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08-03-1995 Public HearingMIAMI SHORES VILLAGE PLANNING & ZONING BOARD PUBLIC HEARING AUGUST 3, 1995 The Planning & Zoning Board of Miami Shores Village held a Public Hearing Thursday, August 3, 1995 in the Chamber of the Village Hall commencing at 6:31P.M. The following members were in attendance: Present: Also Present: Cliff Walters, Chairman Robert Blum Frank Hegedus Charles Smith Mark Ulmer William Fann, Village Attorney Michael Couzzo, Jr., Village Manager Frank LuBien William Nelson Lisa Kroboth 1'I'EM #1 MINUTES - July 27, 1995 Mr. Blum wanted to clarify a statement on page 4. "...since color through tile is standard, the metal roof should meet these standards also." Mr. Blum asked that the minutes be amended to state the following "... since color through tile is standard, the metal roof should meet a similar standard." Mr. Ulmer moved for approval of the minutes as amended. Mr. Smith seconded the motion. The vote was unanimous in favor. ITEM #2 DISCUSSION AND POSSIBLE ACTION REGARDING REQUEST TO AMEND ORDINANCE NO. 270, SCHEDULE OF REGULATIONS. Mr. Fann advised the Board that if they elect to take no action, then there is no appeal for this proceeding. Any action must be initiated by the Board so there is no petition to be considered. Mr. Walters stated that the item suggests a new use be added to the B-2 zoning classification. This would allow for the establishment of a video rental business provided it met a certain criteria. Mr. Fann noted that any zoning changes must be done with some measure of planning. Mr. Fann suggested that the Board obtain some information on the subject from the Village Planner. Planning & Zoning August 3, 1995 Page 2 Mr. Walters noted that the Board should consider the criteria for use in the zoning change. Mr. Fann stated that there is a video store in the proximity of the proposed site. The proposed ordinance could cause other zoning problems with other properties. (For example, having 40,000 sq. ft. in a planned shopping center). Mr. Walters stated that zoning is a tool for government to • control how land within the jurisdiction is used. Mr. Hegedus noted that there was a statement regarding the proposed site to be a freestanding structure. Mr. Christopher Cutro, land development consultant for the petitioner whose office is located at 2 Oakland Boulevard was present on behalf of the petitioner. Mr. Cutro has twenty years of experience as a planner. The petitioner would like to add an additional commercial use to a medium intensity zone in the Village of Miami Shores. There were two different proposals submitted. The first proposal was to allow the use in the district, to have it in a freestanding building of 5,000 sq.. ft. with no limitation to location. After discussion with Village staff and the City Planner, the petition was amended to a 40,000 sq. ft planned shopping center and the structure did not have to be a freestanding structure. Mr. Cutro noted that there are concerns regarding video rentals and video sales. He said that the video retail has been defined since it is a mature business. Most stores are 3,000 to 5,000 sq.. ft. and operate between 10:00 a.m. to 12:00 a.m. There are staff requirements, lighting requirements and property restrictions. The plan submitted is based on the industry standard. He noted that the market dictates where the store should be located. Mr. Cutro asked that action be taken to add the petition to the zoning text and recommendation be made to the Village Council as such. Mr. Walters inquired as to how other communities regulate video stores in the proximity to schools. Mr. Cutro stated he did not know. However, he noted that there would probably be a distance requirement (referring to adult videos). Mr. Walters said that adult videos are an issue. Mr. Cutro noted that attempts to regulate adult video are specific. The store may not be within 1500 ft of a school or the proximity to a single family residential area. Mr. Walters noted that there is a State Statute that defines what an adult video is. If those videos are not carried, then those standards do not necessarily apply. Mr. Cutro noted that it must be defined, which it is not, in the Village Code. Mr. Ulmer noted that there are obvious concerns having video stores. One, is the obscenity issue and the other is the potential for traffic and parking problems. Mr. Cutro noted that the peak hours at most video stores are between 6:00 and 9:00 p.m. on Friday and Saturdays. By requiring the video store to be in a shopping center, parking overflow could extend into other spaces in the parking lot. Mr. Ulmer stated that consideration should not be site specific. It should be asked if this is an appropriate use in a commercial zone. Mr. Ulmer noted that the ordinance should be consistent with the Comprehensive Plan. Since there are issues that need to be addressed, a recommendation cannot be made to the Village Council. However, the Board can recommend the Village Staff follow-up on the issues and report back to the Board. Planning & Zoning August 3, 1995 Page 3 Mr. Ulmer stated that there could be Sherman Anti -Trust problems for the Village since Mr. Moroz would have a monopoly on video rental in the Village. Mr. Ulmer inquired if a study has been done on the proposed code as to whether it will apply only to Mr. Moroz's