11-20-904
OFFICIAL AGENDA
CiTY OF SOUTH MIAMI
6130 Sunset Drive
Regular City Commission Meeting
November 20, 1990
7:30 PM
A. Invocation
Next Resolution: 134 -90 -9060
Next Ordinance: 24 -90 -1464
Next Commission Meeting: 12/04/90
B. Pledge of Allegiance to the Flag of the United States of America
C. Presentations
D. Items for Commission Consideration:
1. Approval of Minutes: November 13, 1990, Special Commission meeting
2. City Manager's Report
3. City Attorney's Report �\
ORDINANCES SECOND READING AND PUBLIC HEARING:
4. An Ordinance, p.roviding for a franchise and granting permission
and authorizing Southern Bell, Telephone and Telegraph Company to
use the public streets of the City of South Miami, Florida, for the
purpose of erecting, constructing, maintaining and operating
lines oft telephone and telegraph equipment thereon and thereunder;
providing for a term of fifteen, (15) years; providing for a fee;
providing for severability; providing for ordinances in conflict;
an providing an effective date. ('Administration) 4/5
5. An Ordinance amending the 1990 -91 pay plan by increasing police
officer and police sergeant pay ranges two steps and by establish -
ing a police trainee step providing for severability; providing
for ordinances in conflict; and providin an effective date.
?Administration) 4/5
RESOLUTIONS
6. A Resolution declaring the City Hall of the City of South Miami
a "smoke- free zone ". (Vice -Mayor Carver) 3/5
7. A Resolution 'authorizing the City Manager to execute a collective
bara'ining agreement with the Police Benevolent Association providing
for a new wage scale as set forth hereinbelow and providing for
disbursements from Account 1910 -1210, "Salaries -Wages Regular`
and Account 1910 -2100 "FICA "; further authorizing the City Manager
to alternatively provide for disbursement from Account No. 2100 -5510
"General Contingency Fund" upon the Manager's determination that no
further economies could be effected from other operating accounts
of the Police Department. (Administration) 4/5
8. A Resolution authorizing the transfer of a maximum of $82,500
from Account No. 2100 -5510 "General Contingency fund into
Account Numbers 1910.1210 "Salaries /Wages Police Department" and
1910 -2110 "FICA - Police Department" upon the discretion of the City
Manager and provided reports be given in advance to the City
Commission. (Administ'ration) 4/5
9. A Resolution authorizing the City Administration to enter a
contract with Stroyne Brothers South, Inc., for the
administration, collection, and maintenance of the City's parking
meters and decal parking areas. (Administration) 3/5
10. A Resolution authorizing the City Administration to enter a
contract with Dean Dellis and Mary Dellis, his wife, providing
for City construction of drainage improvements on the public
right -of -way fronting the property commonly known as 5865 Twin
Lakes Drive, South Miami, Florida, and legally described herein
below. (Administration) 3/5
REGULAR CITY COMMISSION MEETING'
NOVEMBER 20, 1990
PAGE 2
11. A Resolution authorizing the provision of engineering or drainage
construction for the Public Works Department for a total price not
to exceed $4,013 and providing for disbursement from Account
No. 1730 -4640. (Administration) 3/5
12. A Resolution authorizing the Finance Department of the City to
contract the purchase for the maintenance of the Unisys Computer
System for a total price not to exceed $4,570.00 and providing
for disbursement from Account 1410 -4620, "Maintenance - Operating
Equipment." (Administration) 3/5
13. A Resolution urging Congress and the President to enact
Legislation mandating a statistical correction of the 1990 Census
and urging ,legislatively correcting the 1990 Census.
(Mayor. McCann) 3/5
ORDINANCES - FIRST READING:
14. An Ordinance determining that the South Miami Distri t Chamber of
Commerce has violated the deed restrictions fora po ti on of the
land commonly known as FUCHS PARK and legally descri ed herein-
below; authorizing the City Attorney to take such le al .steps
as are necessary to accomplish a re- vesting of the 1 nd in the City
of South Miami; providing for a fee; providing for severability;
providing for ordinances in conflict; and providing a effective
date. (Mayor McCan 3/5
15. An Ordinance amending Section 20 -2.3 of the Land Development Code
of the City of South Miami 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 odinances in conflict and /
providing for an effective date. (Mayor McCann) i� 3/5
16. An Ordinance amending Section 20 -2.3 of the Land Development
Code of the City of South Miami to provide a specific definition 17
for accessory medical services category as a special use in
Section 20- 3.3(E); providing special use conditions for accessory
medical services by creating Section 20- 3.4(6)(18); providing��
for severability; providing for ordinances in conflict; and
providing an effective date. (Mayor McCann) 3/5
17. An Ordinance amending Section 15 -63 of the Code of Ordinances r
to permit mobile food vendors in LO', MO and I zoning districts
providing for terms and conditions; providing for severability
and an effective date. (Commissioner Launcelott) 4/5
18. An Ordinance amending Section 15 -63, Miscellane us Provisions, j
of the Code of Ordinances by permitting open lot` ristm tree l:
sales as a sepcial use in specific zoning districts, r viding
for terms and conditions of the special use; providi for
severability; providing for ordinances in conflict p oviding
an effective date. (Commissioner Launcelott) 4/5
19. An Ordinance restricting solicitation of rides, chariti e
contributions, and /or employment, including the watchi g or
guarding of vehicles in and adjacent to streets and adways, 41
providing for severability; providing for ordinanc in conflict
and providing an effective date. (Vice -May r Carver) 3/5
t-
REGULAR CITY COMMISSION MEETING'
NOVEMBER 20, 1990
PAGE 2
11. A Resolution authorizing the provision of engineering or drainage
construction for the Public Works Department for a total price not
to exceed $4,013 and providing for disbursement from Account
No. 1730 -4640. (Administration) 3/5
12. A Resolution authorizing the Finance Department of the City to
contract the purchase for the maintenance of the Unisys Computer
System for a total price not to exceed $4,570.00 and providing
for disbursement from Account 1410 -4620, "Maintenance - Operating
Equipment." (Administration) 3/5
13. A Resolution urging Congress and the President to enact
Legislation mandating a statistical correction of the 1990 Census
and urging ,legislatively correcting the 1990 Census.
