97-21 ORDINANCE NO. 97-21
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
ADOPTING ORDINANCE CONCERNING ZONING;
PROVIDING FOR ADOPTION OF POLICY AND
PROCEDURE CONCERNING NON-CONFORMITIES
CREATED BY GOVERNMENTAL ACQUISITION OF
PRIVATE PROPERTY; PROVIDING FOR DEFINITIONS;
PROVIDING VARIANCE MECHANISM FOR CURE OF NON-
CONFORMITIES; REPLACING PROVISIONS OF SECTION
33-35(E) OF METROPOLITAN DADE COUNTY ZONING
CODE CONCERNING THE SAME SUBJECT MATTER;
PROVIDING FOR SEVERABILITY; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City Council desires to adopt a policy to deal with land use non-
conformities (the "Non-Conformities") which are created by the acquisition of private
property for transportation facilities or other public purposes by governmental entities (the
"Governmental Acquisitions"), so as to provide a means to cure Non-Conformities, mitigate
the impact of Govemmental Acquisitions upon continued operations of businesses, and
reduce the expenditure of public funds for severance damages and other costs of
Governmental Acquisitions, while preserving traffic and pedestrian safety and enhancing
the aesthetic characteristics of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. Intent and Purpose. The purpose of this Ordinance is to provide a
mechanism for the City to grant variances from the requirements of Chapter 33, "Zoning", of
the County Code, as made applicable to the City pursuant to the provisions of Section 8.03
of the City Charter and Ordinance No. 97-15 of the City, in those situations in which private
property has been subjected to the eminent domain process either through acquisition by
Ordinance No. 97-21
Page 2
formal eminent domain proceedings or negotiation, as a viable and fair means of mitigating
adverse impact to such property as a result of the acquisition process, and to allow the
continued use of property in a manner similar to its pre-acquisition condition. By providing
a method for the Acquiring Authority and/or property owner to obtain a determination of the
remaining allowable uses of the property, the cost of acquisitions of real property needed
for public facility improvements may be reduced.
Section 2. Definitions. The following terms shall have the meaning indicated herein,
when used in this Ordinance.
(a) Acquiring Authority - means the governmental entity proposing to acquire
private property for public transportation or other public purposes pursuant to
eminent domain proceedings or pursuant to negotiation in lieu of or under
threat of the power of eminent domain. Acquiring Authorities include, but are
not limited to, the City, the County, the FDOT or successor entity.
(b) City - means the City of Aventura.
(c) County - means Metropolitan Dade County.
(d) Cure - means a variance granted pursuant to this Ordinance which
authorizes the continued use and enjoyment of private property, as a lawful
use, subsequent to the creation of a Non-Conformity by an Acquiring
Authority
2
Ordinance No. 97-21
Page 3
(e) FDOT - means the Florida Department of Transportation or successor entity.
(f) Non-Conformity - means the failure of a lot, parcel, structure or use to comply
with the requirements of the Zoning Code including, but not limited to, motor
vehicle parking, landscaping, setbacks, lot size or other criteria, which failure
is caused or increased by acquisition of private property by an Acquiring
Authority.
(g) Zonin.q Code - means the City's Zoning Code as provided by the City Charter
Section 8.03 and Ordinance 97-15.
Section 3. Structures, Lot Size and Land Use Made Ille.qal as a Result of
Governmental Acquisition. In the event that an Acquiring Authority acquires private
property for a public transportation facility or other public purpose or facility and the
acquisition results in the increase of or the creation of a Non-Conformity, such private
property shall constitute an illegal non-conforming use unless a variance is granted in
accordance with this Ordinance.
Section 4. Authority to Apply for Variance. The Acquiring Authority and/or the
property owner are each hereby granted the authority to apply for a variance from the
Zoning Code to cure Non-Conformities, pursuant to this Ordinance. Application may be
made prior to or after the creation of the Non-Conformity.
Section 5. Authority to Grant Variances. The City Council shall have the authority
to grant variances to Cure Non-Conformities pursuant to this Ordinance.
Section 6. Standard for Grant or Denial of Variance; Conditions.
Ordinance No. 97-21
Page 4
(1) Existing lots, parcels, structures or uses which become or will become Non-
Conforming or increase in Non-Conformity as a result of governmental acquisition by an
Acquiring Authority, and constitute a deviation from the standards of the Zoning Code, may
be granted a variance by the City Council, provided a determination is made by the City
Council, after public hearing, that:
A. The requested variance will not adversely affect visual, safety,
aesthetic or environmental characteristics of the community; and
B. The requested variance will not adversely affect the safety of
pedestrians or the safe operation of motor vehicles.
C. The requested variance will not cause motor vehicle parking
shortages which adversely impact the community.
D. The requested variance will not encourage or promote the
continuation of existing uses of the property which have been or will
be rendered unfeasible or impractical due to the impacts of the
acquisition and/or construction of the roadway or other public facility
including, but not limited to, aesthetic, visual, noise, dust, vibration,
safety, land use compatibility and environmental impacts.
(2) The Council may impose conditions upon any variance granted so as to assure
compliance with the above listed criteria.
