2012 Spring Newsletter

Volume 13, Issue 2

In This Issue:

 

LLW Expands Services with New Faces in New Spaces

Two lawyers, a planner and corporate affairs, oh my!

Lewis, Longman, & Walker, P.A. has added two senior attorneys, a land use planner and a director of corporate affairs to its staff.

Alfred J. Malefatto has joined the firm’s West Palm Beach office as Of Counsel and Paul H. Amundsen has joined the firm’s Tallahassee office as Of Counsel.

Prior to joining Lewis, Longman & Walker, Mr. Malefatto practiced law at Greenburg Traurig. Mr. Malefatto has been practicing environmental, land use and administrative law in Florida since 1980. He has represented Fortune 500 companies, developers, homebuilders, small businesses, and local governments in a variety of environmental permitting, enforcement and transactional matters, and in all manner of Florida land use proceedings. He holds an AV® Preeminent™ Rating from Martindale-Hubbell and has been listed In Best Lawyers in America and every edition of Chambers & Partners USA Guide since its inception in 2003.

Prior to joining Lewis, Longman & Walker, Mr. Amundsen was the Managing Shareholder at the Tallahassee office of Ruden McClosky. He is an AV-rated attorney and was among the first lawyers in Florida to be Board Certified in State and Federal Government and Administrative Practice. Mr. Amundsen is an experienced administrative litigator; he has served as lead counsel in numerous formal administrative hearings and appeals, including complex, multi-party cases.  He has handled a variety of matters including licensure, permitting, certificate of need, agency enforcement and bid protests.

Sean Alveshire is the new Director of Corporate Affairs. He has extensive experience in government and public affairs with leadership roles requiring impeccable communication skill. As both a business leader and community volunteer, Sean has been part of economic development, education and leadership enhancement throughout Florida. He is currently Vice Chair of the Broward College District Board of Trustees and the State Chairman, Trustee Commission for the Association of Florida Colleges.

Seth Behn, AICP, is a Senior Land Use Planner with extensive experience in land development and government approval processes. He provides support to attorneys managing issues with Land Use, Environmental, Real Estate and Litigation. He joins the firm from Greenberg Traurig, P.A.

“We are delighted to add these outstanding professionals to our excellent team,” said Kenneth G. Spillias, Managing Shareholder, Lewis, Longman, & Walker, P.A. “We have a unique ability to identify issues, create new solutions and design outcomes that work for our clients, the regulators, and the community. We See Things Differently and our new team members will add to that.”

 

REAL Homeowner Refinance Assistance = “HARP 2”

The government-sponsored Home Affordable Refinance Program (“HARP 2”) is now available for the many homeowners previously unable to refinance because of the value of their homes.  In fact, appraisals may not even be required.  It is expected that this new initiative will help over 1 Million homeowners (who are current on their loans) refinance.

To qualify, your existing loan must have been sold to Fannie Mae or Freddie Mac on or before May 31, 2009.  Your loan balance must be more than 80% of your home’s market value and you can have no late payments to your existing mortgage within the last 6 months (or more than one late payment within the last 12 months).  Investment and second homes are also eligible.  While there are a few other requirements to qualify, this program will provide an excellent opportunity to take advantage of the current historically low interest rates.  Please contact Ken Dodge at (561) 640-0820 or kdodge@llw-law.com  for more information on how you can take advantage of this program.

 

In Sackett, Supreme Court offers those “feeling their way” through the CWA their day in Court

by Tara Duhy & Kevin Hennessy

In Sackett v. Environmental Protection Agency, decided by the Supreme Court on March 21, 2012, Justice Scalia introduces Plaintiffs Chantell and Michael Sackett as “interested parties feeling their way,” around Clean Water Act (CWA) jurisdiction. In this latest opinion addressing the CWA, Justice Scalia presented the quandary facing all who are touched by the regulatory regime of the CWA.  Summarizing the Court’s decisions as to the jurisdictional reach of the CWA over “navigable waters,” Scalia states that, after the Court’s fractured decision in Rapanos v. United States, interested parties are “left to feel their way on a case-by-case basis.” The question decided by the Court in Sackett is when the regulated are entitled to seek judicial review of decisions concerning the CWA’s reach.

