Easement agreement struck to protect parts of Naples Beach Hotel's golf course but not a done deal
After long and hard negotiations, a deal has been struck on a conservation easement designed to protect the former Naples Beach Hotel's golf course.
Or at least 70 acres of it.
Naples City Council received a draft of the proposed agreement late Tuesday, then heard a presentation on it Wednesday, reserving a decision on it until next year.
While expected to be a happy and celebratory presentation and discussion, the mood turned sour after an attorney with the city's new outside firm suggested council might want to look at ways to coerce or force the developer to sign the agreement sooner, rather than later — before they're ready or otherwise willing to do it.
"They might be looking for some changes throughout their zoning or anything like that over the next couple years, that we now hang over their head to get this document signed," said Jenna Winchester, an attorney with Dean, Ringers, Morgan & Lawton PA.
Much of the debate at the council meeting centered around how to effectuate and enforce the agreement, rather than the details that are in it.
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The Athens Group agreed to an easement as part of City Council's approval of its ambitious redevelopment plans for the 125-acre landmark hotel property off Gulf Shore Boulevard back in 2019.
City Council at the time chose not to include a third party in the accord, although the developer seemed open to the idea.
The current City Council sees it differently, with a desire to put more teeth into the perpetual easement through the involvement of the North American Land Trust. The trust holds more than 550 conservation easements in 23 states, including Florida, protecting more than 133,000 acres of privately owned land.
Negotiations between the trust and The Athens Group started in July, with the first draft.
John Passidomo, the Naples attorney representing The Athens Group, told City Council reaching an agreement took a "vigilant effort over an extended period of time," and the developers are glad to "come to closure" on the document.
While the developers, he said, are proud to have been part of the amenable negotiations over the past five months, Winchester's tone and tenor took him and his clients aback.
Future approvals for the project can't hinge on the signing of the agreement, Passidomo told City Council.
"We can't get off on that tack," he said. "That's inappropriate and it's illegal."
He objected to the tactic, saying he's confident the mechanics for getting the agreement in place can be worked out in a much more cooperative way, to the satisfaction of both the city and the developers.
When it received its development approvals for its project, The Athens Group agreed to sign the perpetual easement before the city's issuance of a certificate of occupancy for the first "principal" structure in its redevelopment project, most likely the first condo building. That's still the intent — and desire, as the timing offers assurance the city will hold up its part of the bargain, allowing the project to advance, Passidomo said.
Jay Newman, the developer's chief operating officer, told City Council he was outraged by Winchester's comments about the possibility of forcing its hand to sign the agreement, which he emphasized is completely voluntary on its part.
"This is tantamount to extortion," he said. "It's absolutely illegal."
This kind of legal positioning from one of the city's lead attorneys, he said, puts a cloud over the process and outcome of the negotiations.
"This thing is in my opinion not going in a positive direction," Newman said. "I really thought today we would be embracing a lot of hard work that began in July."
He asked that Winchester retract her statements.
The attorney apologized for her comments, saying she didn't mean to offend anyone and she might have chosen to use the wrong words in sharing her legal advice and opinions with the city.
"I do believe I have to take back my words because it sounds like they came across very inartfully and I certainly did not intend them to do so," Winchester said.
She emphasized negotiations have been extremely cooperative on all sides, but she wanted to convey to City Council that she believes the draft document, even if unsigned, has legal weight.
"The spirit of this document is there," Winchester said. "Everybody knows now we've got the language defining the whole purpose of this document. It's protecting what you needed it to protect. It's protecting what you wanted it to protect."
Councilman Gary Price said he too found the attorney's comments offensive, especially the words "hang over their head."
He said the spirit of cooperation on all sides has impressed him.
City Council heard several options for moving ahead with the conservation easement to try to ensure it gets formally executed.
One of the options is to put the agreement in escrow, to be held by an outside agent until conditions are met and the document is signed, while another is to reach a memorandum of understanding spelling out how the easement will be effectuated in the future.
The land trust's board still has to vote on and approve the terms of the conservation easement.
Councilman Ray Christman remarked that he's encouraged by the progress that has been made, with a recommended document hashed out that seems agreeable to all sides that have been at the negotiating table for months.
"We are inside the 10-yard line, looking at the goal line," he said. "And I'm optimistic that we can find a way to deal with these remaining issues."
He said he hopes to reach the goal line by the next council meeting in January.
The Athens Group plans to raze the beach hotel and build a five-star 216-room resort with "best-in-class" residential condos along both sides of Gulf Shore Boulevard North. Plans call for up to 185 homes.
The high-end project is known as Naples Beach Club.
The Athens Group has secured an agreement with Four Seasons to operate the smaller, but more upscale resort that will replace the storied waterfront hotel that opened in 1946 — at 851 Gulf Shore Blvd. N.
The easement became a hot-button issue earlier this year when The Athens Group started publicly sharing the possibility of shrinking the 18-hole golf course to 10 holes and creating new recreational activities on open, green space, including an instructional school for golf.
After hearing so much opposition to those potential changes from the community, the developer tabled them, with no plans to alter the championship golf course currently in the works.