7960632657?profile=originalA 2003 memo was found as city officials analyzed why the mixed-use Mark at CityScape near Federal Highway and Palmetto Park Road is less attractive than promised.  File photo

By Mary Hladky

    The approval process for proposed downtown Boca Raton projects has ground nearly to a halt as city staff investigates whether developers have included as much open space in their designs as is required.
    The root of the latest controversy to erupt over downtown development lies in the discovery of a 2003 memo used to guide planning staff on what developers can and cannot count as open space in their projects.
    City Manager Leif Ahnell and City Attorney Diana Grub Frieser say that memo misinterprets a 1988 city ordinance that sets out open space requirements. As a result, developers may have been able to skimp on open space intended to create more pleasing and attractive downtown projects.
    Ahnell told City Council members sitting as the Community Redevelopment Agency board on Jan. 25 that his staff is reviewing 74 projects approved since 1988 to determine whether they comply with the ordinance. The analysis should be completed no later than the end of February, he said.
    The staff is also trying to determine why the 2003 memo was written and why no top-level city officials knew of its existence until recently.
    In the meantime, staff is reviewing new development proposals that are submitted, Ahnell said. But the reality is that no project will be approved until staff determines if there is a problem and the City Council decides what to do about it.
    Many downtown activists are outraged that a potential mistake could have gone undetected for 13 years.
    In city meetings, they have brandished accusations including “corruption,” “collusion” and “conspiracy.” A few are threatening lawsuits. Al Zucaro, chairman of the watchdog organization BocaWatch, has gone so far as to seek Ahnell’s resignation.
    “I am calling for the resignation of the city manager,” Zucaro said at a Jan. 11 meeting. “He is the person ultimately responsible.”
    “I, my neighbors and my friends are outraged by the theft of public space,” resident Barbara Powers said at the same meeting. “Someone should be held accountable.”
    “We created an ordinance decades ago that promised the citizens public space, and it’s probable that the citizens have been robbed of the space,” said resident George O’Rourke.
    The issue has particular resonance now because a number of high-profile projects are under construction downtown — including the Via Mizner mixed-use development and the Hyatt Hotel — and residents are concerned they will lack enough open space to be pleasing to the eye.
    Ahnell said staff discovered the memo when analyzing why the mixed-use Mark at CityScape near the corner of Federal Highway and Palmetto Park Road emerged from the ground as a less attractive building than had been promised.
    He, other officials and council members said they had never seen the memo before. It was written by city employee Robert George, who died in 2012, and reviewed by then-CRA Director Jorge Camejo.
    Camejo, whose duties as director were assumed by Ahnell in 2006 and who now is the City of Hollywood CRA executive director, told The Coastal Star in a Jan. 13 interview that there was no hidden agenda in drafting the memo.
     “There was nothing secretive about it,” he said. “It was disseminated to everyone in the planning staff. I find it hard to believe it was not distributed to the higher-ups.”
    There were relatively few downtown projects before 2003, he said. But as a growing number of projects were submitted for approval, planning staff had to decide how to adhere to the open space requirements.
    He and planners thought it was appropriate to “memorialize” how they were doing this to provide future guidance.
    “Every developer tries to push the envelope,” he said. “In order to have an understanding where the envelope stood, we felt it was appropriate to issue that memo and get everyone on the same page of what was permitted and what was not.”
    He had not been contacted by any Boca Raton officials asking him to explain why the memo was drafted or its intent, Camejo said. But after hearing that it was stirring controversy, Camejo said he called Deputy City Manager George Brown on Jan. 12. (At the Jan. 25 meeting, Ahnell said he had called Camejo the previous week but had not heard back.)
    “George was pretty well aware how it came to be,” Camejo said. “I don’t know if I shed any new light on how it came to be.”

‘Space’ definition questioned
    The memo accurately states the basic open space requirements of the ordinance. For example, if a building is taller than 75 feet, 40 percent of the land must be open space. At least 65 percent of required open space must be uncovered from the ground to the sky. The remainder can be covered areas such as colonnades or areas under balconies.
    But Downtown Manager Ruby Childers told the City Council on Jan. 11 that the memo goes on to incorrectly allow developers to count certain features as open space, such as areas under archways. Over time, the list has been expanded to include upper-story balconies, pool decks and more.
    “We believe those areas above the ground level diminish the quality of the public realm,” she said.
    The memo also incorrectly states that open space language in the ordinance was adopted as a guideline, not a requirement, she said.
    It allows developers who object to a limitation on their plans to request an exemption, although such requests would be subject to review and approval by the CRA board. Childers asked that this section of the memo be eliminated.
    Another issue is the definition of “open space.” Saying that residents were using the terms “open space” and “public space” interchangeably, city officials have attempted to rein in expectations. They issued a notice on Jan. 22 saying the two are not the same thing and there is no requirement that open space be open to the public.
    As an example, the notice said a condo pool deck may qualify as open space, but the public does not have access to it. If it is visible to the public, though, it could enhance the “public realm” — that is, be an attractive feature pleasing to the public even if they could not use it.
    City  Council member Scott Singer, who chairs the CRA board, has assured residents that the review will be done in the open. “I am very concerned to learn this memo existed,” he said on Jan. 25.
    He asked Frieser whether the memo simply could be rescinded.

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