Bal Harbour development rules could hinder Whitman’s Live Local Act project

Bal Harbour officials are passing a slew of new development regulations that could bar Whitman Family Development from pursuing its Live Local Act project in the village. 

Whitman Family Development, owner of the high-end Bal Harbour Shops, wants to add a mixed-use project on the 18-acre mall site, using the Live Local Act. The state law, approved last year, allows developers to build taller buildings with more units than local regulations allow, in exchange for including affordable or workforce units. Developers that designate at least 40 percent of apartments for households earning up to 120 percent of the area median income can whiz by the approval process administratively, without going to a public hearing. On Wednesday, Florida lawmakers approved tweaks to the legislation that further benefit developers, though the changes aren’t final until Gov. Ron DeSantis signs off on the changes. 

Whitman Family Development’s proposal has touched off a firestorm in Bal Harbour, a small coastal municipality that’s largely home to wealthy residents, and that prides itself on its strict development regulations that restrict the tallest buildings, usually luxury condos, to the oceanfront. 

The Miami Beach-based family real estate firm, led by Matthew Whitman Lazenby, wants to build up to 275-foot tall towers with 528 apartments, of which at least 40 percent would be affordable, as well as a 70-key hotel, a private 200-member club and 46,000 square feet of retail on the northwest corner of Collins Avenue and 96th Street. The maximum allowed height on the site now generally is 56 feet, though garages can go slightly higher and an area within Bal Harbour Shops can reach up to 69 feet, according to a city memo. 

On Tuesday, the village council will take a final vote on the ordinances that could hinder the project. The council tentatively approved the new regulations last week. 

The village is considering ordinances that would limit the allowed construction noise, as well as create new parking and setback requirements. Another ordinance would relate to the allowable floor area ratio, or FAR, a measure of a building’s massing that dictates how big projects can be through a ratio of the total floor area and the development site. 

A major change in the village’s development regulations would invoke a “poor doors” ban, which has been implemented in New York since at least 2015. It would prohibit separate entrances, exits, elevators, stairs and amenities for renters in the affordable and market-rate apartments. The ordinance would mandate that affordable and market-rate units are mixed in the same buildings, instead of having separate buildings for differently priced units, and that all apartments are of equal construction quality. Also, the ordinance says that the unit sizes have to be somewhat equally distributed, meaning that if 25 percent of the market-rate units are two-bedroom apartments, 20 percent to 30 percent of the affordable units have to be two-bedroom apartments. 

At the Feb. 20 council meeting, Mayor Jeffrey Freimark reiterated that he and other village officials are not against affordable housing in Bal Harbour and support the Live Local Act’s intention. But the legislation is “poorly worded,” he said.  

“We have an obligation as a village to make sure it’s not done in a prejudicial manner and treats residents in affordable housing fairly and with dignity and with respect,” he said. Whitman Family Development’s proposal “shows affordable housing clearly segregated from the rest of the luxury amenities, literally back by the trash cans with no parking or direct access to the development’s luxury features.”

In a statement to The Real Deal, Freimark said the “developers chose to spring their application on us unannounced and incomplete.” If the Whitman Family had approached the village “collaboratively and civilly,” Bal Harbour would have given the firm a say in the ordinances. 

John Shubin, Whitman’s attorney, said that Freimark is merely concerned with preserving Bal Harbour’s “affluence and exclusivity.” 

“He’s doing everything possible to preserve the status quo in the Village of Bal Harbour, which means working class people will continue to be burdened by housing costs — and forced to commute hours to work each day,” Shubin said. 

Separately, in a Feb. 19 letter to the village, Shubin said the Skidmore, Owings & Merrill-designed project would have “one entrance for all.” In the letter, Shubin objected to the “poor door” policy and the rest of the ordinances, calling them a “pretextual attempt to prohibit affordable housing” and said the village needs “real leadership to educate them about the salutary benefits” of the project. 

The village’s use of the word “poor,” as in “poor door,” in media comments “is a shameful and defamatory ‘dog whistle’ and evidence of the village’s less-than-honorable intentions,” Shubin wrote. “Are ‘poor’ people not welcome in Bal Harbour?  At the very minimum, all your police and first responders who would be great candidates for this future housing deserve an apology for this very poor choice of words.”

The noise ordinance is a “thinly veiled attempt” to disrupt ongoing construction at Bal Harbour Shops and a “direct retaliation against the Whitman family for having the audacity” to propose the Live Local Act project, Shubin wrote. And the FAR ordinance is another way to “stop the only project that can bring affordable housing to Bal Harbour.” 

It’s unclear if or how Bal Harbour’s preliminarily approved FAR restrictions are at odds with state legislators’ tweaks to FAR for Live Local Act projects . 

Under the state changes on Wednesday, the FAR can be 150 percent of the “highest currently allowed” FAR in the county or city. The “highest currently allowed” excludes other Live Local Act projects or developments that received special exemptions. 

Bal Harbour’s ordinance would lower the highest allowed FAR in the village from 2.8 to 1.3, though it allows for developers to get bonus FARs if projects comply with incentives for buildings to be compatible with surrounding properties and neighborhoods. The ordinance, however, bans  incentives to accumulate to allow for a FAR of more than 2.8. 

The dispute over the ordinances is the latest chapter in the battle between the village and the developer over the project. 

In January, Whitman sued Bal Harbour, alleging that instead of processing the application, the village “promised its residents a moratorium,” according to the complaint. A week before the suit was filed, the council had directed the village manager to protect the village’s quality of life in response to the application. 

In a motion to dismiss the lawsuit filed by Bal Harbour last week, the village argues the developer “purports to take some sort of moral high ground in its alleged disdain of ‘NIMBYism,’” yet the Bal Harbour Shops’ owner lives nowhere near the village and has made no claims that the salespeople and waiters at the mall “could afford to live in the ‘affordable housing.’”

“The Live Local Act is not intended to be a bludgeon, carelessly swung at municipalities by greedy developers in the name of ‘affordable housing,’” the motion says, “without regard to a local government’s ordinances, rules or regulations.”