How we win the war to Save Our Neighborhoods

By Anthony R Parrish. Jr., Citizen of Coconut Grove, and David Winker, ESQ.

In a prior article, “Winning the War on Neighborhoods” printed in the Jan 13 Daily Business Review, we detailed (1) how the Little Haiti neighborhood is being damaged and potentially obliterated by Special Area Plans (SAPs) and (2) why our Miami 21 building and zoning code (M21) has failed to defend all of Miami’s two dozen unique Neighborhoods.  The tide of this war can be turned through specific tactical changes restoring M21’s intended ability to balance existing community wants and needs with new development initiatives. 

Objective vs Subjective Goals

In general, new developments have objective goals: Bigger, Higher, Denser. Large scale new development emphasizes quantifiable community benefits (primarily increased tax revenue and set-aside “affordable” new apartment units).  Small scale development emphasizes individual  “property rights” and “inevitable change.”  Neither dwells on the impact on existing neighborhoods and their residents. 

Deep-pocket Developers pay professionals to relax objective standards in M21, such as height and density limitations, and also setback and open space requirements. Objective goals are easier to specify, pursue and win than subjective ones. 

The opposition--concerned existing residents--are usually unpaid volunteers untrained in the development process. They have the subjective goal of defending the quiet enjoyment of their neighborhood without rapid change and instability. Their subjective goals include: slowing the pace of market driven gentrification, reducing traffic and congestion, and preserving unique community structures and gathering places (locally owned stores, congregations, schools, parks, etc.). 

Striking a Balance:  Need for Specificity

What does Miami 21 strive to do to strike an equitable balance? First, M21’s “succession” rules require patience.  You normally can apply to “up-zone” only one transect every 18 months and then only if you have 40,000 sq. ft. of land or 200 linear feet of frontage.  The intent of succession is to provide both planned growth and neighborhood stability--gradually. Overall, M21 is intended to give a degree of certainty so everyone will know what to expect when applying for a building permit.  However, M21 is also designed to allow for some flexibility in interpretation. No Code is capable of covering all possible situations, uses and designs.  Nobody chooses to live in boring, sterile places.  Creativity is to be encouraged, not prohibited.  

The problem is not that M21’s 490 pages lack comprehensiveness. Instead we must examine its flexibility of interpretation and how effectively it can be enforced. In a recent court decision,  Cube 3585 LLC vs City of Miami, the Court held that M21’s Intent provisions did not provide sufficient guidance for the denial of a Property Owner’s application for a demolition waiver.  In that case, neighbors had overwhelmingly opposed the demolition of an undesignated historic house.  To follow the Cube decision, we must strengthen M21 to provide more specificity if we also want to protect subjective neighborhood interests.

This requirement for more specificity takes us to M21’s “flexibility” tools: waivers, warrants, exceptions and variances.  All are intended to allow “creative” problem solving. 


Waivers, Warrants, Exceptions, Variances

A Waiver (M21 Art. 7.1.2.5) is not for the use of a property, but is “…to relieve practical difficulties in complying with the strict requirements of the code…but not to allow circumventing the intent of this Code.”  An “administrative waiver” must be reviewed by the Zoning Administrator, and “when applicable”, also be reviewed by the Planning Director for “Design Review Criteria”. After those reviews, “approval shall be granted when the application complies with all applicable regulation”. How or when an administratively approved Waiver of “up to ten percent (10%) of any standard of this Code except Density, Intensity and Height” can be appealed is not specified.  There also appears to be no limit as to the number of waivers for which any applicant may apply. All appeals are sent to the Planning and Zoning Board (PZAB).  The possibility of further appeal is not specified.

A Warrant (Art. 7.1.2.4) allows applications to be submitted for certain uses listed in M21’s Art.4, Table 3 in addition to those that are allowed “as of right.”  Warrants require administrative review by the Planning Director and, if he so recommends, by the Coordinated Review Committee (“CRC”), which is comprised of  various Building and Zoning Department heads. Their decision, yes or no, can be appealed to the Planning, Zoning and Appeals Board (PZAB) and from there to the City Commission.

