View Full Version : Disabled vet's home saved – maybe

04-21-04, 06:09 AM
Disabled vet's home saved – maybe
Former SEAL continues long fight with government over eminent domain

Posted: April 20, 2004
1:00 a.m. Eastern

By Sarah Foster
© 2004 WorldNetDaily.com

A disabled Navy veteran, whose David-and-Goliath battle with the state of Florida to save his home is being closely followed by property-rights advocates across the country, won a brief reprieve when Gov. Jeb Bush and the Florida Cabinet postponed a final decision on whether to take his land by eminent domain as part of the $7.8 billion Everglades Restoration Project.

The 'hole in the doughnut'

Environmental groups and DEP officials claim Hardy's 160-acre inholding -- dubbed "the hole in the doughnut" -- is vital to the success of the restoration effort, and that the management of surrounding land and the acquisition is too important to be stalled any longer by a lone property owner. Florida Audubon and the Florida Wildlife Federation representatives present at the hearing declined an opportunity to testify Tuesday, but filed letters in support of beginning condemnation proceedings.

"The Federation appreciates the state of Florida's repeated attempts to negotiate a fair settlement with Mr. Hardy," wrote Nancy Payton, field coordinator for the Florida Wildlife Federation and a primary promoter of bond measures to fund increased government land purchases. "Despite the state's extraordinary efforts over the years, Mr. Hardy has made it very clear in his public statements that he is an unwilling seller."

But Hardy and his attorney, Bill Moore of Sarasota, and engineer Richard Thompson, of Lehigh Acres east of Fort Myers, insist the land is not vital to the project, in part because it is several miles north of the area to be flooded and will never be under water. The plan consists of building three new pump stations with spreader canals south of his property to draw water down from north of Interstate 75.

State engineers say water from the project might back-flood onto the Homestead, creating safety and liability headaches for the state of Florida.


Rather than voting to begin condemnation proceedings as expected, the three-member Cabinet last week gave the state Department of Environmental Protection two weeks to find a way that would allow Jesse Hardy, 68, to keep his property and at the same time continue the project without running up the cost or leaving the state open to liability.

The governor said he is "completely supportive" of the restoration project, but he urged the DEP to work with Hardy "to accommodate his desire to stay on his property and our needs to make sure that [the] solution is scientifically sound and doesn't cost us an arm-and-a-leg forever and ever" in legal fees and extra maintenance.

"If we can get some new thinking as it relates to the engineering, … get consensus about some of this and costs can be looked at, I think we ought to try it one more time with a fresh approach," said Bush.

If the Cabinet eventually gives the go-ahead to seize the property, it would be the first time the state of Florida has used its power of eminent domain to take homesteaded land, so this is a precedent-setting case.

It was the third such reprieve for Hardy. The meeting was essentially a replay of proceedings last year when, in three separate hearings, the Cabinet discussed the issue of condemnation of his property. At the end of the third hearing in mid-March, both sides were ordered back to the table and told to find a mutually satisfactory solution. No deadline was set for completion of negotiations.

The deferral surprised parties on both side of the issue, especially the property rights advocates in the audience, many of whom had driven hundreds of miles from southern Florida to Tallahassee, the state capital, to speak on Hardy's behalf despite not being optimistic.

"I really felt this was the best thing we've seen so far," said Cindy Kemp, president of the Property Rights Action Committee in Naples, Fla. "It felt very positive."

As WorldNetDaily reported, Jesse Hardy, a 12-year Navy veteran and former SEAL, has lived since 1977 at the end of a dirt road in rural Collier County, in a simple wood-frame house he built himself on a 160-acre parcel he bought in 1976 for $60,000. The county refused to allow electricity to be provided to the area, so Hardy relies on propane and a gas-powered generator.

Since 1995 he has shared his home with long-time family friend Tara Hilton -- who moved in after her mother died -- and her son, Tommy, who is now eight.

"I've told Tommy I brought him and his mama here when he was just a little bitty baby so I could be a daddy to him," Hardy explains. "I promised Tara and her mama that they could always have a home with me and I'd be Tommy's daddy."

The homestead is about 15 miles east of Naples and less than two miles south of Interstate 75 that serves as the northern border of a 55,000-acre government buyout area called Southern Golden Gate Estates. The buyout area is connected to the massive Everglades Restoration Project, which covers most of southern Florida and is intended to restore natural water flows by deconstructing roads and plugging canals built by developers years ago. It requires the relocation of tens of thousands of people.

