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Florida Environment

Florida conservation easements preserve land – until a developer needs it

Loophole in the law allows state to release the easement, opening it up to destruction

Florida may be the only state where the economy depends on the willing suspension of disbelief.

I’m not just talking about the thousands of tourists drawn here by the theme park fantasy factories along Interstate 4.

I’m talking about all the developers who tout retention pond lots as “lakefront.” The Ponzi schemers who assure suckers that they’re making a sound investment. Government officials who promise the public that nothing bad could happen from rebuilding in areas where a storm surge wiped out everyone a few years before.

Now I have a new one to add to my Florida cynic’s hit parade: conservation easements.

When state government buys the development rights to land instead of spending money to buy the land itself, it has acquired a conservation easement on the property.

You see announcements about them pop out as regularly as the latest updates on Taylor Swift’s love life: “State acquires another conservation easement!” “Land preserved by new conservation easement!” “Conservation easement saves rare species habitat from development!”

Those easements have preserved a lot of Florida forests, swamps, and beaches.

“Since the late-1990s,” the Florida Department of Environmental Protection says on its website, the state has “acquired more than 140 conservation easements and land protection agreements, protecting over 262,000 acres statewide.”

But last week, I found out something a trifle disturbing about our Florida conservation easements. It snapped my head back like that scene in “The Killers” where Ronald Reagan smacks Angie Dickinson across a room.

Although everyone talks about conservation easements like they’re permanent, they aren’t.

Some agencies have been quietly disposing of theirs on a regular basis. State law allows them to do that.

And because there’s no central directory to show where all the conservation easements are located, these state agencies usually don’t have anyone looking over their shoulders to object.

Kimberly Buchheit, via LinkedIn

These lucrative land deals are supposed to preserve the property in perpetuity. But Kimberly Buchheit, a Central Florida land surveyor and environmental activist, told me, “Perpetuity has reached an expiration date: as soon as it is no longer convenient to protect land or restrict development.”

Eric Draper was in charge of the Florida State Park system from 2017 to 2021 and he’s long been an advocate for environmental land acquisition. I contacted him to ask if he knew about this loophole. He did not and was flabbergasted.

“This turns the whole purpose of those easements on its head,” he said.

Nobody paying attention

As always when I have a question about Florida’s environmental land-buying programs, I contacted Clay Henderson, who literally wrote the book on this subject (“Forces of Nature: A History of Florida Land Conservation,” order your copy today!).

He has more than a mere academic interest in this subject. About 40 years ago, in Volusia County, he helped spearhead the nation’s first voter-approved land-buying project.

Henderson confirmed that the conservation easement loophole exists. It’s apparently been there ever since a change in the federal tax code made the sale of such easements a way to ease the landowners’ tax burden.

In 1996, he said, conservation easements were added to Florida’s popular Preservation 2000 land-buying program (the predecessor of the current Florida Forever program).

Clay Henderson via him

“We believed there was interest in working with the large forestry interests to purchase their development rights and allow them to continue forestry under more conservation-minded harvesting criteria,” Henderson said.

The first one issued, he said, was to save some timber property owned by Georgia Pacific in Volusia County.

Over time, the easements have grown in popularity as our parsimonious Legislature has balked at spending a lot of money acquiring land for parks and preserves. Buying only the easements is a way to make a little bit of cash stretch like Mr. Fantastic.

Boosting the sale of those easements even more: The Rural and Family Lands Protection Act, passed in 2001. That law allows the state to buy the development rights from farmers and ranchers and let them continue working the land.

So far, according to the Florida Department of Agriculture and Consumer Services, the state has acquired conservation easements on nearly 69,000 acres of working agricultural land.

Just last month, Agriculture Commissioner Wilton Simpson announced he’d spent more than $8 million to acquire easements on a 707-acre ranch in Polk County, a 998-acre timber and cattle operation in Putnam County, and a 525-acre cattle ranch in Polk County.

