Thursday, December 07, 2017

Art Basel George Lindemann victorious but at what cost? ... by gimleteye

This is surely one of the craziest Florida stories that has never been fully reported: Miami art collector George Lindemann's role in undoing a legacy of Florida water law. It is complicated with many chapters, but the main point is that in Florida -- unlike Texas, say -- rainfall and fresh water is a public resource. You don't get to own rainfall in Florida.

During the Jeb Bush terms as Florida governor starting in 1998, the right to privately own water surfaced as a possibility, through the agency of a subsidiary of Enron, a Texas company closely affiliated with the Bush family, whose spectacular bankruptcy defined the excesses of the boom. Floridians treasure their fresh water resources but to large agricultural interests, if the rainfall they capture or that springs up from underground could be harnessed and sold, it would be liquid gold.

The water privatization story in Florida politics faded with Enron but never went away completely because Texas billionaires like the owners King Ranch know exactly what liquid gold smells and feels like: in Texas, fresh water is private property. The King Ranch owns key parcels in the Everglades Agricultural Area.

Now the privatization initiative is gathering steam thanks to a bizarre capitulation of the Rick Scott administration in litigation with Lindemann over his property in West Martin County.

Last year's key piece of legislation signed into law by Gov. Rick Scott and proposed by Senate President Joe Negron actually includes a provision for TAXPAYER money to be used to scope out the engineering challenges of marshaling rainfall water as a PRIVATE utility. It also involves the connection between Lindemann, whose family is the largest private shareholder of Verizon grown out of talc powder business, with Big Sugar billionaires; the Cuban American Fanjul family whose holdings include Florida Crystals.

Lindemann is a relative newcomer to Florida. Before owning Lake Point -- lands he pledged to split into a rock mine for cement products and in part a conservation area, he was a real estate developer in Miami concentrating on the Biscayne Boulevard corridor. The Fanjuls are a vertically-integrated hemispheric force in the sugar business and heavily influence Florida politics through the outsized contribution of the sugar subsidy in the US Farm Bill; the corporate welfare that not even conservatives in Congress have been able to dislodge.

In other words, subsidized sugar -- costing US consumers nearly twice the world market price -- provide outsized profits to Big Sugar that turns around and sprinkles dark money campaign contributions throughout the political system. A similar subsidiary relationship may define the Lindemann / Fanjul connection because the only thing more profitable to Big Sugar than growing sugarcane would be if it could sell the water on its lands; exactly what the Lake Point project became.

Big Sugar acreage -- some 800 square miles south of Lake Okeechobee -- formerly defined Everglades wetlands, provided by nature. They are now highly cultivated private property whose irrigation needs -- not too wet when it rains, not too dry when the rains stop -- drive Florida politics and water management infrastructure. That faulty equation leaves out the Everglades and coastal real estate owners, putting enormous sacrifice on the backs of property owners and taxpayers, that environmentalists like Maggy Hurchalla have spent their entire lives struggling to rectify.

It is also the equation that now engrosses George Lindemann when he purchases Lake Point, with no prior experience in the battle between Big Sugar and Everglades activists. (For a recent article in the Treasure Coast Palm, click here.)

The litigation over Lake Point may have ended between Lindemann and Martin County, but Lindemann seems determined to push Maggy Hurchalla and her like-minded allies into the ground with legal expenses that far exceed the capacity of ordinary citizens.

With so much Big Sugar money filtered like confetti through the legal and political ranks, it is no wonder that the underlying stories are so lightly reported.

Eye On Miami has tried to keep the Maggy Hurchalla story in view. Here is a link to our archive. Interested readers ought to spend time here, especially the "Achiever" interviews with Hurchalla.

We reprint the following with permission of the author.

December 5, 2017

I’m Maggy Hurchala. For the last five years I’ve been involved in a SLAPP suit. That is a Strategic Lawsuit Against Public Participation. Look it up in Wikipedia. They will tell you it is legal bullying meant to intimidate, bankrupt, exhaust and SHUT UP critics.

Martin County and the SFWMD also got slapped in the case of Lake Point vs. SFWMD, Martin County, and Maggy Hurchalla.

