Estuary Properties, Inc. v. Askew

• Decision Date: 17 December 1979
• Docket Number: No. II-419,II-419
• Citation: 381 So.2d 1126
• Parties: ESTUARY PROPERTIES, INC., Petitioner, v. Honorable Reubin O'D. ASKEW, Governor of the State of Florida, Honorable Bruce A. Smathers, Secretary of State of the State of Florida, Honorable Robert L. Shevin, Attorney General of the State of Florida, Honorable Gerald A. Lewis, Comptroller of the State of Florida, Honorable Bill Gunter, Treasurer and Insurance Commissioner of the State of Florida, Honorable Ralph D. Turlington, Commissioner of Education of the State of Florida, and Honorable Doyle Conner, Commissioner of Agriculture of the State of Florida, as members, together constituting the Florida Land and Water Adjudicatory Commission; Board of County Commissioners of Lee County, Florida, Southwest Florida Regional Planning Council, Division of State Planning of The State of Florida, Environmental Confederation of Southwest Florida, Sanibel-Captiva Conservation Foundation, Inc., Caloosa Bird Club, Iona-McGregor Federation of Civic and Residents Association, Organized Fishermen of Florida, Inc., Lee County Conservation Association, Inc., Florida Wildlife Federation, Inc., George Wilson, and City of Sanibel, Florida, Respondents.
• Court: Florida District Court of Appeals

Page 1126

381 So.2d 1126

ESTUARY PROPERTIES, INC., Petitioner, v. Honorable Reubin O'D. ASKEW, Governor of the State of Florida, Honorable Bruce A. Smathers, Secretary of State of the State of Florida, Honorable Robert L. Shevin, Attorney General of the State of Florida, Honorable Gerald A. Lewis, Comptroller of the State of Florida, Honorable Bill Gunter, Treasurer and Insurance Commissioner of the State of Florida, Honorable Ralph D. Turlington, Commissioner of Education of the State of Florida, and Honorable Doyle Conner, Commissioner of Agriculture of the State of Florida, as members, together constituting the Florida Land and Water Adjudicatory Commission; Board of County Commissioners of Lee County, Florida, Southwest Florida Regional Planning Council, Division of State Planning of The State of Florida, Environmental Confederation of Southwest Florida, Sanibel-Captiva Conservation Foundation, Inc., Caloosa Bird Club, Iona-McGregor Federation of Civic and Residents Association, Organized Fishermen of Florida, Inc., Lee County Conservation Association, Inc., Florida Wildlife Federation, Inc., George Wilson, and City of Sanibel, Florida, Respondents.

No. II-419.

District Court of Appeal of Florida, First District.

Dec. 17, 1979.

Gary P. Sams of Hopping, Boyd, Green & Sams, William E. Williams and William H. Adams, III of Mahoney, Hadlow & Adams, Jacksonville, Howard S. Rhoads of Allen, Knudsen, Swartz, De Boest, Rhoads & Edwards, Fort Myers, for petitioner.

Robert L. Shevin, Atty. Gen., Martin S. Friedman, Asst. Atty. Gen., Tallahassee, David Gluckman, Crescent City, Fred P. Bosselman and Charles L. Siemon, Chicago, Ill., David E. Bruner, Marco Island, P. Kevin Davey of Douglass, Powell & Davey, Tallahassee, James T. Humphrey, Fort Myers, Neal D. Bowen, Sanibel, for respondents.

PER CURIAM.

Petitioner, Estuary Properties, Inc., (Estuary) petitions this court to review a final order of the Florida Land and Water Adjudicatory Commission (The Adjudicatory Commission) denying an appeal from a development order issued by the Board of County Commissioners of Lee County. ¹

Estuary applied to the Board of County Commissioners of Lee County for approval of a residential and commercial development of regional impact pursuant to Chapter 380, Florida Statutes. The development application involved 6,500 acres of land (largely wetlands) in a sensitive ecological environment. A major portion of the development consists of land known as the "Windsor Tract". Estuary is the assignee of Windsor.

In 1970, the Trustees of the Internal Improvement Fund of Florida, (Trustees) entered into a settlement agreement with Windsor which set the boundary line between the State and Windsor owned lands. The agreement provided that the Trustees would have no objections to Windsor, his successors or assigns, applying for and receiving a bulkhead line coincident with the boundary line under Chapter 253, Florida Statutes, a dredge and fill permit for a canal fifty feet wide just inside the bulkhead line under Chapter 253, and a dredge and fill permit for three or four navigational channels under Chapter 253 giving Windsor access to surrounding bays and bodies of water.

