DEP's exchange offer with Hardy may be problematic - When an 'unwilling seller' becomes a 'holdout' and may be forced to sell

Naples Daily News

May 24, 2004

Naples, Florida - State land buyers have offered a land swap as a way to remove holdout Jesse Hardy from the middle of an environmental restoration project in Southern Golden Gate Estates.

Owners of the potential swap parcels are citing complications with any deal, and environmental advocates are warning against creating new problems by swapping with Hardy.

He has refused numerous proposals since 2002 from the state Department of Environmental Protection to buy his 160-acre homestead, including a $4.4 million offer earlier this year.

Hardy, 68, runs an earth-mining business on the land and plans to start a fish farm. He shares a modest wood-frame house with Tara Hilton, a member of a family Hardy befriended in Miami, and her 8-year-old son, Tommy, whom Hardy has raised like his own son.

Hardy's plans run afoul of a restoration project, part of an $8 billion plan to restore the Everglades, that would tear out roads and plug canals to return natural water flows to some 55,000 acres in the abandoned subdivision south of Interstate 75.

The DEP is set to ask Gov. Jeb Bush and the Cabinet on Tuesday to authorize eminent domain to force Hardy to sell.

The Cabinet has put off the decision several times to give the DEP and Hardy more time to work out a deal. It was unclear last week whether that would happen again.

Hardy's attorney, Bill Moore of Sarasota, said Friday that negotiations are at an especially delicate stage.

"We're almost there working it out with the DEP," Moore said. "I'm very positive about the whole thing, I think there's a good chance."

He would not talk about details, saying only that "nothing's been taken off the table."

"We're still discussing the full range of options," he said.

Last week, the DEP circulated a map labeled "Potential Exchange Parcels" that shows five parcels, one south of I-75 and four north of I-75. All of the parcels are privately owned.

Some of the parcels equal 160 acres but others are larger; Hardy would have his pick of 160 acres within those parcels, according to the DEP.

Hardy has attached two conditions to any swap: That he be allowed to continue his earth-mining business and plans for a fish farm and that he stay in the same school zone so Tommy can keep going to the same school.

The parcel south of I-75 is 90 percent wetlands, according to the DEP, something that could frustrate attempts to meet Hardy's earth-mining demand.

Parcels north of I-75, in an area known as Belle Meade, have obstacles too. They are in part of Collier County that has been a focal point of disputes between environmental groups and landowners over growth.

Two of the parcels are owned by Francis Hussey, a local doctor, and his wife, Mary Pat, who are challenging an environmental designation Collier County placed on their land. The designation comes with rules that prohibit earth-mining.

The designation was an outgrowth of a deal the Florida Wildlife Federation and Collier County Audubon Society worked out with another Belle Meade landowner.

The DEP's potential exchange with Hardy angered Nancy Payton, the Federation's field representative in Southwest Florida.

"I'm not comfortable supporting a strategy that's going to create a problem in an area we've had a long-standing campaign to protect from such abuses," she said.

She pointed out that another state agency, the Department of Community Affairs, approved the environmental protection designation and helped the county successfully defend it against the Hussey challenge. An appeal is pending.

Attorney John Vega, who represents the Husseys, said last week that the DEP has contacted him about a potential swap, but Vega raised concerns about whether it would work.

Vega said a swap with Hardy "doesn't seem feasible" because the Husseys already have a contract with another firm to mine the land, pending the outcome of the Husseys' challenge.

"I don't see that there's land that would be carved out of the (mining) proposal sufficient to help out the State of Florida," Vega said.

Two other potential swap parcels are owned by corporations represented by Naples businessman Paul Hardy, who is no relation to Jesse Hardy.

One of the parcels is proposed for a golf course development, and the land probably would be too expensive for the state to buy and swap with Hardy, Paul Hardy said last Friday.

That land is the only place Payton said she could support moving Jesse Hardy's earth-mining business because it is in part of Belle Meade designated for development.

The other chunk of land affiliated with Paul Hardy is within a Natural Resource Protection Area, or NRPA, under the county's growth plan.

"We could entertain the idea of selling the state 160 acres there," Paul Hardy said.

He said he has offered before to help Jesse Hardy find a way out of his dispute with the DEP.

"I know Jesse and would like to see him come out of this with as little bleeding as possible," Paul Hardy said last week.

He said he talked to Jesse Hardy a year ago about moving to land controlled by Hardy-related corporations. Jesse Hardy said no thanks.

A DEP swap proposal for land in St. Lucie County and another swap proposal offered by the DEP earlier this month got the same reception from Hardy.

Under that proposal, the state would have built a berm for $4.5 million around 35 acres of Hardy's land.

The state would have bought the other 125 acres associated with Hardy's earth-mining business or Hardy could have swapped it for 125 acres north of I-75, according to the deal.

Jesse Hardy could not be reached for comment last Friday, and DEP officials were at an agency retreat and could not be reached for comment either.



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