A Primer on Ordinance 4035

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Ordinance 4035, signed into law in 1992 comprises the basic set of rules for development in downtown Boca. It is currently at the center of a fierce debate whether city officials, either by accident or design, have allowed the construction of buildings that are not in compliance with the law.

During the course of the coming debate, you will hear much about 4035—about its confusing “complexity,” about how it is intended to serve merely as “guidance” to developers, about how it is outdated and therefore irrelevant. Here are the facts:

Ordinance 4035 is “An Ordinance of the City Council of the City of Boca Raton, Florida, making findings of fact and conclusions of law.”

It is the law. Nowhere in its 65 pages does the word “guidance” appear: “In the event there is any conflict between the terms of the amended Development Order (4035) and any other rule, regulation or ordinance of the City, the terms of this amended Development Order (4035) shall control (emphasis added).”

Ordinance 4035 is not complex. It is incredibly detailed. It covers everything from density, to height restrictions, open space requirements, setbacks, landscaping, irrigation, parking, use of building materials and architectural design. In most instances the law contains specific definitions or demands.

For example, quoting from the Ordinance:

“Open space means an area which is open from the land to the sky” and roughly 25% of the required open space for buildings taller than 75 feet “shall be open and uncovered from the ground to the sky.”

or

“No reflective glass shall be installed on the perimeter of a structure or building…No more than 40% of the perimeter of a building’s materials shall be composed of glass.”

or

“Light and pastel colors shall be used for external treatment of buildings.”

or

“Fifty percent or more of the required trees for a project shall consist of one or more of the following recommended species:” There follows a list of 36 species of trees, as well as a list of five species that may not be used.

The incredible detail specified in Ordinance 4035 is a clear indication that its authors wanted to leave as little as possible to the discretion of developers. Why? One senses a worry that, if left to their own devices, their creations might favor economics over aesthetics. Ordinance 4035 is not a testament to trust.

The one section of Ordinance 4035, which does grant some leeway to developers, is the one covering architectural design. It is in this section alone that one finds the word “may” instead of “shall.”

For example, again quoting from the Ordinance:

“It is the intent of this amended Development Order (4035) to ensure that the development of Downtown Boca Raton is carried out in accordance with a harmonious architectural environment. …

 All development is encouraged to use the fundamental concept which are found in the architecture of Addison Mizner as a principal design influence….Prime examples of these concepts are found in Mizner’s Worth Avenue development in the Town of Palm Beach and in the Mediterranean style of the Boca Raton Hotel… Development designers should employ creative re-interpretations of the Mizner tradition as opposed to literal copy of Mizner’s work. …

 Unlike other sections of 4035, this is not command and control language. But intent of the architectural provisions of the law is clear:

new development in Downtown Boca should be consistent with what is already there– harmonious.

Finally, it is worth pointing out that fully eight pages of Ordinance 4035 are devoted to traffic. Clearly, as far back as 1992 the City Council was worried that Downtown Boca would not have adequate roads to handle up to 4.9 million square feet of office equivalent development. So they included in the statute twenty-seven specific road improvements that had to be completed before each stage of development could proceed. Worth repeating: 4035 demanded road improvements as a precondition of development.

For example, again quoting from the statute:

“At the intersection of Palmetto Park Road and I-95 East provide double eastbound left-turn lanes, 3 eastbound through lanes, double northbound left-turn lanes, a free-flow northbound right turn lane, 4 westbound lanes, and a free-flow westbound right-turn.”

 “Widening of Federal Highway from NE 6th Street to Glades Road to six lanes.”

 “Widening Dixie Highway from SW 18th Street to Hillsboro Boulevard to five lanes.”

 “Widening of Camino Real between Military Trail and Dixie Highway to four lanes.”

 Ordinance 4035 also called for a traffic monitoring program “based on actual field data” which “shall address the actual impact of development in the Downtown as compared with the impacts projected in the Application for Development Approval.” This was supposed to have been done in 2007—fifteen years after the enactment of Ordinance 4035—in order to ensure that Boca’s traffic infrastructure was sufficient to handle the “impacts” projected by the developers.

It is now 2016, and the traffic is here and growing, but the oversight and foresight seem to have vanished. No one at City Hall is calling for a comprehensive traffic study that will tell us whether Downtown Boca’s six major arteries are capable of handling the traffic that eight million square feet of office development will bring. (Ordinance 4035 anticipated no more than 5 million square feet of development.) Boca’s current Five-year Road Plan calls for the following improvements:

  • a new I-95 interchange at Spanish River
  • “intersection improvements” on Glades Road
  • Bridge rehabilitation and replacement on Camino and Palmetto
  • Auxiliary lanes on Palmetto from I-95 to Military Trail
  • Widening Dixie to three lanes from Yamato to Linton

That’s it. Will these do anything to meet the traffic challenges presented by the urban center developers love to call the “New Boca?”

Why is nothing more in the works? The answer is simple: there is no room to expand Downtown Boca’s roads. There is no more space.

 The solution to Boca’s traffic problem—anticipated by the authors of 4035—is also simple: if you cannot build more roads, do not build more buildings. Or, as 4035 clearly required at the time, build the roads BEFORE you build the buildings.

