Flagler Council Rules Against Ginn-LA’s Proposed Development Order Amendments at a Special Session

Flagler County Commissioners decide that the Hammock Beach developer cannot build a hotel in front of its existing Resort

Palm Coast, FL – April 6, 2010 – Scores of spectators, most of them Hammock Beach property owners, showing their solidarity by all wearing light blue shirts, packed the chamber as the Flagler County Board of Commissioners dealt with a proposed land use change at a special meeting last night. When the 4-hour plus meeting ended, real estate developer Ginn-LA Marina, LTD, LLLP had been denied a request to amend the existing development order so that up to 561 rooms could be built between the existing Hammock Beach Resort and the shore. Ginn-LA is Bobby Ginn and financial partner Lubert Adler.

At issue was a Notice of Potential Change (NOPC) submitted by the Hammock Beach developer that would modify the Hammock Dunes Development of Regional Impact (DRI) development order. That DRI 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.

The process required by Florida statute requires the County Council to determine whether or not the requested amendments to the DRI represent a Substantial Deviation from the development order. The statute carefully prescribes what changes or "triggers" constitute a substantial deviation.

A finding of Substantial Deviation requires a resubmission of the DRI, a lengthy process requiring state level reviews and approvals. A determination that the changes did not constitute a Substantial Deviation allows commissioners to rule on the merits of proposed amendments immediately.

The Hammock Dunes DRI as approved by the Flagler County Board of County Commissioners March 30, 1984 entitled development of 6,670 residential units on 916 acres of the 2,245-acre property. The plan divided the property into clusters of developable areas and placed limits on the number and type of units allowed in each cluster. An earlier amendment reduced the total number of permitted units to 4,400.

Over time, some clusters were built out by the developer with lower density than allowed. Single family lots were platted where multi-story condominiums were permitted. As a result, when all the approved clusters were completed (platted), there were approved (entitled) but unused residential units left over. But the developer had run out of land on which to build them.

Essentially, the developer’s proposal creates a new cluster (cluster #35) at the end of 16th Road on which some of the leftover allocated residential units could be built. Ginn (not Bobby but Ginn-LA representatives) stressed that the reason for the request was simply to reaffirm their right to develop residential units that had already been approved by the development order to enhance the value of the property. They have no plans to build anything at this time.

Ginn originally submitted an NOPC a year ago but failed to first consult with property owners or County Commissioners, thus managing to offend both groups. That plan requested the reallocation of 1,147 units to a sprawling cluster 35 that impinged on the golf course and would have eliminated the practice area.

Consideration of the NOPC was deferred as the parties tried to find common ground. Owners were willing to trade their support of the NOPC for assurances that any new development would be scaled down, have minimum impact on the use and value of their properties and would not impinge on the golf course. What began to emerge was the concept of a plan that included substantial property owner input. It reduced the area of the proposed cluster 35 and reduced the number of residential units within the cluster.

The initial spirit of cooperation dissolved when Ginn declined to place any enforceable restrictions, other than height restrictions, on future development. The county planning staff was prepared to recommend with a few caveats that commissioners rule in favor of the Ginn-proposed DRI amendments. Ginn submitted the NOPC against the urging of property owners’ representatives for continued discussions. Perhaps Ginn representatives believed that commissioners would side with staff’s recommendation to accept the proposal.

The developer’s application requested 5 changes to the development order. The first two dealt with minor issues and would be approved easily. The remaining three were:

1. Creation of Cluster 35 with 561 residential units on property within the area platted and reserved for the golf course and related facilities. The existing lodge and beachside swimming facilities are within the proposed Cluster 35.
2. Mandate a Planned Unit Development (PUD) process for development of Cluster 35. The PUD process provides for public hearings and input.
3. Realignment of a portion of 16th Road.

The final two items were dependent upon approval of the new cluster. The heart of the proposal then was the creation of Cluster 35 on property platted for and deed restricted to development of the golf course and related facilities and open space.

Ginn-LA argued that a 561-room hotel was not incompatible with the golf course/open space designated use. They argued that they were not adding units, only relocating units previously approved. They could not be tied to a specific development plan because future business and market conditions were unpredictable.

Ginn has had a positive effect on the Palm Coast area. The Hammock Beach Club & Resort has over 500 employees who earned over $12 million in wages last year. $2.8 million in sales and occupancy taxes were collected in 2009. HB was the largest single bed tax contributor in Flagler County (42%). Between 2004 and 2009, Hammock Beach reportedly brought 100,000 guest/visitors to Flagler County. Various Ginn entities recently paid approximately $1.5 million in Flagler County property taxes. The Ginn case may have been bolstered if these facts were brought out, but they were not.

Representative of the Ocean Hammock Property Owners Association (OHPOA) and Condo Association objected to the developer’s claim. They came well armed with exhibits and testimony substantiating property owners’ claims that they had been promised there would be no further development between their property and the beach. Exhibits included notes from meetings between Ginn and county staff prior to the first NOPC submittal one year ago, letters of assurance from Ginn to prospective buyers, marketing materials, countless emails and letters from owners, and minutes of previous County Council meetings. The most dramatic was an excerpt of a video produced by Ginn to market the Ocean Tower Condominiums. 

<WATCH VIDEO>

View Exhibit "One Big House is Enough"

• County planning staff met with Ginn-LA prior to the first NOPC submittal as evidenced by meeting notes dated December ’08. Apparently the existence of these meetings was not transmitted to commissions at the time.
• Through the evolution of the project, approximately 30 acres more than the permitted 916 acres was developed without approval. It seems that the developer apparently mingled acreage between clusters and plats. As a result, over 940 acres rather than the approved 916 acres were actually developed. This overdevelopment went undetected by county staff.
• The golf course/open space area out of which cluster 35 was to be created is both deed and plat restricted. The restriction was used as a selling point to prospective buyers. The permitted limit of 916 acres has already been exceeded. There is no more land.
• Ginn could have built all the approved units on their land. However, the developer decided to put single family lots on land approved for 7 and 12-story high-rise condos (primarily in the Cinnamon Beach section). The problem of left over approved units with no place to put them is a problem of the developer’s own making.

By vote time, it was obvious which way the wind was blowing. In the end, the NOPC was found not to be a Substantial Deviation to the DRI. The proposed cluster 35 however was soundly defeated.

What’s next? The developer has indicated in the past that a legal challenge to a negative ruling would be pursued. However, last night’s proceedings revealed a strong and well organized opposition.