It’s not on Tuesday’s agenda of the the Palm Coast City Council meeting. But the council is almost certain to discuss, for the first time, the threat of a lawsuit by the developer of Cascades, a 375-acre planned development at the south end of Seminole Woods Boulevard.
The council in November 2023 approved the development, but more than halved the developer’s requested density. Douglas Property and Development operating through a subsidiary called Byrndog PCP, sought to build 416 single-family homes and 434 apartment units for a total of 850 housing units. The council approved only the 416 single-family houses, killing the apartments. It did so weeks after the council had approved on first reading a land use change hat would–and in the developer’s view should–have cleared the way for all 850 housing units.
Public opposition from Seminole Woods neighborhood built quickly and pressured the council to reject the rezoning. Faced with opposition from about 18 people who addressed it, often in bitter terms, and occasional through dog whistles critical of apartments (some residents claimed without evidence that apartment buildings would loom over their properties and violate their privacy), the council did so on second reading of the ordinance, and affirmed the vote at a subsequent re-hearing requested by the developer.
The developer had no reason to expect the reversal, though it’s notable that when it came time to vote, then-Council member Ed Danko asked Michael Chiumento, the land-use attorney representing Byrndog, if the developer was willing to drop the apartment request and stick with the single-family homes. In a sense, Chiumento agreed, with a door left open for the future: “So I guess what would make sense to me is to agree and to amend the zoning application to just place single family residential on the entire property,” Chiumento said. “And then we would come back and deal with phases into the future.”
Residents who had just lambasted the developer and the council now cheered them, and the 3-1 vote went through. The council thought the matter settled.
Exactly a year later, Byrndog sent a claim letter to the city under the state law, commonly known as the Bert-Harris Act, that gives property owners the right to claim monetary damages if they can prove that a government action–like a rezoning–infringed their development rights. The next step would be a lawsuit. But under the law a claim letter must come first. It must also give the target agency 90 days to respond.
Byrndog is making a claim for $12.2 million. The sum is based on an appraiser’s evaluation of the prospective revenue lost by eliminating the apartments from the equation.
Only one council member who was part of the 2023 vote is still on the council: Theresa Pontieri. Pontieri had led the opposition to the higher density, and remains committed to the 2023 vote. She has spoken in the past about the city needing to make land-use policy based on its own interpretations of the public interest rather than from fear of litigation. But public interest in this case can be interpreted very differently: the city remains in desperate need of apartment units, and higher densities by way of apartment buildings reduces sprawl, which single-family homes generate.
On the other hand, public opposition to development has been intensifying for several years. The reason only one council member remains from 2023 is that the others, all of them more favorably disposed toward development, have either resigned or been defeated in further electoral bids, while a man who built a campaign on an anti-developmen theme–Mike Norris–was elected mayor.
Other than Pontieri, none of the current council members would have been intimately familiar with the Cascades issue other than through news reports. It isn’t clear why they have not discussed the matter in December or January, so they wouldn’t be under the gun Tuesday to decide how to proceed. Since the Byrndog letter isn’t yet litigation, the council could not hold a legal “shade” or closed-door meeting to discuss it. A city spokesperson said today there’d been no direction that the item be placed on an agenda, “but it’s very likely it will come up” at Tuesday’s meeting. Any of the council members or the city attorney may bring it up, though the litigation is being handled by Anthony Garganese, an attorney in the law firm that formerly represented Palm Coast (it is most familiar with the development.)
In the last two weeks, Acting City Manager Lauren Johnston sent all the Cascades background material to each council member. Each member has met individually with her and Garganese. But the attorney and Johnston could not legally transmit anything one council member said to another in those meetings. They may only discuss it in an open meeting. The council could request that the rezoning matter be reopened. It could reverse its decision or amend it. Or it could decide to fight the litigation: Bert-Harris lawsuits are not easy to win even in a state very friendly to property rights, and are sometimes filed as a tactical move in hopes of winning some concessions, as neither side is eager to end up in court.
So far Byrndog’s positon has been made clear through its claim letter. But the council’s direction will become clear only on Tuesday. Byrndog is playing up what it interprets are assurances by the city administration, ratified in that first-reading vote, that it would get its desired 850 units. But administrative commitments have no weight against a council’s final vote, even if that vote is a reversal. One of the outcomes from the Bert-Harris claim could be yet another reversal, but the make-up of this council makes that unlikely.
“It must be noted that even the 850 dwelling unit cap was not the highest and best use of the Property to which Byrndog was entitled upon being annexed into the City in 2023,” the claim letter notes. “Byrndog consented to this cap at the direction and recommendation of the City itself, as part of the negotiations by which Byrndog agreed to be annexed. In reasonable reliance on the assurances and representations of the City that no limit lower than 850 dwelling units would be imposed, Byrndog (a) agreed to be voluntarily annexed into the City; (b) consented to this limit, which is not the highest and best use of the Property; and (c) expended a considerable sum on pursuing both annexation and the plans for development of the Property.”