(Mayor. McCann) 3/5
ORDINANCES - FIRST READING:
14. An Ordinance determining that the South Miami Distri t Chamber of
Commerce has violated the deed restrictions fora po ti on of the
land commonly known as FUCHS PARK and legally descri ed herein-
below; authorizing the City Attorney to take such le al .steps
as are necessary to accomplish a re- vesting of the 1 nd in the City
of South Miami; providing for a fee; providing for severability;
providing for ordinances in conflict; and providing a effective
date. (Mayor McCan 3/5
15. An Ordinance amending Section 20 -2.3 of the Land Development Code
of the City of South Miami 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 odinances in conflict and /
providing for an effective date. (Mayor McCann) i� 3/5
16. An Ordinance amending Section 20 -2.3 of the Land Development
Code of the City of South Miami to provide a specific definition 17
for accessory medical services category as a special use in
Section 20- 3.3(E); providing special use conditions for accessory
medical services by creating Section 20- 3.4(6)(18); providing��
for severability; providing for ordinances in conflict; and
providing an effective date. (Mayor McCann) 3/5
17. An Ordinance amending Section 15 -63 of the Code of Ordinances r
to permit mobile food vendors in LO', MO and I zoning districts
providing for terms and conditions; providing for severability
and an effective date. (Commissioner Launcelott) 4/5
18. An Ordinance amending Section 15 -63, Miscellane us Provisions, j
of the Code of Ordinances by permitting open lot` ristm tree l:
sales as a sepcial use in specific zoning districts, r viding
for terms and conditions of the special use; providi for
severability; providing for ordinances in conflict p oviding
an effective date. (Commissioner Launcelott) 4/5
19. An Ordinance restricting solicitation of rides, chariti e
contributions, and /or employment, including the watchi g or
guarding of vehicles in and adjacent to streets and adways, 41
providing for severability; providing for ordinanc in conflict
and providing an effective date. (Vice -May r Carver) 3/5
REGULAR CITY COMMISSION MEETING
NOVEMBER 20, 1990
PAGE 3
20. An Ordinance amending Section 20 -2.3 of the Land Development
Code of the City to provide specific definitions for satellite
antennas; deleting "satellite antennaw" from Section 20- 3.3 (E); j
deleting special use conditions for "satellite antennas" in
Section 20- 3.4(6)(15); creating Section 20 -5.23 "satellite
antenna procedures"; providing-for severability; providing for r
ordinances in conflict; and provid'ing'an effective date. S
(Mayor McCann /'Comm. Cooper) _,7
REMARKS
I. AT EASE, 5844 Sunset Drive. Ms. Linda Werner to address the
Commission relative to a charge for false alarms.
II. Mr. Christopher Cooke - Yarborough to address the Commission regarding
planting in right -of-way on S.W. 64th Avenue
You are hereby advised that if any person desires to appeal any decision
with respect to any matter considered at this meeting or hearing, such
person will need to ensure that a verbatim record of the proceedings is
made, which record includes the testimony and evidence upon which the
appeal is to be based.
A
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, AMENDING SECTION 15 -63, MISCELLANEOUS
PRO17ISIONS OF THE CODE OF ORDINANCES OF THE CITY OF SOUTH
MIAMI BY PERMITTING OPEN LOT CHRISTMAS TREE SALES AS A
SPECIAL USE IN SPECIFIC ZONING DISTRICTS;, PROVIDING FOR
TERMS AND CONDITIONS OF THE SPECIAL USE; PROVIDING FOR
SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Code, as presently enacted, does not provide
for open lot Christmas trees sales; and
WHEREAS, the Mayor and City Commission wish to amend the
Code of Ordinances of the City of South Miami to permit open lot
Christmas tree sales upon certain terms and conditions Z44z districts;
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR. ANT? CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. Open lot Christmas tree sales shall be permitted
under certain terms and conditions is specific zoning districts
from the effective date of this Ordinance
Section 2. Section 1.6 -63 of Code of Ordinances of the City
of South Miamj. be and hereby is, amended to permit the sale of
Christmas trees in districts under the following terms and
conditions:
15 -63(a) Open Lot Christmas Tree Sales
Open lot Christmas trees sales located within the
City of South Miami may be authorized, subject to the following
conditions and restrictions:
1. The setting up and dismantling of all equipment,
structures of apparatus shall he accomplished only between the
hours of 7:30 AM to 6:00 PM, Monday through Saturday. None of
this work 'shall be done on any Sunday.
