Item Coversheet

Committee Assignments - C4  Q


TO:Honorable Mayor and Members of the City Commission 
FROM:Jimmy L. Morales, City Manager 
DATE:May  8, 2019



The administration recommends that the City Commission refer the attached ordinance to the Planning Board for review and recommendation.


On January 16, 2019, at the request of Commissioner John Elizabeth Aleman, the City Commission referred the discussion item to the Land Use and Development Committee (Item R9 T – 2.b). On April 3, 2019 the Land Use Committee (LUDC) discussed the item recommended that a comprehensive ordinance be drafted by the administration, pursuant to the recommendations in the LUDC report, in an effort to streamline the code and development processes, and that the City Commission refer the ordinance to the Planning Board.

Per Section 118-353 (d) of the land development regulations of the city code, in order to authorize any variance from the terms of the land development regulations, “special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.” There are certain variances which are regularly requested and granted by the board of adjustment, design review board, and historic preservation board. Rather than being the exception to the rule, variance requests accompany most development proposals that are presented before the aforementioned boards. Several of the requests are quite common and usually granted by the applicable board.

Below is a list of commonly approved variance requests, along with potential amendments to the land development regulations (LDR’s), which would eliminate the need for these variances. Additionally, specific recommendations are listed regarding code changes that could eliminate the need for such variances.

1) Variance to reduce the distance separation requirements from alcoholic beverage establishment to a school and places of worship. A minimum of 300 feet is necessary between alcoholic beverage establishments and schools. These variances are almost always granted with conditions, such as for a bonafide restaurant only, or with limited hours. There are certain commercial districts that due to their abutting a school create the need for numerous establishments to request such a variance. This request is especially common for businesses along Espanola Way and Washington Avenue due to the proximity to Fienberg/Fisher Elementary.

The administration recommends creating special districts in the city that remove separation from educational facilities and places of worship in very specific areas where such uses are desired. The special district can incorporate the conditions that are typically imposed by the board of adjustment. The administration recommends the following areas:
• Espanola Way/Washington Avenue area around Fienberg/Fisher Elementary
• 41st Street
• North Beach Town Center.

2) Variance to waive the minimum number of required seats for restaurants to sell beer and wine (30 seats), full alcohol service (60 seats), or outdoor cafes (20 seats). This is regulated by Section 6-6 of the city code. The minimum number of seats does not include those seats located on a sidewalk. If the variances were not granted this requirement would prevent venues that may wish to be small and intimate from obtaining alcoholic beverage licenses and prevent the adaptable reuse of many historic buildings that have small retail bays. As such, variances for the minimum seat requirements are frequently granted by the board of adjustment in commercial districts.

The administration recommends modifying or reducing the minimum seat requirement for restaurants and outdoor cafes to serve alcohol.

3) Variance of minimum required side and rear setbacks for roof-top additions to historic buildings to follow existing non-conforming side setbacks. Rooftop additions to historic buildings must conform to new required setbacks. These variances are typically granted due to the structural gymnastics that are required to setback a roof-top addition from the existing building walls. The variances allow the additions to utilize existing structural supports of the historic building.

The administration recommends modifying the side-setback requirements for rooftop additions to allow them to follow the side setbacks of the existing non-conforming historic building, subject to the Certificate of Appropriateness and Rooftop Addition criteria.

4) Variance for minimum and average unit size for rooftop additions to historic buildings. Historic buildings may often have non-conforming units that are smaller than what can be built in a new building. Variances are often sought for additions to historic buildings so that the size of new units matches those of the original historic building in order to allow for continuation of historic building lines in the new addition.

The administration recommends modifying the minimum unit size requirements for rooftop additions to historic buildings so that they are able to match the size of the existing non-conforming building, provided it complies with the maximum density requirements of the Comprehensive Plan.

5) Variance of minimum side setbacks for mechanical equipment for existing buildings with non-conforming side setbacks. Variances are often sought to allow for the encroachment of mechanical equipment into side yards for existing buildings. The City Commission recently adopted code amendments to allow encroachments into side-yards for mechanical equipment in the RS, TH, and RM-1 districts. Such allowances are currently not permitted in the RPS, RM-2 and RM-3 districts, which require side setbacks.

The administration recommends extending the allowances currently permitted in the RS, TH, and RM-1 districts to the RPS, RM-2 and RM-3 districts.

6) Variance for setbacks of residential portions of mixed-use buildings in commercial districts. Residential and hotel portions of mixed-use buildings in the CD-1, CD-2, and CD-3 districts are required to follow the setbacks of the RM-1, RM-2, or RM-3 district, as applicable. Often these setbacks are impractical in commercial districts. In 2016, the City Commission adopted Washington Avenue zoning incentives which modified the setbacks for hotels. This may be a good guide for modifying these setbacks throughout the City.

The administration recommends refining minimum interior setbacks for hotel and residential uses in commercial districts (CD-1, CD-2, and CD-3), using the Washington Avenue Zoning Incentives as guide.

7) Variance of side and rear pool setbacks for existing pre-1942 architecturally significant homes. The LDR’s provide for reduced setbacks for architecturally significant pre-1942 homes and projections. The placement of the home may require that variances be obtained for pools and pool decks to be built, as the rear yards may not be sufficiently large to accommodate currently required setbacks.

