Miami 21's Special Area Plans Have Created Special Problems

“Cities have the capability of providing something for everybody, only because, and only when, they are created by everybody.”  —Jane Jacobs, “The Death and Life of Great American Cities”

In a recent article, Neisen Kasdin, managing partner of Akerman LLP’s Miami office, argued that the opposition to special area plans (SAPs) was “largely driven by community activists who oppose change because they like things the way they are and want to preserve their positions of power in the community. They generate opposition by preying upon people’s fear of progress, often without regard to the true long-term interests of the community.”

Nothing could be further from the truth—the opposition to SAPs has been galvanized across a broad spectrum of opponents who have watched this planning tool turned against our most vulnerable communities by developers. That outrage resulted in the City of Miami Planning Zoning & Appeals Board voting unanimously last year to recommend to city commissioners that SAPs be abolished from the Miami 21 zoning code.

SAPs Are Government Up-Zoning

A “special area plan” is a zoning process in Miami 21 that allows a developer that assembles over nine acres of land to apply for the right to build at much greater height and density than would otherwise be allowed. If that application is approved after going before the PZAB for its recommendation and then obtaining final approval from the city commission, the developer then has greater flexibility (e.g., the Magic City SAP received exemption from certain liquor sales limitations) as well as relief from the Code’s otherwise strict rules regarding “succession.”

Miami 21 is a “form based” code designed for “successional growth.” For example, the T-3 transect governs single family and duplex residences of maximum two stories, and T-4 governs multifamily apartments of three stories maximum. Any up-zonings of more than one transect are generally not allowed. SAPs are a planned exception to successional growth, intended to incentivize developers to cooperate with the city planning staff to create a better development than the developer might otherwise build. Kasdin is correct that this process has worked well in some high density places, such as Brickell City Centre. But not all, and there’s the rub—“one size does not fit all.”

At their root, the projects Kasdin is promoting involve governmental up-zoning, with lobbyists approaching the city of Miami on behalf of developers seeking permission to build more than they are otherwise legally allowed to build.

This type of government led development is neither organic nor the result of natural market forces. Rather, market forces are being manipulated to incentivize acquisition of real property in poorer neighborhoods where private investment has been largely absent, except by slumlords, often for decades.

In theory, this process involves the city agreeing to allow more density and height in exchange for the developer making available to residents certain benefits, such as affordable housing, workforce preferences and living wages. But the “community benefits” are only as good as the negotiating process, and it is often the case that the neighborhood doesn’t get what it deserves in a process controlled by connected people in “special deals for special people” handed out by compromised politicians who don’t have the public interest at heart.

Government Up-Zoning Is Just a Tool—It Can be Used for Good or for Bad

SAPs can be used in furtherance of achieving neighborhood goals, such as “affordable” housing.

Or SAPs can be used to displace residents and promote inequity and segregation.  For example, a recent article in the American Bar Association’s Journal of Affordable Housing & Community Development Law found that governmental up-zoning through mechanisms like SAPs resulted in “mass displacement,” and greater “social/economic segregation” as displaced residents “are likely to move to areas that are more segregated, and, as such, they are likely to also receive less or worse municipal services and be further away from job markets and public transport.”

 Building a Miami for Everyone

The problem with Kasdin’s argument in support of SAPs is that he oversimplifies what is happening because he brushes aside the history and the critical issues of race, poverty and inequality in the minority neighborhoods under siege from SAPs.

Rather than patronizingly concluding that SAP opponents have alternative motives, fear progress, or do not know what is good for them, it is important to start by looking at what has led to these neighborhoods being what they are.

Little Haiti is a historic, vibrant and diverse neighborhood that has been neglected by the city of Miami for over 40 years. That lack of infrastructure investment and code and building enforcement has led to a neighborhood desperate for investment. In effect, the argument is “look at this poor neighborhood, it needs help,” even though it is the city of Miami that made it that way.

Proponents of SAPs like Kasdin would argue that SAPs are the perfect tool to address that need. But the breakdown occurs when the neighborhoods are not allowed to meaningfully participate in that process and when their requests and recommendations are disregarded.

The community residents who went before PZAB in opposition to the Magic City SAP did not believe that the percentage of small high-rise apartments to be reserved for them at “affordable” rents would stay that way, even if they wanted to move their families into them. They wanted to see their neighborhood improve but only if they could be assured they could stay there after the improvement. Was that too much to ask?  Therein lies the crux of this issue- “development without the people is development against the people”.

The foundation of building equitable and inclusive communities that respond to the needs of all residents is already in the Miami 21 Zoning Code and Miami Comprehensive Neighborhood Plan, which govern the planning of the city of Miami. Both laws explicitly include language aimed at ensuring that all residents can have a place in the future of the city. Article 2.12 of Miami 21 mandates “preserving neighborhoods.” This language is not purely aspirational, it is prescriptive.

Much to the chagrin of residents, the mandated policies and procedures to protect the character of neighborhoods and provide community members a way to meaningfully engage in the planning process are often flouted by the very government officials they rely on to represent their interests.

We Must Do Better

Government up-zoning raises issues of race and poverty, traffic and mass transit, sea level rise and climate gentrification, and affordable housing. SAPs can provide a powerful tool to help address these issues, but they can also be nothing more than wrecking balls for established but poor neighborhoods. We must and can do better when SAPs are used as intended instead of for, as Kasdin correctly stated, “entitlement grabs.”

These issues go to the heart of the social contract between government and residents. We, all of us, rich and poor, Black and white, hispanic and anglo, need to be able to have a meaningful voice and role in preserving and shaping our own neighborhoods in which we live, work and raise our children.

Marleine Bastien is executive director of the Family Action Network Movement (FANM) based in Little Haiti.

David Winker is a Miami business attorney active on civic issues.