The Sacketts purchased half an acre of land in a platted residential neighborhood in Priest Lake, Idaho.  They subsequently obtained a building permit, filled the property to build their home, and were soon engulfed in a regulatory nightmare.  The Sacketts were notified by  the Environmental Protection Agency (EPA) that they had violated the CWA by illegally filling jurisdictional wetlands, and that they must immediately comply with  an EPA  order requiring removal of the fill and restoration of the property or face massive fines and penalties.  The order directed the Sacketts to restore the property as specified in a detailed and costly plan.  It also warned that if they did not comply with the order they would be subject to penalties of up to $37,500 per day for violating the CWA and that the penalty would double for violating the restoration order.

The Sacketts immediately requested a hearing before the EPA to present arguments that their property was not a wetland subject to CWA regulation, however their request was denied. They then sought judicial review in Federal court. Both the District Court and the Ninth Circuit Court of Appeals declined to hear the Sackett’s case on the basis that the CWA precludes pre-enforcement judicial review of compliance orders.  Essentially, the lower courts’ orders required the Sacketts to forgo their plans to build a home on their property and spend more than the purchase price  of the property to comply with the EPA order or suffer severe financial penalties all without the ability to challenge the EPA’s basis for jurisdiction.

The Sacketts appealed and reached the Supreme Court on two questions: 1) whether they could seek pre-enforcement review of the compliance order pursuant to the Administrative Procedure Act (APA), and  2) if they were unable to obtain pre-enforcement review, whether that inability violated the Due Process Clause of the Constitution.  The EPA argued that compliance orders do not constitute final agency action because they are merely steps in the deliberative process and are therefore not ripe for judicial review until the EPA determines to file enforcement action against the parties who violated the orders.

The Court’s opinion, written by Justice Scalia, determined that the APA’s presumption in favor of judicial review entitled the Sacketts to a pre-enforcement hearing.  As such, the Court did not need to resolve the Constitutional Due Process issue.  The Court’s decision was based on its determination that the compliance order was in fact final agency action as contemplated by the APA because in issuing the compliance order the EPA had come to a final determination as to the rights and obligations of the parties that had direct legal consequences. The Court also determined that the Sacketts did not have any other adequate legal remedy and that the CWA neither explicitly or impliedly precludes judicial review under the APA.

Of particular interest are the two concurring opinions by Justice Ginsburg and Justice Alito.  Justice Ginsburg’s opinion emphasizes that the Court’s majority opinion is limited to the issue of agency jurisdiction and does not decide whether the terms and conditions of the compliance order were appropriate, a matter not readily apparent from the Scalia’s opinion. Justice Alito’s opinion, which focuses on the CWA’s nebulous definition of “water of the state” as the underlying cause of the dispute, calls for Congressional action to rein in the EPA and put an end to the costly and inadequate solution of case-by-case judicial decision-making.

The Sackett case concerns a compliance order issued under the CWA.  Both the Court’s majority opinion and the two concurring opinions voiced frustration over the confused extent of EPA’s jurisdiction over “navigable waters” and “adjacent wetlands.”  Nevertheless, the case may have a significant impacts on the EPA’s use of compliance orders pursuant to statutes other than the CWA as well as on the regulatory practices of states administering  programs delegated by the EPA and state statutes modeled on the CWA.  The Court was unmoved by the Government’s arguments about such potential chilling effects.

The Court’s decision highlights the legal reasoning in a similar case, Fairbanks North Star Borough v. U.S. Army Corps of Engineers, wherein the Ninth Circuit Court of Appeals closed the gates of judicial review to property owners seeking relief from adverse CWA Section 404 jurisdiction determinations issued by the U.S. Army Corps of Engineers. The affected property owners in both Sackett and Fairbanks challenged the Government’s determination that jurisdictional wetlands existed on their private property.  In Fairbanks, however, the court affirmed the lower court’s order holding that approved jurisdiction determinations do not constitute final agency action pursuant to the APA, reasoning that jurisdiction determinations merely represent the Corp’s opinion that jurisdiction does or does not exist and therefore do not have direct legal consequences. Thus, the court held that a challenge to a jurisdictional determination would not be ripe until the Corps ultimately denies a permit or takes enforcement action against the parties.

The Sackett decision places greater emphasis on what Justice Alito aptly described as the “notoriously unclear” reach of the CWA and represents another strong signal to the EPA and Congress to provide clarity in this area.

Tara Duhy is a shareholder at the West Palm Beach office of Lewis, Longman & Walker, P.A. Ms. Duhy represents clients throughout environmental and administrative permitting processes involving endangered species, coastal development, the consumption, management and storage of surface waters and the dredging or filling of wetlands, including jurisdiction and permitting pursuant to the Clean Water Act, the Endangered Species Act and the National Environmental Policy Act. She can be reached at tduhy@llw-law.com or at (561) 640-0820.

