So much for Atlantic Crossing Settlement 1.0
When I spoke to Mayor Cary Glickstein and commissioners Mitch Katz and Jordana Jarjura on Monday morning and early Monday afternoon, all were ready to approve the settlement, which was designed to end the developer’s lawsuit that began in June 2015.
All three, however, noted that before Tuesday night’s meeting they would be asking questions of the city’s special counsel, Jamie Cole, and City Attorney Max Lohman. The lawyers held no executive session – closed to the public – to brief commissioners on the settlement and hear comments. Instead, the lawyers met individually with Glickstein, Katz, Jarjura and Shelly Petrolia.
Apparently, there weren’t enough good answers to those questions. After much griping, the commission postponed a decision. For how long? Maybe until the next scheduled meeting on Feb. 9. Or maybe sooner, if the lawyers can work things out after this crack-up.
From the developer’s standpoint, the main element in the settlement was Atlantic Crossing agreeing to add back an access road to Federal Highway. That road would require four waivers. Some speakers praised the commission for getting Edwards Companies — Atlantic Crossing’s developer — to return the road. Others complained that the road design remains inadequate.
From the city’s standpoint, however, there were other issues. Would there be $500,000, as previously discussed, for improvements to Veterans Park, which would adjoin Atlantic Crossing to the east? What about traffic calming measures that residents of the marina district had sought? What about a roadway and alleys the city would convey. Would the city get them back if the project didn’t get built?
Cole said the settlement didn’t cover those issues. The December mediation session that led to the settlement proposal, he said, covered only the access road. Some of the questions, Cole said, “came up today” — meaning after the lawyers had negotiated.
Commissioners acted poleaxed. “It never occurred to me that the Veterans Park and traffic issues, which were vital, wouldn’t be in the settlement,” Jarjura told me Wednesday. “This is all we can get?” Glickstein asked, rhetorically, at the meeting. “I have no idea which parts fit where, Petrolia complained. “We’re doing this on the fly,” which they were.
In an email Wednesday morning, Glickstein elaborated on his comments. Cole, he said, had presented “an incredibly presumptuous and sloppy settlement proposal, in that it resolved the pending litigation but left wholly unaddressed the myriad of public and commission concerns regarding significant on-site operational issues – both during construction (parking and traffic) and as a completed project.”
Those “operational issues” include traffic and garage collection. Notably, they also include the planned underground parking garage. The area around Veterans Park habitually floods during high tides. In 2014 and 2016, winter rains caused serious flooding. A bad storm surge could leave water in the garage. If that happened, would the developer or the city be liable?
Planning, Zoning and Builder Director Tim Stillings told me previously that construction plans “will need to address how the structure/property will handle water intrusion/waterproofing/water retention.” Those aspects of the project are not part of site plan review, and the city has not discussed them with Atlantic Crossing.
Such matters, Glickstein said, “are typically codified in a developer’s agreement that provides start-to-finish clarity for developer, city staff and the public, and should have been attached to the settlement proposal. What was submitted was a sloppy settlement agreement tied to a 2011 developer’s agreement relating to a different site plan.”
Though frustrated, Glickstein added, “Shame on me for not knowing what we had and didn’t have.” He acknowledged that he didn’t review his notes until Monday afternoon, a process that “led me back to the gaping hole in this. Settlements are intended to provide clarity for the parties, which in this context includes the public. The proposed settlement failed in that regard, and I don’t think it’s asking too much after two years and $400,000 that Mr. Cole would have done a better job with this.”
Despite Tuesday’s outcome, the commission still wants to work out a settlement — soon. Though Edwards Chief Operating Officer Dean Kissos said the company would continue the lawsuit, his statement was tempered. Kissos called it “disappointing to have yet another delay after working in good faith, devoting substantial time and money, to reach a proposed settlement by again providing the city what it requested” — the access road.
As discussion ended Tuesday and everyone filed out, Glickstein said, “We’ll get there.”
Blame game for Atlantic Crossing
So who is to blame for Tuesday’s Atlantic Crossing debacle? Commissioner Jarjura probably came closest when she told me, “I guess I blame all of us.”
Cole, having been the litigator from the start, should have made sure to go over all the issues with the commission. Lohman, who is new to the city, should have scheduled an executive session, given the importance of the case. Such a session might have delayed things, and Atlantic Crossing wants a quick resolution. Now, however, the delay may be even longer. And the commissioners should not have assumed that what they thought was in the settlement actually was in the settlement.
Delray’s city clerk leaving in February
Delray Beach’s sandbox political culture has cost the city a valuable employee.
