Estero Development Report

Volume 9, Number 6, Issued January 2010
Edited by the Estero Council of Community Leaders (ECCL)

This Report is available on the Estero Community website at: hhttp://esterofl.org/eccl/EDR/

January Opportunities for Citizen Participation
In Protecting Estero's Quality of Life

Index

Estero Community Website

The community groups sponsoring the site are:

Estero Community Planning Panel (ECPP)

Estero Civic Association (ECA)

Estero Design Review Committee (EDRC)

Estero Council of Community Leaders (ECCL)

Lee County Board (BOCC) Awaits the Report of the State’s Review of the County’s DR/GR Comprehensive Plan Amendment

On October 28th the BOCC voted to transmit the proposed DR/GR Comp Plan Amendments to the Department of Community Affairs (DCA) in Tallahassee for their review. The amendment package approved by the Board contains only a few changes of the recommendations of Lee County staff which the ECCL and our coalition of civic and environmental groups strongly support.

Since the Amendment was transmitted County staff has traveled to Tallahassee to discuss it with DCA staff in order to eliminate any confusion about what was intended. In addition ECCL, The Conservancy of Southwest Florida and a coalition of community and environmental groups have sent a lengthy letter to DCA encouraging them to approve the plan with several significant changes. The letter can be reviewed at the following website http://esterofl.org/new/DRGR%20Joint%20Position%20Statement%20for%20BCC%20Transmittal%209-17-09%20Full%20Version.pdf            

DCA’s analysis and recommendations are expected in mid-January at which time County staff and the BOCC will have an opportunity to respond to them prior to final Board action on the Comprehensive Plan changes, expected in February.

The remaining timeline for implementation of these Comp Plan changes are as follows:

• Affected parties (presumably land owners and rock mining interests) will have 60 days after adoption to challenge the changes through a formal administrative hearing process.

• Depending on the initial success of the contemplated Transfer of Development Rights (TDR) program, there is likely to be legal challenges by some large landowners under the Bert Harris Private Property Rights Act.

Background

The Future Limerock Mining overlay included in the amendment was the most controversial and important provision, and fortunately this map, that concentrates mining in the Alico Road industrial corridor, was improved intact. As approved the Future Limerock Mining Overlay does not include any of the land in the sites of the eight pending Corkscrew Road limerock mine rezoning applications. Thus, if the State does not seek to change the Mining Overlay and the courts uphold the plan change, none of these property owners will be able to apply to mine their land until 2030 or until the Mining Overlay is amended by the County.

The plan also contains a number of provisions for conserving and/or restoring many of these lands so that they can play a major role in restoring the area’s flowways, recharging the aquifers that supply our water, preventing flooding along our rivers and streams and improving the water quality in these streams and Estero Bay.

This unanimous vote brings us one step closer to a master plan for the DR/GR which provides a balance between conflicting land uses in this rural area – providing adequate space and separation for rock mining, rural residential, agriculture, habitat and water conservation uses.

On September 24th the Lee County Board of County Commissioners heard a presentation by staff followed by public testimony concerning major proposed changes in the Comprehensive Plan for the 83,000 acre Density Reduction/Groundwater Resource (DR/GR) area just east of I-75 in Estero. Over a dozen representatives of Estero civic and community associations and region-wide environmental and growth management groups testified in support of the staff recommendations. A copy of this coalition’s joint statement may be viewed at http://esterofl.org/new/DRGR%20Joint%20Position%20Statement%20for%20BCC%20Transmittal%209-17-09%20Full%20Version.pdf .

