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February 9, 2010 |
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| June 26, 2007 |
By: Oscar Pedro Musibay |
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Santiago Echemendia
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he city of Miami has not forwarded 67 small-scale changes in its comprehensive plan to the state during the last three years in possible violation of state law.
The omitted filings mean dozens of projects moved ahead during the city’s building boom below the state’s growth-management radar.
The comprehensive plan amendments allowed several projects to move forward despite the fact they did not conform with the city’s comprehensive plan, which is approved by the state.
Comprehensive plans are blueprints for a city’s development. Cities are required to file their plans with the state and guide their zoning codes and development according to the document.
Any zoning approvals that deviate from that plan must be sent to the state Department of Community Affairs for review. In the case of so called small-scale changes, which apply to projects on properties of 10 acres or less, the state usually provides only cursory review and ensures that the project indeed qualifies for the less intense review.
The DCA, which is responsible for growth management, is far more rigorous in its review of larger projects. Those projects also must be reviewed by a host of other agencies including the South Florida Regional Planning Counsel and the state Department of Transportation, a time consuming process that could also make projects costlier.
Developers try to get their projects considered under the small-scale process to avoid more rigorous scrutiny, said zoning lawyer Santiago Echemendia, a partner with Tew Cardenas in Miami.
Still, the city has not forwarded any small-scale changes to the state DCA in several years.
The developments that benefited from those changes included Herald Square, a controversial condo project proposed on land owned by Miami Herald parent McClatchy Newspapers. Others projects that received zoning changes not reported to the state were the 360-unit Paramount Bay condo tower under construction in the Edgewater neighborhood north of downtown Miami and a planned 600,000-square-foot green office at 600 Brickell Ave.
The lack of notice was uncovered by opponents of the Grove Bay Residences condo project approved by the City Commission on Mercy Hospital property in Coconut Grove on April 26.
“They are approving projects where there is insufficient water, transportation, schools, the kinds of things the DCA was supposed to oversee under the Growth Management Act,” said developer John Hinson, who has become an unlikely and outspoken critic of the city’s zoning policies. “The city has done it time and time again.”
City spokeswoman Kelly Penton referred questions to the planning department, but planning director Ana Gelabert-Sanchez did not respond to a call before deadline. City manager Pete Hernandez also did not respond to a call before deadline.
“You are asking questions about actions (or inactions) that took place as far back as 1997, before the manager and many others were even here at the city. This morning will not allow for enough time to retrieve the information and respond to you appropriately,” Penton said by e-mail Monday in response to a request made Friday morning.
Echemendia said the city doesn’t have to transmit small-scale amendments, even if a residential project has more than 10 units an acre as state law specifies if the parcel is within a transportation concurrency exception area or an urban infill and redevelopment area. He said the entire city is covered by exceptions.
The DCA disagrees.
“The city is required to transmit,” Ray Eubanks, plan review administrator at the state Department of Community Affairs, said Monday.
The city was following the small-scale process on development applications under state law, but it still was required to submit changes twice a year as part of its overall amendment transmittal, Eubanks said.
Without the filings, the state doesn’t have “a total snapshot of the city’s plan to do other reviews,” Eubanks said.
That snapshot is getting grainier all the time.
The city of Miami has undergone a massive residential building boom in the last decade. Developers have received approval to build more than 98,000 units since 1995. The projects cover more 700 acres, and many of them required small-scale amendments.
Many of the projects the city is approving through small-scale amendments have been controversial, including the Grove Bay condo in Coconut Grove and the 1,000-unit Hurricane Cove along the Miami River.
Attorney Andrew Dickman sued on behalf of residents opposing three high-rise condo projects on the Miami River including the 1,000-unit Hurricane Cove and a condo project proposed on an acre owned by McClatchy next to the Miami Herald. He raised the impact of small-scale changes in a June 13 letter to DCA Secretary Thomas Pelham.
Dickman, of the Law Offices of Andrew Dickman, called on Pelham to consider the impact in the context of one of South Florida’s worst droughts on record.
