Judges: K. N. AYERS
Agency: Office of the Governor
Latest Update: Dec. 30, 1977
Summary: Petitioner seeks Development of Regional Impact (DRI) for ecologically sensitive area. Recommend denial of permit because area is sensitive and DRI would adversely affect waters.
76-1560.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ESTUARY PROPERTIES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 76-1560DRI
) BOARD OF COUNTY COMMISSIONERS ) OF LEE COUNTY, FLORIDA et al. )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on January 17, 18, 19, 20, and 21, 1977 at Ft. Myers, Florida.
APPEARANCES
For Petitioner: Wade L. Hopping, Esquire and
Estuary William E. Williams, Esquire
Properties, Inc. Post Office Box 1567 Tallahassee, Florida 32301
For Intervenor: Howard S. Rhodes, Esquire
Marshall Post Office Box 1480
and Ilsley Bank Ft. Myers, Florida 33902
For Respondent: James T. Humphrey, Esquire
Board of County Post Office Drawer 846
Commissioners Ft. Myers, Florida 33902 of Lee County
Fred P. Bosselman, Esquire Charles L. Siemon, Esquire One IBM Plaza
Chicago, Illinois 60611 and
For Respondent: David E. Bruner, Esquire
Southwest Florida 959 28th Avenue North Regional Planning Council Naples, Florida 33904
For Respondent: Louis F. Hubener, Esquire
Division of 660 Apalachee Parkway
State Planning Tallahassee, Florida 32304
For Intervenor: Environmental Confederation of Southwest
Florida, Sanibel-Captiva Conservation Foundation, Inc., Caloosa Bird Club,
Iona-McGregor Federation
and Civic and Residents David Gluckman, Esquire Association, and Organized 5305 Isabelle Drive Fishermen of Florida, Tallahassee, Florida 32303
Lee County Conservation
Association, Inc., Florida P. Kevin Davey, Esquire Wildlife Federation, Post Office Box 1674
Inc., and George Wilson Tallahassee, Florida 32302
For Intervenor: Neal D. Bowen, Esquire
City of Sanibel 950 Periwinkle Way Sanibel, Florida 33957
RECOMMENDED ORDER
By Notice of Appeal and Petition filed August 20, 1976, Estuary Properties, Inc. (Petitioner) appeals the Development of Regional Impact (DRI) Developmental Order issued by the Board of County Commissioners, Lee County, Florida which denied its application to develop some 6,500 acres of land in Lee County, Florida. As grounds for the appeal it is alleged that the Developmental Order is unduly restrictive and thereby constitutes a taking of Petitioner's property without due process of law in violation of the Constitution of Florida and of the United States.
At a prehearing conference held October 28, 1976, all parties agreed that the issue respecting whether the Developmental Order constituted a taking of Petitioner's property was a judicial question involving a constitutional law determination and was beyond the purview of this administrative hearing.
At the prehearing conference it was further determined that the hearing on the appeal would be a de novo hearing and that all evidence considered by the Board of County Commissioners would be admitted into evidence, as well as additional testimony of witnesses supplementing this evidence. The issues to be determined are those contained in Section 380.06 F.S. viz, whether and the extent to which:
The development will have a favorable or unfavorable impact on the environment and natural resources of the region, including wild habitat;
The development will have a favorable or unfavorable impact on the economy of the region;
The development will efficiently use or unduly burden water, sewer, solid waste disposal, or other necessary public facilities including fire and police protection, education, etc.;
The development will efficiently use or unduly burden public transportation facilities;
The development will favorably or adversely affect the ability of people to find adequate housing reasonably accessible for their places of employment as well as emergency evacuation facilities if needed;
The development complies or does not comply with such other criteria for determining regional impact as the regional planning agency shall deem appropriate;
The development will favorably or unfavorably affect the energy resources of the region;
The development is consistent with local land development regulations,
and
The development is unusually restrictive as compared to other similarly
situated developments.
In addition to the five days of hearing at which some twenty expert witnesses testified and forty exhibits were admitted into evidence, including the Application for Development Approval (ADA) comprising some 1,700 pages, assessment of the ADA by the Southwest Florida Regional Planning Council (SWFRPC), transcript of the hearing held by the Board of County Commissioners, and transcript of the meeting of the Board of County Commissioners, (at which the ADA was denied) one evening session was held to obtain testimony from public witnesses.
