Developer SLAPP-Sued Him For Libel, Voters Just Elected Him. (Flagler Live)

Congratulations to former St. Johns County Commissioner Joseph Kenneth Bryan (2008-2012), who was on March 17, 2020 elected to Flagler Beach City Commission, after a pointless Strategic Lawsuit Against Public Participation filed by a developer.

Ken Bryan and Deborah Phillips Win in Flagler Beach, Shupe Is Out; John Rogers and Tonya Gordon Win in Bunnell

MARCH 17, 2020 | FLAGLERLIVE | 3 COMMENTS

Ken Bryan, center, at a meeting on The Gardens development last year, flanked by Elizabeth Hathaway, left, and former County Commissioner Barbara Revels. (© FlaglerLive)

Ken Bryan, the former St. Johns County commissioner who rose to prominence in Flagler as an opponent of a planned large development there, won election to the Flagler Beach City Commission today with the most votes in a four-way race, as did Deborah Phillips, the retired banker and shop owner vying for a seat for the second time. Two seats were in play. 

Bryan made a little history this evening as well, becoming the first black resident to win election to the Flagler Beach panel, in a city that is nearly 97 percent white.

Marshall Shupe, who had first been elected in 2011 and had won re-election twice since, lost his Flagler Beach commission seat, pulling in the fewest number of votes out of four candidates. Paul Harrington came in third. 

The Flagler Beach commission will have two new members, as Commissioner Kim Carney opted not to defend her seat but run for a county commission seat instead. 

Bunnell Commissioners John Rogers and Jan Reeger. (© FlaglerLive)

“I think the two people who won, I’ll be able to work with both of them well,” Flagler Beach Commissioner Jane Mealy, the longest-serving on the panel, said this evening. “Unless I didn’t get to know them the way I thought I did. But given what I heard at the two candidates nights, and just in talking with them, I think we’ll be fine.” She said she would miss Shupe. “He didn’t have personal agenda, he was a good asset and I will miss working with him.” 

In Bunnell, John Rogers won re-election for the third time to his fourth city commission term but not with the largest number of votes. That honor goes to Tonya Gordon, who won a third of all votes. Gordon is the office assistant at the Bunnell insurance agency of Elbert Tucker, who had served for a decade on the commission before opting not to run a year ago. 

Tonya Gordon.

“I’m happy, I’m shocked in a way, I’m excited and excited to get in there and start learning stuff, and see where we can go from there,” Gordon said this evening. “Any time I’ve had questions about some stuff I’ll ask him, but a lot of people think me and Elbert talk about politics, and actually we do not. There is some things Elbert and I don;t agree on, and we agree to disagree on them, especially at work.” But Gordon said she will ask him about legal questions such as issues relating to statutes and other technical issues he’s familiar with. “I’m excited to see if I can make a difference.” 

Incumbent Jan Reeger, who had won a special election a year ago to fill the seat vacated by John Sowell but was required to run again for the full three-year term, failed to defend the seat, drawing just over 20 percent of the vote, with Tina-Marie Schultz coming in fourth. 

Rogers could hardly speak–not because he was overcome by the victory (it would take more than that for him to be overcome) but because he was called to the job: “I had a million-dollar boat fall off a trailer,” he said, at I-95 and County Road 206. Rogers owns John’s Towing, one of Bunnell’s three towing companies. He had been at the old Bunnell City Hall watching the returns before he was called out. 

Deborah Phillips. (© FlaglerLive)

To Bryan, it was a matter of experience and clear messaging, he said this evening as he was celebrating with his wife, two cats and a good glass of wine. “Always straight, upfront, and tell people exactly what I plan to do and always be honest about it,” Bryan said, citing his ideas as well–his strategic plan and how to improve communications between the city and its residents. “That seemed to resonate with a lot of people when I was going door to door,” he said. 

