South Dade Matters have
posted an interesting article entitled "PB
NPO: Christ Fellowship – You Are Not Alone." I recommend that all read this article. It lists 15 properties it claims would be affected
by the enactment of the Neighborhood Protection Ordinance (NPO). I agree with 13 of the 15 identified, but
want to be clear that the Palmetto Bay Village Center (PBVC) is not located in
a residential district. The PBVC is
situated in a Village
Mixed Use district. (Sec 30-50.19) (also
see official
Palmetto Bay zoning atlas) The FPL site is also exempt by charter. One of the conditions placed upon Palmetto
Bay by Miami-Dade County as a condition of incorporation is that the FPL site
is off limits to Palmetto Bay zoning until such time as FPL ceases to operate
the site for power creation (see
Section 9.6.)
If the NPO is enacted as
currently intended, the 13 list properties cease to be allowable structures
under the Palmetto Bay Land Development Code.
These properties will then be conditional uses, known as a non-conforming
use.
Legal
Nonconforming Uses
Any continuous, lawfully
established building or structure erected or constructed prior to the time of
adoption, revision or amendment, or granted a variance of the zoning ordinance,
but which fails, by reason of such adoption, revision, amendment or variance,
to conform to the present requirements of the zoning district
This means what was once
legal is now not by operation of an amended or new law. A lawfully established building or structure
erected or constructed prior to the time of adoption is ‘grandfathered’ in – temporarily.
It is therefore
disingenuous to state that the NPO does not affect Palmer, Westminster, any of
the Montessori schools or current Churches.
They are simply frozen in place, unable to make any changes to their
current site plans unless or until they modify their properties to comply with
the new NPO.
This is why I contend it is
ill-advised to rush the NPO legislation forward. We need much more staff analysis to determine
the impact on existing facilities.
What
is a non-conforming use?
The Palmetto Bay code
current has regulations in place for nonconforming uses. See Sec.
30-10.4. (also click “Read more” below for full text).
A nonconforming use is the
use of a particular parcel of land that is not permitted by the current zoning
requirements of the applicable zoning classification. Nonconforming uses may or
may not include nonconforming development standards. There may also be
nonconforming sites, whose use is conforming, but whose development standards
may not conform to current ordinances.
IMPORTANT: the
legal non-conforming use does not allow a structure to be rebuilt if
destruction exceeds a certain percentage. Only a variance of use and sometimes
a rezoning can allow a 100% rebuild of a property after total or significant
destruction occurs. A rezoning sometimes does not permit a 100% rebuild,
because nonconforming development standards (like setbacks scheduled to be
placed in the Palmetto Bay NPO) may not be able to be replicated.
(a)
Continuance of nonconforming uses. Nothing contained in this Land
Development Code shall be construed to prohibit a continuation of the
particular lawful use or uses of any land, building, structure, improvement, or
premises legally existing in the respective districts as of the adoption of
this Code. Any modification of an existing lawful use shall conform to the
regulations this Code.
(b) Change in location of
nonconforming building or structure. Should any nonconforming building or
structure be moved, it shall be required to conform to the existing regulations
for the district.
(c) Rules for interpretation.
Nothing in this Land Development Code shall be interpreted as authorization
for, or approval of, the continuation of any illegal or unauthorized
nonconforming use of a building and/or structure. The casual, intermittent,
temporary, or illegal use of land, building or structure shall not be
sufficient to establish the existence of a nonconformity.
(d) Expanding or extending permitted
nonconformity is prohibited, except under the following circumstances:
(1)
Restoration. Any nonconforming structure that has been damaged or
made unsafe or unusable to an extent less than 50 percent of either the
assessed value of the structure excluding the land recorded by the property
appraiser's office, or the comparable property appraisal for the total market
value of the structure, may be restored or reconstructed to its intended use,
provided; however, the floor area of such use, building or structure shall not
exceed the floor area requirements that currently exist under the Code. All
repairs shall be substantially completed within one year of the sustained
damages or such use shall not be restored. A nonconforming feature may not be
increased or intensified. The one year period may be extended by the Building
Official, consistent with emergency repairs and extensions provided under the
Florida Building Code.
