Fla. Developer Sued by 2 Lakes, 2 Creeks and 1 Marsh
Orange County’s Rights of Nature law will be tested in court for the first time. The bodies of water claim it’s wrong to develop 115 acres of wetlands near Lake Nona.
ORLANDO, Fla. – Wielding for the first time the voter-approved Orange County charter amendment intended to protect county waterways, environmentalists recently sued to stop a developer from filling in 115 acres of wetlands for a mammoth project near Lake Nona.
The lawsuit filed in circuit court was unusual because the plaintiffs include two lakes, two creeks and a marsh.
The case sets up a courtroom showdown between environmental groups and business interests over the legal idea that nature has inalienable rights to exist and flourish, a concept upheld in some foreign countries but as yet untested in U.S. courts.
The lawsuit, which also lists environmental activist Chuck O’Neal and “other affected Orange County waters” as plaintiffs, asks a judge to block the state from issuing dredge and fill permits to developers of a 2,000-acre mixed-use project known as “Meridian Parks Remainder.”
O’Neal said the waterways will be polluted and irreparably harmed if the permits are granted.
Orlando attorney Steven Meyers, who filed the lawsuit and helped draft the charter amendment, said the case is the first enforcement action in the nation using a rights-of-nature concept. “There have been a handful of other cases filed in the United States where supporters tried to validate a similar ordinance, but this is the first time it’s been used to actually try to stop development.”
The case will be watched closely not only in Central Florida but around the state because of the controversial legal theory, said Lee Steinhauer, director of government affairs for the Greater Orlando Builders Association and Apartment Association of Greater Orlando. He opposed the rights-of-nature concept as vague and unconstitutional while serving on the Charter Review Commission.
“I know there’s a lot of eyes on it because obviously the outcome will be significant one way or another,” Steinhauer said.
Steinhauer said he expects an appeal would follow any trial court decision.
The lawsuit names as defendants Beachline South Residential LLC and Noah Valenstein in his role as secretary of the Florida Department of Environmental Protection. Neither responded to requests last week for comment through their representatives.
Beachline South Residential, a land development company, seeks to build partially on wetlands for the project south of State Road 528 and east of State Road 417 in east Orange, according to a permit application first filed with the U.S. Army Corps of Engineers. The site, north of Wewahoottee Road, has been used as a cattle pasture.
The purpose for filling in the wetlands, according to the lawsuit, is “to achieve the desired number of lots” for the project. Valenstein’s agency has authority to grant the permits.
O’Neal, president of Speak Up Wekiva, also known for fighting against the state’s black-bear hunt in 2015, said the legal action was filed under a rights-of-nature-inspired charter provision adopted by Orange County voters last November by a landslide margin.
Appearing on the ballot as “County Charter Question One: Prohibiting pollution of the Wekiva River, the Econlockhatchee River and all other waters of Orange County,” the measure received about 530,000 votes – 89% of the ballots cast on the issue.
According to the lawsuit, the Meridian Parks development plan, if allowed, “violates the right to exist of the Crosby Island Marsh, Lake Hart and Lake Mary Jane by cutting off and/or restricting the sufficient flow of clean water into these protected bodies of water.”
The Florida Native Plant Society, Orange Audubon Society and Sierra Club all oppose the developer’s permit application.
“Destruction of wetlands for ‘non water dependent’ activities such as housing and commercial development pose significant adverse environmental consequences,” Marjorie Holt, chair of Sierra Club’s Central Florida Group, said in an email.
In June, Gov. Ron DeSantis signed into law the Clean Waterways Act, a measure intended to improve water quality across the state and move oversight of septic systems from Florida’s Department of Health to the Department of Environmental Protection. But the new law also contained a “preemption” provision prohibiting local governments from giving legal rights to the environment or allowing lawsuits on behalf of lakes and rivers, as the Orange County charter amendment does.
The Florida Chamber of Commerce, which calls itself the state’s voice of business, decried rights of nature ideas as a “fringe legal philosophy” last year.
Steinhauer said the lawsuit will be a test case, and he doubts it will be successful. “I think there’s a strong possibility it’s going to be preempted or found to be unconstitutional or both,” he said.
O’Neal said the charter amendment provides far more protection for nature and water than the new state law, as it empowers citizens to stop pollution at its source by suing the corporations it believes are responsible.
The lawsuit aims to protect creeks Wilde Cypress Branch and Boggy Branch, Crosby Island Marsh, Lake Hart, Lake Mary Jane and other surrounding ecosystems, including Split Oak Forest, from developmental harm and pollution run-off.
“The placement of dense housing and commercial mini-malls in close proximity to these ecological treasures would make it impossible for all of these water bodies to maintain a healthy ecosystem,” the lawsuit says. “The amount of roadway and rooftop pollutants coupled with the loss of wetlands to accommodate this massive man-made intrusion will essentially destroy the balance that each ecosystem has developed in nature over thousands of years.”
Copyright © 2021 Orlando Sentinel. Distributed by Tribune Content Agency, LLC.