By Mary Hladky
As his passion for the practice of law faded, Rick Felberbaum wanted to pursue a new one.
After years of studying and experimenting, he perfected a recipe for what he thought was the best ice cream he had tasted, with innovative flavors such as strawberry and toasted pistachio and passionfruit and salted caramel.
The next step was finding the right spot for an ice cream shop. Felberbaum bought a building at 310 E. Palmetto Park Road, a potentially customer-rich location within walking distance of a number of restaurants, across the street from the Palmetto Promenade apartments and townhomes and a few blocks from the Mark at CityScape apartments.
He then asked city officials to change the allowable use of the first floor of his building from office space to a 971-square-foot ice cream shop.
It took him nearly two years to get approval from Boca Raton City Council members, sitting as Community Redevelopment Agency commissioners, on Jan. 8. Yet he still needed to jump through more hoops before he could launch his business.
Felberbaum threw in the towel. He opened Proper Ice Cream in June — in Delray Beach.
“The city took such a long time to approve my plans, I had to make other plans,” he said in March. “I had no other choice.”
Felberbaum isn’t alone in his frustration with the city’s time-consuming and costly process for approving plans in the downtown.
Critics say the city makes it so difficult for small-business owners that they are shunning the city’s center.
John Gore, president of Boca Beautiful, which advocates for responsible city growth, calls it a “small business-unfriendly atmosphere. The outcomes are stifling small-business growth in downtown Boca.”
“The property owners and business owners downtown are in the midst of a very, if not hostile, at least extremely bureaucratic business environment right now,” said attorney Michael Liss, founder of the Downtown Business Alliance.
The city has strict ordinances governing downtown development that hold large developers and small-business owners to the same standards.
The intent of the ordinances is to guard against overdevelopment and to protect small-town charm in the downtown. They limit building height and density, require developers to provide open space and adequate parking and press developers to use architectural designs in harmony with those of legendary architect Addison Mizner, among many other things.
Large developers have plenty of complaints about these rules and the length of time it takes to get approvals, too, but they have deep pockets and legal teams. Small-business owners can be hard-pressed to pay for attorneys to help them navigate the process, and for costs imposed on them such as for a city consultant’s review of their projects.
Politics plays a role as well. The City Council has faced a backlash from vocal downtown residents who contend the downtown is overdeveloped, with too many large condo and apartment projects already built and too many more in the pipeline.
The most recently elected council members, Andrea O’Rourke and Monica Mayotte, ran as “resident-friendly” candidates who pledged not to ignore the wishes of their constituents.
Some observers say as a result, council members hold developers’ and business owners’ feet to the fire in strictly complying with the rules, and that city staff follows suit. That has translated into a very difficult environment for people like Felberbaum.
The ordinances are not tailored to address all the many different projects that can come before the CRA.
In the case of Proper Ice Cream, the main ordinance governing downtown development has no provision for an ice cream shop. So, it was classified as “retail high” — even though it wasn’t that at all — and subject to the same review as a large condo or hotel project.
City Council members are aware of some of these deficiencies and say they are streamlining the process. They all but apologized to Felberbaum at the Jan. 8 meeting just before they approved his shop.
“Thanks for staying the course,” then-Mayor Susan Haynie told him. “This is a poster child for why we need small-scale IDA [individual development approval] processes so we don’t have to go through the full review process that we do for a larger, more extensive building.”
“We are trying to come up with a way to make it easier for small businesses to succeed, ” said Jeremy Rodgers, who was deputy mayor at the time.
“We can all scream for ice cream, but it shouldn’t have to take months of screaming to get there,” said Mayor Scott Singer.
Process cost Luff’s ‘a fortune’
Restaurateur Arturo Gismondi faced similar difficulties as he tried to open Luff’s Fish House in a historic 1927 house at 390 E. Palmetto Park Road.
The architect, Derek Vander Ploeg, described the process as “a herculean effort” that consumed nearly four years and cost Gismondi “a fortune.”
The last hurdles presented themselves in December as Gismondi prepared to open.
He sought permission to use a different roofing material than what was originally approved because the original was no longer available.
He also had painted a portion of the building sea foam green rather than a reddish brown that had been previously approved.
The city cited him for using the wrong color, and he had to appear before a special master who told him he had 90 days to repaint, Vander Ploeg said.
Gismondi did so immediately, but also asked the city to allow him to use sea foam green, or what the city calls spring mint — a change that required an amendment to the IDA needing CRA approval.
But before that, he had to seek an OK from the Community Appearance Board. The city’s consultant also had to weigh in for a second time and concluded green complied with the city’s standards better than reddish brown.
“It has been painful,” Vander Ploeg said in mid-March, while still awaiting a verdict from the city. “It is still unresolved for something that should be simple.”
While the city has begun streamlining its procedures, none of the changes adopted so far would have helped Felberbaum and Gismondi, who could not be reached for comment.
The city, for example, has eliminated the Zoning Board of Adjustment and transferred its responsibilities to the Planning and Zoning Board and has simplified the process for abandonment of rights of way and easements. City staff is working on proposals for additional changes.
The city has not acted on streamlining proposals submitted in 2012 and, after revisions, in 2014 and approved by the Downtown Boca Raton Advisory Committee.
Critics: ‘Streamlining’ isn’t
Vander Ploeg and Glenn Gromann, a former Planning and Zoning Board member who has considered running for mayor, headed up the streamlining proposals.
“They have streamlined nothing,” Gromann said. “Wherever they tried to streamline, they made the rest of the process longer. Since they started to talk about streamlining, it now takes six to 12 months longer” to get approval for a project.
His recommendations included allowing amendments to site plans to be reviewed and approved by city staff and the city manager to shorten the process. Similarly, in the case of a minor revision to an IDA, such as a change in paint color, city staff and the city manager could make the call.
Vander Ploeg said the ordinance governing downtown development already allows city staff and the city manager to review small projects and, if they comply with city ordinances, to be placed on the CRA’s consent agenda so they could be approved quickly. If a CRA commissioner has questions or concerns, he or she could ask to pull the matter from the consent agenda for discussion or debate.
But that provision is rarely used, he said, because CRA commissioners and city staff prefer a full review of every project to avoid criticism.
Liss said the main problem is how the CRA is structured. City Council members also comprise the CRA board, and City Manager Leif Ahnell also is the CRA executive director. He wants an independent CRA with its own executive director.
“Our elected officials have absolutely no vision for what to do about business or property ownership in the downtown,” he said. “A CRA is supposed to be an independent economic engine. Ours just acts to get in the way of anybody conducting business or improving real estate.”
An independent CRA could streamline the approval process just for the downtown, he said.
While the city grinds away at streamlining, Luff’s Fish House opened in February, the latest addition to Gismondi’s portfolio of restaurants that includes Trattoria Romana and La Nouvelle Maison.
Felberbaum, who still has a small law practice, is both making and selling his ice cream at 1445 N. Congress in Delray Beach.
But even before selling directly to the public, he launched a wholesale business providing ice cream to renowned chef Clay Conley’s Buccan and Imoto restaurants in Palm Beach and Grato in West Palm Beach, as well as 1000 North, which counts former NBA star Michael Jordan as an investor, in Jupiter. It also is sold at Joseph’s Classic Market in Boca Raton and Palm Beach Gardens and will soon be sold at a Joseph’s coming just west of Delray Beach.
Felberbaum hopes to go national soon; he signed a contract for a national marketing campaign.
“It is very exciting,” he said in June. “The potential is amazing.”
And his business space in Boca Raton? It’s on the market. Asking price: $2.3 million.