By Jane Smith
Billy Himmelrich and his business partner are suing Delray Beach for $6.9 million over a 2015 decision that limited the height they can build on properties they own on Atlantic Avenue.
In February 2015, the City Commission placed a three-story height limit downtown after 18 months of meetings. Residents wanted to preserve the small-town look of East Atlantic Avenue between Swinton Avenue and the Intracoastal Waterway.
“This is a taking under the Bert Harris Act,” said Himmelrich, who owns the Old School Bakery, west of the interstate on Congress Avenue. “They can take it, but we want to be compensated for it.”
The 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. Himmelrich said he didn’t receive written notice. He and his attorney spoke against the height limit reduction at the Feb. 24, 2015, commission meeting.
The previous height limit was 48 feet, but the number of stories was not defined. The new height limit allows for three stories or 38 feet.
On June 29, Delray Beach filed its motion to dismiss. The Bert Harris Act has not been applied to the properties, the motion states. Himmelrich and his partner never submitted a development plan to the city, according to the motion.
Himmelrich said he spent two years meeting with the former mayor about what he and his business partner, part-time resident David Hosokawa, could do with their four parcels, which total .65 of an acre.
Former Mayor Cary Glickstein confirms he met with Himmelrich and his architect a few times after the February 2015 vote.
“Discussions regarding his property were conceptual because redevelopment was several years away due to tenant leases,” Glickstein said via email. “He had no definitive development plan and there was no legal action to discuss or settle.”
The partners’ land sits mostly on Northeast First Avenue, adjacent to the Old School Square complex. Two parcels have buildings with restaurants on the ground floor — Tramonti and Cabana El Rey. Since the tenants have long-term leases that expire in 2024 and the city recognizes development plans for only two years, Himmelrich said he felt compelled by the city to come up with development concepts for the parcels.
In doing so, he had appraisals done at the 48-foot height limit that show a hotel with 75 rooms and then one at the three-story limit that could hold only 50 rooms. Himmelrich said he created the hotel concept to show just how much money he would lose under the new height limit.
Himmelrich asked to meet with the current mayor, Shelly Petrolia, without the city attorney present before he filed the lawsuit.
She confirms the request and says she asked City Attorney Max Lohman whether it was a good idea. By the time he replied that it wasn’t a good idea, Himmelrich and his partner had filed their lawsuit.
“With long-standing businesses in the city,” Petrolia said, “there should be a way to reach a compromise.”
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