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Showdown at the Collier County Courthouse

NAPLES — In a stunning victory for Old Florida, historic preservation and the right of Floridians to protect their neighborhoods, Collier County Circuit Judge Hugh Hayes ordered big time out-of-town developers Florida Georgia Grove, LLC (FGG) and its mortgage-holding TD Bank sidekicks to restore public access to tiny Chokoloskee’s historic Ted Smallwood Store and Museum.

At the close of an all-day Sept.15 hearing in a Collier County Circuit Courtroom packed with cheering supporters, Judge Hayes gave FGG/TD Bank 30 days to take down the tall fence they erected and to build back the road – historic 75-year-old Mamie Street – which the Highland County developers chopped to rubble during a surprise bulldozer terrorism ambush in the early dawn hours of April 14, leaving the 106-year-old Smallwood Store, in Judge Hayes’ words, “for all intents and purposes closed, put out of business.”

If FGG/TD Bank do not complete the road by Oct.15, Judge Hayes warned the developers he would haul them back into his courtroom “to find out why!”

In Sagaponak, N.Y., author Peter Matthiessen, who profiled the Smallwood Store and old Chokoloskee in his novel Killing Mr. Watson, said the news was “great. I’m delighted common sense prevailed over this outrageous act. For once the good guys won!”

Any appeals relating to the order must be brought in front of Judge Hayes, who gave FGG/TD Bank little room for a reversal, commenting that all four legal factors necessary for an injunction – the likelihood of irreparable harm, the unavailability of an adequate remedy at law, substantial likelihood of success on the merits and considerations of the public interest – were in Smallwood’s favor. The Judge also ordered Smallwood to post a $10,000 bond against the restoration restoration of the road until the case officially ends.

“We would have been happy to win one point,” said Naples attorney Rachael Loukonen, who represented the Smallwood Store. “But we won all four points. I don’t see where they would have any appeal, especially before Judge Hayes.”

“I fully expect (FGG) to comply with the Judge’s order,” said TD Bank attorney Blake Paul, who emphasized “we didn’t take out any roads or put up any fences. We are just the bank holding the mortgage.” Calls to FGG corporate attorney/spokesman Jim Kelly of Winter Haven were unreturned by press time.

Collier County Commissioner Jim Coletta, who stood up against FGG when the group continued to pursue development plans even after the county withdrew its support, called the decision great news for Chokoloskee and for Collier County. He warned, however, “there are still a lot of things undecided, such as the condition of the new road and the landscape around it. If Smallwood and FGG can’t agree, then it will come before the court again.”

It was FGG’s contention that they owned the lower 983.64 feet of Mamie Street transecting their property as part of a 4.13 acre parcel (immediately north of the Store) which they purchased from STOF Holdings in 2004. They wanted the road closed to facilitate ill-advised development plans for the sleepy island, largest in the Ten Thousand Islands chain, a fishing paradise where the Gulf and the Everglades meet. “The Smallwood Store was collateral damage to them,” said Lynn McMillin, granddaughter of Store founder and Southwest Florida pioneer Ted Smallwood. “They knew Mamie Street was the one and only way to get to the Store. And they didn’t really care.”

County surveys show a 600-foot easement through mangroves on the east side of the Store, connecting to lime rock (private) Calusa Drive. However, an Army Corps of Engineers (ACOE) opinion, supported by all reporting agencies, declared the area a protected tidal basin ineligible for any road permit. “The laws are different today. What you could do in the early 1900s, you can’t do anymore,” McMillin pointed out. “What gripes me is how many times (FGG witnesses) said there’s no water in there. That’s a lie and they know it. The tide comes in and out of there every day.”

Though the ACOE opinion was not brought up in court, Judge Hayes was obviously familiar with coastal development issues after 35 years on the Collier County bench: “As we know, whether you live in this part of the United States or other parts, it wouldn’t take long before you would end up with, to borrow a local term, a ‘sippy hole’ in that piece of property. Based on all the permitting requirements that they would have to meet, and practically speaking, (a road permit) is not going to happen any time soon. Those types of processes take years rather than months.”

