The Delray Beach City Commission has decided not to settle a lawsuit by one of its best-known residents.
William Himmelrich owns the popular Old School Bakery. With a partner, he also owns the two properties on Atlantic Avenue just east of Old School Square. Himmelrich and David Hosokawa bought the roughly 0.6 acres for a combined $7 million.
In 2015, the commission unanimously limited buildings on East Atlantic Avenue to three stories. Himmelrich and Hosokawa had not submitted development requests for something taller, but they filed a Bert Harris claim. The owners contended that the commission had illegally decreased the value of their holdings. The 150-day cooling off period that the Bert Harris Act requires passed, and they filed a lawsuit.
The commission met in executive session—closed to the public—on Sept. 4 to discuss the litigation. An ordinance that would have settled the lawsuit by exempting the properties from the height limit passed two weeks ago on first reading. Commissioners Ryan Boylston, Adam Frankel and Shirley Johnson approved. Mayor Shelly Petrolia and Commissioner Bill Bathurst dissented.
Tuesday night, however, Boylston switched and the settlement proposal failed by one vote.
“I didn’t feel confident that this was a one-off,” Boylston told me.
He meant that, as he saw it, the settlement wouldn’t necessarily have prevented other property owners from seeking the extra floor.
Given the commission’s vote, attorneys for the city will seek a hearing for their motion to dismiss the lawsuit. Delray Beach argues that because Himmelrich and Hosokawa had not applied for a project higher than three stories, the new rules didn’t take anything.
The litigation has a small-town feel. Himmelrich is a near-beloved figure in Delray Beach. He donates to campaigns. Himmelrich gave Boylston $1,000. Commissioners who opposed the settlement like him personally.
“I wish we could sit down with Billy and work out a plan for that whole block,” Boylston said.
But the 2015 height limit came after many hearings that showed strong public support. If settlements don’t bring certainty, what’s the point? Going to court is always a risk, but this one appears to be an acceptable risk.
Duplex issue postponed
Today was supposed to be when the Boca Raton Environmental Advisory Board heard the application for a beachfront duplex near Gumbo Limbo Nature Center. For the third time, however, the hearing has been postponed.
Delray Beach-based Azure Development wants to put the four-story project on the 0.41-acre site—2600 North Ocean Boulevard. The developer needs city approval to build east of the Coastal Construction Control Line. Almost all of the property is eastward of the line.
The project was to go to the board in August. That didn’t happen, so the date became September. According to the city, the latest delay is because the developer submitted changes two weeks before the scheduled hearing. An Oct. 5 email from Development Services Director Brandon Schaad to the engineering firm in Vero Beach refers to “additional changes at the 11th hour.”
Four days later, Schaad emailed back to offer three options: proceed without the revisions, submit the changes and ask to postpone the hearing or submit the changes and let the staff figure it out. The developer chose the last option. Three days later, on Oct. 12, Schaad emailed to say that the changes “are clearly significant and require proper analysis before city staff can provide a fully informed recommendation to the (Environmental Advisory Board), which can then conduct its public hearing.”
Schaad said the city would review the application “as expeditiously as possible” and reschedule the hearing.
This project and a four-story private home proposed two lots to the south—at 2500 North Ocean—have drawn attention because it’s been many years since someone built on the ocean in Boca Raton. The city famously bought up much of the beach four decades ago. At one point, the Greater Boca Raton Beach and Park District inquired about buying the two lots. The price was too high.
No hearing has been scheduled for 2500 North Ocean. In December 2015, the city council granted the owner’s appeal for a zoning variance. Scott Singer, then a city council member, joined the 4-1 vote for the variance. The issue became an issue in Singer’s mayoral campaign in August against Al Zucaro.
Costello and the new CRA
There probably will be no Christmas cards between Delray Beach Community Redevelopment Agency Director Jeff Costello and City Commissioner Shirley Johnson.
During Tuesday’s special CRA meeting, Johnson verbally flayed Costello and made a motion to fire him with cause. She got no takers. Johnson also criticized her six colleagues on the CRA board.
Johnson implied that only she was thoroughly reading the consent agendas, lists of items that the CRA board approves en masse at Costello’s recommendation. That drew a rebuke from appointed board member Angeleta Gray, who ran Johnson’s successful 2017 campaign. When City Commissioner Bill Bathurst said the board should establish “benchmarks” by which to evaluate Costello, Johnson said, “You’re mocking me.”
Though there seemed little chance before the meeting that Johnson would prevail, she didn’t hold back. If the board members didn’t fire Costello, Johnson said, they might as well return to the “dysfunctionality” of the appointed board the city commission replaced in April.
