Miami Beach Zoning Appeals Board Overturns 40 Years of Density Interpretations

Susan Askew
Susan Askew

Miami Beach Zoning Appeals Board Overturns 40 Years of Density Interpretations:

Impact is citywide, but ruling based on appeal by developers of 500 Alton Road

The Miami Beach Board of Adjustment today overturned 40 years of interpretations of how the City calculates density. In a 5-2 ruling, the Board said elevator shafts, stairwells, mechanical chutes and chases should not count as “floor area ratio” or FAR, the measure the City uses to approve construction projects based on allowable density in each zoning district.
The appeal was brought by the developers of the proposed 500 Alton Road project (above) who say the City’s interpretation of how FAR is calculated resulted in them losing two floors in what was originally designed as a building with 40 floors. The approved 519-foot slender tower was a compromise between the developer, community, and City in exchange for a smaller footprint that would have minimal impact on neighboring buildings along with a three-acre public park to be deeded to the City. 
Attorneys and developer Russell Galbut emphasized they were not seeking additional FAR but rather an interpretation of the Code about what should be included in FAR calculations. Based on the development agreement with the City, the height and overall footprint of the building are set so they argued an interpretation to not include the elevator shafts, stairwells, and mechanical areas in the calculation would have no impact on the view from the outside but would allow for 40 floors instead of 38 within the 519-foot tower.
The City’s attorney and Planning Director reminded the Board the decision was not just about the 500 Alton Road project but would have citywide implications. Today’s decision means buildings that may have been at their maximum FAR now have more room within which to work when proposing changes and new buildings would gain some additional density, though attorneys for the developers argued the space taken up by elevator shafts, stairwells, and mechanical spaces is generally relatively small. In the case of 500 Alton Road, a much larger building, it means a total of 4% of the building or 21,000 sq ft.
FAR is calculated by dividing the size of a building by the size of the property. The higher the number, the denser the building. In drafting plans, developers and architects have to be mindful of what areas are included in the size of the building number that is used in the FAR calculation.
Developers’ attorney Ron Lowy said when the Code is ambiguous, as he argued in this case without a specific definition of the word “floor”, then it directs words be given their “normal dictionary usage.” Both the Oxford Dictionary and the Dictionary of Architecture and Construction define “floor” as a surface “on which one may walk,” Lowy said. The Planning Department, he added, “interprets all horizontal areas of the level of a building” in its calculation of Floor Area Ratio, “regardless if there is a surface.” 
The “voids” in the elevator and mechanical areas are counted towards FAR while the voids in mezzanines are not, creating an inconsistency, Lowy said.
He noted the Florida Supreme Court has ruled that when a law is ambiguous, it “should be given the broadest meaning” and “interpreted in favor of the property owner.”
The City’s original code specifically included the elevator shafts, stairwells, and mechanical chutes in the calculation but they were later removed in 1989, an indication of the City Commission’s intent not to include them, Lowy argued. 
In denying the request by the 500 Alton Road developers for the interpretation in their favor, Planning Director Tom Mooney relied on a 1994 memo from then Planning Director Dean Grandin, Jr. that those areas were meant to be included even though they were no longer specifically listed in the Code.
Lowy told the Board, “You have a responsibility not to perpetuate past errors but to correctly interpret the code.” 
Jeffrey Bass, outside counsel hired by the City, said, “Floor area is a defined phrase… it is not two independent words.”
“This isn’t a literature class. This is a Code drafted by the City Commission [to govern] how Land Development Regulations are administered.” The appeal, he said, is based on “a false premise that we’re without a definition. We have one and it’s simple and it’s clear and it’s unambiguous.”
Bass cited a “series of statutory interpretations, legislative history, without exception for the better part of 40 years” and noted that every building in Miami Beach “was built in accordance with the definition of floor area” as interpreted by Mooney for 500 Alton. Exclusions, he said, are expressly listed such as first floor garbage areas. Items that are not excluded are included, he argued.
Bass acknowledged the decision was a hard one for the Board. “The developers and their team are well regarded and they enjoy a fine reputation within this community.” That said, he argued, “The definition is easy.”
“This has vitally important and far-reaching implications that affect this city overall,” Bass said. “If the City Commission would like to rewrite [the Code], there’s enough firepower in this room to impress upon the Commission [the need] to amend the Code. There’s a legislative process to do that. This is not that process.”
