Morningside residents sue to stop Biscayne Boulevard project

Two-and-a-half years ago, the city of Miami’s Historic and Environmental Preservation Board approved plans to demolish a 72-year-old Biscayne Boulevard motel and replace it with a three-story office and retail building.

But a lawsuit seeks to scrap those plans and force the Mattoni Group to build an exact replica of 5125 Biscayne Boulevard, a 6,430-square-foot MiMo-era building that was demolished in July 2017.

On Monday, Morningside residents Elvis Cruz and Robert Stebbins filed a lawsuit in Miami-Dade Circuit Court against the city of Miami and 5101 RE CO LLC, a company managed by the Mattoni Group founder and president Ricardo Caporal. Cruz and Stebbins contend that the city and 5101 RE CO LLC violated the terms of a 2014 settlement agreement between the city, developers and neighbors that required both the hotel at 5125 Biscayne Boulevard and the neighboring Bayside Motor Inn be preserved by the developers.

“This case is an example of what I believe we are going to be seeing more of — neighborhoods and individual residents being forced to take legal action to get the city to enforce its laws and the contracts it enters into,” said David Winker, an attorney for Cruz and Stebbins, via email.

The deal would enable real estate developers to build a larger building after already cashing in on previous transfers of development rights, Cruz added.
“It was a clear-as-day, blatantly dishonest action,” Cruz said via email. ”I even had assistant city attorneys tell me, off the record, that this was clearly a breach of contract. It’s another money-motivated manipulation at Miami City Hall.”

“We are in the process of reviewing the matter as we have not been served yet,” said city attorney Victoria Mendez.

The Mattoni Group did not respond to a request for comment. Developer Avra Jain, who said she retains partial ownership in the project, said she hasn’t been served with a lawsuit either. Jain also denied that the covenant has been violated in any way. “There were two buildings: one was contributing and one was non-contributing,” Jain clarified, adding: “You know I follow the rules. Nobody has been more for preservation than I have. Why would I not follow the rules?”

Jain also pointed out that the Third DCA had already ruled against Cruz in 2018. Indeed, Cruz, Stebbins, and Damian Pardo retained attorney Linda Carroll in July 2017 to file a writ of certiorari to prevent 5125 Biscayne’s demolition. Elliot Scherker, 5101 RE CO LLC’s attorney, argued that the writ was moot since the building was already demolished. The Third DCA agreed and ruled in 5101 RE CO LLC’s favor in November 2017.

Winker insisted that this lawsuit is “unrelated to that writ” filed two years ago and is “an action to enforce the settlement agreement entered… between the parties.”
“The developer and city breached the terms of the settlement agreement,” Winker added in an email.

Winker contends that both the 5125 building, which was built in 1947, and the neighboring 67-year-old Bayside Motor Inn at 5101 Biscayne Boulevard were to be preserved under a restrictive covenant that was agreed to between Jain, the city, and residents of neighboring Morningside, five years ago.

But in February 2017, Jain and the Mattoni Group presented plans to the historic preservation board that only preserved the Bayside Motor Inn. As for the 5125 Biscayne building, the developers proposed knocking it down and replacing it with a new 18,994-square-foot building, designed by South Beach-based architecture firm Urban Robot Associates, with retail on the ground floor and two floors of offices on top. That concept was approved by the board by a vote of 4 to 1.

The covenant Winker referred to ended nearly a decade of litigation surrounding both properties.

Back in 2004, Chetbro Inc. proposed demolishing the two MiMo motels and replacing them with an 87-foot tall condominium. Although initially approved by the City Commission, the decision was soon met with lawsuits filed by Cruz and other Morningside residents. By 2006, the city was siding with the Morningside residents and supporting a 35-foot height limit for the recently enacted MiMo Biscayne Boulevard District. Chetbro, however, contended it filed under zoning that allowed it to build as tall as 95 feet in height.

In November 2013, Jain, known for rehabbing the Vagabond Hotel and other Biscayne Boulevard properties, paid $2.1 million for the 5101 and 5125 buildings. Two months later, Jain entered into a settlement agreement with Morningside litigants and the city. Besides requiring the preservation of both buildings, the suit claimed that the covenant granted four times the amount of transferable development rights, or TDRs, “in order to encourage the preservation of the historic property and minimize the impact of the development of the property on the MiMo District and the surrounding neighborhood.”

City records indicate that Jain sold 339,789 square feet of development rights to four different development sites in Miami between October 2014 and July 2015. Recipient sites included Park Grove in Coconut Grove (39,739 square feet), Eve at the District in Wynwood (107,000 square feet), Brickell Heights (122,306 square feet), and Brickell Ten Condos (71,014 square feet).

Then, in June 2016, Jain sold at least part of her interest to 5101 RE CO LLC for $4.1 million.

Back in February 2017, Jain contended that the 5125 building was in horrendous shape, having sustained significant fire, water, and termite damage. “I can tell you without a doubt that the building is not worth saving,” Jain told the historic preservation board.

Cruz and the Morningside Civic Association appealed the board’s decision to the Miami City Commission in May 2017. Planning Director Francisco Garcia, however, called the restrictive covenant “immaterial to that particular application” and insisted that the 5125 building was never officially declared a contributing historic building. Iris Escarra, attorney for the Mattori Group and Jain, argued that Jain did exactly what she was supposed to do in the agreement: which was to not build an 87-foot-tall building, preserve the contributing Bayside Motor Inn Motel, and submit plans to the HEPB.

During the May 2017 commission meeting, Cruz and several Morningside residents spoke out against replacing 5125 Biscayne with a new commercial building. There were also many Upper Eastside dwellers — including from Morningside — who lauded Jain’s previous projects on the boulevard and supported her plans.

The commission unanimously sided with the developers and denied the appeal.

Winker said the decision demonstrates how the city has “gone rogue” in not enforcing its own rules. “It is ridiculous that residents and lawyers are having to spend their time suing over such obvious and egregious matters,” Winker wrote.

For that reason, Winker said his clients are also suing for monetary damages to be determined by the courts as well as legal costs.
The city is also in a legal dispute with the developers. On March 13, 2019, the city placed a lien on 5125 Biscayne Boulevard for work performed without a finalized permit and placing an illegal chain link fence along Biscayne Boulevard.