On Aug 21, 2018, the Fort Lauderdale commissioners rejected a plan to build a 21-story residential building on the property at 501 SE 6th Ave on the south side of the New River in downtown Fort Lauderdale; on Sept 19, 2018 the Edgewater Condo Association sued the City of Fort Lauderdale, claiming that as a matter of law, the rejection was not justified. The proposed building, designed by Trammell Crow Residential, would have 181 residential units and 239 parking spaces.
Edgewater is seeking a Writ of Mandamus; essentially a court order reversing the denial and directing the city to approve the site plan.
Background
The Alexan-Tarpon is a plan to develop the site currently occupied by the 4 story Edgewater Condominium. Tramell Crow Residential (TCR) has a contract to buy the property from the Edgewater House Condominium Association, contingent on approval of their development plan. The property sits between the New River and US1 and is adjacent to Smoker Park.
The proposed project is directly across the river from the Las Olas Grand and Watergarden condominiums.
The building would substantially affect open views currently enjoyed by East facing units in the Watergarden and South Tower units in the Las Olas Grand up to about the 25th floor.
City Commission
The 5 person Fort Lauderdale Commission consists of 4 elected commissioners and is chaired by the "Mayor", which in Fort Lauderdale is a glorified commission post. Commissioners Sorensen, Glassman and Mayor Trantalis were recently elected on a platform of "Smart Growth"; they've pledged to address the concerns of "overdevelopment" in Fort Lauderdale.
Current Downtown Construction
If you haven't been to Las Olas recently, you might not know about the plethora of development downtown. Within a 3 block radius across the river from the proposed building there are multiple projects and towers under construction.
They're building another tower on the Riverhouse property that will be a Condo Hotel; and across Las Olas Way there's another high rise residential under construction.
On the other end of the tunnel, The Las Olas Walk with 456 residences is under construction where Carl's Patio used to be.
The building on the corner of SE 3rd and Las Olas has been demolished and a new office building is going up.
Glossary of Confusing Terms
To get an understanding of how complex RE projects are approved in Fort Lauderdale requires an understanding of some basic terms:
DRC = Design Review Committee
DRT = Design Review Team
ULDR = Unified Land Development Regulations
DMP = Downtown Master Plan
RAC = Downtown Regional Activity Center
The process is that site plans are submitted to the DRC and DRT (aka City Staff), who review the plans and then provide comments and recommend adjustments. City staff then works with the developers until all of their concerns are addressed. In this case Edgewater/TCR addressed each and every one of the DRT and DRC's concerns. They also agreed to increase the diameter of the water main to service the building as requested by the Dept of Public Works, and addressed the issues put forth by the Historic Preservation Board. The DOT approved the ingress and egress driveways, and a professional traffic analysis was done.
The ULDR is essentially the "codes" and hardened guidelines for development in Fort Lauderdale.
The Downtown Master plan is a "flexible" document which acts as a "guide" for development to enact the city's "Vision" for what Downtown can become. It's not "codified" into hard codes; it allows for flexibility so developers can work with City Planners to create projects that "fit" the vision.
The approval process took about a year and involved many meetings and design adjustments, and in March 2018 the DRC issued a letter approving the application stating that all comments had been addressed and that the development fully satisfied all ULDR and the DMP requirements.
The Commission Approval Process
It's important to understand that site plans in Fort Lauderdale are not usually subject to commission approval. The city has staff that reviews site plans, works with developers, and approves them based on published criteria. If the commission believes that a site plan is non-compliant despite the city staff review, they can issue a "Call Up"; which puts the plan in front of the commission for review. In order to schedule a hearing, the law requires that the Commission find that the DRC failed to apply or misapplied some specific element of the ULDR or Comprehensive plan.
Politics and Neighborhood Opposition
On April 2, residents of the Las Olas Grand received an Email from their "Board of Directors" outlining their opposition to the Alexan-Tarpon project. This was very surprising because 1) There was no mention of this building at the only board meeting of the year 3 weeks earlier and 2) The LOG Board doesn't email residents to tell them that there's a new garage door opener available or to invite them to their own Christmas Party so such an action was highly unusual. Word had gotten out that they were using association funds to hire lawyers to fight the Alexan-Tarpon project, so it's likely they were covering their butts trying to justify the expenditure. What's important here is that the narrative that there was some sort of building-wide consensus opposing the Alexan-Tarpon building is utter nonsense.
