Longboat Key church disputes neighbor's claim that bioswale causes flooding issues.
| 9:15 a.m. August 6, 2020
Ross Toussaint insists he wants to be a good neighbor.
“I’ve been on the island 23 years,” Toussaint said. “I don’t have any enemies, and I don’t want any enemies.”
Toussaint, who lives alongside Christ Church of Longboat Key on General Harris Street, has been in a legal dispute with the church for the last 10 years over drainage which he claims is damaging his property. It’s a dispute that he says has cost him thousands of dollars with no resolution in sight, though the Southwest Florida Water Management District is looking into how a so-called bioswale drainage feature between the two properties was built and how well it operates.
The church, through its chairman, John Shehorn, has declined to comment on Toussaint’s legal claims against it and the church’s countersuit. In court documents, the church denies causing drainage problems and insists any issue existed before the dispute arose.
Toussaint said his neighbors have questioned him about the water.
“Once in awhile, I'll be out by my mailbox and they'll see me [and] stop to say hi. And, the water is just piled up and they'll say, ‘what’s with the water?’” Toussaint said. “I've had more than one person come by and say that.”
Toussaint, who runs Key Signs on the island, said the problems began shortly after the church received a permit to build an office building on adjacent property Toussaint said had been used to accommodate stormwater runoff. As part of the project, a swale was built to channel runoff between the church property and Toussaint’s home. Toussaint said the drainage feature isn’t maintained to water-management district standards and frequently sends water on to his property.
“Unfortunately, the small swale provided insufficient drainage to accommodate the runoff from the large Christ Church property,” Toussaint said in a video documenting his problems with the swale.
Unable to come to a resolution in the dispute with Christ Church, Toussaint explored his legal options, ultimately filing a lawsuit against the church for relief in October 2015.
In his suit, Toussaint sought an injunction on further swale construction, unspecified damages, relief and court costs. Following his filing, court records show the church filed a counterclaim in May 2016, which Toussaint claims has cost him more than $130,000 defending.
In the counterclaim, the church said Tosssaint’s “Damages, if any, are the result of a pre-existing condition on [his] property, completely unrelated to [the church’s] property.” The counterclaim states Toussaint’s “water drainage issues existed long before the construction of” Christ Church.
Before Toussaint’s original claim could be heard, though, the lawsuit was dismissed with no resolution and no relief.
In April 2018, Circuit Judge Gilbert A. Smith Jr. ruled Toussaint improperly submitted evidence while representing himself to save money on attorney’s fees. With his case stalled, in May 2018, Christ Church filing a motion for payment of attorney’s fees and costs. Court records show an invoice totaling $8,164.22.
Toussaint sought relief from that motion in April 2019, though no action has been taken on that front, either. The global pandemic has slowed legal proceedings for most of this year, with no court date yet scheduled for Toussaint’s motion.
Toussaint said he and the church negotiated for the sale of his property, but no firm offer was ever submitted. Toussaint declined to share specifics of those negotiations.
Town officials said SWFWMD has responsibility for permit approval of such drainage structures. Toussaint has filed SWFWMD complaints against the church’s water management system several times and in May, SWFWMD sent the church a “notice of permit condition violations.”
“Based upon staff’s site inspection, the western on-line mention system was dry and appears to be functioning; however, the bio-swale (east) retention area was full of water, indicating the system is not functioning as designed,” SWFWMD senior engineer Daniel Golus wrote, adding the property had “inadequate conveyance of off-site run off.”
“The pre-development conditions of the church site included substantial low ponding areas (historic basin storage) which used to receive and store runoff from the church site as well as runoff from the adjacent off-site property owned by Mr. Ross Toussaint,” Golus wrote.
The church submitted a response on June 2. On June 16, SWFWMD requested additional information with a deadline of mid-September.
“Failure to provide this information within 90 days will delay the processing of the permit application/ petition, and may result in the permit application/petition being denied,” SWFWMD public information officer Susanna Martinez Tarokh wrote. “If the additional information cannot be provided within that time period, you may make a written request for a time extension, provided that an acceptable justification for the time extension accompanies the request.”
Tarokh wrote that if Christ Church does not resolve the permit condition violation “in a timely manner” the case could be referred to SWFWMD’s general counsel for enforcement.
For now, Toussaint is waiting to see what SWFWMD decides.
“I wouldn’t want this to happen to anybody, but it happened to me,” Toussaint said. “I feel like if I don’t speak up, it could happen to others too. Something has to be done about it.”
Christ Church has hired Parrish-based Claybrooke Engineering Associates, Inc. to try to resolve the matter, court documents show.
Christ Church has a Sept. 14 deadline to respond to SWFWMD’s latest request.
“I don’t want to come across as a villain because this has been a very painful process for me,” Toussaint said. “It really has, and it’s cost me my life savings. And, I just don’t get it. I don’t understand it. I just don’t.”