HomeMy WebLinkAboutPZAB (6002) Resolution'ZON 011, 1,
City of Miami
PZAB Resolution
City Hall
3500 Pan American Drive
Miami, FL 33133
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Enactment Number: PZAB-R-19-028
www.miamigov.com
File ID: 6002 Final Action Date: 7/17/2019
A RESOLUTION OF THE MIAMI PLANNING, ZONING, AND APPEALS BOARD
("PZAB") FAILING TO RECOMMEND APPROVAL TO THE MIAMI CITY
COMMISSION, PURSUANT TO ARTICLE 7, SECTION 7.2.6(A) OF ORDINANCE NO.
13114, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS
AMENDED, ("MIAMI 21 CODE") TO ALLOW AN EXISTING LEGAL
NONCONFORMING ADULT ENTERTAINMENT USE TO OPERATE FOR AN
ADDITIONAL TWENTY -YEARS AFTER THE ADOPTION OF THE MIAMI 21 CODE,
ON A SITE LOCATED WITHIN THE "T6 -60A -O," URBAN CORE -OPEN, TRANSECT
ZONE FOR THE PROPERTY GENERALLY LOCATED AT 15 NORTHEAST 11
STREET AND 29 NORTHEAST 11 STREET, MIAMI, FLORIDA, AS MORE
PARTICULARLY DESCRIBED IN EXHIBIT "A"; MAKING FINDINGS; CONTAINING
A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, GR OPCO, LLC (the "Applicant") owns the properties located at
approximately 15 Northeast 11 Street and 29 Northeast 11 Street, as more particularly
described in Exhibit "A," attached and incorporated ("Property"); and
WHEREAS, the Applicant has applied for an Exception (File ID PZ -19-649) to extend the
initial 20 -year Time Limitation to operate an existing legal nonconforming Use, an Adult
Entertainment Use, through and including May 20, 2050; and
WHEREAS, the Property has a zoning designation of 76 -60A -O." Urban Core -Open,
Transect Zone and a Future Land Use Map ("FLUM") designation of General Commercial; and
WHEREAS, the site contains an existing legal nonconforming commercial structure (the
"Structure") consisting of approximately 15,997 square feet, originally permitted in the year of
2000; and
WHEREAS, the current Structure contains an Adult Entertainment Use known as Club
E11even on the ground floor and mezzanine, and a restaurant "The Rooftop" formally known as
Touche Tavern, on the rooftop; and
WHEREAS, the Adult Entertainment Use has continued to operate from the effective
date of Ordinance No. 13114, the Zoning Ordinance of the City of Miami, Florida, as amended
(the "Miami 21 Code") (May 20, 2010) to present, and currently expires on May 20, 2030; and
WHEREAS, the Applicant applied to extend the Time Limitation for the Adult
Entertainment Use for another twenty (20) years (May 20, 2050); and
WHEREAS, no expansion of the Use or Structure is proposed under this Exception
application; and
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WHEREAS, on May 18, 2001, the City of Miami ("City") Planning and Zoning
Department issued a Class II Special Permit #01-0123, to allow the operation of an Adult
Nightclub named Gold Rush located within the "Entertainment Specialty District" under the
11000 Zoning Ordinance; and
WHEREAS, in 2001, the City Building Department issued a Building Permit (BD#01-
5012635) to allow the construction of a Structure followed by a Certificate of Use (CU# 032546)
issued on August 19, 2003, to allow Gold Rush Adult Nightclub to operate within the Structure;
and
WHEREAS, on October 2004, the City approved Ordinance No. 11916, which imposed
certain limitations for specific Uses, such as Adult entertainment and, with the adoption of such
Ordinance, the Gold Rush Adult Nightclub became a legal nonconforming Use; and
WHEREAS, Miami -Dade County records show that, in 2013, the Applicant acquired the
Property operated by Gold Rush Nightclub and remodeled it to accommodate two (2) distinct
establishments: Touche Tavern (on the rooftop of the structure located at 15 Northeast 11
Street), and E11even Miami Adult Nightclub, (on the ground floor and mezzanine of 29
Northeast 11 Street); and
WHEREAS, on January 24, 2013, the City's Zoning Administrator issued a Zoning
Verification Letter ("ZVL"), allowing the continuance of the nonconforming Adult entertainment
Use for twenty (20) years from the effective date of the Miami 21 Code (May 20, 2010); and
