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Mining interests consider historic Corkscrew community guilty of "residential encroachment"

The Lee County Executive Regulatory Oversight Committee met on May 14th to consider, in part, proposed changes to the Lee County Land Development Code relating to rock mining.

Greg Stuart, urban planning consultant, along with Beverly Grady, Fort Myers Land Use Attorney, both representing Westwind Corkscrew Mine, proposed changes to a "strategic mining" map that would add 3800 acres to more than 21,000 already proposed.

In addition to proposing additional mining acreage, Stuart labeled rural residents of the historic Corkscrew Community a threat to a valuable resource (limerock deposits) through "unwarranted residential encroachment". The label was applied by Stuart, despite the fact that acreage proposed falls entirely within the Density Reduction Groundwater Recharge (DRGR) areas which limit residential density to one unit per 10 acres.

Stuart further recommended that residential property transactions within 1 mile of potential mining areas require affidavits acknowledging mining and blasting activities. He also suggests that residential properties affected by mining activities be rezoned RPD to require notifications and buffering - essentially placing the regulatory encumbrance upon established residents.

Residents are scheduled to meet with Lee Community Development Staff on May 22nd to offer comments and make recommendations regarding the strategic mining plan and changes to the Land Development Code.

Included below are Stuart's comments and recommendations to Mary Gibbs, Director of the Lee County Department of Community Development:


 


STUART AND ASSOCIATES
Planning & Design Services


 


Memorandum
 


Date:    May 9, 2003

To:        Mary Gibbs, Director

From:    Greg Stuart, AICP

RE:        Draft LDC Excavation Rules

It was a pleasure speaking with you earlier this week regarding the draft Mining LDC changes. As you know, I am representing the Westwind Corkscrew Mine with regard to ongoing IPD Amendments. But also I know that you are aware, that for over the past ten years I have had a keen interest in preserving the integrity of DRGR lands and Rural lands within the context of sound regional planning. Thus, in disclosing these interests I would like to offer my formal comments regarding the LDC Mine Amendments.

From a broad perspective Staff is to be applauded for identifying the need to protect important mineral resources. The Potential Mining Area Map is a sound first step to implement the goal of protecting strategic mineral resources. To that end in the 2002 Fall Beverly Grady and myself discussed this issue with Paul O'Connor and planning staff. During that meeting we presented and gave to staff our mapping analysis of SE Lee County. Findings from the Lee County DRGR mapping analysis more or less coincided with Staff potential mining area recommendations. For your convenience and under separate cover we will be submitting to your office the final SE Lee County Mapping Analysis. The .major difference in Staff recommendations from ours is that we suggest the inclusion of the east half of Section 23 and Section 24 (T46S, R27E) along east Corkscrew Road next to the Collier County boundary. These two sections are currently omitted from the Draft Map. It is important to note that these two areas are characterized by an absence of adjoining residential properties, are relatively isolated and separated from all rural residential areas, are completely distant and separated from all urban residential uses, are existing agricultural properties with no environmental constraints, and have other attributes that advance the ability for sound mining practices. Consequently, we respectfully request that the Potential Mining Map be proactive in its planning vision and include these two areas.

Before I present specific comments and recommendations to the Draft LDC rule, it is important to note that the 30 September 02 Strategic Mining Report stated that there are only a few areas where limerock deposits meet FDOT specifications. On page 3 the report further stated that these deposits "are a valuable resource to the County and surrounding areas". Given that context I find it troubling that Staff has completely ignored the main threat to these resources. This main threat is the unwarranted residential encroachment and urbanization of Rural and DRGR areas. Given the rapid rate of Lee and Collier County growth and urbanization it cannot be questioned that residential encroachment into these identified strategic mining areas present significant current and long-range regional economic and land use problems. Yet, the Draft LDC Mine rule has not made any attempt to address this issue. It is inconsistent that the County has as an objective the protection of these important regional resources yet the regulatory burden is being solely placed on mining. This burden is being compounded by proposed new rules such as 34-1674(5) and 34-161(2)(b) that in fact make mining operations more vulnerable to the problem of increased urbanization and residential development in DRGR and Rural areas.

I recognize the difficulty in limiting residential development within in these strategic mining areas in attempting to segregate residential uses from mining activities. However, other new rules need to be put in place that, at a minimum, mandate proper notification of residences in areas proximate to the identified preferred mining areas. This approach reflects sound planning practices given the regional resource issues involved along with general fairness principles. Consequently, I respectfully recommend that as part of this regulatory, process, Staff draft rules to require residential development and home building notification for any project up to one mile from the identified Potential Mining Map. Residential home building and subdividing activities should have mandatory notification requirements that they are locating within areas subject to mine blasting, industrial use truck traffic, etc. These draft rules should be presented to the BOCC for their input and direction along with subsequent action. Some regulatory concepts are as follows-

  • Affidavits to be submitted as part of residential home permitting that acknowledges that, the permitting, home owner is aware of proximate mining and blasting activities
  • Mining notification language needs to run with the land in recorded residential subdivisions within one mile of the identified mining areas; and
  • All proposed residential subdivisions within one mile of the identified Potential Mining areas are required to be rezoned to RPD to allow for appropriate notification provisions, buffering and the like.

