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I Am Not a Meddler

Poor Dean Grandin. He was simply trying to do his job. As the City of Miami Beach's planning and zoning director, he has one of those unglamorous, thankless posts deep inside the gray factory of municipal government. Important? By all means. He is responsible for enforcing the city's zoning ordinance. He decides which buildings will be allowed to be constructed and which will never make it off the drawing board. But for Grandin there are no ribbons to cut, no fancy charity balls to attend.

Then again, Grandin is known as the kind of guy who just does his job and doesn't look for trouble. An "unclassified" city employee who serves at the will of the city manager, he's regarded by peers as a competent urban planner who, when it comes to zoning decisions, calls them like he sees them. And it was no different last August when plans came across his desk for two high-rise condominium projects in the South Pointe neighborhood below Fifth Street. Grandin tapped away at his calculator and concluded that the designs violated the city's zoning laws. The buildings were too big for the parcels of land on which they were to be built, and the plans would have to be redrawn.

The next thing Grandin knew, his decision was under siege by one very angry developer and was being carefully scrutinized by his superiors, including City Manager Roger Carlton, even though the Miami Beach City Code grants the planning and zoning director semi-autonomous powers. (According to the code, Grandin's interpretations of the zoning ordinance are subject to review by administrative boards and the civil courts, not by the city manager or the city commission.) But that was only only the beginning. In the next few months, this seemingly straightforward zoning matter escalated into a heated debate among top-level city officials concerning the balance of power at city hall. Propelled by a series of often-testy memoranda and punctuated by the thud of colliding egos, the dispute eventually centered on the question of whether Carlton had overstepped his bounds and inappropriately meddled in a zoning matter outside his purview.

The original matter concerned a proposed high-end residential development designed by the well-known Miami architecture firm Arquitectonica and developed by real estate investor Micky Biss. The $20 million project, Biss's first as a developer, consists of two condominiums, one eighteen-story tower on Washington Avenue and one 21-story tower on Ocean Drive, both between First and Second streets.

The project is one of several multimillion-dollar developments planned for the southern tip of Miami Beach, which has lagged far behing the rest of the city on the development curve and for years has been an area of critical concern among city officials. In addition to the various commercial and residential projects currently under way, the city has hired the prominent architectural firm Duany Plater-Zyberk to create design guidelines for South Pointe.

The plans for the Biss high-rises came before Grandin for review, and he ruled that the buildings exceeded the city's prescribed "floor-area" ratios. Biss, though, disagreed and argued that Grandin had miscalculated the total floor area of the structures.

Within a few weeks, Biss took his complaint directly to Carlton, who says he occasionally listens to the concerns of citizens, including developers, "to ensure that the process of government is carried out in accordance with the law and done in the most efficient way possible." About the same time, Grandin's immediate supervisor, Harry Mavrogenes, approached Chief Deputy City Attorney John Dellagloria to inquire whether Grandin's opinion could be "overruled," according to Dellagloria. The attorney said no. Interpretation of the zoning code is the sole province of the planning and zoning director. If Biss had a problem with Grandin's ruling, Dellagloria said, he could appeal to the Miami Beach Zoning Board of Adjustment. No other city official had the power to change it.

Mavrogenes and Carlton, both jointly and independently, met with Grandin to talk about the matter. Carlton says he was simply inquiring about the zoning decision and didn't seek to change it. "The discussion related to why [Grandin] was taking the position that he was," Carlton explains. "I needed to understand it because Micky Biss had come to me to complain about the decision." Carlton says he then suggested to Biss that the developer might want to get outside zoning experts to comment on the matter. (Grandin says he wasn't interested in a legal opinion but was willing to consider any case law relating to a similar zoning situation if Biss could find it. If a legal issue arose, Grandin says, he was prepared to refer the matter to the city attorney's office.) So Biss hired two prominent Miami zoning attorneys to advocate his position: Carter McDowell and Lester Goldstein, both from the influential law firm Fine Jacobson. (Goldstein once acted as Carlton's attorney on a private matter several years ago, but Carlton says he didn't specifically suggest that Biss call Goldstein.) On October 13, the attorneys sent to Carlton their conclusions explaining why they thought Grandin had erred in his decision.

 

If all of this seemed slightly unusual, it would only get more so. Five days later, in a letter to McDowell and Goldstein that ignited the war of the memos, Dellagloria accused the attorneys of possibly violating one of the rules that governs the Florida Bar. According to the rule, lawyers from opposing sides of a legal dispute may communicate only with each other, not directly with the opposition's client without the presence of their attorneys. (In this case, the City of Miami Beach, in the person of Carlton, was the client.) "While I am more than impressed with your thorough and exhaustive review of our zoning code as it pertains to the knotty legal issue which is the subject of your letter," Dellagloria huffed in the letter, "you have, amazingly enough, overlooked some simpler provisions regarding the proper procedure for addressing your concerns."

After getting wind of the wrangling, Mayor Seymour Gelber asked City Attorney Laurence Feingold to explain Dellagloria's feisty missive. On November 1, Feingold sent his four-page reply to Gelber. He did not, however, send a copy to Carlton.

