Miami says it has right to reject projects

Posted on Sunday, June 26, 2005

Miami says it has right to reject projects

Do Miami officials have the power to stop development projects that are incompatible with surrounding neighborhoods? Yes, the city attorney has said, pleasing neighborhood activists.

BY ANDRES VIGLUCCI
aviglucci@herald.com

For years, whenever neighborhood activists complained to Miami officials about overscale development, the answer would invariably be: The zoning code allows it, so our hands are tied.

But now, as it undergoes a high-rise condo boom, the city appears to be changing its tune.

Not long ago, the City Commission did something it rarely does: Under pressure from well-organized and well-to-do residents of the Morningside historic district, it rejected a pair of 10-story Biscayne Boulevard condo towers. The rejection came despite the fact the zoning code appeared to allow them and both city planners and the zoning board had approved the project.

Even more unusual, when the developer sued the city and the Morningside Civic Association, the city attorney's response seemed an answer to many residents' plaints and prayers.

The response, filed in court last week, cites the city's own zoning ordinance and a spate of state court cases to argue that developers are not absolutely entitled to build the often-generous maximum density allowed by the much-maligned code.

'SHOCK WAVES'

It says the code empowers the city to reject a building that officials reasonably deem incompatible with its surroundings -- because it's too big, too tall, too bulky or simply clashes architecturally.

''This has the potential to send shock waves through this whole issue,'' said Elvis Cruz, a Morningside association officer and longtime activist. ``It says the city has the power to stop development. This is a wonderful tool for neighborhoods. And it's not coming from us. It's coming from the city attorney.''

Citing the pending litigation, the city attorney's office declined to comment.

Attorneys for the developer, Morningside Development LLC, said the City Commission acted arbitrarily in rejecting the plans.

They said a developer is in fact entitled to build the maximum density zoning permits and predicted the city will be forced by the courts to grant permission to build or compensate the owners for effectively reducing the value of their property.

''The emotions of a crowded theater took over,'' the developer's attorney, Douglas Halsey, said, referring to a March commission meeting in which the project was voted down 4-0. "Without any factual basis whatsoever, they threw it out.''

But City Commissioner Johnny Winton, whose district includes Morningside, said it's about time the city attorney's office showed some gumption.

Winton said he has long thought the city has the legal power to reject or scale down projects that clash with the character of surrounding neighborhoods. But former City Attorney Alex Vilarello advised them not to, saying the city would be vulnerable to a ''takings'' suit. As a result, Winton said, the commission has been loath to risk stopping projects that members believed were intrusive.

That changed with the appointment late last year of new City Attorney Jorge Fernández, Winton said.

''I was thrilled to death to read this argument,'' Winton said. ``It's logical to me. It was never completely logical to me before.''

Winton said the new stance, if upheld in court, could help the city alleviate one of the most troubling effects produced by the combination of an antiquated zoning code and the building boom -- high-rise buildings backing up to single-family homes along such main corridors as Biscayne Boulevard, Coral Way and 27th Avenue.

''It gives me the ability to say no in my district, and I don't think I will lose,'' Winton said.

In combination with Miami 21, the overhaul of the zoning code now under way, the city attorney's firm posture will give commissioners more clout to control intrusive development, Commission Chairman Joe Sánchez said.

''We're looking for more design review, more ordinances and ways to protect residents,'' Sánchez said, adding that approving the Morningside condos would have ''opened the floodgates for out-of-scale development'' along that stretch of the boulevard.

Neighborhood activists see greater potential, arguing the city's tougher legal posture could also help lead to downsizing or redesign of proposed towers that would loom over such historic buildings as the Freedom Tower or the Coconut Grove Playhouse.

'FALSE IMPRESSION'

Leaders of the new Miami Neighborhoods United, a coalition of more than 20 neighborhood associations, have distributed copies of the city attorney's brief to members, and they intend to use it.

''The city administration in the past has created a false impression that a landlord is completely entitled to the maximum available -- that all you have to do is suit up, show up, hire the right law firm and permission is inevitable,'' said the group's president, Horacio Aguirre, a commercial real estate broker. ``That's not correct.''

The linchpin of the case is Section 1305 of the zoning code, which gives the city power to require that new developments be compatible with the look, feel and scale of their surroundings. It provides a checklist of criteria.

At least one prominent land-use lawyer says the city is likely to win in court.

''If the city has done it correctly, they will probably be successful,'' said Stanley Price, who typically represents developers and landowners. ``If they have specific criteria, the law in Florida is that the courts will not interfere in government interpretation of its own zoning code.''

BUILDINGS AT ISSUE

At issue are two buildings proposed on adjacent blocks at 5301 Biscayne Boulevard and 5501 Biscayne Boulevard. Morningside residents say the buildings would cast shadows over the single-family homes behind, leaving residents facing four-story garage walls just five feet from their rear property lines.

Last year, the commission adopted an ordinance capping residential building heights on Biscayne Boulevard at 95 feet and requiring that rear walls be limited to 20 feet, with the taller towers set back.

The plans for the two Morningside towers, filed before the 20-foot limit went into effect, comply with the 95-foot cap but would have 40-foot rear garage walls. The planning department approved the plans, but Morningside appealed.

The zoning board denied the appeal, and the Morningside association then persuaded the commission to overturn the approvals.

The commission also voted to ask planners to revisit the 95-foot height limits on the boulevard's east side with an eye to further reductions, perhaps as low as 35 to 45 feet.

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