A lawyers-eye view: the Cypress Gardens property

by Kemp Brinson

With the recent purchase of Cypress Gardens by Merlin Entertainments Group there are a lot of questions concerning what the plans for the property might be. This article will review the legal documents that protect Cypress Gardens and discuss what Merlin’s options might be. I conclude that the existing easement leaves them plenty of room to make some major changes.

(Note: to read any of the linked public documents, you will need to click the link once and click on “Public Search” to get a cookie. Then you can go back and click the link again.)

Q. Do you have any conflicts of interest?

A. Not really. My law firm represented the owners of the property about three or four owners ago, but I had nothing to do with it and did not work there at the time.  My biggest interest is as a former season pass holder and curious neighbor. Although one of the now-former owners is a local attorney, I do not think I have ever met him.

Q. Let’s start with the basics. How is the property protected?

A. Polk County owns the original historic gardens property. The theme park operator owns the rest of the property. There is a conservation easement on the entire property, including both the county’s property and the operator’s property. The conservation easement provides “protection” because it gives a trust fund affiliated with the State the ability to enforce restrictions on use of the property. The ownership by the county of the historic gardens is kind of like a backup or safety mechanism. In the event that the conservation easement is extinguished somehow, or if the State doesn’t do its job enforcing it, the county still controls the historic core property.

Q. If Polk County owns part of the property, how is it that Merlin or anyone else can use it?

A. There is a lease. Just as you might rent a house or an office from someone, the theme park operator leases the Protected Parcel from Polk County. Except under this lease there is no rent paid. Instead of rent, the owner has to “restore, rehabilitate, and maintain” the property in accordance with the Conservation Easement. The County has a right to inspect the property to confirm this is being done. There are also some obligations with respect to insurance and a requirement that Polk County be given 100 one-day passes each year for things like planning retreats. As long as these provisions are followed, Polk County doesn’t have much say over how the property is used.

Q. What does the City of Winter Haven own?

A. Nothing. I frequently hear people assert that the City of Winter Haven owns the original historic gardens. Polk County owns the original gardens, not the City of Winter Haven. As far as I know, the City’s only involvement in the property is as a very, very, very close neighbor.

Q. Which property, exactly, does Polk County own and what does Merlin own?

A. I would like to introduce a couple of terms that will help simplify our discussion. These terms are exactly as they are used in the actual documents, so it will make it easy to refer to them if you wish:

The “Protected Parcel” is owned by Polk County and consists of 29.53 acres. It snakes north along the waterfront and includes the back yard of the Snively Mansion, the Snively Mansion itself, the ski show stadiums, the topiary garden, the botanic garden and gazebo, the Florida-shaped swimming pool, and a sliver of waterfront area behind the water park. The Protected Parcel is leased by the County to the theme park operator. The property appraiser has a map of the area.

The “Remainder Parcel” is 120.28 acres and is owned by the theme park operator (now Merlin) and includes everything else. Notably, the Remainder Parcel includes the entire waterfront south of the Snively Mansion, the sky ride area, the former zoo area, the village area, the entrance building, the butterfly conservatory, the former rides area, the water park, and all the parking. It may also include the overflow parking across the street – I am not sure.

The “Easement Parcel” is a term used simply to refer to the entire property subject to the conservation easement. In other words, the Easement Parcel refers to the Protected Parcel and the Remainder Parcel combined.

The above info is based on information from the property appraiser. It is possible that their maps are drawn incorrectly. To be thorough, one would need to review and plot the actual legal descriptions.

Q. What legal document creates the protections on the property?

A. There is one primary document, a Deed of Conservation Easement, dated February 24, 2004. In it, the then-owner of the property, the Trust for Public Lands, deeded a conservation easement over the entire Easement Parcel to the State of Florida’s Internal Improvement Trust Fund. See the link for more info about the fund.

