An attempt to rip up an Aventura sidewalk that has pitted rich homeowners against an equally rich developer failed Friday when a judge ruled the sidewalk was complete and the homeowners would have their day in court at a later date.
The three homeowners of Island Estates, an exclusive island off the coast of Aventura, on Monday had sought an emergency motion for a temporary injunction to remove the sidewalk and put their property back in its original state.
Developer Gary Cohen argued the sidewalk was finished last Friday and the issue was moot. Cohen wants to build two luxury condo towers at the island just to the north, called Privé at Island Estates. The city, however, required Cohen to build the sidewalk before issuing any permits for the project, whose condos are advertised with such features as “five-star concierge’’ and “full-service valet.”
Price tag: From $1.7 million to more than $6 million.
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Miami-Dade Circuit Judge Jerald Bagley said the homeowners would get their chance to fight the contested sidewalk at trial.
“I will not entertain any motion for permanent removal of this sidewalk. That will be a matter addressed at trial,” Bagley said.
Susan Raffanello, the attorney for the homeowners — David and Dara Clarke, Dan and Sheila Kleiman and Alan Reyf and Kathy Fox Haime — argued the sidewalk was still being worked on as late as Tuesday. As such, when Cohen’s lawyer on Monday told Bagley the sidewalk was complete, he wasn’t telling the truth, Raffanello said.
“They said the sidewalk was complete, that it was done in full,” Raffanello said. “We now know that they knew those statements were not correct.”
Gerald Richman, the attorney representing Cohen, said no lies had been told.
“On the afternoon of Feb. 27, the pavers were all put down. The sidewalk was installed,” Richman said. “The issue is moot. They are desperate to prevent the development on the north island.”
He said the plaintiffs saw minor cosmetic fixes after construction was finalized. Additionally, Comcast had to move a cable box and the workers had to reset the pavers this week.
“There’s been no misrepresentation,” Richman said.
Aventura did not give Cohen final clearance for the sidewalk to be used. In a March 2 report, it cited additional landscaping issues, exposed roots and problems with the sidewalk’s curb as sources of the project’s incompletion.
Cohen has maintained that when the Clarkes drove their Porsche SUV over the wet concrete curb on Thursday evening — an act that resulted in them getting arrested and charged with criminal mischief and disorderly conduct — it delayed the project’s completion. Cohen filed suit Thursday against the Clarkes seeking more than $15,000 in damages.
The sidewalk on Aventura’s Island Estate has been a sensitive issue since 2013. That’s when Cohen changed his building plans for the eight-acre neighboring island from a cluster of single-family homes to a 160-unit luxury condominium, spread over two towers. The city required the sidewalk to accommodate the increased pedestrian traffic from the towers.
Friday’s emergency hearing was the culmination of a year-long attempt by the homeowners to stop Cohen’s efforts to build the condo towers.
The homeowners contend Cohen built the sidewalk on their private property, a point of view echoed Friday by their attorney.
“The sidewalk is trespassing on private property,” Raffenello said in an email to the Miami Herald on Friday afternoon. “We are confident we will prevail at trial at that issue.”
Not surprisingly, the developer’s attorney had a different take.
“There was an absolute legal basis to go ahead and build the sidewalk and utility,” Richman said. “What we didn’t get to present is the evidence that all through Dade County, sidewalks are built in utility easement, unless they’re exclusive and designated and this is not designated. The city authorized it, the utility authorized it, this business about it being trespass is an argument without merit either for a temporary injunction or to have it removed.”
The case will be continued later in March.Charges against David and Dara Clarke were dismissed on September 24, 2015. On August 31, 2016, a court ordered that the court and legal records of Dara Clarke in this matter be expunged.