Wasted Space

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

The hugs were a good sign. So were the back slaps and handshakes that followed Michael Goldstein's presentation to the Miami City Commission last July. In ten short minutes on that summer morning, the environmental lawyer and activist had solved a twelve-year legal puzzle. Thanks to his work, it looked as if a piece of cherished Coconut Grove property that once was slated for massive development would finally become a public park.

Armed with posters and charts and speaking with the confidence of a poker player holding four aces, Goldstein had explained to commissioners that the owners were willing to sell the property. He had explained how, after nearly a year of lobbying on his part, the state and the county were prepared to pony up more than half the purchase price, whatever it might be. Tapping his finger on the podium, he had triumphantly announced that the state was even willing to loan the city the rest of the money A at the very appealing interest rate of exactly zero percent for the first five years of the loan.

The commissioners jockeyed to applaud Goldstein's efforts. Miller Dawkins recited an impromptu ode to green space. Victor De Yurre, who was facing a tough re-election battle, asked to lead the sale negotiations. He knew a purchase would win him votes and quash the threat of more lawsuits from the property owners, a trio of developers known for their litigiousness. "People were congratulating me and slapping me on the back," Goldstein recalls. "It certainly felt like a victory."

Precisely what the young lawyer had won, though, was unclear. The commissioners appeared to have approved a motion to buy the property and turn it into a park. But what they actually passed was in fact so fuzzy that eight months later the city attorney's office has not deciphered the motion well enough to frame it in precise legal language. The owners' attorneys, in the meantime, have broken off negotiations, the attorneys for the city having made it known that they refuse to close a deal without a written promise in advance that they won't be sued. Even the city commissioners have been muzzled, lest their comments come back to haunt them in court.

Unless the stalemate ends soon, warns Michael Goldstein, lawsuits will indeed follow, delaying yet again the sale of Commodore Bay. "I think we are so close and that is why it is so frustrating," Goldstein groans. "It is such a wonderful opportunity. All the money is there and we've come so far, and it is a way to end all the litigation."

He sighs at the thought that his work might come to nothing. "Commodore Bay is like a beautiful animal," he ventures. "Maybe like a majestic lion. It is beautiful to look at, but on the other hand it chews up a lot of people."

Bubba Red stands at the shore of Biscayne Bay, squinting into the noon sun, his dark eyes shaded by a weathered Yankees cap. A self-confessed crack addict, he lives on the Commodore Bay property full-time. Raising a Marlboro as if it were a pointer, he sweeps the glowing cigarette across the panorama to convey the majesty of the view, then turns 180 degrees to face a stand of hardwood trees and exotic grasses, and nineteen fellow homeless people. He sucks one last drag, flicks the Marlboro into the bay, and commences a guided tour of his home.

"This is the most tranquil place in the Grove," says Red, traversing the dirt path that starts where the bay meets a four-foot-tall chainlink fence separating the property from Peacock Park. To his left, Red points out, is the Barnacle, the homestead of Commodore Ralph Munroe. The early settler erected Coconut Grove's first house, referred to by some as the Plymouth Rock of South Florida, with wood recovered from a shipwreck. A well-patrolled fence keeps Red and his ilk away from the state historic site.

Farther up the path the vegetation grows denser, thick with live oak and gumbo-limbo. The entire property takes up a little more than six acres, and after a few minutes Red's short walk ends at Main Highway and a padlocked gate. Out beyond the fence is the concrete amusement park of the Grove AFuddrucker's and CocoWalk, thousands of weekend visitors. A world away from Commodore Bay's trees and shade. "It's a place where we can escape the noise and the horns of the rest of the village," Red says, patting his jacket in search of a cigarette. "It's a place where you can get away and relax your mind."

The son of a prominent Grove activist, Bubba Red has always lived in the village. He has seen it change from an artists' colony to a hippie hangout, and finally to an overgrown mall. The Grove still had a faint hippie feel to it back in 1983, when this wild property was purchased by three developers with a grand vision.

Along with partners Howard Scharlin and Gerald Katcher, Ken Treister, the architect of Mayfair, bought the parcel for three million dollars. Though the trio knew the land was zoned for single-family homes, they felt it had more potential. They wanted to build a 195-unit condo complex on top of a massive shopping center filled with stores and art galleries. There would be subsidized art studios and classes to evoke the village's past, and a 650-space parking garage to ease the Grove's growing car crunch. The property had no name, but the blueprints submitted to the city on June 15, 1984, bore the imprint Commodore Bay.

