Everything you need to know about ORDINANCE 4035 in 5 minutes

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Boca Raton’s elected and appointed officials are scrambling to explain how so many of the existing and planned buildings in Downtown Boca appear to run afoul of our City’s basic development ordinance.

Perhaps it’s a scandal. We shall see. But giving everyone the benefit of the doubt, it might well be because almost nobody has paid much attention to the 65-page law. After all, it was passed over 20 years ago. So for those who haven’t the time or the inclination, here’s everything you need to know to monitor the upcoming Boca downtown development debate:

Ordinance 4035 is the law.

First, Ordinance 4035 is not guidance. It is the law. It is proscriptive, not suggestive.  Throughout its 65 pages, the words “shall” and “must” appear over and over. The word “guidance” never appears, although the word “guide” is used in the one section relating to architectural design, where the authors attempted to give developers some leeway to modify Mizner’s original designs. But the intent of that section is crystal clear: that all development in Downtown Boca should be harmonious with what is already there. Mizner Park is new, but it does not look out of place. Nor does it change the architectural look and feel of the Downtown.

Ordinance 4035 is written in plain English and it's easy to understand.

Second, Ordinance 4035 is not complex. It is lengthy, not because it is complicated, but because it is incredibly detailed. There are six pages of clear definitions, including ground-to-sky open space. Five pages of development review procedures. Six pages on parking.  Almost nine pages of landscaping do’s and don’ts, including the size and kind of trees you can and cannot plant. Four pages on architectural design, some suggestive, but others quite specific, such as “no more than 40% of the perimeter of a building’s materials shall be composed of glass.” And there are six pages of specific road improvements that must be completed before Downtown development is allowed to proceed. All of these pages are written in plain, unambiguous English. Don’t let anyone tell you otherwise. A fifth grader could understand the language in Ordinance 4035.

Why do you think the authors of this document in 1992 went to such lengths to include such detail? Probably because they did not feel that developers would get it right if left to their own devices. They understood that profit is a powerful motivator. The temptation to cram every possible square foot of marketable space on each Downtown lot would prove irresistible. And they were right. Ordinance 4035 is not a trusting document. Its authors did their best to protect Boca’s future. If they fell short, it was not for lack of trying.

Ordinance 4035 is a visionary document.

Finally, Ordinance 4035 is also a visionary document. Just look at the section on energy and infrastructure. The authors understood that more development in the Downtown—more people, more cars—was going to stress the few roads that service the area. Therefore, they required as many road improvements as they could imagine PRIOR to letting development proceed. Think about that. They improved the roads before they allowed the buildings. By comparison, the Interim Development Guidelines approved the buildings but said nothing about the roads or traffic. The mantra of the IDG was “Build it and they will come.”  But the corollary might have been “Build it and they will have no way to move around.” 

Boca last took a comprehensive look at its traffic needs in 1992. They should undertake a comprehensive traffic study now, before they allow Downtown Boca to get any bigger. That is one of the most important lessons one can learn from reading Ordinance 4035. 

An OPEN Discussion about “OPEN space” in ord. 4035

The revelation at a December 7, 2015 CRA meeting that for twelve years developers have been planning and constructing buildings in probable violation of the 40% open space requirements under the law, was more of a shock than a surprise.  A shock because of the blatant nature of the abuse; but not a surprise, because we have grown accustomed to seeing developers game the system to their economic advantage.

So we have questions that we think the CRA should urgently address:

BOCA RATON, VIA MIZNER, THE FIRST OF THREE MAMMOTH NEW BUILDINGS IN DOWNTOWN BOCA.NOVEMBER 15, 2015.


BOCA RATON, VIA MIZNER, THE FIRST OF THREE MAMMOTH NEW BUILDINGS IN DOWNTOWN BOCA.NOVEMBER 15, 2015.

First, was the crafting and use of the 7/28/03 Administrative Memorandum a case of incompetence, corruption, or both?

The language in the Ordinance requiring 40% open space is clear. It was included as part of a compromise which was approved by referendum in 1992. Developers admit that they helped craft the Ordinance. Did they also help city staff craft the Administrative Memorandum which according to the City Attorney “is inconsistent with the language of 4035,” which is a nice way of saying “violates the law”. Who wrote the memo and why? Was the modification to the open space guidelines in 4035 ever subject to Council discussion or debate? Why did no one notice the “inconsistency” until now?  How did this happen?

Second, how many buildings constructed under 4035 guidelines are in violation of those guidelines? The Mark? The Hyatt? Palmetto Promenade?  Via Mizner Phase I? How many pending development applications are also in violation of those guidelines?   

Presumably, the City has a way of finding out. Or is nobody paying attention? Is there no oversight? No enforcement?  We’re not just talking about the color of paint here.

Third, what are you going to do to correct the situation? 

You have a number of options, and you don’t need a developer-packed “workshop” to figure it out. You could take the historic pro-developer route and rewrite the 4035 Ordinance to provide amnesty to all illegal buildings and legal cover for projects going forward. Messrs. Gromann and Siemon will no doubt have lots of other ideas how 4035 can be “improved,” once opened to amendment. In other words, you can just sigh and say “never mind” and pretend this never happened.

Or you could enforce the law. You could grant amnesty to completed buildings under 4035—even though legally you don’t have to—but require that all yet-to-be-built projects strictly comport to the language in 4035. As your City Attorney pointedly remarked in your December 7th meeting “no one is ever allowed to rely on an error of law.” If a project is authorized under 4035 it must comply with the provisions of 4035. This is a legal matter, not a question of policy.

Most importantly, this oversight (or scandal) should not be an opportunity for the development lobby to try and get included in the Ordinance what they were unable to achieve when the original 4035 compromise was drafted, or what they tried to accomplish illegally through the now-exposed Administrative Memo of 7/28/03 and subsequent modifications.

This whole affair is an embarrassment to the City of Boca Raton. It is very likely to result in lengthy and expensive litigation, no matter what you decide to do. Having dropped the ball, it would be heartening to see you pick it up and run in a direction that pleases the residents who elected you. March 2017 is just over a year away.