April 3, 2018
On the agenda for the April 3 meeting of commissioners was a murky "Motion Relating to a City Commission Request for Review - Alexan-Tarpon River"; When the time came for the item, it was clarified that they were considering whether or not a De Novo hearing was required for the project. As mentioned, site plans are not normally reviewed by the commission; they first have to vote on whether a hearing is justified.
I can describe the part of the meeting on the Alexan-Tarpon as nothing short of total chaos. First, they had no idea what the procedure was to properly proceed with a call-up; they looked like a bad condo board. Even with a City Attorney on the dais, they had no idea. Commissioner Glassman suggested that they didn't need an actual reason for a hearing and that they should just vote to schedule a hearing simply because a non-specific concern was expressed; when asked for specific concerns he rattled off a bunch of generalities seemingly just saying that he didn't like the project. Commissioner McKinzie expressed concern that they weren't getting the proper legal advice. Mayor Trantalis called for a recess to get clarification. After the recess the city attorney was equally confused, and suggested that "past practices" could overrule the actual legal text.
They then called for public comments; Glassman questioned why they needed to hear any comments. Trantalis clarified that it was a public meeting so people were allowed to speak. He instructed that comments should only be about the motion for a hearing and not on the merits of the application. Board members from the Watergarden and the Las Olas Grand spoke; the LOG board member erroneously stated that the building could not be more than 8 stories, which created some havoc later on when Commissioner Moriatis asked for clarification on this; she didn't even know the height of the proposed building; she asked a city staff expert as to whether the building's height was within code, and he said that the building's height was within code and that "type 2 transition zones" weren't required or even feasible to apply for this location.
After some random bickering over when to hold the hearing, they agreed on May 15, even though no factual evidence was presented that the site plan didn't comply with the legal guidelines.
Neighborhood Fund-Raising Efforts
On April 20th residents of the Las Olas Grand began receiving propaganda signed by "Your Neighbors" stating as fact that the building did not meet code, and telling them that their views and property values would be negatively affected by this project.
Residents were encouraged to make noise and bring "as many family and friends as possible" to the commission meeting.
This was one of the bullet points in the email:
While most of us oppose The Project primarily because it will ruin our beautiful southern views, AND negatively impact our property values, those are not compelling enough reasons for the city to stop a building developers proposal. Our argument must site other issues of community concern and legal facts.
The email also served as a fundraiser; they admitted to blowing the entire annual legal budget on this issue, and residents were encouraged to "write checks" to help continue to fund the effort.
CCPON
The propaganda campaign continued as a PR firm was hired and a lawyer who bought an expensive South Tower unit in the Las Olas Grand in 2015 formed an LLC called "Concerned Citizens for Preservation of Our Neighborhood, LLC".
On April 24, another email was sent, this one signed by "Your Neighbors AKA CCPON" contained the following:
We are happy to report that we have created a new entity devoted to our cause: Concerned Citizens for Preservation of Our Neighborhood, LLC (CCPON). It is our goal to work collectively to prevent the Alexan-Tarpon (Edgewater) project from being built. As we discussed in previous correspondence and at meetings, it is NOT TOO LATE to halt this 22+ story building from going up. The City of Fort Lauderdale Commissioners are still undecided as to whether or not to pass or DENY this development. The decision will be made at a quasi-judicial Hearing which we URGE YOU TO ATTEND on May 15 at 6pm. It is to be held during the city commission's monthly meeting at City Hall (100 N Andrews Ave, Fort Lauderdale, FL 33301). We have retained attorneys to present a myriad of legal reasons why this project is a bad idea, not only for us, but for the city overall.
The height of the building wasn't the only misinformation being spread to the neighborhoods.
Also included in the email were instructions on talking points for a meet-and-greet scheduled with Commissioner Sorensen:
Commissioner Sorensen is a key vote that we need at our Hearing. He has kindly offered this opportunity to hear from us directly and we should ALL take advantage of it. Remember, when you see him, try to avoid the temptation to say the new building would ruin your "million-dollar view". Instead, mention:
- You are concerned about our city's already strained infrastructure
- The detrimental effect the shadow from the Alexan-Tarpon building could have on adjacent Smoker Park
- That you very much want our city officials to adhere to the Downtown Master Plan, which calls for a building of no higher than 8 stories on that land
- Rapid growth often has negative consequences and the Master Plan, which was created as a well-thought-out vision for Fort Lauderdale, should be adhered to
- He ran on a platform of "controlled development," which is why you voted for him!
