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Rezoning request would bulldoze mangrove land for housing

Eden Oak seeks to build 55 homes near Shell Point Retirement Community

May 9, 2018
By JESSICA SALMOND (jsalmond@breezenewspapers.com) , Fort Myers Beach Bulletin, Fort Myers Beach Observer

Update:

Stakeholders have been notified that?? the Eden Oak development applicant has requested a continuance so the zoning hearing will be postponed to a future date to be announced.

Original story:

Article Photos

The Eden Oak property boundary is shown in the shaded portions: approximately 307 acres to be rezoned. The red area shows the proposed project boundary for building 55 homes — 51 on the west side of Shell Point Boulevard and four along the road on the east side. This map was a part of the application package.

Shell Point Boulevard could be growing.

Approximately 307 acres of environmentally sensitive land, owned under Eden Oak I LLC, is slated for a hearing before the Lee County Hearing Examiner May 18 for a rezoning request.

An application dated December 2016 seeks to rezone the acreage from agricultural zoning to a residential planned development, "Eden Oak," using about 45 acres to accommodate 55 new single-family homes and a canal to the Caloosahatchee.

Fact Box

Public participation

Lee County code restricts public participation to a very specific process for a rezoning case. Zoning cases are quasi-judicial.

Code says that county commissioners are not allowed to speak, email or communicate with the public or the applicant about a rezoning case, except in the public hearing.

Rezoning cases go before the Hearing Examiner and then the county. If someone wants the chance to express their opinion about a case to the county commissioners, they must attend the HEX meeting to have their name on the public record in order to speak before the county commissioners at the case's board meeting.

Letters of opinion can, however, be submitted to county staff to be sent to the Hearing Examiner for her consideration. Submitting a letter in lieu of attending the HEX meeting does not allow you to speak before the commissioners.

The LLC is registered to Romas Kartavicius of Mississauga, Ontario, Canada. Neither the property owner nor his attorney, Wayne Arnold of Grady Minor and Associates, could be reached for comment.

A Lee County Department of Community Development Zoning Section staff report recommends denial.

"Staff recommends DENIAL of the applicant's request. The request, as proposed, is inconsistent with the Goals, Objectives, and Policies related to the protection and enhancement of wetlands, the protection of wildlife habitat, the protection of life and property, the limitation of public expenditures within Coastal High Hazard Areas, and development within coastal planning areas established by the Lee Plan. The request, if approved, will adversely affect environmentally critical and environmentally sensitive areas and natural resources, and presents compatibility-related concerns to adjacent uses as a result of these adverse environmental impacts," staff said in its 135-page report in advance of the May 18 hearing.

Of the 45 acres, there are 13 acres of mangrove swamps and 5.8 acres of spoil area.

A summary of the acreage lists 2.47 acres of mangroves, 8.58 acres of wetland hardwood, and .9 acres of saltwater marshes as "invaded by exotics."

An environmental impact statement prepared for the applicant by W. Dexter Bender & Associates, Inc., of Fort Myers concluded that the 45 acres for development have already been disturbed by past clearing for Shell Point Boulevard, ditching and diking and that the wetland functions are "substantially degraded from their historical baseline function."

But this area has a history - and Rae Ann Wessel, policy director for Sanibel-Captiva Conservation Foundation, disagrees with the assessment of the wetlands.

The Sanibel Captiva Conservation Foundation sent a letter to the county dated April 13 expressing concern for the proposed development.

Wessel, who signed the letter, pointed out that the developer counts piles of soil left over from mosquito trenches dug into the mangroves as "uplands." It was a technique used in the 1950s to try to control mosquito populations, but was found to be ineffective and is no longer used.

"This land involved is all mangrove wetlands," she said.

It's not the first time a developer has sought to build in this section of Lee County. Forty years ago, Wessel said another developer attempted to build a development called The Estuary, a large, Cape-Coral canal concept subdivision.

The county denied the application, and the developer appealed, culminating in a 1981 Florida Supreme Court case, Graham v. Estuary Properties, Inc., which established protection of mangroves.

"Development interest in this parcel has a history of 40 years," Wessel said.

And she's been honed in on the next attempt since 2011.

While Eden Oak is just now getting to its rezoning hearing, it made an attempt to get a development through by starting with a permit to the South Florida Water Management District. The plan at that time was much larger, Wessel said, with more homes and also a large marina. It didn't make it through. The developer also submitted a comprehensive plan amendment to Lee County, but withdrew it and opted for the rezoning, instead, shrinking the scale of what it originally hoped to develop to what's on the table May 18.

