Agenda Item Name:
Title
Settlement Agreement in Mercer v Alachua County
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Presenters:
David Forziano, Senior Assistant County Attorney, 374-5218, and Charlie Houder, 264-6804
Description:
Approve Settlement Agreement in Mercer v Alachua County
Recommended Action:
Recommended Action
Approve the proposed Settlement Agreement (attached) in Mercer v Alachua County and authorize the Chair to execute same and all instruments approved by the County Attorney’s Office necessary to implement the Settlement Agreement
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Prior Board Motions:
01/08/2019 - The Board of County Commissioners approved an agreement-in-principle to negotiate a non-public statutory way of necessity easement over a portion of the Barr Hammock Preserver to Dr. Natalie Mercer for access to Alachua County Property Appraiser Parcel No. 16830-000-000.
02/26/2002 - The Board of County Commissioners placed Barr Hammock - Rayonier Tract on the Alachua County Forever Active Acquisition List.
7/11/2006 - Board of County Commissioners approved certain documents to purchase the Alachua County Forever Barr Hammock - Rayonier Tract.
12/12/2006 -The Board of County Commissioners executed a grant contract with Florida Communities Trust to fund acquisition of the Barr Hammock - Rayonier Tract.
06/14/2011 - The Board of County Commissioners adopted resolution to place Barr Hammock Preserve on the Alachua County Registry of Protected Public Places.
10/28/2014 - The Board of County Commissioners approved the most recent Barr Hammock Preserve Management Plan.
Fiscal Consideration:
Fiscal Consideration
Approximately $9,000 for new fencing along the eastern side of the easement route, with a matching contribution of up to $9,000 by Dr. Mercer. Budget exists in 001.41.4160.537.46.00 to cover this expense.
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Background:
Alachua County acquired the Barr Hammock Preserve - Rayonier tract on 09/26/2006 through the Alachua County Forever program. The property was placed on the Alachua County registry of public places in 2011, and opened for public access on June 17, 2017. In August 2018, County staff discovered that an unknown person was accessing the Barr Hammock Preserve via the southern gate located at the terminus of SW 179 Avenue. In response, County staff secured the gate by removing an old lock from the gate. Subsequently, it was discovered that the person that had been accessing the southern gate was Dr. Mercer. It appears that in May 2018, Dr. Mercer purchased Alachua County Property Appraiser parcel 16380-000-000, a privately owned parcel that is bounded on two sides by Barr Hammock Preserve, on its third side by Ledwith Lake and the fourth side by private property. Dr. Mercer claims that her parcel is landlocked (i.e., without legal access to a public or private road) and that the historic access to her parcel occurred over an unpaved, private service road that runs through Barr Hammock Preserve - Rayonier property.
In order to allow the parties’ time to investigate and resolve this matter, the Dr. Mercer entered into a temporary license agreement with Alachua County, through which she is authorized to use an existing service road that crosses a portion of the Barr Hammock Preserve to access her parcel. On June 17, 2019, Dr. Mercer filed a lawsuit (attached) against Alachua County and several property owners in the Micanopy Hammock subdivision. The lawsuit alleged four counts against Alachua County, including: (1) Declaration of a Prescriptive Easement across a portion of the Barr Hammock Preserve; (2) Declaration of a Statutory Way of Necessity Easement across a portion of the Barr Hammock Preserve; (3) Permanent Injunction against Alachua County to enjoin Alachua County from denying Dr. Mercer access across the Barr Hammock Preserve and a request for an award of monetary damages; and (4) Inverse condemnation for allegedly improperly denying Dr. Mercer with access across the Barr Hammock Preserve. Dr. Mercer alleged two counts against the Micanopy Hammock homeowners, which are not the subject of this proposed settlement agreement: (1) Declaration of a Prescriptive Easement across a private road that traverses the Micanopy Hammock Subdivision and connects SE 175th Avenue, a public road, to the south gate of the Barr Hammock Preserve; and (2) Declaration of a Statutory Way of Necessity across a private road that traverses the Micanopy Hammock Subdivision and connects SE 175th Avenue, a public road, to the south gate of the Barr Hammock Preserve.
A prescriptive easement is similar to a claim of adverse possession, which requires, among other things, actual, continuous and uninterrupted use of the service road for a period of at least 20 years by Dr. Mercer and/or her predecessors in a manner that was adverse to the owner of the service road. In contrast, a Statutory Way of Necessity is not dependent on whether Dr. Mercer or her predecessors previously used the service road. The sole factors to determine whether Dr. Mercer is entitled to a Statutory Way of Necessity pursuant to §704.01(2), Florida Statutes are: (1) her property is landlocked by property belonging to others; (2) there is not a practical route of ingress or egress to the nearest public or private road; (3) there is no common law way of necessity under §704.01(1) because there was no unity of title between the landlocked property and its adjoining properties that have access to a public or private road; (4) the landlocked property is being used or the owner desires to use the property as a dwelling or for agricultural, timber raising or cutting, or stockraising purposes; and (5) the statutory way of necessity sought is the “nearest practical route” to a public or private road. In response to the lawsuit, the County Attorney’s Office file an answer, twenty-eight defenses and a counterclaim against Dr. Mercer (attached).
Without admitting any liability, and for the purposes of avoiding protracted litigation that would likely consume a considerable amount of staffs’ time and County resources, we are proposing to settle this litigation. To that end, the County Attorney’s Office, County staff and Dr. Mercer have negotiated the proposed Settlement Agreement for the Board’s consideration. Generally, the Settlement Agreement would create the following obligations:
• Dr. Mercer would release and discharge all claims against the County and would dismiss, with prejudice, its lawsuit against the County;
• The County would release and discharge all claims against Dr. Mercer and dismiss, with prejudice, its counterclaim against Dr. Mercer;
• The County would grant Dr. Mercer with an approximately 20 foot wide Non-Public, Non-Exclusive, Statutory Way of Necessity Easement across a portion of the Barr Hammock Preserve (the “Access Easement”);
• The County would perform a survey, to be paid for by Dr. Mercer, to establish the boundary of the Access Easement;
• Dr. Mercer would furnish liability insurance coverage in the amount of $1,000,000 per occurrence, which would name the County as a Certificate Holder and as an Additional Named Insured, during the entire term of the Access Easement;
• Dr. Mercer would split the cost of maintaining the Access Road with the County;
• The County would install a fence along the eastern boundary of the Access Easement, with Dr. Mercer paying up to $9,000 towards the cost of the fence;
• Dr. Mercer may install her own electric powered gate at the southern entrance to the Barr Hammock Preserve and at the entrance to her property;
• The County would grant a revision to Clay Electric’s existing utility easement to allow underground installation of electric lines to power Dr. Mercer’s gates; and
• The County has the option of relocating the Access Easement, at the County’s expense.