property or if it could apply to other properties. Mr. Cutro noted that the code could be written to allow for use on commercial properties throughout the Village. In regard to obscenity issues, Mr. Cutro noted that most adult video stores require anoniminity. The proposed site does not exhibit any of these characteristics. Mr. Fann noted that there was an adult section in the existing video store. Mr. Boris Moroz, a trustee for the property, noted that the Blockbuster lease states "tenant has entered into this lease in reliance upon representation by the landlord that the shopping center is and will remain retail in character and further no part of the shopping center shall be used as a health club, exercise or dance studio, dance hall, bar, billiard or pool hall, as a massage parlor, game arcade, night club, or adult book or adult video tape store (which are defined as stores which any portion of the inventory is not available for sale or rental to children under eighteen years old because such inventory explicitly deals with and depicts human sexuality)." Mr. Moroz stated that if Blockbuster signs a lease with the proposed property site, he would be bound by this lease. He stated that there are thirty-five parking spaces for the proposed site. Mr. Walters noted that the problem does not pertain to the property or Blockbuster. The issue is an overall change in the zoning use, considering what anyone would do if the proposal were considered. Mr. Smith noted if the language of the proposal were to be adopted, the strongest tool that the Village would have to control the tenant of the building is by Planning & Zoning Board or Village Council approval. The provision is very arbitrary since it would be the only use in the Zoning Code with that provision. Eventually, the provision would be taken out and control would be lost. Mr. Cutro stated that additional criteria could be added to the proposal to allow for these issues. Mr. Smith noted that there is no way to control the use of the property. Anything that could be construed as a video use could use the space and perpetuate the legal non -conformity of that use. Mr. Smith inquired as to the number of folio numbers for the property. Mr. Moroz stated that there is a unity of title. Mr. Ulmer asked if a study had been performed as to the type and amount of parking needed for a store to meet current industry standards for video. Mr. Cutro stated that normally, retail requirements are applied. Mr. Michael Weiss, representative for Blockbuster, stated that typically, thirty to forty parking spaces are required as a minimum. PUBLIC COMMENT Wayne Herzog, owner of Flicks & Critics Video 9033 Biscayne Blvd. Mr. Herzog stated that he has been at his location for eight years and presently has 6,000 members. Many Miami Shores residents are members. He offers specialized care which he considers to be an asset to the Village. Mr. Herzog noted that there were other video stores in the area that could also accommodate Miami Shores Village residents: Bob Rich Video, Horizon Video, Blockbuster on N.E. 131 Street and N.W. 103 Street. Planning & Zoning August 3, 1995 Page 4 Mr. Ulmer inquired if Mr. Herzog was opposed to making video stores legal. Mr. Herzog confirmed that he was. He noted that he does have an adult video section in his store. However, there have been no complaints regarding this section of the store. Mr. Herzog noted that he is a Shores resident and that he is a responsible, community minded individual. Mt. Smith inquired if there was a "no competition" clause in his current lease. Mr. Herzog confirmed there was, until December 1996. Bill Kelly 426 Grand Concourse Mr. Kelly has been a resident of Miami Shores Village since 1966. He is a retired F.B.I. agent and law enforcement agent whose specialty is obscenity and child pornography. He is considered a national expert in both fields. Mr. Kelly noted that Florida Statute 847 deals with obscenity. Unless the State Attorney's office is willing to prosecute, nothing can be done to eliminate adult video stores. If the proposal is passed, the Village will be stuck with this problem. Since 1977, there have been almost no obscenity prosecutions (less than 10). In 1990, at Mr. Kelly's request, Metro Dade did a survey of the number of video rental stores handling sexually explicit material. There were 155 stores, none of which have been prosecuted. Mr. Ulmer inquired if the State has pre-empted obscenity (Chapter 847). Mr. Kelly confirmed that it had. He also noted that the Village cannot prosecute as a municipality, only the State Attorney can. Mr. Ulmer asked if other municipalities had anti -obscenity ordinances and whether or not they were enforceable. Mr. Kelly said they were unconstitutional. Mr. Ulmer stated that passing an ordinance allowing videos does not necessarily mean that adult video stores would open. He inquired as to how video usage could be allowed while preventing obscene video operations. Mr. Kelly stated that you cannot prevent obscenity. Mr. Ulmer asked how other municipalities are preventing it. Mr. Kelly stated that stores like Blockbuster are keeping their promise not to allow obscenity. Mr. Kelly noted that North Miami has the largest stock of sexually explicit videos in the country. He stated that there are three things needed to successfully prosecute an obscenity case: someone to