What does it take to open a two-block stretch of public baywalk in Miami Beach?
Apparently a battalion of attorneys, a convoluted and costly court case that alleges fibbing by a well-known architect and a prominent lawyer, and a peeved federal judge.
Twelve years after the developers of the Flamingo South Beach residential complex on Biscayne Bay seemingly promised Beach residents a public baywalk in exchange for permits to build a massive tower, they have finally agreed to open it.
But it took more than a year of litigation, with at least seven lawyers on each side, after the developers balked at opening the baywalk, contending they thought the city wanted a private promenade. The Flamingo then failed to produce the documents that would have cleared up the question in court, claiming they were missing.
Only some of the records weren't really lost, prompting U.S. District Judge Cecilia Altonaga to call the developers and their attorneys ``obstructionist and careless'' in a strongly worded order.
The case put Flamingo architect Bernard Zyscovich and lawyer Lucia Dougherty under the microscope. The city found e-mails between Zyscovich and Dougherty that its attorneys contend show the two concocting a scheme to avoid acknowledging they knew the baywalk was to be public.
The Flamingo's owners, a Colorado company named AIMCO, their lawyers and Zyscovich have insisted in court their position was consistent from the start: They never agreed to a baywalk for public use.
This week, however, AIMCO folded, agreeing to a settlement that calls for the baywalk -- which must be redesigned and partially rebuilt -- to open to the public within two years. The settlement was approved in principle by the Beach city commission on Wednesday.
NO MISCONDUCT
AIMCO spokeswoman Cindy Duffy said the company acted properly during the dispute. She declined to address the city's allegations.
"We feel that's old news,'' Duffy said. "It was a long-standing disagreement, but the issue is resolved, and the result will be a real improvement for the public.''
With the agreement, the city's long-held goal of a continuous public pathway along Biscayne Bay south of Lincoln Road is well on its way to fulfillment. The 1,500-foot Flamingo stretch, from 14th to 16 streets, would be the longest piece.
The neighboring Capri now has opened a baywalk that connects to the Flamingo's. The Flamingo's southern neighbor, the Waverly, recently lost a property-rights case in state court to keep its baywalk private and, under an agreement similar to the Flamingo's, has opened it to the public during daylight hours.
What baffles some Beach activists is how the Flamingo's representatives could argue ignorance so vehemently when planners and elected officials had long publicly discussed plans for a continuous, accessible baywalk as renovations and new development occured along the western edge of South Beach.
WHY DENIAL?
"Why go to such lengths to deny it?'' said Beach architect Arthur Marcus, a member of the city's Design Review Board when the Flamingo was approved. "Every one of those projects along the west side was required to have a public baywalk.''
The events began in 1997, when the new owners of Morton Towers, an aging apartment complex on the water, proposed to renovate the property, which they renamed the Flamingo, and expand it by adding a large oval central tower.
To make up for the fact that the tower would block bay views, the city imposed several conditions in a series of public hearings, including construction of a baywalk behind the complex that would connect to planned public pathways to the Flamingo's north and south. Zyscovich and the developers objected to the public baywalk idea, citing security and privacy concerns, but never formally challenged the requirement.
"Then, when the developers were finished, they put up a fence and said, `This is our baywalk,' '' neighborhood activist Mike Burke recalled.
The city admits one mistake: The written condition for a baywalk did not use the word "public'' -- on the presumption, city officials say, that everyone involved understood perfectly well that meant a path open to all.
When the city ordered the complex to open up the completed baywalk, the owners sued. They alleged that not only did their architects and lawyers believe the baywalk was to be a private amenity, but that, even if the city had made its conditions clear, it was an unconstitutional "taking'' of private property.
The suit sent the city searching for Flamingo documents that would show, as one lawyer put it, "what they knew and when they knew it.''
After months of delay, Flamingo's attorneys claimed the records were missing -- only to belatedly come forward with a hard drive containing 142,700 relevant documents and a ``room full of documents,'' as Altonaga wrote in an order criticizing Flamingo for "persistently pursuing a pattern of dilatory tactics.''
The most important material, however, was never located, said Richard Ovelmen, an attorney for the city.
"Those documents would show they agreed to a baywalk. But they were gone,'' Ovelmen said. "It made it very hard to prove what they knew.''
The city did locate several documents that its lawyers say strongly suggest Flamingo officials -- Zyscovich and Dougherty in particular -- knew the city wanted a public baywalk, but tried to evade the obligation.
In one 1998 exchange, as Flamingo's application was pending at the city, Zyscovich e-mailed Dougherty that city staff "will be a problem regarding the shoreline walk.'' He added: "We need to establish a strategy that will get us approved while delaying or eliminating the need to accept their proposal.''
Answered Dougherty: "I agree.''
A DELAY
Questioned in a recent pretrial deposition what he meant, Zyscovich said: "Well, it might be possible to delay the bay walk for 20 years, 50 years, a hundred years, or it might be possible to simply eliminate it as a condition altogether.''
Much later, in 2006, Dougherty e-mailed city officials: "The bay walk was required by a DRB [Design Review Board] order which did not specify when the public bay walk had to be implemented.''
And a 2007 settlement of a lawsuit against Zyscovich by Flamingo, which alleged construction and design defects, makes a reference to claims related to "the design of a public bay walk on the property.''
At the very least, city attorneys contend, those records show that Dougherty, Zyscovich and AIMCO officials knew the baywalk was supposed to be public.
Recent orders by Altonaga in which she was critical of AIMCO, including one in which she expressed skepticism about their representatives' credibility, significantly undermined the developers' legal position, Ovelmen said.
