By Mary Hladky

Palm Beach County Circuit Court Judge Howard K. Coates Jr. has ruled that Boca Raton City Council member Andrea O’Rourke can be questioned by attorneys for Crocker Partners as part of the legal battle between the developer and the city over redevelopment of Midtown.

Crocker Partners also had sought to depose Mayor Scott Singer, Deputy Mayor Jeremy Rodgers and other high-ranking city officials.

Coates’ Feb. 15 order states that Singer, Rodgers, City Manager Leif Ahnell and Assistant City Manager Michael Woika can’t be deposed for now.

Deputy City Manager George Brown and Development Services Director Brandon Schaad will be deposed because the city did not object. Schaad was questioned in January, but his deposition is not yet complete.

It is unusual for elected officials to be questioned as part of litigation because of legislative privilege, which protects them from having to testify about their actions while performing their duties.

But O’Rourke lost that protection, Coates held, when she wrote on her personal blog that a majority of council members voted in favor of her motion to develop a “small area plan” for Midtown and postponed a vote on proposed land development regulations that set a framework for how Midtown could be redeveloped. Midtown would be built just east of the Town Center at Boca Raton.

Coates’ order said that O’Rourke “made herself subject to deposition” by writing about the council’s actions on her blog. He allowed her to be asked questions only “with respect to the substance” of her Jan. 29, 2018, blog post.

“I am happy and proud to announce there was a 4-1 decision made to go forward with a city-generated vision of Midtown Boca …”  she wrote, in part. “This allows us to have city planners establish parameters with a workshop of the overall vision for this area, including community input.”

A deposition date had not been set as of Feb. 26.

“Her blog was rather expansive in its treatment of what her vision was for the development of the area,” said attorney Henry Handler, who represents Crocker Partners. “I think I have a right to inquire.”

Handler said Singer, Rodgers, Ahnell and Woika could be deposed in the future if case discovery reveals they have relevant testimony not covered by legislative privilege.

In another development in the case, the city filed a motion for summary judgment on Feb. 14 asking that the case be dismissed.

Handler said that motion would not block O’Rourke’s deposition.

The Jan. 23, 2018, council decisions on the small area plan and land development regulations prompted Crocker Partners and Cypress Realty of Florida, a landowner that had worked with Crocker Partners on Midtown planning, to sue the city.

Crocker Partners is seeking $137.6 million in damages. Cypress Realty is asking the court to require that the city process its development application.

Both contended that the city’s failure to adopt land development regulations stifled their ability to redevelop their properties. Crocker Partners said the regulation delay created an impermissible building moratorium that took away its property rights.

Circuit Court Judge Jeffrey Dana Gillen tossed out Cypress Realty’s lawsuit on Jan. 15, although he left open the possibility that the company could use a different legal method to press its case. Cypress Realty immediately appealed that order to the 4th District Court of Appeal in West Palm Beach.

Cypress Realty principal Nader Salour did not return calls seeking comment.

City Council members met in executive session Feb. 11 to discuss Crocker Partners’ lawsuit, including possible settlement. City officials can’t discuss what transpired during that private meeting.

Three days later, the city asked that the case be dismissed.

The city contended that the case is moot because it has now adopted land development regulations for Midtown.

The city concluded work on the small area plan Nov. 14.

City staff incorporated some of the ideas from the small area plan into an ordinance that includes land development regulations for Midtown.

The City Council approved the ordinance on Jan. 8.

While Crocker Partners and Cypress Realty wanted to build residential units in Midtown, the ordinance does not include residential development. It focuses on improvements to streets, street lighting, parking, landscaping and crosswalks and would make the area more walkable. It also addresses building heights, setbacks and facades.

In its motion, the city contends it has enacted land development regulations by adopting the ordinance.

“Thus, any controversy between the city and the plaintiffs has been rendered moot, and the court has lost jurisdiction to issue a declaration,” the motion states.

Crocker Partners had not responded to the city’s motion as of Feb. 26. Handler declined to comment, saying he would file his response with the court.

A court hearing on the motion has been set for Aug. 2.

Crocker Partners managing partner Angelo Bianco did not immediately return a call for comment on Feb. 26. Ú

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