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CITY OF MIAMI. FLORIDA
IN1rER•OFFiCE MEMORANDUM
"~ Honorable Mayor and Members DATE .
of the City Commission
~UBJE~T
CQ~M aEFERENCES
Cesar H. Odio
City Manager ENCLOSURES
0 C~' ~ 6 1989 ~'LE
Properties Rezoned between
12 and 18 months ago; No
Building Permits Issued
Agenda Item, City Commission
Meeting on Planning & Zoning
October 26, 1989
_.ffi:.
DISCUSSION ITEM
In response to Commissioner Plummer's request during the City Commission
meeting of May 11, 1989 (Item 20), attached is a list of properties which were
rezoned by the Commission in the period between I2 and I8 months ago and for
which no building permits have been issued to date (see attachment A).
Pending further direction during discussion, monthly updates will be sent to
the Commission per the discussion of May 11, 1989 (see attachment B).
8ACK6ROUND
_ By memorandum of May 11, 1989, the attached Law Department legal opinion was
transmitted, which opined negatively to the proposal to attach time
restrictions to changes of zoning but further stated that property may be
down-zoned following the same procedures and applying the same standards as
the original rezoning application (see attachment C). Two alternative
,~ administrative procedures were outlined in the transmittal memorandum.
~~ Attachments
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- (~- - ATTACHIiEP1T A
CITY of f IAMf. FLORI O ~ ? + ~ ~r ~~ 1
ENTER-OFF!'C'E •NtB~01 /gfVOUM 'f~(~ f
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• -' Sergio Rodrig::ez - "tE' "~uiy 3 , t q8q ~~[~
Assistant City Manager
'~' suuccr. pro rties Rezoned
Via: •~dith M. Fuentes, Director~t~, Twelve (12) to Eighteen
' uildin d~.~Zot~}tng Depart sr! (18) Months ago and no
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rROM _ ~~,,r.`..~ REIrER[NCEI~ Qldg Permit Issued
s e~p eC nuardi. P.
'~,` i Administrator ENCf.OSIJR[!:
.~ _
As directed by the City Commission, following is a list of
,~ properties which were rezoned between twelve (12) and eighteen
z (18) months ~~go and for which no building permits have been
issued to date:
`~ Location Ordinance tdo. Date
----------- ------------ -----
t. 815 N.w. ;7th Ave to33a to/22/87
2. 1720-70 N.W. 3u St ~
1721-57 N.w. 33 st to336 to/22/87
3. 1500 rl.W. 35 st 10338 10/22/87
`r - x• 2575 S.E. 27 Ave 10352 12/02/87
5. 1025 N.W. tq Ave 10354 12/02/87
b. Coconut Av./Virginia St./27 Av. 10356 12/i0/87
a' T• 3151-99 S•W• Z7 Ave 10362 12/10/87
8. 2951-?9 S•W. 22 Terr 10374 12/10/$7
9. 3616-38 N.W. 23 Ave 10381 ~ 01/28/88
'~;`; to. 2395 N.w. ;5 St toot 1 03/2x/88
-~ t1. 829-833 S.`a. 29 Ave 10446 06/23/A8
_', 12. 829 S.W. ~9 Ave(bemo Permit issued) 10447 06/23/88
13. 2551 s.W. 27 Lane t04kg 06/23/88
_3' ix. N.W. 7-8 St., 3rd Ct-4th Ave 10520 11/17/88
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cc `.Edith Fuentes, 81tlg ~ Zoning Director
••Guillermo Olmedillo, Deputy Director, Planning Dept.
'~ Juan Gonzalez, Chief Zoning Inspector
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ATT~.CF~ffi2~'T B
Mrs Fernandes: Aa amradad.
Maroc Suarazs My vote on the •acoad reading before was a na.
Mr. Plummer: Wait a minute, what xas the ameadmaat?
Mr. Rodriguez: SPI-19.
Mr. Fernaadezs SPI-19 that area added.
Mr. Rodriguez: Was left out.
Mr. Plummers Oh, oh, OK.
Mr. Odio: You lost four months of....
Mr. Plummer: No, yvu lost four months of .fey
before .
Mr. Odios W~ couldn't do it.
i
sue by not bringing it up
Mr. Plummer: Tau couldn't do it, p g t, you didn't haw the people. No
money. I'm going to get a tap• reaoreter and I can rid of the City Manager.
Mayor Suarezs Debate is closed aa~,his item, please call the roll.
