Planning Board Staff Report




Miami Shores Village Town Hall  Council Chambers  10050 NE 2nd Avenue  Miami Shores

Hearing Date

October 22, 2009

Meeting Time

7:00 P.M.

File Number


Folio Number



David & June Heller, 1300 NE 94th Street Miami Shores FL 33138




Mizrain Perez, 3274 NW 38th Street, Miami, FL 33142

Property Address

1300 NE 94th Street, Miami FL 33138

Legal Description

MIAMI SHORES BAY VIEW PB 40-16 LOT 14 LOT SIZE 128.580 X 136 OR 17172-3930 0496 5 COC 22824-3847 11 2004 1 OR 22824-3847 1104 00

Property Size-Sq Ft


Building Adjusted Sq Ft


Flood Zone

VE-11 and Coastal High Hazard Area




Future Land Use Designation

Single Family Residential

Existing Use

One-family dwelling

Comprehensive Plan Consistency


Existing Structure

2-story; 8 bed/8 bath

Year Built




Errors and Variances, Sec. 702 Hardship variances:  Sec. 518. Fences, walls and hedges. Fence height.

Action Required

Approve, Approve with Conditions, or Deny the application

Other Required Approvals

Village Building Permits

September 29, 2009

Staff Report

David A. Dacquisto AICP, Director, Planning and Zoning

Report Date

September 29, 20009





Staff recommends that the Planning Board make a determination on the fence height variance request prior to hearing the request for approval of a fence in the front yard.


Applicant is proposing a 4 foot fence at the front property line to block pedestrian traffic from their property and to enclose the pool.


The applicant has a pool on a waterfront plot.  The zoning code states that any plot (except a waterfront plot) that is occupied by a private pool, or the yard in which the same is located, shall be enclosed by a fence which has a minimum height for 4 feet.  and the zoning code requires a 4 foot fence.  The property is sideways to the bay and as a result the side yard runs along the bay rather than the rear yard as is the more normal configuration.


The Planning Board must first determine:

1)                  If the intent of the zoning code was to exempt all waterfront properties form the pool fence requirement regardless of the configuration of the property.

2)                  If a pool fence is required would the fence then have to run inside the seawall to enclose the yard.


While it is hard to determine original intent it is possible those who drafted the pool fence zoning code provision anticipated or required fences on three sides of the property but intended to exempt home owners from construction of a fence directly along the bay in the belief that the waterfront would be at the rear of the property and not easily accessible by the public.




If no pool fence is required for any waterfront property then the proposed 4 foot fence would not be required.


If a 4 foot pool fence is required it can be located in the side yard running from the corner of the residence.


Miami-Dade County requires a 4 foot fence around the entire yard occupied by a pool and does not provide any exemption for waterfront properties.


A 4 foot fence is not a significantly better deterrent to trespassers than a 3.5 foot fence and an opening will be present along the seawall unless the applicant completely encloses their property with a fence.


The applicant has responded in the application to the criteria upon which the Planning and Zoning Board will consider the application.


Staff finds that the application does not meet the criteria upon which the Planning Board may consider approval of the hardship variance request.




Planning and Zoning staff recommend DENIAL of the appeal with a finding that the applicant has not provided sufficient specifically stated reasons to support a decision of error on the part of village staff under Section 701 of the Code.  However, if the Planning Board finds that the applicant has proven the action of village staff was in error, the Board may confirm, reverse or modify the same accordingly, stating its reasons therefor, but may not vary the application of any provision of this ordinance.   If the Board votes to Approve the application, staff recommends the following conditions:


1)      Applicant to obtain all required building permits before beginning work.

2)      Applicant to meet all applicable code provisions at the time of permitting.

3)      This zoning permit will lapse and become invalid unless the work for which it was approved is started within one (1) year of the signing of the development order by the board chair, or if the work authorized by it is suspended or abandoned for a period of at least one (1) year.