FlaglerLive
No Bull, no Fluff, No Smudges
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In brief: A couple wants to build a home in Palm Coast Plantation that would partly violate an existing eagle-protection zone. The Flagler County Planning Board on Tuesday gave it the go-ahead, reasoning that the eagles haven’t been seen in the area for years, and that the protection zone should be scrapped anyway. But that may not have been the planning board’s call. 
An eagle’s nest in Palm Coast Plantation that by all account has been vacated years ago has landed a pair of homeowners, their builder, Flagler County government, the governing board of Palm Coast Plantation, and environmental groups in a unique dilemma that has county officials worried about lawsuits and preparing to pass a resolution that would unilaterally remove an “eagle protection line” in that portion of the Plantation.
Tuesday evening, the Flagler County Planning Board did the County Commission one better. It voted 4-0 to do something that did not appear to be within its authority to do. It issued a “variance”–a 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 zone, but they could build a swimming pool, too, encroaching that much more.
It wouldn’t matter, the board found, since the eagle’s nest no longer exist. They appear to be right: the eagles are gone. But the rule is still on the books. All the other property owners in the area have been respecting it. The county itself, but for a mistake, has been requiring all builders and property owners to follow it. On Tuesday, the planning board decided the rule didn’t apply, if not 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, impeding property owners’ right to do with their property as they wish while creating inequities between neighbors, all of whom so far respected environmental restrictions newcomers now want to be exempt from.
Last August Janine and Sebastian d’Amato decided they’d had enough of New Jersey. They bought the quarter acre lot at 218 South Riverwalk Drive in Palm Coast plantation, right by the Intracoastal, for $94,000. They hired a builder, Saltwater Homes, and commissioned a 4,000 square foot home. Saltwater got a building permit through the county on May 18 and got to work. It didn’t get too far past the clearing of the lot: crews put down board for the pouring of the concrete slab, but the slab had not been poured by the time the county discovered it had made a serious error.
Though it had done things correctly before, the county realized that the rear of the property extends into the so-called Eagle Protection Zone Line: an eagle had nested there in the past, necessitating that line in accordance and environmental rules. The line was not a whim: it was the result of consultation between the county, the local Audubon group, the U.S. Fish and Wildlife Service and the Florida Fish and Wildlife Conservation Commission’s staff. The line extends in a radius of 750 feet from the nest. No construction may take place in that zone. The plans for the home encroached into that zone. A planned swimming pool would encroach even more. “So we’re not going beyond the eagle zone, we’re going well beyond it,” Adam Mengel, the county’s planning director, said. “This will be the first pool that we’ve had in the area. Because of the eagle protection zone nobody’s put a pool there.”
Here’s the problem: the county had already approved the building permit. The county had enabled the violation, not the builder or the property owner. “There is no explanation of what occurred as part of the staff review that allowed the permit to be issued,” a county summary of the issue states, even as other homes had been permitted, including two this year, with restrictions on how far the concrete could go, so as to respect the eagle line. “The issuance of the building permit with the encroachment was a staff error,” the county found. That staffer is no longer with the county. “With all that in mind, we made the error,” Mengel said.
To overcome the eagle line, the county concluded it would have to have the consent of 157 other lot owners, because it’s a change that affects each of their property rights. The language is embedded in platting documents.
So Mengle came up with a solution. The minimum setback for a single-family house on South Riverwalk is 25 feet for the front yard, in compliance with the Palm Coast Plantation Planned Unit Development agreement, adopted as a county ordinance. Palm Coast Plantation’s own covenant and restrictions reflects the same rule. Mengle’s proposal was for the county planning board to issue a variance, shifting some of the construction 15 feet closer to the street. It would not eliminate encroachment. It would merely reduce its impact.
But the owners want to continue building the house as is, with the encroachment already in place–even after the variance is granted–and also build the swimming pool, even though they have not yet applied for a permit for that 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 saw emails from FWC saying that they have reviewed all the evidence submitted by the Audubon Society and from best they can determine, the eagles are no longer there,” Sean Moylan, the assistant county attorney, said, referring to the Florida Fish and Wildlife Conservation Commission. “They have relocated somewhere else and no one as far as I know disputes that the eagles are now gone. They have been gone for years. And so we were trying to figure out a way to solve this issue where people’s properties are unfairly encumbered by an arbitrary standard that should no longer apply. The FWC at the same time was telling us, ‘We don’t really issue official determinations or some sort of certification that the eagle is gone.’ They’re like, yeah, it’s gone. But we don’t have some document that we issued for that purpose. So it seemed like we’re in this arbitrary process. And we needed to come up with a solution.”
Aside rom the variance, 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 that resolution would affect the language in platting documents is unclear.)
But the variance Mengel was proposing to the county planning board Tuesday evening did not at all sit well with residents of Palm Coast Plantation or the chairman of its Architectural Review Committee: they did not want to see a single house 15 feet closer to the street.
