S.C.R.E.W.-ed (Sara/Mana edition)

'S.C.R.E.W.'-ed (Sara/Mana edition)

Could the Southern Corkscrew Regional Ecosystem Watershed in south Lee County represent the next eminent domain battleground for Florida?

By Sean Roth

Real Estate Editor

Do you have Florida Panthers living on your property? Could they live there? Or does your property flood during extreme rainy periods? If you answered yes to any of these questions than your property may not be yours for long.

Bill Moore, a partner in the Sarasota office of Miami-based Brigham Moore LLP, is representing 51 property owners facing eminent domain condemnations in Lee County's Bonita Springs. He says the south Lee situation is part of a growing trend of environmental preservation eminent domain cases being waged by Florida's water management districts.

In 1995, Bonita Springs was deluged with as much as 100 inches of rain. The Manna Christian Missions RV park on Bonita Beach Road and the surrounding area was so severely flooded that about 1,700 residents sought alternative housing for weeks.

After the water receded, regional governmental organizations started looking at ways to prevent future flooding. The South Florida Water Management District (SFWMD) decided to acquire about 4,670 acres, north of Bonita Beach Road, east from Bonita Grande Drive to the Collier County line, and restore the property for water retention and recreation. The goal: convert a thousand acres to wetlands to serve as a buffer for local aquifers.

There was one big problem. The land is occupied by about 50 single-family homes and several businesses, most of which run along Bonita Beach Road. The district, with funding from the federal government, started buying parcels in the Southern Corkscrew Regional Ecosystem Watershed (Southern CREW) in 1997. Officials gave owners two options: sell to us or have your property taken through eminent domain.

According to information on the district's Web site, "The urgency of this project is the lands proposed for acquisition have been divided into 5- and 10-acre tracts that are being developed as single family homes. This new development will require improved roads and other infrastructure including 2' to 3' of fill material for the house pad and elevated yards that will adversely impact the ecosystem further."

By Nov. 27, 2000, the water management district had acquired 1,536 acres or 32.9% of what it planned to acquire.

In December of 2000, the SFWMD board passed the first of many eminent domain resolutions. In April of 2002, the district took the resolution to court for an order of taking.

It was at this point that Moore and his compatriots became intimately involved. "We lost," Moore says. "We were fighting against the taking and we lost. This is a sad, sad situation. This is uprooting families. Now the attorneys and property owners can only hope to arrive at what they feel is a more true sales price."

More than 18 months later, holdout property owners still wait for their property to be taken.

"I have no problem with environmental protection," says Moore, "I just have a problem with the way they are doing it. They have the order allowing them to take the property. But now they are just waiting. They are waiting to get the lowest price for the land. They are just letting people hang and die on the vine."

Moore's contention is that the government is trying to reverse condemn the property. The property has been marked as a 'condemnation-approved property' so it is nearly impossible to sell the property. Plus, the vacant, largely unmanaged land surrounding the holdout property owners has led to dumping and other illegal activity further depressing the value.

Moore points to a similar case the firm is pursuing in the Bird Drive Recharge Area in Miami-Dade County.

In that case, the water management district passed an ordinance calling for the eminent domain taking of the remaining portion of the 410 acres project area in 2002. But the district had been publicly discussing the preservation project since 1985. A law firm analysis showed that the average sale price per acre in the project was $35,089 per acre versus an average sale price in the surrounding area of more than six times that figure or $217,508.

"It's a short cut," says Moore. "It's in (the government's) best interest to take the land as cheaply as possible."

In the Lee case, there is also an issue with the government showing that it truly needs to take the 4,670 acres. A 1998 study, produced for SFWMD by Naples-based Agnoli, Barber & Brundage Inc. and Johnson Engineering, didn't recommend the acquisition of the property. Instead the study recommended altering certain exotic plants, removing an abandoned road, working with landowners to evaluate road crossings and altering pumping requirements of the agricultural users.

"We offered them several options," says Moore, "The government said 'We absolutely have to have all the property, every acre,' They had an expert that said this was a potential habitat for the Florida Panther. And the judge bought it. That was two years ago. Now, they are saying that they won't need the property by the road (abutting Bonita Beach Road two miles to the east of Bonita Grand Road and north to the Kehl Canal). We asked them if they would put that in writing, and they say they won't."