(3) Alternative plans submitted by the Acquiring Authority and/or property owner
may all be approved, with appropriate conditions. The Council shall require conformance
with whichever approved plan is implemented.
Section 7. Status of Lots, Parcels, Structures or Uses After GrantinR of a Variance.
The granting of a variance pursuant to Section 6 of this Ordinance shall serve to Cure the
Non-Conformity, subject to implementation of the variance in accordance with the specific
Ordinance No. 97-21
Page 5
approval granted and in accordance with any conditions imposed upon the grant of such
variance.
Section 8. Procedure for Application for Variance.
(1) The Acquiring Authority and/or property owner may apply in writing to the City
Manager or his designee for a variance pursuant to Section 4 of this Ordinance. The
application may request alternative Cures. The applicable fee established for review and
processing of the application shall be submitted with the application.
(2) If an application for a variance is submitted by the Acquiring Authority, the
property owner shall be notified via certified mail, return receipt requested, of the
application by the City Manager or his designee.
If the property owner desires to submit an application for a Cure in addition to the
plan proposed by the Acquiring Authority, it shall do so within fifteen days of such
notification, so that the applications of both the property owner and Acquiring Authority may
be considered at the same time. If such application is not timely submitted by the property
owner, the application shall not be heard by the City Council unless the Council finds good
cause for the delay by the property owner.
(3) If an application for a variance is submitted by the properly owner, the
Acquiring Authority shall be notified via certified mail, return receipt requested, of the
application by the City Manager or his designee.
If the Acquiring Authority desires to submit an application for a Cure in addition to
the plan proposed by the property owner, it shall do so within fifteen days of such
Ordinance No. 97-21
Page 6
notification, so that the applications of both the property owner and Acquiring Authority may
be considered at the same time. If such application is not timely submitted by the Acquiring
Authority, the application shall not be heard by the City Council unless the Council finds
good cause for the delay by the Acquiring Authority.
(4) Hearings before the City Council shall be conducted in accordance with
Ordinance No. 96-09, which provides the procedure for quasi judicial hearings. Public
notice shall be provided in accordance with Ordinance No. 97-15.
(5) Within fourteen (14) days of the determination of the variance application by the
City Council, the City Manager or his designee will notify the Acquiring Authority and the
property owner via certified mail, return receipt requested, of the final determination.
Section 9. Code Violations.
(1) The provisions of this Ordinance shall not be interpreted to allow for the
continued existence of building or safety cede violations that are determined to be an
immediate threat to the public health, safety or welfare.
(2) The appropriate building officials and inspectors of the City are hereby
authorized to take any all necessary steps to enforce all applicable building and safety
codes even though the subject property is part of a pending govemmental acquisition.
Section 10. Judicial Review. Decisions of the City Council under this Ordinance
shall be subject to judicial review pursuant to Petition for Writ of Certiorari in accordance
with the Florida Rules of Appellate Procedure, as provided by law.
Section 11. Severability. The provisions of this Ordinance are declared to be
Ordinance No. 97-21
Page 7
severable and if any section, sentence, clause or phrase of this Ordinance shall for any
reason be held to be invalid or unconstitutional, such decision shall not affect the validity of
the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall
remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part.
Section 12. Inclusion in the Code. It is the intention of the City Council, and it is
hereby ordained th/at the provisions of this Ordinance shall become and made a part of the
Code of Aventura, Florida; that the sections of this Ordinance may be renumbered or
relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to
"Section" or other appropriate word.
Section 13. Effective Date. This Ordinance shall be effective upon adoption on
second reading.
Section 14. Replacement of Conflicting Provisions. Pursuant to City Charter
Section 8.03, to the fullest extent authorized by law, this Ordinance shall replace the
provisions of Section 33-35(e) of the County Code concerning non-conforming uses, solely
as pertaining to the subject matter of this Ordinance.
The foregoing Ordinance was offered by Councilmember Beskin, who moved its
adoption on first reading. The motion was seconded by Councilmember Cohen, and upon
being put to a vote, the vote was as follows:
Councilmember Jay R. Beskin yes
Councilmember Arthur Berger yes
Ordinance No. 97-21
Page 8
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Councilmember Patricia Rogers-Libert yes
Vice-Mayor Jeffrey M. Perlow yes
Mayor Arthur I. Snyder absent
The foregoing Ordinance was offered by Councilmember Ro.qers-Libert, who moved
its adoption on second reading. The motion was seconded by Councilmember Beskin, and
upon being put to a vote, the vote was as follows:
Councilmember Jay R. Beskin yes
Councilmember Arthur Berger yes
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Councilmember Patricia Rogers-Libert yes
Vice-Mayor Jeffrey M. Perlow yes
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED on first reading this 5th day of August, 1997.
PASSED AND ADOPTED on second rea,~3~, this: d~y of September, 1997.
AR~F-~I 0 R' ['.-S~IYI~ E R, I~AYOR
Al-rEST: ~ f' ~-,
CITY CLERK
APPROVED AS TO FORM AND
LEGAL SUFFIClE,NCY:,
CITY ATTORNEY