Jrbu BHTJW Busse - Irmgard@t-Online - de Jrbu: The Governor, Easements, ... and Cayo Costa ..

Page 1 of 37
Subj: THE GOVERNOR, EASEMENTS, ... AND CAYO COSTA ...

Date: 3/16/2007 11:19:53 P.M. Eastern Standard Time
From: JRBU
To: mick@broadgreen.plus.com, JERRYR@ACCELERATION.NET, jruzicka@swfla.rr.com, BHTJW
CC: busse.irmgard@t-online.de, JRBU
MS. ARMSTRONG: Item 7, I think we have
11 actually come to an agreement on this issue of
12 statutory way of necessity.
13 This item has been before you several
14 times. The last time we deferred it was about
15 a year ago. Mr. Andress owns several lots in
16 Cayo Costa State Park. They are landlocked and
17 he is entitled to a statutory waive of
18 necessity, and the issue is where that the
19 access should occur.
20 The state's position is that it ought to
21 go across already disturbed roadway and what is
22 actually kind of an ATV trail. He in the past
23 has argued for a way that would go across a
24 totally undisturbed area of land.
25 He is here today with his attorney. I
105
1 thought I would let them speak first because I
2 think we've come to an agreement where that
3 access ought to be.
4 GOVERNOR BUSH: All right. Can you get a map
5 out.
6 MS. ARMSTRONG: Mr. Bill Hyde.
7 CFO GALLAGHER: If you all have agreed, I
8 would like to move the agreement. And if it works
9 out, great; and if it doesn't, then you will have
Sunday, June 07, 2009 AOL: JRBU

Page 2 of 37
10 to come back.
11 MR. HYDE: Well, I think there is a
12 third-party objector that may want to speak
13 against our proposal, so I would like to briefly
14 outline what we are here for today.
15 CFO GALLAGHER: Then we are going to hear
16 from them, too. I am sorry. I am ahead of myself.
17 MR. HYDE: By way of introduction, my name is
18 William Hyde. I am a long-time environmental
19 attorney here in Tallahassee, Florida. And I
20 represent the applicants in this case, Noel and
21 Karen Andress, who are in the audience here today,
22 if they could stand up briefly.
23 GOVERNOR BUSH: Good morning.
24 MR. HYDE: I just wanted to establish the
25 Andress's bona fides in appearing before you
106
1 today.
2 Mr. Andress has personally sold to the
3 state some 26 lots on Cayo Costa Isle at below
4 market prices as part of the state's
5 acquisition on lots of that island. They
6 several years ago also donated to Lee County a
7 4-acre gulf front tract for a public park.
8 They have been in this process for two
9 years almost. They have spent literally
10 thousands of dollars in consultants and
11 attorneys fees trying to work this process out.
12 In fact, we were about to come before you last
13 fall on this easement when we were persuaded by

Page 3 of 37
14 the objectors and by the staff to consider a
15 proposed land swamp for some other lands in
16 Cayo Costa.
17 That did not bear fruit. We did not think
18 we were getting value for value. And we also
19 thought that the lands being proposed had their
20 own access problems. But in any event we were
21 delayed by some five to six months.
22 I think that Ms. Gallagher has stated it
23 very clearly -- not Ms. Gallagher, Eva
24 Armstrong, I apologize. Ms. Armstrong.
25 GOVERNOR BUSH: What did you call her?
107
1 MR. HYDE: You did work for him at one point,
2 didn't you?
3 MS. ARMSTRONG: I did.
4 GOVERNOR BUSH: But I don't think they are
5 married.
6 MR. HYDE: My mistake.
7 We are clearly entitled to some statutory
8 waive of necessity because absent an easement,
9 there is no practical means of access to our
10 property.
11 We have sought a shorter easement of about
12 375 feet, direct east/west easement, that would
13 connect to an existing platted easement. The
14 staff has opposed that for environmental
15 reasons that we don't necessarily think are
16 valid. But we are here today willing to accept
17 the staff's option, which is about, for our

Page 4 of 37
18 practical purposes, about half a mile long.
19 There is one problem with it that I want
20 to bring to your attention. There is a deed
21 restriction on one of the lots. It's lot 30.
22 And lot 30 basically says it can't be used as a
23 way of access to a road. The state's
24 attorneys, that is the DEP attorneys have
25 offered the opinion to me that this is not
108
1 something that would necessarily -- could not
2 create a problem for us.
3 I am not so sure that that's the case. I
4 have asked that if we do get stuck with this
5 particular easement that goes over the platted
6 lot that has this deed restriction, which by
7 the way you own, that we not be required to
8 agree to any attorney's fee reimbursement
9 provision in the easement document itself.
10 Our long-time preference has been our
11 option which is the straight east/west one,
12 it's about 1/6th the length. The staff has
13 said there is environmental objections. We
14 think they are invalid, but we are trying to be
15 conciliatory here, we tried to be conciliatory
16 in the past.
17 We agreed to consider a land swap; it
18 didn't work out.
19 This easement that we have before you
20 today, the staff is proposing for you today, is
21 supported by case statutory law. It's

Page 5 of 37
22 supported by your own consistent policies over
23 the years.
24 And there are some objectors to it, but I
25 consider these objections to be in the nature
109
1 of drawbridge environmentalism. The objectors
2 are other lot owners on Cayo Costa Island who
3 have their own private place in the sun and
4 they want to preserve that private park. And I
5 understand where they are coming from.
6 GOVERNOR BUSH: The American way.
7 MR. HYDE: Yeah, that is the American way
8 these days, but they have leveled some historical
9 and inaccurate charges about my clients.
10 My clients are not big developers; they
11 own two lots on Cayo Costa Island. They sold a
12 lot of lots to the state at below market
13 prices. They donated a 4-acre gulf front tract
14 to Lee County.
15 I think they are entitled to reasonable
16 access and I hope you will agree today. Thank
17 you, unless you have any questions.
18 GOVERNOR BUSH: I don't think so. We have
19 other speakers. We would love to hear from them.
20 MS. ARMSTRONG: Terrell Arline.
21 MR. ARLINE: Good morning, Governor Bush, I
22 am glad to be here.
23 My name is Terrell Arline, I represent a
24 woman named Carol Sellers who, yes, she lives
25 on the island. She will be 90 years old on

