Last week, the Conservancy of Southwest Florida hosted Cornell University Professor Dr. Tony Ingraffea, as part of its “Evenings with the Conservancy” series who spoke on the “Effects of Unconventional Drilling” on November 8.

Oil & Gas in Southwest Florida

The evening began with an introductory presentation by Nicole Johnson, Director of Environmental Policy at the Conservancy, including a brief history of the oil and gas (mainly oil) industry in Southwest Florida. Oil wells have existed in Southwest Florida since the 1940s, but the industry has not thrived here like it has in other areas, such as the western United States.

The Collier Controversy

The Conservancy played a prominent role in recent controversies involving “alternate extraction” techniques in Collier County in 2013 and 2015. These controversies arose from use of fracking and unconventional extraction techniques at the Hogan Well in eastern Collier County, and resulted in increased public awareness of potential environmental concerns relating to fracking. The Conservancy has identified banning alternate extraction techniques as their #1 priority during the 2018 legislative session.

2018 Bills: H.B. 237/S.B. 462

The Conservancy is encouraging support of Florida H.B. 237, and its companion S.B. 462. If enacted in their present form, all forms of “advanced well stimulation treatment” (including fracking) would be prohibited in Florida.

On November 9th, S.B. 834 was introduced, and would impose penalties of $50,000 per incident on anyone who approves or engages in “extreme well stimulation” (including fracking).

Presentation by Dr. Tony Ingraffea

Dr. Ingraffea is an accomplished scientist who has studied and written about the subject for many years. He presented statistics on Florida’s historical oil and gas production relative to other states; use of solar power in the Sunshine State; and information about methane and CO2 (greenhouse gas) releases from oil and gas operations. Dr. Ingraffea also provided information on countries, states, provinces, and cities and counties that have banned fracking, including:

  • In Florida, 40 counties (of 67) and 52 cities have either banned fracking outright, or have passed resolutions opposing it. Collier County has not taken any formal action.
  • Florida’s oil production peaked in 1978, when production reached 4 million barrels/month.
  • Today there are around 60 producing oil and gas wells in Florida, and they produce around 150,000 barrels/month.
  • Every day, the United States consumes around 20 million barrels/day.

Dr. Ingraffea alluded to the United States’ plan to withdraw from the Paris Agreement in his discussion of greenhouse gas emissions, and provided some alarming statistics and projections.

Dr. Ingraffea concluded with a picture of Southwest Florida completely submerged, and he cautioned that Southwest Florida could be under water by 2022 (in five years), if the greenhouse gases and methane from oil and gas production remain on their present course. Amid gasps (and some giggles) from the crowd, he emphasized “these are only projections.”

Takings/Bert Harris Act

The arguments for conservation are compelling and sincere. However, regulation of resources involves striking a balance among competing interest holders. Because of this, in banning extraction techniques, the legislature would be wise to consider potential impacts to mineral rights holders. Failure to do so could lead to takings and Bert Harris Act lawsuits, and the possibility of indeterminable, potentially enormous, liability exposure for state and local governments in Florida.

If you have any questions regarding fracking or land use in Southwest Florida, please feel free to contact me at jeff.wright@henlaw.com or by phone at 239-344-1371.

If you’re a regular reader of this blog (and I hope you are, or will become one!), you will know that many of my posts, over the years, have to do with property rights. An important component of property rights is valuation of the property right taken, or at stake. Today, as part of my series with local appraisers, I am interviewing Matt Simmons, an appraiser and principal with the firm of Maxwell, Hendry & Simmons, LLC.

Carlos: What do appraisers do?

Matt: At the core, we value the bundle of rights inherent in real property. We typically determine the value through application of one or more commonly accepted approaches to value: the Sales Comparison, Cost, or Income approach. But within each approach the nuance of the overall rights remains the value driver. The acronym DUE encompasses the fundamental rights most fee simple real property possesses. These are the rights of disposition, use, and exclusion. When an action (governmental or otherwise) impacts one of these rights, the value of the property is almost always impacted.

Carlos: What made you want to become an appraiser?

Matt: Like many professionals, I was introduced to the profession through a friend. I began working in appraisal data entry when I was 19 and gained my initial trainees license the following year. I’ve always had an interest in real estate and the opportunity to analyze properties, solve complex valuation issues, and build a real estate centered business is incredibly rewarding.

Carlos: How do you work with attorneys in property rights cases?

