Developer gets county's go-ahead for two new developments on A1A
The Flagler County Commission has given its approval to two developments that will bring 190 additional homes to the north and south of the Lakeside By the Sea development off State Road A1A.
The commission at its Jan. 22 meeting approved the two developments, called Los Lagos and Las Casitas, in a series of five votes.
The hearing for the five agenda items proceeded over the course of several hours as Lakeside residents repeatedly took the microphone during the meeting's public comment periods to speak against the proposed developments, which they feared would exacerbate drainage problems in their own community, where streets flooded during Hurricanes Matthew and Irma.
The proposal for Las Casitas involves paving over a stormwater pond called "percolation pond 3," or "perc pond 3," and putting homes in its place, which residents said would flood both the new homes and the existing Lakeview homes. The new homes would also be built at a higher elevation than the Lakeside community.
A group of Lakeside residents showed a slide presentation about their stormwater drainage fears, featuring photos of streets flooded by the hurricanes.
"Those pictures scare me," said resident Megan Tobin. She said of the new developments, "It's not a community; it’s going to be all homes. It's going to be overcrowded and overburdened."
Other residents raised concerns about the land transfers and homeowners association votes that preceded the plans for development — such as the conveyance of the land on which perc pond 3 sits to developer Duval Realty for $10.
"We have a real issue with this perc pond 3, which you've heard about," said attorney Dennis Bayer, representing the residents. "They jury-rigged an election, we weren't allowed to vote on it, there was no hearing but they did an email vote. Sea Colony got to vote on this project and the giving up of perc pond 3, but my clients, who'd be the most directly adversely impacted, were completely precluded from the vote. ... Should we sue on the way the vote was conducted, I think there would clearly be a cloud on the title as it related to perc pond 3."
Other residents said they were concerned about the existing wastewater treatment plant's capacity to handle the increased load from the additional homes.
The developers said that their plans mitigated the removal of the pond with other drainage solutions, and that the state Department of Environmental Protection, which deals with stormwater permitting, has already approved the development's stormwater plans.
"I’m kind of ashamed of all of you for not settling this before you got here," Commissioner Greg Hansen said to Duval Realty attorney Sidney Ansbacher and the residents who opposed the proposed developments.
But ultimately, many of the residents' concerns about stormwater were beyond the purview of the County Commission, and commissioners could not take residents' non-expert opinions about stormwater issues into account when making a decision, explained County Attorney Al Hadeed.
"The board members, they have to make a decision based on — you heard this phrase, it's very important, it means a lot — competent substantial evidence," Hadeed said. "If something is not competent substantial evidence, they are obligated to ignore it. Just like you see in a Perry Mason trial, where the judge tells the jury, 'Ignore that.' They have to do that as they sit there. It is their obligation to understand the facts as best they can. So they are permitted — in fact I would say they are obligated — that if they're not exactly sure about something that's said, they are obligated to ask questions to get to the bottom so they can make a decision that's lawful. ... If we make a decision that's unlawful, whether it's prompted by a lot of people or an applicant who doesn't present their case properly, then we are liable, the taxpayers are liable, we have to spend money if we are sued and we make an unlawful decision. ... The issue is whether, based on competent substantial evidence, (the development) meets the requirements of the code."
The county's own planning director, Adam Mengel, had found that the projects did meet the requirements of the county's code. He recommended approval.
County Commission Nate McLaughlin noted that the developments would decrease the potential density for the area.
"It’s unfortunate in my mind that we’ve got these two cloudy things going on," McLaughlin said, referring to the concerns raised by Lakeside residents. "But I think I’ll just stick to what we have the authority to make a decision on, and hope that the other agencies do their job."