Mike d’Amato, the chairman of the Palm Coast Plantation Architecture Review Committee (he is not related to the owners of the property in question, who have the same name), told the planning board that the one thing the committee would reject is a house built closer to the street. “The minimum setback in Palm Coast Plantation is 25 feet. And that’s in our governing documents,” he said. “That’s what everything has been based on the whole time, and we have issued some variances but nothing short of the 25 feet.” He added: “They would hang us.”
He said the solution is in pushing back or eliminating 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 were uprooted by recent storms.) He wasn’t blaming anyone for the mistake. “We missed it at the 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 the responsibility for the mistake on the builder. “The fact that they have all their boards up, and if they have to modify the house to do it, that’s the builder’s responsibility,” he said. “It’s not your fault. It’s not the county’s fault. It’s not the ARC’s fault. if I build something that went past engineering in the building department and my plans were approved, and I built something that wasn’t code, the building department would make me take it down.” He nothing other than some boards have been built. Another property owner–a neighbor of the property in question–echoed the builder’s perspective. He asked that the variance be denied.
Moving ahead with the variance could lead to a lawsuit from Palm Coast Plantation. Not moving ahead with a variance could lead to a lawsuit from the property owners. Mengel was trying to avoid both. He wanted to ensure that “if inevitably, we went to court, that if I could then answer in a straight face response back to a judge, whoever is asking me, did you do everything possible?” Mengel wants to be able to say yes.
In the end, the planning board was spooked more by the prospect of a lawsuit from Palm Coast Plantation than by whatever legal entanglements it may have provoked by ignoring the county’s own eagle protection line, figuring that if the county commission may well repeal the line unilaterally, the planning board’s rear is covered.
Eagles, meanwhile, are no longer endangered: “While no longer listed under the U.S. Endangered Species Act or the Florida Endangered and Threatened Species rules, bald eagles remain protected by both the state eagle rule (68A-16.002, F.A.C.) and federal law,” according to the Florida Fish and Wildlife Conservation Commission.
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I’m guessing these folks would break the rules even if the Eagles were nesting there, after all what’s a pair of nesting eagles worth over there new, big, beautiful home. This is the attitude that has got us where we are today. Get rid of nature cause I’m more important. Here’s the natures side which never gets brought up in these meeting’s because you can’t make a buck off nature. While the eagles may or may not have abandoned the nest, most likely because of all the building going on nearby, after all they are not cardinals. Since the nest area has been a sufficient habitat for eagles so that a pair choose to nest there then it should be maintained as eagle habitat in the hope that another pair will arrive. Destroying it by building the home is eagle habitat destruction. As if they give a hoot.
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And the city prides itself on the tree something (forget the name it’s called) awards the get. Now the Monarch butterfly achievement the got but there is not even enough flowering plants for the to make a habitat here. I have more milkweed in my yard than the city has for monarchs to sustain life
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I agree. What’s next pushing the intercoastal waterways back in order to please development. Another attempt to de-regulate for profit. Poor mismanagement on behalf of city, but not surprised. Only disappointed.
Seriously consider the damage caused by irresponsible people. Look at the starving manatees.
Really????????
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What’s next? BBQ’d gopher tortoise at Captain’s BBQ?
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The city does not even inspect lots for the gopher tortoise. I have seen the R section been ravaged with new lot clearing and the tortoises be evicted. Sad.
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Really? Build the house somewhere else. Eagle enemy #1. We need to protect whatever small space these animals have. One day humans will no longer exist but they will because this is their home and we are the invaders.
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Anyone else see the irony of the Eagle – the very symbol of our country’s Democracy – having departed Palm Coast?
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It appears the eagles moved a street over in Palm Coast plantation, they have not departed.
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I saw one right by my place in Marina Cove just the other day .
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Ethics and Following the rules have completely vanished in this county.
Between Joe Mullins running around with his behavior. And the Bunnell BOCC making up their own rules these boards just do what they want. Now the planning board wants to do this.
@ The Planning Board.
I’ll be keeping an eye on this. And will be making some phone calls to Fish And Wild Life. I also ask the community to step up as well.
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That is Bu– sh–. Eagles have been there for a long long time. Just like Hand Ave. Volusia County has let contractors destroy Hand, Clyde Morris and Williamson. It’s the almighty dollar. Also killing 100’s of gopher turtles.
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The eagles are still here – and nest hear annually!
I don’t know what the solution is, but they are still in Palm Coast Plantation!
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The same thing happened to the Florida Scrub Jays at Matanzas Shores.
Build condos and they will disappear…which they did!
Washington Oaks attempted to bring them back with no luck.
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Welp, sometimes money can’t buy everything. Build the house somewhere else. Preferably out of this county if you are reading this. Flagler County is already full of enough people who think JUST like the people above who have NO respect for anything other than their want. This county does not even save its own people, so – please save the wildlife. The wildlife means more to me then some egomaniac who wants a new house.
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Can we just leave native habitats alone? Build that home elsewhere.
