Tampoa Board Responds To Recent Publicity

The Tampoa Board today sent a letter to Truman Annex residents trying to explain and justify its position on Southard Street and the protests and publicity generated its actions over the past few days. The Board acted in response to numerous e-mails and angry communications it had received from Truman annex residents and the Key West Community. Obviously, the Board is feeling the heat. Undoubtedly Sunday's protest march through Truman Annex by Bahama Village residents got the Board's attention. We'll express our views on the letter in later posts. Meanwhile, here is the letter unedited. We invite your response and posts.

The Truman Annex Master Property Owners’ Association, Inc.
201 Front Street, Suite 103 Key West, Florida 33040
305/296-0556 305/293-0251 facsimile www.tampoa.com

September 27, 2006

Dear Neighbors,

We would like to acknowledge recent emails from some homeowners and citizens that express a range of emotions from anxiety to anger over the Southard Street situation.

TAMPOA residents are kind, hearted good people. They actively participate in and contribute to the community. We understand that it is very confusing for some to open the paper several days in a row and see this conflict.

Some criticism in the press has been unfair and without merit. Hopefully this letter will give everyone a better understanding of what has happened recently and what is likely to happen. Conflict sells newspapers and it will not disappear overnight but perhaps it will allow you to feel better about your neighborhood even when it is being unfairly attacked. Perhaps you will be better able to explain to people who are misinformed the truth of the situation which is simply that Truman Annex is being unfairly treated by the City Commission and sometimes inaccurately portrayed in the press.

OUR GOAL;
The goal of TAMPOA encompasses the security of our members, the recognition of private property rights, the upholding of a legitimate contract and fairness to all the citizens of Key West. To understand why we have this perspective takes some history and some facts.

OWNERSHIP OF SOUTHARD STREET
-The developer had clear title as indicated in the original transfer and his filed deed.
-Does it make any sense that these streets were ever dedicated to the City (as some incorrectly claim) inasmuch as the developer actually SOLD parking spaces on some of the streets to private individuals and to Historic Tours of America? Of course not!
-TAMPOA has a fee simple title policy granted at the time of transfer from the developer.
-TAMPOA has a deed for all the streets within its bounds, including Southard. This deed is on file with the County.
-The City has submitted, and TAMPOA has paid, taxes SPECIFICALLY ON THE STREETS for many years now.
-Two separate title firms have recently conducted and submitted title research. They are giving written legal opinion. Title has been transferred clearly and properly all the way from Juan Carlos Salas through Simonton, The City, The Navy, the developer and ultimately to TAMPOA.
-Just like the City, TAMPOA must have a vote of the membership in order to dispose of property. Unlike the City the vote must be a 100% affirmative vote of all members. This would never be possible. We can’t simply give away the street.

It has been suggested by some that the minimal value of the streets on the tax rolls is a true value of the damages if the City wants to enact eminent domain. This is not true. A street can not be sold by itself. But CONTROL of an association through street ownership confers significant value on the individual properties. This is why throughout all of America developers build gated communities. This is why developers spend large amounts of construction money for enclosures because it raises the value of the homes that are enclosed. Loss of that control creates substantial loss of value and hence, substantial damages.

THE 2000 CONTRACT BETWEEN THE CITY AND TAMPOA
The essential elements are:
-Four specific streets to be opened in Bahama Village
-Southard Street is to be used for outbound traffic ONLY.
-Inbound and outbound traffic to be four specified streets in BV.
-Gates to be installed on Southard St.
-After hours events at the waterfront and the park to be regulated.

The original rationalization for multiple streets in BV was to promote commercial activity, dissipate traffic and for safety purposes. In the event of a fire or other obstruction on Southard St. there is no way for Navy, Cruise ship, waterfront or park traffic to transit if Southard were the only street to and from the State park, the piers and the waterfront. This is very important and this was a precondition that the Navy established for turnover of the property.