demand prosecution, a police officer to investigate and a prosecutor to take the case. Ann Herzog, co-owner Flicks & Critics Video 9033 Biscayne Blvd. Ms. Herzog stated that it was per the request of the members that adult video section was started in the video store. She stated that the store has supported many community activities. They are community oriented and would like to stay. END OF PUBLIC COMMENT Planning & Zoning August 3, 1995 Page 5 Mr. Smith inquired of Mr. Weiss, Blockbuster Video, what the standard radius of a market area for a video store of 5,000 sq. ft. Mr. Weiss stated that there really is none. Concentration is on demographics. Mr. Walters asked if other stores were planned south of the proposed site. Mr. Weiss confirmed there was not. Mr. Smith noted a store in Miami Shores would draw a market to the south. Mr. Weiss confirmed this. Mr. Hegedus asked if there was any information available (by zip code) as to the market for the Blockbuster store on 131 Street. Mr. Walters asked Mr. Fann if it would be appropriate for the Board to make a suggestion, in the form of a resolution, that the Village staff look at the issue to see if an amendment could be made to allow video rentals as an allowable use. Mr. Fann stated that there are many issues the Board has to attend to before making a resolution (a study of the parking, the affect on the B-2 district, property availability). Mr. Fann suggested that a recommendation be made to the Village Council that the Village Staff provide information regarding the impact of the proposal. Mr. Ulmer moved that the Board create an adhoc committee consisting of three Board members to study the proposal to amend the Code of Ordinances which will allow video rentals with conditions addressing the issues of concern. The motion died for lack of a second. Mr. Smith stated that three of the Board members may not be able to address the issue since it would require expert opinion. Mr. Ulmer moved that the current adhoc committee be asked to study the proposal to amend the Code of Ordinances to allow video rentals and sales with conditions and restrictions that will protect the Village's concerns mentioned tonight. Mr. Hegedus seconded the motion. Mr. Ulmer stated that a planner and lawyer should be on the committee. Mr. Ulmer stated that the Board could refer the issue to the Village Staff or request that funds be appropriated so that Mr. Swarthout could perform the study. Mr. Walters stated that people that are involved with the community be involved due their sensitivity. Mr. Blum stated that he is concerned with controlling the content of the video store. He also noted that the Village recently signed a contract with the cable company which will allow for unlimited channels, so the use of video rentals may die. Mr. Walters noted that once the issues are addressed, the Board and the Village Council can make the correct decision in regards to this proposal. Mr. Fann stated that the Board must review the facts before a decision can be made. Mr. Smith stated that, for the record, it is the responsibility of the applicant to pay for the fees and to pay for the recommendations. It is not the responsibility of the Board. He also stated that the Board should not create an Ordinance to meet the needs of an applicant. Mr. Hegedus noted that planning & zoning has been used repeatedly to achieve a certain goal. Mr. Fann said the Board will be approving the type of zoning, which he stated cannot be done arbitrarily. Mr. Walters asked the Village Manager, Mr. Couzzo, if the issues brought up tonight could be addressed and if the proposal could be adopted, the staff could create a zoning amendment that would satisfy the Board. Mr. Couzzo suggested that the motion include the Village staff to address the concerns of the Board. • Planning & Zoning August 3, 1995 Page 6 Mr. Hegedus inquired if a variance may be used rather than an ordinance amendment. Mr. Fann stated that there are no use variances in Miami Shores. Mr. Walters stated that the Board should move slowly on this issue. Mr. Blum stated that it has been brought to the Board's attention that interest in having another video store has been shown. Mr. Ulmer stated that the proposal should be considered in the sense of a use that should be allowed in Miami Shores. Mr. Smith stated that if the Board agrees that this issue should be investigated, it is confirming that they are in favor of the amendment. Mr. Blum stated that he would like to find a means to allow another video store, while allowing for control of the content. Mr. Ulmer restated his motion as follows: The current adhoc committee, with the input of Staff including the Village Planner and the Village attorney be asked to study the proposal to amend the Code of Ordinances to allow video rentals and sales with conditions and restrictions that will protect the Village's concerns mentioned tonight. Mr. Hegedus seconded the motion. The vote was as follows.: Those in favor: Mr. Blum, Mr. Ulmer, Mr. Walters, Mr. Hegedus Those opposed: Mr. Smith Mr. Fann noted that anyone (the Board members, Village Staff, and the adhoc committee) involved with the proposed ordinance cannot communicate with anyone regarding the issue. ITEM #3 ADJOURNMENT The August 3, 1995 meeting of the Planning & Zoning Board was adjourned at 8:10 p.m. izabeth A. Kroboth, Recording Secretary