Citing Mamie Street’s documented 75 years of public use, Judge Hayes declared a “prescriptive easement,” pointing out the use of the road predated cars coming to the island (1956) and it was the only road one could take to reach the U.S. Post Office (located at the Smallwood Store until the mid-70s). There was also ample evidence, from local citizens and public officials that suggested Mamie had been paved, re-paved and maintained by the county for decades.

Irritated at FGG’s unannounced April ambush, staged sans any permission (in a misguided plan to force the government’s hand in creating a second access to the Store through the protected mangroves), Hayes admonished FGG managing partner Gary Blackman: “You should not have torn (Mamie Street) up until you found out you could.”

“They knew that if they announced their plans to take out the road, we would have gone to court and obtained a cease and desist order,” Commissioner Coletta said. “They knew it was wrong. They had the gall to call the sheriff requesting protection!”

FGG argued that Collier County city attorneys officially declared Mamie Street a private road. In fact, county attorney Steve Williams (who, ironically, assisted Loukonen in presenting the case) was one of those officials. But Hayes ruled: “Our case law supports the government entity not being bound by the statement of their employee and so that law is clearly applicable to the situation we have as well. And that is particularly true with the particular individual that, you know, that they discussed this issue with. I am sure he meant well, but I am not sure that he would have risen to the level of culpability to bind the county government. So I think that is pretty well-supported in the evidence.”

Earlier in the day, in a shocking display of macho bravado, Blackman narrated a self-made video in which his large pickup truck ran through the tidal basin stand of mangroves – an attempt to show that large vehicles could transverse the easement and that Mamie Street was not the only access to the Smallwood Store. When an attorney remarked at the tight path, which caused mangrove branches to scratch the truck’s sides, Blackman responded: “I’m not responsible for mowing other people’s lawns. But give me two men, two chainsaws and two hours, and you can drive a semi through there.”

“I didn’t think you were allowed to say the word ‘chainsaw’ when referring to mangroves in Florida,” said a shocked J. Robert, a Marco Island musician who organized a peaceful rally of colorful signs and folk songs on the courthouse steps. “Thank God for Judge Hayes. He saved the Last Frontier.” Robert and famed Miami folkie Valerie Wisecracker performed for the media cameras outside the last hearing, wailing out songs like “Stop Runnin’ My Florida Home Into The Ground.”

“We were concerned when very few supporters showed up for the first hearings, so we wanted the Judge to realize there was a whole lot of support for the Smallwood Store and Old Florida out here,” said Wisecracker, who has a getaway cabin in nearby Everglades City. The support was statewide – even Florida storyteller Butch Harrison made his way to Naples from Live Oak near the Georgia line.

“Things not lookin’ so good for you today, huh? Oh and hey, when you put back that road, don’t waste your time trying to hire anybody from around here. Nobody gonna work for you.” – Heard in the court house elevator at lunch break on the final day. It was a Chokoloskee fisherman speaking to FGG managing partner Gary Blackman, who did not acknowledge the comment.

Blackman admitted FGG had “a couple of ideas” regarding the development of the tract, which had been in the Smallwood family since the town was platted, sold to the Seminole Tribe in the late ’90s, then sold to FGG in 2004. FGG was merely responding to the county’s professed need for a public boat launch and marina in that area of Collier County. “The idea was to develop the land into what the county was looking for and then sell it to them,” said FGG attorney Jim Kelly. “Unfortunately, that didn’t happen.”

But one fact was certain. No matter what the development, Mamie Street had to go.

The Smallwood Store’s vaunted place in the histories of Collier County, the Seminole Tribe and the State of Florida provided a “unique reason” to grant the injunction, Hayes said: “This property, at some period in its history, was able to get on the National Register of Historic Places. And that does give it a unique overlay that most properties may not have, and it makes it unique in the facts of our case. I doubt there is anything like this anywhere in the county, anywhere in the state for that matter.”

“Any history of Collier County has the Smallwood Store in it,” said county attorney Williams in his closing remarks.

