Non-jury trial in case set for July 2027
In response to a request by the Sarasota attorney representing Laurel Meadows residents and business owners who suffered significant flood damage as a result of Tropical Storm Debby’s inundation in early August 2024, a 12th Judicial Circuit Court judge agreed to allow the filing of an amended complaint that includes an allegation of county negligence.
The attorney did so on Sept. 11, seven days after Circuit Judge Dana Moss issued her decision.
In the meantime, a non-jury trial in the case has been scheduled for July 2027, The Sarasota News Leader has learned.
In the amended complaint, Steven D. Hutton, of the Hutton & Stall firm in Sarasota, cited numerous policies in the county’s Comprehensive Plan, which guides growth in the community, as well as County Commission and staff actions to assert that the county is responsible for the Laurel Meadows flooding because of “operational level negligence.”
Early on in the brief, he wrote, “This action seeks a judicial determination of liability for a temporary total taking of Plaintiffs’ residential properties, and a permanent total taking of their personal properties, as well as damages, due to extensive and prolonged flooding of those residential properties, as a direct result of Defendant’s failure to fulfill its legal responsibility to monitor, maintain, and repair a certain stormwater system owned by Sarasota County; and for a Court award of full compensation to Plaintiffs, to be paid by Defendant, to redress all related injuries and expenses to Plaintiffs’ Subject Properties, together with attorneys’ fees, costs and interest incurred by Plaintiffs, allowable by law.”
As the Legal Information Institute of the Cornell Law School explains, “A taking occurs when the government seizes private property for public use. It may be a physical taking, where the government occupies or acquires the property, or a regulatory taking, where government restrictions limit property use so severely that it becomes the equivalent of a physical seizure.
“Under the Fifth Amendment of the United States Constitution,” the Institute continues, “the government must provide just compensation when it takes private property. In Kohl v. United States, 91 U.S. 367 (1875), the Supreme Court confirmed the government’s power to take property through eminent domain, so long as just compensation is paid. This compensation is typically based on the fair market value of the property, excluding personal or sentimental value. Valuation can be complex, particularly when the property is unique, leased, or has limited comparable sales.”
Moreover, in a count alleging inverse condemnation, he wrote, “The actions and inactions of the County in failing to monitor, maintain, and repair [a] pre-existing breach in [a county dike], south of Delft Road, directly caused the interior flooding within Plaintiffs’ homes, immediately after Tropical Storm Debby.”
“Thus,” Hutton continued, “the County has, de facto, temporarily taken all or substantially all beneficial or productive use of Plaintiffs’ Properties, and permanently taken personal property lost by flooding, all without due process and without payment of full compensation therefore, in violation of Article I, Sections 2 and 9 and Article X, Section 6(a), [of the] Florida Constitution, as well as in violation of the Fifth Amendment and the 14th Amendment of the United States Constitution.”
He then asked the judge to “[s]et a date for a jury trial to assess the amount of full compensation due Plaintiffs,” in accord with Section 73.071 of the Florida Statutes.
The August ruling and Hutton’s response
As The Sarasota News Leader has reported, Moss initially had agreed with Deputy County Attorney David Pearce’s assertion that the county could not be found guilty of negligence for failure to find a breach in the dike along Cow Pen Slough, which a Sarasota stormwater consultant linked to the flooding in Laurel Meadows as Tropical Storm Debby dropped as much as 18 inches of rain on parts of the county over 36 hours.
In her Aug. 12 ruling, which mostly sided with the county’s argument in responding to the lawsuit, Moss wrote the state “affords [local governments] immunity for damages caused by the partial or total failure of stormwater management systems and appurtenant works.” She referenced the argument that Pearce had made in the county’s motion to dismiss the Laurel Meadows complaint.
However, attorney Hutton contended in his Aug. 18 response to her ruling that Moss made “a clear legal error” in that finding for the county. Yet, she had granted that part of Pearce’s motion “with prejudice,” meaning that Hutton could not file an amended version of the complaint with a different approach to the negligence issue.
In his Aug. 18 filing, Hutton referenced the 2005 Florida Supreme Court ruling in Boca Burger, Inc. v. Forum. The court explained — with emphasis from Hutton — “In Boca Burger, the Florida Supreme Court explained that ‘[u]nder the plain language of the first sentence of [Florida rule of Civil Procedure] 1.190(a), a plaintiff has an absolute right to amend the complaint before a responsive pleading is served.’ … Additionally, ‘a motion to dismiss is not a “responsive pleading” because it is not a “pleading under the rules.” ‘ … Consequently, ‘where a defendant has filed only a motion to dismiss following the filing of a complaint, “[t]he trial court [does] not have discretion to dismiss the action with prejudice.” ’ … This is true even if the amendment of the complaint would be futile,” the Fourth District Court of Appeal added — with Hutton’s emphasis — citing two Florida Courts of Appeal judicial precedents.