“Floor area is defined,” he said. "It’s a phrase… you cannot inject and manufacture an ambiguity by taking improvidently one term and turning it into two.”
Regarding the exclusions, Mooney said the City Commission on several occasions has amended the Code to add exclusions to FAR but never excluded the elevator shafts, stairwells, or mechanical areas arguing, therefore, they are included in the calculation. 
“This type of proposal really is a legislative act,” Mooney said. “This is not an interpretation issue. This is actually a Code change… because of the far-ranging implications.” 
In remarks to the Board, Galbut acknowledged he has built numerous projects on Miami Beach under the FAR calculation but he’s never seen an impact as great as this one. Because of the building’s footprint, he said, seven elevators were necessary. The Planning Department, he said, counted the elevator floors 48 times (for each floor they would stop on including the garage). In order to come into compliance with the allowable FAR under Mooney’s interpretation, developers “were forced” to remove two floors, he said.
When asked why the calculation had not been challenged before, Galbut said it cost $100,000 to come before the Board for an appeal and the “ordinary person” could not afford to do that. Given the economics of delaying a project and the small square footage difference it would make in most projects, “It doesn’t pay [for them] to come before this board… We had no choice. The economics are overwhelming” in his project, he said.
Without the additional floors, Galbut said the project was “economically not viable.” 
In cross examination, Bass asked Galbut, “Is the basis of your appeal to make this project economically viable?”
Galbut answered his objective is “to make this project a reality… At the end of the day, it’s what you can sell that matters.” When the height and width of the building is set, he said, it “shouldn’t matter what [a developer] does in that space.”
In his conclusion, Lowy said the appeal was about getting a “common sense” interpretation. Garages, he said, are excepted from the calculation but stairwells are not. “Does that make any common sense?” he asked. First floor garbage rooms are not counted nor are garbage chutes, he said. “Yet we count an elevator or mechanical chute…it makes no sense,” he concluded.
Wrapping it up was former Mayor Neisen Kasdin, Managing Partner of Akerman's Miami office, representing the developers. Kasdin said there were “four areas of smoke” that were irrelevant to the Board’s consideration. He emphasized the appeal was not about the 500 Alton Road project. “It’s about a definition... it does not matter how many times this Code has been interpreted… if [it was] interpreted improperly, then it is your duty to interpret it properly.”
He argued it was an “exaggeration” to say including these areas would have a significant impact asking “How much space does an elevator shaft take up?” The fact that others have not challenged the interpretation before was “also irrelevant” because the “last thing [property owners] want to do is get involved in a two- or three-year legal challenge,” he said.
As to the definition, Kasdin said, the Code uses the term “floor area” and not “horizontal plane” as the City has interpreted it.
Ultimately, the Board sided with the developers noting that if the City Commission wants to specifically include elevator shafts, stairwells, and mechanical chutes in the calculation they can amend the Code to do so.
Despite a fear of overdevelopment, Board member Richard Segal said, “We’re thirty years behind… Why aren’t we moving along with downtown? Why aren’t we moving along with Brickell? Why aren’t we moving along with other places? If we’re really concerned about FAR, let the Commission come and make a decision at that time.”
Barry Klein argued the definition was clear in that the measurement “goes to the outside of the building…  The definition could be hardened maybe,” he said, but he added he didn’t believe the areas were excluded. “This particular developer, you can’t tell me that they came in here blind, not knowing the rules,” he said.
Noting the original statute specifically included the elevator shafts and other elements in question but the 1989 Code change removed them, Richard Baron said he was compelled to support the appeal citing what he called “40 or more years of misinterpretation of the statute.”
The developers received the required five votes to overturn the decision and, thus, the long history of interpretations. Voting in favor were Segal, Baron, Barton Goldberg, Elsa Urquiza, and Andres Asion. Klein and James Orlowsky voted no.
Galbut said after the ruling, “I think the citizens of Miami Beach win today. I think it’s fabulous.”
“I think the fact that you’re required to have a 5/7ths vote is really overwhelming to accomplish, but I think the law is so clear and the cases that were presented were so clear that there was no choice but to approve the appellants’ request today,” he said.
The City can appeal the ruling and if it does, Galbut said, his project and the public park would be delayed. If the City chooses not to appeal, he said “We will start construction before the end of the year” on a tower that would include the original plan for 40 floors. 
“We’re excited,” he said. 

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