- April 26, 2024
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County commissioners rejected an appeal by opponents of a controversial proposed development off John Anderson Highway on Sept. 9, finding that the process by which the development reached the county's planning board wasn't improper.
"Mr. Tanner’s arguments, every one of them, is valid. ... I enjoin Mr. Chiumento and his party to take a hard look at those, and fix them."
— GREG HANSEN, Flagler County commissioner
But while they ruled against the development's opponents on technical grounds, commissioners warned the developer to take note of critics' concerns and address them before the proposed development, called The Gardens, reaches the commission again for a decision on the development itself.
Attorney John Tanner presented the appeal, representing a grassroots organization called Preserve Flagler Beach and Bulow Creek.
He argued that county Growth Management Director Adam Mengel had acted improperly when adding the proposed 335-home development to the planning board's agenda.
The Gardens proposal had first gone before the county's Technical Review Committee, which went back and forth with developer Ken Belshe and still had some unresolved issues when the committee, which Mengel chairs, opted to move the proposal forward to the planning board.
County Attorney Al Hadeed told commissioners that it was not unusual for a proposal to move forward when some issues remain outstanding.
But Tanner said it was improper — "passing the buck" — and that the outstanding questions should have first been resolved. He argued that Mengel, not the TRC, had moved the item to the planning board, and that he was appealing Mengel's decision, not the TRC's.
"This project is so raw, or green, that the planning board should never have had to look at it," Tanner said.
He said that Belshe was trying to present the development as falling within a 2005 Planned Unit Development in order to avoid 2011 county comprehensive plan floodplain regulations.
Meanwhile, he said, the area already has a flooding problems, and other homes along John Anderson Highway had fish in their yards during the most recent hurricanes.
There should also be an independent traffic study conducted on the proposed development's impact, he said, and that has not occurred.
And, he added, the developer has marked some land within the PUD area as set aside "for future development," contradicting the requirements of a planned unit development. The undeveloped land, Tanner said, should be deeded to the state for a park.
“There's just way, way too many unanswered questions," Tanner said. "This county needs to protect its people. ... Sometimes, private property rights have to give way to the public good.”
Michael Chiumento, the attorney representing the developer, said objections to the details of the development itself were immaterial to the grounds on which Tanner had appealed.
"What you just heard was all their problems with the development — and that's fine, that will come," Chiumento said. But, he added, "this is an appeal that somehow Adam [Mengel] made a determination that was improper."
Mengel said his role in moving the item forward had been ministerial: The TRC had made the decision as a board, and he'd been involved only in the technicalities of placing the item on the planning board's agenda.
The Planning Board heard Tanner's appeal in August, and denied it.
Commissioner Donald O'Brien said he believed Tanner had made a number of excellent points about the development, but said he didn't see support for Tanner's argument about the propriety of the process that brought The Gardens to the planning board.
Commissioner Greg Hansen agreed.
"Mr. Tanner’s arguments, every one of them, is valid," Hansen said. "I enjoin Mr. Chiumento and his party to take a hard look at those, and fix them."
