The Flagler County Commission at a minute after 11 p.m. Monday approved The Gardens development of 335 homes on the east side of John Anderson Highway in a 3-2 vote, with few conditions, possibly ending the developer’s nearly two-year, three-front battle with county regulators, Flagler Beach government and a community organization that had opposed the proposal. But opponents hinted at litigation several times.
“This is a big change for Flagler County,” Commissioner Greg Hansen said. “We’re making a decision here that’s going to have a large impact on our county.”
Commissioners Donald O’Brien, who made the motion for approval, Joe Mullins and Dave Sullivan voted for approval, five hours into the hearing. Greg Hansen and Charlie Ericksen voted against. Ericksen’s dissent, his last, capped eight years of service on the commission. His tenure ends today.
“This is difficult. There’s no doubt about it. It’s very hard, and I don’t want to lead the discussion here before the other commissioners have a chance to look at this,” Sullivan said before the vote. But there was little discussion: Sticking points remained at the heart of the discussion until almost the very last minute, some of them remaining unresolved, among them the developer’s responsibility to build a cross-over between the east and west sides of John Anderson. The county maintains that the cross-over must be an overpass or an underpass. The developer maintains that it “may” be built at street level, like a regular intersection, but that traffic is not an issue under current phase one plans.
The development plan, called a Planned Unit Development, is based on a 2005 agreement that cleared the county commission at the time. The agreement was with then-developer Bobby Ginn, when he owned the property. The developer considers that plan still in effect, so all he had to do, in his view, was get the commission’s approval for a somewhat more specific site development plan. Opponents sought to compel the developer to submit a new PUD. Aside from delaying the project, it would have reopened the regulatory process down to every detail of the proposed development.
“Does anyone really think this is the same project that Mr. Ginn got approved, battled really hard to get approved?” John Tanner, the attorney representing Preserve Flagler Beach and Bulow Creek, the grass-roots group. “Does this really look the same in any respect except geography of the property? That’s about the only resemblance. This is really different from what the planning department and the county commission in ‘05 agreed to.” Tanner had expert witnesses and individuals who sought standing to press opponents’ points, among them Barbara Revels, the former county commissioner, who cautioned against endangering property values as a consequence of the proposed development “if you do not keep the traffic off of John Anderson Highway.”
The list of conditions incorporated into the approval motion ostensibly includes resolving “outstanding staff technical comments,” specifying future development plans rather than leaving them vaguely marked as “reserved for future development,” securing utility agreements and whatever other conditions the commission deemed necessary.
A striking aspect of Monday’s vote was that aside from delineating the usage of future tracts, the commission, despite entreaties by Flagler Beach government and residents, added no other condition on the developer–Ken Belshe of SunBelt Land Management, who was represented by attorney Michael Chiumento. So the plan was approved largely as submitted by Belshe. Flagler Beach government had drawn up a list of four concerns, or proposed conditions. The county largely ignored those.
Belshe spoke toward the end of the meeting, saying he’d kept silent for most of the proceedings so the public had its say. He now had his.
“Bulow Creek is a pristine, beautiful place. We don’t own any of Bulow Creek. All of that property and much of–and a whole bunch of the land on the east side of Bulow Creek was given the county by the previous developer,” Belshe continued. “We’re not here to talk about developing Bulow Creek. That’s not what we’re here for. We’re talking about the east side of John Anderson. But the part that bothered me was that they then switched to a photograph of what is now Marina del Palma as if to say, it was under construction actually, as if to say that Bulow Creek was then going to look like Marina del Palma. A lot of the people here haven’t been here long enough to remember what Marina del Palma and the adjoining property looked like 15 years ago. It was an industrial nightmare. There were giant, concrete structures on that property. There was trash and cables and bricks and concrete strung all over 150, 200 acres there. The fact that it’s gone now, you can thank a developer for that.”
Much of the hearing featured the testimonies and objections of residents and Flagler Beach officials, along with the county’s presentation–which now recommended resolution through approval of the application–and Chiumento’s responses.
