Wasted Space

This waterfront plot in Coconut Grove isn't park land,it's a factory. A lawsuit factory.

The city's attorneys don't have a lot of trust in the owners, nor for the lawyers who represent them. Lead attorney Joe Fleming asserts that the partners have filed so many lawsuits and set so many legal traps that he has no cause to believe they've changed their ways. Goldstein's presentation might very well be another trap, he figures, designed to demonstrate that the city "took" the land by keeping the low-density zoning. "He says his heart is in the right place and that he is from the Grove," Fleming says. "But I tell him: 'It doesn't matter where you are from, you have to be careful that you are not setting up the city for a lawsuit. They are going to take all this [information] you collected and put it in their context and then be able to force the city to give them whatever they want. At that point, Michael, you will not be the architect of a settlement, you will be the architect of a high-rise.'"

Goldstein is accustomed to such admonishments. Ever since he proposed a dialogue with Treister and Scharlin, he has been criticized by park activists for selling out to developers. "Working hand in hand with the property owners has not been a tremendously easy process," he admits. "I have come under attack by certain segments of the community who feel I am naive or have been co-opted by the property owners or that I've negotiated a settlement or made a deal to profit from it." He estimates that he has collected less than $2000 for his work, a far cry from his hourly rate, which by now would have netted him closer to $40,000. (Howard Scharlin refers to Goldstein's costs as "peanuts.")

"I am not paranoid," Fleming insists. "I act this way because I litigated this, because I know the case history. I paint them as being very, very interested in litigating because that's what they have been doing for a long time. I would think that if they really wanted to [turn the land into a park], then Mr. Goldstein could initiate the process. The city doesn't own the property, they do. They could sell it to the state any time they want."

Or to the city, Fleming adds. But before that could occur, or even before sale negotiations could begin, he demands that the partners sign a legal agreement never to sue the city again.

"They want a full release!" snorts Goldstein. "There is no way in hell I'm going to do that -- to give away every right simply for the privilege of sitting down with the city to discuss what may or may not occur!"

Attorney Toby Brigham suspects Fleming's insistence on a release might be a ploy of his own, designed to drag out the sale indefinitely. The only pending lawsuit, Brigham points out, is Fleming's own, seeking fees for himself and cocounsel Gary Held and Parker Thomson. (The three lawyers signed with the city at a mere $50 an hour, a modified pro bono rate that covered only costs. But under Florida law, winning attorneys in pro bono cases can sue the losing side for fees.) Fleming could collect more than $1.5 million. "I think Joe Fleming has enjoyed being special counsel for the city," Brigham confides. "Mr. Fleming is conditioned because of the fact he would love to keep this [potentially lucrative contract] for himself. There is a lot of money to be made in city fees."

While Fleming concedes that he'll gladly take the money if he can get it, he is adamant that he's not impeding a deal. "I am very interested in this coming to a close," he offers. "Frankly, I do enough pro bono work. I don't need to see the Treister case in the Grove go from ten years to twenty years."

The owners seem to share his desire to bring the matter to a close by selling the property. "I have been with this so long I am not looking to hurt anyone," says Howard Scharlin. "I would like only to get a fair price for the property. I don't want to be involved in court procedures any more. I am worn out."

Even the city remains onboard, though somewhat guardedly. J.L. Plummer, on advice of Fleming, chooses his words carefully when he endorses the land's sale. "I support it being put into public ownership," the veteran commissioner says. "I am not going to be put in a corner by saying I want it to be a park, but I support acquiring it for public use."

Everyone is in agreement, and yet nothing is being done. "Right now we are at an absolute impasse and I don't understand why," Goldstein complains, adding that time is running out on the deal he presented to the commission: Unless the city shows interest, the state might decide to spend the Commodore Bay money on another piece of property somewhere else. If necessary, Goldstein says, he will sue the city to enforce the Bayside Agreement, in which Plummer said the purchase of Commodore Bay was a top priority.

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