May 15th Commission Meeting
CCPON outfitted it's "protesters" with red T-Shirts with "No"; picture a room filled with millionaires in red T-Shirts:
This meeting was thrown off due to an 11th hour compromise reached between TCR and the opposition's attorneys for a redesign of the building to 14 floors.
The compromise was a reconfiguration of the building that lowered the tower while adding more units on lower floors; the capacity was largely the same as it was before. The new design created a building that was more "chunky", which is discouraged by the Master Plan.
The hearing on the building was continued to June 19 to allow city staff to review the compromise.
CCPON Goes Dark
The "Concerned Citizens" group went dark right after the compromise was struck for 14 stories; apparently lowering the tower was the main goal of their concern. There were no posts on their Facebook account between May 2nd and Aug 22nd and just a couple of emails with meetings summaries. CCPON has not come out against any of the other projects in the neighborhood, some of which will affect traffic and resources much more than this project. It appears that the Alexan-Tarpon is the only project that adversely affects their "Neighborhood".
June 19th Meeting
The meeting started with a presentation from City Staff; the director of Sustainable Development, Anthony Fajardo, gave a presentation explaining how the 2 proposals conform to the master plan, and that it was staff's opinion that both proposals fit the Master Plan and that it was the city staff's opinion that the original 21 story plan was the best fit to the Master Plan. Another staff member explained that the MP encourages slender towers because they allow more light and air through; the original tower was a better fit than the shorter, wider building.
Commissioner Glassman seemed to suggest that the commissioners should have the right to vote any plan up or down. The City Attorney explained that commissioners were not approving or disapproving the site plan; that the plan was considered approved and for the commission to deny the plan they would have to find an error or misapplication of a guideline.
Despite multiple explanations, Sorensen was unable to grasp the fact that transition zones are not a hard criteria for this location; He was laser focused on the height of the tower. (note that Sorensen is the Commissioner for district 4, which is where this project is located, so the opposition was his constituency).
Transition Zone Explained
The Master Plan includes 2 types of transition zones; One is required, and the other one, like the one adjacent to this project, are "encouraged". Encouraged zones are NOT REQUIRED. Staff explained that because the building is adjacent to US1, which has a height of 0, It's not really feasible to apply a transition zone to this location.
Additionally, US1 is about 120 feet wide and the zone boundry is on the east edge of the road, so the existing building is about 130ft from the next zone. The requirement is 200 feet, so the proposed zone only partially overlaps the property. If this were a hardened criteria, it seems to me that they could simply move the tower closer to the river to avoid the transition zone, which is something that neither City Staff nor the Opposition wants.
My view is that the intent of the encouraged zone in this location is that they didn't want a wall of skyscrapers lining federal hwy from the Tunnel to the Shell Station on SE 9th. Obviously this project isn't anything like that.
The Mayor opined about reducing the number of projects and units overall in the city; failing to understand that the ULDR is the law and that 181 units is not a high density project. Glassman then tried to cherry pick sections of the ULDR without having any real idea what he was talking about, again talking about transition zones without fully grasping the concept.
They then opened the floor for public comment and there was lots of inadmissible testimony from residents of nearby condos talking about the ULDR, but none of them are experts, so none of it could be considered by commissioners. None of them really knew what they are talking about, a couple of them implying that they "drive the streets everyday" so their opinion was more valid than some silly study.
I only noted 1 person who commented in favor of the project.
The CCPON guy and a board member from the Watergarden pleaded to only consider the 14 story building, apparently because they paid lawyers to negotiate a compromise. The lawyer for CCPON and the Watergarden tried to make the case that only the 14 story building should be being considered based on what was said at the previous meeting. Having just watched all of the meetings I can assure you that the city attorney went out of his way to point out that the originally approved plan was still on the table, and that the compromise would be considered as an option.
After an explanation of all of the modifications the developer made to appease City Staff by Edgewater's attorney, public comment was closed. There was no expert testimony as to why the plan should be denied.
