For more than four years, John Nicolette has tried to give the city of San Antonio a small piece of land just a few hundred feet behind City Hall, called Lake Emily.
The question is: Why?
Nicolette is running for the County Commission seat now held by Ted Schrader. Last week, in an e-mail to the St. Petersburg Times, he characterized his proposed land donation as altruistic.
"I only wish to give the city a piece of property and want a commitment & that they won't turn around and use the parcel for development and private profit instead of public benefit.''
But in public, Nicolette has a different demand: a rezoning that would make his donation a valuable tax deduction. A tax expert consulted by the Times estimated that for someone in Nicolette's income range, the deduction might be worth $5,000.
Nicolette, who lives 3 miles outside San Antonio, warned the City Commission in February that not giving him what he wanted might mire the city in lawsuits. Helping press his case was San Antonio's development consultant, Adam Carnegie, who once worked as Nicolette's attorney.
And then, unlike now, Nicolette said it would be fine for the city to sell the land to private interests.
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School district and county officials who deal with land donations say they have never before encountered gift proposals that come with rezoning conditions, much less legal threats.
"It seems to be setting a precedent for a whole lot of wheeling and dealing," said Ray Gadd, who handles land matters for the district.
"Wow," said Renee Wiesner Brown, who handles environmental land donations for Pasco. "We haven't heard anything like that, and that's a good thing."
Thanks, but no thanks
Lake Emily, a 1.86-acre parcel, has appeared on city plats as far back as 1897. Heavy rain fills it quickly, though recent dry years have turned it into a parched, leafy basin.
Property deeds show Nicolette bought Lake Emily for $3,000 in October 2003 from Sumner & Jones Investment Corp. The company's directors were San Ann Realty owner Ralph Jones and Dennis Sumner, Nicolette's brother-in-law and son of former County Attorney Robert Sumner.
Late that year, Nicolette, 46, informally suggested to city officials that he could give the parcel to San Antonio, said city Commissioner Dennis Phillips. But officials weren't enthusiastic.
"The city doesn't want to own too much land," Phillips said, "because it would be something we would have to maintain."
In September 2006, Nicolette formally applied to change the parcel's land use. In the application, he again suggested that he could give it to the city. He later told the City Commission that the city could resell it to neighbors after the rezoning.
"You may not want it, not a problem," he told commissioners in February, according to tapes of the meeting. "The neighbors might say, we might want to purchase it. They can break it up for all the landowners, get it? & The city wins, because with that money, I ask for you to take it and put it into parks."
The neighbors weren't keen.
"It's just a strange situation," Richard Arto told the Times. "You give a gift, but it comes with terms and conditions."
At the meeting, Mayor Roy Pierce pressed Nicolette on his motivation.
Nicolette: "If I decide to gift it, there would be difference in conservation vs. residential."
Pierce: "It would add more tax value on your claim? That would make the difference, would it not?"
At another point, Pierce asked: "Are you still considering donating it to the city if they want it, so you could write it off on taxes?"
Nicolette: "Yes. From the last time, when I first purchased the property, my intent was to have you all change the designation."
Nicolette backed his rezoning request with vague talk of legal action if the land isn't rezoned. He cited state law called the Bert Harris Act, which forces governments to compensate landowners if regulations "inordinately burden" the property.
"If I pass away and my wife decides to sell it, and she sells it to somebody, I believe, through legal individuals I have talked to, this will put the city in a situation where they could become liable," he told commissioners at February's meeting.
Nicolette later told the Times he had no idea what the legal threat was about, and that he was only echoing what City Attorney Richard Davis and Carnegie, the city consultant, had said.
Davis said he didn't raise the legal threat.
"It is my recollection that I did not introduce the concept of a cause of action under (the Harris Act), but rather responded to questions from others regarding same," Davis said in an e-mail to the Times.
Here's what the tapes of December's commission meeting say.
"The question that I would ask is what is the recommendation from the attorneys and from engineers based on the legal issue of the Bert Harris Act?" Nicolette said.
Davis explained the act, and went on to tell commissioners, "Mr. Nicolette has posed that question before, and as your adviser, I want to make sure that we don't invite a cause of action under Bert Harris or other potential causes of action."
In December, Carnegie, the city's development consultant who had worked for Nicolette, had sent an e-mail to Davis and other city officials. It said: "Our position has been that the appropriate strategy in this case, both from an objective land-planning perspective and to protect the city from possible legal challenge, is to give the property at least minimum development potential on the Future Land Use Map."
Carnegie did not respond to repeated requests for comment from the Times.
Thomas Reese, a St. Petersburg environmental attorney, dismissed the plausibility of using the Harris Act in a case like Lake Emily. Reese commented on the case without knowing the identities of those involved.
"Bert Harris is usually related to an act that changes the use of that property, usually when you downplan or reduce the use of the property," Reese said. "People use the name Bert Harris all the time. They think that if they mention it, people will dive under the table."
Nicolette's opponents in the County Commission race questioned why his proposed gift comes with conditions.
Schrader said his family has also made land donations.
"We were blessed and we felt it was best thing to do and it came with no strings attached," Schrader said. "If Mr. Nicolette believes it's the best thing for the city, why place any conditions on it? If he wants to do it out of the goodness of his heart, just give it and let the city decide what they want to do with it."
"It just sounds like a strange proposition to me," said County Commission candidate Gina King. "If it's really an act of altruism, why not just give it to the city without conditions?''
The terms of Nicolette's donation also unsettled a city commissioner.
"I find it odd that someone who's a candidate for public office is waving the carrot of a parcel as well as a lawsuit at a town that doesn't have the money to handle that kind of thing," said William Plazewski. "I find it unusual, to say the least."
The deal in dollars
What would the proposed rezoning be worth?
The Times posed the question to Scott Robey, a tax consultant with Tampa's public accountant firm of Bender Newkirk and Co. Robey spoke without knowing the identities of those involved.
Nicolette told the Times his salary, as a firefighter, is in the $50,000s.
Assuming a $55,000 salary and no other deductions, a donation of conservation land worth $3,000 might not yield any tax savings, since a married taxpayer would probably elect to use the standard $10,700 deduction instead, according to Robey.
But a donation of residential land yields more, Robey said.
Residential lots of similar size in San Antonio have been appraised at $30,000.
A $30,000 donation would mean deductions that could save a donor $5,250 in taxes over two years (deduction amounts are capped at 30 percent of income each year, but the balance is allowed to carry over to the following year).
Tax records are not public information. If Lake Emily is rezoned, it would never be known if Nicolette does file a deduction.
It may not matter any more. In his e-mail to the Times last week, Nicolette said:
"I would withdraw my application for the land-use change if the city makes, as a condition for my gift, a stipulation that the parcel will never be resold for development"