Family Values

The story of seven springs, two law students, and one family’s quest to conserve its land

By Lindy McCollum – Brounley

McGregor Sr. and Elizabeth Smith (c. 1970)

McGregor Sr. and Elizabeth Smith (c. 1970)

Say you find yourself sitting on a pot of gold. For the sake of argument, let’s say the gold is a cherished family treasure you’ve been entrusted by the previous generation to protect for the next. What would you do with it?

Real estate is not gold, but it may as well be for many Florida land owners and their families faced with either sell or save. Large parcels of Florida land can be worth millions when sold for development. Despite occasional economic downturns, the state’s history of boom-time growth has placed every acre of undeveloped land in the cross hairs, and, with Florida’s population predicted to swell from 19 million to 36 million people by the year 2060, the pressure is on to sell.

“Landowners can make a huge amount of money just by selling their land to someone who’s going to develop it, but what does that money mean to them in the long run relative to what the land meant to them?” said Judy Smith, a member of the Smith family, which owns more than 840 acres of land straddling Marion and Sumter counties. “My values would say they haven’t gotten much — to have that connection to the land, there’s just no money you could put on that.”

The Smith land lies within the Withlacoochee River watershed, and it shelters seven of 15 springs, including the main springhead, that feed Gum Slough, a tributary of the Withlacoochee River. Despite the slough’s pristine state, the area is on a collision course with widening ripples of suburbia emanating from the nearby mega-developments of Marion Oaks and The Villages.

Nonetheless, four Smith generations have grown to view their land, with its springs and surrounding wetlands, as unique and intrinsically valuable in its own right. The family knows that holding onto the property will be challenging, especially as development encroaches ever closer. They also know property taxes and inheritance taxes on generational transfers of property are extraordinarily burdensome, often forcing land-rich, cash-poor families to sell all or part of their properties when they would rather keep them.

“The support infrastructure is set up for someone who wants to sell, wants to develop, wants to go the way of the dominant culture. It’s very challenging and typically more costly to go against the flow,” Smith said.

Against the flow

Going against the flow is exactly what Tom Ankersen was doing one cold November day in 2007. Ankersen, director of the University of Florida College of Law Conservation Clinic, was kayaking up the 4.5 mile Gum Slough from the Withlacoochee River with a group of students and faculty as part of the clinic’s semi-annual field trip.

“This was the third time that I’d paddled Gum Slough, the second time with the clinic,” Ankersen said. “It’s one of the last wild spring runs left in Florida, it’s almost entirely protected up to the springhead, which is privately owned, and it’s beautiful.”

After five hours of paddling the group finally made it to the springhead, a lovely second magnitude boil sheltered below a dome of oak branches. They laughed and talked as they rested in their kayaks, excited to have come so far and soaking in the sights of the spring and the privately-held lands surrounding it. That land was Smith family land, and Judy Smith happened to be the Smith in residence on that day, living in one of the two homes located near the spring.

“We were sitting there talking and a woman who introduced herself as Judy Smith came down and wanted to know who we were, even though she enjoyed having people come up there occasionally,” Ankersen said. “So, I told her we were with the Conservation Clinic at the College of Law, and she had heard of the clinic from one of the land owners further down the run who had given her a FlaLaw article about a previous clinic field trip up the slough. So, we started this conversation, and we were literally interviewing a client, a potential client, at the end of this field trip on a spring run.”

As they talked, Ankersen learned the remarkable history of the Smith family and its property. Smith’s grandfather, McGregor Smith Sr., then the president and chairman of Florida Power and Light, and his wife, Elizabeth, bought the Gum Slough property — or “Seven Springs” as the family came to call it — in the late 1960s. Seven Springs became a treasured wilderness retreat for the Smiths, a place to gather and reconnect. Two modest residences were built near the springhead, and generations of Smiths have loved the property.

Following the deaths of the senior Smiths, the land was divided in 1997 between their sons, McGregor Jr. and Wilson — McGregor’s property on the south shore of Gum Slough in Sumter County, and Wilson’s on the north side in Marion County. Despite its legal separation, the property as a whole remains a central gathering place for the family.

“It turns out there is a very complicated structure around the property. The family has created a non-profit organization, there’s a family foundation, there’s private ownership, and there’s an existing conservation easement on McGregor Smith’s part of the property,” Ankersen said.

Ankersen learned that Wilson Smith’s portion of the property did not yet have an easement in place, although Smith had been collaborating with his niece, Judy, and several other close friends to establish an easement to protect his land. Ankersen suggested the Conservation Clinic could help with that, and, with the Smith family onboard, he assigned the Gum Slough conservation easement project to two second-year law students, Tristan Harper and John November, during the spring 2008 semester. The students were among 11 accepted into the Conservation Clinic for the semester, and Ankersen considered them his best fit for working with the Smith family to research and write a conservation easement for Wilson Smith’s portion of the property.

“The Conservation Clinic’s mission is to provide a real world learning opportunity for students and every semester we divide available projects among them,” Ankersen said. “I chose Tristan and John for this project because they were very outdoorsy and very attracted to the idea; they just seemed to be naturals for it. … They really took complete ownership of the project in a way that doesn’t happen very often.”

