Last Updated: 5:44 p.m.
For years Palm Coast has had an ordinance giving it authority to control where and when burning takes place, including on vast lands cleared for development. Or so the city thought. The city’s ordinance conflicts with state law, which city officials say reserves that authority exclusively to the Florida Forest Service.
On Tuesday, the City Council was to approve a revised ordinance that would bring the city in compliance with state law. It would also surrender all authority of controlling burn piles to the Forest Service. The council tabled the ordinance at Council member Theresa Pontieri’s request. Pontieri is not satisfied with surrendering all local authority.
“I just want to get an Attorney General opinion as to whether or not there’s regulatory steps that the city can take, as long as they don’t contradict” state law, she said. The rest of the council agreed. The ordinance was tabled and Marcus Duffy, the city attorney, directed to draft that request. An Attorney General opinion is an interpretation of law that, unless challenged in court, has the equivalent authority of law. But it is not clear to what extent Palm Coast could carve out regulatory steps that would not conflict with existing law pre-empting local control on burn piles. The pre-emption favors developers at the expense of local control.
But a statement on the Florida Department of Environmental Protection’s web page on open burning appears to contradict the city’s contention that it is largely powerless while supporting Pontieri’s search for stronger regulation. “Local governments (counties and municipalities) may also have regulations on open burning,” DEP states. “County and municipal ordinances may include more stringent requirements for open burning or may ban open burning outright.”
As development has exploded, especially on larger tracts, burn piles have been a recurrent irritant to residents, not just in in Palm Coast. “We receive very few complaints from the public, and almost all of them are related to this issue,” Fire Chief Kyle Berryhill said.
“This is just developers being cheap. They cut down the trees and harvest them, and then they stump it out and just burn the stumps. They can easily pay these trucks,” George Mayo, a local resident, told the council. Developers have two options: to burn in place what felled timber they’ve not sold, or to truck it off site. Burning in place is cheaper.
The city has a long history of wildfire, though none too serious since the last grave burst in 2011. “So our residents are right to have this concern when they smell smoke or see smoke,” Berryhill said. “For the residents that have been here, they are right to alert us and say, Hey, do we know what’s going on here?”
According to the city, the Florida Forest Service has exclusive authority to issue permits for pile burning, though it may delegate that authority to the city, as long as the city follows state law. “Our ordinance, for whatever reason, was drafted in a way that’s non compliant with state statute,” Berryhill said. So Palm Coast had to change its ordinance. The proposed ordinance–not yet approved–takes away the authority of the city’s fire marshal to issue pile burning permits and surrenders that authority to the Florida Forest Service. The city previously could have an application process and fee for open-burning permits, setting out the number of days when burning would take place. That was eliminated.
Ceremonial fires, commercial land clearing operations and campfires, which the fire marshal could have previously permitted, are now barred, though “Outdoor fireplaces, kilns, ovens,” outdoor cooking fires and warming fires at work sites when the temperature falls below 45 degrees are not prohibited and do not require permits.
“They are the only ones that are allowed to give a permit for that thing, and also they are the only ones that are allowed to not give a permit,” City Attorney Marcus Duffy said. “The city is not allowed to say, Hey, if you would like to have a permit for pile burning, you have to get approval from us.”
Not that the fire chief is pushing for the responsibility. He cautioned the council: “Even if they were to delegate this authority to us, we would continue to have to follow the rules that the Florida Forest Service follows, except that we would have to increase our capacity tremendously to be able to do the job that they’re doing, and it would be a tremendous added cost and responsibility for something that the Florida Forest Service is doing a great job with today. When we have issues, we lobby them to make adjustments, and they’re as responsive as possible.”
Meanwhile, it’s not as if the city has no role. “We visit those sites. Our battalion chief spent a lot of time in the Matanzas area this summer,” Berryhill said. “We continue to check on the burn that’s going on off of Royal Palms. And so we’re very aware of where these things are going. We’re checking on the residents in these neighborhoods.”
