Bal Harbour Shops sues village over response to its planned expansion

Lawsuit demands that the village administratively approve the project as required by state law

Whitman Sues Bal Harbour Over Affordable Housing Law
Matthew Whitman Lazenby and Jeffrey Freimark with rendering of Bal Harbour Shops (Whitman Family Development, Bal Harbour Village, Court of Appeals for the Eleventh Circuit, Getty)

The owner of Bal Harbour Shops is counterattacking the village’s plan to fight a mixed-use expansion of the high-end shopping center under Florida’s new affordable housing law. 

Bal Harbour Shops, owned by Whitman Family Development, filed a lawsuit against Bal Harbour on Tuesday, two weeks after submitting an application under Florida’s Live Local Act to build up to 275-feet-tall towers at the 18-acre property. The project would include 528 residential units — with 40 percent set aside for workforce housing — a 70-room hotel and another 46,000 square feet of retail. 

News of the application sparked outrage among elected officials and village residents, who aired their grievances during a council meeting last week. 

The complaint alleges that instead of processing the application as the village is supposed to under state law, Bal Harbour “promised its residents” a moratorium. The council last week voted to authorize the village manager to protect the village’s quality of life in response to the application. 

“It’s become painfully apparent to us since we filed our application that the public’s concern about the application is driving the elected officials and administrators to attempt to take positions that are inconsistent with the Live Local Act,” attorney John Shubin told The Real Deal. Shubin filed the complaint on behalf of Whitman Family Development. 

(Read the full complaint here.)

Gov. Ron DeSantis signed the Live Local Act into law in March. It provides height and density bonuses to developers if they set aside 40 percent of the residential units for people earning up to 120 percent of the area median income, for at least 30 years. The law preempts local governments’ density and height regulations, so a property owner of a mixed-use, commercial or industrial site can build structures as tall as those within one mile of the proposed project if they include workforce housing. 

Shubin said that the village council’s plan to move ahead with a moratorium was “deeply concerning.” He said Bal Harbour Shops’ relationship with the building official appears to be “getting very cold very fast.” 

“We’re hoping the village recognizes its responsibilities under the Live Local Act and processes this application appropriately,” he added.

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Bal Harbour Mayor Jeffrey Freimark declined to comment. Village Attorney Susan Trevarthen and a spokesperson for the village did not immediately respond to requests for comment. 

Freimark had said that the existing development agreement between the village and Bal Harbour Shops could restrict what can be built regardless of state law. The complaint alleges the opposite, that Bal Harbour Shops “expressly reserved the right to develop additional density, intensity and height” on the property “if subsequently enacted laws and regulations permitted additional development capacity.” 

Bal Harbour residents have long fought against a height increase at the Shops. 

Part of the expansion would be built where a Barneys store was previously planned. Saks Fifth Avenue, a longtime Bal Harbour Shops anchor tenant that has been in litigation with the Shops, also appeared to oppose the plans. 

In its complaint, Bal Harbour Shops alleges that the village has a “legacy of exclusionary zoning and housing practices … that go beyond a mere aversion to affordable housing.” Many residents in the village view adding affordable housing as “antithetical to the Village’s identity as an exclusive and luxurious community and something that needs to be protected against at any and all costs,” the complaint alleges. 

Some municipalities across the state are at odds with the law’s preemption, and have sought ways around it. Doral passed a moratorium on new construction, which expires this year, and reached a compromise with the developer of a mixed-use project, bringing the planned height down to eight stories tall.

The Florida Legislature could pass changes to the law that would ban counties and local municipalities from restricting floor area ratio. The bills currently in the Florida Legislature also seek to restrict the height of Live Local projects to up to the height of existing buildings within a quarter of a mile, rather than a mile. 

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