5775 Collins: DRB wants another look

Susan Askew
Susan Askew

5775 Collins: DRB wants another look:

public beach access, view corridors are sticking points

Attorneys for the developer of 5775 Collins Avenue and Royal Embassy Condominium Association squared off at this month’s Design Review Board meeting over public beach access and view corridors. For its part, the City had a court reporter in the room, an unusual move unless further legal action is anticipated. Emotions are running high on this project, which also pits neighboring buildings against one another. At the end of more than three hours of legal arguments, public comment, and Board discussion, the DRB members weren’t satisfied with what they heard from the developer and voted to continue the project to a future meeting, likely December.
The developer, Miami Beach Associates, has proposed a new 17-story, 89 unit building that would run parallel to Collins Avenue to replace the 12-story, 107 unit Marlborough House which sits perpendicular to the street. Residents of the Royal Embassy and City Planning Staff have sought reorientation of the proposed building to allow for view corridors on a site with a building that has provided generous side views for more than 50 years. In addition, the City and residents are seeking a public beach access through the property. The owners have emphasized throughout the process that their proposal is allowed under current City Code.
In anticipation of that argument, Planning Staff member James Murphy was emphatic in reading his initial summary of the item to Board members. “The Design Review Board has in the past recommended moving or shifting structures and massings on sites. The Design Review Board has required view corridors to be incorporated through buildings in the forms of wide holes and vista apertures. The Design Review Board has divided buildings in half in order to promote the maximum amount of public visual interest and view corridors through sites. The Board has endorsed retaining and incorporating existing buildings on-site or tree resources. The DRB has removed floors, lowered heights from buildings. In all these instances the applications complied with all of the underlying zoning regulation a property was entitled via the zoning code but that did not satisfy design review criteria as they pertain to the specific site in each application, something the zoning code does not endeavor.”
He noted “the DRB is tasked foremost to promote excellence in urban design” based on the City’s design review criteria “with regard to the aesthetics, appearance, safety and function of any new or existing structures, and physical attributes of the project in relation to the site, adjacent structures and surrounding community.”
Murphy reiterated Planning Staff’s recommendation that the architect rotate the building orientation 90 degrees, increase side setbacks to a minimum of 50 feet along each side, and provide direct pedestrian access to the beach. Staff suggested continuing the application to December “to allow the applicant and architects generous time to reorient the building.” The developer says it doesn’t plan to do that. 
The crux of the legal arguments as previewed by both attorneys is whether or not the design review criteria and City’s Comprehensive Plan are as important as the zoning code.
Within the Comprehensive Plan is a recommendation that new developments provide public access to the beach and bay. Deputy City Attorney Eve Boutsis referred the Board to a memo from the developer’s attorney that they would pursue a legal claim based on a Supreme Court decision on the taking of private property should the Board require public beach access.
Boutsis said, “We have done conditions in the past that have required Baywalks, Beachwalks and these have gone through. Ordinarily those are with the consent of the property owner … Those decisions have never been challenged especially when worked out with the applicant. Here, the applicant has put us on notice that they would be challenging any requirement to have the beach access.” She noted that if such a challenge was successful – and she clarified that she was not giving that opinion but as information for the Board – the City would be required to pay fair market value for the property and attorney's fees.”
Michael Larkin, attorney for the developer, informed the Board that Miami Beach Associates has entered into settlement agreements involving financial compensation with the associations at Villa di Mare to the North and L’Excellence to the South.
With regard to the building orientation, he reiterated that the proposal complied with City Code. “When a local government seeks to promote light and air between buildings and view corridors, they do so through the use of setbacks. … We are complying with all of those setbacks. In fact we are exceeding them. … The choice to provide greater setbacks for the project provides for legitimate view corridors.” The focus, he said, was not on providing view corridors for the Royal Embassy which he noted is “just under 300 feet away, across a six lane roadway.” Instead, he said, “It is of the utmost importance to consider the impacts to our contiguous and adjacent neighbors which are those located to our North, the Villa di Mare, and to our South, L’Excellence. The reality is that this project seeks to improve the view corridors for our contiguous and adjacent neighbors in every direction.”
Larkin said State law is on their side. “Florida case law maintains there is no inherent right to a view across a private property. Florida courts have repeatedly held that absent a statute or easement to the contrary a property owner has no right to a view across a neighbor’s property.”
