on’t start switching any prescriptions to Walgreens just yet.
Village Council members voted 5-2 Tuesday, December 3, to defer a site plan hearing for a Walgreens pharmacy and liquor store at the Key Biscayne entry block until next February 11 in hopes of giving Village staff time to get more specific, local information regarding how much traffic the stores will generate. Council members Ed London and Jim Taintor were the no votes.
The decision came over the pleas of the developers, who said they have waited an uncommonly long time for a hearing and have fulfilled all of the Village’s requirements – Attorney Neisen Kasdin called the traffic study unnecessary, unprecedented and, most importantly, not even listed as a requirement in the Village of Key Biscayne zoning code.
“Let us have our day in court,” Kasdin implored the Council.
But local leaders said they are simply exercising caution by approving the deferral.
Council member Michael Kelly said any inconvenience the applicant feels they suffer from what amounts to a 60-day delay is minor compared to the burden the public could face if the Council, acting on incomplete information, approves a development that clogs the Key’s main streets.
“A 60-day delay is nothing in the big picture,” Kelly said, “but if we act and we make the wrong decision, we’d potentially inconvenience the Village for a generation. Because of the potential impact on a community that already has terrible traffic problems, I think it’s our duty to defer this until further study is done.”
Kelly made the motion to defer at Tuesday’s hearing, getting a quick second from Council member Mayra Pena Lindsay. Both said they’re concerned the traffic study the Village solicited from Atkins North America uses national standards from the Institute of Traffic Engineers, or ITE, rather than specific local standards; Kelly added the study was for a pharmacy, and the proposed Walgreens will really function as a convenience store.
Building, Zoning and Planning Director Jud Kurlancheek’s report to the Council also highlighted concerns with the traffic study, noting Atkins acknowledges its standard rates and equations may not fully reflect the actual situation because of a “unique condition” – that the Village is 6 miles from the mainland, and therefore residents prefer to shop on-island for convenience items.
Kurlancheek added ITE itself states that when a unique condition exists, cities may conduct their own Trip Generation Rate studies based on a similar local site.
Vice Mayor Michael Davey and Council member Jim Taintor shared the concern, and both were critical of Atkins for giving the Village a product it can’t use.
Davey, calling the study “ludicrous,” apologized to the developer: “This isn’t on you, this is on us. I’m embarrassed on behalf of the Village – this is our fault.”
He added, “I’m not happy at all that this is what we got for the money we spent. Do we get our money back?”
Taintor – who pushed unsuccessfully to go ahead with the hearing, or at least portions of it, and then decide whether to defer an approval vote – said he would hope Atkins would provide the additional work the Village needs as part of its original $27,000 fee.
Davey later asked to add an item to Tuesday’s agenda to discuss the specifics of the new traffic study moving forward.
While a majority of Council members shared the concerns, Kasdin said further delays are unfair – he noted both the Village’s traffic study and a traffic study solicited by the developer state the Walgreens will not create a traffic burden, and added experts from both traffic engineering firms were in the Council Chambers Tuesday to address any questions local leaders had.
He argued it’s “common sense” that the store won’t add much traffic, as Walgreens stores are not destination stores and the project is smaller and less intense than the former uses it replaces at the entry block – a real estate office, restaurant, liquor store and nightclub.
Kasdin added ITE’s standards are relied on by almost every government entity in the nation, and are typically more conservative than any other analysis that could be performed.
Kasdin also cited the marathon length of the process. He noted his client started talking to the Village about the Walgreens nearly a full year ago, filed their site plan application in March, and appealed and then resolved the appeal on the Village’s decision that the plan was insufficient.
He added no one even mentioned a traffic study until very late in the game – mid-October.
But most importantly, Kasdin stressed, the Village’s zoning code doesn’t even mandate a traffic study for a project that is smaller and less intense than what it replaces.
“The Village code does not require a traffic study by the applicant or the Village,” he argued. “We have fulfilled every single requirement set forth in your city code for site plan submission – one of those requirements is not a traffic study.”
Case in point, he noted the Village never required a traffic review for a number of similar – and in most cases much larger – projects than the proposed Walgreens, including the expansion of the CVS pharmacy, Key Colony Plaza and the Oceana condominium.
“This project is being treated differently than all other similarly situated projects,” he said. “To ask the applicant to wait until February for a traffic study that is not required under the Village’s own site plan standards is not fair, and we request that you let this site plan hearing proceed.”
The Council was not swayed, with local leaders voicing additional concerns.
Mayor Frank Caplan noted the traffic study’s failings forced Kurlancheek to submit an incomplete recommendation to the Council, and, “I don’t think we can reach a decision without a recommendation from our staff.”
Council members also noted they don’t really know what will end up on the site – in response to questions from London, Village Attorney Steve Helfman explained the Council approves a site plan, not a use, so the building could be leased to any tenant allowed in the commercial zoning district: “They don’t come back here every time they get a new tenant,” he added.
Therefore, the Village Attorney said, it is reasonable for the Council to want a traffic study that explores all potential uses.
Meanwhile, Davey noted the site plan includes room for a “future standalone building” that adds some 8,000 square feet – and potentially more traffic – to the site.
Although Kasdin noted development of that building would be subject to another Councils site plan approval hearing, meaning local leaders could deal with its traffic generation then, it wasn’t enough to overcome the Council’s reticence.
London did voice some concerns about deferral – he agreed the applicant has already waited a long time, and noted if the Council refuses to allow any tenant that generates traffic, then, “What we’re saying is, he can’t have anything there, so his property is worthless.”
But Helfman said that isn’t a stance the Council would take: “I wouldn’t let you do that, because under that circumstance, you could be accused of a taking,” he said.
Instead, Helfman explained, he would likely recommend conditional approval predicated on the building being occupied by a use that limits traffic burdens to a specific level.
With that in mind, he added, he feels the Council is well within its rights to decline to use traffic studies based on national standards and instead seek more localized information – and therefore, Kasdin’s argument that the Village zoning code doesn’t require a traffic study is irrelevant: “It’s not about concurrency, it’s about functionality, safety, the number of trips generated.”
Caplan agreed, noting part of the review process in the zoning code does indeed involve deciding if a project is compatible with the surrounding area, and the Council is doing just that by getting more local traffic data.
It’s a process Village officials said will take a couple months, hence the 60-day deferral.
Kurlancheek said considering the amount of visual surveillance, traffic counting, comparisons to other local sites and analysis that will need to be done – plus the fact that the holidays are fast approaching – means he would be ready with a recommendation in late January at the earliest.
That led Village Manager John Gilbert to recommend the February 11 date; the Council agreed.
Walgreens site plan hearing delayed until February
on’t start switching any prescriptions to Walgreens just yet.