Kevin Hennessy is a shareholder at the Bradenton office of Lewis, Longman & Walker, P.A. Mr. Hennessy’s practice focuses on administrative, environmental, governmental and land use law, with particular experience in litigation in those areas of law.  He can be reached at khennessy@llw-law.com or at (941) 708-4040.

 

Florida Retirement System Case – Circuit Court Holds 2011 Changes Unconstitutional

by Jim Linn & Glenn Thomas

Leon County Circuit Judge Jackie Fulford issued an 11 page order today on the challenge brought by various unions to the 2011 legislation revising the Florida Retirement System — specifically the 3% member contribution and elimination of the cost of living adjustment for future service. Judge Fulford ruled that the FRS changes were unconstitutional on several grounds, and enjoined the State from implementing the changes. A link to the Order is below.

Judge Fulford found that the preservation of rights provision in the FRS statute [section 121.011(3)(d), F.S.] granted vested contract rights to FRS members, which future legislatures cannot impair. Section 121.011(3)(d), which was enacted by the legislature in 1974, states:

The rights of members of the retirement system established by this chapter shall not be impaired by virtue of the conversion of the Florida Retirement System to an employee noncontributory system. As of July 1, 1974, the rights of members of the retirement system established by this chapter are declared to be of a contractual nature, entered into between the member and the state, and such rights shall be legally enforceable as valid contract rights and shall not be abridged in any way.

Judge Fulford distinguished the facts in this case from those before the Florida Supreme Court in Florida Sheriffs Assoc. v. Dept. of Administration, 408 So. 2d 1033 (Fla. 1981). In Fla. Sheriffs Assoc., the Florida Supreme Court upheld the legislature’s right to prospectively reduce the retirement benefits of current employees, notwithstanding the FRS preservation of rights language.

Judge Fulford ruled in favor of the unions on several other grounds, including: unconstitutional taking of private property without full compensation; and violation of employees’ collective bargaining rights.

If upheld, Judge Fulford’s ruling would require the State to refund the 3% member contribution which has been deducted from members’ pay since July 1, 2011, and restore the cost of living adjustment. It has been estimated that the cost of these two items amounts to more than $1 billion annually. It is likely that the State will immediately move for a stay, and appeal the Order. Click Here to access the Order.

Mr. Linn and Mr. Thomas assist clients in local government, public pension, labor and employment law matters. They advise public employers and pension boards on federal and state laws pertaining to governmental retirement plans and work closely with local governments and pension actuaries in restructuring retirement benefit programs and preparing pension plan documents and amendments. They can be reached at (850) 222-5702 or at jlinn@llw-law.com and gthomas@llw-law.com. For more information, visit www.llw-law.com.

 

Supreme Court Considering Whether to Hear Nationally Significant Stormwater Runoff 9th Circuit Decision

National Resources Defense Council, Inc. v. County of Los Angeles, 636 F. 3d 1235 (9th Cir. 2011). 

by Julia Jennison

Introduction

A recent 9th Circuit Court of Appeals case, Natural Resources Defense Council, Inc. v. County of Los Angeles, 636 F. 3d 1235 (9th Cir. 2011), is currently being considered by the Supreme Court for review.  As discussed below, this case presents issues of nationwide significance for all operators of Municipal Separate Storm Sewer Systems (“MS4”).  This case, if allowed to stand, could have far-reaching implications, creating confusion for the lower courts – and could affect all operators of MS4 systems.  The 9th Circuit decision appears to be in direct conflict with, or incorrectly applies the 2004 Supreme Court holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004) (holding that transfer of water within a single body of water cannot constitute a “discharge” for purposes of the Clean Water Act).  It also has implications related to Rapanos v. U.S., 547 U.S. 715 (2006).  This article reviews the 9th Circuit decision and the bases for appeal to the Supreme Court, including a discussion of the competing decisions which support Supreme Court review.  

