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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT

IN AND FOR LEE COUNTY, FLORIDA

ESTERO COUNCIL OF

COMMUNITY LEADERS, INC., and

RESPONSIBLE GROWTH

MANAGEMENT COALITION, INC. Plaintiffs,

v. CASE NO.:

LEE COUNTY by and through its

BOARD OF COUNTY

COMMISSIONERS,

Defendant. ____________________________/

COMPLAINT:

FLORIDA STATUTE 163.3215

DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff(s) file this Complaint seeking statutory review under Florida

Statutes Section 163.3215, statutory review of a development order that is

inconsistent with the duly adopted Comprehensive Plan.

1. This is a statutory action is brought pursuant to Florida Statutes

Section 163.3215 seeking review of a development order that is not consistent with

the duly-adopted Comprehensive Plan.

2. On November 18, 2015, the Lee County Board of County

Commissioners approved a rezoning of Rezone 1,361.1 acres from Agriculture

(AG-2) to the Residential Planned Development (RPD) zoning district, to permit

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development of up to 1,325 dwelling units in a remote location 6 miles east of I-75

on Corkscrew Road in the DRGR of Lee County, Florida. The property is located

on the north side of Corkscrew Road and is surrounded by agricultural or natural

lands.

3. The proposed Residential Planned Development (RPD) will increase

traffic on Corkscrew Road, which is a two lane road with no shoulder in the

vicinity of the RPD six (6) miles east of I-75 and far removed from other

residential planned developments.

4. The subject property is located within primary habitat map area for

the Florida Panther. Florida Panther have been killed in vehicle collisions on

Corkscrew Road including panther road kills on a segment of Corkscrew Road

located to the west of the subject property between the subject parcel and I-75 that

will be used by vehicles leaving and going to the proposed Residential Planned

Development (RPD). Florida Panthers utilize areas surrounding the subject RPD,

including the Corkscrew Regional Mitigation bank is directly east of the subject

property, the Flint Pen Strand is located southwest of the subject property and the

Southwest Florida International Airport Mitigation Park is located north of the

subject property. Florida Panthers will be adversely affected by the proposed

Residential Planned Development (RPD).

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5. Plaintiffs have statutory standing as adversely affected parties under

Florida Statutes 163.3215 as follows:

a. ESTERO COUNCIL OF COMMUNITY LEADERS, INC.,

(ECCL) is a not for profit corporation doing business in Lee County Florida.

ECCL is substantially adversely affected because it is a business operating in Lee

County and appeared and provided oral or written objections to Lee County at the

public hearings held by Lee County. ECCL has a Lee County business tax receipt

(formerly called an occupational license) for the business purpose of monitoring

growth management and habitat protection in Lee County, Florida. The ECCL

serves the residents of the incorporated Village of Estero and contiguous areas of

unincorporated Lee County as a voluntary, grass roots community organization

of Estero residents and more than 40 member organizations and residential

communities in the Estero area. Many of the ECCL members utilize and share

Corkscrew Road with the subject parcel to be rezoned RPD on Corkscrew Road.

The ECCL presented comments and objections to Lee County regarding the

subject RPD rezoning and have presented comments to Lee County regarding

growth management, planning and zoning issues for more than a decade. ECCL

publishes a monthly newsletter called the Estero Development Report (EDR)

which chronicles residential and commercial developments. In addition, the ECCL

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issues periodic reports to its members and holds public meetings on the current

proposed developments and growth related issues that are being addressed,

monitored, or anticipated by the ECCL and provides a calendar of opportunities for

involvement, and in-depth status reports on on-going projects, meetings and results

of those meetings. The ECCLs electronically publishes a monthly newsletter

called the Estero Development Report (EDR), which is emailed directly to

approximately 3,700 households and public officials. ECCL has been in existence

for more than one year, and has more than 30 members who are located in Lee

County. ECCLs substantial interests will be affected because a substantial

number of residents in member communities live near, use or benefit from the

Density Reduction Groundwater Resource (DRGR) area natural resources and

ecosystems, recreational opportunities, birding and wildlife observation and who

will be adversely affected by the rezoning that is inconsistent with the Lee Plan

and fails to adequately protect the natural resources of the DRGR.

b. The RESPONSIBLE GROWTH MANAGEMENT COALITION, INC.

