UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________________________________

CASE NO. 08-13170-B

__________________________________________________

JORG BUSSE,

Plaintiff Appellant,

versus

LEE COUNTY, FLORIDA, et al.,

Defendant Appellees.

__________________________________________________

On Appeal from the United States District Court

for the Middle District of Florida, Fort Myers Division.
__________________________________________________

APPELLANT’S RECORD EXCERPTS

VOL. II

DR. JORG BUSSE, Plaintiff-Appellant, pro se

P.O. Box 1126, Naples, FL 34106-1126
Tel: 239-595-7074; E-mail: JRBU@aol.com.
 INDEX OF VOL. II

E. RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES.

F. DISCOVERY RECORDS

G. RESPONSES; REPORTS; ORDERS; OTHER

H. Certificate of Service

i
E. RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES
RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

DISPUTED LEE COUNTY O.R. 569/875 [PURPORTED “RESOLUTION”]

was

• Null and void ab initio

• Illegal and unconstitutional

• Without any police, eminent domain, or other authority or purpose

• Arbitrary and capricious

• Violative of Due Process, Equal Protection, & Just Compensation Clauses

• Not a land use regulation or restriction

• Ipse dixit confiscatory

• Unexecuted, unsigned, unacknowledged

• Without a seal, vote count, resolution number

• Not entitled to be recorded

• Violative of Florida’s mandatory enactment requirements

• Without any valid legal description

• Without any legally defensible boundaries

• Not a conveyance or title

• Used to commit a conspiratorial “land grab” scheme

• Used to oppress, extort, and defraud

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Confiscatory Lee County O.R. 569/875

“… certain zoning actions [land use regulations] are invalid under

Florida law if they are confiscatory.”

See Key Haven Associated Enters., Inc. v. Board of Trustees of the Internal

Improvement Trust Fund, 427 So.2d 153, 159 (Fla.1982).

“… alleged lot A and block 1 cannot be legally described or surveyed,

because they were not on the referenced Subdivision Plat.”

See Third Amended Complaint (Doc. # 288; 282; p. 3; ¶ 15).

RELEVANT PART:

1. Confiscatory O.R. 569/875 did not constitute a proper exercise of the local

government's police power, and was not a land use regulation.

2. Defendants’ fabrications of un-platted “lot “A”, block “1”, and a “park” were

not within the scope of Defendant Board's police power.

3. No title was ever transferred from Plaintiff(s) to Lee County, which held no

interest in riparian Gulf front Lot 15A.

4. O.R. 569/875, lot “A”, and block “1” effectively confiscated Appellant’s

property. Therefore, said confiscatory acts were null and void ab initio, but the

Hon. District Court failed to invalidate them.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Arbitrary and Capricious O.R. 569/875

“In Florida, a zoning ordinance [land use regulation] that effectively

confiscates property is void.”

See Dade County v. National Bulk Carriers Inc., 450 So.2d 213, 216 (Fla.1984).

In First English Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304, 321, 107 S.Ct. 2378, 2389, 96 L.Ed.2d 250 (1987), the Supreme

Court recognized that state courts have the power to strike down zoning actions

[land use regulations] that are confiscatory, thereby subjecting the local

government to liability for a temporary taking only.

RELEVANT PART:

1. Confiscatory O.R. 569/875, which was not a land use regulation, was null and

void ab initio and could not be enforced. Thus. the Hon. Court had jurisdiction.

2. Here, there was a temporary physical invasion and taking of Appellant’s private

accretions onto riparian Gulf front Lot 15A.

3. The Hon. District Court improperly analyzed Appellant’s claims under

incorrect standards. Here, “regulatory” takings standards did not apply, because

there was no [land use] “regulation”.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Confiscatory “resolution” [O.R. 569/875]

When an act transgresses the authority vested in the legislature by the

Constitution, “it is the duty of the courts to declare the act
unconstitutional, because they cannot shrink from it without violating
their oaths of office.”

See City of Miami Beach v. Lachman, 71 So.2d 148, 150 (Fla. 1954).

“In constructing provisions of the Constitution, each provision must be

given effect and that constructions which are strained, lead to absurd
results, or render another provision nugatory must be avoided.”

See Gray v. Bryant, 125 So.2d 846 (Fla. 1960).

RELEVANT PART:

1. Defendants had no conferred authority to confiscate without due process, equal

protection, and just compensation.

2. Here, the Hon. District Court had jurisdiction and ignored the elementary

canons of constitutional construction.

3. In this ripe action, the Hon. Court erred when it failed to declare confiscatory

O.R. 569/875, lot “A”, and block “1” unconstitutional and void.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Purported “resolution”, which was never enacted.