WHEREAS, on November 9, 2013, the City's Planning Department approved Warrant
No.13-0058, with conditions, to allow an Alcohol Beverage Service Establishment within the
"Park West entertainment Specialty District" for the Property located at 29 Northeast 11 Street
for Ell even Miami Adult Nightclub; and
WHEREAS, on September 5, 2017, the Applicant applied for two (2) Exceptions and a
Waiver to the City's Planning Department whereby the Exceptions would allow for alterations
and expansion of the nonconforming use and structure by up to approximately 23%, adding
approximately 3,616 square feet to the original structure containing 15,997 square feet; and
WHEREAS, on May 16, 2018, the Planning, Zoning, and Appeals Board ("PZAB")
approved the Exceptions and Waiver, with conditions, pursuant to Article 7, Section 7.2.3(b)(1)
and Article 7, Section 7.2.6(c)(1)(b) of the Miami 21 Code through Resolution No. 18-023; and
WHEREAS, the Zoning Administrator advised that the Applicant could seek an additional
twenty (20) years with approval by the City Commission through May 20, 2050; and
WHEREAS, documents and plans provided by the Applicant show that there is no
increase of the square footage for the Use and, as such, no additional parking is required; and
WHEREAS, the plans and documents provided by the Applicant to allow the extension
of Time Limitation request are consistent with Article 7, Section 7.2.6 (a) of the Miami 21 Code;
and
WHEREAS, City Planning Department staff found the request to allow the Extension of
Time Limitation for the existing legal nonconforming Adult Entertainment Use, through and
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including May 20, 2050, consistent with the goals and objectives of the Miami Neighborhood
Comprehensive Plan ("MCNP"), as it continues to encourage a development pattern that
enhances existing neighborhoods, and promotes a balanced mix of Uses; and
WHEREAS, the City Planning Department staff further found that the proposed time
extension will keep promoting and enhancing the choices of entertainment venues within the
surrounding area while providing the necessary measures to bring the Property more into
compliance with the Miami 21 Code and safeguarding the neighborhood from any unpleasant
disturbances; and
WHEREAS, the Planning, Zoning, and Appeals Board ("PZAB") held a public hearing on
July 17, 2019 regarding the recommendation of the Exception to the Miami City Commission;
and
WHEREAS, the PZAB considered the goals, objectives, and policies of the Miami
Comprehensive Plan, the Miami 21 Code, and all other City regulations; and
WHEREAS, a motion was proffered to recommend to the Miami City Commission
approval of the request with the following conditions as further described in Section F of the City
Planning Department staff analysis, which failed by a vote of three (3) in favor and four (4)
against:
1. The use shall operate in substantial conformance with the plans as approved by
the Planning Zoning Appeals Board pursuant to Resolution #18-023 on May 16, 2018.
Nothing in this condition shall obligate the owner and or operator to expand the non-
conforming use and or structure as approved by the Board on May 16, 2018.
2. All other Uses, height and area regulations of the Municipal Code and all other
applicable government/regulatory agencies shall be strictly complied with in the
development and use of the property, except as such regulations are herein specifically
varied or required.
3. The Adult entertainment Use shall be operated at all times with due regard for
the character of the surrounding district, and the right is reserved to the Planning
Director to impose additional corrective Conditions, if, in the Director's opinion, such
Conditions are proven necessary for the protection of persons in the neighborhood or
occupants of adjacent property.
4. All graffiti on the site shall be removed or painted over to match the color of the
surface to which it is applied within 24 -hours of its occurrence.
5. Free water shall be provided to patrons of the Adult entertainment Use upon
customer's request.
