From Volume 8 E-Newsletter, May 2022
On May 2, City Council approved by a 5-2 vote (Blankenship, Christman, Hutchison, McCabe and Perry voting “yes” and Heitmann and Petrunoff voting “no”) creation of a conservation easement for the former Naples Beach Hotel (NBH) property.
This easement will preserve in perpetuity 104 acres for recreation and open space. Importantly, the easement further specifies 70 of these acres as fixed, contiguous and defined exclusively for open space.
This is a remarkable achievement, whose importance is difficult to over-state. Without this easement, over 100 acres of land in the heart of Naples was at risk of development. While the property will remain in private hands, it will forever remain open and passive recreational space, with all the aesthetic, stormwater management, and other environmental benefits that accompany that use.
To fully appreciate the significance of this action, we need to revisit some recent history.
When the Athens Group came forward with a proposal to purchase the NBH back in 2019, the golf course portion of that property was zoned single-family residential. That meant that any owner had the right to redevelop that property in that fashion. Imagine 150 high end single-family homes in a gated community occupying that site! That was entirely possible.
The Athens Group proposed to create a Planned Development (PD) that would keep the golf course property in open space and recreation use, but also give them the entitlements to build seven condo buildings totaling approximately 185 units along with a new hotel and associated commercial and ancillary facilities.
This was the trade-off that Council accepted in 2019: greater density and intensity in the hotel/condo development than permitted by the underlying zoning in return for protection of the open space. And when the project was approved by Council in May 2019, it included a “perpetual easement” on the existing golf course property.
However, there was one major shortcoming in this arrangement. The perpetual easement included as signatories only the City of Naples and the Athens Group (or its successor). The easement could be terminated at any future time by agreement of those two parties. It would not be difficult to imagine a future City Council and a future owner of this property, both desirous of maximizing development and taxable value, terminating the easement and moving forward to develop it for commercial or residential purposes.
What was needed was a third-party who could also be a signatory to the easement and could provide the long-term enforcement and protection needed. Both before and after I was first elected to Council in April 2019, I had begun working with a coalition of homeowner associations (in particular, Old Naples Association, Coquina Sands Association, and Moorings Property Owners Association) to create such a structure. We even identified a law firm who specialized in such work and was available to work with residents and the City to achieve this goal.
But the majority of City Council at that time did not agree with this approach. The inclusion of a third party to the easement was not supported. I was one of only two councilors to vote for it.
But fortunately some of us on Council – and many in the community – did not give up. And other events occurred. The composition of City Council changed as a result of the 2020 election. And members of the community became concerned over possible changes to the site plan for the property.
In November 2020, City Council agreed to retain the Ausley McMullan law firm to assist us in developing a conservation easement agreement for the property. That began an 18-month process of negotiation with The Athens Group that resulted in the recent approval action by Council
Residents should know that this final product is much improved over what was contemplated in 2019. We now have in place a “conservation easement” with third party participation. A conservation easement is a special type of easement designed to protect lands designated for conservation purposes. There is a Florida statute passed by the state legislature in the 1990’s that authorizes conservation easements. This means that creation of a conservation easement is protected under Florida law, not just common law.
Also, as part of this process, City Council and Ausley McMullan identified a nationally recognized land trust, the North American Land Trust (www.NALT.org), to serve as the third party who would monitor, manage and enforce the easement. NALT’s only busines is holding and managing conservation easements; it holds over 560 such easements in properties across the United States.
The conservation easement approved by Council is accompanied by an agreement allowing for the easement to be held in escrow until it can be officially recorded. Recording will be triggered by the Athens Group receiving its first building permits and/or certificates of occupancy. In other words, the easement will be recorded in tandem with the development of the property. The property cannot be developed without the easement. This achievement is the result of continued perseverance by residents, a willingness by the Athens Group to keep their word and compromise for the public good, and a City Council that treated this matter as a top priority. All Naples residents should feel pleased with this outcome.