Pontieri wants to know if the city could regulate the permit once it is issued. No: that authority is not the city’s, Berryhill said. (Permits are issued on a daily basis, based on a variety of factors, including weather.) That leaves few options. While the city cannot have regulatory power over burn piles, Pontieri may be angling for a different approach: could the city simply ban burn piles?
Palm Coast Mayor David Alfin had two concerns. First, the attorney general would have to look at this from a statewide basis, with precedent in mind. Second, “I do find fault with a desire to move a problem to somebody else’s neighborhood or backyard, because that’s what this is all about if we ask for the Attorney General’s opinion. I mean, what we’re really trying to do is prevent this burning here, I understand that, but I feel badly that the end game in this is that our pile ends up in somebody else’s area, so it’s burnt there.”
In fact, Berryhill said, those issues do not apply. The pile either may be burnt in place or mulched and moved somewhere else–but not burnt there. In other words, it may not be moved to a different site for burning. That leaves pre-empting the burning issue with a ban on burning, which would please firefighters.
“From the fire department’s perspective, we would love to not ever have burning our city,” Berryhill said. The attorney general will have to decide whether that’s possible. But this attorney general–Ashley Moody–in this legislative and gubernatorial environment, where advantages generally go to developers, make allowances for such a ban unlikely.
“A next step that we could consider is lobbying Tallahassee for Home Rule relief,” Berryhill said. “If it’s our perspective that having a pile burn in the middle of our very residential suburban community doesn’t make sense, and shouldn’t make sense, the possibility for us to impact that would have to be a change to the current state statute.”
Darlene Shelley says
The City of Palm Coast needs to STOP catering to developers and big money fat cats and finally stand up to protect the safety, health, and welfare of the local residents! We have the right to clean air, clean water, and serenity in our own homes! Palm Coast City Council- ban pile burning and Flagler County Commissioners- ban touch and go training maneuvers at Flagler County Airport! These two simple changes will improve the quality of life for thousands of residents, prevent hundreds of pounds of lead from polluting our air and water, allow us to breathe clean air, and finally return peace to our neighborhoods.
The Sour Kraut says
Fixed the title for you:
Palm Coast Has No Control Over Land Cleared for Development.
Dennis C Rathsam says
Why should the residence,s in P/C have to put up with the stench of this burning? Globle warming my ass! You know why theres no control…… ITS CALLED PAYOHLA, when I was a kid! I thought we left this bullshit up north!
Thomas Allen says
Not sure who drafted the comment under the lead picture but the burning continues. I drove by there just yesterday and the smoke is still rising. And how do these developers get around all of the regulations that protect the wildlife?
Darlene Shelley says
Incorrect. The City can simply ban pile burning. This practice has no place in a densely popularity such as Palm Coast. No resident, student, or child should be forced to breathe in polluted smoky air. Period.
Celia Pugliese says
I totally agree with Darlene and Dennis here. Like I said in my 3 minutes in the 10/1 meeting I am with councilwoman Pontieri to go to the Attorney General for consideration as is our health affected and also high cost financially when the ash hits our pool screens pools. car s and house windows, by these greedy allowed parcel clearing burning in the middle of Palm Coast. First is a health issue and that is why the FL DEP/EPA agrees with us but no so Tallahassee Forestry always benefitting developers then is when I ask WHY are their developers pockets more important than our Floridians children, elderly and families health?
Scott Tucker says
The city commission has bent over backwards in changing the way things are done , no saving trees in developments, unregulated burning , stick built houses , zero lot lines. You all brought this upon yourselves through greed and corruption. Overbuilding , not enough police , fire and rescue , 2 hospitals that are in constant overflow. Let the citizens decide , this all started when you changed from Town of palm coast to city of palm coast.
FlaglerLive says
We also drove by yesterday–several times. No burning. But we’ll amend if we see or document a change.
