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Home My WebLink AboutCC 1989-03-23 Discussion Item (3)�iTY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM 0Siitgio R6driguezt Director --ATE FILE March 20t 1989 NIA-89-14 Planning Department SUBJECT Request for Legal Opiniont 3 Items, City COMAidbibn March 23, 1989, Agenda L. Fe nandez I�EFERENCES 'lor e L2 +City A ENCLOSURES This is in response to your request for a legal opinion wherein you asked substantially the following questions: 1. WHETHER TWO PRIVATE PETITIONS (3729-49 N.V. 24TH AVENUE AND 5723 S.W. 3RD STREET), NOW SCHEDULED ON THE CITY COMMISSION PLANNING AND ZONING AGENDA FOR . MARCH 23, 1989, ON FIRST READING PERTAINING TO MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN (SEPTEMBER 1985) AMENDMENTS, CAN BE LEGISLATIVELY DECIDED ON MARCH .23t 1989, OR ARE THEY HOOT BY VIRTUE : OF THE IMPOSSIBILITY OF COMPLETING: SECOND READING AND TAKING EFFECT -PRIOR TO MARCH 27, 1989, THE EFFECTIVE - DATE OF, .-THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN ("MNCP") 19891-2000. 2. WHETHER THE TWO PRIVATE. PETITIONS IN,:I� (ABOVE) GAIN ,VIABILITY- BY REASON OF SECTION 7, ORDINANCE NO. :105441v .THE MCUP,, 1989-2000 ADOPTING -ORDINANCE. 3. WHETHER: A' RIVATE PETITION (6500-6598 W. -: FLAGLER)i NOW SCHEDULRD: ON CITY: COMMISSION PLANNING AND.: ZONING AGENDA FOR MARCH. 23s, 1989, ON FIRST-, READING, TO MIAMI �COMPREHENSIVE:_' NEIGHBORHOOD- PLAN. (SEPTEMBER 1985).'' AMMMENTS 6, CAN. BE LEGISLATIVELY -DECIDED,.- ON MARCH.,23,1989v OR, A) IS IT: RENDERED - MOOT AS �: IN 1 (ABOVE), OR; B)..-DOES IT GAIN VIABILITY AS v IN 2 (ABOVE):# WERE. THE .:CITY,, COMMISSION HAS ALREADY INSTRUCTED THE PLANNING DEPARTMENT TO INCLUDE THE CORRESPONDING AMENDMENT. IN ' THE MCNP 1989-2000. li 'Z ai3 -- pro eity, �.1ated 00 at apptoximately 879 Northeast Street, -.40tier-paxtioulax1jr desoxibed. 12 ns, gunu Ir -P'. The applications referenced in the first question are first:_ reading requests for amendments, to the Miami- Comprehensve Nelghuarhood 'Plan (September 1985) and Addendum ("the old comprehensive plan"). As an amendment to a land use plan#.: two (2) separate advertised public hearings are required#, 5163.3184(15)(b), Fla. Stat. (1987), they cannot take effect untiI thirty (30) days after passage, MIAMI,, FLN.j, CHARTER 56(f)r nor; can they be the subject of an emergency ordinaftceo,� 5166.041(3) (c), Fla. Stat. (1987). Fu rther, the earliest date that either item could have its required second reading would be the next scheduled City Commission meeting of April 13, 1989, unless, of course, there was a special meeting. Even in the case of a special meeting at least five (5) days would have to pass after notice. of the second public hearing was published in..a newspaper of general circulation. - The scenario outlined 'above is important becausethe, o ld, comprehensive. neighborhood plan, which the subject., proposed amendments'seek to change, will `itself' cease to exist on.March 26, 1989. On that= date,,, the - of comprehensive<. plan V1JLJL be. superseded by the, new Miami Comprehensive, Neighborhood'Plan 1989- 2000 ("new- comprehensive: plan"). The' new comprehensive plan' is �. an entirely different ordinance (Ordinance No.,10554) from its; . predecessor 'and . will govern all development. 