ICA to Village: Bypassing public scrutiny is against the law
January 24, 2023
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It is hard to imagine the Crooked Palms Brewery/Distillery/Outdoor Entertainment venue and process getting worse, but it has. The rules of process and variances have been bent so far, they’ve become a big, crooked mess.
The public needs to pay attention to this Council meeting on Tuesday, December 6. Attend in person or tune in on TV or your laptop.
There is a lot to unpack here, but this is Sue’s punchline: “How in the world did the Planning staff spend the last year dealing with this project, recommending changes, and then in September of 2022, give up and recommend denial based on so many compliance issues. And then two months later find a way, to recommend approval with only minimal landscaping changes.”
CONSIDERING THE REQUEST OF 90184 RENTAL, LLC. (CBT CONSTRUCTION & DEVELOPMENT, INC., AGENT) FOR MAJOR CONDITIONAL USE APPROVAL TO ALLOW FOR THE REDEVELOPMENT OF THE PROPERTY FOR A BREWPUB/RESTAURANT/DISTILLERY WITH THE CONTINUATION OF SEVEN (7) EXISTING DEED RESTRICTED RESIDENTIAL HOUSING UNITS ON THE SECOND FLOOR; ALONG WITH OUTDOOR SEATING PURSUANT TO CHAPTER 30, ARTICLE VI, DIVISION 9 (OUTDOOR SEATING); ALONG WITH
PARKING, LANDSCAPING, AND BUFFER RELAXATIONS FROM THE PROVISIONS OF THE VILLAGE’S LAND DEVELOPMENT REGULATIONS; FOR PROPERTY LOCATED AT 90184 OVERSEAS HIGHWAY ON PLANTATION KEY WITHIN THE VILLAGE CENTER (VC) ZONING DISTRICT, WITH REAL ESTATE NUMBER 00431870-000000. (File No.: PLCUP20210151/PLVAR20220094
A review of the proposed redevelopment of the bank property at 90184 Overseas Highway has numerous issues of concern:
Alcohol and Tobacco Tax and Trade Bureau (TTB) of the Federal government govern permits under the Federal Alcohol Administrative Act.
Does the Federal Law matter to the Village?
Village opinion from Weiss Serota
An attorney at Weiss Serota, Markenson Pierre, spent considerable time researching “whether § 19.52 is applicable as to the Village Council during the application for development approval stage.”
His conclusion, in summary, seemed to be “A sensible reading of § 5178(1)(A) makes it clear that the Secretary or his delegate, not the Village Council, is charged with both the responsibility and authority to regulate the location of distilled spirit plants.”
Does the Village have any obligation when considering development approval to require confirmation as to Federal and State approvals? Or to make it a required condition?
When the Affordable Housing was permitted upstairs in this building the permit stated: The applicant or permit holder shall obtain all applicable state and federal permits prior to the start of construction for the development authorized pursuant to this permit.
Federal supremacy and preemption refers to the idea that all state and local laws must not conflict with federal law. The federal law is considered the supreme law and it always supersedes state or local law.
Throughout Village regulations there are consistent references to the support and coordination of Federal and state laws and policies.
Land Development Regulations
In Village Land Development Regulations (LDRs) a search using keyword “Federal” – there were 62 references to the federal government.
Examples:
Village Comprehensive Plan
In the Village Comp Plan: the keyword “Federal” was used 81 times. Phrases like this come up repeatedly – To all applicable building statutes, codes, ordinances, and regulations, whether federal, state, or local
Resolutions approved by Council following similar public hearings typically provide a stipulation:
Except as otherwise provided herein, applicant/owner agrees to comply in all respects with any applicable Federal, State, County, or local rules and regulations.
Conclusion It would appear that the Village should and does attempt to support and coordinate regarding federal laws.
Specific Legal Use References in Village Code
In the Comp Plan and in the LDRs, distillery is not listed as a legal use in any zoning classification in the Village. There were zero references to distillery but there are multiple references to brewpub and microbrewery in the LDRs.
In 2015, the Village updated their regulations to add brewpub and microbrewery as legal uses. The village has never added distilleries as a legal use in Islamorada.
