF SOUTH MIAMI". WHEREAS, by Resolution dated May 15, 1Q00, the City of South Miami authorized employment of `Gregory P. Borgognoni, Esquire, as Special Counsel of the City of South Miami to defend the City in Dade County Circuit Court Case S9- 54386CA14 "Heenan v. City of South Miami "; and WHEREAS, on October 4, 109O, a Final Order was entered in favor of the Plaintiff and against the City of South Miami; and WHEREAS, the Mayor and City Commission believe a valid and viable appeal exists and that it is in the City's best interest to appeal this Order. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. That Cregory P. Borgognoni, Esquire, Special Counsel of the City of South Miami be, and hereby is, authorized to file and pursue an appeal of the Final. Order entered against the City of South Miami in Dade County Circuit Court Case 89 54386CA14 "Meenan v. City of South Miami ". PASSED AND ADOPTED this day of , 1990 APPRONTED : ATTEST: MAYOR CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY Citu of South Miami INTER- OFFICE MEMORANDUM Mavor & Commission DATE' October llth 1990 "ti ty Attorney Berg SUBJECT! Case Report I received a preliminary opinion in the Meenan Case (copy attached). Judge Feder ruled (on page 2): "An appropriate Order should be drawn enjoining the City from proceeding with the existing Land Use Plan designated for the subject property other than as Low tensity Office." Because this Opinion calls for another Irder t0 'ne drawn, it is not the final Order in the case. Further, the language in the quoted paragraph should be clearer. Special` Counsel, Gregory Borgognoni, will discuss this with opposing Counsel, John Fletcher, as well as the possibility of abating the Steinbauer Case, if the City decides to appeal. All of the foregoing will be discussed in detail at a Special Commission meeting to be set for the first week in November and therefore will not be discussed in my City :attorney's Report at the Special Commission meeting of October 16th, 144n, Jean Rich Meenan and William Meenan Plaintiff, VS. City of South Miami, Defendant. IN THE CIRCUIT COURT OF THE 11Th JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA. GENERAL JURISDICTION DIVISION CASE NO. 89 -84386 CA 14 O R D E R This suit involves an attack on the re- zoning of Plaintiff's property to a "Two Family /Townhouse Use" from Low Density Office by the Land Use plan updated by the Defendant, city of South Miami in November, 1989. Use is limited to low" density residential use only. ThA rnjc2ct4 r+n fe r 41�o r4r %i r4 4a whdb -hor 4-ho r+roc»m�n � vnl .r ya1.L CQWW "Qft51Ve i02A.LLlq #J an nae beea esz t.0D.L.LwiCu Vy L11W property owner to have been invalid. As oft- repeated by the supreme Court, the question for this Court is whether the use decision by the municipal, authority is "fairly debatable" or is clearly arbitrary. A map of the area is attached and shows that the area under discussion on Manor Lane is an island surrounded by swirling, noisome traffic. On the South there is a natural barrier of a drainage canal; on the East by Metrorai.l and US #1; on the North, shop, another office building South Miami Hospital parking garage and hospital buildings. On the west side of Manor Lane is a development of single family homes, but that also is separated since the homes do not face Manor Lane (with one exception) _ and �{,.►,+ ice+ —A •.wi..yl ,. wr —r — C-. .— ♦.1. I .r. 1� LLu, L�.._ ._ __ __ � _ _.� _ �� .-� �... .w.... w�� ♦� v •avL..rr r. Aa♦ r.Ai tit area. The Defendant around 1982 -83, planted trees, concrete barriers across the intersecting roadways to bar all vehicular traffic from Manor Lane into the residential area thus showing a Municipal interest and desire to physically separate and isolate business from residential. The City succeeded. Manor Lane by this action has become a clogged artery which provides vehicular access from US #1 (at Davis) to Sunset Drive with no neighborhood T L-1 .-a n NHOr 0 T: 9 T anL q5 -5 —L9C - I access in the area of this subject < property. This palm- Tree Curtain accentuated the other physical separation of the commercial island from the residential mainland. Traffic count' in 182 -83 was 77 vehicles an hour; it is now (189) 177 vehicles an hour. The testimony of one Traffic Engineer clearly established that;:on both traffic decibel and vehicular - volume levels, the property is unsuitable for residential purposes Add to this the existing grand - fathered commercial use to the contiguous properties on the North Side and it becomes patently absurd that the property could be used for low density residential purposes. It cannot be debated - 'fairly or otherwise - that the drainage canal separates the property to the South from the neighborhood to the North. [1j Nor can it be debated that the commercial area is an island or enclave unto itself, separate and apart from the residences to the west. Finally, it i not fairly debatable that the classification of this property as low density residential property is arbitrary and capricious and thus unconstitutional. An appropriate order should be drawn enjoining the City from proceeding with the ;existing Land Use Plan designated for the subject property other than as Low Density Office. DONE AND ORDERED, at Miami, Dade County, Florida, this day,of October, 1990. RICHARD YALE FEDER Circuit Judge cc: Gregory Borgognoni, Esq, John Fletcher, Esq. --- - - - - -- -- - - - - - -- --- - - - - -- - - - -- -- -- - -- Even= the amity's expert, though denying that the canal is a "Barrier", zoned the area to the South of the canal differently than the area to the North. its justifi cation for not re- zoning the contiguous area to the North consisting of the South Miami Hospital area (which fronts unto more single family residences than he subject property) is equally unconvincing of an absence of arbitrariness i.e., that the hospital is of a more economically "permanent nature than the four existing commercial ,enterprises between the subject property and the Hospital Smallness of an enterprise has never been a sign, cognizable in Law or in fact, of economic frailty; nor has hugeness been proof of economic health (c.f. Burdine's, Centrust, Eastern, Trump with Morgan Trust, Harry Winston, Joe's Stone Crabs. :��H0 1 -37 FaHi)t' - T a Z 7an1 96 -V�:, -1sC I z JoHx G. FLETCHER ATTORNEY AT LAW SUITE 204 7600 RED ROAD SOUTH M7AMI, FLORIDA 33143 - 5484 TELEPHONE (3051 665 •7521 FAX (305) 665 - C328 October 18, 1990 Rose Mary Wascura South Miami City Clerk South Miami City Hall 6130 Sunset Drive South Miami, FL 33143 Re: Mobley v. City of South Miami, Case No. 90 -32116 Dear Rose Mary: Pursuant to Our telephone conversation the purpose of this letter is to request that the subject of the Mobley property be placed on the agenda of the South Miami City Commission for its November 6, 1990, meeting. This is pursuant to the agreement that City Attorney Martin Bera and I reached in regard to that case styled Mable Mobley v. City of South Miami, Case No. 90 -32116 (CA 11). I enclose herewith a copy of the agreed order which is self explanatorv. would appreciate your confL.—mina that this matter aoina to be scheduled for the November 6, 1990, Soutt viami City Commission agenda, My many thanks Lor ,our .lsua cour:esv. Cordia 1 , ohn ''G. Fletcher %'oble%7 ( SCU SS 10M 31 City of South Miami INTER -- OFFICE MEMORANDUM :vcr and Commission DATE:October 31, 1990 City Attorney SUBJECT: John Fletcher as attorney for Mabel Mobley - auestion of nonconforming use John Fletcher, as attorney for Mabel Mobley, requests a policy direction from the City Commission to the City Manager to issue occupational licenses for all uses formerly classified as C -2 and C -3 uses for the property at 5825 S.W. 68th Street, South Miami, Florida. Mr. Fletcher had filed a lawsuit to require (by injunction) the City to issue these licenses; however, at my argument on a Motion to Dismiss for failure to exhaust administrative remedies, Mr. Fletcher agreed and dismissed his suit (without prejudice) and is now seeking an administrative solution. By copy of this memo to the Building and Zoning Department, 1 am requesting back up information regarding, first, the C -2 and C -3 use schedules then applicable and; second, the actual uses that were established on the property prior to the present code being enacted. All uses established prior to the present code and not abandoned remain valid as nonconforming uses, i.e. they are "grandfathered The questions of fact to be determined are, then 1) What uses were established? 2) Were the uses abandoned? Finally, Mr. Fletcher may attempt to argue that the establishment of any one use in a schedule establishes all other uses in the same schedule. I disagree with this argument. Case Law in many jurisdictions seems to indicate the contrary. t IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 90 -32116 (CA 11) MABLE A. MOBLEY, Plaintiff, vs. CITY OF SOUTH MIAMI, Defendant. AGREED ORDER GRANTING MOTION TO DISMISS The above matter :Having come on to be heard before the Court on October `, 1990, on the Defendant's otion to Sismiss and the City of South Miami having stated that the emedy :Jhich _S avaaiabie t0 the = - alnti_ _S to aapear before the South Miami City Commission to seek �o _c "' �_rece_cn -rom the City Commission o the `v "anager " °' -at_= _0 _Ssuing Occupational '_censes Zor 'SeS = " °r "' - S., -__ea all C -_ nd C L'SeS �' ^UeStiOn ^. and t: - Darties having agreed ::a- _ne 7atte� W4-,7 _ ba set '`:ore e -out: :Miami C_+ v Commission =_ agenda :ovember -990, ;: is ORDERED --. ".e above 7z-vied cause is hereby --s missed wi '-Iouo s prejudice, DONE AND ORDERED this day off �R 1990 li RiA ,�. KORVicX Circuit Judge Copies Furnished: Martin Berg John G. Fletcher fir, OF ArZ G 3d lkober r by � rofesso,r S . � derCone e ofL34, o f rav Es Sol] Lnr�erslri, ey o�tiesrK'� RS C0.0 'CO San aAOFr.IVNIOrk 146,94 47,1yF pUBI! circa. `a fr CO S Co °tn,g y04107 Tenant list for number 5826 S.W. 68th Street. The following is an accurate, but not all inclusive list of former and existing tenants at the C -S building located at 6826 S. W. 68th Street. Prior Tenants Antique Paradise Sunset Lamps /Lighting Unique Oak Antiques International Wildlife, Inc. Hallmark Insurance Group/ Anthony Abraham Enterprises/Castro Boat Services Additions Unlimited Sunset Plumbing Alan Keating Marine Electronic Repair Grove Tree Service & Landscaping Blue & White Autohaus, Inc. Parts & Accessories Church of Scientology University !gulf Tire, Battery, & Accessory i NONCONFORMING USES § 6.37 as more flexible, are ordinances which permit change of a nonconforming use with approval of 'a board of adjustment or other administrative body. Where the cases disclose the text or the general tenor of the regulation of change, they are collected under appropriate section captions.' But the large number of cases in which the courts either have not specifically relied on an ordinance, or, relying on one, have not indicated its specific nature, are considered together under more general captions.' In these sections, a flat prohibition of change of use is assumed, and the discussion is focused upon the criteria employed to deter - mine whether a change of use is sufficient to be regarded as such within the meaning of the prohibition. r § 6.37. Change in the kind or quality of use. Under a zoning ordinance which proscribes change of use, one nonconforming use may not be substituted for another. The application of this rule is not difficult where the new use is totally unlike the old one. Where, for example, a doctor's office was changed to a funeral home, the court found an unlawful change of use.' The same result was reached where a dance hall ' was converted to a restaurant.' a post office was changed to a cleaning establishment.' a restaurant was changed to an adult bookstore.' a theatre was substituted for a restaurant.' a _restau- rant was changed to a tavern., a rehabilitation center was converted to a convent,' and a riding academy became a manu- 1. See, for example. § 6.44, infra. S. a change of a nonconforming restaurant to a tavern which serves 2. See. for example, § 6.38. infra. P liquor as «ell as Loon is a change which is prohibited by a provision 3. Kensington Realty Holding Cori). P _ P which any change except to 9 i h rascribes n p 1 .,1 :� � 87 P v Jersey City, 118 NJL 1 4. 1 h' v Oriskany. a conforming use.. Phillips i 1937), affd 119 NJL 338. 196 A 69L - 57 Lapp Div 2d 110. 394 NFS2d 941 4. Lvnn v Deam..324 Mass 607. S7 197'. 4th Deou. N E2d 849 (1949). 9. Nonconrorrn=- use or a property 5. Simone v Peters. 135 tiJL 4j5. 53 , a rehabilitation center was a differ- 12d 315 (1947). ent nonconforming use trom that or -onvent thouzn structure contlnuea 6. Altpa, Inc. v North Huntingdon Townsnio Zoning Hearing Bd.. 97 Pa s housin>; for approximateiv .30 unre- Cmwith 60. 445 A2d 1358 i 1982E sated' individuais and t;- ereiore re- quired a variance. Dearden v Detroit. 7. Thomas v Zoning Bd. of Appeais. 70 Mich .app 163. 245 NW2d 70 72 Ill App 3d 934. 29 I11 Dec 277. 391 1976). revel 403 Mich 257. 269 tiW2d NE2d 540 (1979.3d Dist). 139. 561 S well- defined ssent in the nerically the may not be 'ming, full -ser- changed to an n bars, a disco, room, the new kind and not of nonconform- Hotels, Inc. v 3d., 385 Mass 382), later app 2d 1070. g nonconform- 7 to store and :luipment may a nonconform- hout obtaining Constr. Co. v 56 App Div 2d 7. 2d Dept). d in a garage echnologicaily ibstantial evi- :Iat a personal emained con - mued noncon- d. of Adiust- 1with 485. 482 NONCONFORMING USES § 6.37 changed to a nonconforming fuel oil business, although both are commercial in character" A change from athletic exhibitions to furniture, exhibitions is prohibited;" substitution of a paint- spraying shop for a tinsmith and woodworking shop is pro- scribed." Changes from one nonconforming use to another, even very similar in character, have usually been disapproved. For exam- ple, substitution of an automobile body shop for a garage was held to be unlawful,18 as was a grocery store with gasoline pumps to a gasoline station. 