Court Finds City Violated Zoning Code In Settlement Benefiting Developer

Ariel Fernandez

Founder & Editor
[email protected]

The backroom settlement with developers that led to the pending development of a Wawa across the street from George Washington Carver Elementary and Middle School was an eye opener to residents of Coral Gables.

As you will remember, the Wawa case was settled by the City, after the City intervened in the matter between Miami-Dade County and the Lola B. Walker Foundation. The settlement, in that case, did not involve the City at the time. The Foundation secured a Community Center, which is currently being used as the offices of the developer, while the developer got the rights to develop the adjacent lot across the street from the school.

However, it is not the only instance in which City staff has worked out a backroom settlement that has helped advance the development rights of developers in complete disregard to City code.

The 701 & 711 Valencia Avenue Deal

Biltmore Development, LLC (“Biltmore”) purchased three properties located at 701 and 711 Valencia Avenue (third lot is located between the two) in 2015 and 2016. The lots are located behind the David William.

In 2018, Biltmore applied to build an 11-story, 124-foot residential building, when the City’s code allows a height of 70 feet on lots that are smaller than 20,000 square feet. Property records searches for the three Biltmore properties add up to 17,319 square feet. However, former City Attorney Craig Leen stated, in an opinion, that the permissible height at these sites was 150 feet based on site specific zoning regulations. According to the Court opinion, “In reliance upon these prior City Attorney legal opinions, City Attorney Craig Leen stopped the Board of Architects from hearing the David William’s objections.”

The David William Condominium Association appealed the zoning determination, but it was denied by the City due to the fact that the appeal should have been filed in the Circuit Court. The appeal was filed in the Court by the David William and the City reached a settlement with the association and the developer. “Under the Agreement, the David William agreed to withdraw its lawsuit, and the Biltmore agreed to reduce the size of its project from 124 to 75 feet in exchange for the City granting its project an increase of FAR from 2.0 to 2.7.”

FAR refers to Floor Area Ratio. The FAR is calculated by taking the square feet of the floor area of the development and divide it by the square footage of the property. The difference of 2.0 to 2.7 may not seem like a large difference, however, based on 17,319 square feet of the property, a 2.0 FAR would allow for 34,638 square feet, while a 2.7 FAR would allow for 46,791 square feet. It represents an additional 12,153 square feet.

The settlement was approved by the City Commission on March 12, 2019, with Commissioner Michael Mena stepping down prior to the discussion, as his firm Akerman Senterfitt represented Biltmore.

Alliance Starlight III, LLC v. City of Coral Gables, Florida

Alliance Starlight III, LLC (“Alliance”) is the owner of the properties at 717, 729, 737 and 741 Valencia Avenue. Alliance had also appealed the City’s decision in 2018. They were not included in the City’s settlement.

The City Commission held two “Executive Sessions” of the City Commission to discuss this case. (November 12, 2019 and June 9, 2020). The Executive Sessions are exempt from Sunshine and held in private with no public participation. Minutes are recorded by a court reporter, but not available to the public until after the litigation is concluded.

The Commission approved an amended settlement agreement at the March 9, 2021 Commission meeting. Alliance appealed.

On March 15th, the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit filed its opinion in Alliance Starlight III, LLC v. City of Coral Gables, Florida. The case was decided on by a three Judge panel made up of Judges Walsh, Trawick and Santovenia.

In its decision, the Court found that the City Commission, in approving the settlement, “departed from the essential requirements of law in two respects. First, it adopted a Resolution that is inconsistent with its zoning code limiting FAR to 2.0. Second, the City Commission adopted a Resolution in violation of Sections 3-1703 through 3-1705 which require that to approve a settlement, there be evidence of an unfair, disproportionate, or inordinate burden imposed on the property owner.”

The decision explains that neither the City nor Biltmore ever describe any circumstances where Biltmore suffered an inordinate or unfair burden.

The Court’s Decision

“Approval of the settlement permitting an increase of FAR allowed for disparate treatment of the single Valencia Property for the sole benefit of the owner of the Biltmore. The Resolution permitted an impermissible variance from FAR requirements required by the Comprehensive Plan and Zoning Code yet denied the same FAR increase to properties similarly zoned like the Petitioner’s property.

As set forth above, the City violated its own zoning code in approving a settlement agreement without requiring proof or making findings that the developer suffered an inordinate or unfair burden. Likewise, the resolution passed without any competent, substantial evidence to support it. Because there was no competent, substantial evidence to support the resolution approving the settlement agreement, we must quash it.

We grant the Petition for Writ of Certiorari and quash the resolution approving a Settlement Agreement allowing an increase of FAR in violation of the city zoning code as a departure from the essential requirements of law, absent competent substantial evidence to support it, and because the resolution constitutes impermissible spot zoning.”