“Failure to comply with the rule is troubling enough,” Dickman wrote. “There is absolutely no assessment of the cumulative impact of these seemingly endless small-scale amendments pertaining to availability of potable water.”
Drinking water was a notable issue cited by DCA when the state rejected all but one application last year to develop high-density residential subdivisions beyond Miami-Dade County’s urban development boundary. The line is intended to separate large-scale development from farmland and the Everglades.
The DCA does not have an enforcement mechanism for policing compliance with the statute for small-scale amendments and there is no penalty for cities that don’t comply with the filing requirement, Eubanks said. Enforcement is largely left up to the citizenry through litigation.
Opponents plan to use that power to try and stop Grove Bay from moving ahead, said Lynn Summers, a solo practitioner working for The Vizcayans, a nonprofit museum support group opposed to the three-tower complex.
The Vizcayans already have challenged approval of the Grove Bay development planned by the high-powered Miami-based Related Group and Boca Raton-based Ocean Land Investments with the state and in Miami-Dade Circuit Court. The group takes issue with the lack of notice to the DCA in its challenges to the city’s approval of Grove Bay.
The Vizcayans contend the city is improperly and inconsistently measuring the size of the Grove Bay parcel to benefit the developers. When calculating the size of the buildings that can be erected on the property, the city counts the lot as being 11 acres.
But when determining whether the changes approved by the City Commission should be sent to the DCA for more rigorous review, the city counts the land as being just 6.7 acreas, allowing the developers to avoid stricter state scrutiny.
“The city finds it expedient to talk out of both sides of its mouth,” said John Hinson, co-chairman of a Vizcayans subcommittee on Grove Bay. “It doesn’t want the DCA looking at what they are doing.”
Hinson claims city officials were motivated to undercount the size of projects under review out of fear the state agency in charge of growth management could have halted Miami’s massive five-year growth spurt, which has generated millions of dollars in new taxes for the once financially strapped city.
Although the DCA doesn’t publicly weigh in on changes to parcels smaller than 10 acres, it does require the city to submit the changes to the department.
In an e-mail exchange June 4 between Eubanks and Lewis, Eubanks listed the number of small changes the city has filed with DCA since 1989. None have been filed since 2004, when four changes were filed, and none were filed from 1997 to 2003.
The DCA didn’t prod the city about its filings because it’s not the department’s job, Eubanks said.
But the matter has been referred to DCA attorney Richard Shine, according to Eubanks. Shine did not return several calls seeking comment.
Summers said the city’s lack of filings is important because the DCA is the only agency that can determine whether changes meet its small-scale criteria.
She said she isn’t worried so much about the lack of DCA review for project approval in the downtown and Brickell areas, where zoning already allows tall and dense projects. Her concern is focused on areas like Coconut Grove because of the precedent for bigger developments.
“Where thing gets dicey is when they use this cockamamie formula, where they use gross acreage to calculate a project’s size but use net to determine whether it’s small scale,” she said.
Holland & Knight partner Joe Goldstein said the city doesn’t have much to worry about from potential lawsuits because appeals must be filed within 30 days of city approval of small-scale comprehensive plan amendments, and that time frame has expired on the small-scale amendments.
But Hinson maintains the lack of city compliance shows the city doesn’t want to be held accountable for projects like the 240-unit Grove Bay in a neighborhood dominated by single-family homes.
“This is only one more example of the city of Miami’s repeated failures to comply with the state’s Growth Management Act,” he said. “It shows a pattern of behavior of the city thumbing its nose at the state law.”
Oscar Pedro Musibay can be reached at omusibay@alm.com or at (305) 347-6651.
Correction
The article omitted the first name and title of attorney Lynn Lewis, who is representing The Vizcayans, a group opposed to the Grove Bay Residences condo project. Also, Lynn Summers, a consultant to The Vizcayans, has a law degree but is not a practicing attorney as the article said. /b>
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