Page 6 of 37
110
1 Monday, and she has lived there for 30 years.
2 GOVERNOR BUSH: We wish her a happy birthday.
3 MR. ARLINE: It is her request these
4 easements not be granted and explain to you sort
5 of the background.
6 You've never granted an easement on Cayo
7 Costa. This will be the first one. And I know
8 that you will consider this very carefully.
9 And in a sense what I hope to convince you
10 today is that your decision to authorize either
11 one of these easements makes it easier to
12 develop these properties. And is that a policy
13 that you want to do?
14 And I will explain to you that it's not
15 necessary to grant the easements.
16 Cayo Costa is the largest undeveloped
17 barrier island in Florida. It's located in Lee
18 County on the gulf. It's further from the
19 mainland than most any other barrier island.
20 GOVERNOR BUSH: How far is it from -- I know
21 I have flown over it.
22 MR. ARLINE: It's about three or four miles
23 as the crow files. It's beyond Ucipia, if you've
24 been to Ucipia; it's west of Ucipia. It's about a
25 mile and a half wide, seven miles long. There are
111
1 no homes on the beach right now. There is a park
2 campground on the north end of the island. Pretty
3 significant archaeological and environmental

Page 7 of 37
4 resources.
5 The area that we are talking about is in
6 an area of the island that is pristine and
7 undeveloped. Cayo Costa has no bridges, no
8 public roads, no water, no sewer, no
9 electricity, no paved roads, it's a COBRA
10 island.
11 GOVERNOR BUSH: What?
12 MR. ARLINE: Coastal Barrier Resources Act
13 Island, if there ever was one. And the state has
14 had a long commitment in Cayo Costa of making it a
15 state park. Since the '70s, the state has spent
16 $27 million under Environmental Endangered Lands
17 Program, the Coral Program and now Forever
18 Florida, which has resulted in about 97 percent of
19 the island being acquired now in state ownership.
20 There is 176 privately-owned parcels out there.
21 We believe that this easement, either one
22 of them, could potentially add 10 residences to
23 the island.
24 This is the part of the island that we are
25 talking about, this lot here is Mr. Andress'.
112
1 This lot is Mr. Andress' partners, his name is
2 McKenzie. This lot is owned by -- Mr. Andress
3 is a realtor, and he arranged to sell -- to
4 acquire this lot to a fellow named Mr. Floyd,
5 who is his client, and we believe he has a
6 listing on one of these two lots here.
7 There is nothing in this part of the

Page 8 of 37
8 island. You can see it's just an overlay of
9 lot, paper plat over the terrain and there is
10 nothing there.
11 GOVERNOR BUSH: Are there any houses on the
12 island now?
13 MR. ARLINE: There of 25 houses scattered
14 around the entire island. Most of them tend to be
15 at the south end of the island right near Captiva
16 Island, the pass down there. There is seven --
17 some of them are not really houses, they are
18 really structures, but some are houses in the
19 middle of the island to the north of here.
20 But in this part of the island -- this is
21 about five or 600 acres that is untouched, and
22 we think that your decision here could lead to
23 a house on the beach and some of these other
24 homes being added to the middle of the site.
25 Mr. Andress, I attached in my materials
113
1 here a listing in which he is proposing to sell
2 one of the lots on Cayo Costa fronting the gulf
3 for $285,000. So there is serious money
4 involved in this, and I think this is what is
5 probably going on behind this easement request.
6 Ms. Sellers sold her land to the state
7 years ago, she moved out there 30 years ago
8 with her husband.
9 GOVERNOR BUSH: Where is her home?
10 MR. ARLINE: You can just barely see it.
11 It's up here in the subdivision to the north,

Page 9 of 37
12 which is called LaCosta Isle; it's back against a
13 little canal that's there. She took back a life
14 estate, and it is her request that you not grant
15 the easement.
16 Let me give you two reasons why you
17 shouldn't.
18 One, is that I believe -- and this opinion
19 is also that Mr. Andress' attorney -- not
20 Mr. Hyde, but another attorney name Ken
21 Jones -- there already is an easement for all
22 of these lots in this subdivision that's called
23 Isle of Grove.
24 First, let me locate you a space if I
25 might. This is the Island Grove subdivision,
114
1 Mr. Andress' lot is about right here. This is
2 a subdivision to the north, it's just a paper
3 plat, but you can see the lots and this is
4 Carol Sellers' lot is over here.
5 So I am going to show you a blow up of
6 this Island Grove subdivision. This is the
7 plat for Island Grove subdivision. And it
8 is -- you can tell by looking at the legal
9 description for all the lots, each lot has a
10 30-foot easement on the north side or south of
11 the parcel, so there is roads, paper roads
12 running through the entire subdivision. That's
13 how it's platted.
14 And there is an easement here for 66,
15 30-foot wide easement, and the survey for

