The Gardens Development Wins Key Battle as Court Finds County Commission Acted Properly in Clearing Project

The Flagler County Commission last Nov. 16 approved the development on a 3-2 vote in the face of what by then had grown to be staunch, routine and thronged opposition to the plan. The opposition was led by a group called Preserve Flagler Beach, whose board includes former State Attorney John tanner and former County Commissioner Barbara Revels, and whose whose membership is made up mostly of Flagler Beach residents. The opposition also included Flagler Beach government.

While Perkins ruled that Preserve Flagler Beach had no standing to seek the overturning of the commission’s decision, he also ruled that even with standing, the result would not have been different: the group did not meet its burden to show that the decision should be overturned.

Neither the city nor Preserve Flagler Beach were against the development per se, but against county approval of a development without a set of conditions or other procedural steps one of the two opposing sides had sought. Preserve Flagler Beach wanted the development to submit a new application for a so-called Planned Unit Development rather than go on an amendment PUD based on a decade and a half old document. The Gardens saw the pressure to resubmit a PUD as a delaying tactic that would have dragged out regulatory steps and further opened doors to scuttle the project.

Flagler Beach government wanted a set of conditions applied to the development–conditions Preserve Flagler Beach also wanted in place, failing a new PUD. Those conditions included a commitment from The Gardens to build an overpass or an underpass crossing John Anderson Highway, between the two sides of the development; a more precisely defined map of areas designated for future development to ensure against an increase in the density of future development, absent an amendment to the PUD; assurances against construction that would lead to flooding of neighboring properties; and a commitment to use the city’s recycled water on its golf courses. (See the full set of conditions here.) The County Commission appended none of those conditions on its approval in November.

Preserve Flagler Beach challenged the decision of the County Commission on Nov. 16 on three claims: that the commission did not accord the group due process that day and at a September hearing by denying Preserve Flagler Beach standing as a party to the proceedings. The group was not denied the right to address the commission. But Tanner wanted to call expert witnesses to whom standing would have provided a quasi-judicial status that plays into the competency and substance of the evidence presented to the commission, and on which the commission is ostensibly basing its decision. The commission does not have to give equal weight, or any weight at all, to public speakers who do not have standing, if it so wishes. But at the hearing, commissioners took the approach that, while standing would be denied, those speaking in opposition to the project would have “the same amount of time, and the same rights as the applicant,” the county’s answer in court states.

The group also charged that the commission violated terms of its own land development ordinance when it approved the development, and that the decision was not based on competent substantial evidence. The group’s pleadings incorporated the four conditions as part of its argument that the commission’s decision was erroneous.




None of the arguments were new. They’d been outlined at the two public hearings before the commission, and refuted then by The Gardens’ attorney, Michael Chiumento and the county attorney–Assistant County Attorney Sean Moylan handled the hearings–along with Ken Belshe, the developer. The lawsuit itself, naming both the county and the developer, was not a surprise and had been alluded to during the hearings. It was filed in mid-December.

The county countered that due process was accorded. “Due process is a flexible concept and requires only that the proceedings are essentially fair,” the county argued in court pleadings. “The extent of due process protection varies with the character of the interest and the nature of the proceeding.” As for following the requirements of law, Preserve Flagler Beach did not argue that the commission failed to apply the correct law, the county argued. And the commission’s interpretations of such requirements (or lack of requirement) that the developer provide a crossing on John Anderson Highway were not erroneous. (The commission granted the developer’s plan to provide at-grade crossings, rather than through an overpass or an underpass.) As for competent substantial evidence, the county relied on its planning director’s presentation as constituting that.

Judge Perkins’s order was a brief four pages. It summarized the matter as briefed at the Aug. 31 video conference, which took place of an in-person court hearing, and denied Preserve Flagler Beach’s petition for writ of certiorari–that is, for the circuit court essentially to hear the case that was presented to the County Commission. The judge was not judging the evidence in the case, but judging whether the manner in which the evidence was presented was legally sufficient and met procedural standards. He found that it did.

Preserve Flagler Beach has 30 days that they could appeal to the Fifth District Court of Appeal. “Once that 30 days goes, that’s it, no more judicial remedy would be available,” Moylan said today.

Preserve Flagler Beach v. Flagler County

Click to access preserve-v-county-gadrens.pdf