Atlantic Crossing update
Lawsuits in Delray Beach and Boca Raton have moved to new stages. The one in Delray is a bigger deal for the city, while the one in Boca has layers.
The news in Delray Beach is that the developer of Atlantic Crossing will appeal a federal court judge’s dismissal of two key allegations against the city. Meanwhile, however, the Edwards Companies will continue to press seven other counts in state court.
At the risk of oversimplifying, those seven state counts basically argue that Delray Beach has wrongly obstructed construction of Atlantic Crossing—on the two blocks west of Veterans Park—by withholding permits and that the city should allow Edwards to begin work. The federal counts seek damages under the Fifth and 14th amendments for the city’s alleged unconstitutional delay.
When U.S. District Court Judge Donald Middlebrooks sided with the city and dismissed the two damage claims— counts 8 and 9—it was a big deal because the lawsuit got much less riskier for the city in terms of money. Edwards seeks up to $40 million in damages.
Middlebrooks disagreed with Edwards that the commission illegally withheld permits based on “political motivations” stemming from widespread public opposition to the project. Middlebrooks also disagreed that the city had imposed “impermissible burdens” after commission approval of Atlantic Crossing in December 2012.
Atlantic Crossing, which in June bought out partner DCS Holdings, will challenge Middlebrooks’ rulings before the 11th U.S. Circuit Court of Appeals. The developer’s brief has not been filed, but to succeed Atlantic Crossing must show that Middlebrooks was wrong on the law. You can’t appeal just because you lost.
There’s a different kind of risk for Delray Beach in state court. A judge could order the city to issue permits for a project that many residents—and all the commissioners— believe is too big for the site and lacks what the city commission believes is a suitable access road from the west —on Federal Highway—to reduce traffic. A key issue in the state case involves the portion of Northeast Seventh Avenue and some alleyways that the city conveyed to the developer. In the worst case for Atlantic Crossing, the developer could lose those roadways, without which the project wouldn’t be viable.
Count 4 involves another important issue. In Delray Beach, as in Boca Raton, development approvals expire after a certain period if work doesn’t start. Under one reading of state law, the lawsuit charges, Atlantic Crossing’s approval would expire this December.
If that happened, the developer would have to submit a new plan for what, under the city’s new downtown regulations, almost certainly would have to be a smaller project. Atlantic Crossing wants a court to declare that the expiration date is September 2021.
So the bills rise for lawyers on both sides, and Atlantic Crossing remains unbuilt. Edwards Vice President Don DeVere said in a statement, “We are committed to keep Atlantic Crossing moving forward, and to reach final resolution of all litigation to preserve our property rights.” He added, “With tremendous economic benefits to the community at stake, we look forward to realizing Atlantic Crossing as a cornerstone of downtown Delray’s future.”
Responded Mayor Cary Glickstein, “The dismissal (of the federal charges) was thorough and well-reasoned by a highly respected district court judge. It’s unfortunate the developer prefers spending on lawyers rather than working with the city and creative planners that might actually produce a safe and functional development plan that could move forward.”
And Chabad news in Boca
In Boca Raton, the news concerns litigation over Chabad East Boca.
To recap, opponents filed three lawsuits after the city council approved the project last year. The city prevailed in one state case alleging that the council wrongly granted the project an extra 10 feet of height. The city lost on the allegation that zoning in that area—on Palmetto Park Road near the beach—prohibits the museum/exhibit component of the project. The trust that owns the site, which the trust would convey to the chabad, is appealing.
The city also prevailed in the federal lawsuit alleging a conspiracy between the city and the chabad to illegally favor a religion—Judaism—and place the project on Palmetto Park Road where it would harm the neighbors. The two plaintiffs noted that they are Christians. The plaintiffs have appealed, and the city and the land trust have submitted their responses.
In ruling against the plaintiffs. U.S. District Judge Kenneth Marra found that they had demonstrated no harm from the project, which makes sense. How can one show harm from something that hasn’t been built?
So the plaintiffs now argue that traffic from the chabad would harm their safety, by making it harder to evacuate before a hurricane and by increasing the risk of flooding. As compared to any other project that the city could have approved for that site?
The city’s response addresses the plaintiff’s conspiracy theory. In its first few paragraphs, the land trust’s response gets to the heart of the issue.
The response notes that “in an effort to concoct some way of sidestepping the rejection of their claims of injury, Plaintiffs are putting forth a series of outlandish (and, in many instances, highly offensive) theories of ‘physical and metaphysical’ injury. These include the unfounded contention that use of property for religious purposes will somehow impact traffic and evacuation routes and access to emergency services in ways that constitute cognizable constitutional injury to Plaintiffs.
