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Judge Bars County From Clearing Ditch On Private Property

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By TODD LESKANIC

The Tampa Tribune

Published: August 2, 2008

NEW PORT RICHEY - The idea that the needs of the many outweigh the needs of the few ran into a roadblock Friday: individual property rights.

After two days and more than 10 hours of testimony and argument, Circuit Judge Stanley Mills refused to allow Pasco County workers onto the property of Virginia and Harlan Farmer.

County officials contend a blockage in a ditch on the Farmers' property caused recent flooding in neighborhoods to the south. Last month, Assistant County Attorney Nicki Spirtos filed a motion asking a judge to order the Farmers to clear the blockage themselves or to let the county do it.

But Friday, Mills ruled that the county had failed to meet the steep legal criteria required for the issuance of a mandatory injunction, or a ruling forcing someone to take some action.

The Farmers allowed the ditch to be built on their property in 1958 with the understanding it was for mosquito control. The couple owns 1.77 acres at the corner of Springer Drive and U.S. 19.

Over the years, the waterway became part of a maze of other ditches and culverts that drains stormwater into the Gulf of Mexico. In denying the motion, Mills said the county had no business using the property for drainage when the Farmers had only allowed the ditch to be built for mosquito control.

"The county in the distant past usurped permission given to the Mosquito Control District," Mills said, citing the 1958 ditch permit. The permit "doesn't say for the county to bring in and use as part of their flood control or drainage system. Nevertheless, the county moves in and begins to take over that permission that wasn't given to them in the first place and turns it into part of the county drainage system."

The Farmers fought the injunction, arguing that increased water flow through their property caused by the county's installation of three culverts has caused massive erosion and has increased the size of the ditch. Unblocking the ditch wouldn't cure the flooding problems to the south and would only exacerbate the erosion, they said.

The Farmers say the erosion has made it impossible for them to sell the property to developers. The parcel was once on the market for more than $1.35 million.

In December, the couple filed a lawsuit against the county, asking that it either purchase their property or move the ditch. That suit, known as an inverse condemnation lawsuit, is pending.

Spirtos filed for the injunction two weeks ago after heavy rains caused flooding in the Suncoast Gateway Mobile Home Park and surrounding areas. Friday, she argued for the injunction by, among other things, citing laws that prohibit downstream property owners from blocking water's natural flow. That flow, she said, goes right through the Farmers' property.

Spirtos and County Commissioner Michael Cox, who represents the area, went home disappointed. Cox attended Friday's hearing along with several residents who live in the affected area. After the hearing, he said that had it been granted, the injunction would have only been a temporary solution to the flooding problem.

"What we need to do is look for a permanent solution," he said. "Standing here today, I don't know what the solution is but I'm sure it involves Magnolia Valley."

Magnolia Valley is a nearby golf course that pumps its excess water through the ditch system that runs through the Farmers' property. Jim Helinger, the Farmers' Clearwater-based attorney, blames the flooding on the golf course and on the county's failure to adequately plan for development.

"The people in charge at the county ought to be hung," Helinger said in court. "This flooding goes back years and the county has not done one thing about it."

Reporter Todd Leskanic can be reached at (727) 815-1084 or tleskanic@tampatrib.com.

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