Reality wins over precedent in East Kendall zoning vote

Wrestling between reality and setting precedent, the East Kendall Community Council tied 3-3 before voting 6-0 to approve a three-story garage at The Colony at Dadeland condominium on Nov. 13.

The reality: overflow of resident vehicles that endanger public safety and flaunt illegal parking on swale areas along SW 77th Avenue, needing immediate action.

The precedent: violating code principles (i.e., building sufficient parking at the time of construction) and creating a potential density issue.

Nearly two hours of relatively harmonious exchanges between developer Jose Milton and attorney Miguel de la Portilla with board members were in marked contrast to a June 22, 2010 hearing.

Then, The Colony’s application for a new eight-story building was vigorously protested by more than 100 area residents, resulting in a 3-3 council tie vote before a subsequent 3-2 approval to permit new building construction.

However, the issue of insufficient parking did not cause a word of protest at the latest Colony application because residents of Woodside Condominium within the complex had hammered out a lengthy document of building, lighting and landscaping requirements which developer/owner Jose Milton agreed to fulfill.

Although not legally acceptable as a condition for approval, as board members asked, the document was read into the proceedings and ultimately caused the switch from a 3-3 vote to unanimous approval.

The board’s two attorneys, Jose Valdes and Elliott Zink, who initially joined Peggy Brodeur to vote “no,” both raised concerns of potential legal implications ensuing from any board action approving a zoning change counter to existing codes.

Because zoning and building regulations require a development to build sufficient parking at the time of construction, Valdes asked, “How we can justify building a new garage for what should have been built in 1968?”

By voting such approval now, Zink said the board would be changing an existing density by adding new garage spaces over those originally allowed by code. As a precedent, such action could lead to multiple applications for density changes throughout existing Kendall communities, he reasoned.

Countering “precedent-setting” was an agreement read into the record by de la Portilla providing lengthy stipulations for garage construction that was co-approved by the five-member Woodside Condominium Association Board, representing 124 residents.

Association vice president Gina Anderhub told the council she agreed to reading its provisions into the hearing record, although it remained a “private document” between the association and The Colony.

Brodeur, Valdes and Zink then turned their previous “no” votes to “yes” when it was agreed to attach the July 2012 agreement to the approval motion.

Automobile parking on swale areas along SW 77th Avenue near The Colony entrance “was actually the result of a new eight-story building,” reasoned Holly White, president of Continental Park Homeowners Association. In 2010, White was a spokesperson for her HOA, then objecting to new building expansion, partly because of its increase in density.

“However, with the building in existence, the developer has now done his best to resolve a severe parking problem, adversely affecting the public,” she stated. “On the other hand, we’ll add growth that continues to change the character of this neighborhood.”

Solving the immediate problem was the overriding need, declared chair Jose Garciga, supported by both Alberto Santana and Anthony Petisco who made both motions and seconds to approve the garage project.

They noted Milton had leased a SW 77th Avenue vacant land parcel to added parking space, indicative of his cooperative efforts to provide resident and visitor spaces.

The approving motion includes multiple conditions and resolving a single Public Works Department objection on a turning radius within the garage.

Before discussion got underway, de la Portilla had asked Brodeur to recuse herself from the hearing because her active lawsuit against the board maintained the 3-2 vote in 2010 was illegally taken and could prejudice participation in the current application.

Brodeur had left the 2010 hearing, believing a 3-3 vote in which she participated deferred action until a later board meeting. Instead, board deliberations continued after her departure, resulting in a 3-2 approving vote challenged by Brodeur in a still-pending civil action.

“I think I can serve impartially,” Brodeur concluded after assistant county attorney Thomas Robertson ruled her participation legal.

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