On May 20th Lee County released the “Proposed Lee Plan Amendments for Southeast Lee County…Planning for the Density Reduction/ Groundwater Resource Area (DR/GR)” and posted it on their website at http://www3.leegov.com/dcd/CommunityPlans/SELC_DRGR/CPA2008-06/Proposed-Lee-Plan-Amendments-for-Southeast-Lee-County_May2009.pdf . This 72 page document details Dover Kohl & Partners, the County DR/GR planning consultants, recommendations for updating the County’s Comprehensive Plan for the DR/GR. This extensive document, if approved by the BOCC and the Florida Department of Community Affairs (DCA), would provide the legal framework for concentrating mining in the Alico Road industrial corridor; DR/GR locations where residential development should be clustered; locations where agriculture should be encouraged and where and how the natural resources and ecology of the DR/GR should be preserved. Since then there have been numerous reports and staff analyses that have provided further in-depth support for this new plan for the DR/GR area. They can be found at the following website… http://www3.leegov.com/dcd/ComprehensivePlanning/SeLeeCounty.htm

Additional DR/GR Protection Steps

There are several parts of the DR/GR plan that need to be addressed by the BOCC adopting amendments to the Lee County Land Development Code. These will include the County Board adopting a Transfer of Development Rights (TDR) program that will authorize the transfer of development rights on major DR/GR properties (“sending areas”) to other parts of the County, called “receiving areas”. The sellers of those rights would be able to continue to farm, conserve, rehabilitate or sell those lands while being compensated for the development rights, mainly residential units.

We would not be where we are in this effort without the help of some key civic and conservation groups including the Estero Council of Community Leaders, the Conservancy of SW Florida, the National and Florida Wildlife Federations, the Corkscrew Rural Community, Audubon of Florida, the Brooks Concerned Citizens and the Responsible Growth Management Coalition. You can be assured that the ECCL and its cooperating organizations will continue to remain involved in this process because these decisions will greatly affect the future quality of life in Estero and all of Lee County.

South Lee County Hospital Committee Update

During December the Committee continued to develop community support for a 24/7 Free-standing Emergency Department in south Lee County as soon as possible. On December 15th the Board of County Commissioners voted unanimously to endorse the effort. As present 40 Bonita and Estero organizations have voted to support the Committee’s 24/7 Free-standing ER goal. In addition to the County, the City of Bonita Springs, the ECCL, the Bonita Springs Fire District, the Estero Fire District and the Bonita Springs Chamber of Commerce have added their names to the list.

In addition the Committee continues its research on the operation and effectiveness of 24/7 Free-standing ER’s. On December 7th they met with a representative of a physicians group that manages an ER under contract with a Hospital, a person with many years of experience with emergency transport in Lee and Collier counties and the Chiefs of the Bonita and Estero Fire districts to discuss their emergency operations and how they would be impacted by a 24/7 Free-standing ER in the community.

On December 10th several Committee members met with Suzanne Bradach, Interim Executive Director of the Bonita Community Health Center (BCHC), to discuss our interest in having that facility modified to add a 24/7 Free-standing ER and to plan for our meeting with BCHC Board on January 29, 2010. Lee Memorial and NCH healthcare systems are preparing a position paper on their plans for a 24/7 Free-standing ER in the BCHC for use at this meeting. We asked for copies of the report prior to the meeting in order to increase its effectiveness.

Committee History and Background

Early in October the Hospital Committee received a response from the Bonita Community Health Center (BCHC) inviting the leaders of the Committee to meet with the BCHC Board as had been requested by the Committee (see below). This discussion is now scheduled for the next BCHC Board meeting in late January 2010. 

In the meantime the South Lee County Hospital Committee, which consist of about 40 volunteers… many with strong health care backgrounds, has begun to plan and implement a community awareness and support program to demonstrate its unwavering  commitment to obtaining a 24/7 Freestanding ER for the area as soon as possible. Anyone who would like to participate, recruit other local organizations or make suggestions to the committee may do so by calling or emailing Co-chairman Don Eslick at 273-9493 or doneslick@comcast.net .

Earlier this year the prospects for a 24/7 Free-standing Emergency Department in the Bonita Community Health Center (BCHC) looked very bright (see “Details” below). We were told that throughout the summer Lee Memorial and NCH, the co-owners of this facility, would discuss how this commitment could be implemented while retaining the existing shared ownership arrangement.

