Boca Blows Off Lawsuit and a Precinct-by-Precinct Breakdown of Election Numbers

Boca Raton has just told the largest property owner in Midtown to stick it.

Who made that decision?

Friday was the deadline for the city’s response to the Bert Harris claim that Crocker Partners filed last April. Crocker, which owns Boca Center and other Midtown properties, seeks $137 million in damages. Crocker contends that the city council’s decision eight months ago to pursue a “small area master plan” for Midtown rather than set rules for redeveloping the section east of Town Center Mall and south of Glades Road.

So late on the deadline day, the city’s outside counsel sent a letter telling Crocker that Boca Raton doesn’t think the company has a valid claim. Crocker Partners Managing Partner Angelo Bianco told me Monday that Crocker will move ahead with its lawsuit.

Under the Bert Harris Act, 150 days must pass before a litigant actually files a lawsuit. The claim that Crocker filed in April was the company’s intent to sue if the city and company couldn’t resolve their differences.

The law includes that 150-day period as a means to avoid litigation if possible. Yet Bianco told me that the city never contacted him after he filed the claim.

Who made that decision?

In Florida, city officials—elected and appointed—can meet in executive session to discuss litigation. Reporters and members of the public can’t attend. It’s an exception to the state’s open-meetings law. The meetings are designed to brief elected policymakers and get guidance. Normally, the city manager, city attorney and outside counsel attend with the council members or commissioners.

Executive sessions, however, must have public notice. Delray Beach regularly includes these so-called “shade meetings” in the city commission’s meeting list under “Agendas and Minutes.” According to a city spokeswoman, Boca Raton has held no such meetings on the Midtown Bert Harris claim.

Nothing prevents city attorneys and city managers from speaking with elected officials one-on-one about litigation to get direction on how to proceed. Nothing from those conversations, though, would be on the record. Nor would there be the group dynamic and exchange of ideas that attend an executive session.

The letter to Crocker says the company has no claim—and thus cannot seek damages—because the city council has not set rules for Midtown on number of residential units, building heights and other issues. Crocker contends essentially that the failure itself illegally harms the company. Boca Raton designated Midtown for Planned Mobility Development in 2010, and Crocker believes that the city should have set rules a long time ago.

Perhaps the city’s position will prevail. But Boca Raton just lost its motion to dismiss a related lawsuit from Crocker on Midtown and continues to oppose Crocker’s effort to depose city council members. The council did meet on July 24 in executive session to discuss that lawsuit. Boca Raton puts such items in the “Public Notices” section of the city’s website.

I asked council members on Monday if they had any involvement in the city’s response to Crocker’s Bert Harris claim. None responded, though the Rosh Hashanah holiday might have been a factor.

Boca Raton faces a new Bert Harris claim on the council’s denial of a downtown senior living facility. The two claims combined could seek almost $250 million. Given what’s at stake, it would be nice to know who’s making the decisions on such litigation—and why.

Note: There are two Midtown items on Wednesday’s Boca Raton City Council agenda, but they don’t relate to the major issues in the Crocker Partners legislation. They deal with what uses the city would allow under that “small area master plan.”

Haynie hearing today

Susan Haynie

Former Boca Raton Mayor Susan Haynie’s motion to dismiss the seven public corruption charges against her gets a hearing at 3:30 this afternoon.

Haynie argues that the charges are vague. Example: one of the counts is for perjury, but Haynie claims that the prosecutors haven’t specified what untrue statement she made during an interview with an investigator for the Palm Beach County Commission on Ethics.

Haynie’s attorney, Bruce Zimet, said he expects that Palm Beach County Circuit Court Judge Glenn Kelley will issue his ruling today. I will report on the outcome of the hearing in my Thursday post.

Premature victory lap

Kathy Cottrell began celebrating victory in the Aug. 28 Boca Raton City Council race even though that victory wasn’t certain.

Oops.

A photo and a video show Cottrell acting on Election Night as if she had won. Celebrating prematurely with her were council members Andrea O’Rourke and Monica Mayotte. O’Rourke had endorsed Cottrell and campaigned heavily for her.

When regular counting ended, though, Cottrell led Andy Thomson by just 35 votes. Anyone familiar with the basics of state election law, however, understands that a margin of less than 0.5 percentage points triggers a machine recount. If the margin then is less than 0.25 points, a hand recount follows.

Obviously, being ahead by 35 votes beats trailing by 35 votes, but totals can shift more than once during recounts. In a 2008 Palm Beach County judicial race, the eventual winner went from leading after the Election Night count to trailing after the two mandatory recounts to leading after a count of misplaced ballots.