Page 10 of 37
16 Island Grove subdivision shows this line
17 extends to the beach.
18 And I have previously provided your staff
19 with the opinion of Mr. Jones which attaches
20 some sales brochures from the '50s when the
21 subdivision was originally sold, showing that
22 that, in fact, was the access point to the
23 beach and there was a dock and there was going
24 to be a beach and beach house and all this
25 stuff.
115
1 The point of that is that the law on
2 easements by necessity are that you only give
3 them if there is no other access by common law
4 implication or by expressed grant.
5 There is an expressed grant in this
6 subdivision. And I think that is enough to say
7 we don't have to give you an easement. Now
8 what has been requested --
9 CFO GALLAGHER: I can see how lots 62, 4, 5
10 6, 71 and 72 and 71A -- is there something moving
11 back and forth this way, all the way at the end,
12 far end or where?
13 MR. ARLINE: Let me explain to you.
14 Essentially what you have got is all the lots in
15 the subdivision have a 30-foot easement either on
16 the north or south lot, so there is roads running
17 east and west. They connect to this long skinny
18 rectangle here, which the state bought and paid
19 $500,000 for this rectangle, and it is an

Page 11 of 37
20 easement. So essentially the way this sub--
21 developer of the --
22 CFO GALLAGHER: You are telling me the state
23 went and bought the road, and we did it to make it
24 an easement?
25 MR. ARLINE: It was an easement.
116
1 CFO GALLAGHER: So now we own it, and it's
2 not an easement any more.
3 MR. ARLINE: I think it still is an easement
4 because it was an easement and the property owners
5 in this subdivision, including Mr. Andress, have
6 the same rights that they had previously; even
7 though you are the owner, you didn't extinguish
8 their easement rights.
9 CFO GALLAGHER: Has it got a road on it?
10 MR. ARLINE: No, it's a paper road.
11 CFO GALLAGHER: Does anybody know why we
12 bought this thing, why we bought one long strip?
13 When did we do that?
14 MR. ARLINE: You acquired several pieces.
15 CFO GALLAGHER: From who? The original
16 developer?
17 MR. ARLINE: Various property owners. What
18 you see here in the Island Grove, the yellow dots
19 are the only private parcels left; you bought
20 everything else. When you bought a piece of
21 property that had an easement on it, you're
22 subject to the rights of the easement.
23 CFO GALLAGHER: So your argument at this

Page 12 of 37
24 point, these are the only ones that are owned.
25 Where is our applicant's property?
117
1 MR. ARLINE: Right here.
2 CFO GALLAGHER: So your argument is that he
3 walks out his -- he walks down south on his
4 property -- I don't know what's north and south
5 here -- and he heads down there to the state land,
6 and he goes down the road there, makes a left and
7 heads on out to a thing; is there a dock out
8 there?
9 MR. ARLINE: No.
10 CFO GALLAGHER: You feel that he has a right
11 to build a dock out there?
12 MR. ARLINE: No, I don't.
13 CFO GALLAGHER: Who gets to build one out
14 there?
15 MR. ARLINE: I don't think the easement by
16 necessity on an island means you have a right to a
17 dock. I think it means you can get to the water.
18 GOVERNOR BUSH: Can we get the department
19 back?
20 CFO GALLAGHER: Are you going to swim over or
21 what?
22 MR. ARLINE: The statute that you are
23 operating under speaks to ferries. Actually
24 that's how people are brought back and forth, they
25 are dropped off right on the beach.
118
1 CFO GALLAGHER: A ferry with a front end that

Page 13 of 37
2 drops down and let's you off on the beach?
3 MR. ARLINE: The boats will drive up and
4 allow people to get off and on. Now there is a
5 dock to the north, up here, that is, to be honest,
6 there is a canal right here; Mr. Andress has an
7 easement agreement with the owner of that dock to
8 use it personally for himself. Mr. Andress, in
9 fact, owns --
10 CFO GALLAGHER: Slide that down a little bit.
11 MR. ARLINE: There is a canal right here
12 called Sellers Canal, and there is a private dock
13 in there. Mr. Andress has an agreement with the
14 property owner to use that dock. It's personal to
15 him, and Mr. Andress, for point of clarification,
16 owns that lot.
17 GOVERNOR BUSH: Ms. Gallagher, can you --
18 MS. ARMSTRONG: Emphatically, no.
19 GOVERNOR BUSH: What is the department's
20 position regarding the contention that there is
21 already an existing easement?
22 MS. ARMSTRONG: The one that he is referring
23 to --
24 GOVERNOR BUSH: The first --
25 MS. ARMSTRONG: Down here, there is no
119
1 easement; it does not exist. It was a line on a
2 sales brochure and our title staff says there is
3 no easement down there.
4 GOVERNOR BUSH: Okay.
5 CFO GALLAGHER: Was there an easement down in

Page 14 of 37
6 the other property we bought?
7 GOVERNOR BUSH: The one we bought for
8 500,000?
9 CFO GALLAGHER: Yeah, is that an easement?
10 What's our staff say on that?
11 GOVERNOR BUSH: The long --
12 MS. ARMSTRONG: Yes, the other areas we can,
13 in fact, we do have easements on. The other
14 easements that are in place, we do have. We don't
15 distinguish --
16 CFO GALLAGHER: The only one is that one that
17 does go down to lot 66; it just doesn't go further
18 than that, are you saying? It's got to be behind
19 66?
20 MS. ARMSTRONG: Correct. I am looking at the
21 numbers here.
22 GOVERNOR BUSH: Look at the map.
23 CFO GALLAGHER: Look at your map on the
24 screen.
25 MS. ARMSTRONG: Right. It just doesn't go
120
1 outside of that to the water. They clearly made
2 the distinction between the lots on paper inside
3 and getting to the edge of the water. For
4 whatever reason, they did not, when they platted
5 it, they didn't take it to the water.
6 CFO GALLAGHER: Who is they?
7 MS. ARMSTRONG: The original developer who
8 platted those lots.
9 CFO GALLAGHER: They platted, but it's not

