Mike Colosi is a young, self-made tech entrepreneur who recently moved to Florida, drawn by its climate, both weather and taxes. Soon thereafter, he decided to plant permanent roots and in March 2024, he bought a 5.07-plot in a Punta Gorda neighborhood and set out to build a home.
He was especially attracted to the peaceful privacy provided by the abundant trees and foliage growing throughout his property. To preserve as much of the serene nature as possible, he drew up plans to use about an acre or so to build his home—about one-fifth the size of his entire lot—and leave the rest in its natural state.
However, Mike’s dream quickly collided with a major obstacle: the federal and local governments. The Florida scrub jay, the only bird species native to Florida and found only there, is federally protected as a threatened species under the Endangered Species Act and regulated locally under Charlotte County’s Habitat Conservation Plan (HCP).
The County factors the HCP into its land-use decisions, requiring hefty fees to offset supposed impacts of development on scrub jay habitat.
When Mike inquired about a construction permit, the County demanded an exorbitant development fee of nearly $120,000, simply because a scrub jay could nest on his land one day.
To Mike, the County has it completely backward. His property, with its tall pines and dense saw palmetto, is unsuitable for scrub jays in the first place. Even if his land were a suitable habitat, building on a small section would pose a minimal threat to the species.
Mike is perfectly willing to comply with other HCP requirements, such as avoiding land clearing during nesting season and planting native scrub oaks that encourage scrub jays to move in. But the mandatory fee cannot be waived or reduced, and his staunch refusal to pay it has led to a standoff in which the County refuses to approve his scrub jay application and any clearing or building permits.
The County’s fee scheme is arbitrary and illogical. The fees are arranged in tiers based on no apparent mathematical formula and with no consideration for actual development impact or even the presence of scrub jays on the property. Instead, fees seem plucked out of thin air with steep, haphazard increases tied to total acreage, rather than the actual amount of land being developed.
Mike plans to build his house on a small patch of land—yet the County’s fee of nearly $120,000 is based on the whole 5.07-acre parcel. That’s more than twice the fee for a five-acre lot and five times higher than if fees were based on the area impacted by his project—with a fee hike set for 2025.
Charlotte County’s scrub jay fee scheme is an exorbitant ransom for permission to build a home on one’s own land. This is unfair and unconstitutional.
Governments cannot demand fees or land for new construction that are not proportional and directly related to its impact without paying just compensation. As established by the Supreme Court in Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and Koontz v. St. Johns River Water Management District (2013), government demands that go above and beyond are unlawful property takings that require just compensation.
The federal regulation underlying the County’s HCP is also unconstitutional. Regulating a bird species with no commercial or economic value living solely within Florida’s borders exceeds congressional authority under the Commerce and Necessary and Proper Clauses of the Constitution.
After unsuccessful attempts to reason with both County and federal authorities, Mike is now fighting back with a federal lawsuit. Represented at no charge by Pacific Legal Foundation, he is challenging Charlotte County’s permitting scheme as an unconstitutional condition on his right to use and develop his property. His lawsuit also contests the federal government’s overreach in regulating purely intrastate species under the Endangered Species Act.
A win for Mike would not only restore his right to build a home on his own land but also further protect the rights of all Americans who simply want to build a home, business, or other project on their property without facing excessive and arbitrary fees.
What’s At Stake?
- The government can’t hold the right to use your property hostage in order to commandeer your land or extract exorbitant fees. That’s akin to extortion.
- Fees and other conditions must be proportional and directly related to a development’s impact, or the owners are owed just compensation. Charlotte County’s fee is clearly not proportional and hinders property owners from building homes.
- The Constitution doesn’t give the federal government authority to regulate a species found only in one state under the Endangered Species Act.
