One top expert on the Harrris Act who is not involved in the case agrees.
Richard Ovelmen, an attorney who has litigated Harris Act cases and has written scholarly articles on the law, said the archdiocese suit, which he has read, doesn’t appear to meet two critical tests. The act bars claims of loss based on mere speculative analysis, and requires that the property owner have made an investment in the land with the expectation of making a return on that investment, he said.
The archdiocese obtained the land decades ago from the heirs of Vizcaya builder James Deering to build a school, hospital and other charitable facilities.
“It doesn’t seem to me there would be a violation here because the archdiocese claim is speculative,’’ said Ovelmen, a partner at Jorden Burt. “Nor does Miami 21 seem to thwart any reasonable investment-backed expectations. It just doesn’t seem the archdiocese made any investment in the land with that purpose.’’
Partners in the law firm that filed the lawsuit on behalf of the archdiocese, Bilzin Sumberg Baena Price & Axelrod, have been longstanging critics of Miami 21, a new set of pedestrian-friendly zoning rules designed to protect neighborhoods from intrusive development. Partners Carter McDowell and Vicky Garcia-Toledo helped lead an unsuccessful public charge against the new code — which they claimed would reduce property values and bring development in Miami to standstill — while it was under consideration.
An appraiser hired by the archdiocese based the $89 million estimate of the loss in property value by calculating the difference between what the “highest and best’’ use of the properties would have been under the previous zoning code — that is, if they were to be fully redeveloped with residential and other permitted uses — and what’s allowed under Miami 21.
The new zoning rules do not limit uses of the property beyond those in the old zoning code, but do impose height and density restrictions and other rules on how new buildings could be designed in the future.
The suit claims the rules effectively limit new construction on archdiocese properties to two stories, in part to make development on the site compatible with abutting single-family neighborhoods. It also claims Miami 21 singled out the church properties for strict height limits — the view corridor rules — that apply nowhere else in the city. It also contends that the old code had no height limits for those properties.
But architect and planner Elizabeth Plater-Zyberk, the lead consultant on Miami 21, said that’s an unrealistically strict reading of the code. Plater-Zyberk said she met with archdiocese officials to explain that Miami 21 rules allow special plans with substantial flexibility for large parcels.
“I suggested to them that they should present a plan to determine what’s possible,’’ she said.
Sarnoff said he and other city officials also met with archdiocese representatives.
“I’ve seen plans where they could build up to 15 stories in some areas,’’ Sarnoff said. “But in the suit, they seem to say they wre unaware of that possibility.’’