Maggy Hurchalla speaks out regarding Lake Point
Maggy Hurchalla
December 5, 2017
I’m Maggy Hurchalla. For the last five years I’ve been involved in a SLAPP suit. That is a Strategic Lawsuit Against Public Participation. Look it up in Wikipedia. They will tell you it is legal bullying meant to intimidate, bankrupt, exhaust and SHUT UP critics.
Martin County and the SFWMD also got slapped in the case of Lake Point vs. SFWMD, Martin County, and Maggy Hurchalla.
I can’t talk about that lawsuit because it is, as they say, “ongoing. “ The trial date has been set and moved three times. It is now set for Feb 5. I am looking forward to the time when we can talk about the issues and facts out loud and under oath.
In August the SFWMD settled with Lake Point. In October, Martin County settled. I’m now the last one standing. My friends keep warning me to check my brakes when I come to a hill, to wear a proper bathing suit while swimming and not to drive after one drink or grab guys by inappropriate parts.
Last week Lake Point’s favorite media outlet announced that “a criminal investigation of Heard, Hurchalla and others by a grand jury is currently underway.”
This week their lawyers wrote me a letter saying that it was possibly a poor choice of words. They apologized and admitted that it might be possible for readers to think that
“a criminal investigation of Heard, Hurchalla and others by a grand jury is currently underway”
meant that
“a criminal investigation of Heard, Hurchalla and others by a grand jury was currently underway”
This week two current commissioners and one former commissioner were attacked by our own legal system in arrests and charges that have everyone wondering why the good guys get arrested for jaywalking while the bad guys get away with murder.
But there comes a time when someone has to point out that the Emperor has no clothes. I can talk about the settlement agreements the Water District and the County agreed to. They are going to cost you and all the residents of South Florida. They are going to change Florida water law and reinterpret the meaning of our County rules and regulations. The public officials who approved them are pantless.
To talk about the settlements I need to tell you what Lake Point is all about.
I will try to do that as carefully as possible which means dully with gory details left out. You can find out more exciting parts of the story in books and documentaries and websites.
The Lake Point property is a little over 2000 acres in western Martin County. It is just south of SR 76 and the St. Lucie Canal and just a few miles east of Lake Okeechobee.
In 2005 Trucane Sugar (Florida Crystals) sold the north half to the Blakely’s who planned a 20 acre agricultural subdivision for polo players. They obtained preliminary approval from Martin County.
The SFWMD first got involved in the Lake Point property in 2006. The District director proposed purchasing the 2000 acres from the Blakely’s and Trucane for $68 million. The proposal was rejected by the District Board.
The Blakely’s continued work on phase I of the project. In December of 2007 they asked the County Commission to amend their development order because they had found rock on site and the rock would hurt the horse’s hooves unless hauled offsite. The County amended the subdivision’s development order to allow rock mining.
In January of 2008 phase 1 of the property was purchased by the Lindemann Group. They proposed a project that they said would help save the Everglades, supply dry season flows to the Loxahatchee River and reduce damaging discharges to the St. Lucie Estuary.
Martin County was promised that a 150 acre conservation area would be deeded to them for public use free of charge.
This area had been set aside, along with an active eagle’s nest, as a preserve area in the Blakely’’s approved development .
In September of 2008 the Lindemann Group exercised an option with Trucane to purchase phase II – the southern half of the 2000 acres.
In 2008 and 2009 Lake Point entered into a development contract with the SFWMD to create a public works project. Lake Point would make money excavating two lakes amounting to 1000 acres and selling the rock. The District would get a free piece of land. Lake Point would provide fill and valuable earthwork to build a stormwater treatment area on the east half of the property. The two excavated lakes would be on the west half. You can see the project on Google Earth.
In the original contract Lake Point would be allowed to mine rock from the two stormwater lakes for 20 years.
In the same time period Martin County entered into an Interlocal Agreement with SFWMD setting certain conditions for the project. Lake Point would be designated a public stormwater project when the land was donated to the District. This would free them from going through the long formal permitting process and allow a staff review to establish compliance with Martin County regulations.