Continuing to lay out his legal case, Larkin said with regard to having to provide public beach access, “Not only would that be damaging to the value of our property to the tune of millions of dollars, it would be illegal in light of U.S. Supreme Court precedent and impractical based upon the location of the existing crosswalks and traffic signals.”
The City’s Comp Plan he said “does not allow the city to take private property without just compensation in violation of the Constitution”.
Finally, he pointed out that beach access is provided at the neighboring Mei and Bath Club buildings, “a five minute walk”, and that given the lack of crosswalks in front of 5775, a public beach access would “promote jaywalking across six lanes of busy Collins Avenue.”
Architect Bernardo Fort-Brescia of Arquitectonica told the Board, “With respect to the positioning of the building we followed what is permitted by your code. Your code is very explicit, very clear in how you can create the envelope within which the building can be designed. And we took that envelope and made certain choices that we felt were logical for the site.” By orienting the building North-South, he said, “We were able to create a landscape zone along the avenue that will create a break of the concrete lineup … a moment of greenery at a moment of expansion of Collins Avenue in a moment that it needs it.”
“Also, the orientation of the building allowed us to create a greater distance to the beach,” he said, “and therefore reduced the late afternoon impact of shadows on the beach by retreating the building – also significantly more than what the code permits. The building could have gone right to the edge … instead, its retreat creates also a moment of respite along the boardwalk, along the beach, a break of that lineup of condominiums that we know exist currently in Miami Beach.”
With regard to the neighboring buildings, he said, “[The design] opens their views to the water. There’s a good reason that we have support from those neighbors. We are respectful of those who are immediately next to us – not hundreds of feet away, somewhere else across streets – those who are touching our property lines.”
When he had finished his comments on the design, Fort-Brescia took time to give his personal observations about the developer, Jose Isaac Peres, in a process that is notable for its significant social media activity. “I’d like to just conclude with one more statement. Our office has worked with Mr. Peres in Brazil ... He has the highest reputation in that country for building the most quality buildings in the nation. He has received so many awards for the quality of his developments and we’re very proud to be his architect there and here. He is a very decent person. He is an outstanding citizen. He’s one of the original investors that believed in Miami Beach when he built Il Villaggio [at 1455 Ocean Drive] when nobody was believing in Miami Beach and he has a record of improving the environment. He is a real believer in sustainability.” Fort-Brescia said he was “rather disturbed” when he read “hashtags [and] nicknames” for the project – referred to as Godzilla by some neighbors – and the developer, called a “billionaire bully”.  He told the Board, “I thought it was really uncalled for that a project that should be discussed on pure architectural terms is turned into a campaign about character assassination of an individual. Mr. Peres is at the end of his career. He’s entering his 80’s. He’s a respected and decent man and shouldn’t be treated with hashtags. We’ve used that way too many times in many campaigns in this country recently and that is inappropriate. And I hope that is not a factor in this discussion and that we focus on the design and not him, the way it has been done by the media. By the social media.”
Then it was Paul Savage’s turn. As the attorney for the Royal Embassy Condominium Association, he argued, “The City’s governing Comprehensive Plan is the highest land development regulation that the City has. There can be no greater or more important criteria in all of our land development regulations than compliance with the express requirements of the Comprehensive Plan … We expect that it be enforced according to its text.”
While the plan says pedestrian access can be waived for non-residential construction, Savage said, that same waiver does not exist for residential construction. “This was so important and so fundamental to our land development regulations given this community, given its site on the beach, that public access is fundamental in all of our new residential construction,” hence the lack of qualifying language for residential properties, he argued.
Like Murphy in his opening statement for the City, Savage referred to the role of the City’s design criteria in allowing the Board to require reorientation of the building even though it meets all zoning requirements. “This Design Review Board and all of the design criteria,” which include orientation, he said, “have equal power, majesty, and importance as does the zoning code … Staff and the Board are required to enforce the criteria,” he said. “[C]ompliance with the zoning – which is very important and appreciated – does not get you out of the design review criteria. Those are just as important.”
“The orientation, the sunlight, and ocean breezes, those are in your design criteria and in the design guidelines, which is separate from the Code,” he continued. “[It] says that all building should promote light, breeze, and view corridors to the ocean or bay. This idea that only the North and South adjacent property owners, that only their view or their opinion counts is ridiculous … I’m glad that the North-South buildings were able to get a settlement agreement and I’m very happy for them. But their opinion is not the only opinion. This is for the whole city.”