While it may be argued that the distillery being considered at MM90 is nothing more than a drinking place or bar, that is absolutely not the case. Health and safety concerns must be regulated for a distillery operation.
Both the state and federal government require permits and licenses with unique regulations governing a distillery.
The Village Alcoholic Beverage Use Permit regulations require public hearings to approve sites as appropriate for corresponding alcoholic beverage classifications (such as 2COP, 5COP, etc.) The classifications of state licenses required for distilleries is not included in the Village regulations – perhaps because distillery has never been a legal use in Islamorada. The Islamorada Distillery at MM82 has a Florida distillery license but has not had a public hearing for an Alcoholic Beverage Use permit, perhaps because the distillery license does not require a use permit by Village code. If distilleries are made to be legal, the Alcoholic Beverage Use Permit classifications should be updated.
The Village code provides great detail as to the legal uses allowed in the various commercial zoning classifications:
The Conditional Use Application was submitted to the planning department August 17, 2021
Why was the application even accepted? On page 3 of the application, Attachment A lists the documents required. Items on the list but not checked as included: Site plan, floor plans, elevation drawings, landscaping plan, outdoor lighting plan, stormwater management plan, traffic study, and more.
The applicant signed the application certifying that all information required as indicated in Attachment A and B, was provided.
The Conditional Use Application was initially processed erroneously as a minor conditional use. In Village Center zoning uses that must be reviewed as major conditional uses include “Bars, taverns, and drinking places 10,000 square feet or less and Brewpubs of 3,001 to 5,000 square feet”
In May of 2022, the project was correctly changed to a major conditional use based on the fact the building being redeveloped exceeds 3000 sq ft.
Numerous changes have been made since the original application was submitted, primarily related to outdoor area and seating, classifying 4,751sq ft in the most recent staff report to outdoor seating with 32 seats.
A food truck has been added as part of the outdoor area. Justification for the food truck is to provide food options currently lacking in the Village Activity Center. When justifying the drinking establishment itself, they cited the fact that PayFair, Craig’s Restaurant, and the 7-11 all sell beer, wine or alcoholic beverages. They all also provide food options.
The notice for the December 6 Public Hearing states the purpose of the hearing is to consider the request for a Major Conditional Use for redevelopment of the property for a Brewpub/Restaurant/Distillery along with parking, landscaping, and buffer relaxations (variances).
The August 25 notice for a public hearing stated it was to consider the request for Major Conditional Use approval to allow the redevelopment of the property for a Brewery/Distillery/Tasting Room, not mentioning restaurant use or the relaxation of the parking, landscaping or buffers.
According to Village Code, site plan approval must be obtained prior to issuance of a building permit for any nonresidential development project that would constitute a substantial improvement on property with frontage on a major street and all property within the Village Center (VC) zoning district.
According to Sec. 30-216 (a) of the Village code, Conditional use review shall be accompanied by a site plan.
Even though no site plan application has been submitted to the Village for the property at 90184 Overseas Highway, a building permit was issued on July 19, 2022 for the first phase of the Crooked Palms project.
The site plan is the key land development review mechanism for all development permits. It is intended to assure adequate site design in relationship to adjacent development and public facilities.
Only the Landscape plan, and not the complete site plan, was included in the Major Conditional Use Public Hearing agenda item for review by the Council.
The site plan review was combined with the conditional use review according to the planning department. This does not appear to be consistent with the site plan review requirements in Village code.
As part of the site plan review process, the Village must provide posted and written notice to adjacent property owners of the Village’s intent to issue
the site plan approval. Within 30 days of the last date of the required notice, the applicant or an adjacent property owner may request a public hearing on the site plan application permit in writing to the director.
While the property was posted with the notice of the public hearing for the Major Conditional Use and the Relaxation of parking, landscape and buffer requirements (variance), the notice did not include notice of required approval of the Site Plan.
Site plans are recorded with the County clerk when approved. No site plan approval could be located on the website for the Monroe County clerk.
