Boca Raton: New Crocker suit alleges Sunshine Law violation

By Mary Hladky

A third lawsuit filed by developer and landowner Crocker Partners claims the city made misleading statements in public documents and violated the state’s Sunshine Law to prevent residential development in Midtown.

Emails and documents Crocker Partners obtained during the discovery process for two previous lawsuits it filed against the city show that city officials, including two or more unidentified Boca Raton City Council members, acted in secret to thwart its plans for Midtown, the lawsuit states.

“It really is a paper trail that shows this concerted effort to deceive and delay, and it appears to be led by the city attorney and one or more of the council,” said Crocker Partners managing partner Angelo Bianco, referring to City Attorney Diana Grub Frieser.

City officials declined to comment on the allegations made in Palm Beach County Circuit Court.

“The city has not been served with this lawsuit,” city spokeswoman Chrissy Gibson said in a March 29 email. “If and when the city is served with the lawsuit, we will review it and prepare an appropriate and timely response.”

Midtown landowners, including Crocker Partners and Cypress Realty of Florida, joined forces about four years ago in an ambitious plan to redevelop 300 acres west of Interstate 95 and east of the Town Center mall where no residential development is now permitted.

They envisioned a “live, work, play” project where people would live in as many as 2,500 residential units and walk or take shuttles to their jobs, shopping and restaurants.

For that to happen, the city would have to approve land development regulations allowing residential development in the area.

But on Jan. 23, 2018, City Council members indefinitely postponed a vote on proposed regulations that would have allowed residential development if certain conditions were met.

Instead, the council voted to have city staff develop a “small area plan” for Midtown, an idea proposed by council member Andrea O’Rourke. That work would delay finalizing and enacting the regulations by about a year.

Frustrated by the delay, Crocker Partners and Cypress Realty filed lawsuits.

Crocker Partners’ third lawsuit, filed on March 27, states that the city misrepresented in a memorandum to the City Council what transpired at a May “public visioning session,” where residents offered their thoughts on how Midtown should be redeveloped.

The memorandum, first drafted by Development Services Director Brandon Schaad and a consultant, was changed by Deputy City Manager George Brown to make it appear as if many residents opposed any residential development, the lawsuit states.

Crocker Partners contends that residents attending the session generally favored low-density or mid-level-density development.

The Coastal Star attended the session, where residents were divided into groups that came up with recommendations.

Of those groups that directly addressed residential development, only one opposed it and another implied opposition. The rest called for low-density development. Two suggested no more than 600 units be allowed, and one proposed no more than 1,250.

The lawsuit also outlines how the city abruptly halted the creation of the small area plan in November.

It includes verbatim comments from Deputy Mayor Jeremy Rodgers and Mayor Scott Singer at an Oct. 9 meeting that indicated work on the small area plan was proceeding. A second public session was still being planned and an email from Schaad said the session would be held on Dec. 4.

But on Nov. 14, the City Council unanimously passed a resolution that states that the small area plan exercise “was concluded” by City Council consensus on Oct. 9 and that the council directed city staff to proceed with drafting land development regulations.

The lawsuit cites an email sent the next day by Schaad to the consultant handling the public sessions that stated he did not need to do any more work.

On Dec. 4, instead of holding a public session similar to the one in May, Schaad met with city residents to outline the city’s plans for Midtown, which included gradual improvements to streets, street lighting, landscaping and the like, but did not include any residential development.

The City Council unanimously approved an ordinance on Jan. 8 that includes the city’s plans for Midtown that Schaad presented to residents the month before. City officials have said they enacted land development regulations for Midtown by adopting the ordinance.

Crocker Partners alleges, without offering proof, that on three occasions two or more City Council members secretly communicated with each other through a city official, who is not named.

The meetings resulted in Brown’s being instructed to edit the memorandum to the council, the termination of the small area planning exercise, and an agreement to adopt the Midtown ordinance, the lawsuit states.

Such meetings, if held, would violate the Sunshine Law that requires City Council decisions be made during public meetings.

“The council was obligated to comply with the Sunshine Law but, instead, circumvented its public meeting requirements,” the lawsuit states. “These meetings were not noticed or open to the public. … Such secret meetings deprived the public of any contemporaneous knowledge of what was going on and appeared to be designed to prevent discussion of any kind as to the merits of the council’s actions.”

Asked why Crocker Partners provided no proof, Bianco said, “From the evidence we have been able to put together, the change in council members’ public statements from one meeting to the next can’t be explained in any other way. … We have email correspondence that things were happening behind the scenes.”

Corroborating evidence could be added to the court file as the case proceeds.

The lawsuit asks a judge to invalidate the Midtown ordinance and city resolution. It also asks for an order that the city hold new meetings where decisions on Midtown redevelopment would be made in public.

Crocker Partners, which owns 67 acres, sued the city in October, seeking $137.6 million in damages on grounds that the delay created an impermissible building moratorium that took away its property rights.

The company filed a separate legal action in May, asking a judge to compel the city to write the regulations. The city asked the court to dismiss the case in February, saying it is moot because the city has now adopted land development regulations for Midtown.

Cypress Realty, which owns 10.2 acres, sued in October, asking that the city be required to process its August development application. Palm Beach County Circuit Judge Jeffrey Dana Gillen dismissed the lawsuit on Jan. 15, and Cypress Realty immediately appealed to the 4th District Court of Appeal in West Palm Beach. Ú

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