What Public Baywalk?
Flamingo Developers Scoff at Notion That Baywalk Is Public

 “We don’t believe you can imply a waiver of a constitutional right.”

The city says that the pathway behind the white fence is public. But the building’s developers see it differently. Photo by Erik Bojnansky

By Randy Abraham

Lawyers for the city of Miami Beach and the developers of a South Beach condo complex failed to agree whether or not a public baywalk is required behind the building.

Until the matter is resolved, the public will not have access to a bayfront walkway behind the Flamingo at 1500 Bay Road.

City officials told the Miami Beach Design Review Board on Tuesday that when the Flamingo was approved in 1997, it was with the following condition: A baywalk extension, from the south side of the property north into the future park area, shall be required.

The bayfront was included in the plans, but gates were installed at the north and south ends of the walk to keep non-Flamingo residents out. City planners said the gates must come down, allowing the public to stroll along the walkway during daytime hours; the developers say the gates are necessary to provide security for residents.

Attorney Cliff Schulman, representing the Flamingo developers, MCZ/Centrum, said his client met the requirements of the order because the baywalk was built, and argued that the condition did not specify that the city demanded that a “public” baywalk be created. He said plans for the project submitted to the city clearly indicated a gated community was being built, and that city officials did not object.

Schulman said the city is now trying to impose a condition nine years after the fact.

“This does not constitute a clarification, but a modification of what was done in 1997,” said Schulman. “The right to exclude people from your property is a fundamental constitutional right,” he said, adding that he would object to a continuance. “We don’t believe you can imply a waiver of a constitutional right.”

Schulman said the developers would not have agreed to demands for a public baywalk because their design placed resident amenities on the ground floor and public access to them would have compromised security.

Bernard Zyscovich, who prepared the designs approved by the Design Review Board in 1997, said he would never have designed the project the way he did had the city required a public baywalk. “If it was required for the public to access this edge, we would never have proceeded with the development of open spaces” where they currently are located because of security and liability issues, said Zyscovich. If the city indeed had demanded a public bayfront, Zyscovich said, he would have redesigned the project to put amenities on an upper floor and possibly a parking structure on the ground floor. “The baywalk is really designed for the residents. It was never intended that we would allow the public to walk through.”

However, Thomas R. Mooney of the city’s Planning Department said tapes of the 1997 hearing indicate the city did require a public baywalk.

Schulman argued that previous relevant court decisions have upheld property owners’ right to maintain security, and required governments to acquire properties they wish to be open to the public.

The issue brought several residents to the hearing. Former DRB member Arthur Marcus said of the 1997 decision, “When we said ‘baywalk,’ it always meant, ‘public baywalk.’”

Ruth Remington, a resident of the nearby Murano complex, said the units in her building that face a public bayfront walk have become popular with buyers. “We feel it gives our building incredible value,” she said.

Yacht Club resident Marilyn Freundlich said residents have not been concerned over security with a baywalk running out back. “Everyone enjoys it,” she said.

Former city Commissioner Nancy Liebman told board members that “water access is a public right, not a gift.” Afterward she countered Schulman’s defense of property rights with “the public’s right to bayfront access.” Although not involved in the board’s 1997 decision, Liebman said, “Everyone assumed that was going to be a public baywalk.”

The DRB deferred a decision on the fence until its next meeting in February.

In other business, DRB members approved revised plans for the Residences at Biscayne Beach, a proposed four-story townhome development at 845 82nd St. and 8225 Hawthorne Ave. Last month, board members asked architect Les Beilinson to address residents’ objections about the proposed building’s size. After meeting with neighbors, he removed a few stairwell bulkheads and redesigned architectural elements to differentiate the six dwelling units while providing a less-institutional and dominating presence. The changes, he said, “will make the building look a floor shorter.” Biscayne Beach Single Family Homeowners Association President Leonor Hernandez said, “We’re pretty happy with the overall look.” Last month, she expressed objections to the project and noted she had formed the association to combat what she felt was overdevelopment in the area of waterfront homes.

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