“Devious” Developers Score on Offshore Island Development, 2016

Photo: Google Earth
Photo: Google Earth

by Arnaud and Naja Girard…….

Remember, the first time you drove down US 1 all the way to Key West? We would like to take you from that glittering vision of hundreds of little green islands suspended over endless turquoise waters and sit you down in the boardroom of the County Commissioners who are in charge of protecting that whole magical expanse called the Florida Keys.

Few issues in Monroe County have stirred as much passion and cloak and dagger plots as the development of those offshore islands.

According to a 2015 report by biologist Curtis Kruer there are over 1,900 acres of privately owned offshore islands in unincorporated Monroe County. But while a 7,500 sf build-able lot on Key West’s Sunset Key sells for almost 4 million dollars, a similarly sized piece of land with no building permit allocation on nearby Wisteria Island would be almost worthless.

This week, Barton Smith, attorney for the would-be developers of Wisteria Island went, once again, before the County Commission.

“If he likes it, I don’t.” exclaimed Commissioner Sylvia Murphy, who became suspicious after Smith said he supported her intention to leave the current protections for offshore islands undisturbed. “I know how devious he can be. Therefore, if he likes it, I don’t,” said Murphy.

Last year, Smith was fighting a Comp Plan amendment that would have guaranteed a solid prohibition of the transfer of density and building rights to offshore islands. He came before the Commissioners pretending to represent the revered owner of Ballast Key, then 96-year-old David Wolkowsky. Smith won that battle; the decision was stalled. But later that week in a video interview with The Blue Paper, Mr. Wolkowsky said he had not hired Smith to represent him. Apparently, Smith’s undisclosed principal was in fact the controversial Roger Bernstein of Wisteria Island.

So, past the smoke and mirrors, what really happened this week to the development potential for offshore island owners?

It’s actually quite simple. In theory offshore islands can support only one house per ten acres. But as the public realized when Roger Bernstein tried to develop Wisteria Island, there are 101 tricks to getting around that density restriction.

Mr. Bernstein, for example, claimed his island was not really an “offshore island” because it was a manmade spoil island. Like many Florida Keys owners, he also claimed his property should not be “Tier I” because the vegetation was “disturbed” or full of “invasive” instead of “native” vegetation.

His team of lawyers and experts also pointed out that it was only fair that Wisteria should be zoned high density “mixed-use commercial” since his neighbors on Sunset Key had been allowed to develop a high-density resort. He negotiated his very own special “sub-area policy” that would have turned a density of two houses into a resort with 35 luxury homes, 85 hotel rooms, a restaurant and a marina.

At the time, it was quite obvious that Commissioners Rice and Carruthers were supportive of Bernstein’s plans for Wisteria Island and Commissioner Neugent seemed to be leaning that way. [The development failed only after The Blue Paper discovered that in 1924 U.S. President Calvin Coolidge had reserved Wisteria Island for use by the Navy pitting Bernstein against the U.S. government in a battle over ownership that remains unsettled to this day.]

There is no guarantee that Mr. Spottswood, another local multi-millionaire developer, who owns the Coupon Keys, or Pritam Singh, who owns a large portion of Cook’s Island, couldn’t successfully push similar arguments through with approval by those same Commissioners. If successful, they could drastically increase the building density of their islands.

The risk of opening the development floodgates for offshore islands appears to have been grossly underreported by county staff. Tavernier Key, for instance, appears on the county’s spreadsheet as having zero upland area yet the island is currently advertised for sale with 17 acres of upland.

Most offshore islands are designated Tier I and as such cannot become receiver sites for the transfer of development rights [more density] or building rights [ROGOS’s]. But, if the forest burns on Tavernier Key will it qualify for a change in Tier? Bernstein let Wisteria Island burn for 3 days. “Whatever habitat they had there last week they have a lot less now,” chuckled Commissioner Rice at the time.


Sunset Key’s forest burned twice, completely. Not even its rookery of federally endangered Roseate terns could stop the Key West government from signing the development agreement with Pritam Singh.

In 2007, in Key West, allegations of corruption over development of Wisteria Island angered residents to such an extent that voters, through a sweeping referendum, stripped the City Commission of its power to annex the island.

And this is where the idea of prohibiting the transfer of building rights to offshore islands comes in. The County doesn’t have enough building allocations [ROGO’s] to fill all the allowable density in the Keys. In order to swiftly push their project forward developers must purchase development rights from other property owners and transfer them to their island.

