Proposal to build apartments in a conservation area at Fiddler's Creek sparks concern, ire

Last year, John and Sue Erario retired to their dream home southeast of Naples.

When they saw their house in Royal Palm Golf Estates for the first time, they fell in love with it.

Most especially, they loved the scenic view from the backyard, which overlooks an expansive preserve they thought could never be developed.

Now, they're worried about losing their pristine views of wildlife and wetlands.

The developer of Fiddler's Creek, a community that includes the couple's gated community of single-family homes on oversized lots, wants to build hundreds of apartments on a slice of the 600-plus acres the couple believed would remain untouched by residential or commercial development in "perpetuity," or forever.

Conceptual plans for the apartments show a four-story complex (over parking), with multiple buildings, at a zoned height of 55 feet and an actual height of 65 feet, with access off what's now a narrow flood-prone road, which would have to be extended through the preserves to reach the new development.

More than 20% of the apartments would be set aside as affordable housing, to address a critical shortage in Collier County. That's one of the driving forces behind the contentious project, which would stand on its own, without a direct connection to Fiddlers' Creek.

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Proposal for apartments came as a surprise

To their surprise, nearby residents received a notice in the mail about a neighborhood meeting last summer about the proposal to put a 750-unit apartment complex on about 50 acres of the undeveloped land, west of Collier Boulevard. The informational meeting is required for applicants seeking rezonings and land use changes in the county.

At the meeting, the developer, Naples-based Gulf Bay Group of Cos., faced overwhelming opposition, with residents accusing it of broken promises and greed for trying to build on and profit off land it had agreed to put a protective easement on in "Section 29."

Attending via Zoom, Sue Erario expressed her frustration.

"We purchased because of what was behind of us. And told that this wouldn’t happen. So, to have this happen, it is a little devastating," she said.

Getting a little more personal, she said: "It is taking every reason why I’m there away from me. As well as my neighbors. And I don’t know if that matters. I don’t know if you think about that when planning. But ouch."

Her husband questioned how high-density housing could even be considered on the land, seemingly on a "whim."

Wayne Arnold, the project's planner with Q. Grady Minor & Associates, explained the developer had the right to ask for the change under county and state rules.

"This is the legal process for us to amend existing zoning in Collier County," he said. "This is the process. This project has been amended numerous times since its inception. It’s a large-scale project, they evolve, and things change. And so does the market."

He added that the land targeted for development had been previously cleared and used for farming, so it had already been altered, and that the developer had always intended to do something with it – last eyeing it for a golf course.

Further, Arnold emphasized the apartments would be "over a football field away" from the nearest single-family residences, and not in full view, with tall, lush landscaping softening its visual impact from afar.

The Erarios aren't just worried about losing their views, but about losing their peace and quiet, with the proposed expansion of Auto Ranch Road behind their home to provide cars access to the new development.

They see the apartments as not only undesirable, but incompatible. Other neighbors feel the same way.

The Erarios are part of a small, but active group, going under the name Protect the Preserve, that has raised money to fight the project through a GoFundMe campaign, part of which has been spent on an attorney to represent their interests.

"So many people say, 'What are you doing? You're not going to win'," Sue said. "They feel like we've already lost. That's not the way it should be."

While it may be an uphill battle, John said the group is going to "keep putting the pressure on" decision makers, in an attempt to defeat the apartments.

It may seem like a small matter to outsiders, but it "speaks to something bigger," a failure by government to track developers' commitments, he said.

Developer failed to record protective easements

After the neighborhood meeting last year, the Erarios discovered Gulf Bay never recorded protective easements on the preserve, as required by the U.S. Fish and Wildlife Service before construction started in the final sections of Fiddler's Creek, giving the couple more cause for concern.

Plans for those final sections – made up of the eastern part of Oyster Harbor and the entirety of Estancia – included up to 1,650 single-family and multifamily homes, a golf course and commercial uses, such as a grocery store, on 804 acres.

In 2015, the Army Corps determined development in those areas might harm Florida panthers and Florida bonneted bats, both classified as endangered species. The U.S. Fish and Wildlife Service found the construction would result in the loss, or "incidental taking," of nearly 719 acres of panther habitat.

To address the environmental concerns, Gulf Bay committed to set aside 614 acres of preserves in Fiddler's Creek, much of it in Section 29. To make up for the rest of the impacts on wildlife, the developer agreed to buy credits in a mitigation or conservation bank, a widely used tool to restore or enhance protected wetlands offsite, when it can't be done or isn't as environmentally beneficial on site.

Based on those commitments, the U.S. Army Corps of Engineers, which regulates activities on wetlands, issued a permit in October 2017, allowing the developer to build in new sections of Fiddler's Creek.

In an email, David Ruderman, a spokesman for the Army Corps, said the agency, however, later discovered the promised easements hadn't been recorded after receiving a public complaint and "opened an enforcement action," which it closed last November after the developer "came into compliance."

"There were no penalties assessed," he said. "The Corps generally does not assess penalties for administrative failures that are corrected."

Developer records protective covenants

Instead of easements, a Fiddler's Creek affiliate recorded three conservation covenants with the county clerk's office for the preserves in November, bringing the developer into compliance. One of those covenants, covering the site where the apartments are now proposed, states it may be "modified in the future to provide for additional housing," and released from protection, subject to approval from the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service.

If the covenant is released, the developer has proposed buying more credits from a conservation bank for the protection of panther habitat to make up for it.

The Fish and Wildlife Service and the Army Corps are both third parties to the conservation covenants, with enforcement rights.

"The Service would have concerns about loss of habitat in these areas particularly because all parties originally agreed the land would be conserved. Permanently conserving this land is in the best interest of the public and our trust resources," said Carli Segelson, a public affairs specialist for Fish and Wildlife.

