Since 1981, building on the on the beaches of Boca Raton required property owners be granted a variance from the City Council called a CCCL variance (City Code Section 28-1556). This variance is needed for beach development on any land that lies seaward of the coastal construction control line (CCCL) – that is, east of A1A.
Natural Lands was free to build on 2425 N. Ocean (west of A1A) when it owned it in 2011 since this lot is not subject to the City Ordinance forbidding construction east of A1A. Instead, Natural Lands chose to sell it.
How The Beach Property Owner Created Their Own Hardship
The owner of 2500 N. Ocean Blvd is seeking a CCCL variance to construct a 4-story building on its vacant beachfront lot. The City’s Environmental Advisory Board (EAB) recommended denial of the variance due to environmental concerns on April 10, 2019. Additionally, City staff recommended a denial of the CCCL variance for this beach development because the private land owner fails to satisfy the conditions for this variance. In order for a developer to qualify for a CCCL variance, they have to satisfy six distinct necessary conditions. Here we’ll look into the owners’ arguments for one particular condition: Making reasonable use of the property through a self-created hardship.
If Natural Lands LLC sold it to itself (in the form of a shell company), its inability to ‘make reasonable use of the property’ is self-created and ‘directly attributable’ to its own actions.
Making reasonable use of the property through a self-created hardship.
The vacant lot at 2425 N. Ocean lies right across the street from 2500 N. Ocean, immediately west of A1A. Several documents recently surfaced allege that 2425 N. Ocean Blvd. (right across the street on A1A from 2500 N. Ocean) may also be owned and controlled by the same developer. *
- Natural Lands LLC (incorporated in Florida) purchased 2500 N. Ocean in July 2011. This purchase also included 2425 N. Ocean as part of the same lot.
- In 2015, Natural Lands, LLC (Florida) split the property into two lots and sold the west lot (2425 N. Ocean) to Diamond Development Partners XVIII LLC, which had incorporated in Delaware ten days prior to the sale.
- This sale was to facilitate the developer’s application for a lot-width variance (denied twice by the Zoning Board of Adjustment), granted by City Council in December 2015, Jeremy Rodgers being the sole no vote.
- Diamond Development Partners XVIII is managed by the same individual named as the manager of Natural Lands LLC (Florida) and signer of Natural Lands LLC (Delware).
- Natural Lands LLC (Florida) sold 2500 N. Ocean to Natural Lands LLC (Delaware) in June 2017 . Both properties – 2425 and 2500 N. Ocean – are presently owned by Delaware LLCs whose privacy laws provide anonymity. So, we really don’t know who owns these two properties and whether they’re owned or controlled by the same interest.
Therefore the private property owner of 2500 N. Ocean DOES NOT need to build a 4-story building on its beachfront lot to make ‘reasonable use of the property’.
What Difference Does Ownership Make for this Beach Development?
1) Under City Code, the developer of 2500 N. Ocean qualifies for a CCCL variance to build ONLY if it satisfies six conditions spelled out by City Code. In part, the developer must show that the variance is necessary to ‘make reasonable use of the property’ and that ‘special and unique conditions are not directly attributable’ to its actions.
2) Natural Lands was free to build on 2425 N. Ocean (west of A1A) when it owned it in 2011 since this lot is not subject to the City Ordinance forbidding construction east of A1A. Instead, Natural Lands chose to sell 2425 N. Ocean. If it had in fact sold it to itself (in the form of a shell company), its inability to ‘make reasonable use of the property’ would have been self-created, that is, ‘directly attributable’ to its own actions.
3) Therefore, common sense says that the private property owner of 2500 N. Ocean would not need to build a 4-story building on its beachfront lot to make ‘reasonable use of the property’. Rather, it could use this beautiful, untouched lot as an amenity area for whatever structure it decides to build across the street, at 2425 N. Ocean. There are numerous condominiums west of A1A that use the beachfront property they own across the street as just such an amenity.
What you can do about Beach Development
The next meeting for the approval/denial of this beach development will be held at City Hall in the Council Chambers on Tuesday, July 23rd at 6pm. City Hall is located at 201 W Palmetto Park Rd, Boca Raton, FL 33432. You can view the agenda item on the City webpage of meetings and agendas.
Unable to make the meeting, but want to preserve our City’s Code of Ordinances? You can email your council members here:
As shown (L to R):
Jeremy Rodgers jrodgers@ci.boca-raton.fl.us
Andrea Levine O’Rourke aorourke@ci.boca-raton.fl.us
Mayor Scott Singer ssinger@ci.boca-raton.fl.us
Monica Mayotte mmayotte@ci.boca-raton.fl.us
Andy Thomson athomson@myboca.us
* Legal Impact and the Parcel as a Whole doctrine is a defense to unconstitutional takings cases:
Physical separation of parcels – Keystone 480 US at 498
“property [may] not first be divided into what was taken and what was left for the purpose of demonstrating the taking of the former to be complete and hence compensable.” Concrete Pipe, 508 U.S. 602, 644 (1993).
Tabb Lakes, Ltd. v. U.S. 10 F.3rd 796) (Fed Cir. 1993)
Ciampitti v U.S. 22 Cl. Ct. 310 (1991) rejected wetlands takings due to parcel as whole applying the following factors:
degree of contiguity
dates of acquisition
extent which parcel has been treated as a single unit
e.g., for original purchase and financing
zoning – even if different see K&K v. DNR 575 NW 2d 531, 537 n. 6
extent to which protected lands enhanced the value of remaining developable lands
made clear it was not a comprehensive list
analysis of entire factual and regulatory environment – see also Good v. U.S.
Zealy v. City of Waukesha 548 N.W.2d 528 (Wis 1996) Wisc Supreme Court
conceptual severance – stick in bundle of property rights.
Penn Central (air rights);
Andrus v. Allard 444 US 51 (1979)
Contigous Properties:
Deltona v. U.S. 657 F2d 1184 (Ct.Cl 1981), but see Loveladies Harbor 28 F.3rd 1171; Fla. Rock 791 F.2d 893 (Fed. Cir 1986)
Non-contigous Properties:
Town of Jupiter v. Alexander
Parcel may include land divided by a road under Brotherton v. DEC 657 NYS2d 854, 857 (Sup Ct 1997 aff’d 675 NYS 2d 121 (1998)
Greater Atlanta Homebuilders Ass’n v. DeKalb County, 2003 WL 22532675 (Ga. Nov. 10, 2003).
