By Mary Hladky
A Palm Beach County circuit judge has thrown out a lawsuit brought by developer and landowner Crocker Partners that sought $137 million in damages from Boca Raton for actions Crocker claims left it unable to redevelop its Midtown property.
In his July 19 ruling, Judge Howard Coates Jr. sided with Boca Raton across the board, granting the city’s motion to dismiss the lawsuit and ruling against all of Crocker Partners’ legal arguments.
“We are pleased to have received a favorable order” on the motion to dismiss, the city said in a statement.
Crocker Partners will appeal the ruling, said managing partner Angelo Bianco.
“We consider it an incorrect application of the law,” Bianco said. “At the end of the day, we believe the 4th District Court of Appeal will rule in our favor.”
Crocker Partners will continue to pursue two other lawsuits it filed against the city, Bianco said.
The litigation arose out of unsuccessful efforts by Crocker Partners and other landowners to persuade the city to allow them to build residential units on 300 acres they wanted to redevelop in Midtown, located just east of the Town Center mall.
After years of negotiations, the City Council on Jan. 23, 2018, was to vote on proposed regulations that would have allowed residential development. But the council indefinitely postponed that vote and instead agreed to have city staff prepare a “small area plan” for Midtown — a decision that stymied the landowners’ ability to move ahead with redevelopment.
The city abruptly halted small area planning on Oct. 9 and passed a resolution stating the planning was concluded on Nov. 14. Early this year, the City Council approved an ordinance that enacted land development regulations for Midtown that allowed for cosmetic improvements but did not include any residential development.
Crocker Partners first sued on May 23, 2018, seeking to have a judge compel the city to write land development regulations for Midtown, and to rule that the council’s delay in adopting them and creating a small area plan were illegal.
It followed that up with a Bert Harris Act lawsuit on Oct. 23 seeking $137 million in damages caused by its inability to redevelop its land. The act is intended to protect the rights of property owners when a government restricts or limits their private property rights.
Crocker Partners’ third lawsuit, filed on March 27, claims the city made misleading statements in public documents and violated the state’s Sunshine Law to prevent residential development in Midtown. It also accused city officials, including unidentified City Council members, of acting in secret to thwart its plans for Midtown.
Coates’ order states that the Bert Harris Act provides compensation to property owners who lose existing or vested zoning rights, but not to property owners who do not receive new development rights.
Crocker Partners retained the ability to build commercial, retail and offices, as was allowed both before and after the council passed new ordinances pertaining to Midtown, the order states.
Crocker Partners contended it had a reasonable belief that the city would allow residential development in Midtown because the area’s land use designation permitted residential. The small area plan process also gave Crocker Partners reason to believe residential would be allowed because it was discussed and city residents generally did not oppose it.
Coates rejected that, saying it was not a reasonable expectation.
“Further, to allow such expectations to be founded on comments made by staff, at workshops, or even in council meetings, in the absence of a final act or decision by the legislative body, would open the flood gates to potential claims of parties based on what was said as opposed to what was actually done by a governing body,” he wrote.
In a footnote, Coates also rejected Crocker Partners’ claim that the council’s delay in creating land development regulations for Midtown created an illegal building moratorium. A moratorium temporarily prevents permitted uses of land, but residential development has never been permitted for Midtown, he wrote. Ú