Lee County Rezoning Process Designed to Exclude the Public

Lee County Commissioners are poised to approve a controversial new development for North Fort Myers’ Bayshore community allowing 201 homes on 216 acres, over the objections of residents of this rural neighborhood. This development runs counter to the community’s planning goals and contrary to the county’s Lee Plan itself… continuing the Board’s reputation for ignoring the will of local communities creating plans that reflect their needs and desires.

You may not be allowed to speak at Wednesday’s meeting of the Board of County Commissioners, but you can be seen. Wear a red shirt to the 9:30 a.m. meeting regarding the LeeTana development in North Fort Myers to show opposition both to the problematic staff recommendation, as well as the restrictions on public input on the process.

Wednesday, October 2, 2019
9:30 a.m.
Old Lee County Courthouse
2120 Main St., Fort Myers

Background

The Leetana RPD (Residential Planned Development) is yet another example of the highly skewed county permitting process designed to help developers place suburban style developments in rural areas despite widespread opposition from the residents.  The development would place 201 homes on 216 acres (there’s 15 acres of wetlands), with most lots being under one half acre and the rest of the property being taken up by roadways, lakes, and buffers.  The surrounding properties are primarily 5 acre parcels.  The final hearing is scheduled for Wednesday, October 2, 9:30 AM, in the Commission meeting room.

The rezoning process is designed to exclude the public.  It is illegal for residents to communicate with commissioners about the proposed project except for 3 minutes per person allowed at the final commission hearing.  At that hearing, only those who spoke at the HEX (Hearing Examiner) meeting are allowed to speak.  So if you’re unable to attend the HEX meeting you can never make your opinion known to commissioners.  On the day of the HEX meeting you have no way of knowing what time you will be allowed to speak, so you have to be ready to spend the day.  Occasionally HEX meetings take more than 1 day so you don’t even know what day you can speak.  On the day of the Leetana HEX meeting some people had to leave to go to work and did not get the opportunity to speak.

During the permitting process residents can submit written statements to county staff, and at the HEX meeting written statements can be submitted.  For the Leetana development CCBC (Concerned Citizens of Bayshore Community, Inc.) and a number of residents submitted comments to staff by email.  Written comments were also submitted at the HEX meeting.  We are told by staff that these statements are included in the record, but they are not included in the meeting packets sent to commissioners.

In the HEX report for the Leetana RPD the public comments were summarized as follows.

“Several members of the public participated in the hearing. Public concerns centered on flooding, traffic and desire to maintain the rural ambiance of Leetana and Rich Roads.”

That’s it. For all of the comments and issues raised by the public participants who made the time to come and speak, and all of the written comments submitted.  Those two sentences are the entirety of public comment being forwarded to the Commissioners in the meeting packet.

So what’s wrong with the Leetana RPD?

1.  The HEX report claims consistency with policy 5.1.2 of the Lee Plan which states:

“Prohibit residential development where physical constraints or hazards exist, or require the density and design to be adjusted accordingly. Such constraints or hazards include but are not limited to flood, storm, or hurricane hazards; unstable soil or geologic conditions; environmental limitations; aircraft noise; or other characteristics that may endanger the residential community.”

Yet most of Bayshore lies in a flood plain, as shown on Lee Plan map 9, and we know historically that flooding hazards exist through most of the area.  Policy 5.1.2 requires that residential development either be prohibited, or the density and design be adjusted where flooding hazards exist.  County Staff and the HEX are recommending that the maximum density be allowed, despite being inconsistent with the Lee Plan.

Over 100 sq. miles of land drains, largely via sheet flow, from Cecil Webb, through southern Charlotte County, and through Bayshore to the river.  So, considering that the development lies in a flood plain, the development should not be permitted anywhere near the maximum density. If Policy 5.1.2 does not apply here, when would it apply?

We never received an answer from Staff, and the HEX report just lists the applicable Lee Plan policies by number and says the development is consistent with the Lee Plan, without explaining this inconsistency.  We are not allowed to communicate with the Hearing Examiner.

2.  The HEX report says that, as a planned development, the county can require advanced septic tank systems which pollute less and are therefore a plus.  Of course the county could approve the planned development at a much lower density and still have advanced septic systems.  And if advanced septic systems are so important, why don’t they require that all new construction using septic tanks have advanced systems?

3.  The proposed development is inconsistent with Goal 59 of the Lee Plan.

“GOAL 59: PROTECTION OF LIFE AND PROPERTY. To reduce the hazards to life, health, and property created by flooding due to rainfall in a manner consistent with the community’s criteria for the preservation of environmental values and the conservation of natural resources.”

The Staff Report states that: “The applicant will construct and maintain a conveyance system through or around the subject property to maintain the historic north-to-south flow of surface water…”  Historically in Bayshore it has always been diverted around, and not through, the property.  The applicant’s plan allows for a berm to be constructed along the north side of the property and a conveyance will supposedly carry the water around the property.  The problem is, in the pre-development condition, when there’s flooding it overflows the current ditch and sheet flows across the property.  So diverting the flood waters around the property will make flooding worse on the neighboring properties.  Flood water, by definition, will not stay in any conveyance made.