2. The applicant for such Christmas tree sales shall
615.mit a sketched plan to the City Manager of all equipment,
tents, structures, off - street parking and tree storage and /or
displays.
/ 3. All equipment, ten, structures, tree storage
d/or displays shall provide setbacks as required by the City of
South Miami zoning g code and the South Florida Building Code.
Y
4. The operation of such Christmas tree sales shall be
conducted between the hours of 9 :00 AM to 10:00 PM, Monday
through Saturday, and from 11 :00 Aft to 8 :00 PM on Sunday.
5. The use of a LL4 " n, flashing lights or other
similar attention attractors and advertising devices shall be
prohibited.
Off- street parking shall be provided as shall as
required by the City Manager.
7. Adequate sanitary facilities shall be provided upon
t4�?premises of the Christmas tree sales.
8. All tents and equipment and structures shall be
maintained and kept in good order and repair and, upon
inspection, if found to be in disrepair, shall be subject to
removal and /or replacement.
9. - The operation of such Christmas tree sales shall be
in accordance with the fire safety standards as set forth under
the�I^C'l'ii:Tl(1 ; t �n n� [�o r'.,,,., �-., T'= -- - - - - t ell
ZC �L�VC
aad they "South Florida Building Code ".r, /d
10. Individuals conducting such Christmas tree sales
shall be subiect to maintain the premises in a clean and sanitary
- condit-..on during the sale period.
11. All trash, debris, and unsold Christmas trees must be
removed from the premises within a period of seventy -two (72)
hours from the last day of sale and the premises shall be
restored to its original condition on or before December 31 the
year of the sale.
Section 2. 'If any sentence, section, clause or phrase of
this ordinance is held to be invalid by any court of competent
jurisdiction, then said holding shall in no way affect the
validity of the remaining portions of the ordinance.
Section 3. All ordinances or parts of ordinances in
conflict erewlth be and the same are hereby repealed.
Section 4. This ordinance shall take effect immediately at
the time of its passage.
PASSED AND ADOPTED this day of 1000.
APPROVED:
ATTEST
MAYOR
CITY CLERK.
READ AND APPROVED AS TO FORM:
RESOLi1TTOrl NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF SOUTH MIAMI, FLORIDA, AUTHORIZING GREGORY P.
BORGOGNONI, ESOUIRF, AS SPECIAL COUNSEL FOR THE CITY OF
SOUTH MIAMI TO FILE AND P[JRSUF AN APPEAL OF THE FINAL
ORDER ENTERED AGAINST THE CITY OF SOUTY, MIAMI IN DADE
COUNTY CIRCUIT COURT CASE R`9- 543R6CA14 "PAFENAN V. CITY OF
SOUTH MIAMI ". _
WHEREAS, by Resolution dated May 15, 1000, 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 "',leenan
v. City of South, Miami "; and
WHEREAS, on Octolier 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.
NOV7 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 t e City of South Miami he, 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 "Meehan v. City of South Miami ".
PASSED AND ADOPTED this day of , 1990.
APPROVED:
ATTEST:
MAYOR
CITY CLERE
READ AND APPROVED AS Tr) FORM:
CITY ATTORNEY
"tity Attorney Berg 5"BJE`T'Case Report
I received a preliminary opinion in the Meenan Case (copy
attached). Judge Feder ruled (on page Z): "An appropriate Order
should be drawn enjoining the City proceeding with the
existing Land Use plan designated for the subject property other
than as Low Pensity Office."
Because this Opinion calls for another ')rder to 'ne drawn,
it is not the final Order in the case. Further, the language in
the quote( 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
I 6th, 144f1,
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
DADE COUNTY FLORIDA.
GENERAL JURISDICTION DIVISION
CASE NO. 89 -84386 CA 14
Jean Rich Meenan and
William Meenan
Plaintiff,
VS.
O R D E R
City of South Miami,
Defendant.
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.
Tho eniaci-4 e%n fhr 4-ho f1nnr+ 4a mho +her +him nvaviNmv% +4 csel .,
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 f ace Manor Lane ( with one exception) and
._ __ __•• __— -- �� �... .. �.���� •r —v •rva.rrr tea♦ MAiV
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 171 ' .4
A --=;H:1 L :�3-1 -=I n NH0r 0 T : 9 T An -L A5 -5 -1 S 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 (1 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. Ei] 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 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.
$urdine's,'Centrus't, Eastern, Trump with Morgan Trust,
Harry Winston, Joe's Stone Crabs'.
JOHN G. FLETCHE$
ATTORNEY AT LAW.
