The Flagler County Commission at a minute after 11 p.m. Monday approved The Gardens development of 335 homes on the east side of John Anderson Highway in a 3-2 vote, with few conditions, possibly ending the developer’s nearly two-year, three-front battle with county regulators, Flagler Beach government and a community organization that had opposed the proposal. But opponents hinted at litigation several times.
“This is a big change for Flagler County,” Commissioner Greg Hansen said. “We’re making a decision here that’s going to have a large impact on our county.”
Commissioners Donald O’Brien, who made the motion for approval, Joe Mullins and Dave Sullivan voted for approval, five hours into the hearing. Greg Hansen and Charlie Ericksen voted against. Ericksen’s dissent, his last, capped eight years of service on the commission. His tenure ends today.
“This is difficult. There’s no doubt about it. It’s very hard, and I don’t want to lead the discussion here before the other commissioners have a chance to look at this,” Sullivan said before the vote. But there was little discussion: Sticking points remained at the heart of the discussion until almost the very last minute, some of them remaining unresolved, among them the developer’s responsibility to build a cross-over between the east and west sides of John Anderson. The county maintains that the cross-over must be an overpass or an underpass. The developer maintains that it “may” be built at street level, like a regular intersection, but that traffic is not an issue under current phase one plans.
The development plan, called a Planned Unit Development, is based on a 2005 agreement that cleared the county commission at the time. The agreement was with then-developer Bobby Ginn, when he owned the property. The developer considers that plan still in effect, so all he had to do, in his view, was get the commission’s approval for a somewhat more specific site development plan. Opponents sought to compel the developer to submit a new PUD. Aside from delaying the project, it would have reopened the regulatory process down to every detail of the proposed development.
“Does anyone really think this is the same project that Mr. Ginn got approved, battled really hard to get approved?” John Tanner, the attorney representing Preserve Flagler Beach and Bulow Creek, the grass-roots group. “Does this really look the same in any respect except geography of the property? That’s about the only resemblance. This is really different from what the planning department and the county commission in ‘05 agreed to.” Tanner had expert witnesses and individuals who sought standing to press opponents’ points, among them Barbara Revels, the former county commissioner, who cautioned against endangering property values as a consequence of the proposed development “if you do not keep the traffic off of John Anderson Highway.”
The list of conditions incorporated into the approval motion ostensibly includes resolving “outstanding staff technical comments,” specifying future development plans rather than leaving them vaguely marked as “reserved for future development,” securing utility agreements and whatever other conditions the commission deemed necessary.
A striking aspect of Monday’s vote was that aside from delineating the usage of future tracts, the commission, despite entreaties by Flagler Beach government and residents, added no other condition on the developer–Ken Belshe of SunBelt Land Management, who was represented by attorney Michael Chiumento. So the plan was approved largely as submitted by Belshe. Flagler Beach government had drawn up a list of four concerns, or proposed conditions. The county largely ignored those.
Belshe spoke toward the end of the meeting, saying he’d kept silent for most of the proceedings so the public had its say. He now had his.
“Many times, we, our company, has been villainized in some of these people’s comments that we’re going to rape and pillage the land, we’re going to do all these things. One thing I took particular offense to was a video that showed Bulow Creek.” He was referring to a video by Preserve Flagler Beach and Bulow Creek, the pressure group that grew out of opposition to The Gardens’ plans, which had started two years ago with a proposal for almost 4,000 homes and apartments.
“Bulow Creek is a pristine, beautiful place. We don’t own any of Bulow Creek. All of that property and much of–and a whole bunch of the land on the east side of Bulow Creek was given the county by the previous developer,” Belshe continued. “We’re not here to talk about developing Bulow Creek. That’s not what we’re here for. We’re talking about the east side of John Anderson. But the part that bothered me was that they then switched to a photograph of what is now Marina del Palma as if to say, it was under construction actually, as if to say that Bulow Creek was then going to look like Marina del Palma. A lot of the people here haven’t been here long enough to remember what Marina del Palma and the adjoining property looked like 15 years ago. It was an industrial nightmare. There were giant, concrete structures on that property. There was trash and cables and bricks and concrete strung all over 150, 200 acres there. The fact that it’s gone now, you can thank a developer for that.”
Much of the hearing featured the testimonies and objections of residents and Flagler Beach officials, along with the county’s presentation–which now recommended resolution through approval of the application–and Chiumento’s responses.
First commissioners had to decide the matter of standing, which gives those asking it “a legal presence in the case different from a member of the general public,” county attorney Al Hadeed said. To have standing, he said, a party must show that he or she would suffer “special damages different in kind than suffered by the general public or the community.” Standing “gives them a legal presence in the case different from a member of the general public,” he said.
Three parties were seeking standing: Chiumento, Drew Smith, Flagler Beach’s city attorney, and Tanner. Chiumento objected to extending standing to anyone else in a site plan process that could “derail” the proceedings. “We’re more than happy to not object to them having additional time,” he said–but not standing.