Lake Point later became interested in selling water to utilities in Palm Beach County and south. They made their first public proposal in September of 2012 to the West Palm Beach City Council.
In January of 2011 Lake Point received their DEP permit for the stormwater lakes. In January of 2012 they received their Corps permit.
In early 2013 Martin County staff recommended filing a Notice of Violation. The project was not shut down and continues to operate a commercial rock mine.
That same January staff of the SFWMD informed Lake Point that their contract did not allow them to sell water.
Lake Point sued the SFWMD, Martin County and Maggy Hurchalla for breaching contracts and interfering with contracts. The suit has been going on since that time.
Lake Point later sued Martin County for failure to turn over public records.
On August 11 2016 Judge McManus issued an order in the case that concluded:
The Acquisition and Development Agreement is not ambiguous and it clearly states nothing about selling water or reserving the rights to sell water.
So it looked like the District had won, but in August of this year they chose to lose by signing a settlement agreement that said Lake Point could sell water.
That settlement did a number of things that taxpayers and residents need to know about:
- On the water issue they set a precedent that may change Florida water law. Right now the people of Florida own the waters in the aquifer beneath our feet and the waterways around us. Users can get a temporary water use permit for a reasonable beneficial use. The settlement appears to let Lake Point sell its “irrigation rights” to another user with a different use. That appears to privatize public water and give permit holders permanent ownership
- The original agreement ended in 2029. Lake Point was allowed to mine rock for twenty years. It provided for turning over land to the District for stormwater treatment areas early in the 20 mining term. The new agreement lets Lake Point mine for 50 years and doesn’t require that any land be turn over to the District until 2067. A lot of us think that if we haven’t saved our river by then it will be dead.
- The settlement awards a no bid contract to Lake Point to supply riprap to SFWMD for the next 15 years. Whether they need it or not, the District will have to buy 50,000 tons a year of riprap from Lake Point or pay a large penalty. If a court rules this year that the no-bid exclusive contract is illegal, taxpayers in South Florida will be required to pay Lake Point $19 million dollars.
- The original agreement was a trade. Lake Point would get to dig rock for 20 years. The District would get free land for a stormwater treatment area, and Lake Point would provide valuable fill and earthwork for the stormwater treatment area and would complete the stormwater lakes to permit specifications. The settlement removes Lake Point’s obligation to do any of these things. They no longer have obligations. They can sell rock for 50 years and sell water. In 50 years the District might use the 800 acres and the 1000 acre holes in the ground for some environmental purpose, but there is no requirement to do so. That’s the District settlement. The Martin County settlement agrees with everything in the District settlement. It appears to give Lake Point everything it asked for. It would take too long to list all the changes.There are interesting examples.
- It changes what is allowed in the A2 zoning category. That’s the zoning that the five acre rural lots in Martin County have. It didn’t allow mining and cement plants. It does now. Martin County was required by the settlement to expedite the changeto the A2 zoning. The agreement requires that, if homeowners on a five acre lot questioned what was happening to their rural neighborhood and sued, the County would be required to fight the suit and seek sanctions. That’s right. Your County Commissioners have agreed to sue you and seek monetary damages if you question what they did to your area’s zoning.
- The County is required to buy 400 acres from Lake Point for $12 million. Commissioner Ciampi pointed out that residents won’t use the land.I looked up the appraiser’s market value for 167 acres of that 400 acres. The total value of the 167 acres is set at $142,000 or $850 an acre. The County is paying Lake Point $30,000 an acre for the 400 acres.But don’t start saying it’s a bad deal or it will get worse and will cost taxpayers even more. The County agreed to put up $4 million in escrow immediately. If they don’t close the sale and give Lake Point $12 million by January 18. 2018, we lose our $4 million escrow, we get no property, and we agree to be sued for breach of contract. Finally, the County was forced to apologize and grovel on your behalf and agree that:Lake Point is an important and integral part of environmental restoration and regional water supply in the South Florida region. They agreed that:Lake Poimt contributes in a meaningful and environmentally responsible way to the creation of the Public Works Project by excavating land.