In addition, there is also the perceived inequity between the Southern CREW property and the surrounding area. There are three master-planned communities across Bonita Beach road. The big name developers include the Bonita Bay Group, and Divosta and Co. Inc.

Water management officials dispute the criticism. Jacque Rippe, director of the Lower West Coast Service Center for SFWMD, says the project was ultimately an issue of safety. As the area became more developed, more people would be negatively affected by the flooding. And studies by the water management district show that huge rainfalls, such as in 1995, occur about every seven years.

"After 1995, the people out there said you need to help us," says Rippe. "During the rainy season, the property typically is under a foot to two feet of water. While their actual house is high and dry, it doesn't take much to put the roadways underwater. A deluge today is going to stay."

Rippe vigorously refutes the accusation of reverse condemnation saying that based on the appraiser process it isn't even possible. "Our appraisers use a parallel of properties outside the area," she says.

Asked why the agency decided to remove all landowners from the property, Kurt Harclerode, spokesman for the SFWMD, says it was because of the planned removal of roadways and the district's use of controlled burns. "It just wouldn't be safe for them out there," he says.

Both officials did agree, however, that some of the property that was in the order of taking may not ultimately be included. They point to property in the western section, near County Road 951 and Bonita Grand Road. "We are watching that property to see if the 951 road alignment goes through," says Rippe. "That road alignment would make it too expensive for the water management district to restore the property."

The cost also played a significant part in the southern border of the project. "That land (where three large community developments are being constructed) has been agricultural for many decades," says Rippe. "The land has been altered. A lot of it has been graded. It has been farmed since the '60s. It would simply be too expensive to restore the property."

While officials say they are sympathetic to the impact the project has had on residents, they point to the enormous scope of the project as an explanation for the lengthy time the project has taken. "There are 800 tracts out there," says Rippe. "Under the willing seller program we moved from the east westward. We have done title searches ... sent out offers. We had a (court) case that took a year and a half. A lot of the property is owned by people all over the U.S."

To date, the SFWMD has purchased 2,700 acres and condemned another 600 acres. "I think the project has been very successful," says Rippe. "This is a federal project with relocation benefits."

For landowner Nancy Prevatt, the Southern CREW project has been life altering. "When we bought it - we were 55 - we planned to live there and retire. Now, we have to find a new development. We hired Brigham-Moore because we didn't want the daily worry of what was going to happen. This is extreme living. It's either very dry or very wet. I only have three neighbors left. It's hard to find a place to live when you have no idea how much you are going to get for your property. It just puts you in limbo."

"We are fighting these type of cases all over Florida," says Moore. "This is a broader problem."

Other Cases

Two other ongoing land-preservation eminent domain cases in Florida:

× Bird Drive Recharge Area in Miami-Dade County. The South Florida Water Management District is acquiring about 418 acres of property in western Miami-Dade County. The preservation is designed to recharge groundwater and reduce seepage from the Everglades National Park buffer area by increasing the water table.

× Southern Golden Gate Estates Hydrologic Restoration in Collier County. The project, which includes the acquisition of about 19,000 parcels, will tear out roads and fill in canals to restore natural water flows across 55,000 acres between U.S. 41 East and Interstate 75. The stated purpose of this project is to restore and enhance the wetlands in Golden Gate Estates and in adjacent public lands by reducing over-drainage.

Next Stop

It is difficult to predict where the next environmental acquisition program will flare up in the state. The only clues come from where a particular water management district currently has an acquisition program and where the districts are conducting acquisition studies. According to the 2003 Land Acquisition Plan, the Southwest Florida Water Management District is conducting the following studies in the Gulf Coast region:

Hillsborough County:

× Lower Cypress Creek, a piece of land running on both sides of Interstate 75 and Interstate 275 north from the Pasco County border and hooking to join the Hillsborough River.

× McIntosh Wetlands, a small parcel of land west of Interstate 4 at the termination of a branch from Blackwater Creek.

Manatee County:

× Manatee River Watershed area, a small parcel of land running over the county border near the Manatee River Watershed.

× Peace River Basin/Horse Creek, a piece of land in northern Manatee County which runs into Hardee County following the Horse Creek.

× Upper Myakka River Watershed/Myakka River Watershed, a small parcel of land just north of State Road 70 running into an existing acquisition project in the Myakka River Watershed.

Pasco and Pinellas counties:

× Pinellas-Anclote River Basin, a portion of land running from Pinellas County into Pasco along the Anclote River from around Tarpon Springs.