Technical Review Committee meetings are usually–actually, always–staff-level meetings whose participants go over the mechanics of land-use applications. The committee’s authority is limited to what it describes as “quality control,” ensuring that the applicant has everything in order before the item can be forwarded to the planning board, then the county commission, for actual decisions.
You wouldn’t know that from this morning’s meeting of the review committee. It took place in its usual, living-room sized conference room on the first floor of the Government Services Building in Bunnell. But it drew nearly 100 people squeezed in the room, more outside. It drew two sitting county commissioners, two sitting Flagler Beach city commissioners, a former Flagler Beach commissioner, and a former state attorney, who happens to be the lawyer representing opponents of one of the projects before the review committee: The Gardens, a planned 3,966-unit development on 825 acres straddling John Anderson Highway.
The turnout was not a surprise. The only other time The Gardens were open for public discussion at a community forum, one organized by the developer to explain the project and hear public concerns, over 300 people turned up at the Hilton Garden Inn, many complaining that the venue was too small and that any such meeting should be held at the Flagler Auditorium.
The last time a land-development issue needed the 1,000-seat auditorium to accommodate public meetings was a decade ago, when the Ginn Corporation was planning a 400-some development along John Anderson Highway. The housing collapse and Ginn’s bankruptcy stopped that project. It so happens that The Gardens is SunBelt Land Management’s successor to that very project: SunBelt bought the land and is hoping to modernize the plan along more contemporary housing needs that reflect demand for smaller homes, smaller lots, higher density (most of the housing units would be apartments, some in multi-story buildings), and amenities fit for younger families. But the size and location of the project is drawing the same intense opposition, especially from Flagler Beach residents, that the Ginn project did in its day.
The opponents turned out this morning as they did at the July 1 meeting at the Hilton, this time clad, many of them, in pitch-black shirts, signaling the funereal color of that movement and its evolution into an organized pressure group. “It symbolizes our strength, power and unity in numbers,” Elizabeth Hathaway, a chief organizer of the group, said of the color. “It also symbolizes the sadness induced by this type of reckless over-development due to the negative impacts it would bring to the community, environment, water quality, infrastructure, and the overall quality of life.”
The technical review meeting item was barely an item: the developer, Ken Belshe, was at the table with his attorney, Cobb Cole’s Rob Merrell. The application wasn’t actually ready for the review committee’s sign-off. The committee was assigning a traffic study and an environmental study to third-party reviews. Merrell wanted to ensure that his client knew who those third parties were (Jacksonville’s ETM Inc., the civil engineers, for the traffic study, Carter Environmental for the environmental study. Both companies are under contract with the county for various reviews.) “So let’s make sure we keep those peer reviews and the analysis that comes from that in the right compartments, that’s all I would say for the record,” Merrell told the committee. “And as soon as you know who those folks are, we want to make sure they’re connected to our team.” That done, Belshe and Merrell left.
They’d have probably benefited greatly had they stayed: for the next 70 minutes, the session turned into a town hall meeting that not-so incidentally revealed the precise strategy both the opponents and the county will follow in the coming weeks and months, revealing opposition not only from the Flagler Beach group, but significant “concerns,” as Adam Mengel put it, from the county administration. Mengel, the county’s planning director who leads review committee meetings, invited all in attendance to write their concerns, which will be made part of the record, and allowed all those in the audience to ask questions and make statements, including at one point a series of statements by Commissioner Joe Mullins, who–never shy on seizing a moment for its political potential–went as far as telling the crowd “I’m for whatever my community wants,” and even setting up a town hall meeting on the issue at Santa Maria del Mar for Aug. 6, and inviting another commissioner to host it.
“We will have growth, but we need to define our growth, we need to say this is what we want coming in the area, and I think this town hall would be important,” Mullins said. “That’s really what these town halls are for, is to unify people.” He went further, willingly compromising the objectivity land-use applicants expect from commissioners who will hear their case and setting up a legal vulnerability the administration is likely not keen to deal with: “I say this too, I mean, guys I’ll say it point blank: I support what y’all support, but I need to be able to know why I’m going out there. I can get a lot more aggressive when I’m, when I understand why my voice is saying what it is and these town halls are important.”
The project falls in Commissioner Dave Sullivan’s district. Sullivan was there. He wanted to speak. Sean Moylan, the assistant county attorney, had to quickly intervene to ward off discussion by Sullivan, the two commissioners having by their presence and willingness to address an issue on their future agenda by now dangerously close to tripping over sunshine law violations: though publicly advertised, technical review committee meetings don’t fall under sunshine rules, and the two commissioners were not allowed to engage in back and forth on the issue outside advertised parameters. Sullivan restricted himself to telling the crowd he was here, he was listening.
