INDIAN RIVER COUNTY — A five-year effort to build a controversial subdivision on the mainland shore of the Indian River Lagoon a mile north of the Barber Bridge ended not with a bang but a whimper on Sept. 23.
That date was Oculina Bank’s last opportunity to appeal a Florida Department of Environmental Protection decree dated a month before that denied permits for the Osprey Estates project.
The expiration of the deadline was a sweet victory for Vero Beach ecologist David Cox, Ph.D. and islanders E. Garrett Bewkes and Bill and Carolyn Stutt, who led efforts to stop a development they believed would damage the lagoon environment.
“We’re elated!” the Stutts wrote last week in a joint e-mail to Vero Beach 32963 sent from their summer home in Maryland. “It’s refreshing to know that effective redress to bureaucratic environmental misjudgment does exist, and that a small group of determined citizens can prevail. What a wonderful victory for preservation of our lagoon.”
Oculina had been trying to entitle a subdivision in the midst of ecologically critical wetlands south of Grand Harbor since repossessing the 16-acre site from a failed developer in 2008.
In February 2012, the bank saw light at the end of the development tunnel when FDEP 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 FDEP’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.
Bewkes filed an additional petition asking the Florida Division of Administrative Hearings to assign a judge to review the development and stop FDEP 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 FDEP fought a determined rear-guard action, bobbing and weaving legally as the Stutt’s attorney, Marcy 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 Administrative Law Judge Bram D. E. Canter at Vero Beach City Hall last November.
Both sides offered detailed arguments and expert testimony, the bank and FDEP 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 FDEP “issue a Final Order that denies the Consolidated Environmental Resources Permit and Sovereignty Submerged Land Authorization to Oculina Bank.”
But FDEP, operating in an alleged atmosphere of political intimidation created by an anti-environmental governor, was not ready to give up its fight for the bank’s subdivision. In May, it filed a 14-page objection to the decision, alleging Canter improperly shifted the burden of proof, misunderstood numerous matter of fact and did not adhere to legal precedent in giving weight to statements and evidence provide by petitioners.
LaHart disagreed. “Judge Canter’s decision was very well-reasoned based on the evidence in record. FDEP would be foolhardy to ignore that evidence.”
LaHart said it is rare for administrative law judge’s decisions to be overturned, but the final decision was up to FDEP Secretary Herschel T. Vinyard, a Scott appointee who has a reputation for favoring industry and developers over the environment, so the outcome was not assured.
On Aug. 21, which was the deadline for his decision, Vineyard finally disallowed all of the bank’s and his own agency’s objections to Canter’s decision and made the permit denial final.
At that point, the bank’s only remaining recourse was to file an appeal in the District Court of Appeals. The one-month deadline for that last-gasp effort passed on Sept. 23 with no action by the bank.
“Marcy LaHart and the experts she and David Cox assembled deserve great credit on a job well done,” the Stutts wrote. “Hopefully, [this decision] will also have value as an effective precedent for use against other efforts to develop similar property.”
