News: It’s All About the Towing

Miami Beach Commission Meeting

By Anne Newport Royall

“It’s only ten o’clock, can we start?” said Mayor Matti Herrea Bower, banging the gavel for emphasis.  Considering the meeting was called for an hour ago, the time seemed right to begin the monthly Miami Beach City Commission meeting.

Claire Tomlin’s Market Company Farmers and Greene Market brightened the rainy Wednesday at City Hall. A new mid-week addition to the usually weekends-only happening, the market features flowers, food, fruits and spiritual items for sale on the first and third floors on Commission Days.

Inside the Chamber, the commissioners noshed on bagels and lox while the proclamations and other morning announcements were going on.

Commissioner Jorge Exposito lead off with the “Officer of the Month” recognitions, but it was Commissioner Ed Tobin, who has recently quit the practice of law to join the Police Academy, stealing the show.   After praise was heaped on the deserving officers, He addressed the “White Elephant” in the room, the recent disciplinary action, demotions and firing of several police officers.  “Only a small minority of our police department” are bad Tobin started, “I know them, I have friends in the Department.  We read in the paper many salacious things, and that sells papers.  But our Police Department is like a football team, except when they loose, they die.”

TOWING WARS SAGA CONTINUES PART ONE

Attorney David Nevel was in the house to see about an ordinance to stop appeals to administrative decisions, specifically by the Planning Department from stopping all progress on development from moving forward through the process while the appeal is pending.

“This ordinance conforms our laws and practices with what is happening in the State of Florida.” Jose Smith, City Attorney explained. Currently, if a new development needs to go to one of the land use boards, all hearings stop if someone files a protest in the form of an appeal to the Zoning Board of Adjustment.  This new ordinance will allow a matter to move forward at other land use boards, while the final appeal is waiting for ZBA.

Nevel, representing Russell Galbut and Tremont Towing, is keenly interested in this code fix because his client’s plans to convert the old Windjammer property at 1745 Bay Road in Sunset Harbor into a restaurant and robotic parking has been in land use limbo practically since the day the Galbuts’ and the Menins’ went into partnership with the Mermelli’s and Tremont Towing.  Beach Towing, represented by Kent Harrison Robbins and Randy Hilliard have fought the redevelopment project on any grounds available, including chiding the City on the notice requirements for signage about potential land use hearings being posted 30 days in advance on the property in question.

This type of endless litigation has held up the development of that property for over a year. Galbut has threatened to sue the City for their part in the whole mess.  Specifically allowing Robbins actions to impede their development rights.

The current proposed ordinance would affect this current bru-ha-ha and set things as right as they can be at this point.  That raised some issues, especially with the attorneys on the Commission who said they never heard of things like this applying to current cases: their experience is that this would be applicable for future cases only.

“You can make the language anyway you want” Smith assured the Commission

“I want to make sure everyone watching knows where this came from.  It’s from the Tow Truck Wars,” Commissioner Tobin offered, explaining how, without naming names, advantage was gained from one tow company over the other with the use of the appeal tactic to gum up the works that defacto granted one company a monopoly over the City’s towing contract.

“You all know how I feel. I think the City should take the towing and make the 4 or 5 million dollars a year.  People should be allowed to be at least heard in front of the board and this ordinance fixes a glitch in our code” Tobin concluded.

Robbins, after introducing himself and providing his bona fides to address this proposed ordinance spoke gravely to the Commission that “this is a matter of great public concern.  The Board of Adjustment is a charted board.  To modify it, or the procedures that happen there should require a vote of the public,” he argued.  “The charter provides that the Board has a right to review appeals of administrative matters.  This is to ensure that the Planning Department does not overstep it reach.”

Robbins continued,  “For the past two decades, when a resident challenges a decision of the planning director, they have the right to be heard at the Board.  Currently all actions regarding that decision are stayed’” meaning that the project can not go before another land use board or receive a building permit until the Zoning Board rules on the appeal.

He offered this example. “ Lets say you have a single family home and the neighbor decides to allow a film shoot next door. When the filming goes on for days or months, the resident could argue, that even though the neighbor might have received a film permit, the resident believes that the weeks or months of filming and the trash and the noise and the lights, constitutes a commercial use of the property in a residential district.  The resident goes to the planning director with his argument, and the planning director says, “No, it’s not commercial” and the filming goes on.  The neighbor can then appeal that decision to the ZBA and that filming would stop while the appeal was heard.”

