Filing # 32521867 E-Filed 09/25/2015 04:38:12 PM

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
BETH SCHWARTZ,
DR. CLAUDIA HAURI,
LORI YANOSKIK, and
ANGELA and CARLOS SOTO
Plaintiffs,
vs.
CITY COMMISSION OF THE CITY OF
SOUTH MIAMI,
Defendant.

_J
COMPLAINT FOR WRIT OF MANDAMUS

COME NOW, Plaintiffs, BETH SCHWARTZ, DR. CLAUDIA HAURI, LORI

YANOSKIK and ANGELA and CARLOS SOTO ("Plaintiffs"), and petition this Court
pursuant to Rule 1.630, Fla. Rules of Civ. Proc., and Fla. Const. Art. V, Section 5(b), for
a Writ of Mandamus directing Defendant, CITY COMMISSION OF THE CITY OF
SOUTH MIAMI ("City"), to reconsider and retake the vote on Ordinance No. 18-15
2225 so as to be in compliance with the City Charter requiring such Ordinance to be
adopted only upon a unanimous vote of City Commission, and as grounds therefore
states:
1.

Plaintiffs are natural persons and residents of the City of South Miami.

2.

Defendant is the governing body of the City of South Miami, which City

is located in Miami-Dade County.

3.

This is an action for a Writ of Mandamus to enforce Article II, section

6.D.1 of the City Charter which requires, in relevant part:

1

Except as otherwise provided in this charter, five affirmative votes of the

city commission shall be required to approve the actions indicated below:
...To amend land use and development regulations in any manner to make
them less restrictive.
See Exhibit A, attached hereto.

The City Charter is available in its entirety at

http://www.southmiamit1.aov/DocumcntCenter/View/222.
4.

Venue in Miami-Dade County is appropriate because the City is situated

in Miami-Dade County, Plaintiff is a resident of the City, and all relevant events took
place in the City.
5.

All conditions precedent to the Court's jurisdiction in this action have

been fulfilled.
FACTS
6.

The City Commission on August 18, 2015 purported to adopt an

Ordinance, Ordinance No. 18-15-2225 (the "Ordinance"), amending the City Land
Development Code to add a large number and variety of land uses to the list of land uses
permitted in the Transit-Oriented Development Public/Institutional zoning district known
as the TODD (PI) zoning district. The Ordinance is attached as Exhibit B hereto.
7.

The Transit-Oriented Development (TODD) zoning district established in

the City Land Development Code includes five sub-category districts, of which TODD
(PI) is one subcategory district. See Exhibit C, excerpts of the City Land Development
Code.1

The Land Development Code is also available at

https://www.municode.com/library/fl/south_miami/codes/land_development_code7nodel
d=L ADECO ARTV11ITRIEDEDI.
1

8.

The TODD (PI) zoning district existing prior to the August 18, 2015 City

Commission vote to adopt the Ordinance allows as permitted land uses in the zoning
district only "Schools, Governmental facilities, utilities, churches and other similar uses."
See Exhibit C.
9.

The City Charter, at Article II, Section 6.D.1, requires that any action by

the City Commission to approve an amendment to land use and development regulations
in any manner to make them less restrictive must be approved by five (5) affirmative
votes of the City Commission.
10.

The City Commission is composed of five (5) City Commissioners. The

City Commission voted to adopt the Ordinance by a three (3) to two (2) vote; three (3)
Commissioners voting in the affirmative and favor of the Ordinance, and two (2) voting
in the negative and opposed to the Ordinance.
11.

As is clearly evident, the Ordinance, by its very title, seeks to add

additional uses to the TODD (PI) district. See Exhibit B. The title states:
An Ordinance amending the City of South Miami Land Development
Code, Article VIII, titled "Transit-Oriented Development District,"
Section 20-8.3(C)(2)(d) to add uses permitted in the other TODD districts
to the TODD (PD Public Institutional zoning district. (Emphasis added).
12.

The uses added by the Ordinance to the list of permitted uses in the

TODD (PI) sub-category district include all of those uses from the other Transit-Oriented
Development (TODD) sub-category districts contained in the Land Development Code.
As a result, the TODD (PI) district has become less restrictive, allowing many more types
and variety of land uses than originally were permitted in the TODD (PI) district.

13.

Specifically, the new and expanded list of land uses added by the

Ordinance to the TODD (PI) district include all of the uses allowed in the following
TODD subcategories districts:
TODD (MU-4): Residential Uses, Commercial Uses.
TODD (MU-5): Residential uses, Commercial Uses.
TODD (LI-4): Residential Uses, Commercial Uses, Light Industrial Uses.
See Section 1 of the Ordinance (Exhibit B), amending Section 20-8.3(C)(2)(d) of the City
Land Development Code.
14.

The list of Residential Uses that under the Ordinance are permitted in the

TODD (PI) zoning district, which were not permitted prior to the adoption of the
Ordinance, are found in Section 20-8.4. See Exhibit C.
15.

The list of Commercial Uses that under the Ordinance are permitted in the

TODD (PI) zoning district, which were not permitted prior to the adoption of the
Ordinance, are found in Section 20-8.5. See Exhibit C. This Section includes and refers
to a list of more than one hundred (100) storefront uses and office uses found at Section
20-7.12 of the Land Development Code (See Exhibit D) and a list of more than eighty
(80) business and professional services uses found at Section 20-3.3 of the Land
Development Code (See Exhibit E). These lists of storefront, office, business and
professional service land uses that are allowed in the other TODD subcategories are
obviously inclusive of many more uses and types of uses than were allowed in TODD
(PI) zoning district prior to adoption of the Ordinance.
16.

Specifically, the list of land uses classified under the category of business

and professional services in Section 20-3.3, pages 5-9 of Exhibit E, is obviously broad
and various. In contrast, the list of public and institutional uses allowed in the TODD
4

(PI) district prior to the Ordinance only included "Schools, Governmental facilities,
utilities, churches and other similar uses." Further, the list of public and institutional uses
that are included in Section 20-3.3, highlighted on pages 3-4 of Exhibit E, includes, in its
entirety:
Child Care Facility
Early childhood child care, Pre-K, Pre-School
Fraternal Organization or Private Club
Governmental Administration
Museum, Library or Art Gallery
Park or Playground, Public
Social Services Agency
Likewise, the list of storefront and offices uses in Section 20-7.12 (see pages 1-6 of
Exhibit C) is wide ranging and numerous and in stark contrast to the limited list of public
and institutional land uses set forth above and those listed in the TODD (PI) district prior
to adoption of the Ordinance.
17.