Unfortunately in late August the Hospital Committee learned that Lee Memorial and NCH had decided that their first priority had to be to work on making BCHC profitable and that the Emergency facility had to be placed on the “back burner”. Upon learning of this decision the leaders of the Hospital Committee decided to send a letter to the Chairmen of the two systems seeking a meeting with the BCHC Board to learn first hand what the intentions of the Board are regarding the south Lee County community being served by a 24/7 Freestanding ER in the BCHC.

That September 24th letter states in part the following:

“We understand that NCH and Lee Memorial have decided to continue your joint ownership and operation of the Bonita Community Health Center and that the inclusion of a Freestanding Emergency Department as proposed by Lee Memorial has been indefinitely delayed. As you must appreciate we are exceptionally disappointed by this news.

Nonetheless, our commitment to obtaining a 24/7 Freestanding ER for south Lee County that will ultimately lead to a medical surgical hospital in South Lee County, remains as resolute as ever. Therefore, we respectfully request an opportunity to meet with the full Bonita Community Health Center Board as soon as possible so that we can fully understand your position on this important matter.”

Lee Memorial Proposal Details

On March 19th the Lee Memorial Health System (LMHS) Board of Directors approved two motions in order to implement their commitment to provide Free-standing Emergency Services to south Lee County. They are:

1. “Administration is directed to extend an offer to the Naples Community Health System to purchase the NCHS share in the Bonita Community Health Center Joint Venture for the sum of one dollar. If the offer is accepted, LMHS will assume 100% of the bond obligations on this facility”. This transaction would add $28.5 million of bond debt obligation to their balance sheet.

2. “Administration is directed to include up to $4 million in capital in the FY’10 capital budget for the purpose of developing a Free-standing Emergency Room in the Bonita/Estero market and is authorized to spend not more than $500,000 in FY2009 to allow legal, planning, design, and architecture work to proceed immediately.” The analysis provided to the Board by Lee Memorial staff shows that the system would experience an estimated “net incremental gain” of about $2 million in the first year and $2.6 million in the fifth year.

LMHS’s project summary for  these facility further states:

•  “Absent any unknown regulatory delay, it would be reasonable to target opening of this facility by January 2011”, 
•  “Although Bonita Community Health Center would be the preferred location for the free-standing emergency room, LMHS has identified two other possible sites that are centrally located in the Bonita/Estero area. All of these locations are compatible with the target opening date”, and
• “Negotiations are currently underway with NCHS toward this goal and LMHS leaders are optimistic that a satisfactory resolution will be achieved. Regardless of the outcome of this negotiation, however, the free-standing emergency room would not be delayed.”

Airplane Noise Committee Progress Report

The Airport Noise Committee has met with the Federal Aviation Agency (FAA) three times over the last 10 months and has been working with them to find a solution that will resolve the problems created by the new flight patterns over the Estero/Bonita area, while at the same time maintain or increase air safety and efficiency, which are the primary concerns of the FAA. Doug Murphy, the Regional Director of the FAA, has had people from all over the region working on possible solutions and has the air control system testing out various alternatives.

Mr. Murphy has committed the FAA to a Town Hall meeting in our community, sometime in February, at which time he will give a full explanation of why the new flight patterns were put into effect and what modifications they will be able to provide us. As soon as we have a definite date for the Town Hall meeting, we will notify everyone of the time and place.

Background

On March 25 the members of the Joint ECCL/Brooks Concerned Citizens Airplane Noise Committee met with Doug Murphy, the Regional Director of the Federal Aviation Agency (FAA), and Bob Ball, the Director of the Lee County Port Authority, to discuss the impact that the recent changes are having on airplane noise levels in the Estero, Bonita Springs and Fort Myers Beach communities along the new route.

The Committee consists of a City Councilperson from Bonita Springs and Ft. Myers Beach; representatives of the major Estero communities along the new flight route, three retired commercial airline pilots, an IFR rated private pilot and a retired airport administrator. Prior to the meeting on the 25th members of the Committee met on several occasions to analyze what had happened and to develop an alternative flight route that would provide us with relief while not shifting the noise and pollution to other nearby communities.