AN ORDINANC8 EDtTITLSD-
Ali ORDINJl~iCB Alf3NDING SECTIONS 62-61 AND bZ-6Z OF TAE
CODE OF TAE~~r~~ZTT OF MIAMI. FIARIDA. AS AMENDED, ST
I~iCaBASING i~WTII!TG AND PLANNING RBLATm FEES; PROVIDING
YOA AN ADpBATISING SURCIiARGE; FtiRTAEA INCABASING FEES
COgiCBANIN~ APPLICATION REQQ3STS FOR REVISi~1 OF
DECISItiN'S OF TA6 ZONING BOARD, ZONING ADMINISTRATOR OR
DIR3CS'OA OF TSB DEEARTMgJT OF PLANNING; AND CONTAINING
A RSA PROVISION AND A SE98RA8ILITT CLAVSB.
Was i ducal by Casamisaioaar Plummer and secoadad by Commissioner
Kennedy as as passed on its first raadiag by title by the following vote:
AYESs Cosomissioaer J. L. Plumasar, Jr.
Commissioner' Rosario Ksaasdy
. Commissioner Millar Daxkias
Mayor Xavier L. Suarez
Ss. Vice Mayor Victor Da Yurre
ABSENT: NOne.
The City Attorney read the ordinassce into the public record wad
announced that copies Mere available to the members of the City Commission sad
to the public.
COMZiBNTS MADE FOLLOWING ROLL CALLS
Mr. Plummer: Mr. Mayor, I could ask, vrhethsr it's in motion form or not, that
!rasa this day forxard that all changes of zoning by this Commission is xhich a
permit is not pullsd, I would like a list furnished to Lhis Commisaioa, all of
us, oa hose items that a permit is not pullsd within iZ months after the
chsage of zoning taken effect.
Mayor Soarers Yas, because ve did peas •asct an ordinaac• that said required
soma step to be taken if after txelve...
Mr. Plummets No, it's not bean passed yet.
Mr, Rodrigues: Yoa should receive already today a mama that eu+plaias ~-ou vhr
y+au cannot do that but xa can do something else instead o! that.
Dlr. Plus wars Oh, ao, ao, aa. You can ;ive sie . a list.. .
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Mayor Suarez: Hs just wants a list.
`~a~.,;,,....
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Mr. Rodriguez: You have a Tar, qou have a requirement 6y Tar that you cannot
bring items before 18 months after the action has been taken by the
Commission.
Mr. Plummer: OK, but I can still...
Mayor Suarez: Would you give the Commissioner a list of those that have not
moved on their building permit after twelve months.
Mr. Plummer: I'll modifq my request to 18 months. OK?
Mr. Rodriguez: We'll do that.
Mayor Suarez: Make it 3'e months.
Mr. Plummars That anyone aho has not pulled a permit within 18 months after
their change of zoning. that that list ba provided oa a monthly basis to this
' Commission.
Mr. Rodriguez: ~le'll do that.
Mr. Plummer: The other question. when i~ the traaaitioaal elimination coming
before this Con:missioa?
Mr. Rodriguez: I just rescheduled it for the meeting of the 25th.
f~
Mr. Plummets Thank you, sis.
21. SBCCND RSLLDING ORDINANCBs Amend Coda Section S4-l00 - allot for
construction sad location of guard houses in dedicated right-vf-way.
Mayor Suarez: Item 21.
Mr. Plummer: Oh, Z got a better one for qou. •
Mr. Jorge Fernandez: Yes, in item ZI re mat with individuals w , at the last
meeting, had .soma concesaa about it. W~ iacorporatad thei concerns, we've
mat with the admiaistratioa and the ordinsnce that's is fr~'at of you now for
second sad final reading reflects everyone's concurreaice. This is the
ordinance amending that code provision that could al building of a guard
house in the dedicated right-of-ray. ~~
Mayor Suarez: This is a second reading of the at~inancs that would enable to
do this but ao specific guard house is.approved/ t thin point or anything.
Mr. Faraandezs Correct, corzsct.
Mr. Plummer: Mr. Miyvr, I rill moves t with the full uadarstaading of all
pasties. concerned that is ao way as:s%~we approving a guard house. That each
application would Nava to come ba~ra this Commission, stand oa its own, and
the Commission is Tully emporers~ to make nay and all resolve that it wishes
oa that particular site, incl, ag denial.
Mr. Faraaadezs Correct, is the ray it reads.
Mr. Plummer: I move
City Commissio That mesas that it must come to you and that you must
approve o~c di~,jipprove.
