The Atlantic Crossing vote
Going into Tuesday’s Delray Beach City Commission meeting, the best guess was that the vote on Atlantic Crossing would be 3-2. But which way? Which three?
After three hours, it came down to Mayor Cary Glickstein. Commissioners Mitch Katz and Shelly Petrolia had said they would deny Atlantic Crossing’s appeal of its site plan rejection. Al Jacquet and Jordana Jarjura were ready to grant the appeal, which would have amounted to approval of the site plan and might have led to a settlement of Atlantic Crossing’s lawsuit against the city.
At first, it seemed that Glickstein would vote with fellow lawyers Jacquet and Jarjura. His job, Glickstein said, was “to manage growth but also risk.” The lawsuit asks for $25 million in damages. “It does this city, “Glickstein added, “no good to litigate.” But then he said that problems related to the project—almost all of then involving traffic—“have not been solved to my satisfaction,” and he became the third vote to deny the appeal.
The immediate reaction from Atlantic Crossing was predictable. In a statement Wednesday, Edward Companies Vice President Don DeVere—Edwards is the joint venture partner with CDS International Holdings—said the commission majority “decided that they would rather litigate than work together and follow their own rules. They missed this opportunity to resolve the issues and allow this great project to move forward.”
Similarly, Glickstein began his comments Tuesday night by speaking of “missed opportunities.” He recalled meeting in December 2013 with Atlantic Crossing planner Michael Covelli and then-City Attorney Terrill Pyburn. Glickstein told Covelli that if the developers would add an acceptable access road from Federal Highway—on the west side of the project—“You could have a permit by summer.” Such a road—called Atlantic Court—had been in the original plan. It was not in the revised site plan the city commission approved in January 2014.
Instead, nearly two years passed before Atlantic Crossing redrew that new site plan to include a one-way access road. In January, the Site Plan Review and Appearance Board (SPRAB) rejected the first version after a city consultant criticized it. The consultant liked the second version. So did the site plan review board.
Edwards said, “We made every change that the city’s traffic consultants and staff asked for, and they concurred that the revised plan was a good one and that it met the city’s regulations.” Residents who live near the site, however, argued that the regulations don’t take into account the potential traffic impact, and that safeguards are inadequate if Atlantic Crossing violates one of the 78 conditions that would go with approval. The suggestion that the city’s code enforcement staff could resolve any problems quickly got a big laugh from the crowd.
“What the commission majority wanted,” Edwards said, “was not what they asked of us. But in an interview Wednesday, Glickstein said the problem with the access road is not that it’s only one-way—some residents had wanted two-way access—but that “it would look like a service alley. It just has to look like a street.” One person described the road Tuesday night as a “driveway.” Glickstein said, “It’s about what functions best,” adding that the traffic consultants took a too-narrow view. He noted that the original plan included a deceleration lane approaching the entrance from Sixth Avenue.
To fully understand Glickstein’s vote, however, means returning to that commission meeting of Jan. 21, 2014. The issue was whether the commission should hear private appeals—from residents—of the favorable recommendation two months earlier by SPRAB of the new plan for Atlantic Crossing.
Glickstein and Petrolia had been elected 10 months earlier, having campaigned as reformers who criticized Atlantic Crossing as being too intense for the site. They voted to consider the appeals. Jacquet, Adam Frankel and Angeleta Gray voted for the site plan.
In his remarks at the time, Glickstein noted what he considered Atlantic Crossing’s internal traffic problems and the potential “harm to neighborhoods” that made up 30 percent of Delray’s tax base. He said cars waiting for valet parking could back up onto Atlantic Avenue. He called the plan “deeply flawed.” The project, Glickstein said, “has no margin for error.”
Much of what Glickstein said then sounded like what we heard Tuesday night, down to questions about the valet parking. Like many of the neighbors, Glickstein said in 2014, “I support the project.” Rather than NIMBY—Not In My Backyard—they were QUIMBY—Quality In My Backyard.” Bruce Leiner, whose Harbour House condo unsuccessfully challenged the project in court, said Tuesday that recent changes have resolved “99 percent” of his issues. “We are prepared for war,” he said, “but we come in peace.”
