On December 8, 2021, at the request of Commissioner Alex Fernandez, the City Commission referred the subject discussion item to the Land Use and Sustainability Committee (C4 AB). The sponsor is requesting the LUSC to study the Planning Board’s existing criteria, obtain the Administration’s professional analysis, and discuss whether any Code amendments are necessary to mitigate the impacts of noise on surrounding properties.

On March 4, 2022 the item was deferred to the April 8, 2022 LUSC meeting, with no discussion.  On April 8, 2022 the item was deferred to the May 13, 2022 LUSC meeting, with no discussion. On May 13, 2022 the item was deferred to the June 1, 2022 LUSC meeting, with no discussion.  The June 1, 2022 LUSC was postponed to June 6, 2022. On June 6, 2022, the item was deferred to the July 7, 2022 LUSC, with no discussion.

On July 7, 2022 the LUSC discussed the item and continued it to the September 23, 2022 LUSC meeting with direction to the Administration to further develop the recommendations outlined in the FPNA Resolution.

The following are the criteria and guidelines for the review of conditional use permits (CUP), pursuant to Section 118-192 of the LDR’s:

Sec. 118-192. Review guidelines.
(a) Conditional uses may be approved in accordance with the procedures and standards of this article provided that:
(1) The use is consistent with the comprehensive plan or neighborhood plan if one exists for the area in which the property is located.
(2) The intended use or construction will not result in an impact that will exceed the thresholds for the levels of service as set forth in the comprehensive plan.
(3) Structures and uses associated with the request are consistent with these land development regulations.
(4) The public health, safety, morals, and general welfare will not be adversely affected.
(5) Adequate off-street parking facilities will be provided.
(6) Necessary safeguards will be provided for the protection of surrounding property, persons, and neighborhood values.
(7) The concentration of similar types of uses will not create a negative impact on the surrounding neighborhood. Geographic concentration of similar types of conditional uses should be discouraged.
(8) The structure and site complies with the sea level rise and resiliency review criteria in chapter 133, article II, as applicable.
(b) In reviewing an application for conditional use for new structures 50,000 square feet and over, the planning board shall apply the following supplemental review guidelines criteria in addition to the standard review guidelines listed in subsection a. above:
(1) Whether the proposed business operations plan has been provided, including hours of operation, number of employees, goals of business, and other operational characteristics pertinent to the application, and that such plan is compatible with the neighborhood in which it is located.
(2) Whether a plan for the mass delivery of merchandise has been provided, including the hours of operation for delivery trucks to come into and exit from the neighborhood and how such plan will mitigate any adverse impacts to adjoining and nearby properties, and neighborhood.
(3) Whether the scale of the proposed use is compatible with the urban character of the surrounding area and create adverse impacts on the surrounding area, and how the adverse impacts are proposed to be addressed.
(4) Whether the proposed parking plan has been provided, including where and how the parking is located, utilized, and managed, that meets the required parking and operational needs of the structure and proposed uses.
(5) Whether an indoor and outdoor customer circulation plan has been provided that facilitates ingress and egress to the site and structure.
(6) Whether a security plan for the establishment and supporting parking facility has been provided that addresses the safety of the business and its users and minimizes impacts on the neighborhood.
(7) Whether a traffic circulation analysis and plan has been provided that details means of ingress and egress into and out of the neighborhood, addresses the impact of projected traffic on the immediate neighborhood, traffic circulation pattern for the neighborhood, traffic flow through immediate intersections and arterials, and how these impacts are to be mitigated.
(8) Whether a noise attenuation plan has been provided that addresses how noise will be controlled in the loading zone, parking structures and delivery and sanitation areas, to minimize adverse impacts to adjoining and nearby properties.
(9) Whether a sanitation plan has been provided that addresses on-site facilities as well as off-premises issues resulting from the operation of the structure.
(10) Whether the proximity of the proposed structure to similar size structures and to residential uses creates adverse impacts and how such impacts are mitigated.
(11) Whether a cumulative effect from the proposed structure with adjacent and nearby structures arises, and how such cumulative effect will be addressed.
(c) In reviewing an application for a religious institution, the planning board shall apply the following review criteria instead of the standard review guidelines listed in subsection (a) above:
(1) Whether a proposed operations plan has been provided, including hours of operation, number of employees, and other operational characteristics pertinent to the application, and that such plan will mitigate any adverse impacts to adjoining and nearby properties, and neighborhoods.
(2) Whether a plan for the delivery of supplies has been provided, including the hours of operation for delivery trucks to come into and exit from the neighborhood and how such plan will mitigate any adverse impacts to adjoining and nearby properties, and neighborhoods.
(3) Whether the design of the proposed structure is permitted by the regulations in the zoning district in which the property is located, and complies with the regulations of an overlay district, if applicable.
(4) Whether a proposed parking plan has been provided, including where and how the parking is located, utilized, and managed, that meets the required parking for the use in the zoning district in which the property is located.
(5) Whether an indoor and outdoor congregant/parishioner circulation plan has been provided that facilitates ingress and egress to the site and structure.
(6) Whether a security plan for the establishment and supporting parking facility, if any, has been provided that addresses the safety of the institution and its users and minimizes impacts on the neighborhood.
(7) Whether a traffic circulation analysis and plan has been provided that details means of ingress and egress into and out of the neighborhood, addresses the impact of projected traffic on the immediate neighborhood, traffic circulation pattern for the neighborhood, traffic flow through immediate intersections and arterials, and how these impacts are to be mitigated.
(8) Whether a noise attenuation plan has been provided that addresses how noise will be controlled in and around the institution, parking structures or areas, and delivery and sanitation areas, to minimize adverse impacts to adjoining and nearby properties.
(9) Whether a sanitation plan has been provided that addresses on-site facilities as well as off-premises issues resulting from the operation of the structure.
(10) Whether the proximity of the proposed structure to adjacent and nearby residential uses creates adverse impacts and how such impacts are to be mitigated.
(11) Whether a cumulative effect from the proposed structure with adjacent and nearby structures arises, and how such cumulative effect will be addressed.

