Resolution Zoning 12-Z-128 - Laserfiche WebLink

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Claudia Hasbun City of Sunny Isles Beach Community Development Department February 27, 2012 Page 4 majority, if not all, of the Daycare Facility's children come from the immediate neighborhood and therefore cause no traffic impacts, the Owner is willing to include in the restrictive covenant a requirement that first priority in enrollment be given to residents of Winston Towers. Further, Sunny Isles Daycare will employ a traffic monitor during peak arrival and departure times to direct the flow of traffic and ensure the safe arrival and departure of children. The City has requested that, as part of our application, we include a request for a variance from Section 265- 44(D)(2), which limits daycare facilities in the R -1 District to six children. We firmly believe that the six -child limitation applies only to facilities in the R -1 District, and not other zoning districts, such as the RMF -2 district in which the Property is located. Rather, in our zoning district, the area -based requirements in Section 265- 44(D)(3), as well as the statutory requirements, are what limit the capacity of daycare facilities.' As we have explained above, the Daycare Facility meets both sets of criteria with ample room to spare. Although we do not believe that we require a variance from Section 265- 44(D)(2) in order to obtain conditional use approval for the 25 -child Daycare Facility, in the event that the City ultimately concludes that such a variance is required, we offer the following explanation for why a variance, if required at all, should be granted in this situation. Pursuant to Section 265 -15 of the City Code, a variance should be granted where "a literal enforcement" of the zoning regulations "would result in unnecessary and undue hardship on the property." Under the circumstances, limiting the Daycare Facility, which is located in a commercial space, to only six students, the same number permitted in a single - family home, would effectuate such an unnecessary and undue hardship. Section 265 -15(G) lays out seven criteria for the consideration of a variance request. The first two criteria require that the "land, structure, or building involved" be subject to special conditions or circumstances that are not common among other properties in the same zoning district and that were not caused by the actions of the applicant. The Property clearly meets these criteria. The Property is a commercial space. Unlike the other properties located in the district, primarily residential condominium units, the Property was designed, not to serve the dual purpose of a residence and a small daycare facility, but to serve the sole purpose as a daycare facility. The Property is distinguishable in every imaginable way from typical properties in the RMF -2 district, and Property's unique circumstances were not created by Sunny Isles 1 As an example, Section 265 -44(D) applies to all daycares in the City, and if the 6 -child limitation similarly applies to all daycares as opposed to only those in the R -1 district (as stated in the provision), then the area calculations in 265- 44(D)(3) make no sense. The area requirements, for example, require an outdoor play area that is the greater of 400 square feet or 45 square feet per child for half of the facility's capacity. If only 6 are permitted, then the area calculation works out to only 135 square feet, and 400 square feet is greater in every single case, rendering the area calculation entirely unnecessary. Ordinances are generally not interpreted in a way that renders its provisions meaningless. 441AMI 2899751.4 7957936929 C4 BILZIN SUMBERG BAENA PRICE & AXELROD LLP