Similarly, Light Industrial Uses that under the Ordinance would now be

permitted in the TODD (PI) zoning district include all of those uses found in Section 20
8.7, which section refers to the extensive list contained in Section 20-3.3 for retail and
wholesale trade uses (with a few exceptions) and manufacturing and intensive uses. See
Exhibit E, pages 9-14, for the detailed list of uses allowed as retail and wholesale trade,
manufacturing and intensive uses.
18.

Thus, the Ordinance purportedly amends the TODD (PI) district to open

up the district's land uses to allow uses that are not limited to governmental or
institutional uses, but instead would include all residential uses, commercial uses, and
light industrial uses, whether or not the uses are governmental or institutional.

19.

By way of example, if a commercial development such as a private retail

store (whether clothing or apparel store, computer supplies and services, carpeting or
flooring sales, or any of the other number of storefront uses listed in Section 20-7.12)
were proposed to be built in the TODD (PI) district under the Land Development Code as
it existed prior to the vote on August 18, 2015, the private retail store would be
prohibited. This is because commercial uses are not listed as permitted uses in the TODD
(PI) district as it existed prior to the purported adoption of the Ordinance. As another
example, the Ordinance would now allow a Lumber and Building Materials Store,
Recreational Vehicle Dealer (Retail and Wholesale Trade), Stonecutting and Processing
(Manufacturing and Intensive), and any number of the hundreds of uses listed in the land
use lists in Sections 20-7.12 and Sections 20-3.3 of the Land Development Code, that
were not allowed in the TODD (PI) district before the adoption of the Ordinance.
20.
The City Charter, at Article II. D.l. "Requirements for Adoption"
provides:
All resolutions or ordinances shall be adopted by no less than three affirmative
votes of the City Commission.
Except as otherwise provided in this Charter, four affirmative votes of the City
Commission shall be required in the following instances:
To issue bonds or borrow money
To grant, renew or amend any lease or franchises
To transfer title to property
To appropriate or expend non-budgeted funds
To approve an initiatory ordinance pursuant to Article V
Except as otherwise provided in this charter, five affirmative votes of the city
commission shall be required to approve the actions indicated below:
To amend land use and development regulations in any manner to make
them less restrictive
To issue bonds or borrow money in excess of five percent of the city's
current operating budget

(Emphasis added).
21.

On September 1, 2015, the undersigned wrote to the City of South Miami

City Commission on behalf of concerned citizens to request that the City honor and
comply with the Charter, and reconsider the Ordinance and bring it back for
consideration by the City Commission for the required unanimous vote of the City
Commission. See Exhibit F.
22.

On September 1, 2015, at the regular meeting of the City Commission,

Plaintiff BETH SCHWARTZ read the aforesaid letter to the City Commission during the
public comment period of the meeting. The City Commission did not act to reconsider
the vote in order to vote correctly, but instead asked the City Attorney for a point-bypoint rebuttal to the letter.

A video of the Commission discussion is available at

http://southmiami.m-anicus.com/MediaPlaver.phD7clin id=856ddee0-6461 -4ed9-b4247322b451e5dc&meta id=52687ecb-3cba-4adf-85fl-003ef3bc8e7b (beginning at 1:23:53

and ending at 1:27:33).
MANDAMUS
23.

Plaintiffs are residents of the City and have a clear and certain legal right

to the performance of the City Commission in conformance with the mandate of the City
Charter. The Charter is clear and unequivocal that an action by the City Commission to
approve an amendment to the Land Development Code that makes the land use and
development regulations less restrictive must be approved by five affirmative votes of the
City Commission.
24.

The duty of the City Commission to the public to obey the Charter is not

discretionary, but is a performance required by law by operation of the Charter.

7

25.

The City Commission has failed to perform its duty despite the request of

the undersigned and Plaintiff.

26.

Plaintiffs have no other legal method for obtaining relief.

WHEREFORE, based on the foregoing, Plaintiffs BETH SCHWARTZ, DR.

CLAUDIA HAURI, LORI YANOSKIK and ANGELA and CARLOS SOTO,
respectfully request that the Court enter an alternative writ in mandamus pursuant to Rule
1.630(d)(2), Florida Rules of Civil Procedure, and upon Defendant's failure to show
cause that a final writ should not issues, that this Court issue a final, preemptory writ of
mandamus requiring the City Commission to retake the vote on the Ordinance for
approval only by unanimous vote as required by the Charter. Plaintiffs pray for such
other relief as is just and proper.

Dated: September 25, 2015

Respectfully Submitted,

NANCY E. STROUD
Florida Bar No.: 278564
nstroud@lsdlaw.net
LEWIS STROUD & DEUTSCH, P.L.
1900 Glades Road, Suite 251
Boca Raton, FL 33431
Tel: (561) 826-2800
Fax: (561) 826-2828
Counsel for Plaintiffs

Charter of The City of South Miami

Amended 2/11/14
Page 13 of 39
D.
Voting Procedure. Voting shall be by roll call. The "yeas" and "nays" shall be
recorded individually in the minutes of each meeting.
No Commission member shall be excused from voting as required by law. (Amended
2/8/00)
1.
Requirements for Adoption. All resolutions or ordinances shall be adopted by no
less than three affirmative votes of the City Commission. (Amended 2/8/00)
Except as otherwise provided in this Charter, four affirmative votes of the City
Commission shall be required in the following instances: (Amended 2/8/00 and 11/04/08 8t
2/9/10)
To issue bonds or borrow money
To grant, renew or amend any lease or franchises
To transfer title to property
To appropriate or expend non-budgeted funds
To approve an initiatory ordinance pursuant to Article V
Except as otherwise provided in this charter, five affirmative votes of the city commission
shall be required to approve the actions indicated below:
To amend land use and development regulations in any manner to make them less
restrictive
To issue bonds or borrow money in excess of five percent of the city's current
operating budget
2.
Emergency Ordinances. To meet a public emergency affecting life, safety, health,
property or the public peace, the Commission may adopt one or more emergency ordinances, but
an emergency ordinance may not grant, renew or extend a franchise or authorize the borrowing
of money except as provided in this Charter. An emergency ordinance will be introduced in the
form and manner prescribed for ordinances generally, except that it shall be plainly designated as
an emergency ordinance and shall contain, after the enacting clause, a declaration stating that an
emergency exists and describing it in clear and specific terms. An emergency ordinance may be
adopted with or without amendment or rejected at the meeting at which it is introduced.
The affirmative vote of four members present shall be required for the adoption of an
emergency ordinance. After its adoption, the ordinance shall be published as prescribed for
other adopted ordinances. It shall become effective upon adoption or at such later date as it may

m
2

EXHIBIT

ORDINANCE NO.

