By STAFF REPORTS
A recent federal court ruling may have major implications for property owners navigating Endangered Species Act (ESA) restrictions in Florida. In Colosi v. Charlotte County, U.S. Fish and Wildlife Service, et al., the U.S. District Court for the Middle District of Florida denied motions to dismiss filed by both Charlotte County and the U.S. Fish and Wildlife Service (FWS). The decision in September allows plaintiff Michael Colosi’s constitutional and statutory claims to proceed.
According to the court file, Colosi owns a 5.07-acre parcel in Charlotte County, where he wants to build a home. The land lies within habitat for the Florida Scrub-Jay, a threatened species protected under the ESA. Charlotte County administers a regional Habitat Conservation Plan (HCP) and holds a 30-year Incidental Take Permit (ITP) from the FWS, which allows limited impacts to Scrub-Jay habitat in exchange for mitigation funding and land management activities.
To participate in the County’s HCP, property owners must pay a one-time HCP Development Fee, calculated based on total parcel acreage. For Colosi, that fee was $139,440, regardless of how much of his property actually contains Scrub-Jay habitat, according to court documents. He has refused to pay, arguing the fee was an unconstitutional condition on his right to build. The County then declined to approve his permits.
Colosi’s remedy would have been to apply directly to the FWS for an individual ITP — an expensive, months-long process requiring additional mitigation measures such as conservation easements, habitat restoration, or purchasing conservation bank credits valued near $180,000. Instead, he filed suit against both county and federal agencies, alleging violations of the Fifth and Fourteenth Amendments, Article I, Section 8 of the U.S. Constitution and the Administrative Procedure Act.
In its Sept. 22 order, the Court rejected the defendants’ arguments that Colosi’s case should be dismissed for lack of jurisdiction. U.S. District Judge John Steele held that Colosi has standing because he faces a “direct, concrete, and personal” injury. The County’s fee and the FWS’ regulatory framework impose real financial burdens and delay his ability to use his property.
Steele also found that Colosi’s claims are ripe for review because he has already been denied development approval, and not moot, despite the FWS’ later clarification that participation in the County’s HCP is optional.
Importantly, the Court emphasized that forcing a landowner to choose between paying burdensome fees, submitting to an unconstitutional permitting scheme or risking ESA penalties constitutes a sufficient injury for federal review. Quoting Eleventh Circuit precedent, the order stated that “being forced to choose between suffering criminal punishment or giving up a constitutional right is an injury in fact.”
By denying the motions to dismiss, the Court kept alive Colosi’s effort to challenge both Charlotte County’s Scrub-Jay fee and the broader federal permitting process as unconstitutional. The ruling underscores growing legal tensions between species protection mandates and private property rights in Florida’s rapidly developing coastal regions.
The defendants must now respond to the complaint by the end of October. The case is expected to test the limits of local and federal authority under the ESA and could influence how conservation fees are applied in other Florida counties with approved HCPs.
