Non-existent eagle’s nest in Palm Coast plantation leads county to improvise risky regulations

In short: a couple wants to build a house on Palm Coast Plantation that would partially violate an existing eagle protection zone. The Flagler County Planning Board gave it the go-ahead on Tuesday, saying eagles hadn’t been seen in the area in years and the protection zone should be removed anyway. But that may not have been the call of the planning board.

An eagle’s nest in Palm Coast Plantation that in all likelihood was vacated years ago has brought two owners, their builder, the Flagler County government, the Palm Coast Plantation Board of Directors and groups environmental concerns in a unique dilemma that worries county officials. on prosecutions and preparing to pass a resolution that would unilaterally remove an “eagle line of protection” in this part of the Plantation.

On Tuesday night, the Flagler County Planning Board did better than the county commission. He voted 4-0 to do something that didn’t seem to be within his purview. He issued a ‘waiver’ – permission to break existing land rules – by arbitrarily deciding that a long-established eagle protection zone did not apply to a couple building a house in Plantation Bay. They could not only build their house, encroaching on the area, but they could also build a swimming pool, encroaching all the more.

It wouldn’t matter, the council concluded, since the eagle’s nest no longer exists. They seem to be right: the eagles are gone. But the rule is still in the books. All the other owners in the area have respected him. The county itself, albeit by mistake, required all builders and landowners to follow it. On Tuesday, the planning council decided the rule did not apply, except without strong arguments that it should no longer apply.

The case of the ghostly eagles is illustrative of strong and well-intentioned environmental protections that sometimes outlast their purpose, hindering the right of owners to dispose of their property as they wish while creating inequalities between neighbors, who until now respected all newcomer environmental restrictions. now want to be exempt.

Last August, Janine and Sebastian d’Amato decided they had had enough of New Jersey. They bought the quarter-acre lot at 218 South Riverwalk Drive in the Palm Coast Plantation, just off the Intracoastal, for $94,000. They hired a builder, Saltwater Homes, and commissioned a 4,000 square foot house. Saltwater obtained a building permit in the county on May 18 and got to work. He didn’t go too far after clearing the ground: crews laid planks for the pouring of the concrete slab, but the slab hadn’t been poured by the time the county discovered it had done a serious mistake.

Although it had done it right before, the county realized that the rear of the property lay in the so-called eagle protection zone line: an eagle had nested there in the past, requiring this line in accordance with environmental rules. The line was no whim: It was the result of consultation between the county, the local Audubon group, the U.S. Fish and Wildlife Service, and Florida Fish and Wildlife Conservation Commission staff. The line extends within a radius of 750 feet from the nest. No construction can take place in this area. The plans for the house encroached on this area. A projected pool would encroach even more. “So we’re not going beyond the eagle zone, we’re going way beyond it,” said Adam Mengel, county planning director. “This will be the first swimming pool we will have in the region. Because of the eagle protection area, no one put a pool there.

Here’s the thing: the county had already approved the building permit. The county had allowed the violation, not the builder or owner. “There is no explanation of what happened as part of the staff review that led to the issuance of the permit,” a summary of the county’s issue reads, even though other homes had been authorized. , including two this year, with restrictions on how far the concrete could go, so as to respect the eagle line. “Issuing the building permit with the encroachment was a staff error,” the county found. This staff member is no longer with the county. “With all of that in mind, we made the mistake,” Mengel said.

To overcome the eagle line, the county has concluded that it would need the consent of 157 other lot owners, as this is a change that affects each of their property rights. The language is embedded in the veneer documents.

So Mengle came up with a solution. The minimum setback for a single family home on South Riverwalk is 25 feet for the front yard, per the Palm Coast Plantation Planned Units Development Agreement, adopted as a county ordinance. Palm Coast Plantation’s own covenant and restrictions reflect the same rule. Mengle’s proposal was for the county planning board to issue a variance, moving part of the construction 15 feet closer to the street. It would not eliminate the encroachment. It would only reduce its impact.

But the owners want to continue building the house as is, with the encroachment already in place – even after the waiver was granted – and also build the swimming pool, even though they have not yet applied for a permit for this swimming pool. . The owners’ view is that since the eagle’s nest is vacant, the eagle line is no longer applicable.

They have a point, and the county sees their point. But nothing formal has been filed to formalize the point.

“I’ve seen emails from FWC saying they’ve reviewed all of the evidence submitted by the Audubon Society and, to the best of their ability, the eagles are no longer there,” prosecutor Sean Moylan said. county deputy, referring to the Florida Fish and Wildlife Conservation Commission. “They have moved elsewhere and no one I know disputes that the eagles are now gone. They have been gone for years. And so we were trying to find a way to solve this problem where people’s properties are unfairly encumbered by an arbitrary standard that should no longer apply. At the same time, the FWC was telling us, “We don’t really issue official determinations or any sort of certification that the eagle is gone. They’re like, yeah, let’s go. But we don’t have a document that we issued for that purpose. So it seemed like we were in this arbitrary process. And we had to find a solution.

Variance aside, Moylan and Mengel are submitting a resolution to the County Commission on Monday that, if approved, would unilaterally remove the eagle line and potentially render the whole issue moot. (How this resolution would affect language in veneer documents is unclear.)

But the variance Mengel was proposing to the county planning board Tuesday night didn’t sit well with the residents of Palm Coast Plantation or the chairman of its architectural review board: They didn’t want to see a single house 15 feet from the street.

Mike d’Amato, the chairman of the Palm Coast Plantation architectural review board (he is not related to the owners of the property in question, which bears the same name), told the planning board that the only thing the committee would reject is a house built closer to the street. “The minimum setback in Palm Coast Plantation is 25 feet. And it’s in our governing documents,” he said. “That’s what it’s all been based on all the time, and we’ve issued a few deviations, but nothing less than the 25ft.” He added: “They would hang us.

He said the solution is to push back or eliminate the eagle line. (There are eagles on Herron Drive, which parallels South River to the west, he said, but on South River even the trees have been uprooted by recent storms.) He blamed no one for the mistake. . “We missed it at ARC, the builder missed it, the county missed it, we all missed it,” d’Amato said.

A resident of Palm Coast Plantation who is a builder placed blame for the error on the builder. “The fact that they have all their boards in place, and if they have to modify the house to do that, that’s the responsibility of the builder,” he said. “It’s not your fault. It’s not the county’s fault. It’s not the CRA’s fault. if I build something beyond the engineering of the building department and my plans are approved, and I build something that’s not up to code, the building department will force me to tear it down. There’s nothing but a few boards built. Another owner, a neighbor in the property in question, echoed the builder’s view and requested that the waiver be denied.

Going forward with the variance could lead to a Palm Coast Plantation lawsuit. Failure to move forward with a discrepancy could result in a lawsuit from the owners. Mengel was trying to avoid both. He wanted to make sure that “if necessarily, we went to court, that if I could then answer frankly to a judge, whoever asks me, have you done your best?” Mengel wants to be able to say yes.

In the end, the planning board was more frightened by the prospect of a lawsuit from Palm Coast Plantation than by the legal entanglements it might have caused by ignoring the county’s own line of protection from the eagles, believing that if the county commission could well repeal the line unilaterally, the back of the planning table is covered.

Eagles, meanwhile, are no longer endangered: “Although they are no longer listed under the US Endangered Species Act or Florida’s Endangered and Threatened Species Rules , bald eagles remain protected by both state eagle rule (68A-16.002, FAC) and federal law,” according to the Florida Fish and Wildlife Conservation Commission.

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