As bureaucratic memoranda go, this one was pretty explosive. Couched in the circumlocuting verbiage of lawyer-speak was the charge that Carlton may have improperly tried to interfere in Grandin's decision. In nearly two years as the city's top administrator, Carlton had earned a reputation for being brusque with subordinates and somewhat of a control freak. But few had questioned his ethics.

According to Feingold's memo, Carlton allegedly committed two administrative missteps. First, he and Mavrogenes "met with Mr. Grandin in an attempt to have him change his position." And second, the city manager had apparently instructed Biss's outside attorneys to send their report "only to the city manager."

"However noble the city manager's motives may have been," Feingold wrote, "it is clear that the effects of his action was to interfere with the process." As for Dellagloria's letter, Feingold concluded this way: "Mayor, my chief deputy certainly may, on occasion, be ornery, but I think in this case he was justified." Feingold interviewed Dellagloria and Grandin when composing the memo, and allowed Grandin to read and approve it before sending it to the mayor. He did not contact Carlton, he says, because he felt the accounts from Dellagloria and Grandin were adequate. (It is common knowledge around city hall that Feingold and Carlton are not especially fond of each other. Both are hired by the city commission and answer only to commissioners.)

Not one to abort a lively exchange of correspondence, Gelber wrote back. "Your defense of your office is commendable," he remarked. "Anyone who so strongly lauds his and his staff's actions certainly has to be at least half-wrong.

"My concern is the judgmental position both you and Mr. Dellagloria take. He assumes the role 'ethicist' for the world and reminds lawyers of their transgressions, which is in essence a threat." Gelber went on to say that if, indeed, the city manager can't influence the planning and zoning director, "then it is important that the city manager and any member of his staff be promptly advised as to the manner in which they address a situation." Two weeks later Gelber asked Feingold to clarify for him, the city commissioners, and the administration exactly which department chiefs, such as Grandin, have authority to make certain decisions independent of the city manager.

The conflict remained a matter of very quiet discussion among a few city officials until the end of December, when Carlton finally saw a copy of Feingold's November 1 memorandum to Gelber. While he doesn't recall exactly how he got it, Carlton does remember how he expressed his displeasure. "I was appalled," he says. "It was 11:30 at night when I saw it. I was sitting at home going through a box of work, and I went ballistic. I jumped into my pool, which was about 74 degrees; the outside temperature was about 55. Had it been an hour and a half earlier I would've called Feingold."

On December 30, Feingold, Carlton, Dellagloria, and Grandin met in Carlton's office to review the November 1 memo. At the meeting, its participants say, Grandin apparently changed his story and claimed the city manager did not interfere in the process. "I had met with Roger before the December 30 meeting and, after discussing the situation, realized he was not trying to interfere or change my opinion," says Grandin, who has been planning and zoning director for three and a half years. Even though he approved Feingold's memo to Gelber, the planning and zoning director now says he didn't give it a careful read. "Generally it was accurate but there may have been some misunderstandings," he says. "We were caught up in the intrigue, the paranoia, and poor communication. I think Roger was just trying to offer another point of view rather than try to persuade me. I don't want to make this a bigger deal than it really is." Grandin says everybody now has a better understanding of his quasi-autonomous power to make zoning decisions.

 

Following the meeting, Feingold and Carlton prepared a joint memo to Gelber. In it they offered what they called a "clarification" of the November 1 document and explained Grandin's new position regarding Carlton. (Feingold says he now regrets not interviewing Carlton originally: "It was inconsiderate not to make him aware of it.")

Two weeks ago Gelber conferred with Grandin and summarized their meeting in yet another memo. "Mr. Grandin expressed satisfaction that any prior misunderstanding had been rectified," the mayor wrote. "He stated that at one point it appeared that the city administration was interfering with his decision-making, but that subsequently he found otherwise."

Carlton is still bitter and fumes over the suggestion he acted improperly. He denies he ever tried to coerce Grandin into changing the zoning decision. As for the potentially unethical letter from the outside attorneys, Carlton blames that on attorney Carter McDowell and claims he never instructed the lawyers to send the legal opinion to him exclusively. (According to John Dellagloria, however, both McDowell and developer Micky Biss have said Carlton instructed them to do so. Biss referred questions about the letter to McDowell, who didn't return several messages left at his office.)

"The way I feel about this situation is that no good deed goes unpunished," Carlton grouses. "I had a citizen developer come to see me complaining about a department director. A review of the situation was done, there was no change that the department director was willing to make, nor was I inclined to ask him to make a change. And the matter was over. But because of a paper blizzard, I end up having a charge made against me that was later retracted.

"I have no relation with Micky Biss," Carlton continues. "Why would I, on behalf of a particular developer who I just met, influence a planning director? There are people who think I like every building because it adds to the tax roll. That's not the case. People have come to me with buildings I think are awful and I've told them so." Carlton says this is the first time in his 25 years as a professional manager that he has been accused of such improprieties.

The mayor remains philosophical. "I sit here as a kind of arbiter for a lot of these things," muses Gelber, a former judge. "In terms of the process, I think it was almost good that it happened so we could clarify the roles of the manager and the subordinates. This is a government of interaction and a lot of friction takes place when everyone is active. But thus far we haven't had any explosion that has interfered with the way our government functions."

Meanwhile, Grandin has refused to change his mind, and Biss says he hasn't decided whether to appeal the planning and zoning director's decision.


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