Flagler Beach Commission Will Lay Down 4 Conditions for The Gardens Development, Adding to County’s Pressure

County Commissioners on Sept. 21 unanimously agreed to table The Gardens’ application to modify its land-use agreement–an agreement dating back to the middle of the last decade, when it was presented by Bobby Ginn–delaying a decision until at least the meeting of Oct. 19. Commissioners had a few questions to which they want answers by then–about utilities, an overpass over John Anderson, whether there’ll be houses on both sides of the road. But the questions were framed with little precision. The questions were not conditions. They were inquiries.

That’s not the Flagler Beach City Commission’s approach. It’s laying down four specific conditions and hoping they have enough leverage over The Gardens, given that The Gardens depend on Flagler Beach for water and sewer service, to make the conditions stick. They plan to exert that leverage through county government, joining their conditions to county commissioners’ inquiries. 

But it’s still a hope: as Flagler Beach City Attorney Drew Smith reminded the commissioners, “It’s a high bar” to clear when a developer has property rights, so “it’s encouraging them to dig deeper, I think is what you’re asking them to do.” The Gardens development is not obligated to abide by Flagler Beach’s conditions–unless the county adopts them and makes approval of The Gardens’ Planned Unit Development modification application conditional on those. 

The city commission meets on Oct, 2 at 4 p.m. in workshop, followed by a special meeting, to ratify the conditions as drafted by Smith. 

The conditions were crafted by Commissioner Eric Cooley. He wants an overpass over John Anderson. He wants the maximum number of dwellings The Gardens could build to be written in stone, at 453. He wants the developer to build a sewer-water-reuse infrastructure or pay for it if the city has to do so. And he wants an independent engineering study about flooding potential, that the developer would pay for. 




Cooley says the city has standing to make the conditional demands. “The burden is on them to protect the existing folks that are out there,” Cooley said, since the developer is submitting a request for PUD modification. “This is not just a PUD approval, this is a PUD modification, so it’s not just only including competent, substantial evidence, it’s not doing just that in a tiny little box, like kind of how they phrased it at the meeting. This is the same thing as when you want to change zoning and stuff like that. You have to make sure you’re not going to have a negative impact to the areas around you, and [these] modifications in those cases [do].”

Cooley got no disagreement from fellow-commissioners. 

The conditions set out by the city are closely aligned with those of Preserve Flagler Beach and Bulow Creek, the grass-roots group established last year to battle The Gardens, initially considering the development out of proportion with its surroundings (it has since scaled back) and listing other concerns since.  

Flagler Beach’s pressure on the commission is no small matter. If the city puts its full weight behind its conditions, as now seems likely, the county would be in a position either to go along or to reject those conditions (in whole or in part), but to do so in an election season: incumbent Commissioner Donald O’Brien is vying for reelection. He faces two independent challengers. A vote against Flagler Beach could lose him much of the the barrier island and prove enough of a shift in a three-way race to lose him the election, though he won his primary overwhelmingly. 

Cooley’s move was a surprise, as Flagler Beach’s role as utility provider appeared settled–and because it’s usually Flagler Beach Commissioner Ken Bryan, who rode to election his role as a board member of Preserve Flagler Beach, who has been fighting The Gardens battle on the commission. He was clearly grateful that the city’s sling-shot back into the debate came from Cooley, a business owner in the city. 



“I commend you for bringing that up, because there are some issues that we certainly have to look at, as we’ve all been talking about for months now,” Bryan said, citing flooding worries especially along Palm Drive. “Whether it’s on this commission or another commission 10 years from now, they’re going to say why in the heck did these guys let this thing go through or didn’t do something to try to protect us, because now the tides are rising, the water is rising, and all due respect to Mr. Parker the other night, when he said I don’t design areas that flood”–commissioners interrupted with laughter. Bryan was referring to Parker Mynchenberg of Parker Mynchenberg and Associates, the Daytona Beach engineering firm contracted by The Gardens. Mynchenberg had told county commissioners last week that he’d been designing subdivisions for decades, and that he’d developed Palm Drive years ago. “The last thing I’m going to do is flood a subdivision I personally designed and developed,” Mynchenberg said. 

“It may not have flooded 25 years ago, and it probably worked well 25 or 30 years ago,” Bryan said, “but here we are now and some of those areas back there have been breached, and it needs to be addressed.” 

As he outlined his proposed conditions, Cooley repeatedly spoke of them as in part retaining what had been in the original PUD a decade and a half ago. That’s one of the points in serious contention between the developer and both the county and, now, the city. “Number one, we ask for the original road design to be retained,” Cooley said of an overpass or an underpass. “Keep in mind that we’re not asking for anything above and beyond. We’re asking for what was originally there to stay there.” 

Similarly, he said the 2005 design had a “finite number of dwellings, there was no land bookmarked for future development.” All the phases of construction were outlined. Now, the 453 homes, is what’s slated for the initial phase. “This one has huge blank spaces that you and I know what it’s for,” he said–meaning further development. The city would take a position to compel the developer to the number of dwellings that was approved in 2005. “We stay, you’ll stick with the original PUD number of dwellings, which is 453, not buildings, because one building could hold 500 people, it would be dwellings, or residences, or whatever legal term we would need,” Cooley said. “But we request that the number of dwellings that was previously approved in 2005 stays, that’s the cap. They can future develop anything they want, but as far as people that live there, it’s going to be what was originally approved. That’s my next suggestion.” 



As for a water-reuse infrastructure, “whether they pay the city for it or whether they design their own that syncs up with our water treatment plant, they will cover the cost of the water reuse and they will use it on their golf course at a date certain,” he said, later setting that date as 2024, in line with a state mandate that the city stop dumping its reuse water into the Intracoastal, though Commission Chair Jane Mealy said that date may change. “Keep in mind, we’re not adding anything, every single thing that’s here was part of the original agreement that they’ve since removed as part of this modification.” 

Finally, he said, an independent engineering study must certify that The Gardens won’t flood surrounding neighborhoods. “That includes Flagler Beach,” he said. “They did their own study on flood mitigation for themselves. They did not do a study on how it impacts us, and what they’re doing when they build this, they’re raising the elevations, they’re bringing in fill. If you raise the elevation of the ground level in an area that’s designed to take on water when there’s a flood, the water can no longer go there, it has to go somewhere. What we need to do is have an independent engineering study that if there is any engineering that needs done, they’re going to have to mitigate it.” 

Smith assured commissioners that the city had standing–an issue that rankled members of the Preserve Flagler Beach group, who were not given standing at the last county commission hearing, not in the legal sense, though they were not prevented from speaking. “Take those bullet points, put it into a friendly but firm letter, and say: these are the things we would like, and we all need to lean on staff a little bit, and this is the why,”  Smith said. “Make those arguments and points at least so they make the record, so they have them before them, they have to see them, again in a friendly way, but being direct with them, and putting as much evidence as we can to encourage them to get more evidence.”

Smith was to submit the letter to the commission for its approval at its next meeting two weeks hence. Commissioner Rick Belhumeur preferred holding a workshop sooner to nail down the document, send it to the county, and be at the county commission’s October 19 meeting as a commission, with Smith, to press the case. (Actually, Flagler Beach commissioners could not do so as a body, since that would amount to an unadvertised meeting of the commission. They would have to do it as individuals.) 

“As far as these three topics go,” Cooley said, “we easily have standing, and I do not see them trying to argue us out of that. That would be just a bad faith move in the public eye. That would not be wise on their part.”