Page 15 of 37
10 recorded?
11 MS. ARMSTRONG: Correct.
12 CFO GALLAGHER: So you are saying -- all it
13 means is they did or didn't draw some lines there
14 at this point.
15 MS. ARMSTRONG: Correct, there is no legal
16 easement. He has it come in for a right of
17 access.
18 CFO GALLAGHER: Somebody says they do have
19 lines there, and you are saying they don't.
20 MS. ARMSTRONG: I am saying -- I am telling
21 you Mr. Arline is incorrect in his assertion that
22 there is an easement there.
23 CFO GALLAGHER: Okay.
24 GOVERNOR BUSH: Eva, the purchase of that --
25 this is a little off the beat and path, but the
121
1 purchase of an easement, the 500,000-dollar
2 purchase of a long skinny piece of property that
3 was an easement, when we buy easements that we
4 don't want them to -- I assume the strategy here
5 is to turn as much of this -- for the state to
6 own, to operate a state park here?
7 MS. ARMSTRONG: Correct.
8 GOVERNOR BUSH: So when we buy an easement,
9 don't we extinguish-- I am confused about how --
10 why would we keep that easement available to
11 property owners as a matter of course? Wouldn't
12 it be part of the strategy to --
13 MS. ARMSTRONG: -- extinguish them when we

Page 16 of 37
14 don't need them?
15 GOVERNOR BUSH: Why do we buy it? If it's
16 going to be an easement, why would we need to buy
17 it?
18 MS. ARMSTRONG: Well, when we go in to buy a
19 large piece of property like this, if we are the
20 owner, we will extinguish whatever we don't need.
21 For example, for Southern Goldengate Estates,
22 think of those road, right; as we are getting the
23 public out of there, we'll get rid of those roads.
24 GOVERNOR BUSH: In this case we have private
25 property owners; but is the intention to buy the
122
1 entire island?
2 MS. ARMSTRONG: That is our goal. We have
3 not been totally successful in buying. You see
4 the map; there are owners in there. Until you get
5 rid of all those other owners, we would not go
6 after extinguishing all those roads.
7 Now these are not publicly dedicated
8 roads. So there is not something for us really
9 to extinguish. They are coming into us and
10 saying, I own property here; you own everything
11 around it. I have a statutory right to get to
12 my property. So that's a little different from
13 a public road.
14 CFO GALLAGHER: You want to use the one
15 that's already established as opposed to have them
16 just drive anywhere they want.
17 GOVERNOR BUSH: If the strategy is to buy --

Page 17 of 37
18 to create this fully integrated state park, I
19 would -- the last purchase I would make is the
20 easement since --
21 CFO GALLAGHER: I agree, except if it was
22 available.
23 GOVERNOR BUSH: Of course, it's available.
24 We are just paying for something that property
25 owners already had the right to use. Hello.
123
1 Anyway, that's not the subject here.
2 MS. ARMSTRONG: That's not the subject at
3 hand.
4 GOVERNOR BUSH: I hope for the future --
5 CFO GALLAGHER: For fun, do you know when we
6 bought the easement? Was it part of another big
7 purchase or something from the developer?
8 MS. ARMSTRONG: '83 I am told.
9 CFO GALLAGHER: None of us were here in '83,
10 not even me.
11 MS. ARMSTRONG: It was part of a bigger
12 acquisition, to be clear.
13 MR. ARLINE: If I may, I will conclude. If
14 the idea is to go the northern route, to take the
15 path that staff is recommending, which is
16 essentially to connect from north of the easement
17 up to this subdivision, you go through a lot
18 called lot 30. And lot 30 has this deed
19 restriction on it: This lot shall never be used
20 for road or street right-of-way, to connect with
21 or to any road or street right-of-way in any

Page 18 of 37
22 adjoining property, provided that this restriction
23 may be released by the grantors herein, their
24 heirs and assigns.
25 CFO GALLAGHER: It said can be released?
124
1 MR. ARLINE: Can be released.
2 CFO GALLAGHER: We now own the lot, right,
3 the state?
4 MR. ARLINE: But not -- all of the other
5 property owners in that subdivision I believe has
6 some rights and interest in that restriction
7 because that's in their subdivision. I think the
8 intent of the developer of that subdivision was to
9 operate those two subdivisions.
10 CFO GALLAGHER: I am sure that was his
11 intent, but when he sold it to the state, the
12 state now has the rights he gave the person that
13 owned it and the future owners which you just
14 read.
15 MR. ARLINE: That's a point of --
16 CFO GALLAGHER: If the state wants to give
17 them, based on what they are doing, the access to
18 it, then somebody, other landowners around there
19 can take a shot at suing, but I don't think they
20 are going to get very far.
21 GOVERNOR BUSH: Wait until we find out.
22 MR. ARLINE: That's what lawyers get to
23 complain about.
24 Let me just close in saying that Cayo
25 Costa is an extremely special place. The state

Page 19 of 37
125
1 has a lot of investment out there, and we would
2 highly recommend that you not make it real easy
3 and more advantageous to develop out there than
4 it currently already is. There currently
5 already is an opportunity to get to that
6 property, and you don't need to do this. Thank
7 you.
8 COMMISSIONER BRONSON: Governor, if I can
9 ask, and I happen to be one person who has land
10 that's landlocked. And we actually have to get an
11 easement from our neighbor to get on to our
12 property, which by Florida law -- I can't remember
13 exactly how that law is written, it does say that
14 a person who buys property, titled, and so forth,
15 that has a proscriptive right to get on to their
16 property at some point. Now it doesn't have to
17 be the one that you want; it has to be a
18 legitimate -- and the courts have ruled many
19 times, you can't make somebody drive 45 miles to
20 get to his property that he could get to within a
21 mile or two from a main road.
22 So there are some court cases hanging out
23 there that has been adjudicated that has said
24 you have to give people rights to their
25 property.
126
1 So what is the legal aspect of -- you are
2 telling me there is no formal access easement
3 on this island, that everyone that's shown here

