The Palm Coast City Council on Wednesday got warning from a developer that the city may soon face a lawsuit to make up for over $12 million in estimated losses from a council decision to limit a development to less than half the housing units applied for.
The developer, Byrndog PCP LC, submitted a claim to the city under the so-called Bert Harris Act, a state law that under certain circumstances enables financial compensation to developers who can prove that government has infringed their development and property rights. Developers are required to file such a claim before filing suit, giving the local government a chance to negotiate a resolution.
On this date a year ago, the Palm Coast City Council voted 3-1 to approve a subdivision of 416 single-family homes in a 375-acre development called Cascades near the south end of Seminole Woods Boulevard. The approval was for less than half the 850 units the developer had applied for, with apartments making up the balance of the units, now lost.
Only two months earlier the council on the strength of 4-1 votes had approved all 850 units in the rezoning application’s first reading. The public outcry was swift and furious. It largely focused on the apartment component in a city where a prejudice against apartment complexes near single-family residential zones has often resembled racial red-lining of old.
There would be additional aftershocks as the developer asked and got a re-hearing. That January hearing was noisier than its November kin. The outcome was no different, with Council member Theresa Pontieri, the chief opposition to the larger number of units, dueling with Byrndog attorney Michael Chiumento, just as she had dueled in November with Jeff Douglas, the developer.
“As the ordinance acknowledges, the limit of 416 dwelling units is a change from the Comprehensive Plan amendment as applied for and initially approved (and as recommended for approval by City Staff), establishing Byrndog’s entitlement to 850 dwelling units on the Property,” Steven Gieseler, the attorney filing the Bert-Harris claim on behalf of Byrndog, wrote Mayor David Alfin in a letter dated Nov. 6. (The attorney is from the Tampa-based Bartlett Loeb law firm.)
“The imposition of the 416 dwelling unit limit was a result not of considered expert review, nor of collaborative policy-making with Byrndog; rather, this unreasonable limit was concocted and first revealed at a public hearing as a result of (ostensible) political pressure seemingly invited and instigated by certain members of the City Council.”
Using the language common in property-right legalese, the attorney noted that the 850-unit was not the “highest and best use of the property to which Byrndog was entitled” when it was annexed into Palm Coast in 2023, but that Byrndog had consented to the cap in negotiations with the city. Based on the city’s assurance that “no limit lower than 850 dwelling units would be imposed,” Byrndog agreed to the annexation.
While city staff may make certain assurances to a developer, those assurances are not binding or immovable since city staff are not the policy-makers: the council is, and only the council’s ultimate decision carries. The Cascades development had been permitted as far back as 2005 as a planned unit development when it went through the county’s regulatory process. But it cleared that process at the 416-home limit, which “certain members of the City Council” seized on again to insist on the limit.
To Byrndog, the city “has inordinately burdened Byrndog’s existing use of the Property and Byrndog’s vested right to a specific use of the Property under the plain language of the Harris Act,” limiting the company’s ability to benefit from its investment. The Gieseler letter includes an appraisal of the Cascade property and a calculation of dollars lost, at fair market value. That sum is “in excess” of $12.19 million, according to the appraisal.
Bert-Harris claims are rare. Cities an counties prefer to avoid them. The Legislature passed the Bert J. Harris, Jr., Private Property Rights Protection Act in 1995. It’s been amended twice since, in favor of property rights. In simple terms, it provides for potential compensation of property owners over lost property rights at a lower threshold than does the takings (or just compensation) clause of the Fifth Amendment.
Judging from precedents, Bert-Harris law is not settled. In 2009, the First District Court of Appeal in a Jacksonville case “found no case in which an appellate court has affirmed relief granted pursuant to the [a]ct.” According to a Florida Bar summary on Bert-Harris, “While the courts extended protection since then, cases continue to indicate that the courts conservatively construe the act so as not to expose local government to a massive amount of liability. There is new legislation and recent court cases that will have a significant effect on the way Harris Act claims are handled in the judicial system. In addition, despite the amendments and various court opinions regarding the act, there appears to be a great deal of ambiguity as to what is protected under the act, how it should be applied, and what exactly constitutes a vested right, an existing use, or an inordinate burden.”
I other words, a Bert-Harris action is serious and intimidating, but its outcome is not a given: the ongoing example of Flagler County’s case against the Old Dixie motel’s owners, while not a Bert-Harris matter, is still a big window into a local judge’s interpretation of property rights and his deference to local government prerogatives. Byrndog’s case against Palm Coast, if it is ultimately filed in circuit court, would be intricate, expensive and an additional headache for a city with a growing list of litigation on its plate, but its outcome is not foretold.
