Oculina’s plan to build on lagoon is back from the dead
Almost two years after an administrative law judge blocked Oculina Bank’s plan to build homes on the mainland shore of the lagoon north of Barber Bridge, the bank is trying to revive the much-criticized project in a modified form.
The good news for the bank is that the Florida Department of Environmental Protection (DEP), which was ready to approve the earlier project even though elements of it clearly violated DEP’s own regulations, is still on its side, prepared to wave heavy equipment into the wetlands despite the objections of distinguished lagoon scientists and concerned residents.
The bad news for the bank is that it will have to get approval from same judge who nixed the project before in order to move ahead.
Judge Bram D.E. Canter ruled in April 2013 that filling wetlands to build three large houses with long docks would damage the lagoon ecosystem. He also said the project was not demonstrably in the public interest as required by law since part of it would be built on sovereign submerged lands belonging to the citizens of Florida.
The bank claims its new plan addresses the judge’s objections but Pelican Island Audubon Society (PIAS) and Citizens for the Preservation of the Indian River Lagoon respectfully disagree.
The citizens group, made up of John’s Island and Grand Harbor residents, and PIAS were among the parties that forced the first administrative hearing and they have reemerged to file a request for another hearing, which has been granted, with the case assigned to Canter.
“We object to loss of habitat and critical fisheries contained in the Osprey Estates land,” citizens group leaders and John’s Island residents Bill and Carolyn Stutt wrote in an e-mail to Vero Beach 32963 last week.
“These acres are unique wetlands and should be made a part of the currently existing greenbelt which begins at the Barber Bridge and continues north to the southeast corner of the Grand Harbor environmental buffer – this parcel should not be developed. The Indian River Lagoon is in trouble and precious wetlands need to be preserved.”
Environmental Attorney Marcy LaHart represented the citizens group at the first hearing and is its lawyer this time as well. Her office issued a memorandum saying the bank’s new plan ignores most of the specific concerns voiced by Judge Cantor in his 2013 decision.
The new petition for administrative review raises questions about loss of seagrass beds, destruction of important game fish nurseries, harm to bird and aquatic life and hazards to navigation posed by the planned docks, which extend hundreds of feet out toward the Intracoastal Waterway in a narrow stretch of the lagoon that is also an aquatic preserve.
Oculina has been trying to entitle a subdivision in the midst of ecologically critical wetlands south of Grand Harbor since repossessing the 15.5-acre site from a failed developer in 2008.
In February 2012, the bank saw light at the end of the development tunnel when DEP published notice of its intent to grant a permit for three 6,000-square-foot houses with docks ranging in length from 355 feet to 540 feet. But the plan raised red flags for environmentalists and boaters.
Aside from the threat to wetlands and marine life, the length of the docks violated DEP’s own regulations by obstructing the waterway, and the Stutts filed a petition alleging inaccuracies in the agency’s assessment of project impacts and violations of state environmental protection statutes.
JI resident Gary Bewkes filed an additional petition asking the Florida Division of Administrative Hearings to assign a judge to review the development and stop 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.”
Over the next nine months Oculina and the DEP joined forces to fight a determined rear-guard action, bobbing and weaving legally as LaHart poked holes in their arguments justifying the development. More than 80 petitions, responses, revisions, motions and orders had been filed by the time the matter was finally aired in a two-day hearing in front of Judge Canter at Vero Beach City Hall in November 2012.
Both sides offered detailed arguments and expert testimony, the bank and DEP insisting the project would not harm the lagoon environment, LaHart and her clients presenting evidence the development would be destructive.
After long and careful consideration Canter handed down his ruling in April, recommending DEP “issue a Final Order that denies the Consolidated Environmental Resources Permit and Sovereignty Submerged Land Authorization to Oculina Bank.”
Even then, DEP was not ready to give up its fight for the bank’s subdivision. Operating in an alleged atmosphere of political intimidation created by a governor many view as radically anti-environmental, the agency filed a 14-page objection to the decision, alleging Canter improperly shifted the burden of proof, misunderstood numerous matters of fact and did not adhere to legal precedent in giving weight to statements and evidence provide by petitioners.
LaHart said at the time it is rare for an administrative law judge’s decisions to be overturned, and in August Secretary Herschel T. Vinyard rejected the banks and his own agency's objections to Canter’s decision and made the permit denial final.
That seemed to be the end of it – a victory for the Indian River Lagoon, an estuary of national significance that supports more than 4,000 species of plants and animals and adds tremendous economic and recreational value to Vero Beach, Indian River County and half of Florida’s east coast.
But then the bank pulled the stake out of its heart and lumbered back into action, supported by its ironic ally the Florida Department of Environmental Protection.
“Oculina Bank calls the project Osprey Estates. Yet the project will destroy mangrove wetlands and saltmarsh and thus harm the fish that osprey eat in an aquatic preserve and in an area designated as Outstanding Florida Waters,” says Richard Baker, University of Florida biology professor emeritus and president of Pelican Island Audubon Society.
“Mitigation of tidally influenced saltmarsh is impossible when there is too little remaining. Our seagrasses and fish are dying. Oculina Bank should set the example of improving the Lagoon, not destroying it.”
Oculina Bank President Jeffrey Maffett did not respond to a request for comment. A separate request to Steven Geoffrey, the attorney who represented Oculina at the 2012 administrative hearing, also went unanswered.