In brief: A couple wants to build a home in Palm Coast Plantation that would partly violate an existing eagle-protection zone. The Flagler County Planning Board on Tuesday gave it the go-ahead, reasoning that the eagles haven’t been seen in the area for years, and that the protection zone should be scrapped anyway. But that may not have been the planning board’s call.
An eagle’s nest in Palm Coast Plantation that by all account has been vacated years ago has landed a pair of homeowners, their builder, Flagler County government, the governing board of Palm Coast Plantation, and environmental groups in a unique dilemma that has county officials worried about lawsuits and preparing to pass a resolution that would unilaterally remove an “eagle protection line” in that portion of the Plantation.
Tuesday evening, the Flagler County Planning Board did the County Commission one better. It voted 4-0 to do something that did not appear to be within its authority to do. It issued a “variance”–a permission to break existing land rules–by arbitrarily deciding that a long-established eagle-protection zone did not apply to a couple building a house in Plantation Bay. They could not only build their house, encroaching on the zone, but they could build a swimming pool, too, encroaching that much more.
It wouldn’t matter, the board found, since the eagle’s nest no longer exist. They appear to be right: the eagles are gone. But the rule is still on the books. All the other property owners in the area have been respecting it. The county itself, but for a mistake, has been requiring all builders and property owners to follow it. On Tuesday, the planning board decided the rule didn’t apply, if not without strong arguments that it should no longer apply.
The case of the ghostly eagles is illustrative of strong and well-intentioned environmental protections that sometimes outlast their purpose, impeding property owners’ right to do with their property as they wish while creating inequities between neighbors, all of whom so far respected environmental restrictions newcomers now want to be exempt from.
Last August Janine and Sebastian d’Amato decided they’d had enough of New Jersey. They bought the quarter acre lot at 218 South Riverwalk Drive in Palm Coast plantation, right by the Intracoastal, for $94,000. They hired a builder, Saltwater Homes, and commissioned a 4,000 square foot home. Saltwater got a building permit through the county on May 18 and got to work. It didn’t get too far past the clearing of the lot: crews put down board for the pouring of the concrete slab, but the slab had not been poured by the time the county discovered it had made a serious error.
Though it had done things correctly before, the county realized that the rear of the property extends into the so-called Eagle Protection Zone Line: an eagle had nested there in the past, necessitating that line in accordance and environmental rules. The line was not a whim: it was the result of consultation between the county, the local Audubon group, the U.S. Fish and Wildlife Service and the Florida Fish and Wildlife Conservation Commission’s staff. The line extends in a radius of 750 feet from the nest. No construction may take place in that zone. The plans for the home encroached into that zone. A planned swimming pool would encroach even more. “So we’re not going beyond the eagle zone, we’re going well beyond it,” Adam Mengel, the county’s planning director, said. “This will be the first pool that we’ve had in the area. Because of the eagle protection zone nobody’s put a pool there.”
Here’s the problem: the county had already approved the building permit. The county had enabled the violation, not the builder or the property owner. “There is no explanation of what occurred as part of the staff review that allowed the permit to be issued,” a county summary of the issue states, even as other homes had been permitted, including two this year, with restrictions on how far the concrete could go, so as to respect the eagle line. “The issuance of the building permit with the encroachment was a staff error,” the county found. That staffer is no longer with the county. “With all that in mind, we made the error,” Mengel said.
To overcome the eagle line, the county concluded it would have to have the consent of 157 other lot owners, because it’s a change that affects each of their property rights. The language is embedded in platting documents.
So Mengle came up with a solution. The minimum setback for a single-family house on South Riverwalk is 25 feet for the front yard, in compliance with the Palm Coast Plantation Planned Unit Development agreement, adopted as a county ordinance. Palm Coast Plantation’s own covenant and restrictions reflects the same rule. Mengle’s proposal was for the county planning board to issue a variance, shifting some of the construction 15 feet closer to the street. It would not eliminate encroachment. It would merely reduce its impact.
But the owners want to continue building the house as is, with the encroachment already in place–even after the variance is granted–and also build the swimming pool, even though they have not yet applied for a permit for that pool. The owners’ view is that since the eagle’s nest is vacant, the eagle line is no longer applicable.
They have a point, and the county sees their point. But nothing formal has been filed to formalize the point.
“I saw emails from FWC saying that they have reviewed all the evidence submitted by the Audubon Society and from best they can determine, the eagles are no longer there,” Sean Moylan, the assistant county attorney, said, referring to the Florida Fish and Wildlife Conservation Commission. “They have relocated somewhere else and no one as far as I know disputes that the eagles are now gone. They have been gone for years. And so we were trying to figure out a way to solve this issue where people’s properties are unfairly encumbered by an arbitrary standard that should no longer apply. The FWC at the same time was telling us, ‘We don’t really issue official determinations or some sort of certification that the eagle is gone.’ They’re like, yeah, it’s gone. But we don’t have some document that we issued for that purpose. So it seemed like we’re in this arbitrary process. And we needed to come up with a solution.”
Aside rom the variance, Moylan and Mengel are submitting a resolution to the County Commission on Monday that, if approved, would unilaterally remove the eagle line and potentially render the whole issue moot. (How that resolution would affect the language in platting documents is unclear.)
But the variance Mengel was proposing to the county planning board Tuesday evening did not at all sit well with residents of Palm Coast Plantation or the chairman of its Architectural Review Committee: they did not want to see a single house 15 feet closer to the street.
Mike d’Amato, the chairman of the Palm Coast Plantation Architecture Review Committee (he is not related to the owners of the property in question, who have the same name), told the planning board that the one thing the committee would reject is a house built closer to the street. “The minimum setback in Palm Coast Plantation is 25 feet. And that’s in our governing documents,” he said. “That’s what everything has been based on the whole time, and we have issued some variances but nothing short of the 25 feet.” He added: “They would hang us.”
He said the solution is in pushing back or eliminating the eagle line. (There are eagles on Herron Drive, which parallels South River to the west, he said, but on South River, even the trees were uprooted by recent storms.) He wasn’t blaming anyone for the mistake. “We missed it at the ARC, the builder missed it, the county missed it, we all missed it,” d’Amato said.
A resident of Palm Coast Plantation who is a builder placed the responsibility for the mistake on the builder. “The fact that they have all their boards up, and if they have to modify the house to do it, that’s the builder’s responsibility,” he said. “It’s not your fault. It’s not the county’s fault. It’s not the ARC’s fault. if I build something that went past engineering in the building department and my plans were approved, and I built something that wasn’t code, the building department would make me take it down.” He nothing other than some boards have been built. Another property owner–a neighbor of the property in question–echoed the builder’s perspective. He asked that the variance be denied.
Moving ahead with the variance could lead to a lawsuit from Palm Coast Plantation. Not moving ahead with a variance could lead to a lawsuit from the property owners. Mengel was trying to avoid both. He wanted to ensure that “if inevitably, we went to court, that if I could then answer in a straight face response back to a judge, whoever is asking me, did you do everything possible?” Mengel wants to be able to say yes.
In the end, the planning board was spooked more by the prospect of a lawsuit from Palm Coast Plantation than by whatever legal entanglements it may have provoked by ignoring the county’s own eagle protection line, figuring that if the county commission may well repeal the line unilaterally, the planning board’s rear is covered.
Eagles, meanwhile, are no longer endangered: “While no longer listed under the U.S. Endangered Species Act or the Florida Endangered and Threatened Species rules, bald eagles remain protected by both the state eagle rule (68A-16.002, F.A.C.) and federal law,” according to the Florida Fish and Wildlife Conservation Commission.