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Opinion: City Attorney spikes three-way deal, but workshop did not deliver closure

Can the Golf Group and RSR close a land swap for the golf course lands?



It had all the earmarks of a workshop. 

There were three tables lined up on the Apopka Amphitheater stage to face an audience of about 100 people. There were three attorneys, an engineer, and the Apopka City Council. There was a published agenda, and a 792-page packet detailing most of the subjects to be discussed. 

But somewhere along the journey to enlightenment, the workshop languished into a 90-minute back-and-forth discussion that lost its focus. Yes, there was one major takeaway, but it certainly did not bring closure to all of its subject matter.

Apopka Mayor Bryan Nelson, who stood alone on this same stage in April to announce his intention to aid the Rock Springs Ridge (RSR) residents in gaining control of their golf course lands, opened the workshop with an announcement that disappointed several would-be public speakers.

"This is a Council workshop, which means no audience participation," he said. "If you have questions after the workshop, feel free to stay and ask them."

That's an interesting decision to make considering public comment has been allowed at the City Council budget workshops for the past four years. It's a rule Nelson himself changed from the previous administration.

The case for the three-way-land swap

In the first position of the agenda, RSR attorney Kurt Ardaman presented another offer for the Harmon Road property and stressed the importance of preserving the three-way deal between RSR, the Golf Group, and the City.

"We are here to try to achieve the objective of the [RSR] HOA to acquire the 319 acres [of golf course lands] that are now owned by the Golf Group," said Ardaman. "We are aware the City has an appraisal on the Harmon property for $2.5 million and has received offers in excess of that - $4.5-$6.5 million. I know there's been discussions by city commissioners and staff about putting that property out for bid. The HOA is going to make a bid well above the appraised value if the City Council will go along with the three-way-swap."

Ardaman handed out copies to the City Council of the offer made by the RSR HOA for the Harmon property and explained why the amount was blank. 

"The bottom line is we did not specify an amount [on their letter of intent]," he said. "We said fair consideration."

Ardaman then explained the bank shot the HOA would need to hit to make the three-way deal work.  

"The Golf Group likes that idea a lot. It's attractive to them and the HOA because the three-way swap is contingent on the HOA being able to sell its 51-acre Kelly Park Road [gopher tortoise conservation area] property. It doesn't matter who buys it, but that sale is required to pay for the City property, and provide the HOA with funds to deal with some issues on the 391-acre golf course [lands]."

Despite the HOA and Golf Group's preference to continue the three-way deal, Ardaman did propose a second option.

"As a backup, the HOA and Golf Group are prepared to make a direct swap of the Kelly Park Road property for the 319-acre golf course," he said. "That is a possibility, however, we believe the three-way-swap is a more effective way for the HOA and Golf Group to make this happen."

The City's perspective on the two options

Attorney Tucker Byrd, and David Evans, an engineer representing the Golf Group, spoke briefly about the Golf Group's preference for the three-way swap, and then Nelson moved the conversation to City Attorney Michael Rodriguez.

"Next up, Michael will give the City's perspective on this," Nelson said.

"The counsel for the HOA and Golf Group has given us two options, and the City's position is that it's going to be option two," Rodriguez said. "The Harmon Road property is not openly on the market, and any swap or purchase of the property would require a City Council vote. The City would not be involved in that swap [between the HOA and the Golf Group]. That is a private real estate transaction, and the City would have no say. The city would entertain any application for redevelopment as it would entertain any application from any property owner."

It was an inauspicious end to the would-be agreement between the City, the RSR HOA, and the Golf Group. But there were still a lot of questions to be answered. Nelson, however, started the discussion section of the workshop after Rodriguez's harsh dose of reality by inviting questions from the commissioners.

Commissioner Diane Velazquez, who is a resident of RSR, wanted to know why the three-way-swap was still on the table after she learned yesterday of the City's position.

"I'm surprised the three-party agreement was proposed tonight," she said. "I spoke to the City Attorney yesterday and I was told the HOA would deal directly with the Golf Group. I'm surprised this was presented to us at this moment."

