By Jane Smith
Delray Beach bakery owner Billy Himmelrich is asking a Palm Beach County Circuit Court judge to reopen his lawsuit against the city.
Himmelrich and business partner David Hosokawa want the judge to reconsider their claim under the Bert Harris Act, which protects property rights.
The partners say when the city created a three-story height cap for downtown properties in early 2015, Delray Beach limited what they could build on their four parcels, according to their May 6 rehearing motion. They own two parking lots and two buildings just east of the Old School Square grounds.
They were not notified in writing, as the Bert Harris Act requires. Himmelrich, though, did attend the zoning hearings.
The city’s outside counsel filed a response on May 17. They are seeking $6.9 million in damages.
“The court was correct in its ruling that the passing of an ordinance in itself does not create a private property cause of action,” according to the response.
Himmelrich and his business partner must first create a formal plan that is denied by the city, then they’ll have a cause of action to pursue, the response states.
As of press time, a date was not set to rehear the partners’ motion of the judge’s April 26 ruling that dismissed their case.
To cover their bases, Himmelrich and Hosokawa appealed that ruling on May 24 to the 4th District Court of Appeal. The appeal will be on hold until the judge rules on the rehearing motion, according to the partners’ appeal motion.
The partners had sued Delray Beach in May 2018 in an effort to build four stories on the four parcels. Their tenants are the Tramonti and Cabana El Rey restaurants. Both eateries have long-term leases that expire in 2024, Himmelrich has said.