FINDINGS OF FACT
The development application here under consideration involves some 6,500 acres of pristine land in a sensitive ecological environment in Lee County, Florida. Much of the land consists of what is usually described as wetlands. The tract is located some ten miles southwest of Ft. Myers, immediately east of Estero Island (Ft. Myers Beach) and its seaward boundary includes San Carlos, Hurricane, Hell-Peckish, and Estero Bays.
The major portion of the development consists of land known as the "Windsor Tract" and Petitioner is assignee of Windsor. Following the institution of a declaratory judgment action by Windsor against the State of Florida, the Trustees of the Internal Improvement Trust Fund (TIITF) on December 8, 1970 entered into a settlement agreement with Windsor whereby the boundary line between State and Windsor owned lands was delineated whether or not the agreed upon boundary line was above or below the actual mean high water line which has never been ascertained. The State quitclaimed to Windsor all interest landward of the boundary line and Windsor quitclaimed to the State all interest seaward of said boundary line. The agreement further provided that the TIITF would have no objection to Windsor applying for and receiving a bulkhead line coincident with said boundary line and a permit to dredge a perimeter canal 50 feet wide just inside this bulkhead line, plus three or four access channels from the perimeter canal northward through the tract to provide access to the sea from interior areas of the tract.
In addition to the Windsor tract, Petitioner acquired additional lands north and west of the Windsor tract to bring the total acreage proposed for development to 6,484 acres.
The property may be described as typically estuarine in nature largely occupied by a mangrove forest. Some 2,800 acres in the coastal rim of the property is comprised predominately of red mangroves receiving daily tidal flushings. A natural berm or levee some six to eight inches higher than the surrounding land meanders across the tract at an elevation of approximately 1.8 feet above mean sea level (msl). Between this berm and the salina the mangrove
forest is predominately black mangroves. Above the salina (line above which tides seldom rise) the land, which is 2 to 2.5 feet above msl at the salina, gradually rises to an elevation of 4 to 5 feet. Vegetation goes from salt grass at the salina to wax myrtle, rushes and exotic shrubs, cabbage palms and pines. The area of the tract above the salina comprises some 1,800 acres.
Petitioner's ADA proposes to deed back to the State the coastal area seaward of the berm (the predominately red mangrove area); leave untouched other pristine areas such as Cow Creek Slough, No Name Slough and natural lakes; dig an interceptor waterway immediately landward of the berm running from Hendry Creek on the east to the Tip Top Isles Canal on the west, a distance of some 7.5 miles; use the fill from the interceptor waterway, plus the fill from some 27 lakes to be dredged on the site, to raise the elevation of the land remaining for development to 5 to 6 feet above msl; and to construct, over a 25 year period, some 26,500 residential units comprised of town houses, garden apartments and elevator type apartments with parking on the ground level. This would place the first floor some 13.5 feet above msl. To accomplish this project zoning permitting a density for the entire 6,484 acres of 4.1 dwelling units per acre is requested.
The Petitioner envisions a total population upon completion of the project of some 73,500 people, predominately retirees and second home buyers, with a resulting population varying between 45,000 in the summer to the full occupancy of 73,500 at the height of the winter season. The Petitioner also envisions few school age children due to the large percentage of residents being second home buyers and retirees, since the development is oriented toward those groups.
Proposed dwelling units are one, two, and three-bedroom apartments ranging in price (1974 dollars) from $30,000 to $82,000 with a median price of
$47,000.
The interceptor waterway will vary from 250 to 800 feet wide, average
400 feet and have an average depth of 5 feet with a maximum depth of 7 feet. As finally proposed the waterway will not be open to the waters on either end and, for boats desiring to exit from the interceptor waterway to waters leading to the bays, hoists will be provided.
The interceptor waterway concept was derived from maricultural ponds where nutrient input is regulated to provide the food for shrimp or fish being cultivated and harvested. By locating the waterway at the existing berm elevation of 1.8 feet 220 tides per year will exceed this elevation bringing in marine organisms to consume the nutrients and exit on a subsequent tide. Other nutrients will be carried by the outgoing tide through the tidal mangrove area to the bays.
