Ormond Beach attorney Cliff Shepard said in a mediation meeting between Flagler County and the city that the main issue in its lawsuit against the county is not about conservation.
“This is a sovereignty question, much more so than a conservation question,” he said. "...They [the developer] had no right to convey to you that which they did not have."
Ormond Beach and Flagler County representatives met on Feb. 6 at Ormond Beach City Hall to discuss potential resolutions that would avoid further litigation. Ormond Beach filed a lawsuit against the developer U.S. Capital Alliance, LLC and Flagler County on Oct. 27 over what the city calls violations to its development agreement with U.S. Capital’s Hunter’s Ridge development.
Ormond Beach’s lawsuit cites that U.S. Capital violated its development agreement by not conveying almost 300 acres of conservation lands to the city and issuing Flagler County a 60-foot-wide public road easement in 2017 through those conservation lands. Among the listed violations in the lawsuit, the city’s complaint said the easement violated the city's comprehensive plan for conservation lands.
Shepard said in the public meeting that Ormond Beach is looking to have the easement removed and then the city may be willing to work out resolutions to the access needs by Flagler County and the developer.
Shepard said the city would like to see the easement released and an interlocal agreement or some kind of contract between the Ormond Beach and Flagler County granting the county access through the 40-grade.
The easement the county has from U.S. Capital grants it access-rights to the 40-grade in perpetuity, without being subject to future changes like an interlocal would, Flagler County assistant attorney Sean Moylan said.
Shepard said the perpetuity was the concern.
"The nonstarter is you cannot keep what you unlawfully took, even if it was accidental," he said.
Shepard said his communications with county attorney Al Hadeed, who was not present at the Feb. 6 meeting, had a focus on the conservation side of the lawsuit, but Shepard said the issue was not about conservation at all.
"It's not like we're anti conservation," he said. "We are pro protecting our sovereignty."
"You're pro litigation," Moylan said.
"Well," Shepard said, "guilty. Because I'm going to win."
Moylan also said that any agreement changing the easement would also need to be approved by developer, who holds the title on the property title with the 40-grade until it conveys the land to Ormond Beach.
The developer and their lawyers were present at the meeting and said they would be willing to work to resolve the solution.
Both parties agreed to ask their respective elected officials if either voiding the easement and then entering into a contract agreement between all parties that would grant necessary access to the 40-grade but explicitly limit that access would suffice, or possibly just altering Flagler County’s easement in a way that would satisfy the city.
FLAGLER FILES MOTION TO DISMISS ORMOND BEACH LAWSUIT
Ahead of the conflict assessment meeting, Flagler County has filed a motion to dismiss the city’s complaint against it. The county’s motion cites that Ormond Beach has failed its statutory requirements to hold a conflict assessment meeting before filing litigation, as required under Florida Governmental Dispute Resolution Act.
Flagler County attorney Al Hadeed told the Observer ahead of the Feb. 6 meeting that the county has tried to arrange a conflict assessment meeting with the city since the lawsuit was filed. The Feb. 6 date was only finalized in early January.
Moylan similarly said as much to Shepard in the Feb. 6 meeting. Moylan even listed several public notices the county sent to Ormond Beach, and did not receive any objections.
Shepard said it is not the city’s responsibility to tell the county not to break the law.
A hearing is currently scheduled for 9 a.m. on March 11.