First commissioners had to decide the matter of standing, which gives those asking it “a legal presence in the case different from a member of the general public,” county attorney Al Hadeed said. To have standing, he said, a party must show that he or she would suffer “special damages different in kind than suffered by the general public or the community.” Standing “gives them a legal presence in the case different from a member of the general public,” he said.
Three parties were seeking standing: Chiumento, Drew Smith, Flagler Beach’s city attorney, and Tanner. Chiumento objected to extending standing to anyone else in a site plan process that could “derail” the proceedings. “We’re more than happy to not object to them having additional time,” he said–but not standing.
Smith, citing a case he successfully argued from his experience, told commissioners that they would bait litigation if they denied standing, and that the city “hands down should be a party” and have standing. Tanner said Preserve Flagler Beach represents hundreds of citizens who are looking at a “loss of property values” and quality of life from a project that would “totally change the dynamic of that neighborhood.” Denying them standing “would be a set-up for the board to be appealed and to lose the issue,” he said.
Commissioners opted against standing. But they granted extra time for the three parties seeking it. That segment of the meeting alone took almost an hour. Only then Adam Mengel, the county’s planning director, presented the project’s analysis from the county’s perspective, now all but mirroring that of the developer. He did not mention internal disagreement over the project between his department and the legal department, which sees the PUD as too altered not to warrant an amendment.
“I’d encourage you to make a decision tonight,” Mengel said.
“This thing has been through your staff for a good year,” Chiumento said. He repeated that this was not a modification of a Planned Unit Development–the very point opponents are arguing. “This is an existing PUD.” He rejected the claim that the project would cause environmental damage, that homes would be built in a federally-designated flood zone, or that construction would affect sensitive land–all of which, he said, has been “conveyed to the community, to the county.”
“The rules that govern development have been complied with,” Chiumento said. There will be more traffic, but water currently discharged in the Intracoastal will be recycled instead. The site was moved away from Palm Drive, he said.
He then addressed questions the commission raised in September and that Flagler Beach government has also raised since, starting with traffic. Traffic consultant Sans Lassiter of the Lassiter Transportation group said a pre-covid traffic study indicated the two lanes of John Anderson are “clearly sufficient,” with some improvements. There are some 140 homes along John Anderson today on the Flagler County side, 90 on the Volusia side, for a total of 230, he said. The Gardens would bring that close to 600. But, he said, there are 1,960 existing homes along Colbert Lane, which is also two lanes. “It is not suffering any issues with capacity,” Lassiter said. Another consultant addressed flooding concerns and Chiumento spoke of a coming utility agreement with Flagler Beach.
Smith, Flagler Beach’s city attorney, provided the evening’s most forceful case for reconsideration of the county’s approach.
“We stand by our commitments. What we’re asking for is for the developers to stand by theirs,” he said. He immediately challenged Chiumento’s interpretations, starting with the reuse matter: The Gardens’ responsibility doesn’t stop at just laying down pipes. It’s responsible for building a plant. That can be renegotiated. But for now, it’s in writing, Smith said. He was just warming up.
“It is a very developer-friendly developer’s agreement,” he said. “To add insult to injury, the developer is now here before you to take further liberties, to say let’s take this general developer’s agreement and make it even more generous. At the end of the day it’s your decision. I’m impassioned about it because I’m impassioned for people like you, it’s what I do for my career. I represent boards, I represent elected officials. I don’t like to see elected officials taken advantage of, and I think you are being taken advantage of. You are being asked to give up authority that you have right now to say No, when you could say, you know what, this is too much, this is too much of a change. Every developer’s agreement I’ve worked on has a modification provision in it. As Mr. Mengel said earlier, it looks like you have the whole Flagler County planning association here. There’s a reason the planners are here. This is not normal. This does not happen every day. You don’t see this kind of revision to a planned development happen like this.”
