Building on Boca’s Beach – Round Two!

Here We Go Again … On September 16, The Palm Beach Circuit Court ruled that the owners of 2600 N. Ocean Boulevard are entitled to a second hearing by the Boca city council on their application for a zoning variance, which would allow them to build a large residence east of AIA, on the beach, and east of the Coastal Construction Control Line.  For background on this issue, see our previous article Boca Council Denies Request to Build on Beach Dune.

What is the Coastal Construction Control Line?

From the Florida Department of Environmental Regulation:  The Coastal Construction Control Line (CCCL) Program regulates structures and activities which can cause beach erosion, destabilize dunes, damage upland properties, or interfere with public access. CCCL permits also protect sea turtles and dune plants.  See  https://floridadep.gov/rcp/coastal-construction-control-line for more information.

What is a Zoning Variance?

When a property is acquired by a new owner, it comes with specific property rights based on zoning and local law at the time the property changes hands.  Zoning determines the type of use such as residential or commercial.  Zoning also determines minimum and maximum requirements for things like setbacks, height and square footage.  These elements, combined, define a set of property rights often called “permitted uses”, which cannot be denied.

If a property owner wants to build something that does not comply with permitted uses, they must apply for a zoning variance, which ultimately can be decided by a vote of the Boca city council, who has the last word on these matters.

How is a Zoning Variance Granted?

There are six criteria that all must be met in order to grant a zoning variance.  A miss on any one of them means the variance should not be approved.  And even if all the criteria are met, the variance can be denied.  

In other words, a property owner has built-in rights to permitted uses, and also has the right to request a variance.  But there is no requirement that a variance be granted, no matter the circumstances!

For details of the required criteria for a zoning variance, see Boca Municode Chapter 28 section 127 Review by planning and zoning board; criteria for approval.

How Did We Get into This Mess?

The original request to build east of the CCCL was submitted and denied, properly so, by our current city council.  This led to an extensive and expensive court battle, which brings us to our current state of affairs.

Should This Variance Be Granted?

The property owner is requesting a variance to build a residence on the beach east of the Coastal Construction Control Line (CCCL), which is not a permitted use of this property.  How do we know this is not a permitted use?  We know it because the owners are applying for a zoning variance!  There would be no need to do so if building east of the CCCL was permitted.  Simple, eh?

Certainly, there will be much debate and discussion of whether all of the criteria for this variance have been met.  Also, whether the variance should be granted at all.  Do you have an opinion?  If so, please email your City Councilors.