This contract was unanimously ratified by both the City Commission and the TAMPOA board of directors. It was codified into a City ordinance. It was then ratified and approved by the State of Florida DCA. It was supposed to be enacted in the latter part of 2004.

HOW HAS THE CITY ACTED IN BAD FAITH
-They reneged on their original deadline in this contract to begin the opening of additional streets.
-They then reneged on their presentation to TAMPOA which was attended by the consultant group, the City manager, the redevelopment manager, the port manager and the City Attorney and multiple representatives of TAMPOA.
-They then reneged on promises made to over a hundred residents at two separate annual meetings in 2004 and 2005.
-They then reneged on their documented request (which was granted by TAMPOA) to have an extension to enact the contract.
-They then reneged on their verbal commitment by the City Manager “I am here in the presence of City Attorney Tischenkel and Commissioner Lopez and it is our intention to live up to the contract” (January 2006).

All of these acts of bad faith (and more) can be proven. We have recordings, witnesses and documents. This bad faith has created a delay in the use of the waterfront by the public. This bad faith has already generated significant legal costs for the public and for TAMPOA and will continue to do so. This bad faith effectively erodes the ability of the City to successfully pursue an eminent domain action. This bad faith may cause a reanalysis of the turnover by the Navy. And lastly, unless this is corrected, this bad faith may permanently damage the integrity of the Commission in the eyes of many.

We believe that all this can be rectified but it will require some attention and leadership.

HOW HAS TAMPOA REACTED?
We have talked privately on numerous occasions to various commissioners. We have allowed months and years to transpire as the Commission addressed other issues. We have granted extensions. We have requested public workshops. When no action was taken by the Commission we went to court to ask for what is called “specific performance”. Quite simply this is a legal request to have the City live up to its agreement. But we actively preempted this procedure by requesting a “mediation”. We hoped a better, more fair agreement for all of Key West could be reached.

WHAT HAPPENNED AT THE MEDIATION?
The mediation was attended by two representatives from the Navy, the City attorney and the consulting City attorney, the assistant City manager, a City commissioner, three TAMPOA representatives, two representatives from the Bahama Village Consortium, the City engineer with the State’s Attorney as the mediator. After a very long day of negotiation an agreement was reached which was written up by the consulting City attorney. Its essential elements are:
-Allowing Bahama Village to reduce the number of streets and determine the character of streets to be opened in their neighborhood.
-Opening Admiral’s Cut to additional pedestrian traffic.
-TAMPOA would allow two-way traffic on Southard Street.
-Having TAMPOA provide new, clearly documented easements for the Navy (24/7), the City and the Park visitors during normal hours.
-Still having gates to be closed during the night.
-After hours events to be regulated.

Our honest belief was that this mediated agreement would provide more flexibility and citizen access. Incredibly, we were then asked on three different occasions to modify the agreement and we met all three “renegotiations”. We were disappointed, however, when it was never approved.

WHY DID THE COMMISSION NEVER APPROVE IT?
Immediately prior to this mediated solution coming before the Commission for approval we were please to read a quote in the paper by a commissioner who was present at the mediation that a compromise had been reached and that everyone had to give a little in order to reach a fair resolution. We couldn’t agree more. No one at the mediation had objected to any item in it and our own board had approved it unanimously. So we were totally startled when a local developer, his attorney, his former attorney and a person who works for him all spoke out against it and it was tabled. And it is still not approved.

It is our opinion that this agreement is not favorable for commercial interests that do not want this traffic agreement to be enacted. It does not allow for large busses to carry passengers from the largest cruise ships. It does not allow for affordable housing which we think has become the new cagey way to garner building permits and make development profit. And it does not allow for wide-scale retail construction.

It DOES retain the integrity of the original waterfront development plan that was the result of the input from over a hundred different persons, from virtually every interest group in Key West. It DOES minimize traffic and keep the concept of a citizen’s park.

