Builder Beware

Welcome to the new Miami Beach, where the citizens are angry, commissioners are cowed, and developers are Public Enemy #1

John Shubin runs his law practice out of a squat four-story building near the downtown Miami Burdines, and he lives in Coral Gables, but right now he is the hottest attorney in Miami Beach. Along with his partner Jeffrey Bass, Shubin has, during the past year, become the legal catalyst for the anti-development movement currently dominating Beach politics.

Not only have he and Bass racked up impressive victories representing neighbors opposed to development, but Shubin himself was among the architects of the city charter amendment -- the so-called Save Miami Beach referendum, passed this past June -- that requires certain waterfront developments be put to a public vote. In the wake of the amendment, city commissioners passed additional ordinances that have made "controlled development" the law of the land in Miami Beach.

Still, Shubin says, playing the role of anti-development zealot in Miami Beach can be a tough gig: "I often feel like I am the streaker at Queen Victoria's funeral. I make these arguments that seem to be very well-founded in the law, and it can be very frustrating when people whose opinions you respect look at you like you're insane." The 36-year-old attorney, who somehow manages to appear intense even with his feet on his desk and his thick hands clasped behind his head, attributes the communication gap to the fact that politicians and developers aren't used to hearing coherent legal arguments coming from those who oppose development.

"Neighbors are always coming before commissioners with this emotional, sentimental stuff," Shubin says -- stuff that commissioners have a tendency to tune out. "Developers, on the other hand, are always litigious, or threatening to be litigious. The trick, as a lawyer, is to provide commissioners with a legal hanger on which to hang their decision."

While Shubin and Bass have been passing out hangers, lawyers for developers have been trying to twist them into nooses. Indeed, the recent wave of anti-development rules has hardly caught developers flat-footed. In the months before commissioners voted for these restrictions, high-rise builders raced to submit building applications that would be considered under the nice, permissive, old rules. A lot of them made it, too; some 37 projects will be considered without regard to a few or all of the new ordinances.

For Shubin and the neighborhood groups that have hired him, these proposals are an effort to manipulate the approval process and subvert the will of the electorate. For developers, these pending projects represent the last of the great cash cows on the Beach. And they have indicated that they will stop at nothing, including suing the city, to get them built.

If it once seemed that developers could do whatever they wanted in Miami Beach, it's because they could. Back in the Seventies and Eighties, the city's southern end was a crumbling slum populated with retirees and Cuban refugees from the 1980 Mariel boatlift. City officials were desperate for any infusion of economic life. To lure developers, the commission revised the entire zoning code in 1971 to allow extremely high-density development. Commissioners also dangled the prospect of "design bonuses," which allowed developers even greater density if their plans met certain criteria for good design. If we let them build big, the reasoning went, they will come.

Come they did, and they found a city administration and commission eager to accommodate their grand designs. With the exception of the successful effort to preserve the Art Deco District, the credo of the era was, Growth is good.

By the early Nineties, the refurbished Deco District was clearly one of the keys to the city's rebirth as an international tourist mecca. But plenty of prime, nonhistoric real estate remained, especially in the area below Fifth Street known as South Pointe. And if a developer wanted to build something -- no matter how big -- he usually found allies at city hall.

The mechanics of the approval process back then ran pretty much as they do today: A developer meets with staff from the city's Department of Planning, Design and Historic Preservation to discuss what he wants to build. The developer then submits an application, which consists of a survey, site plan, floor plans, sketch, zoning data, photos of existing buildings on the site, traffic-impact study, demolition plans, et cetera, and the necessary processing fees. The application must further prove that the proposed project meets "concurrency" requirements -- that it will not overly burden existing roads, sewers, and other city services.

Once the application is complete, it goes before the city's Design Review Board (DRB) within 35 days. A seven-person panel of volunteer professionals with expertise in planning, architecture, and/or land-use law, the commission-appointed board was established in 1984 to review all proposed developments on the basis of their aesthetics, functionality, and relationship with the surrounding community. Miami Beach is the only governmental entity in Dade County that has such a board.

When an applicant comes before the DRB, board members decide to approve or reject the project based on what the developer, his attorneys, and architects have to say that day, along with the city planning staff's recommendation. (The board can also vote to postpone a project to a later DRB meeting, giving the developer more time to work out any kinks.) A DRB-approved project might also need to get state or county permits, or it might need to go before the city's Zoning Board of Adjustment if it requires a zoning variance. DRB decisions can be appealed to the commission and eventually challenged in circuit court.

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