Bal Harbour Shops Owner Files First Major Lawsuit Testing Reach Of Live Local Act

The owner of the Bal Harbour Shops is stepping up its fight with local politicians to add four residential towers to the luxury shopping center.

Whitman Family Development, which owns the shops, filed a lawsuit Tuesday asking a judge to compel the village to approve its plan to develop more than 500 apartments on the property under the Live Local Act. 

The filing marks one of the first lawsuits from a developer seeking to challenge municipal pushback to the state’s new affordable housing law and sets the stage for a legal battle over how much authority municipalities have to constrain developments proposed under the law. 

Whitman is asking Florida's 11th Judicial Circuit Court in Miami-Dade County to rule that public comments from Bal Harbour officials amount to political interference in an effort to circumvent the provisions of the Live Local Act, which require administrative approval for projects that fit within its guidelines, and to compel the village to swiftly consider the application.  

“Instead of properly reviewing the Application for administrative approval, the Village leadership published comments pre-judging the Application, creating their own exemptions, constraints and limitations found nowhere in the text of the Act, and communicating their position to a Building Official who is required to make decisions free of political influence,” attorneys for Shubin Law Group, which is representing the developer, wrote in the suit. 

The Live Local Act, which went into effect in July, is meant to spur the development of affordable and workforce housing. In addition to the administrative approval provisions, the law also provides height and density bonuses and tax breaks for developments that set aside at least 40% of units for residents making up to 120% of the area median income, or $89,640 for a single person in Miami-Dade County. 

Whitman Family Development is relying on those provisions to build four towers rising up to 275 feet with 528 residences, 40% of which would be designated workforce housing, along with a 70-key hotel and an additional 46K SF of retail space. 

Bal Harbour officials expressed broad objections to the proposal at a village council meeting last Tuesday and authorized the village manager to “expend resources to take all necessary steps to protect the village” in response to the plan. 

“By opposing the creation of attainable housing at the Bal Harbour Shops site, the Village of Bal Harbour’s leadership is undermining the spirit and letter of the Live Local Act and doing its part to ensure South Florida’s affordability crisis is here to stay,” John Shubin, an attorney at Shubin Law Group, said in a statement. 

While the council aired frustrations over the proposal, members didn’t make any final decision on whether to approve the project, which District 3 Council Member Buzzy Sklar told Bisnow was still under consideration. 

The lawsuit was “putting the cart before the horse and just buying a lot more ill will” as the village deliberates on the project, he said. 

“Their application is in, and we have 30 days to review the application,” Sklar said Wednesday. “They are basically filing suit on something that has not happened and that they're assuming might happen, which is very frivolous at this juncture.”

Whitman Family Development’s lawyers argue in the suit that the negative commentary at the council meeting and the resolution to empower the city manager to investigate the proposal’s impact amounted to undue political influence in an administrative matter. 

The shops' owner “has a clear legal right to its administrative processing by the Village Manager and Building Official without further delay or political interference,” the suit says. “Upon information and belief such interference has already occurred.” 

An order compelling the village to process the application under Live Local’s provisions is necessary because Bal Harbour “is openly hostile to the very processing of the Application,” the suit says. 

The legal wrangling comes as the Florida Legislature considers amendments to the Live Local Act that would remove some ambiguities around what factors municipalities can consider when processing applications and adjusting some of the density bonuses. The changes are making their way through the legislature, and additional changes have been proposed at the committee level. 

Sklar said the uncertainty surrounding the language of the amended bill provided further cover to Bal Harbour officials as they wait to see the final language of the bill. 

“Until that’s done, I don't think anything could really move forward,” he said. “We really don't know, at the end of the day, where everything's going to fall.”