Glickstein’s frustration in 2014 was the “reluctance” of Atlantic Crossing to address the city’s issues. He expressed the same frustration to me on Wednesday, complaining that the developers maintained for so long that they couldn’t return an access road to the plan. Events showed, however, that they just didn’t want to. Atlantic Crossing’s action created “a level of distrust.”
Though Glickstein said “the significance of the deficiencies is compelling,” disliking the project would not be grounds to reject the site plan. He also believes that “the legitimacy of the city’s (legal) case is compelling.”
What happens now? For the moment, both parties likely will focus on the lawsuit, which has a trial date in October. Motion rulings over the next few weeks would allow Atlantic Crossing and the city to assess their chances. The case might even get sent back to state court from federal court, a shift that would reduce the amount of damages Atlantic Crossing could collect.
A trial, however, would further delay construction—for at least a year. One theory I’ve heard for Atlantic Crossing’s attitude and multi-lawyered approach is that the developers all along have wanted to secure approval for the highest use, and then flip the project. If that theory is wrong, the smart move would be for Atlantic Crossing to turn Tuesday night’s defeat into an opportunity—and not miss this one. Atlantic Crossing then could finally spend its money on construction—not lawyers.
How the change came about
One more thought on Atlantic Crossing:
If I had to pick the key pivot point between the developers and Delray Beach, it would be last August.
The city was trying to negotiate a resolution to the access road issue. Atlantic Crossing had sued in June, but the tone from the developers was moderate.
On Aug. 21, however, Atlantic Crossing planner Michael Covelli sent the city a hostile letter. Failure to schedule a needed hearing on the project, Covelli wrote, “will continue to further cause Atlantic Crossing to incur monetary damages.”
Note that the letter didn’t come from a lawyer. It didn’t go to the city attorney. It went to Planning and Zoning Director Tim Stillings. From the city’s perspective, the letter was a stealth attempt to prevent Delray Beach from making any claim to an alley the city had abandoned for Atlantic Crossing. If Delray hadn’t responded within five days from the date of the letter, that claim would have been at risk. The city’s position in the lawsuit would have been weakened significantly.
After he saw the letter, City Attorney Noel Pfeffer called an emergency meeting of the city commission that beat the five-day deadline by less than an hour. The commission gave Pfeffer authority to notify Atlantic Crossing that the city was seeking to take back the alley, on the grounds that the developers had failed to meet conditions attached to the abandonment of the property.
A month later, Atlantic Crossing filed its amended lawsuit seeking that $25 million. If the letter was meant as a tactic, it backfired.
Pfeffer exits
His action on that letter is just one of the reasons Delray Beach will miss Noel Pfeffer.
The city attorney announced in an email Tuesday to commissioners that he is resigning at the end of May to join the Fort Lauderdale firm of Conrad & Scherer. Pfeffer told me Wednesday that he got a “great offer” and will be closer to home. Pfeffer worked for many years in the Broward County Attorney’s Office and still owns his Fort Lauderdale house. Not surprisingly, he will specialize in government law.
Since the city attorney oversees the private firm handling the Atlantic Crossing lawsuit, Pfeffer’s departure comes at a bad time. Two other members of the five-lawyer office also are leaving soon. One is the most senior associate, Michael Dutko. Pfeffer said he would fill one of those vacancies before he leaves.
I have interviewed dozens of city attorneys, and Pfeffer is one of the best. He steered the Auburn Trace negotiations to a very favorable result for Delray Beach and oversaw negotiations that resulted in police and fire pension reform. He stabilized the office when he came in mid-2014. Most important, Pfeffer told the commissioners what he believed they needed to hear.
“It’s a huge loss,” Mayor Glickstein said. “He has such a great understanding of the issues, and he has been unfairly maligned” by some commissioners and residents. The commission will be lucky to find someone as good.
About the Author
Randy Schultz was born in Hartford, Conn., and graduated from the University of Tennessee in 1974. He has lived in South Florida since then, and in Boca Raton since 1985. Schultz spent nearly 40 years in daily journalism at the Miami Herald and Palm Beach Post, most recently as editorial page editor at the Post. His wife, Shelley, is director of The Learning Network at Pine Crest School. His son, an attorney, and daughter-in-law and three grandchildren also live in Boca Raton. His daughter is a veterinarian who lives in Baltimore.