“And, given the fact that the area has long been zoned to allow secular places of ‘public assembly,’ Plaintiffs’ claim must necessarily be that religious uses of property generate these risks in ways that secular uses do not. . .In reality, Plaintiffs show their true stripes when they turn away from these cooked-up theories of injury and admit what truly motivates their action: ‘The communities along the Boca Raton barrier island share their paradise with beach lovers, cyclists, swimmers and surfers. The atmosphere is beach-oriented, casual and relaxed.’
“Plaintiffs’ message could not be more plain. They believe that the kind of people who would frequent the chabad religious center, as opposed to those who frequented the French restaurant that previously occupied the proposed site of the center, simply do not fit in with the kind of people Plaintiffs would like to see in their community.”
And more…
Here is the potential layer of the chabad lawsuit:
Homeowner associations in Boca Raton’s beach district say they have reached agreement with representatives of Investments Limited on a plan for a task force that would help determine how to develop the area along Palmetto Park Road between the Intracoastal Waterway and the ocean. An email to that effect went to city council members last week.
An email to the city in July contained a proposal for the task force. The email came from Riviera Civic Association President Kevin Meaney and Robert Eisen, the attorney who handles most land-use issues for Investments Limited, Boca Raton’s largest property owner. They proposed a task force that would include three members of the association and two Investments Limited representatives, one of them Eisen.
A city planner would serve as the city’s liaison to the task force, which would take a year to issue a report. During that time, the city would accept no applications for any project in the area taller than 30 feet.
Some obvious questions present themselves. Example: Would other property owners want Investments Limited to have such a prominent role? In addition to Eisen, the July email proposed Doug Mummaw as the task force’s consulting architect. Mummaw is the architect for Investments Limited.
That yearlong moratorium could involve the chabad. As noted, it got approval for a portion of the project to be roughly 40 feet tall. Such conditional use is allowed for that site. If one of the lawsuits succeeded, the chabad might have to submit a new plan. That moratorium would prevent any project from being taller than 30 feet.
Mayor Susan Haynie said Friday that she knew about the effort to create a task force but had not seen the most recent communication. I hope to have more about this in my Thursday post.
The replacement issue
I reported last week on the looming resignation of Delray Beach City Commissioner/state-Rep. elect Al Jacquet. The commission will appoint a replacement to serve from November until March, when the seat comes up for election.
Mayor Cary Glickstein said he would not insist on the appointee refusing to run. Commissioners Mitch Katz and Shelly Petrolia favor a placeholder. I did not hear from Commissioner Jordana Jarjura before deadline for my Thursday post. She contacted me late last week.
“I do not support placing any limitations other than what is legally required to run for office,” Jarjura said in an email. “We want to have as broad an applicant pool as possible and, further, it’s a great way for the individual and the residents to see if it’s a good fit.
“Moreover, how is such a requirement even enforceable? The four of us do not have the power to limit democracy or be the arbiters of the right to run for office.”
So if the choice comes down to whether the person will commit not to run, the commission is deadlocked, 2-2.
The absentee ballot question
Speaking of Al Jacquet, he and his political running buddy Mack Bernard faced criticism during their respective campaigns for their reliance on absentee ballots. Jacquet was running for Florida House 88 and Bernard for Palm Beach County Commission District 7, which includes portions of Delray Beach.
Controversy aside, the tactic worked. Jacquet beat Riviera Beach lawyer Edwin Ferguson by 1,035 votes. Jacquet’s margin among absentee voters was 1,167. Bernard defeated incumbent Priscilla Taylor by 521 votes. His margin over Taylor among absentee voters was 1,287. Most of that absentee support—Florida now officially calls absentee balloting “vote-by-mail”—came from Haitian-American Neighborhoods. Jacquet and Bernard are Haitian-American.
Christmas tree update
You may remember reading that, as part of the Old School Square redesign, the location of the iconic wooden Christmas tree will be shifted. The tree being the tree and Delray Beach being Delray Beach, however, I wondered who had to approve such a move.
The city owns the tree, as well as the land, which Old School Square—operating as the non-profit Delray Beach Center for the Arts—leases. The city and the non-profit are expected to agree on an amended lease for the budget year that starts Oct. 1.
Mayor Cary Glickstein said the master plan for Old School Square, which will be crafted over the next year, will include an “interchangeable location” for the tree, to make it easier to put up and take down the tree.
The commission wanted to move the tree as part of the plan to make the Old School Square grounds more park-like. The Old School Square board, however, also agreed to the move, Glickstein said. So let none of the city’s social media nabobs—those who opposed the special events policy designed to prevent the annual trashing of Old Schools Square—presume that moving the Christmas tree was a commission power grab.
