Flagler County Attorney Al Hadeed and U.S. Army Corps of Engineers Project Manager Jason Harrah told the Flagler Beach City Commission Thursday evening that the now two-decade-old plan to rebuild 2.6 miles of beach south of the pier is set to begin in June.
There is heightened urgency to get the project done, not only because the coastline sits exposed and vulnerable to any storm, but because now even so-called sunny-day events are affecting the dunes. The ocean carved out a colossal amount of sand from the dunes below and just north of the Flagler Beach pier in the last few months. There’s been a lot of speculation about why the carve-out happened, with unusual tides getting the blame, but it’s been just that: speculation.
As always with this project, now two years late, there were caveats.
For one, a single property owner, Cynthia D’Angiolini, has yet to sign an easement that would allow the Corps to work on her side of the property. The county had previously indicated that eminent domain proceedings would begin against her if she still held out. There are no such proceedings in Flagler Circuit Court yet, but Hadeed is hopeful the matter will be resolved without forcing the county to go to court.
Hadeed told commissioners that all land certifications–meaning the securing of easements–are expected to be completed by the end of December, including that of the last hold-out. The designs of the project is to be completed by February. The renourishment is to be started in June, taking sand from a borrow pit 11 miles offshore. The county is having to apply for additional permitting for sand from that borrow pit, because the amount of sand required for the project has more than doubled, to 1.33 million cubic yards, from 500,000 cubic yards when initially planned. That’s a reflection of the continuing severity of the erosion on the coast.
Hadeed could not detail the legal proceedings with the hold-out. “Now we’re in a process under the Florida Statutes and procedures that do not permit me to talk about the specifics of that particular matter,” he said, “but I can tell you this: I can tell you that we are proceeding to take all the steps we need to take in conjunction with all of our partners to procure those easements by the project deadline date, which is the end of this calendar year.”
The project will not alleviate the sand loss north of the pier. But it will renourish everything between South 6th and South 28th Street, including the area of South 13th, which has been carved out like the area north of the pier. See the picture above. County government is also planning a beach-renourishment project of its own there, and south of the Corps’ limit (to the Volusia County line).
There were other complications. Two years ago the Fifth District Court of Appeal, whose decisions are controlling law in Flagler County, denied Brevard County’s authority to conduct a beach-renourishment project–not because it wasn’t needed: the court recognized that it was, and still is. But because of the way the county went about securing and defining its easements.
The 2020 decision addressed an Army Corps of Engineers project almost identical to Flagler’s. Brevard’s project was 7.8 miles instead of 2.6, with periodic renourishments slated every three years instead of every 10 or 11, for at least 50 years. Five property owners held out in Brevard. The county filed eminent domain proceedings against them in 2018. But it had overreached when it defined what portion of the beach it needed for the project, and had erroneously included the reconstructed dunes in the portion of the beach that the public may use, even though it’s privately owned.
In order to receive funding from the Corps, the “open sandy beach” portion of each parcel is required to be publicly accessible. That doesn’t mean that the dunes themselves need to be publicly accessible, or considered part of the publicly accessible beach. That confusion cost Brevard County its case against the hold-outs. “The County’s Petition was defective because the legal descriptions provided two potential easement boundaries, rendering them unclear,” the appellate court ruled.
It also ruled: “We find that there is competent substantial evidence in support of the trial court’s finding that there was a reasonable necessity to take easements with western boundaries at the 14-foot elevation contour line.” But “while the Corps required only the continued public use on shores, the County sought an unrestricted public use element on the entire easement area. Even the witnesses for the County recognized that the County sought a greater public use than was required by the Corps.”
In Hadeed’s words, Brevard property owners “were giving up their rights to control their property, because it was making it a quote, public beach for anyone and everyone. And the appellate court said no, that is not valid.” In Florida, the government can only take the absolute minimum of a property to accomplish its project. Hadeed was “very concerned this was going to torpedo our case.”
So Flagler County took two steps to stay on the legal side of that ruling. First, the County Commission approved a resolution defining exactly where the boundaries of the easements are, as opposed to the publicly accessible beach, and also defined what the county will not do, to reassure property owners that there was to be no infringement on their property, or on their property rights. The dunes would remain theirs, and the public would have no right of access across the dunes.
The second step was with the Corps: “Mostly recently, the Army Corps of Engineers allowed us to revise the language of the Army Corps easement form, the standard form for this particular situation that we have with this owner,” Hadeed said. The wording now reflects that of the county’s resolution as an added assurance to property owners. The attorney described it as “a very significant milestone.”
“All we needed,” Hadeed said, “was the right of access to their property to install the sand, install the vegetation, monitor it, come back and repair it when there’s a major storm when there’s a declarant when there’s a declared storm, or in a periodic renourishment, which is you know, is scheduled in our program to occur about once every 11 years.”
In essence, the property owners can still tell people who trespass that they are trespassing, when they are illegally using the dunes to cross down to the beach. The customary public use remains. But it does so where the dunes flatten out, where the beach is the beach, even though that portion of the sands also often belongs to private property owners.
Next was the need to increase needed sands to the 1.33 million cubic yard. “We’ve experienced a lot of erosion. It’s not just this erosion that occurred in August or July or recently. We have been experiencing erosion for quite a bit of time, a lot of sand loss,” Hadeed said. In an interview today, he said: “We have no defenses right now. We are so vulnerable to the effects of any significant storm.”