Page 20 of 37
4 you are saying really is on paper, that doesn't
5 exist, is that correct?
6 MS. ARMSTRONG: He has a right to get a way
7 of access, absolute legal right to get access.
8 Mr. Arline's -- to be fair, Mr. Arline's client
9 would like to find a way to delay to give somebody
10 time to buy the property.
11 The county is looking at perhaps
12 condemning; that's their business. I am here
13 to tell you it's only fair, this man is a
14 property owner. We have a statute that says we
15 surround his property, we have to give him a
16 way to get to his property.
17 GOVERNOR BUSH: Did we try to buy his
18 property?
19 MS. ARMSTRONG: We have tried. We tried to
20 swap. We weren't able to work it out. So in my
21 mind, he's agreed to the route we proposed. We
22 say it's the least intrusive to the natural
23 resources out there.
24 I would suggest to you that if he has
25 agreed to our option two, which is outlined in
127
1 the staff's recommendation, in the staff item,
2 that that is the way to go. And that's in
3 fairness to him; it's the shortest distance
4 between two points, pardon the pun.
5 COMMISSIONER BRONSON: Governor, on this map
6 that I am seeing here, that means that that line A
7 will go all the way out to the water where they

Page 21 of 37
8 are going to be unloaded from whatever carrier
9 they have to bring them over, so that that is a
10 direct line easement.
11 MS. ARMSTRONG: Yes, sir. He also has an
12 easement in that canal for a boat. He has an
13 easement there. He has access there already.
14 COMMISSIONER BRONSON: Okay.
15 CFO GALLAGHER: If he already has access,
16 then he is not going to get very far in the legal
17 aspect of it.
18 MS. ARMSTRONG: He is okay there with A.
19 CFO GALLAGHER: He is asking us, based on
20 some legal standard that he has to have access to
21 his property; and if he's already got it, how is
22 he going to get more?
23 MR. HYDE: He has access to a dock that's in
24 this existing canal. And this easement we are
25 requesting would basically run west and then south
128
1 down to the property.
2 We proposed a different proposal where our
3 lot is just to run straight in from the bay
4 which would be considerably shorter. But the
5 state doesn't like that option.
6 GOVERNOR BUSH: You can see why we wouldn't,
7 because that is probably the one that maximizes
8 the value. And since we are ultimately I guess
9 the purchasers of first and last resort here, as a
10 strategic --
11 MR. HYDE: My client, he is willing to go

Page 22 of 37
12 this longer route. He can live with it. He can
13 use the dock in the canal, and then he can get
14 access to his property in an area that the state
15 believes is already impacted.
16 I just wanted to clarify for you, there
17 are six houses on the beach out there, one new,
18 one built within the last year. To say that
19 there are no houses on the beach is misleading.
20 The listing that was supposedly in my
21 client's benefit for a gulf front lot, first of
22 all, he doesn't own it and he doesn't have the
23 listing for it.
24 I just wanted to make those
25 clarifications.
129
1 We are willing to go with the state's
2 preference here. I would ask you if you do
3 that, to waive the requirement that we pay the
4 state's attorneys fees, if we get into
5 litigation over it, because I do think there is
6 a distinct possibility that we will get in
7 litigation over it. And I would prefer not to
8 have to saddle my clients with that cost, too.
9 That's within your discretionary.
10 CFO GALLAGHER: What you are saying is we go
11 make a decision that gives you an initial access
12 point and we get sued, and you want to make sure
13 that you don't pay the fees that you basically
14 caused us to have?
15 MR. HYDE: No. I think that if you went our

Page 23 of 37
16 route, you wouldn't have any worry about a
17 lawsuit. And I don't believe the lawsuit would be
18 successful as you suggested earlier,
19 Mr. Gallagher.
20 What I am concerned about -- and this
21 isn't a big point, but I just don't think it's
22 fair to have us pay our fees, and then your
23 fees too, if litigation ensues. That's all.
24 We hope it won't ensue.
25 GOVERNOR BUSH: We are not going to sue you.
130
1 Isn't that the point? So we are not going to sue
2 you, so the only reason litigation would start is
3 if it's started by somebody else. Not by the
4 applicant, but by somebody else you are saying?
5 MR. HYDE: Right.
6 GOVERNOR BUSH: That's different.
7 CFO GALLAGHER: But other people are going to
8 sue.
9 MS. ARMSTRONG: Let me be clear. What we are
10 now recommending instead of denial of his request,
11 which was option one, is that you would approve
12 option two which is just line B, this, line B
13 would be the easement.
14 GOVERNOR BUSH: There already is an easement
15 going east/west?
16 MS. ARMSTRONG: Correct, that is a road in
17 there which is a big -- he has an easement on the
18 canal.
19 GOVERNOR BUSH: Is there a motion? I think

Page 24 of 37
20 we discussed this.
21 CFO GALLAGHER: I am almost at the point, I
22 have been around and around a little on this. I
23 am almost at the point where I believe there is
24 access already. He already has it. And my gut is
25 to deny putting an additional --
131
1 GOVERNOR BUSH: Where does he have access?
2 CFO GALLAGHER: To the canal.
3 GOVERNOR BUSH: But he doesn't have the
4 north/south.
5 MS. ARMSTRONG: He needs north/south, he
6 needs B.
7 CFO GALLAGHER: That's the land we own;
8 that's already an easement.
9 MS. ARMSTRONG: He doesn't have the legal
10 easement that he needs on B.
11 MR. HYDE: There is an existing east/west
12 easement. This section labeled B on this map is
13 what you would technically be granting to us here
14 today.
15 MS. ARMSTRONG: He needs that.
16 MR. HYDE: He needs that. There is no other
17 way to get from our property or to our property.
18 COMMISSIONER BRONSON: He has a 30-foot
19 easement that goes from his property back to B,
20 but he does not have legal easement from A down to
21 B.
22 MR. ANDRESS: Let me clarify some
23 misconceptions that have been thrown out here

