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DEO issues final order on county’s 2019 plan amendments

By MELISSA BILL - | Oct 7, 2020


The Florida Department of Economic Opportunity has issued its final order that upholds Lee County’s land-use plan changes after a long battle with opponents who challenged the Lee County Board of Commissioners’ decision to amend official land-use policies in June 2019.

The order also rejected an effort to overturn approval for limerock mining at the Troyer Brothers potato farm off State Road 82 in Lee County. Troyer Brothers will likely become a limerock mine after approval by the county commission and the final order by the DEO.

“The DEO’s Final Order is one more step in finally reaching a conclusion to a series of baseless challenges filed by Opposition to Land Use changes,” said Lee County Deputy Attorney Michael Jacob said via email. “Unfortunately for Lee County taxpayers, the County was drawn into this process by a Company and its marketing campaign that disseminated misleading information to members of the public in order to scare the public into supporting its cause.”

The DEO’s final order comes months after a State Administrative Law Judge, Francine M. Ffolkes, rejected the arguments raised by Sakata Seed America Inc., a neighbor of the Troyer Brothers property, and recommended that the DEO issue a final order denying the appeal.

The Troyer Brothers property fronts on State Road 82, and is in close proximity to Sakata Seed, a business that develops new seed varieties and breeds various fruit and vegetable plants on its campus that includes greenhouses and irrigation systems.

Sakata Seed and resident Linda Nelson claimed in a petition filed with the administrative hearings division that county land-use plan changes made prior to the approval of Troyer Mine do not comply with state law and are “internally inconsistent” with the county’s comprehensive land use plan.

In an earlier interview, Randy Johnson, Branch Manager from Sakata Seed America Inc., called the court’s decision disheartening.

“We are very disappointed that Lee County has decided to deregulate limerock mining while there is still plenty of supply available to meet regional demands for decades. Map 14 was created by Lee County to conserve natural resources in the DR/GR, which includes groundwater, lime rock, wildlife, and farmland. Previous court cases have supported the validity of Map 14, but this illustrates how policies and judicial rulings ebb and flow over time. We will continue to operate our research facility while monitoring possible incompatibilities of the mine with our activities. We have a right to continue operations without interferences,” Johnson said.

Sakata has not yet commented on whether it intends to pursue a court challenge.

Prior to the DEO’s final decision, Sakata hired local land-use experts and brought in Priority Marketing of Fort Myers to handle public relations, and their own research and engineering analysis — the majority of the studies were contrary to those of Troyer Brother’s experts and the county’s staff.

Public meetings were also held in neighboring areas including Gateway and Lehigh Acres prior to the mining proposal going before the county commissioners for a vote.

Despite public opposition, the board approved a zoning change and eliminated a requirement that a need for more limerock be demonstrated before expanding mining capacity.

According to Julianne Thomas Senior Environmental Planning Specialist for the Conservancy of Southwest Florida, the DEO’s decision is not surprising. The environmental organization was just one of many groups who spoke out against the amendments to the Lee Plan on limerock mining.

“They didn’t really find in favor of Lee County. The Administrative Law judge determined that Sakata Seed hadn’t met the standard to prove that Lee County acted unreasonably, and DEO agreed. One thing that is super important to understand for comprehensive plan amendments is that it is incredibly difficult for a challenger to win,” Thomas said. In 2011, the rules were changes and the new standard — this is the real standard — is that if reasonable people can disagree, the County wins. So if two experts have different reasonable opinions, and one expert represents Lee County, Lee County wins.”

Thomas also commented on the unlikelihood of the DEO disagreeing with an Administrative Law judge.

“The Bell Mine case, though, illustrates some of our fears about eliminating Map 14. We were concerned about Lee County following the rules and public participation. They just approved a new lime rock mine without following the rules or appropriate public participation. Our fears have been realized,” Thomas stated.

Sakata Seed Corporation, Sakata America Holdings, Inc., and Linda S. Nelson have 30 days to file an appeal, or the DEO’s actions will end the administrative challenges filed.

For more information, visit  www.leegov.com/mining.