Florida follows majority view that measures passed in contravention of

notice requirements are invalid, that is, they are null and void, if not
strictly enacted pursuant to statutory requirements.

See Ellison v. City of Fort Lauderdale, 183 So. 2d 193 (Fla. 1966); Fountain v.

City of Jacksonville, 447 So. 2d 353 (Fla. 1st DCA 1984); Daytona Leisure

Corporation v. City of Daytona Beach, 539 So. 2d 597, 599 (Fla. 5th DCA

1989). See also, Florida Attorney General Advisory Opinion Number 90-67.

RELEVANT PART:

1. O.R. 569/875 was never enacted and null and void ab initio.

2. The Hon. Court had jurisdiction, because the purported “resolution” was never

enacted and unconstitutional.

3. The Hon. Court misapplied “regulatory” taking standards, even though there

was no police power regulation.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Purported “resolution”, which was never enacted.

The Florida Supreme Court devised a two-part test to determine whether

the exercise of power is appropriate in a specific case: Is the action
undertaken for a county purpose; and if so, is such action expressly
prohibited by the Constitution, general or special law, or county charter?

See City of Boca Raton v. Gidman, 440 So. 2d 1277, 1280 (Fla. 1983); see also

City of Winter Park v. Montesi, 448 So. 2d 1242 (Fla. 5th DCA 1984), pet. for

rev. den., 456 So. 2d 1182 (Fla. 1984).

RELEVANT PART:

1. Confiscatory O.R. 569/875 was expressly prohibited by the Federal and

Florida Constitutions.

2. Lee County had no power to confiscate without due process, equal protection,

and just compensation. No eminent domain proceedings were initiated.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Doc. # 338, p. 12; Doc. # 282, 288, p. 10.

Plaintiff Appellant had sufficiently alleged that Defendants treated Plaintiff(s)

“differently than other similarly situated property owners”.

See Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1552 (11th Cir. 1991).

“To properly plead an equal protection claim, a plaintiff need only allege
that through state action, similarly situated persons have been treated
disparately.”

See Boyd v. Peet, 249 Fed. Appx. 155, 158 (11th Cir. 2007)(citation omitted).

“The public index evidenced that all accretions onto the Subdivision
belonged to A. C. Roesch, who subdivided and conveyed them…”

See Third Amended Complaint; p. 10; ¶ D; see also Cayo Costa Plats of Survey in

Lee County PB 3, PG 25, and PB 1, PP 48, 51, and 52.

RELEVANT PART:

1. Appellant’s equal protection claim identified “similarly situated comparators”

such as, e.g., other Lee County riparian landowners, Alice Robinson, and A. C.

Roesch [the original Cayo Costa subdivider and owner].

2. The Hon. Court had jurisdiction and denied Appellant the equal rights of A. C.

Roesch and Alice M. S. Robinson as established in the Public Records.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Document # 338, p. 12 [Opinion and Order]

“Section 125.66 Fla.Stat. provides in pertinent part:

(1) In exercising the ordinance-making powers conferred by ... the State Constitution,
counties shall adhere to the procedures prescribed herein.
(5)(b) In cases in which the proposed rezoning involves 5 percent or more of the total
land area of the county, the board of county commissioners shall provide for public
notice and hearings as follows:
(1) The board of county commissioners shall hold two advertised public hearings on
the proposed ordinance or resolution. Both hearings shall be held after 5 p.m. on a
weekday, and the first shall be held approximately 7 days after the day that the first
advertisement is published. The second hearing shall be held approximately 2 weeks
after the first hearing and shall be advertised approximately 5 days prior to the
public hearing. The day, time, and place at which the second public hearing will be
held shall be announced at the first public hearing.
(2) The required advertisements shall be no less than one-quarter page in a standard
size or a tabloid size newspaper, and the headline in the advertisement shall be in a
type no smaller than 18 point. The advertisement shall not be placed in that portion of
the newspaper where legal notices and classified advertisements appear....

Section 125.68 Fla.Stat. provides in pertinent part:

(1) Counties shall maintain a current codification of all ordinances. Such
codification shall be published annually by the board of county commissioners.”
See First Assembly of God of Naples, Florida, Inc. v. Collier County,
Fla., 20 F.3d 419 (11th Cir. 1994).

RELEVANT PART:

1. The Hon. Court misapplied First Assembly of God, supra, which involved a

“local zoning ordinance”. See Doc. # 338; ¶ C, on p. 12.

2. First Assembly, supra, established that unexecuted O.R. 569/875 was never

enacted, did not satisfy Florida’s mandatory enactment requirements, and was

not entitled to be recorded.

