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HomeMy WebLinkAboutR-87-0300J-87-271(a) 3/12/87 RESOLUTION NO.87' 30Q1 A RESOLUTION AFFIRMING THE DECISION OF THE ZONING BOARD, THUS UPHOLDING THE ZONING ADMINISTRATOR'S DECISION DATED JANUARY 9, 1987 THAT A VARIANCE FROM THE DISTANCE REQUIREMENT BETWEEN COMMUNITY BASED RESIDENTIAL FACILITIES (CBRF) AS SET FORTH IN SUBSECTION 2034.2.2.1-2 OF ORDINANCE NO. 9500 THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA IS NOT PERMITTED PURSUANT TO SECTIONS 3101 AND SUBSECTION 3101.1 OF ORDINANCE NO. 9500. WHEREAS, the Miami Zoning Board at its regular meeting of February 23, 1987, Item No. 4, following an advertised hearing, adopted Resolution ZB 21-87 by a 6 to 3 vote, upholding the Zoning Interpretation Number ZI-87-1 rendered by the Zoning Administrator on January 9, 1987 as hereinafter set forth; and WHEREAS, the applicant for a Community Based Residential Facility (CBRF) has taken an appeal to the City Commission from the Zoning Board's affirmation of the Zoning Administrator's decision; and WHEREAS, the City Commission, after careful consideration of this matter finds no basis for reversing the Zoning Board's decision and agrees with the Zoning Administrator's Interpretation as set forth in ZI-87-1; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The decision of the Miami Zoning Board to uphold Zoning Interpretation Number ZI-87-1 rendered by the Zoning Administrator on January 9, 1987, which provides that a variance from the distance requirement between Community Based Residential Facilities (CBRF) as set forth in subsection 2034.2.2.1-2 of Ordinance No. 9500, the Zoning Ordinance of the City of Miami, CITY COMMISSION METING OF MAR al MAT LEKOKS: �� ,,-IN A _`, Florida is not permitted pursuant to Section 3101 and subsection 2101.1 of Ordinance No. 9500, is hereby affirmed. PASSED AND ADOPTED this 31st day of March ,1987. AT T T - NATTY HIRAI XAVIER L. SUAREZ AYOR CITY CLERK PREPARED AND APPROVED BY: &aj/'tQtA- -- G. MIRIAM MAER ASSISTANT CITY ATTORNEY GMM/rcl/M362 APPROVED,XS TO FORM AND CORRECT SS;' LUGAA A._ DOUG CITY ATTORNEY 97-30011 PZ• 2 APPEAL OF ZONING INTERPRETATION ZI-87-1 Dated: January 16, 1987 APPELLANT/APPLICANT Robert M. Brake, Esq. 1830 Ponce Oe Leon Blvd. Coral Gables, FL Phone # 444-1694 REQUEST Appeal by an aggrieved party of the Zoning Administrator's Interpretation No. ZI-87-1, "Variance from distance requirement for CBRF (Community Based Residential Facility) 3838 N Bayshore Drive. RECOMMENDATIONS ZONING HISTORY Mrs. Ruth Boyd applied for a CBRF at 3838 N. Sayshore Drive. Her application was denied because the premise did . not meet the distance separation, in that it was closer than 1825 feet from an existing CBRF according to subsection 2034.2.2.1-2 of the Zoning Ordinance. tors. Boyd and her attorney Robert M. Brake inquired whether a variance could be obtained for the distance required. They were informed by Zoning personnel that a variance was not permitted. Mr. Brake requested an official interpretation from the Zoning Administrator (see attached) and is now appealing that interpretation which states that a variance is not permitted. PUBLIC WORKS No comment. DADE COUNTY PUBLIC WORKS No comment. ZONING BOARD At its meeting of February 23, 1987 the Zoning Board adopted Resolution ZB 21-87, by a 6 to 3 vote, upholding the decision of the Zoning Administrator. APPEAL By letter dated March 10, 1987, Mr. Robert M. Brake appealed the Zoning Board's decision. El 63 MEL ALEur A '° TRACT 'A" s� tt y� •, • 16 12 rr �► �e Is ,. 13 9 - 7 JEWISH 10 FEDERATION t 3 4 s TRACT TRACT "A" • s7 Q SA9AL' a ,• �,; s , � VACCA Sue • / ��, TRACT W t I o i3 w 14 tie AV O •Vb W Q� o 1� 14 i 5 1 17 19 19 V� A N PG Z � I 0 S 39 T. ii To goo 2.5i 4i s6 a s V 52 SI # = !0 9 Q 1/ 57 56 9 46 5� 5 50 4- ° . R ` cn 1 6 �' 41 4 4s 44 45 46 47: 166 sozosT tI N. 36 i 6 i 70 1 2S !4 : I 1's� 30 28 26 N STEARNS ii N M // • " /1 0 1 ' i0 17 16 i0 25 3 s 7 S it 2 i g 0. .�. PARK �. 450 N� �•� V ss 480 r W . NE . i`O4; 00 174 Ito c 5 T io _• 3 4. 4j 7 • w; T O o Q �' . it s 2 a 3 h 'I' 1 i W 1 2, f ss se so so s = so so so •• 2 ST p5 15-21 36TH STREET @AYF z6 2/23/a� Q_169 Q-18 Item # 4 8'7-3001. Z c 3838 N Bayshore Drive �,,, 0 ;1 M, J -n. 4. W, L s AS15-21 ZB 2/23/8 &7-30cQ-16 ..