In Friendly But Sharp Terms, Flagler Beach Draws a Conditional Roadmap for the County on The Gardens Development

City Commissioner Eric Cooley first proposed the conditions last month in a surprise move that lent more explicit clarity and considerable weight to objections the county commission had vaguely verbalized to The Gardens when it tabled the matter after an epic hearing two weeks ago. Until then, the objections and conditions had been more of a wish list from a grass-roots group that’s been battling the Gardens, called Preserve Flagler Beach and Bulow Creek. The commission denied the group, legal standing at the hearing, but allowed its members to speak. Flagler Beach as a city commission will have undeniable standing.

On Monday, the city conveyed its conditions in the form of a letter signed by each of the city commissioners and the mayor, fronting an eight-page analysis by Drew Smith, the city’s attorney.  Commissioner Eric Cooley had insisted in a special meeting Friday that the letter be conveyed as a “formal communication to the county on our formal position,” he said, rather than just as Smith’s analysis.

The conditions are not new and were revealed last month, addressing a crossing at John Anderson Highway, future development, drainage concerns and the proposed development’s use of Flagler Beach’s reclaimed sewer water. But under Smith’s pen, the conditions now amount to a clear roadmap for the county as it looks for a way to approve the development without forsaking residents’ concerns.

Flagler Beach wants The Gardens to commit to an overpass or an underpass crossing John Anderson Highway, between the two sides of the development, for example. Smith’s analysis rejects that of Mike Chiumento, the attorney representing The Gardens, who has argued that an overpass or underpass–as opposed to a crossing on the same level as the existing two-lane highway–was never a condition of the earlier development plan, and always a possibility, not a certainty. “If the Developer wants to omit the off-grade crossing at John Anderson Highway he has the option of requesting that change through an amendment to the PUD,” Smith wrote, referring to the Planned Unit Development application The Gardens submitted, “but accomplishing that change in the manner currently proposed is not consistent with the letter or intent of the 2005 PUD approval.”

Smith’s analysis begins with the usual intergovernmental courtesies of near-Victorian pretense (describing the letter as opening a “dialogue that continues the tradition of intergovernmental cooperation” and asking the county to “Please accept these comments and ideas as exactly what they are intended to be, helpful suggestions meant to inspire discourse”). But mixed with the flattery is an unmistakably assertive tone, at times setting out the Flagler Beach commission’s preferred conditions literally in bold italic type, and reflecting throughout Smith’s skill at analytical summations. He  distills issues to their essence with minimal jargon and fluid clarity, as when he discussed a central issue dividing The Gardens from the opposition: whether the development application should not be resubmitted instead of seeking to make a 15-year-old document seem still adequate today.

“The PUD zoning and Developer’s Agreement for the project under consideration were approved and entered in 2005,” Smith wrote. A PUD is a type of rigorously regulated development for which the land’s previous owner, Bobby Ginn, had won approval from the county in 2005. The current developer is proceeding under that 2005 agreement. “As we all understand, developing pursuant to an agreement entered fifteen years ago presents challenges. Conditions change, markets change, and, in this case, developers change. While the City recognizes that the instant developer,” Smith continued, “possesses the right to proceed pursuant the original PUD and Developer’s Agreement, the City requests that the County hold the Developer to the commitments its predecessor in interest made when securing those development approvals. The City hopes the Developer will not be allowed to “cherry pick” and keep all the components of the original approval that work to its benefit but beg relief from others. If the Developer wants to make whole­cloth changes to the development, the process for that is to seek amendment of the PUD. Your Technical Review Committee has stated the same. It cuts against the very purpose of a PUD to make large scale changes to the look, feel, and development patterns of a project while insisting any review of the existing entitlements is off-limits. PUD, after all, is an acronym for “Planned Unit Development” and you cannot have a truly planned unit development when the “plan” keeps changing.”

The analysis returns to that theme again and again: changes to the PUD may be fine, but not outside of a resubmittal for a new PUD, a step the developer wants to avoid because it entails reopening the door to negotiating a slew of issues while ensuring considerable further delays.

The drainage issue has emerged as one of the potentially most serious obstacles for the development given Flagler Beach’s increasing issues with flooding even outside of major weather events: rising seas mean that routine storms can cause flooding along the Intracoastal. The Gardens development plans to elevate itself with fill. But residents along John Anderson Highway are worried that The Gardens’ new elevation will mean more runoff down their properties, and more flooding–if not now, then in a few years as the inexorable sea rise redefines flooding patterns.

Smith’s condition, in bold italics, leave little room for negotiations: “No fill or grade shall be authorized or approved unless the Developer shows by competent substantial evidence, subject to independent review and verification by the County and comments from impacted neighboring jurisdictions” that the development’s fill “shall not alter historical natural water flows in a manner that will adversely affect any adjacent property or neighborhoods.”

The Flagler Beach commission was also not impressed by The Gardens’ “passive” response to questions about whether it will use the city’s reclaimed water on its golf courses or not, though the 2005 PUD had called for the developer to build a reclamation plant at the developer’s expense. “It is important to remember that the Developer’s predecessor in interest was a party to that Settlement Agreement and all of the obligations owed by the predecessor developer are now owed by the Developer,” Smith wrote, referring to the settlement of what was then colloquially known as the water wars, and that resulted in service-zone areas between Flagler Beach, Palm Coast, the county and the previous developer. “All parties involved in the Settlement Agreement fully expected the developer to take an active lead role in making sure reclaimed water was a reality by the time the project generated demand for water and sewer.”

Smith concludes on an  almost personal if rhetorical flourish, again sculpting flattery with a razor: “This Developer, as do most developers, has great creative vision,” he wrote. “I have never met a developer who did not get its hackles raised at least a little at ‘governmental intrusion’ into its creative vision. I have spoken to many after the ribbons were cut, though, that have said something to the effect of: ‘You know, I really didn’t like some of the things they made me do but, in retrospect, I think they made it a better project.’ Holding to our core values can sometimes be exhausting but it is always worthwhile.”

Flagler Beach commissioners spent more than an hour discussing Smith’s work but in the end made only minor stylistic changes and seemed impressed by the thoroughness of a document that barely a week earlier had been the mere outline of a commissioner.

“I think we’re in a good position here to move forward,” City Commissioner Ken Bryan, who was elected last March at least in part on the strength of his opposition to the development, said. “We know that we can’t stop development, and that’s not the position that we’re taking, but we want to make sure that the residents and Flagler Beach itself is not going to be hurt, and I’ll just use that terminology right there, we just want to make sure we’re not going to be hurt and we’re not going to be on the hook for a large expense in order to correct issues that may come down the road. It may not be next year, it may not be five years, but 10 or 15 years down the road we want to make sure that we made the right decision up here during this particular time frame.”

By Monday morning county commissioners had become aware of Flagler Beach’s coming conditions and wondered aloud whether those might not require the county commission to delay hearing the matter, now scheduled for Oct. 19. Adam Mengel, the county’s development director, said that won’t be necessary.