Water Management District rebuffed in appeals court
"All landowners of whatever size owe Judge Pleus their gratitude
for exposing an abuse of the system under which citizens have long
January 5, 2004
By Ed Clark
for Brevard Insider
Malabar, Florida - Coy Koontz sued the St. Johns River Water Management
District (SJRWMD) for restricting his land without providing compensation,
called an Inverse Condemnation.
Circuit Court Judge Baker of Orange County agreed, entering judgment
for the landowner.
The District appealed.
On December 17, 2003, the Fifth District Court of Appeals threw out
the SJRWMD's appeal citing lack of jurisdiction, saying the SJRWMD
should have followed the law and offered specified remedies to the
However, following the unanimous dismissal of the District's appeal,
one of the three judges, J. Pleus, wrote a scathing opinion of the
evidence he had heard.
"I write only to describe the extortionate actions of St. Johns
Water Management District (St. Johns) in this case as shown in the
trial below. I hope that upon remand to the District, it will agree
to a reasonable option for the property owner. I also hope that the
District will stop the extortionate demands on property owners which
this case demonstrates."
The SJRWMD had required of Koontz to reduce the use of 14 acres of
land to one acre, even though the land was in an area already impacted
by major highways and other drainage structures, and was in no way
considered "pristine." Koontz had proposed the use of three
and seven-tenths acres for development.
The District also required mitigation in two projects unconnected
to Koontz' property -- up to seven miles distant.
Continued Judge Pleus: "Elizabeth Johnson, supervising regulatory
scientist for St. Johns, reviewed the original permit application
in 1994 and performed an onsite assessment. Although she did not observe
any fish or wildlife onsite, she incredibly concluded that the proposed
development would adversely affect fish and wildlife."
Concerning the need for offsite mitigation, Judge Pleus observed,
"When asked by Koontz's attorney how performing offsite mitigation
five or six miles away benefited impacted wildlife on Koontz's property,
Johnson responded that 'five or six miles is not a long way for a
bird to fly.'"
"St. Johns' demands for additional mitigation did not further
any legitimate state interest."
Judge Pleus concludes opinion by writing, "Instead of having
any essential nexus to protecting fish and wildlife potentially impacted
by Koontz's development, I conclude… that St. Johns' demands for offsite
mitigation were nothing more than an 'out-and-out' plan of extortion."
This case, and Judge Pleus' opinion, point out two salient features
of the current state of environmental regulation.
First, that the agencies often take the route of saying to the landowner,
"If you don't like our restrictions, take your hundred thousand
dollars and ten years of your life and sue us," an attitude that
gives them far more power than the legislature ever intended.
Secondly, the attitude of many courts is to give the state, as presumed
protectors of the public interest, the benefit of the doubt in court
(called 'great weight').
This court, and Judge Pleus in particular, recognized that agencies
and their "scientists" may also be guilty of extortion,
and without the protection of the legal philosophy of Sovereign Immunity,
would be guilty of acts that would have an ordinary citizen sent to
All landowners of whatever size owe Judge Pleus their gratitude for
exposing an abuse of the system under which citizens have long suffered.
Judge Pleus' address is 5th DCA, 300 Beach Street, Daytona Beach,
FL, 32114. Website is http://www.5dca.org
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