The city attorney in Miami, Florida has issued a legal opinion that will send chills through the big box developers preying on small neighborhoods. According to city attorney Jorge Fernandez, if the city determines that a project is incompatible with surrounding neighborhoods, the project can be legally rejected. According to Section 1305.8 of the city’s zoning code, the city has the power to require that new developments be compatible with the look, feel and scale of their surroundings. It provides a checklist of criteria. Fernandez has argued that developers are not entitled to build up to the maximum density allowed in the zoning code, because compatibility impacts also must be considered. Hernandez wrote in a court case involving condominiums, that the city’s code empowers commissioners to reject a building that officials reasonably deem incompatible with its surroundings — because it’s too big, too tall, too bulky or simply clashes architecturally. City Commissioner Johnny Winton, whose district is currently facing a red hot Home Depot proposal, told the Miami Herald that he has long thought the city has the legal power to reject or scale down projects that clash with the character of surrounding neighborhoods. ”I was thrilled to death to read this argument,” Winton told the Herald.“It’s logical to me. It was never completely logical to me before.” But residents in Coconut Grove are wondering if Winton will use the new ruling to force Home Depot to scale down its superstore, or leave. Referring to high rise condos next to single family homes, Winton said, ”It gives me the ability to say no in my district, and I don’t think I will lose,” Winton said. The city attorney’s opinion may give commissioners more clout to control intrusive development, Commission Chairman Joe S??nchez said. ”We’re looking for more design review, more ordinances and ways
to protect residents,” S??nchez said. A new group called Miami Neighborhoods United, responded to the ruling by saying, ”The city administration in the past has created a false impression that a landlord is completely entitled to the maximum available — that all you have to do is suit up, show up, hire the right law firm and permission is inevitable. That’s not correct.” One land use attorney noted,“If they (commissioners) have specific criteria, the law in Florida is that the courts will not interfere in government interpretation of its own zoning code.” Although the decision referred to high rise condos, local citizens are expected to cite the ruling in the Home Depot case in Coconut Grove.
For more background on the Home Depot case in Miami, search Newsflash by “Coconut Grove.” Every city and town should take language similar to Miami’s Section 1305.8. Here is the language from that section on Special Permits: ” 1305.8. Control of potentially adverse effects generally. In addition to the review of detailed items indicated above, as appropriate to the particular class or kind of special permit and the circumstances of the particular case, review for appropriateness shall be given to potentially adverse effects generally on adjoining and nearby properties, the area, the neighborhood, or the city, of the use or occupancy as proposed, or its location, construction, design, character, scale or manner of operation. Where such potentially adverse effects are found, consideration shall be given to special remedial measures appropriate in the particular circumstances of the case, including screening or buffering, landscaping, control of manner or hours of operation, alteration of proposed design or construction of buildings, relocation of proposed open space or alteration of use of such space, or such other measures as are required to assure that such potential adverse effects will be eliminated or minimized to the maximum extent reasonably feasible, and that the use or occupancy will be compatible and harmonious with other development in the area to a degree which will avoid substantial depreciation of the value of nearby property.”
