UPDATED June 17, 2022, 7:30 p.m.: The town of Surfside is facing a lawsuit over its approval of a luxury oceanfront development next to the aging Carlisle on the Ocean condos, reflecting fears of construction near old buildings that have rippled through the community in the year since the deadly collapse of Champlain Towers South.
Shannon Gallagher, a Carlisle resident who filed the complaint, argues that the commission approved developer Fort Partners’ Hillcrest by the Sea condo project in violation of the town’s zoning code and charter, accusing officials of erroneously interpreting development laws in a slew of decisions that she says could endanger Carlisle residents.
In the suit, Gallagher alleges Surfside commissioners took a “cavalier attitude” when they unanimously approved the plan for the 11-story, 14-unit Hillcrest project at 9165 Collins Avenue on April 12.
The condo building would rise on the site of an older one slated for demolition south of the 12-story, 116-unit Carlise, which was built in 1965.
Gallagher, who ran for a commission seat in March but lost, initially filed the petition in May in an effort to overturn the vote, but filed to amend it this month. A judge on Tuesday ordered the town to respond, meaning the lawsuit passed its first hurdle.
Concerns in the complaint echo allegations levied after the collapse of Champlain Towers South against the developers of Eighty Seven Park, a condo tower completed in 2019 just steps from Champlain. Residents said they felt vibrations during construction of Eighty Seven Park and that water from the worksite drained into the Champlain property, according to the primary lawsuit over the collapse.
Champlain residents also pointed to an agreement between the city of Miami Beach and the developer of Eighty Seven Park that moved the project site closer to Champlain. (The development team has denied wrongdoing and settled the case through its insurers.)
One of the main concerns over the Hillcrest project is its 32-space underground parking garage, which plans show is more than 12 feet below the street and just three feet from the Carlisle, Gallagher said. Although not a code violation, it should give officials pause, she argued.
“The commission should look at this and say, ‘We don’t know what happened with the Champlain tower collapse, but questions have been raised about how close Eighty Seven Park has been constructed next door, so as a matter of caution let’s get in line with other waterfront communities that require more subterranean setbacks between properties,’” Gallagher said.
The garage’s proximity to Carlisle could be remedied if developers fix an alleged violation, she said. Eighty percent of the Hillcrest project’s permeable land, or portions reserved for drainage, is east of the bulkhead line, the site’s invisible easternmost boundary, the complaint says. Under the code, Gallagher argues, the permeable land should be moved west onto the lot, which would force Fort Partners to downsize its underground garage to allow for water drainage.
Collins Avenue slopes downhill in the northbound direction, raising fears that water from the Hillcrest lot would pour into the Carlisle property in a manner similar to the alleged water seepage from Eighty Seven Park onto Champlain, she said.
The town countered that the Hillcrest project fits with all charter, code and other legal regulations, including with the permeable land requirement.
“Ms. Gallagher has the right to appeal the decision,” Lillian Arango, an attorney representing the town, said in a statement. “The town is reviewing the petition and will respond in due course pursuant to the appellate process.”
Bill Thompson, Fort Partners’ director of development and construction, echoed that sentiment in a statement to The Real Deal, saying the project was “designed in full compliance with the town’s code, comprehensive plan, and town charter.” Thompson also cited a construction ordinance the town passed in the months after the collapse, which outlines requirements to protect nearby buildings, including pre-construction surveys, and seismic and water table monitoring.
In other alleged code violations, Hillcrest is set back 25 feet on the east side, not the required 30 feet, according to the complaint.
The project also exceeds height limitations, Gallagher alleges, as plans show part of the rooftop includes a 20-foot tall enclosed structure that would extend the building above the maximum allowed 120 feet. Exceptions to the rules are for structures like a flagpole, but Gallagher said it would be an entire air-conditioned room.
Surfside Mayor Shlomo Danzinger said town officials, including professionals in planning and development, spent weeks studying the project to ensure consistency with the code, including of the rooftop structure.
The complaint also alleges that the town failed to provide a required notice to nearby residents of the April hearing, as Gallagher said she did not receive a mailed alert and that another Carlisle resident only received it the day of the hearing. The town said it complied with all noticing requirements.
Arango said in a statement that the town’s review and approval of the project was “consistent with its charter, code and applicable law, including compliance with notice, pervious and height requirements.”
Fort Partners first submitted its application in August. But once the project was reviewed by several town boards, the developer waited to seek final approval until after the March election, Gallagher alleges, when a pro-development commission was selected.
Among the allegations in the class-action lawsuit brought by Champlain residents was that the Terra-led development team of Eighty Seven Park proceeded with sheet-pile driving for the foundation despite an inspector’s warning of the “damaging vibrations” to nearby buildings.
At the April commission meeting, the Hillcrest development team and vibration monitoring experts presented a safety plan, which includes monitoring devices for vibrations and cracks at nearby buildings during construction that would alert when certain thresholds are exceeded. The construction technique would be drilling into the ground, not piling, which minimizes vibrations, according to the presentation. The underground soil will be mixed with cement and there won’t be changes to the water table.
But Gallagher says she does not trust the developer’s safety precautions, arguing that vibrations from the construction of another Fort Partners project, the Seaway Villas, south of Hillcrest, can be felt at the Carlisle. One Carlisle resident’s sink fell off the wall during Seaway excavation work, she said.
Fort Partners, led by CEO Nadim Ashi, has been aggressively expanding along the Surfside oceanfront since completing the Four Seasons Residences and Hotel at the Surf Club, at 9001 and 9011 Collins Avenue, in 2017.
Apart from the Seaway, the Miami-based development firm, which owns all of the Four Seasons hotels in South Florida, is in contract to buy the site immediately south of the Surf Club property at 8995 Collins Avenue, where the developer secured approval for an 11-story, 19-unit development designed by architect Kobi Karp, who worked alongside architect Richard Meier on the Surf Club development.
Fort Partners’ Thompson wrote that the developer is working with neighboring properties, including the Carlisle’s homeowners’ association, “to provide the gold standard in preconstruction engineering surveys and construction vibration monitoring to mitigate any perceived construction impacts to neighboring properties.”
“It is unfortunate that Ms. Gallagher has decided to file an appeal as the lone unit owner in the Carlisle Building but we will respond appropriately and look forward to delivering another successful, first-class project to the Town of Surfside,” Thompson said.
The developers can’t offer assurances against the underground differential settlement that will result from construction and impact nearby buildings, Gallagher said.
“Despite the thinly veiled safety concerns, you may see it as a risk calculation with which Fort Point is comfortable, knowing they will likely be long gone before the full impact of their work is realized,” she said. “They seem to rely on insurance coverage rather than conscientiousness.”
This story was updated to clarify a comment made by Surfside Mayor Shlomo Danzinger.