Save Endangered Areas (Sea Ordinance)

11/23/2003 | Al Gutierrez

[alfons]

The Brevard County Commission is now proposing a new ordinance called the Save Endangered Areas or as we term it the Sea Ordinance. This proposed ordinance is a clear violation of property rights.

This ordinance would force the taking of 1/2 of any landowner's property of five acres or more or greater withon specified areas and turn it into a preserve at the expense of the landowner without any compensation. This would result in crowded building of single family homes on smaller lot sizes. Additionally, they wish to incorporate a "no kill" solution into the package meaning no killing of any plants or anything within that preserve. This would cause less growth in Brevard County. Again, the environmentalists want to dictate what a landowner can and cannot do on his property.

The vote in the County Commission is to take place in January 2004. Two of the county commissioners Ronald Pritchard and Jackie Colon are against this ordinance. One of the commissioners who might be the swing vote is Truman Scarborough. We need to e-mail all the county commissioners as well as send them faxes stating that we are tired of the environmentalists dictating their agenda and we need to say "No" to this dictatorial ordinance. We ned to be constantly sending them e-mails and faxes. As the vote drwas closer, we may wish to have a demonstration in front of the County Building In Viera and invite TV cameras and the newspapers. Some of you reside in Brevard or nearby this county. Each of us should send e-mails and faxes once a day to these commissioners. As the vote gets closer besides having a possible demonstration, we should increase in sending the e-mails and faxes as well as contacting these commissioners via phone urging them to vote "no" If these commissioners hear enough from all of us there would be a good chance that this ordinance may be defeated. Thanks, Al Gutierrez

[Freedom4US]

Where is this at?? Not in the United States, of course.

Right???

[farmfriend]

Rights, farms, environment ping.

Let me know if you wish to be added or removed from this list.
I don't get offended if you want to be removed.

[alfons]

Unfortunately its here in Brevard County USA on the Space Coast.

[concerned about politics]

turn it into a preserve at the expense of the landowner without any compensation.

Somethings wrong with this story. He has to pay to build up land stole from him?
Nah. Got a link?

[alfons]

Check the Brevard County portal under their Dept Of Natural resources. Yes they expect the landowner(s) to maintain those areas which is what i believe to be the dangerous aspect of this proposed ordinance

[concerned about politics]

This ordinance would force the taking of 1/2 of any landowner's property of five acres or more or greater withon specified areas and turn it into a preserve at the expense of the landowner without any compensation.

This is blantaly facist. Really, somethings wrong here. Are you leaving something out?

[concerned about politics]

Yes they expect the landowner(s) to maintain those areas which is what i believe to be the dangerous aspect of this proposed ordinance

Sounds unconstitutional to me. It's like being forced to pay for anothers house next door. You can't live there, but they send you the bill.

[alfons]

Unfortunately, I am not leaving anything out. What they wish to do is to clump single family homes into smaller lots and leave the reat as a preservation. It is rather fascist, I agree with you. We need to e-mail all the county commissioners on this as I stated before.

[Carry_Okie]

This is blantaly facist. Really, somethings wrong here. Are you leaving something out?

Where have you been? Forest landowners have been similarly forced to do the same things in Santa Cruz County, CA for years. The County used zoning law to swipe a cool $2.5 BILLION dollars worth of timber from its owners.

[Helix]

Is this the ordinance?

PDF file:
http://natres.brevardcounty.us/assets/documents/pdf/seaord_agenda_report.pdf

Google HTML version:
http://216.239.57.104/search?q=cache:S5E8kt8LovEJ:natres.brevardcounty.us/assets/documents/pdf/seaord_agenda_report.pdf+Brevard+County+Dept+Of+Natural+resources+SEA+ordinance&hl=en&ie=UTF-8

[marsh2]

If dedication of the land greater than 5 acres is a condition of a buiding permit, this would appear to be a compensable property takings under the Fifth Amendment.

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987) Justice Scalia, in delivering the opinion of the Court, explained the necessary nexus between the conditions of use imposed by regulation and the actual amelioration or elimination of those aspects of the proposed use which are considered dangerous or injurious to the public:

..."Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house -- for example, a height limitation, a width restriction, or a ban on fences --so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power, rather than a taking, it would be strange to conclude that providing the owner an alternative to that prohibition which accomplishes the same purpose is not.

"The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use, but "an out-and-out plan of extortion." J.E.D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A.2d 12, 14-15 (1981); see Brief for United States as Amicus Curiae 22, and n. 20. See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. at 439, n. 17.

In Dolan v. City of Tigard, No. 93-518 (1994), Chief Justice Rehnquist, delivering the opinion of the Court, further developed the rationale of Nolan in examining the proportionate balance of the regulatory conditions imposed upon use with the severity of the danger or injury the regulations were intended to ameliorate or eliminate:

... "Under the well-settled doctrine of 'unconstitutional conditions', the government may not require a person to give up a constitutional right-here the right to receive just compensation when property is taken for a public use-in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. See Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v. Board of Ed. of Township High School Dist., 391 U. S. 563, 568 (1968)."

..."In evaluating petitioner's claim, we must first determine whether the 'essential nexus' exists between the 'legitimate state interest' and the permit condition exacted by the city. Nollan, 483 U. S., at 837.If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard. 483 U. S., at 838. Here, however, we must decide this question."

[non-anonymous]

"Significant Environmental Areas and Natural Resources Standards." Is that the one?

I read some of the draft, and it seems clear that while it does apply to all 5-acres-contiguous plats within the crucial habitat zone, it's only triggered upon new development (granted, this does include altering vegetation, which seems pretty strict). I don't see where it requires otherwise idle landowners to re-vegetate or re-habituate their property, but hey, I didn't slog through it all.

[Savage Beast]

"Environmentalists" are not merely harmless do-gooders.

[E.G.C.]

BTTT!!!!!!

[sauropod]

If this passes, it might be time to not wait until the next election to throw the bums out - if you get my drift.

Will ye live free or under tyranny?

[sauropod]

See post no. 16. It may come to that where you are also.

[Modernman]

This law seems to only apply to new development, rather than forcing existing landowners to give up part of their property without compensation. It's a pretty dumb, anti-development law, but I don't think it's unconstitutional.

[alfons]

However, this is in conjunction with other ordinances that do exist where for example no trees could be removed which is one of the ordinances that exist and several others. The issue is Does the government have a right to tell proerty owners to set aside so much land when that land can be developed? Is not the landowner the true conservationist? After all, if the landowner does not maintain his land, the value of his property will obviously drop. As long as the landowner does not infringe on the rights of others, he or she should be able to do with the land what they please.

[alfons]

In Florida, we have the Bert harris Act which provides for compensation to lanadowners on takings issues. If this ordinace is approved, I am sure there will be quite a number of filings under Bert Harris. However, this proposed ordinance is in conjunction with other existing ordinances on this issue.