Posted on February 21, 2022
Faced with an ultimatum from the U.S. Army Corps of Engineers, Flagler County government has outlined a timeline to the federal agency that it hopes will buy it more time before the Corps redirects $17 million earmarked for dune reconstruction in Flagler Beach. Once that money is redirected, there’s no telling when it may be re-appropriated for use in Flagler. The Corps has been indulgent so far, extending the deadline previously.
The timeline would have the county sue two property owners by May 2 for eminent domain, with a court judgment sought by late November. Only by January 2023 would the Corps be able to bid out and start construction on the $25 million dunes-reconstruction project the federal government agreed to pay for in 2017. Flagler County was responsible for the balance of the money outside the federal appropriation. It secured state dollars.
On Jan. 6 the Jacksonville-based District Commander of the U.S. Army Corps of Engineers sent Flagler County government the ultimatum regarding the long-delayed project to rebuild 2.6 miles of dunes in Flagler Beach: “If the County is unable to demonstrate that the needed real estate will be acquired within a reasonable amount of time, whether voluntarily or by eminent domain, the Corps may need to consider whether the project should be placed in a deferred status,” Col. James L. Booth wrote.
Booth was referring to the 141 easements the Corps needs signed from all the property owners whose portions of dune “remnants” on the east side of State Road A1A includes areas the Corps needs to rebuild the dunes. Without those easements, the Corps can’t proceed with the plan to dump upward of 550,000 cubic yards of dredged sand on the beach. The Corps has been seeking those easements since October 2018 “to minimize the risk of delays to constructing the project.”
The county secured 138 easements in the nearly three and a half years since. But two owners have yet to sign easements for three remnants. The county is threatening–and now promising–eminent domain proceedings to “take” the easements (not the land: no land is being acquired, or taken, by any government, only the authority of working on the land is being secured.) So far the two owners are still not signing.
Booth gave the county a Feb. 11 deadline for what he termed an “update.”
The county has been threatening eminent domain action since October 2020, but while still focusing on securing the easements voluntarily. Why the delays? “Petitioning the courts for eminent domain was not an option during the time of the COVID pandemic when court schedules were substantially stalled and the volume of cases we would have needed to initiate were substantial,” Hadeed wrote the Corps. “As if to add to our burdens, the same pandemic complicated our efforts to have easements signed and for in-person meetings to further educate owners.”
The threats were nevertheless part of the strategy. If that didn’t work, then the county would move to the next step. County Attorney Al Hadeed emailed Flagler Beach City officials last month to inform them that this time, the suits would proceed. Hadeed didn’t say when.
But the filing of the suit was not quite imminent. Several steps, “pre-suit requirements,” must be taken first. That explanation was part of Hadeed’s letter to Booth.
For example, even though the county commission has authorized eminent domain proceedings regarding the two owners, surveys are to be completed (they have been) and appraisals of the property certified by March 1. On March 7, the county commission is expected to approve a resolution approving the amount of money to be spent in the proceedings. “This also confirms that the County only intends to “take” the right to repair and renourish the beaches and is not seeking ownership of the dune remnants,” Hadeed wrote Booth.
By law, the county must then make a written offer of monetary compensation to the two owners, even though most of the other owners ceded the land voluntarily. A fund-raising effort led by Flagler Beach residents made money available to earlier holdouts. Some took the mother. But those were private transactions. The two owners will get more opportunities to negotiate based on the amount of money the county is prepared to offer them. “The County has been quite transparent and clear about what it is able to do and not do for the owners,” Hadeed wrote.
Only then, on May 2, would the county file the pleadings with the court–the actual law suit, along with a show cause order that would set a date for the so-called “quick take” hearing. That will take place between May 2 and September 12, depending on the court’s calendar. The judge is expected to be Circuit Court Judge Terence Perkins, who would then presumably rule by Nov. 21. Even then, the court will have 20 days to remit the funds for the taking (the county doesn’t do so directly to the property owners). The funds are from those the county commission will have approved. The county will then get the lands certifications for the three parcels in question, by Dec. 30.
One more complication. The county got a lease from the Department of Interior to dredge sand from the sea floor some nine miles off shore for the project. But the lease was narrowly tailored for the project’s initial estimate of needed sand. Hadeed wrote booth that since then, storms have eroded yet more sand from the beach, requiring more than the original estimate to be dredged. That will require an amendment to the federal lease.
“We pledge our full efforts in bringing this to a prompt conclusion. Accordingly, we will apprise you of reaching each of the milestones as and when we complete them,” Hadeed wrote Booth.
County Attorney Al Hadeed’s Letter and Timeline to the Corps of Engineers (2022):
