HomeMy WebLinkAboutLegislationFile Number: 08-01394a
Final Action Date:
AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 55
OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED
"SUBDIVISION REGULATIONS," MORE PARTICULARLY BY AMENDING
SECTION 55-14 ENTITLED "ENCROACHMENTS ON OR IN RIGHTS-OF-WAY,
PUBLIC EASEMENTS, PRIVATE EASEMENTS OR EMERGENCY ACCESS
EASEMENTS; EXCEPTIONS," TO UPDATE THE REFERENCE TO THE FLORIDA
BUILDING CODE; TO PERMIT AN ENCROACHMENT OF A PEDESTRIAN OR
VEHICULAR OVERPASS/UNDERPASS, SUBJECT TO CITY COMMISSION
APPROVAL BY RESOLUTION, BELOW THE RIGHT-OF-WAY, PUBLIC
EASEMENT OR EMERGENCY ACCESS EASEMENT AREA; TO REQUIRE THE
OWNER TO PAY A USER FEE RELATED TO THE GRANTING OF PERMISSION
BY THE CITY COMMISSION FOR THE ENCROACHMENT OF A PEDESTRIAN OR
VEHICULAR OVERPASS ABOVE OR UNDERPASS BELOW SAID
RIGHT-OF-WAY, PUBLIC EASEMENT OR EMERGENCY ACCESS EASEMENT
AREA; TO REQUIRE A COVENANT TO RUN WITH THE LAND AS A CONDITION
FOR GRANTING PERMISSION FOR SAID ENCROACHMENT; TO PROVIDE
THAT DELINQUENT COSTS OF RESTORATION AND SIMILAR COSTS SHALL
CONSTITUTE A SPECIAL ASSESSMENT LIEN ON THE OWNER'S ABUTTING
PRIVATE PROPERTY; PROVIDING A GOVERNMENTAL EXEMPTION;
CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the former South Florida Building Code has been replaced with the state-wide building
code entitled Florida Building Code; and
WHEREAS, the Florida Building Code authorizes local government having jurisdiction to allow and
regulate the encroachment of enclosed space above and below a right-of-way; and
WHEREAS, the Code of the City of Miami, Florida, as amended ("City Code"), permits an
encroachment of a pedestrian or vehicular overpass, subject to City Commission approval by
resolution, above a right-of-way, public easement or emergency access easement area; and
WHEREAS, to ensure the proper regulation of an encroachment below a right-of-way, public
easement or emergency access easement area, it is necessary to include a pedestrian or vehicular
underpass in the items that may be considered by the City Commission; and
WHEREAS, in order for the City Commission to evaluate the request for an encroachment of a
pedestrian or vehicular overpass above or underpass below a right-of-way, public easement or
emergency access easement area, an applicant is required to submit a user fee for the value of the
public benefit that is commensurate with the financial benefits that accrue to the property owner; and
WHEREAS, the Miami City Commission, after careful consideration of this matter, deems it
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Ordinance
File Number: 08-01394a
Final Action Date:
AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 55
OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED
"SUBDIVISION REGULATIONS," MORE PARTICULARLY BY AMENDING
SECTION 55-14 ENTITLED "ENCROACHMENTS ON OR IN RIGHTS-OF-WAY,
PUBLIC EASEMENTS, PRIVATE EASEMENTS OR EMERGENCY ACCESS
EASEMENTS; EXCEPTIONS," TO UPDATE THE REFERENCE TO THE FLORIDA
BUILDING CODE; TO PERMIT AN ENCROACHMENT OF A PEDESTRIAN OR
VEHICULAR OVERPASS/UNDERPASS, SUBJECT TO CITY COMMISSION
APPROVAL BY RESOLUTION, BELOW THE RIGHT-OF-WAY, PUBLIC
EASEMENT OR EMERGENCY ACCESS EASEMENT AREA; TO REQUIRE THE
OWNER TO PAY A USER FEE RELATED TO THE GRANTING OF PERMISSION
BY THE CITY COMMISSION FOR THE ENCROACHMENT OF A PEDESTRIAN OR
VEHICULAR OVERPASS ABOVE OR UNDERPASS BELOW SAID
RIGHT-OF-WAY, PUBLIC EASEMENT OR EMERGENCY ACCESS EASEMENT
AREA; TO REQUIRE A COVENANT TO RUN WITH THE LAND AS A CONDITION
FOR GRANTING PERMISSION FOR SAID ENCROACHMENT; TO PROVIDE
THAT DELINQUENT COSTS OF RESTORATION AND SIMILAR COSTS SHALL
CONSTITUTE A SPECIAL ASSESSMENT LIEN ON THE OWNER'S ABUTTING
PRIVATE PROPERTY; PROVIDING A GOVERNMENTAL EXEMPTION;
CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the former South Florida Building Code has been replaced with the state-wide building