An Exception (Art. 7.1.2.6) is similar but more restricted than Warrants.  It also permits uses, although it overlaps with zoning when considering existing non-conforming uses, lots or structures (“grandfathering”, Art. 7.2).  “A Use may be permitted by Exception in specific Transect Zones if it conforms to the criteria of (the applicable) M21 Code.”  Exceptions are required when listed in Art. 4, Table 3.  An applicant first meets with the Zoning and the Planning Director, who then may require the application be further reviewed by the CRC. Their  review “shall consider the manner in which the proposed use will operate given its specific location and proximity to less intense Uses…”  Appeal of an Exception decision is to PZAB and  then the City Commission.

A Variance (Art. 7.1.2.7) is the only one of the 4 allowed deviations from the Code where “hardship” comes into play: “A Variance is a relaxation of the terms of the M21’s Code that is permitted only in those exceptional circumstances when such action will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of the Miami 21 Code would result in unnecessary and undue hardship on the property.”  Variances are allowed only for Lot size, Lot Coverage, dimensions of side or rear setbacks, parking and loading requirements, and Open Space requirements.”  Unachievable maximum Density and Height are not grounds for a Variance. There are seven “tests”, all of which an applicant must pass, before a variance can be approved. However, this Article then interjects “Regulations of this Miami 21 Code that are not eligible for adjustment by Variance may be eligible for administrative waiver.”  So, after meeting with both the Zoning and Planning Directors, who forward their recommendation to the PZAB, the decision on the variance can be appealed to the City Commission.

Discretion:  Reasonable vs Arbitrary

As the above clearly shows, permitting under M21 is complex and relies heavily on the heads of Zoning and Planning and their professional staff—as it should.  Review of their decisions rests primarily on the shoulders of ordinary volunteer citizens appointed to the PZAB by the Commissioners and the Mayor—which is better than no citizen review at all. Also, PZAB’s decisions are not final but can be appealed to the City Commission. They often are.  This, too, is as it should be since the Commissioners are the officials elected by the citizenry to legislate the laws, including M21’s. However, the rule of law must equitably govern everyone if it is to govern anyone.  When discretion crosses the line dividing “reasonable and necessary” from “arbitrary and capricious” the trust of the citizenry gets lost. To minimize the potential for both ethical and unethical lobbying efforts crossing this line, appropriate checks and balances must be effective. 

This is where Miami 21 fails adequately to defend Neighborhoods. There is simply too much discretion in the rules governing the granting of Warrants, Waivers, and Exceptions.  Only Variances have “unnecessary and undue hardship” as a requirement, followed by seven additional requirements, all of which must be met.  However, requiring a variance “hardship test” procedure for all departures from the strict letter of the Miami 21 Code would be going too far.  The City has a professional planning and zoning staff that must be allowed to exercise a reasonable degree of discretion to provide the design flexibility a dynamic and growing city needs.

Strengthening Miami 21 and Shifting the Burden of Proof

The task now is to strengthen Miami 21 so that its dual purposes of gradual growth and preservation of Neighborhoods are met while providing the specificity the Cube decision requires. We must begin by amending Article 1 to strengthen the definition of “Neighborhood” so a Neighborhood includes not just the geographical location but also the people who live there.   To give due deference to “preservation of Neighborhoods,”  we also must amend Article 2.2.4, the rule of construction/interpretation for all of M21. This revised language needs to be added by reference into each of the articles for Waivers, Warrants and Exceptions in order to comply with the Cube decision. 

All relaxations of the requirements of the M21 must bear the burden of proof that such relaxation does not impose undue hardship (traffic, noise, defoliation, displacement. gentrification) upon existing neighbors.  Instead, at the permit application stage, shift the burden of proof so that neighbors don’t always have to undergo the lengthy and costly process of appeal. 

Finally, the City Commission can never be allowed to abrogate the rules of Succession (Art. 7.1.2.8) without a 4/5 vote of the Commission.

What happens when Neighborhoods win  

To summarize, do you believe the balance between flexibility in construing the Code has shifted too far in the favor of developers and against preservation of neighborhoods? If so, we need to convince our City Commission that, to get re-elected, they must amend Miami 21 to better balance both the spirit and the letter of the law. A better and happier Miami will result.