Clash between property rights and higher density rezoning in South Dade causing angst for residents

By William Gjebre, FloridaBulldog.org

UPDATE – May 8: Residents of a predominantly single-family east Killian neighborhood got some relief from a years-long struggle opposing construction of a 216-bed assisted living facility in their neighborhood Tuesday when the Miami-Dade County Commission failed to rezone the site to the needed higher density.

Three rollcall voice counts on Tuesday – two for approval and one for denial – fell short by one vote, rendering the developer’s request defeated.

After commissioners were asked if anyone would change his/her vote to break the impasse and none did so commission chair Oliver Gilbert moved on to the next item, a procedural action that resulted in the request being defeated. He refused requests by some commissioners and the attorney for the property owner to defer the matter – for a fifth time – to keep it alive.

District 8 County Commissioner Danielle Cohen Higgins, representing the Killian area, led the effort to defeat the rezoning of the property at 8315 S.W. 122^nd Street. The 1.59-acre site is adjacent to the Metrorail south busway in what’s known as a Mixed-Use Corridor Density (MCD) area. She said the project was not compatible with the neighborhood.

The property ownership group, Cohen Higgins said, should abide by a covenant it agreed to years ago to limit the property to construction of 12 duplex units in six buildings when it obtained a previous rezoning of the same site.

David Winker, attorney for the more than 800 Killian residents who signed petitions opposing the rezoning, said the matter cannot be brought back for two years. “It’s good when residents win sometimes,” he added.

The attorney for the property owner, South Dixie and 122 LLC, whose registered agent and managing member is listed as Michael Garcia Carrillo, declined to comment on what her client will do next.

May 4 – Residents of a predominantly single-family east Killian neighborhood should have been notified prior to Miami-Dade county commissioners approving a higher density zoning code impacting properties along the Metrorail south busway, a university real estate professor says.

“This is a property rights issue,” said Paul S. Black, for 24 years an adjunct professor of real estate at Florida International University. If each resident was not notified, he added, “it’s probably a violation of some requirement” or the absence of good public policy.

Top county planning and economic development officials did not return Florida Bulldog calls for comment. But their representative, who insisted on anonymity, said the higher density code approved by the county commission in January 2019 was enacted as a “legislative” measure for a wide area of the county and, therefore, did not require notice to each property owner.

The code, known as Mixed-Use Corridor Density (MCD), was advertised as required, the representative said, adding anyone interested in proposed commission measures should check agendas on the county website.

The MCD was enacted to stimulate business activities and to increase Metrorail bus and train ridership in an attempt to reach ridership thresholds to attract federal funds to support rapid transit systems. It allows for higher density along the south and five other busways linked to Metrorail train stations. Owners of individual parcels must apply for, and be granted approvals.

But it has played havoc in the east Killian neighborhood because a property owner is seeking commission approval to apply the higher density on a 1.59-acre site at 8315 SW 122^nd St. to build a 216-bed assisted living facility (ALF). Area residents say the facility is not compatible with the predominantly single-family area that includes a section of “Historic Killian Drive.”

THE EAST KILLIAN CONTROVERSY

They are also concerned that an MCD change for the property will lead others, such as developers and real estate investors, to seek property along the busway to build a wide variety of commercial uses – forever altering the residential area. The MCD allows residential, including ALFs, businesses such as convenience services, entertainment and civic facilities, as well as professional buildings.

The east Killian controversy has stirred so much angst that county commissioners have deferred the item four times for various reasons, including losing a commission quorum March 21 that ended the meeting; mostly recently, on April 21, commissioners were unable to gather enough votes to deny or approve the request and deferred the item to May 7 for another try.

The MCD is applicable to properties from a half-mile of the center line of the south busway, which abuts U.S. 1 to the east and west, with the highest boost nearest the center and the lesser farther from it. The proposed ALF site is right next to the busway – separated by a fence and walkway – and has highest density spike because it is within ¼ mile of the busway.

The lack of notice prior to the county commission approving the MCD in 2019 deprived residents of having their say on the proposals at time when they could have expressed concerns before enactment.

REZONING MUST BE COMPATIBLE

Now, those residents have mustered more than 800 signatures opposing the proposed MCD rezoning of a 1.59-acre tract for the ALF. Residents were notified once the property owner sought to apply the MCD.

“So, what they are doing here is up-zoning density and causing damage to the existing community, in this case a long, established residential area that’s fighting because it impacts the quality of life,” FIU professor Black said. “The [MCD] provisions could alter how development could change in the area…because they allow for a variety of uses.

“If they were concerned about the area not generating ridership,” Black added, “they failed to solve the issues before…by failing to build parking areas at various bus stops along the impacted corridor.” There are no designated parking or drop off areas along the busway at stops at SW 128, 124 and 112 streets – locations nearest the 1.59-acre tract. In cities to the north rapid transit system communities provided parking or drop-off/pickup areas, Black said.

“They created parking issues, causing ridership problems and now they want to fix it with a solution that damages the existing neighborhood, now that they want to create more ridership and business activities,” he remarked. “There was a lack of wise planning here.”

Black said Killian residents should have been notified in 2019 of the imposition of the MCD in the same way residents were have notified when the owner of the 1.59-acre tract sought to rezone to the property.

“Zoning has to be compatible with the existing neighborhood, what’s called ‘reasonable use,’” said Frank Schnidman, retired professor of land use at Florida Atlantic University. “This is disrupting, aimed at increasing activity which only increases the value for the property owner for increased profit on the property.

“What right do they have to disturb the existing neighborhood for those not living there?” added Schnidman. The ALF, he said, will create increased traffic from vehicles providing services and goods for the facility. He stated that it is unlikely that residents of the facility will be using Metro busway transit and he doubted enough workers would do so to make a noticeable ridership increase.

‘A TOUGH ARGUMENT TO COUNTER’

The 1.59-acre tract is owned by South Dixie and 122 LLC, whose managing director Michael Garcia-Carillo, is asking the county commission to set aside a previous rezoning covenant limiting the property to 12 duplex units and approve a new covenant under MCD to build a 216-bed assisted living facility.

In addition to having the county staff recommend the zoning change, the property ownership has stressed that the ALF will provide for the housing and care of a growing elderly population in Miami Dade, and received supportive comments from some commissioners at past meetings.

“It’s a tough argument to counter,” said adjunct professor Black, referring to the need for ALFs. But Black also said that the property ownership will have to overcome the previous covenant limiting the property to 12 duplex units. Seeking to undo that covenant is generally “very difficult to do” when requested from the same governmental entity that approved it, he commented.

A covenant “is a promise. What’s a promise worth,” Black said, if the developer agrees to a covenant and then wants to withdraw it and make a new promise? The answer: worthless, he suggested. “The purpose of government,” Schnidman said, “is to protect the existing homeowners.”

Much of the 20-mile south busway, from Dadeland South station, at U.S. 1 and SW 92^nd Street to SW 344^th Street, runs along mostly commercial areas that immediately benefitted those property owners and much of these areas are seeing new commercial buildings and mid-rise and high-rise residential building.

However, the Killian section from SW 106^th to 128^th Street is predominantly single-family homes, with a smattering of duplexes, townhouses and office/business structures. In recently years homes have been renovated or replaced with new homes which also have also built on previous vacant sites. Many of those improvements involve east Killian single-family housing near the busway.