Key West The Newspaper

by Naja and Arnaud Girard

The elephant was back in the room during last Wednesday’s County Commission meeting. Its name is Wisteria Island, but everyone pretended they were innocently debating the issue of restrictive development on offshore islands without ever mentioning the $100 Million + aspirations that Roger Bernstein has for the famous desert island in Key West harbor.

What had occurred was a remarkable exercise in special interest maneuvering followed closely by counter measures made by opponents.

Let us explain.

The County has spent over a Million dollars to hire Keith & Schnars, a renowned land use consulting firm, to review and update the County’s entire Comprehensive Plan. After nearly 4 years the new Comp Plan is in, ready to begin its journey through state bureaucracy and to come back as the law of the land in Monroe County.

But there is a problem. One of the hottest issues in recent years, an attempt to overturn the prohibition of large developments on offshore islands, has not been resolved to the liking of one of the most affluent landowners in the County: Mr. Roger Bernstein of F.E.B. Corporation. Roger Bernstein is battling the federal government over disputed ownership of a desert island in Key West harbor: Wisteria Island.

If Bernstein wins his federal lawsuit he intends to develop the island into a $100 Million plus resort. His hope has been that the Comp Plan amendments would lift the prohibition against expansive development of offshore islands.

He’d hired the best planners, the best lawyers. His own original land planner, Owen Trepanier of Key West, had even been retained by Keith & Shnars as a consultant – certainly a strategic move with a possibility of helping things happen in the desired way. Yet the Keith & Shnars plan for offshore islands came back, not only just as restrictive as the old Comp Plan, but it clarified certain ambiguities that F.E.B. had used to argue that the island should somehow escape regulation.

For instance, there had been some uncertainty about the legal definition of offshore island. In 2010 F.E.B. corporation’s lawyers argued that only a natural island should qualify as an offshore island. Wisteria, as a manmade spoil island, doesn’t qualify and should be, they claimed, allowed to become a resort and marina. Keith & Shnars, however opted for closing the loophole by clearly defining offshore islands in the plan, the way they are currently described in the County’s land use code, as any island not connected to US 1. They also chose to maintain the existing language barring offshore islands from obtaining any designation other than Tier I and from the possibility of receiving ROGO [building rights] transferred from other locations. The adoption of the new Comp Plan would have clearly made any sizable development of Wisteria Island very difficult, if not impossible.

So what to do, what to do.

With an opening push from Commissioner Carruthers and a final nudge into place by Commissioner Rice, it was decided that the Comp Plan would be transmitted without any of the proposed language that involved offshore islands.

The idea of submitting offshore island development to a separate debate, at a later time, was first introduced last November by one of Bernstein’s attorneys, Barton Smith, who purported to be representing another famous offshore island developer, David Wolkowlky, who owns Ballast Key. But ninety-six year old Wolkowky later claimed not to know anything about it and Smith has since admitted that Wolkowsky was not, in fact, his “client.” But apparently just seeing Smith, a high-powered Keys attorney, associated with the famous name of David Wolkowski, cast a dark cloud smelling of private litigation over the Commission. At that very meeting the Commissioners agreed they’d be talking about offshore island policies separately from the rest of the Plan.

SEE RELATED:  DAVID WOLKOWSKI: “God Wasn’t On Duty One Day.”

When the issue comes back, in an uncertain future, Keith & Schnars will no longer be there with the considerable weight of their expertise and their ability to defend their conclusions that offshore island development should not be expanded. It will be a lot easier for Commissioners to cave in to the special interest that has already outmaneuvered them in spite of the $1 Million they spent in ordering an independent and professional review of the laws.

In the meantime, it became apparent that what was left of the plan, after removing bits and pieces of offshore island polices set aside for another day, would have left offshore islands less protected than they are today. [The current plan policy that defines offshore islands as property that building rights may be transferred away from – as opposed to transferred to somehow disappeared.] Commissioner Sylvia Murphy plugged the hole in the damn by convincing her fellow Commissioners to call for a moratorium on applications for new offshore island development and a freeze on any transfer of ROGO units or building rights to offshore islands.

Whether you believe that the hundreds of green deserted islands sprayed across the turquoise waters of the Keys are an invaluable treasure or you believe in the good sense of growing business, real estate development, and property taxes, the debate over offshore islands promises to remain entertaining…

Stay tuned.

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Full Disclosure:  Naja Girard currently holds the position of President of the Florida Keys environmental advocacy organization “Last Stand.”

 

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