Now the Legislature wants to funnel millions in gambling revenue that the state will receive from the Seminole Tribe to such land preservation programs. As a result, we will probably soon see a boom in conservation easement sales (unless a court halts the exclusive gambling deal).

Sometimes the easements that are lifted were purchased by a government agency to protect the land. Others have been set aside as a required part of a mitigation project to make up for destroying wetlands elsewhere.

No one I talked to was sure when Florida government agencies started reversing the easement ownership to make land available for development again. But it’s definitely happening now.

Henderson told me that he checked the agendas for the last two monthly meetings of the St. Johns River Water Management District. He found three separate cases where the agency was giving up such an easement — far more than he had expected.

“I don’t think anyone’s really paying attention to this,” he told me. “I suspect it’s that there are so many developer consultant types who have a cozy relationship with the staff that it’s happening in an ad hoc way.”

Having your cake, eating it too

The person who tipped me off about this surprising loophole was a woman from the Central Florida town of Geneva named Katrina Shadix, who is more than a little obsessed with bears.

She signs her emails “Beary Best Regards” and runs an organization called Bear Warriors United that sends free bear-proof straps for garbage can lids to anyone who asks.

She emailed me about the loophole last week after an organization called Conservation Florida was trumpeting how it had helped the state acquire a conservation easement on the 1,285-acre Lightsey Family Ranch near Venus. The ranch is the home of such threatened species as sandhill cranes, gopher tortoises, Florida grasshopper sparrows, and burrowing owls.

“The protection of Lightsey Family Ranch further connects the Florida Wildlife Corridor, linking critical green landscapes and wildlife habitats,” DEP Secretary Shawn Hamilton told WUSF-FM for a story headlined, “A key portion of the Florida Wildlife Corridor will remain undeveloped.”

Except maybe it won’t, Shadix said.

For one thing, the ranch is not exactly welcoming to any wildlife that might be traveling in the Florida Wildlife Corridor, she pointed out.

A gator caught at the Lightsey Family Ranch, via the ranch.

Lightseys have been tending cattle in Florida since 1858, but this Lightsey ranch makes money another way. On its Facebook page, the ranch bills itself as a “Premier HUNTING destination as well as Corporate Retreat.” Owner Lee Lightsey made news in 2016 when a hunter he was guiding killed an alligator on Lightsey’s property that was roughly the size of Godzilla.

When the DEP paid $4 million for the conservation easement on the Lightsey Ranch, it agreed to a host of conditions, including allowing the owners to continue bringing in exotic animals for hunters to pursue on the fenced-in property.

“This is really having your cake and eating it too,” said Lesley Blackner, a Tallahassee attorney working with Shadix who’s been giving developers heartburn for a couple of decades.

The DEP deal, Blackner said, “expressly authorizes ongoing use of the property as a canned hunt facility and further expressly authorizes ongoing importation of non-native game stock for hunting purposes,”

And, thanks to the loophole, the development rights can revert back to the Lightsey family at some point, she said.

“They can cash out in the future when development gets closer,” Blackner said.

Traci Deen, president and CEO of Conservation Florida, acknowledged that conservation easements such as this one may not last to (as Buzz Lightyear used to say) infinity and beyond.

“Easements, typically designed to protect the natural or open space value of a property in perpetuity, can be subjected to changes, terminations, or extinguishments under certain circumstances,” she said.

Nevertheless, she told me, “I am unaware of any such action on easements purchased through Florida Forever or P2000, as the Lightsey Family Ranch easement was.” Despite the possibility of a reversal of the conservation easement, Deen said, “Lightsey Family Ranch will never be a subdivision or hundreds of concrete homes — it will always be green.”

Development high-five

Shadix told me she found out about the loophole when she was at an Orange County Commission meeting some years ago.

Consultant John Miklos is former chairman of the St. Johns River Water Management District. Credit: water district

She watched in astonishment as the commissioners voted to change the zoning on a parcel from “conservation easement” to one that accommodated commercial development. She then saw a politically influential environmental consultant named John Miklos high-five another consultant who’d drawn up a report on the property, she said.

She called Blackner, who researched the law and found the loophole.

