Commission Votes Down Settlement Agreement, Supports Building Height Limits Downtown

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By: Marisa Herman Associate Editor

A legal battle over downtown Delray Beach building height may be back in court after plans to settle pending litigation against the city was rejected by a majority of the city commission last month.

In a 2-3 vote, Mayor Shelly Petrolia and Commissioners Bill Bathurst and Ryan Boylston rejected passing a city rule that would settle litigation that two downtown property owners filed against the city for nearly $7 million. Commissioners Shirley Johnson and Adam Frankel supported the settlement agreement.

The argument deals with building height downtown. In 2015, the commission at the time, limited the building height on Atlantic Avenue to three stories or 38 feet from four stories or 54 feet.

The decision to cap building height from Atlantic Avenue between Swinton Avenue east to the Intracoastal Waterway was lauded by residents who felt the downtown was becoming overdeveloped. Many saw the decision as a way to protect the city’s beloved main drag.

But, according to the property owners who filed the suit, Billy Himmelrich and David Hosokawa, they were not properly noticed by the city of the change in height.

The property they own currently houses popular restaurants Cabana El Rey and Tramonti. The proposed settlement would carve their properties out from the reduced height district and restore their ability to build up to four stories.

The property owners filed a suit under the Bert Harris Act, which protects private property rights. Typically, property owners have one year to file a lawsuit if a local government changes land development rules.

Since the owners allege they did not receive the proper notice of the change from the city, the one year clock to file a lawsuit did not begin ticking back in 2015.

The suit filed for $6.9 million is what the owners say they lose in property value without the additional height.

The settlement agreement was discussed by commissioners in a closed door setting not open to the public. The rule to carve out the contested property was passed on first reading.

But when it came to final approval last month, Commissioner Ryan Boylston switched his vote.

According to city staff, there was at least one additional property owner who was not properly noticed in 2015 about the change in height downtown. Boylston said if the property in question was the one next door to Himmelrich and Hosokawa’s building he would flip his vote.

He said he couldn’t support the rule change if he knew there were other property owners who could potentially come to the city asking for the same request.

From the get-go, Mayor Petrolia and Commissioner Bathurst opposed the settlement.

Mayor Petrolia said passing the city rule that limited height downtown to three stories was a night that ended in applause from the residents in attendance that night.

But Commissioner Frankel said he didn’t want to take a chance with the court system. He said the judge assigned to the case can be unpredictable in rulings. Palm Beach County Circuit Court Judge Jaimie Goodman is the judge presiding over the case.

Commissioner Johnson said the city needed to make right on its mistake of the improper notice.

Taking the matter to court could potentially place the taxpayers on the hook for the $6.9 million plus attorney’s fees if the court sides with the property owners.

About a dozen residents urged commissioners to not settle the suit at the meeting. They asked commissioners to preserve the quaint charm of the downtown and vote the proposed rule change down.

After they prevailed with the vote they asked for, many took to social media to celebrate. They thanked commissioners for siding with the residents.

The court docket has not been updated with any scheduled meetings or hearings as of press time.