Related story: Boca Raton, Delray cases put state’s property rights law in spotlight
By Jane Smith
Two weeks after the City Commission reversed course and rejected a settlement of their lawsuit, two East Atlantic Avenue property owners sent Delray Beach a 60-day notice to stop using their property near the Old School Square grounds.
“It’s in retaliation for the settlement being rejected,” City Attorney Max Lohman said at the end of the Nov. 6 City Commission meeting. He resigned later in that meeting.
At the Nov. 13 commission workshop, interim City Attorney Lynn Gelin said the city has 60 days to remove the palms and other landscaping from both ends of a horizontal parking strip. The palms will be replanted near the city’s Train Depot, west of the interstate, Gelin said.
“I hope the citizens are paying attention,” Mayor Shelly Petrolia said. “This is a reaction to their settlement being rejected.”
One of people who sued the city, bakery owner Billy Himmelrich, declined to comment.
In late May, Himmelrich and his business partner sued the city for $6.9 million in an attempt 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 said.
They claimed they did not receive the written notice required by state law when the city changed the zoning in 2015. After 18 months of hearings and meetings, a previous City Commission decided to foster a small-town feel and limit East Atlantic Avenue heights to three stories between Swinton Avenue and the Intracoastal Waterway.
On Sept. 25, the City Commission agreed to accept the settlement offered by a 3-2 vote and carve out the Himmelrich parcels from the limited height district.
Lohman then joined with Himmelrich’s attorney to cancel an Oct. 19 hearing on the city’s motion to dismiss.
When all commissioners were present for a second vote in mid-October, Lohman took about 10 minutes to tell the commissioners about the location of another property owner who also wasn’t notified of the height reduction.
The other property owner’s building sits next to the Himmelrich buildings, prompting Commissioner Ryan Boylston to switch his vote to oppose settling the lawsuit.
As of press time, the city’s motion to dismiss did not have a hearing date.
Attorney resigns
Lohman resigned before his contract was terminated.
Petrolia listed four reasons for ending his contract, including his canceling the city’s motion to dismiss in the Himmelrich lawsuit after one 3-2 vote and his inability to quickly find the other property owner who had not been notified.
Petrolia also prefers an in-house city attorney who will contact the commissioners before their meetings or workshops.
On Nov. 13, Gelin, already assistant city attorney, was selected to be the interim city attorney. She said Lohman worked out of the city two days a week and that she was up to the challenge.
“This is my dream job,” Gelin said. “I am 200 percent devoted to the city.”
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