Miami Beach seeks to fix floor area ratio controversy involving Galbut and Martin’s Park on Fifth project

Legislation is in response to board of adjustment decision that essentially gave two additional floors to the 44-story luxury condominium

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)

Looking to short circuit an unwanted precedent for future development on Miami Beach, city officials are proposing legislation that would make it clear that a project’s floor area ratio includes elevator shafts and stairwells.

The Miami Beach Planning Board last week recommended that the city commission approve the new ordinance. It was drafted as a direct response to a recent Miami Beach Board of Adjustment decision that essentially granted Terra and Crescent Heights two additional floors for the Park on Fifth luxury condominium they are co-developing at 500-600 Alton Road. The measure clarifies and reaffirms that elevator shafts, stairwells and mechanical chutes are included in the definition of floor area, said Miami Beach Planning Director Thomas Mooney. The city commission still has to grant final approval.

“The definition of floor area has a lengthy history,” Mooney told planning board members. “That definition included specifically stairwells and elevator shafts. In 1988 and 1989, an ordinance review committee recommended to the city commission the definition be modified…to only list exclusions.”

As a result, in the 1990s, developers twice challenged the city’s interpretation that since elevator shafts, stairwells and chutes were no longer listed in the definition of floor area, that neither applied to floor area ratio calculations, Mooney explained. Both times, the Miami Beach Board of Adjustment sided with the city and denied the appeals. “There are three important reasons why those particular [elements] have been included in the definition of floor area and why they should continue to be included,” Mooney said. “Those areas add to the bulk and mass of a building. That is what floor area by definition regulates.”

Secondly, he said, it provides clarity regarding what is being reviewed from one floor to the next. And the third reason, Mooney said, is that the city has consistently counted elevator shafts, stairwells and mechanical chutes in calculating floor area for more than 40 years.

Mooney said the new ordinance would reverse the Nov. 1 decision by the Board of Adjustment that elevator shafts, stairwells and chutes should not have been included in the floor to area ratio calculations for Park on Fifth, a 44-story residential building with 337 units that will also have a 15,000 square-foot-retail pavilion, a 578-space parking garage and a 3-acre park with elevated pathways.

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As a result of the board’s ruling, Terra and Crescent Heights shell corporations building the project were granted the additional two floors. Ron Lowy, an attorney for the developers, previously told The Real Deal that Park of Fifth required a careful review of the city’s interpretation of floor area ratio to make sure the project is viable.

Earlier this month, Mooney filed a petition in Miami-Dade Circuit Court seeking to overturn the board of adjustment’s decision. As part of the petition, Mooney argued removing elevator shafts, stairwells and chutes from floor-to-area calculations would open the floodgates for other developers to seek the same interpretation.

During the planning board meeting, Neisen Kasdin, a zoning attorney and former Miami Beach mayor, said the reaction to the board of adjustment’s ruling is overblown. “There is no crisis,” he said. “There is no threat to the city. According to staff’s analysis, there are a handful of seven or eight current projects, that if they add the extra FAR that would be allowed under this interpretation of the board of adjustment is 86,000 square feet…There is zero urgency to it.”

Jeffrey Bass, a private attorney who is the city’s special counsel and filed Mooney’s court petition, said Kasdin was attempting a delay tactic. “The city commission wasted no time getting this matter before you,” Bass said. “It’s a very narrow and technical issue and I would ask you to send us back to the commission with a favorable recommendation today.”

Matis Cohen, a North Beach developer, said he is frustrated by the city’s tactics. “It shatters the confidence in the local process,” Cohen said, adding that it was unfair for the city’s administration to spend taxpayer funds to challenge a city board’s ruling in civil court.

“The claim that the city wants robust public debate while enacting zoning in progress is a further example of how the city negotiates,” he said. “And it is called hostage diplomacy.”

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