2013 Fall Newsletter

Volume 14, Issue 4

In This Issue:

Join Us Online!

 

John L. McWilliams Joins  Lewis, Longman & Walker, P.A.

Lewis, Longman & Walker, P.A., is pleased to announce that John L. McWilliams has joined the firm’s Jacksonville office as Of Counsel.

Prior to joining Lewis, Longman & Walker, Mr. McWilliams served a temporary appointment as an Attorney Fellow in the Office of Municipal Securities at the Securities and Exchange Commission, Washington, D.C.  Prior to that, he was a shareholder in the Jacksonville firm, Livermore, Freeman & McWilliams, P.A. Mr. McWilliams has more than 35 years of experience practicing public finance law in Florida.  He has represented numerous cities, counties, school districts, authorities, agencies, special districts and the state of Florida as bond counsel and disclosure counsel for general purpose financings and financings for water, sewer and wastewater utilities, transportation, education, community redevelopment, health care, parking and sports facilities.  He has also served as underwriter’s counsel to numerous investment banks and as bank counsel and trustee’s counsel to commercial banks in public finance transactions.

An active member of The Florida Bar, Mr. McWilliams received his Juris Doctor from Seton Hall University, Newark, New Jersey.  Mr. McWilliams has been AV-rated by Martindale-Hubbell for more than 30 consecutive years and holds its “AV Preeminent” Peer Review rating.

Mr. McWilliams has been a member of the National Association of Bond Lawyers for more than 35 years.  He is a Fellow of the American College of Bond Counsel and recently completed a second two-year term on its Board of Directors.  He can be reached at jmcwilliams@llw-law.com or at (904) 353-6410.

 

Tara W. Duhy Recognized as a Rising Star by the Daily Business Review

Lewis, Longman & Walker Shareholder Tara W. Duhy was recently selected as a Rising Star by the Daily Business Review.  The Daily Business Review Rising Stars program recognizes the region’s 40 most promising lawyers under the age of 40.  The Rising Stars honor recognizes lawyers who have wielded influence in their practice areas in South Florida and beyond.  Ms. Duhy was chosen from a slate of more than 125 nominated attorneys.  Profiles of Ms. Duhy and the other Rising Stars were featured in the Daily Business Review special section on September 18, 2013.  To learn more, please visit www.dailybusinessreview.com.

Ms. Duhy practices in the areas of natural resources, land use and sustainability law and policy, including transportation planning. 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. Ms. Duhy also provides general representation of local governments and special districts and has experience in civil and administrative litigation.  Ms. Duhy serves on the Board of Directors for Easter Seals Florida, Inc., a non-profit organization that provides services, education, outreach, and advocacy so that people with disabilities and special needs can live, learn, work and play in their communities.

 

The Confederated Salish and Kootenai Tribes Fight for Quantified Federal Water Rights in Montana: A Contentious History

By Stephen A. Walker

This year the Confederated Salish and Kootenai Tribes (CSKT) hoped they would finally quantify their federal water rights after decades of legal and political battles. The CSKT, the federal government, and the state of Montana were on the precipice of entering into a Water Rights Compatt that would quantify the CSKT’s right to waters on and off the Flathead Reservation in Montana. The CSKT’s water rights have been considered complicated because the CSKT members who reside on the Flathead Reservation are outnumbered by nonnative residents and because the Hellgate Treaty that established the Flathead Reservation provides the tribe access to waters located beyond boundaries of the reservation. Unfortunately, in April 2013 Republicans in the Montana State Legislature blocked several bills that would have ratified the Water Rights Compact. As a result, the CSKT, the state of Montana, local landowners, and the federal government have years of costly litigation ahead of them.

HISTORY OF THE CSKT AND THE FLATHEAD RESERVATION

The CSKT comprises the Bitterroot Salish, the Pend d’Oreille, and the Kootenai tribes (www.cskt.org/). The CSKT ancestors’ aboriginal lands were located in what is now western Montana, portions of Idaho, Wyoming, and British Columbia and exceeded 20 million acres. On July 16, 1855, the Hellgate Treaty—ratified by the US Senate and signed by President Buchanan Apr. 18, 1859—established the 1.3 million-acre Flathead Reservation (Treaty of Hellgate, 12 Stat. 975, 976). The reservation, located in northwest Montana, spans four counties; Lake, Sanders, Missoula, and Flathead.