__:Ajg,poRr EXPWYI-. m.. - Q--18 -Aft item # 4 {SF 3838 N Bayshore Drive 0 CILCtN MURPHY GRAKC PL! ROBERT M. BRAKE ATTOPI�ItY pT LAW' � ' ' �1 lase Pam= of LOW n0ULLV^X0 • ` CORAL OABL68, FLORIOA 444.1404 March 10, 1997 Building and Zoning Department ATTN: Gloria Fox 275 N.W. 2nd Street Miami, Florida 33232 RE: Interpretation letter concerning right to apply for variance Dear Sir, This letter is to request a hearing before the City of Miami City Commission td appeal the decision of the Zoning Board for the City of Miami, affirming the interpretation of Mr. Joseph A. Genuardi, as per the attached letter dated January 9, 1987, regarding the right to file an application for a CBRF use, including an application for a variance, waiver or exception from the distance requirement for said use. Ve WRobertquire cc: Aurelio Perez-lugones, Scheduling Clerk 87: 300.� J^ r] rir.:: j . Y ROBERT M. BRA JE ATTORNEY AT LAW ��f `► 16 P 1 '22 logo roMC6 Os LOOM §OYL<VA" CORAL CABLES. RLORIOA EILEEN MURPHY •RAKE •�4.1�04 January 16, 1987 Director Planning and Zoning Boards Administration City of Miami, 275 N.W. 2nd Street Miami, Florida 3128 RE: Interpretation letter concerning right to apply for variance ® Dear Sir, This letter is to request a hearing before the City of Miami Zoning Board to appeal the interpretation to Mr. Joseph A. Genuardi, as per the attached letter dated January 9, 1937, regarding the right to file an application for a variance from the distance requirement for CBRF use. AVeryt yours, Brake, Esquire r� No. 87. 300t .. It • S. Z . J L. Robert A. Brake Attorney at Law 1830 Ponce De Leon Boulevard Coral Gables, Florida Subj ect : it 0 : Dear Mr. Brake: January 9, 1987 Variance from distance requirement for CBRF from -Subsection 2034.2.2.1-2 and section 3101 71-87-1 As Zoning Administrator of the City of Miami, I do hereby make the following interpretation on whether .1 request' for a variance for► the distance requirement between Community Based Residential Facility as indicated under subsection 2034.2.2.1-2 is permitted by the City of Miami Zoning Ordinalice No 9500, as amended, in response to your request dated November 11, 1986. Subsection 2034.2.2.1-2. states: "A proposed community based residential facility shall not be located within a .radius of eighteen hundred twenty-five (1825) feet of an existing community based residential facility". The last sentence of the first paragraph of Sec 3101 varianece defined; limitations. Stale : "As used in this ordinance, a variance is authorized only for height, area, size of structure, dimensions of yards and other open spaces and off-street parking or loading requirements". Further, subsection 3101.1 states: "Under no circumstances shall the zoning board grant a variance to permit a floor area ratio or a use not permitted under the terms of this zoning ordinance in the zoning district involved, or any use expressly or by implication prohibited by the terms of this zoning ordinance in the said zoning district." The property in question at 3838 N. Bayshore Dr. is zoned RG-2 General Resldential. Under the column for Principal Uses and Structures of the Schedule of District Regulations Page 2 of 6, No 4 of Permissible only by Special Permit, Community based residential facilities is listed as permissible only by special exception subject to the requirements of section 2034. 87-300 . 6 0 11 0 Mr. Robert M. Brake Attorney at Lac.* Variance for CBRF Subsection 2034.2.2.1-2 Page 2 C Therefor, the use is permissible only subject to the requirements of section 2034 which in effect sets up areas which this use is permissible, one within Z radius of 1825 ft. A variance from this distance would in fact be a use variance in that it would permit a use in an area that prohibits that use. This would be in violation of subsection 3101.1 which prohibits granting of use variances. Also, sect iori 3101 limits variances only to ones forr height, area, .size of structure, dimensions of yards and other open- soa.es and off-street parki.nn or loading requirement. Zt does not list variance for distance between uses. - In conclusion my interpretation is that the Zoning Ordinance 9500, as