The Flagler County Commission in a series of votes late Monday night approved a pair of related developments flanking the north and south sides of Lakeside By the Sea on state Road A1A, near the northern edge of the county.
The votes, all 4-1 and 3-2, punctuated a three-hour hearing on a development opposed by the near-totality of the 126 homeowners in Lakeside, many of whom thronged the commission’s chamber, but in fewer numbers than they had when the issue went before the county’s planning board in October and was approved there unanimously.
The developments, called Los Lagos (The Lakes) or Las Casitas (The Little Houses), will bring an additional 190 homes to the Matanzas Shores development region, nearly tripling the number of houses on that side of A1A, and will be built at 9-foot elevations, two feet higher than the houses in Lakeside.
Lakeside and Matanzas Shores residents raised numerous objections to the plan, some of them classic not-in-my-backyard objections (more traffic, architectural incompatibility, less security), some of them serious matters of questionable legality in land transfers, the irregularity of homeowner association votes, the paving over of a retention pond recently-flooded Lakeside residents consider critical to their stormwater system, and the overburdening of a sewer plant. But all those issues were ostensibly not in the purview of the county commission to consider.
And there was the rub. The majority, if not all, the issues that Lakeside residents contested amounted to the equivalent of a sincere protest, but outside the arena where decisions are taken. Inside the arena, commissioners, Adam Mengel, the county’s planning director, Sidney Ansbacher, the developer’s attorney, and Al Hadeed, the county attorney, sought to cordon off all those protest issues from the dryer matters commissioners could legally decide. Those matters were laid out in Mengel’s staff report, which recommended approval. They precluded most additional opinions by residents for being non-expert opinions. And they compelled the commission to vote only one way, making the proceedings more of a formality.
The outcome was foretold, as much by law as by administrative planning, reducing protesters to spectators whose voice was little more than suffered—indulgently and earnestly by the commission, and a particularly benevolent Commission Chairman Greg Hansen, who kept from adding fuel to the fire by letting protesters speak well past their allotted time. The commission isn’t to blame so much as Florida law, as Hadeed would later explain, describing it as an issue of property rights—somewhat of a misnomer: all sides at Monday’s hearing were arguing from the perspective of their own property rights. What Florida law has historically and disproportionately favored is developers’ rights, and the way state law prescribes the organization of hearings like Monday night’s explicitly favors the developer, as Hadeed himself later explained, speaking of Ansbacher: “He has more rights under Florida law, in presenting this application, than anybody else.”
In state law, developers’ rights hold a privileged position local governments displace only at their peril.
The application consisted of a series of sub-applications, each heard and voted on separately. So the evening took on a repetitive feel, its template established with discussions over the first application in the series. What followed with each discussion was a mirror of that opening segment, with Mengel laying out the facts of his report at his usually furious, often incomprehensible clip, Lakeside residents speaking their objections in turn, along with Dennis Bayer, their attorney, and Ansbacher, yin to Mengel’s yang, presenting the applicant’s arguments in an impossibly slow, almost affected drawl that betrayed more contempt than deliberation —in his sighs, his self-deprecating asides (he once called himself a “schmuck,” to no one’s comprehension) and his verbal darts at the opposition. He appeared to be displaying the very attitude that Lakeside residents alluded to as they described their issues with Duval’s way of doing business.
Hansen twice picked up on the tension, and sought to put Ansbacher—and the residents–on notice in sharp terms: “I’m kind of ashamed of all of you for not settling this before you got here,” Hansen said. “There’s a lot of mistrust I sense in all of you, and I wish you’d have settled some of this stuff before you got here. But, that said, the motion is to approve application 3082.” And in just about the same breath, he voted to approve.
Hansen was joined by Commissioners Nate McLaughlin and Don O’Brien, with Dave Sullivan dissenting every time, and Charlie Ericksen dissenting most of the time. Ericksen did not explain his opposition. Sullivan didn’t, either. “We do control one thing, and that’s approval or non-approval of the overall plan. That’s where we all come in,” he said. “We get this one shot, which is we approve the plan to go forward or not.”
By then he’d heard numerous objections to the plan from the public.