Today, nonnative CSKT residents outnumber the CSKT members on the reservation by an estimated margin of 2 to 1 (Helena Independent Record, 2011). This unfortunate state of affairs occurred when the Dawes Severalty Act of 1887 (24 Stat. 388, ch. 119, 25 USCA 331, Acts of the 49th Congress, Second Session; enacted Feb. 8, 1887) was extended to the Flathead Reservation through the1904 Allotment Act (H.R. 12231, Public, No. 159, 33 Stat., 302, 58th Congress, Second Session). The Dawes Act, named after Senator Henry Laurens Dawes from Massachusetts, allowed lands previously protected in trust for Indians (in the parlance of the day) to be surveyed, assigned, and owned by individual Indians directly rather than in trust for the benefit of a tribe as a whole. Once land had been owned by an Indian for at least 25 years, the land could be forever alienated by the Indian owner and could be transferred to third parties.

 

LLW Brings GIS Capabilities In-house

By: Seth C. Behn, AICP

At Lewis, Longman & Walker, the motto See Things Differently is more than just a slogan.  Evidence of this can be found in our recent investment in the hardware and software necessary to analyze geographic information data.  This new tool is quickly proving to be valuable in assisting clients on complicated land use and environmental permitting matters.

Geographic Information Systems, or “GIS”, allows for the analysis and display of data that has a geographic element.  Most people today use a Global Positioning System, or “GPS,” on a daily basis to operate everything from the navigation system in their cars to the apps on their smartphones that direct them to the nearest Starbucks.  GIS has significantly greater capabilities and can incorporate a much broader range of data, including census numbers, zoning information, property boundaries, and environmentally sensitive areas.  This information can then be presented graphically, in a manner tailored to address our clients’ and attorneys’ needs.

Almost everything we do at LLW includes a real property component, whether it’s land development, environmental permitting, working with special districts, or real estate transactions.  In the past few months, LLW attorneys have begun advancing their clients’ matters using the GIS platform.  This work has included:

  • Using historic aerials to track development sequences against State submerged land ownership claims;
  • Digitizing a series of plats to create a comprehensive overview of ownership, easements, and development patterns;
  • Creating regional maps highlighting our client’s property and nearby conservation areas;
  • Providing analysis of State owned lands being offered for sale to gauge development potential.

These examples are just some of the ways in which GIS can be implemented to help clients resolve their issues.  Virtually every government agency our clients encounter use GIS in its processes.  These agencies are required to make their GIS data available.  This data typically includes permit types and locations, zoning and land use maps, and environmental analysis.  The ability to gather and use this data is a unique advantage for LLW’s clients.

Contact our offices to learn how LLW can help you See Things Differently.

 

Recent Developments in Land Use and Environmental Permitting Case Law

By: Seth C. Behn, AICP

I recently had the pleasure of presenting on a legal panel at the American Planning Association’s annual Florida conference.  The presentation was titled: Where Do Property Rights Fit Into Sustainability?  Recent Developments Affecting Planners.  The panel discussed five recently decided land use cases that have important implications to the land development and environmental permitting fields.  The following is a brief synopsis of those cases.

Galleon Bay Corp. v. Board of Co. Comm. of Monroe County and the State of Florida, 105 So.3d 555(Fla. 2012).

Galleon Bay is a development located in the Florida Keys.  The property developer submitted a subdivision plat consisting of 42 lots to Monroe County for approval.  After various negotiations, a subdivision of 14 lots was approved by the Monroe County Commission in 1991.

Subsequently Monroe County passed a “Rate of Growth Ordinance” or “ROGO.”  The ROGO regulations provided strict limits on how many building permits could be issued, and a lottery process by which the permits would be granted.  Efforts by the Galleon Bay developer to both obtain the permits through the lottery system, as well as to obtain a vested rights determination to avoid the lottery system, proved fruitless.