Smith, citing a case he successfully argued from his experience, told commissioners that they would bait litigation if they denied standing, and that the city “hands down should be a party” and have standing. Tanner said Preserve Flagler Beach represents hundreds of citizens who are looking at a “loss of property values” and quality of life from a project that would “totally change the dynamic of that neighborhood.” Denying them standing “would be a set-up for the board to be appealed and to lose the issue,” he said.
Commissioners opted against standing. But they granted extra time for the three parties seeking it. That segment of the meeting alone took almost an hour. Only then Adam Mengel, the county’s planning director, presented the project’s analysis from the county’s perspective, now all but mirroring that of the developer. He did not mention internal disagreement over the project between his department and the legal department, which sees the PUD as too altered not to warrant an amendment.
“I’d encourage you to make a decision tonight,” Mengel said.
“This thing has been through your staff for a good year,” Chiumento said. He repeated that this was not a modification of a Planned Unit Development–the very point opponents are arguing. “This is an existing PUD.” He rejected the claim that the project would cause environmental damage, that homes would be built in a federally-designated flood zone, or that construction would affect sensitive land–all of which, he said, has been “conveyed to the community, to the county.”
“The rules that govern development have been complied with,” Chiumento said. There will be more traffic, but water currently discharged in the Intracoastal will be recycled instead. The site was moved away from Palm Drive, he said.
He then addressed questions the commission raised in September and that Flagler Beach government has also raised since, starting with traffic. Traffic consultant Sans Lassiter of the Lassiter Transportation group said a pre-covid traffic study indicated the two lanes of John Anderson are “clearly sufficient,” with some improvements. There are some 140 homes along John Anderson today on the Flagler County side, 90 on the Volusia side, for a total of 230, he said. The Gardens would bring that close to 600. But, he said, there are 1,960 existing homes along Colbert Lane, which is also two lanes. “It is not suffering any issues with capacity,” Lassiter said. Another consultant addressed flooding concerns and Chiumento spoke of a coming utility agreement with Flagler Beach.
Smith, Flagler Beach’s city attorney, provided the evening’s most forceful case for reconsideration of the county’s approach.
“We stand by our commitments. What we’re asking for is for the developers to stand by theirs,” he said. He immediately challenged Chiumento’s interpretations, starting with the reuse matter: The Gardens’ responsibility doesn’t stop at just laying down pipes. It’s responsible for building a plant. That can be renegotiated. But for now, it’s in writing, Smith said. He was just warming up.
“It is a very developer-friendly developer’s agreement,” he said. “To add insult to injury, the developer is now here before you to take further liberties, to say let’s take this general developer’s agreement and make it even more generous. At the end of the day it’s your decision. I’m impassioned about it because I’m impassioned for people like you, it’s what I do for my career. I represent boards, I represent elected officials. I don’t like to see elected officials taken advantage of, and I think you are being taken advantage of. You are being asked to give up authority that you have right now to say No, when you could say, you know what, this is too much, this is too much of a change. Every developer’s agreement I’ve worked on has a modification provision in it. As Mr. Mengel said earlier, it looks like you have the whole Flagler County planning association here. There’s a reason the planners are here. This is not normal. This does not happen every day. You don’t see this kind of revision to a planned development happen like this.”
“I can’t make the case better than your own legal department has,” he continued, citing the county attorney’s office’s own disagreement with the county’s planning department. “I think you have the legal authority to have more input into this. The city of Flagler Beach is here today to ask you to exercise that authority,” he told commissioners, cautioning them against a legal challenge–which could delay the project two or three years, he said. “And they know that,” he said, pointing to Chiumento.
Flagler Beach planner Larry Torino echoed Smith’s claims in more regulatory language, underscoring elements of the development that are not in compliance with land development rules, specifically rules controlling Planned Unit Developments’ review process. For example labeling as “future development” a swath of the development doesn’t comply with requirements for more specificity, he said. Not at this stage of the development. He then pointed to land-use acreage numbers that didn’t add up. “I’m not opposed to this development. I’m opposed to the process,” Torino said. If he were reviewing the proposal, he said, “I would return this application to the applicant,” and ask for more precision.
“So you’re saying that our planning department is incompetent, doesn’t understand math, or doesn’t understand the process?” O’Brien, the commissioner, said, stopping him.
“This should not be at this level of approval, number one,” Torino, who was not about to directly indict fellow-planners, said. Based on a lack of data, “I find this application not in compliance” with submittal requirements, he said. He then challenged the notion that the planned golf course was workable, as designed.
The commission over a 45-minute segment also heard from Flagler Beach city commissioners and residents, many of them members of the Preserve Flagler Beach group.
“I think it’s quite evident that people want to re-litigate the PUD that happened years ago. This isn’t about that. This is about this plan we put forward to match the concept plan,” Chiumento said when he was granted the next-to-last word. The last, before commissioners voted, was Belshe’s. “Developers can do things right. We feel we have done this right,” he said.