I can’t talk about that lawsuit because it is, as they say, “ongoing.“ The trial date has been set and moved three times. It is now set for Feb 5. I am looking forward to the time when we can talk about the issues and facts out loud and under oath.

In August the SFWMD settled with Lake Point. In October, Martin County settled. I’m now the last one standing. My friends keep warning me to check my brakes when I come to a hill, to wear a proper bathing suit while swimming and not to drive after one drink or grab guys by inappropriate parts.

Last week Lake Poinm’s favorite media outlet announced that “a criminal investigation of Heard, Hurchalla and others by a grand jury is currently underway.”

This week their lawyers wrote me a letter saying that it was possibly a poor choice of words. They apologized and admitted that it might be possible for readers to think that; “a criminal investigation of Heard, Hurchalla and others by a grand jury is currently underway” meant that “a criminal investigation of Heard, Hurchalla and others by a grand jury was currently underway”.

This week two current commissioners and one former commissioner were attacked by our own legal system in arrests and charges that have everyone wondering why the good guys get arrested for jaywalking while the bad guys get away with murder.

But there comes a time when someone has to point out that the Emperor has no clothes. I can talk about the settlement agreements the Water District and the County agreed to. They are going to cost you and all the residents of South Florida. They are going to change Florida water law and reinterpret the meaning of our County rules and regulations. The public officials who approved them are pantless.

To talk about the settlements I need to tell you what Lake Point is all about.

I will try to do that as carefully as possible which means dully with gory details left out. You can find out more exciting parts of the story in books and documentaries and websites.

The Lake Point property is a little over 2000 acres in western Martin County. It is just south of SR 76 and the St. Lucie Canal and just a few miles east of Lake Okeechobee.

In 2005 Trucane Sugar (Florida Crystals) sold the north half to the Blakely’s who planned a 20 acre agricultural subdivision for polo players. They obtained preliminary approval from Martin County.

The SFWMD first got involved in the Lake Point property in 2006. The District director proposed purchasing the 2000 acres from the Blakely’s and Trucane for $68 million. The proposal was rejected by the District Board.

The Blakely’s continued work on phase I of the project. In December of 2007 they asked the County Commission to amend their development order because they had found rock on site and the rock would hurt the horse’s hooves unless hauled offsite. The County amended the subdivision’s development order to allow rock mining.

In January of 2008 phase 1 of the property was purchased by the Lindemann Group. They proposed a project that they said would help save the Everglades, supply dry season flows to the Loxahatchee River and reduce damaging discharges to the St. Lucie Estuary. Martin County was promised that a 150 acre conservation area would be deeded to them for public use free of charge. This area had been set aside, along with an active eagle’s nest, as a preserve area in the Blakely’’s approved development.

In September of 2008 the Lindemann Group exercised an option with Trucane to purchase phase II – the southern half of the 2000 acres.

In 2008 and 2009 Lake Point entered into a development contract with the SFWMD to create a public works project. Lake Point would make money excavating two lakes amounting to 1000 acres and selling the rock. The District would get a free piece of land. Lake Point would provide fill and valuable earthwork to build a stormwater treatment area on the east half of the property. The two excavated lakes would be on the west half. You can see the project on Google Earth.
In the original contract Lake Point would be allowed to mine rock from the two stormwater lakes for 20 years.

In the same time period Martin County entered into an Interlocal Agreement with SFWMD setting certain conditions for the project. Lake Point would be designated a public stormwater project when the land was donated to the District. This would free them from going through the long formal permitting process and allow a staff review to establish compliance with Martin County regulations.

Lake Point later became interested in selling water to utilities in Palm Beach County and south. They made their first public proposal in September of 2012 to the West Palm Beach City Council.

In January of 2011 Lake Point received their DEP permit for the stormwater lakes. In January of 2012 they received their Corps permit.

In early 2013 Martin County staff recommended filing a Notice of Violation. The project was not shut down and continues to operate a commercial rock mine.
That same January staff of the SFWMD informed Lake Point that their contract did not allow them to sell water.

Lake Point sued the SFWMD, Martin County and Maggy Hurchalla for breaching contracts and interfering with contracts. The suit has been going on since that time.