O.R. 569/875 violated §§ 125.66 and 125.68, Fla. Stat. and was null and void.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Document # 338, p. 12 [Opinion and Order]

“Section 125.66 Fla.Stat. provides in pertinent part:

(1) In exercising the ordinance-making powers conferred by ... the State Constitution,
counties shall adhere to the procedures prescribed herein.
(5)(b) In cases in which the proposed rezoning involves 5 percent or more of the total
land area of the county, the board of county commissioners shall provide for public
notice and hearings as follows:
(1) The board of county commissioners shall hold two advertised public hearings on
the proposed ordinance or resolution. Both hearings shall be held after 5 p.m. on a
weekday, and the first shall be held approximately 7 days after the day that the first
advertisement is published. The second hearing shall be held approximately 2 weeks
after the first hearing and shall be advertised approximately 5 days prior to the
public hearing. The day, time, and place at which the second public hearing will be
held shall be announced at the first public hearing.
(2) The required advertisements shall be no less than one-quarter page in a standard
size or a tabloid size newspaper, and the headline in the advertisement shall be in a
type no smaller than 18 point. The advertisement shall not be placed in that portion of
the newspaper where legal notices and classified advertisements appear....

Section 125.68 Fla.Stat. provides in pertinent part:

(1) Counties shall maintain a current codification of all ordinances. Such
codification shall be published annually by the board of county commissioners.”
See First Assembly of God of Naples, Florida, Inc. v. Collier County,
Fla., 20 F.3d 419 (11th Cir. 1994).

RELEVANT PART:

1. The Hon. Court misapplied First Assembly of God, supra, which involved a

“local zoning ordinance”. See Doc. # 338; ¶ C, on p. 12.

2. First Assembly, supra, established that unexecuted O.R. 569/875 was never

enacted, did not satisfy Florida’s mandatory enactment requirements, and was

not entitled to be recorded.

3. Thus, O.R. 569/875 violated §§ 125.66 and 125.68, F. S. and was null and void.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Records: Lee County O.R. 569/875, purported “resolution”;

Lee County Official Records 2967/1084-90.

”In order to be valid, a resolution or regulation in order to be adopted

must be reasonable and non-discriminatory and must tend to promote
the public health, safety, morals, or general welfare.”

See, e.g., Carter v. Town of Pal Beach, 237 So. 2d 130 (Fla. 1970).

RELEVANT PART:
1. Here, confiscatory draft 569/875 was unreasonable, arbitrary, and
discriminatory, because Lee County and Defendant State knew that the disputed
riparian rights were granted to Alice M. S. Robinson. See Lee County Official
Records 2967/1084-90.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES
Document/Public Record: ‘Blue Sheet 980206’
In its Opinion and Order (Doc. # 338, p. 13, ¶ D), the Hon. Court stated:
“The only assertion of disparate treatment is for the those lots owned by
government, which plaintiff alleges did not have their rights taken.
However, a private owner such as plaintiff can not be compared to a
public owner such as a government unit.”
In his 3rd Amended Complaint (Doc. # 282; 288; p. 3; ¶. 15), Appellant alleged:
“Therefore, Defendant Officials temporarily took a total of more than
approx. 200 Acres of private accretions onto Cayo Costa under color of
‘O.R. 569/875, ‘O.R. 2967/1084-90’, and ‘Blue Sheet 980206’, without
just compensation for which Defendant State and County must make
restitution.”
Said ‘Blue Sheet 980206’ fraudulently alleged:
“As a result of this Resolution, the State of Florida is requesting Lee County
convey any interest it may have in these accreted lands to the private
property owner, Alice M. S. Robinson in order to clear title for its purchase
of the properties from Ms. Robinson.”
“The Equal Protection Clause is essentially a direction that all persons
similarly situated should be treated alike.’”
See Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir. 1989).

RELEVANT PART:

1. Lee County knew that it never had any interest in said private accreted lands,
and fraudulently “conveyed” that which it had no interest in.
2. Defendants did not treat riparian lot owner Alice M. S. Robinson and
Appellant alike, but discriminated in order to gain benefits. Defendants
fraudulently “conveyed” to Ms. Robinson her own appurtenant riparian rights in
order to maintain the “bogus” resolution and fraudulent land claim on the
County’s books and in its land inventory.
3. The Hon. Court’s Opinion was in gross error.

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Case 2:07-cv-00228-JES-SPC Document 89-2 Filed 08/06/2007 Page 5 of 10
 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: 1912 Plat of Private Undedicated Cayo Costa.

