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JMB TRANSPORTATION ENGINEERING, INC.
TRAFFIC/TRANSPORTATION ENGINEERING & PLANNING SERVICES
MEMORANDUM
October 7, 2013
To: Board of County Commissioners
From: James M. Banks, P.E.
RE: Safety Considerations on Corkscrew Road & Sand Delivery/Dump trucks
Dear Commissioners:
)cki7,i Ja r?,v5
&nos
I am aware that the Board of Collier County (BCC) is reviewing the issue of Sand Trucks
traveling on Corkscrew Road, and that Lee County Government has provided some
information that supports their request that an alternate route be used. As you know, part
of their submitted data or claims have to do with safety issues along Corkscrew Road.
With respect to Lee's request that safety issues be made a part of your deliberations, I
don't believe that the BCC has been provided a complete assessment of the issues
regarding dump truck- related crashes. Once the BCC is provided with a breakdown of the
dump truck crash events (see items I thru 6 below), then an informed decision can be
made. If such an effort was made to disclose all the facts to the BCC, then I suspect you
will find that the evidence proves that the use of Corkscrew Road will not create a
heightened safety issue, or that somehow other roads of similar status and condition are
(for some unexplained reason) safer for truck travel.
My firm conducted a review of the crash reports along Corkscrew Road between the
years 2003 thru 2006 and found that "trucks" were involved in a low percentage of
crashes and "dump trucks" even less. The type of dump truck crashes varied, but can be
summarized as: a.) single truck crashes, b.) truck- truck, and c.) truck- passenger car
crashes. The truck- passenger crashes also included "passenger car at- fault"
accidents. There were no recorded school bus -truck crashes, no truck- pedestrian crashes,
and no fatalities related to trucks, during that period.
It is my opinion that the BCC has not been provided with all the factual evidence needed
to make a decision related to truck safety. That is, without establishing the frequency of
dump truck at -fault crashes vs. other types of crashes along Corkscrew Road, no fact -
based conclusion can be reached.
I believe the BCC must be provided the following additional information for
consideration:
11Pas e
lip
JMB TRANSPORTATION ENGINEERING, INC.
1. Average daily volume of dump trucks and the total average daily traffic (ADT) for the
past 3 to 5 years along Corkscrew Road (between I -75 and S.R. 82).
For 2 thru S below, use the same 3 to S years and road segment as above
2. Total number of recorded crashes (all vehicle types) along Corkscrew Road.
3. Total number of crashes that involved a dump truck (do not include non -dump trucks
in this stat as the issue specifically pertains to dump trucks).
4. Total number of dump truck crashes that involved a passenger car or pedestrian.
5. Total number of dump truck w/ passenger car crashes where the truck driver was cited
"At- Fault ".
6. Description, location and severity of each dump truck crash.
Also for your consideration, the conclusions of the Morris -Depew Traffic Safety Analysis
are consistent with my firm's previous findings.
My regards,
Jim
2 1Page
110
a p� 0
ENGINEERS • PLANNERS • SURVEYORS
LANDSCAPE ARCHITECTS
•LC26000330
Traffic Accident Analysis — Corkscrew Road Excavation, DC12006 -00026
Introduction
This traffic accident analysis was undertaken to determine whether the number of heavy trucks (dump
trucks, cement mixers, etc.) traveling on Alico Road and Corkscrew Road in southeast Lee County make
the roadways less safe than other roadways in Lee County, and if the trucks negatively impact public
health, safety and welfare. To gain a better overview of the County roadway network in general, data
was gathered from the Lee County DOT and GIS. Additionally, reference is made to the Lee County
Comprehensive Plan (Lee Plan).
Tracy Burrows (A Survey of Zoning Definitions. Planning Advisory Service, 1989; p. 33) defines an arterial
road is one which is interregional in nature, conveying traffic between towns, boroughs, and other
urban centers. Efficient movement is the primary function of arterial roads, hence, private access and
frontage should be controlled and limited to high - volume generators of vehicle trips. Arterials provide
direct, relatively high speed service for longer trips and large traffic volumes. Mobility is emphasized,
and access is often limited. Arterial roads typically carry higher traffic volumes and a wider variety of
traffic types at higher speeds than collector or local roadways. Corkscrew Road is a two lane road and is
classified as an arterial on Map 3B of the Lee Plan map series, and is also designated as a Second Order
Facility on the Collier County Metropolitan Planning Organization on the Collier -Lee Bi- County
Transportation Network (Highways Component) map dated March 5, 2007.
Background
Policy 7.1.3 of the Lee Plan requires that 'industrial land uses must be located in areas appropriate to
their special needs and constraints, including but not limited to, considerations of .... access by truck, air,
deep water and rail...' Policy 7.1.9 states that 'industrial development will not be permitted if it allows
industrial traffic to travel through predominantly residential areas.' Because the Corkscrew Road
Excavation project is accessed solely by an arterial roadway, which by definition is designed to carry high
volumes of traffic at higher speeds, it is fair to state that the truck trips traveling to and from the
operation will not travel through predominantly residential neighborhoods. The limited residential
neighborhoods /residential uses in the Southeast Lee County area are typically accessed by privately -
owned local roadways, most of which are unpaved and characteristic of the rural, agricultural
development in the area.
There is a heavy concentration of dump trucks and concrete batch plants in this part of the County
because this location is where a great deal of the limerock resources exists —it also occurs in the
northeast and northwest portions of Lee County. However, Southeast Lee County has historically been
the main source of limerock in the region. The area is sparsely populated compared to the rest of the
County, and there are large agricultural uses in the area. The relative lack of population in the area has
provided some justification in the past for allowing excavation activities to be located in this area; Lee
County has indicated that it would preserve this area from incursions by urban uses. Due to the rural
nature of the area, there are only two major roadways serving the area: Alico Road and Corkscrew
Road.
I Ia
Accident Analysis
A review of the 2005 and 2006 crash reports revealed that the vast majority of accidents in Lee County
occur at the intersections of 1 -75 and US 41, the County's major north -south corridors.
2005 Lee County Worst Intersections for Crashes
1
1 -75 & Corkscrew Road
2
US 41 & Cypress Lake Dr /Daniels
3
1 -75 & Daniels Pkwy
4
US 41 & Gladiolus /Six Mile
5
1 -75 & Colonial Blvd
6
US 41 & College Pkwy /Woodland
7
Del Prado & Veterans
8
1 -75 & Alico Road
9
SR 82 & Colonial /Lee
10
1 -75 & Bonita Beach Road
11
Colonial Blvd & Ortiz /Six Mile Cypress
12
US 41 & Pondella Rd
13
US 41 & Pine Island Rd
14
US 41 & Hancock Bridge Pkwy
15
Gladiolus Dr. & Summerlin
16
Daniels Pkwy & Six Mile Cypress
17
US 41 & Bonita Beach Rd
18
Old US 41 & Terry St.
19
1 -75 & Palm Beach Blvd.
20
Colonial Blvd & Metro Pkwy
21
US 41 & Colonial Blvd
22
US 41 & Alico Road
23
College Pkwy & Summerlin Rd
24
US 41 & Boyscout /Fowler
25
College Pkwy & Winkler
Those intersections in the chart above in boldface font indicate interstate exchanges. Lee County DOT
data rated the 2005 data by number of crashes; six of the 25 involved 1 -75 and 10 of the 25 involved US
41 (not Old US 41). In 2005, 64% of the most dangerous intersections involved 1 -75 or US 41.
►,'d
Lee County DOT revised their reporting methods somewhat for 2006, rating the intersections by crash
rate rather than by sheer number of incidents. This methodology took into consideration the volume of
traffic and calculated an accident rate, revealing the following intersections as the 25 most dangerous
for 2006:
2 1 P a g e
Corkscrew Road Excavation (M DA 05161)
May 11, 2009
I
nn
2006 Lee County Worst Intersections for Crashes
1 SR 82 & Gunnery Road
2 College Pkwy & McGregor
3 Corkscrew Rd & Ben Hill Griffin
4 US 41 & Pondella
5 Buckingham & Cemetary
6 Lee Blvd & Gunnery Rd
7 Corkscrew Rd & Three Oaks Pkwy
8 1 -75 & Corkscrew Rd
9 US 41 & Daniels /Cypress Lake
10 SR 82 & Colonial Blvd
11 US 41 & Gladiolus /Six Mile
12 Del Prado & Veterans Pkwy
13 US 41 & College /Woodland
14 SR 82 & Gateway Blvd.
15 US 41 & Pine Island Rd
16 Colonial Blvd. & Ortiz /Six Mile
17 US 41 & Alico Rd
18 Pine Island Rd & Woodward Ave
19 Ortiz Ave & Ballard Rd
20 McGregor Blvd & Summerlin
21 Cypress Lake & Summerlin
22 Metro Pkwy & Crystal
23 Cypress Lake & McGregor
24 US 41 & Bonita Beach Rd
25 Colonial Blvd & Summerlin
The list of 2005 and 2006 most dangerous intersections were then cross - referenced, revealing the
locations of the most dangerous intersections for the two year period. Because the methodologies for
the 2005 list varied from the 2006 list, all 1 -75 intersections were disregarded, and only arterial and
collector intersections were evaluated. This time frame was specifically analyzed, as it was during this
time the traffic volumes were the highest, and local construction was at its peak. The following
intersections were than ranked on a scale of 1 to 10, 1 having the highest incidence of accidents.
2005 2006
rank rank
US 41 & Pondella
7 1
US 41 & Daniels /Cypress Lake
1 2
US 41 & Gladiolus /Six Mile
2 3
SR 82 & Colonial Blvd
5 4
.-, Del Prado & Veterans Pkwy
4 5
US 41 & College /Woodland
3 6
3 I P a g e
Corkscrew Road Excavation (MDA 05161)
May 11, 2009
I I a
US 41 & Pine Island Rd 8 7
Colonial Blvd. & Ortiz /Six Mile 6 8
US 41 & Alico Rd 10 9
US 41 & Bonita Beach Rd 9 10
US 41 intersections are among the most dangerous in Lee County; US 41 intersections ranked the top
four most dangerous intersections for both 2005 and 2006. Note that the intersection of US 41 & Alico
Road rated 10th for 2005 and 9th for 2006, and that US 41 & Bonita Beach Road was rated 9th in 2005 and
10th in 2006. Attention is directed at these two intersections due to their proximity to mining
operations, as it should be noted that 1 -75 is the preferred route by heavy truck operators to travel
north or south. However, both of these interchanges have substantial commercial and retail
development near the interchanges as well.
Composition of Traffic on Alico and Corkscrew Roads
Lee County DOT prepared a memo for a zoning case near the Alico Road corridor, and in it, stated that
"large trucks comprised the majority of traffic on Alico Road. The majority of large trucks on Alico Road
appear to be dump trucks traveling to and from mining uses." The Lee County Truck Impact Evaluation
report prepared for Lee County by David Douglas Associates, Inc. supports this assertion. This is due, in
part, to the fact that: 1) the Alico Road corridor is the historical mining corridor in Lee County, as this is
where the resource exists; 2) the nearest access to 1 -75 is via the Alico Road interchange; and 3) zoning
conditions for mines along Corkscrew Road often required that trucks utilize the Alico Road to access I-
75 rather than Corkscrew Road.
Source:
2008 Average % of Trucks for Alico & Corkscrew Roads
Roadway
Alico Rd
Link
E of Ben Hill Griffin
Feb.
52.93%
March
54.20%
April
55.94%
3 -month
avg.
54.36%
Alico Rd
W of Green Meadow Rd
54.52%
51.25%
56.46%
54.08%
Alico Rd
N of Corkscrew
43.09%
38.47%
48.13%
43.23%
Corkscrew Rd
I E of Ben Hill Griffin
10.34%
11.15%
10.09%
10.53%
Corkscrew Rd
W of Alico
23.88%
21.20%
24.41%
23.16%
Corkscrew Rd
W of County Line Rd
12.08%
12.97%
17.22%
14.09%
Lee Countv Truck
Impact Evaluation (July 2009)
Crashes on Alico and Corkscrew Roads
Realizing that up to an average of 54 percent of traffic on Alico Road and up to 23 percent of traffic on
Corkscrew Road is comprised of large trucks, an analysis of the percentage of accidents involving large
trucks was undertaken.
2004 -2006
When all accident reports from the 2004 -2006 for the area east of 1 -75 on Alico and Corkscrew
Roads were reviewed, 189 accidents were found, 22.7 percent of which involved a heavy truck.
This data indicates that one was less likely to be involved in an incident involving a heavy truck
(i.e., dump truck or cement mixer) than to be involved in a single vehicle accident or an accident
involving another passenger vehicle. This is significant when viewed in light County Staffs
4 1 P a g e
Corkscrew Road Excavation (MDA 05161)
May 11, 2009
assertion that the "large trucks comprised the majority of traffic on Alico Road." If ±50 percent
of the traffic on Alico Road is comprised of heavy trucks, one could assume that up to 50 percent
of the number of accidents would involve heavy trucks. However, only 25 percent of the
accidents on the roadway involved heavy trucks; statistically, heavy trucks were less likely to be
involved in a crash than were passenger vehicles. Of those accidents which did involve heavy
trucks, 41 percent involved a passenger vehicle, 37 percent were single vehicle incidents, and 22
percent involved more than one heavy truck.
Simple laws of physics would have one conclude that accidents involving heavy trucks and
passenger vehicles should result in a higher number of injury or fatal accidents. Interestingly,
only nine out of 33 (27 %) accidents involving heavy trucks resulted in injuries or possible
injuries. In comparison, 22 out of 77 (28 %) accidents not involving heavy trucks resulted in
injury, and in addition to those accidents with injuries, three out of 77 accidents not involving
heavy trucks were fatal. There were no fatal accidents in which a heavy truck was involved
during this time frame. The number of accidents involving heavy trucks which resulted in either
injuries or fatalities on Corkscrew and Alico Roads is considerably lower than the state -wide
average.
Accidents with Injuries (2004 -2006)
M
50
OW
�..,
40
`
30::
M Accidents with no Heavy Truck a Accidents with Heavy Truck
Source: Florida Traffic Crash Reports for Corkscrew Road 2004 -2006
State -wide data indicates that the 1 percent of passenger vehicle accidents result in fatalities in both
2005 and 2006, but 67 -69 percent of passenger vehicle accidents resulted in injuries. By comparison, 2-
3 percent of accidents involving medium, heavy or tractor trucks resulted in fatalities, but only 58 -59
percent of those accidents resulted in injuries. State -wide, the percentage of accidents involving large
trucks which result in injury or fatality is nearly identical to that of buses, and very similar to that of
accidents which involve recreational vehicles (RVs).
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110
State -wide Injuries and Fatalities Crash Data by vehicle type (2005 -2006)
Source: Traffic Crash Statistics Report 2005, Florida Highway Safety and Motor Vehicles
When individual intersections are analyzed to determine the number of accidents involving passenger
vehicles and heavy trucks, every intersection had a higher incidence of automobile accidents than heavy
truck accidents with the exception of Alico Road & Airport Haul Road and Alico Road & the entrance at
Florida Rock. The intersection with the highest number of accidents is Corkscrew Road and Ben Hill
Griffin where 90 percent of the accidents did not involve a heavy truck. At the intersection of Alico Road
and Ben Hill Griffin (where upwards of 50 percent of the traffic is heavy truck traffic), only eight of 20
accidents east of the intersection involved heavy trucks. Thus, in 2004 — 2006, one was no more likely
to be involved in a traffic accident involving a dump truck or cement mixer than one was to be involved
in an accident with a regular passenger vehicle.
2004 -2008 Crash Data by Vehicle Type
Other, none, unknown
v
CL
0 10 20 30 40 50 60
Crashes
Source: CDMS Crash Data Summary Report, Corkscrew Road 2004 -2008 (Lee County DOT)
CDMS Crash Data Summary Report, Alico Road 2004 -2008 (Lee County DOT)
Corkscrew Road Excavation (MDA 05161) g
May 11, 2009
Injuries
2006 2005
Fatalities
2005 2006
Auto, passenger van, light truck
67%
69%
1%
1%
Medium, heavy, or tractor -truck
58%
59%
2%
3%
RV
52%
56%
3%
3%
Bus
54%
58%
1%
1%
Bike, moped, motorcycle
90%
91%
5%
4%
Other, unknown
70%
68%
1%
1%
Source: Traffic Crash Statistics Report 2005, Florida Highway Safety and Motor Vehicles
When individual intersections are analyzed to determine the number of accidents involving passenger
vehicles and heavy trucks, every intersection had a higher incidence of automobile accidents than heavy
truck accidents with the exception of Alico Road & Airport Haul Road and Alico Road & the entrance at
Florida Rock. The intersection with the highest number of accidents is Corkscrew Road and Ben Hill
Griffin where 90 percent of the accidents did not involve a heavy truck. At the intersection of Alico Road
and Ben Hill Griffin (where upwards of 50 percent of the traffic is heavy truck traffic), only eight of 20
accidents east of the intersection involved heavy trucks. Thus, in 2004 — 2006, one was no more likely
to be involved in a traffic accident involving a dump truck or cement mixer than one was to be involved
in an accident with a regular passenger vehicle.
2004 -2008 Crash Data by Vehicle Type
Other, none, unknown
v
CL
0 10 20 30 40 50 60
Crashes
Source: CDMS Crash Data Summary Report, Corkscrew Road 2004 -2008 (Lee County DOT)
CDMS Crash Data Summary Report, Alico Road 2004 -2008 (Lee County DOT)
Corkscrew Road Excavation (MDA 05161) g
May 11, 2009
11D
Accidents within 2600' of Intersection (2004 -06)
Corkscrew & Wildcat Run
Corkscrew & Stoneybrook
Corkscrew & Bella Terra
Corkscrew & Miromar
Corkscrew & Ben Hill Griffin
Alico & Treeline
Alico & Mallard
Alico & Florida Rock
Alico & Devore
Alico & Corkscrew
Alico & Ben Hill Griffin
Alico & Airport Haul Road
0 10 20 30 40 50 60
• With Heavy Trucks
• Passenger Vehicle Only
2007 -2008 Corkscrew Road
Lee County DOT traffic accident data reveals no major incidence of accidents involving heavy
trucks such as cement mixers or dump trucks from 2007 — 2008 on Corkscrew Road. During this
time period there was one fatality on the Corkscrew Road which involved a single automobile.
Analysis of the At Fault Vehicle Crash distribution indicates that of the four incidents involving
heavy trucks:
• no citations of aggressive driving listed as a contributing factor
• lane departure was listed as a contributing factor in two cases
• there were no associated fatalities
• there was one injury
By contrast, of the accidents involving passenger vehicles (automobile, pickup truck, passenger
van):
• there were three instances of aggressive driving
• lane departure was listed as a contributing factor in 21 cases
• there was one fatality
• there were 15 injuries
Looking only at data retrieved from accident reports during the 2007 -2008 timeframe, 35
accidents occurred, only two of which involved heavy trucks. Of those two accidents, the first
7 1 P a e
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110
one involved the driver of a passenger vehicle who was at fault (he swerved into the truck
driver's lane), and the other involved two dump trucks where one rear -ended the other and
there were no injuries. Five of the 35 accidents involved alcohol, one involved an ATV and two
involved animals. Out of all 35 reports, 30 of the accidents were single - vehicle. The data
indicate that during this time period, motorists on Corkscrew Road or Alico Road were more
likely to be involved in a single - vehicle crash than a crash involving a heavy truck, and more
likely to be involved in an accident as a result of an animal than to be involved in an accident
involving a dump truck.
This data analysis is consistent with testimony given by another traffic expert regarding the
incidences of traffic accidents on Corkscrew Road between 2003 and 2006. At the Estero IPD
hearing testimony he stated that of 153 accidents on Corkscrew Road between Westwind Mine
and 1 -75, passenger cars accounted for 85 percent of the accidents while trucks accounted for 15
percent. (Banks, Transcript 15, pages 117 -118 of Estero IPD, DC12006- 00007).
.• of .-
Alcohol involved
Accident Analysis: Corkscrew Road
Dump truck
0 of 35 0.00%
2007- 2008
5 of 35
14.28%
Animal involved
0 of 35
0.00%
2 of 35
5.71%
ATV involved
0 of 35
0.00%
1 of 35
2.86%
Fatality
0 of 35
0.00%
1 of 35
2.86%
Dump truck involved
2 of 35
5.71%
2 of 35
5.71%
Injuries
0 of 35
0.00%
8 of 35
22.86%
Wet road condition
0 of 35
0.00%
4 of 35
11.43%
Night /dusk /dawn
0 of 35
0.00%
18 of 35
51.43%
Ran in ditch /culvert
0 of 35
0.00%
14 of 35
40.00%
Rear -end collision
1 of 35
2.86%
3 of 35
8.57%
Single Vehicle Accident
0 of 35
0.00 %
30 of 35
85.71%
Two Vehicle Accident
2 of 35
5.71%
5 of 35
14.28%
An analysis of accidents occurring within 2000' of an intersection along Corkscrew Road during
2007 -2008 reveals that passenger vehicles are more likely to be involved in an accident at an
intersection than is a heavy truck. Of the six intersections reviewed, only two of 29 intersection
accidents (6 percent) involved a heavy truck.
Fatalities
Lee County DOT created a map which indicates the number of fatalities on Lee County roadways from
2002 — 2004. Consistent with the data regarding the volume of traffic and high incidence of accidents, I-
75 and US 41 were ranked as most deadly, followed by SR 82, SR 78 and SR 80. 1 -75 and US 41 are the
major north -south corridors in the county, and SR 82, SR 78 and SR 80 are the major east -west corridors
with high traffic volumes. All of these roadways are classified as arterials, with the exception being 1 -75
which is an interstate.
8 1 P a g e
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11D'
Roadway
2002 -2004 Lee County Roadway Fatalities
From
To
# fatalities
1 -75
Charlotte County line
Collier Co. line
31
US 41
Charlotte County line
Collier Co. line
13
SR 82
US 41
Hendry Co. line
12
SR 78
Stringfellow Road
Alva Bridge
12
SR 80
US 41
Hendry Co. line
11
Veterans /Colonial Pkwy
Cape Coral Pkwy
SR 82
8
McGregor Blvd
US 41
Shell Point Blvd.
8
Summerlin Road
Colonial Blvd
Pine Ridge
4
Corkscrew Road
US 41
Hendry Co. line
2
Treeline Blvd.
Daniels Pkwy
Corkscrew Rd
1
Alico Road
US 41
Corkscrew Rd
1
Source: Lee County Fatal Crashes 2002 -2004 (Lee County DOT )
Further analysis was undertaken to determine the ratio of the number traffic fatalities to the roadway
length. 1 -75 again was rated at the top with 0.92 fatalities per mile, followed by Veterans
Parkway /Colonial Boulevard second with 0.73 fatalities per mile, and McGregor Boulevard third with
0.62 fatalities per mile. By comparison, one fatal accident occurred on Alico Road and two fatal
accidents occurred on Corkscrew Road during the same time period, resulting in an incidence of 0.09
and 0.13 fatalities per mile, respectively. Alico and Corkscrew Roads have fewer fatalities per mile than
does McGregor Boulevard or Summerlin Road.
1.00
0.90
0.80
0.70
0.60
0.50
0.40
0.30
0.20
0.10
0.00
Fatalities per mile
qO as p7 10. as Ja. as
�o
No
a10 l �� CP ��
e�
-4-- Fatalities per mile
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Corkscrew Road Excavation (MDA 05161)
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A review of crash data from Lee County DOT reveals that from 2004 -2008 there were four fatalities
along Alico and Corkscrew Roads, three of which were at or near the intersection of Corkscrew and Alico
Road. In five years of reporting (part of which coincides with the time when the construction industry
was at its peak) on a roadway on which by all accounts the majority the traffic is comprised of heavy
trucks, the number of fatalities as a result of heavy trucks is zero (which is below the state average
[percentage] for accidents involving heavy trucks). However, four fatal crashes did involve passenger
vehicles. Furthermore, from 2004 -2008, a higher percentage of passenger vehicles was cited as being
the at -fault vehicle in a crash than was medium or heavy trucks.
Alico Road Crashes -
At Fault Vehicle Type
Other, 2004 -2008
none,
unknown
17%
Medium -
Passenger
Heavy vehicle
truck 53 0
30%
Corkscrew Road Crashes -
At Fault Vehicle Type
2004 -2008
Source: CDMS Crash Data Summary Report, Corkscrew Road 2004 -2008 (Lee County DOT)
CDMS Crash Data Summary Report, Alico Road 2004 -2008 (Lee County DOT)
State statistics
In order to provide additional supporting evidence of the data provided by local crash reports, data from
the Florida Highway Safety and Motor Vehicles website' was also analyzed. This data revealed County-
wide crash data, and indicated that in 2006, passenger cars, vans and light trucks comprised 89.6% of all
crashes state -wide. Bicycles, motorcycles, mopeds, ATVs, trains, low speed vehicles, 'other or
unknown', and RVs made up 5.6% of the total accidents. Buses made up less than 1% of all crashes.
According to the state statistics, in Lee County the average number of annual total accidents from 2002-
2006 was 29,293. Of those accidents, an average of 9.44% involved commercial motor vehicles (CMV),
and 2.6% involved fatalities. Only 0.25% of all of the fatality accidents involved a CMV. (A CMV is
defined as having a GVW of 26,001 Ibs or more, designed to transport more than 15 persons, or
transports hazardous materials.) By comparison, again 22.7% of the accidents east of 1 -75 on Corkscrew
or Alico Roads involved a heavy truck. And while this number is more than double the average number
of accidents involving heavy trucks on a county -wide basis, it is important to keep in perspective the fact
that Alico and Corkscrew Roads are unique in that nearly 30 -50% of the traffic on these facilities consists
of heavy trucks.
Corkscrew Road Excavation (MDA 05161) 101Page
May 11, 2009
Other,
none,
Medium-
unknown
Heavy
17%
truck
Passenger
8%
vehicle
75%
Source: CDMS Crash Data Summary Report, Corkscrew Road 2004 -2008 (Lee County DOT)
CDMS Crash Data Summary Report, Alico Road 2004 -2008 (Lee County DOT)
State statistics
In order to provide additional supporting evidence of the data provided by local crash reports, data from
the Florida Highway Safety and Motor Vehicles website' was also analyzed. This data revealed County-
wide crash data, and indicated that in 2006, passenger cars, vans and light trucks comprised 89.6% of all
crashes state -wide. Bicycles, motorcycles, mopeds, ATVs, trains, low speed vehicles, 'other or
unknown', and RVs made up 5.6% of the total accidents. Buses made up less than 1% of all crashes.
According to the state statistics, in Lee County the average number of annual total accidents from 2002-
2006 was 29,293. Of those accidents, an average of 9.44% involved commercial motor vehicles (CMV),
and 2.6% involved fatalities. Only 0.25% of all of the fatality accidents involved a CMV. (A CMV is
defined as having a GVW of 26,001 Ibs or more, designed to transport more than 15 persons, or
transports hazardous materials.) By comparison, again 22.7% of the accidents east of 1 -75 on Corkscrew
or Alico Roads involved a heavy truck. And while this number is more than double the average number
of accidents involving heavy trucks on a county -wide basis, it is important to keep in perspective the fact
that Alico and Corkscrew Roads are unique in that nearly 30 -50% of the traffic on these facilities consists
of heavy trucks.
