.

THE RESPONSIBLE GROWTH MANAGEMENT COALITION

Highlights of Actions from 1988 to March 2003

Compiled by Edith B. Slayton with assistance from Gene and Ellie Boyd and John Cassani

When the Florida legislature’s 1985 Growth Management law allowed citizen participation in the planning process, environmental and civic organizations began to monitor growth in Lee County. They focused on the Future Land Use Map (FLUM), a part of the County Comprehensive Plan (Lee Plan), and opposed amendments that emanated from developers. Unfortunately, the Lee County Board of County Commissioners (BOCC), under intense pressure by the development community, totally disregarded their concerns about rampant growth in the area. The Responsible Growth Management Coalition (RGMC) was incorporated in 1988 to fight back. It represented organizations and individuals in Bonita Springs, Cape Coral, Estero, Fort Myers Beach, Fort Myers, Pine Island and Sanibel and opposed development inconsistent with the FLUM and growth management guidelines set forth in Chapter 163 Florida Statutes and Rule 9J-5 of the Florida Administrative Code.

The RGMC was instrumental in getting about one-fifth of Lee County lands designated as Density Reduction/Groundwater Resource Areas (DR/GR). Development in these areas is limited to one residence per ten acres of uplands and one residence per 20 acres of wetlands. This was done to protect aquifer recharge and limit urban sprawl. The Coalition has consistently defended this reduced density when it comes under attack by the development community. In 1992 a legal complaint by the RGMC resulted in the BOCC rescinding a zoning approval permitting a 390-acre golf course in a designated DR/GR adjacent to the Corkscrew Well-Field. This violation of the Lee Plan endangered the county’s drinking water.

That same year, RGMC entered into a legal dispute between a ferry owner and the Department of Natural Resources (DNR) over a shallow channel in the Estero Bay Aquatic Preserve where boat propellers scarred sea grass beds. An agreement was reached to replace the existing channel with a longer, deeper water route. And, after RGMC action supporting the Florida Department of Community Affairs (DCA), the BOCC decreased the amount of development allowed on two parcels of land in Buckingham near a Florida panther and black bear corridor. However, despite strong objections by the RGMC, the BOCC deleted the requirement for wildlife corridors from the Lee Plan in 1992.

During 1992, the Florida Board of Regents’ choice of the Alico site for the tenth state university was challenged by the RGMC on the grounds that the site selection process was flawed and approval of the Alico location carried serious environmental and growth management implications for Lee County. A new university was not opposed per se but the 850-acre university site was only a small part of an 11,000 acre (16 square mile) site owned by the Alico Corporation and the Coalition believed the donation of the land for the university, along with the funding of several endowed chairs, was a ploy to eventually get development approval for the whole 11,000 acre parcel, which was in the DR/GR. Prime concerns over a development of the size were the impact on potable water supplies and damage to the Estero Bay Aquatic Preserve and wildlife habitat. The RGMC’s 1995 legal challenge of the university’s Surface Water Management permit from the South Florida Water Management District (SFWMD, The District) resulted in a more environmentally sensitive permit and the formation of the Estero Bay Agency on Bay Management (ABM). The ABM assesses the impact of proposed development in southeast Lee County on the health of Estero Bay and its watershed. The agency has no regulatory powers but occasional attacks by Lee County commissioners proves it has been effective in fulfilling its mandate over the years.

In 2000, Commissioner John Manning sympathized with Economic Development Council complaints about ABM actions and threatened to abolish it. He dropped the action when attorneys informed him that the ABM was created by court action and not subject to legislative jeopardy. Again, in March 2001, Commissioner John Albion, at the instigation of the development community, asked the Southwest Florida Regional. Planning Council (SWFRPC) to abolish the ABM, charging it had become too cozy with, and useful to, environmentalists. Members of the RGMC, along with several attorneys, appeared before the SWFRPC and pointed out the usefulness of the ABM and reminded them that the ABM is a legally required subcommittee of the SWFRPC. The matter was dropped.

The RGMC and Manasota-88, represented by Attorney Tom Reese, successfully reinstated important provisions in the Department of Environmental Regulation’s (DER) state mangrove protection rules. Bowing to property owners on both coasts, the 1992 Florida legislature passed two bills that seriously undermined the DER’s ability to protect mangroves. Governor Chiles vetoed the legislation. Undaunted, the same landowners pressured the DER to seriously weaken its mangrove protection rules. A negotiated settlement brokered by Attorney Reese eliminated the worst of the proposed changes and reinstated crucial provisions of the previous rules. For example, mangroves cannot be cut in their fruiting season or when occupied by nesting birds.