The California Case – the Stormwater System

Los Angeles County (“County”) encompasses approximately 4,500 square miles, consisting of both incorporated cities and unincorporated land.  The Los Angeles County Flood Control District (“District”) is a public entity, consisting of 84 cities and some unincorporated areas of the County.  Within the District, stormwater runoff is collected by thousands of storm drains located in each of the 84 municipalities and channeled to a storm sewer system – portions of which are naturally occurring water bodies and portions of which are manmade or channelized.  The municipalities within the District operate MS4s to collect and channel this stormwater.  The County also operates an MS4 for some of its unincorporated areas.  The District allows the municipal and County MS4s to connect to the District’s flood-control and storm-sewer infrastructure (MS4).  The District’s MS4 collects and channels stormwater runoff from across the County in this way.  This stormwater is channeled in the MS4 to various watercourses within Los Angeles County including the Los Angeles and San Gabriel Rivers.

The County, the District and the 84 municipalities were issued a National Pollutant Discharge Elimination System (“NPDES”) permit in accordance with the Clean Water Act, to cover stormwater discharges into the various MS4s.  In Summary, this NPDES permit governs municipal stormwater discharge across more than 3,100 square miles of land in the County.  Permittees are to assure that storm water discharges from the MS4 into navigable waters of the U.S. shall neither cause nor contribute to the exceedance of certain identified water quality standards.

The NRDC case involves pollutants identified at mass-monitoring stations for four watershed rivers.  According to the NPDES Permit, the purpose of mass-emissions monitoring is to (1) estimate the mass emissions from the MS4, (2) assess trends in the mass emissions over time, and (3) determine if the MS4 is contributing to exceedances of Water Quality Standards by comparing results to the applicable standards in the Basin Plan.

The California Case – The Legal Details

In the lower court case (“District Court Case”), the NRDC and Santa Monica Baykeepers brought suit challenging the County and the District and alleging numerous NPDES violations.  In the suit, NRDC et al. alleged the County and District were discharging polluted urban stormwater runoff collected by all of the MS4s into navigable waters in Southern California.  In defense of this allegation, the County and District contended that there was no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers.  The District Court agreed and entered a partial final judgment in favor of the County and District.

At issue before the 9th Circuit in NRDC were stormwater flows that exceeded numerical criteria for mass loading of pollutants, allegedly in violation of the NPDES permit.  The pollutants were detected at two monitoring stations located within the conveyance system of the County and District’s MS4.  Waters in that conveyance system, along with pollutants in those waters, flowed downstream into the waters of two watersheds, the Los Angeles and San Gabriel Rivers.  The 9th Circuit determined that the mass-monitoring Stations for two rivers are located in a portion of the MS4 owned and operated by the District.

Holding that the District was responsible for the discharges, the 9th Circuit found violation of the CWA.  In making this determination, the 9th Circuit found that the violations of the CWA occurred not in the rivers or other waters receiving flow from the MS4, but at a monitoring point physically located in a concrete MS4 conveyance structure owned by the District.  Because of the physical ownership of this conveyance structure, the District became responsible for control of the stormwater flowing through its conveyance, and logically (to the 9th Circuit), for the reduction of pollutants in that stormwater flow mandated by the Permit.

Under this determination, exceedances at the conveyance structures become the basis for civil penalties assessed against the District for each occurrence and the non-compliance can be enforced in a citizens’ suit enforcement action against the District.

Two of the mass-emission monitoring stations are located in a channelized portion of the rivers.  Two others are not.  The 9th Circuit, in its decision made a determination that channelizing a navigable water somehow changes its nature because it held that where the two mass-emission monitoring stations are located in a channelized portion of the river, there was a violation, but where they were not, there was none.

In the course of the ongoing litigation, the District admitted that it conveys pollutants via the MS4, however, it contends that its infrastructure does not generate or discharge pollutants.  The District contends it conveys the collective discharges of numerous municipalities located up stream, and that since there is no discharge into a navigable water, thus there is no NPDES violation.  The District contends the discharges occur at various points along the system, and are caused by other entities.

Rapanos

The County and District contend review of the case is warranted because the 9th Circuit’s holding that man-made improvements to a navigable water of the United States such as channelization as part of flood control or a municipal separate storm sewer system alters its status, is inconsistent with the provisions of the clean Water Act, and the Supreme Court’s decision in Rapanos v. United States.

In the NRDC case, the 9th Circuit has made a distinction between “naturally occurring” water bodies, and artificially altered water bodies.  This is a distinction that is not found in the Clean Water Act.

In Rapanos, the Supreme Court addressed the issue of whether particular wetlands constituted “waters of the United States” under the Clean Water Act.  The 9th Circuit’s decision is inconsistent with the Rapanos decision – in which the Supreme Court differed on a precise definition of what constituted a navigable water of the United States, creating two separate tests for making such a determination.  Neither of the tests created by the Supreme Court turned upon whether a body of waer was artificially altered or “naturally occurring.”  Both expressly recognized that man-made bodies of water could constitute navigable waters.   In fact, in one of the concurring opinions, Justice Kennedy specifically identified the Los Angeles River (at issue in the NRDC case) as fitting the statutory definition of “navigable water”.