Corkscrew Road Excavation (MDA 05161) 101Page
May 11, 2009
State -wide, in 2006 the number of light trucks listed on the contributing causes of accidents was
invariably higher than for medium, heavy or tractor trailer trucks. Light trucks were involved with more
accidents than were the heavier trucks combined (light trucks = 69,729; medium, heavy and tractor
trucks = 15,317). According to the Florida traffic crash report, 'light trucks' are pickup trucks or trucks
with 2 or 4 rear tires, medium trucks have 4 rear tires, and heavy trucks have 2 or more rear axles. In
addition, careless driving was listed as the contributing cause of 71,866 accidents state -wide. Of those,
15,072 were attributed to light trucks, which is more than 5 times the number of medium, heavy and
tractor trucks combined (2,966 total combined). In general, a similar trend is seen for all contributing
causes of all the accidents from 2004 -2006.
Below are additional interesting facts from the state's traffic data:
In 2006, motorcycles were involved in almost twice as many accidents state -wide than
were medium or heavy trucks. (9,259 motorcycles, 5,150 medium trucks, 5,189 heavy
trucks).
In 2005, passenger vehicles (cars, light trucks and vans) accounted for 88% of the total
number of vehicles involved in fatal crashes state -wide. Medium trucks and heavy
trucks accounted for 3% and 4 %, respectively. Tractor - trailer trucks also accounted for
4% of the total.
In Lee County, CMV- related crashes ranged from 8.18% - 10.66% during the five year
time frame. Less than one -half of one percent (0.5 %) of all crashes resulting in a fatality
involved a CMV. (Note: none of the accidents on Corkscrew or Alico Roads east of 1 -75
involved a fatality from 2004 — 2008).
Lee County Crash Statistics
2002-2006
Lee County - Total Crashes
2002
5634
2003
5963
2004
5834
2005
6237
2006
5625
5 year fatality history
71
121
108
150
121
Percentage
1.26%
2.03%
1.85%
2.41%
2.15%
5 year injury history
5096
5571
5240
5686
4698
Percentage
90.45%
93.43%
89.82%
91.17%
83.52%
5 year CMV related crash history
461
528
537
665
573
Percentage
8.18%
8.85%
9.20%
10.66%
10.19%
5 year CMV related fatality
history
11
13
12
23
13
Percentage
0.20%
0.22%
0.21%
0.37%
0.23%
5 year injury history
5096
5571
5240
5686
4698
5 year CMV related injury history
392
468
474
650
414
Percentage
7.69%
8.40%
9.05%
11.43%
___N Source: Traffic Crash Statistics Report 2006, Florida Highway Safety and Motor Vehicles
11�Pae
Corkscrew Road Excavation (MDA 05161) g
May 11, 2009
2006 Florida Crash Data, Contributing Causes
Conclusion
The incidence of accidents involving dump trucks /cement mixers and passenger vehicles is
proportionately lower than the number of accidents involving two passenger vehicles. Both Alico Road
and Corkscrew Roads which are heavily utilized by dump trucks and cement mixer trucks have lower
rates of fatality accidents than Summerlin Road, Colonial Boulevard, and McGregor Boulevard, and also
have a fatality rate of crashes involving heavy trucks of zero; the state average of accidents involving
heavy trucks was 1% in 2005 and 2006.
Vehicle crashes on Corkscrew Road are more likely to not involve a heavy truck than to involve a heavy
truck. More accidents occurred at Corkscrew Road and Miromar Mall (which is presumably mostly
passenger vehicle traffic) than occurred at the intersection of Alico Road and Ben Hill Griffin where the
majority of traffic is heavy trucks.
Corkscrew Road Excavation (MDA 05161) 121 Page
May 11, 2009
Total
# Light trucks
# Medium
truck
#Heavy
truck
#Truck
tractor
Careless driving
71886
15072
986
1013
967
Failed /Yield ROW
33705
5920
344
257
19S
Improper backing
2804
607
114
147
78
Improper lane change
6026
964
132
189
254
Improper turn
6290
1078
103
117
129
Alcohol - under influence
7629
2035
62
10
4
Drugs - under influence
770
187
5
1
7
Alcohol & drugs - under
1266
326
6
1
1
influence
Followed too closely
7736
1569
114
105
71
Disregarded traffic signal
1386
1360
90
72
45
Exceeded safe speed limit
5252
1051
41
58
72
Exceeded stated speed limit
3252
604
26
23
15
Disregarded stop sign
1977
401
55
79
52
Failed to maintain
1031
204
8
15
12
equipment
Improper passing
1670
394
12
17
18
-- Drove left of center
1561
286
9
10
4
Obstructing traffic
504
94
10
14
16
Improper load
228
105
28
24
29
Disregard other traffic
664
123
9
4
6
control
Driving wrong side /way
1088
143
10
6
2
Fleeing police
519
93
1
0
0
Vehicle modified
29
7
1
0
0
Driver distraction
1851
405
27
13
11
All other
30423
5203
455
493
451
Source: Tables 25, Traffic Crash Statistics
Report 2006, Florida Highway Safety and Motor Vehicles
Conclusion
The incidence of accidents involving dump trucks /cement mixers and passenger vehicles is
proportionately lower than the number of accidents involving two passenger vehicles. Both Alico Road
and Corkscrew Roads which are heavily utilized by dump trucks and cement mixer trucks have lower
rates of fatality accidents than Summerlin Road, Colonial Boulevard, and McGregor Boulevard, and also
have a fatality rate of crashes involving heavy trucks of zero; the state average of accidents involving
heavy trucks was 1% in 2005 and 2006.
Vehicle crashes on Corkscrew Road are more likely to not involve a heavy truck than to involve a heavy
truck. More accidents occurred at Corkscrew Road and Miromar Mall (which is presumably mostly
passenger vehicle traffic) than occurred at the intersection of Alico Road and Ben Hill Griffin where the
majority of traffic is heavy trucks.
Corkscrew Road Excavation (MDA 05161) 121 Page
May 11, 2009
Crashes Involving Heavy Trucks (2004 -2006)
Corkscrew
& Alico
State County Roads
2004 20443 537 10
of accidents with injuries 88.30% 88.30% 20.00%
of accidents with fatalities 2.28% 2.23% 0.00%
2005
22804
665
16
of accidents with injuries
84.30%
97.70%
6.30%
of accidents with fatalities
2.35%
3.46%
0.00%
2006
20774
573
17
of accidents with injuries
81.55%
72.23%
35.29%
of accidents with fatalities
2.10%
2.27%
0.00%
Sources: Traffic Crash Statistics Report 2005, Florida Highway Safety and Motor Vehicles and Lee County accident reports
This analysis concludes that the number of heavy trucks traveling on local roadways does not result in an
y increase in the rate of injury or fatal accidents. Despite the perception that heavy trucks such as dump
trucks make the area roadways more dangerous, empirical data simply does not support this
assumption. Utilizing state data and the County's accident reports, less than 3 percent of all accidents
in Lee County involving heavy trucks occur on Alico and Corkscrew Roads. Further, when compared to
state and county crash accident incidents overall, Corkscrew and Alico Roads have considerably better
safety records.
Attachments
A. Map - Lee County Fatal Crashes 2002 -2004
B. Map — Lee County 2005 Traffic Crashes
C. CDMS Crash Data Summary, Corkscrew Road 2004 -2008
D. CDMS Crash Data Summary, Alico Road 2004 -2008
'http://www.flhsmv.gov/reoorts/crash facts.html
Corkscrew Road Excavation (MDA 05161) 13 1 P a g e
May 11, 2009
w
11D
0
OFFICE OF THE HEARING EXAMINER, LEE COUNTY FLORIDA
HEARING EXAMINER RECOMMENDATION
VOLUME 1
RECOMMENDATION
for
DCI2006 -00026
RESOURCE CONSERVATION HOLDINGS, LLC,
in reference to CORKSCREW EXCAVATION
OFFICE OF THE HEARING EXAMINER, LEE COUNTY; FLORIDA
HEARING EXAMINER RECOMMENDATION
HEARING DATES:
SITE VISIT:
WRITTEN SUBMISSIONS:
i. APPLICATION:
11D
MAY 27, 2009, MAY 28, 2009, MAY 29, 2009,
JUNE 4, 2009, JUNE 5, 2009, AUGUST 19, 2009
AUGUST 20, 2009, AUGUST 21, 2009, AUGUST 26, 2009
SEPTEMBER 25, 2009, SEPTEMBER 29, 2009, SEPTEMBER 30,
2009, OCTOBER 2, 2009, OCTOBER 6, 2009, OCTOBER 7, 2009
OCTOBER 13, 2009, OCTOBER 14, 2009, OCTOBER 20, 2009,
OCTOBER 27, 2009, OCTOBER 30, 2009, NOVEMBER 3, 2009,
NOVEMBER 6, 2009
OCTOBER 12, 2009 (BLASTING DEMONSTRATION),
NOVEMBER 5, 2009
AUGUST 7, 2009; AUGUST 14, 2009, NOVEMBER 13, 2009
AND NOVEMBER 20, 2009
This matter came before the Lee County Hearing Examiner as an Application for a Rezoning
to an Industrial Planned Development (IPD) pursuant to Lee County Land Development Code
(LDC).
Filed by RESOURCE CONSERVATION HOLDINGS, LLC, 1700 Corkscrew Road, Estero,
Florida 33928 (Applicant/Owner); MORRIS DEPEW ASSOCIATES, INC., c/o DAVID
DEPEW, 2914 Cleveland Avenue, Fort Myers, Florida 33901; HOPPING, GREEN & SAMS,
c/o GARY SAMS, ESQUIRE and SUSAN STEPHENS, ESQUIRE, 123 South Calhoun Street,
Tallahassee, Florida 32301; CDM, INC., c/o KIRK MARTIN, 12501 World Plaza Lane, Fort
Myers, Florida 33907; W. DEXTER BENDER & ASSOCIATES, cto PAUL OWEN, 2052
Virginia Avenue, Fort Myers, Florida 33901; DRAPER TECHNOLOGIES, c% PETER
PELLERITO, 17595 S. Tamiami Trail, Suite 102, Fort Myers, Florida 33908 (Agents).
Request is to rezone 1,365.5± acres from Agricultural (AG -2) to Industrial Planned
Development (IPD) to allow the use of an Excavation, mining operation (Construction
Materials Mining Operation) with a proposed depth of 110 feet below the wet season water
table AND sod farming. Dewatering is not proposed. The proposed use will, if permitted,
allow blasting activities. The Applicant has also requested approval of a General Mining
Permit.
The subject property is located at 16871, 17501, 18701 and 18901 Corkscrew Road, SE Lee
County Planning Community, Sections 23 and 24, Township 46 South, Range 26 East, and
Section 19, Township 46 South, Range 27 East, Lee County, Florida (District #5).
II. STAFF REPORT AND RECOMMENDATION: DENIAL
The Department of Community Development Staff Report was prepared by Alvin Block. The
Staff Report is incorporated herein by this reference.
Case DC12006 -00026 07- Apr -10 -
n Ill. RECOMMENDATION OF HEARING EXAMINER•
11D
The undersigned Lee County Hearing Examiner recommends that the Lee County Board of
County Commissioners APPROVE the Applicant's request for a rezoning from AG -2 to IPD
to allow the use of an Excavation, mining operation with a proposed depth of 110 feet below
the wet season water table for the real estate described in Section IX. Legal Description
WITH THE FOLLOWING CONDITIONS:
A. CONDITIONS:
Conditions to this recommendation are contained in the Appendix attached hereto, which
is incorporated herein by reference.
B. DEVIATIONS:
NONE
IV. HEARING EXAMINER D19CUS,SION•
SYNOPSIS
This is a request to rezone a 1,365.5 -acre parcel of land, located on Corkscrew Road, from
an Agricultural (AG -2) zoning district to an Industrial Planned Development (IPD). Approval
of this application will result in the development of a lime rock or aggregate mine. At the end
of the mining activity, a 770 -acre lake will have been created with a maximum depth of 110
feet. Additional accessory uses are also requested, which include administrative offices,
stone, glass and clay products, Groups 11 and III, repair and maintenance facilities.
A hearing was conducted on the request before the undersigned Hearing Examiner, in
accordance with an Order issued by Circuit Judge Joseph C. Fuller, dated February 12,
2009. Testimony was taken over a period of 22 days, spread over seven months. The final
arguments took place on November 6, 2009. The record comprises approximately 5,000
pages of testimony and argument, including testimony from approximately 36 expert
witnesses, 59 members of the public that spoke before this Hearing Examiner, and eight
others submitted comments without testifying. Approximately, 228 exhibits are part of the
record, as well as, six separate memorandums of law, and responses thereto.
Based on the testimony of those witnesses, the exhibits entered into evidence, legal
memorandums and the arguments of the Attorneys for the County Staff, Applicant, members
of the public and other interested parties, the Hearing Examinerfound that a preponderance
of the evidence required him to recommend to the Lee County Board of County
Commissioners, that the Applicant's request to rezone the subject property should be
approved, with conditions.
Introduction
This is a request to rezone a 1,365.5 +/- acre parcel of land, located at 16871, 17501,18701,
and 18901 Corkscrew Road, from an Agricultural (AG -2) zoning district to an Industrial
Planned Development (IPD). The property has a frontage of 10,439 feet on the north side
Case DC12006 -00026 Page 2 of 70 07- Apr -10 -
110
10� of Corkscrew Road. It is approximately 6.5 miles east of Interstate 75, and 1.5 miles east of
the intersection of Corkscrew and Alico roads. It is also 2.5 miles west of the existing
WestWind Mine, which was approved for mining uses in 2001, and 3.5 miles west of what
was the proposed Estero Industrial Planned Development Mine, which was denied for mine
uses, in 2006. The Schwab 640 Mine, a proposed Industrial Planned Development, is
directly south of the property, and was denied for mine uses, in 2001. The subject property
is comprised of 91.3 percent uplands (1,247.5 acres), and 8.7 percent wetlands (118 acres).
It is within both the Density Reduction /Ground Water (DR/GR) Resources and Wetlands
Future Land Use Plan Designations,' and the Southeast Lee County Planning Community.2
It is currently being used for cattle grazing and sod farming.
Approval of this application will result in the development of a lime rock or aggregate mine.
At the end of the mining activity, a 770 -acre fake will have been created, with a maximum
depth of 110 feet. Additional accessory uses are also requested, to include administrative
offices, stone, glass and clay products, Groups II and III, repair and maintenance facilities.
Lee County Comprehensive Plan Policy 1.4.5:
The Density Reduction/Groundwater Resource (DR /GR) areas include upland areas that provide substantial recharge
to aquifers most suitable for future wellfield development. These areas also are the most favorable locations for physical
withdrawal of waterfrom those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas
must be compatfNe with maintaining surface and groundwater levels at their historic levels. Permitted land uses include
n agriculture, natural resource extraction and related facilities, conservation uses, publicly -owned gun range facilities,
private recreation facilities, and residential uses at a maximum density of one dwelling unit per ten acres (1 du /10 acres).
Individual residential parcels may contain up to two acres of Wetlands without losing the right to have a dwelling unit,
provided that no alterations are made to those wetland areas. Private Recreational Facilities may be permitted in
accordance with the site locational requirements and design standards, as further defined in Goal 16. No Private
recreational facilities may occur within the DR/GR land use category without a rezoning to an appropriate planned
development zoning category, and compliance with the Private Recreation Facilities performance standards, contained
in Goal 16 of the Lee Plan.
Lee County Comprehensive Plan Objective 1.5:
WETLANDS. Designate on the Future Land Use Map those lands that are identified as Wetlands in accordance with F.S.
373.019(17) through the use of the unified state delineation methodology described in FAC Chapter 17 -340, as ratified
and amended in F.S. 373.4211.
Lee County Comprehensive Plan Policy 1.5.1:
Permitted land uses in Wetlands consist of very low density residential uses and recreational uses that will not adversely
affect the ecological functions of wetlands. All development in Wetlands must be consistent with Goal 114 of this plan.
The maximum density is one dwelling unit per twenty acres (1 du/20 acre) except as otherwise provided in Table 1(a)
and Chapter XIII of this plan.
Lee County Comprehensive Plan, Vision Statement, Section 18:
Southeast Lee County - As the name implies, this Community is located in the southeast area of Lee County. South of
SR 82, north of Bonita Beach Road, east of 1 -75 (excluding areas in the San Carlos Park/Island Park/Estero Corkscrew
Road and Gateway /Southwest Florida International Airport Communities) and west of the county line. With the exception
of a few Public Facilities, the entire community is designated as Density Red uction/Groundwater Resource, Conservation
Lands (both upland and wetlands), and Wetlands on the Future Land Use Map. This "community" consists of mining
operations, agricultural uses, and very large lot residential home sites. The one exception is the Citrus Park Community.
This community is not expected to change in character through the year 2030.
Case DC12006 -00026 Page 3 of 70 07- Apr -10 -
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n The authority and function of the Lee County Hearing Examiner's Office, with respect to
zoning matters, is set out in Lee County Land Development Code Section 34- 145(d).3
Lee County Land Development Code Section 34.145(d):
(d) Zoning matters.
(1) Functions. Regarding zoning matters, the hearing examiner has the following prescribed duties and
responsibilities:
a. Prepare recommendations to the Board of County Commissioners for changes or amendments
relating to the boundaries of the various zoning districts or to the regulations applicable to those
districts.
b. Make recommendations to the Board of County Commissioners on applications relating to the
following:
1. Rezonings, including developments of county impact, planned unit developments and
planned developments, and any accompanying request to use TDR or affordable housing
bonus density.
2. Developments of regional impact and Florida Quality Developments approval, which may
or may not include a request for rezoning.
3. Special exceptions that meet the criteria for a development of county impact, as set forth
In section 34- 203(b).
4. Other special exceptions and variances which are submitted simultaneously with and are
heard in conjunction with a rezoning.
5. Variances from any county ordinance which specifies that variances from the ordinance
may only be granted by the Board of County Commissioners.
S. Applications to increase density above the Lee Plan standard density range through the
n use of affordable housing bonus density units.
7. Reinstatements of master concept plans for planned developments.
8. Applications for mine excavation development planned approval under chapter 12.
c. Certain amendments to development of regional impact development orders do not require a public
hearing. After staff review and recommendation, proposed amendments of this type will proceed
directly to the Board of County Commissioners and will be scheduled on the administrative agenda
of a regular weekly meeting. The board will vote on the following types of amendments based upon
the recommendation of staff without review by the hearing examiner:
1. Amendments that incorporate the terms of a settlement agreement designed to resolve
pending administrative litigation or judicial proceedings; or
2. Any amendment contemplated under F. S. § 380.06(19)(e)2.
(2) Considerations. In preparing his recommendation on any matter, the hearing examiner must consider the
criteria set forth in subsection (c)(2) of this section as well as the following, if applicable:
a. Whether there exists an error or ambiguity which must be corrected;
b. Whether urban services, as defined in the Lee Plan, are, or will be, available and adequate to serve
a proposed land use change, when reviewing a proposed change to a future urban area category; and
c. Whether a proposed change is intended to rectify errors on the official zoning map.
d. Whether the level of access and traffic flow (i.e. median openings, turning movements etc.) is
sufficient to support the proposed development intensity.
e. If the hearing concerns a mine excavation planned development, whether the request meets the
criteria and standards set forth in chapter 12.
(3) Findings. Before preparing his recommendation to the Board of County Commissioners on a rezoning, the
hearing examiner must find that:
a. The applicant has proved entitlement to the rezoning or special exception by demonstrating
compliance with the Lee Plan, this land development code, and any other applicable code or
Case DC12006 -00026 Page 4 of 70 07- Apr -10 -
110
The subject site is bordered on the north by a parcel owned by Lee County; which is subject
to a conservation easement, and is identified, on the Lee County Comprehensive Plan, as
the Airport Mitigation Overlay Area. East of the property is a large parcel, known as the T E
& T Mitigation Area, which is actually owned by the South Florida Water Management
District, and leased for use as a mitigation bank. Directly, south of the subject parcel is
Corkscrew Road, across from which are four separate parcels, The first of these parcels,
located cn the eastern portion, is the Schwab 640 Mine. an Industrial Planned Development
(IPD). West of that are numerous lots, in the Agricultural zoning distracts, known as the 6L
Farm's Development. This area consists of large lots, which are agriculturally zoned, and
used primarily for residential purposes. They are accessed from a common road, heading
south from Corkscrew Road. Further west, along Corkscrew Road. is a parcel comprising a
Private Recreational Facililies Planned Development (PRFPO }, On the western side of the
subject property's southern border is a large parcel comprising an Agricultural Zoning District
(AG -2), Finally, due west of the subject property are a number of large lots, commonly
referred to as the Burgundy Farms Subdivision, which are all in Agricultural' Zoning Districts,
regulation: and
b. The request will meet or exceed all performance and locationai standards set forth for the potential
uses allowed by the request; and.
c. The request, including the use of TDR or affordable housing bonus density units, is consistent with
the densities, intensities and general uses set forth in the Lee Plan; and
d. The request is compatible with existing or planned uses in the surrounding area; and
e. Approval of the request will not place an undue burden upon existing transportation or planned
infrastructure facilities and will be served by streets with the capacity to carry traffic generated by the
development; and
f. Where applicable, the request will not adversely affect environmentally critical areas and natural
resources.
g. In the case of a planned development rezoning or mine excavation planned development, the
decision of the hearing examiner must also be supported by the formal findings required by sections
34- 377(a)(2) and (4).
h. Where the change proposed is within a future urban area category, the hearing examiner must also
find that urban services, as defined in the Lee Plan, are, or will be, available and adequate to serve
the proposed land use.
(4) Authority.
a. The hearing examiner serves in an advisory capacity to the Board of County Commissioners with
respect to zoning matters as set forth in subsection (d)(1) of this section, and in such capacity, may
not make final determinations.
b. The hearing examiner may not recommend the approval of a rezoning, and the Board of County
Commissioners may not approve a rezoning, other than the request published in the newspaper
pursuant to section 34- 236(b), unless the zoning district proposed by the hearing examiner is more
restrictive and permitted within the land use classification set forth in the Lee Plan.
c. in reaching his recommendations, the hearing examiner has the authority to recommend conditions
and requirements to be attached to any request for a special exception or variance included under
subsection (d)(1)b.3., 4. or 5. of this section.
(5) Decisions.
All decisions of the hearing examiner concerning zoning matters under this subsection (d) will be in
the form of a recommendation to the Board of County Commissioners. Only a participant or his
representative will be afforded the right to address the Board of County Commissioners.
Case DC12006 -00026 Page 5 of 70 07- Apr -10 -
!10
and used as single- family residentia: sites. Some of these lots are developed, while others
are not. They are accessed from the private unpaved Burgundy Farms Road which leads
north from Corkscrew Road.
The Applicant's property is a rectangular shaped parcel, with the exception of another,
smaller, rectangular parcel, which extends into the subject property, in a northerly direction,
from Corkscrew Road. That parcel is owned by Lee County, purchased as a 20/20
conservation acquisition. There is also an easement along the southern property line, to Lee
County Utilities, wherein six water wells are located.
The Applicant's Master Concept Plan, as originally submitted for consideration, consists of
four pages, which are attached hereto as Exhibit B. Please note, this is not the Master
Concept Plan that is recommend for approval by this Hearing Examiner. The Master
Concept Plan being recommended by the Hearing Examiner is attached hereto as Exhibit
C. It was developed by the Applicant during the course of the hearing. The latter plan
depicts the 770 acre lake, which will be the result of the proposed excavation. The Typical
Lakes Section reflects a 110 foot deep lake. From the top of of the bank of the lake, the
slope is 6:1 to 4 feet, below the dry season water table, and 2:1 from four feet to twenty feet
below the dry season water table, then vertical to the lake's maximum depth.
The plan represents that the raining wil take place in five phases. over an estimated time
frame of twenty years, or more. Phase 1, or the first area to be mined, is in the western
quarter of the property. Phase 2 comprises the west - central portion of property. Phase 3 is
the east- central portion. Phase 4 is on the eastern portion of parcel. An area described as
Phase 5 depicts the administrative office, concrete batch plant, asphalt batch plant,
aggregate piles, Ioacing and distribution areas on 120 acres. That phase may also be the
last phase mined
Phase 5 contains the entrance to the property from Corkscrew Road. No other access points
are depicted on the Master Concept Plan. The plan represents that the phases will be mined
sequentially, and new phases will not be excavated until the prior phase has been completed.
Preserve areas are located along the eastern, western and northern boundaries of the
property, constituting buffers between adjacent parcels.
A 50- foot -wide, 8- foot -tall, vegetative buffer will front along Corkscrew Road (south property
line). Wetland and upland restoration buffers are proposed along the other three property
lines. Minimum excavation setbacks are 910 feet from the west property line (adjoining the
Burgundy Farms area), 2,100 feet from the east property line, 500 feet from the north
property line and 400 feet from the southern or Corkscrew Road boundary line. An extensive
reclamation plan is also proposed. A cross section of a proposed hydriodic barrier (subject
of later discussion) is also depicted on the Master Concept Plan.
This application is unusually, for a number or reasons. It comes before the Hearing
Examiner with a 'judicial history." The Applicant previously filed a lawsuit against Lee
County. Resource Conservation Holdings, LLC, a Florida Limited Liability Company vs. Lee
County, Florida, et., at, Case Number 08CA- 18477, Circuit Court of the Twentieth Judicial
Circuit In and For Lee County, Florida. A copy of the Final Judgment therein is attached
hereto as Exhibit D. In that lawsuit, the Applicant requested the issuance of a mandamus
against the County, requiring them to bring this matter forthwith, for hearing, before the
Hearing Examiner.
Case DC12006 -00026 Page 6 of 70 07- Apr -10 -
n
1�
The application commencing this matter was originally filed on March 21, 2006, and
requested approval of a dirt mine. In 2007, the Applicant made a decision, with the consent
of the County Staff, to amend its request for a limerock, or aggregate, mine to a depth of no
lower than 110 feet. Both types of mines are permitted within an Industrial Planned
Development. The amended application was submitted to the Department of Community
Development, on June 20, 2007.
In September 2007, County Staff and the Board of County Commissioners began an effort
to amend the Lee County Comprehensive Plan. From September 18, 2007 through
December 4, 2007, the Court found that a de facto moratorium was in effect, at the Board
of County Commissioner's direction, mandating that the Development Staff not process any
mining applications. That Court ultimately concluded that the Board actions were improper,
in that, no public notice was given of the proposed action, and no proposed moratorium
language, for the public to review, was provided. The Development Staff did continue to
process the subject application, for a short period of time. On October 2, 2007, the Staff
accepted a full submission from the Applicant, responding to a Staff Request for Additional
Information. Pursuant to Lee County Land Development Code Section 34-373 (d)(1), the
Development Staff had 15 days to respond, in writing, to the submittal. That ordinance further
provides, that the failure to respond within the 15 -day period will result in the application
being "deemed sufficient." The 15 -day response period expired on October 23, 2007, with
no response from Staff.
The Court concluded that the application had, by operation of law, been "deemed sufficient."
