11745456_10204830522498328_4583304138522897113_n(1)In City of Fort Pierce v. Treasure Coast Marina, LC, No. 4D14-3064, 2016 WL 3087680 (Fla. 4th DCA May 31, 2016), the Fourth District Court of Appeal addressed whether a marina that was owned and operated by a municipality should qualify as a traditionally exempt “municipal or public purpose” for ad valorem tax exemption purposes under Article VII, Section 3(a) of the Florida Constitution.

A Brief Look at Florida’s Constitutional Ad Valorem Tax Exemption for “Municipal or Public Purposes”

According to Article VII, Section 3(a) of Florida’s Constitution, “[a]ll property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation.”

Continue Reading Privately-Owned Marinas Are Not Exempt from Ad Valorem Taxation in Florida, but what About City-Owned Marinas?

Incremental increases in statutory civil penalty amounts for statutes administered by the Environmental Protection Agency (EPA) have typically occurred. Dating back to 1990, federal agencies have long been required to issue regulations to adjust their statutory civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law.

The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, (“DCIA”) required agencies to review their statutory civil penalties every four years and to adjust the statutory civil penalty amounts for inflation if the increase met the DCIA’s adjustment methodology. Over time, since the DCIA methodology caused statutory civil penalties to lose value relative to total inflation, the formula was revised.

Accordingly, for the first time, this year’s adjustments to federal statutory civil penalties were calculated using a revised set of criteria under the 2015 amendments to the Federal Civil Penalties Inflation Adjustment Act (the “2015 Act”). Under the 2015 Act, federal agencies are required to adjust the level of statutory civil penalties with an initial “catch-up” adjustment through an interim final rulemaking and, starting on January 15, 2017, make subsequent annual adjustments for inflation. Thus, once a federal agency such as EPA has enacted the one-time catch-up rule, each statutory civil penalty amount will be adjusted every year (rather than every four years) to reflect the inflation that has thereafter accrued. However, there is a cap within the 2015 Act, under which the maximum amount of any initial catch-up increase cannot exceed 150 percent of the level that was in effect on November 2, 2015.

EPA’s New Interim Final Rule

Continue Reading EPA’s New Interim Final Rule Considerably Increases Statutory Civil Penalty Amounts

For the possible record number of attendees at July’s Real Estate Investment Society (“REIS”) luncheon, this won’t be news. For those folks who may have missed it, Assistant County Attorney Michael Jacob and Lee County Planning Manager Mikki Rozdolski walked us through the newly created Pine Island Transfer of Development Rights Program that is not only winning awards but has the potential to offer a workable density transfer program for Lee County developers and landowners.

Among the program’s highlights and innovative concepts is the ability to strip density units from qualifying land in Greater Pine Island and use “off-island” to qualifying receiving lands at a 1:2 ratio. For those looking to increase commercial square footage, the program also allows for the conversion of one (1) density unit to 10,000 square feet of commercial retail and office space. Attorney Jacob noted there is no limit to this conversion (i.e. if your project needs an additional 30,000 square feet, all you need is three (3) density units).

Another novel aspect of this program is that the land from which you take the units does not necessarily lose all economically viable use merely by participation in the program. An example Planning Manager Rozdolski provided was that you could strip off the development units from eligible property, but use that same property for limited agricultural uses, like growing mangoes and then selling those mangoes from a farm stand on the property. Clearly this incentivizes participation in the program since the landowner benefits from selling the units but continue to receive economic benefit from the property as well as general use and enjoyment of the property. This is in stark contrast to most other attempts at a TDR program where landowners remove development rights and essentially lose any benefit of owning the property.

The good news for anyone who wasn’t with us at REIS (as full disclosure, as President this year I am thrilled at the great attendance we’ve enjoyed this year and appreciate everyone coming!), the county has done a phenomenal job at getting the word out about this program and making information as accessible as possible. Head on over here to get additional information and dig into the myriad of innovative and inventive aspects this program has to offer. I think we are all excited to see this program in action!

On June 22, 2016, the seven-member Florida’s Fish and Wildlife Conservation Commission (“FWC”) voted to postpone bear hunting in Florida for 2016. The FWC made its decision in a split 4-3 vote, despite receiving recommendations from its staff and biologists to conduct a bear hunt similar to the one held in 2015.

Nick Wiley, executive director of FWC, stated that:

[a]lthough hunting has been demonstrated to be a valuable tool to control bear populations across the country, it is just one part of FWC’s latest, comprehensive bear management program.”

Last year, a total of 304 bears were killed in a two-day span, which caused an abrupt end to the planned week-long hunt in October.

Southwest Florida Local Government Takes the Hunt into its Own Hands

Continue Reading Florida’s Fish and Wildlife Conservation Commission Votes No to 2016 Black Bear Hunt

Southwest Florida has been fortunate in the first month of this 2016 hurricane season, but if a hurricane crops up next week, is your association prepared?