Putting a resident in harms way perked up the ears of the Mayor. Bower asked a question about the filming scenario, causing the Interim Planning Director Richard Lorber to jump into the fray, stating that example is not applicable because film permits are not granted by land use boards or the Planning or Building department and so they remain untouched by this ordinance, which only deals with development applications.

When his first diversionary tactic failed, Robbins leapt off on another tangent and asked a question about what version of the ordinance they were dealing with, as a new version was handed out at the meeting.  Gary Held, City Attorney on land use issues objected, stating that the changes proposed today were a direct result of discussions that the legal department had with Mr. Robin’s associates, so for “you to be objecting now is just wrong.”

Robbins, not one to give up without a fight held the podium firm, coming up with more examples of problems with the ordinance and enforcement.

The Mayor asked more and more questions about process and procedure.  “What happens if this goes all the way to The Supreme Court?” she asked

‘That’s where this is headed!” crowed Robbins, “All the way to the Supreme Court in 2012!”

When Commissioner Weithorn brought up some of the issues with an appeal process, Robbins agreed that a resident who was trying to fight an “illegal zoning decision” is put in the position of fighting the decision not only at ZBA “but at HPB, Planning or DRB, wherever it goes while the decision is awaiting a decision of the appeal”

David Nevel said he was interested in due process, making sure that projects in question or under the cloud of appeals get their due with this fix:  projects can move forward yet the appeal may win on its merits or not.

Commissioner Wolfson wanted the process of the new ordinance stopped because he felt that the change between first and second reading, including making the ordinance apply to current projects in the pipeline and not just future scenarios changed the intent enough to require a second second reading.  He was concerned that residents who want to fight a project will have that ability diluted because the process moves forward under this change.

“How will this have an impact on the residents?” The Mayor asked again.  “I see lawyers filing these appeals.  How would a resident know about an appeal?

“This process is available to any resident now” countered Wolfson. “This (new ordinance) speeds up the development” process, that any resident may be against.

When asked directly by the Mayor if Wolfson would vote for this ordinance if it were to only apply to future issues, he countered that the proposal “its like someone calling a timeout in a game and changing the rules.  I will never support this.”

The Mayor interjected with a random act of exercise, asking everyone in the house to stand up and shake out his or her arms and release the tension that had built over the course of the discussion. There was to be no resolution anytime soon. There were many more controversial issues on the table for the day, including rejecting bids that move the Venetian Island Homeowners projects forward and settling a decades-long lawsuit filed against the City over the Par 3 Golf Course. A time out was needed.

The discussion on the appeal ordinance was tabled to give the attorneys for the City, Beach Towing and Tremont Towing a time to make a new deal.

The Commission moved on to the issue of the closing the Publix store on 69th Street. Although in the works for over four years, the closing of the store earlier this month came as a shock to the system of the residents of North Beach.  Traveling to the new Surfside Store on 96 street has proven a challenge to many, who in turn reached out to complain to the Commissioners. Many calls and emails were made and sent.  The Town of Surfside has offered to extend its shuttle service, to the former Publix site to enlarge a circulating trip that currently includes the North Shore Library in Miami Beach and the Surfside Publix.  It would be a matter of adding another stop and extending the hours a bit for the next year of construction.  It was a simple and elegant and very special move to provide outstanding service to the residents.  Yet, the Commission never expressed any interest in paying for it.

Surfside is asking for a $10,000.00 a year payment to extend the route.  The Commission expected to get that money from Publix.

While representatives of Publix and their development consultant Stiles came before the Commission, they did not come with a checkbook.  While the Mayor did her best to ask, all the green-shirted District Manager could offer was news that none of the employees at the shuttered store had lost their job and that they have extended valet parking at the Surfside store. Having been just made aware of the issue in the last seven days, they were not in a position to commit to the cash for a new bus route.  The Mayor even tried to get a three-month pilot program started. Stiles demurred, pointing to the availability of better transit available now, the several County bus routes that operate along that Collins Avenue corridor with seven-minute headways.

TOWING WARS SAGA CONTINUES PART TWO

The Mayor, effortlessly navigating the agenda on her IPAD, called for next regular items in short order.  One by one, items were read into the record by City Clerk, Robert Parcher and voted on with little or no discussion.  Allow more standing-seam metal roofs in the City.  Check.  Allow people to have their dogs off-leash more in public parks. Check.  Reduce some parking requirements in some affordable housing projects by half a car.  Check.

