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A doomed deal is not a good reason to harm gopher tortoises

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Opinion

By Reggie Connell, Managing Editor

Craig Pittman is probably the best nature writer in Florida. He is the voice of wildlife and the environment in our state.

In 2020, he wrote an alarming story about the plight of gopher tortoises and how a loophole in the current laws is causing gopher tortoises to be smothered in their burrows. The article infuriated me, but I did nothing about it.

After all, it wasn't in Apopka.

And this month, Pittman wrote about Pulte Homes, a major real estate developer in Florida, destroying 22 gopher tortoise burrows, and paying a fine of approximately $13,700 on a multi-million dollar deal.

That story infuriated me as well, but I did nothing about it. Although Pulte Homes builds houses in Apopka, this was a Marion County subdivision where they buried gopher tortoises.

My passive activism

In general, I am an environmentalist and an animal lover. I'm not going to chain myself to a tree or crash my boat into a whaling ship off the coast of Japan, but I want a clean environment, and I don't want to see wildlife or pets mistreated.

It's been a history of passive activism.

I'm also in support of capitalism and want businesses to prosper within the guidelines of regulated free commerce. I want businesses to play by the rules, be community-minded, employ workers at fair wages, and make a zillion dollars. I don't see why a person can't be an environmentalist, animal lover, and capitalist all at the same time.

I've heard developers lament over lost deals that involved a lone scrub-jay or spotted owl setting up a nest on a property they wanted to develop and killing a deal that would bring affordable housing to a community in need.

I'm not in support of that kind of overcorrection in environmental laws, but sometimes laws to protect nature make perfect sense, sometimes they don't go far enough to protect wildlife or the environment, and sometimes they happen in your backyard.

About the Gopher Tortoise

Before reading Pittman's articles, when I thought of a gopher tortoise scenes from the movie Caddyshack came to mind...

Remember Bill Murray trying to kill that pesky gopher that plagued his golf course? He went as far as dropping dynamite down the gopher hole only to be foiled by the durable and crafty creature. But what's happening to gopher tortoises in Florida isn't funny, and what could potentially happen to them in Apopka would be tragic, but it's still avoidable.

The gopher tortoise earned its name because it digs deep burrows—like a gopher. It is the only land tortoise native to the area. It became the official state tortoise of Florida in 2008. The gopher tortoise is called a keystone species, meaning that it’s very important to the health of the ecosystem it inhabits because its burrows provide shelter for hundreds of other species.

In a way, it provides affordable housing to other animals in its community.

The gopher tortoise is classified as vulnerable to extinction by the International Union for the Conservation of Nature. Scientists estimate their population has decreased by 66% over the last century. The main threat the species faces is habitat loss. At the current rate of development, the gopher tortoise could lose 20% of its habitat within the next 40 years.

Laws to protect gopher tortoises are lacking

In Florida, the gopher tortoise is listed as "threatened" - not endangered. This is a lesser listing of protection. Under current law, gopher tortoises must be relocated before any land clearing or development takes place, and property owners must obtain permits from the Florida Fish and Wildlife Conservation Commission (FWC) before capturing and relocating tortoises.

But environmentalists have protested that process almost since its inception. Developers can simply choose a section of the property with fewer (or no) gopher tortoises, and use it as their assessment. And the extra costs of smothering tortoises, and whatever other animals are in their burrows, are minimal in comparison to the overall profit of most developments.

Earlier this year, the Orlando Sentinel published an article about the gopher tortoise mitigation law and its loopholes. According to the report, inspections by FWC officials have found mass deaths of tortoises and extensive evidence of improper care.

Incredibly, this is a better law than what existed previously. Before then, the state allowed developers to pay a mitigation fee and bury tortoises alive, a policy denounced by animal rights activists.

They called it "pay to pave".

The upside? Within 14 years, the state brought in $47 million in permit fees and purchased 22,000 acres of gopher tortoise habitat. The downside? At least 74,000 tortoises were killed in the process.

The drama of the Rocks Springs Ridge Golf Course

For months now, I've covered the story of the Rock Springs Ridge Homeowners Association, the Apopka City Council, and the Golf Group playing "Let's Make a Deal".

Understandably, the HOA has been trying to get control of the golf course lands at RSR, owned by the Golf Group. And for years, the Golf Group has threatened to sell it to developers and asked outrageous prices for the land.

But in 2021, a creative deal emerged.

In this proposal, the City of Apopka would trade its land on Harmon Road (appraised at $2.4 million) to the Golf Group in exchange for the golf course lands. The City would then sell the golf course back to the RSR Homeowners Association (at the same price) once their financing was in place.

To say there have been twists and turns, ebbs, and flows in this potential deal would be an understatement. For months they've gone back and forth, but nothing seemed to solidify.

Then another piece of land entered into the bargain.

