Okaloosa County BOCC — May 15, 2013 — Choctawmar Enc — reading text

@ RECEIVED March 18, 2013 3-A6+\9 VIA U.S. MAIL (CERTIFIED) Mr. John Hofstad Okaloosa County Public Works Director 1759 S. Ferdon Blvd. Crestview, FL 32536 RE: —Encroachments on Adjoining County Property / Lots 49 and 50 Dear Mr. Hofstad: We are in receipt of your letter dated February 15, 2013 regarding certain structures and improvements owned and used by us in connection with the ownership of our respective properties located at 111 Meigs Drive, Shalimar, FL (also known as Lot 49, Choctawmar Subdivision)(the "111 Property"), and 113 Meigs Drive, Shalimar, FL (also known as Lot 50, Choctawmar Subdivision)(the "113 Property"), which allegedly encroach into a county owned park located on the eastern end of Meigs Drive (the “Park”). Please accept this letter as our formal response. L Supporting Documentation: In connection with your letter, we have reviewed and examined the following documentation: A. That certain plat of Choctawmar Subdivision recorded on January 17, 1951 in Plat Book 2, Page 4 among the Official Public Records of Okaloosa County, Florida (the "Plat")(a copy of which is enclosed herewith); B. That certain Resolution of Encroachments upon County Owned Property dated June 6, 2012 (the "Resolution")(a copy of which was included in your original letter, and therefore is not enclosed herewith); C. That certain Boundary Survey of Choctawmar Park dated September 11, 2012 prepared by Okaloosa County Engineering Department under Project Number 4960 (the "Survey")(a copy of which was included in your original letter and therefore is not enclosed herewith); and D. Certain Florida case law which is referenced and discussed later in this letter. E. Certain Affidavits, true and correct copies of which are enclosed herewith. I. Background: Choctawmar Subdivision was developed by the Meigs family in the early 1950s. As indicated by the Plat, the property within the subdivision includes two parks: (1) a park on the western side of the subdivision, which borders Lake Clyde to the east and has been improved by the County over the years, and is commonly known as "Meigs Park"; and (2) a park on the eastern side of the subdivision, which has for the most part remained unimproved and left in its vacant and natural state. As you are aware, the eastern park borders the Property to the south and is the county park into which the alleged encroachments are located, as referenced in your letter. A review of the Plat indicates that both of these parks were dedicated to the public by the Meigs family pursuant to the Plat. Both of these parks are widely used by the residents of Meigs Dr. and Shalimar and are public recreational amenities dedicated to the public by the Meigs family. The western park has a much flatter terrain and topography than the eastern park, which is consistent with the terrain and topography of the subdivided lots located on the western end of Meigs Drive versus the subdivided lots located on the eastern end of Meigs Drive, which have a steeper terrain and elevation level than the properties on the western end. This may explain why the County has constructed more improvements (such as a parking area and boat ramp) to the western park, while the eastern park has remained unimproved for the most part since its dedication by Meigs family. The northern boundary of the Park (and, conversely, the southern boundary of the four subdivided lots which border the Park, i.e., Lots 47-50) sits on a bluff which descends and lies adjacent to Choctawhatchee Bay. I. Applicable Law: A. Easement by Prescription: The "encroachments" referenced in your letter consist of wooden steps, as depicted on the Survey. With respect to Mr. Simpson, these improvements existed at the time I purchased the property in 1998. With respect to Mrs. Butler, my husband Carroll built these improvements more than 30 years ago and they have remained in their present location since. We have met with several neighboring property owners, who will attest to the fact that these improvements have been located in their present locations and continuously used by our respective family members and/or the predecessors in title to the properties for over 20 years for purposes of accessing the Park. The improvements have never been classified as encroachments prior to the date of your letter, and the county has never objected to or questioned our use of these improvements despite the open and obvious use of them to access the Park. Accordingly, we believe we are entitled to permanent use of the improvements in connection with our continued use of the Park. See Lake County v. Gatch, 168 So. 2d 81 (Fla. 2d DCA 1964), cert. denied, 174 So. 2d 30 (Fla. 1965); see also Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958). B. Easement Implied from Reference to Plat: As fee simple owners of property within the Choctawmar Subdivision, the law in Florida is clear that we possess an implied private easement with respect to the Park areas designated on the Plat (see Southeast Seminole Civic Ass'n v. Adkins, 604 So. 2d 523, 526 (Fla. Sth DCA 1992)(a person who purchases in reliance on a plat referenced in a conveyance acquires by implication a private right or easement in the land dedicated for the use of grantee); see a/so, Easton v. Appler, 548 So. 2d 691, 694 (Fla. 3d DCA 1989)(when property is purchased and the deed of conveyance refers to a plat on which streets, parks, or other open areas are shown, the buyers acquire an implied private easement with respect to the areas designated on the plat). The steps lead down the bluff and are a reasonably and necessary means to access the areas of the Park. They are located within an unusable portion of the Park and do not increase any burden on the county as the servient property owner, nor do they invade or interfere with the county’s ownership or the public’s use of the Park. As easement holders, we are entitled to what is