Councilman Patrick Fiore placed an item on the Monday council agenda to discuss the village’s variance procedure. SDM has discussed the village’s very strict variance process several times and appreciates Mr. Fiore’s efforts at finding a middle ground on the issue. After watching the discussion, SDM did a little research, which you may find interesting or put you into a coma.
A variance is required whenever a property owner’s plans would not conform to the code. Examples of residential variances were discussed recently in our post titled PB: Crushing Dreams Since 2002. Variances are also requested by commercial property owners when their development plans do not comport with the code. Sometimes these variances are minor – someone wants to place a pool inside a setback. Sometimes they are major – a business wants to provide fewer parking spaces with the result that cars park all over the public right of way.
The problem for any code writer is trying to anticipate all the variations the human mind can conceive and then incorporating the acceptable options into a written, prescriptive code. Newly formed municipalities and the pols that lead them often want to be “tough on developers,” so they adopt both a very strict code and a very strict variance procedure. Pinecrest and Palmetto Bay both fell into this trap.
The inevitable result is bad lawmaking and inflexibility to address what are often neighborhood-level issues. So, how does a local government deal with the conundrum of wanting to be objective yet humane?
One approach is what Palmetto Bay has taken. Lay out the code and tell anyone who wants a minor variation to go pound sand. An alternative approach can be found in Palmetto Bay’s neighbor to the south, Cutler Bay, which adopted the following variance approval standard:
Owners of lands or structures may apply to the Town Council for a variance from the requirements or restrictions of the Land Development Regulations; except that no variance for use or density issues shall be considered. Variances shall be submitted in writing through the Department, stating the specific variance(s) requested. Each variance of a code requirement necessitates a separate variance application and process. The Town Council, after a public hearing, may approve, approve with conditions or deny the application.
A. Application. An application for a variance shall include a written statement by the applicant with supporting explanation and evidence regarding the following requirements:
1. The particular provision of the Code which prevents the proposed construction on, or use of the property.
2. The existing zoning of the property, including any previously approved conditions, or modifications.
3. The special circumstances, conditions or characteristics of the land, building or structure that prevent the use of the land in compliance with the terms of this ordinance.
4. The particular hardship that would result if the specified provisions of the ordinance were to be applied to the subject property.
5. The extent to which it would be necessary to vary the provisions of this ordinance in order to permit the proposed construction on, or use of, the property.
6. A disclosure statement by the parties with at least 5 percent interest in the project shall be signed by the applicant and notarized.
B. Approval Standards. The applicant shall have the burden of proof and provide a written statement describing the manner and degree of compliance with the following standards:
1. The variance will result in conditions that maintain and are consistent in all material respects with the intent and purpose of these Regulations, and that the general welfare, stability and appearance of the community will be protected and maintained.
2. The variance will be compatible with the surrounding land uses, and otherwise consistent with these Regulations and the Comprehensive Plan, and will not be detrimental to the community.
3. That the request for a variance is not based on an economic disadvantage to the owner or occupant of the property upon which the variance is sought.
Compare that reasonable standard to Palmetto Bay’s heartless version:
Village council action and criteria for approval. After the public hearing, the village council shall adopt a written resolution granting, granting with conditions, or denying the variance. In order to authorize any variance from the terms of this division, the village council must determine whether the following criteria have been met:
(1) That the variance is in fact a variance allowed in this division and is within the province of village council.
(2) Existence of special conditions or circumstances. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.
(3) That the special conditions and circumstances do not result from the actions of the applicant.
(4) That granting the variance requested will not confer on the applicant any special privilege that is denied by Chapter 30 to other lands, buildings, or structures in the same zoning district.
(5) Financial difficulties or economic hardship shall not be a factor for determining whether a variance should be granted.
(6) That literal interpretation of the provisions of Chapter 30 would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of Chapter 30 and would work unnecessary and undue hardship on the applicant. The purchase of property which has an illegal nonconformity with Chapter 30 shall not be considered a hardship for the granting of a variance, nor shall conditions peculiar to the property owner be considered.
(7) That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure.
(8) That the grant of the variance will be in harmony with the general intent and purpose of the comprehensive plan and Chapter 30, and that the variance will not be injurious to the area involved or otherwise detrimental to the public welfare.
(9) In granting any variance, village council may prescribe appropriate conditions to mitigate the proposed variance and to ensure safeguards in conformity with the comprehensive plan and Chapter 30 or any other duly enacted ordinance. Violation of conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and shall nullify the variance development approval.
There procedures are similar in many respects, but SDM has tried to highlight a subtle difference and a monster difference. Cutler Bay’s A.3. requires special circumstances, but focuses on the individual property as opposed to every property in the same zoning district as Palmetto Bay does. This difference allows the Town of Cutler Bay to look at a variance request in the context of a neighborhood where Palmetto Bay’s council must look at every property with that zoning code, which can include neighborhoods literally on the other side of town.
The monster, killer difference – almost like a flying, vampire fish – is the requirement that the owner not create the condition that the variance is to cure. Cutler Bay residents intentionally granted to their council the discretion to assist a homeowner who may have inadvertently purchased the property with a nonconformity or who may have hired a less-than-diligent contractor who left them with a nonconforming structure or use.
The discretion is limited by Section B, which does not permit economic hardship to be a factor or allow uses that would be detrimental to the neighborhood.
SDM Says: There is no need to reinvent the wheel when the words we need to import into the village code have been carefully constructed by others. We elect our officials to facilitate our lifestyles and to protect our property values. Instead of hiding behind a “strict hardship” standard, it’s time the village council take the responsibility we vested in them and make sound decisions that benefit property owners, their neighbors and the village as a whole. Turning away our neighbors just because their improvements violate some hypothetical aesthetic cannot continue.