Continue Reading Meet the Appraiser: Matt Simmons

What do they have in common? Nothing…except that when I was getting a new set of tires put on my car, I had time to read Murr v. Wisconsin, the recent U.S. Supreme Court 40-page decision in a property rights case involving a regulatory takings analysis.

Facts

The facts of the case are pretty simple. The Murrs purchased Lots E and F separately in the 1960s, transferring Lot F to a family plumbing business, but keeping ownership of Lot E in their own names. The Murrs transferred Lot F to their kids in 1994 and Lot E to the kids in 1995. The lots each had less than one acre available for development. The Murr kids brought the lots under common ownership (in other words, the kids owned both lots, unlike the parents, who owned one lot through a company and the other lot as individuals).

Once under common ownership, state and local rules forbidding separate sale or development of the lots came in to play. The Murr kids wanted to sell Lot E as part of an improvement plan for both lots, and requested variances from the local zoning authority. The zoning authority denied the variance request, and the state courts affirmed the denial of the variance request.

Continue Reading A New Set of Tires and the Latest Supreme Court Case on Property Rights

It’s an old saying, but it’s true in life and in court, as illustrated in a recent takings decision, Town of Ponce Inlet v. Pacetta, LLC, et al. The Town appealed “a multi-million-dollar” judgment on an inverse condemnation claim. Like most takings cases, this one has a long and confusing history.

The property owners had purchased ten adjoining parcels, seeking to develop a waterfront project. The Town, however, amended its comprehensive land use plan, leaving the property owners unable to develop the ten parcels as contemplated.

First Lawsuit

The property owners sued the Town, challenging the amended comprehensive land use plan. The property owners successfully argued, at both trial and on appeal, that the ten parcels should be treated as a single 16 acre parcel.

Second Lawsuit

Continue Reading Actions Speak Louder Than Words

According to The American Heritage Dictionary, Second College Edition, the word “fight” has several meanings, including

[t]o stand up against something or assert oneself.”

Recently, as a nation, we celebrated the 241st anniversary of the Declaration of Independence. We are justly proud of that independence. The signers, and other heroes, stood against tyranny and asserted themselves for liberty.

It took a fight to achieve that independence.  It has taken many other fights since then to preserve it.

Continue Reading Fight for Your Rights

IMG_0642I need to let you know how my Saturday project went. In my last post, I told you about a home improvement project that I needed my dad’s help on. And I told you about the concept of “highest and best use.”

I asked my dad to come by at 9 am. He brought a low wattage, high illumination fluorescent shop light that gave off way more light at a lower heat than the work light I had. He also brought a ten inch sliding compound miter saw, saw horses, and a saw table, plus a whole lot more.

The work went pretty quickly, and it had to. It gets hot fast in an attic in Florida this time of year. It was very cramped and hard to get enough room for a good hammer swing on the mend plates. No such problem installing the construction screws. My dad pre-drilled the 2 by 6 splice lumber. (“Son, this drill is practically a family heirloom.  It was my Uncle Bob’s. It’s a 3-way drill, so it can hammer, drill, and do both at the same time. Works great on concrete. They don’t make ‘em like this anymore.”) The power screwdriver made the rest easy.

Continue Reading What is Highest and Best Use – Part II

Did you have a home improvement project last weekend? I did.

But this one was beyond my limited skills (and limited tools), so I got my dad involved.  He can fix anything.  And he’s got the ultimate set of tools.

After he looked at the situation, he specified the fix. He liked my suggestion of using a vertical beam in conjunction with the splice that he specified. (Below is the before picture.)

IMG_0613I guess I did learn something helping out here and there as a kid in the driveway and later on in the shop.

My dad gave me very specific instructions on the materials.  “You need a 2 by 6 eight feet long. Make sure it’s pressure treated. Pick out a good piece of lumber. You want a good straight grain. Get No. 8 construction screws three inches long.  Square drive, not a hex drive.  They get chewed up too easily.  You could use Phillips head if you have to.”

Couldn’t find the right screws, so I got two sets of what came the closest. And two 2 by 6’s eight feet long. Just in case.

IMG_0640What does this have to do with property rights? We Americans love our property. Just check out Home Depot or Lowe’s some weekend. Jam-packed with do-it-yourselfers.

Now, I wasn’t thinking “highest and best use” when I was getting the materials that my dad specified–I was just getting the stuff I needed for my project. But as I thought back on it, I remembered the concept. In determining value of a property that’s being taken,

the highest and most profitable use for which the property is adaptable and needed, or is likely to be needed in the near future, is to be considered….”

