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Oct 15th, 2010 | 0


An eight-year-long lawsuit involving a Walton County coastal dune lake has been settled.

By unanimous vote, on Sept. 28 the Walton County Board of County Commissioners (BCC) approved a mediation agreement to settle the litigation based on a number of conditions being met.

The approval took place at the outset of BCC regular meeting in the Walton County Courthouse in DeFuniak Springs. It followed an executive session regarding the lawsuit.

The litigation originated in 2002, when plaintiffs William R. and Patricia Hemby, owners of a CR-30A beachfront home and a number of adjacent vacant lots near Oyster Lake, sued Walton County in circuit court for trespass. Oyster Lake is immediately north of CR-30A, and the lake’s outfall flows into the gulf.

The Hembys’ claim involved occasions when sand and debris were removed from a culvert under CR-30A to lower the lake level and stop Oyster Lake from flooding property surrounding Oyster Lake. The county maintained that all work took place on public right-of-ways. In 2005, following Hurricane Dennis, the county opened up the dune lake outfall, directing it across the corner of the Hembys’ property in an effort to avoid flooding the Hembys’ and a neighbor’s home. That action by the county resulted in the Hembys alleging inverse condemnation. The county maintained that their diversion of the outfall restored natural processes in existence prior to the Hembys purchasing their property in 1992.

Walton County prevailed in the initial trial. The plaintiffs subsequently took the matter to the First District Court of Appeal, resulting in that court finding in their favor. With that decision, the court opined “takings” of the Hemby property in connection with the clearing of the culvert and with the county’s cutting of the outfall through the corner of the Hemby property.

Walton County had obtained grant funds to enhance and restore Oyster Lake, but the work was suspended when the appeals court ruled against Walton County.

In 2009, Walton County appealed to the Supreme Court of Florida for a review of the appeals court decision, but that court declined to accept jurisdiction and dismissed the case. In February 2010, the parties again appeared in Walton County Circuit Court following a new motion filed by the plaintiffs, and Judge W. Howard LaPorte directed that a jury to be convened “to consider the extent of value as a result” of the takings found by the appeals court.

Both William and Patricia Hemby died during the course of the litigation. Their successor Cozette Drake was substituted as plaintiff in the lawsuit.

In the settlement, Walton County agrees to pay $525,000 to the plaintiffs “for all real estate compensation and attorney’s fees and costs.” Those funds are to be held in escrow for up to 30 months until the other conditions of the agreement are met.

Among those conditions are the construction by the defendant on the edge of their property of a “stabilization channel” for the Oyster Lake outfall “in accordance with the regulatory agencies’ permits.” Upon completion, the channel is not to be considered a natural outfall, and the 50-foot setback required for natural dune lake outfalls will not be applied.

The defendant (Walton County) is to have a permanent easement to the area where the stabilization channel is constructed and rights to perform maintenance or construction as needed to maintain the outlet, subject to certain conditions.

As part of the agreement Walton County agrees to provide the plaintiffs with a letter to the state Department of Environmental Protection to aid in pursuit of a state permit for construction of one single-family home on their property. The county further agrees to “apply a 25-foot setback from the water’s edge for the building setback” rather than a 50-foot setback when the building permit application for the home is made.

The agreement requires the $525,000 to be returned to Walton County with accrued interest if the state does not grant a permit for the construction of the stabilization channel.

Following approval of the agreement, the BCC also voted to set an Oct. 12 public hearing to identify and approve the use funds associated with the county’s responsibility per the agreement. The hearing will be in conjunction with the regular BCC meeting on that date, which is to begin at 4 p.m. and take place at the Walton County Courthouse in DeFuniak Springs.

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