code entitled Florida Building Code; and
WHEREAS, the Florida Building Code authorizes local government having jurisdiction to allow and
regulate the encroachment of enclosed space above and below a right-of-way; and
WHEREAS, the Code of the City of Miami, Florida, as amended ("City Code"), permits an
encroachment of a pedestrian or vehicular overpass, subject to City Commission approval by
resolution, above a right-of-way, public easement or emergency access easement area; and
WHEREAS, to ensure the proper regulation of an encroachment below a right-of-way, public
easement or emergency access easement area, it is necessary to include a pedestrian or vehicular
underpass in the items that may be considered by the City Commission; and
WHEREAS, in order for the City Commission to evaluate the request for an encroachment of a
pedestrian or vehicular overpass above or underpass below a right-of-way, public easement or
emergency access easement area, an applicant is required to submit a user fee for the value of the
public benefit that is commensurate with the financial benefits that accrue to the property owner; and
WHEREAS, the Miami City Commission, after careful consideration of this matter, deems it
City of Miami Page 1 of 4 Printed On: 2/3/2009
File Number: 08-01394a
advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to
amend the City Code to update the regulations for the installation of pedestrian or vehicular
overpasses or underpasses;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted by
reference and incorporated as if fully set forth in this Section.
Section 2. Chapter 55/Section 55-14 of the City Code, as amended, entitled "Subdivision
Regulations/Encroachments on or in rights-of-way, public easements, private easements or
emergency access easements; exceptions," is amended in the following particulars: {1}
"CHAPTER 55
SUBDIVISION REGULATIONS
Sec. 55-14. Encroachments on or in rights-of-way, public easements, private easements or
emergency access easements; exceptions
(a) No building or any other type of structure shall be permitted on or in any right-of-way, public
easement or emergency access easement, except required or approved utility installations, or as may
be permitted under the South Florida Building Code or chapter 54 of the Code of the city; however,
tThe city commission, by resolution, may permit an encroachment which does not unduly restrict
use of the right-of-way, public easement or emergency access easement area where such
encroachment is a necessary essential element in the construction of an otherwise authorized
pedestrian and/or vehicular overpass above or underpass below said right-of-way, public easement or
emergency access easement areal subject to payment of a one time user fee in accordance with
subsection (c) hereinbelow and to the recording of a covenant to run with the land executed by the
property owner in accordance with subsection (d) hereinbelow, with the payment by the owner of the
requisite user fee including, but not limited to, the preparation and recording of said covenant.
(c) Calculation of user fee. The user fee shall be calculated as follows:
(1) Property owner must obtain a certified appraisal for the land value of the two properties from a
certified general appraiser approved by the City. The land value per square foot of building shall be
determined by dividing the total market value of the land comprising the entire project site by the
maximum amount of building square footage that can be constructed by right as permitted by the
applicable City Zoning Ordinance(s).
(2) The estimated value of the aerial or subterranean rights shall be determined by multiplying the land
value per square foot of building determined in (c)(1) above, by the total square footage of the
proposed passageway(s) including multiple levels.