This definition comes from an older case, but remains a great way to capture all that goes into the concept of “highest and best use.” In my neighborhood, the highest and best use is residential (even though the zoning would allow for more). So I want to keep my house looking right.

I know your property is as important to you as mine is to me. If the government, or someone else, wants to take yours, make sure you know about highest and best use.

Recently, I attended the 65th running of the Twelve Hours of Sebring, the world-famous endurance race for sports cars. Past winners include Mario Andretti and A.J. Foyt, among other giants of auto racing.

This was my first time to the Twelve Hours of Sebring race. WOW!! The sound of that many high-performance motors was incredible and incredibly loud, even with my noise-canceling headphones.

Four classes of sports cars ran in the Twelve Hours of Sebring 2017, but I watched the GT Le Mans class the closest because the cars were very recognizable:  two Corvettes, two BMW M6s, a Ferrari 488, three Ford GTs, and two Porsche 911s. The Hairpin, the most famous turn at Sebring, appeared to be the most challenging spot for the drivers: hard braking, followed by hard acceleration, with drivers trying to pass and avoid getting passed. Here are the two Porsches dueling:

The No. 66 Ford GT held the lead in the GT Le Mans class for a portion of the race, and was leading when my dad and I left the race just after sundown. I made it home in time to watch the last ten minutes of the race. Much to my surprise, the No. 3 Corvette won the GT Le Mans class. WOW!!

Now, how does this apply to your property rights? The answer: Never Give Up.

The government wants your property? Never Give Up. The government isn’t offering what your property is worth? Never Give Up. The government has taken your property? Never Give Up.

P.S. If you go to the next Twelve Hours of Sebring race, you’ll need tickets, a big hat, sunblock, lots of water, snacks, headphones, sunglasses, beach chairs, shoes you can walk long distances in, hand sanitizer, and your smartphone (so you can take pictures and watch the race on TV to see what’s happening on other portions of the track),

diamond-158431_1280In the film “Snatch,” made by British director Guy Ritchie (former husband of Madonna), there are a lot of moving parts: an 86 karat diamond, an underground boxing match, a robbery gone awry, a chew toy eaten by a dog, and a host of characters from London’s underworld bearing unusual names like Turkish, Brick Top, Boris the Blade, and Bullet Tooth Tony, among others. The two parallel plots, the journey of the 86 karat diamond around London’s underworld and an unlicensed bare-knuckle fight, come together near the end of the film. It’s a great movie but it takes a lot of concentration to follow all the action.

As a business or property owner, you may be confronted by a government project seeking all or a portion of your property. When this happens, you will receive a written notice from the government agency, and it might have a lot of moving parts. The notice will likely contain several sections of the Florida Statutes, as well as other materials, such as sketches of the areas the government agency proposes to take or the facilities the government agency wants to install on your property.

But you have an advantage:  you can hire a lawyer to help you sort out the moving parts and protect your property rights. With your lawyer’s counsel, you can decide whether to challenge the proposed taking or the government’s valuation. Keep your eye on the prize whether it’s your home, investment property, or business…or an 86 karat diamond.

Please feel free to contact me with any questions at carlos.kelly@henlaw.com or by phone at 239-344-1326.

Property Rights Flickr Kax VorpalLast week, I posted video about oral argument heard by the Florida Supreme Court regarding the Bert J. Harris, Jr., Private Property Rights Protection Act, which “provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property,” as it is put in the statute.

Let’s dig deeper.

The Florida Supreme Court will have to resolve the conflict between two intermediate appellate courts over whether a property owner has a valid claim under the Bert Harris Act if governmental action is against a neighboring property, rather than the property owner’s property.

In the FINR II, Inc. v. Hardee County case, the Second District Court of Appeal (which includes counties on the west coast, including Charlotte County, Collier County, and Lee County) said “owners of real property that [have] been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property” have a claim under the Bert Harris Act.

In the City of Jacksonville  v. Smith case, however, the First District Court of Appeal (which includes counties in north Florida from Escambia to Nassau) said the Bert Harris “Act simply does not apply where, as here, the … property was not itself subject to any governmental regulatory action.”

I predicted the Florida Supreme Court would resolve this conflict this year.  Stay tuned.

Photo courtesy of Kaz Vorpal under Flickr Creative Commons License