Ms. Plvs~prrs As a revocable permit, it must ba approved by this Commission.
design taadscaping...
Ms. Fesaaadez: G rd houses are permitted by revocable permits granted by the
Mr •tnaadez: Yes.
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~~ ~ ATTACHI~SENT
CITY OF MIAMI. FLORIDA ~~
INTER-OFFICE MEMORANDUM ., ~'f , ,
To: Honorable Mayor and Members o~TE~
of the City Commission
SUBJECT
FROM :~esar H. Odio j
REFERENCES:
City Manager
ENCLOSURES:
- ~ ,ry, i-~ rt' ~ --
May II;.~1989, F+24
time Restrictions Attached--~
to Changes in Zoning
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Per the verbal request of Commissioner J. L. Plummer, Jr., during the
discussion of planning and zoning items on April 27. 1989, attached is a copy
of the law Department legal opinion responding to the question of whether time
restrictions may be attached to changes in zoning.
~ While the Law Oepar~tment legal opinion is ne+pative, substantially the same
~~ result may be achieved by directing the Administration to pursue of the
~~~ following two administrative procedures.
After observing the intervening. time limitation in Section 3514.3, Zoning
- Ordinance 9500, i.e. that once the City Commission has rezoned a property the
~~ Zoning Board shall not subsequently consider a petition to rezone the property
until I8 months have passed (unless waived by the Coaetission pursuant to
Section 3514.5), the Administration could either:
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1. Eighteen months after an individual re-zoning, review the
files to see if a building permit had been issued. If not.
,n the Planning Department would re-study the property and file
an application for change of zoning to the Planning~Advisory
Board, following the criteria in the law Department legal
opinion.
~ or
~~ 2. Present an annual report to the Commission showing the status
of prior re-zonings and building permits for up to 2-1/Z
-'~ years. The Commission could then designate those properties
that the Planning Department should re-study and" file
='a applications for change of zoning to the Planning Advisory
Board, following the criteria in the Law Department legal
f opinion.
Please indicate to my office if you want this entered as a discussion item on
the next City Commission agenda.
Attachments
cc: Jorge ~.. Fernandez, City Attorney
Law Department
Attnt Josl E. Maxwell
Chief Assistant City Attorney
C. Miriam Maer
Chief Assistant City Attorney
Edith Fuentes. Airector
6u i ]dung and Zoning Oepartm+~n~
Attn: Joe Genuardi
Zoning Ads~inistr~ItQr,
' Alanni~o ~eaar~nt /'
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OA?t• R16t:
sar H/~0~i3.o. City Manager August 1l. 1987
Aft': .,Aurelio Perez-Lugoaes su.,t~T
Discussion item concerning
L, T3.me Restrictions attached -
,_ to changes is zoning
C '' A . DOUghe~ty ccrc~cnccs City COIItmi3sion Agenda.
t~ Attorney September 8, 1987 _
cNe~oau~cs ~ 1~ _. .
Please place the following discussion item oa the
ptember 8, 1987 City Commission Agenda: -
"Di~.:~oussioa concerning City Attorney's Opinion oa Time
F~im.~tatioa Restrictions which may be attached to
changes in zoning."
D:RFC:has:P444 =
. Sergio Rodriguez/ 'G ,~~
Edith Fuentes w','Y' -
Don Cather
G . Miriam Meer .. ~ -~ -= r' : J -
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3 CITY OF MIAMI. ft.,oR10A ; ~ ~
INTER-OFFiCL MEMORANO~~M • ' ',
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'O Honor 1 Mayor and members DAT[s Augtts-t_.,3. 1987 ""'MIA-87-
of e C ty Commission ~'~' •-151G l~u/1y./"l.G;~.
su.~ccT Legal Opinion: ,./,r,~~;,~~.
i C,~ I. Time~•Restrictio~is Attach
/ to changes o~ Zoning
/ROM Luc' . D~gherty RsR[.[~ecs~I• nt Zoning Gaw Decisi
Cit Attorney •~- •-
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[NCLOfN11[!.