 We need a comprehensive traffic study to give us an idea of the problem before we make the problem worse.

Ordinance 4035 was a visionary document. Its authors correctly foresaw the attractions of Boca Raton and the surge of development that they would bring. They favored development, but tried to put in place strict controls that would limit its impact and preserve the architectural harmony that makes Boca unique. Their vision and their resolve have somehow been lost. We are all witness to the sorry result.

We can and must do better in the future. Start now by paying close attention to Ordinance 4035.

John C. Gore, President, BocaBeautiful.org

 

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John, President of BocaBeautiful.org is a 13-year Boca resident and lives in Downtown Boca. He is also Chairman and CEO of Political Solutions International LLC, a consulting firm which advises a wide range of clients on government relations organization, competence, issue management and strategy. Prior to his chairing Political Solutions International, Mr. Gore served from 1996-2002 as Group Vice President, Government and Public Affairs, for the British Petroleum Company in London. In that capacity Mr. Gore was responsible for BP’s government and public affairs activities in over 70 countries. He is a 1970 graduate of Georgetown University’s School of Foreign Service and attended Georgetown University Law School. He is married to the former Antonia Stepovich of Fairbanks, Alaska. His outside interests include golf, creative writing, and the arts.

7 COMMENTS

  1. MESSAGE FROM FORMER MAYOR AND STATE REPRESENTATIVE
    Carol G. Hanson

    Hard to imagine when I was first elected to the Boca Raton city council way back in 1979 the most pressing issue at the time was Boca Raton Downtown. About the most exciting thing about it was The Greyhound Bus station on US 1 just north of Palmetto Park Road.

    For sure something had to be done and we adopted the state laws creating a community redevelopment agency/board (CRA) and appointing members to the board. I supported both of the issues.

    Hard to believe that 36 years later we are still trying to find the courage to say no to our downtown problems which over development has caused. It was NOT THE CITY COUNCIL back in 1979 and for many years thereafter that caused the current overdeverlopment.

    We knew how to say NO to the bigger is better developers and to remain committed to Quality not Quantity growth for our fair city.

    It is also hard to believe how very silent and strange it is to know the Florida East Coast Railroad that abuts US1/Dixie Highway will be putting about 73 daily trains running through our city on double tracks instead of just the usual 16 freight trains currently running on a single track.
    As for the promise of no train horns being silenced maybe, maybe not.
    We did silence the horns back in 1984 from 10pm to 6am and then in 1990 the Federal Railroad Administration said NO MORE bans due to the accident rate going up.

    Now common sense will tell us more trains mean more people and more accidents because gate jockeys will still find ways to get around any obstacles and not all crossings will be improved.due to the sheer number of crossings between Miami and Orlando…But still our city government spends every waking hour talking about downtown.

    We moved to Boca in 1960 and here we found Paradise with our 6000 +neighbors. Latest census put us at 86 thousand plus neighbors and now figures talk about 90 thousand plus, so to us our Paradise Found is fast becoming Paradise Lost as our quiet single family district is fast becoming streets with “off campus” fraternity rows because the city is too busy worrying about downtown to assist us in enforcing the current rules regarding single family zones soon to become “off campus zones” as we and other parts of the city are just a few miles from FAU.

    So to Boca Watch, Save Our Beaches from Over Development, and to Boca Beautiful thank you so very, very much for trying to save us from ourselves.
    Carol G. Hanson

  2. Thank you for this posting. A major frustration for me is the fact that virtually every single development request that passes through City Hall comes with the additional requests of variances and technical deviations. On top of those requests are examples of new ordinances crafted to accommodate or favor specific developments that go against the original 4035 intent. All of these exceptions to the rule have created a downtown that has strayed from the original vision. The cumulative effect of our new “concrete jungle” and associated traffic issues will make Boca Raton less special than what could have been.

  3. How sad it is that the strong voice of Carol Hanson isn’t being heard as it was back in her active years on our city council and as Mayor of beautiful city. Listen to her now and stop all the unregulated growth before it’s too late.

    Donald Moore
    Resident since 1973

  4. We are so upset by the building in downtown Boca that we seldom even go down there….it looks like something one would find in New York City. This is not the City we moved to. The golf courses are disappearing and in their stead are housing developments. Where are all these people coming from? Do we really need so many apartment buildings. Fight on.

  5. Can prior violations of Ordinance 4035 be prosecuted and be enforced retroactively? Also, who is responsible for this blatant ignoring of the Ordinace which was designed to protect Boca Raton, not the developers.

  6. Thank you John, for the great synopsis regrading 4035. We used to compare favorably to Palm Beach, Jupiter, Stuart, Naples, Coconut Grove, etal. Now the best we can say is we compare favorably to Fort Lauderdale, Delray, and Pompano. We need to start holding on to what little may be left of the legacy created by our visionary leaders in the era of 4035.

  7. Thank heavens the citizens of Boca Raton have you helping to look out for our interests.

    As a real estate lawyer and resident of Boca Raton for almost 40 years I have been appalled at the actions of the elected and appointed officials of this city regarding commercial and downtown development. Most should be immediately relieved of their duties and replaced with officials who perform in accordance with the wishes of the people.

    Thank you for your continuing efforts.

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