Last October the city of Ormond Beach sued Flagler County to stop the county from using an access easement in forested land that crosses into the city for a third of a mile. The city fears that the county will in the future turn that easement, known as “the 40 Grade,” into a paved highway. The county considers Ormond Beach’s fears absurd. It claims that it’s only using the easement to manage wild land that happens to straddle the county line.
The county argued a motion to dismiss the lawsuit before Circuit Judge Dennis Craig in Volusia County on Nov. 3. Craig didn’t rule. Instead he suspended the lawsuit until June 9, giving both sides the chance to work things out. On May 16, the County Commission and the Ormond Beach City Commission will hold an extraordinary joint meeting–on Ormond Beach’s City Hall turf–in an attempt to do just that.
Assistant County Attorney Sean Moylan has handled the case for the county so far. The arguments won’t be a mystery. The question is whether Ormond Beach will be trusting enough in the county’s promises, including a pledge to put those promises in writing, to reverse course and end its lawsuit.
The entire dispute revolves around 1,750 feet of a dirt path on Ormond Beach’s side. The city considers Flagler County’s use of that road illegal. The dirt road was a logging road that extends 2 miles into Flagler County and what used to be a pine plantation run by a timber company before the 1990s. The county has been restoring the land and managing its wetlands. The road crosses two tracts of conservation land, one of them belonging to Flagler County, the other to U.S. Capital Alliance, a developer of the Hunter’s Ridge subdivision at the south end of the county, and a co-defendant in the lawsuit. U.S. Capital’s role at the coming meeting is unclear.
Flagler County considers the use of the road legal. It acquired the easement for 40 Grade from Capital Alliance in 2017. “The County utilized the 40 Grade Easement for half a decade, without objection from the City, to access and manage approximately 2,000 acres of conservation lands owned by the County [on both sides of the county line], for environmental purposes as required by the County’s Hunter’s Ridge DRI/Development Order, including silviculture and feral hog removal,” the county states in a resolution.
“Rather than constructing a new access road in conservation lands, it was prudent for the County to utilize Forty Grade because it was an already disturbed area of dirt road, constructed by Georgia Pacific prior to the existence of the Hunter’s Ridge DRI. It provides the only viable route to the County’s conservation lands for logging trucks. Importantly, the 40 Grade Easement does not provide the County access to the conservation lands adjacent to the easement strip that are to be conveyed to the City but only crosses through those lands for a distance of one third of a mile.”
Notably, 40 grades plays an emergency-exit role in heavy rains, for residents of both Hunter’s Ridge and Ormond Beach, when Durrance Lane, which is not maintained, floods. It’s not a frivolous road. The county wants to convince Ormond Beach that it’s not trodden by a trojan horse, either.
In 2021, in what the county called a “richly ironic” request, Ormond Beach asked the county for permission to place water-supply wells on the county’s side of the conservation acreage, wells the city said it would access using 40 Grade. The Flagler County Commission heard the matter and granted permission.
Last October the city at a public hearing judged the county’s use of 40 Grade out of compliance with the development document that controls Hunters Ridge (the so-called Development of Regional Impact, or DRI), even as Moylan addressed the city commission and insisted the matter could be resolved amicably, with a joint agreement between the two sides.
Two days later, Ormond Beach sued.
Flagler County has been peeved by the city’s methods, going as far as questioning the city administration and Ormond Beach Mayor Bill Partington for the way the city documented its action against Flagler, following the public hearing: “In contravention of the Sunshine Law and the constitutional standards for quasi-judicial hearings,” Flagler County claimed in a footnote in its motion to dismiss, “the City’s Mayor executed a resolution that was materially different from the resolution that was published with the City’s agenda for the public hearing, and which was not approved by the City Council at the public hearing. There was no public notice to consider the resolution that was ultimately executed, no public meeting, no opportunity for public comment, and no opportunity for parties with legal standing to object.”
Footnoted or not, those are serious allegations that, if validated in legal proceedings, would weaken the city’s position. The footnote is a velvet-gloved warning that the county is not without a legal arsenal of its own.
The county at least succeeded in invoking a state law that requires more attempts at conflict-resolution before a lawsuit is filed. When Moylan argued the motion to dismiss in a 75-minute hearing, it was on the basis of that law: the lawsuit should be dismissed until all other negotiating avenues were exhausted.
Meanwhile, County Administrator Heidi Petito, in a November letter to Ormond Beach City Manager Joyce Shanahan, summarized what Flagler County considers a path to a resolution: “We believe we can eliminate the stated concerns of City staff and commissioners that Flagler County may one day pave 40 Grade into a public thoroughfare through the filing of a more restrictive easement document, entering into an interlocal agreement along the same lines, or both.” (“Interlocal agreement” is another way of saying “joint agreement.”)
It really is that simple and, aqs the county sees it, absurd to see nefarious designs behind its use of the road. Paving 40 grade, the county stated in a resolution, “in such a remote location would be illogical, that the County prioritizes the paving of residential dirt roads, virtually all of which are funded by state grants. The County has no funds, nor would it divert paving dollars for a hypothetical road to no destination for its residents.”
Of course times, and commissions, and demographics–in a county growing by over 5,000 residents a year–change.
Shark says
Has Flagler County ever won a lawsuit ????? Just give it to them and save a few million !!!
Chris Conklin says
let’s have a meeting to set up a meeting. waste of time
dave says
Put it this way, It’s NOT Flagler County property.
Mike says
Flagler county will stop at nothing to gut and destroy woodlands, even if not theirs!
Angel Berrios says
Just flip a coin
TR says
Nothing like waiting until the last hour to try and figure it out. The counties have had 6 moths to get together and try and figure it out and now that they have one month left they think they’ll be able to? Not going to happen and then go back to the court to decide. which by the way should have done the first time it was in front of the judge. IMO this is a bunch of bull to wait this long to sit down and try to settle it. they should have started talking within a week of the judges decision last Nov.