Flagler BOC didn’t ask the Right Questions at Special NOPC Meeting
Choosing to go to trial, commissioners ignored potential cost and legal merits.
Palm Coast, FL – December 3, 2010 – In a unanimous vote at last night’s special meeting, Flagler County’s Board of Commissioners chose to proceed to a December 15th trial rather than encourage further negotiations to resolve a dispute over changes to the Hammock Dunes Development of Regional Impact (DRI). Several months of negotiations between the developer and residents had not resolved the dispute. The chance that further negotiations would prove more fruitful was probably a long shot, making a trial inevitable. The BOC’s decision was expeditious, but was it wise? Commissioners listened to the disputing parties and asked questions for nearly two hours before their unanimous vote. But two very important questions remain unanswered because they were never asked.
Background
The original development order was approved in 1985 and provided the framework within which up-scale Hammock Dunes, Island Estates, Yacht Harbor Village, Ocean Hammock, Cinnamon Beach, and Hammock Beach were developed. Because of its scope, it was designated a Development of Regional Impact (DRI). DRIs undergo a higher level of review than do smaller developments. They require regional and state level approvals. Minor changes or amendments to the Order can be approved at the local level so long as they are not "Significant." Significant Changes trigger a new round of state-level review.
April 5th, the Hammock Beach developer failed to get approval from the Flagler BOC for a requested DRI change. The developer wanted to amend the development order to allow residential units authorized by the original development order but not built to be reallocated to a newly designated area on property zoned for the golf course and associated facilities.
At that time, the developer was Ginn-LA (Bobby Ginn and financial partner Lubert-Adler). The application for the NOPC was a stealth operation. Ginn-LA did not alert residents. Nor did County Staff alert Commissioners. Commissioners and residents alike responded negatively to the blindsiding. Commissioners postponed the agenda item while Ginn-LA and a group of residents attempted unsuccessfully to forge a consensus.
The Issues
The original question was fairly simple. Was the requested change "significant" enough to trigger a detailed DRI review process or could the matter be dealt with locally? It soon became a more complex and emotional issue.
Hammock residents wanted to know where the units would be built. What types of units would they be; condos, hotels, town homes? How big would they be? How high would they be? Would the new building(s) obstruct the views residents currently enjoy? How far would they be set back from the beach? To what extent would the golf course be impacted? When would they be built, etc., etc.?
These issues are typically not raised until a developer applies for building permits. A permit application of the magnitude contemplated at Hammock Beach would trigger a whole series of planning and code compliance reviews and public meetings. But given Ginn-LA’s prior record, there was a high level of distrust among some residents. They wanted to pin the developer down now.
Ginn is not longer involved. Lubert-Adler has taken control and restructured Bobby out of the picture. [Story] The developer’s new name is Legacy Resort Assets (LRA), but residents’ distrust persists. A division of Reynolds Plantation acts as LRA’s authorized representative. LRA appealed the April 5th decision.
Coming to a head
The appeal process reached a critical point. The trial before an Administrative Law Judge is scheduled to begin December 15th. With developer/resident association negotiations stalled, LRA proposed a Settlement Agreement to the county, prompting last night’s special meeting. The BOC had to decide to:
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Postpone the trial and rely on negotiations based upon LRA’s proposed settlement agreement.
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Proceed to trial.
Several environmentalists and Hammock residents addressed their concerns to the BOC. Commissioners noted before casting their vote that these individuals had elected them to be their representatives, acknowledging that they had an obligation to look out for the voters. Some commissioners said that the developer would be reneging on promises or representations upon which the residents relied when they purchased their property. That posturing made good political theater but overlooked two important facts.
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Trials are expensive.
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This is a matter of law.
The Administrative Law Judge will not base his ruling upon the developer’s broken promises or the appropriateness of building size, shape, location, intended use, etc. Nor will his ruling be based upon matters of taste or of emotion, or potential blocked views. These are important issues, but this is not the appropriate venue for them. His ruling will be based on matters of law. Under the law and based upon the transcript of the April 5th quasi-judicial hearing and the evidence presented there, did the BOC act properly when they denied the developer’s April 5th request?
The two questions commissioners never asked are:
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What are the potential costs a trial and anticipated appeals?
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Emotions aside, and given the merits of the BOC’s case, what are the possible and likely outcomes and consequences?
I, for one, am hesitant to hand my checkbook over to the lawyers without knowing what my chances for a successful outcome. As the elected representatives of ALL the taxpaying voters of Flagler County, the BOC should have asked these important questions. Their vote may have been the same, but they should have asked.