17 A change from stable to riding academy was disapproved,18 and a change from use of a dwelling for sleeping_ rooms to use for combination 'units with cooking facilities was found unlawful,'s as was a change from a hotel to a home for retired persons.20 bag- cleaning industry); Berdan v Pa- property owner, whether on or off the terson, 1 NJ 199,' 62 A2d 680 (1948) premises. constituted' an illegal expan- (textile plant to machine shop); Ossin- sion of his legally nonconforming use ing v Meredith, 275 App Div 850, 88 of on- premises manufacture of con - NYS2d 775 ,(1949) (storage of immo- crete bricks and blocks and sale of bile equipment to storage of trailers); building materials. Vermont Brick & Margo Operating Corp. v Great Neck. Block: Inc. v Essex Junction. 135 Vt 129 NYS2d '436 (1954, Sup) (nursery 481, 380 A2d 67 (1977). school to day camp); Application of 13. Everpure Ice Mfg, Co. v Board Braunsdorf, 202 Misc 471, 111 NYS2d of Appeais, 324 `lass 433. 86 NE2d 507 (1952) (manufacturing pianos to 906 (1949). making syrup); Bowen v Hider. 37 NYS2d' 76 (1942, Sup) )stall- parking 14. Auditorium, Inc. v Board of Ad- garage to open parking); Grushkin v justment. 47 Del 373. 91 A2d 528 Zoning Bd. of Appeals. 26 Conn Supp '1952, Sup). 457,' 227 A2d 98 (1967) (business use 15. Wechter v Board of Appeais. 3 to sale of liquor). Ill 2d 13, 119 NE2d 747 (1954). Owner was properly enjoined from 16. Rupprecht v Dranev, 137 NJL using a lot zoned residential as park- 564, 61 A2d 220 (1948), affd 1 NJ 407, ing lot for customers of bar and 64 A2d 66. lounge located on adjacent property. No continuation of nonconforming use 17. Santoro v Zoning Bd. of Review. status where defendants use of lot 93 RI 68. 171 A2d 75 )1961). was of different quality and character- 18. Berry % Recorder's Court of istic than prior nonconforming use. `,Vest Orange, i24 NJL 385. 11 A2d New use was a lower classification 743 (1940), aifd 125 NJL 273, 15 A2d under ordinance, and was more obiec - -58 tionable than prior use as a parking lot for vehicles in connection with 19. Beene y Blood, 101 NH 466, 146 construction business and auto repair - A2d 262 (1958). shop. Lake Charles v Frank, 350 So2d 20. State ex rei. Edmond Meanv 233 (1977, La App 3d -Cir). Motel. Inc. v Seattie, 66 Wash 2d 329. The manufacture of concrete by the 402 P2d 486 (1965). 563 3 § 6.37 Aku.,UCAN LAW OF ZONING facturing and packaging plant.10 The list of equally well- defined j changes can be extended without any notable dissent in the decisions." Change is proscribed although the new use is generically the same as the old." Thus, a nonconforming icehouse may not be 10. Universal Holding Co. v North Bergen, 55 NJ Super 103, 150 A2d 44 (1959). 11. Kallay's Inc. v Katona, 152 Conn 546, 209 A2d 185 (1965) (restau- rant serving liquor to a package store); Lathrop v Norwich, ill Conn 616, 151 A 183 (1930) (auto repair shop to gasoline station); Bowling Green v Miller, 335 SW2d 893, 87 ALR2d 1 (1960, Ky) (storage room to sheet metal business); Adamsky v Mendes, 326 Mass 603, 96 NE2d 236 (19,50) (garage to storage of machinery and equipment); Morris v Haledon, 24 NJ Super 171, 93 A2d 781 (1952) (trade school to woodworking firm); Susman v Cleveland, 111 Ohio App 18,1 13 Ohio Ops 2d VS 83 Ohio L Abs 161, 162 NE2d 225 (1959, Cuya- hoga Co), app dismd for want of debat q 171 Ohio St 164, 12 Ohio Ops 2d 203, 167 NE2d 927 {sale of second- hand building materials to automobile saivager Re Appeal of Lance, 399 Pa 311, 159 A2d 715 (19601 (grocery store to store selling beer): Denver v Board of Adjustment, 31 Colo App 324, 505 P2d 4.1 (1972) (greenhouse to apart- ment); Powers v Building Inspector of Barnstable. 363 Mass 648. 296 NE2d 491 (1973) (living quarters to otficesr JaSDer v Michael A. Dolan. Inc.. 1155 Mass 17, 242 NE2d 540 (1968) ! food store seilina beer and «vine to same _eiling liquor): Gilmore v Bever. 46 App Dived 208. 1161 NYS2d 7,139 1974. 3d Dept) (milk hauling to gen- era! trucking). Under an ordinance prohibiting en- largement or alteration of existing wails. buildings, or structures, one cannot convert a blacksmith shop into a easoline station. Earle v Shackle - ford, 177 Ark 291. 6 SW2d 294 (1928). 562 Where a nonconforming, full-ser- vice resort hotel was changed to an amusement center with bars, a disco, and an entertainment' room, the new uses were different in kind and not protected by the right of nonconform- ing use. Cape Resort Hotels, Inc. v Alcoholic Licensing Bd., 385 Mass 205, 431 NE2d 213' (1982), later app' 388 Mass 1013, 446 NE2d 1070. A landowner making nonconform- ing use of his property to store and service construction equipment may not remodel for use as a nonconform- ing gasoline station without obtaining a variance. Calcagni Constr. Co. v Zoning Bd. of Appeals. 56 App Div 2d 845, 392 NYS2d 86 (1977, 2d Dept). j Although items stored in a garage are newer and more technologically advanced, this is not substantial evi- dence enough to show that a personal storage use has not remained con- stant but is a discontinued noncon- forming use. Zoning Bd. of Adjust- ment v Libros. 85 Pa Cmwlth 485, 482 A2d 1181 (1984). Use of property in a residential district for a nonconforming newspa- per delivery service, and incidental repair of vehicles uses in such service, does not establish a right to maintain a motor vehicle repair shop. The lat- ter use is significantly different from the former. Wyrock v Zoning Hearing Bd.. 24 Pa D & C3d 187 (1981), atfd 72 Pa Cmwlth 30, 455 A2d 784. 12. Los Altos v Silvey, 206 Cal App 2d 606. 24 Cal Rptr 200 (1962. 1st Dist) (wine bottling to manufacture of boats). Public Bldg. Comr. v Star Mar- ket Co., 324 Mass 75, 84 NE2d 529 (1949) (dairy farm to processing plant): State v Miller, 206 Minn 345, 2S8 NW 713 (1939) (macaroni plant to i E changed to commercial furniture t spraying si scribed.,s Changes similar in t pie, substit, held to be pumps to s academy wf for sleeping facilities wa home for re bag -cleaning i terson, 1 NJ (textile plant t ing v Mereditt NYS2d 775 (1 bile equipment Margo Operati 129 NYS2d 43 school to day Braunsdorf, 20: 507 (1952) (mF making syrup) NYS2d 76 (19< garage to open Zoning Bd. of i 457, 227 A2d f to sale of 'liquor Owner was F using a lot zon( ing lot for ct lounge located No continuation status where c was of different istic than prio: New use was under ordinance tionable than p lot for vehicleF construction bun shop. Lake, Chaz 233 (1977. La Al The manufact- Jv*- VOLUME 6 ZONING AND LAND U SE CONTROLS by .PATRICK J, ROHgly Dean and Pr , B.A., 1L.B. L1.M. AuH+or: ofessor of , J.S.D. Powell on Real pro (aw, St' John's U'74 -rsn>, Schoo! Cooperative Housing; Rea/ Perry (rev' ed.)'. Condo of (vw. PUDs% Current Fstote Finondno; Ho em(Zm Law & pro feasinq law me Uwner trice; vnd Technigvesr Rev! - `� ss °ciat/ons g Cstate Tvx Appeals Contributors Professor Bruce M. Texas Tech Unive Kremer Professor {smty Schoo, of low woke Forest � v ryas E. Roberts s »v Schooi of low Editors Member Ginger L. Grin of the Missouri ono Texas John arn n L. Sch Men+ber of the Florid aub a -a Geor", Burs Richard C. Member of the New le seey, New ��o ghoul Penn swvoniv b'grs 1990 46 hew Bender ,W,• Bo jw § 41.03(2] ZONING AND LAND USE CONTROLS 41 -60 abandonment or discontinuance.' [2]-- Change of Use [a}— General Rule Against Unauthorized Change; Exceptions. As a general rule, a nonconforming use that exists at the time a zoning ordinance is enacted cannot be changed into a significantly different kind of nonconforming use.' Thus, unless the ordinance provides otherwise, a nonconforming use cannot be changed if it is ' See § 41.03(6] infra 8 See, e.g., Gilmore v. Beyer, 46 AD2d 208, 361 NYS2d 739 (3d Dep't 1974)(an increase in the volume of use alone is not an improper extension; when, however, it is coupled with a qualitative change from a milk hauling business to a general trucking business, it is impermissible and may be enjoined.); Town of Aurora v. Kranz, 103 AD2d 1022, 478 NYS2d 218 (4th Dep't 1984), affd 63 NY2d 996, 483 NYS2d 1012, 473 NE2d 262 (1984)(plaintiff was entitled to enjoin defendants from conducting mud races for a fee, or any other commercial' operations on its land that were deemed an improper extension of the prior nonconforming uses of horse shows and rodeos). See also: Connecticut: Hyatt v. Zoning Bd. of Appeals of Town of Norwalk, 163 Conn 379, 311 A2d 77 (1972)(character of business changed). Kentucky: Feldman v. Hesch, 254 SW2d 914 (Ky 1953)(change of truck storage business to repair and reconditioning of vehicles not allowed in residential zone). Louisiana: Redfeam v. Creppei, 455 Sold 1356 (1984). Maryiand: County Council of Prince George's County v. E.L. Gardner, 293 Md 259, 443 A2d 114 (1982)(county council had no authority to issue a special excep- tion to an applicant to operate a sand and gravel wet- processing facility at a loca- tion in which the applicant was operating a nonconforming surface mining sand and ¢ravel facility, since the proposed wet - processing faciiity constituted a change in the nonconforming use. ,ioiative of the statutory scheme that prohibited such .:hange). Massachusetts: Chilson v. Zoning 8d. of Appeal of Attleboro, `44 '.Mass 406. 182 NE2d 535 (1962). New York: Phillips v. Fill. Oriskany.:' AD2d 110, 394 NYS2d 941 (4th Der)'t 1977)(a chanee of property from a restaurant and soda fountain business to a tav- ern dispensing liquor constituted a change of use within meaning of zoning ordi- nance provision that nonconforming use of land could not he changed to another nonconforming use: such section, which was basis for zoning board's dental of - .ariance to plaintiff, was held to be valid). 'ReIA —i0 .R6 PP.IhW4 V 41 -61 NONCONFORMING USES § 41.03[2] substantially" or entirely different10 from the original use. 9 See, e.g., Dearden v. City of Detroit, 70 Mich App 163, 245 NW2d 700, 703 (1970the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance). See also: Massachusetts: Dobbs v. Bd. of Appeals of Northhampton, 339 Mass 684, 162 NE2d 32 (1959)(beauty shop and grocery store were substantially different): New Hampshire Town of Hampton v. Brust, 446 A2d 458 (1982)(trial court could reasonably have concluded that a penny arcade portion of a building could not be expanded into a section of the building that had been used as a gift shop, a use different from a penny arcade). New Jersey. Arkam Machine & Tool Co. v. -Twp. of Lyndhurst, 73 NJ Super 528. 180 A2d 348, 350 (1962)(a nonconforming use is not restricted to the identi- cal particular'' use in existence at time of enactment of zoning ordinance, but em- braces the same or substantially similar uses within the zoning classification). to See, e.g.. Susman v. Cleveland, l l l Ohio App 18, 162 NE2d 225 (1959)(div mantling and wrecking automobiles and the sale of second -hand parts and scrap metal was a completely different use from that of storing and selling second -hand building materials; accordingly, the use of the premises for the latter purposes prior to enactment of the zoning ordinance' conferred no right to use the property for the former purposes in violation of the ordinance). See also: Massachusetts: Everpure Ice Manufacturing Co. v. Bd. of Appeals of Lawrence, 324 Mass 433. 86 NE2d 906 (1949). The court stated the general rule to be as fol- lows: "A lawful nonconforming use of land existing at the time of the adoption of a zoning ordinance which may be continued is substantially the same use to which the land was devoted when the ordinance became effective and not some other substantially different use unless the ordinance otherwise provides." 86 NE2d at 909. Missouri Brown v. Gambrel. 358 Mo 192. 213 SW2d 931 (1948)(owners of buildine constructed for use as public stable or riding academy spent 535.000 to alter and improve property without a permit and subsequently applied it to anon- conformrng use as a public dance hail; court held that the change of use and a lat- eratron of the buiidine were unlawful). New Hamosnrre: Stevens v. Town of Rve, 448 A2d 426'(1982)(a change to a nonconforming use from an automobile garage into a `bath shop" and plumbing supplies showroom was an impermissible expansion, since it was an alteration of a building for a purpose or in a manner substantially different from the prior use). In Lynch v. Borough of Hillsdale, 136 NJL 129, 54 A2d 723 (1947), the New Jersey Supreme Court refused to allow a nonconforming use merely because it might be less obnoxious than the old use (54 A2d at 725 -726): The court stated: "A preexisting non - conforming use may not be enlarged or radically modified Re1.18 -10j% Pnh Wl PAGE 41-61 ZONING & LAND USE CONTROLS 36 PAGE 41 -61; H•* In Rendir v. Zoning Hearing Bd., 488 A.2d 391 (Pa. Commw. Ct. 1985), the court upheld the denial of a landowner's request for a variance to permit additional nonconforming uses of his property based upon his own prior nonconforming use of the property as a medical office. The owner's residence contained accessory professional offices for his medical practice that had legal nonconforming, use status. He sought approval of the use of the office space for his son's securities business and his son -in- law's law practice. The court held that such use of the offices was not a lawful nonconforming use because it was clearly different from the owner's nonconforming use. Therefore, the use of the space; for the son's and son -in -law's businesses was not protected as a valid continuation of the prior nonconforming use. Expansion of penny arcade prohibited: See Town of Hampton v. Brust, 446 A.2d 458, 462 (N.H. 1982), holding that a trial court could - reasonably have concluded that a penny arcade portion of a building could not be expanded into a section' of the building', that had been a gift shop because it was "a use different from a penny arcade." PAGE 41 -66: "=In Sherrill House, Inc. v. Board of Appeals of Boston, 19 Mass. App. 274,473 N.E.2d 716 (1985), the city zoning board of appeal granted a property owner in a residential district permission to change his nonconforming use from a hospital to a correctional facility. In Town of E. Lyme v. Waddington, 493 A.2d 903 (Conn. App. Ct. 1985), the court held that the amended zoning regulations barred the owners of a restaurant from setting liquor in their establishment, where there was another building in which alcoholic beverages were sold within 1,500 feet from that restaurant. The court further held` that the applicable zoning_ regulation was the amended one and not the earlier regulation which was effective at the time of the previous administrative proceedings. The court noted that "[t]he zoning law or regulation to effect at the time of the decision of a court is controlling as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application." Since there was no ambiguity in the appikabie regulation, the court found that the restaurant owners were clearly in violation of the zoning ordinance. [b]-- Authorized Change of Use PAGE 41 -68: 4.2E But see Jewell Junction v. Cunningham. 