PB NPO: 11 Warnings by Village Attorney
As part of the agenda package for the August 8, 2012 workshop, the Village Attorney offers warnings to the council on 11 occasions regarding various problems she identified in Councilwoman Lindsay’s proposed “Neighborhood Protection” ordinance.
Key: Staff recommends double-bracketed language be deleted and underlined language be added. Village Attorney and staff comments appear in italic. SDM’s comments appear in bold:
- Sec. 2 (a) Coincident with submission of an application for non-residential use on a single-family zoned property, the applicant shall present his planned development to the public in a zoning workshop. [[Such application shall not be considered or processed by Village staff until the conclusion of the zoning workshop.]] The workshop to be held within 60 days (notice compliance for workshop as provided in 30-30.11), and add such a category to the notice spread sheet. This change may be necessary because should such a workshop fail to reach a final conclusion, the applicants due process right may be violated. SDM Hint: When a lawyer warns a council member that the legislation may be violating an applicant’s due process rights, she means that the legislation violates the U.S. constitution. Each member of council swore upon taking office that she would support and defend the U.S. constitution. Therefore, voting for an unconstitutional provision is a violation of her oath of office. SDM’s Advice: For the love of all that is holy, listen to your lawyers!
- Sec. 2(c) In the event there are irresolvable issues or modification requests raised during the workshop, a COMMUNITY RELATIONS COMMITTEE [[shall]] will be established at the workshop (if possible). Otherwise, the committee will be established within 10 days of the workshop. The Planning and Zoning Director shall seek three volunteers (with preference to persons living within the notification radius). Three (3) representatives shall be appointed to the committee by from the applicant.[[ , and the Planning and Zoning Director shall make up the remainder of the committee.]] This change may be necessary because should such a workshop fail to reach a final conclusion, the applicant’s due process right may be violated. Village staff should not be a member of the Community Relations Committee as staff must be able to use professional expertise, training, and the objective criteria of the code when evaluating a development application, and should not be part of such an ad hoc consensus building group. Legal challenges could arise if staff were a part of the proposed committee. Futher, selection of committee members by the P&Z Director may impose the same conflict as such appointments may be considered of a political nature and thus such action more appropriately situated with the Mayor and Village Council. A time frame for the committee’s review should be established so as not to infringe upon the applicant’s due process rights. Finally, there are potential Burt J. Harris Act and RLUIPA issues with regards to this extraordinary review. SDM translation: Hey Council! Don’t try to shed your job to some unelected committee that has no deadline to make a decision. You are the elected officials. It’s your job to decide these issues, not some committee’s. Fix this crap or we’re looking at one hell of a lawsuit! SDM Advice: See #1 above.
- Sec. 2(d) The committee is to meet to resolve issues identified above at (c) and more specifically, any issues not addressed by Village Code. The committee may choose to hold additional meetings. The application may not proceed to a public hearing until the committee has submitted its recommendations. [[; however, staff may process the application (without recommendations) after the Zoning Workshop.]] There must be a time frame for holding the committee meetings, with a final report, and either a vote on report, or execution of the report by a majority of the members. The meetings must be held in the sunshine. Need to determine if there should be additional public notice under 30-30.11 relating to advertising and if additional public input should be provided at these meetings. SDM translation: This committee idea is getting worse before it gets better. What you are doing here is creating another layer of bureaucracy AND vesting excessive and unnecessary authority with a bunch of unelected part-timers who may not even hold proper meetings. Danger, Will Robinson!
