No more carrots. Flagler County is going with the stick. County Attorney Al Hadeed on Wednesday informed Flagler Beach City Attorney Drew Smith that the county will sue two Flagler Beach property owners to secure beachside easements. The easements are necessary to allow the U.S. Army Corps of Engineers to proceed with a long-delayed dune-rebuilding project along 2.6 miles of beach in the city.
The dunes-restoration project has been in the works for a decade and a half. The Cops is ready to dredge sand from a borrow pit offshore and rebuild 2.6 miles of shoreline, erecting storm-resistant dunes intended to slow the effects of beach erosion, and to repeat the process every decade for 50 years. To do so, it needs property owners’ permission to work on their portion of the beach.
The Corps earlier this month gave the county an ultimatum: get the signatures, or risk losing $17 million–the federal portion of the allocation–until further notice. That left the county with little choice.
“We are proceeding to file eminent domain suits against the two owners who have not voluntarily agreed to have their dune remnants repaired,” Hadeed wrote Smith Wednesday afternoon. “The Army Corps is presently checking data to finalize our ability to proceed with the court cases.”
The two owners are Cynthia D’Angiolini and Leonard Surles. Surles owns the house at 2732 South Oceanshore Boulevard with Elke Vogel, and the “dune remnant” immediately across the street. D’Angiolini owns the property at at 2538 South Oceanshore Boulevard, and the remnant in front of it.
Remnants are 50-foot-long stretches along the dune line above the shoreline, where local ordinances forbid construction. Beachside owners’ properties extend to the ocean’s high waterline, but by custom, the public is allowed to use the beach even if it is in private hands. (Flagler enacted an ordinance drafted by Hadeed to that effect. A similar ordinance was contested in Pinellas County until a federal appeals court in August ruled customary use legal. The ruling was relevant to the county’s and the Corps’ designs as it buttresses the argument that the dunes project is for public and private benefit.)
The county has repeatedly negotiated with the owners to secure the easements without stronger-armed means. The county commission went as far as memorializing pledges in official documents that the dunes will not even be planted with inappropriate vegetation (one of Surles’s fears), and to assure the owners that a future government will not somehow alter building regulations on the dunes. The owners haven’t budged.
“To this point, we have extended every chance for the owners to come to the table to discuss their concerns and issues,” Hadeed wrote Smith. “We will remain open to any further discussion the owners may wish to have but, regardless, we must proceed in order to avoid loss of the federal and state funding.” Flagler Beach government is not involved in the Corps’ project other than in an advisory capacity.
Hadeed has appeared before the commission, at times every two weeks for months, to update city commissioners on the status of the project. He did not appear at the commission’s last meeting two weeks ago, right around the time when the county had learned of the Corps’ latest disenchantment with the delays. In an interview on Jan. 10, he made clear the county’s magnanimity with the owners had all but run out, and that legal action would be necessary. The Flagler County Commission has already formally authorized eminent domain proceedings, so the move no longer needs any other procedural action except a filing with the circuit court.
Circuit Judge Terence Perkins is expected to hear, and likely expedite, the case, since it is a matter of public urgency–and public safety, given the ocean’s increasingly blustery behavior: it’s only in 2017 that the state spent $4 million for emergency repairs to a shredded State Road A1A, following the devastation of Hurricane Matthew, along the same stretch of beach that the Army Corps intends to reinforce. And it’s only in 2019 that the Department of Transportation spent another $22.4 million for more a more permanent reconstruction of that stretch of A1A–as permanent as anything can be along that shore. It’s been an expensive stretch of beach to preserve. (See: “Gov. Scott Surveys Flagler Beach’s Cratered A1A as Congressman Cites $35 Million Repair Bill” and “At Painters Hill and Washington Oaks, Crumbling Houses and a Devastated Treasure Beyond the Public Eye.”) The destruction has not abated even with weaker storms, as was the case just last November.
It will be the first time that Flagler County has invoked eminent domain in its 104-year history. Eminent domain is the power of a government to take private property for public use even against the owner’s will. The taking is conditioned on just compensation set by a court.
There is no taking in these two cases. No one’s land is being acquired in any way. The county is only seeking permission to temporarily use the land to rebuild dunes on it–a reverse, in essence, of what nature has been doing to D’Angiolini and Surles’s land, without their permission, for years: invisibly but just as effectively eroding it, and placing properties along A1A and beyond in danger.
If anything, the county has argued, properties are being improved by getting significant protection from recurring storm events. Rather than a taking, the eminent domain action in this case would legalize the Corps of Engineer’s ability to–for lack of a better word–trespass and work on the land. Since there is no taking, it isn’t clear whether compensation will be an issue.
Theoretically, the Corps could proceed with the project without the two owners’ agreement, and without eminent domain proceedings. But that would leave gaps in the dunes structure where the two resisting owners’ properties are located. The gaps would all but render the project pointless, as they would turn into funnels for the very forces the dunes are intended to impede.
Flagler County government started threatening to sue Flagler Beach property owners through eminent domain proceedings some 15 months ago. At the time, 11 property owners had yet to sign easements. All but the two owners have since signed, some after getting a $5,000 incentive from a private group of Flagler Beach residents who raised money for the effort. Flagler County was not involved in that part of the equation.