Court Injunction Sought to Stop Palm Coast’s Tree Removal Around Palm Harbor Center
FlaglerLive | August 9, 2013
Two major changes are about to remake the heart of old Palm Coast, which used to be defined by the area around the Palm Harbor shopping center—if an injunction filed Thursday in Flagler County Circuit Court doesn’t derail the plans.
The city is about to widen 1.23 miles of Palm Coast Parkway to six lanes, from Cypress Point Parkway to Florida Park Drive. And the shopping center will be put through a make-over that will significantly reduce green buffers, remove almost 400 trees, demolish some buildings and erect new ones, increasing the commercial density of the 180,000-square-foot commercial center. The current owner of the shopping center, the Oak Brook, Ill.-based Inland Group (which also owns Imagine School at Town Center) may sell the property to a Jacksonville-based retailer that has plans for a Bath Bed & Beyond and a Dick’s Sporting Goods, both of which would change the complexion of the shopping center from its quaint if rundown character to a run-of-the-mill boxy, angular strip mall.
The city has received only three conceptual plans for the development so far, which you can see here. None is an official site plan, the city stresses.
But both projects are advanced enough that the trees on the property and its right-of-ways have been surveyed, some are already being moved, and some, or many, may be cut down, moved or replaced down the line as the shopping center and its parking lot are rebuilt.
That’s what prompted Dennis McDonald, a Palm Coast resident, former county commission candidate and perennial critic of city and county governments, to file an injunction against the city Thursday to stop the projected tree removal.
“One of the major contributing reasons my family and I chose to relocate with an eye towards eventual retirement in the city of Palm Coast in 1998 was the aesthetic environment created by the provisions in the [planned unit development, or PUD] creating privacy, green spaces and a canopy of trees visible from the road while driving through Parkway East,” McDonald wrote in an affidavit accompanying the injunction. “The removal of the trees and reduction of setbacks planned by the City of Palm Coast, or any other third party, would largely destroy the originally intended aesthetic environment, leaving strip malls, parking lots and other obtrusive and commercial features visible while coming into and traversing through the city, enjoying and patronizing its stores, offices and restaurants.”The city acknowledges in its widening plans that trees will be removed, but also that more trees will be replanted than will be removed, albeit not all in the same area. For example, many palm trees being removed are to be replanted at Waterfront Park and at the Indian Trails Sports Complex, says Bill Butler, the city’s landscape architect, but many will also be replanted along the widened road, just as the Palm Harbor retailer—whoever that proves to be—will be required to replant trees.
McDonald’s injunction raises three central points: first, that the tree removal is changing the character of that older part of Palm Coast, a character that attracted many people to the city. Second, that the city is enabling the replacement of mature, stately and canopy-producing trees with much younger trees, defeating the purpose of the long-standing greening of the area. Third, McDonald argues that the city is violating covenants and restrictions it inherited from the ITT days.
McDonald says those covenants are still in effect. The city disagrees.
“Old ITT covenants are really not in effect anymore, as far as I know. We go by the land development code,” Butler said. The code supplanted the covenants when the city incorporated in 1999. Bill Reischmann, the city’s attorney, did not respond to an email and phone call Friday morning.McDonald, Butler said, “is so off base” in his projections of what will take place in the Palm Harbor shopping area, because “we haven’t approved anything. We haven’t even seen anything,” other than conceptual plans. Once firmer plans are submitted, the city will review them formally, ensuring that as many trees as possible are protected (“we did tell them they should consider saving as many trees as possible,” Butler said). The city council does not have to formally approve development plans that entail tree removals. Those plans are reviewed and approved internally as part of the city’s development orders.
The white stripes that people can see now, around virtually every tree in and around the shopping center, are survey strips. They don’t mean that the trees will be cut down or removed, necessarily.
But several old laurel oaks in front of the Wells Fargo bank will be cut down, McDonald said. Butler acknowledged that they will, but noted that those trees are not a long-lived species, and that in an urban environment they develop stresses that aren’t always seen by the naked eye. “There’s just no way we can leave those,” Butler said, though he’s not happy about seeing them go.
The injunction’s legal argument is grounded on internal development orders the administration approved regarding two separate parcels, in February and March, that approved variances to setbacks allowing the cutting down of trees. The city’s actions, the court action claims, “was taken without the city council’s passage of variances following recommendation(s) from the Planning and Land Regulation Board or Architectural Review Committee, pursuant to the original Planned Unit Development filing, and in contradiction of the original CNRs.”
“CNRs” are the covenant and restrictions dating back to the ITT days. One such restriction forbids the removal of trees larger than 4 inches absent approval from the committee. But that committee no longer exists. The city disbanded it, and now has its own processes in place, though many other provisions of the covenant are still in effect—such as restrictions on exterior paint colors on houses, a restriction formalized by city ordinance. But McDonald claims the city is violating both its covenants and a 2003 Planned Unit Development enacted in 2003, four years after the city incorporated.
He’s seeking injunctive relief because he says residents of that area of town, who moved there largely because of its green appearance, will be irreparably damaged by the impending tree removal, and will see their property values fall. “It is in the public interest that this court grants preliminary and permanent injunctive relief the preventing [sic.] defendant from taking the arbitrary and unlawful actions cited above,” the action states.
“What we’re saying is that there’s no relief this court can provide, no monetary relief that can make us whole,” says Joshua Knight, the Palm Coast attorney McDonald hired. “The only thing to provide is to stop plans they have to tear down the trees or modify the roadways.” He added: “I’m hopeful that we can at least bring attention to what’s going on. At the end of the day the citizens are not being listened to. It’s the will and the need of a few who are being listened to, in my opinion.”