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Such suspicions aside, predictions of multimillion-dollar disasters are based on a crucial assumption: that Portofino will pull out of the deal if the referendum passes. Though Miami Beach City Attorney Murray Dubbin says that passage of the amendment would surely be grounds to do so ("The amendment could be construed as a breach of the contract and give [Portofino] an opportunity to back out," he declares), others say a pullout by the developer is unlikely. At least two commissioners -- Neisen Kasdin and Martin Shapiro -- say passage of the amendment will probably result in new negotiations between Portofino and the city. "It's likely that if this passes, Portofino will come back to the table," Kasdin says.
John Dellagloria, who was chief deputy city attorney for the City of Miami Beach from 1990 to 1996 and who now works as city attorney for North Miami, cautions that renegotiation is far from a sure thing. "If the people pushing the amendment are hoping that by unraveling this transaction they will bring Portofino to its knees, they are most likely mistaken," he warns.
Agrees Edward Resnick, a retired attorney who chairs Miami Beach Citizens Against Higher Taxes and who also headed the city's negotiating committee for the Portofino Agreement: "David Dermer and some commissioners think they're playing Russian roulette with Portofino, and that [Portofino] is going to blink and renegotiate," he scoffs. "They're playing Russian roulette with the finances and solvency of the city."
Spokesmen for Portofino did not return phone calls requesting comment for this story, but according to an attorney for the company, the developer is ready and willing to pull the trigger if the amendment passes. "In the most likely event, I would imagine that Portofino would go forward with their vested rights, unless the commission took action to ameliorate the effects," says Matt Gorson of the law firm Greenberg Traurig.
But pulling out of the agreement or renegotiating aren't Portofino's only options if voters approve the amendment.
"It is going to end up in court if it passes," predicts Murray Dubbin, who has already issued a written opinion that the amendment is unconstitutional. "A judge will end up ruling on its constitutionality in some form. As to the many possible ways it can get there, I don't feel I can speculate."
According to Stanley Price, a land-use attorney for the Miami law firm of Eckert, Seamans, Cherin & Mellott, the amendment violates existing legal precedent in Florida. "Referendum and initiative are no longer appropriate vehicles to review land use," says Price, citing a 1993 Brevard County case in which the Third District Court of Appeals ruled that rezonings that have a limited impact on property owners are "quasi-judicial" in nature. "If they are quasi-judicial, then a vote of the electorate does not afford the property owner due process," Price explains.
Constitutional or not, the question will come before the voters of Miami Beach on June 3, and their response to this issue will provide an excellent barometer for the political climate leading up to the November elections. Commissioners Sy Eisenberg and Nancy Liebman are up for re-election; the mayor's office will also be vacant, as Gelber has served the full six years the city charter allows.
David Pearlson says it is "unknown at this time" if he will run for mayor. As the commission's most vocal opponent of the amendment, Pearlson's potential candidacy could be aided by its failure. In any case, he would very likely choose not to run if Metro-Dade Commissioner Bruce Kaplan decides to take a shot at the mayor's seat. "If I don't run, [Kaplan] will run," Pearlson says.
Martin Shapiro says he "hasn't made any decision" about running for mayor. He was the lone vote against the Portofino Agreement, and though he has not taken a public stance on the charter amendment -- "I don't tell people how to vote," he says -- his reputation as an anti-development voice might allow him to ride the passage of the amendment into the center seat on the dais.
Neisen Kasdin has already declared his candidacy for mayor. Though he has not taken a stand on the amendment either, he has grown increasingly critical of the city's estimates of its financial responsibilities should the Portofino deal fall through. "The likely consequence of Portofino telling us it wants out of the deal is not a $50 million Armageddon," he insists.
A candidate might also emerge from within Save Miami Beach. Seymour Gelber thinks so. "I think [the referendum] will pass, then lead into November elections," says the mayor. "From those in the group doing this for political purposes, you'll see four or five of the advocates for passage running for office."
Might one of these be Save Miami Beach chair David Dermer, who mounted an unsuccessful campaign for the commission in 1991? "At this time all I'm concerned about is June 3," Dermer says. "I would reserve comment on that. Today I have no personal ambitions beyond June 3.