The City of Palm Bay, Fl Apparently has an Archaic and Severely Restrictive Zoning Ordinance that Requires a “Super Majority”of City Council Members to Approve a Rezoning Change.

 

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WE LIVE IN A WORLD WHERE MAJORITY RULES, NOT A SUPERMAJORITY.

Simply stated, a “supermajority” vote is a vote that must exceed the number of votes comprising a “simple majority.” For example, a simple majority in the 100-member Senate is 51 votes; while a 2/3 supermajority requires 67 votes.

The archaic and severely restrictive zoning ordinance allows a “few” residents anywhere in Palm Bay to stop a good development. This rezoning ordinance requires an often difficult “supermajority” vs. a simple majority vote of the City Council Members as normally required by most cities and counties.

The problem is that the City of Palm Bay has a present code ordinance that says if the nearby residents of a development (20% of them) get a petition against a rezoning petition, it then requires a supermajority vote of the City Council.

Several weeks ago a half dozen City residents of Palm Bay and a few “non-residents” spoke before a meeting of the City Council insinuating that most nearby cities and counties, i.e. City of Melbourne & City of West Melbourne had similar ordinances calling for “supermajority” on rezoning petitions, if there was an objecting petition from nearby residents. Obviously, this was to give the City Council the general inference that most cities have this same ordinance.

According to a December 134, 2016 letter from Jason Steel of Jason Steele Real Estate in, Indialantic, Florida: “I have an excellent relationship with the Mayors of West Melbourne, the Mayor of Melbourne and the former Mayor of Palm Bay, John Mazziotti; none of whom were aware that their City actually had this same and unusual ordinance, and immediately felt their ordinance should be changed.

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Jason Steele

I have been involved in Planning and Zoning matters in a multitude of cities and counties throughout Florida for 40 years and have never run across a similar ordinance. I am the former Director of the Division of Real Estate under the Dept of Business and Professional Regulations for the State of Florida. When I started in this business, the original zoning laws were supposed to be for what is good for the overall community not just a few disgruntled neighbors.

Every City we have contacted about this ‘strange’ ordinance has said they have never heard of such a biased ordinance. They keep saying, ‘why would the City of Palm Bay have or want an ordinance that literally holds the City ransom to a few people that say the existing ordinance allows a few residents to dictate biased zoning policy vs the City Council?’

A few of the nearby Cities or Counties that do not have a similar ordinance in place are as follows:

  1. Brevard County
  2. Indian River County
  3. St Lucie County
  4. Okeechobee County
  5. City of Port St Lucie
  6. City of Stuart
  7. City of Satellite Beach
  8. City of Vero Beach
  9. City of Palm Beach Gardens
  10. City of Okeechobee
  11. City of Boca Raton
  12. City of Sebastian
  13. Town of Jupiter

In recent years, local courts in Florida have made other rulings that have not supported this arbitrary and capricious verbiage in the zoning ordinance.

City Staff and Council members should read the attached memo from John Cook, Esq., the well-respected attorney for the City of Okeechobee, stating, the City of Palm Bay’s ordinance ‘is tantamount to delegating the process to the public.’

Most cities and counties in Florida do ‘not’ have this ordinance.

Rezoning a property is supposed to be what’s good of the overall community, and ‘not’ just the immediate vocal minority.”

Here is the content of the memo Mr. Steele referred to from John Cook, Esq., attorney for the City of Okeechobee:

“The city of Okeechobee has no provision in its zoning ordinances that condition zoning approvals by a supermajority of city council votes when a certain number of citizens submit a petition objecting to such action.

Having been on the county zoning board in 1986-88, and as city attorney from 1988 to present, it has always been my understanding that zoning approvals or denials cannot be based upon a show of hands in the audience, or similar citizen response to a petition. While citizen input and opinion is guaranteed at public hearings, at no time does the city of Okeechobee base such decisions upon whether a majority of citizens approve or disapprove of the action.

The ordinance to which you refer permits approval when a citizen petition is filed, but requiring a supermajority is tantamount to delegating the process to the public.

I would call your attention to Fl. Attorney General opinion 2012-32, which sets out the perils of this practice, which infringes on the legislative authority of local government.”