In her Sept. 4 order, Moss did point out, “[A]ll other provisions of the [Aug. 12] Order remain in full force and effect.”
The community and the dike
In the amended complaint, Hutton described the Laurel Meadows subdivision as having won Sarasota County approval in November 2000, after it was platted. The development comprises “approximately 48.6 acres,” he added.
Further, he pointed out, with emphasis, “The Base Flood Elevation of the unfilled land within Laurel Meadows subdivision is 24.8 feet, NAVD 88; and in March of 2024, was designated by the Federal Emergency Management Agency (‘FEMA), as Flood Zone ‘AE,’ within the 100-year flood area (1% annual chance of flood, with an average depth of less than one foot).”
Hutton further wrote, with more emphasis, “The Plaintiffs’ homes constructed on fill in Laurel Meadows, however, have minimum Finished Floor Elevations (‘FFE’) of between 26.2 and 26.9 FFE, NAVD 88; or approximately one and one-half to two feet, at minimum, above the ‘AE’ Base Flood Elevation within Laurel Meadows. Plaintiffs’ homes, and portions of their filled lots therefore, are not within Flood Zone AE.”
Then he explained, “Due to the historic artificial drainage patterns, west of Cow Pen Slough, within the, now dissolved ‘Sarasota-Fruitville Drainage District,’ an earthen dike (the ‘Sarasota-Fruitville Drainage District Dike’) … adjacent to the west side of Cow Pen Slough, was constructed in approximately the late 1920’s or early 1930’s. The purpose of the Dike was to prevent the higher water levels within the Cow Pen Slough Basin to the east from entering the Sarasota-Fruitville Drainage District property and the Phillippi Creek Basin to the west. Said Dike provided for maintaining the integrity of drainage conveyance within the Phillippi Creek Basin, as intended by the Sarasota-Fruitville Drainage District, assuring a ridge divide between the Phillippi Creek Drainage Basin and the Cow Pen Slough Drainage Basin. [It] temporarily detained the stormwater runoff from the Cow Pen Slough Basin, by temporarily collecting, then conveying that runoff to the south of the Phillippi Creek Basin.”
County staff were aware of the dike, Hutton pointed out, before the county’s Stormwater Environmental Utility was established in 1989.
Hutton added, “The general location of that Dike, the ‘Sarasota-Fruitville Drainage District Dike,’ adjacent to the Cow Pen Slough canal, is depicted on the Map found in the 1961 Report, ‘Work Plan for Sarasota West Coast Watershed,’ prepared by the Soil Conservation Districts of Sarasota and Manatee Counties … as a pre-existing condition.”
He included the map as an exhibit attached to the amended complaint.
‘The County must adhere to its own Comprehensive Plan’
Then Hutton explained, “In Florida,” as provided for in Florida Statue 163.3194, “a local government’s Comprehensive Plan is the guiding document controlling land development policies of that jurisdiction, consistent with the public health, welfare, and safety. … The County must adhere to its own Comprehensive Plan.”
In the current version of the Sarasota County Comprehensive Plan, he continued, with further emphasis, chapters in Element 6 include policies related to “Public Utilities,” which were crafted “ ‘to provide for the identification and correction of deficiencies, [and] the management and protection of existing facilities…’ ” He referenced Section 6:2 of that portion of the Comprehensive Plan.
Then Hutton noted that Chapter 12 of that element, which focuses on watershed management, says that the “Core Principles” include the following, once more with his emphasis: “Build, maintain and improve facilities in a financially responsible manner;” and “reduce flooding [and] provide continuous service.”
Another section of Chapter 12 of the Comprehensive Plan, which regards surface water and flood protections, calls for “objectives and policies that provide direction for the development, operation, and maintenance of the stormwater management facilities,” he pointed out, with further emphasis. Those include “Maintain existing stormwater management systems,” he wrote.
The county Stormwater Environmental Utility “was established by the County,” Hutton added, to “focus on efforts to provide control of water quantity, enhance water quality, and effectively manage flooding.” Again, the emphasis is Hutton’s, in reference to Element 6:7.