That:
It is a vital component to the orderly growth of the County.
And:
The County acknowledges Lake Point as a good corporate citizen and appreciates the efforts of Lake Point regarding its contribution to the Public Works Project and to the wellbeing of Martin County and its citizens.
It reminds me of the playground bully who beats up his victim abd rubs his face in the mud and demands that he say : “Uncle”.
It feels like Alice in Wonderland where the Red Queen wrote the contract so that if you don’t grovel, pay out millions, and give away the store the result is:
“Off with their heads!”
- But it’s not the Commissioners who will lose their heads. It’s taxpayers and the people who live here.
SFWMD SETTLEMENT
Section 3.4(b). Section 3.4(b) remains unchanged except that the reference to a “Twenty (20) year reservation” in the first sentence shall instead refer to a “Fifty (50) year reservation
SELLING WATER
VI below FROM THE SFWMD settlement appears to allow Lake Point to sell water.
VI. Lake Point Entitled to All Revenue of any Kind. The Parties agree that Lake Point is entitled to earn and collect all revenue of any kind from any lawful activities or use associated with the Lake Point Property, including without limitation, any revenues associated with mining, farming, lease or sale of Water Storage, Water transfer, Water transportation, Water conveyance, Water use or irrigation rights, or any other rights, benefits, or entitlements whatsoever associated with the Lake Point Property, until such time as the Lake Point Property, or portions of same, are donated and conveyed to the District. After the Property or any portion thereof is donated to the District, Lake Point may use and collect all revenue from that portion of the Property until the end of the Mining or Farming Reservation only for uses associated with: mining, farming, water storage, Water transfer, water transportation, Water conveyance, or Water use or irrigation, unless another use is agreed to by the Parties, and so long as such uses do not materially impair the use of the Property by the District for the purpose provided in the Development Agreement. The District is not obligated to Lake Point to cooperate or assist in obtaining any permits, licenses, entitlements, payment of fees or other costs related in any way with the activities identified above.
NO BID CONTRACT FOR ROCK SALES
(Sec VIII is the section of the settlemnt agreement that deals with the requirement that Lake Point be granted an exclusive contract to buy riprap for the northern part of the District and much of the SE coast.District projects. The price is based on the District being responsible for transportation from the Lake Point Mine. Transportation is a significant part of the cost of rock. For projects at a distance from Lake Point, the District will be buying from nearby suppliers plus paying a penalty to Lake Point)
VIII. District Purchase of Material from Lake Point.
The Parties agree to incorporate this section into the Development Agreement as an addendum.
а. The Parties agree that Lake Point shall be the exclusive provider of any specification of Rip Rap material (“Rip Rap’ or “Rip Rap Material”) to the District from Lake Point’s Mining Activities for the next fifteen (15) years commencing on October 1, 2017 in the geographic area reflected on the map in the attached Exhibit “A.”
THE MAP APPEARS TO INCLUDE ALL OF THE SFWMD NORTH OF THE CALOOSAHATCHEE RIVER AND THE ST. LUCIE CANAL PLUS THE AREA EAST OF THE LAKE TO THE COAST DOWN TO THE LOWER END OF THE ART MARSHALL WILDLIFE REFUGE. THE MAP CAN BE SEEN AS PAGE 21 ON THE ABOVE LINK TO THE ENTIRE SETTLEMENT AGREEMENT.
b. The District promises, covenants, and guarantees that it will purchase a minimum of 50,000 tons of Rip Rap Material from Lake Points Mining Activities annually during the fifteen (15) year period referenced in Section VIII.a above. Lake Point promises, covenants, and guarantees that it will sell a minimum of 50,000 tons of Rip Rap Material to the District from Lake Point’s Mining Activities annually during the fifteen (15) year period referenced in Section VIII.a. above.
c. If the District does not purchase the minimum 50,000 tons of Rip Rap Material each year (calculated as each twelve-month period beginning October 1) from Lake Point, as described in Section VIII.b. above, then the District shall pay Lake Point at the end of each twelve-month period, as liquidated damages, $20.00 perton for each ton of Rip Rap Material not purchased. Lake Point will give the District a credit of S20.00 per ton against future purchases in excess of the Subsequent year’s minimum purchase requirements. The credit described in the preceding sentence shall only be valid for one (1) year following the year in which the purchase shortfall occurred, unless otherwise agreed to by the Parties.