Because no separate site plan application and processing occurred, the public and applicant had less opportunity to react to the staff’s review of the actual development plan. The “site plan” included in the conditional use processing, was far less detailed than the requirements in Village code for actual site plans.
At some point during the Major Conditional Use processing, it was determined that a significant number of variances would be required. A Variance application was then processed, though the application was not dated, signed or notarized as required.
The variances requested were mentioned in general terms with no specificity… only mentioning Village code by section 30-814, 30-815, 30-817, and 30-818 and describing the variance requested as “landscape requirements” without describing the extent of the variance requested.
The request did not mention the parking variance needed.
A variance is relaxation of the requirements of the Village code allowed only in cases that:
These variances do not meet the requirements of Village code:
Detrimental to the public interest: Clearly the relaxation of the parking, landscaping, buffer yards will be detrimental to the neighboring homes, especially with the outdoor entertainment area and anticipated live amplified music.
Not the result of actions of the applicant: The proposed 4,751 sq ft outdoor seating area is driven by the request of the applicant. The size of the outdoor seating area limits the ability to provide required site improvements and so it is clearly the property owners redevelopment plan that is the basis for the multitude of variances
Undue hardship on the property: The existing building provides a wide variety of opportunities for uses, thus without the variances there is no undue hardship.
The outdoor seating area is inconsistent with the spirit and intent of the Village Code. The size of the outdoor seating area limits the ability to provide parking, landscaping, and buffer improvements more consistent with Village standards.
As the staff report stated “The degree of relief requested is significant.”
Reducing the width of a buffer certainly will overcrowd the vegetation, especially the canopy trees that grow to be huge.
Why was this application for variances even processed by the Village?
According to the staff report, the applicant has made some minimal concessions in recent months.
The variance now requested would eliminate, at minimum, the following landscape requirements:
Note, according to Village code: Landscape islands must be located at the end of all rows of parking. Islands in parking areas shall have minimum landscaped areas of nine feet in width and 16 feet in length. Each island shall include at least one canopy tree. A minimum of 75 percent of trees installed in parking islands shall be canopy trees.
Two street buffers are eliminated completely because of electric power lines – one along U.S. 1 and one along Palm, while 50% of the buffer width along Gardenia St would be eliminated. Why not approve understory trees instead of canopy trees, and keep the buffer at the locations where there are power lines..
In addition, the staff report lists a variance for required parking, allowing for 41 parking spaces instead of the required 70, 14 of the 41 are required for the affordable housing on the property. A Parking variance was not on the Variance application.
No mention of the church within 300 feet.
CRITERIA: No variance shall be approved which fails to meet any of 6 standards. None of the standards have been met. Failure to comply with any standard shall be deemed adverse to the public interest.
According to the latest staff report (Dated November 17 but available for Dec 6 council meeting agenda):
However, 14 of the 41 spaces are required for the affordable housing, leaving 56 required for the Brewery/Distillery/Restaurant:
Two handicap spaces required, only 1 provided.
It appears that for the 4 spaces along U.S. One, it will be necessary to back out onto U.S. 1 to exit the property.
Except for residential uses, parking and loading spaces shall be located or served by a driveway that requires no backing movements or other maneuvering within a street right-of-way other than an alley. Both a few parking spaces and the loading a vnj pklklkl pkmo rea requires backing out.
Twelve parking spaces do not have sufficient aisle width.
The staff reports that the maximum occupancy will be limited to 160 people… with just 27 parking spaces. Even if three (3) people per vehicle is assumed, there is only enough parking for half of the 160.
Just how is the capacity of 160 determined? More critical, how is it enforced?
Separate parking for the affordable housing units (2/unit required by Village code) are not shown on the site plan.
Only in the event adequate parking cannot be provided on site, the applicant agrees to maintain a shared parking agreement with a nearby property owner. A long-term lease to provide for the required offsite parking should be part of the application, not a future promise.
Every single time this council, and the ones that came before, vote on an issue that creates more “daily trips” on U. S. One it contributes to the growing traffic congestion.
Approving Distillery/Restaurant/ Brewery at the most congested section of highway in the Keys will absolutely make horrible traffic even more horrible!