Broken Promises or Greed?
In my view the effort by LRA will depend on whether the BOC has reneged on its commitments, made in writing and agreed to by LRA’s predecessor in 1985. To prove its case, LRA will have to show that there is still acreage left to develop in the DRI and will have to show that the proposed site is not deed and plat restricted as a Golf Course or other recreational area. All records show the OVERDEVELOPMENT OF allowable acreage, and that the new Cluster 35 is smack dab in the middle of the 9th Hole at Ocean Hammock Golf Course. I commend the BOC for holding to its previous vote denying the NOPC changes. When you’re right, you’re right. LRA’s only ammunition is the threat of legal expenses. Its Bluff should be called.
Surprised at the tone of this article.
If you know a person cannot be trusted would you trust their partner? I wouldn’t.
If you can be bullied by the threat of a lawsuit you will be over and over again. Are you saying the residents of OH should just roll over for LA?
I usually agree with your opinion but not on this one.
I think the residents of OH are doing the right thing by defending their interests.
DRI
My personal opinion is that it was approved in 1985 by all the authorized governmental parties. Even though it may not suit everyone at the present. All parties involved should stop where they are and work it out. I am sure that there are a lot of citizens in Flagler County and else where in these great United States that get so fed up with elected officials listening to the FEW Loud mouths and making decisions that affect all the other citizens.
Be careful what you wish for!!!
I have commented before on this issue and my opinion hasn’t changed!!! I have a vested interest in the outcome of this battle, being an owner of property and a golf member. However, the homeowner groups better be careful what they wish for as it is my belief that if LRA or Reynolds doesn’t get more density and the opportunity to build a hotel, then this resort will never be what it was meant to be and it could possibly become a "white elephant". A "world-class" resort with a major hotel operated by Ritz Carlton, Four Seasons or other prostigious brand would be just what this county needs to move it forward economically and draw many more tourists and vacationers. Flagler county is a lost cause if we can’t make Hammock Beach into a successful vacation destination. Currently, it is our only significant draw and it is what we need to build off of. Looking at this situation from a "macro-view", we need to make the decision that puts us in a position to grow for the future. Do what is in the best interest of the majority and not the few!! LRA and Reynolds are not stupid, they are not going to do something to the golf course or the resort which will make it worse. There will be some owners who will be negatively affected, but, that is the price of progress!!
Third Question and…
Third Question:
What about the Federal REDRESS Amenities/Features/and advertised ‘Tropically Landscaped’ Acreage there pursuant the Levitt ITT pledged Amenities and Federal Trade Commission ‘Consent Agreement’ C-2854 as REDRESS for us Palm Coast Pioneers and other early Palm Coast purchasers?
Aside: * Wouldn’t the ‘height restrictions’ & ‘density requirements’ recorded by Levitt I.T.T. for us help with the height and density issues along with the terms and conditions of the original required ‘Architectural Committee’ requirements?
* Palm Coast Restrictive Covenants and Easements of the Public Records of Flagler County, Florida.
A thought, ask, Sheraton, or another first class Hotelier about the possibility of restoring their original Design back for Heritage and Historical Purposes since it was an integral part of our Palm Coast ‘Community Development’ and also components of the required official ‘Guided Tour’ offered by ‘The Company’ as reflected in our Florida Public Offering Statement.
For the newer Palm Coasters , The Palm Coast Sheraton / Resort redress Amenity for us was in one word:
Spectacular! We have jpegs of it on one our Webpages should anyone want to see them.
Hopefully this ‘Historical Recreation’ will be considered since with it comes the height and density restrictions that should make alot of people happy and avoid costly litigation.
‘ Old Mission Style ‘ Design
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The ocean is just a few steps away. Also close by is the Intracoastal Waterway, which offers good fishing, boating, and waterskiing. On the Inn grounds, there is a large free form swimming pool surrounded by sundecks. Close by are two tennis courts which will soon be lighted for night play.
Just a short ride by boat is an 18 hole championship golf course, the Palm Coast Golf Club. ( using the ‘Boat to Golf’ Dock at the Golf Course)
The Golfers’ package includes unlimited play at the Palm Coast Golf Club, an electric cart, a gift package of golf balls and a complimentary bucket of practice range balls daily at the Pro Shop. At the Inn, the cuisine is superb in the Coquina Room or Cafe del Mar. The newly completed Beachcomber Bar, located beside the pool, offers the finest in mixed drinks and sandwiches. Dancing and nightly entertainment are popular in the newly decorated Jon-kanoo Lounge. For a slightly different atmosphere the visitor can also eat at the
Palm Coast Yacht Club across the Intracoastal Waterway.