Runoff waters will enter the interceptor waterway after passing through "scrubber" lakes in each drainage district. These lakes vary in depth from 5 to 35 feet, with the majority being 35 feet deep. The drainage plan is designed for the runoff of waters from the impermeable surfaces created by the development to enter these lakes, flow from lake to lake over grassy swales to a subsequent lake before entering the interceptor waterway. This system is designed to meet water quality standards for runoff waters. Heavy metals are expected to be retained in the lake system and many nutrients are removed in the grassy swales between the lakes. Proposed lake areas comprise some 970 acres and no major conflict arose with respect to functions to be performed by the lakes.
The interceptor waterway as here proposed has never before been tried in a fully natural habitat. It differs from the maricultural ponds from which it was designed principally in that the nutrient input into the latter can be carefully controlled while the interceptor waterway will receive all nutrients water runoff brings its way. One reason for the denial of the development was due to the conclusions of the SWFRPC regarding the interceptor waterway. At p.
25 of Exhibit 7 the SWFRPC staff reported:
"In all, the 'Interceptor Waterway' concept that the applicant proposes to replace some of the functions of the destroyed wetlands, was found to be potentially useful but untested, and would require the destruction of a large mangrove forest."
In its conclusions the SWFRPC stated in Exhibit 7, page 67: "The proposed 'Interceptor Waterway', which
was designed to retain, filter and distri-
bute urban runoff, is conceptual in nature and has never been tested. Its design and performance is based on a series of questionable assumptions and has overlooked the complex mix of urban effluents which will enter the waterway.
Since the applicant was not able to demon- strate the viability of the Interceptor Waterway, the contamination of the Estero Bay Aquatic Preserve by excess nutrients, petrochemicals, pathogens, and other pollu- tants associated with urban runoff can be expected."
By Developmental Order (Exhibit 8) dated July 8, 1976, the Board of County Commissioners of Lee County denied the ADA submitted by the Petitioner listing 15 reasons for denial and included 12 changes to be incorporated into a new ADA to be submitted before the DRI approval would be granted.
In addition to the interceptor waterway the first listed reason for denial of the ADA in Exhibit 8 was the findings and recommendations submitted by SWFRPC which "are incorporated by reference and made a part of this order". One of the considerations cited in Exhibit 7 was Rule 29I-2.03(1)(l) and (m) which are policy guidelines for the SWFRPC in developments of regional impact. The policy there stated is for SWFRPC to:
"Encourage local governments to reject pro- posals for development in the coastal zone that threatened to degrade the quality or hamper the productivity of estuarine and bay environment.
Discourage development, adjacent to State Aquatic Preserves, from disturbing any high marsh areas or mangroves adjacent to the
aquatic preserve or an environmentally sen- sitive area."
Estero Bay has been designated an aquatic preserve by Section 258.39(28) F.S.
Petitioner received a letter of commitment from Florida Cities Water Company to provide potable water to the development. Florida Cities proposes to obtain the water from the Sandstone Aquifer. Preliminary studies indicate that this aquifer has adequate capacity to provide the potable water demands of the proposed development. However, the full potential and capacity of this aquifer is not known by anyone, including the governmental agencies which are conducting the extensive tests necessary to make this determination. One reason given by the SWFRPC for recommending denial of the application is that:
"The Sandstone Aquifer is an important potential water resource for Lee, Hendry and Collier Counties. Therefore, the Council's staff recommends that Lee County not make major commitments from the Sandstone Aquifer prior to completion of current ongoing studies of the Aquifer by the U.S. Geological Survey."
Petitioner's alternative proposal to use saline waters from the Lower Hawthorne and Suwannee Aquifers and to construct a reverse-osmosis plant to remove the salt was not accepted because:
"The applicant has failed to provide the SWFRPC staff and consultants with suffi- cient data to determine the possible impacts resulting from the proposed projects' tapping of the Lower Hawthorne Aquifer and Suwannee Formation for water supply purposes. Until detailed hydrological studies have been conducted, the SWFRPC staff cannot accept these saline resources as viable long-term water sources for the proposed project." (Exhibit 7, p. 35)
Petitioner proposes to use waste water treatment plant effluent for irrigation of lawns and golf courses at the development. Although this requires cooperation from the sewage treatment facility such use of the treated effluent appears to be a happy solution for both parties.