(RGMC) is a not-for-profit corporation whose corporate purposes include

supporting responsible growth management and protecting and conserving the air,

water and natural resources of the State of Florida and also includes litigation for

the purposes of implementing and enforcing local and state land use and zoning

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laws and local and state environmental protection laws. Its membership consists of

approximately 90 individual members and a number of organizational members. A

substantial number of RGMC reside in the SE Lee County and utilize the Density

Reduction Groundwater Resource Area for recreation, birding and wildlife

observation and educational purposes. The RGMC presented comments and

objections to Lee County regarding the subject RPD rezoning and have presented

comments to Lee County regarding growth management, planning and zoning

issues for more than a decade. RGMCs substantial interests will be affected

because a substantial number of its members live near, use or benefit from the

DRGR area natural resources and ecosystems, recreational opportunities, birding

and wildlife observation and who will be adversely affected by the rezoning that is

inconsistent with the Lee Plan and fails to adequately protect the natural resources

of the DRGR.

6. Plaintiffs object to the development as inconsistent with the duly

adopted Comprehensive Plan and are aggrieved or adversely affected persons

that will suffer an adverse effect to an interest protected or furthered by the

Comprehensive Plan, including adverse impacts to interests related to intensity of

development, which exceeds in degree the general interest in community good

shared by all persons because a substantial number of members of ECCL and

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RGMC utilize the lands near and adjacent to the subject parcels for wildlife

observation, birding, recreation and educational purposes on a daily, weekly or

monthly basis and will be adversely affected by the approval of a development

order that is not consistent with the Comprehensive Plan.

7. Plaintiffs have statutory standing to bring this action under Florida

Statutes Section 163.3215 because the development order is not consistent with the

duly adopted comprehensive plan and will adversely affect Plaintiffs interests,

which are protected by the Comprehensive Plan.

8. The subject development application is a development order as

defined by Fla. Stat. 163.3164 that must be consistent with the duly adopted

local Comprehensive Plan under Fla. Stat. 163.3215 (2012)1.

9. Chapter 163, Part II, Florida Statutes, the Local Comprehensive

Planning and Land Development Regulation Act (now called the "Community

Planning Act"), required each local government in Florida to prepare and adopt a

local comprehensive plan containing mandatory elements that address important

1 Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4th DCA, 2001) cert. denied

821 So.2d 300 (Fla. 2002)(inconsistent development shall be enjoined and

demolition of inconsistent building ordered by court because of inconsistency with

duly-adopted comprehensive plan). See also Brevard County v. Snyder 627 So.2d

469 (Fla. 1993)(thorough explanation of legislative history of comprehensive plan

consistency requirement).

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issues such as land use.

10. After a local government has adopted its comprehensive plan,

163.3194(1)(a) of the Community Planning Act requires that all actions taken by

the local government in regard to development orders be consistent with the

adopted local comprehensive plan. 163.3215, Florida Statutes.

11. The Community Planning Act 163.3194(3), Florida Statutes defines

"consistency" as:

(a) A development or land development regulation

shall be consistent with the comprehensive plan if the

land uses, densities or intensities, and other aspect of

development permitted by such order or regulation are

compatible with and further the objectives, policies, land

uses, and densities or intensities in the comprehensive

plan and if it meets all other criteria enumerated by the

local government.

(b) A development approved or undertaken by a local

government shall be consistent with the comprehensive

plan if the land uses, densities or intensities, capacity or

size, timing, or other aspects of the development are

compatible with or further the objectives, policies, land

uses, and densities or intensities in the comprehensive

plan and if it meets all other criteria enumerated by

the local government.

12. Once a local government has adopted its comprehensive plan, Section

163.3194(1)(a) of the Local Comprehensive Planning Act or Growth Management

Act, requires that all actions taken by the local government in regard to

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development orders be consistent with the duly-adopted local comprehensive plan.

13. The Community Planning Act places the burden for enforcement of

the requirement of consistency of development orders with duly-adopted

Comprehensive Plans on citizens through the citizen enforcement provision of

Section 163.3215, Florida Statutes (2012): Section 163.3215 (1) provides that "any

aggrieved or adversely affected party" may bring a civil action for injunctive or

other relief against any local government to prevent the local government "from

taking any action on a development order which materially alters the use or

density or intensity of use" of a parcel of property in a manner that is not consistent

with the adopted local comprehensive plan.