The gopher tortoise connection to RSR

There is a 51-acre parcel that connects to the Rock Springs Ridge community called the Gopher Tortoise Conservation Area... or at least that used to be its name. The HOA owns that land, and for years it sat untouched as a gopher tortoise conservation area, bordering only 12 homes in RSR.

But as the months dragged on and the three-way deal seemed less likely to close, the HOA made a surprising move and put the 51-acre property up for sale.

And quickly they found a buyer willing to pay $5.5 million.

According to the documents sent to RSR homeowners by the HOA, the prospective buyer is Eloise Holdings LLC of Davenport, FL - owned by Dr. Wade Foster. I do not know Dr. Foster. I don't know what Dr. Foster will do with that land if purchased, but I doubt he is willing to spend $5.5 million to keep a gopher tortoise conservation area up and running.

But this isn't about Dr. Foster.

624 West Kelly Park Road: Gopher Tortoise Conservation Area or land just waiting to be developed?

In his interview with The Apopka Voice in July, RSR Homeowners Association President Gary McSweeney emailed me a response to a question I asked about that property.

"Are you still moving forward with selling land to purchase the golf course from The Golf Group?" I asked.

"The HOA would receive significant financial compensation if the vacant, HOA-owned 624 West Kelly Park Road property were sold to a third party," McSweeney said. "Instead of securing a bond through the City for long term financing of the golf lands, RSR would earn enough money to purchase the golf lands outright, invest $1.5-million in renovating the clubhouse building and lands, improve roads, walks, and parking surrounding the clubhouse and have enough money left over to adequately fund the HOA treasury."

It's hard to argue that $5.5 million wouldn't come in handy, but at what cost? And when did this property stop being a gopher tortoise conservation area? According to McSweeney it never was.

"This Kelly Park vacant land is not a gopher-tortoise sanctuary nor part of any conservation area that requires special consideration under local, state, or federal laws and borders only 12 of the 1,320 homes built in RSR," he said. "The HOA's intentions are to protect those homes with the addition of a 200-feet deep vegetated buffer strip attached to the north side of Sand Wedge Loop in RSR and extending 200-feet into the Kelly Park land area. This land would be heavily vegetated and deeded to the 12 Loop Residents which would likely result in establishing some of the largest lots available in RSR, while significantly adding to their sound and visual privacy. Again, a Win-Win solution for everyone especially when the HOA can produce these results without any financial debt to the RSR community."

Saying the 51 acres on Kelly Park Road is not a gopher tortoise conservation area runs counter to a lot of evidence.

In an attachment McSweeney emailed to The Apopka Voice, there is a historical narrative of RSR updated in December 2019 that describes the property as "Gopher Tortoise Conservation Land".

On the RSR Homeowners Association website, which reads like a campaign ad for purchasing the golf course, and selling the gopher tortoise conservation area, there is a brochure with a list of "benefits" - one of them stating that 'gopher tortoises will be relocated according to Florida Fish and Wildlife guidelines by the developer of the outparcel after the sale.'

You read about those guidelines earlier.

And finally, if you take a drive along Kelly Park Road where the north side of the property is fenced-in, there are multiple signs on the fencing that state:

RSR

No Trespassing

Environmentally Sensitive Area

Violators subject to fines and imprisonment

Gopher Tortoise Conservation Area / Protected Habitat

There is also a picture of a gopher tortoise and a logo from The Gopher Tortoise Council (GTC). Despite numerous attempts to contact the GTC, they did not respond to what their logo was doing on the signs.

The no trespassing sign hanging on the fenced-in area of the gopher tortoise conservation area on Kelly Park Road

In response to questions asked by The Apopka Voice about the gopher tortoise conservation area, McSweeney responded with this statement:

"The HOA has been communicating with the State Fish and Wildlife who acknowledges any owner of land can apply for mitigation measures to address modification of tortoise type habitats located on any parcel. Once proposed site plans are created during the due diligence phase of the review and approval process. Application to the State will be necessary should any proposed development/tortoise conflicts be discovered. At that time, solutions will be evaluated and addressed between the State and developer. If development on this parcel interferes with any existing gopher habitats, such application will be required."

McSweeney also said that the entire RSR development went through this process in 2002.

"The 51-Acres of land includes a Deed of Conservation Easement dated April 22, 2002 which can be reviewed and altered by application to the State," he said. "Tortoises were found all over the RSR community and mitigation measures were taken in the past to safely relocate tortoise habitats as approved by the State through their application process."

That application process, however, didn't start until 2007. Before that developers wanting to build on gopher tortoise habitats could apply for an "incidental take" permit, paying a fee that allowed tortoises to be entombed in their burrows to die a slow death. Because of their slow metabolism, gopher tortoises can survive in their burrows for up to 12 months before dying.