Sightseeing is a must at nearby historic St. Augustine and Marineland, and Daytona Beach, is just a shosrt drive for shoppping or touring. For the young at heart, Walt Disney World is approximately 98 miles away.*
The Palm Coaster, Summer 1978, pp. 10-11.
NOPC
Unfortunately your article completely misses the most relevant fact and issue. YOU didn’t ask the right question. The original Development Order, deed and plat addenda prohibit the development of anything other than golf course facilities, recreational facilities and/or parks on the 190 acre golf course property. The owner/developer fully understood this when it was one of three developers of the community and when it acquired the golf course property in December, 1996.
This is the basis upon which the entire community was developed and which the property owners and other Hammock residents have relied upon to protect their property rights, their values, the oceanfront dune environment and the public park access. The county commissioners should be commended for their strong support of the land use criteria established in fact and in law. It is the developer/owner that is creating additional and unnecessary costs for all residents of the community and Flagler County.
The right questions
I am the individual who sat across from Mr. Allhoff most of the last six months, attempting to negotiate an agreement that would allow the developer some latitude to expand, and at the same time, minimize the impact on all Hammock Beach residential owners. The developer would have you believe that it negotiated in good faith with the associations to reach common ground, and from their perspective, maybe they did. However, their non-negotiable parameters far exceeded what was necessary for them to become profitable and attract monied investors. Their demands regarding footprint and height limitations, their insistance on "fractional ownership", and their constant use of interpretational language made any deal abhorrant to the residential owners. Mr. Allhoff stated it correctly at the commissioner’s meeting when he said a deal was not possible. But it was because the developer wanted far too much, and far more than it needed. On another point, your chastisement of the commissioners for not considering fully enough the financial costs of this fight was unfair. Many outside Hammock Beach enjoy the beach at the end of 16th Road and do not want to see that area lost to them. And besides, money is properly spent all the time in government that is compartmentalized to benefit less than the whole. One does not destroy a park because only a small percent of the residents use it. And, finally, one does not back down when right. And in this fight, the FCBC and the Hammock Beach residential owners are in the right. Jack Fretz
and More Questions….
PALM COAST RESORTS ARE PICTURE PERFECT
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Seeing is believing, so we shall let pictures do most of the talking.
—–>A pelican’s view of a people’s paradise…the Palm Coast beach, and new beach club, <—– a place in the sun for vacationers and residents.
The Sheraton Palm Coast Resort and Palm Coast Marina…early evening.
The Harbor Club vacation ownership resort…Villas surrounding Oak Tree Island.
You’ve seen the photographs. Now see the real thing. For Harbor Club sales information—vacations for a lifetime–contact your nearest Palm Coast sales office or call toll-free 1.900.874.1828 and ask for the Harbor Club at extension 870.
To reserve your waterfront room at the Sheraton, call 904. 445.3000 and ask for the Harbor Club at extension 870.
Palm Coast property owners can arrange for a holiday through area sales offices
The PalmCoaster , Winter 1988, pp. 10-11.
Fools
The commissioners of Flagler County are in on it. They knew from the begining that the NOPC was going to be brought to a hearing. They are puppets just looking for votes. They will say anything to keep there postions. Flagler County needs employment. I know that COSTCO is looking for 18 acres in our area. Get jobs in our area, that is the bottom line. Who cares if a few people are affected. Let’s see expansion. There are a lot of people out of work. Wake up.Why not try to get Bio Tech in the area. What about getting direct flights into Daytona from the North East. Wake up!
Reply to George G
I may not have done a super job of getting my main point across. I did not intend to side with either the developer or the residents.
My intended main point was that regardless of the merits of either side’s argument, the ALJ was going to rule on the merits of law, not on the emotional components.
I think that any party contemplating a major lawsuit should take into consideration the expected cost of the lawsuit weighed against an honest analysis of the expected outcome(s) and consequences.
It was the BOC’s duty to ask questions that would help them make that analysis. Had they done so, their vote may have been the same, but they leaned towards a political motivated decision instead.
Frankly, I applaud the residents’ participation and willingness to negotiate with the developer in the first place. They did not start out with a binary attitude.
By the same token, the developer demonstrated a willingness to negotiate. Had the developer and county staff avoided their initial stealth strategy, the outcome of negotiations might have been more fruitful. The parties would have been less likely to draw lines in the sand.