Comprehensive Plan

14. The subject Development Application would allow additional uses

and increased intensity on the subject parcel(s), causing or increasing adverse

impacts on plaintiffs surrounding existing uses. The proposed uses are not

compatible with the surrounding existing uses in a manner that is not consistent

with the goals, objectives and policies contained in the duly-adopted

Comprehensive Plan and the proposed development order does not meet all other

criteria enumerated by the local government.

15. The state-defined Development Orders (DO) approves development

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of the subject property in this particular location at a density and intensity that is

not consistent with the following Goals, Objectives and Policies contained within

the Comprehensive Plan when the entire Lee Plan is taken as a whole.

16. The future land use classification of the property is Density

Reduction/Groundwater Resource (DR/GR) under Lee Plan Policy 1.4.5 and

Wetlands. Lee Plan Policy 1.5.1 within the Southeast Density Reduction

Groundwater Resource Overlay," which contains five distinct land areas.

17. The Corkscrew Farms site is within the "Environmental Enhancement

and Preservation Overlay and Environmental Enhancement and Preservation

Community" under Lee Plan Policy 1.7.13, [new] Policy 33.3.4 and Maps, 6, 7,

and 17. These land areas are comprised of properties within the DR/GR with the

potential to improve and restore important regional hydrological and wildlife

connections" and were targeted for acquisition and preservation.

18. The subject land is located within Priority Restoration Strategy Tier

1 (highest priority) Special Treatment Area on Lee Plan, Map 1, Page 4.

Approval of the proposed RPD rezoning for 1,325 dwelling units in this particular

location on Corkscrew Road is an irreversible land-use change that is inconsistent

with the connection of existing corridors or conservation areas under Lee Plan

including [new] Policy 33.3.4(2)(a)(5) requirement to provide critical wildlife

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connections to adjacent conservation areas, and POLICY 33.2.2: The DR/GR

Priority Restoration overlay depicts land where protection and/or restoration would

be most critical to restore historic surface and groundwater levels and to connect

existing corridors or conservation areas (see Policy 1.7.7 and Map 1, Page 4). This

overlay identifies seven tiers of land potentially eligible for protection and

restoration. with Tier 1 and Tier 2 being the highest priority for protection from

irreversible land-use changes.

19. The Future Land Use Element of the Comprehensive Plan only

establishes a long-range maximum density, but does not guarantee an immediate

minimum density. Brevard County v. Snyder 627 So.2d 469 (Fla. 1993). The

density in the vast majority of the surrounding DRGR is one unit per ten acres, The

RPD is a ten-fold increase above the surrounding DRGR density of 1 dwelling unit

per 10 acres (132.5 units) to the new maximum allowable long term future density

of 1 per 1 acre (1,325 units) is not currently appropriate at this time and in this

location.

20. The location of the subject RPD parcel includes primary panther

habitat and is currently served by the 2-lane Corkscrew Road with no road

shoulders and is leap frog development that is far removed from urban services,

other non-acreage residential developments, shopping, schools and workplaces and

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approval of the RPD at this time is inconsistent with Lee Plan Objective 33.3

(Environmental Enhancement and Preservation Community); Policies: 1.4.5,

1.5.1, 5.1.7, 33.3.4.3, and 135.1.9.

21. The RPD will generate approximately 12,000 trips per day on

Corkscrew Road and will place an undue burden upon existing or planned

transportation infrastructure and is inconsistent with Lee Plan Policies: 33.3.4.2,

38.1.6, and 39.1.1; LDC 34-411(d) and (e).

22. Project access is via two driveways onto Corkscrew Road, a County

maintained arterial road. The Lee Plan requires the County to complete a

transportation study to determine the road improvements necessary to address

increased densities anticipated from the implementation of the Environmental

Enhancement and Preservation Overlay, which has not been completed and

approval of the RPD at this time is inconsistent with Lee Plan Policy 38.1.9.

23. This study will not be complete until mid 2017 and as of yet there are

no financing strategies for the road improvements to be identified in the study and

approval of the RPD at this time is inconsistent with Lee Plan Policy 33.3.4.

