Conservancy of Southwest Florida loses court fight against rural village Rivergrass but will fight on

Laura Layden
Naples Daily News

The Conservancy of Southwest Florida has lost its legal challenge of a rural village known as Rivergrass. 

After a five-day, non-jury trial last week, Collier Circuit Judge Hugh Hayes ruled from the bench late Friday, finding in favor of Collier County and Collier Enterprises, the landowners.

The landowners joined the case in support of the county after the Conservancy filed its suit in March of 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.

In his ruling, Hayes cut to the chase. The defendants, he said, "clearly won their case" based on strong arguments, evidence and witnesses.

The judge's decision won't become official until he signs an order, which could happen as soon as this week.

The county and the landowners declined to comment, pending the final order.

Previously:Legal fight over Rivergrass Village headed for trial

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

Rivergrass, Longwater and now Bellmar:Collier planners recommend approval of another rural village

In an emailed statement after the ruling, the Conservancy said its fight isn't over, as it plans to appeal the judge's decision to the Second Circuit.

The Conservancy advocates for solutions its leadership believes balance growth and preserve natural resources. 

"The pursuit of our mission and science-based policy have guided us through this process as we legally challenge these precedent-setting issues that will negatively impact an extensive amount of environmentally sensitive lands," the grassroots group said in its statement.

With its appeal, the Conservancy further stated it intends to "make every effort to ensure that the proposed Rivergrass development complies with the intent and mandatory requirements of the Collier County Growth Management Plan and all applicable laws."

The judge's decision covered all seven of the Conservancy's surviving claims, which he found unconvincing.

Ahead of the trial, Hayes tossed out a handful of other claims against the project, narrowing the scope of what the Conservancy could present when he heard the case.

At trial, the Conservancy argued Rivergrass violates county law as proposed because it fails to encourage pedestrian circulation, to provide the required uses and mix of uses and to avoid urban sprawl in an area of critical concern.

Moreover, the group claims the project lacks the required mixed-use village center, parks or public green spaces within neighborhoods, diversity of housing, and transition from denser and more intense uses at its core to lesser ones at its edges.

More of our previous coverage:

Claims based on rules governing Rural Lands Stewardship Area

The Conservancy based its case primarily on the rules governing the Rural Lands Stewardship Area, or RLSA, which are found in the county's Growth Management Plan.

In a nutshell, the group contends Rivergrass represents the antithesis of what should be built on the rural lands.

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.

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

The RLSA program 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. It's designed to prevent urban sprawl, addressing state concerns about the protection of wildlife and wetlands dating back to the 1990s.

In his ruling, Hayes said in legal challenges such as the Conservancy's the court must look at the plain language of the county's Growth Management Plan and case law to make a decision, "not to the stars."

He said he couldn't rely upon subjective ideas of what projects should or shouldn't include or should or shouldn't look like to determine the legality of a project.

In his brief comments, the judge picked holes in some of the arguments made by the Conservancy's expert witness Charles Gauthier, a private consultant whose decades of experience include stints as chief of long-range planning and a planning manager for Collier County.

Gauthier spent "an awful long time" dwelling on the sidewalk system in his testimony, suggesting it wouldn't be adequate, while looking past the larger picture of interconnectivity in the proposed village, including the planned bike paths, Hayes said. 

Not every resident will want to walk to the village center for a carton of milk, he said, choosing to take a bike, golf cart or car instead.

On top of that, Hayes said he felt Gauthier used "pretty extreme examples" to try to drive home his point about a lack of walkability. One of his examples showed a resident living on the north side of Oil Well Road roughly 300 feet from the village center (in a straight line) having to walk 6,741 feet, or more than a mile, to get there, based on the design of the sidewalk system — and Rivergrass itself.

The judge pointed out Gauthier testified as a hired expert for the Conservancy, and he's done the same in other land use cases, sometimes representing the opposite side, requiring him to present information in a different way to suit his clients' needs.

Paw prints appear in the sand around an agricultural field near Oil Well Road on Monday, January 20, 2020.

Judge: Rivergrass complies with Collier's Growth Management Plan

Ultimately, Hayes found the development order the county approved for Rivergrass consistent with the Growth Management Plan.

His job isn't to look into what he described as the "metaphysical possibilities," Hughes said, or to rewrite Florida statutes governing the type of challenge brought by the Conservancy.

Based on state and case law, the judge determined the Conservancy could only challenge Rivergrass based on use, density, and intensity. The Conservancy, he said, failed to show how the village would fall short of — or exceed — what can legally be built in the RLSA. 

During the trial, the Conservancy showed how the village might be built differently to address its concerns, from making it more compact to adding a bike path and wildlife corridor over heavily-trafficked Oil Well Road.

The Conservancy's attorneys told the judge the group doesn't oppose development. Rather, they stressed the group's objective has been to force the landowners back to the drawing board to redesign the village in a way that fits with the goals, intentions and requirements of the RLSA. 

An agricultural field near Oil Well Road that would become part of a Stewardship Sending Area under the Rivergrass Village proposal sits unused on Monday, January 20, 2020.

There's a need to "correct the legal errors in the development order," said Lauren Daniel, one of the Conservancy's lawyers based in Washington, D.C.

In his closing arguments representing Collier Enterprises, Glenn Burhans, an attorney for Stearns Weaver Miller in Tallahassee, described the Conservancy's efforts as "selective surgery." 

At times, he said, he felt he was on trial, rather than the development order.

Testimony from the other side, Burhans said, involved a lot of should've, could've and would've, and arguments based on requirements that don't exist in the Growth Management Plan.

The very fact that Rivergrass is a mixed-use project that will use and meet the requirements of the RLSA program not only makes it consistent with the Growth Management Plan — but innovative, Burhans said. 

The development strategies the developer will employ are recognized methods of discouraging urban sprawl, he said.

During the trial, Burhans described the case as "very simple," saying the Growth Management Plan is the decisive document.

The plan, he said, determines what a developer can build "in the real world" for people who want to actually live there.

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.

After Hayes issues his order, Collier Enterprises and the county plan to file claims for attorneys' fees and other costs related to their defense of the lawsuit. 

Estimates of those costs have not yet been calculated.

The Conservancy is not only disappointed by the judge's ruling, but his earlier decision to limit the issues that could be heard and argued in the case.

"The court declined to hear evidence that Rivergrass will cost Collier County taxpayers millions of dollars and will result in widespread worsening of traffic congestion," the Conservancy stated. "In addition, the court declined to hear evidence that Rivergrass Village fails to comply with the Collier County Land Development Code."