It was in September 2002 that the Flagler County Commission first considered a proposal to develop 1,000 acres on the east side of John Anderson Highway into a 400-home golf community. It would take the commission another three years to approve the plan, controversial from its inception as presented by developer Bobby Ginn. At the time Ginn was riding high, or at least just a bit higher than the crest of the building boom–until he crashed and went bankrupt.
A few weeks ago S.E. Cline Construction’s bulldozers went to work clearing acreage on the east side of John Anderson as the project, now called The Gardens and under different ownership–Charlotte, N.C.-based Palm Coast Intracoastal, an affiliate of SunBelt Land Management, broke ground. There was no ceremonial groundbreaking, no invitations to local politicos, just work crews churning through the forest and brush, initially without permits newer than those that had been issued over a decade ago. It was a reflection of the project’s slog through regulatory obstacles and public opposition that’s not quite abating.
Three permits were issued on Jan. 14 for work on only the east side of the 825-acre property, which has about a mile of Intracoastal frontage but extends well to the west of Jon Anderson, its northern edge snaking to State Road 100 and Colbert Lane. Each permit had an uncommon disclaimer from the county: “Developer is proceeding at their own risk.” Adam Mengel, the county’s planning director, said the language is boilerplate, but not necessarily common: the county felt it necessary to include it “because we understand some of their state agency permits may or may not be in place.” The county is not allowed to withhold its own permits if other permits aren’t in place, he said.
Construction has begun, but the controversy that has shadowed the plan under both its owners continues: the group established to oppose The Gardens in 2019, Preserve Flagler Beach and Bulow Creek, filed a lawsuit soon after the County Commission approved the project’s latest land use application last November. The group is suing the developer and county government, naming one plaintiff specifically, Stephen Noble, whose house is adjacent to a segment of the development.
The suit, what Preserve attorney John Tanner calls a “placeholder,” reflects only the first version of a more detailed pleading that will be filed within days, but Tanner said its arguments will not substantially change with an emended version. Tanner himself presented those arguments to the commission and to the Flagler County Planning Board last fall in his group’s unsuccessful bid to require The Gardens to submit an entirely new application for a Planned Unit Development, rather than use the 2005 application the commission had approved back then. Opponents argue that too much has changed, within the development and around it, to allow for what they consider an outdated PUD to move forward. But the commission, adding a few conditions, sided with the developer, who is represented by Michael Chiumento, the Palm Coast attorney.
The lawsuit surprises no one: opponents had alluded to legal action if the commission was to clear the project for development. Its three claims: the county’s decision violated the opponents’ due process. Some of the amendments to the developer’s PUD allegedly “violate the county’s applicable land use regulations.” And the county’s decision ” is not supported by competent substantial evidence.” The last three words, competent substantial evidence, are the technical terms that apply the the parameters of evidence allowed at land use hearings, where all evidence presented must be sound, factual and reflective either of expert analysis or of parties directly affected by the development.
Tanner is co-counsel on the suit, which was filed by Brent Spain, the same attorney who sent Palm Coast government a letter a few days ago that implied a coming lawsuit if the city were to go ahead with permitting a lease for a 150-foot cell tower on the grounds of the city-owned Palm Harbor golf course. The city council never mentioned the letter, but in the face of considerable public opposition to the tower, it backed down.
The lawsuit means discussions between the opponents, the county and the developers will continue, whether through informal channels or through the formal, and required, mediation process in circuit court. To that end, even the county is making recommendations, especially now that new questions have arisen even in the county’s mind regarding the clearing of older trees on the property.
“I got word from the county two days ago,” Tanner said, “they’re very concerned about the destruction of the high-index trees, the oaks and the hardwoods that are on the property that are being bulldozed right now.” Tanner said there is no clear plan either for the preservation or replacement of those trees.
Mengel confirmed discussing that with Tanner. “If there is a mediation that’s under way that have the party also discuss that because the 2005 PUD agreement that remains valid was not optimal in that language. So if we’re going to talk about those things and get more specificity, I’d like the parties to talk about the index trees and the buffering along John Anderson.”
Normally, Mengel said, the county requires a tree every 50 feet in a buffer zone. John Anderson Highway residents and others have been concerned about the effects of the development on the designated scenic highway. Mengel said he mentioned a tree every 20 or 25 feet. “Not recommending that, just putting it out there for the parties to maybe discuss in their mediation.”
The lawsuit will not touch on matters not directly affecting its petitioners, but Flagler Beach government officials separately are continuing to press for the development to include measures to recycle and use recycled water on a future golf course. The city’s so-called “reclaimed” water is currently dumped in the intracoastal. That will have to end in a few years (the exact year is in flux: lawmakers may not stick to original deadlines). The matter of recycled water was also in contention as The Gardens proposal made its way through regulatory steps. But Flagler Beach’s commitment to provide water and sewer service is not: those services are guaranteed, at least for the first phase of the development. The city’s utility has capacity to provide both and certified as much in a letter.
“We are pleased with the significant citizen interest and input,”Tanner said. “Since we began opposition to the Gardens project it’s dropped from 3,999 to presently approved number of 453. That’s a significant benefit for the environment and for the community, so we don’t want to lose sight of the fact, even though we lost that last hearing, we accomplished a lot by keeping this in the public eye.”