City officials lapped it up like an architectural parfait. The way they saw it, the Brickell Avenue boom -- gleaming, skyscraping condos rising along the waterfront as quickly as anyone with a few dollars could find a construction crane -- was arriving in the Grove.

Village residents, on the other hand, are known for their anti-development zeal, and many failed to share their elected officials' taste for suites. The project's opponents noticed with relief that while the Community Planning and Revitalization Department had approved the plans, staffers had attached myriad conditions. A big hangup was traffic: Compact and congested, Coconut Grove could not support a massive condo project without additional access from the site onto McFarlane Road. The developers solved the problem by adding to their blueprints a new road across the parking lot of adjacent St. Stephen's Episcopal Church.

Bad call. The owners didn't count on the wrath of St. Stephen's congregation. Many members balked at the idea of a road running past the playground near their children's grammar school. "I began working on this the day my child started junior kindergarten and now he's in the tenth grade," grumbles Linda Dann, a St. Stephen's parent who became active in the fight to nix the condo complex.

The partners also failed to factor in the environmental backlash that resulted when they called for a gutting of the property's hardwood hammock. Activists, including the esteemed Marjory Stoneman Douglas, joined the church parents to sway the commission. Ultimately they succeeded. On November 12, 1984, the commissioners voted 3-2 to kill the project.

Still, they gave the developers an extraordinary second chance: Instead of going by the law and waiting a year before presenting another development plan, the partners were invited to revisit the commission as soon as they were ready. Six months was all it took to craft another, slightly smaller plan. Instead of 195 condos, there would be only 150. Instead of 80,000 square feet of commercial restaurants and shops, there would be only 49,000. The parking garage would hold only 533 spaces.

The planning department conditionally approved the plan once again, but it was rejected by the Zoning Board and the Planning Advisory Board. Without waiting for a public hearing before the city commission, the developers withdrew the plans and the project died a second death.

It was dawning on city officials, meanwhile, that the property might make a nice park. That way the Grove's anti-development soldiers would be appeased. Better still, the city would be in a better position to proceed with its plan to develop Bayside Marketplace downtown.

A shopping mall, food court, and eventual mothership to a Hard Rock Cafe, Bayside was born as the city's attempt to revitalize Bayfront Park. In 1985 construction was ready to begin. But to build docks and pavilions on the waterfront, the city needed special permits from the state. During a visit to then-governor Bob Graham, Commissioner J.L. Plummer proposed a trade: If the city were allowed to proceed with Bayside, he'd create a trust fund to collect a portion of the developer's rent paid to the city each year, with the money earmarked for the purchase of waterfront property along the Miami River or Biscayne Bay. The first choice was obvious. "The priority item will be agreed to by the city, once again, and that is the property adjacent to the Barnacle," Plummer told Graham, as recorded in a transcript of the meeting. The governor gave his blessing, and the trust began stockpiling cash.

Yet the owners weren't quite ready to sell. Forty-three days after abandoning their second plan, they came back to the city with an unusual request. They wanted a zoning change, from single-family homes to something more dense, far more dense. The change, if approved, would permit not only a development of, say, 195 condo units and a 650-space parking garage, but something four times that dense.

In itself, a zoning-change request isn't uncommon. But astonished officials didn't fail to discern that the owners stood to benefit handsomely from a change that would boost the value of their land. They also noticed that the partners had not attached any blueprints to their request. "[Our previous] recommendations [in favor of the first two projects] are irrelevant because [the third application] is something completely different," a planning department staffer told city commissioners. "It's like comparing, for example, a contract in which you specify all the terms . . . and a blank check. We're recommending against a blank check."

The commissioners agreed.
Thrice rejected, the owners turned to the courts. In a 1986 lawsuit, they alleged that city officials were trying to "take" the land by keeping the value as low as possible, making it easier for the city to buy it for a park. It was a blatant double standard, they complained: The city was pro-development on Brickell Avenue, at CocoWalk, and even on Biscayne Bay, where politically connected restaurateur Monty Trainer was afforded certain exemptions from the rules, such as permission for his customers to park on adjacent city property.

The city, however, prevailed. An appeal failed, as did a second lawsuit, and a third. Five more legal maneuvers -- all primarily regarding the requested zoning change -- failed as well.

Nine years after purchasing the land, the owners pitched one last development idea: a parking lot. The Department of Off-Street Parking rejected the plan, leaving the owners frustrated and willing to sell.