18-15-2225

An Ordinance amending the City of South Miami Land Development

Code, Article VIII, titled "Transit-Oriented Development District,"
Section 20-8.3(C)(2)(d) to add uses permitted in the other TODD
districts to the TODD (PI) Public / Institutional zoning district.
WHEREAS, the City Hall site is designated TODD (PI) on the City's Zoning
Map, and limited to the government and assembly oriented uses permitted in this district
currently described in the City's Land Development Code; and
WHEREAS, the opportunity to redevelop the City Hall site pursuant to a Public
Private Partnership is severely limited due to the restrictions on uses permitted in the
TODD (PI) zoning district; and
WHEREAS, the Administration has reviewed the feasibility and effect of the
City Commission amending the Land Development Code to allow uses permitted in the
other TODD sub-categories also in the TODD (PI) district, and recommends the adoption
of such an amendment; and
WHEREAS, the City Commission desires to adopt this amendment to
accomplish the above objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1.
Article VIII, titled "Transit-Oriented Development District,"
Section 20-8.3(C)(2)(d), of the Land Development Code, City of South Miami, Florida, is
hereby amended and shall read as follows:
20-8.3 - Creation of TODD subcategories.
(A) For purpose of recognizing the existing patterns of land use, the need to encourage a
logical mix of land uses, and the need to promote a higher density of uses together with
practical development bonus opportunities, the following sub-categories (zones) are
hereby created:
(1) "TODD (MU-4)" Mixed Use 4
(2) "TODD (MU-5)" Mixed Use 5
(3) "TODD (LI-4)" Light Industrial 4
(4) "TODD (PI)" Public / Institutional
(5) TODD (PR) Parks and Recreation
(B) The boundaries of the Transit-Oriented Development District and the sub-categories
shall be indicated on the City's Official Zoning Map and also shown on the Regulating
Plan Graphic, as presented in Section 20-8.17

Page 1 of3

rllBIT
EXHIBIT

LJ

Ord. No. 18-15-2225

(C) Permitted Uses:

(1) There are five use categories within the TODD district: Residential Uses,
Commercial Uses, Light Industrial Uses, Public/Institutional and Parks and Recreation.
(2) The uses permitted in each TODD sub-category shall be as follows:
(a) TODD (MU-4): Residential Uses, Commercial Uses.
(b) TODD (MU-5): Residential Uses, Commercial Uses.
(c) TODD (LI-4): Residential Uses, Commercial Uses, Light Industrial
Uses.
(d) TODD (PI) Schools, Governmental facilities, utilities, churches and
other similar uses, as well as all other uses permitted in the other TODD sub-categories.
All uses in the TODD (PD shall otherwise be in accordance with all the other
development regulations of TODD (PI\ unless the Citv Commission determines bv
special exception that the development regulations in the TODD sub-categorv from
which a permitted use was adopted should also apply to that adopted use.
(e) TODD (PR) Public parks and open spaces.
(D) Permitted Heights:
(a) TODD (MU-4): 2 story maximum.
(b) TODD (MU-5): 2 story minimum: 4 story maximum; up to 8 stories
with bonus. Maximum height 100 feet.
(c) TODD (LI-4): 2 story maximum.
(d) TODD (PI): Building height compatible with surrounding districts.
(e) TODD (PR): Public parks and open spaces.
Section 2.
Codification. The provisions of this ordinance shall become and
be made part of the Code of Ordinances of the City of South Miami as amended.
Section 3.
Severability. If any section, clause, sentence, or phrase of this
ordinance is for any reason held invalid or unconstitutional by a court of competent
jurisdiction, this holding shall not affect the validity of the remaining portions of this
ordinance or the Guidelines adopted hereunder.
Section 4.
Ordinances in Conflict. All ordinances or parts of ordinances and
all sections and parts of sections of ordinances in direct conflict herewith are hereby
repealed.
Section 5.
enactment.

Effective Date. This ordinance shall become effective upon

PASSED AND ENACTED this JJL day of August

, 2015.

APPROVED:
XfTVcLERK
1stReading 7/7/15
2na Reading- 8/18/15

Ord. No. 18-15-2225

READ AND APPROVED ASTO FORM, COMMISSION VOTE:

LANGyApj^ LgGALyrY^Nq
Mayor Stoddard:
EX^G^TOljrraHREOF/ J
Vice Mayor Harris:
jr /j \ J
j J y/
Commissioner Liebman:
/
/
/7
Commissioner Edmond:
!
j / */Commissioner Welsh:
\ CYVY AfTORNBY if