.SUITE 304 .
7600 .RED. ROAD
SOUTH MIAMI, FLORIDA 33143 - 5484
TELEPHONE (3051 665-752t
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 aareement that City Attorney Martin Berg and
T reached in regard to that 'case styled- M'able Mobley v. City
of South Miami, Case No. 90 -32116 (CA 11). I enclose
herewith a copy of the agreed order which is self
exp:Lanatory.
would appreciate your confirmina that this Tatter
aoina to be scheduled for `she November 6, 1990, South Miami
City Commission agenda My :zany thanks =or your asual
cour :esV.
�crdia 1
i
j
i
ohn G. F'letcner
JG7 N111
ar Morn
i
i
i
SS 10 14
avor and Commission
oATE.October 31, 1990
City Attorney SU®JECT: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
MOTION TO DISMISS
The above matter :saving come on to be heard before the
Cour: on October 3, 1990, on the Defendant'o %Iotion to
Dismiss and _he City of South Miami having stated that --he
admini...._...._ ve r emed 7 which is available to the claim__ _s
to a=ear before the South Miami City Commission to seek a
�oiic�, _irecticn _rom the Citv Commission to the _tv,
.Tanager re1.,.t41n to _ssulnQ occ'upatlonal _CenSeS =or
-es _^er 7 �_ass___e as C- and C -3 uses _ e roper=
zuest_on, and the parties .aving acireed that _ne 7,atter
4i =_ Ye set c-efore he South ;Miami amity - ommISSion on _ .s
agenda cff .ovember 5, -990, __ is
ORDERED:
-he above Szvled cause is hereby -ismissed ;ait ::out
1 6S CUSS-1
v
3d
Robert by
Coll
Prof, fL, of l derso
ofl�w svr7 merltusn
se t,
1 ^� 1 01
R
ws�Ora'ppEAA
�P 5a" h a�Osc wMlTNfY6ga rJV E pu8l/ghl�yC
caw"", a pa JOl Co.
Ofi
■■
of
ary
use
ass
fell
ling
:ing
to
lip-
s a
ith-
gni
ais,
86
ac-
to
,,as
ce:
ng
n
.se
.en
77.
o�
mi
i8
re
.o
e
z
n.
G_
:ff
ie
:e
or
in
h
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 .7 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 exampie. § 6.44, infra. S. A change of a nonconforming
restaurant to a tavern wnich serves
2. See, for exampie, § 6.38, infra. iiquor as well as food is a change
3. Kensington Realty Holding Coro. which is prohibited by a provision
v Jersev City, 118 NJL 114, 191 A 787 'which proscribes any change except to
1937), affd 119 NJL 338, 196 A 691. a conforming use. Phillips v Oriskany.
57 App Div 2d 110, 394 NFS2d 941
4. Lvnn v Deam. 324 "lass 607. c7 1977. 11th Dept).
N E2d 849 (1949).
9. Noncontorr_ mu use or a property,
5. Simone v Peters, 135 NJL 4j5, 53 as a renabihtat on center was a differ
_old 315 (1947). ent nonconforming use from that of
convent though structure continuea
6. Altpa. Inc. v North Huntingdon
Townsnip Zoning Hearing Bd., 67 Pa .:s housing tor aporoxtmateiv .30 unre-
Cmwith 60. 445 Ald 1358 11982). fated individuals and zf:erefore re-
quired a variance. Dearaen v Detroit.
7. Thomas v Zoning Bd. of Appeais, '0 Mich App 163. 245 N W2d 7'j0
72 I11 App 3d 934. 29 I11 Dec 2.7. 391 ?976), revd 403 Mich 257, 269 NW2d
NE2d 540 (1979. 3d Dist). 139.
5161
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.'s
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."
A, change from stable to riding
academy was disapproved,t8 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 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. 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 Appeals. 3
to sale of Liquor).
Ill 2d 13, 119 NE2d 747 (1954).
Owner was properiv enjoined from
16. Rupprecnt 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 ouality and character-
18. Berry % Recorder's Court of
istic than prior nonconforming use.
Vest Orange, 124 NJL 385, 11 A2d
New use was a lower classification
743 (1940), arfd 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. Beene v 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).
Hotel. Inc. v tieattie, 66 Wash 2d 329.
The manufacture of concrete by the
402 P2d 486 (1965).
563
§ 6.37 AM,,dCAN 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," 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. Kallav'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 1
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
are newer' and more technologically
Abs 161, 162 NE2d 225 (1959, Cuya-
advanced, this is not substantial evi-
hoga Co), app dismd for want of debat
dence enough to show that a personal
q 171 Ohio St 164, 12 Ohio Ops 2d
storage use has not remained con -
203. 167 NE2d 927 (sale of second
stant but is a discontinued noncon-
hand building materials to automobile
forming use. Zoning Bd. of Adjust-
saivage): Re Appeal of Lance, 399 Pa
ment v Lihros, 85 Pa Cmwlth 485, 482
311, 159 A2d 715 (1960) (grocery store
A2d 1181 (1984).