Mr. Murphy explained why the route changes were made last October and apologized for not holding any public hearings although technically the FAA was not legally required to do so under. He listened to the Committee’s recommendation and committed to having his staff review it thoroughly; to have them meet with a small group representing the Committee, finalize their review of the proposal in about 2 to 3 months and committed to a large public meeting in the fall after many of our “snowbirds” have returned. Everyone in attendance left the meeting believing that it had been very cordial and quite productive. The following day Mr. Murphy met with a group of Fort Myers Beach residents and public officials.

On October 1, 2008 the Federal Aviation Agency (FAA) implemented a permanent change to the arrival and departure paths for commercial aircraft arriving and departing from the Southwest Florida International Airport (SWFIA) from cities in the northeast. As a result over 100 flights per day instead of reaching southwest Florida from over the Gulf of Mexico and approaching the Southwest Florida International Airport’s runway from the west, they are now being directed down the middle of the state past the airport and over densely populated sections of Estero, Bonita Springs and Fort Myers Beach before completing the same final approach path.

Fortunately the Brooks Concerned Citizens (BCC) became aware of the problem early and started to work on it even before it happened. During that period they have:

• Put together a small committee of dedicated professionals from the airline industry (retired commercial pilots, airport administrators and others) that have put together some alternatives that would be much better for the community than what is now in place.

• Met with airport officials, contacted our Lee County Commissioners and our Federal congressional delegation, as well as local FAA staff. The local airport authority does not have authority over the routes, and cannot make the needed changes.

• Became convinced that our strategy needs to be to get the FAA to change or modify this policy by putting pressure on our elected Federal delegation and the FAA officials. The County Commissioners, who also cannot make the changes, are committed to supporting our efforts and will soon be taking up a resolution to that effect.

• Have coordinated with some of the leaders in Ft. Myers Beach, who are also affected by this change, in order to broaden the coalition in support of a change in these routes.

On January 7th the leaders of Estero’s community organizations met with the City Council of Bonita Springs and discussed this issue with them. They responded enthusiastically and agreed to take up the issue at their next City Council meeting. The Bonita Springs City Council has now gone on record as seeking a change in these routes as well.

On January 14th the BCC and the ECCL met with Bob Ball, the administrator of the Southwest Florida International Airport, his staff and Lee County Commissioner Ray Judah to discuss the issue and to obtain their recommendations for remedying the situation. The Airport Authority states that they were not informed about the changes until shortly before they were implemented and indicated that they told the FAA that it should not be done without some public hearings that would provide them with valuable community input.

In anticipation of the meeting the Airport Authority and Commissioner Judah had contacted U. S. Representative Connie Mack’s office, our member of the U. S. House and a member of the Aviation Subcommittee of the House Transportation Committee. Mack’s office had not been aware of the impact of the change upon the residents of south Lee County until that call.

Since October 1st the BCC and the ECCL has been contacted by hundreds of Estero residents expressing concerns about the impact of the planes upon their ability to live here in peace and quiet, with air pollution concerns and concerns about the impact these flights will have on the value of their property.

 Midtowne Estero Rezoning to be Reviewed By the BOCC for a Fourth Time

On January 4th the Board of County Commissioners (BOCC) will review zoning for the Midtowne Estero development for the fourth time. If approved by the Board the 48.2 acre site on the southwest corner of Three Oaks and Corkscrew would be entitled to build 92 multi-family housing units, 280,000 square feet of commercial retail and 20,000 square feet of general office space.

After the Board rejected this request “without Prejudice” in September 2008 and the Special Magistrate’s Compromise proposal on March 24, 2009 the developer filed a Petition for Certiorari in the local Circuit Court. On November 19th the Judge in the case issued an Order finding in favor of the Developer and quashing the Board’s Resolution denying the Developer’s zoning request and the Special Master’s recommendation and remanded the case back to the Board for further proceedings. Judge Jay Rosman consistently found the county’s basis for rejecting the zoning application deficient and that our testimony, whether it related to increased traffic safety or compatibility with surrounding existing or planned development, was not fact based and therefore did not constitute “competent, substantial evidence”.