3- 2

Yea
Nay
Yea
Nay
yea

ARTICLE VIII. - TRANSIT-ORIENTED DEVELOPMENT DISTRICT

20-8.1 - Purpose.
The purpose and intent of this regulation is to maximize the presence of a dedicated mass transit
center located within walking distance of the boundaries of the proposed district. The maximum utilization
of that facility will be achieved through the creation of a district that surrounds this major mass transit
facility and is designed to encourage a mix of high density uses, specifically residential, retail and office
uses. It also will provide for the continuation of existing light industrial uses but encourage redevelopment
throughout the Transit-Oriented Development District (T.O.D.D.) through flexible and performanceoriented zoning and other regulations.
The regulation is intended to promote efficiency of land use, decrease vehicular traffic, provide
convenience, establish a harmonious mix of uses ali within a pedestrian friendly environment. The
Transit-Oriented Development District (T.O.D.D.) is designed to encourage a strong base of residential
development, coupled with the complementary provisions for retail services and local employment
opportunities all within acceptable walking distances. To accomplish this goal, the code ties together
intense new development with a high quality pedestrian environment. This is accomplished through a
series of bonuses that ties residential development, higher densities, and lessened dependence on
vehicular traffic together.
(Ore). No 9-97-1630. 1. 4 -1-97)
20-8.3 - Creation of TODD subcategories.
(A) For purpose of recognizing the existing patterns of land use, the need to encourage a logical mix of
land uses, and the need to promote a higher density of uses together with practical development
bonus opportunities, the following sub-categories (zones) are hereby created:
(1) "TODD (MU-4)" Mixed Use 4
(2) "TODD (MU-5)" Mixed Use 5
(3) "TODD (LI-4)" Light Industrial 4
(4) "TODD (PI)" Public / Institutional
(5) TODD (PR) Parks and Recreation
(B) The boundaries of the Transit-Oriented Development District and the sub-categories shall be
indicated on the City's Official Zoning Map and also shown on the Regulating Plan Graphic, as
presented in Section 20-8.17
(C) Permitted Uses:
(1) There are five use categories within the TODD district: Residential Uses, Commercial Uses,
Light Industrial Uses, Public/Institutional and Parks and Recreation.
(2) The uses permitted in each TODD sub-category shall be as follows:
(a) TODD (MU-4): Residential Uses, Commercial Uses.
(b) TODD (MU-5): Residential Uses, Commercial Uses.
(c) TODD (LI-4): Residential Uses, Commercial Uses, Light Industrial Uses.
(d) TODD (PI) Schools, Governmental facilities, utilities, churches and other similar uses.
(e) TODD (PR) Public parks and open spaces.
(3) A description of the specific uses permitted in each of the major use categories is provided in
the Section 20-8.4 through 20-8.7

EXHIBIT

Page 1

(D) Permitted Heights:

(a) TODD (MU-4): 2 story maximum
(b) TODD (MU-5): 2 story minimum: 4 story maximum; up to 8 stories with bonus. Maximum height
100 feet.
(c) TODD (LI-4): 2 story maximum
(d) TODD (PI): Building height compatible with surrounding districts
(e) TODD (PR): Public parks and open spaces
(Ord. No. 9-9M630. 1. 4-1-97. Ord No. 20-99-1694. 2 11-16-99)
20-8.4 - Residential use.
The following residential uses are permitted in these zoning classifications that specify this category
within the T.O.D.D.
(A) Floor Area. The following are minimum requirements for floor areas for the apartment units as
specified:
Efficiency/Studio

400 square feet

One Bedroom

550 square feet

Two Bedroom

700 square feet

Three Bedroom

850 square feet

(B) Density, as many units as may be permitted as can be provided with parking.
(C) Residential and lodging uses, as permitted with required parking as noted in section 20-7.12.
Residential uses are permitted on the first floor.
(Ord. No. 9-97-1630. 1. 4-1-97)
20-8.5 - Commercial use.
The following classifications, uses, and corresponding parking requirements shall be permitted with
the T.O.D.D.:
(A) Storefront uses, as indicated in section 20-7.12
(B) Office uses, as indicated in section 20-7.12 and all uses in the Business and Professional
Services Group as indicated in section 20-3.3, except the following uses shall not be permitted:
1.

Bowling alley or skating rink.

(Ord No. 9-97-1630. 1, 4-1-97; Ord No. 25-01-1 /56. 2. 10-2-01)

20-8.7 - Light industrial use.
The following uses are permitted in this category along with the required parking:
(A) All retail and wholesale trade uses as indicated in section 20-3.3, except the following uses:

Page 2

(1) Automobile dealers.

(2) Boat dealers.
(3) Gasoline service stations.
(4) Recreational vehicle dealer.
(5) Convenience store.
(B) Manufacturing and intensive uses, as indicated in section 20-3.3
(C) Special conditions. Industrial uses are limited to the first floor only, but no higher than 20 feet.
(C)rd No 9-97-1630. 1. 4-1-9"/, Orel No 26-01-1766. 3. 10-2-01)

Page 3

20-7.12- Permitted uses.

The uses below are applicable to both new and existing buildings in the Hometown District:
USE TYPE:

Unadjusted Parking Requirements:

1parking space required per:

A. Storefront Uses
Antique or Curio Shop

300 SF

Bakery

300 SF

Bank or Savings Institution

300 SF

Beauty or Barber Shop

300 SF

Bicycle Sales & Services

300 SF

Book or Stationery Store

300 SF

Bowling Alley/Restaurant/Entertainment Center

100 square feet for restaurant

5 spaces for each alley

Bus, Machine Sales & Services

300 SF

Bus, Transit orTaxi Terminal

400 SF

Camera & Photo Supply Store

300 SF

Carpeting or Flooring Sales

300 SF

Clothing or Apparel Store {new only)

300 SF

Computer Supplies & Services

300 SF

Confectionery or Ice Cream Parlor

150 SF

Consumer Electronics or Music Store

300 SF

Cosmetics Store

300 SF

Page 1

Dairy Products Store

150 SF

Day Care Center

250 SF

Deli

150 SF

Department or Dry Goods Store

400 SF

Drinking Place

100 SF

Drug, Pharmacy or Sundry Store

300 SF

Dry Cleaning Substation (no processing)

