By Jane Smith
Delray Beach Oct. 2 delayed its controversial vote to settle a lawsuit by carving the contested properties from its reduced height district on East Atlantic Avenue.
City commissioners voted 3-1 to push the vote to Oct. 16 when all five could be present. Vice Mayor Adam Frankel did not attend the Oct. 2 meeting.
Mayor Shelly Petrolia voted against the postponement. She prefers getting the lawsuit dismissed to preserve the small-town ambience of the downtown.
The reduced height district covers Atlantic Avenue between Swinton Avenue east to the Intracoastal Waterway.
When introducing the ordinance that would change the height district, Development Services Director Tim Stillings said it would be moving the district line to the east and staff recommends approval. The property owners could then build 4 stories, or 54 feet.
Only two people spoke.
Resident Mitzi Kaitz, who usually talks about the city’s golf courses, said the amendment would set a precedent.
“The beauty of Atlantic Avenue is the low height,” she said.
The other speaker was Billy Himmelrich, who filed the lawsuit in June.
“I’ve done everything in my power to make Delray a great place to be. It always was a tight vote,” he said. “I hate to see a tie vote.”
The City Attorney agreed.
“A tie vote would mean no action,” Max Lohman said.
In June, bakery owner Himmelrich and his business partner sued the city for $6.9 million for value that was lost on their properties.
They own the .65-acre site that houses two buildings and two parking lots across from Old School Square. Himmelrich once used the building that faces the historic site for his Old School Bakery. The bakery now sits on Congress Avenue, west of the interstate.
Restaurants, Tramonti and Cabana El Rey, occupy the ground floor of the buildings with long-term leases. After the leases expire in 2024, Himmelrich said they would like to develop the property.
In February 2015, a previous city commission passed the reduced height district for East Atlantic Avenue. The height for new buildings is limited to three stories, or 38 feet. Most residents wanted to preserve the quaint look of the downtown.
Himmelrich, though, spoke against the changes, saying they would hurt his property values.
When Himmelrich and part-time resident, David Hosokawa, bought the properties the number of stories was not specified, but the height limit was 48 feet.
They sued under the Bert Harris Act that protects private property rights. It allows local governments to change their land development rules and requires written notice to affected property owners.
Himmelrich said he never received the notice, meaning the clock had not started ticking for the one-year time frame for the lawsuit to be filed.
He wondered about the elaborate lengths the city was going through to settle the lawsuit.
Even so, Himmelrich signed a settlement agreement on the morning of Oct. 2, awaiting city commission approval.
The city commission first voted 3-2 on Sept. 4 to exclude the contested properties after a closed commissioner-attorney meeting. There was no discussion and no public comments.
Commissioner Bill Bathurst and Mayor Petrolia, who often speak about preserving the small-town look of Delray, were on the losing side.
To carve out the properties, the city voted to amend its height ordinance passed in early 2015 after 18 months of community meetings.
That meant the amended height ordinance had to be shown to the Downtown Development Authority on Sept. 10 and go before the city’s Planning & Zoning advisory board.
On Sept. 17, P&Z board member Kevin Osborne asked why were two buildings being pulled out of the district? The board attorney, Bradley Boggs, did not mention that the height ordinance was changing to settle a lawsuit. He said, “It’s a city commission recommendation.”
Two members asked whether they were setting a precedent with the change. Boggs addressed that indirectly by saying, “If the city didn’t notify all property owners, the affected owners could bring a claim.”
Then, he said, all downtown property owners will be notified of the change.
Board member Christina Morrison asked, “Isn’t this spot zoning?”
Boggs said, “No, it’s just moving a district line.”
The board voted 5-1, with member Osborne dissenting.
The amended ordinance came before the city commission on Sept. 25 for its first reading.
The vote was similar to the one they cast after the Sept. 4 meeting, 3-2, with Petrolia and Bathurst voting no.
Commissioner Ryan Boylston said he wanted to clarify for the public that only the carved-out property owners would be able to build four stories.
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