Circuit judge orders Conservancy of Southwest Florida to pay legal costs for other side after losing tussle over rural village
Laura LaydenAfter losing a lawsuit challenging a controversial village planned for rural Collier County, the Conservancy of Southwest Florida has been ordered to pay the other side's legal tab.
Collier Circuit Court Judge Hugh Hayes has ruled the Conservancy must pay the legal fees and costs spent by the developer and the county in defense of Rivergrass, a 1,000-acre master-planned community out east.
The judge has not yet determined how much the Conservancy owes — or should pay.
For that, Hayes will have to see, hear and review more evidence, through more court filings and testimony.
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Collier Enterprises, the project's developer, played the lead role in the defense's case. The company has estimated its attorneys' fees at more than $2.65 million and its other legal costs at more than $410,000, topping $3 million in total.
The county's costs are more modest — with estimated legal fees of about $124,000 and other costs at less than $1,860.
In court filings, Collier Enterprises states its team of attorneys spent more than 7,600 hours litigating the case in a "compressed timeframe," pushed by the Conservancy.
Hourly rates for the company's attorneys ranged from $265 to $625. For clerks and paralegals, they came in at $165 to $175.
In its arguments to the judge, the developer said the Conservancy "hired a large top-tier international law firm to mount its challenge" — Arnold & Porter, with 13 offices worldwide and nearly 1,000 lawyers — and that "no precedent existed" for such a challenge, so it required more legal research, time and money to build a strong case in its defense.
Also, Collier Enterprises described all phases of the litigation as "hotly contested," labeling the Conservancy's opposition as aggressive.
On its end, the developer said the litigation required 10 experts, 25 depositions, mediation, arbitration and finally a trial, all within 14 months of the Conservancy filing its civil suit.
As for the county, court records show its legal counsel spent about 308 hours litigating the case.
The case ended with a 29-page final judgment in favor of the developer and the county.
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"Severe burden"
The Conservancy — one of Southwest Florida's most high-profile conservation groups — expressed disappointment over the judge's decision to make it responsible for its opponents' costs.
"The Conservancy believes that the statute mandating that any party that loses a challenge to a development order pay the opposing party’s attorneys’ fees is unconstitutional. The statute places a severe and unnecessary burden on the public’s right to bring such claims, in violation of due process and the right to petition the government," said Rob Moher, the group's president and CEO.
According to court documents, the Conservancy spent millions of its own money to make its case.
In court filings, Collier Enterprises said the group spent "the majority of a $5 million war chest on its losing effort," and argued if the Conservancy had won it would have surely sought its legal costs from the defendants.
Collier County commissioners approved the development order for Rivergrass by a vote of 3-2 early last year. A few months later, the Conservancy filed its suit against the county, arguing it violated the growth plan.
Collier Enterprises swiftly joined the case in support of the county.
In a company statement, Christian Spilker, president of Collier Enterprises, said: “Our request for attorneys' fees in the Rivergrass lawsuit is consistent with Florida law, and we appreciate the judge’s review and order.”
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The Conservancy said it plans to eventually challenge the order in the Second District Court of Appeal.
The group is already appealing the judge's unfavorable decision on its challenge of Rivergrass — in the same state court.
In that appeal, the Conservancy argued Hayes "declined to hear evidence that Rivergrass will cost Collier County taxpayers millions of dollars, will result in widespread worsening of traffic congestion, and fails to comply with the Collier County Land Development Code."
Last month, Florida's First District Court of Appeal reversed a Walton County trial court decision for "failing to hear similar claims in a challenge to a development order," Moher said.
The Conservancy, he said, "believes that the Second District will likewise reverse the trial court’s ruling on Rivergrass, which would result in the trial court’s ruling on fees also being reversed."
Since the case is on appeal, costs on both sides continue to mount.
Opposing arguments
The Conservancy contends Rivergrass will harm "an extensive amount of environmentally sensitive lands," posing a critical threat to the few endangered Florida panthers left in the wild.
Collier Enterprises has pointed out the land for Rivergrass has been farmed for decades, so it's not pristine — and argued that its village of Rivergrass will preserve nearly three acres of sensitive wetlands, wildlife habitat and other natural ecosystems.for every acre developed, avoiding urban sprawl.
The new village is planned on Oil Well Road, just east of Golden Gates Estates.
The Conservancy based its legal case primarily on the rules governing the Rural Lands Stewardship Area, or RLSA, which are found in the county's Growth Management Plan.
In a nutshell, the group has argued Rivergrass represents the antithesis of what should be built on the rural lands.
The stewardship area encompasses 185,000 acres around Immokalee with the Florida Panther National Wildlife Refuge to the south and the Okaloacoochee Slough State Forest to the north.
Rivergrass was the first village the county commission approved in the RLSA.
After a five-day, non-jury trial in May, Judge Hayes ruled from the bench, finding in favor of the defendants, saying they had "clearly won their case" based on strong arguments, evidence and witnesses.
Based on state and case law, the judge determined the Conservancy could only challenge Rivergrass on use, density, and intensity, limiting its arguments at trial. The Conservancy, he said, failed to show how the village would fall short of — or exceed — what can legally be built in the RLSA.
Since the Rivergrass trial, county commissioners have approved two sister villages planned by Collier Enterprises, named Longwater and Bellmar, as well as greenlighting the developer's town concept, which would join them all.
While the Conservancy opposes the other villages and town as proposed over concerns about their impact on wildlife, the environment and taxpayers, it has not filed any lawsuits over them.
Collier Enterprises has yet to file its town application with the county.
Once filed, the town proposal would require a thorough review and analysis by county staffers and the Planning Commission before returning to county commissioners for a final decision in 2022, or later.