One Side Says Defamation. The Other Says Intimidation. The Gardens Development Spins-Off a Lawsuit.

The development first drew attention–and opposition–last summer when it proposed close to 4,000 homes and apartments on the two sides of road in Flagler Beach. The project would take a generation to build out, according to Ken Belshe, the senior director with SunBelt Land Management and the point man on The Gardens. But opponents say it will change the complexion of Flagler Beach from a small, quaint town to something resembling a densely built south Florida coastal community, even though the entire project falls in the county’s unincorporated area: the county has regulatory authority. But because the project would depend on Flagler Beach’s water and sewer utility, and of course because of its immediate proximity, it makes the city the quasi jurisdiction for the project.

The opposition group’s numbers, presence and noise at two meetings where The Gardens was the agenda last summer appeared to take the developer by surprise. He pulled the proposal, re-submitted a different, scaled-back version, which was rejected by the county administration, and is submitting an amended version expected to be considered at the county’s Technical Review Committee this month. Opposition has not let up.

But in a surprise last week, SunBelt filed a defamation lawsuit against the group’s Ken Bryan and “Jane Doe,” because of the way they’d characterized SunBelt practices at the November community meeting. John Tanner, the former State Attorney and one of the lawyers representing the Bryan and the group, said a counter-suit is likely, and characterised the filing as a slapp suit–a strategic lawsuit against public participation, intended to intimidate or silence opposition.

Michael Chiumento III, the Palm Coast attorney representing SunBelt, said intimidation was “absolutely” not the intent. “This is about Ken Bryant defaming a company in St. Johns County, period.” And the suit has “nothing to do with The Gardens.”

Chiumento said the lawsuit rests on a narrow, simple argument: Bryan had prefaced his remarks to the crowd at the November meeting by saying that the group’s work is rigorously researched and documented. But he then proceeded to offer an example of SunBelt’s alleged practices that was factually wrong on two counts: the company he was referring to is not the company planning The Gardens in Flagler, but one in St. Johns County. And the words Bryan used to describe land-clearing on SunBelt land (the word was “clear-cutting,” which has a pejorative connotation) was inaccurate–and in SunBelt’s view, intentionally so–to show SunBelt in a bad light.

To the general public, SunBelt may be Sunbelt. But there are legal distinctions, as within any large, umbrella corporation. The company planning The Gardens is under SunBelt’s umbrella–as is Belshe’s title–but the company itself is registered as Palm Coast Intracoastal LLC, as far as the state Division of Corporations is concerned, and as far as Flagler County government is concerned. The company that Bryan was referring to in the St. Johns example was Sunbelt Holdings Florida LLC, which owns the parcel there.

The defamation lawsuit, which seeks damages in excess of $30,000, quotes Bryan’s words at the November meeting and those of “Jane Doe.” Chiumento would not say how SunBelt got a transcript of the November meeting, but clearly, the company had someone in the audience recording or transcribing. Bryan’s words quoted in the lawsuit closely but not entirely identically tracks with FlaglerLive’s transcription from a recording we made. The differences are minor, and don’t seem material to the issue. The quotes presented here are from FlaglerLive’s recording, which is also included in full for context.

“Now what is our mission?” Bryan had asked the audience rhetorically at the beginning of the meeting, describing Preserve Flagler Beach and Bulow Creek as a registered nonprofit. “We formed to bring awareness to the community of Flagler Beach and Flagler County regarding a proposed change to the land use map that would allow a mega development that would alter the quaint beach area that we all know and we love here in the Flagler Beach area.” He said the proposal could also affect the Bulow Creek area. He pointed to the maps the organization prepared, with highlights. He then detailed the issue as did Robin Polletta and Sallee Arnoff.

A little more than 30 minutes in, after Polletta spoke and just before turning to a Q and A segment, Bryan took the mic again (it’s minute 34 in the recording embedded here.)

He told the audience that while the question cards were being collected there were “a couple of points that I think you should be aware of. This particular company, Sunbelt, last month–I’m from originally from Maryland (sic.), having lived in St. Johns County and St. Augustine for 13 years prior to moving here. About three or four weeks ago I got a call from one of my friends in St. Augustine. This particular company went in to a particular piece of property that they own near the airport on Old Gun House Road I believe it is. They moved [inaudible] they moved their equipment in on a Friday, and they started clearing land right after all the county employees had left. And they continued to clear land until Sunday night, when they were finished. By the time the county found out what happened, they had clear-cut this entire property. So, you say, well, what’s going to happen? Well, they got fined. They got fined [inaudible] a total of $7,000. That’s just the cost of doing business. And I’m just making you aware of this because, pay attention to what’s going on. I mean, I’ve worked here, you know, Elizabeth [Hathaway]’s husband has an incredible drone, so we keep an eye on [laughter drowns out his words].” He asked supporters to “be vigilant” and give members of the group a call if they see anything out of place.

Polletta, Arnoff, Elizabeth Hathaway and Barbara Revels, the former county commissioner, along with Bryan, all fielded questions during the Q&A.

“He made the statements knowingly that they were false, and they caused damages,” Chiumento said of the “clear-cutting” and “cost of doing business” portions. (Though there was land clearing, it was selective, not “clear-cutting,” Chiumento said.)

Tanner, who said he’ll be just one of the attorneys representing Bryan, didn’t see “any substantial basis” for the complaint, which he said doesn’t allege “intentional malice.” Bryan’s statement, just for being inaccurate, “still doesn’t make it an intentional misrepresentation.”

There’s also the matter of damages: “What provable damages if any have you incurred, and how can you prove they directly relate to this one comment by a citizen who simply tried to explain his opposition as a citizen to a development?” Tanner said. “This suit appears to be an attack upon a citizen’s right to oppose this development and more importantly, an attack upon free speech.” (Bryan, a former county commissioner in St. Johns, is a candidate for the Flagler Beach City Commission in the March election.)

Tanner added: “We’re looking forward to getting in court. I hope it won’t be a long litigation, it looks like it will be fairly straightforward and we’ll file a response within 30 days.”