You wouldn’t have known it from the initially gladiatorial rhetoric of Assistant Flagler County Attorney Sean Moylan and Cliff Shepard, the attorney representing Ormond Beach in a lawsuit the city filed against the county and a developer in the county’s area of Hunters Ridge last October.
The two attorneys started off an unprecedented meeting of the two government boards Thursday evening at Ormond Beach City Hall with what Shepard would later describe as a round of “chest-beating” in the legal dispute about a county easement over a 1,750-foot portion of dirt road that crosses into Ormond Beach, and to which the county had no right. The language was sharp, accusatory, and legally threatening on both sides. Yet by the end of the meeting, the two sides were lobbing so much gallantry at each other, it was probably wise that an eight-foot gutter divided the two sets of mutually-smitten officials.
The developer of Hunters Ridge, U.S. Capital Alliance also agreed to drop its own claim for compensation for conservation land it conveyed (or will convey) at no cost if the dispute between the two governments is resolved. The Audubon Society weighed in and approved of the resolution.
Moylan and Shepard knew what they were doing. The chest-beating was necessary face-saving ahead of the way they had prepared. The elected officials were only too glad to walk it. Flagler County agreed to certain terms controlling the segment of road known as 40 Grade, and Ormond Beach agreed to dismiss the lawsuit, assuming all the details are officially recorded and properly ratified by the two sides in coming weeks. After some serious recriminations and resentments on both sides dating back to last fall–Ormond Beach had felt its sovereignty violated, Flagler County considered Ormond disingenuous and unlawfully quick on the trigger to sue–it was, in sum, a relatively swift and elegant settlement.
And it made it appear as if, had the Ormond Beach City Commission not been so quick on the draw, the matter could have been settled by the lawyers last fall, exactly the way it was Thursday, since the county back then was prepared to give the city the assurances it needed and got on Thursday.
40 Grade is a 50-wide dirt road that cuts through remote, conservation land–2,000 acres in Flagler County, 200 acres in Ormond Beach. The old logging road is used for timbering and conservation management. It is also an emergency exit for residents of Hunters Ridge. Flagler County got the easement from U.S. Capital Alliance, the developer of Hunters Ridge, in 2017, using it to manage the land there. The road is gated, and opened only during emergencies. The county occasionally shells the road’s potholes and ruts to keep trucks from getting stuck. Ormond Beach in its lawsuit asked Flagler County to remove the shelling (“that borders on absurd,” Moylan said). Many of the Hunters Ridge residents also have their own easements to the road–80-foot wide easements. “No matter what happens in this dispute between the county and the city, those easements are not going anywhere. That dirt road is not going anywhere,” Moylan said.
In 2021 Ormond Beach asked Flagler County permission to drill wells on Flagler’s side of the county line. Flagler agreed. The city would use 40 grade to access the wells. For all that, the city started objecting to the county’s use of the road. There was some discussion back and forth, but that ended before an Ormond Beach City Commission hearing last October that had “many fundamental legal errors,” Moylan said. The city had limited Moylan’s input at that hearing. It purported to give the matter a 60-day period for the dispute to be settled. Instead, the city sued within days of the hearing, and did so through procedures Moylan said violated the state’s Sunshine law, or open meetings law.
“I don’t think litigation is necessary,” Moylan said, showing a “road map” to a resolution on a screen in front of the two governments. “I believe we can get some some some opinions or consensus here today.” It would work this way: the county would deed back the easement to Alliance. Alliance would then convey the 200 acres to Ormond Beach. Once the city owns that land, it can then grant the easement to Flagler County to continue using the road. The county also proposed keeping a 60-foot easement. And it asked to have the authority to continue shelling the road without “permission” from Ormond Beach, but with clear coordination.
Shepard was equally combative at first. “I don’t think it’s going to be particularly productive to rehash the past,” he said. “Just suffice it to say we have significantly divergent views and how we got here, and who the responsible party for that is, but it doesn’t matter because if you listen to the last slide, the most important one, we’re really close to having a solution. So that’s where I want the focus to be.”
Sure. But not before he gave a “short history” full of sallies of his own. “If we don’t get it resolved, which again, I’m very optimistic we will, but the litigation will continue,” Shephard said. “It ain’t gonna get dismissed. It’s going nowhere.” The issue, he said was that Flagler County “illegally exercised sovereignty over our land, in our jurisdiction. That’s a problem based on the Constitution, home rule, state laws, the city comprehensive plan, land development regulations, a whole bunch of stuff.” He then outlined the history of the Hunters Ridge development (what’s known as a development of regional impact, or DRI) and where it faltered, or where county government faltered in implementing it.
But all that done (“all of this is rearview mirror stuff,” he said), Shepard reverted to his own road map to a resolution, which looked like an Ormondized version of Moylan’s, with few differences. “Notwithstanding whatever chest beating you might have thought you heard, we can still solve this problem,” he said. And they did.
County Commissioner Leann Pennington got assurances that the emergency use of the road by local residents would be preserved. Commissioner Donald O’Brien assured Ormond Beach that all matters of sovereignty “resonates with me as as a commissioner on our side.” Ormond Beach commissioners suggested the use of surveillance cameras to cut down on illegal hunters’ use of the road, or other illegal uses of the road. The city was all for granting the 60-foot easement and allowing the shelling–of the road, not of each other–to continue. A lawyer representing Alliance was, once one got past the contorted legalese, similarly agreeable. At Commissioner Andy Dance’s suggestion, the two governments also agreed to split survey costs.
As for the time-frame, the stay Circuit Judge Dennis expires in June. Shephard said the lawyers can get all the necessary documents filed before then. But the two governments will have to ratify them in public meetings, which have to be properly advertised and held, though that can be accomplished through special meetings, which Dance said would be a priority: “Whatever time we have to meet to sign all those documents, I’m free,” he said.
“I’m grateful to the officials on both sides, and I’m grateful for having the partner on the other side to work with,” Shepherd said of Moylan. “I understands that sometimes being able to win the case isn’t necessarily winning for the clients and he and I both get that because I think we both win but it really doesn’t matter because the people win.”
Remarkably, no one from either side chose to celebrate with an exonerating brew at Ormond Garage across the street.
