It was that kind of paralyzing decision, and in the end, there was none: Flagler County Commissioners didn’t want to take action.
When Commission Chairman Dave Sullivan asked for a motion on a proposed development application by The Gardens, the once gargantuan, now scaled back, 335-home development proposed for either side of John Anderson Highway, he heard silence.
The commission Monday evening had been at it nearly six hours, most of it hearing arguments and evidence for and against The Gardens, with developer Ken Belshe and his attorney, Michael Chiumento, on one side, the grass-roots group Preserve Flagler Beach and Bulow Creek and its attorney, John Tanner, on the other, and innumerable speaking segments by residents and the principals along the way.
The proposal in various forms–with an original version that envisioned nearly 4,000 homes and apartments and high rises–has been at the forefront of development issues in the county since the winter of 2019, when it revived an earlier version once submitted by developer Bobby Ginn in the middle of the last decade. The renewed proposal struggled through public meetings and the county’s various regulatory steps.
The appearance before the county commission Monday was a key test of the so-called “Planned Unit Development”’s viability in the eyes of commissioners as presented. Opponents have long argued that the PUD should have been resubmitted as an entirely new PUD application. They consider the 2005 version no longer applicable. The developer disagrees, saying he’s abided by all requirements. Opponents have argued that even the county’s Technical Review Committee and the county’s attorney handling the application have found several shortcomings that have yet to be addressed.
And so: that silence.
It was broken by County Attorney Al Hadeed: “You have to take an action. Somebody has to make a motion,” he said–the choices being to table the matter, to grant the application, to grant with conditions, or to deny it outright.
Commissioners tabled it on Commissioner Greg Hansen’s motion and a unanimous vote. They had already signaled their displeasure with the proposal when the commission had last met and addressed a procedural appeal from Tanner. It’s not yet clear if all that is posturing or delay on the commissioners’ part, to placate opponents of the development in a heated election season. Commissioner Don O’Brien faces two independent opponents on Nov. 3, and opponents represent a potentially substantial voting bloc that radiates over Flagler Beach, whose residents are fearful that The Gardens will lead to more expensive utility bills.
The commission will re-hear the matter on Oct. 19, pending clearer answers from the developer on the “shifting” of houses from one side of John Anderson to the other; the question of water and sewer availability from Flagler Beach (the city that would provide both services), though that matter has been largely settled, with the city saying it will provide both, at least to Phase 1 of the development; and especially, the question of a bridge or a tunnel under over or under John Anderson Highway.
That became a serious and tense sticking point that Sullivan called “not an outlandish request,” but that the developer says is not required by the current PUD. Opponents–and commissioners–disagree. (“I would definitely want to see commitment to the overpass over John Anderson,” Commissioner Don O’Brien said, joining Sullivan, without objections from the others.)
Hansen also wants to hear more answers on traffic on John Anderson, on water management, and on when the development will use Flagler Beach’s reuse, or recycled, water, though that’s not the developer’s issue so much as the city’s: the city has no plan. (“We cannot say we’re going to give The Gardens reuse water when we don’t have the means,” Flagler Beach City Commission Chairwoman Jane Mealy said.)
Sullivan said he had problems with the proposal. Recognizing the developer’s property rights, he said, “the problem is, there are going to be people that come and live here, and right now there’s a large group of people who are in the area now who aren’t happy about this. And it seems to me–this is going to be here for 50 years, this development. So it seems to me we have time.” He said it was “important that the community accepts this at some point because we want to be good neighbors and we want to get along. I also feel that developers can probably do a better plan on how to set up this area rather than just do haphazard, everybody buys a house and builds a house, so on and so forth. But my feeling is, it needs a little more time to bring everyone together.”
Chiumento said that was “critical,” and it was happening, even if not with people who were in the room at the time.
“I just don’t see John Anderson handling the traffic,” Commissioner Greg Hansen said. “You can tell me that it will. But you’re going to add almost 400 homes, and you’re going to have every one of those people emptying on John Anderson Highway.”
“But that doesn’t mean it doesn’t meet the standard,” Chiumento said of John Anderson’s ability to handle the traffic, based on rules set by the state and the county, though a supplemental traffic study will not be necessary until the next phase, not the current proposed phase.
There’d been tense moments in the five-hour odd meeting, one of them illustrating a recurring sticking point at the heart of the opponents’ claims: whether or not the developer is responsible for over- or underpasses crossing John Anderson. The county contends that yes, the developer is responsible. The point was made by Sean Moylan, the assistant county attorney handling the application.