The proposed Comprehensive Plan amendments supported this week by Florida Keys Environmental Fund, Audubon, and Last Stand would have prohibited transfers of development rights to offshore islands regardless of particular land use designations.

According to the planning director offshore island owners can apply to change their zoning district, their FLUM, and/or their Tier [from Tier I to Tier III or III-A] which, if successful, would open them up to the possibility of transferring development rights to their island.

“I don’t see any difference,” said Commissioner Kolhage during the meeting, “property owners can apply for Tier and zoning changes but can’t anyone come in and apply to change the language we put in the Comp Plan as well? How is it different?”

According to Julie Dick, the attorney who represented the Florida Keys Environmental Fund and Last Stand, the difference is absolute.

Decisions about changing zoning districts, FLUM designations, or Tier designations are taken on a case by case basis with the County Commissioners sitting in a “quasi-judicial” capacity. Like a Judge, they apply the law to the facts and of course those decisions are appealable to the courts. An unsatisfied developer can appeal to a Circuit Judge for a different Tier designation denied to him by the Commission and if unsuccessful there, he may continue on to the appeal court.

The Comprehensive Plan, however, is a legislative document adopted by the BOCC sitting as the County’s legislative body and the law is generally not appealable once officially adopted [unless it frustrates some fundamental constitutional right.] All judges will be bound by a law that says offshore islands cannot be receiver sites for the transfer of ROGO’s or development rights regardless of an offshore island owner’s ability to obtain a more desirable zoning or Tier designation. [Of course, an owner could attempt a constitutional challenge or try to amend the Comp Plan, as Commissioner Kolhage stated, but the amendment cannot be inconsistent with the rest of the Plan’s policies and the Commission is under no obligation to oblige.]

After an awkward discussion about the “devious” Mr. Smith, Mayor Carruthers resumed by summarizing the majority’s position: “It’s simple. Any action that we take today introduces new criteria. Then that’s the criteria that is blocking development as opposed to criteria that’s been on our books for decades.” [Any new language in the Comp Plan could potentially reset the clock for takings claims.]

Attorney Julie Dick argued that simply setting up a general policy prohibiting developers from transferring development rights and ROGOs to an offshore island wouldn’t reasonably equate to a takings claim because each property owner would still be able to build to their zoned density [one house for every 10 acres if OS – Offshore Island zoning] by competing for new ROGO allocations like any other property owner.

In the end, only Commissioners Murphy and Neugent supported the inclusion of the language expressly prohibiting transfers to offshore islands.

Roger Bernstein lost his federal appeal before the 11th Circuit nearly four months ago and the time to request review by the U.S. Supreme Court has now expired. A development on Wisteria Island is not going to happen anytime soon. But any private offshore island owner who follows the same path, applying to change their Tier designation and negotiating a special “sub-area policy” has a shot at developing their island by transferring development rights and ROGO’s and the BOCC members will not be able to point to a solid policy to keep that from happening.

It was a sad day for the Keys.


This article was updated on July 22, 2016 at 9:15 pm.

12 thoughts on ““Devious” Developers Score on Offshore Island Development, 2016

  1. I am one of the people who first saw Key West, in 1973, and loved every bit of what I saw starting on US 1 from the entrance into Monroe County. Will admit the original 7 mile bridge was very scary. The problem with growth is often it is so slow that it is not noticed. But in the last few years what was once a historical one of a kind city called Key West has turned downright ugly. Now the 100 to 300 block of Duval St has become something to avoid as it seems to have lost all of it’s charm. Countless bars and restaurants have grown from small buildings expanded by tarps and umbrellas into huge noisy nasty looking bars. From walking down Caroline St to Duval a few weeks ago I looked at the tables sitting as close to Caroline and Duval as they could get. Yes outside but the ugly part was not visual but audible. At that spot we were blasted by the music from several bars to the point of you could not hear the one that was at that corner. Looked at my wife and asked who in the hell would pay for a high priced meal and listen to such a racket and enjoy anything. Thankfully after 42 years and over a hundred visits to KW we found far better places to enjoy a meal.

    My point here is your uncontrolled growth has destroyed your island. Developers are only interested in making more millions by any means they can and when finished will walk away richer and care less as to what they destroyed. They have found ways to get your commissioners and mayor to grant them everything they ask for. Can only assume bribes. Hope you’re all happy with the results because tourists are not.