Page 25 of 37
24 today.
25 CFO GALLAGHER: I can believe that.
132
1 MR. ANDRESS: What we have is at one time we
2 had a gentleman name Mr. Philip Rasmussen, he is
3 about 85, 86 years old. He developed this
4 subdivision.
5 In the late '70s and early '80s, the state
6 and Lee County placed a moratorium on any
7 building on Cayo Costa. During that frame of
8 time, that time period, the state went to
9 Mr. Rasmussen and said, We know you have got
10 this hundred lot subdivision called Island
11 Grove. But none of these lots are buildable.
12 So, therefore, why don't you sell us all the
13 property 360 degrees around this subdivision,
14 including all of the easements.
15 And Mr. Rasmussen said, sure, I will do.
16 So that's what he did.
17 All these people that he had sold property
18 to, he did not reserve any easements whatsoever
19 for them to get to their property. This
20 50-foot strip of land, they didn't pay $500,000
21 for that. The state bought all of the
22 beachfront and all of the other seven parcels,
23 360 degrees around this subdivision, and did
24 away with all of the easements.
25 There is no easements recorded, period.
133
1 When they purchased that land, there were no

Page 26 of 37
2 easements reserved. So that's why this
3 subdivision now, you have people out there that
4 have owned this property for 40, 50 years, they
5 bought these properties back in the '50s. They
6 still think to this day they have, the other
7 owners, that they have access because
8 Mr. Rasmussen represented that they did.
9 There is no access to this subdivision.
10 We proposed something we thought would be very
11 reasonable, is to come in from where it was
12 originally. We only have to go 370 feet to get
13 to the boundary line of the subdivision from
14 the bay.
15 That has less impact than anywhere out
16 there. But we paid $7,500 for a study to --
17 because some of the people, the park service,
18 they have been overzealous here in terms of
19 this whole issue, and they didn't want us to
20 come in from the bay. The only way you can get
21 there is by boat.
22 So as a compromise, we offered the first
23 two compromises, the first that we would trade
24 the property, but the park services said we
25 don't want to trade the property in an area
134
1 where all the greatest conveyance of lots are
2 that are still privately owned.
3 There is an area of LaCosta Isle
4 Subdivision, which is this subdivision right
5 here, all almost all of the lots out in this

Page 27 of 37
6 area, probably 20, 30 lots, are still privately
7 owned.
8 So we offered to trade in that area where
9 we could cluster the development and reduce the
10 impact.
11 I am a fifth generation Florida native. I
12 don't want this island destroyed. And I made
13 that commitment financially by giving millions
14 of dollars worth of property out there to the
15 state.
16 But the park service has their set mind.
17 And after we spent all this money, we withdraw
18 from the agenda, spent almost a year now with
19 appraisals and everything; no, the only thing
20 we are willing to trade you for is something
21 north of your lot. My lot is over here in this
22 area. And so, therefore, they trade me
23 something over in LaCosta Isle subdivision
24 where the state owns a hundred percent of the
25 property. Makes absolutely no sense
135
1 whatsoever.
2 But that's the position that the state has
3 taken in terms of a trade.
4 CFO GALLAGHER: Can we ask Eva how come
5 that's the trade instead of over there in that
6 place where there is a bunch of other houses?
7 MR. ANDRESS: We don't understand.
8 CFO GALLAGHER: Let her try to tell us why.
9 MS. ARMSTRONG: Actually I think we were

Page 28 of 37
10 swapping for anything -- we were going to swap for
11 anything we own which is pink.
12 GOVERNOR BUSH: We can't see that. Come on.
13 CFO GALLAGHER: Put it on the thing because
14 we can't see colors here. Al Gregory, I want
15 people talking that know about it.
16 MR. GREGORY: I am Albert Gregory. We made a
17 great job making this --
18 GOVERNOR BUSH: You need to be a little
19 louder.
20 MR. GREGORY: We've done a marvelous job of
21 making this a very complicated issue. Let me see
22 if I can simplify it.
23 GOVERNOR BUSH: Get closer to the microphone
24 if you could.
25 MR. GREGORY: This is the central portion of
136
1 Cayo Costa State Park. You saw the large map that
2 puts you in geographical context. Mr. Andress,
3 this is Mr. Andress' property right here.
4 Mr. Andress --
5 GOVERNOR BUSH: Get back on the chart.
6 MR. GREGORY: This is Mr. Andress' property
7 right here. Mr. Andress presently accesses his
8 property by way of this canal, called Sellers
9 Canal, down a public road right-of-way called
10 Costa Drive, down to roughly this point at which
11 the interstate lands are an existing Jeep trail,
12 dirt road. He comes down roughly there, and then
13 over land on state land, he reaches this property.

