Court rules Privé’s sidewalk, built through homeowners’ properties, is illegal

“The building permit is predicated on the sidewalk, which is a trespass, so the entire building permit is invalidated,” Matthew Leto, attorney for homeowners

TRD MIAMI /
Oct.October 12, 2017 03:00 PM

Prive at Island Estates and BH3’s Charlie Phelan, Greg Freedman and Daniel Lebensohn and Gary Cohen

UPDATED Oct. 13, 4:50 p.m.: A judge has deemed Privé at Island Estates’ sidewalk, built through homeowners’ properties, is illegal, as the years-long war between the condo developers and their Aventura neighbors wages on.

Several nearby homeowners and the Island Estate Homeowners Association had filed suit against the developers in 2014, alleging that the sidewalk constituted trespassing. The developers had argued that they used a utility easement to build the sidewalk.

Gary Cohen and BH3’s Greg Freedman, Daniel Lebensohn and Charles Phelan’s two-tower, 160-unit project is under construction on an 8-acre island at 5000 Island Estates Drive. The developers say the project will be delivered in late November.

In the court order signed on Tuesday, Circuit Court Judge William Thomas granted the neighbors’ motion for partial summary judgment against the developers Two Islands Development Corp., NI Holdings and Last Lot Corp., saying the sidewalk constituted a trespass and using the utility easement for that purpose is not allowed.

The sidewalk at Privé at Island Estates

Matthew Leto, a partner at Hall Lamb Hall & Leto, representing homeowners David L. Clarke and Dara H. Clarke, said the city had required the sidewalk be installed to build Prive.

“The building permit is predicated on the sidewalk, which is a trespass, so the entire building permit can be invalidated….” he said. “The city of Aventura really needs to shut down this building at this point.”

A hearing or trial is still to be set to determine damages against the developers, Leto said. The homeowners will be asking that the sidewalk be removed and “will hopefully impress on the city to take a look at what happened there and hold these developers to the rules initially set: ‘You can’t have this building unless you comply with the requirement to have this sidewalk so you will have to take the building down,’” he said.

Lebensohn, a BH3 principal, said via email that “Privé’s long-standing development rights and unfettered access rights remain as affirmed by Judge Thomas and others…. Both federal and state judges have also ruled that the neighboring properties, including the property owned by Mr. Leto’s client, have no standing to challenge Prive’s building permits with nearly identical rulings stating the neighbors have no standing whatsoever to challenge the building permits for Privé,” he said.

“All litigation having anything to do with Privé has been adjudicated in our favor and we look forward to closing units next month,” he added in the email. “Any noise to the contrary is that of a person that refuses to accept reality and the directive of the court.”

The legal wranglings have dragged on for years. Homeowner associations first sued the developers in 2013 in an attempt to stop construction of the Privé condo development on the basis Cohen had agreed in the late 1990s to only build single-family homes on the project site, which is on an isle north of Williams Island.

In a separate lawsuit, filed by neighborhood resident Clarke against the developer, Leto secured a court order rejecting the city and developer’s motion to dismiss and paving the way for a trial set to begin in March. Clarke had sued both entities alleging various violations, including defamation and excessive use of force.

In January, New York-based Maxim Capital and Austin-based Prophet Capital Asset Management provided $102 million in financing to the developers, adding to a previous $25 million loan from Maxim.

Privé topped off in November at 16 stories and is almost 75 percent sold with more than $350 million under contract, according to Lebensohn.


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