    Only good thing that happened is Wisteria island got saved. Sadly after 40 years we are now looking for better beach towns to visit. Yes enjoy Fantasy Fest because only KW allows such an event. The future of the Keys does not look bright as one by one it gets destroyed. Add to that the danger level. In most towns the danger is from the people of the hoods but in KW it is the KWPD as they can murder anyone and get away with it. Corruption destroys all towns.

  2. Great trip down memory lane. I remember riding down old US 1 and across the old bridges, all the way down to Key West, and back. Wild, with 18-wheeler coming the other way, across old Bahia Honda Bridge and old Seven Mile Bridge, with maybe one-foot between my car and the bridge railing, and between my car and the 18-wheeler, and between the 18-wheeler and the other bridge railing. That was before side mirrors on cars .

    What opened the flood gates to development in the Florida Keys was the new, bigger waterline coming down from the mainland, and widening the road and building the new, wider bridges. The old waterline was maxes out; a new house built could not tap onto it.Subdivisions were cut, canals were dredged, lots were sold, but there was not new housing until the new waterline was up and running.

    This ex-real estate lawyer from Alabama thinks Attorney Julie Dick is right. You can’t have taken from you what is not yours by law already.

    So perhaps I should toss in what somebody three sheets to the wind I didn’t really even know told me in a local sports bar where I was watching a boxing match and not hardly paying attention, so perhaps I misheard that the reason Heather Carruthers leans toward keeping developers happy is she has her sights set on a higher office, maybe in the Florida Legislature, maybe in Washington, D.C. And to go that route, she needs the backing of people like Roger Bernstein, the Walsh family, the Spottswood family, and Pritam Singh – local well-heeled real estate developers.

    Perhaps I also should toss in, while the Bernsteins were trying so hard to get Monroe County to approve its dream of turning Wisteria island into Sunset Key Deux, Heather had a birthday party on Sunset Key, which was owned by the Walsh family, who also owned, and still own, the Westin, and were in partnership with the Bernsteins making the Sunset Key Deux dream come true.

    And perhaps I should toss in, the person behind all of it, the field general for the Bernsteins and the Walshes, who was known to the county commissioners, the county planning board members, and the county growth management department, was Jim Hendrick, and still is Jim Hendrick.

    Hendrick was the field general for the foreign developers who tried to sell Peary Court to Key West for gobs of money, and for those developers when they later sold it to a private developer, after the referendum for the city to buy it was soundly defeated.

    In a past life, Hendrick was the Monroe County Attorney. Some time after he had moved on into full-time private practice of law, he was alleged to have facilitated the bribe, by developer friends of his, of a county commissioner named Jack London, who died before he could be prosecuted, along with Hendrick, by the US Attorney. By then, the statute limitations for bribery had run, but not the statute of limitations on witness tampering and conspiracy, for both of which federal crimes Hendrick was convicted in the federal courthouse on Simonton Street, in Key West, perhaps in 2007..

    Hendrick was put on probation and was disbarred by the Florida State Bar. Then, he started a new company, Critical Concern, Inc., to advise developers like Roger Bernstein how to developer Wisteria Island. Hendrick chose that name for his company to ride on the entire Florida Keys having been declared an area of critical concern by the Florida Legislature, which is why we now have ROGOS and fierce competition for them.

    Another of Hendrick’s clients was,and is, Pritam Singh, who has made a vast fortune developing real estate in the Florida Keys. Pritam’s first pot of gold strike in Key West was Truman Annex, which he bought cheap from the Navy after the city had declined to buy it. Pritam also bought Tank Key from the Navy, which he later sold to the Walshes. That’s now Sunset Key. City mayor Jimmey Weekley had introduced Hendrick to Singh, and Hendrick advised Singh re Truman Annex and thereafter. You want to get an earful, talk to any subsequent city commissioner or mayor about Truman Annex.

    Perhaps I also should toss in, after Hendrick was disbarred but still had his consulting business (Critical Concern, Inc.) in the law offices where he had worked for some time, a young lawyer named Barton Smith rented space in the same law offices, and Smith was tutored by Hendrick in what Hendrick knew so well. In fact, it was Hendrick who actually represented David Wolkowsky, and had represented him for many years, who sent Smith to the county commission meeting to speak on behalf of Wolkowsky and his offshore island. Hendrick had told me several times of his going out to Balast Key with his good friend David Wolkowsky.

