To call this a dispute over a sidewalk would be like calling Bill Cosby flirtatious.
Something much more contentious was simmering beneath this supposed squabble over a piddling stretch of brick pavers along three lots in an exclusive Aventura enclave.
First hint that this case was really a proxy fight over something bigger and pricier was the scene in Miami-Dade Circuit Judge Jerald Bagley’s courtroom on Friday morning.
Nearly every seat was filled. With suits. (With the exception of a certain shabbily attired newspaper columnist.) You could hold a yard sale with the nicely tailored threads of the lawyers and plaintiffs and defendants jammed into the courtroom and make enough to cover the construction costs of this infamous sidewalk. Three law firms dispatched troops to Judge Bagley’s courtroom, ready to rumble.
No, this wasn’t about a sidewalk. Not really. This was about our American way of life. Or at least our South Florida way of life, which entails fending off hurricanes, pythons, flesh-eating zombies and developers intent on building something overbearing next door.
Next door, in this case, would be the next island over.
Island Estates contains 21 waterfront homes on a fill island in Dumfoundling Bay, a fat bulge in the Intracoastal Waterway between Aventura and Sunny Isles Beach. Residents of what the court documents describe as South Island contend that they were deceived by the project’s developer who also owns another nearby fill island, aka North Island, which contains nine empty acres. Developers, of course, regard nine empty acres in the vicinity of Biscayne Bay as utterly untenable, an itch that must be scratched.
Except that the only way to get from North Island to the mainland would be a two-lane bridge onto the brick-trimmed road that dissects Island Estates down the middle.
Homeowners claim that when they bought their waterfront homes on Island Estates, developer Gary Cohen had promised that North Island would become “Casas de Oro,” an even pricier subdivision with just 17 homes on 16,000-square-foot lots.
But a couple years ago, Cohen switched from a Spanish sobriquet to something kind of Frenchie. Instead of 17 mansions, Privé would feature two, 16-story condo towers with 160 apartments and parking for 572 cars.
Residents on South Island realized that the quiet street running through their formerly exclusive island would become the only connector to the mainland for an extra 572 cars — not to mention trucks hauling cranes, bulldozers, hardhats and building supplies parading through their neighborhood during months and months of construction.
Variations of this unhappy drama have played out time and again during South Florida’s boom years, when homeowners find their quiet, quaint neighborhoods beset by condo towers or lot-line-to-lot-line mansions or the occasional WalMart. Except most of us can’t do much more than take our complaints down to City Hall where we find the developers’ lobbyists have packed the house and greased the commissioners.
It’s a little different when, according to Zillow, the neighborhood homes go for $5 million to $6 million, with two guardhouses between the island and the unwashed masses. These are not folks apt to surrender their domestic tranquility without a tussle.
The legal fight to kill the condo project has now entered its second year. The nub of the lawsuit, at least in these early rounds, has to do with a bit of minutia in the Aventura city code. The city refused to issue a building permit for Privé unless the developer built a sidewalk along the south side of roadway through Island Estates (although there was already a sidewalk along the north side).
So it was no sidewalk, no condo towers. Three homeowners on that south side of Island Estates Drive went to court seeking an injunction blocking Cohen’s sidewalk crew from “trespassing” on their property, a contentious charge given that the four-foot wide strip of pavers would be built along an easement. Judge Bagley issued a temporary injunction against building the sidewalk until he could sort this out at trial. Meanwhile, Cohen and his partners, with 71 units sold and up against a 2017 deadline, with a $145 million loan contingent on a building permit, filed a $200 million lawsuit against the city for delaying the project, and another $225 million suit against the homeowners, charging they “are doing everything in their power, legal or not, to stop the Project, either out of avarice for financial gain or selfishness.”
And his lawyers took the sidewalk issue to the Third District Court of Appeal, which tossed the injunction on Feb. 26, reasoning that other parties involved in the Privé development should have been allowed to get involved in sidewalk squabble. Because this was about more than a mere sidewalk.
The very next day, a Friday, Cohen’s workers went to work, building a walkway before the homeowners could get back to Judge Bagley and get an injunction tailored to the appeals court ruling.
Of course, this being South Florida, the dispute turned into something more than a legal exercise. Dara Clarke and her husband David Clarke -- after acting out the fantasies of put-upon homeowners everywhere -- were charged that evening with running their automobile through the still-wet cement, ruining the new curbs and mucking up the brick pavers in front of their Island Estates home. Perhaps the difference between this dispute and the usual resident-versus-developer fight was that the instrument of destruction was a Porsche SUV.
Dara, who also happens to be a lawyer, testified Friday, her voice roiling with defiance, describing Cohen’s sidewalk builders as a band of trespassers. Judge Bagley, mindful that there was now a criminal case complicating this mighty mess, allowed no testimony regarding the SUV attack. He did say that he understood that “something else happened, some arrests, that tells me about the emotions involved here. I get that.”
But the judge was only interested, this day, in the narrow issue of whether Cohen’s workers had actually managed to finish the sidewalk before the homeowners charged back into court to secure a new injunction. It came down to an argument over the definition of “substantial,” as in was the work “substantially finished” before the latest injunction, issued on Monday, or had Cohen, whose workers came back to do a bit of touch-up work, flouted the judge’s order to stop construction.
Judge Bagley thought not. Besides, the judge noted, it wouldn’t be all that difficult to remove the sidewalk if he eventually rules in favor of the Island Estates warriors. So much for that.
But they who live on a millionaire’s island behind two guardhouses had lost a skirmish with a condo developer who threatens to infringe on their wonderful lifestyle. If the folks who drive Porsche war wagons, who come to court with a platoon of fine lawyers . . . if they can lose . . . well . . . that hardly bodes well for the rest of us.