Legal fight over Rivergrass Village in eastern Collier County headed for trial

Laura Layden
Naples Daily News

A legal fight over Collier County's approval of a rural village called Rivergrass is headed to trial. 

The judge who's handling the case, however, has limited the challenger's arguments against the county, the developer and the project.

Collier Circuit Judge Hugh Hayes granted a motion for summary judgment by the developer, Collier Enterprises, thereby narrowing the scope of what can be argued at trial.

A non-jury trial is scheduled for March 23.

The challenger, the Conservancy of Southwest Florida, sued Collier County early last year, within months of the county commission's approval of Rivergrass, a proposed 1,000-acre village along Oil Well Road, east of Golden Gate Estates.

More:Collier Enterprises reintroduces plan for town in rural Collier County

Previous coverage: Rivergrass lawsuit filing, internal county memo raise conflict of interest questions

Collier Enterprises later joined the suit on the county's side.

In its suit, the Conservancy makes numerous claims about why the county shouldn't have approved the development order for the controversial village in the Rural Lands Stewardship Area.

The stewardship area encompasses 185,000 acres around Immokalee east of Golden Gate Estates with the Florida Panther National Wildlife Refuge to the south and the Okaloacoochee Slough State Forest to the north. It allows developers to build more intense towns and villages on property with lower conservation value, in exchange for preserving more environmentally sensitive land, through a credit system.

In its suit, the Conservancy alleges if the village is built as proposed it would be "dangerous for pedestrians, increase traffic congestion, harm wildlife, destroy species habitat, unduly burden taxpayers, result in sprawl," and "otherwise fail" to adhere to the Growth Management Plan's "design provisions governing land use, density and intensity." 

Collier Enterprises proposes to preserve 5,243 acres of environmentally sensitive lands - equal in size to six Central Parks in New York City - as part of the plan for Rivergrass Village.

In his order, Judge Hayes ruled that any arguments by the Conservancy that don't relate directly to the requirements of the county's Growth Management Plan, or comprehensive plan, couldn't be considered at trial.

That means the Conservancy's arguments must be based strictly on the approved uses — or the density or intensity of uses —  in the Rivergrass development.

The judge's order curtailed the Conservancy's ability to pursue claims relating to the project's impact on traffic or cost to taxpayers, for example.

Any claims tied to alleged violations of the land development code will also not be considered at trial, as the code is separate and apart from the Growth Management Plan.

The judge ruled in favor of the developer's motion for summary judgment at a court hearing back in February.

However, he didn't sign an order until weeks later — and his order didn't get recorded until March 8.

In a letter to Judge Hayes before he signed his order, the Conservancy's attorney Brian Israel said the opposing sides differed on the meaning and effects of his ruling from the bench.

Further, the attorney described the order proposed by Collier Enterprises — and ultimately supported by the judge — as confusing, leaving his clients and their legal team to wonder what grounds for the Conservancy's claims could proceed at trial. 

State law allows anyone with standing to file legal actions seeking to invalidate a development order based on inconsistencies with a governing comprehensive plan.

More:Collier commissioners approve proposed changes to rural growth plan

Previously:Conservancy of Southwest Florida sues Collier County over Rivergrass Village

And:Collier Enterprises joins county's side in Conservancy's Rivergrass Village lawsuit

However, Israel noted in his letter to Hayes that the judge's statements at the February hearing suggest he may believe that none of the Conservancy's growth management-related claims fit within the scope of that state law, giving it the right to challenge the project.

If that's the judge's opinion, Israel suggested it might have been better for him to make a final summary judgment that resolved the case, which Collier Enterprises sought, instead of allowing the legal action to proceed to trial with such uncertainty, or doubtfulness.

County Attorney Jeffrey Klatzkow and representatives for Collier Enterprises have declined to comment on the case, or upcoming trial, citing the ongoing litigation.

As the trial approaches, Collier Enterprises continues to pursue county approvals for two more villages in the Rural Stewardship area, which have also sparked controversy and face opposition from the Conservancy. 

The county's Planning Advisory Board will continue its deliberations on the projects, known as Longwater and Bellmar, at its next meeting, scheduled for Thursday.

Federal concerns over villages

Separately, Collier Enterprises has reintroduced a plan to build a new town that would link and support Rivergrass and the developer's two other villages, but it hasn't submitted a formal application for the concept yet.

The Conservancy and others have also voiced concerns about the proposed town's impact on wildlife and cost to taxpayers.

"The Conservancy and its experts have estimated that Rivergrass, along with two other proposed developments (Longwater and Bellmar), will cost Collier County taxpayers tens of millions of dollars in direct contradiction of the Collier County Growth Management Plan. The Conservancy is evaluating all legal options to protect the County, its citizens and its natural resources," said Rob Moher, the Conservancy's president and CEO, in a statement.

Last week, the county received a surprising letter from a branch of the U.S. Department of Interior requesting that it take a pause in considering more rural developments by Collier Enterprises.

An American white ibis sits in a tree in a wetland area south of Lake Trafford on Monday, January 20, 2020. Under the Rivergrass Village proposal, the area would become part of a Stewardship Sending Area, which would be preserved and maintained in perpetuity.

The letter, which stated that Collier needs to "implement a more comprehensive planning approach," caused confusion among county leaders.

County commissioners briefly discussed the meaning and implications of the request at their board meeting Tuesday.

Kevin Godsea, manager of the Florida Panther National Wildlife Refuge, part of the U.S. Fish and Wildlife Service — an agency that falls under the Department of Interior — told county commissioners the letter reflected his concerns about the projects, which aren't regulatory in nature.

The letter wasn't a plea meant to stop the county's review process for the two villages,  but rather to allow enough time to ensure adequate protections for wildlife and plans for hydrological restoration.

There was another reason behind the plea, he said, and that's to make sure his agency can continue doing its important work, which includes controlled burns of 4,000 to 7,000 acres a year to prevent catastrophic fires on protected lands out east. 

At times, residents of these future villages will be in the refuge's "smoke columns," and Godsea wants to make sure they are aware of it before deciding to move to the more remote areas of the county.  So the letter was meant for "indemnification," or protective, purposes.

He told commissioners he planned further discussions with Collier Enterprises on his concerns, which have been expressed many times, but not adequately addressed by the developer.

"They're not surprised by the content," Godsea said of the developer and the demands in his letter. "I think they are surprised by the timing."

Tomatoes grow in an agricultural field on the proposed site of Rivergrass Village near Oil Well Road on Monday, January 20, 2020.

Commissioner Bill McDaniel assured Godsea his demands as a neighboring agency to the villages would be addressed as part of the ongoing public review process. 

Asked to weigh in on the discussion, county attorney Klatzkow said he didn't see a way to put a stay or moratorium on the county's review process for the proposed villages anyway.

He said if the federal government wants to get involved, it can do so through its own regulatory, or permitting process.

"I don't know why it's on us," Klatzkow said. "But we can't pause it at this point in time. Not for any reason I've heard."