In 1992, the RGMC challenged the BOCC’s moving three square miles in the DR/GR land use category to urban development status to allow residential development by the Gargiulo family and others. This area recharges the Lower Tamiami Aquifer that provides drinking water for Bonita Springs. The RGMC didn’t stop the development, but in 1997, the DCA and Gargiulo agreed upon a settlement that changed the zoning from one unit per ten acres to one unit per acre, with conditions that residential development be clustered to maximize open space; that five acres be reserved for commercial uses; and that commercial development be aggregated on any area of the development.

The RGMC believed that Westinghouse’s Pelican Landing development was inconsistent with the Lee Plan and objected in a 1994 hearing. The Hearing Examiner ruled against building on a small upland island in the mangroves, numerous 200-foot high-rises, and too much development in the Coastal High Hazard area without proper provision for hurricane evacuation and shelter. The BOCC ignored this ruling and approved all of the development. When the RGMC took the case to Circuit Court, Judge Thompson dismissed the case due to lack of standing. An appeal to the Second District Court of Appeal early in 1995 was also dismissed, setting a terrible precedent for other citizen organizations planning to get involved in growth management issues. At the state level, formidable enemies of growth management passed a number of “property rights” bills in the 1994 legislature. When Governor Chiles vetoed all of them, big landowners turned to the constitutional amendment route. Several proposed amendments would have totally destroyed growth management in Florida. The Florida Supreme Court removed all of these from the ballot except for one, approved by the voters, that makes it easier to get anti-growth management amendments on the ballot.

Early in 1994, the county submitted an Evaluation and Appraisal Report (EAR) on the Lee Plan two years earlier than necessary. Then, using the EAR as an excuse, the BOCCamended the Lee Plan and essentially “gutted” it to eliminate growth management in the county. The SWFRPC and its planning staff, who are supposed to play an important part in growth management, approved the county’s terrible EAR amendments, saying they were consistent with the Regional Policy Plan. However, the Florida DCA, overseer o. local comprehensive plans, found that the amendments violated 54 of the policies in the Regional Policy Plan and were not in compliance with state law. They called for an administrative hearing. The RGMC took out a full-page ad in the Fort Myers News Press telling the public what was happening to their Comprehensive Plan and intervened on the side of the DCA. Much of the development community intervened on the side of the county. After a two- and-a-half-week hearing in September 1995, the case was sent to Tallahassee for a final decision. Members of the RGMC and Attorney Reese attended a meeting with the Governor and Cabinet on July 17, 1996. The DCA and the RGMC were supported on ten of the twelve issues, and growth management in Lee County was saved.

After much prodding, the BOCC placed a referendum on the 1996 ballot to levy a seven- year ad valorem tax of 0.5 mils earmarked for the purchase and management of environmentally sensitive land. RGMC members worked for the referendum with letters of support and house-to-house canvassing for votes. Its passage enabled Lee County to have an active and well-managed land acquisition program that preserves natural habitat, supports eco-tourism, manages water resources and enhances adjacent property values. The RGMC carefully monitors purchasing by the Conservation Land Acquisition Stewardship Advisory Committee (CLASAC) to ensure that they adhere to their mandate of only purchasing unprotected environmentally sensitive land from private owners.

Early in May 1998, the BOCC rejected the advice of its own planning department and rezoned a 1,286-acre site along the north bank of the Estero River, granting a density increase from 900 to 1,598 units to the Sahdev Corporation, developers of Estero River Bay. The number was two units shy of the density that triggers an Environmental Impact Study. Sahdev planned to build a 40,000-square-foot clubhouse, high-rise buildings, a golf course, and other amenities along the river. This environmentally sensitive site had been assigned high priority for acquisition and preservation by the state’s Conservation and Recreational Lands Advisory Committee. The U. S. Army Corps of Engineers, concerned about the rate at which Lee County’s wetlands were being gobbled up by developers, conducted an Environmental Impact Study in the same area. Charging that members of the BOCC had willfully ignored the Lee Plan by allowing the increased density, the RGMC challenged the Commission by filing a verified complaint on June 3. The BOCC refused to reconsider their position.

A coalition of environmental organizations led by RGMC took Lee County to court. Others in the coalition were the Citizens Association of Bonita Beach, the Environmental Federation of Southwest Florida (ECOSWF), the Conservancy of Southwest Florida, and Save the Manatee Club. The Sanibel-Captiva Conservation Foundation and Audubon of Southwest Florida filed amicus curiae briefs, while the cities of Sanibel and Fort Myers Beach voted to support the action. Attorney David Rynders represented the group. Circuit Court Judge Wallace Pack ruled that the RGMC did not have standing to sue Lee County over the illegal rezoning of the Sahdev property. On appeal, the Second District Court of Appeal upheld the Circuit Court ruling. Attorney Rynders then filed a petition asking the Appeal Court to review their decision denying standing. The decision to deny was upheld and the Coalition planned to appeal to the state Supreme Court if the state did not purchase the property. The strategy was to postpone development by prolonging the matter in court until the state could purchase the land. In late June 1999, the Governor and Cabinet voted unanimously to use the power of eminent domain and seize the property. It cost them over $10 million more because the BOCC gratuitously and illegally doubled the density. When the state took title to the land, the RGMC withdrew the lawsuit. Today the Estero Bay State Buffer Preserve is considered the crown jewel in the mangrove fringe, saltwater marsh, pine flatwoods and sand scrub that shield the bay and its tributaries from the impact of development.