6. A copy of this Exception including all Conditions, and/or any subsequent appeal
of this Exception and its resultant Conditions and/or letters of clarification shall be printed
on the building plans submitted to the Planning Department and the Building Department
for purposes of having a permit issued at any time during the term of this Exception. In
addition, a copy of this Exception including all conditions shall be posted on site and
visible and accessible to all employees.
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7. Applicant shall install and maintain security cameras that covers all common
areas of the business, high-risk areas, entrances and exits, and proof of security camera
installation shall be provided to the Planning Director or their Designee. The video
records shall be made available to law enforcement upon request.
8. The Applicant shall be responsible for monitoring both patron and employee
conduct on the premises and within the parking areas under the control of the
establishment to assure behavior that does not adversely affect or detract from the
quality of life for adjoining residents, property owners, and businesses.
9. The Applicant shall be responsible for maintaining free of debris or litter the area
adjacent to the premises over which they have control, including the sidewalk in front of
the establishment.
10. An electronic age verification device shall be retained on the premises available
for use during operational hours. This device shall be maintained in operational condition
and all employees manning the entrance for patrons to the establishment shall be
instructed in its use.
11. During the hours of operation, a minimum of one on -duty manager with authority
over the activities within the facility must always be on the premises when the facility is
open to the public. The on -duty manager's responsibilities shall include the monitoring of
the premises to ensure compliance with all applicable State laws, Municipal Code
requirements and the conditions imposed herein. Every effort shall be undertaken in
managing the facility to discourage illegal and criminal activity on the subject premises
and any exterior area over which the building owner exercises control, in effort to ensure
that no activities associated with such problems as narcotics sales, use or possession,
gambling, prostitution, loitering, theft, vandalism or truancy occur.
12. It shall be unlawful to play or operate music boxes, jukeboxes, radios, musical
instruments or any other musical devices on or about the premises between the hours of
11:00 p.m. and 7:00 a.m. the following day, unless said music devices are played or
operated within enclosed building and the sound is not audible form the outside of the
building so as to disturb the quiet, comfort or repose of persons in any dwelling, hotel or
other type of residence. The establishment shall make efforts to control any unnecessary
noise made by staff or any employees contracted by the establishment, or any noise
associated with the operation of the establishment.
13. Prior to the effectuation of this Exception, a covenant acknowledging and
agreeing to comply with all the terms and conditions established herein shall be
recorded in the Miami -Dade County Clerk of Courts. The agreement (standard master
covenant and agreement form) shall run with the land and shall be binding on any
subsequent owners, heirs or assigns. The agreement with the conditions attached must
be submitted to the Department of Planning and the Office of the City Attorney for
approval before being recorded. After recordation, a certified copy bearing the
Recorder's number and date shall be provided for inclusion in case file. Fees required
per City Code for Monitoring of Exception and Inspection and Field Compliance Review
of Operations shall be paid to the City prior to the final clearance of this condition.
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14. Failure to comply with the conditions herein shall result in the revocation of the
Permit.
15. INDEMNIFICATION AND REIMBURSEMENT OF LITIGATION COSTS.
Applicant shall do all the following:
a. Defend, indemnify and hold harmless the City from any and all actions against
the City relating to or arising out of, in whole or in part, the City's processing and
approval of this entitlement, including but not limited to, an action to attack, challenge,
set aside, void, or otherwise modify or annul the approval of the entitlement, the
environmental review of the entitlement, or the approval of subsequent permit decisions,
or to claim personal property damage, including from inverse condemnation or any other
constitutional claim.
b. Reimburse the City for all costs incurred in defense of an action related to or
arising out of, in whole or in part, the City's processing and approval of the entitlement,
including but not limited to payment of all court costs and attorney's fees, costs of any
judgments or awards against the City (including an award of attorney's fees), damages,
and/or settlement costs.
c. Submit an initial deposit for the City's litigation costs to the City within 10 days'
notice of the City tendering defense to the Applicant and requesting a deposit. The initial
deposit shall be in an amount set by the City Attorney's Office, in its sole discretion,
based on the nature and scope of action, but in no event, shall the initial deposit be less
than $15,000.00 dollars. The City's failure to notice or collect the deposit does not relieve
the Applicant from responsibility to reimburse the City.
d. Submit supplemental deposits upon notice by the City. Supplemental deposits
may be required in an increased amount from the initial deposit if found necessary by
the City to protect the City's interests. The City's failure to notice or collect the deposit
does not relieve the Applicant from responsibility to reimburse the City.
e. If the City determines it necessary to protect the City's interest, execute an
indemnity and reimbursement agreement with the City under terms consistent with the
requirements of this condition.