From Restatement of the Law of Property, section 9, p. 23, it is further pointed out that:

"Such interests as easements, profits, restrictive covenants and agreements affecting

the use of land, powers of appointment and rents are not possessory interests and are
not interests which may become possessory."

Adverting again to Thompson on Real Property, Vol. 1, section 328, pp. 524 and 525, it is seen:

"An easement is not a right to the soil of the land or to any corporeal interest in it,
but it is an incorporeal right in the corpus which is considered an interest in the land
itself. While it is a right distinct from the ownership of the soil, it is more than a mere
personal privilege. Also, while an easement does not operate to dispossess the owner
of the fee, the title to the land may be a mere naked one with none of the usual
advantages of ownership. * * *"

Rights under an easement are discussed in Jacobs v. Brewster, 1945, 354 Mo. 729, 190 S.W.2d
894, 898, wherein it is stated:

"'Continuous,' under the terms of the definition, does not mean 'possession.' 'He who has
an easement in particular land is not and cannot be thereby in possession of the land; he
can only use it.'"

This topic is further elaborated in 17A Am. Jur., Easements, section 112, p. 718, which states
that:
"Since an easement is an incorporeal hereditament - a servitude imposed upon
corporeal property, and not a part of it - it gives no right to possess the land upon
which it is imposed, but merely a right to the party in which it is vested to the
enjoyment thereof."

Additionally, it may be seen in 2 C.J.S. Adverse Possession § 89, p. 646:

"Claim or enjoyment of an easement does not give an adverse right to the fee, and
acts of ownership consistent with the easement will not start the statute of limitations
running as respects the fee.”

RELEVANT PART:

1. Lee County had no right-of-way interests in admittedly undedicated Cayo Costa.

2. Lee County knew that it had no title to the disputed private accreted lands.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Lee County O.R. 569/875;

Lee County Official Records 2967/1084-90.

“To the extent that any such regulation has been preempted by the state
or is inconsistent with general law or with regulations adopted by the
state, any attempted municipal/county regulation would be invalid.”
See, s. 166.021, F.S.; City of Miami v. Forte Towers, Inc., 305 So.2d 764
(Fla.1974); Fla. Atty. Gen. Op.'s 78-141, 75-167, 74-286 and 73-463.
“In addition, a further limitation on a municipality's/county’s power to
regulate in this area and as a corollary to the requirement that such
regulation and restrictions be in furtherance of the public health, safety
and welfare, is the requirement that such regulation not be violative of
the constitutional protections afforded to the public…”
See, s. 11, Art. X, State Const.

“[w]hile the town may regulate and control surfing and skimming in
areas subject to its jurisdiction and may prohibit these activities at
certain places along the beach, the complete prohibition of this sport is
arbitrary and unreasonable.”
See Carter v. Town of Palm Beach, 237 So.2d 130 (Fla.1970).

RELEVANT PART:

1. Under Florida law, Defendants Lee County and State of Florida had no

authority to confiscate in violation of the Federal and Florida Constitutions.

2. This Hon. Court had jurisdiction over the ripe arbitrary final deprivations and

1969 confiscations under §§ 1983 and 1985.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Lee County O.R. 569/875;

Lee County Official Records 2967/1084-90.

”The rights of riparian landowners may not be arbitrarily abrogated or

restricted by the state or local government without a real relation to
legitimate governmental purpose.”

See 65 C.J.S. Navigable Waters s. 61b (1966).

“… the rights of riparian landowners are greater than those of the public.”

See Board of Trustees of the Internal Improvement Trust Fund v. Medeira Beach
Nominee, Inc., 272 So. 2d 209 (2 D.C.A. Fla., 1973); Richardson v. Beattie, 95 A.
2d 122 (N.H. 1953); People v. Hulbert, 91 N.W. 211 (Mich. 1902).

RELEVANT PART:
1. In this case, Defendants arbitrarily and capriciously abrogated Appellant’s
vested riparian rights without any police, eminent domain, or other legitimate
power, authority, or purpose.
2. The Hon. District Court had jurisdiction over said unconstitutional
confiscatory acts, which were not empowered by any legitimate governmental
authority or purpose.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Defendant State of Florida’s Map of Fire Sites

Defendants’ Map of Unlawful Camp and Fire Sites on private property in the
undedicated Cayo Costa Subdivision on Cayo Costa Island, Lee County, Florida.