SFWMD v. Miccosukee

The County and District also contend review of the case is warranted because the 9th Circuit’s holding that petitioner may be liable for discharges resulting from waters of the Los Angeles and San Gabriel Rivers passing through its channels within the rivers, is contrary to South Florida Water Management District v. Miccosukee Tribe of Indians, which forecloses claims premised upon mere transfers of water within a single body of water.

The issue the Supreme Court decided in Miccosukee was whether the South Florida Water Management District’s pumping of water from the C-11 canal in western Broward County across a levee into the Everglades’ Water Conservation Area 3 (WCA-3) required a federal National Pollutant Discharge Elimination System (“NPDES”) permit under section 402 of the Clean Water Act (33 U.S.C. section 132(a)), when the pump diverts water containing pollutants that do not originate from the SFWMD’s pumps.

In NRDC, the 9th Circuit held that since the mass-monitoring stations were in channelized portions of the rivers the District maintained for flood control, water flowing out of those channels into “naturally occurring” portions of the rivers downstream constituted a “discharge” from an “outfall” for purposes of finding a permit violation by the District.  In summary, the 9th Circuit held that the rivers lost their character as navigable waters when they were channelized for flood control, and were then transformed back into navigable waters when flowing into “naturally occurring” portions of the river.   With this holding, “the Court flatly ignored the basis premise of Miccosukee – that a mere transfer of water between two points of a single body of water cannot constitute the “addition of pollutants” to a navigable water of the United States.”

It should be noted, there is one significant distinction between the NRDC case and the Miccosukee case.  In the NRDC case the County and District do have an NPDES permit.  The issue in this case is not whether an NPDES permit is required, but whether a violation of the permit occurred.  However, the County and District are only arguing that the 9th Circuit decision that channelization of an otherwise “navigable water” somehow changes the entire nature of the system, and the interpretation and application of the Clean Water Act.  This, on its fact appears to be inconsistent with both the Rapanos and Miccosukee decisions.

What does this mean to you?

This case has far-reaching implications, for all states and municipalities within those states.   The County and District’s policy argument is that, “[virtually every major metropolitan area in the country borders a navigable water of the United States and many are subject to the MS4 permitting requirements.  Municipalities across the country have modified traditional waters through channelization.  By its nature, flood and stormwater control requires advance planning and a massive commitment of public funds and resources.  It is vital that local entities be able to assess sooner, rather than later, potential obligations stemming from efforts to alter adjoining rivers, lakes or streams as part of basic flood and stormwater control.” (Petition for Writ of Certiorari (October 11, 2011)).

If this case is upheld, it will radically alter the way the Clean Water act is applied to MS4’s, specifically MS4s that consist of both man-made and naturally occurring flow-ways.  If upheld, the case will cause ongoing confusion over the definition of a wetland, and if and when an NPDES permit is actually required for various transfers of water and/or operation of a MS4.

Conclusion

As of the writing of this article, the Supreme Court had requested the U.S. Solicitor General to submit comments to the Court giving its position regarding Los Angeles County’s Petition for Certiorari.  The matter has been fully briefed by Los Angeles county and the NRDC, and several Amicus Curiae (friends of the court) briefs had been filed, including briefs prepared by the Florida Stormwater Association, the California Stormwater Quality Association, the National Association of Flood and Stormwater Management Agency, and the League of California Cities.

Julie Jennison is an attorney at West Palm Beach office of Lewis, Longman & Walker, P.A. Her practice focuses on environmental, land use, water resources, sustainability, administrative and real estate law. She represents her clients before local, state and federal agencies on wetland and water supply permitting, Comprehensive Everglades Restoration Plan implementation, and coastal zone issues. She also represents clients on federal and state rule making and legislative issues, involving wetlands, water resource development, water quality, and water supply.

