BACKGROUND
On July 13, 2016, at the request of Commissioner Michael Grieco, the City Commission referred this request to the Land Use and Development Committee (Item R5I). On July 20, 2016, the Land Use and Development Committee discussed the item and continued the discussion to September 21, 2016 by acclamation. On September 21, 2016 the item was continued to a date certain of October 26, 2016.
On October 26, 2016 the Land Use Committee discussed the revised draft of the Ordinance, and recommended that the City Commission refer the item to the Planning Board. On November 9, 2016, the City Commission referred the proposed Ordinance to Planning Board (Item C4 C).
PLANNING ANALYSIS
When the City Code is amended in a way that prohibits a use or restricts the use in a zoning district, those existing uses in the district that are not conforming to the new regulations that are pre-existing become legal non-conforming uses. Legal non-conforming uses are allowed to continue their operation as long as the use remains active and does not cease operations for a time period set forth in the City Code Section 118-394. The current language in the City Code regarding the discontinuance of a non-conforming use is stated below:
Sec. 118-394. - Discontinuance of nonconforming uses.
No building, structure, equipment, fixtures or land, or portion thereof, used in whole or in part for a nonconforming use which remains idle or unused for a continuous period of six months, or for 18 months during any three-year period whether or not the equipment or fixtures are removed, shall again be used, except in conformity with the regulations of the district in which such building or land is located.
With the recent amendments to the City Code, such as prohibited uses near residential zoning districts and the operating hours of alcoholic beverage establishments, issues have arisen with regard to those businesses that are already in operation.
Currently, in order to establish the idle status of a non-conforming use, staff researches the BTR and building permit history. If the BTR has not been expired for more than six (6) months, or a building permit has been issued within the six months that tolls the time until the building permit was finalized, then the non-conforming use would be allowed to continue.
The previous proposal to increase the time frame for legal non-conforming uses from six (6) months to eighteen (18) months, as recommended by the Land Use Committee, was amended to a maximum of twelve (12) months (366 days) by the City Commission at the time of referral on November 9, 2016. In this regard, 366 days is a reasonable amount of time to find a tenant, contract with design professionals, apply for building permits and obtain a building permit. The increase in the amount of time might help in the case of tenant disputes as well.
As a point of clarification, the reason staff uses the application for a renovation or repair of a property to toll the time limit, although that provision is not explicitly written into the current ordinance, stems from the case of City of Miami Beach v. State ex rel. Parkway Co., 174 So. 443 (Fla. 1937). In that case, the Florida Supreme Court held that a use was not discontinued for the purpose of the Miami Beach ordinance if the use had been shut down for the purpose of renovations or repairs.
PLANNING BOARD REVIEW
On December 20, 2016, the Planning Board transmitted the proposed Ordinance Amendment to the City Commission, with a favorable recommendation. The Planning Board also recommended minor text changes, which have been incorporated into the draft ordinance for First Reading.