Takings for Protective Dunes from Flagler to Fire Island

Flagler County, Florida announced that it would institute a condemnation proceeding to take 2,500 square feet of sand to enable the U.S. Army Corps of Engineers to rebuild dunes along 2.6 miles of beachfront in Flagler Beach.  The dunes are expected to prolong the life of the barrier island against rising seas, especially the homes and businesses along A1A.

The condemnation is necessary because the owner refused to grant an easement like 100 other property owners did.

The government argues that the easement changes nothing about property owners’ rights.  It merely grants the Corps access to dump and shape sand into dunes and to periodically maintain them over the next 50 years.

The property owner has considerable concerns that the dunes would block the owner’s view, that only native vegetation would be planted on the dunes and that someone other than the County would take control of the easement sometime in the future, or that construction would be allowed on the dunes.

These arguments sound very similar to those made in the Fire Island dune project.  Recently, the Honorable John J. Leo decided a Fire Island taking, Freudenberger v County of Suffolk (Index No. 60 6055/16, dated 4/5/2021).  The case involved the taking of a permanent easement of 2,558 square feet.  The County found nominal damages of $1,791 after deducting special benefits.  It is expected that Flagler County will also argue that there should be a deduction for the special benefit afforded by the construction of the dunes as did Suffolk County.

But in Freudenberger, Judge Leo found there was no special benefit to her home.  Rather, there was only a general benefit shared by thousands of homes.  This was a critical finding since special benefits are deducted from consequential damages.  General benefits are not.  Lerner Pavlick Realty v State of New York, 98 AD3d 567 (2d Dept 2012).

The Court found that the property suffered severance damages in the sum of $170,000.  Compared to the County’s appraisal of $1,791, you can be sure an additional allowance pursuant to EDPL Section 701 will be made.