Words matter

Wilson, Judy and family friends, Mark Reno, Chip Mirman and Maggy Hurchalla, had already developed a strong working draft for an easement, which drew on their intimate familiarity with the land and shared desire to see it protected from development. This document would serve as the framework on which Ankersen and the law students would build as they began their own efforts researching the different aspects of establishing a conservation easement for the property.

“The property is so diverse. There are different types of habitats and land uses on the property, everything from cattle grazing, the area where the houses are, natural forests, the spring zones and the springs themselves,” said Tristan Harper (JD 09). “So, with a diverse piece of property like that it was essential to come up with an easement that would effectively protect the property and the landowners’ interests without restricting them too much.”

Under Ankersen’s guidance, the two students delved into the nitty-gritty of researching the property’s convoluted history and writing the easement — working with other land use attorneys and with Robert “Hutch” Hutchinson, the executive director of Alachua Conservation Trust, a non-profit land conservation organization based in Gainesville, Fla., tapped by the Smith family to serve as grantee for the easement. As their work progressed, the two were surprised by the complexity of the process — in terms of writing language to address the diverse characteristics of the property itself; of the legal issues impacting the easement; and in learning to work as a team, despite differences in personality and approaches to problem solving.

“I think they thought it was done at the end of the first draft, and there were at least five more complete redrafts of the easement. They began to realize how single words made a big difference in how the family perceived what was going on or how ACT perceived enforcement issues,” Hutchinson said. “So, if they had not learned prior to now that the power of language to change things on the ground is very real, they certainly learned after this exercise.”

Once executed, the conservation easement the students drafted would be written into the deed and become part of the property’s chain of title — forever.

“When you read case law sometimes you realize that a decision came down to a word or two, and even when talking with people, a few words or how something is phrased can really make a difference,” said Harper. “The easement was a really interesting project in the respect of how to make every word count to avoid future liability. The idea of the easement is that it will last in perpetuity, and you don’t want something badly written lasting in perpetuity. It’s important to the Conservation Clinic, it’s important to the Alachua Conservation Trust, and it’s extremely important to the land owners and their future generations.”

This reality, combined with the ecological and land use diversity of the property, compelled Harper and November to think outside the box when considering how to draft the easement.

“Other easements could choose to grant certain reserved rights and restrict certain uses over the whole property, but we realized that the same reserved rights for the springs shouldn’t also be reserved for the areas where they were going to build or where they were going to do row-cropping,” John November (JD 09) said. “These distinctions made us realize that we had to treat each of these areas differently and we came up with the concept of treating each unique area as a zone with unique management criteria.”

The two, in collaboration with Conservation Clinic and ACT lawyers, developed a novel approach that resulted in, as Ankersen described it, “an elegant document that looks a lot like a zoning plan.” It prohibits subdivision of any part of the property and places stringent use restrictions on the springs and associated water recharge areas. However, more flexibility of use is allowed for the agricultural areas, including future construction of 10,000 square feet of building space for educational or research purposes.

“I was impressed by the meticulous care that had been taken in drafting the document. It’s probably the most detailed, complete conservation easement I’ve ever seen,” said property owner Wilson Smith. “I’d never expected anything that careful or that detailed, but I was delighted to see it. I certainly had no reservations about executing it.”

Smith, a 1952 graduate of UF Law and a double Gator, was the project’s principle client and a man with a formidable background in the law. Now retired at 81 years of age, during his long career Smith established the probate department at the Miami firm Steele, Hector & Davis and was heavily involved in the probate sections of the American Bar Association and The Florida Bar.

As the project progressed, Smith’s attention to legal details put Harper and November through their paces as the wording in several drafts of the easement was refined to his satisfaction. Because of the research and careful crafting of the descriptions invested into the zoning concept, the final document was more time and resource intensive to produce than a typical easement, but it’s one that all parties are proud to have achieved.

“I was very happy that it had come to a final consummation, that we had finally finished it… and what was finished was extremely well-done,” Smith said.

Lessons learned

At long last, following three semesters of the students’ work and collaboration between the family, the Conservation Clinic, Alachua Conservation Trust and private attorneys who donated their time to the effort, the easement was prepared for closing. Hutchinson and November met Smith and his niece, Lorie, Judy’s sister, in Tampa on Sept. 26, 2008, and Smith placed his signature on the document, legally preserving Gum Slough’s headwaters in perpetuity.

“Wilson Smith’s joy was something very palpable as he resolved one of the big things he felt needed to be resolved when you want to own land responsibly,” Hutchinson said. “And, as a UF alum, he felt good about seeing young UF law students participate. … The fact that we were working so closely with the university clinic made it good for him. I know he’s thrilled with how it turned out.”

The students also felt a tremendous sense of achievement and satisfaction. They had taken on and completed a project with enormous complexity — in terms of the legal issues it addressed, the ecological attributes of the property, and the delicate balance of family relationships at play. The experience was transformative for them, and they recognize it as a defining event for themselves and for the Smith family.

“They accomplished something big while they were in law school,” Ankersen said. “They, in essence, made law, which is what lawyers do. That doesn’t happen with every clinic project, certainly not with the speed in which this happened. But, they got it done, and it’s hard to complain about the result.”