Traffic is unbearable now, but it is even more frightening to think about all the school children in the area and their increased risk. Drinking establishments at the wrong location impact quality of life and can be a serious safety concern.
The only traffic opinion that has been released for this property was when they applied for an Alcoholic Beverage Use Permit 8 months ago. That traffic opinion was from July 2021, that used statistics from the old 2017 Monroe County traffic study. The more recent 2021 traffic study shows that the Plantation Key traffic segment is the most congested segment in the entire Florida Keys with average speeds 10 miles under the posted speed limit.
And that July 2021 analysis was done before 4751 sq ft of floor area was added outdoors significantly increasing the trips that would be generated by the business.
But the worst issue is the location of the proposed development where 4 lanes merge into two, right north of three schools that further complicate traffic patterns getting vehicles on and off the highway, including high school students who drive, parents picking up younger kids, school buses, kids crossing U.S. One. And there are the kids walking down Gardenia Street from the elementary and middle schools – no sidewalks. Add folks leaving the distillery after a few drinks?
Traffic is not a new issue. It is a difficult one and the Council should be diligent to assure they don’t make decisions that result in more problematic traffic concerns.
Does this sound familiar? It was from a resolution passed by the Village Council back on June 1, 2017 asking FDOT to do a traffic analysis in the hopes some solutions could be identified… especially for the area on Plantation Key from MM90 – MM86.
Was there follow up with FDOT? But remember, Islamorada cannot expect FDOT to solve all of the traffic concerns. It is up to the Village Council to be at least a part of the solution.
Approving a Major Condition Use that would increase trip generation at the most congested location in the Florida Keys is a very bad idea!
Distilleries are among the most polluting industries because ethanol fermentation results in the discharge of large quantities of high-strength liquid effluents with high concentrations of organic matter and nitrogen compounds, low pH, high temperature, dark brown color, and high salinity.
Ethanol vapour is highly flammable and is one of the main fire and explosion hazards at distilleries.
BOD is Biological Oxygen Demand is “the amount of dissolved oxygen needed by aerobic biological organisms to break down organic material present in a given water sample at certain temperature over a specific time period.” – Wikipedia
The higher the BOD of a material/ liquid, the harder it is to breakdown, and the more impact it has on the wastewater plant.
Production of liquors requires large amounts of water, some of which is discarded as wastewater.
Organic materials and solids in distillery wastewater include remnants of distilled fruit, vegetable or grain, and water. Discharged wastewater needs to be monitored for carbon and organic pollutants as well as suspended and dissolved solids.
The U.S. Environmental Protection Agency requires distilleries to monitor their wastewater. Monitoring parameters for water quality are volume of wastewater discharged, alkalinity/acidity, electrical conductivity, total dissolved salts and sodium content. Discharge water from a distillery must be monitored for nitrogen, phosphorous and potassium.
Permit requirements may differ depending on the volume of wastewater discharged and the concentration of contaminants of concern found in the wastewater. Low concentrations may result in the implementation of monitoring measures and reporting requirements, while more problematic discharges could result in pretreatment requirements to limit the impact of the wastewater on a municipal system or the environment.
Because distilleries’ wastewater typically requires much more treatment than typical wastewater, businesses served by a municipal wastewater system are generally required to pay a higher charge for service to reflect the higher treatment costs.
DIVISION 6. – PERMIT AND DEVELOPMENT APPROVAL COST RECOVERY
Sec. 30-331. – Intent and purpose.
The intent and purpose of this division is to ensure that the various costs borne by the village, including its outside consultants, in reviewing and processing applications for development approvals and permits is directly borne by those persons deriving the benefit of the review, not the general public.
Islamorada code requires the village to maintain records of the time expended and work conducted regarding each application as well as actual costs. After the second revision to an application, all subsequent revisions are to be processed at an additional charge of ten percent of the original fee and have to be paid by applicant when the revision is submitted.
While the application was submitted over 15 months ago, numerous hearings have been canceled, usually at the last minute. Many changes have been made over the last year resulting in significant time spent on analysis and review by the Village staff.
