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Osprey Estates project appears to violate Florida code

STORY BY STEVEN M. THOMAS, (Week of March 29, 2012)

The Florida Department of Environmental Protection appears ready and willing to issue a permit for a development on the Indian River lagoon known as Osprey Estates that is in clear violation of Florida Administrative Code, according to public records.

State code provides that “no dock shall extend waterward of the mean or ordinary high water line more than 500 feet or 20 percent of the width of the water body at that particular location, whichever is less.”

But the site plan submitted with the permit application shows the longest Osprey Estates dock extends more than 500 feet into the lagoon and obstructs more than 40 percent of the waterway. 

Despite that apparently blatant violation, the DEP on Feb. 10 issued a notice of intent to grant a permit for the three-home, 15-acre development on the mainland shore about a mile north of the Barber Bridge.

According to records obtained by 32963, the environmental site assessment report the DEP relied on to approve the project also appears to be badly flawed. Dated August 30, 2008, it is nearly four years old and its survey only extends 400 feet into the lagoon, leaving 100 feet of the project area unexamined.

The age of the report is significant because it mainly surveys the type and amount of seagrass in the area and sea grass is a mobile plant that expands and shrinks its range on an annual basis depending on weather and water conditions.

On top of that, the report documents the presence of Johnson Seagrass, a federally protected species that when present, normally means an area is off-limits for development.

“The Johnson Seagrass will be of great interest to federal agencies,” says David Cox, an environmental consultant hired by a group opposed to the development.

State and federal statutes protect seagrass because it is a foundational component of lagoon ecology, providing food and shelter for many marine animals. Manatees rely on the lush underwater meadows for much of their diet and the grasses act as a nursery for fish. Females lay their eggs in the lagoon and hatchlings live, feed and hide from predators in the greenery until they are mature enough to venture into open waters.

Docks endanger seagrass beds by cutting off sunlight the plants need.

A study done by The Coastal and Estuarine Research Federation, a private, nonprofit, non-partisan organization founded in 1971, found seagrass density is reduced by more than 40 percent in shaded areas, and the proposed docks would shade more than 5,000 square feet.

“I came on board to do an ecological analysis of the site and lead the effort to stop the development,” says Cox, who played a similar role in preserving Bee Gum Point and other environmentally important tracts in Indian River County. “I do not get involved in things like this if they are frivolous. This project does not properly balance the individual rights of the landowner with the public interest.”

Steven Gieseler, an attorney representing project co-owner Oculina Bank, says the docks will not be as long as shown on the site plan. “Plans like this are a fluid thing,” he says. “The people opposing the project are not privy to the changing information we are privy to.

“Sometimes members of the public bring something to the DEP’s attention that they have overlooked. If they then come to us and say there is something that would make the project more amenable to getting final approval, we look at it and see if the client is willing to go along with the change.”

“That is not a credible scenario,” says Cox. “Those guys at Central District [of the DEP] didn’t accidently overlook the length of these docks. They know the regulations controlling docks inside and out without even looking them up.”

The public was informed of the DEP’s intent to permit Osprey Estates as shown on the site plans via a small-print newspaper announcement Feb. 22. That public notice gave details of a complex process by which anyone objecting to the project could file a petition for administrative review of the decision, but petitions had to be filed by March 7.

The short timeframe did not allow people just learning of the plan enough time to complete the highly-specific petition process so a group of John’s Island and Grand Harbor residents hired Cox and Orlando environmental attorney Marcy LaHart to submit a “Petitioners’ Motion for Enlargement of Time to Request Administrative Hearing.”

LaHart was confident the motion would prevail. “I would say it has a 100 percent chance of succeeding,” she said at the time. “It would be a blatant violation of due process for them to disregard it.”

As it turned out, the DEP rejected the motion on a technicality.

“Our motion was filed two days before the deadline but it was deemed not timely,” says Cox. “By statute and precedent it was a timely petition, but they rejected it.”

“They issued a very confusing order that says the request is denied because it isn’t timely but also gave us 15 days to file a petition for review of that decision. Someone over there has been smoking too much crack – and you can quote me on that.”

LaHart has since filed a motion for clarification of the confusing order and plans to submit another petition prior to the new April 5 deadline imposed by the DEP. “I am absolutely confident of prevailing,” she says.

Meanwhile, a parallel motion for enlargement of time filed by island resident Michael W. Casale was accepted by the Division of Administrative Hearings and he has hired a lawyer in Tallahassee who will present his case against the project this week.

“The area in question is a sensitive ecological site which ought to be conserved for the health of the Indian River Lagoon and thereby the residents and visitors of Vero Beach,” says Casale.

“I am concerned the agencies which exist to protect the lagoon may be succumbing to pressures and that we who are most affected by their decisions have not been adequately informed about this project nor its consequences,” says 23-year island resident Bonnie Veron.

The DEP did not respond by press time to questions submitted for this story so its explanation for why docks twice as long as allowed by code were on the verge of approval until stopped by concerned citizens is not known.

Also unknown is the nature or outcome of any ongoing DEP negotiations with Gieseler and Oculina Bank.

Gieseler would not go into detail about the discussions he says are taking place to modify the development, or say exactly how long the docks will be, although he did insist “they will comport with state code.”

George Kulczycki of G.K. Environmental, Inc. who authored the Osprey Estates site assessment, said he personally would be happy to talk about the details of the report but that Gieseler had asked him not to discuss anything related to the project.