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 suffered."

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 landowner.

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 prison.

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

Brevard Insider is published 5 times a week except holidays at 1106 Ramblebrook St., Malabar, Fl. 32950. 321-956-0815. Fax: 321-956-8762. ESCMC@aol.com Copyright 2003. Publisher Pond Press, Inc. Editor: Edward S. Clark. Assistant editor: Dan Warrensford. Contributing editors Doug Doudney, J. D. Tucker, Michael Moehle, Bob Brewster, David Russell, Chuck Morley, Bill Love. Contrarian: Robert D. Clark. Webmaster and Electronic distribution: Tim Wooley. Subscription price $6.50 per month.


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