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Can they swear on a stake of bibles the eagles are really gone? I doubt it. Look around they continue to build housing developments and because of that animals are being pushed out of their save housing spaces for humans, not right & not fair.
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The over zealous, greedy land ravaging, destroying and constant building in Palm Coast / Flagler county is utterly ridiculous. Our precious green space and wildlife needs to be protected and preserved. Our green space is detrimental to our existence!!!!!
Stay where you are, move into one of the many foreclosed homes that are sitting empty.
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See this is the problem in a whole .Money makes wheels and heads turn that shouldn’t. You moved here, we have lived here and the scenery we all know and love. Is now being changed. By people who think their wants are more important than the set “SANCTUARY AREA5 BE IT TREE OR ANIMAL”.
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Has anyone but myself noticed the City of PC no longer cuts grass on public roads like they used to. PC used to take pride in well manicured streets and roads. What is going on is all the City and County now care about is putting in developments all over the place to get property tax money?
Leave the wildlife a lone they were here first.
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The ignorance shown in these comments is absurd. The public really should educate themselves before posting a comment to any forum. The main fact behind this case is the ORIGINAL Eagle Protection Zone Line extended 770 feet from the nest in any direction. This Federal guideline changed years ago, with the RECOMMENDED buffer distance now being 660 feet from the nest. Based on the updated FEDERAL guidelines no portion of this specific property falls within the Eagle Protection Zone. The language in the community Plat has become obsolete; FEDERAL law/guidelines prevail. Just to be sure all bases were covered, Saltwater Homes recommended the Damato’s have an environmental study completed to confirm the 660 ft zone line location as well as confirmation the nest had been abandoned and any other possible environmental issues that might exist. The study confirmed both, PLUS noted the trees housing the nest were gone! They had been blown down during a previous years hurricane. All documentation was provided to the governing entities and permits were issued accordingly. After a complaint was filed, Flagler County Staff went above and beyond to research all CURRENT guidelines and factual information pertaining to the nest in question, FL007. Flagler County Planning Board made their decision based Federal guidelines, which is justifiable. Both the contractor and homeowner followed all procedures, rules and regulations necessary to make improvements to this property from day 1. Once this is presented before the County Commissioners, and passed, the 12 lot owners currently affected by the old 770 ft zone line will have this un-necessary burden alleviated and be able to utilize the entirety of their property (within setback requirements of course). It would be foolish to think any patriotic American would not do their due diligence and be sure to adhere all guidelines surrounding or related to a Bald Eagle!
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Your wrong!!!The Eagles are still here!!!!I was the 3rd house built in Palm Coast…aka ITT!!!! And i bet your from NJ or Ny!!!! Lmao…. trying to turn it into NY…..The morjority of ones seatted are from the North….why?….Why ruined what nature is left??? Used to be a dirt road aka Old Kings Rd….1 way in and out…..i helped cut through the area… sold my last house in 88….saw what was coming…..crime … wanna be gangs… traffic is a joke….
Build your house in NJ…..
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How dare those irresponsible eagles break the law and fly where they are prohibited!
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Thank you EducatedAndInformedCitizen for trying to educate and inform other citizens.
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Hey we sure appreciate you talking down to all us uneducated folk on here.
I’d insert a massive eye roll on here. But Flagler Live won’t allow it.
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Ouch that was most certainly written by someone’s building secretary that is afraid she will lose her job based on their bosses police arrest record. ummmmm does anyone know about that…..It’s all about the Benjamin’s. The heck with the home owner who pays to have their home built only to find out after a year that the house is falling apart, and there is nothing they can do because the house is only warranted for a year by the builder…..call the builders complaint dept and get a sassy teenager that could care less about your problems, but she is loved by the owner so she has lifetime job security. Oh and house insurance, sure they’ll pay your homeowners claim then drop your butt. Good luck getting anyone else to insure your property if you actually make a claim.
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New York and New Jersey don’t give a damn about wildlife in beautiful Florida, that’s been clear for decades. Is anyone left up there? It must be a couple of awful states because they are all here, trying to make it look like there. You know, like the Bronx Pizza chain restaurant in the Hammock? Well, a New Jersey house v. the American symbol. Who will win, I wonder. Wildlife to NY or NJ is a dead squirrel in the road. The nosiest library I’ve been in is in Boca Raton where the the expat patrons actually yell at each other across the building. Make sure you get that pool, too. Sigh.
We see eagles every winter; we’ve even seen them on the beach. We see the kingfishers come down each winter, but last winter two squabbled over territory that is shrinking due to heavy boat traffic. Both left. We’d hear blue herons clucking away in nests in tall trees, but not lately. In just the last year, we’ve not seen bobcats and foxes, which we usually see. We watch as boats zip by clueless of their surroundings, with radios blasting, while dolphins try to dodge them. Manatees are rare now, and we see less sea turtles in the ICW. But we have more access to blah pizza.
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Sad…
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LMAO….We didn’t have any of these problems in the 70s until northerners moved here and started slowly ruining our county…..
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