Miami Beach board approves after-the-fact variances for homeowner caring for elderly relative

The Zoning Board of Adjustment on Sept. 8 approved after-the-fact variances that allow two one‑story additions to remain on a single‑story home at West 40 Second Street, finding the legal standard for variance relief met and attaching conditions to mitigate neighborhood impacts.

Board members voted 6-0 to grant variances for interior side setbacks, a reduced rear setback and a slight shortfall in required pervious open space, subject to a required landscape plan, correction or permitting of an unpermitted driveway expansion on Prairie Avenue, and a condition that the bathroom serving the addition be enlarged and made accessible if required by the Building Department.

The property owner, who spoke through applicant Jeffrey Callas, told the board the additions include a bedroom and a specially equipped room used by an elderly relative with Alzheimer’s disease and limited mobility. "We would like you to pass this variance," Callas said, describing the room’s wheelchair access and the hardship that removing it would cause the family. Neighbors who live nearby and people who said they have known the family for years testified in support of the variances, saying the additions have not caused noticeable harm.

Staff described the work as "after‑the‑fact" construction and laid out the specific code departures. Planning staff said the additions reduce the interior side yard setback where code requires 7 feet, 6 inches — one addition now sits roughly 3.1 feet from the interior side yard and another about 0.7 feet — and the rear yard in places is about 2 feet where 20 feet is required. Staff also reported that the property provides 63% pervious open space in the rear yard, short of the 70% required by the zoning code. The report noted the structure’s finished floor elevation is about 5.5 feet NGVD, below the 9‑foot baseline for new construction, and that roofs of the additions are located at roughly 14 feet NGVD, a height staff compared to allowed fence heights to help quantify visual impacts.

Planning staff recommended approval, concluding that hardship and practical difficulty standards had been met and proposing conditions to reduce impacts: submit a full landscape plan for staff review as part of the building permit; either remove or obtain a right‑of‑way permit for the unpermitted driveway expansion on Prairie Avenue; and satisfy all applicable building‑code requirements as part of the after‑the‑fact permit process. During deliberations board members and staff discussed a practical condition proposed by Board Member James Silvers: allow the applicant to expand the bathroom toward the south by up to 3 feet and require a three‑foot door so caregivers can safely transfer a wheelchair bound resident. Planning staff said requiring or permitting the bathroom expansion would give the owner the flexibility needed to meet building‑department accessibility requirements when applying for an after‑the‑fact permit.

After public comment and board discussion the motion to approve the variances with the conditions passed 6‑0. The board recorded that the landscape plan must be submitted and approved as part of the building permit, the driveway either be permitted or removed to meet setback and open‑space requirements, and the applicant must satisfy all building‑code conditions for the after‑the‑fact permit. The approval preserved the variances as constructed, subject to those conditions.

The board’s action does not change any separate building‑permit review that the owner must complete. Staff reminded the board that even with the zoning variances granted, the owner must still obtain an after‑the‑fact building permit that satisfies structural, accessibility and other building‑code requirements before receiving a certificate of occupancy or resuming any rental or commercial use of the additions.