What the November ‘Wildflower ordinance’ really means

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Straight talk on ordinance 5356

The campaign against Boca Raton’s waterfront ordinance has begun.

Ads against Ordinance 5356 began running this week during local television newscasts. The ads focus on the misleading aspect of the ordinance language. The ordinance refers only to public uses of city-owned waterfront land. Someone unfamiliar with the history would not know that the real intent is to prohibit use of the Wildflower property for a restaurant and that those behind the ordinance live near the site and don’t want the restaurant as a neighbor.

Period.

Financing the campaign is a political action committee called Protecting Coastal Communities. In the last three weeks, the PAC received a $60,000 contribution from ForBoca, the website created as a counterweight to BocaWatch, and a $50,000 contribution from Hillstone Restaurant Group. The company has been negotiating with the city since late 2013 to lease the Wildflower property for a namesake restaurant.

According to campaign finance records, the PAC has spent $43,000 with two media companies. That leaves another $70,000, and the PAC obviously could receive more donations. There will be more ads and surely a citywide mailer or two.

The ads were timed to run as the supervisor of elections office was mailing out absentee ballots. Once reserved almost exclusively for those who would be away or physically unable to vote in person, absentee ballots are becoming much more popular. For the Aug. 30 primary, more votes in Florida came before Election Day than on it, because of absentee and early voting. Early voting in Palm Beach County starts on Oct. 24.

Hillstone General Counsel Glenn Viers told me Wednesday, “We feel that the (ordinance) is misguided. We want to ensure that voters are fully informed.”

Among the many misleading aspects of the ordinance is that it would protect Boca Raton from this terrible, no-good company that wants to take away a park. In fact, the city council never intended for the site to be a park. It isn’t a park now. When council members approved the $7.5 million purchase in 2009, they intended for the site to produce revenue.

Then-Mayor Susan Whelchel said the hope was that the city could use the revenue to purchase the next property to the north and have a park there to complement what would be public access to the Intracoastal Waterway at the restaurant, which would provide only the city’s second waterfront dining spot. Hillstone didn’t approach the city seeking to turn a park private. The city asked sought bids for specific use of a vacant property. Hillstone responded.

Voters also should know that supporters touted the ordinance as a way to “let the people decide” on how Boca Raton should use the Wildflower site. Yet those supporters urged the city council to adopt the ordinance without putting it to a vote. With the exception of Scott Singer, the council refused.

The supporters no doubt worried that in a big-turnout presidential election the ordinance might lose. The new campaign is designed to justify those fears.

And if it passes…

A key point in the debate over the waterfront ordinance is what would happen if the ordinance passed

The ordinance reads: “All city-owned land adjacent to the Intracoastal Waterway shall only be used for public recreation, public boating access, public streets, and city stormwater uses only.”

Again, though supporters cast the ordinance as a choice between a park and a restaurant on the Wildflower property, there is no mention of a park or a restaurant or the Wildflower property. All those restrictions, however, would apply not just to the Wildflower but also to Silver Palm, Rutherford, Spanish River and Red Reef parks.

A private company rents chairs and umbrellas at Red Reef Park. The Friends of Gumbo Limbo runs the gift shop at the nature center of the same name. It is neither a public nor a city organization. Would either be allowed if Ordinance 5356 became law?

Ralf Brookes thinks so. Brookes is a land-use lawyer based in Lee County. He argued before the council for adoption of the ordinance. Brookes told me Wednesday that he didn’t write the ordinance, but that he “looked at it.” Brookes believes that the council would have the discretion to allow non-public concessionaires on public waterfront land. “No one would enforce it any other way,” he said. Prohibiting such operations “never was the intent.”

Perhaps, but governments at all levels spend considerable time dealing with unintended consequences. Brookes and supporters of the ordinance base that no-harm, no-foul argument on another Boca Raton case, but I’m not sure that the comparison is valid.

In 2012, the council changed the land-use designation on the property known as Ocean Strand, roughly 15 acres south of Spanish River Boulevard running from the Intracoastal to the ocean. Penn-Florida wanted the site for a beach club as part of its downtown Via Mizner project. The Greater Boca Raton Beach & Park District owns the site, but the city had to approve the land-use changes that would accommodate the club.

The decision seemed non-controversial. The Planning and Zoning Board unanimously recommended approval. During public comment before the council, only one resident spoke—in support. The council vote to approve the change was unanimous.

But a resident named Martin Siml sued, claiming that the city should hold a public referendum on use of the land and organized a petition drive. Sound familiar? Here is the language of that proposed ordinance:

“All public-owned lands owned by the City and the Greater Boca Raton Beach and Park District located between the Intracoastal Waterway and Atlantic Ocean shall be limited to public uses and public services provided for the general public, and development for private uses (including members-only beach clubs) on these public-owned lands shall be prohibited.” At least in the case the public would have a slight idea of the real intent.

The city argued that the ordinance would usurp the district’s power. But Siml prevailed at trial and on appeal. This is from the 4th District Court of Appeal’s Sept. 12, 2012 ruling: “We do not interpret this as requiring that any services can be provided only by the use of government employees or purchases.”

Therefore, Brookes argues, the city council has discretion to allow private uses. The court, though, suggested that someone could challenge any private use if the ordinance passed and the council allowed it.

As it turned out, the council dropped the land-use changes. Penn-Florida went ahead with Via Mizner. The court ruling now returns in the Wildflower ordinance. Consider this potential angle:

Penn-Florida wanted a members-only club, not a restaurant open to the public. The DCA said, “The ordinance does not address what entity can provide these services so long as they are available to the public.” So if Siml is the precedent that Brookes claims, could the council make an exception for Hillstone even if the ordinance passed? In legal terms, how could the council allow a private ice-cream stand or food truck at the Wildflower but not a private, full-service restaurant?

“I don’t think that would pass muster,” Brookes said. The restaurant, he added, would take up most of the site. A food truck, say, would take up just a small portion.

Perhaps Brookes is correct, but there’s a persuasive case that he isn’t. The city attorney’s office has not weighed in. No one really can know. Such uncertainty, however, is one more problem with the ordinance. That’s what happens when a small group with a selfish motive disguises its true goal as a civic-minded initiative.

Lake Wyman makeover gets green light

Happily, everything appears to be go for a makeover of Lake Wyman/Rutherford Park, an issue I discussed at length in Tuesday’s post. City council members liked what they heard at Tuesday’s workshop meeting. I will have more about this next week.

Line items

I had forgotten to mention this very Boca item:

As the fiscal year comes to a close on Sept. 30, cities often update the expiring budget in small ways. The Boca Raton City Council, for example, allocated $10,000 for a trip by the Spanish River High School band.

Another $10,000 will create what Mayor Susan Haynie called a “juniors’ putting green” at the south end of Mizner Park. So whatever happens with sale of the existing city course or acquisition of the Ocean Breeze course at Boca Teeca, golf with remain in Boca Raton.

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Randy Schultz, a native of Hartford, Connecticut, has been a South Florida journalist since 1974. He worked for The Miami Herald until 1976 and for The Palm Beach Post from 1976 until 2014, where he served as managing editor and editorial page editor. Since 2014, he has written a politics blog, commentaries and other articles for Boca magazine. His writing has earned first-place awards from the Florida Magazine Association and the Florida Society of Newspaper Editors. Randy has lived in Boca Raton with his wife, Shelley Huff-Schultz, since 1985. His son, daughter-in-law and their three children also live in Boca Raton.