‘3 Big Decisions’
By Bari Auerbach

Decisions, decisions, decisions! In Sunny Isles Beach substantive issues regarding ethics, town center development and eminent domain proceedings have recently provoked pivotal decisions by the City Commission and the Miami-Dade County Circuit Court.

1. ‘ETHICAL DECISION’

At a recent city workshop held to discuss further strengthening the Sunny Isles Beach code of ethics, the majority of Commission members said they would not be in favor of adopting an ordinance proposed by Commissioner Danny Iglesias. Subsequently, Iglesias said he intended to get another interpretive opinion at a Miami-Dade County Commission on Ethics and Public Trust meeting tentatively scheduled for April 14.

‘Background Check’
In Sunny Isles Beach, it was formerly acceptable for city officials to disclose personal investments that might create a conflict when an issue came before the Commission for a vote. But in July of 2004, the Commission voted to amend a section in the Code of Ethics to provide for “a prohibition against interests in conflict with official duties”and prohibiting Sunny Isles Beach elected officials from “making any personal investments in enterprises which they have reason to believe that may be directly involved in the final decision as to a development approval until the certificate of occupancy is issued.”

Subsequently, Iglesias announced he would come back with another ordinance that would be even stricter, citing he felt the code of ethics should extend beyond real estate transactions and be more broad-based in order to be “fair.”

The “stricter” ordinance proposed by Iglesias in March 2005 states: “No current city officer or employee shall engage in any transaction or activity which would appear to a reasonable person to be in conflict or incompatible with the proper discharge of their official duties…Furthermore, should such a conflict occur, the city official or employee shall disqualify him or herself from official actions in those instances.”

Iglesias’ proposed ordinance would also prohibit city officers or employees from having a financial or other private business interest linked directly or indirectly through a family member regarding any matter upon which the officer or employee is required to act in the discharge of official duties.

In addition, Iglesias’ proposed ordinance would prohibit city officers or employees from engaging in any transaction or activity which involves the city or any person who at any time within the preceding 12 month period had been a private client in their firm or partnership. If the above-mentioned conflicts should occur, any city official or employee would have to disqualify themselves from official action.
The Miami-Dade Commission on Ethics would be empowered to enforce, review, interpret and render and advise their opinions regarding Iglesias’ proposed ordinance.

‘All’s Fair?’
According to some city residents, there is a perception that the amendment made to the code of ethics in July 2004 prohibiting elected officials from buying condos before certificates of occupancy are issued was aimed at Iglesias, who has invested in Sunny Isles Beach real estate. There has also been speculation that the “stricter” ordinance currently being proposed by Iglesias appeared to be aimed at Sunny Isles Beach Mayor Norman Edelcup, who is a member of the board of directors of Florida Savings Bankcorp - the parent company of Florida Savings Bank, which has a branch in Sunny Isles Beach and holds money for some of the developers doing business in the city.

Attempting to highlight the “fairness” of the amendment to the code of ethics adopted by the Commission in July 2004, Commissioner Roslyn Brezin said, “The thing I want to make clear is according to this, I cannot purchase before a certificate of occupancy is issued,” said Commissioner Roslyn Brezin. “Therefore, when I’m voting on something I have no personal interest in that particular property. After a certificate of occupancy is issued if I choose to purchase just like anybody else - I would have that same right. So I just wanted to clarify it would be a ‘Ros Brezin’ as well a ‘Danny ordinance’ and I’m all in favor of it…because it’s the fair thing to do.”

Vice Mayor Lewis Thaler reiterated, “It really affects every [commissioner] here. It’s not just Danny [Iglesias]. We all have to live under this ethics law. Every one of us has an option and ability to buy apartments in this city almost every day; and as far as I know, not one of us other than Danny has. And when he did - it was perfectly legal to do it…This [amendment passed in July 2004] just tightens some of the laws the [Miami-Dade] Ethics Commission had on the books.”

During the workshop, Mayor Norman Edelcup commented, “[By prohibiting Commission members from purchasing [property] in Sunny Isles Beach before the certificate of occupancy is issued] we’re only carving out a special circumstance where we know it affected [the city].

“We felt because we’re in an area where there is continuous development going on… we’re in a position today where we’d like to believe that the voters are sending five active commissioners to the dais every time to work on a zoning approval. If one of us or all of us make investments in those same projects, the voters won’t have any representation and that’s why we carved out this specific thing.

“We’re losing sight of the fact that we already have a very broad [ethics code stating] if there is a substantial conflict of interest, [a commissioner can be brought] before the [Miami-Dade] Ethics Commission.”

Commissioner Gerry Goodman added, “Being elected by the people, we’ve got to answer to the people. If anyone wants to challenge me they have a right to bring me before the Ethics Commission of Dade.”

