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Daily Business Review - March 11, 2002

Court Ruling May Puts a Halt to the Issuance of Zoning Variances in Older Miami Dade Neighborhoods

By: Terry Sheridan

All that Victoria Brennan wants is a one-car garage about seven feet closer to her neighborÌs property line than local zoning allows in Miami-Dade County.

To get that requires whatÌs called a nonuse variance, a common zoning tool that helps bend the rules for property problems like BrennanÌs. But what seemed an easy quest in an older neighborhood near South Miami where other homeowners had been allowed rule-bending turned into a court battle.

Four years later, Brennan still doesnÌt have her garage.

Instead, sheÌs triggered what some attorneys liken to a legal land mine in county zoning law. And some figure it has statewide ramifications.

BrennanÌs case worked its way to the 3rd District Court of Appeal late last year. Judge John Fletcher, in what attorneys say is a precedent-setting concurring opinion, not only skewered the standards for zoning variances like the one Brennan wants as too flexible, but also questioned the constitutionality of the Miami-Dade zoning code.

It should be noted that Fletcher is considered a land use and zoning expert. He did not return a call seeking comment on his opinion.

ÍI write this concurrence » to remark on the failure of the Miami-Dade County Code to provide any meaningful standards to guide county boards in approving or denying ËnonuseÌ variances,Î he wrote.

Citing several court cases, the judge wrote that the codeÌs language Íplaces the quasi-judicial zoning boards in a position where they are able to amend the zoning regulations within the various categories » on specific applications so as to create nonuniform requirements for properties within the same zoning category. Obviously amending the zoning regulations themselves is a legislative function which cannot be delegated to a quasi-judicial board, including the county commission when it is sitting as a quasi-judicial body. The nonuse variance code provision is thus unconstitutional as lacking sufficient guidelines.Î

The opinion has thrown pending projects into legal limbo, and put new urgency in a rewriting of the county code already under way for about two years, attorneys say.

WhatÌs more, with growing efforts to redevelop older areas and the zoning changes that often involves, the courtÌs opinion could carry weight in challenges throughout South Florida and statewide, says Clifford Schulman of Greenberg Traurig, whose clients include prominent developer Michael Swerdlow.

ÍThe ruling has dramatic implications,Î says Stanley Price of Bilzin Sumberg Dunn Baena Price & Axelrod, who wrote the now-questionable code as an assistant county attorney. ÍThere hasnÌt been one major [development] approval in Miami-Dade County in the last 20 years that did not have at least one nonuse variance attributable to it.Î

And just one is all Brennan wants.

In late 1997, Brennan bought her 50-year-old home in the Snapper Creek Groves area and began an extensive renovation.

That included adding a garage. But where she wanted to put it would bring the garage within about eight feet of her neighborÌs property line, instead of the code-required 15 feet.

The neighbor objected, and the local zoning board twice denied BrennanÌs request for a variance. So Brennan appealed that decision to the Miami-Dade Circuit Court and won. The county then appealed to the 3rd DCA, saying the zoning boardÌs decision should be reinstated.

Late last year, the appellate court quashed the circuit courtÌs ruling, saying the lower court reweighed, instead of reviewed, the evidence in the case.

The case is now back in Miami-Dade Circuit Court, where the court is to apply the correct test.

Brennan, an assistant state attorney in Miami, could not be reached for comment. Her attorney, H. Scott Fingerhut in Miami, declined to comment because the case is pending.

But itÌs Judge FletcherÌs opinion that has so intrigued developers and attorneys, says assistant county attorney Joni Armstrong Coffey.

The time-honored standard for issuing nonuse variances has been an unnecessary hardship, meaning a property condition out of the ownerÌs control makes the site almost impossible to use the way it is zoned. Thus, the need for a variance.

But Miami-DadeÌs code was amended about 20 years ago to eliminate the hardship test. The judge wrote that the countyÌs code now fails to provide Ímeaningful standardsÎ for nonuse variances.

That makes the codeÌs language too indefinite and the requirements too flexible, say attorneys about the opinion.

ÍWhat [the opinion] has done is essentially put a freeze on development in the county,Î says attorney Price.

HeÌs already recommended that a charter school application heÌs handling be withdrawn because of what would be considered a setback problem under the opinion.

Schulman of Greenberg Traurig, who has several projects he wouldnÌt identify that are affected by the opinion, says the Miami-Dade county attorney now is telling developers to proceed with their projects at their own risk.

WhatÌs more, while the 3rd DCA covers Miami-Dade and Monroe counties, the opinion easily could have whatÌs called Ípersuasive authorityÎ in zoning matters throughout the state, Schulman says.

Attorneys familiar with zoning in Broward and Palm Beach counties agreed, but added a caveat.

In Broward, for example, zoning variances typically are handled through waivers and site plan approvals or through other categories that avoid the tough hardship test, says attorney Dennis Mele of Ruden McClosky Smith Schuster & Russell in Fort Lauderdale.

The other tactics allow ways to deviate [from the zoning] without a variance, he says. A developerÌs request to reduce parking requirements in Boca Raton, for example, would be called a technical deviation.

But attorney Don Hall, of Gunster Yoakley in Fort Lauderdale, and Price both question the legality of the judgeÌs opinion.

ÍThe judge says that the only standard [for a nonuse variance] is hardship, and that is incorrect,Î Price says. ÍIt belies all treatises on the subject.Î

Florida law is contrary to what Judge Fletcher suggests, Hall adds. ÍI think the necessity of tightly defined criteria would be a major change, and I donÌt think that is the state of law today.Î

Meanwhile, the matter has fueled Miami-Dade CountyÌs ongoing rewrite of its zoning code, Coffey says.

ItÌs particularly timely because quasi-judicial local zoning boards have blossomed, yet they cannot make law, she says.

ÍThe court is saying there is too much flexibility for the development community and neighborhood boards to be sure what the law is,Î she says.

That may help explain BrennanÌs awning.

According to court documents in BrennanÌs case, she now has a retractable awning that extends over where the garage would be. It actually extends closer to the neighborÌs property than the garage would.

But because the awning is over a door or window, which zoning rules require, it doesnÌt need a variance.

Any questions?