Builder Beware

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

She strides over to her window on the 23rd floor of the 1221 Brickell building and points to a tall, work-in-progress office building in the foreground of the panorama. "Right here we have the 33-story rental building Jorge Perez is putting up on South Bayshore Lane," she notes. "A mirror image is planned for the site right next to it. And over there, two 57-story towers are planned by the Brazilian company that did Il Villaggio in Miami Beach." Dougherty ticks off a total of seven projects under way between the Brickell Avenue bridge and SE Fifteenth Street.

She folds her arms and gazes at the far side of the Intracoastal, slowly chewing a piece of Mint-a-Burst gum. "I've basically told all my clients that they will have a long, arduous task doing anything on Miami Beach right now," says Dougherty, who served as city attorney for the Beach from 1983 to 1984.

Developer Victor Labruzzo knows all about arduous. He is trying to build a 26-story condominium at 20 Venetian Way on Belle Isle, the easternmost islet on the Venetian Causeway, and his plans for that oval-shape swath have sparked one of the roughest battles over any Beach development project.

Labruzzo submitted his original application before the institution of citywide height limits in October 1997. (This also put him well ahead of January's elimination of design bonuses.) A neighborhood group of Belle Isle residents, through Shubin and Bass, has opposed the project from the outset. When the DRB approved the building in mid-November, the neighbors appealed the decision to the city commission, which heard the appeal on February 4.

As with the theories he and Bass had applied to the Ocean Parcel, Shubin's arguments questioned some of the previously sacrosanct assumptions about the entire approval process. Shubin posited that Labruzzo's application was deficient because it did not address issues of concurrency -- meaning the impact the project would have on city services and infrastructure, such as traffic flow.

In making this argument, Shubin noted that many projects had, in the past, received DRB approval without having completed the necessary traffic studies. Generally such studies had been put off until a project was ready to pull a building permit to begin construction.

Aimee Hamilton, president of the Belle Isle citizens' group that retained Shubin and Bass, finds that practice fundamentally unfair, as the DRB is, barring appeal, the public's last chance to speak about a project. "That just completely deprives the public of any opportunity to comment on issues of concurrency," she says.

Lucia Dougherty, on Labruzzo's behalf, argues that traffic studies, though technically required as part of an application to the DRB, have always been deferred until after DRB approval because it was unrealistic to do such detailed studies so early in the process. A traffic study would have to take into account any projects that were scheduled to begin construction at or around the same time as the applicant's project. It's only reasonable, Dougherty told the commission, to wait until you're about to begin building, then look around and see what other buildings are under way or ready to start.

Responds Hamilton: "She said that you're penalizing these people unfairly by making them take [all pending] projects into account. I say that if you don't take those projects into account, you're unfairly penalizing the citizens."

The concurrency question was not the only legal grenade Shubin lobbed at that commission meeting. He also argued that the developer's use of design bonuses to increase a project's size (known as floor-area ratio) should be seen as a zoning increase. And because the property is on the water, the charter amendment requiring a referendum should be invoked.

"Preposterous," snaps Dougherty in a later interview. "I never thought anyone would buy such an argument. That charter amendment was aimed at one piece of property, and that's the Alaska site."

The commission didn't explicitly use the charter amendment as the reason for granting the residents' appeal. Commissioners ruled that the DRB should not have approved the project because the developer had not yet provided proof that the project wouldn't degrade city services below acceptable levels. The commission unanimously voted to send the project back to the DRB to be reconsidered.

That commissioners believed Shubin's concurrency argument was bad enough for Dougherty; that they were willing to even consider his idea about using the referendum vexes her further. "For the first time," she says incredulously, "the city sort of indicated that they would view the bonuses -- the bonuses that were always part of the zoning ordinance, and which thousands of projects have always had -- as something that has to do with the referendum."

Shubin thinks the theory makes perfect sense, and addresses the persistent inequities that caused the commission to strike down the bonuses in January. "The idea of bonuses -- which the last time I looked in the dictionary implied something that was in addition to what you are permitted to have -- has all of a sudden become vested rights," he sneers.

This argument also raises the question of who determines whether the amendment applies. "You can't have a referendum if nobody has the balls to invoke the charter amendment," Shubin points out. "We may have to start suing to start putting these projects on the ballot."

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