SWFRPC recommendations and conclusions respecting the population mix and housing patterns as proposed by applicant are that these have not been substantiated by documented information. Particularly the staff deems the user characteristics assumed by the applicant, viz, that 55 percent of the occupants of the housing units will be second home owners and that few children of school age will occupy the development is not accurate. For school age population mix the staff and county rely on the forecast by the Superintendent of Schools who uses the existing county-wide population mix to quantify the number of children expected in a population of 73,500 people.
The type of dwelling units proposed, the distance from likely places of employment, and the type recreational facilities proposed militate strongly
against a population mix containing the same percentages of school age children that exists throughout Lee County. On the other hand the estimate of number of school age children contemplated by Petitioner is probably too low and inadequate provision has been made by Petitioner for the impact the development will have on the school system. Petitioner has proposed providing a 55 acre site which would accommodate three schools.
Another reason offered for denying the application is that the proposed development will have a major negative impact on the area wide transportation network. Lee County roads are presently carrying more traffic than that for which they were designed. A priori reasoning leads to the conclusion that any additional population increase in Lee County will aggravate the situation with respect to these overburdened roads.
Furthermore, Lee County's road plan is projected only ten years into the future while the development of The Estuaries is projected twenty-five years into the future. No evidence was presented that the implementation of Lee County's ten year road development plan will be adequate to accommodate the more than 400,000 residents estimated to reside in Lee County in 1985.
As noted above there are nine principal issues Section 380.06 F.S. requires to be considered. The first and primary consideration is the effect the development will have on the environment and natural resources of the region. In order to provide the housing and recreational facilities proposed by Petitioner some 1,800 acres of black mangrove forest will be destroyed. While the value of black mangroves to the estuarine system has not received the study that has proven the value of red mangroves to the ecology of the area, the evidence presented clearly demonstrates that the black mangroves play an important function in the ecosystem and a function whose value is fully comparable to that played by the red mangroves. Accordingly destruction of this large acreage of black mangroves will have an adverse impact on the environment and natural resources of the region.
The interceptor waterway which is designed to perform part of the function performed by the black mangroves is not capable of absorbing the nutrients that can be assimilated by the 579 acres of black mangroves to be replaced by the interceptor waterway let alone the balance of the black mangroves Petitioner proposes to destroy when this area is filled. Furthermore the preponderence of the evidence is that the interceptor waterway as designed is not capable of assimilating the nutrients expected from the runoff of waters from the impermeable surfaces created by the proposed development. Thus this waterway would soon become eutrophic and incapable of assimilating any of the nutrient runoff. This would result in a serious degradation of the waters of the San Carlos, Hurricane, Hell-Peckish and Estero Bays into which runoff waters passing through The Estuaries flow, and to the marine environment presently served by the "scrubbing" function of the mangrove forest.
The series of lakes designed to retain the runoff are adequate for the purpose intended. However, the proposed depths of the majority of these lakes of 35 feet raises serious questions that were not answered at the hearing. Although the issue respecting the stratification and ultimate eutrophication of these deep lakes was inferentially raised during the hearing, no scientific evidence was presented from which a determination can be made with respect to viability of lakes of this depth. The recommendation of Petitioner's original consultants was for numerous shallow lakes to retain and scrub the runoff waters.
Since Petitioner proposes to raise the elevation of the land as much as four feet in many places and five times as much fill material can be taken from a 35-foot-deep lake than can be taken from a 7-foot-deep lake the deep lake appears essential to Petitioner's plans for development. The environmental impact of these numerous deep lakes remains questionable and this also militates against approval of the project pending resolution of this issue.
The effect the development will have on the economy, housing, and energy resources of the region are little, if any, different than any other project to provide 26,500 housing units in the area would have. If the population of Lee County increases as predicted over even the next decade, it would appear more beneficial, and in consonance with Chapter 380 F.S., if the growth coincided with planned developments - even large ones - than with a hodge podge of growth stimulated by the need to house the incoming population.
The proposed development site is in a hurricane zone and if evacuation is required this could cause some problems with existing evacuation routes, particularly if all residents of the affected area waited until the last minute to evacuate. Estero Island provides a buffer which will reduce, if not eliminate, most of the force of wind driven water. Furthermore, the hurricane connected water, principally tides, will have to pass through a considerable stretch of tidal mangroves which will further reduce that lateral speed, and hence the force of the hurricane tides that might be expected. The height of the first floors of all dwelling units 13.5 feet above msl, coupled with the geographical and topographical location of the development raises serious questions of the need to evacuate residents from The Estuaries even if a dangerous hurricane entered the coast from the gulf with the center passing up the Caloosahatchee River.