It further noted that the term, "deemed sufficient," is not a substantive finding, either
approving the application, or recommending approval. It is, however, a procedural step,
which means enough information has been submitted to allow the application to be heard,
and reviewed, by the Hearing Examiner. The Court did not recognize the de facto moratorium
by the Board of County Commissioners, and granted the mandamus. The Court ordered that
the application was to proceed forthwith for hearing before the Hearing Examiner, and
ultimately the Lee County Board of County Commissioners, for action in accordance with the
provisions of the Lee County Comprehensive Plan and the Lee County Land Development
Code, that were applicable to the subject property on the date of the ding of the initial
application. Any future amendments to those ordinances are not applicable, or to be
applied to, the subject application.
The matter was originally assigned to Diana Parker, Chief Hearing Examiner. However, on
May 21, 2009, the Applicant filed a Motion to Recuse Diana Parker from hearing this matter.
See Exhibit E hereto. The basis for this request was "a well- founded belief that Ms. Parker
has developed a pre - determined conclusion against any mining operation on Corkscrew
Road, in the vicinity of the RCH property." The Lee County Attorney's Office filed a
memorandum opposing the Motion to Recuse. Ms. Parker held a hearing, on said motion,
on May 26, 2009. The law that governs a recusal contains a rather low threshold. Basically,
the hearing officer must avoid the suggestion of impropriety. It need not be proven that a
conflict, bias or basis actually exist; it merely is sufficient to suggest the same. While
denying any pre - determined conclusion, or bias, on her part, Ms. Parker did recuse herself
from hearing this matter, in order to avoid the suggestion of any such impropriety, The case
then proceeded before the undersigned Hearing Examiner.
In compliance with Circuit Judge Joseph C. Fuller's Order of February 12, 2009, Exhibit D,
the hearings commenced, on May 27, 2009. Thereafter, testimony was taken during 22
Case DC12006 -00026 Page 7 of 70 07- Apr -10 -
110-
days, spread over seven months. The final arguments took place on November 6 2009. The
record comprises approximately 5,000 pages of testimony and argument, including testimony
from approximately 36 expert witnesses, 59 members of the public spoke before this
Hearing Examiner, and eight others submitted comments without testifying. Approximately,
228 exhibits are part of the record, as well as six separate memorandums of law, and
responses thereto. The purpose in reciting these statistics is to suggest that no other matter
before this office has ever had such an in- depth, exhaustive, and comprehensive review or
examination.
Applicant's Case
Testimony began with the Applicant's expert in land planning, David Depew.4 Dr. Depew
PhD., whose expertise is well known to the Hearing Examiner, County Staff, and the County
Attorney, testified regarding the Applicant's development plans, as basically outlined above.
The other significant portion of his presentation related to the application's consistency with
State Statutes and Lee County Ordinances. The discussion commenced with compatibility
issues, within the County's Future Land Use Map. Dr. Depew asserted that certain future
land use categories are more intensive than others, and that others are designed to preserve
current uses and character. This includes the rural communities, which were created to
"promote design approaches for maintenance of rural character." In other words, areas
designed to remain permanently rural in character. Likewise, the Lee County
Comprehensive Plan enumerates which areas are intend to be developed, by specifying
uses, and in what areas development, or expansion, uses can occur.
The subject property is located in the Density Reduction /Ground Water Resource Land Use
.-� Category (DR /GR). That land -use category specifically authorizes agricultural, mining or
natural resource extraction, conservation, gun range, and recreational uses. The mining or
natural resource extraction use is not limited to the DG /GR Land Use. It is also authorized
in Industrial Land Use areas. Dr. Depew testified the reason that mining or natural resource
extraction was placed in the DR/GR, was simply that it was the area in which limestone is
located, and that limestone mining has been occurring in that area for at least the last 40
years.
The definition of the DR/GR Land Use is contained in the Mission Statement of the Lee
County Comprehensive Plan. It is Mr. Depew's opinion that the reason for placing it there,
was to put the public on notice that if you are moving to that area, or are acquiring land there,
or for that matter any portion of Lee County, the Mission Statement will inform you of the
kinds of activities that you should expect to be permitted within the respective land use.
Consequently, anyone acquiring property in the DG /GR is on notice that mining activities may
occur, within any part of that designated area.
The definitions of some future land uses, in the Vision Statement are actually very limited,
as compared to others. For example Buckingham and Pine Island, two separate
communities, have definitions that indicate that they are predominantly agricultural
communities and are to be maintained in a rural setting. For example, the definition of Pine
Island indicates that "it will continue to be a place where people, nature, and agriculture exist
in harmony, a place that is not very different from what it is today." The purpose of the Lee
Hearing Transcript, May 27, 2009, pp. 13 - 63.
n
Case DC12006 -00026 Page 8 of 70 07- Apr -90 -
11
County Comprehensive Plan is to protect these communities from urban sprawl, and
development of strip malls and other similar intense uses. The desire is to maintain those
communities as viable and productive agricultural areas. The definition of the DR/GR
contains no such restriction. Indeed, it is the position of Dr. Depew that nothing is
permanently restricted in that area. The language describing the DR/GR talks about
agricultural uses and large lot home sites. There is nothing in the definition that permanently
maintains existing uses. It simply lists as basic and allowable uses, mining, agricultural, and
large lot residential homes. There is nothing in the definition that indicates that this area is
to be maintained in its current condition.
Goal 10, and Policy 10.1.4, of the Lee County Comprehensive Plan, indicate that mining
activities are permissible in areas indicated on the future land -use map, in rural open lands,
or the DR /GR. The latter is only one, of the three land -use areas, that permit mines. He
continued by describing the existing, and closed, mines in the DR/GR. Exhibit F, attached
hereto, depicts all of the prior and current mining operations within the DR/GR. The purpose,
of reviewing these mine locations, is to indicate that mining activities are a currently accepted
activity in this area.
The testimony went on to discuss the Applicant's request in terms of area to actually be
mined, set aside for wetland, preserves, buffers and other uses. I am not going to be
dwelling on those figures in this immediate discussion. On several occasions during the
hearing, the Applicant amended the request. This was generally done in response to
comments from County Staff, neighboring property owners and Hearing Examiner
statements. The end result are the conditions and description of the project, as set out in this
recommendation, and the recommended Master Concept Plan, Exhibit C hereto.
The Applicant's next witness was Mr. Kirk Martin.s The witnesses resume is attached hereto
as Exhibit G. Mr. Martin is a hydrologist and Vice President of Camp, Dresser and McKee,
Inc. (CDM) He performs groundwater assessments and modeling for his company, and their
clients. He has previously testified in this venue, and was recognized as an expert witness
in ground waterhydrology, geology, and groundwater modeling. Sixty percent of his practice
involves providing services to governmental agencies, including Lee County, and the
remainder to private entities. At the beginning of his testimony, Dawn Perry- Lehnert,
Assistant County Attorney, raised an objection to his testifying, based on what she perceived
as a conflict of interest. Specifically, Mr. Martin has been employed by Lee County, on
several occasions, and has provided expert opinions regarding hydrological issues in the
DR/GR. Mr. Martin was involved in the creation of the Integrated Water Master Plan for Lee
County. Ms. Lehnert informed the Hearing Examiner, that at the present time, there is
litigation, before the Division of Administrative Hearings, that dealt specifically with the
subject matter of this case, and some of those issues directly relate to what Mr. Martin was
going to testify about.
Mr. Martin denied any involvement in the litigation, and indicated he did not know that the
subject matter of his testimony was related to it. This Hearing Examiner made a
determination that it would be more appropriate to deal with the conflict issue by allowing the
County to file a Motion to Strike his testimony. This would allow the examination of Mr. Martin
Hearing Transcript, May 27, 2009, pp. 63 -145.
n Hearing Transcript, May 28, 2009, pp. 52 - 73.
Case DC12006 -00026 Page 9 of 70 07- Apr -10 -
110'
to continue, and the County could then file their motion and any supporting documentation
of a conflict. If the Hearing Examiner found a basis for the County's request, Mr. Martin's
testimony would be stricken from consideration herein. The County Attorney later withdrew
the assertion of a conflict of interest and the matter was not further discussed.
The examination of Mr. Martin continued, and his PowerPoint Presentation was introduced
as Hearing Exhibit Number 32. The witness indicated that there are a number of possible
environmental impacts that had to be reviewed, prior to any development of the property. He
noted there is a wetland area to the north of the property, that is part of the Southwest Florida
International Airport Mitigation Bank. There is also a private mitigation bank, on property
owned by the South Florida Water Management District, to the east of the subject property.
Additionally, public water supply well fields, operated by Lee County Utilities, are on the
southern portion of the subject site. Mr. Martin gave a general overview of Florida's
hydrology. He indicated that there was a difference in the rock formations located in South
Florida, from the rock formations in the northern part of the state.
Generally, in Lee County, it is typical to find approximately 15 feet of sand overlying
approximately 20 to 30 feet of rock, then below that a clay confining bed, and finally an area
that is known as the Sandstone Aquifer. This is the aquifer that provides drinking water for
County residents. This cross - section exists over approximately 80 percent of Lee County.
However, in the area of the DR/GR, that cross - section changes. In this area you find 15 to
20 feet of sand, underneath there is up to 100, or more, feet of limestone. The limestone is
coarse, hard and very desirable by mining interests, developers, and the Florida Department
of Transportation. It is also important for water uses. That is why so many of the Lee
County's well fields exist in the area.
Mr. Martin indicated that there is a conception that mining lowers water levels, but that this
is an overly broad statement. Mining levels can lower water levels, but don't necessarily have
to, if preventive measures are provided. One assumption is that evaporation, from the lakes
or borrow pits resulting from excavation, causes greater evaporation of water. There are
compensating actions occurring when you develop a mine.
Prior to mining, loss of water is occasioned directly by soils or puddles, or transpiration of
plants. There is also significant water runoff on agricultural lands. This is estimated at
approximately 40 inches per year. The post mining lakes are estimated to lose
approximately 34 to 35 inches of water from evaporation, with no runoff. The net recharge
to the groundwater reserves is approximately one inch prior to mining, and five inches after
mining. This translates to an improvement to the groundwater recharge, after mining.
The subject property loses approximately 13 inches of water per year, due to runoff, as a
result of the extensive drainage system, running in a north -south direction. There are five
or six such culverts on the site, measuring 30 feet across and up to 6 feet deep. The
proposed berm around the property provides for permanent containment of storm water, up
to the 100 -year storm scenario.
He concluded that the post mining scenario has a higher annual groundwater recharge and
higher overall water level, due to the elimination of surface water runoff. Further, that Lee
Case DC12006 -00026 Page 10 of 70 07- Apr -10 -
ill
n County Utilities, the Green Meadows and Corkscrew well fields, include wells adjacent to the
mine lakes, with a long history of no water quantity or water quality problems.6
There is one rather unusual condition that exists on the subject site. The water levels on the
northeastern portion of this site are around 24 feet NGVD, and drop to 18 feet NGVD on the
southwestern portion of the property, Those differences in water level are caused by the
material (rock) in the ground that causes a friction, which in turn causes the water to move
more slowly, and hence the slope. If you remove the material, the friction is removed, and
the waterwill seek its own level. Essentially, lying flat along the project. That may cause the
potential to lower groundwater levels to the neighboring properties, to the north and east, that
is the mitigation banks. Mr. Martin's firm, including Mike Schultz (whose testimony will be
discussed later) reviewed the geology and concluded that the construction of a grout curtain
would be the most cost effective, and most technically effective, method to prevent any such
off -site impacts.
A grout curtain is not meant to be a barrier to water flow, or to stop water flow. It is designed
to be an impediment to flow. The curtain will re- create the friction that occurred prior to
excavation of limestone. The process consists of drilling a line of holes, between the
excavation and property boundary, every 15 to 20 feet, and pumping in a cement grout
solution, under pressure. This is the same solution put into the County's public supply wells
in the area. The grout spreads out from the holes, and fills in voids, holes and crevasses,
within the limestone rock. This is a limited blockage of the water flow. If the water level
drops on the subject site, this will not affect off -site levels. This is an adaptive and flexible
technology. The Applicant can increase the density, or number, of holes to create more of
a blockage, or lessen the holes to increase flow. A more detailed review of this methodology
is presented in the discussion of Mike Schultz's testimony. The Hearing Examiner should
point out, at this time, that the use of the grout curtain was modified by the Applicant, as will
be discussed later in this review.
This technology is controlled by the Applicant's Adaptive Management Plan (AMP). This
Plan proposes to monitor on -site wells, as well as off -site wells, and ground water level
monitoring stations. Mr. Martin described a three tier action plan. Monitoring water levels,
will determine if and when remedial action is required. If such action is required, the grout
curtain will be designed, and constructed, to respond appropriately. All monitoring data will
be reported to Lee County and the South Florida Water Management District, as a
requirement of the Plan. The Applicant's Adaptive Management Plan has already been
approved by the Florida Department of Environmental Protection. I am not discussing the
specifics of the Plan, proposed by Mr. Martin, at this time, because, during the pendency of
the hearing, modification to the same was proposed by the Applicant, based on concerns
expressed by the County Staff. The Amended Adaptive Management Plan is included within
the conditions to this recommendation.
For purposes of this recommendation, I think it appropriate to review, in detail the final
version of that Plan. In any event, the original Plan, as approved by the Florida Department
of Environmental Protection (Applicant's Hearing Exhibit 32), is the one initially presented to
the County. The one that is the actual subject of this recommendation is more restrictive,
than the original submission, and, therefore, would most likely be approved by that agency.
Hearing Transcript, May 27, 2009, at Page 79.
Case DC1200"0026 Page 11 of 70 07- Apr -10 -
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^ At this point in time, cross examination of Mr. Martin was commenced. Examination of
Applicant witnesses was unusual, as was the cross examination of most witnesses in this
proceeding, in the sense of the number of Staff members asking questions of witnesses. In
other cases before this Hearing Examiner, one, maybe two, members of the Staff would have
questions of a witness; in this case, upwards of six Staff Members sought to question a
witness.
Since a great portion of the cross examination was repetitive, and sought clarifications of Mr.
Martin's testimony, I will discuss the more salient portions. Mr. Martin did confirm the
development of the mine in five stages. That, according to the Adaptive Management Plan,
the second phase would not proceed, until the monitoring of Phase 1 had be completed, to
the satisfaction of the Florida Department of Environmental Protection. This scenario would
continue for each additional phase. Surface water, up to the 100 -year storm level, would be
retained on -site. Water moving through the groundwater system is not constricted from
getting off -site. He confirmed that lakes, similar to those proposed in this development, have
a positive effect, in terms of attenuation of drawdowns, to the nearby water supply wells.
The Applicant's next expert witness was Michael S. Schultz,' of Camp, Dresser and McKee,
Inc., in Cambridge, Massachusetts. Since, Mr Schultz has never testified in this forum, his
curriculum vitae is attached as Exhibit H hereto. He was accepted as an expert in
geotechnical engineering. Mr. Schultz does not specialize in grout curtains, rather in all the
major forms of barrier walls, slurry walls, cut -off walls, sheet piles walls, and ground freezing.
Mr. Schultz first described the grout curtain proposed for this site. It is a series of holes in
a line, or multiple lines, drilled to a depth of approximately 110 feet, through the limestone,
and tapping into the clay, or confining, layer beneath it. Following drilling, grout is injected
into the holes, under pressure. The pressure is greater than the stresses in the ground, with
the result that the grout opens up fractures or holes in the rock, and the grout fills it. Grout
is a substance made of water, cement, and sometimes bentonite, with a strength that is
approximately 10 percent of concrete. Its chemical nature has no adverse environment
impacts. Exhibit I depicts this process. The depth (into the rock) of the infrll depends on the
permeability of the rock, the in- ground stresses, and the viscosity or fluidity of the grout mix.
The grout curtain will only be placed on the east, north and west sides of the site. There is
no need for it on the southern boundary, because it is the lower side of the property.
Additionally, there is a desire not to impact the County wells in that location. The grout curtain
will be installed after the completion of each mining phase. Mining will commence in Phase
1, on the west portion of the site, with the result that the curtain, if needed, will be installed
at the end of mining in that phase.
Prior to the actual grouting, water pressure tests are conducted at various levels, to measure
the ground response, or how much water the ground is taking. That gives the operator an
estimate of the ground permeability, and thereby the amount and mixture of grout that is
appropriate for the hole. Initially, it is anticipated that the holes will be 15 feet apart.
However, a determination, of higher or lower than anticipated permeability may change the
spacing. Additionally, more grout holes or, a second or third line of grout holes can be
prepared at alternate spacing, to further decrease permeability. If it is determined, that the
Hearing Transcript, May 27, 2009, pp. 35 -106
Hearing Transcript, May 28, 2008, pp. 4 - 52
Case DC12006 -00026 Page 12 of 70 07- Apr -10 -
110
n grouting is too impermeable, it is possible to fracture portions of the grouting to increase flow.
The Adaptive Management Plan requires the monitoring of wells on the site, as well as off -
site, to determine any off -site changes to groundwater levels. Based on those results, the
permeability created by the grout curtain can be adjusted. Grout curtains are not a new
concept, they were first employed in 1802, and have remained an generally accepted
engineering application since that time.
Upon cross examination, Mr. Schultz explained that the grout, proposed for the current site,
would have a setting time of four to six hours. Grout curtains may be affected by chemical
reactions over years and thereby deteriorate, but that is unlikely in the current location given
the chemical of the rock structure. When questioned whether the mining activity, and /or on-
site blasting, would affect the curtain, his response was that the charges used for that
purpose are controlled and directional. Further, monitoring of the site would detect any such
changes to the grout curtain. He also indicated, that during the drilling for the grout curtain,
core samples are taken, rather than the operators looking at the grout and water to
determine the intrinsic permeability. Other engineering and scientific issues were discussed
with members of Staff, but none appeared to give rise to any negative effects of the grout
curtain.
Ryan Shute,8 of Morris - Depew Associates, a registered professional engineer, appeared
as the Applicant's expert in surface water management and engineering issues related to
surface water management. His testimony was related to the potential of diverting surface
water from north of the subject site, to the Burgundy Farms community, west of the subject
property. Mr. Shute testified that the Applicant's site is an agricultural field, with ditches
11-N running from north/south, and a small number also running east/west. None of the ditches
are connected to any off -site drainage. Water flow in the area is generally from the northeast
to southwest. There are existing berms that divert water from the north, to the properties to
the west, that is the Burgundy Farms community. This is the historic flow of surface water,
for decades, or at least since the property has been used for agricultural purposes. It
precedes the development of the Burgundy Farms area. There is a control mechanism with
a flash water riser, a small weir, on the south side of the site.
The proposed site, as permitted by the Florida Department of Environmental Protection, is
going to have a perimeter berm set 100 feet back, to allow a vegetative upland buffer, from
the north property line. Additionally, there will be a vegetative upland restoration planting
along the western property line. The west side of the site has the lowest elevation. Surface
water from the north will continue to be deflected around the subject site to the Burgundy
Farms area, that is the current historic flow pattern. The site will not add to the flooding
problems of that community, because it will retain all of the subject property's surface water,
on -site. Cross examination of the witness did not reveal any remarkable issues.
Mr. Paul Kirby Owen ", of W. Dexter Bender Associates, was declared to be the Applicant's
expert in wetlands ecology, wildlife biology and marine ecology. The witnesses resume is
attached hereto as Exhibit J. Mr. Owens evaluated the site for listed species and assisted
Hearing Transcript, May 28, 2009, pp. 73 - 107
Hearing Transcript, May 28, 2009, pp. 73 - 107
Case DC1200"0026 Page 13 of 70 07- Apr -10 -
110'�'�
n in the design of the Indigenous Management Plan, Exhibit K attached hereto. Ninety -two
(92) percent of the site is actively managed, with improved pastures, that historically has
been grazed by cattle and the periodic harvesting of sod. He noted the berm and ditch
system, described by the previous witness. Native vegetation association consist of upland
flatwoods and cypress wetlands on the east and west property line. Remnant islolated
cypress wetlands are located within the improved pasture, in the interior of the site. The ditch
network surrounding this area has substantially altered the historic hydrology of the wetlands.
The mid -story of remnant cypress areas was dominated by exotic species, prior to recent
treatments. The ground cover has been impacted by the cattle, and is now dominated by
invasive species. There are no significant natural resources on the site, which contains 80.7
acres of wetlands, 28.8 acres of wetland agricultural ditches and 15 acres of other surface
water upland -cut agricultural ditches and cattle ponds.
Additionally, a protected species survey was conducted by Passarella and Associates in the
year 2000, and by Brown Collins in 2004. A limited caracara nesting survey was performed
by W. Dexter Bender and Associates in 2007. Those surveys documented the opportunistic
use of the overall property by the Big Cypress Fox Squirrels, Florida Burrowing Owls, several
species of wading birds, Audubon's Crested Caracara and an Alligator. Only the Florida
Burrowing Owl and the Big Cypress Fox Squirrel were nesting on the property. The
implementation of the Management Plans will ensure that this project does not affect a listed
species. No Florida Panther or Bears have been observed on this site. Nor is there panther
or bear habit located on the site.
The proposed development provides for the enhancement of 73.3 acres of indigenous upland
and wetland habitats and the restoration of 114 acres of uplands. A total of 187.3 acres of
r� native habitat will be placed under a conservation easement and permanently protected. The
goal of the Indigenous Vegetation Management Plan will be implemented to enhance the
existing wetlands and uplands, by exotic species control, and to restore native uplands and
wetlands, by native plantings along the perimeter of the site. This will provide a buffer
between the excavations and the conservation lands to the northeast and residences to the
west.
The project, upon completion, will produce 99.34 kilograms of forage fish biomass for the
wood strock population. Forage fish biomass is the weight of fish, on a per acre basis, in a
particular wetland, based on hydrology. The Applicant is incorporating a wading bird littoral
shelf drawdown berm into the lake's littoral shelf. The drawdown berm traps fish in it, when
water is drawn down during the dry season. This provides the optimum feeding condition for
wood storks and other wading birds.
Commenting on the Florida Panther and Black Bears, the witness indicated that it is unlikely
that such animals would be struck by vehicles operating from the mine. There is a large
mammal wildlife undercrossing, constructed west of the subject site, and is the only nearby
area with natural vegetation. The animals are funneled into this crossing (under the
roadway) by a fence, along the right of way. Cross examination of this witness did not
produce any unusual issues worthy of comment.
Case DC12006 -00026 Page 14 of 70 07-Apr- 10 -
11D
Larry Sewell10, of Sarasota, Florida testified as the Applicant's expert in real estate appraisal,
and in particular to Lee County, Florida. Mr. Sewell was tasked with studying the impact of
rock mining, or mining activities, on the value of adjoining residential real estate. A
secondary review was made to determine whether mining, or mining activities, was
sufficiently incompatible to discourage residential real estate development.
The witness discussed his interviews with individuals who reside, manage or broker
properties within the DR /GR and in close proximity to mining operations. Those interviews
revealed common complaints related to truck traffic, lighting, and blasting activities. He
interviewed individuals, from residential areas, within and outside of Lee County. He
concluded that there is a uniform market resistence to the presence of mines. Just like there
is a resistence to electrical transmissions facilities or locations next to an interstate highway.
However, that resistence does not mean that there are not buyers for residences in these
locations. To the contrary, the witness testified that the proximity to a mine does not diminish
the fair market value of the property, rather the buyer pool is lessened. Again, cross
examination did not result in any conflicting issues, with the witness's testimony.
Ted Treesh ", of TR Transportation Consultants. testified as the Applicant's expert in
transportation planning, and the author of the Traffic Impact Statement, submitted to County
Staff in support of Viis application. The witnesses resume is attached hereto as Exhibit L,
That study was updated and the update issued immediately prior to Mr, Treesh's testimony.
The original study was based or a 108 million cubic yard year, that is the estimated actual
tonnage removed from the subject site. The new study accurately reflects the proper
91,295.062 cubic yards of material. In computing the usage of the site, Mr. Treesh assumed
the actual operation of the mining operation and the operation of four batch plants. There
may be a concrete block plant, substituting for the batch plant, but the block plant generates
less trips. Therefore, the four batch plants would represent the maximum potential trip
production. The result is that the facility could produce a maximum of 1,309 one -way truck
trips per day The subject application requests 1,200 two -way, or 2,400 one -way truck trips
per day, onto Corkscrew Road This is also based on a 15 -year useful life of the mine. The
application indicates a 20 -year, or longer. useful life for the mine. It also presumes that the
mine will operate 52 weeks per year. A typical truck can haull 5 cubic yards of material.
Taking the above assumptions into account, Mr. Treesh then determined what effect this
increase in traffic will have on Corkscrew Road. The Highway Capacity Manual's
methodologies requires that a factor of 1.7 be applied to truck trips this takes into account
the difference in characteristics between trucks and passenger vehicles. In simpler
language, one truck trip is the equivalent of 1.7 passenger vehicle trips. The usage was
computed based on traffic for the year 2011 (the year following opening of the mine), The
study concludes that there would be a Level of Service "B," on Corkscrew Road, east of the
project entrance to the Lee County line; a Level of Service "C," on Corkscrew Road, west of
the project entrance to the intersection with Alico Road, and a Level of Service "B," on
Corkscrew Road, west of the Alico Road intersection, The adopted Level of Service for
Corkscrew Road, pursuant to the Lee County Comprehensive Plan, is Level of Service "E."
The result is that, even with the Applicant's maximum use of the reviewed road segments.
10 Nearing Transcript, May 29, 2009, pp. 3 - 37
Hearin Transcript, May 29, 2009,
9 P y pp. 38 - 70.
Case DC12006 -00026 Page 15 of 70 07- Apr -10 -
11D
those roadways will be within the acceptable levels prescribed by Lee County Ordinances.
Applicant's most recent Traffic Impact Statement is attached hereto as Exhibit M.
A similar study was undertaken, using the Link- Specific Service Vo/umes (created basea or.
factors imputed into Florida Department of Transportation software). This study produced
similar results to that discussed above, excepting that Corkscrew Road, east of Alico to the
entrance of the site. operates at a Level of Service "D.` This is still within the adopted
acceptable level o` service standard for Corkscrew Road.
There was d.scussion of changing computations to assurne that there would be ess tha-,
anticipated use of Alico Road to connect to Interstate 75. In re- computing the above
analysis, using this new assumption, the Level of Service for the various segments of the
roadways are B, C or D. These are still within the acceptable standards, as defined by Lee
County Ordinances.
Mr. Treesh testified that, in order to further reduce traffic impacts, the Applicant nas proposed
financing the following road improvements (these improvements are costa :ned vVitrin the
recommended conditions of this recommendation):
1. Construct a felt turn and deceleration lane, east bound, on Corkscrew Road, into ^e
site's entrance,
2. Construct an acceleration lane on the north side of Corkscrew Road, at the site
entrance, to merge truck into east bound traffic.
3. Construct a left turn and deceleration lane, east bound, on Corkscrew Road. into
Burgundy Farms Road,
4. Constrict a left turn and deceleration lane, east bound, on Corkscrew Road, into
Alico Road,
5. Construct a right turn and deceleration lane, west bound, on Corkscrew Road, into
Alico Road,
Mr. Treesh also confirmed that the Lee County Department of Transportation classifies
Corkscrew Road, at the subject site, as an arterial roadway, That is a road that is primarily
designed to accommodate longer distance trips, higher speed of travel, and higher volumes
of travel, Lee County Land Development Code, at Section 10. 1, defines , `Arterial, means a
street primarily intended to carry large volume of through traffic connecting a major activity
center to other major traffic generators. Access to abutting properties is a secondary
function.' Mr, Treesh refined the classification of this roadway as a "rural arterial roadway,'
There are other conditions that have been recommended by the Applicant. that deal with
traffic issues. They will be discussed later in this recommendation, as part of the discussion
of conditions.
