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©2020 Mike Del Ninno

  • Mike Del Ninno

Property Rights? Or is it Property Wrongs?


Like every good citizen, I regularly check out the local government meeting agenda items (come on, I know you do too). Mostly it’s mundane operating items to keep local government running smoothly, but sometimes an agenda item just tickles my fancy.

Item #30 on Volusia County’s March 15th meeting agenda is a prime example.

Apparently someone wants to build a “sweet” residence smack in between state conservation lands. I refer to the build out as “sweet”, mainly because the residence will include a helipad, pool house, guest house and other various cool amenities. Heck, sounds like a “very sweet” deal indeed. I won’t get into all the particulars outlined within the 74 page agenda document, but suffice to say most all issues were apparently worked out with Volusia County. Rock on, dude (I’m hoping for a helicopter ride).

It seems staff had two primary concerns. The first concern revolved around the construction and use of the accessory residential structures (e.g. guesthouse /pool house) prior to the construction of the single-family dwelling. The second concern revolved around the development agreement vesting in perpetuity upon the filing of a building permit application for any structure on the site within seven years, and there is no requirement that the single-family residence ever be built.

The reason this item tickles my fancy is based on my similar experience with Volusia County. Ten years ago I tried to build a simple guesthouse on the back half of my riverfront property. I wanted an accessory structure to provide a place for my, now 93 year old, Mom to visit (it’s always good to plan ahead for elder care). I also wanted to install an editing “suite” to compliment my passion for digital production. The layout was a simple 500 sq. ft. structure with eat-in kitchen, bedroom and general living space. I also wanted to install a wraparound deck to enjoy the fresh air and natural scenery.

Much to my dismay, the structure was never constructed. Even the seven (7) attorneys I consulted couldn’t figure out how to get it done (including the same firm used in this case). At each and every turn, the county continually changed the rules of the game. No Mike, you can’t have a kitchen (Italians always have two kitchens). No Mike, you can’t have a deck. No Mike, 500 sq. ft. is too much space. Oops, Mike, you have to apply for a Small-Scale Amendment (for $3,000). But why are you fighting me tooth and nail on this, I asked?

Apparently, the answer lies within an inter-office Volusia County document written by the Environmental Management Division concerning my case.

And I quote, “Given that the property already contains a house, garage, swimming pool, dock and boathouse, impacts to the remainder of the wetlands and buffers are completely avoidable. Additional impacts, such as a second residential unit, are unnecessary because the owners already have more than reasonable use of their property.”

Thank you, EPA for determining I have more than reasonable use of my property. Although I did build my primary residence within existing setbacks (isn’t that reasonable?).

Times have definitely changed. Apparently, the subjective judgment determining “reasonable use” of property has greatly expanded during the last ten years. Really, a helipad?

Of course, the only one to blame is me. I mean, I could have found that eighth (8th) attorney, spent a fortune (which I don’t have), and fought it all the way to the Supreme Court.

And that brings me to the moral of the story. Is government really there to assist “the people”? Or, simply make the process so frustrating and costly individuals have to give up the fight. It seems government (lest we forget it’s made up of people), creates complicated laws and rules, not to truly protect, but to hide behind. Are we really protecting non-critical wetlands, or are we jealous or envious that someone’s trying to enjoy their rights and liberties in pursuit of their happiness?

Sometimes government oversteps their authority, as is the case with Sackett vs. U.S. EPA. This high profile property rights case is waiting on an opinion from the U.S. Supreme Court. If they get it right, maybe I can get that guesthouse for Mom after all.

#PropertyRights #InLawSuite #VolusiaCounty #EPA