to store selling been: Denver v Board
of Adjustment, 31 Colo App 324. 505
Use of property in a residential
P2d 44 11972) (greenhouse to apart-
district for a nonconforming newspa-
Powers v Building Inspector of
per
per delivery service, and incidentai
Barnstable. 363 Mass 648. '296 NE2d
repair of vehicles uses in such service,
491 (1973) diving quarters to oiiicesr
does not establish a right to maintain
Jasper v Michael A. Dolan. Inc.. 355
a motor vehicle repair shop. The lat-
`.lass 17. ?42 NE2d 540 11968) (food
ter use is significantly different from
Store seiline beer and wine to same
the former. Wyrock v Zoning Hearing
_e ling liauor): Gilmore v Bever. 46
Bd., 24 Pa D & C3d 187 (1981), atfd 72
.app Div 2d 208. 361 NYS2d 739
Pa Cmwlth 30. 455 A2d 784.
1974. 3d Dent) (milk hauling to gen-
12. Los Altos v Silvey, 206 Cal App
arai trucking).
2d 606. 24 Cal Rptr 200 (1962, lit
Under an ordinance prohibiting en-
Dist) (wine bottling to manufacture of
largement or alteration of existing
boats): Public Bldg. Comr. v Star Mar-
wails. buildings, or structures, one
ket Co., 324 Mass 75, 84 NE2d 529
cannot convert a blacksmith shoo into
41949) 1dairy farm to processing
a gasoline station. Earle v Shackle-
plant): State v Miller. 206 Minn 345.
ord. 177 ark 291, 6 SW2d 294 (1928).
'288 NW 713 (1939) (macaroni plant to
562
changed to
commercial
furniture (
spraying si
scribed -'a
Changes
similar in e
pie, substit;
held to be
pumps to E
academy wf
for sleeping
facilities wa
home for Ire
bag -cleaning i
terson, 1 NJ
(textile plant t
ing v Mereditl
NYS2d 775 (1
bile equipment
Margo Operati
129 NYS2d 43
school to day
Braunsdorf, 20:
507 '(1952) (ME
making syrup)
NYS2d 76 (19�
garage to open
Zoning Bd. of t
457, 227 A2d f
to sale of liquor
Owner was t
using a lot zone
ing lot for ct
lounge located
No continuatior.
status where c
was of different
istic than 'prig
New use was
under ordinancE
tionabie than p
lot for vehiclef
construction bus
shop. Lake Char
233 (1977, La A4
The manufact-
Zp von
VIN 6
UsiG A/VD
CO/v7*& LAIVD
A CJ* PATRICK by
flan ✓. R IYA
of
Curren, a9' Qeo/ Fs�q a ��ey eo s onrMe'-s'6, J S 5ch O.
n9 � °w Door � hncrno. ho c °jniniuni 1Ow °f
nr9ues `Qeo/ �%ivper -4ss � pron'rce.
Prof. Contrrbu csr�e Tax Ap �a s Ce
T x ssor tors
ProfeTech UnS�ce tit
Wade F s"0r nh erysr s � Ro of ow
ry S�hOOi below
Ea,1or
Nen,ber c Gh 9er C.
,4em job e h1 /ssOUr�r /�n
ember °/rh Rich lhe/O.- SChQUtJ Texas liars
e Qr °
N�Ow jersd NeYOUn�l?oeorq" Bors
se
on -
7990 ° PennsVr�On�
o troll
4d
atthew den
der
*,* T
azit" ,fir
§ 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
s 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 My 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).
_tifarviand: 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 eravei facility, since the proposed wet - processing facility constituted a change
in the nonconforming use. vioiative of the statutory scheme that prohibited such
.:hange).
Massachusetts. Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass 406,
182 NE2d 535 (1962).
.Vew York: Phillips v. Vill. Oriskany. 57 AD2d 110, 394 NYS2d 941 (4th Dent
1977)(a change 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 denial of
variance to plaintiff, was held to be vaiid).
rRd.18-109b P;;b 8451
i
41 -61 NONCONFORMING Uses § 41.0321
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).
IVew 'Jersey: Arkam Machine & Tool Co. v. Twp. of Lyndhurst, 73 NI 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, 1 I 1 Ohio App 18, 162 NE2d 225 (1959)(disv
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.
Mfssourc Brown v. Gambrel, 358 Mo 192. 213 SW2d 931 (19481(owners of
building 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 a non-
conforming use as a public dance hall: court held that the change of use and a lat-
eratlon of the building were unlawful).
.Yew Hampshire: Stevens v. Town of Rve, 148 A2d 426 (1982)(a chance 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
I . Rd.18 -10i 86 P.:b 8451
`&
PAGE 41 -61 ZONING LAND USE CONTROLS 36
PAGE 41 -61:
"•* 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:
"-22 In Sherrill House, Inc. v. Board of Appeals of Boston, 19 Mass. App.
274,473 NE.2d 716 (1985), the city zoning board of appeal granted a property
owner in a residential district permission to change his nonconforming use
i
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 m 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 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.