Local environmentalists have expressed similar concerns.

Brad Cornell, a policy director for Audubon Western Everglades, said his group opposes the "proposed urban development," and urges the Army Corps of Engineers and Fish and Wildlife "to fully enforce their permits and regulatory rulings protecting Florida panthers and other imperiled species here."

He pointed out Section 29's proximity to other environmentally sensitive properties, including the 7,271-acre Collier-Seminole State Park, one of the largest mangrove swamps in the world, and the Rookery Bay Reserve.

Three petitions submitted for county approval

In addition to requiring the support of federal agencies, Gulf Bay would need a supermajority vote of approval from four out of five county commissioners on three related petitions.

Building the apartments will require changes to Collier County's growth management plan, the planned unit development, or developer agreement with the county, and the development order.

To obtain a development order, Fiddler's Creek had to go through what's known as a development of regional impact, or DRI, review process. That more extensive review process no longer exists, and changes to existing DRIs are now left up to local governments, with no involvement from regional planning councils anymore.

After the neighborhood meeting last June, the push behind the proposed apartments seemed to slow.

Following a third review in August 2022, county staff had outstanding questions and concerns, and sought corrections, clarifications and more information on the developer's petitions, finding them insufficient.

Gulf Bay didn't submit its answers until nearly a year later. While the developer addressed some of staff's comments, it disputed others, and asked to be "deemed sufficient," so it could move ahead with the required public hearings. It's still waiting for a reply.

The county required the developer to have another neighborhood meeting because more than a year had passed after the first one. At the second one, held Sept. 6, nearby residents once again took issue with the site and questioned why the apartments couldn't go somewhere else in Fiddler's Creek, or anywhere else in the county.

Once again, the meeting got tense and emotional.

"You should be ashamed of yourselves," one angry resident decried, after accusing Gulf Bay of not living up to its commitments to protect the land.

The developer's representatives explained available sites for such projects are limited, with so much of Fiddler's Creek and the county developed, and they reiterated the developer had the right to ask for the zoning change on its land, and that its going through the proper steps to do so.

To allow for the apartments, the developer has asked to increase the allowable density in Fiddler's Creek from 6,000 to 6,750 single-family and multifamily residences. In all, the master-planned community spans about 4,000 acres.

In an interview about the proposed apartments, land use attorney Rich Yovanovich, who represents Gulf Bay, said its founder and CEO Aubrey Ferrao started looking into ways to build more affordable, workforce housing a few years ago to address the critical need in the county, which continues to make headlines.

The developer has committed to set aside 11.3% of the units for households earning 80% or less of the county's area median income, and another 11.3% for households making 100% or less of that amount, as a public benefit.

The county's median income now stands at $100,700, for a family of four. The median represents the amount in the middle, with half making more and half making less.

While apartments aren't an allowed use in Section 29, residents and others who argue nothing could ever be built there are misinformed, Yovanovich said.

"Obviously, whoever told them that didn't know the land they were talking about," he said. "We don't know what was told to them."

In the planned unit development for Fiddler's Creek, parts of the land are designated for parks and recreational uses, which could include everything from a golf course to an equestrian center, and instead the developer wants to build apartments, with affordable housing that's sorely needed, Yovanovich said.

Under the proposal, he said, the "park parcel" would become the "housing parcel."

"We will have to work with the Corps of Engineers and the Water Management District to obtain permits to move forward with the construction of the apartment complex," he noted.

Originally, Gulf Bay hoped to donate Section 29 to the state, or county, so it held off on recording any easements to facilitate a land transfer, but neither one wanted it, Yovanovich said.

The developer had previously agreed to record an easement within 60 days of receiving notice from the state that it didn't want the property. That never happened because "none of the agencies" wanted to accept the easements, Yovanovich said, so the developer eventually ended up recording restricted covenants instead.

Promises to protect the land date back to the 1990s

In their research, the Erarios discovered that the developer's promises to protect Section 29 date back to the 1990s, when it received county approval to amend its planned unit development to add 1,385 acres to Fiddler's Creek for its final phases.

The additional land included Section 29.

At a public hearing before county commissioners in 1998, the developer's planning expert stated that parts of Section 19 and "all of Section 29" would be preserved, to avoid urban sprawl, and to provide "a buffer between urban development and the state-owned wetlands beyond."

The county's planning director pointed to the environmental significance of the privately held lands, stating that there would be "no dwelling units contemplated for that portion of the development."

Brad Cornell, with Audubon Western Everglades, said he attended county hearings on the expansion of Fiddler's Creek, and understood that Section 29 and other land would be "put in conservation preservation forever."

"Apparently, they changed their mind on that," he said.

Yovanovich did not represent the developer then.

Today, he said, the apartments wouldn't be considered urban sprawl, with all the development that's happened in this corner of the county since the 1990s – and what's anticipated to be built, through the conversion of more farmland to residential zoning by nearby landowners.

The county's Growth Management Plan contemplates more development in the area now, with a continued push to the east, and the county has new programs in place to address sprawl in more rural and remote parts east of Interstate 75, Yovanovich said.

"The current county commission is emphasizing the need to provide income-restricted housing," he said. "We started that focus before that, so we are furthering that focus."

As for the apartments themselves, with Gulf Bay involved they're sure to be of a high caliber, Yovanovich said, not something that will bring down property values, as feared by some neighbors.

"This is going to be a Class A project," he said. "And everybody is going to have the same finishes in their apartments. You are not going to be able to tell by walking into the apartments which one is income-restricted, and which one is not."

The developer hopes to go before the planning commission for a recommendation this fall, and to reach the county commission for a final decision later in the year.

If the apartments win approval, construction is expected to take a few years, following the issuance of permits.