439 N.W.2d 183 (Iowa 1989), in which the city challenged a care facility that changed its operations from care of elderly mental patients to care of young mental patients. The facility operated under "grandfather" nonconforming use status. The Iowa Supreme Court held that the burden was on the city to prove that there was a violation of the ordinance by showing that the facility exceeded its nonconforming Rel.30-V 6 Pub.8451 Name I 1 t r 5 3RDINANCE NO 10 -90- i a50 AN ORDINANCE OF THE MAYOR AND CITY OMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING SUBSECTION :15) "SATELLITE ANTENNAE" BY .ADDING MICROWAVE ANTENNAS AND AMENDING SUBSECTIONS (a) (b) THEREUNDER AND DELETING SUBSECTION (15) (c) OF SECTION 20 -3.4 SPECIAL USE CONDITIONS OF CHAPTER Z0, LAND DEVELOPMENT CODE OF THE CITY OF SOUTH MIAMI CODE OF ORDINANCES BY SPECIFYING NEW TERMS AND CONDITIONS FOR LOCATION, LANDSCAPING DIAMETER, HEIGHT, SETBACKS, GROUND COVERAGE, COLOR, NUMBER PERMITTED, INSTALLATION, MAINTENANCE AND PERMIT REQUIREMENTS; REPEALING ALL ORDINANCES OR PARTS, OF ORDINANCES IN CONFLICT HEREWITH, PROVIDING FOR'SEVERABILITY AND PROVIDING AN EFFECTIVE DATE. WHEREAs, The City of South Miami, through its Environmental aview and Preservation Board encourages excellence in the quality f architectural and environmental design and by promoting the rderly, harmonious and attractive development and redevelopment f the community in keeping with the goals of the Comprehensive lan; and WHEREAS, satellite earth stations and microwave antennas have Town in usage, particularly in the City of South Miami, NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY OMMISSION OF THE CITY OF SOUTH MIAMI FLORIDA: SECTION 1 That subsection (15) "SATELLITE ANTENNAE" (a)(b) )f Section 20-3.4, Special Use Conditions of Chapter 20 Land 1)evelopment!,Code of the City of South Miami Code of Ordinances be :mended as follows: 15) SATELLITE ANTENNAS: Satellite earth stations, restrictive to he sole purpose of receiving and amplifying microwave signals for _elevision 'reception shall be permitted as a Special Use in °esidential; and commercial zoning districts, and microwave antennas, restricted to the sole purpose of receiving and /or , ansmitting and amplifying microwave signals, shall be permitted as a Special Use in ,commercial districts, subject to the following ::ond'it ons'and restrictions: a) Satellite Earth Stations: That plans of satellite earth stations shall be submitted with each application for a building permit, which shall include a site plan indicating the height, diameter, color, location, setbacks, foundation details, landscaping and screening, ana That such plans shall be subject to approval by the .R.P.B. and :hat such satellite antennas shall be subject to he oilowing standards: Location 'aa) in RS, RT -h and RT -Q nistricts only 'ground - mounted antennas shall he permitted and such antennas shall -e located in the rear of that 7rcverty or in t`?e intericr side yard and not visable *roan the street. =Z ail other districts, roof - mounted antennas snail be cermizted, provided, :Lowever, zhat such antennas snail Ze screened from around view by a parapet or some other tvpe masonry wail or screening. The minimum height and desian of such parapet, wail or screening snail to ubject to approval by :he _.R.P.B. U 0 t�#4 ' cci ground- mounted antennas shall also be cermitted in_RM- 18 RM -24 and commercial iistricts Subject _o _he applicable provisions of this section. _�. Landscaping aa) Ground mounted antennas shall be screened tv landscaping from view from the street and adjacent property owners so that such antennas are not visible between around level and eleven (11) feet above ground level as shall be approved by the E.R.P.B (bb) In order to reduce the height of the required plant material, berms may be employed in conjunction with the landscaping- plan. All plant material, size (at installation) quantity and spacing shall be specified on the landscaping plan or site plan. iii. Diameter (aa) The diameter of such antennas shall not exceed ten (10.) feet in all RS, RT -6 and RT -9 Districts (bb) The diameter of such antennas shall not exceed fifteen (15) feet in all other districts iv. Height (aa) Ground - mounted antennas shall be limited to a maximum height of eleven (11) feet above grade in all RS, RT -6 and RT -9- Districts and a maximum of fifteen, (15) above grade in all other districts. (bb) Roof- mounted antennas shall be limited to a maximum height of fifteen (15) feet above the roof. v. Setbacks Ground.- mounted satellite antennas in the most extended position shall conform to the following minimum setbacks: aa) (1) Rear and Side In all. RS, RT -6 and RT -9 Districts fifteen (15) feet and in ail other districts, rear and side setbacks shall be provided as are required for the orincia_al building on the building site. 2; - etbacks from Power Lines Satellite antennas cr any appurtenances thereto, shall be located not less than eight 8) feet from any powerline over two - hundred fifty (250) volts. bb; =n no case shall such satellite antennas be located closer to the front or side street of a lot or building site than the main or principal building. zc; where such a satellite antenna is located on a building _ite whiz n is fronting -anon two or :yore streets, t.'ie antenna snail maintain the same setback as recuired =c.- crinci ai building along each such street. CWU S4S 10 N dwA� =:aDervious cbveraoe :he imcervious ccverage c -zucn .antennas snail -e ccunted :n computl:.g '�:.he -mioervacus :cveracie -cr auxa l iary 3nci accessory use struczures,- ocated upon one tuildlnQ site. �olor such satellite antennas and their anvur:snances snail be non- ref- lective black, :;reen or :he same ccior as the "wail to which it is attached (if not freestanding) and to the extent; possible, shall be compatible with the allpearance and character of the neighborhood. Number Permitted Only one (1) satellite antenna shall be permitted for each principal building. ix. Installation (aa) The installation, or modification of all satellite antennas shall be in accordance with all applicable construction and safety codes and procedures and shall meet the requirements of the South Florida Building Code. (bb) Roof- mounted antennas shall be anchored to the roof in conformance with the requirements of the South Florida Building Code. (cc) All antennas and appurtenances shall be so constructed and installed so as to withstand the forces due to wind pressure as provided for under the South Florida Building Code, and all applications shall include signed and sealed drawings by a professional engineer. X. Maintenance Such satellite antennas, appurtenances, landscaping and screening shall be kept and maintained in good condition xi. Public Hearing aa1 That an application = nstailaticn cf Sucn antennas shall be -jade to the Planning 3oard and cZe Plannina Board snail.oid a public ::earinq at whic.^ ai_ = nterested oersons snail be afforded an cpportsnit,z _c be reard. bb That t::e recommendations cf _.e Planning Scar, , cn _ac:ft avpiicazicn considered, =_nail .e submit-:ea :c and acted 1pon by :ne City --ommisslon. cc: That _n aeprovina the aopiicat_On -for --.'-.e _nstailatlon of she ateilite antenna, = le ?lanni::a 3card may recommence -and _he Citv commission 7iav Crescribe appropriate ccnditions and sareauards with :he crovisions cr ="e Land Deveicoment -cde. .nnuai 7eview and _zoprcval - .• r -- -- rcc_ ^eaui rec cn do - annua i enewal "acn "-e an 3DD 1 i fan' na i i :e ' ? ^U1 ren DiTil n,jo -ne !rLonn3 _,'on e : -reeL --no �_:'acenT :rcDer " °S = _zSUre =fT1D I a bistussloN�� ` tb1 ioiations cf specified ccnditl;,ns and safeguards. when made part of the terms _7naer wnich the antenna is approved or the various provisions of this section shale be deemed grounds for revocation of the auxiliary use and ounishable as a violation of the Land Deveiopment Code. cc lo All antennas ^.sta led crior to = e doation f ordinance -gust to brought Into =mniiance wi:ttI. _30 days. :viii. Governmental Exemption (aa) When it can be demonstrated that the use of a satellite antenna by a governmental agency at a, specific location will provide a significant public benefit and purpose and will contribute to the health, safety or welfare of the general public, and in particular the residents of this City, then, upon recommendation of the Planning Board and with the approval of the City Commission, any of the conditions or restrictions provided in subsection 15 (a) i through' viii pertaining to location, landscaping, diameter, height, setbacks, ground coverage,'' color and number permitted may be waived or appropriately modified in the best interest of the surrounding neighborhood. (bb) Approvals for satellite antennas, when a public purpose has been demonstrated, shall be bound to a specific applicant and location. The change of an approved' applicant or location shall invalidate the approval and necessitate re- application and public hearing. xiv. Permit Required All satellite antennas located in the City of South Miami, Florida, must have a permit. ;b) Microwave Antennas: That plans of such microwave antennas shall be submitted with each application for a building permit, which shall include a site plan drawn at a scale no smaller than l"= Z0' -011 indicating the diameter, screening, location and setbacks from property lines and edges of building, a mounting detail drawn at a scale no smaller than 1/211' 11-011 indicating the height, color and method of installation of the antenna and that such plans snail be subject to approval by the E.R.P.B. and that such microwave antennas shall to subject to the following standards: ocaticn aa; :.- commerciai districts =iv, roof - mounted`.:icrcwave antennas snail be permitted, provided, however, that such antennas snail not be visible from the around. _creeninQ from around view may be crovided by a parapet cr some ether tvpe of masonry wail or screening. iameter -he diameter :f such -:_crcwave antenna _.all _: <csea =_,re , feet. Cor WSS 10 N 44k �. `-eignt Root- mounted intennas _nai' ce I imited -o _ maximum heiaht of ten ii0) -eet ,hove the --o :n - ,ear :post extended position. 7. Setbacks aai woof- mounted microwave antennas, in their most extended position, shall conform to the setback requirements for the principal building on the building site. (bb) Microwave antennas or any appurtenances thereto shall be located not less than eight (8)- feet from any power line over two hundred fifty (25'0) volts. V. color Microwave antennas and any appurtenances shall be white or shall be the same color as the surface to which they are attached, vi. Number Permitted Only one (1) microwave antenna shall be permitted for each principal building. vii. Installation (aa) The installation or modification of microwave antennas shall be in accordance with all applicable construction, safety codes and anchoring procedures and shall meet the requirements of the South Florida Building Code. (bb) The microwave antenna and appurtenances shall be constructed and installed so as to withstand the forces due to wind pressure as provided in the South Florida Building Code, and all applications shall include signed and sealed drawings by a professional engineer. Maintenance Such microwave antennas, appurtenances and screening snail be kept and maintained in good condition. X. Public Hearina as hat an appiication for the installation of _ach antennas snail be :jade to the Planning Board and the Planning Board shall hold a public hearing at which ail interested zersons snail be afforded an ' opportunity to be 'ne'ard. b, --gat the recommendations of the Planning` Board, --n each application considered, shall be submitted to and ce acted upon by the city Commission. -hat in approving the application for the instailation -he -�icrowave antenna, the Planning Board -av _eccmmend and the its, - ommission may prescribe appropriate conditions and safeguards :� ccnformzt; ne provisions of the "_and Development Ccde. :oiations c sDecif_ed ccnd it- ions and safeauares n e n -ade cart cf the _erns _:naer 'anic. =: ^.e antenna _.. 6 1SCuS5)on1 2.." approved or the various ;provisions _ of this _section shall be deemed grounds or revocation of the auxiliary use and ounishabie as a violation of the-and Development Code. ee) All antennas installed prior to the adoption of this ordinance must be brought into compliance within 180 days. Permit Required All microwave antennas located in the City of South Miami, Florida, must have a permit. Section 2. That subsection (15)(c) of Section 20 -3.4, Special Use Conditions of Chapter 20, Land Development Code of the City of South Miami, Florida, be and the same is hereby deleted. Section-3, All Ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 4. If any sentence, section, clause or phrase is held to be invalid or unconstitutional by any court of competent jurisdiction, it shall have no effect on the validity of the remaining portions of the ordinance. Section 5. This ordinance shall take effect immediately at the time of its passage. PASSED AND ADOPTED this 21st day of August 1990. ATTEST: LL-L ?�� :BEAD AND APPROVED AS TO FORM: .I '_-Y : _TTCRNEY APPROVED: OR f RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, GRANTING AN AMENDMENT TO THE SOUTH MIAMI HOSPITAL PLANNED DEVELOPMENT BY ALLOWING A RELOCATION OF THE COMMUNITY HEALTH EDUCATION AND IN- SERVICE EDUCATION FACILITY A CONSOLIDATION OF THE ENERGY CENTER PROVIDING A "SOLID WASTE HEAT RECOVERY" FACILITY; AND THE ADDITION OF A SECOND STORY TO ACCOMMODATE TWO OPERATING ROOMS ADJACENT TO THE SURGICAL'' SERVICES FACILITY ON PROPERTY LEGALLY DESCRIBED AS LOTS 1 THOURGH 11 AND THE W 1/2 OF LOT 12. BLOCK 3. 