Unquestionably, his prominent role in the leadership of a group called Preserve Flagler Beach and Bulow Creek, established specifically to counter the planned Gardens development along John Anderson Highway, was a propelling force. But, Bryan said this evening, as he has in forums, “I’m not against development at all, I am for responsible development. I would hope that we can continue to work with the developer of The Gardens to come up with something that’s mutually agreeable” to the citizens, he said. “If we can work with them and come up with something that’s beneficial to everyone, then I think we’ll be fine. I think it’s going to come,” he said of the development, “there’s no doubt about that, it’s juts a matter of how it’s going to come.” 

Bryan pulled 31 percent of the vote, with Phillips at 25 percent. Phillips–whose email handle was “promoteflaglerbeach”–could not be reached this evening. 

Three minor charter amendments also passed in Flagler Beach

The two cities’ elections were held in tandem with the presidential primary, which was anti-climactic: in the Democratic primary, Joe Biden took Flagler with nearly 70 percent of the vote, to Bernie Sanders’s 16 percent. Sanders got exactly half the 32 percent of the vote he’d won in the 2016 Democratic primary in Flagler, when Hillary Clinton won with 65 percent of the vote–an indication of the lack of enthusiasm for Clinton then, and the more pronounced enthusiasm for Biden now. Biden also won Florida handily today. President Trump had some nominal opposition from former Gov. Bill Weld, who pulled in 2 percent of the vote, to Trump’s 96 percent.

Turnout was 33 percent, according to the Flagler County Supervisor of Elections.

One Side Says Defamation. The Other Says Intimidation. The Gardens Development Spins-Off a Lawsuit.

FEBRUARY 10, 2020 | FLAGLERLIVE | 6 COMMENTS

Ken Bryan, addressing the audience at the November 7 meeting on The Gardens. Bryan is the target of a defamation lawsuit by The Gardens’ umbrella company, SunBelt Land Management. (© FlaglerLive)

When they gathered for a public-information session before 100 people at a church in Flagler Beach last November, a group called Preserve Flagler Beach and Bulow Creek’s spokespeople discussed why and how they are building opposition to the proposed Gardens development along John Anderson Highway.

The development first drew attention–and opposition–last summer when it proposed close to 4,000 homes and apartments on the two sides of road in Flagler Beach. The project would take a generation to build out, according to Ken Belshe, the senior director with SunBelt Land Management and the point man on The Gardens. But opponents say it will change the complexion of Flagler Beach from a small, quaint town to something resembling a densely built south Florida coastal community, even though the entire project falls in the county’s unincorporated area: the county has regulatory authority. But because the project would depend on Flagler Beach’s water and sewer utility, and of course because of its immediate proximity, it makes the city the quasi jurisdiction for the project.

The opposition group’s numbers, presence and noise at two meetings where The Gardens was the agenda last summer appeared to take the developer by surprise. He pulled the proposal, re-submitted a different, scaled-back version, which was rejected by the county administration, and is submitting an amended version expected to be considered at the county’s Technical Review Committee this month. Opposition has not let up.

But in a surprise last week, SunBelt filed a defamation lawsuit against the group’s Ken Bryan and “Jane Doe,” because of the way they’d characterized SunBelt practices at the November community meeting. John Tanner, the former State Attorney and one of the lawyers representing the Bryan and the group, said a counter-suit is likely, and characterised the filing as a slapp suit–a strategic lawsuit against public participation, intended to intimidate or silence opposition.

Michael Chiumento III, the Palm Coast attorney representing SunBelt, said intimidation was “absolutely” not the intent. “This is about Ken Bryant defaming a company in St. Johns County, period.” And the suit has “nothing to do with The Gardens.”

Chiumento said the lawsuit rests on a narrow, simple argument: Bryan had prefaced his remarks to the crowd at the November meeting by saying that the group’s work is rigorously researched and documented. But he then proceeded to offer an example of SunBelt’s alleged practices that was factually wrong on two counts: the company he was referring to is not the company planning The Gardens in Flagler, but one in St. Johns County. And the words Bryan used to describe land-clearing on SunBelt land (the word was “clear-cutting,” which has a pejorative connotation) was inaccurate–and in SunBelt’s view, intentionally so–to show SunBelt in a bad light.