300 SF

Fabric or Drapery Shop

300 SF

Film Processing, Retail

300 SF

Florist

300 SF

Fraternal Organization or Private Club

100 SF

Gift, Novelty or Souvenir Shop

300 SF

Grocery Store

150 SF

Hardware Store

300 SF

Hobby, Toy or Game Shop

300 SF

Home Furniture or Furnishings Store

300 SF

Household Appliance Store

300 SF

Inter. Decorator, Showroom/Salesroom

250 SF

Jewelry Store

300 SF

Laundromat

300 SF

Page 2

Lighting Fixtures Store

300 SF

Liquor Store

300 SF

Luggage or Leather Goods Store

300 SF

Mail & Parcel Center

250 SF

Messenger or Courier Services

300 SF

Museum, Library or Art Gallery

400 SF

Newsstand

300 SF

Office Supplies

300 SF

Opticians or Optical Goods, Showroom

200 SF

Paint, Glass & Wallpaper Store

300 SF

Pet Sales or Grooming Services

300 SF

Photographic Studio

300 SF

Physical Fitness Facility

300 SF

Picture Framing Store

300 SF

Poultry, Meat or Seafood Market

300 SF

Restaurant, General or Walk Up*

100 SF

Restaurant, Small*

400 SF

Sewing/Needlework/Piece Goods Store

300 SF

School

400 SF

Shoe Repair Shop

300 SF

Page 3

Shoe Store

300 SF

Sporting Goods Store

300 SF

Tailor or Seamstress

300 SF

Tanning Studio

300 SF

Theater or Cinema

4 seats

Tobacco Shop

300 SF

Used Merchandise Store: Antiques

300 SF

Used Merchandise Store: Consignment*

300 SF

Variety Store

300 SF

Videotape Rental Store

300 SF

Watch and Clock Sales & Repair

300 SF

B. Office Uses

Accounting & Auditing Services

250 SF

Acupuncturist

200 SF

Advertising Agency

250 SF

Architectural Services

250 SF

Building Contractors Office

250 SF

Chiropractic Office or Clinic

200 SF

Counseling Services

250 SF

Credit Reporting Services

250 SF

Page 4

Dentist Office

200 SF

Dry Cleaning Plant*

300 SF

Employment Agency

250 SF

Engineering Services

250 SF

Governmental Administration

250 SF

Insurance Agency

250 SF

Interior Designer, Office only

250 SF

Investigative Services

250 SF

Investment & Tax Counseling

250 SF

Laboratory: Medical or Dental

200 SF

Law Office

250 SF

Loan or Finance Agency

250 SF

Market Research Services

250 SF

Massage Therapist

200 SF

Medical Office

200 SF

Notary Public

250 SF

Office, Business or Professional

250 SF

Opticians or Optical Goods, Office only

200 SF

Personal Skills Instruction Studio

250 SF

Physical Therapist

200 SF

Page 5

Planning & Zoning Consultant

250 SF

Public Relations Services

250 SF

Radio & TV Broadcasting Station

400 SF

Real Estate Agency

250 SF

Reproduction and Stenographic Services

300 SF

Social Services Agency

250 SF

Stock Brokerage Services

250 SF

Telephone Answering Services

300 SF

Tutorial Services

300 SF

Travel Agency

250 SF
(SF refers to gross square feet)

C. Residential & Lodging Uses

Unadjusted Parking Requirements:

Dwelling, Townhouse

2 spaces per dwelling unit*

Dwelling, Multi-Family (Efficiency)

1.5 spaces per dwelling unit*

Dwelling, Multi-Family (1+ bedrooms)

2 spaces per dwelling unit'

Hotel

USE TYPE:

1space per room + 2 additional

Unadjusted Parking Requirements:

Page 6

Community Residential Home

2 spaces per dwelling unit

Adult Congreg. Living Facility*

2 spaces per dwelling unit

Convalescent Home

1space per 500 SF

** plus 1 additional parking space required for every 10 units.

* Uses marked with an asterisk require a special use permit with city commission approval. All other
uses are permitted of right. Outdoor dining is permitted of right in special pre-approved areas
(see Regulating Plan).
In addition to the uses above, monumental civic building uses are encouraged in the Hometown District
and in particular for certain strategically located sites. Civic building uses shall include, for example: City,
county, state, or federal buildings, including library, post office, meeting hall, administrative offices,
performance place, police substation, and similar uses.
(D) Planned Unit Developments shall not be permitted in the Hometown District.
(Ord. No. 19-93-1545. 1. 10-19-93, Ord. No. 15-01-1746. 2. 7-24-01. Orel No. 07-07-1908. 2.
3-20-07: Ord. No. 12-08-1947. 2. 3-18-08. Ord No. 01-14-2179. 1. 1-7-14)

Page 7

20-3.3 - Permitted use schedule.

(A) Type of Permitted Uses.
(1) Uses permitted by right or as a special use in each district shall be determined from the
Permitted Use Schedule in Section 20-3.3(D).
(2) All uses shall comply with:
(a) Any specific special use conditions referenced and set forth in Section 20-3.4
(b) All off-street parking requirements referenced and established in Section 20-4.4; and
(c) All other applicable requirements of this Code.
(B) Established Nonconforming Uses. Uses which were established prior to the adoption of this Code or
its predecessors, but which are now inconsistent with the requirements of this Code shall be
permitted if such uses meet the requirements of this Code for a valid nonconforming use.
(C) Permitted Use Schedule.
(1) Uses identified in a particular district column with a "P" are "permitted by right" and may be
allowed in such district, subject to all other applicable requirements of this Code.
(2) Uses identified in a particular district column with an "S" are "special uses" and may be
permitted in such district with such conditions as referenced in the "Conditions" column (second
from right on the Schedule) and defined in Section 20-3.4, subject to all other applicable
requirements of this Code.
(3) Off-street parking requirements for each permitted or special use are referenced in the
"Parking" column (far right on the Schedule) and are further defined in Section 20-4.4(B).
(4) Uses not listed as "permitted by right" or as "permitted as special use" in a district are not
allowed in such district unless otherwise expressly permitted under this Code in accordance
with paragraph (5) below.
(5) New or unlisted uses of similar nature.
(a) The director of building/zoning and community development shall consider the nature of
the proposed use, its compatibility with other uses permitted in the various districts and
determine the zoning district or districts within which the use should be permitted, if any.
(b) The city manager shall transmit the findings and recommendations of the director of
building/zoning and community development for the classification proposed for any new or
unlisted use to the city commission for review at its next regularly scheduled meeting.
(c) The city commission shall approve the recommendations of the director or make such
determination concerning the classification of the new or unlisted use as it determines
appropriate.
(6) Location of Permitted "SR" District Uses. In the "SR" Specialty Retail District, permitted retail
uses shall be located only on first and second floor building levels, permitted office uses only on
second floor building levels, and permitted residential uses only on second floor building levels
or above, except that for buildings abutting U.S. 1 (South Dixie Highway) that contain more than
50,000 square feet of ground floor space, permitted office uses may be located on the first,
second or third floor building levels within that portion of the building lying within 175 feet of the
U.S. 1 (South Dixie Highway) right-of-way.
a)

