Release of conservation easement on gopher tortoise lands a far more difficult process than described by Rock Springs Ridge HOA

When a parcel of land is deeded as a conservation easement in Florida, it's usually a perpetual agreement between the landowner and the Florida Fish and Wildlife Conservation Commission (FWC). It's designed to protect the environment and wildlife on that land forever, therefore it's a difficult and costly process to reverse.

In April of 2002, Rock Springs Ridge, LLC entered into a Deed of Conservation Easement with the FWC. Now, in 2021, the RSR Homeowners Association is attempting to sell the 51-acre parcel to a developer. The very nature of that transaction goes against the spirit of the agreement and blatantly runs counter to parts of the document forbidding development.

But Gary McSweeney, the President of the RSR Homeowners Association, said the process would be relatively easy to accomplish. In a September 29th, 2021 email to The Apopka Voice, he makes this claim:

"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."

But according to the document provided by the FWC, it's far more difficult than simply mitigating existing tortoises.

"Conservation easements are an interest in land held for the public and a conservation purpose and are supposed to protect these interests in perpetuity. However, when landowners request the release of conservation easements, commission staff shall use the following guidelines to determine whether the release is appropriate. Requestors shall provide compensation that provides a net conservation benefit. Following the guidelines will ensure that the release meets the requirement of a net conservation benefit, minimizes risks to the agency, and is treated consistently with other release requests."

McSweeney also said in the same email that the HOA previously received correspondence from the FWC about reversing the easement.

"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," he said. "Application to the State will be necessary should any proposed development/tortoise conflicts be discovered. At that time, solutions will be evaluated and address[ed] between the State and developer. If development on this parcel interferes with any existing gopher habitats, such application will be required."

An email thread obtained by The Apopka Voice dated August 16th, 2021 between Michelle Chase, an RSR Homeowners Association board member, Eric Seckinger, a biologist for the FWC, and Dr. Katherine (Gentry) Richardson, the Gopher Tortoise Program Coordinator for the FWC, confirms that there was correspondence between the FWF and Chase and that the HOA board received the terms to reverse a conservation easement.

From: Michelle Chase

Sent: Monday, August 16, 2021 12:07 PM

To: Seckinger, Eric

Subject: Re: Rock Springs Ridge Easement

Thanks,

Can you send what is needed to rescind the easement, please?

Michelle

Richardson responded to the request on September 16th, 2021:

From: "Richardson, Katherine" <Katherine.Richardson@myfwc.com>

To: Michelle Chase

Cc: "Seckinger, Eric"

Date: Thu, 16 Sep 2021 17:37:55 +0000

Subject: RE: Rock Springs Ridge Easement

Michelle,

Please refer to the easement release policy language included in the attached document. We can schedule a site visit to inspect the proposed replacement habitat once we receive the required release request package from you.

Best,

Katherine (Gentry) Richardson, PhD

Gopher Tortoise Program Coordinator

Division of Habitat and Species Conservation

Florida Fish and Wildlife Conservation Commission

The September 16th email from Richardson also included an attachment titled "Guidelines for Accepting or releasing perpetual conservation easements".

But the list of conditions in those guidelines describes a far more daunting task that seems to either disqualify the 51-acre parcel or make the process to release the land so financially burdensome that it would make any development pass on the prospect.

Among those conditions:

• Requestors must provide mitigation to permanently offset the impacts to the habitat/species due to their requested alteration to the conservation easement, even if mitigation requirements have been met for species impacts.

• Landowner must avoid development within a conservation easement unless no other practical and prudent alternative is available, and all steps to minimize impacts as set forth below are implemented.

• A request to release and replace a conservation easement must include a comparison of the social, economic, and environmental effects of the alternative locations considered for the development impact and why these alternatives were not practical and/or prudent.

• Landowners requesting to release and replace a conservation easement, or part thereof, must show that adverse impacts to lands under the conservation easement will be minimized through reasonable measures where applicable.

• Ideal replacement properties are the same habitat type or habitat that supports the species for which the easement was originally given and are contiguous to the affected parcel or in the same FWC region as the original easement.

• 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 pay the FWC an amount not less than the fair market value of the interest acquired in the parcel on which the linear or non-linear facility and related appurtenances will be located.

• The applicant will provide to FWC the appropriate measure of additional land necessary to offset the actual acres of habitat proposed for release. FWC permits may also be required if impacts to protected species are likely by the proposed work.

• If the end 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, and the allowable future use of the linear facility must be incorporated into the existing easement. If the result will result in a loss of habitat or impact on the wildlife, the request must include a proposal for compensation. The existing easement must also be modified, and the allowable future use of the linear facility must be incorporated into the existing easement.

Despite the knowledge of the hurdles it would take to overcome these stipulations, the HOA board pressed forward with an October 4th vote among its homeowners to approve the potential sale of the 51-acre gopher tortoise conservation area, and by a vote of 571-123 gave the HOA permission to sell the property.

And according to a letter mailed to the RSR homeowners along with their ballots, there was a prospective buyer for the property with an offer of $5.5 million.

Two days later, McSweeney and RSR Homeowners Association attorney Kurt Ardman went before the Apopka City Council with a revised proposal to purchase the city-owned land on Harmon Road that they believe is a key parcel in its quest to purchase the golf course lands in RSR from the Golf Group - the owner of the defunct golf course at RSR.