By Jane Smith
After city commissioners insisted the two-way road be placed back into the Atlantic Crossing development, they were ready to settle the lawsuit with the project’s developer.
“I do not think we can get a much better project without considerable risk,” Mayor Cary Glickstein said at a specially called April 12 commission meeting. “The time has come to move forward.”
The Delray Beach City Commission unanimously approved settling the lawsuit. The city spent $471,788 on the litigation as of March 31.
“Reaching settlement has been challenging,” said Dean Kissos, chief operating officer of the Ohio-based Edwards Cos. “We’re eager to work with the city to get Atlantic Crossing underway, and finally bring the east end of Atlantic Avenue to life.”
The project must go through two city review boards and come back to the commission for final approval, a process that will take another four to six months.
“We look forward to having the settlement become final,” Kissos said, “enabling us to dismiss the state and federal lawsuits, assuming there are no third-party challenges to the agreement.”
If someone challenges the settlement, then Edwards would continue its lawsuit against the city, according to the settlement’s terms.
When complete, Atlantic Crossing will have 82 luxury condos, 261 apartments, 83,462 square feet of office space, 39,394 square feet of restaurants and 37,642 square feet of shops, at the northeast corner of Federal Highway and Atlantic Avenue.
Edwards’ development order expires Sept. 9, 2021, unless the governor declares an emergency, such as for Hurricane Matthew in 2016. The declaration would give extra time to all developments in the state.
The project’s developers sued the city in state court in June 2015 for not approving the project’s amended site plan. When the case was transferred to federal court that fall, the developers wanted at least $25 million in damages. The federal claims were dismissed in July 2016 and the case returned to state court last fall.
In March, the Atlantic Crossing developer agreed to these terms:
• Create a two-way road into the project from Federal Highway.
• Move the underground garage entrance into the project’s interior.
• Contribute $175,000 to a shuttle bus.
• Pay for the design, permit and construction costs of a mast arm traffic signal at the intersection of Northeast First Street and northbound Federal Highway and the intersection of Atlantic Northeast Seventh avenues.
• Temporarily close Northeast Seventh Avenue at the project’s north end during construction to keep traffic out of the Palm Trail neighborhood.
Edwards then submitted additional changes that capped the amount spent on traffic calming efforts in the Marina Historic District. The $125,000 worth of changes would include landscape bump-outs, a traffic circle and landscaped medians.
The current and former presidents of the district’s homeowners association questioned the basis for that amount at the April 12 commission meeting.
Glickstein said the amount came from the city’s engineering staff, which said the total cost was under $100,000.
Sandy Zeller, former district president, recalled a 2013 meeting with Randal Krejcarek, then the city’s environmental services chief, to review the traffic calming efforts. The changes would have to be re-cost at today’s prices, said John Morgan, who now heads the department.
The Atlantic Crossing developer also wanted to tie state approvals for traffic signals to a time frame. It gave the city 210 days to obtain the approvals. Some residents questioned why the time frame was not for applying for the approvals, because the city has no control over state staff.
The wording was “hotly debated” by the developer’s attorney, who refused to change it, said Jamie Cole, from the city’s outside counsel Weiss Serota Helfman Cole & Bierman of Fort Lauderdale. If the state does not give the approvals in that time, the developer doesn’t have to pay for the traffic signals at two intersections, Cole said. He is confident the approvals can be obtained in that time frame.
His law firm colleague Kathryn Mehaffey handed out a revised document at the start of the April 12 meeting. The revision clarified that the state approval request was for the traffic signals on city land, outside of the project. The two-way road, on land inside the project, is not part of the change, Cole said.
Jestena Boughton, who lives near the Atlantic Crossing site and owns the Colony Hotel, questioned whether the design and layout of restaurants and stores has changed over the years. The project was approved in 2014, although it was designed years earlier. More purchases are made online these days, she said.
“I wish (Atlantic Crossing’s) footprint were smaller and that you could see the open space from the street,” Boughton said.
In his closing comments, the mayor said, “Jestena really hit it. Many of us in the community would have liked to see a much different project. … The market will speak to the developer about the size of the stores and restaurants.”
Edwards Vice President Don DeVere said in an email, “Decisions regarding the sizes of the retail spaces will be market driven.”
Glickstein also thanked Cole and his team for their perseverance in getting the lawsuit settled.
“There will never be a perfect project,” said Robert Ganger, chairman emeritus of the Florida Coalition for Preservation.
The coalition, a grass-roots group dedicated to responsible development, was involved in raising money to pay for a private traffic study surrounding Atlantic Crossing.
“We at the coalition want to commend you, Mayor Glickstein. You got as much as you could. We are truly grateful to you,” Ganger said.