Glassman then tried to argue with a city engineer about water processing capacity but the engineer was confident that the project would have no adverse effect and that all due diligence had been done.
Sorensen grasped at some straws regarding the integrity of the tunnel, as if city staff had somehow overlooked that.
Director Fajardo was asked why they were still recommending the original site plan, and he explained that they looked at the modified proposal and found it to be compliant with the DMP, but that they preferred the original design.
The City Attorney then explained that the commission could vote to approve the original plan, deny the plan, or to approve the plan with conditions to effectively approve the 14 story compromise.
Mayor Trantalis then completely ignored instructions from the City Attorney and testimony from city staff and made a speech indicating that he was unhappy with "various" things without specifically pointing to something he believed was approved in error. He spoke about his "promise" to voters and about density; effectively trying to make up law from the dais. McKinzie pointed out that density issues were vetted in the process and accused the other commissioners of being politically influenced by a community that doesn't want the building to be built at all.
McKinzie called for the Developer to be called up to ask him what he could live with in terms of density; telling the Developer that he was "about to be crushed" and that he should tell the commission what his "minimum density" for the project was; the developer pointed out that they had already dropped from 200 units to 180 as a concession, to which the Mayor responded "You don't start with 500 and go down, you start with 1 and we go up". McKinzie pointed out that property owners had a right to build what they wanted to build as long as it complies with the ULDR (and that they were not required to negotiate with commissioners). Glassman, clearly intent on a straight down vote on the plan, tried to push the idea that no negotiations should take place and that it was an "insult to the architects" to have a city commission demand arbitrary changes.
The Mayor then called for a 5 minute recess so that he could speak with the developer. The result was a suggestion for a 14 floor, 120 unit design; and that the developer would need to determine if it was feasible. The commissioners then argued about process and the appropriateness of private negotiating.
The idea that they pre-approve the project with the condition of reduced density was proposed, but Sorensen and Glassman scoffed at the idea of approving a building they didn't get to review.
Glassman also re-iterated his belief that the City Commission should be able to vote up or down every development in the city. McKinzie explained that they don't do that anymore because the process was too difficult; Glassman then pretty much admitted that he took emails and complaints from neighbors who know nothing about the ULDR into higher regard than the experts who work for the city. McKinzie tried to convince Glassman that all of the traffic, ingress and water issues Glassman mentioned were vetted by city staff, but he voted "No" anyway.
Trantalis then went into a delusional speech where he indicated that he could "never vote for a 21 story, 180 unit building", apparently even if it was completely within the established law and guidelines.
Sorensen also voted "No", giving an incoherent explanation implying that he thought that development projects should be some sort of negotiation between neighbors, the commission and developers.
Trantralis then also voted "No", for no apparent reason, denying the application and the compromise. He then asked the City Attorney whether a specific reason was required; the city attorney indicated that the record of the hearing would show "the reasoning", and that no declaratory statement in the motion would make a difference. This is wrong, I believe, because the law requires that a site plan denial include which specific aspect of the guidelines were misapplied.
While it seemed like it was over, of course it wasn't. Faced with having to start from square one, the developer addressed the board and said he felt that the "rug was pulled out from under him" after he thought he had a deal, and that he was willing to show them the modifications before the next meeting.
The commissioners did some dipsy-doodling about undoing the denial they just voted on and agreed to continue the hearing until July 10. The developer indicated that the July 10 meeting would be too short a time to do things properly, and the vote on the proposed 120 unit version would be held on August 21.
August 21, 2018
The big surprise at this meeting was that not only did TCR/Edgewater not submit a new plan for a 14 story, 120 unit building, but they pulled the other 14 story compromise and were offering only the original 21 story plan that was approved by city staff. The Mayor was confused as to why only the 21 story project was on the table and that the City Staff was recommending that they approve the original project. The City Manager explained that their position of recommending the original 21 story site plan had not changed and that nothing had been presented to them for review since the June meeting. The Mayor was concerned that the commission and city staff were at odds and he wondered why they couldn't get on the same page; he simply never understood that the original 21 story plan was created with recommendations from city staff, and that they believed that it was the best option for the city.
Mayor Trantalis asked to hear from the applicant for an explanation.
Edgewater's attorney explained that they did an internal study on the 120 unit suggestion and that "it just didn't work". He explained that his client believed that the original site plan was the best plan for his client and for the community.
