Legislation Moves Forward to Reverse Miami Beach Zoning Board Decision Overturning 48 Years of Precedent

In a move to quickly close a window of opportunity for Miami Beach developers to submit plans with additional floor area in their projects as the result of a recent Board of Adjustment ruling, draft legislation is moving forward that would have the effect of reversing the decision. City Commissioners referred the ordinance to the Planning Board as required and, following its favorable recommendation this week, there is now what is known as “zoning in progress.” Under zoning in progress, the terms of the ordinance apply while awaiting Commission approval meaning the City goes back to measuring floor area the same as it has for nearly five decades though a broader discussion of floor area or FAR is coming.

The legislative action was precipitated by the Board of Adjustment (BOA) ruling last month in favor of the developers of the 500-600 Alton Road project who challenged the City’s calculation of floor area saying elevator shafts, stairwells, mechanical chases and chutes should not count. The BOA agreed, giving developers Russell Galbut and partner David Martin an extra 21,000 sq ft which they planned to use for two additional floors. The decision does not increase the height, width or footprint of the 519-ft tower planned for the 500 Alton parcel, rather it allows for two more floors within the approved building envelope. The City appealed the decision saying it would unleash “unknown population demands on the City’s infrastructure.” The developers say the impact is “minimal.” Meanwhile the Alton Road project is on hold.

Mayor Dan Gelber along with co-sponsors Commissioners Michael Góngora and Mark Samuelian proposed the ordinance to codify 48 years of interpretation that stairwells, elevator shafts, and mechanical chutes and chases are included in the measurement of floor area. At this month’s Commission meeting when the item was referred to the Planning Board for its recommendation, Gelber said, “The intention as written is to reestablish the prior interpretation” to include the areas in the definition of floor area. “That could change as it goes through the process.”

City Planning Director Tom Mooney told the Planning Board there is an opportunity for a broader discussion of floor area. “Moving forward, we’ve always believed that a better option to address questions of FAR would be to have increases in FAR looked at strategically. It shouldn’t just be through some decision by the Board of Adjustment that is vast and unstudied.” He said the Mayor intends to refer a discussion of “expanding FAR in a manner consistent with the areas that would be created by removing elevator shafts and stairwells but in a more strategic way” through mechanisms like “providing for bonuses based upon tangible benchmarks” that could include things such as meeting resiliency criteria to address flooding from sea level rise.

Neisen Kasdin, Managing Partner of Akerman's Miami office, represents the developers of Ocean Terrace. He is also a former Miami Beach Mayor and member of the Planning Board. Kasdin urged the Board to take its time on the legislation, do “appropriate analysis” before recommending it back to the Commission.

“The way that this is discussed by proponents of this fix-it bill, it is the equivalent of the local version of Trump’s invasion of the hordes from south of the border,” Kasdin said. “There is no crisis. There is no invasion. There is no threat to the City.” 

According to a City staff report, he said, “There are a handful, 7 or 8 current projects which are in the pipeline. All total, all total – if they add the extra FAR that would be allowed under this interpretation by the Board of Adjustment – it’s 86,000 sq ft” in a City with an estimated 23 million sq ft of built environment.

“There is zero urgency to it when you’re talking about 86,000 sq ft in the built environment that has tens of millions of sq ft… It’s fake. There is no emergency,” he said.

Given the potential that a judge could rule in favor of the Board of Adjustment, Planning Board Chair Brian Elias said, “In light of that possibility, then this is an emergency for the City… Otherwise then the Code is going to be determined by a Circuit judge.”

Citing “a rogue decision of our own board,” special counsel for the City Jeffrey Bass, Shubin & Bass, told the Planning Board, “The matter on referral before you today represents the City Commission’s legislative wish to control its own destiny and decide this issue for itself as it and only it has the authority.”

Following a robust debate that previewed the future discussion on FAR, proponents made their case for additional floor area by saying more efficiency will allow for more affordable housing, adaptive reuse and preservation of older buildings that were built with more floor area than currently allowed after two downzonings, and additional opportunities for more resilient building.

Elias said, “The issue of what FAR should be could be debated until the cows come home and I don’t disagree with that, but I think it is the right of the Commission to confirm or codify the way they’ve been interpreting this law for 49 years. Now you may think it’s wrong, but that’s the way it’s been done and I think projects that were approved all understood that.”

“With the utmost respect to your arguments, I just don’t think it’s fair to say to the City you just have to live with what they believe is an errant decision and then letting a [court] decide what the City of Miami Beach’s code should be.”

“I do encourage strongly when we pass this ordinance on… that there is a further discussion about this whole issue and whether FAR should be re-determined,” Elias said.

Several Board members expressed an interest in a further conversation. Nick Gelpi said, “I agree to a certain extent we should embrace the conversation that’s happening now. I’ve long been frustrated by the idea that we can’t award FAR bonuses and I would love to discuss that, if we could incentivize that.” Calling the BOA decision, “a little unpredictable,” he said “I am in favor of going back to the status quo and welcome a broad discussion about the future and how we can do better.”

They all agreed, however, to give a favorable recommendation to the legislation, starting zoning in progress, in order to give the City more time to review floor area on a broader level.

While 500-600 Alton is tied up with legal maneuvers, plans for two projects were submitted for approval during the window between the BOA ruling and zoning in progress, both utilizing the calculations under the BOA ruling. The developers of Ocean Terrace submitted new plans to the Historic Preservation Board that include a hotel addition agreed to by the City in exchange for the developers providing a new public streetscape in front of the property. The developers of 72 Park submitted revised plans using the additional FAR. The submissions could set up a legal challenge on the additional FAR for those projects. 

In the meantime, in addition to having zoning in progress in place, City Attorney Raul Aguila noted in an email, "The City's appeal of the BOA's decision stays any action taken by the BOA with regard to this matter, including its reversal of [the Planning Director's] interpretation" of how FAR is measured. With those two actions, the City closed the window on additional FAR until and unless a future discussion yields changes. The first reading of the proposed legislation to reverse the Board of Adjustment's ruling will be at the Commission's January 15 meeting.