By Steve Plunkett

In a long-running lawsuit over public records requests made by the owner of an undeveloped beachfront parcel on State Road A1A, a judge has decided that Boca Raton “unlawfully withheld and illegally delayed” turning over 42 documents that were “damning to the city.”

Palm Beach County Circuit Court Judge Donald Hafele said in his Feb. 1 ruling that he was not suggesting that the city purposely withheld the records. And he had no issue with what he called the city’s “substantial” efforts, which included handing over some 122 gigabytes of data or roughly a half-million pages of information.

“However, the court finds that whomever it was, be it the city attorney, be it the clerk, be it the elected officials themselves, that the production (of the records) was late, untimely, led to the filing of this lawsuit and the non-production was prejudicial to the plaintiff and its business pursuits,” Hafele wrote in his 37-page opinion.

The conflict arose after Delray Beach-based Azure Development LLC, an affiliate of 2600 N Ocean LLC, was denied a permit in February 2019 to build a four-story duplex at 2600 N. Ocean Blvd. east of the Coastal Construction Control Line.

Azure had already made public records requests in March and November 2018 and in January 2019 seeking “any and all documents, including emails, text messages, social media accounts, or official or unofficial reports” regarding or referencing 2600 N. Ocean. Robert Sweetapple, Azure’s lawyer, noted on the requests — in boldface and all capital letters — that he also wanted to see “text messages and emails from private accounts.”

The developer filed its initial public records complaint in March 2019. Four years passed before the city provided Facebook Messenger conversations between Jessica Gray, founder of the anti-development group Boca Save our Beaches, and then-Deputy Mayor Jeremy Rodgers in which Rodgers stated that “I’m of course going to continue going NO on 2500 and likely NO on 2600,” referring to two beachfront parcels.

By that time, a panel of circuit judges had disqualified former Council member Andrea O’Rourke and soon-to-be term-limited Council member Monica Mayotte from voting on the 2600 N. Ocean application, also based on their email messages to constituents and to each other.

Judge Hafele noted that “timely production of the Rodgers Facebook Messenger exchanges might well have led to a determination that a majority of Council members had prejudged 2600’s application.”

In a statement, attorney Sweetapple said, “In effect, the city has for years been running a secret government on private devices and social media of elected and other officials. …

The city’s conduct entirely undermines the requirements of open government and open public records.”

In a federal case brought by the owner of 2500 N. Ocean Blvd., a nearby undeveloped beachfront parcel, U.S. District Judge Rodney Smith disqualified O’Rourke, Mayotte and Mayor Scott Singer from involvement in future issues regarding development of either the 2500 or the 2600 parcel, citing bias on their part.

Hafele denied Azure’s requests for declaratory, injunctive or other supplemental equitable relief but said the city would have to pay Azure’s attorney’s fees and costs.

Sweetapple estimated that Boca Raton will be liable for around $2 million in legal fees incurred by Azure and the owner of 2500 N. Ocean, in addition to the amounts already spent by the city to defend its behavior.

Azure has since decided it wants to build a three-story single-family residence instead of four stories with less glass than its original submission. Its revised plan must still be presented for a recommendation by the city’s Environmental Advisory Board and a vote by the City Council.

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