-quo, .,i,
[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
Rei.30 -V b Pub.845)
low kV
fE
i
t
s`
ORDINANCE NO. ' 0 -90 -1450
AN ORDINANCE OF THE MAYOR AND CITY ^_;MISSION OF THE C].TY OF
SOUTH MIAMI,- FLORIDA, AMENDING S'-UBSECTION '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
3EVELOPMENT" CODE OF SHE CITY OF SOUTH MIAMI CODE OF ORDINANCES
BY SPECIFYING NEW TERMS AND CONDITIONS FOR :.00ATION,
L.ANDSCAPING, 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
eview and Preservation Board, encourages excelli
f architectural and environmental design and
rderly, harmonious and attractive development
f the community in keeping with the goals of
lan; and
its Environmental
once in the quality
by promoting the
and redevelopment
the Comprehensive
WHEREAS, satellite earth stations and microwave antennas have
rows in usage, particularly is 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
)evelopment Code of the City of South Miami Code of Ordinances be
emended 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
transmitting and amplifying microwave signals, shall be permitted
as a Special Use in commercial districts, subject to the following
:onditions and restrictions:
a) Satellite Earth Stations:
What plans of satellite earth stations shall be submitted with
each application for a buiiding permit, which shall Jnciude
a site pian indicating the height, diameter, color, location,
setbacks, foundation details, landscaping and screening, and
-hat such plans shall be subject to approval by the E.R.P.B.
and that such satellite antennas shall be subject to ::he
oiiowing standards:
Location
'aa`l In RS, RT -5 and RT -o -Districts only _
a round - mounted
antennas shall he oermitted and such antennas shall
^e located in the rear of that orcverty or 4-n the
_ntericr side hard and not disable rrom the street.
sb; la all other districts, roof- mounted antennas shall be
permitted, provided, ^Lowever, hat such antennas snail
ce screened from around view by a parapet or some ether
type masonry wail or screening. The minimum height and
iesign of such parapet, wail or screening snail be
subject to approvai by --te _.R.P.B.
D�scusSioN �,�
-c; round- mounted antennas shall also Le cermitted �n'RM-
18, PM -c4 and commercial iist— cts subject _o the
applicable provisions of this section.
_�. landscaping
aa) Ground mounted antennas shall be screened by '_andscauina
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 materials 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 (1o.)
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 all other districts, rear and side setbacks
shall be provided as are required for the principal
building on the building site.
2; wetbacks from Power Lines
Satellite antennas cr any appurtenances thereto,
shall be located not less than eiaht 3) feet from
anv 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 bulldina
site than the main or principal building.
cc; where such a satellite antenna is located on a building
site panic.: _s frontina "con two or more Streets, t.:e
antenna stall maintain the same settack as required =or
t o crincipai buiidina alona each such street.
DiSCUssioN�2
_ . _ per,: sous _cveraae
.he _:ioerv_ous ccveraue Sucn . antennas Sna ccunted
_n comoutina the L.tperv_ous ::cveraae ccr �_uxiliary Ana
ccessory use structures - ocated upon t:".e tuilaina site.
7-uch satellite antennas and heir a=urtenances snail ce
non - reflective black, ;seen or the same coicr 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
aa; That an application ffcr ;nstailation of such antennas
shall be :lade to the Plannina 3oard and t:,e Plannina
3oard snail 'noid a oublib . ear_ na at wnic:n alp Interested
oersons snail be afforded an caportuniz:y tc be .^.earl.
bb; What t::e reccmmendations cf -fte Planning ::�cara, �_-n eaC:I
appiicatl= considered, snail be submitted z and acted
--icon v -::e _it, --ommissicn.
cc; =hat n approving the application for =ne _ :,stailat:.cn
of _he satellite antenna, the Planni.na ?oard tav
_ecommend and the -ltv _ommissicn .-:av crescribe
appropriate ccnditions and safeauards _ , with
the provisions cf t "e Land ^eveicpment -cde.
ival .__v_ew
=ev_ew _nd approval �. -7e r - 7eC
"enUi rep �n an annua 'ene'.ya I Gila a- . acn - "'e a_n
Ina i ; e =^_ai rep -.:ami _ no cs -re :�n Terra -�,:en
_ ee: -no cenT -rr)oer77 zs z�zqUra :TDI'anrn
bistusslo'N�L
bb) "iolations cf suecified conditions and safeguards, when
made part of -he terms ender which the antenna s
approved or the various provisions of this section shall
be deemed grounds for revocation of the auxiliary use and
ounishable as a violation or t::e land Development --ode.
cc; All antennas Installed prior _o ^.e - dootion of :his
ordinance must be brouant Into =ompiiance within _30
days.
: {iii. 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 1"=
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= 1' -0" indicating the height,
color and method of installation of the antenna and that such
clans shall be subject to approval by the E.R.P.B. and that
such microwave antennas shall be subject to the =oilowing
standards:
ocaticn
as ; = � commercial Districts =iv, roof-mounted 7icrowave
antennas shall be permitted, provided, however, :hat such
antennas snail not be visible from the around. _creenina
°rom around view may be provided by a parapet cr some
ether type of masonry wall or screening.
iameter
-te diameter :f sue^ crcwave antenna _..air Xceed
'�ve �1 =eet.
blSe,wssioN 44Z
Root-mounted -ntennas -hair ce :imited -o _ maximum
'neiatit of ten 10 1 feet --cove -he Yoor _n -heir 'most
extended position.