'activity$, except as Provided in. Section 7 thereof (-addressed more fully below) superseding -of an ordinance-, by, 'another -fterminate its force and effect from the, date: :the repeal-(expressor implied becomes effective -and ',stays all proceedings,-atising from At which are pending at the time of repeal, to the extent that it g� does not' disturb vested private rights see j,e..,,, 6McQUILLIN` MUNICIPAL CORPORATIONS 521.40 (rev.3d el. -Thus, .;',.the 4 t T r 490 lit 01, R Sergio Rodriguez, Director March 200 1989 Planning Department Page 3 Generally, a law continues in force indefinitely until.it is a, legally repealed, superseded or expires as a consequence of a ;,— built-in time limit. 5 McQUILLIN, MUNICIPAL CORPORATIONS.S15-4$ (rev. 3d ed. 1981)0 Ordinance No. 10544, which constitutes the new comprehensive plan for the City of Miami, provided an t effective date forty-five (45) days subsequent to its adoption date, at which time it will supersede the old plan. March 26, 1989; is that effective date. On that day the old comprehensive plan will cease to regulate land use, except as provided in }'V Section 7, thereof. Said section provides: f For a period of 180 days from the effective _ date of this Ordinance, applications for building permits may be considered if they are in accordance with the Miami a -f Comprehensive Neighborhood Plan (September, i 1985) and Addendum and such applications are related to development activity approval: ,I requested of the City: of Miami ' prior.: to the —` ';effective date .of the' Miami Comprehensive —� Neighborhood Plan 1989-2000. For purposes of _ this paragraph "development activity" shall+` mean applications for building permits_ or 1 zoning, approvals. and zoning changes,..;made `- pursuant to Ordinance 9500, -:the Zoning' —; Ordinance of, the City. of Miami, Florida.. All' ; ,' building permits issued later than.,180,.days r "' from the-, effective; -date of; this Ordinance shall be in _ accordance with. the, Miami _ Comprehensive Neighborhood Plan 1989-2000. M ap ,�, MIAMI, FLA., Ordinance 10544 (February 9, 1989). The thrust of Section 7 is directed toward that "development activity" which: fully complies.with requirements of the. old comprehensive plan asf it existed on the date.of its demise.t- ® Ordinances speak only from the.time they go into..effect: 5. McQUILLIN, MUNICIPAL CORPORATIONS S15-39 (.rev. 3d ed. 1981). Thus, if the old .comprehensive -.plan expires before an :;applicant ; ' can complete the process for complying with, it, : any--, related zoning changes which relied on such.change. comprehensive plan, and is to comply with provisions of the 4 new comprehensive plan, dies and is, indeed, "moot." { The City is not empowered to adopt any legislation noJ. Y Y: compliance with its comprehensive plan. Machado v. Musgrove, 579.,,�t< 4 i t � •G1l� }� �� '1.!+ (Ler N"-rii+a }"L is �. �.. J�. ', b iy"L c. S. y '3t % ,,�1'r�r -'a' Y y j .� r P i r Y. Y; .��;,Yd' ,p„ r ?'}tt�.a�. EU'rfi a r•1m t* U .t`f� f .:.�. r `ry ,it. .Py, l,R ti. �� i y, kJ �} �r.,m{�''„'*„ -L 'a✓ d �, ry. -t v s. rYsw + µ si �� "y.. duk''k't'W � '? ✓'x.Jek s` "'�*r 4 1 . � r , : } a ... i c "`* n l " "l K" SS �"K"i i�; � ++.�-xs � yYyr m • r ti,r y �.J�# r r n sY,.cm.} ^t, X.. '�s,� v 'Sc��alv --� - -'� a ._< :•aw' _. ; �.�..r` _ai..�t-., .,... : �'.', . J.. .. ! 45'.R*. ..,�"'. .x: x� '4'r Y... �'Y. r hf.i;.}C,'�. i°P�J:•1ta � .a....