But Ardaman was pitching for a second opinion on that verdict from the full body of the City Council.

"We understand that the city attorney and the mayor do not like the three-way agreement, or the swap," said Ardaman. "But it's not my decision, or the mayor or the city attorney's decision. It's the City Council's decision. If the City Council does not like the three-party agreement... that's up to you all as we understand it. If you, the City Council say no, we understand that."

A tough audience to find three votes

Certainly in business, you want to explore every possible option to close a deal, but calling on the City Council to champion this transaction is a head-scratcher. 

This is a City Council who, at best, has been skeptical of this deal for months. But now, throw another couple of logs onto the fire - a city attorney speaking on behalf of the city saying they are not choosing what's behind door number one, and a mayor who may have supported the idea of the proposal in April, but has now stated publicly many times he is against a three-way deal. 

There just isn't a clear pathway to three votes on the Council.

Velazquez returned to a theme that seems to be growing in momentum - letting the market decide what should happen to the Harmon property.

"I've always felt that the Harmon property was a city asset that should be put out to bid," she said. "Yes, we've gotten letters of intent, but I still think that's the fair way."

A vote for manifest destiny

Commissioner Doug Bankson would like to help the RSR residents get control of the golf course lands, and control their own destinies, but he also had questions about some of the restrictions on the Kelly Park Road property.

"For me, the end role is self-determination for the citizens here and protection of their assets," Bankson said. "It has to be a win/win and what's the best course of action getting there."

Bankson asked Rodriguez for clarification about the easement on the gopher tortoise conservation area [the 51-acre parcel on Kelly Park Road].

"That is a conservation easement that was entered into by the original RSR developers, and the Florida Fish and Wildlife Conservation Commission (FWC)," said Rodriguez. "Any changes to that easement or modification of it would be handled by the state and not the city. The city has no jurisdiction over that. Either the HOA or the Golf Group would go to Tallahassee [FWC] in order to make modifications or to have the easement released."

"Is there any way to explain the different opinions and different things that we hear that it's almost impossible to remove [an easement] versus 'it's just a process to remove?'" Bankson asked.

"I can't give an opinion on whether or not the state will rule on this one way or another, but conservation easements can be amended with the proper procedure," Rodriquez said. "Speaking theoretically, and hypothetically if there is an easement in the area for a gopher tortoise habitat, the state routinely permits for gopher tortoises to be relocated."

The unbreakable Conservation Easement

But according to the FWC, that process is difficult and has conditions that make reversing an easement a rather daunting task. The eight-page document uses language like perpetual and forever.

Among the conditions:

  • Requestors must provide mitigation to permanently offset the impacts to the habitat/species due to their requested alteration to the conservation easement. 
  • A landowner must avoid development within a conservation easement unless no other practical and prudent alternative is available.
  • A request to release and replace a conservation easement must include a comparison of the social, economic, and environmental effects of the alternative locations. 
  • Landowners requesting to release and replace a conservation easement must show that adverse impacts to lands under the conservation easement will be minimized.
  • If the easement replacement or modification request is accepted by FWC, monetary compensation plus habitat replacement resulting in a net conservation benefit must be received by FWC in conjunction with easement release/replacement acceptance. 
  • The applicant will provide to FWC the appropriate measure of additional land necessary to offset the actual acres of habitat proposed for release.
  • If the result will not result in a permanent loss of habitat and the land will continue to provide wildlife habitat and corridors which retain prohibitions on development and conversion, the request must include a proposal for the compensation described in the existing easement must also be modified.

It makes this statement by Carli Segelson of the FWC Communications Department seem understandable when asked if this is typical for developers to buy a property and then reverse a conservation easement? 

"In our experience, it has been rare," said Segelson.

Commissioner Kyle Becker voiced concern the workshop was straying outside the parameters of what should be City business.

"We're getting outside the scope of what I thought this workshop was about," he said. "If we're talking about the land swap where the Golf Group and the HOA trade the 51 acres for the 320 acres [golf lands], all of that's going to have to come through a normal hearing process for us [City Council] to contemplate anyway."