    Now about those trees on Wisteria Island. There was a time when the Australian pine forest there was thick and green. Then, the trees looked as if they had been poisoned. Most of them died circa 2005. The pines that survived looked sick. It was blamed on Hurricane Wilma’s tidal surge, which, strangely, did not kill Australian pines on Key West or up the keys. I heard several reports of people living on Wisteria then, and on boats moored near the island, having seen an airplane fly over the Wisteria and a cloud of something came out of it and descended on the island. It was said by Vietnam veterans that the result, the dead pines, reminded them of Agent Orange.

    I have an aerial photo in my photo gallery of Wisteria when its pines were thick and green, and a later aerial photo.

    Google imagine Wisteria Island.

    And then google image Barton Smith.

    Sometimes pictures speak for themselves.

    Lastly, it was Naja Girard who dug up the ancient legal history on Wisteria Island, which led to the U.S. Bureau of Land Management laying claim to it, and to Roger Bernstein, I heard, calling Naja a witch.

    Sloan Bashinsky, write-in KW mayor candidate, Nov 4 ballot

    1. P.S. Spank me, had to get a hand-scribbled message from “the law firm” in a nap dream, to scratch my noggin’ enough after I woke up to remember the fierce defense Heather Carruthers made of Republican state rep Holly Raschein’s Stewardship Act, which had started out with environment in the title, all of which Holly’s Democrat challenger Kevin Diaz had challenged as being perhaps a little too developer friendly? And then, instead of Holly defending her own bill, John Donnelly, of Key Largo, charged in to vigorously defend both Heather and Holly, swamping me with criticism for insisting Holly herself defend Diaz’s charges of her bill. Finally, John said Holly and Heather had written the bill together. We never did hear from Holly, nor again from Heather, did we? About a stewardship bill that started out with environment in its title, but did not end up that way. Stewardship, therefore, of … what? Development? That’s what I kept saying in that discussion. Developers were going to use that bill to their advantage, with help from clever lawyers and land use experts like … Jim Hendrick.

  3. “Offshore Island Development, 2016”

    Hello? What makes you think that anything south of Florida City is not off shore?

    The “Rape” will continue as it does along any coast line. The US Government with all it’s agencies like Fema, NOAA, Military do not have to follow any rules-as -such and Florida Gov. like FWC, Police, BOCC, Skeeter Control, FKAA, Electric, Sewer, Colleges, School Boards, Hospitals….Are they listening to anyone but Money.

    This “Talking Show” continues and let’s scratch others backs for sooner or later the money will disappear for the Government Rice Bowel.

    Notice even KW is reducing manning – what is this world coming to?

    As Ed Swift said at one meeting – ROGO or B-pas are a joke and don’t even think about them meaning anything. WAS HE SO RIGHT ON!!!

    So let the building continue and the need for fresh water will bring RO Plants, the need for more Sewer Plants. The building will bring wind and solar power generation facilities. The tax base will continue to grow for all the GOV Employees and you fill-in the blanks…….

    The next major hit from a storm…if the 42 bridges hold up and we have food and water.
    I would not include a large body bag supply, but most bodies will be lost to the deep blue or with the currents land on Fort Lauderdale beach.

    The Commissioners in the keys try hard but are only Pawns – it is interesting how the money makes boards and Commissioners do things that where unheard of just 10 years ago.

    Thanks for reading my ramble, Is there a real answer to what we want for the investment we thought was right for the government regulated Keys????

    Do as you please and when wrong as for forgiveness….or yell at a commissioner.
    God I love the Keys only thing changes is the date…

  4. They simply want a bigger tax base and the higher the prices go the more tax money it can waste. What can be better than a 5 million dollar home that is used a few months out of a year by the rich as a second home. Very little services required.

    But it is OK KW is not the first or only city destroyed by growth. Sadly it was a one of a kind and soon will be too destroyed to ever recover. I blame it all on corruption and greed. The working class will never own any of it and when they retire will be forced to leave as you can not retire on SS in KW. Only the very poor section 8 residents will get to stay. Even if you make 50 K a year you could not qualify to buy a house in KW.

    I do have memories of what KW was back in the 70’s and even the late 90’s when we lived there. You can not steal them from me.

  5. As I look at the photo, I see the blue-green algae bloom that is proliferating around, and within, the Florida peninsular. It’s destroying ecosystems, as it kills most of the marine life contaminated within the infected areas.

    This toxic invasion has made its way into Lake Okeechobee, as well as many rivers and smaller lakes throughout the state.

    My understanding is that a ‘state of emergency’ has been declared by the governor, while county upon county is forming emergent committees and scientific study groups to identify, diagnose and remedy said threat.

