Delray’s Lauzier Under Scrutiny, More Details About the Crocker Lawsuit

Delray Beach City Hall (Photo by Christiana Lilly)

The Delray Beach City Commission will hold a special meeting at 3:30 p.m. Friday to discuss the performance of City Manager Mark Lauzier.

Commissioner Ryan Boylston said he asked for the meeting. Boylston did so because of a meeting the city’s internal auditor had last week with each commissioner. Though many auditors work for the city, the internal auditor reports to the commission, not the manager. Voters approved the position in March 2016, but the commission didn’t hire Julia Davidyan until last August.

Commissioner Ryan Boylston

Boylston told me that Davidyan “brought documents” related to Lauzier’s hiring of a new assistant city manager and “other positions.” Boylston met with Lauzier to discuss the issues, but Boylston obviously came away unsatisfied with the manager’s responses. His questions concern “policies and procedures.”

Notice of the meeting said it concerns Section 4.02 of the city’s charter. That section applies to appointment and removal of the manager. I have no sense at this point that someone will move to fire Lauzier, who has emailed commissioners to ask for individual meetings before Friday. Without such notice, however, the commission could take no action of any kind. Removal requires a 72-hour notice. Friday’s meeting meets that rule.

Boylston said he acted because the commission’s next scheduled meeting isn’t until March 28, because of a quirk in the schedule. There are no elections this year in Delray Beach, but the schedule must presume that the city might have to hold one.

Boylston wasn’t on the commission when it hired Lauzier in late 2017, but he has supported the manager. In a written evaluation last June, Boylston rated Lauzier Exceptional in seven categories and Satisfactory in three others. He made the motion in January to give Lauzier a 4 percent raise, to roughly $245,000. Bill Bathurst and Adam Frankel supported it. Mayor Shelly Petrolia and Commissioner Shirley Johnson voted no.

Last November, Petrolia—with no public notice—made a motion to fire City Attorney Max Lohman. It passed. As an outside lawyer, Lohman wasn’t subject to any rule requiring public notice.

Still, it happened on the night of the midterm election, with most residents distracted. Whatever the content of Petrolia’s case, the city looked bad. Boylston opposed the firing. Whatever might happen with Lauzier, it won’t seem like an ambush.

The Crocker lawsuit details

The thrust of Crocker Partners’ lawsuit against Boca Raton is becoming clearer.

Crocker is suing over the city council’s failure to write development rules for Midtown. It’s the neighborhood from Town Center Mall to Boca Center, with Glades Road the northern boundary. If the city doesn’t write what Crocker considers applicable rules, the company wants nearly $140 million in damages. Crocker is the major Midtown landowner east of the mall.

On Jan. 18, Crocker’s attorney, Henry Handler, deposed Development Services Director Brandon Schaad. I reviewed a portion of the deposition transcript, which the plaintiffs provided.

On Jan. 23, 2018, the council rejected the latest of Crocker’s requests to write the rules. Instead, the council ordered Schaad to craft a “small area plan” for Midtown. No one seemed sure what that term meant, even Councilwoman Andrea O’Rourke, who proposed it.

Schaad hired a consultant to help with the plan. When the work was done, there was no recommendation of adding residential development to Midtown. During the two-plus years of discussion between the city and landowners, the main issue was how much residential Boca Raton would allow in Midtown. Current rules prohibit it.

At one point, Schaad had recommended 500 units, apportioned among the landowners. But the “small area plan” recommended none at all.

Based on Handler’s questions to Schaad, Crocker is alleging that council politics—opposition to development—has driven decisions on Midtown. Crocker clearly believes that the staff is responding by inventing ways to block housing in Midtown.

Example: A draft of the “small area plan” referred to “mixed-use development” for Midtown. That term means a combination of residential, office and commercial. But the final version of the plan referred to “a mix of uses.” Schaad said that description “could” include residential.

Schaad claimed that public forums on Midtown had produced “consensus” on other uses—such as hotels—but not on residential. So it wasn’t included. Handler was skeptical that comment at the forums indicated public opposition to any residential development.

Handler also wondered about City Manager Leif Ahnell’s role in transmitting the now residential-free plan to the council. Schaad said he didn’t have “the background knowledge to explain it. I don’t know.”