"Yes," said Rodriguez.

"What I was more interested in is why we were here... for Harmon Road primarily," Becker said. "But I wanted to take a step back. A lot of people weren't here in April when this tri-party land swap was administration-led with the city owning the golf lands for a period of time, and doing precisely the things you said wouldn't be legal to change our PUD [Planned Unit Development] document... and so we've gone from an almost pro [position]... to against doing anything with Harmon Road?"

"My understanding is because there has never been a formal action to put the Harmon Road property up for sale, there is no action for the Council to consider," said Rodriguez in response.

"How could we make that presentation in April?" Becker asked.

"My understanding was it was an option to consider," said Rodriguez. "Now, we're here today in November, and the direction I've been given is that there is no formal offer to put Harmon Road up for sale."

A twisting, turning fluid deal

"I guess what has transpired between April and now... there has been a lot of fluidity," said Becker. "And from where I sit, why is there such fluidity? If this is a swap between the HOA and the Golf Group, what business does the City have?"

"You're not alone in seeing that there is fluidity," said Rodriguez. "In my own dealings with the two HOA [and Golf Group] counsels, it has been fluid. You think we're going one way and then they present another proposal... and another. You're not wrong. It is fluid. The city's position has always been the same. At this point, Harmon Road is not officially up for bid."

Despite being on the agenda in the first position under "exhibits", and having a 218-page report in the agenda packet, the communications tower on Harmon Road was not discussed until the end of the workshop, and even then just in discussions among the Council.

Becker assessed the tower to still be viable, and not as imminent to replace as was previously thought.

"How I interpret [the report] is it still has useful life. It's in working, operable condition, and it's not in danger of failing," said Becker.

"I would agree," said Nelson. "It's still up to City Council, but obviously the useful life is getting shorter. The report Rob [Robert Hippler, Apopka IT Director] put together is pretty comprehensive. We can leave it there [on Harmon Road]. But how many more years before it falls down and we have a problem with our first responder's communication? The only question is do you want to leave it there? I guess we'll be saving $700,000. But if we move it do we generate more revenue from the property if we sell it? That's all to be determined."

Velazquez also believes the tower has life and is in favor of leaving it where it currently stands.

"The tower is not on its death bed," she said. "The only thing we cannot do is add more servers. It's working. We maintain it, and it's not on its death bed. It's used by our first responders and it will remain there until we have something else, and that's not anytime in the future."

Becker, in a statement to The Apopa Voice, thought the workshop fell short of its intended goal.

"I thought there was little gained in the workshop, as this administration still has not presented any near or long term plans for the Harmon road property nor directly discussed the communications tower, outside of the report we received in preparation of the workshop that indicated it is in acceptable working condition," Becker said. "Both of these things would be critical to making a final disposition recommendation or decision as it relates to Harmon.  The only thing we did find out is the Mayor has done a complete 180 on the residents of Rock Springs Ridge, basically ending the possibility of Harmon being in play, an idea he himself unilaterally introduced to those residents back in April at the Amphitheater."

Commissioner Alexander Smith, who is also an RSR resident and a skeptic of the land swap from its earliest days, sent a statement highlighting his attitude towards the deal.

"It appears as the onion is peeled that with the three-way agreement the Golf Group would have ended up with Harmon Road and the 51 acres on Kelly Park Road," Smith said. "So now, we will wait for the HOA and the Golf Group to make their private transaction since the City is no longer involved."

Velazquez, who also sent a statement, expressed disappointment in the workshop:

"The workshop fell short of its intended purpose to provide clarity in this RSR deal and to inform the residents the three-way proposal to swap properties, including the Harmon properties, was no longer on the table to swap with the Golf Group in exchange for the defunct golf course."

Apopka City Council, Apopka City Council Workshop, Apopka Amphitheater, Mayor Bryan nelson, Commissioner Kyle Becker, Commissioner Doug Bankson, Commissioner Alexander Smith, Commissioner Diane Velazquez, Rock Springs Ridge, The Golf Group


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