RELEVANT PART:
1. Defendants State of Florida illegally operate camp and fire sites in the private
undedicated Cayo Costa Subdivision without due process, equal protection, and
just compensation. See 1912 Subdivision Plat. Said capricious park operation
was not an exercise of the police or eminent domain power and effected an
illegitimate physical invasion and confiscation. The Hon. District Court has
jurisdiction over Defendants’ willful deprivations of well established
Constitutionally guaranteed and Federal rights under §§ 1983 and 1985.
Appellant had a right to be free from said arbitrary and capricious government
action and threats to his life.
2. Admittedly, there are no public easements to access the illegitimate camp and
fire sites. Defendants’ attached Map is on public display in the Cayo Costa
State Park and induces the public to trespass onto Appellant’s private riparian
Gulf front Lot 15A.
3. Said unauthorized park and fire site operations caused the devastating April
2008 Cayo Costa fires, which destroyed Appellant’s property, real and
personal.

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 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record: Appellant’s March 2007 Letter to Def. Wilkinson

APPELLANT’S REQUEST FOR CORRECTION OF PROPERTY DATA

PLAINTIFF’S NOTICE OF CONSTITUTIONAL VIOLATIONS TO
DEFENDANT KENNETH M. WILKINSON

RELEVANT PART:
1. Defendant Appraiser knew that he was wrongfully

a. Materially misrepresenting Appellant’s property data and features;

b. Materially misrepresenting lot “A” and block “1”;
c. Altered the 1912 Plat to aid the alleged “land grab scheme”;
d. Willfully depriving Plaintiff Appellant of his well established Federal and
vested rights;
e. Conspiring to confiscate without any authority pursuant to ss. 1985 and
1983 and in violation of the Federal and Florida Constitutions.

E 14
 J. Busse
Mailing Address:
P.O. Box 1126
Naples, FL 34106-1126
March 31, 2007

CERTIFIED DELIVERY, U.S.P.S. # 70051820000640201345 W/ RET. REC.

PERSONAL
Hon. Kenneth M. Wilkinson, C.F.A.
Lee County Property Appraiser
Lee County Constitutional Complex
2480 Thompson St, 4th floor
Fort Myers, Florida 33901
CERTIFIED FAX to (239) 533-6160 on Monday, 04/02/2007, P.M.

RE: REQUEST FOR CORRECTION OF PROPERTY DATA FOR

Lee County Property 12-44-20-01-00000.00A0 and
Lee County Property 07-44-21-01-00001.0000.

Dear Mr. Wilkinson:

You stated your commitment ‘to be always looking out for Lee County
taxpayers’ and property owners’ best interests’. As our elected Lee County
Property Appraiser, you have been reportedly seeking to “bring about positive
changes for the residents of Lee County”.

HEREBY, you are notified that your Office has been INCORRECTLY
publishing Lee County property data and information for the following land
parcels A. and B. below, respectively:

A. PROPERTY DATA FOR PARCEL 12-44-20-01-00000.00A0.

B. PROPERTY DATA FOR PARCEL 07-44-21-01-00001.0000.

Property Details

Owner of Record
LEE COUNTY
PO BOX 398
FORT MYERS, FL 33902

Site Address
GOVT LOT CAYO COSTA
CAPTIVA, FL 33924 CAPTIVA, FL 33924
 “Legal Descriptions”

“CAYO COSTA PB 3 PG 25 ALL UNNUMBERED AND ACCRETED

LANDS” [A]

“ALL UNNUMBERED + UNDESIGNATED LOTS IN CAYO COSTA + LT K

BLK 32” [B]

Property Values (Tax Roll 2006)

Attributes 107.41 Acres 9.17 Acres

Just $1,933,380 $281,760

Assessed $1,933,380 $281,760

HEREBY, you are notified that

1. An appraiser “must NOT commit a substantial error of omission or

commission that significantly affects an appraisal; and NOT render

appraisal services in a careless or negligent manner, such as by making

a series of errors …”

2. Your Office “must properly identify the real property interests to be

valued, identify the characteristics of the property that are relevant to

the type and definition of value … and its location and physical, legal,

and economic attributes …”

3. Lee County (and its Board of County Commissioners) [hereinafter “Lee

County”] does NOT appear to be the Owner of Record of ALL

UNNUMBERED AND ACCRETED AND/OR UNDESIGNATED LANDS

AND/OR LOTS IN CAYO COSTA.

4. Lee County does NOT appear to have sufficient abutting riparian upland

interest(s) in the alleged ‘ACCRETED LANDS’.

5. Lee County does NOT own “ALL UNNUMBERED AND ACCRETED AND/OR

UNDESIGNATED LANDS AND/OR LOTS”. Under professional appraisal

standards, the alleged parcels of land CANNOT even be identified.

6. The Lee County Property Appraiser’s Record and the integrity of these

property data appear seriously flawed.

