INDIAN RIVER COUNTY — A hearing to decide the fate of the proposed Osprey Estates development that was scheduled for April 21-23 has been postponed.
Oculina Bank, which wants to build three large houses with long docks in an aquatic preserve north of the Barber Bridge on the mainland shore of the lagoon, filed a motion for a continuance Wednesday, April 15, stating that its “chief environmental expert witness – and the author of the fish sampling survey that is central to this proceeding – suffered a sudden medical emergency that resulted in his being transported via ambulance to Martin Memorial Hospital in Stuart, Florida, where he remains admitted for an undetermined duration.
“Due to the paramount nature of the expert’s testimony and that of the fish study he conducted and authored, Oculina respectfully submits a full examination of the issues in this matter cannot currently be conducted without his presence, which is rendered impracticable due to his medical emergency.
“As such, Oculina respectfully requests an order continuing the hearing until such later date as can be determined and agreed upon by the parties and by the Administrative Law Judge.”
Judge Bram D.E. Canter, who is hearing the administrative law case, granted the continuance on Thursday, ordering Oculina and the parties that oppose the development to confer and send him in writing no later than April 30 several mutually agreeable dates for re-scheduling the final hearing.
April 14, 5:36 p.m.
INDIAN RIVER COUNTY — Environmentalists trying to stop development on the shore of the lagoon north of Barber Bridge got a win last week when Judge Bram D.E. Canter agreed to allow a public comment period during an upcoming administrative law hearing that will decide the project’s fate.
Oculina Bank, the respondent in the case, is trying to build new homes in a mangrove wetland ecologists say is an important fish nursery; it had tried to prevent public comment.
Oculina President Jeffery Moffat did not respond to an inquiry by Vero Beach 32963 asking why the bank did not want the public to have a chance to speak in court.
“Public comment could indeed help the petitioner’s efforts, if it is carefully conceived and targeted,” said Vero Beach ecologist David Cox, who opposes the project. “If members of the public are organized beforehand and coordinate their comments, they will likely be more persuasive.”
“I would hope the judge would take the public’s concerns into consideration when he makes his decision,” said attorney Marcy LaHart, who represents Citizens for the Preservation of the Indian River Lagoon, one of the groups trying to stop the development. She had asked the judge to schedule the public comment period in the evening, so more people would have an opportunity to attend the hearing, which will take place at Vero Beach City Hall, April 21-23. Instead, Canter scheduled public comment for 1 p.m. on April 22.
LaHart was pleased with the judge’s ruling despite the midday time slot. She said allowing public comment at administrative law hearing like the one upcoming is “not unprecedented, but it is not common, either.”
Shortly after ruling that members of the public concerned about the wellbeing of the lagoon have a right to be heard, Judge Canter handed the bank a win when he ruled in favor of something called a motion in limine, which restricts the scope of evidence LaHart and her expert witnesses can present.
In 2013, Canter ruled that Oculina’s development, termed Osprey Estates, violated DEP regulations and was not in the public interest. The bank has since modified its proposal and the motion in limine means that the upcoming hearing will deal only with the new elements of the project.
“On the face of it, the motion in limine may appear to undermine the petitioner’s case, but this is not necessarily so since there are many ways a seasoned trial attorney like Marcy can work around such limitations,” said Cox.
Citizens for the Preservation of the Indian River Lagoon is made up of 13 families who live in Grand Harbor, next to where Osprey Estates would be built, and across the lagoon in John’s Island. Pelican Island Audubon Society has joined with the group to oppose the development.
In a statement last week, the citizens group stated: “Oculina Bank/Osprey Estates and the DEP (Florida Department of Environmental Protection) have been attempting to push through permits for development on 15+ acres bordering the south side of Gifford Dock Road and the Indian River Lagoon just south of Grand Harbor. The permits would allow the filling of 3 acres of wetlands and the construction of three single family homes with private docks protruding hundreds of feet into the Lagoon toward the Intracoastal Waterway.
“The overall acreage involved contains precious mangrove habitat and salt marsh which are nursery habitat for snook and tarpon. The docks will be constructed through mangroves and over oyster beds and endangered seagrasses, in water that will frequently be too shallow to prevent prop dredging. All are causes for concern in light of the fact that the health of the lagoon has been in a downward spiral.
“The DEP should be protecting our lagoon but that is not the case. It appears that the Florida Department of Environmental Protection has misconstrued its true mission.”
Oculina has been trying to entitle a subdivision on the lagoon 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 John’s Island residents Bill and Carolyn Stutt organized Citizens for the Preservation of the Indian River Lagoon and 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.
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.” He found that filling wetlands to build three large house 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.
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,” said Dr. 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.”
Citizens for the Preservation of the Indian River Lagoon suggested in its statement that people who want to comment keep comments brief and sharply “focused on the importance of mangrove wetlands, the importance of a healthy Indian River Lagoon to you or your community, and the unique nature of the site. You will be sworn in before testifying, and the attorneys for the Department of Environmental Protection and Oculina Bank are allowed to ask you questions regarding your comments . . . Please note that written comments may also be submitted into the record in lieu of speaking, if you wish.”
