3 days ago
Why do Palm Beach Town Hall staff want to limit code-variance requests? Here's the scoop.
In Palm Beach, aging zoning regulations have led to a redevelopment environment in which code-variance requests have become commonplace.
A variance is a request to allow a redevelopment project to deviate from the 'literal interpretation' of the zoning code, according to the town's code of ordinances. During the Planning and Zoning Commission's June 26 meeting, Town Hall staff said Palm Beach receives an average of 150 variance requests annually.
That's an obvious sign that the code needs to be reworked, the commission was told. As part of that effort, town staff are crafting a new "waiver" system to combat the prevalent use of variances.
But why is Town Hall trying to curb variance requests? And why are they often at the center of redevelopment drama? Here's a breakdown.
What does a variance allow a property owner to do?
Variance requests must be approved by the Town Council, which has the right to approve them with conditions or other safeguards.
And while a variance allows a project to deviate from the zoning code, it's not a blank check. The request must 'not be contrary to public interest' and stem from a special condition that would result in 'unnecessary and undue hardship' were the property owner required to follow the code faithfully.
The code's criteria for what constitutes an appropriate variance request requires:
that the special condition fueling the request must be unique to an applicant's land or building, and not applicable to any other property in the same zoning district;
that the hardship was not created by the applicant;
that approval of the variance would not grant the applicant special privileges not afforded to others in the same zoning district;
that denying the variance would deny the applicant rights afforded by others in the same zoning district;
that the variance requested is the minimal deviation possible from the zoning code; and
that granting the variance would not create any detrimental impact to the public.
In other words, a North End homeowner cannot apply for a variance request to convert part of the property into a commercial business, as that scenario is explicitly prohibited in the area's zoning code.
Property owners or their representatives also must request a separate variance for each aspect of a project that deviates from the zoning code. For instance, if a project exceeds limits on building heights and elevation, those deviations would each require a variance request.
Who reviews variance requests?
While the Town Council has the final say on variance requests, Palm Beach's volunteer design boards — the Architectural Commission and the Landmarks Preservation Commission — get the town's first look at the issues involved.
But those commissions cannot approve or deny a variance request. Instead, when either commission votes on a project's design, they also hold a vote on whether to recommend the Town Council greenlight the requested variance or to dissuade the council from approving it.
Why do Palm Beach planning staff want to reduce variance requests?
Though the Town Council's approval of a variance is meant to be based on the code's criteria, requests are sometimes granted because they are deemed "de mininis," or a small deviation to the code.
But making that evaluation can lead to legal trouble, since a true hardship is one of the defining criteria a variance request must satisfy, Peter Henn, an attorney for the town, told the Planning and Zoning Commission in June.
Just recently, a group of residents sued Town Hall and the Palm Beach Synagogue after the Town Council voted to approve an expansion project that included nine variance requests. The lawsuit claims the council granted the variances without the synagogue proving they were needed to overcome a significant hardship.
Complicating the issue is the fact that a hardship is not defined under the code, staff noted during the June meeting.
Town staff is proposing a waiver system for minor projects, historic buildings
To curb the number of variance requests, town staff recently proposed rewording the zoning code's definition of a variance, so that any request must highlight a hardship. The new code also will feature a clear definition of a hardship, Town Planner Jennifer Hofmeister-Drew said during the June meeting.
But town staff also is proposing the creation of a "waiver request" process to help ensure property owners would still have the flexibility to pursue projects that do not involve a hardship and slightly deviate from the town's zoning code.
'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 (the granting of) a variance for those tough times when it truly is going beyond the guardrails we will set up for the waiver criteria,' Henn told the planning board.
Recently, planning staff have tapped the town's Design and Preservation staff and the nonprofit Preservation Foundation of Palm Beach to help draft the criteria for the waiver program.
That's because landmarked and historically significant building comprise a large portion of variance requests, said Planning, Zoning and Building Assistant Director James Murphy.
"We're really looking for joint collaboration in (this process), so we're very excited about that," he said.
But residents will have to wait a while before they get their first look at the new variance and waiver program, Murphy added, because those proposals are not expected to be presented anytime soon.
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@
This article originally appeared on Palm Beach Daily News: Learn about the divisive zoning request Palm Beach is trying to curb
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