Johnson said Costello’s predecessors—Chris Brown and Diane Colonna—“made great progress and moved on. Firing Costello would “right a grievous wrong,” namely the previous board promoting Costello in 2014. Johnson said he has created “a culture of fear” among CRA staff members and that morale is “low.” Johnson did not cite specifics to support her claims, aside from what she characterized as three recent, unhappy meetings between her and Costello.
Everyone else was measured. Adam Frankel declined to fill out the evaluation form, saying, “I don’t have many complaints.”
Ryan Boylston said to Costello, “You haven’t had a lot of consistency.” There have been five city managers since 2014 and the CRA board shift. With things more stable, “A year from now, if you’re not doing well, it will stand out.”
Mayor Shelly Petrolia ran the meeting well. She said, “I’m at a loss that we would consider removal (of Costello) at this point.” She noted that Costello is “playing off the old game,” when the board was independent. That board wanted the CRA to focus on buying property. The commission/board wants projects completed.
Petrolia made the important point. The commission can’t make any more excuses about the CRA because the commission has become the CRA. When CRA attorney David Tolces said Costello’s formal evaluation would be due in January, Petrolia said that would be too soon and suggested May. Others agreed.
Though some commissioners had hinted that the independent CRA board might return soon, Tuesday’s discussion showed that this setup should remain for the near term. Commissioners have given Costello the guidance—give regular updates, improve communication, finish projects—for how he can succeed or fail.
Last August, Boca Raton approved Mizner 200—as the developer called it then. The project became The Monarch and now is Alina. In addition to new names, the project has a new amendment to the development agreement that the planning and zoning board will hear at tonight’s meeting.
Alina’s 384 luxury condos would replace the 246-unit rental complex called Mizner on the Green, across Mizner Boulevard from Royal Palm Place. Elad Properties wants to build the project in two phases. First, 140 condos would replace 115 rentals. The other 244 condos would replace the remaining 131 rentals. Alina’s design, however, envisions a unified project.
According to the staff memo, Elad proposed other changes. There would improvements along Mizner Boulevard at the southern end of the project, where it comes close to the existing Townsend Place, and more landscaping. Alina would have valet service and better crosswalks. The full streetscape pan, however, will be finalized when Phase 2 is done.
Elad proposed this “phasing” in January. It seems unusual that it took so long to reach the planning and zoning board. The proposal would go next to the city council, likely next month.
Ocean Breeze update
Greater Boca Raton Beach and Park District Chairman Bob Rollins wants to schedule another meeting between his board and the city council in November. But Rollins isn’t sure that by then the district will have all the information the city wants on the former Ocean Breeze golf course.
One number would be the district’s request—if the district makes it—for the city to share the cost of turning Ocean Breeze into Boca Raton National. The district can’t decide on the request until the district’s architect firms up the renovation price. Rollins said the cost could be between $9 million and $12 million. The district is paying to buy the land, with the city underwriting the bonds.
In other Boca Raton developments, Rollins said the district might buy the home on the northeast corner of Second Avenue and Jeffrey Street, where Jeffrey dead-ends. The district could use the site for a golf shop, since the priority is opening the course, not putting up buildings.
Rollins said the owner wants $850,000, though the appraisal is $660,000. There’s always eminent domain, but those cases never are certain and Rollins said the architect considers the site important in the design of the course.
The supposed point of closing Boca Raton’s current municipal course out west and creating a new one in the city’s north end is to have more people play. Boca Teeca, through which the course will wind, is a faded, mostly condo community. So Rollins said the beach and park district will work with residents on “entry landscaping” at 2nd Avenue and Yamato Road.
Widening Second Avenue also might be necessary if Boca Raton National becomes very popular. Boca Teeca residents opposed previous efforts to widen the road, but the new course amounts to a massively subsidized community improvement. That attitude might change.
Via Mizner on the agenda
Last month, after the Boca Raton Planning and Zoning Board voted 4-3 to recommend that the city council deny the amended plan for Via Mizner Phases 2 and 3, I wondered whether developer Penn-Florida would seek to change the plan or go to the council. Now we know.
Phases 2 and 3 are on Monday’s agenda for the council, acting as the community redevelopment agency. Parking was the main issue at the planning and zoning board and will be for the CRA.
Penn-Florida has a lot at stake. This is a $200 million project, and the company is prepared to start soon on the underground parking garage. That work can’t start unless the CRA approves the new plan. Despite the planning and zoning board vote, the staff recommendation is for the CRA to approve the plan.
Medical, marijuana update
Later on Monday, at its workshop meeting, the Boca council will get an update on medical marijuana.
In 2016, voters amended the Florida Constitution to allow marijuana dispensaries, but the Legislature allowed them to set up wherever local governments allow pharmacies. The council first imposed a moratorium and then banned dispensaries but agreed to revisit the issue in a year. That year expires Oct. 24.
Previous council members worried that the rules could allow too many dispensaries. With the council having changed in the last year, sentiment may have shifted.