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Here’s The Scoop…LBTS Height Limits Explained…

Dear Readers….LBTS has walked away from those who were there when….

Many who have walked in the current “movers and shakers” shoes…and those who are still “moving and shaking” and REVISING the history they hope will be unchallenged as they “shoot the messengers”…and lead the “lemmings” off the cliff…

Fortunately one person …a long-time former LBTS resident…and keeper of the Town history… is always available and can be counted on….to represent the facts…with no agenda…just his own sense of honor and duty…no matter what is being hurled at him ….to keep him quiet…in a concerted effort to succeed by those with their own selfish self-serving plans…….for power in this Town… He has stepped up to the plate after a request by Commissioner Dodd…that began last July after the Commissioner realized as many of us in the dark sadly did…the repeal of the Overlay Districts…brought us back to the 33 feet height limits….and something needed to be done to address the 44 feet the voters voted for and the CIC promoted…

Mr Thompson…has again been asked this last week to contact the Commission…the Administration…the P & Z/MPSC who are in the throes of walking down this all too familiar path…and even the CIC Board…so deeply flawed in this writer’s opinion…disregarding and treating badly both the CIC backed 3 over 1……and CIC Board member John Thompson himself….

The following e-mail containing the pertinent information required to get the height limits…the procedures….and the decision making correct…is with the permission of John Thompson….( public record…per Mr Thompson)….

3-over-1 in Town Charter and Ordinances

Friday, October 24, 2008 9:08 PM
“Hon. Roseann Minnet” <[email protected]>, “Hon. Jerry McIntee” <[email protected]>, “Hon. Jim Silverstone” <[email protected]>, “Hon. Birute Ann Clottey” <[email protected]>, “Hon. A. Stuart Dodd” <[email protected]>
“Town Manager Esther Colon” <[email protected]>, “Town Attorney Daniel Abbott Esq.” <[email protected]>

One Commissioner asked me for an explanation of he current status of “3-over-1” following much disagreement on that subject at the recent joint P&Z-MPSC meeting. In view of apparent widespread confusion, recent turn-over in the Development Office and the Office of the Town Attorney, and the fact that I collaborated with the attorneys who drafted the 2004 and March 2006 Charter Amendments and helped to explain those to voters before the referenda, I believe some other commission members may also find my current explanation helpful. Here it is:

I cannot stress too strongly the importance I attach to the need for commission and board members to understand, appreciate, and act on the clear distinction between the Town Charter (on the one hand) and ordinances (on the other hand) when it comes to the zoning code now in effect.

The Charter CAN — and has — set an over-all town-wide height limit, but CANNOT establish the specific zoning height limits for each separate zoning district. I believe that one of the TRUE claims in Parker’s 1998 campaign mailing (attached — see point 10 on page 3) — and one that he appears to have forgotten in his November 2006 “Proposition-1,” when he proposed a CHARTER provision on separate zoning for the north-east quadrant of Town — is that it is against state law to attempt to set ZONING standards in a town charter.

So while 3-over-1 remains a valid MAXIMUM town-wide new-building-height limit under the LBTS Town Charter, it is NOWHERE part of the zoning code now in effect since the repeal of the overlay-district ordinances. (The 1998 and March 2006 charter amendments passed by the majority of the voters of Lauderdale-by-the-Sea and establishing the 3-over-1-story maximum height limit have never been fully interpreted or applied with regard to 3-over-1 ZONING, however, because the Commission circumvented the problem with the invention of the overlay districts which also, however, condoned unacceptable setbacks and green space relaxations not permissable under the 1973 electoral ordinance.)

ELECTORAL ORDINANCES are a THIRD category of animal, similar to ordinary ordinances of the Commission, in that they may –as in July 1973 — be used to set effective zoning provisions; but like the Charter (See Article IV of the Charter as amended in March 2004.) in that they may only be altered by referendum votes, and not by simple ordinances of the Commission.

Thus the 1973 electoral ordinance (as reaffirmed in the 2004 Charter Amendment on Initiative and Referendum) remains in effect EXCEPT to the extent that it was amended by specific provisions (mainly 3-over-1, but also square footage, parking, etc.) of the 1998 and 2006 height-limit Charter Amendments.

That means, in particular, that the separation, setback and green space provisions of the 1973 electoral ordinance remain in effect, although the POSSIBILITY now exists for the Town Commission to re-increase the ZONED height limit in those districts (ONLY) where it had previously been raised to 3-over-1 in overlay-district ordinances which were in effect when the 2006 Charter Amendment was approved by LBTS voters. That possibility exists because the June 2006 height-limit Charter Amendment (on which I collaborated with our attorney Ross Shulmister and an excerpt of the relevant paragraphs of which I also attach) makes a definite distinction between increasing height limits above 3-over-1 (not permissible) and increasing EXISTING zoned height limits UP TO the 3-over-1 maximum limit.

Under the 1998 and June 2006 charter amendments, no part of town may be rezoned to a higher limit than the maximum established in paragraphs (1) and (5), i.e. 3-over 1 (now often inaccurately referred to simply as 44-feet). That is clear enough. However, the provision of the June 2006 Amendment governing RESIDENTIAL-ZONING DISTRICTS is that the maximum zoned height limits may be increased above those “in the Town’s land development code AS OF [March 2006] … only by a referendum vote….”