The Applicant then called upon Jeffrey Straw, 12 of Geosonics, Incorporated. His resume is
attached hereto as Exhibit N. The witness was determined to be a seismologist, and an
expert in the field of blasting vibrations and associated issues. Mr Straw described the
blasting process to be employed at the subject site. Initially, after removal of the overburden,
the surface is leveled, and the mine operator and explosives company set out a pattern for
blast hole drilling. In this case, the initial cut, that is the key cut, would run north /south
tz Hearin Transcript, May 29, 2009,
9 P Y pp. 71 -179.
Case DC12006 -00026 Page 16 of 70 07- Apr -10 -
r
n through the area designed as Phase I. They would drill to a specific depth, insert a
cardboard tube, place a soup can sized vessel with a booster, which also contains the
blasting cap, which is on the bottom of the hole, and then fill it with bulk emulsion. It is
eventually detonated. The detonation is actually part of a series of approximately 24 holes
that are detonated nearly simultaneously. The gas pressure created by the explosion
fragments the rock, and it is removed by a dragline. The blasting will reoccur after each
section of rock is removed, gradually expanding the excavation or lake. Ninety -five (95)
percent of the blast energy is absorbed by the rock. The remaining energy moves out from
the blast area, in the form of vibration. The operator has the ability to direct blast energy
away from adjacent residential areas. However, this does not totally eliminate all vibrations
from encroaching into the residential areas.
Mr. Straw has been involved in the blasting industry, in Lee County, for several decades.
The industry is within the regulatory jurisdiction of the State Fire Marshal's Office, pursuant
to Chapter 69-A of the Florida Statutes. Therefore, this Hearing Examiner cannot
recommend, and the Board of County Commissioner cannot usurp, the authority of that
agency which has exclusive jurisdiction over blasting activities within the State of Florida.
Dr. Depew was recalled as a witnes813, and began his second presentation by reviewing
aerial photographs of the DR/GR. These photographs were taken in 1966, 1980, 1990,
1998, 2005, and 2008, (See EXHIBIT O through T attached hereto). These pictures clearly
depict the expansion of mine development within this area of Lee County. It also depicts the
development of the subject site as an agricultural property. Finally, it reflects the residential
development within the DR/GR. The significance of that is that residential development,
while not extensive, occurs more or less simultaneous with development of mining interests.
.-� Some of the mines were converted to residential uses, after mining had ceased.
Dr. Depew then turned his attention to the individual mines and the conditions incident to
their approval. He began with the Westwind Mine (DC12000- 00057), east of the subject site
by several miles, and also on Corkscrew Road, which was approved for the processing of
sand and rock (to a depth of 50 feet), and for a horticultural incinerator. It has a 31 -year
approved use, with no blasting, operations are allowed for 12 hours, six days a week, and
a 4 to 1 slope (steeper than the subject application). The Staff and Hearing Examiner found
the application was compatible with the Lee County Comprehensive Plan and the Lee County
Land Development Code. Further, that the application was consistent with the densities,
intensities, performance and locational standards of those ordinances. Finally, it was
compatible with existing or planned uses in the surrounding area. Mr. Depew cited additional
similarities between that case and the current application.
This witness' testimony continued in similar fashion, taking up the approvals of the West
Lakes Mine, University Lakes Mine, Bell Road Mine, Bonita Grande Excavation, Southwest
Florida Rock. There was discussion of compatibility issues, traffic, distance to residential
uses, densities, intensities, water quality issues, bank slopes and their similarity to the current
application I am intentionally just giving a short synopsis of this discussion because this
application should be reviewed based on the facts and conditions of the subject property, not
13 Hearing Transcript, June 4, 2009, pp. 5 - 180.
Hearing Transcript, June 5, 2009, pp. 3 -114.
Hearing Transcript, August 19, 2009, pp. 6 - 69.
Case DC12006 -00026 Page 17 of 70 O7- Apr -10 -
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110
^ what happened in other cases, at other times. Mr. Depew also spent some time on
describing the history of this case, and how it arrived before the Hearing Examiner.
The witness then went onto discuss Applicant's Hearing Exhibit 19, which are their proposed
conditions. The Applicant had submitted proposed conditions, as part of their "24 -hour
letter," which is a response to the Staff Report. One of the unusual actions by Staff, in this
case, was the absence of a submission of any proposed conditions on their part. In every
other case heard by this Hearing Examiner, in a case where Staff has recommend denial,
they still submit recommended conditions in the event that the Hearing Examiner and /or the
Board of County Commissioners decides that the request should be approved. No conditions
were submitted by Staff. Consequently, the Applicant took it upon themselves to present
their own set of conditions. This was done by attachment to their 24 -hour letter, and the later
Applicant Hearing Exhibit 19. These two sets of conditions are different.
The Applicant, in response to the comments of County Staff and Hearing Examiner, made
modifications to the conditions to be more in line with the comments. Exhibit 19 is not the
final version of the recommended conditions. Rather than discuss these conditions, and then
later changes or amends them, the Hearing Examiner will, at this stage, ignore the proposed
conditions. A detailed discussion of the final version of conditions will be discussed later in
this commentary. This discussion, of one set of conditions, will avoid confusion and
misunderstanding by everyone. However, the Hearing Examiner will make the comment that
Applicant's recommended conditions are based on conditions applied to other approved
mines, conditions that are unique to this application, and others that are designed to limit the
impact of the mine to neighboring properties. The conditions are indeed more restrictive and
costly than any others previously imposed on a mining operation.
Dr. Depew's next area of discussion was the Applicant's compliance with the Lee County
Comprehensive Plan and, more specifically the compatibility and consistency with that
ordinance. This review was a restatement of the his finding contained in his Land Use Study,
Applicant's Hearing Exhibit 19, attached hereto as Exhibit U. The witness was of the opinion
that the subject request was consistent with the provisions of the Lee County Comprehensive
Plan cited in that exhibit.
This witness was also qualified as an expert in Statistical Traffic Accident Analysis, and in that
capacity he testified regarding his Traffic Analysis, Applicant's Hearing Exhibit 32, attached
hereto as Exhibit V. That study concluded;
despite the increased traffic volumes and additional operating mining
activities In the vicinity, the safety record of heavy trucks on Corkscrew
Road has improved since 2000. When Alico Road crash data is reviewed,
only 30% of all crashes involved a heavy truck, despite the fact that over
50% of the traffic on the roadway is comprised on heavy trucks.
The report indicates that truck traffic, generated by mining operations, is less prone to serious
accidents, when compared to passenger vehicles.
Case DC12006 -00026 Page 18 of 70 07-Apr-1 0 -
The Applicant's next witness was Thomas M. Missimer, PH.D. ", who was qualified as an
expert in geology, hydrogeology and waterquality. The witnesses resume is attached hereto
as Exhibit W. Dr. Missimerwas hired by the Applicant, because Kurt Martin, and CDM, was
no longer serving as their engineer. He had reviewed the latter company's grout wall
recommendation. The same was re- categorized as an "hydrologic barrier." The grout curtain
is recommended for the porous limestone layers on the subject site. However, the first or top
layer of material on -site is sand. His recommendation is to provide a slurry wall through the
sand or top layer, and then grout curtain through the limestone, and into the confining layer,
which consists of clay. Mining is limited to 110 feet, or to the confining layer, whichever is
shallower.
Dr. Missimer testified that the grout curtain will only work well in the porous limestone layer;
it does not work in the sandy top layer. The slurry wall is unlike the grout curtain, which is
created by injecting a substance into a hole, bored in the rock, at predetermined spacings.
The slung wall is a bentonite mixture poured into a trench, dug in the surface layer. As the
name implies, it creates a wall through that layer. This wall provides rigidity, so there in no
movement of water through the sand. The grout curtain and slurry wall are used together to
form the hydrologic barrier that the Applicant proposes to restrict or retard, but not eliminate,
groundwater flow. Ninety -five (95) percent of the water flow is through the limestone layer,
so that restricting the flow through the top layer is not particularly significant.
Cross examination of Dr. Missimer was performed by the County Attorney, three Staff
members of the Department of Community Development Staff, and Thomas Hart, Esq.,
representing members of the public. During that examination, the witness described the
r Applicant's use of modeling, monitoring and their Adaptive Management Plan. The final
version of the latter document is attached hereto as Exhibit X. That Plan was amended
during the course of these hearings. Basically, the Applicant will monitor historic, current and
future data, from on -site and off -site wells, to determine baseline levels and current levels of
groundwater. This data is used to create models of groundwater levels, during yearly cycles.
The Adaptive Management Plan provides the flexibility to determine spacing or changes in
the grout curtain, so that water levels are maintained at the levels that were determined for
the period before development occurred.
The hydrologic barrier will be constructed along the northern property boundary, as well as
on the eastern and western sides, as is determined necessary. No barrier is provided, along
the southern boundary. This is the location of the easement for Lee County Utilities wells.
There will be no attempt to interfere with water flow to those wells. It should be noted that this
barrier will be retained permanently on the subject site. The data collected from on -site, and
off -site wells, (the latter owned by other entities) will be provided to the Department of
Community Development, as well as other State agencies. Dr. Missimer presented model
runs to the County. Since this constituted new material not previously reviewed by them,
Staff requested a continuance, of the cross examination period, which was granted. Dr.
Missimer was recalled on October 20, 2009, for further examination regarding the model
runs. I will discuss that testimony now, for the sake of continuity.
14 Hearing Transcript, August 19, 2009, pp. 69 - 155.
Case DC12006 -00026 Page 19 of 70 07- Apr -10 -
ti
Prior to cross examination Dr. Missimer discussed the Adaptive Management Plan. He
amended the Applicant's Adaptive Management Plan, along with his associates Dr: Coulibaly
and Dr. Guo. Their plan was produced with a computer program, known as MODFLOW. - Dr.
Guo is the author of the SEAWAT Code used in one of the MODFLOW modules.
Dr. Missimer15 explained that their Adaptive Management Plan was designed based on five
layers. The use of this number of layers provides for a complicated computer model, but the
characteristics, including permeability, of each layer can be different. This allows the modeler
to use difference values, leading to a more accurate model. The South Florida Water
Management District, the Danish Hydraulics Institute and the U.S. Army, in previous models
for this county, have all treated the Surficial Aquifer as a single layer. The data imputed into
these models come from wells throughout the DR/GR, and specifically wells located in the
mitigation areas, county well sites, wells drilled by the Applicant, and others. Those wells, or
data collection points, cover all points of the compass, within a circle that is at minimum three
miles, from the subject site,
After the model is constructed, the data is imputed, and the model is calibrated. You calibrate
the model by changing cell types until you produce water levels that are close to the
measured water levels in the field. The entire process is geared to creating a model that can
minic real world conditions. The more information that is imputed into the model, the more
accurate the model will become. Dr. Missimer describes this work as dealing in two worlds;
The modeling world and the real world.
The entire purpose of creating this model is for its application to the Adaptive Management
^, Plan {AMP }. This guides the use of the hydrologic barrier. Its name implies that this is not
a fixed operation manual. Rather, it is more off an agreement to review data and possibly
modify or prescribe changes to the hydrologic barrier.
A number of questions, that were propounded to the witness, were deferred to Dr. Coulibaly.
Dr. Coulibaly, a member of Dr. Missimers' company, provided a good deal of input into the
preparation of the AMP. He testified later in these proceedings. The cross examination, by
Lonnie Howard, was directed to the data that was placed in the Applicant's model, and from
where that data was obtained. This examination disclosed disagreement, between Mr.
Howard and Dr. Missimer, as to issues in the modeling effort, but did not appear to disclose
any fatal deficiencies.
Dr. Missimer was also questioned by Dr. Samuel Lee, regarding the Tier 1 system employed
In the AMP. There are five such tiers, within the AMP. There was agreement that there was
confusion in the meaning and application of this plan.
Staff's Case
The Staff began its case with Alvin "Chip" Block's, of the Department of Community
Development. The witnesses resume is attached hereto as Exhibit Y. Mr. Block prepared
is Hearin Transcript, October 7, 2009,
9 PP• 211- 261.
is Hearing Transcript, August 19, 2009, pp 231 - 245.
Case DC12006 -00026 Page 20 of 70 07- Apr -10 -
11-0 �
the Staff Report for this matter. He was declared to be an expert in Land Use and Planning,
especially as it relates to Lee County. Mr. Block's testimony was unusual, in that he provided
the Hearing Examiner only with a chronological history of the case. He gave no testimony
regarding the consistency of the application to the Lee County Comprehensive Plan, or
compliance with the Lee County Land Development Code. Rather than review this history,
which is basically irrelevant to the issues of the recommendation, the Hearing Examiner
would refer the reader to the factual history set out in the Court Order attached hereto as
Exhibit D. There was no significant cross examination of Mr, Block.
Staff's next witness was Andrew Getch," from the Lee County Department of Transportation,
who was recognized as an expert in transportation engineering and transportation planning.
Mr, Getch testified that the Applicant's total number of truck trips, through the life time of the
project, was probably low, based on his calculation of the amount of fill and limestone to be
removed from the site. This may or may not be correct. The proposed acreage to be mined
was actually reduced during the course of the hearings, and after Mr. Getch's testimony.
That made his, and the Applicant's, calculation of total trips throughout the life of the project,
inaccurate. He also represented that the use of Corkscrew Road, as proposed, between the
project entrance and Alico Road, would lead to the eventual deterioration of the road surface,
and it failing in terms of structural integrity. He did say that, based on the Applicant's Traffic
Impact Statement, t -ere wil be an acceptable level of senvice, at all times: on the subject
roadway Finally, in regard to the Applicant's proposed conditions, specifically, those
requirements placed upon truck driver's serving the site, the witness believed that they are
unenforceable, as a practical matter.
The next witness produced by the County Staff was Dr. Glenn J. Rix,18 a Professor at the
Georgia Institute of Technology, who was determined to be an expert in blast vibration,
ground vibrations, human response to vibrations and soil dynamics. Mr. Rix's resume is
attached as Exhibit Z. He outlined the principles governing the blasting process, how to
characterize ground -borne and airborne vibration, the different types of seismic waves, and
the effect on structures that these waves have. Prof. Rix discussed U.S. Bureau of Mines,
Report of Investigation 8507, which derives itself from a study at an howitzer range in Texas.
He concluded that blasting is a complex process, involving ground - bourne vibrations, air -
bourne vibrations, and the response of structures and human perception. It is difficult to
make predictions about the impact of blasting on structures and humans, that is why
monitoring is important in the field. Maintaining peak particle velocities of less than .5 inches
per second reduces the likelihood of threshold structural damage, but does not preclude it.
Humans perceive ground -borne and air -borne vibrations at levels significantly lower than
those that cause threshold structural damage and human annoyance. Dr. Rix's comments
were generalizations and not specific to the subject site. He had not visited the Applicant's
site, nor had he performed any testing at the site. Florida regulations provide that the
maximum peak particle velocity allowed is .5 inches per second at any structure. This is the
same acceptable level adopted in the above cited U.S. Bureau of Mines Report. The
Applicant has agreed to be contractually bound, to a peak particle velocity limit of .35 inches
per second. This is within the range that Dr. Rix deemed acceptable.
17 Hearing Transcript, August 20, 2009 pp. 3 - 101.
_ ie Hearing Transcript, August 21, 2009, pp. 3 - 56.
Case DC12006 -00026 Page 21 of 70 07- Apr -10 -
1 t
The Staff next called Harry A. Campbell19 the Chief Traffic Engineer and Manager of the
Traffic Section of the Lee County Department of Transportation. The witnesses resume is
attached hereto as Exhibit AA. Mr. Campbell was declared to be air expert in the fields of
traffic engineering, traffic operations, traffic studies and traffic data analysis, The witness
gave an overview of the various segments of Corkscrew Road, He also discussed the
testimony of Dr. Depew, whose conclusions he disag,eed with because he believed that
comparable corridors have to be used to provide a proper comparison. He made the
conc:usion that "as the number of trucks increase, the exposure increases and therefore the
number of crashes involving trucks will increase," He also noted that the Applicant's
requested number of trips, i.e. 2.400 round trips, actually doubles the number of trucks
currently using the subject segment of Corkscrew Road. The other problem is when a loadeo
dump truck needs to turn, it takes 3.5 times as long as a passenger vehicle, and that well
cause delays along the roadway. Trucks take longer to break, or slow down, and longer to
accelerate. Eighty percent of fatal accidents involve medium to heavy trucks, on non
interstate highways. He drew the conclusion that "an increase in large trucks may (emphasis
added) increase traffic operational and safety problems." Further. 'the absence of
improvements to mitigate the impacts caused by that magnitude of truck traffic, it will be less
safe."
The witness also indicated that there is no Federal, State or County standards that exist,
which determine how many trucks, on a given class of road, is excessive. He believes that
given the current condition of Corkscrew Road, and improvements proposed by the Applicant,
that the requested amount of truck trips will very likely result in the public experiencing
additional delays, as a result of trucks accelerating from exiting the site, and slowing down
to enter the same. He concluded that the Applicant's request results in unacceptable levels
of truck traffic. Upon further questioning from the Hearr'ng Examiner, the witness could not
define what constituted an acceptable level of truck traffic. Nor did the Deoartment of
Transportation attempt to determine what an acceptable level of truck traffic should be.
When pressed on the issue of a number between one truck trip per day, and 2,400 truck trips,
per day, he commented, that up to 10 new trips per day would not be noticeable by the public.
Roland Ottolinni,20 Director of Lee County Division of Natural Resources, a Registered
Professional Engineer, was the Staffs next witness. The witnesses resume is attached
hereto as Exhibit BB. He was declared to be an expert witness, in the field of water resource
management and surface water management. Mr. Ottolinni provided an overview of what
his department's duties involve, and how they respond to applications similar to this request.
He noted that in eastern areas of Lee County, the topography generally falls off a the rate of
one foot per mile. However, at the subject site this fall is 4.5 feet per mile. The northeast
corner of the site has a elevation of 27 feet NGVD, to the southwest the elevation is 18.9 feet .
NGVD, or a 8.1 foot drop across the property. Groundwater generally follows the drop of the
land, and the steeper the drop, the more dramatic the effect will be on the groundwater level.
The concern is that creating a lake, on the subject property, will cause a reduction in the
groundwater level in the mitigation areas directly north and east of the Applicant's property,
19 Hearing Transcript, August 26, 2009, pp. 8 - 113.
20 Hearing Transcript, September 25, 2009, pp. 3 - 82.
Hearing Transcript, September 29, 2009, pp. 99 - 109.
Case DC12006 -00026 Page 22 of 70 07 -Apr -10 -
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and the water wells of private landowners. He did not voice an opinion whether the
Applicant's proposed hydrologic barrier would correct this problem.
The witness then discussed the other area of concern to him that is the surface water flow.
The property is currently used for agricultural purposes, and has a berm that surrounds the
site. However, in a number of areas, generally along the northern boundary, there are
breaches of of the barrier. These breaches allow surface water to flow onto the subject site.
The Applicant proposes construction of new berms, totally surrounding the site, which will
block all water to the site, and send it to the west of the property, exacerbating the flooding
along Burgundy Farms Road. It may also affect the mitigation area to the north by further
stacking water on that property. Finally, it may impact the wetlands on the subject site, and
the wetlands on the County's property, described herein as the "finger parcel," by denying
those areas the flow they are currently receiving.
On cross examination, it was noted that the witness testified that the existing berms could be
repaired and returned to their original condition. The witness could not identify if the berms
were originally on the property. Further, that he based his comments on the condition of the
property, not from personal inspections, but from information, or statements, from other
members of his Staff.
Staffs next witness was Dr. Samuel Lee,' with the Lee County Natural Resources Division.
The witnesses resume is attached hereto as Exhibit CC. He was determined to be an expert
in the professional engineering fields of surface water and groundwater modeling,
management, design, hydrology and hydraulics. Dr. Lee's function, with respect to this
^ project, is not to review the hydraulic barrier design, a field in which he is not a expert; but,
rather, review the hydraulic analysis, either by modeling or review of actual data. After which
he determines the possible areas of concern to the natural resources of the area. He found
that, based on the Applicant's submissions, the detail of the hydraulic barrier implementation
are currently unknown, or at least at the time of his initial testimony. The witness also
commented on the defects of the Adaptive Management Plan submitted by the Applicant.
I am omitting a discussion of those defects, because the Plan was revised during the course
of the hearing, and I think it would be appropriate to review only the final version. The original
version was to be implemented in four phases, and Dr. Lee had concerns over the
implementation process. The phasing of the Plan was modified in the final version. Likewise,
there were concerns expressed regarding the determination orformalization of baseline data;
this was also modified later. The undersigned found that Dr. Lee's initial testimony appeared
to say that he could not recommend the implementation of the hydraulic barrier, or the
Adaptive Management Plan, because he lacked data, to be supplied by the Applicant, to
render an opinion.
The second part of Dr. Lee's testimony was on groundwater modeling. First, he reviewed
what that term encompassed, and the various software, code selections, data and other
preparation that goes into creation of a computer model. The purpose of the model is to
mimic what is happening in the field. Remember, this is a groundwater model. One cannot
just visit the site and determine what is happening underground. Dr. Lee believes he found
numerous inconsistencies, errors and other problems with the Applicant's model, with the
21 Hearing Transcript, September 25, 2009, pp. 83 - 196.
Case DC12006 -00026 Page 23 of 70 07- Apr -10 -
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result that it could not be accepted as a decision making tool. The Applicant, as discussed
later, °reinvented the wheel,' and submitted a modified model.
The next Staff witness was Tony Pellicer22, Operations Manager in the County Division of
Natural Resources. The witnesses resume is attached hereto as Exhibit DD. He was
declared to be an expert in the fields of water quality, surface water monitoring, storm water
permitting and chemical constituency issues. After an overview of the functions of his
division, the witness discussed the problems with respect to the proposed monitoring. Based
on his understanding of the Adaptive Management Plan, it uses on -site goals versus off -site
goals, at least in the initial stages. The project baselines were determined without
comparison or correlation to off -site water levels. He went on the give examples of why that
information is critical for monitoring. Again, the Adaptive Management Plan was later
amended in the hearing process.
Mr. Pellicer also discussed water quality. He showed photographs of other mine sites,
depicting stains and spill areas. The Hearing Examiner specifically finds what happens at
other sites is irrelevant to the subject application. He discussed algae blooms that occurred
at other sites, and the proximity of this site to County wells. His discussion dealt with issues
that may be occurring at any other mine in Lee County. The witnesses testimony, regarding
other mine sites, is speculative and not relevant to the subject application.
Aaron Martin,23 from the Lee County Community Development, was declared an expert in
environmental sciences, as it pertains to the Lee County Comprehensive Plan. The witnesses
resume is attached hereto as Exhibit EE. He testified regarding two issues, setbacks and
environmental impacts, on the site and adjacent preserves. He indicated that stockpiling of
materials could occur adjacent to upland communities, and this could result in excessive dust
and breaches into the reserve: He then discussed what could occur to the vegetative
community, as a result of a change in the hydro - period. Basically, the vegetation could
become stressed and die or become susceptible to disease and parasites. Since the witness
is not an expert in hydro - periods, he could not testify as to whether this would occur. He did
voice concern with the tier process of the Adaptive Management Plan. This tiered response
was modified in that Plan, after the witnesss testimony. Finally, he mentioned the absence
of a monitoring protocol for the vegetative communities. The monitoring conditions of the
FDEP permit require monitoring of exotics and restoration plants. In his summation, he
concluded that the project is inconsistent with a number of Lee County Comprehensive Plan
Goals and Policies, but did not provide any factual basis for these conclusions.
Becky Sweigert,24 a Principal Environmental Planner, with Lee County, was declared to be
an expert in wildlife ecology. The witnesses resume is attached hereto as Exhibit FF. Ms.
Sweigert found inconsistencies, with various policies of the Lee County Comprehensive Plan,
based on a lack of information, regarding protection measures for the burrowing owl and
caracara, and lack of a proper littoral shelf. Additionally, the parcel is within the secondary
22 Hearing Transcript, September 29, 2009, pp. 4 - 98.
23 Hearing Transcript, September 30, 2009, pp. 3 - 29.
24 Hearing Transcript, September 30, 2009, pp. 29 - 80.
Case DC12006 -00026 Page 24 of 70 07- Apr -90 -
zones for black bear and Florida panther, as determined by the U.S. Fish and Wildlife
Service. This witness provided a Power Point slide that depicted panther positions, based
on telemetry data. See Exhibit GG attached hereto. This data positions collared panthers
and has been collected over a 20 year time frame. The data does not depict a single
panther position on the subject site. It does provide a clear depiction that the panthers are
moving through the mitigation banks and the conservation areas. There have been two
panther, killed, by motor vehicles, in 2006 and 2007, in proximity to the subject property. Ms.
Sweigert commented that there have been no additional panther fatalities, since the Lee
County Department of Transportation extended fencing along these road corridors.
Susie Derheimer,25 of the Department of Environmental Sciences, was presented and
qualified as an expert in the field of environmental planning, as it relates to the Lee County
Land Development Code. The witnesses resume is attached hereto as Exhibit HH. She
testified that the application does not comply with the open space requirement of Section 10-
415(a) of the Lee County Land Development Code. The witness went on with her
calculations; however, since her testimony, the size of the subject lake was amended by the
Applicant, making those calculations not applicable. She then discussed the neighboring
flowway, that flows northeast to the southwest, and is contained in the mitigation and
conservation areas. The subject site was, at one time, part of this system. However, since
commencement of its agricultural uses, decades ago, its berms removed it from the flowway.
Staffs next witness was Matthew Noble" who was declared to be an expert in the Lee
County Comprehensive Plan, the Lee County Land Development Code and transportation
planning. The witnesses resume is attached hereto as Exhibit II. Mr. Noble began with an
overview of the DR /GR, including photographs of the area. He also attempted to play a
sound tape of a blast at a nearby mine. This was objected to by the Applicant, on the
grounds that the witness was not an expert in sound or acoustical engineering. The Hearing
Examiner sustained that objection. Rather than listen to the tape, the Hearing Examiner
agreed to visit a mine, within the DR/GR, to actually witness a detonation.
Mr. Noble then went on to describe the Corkscrew Road area as a community of rural
character; incorporating the residential areas along Burgundy Farms Road, Six L Farms
Road, Carter Road Loop and even the Wildcat Run Subdivision. He described the County
Store, on Corkscrew Road, as a community hub. The witness also described the dangers
of truck traffic, noise, dust and light pollution that he believed would emanate from the
proposed site. His next comments related to a history of prior mine applications in this area.
He then started to summarize the testimony of other Staff witnesses.
The next area of testimony was a review of aerial photographs of the property, commencing
in 1944. The witness pointed out the flowway in this area of the County, which is known as
the Flint Pen Strand. This is the flowway that the subject parcel was originally located in.
