armstrong governor

8/9/2019 Armstrong Governor

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Subj: THE GOVERNOR, EASEMENTS, ... AND CAYO COSTA ...Date: 3/16/2007 11:19:53 P.M. Eastern Standard TimeFrom: JRBUTo: [email protected], [email protected],[email protected], BHTJWCC: [email protected], JRBU

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Sunday, June 07, 2009 AOL: 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

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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


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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

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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

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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?

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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

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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

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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

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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

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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

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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

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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

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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'.

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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

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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

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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,

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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,

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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

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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.

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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

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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.

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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

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24 point, these are the only ones that are owned.

25 Where is our applicant's property?

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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.

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1 CFO GALLAGHER: A ferry with a front end that

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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

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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

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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

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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

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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

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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

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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

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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 --

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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.

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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

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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?

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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?

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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

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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

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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.

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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?

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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.

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146

1 GOVERNOR BUSH: State Board of

2 Administration.

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