Project promoters say the SGGE section would provide water for the Fakahatchee Strand State Preserve, Ten Thousand Islands and future drinking water for the city of Naples. Construction is scheduled to begin in 2006.

For Hardy, money is not the issue: he's rejected several offers each topping the other. The first was $712,000 in Oct. 2002. When he turned that down, $1.4 million was dangled before him, then $1.7 million. Just days before the hearing it was upped to $4.4 million. He still said no.

It's not that he's opposed to the project.

"If they think they can increase the water table out in this area it will be OK. If they want to rehydrate the Southern Golden Gates Estates, that would be fine," he says.

But Hardy has a definite idea of how his land could be used, one he says would complement and enhance the restoration, not hurt it. He has nearly completed a large pond (the first of four) for a fish farm and recreational fishing operation, a project approved by Collier County that granted him permits in 2001. It's a mutually beneficial arrangement: The county buys the excavated rock to build roads.

"[The first pond] is filled with water and there are fish there, and it looks real pretty," he told WorldNetDaily.

Hardy isn't alone in his enthusiasm for a fish farm. He says besides Collier County the state Department of Agriculture is in favor of the plan and would like to see the project up and running.

Fresh approach

For Hardy, a "fresh approach" might be to sell "flood rights" where the government buys an easement over a property and acquires the right to flood it at a later time. And it would be an arrangement where he's able to maintain an aquaculture and recreational fishing business, which shouldn't be too difficult with an endorsement from the Department of Agriculture.

But DEP officials will settle for nothing less than "fee simple" acquisition; that is, complete ownership with unrestricted rights over disposition.

Government attorney Bob Scanlon explained to the Cabinet that the state of Florida had acquired 19,000 parcels of land in the target area, some 1,858 of them through the filing of 300 lawsuits, always presenting the view that fee simple was "required."

"We acquired fee simple title in all those parcels," he boasted. "We've presented orders-of-taking over 300 times and always taken the position that we have to have fee simple. … the judges in Collier County have given us fee simple for all 1,861 pieces of land."

"They were not willing sellers, even though they weren't homesteads," he added.

Wildlands Project

Columnist Henry Lamb has identified the restoration of the Everglades as a major component of the Wildlands Project, an ambitious environmentalist scheme to transform the United States by "rewilding" 50 percent of the land area of the lower 48 states to the condition it was before Europeans arrived. This means placing much of the land in government ownership; closing vast areas to human use, including farming; and concentrating the population in cities rather than small towns, farms and suburbs.

Funding a concept as grandiose as the Wildlands Project doesn't seem to be a problem. Florida had embarked on a land-buying binge even before 1999 when voters approved Florida Forever, a $3 billion, 10-year acquisition program. Most of the coveted properties in the SGGE area have been acquired using a carrot-and-stick strategy – offering large sums of money for a property and threatening to use eminent domain against property owners who don't want to sell.

Recently the last holdout in the area besides Hardy capitulated, leaving him and the Miccosukee Indian Tribe that owns 800 acres in the area and is fighting condemnation of its property in court.

Although homesteaded land is generally exempt from condemnation, the Florida Forever program allows the government to use it if two good-faith offers to buy a piece of property have been made and rejected. However, to merit such action the land must be of such significant environmental importance that not owning it would hamper the management of other state-owned land.

That's what the argument between Hardy and the state is about.

04-21-04, 06:09 AM
Hardy counters with a report he commissioned by Thompson, who used government figures that show the homestead at 11-13 feet above sea level is too high to be flooded by back-flow and that the project might actually lower the water table.

"Based on the information received from the SFWMD [South Florida Water Management District] and Collier Country Government, the proposed SGGE Restoration Project does not appear to have an adverse impact on the property owned by Jesse J. Hardy," Thompson writes.

"It does not appear, in my professional opinion, that the project will increase the flood risk or potential for the property. [Nor is state acquisition of the property] required for the completion of the SGGE Restoration Project."

In the chance the area is flooded, Hardy says he's willing to sign a waiver absolving the state of liability for damages.

Although Hardy couldn't attend because of illness, he had a number of representatives and grassroots supporters eager to plead his case, some of whom had traveled hundreds of miles to be there.