Later this month Pontieri will be the sole surviving council member still seated from the meetings resulting in the Byrndog conflict. Cathy Heighter resigned last August, Nick Klufas was term-limited and lost a bid for a County Commission seat, Ed Danko (who supported Byrndog’s position) lost his bid for a County Commission seat after one term on the council (the resign-to-run law prevented him from running to retain his council seat), and Alfin was defeated in the primary.
Alfin will be replaced by Mike Norris, who focused his campaign largely on opposition to development, if without specifics. Charles Gambaro, appointed to the council on the strength of its pro-development majority, has not yet shown his hand on such matters. Newly-elected Ty Miller is expected to be in line with the previous pro-development majority, while Ray Stevens at this point can be said to be neither pro nor anti-development, though like Norris, he is sharply skeptical about the city administration.
Robert says
Out go Alfin and his buddies over developing the City of PC to feed their own pockets. Thank God.
Annoyed Resident says
The city and people have spoken and voted to the 416 limit. Obviously JTL developers could care less how they are ruining Palm Coast. This area can’t handle an additional 1700 vehicles a day. Just another example of a greedy developer who can care less of the people!
Billy B says
Get ready to lose another case Palm Coast !!!
Nice Christmas Bonus says
From what I’ve just read, he does not meet the burden of proof for that particular Act. I’m a retired land use attorney. This seems more like an intimidation tactic that’s not intended to actually go to court. Some lawyer in Tampa is going to rack up the hours for a case that won’t go anywhere in court, particularly, against a government.
Fernando Melendez says
This is gmoratorium very costly decision that Palm Coast City Council made and now we the taxpayers will have to pay for it. When it comes to property rights do not infringe on anyone’s rights, you have to let development happen as it was planned for. It’s not like developers want to scare you into letting them have their way, there are laws, rules,and general development codes that were abided by and approved by our city to give the go ahead and then the city council blocked them from building their project. Now with a very inexperienced city council taking over and a bully of a loud mouth new mayor who isn’t qualified to not even be a dog catcher, I see nothing but law suits coming from developers especially if there’s any ridiculous talk of any moratorium on development we taxpayers will be on the hook.
Land of no turn signals says says
Someday developers won’t run the county.I guess maybe when there is not a single tree left.
Billy says
These developers have ruined palm coast and Seminole woods already. The newest one looks like a federal prison. There is so much traffic now, and our utilities are all maxed out sewage water, electric. Now all we have is a high traffic crime not a peaceful little town anymore definitely not an area to retire in as it was designed go be!
Kat says
Why do we have comprehensive plans in the first place? It seems like every developer asks for, and is granted, an exception or rezoning request. It also appears as if all of the developers are represented by Michael Chiumento. I was not a big fan of Theresa Ponteri given her history with the sheriffs department, but she seems to be sensitive to and responsive regarding the wishes of her constituents. That’s such a rare thing these days, it is much appreciated.
Now that Palm Coast and Flagler county have reasserted their devotion to the good old boys network, should we really expect anything to change? Seeing the picture of those beautiful woodlands and wetlands makes me so sad. Is all of the greenery in Palm Coast destined for development? We could have been the inspiration for Joni Mitchell’s big yellow taxi.
Joanne C says
Look at all that beautiful wooded land. Not for long, though. Flagler County will soon be denuded if something doesn’t change.
Sue says
416 homes is more than enuf for that area. I didnt realize Ty was pro development i wouldn’t have voted for him. Put a moratorium on any new construction until they get there infrastructure updated including roads!!
JimboXYZ says
The Mayor Alfin era of Palm Coast, Klufas (the Dufus/Doofus) too. How can we ever thank them for their service ? I wish they had been uncivil to each other in those council meetings and never approved any of it. Instead of approving pipe dream growth Visions of 2050, they would’ve cuffed & slapped, poked each other in the eyes like every 3 Stooges B&W comedy from the 1960’s had for comedy. It’s just not funny anymore, the last 4-5 years of this. The City of Palm Coast as a government could win the largest of Mega Millions lottery haul and they’d be short of what they expect taxpayers to pick up the tab for. The $ 240 million STF alone, would eat the lion’s share of those lottery winnings. And this crew was approving unfunded Biden-Harris build back better. Just look at the underfunded State grants. And Alfin ran for re-election on fiscal responsibility in 2024. When I read that spin on Facebook, my meal came back up from my stomach. I hope old Alfie reads this, is offended by it. Sometimes you have to be mean to the one’s that just don’t see, hear or get it. There was enough opposition to growth in their faces at these council meetings. It all fell on deaf ears, blind eyes. There’s that fine line between what can be handled well vs overextending & approving too much. No wonder they choked on eating that cow, you’re supposed to cut the cow into single serving steaks & cut it further up into chewable bites, assuming that you have any teeth to chew the bite sized chunk. Going to be interesting what Norris can do with the legacy fails of Alfin. Like Trump trying to fix Biden’s fails. I just see the same property flips of Bush 2001-2008, only this took 2021-2024. Similar inflation to Bush vs Biden (only Biden is worse) ? Apparently we haven’t learned from history.
