Angelo Bianco. Photo: Melanie Bell

Boca Raton could face as much as $137 million in damages on Crocker Partners LLC's claim that it lost property rights after the city scaled back redevelopment plans in an area where the developer purchased real estate.

The Boca Raton-based real estate investment and management firm plans to file a second lawsuit against the city over this issue. This time it will sue under the Bert J. Harris Jr. Private Property Rights Protection Act, which authorizes damages for lost property values due to government takings.

The “Florida Legislature created the Bert Harris Act to allow landowners who have been mistreated by their municipalities, like we have, to seek damages from the municipalities,” said Angelo Bianco, Crocker managing partner.

The issue revolves around about 200 acres in the Midtown Boca district from Glades Road south to Town Center Road and from Interstate 95 west to St. Andrews Blvd. Crocker bought three properties totaling 64 acres in the area about three years ago keyed to redevelopment plans before the city switched course.

In 2010, the city approved planned mobility development designations for several areas, including Midtown and added the designations to its comprehensive plan, which guides growth, development, transportation and infrastructure, according to Crocker's first complaint filed May 22.

The crux of Crocker's argument is that the city was supposed to pass related zoning and land development regulations to reflect the planned mobility designations. But on Jan. 23, the City Council unanimously voted to postpone the rule change and voted 4-1 to approve a smaller plan, according to meeting minutes.

“We bought our property three years ago and figured that it would be just a matter of a few months, and it's turned out to be three years of inaction following by in January a decision by the city to delay the regulations adoptions indefinitely,” Bianco said.

Crocker owns Boca Center, a mixed-use development at 5150 Town Center Circle that includes office buildings and a 256-room Marriott; One Town Center, an 11-story office building at 1 Town Center Road and surrounding acreage; and The Plaza, a 10-story office building at 5355 Town Center Road.

Crocker hasn't disclosed any specific plans but intends to add residences to its office and retail properties to create a walkable village ”so that people who work in this area can live and play and walk to work and dining,” Bianco said. “This is really the way internationally that progressive cities are developing so that their residents can have a much higher quality of life.”

Crocker on April 10 formally notified the city of its Bert Harris claim to meet a 150-day pre-suit requirement.

The city said it hasn't received a Bert Harris lawsuit and that it responded to Crocker's April 10 notice.

In the response, the city argued Crocker's Bert Harris claim is deficient, speculative, not reasonable and not ripe. The city submitted its response Sept. 7 saying the deadline for its reply was Sept. 8.

The city maintained the city's failure to adopt the planned mobility development regulations was not actionable under Bert Harris. City comments refer to Plaza, which is a reference to CP Boca Plaza LLC, which is affiliated with Crocker and is the listed owner of The Plaza office building.

“The act creates a cause of action where a law, regulation or ordinance, as applied, inordinately burdens, restricts or limits a private property right,” wrote Daniel Abbott, the city's outside attorney and a Weiss Serota Helfman Cole & Bierman member. “Plaza does not claim that the city has taken an action that takes away or limits its private property rights (or development rights), but rather that the City Council elected not to adopt as requested by Plaza an ordinance to create new development rights for the subject property.”

Crocker's first lawsuit sought declaratory relief. The city's motion to dismiss argued it could — but is not required to — adopt land development regulations that reflect the planned mobility designation. The city also said its land development regulations are consistent with its comprehensive plan, requiring no further action.

Palm Beach Circuit Judge Howard Coates Jr. on Aug. 27 granted the city's motion to dismiss the first count of Crocker's lawsuit but denied the motion to dismiss the second count challenging the constitutionality of draft ordinances that would require a master plan for the entire Midtown district.

Bianco also complained city records don't reflect who is making decisions and how they are being made in this case.

“As far as we can see there's no public record discussing any of these issues,” he said. “There's no conversations with anyone. We were like, 'Who is making these decisions?'”

City communications and marketing manager Chrissy Gibson said because the city so far only has received the Bert Harris notice, an executive session cannot be held as the city hasn't been sued on the matter.

As for the other pending lawsuit, the Gibson pointed out that the City Council and attorneys discussed the matter July 24 in a private session. They are allowed to discuss pending lawsuits in private meetings out of the public's eye, but minutes of these meetings would become public  once the lawsuit ends.

The $137 million claim is based on lost value from the proposed residential segment, Bianco said.

Weiss, Handler & Cornwell founding partner Henry Handler in Boca Raton filed the Bert Harris Act notices, and Handler, senior trial and appellate attorney William Berger and senior associate David Friedman filed the initial lawsuit.