Court Gives Developer Second Try at Boca Raton Oceanfront Construction

A developer planning an oceanfront duplex will get a new Boca Raton City Council hearing on the project — without the involvement of two council members who a court decided prejudged it.

A Palm Beach Circuit Court panel granted Azure Development LLC’s writ of certiorari petition against the city and quashed its denial of the proposal. The court concluded the two members’ written communications to residents before the vote showed they weren’t impartial when the first vote was taken.

Azure applied for a variance to build east of the city’s coastal construction control line set to protect on dunes and nesting sea turtles.

The City Council in February 2019 unanimously voted down the variance in a quasi-judicial hearing when council members are required to act as impartial judges.

“Political bias and adverse political philosophies are inevitable,” Judge Jaimie Goodman wrote in the opinion issued Wednesday. But the two council members went beyond an expected, natural bias in their communication with residents before the vote.

Council member Monica Mayotte assured residents she had “no intention of granting any variances seaward of the Coastal Construction Control Line,” according to the complaint. Council member Andrea O’Rourke wrote she was “not in favor of building on this sensitive precious land and will do all I can to prevent this from happening.”

“This was more than mere political bias or an adverse political philosophy — it was express prejudgment of petitioner’s application,” Goodman wrote. Judges Janis Brustares Keyser and G. Joseph Curley concurred.

Jamie Cole, a Weiss Serota Helfman Cole & Bierman partner who represents the city, disagreed that the two council members prejudged the variance.

Cole, who is the firm’s Fort Lauderdale office managing director, clarified the court’s finding doesn’t amount to approval of Azure’s project.

“The city does not agree that the two council members had prejudged the application, which was denied on a unanimous 5-0 vote. This decision does not approve the application but merely calls for another hearing limited to the remaining three members of the council,” Cole said in an email. “The city is currently analyzing whether to appeal the decision.”

O’Rourke declined comment, and Mayotte didn’t respond to a request for comment by deadline. The two are not defendants in the litigation.

Cole said the opinion touches on a bigger issue for elected officials.

“This decision addresses the delicate balance that local elected officials face between their responsibilities to their constituents and their role in quasi-judicial hearings regarding development applications,” he said.

Azure, which filed its March 2019 petition through affiliate 2600 N Ocean LLC, and its attorney Robert Sweetapple see things differently, saying there is institutional bias in Boca Raton against oceanfront development.

“Boca Raton has engaged in a decades-long program to deny any development of this private, taxpaying oceanfront property,” Sweetapple said in a statement after the court decision. ”To date it has failed to acquire the property as part of its spectacular oceanfront park system. The continued denial of any reasonable development of this parcel constitutes a taking. The ongoing illegal actions of the city will continue to be addressed in the courts.”

Sweetapple, managing member at Sweetapple, Broeker & Varkas’ Boca Raton office, represents Azure with Jones Foster shareholder Roberto Vargas in West Palm Beach.

Azure at one point offered to sell the lot to the city for $7.2 million, the value of the land reported in a city-commissioned appraisal that assumed the variance was granted. The city declined.

Azure, a Delray Beach-based luxury home developer, wants to build a four-story duplex on a vacant 0.42-acre lot its owns at 2600 N. Ocean Blvd.

The beach in the area is a nesting ground for loggerhead, green and leatherback turtles.

Azure said its design exceeds city requirements and would have had a minimal impact on turtles. The building would have glass fronting the ocean manufactured to limit reflectivity to 8% and keep interior light transmission to 10%.

The city’s response in court said the project would be a significant detriment to the environment and the applicant failed to satisfy all six criteria for receiving a variance. City staff recommended the counsel deny the request.

“In the professional opinions of the city consultant, the city marine conservationist and the professional staff of the city’s Department of Development Services, the proposed duplex as designed by the petitioner would cause substantial negative environmental impacts, primarily to threatened and endangered nesting sea turtles by causing disorientation but also to the dune ecosystem and native vegetation,” Weiss Serota partner Laura Wendell wrote.

Azure also took aim at Mayor Scott Singer for a re-election campaign video posted shortly before a preliminary city consideration of the project in 2018. Singer “promised city residents that he would not approve of any oceanfront construction ‘based on the environmental evidence that exists,’ ” Goodman noted in the opinion.

The three-judge panel ultimately saw the mayor’s video as different from O’Rourke’s and Mayotte’s writings to residents. The mayor stated a “ general political stance.” Unlike Singer, the two council members specifically addressed Azure’s application.

Goodman said council members are allowed to “express political views on the wider issue of oceanfront construction” but not to “prejudge the narrow issue of petitioner’s application.”

“In this case, it is hard to imagine that the two council members who commented on petitioner’s application were free from prejudgment with respect to petitioner,” the judge wrote.

Read the opinion:

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