By Jane Smith
Delray Beach businessman Billy Himmelrich filed his lawsuit too early against the city, a circuit court judge ruled on April 26.
Judge Jaimie Goodman ruled that Himmelrich and his business partner’s Bert Harris claim was premature, “not yet ripe,” because the partners had not filed an official plan to build more than three stories in the downtown when the city rejected the plan.
Himmelrich texted “No comment” on April 30, when asked whether he would appeal. He and his partner have 30 days to appeal the ruling.
The Bert Harris Act, a state law, protects individual property rights. It allows governments to change their land development rules and requires written notice of the change be mailed to the affected property owners.
Delray Beach sends its notices via the U.S. Postal Service regular mail.
“The Florida Statute notice requirements do not require confirmation of receipt of notices,” Tim Stillings, Delray Beach’s development services director, wrote last year in response to how the city tracks the notices. “When we send notices, we keep a record of the mailing labels.
Stillings was not employed with the city when the downtown height restriction was passed in 2015.
Himmelrich, who attended the 2015 hearings on restricting the height, said he and his business partner were not notified in writing, as required under the Bert Harris Act.
In May 2018, Himmelrich and his business partner had sued the city for $6.9 million to be able to build four stories on their parcels just east of the Old School Square Cultural Center. They own two parking lots and two buildings that house Tramonti and Cabana El Rey restaurants. Both restaurants have long-term leases that expire in 2024, Himmelrich has said.
Then-City Attorney Max Lohman, who was not with Delray Beach in 2015, brought forth a settlement agreement last fall that called for carving out the Himmelrich parcels from the downtown. At the time, he said the settlement is not about the merits of the case but “about certainty.”
On Sept. 25, the commission took its first vote, 3-2, for the settlement. Lohman then canceled the city’s motion to dismiss the hearing, set for Oct. 19.
But on Oct. 9, when commissioners heard from the public, they voted 3-2 against settling. Mayor Shelly Petrolia and Commissioners Bill Bathurst and Ryan Boylston voted for letting the judge decide the merits of the $6.9 million lawsuit.
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