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Threatened with legal fees, group settles rezoning suit

The Coalition for Anti-Urban Sprawl and the Environment wanted to halt development that, it said, would threaten black bears.

By DAN DeWITT
Published February 13, 2005


BROOKSVILLE - Last week Arline Erdrich said the county was using the prospect of legal fees to discourage her environmental group from continuing to fight a rezoning case in court.

"If you put an organization into debt, it's very difficult for it to go forward," said Erdrich, founder of the Coalition for Anti-Urban Sprawl and the Environment.

If that was the county's strategy, it proved to be effective.

On Friday, CAUSE settled a lawsuit that had challenged the rezoning of a 42-acre parcel owned by Hardy Huntley from agricultural/public to commercial.

In exchange, the defendants agreed to no longer seek legal fees from CAUSE.

The suit alleged that in 2003 the county had rezoned the property, which is on the west side of U.S. 19 south of the Wal-Mart Supercenter, without proper review by the state Department of Community Affairs. Development there would threaten the coastal population of Florida black bears, the suit said, and disturb the charm of nearby Aripeka.

Hardy Huntley has announced no plans for the property.

Erdrich said the group members agreed to settle the suit because they were intimidated by the prospect of paying more than $25,000 in legal fees.

Lawyers for the county and Huntley - who joined the suit after it was filed in July 2003 - have a different explanation for why the two sides reached a settlement. They say the suit was invalid. And by continuing to press the case after the court had repeatedly ruled the group had no standing, CAUSE was harassing the developer.

"This is a lawsuit that never should have been brought," said Chief Assistant County Attorney Kurt Hitzemann.

CAUSE members continue to think their arguments are valid, Erdrich said Friday. But they decided to drop their appeal of the case because Circuit Judge Richard Tombrink was scheduled to rule on Monday whether the group would be responsible for the legal fees of the county and the property owner.

The county's bill probably would have been about $2,000, Hitzemann said. But Huntley, who was represented by Brooksville lawyer Tom Hogan Jr., was seeking about $25,000, said Ralf Brookes, who represented CAUSE.

"It has a chilling effect on people being able to bring these suits," Brookes said.

He and Erdrich said it is often an effective tactic because environmental organizations typically have less money than the government agencies and developers they challenge in court.

It is widespread enough that some state legislators intend to bring the issue up in this year's session.

"It's happening all over the state," Brookes said.

Tombrink never ruled on the main issue in CAUSE's suit: whether the county properly rezoned the property.

Instead, he ruled - four times - that neither the group nor two of its members who were also named as plaintiffs, Erdrich and Joe Lemieux, had legal standing in the case.

State law was changed several years ago to restrict residents' rights to challenge comprehensive plan decisions in court. The definition has been further narrowed by court decisions such as Tombrink's, Brookes said.

"In the future, it looks like the only person who can challenge comprehensive plan changes is a direct neighbor," Brookes said.

The first three times Tombrink issued a ruling, he did so "without prejudice," which allowed CAUSE to ask him to reconsider. In November, he denied CAUSE's right to argue the case "with prejudice," which allowed the group to take the matter to a higher court.

CAUSE did that, filing with the 5th District Court of Appeal in Daytona Beach shortly after Tombrink ruled. The county and Huntley countered by seeking legal fees, filing their motion on Feb. 3.

In that filing, Huntley's lawyers said CAUSE offered little new information each time it came before the court: "(CAUSE) merely reorganized the pleading without adding sufficient facts."

Because of that, the motion said, CAUSE's repeated refilings "caused both harassment and delay." The document also said the land had little environmental value because it was previously used as a spray field for a sewage treatment plant.

CAUSE did extract one concession from the county. The county agreed that its Environmentally Sensitive Land Committee would listen "in good faith" to scientific testimony the group had gathered about the land and the bear habitat.

Though the agreement cannot require the county to secure nearby land for wildlife corridors, it may lead to that, Brookes said.

"Hopefully, this will get us in a position to try to work together," Erdrich said.

[Last modified February 13, 2005, 01:07:16]


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