Page 29 of 37
14 All that we are suggesting is to give
15 Mr. Andress an easement over the route which he
16 presently uses, rather than to create a whole
17 new access in an undisturbed area through
18 mangroves, through hammock, through an
19 archaeological site.
20 CFO GALLAGHER: We got that.
21 MR. ANDRESS: And that's not even a correct
22 statement because this 2600 feet of road does not
23 even exist; it's through a pristine area; there is
24 no trail there. We never accessed through that
25 way.
137
1 GOVERNOR BUSH: How do you access your
2 property?
3 MR. ANDRESS: We don't.
4 CFO GALLAGHER: He doesn't have anything --
5 GOVERNOR BUSH: Do you ever go see your
6 property?
7 MR. ANDRESS: When I go there, I land a boat
8 right here, at this point right here, and go
9 370 feet from the bay over to the property where
10 the old easement used to be.
11 CFO GALLAGHER: Is there a structure?
12 MR. ANDRESS: No, structure.
13 CFO GALLAGHER: The reason why we got you up
14 here -- I am glad you told us that, but where is
15 the trade deal you offered them?
16 MR. GREGORY: We offered to explore and comb
17 Cayo Costa Bay Park for lots to trade. These pink

Page 30 of 37
18 shaded areas are the outstanding private
19 ownerships up in La Costa Isle subdivision. The
20 only lots that Mr. Andress wanted on Cayo Costa
21 Island were five -- not quite ocean front lots, as
22 you can see, they are not directly on the ocean
23 but they have a nice -- they are in this area
24 right here, I believe.
25 MR. ANDRESS: In between two existing houses.
138
1 MR. GREGORY: These are the only lots he was
2 interested in swapping for, the ones that had good
3 beach view. And one of our management objectives
4 there is to try to limit the number of houses
5 which you can see from the beach in order to try
6 to preserve the park experience.
7 People have property out there; they have
8 the right to develop their properties. We are
9 not suggesting that we are trying to obstruct
10 him from developing his property, but we don't
11 feel like we have an obligation to facilitate
12 the development of state lands that are on the
13 beach, you can see from the beach.
14 We were willing to swap Mr. Andress most
15 anything, but he asked for lots that we didn't
16 feel were in the best interest of the state.
17 CFO GALLAGHER: The pink ones are privately
18 owned, right?
19 MR. GREGORY: Yes.
20 CFO GALLAGHER: We own everything else?
21 MR. GREGORY: The county's ownership is in

Page 31 of 37
22 blue here.
23 CFO GALLAGHER: Where are these two houses
24 between -- that he wanted to be between?
25 MR. ANDRESS: There is a house right there,
139
1 and there is a house right there. So we thought
2 we could cluster this. We took a look at the
3 environmental impacts; there is no trees on the
4 property. There is almost -- there are no gopher
5 tortoises or endangered species on the property.
6 CFO GALLAGHER: You want to be on that road
7 between those two houses, not down there on the
8 other road?
9 MR. ANDRESS: We thought this would be one
10 place to go, and they said no to that. Then we
11 went up here to this area right here. You see all
12 the pink houses right here?
13 We said we will trade you for these lots
14 right in here inbetween all these houses. I
15 proposed that to Tracy for the DEP. And she
16 came back again and said no, we are firm here,
17 the only place that we will trade you any lots
18 is over in this area here where all the lots
19 are owned by the state. So our hands were
20 tied. What could we do?
21 CFO GALLAGHER: Listen, guys, whoever.
22 Aren't we better off having all the houses
23 together than building -- putting -- having people
24 put a house over there where there isn't anything
25 else?

Page 32 of 37
140
1 MR. GREGORY: Absolutely.
2 MR. ANDRESS: I am not asking you. I am
3 asking our staff people that do this stuff?
4 MR. GREGORY: That's where all the houses out
5 there are.
6 CFO GALLAGHER: That's where I would want to
7 be. I don't want to be over by the swamp there
8 and that looks like where all the mosquitos are.
9 I've got this marked, I am calling this dude up to
10 get me a lot.
11 GENERAL CRIST: I would like to make a motion
12 on option B.
13 CFO GALLAGHER: But what I would rather do is
14 get this guy a lot over there where the other lots
15 are and not have to do an easement way out to
16 somewhere else.
17 MR. ANDRESS: Mr. Gallagher, not only would
18 that solve the problem with me, but I talked to
19 Mr. McKenzie, I talked to Mr. Floyd, and we were
20 willing to take our 1.1-acre parcels and trade for
21 one and a half and have a stipulation, deed
22 restriction, we can only build one house; we can
23 move three of these lots out of here, over here on
24 these five lots. We would trade these five lots
25 for these three lots and would solve the problem.
141
1 It's a simple solution. And the houses are all
2 clustered.
3 GOVERNOR BUSH: You'd get a better view over

Page 33 of 37
4 there. Why wouldn't you want to do that?
5 MS. ARMSTRONG: I think that's part of the
6 problem, that at least from a staff and park
7 perspective, while solving a problem for
8 Mr. Andress, we didn't want to be giving better
9 state land up, far better state land up and, you
10 know --
11 GOVERNOR BUSH: You would have to meet the
12 wrath of the Governor. Oh, it looks better. If
13 it wasn't better, you wouldn't want it. You seem
14 like a smart guy.
15 MR. ANDRESS: I would rather have a house
16 over here because it's not -- it's off by itself,
17 it's secluded, it's more private, it's 10 and a
18 half foot elevation, it's covered with beautiful
19 oak trees. It's a much more beautiful building
20 site. These sites have nothing on them. You are
21 right there next to all the houses.
22 GOVERNOR BUSH: You are also right next to
23 paradise there, the Atlantic, I mean the Gulf of
24 Mexico and the beautiful beach, it looks like.
25 Anyway we can discuss that. The question
142
1 at hand here is not the swapping issue. The
2 question at hand is this property owner has a
3 right to access his property. And maybe by
4 giving him that right, he will have better
5 leverage to get whatever he wants to get from
6 the department; maybe he won't. But that's for
7 a later day. We'll probably have a lively

Page 34 of 37
8 discussion about that purchase in the future.
9 COMMISSIONER BRONSON: I would second the
10 motion.
11 CFO GALLAGHER: Let me ask a question here.
12 He already -- if we just let him drive around and
13 do it without any daggone easements, what's the
14 problem? If he wants to build something, maybe he
15 will utilize that road.
16 MR. HYDE: I will tell you why. Bill Hyde
17 for the applicant.
18 I guess you could probably take half the
19 tracts out there and drive all over the place
20 and incur the wrath of people. But the bottom
21 line is if you want to borrow money to build a
22 structure, you have to have a legal right of
23 access.
24 By the way, this is not some ploy to drive
25 up the price to get the state to buy it. The
143
1 Andresses legitimately want to build a house
2 out here; that's why they are going through
3 this rigmarole.
4 CFO GALLAGHER: Let me just say here, I think
5 to the staff here, and somebody is going to have
6 to educate me maybe inbetween meetings here --
7 that we would be a lot better off giving these
8 people the better -- if you want to call it --
9 property on that road and get these outparcels out
10 of there rather than having houses build out in
11 that other area.

