Sales of pocket constitutions have sky rocketed since a grief stricken father of a fallen serviceman waved his copy from the podium at the Democratic National Convention.  It may be time for more of us to invest in a copy so that we can fully understand the underlying nature of the complaint in the recent lawsuit filed against the city of Boca Raton.  This is a lawsuit about possible corruption in City Hall as well as the potential violation of citizens’ first amendment rights.

Long time Boca Raton resident and land use attorney Arthur Koski, and Yeshiva University Law Professor Marci Hamilton are representing the barrier island residents who raised these, among other concerns.  This is the third suit brought against the City for approving a religious complex on East Palmetto Park Road, a stretch of County Road that runs 1,393 feet from A1A to the Intracoastal Bridge.  The original preference for the Chabad complex was to build a structure with limited parking in the Golden Triangle neighborhood, adjacent to the CRA District and directly opposite the Mizner Park garages.  Facing stiff resistance from neighborhood residents, the City ultimately passed new legislation which effectively canceled the Chabad’s plans for that location.

it is alleged, that in order to make amends, the city rezoned the low business beach corridor to allow houses of worship. In so doing a parcel of land, which the Rabbi was reportedly anxious to acquire, was made, arguably, suitable for this project.  A zoning change conveniently combined ‘places of public assembly’ with ‘houses of worship’ and the City labeled these actions as simple ‘housekeeping’. However, the anomalistic allowance to request additional height in the B1 was conveniently overlooked during this 2009 ‘housekeeping’ session.  This is the heart of the Federal lawsuit.

Fast forward to 2016, the federal suit had been dismissed by Judge Kenneth A. Marra, not on the merits of the case, but on the ‘lack of standing’ by the plaintiffs as presented. It was the Court’s opinion that no tangible injury was present.  However, the ‘standing doctrine’ is a confusing one and can be relaxed or tightened depending on the Court.  An example can be found in the recent Supreme Court ruling (Spokeo, Inc. v. Robins 135 S. Ct. 1892-2015) which held that a ‘concrete’ injury is not necessarily synonymous with a ‘tangible’ injury and that the ‘risk of real harm’ counts as such an injury even when such harm has ‘not materialized’.

The play ‘Hamilton’ is currently the hottest ticket on Broadway.

It was Alexander Hamilton who stressed that the courts were to guard the Constitution and the rights of individuals, and that without a judicial check the reservations of particular rights or privileges would amount to nothing.

On Friday August 12th, the two plaintiffs filed an amended complaint.  Will it now pass the standing test?

This past week, Defendant, the City of Boca Raton, for the second time, has filed a motion to dismiss the amended complaint for failure to state a claim.  Response to this filing is due by September 12th.

As the saying goes … they jury is still out.

Stay Tuned!