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[Correction: an earlier version of this article incorrectly referred to the moratorium as a building moratorium, when in fact the moratorium would apply only to the placement of fill at building sites. While that may have the same result, discouraging or halting some construction, it is not, strictly speaking, a building moratorium, since construction may proceed without fill. The discussion on Tuesday made little distinction between the moratoriums’ effects on construction activity.]
The first hour of the Flagler Beach City Commission meeting Thursday evening felt like a geographic warp. Flagler Beach had gone Palm Coast on a raft of drainage wrangles.
Here was a resident choking up with desperation at the dais, describing how her house of 30 years has quickly been surrounded by new properties built on mountains of fill that have turned her yard into a small lake.
Here was the city’s new engineer talking about a 90-day moratorium on using building fill in certain areas so the city could rewrite its development code to address the issues.
Here were builders and the director of the Flagler County Home Builders Association decrying talk of moratoriums as pointless when the rules already on the books could and should be better enforced without punishing the majority of builders to target the unconscientious few.
Here was an actual, proposed ordinance spelling out the makings of a moratorium, an ordinance that seemed to have sprung up with little warning, putting the commission on the defensive in front of a chamber the home builders association had packed with advocates in tactical pre-emption mode. It worked.
Because here, too, were commissioners and the mayor taking turns to distance themselves from talk of a moratorium–a word whose 10 letters Thursday night had the distinct sound and caliber of a few four-letter words–with all sorts of reasons, not least the reading of existing rules, by Commissioner Eric Cooley, that spelled out regulations that should have made the warp unnecessary.
The commission agreed to table the proposed moratorium for at least two weeks, when a
The picture that emerged from that opening hour of the commission’s meeting was of a city unquestionably facing a problem with builders ignoring fill regulations, with a history of city engineers and a city that have done nothing about a comprehensive stormwater system, of existing regulations that some builders flout at will, and of a seemingly non-existent or overwhelmed code enforcement department of one employee that the city has not deemed fit to better arm against violators.
Equally startling was the divide between the administration and the commission as commissioners implicitly if sharply criticized their own staff for not enforcing city regulations, though the commission’s responsibility is not absent, since it provides its staff the means to enforce. Those means have been lacking.
In many ways, Annamaria Long, the executive officer of the Flagler Home Builders Association told the commission, this was a repeat of the drainage complaints in Palm Coast that started flooding the city council there last fall, where there was also a move toward a moratorium–quickly thwarted though it was.
“We just did this in January in Palm Coast,” Long and said. “I’m sure you saw the headlines. Moratoriums don’t fix things, moratoriums scare off businesses, they affect the private sector, they affect the public sector, they affect your own city employees. They’re not the answer. They never are. They never will be. We can fix the land development code. And we can still build houses because engineering can do their job.”
Much of the recent spate of complaints has come from one block in the city, the 2700 block on South Daytona Avenue, though as commissioners and others said, the issue has recurred elsewhere in the past. Kristina Shustack lives at 2708 South Daytona, a block that now mixes houses of long date with new ones. You can tell from their elevations. The old ones sit in troth. The new ones loom around them, built on top of small hills of fill.
“Some of us are running out of time. There’s only one lot left on my block, and every single home that’s been built since I’ve been there which is over five homes, has broken the rules, broken the codes, and I’ve played by the rules the whole time. And I just get more underwater every time,” Shustack said. The city engineer told her there was nothing she could do short of knocking down her house and rebuilding. But that’s not an option for Shustack. “This isn’t just hypothetical. This is my life. I have a 15-month-old son that could never use his backyard because it’s a swamp. I’ve lost all reasonable use of my property because of what’s happened around me. And because I’ve sat and I’ve waited and I’ve asked and I’ve emailed and I’ve come to every meeting, and I’m trying to get a resolution and all I get is lip service, and I’m sick of it.”
Shustack was echoing the complaints of a few dozen property owners in Palm Coast who had lived without issues in homes of long date until the lots around them started sprouting new homes, on mounds of fill far higher han their own. Palm Coast rewrote its technical manual regulating construction, limiting fill heights. Palm Coast did not have to do so by rewriting its Land Development Code, a more laborious process that can take months, if not years. It was instead an administrative rewrite, now in effect. Complaints have dried up in Palm Coast, even though June and July have brought significant rain.
Bill Freeman, Flagler Beach’s new city engineer–he’s been on the job one month: “welcome to the fire,” Cooley told him–said existing regulations allow builders to dump 50 cubic yards of fill on a lot. The regulations require builders to ensure proper drainage. But by the time the fill is in and the house is built, there’s little room for the kind of drainage infrastructure that would not displace the equivalent of 50 cubic yards of water. So floods result.
“We looked at the situation, we realized that the language of the Land Development Code needs to be revised. So that’s basically the next phase,” Freeman said. That’s how the 180-day, or six-month, moratorium in certain designated flood zones emerged.
Cooley didn’t buy it. “The problem is we’re using selective reading is what we’re doing,” he said. “If you follow the complete Land Development Code, not pick and choose which you want to talk about, then that picture is a little bit different.” He was also skeptical–as were all the commissioners and the mayor–that a 180-day moratorium would make a difference. “I’m hearing moratorium talked about a lot, and this is not a moratorium discussion,” Cooley said. “We’re supposed to be talking about fill allowance.”
To Commission Chairman Scott Spradley and Commissioner Jane Mealy, any talk of moratorium was premature in light of an extensive (and complicated) report by a consultant the city hired to study Flagler Beach’s drainage issues about to be delivered. That report will be discussed in two weeks. There is no sense discussing moratoriums now before the consultants’ report is studied and understood, the commissioners said. Spradley and the mayor were also concerned about the number of projects a moratorium would affect.
“It boils down to enforcement of what we already have,” Mayor Patti King said. “I’m torn on the moratorium aspect because I know we have so many people in the pipeline that this affects.”
Rich Smith, a builder who lives on Flagler Beach’s Lambert Avenue, essentially summarized the situation with a sharp sum-up he delivered to the commission at the end of the hour-long workshop: It’s not true that there aren’t good homes built in flood zones, he said. “There are a select few, and I really feel for the homeowners that have had bad experiences, because they could have been prevented,” Smith said. “But four to five or six or 15 that are bad, there are 75, 100, 1,000 that are built in the same zones that worked fine. And I will suggest because nobody will bring the cat out of the bag–I’ve got to do it because I deal with this every day–is that we haven’t had leadership in the engineering department for god knows in years. We haven’t had it.” A few people clapped.
“And as a result of it, we don’t have people in place to manage what we’ve got,” Smith continued. “And I will tell you directly: we have a management problem in the engineering department.” He turned to Freeman to his left, telling him he was exempt. He was too new. “The real issue here is the ones that are getting complaints and the ones that are causing problems and the ones that are not in compliance: I guarantee if you took the time to go out and look at the good ones and compare them to the bad ones, you would determine that staff screwed up. Staff approve something that should have never been approved. And then when they went out in the field to inspect it before they gave a CO [certificate of occupancy], they kowtowed down and said, Oh my god, what have I done? I am so embarrassed that I let them slip through that I must give the CO. This is absurd. This issue can be resolved at permitting. This issue is a permitting issue and a staff issue for not having either the knowledge or have the responsibility to make sure that this Land Development Code is read and managed properly. That is where the stops and starts.”
The moratorium discussion took place during an hour set aside as a workshop. The moratorium proposal was on the subsequent meeting agenda, but the commission ratified its decision to table it at least until its July 26 meeting. The proposal isn’t dead. But it appears to have been all but disarmed.