The photographs clearly depict the development of the site as an agricultural parcel, and the
placement of ditches and berms within the site. He claims that the photographs depict the
25 Hearing Transcript, September 30, 2009, pp. 81 -150.
2a Hearing Transcript, September 30, 2009, pp. 151 -175.
Hearing Transcript, October 3, 2009, pp. 4 -182.
Hearing Transcript, October 6, 2009, pp. 6 - 297.
Case DC12006 -00026 Page 25 of 70 07- Apr -10 -
110
1'1 D
remnant flowway on the site. He also suggested that the approval of this application will
preclude any flowway restoration or habitat restoration. He also claims that there is water
flow through the property, by way of breaks in the breaches in the north berm. This break
takes water that would otherwise drain through Burgundy Farms Road, and lets it flow south
through the subject site to Corkscrew Road. In support of this assertion, Mr. Noble presented
a short video, depicting an un- scientific demonstration of waterflow, and grass floating on top
of it.
There was a presentation on what road segments would receive the traffic from the subject
site. He also discussed the increase in truck traffic, the neighbors' fear of these vehicles, and
the provisions of the Lee Plan that they are inconsistent with.
Finally, Mr. Noble discussed the potential danger to wildlife caused by the project. Like a
good deal of his testimony, he relied on the testimony of other members of the Staff, for
support of his position. On his second day of testimony, Mr. Noble took the hearing on a
photographic tour of Alico Road and Corkscrew Road. This testimony concluded the
County's initial presentation.
The County called William F. Spikowski'7 as an expert in land planning. The witnesses
resume is attached hereto as Exhibit JJ. This testimony was actually taken out of order, on
October 13, 2009 to be specific. It is included In this portion of the discussion of the County's
case, to maintain continuity in the presentation. The witness discussed three issues. First,
the amount of land that was needed for mining. Second, the amount of land that is currently
approved for mining uses. Third, how much additional land is needed for mining. He
^ described the uses for rock in residential, commercial and road construction. He indicated
that this need for rock is both within and with out Lee County. One -half of the state's rock
supply comes from Miami -Dade County. This is because the rail system on that side of the
state is very good for transportation of the product in a northerly direction.
Mr. Spikowski then focused on the method he employed in determining the future rock needs.
Based on that calculation he concluded that we needed an additional 821 arces of mining to
meet demands through the year of 2030. On cross examination the witness acknowledged
that he was not familiar with recent limitations on mining activity in Hernando County, or of
a recent Court decision concerning Miami -Dade mines. When questioned about the Strategic
Aggregates Review Task Force Report, he admitted to using parts of the report in his
presentation. He commented that the report dealt with statewide issues, and was not a local
prospective, and that it contained findings that were "appallingly wrong."
Cross examination went into the specifics of rock quality, limitations on production to remain
below DRI Thresholds, road building plans, and other issues that were not taken into account
In Mr. Spikowski's direct testimony. Basically, he made calculations by concluding that future
growth in the next 20 years will be the same as in the past. This is a most unscientific -study.
27 Hearing Transcript, October 13, 2009, pp. 53 - 440.
Case DC12006 -00026 Page 26 of 70 07- Apr -10 -
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Applicant's Rebuttal
The Applicant's first rebuttal witness was Frank J. Lucca,'e who was recognized as an expert
In blast engineering. His resume is attached as Exhibit LL. He is the owner of Terra
Dinamica LLC, which are active in the explosives business. Mr. Lucca was also the author
of a study, commissioned by the Board of County Commissioners (Contract Number 2983,
CN 04 -17), to determine if land development blasting can be done without damage or other
detrimental impacts to residences, other structures, public utilities, or groundwater resources,
given the geology of Lee County. That study was reported in June of 2005, and comprises
Applicant's Hearing Exhibit 87. The executive study comprises Applicant's Hearing Exhibit
86.
Mr Lucca concluded, in his study, that peak particle velocities between 0.3 and 0.5 are
extremely conservative to any type of blasting within the County. Blasts within that range
should have no adverse impact on structures, or anything else. Unlike the County's expert
on blasting, this witness actually visited the subject site and reviewed the Applicant's blasting
plan. He expressed the opinion that it was a conservative plan and that the potential for blast
damage, within the subject area, is nonexistent at the levels set out in the application. This
includes the grout wall proposed by the Applicant. Likewise there is no potential for damage
to County infrastructure (i.e. wells) along Corkscrew Road. In cross examination the witness
did admit that residents will feel the shaking or vibrations from the blast, and it could cause
pictures on a wall to move or fall.
Donald Alexander Bruce was the Applicant's expert witness in hydraulic barriers. Mr.
Bruce's resume is attached hereto as Exhibit MM. The witness teaches on a regular basis
at the Colorado School of Mines, the National Highway Institute, and short courses for various
Departments of Transportation, as well as at trade shows, seminars and workshops, all
throughout the United States. He began his testimony describing this has worked on grout
curtains for Lake Okeechobee. In regard to the case at hand, he has examined the final
version of the Applicant's Adaptive Management Plan. He described the site as wide open
with no overhead restrictions and the rock is not exceptionally difficult to grout, or to drill in.
He classified the project, from a technological point of view, as a very simple straightforward
hydraulic barrier. The hydraulic gradient is very, very light. The parameters that Dr. Missimer
has modeled can be achieved in the ground and can be satisfied quite readily. The gradient
is the difference between the elevation of the groundwater on the upstream side of the
barrier, or the outside, and the inside. Basically, the difference in the water table on either
side of the barrier. While the experts debate the modeling, the gradient is no more than 10
feet. in other projects that the witness is familiar with, that gradient may be 10 or 20 times
that number.
The witness also discussed the useful life of the barrier. In South Africa, grout curtains are
installed in underground mines, with very acidic conditions, and their useful life is in excess
of 10,000 years. There is nothing in the soil or rock of the subject site that would deteriorate
the barrier. The witness concluded that the grout curtain would become part of the geology
20 Hearing Transcript, October 7, 2009, pp. 51 - 9o.
29 Hearing Transcript, October 7, 2009, pp. 91 - 210.
Case DC12006 -00026 Page 27 of 70 07- Apr -10 -
of the site in perpetuity. He concurred with the prior witness that blasting would also not affect
the curtain. Working in shafts under the Harlem River, in New York City, blasting is
conducted within 30 or 40 feet of barriers, without ill effect.
The product used for these curtains is bentonite, sodium montmorillonite clay, which occurs
naturally and would have no detrimental environmental issues. Finally, he discussed the
methods for moditying the barrier, if flow actually needed to be increased. This can be done
by several methods. First, use a backhoe to create notches in the slung wall on top of the
barrier. He discussed the use of a testing process, creating a dewatered box on -site to
measure the effectiveness of the system. This test would determine the residual permeability
of the barrier. The witness concluded that the hydraulic barrier would be able to be
constructed in an environmentally friendly fashion and do exactly what it is supposed to do.
On October 13, 2009, Applicant produced Richard Friday,30 the Chief Financial Officer forthe
Applicant. As a witness, Mr. Friday testified regarding the demonstration blast that had taken
place the day before October 12, 2009. The blast, actually a series of approximately 26
blasts, was not to exceed .35 peak particles per second, measured at one thousand feet from
the detonation site. The purpose of the blast, requested by the Hearing Examiner, was to
determine the noise it generated. It was not to be a scientific test for any issue relevant to
vibrations. The Hearing Examiner notes that the noise level was not significantly high, and
would question if it could actually be heard from within a structure at the 1,000 yard distance.
A vibration, or movement of the ground, was also noted. What effect that may have within
a structure is unknown. Mr. Friday testified that the test blast was representative of a typical
blast, at the existing Younquist Mine. That the blast was in the top 96 percent, in terms of
seismographic results, of their blasts, and that the noise that eminated from the blast was
typical. Mr. Friday also testified that the Peak Particle Velocity, measured 1.975 feet from
the blast, was 0.13.
Ryan Shute,31 a Registered Professional Engineer, with Moms Depew Associates, was again
called as an Applicant's expert in surface water engineering. He testified that, based on Lee
County Aerial Photographs, the subject site's use as an agricultural site began in 1968.
Additionally, there were agricultural uses on the property, to the north of the Applicant's
parcel, known as the Port Authority property. These all had the effect of diverting surface
water flow to the west. By 1972, the berm system, on the Applicant's property was in place.
The was no wetlands present on the subject site and the agricultural portion of the Port
Authority property. Basically, there was no surface water flow, because the water flow was
fully restricted by the berm system.
In the late 1990's, the Port Authority removed the agricultural configuration of its property,
and returned that area to a preserve, similar to its state in 1968. The Applicant's property is
untouched. The surface water flow through the preserve area was returned to its northeast
to southwest direction, but not across the subject property. The witness also described an
Environmental Resources Permit issued to the Port Authority that allowed it to place fill (from
airport construction) on one 20-acre site, and another 30 to 40 acre site, to a height of six
90 Hearing Transcript, October 13, 2009, pp. 34 - 52.
31 Hearing Transcript, October 13, 2009, pp. 112 - 140.
Case DC12006 -00026 Page 28 of 70 07- Apr -10 -
110
feet, immediately north of the Applicant's property, in essence further restricting water flow
onto the latter property. This fill has the effect of channeling water flow onto property
adjacent to, and west of, the Applicant's property. This testimony refutes the assertion by
Staff witnesses that there is ground flow on the subject site through breaches in its berm
area. Any flow on the Applicant's property arises from solely on site sources, channeled
through agricultural ditches on the site. He also indicated the presence of a flow through the
Burgundy Farms community, specifically through ditches that drain into the Corkscrew Road
ditch. The witness concluded with the opinion that the north perimeter berm, proposed by the
Applicant, will not impact the Burgundy Farms area for flooding.
Ted Treesh" was recalled by the Applicant, as a- exoert in transpottation planning. He
confirmed the posted speed limit, on Corkscrew Road, between Alico Road and the Lee
County line, as 55 MPH in the daylight, and 45 MPH at night. Following which he reviewed
the Applicant's proposed amended road improvements those contained in the conditions
presented in the aopendix to this reconimenaation. Mr. Treesh then took the traffic safety
formula supplied by Mr. Campbell, of the Lee County Department of Transportation, and
applied the same to two segments of Corkscrew Road, that is Ben Hill Griffin to Alico Road,
and Alico Road to the Lee County Line, Since, Mr. Campbell's formula was based on 100
million miles traveled, Mr. Treesh modified the equation, for lower volume levels, to one
million miles. This simply moved the decimal point. Mr. Treesh conclicled that the accident
rate does not have a direct correlation to any increases in traffic. The Staff, from the County
Department of Transportation, objected to the use of this formula in this location, because
of the low amount of data available for the location. The Hearing Examiner notes that the
formula was the one proposed by Staffs witness, Mr. Campbell.
Dr. David Depew33 was then recalled. He first testified regarding the change in Staff's
position, from prior applications, regarding consistency with the Lee County Comprehensive
Plan. Specifically, he asserted that, because blasting activities are now regulated by the
State Fire Marshal, the Staff cannot support a recommendation of approval with blasting as
a permitted use, because the County has no control over the activity. He then gave his
history of submission through the County. Commenting on other Staff witnesses, he
disagrees with the assertion that this area of Corkscrew Road is a rural community, having
its center at the Community Store. This is compounded by the fact that mining already exists
in that future land use, and in an area of the County with the absolute lowest density. Dr.
Missimer's testimony revealed differences between experts opinion of the Applicant's
modeling, with respect to data imputed into it, determination of basis line figures and selection
of monitoring sites. His cross examination was lengthy, and, while revealing professional
disagreements, it did not reflect that the concept of the AMP was unsound.
Dr. Thomas M. Missimer appeared before this Hearing Examiner on two additional
occasion S.34 I will deal with those sessions collectively in one discussion. Dr. Missimer was
not employed for the purpose of designing or constructing the hydrologic barrier The witness
32 Hearing Transcript, October 14, 2009, pp. 4 - 30.
33 Hearing Transcript, October 14, 2009,
P pp. 31 - 140.
34 Hearing Transcript, t, October 20, 2009,
pp. 6 -218.
Hearing Transcript, October 27, 2009, pp. 30 - 280.
Case DC12006 -00026 Page 29 of 70 07- Apr -10 -
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began his testimony by characterizing the differences between his modeling efforts, and the
Adaptive Management Plan (AMP). The purpose of the AMP is to manage groundwater
levels at the Applicant's site, using a combination of modeling to predict water levels.
Modeling is the vehicle used to predict those water levels. This is accomplished by
monitoring well sites, on -site and off -site, to collect and evaluate real data and input the same
into the model. The model takes this data, along with other information, including the
ground's hydraulic conductivity, and water recharge. This will result in the actual design of
the hydriodic barrier, and any temporary or permanent measures, to properly recreate the
proper resistence to groundwater. The AMP is designed to be flexible to allow adaptation and
changes in the future.
It is implicit that the effectiveness of the barrier will be determined at its time of construction,
as well as in the future, and modifications (if any) implemented. Dr. Missimer described, in
detail, his understanding of the barrier's construction. Then he turned his attention to the
AMP. This plan is less of a plan, but more of a flexible guide of when to respond to inputted
data, to maintain ground water at appropriate levels.
This is intended to be a tiered system. Meaning that at predetermined events, i.e. completion
of mining in Phase 1, the model will govern the design and placement of the barrier. Cross -
examination reflected professional disagreement in the Plan and monitoring. The Hearing
Examiner reviewed this as actually a healthy environment. It appears clear that there is
genuine disagreement between the experts, but it did not rise to the suggestion that the Plan,
the Model, or the Barrier, would not work. Rather, that Dr. Missimer, as well as his
associates, later appeared to take the comments of Staff to heart, and employed the same
^ in the second version of the AMP. This Hearing Examiner has avoided specific review of the
testimony of all of Dr. Missimer's sessions, because of their extreme scientific detail, and the
fact that the AMP itself was reviewed, thereby negating concerns brought to light in Dr.
Missimer's cross examination.
The next rebuttal witness was Jeffrey Straw, who had previously testified in this proceeding.
He reviewed the State Fire Marshal's Office from 2002 through 2007, and determined that
24 complaints were filed, for blasts within the "Corkscrew Road Area. ". Those complaints
were investigated, by that office, however, no violations were charged against any mine
operators. There were 17,502 blasts within that area, during the calendar years of 2006
through 2008. Some mines decreased the number of holes per blast, therefore, creating the
necessity for more blasts. The reason, for this was to reduce the impacts to nearby property
owners. The witness testified to complaints on mines, at locations other than the subject
property. Since the subject site is undeveloped, it has no complaints filed against it. The
purpose of the testimony from this witness, presumably, was to dispel the assertion of
extensive damage from blasting, at other mine sites.
On October 30, 2009, Dr. David Depew" was recalled for the final time. This time to
specifically discuss the application for a mining operations permit process. The witness was
questioned about various provisions of the Lee County Land Development Code. The basic
35 Hearing Transcript, October 27, 2009, pp. 9 - 30.
as Hearing Transcript, October 30, 2009, pp. 12 - 54.
Case DC12006-00026 Page 30 of 70 07- Apr -10 -
'40
purpose of which was to identify which issues are material to the rezoning process, and what
issues are more appropriately left for review by Staff during the development order process.
The Applicant's position is that certain issues raised by Staff should not be the subject of a
zoning hearing. Rather, the same is to be reviewed during the development order process.
This was directed to the examination of Dr. Missimer and his associates, regarding their
Adaptive Management Plan. Cross examination commenced regarding what issues are
appropriate for review by the Hearing Examiner, and Board of County Commissioners, and
which should be subject solely to Staff review.
Dr. Kapo Coulibaly37 was the Applicant's next witness. The witnesses resume is attached
hereto as Exhibit NN. He was recognized as an expert in the field of hydrology and
associated computer modeling. Dr. Colibaly, along with Dr. Missimer and Weixing Guo,
created the model used in the Applicant's Adaptive Management Plan. A fair amount of the
questions tendered to Dr. Missimer, during his examination, were deferred to Dr. Colibaly
because of his deep involvement in the creation of this model. Interestingly, at the beginning
of his questioning, the witness acknowledged that the critique of Mr. Howard, relating to water
storage in the lake, was probably correct, and that he had inadvertently placed a higher
storage in the lake. He adjusted the model accordingly. He also commented that this
oversight probably had very small impact on off -site calculations. He was then cross
examined on various aspects of his modeling efforts. Some of these questions, posed by Mr.
Howard, were enlightening, in that it showed the use of values, that were out of normal range,
and why the witness employed the same. Dr. Colibaly was then cross examined by Dr. Lee,
in what I can only describe as a disagreement in methodology, understood only by the
witness, and his examiner, but no one else present. This underlines the concern that this is
not the forum to reviewed, make a decision on these technical issues. That is what
development order review is about. This will be discussed later in this presentation.
Staff's Rebuttal
Harry CampbeF returned as a witness.'A first to zebu; the assertion, that the County could limit
the use of Corkscrew Road, west of Alico Road to Interstate 75, by placing weight restrictions
on that segment. He testified that Section 316.555, of the Florida Statutes, gives the County
the authority to apply weight limits, under certain conditions, but none of those conditions
exist with respect to this application. He went on to critique Mr. Treesh's determination of
crash rates. He concluded with the statement, "But predicting what crashes are going to be
in the future is going to be extremely difficult because there are so many variables affecting
this. It could be higher, it could be slightly lower. To say what the crashes might be i ,he
future is very speculative. "'
Chip Block also testified again .40 This time to introduce documents into the record and to
provide a more detailed history of the case. With emphasis on when certain information was
37 Hearing Transcript, t, October 30, 2009,
pp. 55 - 179.
38 Hearing Transcript, November 3, 2009, pp. 4 - 20.
39 Hearing Transcript, November 3, 2009, page 17, lines 19 through 22.
40 Hearin Transcript, November 3, 2009,
9 p pp, 21 - 38.
Case DC12006 -00026 Page 31 of 70 07- Apr -10 -
110
requested of the Applicant. This was done because the Applicant changed their request from
a dirt mine, to a limerock mine, which requires additional information.
Becky Sweigert returned for the purpose of updating telemetry data, regarding the Florida
panther.41
Lee E. Werst, Jr., of the Natural Resources Division, appeared as an expert in well field
protection, well water permitting and groundwater resource management.42 Mr. Werst
placed into evidence, or had judicial notice taken of, a number of county ordinances and well
field approvals that prohibit mining or excavation within a 500 -foot radius of an existing well
head. The Applicant's Master Concept Plan, in all versions, clearly depicted that excavation
was outside that prohibited area. This is testimony about a non - issue, since all parries clearly
understand the county ordinance.
Dr. Samuel Lee returned for his final presentation-43 He began by discussing USGS
Guidelines, and the fact that the Applicant's Adaptive Management Plan did not comport with
those guidelines. He also commented on the fact that a water budget was not included in the
model, and that the model had other deficiencies.
Matt Noble 44 concluded Staffs rebuttal by a historical review of prior mining cases, and
rezonings within the DR/GR. Actions in other cases, and testimony therein, really has no
probative value to the current application. The Hearing Examiner repeatedly asserted that
his obligation was to make a recommendation on the evidence and testimony as it relates to
this request. Testimony, findings and comments in older cases violate the Applicant's right
^ to due process, because they have no way to cross examine that material. Mr. Noble then
went on to comment on the testimony of other witnesses that testified in this matter. He
reiterated County Staffs position on water draw- downs, buffer, noise, truck traffic, residential
quality of life and the issue of where new mines are needed. His examination was interrupted
to have Brad Browning, an expert in environmental planning, testify that, on October 26, 2009
at 9:45 A.M., he witnessed a Florida panther crossing Corkscrew Road, just west of the Alico
Road intersection.
Mr. Noble then suggesteds that the application was inconsistent with Policy 5.1.5, Objective
77.3, and Policies 77.3.2 and 77.3.3 of the Lee County Comprehensive Plan and various
other sections of the Lee County Land Development Code.
The Public and Third Party Interests:
Generally, every hearing day, at approximately 4:00 P.M., testimony from Staff and the
Applicant ceased, and the proceeding was opened up for public testimony and submission
of evidence. Consequently, thts input continued throughout the hearing process. The
41 Hearing Transcript, November 3, 2009, pp. 39 - 38.
42 Hearing Transcript, November 3, 2009, pp. 51 - 58.
43 Hearing Transcript, November 3, 2009, pp. 59 - 96.
44 Hearing Transcript, November 6, 2009, pp. 21 -110.
Case DC12006 -00026 Page 32 of 70 07- Apr -10 -
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undersigned has decided to review and discuss that testimony and submissions, at one time,
rather than chronologically.
The public participation, in this hearing, was extensive. It included residents from the nearby
communities of Burgundy Farms and 6 -1- Farms. Those individuals voiced concern and
opposition to the project, based on increased truck traffic and related safety issues, blasting
impacts, especially vibrations and its impact to their property, noise from traffic and plant
operations, lighting and dust issues. These residents may well feel impacts, from the
Applicant's mining operations, on a daily basis. There were other individuals, from locations
further to the west, who expressed concern mainly with the increase in truck traffic, along
Corkscrew Road, especially, west of the Alico Road Intersection. That area has higher
residential densities,'and commercial zoning district, along Corkscrew Road. The residents
do not have any faith that the traffic conditions proposed by the Applicant will decrease truck
traffic. Finally, there is a segment of the public that believes that the subject proposal will
have environmental impacts. Those impacts include negatively impacting the Florida panther,
wading bird populations, and others. There were several individuals, who were qualified as
expert witnesses, in various fields, who also testified. It should be noted that some of them
were paid for their presentations, by members of the public or other interested parties.
Kim Trebatoskil, a senior ecologist with Kevin L. Irwin, Consulting Ecologist, testified on
behalf of the interests of EarthMark Southwest Mitigation Bank, owner of the 632.4 -acre
Corkscrew Mitigation Bank, located on the east side of the subject property. The witnesses
resume is attached hereto as Exhibit 00. She was recognized as an expert in environmental
planning, including the Lee County Comprehensive Plan, and wetlands ecology. A large
^ portion of her client's mitigation bank (257.7 acres) is comprised of hydric pine wetands,
which has a short hydro - period. Much of the time that wetland is in inundated, in saturated
soil, with periodic fluctuation of a few inches, above the soil during rain events. She asserted
that a change in surface groundwater of .1 to .2 feet could reduce the hydro- period of the
hydric pine flatwood by 50 percent. She then discussed the elevation of her client's property,
in relation to the Applicant's. She believed, but had no other proof, that the Applicant's grout
curtain was risky. This comment was well beyond her expertise. She also expressed a belief
that the Applicant's proposal was not consistent with the Lee County Comprehensive Plan.
Sometime following Ms. Trebatoski's testimony, EarthMark, through there Attorney, withdrew
any opposition to the Applicant's Request. This appeared to be in exchange for the
Applicant's increasing the size of the lake setback on the eastern property line, to 2,100 feet.
That being the case, the Hearing Examiner is disregarding Ms. Trebatoski's testimony, since
her client appears to be of the position that the increased setback eliminates any impacts to
their property.
Michael Roeder48, Director of Planning at Knott, Consoer, Ebelini, Hart & Swett, P.A.,
appeared as a witness, on behalf of Bill Lytell, Kathy Lytell, and the Wildcat Run
Homeowner's Association. He was declared to be an expert in zoning and land use matters.
Mr. Roeder indicated his testimony was limited to compatibility issues to the nearby
residential uses. He made one significant initial point. That is the residents west of the
45 Hearing Transcript, August 19, 2009, pp 245 - 286.
n
48 Hearing Transcript, August 20, 2009, pp. 102 - 230.
Case DC12006 -00026 Page 33 of 70 07- Apr -10 -
Corkscrew /Alico intersection have one major issue, traffic, and specifically dump trucks. That
roadway segment passes through relatively extensive residential and commercial
development. The residents east of that intersection have the same issue, but a variety of
additional issues that affect their quality of life; specifically, noise, blasting damage, dust and
air qualify, light pollution, and visual pollution. That road segment passes through residential
areas of very low density and with agricultural zoning districts, similar zoning districts with
large scale agricultural uses, and other mines. Mr. Roeder believes there is a distinct
difference between these two areas. He also believes that the Board of County
Commissioners' decision in the Schwab Materials and the Estero Group applications are
dispositive of the issue of the compatibility of mines in this area. The Hearing Examiner is
of the opinion that all applications must be reviewed independently of other submissions, and
a recommendation made based on the facts and law of each submission. The witness
continued on with examples of what facts, in his opinion, constituted inconsistency with the
Lee County Comprehensive Plan.
Jason Lauritsen 47 testified on behalf of this the Corkscrew Swamp Sanctuary, where he is a
an Assistant Director. The witnesses resume is attached hereto as Exhibit PP. Mr. Lauritsen
was qualified as an expert in wood storks and wood stork ecology. The witness took the
hearing on a narrative of the history of the property, and review of the wetlands lost during
its development as an agricultural site. The wetlands are used by wood stocks during the
winter months. He described in detail wood stock activity at the Corkscrew Swamp
Sanctuary. He then reviewed wood stork activity at the Applicant's site, and found foraging
events on an interior agricultural ditch and similar activity in a ditch right next to the subject
site. He discussed the littoral shelf to be constructed on the banks of the proposed lake, and
the fact that if would not concentrate the fish or food, in an area accessible to the wood stock.
This problem was eliminated in the final and recommended version of the Master Concept
Plan.
Ellen Lindbled,48 Director of Planning and Environmental Compliance, Lee County Port
Authority. After questioning it was determined that she was not giving testimony as an expert,
in any rield. Her testimony was accepted as an employee of the Lee County Port Authority.
She commenced by giving an overview of the airport's mitigation park. That is the property
located directly north of the Applicant's site. She did not voice specific objections to the
Applicant's request. She left that to other representatives of the Port Authority.
Lonnie Howard, 49 of Johnson Engineering, testified on behalf of, their client, the Lee County
Port Authority. He was qualified as an expert in groundwater hydraulics, groundwater
hydrology, groundwater modeling plans, surface water hydrology, surface water hydraulics,
surface water monitoring plans, as it relates to hydrology (not water quality), hydraulic barrier
design and analysis associate with excavations. He testified that they had developed their
own groundwater model flow, and made simulations by phase, with and without a grout
47 Hearing Transcript, August 26, 2009, pp. 126 -166.
48 Hearing Transcript, September 29, 2009, pp. 110 -123.
49 Hearing Transcript, September 29, 2009, pp. 124 - 211
Case DC12006 -00026 Page 34 of 70 07- Apr -10 -
curtain. They reviewed the initial Adaptive Management Plan. He concluded that the
excavation will reduce groundwater recharge by approximately two inches. He disagreed
severely with CDM's determination of recharge or discharge and with the Applicant's model.
Mr. Howard, as well as Dr. Lee, had serious criticisms of the data used to produce the
Applicant's models. Ratherthan trying to summarize this individual's very detailed testimony,
I commend the reader to specifically review his testimony in detail. The witness ended his
testimony with the conclusion that, as proposed, the application does maintain surface and
groundwater, at their historic level.
Church Roberts,50 of Johnson Engineering, was qualified as a expert in the fields of
environmental permitting, ecological monitoring, mitigation design, land management
oversight, and flora and fauna surveys and management plans. The witness was responsible
for the design and permitting of the Port Authority's mitigation park. After a general overview
of the park, Mr. Roberts proceeded to review the wells and groundwater monitoring that
occurs on the site. He then turned his attention to a description of the current state of the
mitigation park, especially near the Applicant's property, and what effects changes in the
hydroperiod would have on it. He framed these effects in terms of the changes that were
discussed in Mr. Howard's testimony.
