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OFFICE OF THE CITY ATTORNEY G 1 n P� 2: 59
MEMORANDUM 7.
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TO: Honorable Mayor and Members of the City pis`§idi ' LLI
FROM: Julie O. Bru, City Attorney U
DATE: June 10, 2009
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RE: The Vizcayans, Inc., et al - Mercy Hospital DOAH Matter co m w
FR 4 on the June 11, 2009, City Commission Agenda — Proposed —"
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Ordinance rescinding Ordinance 12911 d— ----
Matter ID No.: 07-1124
Item FR 4 on the June 11, 2009 agenda presented for your consideration by
Commissioner Sarnoff seeks to rescind Ordinance 12911, and "implement" the Final
Order of the Administration Commission dated March 27, 2009. The title of the
proposed Ordinance states:
AN ORDINANCE OF THE MIAMI CITY COMMISSION IMPLEMENTING
THE FINAL ORDER OF THE STATE OF FLORIDA GOVERNOR AND
CABINET SITTING AS THE ADMINISTRATION COMMISSION
ENTERED IN THE VIZCAYANS, INC. ET AL. VS THE CITY OF MIAMI
AND TRG-MH VENTURE, LTD., AC CASE NO. ACC-08-004, DOAH
CASE NOS. 07-2498 GM AND 07-2499 GM, DATED MARCH 31, 2009;
RESCINDING ORDINANCE NO. 12911 ADOPTED BY THE CITY
COMMISSION OF THE CITY OF MIAMI; CONTAINING A
SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE
DATE.
In my opinion the FLUM amendment adopted by Ordinance 12911, failed as a
matter of law and there is no further City Commission action legally required at this time.
Moreover, the Administration Commission's Final Order has been timely implemented
by ministerial acts of the City Clerk and the Planning Depaitiuent and such remedial
measures have been reported to the Administration Commission.
Background
On April 26, 2007, the City of Miami adopted a comprehensive plan amendment
(Ordinance 12911) which changed the future land use designation on the City's FLUM
on a 6.72-acre parcel of land from Major Institutional, Public Facilities, Transportation,
and Utilities (Major Institutional) to High Density Multifamily Residential (H/D
Residential). The parcel is located at approximately 3663 South Bayshore Drive in
Coconut Grove. The amendment was adopted under the procedure for small-scale
FLUM amendments described in Section 163.3187, Florida Statutes. Ordinance 12911
00& '- Subv,tla.1- mev>-w - C;ty PtforvIcj
Honorable Mayor and Members e City Commission
Re: Vizcayans, Inc., et al. v. Mercy Hospital DOAH Matter
June 10, 2009
Page 2 of 3
was challenged as not being "in compliance" with Chapter 163, Florida Statutes (2007).
Following the consolidation of two (2) separate administrative challenges, the discovery
stage, and a final hearing before the Administrative Law Judge (ALJ) in January 2008 in
Miami -Dade, in July 2008, the ALJ issued a recommended order finding Ordinance
12911 not in compliance. Subsequently, on March 27, 2009, the Administration
Commission issued the Final Order determining that the FLUM amendment adopted by
Ordinance 12911was not in compliance. No appeals were taken by any party.
Legal Analysis
Ordinance 12911 does not have any force or legally binding effect at this time and
therefore no further action on the part of this commission is necessary to "rescind"
Ordinance 12911. Section 7 of Ordinance 12911 states:
This Ordinance shall become effective thirty-one (31) days after second
reading and adoption thereof pursuant and subject to §163.3187(3)(c),
Fla. Stat.
Fla. Stat. §163.3187(3) (c), provides:
(c) Small scale development amendments shall not become effective until
31 days after adoption. If challenged within 30 days after adoption, small
scale development amendments shall not become effective until the state
land planning agency or the Administration Commission, respectively,
issues a final order determining the adopted small scale development
amendment is in compliance.
Thus, because the FLUM amendment adopted by Ordinance 12911 was
challenged, by its very terms the effective date of the Ordinance was dependent on a
determination of compliance by the Administration Commission. This did not occur.
The Administration Commission's Final Order No. AC-09-002 (the Final Order) states:
Upon review of the record, the Recommended Order and the Supplement,
and after considering the parties' exceptions thereto, the Commission
further determines that the FLUM Amendment adopted by City of Miami
Ordinance 12911 is "not in compliance" with the MCNP as referenced in
Fla. Stat. ,¢ 163.3184(1)(b).