Then Gary Held came back in the door and signaled to his boss, City Attorney Jose Smith.  The shuttle diplomacy between the left and right door, between attorneys and owners of properties and businesses involved (and there are only two) on this side or that, with City attorneys, planning staff and representatives of the Manager’s office all trying to craft a deal. Negotiations had gone on for the better part of an hour.

Assistant City Manager Jorge Gomez hands out a new ordinance.  New language that addressed Commissioner Weithorn’s concern about notice of the appeals process to the affected residents and other housekeeping items that were modified.

City Manager Jorge Gonzalez tried to put it all in a nutshell naming names. He began to explain that currently, if someone, anyone could have an issue with an administrative ruling of the planning department all progress in front of other land use boards stops if they file an appeal to that decision with the Zoning Board of Adjustment.  If this ordinance passes, while that appeal is pending, the project can move through other land use boards, with the final order subject to the resolution of the pending ZBA appeal.

What he left off was that this is a subtle change in the ordinance meant to address and redress the issue over the Windjammer property, that fuels the Towing Wars.

Last year, Russell Galbut took control over the beautiful, two story streamline office building and attached warehouse, once home to the famed now defunct big-sail Windjammer Cruise Lines.  Long before that though, the robotic parking garage bug had bitten him.  Galbut and his legal team, but always Galbut himself, had been working for years to first, change the land development regulations of the City to allow robotic parking structures and then to build them for his own.

He likes robotic parking systems so much, in fact, he is planning to build his new home South of Fifth around one, with a large, picture window in his home office to watch the cars whirl around  in the air on the shuttles that carry them to their cubby space. His first, signature  robotic project is  across from the Shelborne on Collins Avenue, and will be featured in an upcoming issue of Architectural Digest.

A quirk in the robotic parking ordinance says that when you build a robotic parking garage as an accessory use to a main structure, you cannot use the spaces you create to meet the parking requirements of the building the garage is for.  So if Galbut wanted to put a restaurant in his Windjammer space, and a 100 car robotic parking garage in his warehouse he would have to find 50 parking spaces somewhere else to meet the parking requirement for his 100 seat restaurant.

The only thing left to do with the parking garage is to park other cars in it.  Cars not coming to the restaurant.  Galbut’s space was a perfect fit for a towing company looking for space to store cars.

A beautiful partnership was formed with Tremont Towing, desperate to keep its ability to hold one of two City contracts to tow cars.  The contract was dependant at the time of being able to store 100 cars on Miami Beach.  That has since been reduced in a previous installment of Towing Wars. Tremont had sold their base of operations to Scott Robbins, so he could build a parking garage for the City to park Property Management vehicles in a deal to expand Flamingo Park by an acre.

Once Galbut bought into the property, Galbut went to the Zoning Director and asked if his plans would be an okay thing to do.  Everything he was asking to do with the property was by right.  He was complying with all of the zoning, use and impact requirements for the I-1 district.  The Zoning Director sent him to Design Review Board.

Galbut engaged his architect of choice, Add Inc’s Jon Cardello and designed a cool addition to the dining scene that is becoming Sunset Harbor.  He cleverly reused a nice, old building and saved its streamlines and enhanced the experience with fresh elements and a dash of 22st Century style.

But before the process could continue toward getting a building permit, breaking ground and hoisting a glass, Beach Towing decided they did not like the idea.  Since that day, they have run every single legal maneuver to stop it from being built.

And they have been successful by hiring Kent Harrison Robbins and Randall Hilliard.

Robbins was still holding the floor, looking for more roadblocks he could throw in the projects way.  He was concerned that the “public has been circumvented” because ZBA is a chartered board.  Nevel could stand no more. He wanted this to move forward “Enough is enough already! The arguments keep shifting.  The sands keep shifting.  Please take a vote!”

Wolfson got stuck on the “final order” language, arguing that the “final order is not really a final order since it is contingent on another order.”

Nevel saw this as another diversion. “Commissioner.  You said you would never vote for this anyway.  Why bring this up now?”

Russell Galbut took the mic.  “This is not about two companies. It’s not about the greed of one company who wants to be a monopoly.  It’s not about arrogance.  This is about property rights.  When someone buys a piece of property anywhere in this country, people are entitled to a hearing.  But due to five erroneous appeals this one piece of property has been held up for over a year.  This is about fairness, decency honor and ethics!”  He shouted, holding on to the podium with one hand and shaking his other high in the air.  By the time Galbut came back to earth, the motion passed 5-2 with Wolfson and Exposito dissenting.

Robbins plans to appeal.

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