24. Needed site related improvements on Corkscrew and Alico Roads

have not been adequately evaluated and approval of the RPD at this time is

inconsistent with Lee Plan Policies 38.1.6 and 39.1.1 and Lee Plan Glossary

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definition Site-related improvements.

25. The Lee Plan requires the availability and proximity of urban services

to be evaluated during the rezoning process. Urban services are the services,

facilities, capital improvements, and infrastructure necessary to support

development." This leap-frog RPD is literally located in the middle of

nowhere. Future residents will have to drive five or more miles to access the

nearest facilities and services, including libraries, schools, medical services,

workplaces and shopping centers. Approval of the RPD at this time is inconsistent

with Lee Plan Policies: 2.2.1 and 33.3.4.2. The location is far removed from any

other similar residential development and the proposed maximum density is not

appropriate at this time in this proposed location far removed from work and

shopping locations. The extremely limited mixed retail use that is proposed in the

RPD is inadequate to sufficiently capture internal trips needed to reduce the

number of vehicle trips and approval of the RPD at this time is inconsistent with

Lee Plan Map 17; Objective 33.3; Policies 1.4.5, 1.7.13, and 33.3.4.

26. Approval of the RPD at this time is inconsistent with Objective 107

and the policies thereunder because the subject property is located within primary

habitat map area for the Florida Panther. Florida Panther have been killed in

vehicle collisions on Corkscrew Road including panther road kills on a segment of

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Corkscrew Road located to the west of the subject property between the subject

parcel and I-75 that will be used by vehicles leaving and going to the proposed

Residential Planned Development (RPD). Florida Panthers utilize areas

surrounding the subject RPD, including the Corkscrew Regional Mitigation bank is

directly east of the subject property, the Flint Pen Strand is located southwest of

the subject property and the Airport Mitigation land is located north of the subject

property. Florida Panthers will be adversely affected by the proposed Residential

Planned Development (RPD). The RPD as proposed is inconsistent with efforts by

Lee County to protect Florida Panthers set forth in the Comprehensive Plan,

including:

POLICY 2.11.4:

Evaluate science based goals to assess what is necessary to maintain desired environmental factors (i.e. panthers extant, Estero Bay health, etc.)

OBJECTIVE 107.3: WILDLIFE.

Maintain and enhance the fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system. (Amended by

Ordinance No. 94-30)

POLICY 107.3.2:

Participate with the Southwest Florida Regional Planning Council and the Florida Game and Fresh Water Fish Commission in the development of a

regional plan that identifies and protects areas utilized by wildlife, including

panthers and bears so as to promote the continued viability and diversity of

regional species.

OBJECTIVE 107.4: ENDANGERED AND THREATENED SPECIES.

Lee County will continue to protect habitats of endangered and threatened

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species and species of special concern in order to maintain or enhance

existing population numbers and distributions of listed species.

POLICY 107.4.2:

Conserve critical habitat of rare and endangered plant and animal species through development review, regulation, incentives, and acquisition. POLICY 107.4.3:

Require detailed inventories and assessments of the impacts of development where it threatens habitat of endangered and threatened species

and species of special concern.

POLICY 107.4.4:

Restrict the use of protected plant and wildlife species habitat to that which is compatible with the requirements of endangered and threatened species

and species of special concern. New developments must protect remnants of

viable habitats when listed vegetative and wildlife species inhabit a tract

slated for development, except where equivalent mitigation is provided.

OBJECTIVE 107.11: FLORIDA PANTHER AND BLACK BEAR.

County staff will develop measures to protect the Florida Panther and black bear through greenbelt and acquisition strategies.

POLICY 107.11.1:

Lee County will maintain and update data on sitings and habitat for the black bear and Florida Panther.

POLICY 107.11.2:

Encourage state land acquisition programs to include known Florida Panther and black bear corridors. The corridor boundaries will include

wetlands, upland buffers, and nearby vegetative communities which are

particularly beneficial to the Florida panther and black bear (such as high

palmetto and oak hammocks).

POLICY 107.11.3:

Lee County will inform Collier and Charlotte counties as to Lee County corridor acquisition projects to encourage a regional approach to corridor

acquisition.

