It was a “squishy” issue, two Flagler County commissioners agreed Wednesday, reflecting what seemed like an extremely arcane question they had to decide about the controversial Gardens development off John Anderson Highway.
But looking past the arcana of the hour-long hearing, the arguments it generated and even the tenor of the decision it led to was a preview of what’s ahead at the commission for the proposed 335-home development: it won’t be an easy road.
Earlier this summer Flagler County’s Technical Review Committee and the developers of The Gardens stalemated. The county’s committee, which reviews development applications to ensure that they met essential requirements, still saw unresolved questions in The Gardens’ plan. But Adam Mengel, the planning director and chairman of the TRC, found it fruitless to continue the debate at that stage. The committee moved the matter to the county’s planning board.
The development has been largely opposed by a grass-roots group called Preserve Flagler Beach and Bulow Creek. The group’s attorney, John Tanner, filed an appeal of the decision to place the item before the planning board, calling it premature. In his appeal he charged that Mengel, not the TRC, had moved the issue, so he was appealing Mengel’s decision, not that of the TRC.
The planning board heard and denied the appeal in August. The County Commission heard it and denied it Wednesday.
It seemed like a victory for developer Ken Belshe and his attorney, Michael Chiumento, and a defeat for opponents of the project, a grass-roots group called Preserve Flagler Beach and Bulow Creek. They’re represented by John Tanner, the former state attorney. But it was less of a defeat than it appeared, because the appeal itself in essence leapfrogged the group’s concerns to the commission before the commission was to hear those concerns in earnest. Whether his appeal was appropriate or not, Tanner got to outline the concerns, giving him a tactical advantage as the issue moves forward now that he’s probed the commissioners’ receptivity. Even as commissioners denied the appeal, they just as clearly put The Gardens on notice: the points Preserve Flagler Beach are making are all valid, and must be addressed.
Put simply: Preserve Flagler Beach lost a procedural battle but gained commissioners’ sympathy and concerns on substantive grounds.
“I think Mr. Tanner made a lot of excellent points,” Commissioner Don O’Brien said. O’Brien said Tanner just did not have grounds for an appeal. “Other than that, there’s lots of other merits to the argument, and I look forward to a robust discussion of that when the item gets before us.”
Commissioner Greg Hansen, who’d motioned to deny the appeal, stressed in turn: “Mr. Tanner’s arguments, every one of them, is valid. Every one of them is valid. And I enjoin Mr. Chiumento and his party to take a hard look at those and fix ‘em before you come back.”
The hearing was just as instructive for The Gardens, now that the developer knows the obstacles to be overcome.
The details of the appeal are less relevant than the hearing about it. Much of the appeal’s basis sounds like semantics, especially since Mengel is, for all intents and purposes, the TRC: the group may include representatives of numerous county departments–engineering, building, roads, fire rescue and the county attorney–but Mengel substantially directs the TRC’s actions, sets its agenda and guides its consensus. Commission Chairman recognized as much toward the end of the hearing, and was not entirely convinced that Mengel’s role didn’t override all others.
Still, as the appeal went ahead, County Attorney cautioned the commissioners that “this is not any consideration of whether The Gardens project should be approved or denied.” That will happen at a later date.
Tanner argued it was premature for the planning board to hear The Gardens project application as it did in August. He gave numerous reasons: Deficiencies that Mengel himself had cited last October had not been satisfied. Deficiencies discussed at a county Technical Review Committee meetings in February and in March had not been satisfied, including concerns about traffic. The Gardens had not submitted an amended Planned Unit Development application or an application to amend land use rules. (Chiumento’s position is that no such amendments are necessary.)
Mengel has argued that he and the Technical Review Committee had completed their process, and that it was normal for the matter to move to the planning board.
“The TRC questions were answered by the developer applicant but did not necessarily agree with all of the TRC positions that were stated,” Hadeed said. “In other words they did not come to an agreement with respect to some of those issues.”
“Then why did it go forward to the planning board?” Commissioner Greg Hansen said. “Seems you would have to resolve these issues before it goes to the planning board.”
