Builder Beware

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

But for the most part, the only thing that can stop a project that has passed DRB muster is market forces -- for example, if a proposed condominium tower doesn't sell enough units in advance. Nearby residents who object to a project may also speak before the board, though until very recently their protests generally fell on deaf ears, as did their appeals to the city commission.

In the past decade developers have pushed through behemoths such as the Portofino Tower, the Blue and Green Diamonds, La Gorce Palace, the Floridian, Il Villaggio, 1500 Ocean Drive, and Sunset Harbour, which now thrust skyward, mocking the rage of the surrounding populace.

In late 1996 citizen frustration at these out-of-scale skyscrapers boiled over. A grassroots group called Save Miami Beach gathered enough signatures to force a referendum requiring public approval of any waterfront building whose construction would increase the property's zoned density. The effect for developers: If you want to build a tall building on waterfront property that's already zoned for tall buildings, you can go right ahead. If you want to build a tall building on property zoned for short ones, you need to ask the people's permission. Good luck.

The amendment passed resoundingly this past summer. One immediate effect was the demise of the Portofino Agreement, a development deal between the city and bad-boy German developer Thomas Kramer. Part of the complicated agreement included an increase in zoning for a small slice of South Pointe called the Alaska Parcel; when it became clear that up-zoning the waterfront parcel would require a citywide vote, Portofino backed out of the deal.

Commissioners -- especially those up for re-election this past November -- tried to catch as much of this anti-development swell as possible. The old commission passed a new height-limit ordinance this past October, resulting in different heights for different parts of the city, some as low as 11 stories; the tallest any new building can be is roughly 44 stories. In January the new commission (including three rookie commissioners) voted to eliminate design bonuses.

But the new commission finds itself in a curious spot. Most members hope to score political points by appearing tough on developers. At the same time, too zealous an effort to block these projects could leave the city liable to developer lawsuits. Mayor Neisen Kasdin summed up this duality in his State of the City address on February 11. He vowed there would be "no more Blue or Green Diamonds," but was careful to add that pending projects would be considered "on a case-by-case basis."

Two of the most heated cases -- the 20 Venetian Way project, and the Ocean Parcel on South Pointe -- pit crack development lawyers Lucia Dougherty and Clifford Schulman (of the Miami firm Greenberg Traurig) against the tag team of Shubin and Bass. Developers and their foes are carefully tracking the fate of these projects, which have become de facto test cases of the new Beach rules.

In the most intriguing twist of lawyering to emerge from these battles, Shubin has argued for a broader application of the charter amendment he helped craft. The gist of his position: The design bonuses that were granted to developers should be viewed as increases in zoning. Thus any proposed waterfront project that includes design bonuses should be put to a referendum. According to the planning department, eleven pending projects eligible for design bonuses are on waterfront properties. Will that mean thirteen referenda for Miami Beach voters?

Hell no, says Dougherty. Like other development attorneys, she has been looking for an opportunity to challenge the Beach charter amendment in court, and will certainly do so if Shubin's argument gains acceptance at city hall. Whether or not this happens, Dougherty has already threatened to sue the city for cleaving too closely to Shubin's legal arguments.

The Ocean Parcel -- a 12.5-acre tract on the southern tip of South Beach -- is next door to two of the biggest, most despised high-rises in the city: South Pointe Tower, built in 1986, and Portofino Tower, built in 1995. In city-planning terms, the Ocean Parcel is really the undeveloped part of an eighteen-acre lot that includes the existing condo towers. Last year developers submitted plans to build three more titans on the vacant eastern portion of the lot.

The best-known of these designs was the brainchild of Helmut Jahn, the renowned Chicago-based architect whose high-rises adorn downtown skylines from Manhattan to Singapore. Jahn's plan included two 54-story residential towers and a 40-story combination hotel and condominium.

The man behind the plan was Bruce Eichner, a prominent New York developer who agreed in June 1997 to buy the Ocean Parcel from Thomas Kramer for a reported $54 million. The purchase has not yet been finalized. Hedging their bets against the sale falling through, both Eichner's Continuum L.L.C. and Kramer's Portofino Group submitted separate applications to develop the property. And both developers applied for Design Review Board approval -- before the city commission enacted its height-limit ordinance.

The Continuum proposal came before the DRB on January 6. By then the proposed development was front-page news. A November 3 story in the Miami Herald, complete with artist's renderings of the glass-and-steel buildings, ballyhooed Jahn's international reputation. (The story also noted that some of South Pointe's more strident anti-development activists were determined to stop the project.)

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