Palm Beach staff have proposed a process they say would curb the number of building applications that include requests for zoning code variances and reduce the town’s chances of getting sued.
However, the proposal of a “waiver” request process for construction applications that slightly differ from the town’s zoning code worried Planning and Zoning commissioners, who questioned whether the new request could open the door to unabated commercial development.
“I’m very concerned this is opening a door to say, ‘why have a code?’” Commissioner William Gilbane said during the board’s June 26 meeting.
But James Murphy, assistant director for the Planning, Zoning and Building Department, said the proposal aims to address requests for minor exceptions to the zoning code that do not feature a hardship, such as a bathroom expansion that may exceed the code’s setback limits. They would still be reviewed by the Town Council, he said.
That way, when the council gets a variance request, “it’s a really big deal,” Murphy said.
“We can all agree 150 variance (requests) a year is not healthy municipal government and zoning, it’s just not — it’s indicative of a problem,” he told the commission.
Murphy said the proposed system would reserve variances exclusively for projects with a hardship, or restrictions caused by the code that are so unreasonable that it would make a project difficult if not impossible to complete or cause the property to be unusable.
The meeting was the latest in the town’s efforts to update its decades-old zoning code.
Under the current town ordinances, a variance is a type of request that seeks town approval for a project that departs from zoning code regulations, including limits to a building’s setbacks, height and lot coverage. To be granted, it must satisfy a list of criteria, which include a hardship.
The new proposal raises the threshold for a variance defining tying the request to the existence of a hardship, which is featured as its own term in the draft zoning code. The merit of the hardship would be reviewed by town staff in a report, and by the Town Council, Town Planner Jennifer Hofmeister-Drew said.
But Commissioner Michael Vincent Spaziani worried that the draft’s definition of a hardship is too vague and needs an easy-to-understand criterion.
Commission Chair Gail Coniglio questioned why the town needs a new system for minor deviations to the zoning code, if they are regularly granted by the Town Council through the variance process.
The waiver system would give the town much needed legal protection, since Palm Beach can be sued for granting a variance without a hardship, said Peter Henn, attorney for the town.
That occurred recently, when a group of residents sued the Palm Beach and the Palm Beach Synagogue after the Town Council voted to approve an expansion project that included nine variance requests. The lawsuit claims the town granted the variances without the synagogue proving a significant hardship.
“If the town council is going to approve 95% of the variances requested, we would like them to do it in a legal fashion, by calling it a waiver and not a variance, and we want to save a variance for those tough times when it truly is going beyond the guardrails we will set up for the waiver criteria,” Henn said.
Murphy said the waiver process would have strict guidelines. Beyond the Town Council review of those requests, he said the waiver system also could include provisions like a requirement to notify neighboring property owners and seek their consent for the request.
Commissioner Jorge Sanchez said he was in favor of the change, since it would reduce the town’s chances for getting sued over granting a variance without a hardship.
Coniglio said she would support the addition, so long as developers were barred from applying for both a waiver and variance for the same project.
The variance discussion came during a review session where staff also introduced 10 new or modified terms to the zoning code. They included replacing “special exception use” with “conditional use” and replacing “gross leasable area” with “gross square footage” as the new measurement tool for commercial developments. Staff also added “town resident” as a term in the zoning code, as well as three new streamlined definitions for the types of town-serving commercial establishments allowed.
The Planning and Zoning Commission’s Aug. 5 meeting will center on a review of the draft code’s regulations for commercial uses.
Diego Diaz Lasa is a journalist at the Palm Beach Daily News, part of the USA TODAY Florida Network. You can reach him at dlasa@pbdailynews.com.
This article originally appeared on Palm Beach Daily News: Palm Beach staff pitch new system for minor zoning exceptions to limit variance requests
Reporting by Diego Diaz Lasa, Palm Beach Daily News / Palm Beach Daily News
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