That in fact is what the TRC is responsible for–ensuring that all technical matters had been resolved before a development application moved to the planning board and the county commission. That had not happened, in Tanner’s view.
Hadeed said it was no different than any other items that would need to have further issues complied with, leaving it to the commission to set the conditions of an ultimate approval. “It is not out of the ordinary that there would be disagreement between the applicant and the TRC,” Hadeed said. “Hopefully they work through those issues, but the TRC had reached the end of its technical analysis, so that’s why it went to the planning board. Mr. Tanner believes that the points raised in the TRC were fundamental and should have been more comprehensively addressed or met by the applicant before it goes forward. That’s really what they’re going to be asking you about.”
“Passing the buck is what we’re trying to avoid,” Tanner told commissioners. He called the project “so raw, or green, that the planning board should not have had to look at it, it was unfair to them, it’s unfair to you.” He called the project “momentous” in its consequences to the whole county. He then relied on the county planner’s own documentation showing that the Planned Unit Development had to be amended, along with a comprehensive plan amendment that complies with new flood-zone requirements. Tanner said the county attorney’s own office laid out the deficiencies that had to be addressed. He said a peer-reviewed, independent traffic study was required, but not done.
He also noted “sections reserved for future development” clustered at different spots over the 800-some acreage of The Gardens, which he said contradicts the requirements of a Planned Unit Development. “These reserved parcels should be dedicated to public use,” Tanner said. “They should be deeded to the state of Florida, and that should be a state park. Instead we have a big question mark, acre after acre after acre on the west side [of John Anderson Highway] in the Bulow Creek drainage area, one of the most sensitive–in fact I think the county in its comp plan calls it a high priority water caution area, caution area–and they want to leave this open for future development. None of that had been addressed.”
“This project is not ripe,” Tanner concluded. “There are just way, way too many unanswered questions. This county needs to protect its people. You know, it’s one thing when you aren’t given the information you need. It’s not fair. It’s not fair to you. The buck’s being passed to you. Then you have to figure out how to make it work and how to protect the people and how to protect private property rights, which are absolutely vital in this country, I know that. But sometimes private property rights have to give way to the public good. And reasonable use of your property, and a fair profit is a good thing. But when you make a development or provide a use of your land which is contrary to the public good, that’s when good governance says wow, let us help you do it right. Well, we can’t. We don’t have the information.”
Chiumento started his rebuttal with an old joke: “Lawyers,” he said. “If there’s five in the room there’s six opinions, right? I’m going to tell you there’s probably five different opinions to what Mr. Tanner just told you, and if it’s not his opinion and he’s asserting that to be fact, then it is either intentional or it’s ignorant, and I’ll just say it, because these representations that he made to you that these things weren’t addressed by the TRC, that there are outstanding issues to the capacities they decided or they told you, are just not true.”
He continued, “What you just heard was all their problems with the development, and that’s fine, that’ll come. That was at the planning board, and that will be before you.”
But the argument to be decided Wednesday revolved around a clause in the land development code–whether Mengel made a determination that was improper or not. The “gripes and moaning about what might and might not be good with the development” have nothing to do with the section of code the commissioners had to interpret, Chiumento said.
“I’m asserting to you, number one, that we shouldn’t even be here,” Chiumento said, because the rule in question doesn’t apply to this given situation, and that the appeal should be denied the way it was by the planning board. Second, he said, “it is common, frequent, if not almost all the time, that development entities leave the TRC not in 100 percent lock, stock and barrel, skipping down the runway, saying we love it. There are issues that are up to you all to decide, because you’re the ones that decide what the land development code does and what your PUD agreements, whether they are applicable or not. So TRC doesn’t decide the final issue. Planning board makes a recommendation to you all, and you all decide.”
“Mr. Tanner’s sole intention by filing this appeal was to delay the process,” Chiumento said. But anything else that Tanner argued, Chiumento said, would be brought forward anyway in a subsequent hearing.
The commission’s vote was unanimous to turn down Tanner’s appeal, but by then victory for The Gardens was at best a pyrrhic one.