To the would-be developer of seven new houses, it was a routine “ministerial” decision.
To neighbors, it was a seal of approval on new “McMansions.”
But to South Miami city commissioners, a Tuesday night decision on whether to waive land-use regulations was a case study in confusion.
The City Commission cast six votes on the matter, with one commissioner switching sides twice — the second time after the city attorney said his first flip was invalid because it was based on a private conversation during a break in the quasi-judicial proceeding, in which commissioners are supposed to act like judges and base decisions only on facts presented in public.
In the end, the commission rejected one of the developer’s two requests, and the developer’s attorney threatened to sue.
At issue is a development company’s request for a “waiver of plat” so it could more easily build houses on a 2.7 wooded acres at 6520 SW 56th St. According to the developer’s lawyer, denial won’t stop the project, but will make it take longer and cost more.
The developers’ attorney, Melissa Tapanes Llahues, has said that the decision to grant or deny a waiver of plat is a “purely ministerial or administrative function,” and that “a local agency may only deny a plat if the agency demonstrates that the application did not meet the objective legal requirements for approval.”
In essence, she was saying there is little room for judgment or discretion on the part of the commission.
But neighbors worry that the houses would destroy wildlife habitat and be a poor fit for the neighborhood.
On Tuesday, two residents showed up to speak in favor of the application, including a friend of one of the developers. They said they wanted new homes in the area.
About half a dozen people spoke against the waiver, saying they felt the proposed lots did not conform to the character of the rest of the neighborhood.
The shape and size of the lots prompted a planning board member who recommended denial, Yvonne Beckman, to offer up a challenge and reward to the commissioners: If they can compare the “five narrow, skinny lots” to “the entire city of south Miami and find a similar lot, I’ll give you $10.”
“If they would put four houses in there instead of trying to stick in five, those would be more in character,” Tina Pellicane said, referring to the five proposed lots on the south side of the property. She also said the character of the neighborhood was based in part on the significant tree canopy on that site. “In a sense, building any homes on it all is destroying the character of the neighborhood,” Pellicane said.
One of the criteria for approval of a waiver of plat under the city’s land-development regulations is that the building site created is “of the same character as the surrounding area.”
The city’s planning staff analysis of the second waiver application stated that while the proposed lots are larger than most of the surrounding properties (another criterion), the proposed 75 foot frontages “are potentially not of the same character as the surrounding area.”
The “waiver of plat” application process has been anything but expeditious. It was approved by the city’s planning board twice: first unanimously, and then 3-2 after the commission had kicked the issue back to the board to consider anew.
Tuesday’s commission meeting had its own share of flip-flop votes.
The commission took a break after it approved in a 3-2 vote the first application to create three lots—two roughly 124 feet by 100 feet on Miller Drive, and one lot that is 75 feet by about 246 feet.
When the meeting started up again, Commissioner Valerie Newman, who (along with Commissioner Bob Welsh) voted against approval, requested reconsideration of the application to add conditions to the approval, including the offered setbacks and demolition of existing structures. While the conditions were approved unanimously, when the Commission took a vote on the entire application as a whole again, Commissioner Walter Harris, who first voted for approval, voted for denial, resulting in a 3-2 vote to reject the waiver.
Tapanes Llahues was flummoxed.
“That was insane what just took place,” Tapanes Llahues said.
When asked by City Attorney Thomas Pepe to explain his rationale for voting against the waiver, Harris said “I found it out of character and the more time I thought about it the more I just found it out of character.”
Before the commission voted on the second application, Pepe revealed some members of the commission, including Harris, received ex parte communications from members of the audience during the break.
Harris said a member of the audience had spoken to him about her concern over his vote, and that a friend of his, planning board member Yvonne Beckman, had given him a dirty look, though she did not say anything.
“I changed my vote because the opportunity came back,” Harris said. “I was fairly unsettled about the vote in the first place, and the opportunity to vote again came back and I just considered that God’s way of saying I could vote the way my conscience wanted me vote.”
Pepe said the private communication was inappropriate. At the advice of the Pepe, the commission voted again on the conditions and approval for the first application.
After the second application failed 2-3 with Harris voting against it, the commission reinstated their approval of the first application.
Tapanes Llahues told the commission that the city’s rejection of the one application would cost her client time and money because the company would now have to go through a longer approval process with Miami-Dade County. Under the circumstances, the city could be liable for these losses, she said
“Do you understand the liability that you’re presenting towards the city?” Tapanes Llahues asked commissioners, after they reversed their approval. “That this application, exactly as presented before you today, will be approved through the [county] subdivision process and that this commission will be held liable for the loss of profits, the time wasted as part of this ridiculous occurrence that just occurred here?”
When the hearing on the second application began, she added: “Negligence on behalf of individual commissioners and this commission as a whole will only require your city residents to pay for your negligence in terms of liability.”
One resident didn’t see liability as a reason to vote one way or another, but rather that the commission should consider the merit of the waiver in the context of applicable land development laws.
“That somebody votes because we’re afraid that we’re going to get a lawsuit?” Maria-Teresa Beyra asked. “I am shocked because I don’t see anywhere in the ordinance or in regulations that that’s a consideration you should have.”