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HomeMy WebLinkAbout2008 01 14 Regular 601 Legal Opinion of City Attorney Re: Conservation EasementsCity of Winter Springs Regular Meeting December 10, 2007 011408_COMM_Regular_601_Opinion_Letter Easements Page 1 of 1 COMMISSION AGENDA ITEM 601 January 14, 2008 Regular Meeting MGR. ~ /DEPT. Authorization REQUEST: City Manager and City Attorney requesting the City Commission to consider the Legal Opinion of the City Attorney regarding Conservation Easements and to provide whatever Direction the Commission deems appropriate. PURPOSE: This agenda item is needed to respond to the Commission's request for alternatives for the management and enforcement of conservation easements. CONSIDERATIONS: November 26, 2007 the Commission directed the City Manager to schedule an agenda item for discussion of the October 1, 2007 City Attorney Opinion Letter on the management and enforcement of conservation easements. FUNDING: N/A RECOMMENDATION: It is recommended that the Commission review the City Attorney Opinion Letter and provide direction the Commission deems appropriate. ATTACHMENTS: October I, 2007 City Attorney Opinion Letter Consent Informational Public Hearin Re ular X COMMISSION ACTION: BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. A ttarne}s at L aw Debra S. Babb-Nutcher° O{{ices in Orlando Kissimmee, Cocoa, Tara L. Barrett Joseph E. Blitch Ft. Lauderdale & Tampa Vivian P. Cocotas Usher L. Brown' Scott J. Dornstein Suzanne D'Agresta° Mitchell B. Haller Anthony A. Garganese° Katherine W. Latorre J.W. Taylor Terri E. Oster Jeffrey S. Weiss Amy J. Pitsch 'Board Certified Civil Trial Lawyer °Board Certified City, County & Local Government Law Board Certified Appellate Practice October 1, 2007 The Honorable Mayor John F. Bush and Members of the City Commission c/o City Clerk 1126 East State Road 434 Winter Springs, Florida 32708-6912 Erin J. O'Leary' Catherine D. Reischmann° William E. Reischmann, Jr. Of Counsel Re: Assignment of Conservation Easement of Winter Springs Golf Course Dear Mayor Bush and Members of the City Commission: This correspondence is in response to your request on September 24, 2007 for an opinion as to whether the City has the right to assign an interest in the Winter Springs Golf Course conservation easement to a third party. In accordance with section 704.06, Florida Statutes, said easement was granted to the City by Big Cypress Associates, Ltd. on December 26, 1984 and is recorded at Book 1604, Page 131 in the Official Public Records of Seminole County, Florida ("Easement"). EXECUTIVE SUMMARY The express terms of the Easement and section 704.06, Florida Statutes grant the City the right to assign an interest in the Easement to a third party. However, the third party must be a government agency, a charitable organization, or a trust, and be an eligible donee under the Internal Revenue Code. In addition, the third party must agree to fulfill the conservation purpose of the Easement. LEGAL ANALYSIS Under Florida law, conservation easements may be granted and acquired pursuant to section 704.06, Florida Statutes. In 1984, the Easement was granted to the City 225 East Robinson Street, Suite 660 • P.O. Box 2873 •Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net October 1, 2007 Page 2 pursuant to the authority set forth under this section. Section 704.06(2}, Florida Statutes, provides that conservation "easements may be acquired in the same manner as other interests in property are acquired .and shall not be unassignable to other governmental bodies or agencies, charitable organizations, or trusts authorized to acquire such easements, for lack of benefit to a dominant estate." (emphasis added). In addition, the following entities may hold a conservation easement: Any governmental body or agency, or by a charitable corporation or trust whose purposes include protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving sites or properties of historical, architectural, archaeological, or cultural significance. § 704.06(3), Fla. Stat. (2007). Therefore, Florida law expressly prohibits making a conservation easement unassignable. In other words, a conservation easement may be assigned. If assigned, however, Florida law requires that a conservation easement be held by a government body or agency or charitable organization or trust organized for conservation purposes. Accordingly, because the Easement was granted to the City under section 704.06, Florida Statutes, the City may assign the Easement to qualified third parties. In addition, the express terms of the Easement are consistent with the aforementioned statute and also recognize the City's statutory right to assign the Easement. On page 4 of the Easement, the Easement provides: TO HAVE AND TO HOLD the said Conservation Easement and Restrictions unto the said Grantee, its successors and assigns forever, subject to the condition that the Grantee and its successors and assigns may not transfer said Conservation Easement and Restriction, with or without consideration unless: (1) the Grantee as a condition of the transfer. requires that the conservation purposes continue to be carried out and (2) the transferee is an eligible donee as that term is defined in the Internal Revenue Code and regulation issued thereunder. (emphasis added). Therefore, the Easement grants the City the right to assign the conservation easement to a third party, so long as the assignee is an "eligible donee" under the Internal October 1, 2007 Page 3 Revenue Code' and the assignee agrees to carry out the conservation purposes of the Easement. If the City Commission desires to assign an interest in the Easement, the details of the assignment will need to be structures to comply the conditions set forth in section 704.06, Florida Statutes, and in the Easement. I look forward to discussing this matter at a Commission meeting in the near future. Sinc y, Anthony A. Garganese City Attorney AAG:jaw cc: City Manager ' In general, an "eligible donee" under the Internal Revenue Code appears to be either: (1) a governmental entity with the purpose of retaining the conservation easement for public purposes, or (2) a corporation, trust, or community chest, fund or foundation operated religious, charitable, scientific, literary, or education purposes, or (3) anon-profit corporation organized under section 501(c)(3), which is a private foundation or organization which receives more than 1/3 of its support from charitable contributions including grants, gifts and membership fees. See Internal Revenue Code, Section 170 (h)(3) (defining "qualified organization" for charitable donation purposes).