Mengel told the crowd that the third-party reviews are expected to be done in the next two to three weeks. “I’m hoping it’s going to be extensive because we’ve got some concerns,” Mengel said, “otherwise we wouldn’t be going for third-party reviewers.” The results of the reviews would then go back to The Gardens’ developer for a response before reappearing before the review committee, either in August or September.
Mengel addressed Flagler Beach residents’ questions about the development’s dependence on Flagler Beach’s ability to provide water and sewer services. Residents say the city’s capacity to provide those services is non-existent. “All we need at this point is, yes we’re here, we’re a utility, we’re in town, we’re watching this, we’re able to provide services, and that initial letter that came out said, Flagler Beach is prepared to work with the developer on the phasing,” Mengel said to immediate groans from the crowd. “Hang on, don’t kill the messenger, I’m just telling you what the letter said. But I think that was clarified more in the most recent comment, so look closely to what’s in there from Flagler Beach, clarification on their ability to provide the services. We see that at the time of platting.” He said that Flagler County as the local government with jurisdiction “cannot provide a final plat approval unless and until those commitments are in place, that the capacity has to be there.”
Aside from that, however, the county’s review of the project so far concludes that “The project, as proposed, fails to meet relevant Objectives and Policies of the adopted Flagler County Comprehensive Plan.”
As the technical review meeting wore on, the discussion turned to explicit, potential legal strategies and ramifications.
Tanner, the former state attorney representing the opponents’ case, outlined his strategy: “The focus really isn’t the PUD,” he said, using the acronym for planned unit development. “It’s the long-range planning scheme where that land is currently. A lot of that land is ag[riculture]-timber, one dwelling per five acres. Until that changes, the PUD cannot, as configured now, because you can’t count 1,200 acres, can’t even come up with 400 units, and so if they hold the line on the zoning, so to speak, then basically, that low density would be preserved.”
“That is correct,” Mengel said, saying the amending the county’s comprehensive plan is the first step, Mengel said. “Then the PUD then cannot follow.”
So the battle would be focused on zoning, Tanner said, before Mengel corrected him: it would be focused on the so-called “future land use map,” which sets the density limit. “The land use change is needed. The caution I’ve got there,” Mengel said, “densities are not real crazy. The bad thing about it, when you’re looking at that map, 800 and 4,000, even though it’s high numbers, this ends up being what, five units and change I think per acre, I think that’s how it works out. That’s actually in keeping kind of in the middle ground of our stuff.” But, he said, there are issues with the flood zone, the transportation impacts and the “nature of the property” are future land-use map arguments.
Moylan explained further: “The FLUM amendment, the future land use map amendment comes first. That is a legislative act, and so they have a lot of discretion,” he said, referring to the county commission. “It’s a lot harder to overturn that in court. The zoning amendment is a quasi-judicial procedure based on competent, substantial evidence. There’s a little more power in the court to overturn that.”
“The FLUM decision would withstand legal attack much more substantially than the zoning, PUD issue,” Tanner said.
“Likely so,” Mengel said.
“So if the county stops at the FLUM, or actually maintains the status quo and doesn’t allow them this exception, then the county commission and your decision is much less likely to successful attack,” Tanner said.
“I agree on the face of that,” Mengel said. “I don’t want to be giving legal advice where I shouldn’t.”
Toward the end of the segment focused on The Gardens, several people spoke from the audience less to ask questions than to take stands. “We are not anti-development. We want to make that very clear. We are not anti-development. We are for development that is thoughtful and sensitive to the environment and the community’s wishes. It’s not a case of NIMBY,” Robin Poletta said, referring to not-in-my-backyard opposition. “Personally looking at the plan, the projected PUD, it’s beautifully done. And it’s thoughtfully done, and it does hit a lot of good points. This is just the lousiest location that they could pick to put that kind of high density on housing and commercial in such an environmentally sensitive area. If they were to go into the Palm Coast area or along Route 1 west of I-95, I would be there cheering them on. It’s just that this area that they’re proposing is just so inappropriate on so many different levels.”
Mengel reminded the audience that over the years huge tracts of environmentally sensitive lands have been built over, “bulldozed over.” Heads nodded in the audience. But Mengel had a point: “We call them home now,” he said.
“And we can’t get them back,” someone said in the audience.
“And we can’t get them back. And I get it. But just keep that in mind. And that’s not an excuse. We do things different. But remember, you’re living in yesterday’s environmentally sensitive lands.”
“We don’t have to repeat history,” Joy McGrew, a former Flagler Beach city commissioner, said. “We can make a difference by saying the almighty dollar doesn’t outweigh what you just said. All of the precious things that all of us came here for: if you allow the dollar to outweigh, we’re going to lose even more, and we don’t have to.”
By then, only a handful of the original crowd had remained, and the session ended at the 75-minute mark, letting the Technical Review Committee return to its more routine matters.