A Florida man is suing Charlotte County and several federal officials over a nearly $120,000 fee he is required to pay as part of a county Habitat Conservation Plan (HCP) designed to protect the endangered Florida scrub-jay.
Michael Colosi, a tech entrepreneur, is the plaintiff in the federal lawsuit filed in the Middle District of Florida on Oct. 29. Colosi, who is represented by the Pacific Legal Foundation, argues that the fee he would be required to pay in order to use about one-fifth of his 5-acre property to develop a single-family home is “enormous and arbitrary.”
Colosi would like to leave the remainder of his land in Punta Gorda, near Fort Myers, in its natural state, but the county’s HCP fees are based on the overall size of a property, not just the portion where the home would be constructed, according to the lawsuit. The fees are not pegged to actual impacts the development may have on the Florida scrub-jay’s habitat, the complaint says.
“Charlotte County’s fee scheme is a clear violation of property owners’ rights,” Johanna Talcott, an attorney at Pacific Legal Foundation, said in a prepared statement. “The Supreme Court has consistently held that development fees must have a demonstrated link to impacts of development, and that fees must be proportional. A fee scheme that more than doubles when the size of a property changes by a hundredth of an acre, as this fee scheme does, is clearly wrong. Further, these fees drive up the costs for Floridians trying to build much-needed housing.”
The lawsuit argues that the county’s $118,527 fee is a violation of Colosi’s property rights under the Fifth Amendment. But the plaintiff’s attorneys also allege that the federal government’s attempts to regulate the habitat of a bird species that only exists in Florida exceeds Congress’s authority under the Constitution.
Audubon Florida officials said the group was unfamiliar with the lawsuit and the property in question, but Executive Directive Julie Wraithmell said HCPs do have value in achieving conservation goals.
“More generally speaking, because Charlotte County negotiated an HCP with the (U.S. Fish and Wildlife Service) for impacts to threatened and endangered species, landowners enjoy a streamlined permitting process managed at the county level, rather than having to incur the expense and delays associated with seeking their own federal incidental take permit from the USFWS,” Wraithmell told the Florida Record in an email. “HCPs deliver efficiencies for landowners while providing more meaningful mitigation than would be generated by the issuance of piecemeal incidental take permits.”
The Pacific Legal Foundation said Colosi’s home-building dream was dashed by the federal and county governments. The foundation downplays any habitat impact on the Florida scrub-jay from Colosi’s home project, arguing that the property consists of tall pines and dense saw palmetto and is not suitable for the endangered bird.
Colosi has also agreed to comply with HCP requirements, including not clearing land during nesting season and planting shrub oak vegetation that attracts scrub-jays.
The lawsuit seeks a court declaration that the conservation fee is unconstitutional, an injunction barring the county from enforcing the fee schedule on Colosi’s property, a declaration that federal regulations relating to the scrub-jay on non-federal lands are a violation of the Administrative Procedure Act, and an award of attorney fees and other lawsuit expenses.
A Charlotte County spokesman said he could not comment on pending litigation.