Nevertheless, a Cottrell campaign official told the crowd at The Irishmen pub that while the recount was coming, it wouldn’t matter because there weren’t enough ballots in play “to make a difference.” Cottrell then gave a victory speech and posed with Mayotte and O’Rourke.

After the recount, Thomson won by 32 votes. Boca Raton politics now has its “Dewey Defeats Truman” moment. That headline on an early edition of the Chicago Tribune presumed that challenger Thomas Dewey had beaten President Harry Truman, based on early results. Truman eventually prevailed.

And the precinct-by-precinct totals

The precinct-by-precinct totals in that Boca council race reinforce how close it was.

Thomson won 18 precincts. Cottrell won 19. Thomson generally did better in precincts west of I-95, but not exclusively. Cottrell generally did better in precincts east of I-95 but not exclusively.

Examples: Thomson carried precincts at Ascension Catholic Church in the north end on Federal Highway and Grace Community Church on Camino Real near downtown. Cottrell won precincts at the Spanish River Library and Sugar Sand Park.

Not surprisingly, Cottrell won big in the Golden Triangle near downtown. O’Rourke lives there. Also not surprisingly, Thomson had big margins in Broken Sound Club, where voters may not be sold on the idea that the city council has sold out downtown residents.

Turnout was about 30 percent, double that of a typical mayor’s race in March and almost triple that of a March election without a campaign. Thomson acknowledged Monday that turnout was key for him. Thomson pitched his campaign to a wider range of voters than Cottrell did.

Third candidate Tamara McKee got 12 percent. There’s no reliable guess as to how the Seat 4 race would have come out if Thomson and Cottrell had been the only candidates, just as there’s no way to tell whether Thomson would have beaten O’Rourke head-to-head in 2017 if third candidate Emily Gentile had dropped out.

Thomson said Monday that he’s concentrating on the budget as he prepares for the first round of council meetings, which will take place Wednesday. The first budget hearing is on Thursday.

More precinct numbers

Scott Singer and Al Zucaro

Precinct totals also reinforced the rout that was the election for Boca Raton mayor between Scott Singer and Al Zucaro.

Singer lost just one precinct—at St. Gregory’s Episcopal Church. It’s home to the same Golden Triangle voters who backed Cottrell heavily. As publisher of the BocaWatch website, Zucaro had backed Cottrell.

But the margin was just 267-193. In the Broken Sound precincts, Singer got roughly 10 times as many votes. And there are two precincts at St. Gregory’s. Singer won the other. Even in Zucaro’s supposed stronghold, his support was underwhelming. As in the city council race, turnout was about 30 percent.

Singer told me that his immediate priorities would be “continued support for our schools” and resolving issues between the city and the Lake Worth Drainage District. The agency has drawn criticism for its program of basically clear-cutting along canals.

And now a respite…

It will come as a relief to some Boca Raton residents that the city has no scheduled election until March 2020. Singer and Thomson will be running for full, three-year terms. O’Rourke also will be on the ballot.

Regarding turnout, that March 2020 election will coincide with the state’s presidential primary. There likely will be a large field of Democratic candidates, which could boost turnout among those voters and thus drive the city numbers far higher than the usual March turnout.

Delray Beach also has no election scheduled for 2019. Commissioners Bill Bathurst and Shirley Johnson will be on the ballot.

Delray schools workshop

There has been much talk recently about the problem of too many students attending Boca Raton schools. Delray Beach has the opposite problem, and at tonight’s workshop meeting the city commission will discuss it.

Delray Beach identified the issue as a priority nine months ago, forming a 10-member committee to work with the Palm Beach County School District. The city has hired a consultant, Greenway Strategy Group, who has compiled school profiles and ideas and would get $40,000 for the next phase of the project.

Basically, the city wants to make Delray Beach schools more appealing. Nearly 130 students from Delray attend Don Estridge High Tech Middle in Boca Raton. Meanwhile, Carver Middle in Delray is under enrolled. The consultant recommends remodeling Pine Grove Elementary and adding programs.

League of Women Voters Talk Amendments

On Monday, the Florida League of Women Voters announced a campaign to defeat constitutional amendments 1 and 5 on the November ballot.

Amendment 1 would add $25,000 to the homestead exemption for houses valued at $100,000 and higher. The league estimates that it would cost cities and counties nearly $700 million statewide. Boca Raton would lose $1.7 million and Delray Beach $1.2 million. Amendment 5 would require a two-thirds vote of the Legislation to impose or raise taxes and fees.

And in Memorium

It’s been 17 years since 9/11. Yes, it still burns.

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