Vice Mayor J. G. Plummet requested a legal opinion on
substantially the Following question:
I. CAN CHANGED OF ZONING INCLUDE A
CONDITION WHICH IMPOSES A TIME LIMITATION
WITHIN WHICH DEVELOPMENT MUST OCCUR OR THE
ZONING WILL REVERT TO ITS PRIOA DESIGNATION?•
_ The answer to your question is that the prdperty may be
down-zoned but only by following the same procedures and applying
the same standards as the original rezoning application,
When applications for changes in zoning. are submitted, the
zoning board must make recommendations based on its consideration
of several criteria. Among the sixteen (I6) specific criteria
are included whether or not:
9
1. The change is in conformity with the Miami
Comprehensive Neighborhood Plan;
2. The change is out of scale with the needs of the
neighborhood or the C ityf
3. Changed or changing conditions make the passage of
the proposed change necessaryt
~•-Tha proposed change would materially alter the
population density pattern And thereby increase or
Duarte: the load on public facilities such as
~ehools, util~.tiss. Streets, etc.; and.
5. There are subaka~tial raasona• why the pcoperty
cannot be ~ssed in accord with e~cisting zon~,ng,
City of Miamf, PLQrida, 4rc)inance NQ, 9SA4,
Section ~St~9 ( sa+e this section For the full li'~-t
of criteria?.
Ln general, the above criteria that moat be addressed by the
Zpnlnq Board and City' Coauaiso~on relate to the eflecta o~ the
prpposad cbat;9e. These criteria mast ba addcs~r~red ~c;~r salty
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August 3, 1987
Honorable Mayor and members
of the City Commission ~ Page 2
Therefore. a change of zoning that would cause a previously
granted zoning change to revert to its prior designation must be
treated with the same dignity and meet the same requirements as
other types of change of Zoning applications. i.e., the change
must be in conformity with. the Miami Comprehensive Neighborhood
Plan, etc. These criteria must be applied whether the condition
is imposed by the City Commission oc is negotiated. If the
decision on a change ~f zoning was based upon an agreement
between the City and the property owner that the zoning will
revert to its prior designation if development is not begun
within a certain time period. there is a potential problem that
the decision will be labeled "contract zoning" and therefor be
invalid as an abdication of the municipality's police power. If
there is no valid basis independent of the agreement upon which
to justify the change of zoning, the court will declare the
_ ~ action contract zoning. Kartnett v. Austin. 93~ S"o.2d 86 (Fla.
19561.
In Hartnett, the City of Coral Gables passed a zoning
amendment w-hict` would allow construction of a shopping mall,
using language that said the rezoning was "subject to and
conditional upon" observance of certain restrictions, among which
were the building of a surrounding wall and the provssion of
adequate police protection in the area at the owners' expense.
The Supreme Court of Florida held that the conditioning of the
amendment upon the subsequent execution of a contract between the
municipality and a private party is invalid contract zoning.- The
language used made it clear that the change was only made because
of tha property owners' promise to provide certain improvements.
This is an invalid reason upon which to base a zoning ordinance
amendment. City of Miami, Florida, Ordinance No. 9500, Section
3509.
' ~, 8owey~:ince the Zoning Ordinance provides in Article 35.
Section 3502.1 that applications for zoning ataendments may be
made by the City Co~aission, Planning Advisory Board, Zoning.
`' Board, any other department or agency of the City, or any person
~; ether than those listed above, in the event a time condition. is
attached to the change of zoning and the pcoparty is not
'', ! dav+~lvp~d within said time Eraa~e the Planning Oapartment could
n#~kiate a rezoning of the property. Of course,. in accordanc¢
~' wiith the Zoning Ordinance, tha procedure Eoc ehange of ~Qni~oq
;,~ would hays to be Followed, and the sane criteria for ~onlnq
j!, review applise as Eor the Initiation cE any down roving proposal.
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Honorable Mayor and members
of the City Commission
w-.`
August 3, 1987
Page 3
II. AT THIS TIME. 4dE' BELIEVE. IT IS IMPORTANT
THAT THE COMMISSION SKOULD BE AWPIRE OF THE
FOLLOWING RBCENT 3RD DISTttICT COURT OP
APPEALS ANO U.S. St1PREME COURT ZONING LAW
DBCZSIONS:
1. City of Miami 8eaeh v. Asoco Oil Co.. 12 F.L.W. 1539
(June 23,
The 3rd District Court of Appeals affirmed the Circuit Court
of Dade County's decision invalidating City o'f Miami Beach Zoning
Ordinance Section 27-1.D.3. This ordinance was aimed at
preventing state-Licensed vendors from selling alcoholic
beverages for off-premises consumption. Aowever, in Florida
Statutes t198S) Section 563.02, which sets licehse Eees for
vendors, the legislature has expressly preempted any municipality
or county authority from enacting zoning ordinances prohibiting.
the sale of beer by state-licensed. Gasoline filling stations,
for off-premises consumption. The statute states that "venders
holding such off-premises sales licenses shall not be subject to
zoning by municipal and county authorities." Therefore; the
issue of gasoline stations selling beer and wine for off-premises
consumption cannot be controlled by local zoning ordinances. You
may recall that this Commission did not amend the current City
Ordinance which prohibits such sales. However, by legal opinion
this provision has not been enforced. tf the state Law is
amended in the future, the City Ordinance could then be enforced.