Edelcup later said, “To start putting words [into the code] that we can’t define and getting very specific I think [makes the law] unmanageable and also [could deter qualified] people [from running for] the Commission.”

Thaler concurred, stating, “The biggest problem I see [with Danny Iglesias’ proposed ethics ordinance] is that there is nothing definitive that you can put your finger on…the law we have on the books right now is definitive and speaks to a point… I think [Iglesias’ proposed ordinance is] very vague…I [also] think many people we could possibly attract to run for the Commission would stay away [if Iglesias’ proposed ordinance was adopted].”

What is ‘Reasonable’?
Referencing the portion of Iglesias’ proposed ordinance mandating, “No current city officer or employee shall engage in any transaction or activity which would appear to a reasonable person to be in conflict or incompatible with the proper discharge of their official duties,” Brezin said, “The thing that disturbs me the most is [defining] reasonable person. Who is to determine who is a reasonable person? What’s reasonable to me may not be reasonable to you.”

What is ‘Substantial’?
Edelcup pointed out, “You don’t want to have the most restrictive [ethics ordinance] because the most restrictive doesn’t leave room for [the question]: Was there a substantial interest in the transaction that should disqualify the person? If that person doesn’t have a substantial interest in the outcome then there is no conflict.

“If I’m voting on an issue for a building to be built in Sunny Isles Beach and a developer has money in my bank, the outcome of my decision isn’t going to affect whether he has money in that bank because he can take it out any time he wants. But if I promised him that if he puts money in my bank that I would vote in favor of his project - then I’ve committed a violation of the ethics law…That’s why we have words in the current ethics law that provide for that.

“Again - it goes back to substantial. If [a developer] comes in and puts $50 million in my bank that may be substantial and maybe I should disqualify myself. But if he puts $10 in my bank it’s not substantial…It has to always be interpreted. We can’t write a law that has every interpretation in there and that’s why we have a [Miami-Dade] Commission on Ethics - to be able to interpret for us and they need to have some guidelines; and I hope by attending this [March 22 workshop] they’re getting a feel for what our guidelines are.”

To Be Continued?
“We’re not taking a vote here tonight but I’d like to see a consensus as to if we need to have any more [discussion] on this…just indicate whether or not we think [the current ethics ordinance is] OK the way it is or whether we want it changed,” Edelcup said as the workshop neared conclusion.

Ultimately, with the exception of Iglesias, the rest of the Commission stated they felt the code of ethics amended in July 2004 should be left as is. Subsequently, Iglesias said, “From here on, what I’ll do is get an opinion from the Miami-Dade Commission on Ethics and Public Trust more precisely on [the terms] substantial and appearance. “I would like the Ethics Commission to [provide further] interpretation.”

2. ‘TOWN CENTER DECISION’

At a March 22 City Commission meeting, the first development planned for the Town Center Town district of Sunny Isles Beach received site plan approval contingent upon the developer’s intent to comply with certain conditions. .

Referencing the area encompassing the west side of Collins Avenue from 172nd Street to and inclusive of Sunny Isles Boulevard, attorney Cliff Schulman, representing developer Joseph Milton noted, “The Town Center vision is now becoming a reality…this is the first project in one of the more difficult areas of the Town Center district…[the mixed-use development will be] located on the south side of Sunny Isles Boulevard (150260) and it is approximately a three-acre piece of property.

“The project before you tonight for site plan approval consists of three buildings (one 19-story building and two 20-story buildings) with 283 residential units – all within the height limitation [set by the City]…there is no variance being sought concerning height.

“As you know, [the parcel] is unique [in that it is] only about a 200 foot wide piece of property…the depth is narrow so it was a challenge to [develop]…This Commission did not want just another ‘run of the mill’ residential project -they envisioned people integrating into the streetscape to create a new mixed use type of [development] for the Town Center…In order to make that reality take place, Kobi Karp was [the innovative architect retained].”

Taking the podium, Karp explained, “We’ve been working on this project since October of last year…[city] staff provided a substantial amount of [input]. There is pedestrian accessibility; we have plazas and fountains and we’ve provided night lighting [to promote] public activity and interaction.”

After describing aesthetically pleasing landscape plans and desirable amenities, Karp said, “This [development] will really bring life to this currently very derelict area. I think it’s going to anchor the urban fabric of the point of arrival into the city.”

Issuing his report, the city’s zoning director Jorge Vera reiterated, “This is the first development [along the south side of] Sunny Isles Boulevard coming before the Commission for the Town Center zone… Overall, it works well with the Town Center [concept]. Staff feels [the site plan] should be approved.”

Referencing the conveyance of TDR’s (transfers of development rights) from the city, Vera added, “The applicant will be purchasing a total of 65 units resulting in 112,905 square feet.”

Thinking Outside the Box
Schulman noted a variance was being requested to setback the penthouse portion of the condo towers. He explained the shallow lot inspired the concept to create a distinctive grouping of triangular shaped buildings rather than a typical “square box” shape.

