For Every (Court) Action There Is A (Appellate) Reaction


Will the 770 Palmetto Park Road debate ever come to an end????

 It seems that the public debate involving the 770 Palmetto Park Rd. location has been going on forever. The vitriolic conversation of two years ago has now evolved into a legal battle at the Appellate Court in Palm Beach County.

The Action….

Last month BocaWatch reported that the Circuit Court, on June 6, ruled in favor of the Petitioner, Royal Palm Estate Holding, et al (# 2015-CA-009676 that the City’s resolution ignored applicable provisions of the Boca Raton City Code.

The reviewing three judge panel held that the City departed from the essential requirements of the law and then granted the petition to quash the City’s resolution, remanding the matter back to the City for further proceedings consistent with its ruling.

Contained within the Circuit Court’s 11 page opinion are arguments about what constitutes a ‘museum’ for purposes of the City Code. Basically, the controlling question opined upon was whether the ‘My Israel Center’, as presented in the applicant’s filing, was or was not a museum under the prevailing code provision. The Court concluded that the Center was a museum and as such was not a permitted use in a B-1 Business Zoning designation.

After a lengthy review, the Circuit Court found that the ‘plain language’ of the City Code Section 28-302 did not include ‘museum’ as a listed use within the meaning of a ‘place(s) of public assembly’.   Furthermore, in a footnote on page 2 of the opinion, the Court references the disagreement in the record about whether the center was a museum and notes that in the City’s response, the City concedes that the ‘My Israel Center’ is a museum; a point not controverted in the proceedings below by the applicant.

Attached for your review is the Circuit Court June 6th opinion. Please take the time to read it and formulate your own opinion as to its merits.

And Now the Reaction….

On July 6th, TJCV LAND TRUST filed with the Fourth District Court of Appeal in West Palm Beach (2016.07.06 Trust’s Petition for Writ of Certiorari) a 31 page Writ of Certiorari requesting the Appellate Court to quash the June 6th order of the Circuit Court which granted Royal Palm a victory by quashing the City of Boca Raton’s resolution on the zoning question. The City of Boca Raton joined in this action with a separate filing on July 7th.

In this appeal, the Trust argues that a new “writ of certiorari is necessary and justified because: (1) the Circuit Court applied the wrong law and ignored the plain language of the City Code when it overturned the City Council’s decision to approve the site plan; and (2) that the Circuit Court denied due process of law by relying on arguments not raised by Respondents, Royal Palm Properties, LLC et al, in their petition for writ of certiorari or in the administrative proceedings before the city.”

In it brief, the Trust, argues that the Circuit Court applied the wrong law because it failed to give effect to the ‘plain language’ of the zoning ordinance governing the B-1 Local Business District; claiming that the applicable law is “unambiguous”.

In its second argument, the Trust advances the proposition that it was ‘denied procedural due process’. For this, the Trust relies on the notion that it was not afforded the opportunity to address issues of mutual exclusivity; a structural language argument of significant complexity. This argument states that the Circuit Court’s reversal of the City’s approved resolution was, at least in part, based upon this omitted element.

Appellate law can be very convoluted. On this we can all agree. However, here the basic issue(s) revolves around the ‘plain language’ of the City Code; both sides argue different interpretations of what is the ‘plain language’.

Attached is the full brief submitted by the Trust to the District Court of Appeal. (Attach the appellate brief) Of particular note is the expanded legal team brought in to make the Trust’s complex language construction argument. The Original lawyer for the Trust was Henry B. Handler, Esq., of Weiss, Handler and Cornwell, P.A.; a local firm that has been over the years a Tallahassee lobbyist for the city of Boca Raton.

Conspicuously added to the legal team from the Handler firm are William J. Berger, Esq. and David K. Friedman, Esq. These three local attorneys are now joined by four out of town attorneys; to wit: Jay P. Lekfowitz, Esq., Steven J. Menashi, Esq. Elliot C. Harvey Schatmeier, Esq., and Lawrence C. Marshall, Esq. from the New York and Chicago offices of KIRKLAND & ELLIS, LLP.

Seven attorneys to present argument that the Circuit Court in Palm Beach County applied the wrong law by ignoring the ‘plain language’ of the City Code; a 31 page document to establish that the Circuit Court is incapable of determining what is the ‘plain language’ of the prevailing code.

It sure is going to be a crowded courtroom at oral argument in the Fourth District if the case ever gets that far.

What’s next….

To complete the legal action/reaction cycle, Royal Palm Properties now has the opportunity to file an answer for the Court’s consideration. After that, the Trust will file a final response to bring to an end the pleadings elements in the Appellate Court. The Appellate Court then deliberates the issues and, in its discretion, either allow for oral argument or issues a ruling without such argument.

At any rate, time marches on….resolution for this matter is many, many months away.

May even be an issue in the March ’17 city elections…..Stay tuned….

Al Zucaro, Publisher

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  1. It’s amazing to me. All the council had to do was adhere to the zoning requirements. Instead, they insisted upon granting the exceptions they are so famous for granting. All this for ten feet? Truly amazing……..


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