By Mary Hladky
Close on the heels of landowner Robert Buehl’s announcement that he planned to sue the city over rejection of his proposed luxury adult living facility, developer Crocker Partners said it would go forward with a similar lawsuit over the city’s decision not to adopt regulations that would allow its Midtown project.
That decision increases the financial risk the city faces if the landowner and developer prevail in court. Buehl will be seeking as much as $100 million in damages, while Crocker will seek $137 million.
The litigation does not end there. Developer Group P6, which worked with Buehl on the Concierge ALF in the downtown, headed to court in late August in an effort to quash the city’s denial of the project, but is not seeking damages.
And Crocker filed a separate legal action in May, seeking to have a judge compel the city to write land development regulations for Midtown, and to rule that the Boca Raton City Council’s January decisions to delay adopting the regulations and vote instead to develop a “small area plan” for Midtown are illegal. The developer also says the delay created an illegal building moratorium.
Crocker’s Sept. 13 announcement came after the developer told the city in April that it would sue because approval delays for its Midtown project left it unable to redevelop three properties it owns in Midtown — Boca Center, The Plaza and One Town Center.
That notice of a Bert Harris Act lawsuit gave both sides 150 days to resolve their differences.
But Crocker managing partner Angelo Bianco said the city didn’t talk by the deadline.
“I was hoping to avoid this,” Bianco said in late September. “That is why our primary action is not seeking damages, but to compel the city to do what it said it was going to do — adopt land use regulations that would allow us to build.”
Crocker won an early court round in late August, when Circuit Judge Howard K. Coates Jr. denied the city’s effort to dismiss the May legal action.
“I am very pleased with that ruling,” Bianco said. “I am not interested in handing a bill to the taxpayers of Boca Raton, especially one created by poor leadership at City Hall.”
Crocker Partners originally joined other landowners in the Midtown area to redevelop about 300 acres between Interstate 95 and the Town Center mall. They envisioned a “live, work, play” development where people would live in as many as 2,500 residential units and walk or take shuttles to jobs, shopping and restaurants.
Because of the delay in getting city approval, the group broke up and some are moving ahead with individual redevelopment plans, rather than wait for the “small area plan,” which won’t be completed at least until year’s end.
While Midtown was a complex project, the Concierge was straightforward.
The developer and landowner wanted to build a $75 million ALF at 22 Southeast Sixth St. that would have 53 independent living, 37 assisted living and 20 memory care units.
The project was not controversial, and the City Council’s July 23 rejection was unexpected since Group P6’s previous condo projects in the city were easily approved and the council unanimously supported a separate downtown luxury ALF last year.
But this time, some council members expressed concerns the facility would overburden the city’s fire-rescue services.
Council members Andrea O’Rourke and Monica Mayotte questioned if another ALF was a good fit downtown. Speaking of the city’s vision of a vibrant downtown, O’Rourke said she was not sure how much the Concierge’s residents would be engaged in the community.
“I am not against ALFs in our city,” Mayotte said. “I’m just not sure that the downtown is the right location for them. Other places within our city limits are probably more applicable for these types of residents and I just wanted to make that clear.”
Mayotte and O’Rourke suggested the city may need to create a way for ALF developers to pay for the increased cost of providing ambulance service.
Her comments came after city staff and Fire Chief Tom Wood said ALFs have 15 times the calls per bed than a typical multifamily development.
City Manager Leif Ahnell said a special assessment could be an option, but the city would have to research how that could be done and what costs could be recovered with it. But he said typically an assessment would recover only capital costs, such as for a fire-rescue unit.
That amount, though, is minor compared with the personnel costs to operate the unit — about $70,000 per year per fire-rescue unit and $2 million a year for personnel operating costs.
City Attorney Diana Grub Frieser said there also are legal impediments to levying an assessment only for increased demand for a service. Ahnell said it might be necessary to spread the cost to all types of properties in the city.
In his notice that he planned to sue, Buehl highlighted council member comments he said were discriminatory.
“The statements made by elected officials regarding our city’s elderly residents were absolutely discriminatory and shameful,” Buehl said.
Group P6, in its petition to have the court overrule the city, echoed Buehl’s claim.
But the developer also noted that it is the city’s obligation, not the property owner’s, to provide emergency medical services. If EMS services are overburdened, the city can raise taxes or cut other parts of the city budget to provide more funding to EMS. If not, the city should deny any further downtown development, the petition said.
City staff said the project complies with ordinances governing downtown development, the petition said, as did the city’s urban design consultant, which praised it.
“This project has no basis for denial and we do believe these are all red herrings to deny it,” Group P6 co-owner Ignacio Diaz said in an email.