Serve and Protect
Commission denies Publix appeal to serve public interest and protect Comprehensive Plan
By Bari Auerbach

“We’re trying to protect what we presently have and the quality of life in Sunny Isles Beach...there has to be a limit when you have to say ‘no’ to a developer,” said Mayor Norman S. Edelcup just before the City Commission voted to deny an appeal filed by Publix Supermarkets, Inc. The appeal related to several administrative decisions made by city staff regarding proposed re-development of the existing Publix site at 18320 Collins Avenue that could include condos, a marina, a modern new Publix and a roadway linking portions of North Bay Road.

Issues pertaining to fraud allegedly perpetrated by the developer and decision making jurisdiction were discussed at a June 21 special Commission meeting – but a main focus was whether the Sunny Isles Beach city code allows submerged land abutting the Publix property to be included for purposes of calculations for residential density. Based on a purchase of submerged land, Publix sought approval from the city to add 94 condo units to the 284 originally proposed.

According to Mayor Edelcup, the city’s submerged land ordinance was originally drafted to protect property owners. “What we’re talking about is if platted land eroded it would still be considered part and parcel of above-ground land.”

The Mayor also explained it was necessary to determine whether Publix perpetrated “a fraud on the city” by claiming that it owned 17.13 acres for development purposes in a site plan filed with the city - while claiming that it owned 5.41 acres for development purposes in a site plan filed with the county’s Shoreline Development Review Committee for the same project.

Ray Abadin, an attorney for the city, contended, “This inconsistent application process filed by Publix clearly shows an attempt to hide the true nature of its plans which is to build a much bigger structure on 3.57 acres and to prevent you, your staff and attorney from making an informed decision... Your code doesn’t permit such conduct and you shouldn’t allow it.”

“The burden is on Publix to demonstrate that its conduct and the representations were truthful,” Edelcup said. “If Publix fails to meet its burden the City Commission will find that Publix has violated section 33-6 of the city code which requires truthful disclosures in zoning matters.

“[Another] issue is whether the city has jurisdiction [over the] Publix zoning application at this time [as opposed to the county's Shoreline Committee.]”

The Mayor later noted, “The submerged land issue is the main crux of why we’re all here today. Going back two years, we talked about new [development on the existing Publix site] and we were very interested in having a roadway through the property so we provided for a height adjustment.

“Unfortunately, to our chagrin, Publix decided greed was a better approach so after the first meeting they went out and bought submerged land that wasn’t there the first time around. This Commission indicated it had passed an ordinance and the intent was any submerged land that eroded from a piece of platted land would be credited to the person who owned that land. It was never the intent of this Commission to encompass [non-platted] submerged land [for purposes of density calculations].”

Publix is currently suing Sunny Isles Beach over interpretation of the submerged land ordinance adopted in 2004. The city maintains Publix misconstrued its intent and subsequently voted to amend the ordinance, citing the need for “clarification.”

“[The city] never changed the zoning [code],” Mayor Edelcup said. “It was a question of interpretation…[This] is the basis of the [law] suit…and the court in the future will decide that issue…It’s clear this Commission won’t grant density where there is no density and give greed an opportunity to flourish.

“If Publix is a good corporate citizen, they should follow the laws and ordinances of our city. To compound this and make it as confusing as possible, the applicant has filed applications with the city that differ from what was filed with the Shoreline Committee…Whether that was intentional or not remains to be seen.

“[There was] overwhelming support [from the Commission] to move forward with [development on] 3.57 acres upland with no submerged land - but the developers have chosen to see if they can get more. The one main issue we have to remember is - it’s about trying to take submerged un-platted land in Dumfounding Bay and use that land for density [when the city maintains] submerged lands should not be counted.

“There has [also] been an attempt to perhaps fraudulently confuse this Commission and the Shoreline Committee - which takes precedence before this Commission can [vote on] a site plan - so we would be not following the law by issuing our opinion before Shoreline Committee [consideration].

“Taking all this into account, [the Sunny Isles Beach City Commission] has no other choice but to support the opinion of staff on all issues…We know this case will continue on. It’s apparent Publix will attempt to defy the will of the city and people who don’t want to see its Comprehensive Plan increase in density. There has to be a limit when you have to say no to a developer.

“There is a citizen here already willing to mount a campaign against Publix [George “Bud” Scholl] and certainly I would be remiss if I didn’t join in that campaign as a private citizen trying to protect what we presently have and the quality of life in Sunny Isles Beach.”

Presenting a rebuttal, attorney Cliff Schulman representing Publix noted, “I sent a letter to the city manager appealing an [administrative] decision and under your code it says the appeal is to go to the city manager who makes a decision as to whether or not we have a good appeal. Instead, I got a letter from the city attorney...The appeal should have been properly brought before [the Commission] on issues that are totally different than what were discussed by [the attorney representing the city] today.”

Regarding alleged fraud, Schulman said, “I have appeared before [the Sunny Isles Beach City Commission] for the better part of ten years and this is the first time in my career of 33 years that anyone has accused me of fraud or unethical behavior.

”You can’t reject this appeal on alleged fraud because no fraud was made to this city…We said we were the owner of 17.16 acres of land - portions which were submerged and portions which were not. We told you we wanted to build 378 units and a 42,000 square foot Publix. We told you we wanted an FAR of 4.0. We gave you a deed and a title policy – [and] we gave the same deed and title policy to the county…We did not misrepresent anything to the city.

“We presented to the county a plan for the upland development that did not include a marina because we had not filed an application to the Dade County Commission as of yet - they are the ones who approve marinas in this county and we weren’t ready for that.

“What we gave to [the city] was the entire land we own - what we gave to the county was the upland and that amount of the submerged land needed to maintain our FAR. We said to the county, ‘We own 5.17 acres of submerged and upland.’ We [actually] own more than that - 17 acres - but what we told the county was the truth - we own that amount of land…We knew we would have to go back to Shoreline at a later date before we could ever build a marina.

“We were not asking Shoreline to approve the marina - but when they asked us to show how much submerged land we owned we gave them the same deed we gave [the city] for the 17 acres of land both submerged and upland.”

Just before the Commission voted to deny the Publix appeal, Sunny Isles Beach city attorney Hans Ottinot noted, “Mr. Schulman is asking the Commission to violate your own code...They provided us with a deed [but] failed to provide the city and county with a survey…We need a survey to determine the boundaries of the property and amount of submerged land they are referring to that they own…Our [city] code never permitted this conduct - that you can go out and buy land under water that is not within a platted land and use it for density.”

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