After ‘Public’ Gym Added to Housing Development to Fulfill Requirement, Boca Officials Consider Changes

Bocora at City Center, a CIMD project approved in Boca Raton, FL. (Credit: Bocora)

Boca Raton officials will soon decide whether to modify the city’s ordinance allowing properties zoned for commercial or industrial to convert to residential space, as intense housing demand replaces much of the demand that was once envisioned for offices. The city’s Commercial-Industrial Multi-family Development ordinance – known as CIMD – enables a certain number of these sites to be rezoned to allow residential uses, as long as commercial businesses are included in order to maintain a thriving and livable community. But some officials and members of the public have cried foul at the implementation of the ordinance, holding that developers add small gyms, tutoring centers or other facilities that would usually be considered building amenities to their projects in order to fill the commercial requirement.

Such facilities, opponents of the current code hold, are indeed commercial in nature, but are open to the public only in a technical sense. In other words, an apartment or townhome community’s gym may be legally open to the public, but in practice it is really an amenity for residents. The issue came to head when just such an addition was made to the Bocora development at 6419 Congress Avenue. A planned gym was essentially converted from a private amenity to a publicly available, 2,086 square foot facility to comply with the ordinance, rather than expressly fulfill the intended purpose of sparking business development that complements a neighborhood.

Last week, the city’s planning and zoning board voted unanimously to recommend a change to the ordinance that would specifically disallow gyms, fitness centers and “personal services” that include uses such as tutoring centers from counting toward the commercial requirement.

“Such uses do not meet the intent of providing ‘retail sales or services’ as part of, or in proximity to, CIMD projects,” a memorandum from city staff to the board stated.

The updated ordinance, which has yet to be adopted by the city council, establishes a tighter definition for “retail sales or services” which would mandate the sale of goods or merchandise directly to the ultimate consumer. The ordinance revision would expressly exclude a fitness center or gym, or uses that “primarily provide on-site activities or memberships rather than retail transactions,” as well as tutoring or similar educational and instructional services.

In order to ensure that any use satisfying the “retail sales or services” requirement is bona fide, the proposal requires that any such business be a distinct, separate operation that is publicly accessible during posted business hours  – at least 60 hours per week. It also must include a ground floor pedestrian entrance from outdoors that is separate from any pedestrian entrance intended for the residential use, as well as exterior signage that “markets itself as would be expected by a business.” Finally, the revision clarifies that any change of use be specifically approved by the city in order to ensure that the requirements remain fulfilled.

Planning board members ultimately pared down the 60 hour requirement to 45 hours in their recommendation, which will be taken up by the city council at a future meeting. As it currently stands, the non-residential requirements for CIMD properties mandate they must be located within a quarter-mile from the residential portion and take up at least 10,000 square feet of space. There are also provisions that, if applicable to a particular property, carve out a requirement that commercial uses must be equal to at least 10 percent of the residential development.

“The city’s experience in applying such requirements shows a need for clarity regarding what constitutes a ‘retail sales or services’ use, specifically such that any use satisfying this requirement meets the code’s intent, which is essentially to provide easily accessible businesses to meet the daily needs of residents, employees and others to reduce vehicle trips and vehicle miles traveled, and to encourage trips by modes of transportation other than single-occupant vehicles,” the memorandum said.

Historically, uses such as gyms and personal services such as tutoring centers have been considered under a broad category of “retail,” however the city’s building staff has found that such uses do not meet the intent of providing “retail sales or services” to the community.

“It just takes a demonstration that it’s real,” explained City Planner Brandon Schaad at the board meeting, responding to a question over marketing requirements for such businesses. “Eyes on the street is an important element.”