It’s been over a year since Palm Coast developer Alex Ustilovsky has been attempting to win public and regulatory approval for what started as a 300-home development reshaping the disused Matanzas golf course in the L Section. The fate of the development, called Lakeview Estates, may be decided tonight when the Palm Coast City Council takes it up for the first time. It is the only item scheduled for the council meeting starting at 5:30 p.m at City Hall and on YouTube.
Residents there and city regulators had numerous objections–not to the development, which cannot be legally stopped, but to its scale. It stretches over 10 individual tracts that snake around the L-Section, the way fairways do now. The developer scaled back the plan to 268 homes in negotiations with the city last year, and is now offering to build a 4-acre park in the most disputed of the 10 tracts. But the issue over that tract (“Tract 3”) has not been resolved, and will be a central sticking point tonight.
The city says the developer has no legal right to build on it. The developer says he does. City staff is recommending approving the development as a whole, but against development on Tract 3. The council will have to arbitrate, and in doing so, it will have to interpret the language of its Land Development Code, which appears to justify the city’s position, but is not black and white by any means.
Here’s the Land Development Code language at the heart of the dispute: “Existing direct golf course views from the rear yards of all existing, platted lots located within any residentially zoned districts directly abutting the site shall be maintained.”
The city’s position is that developing Tract 3 would violate that provision. The developer’s position is that nobody’s views will be compromised with the development of Tract 3, because a 100-foot “view protection zone” will be maintained, providing ample greenery. Put another way: homes along lee Drive whose backyards give onto the golf course view now will see the same line of trees and brush they do now as they will if the tract is developed. The city disagrees, interpreting “direct golf course views” more strictly.
But the Land Development Code does not define “direct golf course views.” It does not assign a distance to what “views” means: 100 feet? 200 feet? Half a mile? It doesn’t say.
The proposal twice went before the Palm Coast planning board, which reviews development applications and makes non-binding recommendations to the City Council. The first planning board meeting, in October, ended with the board punting the matter back to negotiations between the developer and city staff. The second meeting the next month ended with a 7-0 recommendation for approval–but approval siding with the city’s position on Tract 3 and a few other matters.
The stalemate between the developer and city staff was not broken.
“You had the opportunity to present us a different design concept even if you weren’t able to come to agreement with staff,” Planning Board member Sandra Shanks told Michael Chiumento, the attorney representing the developer, at the second meeting. “Then that would have proven to us that you are attempting to work and mitigate the issues that the community has regarding this design. But you chose to bring us back the exact same concept. So that’s concerning.”
“I get it, and this is what we came to talk to you about since you’re the decision-maker,” Chiumento replied. “We can hear your comments and say you’re interested in A,B,C,or D alternatives, or yes, we’re interested, but you’ve got to come back–and we can do that. But when when you gave direction to us and said go find something in between with staff, and we can’t, maybe I didn’t think through or we didn’t think through it to come back with new proposals to you. But as we said all along when we started this whole thing up, we’re open, we’re willing to continue to define and modify if given an opportunity.”
Chiumento has also argued that the golf course is no longer a golf course. At the time, the developer had not proposed the 4-acre park.
Both planning board meetings drew throngs of residents. Opposition to the development was no longer what it had been at a “neighborhood” meeting the developer held in December 2019, when there was more public anger and recriminations than discussions, though the public at the time also saw in Ustilovsky a developer willing to listen and negotiate. But the tenor of the November meeting was distinctly angrier than it had been in October.
Public concerns before the October planning board meeting revolved around potential arsenic in parts of the golf course, the golf-course view issue, and smaller lots the developer was planning. Residents worry that smaller lots and homes will diminish existing property values. But they sensed that the planning board was echoing their concerns.
When the development application resurfaced at the November meeting largely unchanged, those who spoke were more exasperated and bitter than in October.
“I actually didn’t suspect we’d be here so soon, especially without resolution by both parties,” Leann Pennington, a resident of Lake Success, said at the November planning board meeting. “The only thing I can suspect that’s changed is that we have now passed our election, and perhaps they feel confident having enough votes in this forum or the council to get through this, and get the approval.”
Pennington went on the speak of the residents’ rights to backyard views as stated in the Land Development Code–and in statements by Jason DeLorenzo, the city’s development director. “He concedes that we took a strict interpretation of that view. Strict or expansive, the end result is no homes on fairways abutting any existing planned home. After reading this in newspapers, our residents feel very assured that the city is protecting our value, our privacy and our health. We actually went from 400 residents turning up at the first developer meeting to what’s here today, and why is that, it’s because these residents belief the city is protecting their rights. However I want to put us on notice here today that we have retained legal counsel. We are prepared to file a class action once this board or council goes against those rights or changes that land code. You will not infringe upon our rights. You will not take away our home equity, and you will not intrude upon our privacy or our health. Enough is enough, there’s land to be developed here for him, and that’s where he needs to stick to, and stay out of the fairway.”
Others were “outraged” that the “so-called report on arsenic was not made public.” (That report is available here.) They objected to the sort of pond that would potentially bring alligators to his backyard, or objected to what they see as broken promises if the land code is reinterpreted in the developer’s favor, raised concerns about potential flooding, or said the golf course should be revived and maintained as such, and again and again returned to the “view protection zone.” Some residents said they simply didn’t want more development in the area: “We believe that there’s enough homes already developed in the L Section, we don’t need to add anymore to it,” one said–a common misconception about developer rights.
Of the ten or so individuals who addressed the planning board in November, one categorically took the developer’s side–Toby Tobin, the realtor and publisher of GoToy.com, the real estate-focused site. “The LDC revision opened the door to the possibility for permanently closed golf course and the possibility of future development. Well-intended city staff created the concept of a view-protected zone, which residents and perhaps staff assumed would be perpetually maintained to some level by code enforcement. Staff did not define a view-protected zone, a VPZ. They still have not. The golf course is now permanently closed, no longer a golf course in any way. That fact is not in dispute. The former fairways are now in the hands of nature, also undisputed. Unwilling to do its job for the second meeting in a row, staff has abrogated its responsibility to the PLDRB.”
The acronym stands for Planning and Land Development Board. Tobin was misinterpreting the staff’s role: given the lack of definition in the development code, it’s within the administration’s purview to interpret it as it deems appropriate, and within the board’s–or the council’s–purview to interpret it differently, as a matter of policy, taking on the consequences–which in this case may entail litigation one way or the other. It isn’t the administration’s role to invite litigation, but to recommend the course of action that appears best in line with existing regulation, and therefore least at risk of triggering litigation.
“They would like the PLDRB to define a view protected zone,” Tobin went on. “Their current arbitrary stance remains since the issue was continued from the previous meeting. They turned a quasi-judicial procedure into really what is a workshop. Their position infers that a view protected zone need not have any relationship to what you can actually see from a resident’s backyard or kitchen window.” He recommended that the planning board approve the proposal, while urging the city council to come up with a clear definition of a view-protected zone.
That wasn’t quite what the planning board recommended in its 7-0 vote, but the council’s decision tonight, should there be one, will amount to an implicit ratification either of the staff’s interpretation or of that of the developer. It would be the first of two hearings on the application before the council.