- -i ''. - _ 4 a t� ,�� t�t�r�r►tat. I1tif1T'f1TA1Q't!'1= A1r1'Rtifi1'TiiC: "�$ 2(i1QI� - i i r� oatts"C2 Ito. ■ Sergio godriguez, Director - March 19 20, ZJ ' Planning Department Page 4 - t So.2d 629 (Pla. 3d DCA 1987). As indicated above, it is not possible at this time for the two subject applications to comply L with the comprehensive plan because the amendments to the old plan would take effect, hence come into existence, after said plan ceased to_exist. "- The answer to question 3 is bifurcated. It is in the a` negative, thus moot, as it pertains to PZ-10's old comprehensive Af Plan amendment, but is in the affirmative regarding the requested PZ-11 zonin amendment. You indicated in your request for this , legal open on that the new comprehensive plan was previously amended by City Commission action and said amendment permits the zoning use- requested at 6500-6598 W. Flagler Street. If that is corrects, this- Office is of the opinion that a requested zoning t change, which does not contravene the new comprehensive plan, may properly be the subject of a public hearing on first reading,.' March`,23, 1989. The normal cycle for hearing this request on` §«:. second" reading would occur, after the effective date of the new ° com rehensive fan thus the P---- P _ . ' proper:su ject,.of -adoption the City Commiss on acted'to amend -Ordinance No. 9500 as requested: Conclusion'" , ,t Consequently, until judicially or legislatively determined` otherwise, March 23, 1989, City Commission Agenda, 'Items PZ16, PZ-7, PZ-8, PZ-9 and PZ-10 would be rendered ineffectual by virtue of the combined affect of the demise of. the old'.': . comprehensive plan, the noncompliance of said requests with provisions of the new comprehensive P plan, the tardy :effective,. date of requested old comprehensive` plan amendments, and- the effective date of the new Miami Neighborhood Comprehensive Plan " ■ 1989-2000. #. o V PZ-ll, on the other hand, may proceed, inasmuch as the requested zoning change is, according to Planning Staff and �y information contained in your request, currently in compliance with the new comprehensive plan and will not be heard on second. reading by the City Commission until a date subsequent to' the` effective date of the new comprehensive A plan. Thus, its i effective date would not come until the later part of..May, nearly plan, - two months after provisions of the new comprehensive , which rvould permit such use, become effective. Nl` al r � 1 J � 1z 54 h1 • k ' ��srb �� ' � :k`i�,' r t x ti ,•��' �f i �4 '¢ �" =i �� ° '.� , r�4:e ;�k apr"h k'- a b�V1�9ti�F A �f 1'14►Y►4ri A NI�WY • •i+w.w►wrr oiasr. z.:a=.._: _ � waisti Sergio Rodriguez, Director March 20, 1989 �. Planning Department Page Prepared by: Reviewed by: s: 1 E. Maxwell A. Quinn. nes, �sistant City Attorney Deputy C' y Attorney JEM/db/M158 cc:. Honorable. Mayor Xavier L. Suarez Honorable Commissioner Victor De Yurre Honorable Commissioner Miller J. Dawkins Honorable Commissioner Rosario Kennedy ,:,Honorable Commissioner J.L. Plummer Cesar Odio, City Manager. r Edith Puentes,.Director,Building and:.Zoning De.t. -,Zoning Joseph A. Genuardi, Zoning Administrator ., ;'Gloria Fox, Chief, Hearing aaoards Division. Aurelio Perez-Lugones,'Legislative Administrator 3_ (r 3 3 s � ,a _ 4 X Sorg t�� k T' r+��' KR 1 _ y >f 2X F t•(1L 1 .a '�,}•- 'rq�,airy�:�a � , � :r � °°`" i � �4t ' BPS ` § -'r c t: ,�s, �+.5�'�t F . S-" �yH, �,'�, ,� . � a � ',�'r•`�R' "'p,r*§� . �