 

Lakewood Ranch Landscape Contract Protest Heard

Published in the Lakewood Ranch Herald Wednesday, Jan. 25, 2012

By JAMES A. JONES JR. – jajones1@bradenton.com

LAKEWOOD RANCH — Hearing officer Chip Rice heard more than five hours of testimony Tuesday in Garden Leaders’ protest of a $932,796 landscape maintenance contract awarded to Down to Earth lawn care. Garden Leaders, which previously held the contract, attempted to show that the contract was improperly awarded to Down to Earth. But all five Lakewood Ranch staff members who served on the bid evaluation committee said under oath they received no pressure or instructions from any supervisor or district official to select one bidder over another. Furthermore, members of the committee said they completed their evaluations separately and did not know how the others had voted until results were tabulated.

The protest was filed in December against District 1 (Summerfield-Riverwalk), District 4 (Greenbrook) and District 5 (Country Club). The new contract with Down to Earth represents a savings of $259,418 a year over the old contract, Lakewood Ranch officials have previously said. The hearing started Tuesday with the presumption that the district boards acted in good faith and acted on information available to them, Rice told Morgan Bentley, a Sarasota attorney representing Garden Leaders. Bentley would have to overcome that presumption to succeed, adding that the burden of proof was on the side making the protest, Rice said. Tracie Hunt, the first witness called to testify, was a member of the contract evaluation committee.

No bidder objected to the way the request for proposal for bids was written, no one attempted to influence her recommendations on contract award, and members of the committee stayed in their “cone of silence” during deliberations, Hunt said. After being closely questioned by Bentley and by two attorneys representing the districts, Rice told the districts’ legal counsels, Tony Abate and Hunter Carroll, “Ms. Hunt did an excellent job for your side.”

Ryan Heise, operations director for Lakewood Ranch, was the next to take the stand. Was there at anytime an implicit or explicit instruction to influence the evaluation of bids? Carroll asked. “No,” Heise responded. Asked about the quality of Garden Leaders’ work at Lakewood Ranch, Heise said it was “fair” in the first year of the contract, “good” in the second and “excellent” in the third. But there was strife between OLM, the company that had been hired to evaluate the quality of landscape work, and Garden Leaders, Heise said.

“It was challenging,” Heise said, and eventually Lakewood Ranch terminated its agreement with OLM. Joe Morelo, chief executive officer for Garden Leaders, was also called to testify. Bentley asked Morelo how his relationship with Lakewood Ranch had been. “Excellent,” Morelo responded. Morelo said he had investigated the bids of his competitors for the Lakewood Ranch landscape contract and found that Down to Earth had been involved in litigation when its bid indicated there was none.

When Rice asked Morelo if he knew how those lawsuits turned out, Morelo said that he didn’t know. Mike Mosler, a vice president for Down to Earth, took the stand and was cross examined about Morelo’s testimony, and allegations that his company lacked workers compensation coverage and pest control licenses.

In 2009, Down to Earth took a fertilizer supplier to court after defective product burned sod at another community, Mosler said. Down to Earth replaced the sod at a cost of more than $900,0o0 — at no expense to residents — and then sought compensation from the vender, Mosler said.

Another lawsuit cited by Morelo was filed after the bid for the Lakewood Ranch project was submitted, Mosler said. Mosler was able to provide proof that his company had current workers comp coverage and had staff licensed to handle pest control. Also asked about whether Down to Earth has the manpower, the equipment and the experience to handle the Lakewood Ranch job, Mosler said his company is in good shape to handle its new contract.

Last to take the stand was Eva Rey, executive director of the Lakewood Ranch Inter-District Authority. Rey flatly rejected the suggestion that she attempted to influence award of the contract to any company.

Although hearing proceedings adjourned Tuesday afternoon, Rice said he will let the hearing stay open. Ten days after they receive transcripts of Tuesday’s hearing, legal counsel can submit recommended orders. Should anyone come upon “the smoking gun,” we’ll reopen the hearing, Rice said. Rice is expected to released his finding in about one month.

James A. Jones Jr., East Manatee editor, can be contacted at 941-745-7021.

 

Environmental lawyer heads ‘amazing organization’: Chamber of Commerce of Palm Beaches

By Carolyn Dipaolo, Business Editor

Published in the Palm Beach Post – Sunday, Feb. 26, 2012

Click Here to read the article online.

She may tell you that her life is not as glamorous as a television lawyer’s, but Michelle Diffenderfer’s day includes managing a law office, mentoring young women, and setting the course for the Chamber of Commerce of the Palm Beaches. Diffenderfer is executive shareholder at Lewis, Longman & Walker P.A. in West Palm Beach. She also is a founding member of Girls II Women, a nonprofit organization dedicated to mentoring middle school girls in Pahokee, Belle Glade and West Palm Beach.

