Flagler Beach Advances Veranda Bay Annexation and Seeks Resolution of County’s ‘Bobbing and Weaving’ Threat to Sue

The Flagler Beach City Commission late Thursday night voted 4-1 to approve on first reading the annexation of Veranda Bay, along with two related votes on zoning and the city’s comprehensive plan. 

It was tortuous, as all things Veranda Bay have been since 2019. “Reminds me of the movie Groundhog Day,” developer Ken Belshe said in his preface to a three-hour discussion before the votes. 

The votes are more like placeholders than indications of a done deal because the County Commission is threatening to sue Flagler Beach over both the Veranda Bay annexation and the Summertown annexation the city approved two weeks ago. The city won’t approve the annexation if litigation follows. 

“If every time someone threatens to sue you, you fold, you train people to do that,” Belshe told the commissioners. “You get a reputation, or I would get a reputation for that. All you’ve got to do is threaten to sue him and he’ll give you whatever you want. So I’m not sure where even this is coming from.” 

The county is disputing the  545-acre Summertown annexation over compatibility and utility issues. It is disputing the Veranda Bay annexation over signatures the county says the developer has not produced to show that all existing homeowners at Veranda Bay agree to annex, as required by law. 

City commissioners were very nervous about approving an annexation with the county’s threat looming over the city. They finally agreed to vote for it with a gaping caveat that, depending on the county’s legal moves, second reading will either not happen or may happen with the 122 existing homes at Veranda Bay carved out of the annexed zone. 

The County Commission is meeting on Jan. 28 to discuss its options. 

The signature issue is straightforward: have the existing homeowners at Veranda Bay signed onto annexation or not? Belshe says they have. All homeowners there signed their deeds with the understanding that Veranda Bay would annex either into Palm Coast or into Flagler Beach. 

“I was assured by many attorneys that this was not an issue and it was never an issue for Al Hadeed,” the former county attorney, Belshe said, “and it was never an issue for anyone else before at the county.”

Sarah Spector, the assistant county attorney, said state law “specifically requires that you have the signatures of every owner within the area to be annexed. The ordinance you have before you for approval said that you have those signatures in hand. We’ve requested those, and I’ve not seen those.” There are 122 homeowners at Veranda Bay. Spector, citing a 2005 Attorney General’s opinion,  said the law does not allow a condominium president to sign on behalf of the individual owners. 

Chiumento said the County Commission has not taken action on the matter, only the county attorney has. The commission hasn’t taken a formal vote on it, but it has directed the county attorney to move in that direction, in preparation for a discussion and possible action following a Jan. 28 workshop. 

Michael Chiumento, one of the attorneys representing Veranda Bay–Jay Livingston is the other–disagrees with the county. “We’ve done our research. I know Drew has opined on the matter,” Chiumento said, referring to Drew Smith, Flagler Beach’s city attorney. “The prior county attorney that has been before you had opined also. So now this county attorney has a different opinion. You might jokingly say, five lawyers, six opinions. So it’s just where we’re at.”

Smith said the Attorney General’s opinion was in response to a homeowners association meeting where the membership took a vote on annexation, “which is very different than a deed restriction that you are agreeing to the minute that you close on that purchase,” as is the case at Veranda Bay. “From the time that you’ve owned that you have given away a right, and that’s what that deed restriction accomplishes. That said, I would agree with both parties that this is a novel issue. It has not been litigated. There is no court opinion. Attorney General’s opinions are opinions. They are not precedent. So until the court has ruled, we cannot say what a judge says.”

City Commissioner John Cunningham considers it “foolish” to move with the annexation without an answer one way or the other. “I think we should wait until there’s a concrete ruling on how it’s interpreted,” he said. But that’s not how it works, Smith said. There is no way to get to a ruling without litigation. 

Commissioner Scott Spradley is just as opposed to moving with annexation with the threat of litigation looming. “If we were here on second reading tonight, I would have a lot of difficulty in supporting annexation with the level of uncertainty that there is,” Spradley said. The January 28 meeting of the County Commission will give him more clarity. If the “prospects of litigating are extinguished,” then he’d approve. “I am glad we’re not on second reading right now, because that would really cause trouble for me. “I’m just hoping that whatever the outcome is tonight, that there is something positive, concrete and with finality that comes out on January 28.”

Commission Chair James Sherman sees it the same way. Belshe then suggested pulling the 122 Veranda Bay houses out of the annexation area. But it would be lost revenue for Flagler Beach, with 122 million-dollar houses no longer on the tax rolls, he said. The change would alter the city’s zoning and comprehensive plan analyses, requiring those ordinances–which were to also be voted on Thursday–to be tabled. Commissioner Rick Belhumeur made a motion to that effect. But in the end the commission voted on Commissioner Eric Cooley’s suggestion to proceed with approvals of the proposals as presented–annexation, zoning, comprehensive plan change–on first reading. 

“It gives county time to state clearly where they’re at, and it also allows us to state clearly where we’re at,” Cooley said. “One of the things that I am frustrated about is, I see from the county side a lot of bobbing and weaving. And this applies to more than just this project. This applies to the beach and all these other things.” 

There was related discussion on the county’s challenge over the Summertown annexation and utility issues, which Chiumento said was settled with a joint agreement between the county and the city years ago, ceding the utility area along John Anderson Highway to Flagler Beach.

The Veranda Bay development includes Marina Village, 155 condominium sites, a 150-slip marina, a ship store, a restaurant as part of 16,000 square feet of commercial space, and 100 new home sites for a total of 377 residential homes, when the 122 already built are included. 

R.J. Santore, a candidate for the commission in the March election, asked for all annexation items to be tabled to enable the public and the commission to better evaluate the proposal, especially with possible litigation ahead. John Tanner, the John Anderson Highway resident, an attorney and the representative of Preserve Flagler Beach and Bulow Creek, the nonprofit that has largely opposed the annexation, said it would not be “a cure-all for everyone’s need for money.” Rather, residents are picking up the cost of a nearly $50 million sewer plant. But Tanner did not have a specific objection this time. 

Others raised concerns about buffers and cut-through roads on John Anderson Highway, and mentioned the existing, unused marina just north of the bridge on the Intracoastal–the Howard Sklar property. “Do we have capacity for two marinas in the city?” a resident asked. 

See the meeting materials here.