'OAK HEIGHTS". ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 46. AT PACE 64. OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. AND LOTS I THOURCH 5, LOTS 23 THOURGH 26 AND THE SOUTH 1/2 OF LOTS 6 AND 22. `REVISED POINCIANA PARK', ACCORDING TO THE PLAT THEREOF. AS RECORDED IN PLAT BOOK 41, AT PAGE 41, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA: • AND THE SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWNSHIP 54 SOUTH, RANGE 40 EAST. DADE COUNTY. FLORIDA. LYING NORTHWESTERLY OF THE YETRORAI RIGHT -OF -WAY. LESS THE NORTH 25 FEET AND THE EAST 35 FEET THEREOF, ALSO LESS THE EXTERNAL AREA FORMED BY 15.00 FOOT RADIUS ARC CONCAVE TO THE SOUTHWEST. TANGENT TO A LINE 25 FEET SOUTH OF AND PARALLEL 10 THE NORTH LINE OF " THE SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION 36. AND TANGENT 10 A LINE 35 FEET WEST OF AND PARALLEL 10 THE EAST LINE OF THE NORTHWEST > 1/4 OF SAID SECTION 36; THE WEST 1/2 OF THE NORTHEAST 1/4 Or THE SOUTHEAST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION 36 LYING NORTHWESTERLY OF THE VE1RORAIL RIGHT -Of -WAY; AND THE FOLLOWING PORTIONS OF VALLIAM A.H. HOBBS SUBDIVISION. ACCORDING TO THE -PLAT THEREOF. AS RECORDED 1N PLAT BOOK 4, AT PAGE 111, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA: LOTS 6 THROUGH 14; THE EAST 50 FEET OF LOT 15 LOTS 26 THROUGH 29; A SIXTY FOOT WIDE STRIP SOUTH OF AND ADJACENT TO LOTS 8 AND 9, ALSO KNOWN AS SOUTH STREET; EAST AVENUE LESS THAT PORTION LYING WITHIN 50 FEET OF THE NORTH LINE OF THE NORTHWEST 1/4 OF SECTION 36. TOWNSHIP 54 SOUTH. RANGE 40 EAST; TRACT 2. LESS THE SOUTH 25 FEET AND THE EAST 35 FEET THEREOF, ALSO LESS THE EXTERNAL AREA FORDED BY A 25.00 FOOT RADIUS ARC CONCAVE TO THE NORTHWEST, TANGENT TO A LINE THAT IS 25 FEET NORTH OF AND PARALLEL TO THE SOUTH LINE OF SAID SOUTH TRACT Z AND TANGENT TO ALINE 35 FEET WEST OF AND PARALLEL TO THE EAST LINE OF SAID TRACT 2; LOTS 18 THROUGH 25 LESS THE EAST 35 FEET THEREOF; LEE EAST 50 FEET OF LOT 16. LESS THAT PORTION DESCRIBED AS PARCEL 48 AS CONTAINED IN OFFICIAL RECORDS BOOK 4763. AT PAGE 669, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. ALSO LESS THAT PORTION CONTAINED IN CIRCUIT COURT MINUTE BOOK 769. AT PAGE 608. OF THE PUBLIC RECORDS OF DADE COUNTY.. FLORIDA-. LOT 17. PARCEL 46 AS CONTAINED IN OFFICIAL RECORDS BOOK 4774. Al PACE 296, OF THE PUBLIC RECORDS OF DADE COUNTY. FLORIDA: ALL LYING AND BEING IN THE CITY OF SOU1H MIAMI, .DADE COUNTY. MOM a/k/a 7400 S. W. 62nd Avenue, South Xiami, Florida. y WHEREAS, on June 4th, 1985, the Mayor and Commission of the City of South Miami passed Resolution 54 -85 -7019 to permit a Planned Development - Hospital District (PH -HD) in favor of South Miami Hospital; and WHEREAS, pursuant to the Zoning Ordinances of the City of South Miami, Florida, South Miami Hospital has made formal application to amend the final plans approved by the above- referenced: resolution; and WHEREAS, after review of the Director- of Planning, Zoning & Community Development, the Environmental Review & Preservation Board and the Planning Board, approval has been recommended for the proposed changes by South Miami Hospital, with the Planning Board recommending 6 -0 to grant the requests. X(N. THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY CONNISSION OF THE CITY OF SOUTH XIAXI, FLORIDA: Section 1. That the Special Use Permit granted by Resolution Ho. 54 -85 -7019 be and the same is hereby amended to allow the following: (a) relocation of the community health education and in- service education facility; (b) a consolidation of the energy- center providing a "solid waste heat recovery facility" (c) an addition of a second story to accommodate two operating rooms adjacent to the surgical services facility, the above a -c as sbown r Maspons,'Gaicuria and Estevez, which are hereby incorporated into the Planned Unit Development. Section 2. That in its exercise of quasi- judicial authority, the Mayor and City Commission makes as a finding of fact supporting this amendment to the original resolution, that the 411/ ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY Resolut /7400 S. W. 62nd Avenue (c) one (1) menu board shall be permitted at a fast food restaurant, not to exceed thirty-five (35) square feet in area or seven and one -half (7.5) feet in height. Section 3. 1f any section, clause, sentence, or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance P I READ AND APPROVED AS TO FORM CITY ATTORNEY 2 I S Q Plarirzirng -L- Tuesday November 27, 1990 Commissioners' Chambers 7:30 PM A. Call to order and the Pledge of Allegiance to the Flag of the United States of America B. Roll Call. Present Absent Larry Ligammare John Eisenhart Manuel Gutierrez, Jr.' John Lefley (arr. 7:35) !Diana Gonzalez Sharon Jenkins Robert Parr Also present were; Sonia Lama, B & Z Director; Bill Mackey, Planner and Pat DeLisa, Board Secretary. C. The Minutes of November 13, 1990 were approved with 'he inclusion that Mr. Parr had been tardy. Motion to approve >byiMS. Gonzalez, seconded by Mr. Parr. Vote: Approved: 6 Opposed: 0 D. Public Hearing. Chairman Ligammare called upon Staff to explain the reason for this request being brought to a Public Hearing for the second time. Mr. Mackey stated' that, in the interest' of proper notice, he had discussed the previous notice with the 'City Attorney who felt that, inasmuch as the partial waiver of paving was not included in the first notice, it would be proper to re- notice and repeat the hearing to include proper notice to the community of all the items that were reviewed by this Board. This will proceed on schedule to the Commission for final- hearing on December 4th. Tonight's hearing is to ''replace the previous one held November 27th. PB -90 -018 Applicant: Stan Toledo Request #1s Waiver of 'required sidewalks, curbs and gutters -in the public right -of -way per Section 20 -4.2 (C) (1) of the adopted Land Development Code PB Minutes 1 11 -27, 1990 Request #2: Partial waiver of required paving and drainage in the public right -of -way per Section 20 -4.2 (C);(1) of the adopted Land Development Code. Legal: East 1/2 of the NW 1/4, of the NE /4 of je SW 1/4 less the South 125 feet and less the North 285 feet of Section 24, Township 54 South, Range 40 East, lying and being in Dade County, Florida. Location: 6314 SW 49 Street Chairman called. the Public Hearing open and asked Mr. Parr to read the request. Mr. Ligammare stated that Mr. Toledo would give a brief synopsis of the proposal and that only issues not covered in the meeting of November 27th would be addressed tonight. Regarding the subject of sidewalks meandering around the trees on 49th Street, Mr. Toledo stated that he had engaged a tree expert to look at the trees which had been discussed at'the last meeting. The tree expert had advised that any sidewalks which may be installed must be far enough away from the base of the trees to prevent their being harmed.' The middle parcel (Parcel B) of the property has four trees which are in the easement. If the sidewalk` is installed as has been suggested -, it will encroach on private property. To go in the opposite direction would place the sidewalk only 2 feet from 'the street and interfere with Its drainage. The third alternative is to cut the trees 'down. 'He said that if those parties who are interested were to inspect the property, they would see the merit of not putting in the sidewalk at all. As regards the " Tee" which he had proposed during the last meeting, in answer to the request of the Board to find an alternate plan to the "Tee", he suggested` the use of a "half -ess" in a 12 ft private drive. Mr. Toledo said that once the City has determined what he is to do regarding the sidewalks and streets, he suggests that he delay the installation of these sidewalks and streets and allow him time to make agreements with the buyers that it will be their responsibilities to install these sidewalks and streets. This will prevent the destruction of the sidewalks and streets while any future' construction is in progress. Ms. Gonzalez asked about the proposed alternate entrance to Parcel F and the attempt to save trees #117 & #118. Mr. Toledo stated that he suggests making 50th Street dead.. -end and stay at least 8' away from the root system of those trees. The street will circle around the extreme Southern boundary of the property line. This will not interfere with the green space which s she required 50 ft of dedicated property. PB Minutes 2 11 -27, 1990 Mr. Lef ley questioned the part played by HRS in this ,project to which Mr. Toledo explained that HRS has a requirement that, in order to have drain fields the .sq ft of the property be a minimum of between 10,000 and ,11,000 sq ft and does not include the right of 'way. DERM requirements are 15,000 sq.;ft but allow does the measurement from the center line of the street The resident at 6369 SW 50th Street signed in. His only objec -ion is once these proceedings and requirements are made a part of the record and the properties are sold and are in the hands of other people, those people may return at a later date, asking for other variances. He believes that Mr. Toledo should submit a completed plat with all covenants so that it cannot be changed at a later date. This should ensure that future owners cannot subdivide_ these lots Mr: Frank Tuggle of 6259 SW 50 Street signed in and stated that the two trees previously mentioned should be cut down and the sidewalk placed there. Mr: Bill Candell signed in and stated that he would like to see the motion made by Mr. Gutierrez at the last meeting approved unanimously.' In 'addition, he asks the Board to require that the maintenance of the proposed green space be paid by the developer. The Public Hearing was closed and Executive Session called. Mr: ,Lefley asked Staff to clarify Request #2. Mr. Mackey stated that Request #2 deals only with paving and drainage. Mr. Lefley stated that the public here tonight should be 'made aware that this meeting tonight deals only with those items listed in Requests #1 and #2 and not with future 'platting, covenants or anything ,else which may relate to the future of this property. He Also suggests that a split sidewalk around the trees be considered. There being no other questions from the Board, Mr. Ligammare called the Executive Session to a close and 'asked , for a Motion. Motion by Manuel Gutierrez, Jr. Request #1: "I would like to make a motion to approve Request #1 which is granting the waiver of the required sidewalks, curbs and gutters in the Public Right -of -way per Section 20 -4.2 (c) (1) of the adopted Land Code with the following recommendation to the City Commission. That the sidewalk requirement on SW 49th Street (on' the North side of the property in question) shall not be waived. Said sidewalk to be constructed as per City of South Miami standards as much as possible, considering that adjustments: shall bei made in the sidewalk design to avoid cutting down any mature trees whenever practically, possible. The owner shall prepare and submit to the City I Commission a survey showing the proposed sidewalk and existing trees inithe property. Said subm'itta'l shall be made prior to or in conjunction with the owner's building permit' PB Minutes 3 11 -27, 1990 application for any development of the lot in question or part of it. Recommendation #2: That this waiver is not perpetually granted and the .City of South Miami has the right', at any timer to amend that the applicant or future owners of the property will complete the balance of the required sidewalks, curbs and gutters." Seconded by Mr. Parr. Vote: Approved: 5 Opposed: 1 (Jenkins) Request #2t Manuel Gutierrez, Jr.: "I would like to make a motion that Request #2 will be approved and grant the partial waiver of the required sidewalks, curbs and gutters in the Public Right -of -way per Section 20 -4.2 (C)(1) of the adopted Land Development Code: with the following recommendation to the City Commission. I would like to recommend that an alternate paved access be :submitted other than the one presented to us today in the blueprints. Said alternate plan will be presented in the way of a survey, again showing the proposed paved access and the mature trees in the property, avoiding cutting down the two trees whenever practically possible. This submittal to the City Commission is to be made prior to or in conjunction with the owner's building permit application for any development of the lot in question or subsequent owners. "' Seconded by Mr. Parr: Vote: Approved: 5 Opposed: 1 (Jenkins) Ms. Gonzalez made a motion to recommend that Parcel E be dedicated as a greenspace as was contained in the Planning Board Minutes of November 13, 1990. Seconded by Mr. 