The Galleon Bay investors brought an inverse condemnation action against the County.  After several rulings both in their favor and against, the ruling handed down this year by the Florida Supreme Court ultimately found for the developer.  The court found that the restrictions on the use of the property, and how the use regulations were interpreted, effectively barred the developer from making any use of his property.  The case was remanded to trial to determine the appropriate compensation for the developer.

Alachua Land Investors v. City of Gainesville, 107 So.3d 1154 (Fla. 1st DCA 2013).

In Alachua Land, the developer was in the midst of building a multi-phase residential subdivision covering 300 acres.   This case concerns the final 127-acre phase, of which 90 acres was to be placed into conservation and the remaining 37 acres was to consist of single-family residences.  During environmental permitting for the property, a third party challenge led to a settlement with the developer, which stated in part: “There shall be no construction or disturbance of the conservation area pre- or post- development.”

In preparing the plats for the final phase, the developer sought to run a utility line through a portion of the conservation area.  Noting the restriction, the City Commission denied the plat.  The developer then filed a complaint, claiming inverse condemnation of their property from the denial of the plat.

The Court here was not persuaded by the developer’s claims.  The court noted that “land use planning is not an all-or-nothing proposition.”  There was evidence here that alternatives to the utilities in the conservation area were available, albeit more costly.  Further, the court noted that the developer had successfully developed the majority of the property, and thus its claims that the City was being unreasonable were unsupported.  Therefore the denial of the plat was appropriate and did not give rise to a taking.

Eight Lewis, Longman & Walker Attorneys Named 2014 Best Lawyers by U.S. News Media Group and Best Lawyers®

Eight Lewis, Longman & Walker attorneys have been selected as 2014 “Best Lawyers” by U.S. News Media Group and Best Lawyers®. Additionally, Anne Longman and Alfred J. Malefatto have been named 2014 Lawyer of the Year, Longman in Environmental Law and Environmental Litigation, and Malefatto in Environmental Law. Below is a list of Lewis, Longman & Walker attorneys that have been named “Best Lawyers”:

  • Anne Longman- Lawyer of the Year 2014 Environmental Law; Environmental Litigation
  • Alfred J. Malefatto- Lawyer of the Year 2014 Environmental Law
  • Stephen A. Walker- Environmental Law, Environmental Litigation
  • Wayne E. Flowers- Environmental Law, Environmental Litigation, Water Law
  • Terry E. Lewis- Environmental Law; Environmental Litigation
  • R. Steven Lewis- Environmental Law; Environmental Litigation
  • James W. Linn- Employee Benefits (ERISA) Law; Employment Management Law
  • Brenna M. Durden- Real Estate Law; Real Estate Litigation, Land Use & Zoning Law

Best Lawyers and Lawyer of the Year rankings are determined by a combination of hard data, peer reviews and client assessments. Rankings are distributed as a standalone publication to 30,000 general counsel and in digital format to 58,000 private practice lawyers worldwide.

Best Lawyers® is the oldest and most respected peer-review publication in the legal profession. The online publication is estimated receive 10 million viewers this year and Best Lawyers has firmly established itself as a premiere legal referral source.

The 2014 edition of The Best Lawyers in America includes 50,178 lawyers covering all 50 states and the District of Columbia and is based on more than 4.3 million detailed evaluations of lawyers by other lawyers. Best Lawyers®lists are excerpted in a wide range of general interest, business and legal publications worldwide, reaching an audience of more than 17 million readers. For more information on “Best Lawyers” rankings, visithttp://www.bestlawyers.com/default.aspx.

LLW Attorney Spotlight: Kathryn B. Rossmell

As an attorney at the West Palm Beach Office of Lewis, Longman & Walker, P.A., Kathryn’s practice focuses on land use, environmental, and natural resources law. She represents public and private clients on natural resources permitting issues, National Environmental Policy Act (NEPA) compliance issues, and practices civil litigation for public and private clients.

