As the Veranda Bay development on the outskirts of Flagler Beach nears another attempt at annexation into the city, county government is throwing two new, seemingly contradictory wrinkles in the mix: a new, legal obstacle to annexation, and a hail Mary pitch to acquire over 200 flood-plain acres from the developer to protect Bulow Creek and minimize construction in flood zones.
It’s not clear how raising a legal issue against the developer could win his support for a land sale.
A year ago the annexation of the 900-acre Veranda Bay development into Flagler Beach appeared close to ratification when it was derailed by the threat of a lawsuit. Annexation would create a county “enclave” of a handful of property owners, violating state law, opponents of the plan argued in their latest attempt to stop the development.
Flagler Beach government halted the process. Veranda Bay reconfigured its plan and submitted it last month as two projects: Veranda Bay and Summertown, totaling 2,230 housing units on 756 acres on the two sides of John Anderson Highway, but leaving out the contested “enclave.”
The Flagler Beach Planning Board last year had recommended approval of the full, original annexation. Last month, its membership very different, the board narrowly voted against recommendation of the scaled back annexation. The proposal goes before the Flagler Beach City Commission on Nov. 13.
But there’s a new obstacle.
“We have not received a clear response yet from the city as to the statutory requirements for annexation, that all owners have signed petitions requesting the annexation there,” County Attorney Michael Rodriguez told the County Commission this morning.
Flagler Beach was under the impression that the landowner and developer could make that request, not individual homeowners. That’s not the case. An Attorney General’s opinion and case law provide that “you don’t get an association to sign on your behalf,” Rodriguez said.
He was referring to a 2007 Flagler County-related opinion issued in response to a question by Dennis Bayer, then and now the town attorney for Marineland, who asked about annexing acreage there, involving a condominium association. “When a condominium petitions to annex into a piece of property, the condominium association is not the applicant,” Rodriguez said. “Every individual condominium owner has to sign, and if one owner doesn’t sign, the annexation does not go forward. So that would apply here as well. So if you have one property owner who refuses to sign a petition or does not sign the petition, then that cannot go forward–if that one property owner’s lot ends up creating an enclave.”
In other words, Veranda Bay’s own residents could end up creating their own enclave, putting the development right back where it was a year ago, when the threat of a lawsuit derailed its larger annexation.
Veranda Bay, separate from Summertown, now consists of 211 acres on the east side of John Anderson Highway, south of State Road 100, with 122 lots already built and many inhabited.
The Flagler Beach City Commission is considering the annexation petition on first reading Thursday. The petition must win majorities in two readings to be enacted. “If they adopt the ordinance, then it would be up to this commission to challenge that adoption of that ordinance in circuit court,” Rodriguez said.
The city commission may still adopt the ordinance on first reading, but would have to secure the necessary signatures from homeowners before second reading to avoid a challenge.
“Game on,” County Commissioner Leann Pennington said. “I don’t think we’re fully on board with annexation, with the numbers that they’re projecting over there,” she’d said earlier in the meeting.
It is the first time that county officials have raised the prospect of the county legally challenging the annexation, as opposed to individual homeowners or a group like Preserve Flagler Beach & Bulow Creek, the non-profit that has long opposed Veranda Bay, and that filed its intent to sue if the 2024 annexation plan went forward.
The county meanwhile has met with Ken Belshe, who represents Veranda Bay and Summertown regarding the potential acquisition by the county of environmentally sensitive lands along Bulow Creek, presumably using the county’s Environmentally Sensitive Lands program dollars. (ESL dollars are drawn from a dedicated property surtax voters approved.) But the prospects of buying land there are low, much as the county would like to.
“Especially the west edge of the development,” County Commissioner Greg Hansen said. “I think that’s too close to [Bulow] creek. And if they’re going to develop that, we need to put in a substantial buffer between the park and the creek and whatever he’s going to do up there. So, best of all worlds, we buy that piece of land. But I don’t think that’s in the offing. Too expensive, and it’s not for sale.”
County Administrator Heidi Petito said there’d been some “behind-the-scenes” discussions looking at North Florida Land Trust as a potential source of money, in addition to the county’s ESL funds, as well as Florida Forever, the state’s Wildlife Corridor and the St. Johns River Water Management District. “But as far as finalizing any sort of acquisition through the developer. Now, we have not been successful with that yet,” Petito said.
For as long as Veranda Bay and its predecessor, The Gardens, has been going through regulatory steps (starting in 2019) Commission Chair Andy Dance has been concerned about protecting the headwaters of Bulow Creek (he has a personal attachment to the area, going back to his childhood here). He met with Belshe and Belshe’s attorney, Michael Chiumento, and came away with possibilities. Dance was seeking his colleague’s approval for the administration to continue down that path. He got it.
“In correspondence, the door is not closed,” Dance said. “He’s open to that as a negotiation. I don’t think by any means we’re there. My ask was 100 percent of the floodplain be retained, which is about 215 acres, and that kind of spurred some conversation, which is why we just want to have the public discussion here about getting some of the other agencies involved.”
County Commissioner Kim Carney called it “the 23rd hour,” and was skeptical of any such move. “I don’t think you have a willing seller,” she said. “Being in real estate, you can’t move forward without a willing seller. Are we going to throw a number out there? We haven’t even vetted that land in our environmentally sensitive land system. I think Mrs. Petito needs to explain to the city that we have a process, and we can’t even get to our process. So I don’t know. I wish them luck. I’m not convinced we have a seller.”
Keep Flagler Beautiful says
The Veranda Bay development was a massive mistake. I feel sorry for the uninformed people from Northeastern and other states who bought houses there. To even consider the idea of building on the Bulow Creek flood plain would start a marathon of lawsuits from bordering neighborhoods that overnight would go from X (no-flood) zones to sitting ducks. There should be NO new building at the lower end of Flagler Beach or southern end of Flagler County east of I-95. Zero.
Oh My My My says
Come on Kim, think positive about the acquisition !
Unless you don’t care to help your district hold on to the last piece of precious land that WON’T BE DESTROYED & DEVELOPED.
Come on Mr. Belshe, be THE HERO & let this land be preserved.
You have several other developments going on within the 5 mile radius of this one.
Don’t be greedy, you’re making lots of money on those.
After almost 7 years of this, aren’t you tired of kicking the can down the road…?
Rizzo says
Hey Flagler County ( Commissioners & Admin) stop buying property and buildings and use that money to pay your hard working employees that can’t get a decent raise and had a 4% COLA raise cut to a 2% because we needed beach sand. Priorities are screwed up!!!