HISTORY
On October 18, 2017, at the request of former Commissioner Joy Malakoff, the City Commission made a dual referral of the subject amendment to the Land Use and Development Committee and the Planning Board (item C4T). On October 30, 2017, the Land Use Committee discussed the proposed amendment and gave a positive recommendation. Additionally, Commissioner John Elizabeth Aleman agreed to co-sponsor the proposed ordinance.
PLANNING ANALYSIS
A property owner that is seeking approval for a unified development site on Ocean Terrace has proposed an amendment that would modify current regulations pertaining to legal non-conforming FAR. Although the change proposed is legislative, review for compliance with the City Charter was required, as the proposal involves an increase in zoned FAR.
City Section 1.03(c) of the City of Miami Beach Charter explicitly prohibits the floor area ratio (FAR) of any property from being increased by zoning, transfer, or any other means from its current zoned floor area ratio as it exists currently, without being approved by a public referendum. This Charter provision does include an exception for the division of lots, “or the aggregation of development rights on unified abutting parcels, as may be permitted by ordinance.” The ordinance referred to is Section 118-5 of the Land Development Regulations of the City Code, pertaining to Unities of Title and Covenants in Lieu of Unity of Title. This section provides a mechanism for single or multiple buildings proposed for a unified development site consisting of multiple lots, all lots touching and not separated by a lot under different ownership, or a public right of way.
When a development is proposed over multiple lots, or multiple buildings are proposed for single or multiple lots, a Unity of Title or a Covenant in Lieu of Unity of Title must be executed to combine the lots or buildings for zoning purposes. The mere fact that touching lots are under the same ownership may be enough to consider such lots as a unified development site. In this regard, the entire collection of lots is considered one site for zoning purposes, which includes the calculation of a site’s Floor Area Ratio (FAR). For example, if a unified site has a maximum FAR of 100,000 SF, and there is an existing building to remain on that site with an area of 20,000 square feet, then the maximum area of added new construction cannot exceed 80,000 square feet, totaling to the maximum FAR for the site of 100,000 SF.
As proposed, the draft Ordinance would modify the regulations pertaining to the retention of legal non-conforming floor area for unified sites located within a locally designated historic district or historic site as follows:
1. The maximum FAR for a Unified Development Site shall not exceed the aggregate maximum FAR of the multiple lots allowed by the underlying zoning districts, inclusive of bonus FAR. Within a locally designated historic district or locally designated historic site, any platted lot(s) that contain legal-nonconforming FAR and were previously separate and apart from other lots that comprise the Unified Development Site, may retain their existing legal non-conforming FAR, provided no additional FAR is added to such platted lot(s).
2. Within a Unified Development Site, passageways or other connections that are an allowable FAR exception may be permitted on lots with legal non-conforming FAR.
The proposed changes would allow for the retention of legal non-conforming floor area in an existing building, which was previously permitted as a separate site. Such retention of non-conforming floor area would be permissible within a proposed unified development site located within an historic district or individually designated site. For example, under the current code, if an existing 20,000 SF building was located on a site with a current maximum FAR of 10,000 SF, no new floor area could be added to that site. If that site was proposed to be combined with multiple abutting sites, forming a larger, unified development site, the excess legal non-conforming FAR would be required to be distributed over all the sites, such that the overall FAR of the newly created unified development site did not exceed the current maximum FAR.
Under the proposal, the legal non-conforming FAR as noted in the example would be permitted to be retained, as part of the overall FAR for the unified site. This would result in a net increase of 10,000 SF for the unified development site, as the legal non-conforming FAR would not have to have to be distributed within the proposed unified site.
The proposal is practical as it pertains to the operation of existing buildings within unified development sites that may contain legal non-conforming FAR. However, although limited to historic districts and sites, the proposed amendment could have implications across the City, including for lots which were previously unified.
PLANNING BOARD REVIEW
On November 21, 2017, the Planning Board transmitted the proposed Ordinance Amendment to the City Commission with a favorable recommendation.
UPDATE
The subject Ordinance was approved at First Reading on December 13, 2017, with two minor changes. First, pursuant to the recommendation of the Administration, the Ordinance was revised to restrict the retention of legal non-conforming FAR to ‘contributing’ buildings. In this regard, by limiting the retention of legal non-conforming FAR to ‘contributing’ buildings, the legislation would be consistent with Sec. 118-395 of the City Code, which allows the historic preservation board to approve the retention of legal non-conforming FAR for a ‘contributing’ building, if the renovation exceeds the 50% rule.
Second, at the request of the proposer, the subject ordinance was limited to applicable properties within the Ocean Terrace Overlay. Both of these changes have been incorporated into a revised Ordinance for Second Reading.