Bal Harbour Blindsided by Shops Plan

The owners of Bal Harbour Shops submitted plans last month for a mixed-use development under the state’s Live Local Act, sending the village into a scramble.

Whitman Family Development, which owns the luxury shopping mall, wants to build a 70-room hotel, 528 residential units and an additional 46,000 square feet of retail space on the 18-acre property. The company’s letter of intent states that at least 40% of units will be “attainable workforce housing,” while the other 60% will be luxury market-rate housing.

The plan would include four towers of up to 27 stories on a property that has long been restricted to just five stories in height.

Elected officials say the plans were sprung on them without warning, effectively leaving them in the dark, along with residents. The Live Local Act allows developers who agree to the 40% affordability component to usurp local density regulations, and also preempts public hearings by requiring only administrative approval for such plans.

The law, passed early last year, has put home rule under threat in municipalities across the corridor and beyond, as we reported last month.

Now, residents and planners alike are seeing just how tricky things can get under Live Local. Already, Whitman Family Development has filed suit against Bal Harbour Village for attempting to derail its project, while the larger community surrounding the village struggles to understand the repercussions of the Shops’ plans if approval becomes inevitable.

Lawsuit Pending

Councilmembers used the majority of the Jan. 16, 2024, meeting to discuss the newly proposed plan, its legality and what could be done to stop it. The council unanimously approved a resolution authorizing village expenses to hire or replace lobbyists as needed and work with a legal team to tackle the issue head-on. It also discussed imposing a moratorium on developments within the business district to stall the approval process in the meantime.

“It is my responsibility as mayor and ours as a village council to protect the interests of the citizenry of Bal Harbour Village,” said Mayor Jeffrey Freimark. “We will do so.”

Freimark alluded to the likelihood that the issue would end up in court, but before village staff could even devise a legal path forward, Whitman Family Development beat them to it.

The firm filed a lawsuit against the village on Jan. 23, just one week after the council took its vote on the issue. The complaint accuses Bal Harbour Village of violating the Live Local Act by “promis(ing) its residents a moratorium” instead of processing the application according to the law.

Village manager George Gonzalez – who as of the day following the filing of the suit said he had not yet read the complaint – told the Biscayne Times that his staff had simply been reviewing the proposal and determining whether Live Local applies. He noted that the proposal is far less extensive than what he would normally be presented with.

“For example, a traffic analysis, a concurrency analysis – things like that that would be the norm in any large development – are not part of their proposal,” said Gonzalez. “So we’re reviewing their proposal because in our minds we have not yet determined that it is a complete application.”

Although Whitman Family Development did not respond to this publication for comment, a letter sent to the village by managing partner Matthew Whitman Lazenby two days before the January council meeting notes the company’s position that the plan is in full accordance with the law.

“We note there have been numerous statements by the Village to various media outlets that point to a ‘case and controversy’ concerning the sufficiency of the plans we have submitted for immediate processing and approval,” reads the letter. “While we see these as differences of opinion on this still new legislation, we have spent considerable time, effort, and resources preparing an application fully compliant with all applicable law.”

Whitman Lazenby then threatened legal action if such statements continue or are not withdrawn. Clearly, he wasn’t bluffing.

Prior Engagements

A particular point of contention is whether the plan violates a development agreement between the village and Whitman Family Development for the Shops’ $550-million expansion plan, currently underway, to add 241,600 square feet of retail space. It was a plan agreed to before the Live Local Act provided a new avenue for the company to acquire the additional height increase allowances it has long sought.

Three years ago, the Shops proposed that a 2006 referendum limiting commercial buildings to five stories be overturned. Nearly 90% of voters turned that proposal down during a 2021 special election. It’s part of the reason why opponents are skeptical of the developer’s motives.

The letter of intent states that the residential towers will house employees of Bal Harbour Shops, which would total more than 2,000 by the time the plan is complete. The workforce units would “serve occupants with household incomes equal to or less than 120% of area median income (AMI), which equates to $90,000 annually in Miami-Dade County.”

Others, however, doubt the sincerity of this. Councilmember Buzzy Sklar said the plan is just a runaround to get the additional height the Shops owners have always wanted. Some residents worry they’ll find a loophole to sell off their development rights, while others fear they’ll get grandfathered in by the Live Local Act and eventually be able to build whatever they want, never mind the affordable housing requirements.

Also hung up on trying to figure out Whitman Family Development’s motives are those representing Saks Fifth Avenue, which is removed from Bal Harbour Shops altogether within the new plan. Darrell Payne, an attorney with law firm Stearns Weaver Miller, said at the January council meeting that Saks Fifth Avenue is three years into litigation with the Shops over a lease issue. Payne said his team couldn’t quite figure out why the Shops would want to terminate the lease, but now they have.

At the very least, the issue will be one more hurdle for the developer to overcome.

“Saks is confident that it will totally prevail in the litigation and intends to remain in the location in Bal Harbour for many years to come,” said Payne.

A Larger Community

Add surrounding neighbors and politicians to the list of players against the proposed project, and you’ve got a village up in arms. Surfside Mayor Shlomo Danzinger attended the Bal Harbour meeting in January to express his own opposition to the project. His town’s limits begin across the street from the Shops, inevitably interlinking the municipality with any unintended consequences.

Danzinger was particularly concerned about the Live Local Act’s effects on small barrier islands such as his own and Bal Harbour Village, which he says can’t handle large-density projects or traffic, especially in the case of an emergency requiring evacuation onto the mainland.

In a newsletter sent out just two days prior to the meeting, Danzinger promised residents he would push for a lawsuit against the Shops if the proposal moves forward, as well as to secure Surfside’s perimeter to prevent the development’s traffic from spilling into the town’s borders. He also alluded to Bal Harbour Village’s ability to spur the development away by imposing significant impact fees.

The folks over at Bay Harbor Island, sandwiched in between Bal Harbour Village and the mainland, are equally concerned. Councilperson Teri D’Amico has been raking away at the Live Local text and the Shops’ plan to better understand what’s coming, and all she’s left with are more questions.

For instance, she wonders, who will pay for the costs associated with connecting the new units to water and sewage lines, which run across her own town as well? Who will oversee that the development adheres to building codes or that the affordability requirements are strictly enforced? Who’s going to make sure large-scale construction doesn’t compromise the integrity of the property, resulting in a collapse similar to that of Champlain Towers South in Surfside less than three years ago?

“No one is taking the responsibility with this Live Local Act,” said D’Amico, speaking as a concerned resident. “It’s literally lawless.”

D’Amico told us she had plans to travel to Tallahassee at the end of January to speak with the Florida Legislature about how the Live Local Act can be managed by local building departments, especially small ones like those within the barrier islands.

“I think that our community should demand answers right now from the state,” she said.