A drafting error or oversight in Coral Gables’ zoning code made in 2021 looks like it will allow a developer with property in the 300 block of Malaga Avenue to build an extra story next to existing single-family homes, against the wishes of both the past and present city commission. But what’s more troubling, according to city officials, is that same error could potentially allow for other developments to go nearly twice as high as city commissioners intended.
That’s why the City Commission voted to advance an ordinance on first reading Oct. 13 that would cap buildings on the 300 block of Malaga Avenue at four stories and 45 feet, without additional height from the city’s Mediterranean architectural bonus.
A 2021 rezoning left an opening for greater height
The dispute stems from a 2021 decision to rezone the block from single-family residential to multifamily zoning, with a specific limit of three stories or 45 feet, whichever is less. An oversight in the code, however, left open the possibility of applying the Mediterranean bonus, potentially allowing buildings to reach 77 feet – or nearly eight stories – next to existing single-family homes.
The issue escalated after the city’s Board of Architects granted final approval Aug. 13 for a four-story building with a partial fifth-level enclosed amenity deck. The project received approval using the Mediterranean bonus.
Representing Malaga 300 LLC, attorney John Lucaks argued that the owner had relied on the city’s existing rules and approvals. His colleague, attorney Mario Garcia-Serra, said the owner had spent $3.7 million on project development and should be allowed to proceed under the approvals already granted.
‘We would respectfully request that there be a clarification that this particular text amendment being considered not envelop (300 Malaga LLC) or otherwise compromise its zoning entitlements and the Board of Architect approval that has been received, so to amend the ordinance to include a savings clause that nothing in the ordinance shall apply to any development for which the Board of Architects (already) granted approval,” Lukacs said.
This is really about property rights, vested rights. The city is very aware of how important ensuring everyone’s property rights is,” Lukacs said, in a thinly veiled nod to his view that the city could be in legal peril if it went against his client.
“We have a project that’s approved. We feel that project is vested,” Garcia-Serra told commissioners, asking them to preserve the owner’s existing zoning entitlements.
The lawyers cited a 2015 opinion by former City Attorney Craig Leen, which stated that amendments to city codes generally apply to pending applications, except those that have received final Board of Architects approval, unless the commission directs otherwise. They argued that the August approval established vested rights before the city moved to correct the zoning language.
Lago and Anderson point to the original 45-foot limit
Mayor Vince Lago and Vice Mayor Rhonda Anderson pushed back, saying the commission’s intent in 2021 had been clear: buildings on the block were not to exceed 45 feet.
Lago played a recording of the 2021 meeting in which then-Vice Mayor Michael Mena explicitly called for a 45-foot cap across the block. Lago said the developer understood the commission’s intent but had identified an opportunity created by the drafting error.
“It’s pretty clear what the intent was on the commission (in 2021),” Lago said, “An error got us to where we are today. The applicant saw the opportunity, knew what the intent was.”
Lago said he the commission were in a bit of a conundrum, cauight between not punishing the property owner while also looking to respect the residents who live on the block and who have expressed concerns over this property being able to see onto their property.”
Anderson was equally emphatic. “Nowhere in that discussion did it say plus med bonus,” she said. “Nowhere. The cap was 45 feet.”
Exemption could leave 77-foot development possible
Commissioners also expressed concern that exempting the already-approved project could allow the owner to return with a redesigned building reaching 77 feet, or sell the property based on that development potential.
City Manager Peter Iglesias warned that if the property were excluded from the corrective ordinance, the owner could seek to build to 77 feet. The city’s zoning director confirmed that interpretation could be pursued under the existing code, although the city could dispute the owner’s position.
The debate was notable for the degree of agreement among commissioners, who rarely align so completely on development disputes. They supported correcting the zoning language while grappling with the legal risks of changing rules after a project had received approval.
The property owner’s attorneys made clear they intend to defend their client’s position. They maintained that the city can clarify its rules for future projects but should not impair rights they believe have already vested.
With a second reading still ahead, commissioners and the property owner are likely to meet in the interim to explore a resolution.
Author: Coral Gables Gazette News Staff
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