Smart Development Requires Reform of Miami 21 and SAPs

The purpose of zoning laws is to enhance the livability of a city and increase resident quality of life.  As a lawyer on the front lines of the relationship among government, residents and developers, I would like to suggest some revisions to Miami 21 and its special area plan (SAP) provisions to ensure smart development by strengthening communities so that people and businesses can thrive in place.

Under the Miami 21 zoning code, development may occur without meaningful public participation because as a form-based code, development is now allowed “by right.” In practice, this means that if a developer is seeking to build in compliance with the code, the development will be administratively approved, often with multiple waivers and exceptions requested by developers with no showing of hardship or necessity required.

As a result, Miami 21 has curtailed traditional avenues for public participation, particularly for vulnerable communities.

This lack of participation has been exacerbated by the market forces created by Miami 21, which has upzoned huge swaths of the city and incentivized demolition of single family homes and low rise warehouses and office buildings used by “mom and pop” local businesses. Climate gentrification, with developers seeking higher elevations in light of anticipated sea level rise, has further accelerated these trends.

The SAP provisions of Miami 21, which encourages developers to assemble and develop nine acres of contiguous land for development with massive upzoning in exchange for indeterminate “community benefits” to be negotiated between the city planning staff and the developer, has resulted in further development incentive and displacement. While the SAP framework has led to large scale luxury development such as Brickell City Centre and Bal Harbour Shops, its use has been concentrated in minority neighborhoods where land can be aggregated at cheaper prices.

In theory, SAPs reflect the city entering into a trade-off on behalf of residents in order to encourage development that will be beneficial to the community that is directly affected.

Why then have SAPs, rather than benefiting vulnerable communities, resulted in widespread displacement?

While the upzoning caused by SAPs instantaneously can cause a wave of increased real estate values in adjoining areas, when it happens to poor neighborhoods that rising tide only lifts the boats of owners while the renters often can only sink … or leave.

This displacement is exacerbated by the city planning department allowing outsize development by ignoring explicit language in Miami 21 that SAP development must be in character and scale with the surrounding community.

The other problem is that communities have lost leverage that they would otherwise have when a developer used to need to get a discretionary land use permit. Without this leverage, it is very difficult for the community to negotiate with the developers for community benefits because the developer does not need the community’s support. With city encouragement, developers more and more regard SAPs as an entitlement rather than a joint effort to improve each neighborhood for the benefit of all.

A recent article in the Journal of Affordable Housing and Community Development Law (volume 28, Number 1 (2019)), concluded that Miami 21 has resulted in “displacement [of the poor] to outer fringes,” “increased gentrification,” and greater “social/economic segregation” because when people are forced to move they tend to move to areas that are more segregated.

Given that displacement and lack of community involvement is even more concerning considering the demographics and historical racial makeup of many of the affected neighborhoods raises due process and equal protection “spot zoning” constitutional concerns, protections must be implemented to ensure that these communities are not forced to bear the burden of the market forces created by Miami 21, while developers and other residents enjoy the benefits.

Such necessary reforms include:

• Ensuring meaningful community participation by requiring participation of neighborhood associations;
• Mandatory inclusionary zoning that requires that a certain percentage of units in new developments be affordable;
• Requiring developers to assess displacement impact, similar to a traffic impact assessment, that would require an examination of who will be displaced and providing a mitigation plan to minimize displacement and harm to vulnerable communities;
• Creation and funding of neighborhood-controlled land trusts to keep community ownership of real estate;
• Funding for home repairs and improvements to homes of local residents to encourage stability; and
• Funding for “soft mortgages” to convert local qualified renters into homeowners to decrease the pace of gentrification.

Another reform for consideration would be mandatory community benefit agreements that ensure a minimum level of community benefits such as hiring preferences, job training, living wages commitments, relocation assistance, community centers, green spaces and after-school programs.

Such mandatory benefits would avoid a situation like the Magic City SAP where a very low level of community benefit was negotiated by city commissioners in comparison to SAP benefit packages that have been negotiated in wealthier neighborhoods.

These issues go to the heart of the social contract between the government and our most vulnerable residents, and done properly these reforms can help ensure an engaged citizenry empowered to exercise its moral, political and legal rights to shape the communities in which we live, work and raise our children.

David Winker is a Miami attorney with David J. Winker P.A.