In 2000, the RGMC joined a 19-member coalition led by the Save the Manatee Club that legally challenged both the federal and state governments’ lack of enforcement of protected species laws as they pertain to manatees. The settlement required the U.S. Fish and Wildlife Service to develop new rules for manatee protection that conform to federal statutes, and to create manatee sanctuaries and refuges. It was also agreed that the Army Corps of Engineers and the U.S. Fish and Wildlife Service would deny marina permits as interim protection measures until new federal rules and regulations to protect the manatee and its habitat are implemented. As a part of the state settlement, the Florida Fish and Wildlife Conservation Commission agreed to upgrade the Florida Marine Patrol with more officers; standardize the counting of manatees; provide uniform signage throughout the state; and strictly enforce more stringent rules and regulations to protect manatees.. Concern about the degradation of the Caloosahatchee River and the estuary by excessive or inadequate fresh water discharges from Lake Okeechobee spurred the RGMC, Save the Manatee Club and ECOSWF to challenge the South Florida Water Management District’s release practices.

In April 2000, Washington D.C. attorneys representing the coalition wrote the SFWMD and cited appropriate federal statutes that govern the timing of releases and the coalition’s intent to sue for noncompliance. Under the District’s policy, a recovery and prevention plan is to be implemented when an estuary, damaged from Okeechobee releases, is in a recovery mode. There must be two consecutive years of Minimum Flows and Levels (MFL) violations before Phase III restrictions are implemented, but that is unlikely under the seemingly special circumstances of the Caloosahatchee River MFL. By challenging the SFWMD, the RGMC and others may have legal standing to later sue the District if that policy and other policies are not changed. In July 2000, the letter of intent to sue the SFWMD was amended to include the District’s violation of the Endangered Species Act by alteration and destruction of sea grasses from prolonged retention of water and a sudden massive release of fresh water and toxic algae from Lake Okeechobee into surrounding rivers. The District’s new rules on Minimum Flows and Levels were also a concern, particularly when they allowed back pumping of highly contaminated water into Lake Okeechobee from nearby farmland to maintain minimum levels in the lake. Early in 2001, RGMC protested the Governor’s Growth Management Commission’s recommendation that the Legislature return control of planning to local officials, abolish the Development of Regional Impact (DRI) requirement, abolish the Regional Planning Councils, and abolish state oversight of planning by the Department of Community Affairs. The legislation failed.

The Florida Gulf Coast University attempted to include in its Master Plan the conversion of campus preserves to parking lots and other uses. The RGMC protested vigorously and threatened to take legal action until the offending changes were removed. Meanwhile, land adjacent to the university dedicated to uses supporting university activities was rezoned to less compatible uses. Unfortunately, the Florida Gulf Coast University administration is not acting in a way consistent with the university becoming known as the environmental university as was promised at its inception.

In a September 2002 listing of impaired waters, the Florida Department of Environmental Protection (DEP) stated that all the tributaries to Estero Bay were fresh water to the mouth of the tributary. It was obviously wrong because Estero Bay is tidal, and salt and fresh water are mixed (estuarine) for some distance up the tributary. The correctness o. this listing is important because regulations permit higher levels of pollutants and lower levels of dissolved oxygen in fresh water as compared to estuarine.

The RGMC, joined by the Sierra Club, the Conservancy of Southwest Florida and ECOSWF hired an attorney to challenge the listing. All parties met and reached a compromise that U.S. 41 would be the boundary in each of the tributaries and maximum amounts of specific pollutants and minimum amounts of dissolved oxygen will be set for each segment of each tributary. Having waters designated as impaired will allow pertinent agencies to address watershed problems through better planning, improved stormwater management, and permitting.

Current challenges to the designation of DR/GR in the Lee Plan are the Miromar Lakes development trying to change 24 acres to urban, and the Ginn Company’s 1400-home golf course development primarily in the DR/GR. The RGMC opposes both of these cases, and will go to court if necessary. Another challenge to the DR/GR is Babcock Ranch, a 90,000-acre parcel in south Charlotte and north Lee counties. All 6,500 acres of the land in Lee County is designated DR/GR. A proposal to build a city housing 50,000 people in the southwest corner of the property would require a FLUM change to urban. The RGMC is advocating that the entire ranch be purchased by the state, the two counties, or foundations. This acreage would provide a badly needed wildlife corridor and greenway from Lake Okeechobee to the Gulf of Mexico.