The percentage of permitted office uses that would be allowed to occupy the first or ground
floor of multi-tenant structures shall not exceed a contiguous twenty-two (22%) percent of
the first or ground floor building area of the entire building. Requests for office uses in
excess of a contiguous 22% will require a "special exception" approval pursuant to Section
20-7.51 of the Land Development Code.

b)

Ground floor office uses shall be required to have ground floor visibility from the adjacent
streets and interior walkways, and shall be open and regularly accessible to customers and
patrons during regular business hours. These uses shall to the best of their ability, maintain
a retail storefront look along the interior walkways comparable to traditional retail sales
operations.

c)

The ground-floor office uses with a facade along the adjacent street shall have storefront
windows covering no less than twenty-five (25) percent of the ground-floor building
frontage wall area. Storefronts shall remain un-shuttered at night and shall utilize
transparent glazing material, and shall provide view of interior spaces lit from within. Where
interior building frontages exceed fifty (50) feet, doors or entrances with public access or
egress shall be provided at intervals averaging no greater than twenty-five (25) feet.

Note: Subsection (E) deleted and Standard Industrial Classification Column deleted from the
Permitted Use Chart on August 21, 1990 by Ord. No. 11-90-1451.

SECTION 20-3.3(D)
PERMITTED USE SCHEDULE
P

PERMITTED BY RIGHT

PERMITTED AS SPECIAL USE

COND

SPECIAL USE CONDITIONS (See Section 20-3.4

PARK

PARKING REQUIREMENTS (See Section 20-4.4(B))

No conditions were adopted

ZONING DISTRICT
T T T
L
USE TYPE

R R R R R R R R
S S S S S T T M
1 2 3 4 5 6 9 1
8

0 0 0
R

M D D D

M R L M N S G U D D D
2 0 0 0 R R R A
4

H M M L
U U

4 5 4
PLANNED UNIT

T T
0 0
D D
D D H
P P

C
P
i

P 0
R N
D

1 R

SSSSSSSSSSSSSSSS

DEVELOPMENT

Page 2

RESIDENTIAL USES
Boardinghouse

P P

P P

P P

Dwelling, Single-Family PPPPPPPPPS

Dwelling, Tourist

17 1
P P

P P P

PPPPP

17 2

Dwelling, Townhouse

PPPPS

Dwelling, Two-Family

P P P S

Dwelling, Multi-Family

PPS

PPPPP

17 3

PPP

PPP

SSSSSSSS S S

SSS

15 1

SSSSSSSS SS

SSS

15 1

PPPP

17 1

Community
Residential Home, 7 or
more
Group Home I
,
t
Licensed (6 or less)
Group
Home II
K
Unlicensed (6 or less)
Home Occupation

PPPPPPPPPP

PUBLIC AND INSTITUTIONAL USES

Adult Congregate
Living Facility
Convalescent Home
Child Care Facility (7 or
more children)
Early childhood child
care, Pre-K, Pre-School

SSS

SSS

13 1

PPP

PPP

13

SSSSSSS

SPPPP

SPP

PPP

PPPP

PP

23 10

Page 3

Fraternal Organization
or Private Club

s s s s

Governmental
Administration

p p

p p p p

Service

P P P P P P P P

Museum, Library or

Public

P P P P P P P P

10

p p p

p p p

p p p

p p

p p p p

s s s s s

Social Services Agency

14 5

p p

Art Gallery
Park or Playground,

Hospital
Mobile Pet Grooming

12

s s s s

10

EDUCATIONAL USES
School, Elementary or

Secondary

s s s s

School (ancillary to

23 12

principle use), Church

School, Private or
Charter
School, Vocational

12

s s s s

23 12

s s s s

23 12

RELIGIOUS USES
Church, Temple,
Synagogue or Mosque

s s s s

Page 4

ZONING DISTRICT
T T T
OOO
M D D D

USE TYPE

RLMNSG UDDD
O O O R R R A
H M M L
U U I
4 5 4

T T
O O
D D
D D H
P P

P P 0

I R N

18

I R

BUSINESS AND PROFESSIONAL SERVICES

P P P

Accessory Medical Services

Accounting and Auditing Services

PPP

PPPP

10

Acupuncturist

PPP

PPPP

Advanced Registered Nurse Practitioner

PPP

PPP

Advertising Agency

PPP

PPPP

10

Animal Hospital or Veterinarian

Architectural Services
Automobile Parking Structure

Automobile Rental Agency

S
PPP

S P

21 12

PPPP

10

PPP

22

11

Automobile Repair and Body Shop

11

Automobile Repair

11

Automobile Upholstery and Top Shop

11

Automobile Washing/Detailing Operations

10 11

Page 5

Bank or Savings Institutions, Mortgage

Banking/Mortgage Brokerage
Beauty or Barber Shop (includes nail/skin care as
accessory or as separate establishment
Bed and Breakfast

PPPPPPP

11

SSPPPPPPP

16 11

P P P P

Billiard Parlor

Bowling Alley or Skating Rink

Bowling Alley/Restaurant/Entertainment Center
Building Contractors Office

4
11

S
S

11 16
S

16

PPPPPPP

10

11

Carpet Cleaning Service

Catering Services
Chiropractic Office or Clinic
Counseling Services

11
PPPPP

PPPP

14

PPPPPPPPPP

10

14

Computer Supplies and Services

PPPPPPPP

11

Credit Reporting Services

PPPPPPP

10

Contractor Plant and Storage

Dentist Office
Dry Cleaning Substation (no processing)
Dry Cleaning Plant
Employment Agency
Engineering Services