For CUP applications that pertain to either an entertainment specific use, or a Neighborhood Impact Establishment (NIE), a sound study, prepared by a licensed acoustical engineer, is typically required. Such sound study is peer reviewed by an acoustical engineer retained by the city.

The following criteria from subsection 118-192(a) are germane to the issues of noise and sound:

• The public health, safety, morals, and general welfare will not be adversely affected.

• Necessary safeguards will be provided for the protection of surrounding property, persons, and neighborhood values.

• The concentration of similar types of uses will not create a negative impact on the surrounding neighborhood. Geographic concentration of similar types of conditional uses should be discouraged.

Based upon these criteria, the Planning Board does have the authority to impose specific conditions related to any noise and sound emanating from a property. This applies to both indoor and outdoor area.

UPDATE (September 23, 2022 LUSC)
The following are the recommendations of the Flamingo Park Neighborhood Association (FPNA) set forth in the attached Resolution:

1. FPNA requests the Mayor and Commission to give guidance to the Administration to enforce the provision of the County ordinance prohibiting the production or reproducing of sound in “ . . .such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, vehicle or chamber in which such machine or device is operated and who are voluntary listeners thereto . . .” when that sound affects residential properties west of Washington Avenue.

2. FPNA requests the Commission to give guidance to the Administration to include this provision (6.g) from the CUP granted to 1234 Washington Avenue in any Conditional Use
Permit granted by the Planning Board to an outdoor venue within 375 feet of a residential property: “Audio from the subject property, including low-frequency vibrations, shall not be plainly audible or felt, within the interior of the apartment units of the residential buildings to the west of the site, at any time,” with direction modified as appropriate.

Pursuant to the direction of the LUSC, the Administration’s has evaluated each of these recommendations and would note the following:

• Each application for a CUP pertaining to a Neighborhood Impact Establishment (NIE) and/or entertainment uses, is evaluated on a case by case basis by Planning Staff. This evaluation always considers any impacts to nearby and surrounding residential districts and buildings.

• Planning staff makes recommendations on each application to the Board to protect the quality of life of adjacent and abutting residential areas and buildings. Each recommendation needs to be tailored to the unique attributes of the individual application.

• Planning staff will include the following as a recommended standard condition for future CUP applications that involve entertainment:

Audio from the subject property, including any vibrations of a low-frequency or greater, shall not be plainly audible or felt within the interior of any residential unit or home, at any time.

It is important to note that any recommendations in a draft CUP Order are contingent upon inclusion by the Planning Board in the adopted CUP Order.