Is the cost recovery program working as intended?
When a public record request was submitted in September 2022 asking for confirmation that the fee due with the Variance Application for Crooked Palms had been received, the response was that the applicant was aware that the fee is due and it would be paid before the public hearing.
All fees are due at the time of application. Not prior to a public hearing. Has this fee for the variance application been paid?
A public record request should not be necessary to learn whether fees required before a development application is processed have been paid.
In the resolution that is part of the agenda item, approving the Major Conditional Use and the Relaxation of parking, landscaping and buffer requirements, the approval is subject to a list of 19 conditions.
Many of the conditions can be modified to the benefit of the property owner without public knowledge.vExamples:
Seating within the proposed outdoor plaza area may be modified upon application to the Department of Planning and Development Services provided the overall occupancy of the site does not exceed one hundred sixty (160) occupants.
In the event operation of the Brewpub/Restaurant/Distillery results in noise violations as defined by the Village Noise Ordinance, the Village Council reserves the right to further restrict the hours of operation of the Brewpub/Restaurant/ Distillery, including the outdoor seating area, after due notice and a public hearing.
Village Council after a public hearing to amend, alter, annul or repeal any or all of the foregoing covenants and/or restrictions at any time with the consent of the owner or owners for the time being of the premises therein described, and such right shall be effectual and may be exercised without the consent of any adjacent owners or other owners or lienors of any other property.
The Village reserves the right to address any traffic safety concerns associated with the operation of the proposed loading area after due public hearing and testimony provided by a traffic safety expert.
(Should safety concerns not be dealt with immediately?)
On-street parking shall be prohibited in connection with the subject parcel. Enforcement?
If parking is not adequate, will shared parking at an inappropriate location create additional issues for the Gardenia Street neighbors? And more traffic in the neighborhood? Shouldn’t the offsite parking lease be a part of this conditional use hearing?
Why would the Council approve a project that fails so significantly to meet the required conditions established in Village code. The 19 conditions intended to deal with any failures are not realistic and are likely to be enforcement nightmares to the neighborhood and will require public hearings to fix.
In order to accommodate a single property owner and the folks who want a more convenient drinking place, a family neighborhood should not be jeopardized.
THEN: The September 06, 2022 staff report regarding Crooked Palm acknowledged the unacceptable requests, procedure and extreme variances required:
Review of Major Conditional Uses is governed by Village Code Section 30-216
(d). The Village Council must establish that the proposed use meets all of the standards contained within the Code.
In this instance, the applicant fails to meet five (5) of the seven (7) factors contained within the Code.
It is noted that, pursuant to 30-216 (d), no conditional use shall be approved which fails to meet any standard. Further, failure to comply with any standards shall be deemed adverse to the public interest.
The subject application also involves landscaping, buffer, and parking relaxations with the degree of relief ranging from 50% to 100%. Village Code Section 30-221 governs variance review. The Code establishes a 6-part test to evaluate variance requests.
A review of the subject application reveals that the applicant fails to meet a majority of the factors needed to support relief.
It is noted that the Village Code specifically states that “no variance shall be approved which fails to meet any” of the six (6) factors contained within the Code. Section 30-221 further that “failure to comply with any standard shall be deemed adverse to the public interest.”
In this instance, as discussed above, the application fails to meet the factors needed to support the variance request.
A resolution for council vote in September, 2022, prepared at that time that read in part:
The Village Council, having considered the testimony and evidence presented by all parties, including Village Staff, does hereby find and determine:
The Application for a Major Conditional Use and associated variances fail to meet the requirements set forth in Code Sections 30-216 and 30-221 and has failed to demonstrate through competent substantial evidence that the criteria for granting the Request have been met; and
The Village Council denies the Request submitted by the Applicant, which is attached as Exhibit “A” and incorporated herein by this reference
The Public Hearing scheduled for September never took place. The applicant was given additional time to make adjustments to his plans. How much time and taxpayer costs have the staff utilized to help this applicant overcome his own faulty plans?