'Parr. Vote: Approved: 6 Opposed 0 A five minute recess was called by the Chairman. PB -90 -025 ens Request: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;' AMENDING SECTION 20-2.3 OF THE LAND DEVELOPMENT'CODE'`OF THE CITY OF SOUTH MIAMI TO PROVIDE SPECIFIC DEFINITIONS FOR CATERING SERVICES; RESTAURANT; RESTAURANT, ACCESSORY AND RESTAURANT, FAST FOOD; DELETING EATING PLACE DEFINITION FROM' PB Minutes 4 11 -27, 1990 a; SECTION 20-2.3; DELETING EATING _PLACE FROM SECTION 20 -3.3 (E); DELETING EATING PLACE (ACCESSORY) FROM SECTION 20 -3.3 (:E); PROVIDING THE AFORESAID RESTAURANT CATEGORIES AS SPECIAL USES IN SECTION 20-3.3 (E); PROVIDING SPECIAL USE CONDITIONS FOR RESTAURANT AND RESTAURANT,' FAST FOOD IN SECTION 20- 3.4;(B)(4); PROVIDING_ FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING FOR AN EFFECTIVE DATE. g request. Chairman called the meeting to Ms. Jenkins read the re ues Jerry Proctor, Land Use Administrator for Fine, Jacobson, representing Taco Bell, signed in and addressed the Board. He stated that the spacing of 300' (page 2 of the Ordinance) both for "restaurants and restaurants, fast food" should be considered (1) should there be such ,a spacing and (2) how should it be measured. The Ordinance is unclear is these areas He suggests,, particularly as regards fast I foods, a''measurement of "building to 'building" would be sufficient. This would create a safety measure!in terms of drive' - through lanes, exit lanes onto a road or any other types of conflict that could arise. He asks that this be considered in Board deliberations. None of this would affect his client as they have already received approval for their ,project: These suggestions would apply,to future applicants. Chairman closed the Public Hearing. Mr. Mackey stated that Mr. Proctor had covered the Commission requests, specifically the property line-to-propert y line issue, clarification of definitions, etc. Ms. Jenkins askedI if the City now observes the property line -to- property line rule and Mr. Mackey said that this is true as it is the most restrictive manner in which to measure. A precedent for this is 'based on the alcoholic beverage ordinances,-of the Code of Ordinances. After a lengthy discussion during which Mr. Mackey clarified requirements of the Land Development Code regarding this issue, Mr. Ligammare called for a motion. Mr. Lefley made a motion to approve the request as written subject to those corrections noted Seconded by Mr. Parr. Ms. Gonzalez recommended an amendment to the motion asking that the 300' rule be clarified as to how it is measured, by making it a building -to- building measurement. Mr. Lef ley and Mr. Parr accepted' the amendment as stated. PB Minutes 5 11 -27, 1990 Mr. Gutierrez felt that this definition could; be unfairly restrictive, citing an example of two lots with restaurant zoning on which the first restaurant is built next to the 'property line. The second restaurant will have to be 'positioned 3001 away, therefore, possibly creating a problem for that property owner. Vote: Approved: 4 Opposed 2 (Jenkins) (Gutierrez) E. Remarks Mr. Gutierrez requests that the feasibility of this Board being able to make recommendations to other Boards in the City be addressed`. Mr. Mackey stated that each Board has certain powers as defined in .the Land Development Code by the Commission. If Mr. Gutierrez, as member of the Board or by request of the Chairman, wishes to submit a letter to the City Manager, who will ,forward it to the Director of Building & Zoning, who will give it to Mr.Mackey to place an item on the agenda of the Planning Board concerning altering the Land Development Code to include some process whereby the Planning Board may choose, recommend items to appear before the ERPB for their approval prior to Commission approval. It must be spelled out in procedural changes that are clearly specified, as a part of a process that every applicant must follow. Mr. Parr asked Mr. Gutierrez and Ms. Gonzalez to speak to the City Manager about information, that may be helpful in the selection of chairs for the dins in the Commission chambers: Mr. Lefley asks that a Staff member explain each item as it first " comes before the Board, in 'clear and concise terms so that the public and everyone present is aware of the exact parameters of each issue. By doing so, extraneous' discussions' can possibly be avoided, thus reducing the length of some meetings and allowing the Chairman more control. Mr. Ligammare suggested that, perhaps, he might have this in written form from Staff and read it openly before the subject is opened for discussion. Mr. Mackey said that the Board members can call and speak to him ati any time if they have any questions at all. F. Adjournment Secretary Chairman PB Minutes 6 11 -27, 1990 i Mr. Gutierrez felt that this definition could; be unfairly restrictive, citing an example of two lots with restaurant zoning on which the first restaurant is built next to the 'property line. The second restaurant will have to be 'positioned 3001 away, therefore, possibly creating a problem for that property owner. Vote: Approved: 4 Opposed 2 (Jenkins) (Gutierrez) E. Remarks Mr. Gutierrez requests that the feasibility of this Board being able to make recommendations to other Boards in the City be addressed`. Mr. Mackey stated that each Board has certain powers as defined in .the Land Development Code by the Commission. If Mr. Gutierrez, as member of the Board or by request of the Chairman, wishes to submit a letter to the City Manager, who will ,forward it to the Director of Building & Zoning, who will give it to Mr.Mackey to place an item on the agenda of the Planning Board concerning altering the Land Development Code to include some process whereby the Planning Board may choose, recommend items to appear before the ERPB for their approval prior to Commission approval. It must be spelled out in procedural changes that are clearly specified, as a part of a process that every applicant must follow. Mr. Parr asked Mr. Gutierrez and Ms. Gonzalez to speak to the City Manager about information, that may be helpful in the selection of chairs for the dins in the Commission chambers: Mr. Lefley asks that a Staff member explain each item as it first " comes before the Board, in 'clear and concise terms so that the public and everyone present is aware of the exact parameters of each issue. By doing so, extraneous' discussions' can possibly be avoided, thus reducing the length of some meetings and allowing the Chairman more control. Mr. Ligammare suggested that, perhaps, he might have this in written form from Staff and read it openly before the subject is opened for discussion. Mr. Mackey said that the Board members can call and speak to him ati any time if they have any questions at all. F. Adjournment Secretary Chairman PB Minutes 6 11 -27, 1990 i r // �^ � -Z 'j �� „�� - -,�� /a /� , they.should be forwarded to: ecorder Ll Flagler Street 1 33101 account is due, then each check must alarm $150, lot cleaning $50.) SEARCH FOR THE HISTORY OF SAID PROPERTY, Finance Department City of South Miami 'leasant Living" ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE 1rTV .L. - - OF ' SPUTH MIAMI, FLORIDA; AMENDING SECTION 20-2.' OF THE LAND DEVELOPMENT CODE OF THE CITY OF SOUTH '*T.IAMI TO PROVIDE A SPECIFIC DEFINITION FOR SIGN, MENU BOARD; AMENDING SECTION 20-4.3 (I)(3) PROVIDING FOR A MINIMUM FRONTAGE REQUIRED FOR DETACHED SIGNS, REGULATING THE SIZE OF DETACHED SIGNS, AND PROVIDING FOR MENU BOARD SIGNS; PROVIDING FOR SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Mayor and City Commission desire to make provisions to allow menu board signs in conjunction with detached signs in the Land Development Code of the City of South Miami, NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. That Section 20-2.3 DEFINITIONS be amended as follows: SIGN, MENU BOARD. Shall mean a sign with a listing of food and beverage offerings for drive-in patrons of fast food restaurants. Menu' board signs ma y include microphones for customer use within i the :menu board sign structure. Section 2. That Section 20-4.3 (1)(3) be amended as follows: (3) Minimum street frontage of one hundred (100) lineal feet is required; direct illumination permitted; reduced setbacks of ten (10) feet shall be permitted (.for signs only) as follows: (a) One (1) sign per lot, not to exceed thirty-five (35) square feet in area or twelve (12) feet in height. (b) For shopping centers, two (2) signs not to exceed - -- twenty-five (25) square feet in area each or twelve (12) in height. (c) one (1) menu board shall be permitted at a fast food restaurant, not to exceed thirty-five (35) square feet in area or seven and one-half (7.5) feet in height. Section 3. If any section, clause, sentence, or phrase of this ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this ordinance. Section 4. All Ordinances or parts of Ordinances in conflict herewith be and the same are herebv repealed. Section 5. This Ordinance will take effect immediately at the time of its passage. PASSED AND ADOPTED this day of , 1990. APPROVED: MAYOR ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY RESOLUTION NO. "SOLUTION OF THE MAYOR AND CITY COMMISSION OF CITY OF SOUTH MIAMI, FLORIDA, TO DESIGNATE A :SON TO ALL BOARDS AND COMMITTEES OF THE CITY i0 UTH MIAMI wnLREAS, in order to promote the efficient and proper administration of all Boards and Committees of the City of South Miami, the Mayor and City Commission wish to appoint liaisons to each City Board and Committee; and WHEREAS, the liaison shall be a member of the City Commission, including the Mayor, whose function shall be to attend scheduled meetings of the Board or Committee, to advise in event of any vacancy, and to keep the Mayor and City Commission and the public informed of the matters addressed and actions or recommendations of the particular Board or Committee the liaison represents. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. The Mayor and City Commission hereby appoint liaisons to the following Boards and Committees of the City of South Miami, Florida: a) Recreation Board Comm. Banks b) Public Safety Advisory Board Comm. Launcelott c) Capital Improvement Advisory board Comm. Cooper d) Commercial Development Board Comm. Carver e) Charter Review Committee Mayor McCann f) South Miami Action Committee Mayor McCann Section 2. The liaison to each Board or Committee shall be appointed by the Mayor and shall serve until resignation or a vacancy shall exist. PASSED AND ADOPTED this day of , 1990. APPROVED: ATTEST: CITY CLEB[ READ AND APPROVED AS TO FORM: CI TY ATTOMEY RESOLUTION NO A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, 'FLORIDA, AUTHORIZING THE PURCHASE OF ONE VERMEER MODEL 1250 CHIPPER FOR THE PUBLIC WORKS DEPARTMENT FOR A TOTAL ,PRICE NOT TO EXCEED $16,300 AND PROVIDING FOR DISBURSEMENT FROM ACCOUNT NUMBER 1720 -6430. WHEREAS, pursuant to the 1990 -91 Budget of the City of South Miami, Florida, the Public Works Department of the City of South Miami, Florida was authorized to purchase one Vermeer model 1250 Chipper and; WHEREAS, the Administration of the City of South Miami has now obtained 'a cost of $16,300 from Southeast Sales & Service Inc. persuant to the following governmental bid: 89 -FB77 City of NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI , FLORIDA: Section 1. That a purchase order is hereby awarded to Southeast Sales & Service, Inc. in an amount not to exceed $16,300 for one Vermeer Model 1250 Chipper. Section 2. That the disbursement be charged to account number Public Works 1720 -6430. PASSED AND ADOPTED this day of , 1990. APPROVED: MAYOR ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA GRANTING A REQUEST FOR A SPECIAL USE PURSUANT TO SECTION 20 - 3.4 (B) (4) (b) OF THE LAND DEVELOPMENT CODE OF THE CITY OF SOUTH MIAMI TO PERMIT A FAST FOOD, DRIVE -IN EATING PLACE, BY TACO BELL CORPORATION FROM THE PLANNING BOARD OF THE CITY OF SOUTH MIAMI, FLORIDA FOR THE PROPERTY KNOWN AS 6310 6320 'SOUTH DIXIE HIGHWAY, 'SOUTH MIAMI, FLORIDA, AND LEGALLY DESCRIBED HEREIN WHEREAS, the Taco Bell Corporation requested the Planning Board of the City of South Miami as follows: a Special Use pursuant to Sec. 20 - 3.4 (B) (4) (b) of the Land Development Code of the City of South Miami, Florida to permit a Fast Food, Drive -In Eating Place in a GR district, (it being understood the second building in the plans designated "Future Retail" is not included in this Request) for the property known as 6310 - 6320 South Dixie Highway, South Miami, Florida, which property is legally described as follows: Lots 1, 2, 3, and a portion of the area designated "Reserved For Parking" (set forth in the attached Exhibit "A"), Block 5 of OAK HEIGHTS. according to the plat thereof as recorded in Plat Book 46 at Page 64 of the Public Records of Dade County, Florida; WHEREAS, on September 25, 1990, the Planning Board voted to recommend granting (with three provisos attached hereto as Exhibit "B ") the special use request by a 4 2 vote; and WHEREAS, the City Commission Staff Report recommended denial of the request NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI. FLORIDA: Section 1. That Reauest no. 2 of the Taco Bell Corporation to permit a Fast Food, Drive -In Eating Place in a GR district, where such use is permitted only as a special use, for the XI IN ?v_ — .�.. .. NEW -- -DROP CURB ® C ® NEW 5' CONC. WA �5, 10 U O. 30. 2O O GUTTER as A " BUILDINU Y 25 ® 4, or plat N U 1 cr (n _SIDEWALK LrR r 5: � a '� P~ R. \ � R2.5� Apr ' A I` p � ,4 19 � ® 20 -Q" a25 4 .. ® II I R- 2.1f ji 41 . _ `�` 5' _ -y 17 b _ - 14 29 b Air- 1 `I R=te R--yy' ® II CURB IF 46 p PROPOSED TACO BELL NQ o Q A ® 0� GOi� I 47 a o NI LED.. c Vl/ I N O n V 49 y n R=V 12 Q �� °-' O uK 'ENTER n 54.0 -_o I I II �.DO NOT, Ni \ 12 R =8 f R =L5 R_d R-8- p II o c� 25' 0 - -01 '01 r 12 =0� 5 X12 -0° cI 3 S_P SAT 9'd' v� 24_0_ 9�0 4 SPACES AT 9'0 5 }4. SPACES AT9 =0" V 9 180 5 �I o 0 v N, L. �— _ 7 -0 36 -0 =36-0 R =S R=25 R =45 2.5 54 50 4 I 4 I L6 �I C LD' 1 V >'. Rd T — . 