James Blythe Hodges' member of Earthmark Southwest Florida, which is the corporate
owner of the mitigation bank, east of the subject parcel. He is also the project manager for
Earthmark, in the operation of this wetland mitigation bank. He is an attorney and was not
testifying as an expert in any field. Rather, he discussed the history of his mitigation bank,
its ownership, function and remedies he may have in the event of unintended impacts from
the Applicant's project. In reality, he was establishing a background of the project. He also
indicated that he would be presenting testimony from his experts in hydrologics and ecology,
at a later date. Those witnesses were scheduled for testimony, The appearances were
continued, and it was later confirmed, that they had withdrawn Earthmark's objection to the
Applicant's project. This was in consideration of a set back of 2,100 feet from the east
property line to the proposed lake. There is a more specific agreement between the parties,
but its terms are not relevant to this proceeding, and the same was not disclosed or
requested to be disclosed. No further testimony was received by representatives of
Earthmark Southwest Florida.
Ed Carlson,S2 Director of the Corkscrew Swamp Sanctuary, testified on behalf of that entity,
which is located approximately two to three miles south of the subject site. Mr. Carlson has
done field work for the Sanctuary, prior to that, for 10 years with the Audubon's research
department. The witness describes himself as the guy who drives into the swamp, places
well pipes without heavy equipment, and develops shallow groundwater wells used for
monitoring purposes. His knowledge is based on personal work experience, as opposed to
a formal education, in those areas. He was not qualified as an expert witness. He explained
59 Hearing Transcript, September 29, 2009, pp.212 - 233.
51 Hearing Transcript, October 7, 2009, pp. 263 - 275.
52 Hearing Transcript, October 13, 2009, pp. 141 -149
Case DC12006 -00026 Page 35 of 70 07 -Apr -10 -
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that, within the Sanctuary, and below the surface layer, are the shell beds which are
extremely permeable, forcing water to flow much quicker, than in any other layer. His
concern was that, if the lake was excavated, and a shell bed was exposed by the lake, water
would run extremely fast through the shell bed. This may adversely effect the water levels
in the Corkscrew Swamp Sanctuary. Upon questioning, Mr. Carlson acknowledged that he
did not know, or could prove, that there were any such shell beds connecting the subject site
to his Sanctuary. Since, neither the Applicant's, Staffs, or third party witnesses raised or
discussed this phenomena, it has been discounted by the Hearing Examiner. No proof was
proffered to the Hearing Examiner that shell beds posed a concern at the subject site.
Recommended Conditions.
Incorporated in this Hearing Examiner's Recommendation of approval are the conditions to
the recommendation, set out in the Appendix hereto. County Staff deviated from their usual
procedure of submitting a proposed set of conditions for adoption by the Hearing Examiner,
in the event that the Hearing Examiner would take a position contrary to Staffs
recommendation. No proposed conditions were initially submitted by Staff. During the
course of the hearing, this Hearing Examiner invited Staff to submit proposed conditions. The
Staff responded with conditions that were, in essence, a restatement of requirements
contained in the amendments to the Lee County Land Development Code, adopted after
submission of the application herein. That action clearly contradicts the express
requirements contained in Judge Fuller's Order of February 12, 2009, Exhibit D attached
hereto. Consequently, this Hearing Examiner determined that he could not recommend any
of Staffs recommended conditions.
The Applicant provided the Hearing Examiner with a set of conditions. These were amended
during the course of the hearing to incorporate requirements that responded to comments
by County Staff, and issues identified by the Hearing Examiner. The final version, of the
Applicant's suggested conditions, was further modified by this Hearing Examiner. The
Applicant's conditions were, in part, taken from conditions that had already been imposed
upon existing, approved mine operations within Lee County, and other provisions are new
and apply exclusively to the Applicant's project. The conditions, along with their exhibits and
attachments, are extensive and comprise the entirety of the Appendix to this
recommendation, contained in Volume 2 of this recommendation. Some of these conditions
require comment by the Hearing Examiner.
Condition 1. A. requires the Mine Operator to develop, and maintain, a website for activities,
and information, related to the operation of the mine site. It provides the public with links to
the official sites for State and County Offices, and information on the current dates and times
of actual excavation and blasting, informs the public of a method to notify the operator of
unsafe or discourteous truck operation. It also provides online copies of monitoring reports,
that the mine operator is required to provide to State and County Offices. This section of the
conditions requires the Applicant to provide the public, and especially local residents, with up
to date information in regard to its day to day mining activity.
Condition I, B. contains the conditions requiring the Mine Operator to comply with the
Adaptive Management Plans, and mitigation and reclamation efforts. It requires monitoring
Case DC12006 -00026 Page 36 of 70 07- Apr -10 -
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after cessation of mining activities to assure the integrity of the hydraulic barrier. Bonding is
a requirement to ensure funds are available for remedial action. Finally, the County is
granted access for inspection of the barrier areas.
Condition I, C. requires, as part of the Mine Operator's website, that up to eight cameras are
on -site to view mine operations, on a realtime basis. In regard to these conditions, the
Hearing Examinerfinds that they will provide the County Staff and the public with information
concerning the current operation of the mine, assurance that the lake created by the mining
activity will not cause any long term impacts, and a blasting schedule.
Condition II provides for mine and accessory uses. The Applicant will be allowed to continue
sod farming and cattle grazing (agricultural uses), until that phase of the site is converted to
mining operations.
Condition III contains the dimensional limitations of the site. Please note that there is a 500 -
foot setback from the Lee County Well Easement on the south side of the site. Mining is
limited to a depth of 110 feet, or to the confining layer, whichever is the shallowest. The
Applicant has modified the excavation bank slopes from their original submission. It is
designed to provide an area for wading bird activity on the edges of the lake. Additionally,
the setback from the east property line (the border with the mitigation bank located on South
Florida Water Management District property) has been extended to 2,100 feet. This was
accomplished by negotiation with the mitigation bank. It is beneficial to the Applicant's site
in two ways. First, since it is on the eastern portion of the property, the additional setback
will reduce the difference in elevation between the northeastern and southwestern portions
^ of the site. This in -turn should reduce the potential of the off -site impact of reduced water
levels in the neighboring mitigation bank. Second, it increases the amount of open space on
the site.
Condition IV, A, 1. contains the hours of operation. It should be noted that 24 -hour
operations are authorized, if required, by a contract with a federal, state or local government,
or agency thereof. Notice of such around the clock operation must be posted on the Mine
Operator's website 48- hours, prior to such operation. Blasting is always limited to the hours
of 9:00 AM to 5,00 PM and drag line operations are always prohibited between 11:00 PM and
6:00 AM.
Condition IV, B. deals with traffic. The Mine Operator is limited to 2,400 round trips, within
a calendar day. In order to reduce the impact on the other users of Corkscrew Road,
improvements will be made to the Alico /Corkscrew intersection, the Corkscrew /Burgundy
Farms Road intersection, and Corkscrew Road, at the entrance to the subject site. These
improvements will be funded by the Applicant. The Mine Operator will fund additional road
patrols, by the appropriate law enforcement agencies, in the "Corkscrew Road Corridor,"
defined as Corkscrew Road, from Alico Road to the entrance of the Westwind /Corkscrew
Mine.
Additionally, the Applicant proposed Safe Driver Contract Requirements for the hauling
companies and independent drivers that will be hauling product from the site. Essentially, in
addition to the usual penalties for traffic infractions, drivers will have additional restrictions
Case DC12006 -00026 Page 37 of 70 07- Apr -10 -
110
placed on them, i.e. banning the drivers from hauling from the subject site and mandating
attendance at driver improvement courses, for traffic infractions within the Corkscrew
Corridor.
Driver training courses will be required for all drivers and hauling companies. Signage will
be provided to direct drivers to use Alico Road, when coming and leaving the subject site.
The Applicant does, and will, not oppose the reduction of speed limits (along Corkscrew
Road), and weight restrictions on Corkscrew Road, between Alico Road and Ben Hill Griffin
Parkway.
Condition IV, C. contains the environmental conditions. They require a minimum of 187.3
acres of indigenous preservation and restoration, a significant buffer along Corkscrew Road,
and 3.6 acres of littoral shelf for wading birds. Wildlife monitoring, exotic removal and a final
restoration plan, submitted at the local development order stage, are also required.
Condition IV, E. contains the Groundwater Conditions that apply to the site. Dewatering is
not approved for this venture. Private wells, within one mile of the subject site, will have the
opportunity to be tested, at no charge to the owners, prior to the commencement of the first
phase of mining. Additionally, free inspections may be had upon completion of new well
construction, and the sale of a home, where the well was not inspected. The entire point of
this inspection is to determine if any damage has been caused to a well by the Operator's
blasting activity. If that does occur, the property owner's damage will be repaired by the Mine
Operator.
Detailed conditions are also supplied regarding the proposed hydraulic barrier. Basically,
construction and maintenance of the barrier will be controlled by the Lee Adaptive
Management Plan. That plan is more specific and restrictive than the original Adaptive
Management Plan that was presented to the Florida Department of Environmental Protection.
The barrier must also be in compliance with the Environmental Resources Permit, issued by
that agency. Most significant is the requirement, that prior to local development order, a
revised calibrated hydrologic model, using accumulated field data, will be provided. This
provides the County Staff the opportunity to provide input into the specifics of this model. The
parameters and considerations to be employed in developing this model are specifically set
out in the condition.
This condition also specifies the monitoring and reporting requirements imposed on the
Applicant, as well as the standards for determining baseline water levels. There are additional
requirements for hydraulic barrier performance tests, sequencing of construction and
groundwater quality and quantity monitoring.
Condition 1V, F. contains the blasting conditions. Of note, the Hearing Examiner has added
language clarifying that the reduction of peak particle velocity to .35 inches per second, is a
contractual element of this condition, and the same may be enforced by an action in Circuit
Court. Bonding is a requirement of blasting , as well as a public notice of blasting times.
Case DC12006 -00026 Page 38 of 70 07- Apr -10 -
Standard of Review and Burden of Proof
Given the unique background of this case, this Hearing Examiner feels compelled to review
the principles of law that apply to this recommendation. This is a Quasi - Judicial proceeding,
requiring that my findings and recommendation must be adduced from competent, substantial
testimony and other evidence presented with scrupulous adherence to procedural due
process.
The Quasi - Judicial Proceeding is borne out of the Florida Supreme Court Case of Board of
County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993). In that
decision, the Court separated the functions of comprehensive rezonings (comprehensive plan
amendments), from the rezoning of smaller parcels. They concluded that the comprehensive
rezonings of large areas affect a large portion of the public and are policy matters. Therefore,
they are legislative in nature and subject to a "fairly debatable" standard of review. Rezoning
applications, on the other hand, are applications of that policy, and have an impact on a
limited number of people or property owners. The decisions are subject to strict scrutiny and
a substantial evidence standard, and are thereby more judicial or "quasi-judicial" in their
nature. This requires that a recommendation to the Board of County Commissioners must
be based on facts adduced from competent and substantial evidence, with scrupulous
adherence to procedural due process,
The Supreme Court, in quasi judicial proceedings, places the burden of proof on the
landowner to demonstrate that the use, to which it seeks to rezone, is consistent with the
comprehensive plan. There is no presumption as to the consistency of the use. However,
once the landowner proves that the use is consistent, with the comprehensive plan, the
burden shifts to the County to demonstrate that maintaining the existing zoning classification
accomplishes a legitimate public purpose. The Court also held, if the Board of County
Commissioners denies this application, and if that decision is appealed to Circuit Court, the
Board will be required to show that there was competent and substantial evidence presented
to it, to support its ruling.
Hearing Examiner Findings:
Residential Compatibility Issues
The first issue, that must be reviewed, is the compatibility between the Applicant's request
for a mining use and the nearby residential areas. There are two such areas in relative close
proximity to the Applicant's property, the Burgundy Farms Road and the 6L Farms Road
Subdivisions. The Staff basically contends that mining and residential uses are per se
incompatible, relying on the assertion that blasting, truck traffic, dust and noise make
residential uses near mine sites, unrealistic. At first blush, one might agree with this position,
but the testimony and evidence do not support that position.
Staff has not provided any definitive proof that that is actually the case. The only actual
expert testimony on the subject came from the Applicant's witnesses, Larry Sewell and Dr.
David Depew. They presented evidence that there has been residential growth in the DR /GR,
at the same time that mines were being created. The fact that mines are in the area does
Case DC12006 -00026 Page 39 of 70 07- Apr -10 -
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not seem to have hatted residential construction. Granted that residential expansion is not
larger, but the DR /GR, with its density restrictions, does not contemplate or welcome massive
residential expansion. Mr. Sewell indicated that the pool of prospective purchasers, for
residential property in the DR/GR, is less than other areas, but it is in line with the number of
residences, and home sites, located there. Staff provided nothing to rebut this testimony.
There was a substantial amount of testimony from individuals, who either live near the
Applicant's property, or close to other mines. They complained about truck traffic, blasting,
noise and dust, all of which does negatively, to some degree, impact them. None of the
complaints, however, rose to the level of stating that those activities were driving prospective
purchasers, or existing residents, from the area.
The Hearing Examiner also notes, and the testimony reflects, that the subject parcel is within
the Southeast Planning Community, an area of 82,500 acres, and 435 dwelling units. That
constitutes the lowest density of any area in Lee County. Natural resource extraction is a
specifically authorized use in this future land use area, which is consistent with the concept
of locating such use in a very low density location and away from denser areas of the County.
This use was contemplated at the time the language was placed in the definition of the
DR/GR, which can only be construed as meaning that the authors intended that the use
would be acceptable in the future.
This Hearing Examiner can only conclude that the Applicant's request is compatible with the
existing low density residential community. This may not be acceptable to the relatively small
number of residents who live near the proposed project. Nevertheless, the Lee County
Comprehensive Plan clearly puts property owners, and future property owners, on notice of
the activities that may be lawful within the DR/GR.
Traffic Compatibility Issues
The issue that drew the most opposition, or comment, from the public, was that of the
increase in truck traffic from the site. The Applicant has requested a condition limiting the site
to 2,400 daily round trips, or 4,800 one -way trips, of dump trucks. These trucks may be
accessing the site around the clock, based on the Applicant's contractual obligations. There
is no question that this is a significant increase in activity on Corkscrew Road. The Applicant
has included proposed conditions that would route incoming and outgoing trucks, from the
site, east on Corkscrew Road to Alico Road northwest and onto Interstate 75, or other
roadways. The purpose of that condition is to limit the truck traffic on the sections of
Corkscrew Road, west of Alico. How successful the Applicant will be in the compliance and
enforcement of these conditions remains to be seen.
Based on the testimony before this Hearing Examiner, it is clear, that, even with this proposed
increase in traffic, the Level of Service forthe segment of Corkscrew Road, from the entrance
to Applicant's project, to Alico Road will be at an acceptable level. The Applicant's Traffic
Impact Study, which has been confirmed by the Lee County Department of Transportation,
treated each truck as though it were 1.7 passenger vehicles. That is the only standard
imposed by Lee County Ordinances.
The County Staffs opposition to the truck issue is a belief that it will increase traffic accidents,
AP-IN funnel traffic into a residential area, increase road congestion, and increase road wear. The
Case DC12006 -00026 Page 40 of 70 07- Apr -10 -
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Applicant asserts it has met the only County standard imposed upon them, that is an
acceptable Level of Service at the commencement of operations.
The testimony clearly indicated that road use will increase by as much as 4,800 single truck
trips, or 2,400 round trips, per day. After consideration of that number of trips, experts from
both the County Staff and the Applicant, agree that an acceptable level of service will exist
on Corkscrew Road. The Applicant has asserted that once an acceptable level of service has
been proven, no further examination of the issue is appropriate. They rely on the case of
Debes vs. City of Key West, 690 So.2d 700, 701 -702 (Fla. 3d DCA 1997) as their authority
for this position. In that case, the Court held that,
"Because it is virtually self - evident that, by its very nature, all commercial
uses create `more traffic' than non - commercial ones, it is equally obvious
that local government cannot justify a denial of a particular commercial use
on this ground. To hold otherwise would mean, as it apparently did in the
proceedings before the Commission, that the protectable rights of any
owner may be arbitrarily destroyed. This is not and we will not let it be, the
law."
County Staff a'.so took Vie position that truck traffic will increase accidents along this
segment. This is a saecuat,ve statement. Their traffic expert, Mr. Campbell, produced a
formula used in the prediction of traffic accidents. He did not apply the formula to the subject
site. Rather, he made mention of an increased safety risk without reliance on any data, or
other evidence to support the same. In his testimony, he could not recall the posted speed
limit on the subject segment, or if there was a different limit after dark. In short. there is no
serious definitive evidence supporting the assertion that the Applicant's request would result ✓
in increased traffic accidents
This Hearing Examiner agrees with the Applicant that once an acceptable level of service is
proven, the issue becomes moot. All development, be it industrial, commercial or residential,
implicitly implies an increase in traffic. To deny a use, just because it results in an increase
in traffic, would allow all development to be denied. The real concern, to the undersigned,
is that there has been no readily ascertainable standard set forth to determine when truck
traffic becomes unacceptable or simply not safe. The Staff did come with a formula for
determining the "potential" for future truck accidents. However, intuitively it stands to reason,
when traffic increases, accidents increase. That is not the test that car) be employed here.
In order to deny the Applicant his requested use, and lawful enjoyment of the property, this
Hearing Examiner believes that a readily ascertainable, and scientifically supported, standard
must be the basis for determining the limitation of truck traffic any segment of roadway. No
such standard has be proffered, nor has is it been suggested that such a standard even
exists.
The County Staff has also asserted that approval of this request would be inconsistent with
Lee Comprehensive Plan Policy 7.1.9.53 This assertion is totally misplaced. All parties have
agreed that this segment of Corkscrew Road is a arterial roadway, which is defined as a
53 Lee County Comprehensive Plan Policy 7.1.9:
Industrial Development will not be permitted if it allows industrial trafficto travel through predominantly residential areas.
Case DCI2006 -00026 Page 41 of 70 07- Apr -10 -
11D"
street primarily intended to carry large volumes of through traffic connecting major activity
centers to other major traffic generators. Access to abutting properties is a secondary
function. "54 Lee County's Traffic Safety expert indicated that this application would double
truck traffic on Corkscrew Road, and that there were already 2,000 round trip truck trips on
that roadway. This area currently has large amounts of commercial trucks through it daily.
Corkscrew Road has another mine and large agricultural operations on it. Those operations
place dump trucks and tractor - trailer vehicles on this roadway, carrying dirt, rock and
agricultural products. Most of the residential properties are located on local roads, accessed
from Corkscrew Road. The reality is that this segment of Corkscrew Road is a mixed use
area, with residential uses comprising only a part of the total activity. It is also clear that
Corkscrew Road is fulfilling its purpose as an arterial roadway, and that it is intended for the
uses contemplated by the Applicant.
This Hearing Examiner finds that the increase in truck traffic, over the existing and similar
traffic, does not raise anew compatibility issue There is currently extensive dump truck and
agricultural truck traffic on the roadway. The Applicant's proposal increases truck traffic, it
does not create a new truck corridor. That use already exists. Those types of vehicles
already extensively employ Corkscrew Road; between Alico Road and the Lee County line..
Compatibility with Blasting
The Applicant has requested permission to use blasting incident to its mining operation. The
mining of limestone cannot take place without the use of explosives. The Florida Legislature
has divested counties from the regulation of blasting activities. The Applicant has come
forwarded and agreed to be contractually limited in its blasting activities, in such a way as to
produce no more than a peak particle velocity of 0,35 inches per second, when measured at
a distance of 1,000 feet from the blast site. This agreement to treat, as a contractually
obligated provision, which will be capable of enforcement in Circuit Court. County Staff has
taken the position that it cannot be treated as a contractual obligation, because the State Fire
Marshal has exclusive jurisdiction over blasting activities. The Hearing Examiner called for
legal briefs to support these various positions; however, there appears to be no case law that
is dispositive of the issue. The Hearing Examiner is of the opinion that if the Applicant agrees
to have it treated as a contractual limitation, that the same will be enforceable in the Courts
of this State, It is a limitation that they have consented to, in consideration, for the requested
rezoning. It does not deprive the State Fire Marshal of its oversight authority. The limitation
is more restrictive than the current state law.
There was testimony from neighbors regarding the vibrations they were experiencing from
blasts from other existing mines, There was no testimony that they exceeded the current
limitations imposed by the State of Florida. The testimony on the subject, from the County's
expert, Mr. Glenn Rix, and from the Applicant's expert, Frank Luccia, reflect agreement that
blasts, at the maximum levels, set out in the conditions hereto, would not create any threshold
structural damage, and would be within an acceptable range of vibration. It should also be
noted that the conditions herein also contain provisions to determine if damages are
occurring, or have occurred, to wells at residential homes sites. They are also intended to
remedy any such damage, at the Applicant's expense.
54 Lee County Land Development Code Section10 -1, Street Subsection (3) a.
Case DC12006 -00026 Page 42 of 70 07- Apr -10 -
11D
The Hearing Examiner finds that the current residents of this area of Lee County, are already
experiencing blasting activities and knew that the same could be expected to occur in the
area of Lee County. The Applicant's blasting for mine extraction purposes is not incompatible
with other neighboring land uses and is, in fact, compatible with current blasting activities
from other sites within the DR/GR. It is also the opinion of the Hearing Examiner, that the
limitation of blasting levels, does not constitute "contract zoning."
The Hydrological Barrier
The hydrologic barrier, and accompanying Adaptive Management Plan, was the source of
considerable expert testimony and review. There are two parts to the physical barrier. The
slurry wall, which is the top portion of the barrier. It is, as the name implies, a wall of a slurry
substance that is placed in the top layer of earth on the site. The wall is placed immediately
on top of the limestone layer to the surface of the land. Below this wall is the grout curtain,
which are bored holes, filled under pressure with grout, that resist the underground water
flow. That wall extends from the top of the limestone layer to several feet into the confining
layer.
The County Staffs actual position with respect to this hydrologic barrier is vague. They
appear to be opposed to it. However, the testimony of their witnesses, and questions of
Applicant's witnesses, reveal that, in reality, they know little about the process. This is not
a new engineering process, and has been used for over a century, with successful results.
The testimony from all of the Applicant's experts, who are eminently qualified in the planning
and design of these structures, is that the proposed hydrologic barrier, if adjusted and
modified by procedures set forth in the Adaptive Management Plan, will provide the
necessary restrictions to ground flow, in order to prevent off -ste impacts. This is not
contested by the County Staff. They produced no experts who testified regarding hydrologic
barrier technology. That omission does not appear to be accidental. In fact, the reality of the
matter is that Staff has admitted that the hydrologic barrier will work, provided the Adaptive
Management Plan is properly finessed.
The Proposed Adaptive Management Plans, yes there are two, provides for a monitoring
system measuring ground flow based upon the input or data, from monitoring wells, in and
near the subject property. The use of the term "adaptive" means that the Plan can be
modified based upon the data inputed to the system. This is where the disagreement exists
between the experts. The Hearing Examiner sat through hours of testimony on the
Applicant's Adaptive Management Plan. The parties differ in issues dealing with modeling
input, selection of data sites, and other scientific issues beyond the understanding, or the
expertise, of this Hearing Examiner, and frankly most other individuals in the hearing room.
The Adaptive Management Plan is a document designed to be °adaptive" and subject to
modification by experts in that field, as more data and information is received. The sources
for the data are clearly in place. The specific issues dealing with "tweaking" the Plan should
not be taken up in this proceeding. They are issues that would be most effectively reviewed
during the development order process. They certainly are not severe enough to constitute
an impediment to approval of this rezoning request, nor should the same be a basis for
denying the Applicant its request.
Case DC12006 -00026 Page 43 of 70 07-Apr- 10 -
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Surface Water Flow
The subject site, at all material times hereto, and for several decades, has been developed
and used for agricultural purposes. It has a berm along its perimeter to restrict surface water
flow, on to the subject site, from the Flint Pen Strand. That flowway runs from the northeast
to the southwest, and essentially around the northern boundary of the property. The
Applicant's property was once within the boundaries of that flowway. It is not now and has
not been part of the flowway for decades. Within the subject site area series of agricultural
drainage canals. Staff has tried to convince the Hearing Examiner that part of the water from
the flowway crosses the Applicant's property, through breaks in the north part of the berm.
This is without any real evidence of any significant water flow. The Staff produced aerial
photographs, and pictures, of grass flowing in the water of these ditches, near the breaches,
but no definitive scientific proof of any surface water flow from the flowway. The purpose of
proving this water flows through the site, is to assume that the new berm system, proposed
by the Applicant, would direct additional water to the Burgundy Farms residential area. The
clear and convincing testimony from the Applicant's experts supports the position that the
development of the Applicant's property, as proposed, will not create any additional surface
water issues to that residential area. They may continue to have flooding, but that is simply
because they chose to develop the residential area within the confines of a flowway. Surface
water flow should not be changed to any degree by the Applicant's project.
Environmental Factors
The County Staff and public have all contended that the subject property will have serious
detrimental environmental impacts. This property is developed and used as an agricultural
site. Any large wetland areas were removed decades ago. This property is on the edge of
the Flint Pen Strand Flowway, which is inhabited by the Florida Panther, and other protected
species. Telemetry data from collars on the Florida Panther, imposed on an aerial
photograph, Exhibit V attached hereto, clearly reflects that, while the panthers roam the
nearby slough, there is no use of the Applicant's property. This agricultural site is clearly not
panther habitat. There is no significant use of the Applicant's site by any endangered or
monitored species.
Strategic Mining
One of the County Staffs arguments in opposition to the subject application is that current
existing and approved mines will provide sufficient quantities of limestone, for all uses, in the
foreseeable future. In support of this argument, detailed testimony was provided by William
A. Spikowski. Staff has not cited any authority for the proposition that a rezoning can be
denied because adequate sources of a product are available elsewhere. Likewise, the
Hearing Examiner has found no provision of the Lee County Ordinances to support such a
position, especially with regard to a product that has regional implications. Reliance on such
a criteria might invite preemption by the legislature. Since, the Hearing Examiner is without
authority to consider such issue, it will not be further discussed.
In prior decisions from this office, both Hearing Examiners have rejected the assertion that
proliferation, of any use is an appropriate basis for denial of a rezoning, or conditions to a
rezoning. This Hearing Examiner will maintain that position with regard to this
recommendation.