Bureaucratic 'tunnel vision'

Hardy's attorney Bill Moore reminded the Cabinet that they had gone through this same scenario last year. Then, as now, DEP was supposed to negotiate with Hardy but never did. He said other options should have been discussed besides fee simple acquisition, but the staff refused.

"I think what's happened here is that there's a certain amount of staff insistence, that the staff has been working on this so long that they have developed what's called the 'tunnel vision of the bureaucracy,'" Moore said.

"Every time we deal with the DEP and we're told to go back and negotiate, they come back and say how much more money do you want?' They're not getting the point," he added.

Bush asked if Hardy would be willing to discuss the commercial fishing operation?

Said Moore: "Absolutely. …The kind of negotiation you're talking about is what we expected. What we got instead was "how much money do you want?" I said, "No, it's not about that." "Well, how much money do you want?" That's all we could talk about with them." … We don't want to talk about that. [There are other issues to discuss] If there's a problem with the fish, you could have some kind of restrictions. … If you think they're noxious species, we could restrict those."

'A place for kids to be kids'

Tara Hilton drove 450 miles from south Florida to Tallahassee with Tommy to speak on his behalf.

"Jesse is Tommy's father and my best friend," Hilton told the Cabinet, her voice breaking at times with emotion.

She said the homestead was "a good place to raise kids," and pointed out that when other children are indoors watching television and playing video games, Tommy is outside "being a little boy."

Hilton outlined the vision she and Hardy had for the area, and her fear that the land will be closed off to everyone.

"We have a dream to be fish farmers," she said. "We want to do it so the people of Collier County can bring their sons and little girls to fish, play in the dirt, and have a place for kids to be kids. All these places have disappeared. And I believe if they take our land they're gonna put a gate up right there and no one will be out there to use the property any longer."

State Financial Officer and Cabinet member Tom Gallagher asked what they'd do if there were a flood from the backflow.

"That's no problem. If it floods we'll swim out and give it to you," Hilton answered.

Tommy planned to say a few words and had drawn a picture for the governor of his home, with a stick figure next to it he says is Jeb Bush coming to visit. But when the moment came to make the presentation, Tommy was suddenly bashful when it came to words and forgot all about the picture. Still, that didn't stop him from running up to shake the governor's hand.

Golden opportunity

Norm Davis, of Take Back Kentucky, has spent over a year organizing a similar group in Florida.

"You're missing out on a golden opportunity," Davis said, explaining he vacationed yearly in Naples and had noticed a lack of recreational opportunities in the area – a lack that could be somewhat mitigated if Hardy were allowed to stay.

"Jesse would like to provide the aquaculture pond," said Davis. "He'd like to provide an area where the people can go and just enjoy what you're doing [with the restoration]. … I feel the state, the county and Jesse could all work together to add the access roads to the pumps. You could work on a recreational facility for the people in this area, even if it did take some redesigning. Everyone could work together."

'We'll remember in November'

Cindy Kemp and her husband Mark made the six-and-a-half hour drive from Collier County to Tallahassee on the eve of their 24th wedding anniversary to testify the following day.

"Even though it's a pleasure and an honor to meet with you, I would have preferred to have taken some romantic vacation with my husband," Kemp said, directing her remarks to the governor. "But the property-rights community is so concerned about what is happening to Jesse Hardy and everyone's property rights in Naples that my plans changed."

Kemp urged that officials work with Hardy, continuing the restoration but allowing him to remain on his homestead, at the same time opening to the public the adjacent government-owned land – something not in the official plans at this time.

"We want public access to our land; please don't fence us out," she said.

Kemp envisioned a "state-of-the-art nature center" and a "living museum" on the government land, with links across to Hardy's aquaculture farm and recreational fishing. People would be able to walk down to the pumping stations to see the restoration.

"With over 75 percent of Collier County in preservation, it's hard to find a place for such activities," Kemp said.

"It could be called the Jeb Bush Environmental Learning Center," she suggested.

"Please do not eminent domain Jesse Hardy," she urged in conclusion. "The property-rights community is watching. All that we ask is that our Constitution and our rights are respected. Think of the Golden Rule – and we'll remember in November."

Editor's note: An audio recording of the Florida Cabinet meeting is online at www.myflorida.com.

Information about Jesse Hardy and his fight to save his land is posted at www.jessehardy.com.