Up to that point, “I was ignorant of the whole process,” Shadix told me “I didn’t know if it was illegal or improper, but I was angry.”

She, Blackner, and Buchheit came up with a trio of examples and in December sent a letter about this issue to House Speaker Paul Renner and Senate President Kathleen Passidomo.

Did our fine Legislature leap into action to close this loophole? They did not. They were far too busy ordering the schools to teach kindergarten kids about Communism and deleting references to climate change from state law.

You know, the really important stuff.

Contractor’s Wetlands Park?

Here’s one example from their letter, so you can see how this fast shuffle works.

In 2006, the owner of a project called Contractors Business Park in Orlando set aside a wetland to be “preserved” via conservation easement to make up for destroying another wetland during the construction of a nearby Walmart. The federal, state, and local governments had all signed off on that wetland mitigation arrangement (even though it constitutes a net loss of wetland acreage).

Then, in 2017, the St. Johns River water district board voted to lift the conservation easement on that property.

The district’s board did that so that the wetland could be paved over as an office park, just as the name implies. Maybe if they had called it “Contractors Wetlands Park” it could have stayed in a natural state.

Anyway, the justification for undoing the easement is that the owner had paid for a different kind of mitigation to make up for the Walmart wetlands destruction. That way, the “preserved” wetland could be developed.

The owner had bought “credits” from a wetland mitigation bank in another area. Mitigation banks are places where wetlands have been restored or merely preserved and then state and federal agencies assign the owner a certain number of credits for that work, which he or she can then sell off for thousands of dollars each.

A lot of Florida’s developer-friendly wetland “mitigation banks” do little to really replace the wetlands that are lost to development. They classify dry land as wet, or merely preserve land rather than creating any new wetlands. But buying those credits makes everything look hunky-dory on paper.

You may not be surprised to hear that the consultant on the Contractors Business Park project was Miklos. He was also, at the time of the vote to lift this conservation easement, the chairman of the St. Johns River water board.

He stepped down from that post in 2019 after Buchheit filed an ethics complaint against him for similar conflicts. Buchheit told me that a plat has been filed for more commercial development to be built on that formerly “preserved” wetland.

Slap ’em like Ronnie

I tried repeatedly to reach the current chairman of the St. Johns River Water Management District board, a former state senator named Rob Bradley. If his name sounds familiar, he’s the politician who sponsored a bill that forbids local governments from banning the sale of any type of sunscreen, even the kind that causes problems for Florida’s coral reefs.

Because his law firm’s website says he’s “certified by the Florida Bar as an Expert in City, County, and Local Government Law,” I’m guessing Bradley is well aware of the conservation easement loophole. He’s certainly seen it pop up on his meeting agendas.

Nevertheless, he didn’t call me back. Probably he’d been rubbing on some Coppertone and then his hands were too slippery to hold a phone.

Shadix tried to tell the Florida Fish and Wildlife Conservation Commission about the loophole at its meeting last month. She was encouraging that agency to do something to track what was happening to the easements, since nobody else is. They didn’t seem interested in becoming Conservation Easement Central, she said.

Deen said one way to strengthen these easements is with “the inclusion of a ‘perpetual’ term in the deed and defining the purposes of the easement clearly.” Those steps can help prevent future attempts to dissolve or compromise the easement.

Blackner told me that other states have more stringent rules for their conservation easements, In Georgia, for instance, you have to go to court and persuade a judge to lift the easement, rather than simply win a majority of votes from a nine-member water board.

If nothing else, she said, it would be nice if Florida changed its law to require that someone who sold their conservation easement to the state would have to pay back the millions to the taxpayers before the easement can be reversed and the land developed.

Personally, I’d go even further. I’d say you could only buy back your development rights after running an advertisement in a general-circulation newspaper inviting any and all taxpayers to appear at a certain public place on a certain day to line up and slap you really hard.

I bet some slappers could do it even better than old Ronnie Reagan.

Wetlands, Conservation Easement, Florida Phoenix, Environment, Craig Pittman


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