For any twelve-month period, if the District purchases in excess of 65,000 tons of Rip Rap, the District will be entitled to a credit for such tonnage toward the minimum purchase requirements for the next one (1) year following the year in which the excess purchase occurred, unless otherwise agreed to by the Parties.
The District shall pay Lake Point the price of $28.00 per ton for Rip Rap (the “Base Price”). Beginning October 1, 2017, and on each subsequent month, the Base Price shall be adjusted by the Producer Price Index for sand, gravel, and crushed stone, not seasonally adjusted, as published by the U.S. Department of Labor, Bureau of Labor Statistics (the “PPI”) (the “Base Adjusted Price”).
The District shall notify Lake Point of any upcoming District project within thirty (30) days after the completion of the design phase of same so that Lake Point may properly supply the Rip Rap Material.
The District may issue a change order for any contract it has with Lake Point for any project subject to the terms of the applicable contract, but shall be obligated to pay a change fee of $12.00 per ton of Rip Rap not delivered, and shall be otherwise obligated to purchase the minimum tonnage of Rip Rap as provided in this Settlement Agreement.
Lake Point agrees to provide Rip Rap Material to the District that meets the specifications set forth in Exhibit “B.”Prior to each contract for Rip Rap, the District and Lake Point shall agree in writing as to all technical and engineering specifications required by the District for the specific project, and Lake Point shall agree in Writing that it can meet or exceed those specifications. After the Parties agree in Writing that Lake Point can meet or exceed the specifications, if for any reason, after testing for compliance with the agreed upon specifications in Exhibit “B” (as modified herein), the District determines in good faith that the Rip Rap does not meet specifications, the District shall not be obligated to purchase the nonconforming Rip Rap. However, the District shall give Lake Point a reasonable opportunity to cure any failure to meet said technical and engineering specifications for Rip Rap. If Lake Point agrees in writing as to all technical and engineering specifications required by the District for a specific project and cannot perform after an opportunity to cure, the District may purchase Rip Rap from other suppliers and may deduct such tonnage from the minimum annual purchase requirements under this Settlement Agreement. Testing for compliance with the agreed upon specifications will occur at the Lake Point Property as provided for in Exhibit “B.” The District will have a designated production and storage area at the Lake Point Property, separate and apart from other customers and Lake Point production.
Once any purchased Rip Rap leaves the Lake Point Property, Lake Point shall have no further obligation or liability with regard to its compliance with any technical or engineering specifications for such specified project.
If the District (1) demands Rip Rap specifications in excess of the specifications of Exhibit “B,” and Lake Point refuses to agree in writing as to those additional specifications required by the District for the specific project; or (2) refuses to accept Rip Rap when (i) the Specific Gravity (standard surface dry basis) is greater than or equal to 2.35 as referenced in paragraph 2.01.B. 1 or (ii) the stone wear, as referenced in paragraph 2.01.B.8 is less than or equal to 42.5 percent (%), the District may purchase such Rip Rap from other suppliers. In such event, the District may not deduct such tonnage from the minimum annual purchase requirements under this Settlement Agreement.
If Lake Point cannot sell Rip Rap for reasons unrelated to any technical or engineering specifications imposed by the District, and the District must purchase Rip Rap from other suppliers, the District may deduct such tonnage from the minimum annual purchase requirements under this Settlement Agreement. Finally, the District shall have no obligation to purchase Rip Rap from Lake Point if mining operations cease, except for Acts of God or War.
In the event this section of the Settlement Agreement is held to be unenforceable by a court of competent jurisdiction for any reason, and after the termination of any appeal or expiration of all appellate rights, the District shall pay to Lake Point the remaining amount due for the remaining life of this Settlement Agreement. For example, if this Settlement Agreement were deemed to be unenforceable by a court of competent jurisdiction one year from the Effective Date of the Settlement Agreement, then the District would be obligated to pay Lake Point money totaling 750,000 tons of Rip Rap multiplied by the Base Adjusted Price. Said payment shall be due within thirty (30) days.