With nothing left to discuss, the Mayor asked for comments by the other commissioners.
Vice Mayor Sorensen, who I believe never would have voted for this project in any feasible form, expressed his disappointment that the Developer wouldn't jump through yet-another hoop at his demand.
Commissioner Glassman refused to accept any of the findings of City Staff, instead relying on his own opinions on whether or not the plan met the city's criteria; rejected actual studies by experts and the recommendations and opinions of city staff. Mayor Trantalis then reversed the roles somehow claiming that the applicant needed to prove that the site plan met the criteria; rather than the commissioners having to prove that the site plan didn't meet the criteria.
In an apparent attempt to mock Sorensen and Glassman, Commissioner McKinzie asked the City Attorney to provide a public explaination of the guidelines for voting on the site plan. Since the plan had already been approved by city staff, the commissioners should only vote to reject the plan if there was "competent and substantial evidence" that the developer didn't comply with the "published criteria"; essentially the ULDR guidelines that the City Publishes for developers. He explained that "opinions" don't apply, and that the commission's vote would be judged on whether or not competent and substantial evidence was used to make the decision for denial.
Predictably, the proposal was voted down 3-2 with 3 commissioners ignoring the City Attorney's instructions, effectively killing the Alexan-Tarpon.
What Happened Here?
I didn't attend the meetings, but when I heard (via Twitter) that TCR didn't make a new proposal AND pulled the compromise I immediately knew what was going on; they had decided to take it to court. The original plan had no chance of passing this commission. The hearing was over, so they made the calculation that they had a better chance of getting the original plan through the legal process than some watered down version via the commission. After watching all of the meetings on video it was fairly clear to me that the commissioners were not negotiating in good faith. It seemed fairly obvious that Sorensen and Glassman were not considering any facts at all and were not going to vote to approve any project. Mayor Trantalis seemed to have some delusion that there was some compromise that would create kumbaya between the developer and "community"; he clearly did not understand that the opposition was never going to be happy with a building that was financially feasible to build.
The commissioners mistakenly considered themselves to be "experts", which they are not. They created their own requirements for this project, based on their own ideas about how the city should be run. Imagine a police force that enforced the law the way they thought it should be, rather than the actual law. Imagine being pulled over for doing 65 in a 75 MPH zone and given a ticket because the police thought the speed limit should be 55 MPH. You can't run anything successfully with squishy laws that can be changed by anyone with a bit of power.
The Mayor never grasped that by calling up the site plan, they were effectively accusing their own staff of not doing their job properly. His surprise that they were "at odds" illustrates his lack of understanding of the process.
What also happened is that the bogus "arguments" made by the opposition regarding traffic and density resulted in the 14 floor compromise not being accepted. While the well-funded opposition was happy with a simple reduction in height, Mayor Trantalis continued to harp on the density issue, even though most of the opposition didn't really care about it. The problem was that the so-called opposition wasn't united in their goals; the guy on the 23rd floor was happy with a height reduction, while the people on the 12th floor didn't want the building to be built at all.
What I Learned
Before I started researching this article I knew virtually nothing about how development projects are approved in Fort Lauderdale. I feel now like I completely understand the process and how it works. Something that's important to understand is that under Florida Law property owners are entitled to build whatever they want on their property as long as it fits within published code and guidelines. In the case of commercial developments, they've already gone through a negotiation process in order to get an approval and it can't be overruled for arbitrary reasons.
In the old days, all site plans went through a process like this. The result was that nothing was built. Politics, opinions, lay people complaining is too much noise for a city to flourish. So the city put a process into place which made it more appealing for developers to invest in the city; an arduous process where competent city staff worked with them to come up with a site plan that conforms to the guidelines; after which a plan was considered approved and could move forward. This process gives developers confidence that they aren't wasting their time designing projects that will be rejected by some commissioner who doesn't like the color or form. Or some commissioner who gives more weight to a millionaire in a red T-shirt than the city's own guidelines.
I also learned that McKinzie and Moriatis are the only competent commissioners in terms of understanding their role; and that the other 3 members of the commission are completely cool with ignoring the law for arbitrary reasons. I learned that Commissioner Glassman has no respect for the law, and that Commissioner Sorensen is willing to disregard to law to appease his constituents.