“The history of the undeveloped parcels within Matanzas Shores is long, often very ugly, and sometimes very perplexing, especially for a newcomer like me,” Frank Weiner told the commission. “There was a bankruptcy, a foreclosure and lots of court proceedings over time involving several parties and I could stand here for three hours rather than three minutes recounting the history, but in the end we’ll never be able to connect the dots anyway. To me it’s a long, painful story of my lawyer can beat up your lawyer, and the one who can afford the highest legal fees gets the prize. How does that turn out for us at Lakeside, a small community of mostly retired senior citizens on fixed incomes such as myself?” He said homeowner association members have been “bullied” and threatened by lawsuits even by their own attorneys on the way to the current application.
The so called Percolation Pond 3 was one of the more recurring issues. The pond will be eliminated and filled in so several houses can be built in its place. The property was conveyed to Duval for $10, but residents questioned the validity of the sale as well as the elimination of the pond. “Perc Pond 3 which is a vital source of storm retention water, has been deeded to Duval for the sum of $10,” Peter Duhart said. “The original ITT Matanzas Shores documents preclude any existing retention pond or perc ponds being paved over, used in any type of construction.”
But the county said the issue was not for commissioners to decide.
There were questions, as detailed by Bill Clay, president of the Lakeside homeowners’ association (and for eight years the general manager of the sewer plant) about Duval’s commitments to expanding the existing sewer plant.
But the county said that’s between Duval, the residents and the state Department of Environmental Protection.
Dennis Bayer, who knows the history of the barrier island at least as well as Hadeed, also questioned the title making Duval the owner of the percolation pond, as well as Duval’s commitments to certain improvements—a pledge for a $3,000 sewer hook-up fee from each new house later cut to $1,500, a pledge to build Lakeside a new swimming pool later altered to a pledge of $200,000, and only when half the new homes are to be built, and questionable ways that secured homeowners’ approval of Duval plans.
“They jury-rigged an election,” Bayer said, “we weren’t allowed to vote on it, there was no hearing, they did an email vote. Sea Colony got to vote on this project and the giving up of Perc Pond 3, but my clients who would be most directly adversely impacted were completely precluded from the vote, no notice, no opportunity to present our issues to the masters’ association. I realize that’s not completely an issue that you have, but should we sue on the way that the vote was conducted I think there’d clearly be a cloud on the title as it relates to Perc Pond 3.”
As town attorney for Marineland, “we’ve seen the flooding, we know the handwriting on the wall,” Bayer continued. “If you look at the other areas in this part of the county, it’s a word I know the county administrator doesn’t like to hear, but Marineland Acres. Supposedly all of that was done in accordance with the standards that were in place at the time. How many millions of dollars is it going to cost the county’s taxpayers to clean that problem up? We’re seeing the flooding occurring, it seems to be occurring more frequently.” Bayer said even though Duval has met the minimum requirements in place now (set at 25-year floodplain events), the agreement doesn’t reflect current realities, as Lakeside residents well know from seeing their streets turned to rivers during Hurricanes Matthew and Irma.
Lakeside residents paid around $10,000 to have their own engineer review Duval’s plans only to find those plans flawed, in that engineer’s analysis as described by the residents. If those plans are flawed, what else is flawed in Duval’s approach, several asked?
Then Ansbacher spoke. “A number of comments that were made go to something that I said right up front is irrelevant,” he said. “We did obligate ourselves well into the six figures on a number of agreements, and I will also point out that the testimony before the planning and development board was that again, under the jurisdiction of both the county engineer and the water management district, reasonable assurance was deemed to be received and permit issued. What saddens me is a good faith negotiation with a very competent engineer for Lakeside is somehow being represented as anything other than what we believed it to be, which was literally asking John Moy [the engineer], what would you do in order to ensure reasonable assurance from your side. We didn’t ask for any conditions. We just said: Mr. Moy, you do what you think is necessary. You tell us.”
Duval’s engineer, Ansbacher said, “accepted everything” that Moy proposed. Ansbacher then stressed that the only criteria in effect is a 25-year, 24-hour storm event compliance—not a different timeline, a concession that implicitly admits to the severe consequences of more severe storms, but that renders those storms irrelevant in so far as the strict consideration of the current application is concerned. “The criteria are the standards that we are supposed to meet,” Ansbacher said. “Duval has come in, Duval has responded to people’s comments, Duval has already modified the stormwater system and helped resolve an existing St. Johns River Water Management District violation for the existing system without yet having even a permit in place.” Development has been permitted there in one way or another for higher densities “for over three decades,” he said. Duval was lowering those densities considerably.