If the agreement is found illegal after first year the District would have to pay $19.6 million to Lake Point.
l. For the purposes of this section of the Settlement Agreement, purchase of Rip Rap occurs when and only if it crosses the scale on the Lake Point Property and a ticket is generated for such purchase. Once the Rip Rap has crossed the scale and a ticket is generated, Lake Point will invoice the District the following day, and the District will process and pay the invoice within thirty (30) days.
COUNTY SETTLEMENT
(The County has amended its borrowing rules to allow it to borrow $15 million for Lake Point expenses. The County will receive 400 acres adjacent to the excavation and must provide access across it.).)
Sale of Acquired Property to the County.
Conveyance and Purchase Price. Lake Point shall convey to the County a portion of the Lake Point Property (“Acquired Property”) pursuant to the Purchase and Sale Agreement, a copy of which is attached hereto as Exhibit B (the “Purchase and Sale Agreement”), which shall be executed by the County Administrator and Lake Point and upon approval of the County Board of County Commissioners shall become effective. The purchase price for the County Acquired Property shall be twelve million dollars ($12,000,000) to be paid to Lake Point via wire transfer of cleared funds on the Closing Date (defined in the Purchase and Sale Agreement).
The County shall place four million dollars ($4,000,000) in escrow with Lake Point’s legal counsel, as Escrow Agent, in the manner set forth in the Purchase and Sale Agreement. The deposit of funds placed into escrow shall become non-refundable according to the terms stated in the Purchase and Sale Agreement. Should the County fail to close on the Acquired Property on the Closing Date, if such failure to close is not the result of a default by Lake Point, or otherwise default under the Purchase and Sale Agreement, then, at Lake Point’s sole and absolute discretion, this Settlement Agreement shall terminate and become null and void and the Parties shall proceed to trial on the Lawsuit.
In order to be effective, Lake Point must exercise its right to terminate within six (6) months of the Closing Date (defined in the Purchase and Sale Agreement). Lake Point’s termination of this Agreement in conformity with this article shall not divest Lake Point of the deposit placed in escrow that became non-refundable under the terms of the Purchase and Sale Agreement, and, in such event, Lake Point may pursue enforcement of any and all remedies available to Lake Point arising from the County’s breach of the Purchase and Sale Agreement, all of which remedies shall be cumulative and not exclusive. For purposes of clarity, however, if Lake Point defaults under the Purchase and Sale Agreement, the County shall not have the right to terminate this Settlement Agreement, which shall remain in full force and effect notwithstanding any default by Lake Point under the Purchase and Sale Agreement, and in such event, the County’s remedies for such default shall be limited to those remedies expressly provided in the Purchase and Sale Agreement.
Closing. The closing of the transaction under the Purchase and Sale Agreement shall occur on January 18, 2018 (the “Closing Date’), time being of the essence, unless this date is extended by the mutual agreement of the Parties.
ZONING
( Changes the A2 zoning category, Agricultural Ranchettes) to allow mining and “ancillary uses)
Redi-Mix Concrete Plant. Upon approval of the Settlement
ement, the County will consider proposed revisions to Section 3.412, Article 3 of the LDR’s to allow construction of a concrete batch plant on the Lake Point Property, a copy of which is attached hereto as Exhibit D (“Redi-Mix Concrete Plant Amendment’). The County shall expedite the process allowable under the law in order to ensure that the Redi-Mix Concrete Plant Amendment is approved or denied without delay. Should any third party make a challenge to the Redi-Mix Concrete Plant Amendment, the County agrees, at its expense, to move to expedite the consideration and resolution of any such challenge(s) and to seek any and all allowable sanctions against such third-party challenger(s).If the County is successful in obtaining sanctions (including attorneys’ fees and costs) against a thirdparty challenger,the County agrees that it will not waive, forgive or reduce the awarded amount. Lake Point is specifically relying on these representations in order to enter into this Settlement Agreement.