- Sec. 3. PRECONSTRUCTION – CONSTRUCTION – BUILD OUT CONDITIONS: Proposed conditions to be added as requirements to review process: Please note that the Village’s review of any application is ordinarily under a site plan and not a construction document. A site plan is more general in that it delineates setbacks, and general locations, but not the detailed plans needed for construction. As such, much of the preconstruction terms identified below would be utilized or created during permitting and not during site plan approval. To do otherwise may inordinately burden the applicant for what is intended to be more of an establishment of a broad development plan. SDM translation: There’s a reason the professionals draft ordinances. For example, professional staff knows when it is appropriate and legal to impose regulations. Also, when we say your idea “may inordinately burden the applicant,” we are saying code words that really mean “watch out, you are treading very close to a violation of a federal or state constitutional provison and/or a federal or state law.” SDM Says: It’s time to take the amateurs out of the equation and let the professional staff do the job they are paid to do.
- Sec. 3(g) Materials or vehicles shall not be parked, placed, or stored on public right of way except under the following conditions: mobile equipment may be parked during the permitted hours of construction. Materials may only be stored on Right of Way with permission of the appropriate PW Department [[Planning and Zoning Director]], with a time limit reported to Council and public. If county road, then Village lacks ability to regulate. SDM translation: You may think you control every little corner of the village, Ms. Lindsay, but you don’t.
- Sec. 3(h) No trees shall be removed unless a building permit and tree removal permit (if required) have been secured for the construction of the work requested. As a practical observation, tree removal permits are issued under County auspices. A tree removal permit is not contingent upon a construction permit. So, a person could go in, prior to site plan application, and remove all the trees provided they comply with the County’s Code. SDM translation: Duh.
- Sec. 3(k) The emission of dust, dirt, fly ash, fumes, vapors or gases which can cause any damage to human health, animals or vegetation or other forms of property or which can cause any soiling or staining of persons or property at any point beyond the lot line of the use creating the emission shall be prohibited. Derived from Coconut Creek code. Enforcement may be an issue unless the emission is blatant and excessive and of long duration. SDM Wonders: How many times has Coconut Creek been sued over this novel concept? Did they win? Did anyone ask before proposing to write this stuff into Palmetto Bay’s code or will village residents act as guinea pigs again?
- Sec. 3(l) Odorous material released from any operation or activity shall not exceed the odor threshold beyond the lot line, measured either at ground level or habitable elevation. Odor threshold is defined as the lowest concentration of odorous matter that produces an olfactory response in normal human beings. Derived from Coconut Creek. Enforcement may be an issue unless blatant, excessive, and of long duration. SDM Wonders: What the heck is the obsession with Coconut Creek? Where the heck is Coconut Creek anyway?
- Sec. 10(c) Operational hours of the non-residential use shall be such that the impact upon the immediate residential neighborhood is minimized. Don’t know what this means or how to enforce. SDM Observation: The three amigos don’t seem too worried if a provision is unenforceable so long as the SOPs like it.
- 10(d) Where services areas are provided they shall be screened and so located as not to interfere with the livability of the adjacent residential properties. Don’t know what this means or how to enforce. SDM Says: “Livability” is not a term of art. In fact, to give you an idea of how theoretical “livability” is as a concept consider this definition:
A shared, definitional framework for livability is established by the Interagency Partnership for Sustainable Communities, formed in 2009. This collaboration of U.S. DOT, EPA, and HUD set forth the following six livability principles:
-Provide more transportation choices.
-Promote equitable, affordable housing.
-Enhance economic competitiveness.
-Support existing communities.
-Coordinate policies and leverage investment.
-Value communities and neighborhoods.
See how easy it is to make an enforceable law?
- 14(b) No administrative variances or other waiving of any requirement of this ordinance shall be granted except as approved after a public hearing by the Village Council. Not sure this is currently permitted under zoning code. May be a non-issue. SDM can’t translate the attorney’s comment here because they appear to be internally inconsistent. The current rule on variances is that the village only permits them if the property itself causes the need for a variance. For example, if the property is triangle-shaped, the property owner may not be able to meet all setbacks so a variance would be available to promote fairness. Councilwoman Lindsay seems to be saying that if the applicant is an institutional user (a church, for example), no variance will be considered under any circumstances. SDM Lawyer Alert: Can a village permit variances for one property owner and deny variances for another property owner merely based on the use of the site?