7th Avenue, view looking NE
7th Avenue, view looking NE ()

Residents within walking distance of the mega Atlantic Crossing project have filed suit against Delray Beach to force the developer to create two roads promised in the original site plan.

Atlantic Crossing has been in the works about 10 years, and developer Edwards Cos. received the green light in January from city commissioners for the $200 million project.

But some residents say the latest plan is not the one originally approved.

“We feel that something very serious has failed here in Delray Beach,” said Bruce Leiner, president of Harbour House Homeowners Association Inc., whose members live about 500 feet from the proposed development.

The lawsuit filed on the group’s behalf by attorneys Robert Hartsell and Sarah Hayter argues the developer reneged on a promise to build two access roads to support the 11,000 cars expected daily. The suit said city approval in 2009 gave the developer nearly an acre of public land in exchange for an additional surface road from Federal Highway. But the latest plans approved in January allow the developer to keep the public land without delivering the road, the suit claims.

“Basically we want them to keep their promise,” said Hartsell of Robert N. Hartsell P.A. in Pompano Beach. “That road was initially part of the promise for abandoning the easement.”

Change Of Plans

Originally called Atlantic Plaza II, the project planned by CDS International Holdings Inc. was envisioned as sprawling mixed-used development with 132,000 square feet of specialty retail, 197 luxury residences and 106,000 square feet of Class A office space. The 8.5-acre site is adjacent to Veteran’s Park along the Intracoastal Waterway at the corner of the city’s main streets, Atlantic Avenue and Federal Highway.

CDS’s proposal included a plan to redesign area streets. The developer asked the city to abandon Northeast Seventh Avenue in exchange for two thoroughfares. That site plan called for moving Seventh Avenue slightly east. Another new road, Atlantic Court, would run east-west from Federal Highway to Seventh.

Residents who filed suit say this promise was a key consideration in the approval process because it created 13 access points, including eight routes from Federal Highway. The plan would channel up to 40 percent of the development’s traffic from the new roads to Federal Highway, reducing congestion on Atlantic Avenue, and narrow adjoining residential streets.

But the current plan makes no mention of the street changes and leaves only two access points—from Northeast Seventh Avenue either via First Street or Atlantic Avenue, residents say.

“One fender bender at Seventh Avenue and Northeast First Street, and I’m locked in,” resident Michelle Amiel said. “Folks enjoying Veteran’s Park and Delray Yacht Cruises would be similarly trapped. It’s a safety issue.”

Request for Judicial Review

The 346-page lawsuit claims a lack of other processes for appealing the city decision. The Feb. 20 action filed in Palm Beach Circuit Court petitions for a writ of certiorari requesting a judicial review of the city order approving the site plan. It argues that the approval violates the city’s land development regulations, and homeowners plan to build a prima facie case to persuade the court to quash the city’s decision/order.

Part of the issue might be the project’s multiple incarnations over the last decade. CDS has partnered with Columbus, Ohio-based Edwards Cos. to rework the plan, shrinking the office and retail-restaurant components to 83,000 and 76,000 square feet, respectively, and adding hundreds of apartments and 82 condominiums, according to the project’s website.

Marketing materials call for six buildings ranging from three to five stories, 1,104 parking spaces, two swimming pools, grassy courtyards, plazas and lush landscaping on more than nine acres spanning two blocks between Atlantic Avenue and Northeast First Street and between Northeast Sixth Avenue and Veterans Park.

The problem, homeowners say, is the new plans omitted key provisions without the permission of the city’s planning and zoning board.

“The city has essentially gifted Atlantic Crossing nearly an acre of land for the promise of an access road,” said Leiner, whose four-household association is based at 825 NE First St. in Delray Beach. “Atlantic Crossing kept the land and abandoned the promise.”

Falling Short

Edwards Cos. did not comment on the original road plan, but its attorney, Stanley Price, said the homeowners’ suit does not support their claim.

“We believe that the sole issue before the court is whether the petition for writ of certiorari can demonstrate that there was no competent substantial evidence before the City Commission,” said Price, a Miami partner at Bilzin Sumberg Baena Price & Axelrod and chair of the firm’s government relations and land development practice. “We support the city in their determination because under Florida law, a favorable recommendation from the professional staff of a municipality has consistently constituted substantial competent evidence to support a land-use decision by a local government. The test applied by the courts is not whether there was any evidence to support the decision. The petition in this case falls far short of supporting the claims of the homeowner association.”

City Attorney Terrill Pyburn did not respond to inquiries by deadline.

The suit is the second grassroots legal action in recent months. In July, after Edwards Cos. filed a countersuit, six residents dropped a lawsuit trying to reverse a commission decision allowing the developer to build at greater heights and densities larger than city rules allow.

But in this case, Leiner said his four-member group does not oppose the development or the scale of the project.

“We’re not looking to stop it,” he said. “But we want them to put the road back in.”