The chamber has a busy year ahead with municipal elections, community issues and emerging business opportunities to weigh in on. “The chamber is an amazing organization,” Diffenderfer said last week. “We have so many different business owners from different parts of Palm Beach County.”

Age: 42.

Hometown: West Palm Beach.

Education: Law degree from the University of Miami School of Law (1994); Bachelor of Arts from Brown University (1990).

Family: Husband, Bob, who is also one of my law partners; son, Charlie; two daughters, Hope and Lily.

About your company: We are an environmental boutique law firm. Our motto is “See things differently.” The West Palm Beach office has 12 lawyers and is one of four offices the firm has in Florida. We represent several local governments around the state, and many business and farming clients with such issues as water or environmental permitting.

First paying job and what you learned from it: I was a math tutor in college for high school students. I learned infinite patience. First break in the business: I started out here as a brand-new baby lawyer after clerking in the summer of 1994. The first project I ever worked on, summarizing the key components of hundreds of pages of Everglades and environmental regulation that the legislature had just adopted in 1994, is still something that clients call with questions about.

How your business has changed: Environmental regulation has become a lot stricter and more cumbersome. But also, in those 17 years, especially in South Florida, we’ve seen a very big change in the nature and scope of development. We’ve gone from almost equal services to private and public clients to having a lot more public clients. There are fewer condos and golf courses, more investment in roadways, airports and ports. Thankfully, government is still investing in our infrastructure.

Best business book you ever read: The Seven Habits of Highly Effective People by Stephen R. Covey.

Best piece of business advice you ever received: It sounds funny, but one of the first pieces of advice I received was “Keep close to your enemies.” Especially in the environmental arena, there are a lot of third-party interests that may challenge your client’s project or interests. It’s more important to get to know and truly understand the other point of view. If you can listen long enough to find out what their interests are, they may not be so far apart from finding a solution that will also help your client achieve its goals.

What you tell young people about your business: I work with Girls II Women, a mentoring group that I co-founded. On Take Your Child to Work Day, we pair them up with professional women all over the county. Many of them want to be lawyers or models, or both. The lawyers-to-be follow me around, and they’re heartbroken that it’s not like it is on television. They can’t believe that we are not all millionaires with constant excitement. I have to remind them that they will have four years of college and three years of law school. And then billable hours. It’s not like The Good Wife. It is so not L.A. Law.

Are they ever inspired by what they see? I think it is a real sobering experience, which is what we are trying to provide for that age group. I think true inspiration doesn’t come until they’re law clerks. Then they are committed.

Many successful people learn from failure. Do you have a failure you can share and what you learned from it? The biggest failure I’ve had was due to a miscommunication. Reacting too quickly with anger or frustration instead of taking the time to understand where the other side is coming from is always a mistake. No matter how wrong you believe they are, and how justified you think you may be, do not respond in the same way. You’ll always regret it. Sometimes for years to come.

What drives your work with the Chamber of Commerce of the Palm Beaches?

My firm has had a long relationship with the chamber. They first reached out to me when I became a shareholder in our firm, and since I was a woman business owner, the chamber leaders were excited to continue to diversify their board leadership. I started as a board member around eight years ago and then came onto the executive committee, serving as general counsel for a few years before taking the steps to chair. It’s been really exciting. It keeps me very busy. Chamber CEO Dennis Grady and his staff are amazing and make my job easy. We have a lot of different ways to get our members together. We have 30-plus business people on the board, which meets monthly. We have monthly breakfasts and networking receptions for our at-large membership. We have some members who, for them, the relationships at the CEO level are most attractive. We provide that collegiality for our trustee members and we host monthly trustee lunches with special speakers. A lot of our members are interested in sales and marketing. We hold special networking and skills training events for them. We’re a voice for the members in our community, speaking out about budget and other issues. Every project that comes to town comes before our board. It’s pretty exciting for a business owner to have that kind of information about what’s new and what’s coming.

What is ahead for the chamber this year?

The big issues for the chamber this year are the water issues. We’re trying to be the business sounding board on drought planning, water quality, the inherent challenges of a surface-water system.

We’re excited that the city is hosting the Congress of New Urbanism in May. The chamber is happy to play a role in that conference, which will shine a light on our area.

Of course, there are also a few important elections this year in which we will play an informational role. We’re making sure that we bring the candidates in to speak to our membership and to learn about our members’ key issues.

What do you see ahead for Palm Beach County?