In response to concerns expressed by Commissioner Brezin that granting the variance might set a precedent, Schulman said, “We’re asking for a variance but I don’t think we’re setting a precedent because we have a solution that’s unique…Plus, we’ve separated the buildings more than the code allows - we were required to have a minimum of 50 feet and we now have approximately seventy to seventy-five feet…We have a wider view corridor between the buildings to create more airiness…We did this by making the unique triangular design for the buildings and tried to do something other than the ordinary.”

Developer Joseph Milton added, “The unit count doesn’t change whether [the Commission grants the variance for the] setback or not…[If the variance is granted] and you’re driving by, you’ll have a lot of relief from the street-side and curbside with the building [appearing further] away from you…I could have gone straight by the code and built you a square block…it would have been 200 feet wide and it would have felt like it was ‘in your face.’”

Expressing his opinion, Commissioner Danny Iglesias said, “I think this is a beautiful design and I think you’ve thought ‘outside the box.’”

Deciding Factors
Before a vote was taken, a debate arose over whether or not the Commission’s approval of the site plan should be deferred due to unresolved issues regarding TDR’s (transfers of development rights) including the absence of an appraisal and a ten-percent deposit price from the developer for the desired TDR’s..

After considering extenuating circumstances including a previous deferral due to an advertising glitch; mis-communications between the applicant and staff; and time constraints, the Commission decided to proceed with granting site plan approval (with Vice Mayor Lewis Thaler dissenting) based on the developer’s agreement to satisfy conditions relating to TDR’s, presentation of the property’s color palette and verification of adequate handicap parking.

“I [want] to make it clear that [excusing the developer from [complying with the city’s TDR ordinance requirements] is not to be taken as an interpretation by any applicants in the future that they can do the same,” Edelcup said. “We’ll have the [TDR] appraisal at our next meeting on April 14 [so we can] set that date to finalize the TDR transfer.”

3. ‘EMINENT DOMAIN DECISION’

The decision is in – and the City Commission is pleased per ruling of a Miami-Dade County Circuit Court Judge, Sunny Isles Beach can now acquire an acre of property located on the north side of the Government Center building through eminent domain proceedings. Judge Margarita Esquiroz ruled property owner RK Associates must sell the land located at 18080 Collins Avenue to the city for $2.5 million.

The property is currently the site of Alamo and National car rental agencies belonging to RK Associates owned by Raanan Katz. According to Sunny Isles Beach City Attorney Lynn Dannheisser, the city intends to utilize the land as a centralized place for storage of buses and city vehicles utilized by the Public Works Department.

‘Persistence Pays’
The old saying, “If at first you don’t succeed, try, try again,” could describe diligent attempts made over the past two years by the City of Sunny Isles Beach to purchase the one-acre property at 18080 Collins Avenue.

After the city did not receive a response from Katz regarding an offer for the property within a 90 day specified timeframe, the Commission decided to proceed with plans to acquire the property via condemnation and begin eminent domain proceedings. Eminent domain entails a court making a determination regarding a purchase price the city will pay for taking properties through condemnation.

Prior to pursuing the condemnation option, the city was considering an agreement calling for Katz to donate the property to the city, thus enabling him to receive millions by subsequently selling applicable transfers of development rights (TDR’s). In essence, Katz could sell the development rights attached to his property on the west side of Collins to an entity owning property elsewhere in the city such as the east side of Collins where oceanfront land is substantially more valuable (upon approval of the City Commission).

The city originally tried to buy the land - but the former owner of the property, Mitsubishi Motors, did not want to sell at the time. Subsequently, eminent domain proceedings initiated by the city stalled when Mitsubishi sold to Katz. According to a Miami Herald article, “R.K. paid $1.9 million for the land, approximately $300,000 more than its appraised value [at the time].”

The offer of a selling price to Katz was made based on an appraisal of over $2 million, reflecting “astonishing” land value growth in Sunny Isles Beach. Subsequently, Katz turned down the city’s offer.

During a Commission meeting in June of last year, Arnold Shevlin spoke on behalf of RK Associates, noting, “In all the discussions and depositions taken, the city has testified if the property was taken, the city would retain the TDR’s - and the TDR’s would eventually be sold. So [the attorney representing the city] is telling you the TDR’s don’t have any value, but yet, in the event the property was taken by the city - the city would be selling the TDR’s at fair market value…So there is a little ‘unfair proceeding’ going on in terms of the value of our property.”

According to attorneys representing the city, “There is no support for an appraisal valuing property based on the value of TDR’s. The standard language of the courts is the availability for purchase of TDR’s is too speculative for appraisals to rely on.”

Following the judge’s decision in favor of Sunny Isles Beach, in keeping with the rules of a quick take, the city will immediately take possession of the deed to the property.

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