�7ettacks
aai Root-mounted microwave antennas, :n their most extended
position, shall conform to the setback requirements _cr
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 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 -tat an aDioiicaticn for the - installation of such antennas
shall be made to the Planning Board and the Planning
Soard shall hold a public hearing at which ail interested
Persons shall be afforded an opportunity to be neard.
bb :hat the recommendations of the Planning Board, on each
appiication considered, shall be submitted to and -;e
acted upon by the City Commission.
=hat n approving the appiication for the instaiiation
ct the microwave antenna, the Plannina Board :-av
=scommend and the 44 -v commission �ri
zav trescribe
-;
_ccropriate conditions and safeguards in ccnrormiti% ^.
':ne provisions of the Land Deveicoment Code.
_oiations ct - zecitied conditions and = afeauar^s. .�nen
-ade cart ct the =errs ender .�Inich -he intenna __
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 T-and Development Code.
eei All antennas installed prior to the adoption of this
ordinance gust be brought into compliance within 180
nays.
Permit Reauired
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:
ITT rT tnv
READ AND APPROVED AS TO FORM:
-_ -` -' =- TT0?2NEY
21st day of August 1990.
APPROVED:
OR
j
ORDINANCE NO.
AN 'ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA; AMENDING SECTION 12 -5 OF
THE CODE OF ORDINANCES OF THE CITY OF SOUTH MIAMI TO
PROVIDE A SUBJECTIVE DEFINITION OF OVERGROWN LOTS;
AMENDING SECTION 12 -6 TO PROVIDE FOR NOTICE IN
ACCORDANCE WITH CHAPTER 162, FLORIDA STATUTES; AMENDING
SECTION 12 -7 TO PROVIDE FOR HEARING BEFORE THE CODE
ENFORCEMENT HOARD IN ACCORDANCE WITH CHAPTER 162,
FLORIDA STATUTES; PROVIDING FOR SEVERABILITY;
PROVIDING FOR ORDINANCES IN CONFLICT; AND PROVIDING AN
EFFECTIVE DATE
WHEREAS, the Code of Ordinances of the City of South Miami,
Florida presently contains provisions prohibiting overgrown lots
and the enforcement of those provisions in sections 12 -5 through
12 -8; which sections were first enacted in 1950, and
WHEREAS, in 1980, the State of Florida enacted Chapter 182
of the Florida Statutes "The Local Government Code Enforcement
Boards Act" providing inter alia for organization, enforcement
procedure, conduct of hearing, and notices of municipal Code
Enforcement Boards, and
WHEREAS, the Mayor and City Commission wish to adapt the
"previsions of Chapter to govern the enforcement of these
sections of the Code and to provide an objective standard as to
the determination of overgrown lots and
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. Section 12 -5 of the Cade of Ordinances of the
City of South Miami, Florida, be, and hereby is, amended to read:
Sec. 12-5. Overgrown Lots Defined and Prohibited.
It shall be unlawful for any owner or owners of any
lot, parcel or tract of land within the City to permit
weeks, grass, or undergrowth to grow thereon to a
height of twelve (12) Inches or more from the ground;
or to permit rubbish, trash, debris, dead trees or
other unsightly or unsanitary matter to remain thereon;
or to permit the existence of depressions or
excavations or any other condition on such premises
tL
wherein water may accumulate and stand in such manner
or fashion as to make possible the propagation of
mosquitoes therein.
Section 2. Section 12 -6 of the Code of Ordinances of the
City of South Miami, Florida, be, and hereby is, amended to read:
Sec. 12 -5. Enforcement Procedure and Notice.
The enforcement procedure for the aforesaid section,
Includinq notice of violation, shall be in accordance
with that set forth in Chapter 162 Florida Statutes.
Section 3. Section 12 -7 of the Code of Ordinances of the
City of South Miami, Florida, be, and hereby is, amended to read:
Sec. 12 -7. Conduct of Hearing
Hearings
for
violations
of Section 12 -5
shall
be in
accordance
with
that set
forth in Chapter
162 ,
Florida
Statutes.
Section 4. 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 5. All Ordinances or parts of Ordinances in
conflict herewith be, and the same hereby are, repealed.
Section 6. This Ordinance shall take effect immediately at
the time of its passage.
PASSED AND ADOPTED this nth day of , 1990.