Case DC12006 -00026 Page 44 of 70 07- Apr -10 -
lio
Consistency with the Lee County Comprehensive Plan
This Hearing Examiner, based on the evidence and testimony before him, makes the
following findings regarding the proposed projects consistency with the Lee County
Comprehensive Plan (Lee Plan). The Lee Plan's Vision Statement recognizes the existence
of mining operations in that community. It also recognizes that the community is not
anticipated to change, and mining operations are expected to continue operations, within the
area, through at least 2030. The request is therefore consistent with Lee County
Comprehensive Plan, Vision Statement, Section 18. (See Footnote 2)
Material excavation is a permitted use within the DR/GR. The Applicant has proposed
safeguards to maintain surface and groundwater levels, at historic levels, making the request
consistent with Policy 1.4.5 of the Lee Plan. (See Footnote 1)
The proposed restoration, preservation and enhancement of the wetlands and uplands, in
conjunction with the Applicant's Adaptive Management Plan, will maintain the ecological
functions of the wetlands in the vicinity of the proposed uses. The project will add value to
wildlife by creating a larger vegetated buffer between the wetland mitigation lands, to the
north and east. The Applicant will also eradicate nuisance and exotic species and provide
a conservation easement for their perpetual protection. This is consistent with Policy 1.5.1
of the Lee Plan. (See Footnote 1)
Adequate buffering is provided on the site to mitigate impacts to adjacent property owners
from noise, dust and light. There is substantial indigenous vegetation restoration to provide
'� visual buffers. No odors will emanate from the site. Required best management practices,
complying with all appropriate Federal and state statutes, will be employed at the project.
Applicant's Adaptive Management Plan will provide protection from adverse water quality and
quantity, throughout development and after termination of mining operations. There is one
access point to the subject site. The Applicant's Traffic Impact Statement indicates an
acceptable level of service, along Corkscrew Road, during the pendency of mining activities.
There is no substantive evidence before the Hearing Examiner that Corkscrew Road is
significantly more dangerous, as a result of this request. Police, fire and EMS services are
available and adequate to serve this site. This resource, Limerock, is vital to the local and
state economy and infrastructure. This Hearing Examiner finds the Applicant's request
consistent with Lee County Comprehensive Plan Goals 7, 37 and 39, Objective 7.1, and
Policies 7.1.1, 71.2, 7.1.3, 7.1.10, 39.1.1 and 39.1.5.
ss Lee County Comprehensive Plan Goal 7:
INDUSTRIAL LAND USES. To promote opportunities for well-planned industrial developmental suitable locations within
the county.
Lee County Comprehensive Plan Objective 7.1:
All development approvals for industrial land uses must be consistent with the following policies, the general standards
under Goal 11, and other provisions of this plan.
Lee County Comprehensive Plan Policy 7.1.1:
In addition to the standards required herein, the following factors apply to industrial rezoning and development order
applications:
1. The development must comply with local, state, and federal air, water, and noise pollution standards.
Case DC12006 -00026 Page 45 of 70 07- Apr -10 -
110
2. When located next to residential areas, industry must not generate noise levels incompatible with the
residential development.
3. Bulk storage or production of toxic, explosive, or hazardous materials will not be permitted near residential
areas.
4. Contamination of ground or surface water will not be permitted.
5. Applications for industrial development will be reviewed and evaluated as to:
a. air emissions (rezoning and development orders);
b. impact and effect on environmental and natural resources (rezoning and development orders);
c. effect on neighbors and surrounding land use (rezoning);
d. impacts on water quality and water needs (rezoning and development orders);
e. drainage system (development orders);
f. employment characteristics (rezoning);
g. fire and safety (rezoning and development orders);
h. noise and odor (rezoning and development orders);
I. buffering and screening (planned development rezoning and development orders);
j. impacts on transportation facilities and access points (rezoning and development orders);
k. access to rail, major thoroughfares, air, and, if applicable, water (rezoning and development orders);
I. utility needs (rezoning and development orders); and
m. sewage collection and treatment (rezoning and development orders).
Lee County Comprehensive Plan Policy 7.1.2:
Industrial developments requiring rezoning and meeting Development of County Impact (DCI) thresholds must be
developed as Planned Developments designed to arrange uses as an integrated and cohesive unit in order to:
1. promote compatibility and screening;
2. reduce dependence on the automobile;
3. promote pedestrian movement within the development;
4. utilize joint parking, access and loading facilities;
5. avoid negative impacts on surrounding land uses and traffic circulation;
6. protect natural resources; and
7. provide necessary facilities and services where they are inadequate to serve the proposed use.
Lee County Comprehensive Plan Policy 7.1.3:
Industrial land uses must be located in areas appropriate to their special needs and constraints, including, but not limited
to, considerations of. topography; choice and flexibility in site selection; access by truck, air, deep water, and rail;
commuter access from home -to -work trips; and utilities; greenbelt and other amenities; air and water quality
considerations; proximity to supportive and related land uses; and compatibility with neighboring uses.
Lee County Comprehensive Plan Policy 7.1.10:
All county actions relating to industrial land uses must be consistent with the goals, objectives, and policies of the
Economic element of this Plan.
Lee County Comprehensive Plan Goal 37:
LEVEL OF SERVICE STANDARDS. Establish and maintain specified levels of service on state and county roads within
unincorporated Lee County and the roads the county maintains within the municipalities, including those level of service
standards adopted by Rule by the Florida Department of Transportation for Florida Intrastate Highway System (FINS)
facilities.
Lee County Comprehensive Plan Goal 39:
DEVELOPMENT REGULATIONS. Maintain clear, concise, and enforceable development regulations that fully address
on -site and off -site development impacts and protect and preserve public transportation facilities.
Lee County Comprehensive Plan Policy 39.1.1:
New development must:
Case DC12006 -00026 Page 46 of 70 07- Apr -10 -
11D
Natural resource extraction is a specifically identified use within the DR/GR. The Applicant
has provided methods to insure that natural resource extraction activities minimize or
eliminate adverse effect on the surrounding properties and natural resources. The Applicant
has provided an environmental assessment report addressing potential impacts, and
demonstrating the methodologies that will be employed to avoid or reduce those impacts.
The Florida Department of Environmental Protection has reviewed those submissions, and
has issued the permits required to undertake this activity. A careful review of the Applicant's
most recent Master Concept Plan indicates that they have. This application is consistent with
Lee County Comprehensive Plan Goal 10, Objective 10.1 and Policies 5.1.5,10.1.1, 10.1.2,
10. 1.3 and 10.1.5.
• Have adequate on -site parking.
• Have access to the existing or planned public road system except where other public
policy would prevent such access.
• Fund all private access and intersection work and mitigate all site - related impacts on the
public road system; this mitigation is not eligible for credit against impact fees.
Lee County Comprehensive Plan Policy 39.1.5:
The Land Development Code will continue to require appropriate landscaping for developments abutting arterial and
collector roads.
W Lee County Comprehensive Plan Goal 10:
.r
NATURAL RESOURCE EXTRACTION. To protect areas containing identified natural resources from incompatible urban
development, while insuring that natural resource extraction operations minimize or eliminate adverse effects on
surrounding land use and natural resources.
Lee County Comprehensive Plan Objective 10.1:
Designate through the rezoning process sufficient lands suitable for providing fill material, limerock, and other natural
resource extraction materials to meet the county's needs and
to export to other communities, while providing adequate protection for the county's natural
resources.
Lee County Comprehensive Plan Policy 5.1.5:
Protect existing and future residential areas from any encroachment of uses that are potentially destructive to the
character and integrity of the residential environment. Requests for conventional rezonings will be denied in the event
that the buffers provided in Chapter 10 of the Land Development Code are not adequate to address potentially
incompatible uses in a satisfactory manner. If such uses are proposed in the form of a planned development or special
exception and generally applicable development regulations are deemed to be inadequate, conditions will be attached
to minimize or eliminate the potential impacts or, where no adequate conditions can be devised, the application will be
denied altogether. The Land Development Code will continue to require appropriate buffers for new developments.
Lee County Comprehensive Plan Policy 10.1.1:
Natural resource extraction operations intending to withdraw groundwater for any purpose must provide a monitoring
system to measure groundwater impacts.
Lee County Comprehensive Plan Policy 10.1.2:
Applications for natural resource extraction permits for new or expanding areas must include an environmental
assessment. The assessment will include (but not be limited to) consideration of air emissions, impact on environmental
and natural resources, effect on nearby land uses, degradation of water quality, depletion of water quantity, drainage,
fire and safety, noise, odor, visual impacts, transportation including access roads, sewage disposal, and solid waste
Case DC12006 -00026 Page 47 of 70 07- Apr -10 -
n
Sf0
This Hearing Examiner did not find the Applicant's request inconsistent with or not in
compliance with any other provision of the Lee County Comprehensive Plan or the Lee
County Land Development Code.
The undersigned Hearing Examiner finds that the requested rezoning, meet the criteria
necessary for approval, including consistency with the Lee County Comprehensive Plan and
Lee County Land Development Code. The new zoning district, as conditioned, is compatible
with neighboring properties. Consequently, this Hearing Examiner recommends approval of
rezoning the subject parcel to an Industrial Planned Development (IPD) subject to the
conditions and deviations set forth herein. In compliance with Section 3.1 of Lee County
Administrative Code AC -2-6, the undersigned Hearing Examiner conducted a site visit to the
subject real property prior to issuing this recommendation.
V. FINN IN9S AND CONCLUSIONS:
disposal.
Based upon the Staff Report, the testimony and exhibits presented in connection with this
matter, the undersigned Hearing Examiner makes the following findings and conclusions:
A. That the Applicant has proven entitlement to the rezoning by demonstrating
compliance with the Lee County Comprehensive Plan, the Lee County Land Development
Code, and any other applicable code or regulation.
B. That the request will meet or exceed all performance and locational standards set
forth for the potential uses allowed by the request.
C. That the request is consistent with the densities, intensities and general uses set forth
in the Lee County Comprehensive Plan.
Lee County Comprehensive Plan Policy 10.1.3:
Applications for natural resource extraction permits for new or expanding sites must include a reclamation plan which
provides assurance of implementation. Reclamation plans in or near important groundwater resource areas must be
designed to minimize the possibility of contamination of the groundwater during mining and after completion of the
reclamation.
Lee County Comprehensive Plan Policy 10.1.4:
Natural resource extraction activities (and industrial uses which are ancillary tonatural resource extraction) may be
permitted in areas indicated on the Future Land Use Map as Rural, Open Lands, and Density Reduction/Groundwater
Resources, providedthey have adequate fire protection, transportation facilities, wastewatertreatment and watersupply,
and provided further that they have no significant adverse effects such as dust and noise on surrounding land uses and
natural resources. In order to reduce transport costs and minimize wear on the county's roadways, the extraction and
transport of fill material may also be permitted as an interim use in
the Future Urban Areas provided that the above requirements are met; however, special restrictions may also be applied
to protect other land uses. These determinations will be made during the rezoning process.
Lee County Comprehensive Plan Policy 10.1.6:
Lee County will support efforts by government, community leaders, and the extractive industry owners and businesses
to seek incentives that will help to facilitate the connection of natural resource extraction borrow lake excavations into
n a system of Interconnected lakes and flowways that will enhance wildlife habitat values, provide for human recreation,
educational and other appropriate uses, and/or strengthen community environmental benefits.
Case DC12006 -00026 Page 48 of 70 07- Apr -10 -
D. That the request is compatible with existing or planned uses in the surrounding area.
E. That approval of the request will not place an undue burden upon existing
transportation or planned infrastructure facilities and will be served by streets with the
capacity to carry traffic generated by the development.
F. That, where applicable, the request will not adversely affect environmentally critical
areas and natural resources.
G. That the proposed use or mix of uses is appropriate at the subject location.
H. That the recommended conditions to the concept plan and other applicable
regulations provide sufficient safeguard to the public interest.
1. That the recommended conditions are reasonably related to the impacts on the public
interest created by or expected from the proposed development.
VI. LIST QF EXHIBITS:
STAFF'S EXHIBITS
1. Resume of Alvin H. Block III, AICP, Senior Planner of Department of Community
Development
2. PowerPoint Presentation consisting of Corkscrew Excavation Case Chronology
( CD ) ( Hard Copy)
3. Excerpts of Application
4. Resume of Andrew Getch, Lee County Department of Transportation
5. Excerpts from U.S. Transportation Department, Highway Capacity Manual 2000
6. Excerpts from Lee County Concurrency Report 2008
7. Excerpts from Traffic Count Report 2008, prepared by Lee County Department of
Transportation, dated February 2009
8. Excerpts from Commercial Motor Vehicle Manual, prepared by Florida Department
of Transportation
9. PowerPoint Presentation, prepared by Lee County Department of Transportation
( Hard Copy)
10. Resume of Dr. Glenn J. Rix, Georgia Institute of Technology
11. PowerPoint Presentation of Ground Vibrations and Human Annoyance from Blasting,
prepared by Glenn J. Rix, Professor of Civil and Environmental Engineering, Georgia
Institute of Technology (Hard Copy) (color)
Case DC12006 -00026 Page 49 of 70 07 -Apr -10 -
11D
12. Resume of Harry A. Campbell, P.E., P.T.O.E., Lee County Department of
Transportation
13. Professional Opinion- Crash Analysis, prepared by Harry A. Campbell, Lee County
Department of Transportation
14. Large Truck Crash Facts 2006, dated January 2008 and prepared by The Analysis
Division, Federal Motor Carrier Safety Administration
15. Lee County Truck Impact Evaluation, prepared by David Douglas Associates, Inc.,
dated July 2008
16. Comprehensive Truck Size, Volumes I, 11,111 and IV, prepared by the U.S. Department
of Transportation
17. PowerPoint Presentation, prepared by Harry Campbell, including a comparison
between Alico and Corkscrew Roads
18. Roland Ottolini Resume, Division Director of Lee County Natural Resources
Management
19. PowerPoint Presentation, provided by Roland Ottolini, consisting of Lee County
Division of Natural Resources role and responsibilities and overview of Corkscrew
Excavation Mine Site and Vicinity (color) (28 pages) (2 sided) ( 8 1/2 "x11 ")
20. Samuel B. Lee resume, Engineering Manager of Lee County Natural Resources
Division
21. PowerPoint Presentation, regarding the Hydraulic Barrier and the Adaptive
Management Plan, prepared by Samuel B. Lee (color) (23 pages) (81/2 "x11 ")
22. PowerPoint Presentation, consisting of Groundwater Model, prepared by Samuel B.
Lee (color) (14 pages) (8 1/2 "x11 ")
23. L. A. (Tony) Pellicer Biographical Information
24. PowerPoint Presentation consisting of Monitoring Plan for Hydrologic and Water
Quality, prepared by L.A. Pellicer, Lee County Natural Resources Division (11 pages)
[color]
25. Monitoring Well L -1995 Historic Baseline and New Baseline Chart (color) and Lee
County Water Quality Monitoring- General Plan, prepared by Lee County Natural
Resources
26. Lee County Port Authority Overview PowerPoint Presentation, prepared by Lee
County Port Authority (color) [14 pages]
27. Lonnie V. Howard, P.E. Resume, Professional Engineer
Case DC12006 -00026 Page 50 of 70 07- Apr -10 -
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28. PowerPoint Presentation consisting of Hydrological Assessment of Corkscrew
Excavation, prepared by Johnson Engineering
29. Churchill Roberts Resume, Director of the Environmental Team at Johnson
Engineering
30 Environmental Analysis PowerPoint Presentation, Proposed Corkscrew Mine and the
Airport Mitigation Park, prepared by Johnson Engineering (color)
31. Aaron Martin Resume, Environmental Planner, Lee County Division of Environmental
Sciences
32. PowerPoint Presentation consisting of Setbacks and Preserve Protection, prepared
by Aaron Martin
33. Rebecca Sweigert Resume, Principal Environmental Planner, Lee County Division
of Environmental Sciences
34. Wildlife PowerPoint Presentation consisting of Protected Species Location Maps,
prepared by Rebecca Sweigert, Lee County Division of Environmental Sciences
(39 pages) [color]
35. Suzanne Derheimer Resume, Environmental Planner, Lee County Division of
Environmental Sciences
36. Open Space, Indigenous Preservation, Reclamation, & Buffering PowerPoint
Presentation, prepared by Susie Derheimer, Lee County Division of Environmental
Sciences (color) [101 pages]
37. Matthew A. Noble Resume, Senior Planner, Lee County Department of Community
Development, Division of Planning
38. Matthew A. Noble Updated Resume, Principal Planner, Lee County Department of
Community Development, Division of Planning
39. PowerPoint Presentation consisting of aerial perspective pictures, Off -site impacts of
mining, a brief community history, Corkscrew Excavation Lee Plan Staff Consistency
Analysis Staff Report, prepared by Matthew A. Noble, Principal Planner, Lee County
Department of Community Development (115 pages) [color]
40. Strategic Mining consisting of a report on mining in Lee County, prepared by Lee
County Division of Planning, dated September 30, 2002
41. Character and Landscape PowerPoint Presentation, dated October 6, 2009,
consisting of Alico Road Landscape Photos taken on October 5, 2009
42. BOCC Minute, dated September 5, 2008
43. HEX Recommendation for DC12000- 00057, case heard on March 15, 2001
Case DC12000 -00026 Page 51 of 70 07 -Apr -10 -
44. CD consisting of Fort Myers Mine #2
45. Ground Water Resource Protection Study, prepared by Henigar & Ray, dated July 28,
1993
46. Future Land Use Map, Lee Plan Map 1, Page 1 (color) (11 "x17 ")
47. Mean Monthly Rainfall
48. Scott M. Gilbertson Letter in reference to Alico Road Existing Functional
Classification, Director of The Department of Transportation, dated October 19, 2007
49. William M. Spikowski Resume
50. Spikowski PowerPoint Presentation consisting of charts and aerial maps
51. Test Sites for Hydraulic Conductivity Values Used in Schlumberger Model aerial map
and Excel Spread Sheet, prepared by Johnson Engineering, dated October 19, 2009
52. Dr. Missimer's Hand Drawn Diagram (24 "x36 ")
53. Dr. Coulibay data submitted to Dr. Lee in a CD
54. The Impact of Mining on Water Quality and Water Quantity in the DR/GR, prepared
by Thomas M. Missimer and Robert G. Maliva
55. Composite consisting of Technical Memorandum Groundwater Modeling Results Old
Corkscrew Golf Club, prepared by Missimer International, Inc., dated July 24, 2000
56. Technical Memorandum to Lee County Port Authority in reference to Johnson
- Engineering, Inc's review of the additional modeling information submitted regarding
potential impacts to the Lee County Port Authority Airport Mitigation Park, prepared
by Lonnie Howard, dated October 1, 2009
57. Speed Zoning for Highways, Roads, and Streets in Florida Report, prepared by
Florida Department of Transportation, 1997 Edition
58. Composite consisting of Letters to Mr. David W. Depew from the Department of
Community Development in reference to the zoning application, and Letters in
response from David W. Depew to the Department of Community Development.
59. Aerial Map consisting of GPS on Panthers
60. Close up Panther Point Map
61. Aerial Map consisting of 24 Hour Telemetry Data
62. Lee E. West Jr. Resume, Lee County Natural Resources Division
Case DC12006 -00026
Page 52 of 70
07 -Apr -10 -
110
63. Rebuttal on RCH Ground- Water Flow Model Based on ASTM & USGS Guidelines,
prepared by Sam Lee, dated by November 3, 2009
64. USGS Guidelines for Evaluating Ground- Water Flow Models Report, prepared by
Thomas E. Reily and Arlen W. Harbaugh
65. Unites States Department of the Interior Memorandum in reference to Groundwater
Modeling Guidance for Mining Activities, dated April 21, 2008
66. Request for Appeal of Zoning Board Decision 85 -5 -8, appeal submitted May 30, 1985
67. Dump Truck Traffic Generation
68. Minutes for May 21, 1985 A and May 28,1985 ZB, in reference to 85 -5 -8 DCI
69. Summary Report for 85 -5-8 DCI
70. Minutes July 8, 1985 in reference to 85 -5 -8
71. Master Concept Plan from 85 -5 -8, revised May 9, 1990
72. Resume of Bradley Browning, Senior Environmental Planner, Lee County Division of
Environmental Sciences
73. Bradley Browning Affidavit, consisting of observing a Panther crossing Corkscrew
Road on October 26, 2009, affidavit dated November 5, 2009
74. Composite consisting of Corkscrew Road and Alico Road School Bus Stops Map and
List
75. Proposed Changes in Lee Plan Policies
76. Staff Basis for Proposed Conditions
77. Aggregate Certified for FDOT, Production Report for July 2007 to July 2009, prepared
by Florida Department of Transportation
78. Composite consisting of Approved Aggregate Products from Mines or Terminals
Report and Maps
79. Staff Comments on Applicant's November 3, 2009 Revised Conditions
80. Article from Florida Department of Health in reference to Groundwater Risks
R6sumes of Lee County Staff are on file with the Hearing Examiner's Office and are
incorporated herein.
Case DC12006 -00026 Page 53 of 70 07 -Apr -10 -
"11 D
APPLICANT'S EXHIBITS
1. Composite Aerial Photographs of Subject with Wells, dated 2005 -2008 (color)
(11 "x17`) (2 pages)
2. Lee County Comprehensive Plan Excerpts
3. Lee County Future Land Use Map, generated December 2007 (color) (11 "x17 ")
4. Southeast Lee County DRGR Future Land Use Map, generated December 2007
(Color) (11 "x17')
5. Lee County Planning Communities Map 16, generated January 2008 (color) (11 "x17')
6. Chart of Buffer Zones in LDC regarding Noxious Uses
7. 2005 Aerial Photograph, Strategic Mining Map Overlay- Active & Approved Mines,
prepared by Morris Depew, dated April 6, 2009 (color) (11 "x17 ")
8. Composite consisting of Mining History as follows:
8A. - Westwinds Mine- Corkscrew Mining Ventures
1) Lee County Development Services Division Staff Report for DC12000 -00057 &
DC12002 -00066 cases
2) Hearing Examiner Recommendation for Case 99- 04- 035.06S 01.01, heard on June
23,1999 and Hearing Examiner Recommendation for DC12000- 00057, heard on
March 15, 2001
3) Board of County Commissioners Resolution # Z -01 -016
8B.- University Westlakes Mine
1) Lee County Development Services Division Staff Report for DC12002 -00075
2) Hearing Examiner Recommendation for DC12000- 00079, heard on November 21,
2001 and DC12002- 00075, heard on June 4, 2003
3) Board of County Commissioners Resolutions # Z -00 -039, # Z -01 -043 and # Z -03-
36
8C.- Bell Road Mine
1) Lee County Development Services Division Staff Report for DC12003 -00077
2) Hearing Examiner Recommendation for DC12003- 00077, heard on July 8, 2004
3) Board of County Commissioners Resolution # Z -04 -047
Case DC12006 -00026 Page 54 of 70 07-Apr- 10 -
.f
110 '
8D.- Bonita Grande Mine- Hubschman
1) Lee County Development Services Division Staff Reports for OC12001 -00065
and 98- 01- 237.03Z 01.01 cases
2) Hearing Examiner Recommendations for 98- 01- 237.03Z 01.01 and DC12001-
00065 cases
3) Board of County Commissioners Resolutions # Z -02 -047, Z -87 -199 and Z -98 -071
8E.- Estero IPD
1) Lee County Development Services Division Staff Report for DC12006 -00007
2) Hearing Examiner Recommendation for DC12006 -00007
3) Board of County Commissioners Resolution # Z -06 -097
8F.- Schwab 640
1) Lee County Development Services Division Staff Report for OC12001- 00002,
Revised Staff Report dated February 11, 2002 and Staff Report for 89- 8- 8 -3DC1
2) Hearing Examiner Recommendation for DC12001 -00002
3) Board of County Commissioner Resolutions # Z -01 -046, Z -89 -081, # Z -89 -81 A
and # ZAB -85 -105
8G.- Southwest Florida Rock LLC
1) Lee County Development Services Division Staff Report for DC12001 -00055
2) Hearing Examiner Recommendation for DC12001 -00055
3) Board of County Commissioners Resolution # Z -02 -053
9. Lee County Land Development Code- Definition of Residential District
10. Summary and copies of Newspaper Articles
10A. DVD consisting of Management and Planning Meeting on April 7, 2009 and DRGR
Meeting on August 1, 2009, audio files
11. Burgundy Farms Road Aerial Photograph and Data (11 "x17 ") (color)
12. Bella Terra Aerial Photograph and Data (color) (11 "x17 ")
13. Section 21, 22, 27, 28, 33 & 34, Township 46, Range 27- Lazy D Ranch Road Aerial
Photograph and Data (11 "x17 ") (color)
Case DC12006 -00026 Page 55 of 70 07 -Apr -10 -
11D
14. Section 3,4,5,9&10, Township 46, Range 26- Devore Lane and Mallard Lane Aerial
Photograph and Data (color) (11 "x17 ")
15. Sections 26, 27, 34 & 35, Township 45, Range 27- Bell Road Mine Aerial Photograph
and Data (11 "x17 ") (color)
16. Venice Minerals Mine Aerial Photograph & Data (11 "x17 ") (color)
17. Land Development Code document regarding Noise Zone Overlays
18. Lee County Development, Chapter 34, Text Highlighting Compatibility of Residential
& Mining Uses
19. Land Use Analysis prepared by Morris Depew Associates, Inc.
20. Master Concept Plan prepared by Morris Depew, dated April 21, 2009 (11 "x17 ")
21. Photographs of Berm on North Property and Line of RCH; Eastern Quadrant (2
photos) (color) (1 page 81/2 "x11 ")
22. MD PowerPoint Presentation (color)
23. Environmental Resource Permit No. 266397 -001, issued February 27, 2009
^ 24. South Florida Water Management Water Use Permit No. 36- 06874 -W, issued
December 2, 2008
25. Resource Conservation Holdings, LLC., Final Judgment - Sufficiency Suit
26. Lee County v. Resource Conservation Holdings, LLC., Order of Taking -
Condemnation Suit
27. Motion to Relinquish, Division of Administrative Hearings Case No. 08 -6480
28. County's Response to Motion to Relinquish in District Water Use Permit Case,
Division of Administrative Hearing Case No. 08 -6480
29. Court Order Denying Motion to Relinquish in Water Use Permit Case, Division of
Administrative Hearing Case No. 08 -0480
30. E. Larry Sewell, Real Estate Appraiser & Consultant, curriculum vitae
31. W. Kirk Martin, P.G., Vice President, Camp Dresser & McKee Inc., curriculum vitae
32. Adaptive Management Plan, prepared by Brad D. Cook, P.G., Project Geologist,
Camp Dresser & McKee Inc., dated August 2007
32A. CDM PowerPoint Presentation
Case DC12006 -00026 Page 56 of 76 07- Apr -10 -
33. Michael S. Schultz, Senior Vice President, CDM, curriculum vitae
34. Table of Grout Curtains (11 "x17 ")
35. Intentionally Left Blank
36. Paul K. Owen, Principal Ecologist, curriculum vitae
37. Lee County Indigenous Area Management Plan, prepared by W. Dexter Bender &
Associates, dated May 22, 2009
38. Jeffrey A. Straw, Consultant in Vibration and Acoustics, Vice President & Area
Manager, GeoSonics Inc, curriculum vitae
39. Blasting Plan, dated May 8, 2009, prepared by Jeffrey A. Straw, Vice President &
Area Manager, GeoSonics, Inc.
