Flagler Beach Opponents Appeal Ruling that Cleared The Gardens for Development Along John Anderson Highway

The six-page appeal is a place-holder, with a longer petition to follow. Preserve Flagler Beach and Bulow Creek, the group filing the appeal with Stephen Noble (a John Anderson highway resident) had to meet a 30-day deadline from the time of Perkins’s decision for a valid appeal. They now have, casting yet another shadow over a development that has faced political and legal opposition since it was re-introduced two years ago.

The appeal seeks to quash Perkins’s Sept. 15 decision. But it does not present substantially different arguments than it did before Perkins–a judge known for his close and strict readings of statutes and procedures, and not known for errors or sloppy reasoning.

The appeal is asking the Fifth Circuit to determine whether the circuit court afforded due process and whether it misapplied the law. Perkins ruled that Preserve Flagler Beach, a group of Flagler Beach and John Anderson Highway residents who organized with a board of directors and members to oppose the project as submitted, did not have standing to file a lawsuit, and that the commission had properly applied the language of its Land Development Code. The appeal contests both counts.

Notably, Perkins noted in his ruling that the finding of no standing “did not affect the Court’s determination of whether [Preserve Flagler Beach] presented a sufficient basis for” a decision in its favor. In other words, he was noting that he’d have ruled the way he did even if Preserve had standing, based on his other findings: that the county commission provided due process, followed the law, and did so based on “competent substantial evidence.” (See Perkins’s decision here.)




The appeal was a brief matter of discussion at the County Commission meeting on Monday. “It concerns me that it sounds like it’s almost a delaying tactic on on the Preserve Flagler Beach Group when, when we already have a court decision,” said Commissioner Dave Sullivan, who was part of the 3-2 majority that approved the development at a contentious meeting almost a year ago. Sullivan’s district includes the area of The Gardens. He wondered about what sort of timeline the county and the developer, Palm Coast Intracoastal, both of whom are named defendants, are facing.

“What you’ve hit upon is the problem that all parties have when there’s an appeal,” County Attorney Al Hadeed said. At the appellate level, there’s no telling when the court will make its moves. But it’s laborious and can get complicated. The appellate court will next determine whether Preserve Flagler Beach will be granted time to file every document it wants to file. Assuming the court gives the go-ahead, which is likely, “from the time they file everything the court will review it to decide if there is a basis to trigger an appeal of the decision of Judge Perkins. I cannot tell you how long that timeline occurs. There’s no way to predict that. The orders just get issued from the court and we get them when we get them.” Often the court issues a one-line ruling affirming the lower court decision. It does not have to issue an decision lengthier than that.

Opposing parties get to submit their materials, but will not necessarily appear before the judges, unless the judges require it.

The Flagler Beach City Commission also opposed the development plans as submitted before the county commission last year, but the city is not a party to the lawsuit. Preserve Flagler Beach is asking for an extension as it awaits the transcript of the Aug. 31 hearing held before Perkins and prepares its brief.




In the last few months, Flagler Beach and Palm Coast have approved–or are in the process of approving–three adjoining and rather large developments not far from John Anderson Highway, on Roberts Road, that together combine for 569 single-family homes or apartments. None of the developments have drawn opposition.

The Gardens is a revived, so-called planned unit development that the county commission initially approved in 2005 when the land was owned by Bobby Ginn. Two years ago The Gardens projected a development of nearly 4,000 homes and apartments on the acreage. That drew sharp opposition. The project was scaled back. The opposition did not scale back proportionately, arguing that in its current form the development plans had to be re-submitted as a new planned unit development. If The Gardens were to do so, it would then kick off a very lengthy regulatory process.