PPPPP

PPPP

SSPPPPPPP
SSSSSS
PPPPPPP
PPPP

PPPP

9
16 11
7

11
10
10

Page 6

Film Processing Substation

SSPP

PPPP

Funeral Home

S S

Hotel or Motel

PPPPPPP

Insurance Agency

16 11
3

PPPPP

11
4

PPPP

10

Interior Decorator, Showroom and Salesroom

PPPPPPP

10

Interior Decorator, Office only

PPPPPPP

10

Investigative Services

PPPP

PPPP

10

Investment and Tax Counseling

PPPP

PPPP

10

Laboratory, Medical or Dental

PPPP

PPPP

P P

P P P P

11

PPPP

PPPP

10

11

Loan or Finance Agency

PPPPPPP

10

Mail and Parcel Center

PPPPPPPPP

10

Laundromat
Law Office
Lawn Maintenance Services

Market Research Services

Massage Therapist
Medical Office

PPPP

PPPP

PPPP

PPPP

PPPPPPP

Mobile Automobile Wash/Wax Service

SSSSSSSSSSS
PPPPP

PPPP

10

PPPPPPPPPP

Messenger or Courier Services

Notary Public

9
P

9
11

20 N/A
10

Page 7

Office, Business or Professional

* 50% of ground floor square footage must be

PPP

PP*PPPP

10

retail uses.
Opticians or Optical Goods, Showroom

PPPP

PPPP

Opticians or Optical Goods, Office only

PPPP

PPPP

Pest Control Services

Personal Skills Instruction Studio

11

PPPPPPPPP

10

Photographic Studio

SSP

PPPP

16 11

Physical Fitness Facility

SSP

PPPP

16 11

PPPPP

PPP

Physical Therapist
Picture Framing Store
Planning and Zoning Consultant
Psychologist
Public Relations Services
Quick Printing

PPPPP
PPPP
PPP

Reproduction and Stenographic Services

Research and Development

10
9

PPPP

10

PPPPPPPPP

11

11

PPPP

10

PPPPPPP

11

P P

14

PPPP

PPPPP

Reupholstery and Furniture Repair Services

Shoe Repair Shop

11

PPP

Radio and Television Repair Shop

Real Estate Agency

PPPP

P P

S S

12

P P P P

11

Page 8

Stock Brokerage
Tailor or Seamstress

PPPP

PPPP

10

P P P P

11

11
**

Tanning Studio

Taxidermist

11

Telephone Answering Services

PPPP

PPPP

11

Tutorial Services

PPPP

PPPP

11

P P P P

15

PPPP

PPPP

10

P P P P

11

PPPPPPP

11

Theater or Cinema
Travel Agency
Watch and Clock Sales and Repair
Video Tape Rental Store

P P

RETAIL AND WHOLESALE TRADE

Air Conditioning Sales and Services
Antique or Curio Shop

11

P P P P P P

11

Automobile Accessories and Parts

Automobile Dealer

Bait and Tackle Shop

11

Bakery

P P

P P P P

11

Bicycle Sales and Services

P P

P P

11

Boat Dealer

11

11

P P
9

11

Page 9

Book or Stationery Store

SS

PPPPPP

16 11

PPPPPP

11

PPPPPP

16 11

Carpeting or Flooring Sales

PPPPPP

11

Clothing or Apparel Store (new only)

PPPPPP

11

Business Machine Sales and Services

Camera and Photo Supply Store

Confectionery or Ice Cream Parlor

SS

SSPPPPPPP

16

Consumer Electronics or Music Store

PPPPPP

11

Cosmetics Store

PPPPPP

11

Dairy Products Store

PPPPPPP

Deli

PPPPPPP

PPPPPP

12

Department or Dry Goods Store

Drinking Place
Drug, Pharmacy or Sundry Store

SS

SSPSSS

16

SSPPPPPPP

16 11

PPPPPP

11

Florist

SSPPPPPPP

16 11

Gasoline Service Station

Fabric or Drapery Shop

Grocery Store (over 4,000 sfgfa)

Gift, Novelty or Souvenir Shop
Glass and Mirror Sales and Services
Hardware Store

PPPPPP
SS

PPPPPP
P

11
8

16 11

11

PPPPPP

11

Page 10

11

Heavy Machinery Sales, Rental and Services

PPPPPP

16 11

Household Appliance Store

P P P P P P

11

Home Furniture or Furnishings Store

PPPPPP

11

PPPPPP

16 11

Hobby, Toy or Game Shop

Jewelry Store

SS

SS

Lawn and Garden Supplies

11

Lawnmower Sales and Services

11

Luggage or Leather Goods Store

pppppp

11

Lighting Fixtures Store

pppppp

11

Liquor Store

S S p s s s

11
11

Lumber and Building Materials Store

* N/A

Mobile Food Vendors

11

Monument Sales

9 11

Motorcycle Dealer

SSPPPPPPP

16 11

SS

PPPPPP

16 11

Paint Glass and Wallpaper Store

pppppp

11

Pet Sales or Grooming Services

pppppp

11

Newsstand
Office Supplies

Plant Nursery or Greenhouse

11

Plumbing Shop

11

Page 11

Poultry, Meat or Seafood Market

P P

Recreational Vehicle Dealer

Restaurant, Accessory

11

P P P P

11

16 N/A

S S

4a 7

Restaurant, Convenience
Restaurant, General

S S S

S S

S S

4b 7

Restaurant, Walk up

S S

S S S S

4c 7

Sewing, Needlework or Piece Goods Store

11

Shoe Store

11

Sporting Goods Store

11

P P

12

SSPPPPPPP

16 11

Tea Room
Tobacco Shop
Used Merchandise Store: Antiques

p p

p p p P

Used Merchandise Store: Consignment Goods

S S

S S

Used Merchandise Store: Secondhand Goods

Used Merchandise Store: Vehicle Parts

Variety Store

p p

11

s s

11

11

11

p p p p

11

13

Wholesale Sales and Storage

* Revised January 15, 1991 by Ord. No. 3-91-1468 under section 15-63, miscellaneous provisions, South
Miami Code of Ordinances (see text at end of table).
** Parking requirement category; 1 space per 300 sq. ft. gross floor area.