Whether or not the development will efficiently use or unduly burden water, sewer, solid waste disposal, public transportation facilities and other necessary public facilities is no different than would any other development introducing 26,500 dwelling units in the area. If the forecast population of Lee County is realized some 10 percent of this increase in population could be located in The Estuaries if the project is approved. If the public transportation facilities are presently overloaded, as the evidence indicated, any additional use will further overload the facilities. Petitioner has agreed (and could otherwise be so required before a building permit is granted) to construct all roads within the development in accordance with county specifications, to construct an access road to the development site and to provide the necessary traffic amenities to connect the access road to existing roads.
Use of the effluent from the county sewage treatment plant for irrigation purposes in the development clearly appears to be an efficient use of these facilities. Obviously all collection lines and facilities required within the project will be installed by Petitioner as well as access lines and lift pumps to the treatment plant. Large treatment facilities are generally more efficient than numerous small treatment plants.
Lee County has a serious potable water problem which will be exacerbated by an increasing population. Whether this increase in population resides in The Estuaries or elsewhere in the county will have little effect on the overall water problem, except that the proposed use of treated effluent for irrigation would result in The Estuaries using water more efficiently than other developments where potable water is used for irrigation.
The statutory requirement to consider whether the development will favorably or adversely affect the ability of people to find adequate housing reasonably accessible to their places of employment is not as relevant to a housing DRI as it would be to an industrial DRI. Of the maintenance personnel, clerks, firemen, domestic help, etc. that the development will employ, only a small percentage will find accommodations at the development. On the other hand those employed at the development will represent only a few people compared to the 73,500 residents.
No evidence was presented that the development would unfavorably affect the energy resources of the region other than the normally expected energy usage by the population to be housed.
The development is consistent with local land development regulations. Although the land on which it is proposed to locate this development is zoned RU1 this is the category in which all land not presently under development or approved for development is held. To say that the land is presently zoned to permit only one housing unit per acre, while technically correct, does not represent the true character of the existing zoning which in reality is better described as a holding category. All land is "held" in this category until the owner requests whatever zoning change he considers appropriate to the usage to which he desires to put the land.
But for the ecologically sensitive area involved the density proposed by Petitioner of 4.1 units per acre is consistent with local land development regulations. The Developmental Order proposed that Petitioner resubmit an ADA to provide for housing for 12.968 residential units placed upon some 1,800 acres above the salina line. The Developmental Order further provided that only town house, single family and garden apartment units would be approved and defined town house and garden apartment as "single family dwelling units constructed in a series or group of attached units with real property line separating each unit."
If only 1,800 acres above the salina line is approved for development the most acceptable dwelling mix from an economic standpoint would include 4 tower units 6 floors high with 10 units per floor with the first floor 10 feet above ground level. (Tr. p. 1007). This plan would also provide for lakes 400 feet x 1,200 feet with a depth of 5 to 8 feet which would provide adequate fill for the 1,800 acres involved.
The proposed findings of fact presented by Respondents detailing the ecological and economical value of the mangrove forest proposed for displacement by applicant are supported by the record and are consistent with the above findings. Any issues raised in the proposed findings which were not discussed above were deemed to be not pertinent to the determination. Applicant's proposed findings of fact and Conclusions of Law in conflict with the findings above are not concurred with. Any explicit repudiation of these proposed findings are impracticable at this stage of the proceedings due to applicant's exparte modification of the application upon which the hearing was held. Applicant has proposed, at this stage of the proceedings, the elimination of the interceptor waterway, the reduction of the units to be developed from 26,500 to 17,000, on the payment of an impact fee assessed equally upon all developers.
By so conditioning proposed findings applicant introduced factors not presented to the SWFRPC, Lee County, or to the hearing officer. Absent evidence upon which the impact of these proposed changes would have on the application as submitted; or more specifically, upon the factors required by Section 380.06(8) and (11) F.S. to be considered in approving an application for a DRI, no
findings, conclusions or recommendations on what has now become an amended ADA can or should be made. By its proposed revision, after all evidence has been submitted, applicant purports to present for consideration, and ostensibly approval, a proposed development which, in all fairness to all concerned should be presented first to the agency, viz. the SWFPPC designated by law to assess the developments of regional impact.