The outcome of this deal

It has been stated on social media by many that the City Council fears electoral reprisal if they do not vote for this three-way swap. But I'll tell you as someone who has covered Apopka politics closely for over five years now, I don't see the political fear in their eyes. I've interviewed every one of the five City Council members, and there are two things I can tell you...

First - they are already laying the groundwork for a "no" vote on selling the Harmon property. Take a look at these quotes and observations from the City Council in the last few weeks:

“I’m hesitant because there are too many unknowns,” said Commissioner Alexander Smith - a homeowner in RSR. “Residents call me, they see me walking, or at Publix… and they stop and ask ‘how much is this going to cost me?’ And I can’t answer that question. Because of the unknowns, I would not vote for this as a resident.”

“I’ve got other concerns,” said Commissioner Doug Bankson. “My big issue is the tower and the cost. I’m a steward of that land on behalf of the people… and I really have an issue with the money that’s made having to move a tower that really doesn’t have to be moved except that we’re doing this deal. My head is not wrapped all the way around this. We just can’t make a decision that’s not in the best interest of the people… and I think everyone is in agreement with that.”

“I remember saying that when Harmon was first proposed in the swap, that what are we doing with the property housing the tower?" Commissioner Diane Velazquez said - also a homeowner in RSR. "I had concerns with that because we should own that property.”

“The last City Council meeting we had intelligence that maybe was not correct," said Commissioner Kyle Becker. "We heard that the HOA was trying to go on their own, to do their own transaction, and it would leave Harmon out of it… but then we found out afterward that wasn’t necessarily the case. So I guess knowing that shows Harmon is a piece of real estate that is desirable to multiple interests..."

“I’ve said it numerous times it was never my intention to make a three-way-swap," said Mayor Bryan Nelson. "From day one I’m not for a three-way-swap and never have been. They brought the proposal in some form… not in written form but in private meetings with the Golf Group.”

Does that strike you as a Council primed to pull the trigger on this deal?

The second point...

All five council members are adept at taking the pulse of the community. Some of them call it 'the will of the people', others call it 'reading the tea leaves', but none of them fear a 'no' vote because they see an RSR community split on this issue, and it's becoming clear over months of digging deeper into this three-way swap that it's a bad deal for Apopka.

Essentially, the City gives up a parcel of land appraised at $2.4 million that is probably worth more than that on the open market. Also, if it sells or swaps the property, it's forced to move a communications tower at a higher cost than if it simply upgraded the tower that has stood there for the last 30 years.

So not a great incentive to sell or trade.

In exchange, the City gets the defunct golf course lands to sell back to the HOA for the break-even price of $2.4 million - only that land is almost certainly not worth that amount.

Somehow, the Golf Group has created the perception of leverage over the City and the HOA to make them feel as though they finally have a shot to make a deal. Previous asking prices for the golf course lands by the Golf Group were blatantly overpriced... now, they are just moderately overpriced.

Keep in mind the golf lands are essentially recreational/greenspace since the City would have to approve any plan to add more houses, which gives the Golf Group even less leverage.

And just to add another element of heartburn to the proposition, the HOA is trying to sell the gopher tortoise conservation area to secure cash to fund its purchase of the land rather than securing a bond.

It's not exactly the win/win proposition that McSweeney referenced. It's more of a huge win for the Golf Group, lose/lose for the City and RSR, and get suffocated in your habitat kind of outcome for the gopher tortoises.

Live to fight another day RSR

Let's stop playing games. Call the 51 acres whatever you like, but clearly, there are gopher tortoises on that land and you took on the role of stewards of those creatures by setting that land aside years ago. You decided to protect them... not just until you find a buyer.

I'm sorry you don't see what I see. I guess your desire to possess those golf course lands has clouded your perspective. It's too bad you don't hear what the City Council is saying. It's time to get past the perception that the Golf Group is holding aces when all they have are rags.

I wish you weren't willing to harm nature and wildlife for a deal that's quickly heading for a brick wall, but before you escalate this bad deal into an environmental catastrophe, you should reconsider your actions and stop.

The golf course lands are an annoyance, but they aren't going anywhere, and they aren't going to become new houses anytime soon. Live to fight another day and come back to the bargaining table when the Golf Group realizes that it has no leverage to ask such ridiculous prices for vacant land and that the City is not going to save them with prime real estate.

I have never owned a home that was a part of a homeowners association, but if I did and something like this happened, I would want the board to approach this crisis like a task force and give its residents all the information on the subject it needs to make an informed decision, and then stay out of the voting process.

I would not want them to become a political body, hire a PR firm to craft its message, and put up signs about how to vote. In my opinion, that's not the role an HOA should play. Oh, and one other thing... don't fence-in 51 acres, designate it a gopher tortoise conservation area, and then change your mind and try to make a profit from it when the scenario suits.

That's just bad form.

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