The City of Ormond Beach is suing Flagler County government and a developer in the Hunter’s Ridge subdivision at the south end of the county, claiming that Flagler and the developer entered into an illegal agreement ceding an easement to the county that crosses a conservation area belonging to the city. Flagler County’s denials aside, Ormond Beach fears–and is convinced–that the county will one day use the 60-foot-wide easement to build a paved road.
Though Ormond Beach is required to provide water to Hunter’s Ridge residents on both sides of the county line, the Ormond Beach administration is threatening to cut off water to the Flagler side, according to Flagler County’s assistant attorney, as part of the dispute, whose bitter tenor was apparent at an Oct. 25 special meeting of the Ormond Beach City Commission.
The lawsuit, filed two days later in Volusia County Circuit Court, seeks to declare the easement void, and seeks damages exceeding $50,000, plus attorneys’ fees. It was filed just as the county has been attempting to extricate itself from a thorny, costly, unrelated four-year-old lawsuit over a restaurant’s lease at Bing’s Landing. Flagler suddenly finds itself facing what could be another draining legal dispute, this one affecting 2,000 acres of conservation land and, of course, hundreds of residents in an ever-expanding development.
Ormond Beach’s decision to sue took Flagler County by surprise, because when Sean Moylan, Flagler County’s assistant attorney, was addressing the Ormond Beach City Commission, he got the sense that there would be a 60-day window to negotiate. The city commission’s special meeting was called to approve a resolution that specified measures to address the dispute–but not to green-light a lawsuit.
“The City Commission did not address our comments,” Moylan said, addressing the County Commission on Monday, and alerting it to the lawsuit getting filed, “did not do much to acknowledge what we said, and went ahead to vote to find the developer, US Capitol Alliance, in non-compliance with the development order, and also dragging the county into it over this easement. It came as a great surprise to us because at that City Commission meeting on the 25th, what they voted on was to give Flagler County and the developer 60 days to deal with the issue to address their concerns. That’s the resolution they adopted. And then however without telling us, two days later, they filed a lawsuit. So they didn’t give us the 60 days. They filed the lawsuit.”
Nor did Ormond Beach follow state law’s requirement to follow the Conflict Resolution Act, which calls on local governments to follow certain mediative procedures before filing a lawsuit. “They did not do that,” Moylan said. Flagler County may invoke the act. Moylan asked the County Commission to put that in motion, which the commission did on Monday. “It could potentially end up leading to a joint meeting of this county commission and the Ormond Beach City Council. And if all of that fails, then we would resort back to litigating,” Moylan said.
Then there’s the water issue. Ormond Beach is responsible for providing water to the Flagler County portion. Now Ormond Beach is threatening to cut that off, “a very drastic action your staff is asking you to take,” Moylan told the city commission. “We can work together on things like that instead of putting us in tuis adversarial posture. So please, it would be a breach of your agreement to cut off the water supply. We ask that you not take such a drastic action, and let’s work together if you’re concerned about that 40 Grade easement.”
Hunter’s Ridge, approved in 1991, is a major, long-term development–a development of regional impact, or DRI–that straddles Flagler County and Ormond Beach. But it has two separate sets of development orders or agreements, one abiding by Flagler County’s comprehensive plan, and one by Ormond Beach’s. Naturally, the portion in Ormond Beach is controlled by Ormond Beach regulations, and the portion in Flagler is controlled by Flagler regulations.
The developer, Orange City-based U.S. Capital Alliance, was required to unconditionally convey two conservation parcels to Ormond Beach. It donated one of them. The city has incorporated the two parcels in its boundaries and designated them as open space/conservation. The second parcel (Parcel B) includes a fire trail.
In 2017, the developer conveyed to Flagler County a 60-foot-wide public access and road easement from State Road 40 in Ormond Beach to Strickland Road and Durrance Lane on the Flagler side, allowing the developer and the county to build and maintain that road. The Flagler County Commission had approved the agreement at its Dec. 5, 2016 meeting.
The easement crosses Ormond Beach’s conservation land, which the city says is required “to be used and managed exclusively for the maintenance, preservation, and restoration of native upland and wetland ecosystems.”
That means almost all development activities are prohibited, in the city’s view, except for “limited excavation and filling necessary to
restore the natural hydroperiod of the area and limited construction of environmental educational facilities and nature trails.” A “hydroperiod” is the time when a wetland is actually wet. The developer, however, has not provided a hydroperiod restoration plan for Parcel B, the city argues. But that’s a minor part of the dispute and doesn’t involve Flagler County.
This does: Ormond Beach considers that easement agreement to be in violation of the development order and of its own comprehensive plan, and Flagler County to have no authority to enter into such an agreement with the developer.
Addressing the city commission, Moylan made the case both for the easement and against the city’s fears that it would become something other than a utility road. “This easement allows us to access approximately 2,000 acres of conservation lands and to conduct land management activities on that land,” Moylan said.
The easement is commonly referred to as 40 Grade.
The county amended the development order in 2010 to require access to its conservation lands. 40 Grade is the only viable access for Flagler County’s trucks that are required to manage the conservation area–logging trucks, fire mitigation, feral hog removal.
“There’s all sorts of requirements to manage the land, you can’t just sit on it and own it, you have to manage it, and 40 Grade is our only real access, and it was prudent for us to use 40 Grade because it was an already disturbed part of the conservation area,” Moylan said. “It’s an existing dirt road. Rather than try to destroy conservation areas and create some new roads, we thought it would be prudent to use an existing road to which there are a number of easements.” If the county were to give up its own easement, other people would still have theirs. “The dirt road is not going anywhere,” Moylan said. The county has placed some shell on it to stabilize it.
Flagler County recognizes that the easement document is “broad in scope, with references to utilities that make it look like a standard roadway easement that lends itself to a paved road or a throughway, which in turn would increase traffic on State Road 40.
“We have no plans in Flagler County to pave or otherwise develop that roadway. It’s not in our five-year capital plan. It’s not in any plan,” Moylan told the city commission. “We don’t have the money for it. We rely heavily on small-county grant programs from FDOT to pave residential streets in our jurisdiction. We have thousands of residents on dozens of miles of dirt roads that we would love to pave. We are not going to pave a roadway in the middle of the wilderness. To what end? So I hope you can understand that that is simply not in the cards, and if you would like to have conditions on our use of that easement, if you’d like an easement that is more restrictive and more along the lines of what you’d expect in a conservation area, I’m sure that the Board of County Commissioners would be happy to talk about that or to enter into an agreement so that you’re not worried that one day in the future we might actually pave that roadway.”
COMPLAINT – Ormond Beach v Flagler County, October 2023