A developer who wants to build a mixed-use project on his 10 acres in Boca Raton is suing the city for refusing to consider his proposal.
It’s the third lawsuit against the city after it scaled back regulations for what was once envisioned as a live-work-play development.
Jupiter-based Cypress Realty of Florida LLC wants to build a 204-unit luxury apartment building and 64,000 square feet of retail at 1751 N. Military Trail, 21046 Commercial Trail and nearby lots. Cypress owns at least some of the lots through its affiliate, CR VII Boca TC LP.
The city in 2010 changed its comprehensive plan to guide growth and development and designated Midtown as a planned mobility area covering about 200 acres from Interstate 95 to St. Andrews Boulevard off Glades Road.
CR VII and Crocker Partners LLC, another property owner that sued, accuse the city of not following through and adopting the necessary zoning changes and other regulations that would allow Midtown investors to build in line with the new designation.
CR VII Boca TC LP filed a complaint for writ of mandamus Oct. 12, arguing the city has been “stonewalling” its project application pending since at least 2015 and asking the court to compel the city to consider the application.
Palm Beach Circuit Judge Jeffrey Gillen on Monday found CR VII’s complaint facially sufficient and ordered CR VII and the city to have a conference call within 10 days after CR VII serves the complaint with the court to schedule a hearing on the issue.
A city spokeswoman said the city was served Tuesday and its attorney was working on a response. The city had no comment by deadline.
In a Sept. 24 letter to Gunster shareholder J. Michael Marshall, a CR VII attorney but not the one who filed suit, the city said it can’t legally process the application because residences aren’t allowed on the site by the city or Palm Beach County code and the property has commercial zoning.
Cypress Realty wants to build a mixed residential-commercial project in line with its business model, said Nader Salour, a principal of CR VII and Cypress Realty.
“We bought it specifically because of the planned mobility designation, because the planned mobility designation encourages mixed-use projects, in other words residential and commercial, and that’s what we do,” Salour said.
CR VII bought the properties in 2011 and planned to demolish the existing Nippers Bar & Grill and Strikes@Boca bowling alley, he added.
Richard Sarafan, CR VII’s attorney who filed the suit, argued CR VII’s properties are not controlled by any city zoning regulations.
Sarafan of Genovese Joblove & Battista in Miami said in the lawsuit that the city annexed the properties in 2003 and Palm Beach County zoning and other development regulations governed the properties — but only until Boca Raton in 2010 approved the Midtown comprehensive plan amendment. At that point the properties no longer were governed by county zoning. But because the city did’t meet a one-year deadline to approve zoning corresponding to its comprehensive plan, the properties remain unzoned, he said.
The city disagrees. In a Sept. 24 letter to Marshall, the city argued the county’s 2002 Unified Land Development Code still applies to the properties.
Under the county code, the properties have a commercial general zoning, City Attorney Diana Grub Frieser wrote in the letter.
Since annexation, “the city has consistently applied the ULDC zoning district regulations to all of the annexed properties in the Midtown area (including the property), and the city has continued to apply the ULDC since the adoption of the 2010 amendments to the city’s comprehensive plan,” Frieser wrote.
When the comprehensive plan changes were approved in 2010, the changes “expressly” say county code remains effective, she added in her letter.
Cypress Realty has estimated a dollar loss from the development delay, but Salour declined to disclose the amount.
“The money is unrecoverable because we never estimated sitting on this piece of property for seven years,” he said.
The other two lawsuits pending against the city were filed bcand a leading Midtown investor with three properties covering 64 acres.
Crocker Partners sued the city first on May 22 over not adopting the needed zoning and on Jan. 23 for designating a small-area plan, which Crocker argued amounted to a development moratorium.
In its motion to dismiss, the city argued it could — but is not required to — adopt land development regulations that reflect the planned mobility designation. The city also said its land development regulations are consistent with its comprehensive plan, requiring no further action.
Palm Beach Circuit Judge Howard Coates Jr. on Aug. 27 granted the city’s motion to dismiss one count of Crocker’s lawsuit but left intact a second count challenging the constitutionality of draft ordinances that would require a master plan for the entire Midtown district.
Crocker, which hasn’t revealed a final development plan, sued Oct. 23 over the same issue, claiming $137 million in damages from lost property rights under the Bert J. Harris Jr. Private Property Rights Protection Act.