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.

Over the past several years, hydraulic fracturing (or “fracking”) has become a very divisive environmental and political issue in many areas of the country. As our society’s desire for cleaner energy has become more of a priority, lawmakers and agencies at federal, state, and local levels have been confronted with determining whether and to what extent the use of hydraulic fracturing methods should be regulated, and whether such activities pose a potential threat to our drinking water sources.

What is Fracking?

Developed in the 1940’s, hydraulic fracturing is a method to extract conventional oil and gas resources found in permeable sandstone and carbonate reservoirs by drilling vertically into rock formations and injecting fluids under high pressures.

Continue Reading The Future of Fracking in Florida

imac-965325_1280As 2016 closes, we reached out to our team and asked them to share some of the most notable issues in real estate and land use & environmental law:

Residential Closing Best Practices Requirements by Amanda Barritt

2016 saw the CFPB regulations and Best Practices requirements move into high gear with respect to financed residential closings. Lenders, attorneys, and title companies have invested a lot of time and money coming into compliance. However, the results of the national election, along with the ruling in the case, PHH Corporation v. CFPB, are causing these players to question whether any, or all, of the CFPB lending regulations will be done away with. For now, Melissa Murphy, Senior Vice President and General Counsel of the Attorney’s Title Fund, suggests slowing down on making significant investments in Best Practices, while continuing to make sure to comply carefully with RESPA, Section 8(c) requirements as to affiliated business arrangements until we see what happens in 2017.

Condo & HOA: Fire Sprinkler Retrofitting by Molly Maggiano

As the year winds down to an end, the opportunity for condominium associations to opt-out of fire sprinkler retrofitting is also coming to a close. The subject of fire sprinkler retrofitting proved to be a hot topic during the course of the year, due in part to communications put out by the Florida Division of Condominiums regarding the applicability of the obligation to retrofit, which left many associations who thought they were exempt confused as to whether they were subject to retrofitting, whether they should conduct an opt-out vote, and the implications of such a vote. This resulted in an abundance of frantic calls to association attorneys who were also dismayed and left to wonder whether the Division would clarify its statement. Thankfully, the Division did correct its communications, but the ordeal emphasized the importance and benefits of having a qualified association attorney on hand in crucial situations such as this.

2016 Significant Foreclosure Decisions by Shannon Puopolo

Foreclosure filings continued to decline in 2016. Notwithstanding, some significant foreclosure decisions came out this year. Below is my “Top 3” List:

  • The Florida Supreme Court affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., holding that where an initial foreclosure lawsuit is dismissed by the court, such dismissal does not trigger the application of the 5-year statute of limitations, which would otherwise preclude a lender from filing a second action. Rather, the court held the lender is only prevented from suing on installment payments that are more than 5 years old.
  • The Eleventh Circuit Court of Appeals held in Failla v. Citibank, N.A. that where debtors file a statement of intent to surrender their residence in Chapter 7 bankruptcy, they must also waive any defenses or counterclaims raised in a pending state court foreclosure action.
  • The Fourth District Court of Appeal held in Ober v. Town of Lauderdale-by-the-Sea that the lis pendens statute does not discharge liens that are recorded and based on conduct which occurs after the date of the final judgment of foreclosure, even if such liens attach to the real property prior to the date of the foreclosure sale.

Land Use Law by Austin Turner

It was an exciting year for land use and environmental law at both a state and local level. On January 21st, CS/CS/SB 552 was enacted to comprehensively address issues such as Everglades restoration. In response to threats like the Lake Okeechobee algae blooms and the Zika virus, the Governor declared several States of Emergency which led to permit extensions. Recently, a supermajority of Florida voters approved one of the two renewable energy measures establishing a constitutional ad valorem tax exemption for solar power. Locally, Lee County residents approved a non-binding referendum for Lee County’s land acquisition and stewardship program, “Conservation 20/20.”

On behalf of the Real Estate and Land Use team at Henderson Franklin, we wish you and yours a very Happy Holiday season and New Year. Please enjoy our 2016 e-card benefitting the Golisano Children’s Hospital of Southwest Florida:

 

 

Under Section 252.363, Florida Statutes, qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months.

In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

Types of Permits that Qualify

Continue Reading New Executive Orders Provide Further Statutory Extension Opportunities for Florida Development Approvals

Foreclosure Nick Bastian FlickrOn August 24, 2016, the Fourth District Court of Appeal issued an opinion in Ober v. Town of Lauderdale-by-the-Sea, No. 4D14-4597, 2016 WL 4468134 (Fla. 4th DCA August 24, 2016) that is likely to have broad implications on Florida’s foreclosure process and negatively impact investor interests in distressed real estate. Moving forward, from a land use perspective, the case should also serve as a cautionary tale and reminder about the importance of a prospective buyer’s due diligence.

Background

The genesis of the case began on November 26, 2007, when a lis pendens was recorded on a property as part of a foreclosure proceeding against a homeowner. Thereafter, a bank obtained a final judgment of foreclosure on the property in September of 2008. Several years following the final judgment, a real estate investor, Ober, purchased the property on September 27, 2012 at a judicial sale.

The crux of the case revolved around seven (7) separate code enforcement liens that had been recorded on the property by the Town between the dates of July 13, 2009 and October 27, 2011, all stemming from violations that occurred after the final judgment was entered. Finally, in 2013 the Town began to impose three more liens on the property in relation to the earlier violations.

In an attempt to strike the liens against his property, Ober filed an action to quiet title in civil court. In response, the Town filed counterclaims to foreclose the ten (10) liens, which were later approved by the trial court in its final judgment that was entered against Ober.

According to the Ober Court, Florida’s Lis Pendens Statute Does Not Apply to Liens Recorded Between Final Judgment and the Judicial Sale

Continue Reading New Florida Foreclosure Case May Lead to Less Participation and Greater Risk for Real Estate Investors

This year, on two separate election days, Florida voters had — and will have — the opportunity to vote on two different constitutional amendments.

(Editor’s Note: At press time, the August 30th primary had yet to occur. However, it has since been reported that Amendment 4 was approved by nearly 73 percent of Florida voters at the primary, thus the measure will take effect on January 1, 2018, and expire on December 31, 2037.)

Amendment 4: Florida Tax Exemptions for Renewable Energy Measure

By way of background, the Florida Constitution currently provides for local government ad valorem taxes on real property and tangible personal property, assessment of property for tax purposes, and exemptions to these taxes. Section 4(i) in Article VII of the Florida Constitution also provides that the legislature may prohibit the consideration of the installation of a renewable energy source device in the determination of the assessed value of real property used for residential purposes.

Continue Reading Solar Energy is Hot on Florida Ballots in 2016

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

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