amended, Prohibits the granting of a variance for use and that your request would be to establish a use in an area which does nut permit such a use and therefor you do not have the right to apply for sucli a variance. This interpretation may he appealed to the 'toning Board by any aggrieved persoct or any officer, department, board or agency of the City of Miami (Article 30, City of fiiami Zoning Ordinance). J0ery truly yours, • (. se 1 A. Genuardi P.E. nin)k Administrator JAG/lc cc: Walter Pierce, Assistant City Manager Sergio Rodriguez, Director Planning Department Lucia Dougherty, City Attorney Juar. Gonzalez, Chief Zoning Inspector Gloria Fox Zoning file 87-aoa. ? •.M n ROBERT M. .B}��RA"KE GCRAL GA/Lai. PUCRIOA i11.99N MURPHY BRAKU 444M1404 November 11, 1986 Mr. Joseph Genuardi P E Assistant Director and Zoning Administrator City of Miami 275 N.W. 2nd Street P.O. Box 330708 Miami, Florida 33233-0708 RE: 3838 N. Bayshore Drive, Miami, Florida 33137 Application for use as Community Based Residential Facility. Dear Mr. Genuardi, In accordance with our conference Friday, November 7, 1986, I submit the following information on the above property: 1. My client Boyd Associates Inc., wishes to use the property for a Community Based Residential Facility. It had previously been used for this purpose until May 319 1981, when it was leased to tenants who did not need this permit and allowed it to lapse. 2. I am advised that the property is approximately 1,374 feet from a similar facility at 435 N.E. 34th Street. Ordinance 9500, Section 2034.2.21 (2) (location standards) requires 1,825 foot distance between such facilities. 3. On April 18, 1986 I presented an application to the city for a special exception to allow this use for this property, including a request for awaiver of the distance limitations to the city. I was advised that it was the policy of the city to, refuse even to receive an application for a waiver of the distance requirement. 4. Based upon my opinion that the refusal to accept an application is a violation of Article 19 Section 5 of the Constitution of the State of Florida, which gives the people the right to petition for regress of grievances, and a violation of the like provision in the First Amendment to the Constitution of the United States, I filed a civil action to compel the City to accept the application and to allow said use. 5. At a hearing before the Honorable Thomas Scott, United 5 87-300► . States District Judge, AssA1adV?2ty<1U§orney Maria J. Chiaro represented to the Court that the question of whether or not an application for special exception to the distance requirement could be submitted under the zoning code was a question for your interpretation rather than'that of the desk personnel. Based upon said representation the Court dismissed the case without pre- judice to the right to refile it should it become necessary to do so in the future. Based upon the above, request is hereby made for an interpre- tation of the zoning ordinance as to whether it allows a citizen to file a petition for a waiver of a requirement of the zoning ordinance, which in this case is the distance requirement between Community Based Residential Facilities. It goes without saying that the right to file a request for a waiver or variance does not carry with it any implication as to whether the request will or will not be granted. I am furnishing a copy of this letter to Ms. Chiaro should you wish to confer with her about it. Thanking you for your courtesy and attention to the above, I am Very my yours, Robert M. Brake; squire cc: Ms. Chiaro Mrs. Boyd 17 137-300# . 7 Mrs.' Elba Morales offered the following Resolution and moved its adoption. RESOLUTION ZB 21-87 RESOLUTION TO UPHOLD THE DECISION OF THE ZONING ADMINISTRATOR'S INTEREPRTATION NO. ZI- 87-1, REGARDING "VARIANCE FROM DISTANCE REQUIREMENT FOR CBRF (COMMUNITY BASED RESIDENTIAL FACILITY)." Upon being seconded by Mr. Arsenio Milian, the motion was passed and adopted by the following vote: AYES: Ms. Basila and Morales Messrs. Gort, Mayor, Milian and Romero NAYES : Messrs. Sands, Barket and Luac es ABSENT: Messrs. Moran-Ribeaux Nis. Fox: Motion carries 6 to 3. February 23, 19870 Item # ¢ a Zoning Board 87-3001. • "