40. Ted B. Treesh, President of Transportation Consultants, Inc., resume
41. Traffic Impact Analysis, prepared by TR Transportation Consultants, Inc., updated
April 27, 2009
42. Traffic Accident Analysis, prepared by Morris Depew Associates, Inc
43. Patrolling Agreement with Lee County's Sheriffs Office
44. Intentionally Left Blank
45. Bonita Grande Mine and Bell Villa Data
46. Six LS Farm Road Aerial Photograph & Data, Sections 25 & 31, Township 46, Range
26 and Section 30 & 31, township 46, Range 27 (color) (11 "x17 ")
47A. Limerock Sample- soft rock with little porosity
47B. Limerock Sample- hard rock with porosity
47C. Limerock Sample- hard rock with little porosity
48. Boundary and Topographic Survey, prepared by Morris- Depew Associates, Inc.,
dated March 20, 2006 (11 "X17 ")
49. Corkscrew Excavation HEX Presentation by Paul Owen
50. Corkscrew Excavation Trip Calculations
51. Removal of Material from Site, Analysis consisting of Traffic Study Assumptions and
Proposed Mining Plan
Case DC12006-00026 Page 57 of 70 07 -Apr -10 -
1-111,
Q
52. Corkscrew Mine Entrance Road- Dedicated Left Turn Lane and Acceleration Lane
Proposal, prepared by Draper Technologies, LLC (11 "x17 ")
53. Corkscrew Mine Intersection Improvements - Dedicated Left Turn on to Burgundy
Farms Road Proposal, prepared by Draper Technologies, LLC (11 "x17 ")
54. Corkscrew Mine Intersection Improvements- Dedicated Right and Left Turn Lane,
improvements to Intersection of Alico Road and Corkscrew Road, prepared by Draper
Technologies, LLC (11'1x7")
55. Memorandum to Hearing Examiner regarding submitted documents and denial, dated
May 19, 2009
56. Composite of Historical Aerial photographs, prepared by Morris -Depew Associates,
Inc, dated May 22, 2009 (11 "x17 ")
57. Revised Applicant Conditions
58. Surrounding Residential Aerial Photograph, prepared by Moms -Depew Associates,
Inc., dated May 22, 2009 (color) (11 "x17 ")
59 Applicant's Proposed Conditions- Final, revised August 5, 2009 and Proposed
Conditions, dated July 14, 2009 [ post hearing submittal]
60. Composite consisting of Mining and Excavation Plan, Master Concept Plan,prepared
by Morris- Depew Associates, Inc., dated April 21, 2009 and revised August 4, 2009
( 11 "X17 ") and Master Concept Plan with Aerial, dated April 21, 2009 (11 "x17 ")
(color)
61. PowerPoint Presentation consisting of Revised Conditions Comparison, dated
8/19/2009 (hard copy) (color)
62. Comparison of Applicant's Proposed Conditions, Exhibit 57 vs. Exhibit 59, dated June
4, 2009 and revised conditions dated August 5, 2009
63. Two Letters from Florida Department of Environmental Protection, dated July 20,
2009 in reference to permits to operate the Concrete Batching Plant and Nonmetallic
Mineral Processing Plants facilities
64. Conceptual Model and 3D representation of the conceptual model, prepared by
Schlumberger Water Services USA, Inc.
65. Thomas M. Missimer, Ph.D., P.G., Vice President of Schlumberger Water Services
USA Inc., Curriculum Vitae
66. Groundwater Modeling to Assess the Effects of a Hydraulic Barrier on Impacts of the
RCH Mine and an Assessment of the Impacts on Lee County Utilities Water- Table
Aquifer Production Wells, prepared by Schlumberger Water Services USA, Inc.
Case DC12006 -00026 Page 58 of 70 07- Apr -10 -
11D
67. RCH Mine Model Files, prepared by Dr. Missimer (CD)
68. Resume of Michael E. Roeder
69. Structure Response and Damage Produced by Ground Vibration from Surface Mine
Blasting
70. DC12006 -00026 Staff Report, dated May 12, 2009
71. Memorandum from Dawn Perry Lehnert, Assistant County Attorney to HEX, dated
August 14, 2009 (2 pages)
72. Memorandum from Dawn Perry Lehnert, Assistant County Attorney to HEX, dated
August 7, 2009
73. BOCC Resolution ZAB -86 -62
74. BOCC Resolution Z -89 -055
75. BOC Resolution Z -89 -081
76. Proposed Lee Plan Amendments for Southeast Lee County, prepared by Dover, Kohl
& Partners, dated May 2009
77. Staff Report for DC12000 -00057 Westwind, dated March 15, 2001
78. BOCC Resolution Z -01 -016
79. BOCC Resolution Z -00 -039
80. Administrative Amendment ADD2000 -00217
81. Southeast Lee County DRGR Well Field Protection Zones Map (color) (11 "x17 ")
82. Panther Habitat Map (color) (11'`x17')
83. Species Richness Map, consisting of Strategic Habitat and Conservation Areas
important to flora, fauna and natural communities, determined by the Florida Fish and
Wildlife Conservation (color) (11"x17 ")
84. Southeast Lee County DRGR Major Flowways Maps (color) (11'`x17 ")
85. Frank J. Lucca Curriculum Vitae, TerraDinamica L.L.0
86. Terra Dinamica Executive Summary, Lee County Blasting Study, prepared by Terra
Dinamica LLC., dated June 2005
87. Lee County Blasting Study, prepared by Terra Dinamica LLC, dated June 2005
Case DC12006 -00026 Page 59 of 70 07- Apr -10 -
88. Lee County Ordinance No. 06 -07
89. Dr. Donald Alexander Bruce Resume, Director of Soldata, Inc
90. Dr. Bruce Diagram (Handwritten) [24 "x36 "]
91. Dr. Bruce Second Diagram ( Handwritten) [24 "x36 "]
92. Weixing Guo, Ph. D: P. G. Resume, Senior Hydrogeologist, Schlumberger Water
Services, USA
93. Kapo Coulibaly, PhD. Resume, Hydrogeologist III, c/o Schlumberger Water Services
94. Dr. Meismer PowerPoint Presentation
95. Seismic Results, dated October 12, 2009
96. Seismic Results ( second location ), dated October 12, 2009
97. Prospects for Southeast Lee County, report prepared by Dover, Kohl & Partners,
dated July 2008
98. Surface Water Rebuttal Presentation consisting of Aerial Photos and Graphs, dated
October 2009 (34 pages) [color] [ CD and Hard Copy]
99. Revised Boundary and Topographic Survey, prepared by Morris - Depew Associates,
Inc., revised October 5, 2009 (11 "x17') [14 pages]
100. Intersection Improvements Map, prepared by Draper Technology, LLC (11 "x17') [4
pages] [color]
101. Power Point Presentation consisting of four (4) photographs of Corkscrew Road and
Alico Road looking North at Corkscrew Road, Crash Analyses, professional opinion
by Harry Campbell, Lee County Department of Transportation and graphs consisting
of Accidents Rate and 2011 Projected Accidents
102. Surrounding Residential after 2001 Aerial Map, prepared by Morris- Depew
Associates, dated October 13, 2009 (11 "x 1 T) [color]
103. BOCC Minutes, dated September 11, 2007
104. Composite Exhibit consisting of Memorandum from DCD to BOCC and Meeting
Transcript from September 18, 2007
105. Toward a Greener Lee, Effective Planning Alternatives for Rural Lee County,
prepared by Spikowski Planning Associates, dated November 15, 2007
106. Strategic Aggregates Review Task Force Final Report, dated February 1, 2008
Case DC12006 -00026 Page 60 of 70 07 -Apr -10 -
110
107. Lee County Density Reduction/ Groundwater Resource, Ad Hoc Steering Committee
Report, dated July 30, 2008
108. Proposed Lee Plan Amendments for Southeast Lee County, dated May 2009,
prepared by Dover, Kohl & Partners
109. Staff Analysis and Recommendations for Comprehensive Plan Amendment, dated
June 12, 2009
110. Paul O' Connor Memorandum to Local Planning Agency in reference to DR/GR
Amendments, dated July 17, 2009
111. Natural Resource Strategies for Southeast Lee County, prepared by Dover, Kohl &
Partners, dated July 2009
112. Time line consisting of DR/GR Actions and RCH Application (5 pages)
113. Memorandum from Dawn E. Perry- Lehnert to Hearing Examiner, dated August 7,
2009 and Summary of Comments on Corkscrew Excavation Memo to HEX
114. Prospects for South East Lee County
115. Corkscrew Road Area Blasting Totals 2006 -2008 (11 "x17 ")
116. Aerial Map of Blast Complaints (11 "07 ") [color]
117. Complaints of Blast Effects including Residents List and copies of the Requests made
for Investigation
118. Lee Adaptive Management Plan- Corkscrew Excavation, prepared by M. Missimer,
dated October 27, 2009
119. Composite Dr. Missimer's Grout Curtain Illustrations [Handwritten](4pages)124 "x36'7
120. Double -Mass Curves, prepared by James K. Searcy and Clayton H. Hardison
121. Composite consisting of Memorandum from Lonnie V. Howard, Johnson Engineering
to Mr. Terrance O. Bengtsson, Senior Hydrologist at South Florida Water
Management District, in reference to Water Use Application Number 010511 -7, dated
September 30, 2002
122. Corkscrew Excavation Monitoring Well, Piezometer, and Staff Gauge locations map
and Six (6) PZ3 Groundwater Hydrographs with different dates, prepared by CDM
123. Lee County Case Review Checklist
124. Chart consisting of Difference Between High Storativity and Low Storativity in the
Lake
Case DC12006 -00026 Page 61 of 70 07- Apr -10 -
11D
125. Indemnification and Hold Harmless Agreement Resource Conservation Holdings, LLC
and Earthmark Southwest Florida Mitigation, LLC, dated October 30, 2009.
126. National Pollution Distribution, dated October 6, 2009
127. Management & Planning Committee Agenda in reference to Restricting Truck Traffic
on Corkscrew Road
128. Composite consisting of Applicant's Proposed Conditions Revised as of November
3, 2009
129. PowerPoint Presentation, prepared by S. William Moore, Esq.
R6sumes of Applicant's consultants are on file with the Hearing Examiner's Office and are
incorporated herein.
PUBLIC'S EXHIBITS
Payton's Exhibit:
1. Florida Wildlife Federation Presentation by Nancy A. Payton, dated May 29, 2009
Eslick Exhibit:
1. How many rocks does Lee County Need? document, testimony by Donald F. Eslick,
dated September 5, 2008
Trgbatoski Exhibits:
1. Resume of Trebatoski, Senior Ecologist, Kevin L. Erwin Consulting Ecologist, Inc.
2. Environmental Resource/ Mitigation Bank Permit from Department of Environmental
Protection, dated June 4, 2004
3. Letter from the Department of the Army, dated July 22, 2004 and Notice of
Authorization
4. Letter from the Department of Environmental Protection dated November 8, 2006
regarding Permit Modifications
5. Composite consisting of Corkscrew Regional Mitigation Bank Photo Index and
Photos (9 Photos) (81/2 "x11") (color)
Roeder Exhibfts:
1 _ Copy of Hearing Examiner's Decision for Case 96- 02- 319.06S 02.01, dated February
17, 1998
Case DC12006 -00026 Page 62 of 70 07 -Apr -10 -
iD
2. Chronology of Corkscrew Road Mining Approvals, prepared by Mike Roeder, dated
July 17, 2007 and revised August 19, 2008.
Lpuritsen Exhibit:
1. Resume of Jason Lauritsen , Assistant Director of Corkscrew Swamp Sanctuary
Schmidt Exhibit
1. Peggy Apgar Schmidt's PowerPoint Presentation consisting on Mine Impacts
Cornell Exhibit
1. Audubon Society Presentation, consisting of Lee DRGR Natural Resources 2009
Report graph, slides from presentation given by Dr. Mike Duever at Corkscrew
Swamp Sanctuary in April 2006, presented by Brad Cornell, Southwest Florida Policy
Associate.
Lytell Exhibits
1. Photograph of channeling on Corkscrew Road (8 4/i' x 11 ") [color]
2. 2 Photographs consisting of Trucks Traffic on Alico Road and Corkscrew Road (8 W
x 11 ") (color)
3. Photograph of Traffic (8 W x 11 ") (color)
Hill Exhibit
1. PowerPoint Presentation consisting on Corkscrew Rural Community including pictures
(CD) (19 pages) [color]
Carlson Exhibit
1. Photograph
Hart Exhibit
1. Composite consisting of Policies and previous testimonies from Corkscrew
Transcripts
VII. PRESENTATION SUMMARY:
See Official Court Reporter Transcripts
VIII. OTHER PARTICIPANTS AND §UBMITTALS:
Case DC12006 -00026 Page 63 of 70 07- Apr -10 -
ADDITIONAL APPLICANT'S REPRESENTATIVES:
1. Dr. Donald Alexander Bruce, 161 Bittersweet Circle, Venetia, Pennsylvania 15367
2. Kapo Coulibaly, c/o Schlumberger Water Services, 1567 Hayley Lane, Suite 202, Fort
Myers, Florida 33907
3. Richard Friday, c/o Youngquist Brothers, 15401 Alico Road, Fort Myers, Florida
4. Jamie Goble, c/o Brigham Moore LLP, 3277 Fruitville Road, Unit E, Sarasota, Florida
34237
5. Weixing Guo, Ph., D. P. G., c/o Schlumberger Water Services, 1567 Hayley Lane,
Suite 202, Fort Myers, Florida 33907
6. Jodi Joseph, c/o Morris Depew Associates, Inc., 2914 Cleveland Avenue, Fort Myers,
Florida 33901
7. Frank J. Lucca, c/o Terra Dinamica, LLC., 5 Meadow Brook Road, Granby,
Connecticut 06035
8. Thomas M. Missimer, Go Schlumberger Water Services USA, Inc., 1567 Hayley
Lane, Suite 202, Fort Myers, Florida 33907
9. S.W. Moore, c/o Brigham Moore, LLP, 3277 Fruitville Road, Unit E, Sarasota, Florida
34237
10.. Gregory S. Rix, c/o Brigham Moore, LLP, 3277 Fruiitiville Road, Unit E, Sarasota,
Florida 34237
11. Mike Schultz, cJo CDM, 50 Hamphire Street, Cambridge, MA 02139
12. Kim Sewell, c/o Brigham Moore LLP, 3277 Fruitville Road, Unit E, Sarasota, Florida
34237
13. Larry Sewell, c/o Sewell Valentich Tillis, 3277 Fruitville Road, Unit F, Sarasota Florida
34237
14. Ryan Shute, c/o Morris Depew Associates, Inc., 2914 Cleveland Ave, Fort Myers,
Florida 33901
15. Jeff Straw, c/o Geo Sonics, Inc., 4313 Southwest 64'" Avenue, Davie, Florida 33314
16. Ted Treesh, c/o TR Transportation Consultants, 13881 Plantation Road, Fort Myers,
Florida 33913
Case DC12006-00026 Page 64 of 70 07- Apr -10 -
1'10
ADDITIONAL COUNTY STAFF:
1. Brad Browning, Lee County Environmental Sciences, P.O. Box 398, Fort Myers,
Florida 33902
2. Harry Campbell, Lee County Department of Transportation, P.O. Box 398, Fort Myers,
Florida 33902
3. Susie Derheimer, Lee County Environmental Sciences, P.O. Box 398, Fort Myers,
Florida 33902
4. Andy Getch, Lee County Department of Transportation, P.O. Box 398, Fort Myers,
Florida 33902
5. Bill Horner, Lee County Port Authority, P.O. Box 398, Fort Myers, Florida 33902
6. Sam Lee, Lee County Division of Natural Resources, P.O. Box 398, Fort Myers,
Florida 33902
7. Ellen Lindblad, Lee County Port Authority, P. O. Box 398, Fort Myers, Florida 33902
8 Aaron Martin, Lee County Environmental Science, P.O. Box 398, Fort Myers, Florida
33902
� 9. Anura Karuna - Muni, Lee County Natural Resources, P.O. Box 398, Fort Myers,
Florida 33902
10. Matthew Noble, Division of Planning, P.O. Box 398, Fort Myers, Florida 33902
11. Roland Ottolini, Lee County Division of Natural Resources, P.O. Box 398, Fort Myers,
Florida 33902
12. Tony Pellicer, Lee County Division of Natural Resources, P.O. Box 398, Fort Myers,
Florida 33902
13. Dawn Per y- Lehnert, Assistant County Attorney, P. O. Box 398, Fort Myers, Florida
33902 -0398
14. Dr. Glenn J. Rix, Georgia Institute of Technology, 790 Atlantic Drive, Atlanta, Georgia
30332
15. Becky Sweigert, , Lee County Environmental Sciences, P.O. Box 398, Fort Myers,
Florida 33902
16. Lee Werst, Lee County Division of Natural Resources, P.O. Box 398, Fort Myers,
Florida 33902
Case DC12006 -00026 Page 65 of 70 07- Apr -10 -
110
PUBLIC PARTICIPATION:
A. THE FOLLOWING PERSONS TESTIFIED OR SUBMITTED EVIDENCE FOR THE
RECORD AT THE HEARING (SEE SECTION VII.):
For NONE
Against:
1. Mary Abramson, 20800 Corkscrew Road, Estero, Florida 33928
2. Bella Altura, 20875 Torre Del Lago Street, Estero, Florida 33928
3. Burton Altura, 20875 Torre Del Lago Street, Estero, Florida 33928
4. Eugene Atchison, 18423 Fuchsia Road Street, Fort Myers, Florida 33967
5. Kathleen Banks, 19920 Barletta Lane #1421, Estero, Florida 33928
6. Nicholas Batos, 9165 Hollow Pine Drive, Bonita Springs, Florida 34135
7. Judith Beach, 23058 Grassy Pine Drive, Estero, Florida 33928
8. Theophil A. Begansky Jr., 23736 Stonyriver Place, Bonita Springs, Florida 34135
9. David Bowser, 20601 Country Creek Drive, Unit 3315, Estero, Florida 33928
10. Ed Carlson, c/o Corskcrew Swamp Sanctuary, 375 Sanctuary Road West, Naples,
Florida 34120
11. Brad Cornell, c/o Collier County Audubon Society, 1020 8'" Avenue South, Suite #2,
Naples, Florida 34102
12. Anne Cramer, 3521 Tasselflower Court, Bonita Springs, Florida 34134
13. Gregg Cross, 18401 Glades Farm Road, Estero, Florida 33988
14. Anthony Davis, 19430 Burgundy Farms Road, Estero, Florida 33928
15. Beverly Davis, 19430 Burgundy Farm Road, Estero, Florida 33928
16, Philip W. Douglas, 10304 Cape Roman Road, Bonita Springs, Florida 34135
17. John Duder, 23650 Via Veneto, Apartment 502, Bonita Springs, Florida 34134
18. Marilyn Edwards, 9240 Spring Run Boulevard, Estero, Florida 34135
19. Donald G. Ernst, 20562 Candlewood Hollow, Estero, Florida 33928
Case DC12006 -00026 Page 66 of 70 07- Apr -10 -
.
�1D
20.
Donald F. Eslick, c/o Estero Council of Community Leaders, 23650 Via Veneto # 604,
Bonita Springs, Florida 34134
21.
Angie Finau, 19200 Burgundy Farm Road, Estero, Florida 33928
22.
John Fraioli, 5651 Harborage Drive, Fort Myers, Florida 33908
23.
Teresa Fraioli, 5651 Harborage Drive, Fort Myers, Florida 33908
24.
Thomas B. Hart, c/o Knott, Consoer, Ebelini, Hart & Swett, P.A., 1625 Hendry Street,
Third Floor, Fort Myers, Florida 33901
25.
Sharon Hickox, 19641 Burgandy Farms Road, Estero, Florida 33928
26.
Janice Hill, 20731 Corkscrew Road, Estero, Florid a 33928
27.
James B. Hodge, 5151 Collins Avenue, Suite 834, Miami Beach, Florida 33140
28.
Lonnie Howard, 2122 Johnson Street, Fort Myers, Florida 33901
29.
Mike Joyce, 17350 Corkscrew Road, Estero, Florida 33928
30.
Stewart Katz, 20411 Wildcat Run Drive, Estero, Florida 33928
^ 31.
Jason Lauritsen, 2896 Orange Grove Trail, Naples, Florida 34120
32.
Bill Lytell, 18251 Glades Farm Road, Estero, Florida 33928
33. Cathy Lytell, 18251 Glades Farm Road, Estero, Florida 33928
34. Jim Lytell, 18301 Glades Farm Road, Estero, Florida 33928
35. Beverly MacNellis, 22819 Forest Ridge Drive, Estero, Florida 33928
36. Rick Marini, 20557 Torre Del Lago, Estero, Florida 33928
37. Jack Meeker, 23701 Copperleaf Boulevard, Bonita Springs, Florida 34135
38. Sandy Mitsos, 21071 Six L's Farm Road, Estero, Florida 33928
39. Neal E. Noethlich, 20225 Wildcat Run Drive, Estero, Florida 33928
40. Thomas O'Dea, 23195 Foxberry Lane, Bonita Springs, Florida 34135
41. Nancy Payton, c/o Florida Wildlife Federation, 2590 Golden Gate Parkway, Suite 105,
Naples, Florida 34105
42. Ray Pothier, 21034 Oxbow Bend, Estero, Florida 33928
Case DC12006 -00026 Page 67 of 70 07- Apr -10 -
110
43.
Arvo Rahe, 19050 Corkscrew Estates Court, Estero, Florida 33928
44.
Ronald Reichert, 20950 Rivers Ford, Estero, Florida 33928
45.
William F. Ribble Jr., 8951 Bonita Beach Road, Suite #525, Bonita Springs, Florida
34135
46.
Church Roberts, 2122 Johnson Street, Fort Myers, Florida 33901
47.
Alan Rodak, 4108 Dahoon Holly Ct, Bonita Springs, Florida 34134
48.
Mike Roeder, c/o Knott, Consoer, Ebelini, Hart & Swett, P.A., 1625 Hendry Street,
Third Floor, Fort Myers, Florida 33901
49.
Theresa Rohrman, 19090 Burgundy Farms Road, Estero, Florida 33928
50.
Donald A. Rowe, 9136 Willow Walk, Bonita Springs, Florida 34135
51.
Peggy Apgar Schmidt, 5640 Mackaboy Court, Fort Myers, Florida 33905
52.
Richard Semon, 18251 Three B Farm Road, Estero, Florida 33928
53.
Vincent Silvestri, 20450 Ardore Lane, Estero, Florida 33928
54.
William F. Spikowski, c/o Spikowski Planning Associates,
55.
Jean Stanley, 13795 Cleto, Estero, Florida 33928
56.
Linda Tam, 20152 Larino Loop, Estero, Florida 33928
57.
Kim Trebatoski, 2077 Bayside Parkway, Fort Myers, Florida 33901
58.
David A. Urich, c/o Responsible Growth Management Coalition, 3919 McKinley
Avenue, Fort Myers, Florida 33901
59.
Amiel Villani, 17600 Corkscrew Road, Estero, Florida 33928
General:
B.
THE FOLLOWING PERSONS SUBMITTED A LETTER/COMMENT CARD, OR
OTHERWISE REQUESTED COPY OF THE HEARING EXAMINER RECOMMENDATION:
For:
NONE
ABanst:
1.
Jay Bolt, 20570 Torre Del Lago Street, Estero, Florida 33928
2..
Kevin Hill, 20731 Corkscrew Road, Estero, Florida 33928
Case DCI2006 -00026 Page 68 of 70 07- Apr -10 -
11D'
3.. Jon Leighton, 18201 Three B Farm Road, Estero, Florida 33928
4. Katie Leighton, 18201 Three B Farm Road, Estero, Florida 33928
5. Don Leroy, 20049 Buttermero Court, Estero, Florida 33928
6. Kim Rahe, 19050 Corkscrew Estates Court, Estero, Florida 33928
7. Arlene Rutstein, 23833 Cape Monaco Road, Bonita Springs, Florida 34135
8. Julia Semon, 18251 Three B Farm Road, Estero, Florida 33928
General:
Anthony J. Cotter, 301 East Pine Street, Suite 1400, P.O. BOX 3068
Orlando, Florida 32802
2. Mrs. A. E. Tongue, 15481 Copra Lane, Fort Myers, Florida 33908
3. Charlie Whitehead, c/o ckwhitehead@bonitanews.com
IX. LEGAL DESCRIPTION:
See Exhibit A (scanned legal description).
X. UNAUTHORIZED COMMUNICATIONS:
Unauthorized communications shall include any direct or indirect communication in any form,
whether written, verbal or graphic, with the Hearing Examiner, or the Hearing Examiner's
staff, any individual County Commissioner or their executive assistant, by any person outside
of a public hearing and not on the record concerning substantive issues in any proposed or
pending matter relating to appeals, variances, rezonings, special exceptions, or any other
matter assigned by statute, ordinance or administrative code to the Hearing Examiner for
decision or recommendation.... [Lee County Administrative Code AC -2 -5]
NQ Mrson shall knowingly have or attempt to initiate an unauthorized communication with the
Hearing Examiner or any county commissioner [or their staff]. ... [Lee County Land
Development Code Section 34- 52(a)(1), emphasis added]
Any person who knowingly makes or attempts to initiate an unauthorized communication ...
[may] be subject to civil or criminal penalties which may include: [Section 34- 52(b)(1),
emphasis added]
Revocation, suspension or amendment of any permit variance, special exception or rezoning
granted as a result of the Hearing Examiner action which is the subject of the unauthorized
communication. [Lee County Land Development Code Section 34- 52(b)(1)b.2.]; OR
Case DC12006 -00026 Page 69 of 70 07-Apr- 10 -
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A fine not exceeding $500.00 per offense, by imprisonment in the county jail for a term not
exceeding 60 days, or by both such fine and imprisonment. [Lee County Land Development
Code Section 1 -5(c))
XI. HEARING BEFORE LEE COUNTY BOARD OF COUNTY COMMISSIONERS:
A. This recommendation is made this 70' day of April 2010. Notice or copies will be
forwarded to the offices of the Lee County Board of County Commissioners.
B. The original file and documents used at the hearing will remain in the care and
custody of the Department of Community Development. The documents are available for
examination and copying by all interested parties during normal business hours.
C. The Board of County Commissioners will hold a hearing at which they will consider
the record made before the Hearing Examiner. The Department of Community Development
will send written notice to all hearing participants of the date of this hearing before the Board
of County Commissioners. Only participants, or their representatives, will be allowed to
address the Board. The content of all statements by persons addressing the Board shall be
strictly limited to the correctness of Findings of Fact or Conclusions of Law contained in the
recommendation, or to allege the discovery of relevant new evidence which was not known
by the speaker at the time of the earlier hearing before the Hearing Examiner and not
otherwise disclosed in the record.
A*-„\ D. The original file containing the original documents used in the hearing before the
Hearing Examiner will be brought by the Staff to the hearing before the Board of County
Commissioners. Any or all of the documents in the file are available on request at any time
to any County Commissioner,
XII. COPIES OF TESTIMONY AND TRANSCRIPTS:
A verbatim transcript of the testimony preso
court reporting service under contract to
documents and file in connection with this•
of Community Development, 1500 48 roe
Whe hearing can be purchased from the
ring Examiner's Office. The original
'e located at the Lee9bunty Depart tt
Fort Myers, Florida.
RICRARD A. GESC DT
LEE COUNTY HEA I G EXAMINER
1500 Monroe Stree , uite 218
Post Office Box 39
Fort Myers, Florida 33902 -0398
Telephone: 2391533 -8100
Facsimile: 239/485 -8406
Case DC12006 -00026 Page 70 of 70 07- Apr -10 -