In a two-year-old case that centers on three dump truck loads of fill dirt, and the effect it has had on stormwater flows in one Apalachicola neighborhood, city commissioners Tuesday night voted to uphold the decision by former city administrator Lee Mathes to order the dirt be removed.
With Anita Grove absent due to a business trip, and Mitchell Bartley having recused himself from the matter and seated in the audience, three commissioners voted in favor of upholding the decision made a year ago by Mathes, the city’s floodplain administrator, to order that 2.5 of the three truckloads of fill dirt be removed from 51 Eighth Street.
In addition, Mayor Van Johnson asked City Manager Ron Nalley to place the item on an upcoming agenda to see what steps could be taken to discuss a remedy with property owner Christiana Moore and her attorneys.
The commission’s decision came after a lengthy special meeting in which Moore’s Tallahassee attorney Stephen Moore appealed Mathes’ decision. The appeals hearing had been ordered by Circuit Judge Charles Dodson as part of a case being litigated against Moore by the city commission.
With City Attorney Pat Floyd serving as a representative of the city staff, Carrabelle City Attorney Dan Hartman was called in to conduct the hearing.
Turner opened his remarks with a two-pronged approach, describing the matter as a “poor situation “ that could be easily resolved as well as expressing “serious concerns” with the issues of due process, and equal protection under the law, for his client.
“We hope you will make a decision so we don’t have more litigation,” he said. “This matter could end today for the wellbeing of everyone; there’s not a problem here. I hope we can address it and be done with it,” he said.
Moore also objected to the fact that the meeting was not being conducted as a quasi-judicial hearing, with sworn testimony and a court reporter present, and said Floyd was “terribly conflicted” by virtue of the fact that he is an ex-brother-in-law of Bartley, who had earlier recused himself.
Moore’s argument was that dating back to 2017, when Moore and her husband John Jackson, completed the construction of their 1,972 square foot home, and spent about $7,500 on landscaping, they had received all the necessary approvals from the city, and the city’s planning and zoning board, to move forward with the project.
By the end of the year though, the city had mandated an indemnity agreement with the city, as well as a topographical survey, following a neighbor’s complaints. In addition, Moore contended, the city refused to accept the findings of its engineer Clay Smallwood regarding the elevation.
The issuance of a stop work order in Jan. 2018, and the initiation of a court case, has left the project in limbo since then, with the city commission being asked to accept or reject Mathes’ April 2018 decision.
“There’s no showing of any violation,” said Turner. “(Mr. Floyd) has invented an indemnity agreement, everything to change the results (of a study of the property).
“You allowed a house to be built. You don’t build a house and then don’t landscape. That’s what we’re talking about, landscaping,” he said.
Turner said his clients were never asked to obtain a flood plain, which is required of properties in certain areas of the city when it is determined a change in elevation will impact storm runoff on neighboring properties.
“What is required is a location of a proposed activity, and a description of an intended purpose, consistent with your allowing a house to be built on a lot,” he said. “We don’t need any specific permit; we have no violation here of any permit requirements.”
Turner said that after at least two city approvals, Moore moved ahead with having Jason White Construction deliver three yards, at 18 yards per load, for landscaping purposes. He said no stormwater permit was required.
“You should have allowed this work just like the engineer suggested,” Turner said.
He said the city’s elevation estimates “extrapolated ridiculously” and that Mathes failed to take into consideration the amount of dirt needed after the initial site clearance had removed seven trees and a substantial amount of sod, grass and ditch debris.
He said a careful study would show that there is very little difference in the new elevation “and most of it is lower.”
He said removing the fill dirt would leave “a huge hole, not even feasible.
“It’s not a plot or conspiracy to elevate the land and flood our neighbor’s property,” Turner said. “They (the city) gave the approval knowing what we were going to do.
“Common sense tells me if you build a house you have to landscape. This is a nice house, it will improve the neighborhood if it is landscaped,” he said.
“When you get with a mindset to find something wrong and step on people’s toes, it’s just picking people out individually to give them a hard time,” said Turner.
He asked that the notice of violation and the stop work order both be rescinded, and the city’s lawsuit dismissed.
“This not going to be a routine lawsuit,” Turner said, although he did not detail specifics of what his client planned to argue to Dodson.
He asked that Moore be allowed finish the landscape work, and then complete a topographic survey.
“To see if there’s any significant alteration, and then if there’s a problem we could address it,” he said. “We’ve never been given a chance to do that.
“I’m offering for you to come up with a pragmatic solution, to allow us to submit a final topographic survey,” Turner said.
Both the mayor and Commissioner Brenda Ash pressed Turner as to where his client spelled out to the city the volume of fill dirt that would be placed on the site.
In his counter argument, Floyd argued that the city is merely applying its flood plain standards to the situation.
“We know that you have tried to be the best they can and that’s what the problem is,” he said. “There was fill placed, three truckloads full, 54 yards of fill dirt and that is what was taken into consideration by flood plain administrator.
“This is not the Floyd plain ordinance, this is the flood plain ordinance,” Floyd said. “When the rain comes across peoples’ yards, it does not discriminate.”
Floyd said neighbors, like Louis Van Vleet, are affected by such runoff, and he noted that Rich Hall, in an unrelated case also about flood plain ordinance rules, “has been very vocal in making sure this is enforced across the board
“The question is was the flood plain administrator’s order supported by the record?” he said. “It was not only supported, it was established by the record.”
Commissioner Jimmy Elliott said he knows the location of Moore’s home well, where water runs down the alleys at Avenues E and C and meets at Avenue D.
“I know because I’ve been waist deep in water,” he said. “But putting three dump loads of dirt is not going to make it lower, I know that.”