By Steve Plunkett
Lawyers for the owner of an undeveloped lot at 2500 N. Ocean Blvd. made another unsuccessful attempt July 23 to win permission to build on the beach.
The City Council voted 5-0 not to grant a variance allowing construction east of the city’s Coastal Construction Control Line.
“I believe the applicant has failed to meet its burden to provide competent and substantial evidence that it has met the criteria for the variance,” Mayor Scott Singer said.
The result matched a unanimous recommendation for denial in April by the city’s Environmental Advisory Board. The city’s Development Services Department also urged that the request not be approved.
The council’s decision, the final word on the issue unless landowner Natural Lands LLC goes to the courts, was its second affirmation of the CCCL this year; in February it denied a CCCL variance to build a four-story duplex two parcels north, at 2600 N. Ocean Blvd.
But 2500 N. Ocean’s application came with approvals that 2600 lacked — from the state’s Department of Environmental Protection and its Fish and Wildlife Conservation Commission.
Natural Lands wants to build a 48-foot-tall, 8,666-square-foot single-family home at the site, and obtained a Notice to Proceed from the state DEP in October 2016.
Brandon Schaad, Boca Raton’s development services director, said that notice was based on a zoning confirmation letter the city “mistakenly issued” that did not point out the property owner still would have to get a city CCCL variance. Also, he said, the state agency sent the city’s copy of the notice to an “incorrect” email address.
“In any case, the city has its own CCCL regulations that are separate and apart from any addition to the state’s regulations, meaning that the FDEP’s actions are irrelevant to the proposed variance,” Schaad said.
Attorney Neil Schiller, representing the property owner, asked Singer and council members Andrea O’Rourke and Monica Mayotte to recuse themselves from the vote based on comments they made when running for office about protecting the beach.
He also asked that Schaad’s statements on sea turtles and environmental impacts be ignored, saying Schaad was not a qualified expert on those topics.
In its review the state Fish and Wildlife Conservation Commission wrote that “the project does not significantly impact marine sea turtles and their habitat,” Schiller said.
And he argued that reports by Boca Raton’s experts, consultant Mike Jenkins of Applied Technology & Management Inc. and city marine conservationist Kirt Rusenko, were “flawed” by contradictions and incorrect information, citing an email advising Jenkins that a map of turtle nesting patterns was off due to a “slight geo-shift.”
Even so, Schiller said, “Based on this graphical representation, there is zero sea turtle activity close to the structure itself or the cantilevered area under the structure.”
The City Council caused a public outcry in December 2015 when it approved a zoning variance at 2500 N. Ocean to allow something to be built on the 85-foot-wide lot. City rules normally require lots at least 100 feet wide.
Fewer than 10 members of the public spoke at the July 23 hearing; all opposed the CCCL request.
“This isn’t about property values. This isn’t about views. This is about preserving and protecting our city’s code of ordinances and our sensitive marine ecosystem,” said Jessica Gray, who founded the group Boca Save Our Beaches after the council’s 2015 decision.
David Sergi, another beach advocate, said there was a reason the council chamber was not filled with more opponents.
“I think people have been talking about trains a lot this week and golf courses, and they’re just not here tonight; they’re tired,” Sergi said, referring to a five-hour meeting the day before on a possible Virgin Trains station downtown and the proposed Boca National Golf Course.
Schiller repeatedly stressed that the previous lot-width variance showed that 2500 N. Ocean was “suitable for construction.”
“Again — I’m harping on this because it’s so important — in 2015 this body determined this property was developable and buildable by granting the minimum lot-width variance. The property has not moved location since, neither has the CCCL,” Schiller said.
After the City Council denied a CCCL variance in February for a four-story duplex at 2600 N. Ocean Blvd., that applicant asked that a Palm Beach County circuit judge review the EAB and council decisions for irregularities. The legal request is pending.
A court review is a prerequisite to filing a Bert Harris Act lawsuit for damages resulting from a government taking of private property.