2. First En lash Bvan elical Lutheran Church of Glendale
v. Los Ange es Cou tom, 9 L~ ~ ~ 2 ( June ,
The First Lutheran Church operated 3 retreat center from
1957 untieS'S~S in a canyon along the banks of a creek that is a
natural drainage channel for a watershed area. in 1978, a flood`
destroyed the complex, and Los Angeles County adopted an interim
ordinance pcohtbitinq construction within the flood area, which
took effect inuaediately to protect public health and safety. The
United States Supreme Court held that this regulation, which
effectively denied the church temporarily, of all uss of its
property, entitled the church to be compensated 'under the Fl.fkh
Amendment "just compensaition clause" for th• period beFore the -~
courts finally determine that the regulation is A "taking" of
property. wen invalidation of the ordinance does nos reliesr
the government of its duty to co®pensate for the inv~~cs~
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Honorable Mayor and members
of the City Commission
August 3, 1987
Page 4
condemnation period during which the taking was effective, as
invalidation without payment of fair value for the use of the
property during which the church was denied such use is a
constitutionally insufficient remedy.
j 3. Machado v. Musgrove. I2 P.L.ii. 1729 (July 14, 1987).
Petitioners sought to have their property rezoned Prom GU
. (interim zoning) to RO-SA (residential office) in an area
designated by the comprehensive land use plan as estate
residential up to two units per gross acre. The County
Commission granted the requested zoning change. The Dade Circuit
Court for Dade County reversed the :Commission's decision, thereby
voiding the rezoning. The court applied the "fairly debatable"
standard, which says that if reasonable people could differ as to
the propriety of the zoning action, i.e., whether the action is
arbitrary or an abuse of diseretion,~ then a reviewing court will
not disturb the administrative decision. The 3rd DCA held that
was the incorrect standard to apply, and stated that the correct
teat in reviewing a challenge to a zoning action on grounds that
it is inconsistent with the comprehensive plan is whether the
zoning authority's determination of conformity with the
comprehensive plan is supported by competent and substantial
evidence. This burden of proof is harder Eor an applicant to
meet, as it calls Por strict judicial scrutiny instead of
deferrence by the courts to the Commission`s action. The 3rd
District Court of Appeals denied certiorari, however, thereby
upholding the Circuit Court's voiding of the rezoning because the
applicants failed to show that their proposed commercial project
was consistent with each element of the land use plan and that it
furthered its objectives, thereby applying the strict judicial
scrutiny test.
........
4. •l~i~en v. Calilocnfa Coastal Commission. 1 B.L.W. Fed.
51085 (June , 8
Tha California Coastal Commission granted a permit to the
Nolians to replace a small bungalow on their beach front property
vrith a larger house upon the condition that they allow the public
an easement to pass across their beach, which was located between
twp public beaches. The state made the claim that the easement
wis necessary to Eurtber such legitimate govecnmentai gaala ae
protecting the public's ability to see the beach and prwentinq
beach cong+~stfon. Ths United Staten Supreme Court ru1Rd that-the
- conditioning of a building permit upon the aasen~ent grant was the.'
n~rrect peeaaedure to use, as the conditi.~on does no+t sesy~t
~~ ~ public putposaa ceiatsd to permit requirements. Tate St+ate'q
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Honorable Mayor and members August 3, 1987
of the City Commission Page 5
other goal, that of advancing its comprehensive plan to continue
beach access arising from prior coastal permit decisions. should
be met by an exercise of its eminent domain power, thereby paying
Eor the access easement. Although this goal is legitimate,
however, that "does not establish that the Nollans alone can be
compelled to contribute to its realization." 1 FLW 51089.
PREPARED BY:
.M rLam Maec
Assistant City Attorney
.LAD/GMM/rcl/ebg/M077
cc: Mayor Xavier L. Suarez and City Commissioners
Cesar H. Odio. City Manager
Sergio Rodriquez, Director of Planning Department
Donald w,a, Cather, Director of Public blocks Department
Editti pae~ntes, Director of Building and Zoning Department