“I can’t make the case better than your own legal department has,” he continued, citing the county attorney’s office’s own disagreement with the county’s planning department. “I think you have the legal authority to have more input into this. The city of Flagler Beach is here today to ask you to exercise that authority,” he told commissioners, cautioning them against a legal challenge–which could delay the project two or three years, he said. “And they know that,” he said, pointing to Chiumento.
Flagler Beach planner Larry Torino echoed Smith’s claims in more regulatory language, underscoring elements of the development that are not in compliance with land development rules, specifically rules controlling Planned Unit Developments’ review process. For example labeling as “future development” a swath of the development doesn’t comply with requirements for more specificity, he said. Not at this stage of the development. He then pointed to land-use acreage numbers that didn’t add up. “I’m not opposed to this development. I’m opposed to the process,” Torino said. If he were reviewing the proposal, he said, “I would return this application to the applicant,” and ask for more precision.
“So you’re saying that our planning department is incompetent, doesn’t understand math, or doesn’t understand the process?” O’Brien, the commissioner, said, stopping him.
“This should not be at this level of approval, number one,” Torino, who was not about to directly indict fellow-planners, said. Based on a lack of data, “I find this application not in compliance” with submittal requirements, he said. He then challenged the notion that the planned golf course was workable, as designed.
The commission over a 45-minute segment also heard from Flagler Beach city commissioners and residents, many of them members of the Preserve Flagler Beach group.
“I think it’s quite evident that people want to re-litigate the PUD that happened years ago. This isn’t about that. This is about this plan we put forward to match the concept plan,” Chiumento said when he was granted the next-to-last word. The last, before commissioners voted, was Belshe’s. “Developers can do things right. We feel we have done this right,” he said.
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E. Hoffa says
Trust that there ‘may’ be a cross over! Sounds like another Captain’s BBQ Deal! The Flagler ‘Swamp’ gets deeper and deeper!
A Concerned Observer says
Just one more example of “Money Talks and S#@t Walks”. I applaud the integrity and responsibility exhibited by Commissioners Greg Hansen and Charlie Ericksen. Thank you Sirs! You are doing your level best to represent the citizens who elected you and not the financial interests of developers and their (handsomely paid) lawyers. Greedy financially driven developers running roughshod over existing residents seems to be the expected result of these events. Existing families should have a reasonable expectation of maintaining their quality of life when faced with these issues. Our elected official’s first responsibility must be to their constituents when confronted by developers and their paid litigators who will disappear as soon as the damage is done, and with no suffering on their part from the long-term negative results the residents are forced to endure.
Wow says
Was like watching a video of someone literally commuting murder with undeniable evidence, yet the jury found them innocent. Even Mullins made scorning mention “why are these things slipping through like this…” to Adam Mengel & staff for missing MAJOR stuff, YET seconded the motion. I never understood why people took to the streets rioting/looting for their voices to be heard, but after navigating the “proper” courses to simply be ignored, I now have some idea. When even the City is against the “modification”. Common man! FCBOCC needs to do better. I hope this haunts them (as it unjustly will the residents that have to deal with it), and pray anyone breaking ground on that project is cursed. FBPD take note: you will have a great opportunity for traffic enforcement on JAH.
Concerned Citizen says
So our inept and corrupt “BOCC” made it happen.
No surprise there. Wonder how much bribe money was passed around. You don’t get a major development suddenly approved that was viciously opposed by the public without strings attached to it.
Yet another instance of our beloved BOCC giving Flagler County thhe middle finger and saying FU to their constiuents. All while laughing at us too. For those who voted for these folks to stay in office, I hope you’re happy.
Bethechange says
The evidence presented by the concerned parties last night was thorough, comprehensive and unequivocally compelling against proceeding. Thanks to Commissioners Hanson and Erickson for paying attention. It appears the other 3 heard not a word and l contend their minds were made up when they entered the chamber. Which is more of the same; everyday, everywhere. Big developer, big money and corrupt politics again wins the day.