Estuary acquired lands to the North and West of the Windsor tract bringing the total acreage proposed for development to approximately 6,500 acres. About 2,800 acres in the coastal rim of the property is comprised of red mangroves. A natural berm or levee about six to eight inches higher than the surrounding land crosses the tract. Between that berm or levee and the salina (the line above which tides seldom rise) is a predominantly black mangrove forest (approximately 1,800 acres). The upland portion of the property which is above the salina consists of approximately 1,800 acres.

Estuary's development application proposed to deed back to the State the coastal areas seaward of the berm consisting of predominantly red mangrove forests; dig an interceptor waterway immediately landward of the berm running 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; and to construct, over a 25 year period, some 26,500 residential units to accommodate 73,500 people. To accomplish this, Estuary sought zoning permitting a density of 4.1 dwelling units per acre. Finally, and most importantly, the proposed development, including the interceptor waterway, required the use by Estuary of the 1,800 acres vegetated with black mangroves.

The development plan was submitted to the Southwest Florida Regional Planning Council (Council). ² The Council's report contains a detailed analysis of the proposed development's impact on the environment and natural resources, population and housing, public facilities, transportation, public services, and the economy. The central concept of the proposed development concerned After a series of public hearings, the Board of County Commissioners of Lee County denied the proposed rezoning and denied Estuary's application for development approval. The Board's development order is set forth below:

the use of the interceptor waterway, which along with a system of some 27 lakes, was designed to replace the functions of the destroyed black mangroves. However, the destruction of the black mangroves was clearly the most controversial part of the proposed development. The Council found that the design and performance of the interceptor waterway was based on a series of questionable assumptions which overlooked the complex mix of urban effluents that would be entering the waterways. Specifically, the Council found: "a. The SWFRPC staff and its consultants were not provided data necessary to determine the validity of claims concerning the scrubbing functions of the interceptor waterway. The proposed drainage concept is unproved because it has never been tested in actual usage nor has a pilot project of suitable scale been constructed, observed or monitored. The effectiveness of the proposed interceptor waterway in meeting water quality objectives has not been documented in an actual situation. * * * " The Council recommended that the application for development approval be denied.

" * * * The Board of County Commissioners of Lee County, pursuant to Section 380.06, after due consideration of the consistency of this development with the Local Land Development Regulations, the report from the Southwest Florida Regional Planning Agency, the report from the County's staff and members of the public body, takes the following action:

"Denies the application as submitted by Estuary Properties, Inc., due to the following reasons:

"1. This body adopts the findings and recommendations submitted by the Southwest Florida Regional Planning Council, pursuant to the requirements of Chapter 380, Florida Statutes, and said findings and recommendations are incorporated by reference and made a part of this Order.

"2. The environmental impact caused by this development is not sufficiently predictable to address the proposed future buildout of the Estuaries at this time.

"3. The site of the proposed development is largely characterized as wetlands and is within and adjacent to environmentally sensitive areas, being the Estero Bay Aquatic Preserve and San Carlos Bay.

"4. Extensive site alterations will be required for the development which will result in the destruction of large acreages of mangroves and other wetlands vegetation and cause the alteration of a long established ecosystem.

"5. The proposed development will impose very significant and possible adverse demands on the fresh water resources of Southwest Florida. The ability to meet the potable water demands on a long-term basis has not been sufficiently documented. The alternate plans as presented by the applicant provide no hydrological data which insures the capacity to meet the domestic needs generated by the proposed project.

"6. The drainage system as proposed will create a potential negative water quality impact on San Carlos Bay and the Estero Bay Aquatic Preserve. The proposed interceptor waterway has never been tested in actual usage and it has not been shown that it will not create a negative water quality impact on the waters of Estero Bay and San Carlos Bay.

"7. The large boat traffic generated by this proposed development will have a negative quality impact on San Carlos Bay and the Estero Bay Aquatic Preserve.

"8. The user characteristics assumed for the proposed project have not been substantiated by documented information, resulting in the possible underestimation of the many impacts which are dependent upon the user characteristics. Acceptable documentation and commitments to support applicant's user characteristics have not been provided.

"9. Based upon data received, the proposed site is in a flood-prone area and evacuation "10. The proposed development will have a negative impact on the emergency facilities of Lee County and upon the governmental facilities of Lee County.

of the people proposed for the project will place impossible demands upon an already impacted emergency evacuation route system. This potential congestion problem could prove critical to the health, welfare and safety of the area-wide residents until the programmed county and state roadway improvements are, in fact, implemented.

"11. The residential acres set aside under the proposed plan, with the proposed density allocation, concentrates too many residents within this sensitive coastal wetlands area.

"12. The proposed development will cause the degradation of the water of Estero Bay and San Carlos Bay which would adversely affect sport fishing in the bays with the loss to the tourist industry, commercial fishing and shell fishing industry, resulting in an adverse economic impact on Lee County and the region.

"13. The proposed development will have a major negative impact on the...