Boca Raton: Judge rebukes officials, orders new review of proposed beach house

A federal judge has ordered Boca Raton to reconsider its 2019 denial of a permit to build a home on the beach and barred Mayor Scott Singer and City Council members Andrea O’Rourke and Monica Mayotte from taking part.

U.S. District Judge Rodney Smith excoriated the three officials for bias they showed under oath and said some of their actions were apparent violations of Florida’s Sunshine Law. He saved his strongest words for O’Rourke.

“The record is replete with her bias all over. … Her credibility is totally shot,” Smith said.

Natural Lands LLC sued the city in federal court, claiming that the vote by Boca Raton’s elected officials stripped its property at 2500 N. Ocean Blvd. of all economically beneficial or productive use. It bought the .34-acre parcel in 2011 for $950,000; its plans for a four-story, single-family home provoked a public outcry.
After a five-day non-jury trial, Smith on March 24 declined to rule the case an unconstitutional taking of land by the city government, saying case law required that the property have no remaining economic value.

The property at 2500 N. Ocean Blvd. will come back to the City Council for consideration. Photo provided

“The emphasis on the word ‘no’ in the text of the opinion was, in fact, reiterated in a footnote,” Smith said, sending the case back to the City Council.

But Smith had little good to say about the three elected officials.

“I can tell you, from the beginning I was somewhat taken aback,” Smith said. “I don’t believe it for one minute that they would even consider being fair and impartial to Natural Lands under any stretch of the imagination at all.”

Singer, he said, was obviously biased and his testimony “made it clear as to his stance — he cannot be a fact-finder and impartial decision-maker in this particular matter.”

Smith found that to be particularly irksome because Singer, who was out of town and testified via video recording, is a lawyer. “He could not even address … what does the term ‘being fair’ mean. He looked at us like a deer in headlamps who was a person, a trained lawyer, that he has never heard of the word ‘fair’ before,” Smith said.

O’Rourke, the judge said, presented “unbelievable” testimony on the witness stand. At one point she “pretended” that she did not know she had been prohibited from voting in the case by the Palm Beach County Circuit Court and the 4th District Court of Appeal, he said.

Mayotte, too, “demonstrated complete bias from the start,” said the judge. “Clearly she had no business casting a decision knowing how she felt.”

Of all three council members, Smith said, “their beliefs were strong to the point where it was stronger than Gorilla Glue as to their bias that no property or nothing would ever be built.”
Smith deviated from the earlier circuit court and 4th DCA rulings in the Coastal Construction Control Line vote, which declared only O’Rourke and Mayotte biased, by tagging Singer as well.
Court documents showed Singer on Aug. 23, 2018, for example, emailed a resident that “Based on the potential impact on our dunes and sea life (including turtles), I will NOT support granting a variance that would be needed to allow the coastal construction for this lot and the proposed home there. My policy has been and still is to protect our beaches and green space.”

Midway through the trial, Smith allowed evidence to be presented on the actions of then-Deputy Mayor Jeremy Rodgers, who is no longer on the council, but did not specifically discuss it while making his ruling.

The Natural Lands lawyers discovered that the city had stipulated in similar litigation involving nearby 2600 N. Ocean Blvd. that Rodgers in August 2017 emailed a resident to say, “I’m of course going to continue going NO on 2500 and likely NO on 2600.”

That case also includes Facebook Messenger exchanges between Rodgers and O’Rourke regarding the beach parcels and Sept. 17, 2018, text messages between O’Rourke and Mayotte, court documents show. Florida’s Sunshine Law prohibits two or more elected officials from discussing issues outside of meetings.

But the end result of the Natural Lands case is that the partnership will again have to submit its application to the city to build seaward of the Coastal Construction Control Line. During the trial, Deputy City Manager George Brown and Development Services Director Brandon Schaad testified that the owner could submit a plan for a smaller house.

And despite their emails in evidence to the contrary, Singer, O’Rourke and Mayotte all testified that they might have approved a smaller structure.

Smith relied on that for his ruling.

“The court does not find that there has been a total taking,” he said, while noting that Natural Lands’ right to build a single-family home on the parcel “is a vested right,” meaning it existed before the partnership bought the property and will stay with the land if Natural Lands sells it to someone else.

Smith’s decision that Singer, O’Rourke, Mayotte and anyone else who was “tainted by them” cannot take part in the reconsideration means three sets of fresh eyes for the application. Term-limited O’Rourke’s last day in office was March 31. Without Singer and Mayotte, the issue will be decided by Yvette Drucker, Fran Nachlas and Marc Wigder, who all took office long after the Natural Lands vote.

Smith also ordered the city to pay Natural Lands’ attorney’s fees and costs.

Gavriel Naim, a Natural Lands partner who sat through the trial, said he needed time to digest Smith’s ruling before commenting on it.

“I won on my right to develop my property,” he said.

Brown, who also sat through the trial as the city’s representative, said only that when Natural Lands resubmits a plan, “We’ll consider it.”

Drawings show LEFT: the side of the building that faces Ocean Boulevard with two driveways and RIGHT: the mostly glass side of the building facing the beach. Renderings provided

Natural Lands planned to build a 48-foot-tall, 8,666-square-foot single-family home at the site and obtained a Notice to Proceed from the state Department of Environmental Protection in October 2016.

The City Council caused a public outcry in December 2015 when it approved a zoning variance at 2500 N. Ocean to allow something to be built on the 88.5-foot-wide lot. City rules normally require lots at least 100 feet wide.

It denied the CCCL variance on July 23, 2019.

Singer did not immediately return a call seeking comment.

Before the trial, the city offered to pay Natural Lands the $950,000 it paid to buy the parcel to drop the case. The partnership declined.

During the trial, Celora Jackson of the state DEP testified that any construction project on the beach would have adverse effects on sea turtles but that her department made sure there were no “significant” adverse impacts before issuing a Notice to Proceed.

Article Link: Boca Raton: Judge rebukes officials, orders new review of proposed beach house
Author: Mary Kate Leming