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:
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.