Conservation in Contempt: How Palm Coast Opened the Way to Urbanizing Bulow Creek

You don’t have to go far to see a ghost town in Flagler County. Drive down Old Kings Road south of State Road 100, a few hundred yards past the dump. You’ll notice a paved road to your left. It’s the nearly decade-old Flagler Beach Polo Club, which has as little to do with Flagler Beach as it does polo. The County Commission approved the development in early 2003 as an example of sound development despite its plan to carve out 40 lots for big, expensive homes on 5 to 20-acre sites over 200 acres between Bulow Creek and the Intracoastal waterway, with an equestrian trail linking the community. It won approval at the front end of the housing boom. It should have boomed. It didn’t. Today, the roads are there, the street signs are up, the lot numbers are planted, but just one home has been built. It’s empty. The Flagler Beach Polo Club is not even a one-horse community.

Just north of it, on both sides of Old Kings Road, the Bulow Creek company wants to plant 2,500 homes of various sizes on 797 acres, including all sorts of commercial and industrial developments on 2.5 million square feet within that acreage. The land fell outside Palm Coast city limits until three years ago. It was zoned for timber and agricultural uses. Any development was limited to one unit per five acre, as in the Polo Club ghost town. Palm Coast annexed it. When a city annexes land, it has no choice but to assign it the city’s own zoning designation.

Last week, the Palm Coast administration told the city council that it was time to do that. There’s no absolute rule that the city had to change the designation then and there. Nor is there a rule that says the city has to change the designation to enable higher intensity development on its newly incorporated acreage. And there’s certainly no need for additional housing or commercial development in what’s become one of the hardest-hit, housing-busted cities in the country.

But there is a developer who wants the designation changed to the maximum allowable density possible, even though we’re talking about the Bulow Creek area, whose creek has been designated an Outstanding Florida Water, and whose surroundings are among Flagler County’s most sensitive and, if you’re an animal, ecologically critical habitats.

And there is the matter of Amendment 4 on November’s ballot. That’s the so-called “Hometown Democracy” amendment that, if it passes, would require all changes to a local government’s “comprehensive plan” (the overall blueprint that defines how and where a local government grows or conserves) to be approved by ballot—not by the vote of a city council or a county commission. So there’s a mad rush on to get all those amendments to comprehensive plans through before the proposed amendment has a chance to kick in.

Politely, deliberately and with manipulative mastery, that mad rush was on display last week when the Palm Coast City Council, in a 4-1 vote, approved the land use change that will enable building 2,500 homes instead of 129 under the old designation. The vote came at the end of a dance of disingenuous steps, half-truths and preposterous speculation, such as the city administration’s claim—by Senior Planner Jose Papa—that while Palm Coast will be at a near-even point between housing supply and demand in 2035, it needs to provide 25 percent more of a supply (in actual or planned homes) than the existing population requires in order to fall within a recommendation from the state Department of Community Affairs (DCA) for housing-to-population ratios. If so, it’s about the only recommendation from DCA that the city administration was willing to respect. At other times, Papa visibly snickered and derided DCA’s recommendations regarding the land-use designation in question, which has already gone through DCA’s vetting.

DCA recommended against the land-use change as proposed by Palm Coast, saying, over several objections, that the change was inconsistent with Palm Coast’s own land-use policies, that land around Bulow Creek was too sensitive to support high-density development, that development should be limited to the land only west of Old Kings Road, and that there was no analysis proving the need for so much new housing, among other objections. (The city is projecting a Palm Coast population of 168,000 in 25 years, which would more than double the present population. The estimate is based on boom trends, not post-boom realities, which have collapsed all previous speculations—about housing, investments and population projections.)

The city council approved the land-use change anyway, claiming that all it was doing was just that, changing a designation, not approving a development order that would translate into actual homes sprouting up. “You are required to designate this property,” City Manager Jim Landon told the council. “City council just to say no, is not an option, because it currently has a county land use designation which doesn’t mean anything in our world of land use. So this is actually the first step that we have to change it to a city designation. Does it have to be mixed use? No. But we do have to give it a city designation.” And he added this: “We’re not here talking about details tonight. We’re talking about very general terms.”