Ms. Rossmell is a member of The Florida Bar’s Environmental and Land Use Law Section, City County and Local Government Law Section, and Real Property Probate and Trust Law Section. She is also a member of the Palm Beach County Bar Association’s Young Lawyers Section.

She recently authored “From Tools to Toys – The Gutting of the Infamous Primary Indicators,” that was published in the August 2012 edition of the University of Florida Journal of Law and Public Policy.

Ms. Rossmell earned a Bachelor of Arts degree in Political Science, magna cum laude, from the University of Florida, and her Juris Doctor, cum laude, from the University of Florida, Levin College of Law.  Kathryn joined the firm as an associate in April 2013.

Ms. Rossmell can be reached at krossmell@llw-law.com or at (561) 640-0820.

FIRM NEWS

Wayne Flowers and Sean Alveshire participated in the JAXPORT Charity Golf Tournament hosted by the Jacksonville Port Authority on November 4, 2013 in Jacksonville, Florida.  Proceeds from the Inaugural Charity Golf Tournament were donated to the United Way of Northeast Florida and Community Health Charities of Florida.  The tournament is part of JAXPORT’s annual charity drive to support those in need in the Jacksonville area.  Click here to read more about the Jacksonville Port Authority.

Brenna Durden attended the Florida Redevelopment Association annual conference held October 30, 2013 – November 1, 2013 in Tampa, Florida.  The Florida Redevelopment Association is a non-profit organization committed to assisting Florida professionals and volunteers in community revitalization efforts.  Click here to read more about the Florida Redevelopment Association.

Seth Behn participated in the South Florida GIS Expo, an annual conference sponsored by the Palm Beach Countywide GIS Forum. The South Florida GIS Expo serves as a way to foster collaboration, GIS coordination, networking, education and training for the rapidly expanding professional GIS Community in the South Florida Region.  LLW is a proud sponsor of the event.  Click here to read more about the South Florida GIS Expo.

Steve Walker and Alfred Malefatto attended the South Florida Manufacturers Association (SFMA) Annual Meeting on October 3, 2013 in Coral Springs, Florida.  LLW is a proud sponsor of SFMA.  Click here for more information about SFMA.

Brenna Durden, Wayne Flowers, and Sean Alveshire attended the First Coast Manufacturers Association (FCMA) Summit held October 2-4, 2013 in St. Augustine, Florida.  The three-day event featured presentations, an expo, awards and recreation.  LLW was a proud sponsor of the event.  Click here for more information about FCMA.

Deborah Getzoff attended the 57th Annual Florida Shore & Beach Preservation Association Conference held September 25-27 in Delray Beach, Florida.  LLW was a proud sponsor of the event.

Attorneys from the Jacksonville Office of Lewis, Longman & Walker, P.A. attended the Baker County Chamber of Commerce Annual Banquet on October 1, 2013 in Macclenny, Florida.  Click here for more information about the Baker County Chamber of Commerce.

Seth Behn participated in a panel discussion entitled “Where Do Property Rights Fit into Sustainability? Recent Developments Affecting Planners” at the American Planning Association Florida Conference held September 10-13, 2013 in Orlando, Florida. Click here for more information about the conference.

Wayne Flowers gave a presentation titled “Water Quality and Nutrient Issues” at the 8th Annual Georgia Environmental Conference. The Conference was held August 21-23, 2013 in Jekyll Island, Georgia. Click here for more information about the conference.

Jim Linn participated in a workshop titled “New Mandates – Police and Fire Pension Plans” at the Florida League of Cities Conference. The Florida League of Cities Conference was held August 15-17, 2013 in Orlando, Florida.Click here for more information about the Florida League of Cities Conference.

The Environmental and Land Use Law Section of the Florida Bar (ELULS) Annual Update was held August 8-12, 2013 in Ponte Vedra Beach, Florida. Bob Diffenderfer gave a presentation at the conference titled “Land Use Practice Post-DCA: What are Important State Resources and Facilities and What’s DEO’s Jurisdiction?” LLW was a proud sponsor of the ELULS Annual Update. Click here for more information.