NOW: The staff report submitted November 7, 2022, 62 days after the September staff report, portrays a completely different review result. And the staff prepared a resolution this time recommending approval of the conditional use:
The Village Council, having considered the testimony and evidence presented by all parties, including Village Staff, does hereby find and determine:
How in the world did the Planning staff spend the last year dealing with this project, recommending changes, and then in September of 2022, give up and recommend denial based on so many compliance issues. And then two months later find a way, to recommend approval with only minimal landscaping changes.
Apparently the conditions attached to the proposed approval are intended to address the 5 of 7 factors that fail to meet the requirements. The conditions enumerated do not eliminate the failures. Enforcement of the conditions is extremely problematic.
The finding of facts in the new resolution eliminates the statement that the application meets the variance requirements of Code Section 30-216 and 30-221 because it does not!
Here’s a little of ICA’s philosophy.
Village conflicts are often rooted in differences between the residents who seek to protect quality of life and our environment versus those that exploit local resources as a means of achieving economic gain.
The ICA emerged two years ago to educate and guide local participation to meet the challenges presented when it appeared that the environment and quality of life issues were taking a backseat.
For too long, the public was quiet, and investors emerged, exploiting loopholes in our regulations for personal gain. And no one was there to say “NO” and demand change. So, here we are, doing our very best.
Our water and existing infrastructure could be threatened.
Distillery wastewater and its toxicity is a serious concern. Worldwide, they serve as one of the major sources of environmental pollution due to the discharge of a huge volume of dark colored wastewater. This dark colored wastewater contains very high biological oxygen demand, chemical oxygen demand, total solids, sulfate, phosphate, phenolics and various toxic metals.
A “brewery-distillery-rental-units-entertainment-complex” goat rodeo.
In case you’re not familiar with the term of art, a goat rodeo is a slang term for something going totally, unbelievably, disastrously wrong, and there’s nothing left to do but to sit back and watch the trainwreck.
By now you know that sitting back and watching a trainwreck is just not in the ICA’s DNA. Though most of us would rather be fishing, we volunteer our time to show the people of Islamorada what the heck is going on, right under their noses.
How to Ruin a Town: Exhibit B
Keep in mind, trouble doesn’t happen in one move. Oh, no, trouble comes through a series of smaller, more insidious hops that over time turn into big hairy problems, like the consistent traffic nightmare of moving from one part of town to another.
We’ve written about the proposed Crooked Palm Distillery project before. In fact, it was on the Village Council agenda on August 25, 2022, but got pulled at the last minute once staff and the Council saw and felt the neighborhood roaring back with a big fat, “Heck NO!”
It’s the site of the old BT&T bank building, between Captain Craig’s and the new 7-11 at mile marker 90 bayside. It’s where four lanes of highway merge into two. Also nestled into this crazy intersection are two schools and a neighborhood. It’s where traffic is stopped throughout the week with buses of school children, parents pick up, and school crossing for boys and girls walking from one side of the highway to the other. It’s where kids on bikes and skateboards can be found.
What the what?!
On what planet would you allow a bar, with a brewery and distillery, and entertainment venue operating from 9 am to 10 pm every day (1am on the weekends) to be added to rental apartments and plunked into this congested location?
Adding insult to injury, to make this favor-ridden, exemptions-granted, ill-conceived, bumper-to-bumper traffic-inducing project work, the applicant is requesting upwards of 65 variances in nine separate categories depending on how it’s calculated.
Variances-Schmariances.
Let’s set aside all the technical deficiencies for a moment. Common sense should win the day, sending the applicant back to the drawing board for a project that is compatible in use and intensity.
There is only one powerful antidote for this and other assaults on our town – you, times 100. If you cannot make it to a Council meeting, no problem, a quick email to each of the Councilmembers will go a long way. It’s quick, easy, and free.
Write your own message or use a version of ours: Staff and Council, you need to stop forward progress on the Crooked Palm Distillery. You are going the wrong way. Worse, you’re taking all of us with you.
PS- In case you were wondering, yes there are also literal goat rodeos, and they are ridiculously adorable. The Crooked Palm Distillery, however, is not.
Paradise lost sneaks up you. It's death by a thousand cuts.
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