In mid-September Circuit Judge Terence Perkins ruled that the Flagler County Commission had acted properly when it approved The Gardens for development, the 335-to-445 home project slated for 825 acres on John Anderson Highway. On Oct. 14, the group that had challenged the decision filed an appeal in the Fifth District Court of Appeal.
The six-page appeal is a place-holder, with a longer petition to follow. Preserve Flagler Beach and Bulow Creek, the group filing the appeal with Stephen Noble (a John Anderson highway resident) had to meet a 30-day deadline from the time of Perkins’s decision for a valid appeal. They now have, casting yet another shadow over a development that has faced political and legal opposition since it was re-introduced two years ago.
The appeal seeks to quash Perkins’s Sept. 15 decision. But it does not present substantially different arguments than it did before Perkins–a judge known for his close and strict readings of statutes and procedures, and not known for errors or sloppy reasoning.
The appeal is asking the Fifth Circuit to determine whether the circuit court afforded due process and whether it misapplied the law. Perkins ruled that Preserve Flagler Beach, a group of Flagler Beach and John Anderson Highway residents who organized with a board of directors and members to oppose the project as submitted, did not have standing to file a lawsuit, and that the commission had properly applied the language of its Land Development Code. The appeal contests both counts.
Notably, Perkins noted in his ruling that the finding of no standing “did not affect the Court’s determination of whether [Preserve Flagler Beach] presented a sufficient basis for” a decision in its favor. In other words, he was noting that he’d have ruled the way he did even if Preserve had standing, based on his other findings: that the county commission provided due process, followed the law, and did so based on “competent substantial evidence.” (See Perkins’s decision here.)
The appeal was a brief matter of discussion at the County Commission meeting on Monday. “It concerns me that it sounds like it’s almost a delaying tactic on on the Preserve Flagler Beach Group when, when we already have a court decision,” said Commissioner Dave Sullivan, who was part of the 3-2 majority that approved the development at a contentious meeting almost a year ago. Sullivan’s district includes the area of The Gardens. He wondered about what sort of timeline the county and the developer, Palm Coast Intracoastal, both of whom are named defendants, are facing.
“What you’ve hit upon is the problem that all parties have when there’s an appeal,” County Attorney Al Hadeed said. At the appellate level, there’s no telling when the court will make its moves. But it’s laborious and can get complicated. The appellate court will next determine whether Preserve Flagler Beach will be granted time to file every document it wants to file. Assuming the court gives the go-ahead, which is likely, “from the time they file everything the court will review it to decide if there is a basis to trigger an appeal of the decision of Judge Perkins. I cannot tell you how long that timeline occurs. There’s no way to predict that. The orders just get issued from the court and we get them when we get them.” Often the court issues a one-line ruling affirming the lower court decision. It does not have to issue an decision lengthier than that.
Opposing parties get to submit their materials, but will not necessarily appear before the judges, unless the judges require it.
The Flagler Beach City Commission also opposed the development plans as submitted before the county commission last year, but the city is not a party to the lawsuit. Preserve Flagler Beach is asking for an extension as it awaits the transcript of the Aug. 31 hearing held before Perkins and prepares its brief.
In the last few months, Flagler Beach and Palm Coast have approved–or are in the process of approving–three adjoining and rather large developments not far from John Anderson Highway, on Roberts Road, that together combine for 569 single-family homes or apartments. None of the developments have drawn opposition.
The Gardens is a revived, so-called planned unit development that the county commission initially approved in 2005 when the land was owned by Bobby Ginn. Two years ago The Gardens projected a development of nearly 4,000 homes and apartments on the acreage. That drew sharp opposition. The project was scaled back. The opposition did not scale back proportionately, arguing that in its current form the development plans had to be re-submitted as a new planned unit development. If The Gardens were to do so, it would then kick off a very lengthy regulatory process.
Steve Vanne says
There wasting there time. The discussion already been made. Its all about money. The commissioners could care less about what people don’t want. MONEY rules for these guys…
It’s nice to see someone trying to stop all the growth in Flagler County. Most likely a loosing battle. The quality of like is being destroyed by tax hungry politicians. When will enough be enough?
DennisC Rathsam says
Looks like Flagler Beach is taking a page out of our play book….More people, more homes, more traffic & the need for more cops! I guess they wont stop til theres no more land to develope. When will the condos, reaching to the sky, start to be built on the ocean?
Ah yes, in your case — correct:
Conversation, n. A fair for the display of minor mental commodities, each exhibitor being too intent upon the arrangement of his own wares to observe those of this neighbor.
— The Devil’s Dictionary, a satirical dictionary written by American journalist Ambrose Bierce
John Stove says
The land has been zoned for this type of development for quite some time now, the developer submitted his original plan and held public meetings (as required) and then reduced the scope of the project to get approval and meet all codes and ordinances in place.
The developer did what was required by the approving authority and the approving authority applied rules in place and subsequently approved the project.
I dont see what could possibly be a case here for the groups of citizens who oppose this project other than NIMBY (Not In My Back Yard)…..
Guys….if you didnt want to ever see this plot of land developed, you should have started a grass roots movement to raise funds to purchase the vacant land and then deed it over to the County as a “preserve”.
Developer has the right to build as approved.
I hate to tell people, but big business-impacting county and city growth well it’s going to happen one way or the other. The little town we all used to like is changing, people hate change but the city and county “big wigs” see nothing but tax dollars and progress. They might delay but this type of progress will just pop up again and again and again until big business wins and the city and county get their dollars. .
Save the Loop and roads nearby! Damn their money! Keep Flagler beautiful!
Sorry, but I wish all developers would stop by our parks and beach! I don’t want to live in a little Miami!
Another Jacksonville in the making.
All I can say is people, you did this to yourself . Promoting where you live, which meant TV shows (Beachfront Bargain Hunt: Renovation show) , Tourist blurbs via the Chamber, realtors pushing property. Yep word of mouth has a major hand in growth whether we like it or not. .