When Florida lawmakers passed a bill this spring, creating a loophole for billionaire Jeffrey Soffer’s controversial Miami Beach water park to proceed, a massive legal war was widely expected. The city was angered over being preempted from voting on the project, while residents decried the project’s expected effects.
Yet, months later, just one lawsuit has been quietly filed by a single Miami Beach resident.
Richard Simring sued Soffer’s Aventura-based Fontainebleau and its resort ownership entity Fontainebleau Florida Hotel over the state legislation’s provision that allows the project to bypass a city vote. Although the clause isn’t specifically tailored to the Fontainebleau, it only affects this property, according to the Miami-Dade Circuit Court complaint.
Simring also echoed opponents’ concerns with the project over traffic, noise, crowds and a change to the neighborhood’s character, according to the complaint. The effects of the project, including congestion at 41st Street and Pine Tree Drive, will be “unspeakable,” Simring said.
On Friday, Fontainebleau sought to sink the complaint in court, arguing in part that Simring should have sued the state.
The developer wants to add cabanas and a steel-and-aluminum waterslide tower at the 1,593-key Fontainebleau Miami Beach resort at 4441 Collins Avenue. The waterslide will rise 99 feet, after the developer previously dropped the height from 131 feet and also reduced the cabana structure’s height by 30 percent in response to opposition.
Residents’ outcry started soon after project plans were revealed late last year, with elected officials, including Mayor Steven Meiner, joining a grassroots coalition against the project. The Miami Beach Historic Preservation Board delayed voting on the proposal in February.
A month later, the state legislature approved the bill that deals with general land use items but includes a clause mandating cities administratively approve development rules modifications that apply to 20 percent of land occupied by resorts with over 500 rooms and an average occupancy rate of at least 70 percent for the past three years.
Fomenting anger over the legislation has been its support by lawmakers who don’t represent Miami Beach. Florida Rep. David Borrero, who represents Doral, which is miles west of Miami Beach, told the Miami Herald that a Fontainebleau lobbyist helped draft the resort carveout in the bill. Then, at the request of Rep. Will Robinson, who represents a district on Florida’s West Coast, the state attorney general issued an opinion in June saying the city no longer could require the historic board to approve the project.
Simring, a disbarred lawyer, filed the complaint on his own behalf in June, alleging that House Bill 399 “orders” the city to approve the project and skip the historic board’s review “that every comparable project must pass,” according to the complaint. He asked the court to strike the law’s contested provision, saying it violates the state constitution.
“Once the water park is approved and built, no award of money can undo it,” he wrote, adding that it would lower the value of his La Gorce Drive home where he has lived since 1999. “The slides, equipment, traffic, and crowds would permanently change the neighborhood.”
Simring was disbarred in 2009 after pleading guilty the prior year to one count of conspiracy to commit mail fraud and money laundering for his role in an embezzlement scheme tied to billionaire Ed Okun.
It’s unknown why the city didn’t pursue litigation over the law after it directed staff members in March to potentially file a complaint against the state. A source told The Real Deal it may be due to the possibility of the state withholding funds and resources to Miami Beach if it pursues litigation.
Commissioners Alex Fernandez, a vehement opponent of the water park, didn’t immediately return requests for comment.
In its court response, the Fontainebleau said Simring doesn’t have standing –– a common argument over whether someone has proven direct harm and effects beyond those on the general public –– and took issue with Simring’s notion he lives “across the street” from the Fontainebleau.
His home is about a mile from the resort and on a different island, “separated by
multiple bodies of water and countless structures from the Fontainebleau Hotel,” according to the filing.
Simring should have sued the state, not the Fontainebleau, over the legislation, and his claim also isn’t ripe because as he points out in his filing, the city is yet to issue a building permit, the resort said in its filing. The law’s provision is general and doesn’t reference the Fontainebleau specifically, according to the filing.
Sean Burstyn, Fontainebleau’s attorney, called the dismissal motion “conclusive.” The court has yet to rule on the motion.
Simring isn’t giving up.
Fontainebleau’s arguments “don’t sound right to me. … They are not going to win,” he said, adding he plans to file an amended complaint.
He didn’t sue the state due to Florida rules that say challenges to the constitutionality of statutes shouldn’t be filed against the state and only require a notice to the state, which he filed, Simring said. If the court directs him to sue the state or wait until the city issues a project permit, then he will.
As for Fontainebleau’s claim he doesn’t have standing?
“I think I do. My life, my children, my dog and my house will be affected by this,” he said. “You can’t say the only people who can sue over a water park are the people who can see it with their eyeballs. … If I don’t have standing, no one does.”
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