By William Gjebre, FloridaBulldog.org
The city of Hollywood violated municipal law when it approved a request by the controversial Ben Gamla middle-high school to stop maintaining a rooftop vegetation area that was a key consideration for a zoning exception allowing the school in a residential neighborhood.
This and other allegations made in a lawsuit filed by the Citizens For Responsible Development Inc. ask the Broward Circuit Court to rescind a Hollywood Planning and Development Board-approved variance for the school to operate without the rooftop green space at the facility headed by former U.S. Rep. Peter Deutsch (D-FL).
The school, which has drawn neighborhood opposition since it was proposed and opened during the past three years, was able to build a larger complex on its property at 2648 Van Buren St. by pledging to provide green area on the school’s roof rather than creating an open space recreational area elsewhere on its property, according to the complaint.
The school “should stick to” maintaining the rooftop green space, said Mark Schubert, a plaintiff in the lawsuit who lives near the school. The concern in the neighborhood, he added, is that Ben Gamla will abandon the rooftop green space and consider enclosing it for possible expansion, adding to existing traffic problems in the area just west of I-95 and south of Hollywood Boulevard.
“We believe it was clear the application [for the school] failed to meet the requirements of the city code” for the variance, said Michael Dutko, attorney for Citizens.
The planning board decision, the lawsuit said, has created “a concrete jungle to which Ben Gamla is contributing with its lack of open space and additional traffic which a larger school will create.”
Deutsch defended the planning board decision. “The planning board didn’t see it that way,” said Deutsch. “The board listened to testimony and rejected the pleas to deny.”
A zoning exception
In late 2013, the same city Planning and Development Board approved a zoning exception for Ben Gamla to build a middle-senior high school on 1.52 acres, with numerous conditions, including a commitment to provide and maintain a green space vegetation area on the roof.
The rooftop green space, the lawsuit said, provided about 10,000 square feet to meet the open space requirements under the city code. This also allowed the school to have a larger building footprint on the property, the complaint stated.
Deutsch said the grassy space on the roof was not self-imposed by the school, but was required by the city. The lawsuit, however, said that nothing in the city code required the school to have a green vegetation area.
But after the school opened in the fall of 2015, Ben Gamla officials “decided to abandon the green roof because it proved impractical and difficult to maintain,” the lawsuit stated.
Because the school was already constructed and it could not provide the needed open space on the property, the lawsuit stated, it sought a “hardship variance” to relieve it of some of the open space requirement.
The lawsuit says that at the June 9, 2016 hearing before the Planning and Development Board, city planners told board members that because the rooftop vegetation space was “self-imposed” by the school, city code does not permit the issuance of a variance. City staff urged denial.
City attorney Jeffrey Sheffel, according to the lawsuit, reiterated that the board could not issue the variance if the grassy rooftop was self-imposed. Sheffel did not respond to repeated calls for comment.
Board issues variance
Nevertheless, the planning board voted 6-3 to issue the variance, leading the citizens group to file the lawsuit in July.
If the variance withstands the legal challenge, Deutsch said, the school plans to clean up the rooftop and create a play field for students. Currently, he said, they are playing on a parking lot area at the rear of the property.
If the variance is blocked the school would have to look at some other solution or stay with a limited physical activity program in the parking lot area.
In its petition for a variance, the school stated, that it was entitled to a variance because the proposed change does not materially alter aspects of the already-built facility — height and setbacks remain the same and the facility will continue to provide educational services. Shifting the play area to the rooftop will lessen noise in the neighborhood, the application stated.
Deutsch said the city commission, in effect, supported the planning board variance when it later rejected pleas for the commission to review the decision. In Hollywood, planning board decisions are not automatically reviewed by the city commission unless a majority of the commission wants to do so.
Deutsch also called neighbors’ fears that Ben Gamla plans to expand the middle-high school “absurd.” Residents, however, have expressed suspicions because – after winning approval for a two-story school – Ben Gamla representatives met with city officials about enclosing the rooftop area to add a third floor. The matter did not advance, but representatives linked to the school also have been connected to property acquisitions near Ben Gamla.
The former congressman was also critical of city commissioner Peter Hernandez, saying he had a part in the legal action challenging the city approved variance. “Commissioner Fernandez is trying to hurt Ben Gamla,” Deutsch said.
Hernandez declined to comment on the issue, including his membership (as stated in the complaint) in the group that filed the lawsuit. Hernandez represents the neighborhood that includes the Ben Gamla school. He has said that he has no objection to the students, just that the school was overwhelming for the residential neighborhood.
The lawsuit also complained that the city failed to provide adequate advance notice of the planning board’s hearing and backup information to the community. Residents received as little as a day or two notice before the hearing, giving them little time to prepare a response. Also, residents were limited to a few minutes each to speak.
The city of Hollywood, which has hired an outside law firm in the matter, is expected to respond to the complaint by Dec 31. Ben Gamla has formally intervened in the lawsuit, Deutsch said.
Legal cases challenging planning and zoning decisions by municipal agencies are heard by a three-member panel of judges that may rule based on documents filed or it may hear arguments by the parties.