Foes plead with county to reject housing plan that would remove 36 acres of mangroves

Opponents of a plan to remove mangroves on the shore of the Caloosahatchee River near Punta Rassa and develop Eden Oak, a 55-home community on 306 acres,  finished three days of testimony spaced over three months before a county hearing examiner Friday.

Eden Oak was proposed in 2011 but has been scaled down. Hearings on requested zoning changes continue Jan. 7 when the developer makes a rebuttal to opposition raised by county staff members and the public.

The project is proposed on Shell Point, the name given by the U.S. Geological Survey to a cape that juts into into the river off McGregor Boulevard near the Sanibel Causeway. 

The nearby Shell Point retirement community is not involved in the project. The developer is Eden Oak Shell Point LLC, owned by an Ontario home builder.

Lee County's planning staff has urged Chef Hearing Examiner Donna Marie Collins to recommend that the Board of County Commissioners, which has the final local say on the request, deny the petition. 

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The proposed project would remove 36 acres of mangroves and saltmarsh wetlands. Some residents of Shell Point retirement communities said they feared their quality of life would suffer if the mangroves, which help filter water and reduce the impact of storm surge, are removed. 

Resident Michael Armstrong, who lived first on Sanibel and now at Shell Point, said he was attracted by "the natural environment and the local sentiment which treated that environment as a positive to be preserved and defended."

Armstrong said he has built two homes of his own on the Southwest Florida waterfront, living first in Sanibel and for the past few years in one of the Shell Point communities.

"Restrictions and requirements prevented me from doing some things that I otherwise would have done and required me to do things that I would rather not have done," he said. "There were sound reasons behind the rules as they applied to both my land and the community and its environment."

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The hearings were marked by testimony from a line of retirees from the nearby upscale retirement communities who testified, many reflecting fondness for kayaking frequently among the mangroves. 

Julianne Thomas, of the Conservancy of Southwest Florida, said the proposal was better suited to the building standards of the 1970s, before the adoption of stricter rules for protection of wetlands and the environment.

"We need to make better decisions and make better recommendations," Thomas said. "If we consider all the evidence moving forward ... don't say, 'Just because we were doing this 50 years ago, It doesn't mean we can do it today.'"

James Evans, director of natural resources for the city of Sanibel, picked up on the theme.

"Just became some of the wetlands on the site are currently in an altered site and considered by the applicant as low or moderate quality wetlands it does not mean that if the quality of the (water) was restored that they could not be restored to high quality wetlands," Evans said. "I question how the applicant can argue that by developing the site that it will improve water quality in the area."

The Sanibel-Captiva Conservation Foundation presented several experts to testify about technical details of the project. Conservation planning director Rae Ann Wessel was the final witness, delivering what amounted to a 45-minute summation of the argument against approving Eden Oak.

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The group's staff had argued during the hearings that removing the mangroves to build homes would put people living nearby at risk, especially during hurricane and other strong storms.

"This project is contrary to at least 127 goals, objectives and policies and is contrary to the public interest because it will place additional people in the designated coastal high hazard zone, the flood zone, will impact traffic on a sole evacuation route, will eliminate wetlands that provide critical public protections to local residents," Wessel said.

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Wessel also responded to the threat that the developer would file suit under the state's Bert J. Harris Jr. Private Property Rights Protection Act, if denied. That law provides protection against land-use petition decisions that "inordinately burden, restrict, or limit private property rights." Lawsuits brought under the law can bring substantial monetary damages or overturn government land-use decisions.

"We are not talking about taking away development rights for the property, there is not a taking here," Wessel said. "This is a question of established rules. It's the purchaser's responsibility to perform due diligence, to know what is possible, and if they decide to take a chance and gamble, they can come before a forum like this."

At the suggestion of Commissioner Brian Hamman, Lee County looked into buying the property through its Conservation 20/20 program but the parties were unable to agree on a price.