Judge Rejects ‘SLAPP’ Suit by Veranda Bay Developer Against Opponents Who’d Challenged County’s Approval

Rejecting what he saw as an attempt to silence an advocacy organization’s right to challenge development, Circuit Judge Chris France on Friday ruled in favor of Preserve Flagler Beach and Bulow Creek, ending a year-and-a-half-old lawsuit filed against the group by Palm Coast Intracoastal.

France termed PCI’s action a SLAPP suit impermissible under state law, handing the grass-roots group a major victory against the chilling effect of such lawsuits on speech and participation in matters of public concern. But it’s likely not over. “I would expect they intend to appeal. That’s what we’ve been told,” John Tanner, the attorney who was named among the defendants and argued on their behalf, said today.




“Since 2000, Florida law has prohibited the filing of ‘Strategic Lawsuits Against Public Participation,’ or so-called ‘SLAPP’ suits against individuals or entities for exercising their constitutional right to seek redress for grievances before a governmental entity,” France wrote, granting summary judgment in favor of the group. The Legislature strengthened anti-SLAP suit provisions in 2015.

Preserve Flagler Beach and Bulow Creek was represented by Tanner, as was Steve Noble, a member of the advocacy group and a resident off John Anderson. Tanner and Noble were named separately as defendants.

PCI is under the umbrella of SunBelt Land Management, the company overseeing what is now known as the Veranda Bay development, which by 2044 is projected to have over 2,700 housing units and a new downtown-like commercial development. Preserve Flagler Beach, Tanner–a former state attorney–and Noble, had voiced opposition to Veranda Bay, or The Gardens, as it was previously known, since 2019, and Tanner had filed suit on behalf of Preserve Flagler Beach disputing the County Commission’s green-lighting of the development. They failed. But then PCI sued the Preserve group, accusing it of having filed a malicious suit against it and causing it costly delays and damages.




PCI’s lawsuit against Preserve is without merit, the judge ruled, and was filed primarily “because [Preserve] exercised their constitutional right to instruct the [County Commission]and to seek judicial review of the [County Commission’s] approval of” the development. Preserve and Noble had argued that they had relied on their attorney’s advice to challenge the commission’s decisions, which in and of itself barred any claim of malicious prosecution. France declined to rule on those merits, saying that issue was made moot by the ruling against the “slapp” suit, give that Preserve had the right–and probable cause–to challenge the county’s decision in court.

The judge also ruled that the court would consider a motion if Preserve, Tanner and Noble wanted to recover their legal fees, which are “easily in the tens of thousands” of dollars, Tanner said. He intends to file that motion.

“We’re pleased with the result and pleased with the judge’s order,” he said. “This si a landmark decision and it’s a major victory for citizen’s rights.”




The case ties into a broader history with ongoing twists ramifications. In 2005 it was called the Hammock Beach River Club Planned Unit Development. It was to be a residential, golf community. The housing bust interrupted the plans. The plans were revived and submitted to county regulators in 2019, after Palm Coast Intracoastal acquired the property in 2018.

There were some differences between the two plans. One difference was the road connecting the two sides of the development on John Anderson. The 2005 plan had that road crossing over or under John Anderson. The 2019 plan had the road crossing at grade–level with the road, as with a traditional intersection. The developer sought a modification to the 2006 site plan that would accommodate the at-grade crossing. Preserve Flagler Beach and Bulow Creek advocates along with Noble sharply opposed the change from the 2006 plan.

The city of Flagler Beach had also opposed the plan on the same ground, citing three additional issues as well. When the County Commission approved the development in November 2020, it did so with an at-grade crossing. (The city subsequently retracted its opposition and embraced the development. Just last week, the Flagler Beach City Commission voted on first reading to annex the development into the city. The commission is holding a workshop on Tuesday–Sept. 23–to hear public comments about the proposed annexation.)




In December 2021, Tanner filed suit against Flagler County, specifically a petition for “writ of certiorari,” asking the circuit court to review the County Commission’s decision, determine whether due process was followed, and whether legal and administrative requirements were supported by evidence. The petition was later amended.)

Though it clearly targeted the development, the petition was not against the developer. It disputed the county’s interpretation of regulatory steps. Months later, Circuit Judge Terence Perkins denied the petition.

Tanner appealed to the Fifth District Court of Appeal, and in this case included Palm Coast Intracoastal among the defendants, but as Judge France stressed, PCI had to be named, even though the arguments were directed at the county. “This 825 acre parcel is one of the very few natural wilderness areas left along the entire coast of Florida. If we allow it to be destroyed, there will never again be a place like it,” he argued, clearly indicating that the opposition was not just to regulatory matters but to the development itself. The Fifth District declined to hear the appeal, so the County Commission’s decision stood, and the development’s construction, which had already begun, proceeded.




Notably, neither the circuit court nor the court of appeal deemed the Preserve advocates’ arguments frivolous. Tanner and the advocates thought the matter ended there. It did not. On March 7, 2023, Michael Chiumento, the land-use attorney representing Palm Coast Intracoastal, along with a trio of Tampa-based attorneys, filed suit on behalf of their client against Tanner, Noble and Preserve Flagler Beach and Bulow Creek. The claim: Malicious prosecution. The suit claimed damages exceeding $50,000.

That’s the suit France ruled on Friday. Bu Tanner said he wouldn’t be surprised if the case was appealed all the way to the state Supreme Court.

It’s not over for Preserve and its advocates, because it wasn’t the first suit by SunBelt or its subsidiaries against opponents of The Gardens/Veranda Bay: in 2020, Chiumento, representing SunBelt, sued Ken Bryan for defamation. Bryan had also opposed The Gardens on various grounds as a member of Preserve Flagler Beach. He who would later be elected to one term as a Flagler Beach city commissioner, and also embrace the development, with conditions.

SunBelt argued that Bryan had made knowingly false claims about the company’s tree-clearing methods in St. Johns County. SunBelt then added Sallee Arnoff, another member of Preserve Flagler Beach, as a defendant, after initially referring to “Jane Doe.” That lawsuit is ongoing. Bryan and Arnoff have filed motions for summary judgment. That decision is pending.

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