Dade Considering Exceptions To Height Limits, If FAA Agrees

Miami-Dade is considering revising rules for zoning height limits in the county.

If approved, developers in certain areas could be granted an exception to height limitations put in place by the county’s Aviation Department. The FAA must also agree to the height, on a case by case basis. Currently, no variances are allowed.

The new rules would not affect the Downtown or Brickell area, which fall outside of the exception area.

Dade commissioners tentatively adopted the new ordinance on April 10. The new rules must also be approved by several Dade committees.

 

text of ordinance:

WHEREAS, the Miami International Airport (Wilcox Field) (”MIA”) is a major economic engine for Miami-Dade County; and
WHEREAS, the zoning regulations applicable to MIA include a variance procedure set forth in Section 33-342 of the Code; and
WHEREAS, although the variance procedure generally applies to the MIA zoning regulations, the Code expressly provides that variances from certain airport zoning regulations may not be obtained; and
WHEREAS, in the interest of aviation safety and airport viability, Section 33-349 of the Code prohibits variances from airport zoning height limitations; and
WHEREAS, in some instances, the height regulations in the Code are more restrictive than applicable federal standards and regulations; and
WHEREAS, the amount of revenue-generating payload (passengers and cargo) on any given flight can be directly impacted by tall structures; and

WHEREAS, the FAA review process does not consider economic impacts when evaluating proposed structure heights; and
WHEREAS, nevertheless, there may be limited circumstances in which height variances could be appropriate; and
WHEREAS, this Board wishes to update the MIA zoning regulations, to permit applications for variances from the height limitations >>in certain areas depicted on the map entitled “Height Zoning Surfaces – Variance Eligible Areas,” a copy of which is attached hereto as Exhibit A,<< 1 in limited circumstances where a proposed structure or use complies with federal height and airspace standards and regulations and has been approved by the Federal Aviation Administration; and
WHEREAS, in such circumstances, the applicant will still be required to demonstrate that the requested variance is otherwise consistent with all other requirements of the Code and that it does not comprise aviation safety or airport viability; and
WHEREAS, to obtain such a variance under the standard set forth in Section 33-342, the applicant must show that “a literal application or enforcement of the regulations would result in unnecessary hardship and the relief granted would not be contrary to the public interest but granting thereof would do substantial justice”; and
WHEREAS, in determining whether such standard has been met, the following criteria pertaining to the “public interest” must also be considered: (a) the nature of the terrain and height of existing structures; (b) public and private interest and investments; (c) the character of flying operations and planned future development of Miami International Airport; (d) federal airways as designated by the Federal Aviation Administration; (e) whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at Miami International Airport; (f) technological advances; (g) the safety of persons on the ground and in the air; (h) land use density; (i) safe and efficient use of navigable airspace; and (j) the cumulative effects on navigable airspace of all existing structures, proposed structures identified in the Comprehensive Development Master Plan, and all other known proposed structures and uses in the area; and
WHEREAS, accordingly, this Board wishes to amend Section 33-349 to permit applications for variances from height limitations in limited circumstances, subject to the variance procedures and standards as currently set forth in the Code,
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. Section 33-349 of the Code of Miami-Dade County, Florida, is hereby amended to read as follows:2
Sec. 33-349. Airspace Approvals.

No permanent structure may be erected, constructed, located or otherwise established within the MIA Airport Zoning Area unless it has been issued an appropriate development permit(s) by Miami-Dade County or the municipality in which it is located. Except as provided for hereunder, no development permit for any structure or tree (whether permanent or temporary, natural or man made) to be erected, planted, located or otherwise established, within the MIA Airport Zoning Area shall be issued by the county or any municipality unless such development permit has been approved in writing by MDAD and meets the review criteria created pursuant to this article.

For permanent structures or trees, such approval is required for (1) all structures or trees on property located within or bifurcated by the all objects review boundary; (2) for all structures or trees greater than or equal to 35 feet AMSL on property located within or bifurcated by the 35 foot AMSL review boundary; and for all structures or trees greater than or equal to 200 feet AMSL on property located within or partially within the MIA airport zoning area but outside the 35 foot AMSL review boundary. For temporary cranes or other temporary structures, such approval is required if such structures meet either the crane review criteria or the events review criteria set forth in this section.

In all instances, whether in the incorporated or unincorporated areas of Miami-Dade County, a copy of any application for a development permit that requires approval by MDAD pursuant to this Section 33-349 must be submitted to MDAD for review prior to the issuance of any development permit based on such application. Each such application for a development permit shall indicate the height (AMSL) of all applied-for structures. Any development permit subject to the review and approval process of this Section 33-349 that is issued without the written approval of MDAD shall be voidable through an original action by a court of competent jurisdiction regardless of the expiration of any otherwise applicable appeal period for the challenge of such development permit.

Temporary cranes or other temporary structures, which meet the crane review criteria of this article, but which do not require a development permit for their erection, installation, siting, operation, or use, shall receive written approval from MDAD prior to their erection, installation, siting, operation or use if so erected, installed, sited, operated or used anywhere within the MIA airport zoning area. Temporary events, which meet the temporary events review criteria of this article, but which do not require a development permit for their installation, siting, operation or use, shall receive written approval from MDAD prior to their installation, siting, operation or use if so installed, sited, operated or used anywhere within the MIA airport zoning area.

In addition, neither Miami-Dade County nor any municipality or other entity shall issue any development permit, or allow the use of a crane, or otherwise allow any other structure to be erected, located or otherwise established within the airport zoning area unless such structure has been reviewed and approved by the FAA if the structure meets FAA notification criteria set forth in Title 14 of the Code of Federal Regulations, Part 77, as amended.

Notwithstanding any provisions of this chapter, in approving any permit under this article, the Director of the Miami-Dade Aviation Department shall require the owner of the structure for which a permit is being sought, to install, operate and maintain thereon at the owner’s sole expense, such marking and lighting as may be necessary to indicate to aircraft pilots the presence of a structure, such marking and lighting to conform to the specific standard established by rule of the Department of Transportation and Federal Aviation Administration Advisory Circular 70/7460-1k change 1, or most recent update.

In order to comply with Federal Aviation Regulations, the Director of the Miami-Dade Aviation Department shall have the right to order structure or tree heights to be lower than the height limitations established in this article. For the sake of aviation safety and airport viability, there shall be no variances from or exceptions to the height zoning limitations of this article>>, except that a variance may be applied for pursuant to section 33-342<< >>in the areas identified on the map entitled “Height Zoning Surfaces – Variance Eligible Areas,” a full scale copy of which is on file with the Miami-Dade Aviation Department, provided<< [[where]] >>the proposed structure or use meets applicable federal standards and regulations and has been approved by the Federal Aviation Administration<<.

The Director of the Miami-Dade Aviation Department or designee is authorized to appeal or otherwise legally contest decisions of a municipality granting development permits that are subject to compliance with this article, for failure to comply with the airport height zoning standards of this article.

Applicant shall pay any applicable review fees to MDAD for its reviews performed in accordance with this article. Review shall not commence until the appropriate fees are paid to MDAD.

 

variance eligible areas: