Lawsuits over developer’s Lake Monroe excavations to end; settlement gets compliance for Monroe County, $50K for developer

On Wednesday afternoon, at a joint session of Monroe County’s board of commissioners and the county plan commission, both bodies voted separately to agree to a settlement of a lawsuit against William and Nicole Huff and the Huffs’ counterclaim against the county.

The county’s lawsuit was filed in May of 2019.

The Huffs will get a payment of $50,000 to settle their defamation and due process claims against the county. That cost will be split evenly by the county and the county’s insurance provider, OneBeacon Insurance Group.

The county will get quick access to the site on Lake Monroe, where the Huffs have been excavating and removing trees for a couple of years, to check the current status of erosion control on the property related to their development activity. The assessment will be done by an engineer of the Huffs’ choosing and the county’s municipal separate storm sewer system (MS4) coordinator.

If problems are found related to erosion, a remedy will be implemented by the Huffs. If no problems are found, that’s the end of the story, at least as it relates to events of the past. For future permitting related to development at the site, the Huffs are supposed to be treated like any other petitioner, according to county attorney David Schilling.

According to the settlement agreement, once any erosion problems are identified, and remedied if they’re found, the county is required to issue a press release that states: “The County has reached an agreement with the Huffs to resolve the lawsuit. The County has determined that the site is in compliance with all County erosion control requirements and does not pose a threat to the Monroe County water supply.”

The vote on the three-member board of commissioners to accept the settlement was 3–0. On the plan commission the tally was 7–1, with dissent from Trohn Enright-Randolph, who serves as county surveyor, which is a countywide elected position.

The 13 points of the settlement emerged after a 10-hour mediation session on Monday, led by former federal magistrate judge William G. Hussmann Jr.

On Tuesday, the board of commissioners and the plan commission met jointly for about an hour to discuss the proposed settlement. At the Tuesday joint meeting, Schilling told commissioners that the two sides opted for mediation after they’d each drafted a proposed settlement agreement. About the two proposals, Schilling said: “Neither effort inspired the other party.”

The two public bodies decided to continue their meeting from Tuesday to Wednesday afternoon in order to have more time to consider the proposed settlement. Schilling was keen to get a decision on the proposal on Tuesday or Wednesday, because a scheduling conference with the court was set for Thursday. Five days had been set aside by the court for a jury trial starting a little less than a year from now, on Sept. 13, 2021.

The back-and-forth between the two sides is reflected in 168 entries in the online summary of activity.

County commissioners and plan commissioners alike were persuaded by the idea that the most important consideration is to ensure as quickly as possible that the property is in compliance with erosion controls, to protect Lake Monroe as a drinking water source.

That consideration outweighed the importance of defending the county’s ordinances.

Public comment made by resident Clint Bobzien on Tuesday was squarely in favor of defending the county’s ordinances, on pain of setting a bad precedent for developers.

Bobzien said, “[The Huffs] continue to work out there daily on that property for one reason: They know they can get away with it. And as county officials, your job is to oversee and enforce the safe and sustainable growth of our community. And with that in mind, the decision to settle—because it will save a little time and money right now—is incredibly short-sighted and dangerously flawed.”

Public comment on Tuesday was also on the side of continuing to litigate, because of the precedent that would be set for developers.

Michael Cain said, “It’s one thing for the county to enforce rules, and prevent some guy from putting a shed in the wrong place. But the real test is enforcing the rules against a committed and deep-pocketed opponent. I think it’s unjust for the county to force my neighbors out here on the lake to obey the rules while letting the wealthy developers slide, just because they hire an army of lawyers.”

On Tuesday, president of the county plan commission Margaret Clements, who participated in the 10-hour mediation session on Monday, said, “The goal yesterday was to get the Huffs into compliance, so that we could proceed normally, like our normal operations require and the code requires. And to that extent, I think this agreement moves us toward that direction.”

Schilling characterized the settlement as getting the same result as could have been extracted after protracted litigation, if it had gone in the county’s favor: “Our feeling in the legal department is that that this agreement will give us about the same result, as if we engaged in protracted litigation for a couple years.”

Schilling added, “And an additional benefit of this… is that it would allow the county to get on the property quicker. … Any erosion issues that are determined…would be addressed much sooner than if we continue to litigate.”

At Tuesday’s meeting, plan commissioner and county surveyor Trohn Enright-Randolph, who was the sole dissenter, questioned the statement that would be required in the press release. He wanted to strike the phrase that says “and does not pose a threat to Monroe County watershed supply.”

Enright-Randolph added, “I feel like that is kind of opening a can of worms. And the fact that we weren’t there at the beginning, kind of gives them a…get-out-of-jail-free card.”

On Tuesday, plan commissioner Dave Warren echoed the concern about statements describing the absence of a threat to the water supply, “It’s hard to make that claim. I don’t know if we have any flexibility to strike that. I guess my concern is, while a handful of property owners here and there probably are not going to pose a threat to the water supply, if you have a bunch of property owners doing this, then the cumulative effect is such that it certainly could.”

There was no flexibility to amend the settlement agreement, Schilling said.

Schilling also said that the statement about threats to the water supply “was crafted after a lot of discussion so that the county did not admit that there was never a problem.” Schilling added, “This basically says we’re looking forward, and we’re going to make sure that the properties fit.”

No one who voted for the settlement seemed enthusiastic about supporting it.

County commissioner Lee Jones said, “I hate the possibility of people interpreting this to mean that you can pretty much do what you like with your property as long as you can pay for it, and possibly even collect money for it. Ultimately, this whole experience has made me feel bullied. But in spite of that, I do think it’s extremely important that we get on to the property as quickly as we possibly can to take care of any erosion that might be occurring.”

County commissioner Penny Githens said, “I think also that part of our primary purpose here is to protect the drinking water for our area, and to protect Lake Monroe. And I think the fastest way to do that is to sign this mediated agreement.” She added, “I’m not happy with components of it, either.”

Part of what made it difficult for the county to regulate the Huffs’ activity is the distinction between urban area and non-urban area. Urban area is defined is at least eight homes per quarter square mile.

According to Schilling, urban area is treated differently under state statute than non-urban areas, with respect to the “alienation of mineral resources and forestry.” In an urban area, the county can regulate those activities, Schilling said. “In a non-urban area, we are not allowed to take any action that prohibits the complete alienation of mineral or forestry resources,” Schilling added.

In her remarks, president of the board of commissioners, Julie Thomas, alluded to the lack of control over non-urban areas: “A good part of that property in question is not anything that we can control in terms of logging, and it stinks. And it’s awful. And it’s not fair to county residents. It’s not fair to anybody who relies on Lake Monroe for drinking water. And it’s certainly not fair to the neighbors. But it’s something that we can’t control.”

Thomas added, “So if you all are as upset about it as I am, I hope you contact your state representatives and senators, and let them know that you hate, hate, hate this current provision because of what it allows to happen.”