Miami Beach sues own board to overturn decision on Crescent Heights’ and Terra’s proposed condo tower

The board had voted in favor of developer’s argument that elevator shafts, stairwells and mechanical areas should not count in floor-to-area ratio calculations

Dec.December 13, 2019 08:45 AM
David Martin, Russell Galbut, and a 500 Alton rendering (Credit: The Next Miami)

David Martin, Russell Galbut, and a 500 Alton rendering (Credit: The Next Miami)

Russell Galbut and David Martin’s quest to build a luxury condo tower at South Beach’s main entrance near the MacArthur Causeway has hit another snag.

Miami Beach commissioners approved a development agreement with Galbut’s Crescent Heights for a 519-foot condo tower at 500-600 Alton Road last year. The Miami Beach developer later teamed up with Martin’s Coconut Grove-based Terra to propose Park on Fifth, a 44-story, 337-unit residential building. It will have a 15,000 square-foot retail pavilion, a 578-space parking garage and a new three-acre park with elevated pathways.

But now city planning officials are attempting to block Terra and Crescent Heights from getting an additional two floors, following a recent decision by the city’s board of adjustment to not count elevator shafts, stairwells and mechanical areas in calculating the proposed building’s floor-to-area ratio, or FAR.

Arguing that the board reversed the city’s interpretation of how it’s been calculating FAR for more than 40 years, Miami Beach Planning Director Thomas Mooney petitioned a Miami-Dade appeals panel to overturn the board’s Nov. 1 vote.

By erasing elevator shafts, stairwells and mechanical areas from the FAR calculation, Park on Fifth would have 40 floors of units instead of 38, a move that is driven purely by financial interests, Mooney’s petition states. At the Nov. 1 adjustment board hearing, the petition states, Galbut “begrudgingly admitted” the additional floors are necessary to make the project economically viable. The board’s vote was first reported by the blog RE Miami Beach.

The petition cites the developers’ contention that FAR shouldn’t include shafts, stairwells and mechanical areas as “nonsense,” and points out that Crescent Heights and Terra have never raised the issue in numerous development applications the firms have submitted over the years. Furthermore, the board’s decision will have far reaching consequences, starting with other developers and property owners challenging the city’s FAR calculations on similar grounds, according to the petition.

Ron Lowy, the attorney for the Park on Fifth partnership shell corporations, admitted Galbut didn’t challenge the city’s FAR calculation methods previously because it didn’t hurt the developer’s bottom line.

“This particular developer, who does have a history of building in Miami Beach, has previously submitted projects and proposals in which the interpretation being applied to the FAR did not have a negative impact on those projects,” Lowy said. “This particular project, based on its economic costs inclusive of the park and other public benefits, required a careful review of the FAR ordinance…to develop a viable project.”

In an emailed statement, Miami Beach City Attorney Raul Aguila said the adjustment board went far beyond its prescribed authority in an attempt to amend the city’s zoning ordinance during a quasi-judicial proceeding. “That power is reserved unto the City Commission,” Aguila said. “The city code outlines express procedures that even the commission must follow in amending its zoning code.”

Aguila said his office’s job is not to take a position on the impact of the board’s order, but to ensure the power to amend the zoning ordinance remains under the purview of the mayor and city commissioners.

On Monday, Lowy filed a motion to dismiss the petition, allegedly because of improper actions by the city’s legal team and planning department. Park on Fifth’s lawyer claims the board’s order was drafted by planning department officials after the Nov. 1 vote. He said the officials wrote the order in a manner that would bolster the city’s petition to overturn the board, which would be a conflict of interest. He noted the order is signed by Michael Belush, the city’s planning and zoning chief, instead of the chairman of the adjustment board.

“I have never seen the city take an adverse position against an order, draft and sign the order and then appeal the order,” Lowy said. “Staff may assist a board, but the same staff cannot overturn the board’s work. That is a direct conflict of interest; it is against due process and all the principles of fair government.”

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