Boca Raton: Opponents’ case against Chabad heard by appeals court

By Sallie James

The legal wrangling surrounding a fiercely contested proposal to build an orthodox synagogue and Israel museum near Boca Raton’s beach continues to rage nearly three years after the project was proposed.

A panel of three judges in Miami heard yet another round of legal arguments in late January at the 11th Circuit Court of Appeals in Miami. The case stems from a 2015 proposal by Chabad of East Boca to construct a sprawling 18,000-square-foot, state-of-the-art synagogue and interactive Israel museum at 770 E. Palmetto Park Road. 

City activists Kathleen Barr MacDougall and Gerald Gagliardi in February 2016 accused the city of ignoring parking deficiencies and approving a building that exceeded allowed heights. They claimed the city approved deviations and variances that did not meet legal criteria.

U.S. District Judge Kenneth A. Marra dismissed the case in July 2016, ruling the pair had no standing to challenge the city’s decision because they failed to prove injury because of the city’s actions. The duo specifically failed to demonstrate how the change in zoning laws harmed them. They also failed to prove how a building can be “injurious” without stating how it caused injury. Attorney Arthur Koski subsequently filed an amended complaint on behalf of MacDougall and Gagliardi, upon which the arguments on Jan. 31 centered. 

The case focuses on what MacDougall and Gagliardi claim was an “illegal” zoning change they say was unfairly beneficial to Chabad and would harm their neighborhood. They want the zoning invalidated and a federal injunction banning further application approvals.

“We are awaiting a ruling,” Koski said. “They could affirm the District Court’s ruling that the plaintiffs don’t have standing to bring an action, or they could rule the plaintiffs do have standing to bring an action and remand it back to the district judge.”

The city is again seeking to have Gagliardi and MacDougall’s latest attempt dismissed as well.

The city submitted a brief to the court claiming the issue is moot because a Palm Beach Circuit Court panel in June 2016 ruled that the city should have denied the project because it lacked proper parking.

As a result, Chabad must file a new site plan with the city to pursue the project.

“The result of the circuit court’s decision is that Chabad no longer holds necessary development approvals entitling it to build on the property,” attorney Jamie Cole wrote in a brief filed with the court. “Consequently, appellants’ only remaining constitutional complaints are merely generalized grievances that this court lacks subject matter jurisdiction to consider.”

The brief also states Gagliardi and MacDougall lack standing because they have not proved injury.

“All we’re asking for is equal treatment,” said Rabbi Ruvi New, head of the Chabad of East Boca Raton. “We’re grateful that the City and our local community have long treated us fairly, and we’re hopeful that the Court will protect our right to be equal members of the Boca Raton community.” 

The synagogue proposal was controversial from the start. Residents who live in neighborhoods on the barrier island near the proposed site turned out in force to protest it, claiming it was too ambitious, would draw too much traffic and create parking issues on the 0.84-acre property. Residents also voiced opposition to the height of the proposed synagogue, claiming it would be intrusive.

The Chabad has been trying to find a new home since 2008, when the congregation wanted to move into a building near Mizner Park, but was unable to meet parking requirements there. 

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