Chiumento cross-examined Moylan, first asking him how old he was in November 2005–snapping his finger as he did so, when Moylan, as did others, chuckled at the question, which had nonplussed him. Moylan was 29, just starting law school, Chiumento’s point being that Moylan was not at the county commission, witnessing what it was doing in 2005 regarding the Planned Unit Development. Moylan testified he relied on the minutes on the PUD document recorded.
“So other than that you have no knowledge of what the commission did and didn’t do?” Chiumento asked him.
“Correct,” Moylan said.
“It’s upsetting to hear that,” Chiumento said moments later.
“We are here for nothing more than to determine if the proposed site plan is consistent with the PUD,” he then continued. “We’re not here to re-litigate what happened in 2001, 2003, 2005, 2011, 2012. It’s the only reason we’re here. We’re not here to talk about whether the plan is a good plan, a cool plan, we’re not here to talk about whether the trees are saved,” or other such matters.
He then addressed the issues raised at the county’s Technical Review Committee and by the group opposing the development. Among those were the development’s consistency with the comprehensive plan, the contention by Tanner that the PUD should be resubmitted as a new application, the claim that the development will ensure that there will be enough space in schools to account for the new students the development will generate, and the access issue to John Anderson.
That’s when Chiumento challenged Moylan directly.
“‘Not approved to have direct access to John Anderson–’ I have to tell you, I think you can tell I’m a little hot, because I’m going to say it straight,” Chiumento said, referring to Moylan. “Your attorney did not represent to you the entire facts as to this issue. OK? We know that he wasn’t there, and we know that he relied on the minutes and he relied on the agreement. What bothered me most about this presentation is when you turn to Section 5.5 of the agreement, he showed you the first sentence where it says ‘access to the project shall be provided from the following public ways as generally depicted on the conceptual site plan,’ which you have in front of you. State Road 100 and John Anderson Highway. And here’s what he didn’t tell you: the very next sentence, or two sentences down, it says: the developer may also–so in addition to those–may also provide below grade and aerial crossings over John Anderson Highway for internalization and circulation of traffic and services.’ I can’t imagine why he didn’t tell you that the PUD said ‘may also’ in addition to the access to John Anderson and State Road 100. Why?”
He goes on to discuss the minutes of a Nov. 7, 2005 county commission discussion of the matter, and a motion in which the commission adopted the PUD with the word “may,” not “shall.”
“So to suggest that when he says the only access was at 100 and Colbert, that is just patently false and a misrepresentation of the record,” Chiumento said.
After a recess, Tanner addressed Chiumento’s claim against Moylan: “I’ve knocked around the criminal courts for a lot of years, and I can count on less than one hand the number of times that I’ve seen a lawyer stand in court and challenge the credibility of another lawyer like I saw today,” Tanner said. “I don’t know what’s that worth but I have to answer that. He said that somehow Mr. Moylan was misleading this board deliberately and I think that needs to be addressed.” Tanner restated the issue of access to John Anderson, and the disagreement over “may” and “shall” regarding the crossing. To Tanner, the qualifier is not about whether there should be a crossing, but what kind of crossing it should be.
“What that word means to me, ‘may,’ is it may either be below grade or may be aerial,” Tanner said, meaning the crossovers may either be tunnels below the road or overpasses. “The reason I think that interpretation is valid is if you just look at some of the surrounding documents, virtually every early map said: overpass or bridge at the selected point, and every single road traced went right through the west section to Colbert Lane. They even said signalized traffic had to be provided, and that was the plan.”
If there was any doubt as to the certainty of a bridge or an underpass being part of the deal, Tanner said, he cited a $5.5 million bond to secure the construction of a bridge. The money was returned when the then-developer, Bobby Ginn, vacated the plat. “I don’t know if anyone remembers Bobby Ginn, but I guarantee, he wasn’t building a $5 million overpass to be friendly,” Tanner said. “He was doing it because that was part of the deal. That was the deal. Every map.” And that was back when the county had far fewer residents.
“This is not a golf course community. This is a bunch of ‘we don’t know what we’re getting,’” Tanner said.
There were several Gardens-related items on the agenda, all drawing similar votes. Commissioner Joe Mullins voted on all of them even though he is represented by Chiumento’s law firm–by Chiumento directly on some matters, by another attorney on other matters. A resident–the husband of Jane Gentile-Youd, the frequent critic and former opponent of Mullins’s in the election two years ago–raised a question to County Attorney Al Hadeed about Mullins’s potential conflict of interest.
Hadeed said a “substantial gain or loss” by Chiumento or Mullins would have to be shown as a result of the matter before the commission for a conflict to be present. It “has to be immediate, it cannot be based on a hypothesis,” Hadeed said, and unless Mullins “states he’s going to realize a gain or loss, then he doesn’t have to recuse himself.” He did not, and took part in all the votes, though his participation either way would not have substantially changed Monday’s outcome.