CONCLUSIONS OF LAW
The application submitted is for a development of regional impact and the hearing officer has jurisdiction over the parties and issues involved.
Section 380.06 F.S. provides the criteria for considering applications for developments of regional impact and subsection (11) thereof provides:
"If the development is not located in an area of critical state concern, in consi- dering whether the development shall be approved, denied, or approved subject to conditions, restrictions, or limitations, the local government shall consider whether, and the extent to which:
The development unreasonably interferes with the achievement of an adopted state land development plan applicable to the area;
The development is consistent
with the local development regulations; and
The development is consistent with the report and recommendations of the regional planning agency submitted pursuant to subsection
(8) of this section."
The criteria provided in Section 380.06(8) F.S. were contained in the pre-hearing conference order, are listed above in Paragraphs A through I before Findings of Fact and will riot be repeated here.
Inasmuch as no evidence was submitted that a state land development plan applicable to the area here involved is extant, the proposed development cannot be said to unreasonably interfere with this non-plan.
Although evidence was presented that Lee County has a land use planning department and that the county commissioners have approved a concept for land use planning, no such plan is currently in existence. Accordingly it cannot be said that the proposed development is inconsistent with the local land development regulation.
This leaves the third category, namely whether or not the development is consistent with the report and recommendation of the Regional Planning Agency submitted pursuant to subsection (8) of Section 380.06 F.S. If not consistent therewith the question remains whether or not the objection posed by the Regional Planning Council, and adopted by Lee County, are unreasonable and unduly restrictive. The plan Lee County ostensibly indicated it would approve provides for a development with a density limited to two units per acre with the entire development concentrated on 1,800 acres above the salinas. Allowing the developer the use of the 6,484 acres in his entire tract in determining the
total number of dwelling units that can be built would allow 12,968 units. Whether such approval amounts to an unreasonable and unduly restricted development of the property depends upon the effects to be anticipated from any other development.
The primary concern and the most serious objection to the development posed by the regional planning council involves the destruction of some 1,800 acres of mangrove forest and the replacement therewith with an interceptor waterway comprising nearly 500 acres.
In enacting Chapter 380 F. S. the intent of the Legislature as expressed in Section 380.021 F.S. is:
".... that, in order to protect the natural resources and environment of this state as provided in s.7, Art. II of the State Constitution, insure a water management system that will reverse the deterioration of water quality and provide optimum utili- zation of our limited water resources, facilitate orderly and well planned develop-
ment, and protect the health, welfare, safety and quality of life of the residents of this state, it is necessary adequately to plan for and guide growth and development within this state. In order to accomplish these purposes, it is necessary that the state establish land and water management policies to guide and coordinate local decisions relating to growth and development; that such state land and water management policies should, to the maximum possible extent, be implemented by local governments through existing processes for the guidance of growth and development; and that all existing rights of private property be preserved in accordance with the constitution of this state and of the United States."
Removing 1,800 acres of mangrove forest, which is presently serving as the protector of San Carlos, Hurricane, Hell-Peckish and Estero Bays from pollution from upland runoff, would result in greatly increasing these bays to the risk of pollution. While the applicant proposes to provide equivalent or better protection by the creation of the interceptor waterway, the evidence clearly establishes that the proposed interceptor waterway will not provide the same nutrient removal capacity as does the mangrove forest and that if this forest is removed pollution of these bays with urban runoff from the proposed development will be the concomitant result.
Inasmuch as these bays provide valuable resources in the form of fish and other economically related marine life the pollution or eutrophication of these bays would have an adverse impact on the economy of the area.
This issue, as with all issues here involved, goes to whether the restriction imposed upon applicant's use of his land is unreasonable. It is Hornbook law that an owner may use his land as he sees fit so long as such use is not deleterious to his neighbor's use and enjoyment of the adjoining land.
This has, in more recent years, been extended from the older common law concepts that restricted only against creating nuisances to requiring the owner to protect his neighbor's land as well as state owned waters from the effects of water runoff both from an erosion factor as well as from a polluting factor.
Here the introduction of additional nutrients, as well as harmful heavy metals from the proposed development will, absent the scrubbing effect of the mangrove forest if this forest is removed, result in the degradation of the waters of the adjoining bays. Requiring the land owner to refrain from such degradation of state owned waters is both a reasonable restriction on the use of his land and a requirement of Chapter 380 F. S.
