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Palm Coast Slams Tree Lawsuit, Citing “False, Misleading and Unsupported Allegations”

| October 21, 2013

Whose canopy? The properties at and around the Palm Harbor Shopping Center are at the center of a legal dispute between Dennis McDonald, a resident, and Palm Coast government.

Whose canopy? The properties at and around the Palm Harbor Shopping Center are at the center of a legal dispute between Dennis McDonald, a resident, and Palm Coast government.

In early August Dennis McDonald, the reigning champion of virulent criticism of city and county policy, filed suit in Flagler County Circuit Court, seeking an injunction to stop the city from cutting down trees in and around the Palm Harbor Shopping Center. McDonald made broad and alarming claims that trees were about to be leveled and the canopy in that area diminished or erased, and that Palm Coast was violating its own covenants along the way.

The claims lacked evidence and raised serious questions about their veracity, first prompting official denials from the city that tree-removal was afoot, and, on more than one occasion, personal but public derision against McDonald from City Manager Jim Landon.

The city then filed its response to the lawsuit. It not only denies McDonald’s claims in its motion to dismiss the case—which goes before Circuit Court Dennis Craig on Jan. 27. It also seeks to sanction him for making false claims, asking the court to make McDonald pay the city’s costs of fighting the injunction, including interest on any costs incurred before the judgment. It’s a way to discourage similar suits in the future, if not to intimidate McDonald.

Josh Knight, McDonald’s attorney, described the city’s response as “definitely overly hostile” and a “scare tactic” to get McDonald to withdraw his suit for a temporary restraining order–which he will not do, Knight said. Rather, he said the city essentially admitted that it was carrying out arbitrary administrative variances that skirt the normal process, since such orders have been granted, Knight said. “Their response gave us a little bit of what we were looking for,” he said. Knight will be amending the original action in response, but will continue moving forward against the city.

In its motion to dismiss, the city—represented by William Reischmann, its usual attorney—argues that McDonald has no standing to sue because he makes no allegations that he will be personally affected by the changes, which would take place two to three miles from the property he owns. McDonald claims the loss of canopy will damage the area’s aesthetic beauty and lower property values. Merely citing proximity to an area or aesthetic concern  does not give him standing to sue, the city argues, calling McDonald’s standing “pure speculation and fantasy.” (The citation’s use in the context of the Palm Coast lawsuit is itself an overreach by Reichmann, however: the words were borrowed from a 1992 opinion by Supreme Court Justice Antonin Scalia rejecting environmentalists’ claim that they had standing to challenge the limits of the Endangered Species Act. But Scalia’s words were leveled at claims that the act affected federal activities abroad . McDonald is making claims about potential environmental changes affecting his own neighborhood.)

The city’s response also claims something indisputable: McDonald did not file supporting documentation that trees are about to be removed. McDonald based his assumption on an observation: ribbons had been placed around most of the trees in the area of Palm Harbor. But they were merely being surveyed, not slated for removal.

Still, two points are also indisputable: First, Palm Coast is widening Palm Coast Parkway, including a stretch that will shear off green property—and several stately trees—along the Palm Harbor shopping area. Second, the owner of Palm Harbor Shopping Center, Oak Brook, Ill.-based Inland Group, is selling the property to a developer—Michael Collard, according to the Palm Coast Observer—who plans to demolish sections of the site and build bigger, boxier store that may by next year include a Bed Bath & Beyond and a World Market. City officials have acknowledged that such rebuilding of the site would inevitably entail the loss of some trees, but that the trees would be either moved to different locations or be replaced with more numerous trees. McDonald’s contention is that tree-replacement doesn’t avoid the loss of canopy.

Of course, Palm Coast does not control most of what a developer or a property owner may do with a site, which leads to the city’s third contention in its effort to have the case dismissed: the city cannot be enjoined from removing trees on a property that doesn’t belong to it. The city has a rigorous tree ordinance that forbids the removal of most trees absent a strict process, which does include replacement. But in McDonald’s case, the lawsuit is not directed at any of three owners of properties affected by McDonald’s “convoluted” allegations, the city’s response states.

“If [McDonald] believes Dunkin Donuts, or Wells Fargo, or the shopping center is or will be removing trees in violation of some law or contract,” the city’s response states, then McDonald “should sue these private property owners, not the city of Palm Coast.”

McDonald today said the city in its response “did its best to spin this to make it appear that it was about the shopping center. My complaint was focused on the taking and subsequent violation of the covenants and restrictions setbacks and percentage of coverage on Palm Coast Parkway. Had it been concerning the shopping center then they would have to have been named in the suit.”

Even if the city was about to remove trees, the city claims, McDonald doesn’t have a case for an injunction. McDonald will not suffer “irreparable harm” from such removals, especially since what trees are removed will be replaced. But it would take a series of “if”s for McDonald to have a reason to sue “someone” for damages, and that someone would not likely be the city.