7. Under professional appraisal standards, your Office must ‘identify the

characteristics of these properties that are relevant to the type and definition

of value and intended use of the appraisal, including location and physical,

legal, and economic attributes; the real property interest to be valued; and

any known easements, restrictions, encumbrances, leases, reservations,

covenants, contracts, declarations, special assessments, ordinances, or other

items of a similar nature; and whether the property is a fractional interest,

physical segment, or partial holding.’ Your Office apparently failed to comply

and does NOT even appear to know the properties’ relevant characteristics.

8. Lee County does NOT appear to have satisfactory evidence of sufficient

abutting riparian upland interest(s).

9. “Official Record 569/875” does NOT appear to establish any sufficient

abutting riparian upland interest(s) by Lee County.

10. There are no conveyances of the alleged ‘LOTS AND/OR LANDS’ to Lee

County.

11. Lee County does NOT appear to claim the exercise of eminent domain.

12. Other transactions of Cayo Costa accreted lots and/or lands involving Lee

County appear to further substantiate the falsity of these records.

13. The property data and information do NOT appear to meet professional

appraisal standards.

14. The above descriptions do NOT appear to be proper “legal descriptions”.

15. Please provide proper legal descriptions.

16. Contrary to your own usual and customary practice, you do NOT properly

identify the property parcels on the respective aerial views.

17. Please CORRECT your publications and property data for these properties at

your earliest convenience.

18. What property records, conveyances, grants, (warranty) deeds did your Office

review and evaluate during your appraisal(s) of the above properties?

19. Please provide certified copies of any and all alleged conveyances,

ownership records, surveys, satisfactory evidence of abutting riparian upland

interest(s), and of all records in your work file [documentation necessary to

support the analysis, opinions, and conclusions by your Office].

20. Please specify how you arrived at 107.41 Acres and 9.17 Acres, respectively,

and what methodology/algorithm you applied.

21. Please clarify how your Office arrived at the ‘Just and Assessed Property

Values’.

22. In Lee County Official Record 2761, Page 0690, Instrument # 4059577, the

‘Printed Name of the Grantor’ appears to be EDGAR A. WILSON. However,

the signature of the Grantor does NOT appear to be identifiable and/or

consistent with other signatures by Edgar A. Wilson.

23. Please provide a verified/certified and notarized copy of the original Deed.
24. The alleged Deed references an “Acquisition approved by the Lee County

Board of Commissioners’ action on 10-2-96 and accepted on behalf of the

board by [illegible] on 11-1-96 …”.

25. Please provide detailed documentation of the referenced “Acquisition”.

26. Neither the alleged Deed nor any other referenced document appears to

convey the alleged interest(s) in “ALL UNNUMBERED AND ACCRETED

AND/OR UNDESIGNATED LANDS AND/OR LOTS IN CAYO COSTA”.

27. Under the circumstances, an APPRAISAL REVIEW appears to be warranted,

i.e. an independent opinion about the quality of the appraisal of these

properties which was performed by your Office.

These incorrect publications appear to seriously interfere with

CONSTITUTIOINAL property rights. WHEREFORE, I respectfully ask that

your Office execute the necessary corrections of these property records at

your earliest convenience in order to “maintain the highest level of

representation for Lee County taxpayers and property owners”.

Respectfully submitted,

s/J. Busse/
Certified Residential Appraiser
Appraiser Instructor
Licensed Real Estate Broker

CC: Brigham & Moore, Attorneys at Law

Lewis, Longman & Walker, Attorneys at Law

Lee County Property Appraiser - Online Parcel Inquiry Page 1 of 3
LEE COUNTY PROPERTY APPRAISER

PROPERTY DATA FOR PARCEL 12-44-20-01-00000.00A0

TAX YEAR 2007

Parcel data is available for the following tax years:

[ 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 ]

[ Next Lower Parcel Number | Next Higher Parcel Number | Display Tax Bills on this Parcel | Tax Estimator ]

OWNERSHIP, LEGAL, SALES AND DISTRICT DATA ARE FROM THE CURRENT DATABASE. LAND, BUILDING, VALUE AND EXEMPTION DATA ARE FROM THE 2007 ROLL.