Accordingly, because there was no direction by the City Commission authorizing
the City Attorney to seek judicial review of the challenges to this development, the only
action required was ministerial. We instructed the City Clerk to reflect this action in the
public records of the City of Miami including the legistar system, which is the City's
record management system for legislation. A copy of the public record showing that
Submitted Into the publki
record jp connection with
item Fill "t on 6-1 I -Oq
Priscilla A. Thompson
City Clerk
Honorable Mayor and Members e City Commission
Re: Vizcayans, Inc., et al. v. Mercy Hospital DOAH Matter
June 10, 2009
Page 3 of 3
Ordinance 12911 was rescinded by Final Order No. AC-09-002 issued by the State of
Florida Administration Commission as it appears in the legistar system is attached.
Additionally, the planning department, pursuant to the Final Order, changed the
FLUM for this property to its former designation of Major Institutional. The foregoing
actions were reported by the Office of the City Attorney to the Administration
Commission on May 1, 2009.
In conclusion for the reasons stated above, the proposed FLUM amendment failed
as a matter of law and there is no further City Commission action legally required at this
time. Moreover, the Administration Commission's Final Order has been fully
implemented by the City Clerk and the Planning Department.
Attachment
cc: Priscilla A. Thompson, City Clerk w/attach.
Ana Gelabert-Sanchez, Director of Planning Dept. w/attach.
Submitted Into the public
record yl connection with
item R (t on (t--I I- Ott
Priscilla A. Thompson
City Clerk
City of Miami
Legislation
Ordinance: 12911
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 06-010601u
Final Action Date: 4/26/2007
(RESCINDED ON MARCH 27, 2009 BY FINAL ORDER NO. AC-09-002 ISSUED BY STATE
OF FLORIDA ADMINISTRATIVE COMMISSION.)
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AMENDING ORDINANCE NO. 10544, AS AMENDED, THE FUTURE LAND USE
MAP OF THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN BY CHANGING
THE LAND USE DESIGNATION OF THE PROPERTY LOCATED AT
APPROXIMATELY 3663 SOUTH MIAMI AVENUE, MIAMI, FLORIDA, FROM
"MAJOR INSTITUTIONAL, PUBLIC FACILITIES, TRANSPORTATION AND
UTILITIES" TO "HIGH DENSITY MULTIFAMILY RESIDENTIAL"; MAKING
FINDINGS; DIRECTING TRANSMITTALS TO AFFECTED AGENCIES;
CONTAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Miami Planning Advisory Board, at its meeting held on September 20, 2006 Item
No. 1, following an advertised public hearing, adopted Resolution No. PAB 06-080 by a vote of three to
three (3-3), which operates as a recommendation of DENIAL of an amendment to Ordinance No.
10544, as amended.
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. The Future Land Use Map of Ordinance No. 10544, as amended, the Miami
Comprehensive Neighborhood Plan is hereby amended by changing the land use designation from
"Major Institutional, Public Facilties, Transportation and Utilities" to "High Density Multifamily
Residential" for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more
particularly described in "Exhibit A" attached and incorporated.
Section 3. It is found that this Comprehensive Plan designation change:
a) is necessary due to changed or changing conditions;
b) involves a residential land use of 10 acres or less and a density of less than 10 units per acre or
involves other land use categories, singularly or in combination with residential use, of 10 acres or Tess
and does not, in combination with other changes during the last year, produce a cumulative effect of
having changed more than 60 acres through the use of "Small Scale development" procedures;
City of Miami Page 1 of 2 Printed On: 6/10/2009
File Number. 06-010601u
Enactment Number: 12911
c) is one which involves property that has not been the specific subject of a Comprehensive Plan
change within the prior twelve months;
d) is one which does not involve the same owners property within 200 feet of property that has
been granted a Comprehensive Plan change within the prior twelve months; the proposed amendment
does not involve a text change to goals, policies, and objectives of the local government's
comprehensive plan, but proposes a land use change to the future land use map for a site -specific
development; and
e) is one which is not located within an area of critical state concern.
Section 4. The City Manager is directed to instruct the Director of the Planning Department to
immediately transmit a certified copy of this Ordinance after its adoption on second reading to: the
Secretary, Florida Department of Community Affairs; the Executive Director, South Florida Regional
Planning Council, Hollywood, Florida; the Executive Director, South Florida Water Management
District, West Palm Beach, Florida; the Secretary, Department of Transportation, Tallahassee, Florida;
and the Executive Director, Department of Environmental Protection, Tallahassee, Florida.
Section 5. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with
the provisions of this Ordinance are repealed.
Section 6. 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 7. This Ordinance shall become effective thirty-one (31) days after second reading and
adoption thereof pursuant and subject to §163.3187(3)(c), Fla. Stat. (2005). {1}
Footnotes:
{1} This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten
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 or upon the effective date
stated herein, whichever is later.
Submitted Into the public
record in connection with
item FR 4 on to -II - Oq
Priscilla A. Thompson
City Clerk
City of Miami Page 2 of 2 Printed On: 6/10/2009