Monetizing the Palmetto Bay zoning process and removing certainty. Hardship variance goes bye, bye, replaced with a liberal variance process that includes significant discretion known as “administrative”. A code is only as good as the enforcement. The new 2020 downtown code will be very flexible due to the variance procedures revised in 2019.
Little attention was paid to significant changes to the Palmetto Bay code regarding variances. Any door 'closed' by the 2020 code clearly can be opened through this 2019 standard variance process. Note that there is no such thing as a strict code where it can be undone through variances. This is a classic case of go ask mommy (the granter of variances) for permission if you don’t like that daddy (the code) tells you (the developer) no. In other words, what you think was taken away (or lowered) under the 2020 code can be given back through an administrative or council variance. Sleight of hand, bait and switch.
I championed and established the original process regarding hardship variances in Palmetto Bay. Variances were limited in that they were granted under the original, now former, Palmetto Bay standard only when a true hardship associated with a property was preventing the property from meeting the requirements of the zoning ordinance. The code ruled. In other words – adjustments were limited to what was required to allow an odd property to build to what is intended by the code – this includes design standards. It served Palmetto Bay well from enactment until it was untimely dismantled in 2019. This is, or was, a strict standard. That must be why the current mayor and council determined that the hardship standard had to go and be replaced with something that would allow a case by case reconsideration of the code they ultimately enacted in July 2020.
The changes to the Palmetto Bay variance rules sailed quietly under the radar under the Cunningham administration in ordinances 2019-09 and 2019-13 (click the links to read the entire changes). There was never any explanation to the public why these changes were needed and who would profit by these changes (my opinion: developers, not adjoining property owners).
This new/current Palmetto Bay variance procedure allows actual deviation (relief) from the July 2020 downtown code at the discretion of either administration or the council (if it gets that far). Palmetto Bay’s new rules on variances are very liberal – and, most importantly, allow for changes of building heights. This allows for additional floors and greater density. Development is now controlled by variances, not the code.
I have always been of the opinion that variances should not be easily or lightly granted and a variance should be the exception not the rule. There are numerous conflicts in the most recent code approved by the Palmetto Bay Village Council in July 2019. In fact, Council Member Patrick Fiore recently pointed out that many of these issues can be (actually, will need to be) resolved through the soft variance standard enacted in 2019 under the Cunningham administration. In my opinion, this is like hanging a huge 'open for business' sign in big neon letters to developers, letting them know that the code is merely aspirational, little more than a great political sound bite. The huge risk is that the Palmetto Bay planning process is now monetized where what is built is not dependent on what is written in the code, but how lawyered up developers are willing to push.
This results in little to no certainty for residents in what will end up at any specific property. At least not until plans are approved. The question is, after reading these two ordinances, whether the variances will be granted 'administratively' (behind the scenes) or whether residents and adversely affected property owners will have their day in court at a public hearing before the Village Council.
We shall see. Stay tuned.
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