But since the old guard’s overlay districts had ALREADY raised the height limits in some residential districts (i.e. in those along the beach and along A-1-A) to 3-over-1 BEFORE March 2006, there would appear to be NO prohibition on AGAIN raising the height limits (ONLY) in those districts (ONLY) to 3-over-1 WITHOUT a referendum vote — so long as the districts are NOT re-zoned “for any other use whatsoever”, nor any of the other existing zoning limitations — e.g., those governing square footage, setbacks and green-space, including those mandated by the 1973 electoral ordinance — exceeded. That is because those particular height limits were ALREADY in the land development code (albeit possibly not yet formally codified) as of March 2006.

The 3-over-1-story height limit of the Hospitality District Overlay Ordinance was clearly legal, because a sleeper clause in Parker’s 1998 height-limit charter amendment (repealed by March 2006 amendment) gave the Commission express authority to raise zoned height limits anywhere in town to 3-over-1 without a referendum. And the severability clause in the Overlay-District ordinance means that possible illegality of other provisions of that ordinance (“permeable area,” setbacks, etc) does not detract from the legality of the 3-over-1 provision.

That means, in particular, that the separation, setback and green space provisions of the 1973 electoral ordinance remain in effect, although the POSSIBILITY now exists for the Commission to re-increase the ZONED height limit in those districts (ONLY) where it was previously raised in any overlay-district ordinances that were in effect when the March 2006 Charter Amendment was approved by LBTS voters.

I have heard that some are now arguing that there could be NO new ordinance increasing some ZONED height limits to 3-over-1 which did not ALSO include “give-backs” on setbacks, green space, etc, because, they allege, there are NO EXISTING ZONING REGULATIONS that could apply to construction in excess of 3 stories. But, on the contrary, there clearly ARE such existing zoning regulations, dating from the July 1973 electoral ordinance and never altered by popular vote.

If you refer to the RM-25 zoning code established in accordance with the 1973 electoral ordinance (hi-lighted portions of 2000-era zoning-code excerpt which I will forward by separate email because of its length), you will see that there are clear green-space requirements and increased setback requirements established for construction in the RM-25 district in excess of 22-feet (e.g., “Side setbacks shall not be less than ten (10) feet, with the proviso that if the height of the building exceeds twenty-two (22) feet, the ten-foot setback shall be increased by (1) foot for every two (2) feet by which the height of the building exceeds twenty-two (22) feet.” Not only could those pre-existing limits be applied also to future 3-over-1 construction (wherever that could be permitted by simple ordinance of the commission) but they are the ONLY increases in RM-25 zoning limits that can be included in a new ordinance WITHOUT a popular referendum vote to exceed the limits set in the 1973 electoral ordinance.

Some also contend that there would have to be lengthy P&Z consideration of a desirable relaxation of setbacks and green space (along the lines of the overlay districts?) in order to arrive at zoning that would interest developers. But virtually NO consideration by the P&Z would be needed to draft an ordinance that simply increases height to 3-over-1 in selected districts where it once existed, and does so WHILE RESPECTING the 1973 electoral-ordinance provisions on setbacks, green space, separation, etc. The Town Attorney should be able to do that on his own, drawing on the March 2006 Charter Amendment, the repealed overlay-district ordinances, and on the 1973 electoral ordinance, with which Ken Wardlaw or I could supply him, if they are unable find it at Town Hall.

In summary, I definitely DO believe a new ordinance of the Commission would be needed to again permit 3-over-1 construction under the specific conditions approved by LBTS voters in the 1998 and March 2006 Charter Amendments. But I am also convinced that an ordinance could rather easily and quickly be drawn up to permit 3-over-1 construction in those areas (ONLY) where it was previously allowed under overlay-district ordinances in effect in March 2006, and where voters were, as I recall, assured it would (only) be applied when they voted for the initial 1998 3-over-1 Charter Amendment drafted by (then) Vice Mayor Parker.

Let me also urge all concerned to refer to what the voters have set as a maximum limit – and what might again be zoned in certain areas – as “3-over-1 stories,” and NOT as “4 stories” or “44 feet,” which were terms introduced and popularized by ex-Vice Mayor Kennedy in an attempt, I believe, to expand the envelope beyond what the LBTS voters had clearly approved.

I would be happy to provide any further information you may consider helpful or to clear up any issues not fully covered above or in the attachments. As you know, I am not an attorney, but I did collaborate closely with the skilled attorneys who prepared the relevant 2004 and March 2006 Charter Amendments. I also helped to explain to voters ahead of those elections what it was they would be voting on and why they should vote “YES” on those two amendments.

Dear Readers… Insist your elected officials…appointed Board and Committee members…Civic … PAC….and neighborhood organizations get all the information…and contact John Thompson…and all others who were there ….to put this issue to bed …once and for all…

previous posts…MPSC/P&Z will meet on this …in Nov. and Dec. at the MPSC meeting the 3rd week of the month…televised…open to the public…with a full open meeting in January…get involved…and participate…

any supporting or opposing responses…or additional information is welcome…

more to come


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