PROPERTY DETAILS

OWNER OF RECORD [ VIEWER ] TAX MAP [ PRINT ]

LEE COUNTY
PO BOX 398
FORT MYERS FL 33902
SITE ADDRESS
GOVT LOT
CAPTIVA FL 33924
LEGAL DESCRIPTION
CAYO COSTA PB 3 PG
25 ALL UNNUMBERED AND
ACCRETED LANDS

[ PICTOMETRY ]

TAXING DISTRICT DOR CODE

050 - COUNTY/NO FIRE DISTRICT 86 - COUNTIES - OTHER

PROPERTY VALUES (TAX ROLL

2007) EXEMPTIONS ATTRIBUTES
[ HISTORY CHART ]
JUST 1,933,380 HOMESTEAD 0 LAND UNITS OF MEASURE AC
TOTAL NUMBER OF LAND
ASSESSED 1,933,380 AGRICULTURE 0 107.41
UNITS
ASSESSED SOH 1,933,380 WIDOW 0 FRONTAGE 0
TAXABLE 0 WIDOWER 0 DEPTH 0
BUILDING 0 DISABILITY 0 BEDROOMS
LAND 1,933,380 WHOLLY 1,933,380 BATHROOMS
BUILDING FEATURES 0 SOH DIFFERENCE 0 TOTAL BUILDING SQFT
LAND FEATURES 0 1ST YEAR BUILDING ON 0

http://www.leepa.org/Scripts/PropertyQuery/PropertyQuery.aspx?FolioID=10001519&AppraisalDetail=Tr... 5/2/2008
Lee County Property Appraiser - Online Parcel Inquiry Page 2 of 3

TAX ROLL
HISTORIC DISTRICT No

SALES/TRANSACTIONS
SALE OR TRANSACTION DETAILS VACANT /
DATE
PRICE NUMBER TYPE DESCRIPTION IMPROVED
100 12/1/1969 569/875 01 Disqualified (Doc Stamp .70 / SP less th $100 / Other V
Disq)
There are 1 additional parcel(s) with this document (may have been
split after the transaction date)...
07-44-21-01-00001.0000

SOLID WASTE (GARBAGE) ROLL DATA

SOLID WASTE DISTRICT ROLL TYPE CATEGORY UNIT/AREA TAX AMOUNT
007 - Upper Islands - 0 0.00
COLLECTION DAYS

ELEVATION INFORMATION
THIS CATEGORY MAY CHANGE IN SEPTEMBER 2008. TO VIEW THE NEW CATEGORY, CLICK HERE
FLOOD INSURANCE (FIRM FAQ)
STORM SURGE CATEGORY
RATE CODE COMMUNITY PANEL VERSION DATE
TS V13-EL12 125124 0136 C 110492

[ Hide ] APPRAISAL DETAILS

LAND
LAND TRACTS
USE NUMBER OF UNIT OF
USE CODE DESC
CODE UNITS MEASURE
Government Owned,
8210 107.41 Acres
Park

TRIM (proposed tax) Notices are available for the following tax years:
[ 1997 | 1998 | 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 ]

[ Next Lower Parcel Number | Next Higher Parcel Number ]

http://www.leepa.org/Scripts/PropertyQuery/PropertyQuery.aspx?FolioID=10001519&AppraisalDetail=Tr... 5/2/2008
 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record:

PLAINTIFF’S NOTICE OF FILING IN SUPPORT OF HIS NOTICE OF

APPEAL (DOC. # 341) as received by the Hon. District Court on May 16, 2007

RELEVANT PART:
1. Plaintiff’s claims were ripe for Federal adjudication. See Doc. # 341, p. 2, ¶ 7.
2. The Hon. District Court improperly dismissed Plaintiff Appellant’s ripe causes
of action, because they were final, and there were no requirements or conditions
not satisfied in this case.
3. The Hon. District Court confused the applicable taking standards. See Eide v.
Sarasota County, 908 F.2d 716, at 722 (11th Cir. 1990).
4. Here, there was no land use regulation, and the Hon. Court misapplied
Williamson County Reg’l Plann’g Comm’n v. Hamilton Bank, 473 U.S. 172
(1972).

E 15
 RELEVANT PARTS OF ANY DOCUMENT CENTRAL TO THE ISSUES

Document/Public Record:

PLAINTIFF’S RESPONSE (I) TO DEF. RUSSELL’S IMPROPER AND

FRIVOLOUS MOTION TO DISMISS AND FOR SUMMARY JUDGMENT,
AND MOTION FOR SANCTIONS IN THE RELATED FEDERAL
ACTION, CASE NO. 2:08-CV-364-JES-SPC

RELEVANT PART:
1. Defendant State of Florida’s unsupported “position” that the “platted road and
the accreted area are the property of Lee County” was fraudulent.
2. There is no title or conveyance in the name of Lee County in the Public
Records.
3. There is no platted lot “A” or block “1”, which cannot be found on the 1912
Plat (PB 3, PG 25).
4. Defendants agreed to fabricate and/or publish lot “A” and block “1”.
5. Defendants’ claim lacked legally defensible boundaries.
6. Because of said fraud, there was no valid claim and no need for quiet title
action.