I think we’re at an exciting time. Hopefully, we’re at the end of this three-year downturn. We’re in the southern part of Florida and expect to get some of the new growth that is already happening in Miami. From the port perspective – with the expansion of the Panama Canal in 2014 – we’re really hoping that the area around and inland from the Port of Palm Beach can be a place for some of the big distributors to unload and reload. We’re a perfect location with affordable, available land for big wholesale distributors to develop and operate. I see a port opportunity, which should lead to more jobs and investment. I’m also looking forward to the impact of the Digital Domain campus and FSU film school, some filling in of the condos that have been built, and the development of land all over the county that is sitting here, waiting.

Power lunch spot: Pistache in West Palm Beach.

Where we’d find you when you’re not at the office: In my car (my second office).

Favorite smartphone app: The Chamber of the Palm Beaches app, followed by The Palm Beach Post app.

What is the most important trait you look for when hiring? Energy, a positive attitude and a smile.

 

Spotlight on Bradenton

Lewis, Longman & Walker’s Bradenton Office represents numerous matters relating to Ports, Airports & Infrastructure, Civil Litigation & Appeals, Land Use, Local Government & Special Districts and Legislative & Governmental Affairs. Let’s take a closer look at the attorneys in this office:

Kevin Hennessy

Mr. Hennessy’s practice focuses on administrative, environmental, governmental and land use law, with particular experience in litigation in those areas of law. He is a founding member of LLW and  has over 25 years of experience representing clients in litigation and negotiation of environmental permit and enforcement issues, land development, property rights, local government issues, coastal construction matters, water rights, wetland issues, hazardous waste and contamination issues, condemnation and eminent domain.

Mr. Hennessy is an AV Rated attorney, a member of the American Bar Association, Section of Environment, Energy and Resources and the Florida Bar Association, Environmental and Land Use Law Section.  He is also an alumni of the Florida Natural Resource Leadership Institute.

Mr. Hennessy is active in his community as a member of the Manatee County Bar Association, Manatee County Chamber of Commerce, Green Business Initiative Committee, Lakewood Ranch Business Alliance, and the Manatee County School Board Sales Tax Accountability Committee.

 

Jennifer Cowan

Ms. Cowan’s practice focuses on local government, land use, and litigation.  Ms. Cowan represents local governments, special districts, and Community Development Districts (CDDs) in matters concerning annexations, interlocal agreements, procurement, contract management, construction contracting, ethics issues and public records, Sunshine Law, including civil litigation and appellate representation involving such matters.  Ms. Cowan also assists private and public clients in matters before the Florida Department of Community Affairs and various county and municipal governments concerning Development of Regional Impacts (DRIs), Notices of Proposed Change (NOPCs), comprehensive plan amendments, school and transportation concurrency matters, zoning issues, impact fees reimbursements and disputes, wetland permitting and enforcement actions and development of CDDs.

Ms. Cowan currently serves as a member of the City of Gulfport’s Planning and Zoning Board and as a Trustee to the Arthur Family Foundation.

 

LLW Part of Team That Made the Fort Lauderdale Airport’s New Runway Expansion Project Possible

On January 23rd, officials broke ground on Fort Lauderdale-Hollywood International Airport’s new runway expansion project. The $791 million project, scheduled to open in September 2014, will handle 450,000 takeoffs and landings every year. The Fort Lauderdale-Hollywood International Airport is the 20th largest and one of the fastest growing airports in the country and this project will help accommodate current growth and create additional capacity for future growth. Lewis, Longman & Walker attorneys Robert Diffenderfer and Michelle Diffenderfer were part of the team that assisted in the litigation, environmental and land use permitting and noise mitigation program development that made this project possible.

 

Firm News

  • Lori Killinger will present a legislative update at the St. Johns County Chamber of Commerce Economic Development Council Quarterly Breakfast, April 5, 2012 in St. Augustine, Florida.
  • Julia Jennison moderated a panel titled “South Florida Environmental and Land Use Law Hot Topics – Recent Developments” at Nova Southeastern University in Ft. Lauderdale on March 23, 2012.
  • Michelle Diffenderfer presented a “Diversity Session for Law Students” at the Palm Beach County Bar Association’s Bench Bar Conference, March 9, 2012 in West Palm Beach, FL. Click Here for more information.
  • Kevin Hennessy presented “Extreme Environmental People Skills” at the Florida Airports Council’s Environmental, Noise Abatement and Community Affairs Specialty Conference, March 6, 2012 in Lake Buena Vista, FL.