1 Im ., EXIST CONC.. O. DRIVE TO BE REM_ 25_0 o EXIST. CONC. DRIVE VISIB. TR IANGUf tO m BE REMOVED U.S. No. I f5 Q _SETBACK 68.17' I 240" L 107.83' property known as 6310 - 6320 South Dixie Highway, South Miami, Florida, be, and the same is, hereby granted, subject to the following site clan modifications: a. the provisos of the Planning Board; b. there be no exit /entrance on S. W. 78th Street; C. the exit /entrance on U. S. Highway 1 be widened to 30 feet; d. the exit /entrance on S.W. 63 Avenue be widened to 30 feet; and e. the main garbage collection receptacle be located parallel with the property line on which it is placed. PASSED AND ADOPTED this th day of November, 1990. APPROVED: MAYOR- ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY (1) the site plan be amended removing parking spaces 24 through 26 and this area be landscaped. (2) designating parking spaces 15 through 23 for employees only.. (3) that signage be accurately described in the site plan so that flow into the drive- through area would be from a southeastern direction RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI.. FLORIDA, SITTING AS LEGISLATIVE BODY ADOPTING THE CITY MANAGER'S RECOMMENDATIONS REGARDING "TASK ASSIGNMENTS "; "WAGES "; "MANAGEMENT RIGHTS "; "HOLIDAYS ", AND THE UNION'S RECOMMNEDCATIONS REGARDING "DRUG AND ALCOHOL TESTING" TO RESOLVE DISPUTED IMPASSE ITEMS IN THE - EMPLOYMENT `AGREEMENT BETWEEN THE CITY OF SOUTH MIAMI AND THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES. WHEREAS, the City of South Miami, Florida, and the American Federation of State, County and Municipal Employees (A.F.S.C.M.E.) entered into collective bargaining negotiations for the fiscal wear 1989/90; and WHEREAS, those negotiations between the City of South Miami and the A.F.S.C.M.E. ended in a statutory impasse; and WHEREAS, pursuant to Chapter 447, Florida Statutes, the Special Master has made recommendations which are not binding on either party and the legislative body of the City of South Miami must now hold a public hearing after which, such action will be taken as deemed in the best public interest, including the interest of the public employees involved, to resolve all disputed impasse items; NOW.. THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. That the amendment to "Task Assignment ", Article VIII, as recommended by the City Manaaer of the Citv of South Miami (a copv of which recommendation is attached hereto as Exhibit "A" and made a part hereof) be, and the same hereby is, adopted, provided that in the event there is impact bargaining of this item which reaches an impasse, the procedures set forth in Florida Statute 447.403 for resolution of impasse shall be employed. Section 2. That the amendment to "Wages ", Article XVIII, recommended by the Citv Manager of the City of South Miami be, and the same hereby is, adopted. Section 3. That the recommendations in the Special Master's Report regardina "Management Rights ", and "Holidays" (a copy of which report is attached hereto as Exhibit "B" and made a part hereof) be, and the same hereby are, adopted. Section 4. That the recommendations of AFSCME regarding "Drug and Alcohol Testing" (a copy of which is attached hereto as Exhibit "C" and made a part hereof) be, and the same hereby are, adopted, provided further the initial and confirmatory test levels shall be those set by the State of Florida Department of Health and Human Resources at any given time. PASSED AND ADOPTED this th day of November, 1990. APPROVED: MAYOR ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY 2 Next Resolution :133 -90 -9059 Next Ordinance: 24 -90- .1464 Next Commission Meeting: November 20, 199( A. Invocation B. Pledge of Allegiance to the Flag of the United States of America ORDINANCES - 2nd READING AND PUBLIC HEARING: None RESOLUTIONS: 1. A Resolution of the Mayor and City Commission of the City of South Miami, Florida, authorizing Gregory P. Borgognoni, Esquire, as special counsel for the City of South Miami to file and pursue an appeal of the final order entered against the City of South Miami in Dade County Circuit Court Case 89- 54386CA14 "Meenan V. CITY OF SOUTH MIAMI ". (COMMISSION) (3/5). ORDINANCES - 1st READING AND PUBLIC HEARING None REMARKS: None Discussion: ;Attorney John Fletcher with regard to the decision of the Commission I. in relation to issuing occupational licenses for all uses formerly classified as C -2 and C -3 for property at 5825 S.W. 68 Street, South Miami, Florida. - Discussion: Satellite Antenna Ordinance II (attached for your reference) RESOLUTIOr7 NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AUTHORIZING GREGORY P. BORGOGNONI, ESQUIRE, AS SPECIAL COUNSEL FOR THE CITY OF SOUTH MIAMI TO FILE AND PURSUE AN APPEAL OF TEE FINAL ORDER ENTERED AGAINST THE CITY OF SOUTH MIAMI IN DADE COUNTY CIRCUIT COURT CASE 89- 54386CA14 "MEENAN V. CITY OF SOUTH MIAMI ". WHEREAS, by Resolution dated May 15, IaGO, the City of South Miami authorized employment of 'Gregory P. Borgo,gnoni, Esquire, as Special Counsel of the City of South Miami. to defend the City in Dade County Circuit Court Case 89- 54386CA14 "Heenan v. City of South. Miami "; and WHEREAS, on October 4 1090, a Final. Order was entered in favor of the Plaintiff and against the City of South Miami; and WHEREAS, the Mayor and City Commission believe a valid and viable appeal exists and that it is in the City's best interest to appeal this Order. N01?, THEREFORE, BE IT RESOL17ED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. That Gregory P. Borgognoni, Esquire, Special Counsel ottthie City of South Miami he, and hereby is, authorized to file and pursue an appeal of the Final Order enterer] against the City of South Miami in Dade County Circuit Court Case 89 54386CA14 "Meenan v. City of South Miami ". PASSED AND ADOPTED this day of , 1990. APPROVED: ATTEST: MAYOR CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY TO. Mayor & Commission DATE: October 11th, 1990 FR °"'City Attorney Berg SUBJECT: Case Report I received a preliminary opinion in the Meenan Case (copy attached). Judge Feder ruled (on page 2): "An appropriate Order should be drawn enjoining the City from proceeding with the existing Land Use Plan designated for the subject property other than as Low tensity Office." Because this Opinion calls for another <')rder to he drawn, it is not the final Order in the case. Further, the language in the quoted paragraph should be clearer. Special Counsel, Gregory Borgognoni, will discuss this with opposing Counsel, John Fletcher, as well as the possibility of abating the Steinbauer Case, if the City decides to appeal. All of the foregoing will be discussed in detail at a Special Commission meeting to be set for the first week in November and therefore will not be discussed in my City Attorney's Report at the Special Commission meeting of -0 ctober 1 6th, loon. 1 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR DARE COUNTY, FLORIDA. GENERAL JURISDICTION DIVISION CASE NO. 89 -84386 CA 14 Jean Rich Heenan and William Heenan Plaintiff, vs. O R D E R City of South Miami, Defendant. This suit involves an attack on the rep- zoning of Plaintiff's property to a "Two Family /Townhouse Use" from Low Density Office by the Land Use Plan updated by the Defendant, City of South Miami in November, 1989. Use is limited to low density' residential use only. Thsa fnr *hAm f9npir+ 4e whdb* per +ha .► ya1iW f..na.Laq pi.an A2" been tm L'awiiwutm ny LLIW property owner to have been invalid. As oft- repeated by the Supreme Court, the question for this Court is whether the use decision by the municipal authority is "fairly debatable" or is clearly arbitrary. A map of the area is attached and shows than the area under discussion on Manor Lane is an island surrounded by swirling, noisome traffic. On the South there is a natural barrier of a drainage canal; on the East by Metrorai,l and US #1; on the North, ..eil .:. ..... shop, another office building South Miami Hospital parking garage and hospital buildings. On the West side of Manor Lane is a development of single family homes, but that also is separated since the homes do not face Manor Lane (with one exception) and �i►w rte.. w ww. •wiw1w w.. -.� -- 1. .... f /�.�+ r..�� Lam. LL___ L_ -__ J._ LL!_ area. The Defendant around 1982 -83, planted trees, concrete barriers across the intersecting roadways to bar all vehicular traffic from Manor Laney into the residential area thus showing a Municipal interest and desire to physically separate and isolate business from residential. The City succeeded. Manor Lane by this action has become a clogged artery which provides vehicular access from US #1 (at Davis) to Sunset Drive with no neighborhood T c, . .4 ?11-4Hn L31� 11 NH0r, 0 T 9 T :3n L AS -5 — J_SC; __ 40 access in the area of this subject property. This Palm-Tree- Curtain accentuated the other physical separation of the commercial island from the residential mainland. Traffic count in 182 -83 was 77 vehicles an hour; it is now ( '89) 177 vehicles an hour. The testimony of one Traffic Engineer clearly established that on both traffic decibel and vehicular volume levels, the property is unsuitable for 'residential , purposes. Add to this the existing grand - fathered commercial use to the contiguous properties on the North Side and it becomes patently absurd that the property could be used for low density residential purposes. It cannot be debated - fairly or otherwise - that the drainage canal separates the property to the South from the neighborhood to the North. [1] Nor can it be debated that the commercial area is an island or enclave unto itself, separate and apart from the residences to the West. Finally, it i not fairly debatable that the classification of this property as low density residential property is arbitrary and capricious and thus unconstitutional. An appropriate order should be drawn enjoining the city from proceeding with the existing Land Use Plan designated for the subject property other than as Low Density Office. DONE AND ORDERED, at Miami, Dade County, Florida, this day of October, 3990. cc: Gregory Borgognoni, Esq. John Fletcher, Esq. aL RICHARD YALE FEDER Circuit Judge [fit Even the City's expert, though denying that the canal is a "Barrier ", zoned the area to the South of the canal differently than the area to the North. its justifi- cation for not re- zoning the contiguous area to the North consisting of the South Miami Hospital area (which fronts unto more single family residences than the subject property) is equally unconvincing of an absence of arbitrariness; i.e. that the hospital is of a more economically "permanent" nature than the four existing commercial enterprises between the subject property and the Hospital. Smallness of an enterprise has never been a sign, cognizable in Law or in fact, of economic frailty; nor has hugeness been proof of economic health (c.f. Burdine's, Centrust, Eastern, Trump with Morgan Trust, Harry Winston, Joe's Stone Crabs 1�1- F4H0f' Z T ? i 3ni- OE. -r. -A-SC JoHN G. FLETCHER .ATTORNEY AT LAW SUITE 304 7500 RED ROAD SOUTH 241AXI, FLORIDA 33143 - 5484 TELEPHONE (305) 665-7521 FAX (305) 665 - 0328 October 18, 1990 Rose Mary Wascura South Miami City Clerk South Miami City Hall 6130 Sunset Drive South Miami, FL 33143 Re Mobley v City of South Miami, Case No. 90 -32116 Dear Rose Mary: Pursuant to our telephone conversation the purpose of this letter is to request that the subject of the Mobley property be placed on the agenda of the South Miami City Commission for its November 6, 1990, meeting. This is pursuant to the agreement that City Attorney Martin Berg and I reached in regard to that case styled Mable Mobley v. City of South Miami, Case No. 90 -32116 (CA 11). I enclose herewith a copy of the agreed order which is self explanatory. I would appreciate your confirming that this matter is going to be scheduled for the November y6, 1990, South Miami City Commission agenda. My many thanks for your usual courtesy. Cordia 1 , ohnlG. Fletcher JGF /wm CC: Martin Bera Dale Mobley t)vscuss lom .. f ro: Mayor and Commission =ROM! City Attorney City of South Miami INTER —OFFICE MEMORANDUM DATE:October 31, 1990 SUBJECT: John Fletcher as attorney for Mabel Mobley - question of nonconforming use John Fletcher, as attorney for Mabel Mobley, requests a policy direction from the City Commission to the City Manager to issue occupational licenses for all uses formerly classified as C -2 and C -3 uses for the property at 5825 S.W. 68th Street, South Miami Florida. Mr. Fletcher had filed a lawsuit to require (by injunction) the City to issue these licenses; however, at my argument on a Motion to Dismiss for failure to exhaust administrative remedies, Mr. Fletcher agreed and dismissed his suit (without prejudice) and is now seeking an administrative solution. By copy of this memo to the Building and Zoning Department, I am requesting back up information regarding, first, the C -2 and C -3 use schedules then applicable and, second, the actual uses that were established on the property prior to the present code being enacted. All uses established prior to the present code and not abandoned remain valid as nonconforming uses, i.e. they are "grandfathered ". The questions of fact to be determined are, then: 1) What uses were established? 2) Were the uses abandoned? Finally, Mr. Fletcher may attempt to argue that the establishment of any one use in a schedule establishes all other uses in the same schedule. I disagree with this argument. Case Law in many jurisdictions seems to indicate the contrary. IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 90- 32116 (CA 11) MABLE A. MOBLEY, Plaintiff, VS. CITY OF SOUTH MIAMI, Defendant. AGREED ORDER GRANTING The above matter having come on to be heard before the Court on October 3, 1990, on the Defendant's Motion to Dismiss and the City of South Miami having stated that the administrative remedy which is available to the plaintiff is to appear before the South Miami City Commission to seek a policy direction from the City Commission to the City ,4anager in relation to issuing occupational licenses for all .;ses formerly classified as C and C -3 uses on the property in question, and the parties having agreed that the matter will be set before the South Miami City Commission on its agenda -.-J: November 6, 1990, it is prejudice. DONE AND ORDERED this day of�)ri , 1990. 0 T7 MARIA iiM. KORVICK Circuit Judge Copies Furnished: Martin Berg John G. Fletcher ISCUSS)ON:Ur.� �W OF Z""0 NING 3d Roder by t College � ` tiers Ilege Of Lew of Law Erne se acu nrverslt�, f I 86 THE Rork �wYEl�g L,0 �� olopT wh�TH O6g4 �t �yE pU$()gh)NC ~~ a EY o. s� ' Calif CO. C Orofs 94107 w i NONCONFORMING USES § 6.37 as more flexible, are ordinances which permit change of a nonconforming use with approval of a board of adjustment or other administrative body. Where the cases disclose the text or the general tenor of the regulation of change, they are collected under appropriate section captions.' But the large number of cases in which the courts either have not specifically relied on an ordinance, or, relying on one, have not indicated its specific nature, are considered together under more general captions' In these sections, a flat prohibition of change of use is assumed, and the discussion is focused upon the criteria employed to deter- mine whether a change of use is sufficient to be regarded as such within the meaning of the prohibition. § 6.37. Change in the kind or quality of use. Under a zoning ordinance which proscribes change of use, one nonconforming use may not be substituted for another. The application of this rule is not difficult where the new use is totally unlike the old one. Where, for example, a' doctor's office was changed to a funeral home, the court found an unlawful change of use.' The same result was reached where a dance hall was converted to a restaurant,' a post office was changed to a cleaning establishment,' a restaurant was changed to an adult bookstore,' a theatre was substituted for a restaurant., a restau- rant was changed to a tavern," a rehabilitation center was converted to a convent,9 and a riding academy became a manu- 1. See, for example, § 6.44, infra. 