Judge Rosman’s decision in this case “quashes” the last two decisions of the Board where they rejected the “Big Box” zoning and rejected the special magistrate’s recommended compromise. As a result the Board is facing a decision to “either approve the rezoning application, or deny the application with sufficient analysis and reasoning to support its decision, with or without holding further hearings”.

Since learning about this Hearing we contacted some professional planners to learn more about the process and our alternatives. They found some provisions of the Land Development Code that had not been considered by staff and the Hearing Examiner. We presented them to County staff for their review and consideration but ultimately could not obtain their support for them. We have also tried to contact the developer to discuss the matter with him, but have not heard back.

On zoning matters like this we are prohibited by law from discussing the issue with the County Commissioners. In addition we are not sure what recommendations County staff will make, if any. So we urge all Estero residents to attend the Hearing and be prepared to encourage the Board to remand the matter back to the Hearing Examiner or to seek a compromise with the developer along the lines of our testimony at the last Hearing or as recommended by the Special Master.

Background

On March 24th representatives of the Estero Community including both the Estero Community Planning Panel (ECPP) and the Estero Council of Community Leaders (ECCL) asked the Lee County Board of County Commissioners (BOCC) to reject the Special Master’s recommendation and reduce the amount of commercial space that he had recommended from about 200,000 to something closer to the 90,000 square feet that the present zoning allows.

The primary concern of all the Estero residents who testified on the development is the traffic safety problems that the configuration of the site would have on the already dangerous intersection of Three Oaks Parkway and Corkscrew Road. The site is easy to enter but if you are traveling west or north exiting the site can be quite dangerous. The following graphic, presented to the BOCC, clearly demonstrates the difficulties that this development proposal would have caused… http://esterofl.org/Issues/MidTowne%20Traffic%20Out%20Only%20Final%203-18-09.pdf .

The Joint ECPP/ECCL position statement on the development can be viewed at http://esterofl.org/Issues/POSITION%20PAPER%20%203-18-09.pdf .

The BOCC was persuaded by these arguments and unanimously rejected the Special Master’s recommendations. If the developer wishes to challenge the BOCC’s earlier decision to reject a “big box” on this site he may now file a lawsuit in Circuit Court.

On September 15, 2008 the BOCC voted unanimously to deny, without prejudice, Ascot Development’s application to rezone the Midtowne Estero development, located on the southwest corner of Three Oaks and Corkscrew. The “without prejudice” language permits the developer to immediately initiate an effort to have a Special Magistrate resolve the dispute between the County and the Developer.

This rezoning application would have dramatically changed the zoning on the property by:

• Increasing the amount of commercial on the property from 90,000 square feet to about 300,000 square feet including a 140,000 “Big Box” store, and
• Reducing the number of housing units from 234 to 92 units.

In the fall of 2008 the Developer filed the necessary appeal in a timely manner so that it could trigger the Special Master Dispute Resolution Process contesting the BOCC’s rejection of their rezoning effort. Inasmuch as the Developer and the community had not reached an agreement when the Dispute Resolution process reached a decision point the Developer introduced a proposal that exceeded the 90 square feet of commercial development that had been the basis of all the discussions with the community. The community had an opportunity to provide input but was not a party to the dispute. As a result all negotiations were between County staff and the Developer.

The Consent Recommendation

On February, 20th Special Magistrate Simon Harrison issued his Consent Recommendation. That recommendation would permit the Developer to construct 179,999 square feet of retail commercial and 20,000 square feet for office use along with 92 residential units. Thus the community’s and the BOCC’s objection to an increase from 90,000 square feet of commercial to 300,000 square feet including a big box, would be adjusted to 200,000 square feet of commercial or about 2/3rds of what the Developer was originally seeking and more than double the existing zoning if the Special Magistrate’s recommendation is accepted by the BOCC on March 24th.