My specific comments and regulatory suggestions are as follows-

  • Sec.34-1671
Purpose of subdivision.

 

Comment: The first paragraph and first sentence, "mining operations are inherently incompatible", is too absolute and needs clarification. The draft enabling language exposes bona fide mining operations to future residential compatibility problems by not clearly identifying that well located mines are not inherently incompatible, For example, one need only to look at long standing west Pine Island Road mining and processing operations that adjoin the Royal Tee Country Club and other residential areas. These operations have not discouraged Bonita Bay Development Company from acquiring hundreds of acres for future residential development that are within immediate proximity of mining and processing operations. The inherently incompatible language is just not necessarily true.
 
Response:

"The County finds that mining operations are inherently incompatible with most urban uses and clustered rural residential uses that are located within defined neighborhoods".

 

  • Sec. 34-1674 (5)
General Policies for approval.
Comment

Paragraph 5 may present numerous financial, operational and legal problems for bona fide mining Operations. I can think of no legitimate reason for making it a requirement that a long duration mining operation be required to go through additional public hearing processes after they have been zoned, permitted and operating for years. This is especially true if the mine is within the identified Potential Mining Area. It is logical to expect that most changes within that time frame will be more residential development and that most new residents will turn out in protest, seeking to shut down the operation through this new public hearing process. The mining operation cap completely hinders the goal of protecting these strategic resources and is completely counter productive. In fact it can be argued that the new rule will encourage residential encroachment.

Response:

Paragraph Five should be deleted.

 

  • Sec. 34-1675. Paragraph(b)3.c:
Applications for general mining permit.

Comment:

An Open Space Design Plan is a new regulatory requirement. The-new rule may be an attempt to customize mine layouts to protect trees, etc. The new rule does not reflect mine operational realities that more or less preclude customized designs based upon arbitrary staff desires to preserve a cluster of trees, etc. This is especially true for mines identified within the Potential Mining Area. There appears to be no nexus of the need to protect strategic mining resources with the attempt at over-regulation.
 
Response: Either delete sub-paragraph C in its entirety or revise paragraph C as follow: "A survey and FLUCCS map to identify existing native plant communities and trees along with important adjoining preserve areas".

 

  • Sec. 34-1675. Paragraph (7)(f & h):
Application for general mining permit.
Comment:

For obvious reasons "adverse" impacts needs to be clearly defined.
 

Response: Insert the following sentence throughout the draft regulation when the new rule calls out "No Adverse Impacts" for surface and subsurface environmental issues--" The issuance of appropriate State Water Management District and DEP mining and environmental resource permits will demonstrate compliance with the no adverse impact requirement.

 

  • Sec. 34.1676 (c)
Application for a mining operation permit.
Comment: The "'All onsite and offsite improvements" language is overly broad and needs greater definition.
 
Response:

For obvious reasons, restoration activities and other, post-mine requirements need to be exempt. More clarification is needed.

 

  • Sec. 34.161 (c.2 & c.3)
Site Requirements General Provisions

Comment:

The "Avoid adverse effects" standard is to broad and needs to be defined. This is so in that the perception of adverse effects clearly may be different from person to person.
 

Response:

Examine the possibility of inserting standardized measurements for adverse impacts such as definable-reduction in agricultural yields, declining residential property values, a reduction and/or degradation of conservation areas, and definable nuisances stemming from noise, dust, lighting and order. For the identified Potential Mining Areas, the standard should be "Avoid significant adverse effects".

 

  • Sec. 34.161(2)(b) 
Site Requirements Setbacks

Comment:

The "500-ft radial setback from existing and proposed well sites" standard is new and may serve to indirectly encourage residential encroachment. This is so in that for planned future mine phases new homes may be developed that may restrict the mines phasing plan due to the location of residential potable wells. This new standard does not seem fair in that the regulatory encumbrance is being placed on the long standing mine operation. This is especially germane given the rules "proposed well sites" language.
 
Response: New exemption language needs to be inserted so as to place the setback requirement on new residential homes that choose to locate around existing bona fide mining operations. The "proposed well sites" language needs to be deleted. The new rule should read -"A 500-ft. radial setback is required for new mines from proposed well sites. New residential potable wells should be setback when ever feasible 500-ft. from existing mines and identified Potential Mining Areas.
   
   

2180 West First Street, Suite #503 - Fort Myers, FL 33901
Voice (239) 337-7176 - FAX (239) 337-2496 - GS@Stuarturbandesign.com

 

GS/chproject02.007/5 May03 LDCminingrulechangememo
CC: Beverly Grady

 

 

 

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