    What is the delay? I am a scientist, I’m certain that a workable solution is possible; as long as the science is not altered for political agreement….The science of it is not the problem. Lack of integrity, ethics, courage and a desire for the truth; seems to be missing.

    Aren’t ‘ethics classes’ taught anymore…???

  6. Thank God for Sylvia. She never minces words! And George too got the idea of not allowing the transfer building rights to offshore islands. Disappointed in a couple of the other Commissioners vote. So the rape of the Florida Keys will continue. Destroying the ambiance and character of the Keys, tourists and many homeowners are finding better places to vacation and live. Waiting for the day when we get our islands back – buildings can be knocked down and destroyed 🙂

  7. We’ve been coming to KW for the winter since the early 90’s. Not wealthy, just a couple who had the foresight to rat-hole some money to be able to come to the Keys for the winter. I’ve watched the politics and associated machinations as well as how the cost of living has skyrocketed and more affordable places to stay have become unaffordable even for winter renters. I have a good deal of sympathy for Conchs and for those who are trying to scratch out a living here. I’ve been holding my breath for years wondering when A&B Lobster House, Schooner Wharf Bar, Turtle Kraals and the rest of the neat spots around the Harbor Walk at KW Bight will be taken over, torn down and high rise million dollar condos be built.

    This upcoming winter will be our last, unfortunately. KW has become too busy, too cluttered, too noisy, too much traffic and too costly to come back anymore. These snowbirds will take the thousands we spend each winter greener pastures on the mainland.

    The one question that has always been on my mind is once the millionaire developers, attorneys, and real estate brokers have completed piling up the high priced domiciles, who’s going to be able to afford to live in the Keys and work at all the places those wealthy buyers will be needing to feed them, entertain them, and serve them drinks?

    1. That is exactly the problem and it gets worse every day. Is no place for low wage workers. If the city will not build them a developer dam sure won’t.

      And we too are tired of the noise. Walk down the 200 and 300 blocks and the music is so loud it hurts your ears. We been going to KW for over 40 years and it has turned ugly. The last few been awful. Other than for Fantasy Fest we can find far better for the money. Only 3 places we will eat at and not about to go into the ear blasting bars in the 200 and 300 blocks. Gas Monkey is the worst and needs to leave. It started the problem few months ago by playing so loud that all the others near them had to turn up music so their customers could hear what they had. Major disaster.

  8. Sadly the Key West of 40 or even 10 years ago is gone forever. Will still be tourists because some never seen it. But for those that seen it 20 years ago will be looking for a better place to vacation. Face reality , your beaches on a scale of 1 to 10 with 10 being best scores in at about a 2 at best. We like Ft Zack the best. Was nicer when the bars were all real buildings, now half are just outdoor want to be bars. Now they are plastic chairs and tables and the bar could be loaded into a rental truck in 2 hours. Hope Gas Monkey has enough gas to leave the keys. The charm was things like Jabours RV, the old houses,Fastbuck Freddies, the trailer park on Simonton and yes even the homeless. By taking away cheap housing you lost what Mallory Square once was before sundown. Piece by piece your leaders have let the charm go away to the point that repeat tourist are looking for better places. The high prices will stop many. Can it be fixed ? NO. Instead of using 12 million on things of value to tourist like repaving Duval, Cheaper parking or clean up the beaches you gave it away to a private landlord that rents to high end workers. Might remind you that 12 million was TOURIST BED TAX. Thanks for stealing it.
    Anyone else remember the benches ? Was nice to be able to sit down and take a break. But NO a homeless person might lay on it. Solution was remove them. Part of it could be returned but much is gone forever.

  9. Well, some of you good people can continue to complain about the demise of what Key West used to be, but if you want to attempt to make a difference and preserve what we have remaining down here and help to curtail development in the wrong places:

    Contact City Commissioner Clayton Lopez, City Planner Thaddeus Cohen, The Bahama Village Redevelopment Advisory Committee and the rest of the City Commission, and TELL THEM YOU DON’T WANT to see the peoples’ public Truman Waterfront Park turned into a housing development and over-developed commercial area. It’s as simple as that.

    1. The people told them NO to Peary Court but did no good, Now taking away 60 boat slips that were cheap. Point is you mayor and commissioners do not listen to the voters. They are interested only in seeing growth and that will only be high end rentals. The dumb asses gave away 12 million that could have created low income rentals. They have property they could have developed. They will do what they want with Truman waterfront.

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