|Williams Island vs. Aventura: A Heavyweight Bout to Watch|
|Written by Jay Beskin -- BT Contributor|
Developer Gary Cohen’s plans for a high-rise have some people accusing the city of not following its own rules
All new developments in South Florida are accessorized with a guard gate at their entranceway. The guard gate serves two purposes. The first is to provide the guarded with security, or at least a sense of safety. The second is to instill within the confines of the gated community homogeneity in practice and exclusivity in spirit.
The exclusives residing in these developments prefer to hobnob with their own kind, without fear they may somehow be forced to interact with dreaded “others.” No canvassing politicians or Girl Scouts selling cookies will knock on the exclusives’ doors.
Remarkably, some of the most exclusive exclusives in Aventura reside on Williams Island. Why is this remarkable? Because the guard gate at the entranceway to Williams Island, on Island Boulevard, is a placebo. Any schlub can drive onto the island by using the right lane of Island Boulevard, giving a pleasant wave of his hand to the royal gate attendant appropriately costumed as a servant to the governor-general of the Bahamas. How could this have happened?
The story starts many years ago in New York, where Norman Cohen made a bunch of money manufacturing garments. Cohen thereupon bought a lot of property in north Miami-Dade, pre-Aventura, primarily along NE 185th and (pre-Williams Island Boulevard) 183rd streets. Cohen developed Commodore Plaza and Admiral’s Port.
After Cohen’s death, his son Gary sold off much of the undeveloped land holdings, but retained two spoil islands dredged from the muck of Dumfoundling Bay, immediately to the north and east of Williams Island. Gary named these islands Island Estates. The only access to Island Estates is through Williams Island.
Before Williams Island was developed, and anticipating that future exclusives might seek to control access to Island Estates, Norman Cohen obtained a perpetual easement -- commencing approximately at the Williams Island guardhouse and ending at Island Estates -- which permits anyone unimpeded entry onto Williams Island.
The Williams Island Homeowners Association sued Cohen to void the easement, but lost. Consequently, there is no love lost between the Williams Island HOA and Gary Cohen.
So last month, when Cohen announced he intended to construct a 16- to 20-story, 160-unit high-rise on the northern island, a building that would obstruct the views of numerous Williams Island residents, the Williams Island HOA sprang into action. But this time, the Williams Island HOA did not sue Cohen. Rather, it sued the City of Aventura for failing to follow its own zoning rules.
One of the primary reasons the people of Aventura in 1995 voted to incorporate was to wrest control of Aventura’s zoning process from the developer-friendly county commission. And indeed, in 1999 the Aventura City Commission (of which I was a member) adopted a new comprehensive land-use plan that down-zoned many undeveloped parcels. However, even if a tract was down-zoned, that was no guarantee that it couldn’t be developed for denser use than that stipulated by the new classification.
This is because the tract owner may have acquired vested rights to build the property to a higher density (or a taller height) before the commission changed the zoning. By law, the commission could not take away those vested rights without adequately compensating the owner.
As the commission changed the zoning map, it also established a mechanism for determining whether a property had vested rights that might override the zoning. On the theory that a vested rights determination was a legal -- as opposed to political -- process, the commission delegated the vested determination to the city manager.
In order for a property owner to demonstrate vested rights, he had to do certain things within 120 days of the effective date of the zoning change. These included filing an application accompanied by a fee and submitting a sworn statement asserting the basis of the vested rights.
The owner also had to file documentary evidence supporting the claim. In the documentation, the property owner had to demonstrate that a governmental act of development approval was obtained prior to the zoning change; that the property owner had relied, in good faith and to his detriment (by making substantial expenditures), upon the prior approval; and that it would be highly inequitable to deny the property owner the right to complete the development.
Depending on whether the claim was based upon a prior governmental approval or based on a state or county rights determination or court judgment, the city manager would have either 60 days or 90 days to issue his vested-rights decision. The city manager is also authorized to enter into a vested-rights determination agreement describing the development criteria with the landowner.
The city commission zoned Island Estates as “RS-2 Residential Single Family District,” which limited density to 25 units per acre and permitted only single-family, detached dwellings on a minimum lot area of 4000 square feet. At the time of the zoning, except for two bridges connecting the islands with Williams Island, no development had commenced on the islands.
On July 20, 1999, Cohen’s attorney submitted a letter to the city manager requesting a vested-rights determination for, among other properties, the north island of Island Estates. The request referred to a court order permitting development to RU-4 under the county code, meaning apartments at a density of 50 units per acre.
It is at this point where things get interesting. The current lawsuit against Aventura alleges the city did not respond to the July 20 letter until December 7, 1999, when the city sent Cohen’s attorney a proposed vested-rights determination and vested-rights determination agreement. This is well beyond the 60- or 90-day period required by the ordinance, and the lawsuit contends that, as a result, the city manager lost any authority to determine vested rights.
Compounding the matter, Cohen didn’t execute and return the determination agreement until 2006. In the interim, the city attorney issued a report that stated only three properties had complied with the vested rights ordinance. The Island Estates tracts were not among them.
And attorney Arthur Shanker, a board member of the Williams Island HOA, notes a particularly strange fact. Until 2006, when Cohen returned the vested-rights determination agreement, the agreement had a blank line for the amount of expenditures that Cohen allegedly incurred in reliance on prior approvals. How could the city have made a vested-rights determination if it didn’t possess all the information necessary to do so?
So we are now in round two of the Williams Island-Cohen fight. Only it’s the city taking all the punches.
Volume 13, Issue 12, February 2016
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