Deputy City Manager George Brown, Handler said, called the issue one of “mere semantics.” Handler wondered if it was “substantive misreporting” of what had happened at the forums when Ahnell briefed council members on the plan.

The city’s lawyer objected. “I can’t say,” Schaad said. “I don’t know why the change was made or on what basis.”

Handler kept hitting that point, finally asking Schaad, “Somebody in the city just doesn’t want the city to consider residential, does it, or her?” The city’s lawyer moved to strike the question.

“I have no idea,” Schaad said. He acknowledged, however, what Handler called “consistency” in the plan not including any public comment about possibly acceptable residential development.

As with all lawsuits, such exchanges can seem off-point. But it goes to the heart of Crocker’s case: Boca Raton has been making decisions about Midtown based on politics, not the law.

O’Rourke deposition

Councilwoman Andrea O’Rourke

In addition to deposing Schaad and Brown, Crocker wants to depose Councilwoman Andrea O’Rourke, Mayor Scott Singer and Councilman Jeremy Rodgers. Those three remain from the council that approved the “small area plan.”

Cities try to avoid depositions of elected officials and managers. Palm Beach County Circuit Judge Howard Coates, who is hearing Crocker’s lawsuit, has deferred Crocker’s request to interview City Manager Leif Ahnell, Singer and Rodgers. Something called the Apex Doctrine generally shields those at the top from depositions.

In a ruling issued two weeks ago, however, Coates allowed the deposition of O’Rourke. She retains what Coates called her “legislative privilege,” and the judge noted that the Apex Doctrine “generally prohibits the deposition of Council Member O’Rourke prior to exhausting other means of discovery to obtain relevant information.”

But Coates concluded that O’Rourke “made herself subject to deposition” by writing a blog item “outside of the Jan. 23, 2018 council meeting.” So Handler can depose O’Rourke “with respect to the substance of” that item. If the city’s lawyers believe that Handler is ranging too far, they can object. Coates said he would rule on any questions that the lawyers couldn’t resolve.

The city could appeal Coates’ ruling and try to block the deposition. A city spokeswoman said, “We don’t comment on litigation strategies,” adding, “and I believe we’re still within the appeal period.”

Oceanfront duplex blocked

Also as expected, the developer’s end game seems to be having the public buy the property at 2600 N. Ocean Blvd.

As with most development hearings, Tuesday night’s was quasi-judicial, meaning that is conducted similar to a trial, though not identically. The lawyer representing the developer, however, acted as if the council chambers were a courtroom.

Robert Sweetapple, one of Boca Raton’s best-known land-use attorneys, first asked Mayor Singer and Council members Mayotte and O’Rourke to recuse themselves. Sweetapple accused them of making public statements in opposition to the application, thus showing bias.

Rendering at 2600 N. Ocean Blvd.

All three declined to recuse themselves. The moment, however, perhaps served to remind the council members about the risks of loose talk. It’s one thing to tell residents that you will protect Boca’s beaches. It’s another to take a position on an issue with legal implications and to make it seem that politics is the priority.

Yes, that’s a reference to Midtown. Now back to 2600 N. Ocean Blvd.

Sweetapple produced old comments and videos in which elected officials talked of buying the property. As I wrote Tuesday, the Greater Boca Raton Beach and Park District appraisal said the property is worth $7.2 million—but only if the county approves the variances.

Representatives of the developer challenged the credibility of city officials who said the duplex would harm the beachside environment. A lawyer from Tallahassee claimed that city planners don’t understand the Coastal Construction Control Line.

The duplex would be seaward of that line, so it would require a variance to show that the project wouldn’t harm the environment. According to the developer’s legal team, Boca Raton is using that line to prohibit any building on the beachfront. It all seemed designed to either prepare the ground for a lawsuit in which Sweetapple would suggest public purchase as the best resolution.

Rotary celebrates

I had the pleasure Tuesday of addressing the Rotary Club of Delray Beach. Members will hold their annual Rotary Roots Celebration at 6 p.m. tonight at The Art of Delray. The event will celebrate the club’s 71st anniversary and raise money for the Women & Children’s Pavilion at the Drug Abuse Foundation in Delray Beach.

Festival kicks off

Tonight also begins the 13th Festival of the Arts BOCA, staged in Mizner Park. For those of us who were present at the creation nearly three decades ago, it’s an annual reminder of the original vision to make the park a cultural hub and the catalyst of downtown redevelopment.

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