Bob says
Ken Belshe was heavily inolved in Pam Coast Plantation and another large project south of Disney World both of which went south. Just another Bobby Ginn in my opinion.
Gator Rodder says
Palm Coast Plantation just happens to be one of the finest most environmentally preserved developments in the area. I know, I live there and live it. It was my first choice.
Paul Harrington says
Once Palm Coast Plantation is fully built out you might have a different view on being the finest environmentally preserved. Two high rises at the south end along with doubling the residential units will change the area.
Blonde But Not Dumb says
Moved to Flagler Beach to escape “subdivision sprall” and to immerse myself in the pristine environment.
Too bad our County Commission is so short sighted. Flagler County residents will pay the ultimate price. I hope Mr. Mullins, Mr. Sullivan, and Mr. O’Brien enjoy their final terms in office.
Steve says
As the Continuos Soap Opera episodes go on and on as sure as the tides flow FB will one day be like all the other Beach town strips up and down the Coast crowded dirty congested clustered ruined.WTG RIP the rest of it up while you are at it.
John Stove says
Breaking News for Flagler Beach….
If a vacant tract of land or residential plot of land is zoned for development (as in this case), you have no legal right to deny its development!! If you didn’t want this tract of land to be developed, the residents of Flagler Beach should have started a grass roots campaign years ago to purchase the land from the owner and then donate it to the city in perpetuity for the sole purpose of “open space” or “green space” thus preventing any development from ever occurring.
Flager Beach can only apply its existing zoning, development and building code rules to undeveloped land but CANNOT stop land from being developed. Developers have to play within those rules and submit tech docs and plans for review and approval and make reasonable accommodations to meet the criteria. In may cases developers do not have to meet any criteria applied to them based on local citizen opposition.
If you dont want land or neighborhood lots or vacant land next to you developed, then buy it and turn it into a park or recreational area, otherwise……please stop whining
Walter says
You’re right in what you say but missed the point made at the meeting that was not mentioned in the article: The people of Flagler County are the majority property owners in the land comprising the planned development (roughly 1,200 acres out of 1,800) and their land is transfering its development rights to Mr. Belshe’s property. The stewards of that public land are the County Commissioners. By virtue of the technical and procedure flaws pointed out in testimony and it public ownership stake in the overall parcel, the Commission had every opportunity to address this application more responsibly.
John Stove says
Walter:
My point still holds….if the “majority owners” as you point out didn’t want the tract ever developed, they should have purchased the remaining 600 acres that they didn’t own, thus making the citizens of Flagler the sole owners and basically preventing any development of any kind. Once they became sole owners they could have deeded the property back to the city/county as either green or open space. Trying to stop development now when the developer is following the rules is like trying to put toothpaste back into the tube.
Lack of foresight by Flagler citizens is not the developers fault.
Oceanside says
The developer is NOT following the rules, as you would have known if you attended the meetings. And the commissioners are not forcing the developer to do so. According to existing county regulations, a PUD does not remain in place for 15 years UNLESS the development has been consistent and ongoing. Clearly not the case. In addition, the county has zoned that area for one house per 5 acres. Those of us who live on JAH are fine with that. But there again, the county is NOT holding the developer to that, and the developer knew the restrictions when they bought the land.
John Stove says
Wow….assume much?
I was at the meeting
BMW says
When common sense prevails….
BMW says
What’s the saying, “If you don’t own it, you don’t control it.” It’s naive at best for people to think the builder is going to walk away from his substantial investment to allow the property to rest in it’s present state for perpetuity. The concept of a fly over across John Anderson is extremely disturbing as it will only serve to destroy the aesthetic appeal of the highway. The Hammock has over 6,400 homes spilling onto A1A, and countless residences onto Colbert with little impact on ones ability to travel north or south. As a community, we need to take a realistic approach and understand the long term impact of pushing demands without considering the end result. And, to stop demonizing those who may have a difference of opinion. Everyone reading this comment lives in a structure built by either a builder or developer, both truly respectable professions.
