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City Draws Line in Sand against Individual Property Rights

City of Palm Coast uses spurious arguments to deny a building permit. This could be another Ryan's Landing fiasco where city residents foot the bill for unnecessary legal fees and more.

By Toby Tobin
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Palm Coast, Florida – March 13, 2009 – March 5th, I published an article titled "Capricious Government Power vs. Property Owners' Rights." It discussed the unfair denial of a building permit for 6 Llovera Place. The permit is on hold because the city's engineering and storm water department claims the lot is not part of the city's master storm water management system. This claim is spurious.
For some reason, city staff has drawn a line in the sand resulting in a capricious taking of property owners' rights. GoToby.com has spoken with several local leaders, including some who worked for ITT during its evolution. Others are active currently or have been in the past in local government. They are all scratching their heads over the city's action. More than one has said, "What are they thinking?"

Background on drop lots

6 Llovera is one of 1,138 drop lots. The only thing that differentiates drop lots from other lots is that at one time, ITT (the original developer of Palm Coast) decided to temporarily drop them from their current sales offering list. Hence, they have been saddled with the designation "drop lots." Some were wetland at the time but have reverted after drainage canals were dug. Some did not have roads and sewer installed at the time. Some still do not. Some are still wetland.
  • Vested rights for drop lots are confirmed in an August, 1977 agreement (Lessinger Agreement) between ITT and the Division of State Planning of the Department of Administration.
  • ICI Homes (Intervest) purchased several hundred drop lots from ITT.
  • Intervest subsequently sold lots to several builders, including D R Horton, Richmond American, and Port Equities. At least 49 have since had homes built upon them (i.e. building permits were issued).
  • Port Equities LLC, purchased 6 Llovera place, along with 682 other drop lots from ICI in 2005.
  • The City of Palm Coast issued a "Drop Lot Policy Statement and Buildability Report" which supports the assumption that drop lots can be built upon.
  • An affidavit from Jack Kelly, former Director of Engineering for ITT states, "It is my professional opinion that all 683 lots listed on the attached Schedule A are part of the stormwater system for the City of Palm Coast as per the original design according to the plats of record with the County of Flagler and all other documents originally drafted by ICDC and distributed by ICDC to all state regional and local governmental agencies and private organizations and individuals."
  • A March 2003 engineering study by CPH Engineers supports Port Equities claims.
  • The city issued a building permit for 6, 8, and 10 Llovera Place in 2006. Because of market conditions at that time, the developer cancelled the permits.
  • The property owner has continually been billed property taxes on the lot which is platted as single-family residential.
  • The city continues to bill storm water management fees (from 1973 to 2008).
  • The lot appears to be high and dry (see picture at right), surrounded by many other lots, many with homes on them.
On Tuesday, March 17th, the owner of the property will appeal the permit "hold" to the city council. Council members have been provided a thick packet of material for review prior to Tuesday's meeting. I've reviewed their packet as well as information from other sources. I've concluded that, as with most statutes, covenants, agreements, decrees, etc. the language is often baffling and inconsistent.
It is also very clear that in making its case, the city has cherry picked excerpts from the morass of material which support the position of the engineering and storm water department while ignoring the preponderance of facts which support the property owner. For example, the city claims that the lower assessed value of drop lots is evidence of their reduced suitability for building. In fact, it's the other way around. The assessed values were only recently reduced because the city has put a cloud on their value by denying permits.  
The process leading up to tomorrow's appeal has been fraught with tension on both sides. The council for the Planning and Land Development Regulation Board (PLDRB) did not effectively represent the PLDRB. Throughout, she seemed to be representing the staff view. She misinterpreted Robert's Rules of Order as it applies to tie votes, resulting in an erroneous ruling against Port Equities. At the exasperation of the PDLRB Chairman, Nate McLaughlin, board members would not act to correct the error, prompting McLaughlin's resignation. Following the meeting, three members of the board were witnessed together at a local restaurant in a clear violation of Florida's Sunshine Law.
Just as they did in the Seagate Communities/Ryan's Landing fiasco, the city is headed down a slippery slope. This is not only unfair, it's bad governance.They are wrong on the face of it. How can they claim that a lot is not part of the city's storm water management system while continuing to assess storm water management fees? The city's argument is weak, supported only by inconsistencies cherry picked from historical documents. The preponderance of evidence is on the side of Port Equities. In such cases, a decision should clearly go to the side of individual property rights.
This is smelly politics at its worst. I hope city council members will stand up against the onslaught being unleashed by city staff upon local taxpayers. If not, taxpayers are in for an expensive and messy ride.
The City Council will meet Tuesday, March 17 at 9:00 A.M. at the Community Center.
reader comments
Land Use / Building Permit
Posted by John Boy
Mar 16, 2009, 7:18 pm
Clearly the City Staff is wrong. What's behind their action? Is building a house not good for the city? Is charging a annual fee for service provided not proof enough. I say follow the money, check the financial statements of all City employee's who have been involved in this SNAFUP.
Are these drop lots too
Posted by George Edward Chuddy
Mar 16, 2009, 7:18 pm
Does anyone know if the Lots on the designated and recorded single family residential streets of Cambridge Court, Cypress Court, Country Club Place and on the other side of the G.C. -Broadmore Circle, Pine Hurst Place, etc., are *drop lots/drop streets*? Is there such a thing a *drop streets* ?
Additionally, ITT Levitt later ITT CDC had a long standing policy for years to *swap* lots, if improvements we not ready for a specific Lot. Could that be a possible Relief and Remedy for the positive benefit of the owner(s) of Llevora, being made given a Lot of equal or better value such as a Lot on Counrty Club Place, etc. - wouldn't that be the more practicable way to go for the owner(s) and all of us?
We wish the owner(s) of Llevora much success.
George Edward Chuddy

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Don "Toby" Tobin is a licensed real estate professional affiliated with Grand Living Realty. Toby is a member of the Flagler County Association of Realtors®, the Florida Association of Realtors, Enterprise Flagler, Flagler Home Builders Association, and the National Association of Realtors.

GoToby.com proivdes real estate news, commentary, and analysis for Palm Coast and Flagler Country Florida, as well as Realtor® referrals and consultation to buyers, sellers, and developers.