Page 12

ZONING DISTRICT
T

0 0 0
M D

USE TYPE

L M N S G U

OOO R R R

D D
D D

A
H M M L
U

T T
0 0
D D
D D H
P P
I

P P 0

I R N
D

R
K

TRANSPORTATION, WAREHOUSING AND COMMUNICATIONS

Radio and TV Broadcasting Station
Bus, Transit or Taxi Terminal

PP

PPPPPP

12

P P

12

12

Food Storage Locker

12

Material Storage Yard

Parking Lot, Commercial

P P

P P

Storage Garage

14

Transfer and Moving Company

14

Vehicle and Truck Storage

14

Public Warehousing and Storage

14

MANUFACTURING AND INTENSIVE USES

Apparel Products

14

Cabinet Making and Millwork

14

Food Products (no abattoir or distillery)

14

Page 13

Furniture and Fixtures

14

Machine Shop

14

Ornamental Metalwork Shop

14

Paint and Allied Products

14

Printing, Publishing or Bookbinding

14

Sign Painting and Lettering Shop

14

Stone Cutting and Processing

14

Tire Vulcanizing and Retreading

14

Upholstery Shop

14

EXCERPT FROM THE SOUTH MIAMI CODE OF ORDINANCES

Section 15-63 Mobile vendors: definition and regulation

(a) A mobile vendor is any person, firm, corporation or other entity which travels from place to
place selling any and all goods, wares, and merchandise, including, specifically, food, food
products and beverages.
(b) All mobile vendors are prohibited from operating or doing business in the City of South
Miami except as hereinafter provided.
(c) Mobile vendors selling food, food products and beverages may operate and do business in I
zoning districts or upon construction sites where work is actively in progress upon the following
terms and conditions:
i.No mobile vendor shall station itself upon any public street or right-of-way. Neither shall any
mobile vendor station itself upon any private property except with the express permission of the
owner thereof and in a manner which does not impede the flow of traffic in public streets or
rights-of-way nor block pedestrian access to streets or rights-of-way.
ii.All mobile vendors must provide for their own trash and garbage removal such that no trash
or garbage remains on the premises upon which the vending was conducted.

Page 14

'to.

<8^.

September 1,2015
Honorable Mayor and
City Commission Members
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Re: TODD (PI) Public/Institutional Zoning District amendment
Dear Mayor and Commissioners:
A number of concerned citizens in the City of South Miami have engaged me to review
the action by the City Commission on August 18, 2015 which purported to adopt an Ordinance
amending the City Land Development Code to add uses permitted in the other Transit-Oriented
Development Districts to the TODD (PI) Public/Institutional zoning district. Specifically, I have
been asked to opine as to whether the City Commission's vote to approve the Ordinance was
consistent with the City Charter. My opinion is that the Commission's vote to approve the
Ordinance requires a 5/5 vote of the City Commission. As the Ordinance did not pass by the
required vote, the City Commission's action is invalid.
Article II, section 6.D.1 of the City Charter requires, in relevant part:
"Except as otherwise provided in this charter, five affirmative votes of the city
commission shall be required to approve the actions indicated below:
To amend land use and development regulations in any manner to make them less
restrictive."
It is undisputed that the Ordinance passed only by a 3/5 vote. As is also clearly evident, the
Ordinance, by its very title, seeks to add additional uses to the TODD (PI) district. The title
states:
"An Ordinance amending the City of South Miami Land Development Code,
Article VIII, titled "Transit-Oriented Development District," Section 208.3(C)(2)(d) to add uses permitted in the other TODD districts to the TODD (PI)
Public Institutional zoning district."

Stride

EXHIBIT

Mayor and City Commissioners

September 1,2015
Page 2 of3
The TODD (PI) zoning district in the Land Development Code existing on August 17,
2015 allows only "Schools, Governmental facilities, utilities, churches and other similar uses."
The uses proposed by the Ordinance to be added to the TODD (PI) include all of those uses from
the other TODD districts, which are not limited to governmental or institutional uses, but include
all residential uses, commercial uses, and light industrial uses, whether or not the uses are
governmental or institutional. In this way, both the types of uses (additional residential,
commercial and light industrial) and the character of the uses (not institutional or governmental)
would be allowed in the TODD (PI) district.
The Merriam-Webster dictionary defines "restrictive" as "serving or tending to restrict."
It further defines the verb "restrict" as "to limit the amount or range of (something)... to prevent
(someone) from doing something... to allow (someone) to only have or do a particular thing."
Opening up the TODD (PI) district to include additional uses is clearly not a limiting or less
restrictive action, but an expansion.
By way of example, if a commercial development such as a private retail store were
proposed to be built in the TODD (PI) district under the Land Development Code as it existed on
August 17,2015, the commercial development would be prohibited. This is because commercial
uses are not listed in the TODD (PI) district as it existed on August 17, 2015. Section 203.3(C)(4) of the Land Development Code states that:
Uses not listed as "permitted by right" or as "permitted as special use" in a district
are not allowed in such district unless otherwise expressly permitted under this
Code in accordance with paragraph (5) below.
Paragraph (5) allows new or unlisted uses of "similar nature" only after a process by which the
Planning Director and City Manager make recommendations to the City Commission and the
City Commission approves. Clearly, commercial development is not of a similar nature as
schools, governmental facilities, and churches. Under the Ordinance, however, commercial
development would be allowed.
Finally, I understand that an opinion was offered that the 5/5 vote was not required
because the Ordinance was a "correction" to bring the Land Development Code into consistency
with the Comprehensive Plan. First, I would note that there is no exception in the Charter for
"corrections," so the vote is invalid on that basis alone. But also, the Land Development Code
by law is considered to be consistent with the Comprehensive Plan if the uses allowed in the
zoning district are more restrictive than what the Comprehensive Plan Future Land Use Category
would allow. This principle was established in the case of Board of County Commissioners of
Brevard County v. Snvder. 627 So. 2d 469 (Fla. 1993).
The plain language of the Charter does not allow additional uses to be incorporated in the
TODD (PI) district without the required 5/5 vote, and the Ordinance was not required to be
adopted to bring the Land Development Code into consistency with the Comprehensive Plan.
On behalf of my clients, I respectfully request that the Mayor and City Commission honor the

Mayor and City Commissioners

September 1,2015
Page 3of 3
provisions of the Charter and reconsider the Ordinance, bringing it back for consideration by the
City Commission for the required 5/5 vote.
Very truly yours,

cc: Thomas Pepe

City Attorney

Nancy E. Stroud