Hutton proceeded to provide more examples of policies in Element 6.
A resolution, an ordinance and ownership of the relevant dike
Further, Hutton wrote in the amended complaint that Resolution 2022-157, which the County Commission adopted on July 13, 2022 as the “Amended and Restated Initial Stormwater Assessment Resolution,” is consistent with the Comprehensive Plan. It says, “The County has the general responsibility and authority to plan, construct, operate and maintain the Stormwater Conveyance System.”
Additionally, he pointed out, a 2022 ordinance that the commissioners approved states, “ ‘Stormwater Management Service’ means, in part, (A) ‘management and administration of the County’s Stormwater Environmental Utility’ and (E) ‘operating and maintaining the County’s capital facilities for stormwater management, including extraordinary maintenance, renewals, and repairs.’ ”
Further, Hutton wrote, “Section 110-293(5) declares that: ‘The County is responsible for the County’s stormwater management system which has been developed for the purposes of collection, storage, treatment, and conveyance of stormwater.’ ”
He added more sections of that ordinance before pointing to the county’s ownership of the Cow Pen Slough dike: “Sarasota County has assumed ownership and control of all prior conveyance, collection, retention and detention facilities constructed and/or maintained by the, now dissolved, Sarasota-Fruitville Drainage District. The Dike is now within the County-owned ‘Rothenbach Park,’ ” which is located on the eastern portion of Bee Ridge Road in Sarasota (8650 Bee Ridge Road), near the county’s Bee Ridge Water Reclamation Facility.
The breach
Next, Hutton explained, “Several decades prior to 2025, Sarasota County maintenance Staff, seeking to mow County Solid Waste Department property on the east side of Cow Pen Slough in Section 3, Township 37 South, Range 19 East, repeatedly drove mowing equipment over and through the Dike. …
“These actions … created a depression, or ‘low spot’ in the Dike. That low spot constituted a breach in the retention wall of the Dike.”
Hutton added, “Having accepted ownership control of all pre-existing stormwater facilities within the County, the County’s Stormwater Environmental Utility had monitoring, maintenance, and repair responsibility for all such facilities, including those improvements functioning as collection, conveyance, and retention facilities. “LIDAR imaging completed in 2019, he continued, “provides further evidence of the pre-existing breach in said Dike.
“Sarasota County knew, or should have known, that the breach area of the Dike … was located on County-owned property and was not being monitored, maintained or repaired, even though the portion of said Dike to the north was fully monitored and maintained by the County,” he contended.
He attached as an exhibit a map showing county “maintenance points.”
Moreover, Hutton wrote, “As evidence of the County’s acceptance of responsibility for the proper functioning of the collection, conveyance, and retention purposes, of the Dike, subsequent to the above-referenced flooding of Laurel Meadows by Tropical Storm Debby, the County [Stormwater Environmental Utility] Staff, or its agents, repaired the breach in that Dike.”
He also pointed out, “Although major storm events have, at times, flooded the streets in Laurel Meadows, the homes within that subdivision had never suffered interior flood intrusion as a result of those major storm events, prior to August 4, 2024.”
Data collected by Sarasota County, Manatee County and the U.S. Geological Service, Hutton continued, showed that Tropical Storm Debby produced rainfall over a 72-hour period that ranged from 10.31 inches to 16.98 inches, “for an average rainfall of 13.17 inches in the Phillippi Creek Basin area …”
He added, “By August 5, 2024, most, if not all, of the homes within the Laurel Meadows subdivision experienced interior flooding — for the first time since the development of the subdivision. Video taken on August 7, 2024, documented a significant amount of stormwater flowing from south to north over Delft Road toward Laurel Meadows.”
“… [B]y by August 7, 2024, with water levels in Laurel Meadows of up to 27.7 feet, the water intrusion inside Plaintiffs’ homes reached between 12 and 24 inches, and remained therein, for varying durations, for several days thereafter, thereby rendering Plaintiffs’ homes uninhabitable without substantial and costly remediation,” Hutton contended.
County Stormwater Environmental Utility staff located the “pre-existing breach in the County’s Dike, South of Delft Road, adjacent to Cow Pen Slough … on a field inspection on or about August 29, 2024 (after Tropical Storm Debby had passed),” Hutton wrote.
“Engineering modeling analysis has confirmed that without the pre-existing breach of the Dike, there would have been no flooding of the interior of the Plaintiffs’ homes in Laurel Meadows due to Tropical Storm Debby.”