The order granting the temporary injunction and ordering the restoration of Mamie Street came at the end of two days of hearings in which petitioners Ted Smallwood’s Store Inc. (a not-for-profit corporation) and Collier County argued minutiae ad infinitum, filled with surveyor’s jargon, about roads and easements, maps and measurements. Often, the proceedings took on the character of a Saturday Night Live skit: FGG attorney Steve Chase consistently called Mamie Street, which stretched across half the island, a “driveway” and referred to the 600-foot mangrove footpath as a “road;” former Highlands County engineer Carl Cool took the witness stand and, with a straight face, declared that he had visited the rubble site that very morning and by measuring chunks of road, came up with a profile of Mamie Street that put the street’s width at 13 feet – a ploy to show that Mamie could not have been a certified county road. In the audience, Goodland resident Colin Kenny shook his head: “I see where they have the fox measurin’ the chicken coop now.”

In fact, aerial photographs provided by Google Earth show the two-lane road much wider than 13 feet, able to handle two lanes of traffic. “There were a lot of lies in this courtroom today,” McMillin said. “They knew before they walked in the door they could not win, so they resorted to lies. I’m so glad the Judge saw through it all.”

Many in the courtroom audience were local business people, such as Joanie Griffin, owner of Joanie’s Blue Crab Café in Ochopee; Bob Miller from the Everglades City Oyster House; Kenny Brown of Outdoor Resorts; and Corey Billie, owner of Corey Billie’s Airboat Ride on the Tamiami Trail near Collier-Seminole State Park. The Road’s forced closure by FGG (which owns the property containing the road north of the Store) has been “devastating to the area economy,” McMillin said. “I can’t tell you how many busloads – school kids, tourists, you name it – that have turned around and left the island when they saw the fence.”

All saw a noticeable drop in business during the late spring and summer months. Based on past years, tourism counts were down more than 15,000 for those months. Several restaurants have discussed a class action suit against FGG. “I’m just like all the restaurants, sitting around all day and waiting and nobody shows up,” said Billie, a Seminole Tribal citizen who showed up both days of the hearing to show support for the McMillins. “I get quite a few referrals from there. It’s the attraction that brings people here. That’s where they pick up our brochures and ask questions – we all benefit from the Smallwood Store.”

“I thought it was over . . . and then here they come again!” – Lynn McMillin

Following the Judge’s decision, FGG attorney Steve Chase had one more idea. He wanted to put Mamie Street somewhere else: “Your Honor, can I ask for a point of clarification? Does the court care where the access is across my client’s property? If we provide the court and the parties with a temporary access that you ordered, is it OK if we relocate, as long as they have comparable access, so we are not dissecting the entire parcel?”

Judge Hayes: “It is clear that roadway, for lack of a better term, guts your property and makes it questionable economically, as far as development is concerned . . . I think I might stipulate to it, if the government and the Smallwood Store stipulated to it . . . I would have to let affected persons speak, so to speak. Because I mean it is a public right of way in this concept, and there are many other people who say, ‘Hey, you know, I don’t care what the county says’ or ‘I don’t care what Smallwood says, they are selling me out and I want to object.’”

“But for today’s purposes, I can’t agree to that because it is really not in front of the court. That is still up to the parties to look at, but it doesn’t seem to be feasible really at all. I think we will all be retired by the time that possibility actually happens.”

Was FGG trying to subvert Mamie Street’s prescriptive easement by changing the footprint of the road? Attorney Loukonen could only laugh when asked the question after the hearing closed. “I am not going to say anything negative about Florida Georgia Grove. But you heard what they said, I heard it and so did the Judge. I don’t think anyone in that courtroom was fooled.”

Commissioner Coletta agreed: “These guys were hard core. They tried to create a case that would force the county to jump in and buy the property. Remember, they bought that property at the height of the real estate boom and when that all turned around, they were desperate for a way out without losing their investment. There is very little anyone can do down there. The people of Chokoloskee were clear. They did not want it. End of story.”

Coletta heads a committee planning a fundraiser for the Store scheduled for Saturday, Nov. 5 (noon until 6 p.m.), at the Smallwood Store site, featuring Seminole Indian crafts and displays, as well as musical performances by Chief Jim Billie, Valerie Wisecracker, Fiddlin’ J. Robert, Dog Peter Pat and other Florida folk artists. “Now is the time to restore the Museum to its former glory, complete the necessary repairs and take care of the legal bills. We need to get this precious landmark solvent, so it can survive these emergencies, whether manmade or natural.”

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