“You’ve got them, whether you want them or not.” – Councilwoman Linda Zilber on high-rises

By Tony Guzman
Staff Writer 

The Bay Harbor Islands Town Council moved forward on an amendment that would “grandfather” three previously approved high-rise projects in the town’s comprehensive plan, during its April 24 meeting.

The ordinance was approved five to one with Councilman Isaac Salver dissenting.  Councilwoman Jill Serfaty was absent.

The proposed amendment to the Comprehensive Plan’s “Future Land Use” element will now be transmitted to the Department of Community Affairs and other State agencies for review. If approved by the State, the proposed changes must be passed by the town council on second reading. In the interim, the affected high-rise projects remain in limbo.

Last year, Bay Harbor Islands halted the issuance of building permits for projects over seven stories tall after planners discovered that an ordinance encouraging high-rise development on East Island did not comply with the town’s low density comprehensive plan.  On March 25, the council grandfathered two high-rise projects with building permits as well as a number of already existing buildings over the density limit.  The town also increased the town’s base units per acre code from 34 to 40 as well as stipulating a maximum of 90 units per acre.  The so-called “40/90” amendment allowed the two previously approved high-rise projects—the 15-story Indigo Bay and 14-story BleuVista—to proceed with construction. 

But three previously approved 15-story high-rise projects exceeded the allowable units per acre under the 40/90 rule: the Bay Harbor 101, the Palms and the Residences of Bay Harbor.  Developers of the three projects threatened to sue, and last week’s vote to grandfather them in occurred under the threat of costly litigation.

“Now that they voted to vest the project, any plans to litigate are on hold,” said Inés Marrero, an attorney for The Residences at Bay Harbor.

The vote also served as an anticlimactic ending to a recent wave of anti high-rise fervor that led to the formation of the Bay Harbor Islands Citizens Coalition and swept new councilman-elect Peter Lynch to a landslide victory.

The amendment was moved by Councilman George Reycraft who said, “If we do not do something about these developers, there’s a good chance we will be sued and a good chance we’ll lose a considerable amount of money.”

Councilman Salver pointed to a legal ruling in a Key Biscayne case that seemed to indicate that “the burden is placed on the developer to see that the project to be developed is in compliance with the town’s Comprehensive Plan.”

Town Attorney Stanley Price replied that in the Key Biscayne case, construction had been stopped prior to official approval of the project, making the two scenarios “clearly distinguishable.”

Councilman-elect Lynch urged postponing the decision on the stalled high-rises, pending further review. Councilman Reycraft called such a delay “a tremendous risk” and “irresponsible.”

“I disagree,” Salver said. “We ought to look for a middle ground. A lawsuit will eventually go away. A huge building will not. We should consider what our true feelings are, and what the future is for Bay Harbor.”

Mayor Robert Yaffe counseled passage of the amendment, while allowing that “a dislike of tall buildings is a common feeling at this point,” and that “I would rather they were not built.” Councilwoman Linda Zilber cited “my fiduciary obligation to the town of Bay Harbor Islands” as the reason for her support, concluding that “a few mistakes may have to be lived with instead of being a bankrupt town.”

Citizens Coalition member Chuck Wallace stressed that “the majority of the citizens in this community do not want high-rises.”

“You’ve got them, whether you want them or not,” Councilwoman Zilber told him.

“If you sign a contract that is illegal, it’s null and avoid,” opined resident Howard Schneider.

“If you’re a lawyer, you can share a legal opinion with us,” Mayor Yaffe told him.

A number of the affected developers’ attorneys were on hand to press their clients’ claims and make clear they meant business if the council didn’t move at once to get the stalled high-rise projects back on track. Chad Willard, Bay Harbor 101’s attorney, said he would consider failure to include language vesting his client’s project in the proposed amendment a “trigger” for filing a Burt J. Harris suit. “We’re losing contracts,” he said. “We’ve been waiting patiently. We were promised February, March, now April. We can no longer wait.”

Marrero, The Residences at Bay Harbor’s attorney, promised to “pursue aggressively” Burt J. Harris action, if necessary. Her associate, Gus Maxwell, explained that the Burt J. Harris law entitles a property owner, “if inordinately burdened,” to sue a municipality for “full loss of market value, plus attorney fees and costs,” noting that “the state of Florida is extraordinarily pro private property rights.”

 “This room is full of big shot lawyers. Where were the expensive lawyers when you were buying the property?” asked Citizens Coalition member Taryn Copeland. “The rights that you obtained were based on error. Ignorance is no excuse.”

Representing The Palms, attorney Kent Harrison Robbins stressed the importance of new development to make Bay Harbor “a vibrant city.” He warned of other consequences besides litigation if the town reneged on its authorization for the high-rises: “That developers will be afraid to come concerns me.”