By DOTTY NIST
The end of 2016 brought with it two new lawsuits against Walton County. Both were filed in Walton County Circuit Court.
Greater Driftwood Estates lawsuit
Filed on Dec. 11 was a lawsuit brought by the Greater Driftwood Estates Homeowners Association and individual parties owning property within the Driftwood Estates Part I subdivision.
Defendants include Walton County, the Walton County Board of County commissioners (BCC), two current Walton County commissioners, and one former Walton County Commissioner.
The commissioners and former commissioner are named in the 59-page complaint both as commissioners and individually. They include current commissioners Sara Comander and Bill Chapman and former commissioner Bill Imfeld.
The Driftwood property is an arrowhead-shaped peninsula extending into the Choctawhatchee Bay north of Sandestin Resort. Much of the property was included in the Sandestin Development of Regional Impact (DRI), which was first adopted by Walton County in 1976. Although under separate ownership, Driftwood is still considered part of that DRI.
The lawsuit plaintiffs’ property is in what is known as Driftwood I in the exterior portion of the peninsula, where substantial development began in the late 1990s. Platting and development Driftwood II, the interior second phase of the subdivision, began in the early 2000s.
The lawsuit alleges that “irreparable harm” to the plaintiffs has, is, and will continue to occur due to the county issuing permits and approvals and extending services that affect them without providing them with due process or “opportunity to be heard.”
The lawsuit references an area within the Driftwood interior property that was designated as open space in the original Sandestin DRI. “The County has wrongfully and knowingly allowed construction of 463 single family homes on approximately 128.3 acres of Open Space in Driftwood II,” the plaintiffs maintain.
They allege that “county action and inaction” have caused nuisances and adverse impacts, among those impairment of value and enjoyment of the homeowners’ property and safety hazards due to standing water, flooding of access points, and flooding and overflow of retention ponds.
“Other nuisance and negative impacts,” the complaint continues, “from the interior development and construction include substantial cracking of roads, stormwater infrastructure and sidewalks because of improper construction upon unsuitable fill which also causes substantial cracking of stucco on many homes as well as cracked housing slabs.”
The lawsuit references a verified complaint served to the county in 2013 containing allegations that are part of the lawsuit, among those being assertions associated with the stormwater system maintenance and open space DRI requirements.
“Walton County has taken no action to address, remedy or rectify the circumstances that relate to the allegations stated in that verified complaint,” the homeowners charge.
In their lawsuit, the homeowners seek from the court, among other demands, an injunction and judgment to compel the county “to maintain the stormwater infrastructure system, reasonably restore the Open Space, wetlands and the planned conditions within Driftwood such that those areas serve as much of the function for which they are intended.”
The plaintiffs are represented by Shawn Heath of the Tallahassee law firm Dudley, Sellers, Healy & Heath, PL.
Rosemary Beach lawsuit
Filed on Dec. 14 was a lawsuit brought by the Rosemary Beach Property Owners Association against the BCC concerning the customary use ordinance approved by the county commissioners on October 25.
Set to take effect on April 1, 2017, the ordinance provides for the public at large to use the dry sand area of the beach in Walton County for traditional recreational activities, with the exception of a buffer zone set aside at a distance seaward of the toe of the dune, or at the same distance from any privately-owned permanent habitable structure on or adjacent to the dry sand areas of the beach, whichever is more seaward.
The ordinance defines the dry sand area of the beach as, “the zone of unconsolidated material that extends landward from the mean high water line to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation, usually the effective limit of storm waves, whichever is more seaward.”
In the complaint, it is noted that homeowners make up the association’s membership and live “in what is known as the Town of Rosemary Beach.” It is further noted that the lawsuit plaintiff, the property owners’ association, is a Florida not-for-profit corporation, that it owns beachfront property on behalf of its members, and that it manages all common areas of Rosemary Beach, among those the beach east to west along the gulf at the south end of Rosemary Beach.
“The common beach property of the Plaintiff is owned, fee simple, by the Plaintiff, to the mean high water line for the benefit of all members,” the complaint states.
It is observed that the Rosemary Beach beach is within the affected areas of beach referenced in the customary use ordinance.
While referring to the “limited right” of Florida citizens to traverse the beaches seaward of the mean high water line as set forth in the Florida Constitution, the complaint asserts that the ordinance “departs from this right.”
It further maintains that establishment of customary use by means of the ordinance “is without legal authority.”
The complaint references ongoing proceedings in federal court “litigating the status of customary use in Walton County.” It alleges that, by passing the ordinance, Walton County “circumvented the acknowledged route” to establish legal customary use in a judicial manner. In doing so, the association further argues, the county’s action violated the homeowners’ right to due process.
“All owners of property within the Rosemary Beach community who purchased lots within the community under the expectation of exclusive use rights to the beach will be affected as will all of South Walton beach front owners,” the complaint states, in part, referring to implementation of the ordinance.
Among requests contained in the complaint are a declaratory judgment by the court as to whether the ordinance is void due to its attempt to “establish customary use through legislative act as opposed to judicial determination…”
Also requested is “permanent injunctive relief to the Plaintiff,” barring the county from enforcing and/or implementing the ordinance until a court ruling on the requested declaratory judgment “and/or a final, non-appealable Court ruling finding that customary use has been proven by the county.”
The Rosemary Beach Property Owners Association is represented by David Pleat of Destin law firm Pleat & Perry, P.A.
There has been no responsive filing by the county at this time in either of the two lawsuits.