Q. What are the terms of the conservation easement?

The Deed of Conservation Easement is a complex legal document. The restrictions on the Protected Parcel are pretty strict – they prevent anyone from altering the historic character of the core area and require that the gardens portion be kept in good repair. But the restrictions on the Remainder parcel are much less strict. As long as the use of the Remainder Parcel is in keeping with an economically viable theme park, there are not many restrictions. Here are a few items of note that should be considered as we watch the news to determine Merlin’s plans:

  • The historic garden portion of the property is very strictly protected. The gardens must be kept in good repair and nothing can alter their “structural integrity” or “physical appearance or character.” No motor vehicles can be operated there and no alterations are allowed to “existing structures, ground surfaces, landscape and setting.” There can be no new roads or trails constructed. There can be no “use of the Historic Gardens not normally associated with generally accepted activities for the preservation and maintenance of culturally and historically significant gardens. ” Don’t expect Merlin to make any changes to the historic garden itself.
  • The two waterfront stadiums are fairly well protected. There can be no landscape alterations that would “result in changes to the undeveloped lakefront, ski-show vista or appearance or hinder observation of the vista or lakefront activities…” I am unaware of anything in the document that requires that ski-shows be performed, but the stadiums must be functional for that purpose.
  • The Protected Parcel must be operated to maintain its “conservation values.” The term “conservation values” is not well defined from a legal perspective, but the concept is discussed at length in the document. It basically means all those things that make Cypress Gardens culturally significant. The owner has some leeway to modify and improve as long as these “conservation values” are protected.  This portion of the agreement is where both the State and Merlin would have some room to maneuver as future plans are considered.
  • There are some common-sense use restrictions on the entire property, such as prohibitions on agriculture, industrial activity, waste dumping, commercial sale of water, or operation of timeshares.

With all that said, there are a number of rights of the owner that are explicitly enumerated:

  • The right to control access to the historic gardens.
  • The right to construct buildings and amenities in the Remainder Parcel “necessary to operate an economically viable theme park.”
  • The right to construct hotels on the Remainder Parcel.
  • The right to operate a theme park that does not include the gardens as an amenity (as long as they are preserved.)

Q. Is the Conservation Easement all that stands between Merlin and their plans?

A. No, it’s not that simple. As mentioned above, the Agreement has some wiggle room. Any significant changes to the property would probably require some back and forth with the State to make sure everyone is on the same page. I would be surprised if Merlin hasn’t already had some discussions of this nature, just to make sure their plans are within the realm of possibility. A fun project for an investigative journalist might be to do a sunshine request directed to the Internal Improvement Trust Fund to see if they have had any written communications with Merlin regarding future plans at the gardens. It might shed some light on what they are thinking of doing with the property.

Also, anything they do has to meet current  zoning and land use restrictions, permitting requirements, and so forth.

Q. What happens if Merlin violates the Conservation Easement?

If talking it through doesn’t work, the Internal Improvement Trust Fund would have to sue Merlin in court to get an injunction, which is basically a court order telling someone to do something or not do something.

Q. What do you think they are going to do with the property?

A. If I could predict the future, I would not be writing this blog. Or working for a living. But here are some thoughts:

  • There is NOTHING WHATSOEVER that indicates we are getting a Legoland. Merlin has its fingers in a lot of different amusement pies – check out their website. If they go with an existing concept, we could get a Legoland, an aquarium, a cowboy/pirate themed park, a roller-coaster heavy attraction, a wax museum, a nature-themed attraction, an animal-themed attraction, or they might go with something completely new. Or Legoland may be exactly what they are thinking. We just don’t know.
  • No matter what, it would be very, very difficult to change the actual historic garden. Plan on that looking pretty close to exactly what it looks like now, but it doesn’t necessarily have to be the focus point of a new project. Ditto on the whole water-skiing thing. Water skiing at Cypress Gardens may be over.
  • Merlin can’t possibly be dense enough to try to the same thing that’s been tried. At least I hope not. Something significant has to change to attract the crowds.
  • There may be major structural changes to the entire Remainder Parcel – they could literally bulldoze everything, including the village area, and start over.

Q. So what?

A. The conservation easement definitely allows for something completely different to be tried. As long as the sliver of land running from the mansion to the Florida-shaped pool is more or less left alone, the options are abundant.

If you have any specific questions about what the Conservation Easement does or does not allow, please post a comment. I’ll do my best to answer.

EDIT: minor typo fixes