NOTES SUMMARY THROUGH 1/5/07

CUTLER PROPERTIES LC APPLIES TO FILL COASTAL WETLANDS

Cutler Properties LC is owned by Fortune International (Edguardo Fortuna of Fortune Magazine/Realty, etc.) Cutler Properties has filed an application with the Environmental Quality Control Board for a waiver of Chapter 24-58.3(B) of the Miami-Dade County Code. Cutler Properties wants to fill over 30 acres of Class I Coastal Wetlands to build high density/multi-use residences and shops of undisclosed detail in a primarily single family home dominated area. Cutler Properties LC does not meet any of the requirements of county code for the filling of wetlands- yet the director Department of Environmental Resources Management (DERM) has recommended that the Environmental Quality Control Board (EQCB) grant a variance.

The property at 18551 Old Cutler Rd. was purchased in October of 2003 for $2,400,000 and has since been refinanced for $8m +/-. The property consists of 9 acres of uplands (no variance required), 33 acres of lower quality wetlands and 93 acres of higher quality wetlands. The 93 acres of high quality wetlands are being offered to the county as part of the deal with DERM and will be used to allow higher density on the remainder of the property during the zoning process even though the higher quality wetlands can never be touched for development.

EQCB agendas are only published in the Daily Business Review and on the Miami-Dade website making it very difficult for citizens to know what’s in store for their neighborhoods until the bulldozers have begun clearing the land. Just a week before the November 9th EQCB Palmetto Bay individuals happened upon this information, began investigating, contacted the Tropical Audubon Society and began Googling Cutler Bay citizens groups. A TAS email was widely circulated and representatives from homeowner’s and activist’s groups began working together in opposition of granting the variance for the filling of wetlands.

WHY CUTLER BAY AND PALMETTO BAY GROUPS OPPOSE GRANTING A VARIANCE OF COUNTY CODE
• This is the last piece of green that stretches from Old Cutler to Biscayne Bay in Cutler Bay
• Past developments like the adjacent Cutler Cay (National Geographic 9/06) are endangering our coastal wetlands and the bay.
• The proposed filling does not meet ANY of the requirements of county code.
• DERM is accepting a bad project with bad mitigation. 33 acres of impact to 3 acres of mitigation is an unacceptable deal and not in the public’s best interest.
• The development does not allow for full implementation of the Comprehensive Everglades Restoration Plan (CERP) currently envisioned for the site.

DEVELOPERS COMMUNICATION WITH RESIDENTS
At the September EQCB the chair commented on the applicant’s contact with neighbors. As of the November EQCB no proof of community contact was found but the applicant submitted a request for a deferral to DERM on the basis of the need for community contact and stated, “That process has been on-going and continues to this date.” The only contact uncovered was an informal meeting with environmental groups 15 months previously.
Cutler Properties attorney Howard Nelson, of Bilzin Sumberg, was contacted directly by representatives of Cutler Bay/Palmetto Bay groups. He was asked to quantify who he considered the community and to notify the writers of any meetings scheduled before the December EQCB. In a phone conversation Mr. Nelson characterized the environmental community as the only stakeholders and reiterated that he had met with them and had therefore met with the community. He stated that the lawyers handling the zoning process were handling meetings with neighbors. When told that the residents were concerned with environmental issues Mr. Nelson said he would meet with residents. As community awareness rose, email poured into DERM and pressure mounted, reports of undeclared meetings with members of Cutler Glen Homeowners Association emerged. The attorney handling zoning applications, Simon Ferro of Greenberg Taurig, gave only two days notice of a meeting to which only a few were invited. This meeting was basically a sales pitch and did not address environmental impact. As of the December EQCB no meetings on the environmental impact of the project were conducted by representatives of Cutler Properties.

DECEMBER 14th EQCB HEARING
Palmetto Bay and Cutler Bay citizens groups have organized in strong opposition to the filling of the wetlands and to developing the last piece of green in Cutler Bay that goes from Historic Old Cutler Rd. to Biscayne Bay. These groups have worked diligently for months to inform area residents about the proposed development and its consequences. As a result, concerned individuals took the day off work and made the trek downtown to attend the EQCB even though letters from DERM and the developer informed citizens of the request for yet another deferral.
After hearing several residents of Cutler Bay and Palmetto Bay and an adamant representative of the Sierra Club speak against the continuance on the grounds that Cutler Properties had not made a good faith effort to communicate with stakeholders about the environmental impact of the proposed project, and discovering that 370+ letters had been received by DERM from citizens opposing the variance, the board, in front of a packed room, summarily voted against granting the continuance. The attorney for Cutler Properties was not prepared for this and did not have his case in order. He stated that he needed time to locate his witness from the South Florida Water Management District. It is highly unusual that the SFWMD would speak on the behalf of a development project. DERM revealed that their letters to citizens advising them of the continuance may have discouraged attendance by the community. In light of these facts a compromise was promulgated where Cutler Properties had to go on record that if allowed a continuance to January they would seek no further continuances. Many citizens were unhappy with the compromise and continued to strongly disagree with granting the continuance. They made a forthright request that the meeting be held in South Dade and in the evening to assure the participation of all concerned citizens. In a move viewed as unprecedented by many, this request was granted by the EQCB.

The developers committed to having a meeting with the public and it is scheduled for January 8th. The EQCB is on Thursday, January 11th at 5:30 at the South Dade Government Center.

MISC. ISSUES
Trebloc Corp. was the previous owner of the property. Trebloc was responsible for unauthorized clearing of wetlands. DERM and the county spent a lot of time and money in litigation to establish that the wetlands were class one coastal wetlands and to obtain a Consent Agreement from Trebloc. The consent agreement has not been fulfilled as of this date. Violations on the property stay with the property and are the responsibility of the new owner.

DERM’s motto is “Delivering Excellence Everyday”. Delivering it to whom? DERM rarely recommends that variance applications be denied and the EQCB almost always follows DERM’s recommendation.
DERM’s past performance demonstrates that they view developers as their customers rather than serving in the best interests of the public. 370+ emails were received in opposition to this development by DERM (The most mail DERM has received on one application) yet at the EQCB DERM did not notify the board of this fact! The only way for the EQCB to gain knowledge of the volume of email is for a resident to stand before them and speak about it, but the resident would have no idea how many letters were received by DERM unless he formally requested the public records.

Mayor Vrooman of Cutler Bay wrote directly to the chair of the EQCB and instead of supporting this citizen’s movement to contain development wrote that he agreed with DERM’s recommendation and asked that the 90 acres of higher quality wetlands be deeded to Cutler Bay to help satisfy the green space to development ratio required under the CDMP for incorporation. Why have the 90+ acres given over to the Town of Cutler Bay? Yes they can claim it as “parkland” (passive) to help satisfy the requirements of their Comprehensive Development Master Plan but it will not be on the tax rolls and the responsibility for maintenance will be on the taxpayers/town.

The Town of Cutler Bay has declared a moratorium on building along Historic Old Cutler Rd. DERM records show that staff was aware of this. Why were the desires of the town disregarded and a variance approval recommended by DERM?

Due to the “Jennings Rule” citizens are unable to contact their county commissioner because the matter may come before the BCC. Citizens of Cutler Bay have also been told by their mayor and council members that they cannot speak to them on the subject, citing Jennings, despite the developer’s assertion that a zoning application has not yet been filed.

There was a 14ft? storm surge recorded on the adjacent Burger King property during Hurricane Andrew. Does it make sense to continue building on wetlands in consideration of that fact and in light of what we’ve learned from Hurricane Katrina?