Oyster Lake decision to set precedent

kurt · #1 05-17-2009, 09:36 PM

Oyster Lake decision to set precedent | county, court, lake - Local News - WaltonSun.com

Mary Brady

Quote:

"This case is going to be a precedent," said Jacquee Markel, Oyster Lake resident and activist with COOL (Citizens of Oyster Lake). "My fear is that if the case is not made on what a coastal dune lake is, if they don't know what an outfall is, how can they make an educated decision? In previous judicial proceedings, the outfall was referred to as a drainage ditch."

"We need to get out there and start educating people in the state," said Marsha Anderson, chair of the Walton County Coastal Dune Lakes Advisory Board. Anderson, who is fifth generation in the County, said the clash of property rights with environmental concerns is at the heart of the matter.
"We don't want to end up with concrete sea walls like in Bay County," said Anderson.

As a result of the county opening the Oyster Lake outfall following hurricanes in 1995 and 1999, some land was lost in the outsweep. Historically, an outsweep can change dramatically over time and its path can naturally be reshaped and widened. A lawsuit by the affected homeowner - Drake vs. Walton County -- charged the county with illegal taking of the land.

In the initial ruling in the case, the circuit court ruled in favor of the county. The First District Court of Appeals in Tallahassee overturned that ruling in favor of Drake. Walton County re-filed, with both the South Florida and St. John's Water Management Districts filing briefs in support of the county.

The court never ruled on the motion, but certified the case to the Florida Supreme Court, strengthening the likelihood that the Florida Supreme Court will accept jurisdiction in the matter.

On April 14, Walton county commissioners approved the request of County Attorney Mike Burke to take the case to the Florida Supreme Court for resolution. The Tallahassee firm of Nabors, Giblin & Nickerson has been retained to handle the case for the county.

On May 11, commissioners approved application to the Florida Department of Environmental Protection for a permit allowing restoration of an Oyster Lake landowner's property to its previous condition. Access to the property by the county to open the outfall had been granted the county by the property owner contingent upon such restoration.

With the appeal pending to the Florida Supreme Court, it is unlikely that the DEP will take any action on the permit.

"I personally feel that it's very important for the coastal dune lakes to open naturally and with nature," said Commissioner Cecelia Jones. "We had an emergency situation causing flooding of homes that's caused us to petition the Florida Supreme Court to reverse the decision allowing landowners to block the opening," Jones said.

At issue in the case is a temporary armoring order authorized by the Florida Department of Environmental Protection in 2004. The order gave an Oyster Lake property owner the right to construct a temporary structure to protect his property from flooding. The structure is still standing five years later.

As the result of waters rising to a high level against the "temporary" structure on Oyster Lake, an adjacent homeowner sought and obtained permission to build his own structure to protect his property from flooding.

Overarching issues of coastal dune lakes management
One approach to avoiding the types of dispute illustrated by this case would have the county purchasing lands critical to management of the lakes.
"In 2002, we were told by (county administrator) Ronnie Bell that purchase of these lands is one of the top five priorities of the county, but where is the plan? There is no appropriation and this is the critical time," said Markel.

According to Bell, Walton County's fiscal year 2009 federal request, as well as those of the past three years, has included $500,000 for a coastal dune lakes environmental assessment "to help document that these lakes are rare and threatened."

"Our federal and state lobbyist continues to research every option available for funding to purchase the lake outlet properties, but since the federal and state budgets are very tight at this time we have not identified any current funding sources," said Bell. "We will continue to research funding options and hopefully our federal request will be funded this upcoming year."

Plenty of other public education issues are facing those concerned with protecting the 15 coastal dune lakes in Walton County, including appropriate use of fertilizers, vegetation removal or maintenance and land clearing. Sarah Kalinoski is grants coordinator for the Choctawhatchee Basin Alliance, an environmental group working in partnership with the county to monitor and protect the health of the coastal dune lakes.

Kalinoski often finds her organization in the middle of disputes between the county and coastal dune lakes resident's advocacy groups. One of those disputes presently involves Eastern Lake, where homeowners are divided concerning the level and strategies of management that the county should employ in balancing environmental concerns, with use, enjoyment and protection of private properties.

"Natural systems are dynamic," said Kalinoski. "Given the level of development in South Walton, this will be an ongoing debate."

"We that live on the lake see the change going on and we don't think it's for the best," said Hal Smith, President of the Eastern Lakes Neighborhood Association.

Next steps on Oyster Lake
The next step in the appeal process will be the filing of a jurisdictional brief. If the Florida Supreme Court accepts the case, a briefing schedule will be set.
"We will file the notice of appeal this week. As far as the water management districts are concerned, we do not know if they will join in or not, but they are very interested," said Greg Stewart, the primary lawyer on the case for Nabors, Giblin and Nickerson.

"The St. Johns District believes the appellate court majority opinion incorrectly applied some of the fundamental principles of flood takings law," said Teresa Monson, senior communications specialist for the St. Johns River Water Management District. Before the jurisdictional brief is filed by Walton County, the district will need to determine whether to ask the Florida Supreme Court permission to become an amicus curiae, or "friend of the court." That decision has not been made.

The Northwest Florida Water Management District indicated that they have taken no position on the case at present.

Meanwhile, the BCC decided that it will hold a public workshop with the Oyster Lake homeowners. A date for that workshop has not been announced.