Summer Haven River--- excerpt from article in St. Augustine Record, 02/27/2011 ---
The [Summer Haven] river began to die in October 2008, after rough surf from Tropical Storm Fay followed by a nor'easter cut a wide breach in the dune barrier at Summer Haven. Seawater poured through the breach. Immediately after the breach, St. Johns County officials worked with the Florida Department of Environmental Protection to seek an emergency permit to repair the dune system.
However, then-Gov. Charlie Crist did not issue an emergency declaration, so the emergency permit was not approved.
Over years, the sea continued to surge through and drop its suspended sand into the Summer Haven River.
Can politics fix what it broke?
Politics didn't break through the replenished sand on the barrier island dune and create a new inlet to the Summer Haven river - Mother Nature (or Gaia or God if you prefer), blowing a nor'easter, did.
But long before that storm politics had allowed for the interference with the natural ebb and flow of the fresh waters draining the mainland into the salt waters of the Atlantic Ocean.
Old maps, historic accounts and geophysical analyses confirm that the southern inlet (now called Matanzas or Mantanzas Inlet) of the ocean into the Matanzas River shifted back and forth as a result of hurricanes and nor'easters through the centuries, with the recent 2008 breach at the site of a previous and further south inlet, where it existed when the Europeans first sailed the coast 500 years ago.
The north mouth of the Matanzas River is at the St. Augustine Inlet which had the constantantly changing shoally sands east of the fort at present day St. Augustine. Tributary creeks drain from the mainland into the River, which forms the western shore of the barrier island (Anastasia Island).
The incoming ocean waters from the St. Augustine Inlet and Matanzas Inlet at high tide meet at the roiling churning maelstrom of Devil's Elbow; and then the tidal ocean/fresh/brackish waters divide, flowing north to St. Augustine and south to Summer Haven until low tide twice a day.
The first major political attempt by human engineering to interfere with the natural flows came in 1923/1924 when the Army Corps of Engineers dug a deep channel through the constantly changing islets and shoals at St. Augustine Inlet to create a year 'round commercial port for fishermen and tourists.
At the same time they dug the Intracoastal Waterway from Jacksonville to Miami, using existing rivers where they could for the main channel, and digging artificial canals/channels to shortcut and channel meandoring rivers and horseshoe bends.
Those artificial digs in the inlets and the waterways have required regular dredging - at taxpayers' expense - every few years to combat the consequential counterattack of Mother Nature's natural ebbs and flows.
The natural flows of the Matanzas River and the Summer Haven River to the Atlantic at Matanzas Inlet were bypassed by the straight artificial canal dug from Ft. Matanzas to Marineland.
That Intracoastal Waterway canal created Rattlesnake Island, extending from Ft. Matanzas to Marineland, with the island bounded on the east by the Matanzas and Summer Haven rivers and on the west by the Intracoastal. That cut significantly changed the amount and speed of the ebb and flow of both rivers to the sea, filling Matanzas with sediment, which also has had to be dredged many times through the years.
Here is an overlay of the changing movements and positions of Matanzas Inlet and the formation of barrier islands from 1765 to 1923 prior to human engineering:
In 1923 there were only a few residents on Summer Haven Island adjacent to the Mellon compound and along the Summer Haven River (now Gene Johnson Rd), and almost none between Crescent Beach and Matanzas Inlet on the south half of Anastasia Island.
Then in 1964, Mother Nature (or God or Gaia) struck back when the eye of Hurricane Dora came ashore at the Matanzas Inlet, blowing a hole clean through Rattlesnake Island from the Atlantic Ocean to the Intracoastal Waterway.
Now the Matanzas Inlet waters rushed straight east/west with the changing of the tides, deepening that new channel, but allowing both the Matanzas River to the north and the Summer Haven River to the south to silt up with sediment as their flows decreased.
Subsequently, as the Summer Haven River had less and less tidal action, people began building on the sand spit between old A-1-A and the barely flowing River.
Then once again political pressures and human engineering came into play and by 1974 the Dora gap was filled and both rivers began again to flow with the tides.
Ned Mellon offered Rattlesnake Island to the State of Florida as a nature reserve/recreation park and was turned down. Later his son renamed the south half as Summer Island, and the current development was built.
The shifting sands since the Intracoastal was dug, since Dora, and since Dora's refill: http://fcit.usf.edu/florida/teach...nce/mod2/changing.coastlines.html
Millions of federal, state and county taxpayers' dollars have been spent in combating the natural flows for years from the Intracoastal Waterway to the Atlantic beaches - dredging, replenishing, etc - all political decisions made by elected and appointed representatives.
