Article Courtesy of The Boca Magazine

By Randy Schultz

Published December 1, 2014

The fate of the old Mizner Trail Golf Course has entered another nasty and—for non-lawyers—confusing legal spitting phase.
  
To recap: In June, the Palm Beach County Commission approved construction of 253 homes on what was the roughly 128-acre south course in Boca Del Mar and now is an overgrown mess. The 10,000-unit umbrella homeowners group—called the Boca Del Mar Improvement Association —appealed the approval by petitioning the circuit court to review it. About 80 individual homeowner associations make up the improvement association.   
   

When I spoke with Robert and James Comparato at their company’s Boca Raton headquarters, they showed me a Nov. 10 letter from one of their attorneys, Martin Perry, to Peter Sachs. His firm—Sachs Sax Caplan—represents the improvement association.

The letter, Perry wrote, “will confirm and clarify the verbal settlement proposal I made” on Nov. 3. “This offer was intended as a firm and final settlement seeking the dismissal” of the appeal and “any and all other pending issues or claims arising” from the appeal. Perry acknowledges that while he “did not mention a number,” he understood that the legal fees amounted to $250,000.

To non-lawyers, that sounds like a settlement offer. Not so, according to Robert Rivas, an attorney with Sachs Sax Caplan. In an email, he said Perry’s letter “does not ‘constitute a settlement offer.’ It constitutes a letter in which he tries to purport that he had made an offer orally the previous week. The letter itself is not an offer.”

Perry wrote the letter, Rivas said, “in order to throw a smokescreen around the lie they had been caught in. It is a self-serving rewriting of history. . .written for the benefit of the media.”

Rivas contends that “the word ‘offer’ means a communication containing the essential terms of a proposed deal. An ‘offer’ is presented for acceptance or rejection. It must be sufficiently clear that if the recipient says ‘yes,’ then the deal is done.

“Preliminary discussions about the respective stances and positions of the two sides are not ‘offers.’ Statements about what might happen if such-and-such were offered, or what if we were in the such-and-such ballpark, those are not ‘offers.’ They are just negotiating palaver.”

Peter Sachs called the letter a “publicity stunt,” adding that as of Tuesday he still hadn’t received a copy, even though copies went to homeowner associations in Boca Del Mar. A Nov. 12 letter from Sachs to Perry uses words such as “meddle” and “intimidate.”

On Nov. 4, one day after Perry claims to have made the “verbal settlement proposal,” another letter from another Compson attorney went to Sachs.

Bernard Lebedeker put Sachs on notice that Compson intended to seek sanctions against the association and other named plaintiffs as well as the Sachs firm. The association had 21 days to “remedy the situation,” which to Compson ideally meant dropping the appeal. The 21 days expired Tuesday. On Wednesday, Lebedeker filed the motion for sanctions. Compson issued similar notice to the lone plaintiff in a separate lawsuit against the project.

Such action is not new. Other developers in Florida have issued similar legal warnings in hopes of scaring off plaintiffs. Indeed, the single plaintiff has dropped out, meaning that challenge to Mizner Trail is over. Two plaintiffs have dropped out of the association lawsuit.

Sachs, though, said, “We are not going to cave in.” As to the Comparatos’ argument that the lawsuit endangers the association and its members, Sachs said community sentiment supports the lawsuit. According to Sachs, whose firm did not represent Boca Del Mar at the time, the then-improvement association board was negotiating in 2006 over a plan to develop the golf course. Opponents of the project became “enraged” and took over the board at the next election.

Lebedeker acknowledged that even if the three-judge panel decides not to hear the appeal, the developers still might not prevail on sanctions. They must prove that the appeal was frivolous—meaning, as Lebedeker put it in the letter, “not supported by the material facts necessary to establish the claim” and “not supported by application of existing law to the material facts.”

Essentially, the Comparatos say the appeal is costing them money by illegally delaying construction. To call them confident of prevailing would be an understatement. In an interview last week, James Comparato said, “I’m going to build these units. Just when can I start.”

The appeal, Robert Comparato said, seeks an illegal “taking” of private property rights. As for the sanction threat against the association and the law firm, James Comparato said, “We are not going to get anywhere by playing nice in the sandbox.”

The Comparatos contend that the improvement association has become “obstructionist,” led by those who live in the 550 homes that adjoin the course and have pursued such unrealistic options as conversion of the land to a park. Robert Comparato said, “We don’t believe that all the information is being communicated to all the residents of Boca Del Mar.”

The Comparatos point out that over several months in 2012 they negotiated with two Boca Del Mar representatives to craft a plan the neighbors could support. County Commissioner Steven Abrams, who represents Boca Del Mar, was at those talks and confirms that there had been agreement that August on what became known as “the compromise plan.”

One Boca Del Mar representative signed the site plan, to indicate her agreement. The other, Brian Coleman, supported the plan verbally, but changed his mind “within 24 hours,” Abrams recalls. Coleman is now vice president of the improvement association board.

The rancor has become so strident because there is no middle ground for compromise. The latest plan, which the county commission approved, is undoubtedly better than any previous version. It has lakes, more buffering and a better housing mix. Boca Del Mar, however, argues that the land has no development rights. To the residents, the best site plan still would be an unacceptable site plan.

To James Comparato, “The fight is simple. We own the property.” Asked how much they paid for the land, he calls the number “not pertinent.” Obviously, it is. Property records show that Mizner Trail Golf Club, Ltd., purchased the property in 1998 for $8 million.

In 2006, the county commission rejected a plan for development on 43 acres of Mizner Trail. That time, the Comparatos sued the county—and lost. This time, the Comparatos and the county are allies.

That legal chapter took more than two years to resolve. This one might take longer. The material under review makes a Tolstoy novel look like a short story. The court still has not decided even whether to hear the appeal of the county commission’s March 2013 approval of a development on a former golf course adjoining Century Village in West Palm Beach.

As Robert Comparato acknowledged, a lot of other golf courses are financially shaky. The outcome of this case could set a significant precedent. There’s a lot at stake, and no resolution in sight.