A Palm Beach County Circuit Court judge has ruled that county officials overcharged the developer of Avenir nearly $43 million, blowing up a key 2016 agreement that allowed the community of nearly 4,000 homes to move forward.
Avenir argued that the county engineer’s office forced it to agree to pay $105 million under state rules that require developers to pay their proportionate share for road work generated by their plans.
The decision by Circuit Court Judge Bradley Harper is fallout from a 2011 state law that restricted counties’ abilities to charge developers to assure nearby roads would be expanded to accommodate their projects.
The law eased the rules for developers who had argued that counties were sticking them with the cost for growth caused by other developments, not their own.
“An applicant shall not be held responsible for the additional cost of reducing or eliminating deficiencies (in the roadway system),” the law says.
But Palm Beach County officials said they had the right to charge for so-called background traffic. Avenir, county attorneys argued in court filings, “made a business decision” to allow them.
Avenir disagreed. The Coral Gables-based developer couldn’t get its land-use and zoning approvals from Palm Beach Gardens in May 2016 until it had signed the “prop share” agreement with the county, its attorneys, Ryan Reese and Brian Seymour, said.
“Based on the county’s definitive position, and given the time and money sunk into its project, Avenir acquiesced to the county’s methodology,” they wrote.
The approvals cleared Avenir to seek Palm Beach Gardens’ approval for what amounts to a small city on the former Vavrus Ranch northwest of the Beeline Highway and Northlake Boulevard.
Avenir has the right to build nearly 4,000 homes, 600,000 square feet of stores and medical offices, 1.9 million square feet of additional office space and a 300-room hotel.
The Avenir developers, headed by Rosa Schechter, Manny Mato and Danny Lopez, bought the property for $30 million in 2012.
While Avenir officials signed the agreement in May 2016, they didn’t sue until September 2021.
Harper agreed that under state law the county did not have the right to charge Avenir to ease existing congestion and that its demand that Avenir pay for those roads “amounted to an unlawful monetary exaction.”
“This court finds that county’s policy … was illegal and in contravention of Florida law,” Harper wrote in granting summary judgment on Feb. 28, about 10 days before the suit was to go to trial.
“More importantly, the county’s blanket policy was in no way related to any assessment of the project’s impact,” Harper wrote. “There is no evidence that there is or was any ‘nexus’ or ‘rough proportionality.’”
County Attorney Denise Coffman said the county doesn’t comment on ongoing litigation but said the case is not over and the county is “reviewing the court’s order and exploring our legal options.”
Reese and Seymour did not respond to requests for comment.
'It certainly can negotiate for them'
In its arguments, the county cited a different part of the statute that said the county “may not require” payments beyond the development’s proportionate share, instead of “shall not.”
“While the local government may not require such payments, it certainly can negotiate for them,” Assistant County Attorney Ryan Maher wrote. “Here, Avenir made a business decision, while represented by competent counsel, to proceed with the agreement.”
The judge can’t come back now and “re-write the sum agreed to by both parties in a negotiated agreement,” he wrote.
The Avenir development along Northlake Boulevard had to pay to widen portions of Northlake and build Coconut to the Beeline. (Palm Beach Gardens presentation of 2050 road network)
Pressure from GL Homes development
Avenir countered that there was no “voluntary negotiation” because the county required Avenir to use an illegal methodology and withheld approval unless Avenir did so.
Avenir felt pressure to move quickly because another large development, by GL Homes, was moving forward at the same time. Whichever developer got approval first would not have to account for the traffic created by the other.
While Avenir is well underway, with homes selling for $1 million and more, GL has not yet started to build on its site west of The Acreage.
If the county’s position bore out, both projects would have to pay to make up for weaknesses in the road network already overwhelmed by the growth of The Acreage and the development of Westlake.
The county changed engineering consultants around that time because the county consultant, Simmons & White, was handling traffic calculations for GL, Avenir’s traffic consultant, Susan O’Rourke, testified in a March 2024 deposition.
O’Rourke said she pointed out the state law restrictions on what developers must pay and submitted what she considered to be the lawful figures.
“I submitted it and they said they were not going to review it and they weren’t going to accept it,” she said. “So what was the point of it? You know, now I lose my place in line and they’re telling me point blank they’re not gonna accept it. So we retracted it.”
Where does the money go?
Avenir’s initial commitment to pay $105 million was reduced by $8 million after the state moved forward with plans to widen segments of the nearby Beeline Highway.
Avenir calculated that its rightful charge to improve roads caused by its project would be $54.1 million, leaving an overcharge of $42.9 million.
Avenir agreed to build two key road segments by itself, getting about $60 million in credit. It widened to six lanes a section of Northlake Boulevard from State Road 7 to Coconut Boulevard and built the first half of the Coconut Boulevard extension, which ultimately will connect to the Beeline Highway.
The county first extracts the money to pay for Avenir proportionate share road costs through a separate payment, known as impact fees. Avenir developers pointed out in depositions that the $105 million proportionate share payment far exceeded the project’s impact fee charges.
A second Beeline-connector, the extension of Seminole Pratt Whitney Road, is under the county’s purview. A county proposal to connect it to an Avenir neighborhood road, Avenir Drive, drew a resolution of opposition Thursday from the Palm Beach Gardens City Council.
The county has set aside $2.8 million to design the 2.6-mile Seminole extension in its five-year plan. It was not clear Monday if the county was counting on Avenir’s proportionate share payment to help pay for that road.
This story was originally published by Stet News Palm Beach, a WLRN News partner.