From page 7 of the Hearing Examiner’s report:

“The proposed water management system will accommodate offsite flows and also provide water quality treatment that does not exist today.” and ” The proposed site design alleviates area drainage issues by accommodating existing flows, clears the blocked culvert under Leetana Road and provides for additional water storage during storm events. These design features and conditions of approval will protect surrounding property owners from adverse impacts from the project.”

We know that diverting the sheet flow around the property will increase flooding resulting from heavy rain events and wetter than average summers.  What they don’t want people to know is that they design for a 25 year, 3 day, rain event based on models.  We know that the models are often wrong, and even if right, a rain event greater than the design will increase flooding on surrounding properties. When pressed, I’ve had Lee County DNR (Department of Natural Resources) staff admit that, but they say we cannot design for every event.  The heavier rain events are not that uncommon, so in summary, the system is designed to fail.

We know that flooding over existing septic systems can cause health hazards. Flooding can also block access for residents, emergency vehicles, mail carriers, and garbage pickup, impacting residents health safety and welfare. In addition, water diverted around the subject property as proposed is inconsistent with Objective 59.1 for “the protection of present and future uses of real property from stormwater flooding.”  This is the same problem with the nearby Brightwater development (formerly Stoneybrook North) now under construction, berming off 741 acres of land and diverting water onto other properties.

4.  The Staff Report discusses monitoring of the “surface water quality and groundwater quality and quantity and to provide for contingencies to address any adverse impacts on surface water quality and groundwater quality and quantity resulting from the proposed development.”

What are the contingencies? When the 200 wells drawing from the aquifer within this limited area cause adverse impacts to water quality (such as salt water intrusion) and quantity (such as wells going dry) how will this be remedied? This is another unanswered concern of residents.

5.  The Goal for the Bayshore Plan states:

“Goal 18: Bayshore Community. To protect the existing rural residential, agricultural and equestrian-oriented character of the community by maintaining low residential densities and minimal commercial activities, while excluding incompatible uses that are destructive to the character of this rural residential environment.”

The development as planned is not low density and is therefore destructive to the character of the rural residential environment, making the development inconsistent with the Lee Plan. In addition the development is not consistent with the surrounding development pattern of primarily 5 acre parcels.

In the River Hall case in east Lee County, where the land use was also Rural, the BOCC declared that clustered development at 1 unit per acre is not rural in character. Therefore, the Leetana RPD is not rural in character making the development “destructive to the character of the rural residential environment.” which means it should be excluded as stated in the Bayshore Plan Goal.

Residents are also very concerned that the significant increase in traffic generated by the development will be destructive to the character of the rural residential environment. The traffic analysis shows a future level of service F for Bayshore Road from Slater Road to Hart Road.  The Brightwater development will be using the same access on Rich Road and Pritchett Parkway with up to an additional 1525 homes.

6.  The applicant’s submission for school concurrency shows that the development will increase the deficit for middle and high schools within the CSA (Concurrency Service Area).  However, the school system says that there are sufficient seats available to serve the need within the contiguous CSA.  It’s unclear whether this takes into account the nearby Brightwater development scheduled to build up to 1525 homes.

7.  According to an article in the News Press (9/18/19) the HEX described the proposed development as “a very suburban design plunked down in a very rural area.” when she heard testimony last November.  Now, after all these months, the News Press quotes her as saying “the project will not be destructive to the Bayshore Community.”  The News Press also reports that the owner of the property is SWK LLC, and they’ve already listed the property for sale. So this whole process is all about the money, in order to increase the land value for sale, without regard to the welfare of the community.  The proposed project is inconsistent with the Lee Plan, and Lee County should not be enabling profiteering at the expense of the quality of life of the residents.

The residents’ only remedy in these cases is to challenge the BOCC’s decision. This can cost 10’s of thousands of dollars with no guarantee of the outcome.  The developers have deep pockets and in both the Stoneybrook North case in Bayshore, and the River Hall case in Fort Myers Shores, the communities ran out of money to see the cases through to the end.  Now that Governor DeSantis has signed HB 7103 into law, residents who challenge a development order and lose will be forced to pay the legal fees of the winner.

The Hearing Examiner states that the Lee Plan allows for the maximum density.  Yet there is no requirement in the Lee Plan that the maximum density be permitted.  In consideration of policy 5.1.2,  goal 18, and goal 59, the density needs to be greatly reduced.

Lee County is currently in the process of rewriting the Bayshore Community Plan.  The County has already removed some of the most important protections from the original Bayshore Plan.  The current draft does not reflect input taken from residents at a county “visioning meeting” and an “open house meeting” supposedly to hear comment from residents.  The word “rural” does not even appear anywhere in the plan. With the help of local businesses CCBC  has collected over 230 signatures from residents on a petition opposing the Staff written Bayshore Plan and LDC (Land Development Code).  New leadership is needed on the County Commission.  Only Commissioner Mann has been supportive of our community and the community planning process.

Steve Brodkin
Resident Organizer
Vice President CCBC


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