Had the proposed interceptor waterway been shown to provide the protection contended for by applicant the removal of the mangrove forest to allow the proposed development could perhaps be justified. However, since the proposed interceptor waterway was not shown to be capable of assimilating the nutrients entering the waterway its use would not prevent the degradation of the bay waters.
While this determination is dispositive of the Developmental Order issued by Lee County to deny the application, other reasons given for denial merit comment. Some of these reasons, standing alone, would constitute unreasonable restrictions on the use of the applicant's land.
Among these are requirements of the regional planning council and the Developmental Order that applicant conduct the inordinately time consuming and expensive research to ascertain the existing water quality of Estero Bay in order that future changes in the bay can be monitored, and that applicant conduct the geological and hydrological studies required to ascertain the extent and capacity of the Sandstone, Hawthorne, and Suwannee aquifers.
The provisions in the Developmental Order requiring applicant as a condition to approval of an amended ADA to submit an amended DRI application limiting development to town houses and garden apartments as defined therein is not consonant with the evidence presented regarding an acceptable usage to which the property can be subjected.
The requirement that applicant present a proposal to aid Lee County in funding the cost of the impact of the proposed development will have on schools, roads, emergency services and recreational facilities required to accommodate the development is of questionable validity in view of the evidence that no such impact fees have ever been required of any other developer. However, in its proposed findings and conclusions applicant has offered to pay an impact fee if all other developers are likewise required to do so. Other requirements of the Developmental Order are so vague and indefinite that it is doubtful applicant could ascertain what he would be required to do to obtain approval.
From the foregoing it is concluded that the proposed development would have an adverse impact on the ecology of an environmentally sensitive area and would result in the degradation of the waters of San Carlos, Hurricane, Hell-Peckish and Estero Bays with a resulting adverse impact on the economy of the area. It is therefore,
RECOMMENDED that the appeal be denied.
DONE and ENTERED this 20th day of June, 1977, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
COPIES FURNISHED:
Honorable Reubin O'D. Askew Mr. L. H. Whan, Chairman Governor Lee County Board of
State of Florida County Commissioners
The Capitol Post Office Box 398 Tallahassee, Florida 32304 Ft. Myers, Florida 33902
Honorable Robert L. Shevin David E. Bruner, Esquire Attorney General 959 28th Avenue North
The Capitol Naples, Florida 33940 Tallahassee, Florida 32304
Wade L. Hopping, Esquire
Honorable Doyle Conner William E. Williams, Esquire Commissioner of Agriculture Post Office Box 1567
The Capitol Tallahassee, Florida 32301 Tallahassee, Florida 32304
Fred P. Bosselman, Esquire Honorable Ralph Turlington Charles L. Siemon, Esquire Commissioner of Education One IBM Plaza
The Capitol Chicago, Illinois 60611 Tallahassee, Florida 32304
Neal D. Bowen, Esquire
Honorable Bruce Smathers 950 Periwinkle Way
Secretary of State Sanibel, Florida 33957 The Capitol
Tallahassee, Florida 32304
Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol
Tallahassee, Florida 32304
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32304
David Kern, Esquire General Counsel
Department of Administration Carlton Building Tallahassee, Florida 32304
David Gluckman, Esquire
3348 Mahan Drive
Tallahassee, Florida 32303
Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302
Louis F. Hubener, Esquire Division of State Planning 660 Apalachee Parkway
Tallahassee, Florida 32304
James T. Humphrey, Esquire Post Office Drawer 846
Ft. Myers, Florida 33902
Mr. Roland Eastwood Executive Director Southwest Florida Regional Planning Council
2121 West First Street Ft. Myers, Florida 33901
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
ESTUARY PROPERTIES, INC.,
Petitioner,
vs. CASE NO. 76-1560
APPEAL NO. 76-8
BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA et al.
Respondents.
/
FINAL ORDER
This appeal, brought pursuant to Section 380.07, Florida Statutes, was considered by the Florida Land and Water Adjudicatory Commission, on final hearing after notice, on December 20, 1977.
On August 20, 1976, the developer, Estuary Properties, Inc., appealed a Development Order issued by the Board of County Commissioners of Lee County, denying the development of "The Estuaries" on 6,500 acres of land in Lee County. In the Development Order, the County denied the application for 15 stated
reasons and followed it with 12 stated changes necessary to make the development eligible to receive a permit.