The Sour Kraut says
My comment was meant to cast light on the fact that developers seems to control the city council.
Celia Pugliese says
They should change the development orders in the city when a developer completes it ,to read: All the parcel vegetation should be chipped and disposed/taken off sight. The word burning will not there so city will not be breaking any FL State Burning laws. That will resolve the problem without lawsuits but will take the city chief planner to redact it under council request,
Celia Pugliese says
Scott if we were still unincorporated (a county Town) will be in much worse shape now. This the reality of every dollar we pay in ad valorem the county gets .45 cents, PC only gets .23 cents and the rest goes to school and inland navigation, mosquito control etc. We are still over paying this county for giving the city about 20 percent of the services only, when PC has to boot 80 percent of the services.
Moma .is says
It’s about time someone addressed this situation. I only wrote the city a month ago. It’s a sad thing when I can’t even go outdoors and walk my dog or enjoy my pool.
Palm Coast government act like they don’t know what’s going on. Anyone driving down Royal Palms with half a brain knows it’s wrong. They just choose to ignore it! I guess they don’t care if they have another fire like 1998. They certainly don’t are about the residents. Vote the lot of them out or we won’t see any progress on the issues we care about.
Celia Pugliese says
You are correct Darlene. The city planning Department should change the developer orders to read “all parcel clearing vegetation should be chipped on site and taken away” as the state law is about burning and the city will not use the word burning. This takes the council to instruct the city chief planner to place it in the the Development Order. That will resolve the issue.
Jeff says
The burning hasn’t stopped. It’s not as bad as last summer, but if you travel Royal Palms and Town Center you know it. For it to go on for months is pretty ridiculous and for the city to just say they can’t control it is even more so. Just another example of the big developer tail wagging the city dog. Whatever they want they seem to get. Meanwhile the lack of a stoplight at Royal Palms and Town Center continues to cause frequent backups and potentially dangerous situations before any homes are built there. I guess they’re waiting for complete gridlock to do something about it.
Hammerhead says
First off that’s the best way to do it Second it prevents illegal dumping of debris it’s a rich soil emolsifirer and the county makes money off the whole process start to finish. It’s called tax revenue now and later.Once again a female in charge with no logic just emotional response.And probably a dam Yankee bringing there crap south.They burn in Florida all the time don’t like it leave!!!!
Joseph Barand says
The Fire Department should tell all developers we will not respond to any fires you start, so in order to granted a permit to clear land you must provide the city with a $5 Billion insurance policy.
Chris says
Get someone to do air quality samples around the sites. Once the results are in send a copy to the EPA and get an attorney to sue the city.
Erin Brokovich
It will continue to happen until enough people get involved.
DM says
Chipped on site. Then the complaint will be the noise from the chipper.
Mark says
I’d even be for chipping it on site then using the chips in our parkways.
Celia Pugliese says
FL EPA and DEP are in our side regarding the burning they give the cities the right to create an ordinance stopping burning within city limits but the bug wigs in Tallahassee command the FL Forestry to protect developers right to burn and are head on with EPA and DEP. So best way is to gave in our “Developer Orders the wording of all vegetation chipped on sight re used or shipped away”…no word of burning so no FL laws broken then. City council can command chief planner to do…(thou probably he will refuse over some excuse).
Celia Pugliese says
Hammerhead! What a crass, disrespectful and derogatory reply yours and as usual probably initiated by a developer, associate or contractor benefitted hiding and behind an alias. Cowards without a good set punching from the dark, funding dark monies to their minion candidates (Werner/Miller) and giving a bad name to Southerners! Idiots still living in the civil war mindset. You move off your burrow! Too bad for you and yours that is nothing you can do, as we all live in the USA and we can move as we please… get out of our “wave” because we are coming and we will continue our pleads when our health safety and quality of life is a stake over greedy profit! Thank you Darlene Shelley for your realistic description and courage do not mind the local Nazis innuendos.