Addressing potential legal action, Savage said, “No one has said that your design criteria are unconstitutional. They’ve been in place for years. The orientation of the building is in every way in the Staff’s purview.”
On the issue of the “takings” for the public beach access, Savage said it was not for the DRB to litigate but said the Comp Plan “is the law right now. It’s valid. It hasn’t been struck down. You may need to litigate… but for today, you have a valid provision that’s point blank ... you need to enforce it. If you grant their application, you’re ruling on that. You’re saying we don’t have to do that … If you grant a continuance, you’re not necessarily ruling on that question.” He asked the Board to “Take the safe road. And that is, enforce your Comprehensive Plan, go with your professional staff … Go with the protection of your community. Go with storm surge resiliency. Go with beach access. Take the safe route. Do not rule and let them out of our Comp Plan. Do not rule today.”
During the public comment period, retired Miami Beach lifeguard Leigh Emerson Smith, said the positioning of a lifeguard tower directly in front of the Marlborough house “was a relief for beachgoers and lifeguards alike because too many drownings and terrifying ocean recues had occurred in that one mile stretch of beautiful beach [between 53rd and 64th] with no lifeguard keeping watch.” She said the positioning, however, was “puzzling given the lack of public access” there. “With a new building in the works directly behind the existing lifeguard tower, public access can now logically be accommodated,” she said. “As a recently retired 35-year lifeguard and lifeguard lieutenant and as a member of the Surfrider foundation, I am a strong advocate for public safety and beach access for all. A goal of being good citizens, stewards, and neighbors included in the new construction plan is wise, thoughtful, and commendable and will be met with much gratitude from those who will gain easier access to the beach.”
In his rebuttal, Larkin said, “With regard to the Comprehensive Plan, a policy can be well intentioned but it can still violate U.S. Supreme Court decision.” He noted just compensation for the land for public access would be approximately $4 million which he said “is pretty expensive and the city has other needs” so he didn’t anticipate the Miami Beach City Commission would approve such an expenditure. Finally, he said, “This is really just a case where a well organized, small group of neighbors simply wants to promote a view across our private property. That is wrong. At the expense of our adjacent and contiguous neighbors where we are improving their view corridors. It simply boils down to nothing more than that. If we have to fight the beach access through different means of litigation, we’re happy to do so. But really the core of this case is whether you all would agree that neighbors to the West over 300 feet away, across a six lane roadway should benefit more than our immediately adjacent neighbors.”
Board member John Turchin kicked off the Board discussion. “I think what we’re talking about is, is it consistent with the goals of Miami Beach?” Noting that his grandfather lived in the nearby 5660 building, he said, as buildings went up one at a time, “The beach access wasn’t thought of back then. First everything got developed on the ocean and it created a concrete canyon and then the development started on the other side of the street which eventually evolved into where we are today.”  
To Larkin, he said, “The Comprehensive Plan says to grant the public access. How do we? Your client is totally ignoring right now that provision … Is it the right of the public? Is it the intent of the City to create a Comprehensive Plan for the public to gain access? … This is a discussion for the Board here what the intent is and what this Comprehensive Plan really means.”
Annabel Delgado, an architect on the Board, recalled the 6800 Indian Creek project also designed by Arquitectonica in which access to the bay was provided. Similarly, she noted, that building was parallel to the bay, not perpendicular as Staff had recommended. “I approved that application because you were doing extensive gymnastics to include not only the green space at pedestrian level but the pedestrian pathway and access to the bay. And to me that was remarkable. It was really a neighborly gesture that had bigger than you implications …Why did you not consider pedestrian accessibility through the building like you did in the previous project? Other than the economic part of it, because I’m looking for bigger gestures.”
Fort-Brescia said, “The developer who is our client on the bay made that choice of access to that boardwalk. That is a stretch of land that doesn’t have a lot of options of how to get to the bay. But also he had a crosswalk right there at the intersection.”