I also learned that it's probably a waste of time and money to oppose these projects, because as a matter of law the commission does not have the authority to kill a project that is compliant with the ULDR. The city staff is highly competent and finding "experts" that can challenge them would be difficult.
I learned that lawyers are ineffective in this type of forum; the commissioners do not consider lawyers to be experts and their statements didn't seem to hold any more weight than citizen commenters. I think TCR made a mistake in compromising with the opposition; it only served to confuse things and waste an additional 2 months of their time.
What Will Happen?
I've read the lawsuit, which makes the claim that the Edgewater was denied Due Process because the plan is compliant with the City's ULDR and comprehensive plan. It claims that 3 of the 5 commissioners voted against the plan because they insisted on height and density concessions that are not required by the city's guidelines.
Administrative bodies have little discretion when deciding whether to approve a site plan that clearly conforms to administrative code because property owners are entitled to know the conditions they must meet when developing property within existing zoning and code requirements. The quasi-judicial function is conducted solely to determine whether those conditions are complied with.
In my opinion, the Alexan-Tarpon will be built to the original 21-story 181 unit plan with the court ordering the city to approve the plan as a matter of law. I'm not a lawyer or a ULDR expert, but if I were a juror I'd vote against the commissioners in 5 seconds without any possibility of being swayed. I can't imagine anyone watching this shit show and coming to the conclusion that the commission used a single fact in deciding to reject the plan. The commissioners openly disregarded the law and their attorney's instructions. Sorensen was totally bamboozled by opposition propaganda about transition zones to the point that he could never let it go.
The commission abused the call-up procedure by calling up a building because of neighborhood noise and not because there was actually anything wrong with the site plan.
While the new commissioners and Mayor were elected on a platform of slower growth, they don't currently have the power to control that. We have a plan that supposedly controls growth. We have codes and guidelines that specify how many new units can be built. The commissioners can try to change the codes and the existing guidelines. But right now, they are are obligated to stick to the laws that are currently in place.
Two commissioners and the Mayor blatantly ignored the expertise of their own staff and attempted to micro-manage a project without any specific criteria. Although it was explained to them over and over by commissioner McKinzie and the City Attorney, they never understood that they didn't have the authority to deny the plan just because they didn't love it.
My Concerns
Politics are what they are, but in this case we have a rogue commission that can potentially make a lot of bad, unlawful changes if the court doesn't put them in their place. This site plan was singled out because of politics and was used as a pawn so that newly elected commissioners could beat their chests and show their constituents that they were living up to their campaign promises. We also have a case of rich people who can afford to hire lawyers and PR firms to bully politicians into ignoring the law and to vote the way they want them to vote. We tend not to be concerned about such things when the votes go our way as with The Wave, but having non-objective people in positions of power is not a good thing for the city in the long run.
Commissioner Glassman was elected with a whopping 3,532 votes and Sorensen with 2,766 votes. And now they think they should be able to make their own laws. The entire legal case from bringing this project up for review was Glassman saying he had "Issues with ULDR compliance". Imagine if a guy who got 3500 votes could shoot down a multimillion development project without having a single one of his facts corroborated by an actual expert.
I think this decision is wrong; if the courts have no remedy to correct the actions of dishonest or incompetent officials, then there is no law. If the law can be dismissed without consequence; then we are lawless, and the commissioners can forge whatever lawless agenda they choose.
Hard to believe the city wins this; it seems like a 'win' would be to have the decision kicked back to the commission (which would be folly) rather than a court order instructing the city to approve the plan.
I watched all of the hearings, and this report was never even mentioned. Her "findings" were specifically refuted by Anthony Fajardo, who is the city's top planning expert. Virtually none of the "evidence" in the legal response was presented at the hearing. The emails point out that the "opposition" had no standing and since none of their "evidence" was presented at the hearing it would seem doubtful that it could be considered now.
The rambling of the response is evidence that they have no specific reason for the call up or for the rejection. There's very little correlation between the legal response and the actual hearing; where every single one of the opposition's points were swatted down as wrong by the City's own experts.
"Due Process" is about fair and objective treatment. Anyone who watched the hearing knows there was nothing fair or objective about this process.
The Mandamus response reads like a bunch of lawyers trying to cover up the incompetence of the City Commissioners, which is exactly what it is.