(2) Repairs. Normal maintenance
and repair and incidental alteration of a nonconforming structure or a
nonconforming use is permitted, provided it does not extend the area or volume
of space occupied by the nonconforming use. A building or other structure
containing residential nonconforming uses may be altered to improve interior
livability; provided, however, that no structural alterations are made that
would increase the number of dwelling units or otherwise increase a
nonconforming feature of the structure.
(3) Site alterations. Site
alterations, including but not limited to the management of off-street parking
or the enlargement of nonbuilding recreational facilities of a nonconforming
use, are permitted provided that the proposed alterations do not increase the
degree of nonconformity.
(4) Single-family dwellings.
Restoration, repairs, and site alterations can be made to existing single-family
dwellings in districts that allow such single-family dwellings, provided that
such restorations, repairs or site alterations do not increase the number of
dwelling units, increase density, increase the degree of the nonconformity, or
result in a different type of nonconformity from that which is already
considered to be grandfathered.
(5) Nonconforming density.
Existing residential dwellings that are nonconforming as to density shall not
require a variance to permit the otherwise allowable addition or alteration to
the building or site, provided that the density is not increased.
(e) Effect of actual construction and
application for certificate of use or building permit. To avoid undue
hardship, nothing in this division shall be deemed to require a change in
plans, construction or designated use of any building on which actual
construction was lawfully begun prior to adoption of this Code and/or upon
which actual building construction has commenced and continued in compliance
with the building code and applicable provisions of this Land Development Code.
"Actual construction" is defined to include the placing of materials
in permanent position and fastened in a permanent manner. Where demolition or
removal of an existing building has been substantially begun preparatory to
rebuilding, such demolition or removal shall be deemed to be "actual
construction," provided that all such acts have commenced and continued in
compliance with the building code. In addition, nothing in this division shall be
deemed to require a change in plans, construction, or designated use of any
building on which a building permit or certificate of use and occupancy has
been applied for prior to the date of the adoption of this Code. This division
shall apply to any amendment to the Land Development Code in the same manner as
the Code's original adoption. Where building permits or certificates of use and
occupancy are sought in compliance with this division, the applicant shall have
a period not to exceed six months after the effective date of these land
development regulations, or applicable amendment thereto, within which to
obtain a final building permit or certificate of use and occupancy.
(f) Change in nonconforming uses
without structural alteration. If no structural alterations are made, a
nonconforming use of a building or structure may be changed to another
nonconforming use of a similar or higher (more restrictive) classification
under the following conditions:
(1) The change in use shall not intensify
or enlarge the basic use of the building or premises by increasing the need for
parking facilities; increasing vehicular or pedestrian traffic; allowing or
increasing noise, vibration, fire hazard, smoke, dust or fumes; increasing
hours of operation or number of employees; increasing ground coverage or
adversely impacting drainage; otherwise resulting in a more intensive use of
the building or premises; or changing the basic character of the building or
premises unless such action would bring the use further into compliance with
the current provisions of this Land Development Code.
(2) When a nonconforming use of all or
any part of a building, structure, or premises has been changed to a conforming use, that portion
of the nonconformity shall be abandoned.
(3) Abandonment of nonconformity.
If a nonconformity is removed, abandoned, or ceases (except when government
action impedes access to the premises), then any and every future use of the
structure or premises shall be in conformity with the use provisions of the
Land Development Code. All material and equipment associated with the abandoned
nonconformity shall be completely removed from the premises by its owner.
Additional structures that do not conform to the requirements of this Land
Development Code shall not be erected in connection with such nonconformity. A
nonconforming use shall be considered abandoned or having ceased when the land
use has been discontinued for a period of 12 months as indicated by one or more
of the following:
a. Allowing licenses or certificate of
use to lapse;
b. Removing meters;
c. Not maintaining structure in a
habitable condition;
d. Not making unit available for
occupation (i.e., advertising or marketing through a realtor or other agent);
e. Failure to perform actions pursuant to
the terms of an active building permit; or
f. Failure to occupy the site.
Once again the Montessori schools get punished for the alleged sins of Palmer. Why does Palmetto Bay continue to punish everyone just to go after Palmer?
ReplyDeletePalmetto Bay, the village of the empty nesters. Children may visit only per the zoning schedule.
ReplyDelete