Delray Landowners Lawsuit Against City Over Building Height Tossed Out By Judge

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Property owners file for rehearing

By: Marisa Herman Associate Editor

Almost a year after downtown Delray Beach property owners Billy Himmelrich and David Hosokawa filed a lawsuit against the city of Delray Beach, a judge has dismissed their complaint.

The suit was over downtown building height limits. It alleged the height limits imposed by the city a few years ago restricted their property and development rights.

The two co-own DHBH Atlantic LLC. That entity owns four parcels on East Atlantic Avenue-two buildings that house  restaurants Tramonti and Cabana El Rey, and two parking lots.

The suit stated the city violated the Bert Harris Act when it imposed a new development rule that restricted new construction to three stories or 38 feet. Previously four-stories had been permitted.

The property owners sought $6.9 million, which they claimed was a loss in fair market value of the four parcels.

The suit alleged the company wanted to build a four-story hotel on the property and that city officials were aware of the plans. But they had not filed a formal application for development with the city.

Circuit Court Judge Jaimie Goodman sided with the city and dismissed the complaint on April 26.

Goodman called the claim filed under the Bert Harris Act “not yet ripe” because the land owners never submitted a development application to the city.

“A property owner cannot state a claim under the Harris Act when the owner never formally applied to develop the property,” the motion to dismiss states.

Commissioners nearly settled with the landowners in a deal that would have removed the new height restriction from their property. Ultimately that deal was turned down by commissioners.

Judge Goodman dismissed the complaint without prejudice, which means DHBH Atlantic can file a new lawsuit if and when an application to develop the properties is submitted and denied.

DHBH attorneys filed a motion for a rehearing on May 6.