Bal Harbour gives final approval to rules that could hamper Whitman’s Live Local Act project

Bal Harbour gave final approval to development regulations that could foil Whitman Family Development’s proposed Live Local Act project. 

Village council members unanimously passed the ordinances last week, after they preliminarily approved the regulations last month. 

The vote marks the latest in the heated battle between the village and Whitman Family Development, which wants to expand its luxury Bal Harbour Shops under the Live Local Act. The law, first passed by the Florida Legislature last year and amended at this year’s session, allows developers to build taller buildings with more units than allowed by municipalities, in exchange for designating at least 40 percent of rentals for households earning no more than 120 percent of the area median income for 30 years. The legislation is an attempt to alleviate the state’s housing crisis, which has hit South Florida especially hard over the past three years and left many priced out of skyrocketing apartment rents. 

Whitman’s project would consist of up to 275-foot tall towers with 528 apartments, a 70-key hotel, 46,000 square feet of retail and a private 200-member club at its shopping center on the northwest corner of Collins Avenue and 96th Street. The maximum allowed height on the site now is 56 feet, with some exceptions allowing up to 69 feet, village records show. 

The development firm is led by Matthew Whitman Lazenby.  

Whitman Family Development has opposed the new ordinances, with its attorney, John Shubin, calling them “pure retaliation” in a letter last week to the village. The attorney also asked the village to exempt Whitman’s Live Local Act project and a separate, already approved expansion of Bal Harbour Shops from the regulations. The village shot down the request, with no council member stepping forward to amend the ordinances. 

In a Feb. 19 letter to the village, Shubin called a new noise ordinance a “thinly veiled attempt” to disrupt ongoing construction at Bal Harbour Shops. Other ordinances deal with parking and setback requirements, and also lower the allowable floor area ratio, or FAR, which is generally a measurement of a structure’s massing, from 2.8 to 1.3. Although developers can get bonus FAR if they work with the village to design buildings more compatible with surrounding properties, the incentives are capped to a maximum FAR of 2.8. 

In one of the biggest changes, the village imposed a “poor door” ban, which prohibits separate entrances, exits, stairs, elevators and amenities for renters in the market-rate and affordable apartments. The ordinance mandates that both unit types are mixed in the same buildings, instead of having separate affordable and market-rate buildings. 

Bal Harbour Village Manager Jorge Gonzalez said project plans show “segregation” of the affordable housing renters from the amenities and entrances for the market-rate apartment renters. But Shubin said in his Feb. 19 letter that the Skidmore, Owings & Merrill-designed project would have “one entrance for all.”

The dispute has touched off accusations of classism, and even insinuations of racism, playing out in correspondence and public statements by each side. 

Bal Harbour officials have maintained they aren’t against affordable housing. Mayor Jeffrey Freimark said in a statement that the village is obligated to ensure the project “is not done in a prejudicial manner and treats residents in affordable housing fairly and with dignity and with respect.” 

Shubin shot back that Freimark merely wants to safeguard Bal Harbour’s “affluence and exclusivity,” the attorney said. The ordinances are a “pretextual attempt to prohibit affordable housing,” Shubin wrote in his Feb. 19 letter to the village. Because Bal Harbour Shops is the only village site where a Live Local Act project is allowed, the new rules “will have their intended effect of further insulating the exclusive village and making it less likely that racial minorities will have the opportunity to live in the village,” he added in his letter last week. 

“They have not been subtle in how they accuse us of classism,” Gonzalez, the village manager, said at last week’s meeting, adding that some accusations insinuate “racism.” These claims are “nothing but false,” he said, again pointing out the project itself would separate households of different incomes. 

In his letter last week, Shubin stepped up his legal arguments against the ordinances. The Bert J. Harris Act, a Florida law that protects private property owners’ rights, allows for legal claims against a municipality such as Bal Harbour that adopts ordinances that “inordinately burdens an existing use of real property or a vested right to a specific use of real property,” Shubin wrote. 

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The village also is exposed to liability under the federal Fair Housing Act, which bans municipalities from adopting ordinances that treat affordable housing less favorably than market-rate projects and have a “discriminatory impact on members of a protected class (including race and national origin),” Shubin wrote. The ordinances also violate the Live Local Act itself by creating “an entirely new and different set of development standards and processes exclusively applicable” to the act, he added.  

After the firestorm following Whitman’s January project application, Whitman sued Bal Harbour alleging the village “promised 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 filed by Bal Harbour, the village argues the developer has made no claims that the salespeople and waiters at Bal Harbour Shops “could afford to live in the ‘affordable housing.’” Village staff members have said Whitman’s application is “incomplete.”