Actuallizing the when, where and how to divert, deflect, modify, block nature can be very expensive. The political questions are "Who benefits?" and "Who pays?"
Please post source of graphic if you have it. I'm sorry but my eyes are crossed and a quick scan of your post didn't catch it. Plan to come back to actually READ it later! Thanks.
NEVER MIND! JUST CLICKED THE LINK IN YOUR POST AND FOUND IT!
Local news outlets are reporting that a closed meeting will be held to discuss the most recent Summer Haven/A1A lawsuit.
Here is the background:
District Court of Appeal of Florida, Fifth District.
JORDAN v. ST JOHNS COUNTY
Robert JORDAN, Linnie Jordan, et al., Appellants, v. ST. JOHNS COUNTY, et al., Appellee.
-- May 20, 2011 Thomas E. Warner and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for Appellants.Stephen B. Gallagher, Robert H. Sturgess and Stella J. Lane of Marks Gray, P.A., Jacksonville, and Patrick F. McCormack, St. Augustine, for Appellee.
The Appellants all own parcels of real property in Summer Haven, a subdivision located on a barrier island just south of the Matanzas Inlet. The only vehicle access to Summer Haven is by a county-owned road known as Old A1A. The underlying complaint centered around allegations that the Appellee, St. Johns County, failed to adequately maintain Old A1A. In this appeal, the Appellant property owners challenge the final summary judgments entered in favor of the Appellee County. For reasons we will explain, we affirm in part and reverse in part.
By way of background, in 1960 the State of Florida rerouted State Highway A1A approximately 800 feet to the west of its original location. The original shorefront roadway naturally became known as Old A1A. The state deeded the road to St. Johns County in 1979, together with the accompanying right-of-way. The 1.6 mile stretch of road was bordered on the east by the Atlantic Ocean and on the west by the Intracoastal Waterway. When the County took title to Old A1A, there were already a few beachfront homes and several platted lots abutting the road. The parcels ran from Block 3 in the north to Block 65 in the south. The County issued a number of building permits over the years, and several additional beachfront homes were built. Old A1A stood between the beachfront lots and the ocean, and it served as the only means of vehicular access to those parcels of property, which together came to be known as the Summer Haven subdivision.
Old A1A is subject to repeated damage from natural forces such as storms and erosion, which makes the road difficult to maintain. A group of Summer Haven property owners filed suit against the County, seeking relief for what they viewed as the County's intentional failure to maintain the road in useable condition. Count I of the fourth amended complaint was for declaratory relief and sought a determination of whether the County had a duty to maintain the road. Count II requested a permanent injunction compelling the County to maintain the road at a certain level. Count III claimed inverse condemnation for the diminished access to Summer Haven. Counts IV and V, respectively, contained claims for declaratory relief and inverse condemnation based on a county ordinance that placed a temporary moratorium on the issuance of residential building permits for Summer Haven.
The County filed a counterclaim seeking a declaration that the County had the sole authority and discretion to determine what constituted reasonable road maintenance. In addition, the County filed a third-party complaint to ensure that all Summer Haven property owners were joined in the suit with the original group of plaintiff-owners. The third-party complaint contained five counts for declaratory relief, which roughly corresponded to the five counts of the fourth amended complaint.
Ultimately, the trial court entered final summary judgment in the County's favor on all of the counts in all three pleadings. The Appellant property owners collectively challenge those three judgments in this consolidated appeal. We conclude that summary judgment was improvidently entered on Counts I and III of the fourth amended complaint.
We reverse the summary judgments on Counts I and III of the fourth amended complaint because we believe the trial court's decision went too far. With regard to Count I, the trial court effectively held that the County had no duty to repair or restore Old A1A, except in its absolute discretion. This is basically the County's position on appeal. The Appellants, on the other hand, argue that the County has a duty to repair and maintain its roads in "good order," and that it has failed to do so.
To resolve the matter, we turn to the reasoning of our sister court in an analogous case. In Ecological Development, Inc. v. Walton County, 558 So.2d 1069 (Fla. 1st DCA 1990), a corporation sought damages, declaratory and injunctive relief, and a writ of mandamus, based on allegations that the county refused to maintain the public roads leading to certain subdivisions.
Indeed, the county voted to terminate maintenance of the roads but did not formally abandon them.