McDonald, the city claims, “simply has not plead [sic.] any facts showing that cutting down trees, wherever they may be, is wrong pursuant to any law, agreement or other relevant document,” while the public interest would not be served by an injunction because the city followed all laws and procedures in so far as its own projects along Palm Harbor are concerned.

The motion to sanction McDonald restates many of the arguments in the motion to dismiss, citing “numerous false, misleading and unsupported allegations” along the way, such as inaccurate timelines, the vague targets of McDonald’s claims, and his misinterpretation of regulatory steps the city did take while working toward laying the groundwork for Palm Coast Parkway’s expansion.

“It hasn’t always been about the mall and the trees. They want to make it about that, but that’s not really what we’re doing,” Knight said. “They want it to go away, they don’t want undue attention brought to what they’re doing.”

McDonald versus Palm Coast, the City’s Response

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5 Responses for “Palm Coast Slams Tree Lawsuit, Citing “False, Misleading and Unsupported Allegations””

  1. Gia says:

    I do not believe that other big name store are interested to expand in P C. We’ve heard that propaganda before. BJ was suppose to settle in PC & went near Daytona etc…

  2. Mario di Girolamo says:

    I do not like lawsuits for trees … think they are a waste of time & tax payer money. The City does a pretty good job of replacing trees, so I am not overly concerned. Some of the older oaks are near their end-of-life and could pose a threat during the next strong tropical storm, or hurricane.

    Yes I enjoy shade and wish the City would ensure these mall like developments included canopies for protecting against the harsh sun. One that comes to mind is the Target Plaza. There is no where to hide from the sun’s damaging rays. You need an umbrella to walk from Target to Michael’s, or TJ Max as an example. Hence, most people will get back in there cars and drive several blocks, so to avoid intense sweating. This I feel, was an oversight in the project planning, which should not be repeated.

    There is also oddly, no where to sit and relax in these huge stretches of mall like developments. It’s as if the project was planned so as to discourage shoppers from getting too comfortable outside their stores. I’m getting older and would like benches with shade trees along routes that would allow me to walk from Target to Ross, as an example, and rest comfortably along the way.

    OK, back to the trees in and around Palm Harbor Shopping Center and the expansion of Palm Coast Pkwy.: If at all possible, leave the old trees alone for now and end this lawsuit. Thank you.

  3. barbie says:

    These people who file false and frivolous claims based on nothing more than hatred of government or hatred of progress or hatred of growth NEED to be sanctioned. Good for the city for landing on this situation, hard. It’s bad enough there’s so much waste from top to bottom. The last thing we need are misguided, misinformed, or outright liars wasting even more.

  4. palm coaster 12 says:

    I remember that the driving force to become a city was to be able to maintain the setbacks and keep Palm Coast green. What happened? Now everything is cleared and tiny trees are put in that will take years to grow, that is, if the owners don’t keep trimming them down.

  5. confidential says:

    Waste our hard earned taxes suing a watch dog citizen very much needed in the city and county? What are we supposed to do, wait until the trees are down like happened with Centex and the former Palm Coast Resort destruction? The way I see it, the injunction was to prevent the downing of those trees canopy that will affect the overall value of Palm Coast as a whole. If the city was not materializing it had nothing to worry about! City is very vague in showing us the plans for these mature gorgeous trees for one says will not be put down while marked with the white ribbons and to the contrary also estates that will be removed taken elsewhere and replaced with new ones “and I suspect maybe some young stick yearlings?” Then McDonald is correct… Good Bye to our luscious canopy. In not distant past look what city allowed “something we never approved” and have now instead of our beloved Palm Coast Resort!. Our centenary Oak canopy gone forever and our grandfathering access shut down forever there.
    As a resident taxpayer I do not agree with all that Mr. McDonald advocates, but he is correct in some of his issues presented. We have our grandfathering use rights violated. Also why to widen Palm Coast Parkway East of I95? That will destroy our center landscape and anyway we will have a 2 lane Hammock Bridge for a long time that won’t sustain a six lane Parkway! I see cities in Florida that preserve the beauty of areas like we have in the Parkway East, other than giving in to developer landowners. What about the city using the city attorney that we all have to pay for, to defend our residents taxpayers grandfathering rights for a change?
    Instead city should be spending the money to have water front owners repairing and maintaining their seawalls falling into the country club canal South, creating a near future navigable hazard and eyesore for all the surrounding neighbors.
    Also use our city attorney to regain ownership from Centex-Pulte the so called future Villas lots to be located in the very center of our Palm Harbor Golf Course aka practicing range, after we spend over 5 millions in repairing the neglect and destruction damage inflicted by Centex. What about using the city attorney also to inquire why we have to subsidize year after year a golf course that has a waste to start with, with four layers of management as is known; a General Manager that paid enough to afford him the commute from Broward, a Golf Course Manager, an Events Manager and a Restaurant (mostly empty) Manager…

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