Lake Point later sued Martin County for failure to turn over public records.

On August 11 2016 Judge McManus issued an order in the case that concluded:

The Acquisition and Development Agreement is not ambiguous and it clearly states nothing about selling water or reserving the rights to sell water.
So it looked like the District had won, but in August of this year they chose to lose by signing a settlement agreement that said Lake Point could sell water.
That settlement did a number of things that taxpayers and residents need to know about:

On the water issue they set a precedent that may change Florida water law. Right now the people of Florida own the waters in the aquifer beneath our feet and the waterways around us. Users can get a temporary water use permit for a reasonable beneficial use. The settlement appears to let Lake Point sell its “irrigation rights” to another user with a different use. That appears to privatize public water and give permit holders permanent ownership.
The original agreement ended in 2029. Lake Point was allowed to mine rock for twenty years. It provided for turning over land to the District for stormwater treatment areas early in the 20 mining term.

The new agreement lets Lake Point mine for 50 years and doesn’t require that any land be turn over to the District until 2067. A lot of us think that if we haven’t saved our river by then it will be dead.

The settlement awards a no bid contract to Lake Point to supply riprap to SFWMD for the next 15 years. Whether they need it or not, the District will have to buy 50,000 tons a year of riprap from Lake Point or pay a large penalty. If a court rules this year that the no-bid exclusive contract is illegal, taxpayers in South Florida will be required to pay Lake Point $19 million dollars.

The original agreement was a trade. Lake Point would get to dig rock for 20 years. The District would get free land for a stormwater treatment area, and Lake Point would provide valuable fill and earthwork for the stormwater treatment area and would complete the stormwater lakes to permit specifications. The settlement removes Lake Point’s obligation to do any of these things. They no longer have obligations. They can sell rock for 50 years and sell water. In 50 years the District might use the 800 acres and the 1000 acre holes in the ground for some environmental purpose, but there is no requirement to do so.

That’s the District settlement. The Martin County settlement agrees with everything in the District settlement. It appears to give Lake Point everything it asked for. It would take too long to list all the changes.

There are interesting examples.

It changes what is allowed in the A2 zoning category. That’s the zoning that the five acre rural lots in Martin County have. It didn’t allow mining and cement plants. It does now. Martin County was required by the settlement to expedite the changeto the A2 zoning. The agreement requires that, if homeowners on a five acre lot questioned what was happening to their rural neighborhood and sued, the County would be required to fight the suit and seek sanctions. That’s right. Your County Commissioners have agreed to sue you and seek monetary damages if you question what they did to your area’s zoning.

The County is required to buy 400 acres from Lake Point for $12 million. Commissioner Ciampi pointed out that residents won’t use the land.

I looked up the appraiser’s market value for 167 acres of that 400 acres. The total value of the 167 acres is set at $142,000 or $850 an acre. The County is paying Lake Point $30,000 an acre for the 400 acres.

But don’t start saying it’s a bad deal or it will get worse and will cost taxpayers even more. The County agreed to put up $4 million in escrow immediately. If they don’t close the sale and give Lake Point $12 million by January 18. 2018, we lose our $4 million escrow, we get no property, and we agree to be sued for breach of contract.

Finally, the County was forced to apologize and grovel on your behalf and agree that:

Lake Point is an important and integral part of environmental restoration and regional water supply in the South Florida region.

They agreed that:

Lake Poimt contributes in a meaningful and environmentally responsible way to the creation of the Public Works Project by excavating land.


It is a vital component to the orderly growth of the County.


The County acknowledges Lake Point as a good corporate citizen and appreciates the efforts of Lake Point regarding its contribution to the Public Works Project and to the wellbeing of Martin County and its citizens.

It reminds me of the playground bully who beats up his victim abd rubs his face in the mud and demands that he say : “Uncle”.

It feels like Alice in Wonderland where the Red Queen wrote the contract so that if you don’t grovel, pay out millions, and give away the store the result is:

“Off with their heads!”

But it’s not the Commissioners who will lose their heads. It’s taxpayers and the people who live here.

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