The administration recommends incorporating a setback reduction for pools and pool decks into the incentives for the retention and preservation for pre-1942 architecturally significant homes. A reduction to five (5) feet may be warranted.

8) Variance of minimum dock projection requirements. Chapter 66-113 of the city code requires that boat slips, docks, wharves, dolphin poles, mooring piles, or structures of any kind not extend into any canal or waterway more than 10% of the width of the canal. Often Miami-Dade DERM requires that docks and other marine structures encroach further into a canal so as to not impact sea grass beds, and for other environmental reasons. Consequently variances are often sought from the 10% limitation when applicants seek to construct new docks or boat lifts. The DERM regulations allow for a structure to encroach up to 25% of the width of the canal or waterway, ensuring that at least 50% of the width of the waterway remains clear and allow for conformance to DERM requirements.

The administration recommends an amendment to the code to conform to Miami-Dade County’s waterway projection limits.

9) Variance of fence heights. Currently interior side fences are measured from grade in all districts, except the RS-1 and RS-2 districts where the lot has been raised to adjusted grade. Due to the need to raise lots in many areas of the City, variances are often sought to allow the height of a fence to be measured from adjusted grade.

The administration recommends an amendment allowing the maximum height of interior side yard fences to be measured from the adjusted grade on sites that have approval for adjusted grade.

10) Variance of accessory structure height. The maximum height for accessory structures is currently measured from adjusted grade. Often accessory structures contain guest/servant quarters, which may be habitable. Per the requirements of the Florida building code and the city code, the minimum elevation of a habitable floor in any structure must be located at an elevation of base flood elevation plus a one foot of freeboard (BFE +1). As a result of current limitations, it is difficult for accessory structures to be built with the same resilience of the primary structure, even if a three foot height variance is granted.

The administration recommends an amendment to measure the maximum height of accessory structures from BFE plus the City of Miami Beach Freeboard.

11) Variance of allowable encroachments to allow for planters. The LDR’s list specific items which are permitted as an allowable encroachment. Planters are currently not listed as an allowable encroachment.

The administration recommends adding planters to the list of allowable encroachments in Section 142-1132, along with a reasonable limit for the depth and height of the projection.

12) Variance for installation of fences where the finished side is required to face neighbors. The LDR’s require the finished side of a fence to face neighbors. There are numerous occasions where a neighbor has their own fence or significant landscaping and they are comfortable with the unfinished side facing their property. Miami-Dade County allows for such exceptions with a signed affidavit from the affected neighbor.

The administration recommends providing a similar exception to not require a fence to not have a highly finished material facing a neighbor with an affidavit from an affected neighbor.

13) Variance for relocation of signs. Variances are often sought for the relocation of signage due to the strict limitations of sign code. Since a building may be approved without tenants, the variances for signage are often sought after a building has been approved and built.

The administration recommends the following amendments to the sign code:
• Modify requirements for vertical retail center signage.
• Modify requirements for the location of Building ID signs so that they are not required to be located on a parapet.
• Modify requirements for monument signs.
• Allow the location of signs to be approved administratively per review criteria.

14) Variance for minimum drive aisles widths. The LDR’s require two-way drive isles to be a minimum of 22 feet. For smaller buildings such widths are not always necessary, as they don’t generate significant traffic.

The administration recommends reducing the two-way drive isle width for buildings with fewer than 25 units to be as low as 18 feet.

15) Variance for exceeding the maximum allowable height of porches and terraces. Chapter 142-1132 (o)(6) allows for porches, platforms, and terraces up to 30 inches above grade elevation to encroach up to 25 percent into a required setback. Recent amendments regarding the City of Miami Beach Freeboard requirements, which provide for a higher elevation of ground floors, creates a need for porches, platforms, and terraces which exceed 30 inches in order to be able to provide access and ADA accessibility into buildings. As a result, variances are sought to raise the height of porches, platforms, or terraces beyond 30 inches.

The administration recommends allowing the maximum height of porches, platforms, and terraces to be measured from adjusted grade, as opposed to grade.

16) Variance for exceeding the maximum allowable height by a maximum of three feet for commercial properties in historic districts. Within all commercial districts, the design review board may allow up to an additional five feet of height, as measured from the base flood elevation plus maximum freeboard, to the top of the second-floor slab. This section of the code is designed to provide the DRB with the flexibility to allow for higher first floor heights in order to accommodate future street and sidewalk elevations, as well as the required slopes for ramps accessing upper level parking areas. However, this provision does not apply to historic districts or overlay districts, nor to commercial buildings immediately adjacent to a residential district not separated by a street. However, an applicant may seek a height variance of not more than three feet from the historic preservation board. As a result, new commercial construction seeking to elevate the first floor, and or provide parking at upper levels, often request up to three-foot height variances, so that the project can maximize resiliency.

The administration recommends allowing the same five foot increase in height at the first floor, currently permitted outside of historic and overlay districts, be permitted citywide in commercial districts, including properties immediately adjacent to residential districts.

The attached ordinances would codify all of the above noted recommendations.


The Administration recommends that the City Commission refer the attached ordinance amendment to the Planning Board for review and recommendation.
Legislative Tracking
Commissioner John Elizabeth Aleman

Chapter 6 - DRAFT REF ORD
Chapter 66 - DRAFT REF ORD
Chapter 130 and 142 - DRAFT REF ORD
Chapter 138 - DRAFT REF ORD