The Eden Oak subdivision now will impact approximately 37 acres of wetlands. The applicant has purchased mitigation credits in the Little Pine Island Mitigation Bank to compensate for the destruction of mangrove habitats. It's a system set up by the county that allows developers to build, and if they can't mitigate their mangrove impacts on site, they can pay for another area's mangrove protection.

"That's 56 more yards, 56 more lawns of fertilizer runoff, 56 more concrete blocks, they can't address that," Wessel said.

According to the application, the remaining 261 acres of the property will remain in preserveland - although, the rezoning applies to the entire property.

"Development on this property has been proposed and appropriately rejected repeatedly over the past 40 years due to the critical location, services and functions of these wetlands," the letter states.

The property provides public protection from storm surges, flooding and provides critical habitat used by many native species, Wessel says in her letter.

Wessel said the use of the mitigation bank, which is in an entirely different area of the county, won't mitigate the impact of adding another 55 homes to Sanibel's only evacuation route.

With Hurricane Irma fresh in people's minds, Wessel hopes that concept is thoroughly thought-out. The McGregor/Summerlin route is the only way for the 9,000 island residents, and other residents of Shell Point Boulevard, to leave during a storm.

"This is such a bad idea," she said. "You bought it as agricultural zoned critical wetlands. What gave you the idea you were entitled for a rezoning?"

Her letter said more than half of Lee County's wetlands have been eliminated for development, increasing the storm surge hazard.

"This development proposes to permanently eliminate 36 acres of wetlands/surface waters and dredge 3 to 4 foot canals in an area that currently serves as the front line in protection of private and public property absorbing the detrimental effects of flooding and storm surge," Wessel's letter states.

The applicant also claims the wetlands are no longer viable because of previous disturbances and clearings - but Wessel points out those disturbances were illegal and unpermitted in 1984, and the land was partially restored later by the U.S. Corps of Engineers.

Since the applicant has asked for a rezoning, there is a very strict quasi-judicial procedure the county has to follow. County commissioners are not allowed to speak to residents or to the applicant about details of the rezoning case. Letters of opposition or support don't count toward the public record - instead, those who have something to say about the project must appear at the Hearing Examiner meeting first and speak on record there to be allowed to speak about the project at the application's County Commissioner hearing.

If that procedure isn't followed, members of the public can't speak on public record and have their voices heard one way or the other about Eden Oaks.

Local residents are making sure they will be heard, and are letting their neighbors know the process, too.

Mary Tracy Sigman is a resident of Palm Acres, the neighborhood just to the north of the proposal. There are about 120 homes there, she said.

"Environmentally, it's not sound," she said. "You're filling it in and adding a new road, adding new traffic."

Sigman's two main points of opposition are the detrimental effects to the mangroves and also the threat to human lives in case of an evacuation.

"The chances of another evacuation, it will happen. That's 100 plus more people, more cars," she said.

Eden Oak first applied for the water management permit just a year or two after Sigman moved to the community, and she's been following it ever since. She's grateful this proposal is scaled down from the original, but is still against it. She and other neighbors scheduled a community meeting Monday to discuss it - but unfortunately, the hearing is being held when a lot of her neighbors have headed north for the winter.

Sigman has never gotten involved with community activism concerning development before, but she's keeping her focus on Eden Oak. She worries, too, about adding new homes with the threat of a changing climate and sea level rise in the not-so-distant future, as well as the lasting impacts destroying the mangroves could have.

"The Caloosahatchee has problems, this would not help," she said. "So many developments in Lee County have been approved already. I'm fearful they won't be too concerned about this one."

Roger Ruddick, a San Carlos Island resident, was driving to a garage sale on Shell Point Boulevard when he saw the rezoning signs. The boulevard was lined with them, so he figured it must be something big, he said. When he got home, he looked it up - and immediately started contacting people to let them know what was going on.

Recently, he saw a picture from the very birth of Shell Point Boulevard, when it was just two men who wanted to build a church and care for the elderly, building a new road to their retirement community. Now when he drives on that road, he sees a golf course, homes, town houses, and high rises.

Ruddick was among the effort to establish Lee County's Conservation 2020 funding, and the purchase of Bunche Beach Preserve. So, he keeps a close eye on local development - and he's not in favor of paving over preserveland.

"They're destroying mangroves, that's lifeblood," he said.

 
 

 

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