APPROVED:
MAYOR
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
C Y ATTORNEY
2
You are hereby advised that if any person desires to appeal any decision
with respect to any matter considered at this meeting or hearing, such
person will need to ensure that a verbatim record of the proceed;ngs is
Asade, which record includes the testimony and evidence upon which the
appeal i.s, based.
r
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, AMENDING SECTION 15 -63, MISCELLANFOUS
PROVISIONS OF THE CODE OF ORDINANCES OF THE CITY OF SOUTH
MIAMI BY PERMITTING OPEN LOT CHRISTMAS TREE SALES AS _A
SPECIAL USE IN SPECIFIC ZONING DISTRICTS; PROVIDING FOR
TERMS AND CONDITIONS OF THE SPECIAL USE; PROVIDING FOR
SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT AND -
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Code, as presently enacted, does not provide
for open lot Christmas trees sales; and
WHEREAS, the Mayor and City Commission wish to amend the
Code of Ordinances of the City of South Miami to permit open lot,
Christmas tree sales upon certain terms and conditions in
oning districts ;
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR. AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. Open lot Christmas tree sales shall be permitted
under certain terms and conditions is specific zoning districts
from the effective date of this Ordinance.
Section 2. Section 15 -63 of Code of Ordinances of the City
of South Miami. be and hereby is, amended to permit the sale of
Christmas trees inkladistricts under the following terms and
conditions:
15 -63(a) Open Lot Christmas Tree Sales
Open lot Christmas trees sales located within the
City of South Miami may be authorized, subject to the following
conditions and restrictions:
1. The setting up and dismantling of all equipment,
structures of apparatus shall he accomplished only between the
hours of 7:30 AM to 6:00 PM, Monday through Saturday. None of
this work shall be done on any Sunday.
2. The applicant for such Christmas tree sales shall
si-irmit a sketched plan to the City Manager of all equipment,
tents, structures, off- street parking and tree storage and /or
displays.
,Z 3. All equipment, ten , structures, tree storage
and /or displays shall provide setbacks as required by the City of
South Miami zoning code and the South Florida Building Code.
i
R
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, AMENDING SECTION 15 -63, MISCELLANFOUS
PROVISIONS OF THE CODE OF ORDINANCES OF THE CITY OF SOUTH
MIAMI BY PERMITTING OPEN LOT CHRISTMAS TREE SALES AS _A
SPECIAL USE IN SPECIFIC ZONING DISTRICTS; PROVIDING FOR
TERMS AND CONDITIONS OF THE SPECIAL USE; PROVIDING FOR
SEVERABILITY; PROVIDING FOR ORDINANCES IN CONFLICT AND -
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Code, as presently enacted, does not provide
for open lot Christmas trees sales; and
WHEREAS, the Mayor and City Commission wish to amend the
Code of Ordinances of the City of South Miami to permit open lot,
Christmas tree sales upon certain terms and conditions in
oning districts ;
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR. AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. Open lot Christmas tree sales shall be permitted
under certain terms and conditions is specific zoning districts
from the effective date of this Ordinance.
Section 2. Section 15 -63 of Code of Ordinances of the City
of South Miami. be and hereby is, amended to permit the sale of
Christmas trees inkladistricts under the following terms and
conditions:
15 -63(a) Open Lot Christmas Tree Sales
Open lot Christmas trees sales located within the
City of South Miami may be authorized, subject to the following
conditions and restrictions:
1. The setting up and dismantling of all equipment,
structures of apparatus shall he accomplished only between the
hours of 7:30 AM to 6:00 PM, Monday through Saturday. None of
this work shall be done on any Sunday.
2. The applicant for such Christmas tree sales shall
si-irmit a sketched plan to the City Manager of all equipment,
tents, structures, off- street parking and tree storage and /or
displays.
,Z 3. All equipment, ten , structures, tree storage
and /or displays shall provide setbacks as required by the City of
South Miami zoning code and the South Florida Building Code.
4
4. The operation of such Christmas tree sales shall be
conducted between the hours of 9:00 AM to 10:00 PM, Monday
through Saturday, and from 11 00 AM to R: 00 PM on Sunday.
S. The use of a��gpli'7�a�n, flashing lights or other
similar attention attractors and advertising devices shall be
prohibited.
h. Off- street parking shall be provided as shall as
required by the City Manager.
7. Adequate sanitary facilities shall be provided upon
t4�?premises of the Christmas tree sales.
8. All tents and equipment and structures shall be
maintained and kept in good order and repair and, upon
inspection, if found to be in disrepair, shall be subject to
removal and /or replacement
9. The operation of such Christmas tree sales shall be
in accordance with the fire safety, standards as set forth under
the -rn�n 1 ; t �„� a...._- .4e --T- e„
anZ- the "South Florida Building Code` . �,•^e�/d.�P.��
10. Individuals conducting such. Christmas tree sales
shall be subject to maintain the premises in a clean and sanitary
condition during the sale period.
11. All trash, debris, and unsold Christmas trees must be
removed from the premises within a period of seventy -two (72)
hours from the last day of sale and the premises shall be
restored to its original condition on or before December 31 the
year of the sale.
Section 2. If any sentence, section, clause or phrase of
this ordinance is.held to be ,invalid by any court of competent
jurisdiction, then said holding shall in no way affect the
validity of the remaining portions of the ordinance.
Section 3. All ordinances or parts of ordinances in
conflict erewith be and the same are hereby repealed.
Section 4. This ordinance shall take effect immediately at
the to omit passage.
PASSED AND ADOPTED this
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
day of 1 QQ0 .
APPROVED:
MAYOR