2. See, for example, § 6.38. infra. 3. Kensington Realty Holding Corp. v Jersey City, 118 NJL 114, 191 A 787 (1937), affd 119 NJL 338, 196 A 691. 4. Lynn v Deam, 324 Mass 607, 87 NE2d 849 (1949). 5. Simone v Peters. 135 NJL 495, 53 A2d 315 (1947). 6. Altpa, Inc. v North Huntingdon Township Zoning Hearing Bd.. 67 Pa Cmwith 60, 445 A2d 1358 (1982). 7. Thomas v Zoning Bd. of Appeals, 72 111 App 3d 934. 29 I11 Dec 277, 391 NE2d 540 (1979, 3d Dist). S. A change of a nonconforming restaurant to a tavern which serves liquor as well as food is a change which is prohibited by a provision which proscribes any change except to a conforming use. Phillips v Oriskany. 57 App Div 2d 110, 394 NYS2d 941 (1977, 4th Dept). 9. Nonconforming use of a propertv as a rehabilitation center was a ciii%r- ent nonconforming use from that of convent though structure continued as housing for approximately 30 unre- lated individuals and therefore re- quired a variance. Dearden v Detroit. 70 Mich App 163, 2.15 tiW2d 700 1976), revd 403 Mich 257, 269 NW2d 139. 561 ually well- defined le dissent in the is generically the souse may not be conforming, full -ser- was changed to an ?r with bars, a disco, ment room, the new ,nt in kind and not right of nonconform- esort Hotels, Inc. v ing Bd -, "385 Mass 13 (1982), later app 6 NE2d 1070. naking nonconform. operty to store and .on equipment may se as a nonconform- :n without obtaining 3,gni Constr. Co. v eals, 56 App Div 2d i (1977. 2d Dept). stored in a garage lore technologically not substantial evi- iow that a personal not remained con - scontinued noncon- ing Bd. of Adjust- ?a Cmwith 485, 482 v in a residential , onforming newspa- ce, and incidental ses in such service, a right to maintain pair shop. The lat- ndy different from v Zoning Hearing 187 (1981), affd 72 A2d 784. ilvey, 206 Cal App ptr 200 (1962, 1st to manufacture of Comr. v Star Mar- 75. 84 NE2d 529 M to processing ler, 206 Minn 345. ( macaroni plant to t NONCONFORMING USES § 6.37 changed to a nonconforming fuel oil business, although both are commercial in character. 13 A change from athletic exhibitions to furniture exhibitions is prohibited;"' substitution of a paint - spraying shop for a tinsmith and woodworking shop is pro- scribed.15 Changes from one nonconforming use to another, even very similar in character, have usually been disapproved. For exam - ple, substitution of an automobile body shop for a garage was held to be unlawful,1" as was a grocery store with gasoline pumps to a gasoline station. 17 A change from stable to riding academy was disapproved,ie and a change from use of a dwelling for sleeping rooms to use for combination units with cooking facilities was found unlawful,19 as was a change from a hotel to a home for retired persons.° bag -cleaning industry); Berdan v Pa- property owner, whether on or off the terson, 1 NJ '199, 62 A2d 680 (1948) premises, constituted an illegal expan- (textile plant to machine shop); Ossin- sion of his legally nonconforming use ing v Meredith, 275 App Div 850, 88 of on- premises manufacture of con - NYS2d 775 (1949) (storage of immo- crete bricks and blocks and sale of bile equipment to storage of trailers); building materials. Vermont Brick & Margo, Operating Corp. v Great Neck, Block. Inc. v Essex Junction, 135 Vt 129 NYS2d 436 (1954, Sup) (nursery 481, 380 A2d 67 (1977). school to day camp); Application of 13. Everpure Ice Mfg. Co. v Board Braunsdorf, 202 Misc -471, 111 NYS2d of Appeals, 324 Mass 433, 86 NE2d 507 (1952) (manufacturing pianos to 906 (1949). making syrup); Bowen v Hider, 37 NYS2d 76 (1942, Sup) (stall- parking 14. Auditorium, Inca v Board of Ad- garage to open parking); Grushkin v justment. 47 Del 373, 91 A2d 528 ' Zonin Bd. of' Appeals. 26 Conn Su PP ( 1952, Sup). ). 457 227 A2d 98 1967 (business ( ) ( ess use 15. Wechter v Board of Appeals. 3 to sale of liquor). Ill 2d 13, 119 NE2d 747 (1954). Owner was properly enjoined from 16. Rupprecht v Draney, 137 NJL using a lot zoned residential as park- 564, 61 A2d 220(1948), affd 1 NJ 407, ing lot for customers of bar and 64 A2d 66. lounge located on adjacent property. No continuation of nonconforming use 17. Santoro v Zoning Bd. of Review, status where defendant's use of lot 93 RI 68,171 A2d 75 (1961). was of different quality and character - 18. Berry v <Recorder's Court of istic than prior nonconforming use. Nest Orange, 124 NJL 385, 11 A2d New use was a lower classification 743 (1940), affd 125 NJL 273, 15 A2d under ordinance, and was more objec- 758. tionable than prior use as a parking lot for vehicles in connection with 19. Keene v Blood. 101 NH 466, 146 construction business and auto repair A2d 262 (1958). shop. Lake Charles v Frank, 350 So2d 20. State ex rel. Edmond Meany 233 (1977, La App 3d Cir). Hotel. Inc. v Seattle. 66 Wash 2d 329, The manufacture of concrete by the 402 P2d 486 (1965). 563 § 6.37 AML�tICAN LAW OF ZONING facturing and packaging plant.'° The list of equally well- defined changes can be extended without any notable dissent in the decisions.,, Change is proscribed although the new use is generically the same as the old. 12 Thus, a nonconforming icehouse may not be 10. Universal Holding Co. v North Where a nonconforming, full -ser- Bergen, 55 NJ Super 103, 150 A2d 44 vice resort hotel was changed to an (1959). amusement center with bars, a disco, and an entertainment room, the new 11. Kallay's Inc. v Katona, 152 uses were different in kind and not Conn 546, 209 A2d 185 (1965) (restau- protected by the right of nonconform- rant serving liquor to a package ing , use. Cape Resort Hotels, Inc. v store); Lathrop v Norwich, 111 Conn Alcoholic Licensing Bd., 385 Mass 616, 151 A 183 (1930) (auto repair 205, 431 NE2d 213 (1982), later app shop to gasoline station); Bowling 388 Mass 1013, 446 NE2d 1070. Green v Miller, 335 SW2d 893, 87 A landowner making nonconform - ALR2d 1 (1960, Ky) (storage room to ing use of his property to store and sheet metal business); Adamsky v service construction equipment may Mendes, 326 Mass 603, 96 NE2d 236 not remodel for use as a nonconform - (1950) (garage to storage of machinery ing gasoline station without obtaining and equipment); Morris v Haledon, 24 a variance. Calcagni Constr. Co. v NJ Super 171, 93 A2d 781 (1952) Zoning Bd. of Appeals, 56 App Div 2d (trade school to woodworking firm); 845 „392 "NYS2d 86(1977, 2d Dept). Susman v Cleveland, 111 Ohio App Although items stored in a garage 18, 13 Ohio Ops 2d. 378, 83 Ohio L Abs 161, 162 NE2d 225 (1959, Cuya- are newer and more technologically hoga Co), app dismd for want of debat advanced, this is not substantial evi- q 171 Ohio St 164, 12 Ohio Ops 2d dence enough to show that a personal 203, 167 �tE2d 927 (sale of second storage use has not remained con- g hand building materials to automobile stant but is a discontinued noncon- forming use. Zoning Bd. of Adjust salvage); Re appeal of Lance, 399 Pa ment v Libros, 85 Pa Cmwlth 485, 482 311, 159 A2d 715 (1960) (grocery store A2d 1181 (1984). to store selling beer); Denver v Board of Adjustment, 31 Colo App 324, 505 Use of property in a residential P2d 44 (1972) (greenhouse to apart- district for a nonconforming newspa- ment); Powers v Building Inspector of Per delivery service, and incidental Barnstable. 363 Mass 648. 296 NE2d repair of vehicles uses in such service, 491 (1973) (living quarters to offices); does not establish a right to maintain Jasper v Michael A. Dolan. Inc., 355 a motor vehicle repair shop. The lat- \Sass 17, 242' NE2d 540 (1968) ( food ter use is significantly different from store selling beer and ovine to same the former. Wyrock v Zoning Hearing selling iiquor): Gilmore v Bever. 46 Bd., 24 Pa D & C3d 187 (1981), affd 72 App Div 2d 208. 361 NYS2d 739 Pa Cmwlth 30, 455 A2d 784. (1974, 3d Dept) (milk hauling to gen- 12. Los Altos v Silvey, 206 Cal App eral trucking). 2d 606, 24 Cal Rptr 200 (1962, 1st Under an ordinance prohibiting en- Dist) (wine bottling to manufacture of largement or alteration of existing boats): Public Bldg. Comr. v Star Mar - walls, buildings, or structures, one ket Co., 324 Mass 75, 84 NE2d 529 cannot convert a blacksmith shop into (1949) (dairy farm to processing a gasoline station. Earle v Shackle- plant); State v Miller, 206 Minn 345, ford, 177 Ark 291, 6 SW2d 294 (1928) 288 NW 713 (1939) (macaroni plant to 562 changed to commercial furniture t spraying si scribed,;' Changes similar in c pie, substit-, held to be pumps' to E academy wf for sleeping facilities wa home for re- bag-cleaning i terson, 1 NJ (textile plant t ing v Mereditt NYS2d 775 (1 bile equipment Margo Operati 129 NYS2d 43 school to day Braunsdorf, 20: 507 (1952) (mv making syrup) NYS2d 76 (19� garage to ;open Zoning Bd.,',of t 457, 227 A2d E to sale of liquor Owner was F using a lot: zont ing lot for ct lounge. located No continuatiorr, status where c was of different istic than 1 -prior New use was under ordinancx tionable than p lot for vehicleF construction'', buF shop. Lake Char 233 (1977, La Al The manufact- V zo vI/v(3 Mt s _ C us E A IVO LA ON NO PArRicK � by Q°on on ROH AvyhOr p d profes AN' 8.A. �We sot COppergt;�e �/ °n Reo/ p °f ' jj•8., �r M ' '%S nt leosingeao Fst°gt� �na'c�9> o�p�n /ni �c �o /Of lok, chn�q�es Re a Owner qs pramee °i Fstm`e TaXSq lotto /s & Contri(6�t °pe Pro 0114-16 Br °t's Tech Ube Pr (Jn; M, woke fessor �L°rs;� s " Orner fi °rest %l p05 E o/ o", law Univetgtyy -sch o0o o/ law E� fors Me'ryber o Gin Gr 'Ne / M'sS�ari 1n ember a f bR. f thPhFoi a SchOUb texas Bars the New�4sd N YOVng�lGeo'g�a Fars eW YOr Ouse 99 k and pennsY /vgn�a Fors 46, .thew 8'ender § 41.03[2] ZONING AND LAND USE CONTROLS 41 -60 abandonment or discontinuance! [2]--.Change of Use [a]-- General Rule Against Unauthorized Change; Exceptions. As a general rule, a nonconforming use that exists at the time a_ zoning ordinance is enacted cannot be changed into a significantly different kind of nonconforming use.' Thus, unless the ordinance provides otherwise, a nonconforming use cannot be changed if it is 7 See § 41.03[6] infra. a See, e.g., Gilmore v. Beyer, 46 AD2d 208, 361 NYS2d 739 (3d Dep't 1974)(an increase in the volume of use alone is not an improper extension; when, however, it is coupled with a qualitative change from a milk hauling business to a general trucking business, it is impermissible and may be enjoined.); Town of Aurora v. Kranz, 103 AD2d 1022, 478 NYS2d 218 (4th Dep't 1984), affd 63 NY2d 996, 483 NYS2d 1012, 473 NE2d 262 (1984)(plaintiff was entitled to enjoin defendants from conducting mud races for a fee,, or any other commercial operations on its land that were deemed an improper extension of the prior nonconforming uses of horse shows and rodeos). See also: Connecticut. Hyatt v. Zoning Bd. of Appeals of Town of Norwalk, 163 Conn 379, 311 A2d 77 (1972)(character of business changed). Kentucky: Feldman v. Hesch, 254 SW2d 914 (Ky 1953)(change of truck storage business to repair and reconditioning of vehicles not allowed in residential zone). Louisiana. Redfearn v. Creppel, 455 So2d 1356 (1984). Maryiand: County Council of Prince George's County v. E.L. Gardner, 293 Md 259,443 A2d 114 (1982)(county council had no authority to issue a special excep- tion to an applicant to operate a sand and gravel wet - processing facility at a loca tion in which the applicant was operating a nonconforming surface mining sand and gravel facility, since the proposed wet - processing facility constituted a change in the nonconforming use, violative of the statutory scheme that prohibited such change). Massachusetts. Chiison v. Zoning Bd. of Appeal of Attleboro, 344 Mass 406, 182 NE2d 535 (1962). .Yew York: Phillips v. Vill. Oriskany, _57 AD2d 110, 394 NYS2d 941 (4th Dep't 1977)(a change of property from a restaurant and soda fountain business to a tay. ern dispensing liquor constituted a change of use within meaning of zoning ordi. nance provision that nonconforming use of land could not be changed to another nonconforming use; such section, which was basis for zoning board's denial of variance to plaintiff, was held to be valid). IRe1.18- 10/86: Nb.8451 41 -61 NONCONFORMING USU § 41.03[2] substantially" or entirely different10 from the original use. 9 See, e.g., Dearden v. City of Detroit, 70 Mich App 163, 245 NW2d'700, 703 (1976)(the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance). See also: Massachusetts Dobbs v. Bd. of Appeals of Northhampton, 339 Mass 684, 162 NE2d 32 (1959)(beauty shop and grocery store were substantially different). New Hampshire: Town of Hampton v. Brust, 446 ;A2d 458 (1982)(trial court could reasonably have concluded that a penny arcade portion of a building could not be expanded; into a section of the building that had been used as a gift shop, a use different from a penny arcade). New Jersey: Arkam Machine & Tool Co. v. Twp. of Lyndhurst, 73 NJ Super 528, 180 A2d 348, 350 (1962)(a nonconforming use is not restricted to the identi- cal particular use in existence at time of enactment of zoning ordinance, but em- braces the same or substantially similar uses within the zoning classification). 10 See, e.g., Susman v. Cleveland, 111 Ohio App 18, 162 NE2d 225 (1959)(diw mantling and wrecking automobiles and the sale of second -hand parts and scrap metal was a completely different use from that of storing and selling second -hand building materials; accordingly, the use of the premises for the latter purposes prior to enactment of the zoning ordinance conferred no right to use the property for the former purposes in violation of the ordinance). See also: Massachusetts: Everpure Ice Manufacturing Co. v. Bd. of Appeals of Lawrence, 324 Mass 433, 86 NE2d 906 (1949). The court stated the general rule to be as fol- lows: "A lawful nonconforming use of land existing at the time of the adoption of a zoning ordinance which may be continued is substantially the same use to which the land was devoted when the ordinance became effective and not some other substantially different use unless the ordinance otherwise provides." 