The Special Magistrate’s recommendations would require the Developer to provide some improvements to the River Ranch entrance to the property but does not address the concerns of the community about traffic circulation around the intersection of Corkscrew Road and Three Oaks Parkway, in spite of the added 110,000 square feet of commercial and the exclusively right-out exits on both of these roads. In addition it does not require the Developer to pay for any additional traffic signals on Three Oaks Parkway.

The Special Magistrate also provides the authority for the Developer to construct three drive-through out-parcels, only one of which can be a fast food enterprise. He further recommends a maximum of two fast food restaurants in the complex. Drive throughs along Corkscrew Road require a deviation from the overlay zoning provisions in Estero LDC because of the community’s effort to have all the buildings constructed up close to the Corkscrew Road.

Earlier

In late September 2008 Ascot met with representatives of the ECCL, many of whom had testified against the big box, to propose an amendment to the existing zoning that would retain the existing 90,000 square feet of commercial and 234 housing units. The suggestion would change the 9 acre commercial parcel from a single parcel into several outlots wrapping around the Three Oaks/Corkscrew corner.

On October 3, 2008 representatives of ECCL and the Brooks Concerned Citizens (BCC) joined Ascot in a meeting with Lee County Zoning staff. The purpose of the meeting was to determine if County staff would consider making this change “administratively”. Administrative approval of the change would permit the developer to rezone the property without the change being reviewed by a Hearing Examiner and final approval by the BOCC, thus saving the developer considerable time and money. Ascot agreed to present the proposal to the ECCL on October 17th and the ECPP on October 20th. The residents of Estero attending these meeting made the same points as were made at the earlier meetings.

In addition representatives of the Estero Fire Rescue Department sought a commitment from Ascot to pay for an emergency traffic signal in front of their Three Oaks station if a full median and signal could not be installed between Midtowne Estero and Lowe’s Three Oaks entrance. The developer’s agreed to pay half the cost of an emergency signal and to join the community and Fire Department at a meeting with county staff regarding the issue.

Estero’s Housing Permits Continue Slow Pace

During November 9 single family homes and 2 duplex units with a building value of $2.4 million were permitted in Estero. This continued slowdown in construction of new homes should help reduce the inventory of unsold new homes constructed in Estero during 2005 when 2,833 units were permitted.

Housing units permitted during the first eleven months of 2009 are slightly more than 2008 and far lower than all other year during the 10 years that the County has tracked Estero permits. The number of housing units permitted in Estero remains at rock bottom. The County permit information used in this report may be found at http://www.lee-county.com/dcd/Reports/EsteroReports.htm

The following table shows how the first eleven months of 2009 compares with the same period of the prior nine years:

Not only are the 2009 total housing units far below all prior years, they equal only 11% of the quantity during 2002, the season immediately following the tragedy of 9/11/2001.  

On the other hand the average building value, excluding the land beneath it, continues higher than all years but 2008 and about 2.2 times (118% above) the average in 2000. Some of this increase is due to the increase in the single family share of the permitted units.

Permitted Commercial Building Increases Very Slowly   

During the first eleven months of 2009 Estero building permits of all types continued at a very slow pace. The value of commercial buildings permitted in Estero during these eleven months totaled $9.55 million.

As the above table indicates Estero’s commercial development started to expand rapidly in 2004 and peaked in 2006 with a total of $184.7 million. (All figures are exclusive of the underlying land). Nonetheless, 2007 was still Estero’s second highest commercial development year, far ahead of the third place year, 2005, with $111 million. Commercial development in Estero has almost come to a stop this year, down 75% from last year (2008) and well below all other years on record.

From January through November the major projects that contributed to the 2009 year to date total are:

            $2,793,000 in the Coconut Point Town Center;

            $1,270,000 for improvements to the Lee County Corkscrew Road Wellfield

            $1,240,550 for Miromar Outlets expansion

            $1,000,000 for a new bank in the Coconut Trace Center

            $619,000 for Villages of Country Creek Water Storage System

            $104,800 for Estero Park Commons

REMINDER: The building values understate the cost of each residence or commercial building because it excludes the value of the underlying land.