Published On: Mon, Sep 17th, 2012

From City Council To County Courtroom

By: Al Zucaro

So what happens when a city council, with taxpayer money, joins with a determined developer in a legal challenge against the city’s own citizens?

A modern day version of the biblical story of DAVID AND GOLIATH, that’s what. And that is exactly what happened in Courtroom 11c at the Palm Beach County Courthouse this past Monday, September 10, 2012.

Co-plaintiffs, the City of Boca Raton and Archstone Palmetto Park, LLC fielded a ‘dream team’ of 6 high powered litigators, Goliath, against one lone attorney, David, representing five brave and determined Boca Raton citizens in the citizens’ ongoing saga asking for a referendum vote as guaranteed by the city’s charter. This referendum vote is challenging the February 14, 2012 development order which, if enacted as passed, will change the character of downtown Boca Raton forever and ever.

To listen to the ‘dream team’ lawyers, this development order is not the subject of a referendum vote due in large measure to legal reasoning that dates back in time almost two decades analyzing the city’s charter, binding and persuasive case law and the legislative intent around the 2012 legislation giving rise to this legal challenge.

Law is all about words and their meaning, sometimes plain and other times convoluted. This case is no different. So let’s examine some of the words found in the written pleadings and oral arguments of this case.

In the Court filings, one immediately finds the following stipulated facts which set the tone and backdrop for this modern day drama; to wit:

“The parties hereto have an actual, present, adverse and antagonistic interest in the subject matter of this Complaint” and, that there is “a bona fide, actual, present need for a declaration” from the court that the City is or is not prohibited from processing the referendum requested by its citizens.

Adverse and antagonistic are good descriptive adjectives describing the hostilities surrounding the city and its citizens throughout this controversy.

There are no disputed facts in this courtroom controversy. There is no argument that the citizens did not meet the City’s Charter requirement for a referendum vote on the ‘Archstone’ development order.

There is, however, convoluted legal argument that the subject 2012 legislative action did not include challenges to development orders such as the one presented in this controversy as this order is less than 5 parcels of land, and, that if the court were to rule as the defendant citizens are requesting, the entire legislative process would be rendered meaningless.

Can you imagine paying the hourly rates for the ‘dream team’ to dream up these far reaching legal arguments?

The simpler argument is made by the citizens’ lone attorney. He argues that the plain language of the disputed development order is, on its face, applicable not merely to the ‘Archstone’ parcel but to the entire downtown Boca Raton area. He further argues that, if adapted as written, this development order applies to all ‘downtown’ Boca Raton parcels and sets new rules for density, intensity, and developmental transfer rights for all land parcels within the described boundaries of downtown Boca Raton.

Without getting to far into the legal weeds of this case, it is worth mentioning that the Court is governed by a narrow standard of pre-election judicial review; to wit: that the proposed ballot question is facially unconstitutional in its entirety or contrary to or expressly preempted by state law.

There is no argument that the referendum ballot question is unconstitutional on its face but the ‘dream team’ does argue that the referendum is contrary to state law.

To establish this argument, the ‘dream team’ offers convoluted reasoning suggesting that the 2012 legislation has no express intent to support ‘retroactive’ application. A further argument is made that there is an ‘implied preemption’ based in large measure on case law and legal reasoning far beyond the limits of this column.

In response, the citizens’ attorney correctly points out that the language of the legislative act “does clearly express the legislature’s intent to retroactively apply the law”, and that the argument of an “implied preemption” is strongly disfavored by the Florida Supreme Court.

Lawyers are bound to follow the law. Good lawyers will always look for ways to overcome negative facts or case law that is in opposition to their desired outcomes. The lawyers in this case are good lawyers, professional and prepared. The arguments on both sides were creative, expansive and certainly within the realm of reasonable legal bounds.

Monday’s hearing was in front of Circuit Court Judge Lucy Chernow Brown. Judge Brown was well prepared, attentive and balanced. Her questions were insightful and reasoned; her demeanor professional. From a pure legal observer point of view, this was an excellent lesson in legal reasoning, argument, and courtroom drama.

No decision was rendered. The judge took the arguments presented under advisement and will rule in the near future….

The ‘dream team, Goliath, representing the city and the developer, seemed to leave the courtroom believing their convoluted arguments will win the day. The citizens’ attorney, David, also presented confidence in the expected outcome. We shall see what we shall see.

One thing is for sure, this is not the end of the court action or the political fallout. Whatever the court ruling, this observer expects that the case will be taken to the appellate level. If the co-plaintiffs prevail, the future of downtown Boca Raton will be forever changed. If the citizens prevail, that change will be, at best, delayed and the citizens’ bravery and diligence will live to fight another day….

Al Zucaro

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