Here are a few suggestions for protecting yourselves and your association members this hurricane season:

  1. Keep residents up to date on local shelters – how to contact them, where they are located, and what they provide.
  2. Review the building’s zoning and evacuation requirements.
  3. Post evacuation routes in conspicuous locations throughout the property, such as stairwells and hallways.
  4. Make sure to provide support for disabled or special needs residents.
  5. Ensure all insurance policies are up to date.
  6. Have current video or photographs of the property for insurance related damage assessment purposes.
  7. Be sure that computer data is being backed up regularly and that the backup storage component won’t be damaged by the same event that might harm the computer.
  8. Keep landscaping sufficiently trimmed to minimize hazards from flying plant debris.
  9. Consider coordinating probable recovery scenarios with staff and board members.

By putting these nine tips into action, you can feel confident that your association is adequately prepared should the eye of the next big storm set its sights on Southwest Florida.

 

Photo courtesy of NASA Goddard Space Flight Center
under Flickr Creative Commons License

6184015031_52bb1094fd_zExecutive Order 16-155

On June 29, 2016, the Governor issued Executive Order Number 16-155, declaring a State of Emergency throughout Martin and St. Lucie Counties due to the increased number of algae blooms from the Lake Okeechobee discharges. In this Executive Order, the Governor states:

[t]he Obama Administration unreasonably failed to budget for adequate maintenance and speedy rehabilitation of the Herbert Hoover Dike, resulting in frequent discharges of harmful water from Lake Okeechobee to the St. Lucie and Caloosahatchee Rivers and estuaries.”

The Governor explained that the release of these waters has caused an increase in algae blooms that have been dominated by Mycrosystis, an algae that can produce harmful toxins.

Executive Order 16-156

Continue Reading Lee County Included in a State of Emergency Declaration for Algae Blooms from Lake Okeechobee

On June 27, 2016, Lee County staff presented a series of proposed Land Development Code (LDC) amendments to the Local Planning Agency (LPA). Of significant importance, were staff’s proposed amendments to LDC Sections 2-45 through 2-46 and Sections 66-76, which specifically impact the County’s current provisions governing its “Proportionate Fair-Share” and Concurrency programs. In addition, as a companion amendment, staff has proposed a complete revision to the Administrative Code (AC) 13-16.

The Purposes for the Proposed LDC and AC Amendments

According to staff, the purposes behind the proposed changes are: Continue Reading Lee County Local Planning Agency to Consider Proposed Amendments to its Proportionate Fair-Share Program

In addition to providing legal services, Henderson Franklin attorneys are involved in numerous community organizations throughout Southwest Florida. A few weeks ago you heard about Shannon Puopolo and her significant involvement in the Guardian Ad Litem Foundation. Not long after that post, Shannon and Michael Lehnert served on a Lee County Bar Association Committee that organized and ran a charity golf tournament fundraiser for the Guardian Ad Litem Foundation.  Last week, we shared Molly Maggiano’s passion for the arts and for the Sidney & Berne Davis Art Center.

Today, meet Michael Lehnert. Michael joined Henderson Franklin in September of 2015. Since he began, Michael has been handling residential transaction and association matters. Outside the office, he serves on the boards of two local organizations, namely Big Brothers Big Sisters of the Suncoast and Southwest Florida Real Estate Council:

Michael Lehnert and Leah Heinrich

In my capacity as a board member for Big Brothers Big Sisters, Michael helped organize and support the Big Brothers Big Sisters Chef’s Cooking For Kids Event. The event was a great success due to the immense support from the local community, including, in particular, fellow board member Ryan Love of Norman Love Confections, and due to the experienced leadership of the Board, especially the current chair, Bryan Blackwell.

Michael is excited to announce that last week he had the good fortune of being matched up with a Little Brother, Dominick. They have only met once thus far, but Michael is excited about the opportunity to be a positive influence in Dominick’s life for years to come.

Continue Reading Meet Henderson Franklin’s Condo and HOA Team Members: Michael Lehnert

From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with Molly Maggiano and Austin Turner (Henderson Franklin)
From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with Molly Maggiano and Austin Turner (Henderson Franklin)

This year’s two day Urban Land Institute (ULI) Annual Florida Summit was held in Miami at the Turnberry Isle Resort and was comprised of more than 650 attendees. The theme of this year’s event was Creative Disruption: “The Future Ain’t What it Used to Be.”

The mission of ULI is to provide leadership in the responsible use of land and in creating and sustaining thriving communities worldwide. ULI is an independent global nonprofit supported by the top real estate professionals from throughout the state including developers, attorneys, engineers, architects, and land use planners, from both the private and public sector.

The “Creative Class”

Continue Reading “The Future Ain’t What it Used to Be”- 2016 ULI Florida Summit

In light of the recent death of a 2 year old boy by an alligator attack in the Orlando Walt Disney World Resort, associations who operate water bodies within their communities may be wondering what, if anything, they should do to help prevent such tragedies and to protect themselves from liability in the event a wild animal does attack.

The concept is called “ferae naturae” in legal terms, meaning “wild animals.” The question is whether an association owes a duty to its homeowners to guard them against wild animals. In short, the answer is “no.”

The Law on Wildlife

Continue Reading Disney Alligator Death is a Wake Up Call to Florida Associations