Page 35 of 37
12 Why don't we get -- if these five guys
13 that have those lots are willing to take it on
14 theirs as a lump sum deal, give them some
15 lumps -- let all the people be on one street,
16 and get those other things in the state's
17 interest.
18 GOVERNOR BUSH: That's not a question, that's
19 homework for another day.
20 COMMISSIONER BRONSON: Commissioner
21 Gallagher's point, now by approving B, he is going
22 to be able to get to that place where he says he's
23 got the oak trees, a lot better place, higher
24 elevation. He is going to build a house there if
25 we don't give him any other option.
144
1 So this could be -- we are going to pay
2 now or pay later; we are going to end up
3 dealing with this one way or the other.
4 GOVERNOR BUSH: So there is a motion and a
5 second for alternative B of the agenda item, and I
6 assume we know what that means. There is no more
7 discussion.
8 CFO GALLAGHER: Which is the staff
9 recommendation.
10 GOVERNOR BUSH: The staff recommendation, the
11 new staff recommendation.
12 CFO GALLAGHER: Any agreement made with the
13 applicant -- when I started about --
14 GOVERNOR BUSH: -- an hour ago. Any other
15 discussion?

Page 36 of 37
16 Without objection, the item passes. Thank
17 you all. Thank you for coming up. Thank you,
18 sir.
19 MR. HYDE: Thank you, Governor, Members of
20 the Cabinet.
21 MS. ARMSTRONG: One more item. Item
22 number 8. This is six option agreements for
23 conservation easements within the Green Swamp Area
24 of critical state concern. They are at or just
25 below 90 percent of appraised value.
145
1 GOVERNOR BUSH: Is there a motion?
2 COMMISSIONER BRONSON: Motion.
3 CFO GALLAGHER: Second.
4 GOVERNOR BUSH: Moved and seconded. Without
5 objection, the item passes.
6 MS. ARMSTRONG: Thank you, sir. That's it.
10
11
12
13
14
15
16
17
18
19

Page 37 of 37
20
21
22
23
24
25
146
1 GOVERNOR BUSH: State Board of
2 Administration.
AOL now offers free email to everyone. Find out more about what's free from AOL at AOL.com.

Jrbu BHTJW Busse - Irmgard@t-Online - de Jrbu: The Governor, Easements, ... and Cayo Costa ..

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Jrbu BHTJW Busse - Irmgard@t-Online - de Jrbu: The Governor, Easements, ... and Cayo Costa ..

Transféré par

Droits d'auteur :

Formats disponibles

Page 1 of 37

Subj: THE GOVERNOR, EASEMENTS, ... AND CAYO COSTA ...

MS. ARMSTRONG: Item 7, I think we have

11 actually come to an agreement on this issue of

12 statutory way of necessity.

13 This item has been before you several

14 times. The last time we deferred it was about

15 a year ago. Mr. Andress owns several lots in

16 Cayo Costa State Park. They are landlocked and

17 he is entitled to a statutory waive of

18 necessity, and the issue is where that the

19 access should occur.

20 The state's position is that it ought to

21 go across already disturbed roadway and what is

22 actually kind of an ATV trail. He in the past

23 has argued for a way that would go across a

24 totally undisturbed area of land.

25 He is here today with his attorney. I

1 thought I would let them speak first because I

2 think we've come to an agreement where that

3 access ought to be.

4 GOVERNOR BUSH: All right. Can you get a map

6 MS. ARMSTRONG: Mr. Bill Hyde.

7 CFO GALLAGHER: If you all have agreed, I

8 would like to move the agreement. And if it works

9 out, great; and if it doesn't, then you will have

Sunday, June 07, 2009 AOL: JRBU

11 MR. HYDE: Well, I think there is a

12 third-party objector that may want to speak

13 against our proposal, so I would like to briefly

14 outline what we are here for today.

15 CFO GALLAGHER: Then we are going to hear

16 from them, too. I am sorry. I am ahead of myself.

17 MR. HYDE: By way of introduction, my name is

18 William Hyde. I am a long-time environmental

19 attorney here in Tallahassee, Florida. And I

20 represent the applicants in this case, Noel and

21 Karen Andress, who are in the audience here today,

22 if they could stand up briefly.

23 GOVERNOR BUSH: Good morning.

24 MR. HYDE: I just wanted to establish the

25 Andress's bona fides in appearing before you

2 Mr. Andress has personally sold to the

3 state some 26 lots on Cayo Costa Isle at below

4 market prices as part of the state's

5 acquisition on lots of that island. They

6 several years ago also donated to Lee County a

7 4-acre gulf front tract for a public park.

8 They have been in this process for two

9 years almost. They have spent literally

10 thousands of dollars in consultants and

11 attorneys fees trying to work this process out.

12 In fact, we were about to come before you last

13 fall on this easement when we were persuaded by

Sunday, June 07, 2009 AOL: JRBU

14 the objectors and by the staff to consider a

15 proposed land swamp for some other lands in

17 That did not bear fruit. We did not think

18 we were getting value for value. And we also

19 thought that the lands being proposed had their

20 own access problems. But in any event we were

21 delayed by some five to six months.

22 I think that Ms. Gallagher has stated it