Michael Goldstein is a fitness nut. That fact, more than his lifetime spent in Coconut Grove, has made him an environmentalist. "I run a lot, usually on the same path through the Grove," says the 28-year-old Ransom Everglades High School alumnus. "Over the years, I noticed a significant change in the community. A lot of development, a lot of concrete. Every time a tree would come down, literally it was like they took a rib from my chest. I don't know why, but it gave me such anger and sadness, and a level of frustration and hopelessness."

Earning a law degree from the University of Miami, he found hope. He joined (and soon became president of) the zealous zoning activists collectively known as the Coconut Grove Civic Club. He fought against the development of Virginia Key. Now he is concentrating on Commodore Bay. "This is the kind of stuff that is important to me," Goldstein says. "I am an inveterate, unabashed, unrepentant tree hugger. This is what's important to me. This is how I spend my time."

Goldstein knew the Commodore Bay owners from his frequent battles against the development. As their proposals were shot down one after the other, he saw in their frustration an opportunity to save the property. They weren't doing anything with the land, so why not sell it to someone who would preserve the trees and the open space? Why not sell it to the city so it could become a park?

On a November day in 1994, the idealistic lawyer met Kenneth Treister for lunch at Greenstreet Cafe, across Main Highway from the disputed property. Goldstein asked Treister if he would be amenable to the idea of a park on his property. Treister said he was. Goldstein asked Treister if he would be willing to sell the property to the public to achieve that end. Treister said he was. Granted a third yes after asking whether the owners would reimburse him for the costs of searching out a buyer (although not pay him anything more for his services), Goldstein set out to make it happen.

"Michael Goldstein cares about the community and he is active in the community," says Treister's partner Howard Scharlin. "He's a bright young man. He is not our attorney, but from our point of view, his personal desires for this property are not inconsistent with what would be a good deal for us."

Flying off to Tallahassee on the owners' nickel, Goldstein lobbied bureaucrats in several state agencies. The land, he argued, was too valuable and time was too short to let its purchase be anything other than a priority. On June 27, 1995, Goldstein secured a commitment from the state for half the cost of the purchase, plus a loan to the city on very favorable repayment terms.

Goldstein knew of a Metro-Dade fund dedicated to the purchase of park land, so he also made a pitch to the county officials who oversee the fund. "As concrete replaces canopy," he wrote in a persuasive letter to the Environmentally Endangered Lands Program, "the name itself, 'Coconut Grove,' may very well become a bittersweet and ironic reminder of what this village once was." Sure enough, county officials were in for ten percent of the property's cost.

All this Goldstein presented to city commissioners last July. He even mentioned the approximately $500,000 that sits in the Bayside Agreement trust fund, the money J.L. Plummer had promised for Commodore Bay.

And as the commissioners thanked Goldstein for his efforts and slapped him on the back, the first fateful letters were already being typed.

"The day after Michael Goldstein's presentation, Kenneth Treister sent a letter to the city saying the deal was off," says Joseph Fleming, one of three outside counsel representing the city in the Commodore Bay matter. "I told him, 'Michael, I think you are being played for this one, just like Linda Dann was.'" (Fleming was referring to an earlier effort by Dann, one of the parents at St. Stephen's church, to gather state money to purchase the property. "I worked my butt off for several years to get them to sell, then at the last minute they changed their minds," Dann says today, her words laced with bitterness. "Then they just jerked the rug out from under us. They filed a whole bunch of lawsuits, including one in which they accused me of collaborating with Monty Trainer. I don't even know Monty Trainer.")

The owners' attorney, renowned land-use lawyer Toby Prince Brigham, dashed off a letter as well. "The willingness of the city to resolve the matter is a never-ending illusion," Brigham wrote in a July 25 missive to another of the city's trio of attorneys, Gary Held. "It seems to me your suggestions for further negotiation are a snare and a delusion. We can see no reason to continue further negotiations with the city. We deem them concluded."

Held snapped back in a letter dated August 4. "You claim illusion, snare, and delusion on the part of the city, but those same words could describe how my clients feel about yours following the years of litigation and your letter to me."

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.

Litigation, though, is a bleak scenario. Not only would it further delay a sale, it would bring the property to the brink of a land use that -- right now, at least -- everyone wants to avoid. "The default scenario here is development," Goldstein warns. "Ultimately, eventually, [the owners] are not going to be able to [afford to pay the taxes] on the property any more. They can develop it themselves or they will sell it to someone else who is willing to deal with the zoning problems and with the Coconut Grove zoning activists.

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