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POLICY 107.11.4:

The county will continue to protect and expand upon the Corkscrew Regional Ecosystem Watershed Greenway, a regionally significant

greenway with priority panther habitat, through continued participation in

land acquisition programs and land management activities and through

buffer and open space requirements of the Land Development. POLICY 107.11.5:

The county will continue to include the Florida Panther and black bear in the protected species management section of Chapter 10 of the Land

Development Code.

POLICY 107.11.6:

In any vegetation restoration projects conducted by Lee County for land acquired due to its environmental sensitivity (such as the Six Mile Cypress

Strand and the Flint Pen Strand), plant lists will include species that provide

forage for the prey of the Florida Panther and forage for the black bear.

because Florida Panther travel across Corkscrew Road to access primary habitat

areas on the north side of Corkscrew Road, and approval of this RPD with the

number of units proposed in this particular location is within the primary and

secondary panther habitat frequently used by the Florida Panther. Panther

mortality caused by vehicle collisions has already occurred along Corkscrew Road.

Approval of the RPD for an additional 1,325 units will result in increased vehicle

use generating an increase of approximately 12,000 vehicle trips per day on

Corkscrew Road, will increase the probability of vehicle-panther interactions

resulting in panther mortality on Corkscrew Road.

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27. The RPD rezoning will adversely affect environmentally critical areas

and natural resources and approval of the RPD at this time is inconsistent with Lee

Plan Goals: 60, 61, 63, 77, 107, 114, and 115; Objectives: 33.2, 33.3 (protection,

preservation and restoration of strategic regional wildlife connections), 60.4,

60.5, 61.2, 77.1, 77.3, 104.1, 107.1, 107.3, 107.4, 107.11 and 117.2; Policies 33.2.1

(connecting wildlife corridors and conservation areas), 33.2.1, 33.3.4., 60.1.2,

60.5.1, 60.5.2, 60.5.3., 77.3.1, 77.3.5, 107.2.6, 107.2.8, 107.3.1 (upland

preservation to promote wildlife diversity), 107.4.1, 107.4.3, 107.4.4, 107.10.2

(wood stork), 107.10.3, 107.11.4 (bear and panther), 114.1.2, and 115.1.3.

28. Approval of the RPD at this time is inconsistent with the overall goals,

objectives and policies of the Lee Plan when taken as a whole.

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REMEDIES AND RELIEF REQUESTED

29. Plaintiffs seek all statutory remedies and relief available under

Florida Statutes Section 163.3215:

a. a full and fair de novo trial on the merits of whether the

Development Orders are not consistent with the Lee County Comprehensive

Plan as a statutory cause of action set forth in Florida Statutes Section

163.3215;

b. all appropriate judicial remedies including an order of the circuit

court quashing, revoking, invalidating and vacating the approval of the

Development Orders;

c. if necessary, an order of this court requiring restoration, demolition

or removal of any and all inconsistent development activity undertaken

during the pendency of the consistency challenge. Pinecrest Lakes, Inc. v.

Shidel, 795 So.2d 191 (Fla. 4th DCA, 2001) cert. denied 821 So.2d 300 (Fla.

2002) (The Florida Supreme Court upheld demolition where the developer

began construction and continued with it in the face of full knowledge that

this litigation sought to prevent that very construction even though no

temporary injunction was sought)

d. any other relief deemed appropriate by the Court in this matter.

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Respectfully submitted,

/s/ Ralf Brookes

RALF BROOKES ATTORNEY

Florida Bar No. 0778362

1217 E Cape Coral Parkway #107

Cape Coral, Florida 33904

Telephone (239) 910-5464

Facsimile (866) 341-6086

Ralf@RalfBrookesAttorney.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished via

email on or before December 17, 2015 to: Lee County Attorneys Office 2115 2nd

Street, Ft Myers 33901-3012 via eportal rwesch@leegov.com

/s/ Ralf Brookes

_________________________

RALF BROOKES ATTORNEY

Florida Bar No. 0778362

1217 E Cape Coral Parkway #107

Cape Coral, Florida 33904

Telephone (239) 910-5464

Facsimile (866) 341-6086 Ralf@RalfBrookesAttorney.com