Think about it, we have a property that in 4+ years can’t be demolished for a condemned US-1 Motel, yet somehow 100’s-1,000’s of acres of forests can be leveled to soil county wide. That’s what & Alfin & Company should’ve been made to prove that they could get that Motel demolished & whatever development that’s (n)ever going to become 1st before anything else was approved for ruination in the city limits of Palm Coast and boundaries of Flagler County. And Flagler Beach doesn’t get a pass for annexing John Anderson either, anything Flagler Beach was funded by the Federal Government over the past 4 years. Heck, they even found a way to botch Margaritaville for building height ordinance.
Cindy says
I caught the end of a news segment on click orlando last week having to do with the flooding from the last hurricane. I remember seeing and hearing Palm Oaks, Fl (not 100% of the name) but that city put a moratorium on any new construction for one year until they get there infrastructure and roads up to dated.
Bill says
Hey— here’s my suggestion: Completely cancel the development! That greedy developer can take his shovel and go ruin a community somewhere else!!!!! You wanna sue me (the citizens of PC). Then go ahead. We’ll work forever to block any development in that location! I seem to think there must be some rare bug or plant there that must be protected!!!!!!
Bill Lyon says
Mr, Melendez, ITT designed this city for 225,000 people and that design was approved by the State of Florida back in 1970 – 54 years ago. We currently have a population of about 110,000+/-. Don’t be surprised it our current population doubles from that of today – it was always planned to be so. Also – in order to keep residential taxes moderate, ITT also originally planned to bring in clean industies and designated space for such industry on the west side of US1. However, the County Council turned down ITT’s reqguests to bring in manuafactureres such as a plant to produce Mercedes parts. The county’s ‘s excuse was that our roads could not stand the traffic. Mercedes subsequently chose Alabama to build their new US plant. Today Alabama has Mercedes, Honda and Hundai plants and others that help pay residential taxes. Be careful about protesting logical and pre-planned growth – the end result is not necessarily good for our City nor our County.
pete says
Looks like a area that will collect water and flood,where is the water going to go.
Celia Pugliese says
I doubt is city will loose this case as there is no case here. They just won one and a developer already lost two cases against residents…
Celia Pugliese says
This time I have to disagree with you…Moratorium is not ridiculous and not a talk…but a needed reality planned by also Edgewater, Orlando and other Florida cities iver same reasons; flooding or traffic etc.
Tim says
While construction and growth can be good for everyone there should be common sense to it, suing the city is the same as suing the tax payers that is not good. Common sense says that infrastructure and jobs should be equal to development growth, you have to have roads that handle the increase in traffic and you have to have jobs that pay enough to purchase or rent the new development. $15.00 an hour jobs are 1970 wages that cannot compete with $2K rents and/or mortgage payments not to mention insurance, car loans, utilities and groceries that have sky rocketed. Many of us on Social Security with maybe a small savings account are equal to or less than $15.00 an hour. Ladies and gentlemen there are a lot of us out here struggling to keep up with expenses. Impact fees on new construction need to align with new road infrastructure, utilities and safety services to create a comfortable flow. While I can understand the developers wanting to make a huge profit many will build dump and run afterwards leaving the city and its tax payers hanging with the results. I’ve seen this too many times across the country. Suing the city should should not be an option period!
Celia Pugliese says
Tim you are correct for these developers: “Suing the city should should not be an option period!” But they do not care as they use for that share holders funds aka other peoples monies. Even if they loose over their wrong legal advisers, they will take it as a right off in their taxes. They being rules already by Judge France that First Amendment and AntiSlapp suits against our brave residents fighting for their quality of life, don’t work but their attorney advise them to appeal anyway: https://flaglerlive.com/bryan-arnoff-motion/ Where says that developers land owners have more rights to their lands that single family home lots do? This is what we are pressure, convinced, intimidates by some government administrators.
Emoji says
ITT designed this city?🦧
This wasn’t a city until the folks declared 🗣️🎙️📻📺it a city.🏙️
It was a golf 🏌️resort-retirement💤community.
vance hoffman says
Did this plan ever involve building a larger infrastructure? We don’t have the roads or schools.
Realistically speaking says
That area cannot handle 850 homes plain and simple! This developer could care less of ruining an area as long as he gets his greedy ways along with his lawyers as well. If you don’t like it pick up your trash and leave!