The City shall notify the applicant within a reasonable time of its receipt of any
action and the City shall cooperate in the defense. If the City fails to notify the applicant
of any claim, action, or proceeding in a reasonable time, or if the City fails to reasonably
cooperate in the defense, the applicant shall not thereafter be responsible to defend,
indemnify or hold harmless the City.
The City shall have the sole right to choose its counsel, including the City Attorney's
office or outside counsel. At its sole discretion, the City may participate at its own
expense in the defense of any action, but such participation shall not relieve the
applicant of any obligation imposed by this condition. In the event the Applicant fails to
comply with this condition, in whole or in part, the City may withdraw its defense of the
action, void its approval of the entitlement, or take any other action. The City retains the
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right to make all decisions with respect to its representations in any legal proceeding,
including its inherent right to abandon or settle litigation.
For purposes of this condition #15, the following definitions apply:
"City" shall be defined to include the City, its agents, officers, boards, commissions,
committees, employees, and volunteers.
"Action" shall be defined to include suits, proceedings (including those held under
alternative dispute resolution procedures), claims, or lawsuits. Actions include actions,
as defined herein, alleging failure to comply with any federal, state or local law.
Nothing in the definitions included in this paragraph are intended to limit the rights of
the City or the obligations of the Applicant otherwise created by this condition; and
WHEREAS, pursuant to Article 7, Section 7.1.1.4(d)(4) of the Miami 21 Code a super
majority is required for approval of an Exception; and
WHEREAS, the PZAB motion to approve with conditions as proffered during the public
hearing failed with three in support and four against (3-4); and
WHEREAS, the PZAB finds that the application fails to comply with all applicable
regulations; and
WHEREAS, after due notice and an opportunity to be heard has been afforded to all
parties and members of the public, there is competent substantial evidence in the record to
recommend denial the Exception; and
WHEREAS, as such, the PZAB failed to recommend approval to the Miami City
Commission of the Exception to allow the legal nonconforming Use to operate an additional
twenty (20) years until May 2050;
NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING, ZONING AND APPEALS
BOARD OF THE CITY OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble of this Resolution are
adopted by reference and incorporated as if fully set forth in this Section.
Section 2. The Planning, Zoning, and Appeals Board ("PZAB") failed to recommend
approval to the Miami City Commission of the Exception requested pursuant to Article 7,
Section 7.2.6 (a); Article 7, Section 7.1.2.6; and Article 4, Table 3 of the Miami 21 Code.
Section 3. If any section, part of a section, paragraph, clause, phrase, or word of
this Resolution is declared invalid, the remaining provisions of this Resolution shall not be
affected.
Section 4. This Resolution shall have an immediate effective date.
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ANk Francisco Garcia, Director Execution Date
Department of Planning
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
Personally appeared before me, the undersigned authorityf (X ca U --of , Clerk of the Planning, Zoning and Appeals Board of
the City of Miami, Florida, and acknowledges that s/he executed the foregoing Resolution.
SWORN AND SUBSCRIBED BEFORE ME THIS 20"
DAY OF P,09V`5 201 -
St\v\ G. Gun2ate Z ::;
Print Notary Name / LNotAry P lic State of Florida
Personally know v or Produced I.D. My Commission Expires:
Type and number of I.D. produced
Did take an oath or Did not take an oath
SILVIAGONZALEZ
MY COMMISSION # GG 051561
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EXPIRES: November 30, 2020
'ti oFFL� Bonded Thru Notary Public Underwriters
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