We fight the fights that need to be fought….
Boca Raton is under attack! Residents from all over town are fighting the good fight against the ever-expanding impact on their quality of life; a quality of life that has, over the last decade, dramatically changed through the votes of a ‘developer friendly’ city council. This must end!
In the last two weeks, our elected officials voted on two items reflecting their ‘tone deafness’ to the sentiments of residents; to wit: University Village and 2500 N. Ocean; two items both decided on 4-1 votes.
The University Village vote has now been approved and is beyond the local body’s action. It, however, is not beyond a circuit court challenge; BocaWatch encourages such a challenge. The 2500 North Ocean vote is not yet beyond local action.
Any council member on the prevailing side of that 4-1 December 8th vote may, at the next scheduled City Council meeting, make a motion to reconsider their vote. If a council member were to consider such a procedural move, this action would be placed on the agenda for discussion. That said, when the item is brought forward, any other council member may second the motion to engage the local body to reopen the item for further consideration.
So why might a council member consider such a move?
Because our most precious asset, our beach is at risk….that’s why…..
This item, 2500 N. Ocean, has had two denials at the Zoning Board of Adjustment. After the 2nd denial, the applicant appealed to the city council. That appeal resulted in an affirmative 4-1 approval vote.
In conversation with one of the affirmative votes, I was told that a deciding factor was that a denial would be appealed to the circuit court where the city would lose; costing the city substantial attorney fees and creditability. Another reason offered from this affirmative vote was that there have been many other variances granted to properties in this subdivision creating precedent to follow in this current application. And….finally, that to deny the variance would be tantamount to a ‘taking’ by government and therefore actionable for denying the property owner a reasonable use of the land.
The applicant’s representative argued that this is private property and that denial of the variance would deny the property owner of the “beneficial use”. He further stated that the property is a substandard lot needing the variance for the development of a single family home. He does, however, concede that the granting of the variance is “subject to the discretion of the local body.” These remarks were made affirmatively and loudly.
What was not said as loudly, however, was that the applicant had purchased this lot along with property on the west side of A1A; that the lot on the west side has been sold to a third party entity; and, that the applicant, after purchasing these combined lots, sold off the lot on the west side of A1A knowing full well that the remaining property on the east side of A1A would be substandard and not a buildable lot without the need for a variance.
What is the local body’s role in a quasi-judicial hearing?
In a quasi-judicial hearing, the local body is charged with a ‘fact finding’ task to create a record for a judicial review at the circuit court level. The local body is not charged with pre-determining the outcome of any subsequent circuit court action; fact finders are not judges and should not try to be…..
The standard for the fact finding body is “competent substantial evidence.” There are two elements within this standard; to wit; a quantitative element and a qualitative element. The quantitative element goes to the amount of evidence in the record for a court to review; the qualitative element goes to the type of evidence contained in the record.
In this matter, there is quantitative evidence to support either the granting or denial of the variance. Let’s also, for the sake of this essay, agree that there is qualitative evidence to support either result. With that as a given, case law demonstrates that courts are very reluctant to overturn the finding of the local body where there is qualitative evidence supporting the decision; it is not a situation where the sheer weight of the evidence wins. Hence, the consideration that a denial would result in a losing court challenge is a predetermination and arguably unsupportable.
Cases establish that there is a ‘reasonable use ‘standard employed by the courts. However before getting to this ‘use’ standard, one has to meet the criteria for a variance. In this case, the applicant knew full well that there was no right to build on this lot at the time of their purchase and also at the time of the subsequent sale of the property west of A1A; thus creating the exact circumstance complained of.
Moreover, the argument that there have been other variances granted in this subdivision is also without merit. Those variances are for properties on the west side of A1A; a major distinction. The applicant concedes that the granting of a variance is an individual determination to be made by the local body on a case by case basis. Hence, the other variances may be persuasive but are certainly not controlling.
What makes this case unique?
In the instant case, there are a number of factors distinct to this applicant and this property. Not to be redundant, the most distinctive item is that this is the one and only property that would be on the east side of A1A; a formidable change, if development is allowed, to Boca Raton’s commitment to keep our beach pristine and undeveloped. The argument that a denial would be tantamount to a ‘taking’ also fails on two points….1) the decision is discretionary to the local body; and 2) the applicant created the circumstances upon which he complains.
One last comment….staff is not innocent here….staff states that the criteria for granting the variance has been met on all counts. The record evidence to support this conclusory statement is weak. Any council member making this motion to reconsider would have the opportunity to inquire of staff how the determinations were made and on what evidentiary submissions they stand. The attorney for the opposition at the ZBOA hearing made significant argument as to why the criteria have not been met and suggested that a denial is merited.
For all these reasons and more, any of the prevailing affirmative votes can motion for reconsideration with the intention of changing his/her vote from granting to denying the variance.
The one affirmative voter with whom I have spoken absolutely should make this motion regardless of the risk of a loss in a circuit court action; a legal action threatened, but, as yet, not filed.
BocaWatch suggests that all residents interested in stopping this breach of the sanctity of our beach must send a loud message to the city council.
Development is second to character; Boca Raton’s beach is our character….
Residents should immediately deluge Councilmember Singer and Mayor Haynie with the demand to make this motion to reconsider. For sure, Councilman Rodgers will second the motion…email@example.com firstname.lastname@example.org
Subject: RE: 2500 North Ocean
Our beach is our greatest asset. This belief has been a consistent mantra of Boca Raton residents and elected officials for decades. Residents are truly concerned over the granting of a variance for the development of 2500 N. Ocean. The applicant, in this case, contributed significantly to the concerns of which he complains. The record evidence supports a decision in either direction. The granting of a variance is a discretionary action by the local legislative body. Residents believe that had the decision been to deny, the applicant may file an appeal. Residents also believe that given the totality of circumstances, a reviewing court will not overturn the denial. The record contains qualitative evidence to support a denial. Residents are requesting that either or both of you, as members of the prevailing side, file a Motion to Reconsider the Dec. 8th decision with the intent of changing your vote from approval to denial. The residents of Boca Raton are outraged that the city council would, under any circumstances, encroach upon the pristine nature of our beaches. The resulting damage is forever; the greater good is at risk. This is a fight worth fighting…..you reconsideration is the residents’ voice in this fight.
‘We fight the fights that are worth fighting…and saving our beach is certainly one fight we must fight….’