reasonably necessary for the full use and enjoyment of this easement. See Crutchfield v. F. A. Sebring Realty Co., 69 So.2d 328, 330 (Fla. 1954). Based on the topography of our respective properties and the Park, as well as the circumstances surrounding the manner in which the Park was dedicated, we feel these improvements are a reasonable, necessary and justified means of accessing the Park for our beneficial use and enjoyment of the Park. See Easton v. Appler, 548 So. 2d 691 (Fla. 3d DCA 1989)(intent relative to the scope and extent of a grantee’s use of an implied easement is determined by the language of the granting instrument, the situation of the property, and the surrounding circumstances). IV. Applicability of Resolution: In reviewing the Resolution and the section on "Applicability", we note that the policy applies to those properties acquired by the BCC through a deed, not to properties acquired by a platted or dedicated easement. Accordingly, on the face of the Resolution, it appears that the Resolution does not apply to the circumstances of this matter or encroachments relating to the Park. Notwithstanding the foregoing, please accept this letter as our formal request for a permanent encroachment permit to run with the title to our respective properties. In good faith and in an effort to be cooperative, we would like to meet with you and any other appropriate county members to discuss the permit application process and any conditions that typically apply to such a permit, as well as the legal rights we believe we have to these improvements as previously explained in this letter. Please note that our request for an encroachment permit and offer to meet and cooperate with the county in this regard shall not be deemed a waiver of any legal rights we have already established under applicable Florida law, including but not limited to permanent rights to the areas upon which the improvements are currently located. We look forward to hearing from you within the next 15 days regarding a proposed time for a meeting. In the interim, please let us know if you need additional information or have any questions. Sincerely, David A. Simpson = J Ligh 6 fgedlor, Elizabeth E. Butler Enclosures (esen Don Amunds, Chairman of the Board of County Commissioners AFFIDAVIT Before me, the undersigned authority, personally appeared ELIZABETH E. BUTLER (hereinafter called the “Affiant”) who, being duly sworn, deposes and says: L. That I am of sound mind, capable of making this affidavit, and have personal knowledge of the facts herein stated. 2: That my husband, Carroll B. Butler is the record fee simple owner of the real property located at 113 Meigs Drive, Shalimar, FL 32579, having Parcel Id. 05-2S-23-0400- 0002-0500 (the “Property”), and the Property is my current homestead. 3. That my husband and I have been in actual possession of the Property and have had the sole and exclusive right of possession thereto for approximately 40 years. 4. That the Property is located due east of the real property located at 111 Meigs Drive, Shalimar, FL 32579, having Parcel Id. 05-2S-23-0400-0002-0490, and legally described as follows (“Lot 49”): Lot 49, Block 42, Choctawmar, according to the plat thereof as recorded in Plat Book 2, Page 4, of the Public Records of Okaloosa County, Florida. 5. That I have had knowledge of Lot 49 and its surroundings for approximately 40 years. 6. That to the best of my knowledge and belief, the current record fee simple owner of Lot 49 is David A. Simpson and Sally A. Simpson, husband and wife. 7 That I have reviewed that certain Boundary Survey of Choctawmar Park dated September 11, 2012 prepared by Okaloosa County Engineering Department under Project Number 4960 (the "Survey"). 8. That to the best of my knowledge and belief, the improvements labeled and depicted as a “boardwalk” which extend from the southern boundary line of Lot 49 into the “park” as shown on the Survey have been located in the area shown on the Survey and used continuously, without interruption by the members of the Simpson family and/or their predecessors in title to access the “park” shown on the Survey for over a period of 20 years. 9. That I have reviewed this Affidavit and I warrant that all representations made in this Affidavit and all information contained herein are true and correct to the best of my information, knowledge and belief. FURTHER AFFIANT SAYETH NOT. Signed, sealed and delivered i ‘esence of the following yi shia hb), Me, Aes Namg- / Jjonebin VA LisofSon a STATE OF __[t COUNTY OF _ O£«/oo re. _ IP tay op Meet The foregoing instrument was acknowledged before me this ka day of 7/46 BLIZAB ETH E. BUTLER 2013, by ELIZABETH E. BUTLER [who is personally known to me, or [ ] who has produced the following as identification: ¢- (NOTARY SEAL) EXPIRES: January 31, 2017 Bonded Thru Notary Public Underwriters JONATHAN D. SIMPSON f MY COMMISSION FEE 869511 [¢ Af Nolowy Public fate Of Coptimission Mo. Commyésion Expires: AFFIDAVIT Before me, the undersigned authority, personally appeared BRENDA FORTUNE SANSOM (hereinafter called the “Affiant”) who, being duly sworn, depose and say: 1. That I am of sound mind, capable of making this affidavit, and have personal knowledge of the facts herein stated. 2. That the Owner is the record fee simple owner of the real property located at 117 Meigs Drive, Shalimar, FL 32579, having Parcel Id. No. 09-2S-23-0000-0004-0000 (the “Property”), and the Property is my current homestead. 3. That to the best of my knowledge and belief, either myself or a direct member of my family has been in actual possession of the Property and has had the sole and exclusive right of possession thereto for approximately 45 years. 4. That the Property is located adjacent to and due east of the real property located at 113 Meigs Drive, Shalimar, FL 32579, having Parcel Id. 05-2S-23-0400-0002-0500, and legally described as follows (“Lot 50”): Lot 50, Block 42, Choctawmar, according to the plat thereof