Mizner Trail lawsuit begins Monday

By John Johnston
Managing Editor

“I got my subpoena,” Commissioner Mary McCarty said just before her colleagues agree to approve a $70,000 increase in the amount set aside to fund the cost of “expert litigation services” in the Mizner Trail Golf Club suit against the county  

The trial, and in which the plaintiffs are seeking $50 million, is slated to begin Monday; commissioners earlier this year approved $350,000 for expert services.

The $420,00 will fund services for certified appraisers, architects, land planners, and other experts necessary for the defense of the pending inverse condemnation lawsuit by the now closed golf club against the county, said commissioners.

Inverse condemnation is a term of art which argues that the county’s action in denying the golf club the right to build about 200 condominiums on the Mizner Trail Golf Course in the west Boca Raton Boca Del Mar development effectively eliminated the only profitable use of that land, and thus causing the golf course owners financial harm.

“The funding for expert witnesses, consulting, and litigation support services are reasonable and necessary for the county to properly and competently defend itself in the Mizner litigation,” said commissioners.

McCarty, and in whose District 4 the Boca Del Mar development is located, was a vocal critic of the proposal in the several years it was discussed prior to the commission’s February 2006 denial of development plan, survived a personal lawsuit against her for alleged defamation in the case.

Last month, Judge Robin Rosenberg dismissed a defamation lawsuit filed by Compson Development against McCarty. In the ruling Rosenberg said that McCarty was immune from being sued for comments made in her elected capacity as a county commissioner.

Three lawsuits were filed in April 2006 with the 15th District Circuit court, alleging 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 did not bear fruit.

The case began when 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 (PUD) in 1971 was the first such PUD ever approved in the county.

And the remaining 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.

The Mizner lawsuit in turn countered that Mizner Trail had an inherent right to build the luxury town homes because the property was properly zoned for that purpose, that more than a sufficient number of residential units approved in the original development plan remained 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 claimed 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.”

For the better part of three years, the proposed development at the Mizner Trail Golf Course was an on-going battle between some residents who opposed 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.

The trial is expected to last up to two weeks.