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Hearing to decide fate of Osprey Estates postponed

STORY BY STEVEN M. THOMAS, (Week of September 13, 2012)

The administrative hearing that will decide the fate of the controversial Osprey Estates project was continued until Nov. 27 after property co-owner Oculina Bank made a last-minute change to its environmental mitigation plan.

The hearing, which had been set for Sept. 5 to 7, had been expected to determine whether the development, including three 6,000-square-foot houses with long docks protruding into the Indian River lagoon, could be built adjacent to an aquatic preserve a mile north of the Barber Bridge.

Five days before the hearing, Oculina Bank Executive Vice President Chris Russell signed an agreement to provide $25,000 for mangrove restoration to make up for environmental destruction at the project site, including the loss of 1.8 acres of wetland.

Attorney Marcy LaHart, who represents a group of Johns Island and Grand Harbor residents opposed to the project, says she “heard about the change to Oculina’s plan inadvertently,” not through any official notification from the bank or the Florida Department of Environmental Protection.

LaHart immediately filed for a continuance so she, her clients and their environmental consultants can study the latest wrinkle in a plan that has been in constant flux since last winter when DEP first issued a letter announcing its intention to permit the project.

The latest change to the permit application appears to come in response to depositions in early August by scientists critical of the project’s environmental impacts.

“They would not have changed the permit application if they had felt good about the depositions,” says LaHart. “My expert witnesses gave some very compelling testimony about why the project doesn’t comply with rule and statute. That is why they went back to the drawing board to come up with new mitigation plan.”

Oculina is required to show the project benefits the public in some substantial way because it would be built in an aquatic preserve. The bank and its consultants and attorneys originally said the public interest requirement was met because they were providing access to the aquatic preserve on the Old Dock Road on the north side of 15-acre development.

Vero Beach environmental consultant David Cox, who gave a two-hour deposition explaining why Osprey Estates violates environmental rules and regulations, says the claim of providing or increasing access is faulty.

“We produced a mass of evidence indicating they don’t have clear title to the roadway,” he says. “We have a state highway map from 1936 showing the road designated as state highway 506, which tends to show government ownership. We also have county records proving the county has maintained the road for decades.

“Under state statute, if the county has maintained the right-of-way for a certain number of years without anyone registering an objection, the county automatically owns it by inverse possession.”

Records show people have used the road for 100 years as a route to the shore of the lagoon so, even if the bank could prove it owns the right-of-way, it would not be increasing access by permitting the continued use of the road by boaters, fishermen and nature lovers.

“They were desperate after depositions,” Cox says. “We showed the Old Dock Road has been continuously maintained and used by the public so there is no new access or public benefit. They realized that claim wasn’t going to fly and threw this new mitigation plan together as fast as they could.”

At press time, neither Oculina or the DEP responded to inquiries about the process for notifying opposing council of changed plans, so it is unclear if the bank intended to spring the new mitigation proposal on LaHart as a surprise at the hearing or if it failed to inform her in a timely way because the change came so late in the process.

“We didn’t find out about the change until Sept. 2,” Cox said. That didn’t leave enough time to visit the site Oculina proposes to improve or otherwise investigate the validity of the mitigation.

The map the DEP sent to Cox and this publication showing where mitigation will take place is too dark and blurry to read, so it does not shed any light.

The hearing is now set for Nov. 27-29. There may be more depositions related to the new mitigation plan between now and then.

Oculina has been trying since 2009 to get the shoreline property approved for development. After several failed attempts, the bank seemed headed for success Feb. 10 when the DEP announced its intent to issue a permit.

But the plan raised red flags for environmentalists and boaters and on March 28 Michael Casale, a systems designer with Clemens Bruns Schaub Architect & Associates P.A., filed a 12- page petition for an administrative hearing to challenge the project on ecological grounds.

His petition lists 41 objections, including the likelihood of harmful impacts to fish, birds and other wildlife, including manatees, degradation of water quality to substandard levels and loss of protected sea grass beds.

On April 4, Carolyn Stutt, trustee of the Mangrove Garden Foundation, and a group of John’s Island and Grand Harbor residents hired LaHart and filed a similar petition alleging inaccuracies in the DEP’s assessment of project impacts and violations of state environmental protection statutes.

Shortly afterward, Gem Island resident E. Garrett Bewkes filed a third petition asking the Florida Division of Administrative Hearings to assign a judge to review the development and stop the DEP from permitting construction he said would cause “the destruction of sea grass, mangrove and marsh areas [that] will harm other plant and animal species and [cause] the overall marine ecology of the area to be adversely impacted.”

All three petitions were accepted by the Division of Administrative Hearings as being reasonable and worthy of a hearing and the case was assigned to a judge for resolution.

Since then, Oculina made a number of changes to the plan and the hearing has been delayed twice.

“We are expecting the case to take at least six months to be resolved,” said Florida Department of Environmental Protection spokesman Patrick Gillespie when the case was first scheduled for a hearing. “But it could take years. We won’t give them a permit until the judge makes a decision.”

Project opponents say they will fight as long and hard as they have to stop the project.
“We are not going to set a limit on how much we will spend to defeat this,” says Stutt. “There are 22 families in our group and we are prepared to see this through to a successful conclusion.”