Bert J. Harris Act

According to the Florida Bar, “Florida is a state that provides relief to private landowners when a law, regulation, or ordinance inordinately burdens, restricts, or limits private property without amounting to a taking under the U.S Constitution.”

The City argued that Biltmore had an “inordinate burden under the Bert J. Harris Act.”

However, the Court disagreed. “This Court finds no merit in the Respondent’s argument that the mere mention of an alleged Bert J. Harris problem satisfied the property owner’s burden to enable the City to ratify the settlement.”

Dissenting Opinion

In dissent, Judge Santovenia states that “there is no more substantial competent evidence in the record to support the approval of the 75-foot height for development of the Valencia Property than is lacking to support the FAR of 2.7. The record supports only that these negotiated terms were agreed to in the Settlement Agreement by Biltmore in order to resolve the lawsuit filed by its neighbor, the David William.

Cost And Appeal

As of May 19th, the City had already spent $151,793.60 on outside counsel for this litigation.

The City Attorney is appealing the Court’s decision, at tax payer expense.


15 thoughts on “Court Finds City Violated Zoning Code In Settlement Benefiting Developer

  1. Thank you Gables Insider. Very informative and very useful article for us, the residents of Coral Gables. Sometimes we are not properly informed about so many changes in our city – Unfortunately, we find out “after the fact”…

  2. If the city code allows a height of 70 feet only, ENFORCE it! It seems many people are lining their pockets every time a developer decides to “build higher”. I wonder how much they get per extra floor! Don’t we have enough height on the other side of Le Jeunne? The construction on Valencia Avenue is endless and if we do not slam the brakes on the height allowance, it will become a “mini Brickell”, thus destroying the beauty and appeal that characterizes the area. One cannot walk or drive due to the weekly “detours”. There are currently 2 large construction sites on Valencia before you reach Anderson. And if the developers get their way, there will be a new one behind the William!
    Do our elected officials understand the concept of “saturation”? Enforce our code!,

  3. The problem began when the city decided to ignore the zoning codes that conceptually represent a collective agreement about what kind of city in which we live and negotiate directly with developers..Evan anti growth commissioners did this
    from the Dias.It probably dates back to the Mediterranean ordinance,a form of negotiation.
    Developers come in with a piece of land that the agreed upon ordinance allows eight stories,they propose fifteen,they put some barrel tile on the roof and a stupid tower,buy a little “park”and get twelve stories.
    The worms can easily get put back in the can.Write it down ,agree to it and stick to it..This takes the commissioner’s,the manager and the department heads out of the equation.

  4. The City Manager or an elected official may be persuaded to request an Internal Investigation.

  5. Great article and well done in shinning a light on self dealing in the Gables.
    I would like to propose a name change to “City Beautiful.” Maybe
    Swamp Gables would be more descriptive and apropos!

  6. I am certain that someone (or more than one) in Coral Gables city government is getting a payoff. This type of thing really needs to be investigated by the FBI (they do investigate municipal corruption).
    This out of control development has gone on long enough.

  7. Thank you Gables Insider and Ariel for continuing your efforts in exposing these shady backroom deals between developers and our politicians, who not always act on the best interest of the residents of Coral Gables!

  8. Depending on who you are, what you want, willing to do & how deep are your pockets will determine if you get that 100% height and/or FAR increase above existing zoning law. Personal gain and looking out for themselves are very heavy in play here IMO.

  9. Excellent work Ariel! These type of shady deals are not in the Gables best interest, the tax payers are the ones with skin in the game not the political gurus’ catch them if you can.

  10. Thank you with all my heart! I do hope the Wawa is stopped for good as I live less than a block away and no one would hear the voices of my neighbors and me who were opposed to this atrocity!

  11. Excellent article! Bravo to Gables Insider for the impeccable job of informing the residents of substantial matters that affect us all!

  12. Great reporting. The high rises are out of control and its only going to make traffic worse- the shady deals with developers is unfortunately nothing new. George Merrick, the founder of Coral Gables acted as both the city developer AND the first mayor, which of course is a conflict of interest. He ostensibly paid himself as a developer and inflated the value of the land as mayor. You can read about the history of development and shady deals in Miami in the book “Bubble in The Sun” by Christopher Knowlton.

  13. Great article! That’s what we must all do! Fight! Stop the out-of-control high rises!
    Has anyone ever asked why the City bends over backwards for developers? Are the developers funding the out-of-control City PENSIONS!! We all know we cannot sustain the current Pension payouts without massive increases to our taxes! Few, if any, private companies have these lucrative pension plans any longer. Not sustainable! The City of Coral Gables needs to do the same!!

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