Biersdorf & Associates

Published Thursday, July 26, 2007

By John Johnston
http://www.bocaratonnews.com/index.php?src=news&refno=20556&category=Local%20News
County commissioners have approved $350,000 “for the hiring of expert witnesses and consultants” to defend the county in the $38 million “inverse condemnation” lawsuit filed last year by principals of the Mizner Trail Golf Course.

“Inverse condemnation” is defined as “the taking of property by a government agency that so greatly damages the use of a parcel of real property that it is the equivalent of condemnation of the entire property.”

Three lawsuits were filed in April 2006 with the 15th District Circuit court, alleges that in denial of Mizner’s application to build luxury town homes on the Mizner Trail Golf Course, the county acted “in an unreasonable, arbitrary and capricious manner against Mizner Trail.”

The first of those lawsuits was dismissed in September 2006, and interim settlement meetings on the remaining allegations have not born any fruit.  More settlement meetings are planned, according to County Commissioner Mary McCarty and in whose District 4 the Mizner Trail Golf Course is located.

Timeline

The county zoning commission voted 4-3 in January 2006 that Mizner’s application should move forward to the County Commission, but with a recommendation for denial.

County commissioners unanimously agreed on Feb. 23, 2006, rejecting plans for 202 luxury townhouses on holes three through eight of the southern Mizner Trail Golf Course in Boca Del Mar, a 35-year old and 30,000 plus household development that straddles the Florida Turnpike west of Boca Raton. Boca Del Mar is the single largest unincorporated area land development in Palm Beach County. In fact, the Boca Del Mar Planned Unit Development in 1971 was the first such PUD ever approved in the county.

And the litigation alleges that the county’s denial amounts to “a regulatory taking of Mizner’s property and vested rights.”

Opponents of Mizner’s development proposal convinced the county that the Mizner Trail Golf Course was part of the “general development characteristics” of the overall Boca Del Mar development – and therefore should not be built upon.

Further, and in the words of the then county Senior Site Planner Eric McClellan, the golf course was a  “a firm and wholistic part of the community,” and therefore development as other than a golf course could be denied under the county code on that basis. (McClellan has since left county employ and is working in the private sector).

The Allegations

The lawsuit in turn alleges that Mizner Trail has an inherent right to build the luxury town homes because the property is properly zoned for that purpose, that more than a sufficient number of residential units approved in the original development plan remain unbuilt, and that the golf course itself was never established in perpetuity as a golf course.

The suit also says that Mizner “purchased the property in 1998, with the expectation that it would be used as a golf course temporarily and that the property ultimately would be developed residentially.”

The suit also claims that “using the property as a golf course is no longer an economically viable use or an economically reasonable use, and has not been for several years, at least since 2002.”

The Plan

For the better part of three years, the proposed development of, initially, nearly 500, whittled down to 390, then down to 236, and finally down to 202 luxury homes ($500,000 and up) at the Mizner Trail Golf Course was an on-going battle between some residents who oppose the development, and later both the County Zoning Commission and the Board of County Commissioners.

Acting on what the lawsuit alleges, the failure to get the luxury home development approved eventually resulted in Mizner saying it was losing too much money operating the golf course, and the course was closed Oct. 1 2005.

Mizner’s original plan was to sell one third of the southern golf course.  Upon that land — six holes of the now closed course — the plan called for construction of 202 luxury town houses. The remaining 12 holes would then have been reconfigured into an executive 18-hole course.  The plan also included a new deed covenant that for all practical purposes Mizner said prevented the remaining 67 percent of the land from ever being developed.

In a show cause order following the original suit, Palm Beach County 15th Circuit Court Judge Edward Fine said he believed the county’s denial “shows a preliminary basis” for being overturned.

Mizner’s litigation seeking monetary damages was subsequently filed.

Mizner Trail attorneys have declined comment, and at press time, the Palm Beach County attorney handling the case was in fact taking depositions regarding it.