Oceanside says
so you’re OK with the county seizing private property? bec the planning commission already invoked eminent domain to remove homes at the N end and mid-section of JAH. That was their plan all along. But maybe “private property” doesn’t mean anything to you. It certainly doesn’t seem to mean much to some of our county “leaders”.
m thompson says
You can’t compare A1A or Colbert Lane to JAH. A1A is a major highway with other highways & other access roads off of it. Colbert has two major roads at each end: Palm Coast Pkwy & RT100 & an access road to Old Kings.
John Anderson however has RT100 at one end & the other ends to a road that has no bicycle lanes, sidewalks & is barely passable by 2 vehicles. It is a natural sanctuary that frequently floods & the roads are impassable often.
So, an overpass over JAH do divert extra traffic off the road from this development would be beneficial no matter how it may look. Practical isn’t pretty!
Dawn Smith says
There was no mention of evacuation routes, for state of emergencies. As to the water tablet when it runs low. These so called developers. Tear stuff up and leave town. They don’t even live in this state. As to what will happen to that protected bird sanctuary. On John Anderson?
Dawn Smith says
County commissioners, can not handle abandoned properties out of city limits. For years no one will go after property (8 Sycamore Street Flagler Beach ) owners(taxpayers) to clear downed trees and broken fences, along with underbrush. That has fallen onto adjunct properties . This regime needs new leadership.
Oceanside says
THANK YOU to Commissioners Hansen and Ericksen for voting AGAINST this. The county isn’t even following its own rules, as was pointed out at the meeting. I don’t think this is over by a long shot.
Wow says
So how soon will our water and sewer rates go up? How soon will the fure department need more staff and equipment? How soon will the police department have to grow? How soon will the town maintenance crew have to grow? Doubling the size of the town likely will cause a need for more town employees.
Jane Gentile-Youd says
The voters had a choice between ‘ good olde boy member’ Donald O’Brien or Denise Calderwood who had lived here 45 years and continues to donate her time at no cost to help the less fortunate in our county, She has a master’s degree, a big heart, a big brain and is honest and sincere and NOT a group player.
The voters are to blame…Had Denise been up on the podium Monday night the development would have failed.
The writing was not only on the wall – it was in our faces: O’Brien, Mullins and Sullivan are the majority group vote and we are stuck because recalls are not available to non-charter municipalities , i.e. Flagler County, per Florida Statute 100.
I hope the many wronged, negatively affected citizens file an appeal and I pray the courts take into account that we still have a democracy ” of the PEOPLE< by the PEOPLE and for the PEOPLE.
Jane GentileYoud says
OOPs – the vote took place one day before the changing of the guard but that it why it was planned for November 16- just in case Denise had won O’Briens seat –
Palmcoaster says
FCBOC commissioners Obrien, Sullivan and Mullins do not have at all in mind or care for the preservation of the existing residents quality of life, safety and pursuit of happiness! With all the residents and their lawyer and experts that showed up and sopke with evidence against this project, anyway they shamefully approved it! All get stomped by the one’s they elect…what were you thinking at the ballot box…unless is rigged?
Paul Harrington says
We had a chance to bring smart growth to Flagler County. The Gardens could have been an example how to address the environmental concerns of a truly sensitive area. Instead we got 50’s thinking in a “Levitt” style plan. Nothing new here.
The plans weren’t properly vetted. It was a bought and paid design that planning was pressured to accept. It was a “Political” stunt.
Michael Chimento questioned in February and at the BOCC meeting why the neighborhood was so adverse. This isn’t Palm Coast Plantation, this is the backyard of a great many land owners. Commissioners Hansen and Erickson took the high road asking for a complete design. Shame on David Sullivan, being a native DC suburbanite he should know what poor planning brings.
This will be one more burden to Flagler Beach taxpayers. Somethings never change.