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File Number.- 08-01394a
(d) Covenant to run with the land. The covenant to run with the land (covenant) shall be in a form
acceptable to the City Attorney. The provisions of the covenant shall include but not be limited to:
(1) Maintenance of the overpass or underpass by the property owner in accordance with the Florida
Building Code and the Charter and Code of the city.
(2) Restoration or removal of the encroachment by the property owner within 30 days of written
notification by the director of the department of public works to properly maintain, restore, or remove
the overpass or underpass, as applicable.
(3) In the event of failure of the property owner to restore, maintain or remove the overpass or
underpass, when notified, the City Manager may contract for the restoration or removal of the
overpass or underpass, and place a special assessment lien against the owner's abutting private
property for the unpaid cost of the restoration or removal. These unpaid costs and expenses incurred
by the City or its agents shall constitute, and are hereby imposed as, special assessment liens against
the abutting private real property of the owner, and until fully paid and discharged, or barred by law,
shall remain liens equal in rank and dignity with liens of city and county ad valorem taxes and superior
in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property
involved. Such fees shall become delinquent if not fully paid within 60 days after their due date. The
total outstanding balance of delinquent fees and related charges shall bear an interest charge of one
percent per month, on any and all of the outstanding balance of the fees due, and if not fully paid with
all accrued interest by the due date will continue to accrue interest at the rate of one percent per
month. Unpaid and delinquent fees, together with accrued interest, shall remain and constitute special
assessment liens against the private property owner's abutting real property involved which is deriving
a benefit under this Chapter. Such special assessment liens for the repair, maintenance, removal or
restoration costs and interest and costs thereon may be enforced by any of the methods provided in
F.S. Ch. 85, or in the alternative, foreclosure proceedings may be instituted and prosecuted under the
provisions of F.S. Ch. 173, or the collection and enforcement of payment thereof may be
accomplished by any other method authorized by law. The owner shall pay all costs of collection,
including reasonable attorney fees, court costs, and abstracting and related lien expenses imposed by
this chapter.
(4) Provision of an insurance policy, in an amount determined by the city's risk manager, naming the
city as an additional insured for public liability and property damage. This insurance shall be in effect
as long as the encroachment exists in the right-of-way, public easement or emergency access
easement. If the property owner fails to continue to provide the insurance coverage, the city shall
have the right to secure a similar insurance policv in its name and place a special assessment lien
against the owner's abutting private property as set forth above in Sec. 55-14(c)(3), for the total cost of
the premium.
(5) The property owner shall hold harmless and indemnify the city, its officials and employees from any
claims for damage or loss to property and injury to persons of any nature whatsoever arising out of the
use, construction, maintenance or removal of the overpass or underpass and from and against any
claims which may arise out of the granting of permission for the encroachment or any activity
performed under the terms of the covenant.
s e t The city manager or designee may permit an encroachment into a private easement, where
said encroachment is not a safety hazard, subject to receipt by the city of written consent of the
holder(s) of the private easement(s), written releases from all benefited specified individuals or public
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File Number.' 08-01394a
or private entities, or a certification that no such benefited individuals or public or private entities exist
within the easement, recommendations of approval from the departments of police, public works,
fire -rescue, general services administration, planning, building and zoning, and an executed hold
harmless and indemnification agreement for the benefit of the city in a form acceptable to the city
attorney, with the herein exceptions being subject to compliance with all other requirements of law.
(f} The user fee required under this section shall not apply to governmental entities and agencies,
including state, county and city departments or instrumentalities that are exempted from payment of
this user fee.
*1
Section 3. If any section, part of section, paragraph, clause, phrase or word of this Ordinance
is declared invalid, the remaining provisions of this Ordinance shall not be affected.
Section 4. This Ordinance shall become effective immediately upon its adoption and signature
of the Mayor. {2}
APPROVED AS TO FORM AND CORRECTNESS: e`
f
JULIE O. BRUT
CITY ATTORNEY
Footnotes:
{1 } Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be
added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted
and unchanged material.
{2} If the Mayor does not sign this Ordinance, it shall become effective at the end of ten calendar days
from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective
immediately upon override of the veto by the City Commission.
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