The county believed that considerable maintenance problems caused by improper construction justified its decision to refuse further repairs to the roads. The First District Court held that the county had no authority, after accepting designation of a public road, to disclaim responsibility for maintenance of that road except by following the formal statutory abandonment procedures. The court noted that "Boards of County Commissioners are given plenary power and authority over the location, building, repairing, and keeping in order the public roads in their respective counties, and it is made one of their continuous duties so to locate, build, repair, and keep said roads in good order." Id. at 1071 (quoting with emphasis State ex rel. White v. MacGibbon, 84 So. 91, 91 (Fla.1920)). The court concluded:
[A] county is not obligated, nor can it be compelled, to perform or provide for any particular construction or maintenance, except such as it voluntarily assumes to do. This is far removed, however, from the notion advanced by appellee [county] that it can accept established roadways within the county, undertake to maintain the same, and later by resolution or other official action (short of abandonment) relieve itself of all duties with respect to maintenance of such roads.
The court in Ecological Development held that the corporation was entitled to a narrow declaration that the county had no authority to place a public road on a "no maintenance" status while still retaining the county right-of-way for control and use as a public road. The relief granted did "not encompass any declaration by the court with respect to the county's exercise of its discretion regarding the frequency, quality or extent of maintenance for the roads in question." Id. at 1072. The court also found "no basis for relief by way of injunction or writ of mandamus to compel the county to immediately resume maintenance work, or to restore the roads to their prior condition." Id. The court declined to decide whether the corporation might be entitled to further relief under different pleadings and evidence.
The present case is distinguishable from Ecological Development in two important respects. Most importantly, the posture of the appeal is different. The judgment appealed there was entered following a bench trial, while this appeal proceeded from a summary judgment. In addition, the county there formally voted to terminate road maintenance, while the County here did not. Still, both are cases in which a county allegedly ceased maintaining a public road without following the statutory procedures for abandoning it. We highlight the distinctions to clarify the scope of our decision.
We hold that the County has a duty to reasonably maintain Old A1A as long as it is a public road dedicated to the public use. We do not hold that the County has the duty to maintain the road in a particular manner or at a particular level of accessibility. However, the County's discretion is not absolute. The County must provide a reasonable level of maintenance that affords meaningful access, unless or until the County formally abandons the road.¹ The summary judgment was premature because disputed issues of material fact remain regarding the level of road maintenance the County has provided and the level of maintenance it should have provided.
The entry of summary judgment on Count III of the fourth amended complaint was also improper. Count III contained a claim for inverse condemnation based on the diminished access to Summer Haven.
"Inverse condemnation is a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken." Osceola County v. Best Diversified, Inc., 936 So.2d 55, 59â"60 (Fla. 5th DCA 2006).
As the supreme court explained:
There is a right to be compensated through inverse condemnation when governmental action causes a substantial loss of access to one's property even though there is no physical appropriation of the property itself. It is not necessary that there be a complete loss of access to the property. However, the fact that a portion or even all of one's access to an abutting road is destroyed does not constitute a taking unless, when considered in light of the remaining access to the property, it can be said that the property owner's right of access was substantially diminished. The loss of the most convenient access is not compensable where other suitable access continues to exist.
Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989).
In this case, the Appellants argue that the County has so failed in its duty to reasonably maintain and repair Old A1A that it has effectively abandoned it, thereby depriving them of access to their property without compensation. This is a cognizable claim. We conclude that governmental inaction - in the face of an affirmative duty to act - can support a claim for inverse condemnation. Disputed issues of material fact regarding the cause and degree of the diminished access preclude summary judgment. For example, it is undisputed that natural forces have played a role in the degradation of the road and that the County has performed some level of maintenance - however, whether the level of maintenance provided has been reasonable or whether it has been so deficient as to constitute a de facto abandonment of the road remain hotly contested issues. Disputed factual issues such as these should be left to the finder of fact.
In sum, we conclude that a governmental entity has a duty to reasonably maintain its public roads. Material issues of disputed fact remain in this case regarding whether the County has fulfilled that duty or abandoned it. We therefore reverse the summary judgment entered on Counts I and III of the fourth amended complaint. As a result, the summary judgment entered on the corresponding counts, Counts II and V, of the third-party complaint is also reversed, as is the summary judgment entered on the counterclaim. These reversals do not extend to the portions of the aforementioned counts, and judgments thereon, relating the County's duty to provide emergency services or access for emergency vehicles - no issue challenging that aspect of the summary judgments is before this court on appeal. We affirm the summary judgments entered on all of the other counts without further comment. We remand for further proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED.
¹ We are mindful that Count I of the fourth amended complaint can be read as requesting far more expansive relief. We nevertheless conclude the claim is sufficient to survive summary judgment, even if the Plaintiffs ultimately may not be entitled to the full relief requested.
EVANDER, J., and SCHWARTZ, A., Senior Judge, concur.