City Clerk Chevelle Nubin is leaving at the end of February for a similar job in Wellington. Nubin lives in Greenacres, so she will have a shorter commute, but Acting City Manager Neal de Jesus touched on the real reason for Nubin’s departure during his comments Tuesday night.
De Jesus noted that Delray Beach receives an inordinate amount of broad public records requests from individuals, as opposed to those from reporters. In many cases, de Jesus said, the “work products” sought in the emails don’t exist. When city staff can’t find material that doesn’t exist or doesn’t respond quickly enough, the individual attacks the staff. Public records requests go through the clerk’s office.
I oppose efforts by cities to weaken Florida’s public records law. I also acknowledge that some public records requests from residents amount to self-promotion and are absurdly far-reaching. Delray Beach seems to get more than other cities, but Delray Beach also has a political subculture that offers far more gripes than ideas.
De Jesus made clear that he has told staffers to process public records requests as quickly as possible without disrupting the work of the city. Imagine, he said, a mechanic who normally could do a brake job in an hour. If he was continually bothered, it might take three days.
Whatever happens from here, however, Delray Beach’s very competent city clerk will be gone.D
Initial action made toward sober homes
Things did go normally Tuesday night when the city commission approved the first of what officials believe will be several changes to begin regulating sober homes. Other proposals likely will wait until the city’s outside attorney has reviewed Delray Beach’s existing rules and reported on where the city might go next. Mayor Glickstein said Daniel Lauber, whom the commission hired last week, probably would complete his report in three or four months.
Boca to study waterfront land
Despite the lawsuit challenging the waterfront ordinance voters approved in November, Boca Raton is moving ahead with its study of waterfront land.
The goal is to increase public access. During this first phase, the consultant basically will take inventory, documenting the condition of all public waterfront and how much use each parcel gets. The consultant will evaluate the potential for added use, produce maps and offer ways to link the properties, such as a water taxi.
In addition, the consultant will assemble floodplain and watershed maps. That aspect of the study will be crucial, given the rise of sea levels. A city spokeswoman said the report should be ready by mid-to-late February.
Fighting for a hole-in-one
To understand how much developers covet open land in coastal South Florida, witness the fight over who would get the 200 acres that are Boca’s 27-hole municipal course on Glades Road next to the Florida Turnpike.
On Monday, the city council got an update on the three offers, from Compson Associates, GL Homes and Lennar. After all the obligatory pleas from residents of Boca Teeca that the city and/or the Greater Boca Raton Beach & Park District buy the community’s Ocean Breeze course, the lawyers took over.
An attorney for Lennar, which has an option to buy Ocean Breeze but wants to convey it to the city as part of a deal to get the western course, complained that the debate had “devolved.” He means that the council is discussing whether the city could sell the western course to the highest bidder — which Lennar isn’t — and take Ocean Breeze by using eminent domain. That would be the worst outcome for Lennar.
The staff material for Monday’s workshop included a primer on eminent domain from the city’s legal office, though City Attorney Diana Grub Frieser said it was “not an exhaustive analysis” of whether the tactic would work with Ocean Breeze. A lawyer for Lennar cautioned that eminent domain would be costly, lengthy and ultimately unsuccessful. GL Homes argues otherwise.
A lawyer for GL Homes followed up by accusing Lennar of seeking unfair advantage by consulting with the beach and park district. Its board would like to buy and operate Ocean Breeze. To GL Homes, that would amount to a subsidy for Lennar, whose offer is $32 million less than the GL Homes offer. GL Homes presented an appraisal that values Ocean Breeze at $3.2 million, not the $10 million Lennar is using. Lennar contends that the price would amount to a discount.
Not to be left out, a lawyer for Compson accused GL Homes of using “alternate facts” and “substantially distorting” Compson’s offer. A mailer from GL Homes had listed the Compson bid at $47.5 million in large type while noting in small type that the company’s second offer was slightly higher than what GL Homes offered.
A second GL Homes mailer, which arrived Wednesday, compares the GL offer only to the Lennar offer. The mailer notes that $32 million difference and suggests ways that the city could spend the money, such as on “beach renourishement” (sic) and eight other items.
GL Homes wants the council to take its mostly guaranteed $73 million now and worry about Ocean Breeze later. Councilman Jeremy Rodgers expressed support, but Monday’s meeting was a workshop. There was no vote. Council direction was to wait for the beach and park district’s answers to the city’s questions.
For now, the golf course issue is acting as a lawyers’ stimulus program. But the volume is rising quickly over the issue of golf course real estate. A Lennar vice-president called GL Homes “horrible” for “trying to steal our property.” Boca Raton must take care not to turn a potential windfall into a legal brawl.
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