Elizabeth Camargo, also an architect, focused on the public nature of the beaches in her observations. “When I first moved to Miami, I was shocked by the privatization of the oceanfront. I used to live in North Miami Beach and whenever I went to the beach I felt like I was intruding into the privacy of the building owners across the street from where I used to live … and that was very common for most of Miami Beach except for South Beach where you have the park and it’s very direct access. So I think whenever we are facing a new project, it’s an opportunity for us to correct mistakes from the past. And I think the more opportunities we have to make the beach public we should take advantage of that.” She urged the Board to come back to the conversation started by John Turchin, “the conversation about the private versus the public and who should come first and how we deal with that conflict because that’s pretty much what you’re dealing with here is the right of the residents living in the [5775] building to have their best views of the ocean versus in a way compromising the public view corridors and access to the beach. I think we should go back to that conversation because that may help us trying to guide our discussion in a way that, maybe, may result in more positive progress.”
After some more back and forth, Larkin then made an offer, “This is a well funded developer, that’s for sure, and they could certainly engage in long costly litigation with regard to beach access if you all would impose a condition making it mandatory. But in giving it a lot of thought, they have decided on a voluntary basis that they could grant beach access through their private property. There are many arguments against it and I’ve been happy to advance them to you all today but as a practical matter what they want to do, they don’t want to be perceived as a billionaire bully, which was the term coined in the [Miami] Herald based on the urging of certain residents. They don’t want to be perceived in that light. So in order to avoid this costly litigation they certainly would be willing to provide this pedestrian access which you’ve seen has dominated this discussion.” He suggested a 5-foot easement with landscaping.
When the Board turned to discussion of reorienting the building and potential design changes, Larkin said of the beach access offer, “Bear in mind, the beach access is only on our proposed design. If you all would try to change orientation of the building, we withdraw our voluntary offer, invite you all to deny the application, and we’ll appeal it to the City Commission.”
Delgado responded, “See, Michael, I’m not ready to approve the building. I think it needs the beach access but I really expect much more from you guys. … and I feel bad being bullied that if we don’t approve it then we don’t get that access.”
Larkin shot back, “You’re not being bullied. It’s just a reality.”
Turchin challenged Fort-Brescia to consider reorienting the building. “As you know many buildings have been built all along the ocean with a East-West orientation with very narrow lots and they’ve accomplished a good design and a good layout and they’ve stepped the buildings. It can be done … has it been explored?”
Larkin responded, “There is no alternative design for a perpendicular layout.”
Turchin asked again, “So there’s no consideration whatsoever for an alternative design to turn it perpendicular?”
Fort-Brescia said, “In the process we did consider it and it was awful, frankly. It created all these windows looking into all the neighbors …”
“Well you can step the apartments so that they splay out not going directly North-South,” Turchin said. “You’re a world class architect. You’re one of the best in the world and there’s no alternative solution?”
“That is better? No,” Fort-Brescia replied. “I think we did look at many alternatives but I think that in the end all the alternatives really would have created further issues with this Board and much larger ones with the neighbors and we think that we wouldn’t be coming here with something that we didn’t think was the best solution for the site.”
“What we’ve been given from you all is it’s all or nothing,” Turchin said. “If we don’t approve what you have you’re taking away the easement and either we deny it or approve it and that’s basically what you’re saying.”
Board member James Bodnar, another architect, said, “I’d ask that they come back because I think Bernardo you’re a much better architect than this. I think you’re an excellent architect who historically have done iconic buildings and have represented a whole range of tastes … I think if you had an opportunity to come back with a walkway in the site I think it would be a much easier task to approve it.”
After a straw poll indicated there were not enough votes to approve the project, Boutsis asked Larkin if they wanted the Board to deny the application or ask for a continuance.
After a brief recess, Larkin came back with an offer of a larger pedestrian access of 15 feet as long as the Board approved the design and orientation as proposed. Given the settlement agreements with the Villa di Mare and L’Excellence, Larkin said there would be an even larger group of residents opposed to the project at the next meeting if the building’s orientation were changed “so that is not an option for us at all.”
Tucker Gibbs, an attorney for Villa di Mare supported Larkin’s statement. “My clients are to the North. The sun is in the South. What happens is if the orientation is changed, my clients are in the dark.” Shadows, he said, are not a concern for the Royal Embassy 300 feet away. “My clients are directly affected by the change in orientation on this. That’s a critical issue and that’s one of the reasons why my clients actually settled because the orientation for us is the most important issue because we are directly affected by it.”
At that point, more than three hours after the discussion began, the Board voted to continue the application to December.

Image: Arquitectonica