The curious case of Atlantic Crossing
The strange interplay continues between Delray Beach and Atlantic Crossing.
On one level, the two sides are in court. Atlantic Crossing has sued the city, claiming due process violations because Delray has not given final approval to the mixed-used project on the two blocks west of Veterans Park.
On another level, it’s business as usual for a major project going through city review. On Nov. 23, Atlantic Crossing submitted a modified site plan. The Technical Advisory Committee is reviewing itZ—no report yet—after which it will go to the Site Plan Review Advisory Board.
All this over a road, and timing.
Only Al Jacquet remains from the city commission that approved Atlantic Crossing in December 2012 amid criticism that the project was too big for the site—343 apartments and 160,000 square feet of retail, restaurant and office space on 8.5 acres—and that it was being rushed to a vote ahead of city elections in three months. Jacquet voted against it. Approval also came under a former city manager and city attorney.
The developers—The Edwards Companies of Columbus, Ohio and Carl DeSantis—claim in their lawsuit that despite the approval Delray Beach “under a new administration, is now attempting to improperly undo the approval of Atlantic Crossing by, among other things, improperly delaying review of a final plat for the property. . .refusing to follow its Land Development Regulations as to certification of the site plan for the property, reinterpreting its previous actions relative to the property and the existing approvals and improperly claiming title to certain lands that the city has abandoned.”
Why would Atlantic Crossing be litigating as it seeks approval? Through a representative, Edward Vice President Don DeVere issued this comment:
“We are continuing the legal process until our property rights are secure, while still working to further a reasonable settlement with the city. Toward that end, we’ve submitted an application for a site plan modification that would include a roadway connecting Northeast Seventh Avenue and (Federal Highway) and are working with the city to confirm a timetable to complete that process. If we can obtain approval of this application, we could then settle all of the issues in the lawsuit with the city.”
Regarding the amended lawsuit Atlantic Crossing filed in late September, DeVere said:
“The city in its motion to dismiss suggested that the improper actions at issue were merely those of staff without involvement of the city commission. As a result, we were forced to provide additional details to show that this isn’t an issue of errant staff but a policy direction of the new city commission majority.”
That reference to the commission is important. The landmark case in Florida as to whether a local government wrongly denied a property owner development rights involves Pompano Beach’s 31-year fight with two brothers who wanted to build an 18-story project called the Yardarm at the Hillsboro Inlet.
Though the trial judge ruled for the brothers, the 4th District Court of Appeal overturned the $20 million award. In its opinion, the court noted that Yardarm “failed to establish that the acts for which it claimed damages were legislative, rather than executive acts. The evidence shows that these acts were done by various city employees and administrators applying existing rules and ordinances specifically to Yardarm, not by the commission as a body enacting legislation and policy decisions affecting the general public.” In other words, Pompano’s elected officials were not out to stop the project.
That case was litigated in state court. The Atlantic Crossing case is in federal court before U.S. District Judge Donald Middlebrooks. If Middlebrooks doesn’t grant Delray Beach’s motion for dismissal, the trial date is May 31. Atlantic Crossing seeks $25 million.
At one point last summer, it appeared that the developers and the city were close to settling. The commission wanted Atlantic Crossing to restore that access road from Federal Highway, to relieve traffic. The main entrance would be at Seventh Avenue and Atlantic. The road was on the original site plan, but was not on the modified plan the commission approved in 2014.
At a commission meeting, a traffic consultant presented two options for the road. But the meeting ended inconclusively. Atlantic Crossing is correct that the access road in the latest site plan is the consultant’s choice. We don’t know, though, whether it’s the commission’s choice.
So Atlantic Crossing and Delray Beach will begin 2016 amiable on one level and adversarial on the other. The best road still leads to compromise.
Pay raise note
When the Boca Raton City Council takes up the issue of salaries again next month, consider the picture from Tuesday night of the semi-drenched council presenting the University of Toledo with the Marmot Boca Raton Bowl trophy. Rain chased many spectators home early, but the council stayed to give Boca its moment on ESPN.
Done right, council service these days can be a 40-hour-per week job. The salaries still date to 1966.
Staples & Office Depot update
Staples and Office Depot this week lost their first appeal of the Federal Trade Commission’s decision to block the merger of the two companies. The $6.3 billion deal would place the headquarters of the combined office-supply retailer in Framingham, Mass. Office Depot is headquartered in Boca Raton.
On Monday, Staples issued a statement saying the company will continue negotiations with the FTC, which filed a lawsuit to stop the transaction. Regulators believe that a merger of the largest and second-largest brick-and-mortar office supply firms would reduce competition and raise prices for business customers.
According to antitrust analysts, Staples may be able to address regulators’ concerns by selling off assets, which could make the combined company less dominant. The FTC will seek an injunction against the merger. A trial would start in May, but a lawyer for Office Depot told The Boston Globe that the deal would be dead at that point.
As for the 2,000 Office Depot employees in Boca, Staples projects operational savings of $1 billion if the FTA approves the merger. There’s no telling what would happen to those employees, no matter how the FTC rules.
iPic vs. festivals
Add another element to the debate about the iPic project in Delray Beach.
The project would be between Southeast Fourth Avenue and Southeast Fifth Avenue, from just south of Atlantic Avenue to Southeast First Street. The entrance would be from Southeast Fourth Avenue.
This Saturday and Sunday, the two blocks of Southeast Fourth Avenue on either side of Atlantic will be closed for the Downtown Delray Beach Craft Festival. If iPic was open now, the city couldn’t consider such a closure. It’s another reminder that as Delray adds more stuff downtown, it has to start subtracting festivals.
Ho Ho Ho
Every December, certain commentators shriek that there is a “war on Christmas” in America. According to the Pew Research Center, 92 percent of all Americans will celebrate Christmas this year. Celebrating along with 96 percent of all Christians will be 81 percent of non-Christians. Pew also found that hearing “Happy Holidays” in stores isn’t that controversial.
So Merry Christmas. And Happy Holidays.
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.
