We are pleased to keep you informed of the latest developments in our Stuart, Florida, office and advise you of important case developments that will affect not only residents of Florida, but our entire nation.

PLF's Atlantic Center is always searching for cases in which we might assist.  While we are not able to honor all the requests we receive, each is reviewed to determine if the subject matter is something PLF has traditionally been involved with in the past.  Often, if we are unable to become involved in the matter, we can provide a referral that may be able to help.  If you know of a matter that you would like PLF to consider, please fill out a case information form available on our website, or contact the Atlantic Center office.

Mike Stetson Director of Development

Alan DeSerio Managing Attorney

Pacific Legal Foundation
1002 SE Monterey Commons Blvd.
Suite 102
Stuart, Florida 34996
(772) 781-7787
www.pacificlegal.org

Koontz v. St. Johns River Water Management District

Paul J. Beard II

Principal Attorney 

Earlier this month, attorneys with Pacific Legal Foundation petitioned the U.S. Supreme Court to hear the takings case of their client, Coy Koontz, Jr., as representative of his father's estate. Before Coy Koontz, Sr., died, he was blocked from developing commercial property that he owned in Orange County, because of confiscatory and unconstitutional demands by the St. Johns River Water Management District.

For years, the late Coy Koontz, Sr., sought to develop some vacant, commercially zoned land that he owned, immediately south of State Road 50 and east of State Road 408, in Orange County.

But the St. Johns River Water Management District refused to issue any of the necessary permits, because Koontz would not agree to costly and unjustified conditions that the District imposed as the price of getting a permit. Specifically, the District demanded that Koontz dedicate his money and labor to make improvements to 50 acres of District-owned property located miles away from the proposed project.

The demand that Mr. Koontz spend his resources improving government-owned property, miles away from his own land, bore no connection to the development project that he proposed. In other words, what we have here is a classic case of an unconstitutional shakedown. The U.S. Supreme Court has ruled that government violates property rights--it commits a "taking" in violation of the Fifth Amendment--if it tries to use the permitting process to extract conditions that aren't related to the impact of the proposed development.

Officially, most of the 3.7 acres that Mr. Koontz sought to develop lay within a habitat protection zone, and was classified as wetlands subject to District jurisdiction. But the property had actually been seriously degraded, and made unfit for animal habitat, because of development on adjacent land owned by others, including government land. Nevertheless, Mr. Koontz offered to mitigate for the proposed disturbance of wetlands by dedicating 11 acres of his own land in the vicinity (nearly 80 percent of his property in the area) to the state for conservation.

But the District was not satisfied with this offer. Instead, it demanded that Mr. Koontz replace culverts and plug ditches on some of the District's own property located up to seven miles away. Cost estimates for the off-site work ranged from $10,000 (the District's estimate) to between $90,000 and $150,000 (Koontz's expert's estimate).

The District never demonstrated how the off-site improvement of 50 acres of wetlands on government lands was related in nature or extent to the alleged impact of Mr. Koontz's proposed development on little more than three acres of his own property.

Mr. Koontz refused the District's unreasonable demand. Because of his refusal to comply, the District denied his permit applications outright.

The Koontz family sued in state court, arguing that their Fifth Amendment rights had been violated, and they won at the trial and appellate levels. After the District issued the necessary permits without the off-site mitigation condition, Mr. Koontz was awarded damages for the period of time during which the District unlawfully withheld permits.

However, the Florida Supreme Court then ruled for the District, refusing to recognize that the District had imposed an unconstitutional taking. Coy Koontz, Sr., died before he could see his property developed, and his son took over his legal battle.

We are now petitioning the U.S. Supreme Court to take the case, because the District unconstitutionally used the permit process for its own gain, not as a means of reasonable regulation of property use.

Nollan v. California Coastal Commission is the landmark 1987 U.S. Supreme Court ruling establishing that governments can't impose unrelated demands as the price of permits or other regulatory actions. The Nollan case was brought to the Supreme Court by Pacific Legal Foundation, and one of PLF's ongoing missions is to force regulators to abide by Nollan's principles.

Town of Long Boat Key v. Armstrong

Alan E. DeSerio

Alan DeSerio and Jim Armstrong

Managing Attorney  

Good fruit is being harvested from the planting of a good idea. The "good idea" was the establishment of a pro bono network of experienced Florida land use attorneys that would serve as counsel to property owners defending against property rights abuses at the trial or administrative level. The Wade Hopping Institute for Private Property Rights at Pacific Legal Foundation (WHI) established the first and only Florida pro bono program offered to assist ordinary citizens in the defense of their property and economic rights: the WHI Pro Bono Attorney Network at PLF's Atlantic Center.

Jim Helinger, Jim Armstrong, and Lori Armstrong

The Network was created none too soon for the Armstrong family of Long Boat Key. PLF received a frantic phone call from James Armstrong, a homeowner residing in the Town of Long Boat Key, explaining that the Town had dragged his family into court demanding that the Armstrongs be forced to open their home to a search by code enforcement staff. In addition, the Town asked that the Armstrong family be prevented from living in their home until the case was resolved. Called upon by PLF to even the playing field, Pro Bono Attorney Network participant Jim Helinger, of James A. Helinger, P.A., met with the Armstrongs and filed a notice of appearance with the court. Helinger wasted no time in pointing out to the Town the shortcomings of their lawsuit, giving them an opportunity to terminate the "ill-advised litigation." The request fell on deaf ears.

A hearing was held at which Helinger argued that the Town's lawsuit was unfounded and should be dismissed. Agreeing that the statutes relied upon by the Town to force entry into the Armstrong residence could not be used by the Town to invade the Armstrong home, the trial judge granted the motion to dismiss the lawsuit. While the Town vowed to re-file the lawsuit, apparently it saw the error of its ways, and instead approached Helinger in an attempt to settle the matter. Negotiating on behalf of the Armstrong family, Helinger resolved the case through a settlement agreement that was approved by the trial judge.

As a member of the WHI Pro Bono Attorney Network, Jim Helinger provided the assistance desperately needed so that a Florida citizen, Jim Armstrong, could defend against the property rights abuse attempted by the Town. The plan and purpose of the WHI Pro Bono Attorney Network came to fruition and property rights were preserved.

Jim Burling Participated in PGA Corridor Association's

Annual Property Rights Debate in Palm Beach Gardens

PLF's Director of Litigation, Jim Burling, participated in a debate at the Gaeta Annual Private Property Rights Luncheon on May 2, 2012, at the Doubletree Hotel Palm Beach Gardens. The subject of the debate was "Land Use Planning: Love It or Hate It? Keep It or Scrap It?" 

 

 

Steve Mathison, Richard Grosso, Robert Parsons, John Little, Jim Burling, Karen Marcus, Joel Channing, Steven Cohen, Ed Chase (photo courtesy of David R. Randell Photographics).

 

Jim debated Richard Grosso, a law professor at Nova Southeastern University, on the 2011 Revision to Florida's Growth Management Act, which became law in June, 2011. The new rules allow cities and counties to make changes to their growth management plans without permission from the state.  The questions posed by attorney John Little, as the debate emcee, were broad in scope, providing Burling and Grosso the opportunity to not only address the subject of the question, but also provide their views on the finer nuances of the topic. 

 

Please visit the PGA Corridor Association's website www.pgacorridor.com for more information and photos of the event. 

 

 

Jim Burling To Speak at Florida Chamber Foundation's Annual Environmental Permitting Summer School Event