86 NE2d at 909. Missouri: Brown v. Gambrel, 358 Mo 192. 213 SW2d 931 (1948)(owners of building constructed for use as public stable or riding academy spent $35,000 to alter and improve property without a permit and subsequently applied it to a non- conforming use as a public dance hall; court held that the change of use and a lat- eration of the building were unlawful). New Hampshire: Stevens v. Town of Rye, 448 A2d 426 (1982)(a change in a nonconforming use from an automobile garage into a "bath shop" and plumbing supplies showroom was an impermissible expansion, since it was an alteration of a building for a purpose or in a manner substantially different from the prior use). In Lynch v. Borough of Hillsdale, 136 NJL 129, 54 A2d 723(1947), the New Jersey Supreme Court refused to allow a nonconforming use merely because it might be less obnoxious than the old use (54 A2d at 725 -726): The court stated: "A preexisting non - conforming use may not be enlarged or radically modified (Rd.18 -10186 Pub:845) PAGE 41 -61 ZONING & LAND USE CONTROLS 36 PAGE 41 -61: NA In Rendir v. Zoning Hearing Bd., 488 A.2d 391 (Pa.. Commw. Ct. 1.985), the court upheld the denial of a landowner's request for a variance to permit additional nonconforming uses of his property based upon his own prior nonconforming use of the property as a medical office. The owner's residence contained accessory professional offices for his medical practice that had legal nonconforming use status. He sought approval of the use of the office space for his son's securities business and his son -in -law's law practice. The court held that such use of the offices was not a lawful nonconforming use because it was clearly different from the owner's nonconforming use. Therefore, the use of the space for the son's and son -in -law's businesses was not protected as a valid continuation of the prior nonconforming use. Expansioa of penny arcade prohibited: See Town of Hampton v. Brust, 446 A.2d 458, 462 (N.H. 1982), holding that a trial court could reasonably have concluded that a penny arcade portion of a building could not be expanded into a section of the building that had been a gift shop because it was "a use different from a penny arcade." PAGE 41 -66: N-22 In Sherrill House, Inc. v. Board of Appeals of Boston, 19 Mass. App. 274,473 N.E.2d 716 (1985), the city zoning board of appeal granted a property owner in a residential district permission to change his nonconforming use from 'a hospital to a correctional facility. In Town of E. Lyme v. Waddington, 493 A.2d 903 (Conn. App. Ct. 1985), the court held that the amended zoning regulations barred the owners of a restaurant from selling liquor in their establishment, where there was another building in which alcoholic beverages were sold within 1,500 feet from that restaurant. The court further held that the applicable zoning regulation was the amended one and not the earlier regulation which was effective at the time of the previous administrative proceedings. The court noted that "(tlhe zoning law or regulation in effect at the time of the decision of a court is controlling as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application." Since there was no ambiguity in the applicable regulation, the court found that the restaurant owners were clearly in violation of the zoning ordinance. [b]—Authorized Change of Use PAGE 41 -68: ".26 But see Jewell Junction v. Cunningham, 439 N.W.2d 183 (Iowa 1989), in which the city challenged a care facility that changed its operations from care of elderly mental patients to care of young mental patients. The facility operated under "grandfather" nonconforming use status. The Iowa Supreme Court held that the burden was on the city to prove that there was a violation of the ordinance by showing that the facility exceeded its nonconforming iRe).30 —V.6 Pub.845) i `r I- f t ORDINANCE NO. 10 -90 -1450 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING SUBSECTION (15) "SATELLITE ANTENNAE" BY ADDING MICROWAVE ANTENNAS AND AMENDING SUBSECTIONS (a) (b) THEREUNDER AND DELETING SUBSECTION (15) (c) OF SECTION 20-3.4, SPECIAL USE CONDITIONS OF CHAPTER 20, LAND DEVELOPMENT CODE OF THE CITY OF SOUTH MIAMI CODE`- OF ORDINANCES BY SPECIFYING NEW TERMS AND - CONDITIONS FOR LOCATION, LANDSCAPING, DIAMETER HEIGHT, SETBACKS, GROUND COVERAGE, COLOR, NUMBER PERMITTED, INSTALLATION, MAINTENANCE AND PERMIT REQUIREMENTS; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH, PROVIDING FOR SEVERABILITY AND PROVIDING AN EFFECTIVE BATE: WHEREAS, The City of South Miami,- through Review and Preservation Board, encourages excell of architectural and environmental design and orderly, harmonious and attractive development of the community in keeping. with the goals of Plan; and its Environmental ance in the quality by promoting the and redevelopment the Comprehensive WHEREAS, satellite earth stations and microwave antennas have grown in usage, particularly in the City of South Miami, NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: SECTION 1. That subsection (15) "SATELLITE ANTENNAE" (a) (b) of Section 20 -3.4, Special Use Conditions of Chapter 20 Land Development Code of the City of South Miami Code of Ordinances be amended as follows: (15) SATELLITE ANTENNAS: Satellite earth stations, restrictive to the sole purpose of receiving and amplifying microwave signals for television reception shall be permitted as a Special Use in residential and commercial zoning districts, and microwave antennas, restricted to the sole purpose of receiving and /or transmitting and amplifying microwave signals, shall be permitted as a Special Use in commercial districts, subject to the following conditions and restrictions: a) Satellite Earth Stations: That plans of satellite earth stations shall be submitted with each application for a building permit, which shall include a site plan indicating the height, diameter, color, location, setbacks, foundation details, landscaping and screening, and that such plans shall be subject to approval by the E.R.P.B. and that such satellite antennas shall be subject to the following standards: i. Location (a a) In RS, RT -5 and RT -Q Districts only around - mounted antennas shall he permitted and such antennas shall he located in the rear of that prcDerty or _n the interior side yard and not visable from the street. bb) lz ail other districts, roof- mounted antennas shall be permitted, provided, ,iowever, that such antennas snail be : screened from ground view by a parapet or some other type masonry wail or screening. The minimum height and design of such parapet, email or screening shall be subject to approval by the E.R.P.B. scussioN iiZ cc) Ground- mounted antennas shall also be permitted In RM- 18, RM -24 and commercial districts subject to the applicable provisions of this section. �_. _ andscaping aa) Ground mounted antennas shall be screened by landscaping from view from the street and adjacent property owners so that such antennas are not "visible between ground level and eleven (11) feet above ground level as shall be approved by the E.R.P.B. (bb) In order to reduce the height of the required plant material, berms may be employed in conjunction with the landscaping plan. All plant material, size (at installation), quantity and spacing shall be specified on the landscaping plan or site plan. iii. Diameter (aa) The diameter of such antennas shall not exceed ten (10.) feet in all RS, RT -6 and RT -9 Districts. (bb) The diameter of such antennas shall not exceed fifteen (15) feet in all other districts. iv. Height (aa) Ground- mounted antennas shall be limited to a maximum height of eleven (11) feet above grade in all RS, RT -b and RT -9 Districts and a maximum of fifteen (15) above grade in all other districts. (bb) Roof- mounted antennas shall be limited to a maximum height of fifteen (15) feet above the roof. V. Setbacks Ground- mounted satellite antennas in the most extended position shall conform to the following minimum setbacks: (aa) (1) Rear and Side In all RS, RT -6 and RT -9 Districts fifteen (15) feet and in all other districts, rear and side setbacks shall be provided as are required for the principal building on the building site. i2) Setbacks from Power Lines Satellite antennas or any appurtenances thereto, shall be located not less than eight (8) feet from any powerline over two - hundred fifty (250) volts. bb) In no case shall such satellite antennas be located closer to the front or side street of a lot or building site than the main or principal building. ;cc; Where such a satellite antenna is located on a building site whichs fronting upon two or more streets, she antenna snail maintain the same setback as required for the principal building along each such street. IS CWU S45 10 N � 2 'i. - muervicus Coverage -he impervious coverage cf such antennas shail oe counted in computing the impervious coverage for auxiliary anti accessory use structures located upon the cuildina site. ii. 'clor Such satellite antennas and their appurtenances snail be non - reflective black, green or the same color as the wail to which it is attached (if not freestanding) and, to the extent possible, shall be compatible with the appearance and character of the neighborhood Viii. Number Permitted Only one (1) satellite antenna shall be permitted for each principal building. ix. Installation (aa) The installation or modification of all satellite antennas shall be in accordance with all applicable construction and safety codes and procedures and shall meet the requirements of the South Florida Building Code. (bb) Roof- mounted antennas shall be anchored to the roof in conformance with the requirements of the South Florida Building Code. (cc) All antennas and appurtenances shall be so constructed and installed so as to withstand the forces due to wind pressure as provided for under the South Florida Building Code, and all applications shall include signed and sealed drawings by a professional engineer. X. Maintenance Such satellite antennas, appurtenances, landscaping and screening shall be kept and maintained in good condition. Xi. Public Hearing aai That an application for installation of such antennas shall be :jade to the Planning Board and the Plannina Board snail hold a public hearing at which all interested persons shall be afforded an opportunity to be heard. bbl That the recommendations of the Plannina Board, on each application considered, shall be submitted to and acted upon by the City Commission. cc; That in approving the application for the _nstailation of the satellite antenna, the Plannina Board 3av recommend and the City Commission zay prescribe appropriate conditions and safeguards in ccn crmit-" with the provisions of the band Development Code. :_nnuai =-view as ; review nd approval ' �y -ne or _. Q� ` Knee - na i ' e reauirea on an- annuai cenewai tasis ana at QucnV -i,e an appiicant nail_ - reauired -;-o ubmit notos cr" t ne anienna -----Ken r ^m -ne - -reor Ina a_cacent i,,rooer''es s s u r e _-omol "ante. D�SCuss�oN�� Roof- mounted antennas Shai1 --e imited to a maximum 7eicfht of ten ( 10 ) `eet above the roof '_n heir most extended position. _v. Setbacks aai Roof- mounted microwave antennas, in their most extended position, shall conform to the setback requirements nor the principal building on the building site. " (bb) Microwave antennas or any appurtenances thereto, shall be located not less than eight (8) feet from any power line over two hundred fifty (250) volts. V. Color Microwave antennas and any appurtenances shall be white or shall be the same color as the surface to which they are attached vi. Number Permitted Only one (1) microwave each principal building. vii. Installation antenna shall be permitted for (aa) The installation or modification of microwave antennas shall be in accordance with all applicable construction, safety codes and anchoring procedures and shall meet the requirements of the South Florida Building Code. (bb) The microwave antenna and appurtenances shall be constructed and installed so as to withstand the forces due to wind pressure as provided in the South Florida Building Code, and all applications shall include signed and sealed drawings by a professional engineer. =X. Maintenance Such microwave antennas, appurtenances and screening shall be kept and maintained in good condition. Public Hearing as ) What an an_ plication for the installation of such antennas shall be made to the Planning Board and the Planning 3oard shall hold a public hearing at which all interested persons shall be afforded an opportunity to be heard. bb) ghat the recommendations of the Planning Board, on each application considered, shall be submitted to and be acted upon by the City Commission. cc; That in approving the application for the installation of the microwave antenna, the Planning Board may recommend and the --ity Commission may brescr be appropriate conditions and safeguards in conformity with =he provisions of the Land Development Code. id',, ciations of specified conditions and safeguards, when -jade -art of the terms under which =he antenna _s b1sc,"C'Siot*4 2, approved or the various provisions of this section shall be deemed grounds for revocation of the auxiliary use and punishable as a violation of the Land Development Code. ;ee) All antennas installed prior to the adoption of this ordinance must be brought into compliance within 180 days. X. Permit Recuired All microwave antennas located in the City of South Miami, Florida,- must have a permit Section 2. That subsection (15)(c) of Section 20 -3.4, Special Use Conditions of Chapter 20, Land Development Code of the City of South Miami, Florida, be and the same is hereby deleted. Section '3. All Ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 4. If any sentence, section, clause or phrase is held to be invalid or unconstitutional by any court of competent jurisdiction, it shall have no effect on the validity of the remaining portions of the ordinance. Section 5. This ordinance shall take effect immediately at the time of its passage. PASSED AND ADOPTED this ATTEST: 4"r, , iRK READ AND APPROVED AS TO FORM: i QTY ATTORNEY 6 21st day of August APPROVED: 1990. % �C� "I-, OR`