Here are excerpts from that September 19, 2012 Advisory Legal Opinion AGO 2012-32 Regarding Counties – Landowner Consent for Zoning Changes from Florida Attorney General Pam Bondi addressed to Mr. Mark H. Scruby, Clay County Attorney, Green Cove Springs, Florida 32043-1366.

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Florida Attorney General Pam Bondi

“You have asked whether some statutory provision may authorize a local government to require in its zoning code that consent to an application for rezoning by some or all of the other individual property owners within a planned development is required before the application can be considered for approval. As a general proposition this office has previously concluded that such a requirement might, if enacted, result in an illegal delegation or abdication of legislative power.

While consideration generally must be given to the rights of the individual landowner of the property involved as well as the interests of adjoining landowners and others in the adoption of zoning changes,  I must caution that an ordinance which delegates the legislative power vested in the county commission to determine the public policy and regulate property rights based on the written consent of all or a majority of the specified landowners and homeowners prior to accepting an application for rezoning might well be seen by a court as an invalid delegation of the legislative power of the county.”

Since Palm Bay’s biggest economic and financial problem is that it is grossly lacking a commercial (business) tax base, according to Alan Sakowitz, an attorney from Bar Harbor Island, Florida, well familiar with zoning matters, who is a land owner in Palm Bay interested in investing in purchasing more land in the City for commercial development “the Council members are elected by the people and they act on behalf of all of the people. Every person that wants to be heard has an opportunity to present their views and have them considered. In the end, it is the responsibility of the Councilmembers to do what is in the best interest of the City of Palm Bay and its 110,000 residents.”

In the City of Stuart, a zoning change can be accomplished with a regular majority rather than a super majority.  A super majority for a zoning change was challenged and an administrative judge found it invalid.

Here is an example of how this ordinance is jeopardizing a commercial (business) tax base:

Let’s say MD Anderson Hospital, the “world famous” Cancer Hospital in Houston, wanted to build a new Cancer Hospital in Florida on 50 acres of land in Palm Bay that is presently zoned residential, located near the new I-95 Interchange in South Palm Bay. The hospital made a deal to purchase a piece of residential property, and the only two adjacent large property owners wanted the hospital on their property and signed a petition against the rezoning.  They were good friends and supporters with two of the City Council members.

Thus, the rezoning fails and the hospital decides to move a little further South to Vero Beach which does not have this ordinance. This would be a terrible loss to the 110,000 people in Palm Bay. The economic impact of “2,000” extremely high paying jobs would have a tremendous negative effect on all the citizens of Palm Bay, and it was killed by a few selfish and devious residents.

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It is unmanagble for all the people to vote on every issue. Therefore, a small group of people must make decisions for the majority. But it is not any small group of people that can make those decisions in a democratic form of government. In a democracy, it is a few individuals who are duly elected by the people to represent the people. On the City level, we call these representatives Council members.

The judgment of the majority of elected officials to protect the interests of the people of in Palm Bay should be trusted. The supermajority provision appears illogical in that it places the trust in the minority over the judgment of the majority.

Planning Staff of Palm Bay initiated and has supported the removal of this Ordinance. The City Attorney, Andrew Lannon, Esq. at the City Council meeting on December 1, 2016 publicly told the City Council that this ordinance “handcuffs” the City if they want to bring in major businesses to Palm Bay.

Isn’t the Palm Bay City Council doing the right thing to bring this ordinance up early this year to abolish this unfair ordinance in its entirety, as “all” the Council members have said it’s wrong and hurts the City!  The Council members including the Mayor, also stated that they all ran for office on a pro-business and pro-growth platform and this ordinance is not pro-business and not pro-growth; it’s the opposite.

In conclusion, for the City to save itself, and the City is in “dire financial straits,” the City Council must rezone property and bring in more commercial and industrial users. Again, this is the platform “all” the Council Members have run on in the last two City elections, and obviously what the large majority of the Citizens of Palm Bay want, since they voted these candidates into office.

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For a related article about the financial straits of Palm Bay please click on this link.

https://verocommunique.com/2016/12/09/is-the-palm-bay-fl-city-council-surreptitiously-discussing-selling-the-citys-water-and-wastewater-utility/

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