E 16
 UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION

JENNIFER FRANKLIN PRESCOTT AND DR. JORG BUSSE,

Plaintiffs,

vs. Case No. 2:08-cv-364-JES-SPC

STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL

IMPROVEMENT TRUST FUND, STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROT., DIV. OF RECREATION AND PARKS;
HAROLD G. VIELHAUER, L. KATHRYN FUNCHESS, REAGAN K.
RUSSELL, REGINALD NORMAN, TOM BEASON; LEE COUNTY, FLA.,
BD. OF LEE COUNTY COMMISSIONERS; KENNETH M. WILKINSON,
LEE COUNTY PROP. APPRAISER’S OFFICE; LEE CTY ATTORNEY,
JACK N. PETERSON, DONNA MARIE COLLINS, DAVID M. OWEN;
SHERRI L. JOHNSON,

Defendants.
____________________________________________________________/

PLAINTIFFS’ RESPONSE (I) TO DEF. RUSSELL’S IMPROPER AND FRIVOLOUS

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT, AND
MOTION FOR SANCTIONS

1. Plaintiffs respond to Defendant Russell’s premature and frivolous “Motion to Dismiss

and Motion for Summary Judgment” (Doc. # 44). In the attached “Defendant,

Department of Environmental Protection’s, Response to Plaintiff’s Interrogatories # I-

X”, Defendant Russell answered at Interrogatory VII, on page 3:

“[i]t has been the position of the D.E.P. that the public records of Lee County
indicate that the platted road and the accreted area are the property of Lee
County.”

2. Contrary to Defendant Russell’s false and unsupported assertion(s) or “position”, the

Lee County Public Records indicate that Plaintiffs are the only legal owners of “the

platted road and the accreted area”. See Plaintiffs’ Complaint, Warranty Deed, and the
 4 Cayo Costa Subdivision Plats of Survey in Lee County Plat Book 3, page 25, and

Plat Book 1, pages 48, 51, and 52.

DEFENDANT RUSSELL ACTED IN BAD FAITH AND MUST BE SANCTIONED

3. In Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991),

the Supreme Court addressed the nature and scope of a Federal court's inherent power

to control the proceedings and the conduct of the parties involved:

“These powers are necessarily vested in courts to manage their affairs to

"achieve the orderly and expeditious disposition of cases."

Id.

“These inherent powers, which are incidental to a Federal court, include the
power to control and discipline attorneys appearing before it.”

Id. (citing Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531, 6 L.Ed. 152, 152 (1824)).

"A primary aspect of that discretion is the ability to fashion an appropriate

sanction for conduct which abuses the judicial process."

Id.

“For example, circumstances which may dictate the exercise of inherent power
to assess attorney's fees against counsel include those where a party has acted
in "bad faith”, vexatiously, wantonly, or for oppressive reasons."

Id. (citations omitted).

“The fact that rules such as Rule 11 have been promulgated by Congress does not
displace a court's inherent power to impose sanctions for parties' bad faith conduct.”

Id., 501 U.S. at 46, 111 S.Ct. at 2133, 115 L.Ed.2d at 46; Fellheimer, Eichen &

Braverman, P.C. v. Charter Technologies, Inc., 57 F.3d 1215, 1224 (3rd Cir.1995); see

also Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).

2
 DEF. RUSSELL WAS NOT ENTITLED TO SUMMARY JUDGEMENT

4. Summary judgment is only proper

"if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a
matter of law."

See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Here, e.g., confiscatory lot “A”, block “1”, and O.R. 569/875, and Defendant

Russell’s corrupt conduct and material misrepresentations were “genuine issues”.

5. Pursuant to the Court’s Order(s), Defendant Russell’s Motion was premature and

improper. Defendant Russell failed to provide any official documentation of the

existence of a lot “A”, block “1”, or “park” in the private undedicated Cayo Costa

Subdivision. In 1912, no lot “A”, block “1”, or “park” was platted. Defendants

Appraiser and Lee County admitted that private Cayo Costa was never dedicated to

the public. None of the 4 officially recorded Plats show any sign of a lot “A”, block

“1”, or “park”.

THE PUBLIC RECORDS ESTABLISHED DEFENDANT RUSSELL’S FRAUD

6. The very purpose of said 4 Plats was to clarify and simplify ownership through platted

legal descriptions of the lot-and-block type. Lot “A” was not a valid legal description,

because there was no lot “A”, block “1”, or “park” in Cayo Costa. What the Hon.

Court could have possibly not understood on November 7, 2008 remains a legal and

factual puzzle. See Transcript. Instead of accepting as true Plaintiff well pleaded and

supported allegations, the Hon. Court sanctioned Plaintiff Busse rather than the