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Zoning Appeals Law Update: Miami PZAB Applies Incorrect Waiver Standard

Anthony De Yurre

In CUBE 3585, LLC, v. CITY OF MIAMI, et al., Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County[i], an appeal was filed by Cube 3685, LLC (“Cube”) from proceedings involving application for a zoning waiver[ii] for a demolition permit with the required tree survey to demolish the single-family residence (cottage).

The City of Miami Zoning Administrator (“Zoning Administrator”) approved the Waiver with conditions under section 3.3 Appendix A of Miami 21 Zoning Code (“Zoning Code”)[iii] to allow the demolition. That decision was successfully appealed, under Article of the Zoning Code to the Planning, Zoning, and Appeals Board (“PZAB”) of Respondent City of Miami (“City”).

The Court found that the PZAB departed from the essential requirements of the law by utilizing intent provisions of the Zoning Code as a standard, thereby imposing an arbitrary and impossible standard for the issuance of a Waiver in reversing the Zoning Administrator’s decision. A statute or ordinance should not be interpreted in a manner that would lead to an absurd result, an unreasonable consequence, or an impossible standard[iv].

First, while Article of the Zoning Code applies to Waivers generally, it states that “the specific parameters of each Waiver are further described in the article in which the Waiver appears.” The Zoning Code explains that once an application for a Waiver is submitted “[t]he Zoning Administrator shall review the Waiver application, as required under this Code.”[v]

Respondents argued that the Waiver must satisfy a “practical difficulties standard” under the Article, but the Court found Cube correctly argued that the phrase “practical difficulties” in Article of the Zoning Code is located within an intent provision and is not a standard or criteria to seek a Waiver. By utilizing the phrase “practical difficulties” as a standard the Court found the PZAB created an impossible standard for the issuance of a Waiver. The Zoning Administrator testified below as to the article on Waivers that it has its specific review criteria, which refers the reader to the NCD, and is read in tandem with the preservation of the area. NCD is an “umbrella land use designation overlay” which allows for the tailoring of master design guidelines for any area that meets certain criteria.

Secondly, Respondents argued that the Waiver must satisfy the specific standard under section 3.2, Intent, Appendix A of the Zoning Code to “preserve the historic, heavily landscaped character of Coconut Grove’s residential areas” and “protect the architectural variety within the unique single-family neighborhood that comprises Coconut Grove.” The City specifically argued that the intent provision of the NCD-3 zoning overlay for conservation allows an alternative to historic preservation by requiring the preservation of the cottage as historic.

The Court found that Cube correctly argued that section 3.2, Intent, Appendix A, of the Zoning Code is not a discernable professional standard [criteria] for the issuance of a Waiver. The intent provision of the NCD-3 does not set forth sufficient standards or criteria. Rather, we agree that Cube correctly argued that the intent provision of the NCD-3 is to preserve the green space or “historic, heavily landscaped character” but allows a review of a Waiver to demolish structures within the NCD-3 and states nothing about preserving structures. Additionally, the Court agreed that Cube also correctly argued that the term “architectural variety” is not a criteria and the Zoning Administrator confirmed that “architectural variety” is not considered.

Importantly, the Court further found that Cube correctly argued the intent provision of the NCD-3 zoning overlay is not an alternative means for historic designation because it does not include notice and any due process, nor provisions that prevent causing a hardship by the designation process under chapter 23, Historic Preservation of the City of Miami Code. The language of section 3.2, Intent, Appendix A, of the Zoning Code should be interpreted as merely setting out broad policy objectives embodied by the NCD-3, and those objectives are implemented by the sections that come after it.

Ultimately, the Court found that a Waiver is based on the standards for that Waiver; and concerning the standards for this Waiver, the Zoning Administrator was required to only consider tree preservation and Article 2 of the Zoning Code in the NCD-3. Accordingly, the Court held that the PZAB departed from the essential requirements of the law and applied the wrong standard by following the intent provisions of the Waiver and NCD-3 zoning overlay[vi]. The Court also found that by utilizing the intent provision of the NCD-3 as a standard, which provides no framework for preserving historic structures, that PZAB made it practically impossible to obtain a Waiver for demolition of any structure within the NCD-3 regardless of its actual condition, significance, or character.

Accordingly, for the reasons stated herein, the Court granted the Petition for Writ of Certiorari and quashed the PZAB resolution.

[i] (Case No. 18-050 AP)[26 Fla. L. Weekly 939a]

[ii] [No. 2017-0102]

[iii] Ordinance No. 13114

[iv] Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1270 (Fla. 2008) [33 Fla. L. Weekly S493a]

[v] Article of the Zoning Code.

[vi] See Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978); Metro. Dade Cty. v. P.J. Birds, Inc., 654 So. 2d 170, 175 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D903a].

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