The appeal was referred to the Division of Administrative Hearings for formal proceedings. The assigned hearing officer, K. N. Ayres, conducted a de novo hearing in Fort Myers on January 17, 18, 19, 20 and 21, 1977, under the provisions of Section 120.57(1), Florida Statutes. Appearances were entered by:
Representing Estuary Wade L. Hopping, Esquire and Properties, Inc., William E. Williams, Esquire Petitioner: Post Office Box 1567
Tallahassee, Florida 32301
Representing Marshall Howard S. Rhoads, Esquire and Ilsley Bank, Post Office Box 1480 Intervenor: Ft. Myers, Florida 33902
Representing Board of James T. Humphrey, Esquire County Commissioners Post Office Drawer 846
of Lee County, Ft. Myers, Florida 33902 Respondent:
Fred P. Bosselman, Esquire Charles L. Siemon, Esquire One IBM Plaza
Chicago, Illinois 60611 and
Representing Southwest David E. Bruner, Esquire Florida Regional David E. Bruner, Esquire Planning Council, 959 North 28 Avenue Respondent: Naples, Florida 33904
Representing Division Louis F. Hubener, Esquire of State Planning, 660 Apalachee Parkway Respondent: Tallahassee, Florida 32304
Representing Environmental Confederation of Southwest Florida, Sanibel-Captiva Conservation Foundation, Inc., Caloosa Bird Club, Iona-McGregor Federation and Civic and Residents
Association, and Organized David Gluckman, Esquire Fishermen of Florida, 5305 Isabelle Drive Intervenors: Tallahassee, Florida 32303
Representing Lee County Conservation Association,
Inc., Florida Wildlife P. Kevin Davey, Esquire Federation, Inc., and Post Office Box 1674 George Wilson, Intervenors: Tallahassee, Florida 32302
Neal D. Bowen, Esquire Representing City of 950 Periwinkle Way Sanibel, Intervenor: Sanibel, Florida 33957
On June 15, 1977, the developer filed Proposed Findings of Fact and Conclusions of Law and a Proposed Development Order. On June 22, 1977, the Respondents filed a Motion to Dismiss the appeal or either to direct developer to submit an amended ADA or remand the appeal for hearing of evidence on the revised proposal.
On June 20, 1977, the Hearing Officer entered his Recommended Order containing Findings of Fact and Conclusions of Law. He concluded that the proposed development would have an adverse impact on the ecology and the economy of the area and recommended that the appeal be denied.
Exceptions to the Recommended Order were filed by Estuary Properties, Inc., by Marshall and Ilsley Bank, and by Lee County and Southwest Florida Regional Planning Council. The exceptions are copied verbatim in the Statement of Exceptions which is attached to this Final Order and made a part thereof. The parties stipulated that the hearing before the Adjudicatory Commission should not be held prior to December 18, 1977.
At its meeting on December 20, 1977, the appeal was presented to the Commission for final hearing by Mr. Wallace W. Henderson, Secretary of Administration. After hearing argument of counsel for the parties, the Commission entered the following order:
ORDER
The Florida Land and Water Adjudicatory Commission orders:
That the hearing officer's Recommended Order, containing his Findings of Fact, Conclusions of Law and Recommended Order, is adopted as the Order of the Commission.
That all exceptions to the Recommended Order are denied and the rulings on the parties' exceptions shown on the attached Statement of Exceptions are adopted as the rulings of the Commission thereon.
Entered in Tallahassee, Florida by the Florida Land and Water Adjudicatory Commission through the Secretary of Administration this * day of December, 1977.
*Final Order filed with DOAH 12-30-77 is undated.
Wallace W. Henderson Secretary of Administration
COPIES FURNISHED:
Members of the Commission Counsel of Record
Hearing Officer
Docket for Case No: 76-001560
Orders for Case No: 76-001560
| Issue Date |
Document |
Summary |
|
Dec. 30, 1977 |
Agency Final Order
|
|
|
Jun. 20, 1977 |
Recommended Order
|
Petitioner seeks Development of Regional Impact (DRI) for ecologically sensitive area. Recommend denial of permit because area is sensitive and DRI would adversely affect waters.
|