And so it went, in a rinse-repeat sort of cycle that stretched toward 10 p.m., each cycle punctuated by a vote, enough to defeat even Jack Carrell, dean of gadflies—whose own clock is approaching centenary chimes. Past 9 p.m., Carrell inched his walker to the microphone with the assurance of a Stonewall Jackson on his horse, ruffled his papers, pointed at commissioner when he could, and unleashed the evening’s saltier berating at each of them for letting the meeting drag on and giving the developer so many turns at the mic. He then walked out of the room and toward home, not sticking around to hear Hadeed, the county attorney, deliver his own soliloquy to prove Carrell—and most people in the audience—wrong.
A complete rendering of Hadeed’s summation is necessary as it frames this and many land development hearings like it in the proper legal context, dispiriting as existing residents may find the analysis.
“This is a quasi-judicial proceeding. This is not a typical item of business for the county commission. These decisions are governed by laws, statutes, codes and case law,” Hadeed said, citing a 1993 Florida Supreme Court case as his and the meeting’s procedural roadmap, among other materials. “Our job is to make sure that you understand the legal requirements and that you are applying those legal requirements. We don’t have the freedom, as maybe the members of the public might think, that we can decide whatever we want. That is not the case in quasi-judicial. Now, quasi-judicial means just what it sounds like: kind of like a court. The board acts as a court. The reason why Mr. Ansbacher is permitted to go up there and to make various comments in response is because he has—his client, that is—has a special status that’s recognized under the due process clause that we have to honor, and that is, as an applicant, he is a party, he has more rights under Florida law, in presenting this application, than anybody else.
“The board members, they have to make a decision based on–you heard this phrase, it’s very important, it means a lot—competent, substantial evidence. If something is not competent, substantial evidence, they are obligated to ignore it. Just like you see in a Perry Mason trial where the judge tells the jury, ‘ignore that.’ They have to do that as they sit there. It is their obligation to understand the facts as best they can, so they are permitted—in fact, I would say they are obligated that if they’re not exactly sure about something that’s said, they are obligated to ask questions to get to the bottom so that they can make a decision that’s lawful under the law. If we make a decision that’s unlawful, whether it’s prompted by a lot of people or an applicant who doesn’t present their case properly, then we are liable, the taxpayers are liable. We have to spend money if we are sued and we make an unlawful decision. And it is very important for us not just to avoid the liability, but we have to project, to property owners and citizens, that we’re going to adhere to the law governing private property. Private property is protected under the Florida Constitution, more so by the way than the federal Constitution, and by Florida statutes and by Florida case law. We don’t have the freedom to do as we wish. It might be that if we were sitting in some sort of setting where we could talk like, gee, is this a good idea, we might say, well, you know, we agree with you, it’s not such a good idea. But that’s not the issue. It isn’t whether this development is a good idea.
“The issue is whether based on competent, substantial evidence, it meets the requirements of the code. Which, by the way, is one of the reasons why the disputes about the contracts and the boats and the whatever aren’t a part of the decision, cannot be a part of the decision, because it’s not part of the code, and it’s not part of the statutes that govern the way we administer land use law. I know this may sound very difficult to citizens who aren’t familiar with this process, but this is the process. We didn’t create it. This is not our invention. We are doing this because we have learned. We have seen other governments that didn’t do it, and they got hit very badly with very high fee awards and very bad damages.”
And Hadeed was speaking as a lawyer who has devoted much of his life to mitigating the more destructive potential of development on the Hammock and preserving the Hammock’s character. His grin-and-bear it analysis was comparable to the way, say, Chief Justice Roberts cast the deciding vote in his opinion ratifying Obamacare’s tax mandate: the law clearly enabled it. Roberts, no fan of Obama, was bound to follow the law. Hadeed, who’s also sought to protect the county from undue lawsuits, concluded: “You will not, at least as long as I am here, you are not going to see that happen here, because I’m going to make sure that we stay on the right side of the law.”