By Jane Smith
Delray Beach commissioners will let a judge determine whether two East Atlantic Avenue property owners have the right to build an extra floor in the three-story district.
The split vote, 3-2 against settling the $6.9 million lawsuit by carving out the contested parcels, took place in mid-October. Commissioner Ryan Boylston was concerned that chopping away at the district would lead to more lawsuits against the city.
“Every time you move that line, a new property owner is on the line,” he said after the meeting. “The city attorney could not prove that this was a one-stop situation.” Boylston rents space for his marketing firm in a corner building on that block.
Boylston joined Commissioner Bill Bathurst and Mayor Shelly Petrolia for letting a judge decide.
“This is the first cut, a slow and steady chipping away at something we worked hard to get,” Petrolia said at the meeting.
After 18 months of meetings, a previous City Commission had capped East Atlantic’s height at three stories between Swinton Avenue and the Intracoastal Waterway.
Petrolia and Commissioner Adam Frankel were part of the unanimous vote in February 2015.
City Attorney Max Lohman told commissioners that the owners of two properties had not been notified in early 2015 as required by state law. He said notices were sent out in late January to the owners. They have a year to bring a site plan for a four-story project to the city. Lohman was not the city attorney in early 2015.
One owner, William R. Burke Jr., who bought the building at 123 E. Atlantic Ave. in 1996, could not be reached for comment.
In May, Old School Bakery owner Billy Himmelrich and his business partner sued the city for $6.9 million to be able to build four stories on their parcels just east of the Old School Square cultural center. They own two parking lots and two buildings that house Tramonti and Cabana El Rey restaurants. Both restaurants have leases that expire in 2024, Himmelrich said.
Himmelrich and David Hosokawa have a history with the city and its Community Redevelopment Agency. In the mid-2000s, they sold a parcel through eminent domain to the CRA to complete the Old School Square park and in return bought a small parcel with 26 parking places. The partners lease that parcel to the CRA for parking for the Greenmarket and other events.
At the mid-October meeting, Himmelrich said, “I don’t want anything special.” After the meeting, he said, “I offered them a great solution and they are playing Russian roulette with the taxpayers’ dollars.”
Delray Beach real estate agent Brian Rosen said at the meeting that Himmelrich had helped to create the Old School Square park. “It’s not setting a precedent,” Rosen said.
Longtime resident Linda Oxford spoke about the height cap. “We want to be able to walk downtown and let sun hit our faces,” she said.
Resident Kelly Barrette reminded the commission that when the height cap was passed in 2015, people in the chambers stood and clapped. “One of the few standing ovations,” she said. Barrette also said the commissioners are “the last line of defense against inappropriate development.” She urged the commission to fight the lawsuit.
Lohman, though, said settling the lawsuit was not about the merits of the case. “The settlement is about certainty,” he said.
He declined to say how his office determined that only the owners of two properties had not been notified, citing the “ongoing litigation.”
“The Florida Statute notice requirements do not require confirmation of receipt of notices,” wrote Tim Stillings, development services director, in response to how the city tracks the notices. “When we send notices, we keep a record of the mailing labels.
“With respect to the changes to the Central Business District, the city sent notices during the consideration of the changes but did not send any immediately following the adoption.”
Stillings was not employed by the city in 2015.
Longtime East Atlantic Avenue building owner Bruce Gimmy said he did not receive a notice, but he knew about the height cap because he sat on the city’s Parking Management Advisory Board.
At the mid-October commission meeting, Lohman said the hearing on the city’s motion to dismiss, set for Oct. 19, had been canceled based on the 3-2 vote to settle the lawsuit that took place Sept. 25.
As of press time, the hearing had not been reset.
“I’m really concerned that the city’s motion to dismiss was canceled, based on the vote from one public hearing. It was a close vote,” Petrolia said after the meeting. “There were a lot of questions that were not answered for us to be making major decisions.”
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