Henderson, Franklin, Starnes & Holt, P.A.

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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…

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

Executive 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

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

The term “due diligence” gets thrown around a lot in the development world, but often with little regard for what the term entails. As with all things relating to property, this post is in no way intended to encompass all considerations in due diligence as properties are unique and present specific needs of review. However, the following list provides a brief glimpse into items to review when you are considering the purchase of real property for development in Southwest Florida:
Continue Reading 8 Practical Tips for Land Use Due Diligence in Southwest Florida

As a property owner in Florida, you have a right to appeal the property appraiser’s assessment of your property’s value, a denial of your application for an exemption (homestead, veterans, or senior citizen), a portability denial, and a denial of your application for property classification such as agricultural or historic. For a few “Helpful Tips for Reviewing your TRIM Notice”, please click here.

Typically, once a taxpayer decides to bring a challenge based on any of the above-mentioned grounds, a request for an informal conference will be made with the County’s property appraiser to discuss the value or to discuss the denial of an application for a property exemption or classification. Following an informal conference, in the event that the issues cannot be favorably settled, taxpayers (or their representatives) can file a petition with the local Value Adjustment Board (VAB). Alternatively, Florida law allows taxpayers to bring such challenges in circuit court.

Appeals to the Value Adjustment Board (VAB)

Continue Reading Know Your Rights as a Property Owner in Florida Before Opening your TRIM Notice for 2016