“All we’re doing is changing what Flagler County had designated it to Palm Coast designations. That is basically all we’re doing,” council member Mary DiStefano said. “Anything else you want to do with that land has to go through the process of coming back to council.”

Landon and DiStefano were right. But what neither said, though the council didn’t need to be educated on the matter since it’s a veteran council that knew what it was doing at every step, is that last week’s land-use amendment to the city’s comprehensive plan is the most important step in any attempt to maintain a local government’s widest control over acreage even when it’s owned by someone else. Palm Coast was not required to change the land use designation to the highest intensity possible. It could very well have changed it to conservation, which would have preserved the land in perpetuity. It could have decided to split the land use designation in half: conservation or low-density uses east of Old Kings Road, along Bulow Creek, and high density west of Old Kings Road, where no one really care whether it’s high density or not: that land is literally used by a dump, it is paralleled by I-95, and if there’s any place fit for high density development, that’s it.

The council could have done that. It was entirely up to it, because at the time of a land-use change, the burden is on property owners and developers to prove to a local government why they need to have their zoning designations changed. But the moment a zoning designation is changed, especially to the highest density allowable, there’s a switch. The burden shifts to the city to prove to a property owner why he may not build the way he wants to, where he wants to, within the boundaries of land he owns under the city’s new land-use designation.

That’s what Palm Coast did last week: it gave up that leverage under the mask of “only” conducting a land-use amendment. But Landon was right when he spoke of the many times in the future when the land developer will come before the city council again, making detailed development proposals and enabling the council to get into those details. But that’s all it’ll be: details. The fate of the Bulow Creek area is set. And it’s set in the stone, or rather the concrete and asphalt, of high-intensity development. What the city may not do at this point is revert back to a lower-density designation and deny the developer his development rights.

The city can very well oppose specific development plans, even to the point of opposing the number of units a developer is proposing. But at that point the city becomes vulnerable to legal challenges. Hardly any local government is willing to expose itself to those legal challenges. Palm Coast least of all: this is a development-minded town. It hired Landon because of his development expertise as a manager. It annexed the Bulow Creek area because it wanted to develop it, not plant flowers and shrines to history there. Palm Coast wants the tax base. And it’s mad-dashing after it.

Residents in the South Old Kings Road area weren’t deceived. Don White ridiculed the population projections suggesting a need for more housing. “The old model of build it and they’ll come, has failed miserably here,” White said. “Evidence of that is all around us and we live daily with consequences of it. It’s not likely to be any different in the future.” Jane Gentile Youd sounded like Joy Behar in one of her more flustered moments on “The View”: “That’s going to be a lot more people to enforce your new dog ordinance,” she said, referring to the more 6,000 people expected from the new development. “I don’t mean to be facetious. And 2.5 million square feet of commercial space. In none of this blah blah nauseating stuff did I hear any of 2,500,000 square foot of commercial space.” Michael Duggins derided the city staff’s responses to the Department of Community Affairs’ objections,  pointing out how, in one example, “Instead of providing for the possibility of scrub jays, the city deleted the related policy entirely.”

In conjunction with the land-use change, the city enacted 21 brief policies designed to show the city’s intention to stay on top of the developer and box him into municipal requirements to mitigate the more blatant effect of high-intensity development. The policies were designed in part to enable the city to say that it had addressed the state’s objections. But Duggins was right: one of the policies eliminates concern for the scrub jay, while other policies more specifically  set out goals and limits, such as the maximum 2,500 dwellings. But unlike a land-use change, city policies don’t have to be vetted by the state. Nor do they have to stay on the books. They can be changed at any time in the future.

Michael Chiumento III, the lawyer representing the land owner making the request to high-density use, said there are no plans to build at the moment. As he explained to the council that it’ll have other opportunities to affect the area’s development, he hinted at the landowner’s strategy: “These things will come back two or three times before you before any permit is given to a developer, whether it’s us or anybody else.” In other words, it may not be the Bulow Creek company coming before the council in the future with development orders, though the company’s securing of a high-density land-use designation means it has just made its property that much more marketable—and profitable, if it finds a buyer willing to develop.