To the general public, SunBelt may be Sunbelt. But there are legal distinctions, as within any large, umbrella corporation. The company planning The Gardens is under SunBelt’s umbrella–as is Belshe’s title–but the company itself is registered as Palm Coast Intracoastal LLC, as far as the state Division of Corporations is concerned, and as far as Flagler County government is concerned. The company that Bryan was referring to in the St. Johns example was Sunbelt Holdings Florida LLC, which owns the parcel there.

The defamation lawsuit, which seeks damages in excess of $30,000, quotes Bryan’s words at the November meeting and those of “Jane Doe.” Chiumento would not say how SunBelt got a transcript of the November meeting, but clearly, the company had someone in the audience recording or transcribing. Bryan’s words quoted in the lawsuit closely but not entirely identically tracks with FlaglerLive’s transcription from a recording we made. The differences are minor, and don’t seem material to the issue. The quotes presented here are from FlaglerLive’s recording, which is also included in full for context.

“Now what is our mission?” Bryan had asked the audience rhetorically at the beginning of the meeting, describing Preserve Flagler Beach and Bulow Creek as a registered nonprofit. “We formed to bring awareness to the community of Flagler Beach and Flagler County regarding a proposed change to the land use map that would allow a mega development that would alter the quaint beach area that we all know and we love here in the Flagler Beach area.” He said the proposal could also affect the Bulow Creek area. He pointed to the maps the organization prepared, with highlights. He then detailed the issue as did Robin Polletta and Sallee Arnoff.

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A little more than 30 minutes in, after Polletta spoke and just before turning to a Q and A segment, Bryan took the mic again (it’s minute 34 in the recording embedded here.)

He told the audience that while the question cards were being collected there were “a couple of points that I think you should be aware of. This particular company, Sunbelt, last month–I’m from originally from Maryland (sic.), having lived in St. Johns County and St. Augustine for 13 years prior to moving here. About three or four weeks ago I got a call from one of my friends in St. Augustine. This particular company went in to a particular piece of property that they own near the airport on Old Gun House Road I believe it is. They moved [inaudible] they moved their equipment in on a Friday, and they started clearing land right after all the county employees had left. And they continued to clear land until Sunday night, when they were finished. By the time the county found out what happened, they had clear-cut this entire property. So, you say, well, what’s going to happen? Well, they got fined. They got fined [inaudible] a total of $7,000. That’s just the cost of doing business. And I’m just making you aware of this because, pay attention to what’s going on. I mean, I’ve worked here, you know, Elizabeth [Hathaway]’s husband has an incredible drone, so we keep an eye on [laughter drowns out his words].” He asked supporters to “be vigilant” and give members of the group a call if they see anything out of place.

Polletta, Arnoff, Elizabeth Hathaway and Barbara Revels, the former county commissioner, along with Bryan, all fielded questions during the Q&A.

“He made the statements knowingly that they were false, and they caused damages,” Chiumento said of the “clear-cutting” and “cost of doing business” portions. (Though there was land clearing, it was selective, not “clear-cutting,” Chiumento said.)

Tanner, who said he’ll be just one of the attorneys representing Bryan, didn’t see “any substantial basis” for the complaint, which he said doesn’t allege “intentional malice.” Bryan’s statement, just for being inaccurate, “still doesn’t make it an intentional misrepresentation.”

There’s also the matter of damages: “What provable damages if any have you incurred, and how can you prove they directly relate to this one comment by a citizen who simply tried to explain his opposition as a citizen to a development?” Tanner said. “This suit appears to be an attack upon a citizen’s right to oppose this development and more importantly, an attack upon free speech.” (Bryan, a former county commissioner in St. Johns, is a candidate for the Flagler Beach City Commission in the March election.)

Tanner added: “We’re looking forward to getting in court. I hope it won’t be a long litigation, it looks like it will be fairly straightforward and we’ll file a response within 30 days.”

SunBelt v. Bryan: