ALF and the Asterisks – Attention to Details Matters

Two asterisks cost City of Boca Raton taxpayers nearly $200,000 in legal fees and costs.

Boca Raton residents can learn important lessons from the Assisted Living Facility (ALF) debacle that resulted in a lawsuit and City actions to “fix” what may have otherwise appeared to be a minor revision in the City’s Comprehensive Plan. That revision, however, almost reshaped the City by opening the door to multi-family residential development in traditional single-family neighborhoods.

Every Florida city’s Comprehensive Plan is “king.” It is required by Florida law and is under state scrutiny. Cities must actively manage their plans and review them on a regular basis. City staff members carefully create and manage the Comp Plan to ensure consistent and fair development of our city. Developers rely on the plan to know how they can develop property in the City. The Comp Plan is so important, in fact, that there once was a development in a Florida city that did not comply with the applicable Comp Plan and the state forced the owner to tear down the non-compliant structure.

Planners in the City of Boca Raton Development Services Department are charged with making sure the City maintains and complies with its Comp Plan. They weigh proposed developments against the Comp Plan to make sure the developments comply.

The periodic Comp Plan amendments are put up for a vote by the City Council. The latest round of major amendments received a final vote in 2020.

A unanimous City Council (Scott Singer, Monica Mayotte, Andrea O’Rourke and Andy Thomson; Jeremy Rodgers was absent) voted on July 28, 2020 to approve Ordinance 5490, which adopted amendments to the plan. After almost no discussion of the Comp Plan amendments, Thomson made a motion to approve the Ordinance. Mayotte seconded Thomson’s motion. [citation below] To give an idea of how things like this can move slowly, the Planning and Zoning Board received a presentation of the Comp Plan Amendment from Development Services Department staff on April 8, 2019, during which there was no mention of ALFs.

Included in the Comp Plan amendments was something new in Policy LU.1.1.6 (Page 36 of the linked Ordinance 5490). Two asterisks (“**”) next to several of the designated land uses lead readers to this sentence at the top of Page 38: “**75 beds per acre for convalescent homes, nursing homes, assisted living facilities, hospitals, and similar uses where these uses are permitted pursuant to the applicable land use designation and zoning.” [citation below]

It is not mysterious that the “**” language found its way into the City code. Mayotte introduced Ordinance 5487, which contained the “75 beds per acre” language at the May 14, 2019 regular City Council meeting. The Ordinance had a first public hearing at the May 29, 2019 regular City Council meeting and then a final hearing at the June 11, 2019 meeting. All five Council Members, including Mayotte and Thomson, voted to approve the Ordinance. [citations below]

The new language had the City of Boca Raton saying a property owner in a single-family zoned neighborhood could obtain city approval to build a 75-bed facility on an acre of land.
An owner who owns three acres, therefore, could potentially build an Assisted Living Facility with 225 beds. The approval process is not straightforward, but a local developer saw a path to approval.

A property that could’ve potentially benefited from the Comp Plan change approved on July 28, 2020 for Policy LU.1.1.6 is land with a church at 2 SW 12th Avenue. The church was built in the early 1960s on the northern edge of Boca Raton Square. The city approved the church to be built in the single-family neighborhood as a conditional use. Other conditional uses include parks, schools and daycare centers.

Several months after the March, 2021 re-election to City Council Seat D, Monica Mayotte emailed City Manager Leif Ahnell with the message that she was sponsoring a language amendment in the City code that would add assisted living facilities to the list of conditional uses allowable in single family neighborhoods. It appears the public was not aware prior to the March 2021 election whether Mayotte intended on advancing this idea. Had I known about it, I would have highlighted it as part of my campaign for Seat D in that election.

With that Council Member sponsorship and knowledge about the “**” reference in the Comp Plan, the Assisted Living Facility developer proceeded with the difficult and expensive work of designing the project, committing funds to it, obtaining City planner feedback, meeting City requirements and committing to various engineering studies. The amendment in the Comp Plan helped increase the chances of approving the ALF. All of this is a normal part of real estate development.

Between the 2020 Council-approved Comp Plan amendment and Mayotte’s post-re-election 2021 sponsorship, it probably appeared to all involved that the development was progressing.  Indeed, the conditional use language change only needed three votes from City Council to proceed. The other option would have been to rezone the property, which would have required four City Council votes, a more difficult and potentially volatile fight once neighbors figure out what is happening in their neighborhood.

But then a neighbor near 2 SW 12th Avenue asked what some guys collecting soil samples were doing. They answered that it had to do with a planned Assisted Living Facility replacing the church. The neighbor immediately worked with other neighbors to learn more about the proposed development, to circulate petitions, to speak about the ALF at public meetings and to post yard signs.

The project came before City staff in a public Planning Advisory Review (PAR) meeting that included notes about the significant public opposition to the hoped-for conditional use language change.

Ultimately, the City declared the developer’s application null and void and amended the Comp Plan to remove the “**” reference. The developer sued the City in April 2022 and voluntarily dismissed the case in August 2023. [reference below]

The City of Boca Raton spent taxpayer funds on legal fees and expenses of $191,335.35 to defend itself in the Religious Science Unlimited Inc. lawsuit. It is likely that the developer, who hired several attorneys to pursue the case, spent significant resources out of his own pocket.

Details matter. Missing them costs taxpayers and property owners money. In this case, the problematic “**” detail didn’t get a mention in the Development Services Department petition for the April 18, 2019 Planning and Zoning Board regular meeting, during which no P & Z board member asked about it. A year later nobody on the City Council asked questions about the change. City Council members and board volunteers carry a heavy burden. It is important that they ask questions and look for pitfalls in the policies that come before them for approval.

 

 

 

Minutes of July 28, 2020 City Council Meeting:

https://docs.google.com/gview?url=https%3A%2F%2Fbocaraton.granicus.com%2FDocumentViewer.php%3Ffile%3Dbocaraton_2121bda80e96d875e50d40a89019e98f.pdf%26view%3D1&embedded=true

Video of July 28, 2020 City Council Discussion of Ordinance 5490:

https://bocaraton.granicus.com/player/clip/1854?meta_id=139857

Minutes of May 14, 2019 City Council Meeting:

https://docs.google.com/gview?url=https%3A%2F%2Fbocaraton.granicus.com%2FDocumentViewer.php%3Ffile%3Dbocaraton_0fa20a8a472c72e22e9d892f953bc1ab.pdf%26view%3D1&embedded=true

Minutes of May 29, 2019 City Council Meeting:

https://docs.google.com/gview?url=https%3A%2F%2Fbocaraton.granicus.com%2FDocumentViewer.php%3Ffile%3Dbocaraton_2e225e9def5f084893f54cae9bddd6d0.pdf%26view%3D1&embedded=true

Minutes of June 11, 2019 City Council Meeting:

https://docs.google.com/gview?url=https%3A%2F%2Fbocaraton.granicus.com%2FDocumentViewer.php%3Ffile%3Dbocaraton_1c5e6d2cbb8b4f910c94d7336fabf3e9.pdf%26view%3D1&embedded=true

 

Note [1] I was a candidate for Boca Raton City Council, Seat D in the March, 2021 Municipal Election. Monica Mayotte was the incumbent.

Reference to Lawsuit:

Palm Beach County Case Number: 50-2022-CA-003848-XXXX-MB
Case Style: RELIGIOUS SCIENCE UNLIMITED INC V CITY OF BOCA RATON

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