Meanwhile, Chiumento and the city administration, whose words and tactics were interchangeable, presented the developer’s plans in terms fit for model conservation. “As part of their request, they’re requesting to limit the number of development within this area to 2,500 dwelling units and 2.5 million square feet of non-residential,” Papa said of the developer, as if the request was to “limit” development rather than up it to 2,500 homes. The developer is proposing to designate two enclaves as conservation, but it’s a net loss, from 154 acres in conservation under the county designation to 122 acres under the city designation.

That acreage includes the floodplain to Bulow Creek. But that’s a meaningless designation: it would be “conservation” anyway, because developers can’t build in a flood plain. They know it. They also know that adding acreage to conservation makes them look good. In addition, 71 acres are designated “greenbelt.” Don’t be fooled by the designation: the developer can still build in greenbelt zones, and the development intensity is five times higher under the greenbelt designation than it was under its previous, agricultural designation. This developer is pledging to use the greenbelt designation to “improve” the archeological and educational value of the land, rather than build it up. The land includes a midden.

Mayor Jon Netts was more than skeptical at that line of thinking, which he took on, speaking to Chiumento.

“The last time I heard this, I raised the issue about this property, and now you’re suggesting that instead of conservation, that it become greenbelt. And the justification I heard is that—and Mr. Papa used the word we, I think he means you, because we to me means the city—that you can enhance this property. How do you enhance a midden? You put more garbage in it? I’m not being facecious. How do you enhance that?”

Chiumento: “Well, you add protection.”

Netts: “If it’s in conservation, doesn’t that give it the ultimate protection?”

Chiumento: “Well, you can’t improve it, you can’t add protections.”

Netts: “Wait a minute. You can’t improve it in conservation. That, I understand. But if it’s conservation, isn’t that the highest level of protection you can give?” (DiStefano laughs at that one.)

Chiumento: “I believe so, yes.”

Netts: “OK, so, this going to greenbelt doesn’t enhance the protection or the preservation. It maybe allows you to enhance it. But I’m just curious to know what kind of enhancements you might give to those archeological sites.”

At that point, Chiumento deferred to a consultant, Ryan Carter, whose St. Augustine consulting firm, despite its green-sounding name (Natural Resource Consultants) is associated with builders, Realtors and chambers of commerce and specializes in securing development permits, not protecting land. Carter spoke about various amenities that could be added to historical educational sites.

When it was council member Frank Meeker’s turn to make the point that, in his view, there was no reason to object to the land-use designation, he grilled Papa about other agencies’ objections: Did the county object? Did the water management district object? Did the Department of Environmental Protection? The school board? The Corps of Engineer? At every turn, Papa said no.

It was a clever bit of theater, and entirely meaningless for two reasons. Just about every agency Meeker had mentioned (with the exception of the Corps) had raised objections in writing. They were all part of the Department of Community Affairs’ response to Palm Coast’s initial “transmittal” (that’s lingo for “submission”) of its first request for a land-use designation change last year. All those agencies may raise objections again. None, with the exception of the school board, will do it through the Palm Coast city administration, however. They’ll do it when DCA reviews the second submission of the land-use change. At that point, they may well raise further objections.

The irony is that  at a council meeting where council members are supposed to raise questions and, possibly, objections of their own, Meeker, DiStefano and Bill Lewis looked intent on doing little more than dotting a few t’s rather than raise issues, as Netts did. (Council member Holsey Moorman was silent throughout.)

“I’ve said a number of times, we don’t need any more rooftops. Certainly not now,” Netts said. “Certainly not now, and I’ll leave the door open for 2035. I don’t know how many tornadoes you’re going to get in the Midwest and how many more floods you’re going to get in New York, New Jersey and Connecticut, I don’t know how many people are going to be moving down here. I would hope that we’re not going to build a lot of houses that we can’t occupy. I would hope that we don’t built a lot of stores that can’t support their retail establishment.” He had no issue with intense development west of Old Kings Road. But he didn’t approve of plans for the Bulow Creek area.

Netts was the only dissenter in the 4-1 vote opening the Bulow Creek area to intense development.

“We know the sensitivity with the Bulow Creek area,” Landon said, “and I think that’s what we’ve tried to do, is not leave it wide open but try to keep that door fairly narrow.” The door-stop, however, has moved from the city’s control to the developer’s.