WHY ARE GUARDS NOW STOPPING VEHICLES ON SOUTHARD ST.?
There is a known legal principle called “waiver” which holds that an owner may ultimately lose ownership of a piece of property if they do not exert control of that property. Our volunteer board of directors was advised that if they allowed that to happen the board could be sued for negligence. Given the clear ownership of the street, given the demonstrated bad faith of the City, and given the threatening statements of takeover by some, the Board of Directors became concerned that the City might try such a devious action. So we instructed our guards to ask drivers for their names and destinations to demonstrate ownership control. Policy was set by the Board and the security manager instructed guards to allow passage for any vehicle that had a DOD decal, a State Park decal, a TAMPOA decal or anyone they knew personally. NO ONE was denied passage. Names were requested but no I.D.’s were requested and, again, NO ONE was denied passage. And as far of charges of denying access on a racial basis, please, don’t be ridiculous!

TAMPOA IS THE ONLY ENTITY STANDING BETWEEN UNBRIDLED WATERFRONT DEVELOPMENT AND THE ORIGINALLY PLANNED CITIZEN’S PARK
In short, both the 2000 contract and the mediated settlement support the needs of a public park and the wishes of the general citizenry but it suppresses commercial development. We readily concede that it will put some traffic into Bahama Village as part of the traffic sharing. The problems associated with this additional traffic should be addressed thoughtfully and some within the City have already begun to address them. Also, the Navy is helping by trying to send more of its traffic through United Street which benefits both the residents of Truman Annex and Bahama Village.

But we believe that until the citizens of Key West understand that developers are already approaching funding sources and openly talking about the long term “development” of the waterfront, citizens will not understand the forces that are trying to minimize open space and maximize profit. And the byproduct is continued media misdirection, continued litigation, rancorous impasse and increased burden to the City budget.

WHY INCREASED BUDGETARY BURDEN? WHAT ABOUT EMINENT DOMAIN?
For starters, the documented bad faith acts by the City will effectively erode their legal case if they ever attempt it. Secondly, eminent domain is explicitly prohibited for the purposes of economic development. The transfer from the Navy is specifically an economic conveyance. Third, eminent domain requires that no reasonable alternative exist and in fact there are two alternatives; the 2000 traffic contract with TAMPOA and the mediated settlement which the City has repeatedly postponed. And lastly, under statute, both costs and damages must be paid by the City. Legal costs and appraisal fees will easily exceed a million dollars and TAMPOA already has expert research that pegs damages for the loss of access control at numbers that are three to five times the amount of the Duck Tours decree. These costs will be transferred to all Key West taxpayers when taxes have already been increased substantially. To be blunt, it would be fiscally reckless. So the factors against a low or no-cost eminent domain action are formidable if not impossible.

But here’s the MOST IMPORTANT POINT. It makes NO SENSE to do this when the mediation gives traffic access via Southard to 100% of the projected traffic as originally envisioned in the waterfront plan….AT NO COST!

WHAT TO DO?
Frankly it is simple but it’s up to the Commission. Please call your commissioner or the Mayor. Encourage him to re-evaluate the details of this matter. More specifically, encourage the Commission to hire independent counsel to verify some of these concerns. Thus far the Commission has not done so and they are relying on informal advice. The danger of this approach is twofold. The Commissioners are leaving themselves wide open to liability instead of transferring it to a responsible law firm and they are getting biased advice. Secondly, encourage them to understand the details of both the original contract and the mediation. Third, encourage them to interact with us here at TAMPOA. We have made many calls and emails, most of which have not been returned. We want a reasonable settlement. Explain to them that a productive compromise is in the interests of all. And most importantly, tell them you want a PARK, NOT MORE COMMERCIAL DEVELOPMENT AND TRAFFIC and that either the 2000 contract or the mediation guarantees it. They need to hear from you and they need to hear the facts.

Sincerely and Respectfully,

The TAMPOA Board of Directors.