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Tribe versus FPL is war of words

LABELLE — The Tribe’s three-year legal battle against a 2011 Hendry County land zoning change that could clear the way for a mammoth electrical power plant to be built next door to the Big Cypress Reservation has become a war of words.

For the Tribe, lawyers argued in trial July 14-17 at the Hendry County Courthouse that the zoning change cannot be interpreted to allow the power plant because it is inconsistent with the county’s comprehensive land plan – a document that precedes and trumps zoning changes.

On the other side, lawyers for Florida Power & Light (FPL), Hendry County and McDaniel Reserve Realty Holdings maintained that both the zoning change and comprehensive land plan allow the power plant because, though the documents use different words to describe the land uses, the words are interchangeable.

Definitions of “utility” and “electric generation” clashed, according to witnesses called to testify by either side.

The property, about three football fields from the future Ahfachkee High School on the west side of County Road 833, was rezoned from agricultural to PUD, a planned unit development of mixed uses, such as homes, shops, schools, industry and utilities. However, do the words “utility” and “industry” sanction plans to build one of the largest power plants in the United States on the property?

“Yes,” said Roxane Kennedy, an operations vice president for FPL during testimony. Hendry County associate planner Sarah Catala agreed on the stand as defense lawyers moved to prove that a power plant is equally a utility and an industry.

Robert Pennock, a member of the American Institute of Certified Planners and a professor of applied demographics at Florida State University disagreed. He said the use of different words to define the same thing in a comprehensive land plan “would lead to mass confusion.” Pennock said the rezoning order and the land use plan are contradictory and pocked with “jibbery general statements.”

Pennock testified that the county had already defined “utility” and “electrical generation” by use of the very words in the comprehensive land plan. “Utility” showed up 275 times in the land plan but never in the context of a power plant.

“The term ‘electrical generation’ shows up only in industrial use,” Pennock said. “Utilities” is used throughout the plan when referring to water, sewer, electricity and other services for common use, such as in homes and businesses.

“There is no logical reason to think that ‘utility’ means electrical power plant,” Pennock said.

The fight was initiated in June 2011 by the Tribe after the county changed the property’s land zoning from agriculture to PUD at the urging of former landowner Eddie Garcia, who sold the property to FPL. Garcia is a developer from Virginia Beach and the owner of McDaniel Reserve Realty Holdings.

Samuel Tommie, who attended the trial as a concerned member of the Seminole Tribe, said the defendants have been “working the system all along.”

“It seems to be that they have language written certain ways so they can say it means something different. They keep trying to reinterpret for their own good to get what they want,” Tommie said.

In pretrial hearings, Lee County Judge Donald Mason laid ground rules that wildlife, wetland or water were not to be argued. Testimony could only apply to whether the zoning change was made in harmony with the county’s comprehensive land plan.

“If the answer to the question is, ‘Yes, a power plant is allowed,’ then you can get into the appropriateness,” Mason said. “If no, it’s a game ender.”

Mason hopes to deliver his decision by Sept. 1.

But the gorilla in the room for Tribal members was exactly the wildlife, water and wetland, and also the cultural and historical significance of the land. And because some land use policies require that environmental and historical aspects of land be surveyed and documented, some wetland maps and archaeological reports were permitted as evidence to prove that mandated reports were completed.

An assessment of the land provided by FPL via veteran Florida archaeologist Bob Carr, however, revealed a military trail used during the Seminole Wars that could be entered into the National Register of Historic Places.

Among nearly 30 identified archaeological sites, eight were listed as possible for the historic register. The trail runs diagonally from the northwest corner to the center border along Snake Road.

Items found at some sites, according to documents, were prehistoric shell mounds, possible munitions from the 1800s, a Seminole brass strip likely from the 1800s and at least one indicator of a prehistoric burial.

In the context of water and wetlands, a map of the area used at trial showed the rezoned area and where FPL might build the electrical plant structure. Not permitted was testimony that the map included 850 acres of nature preserve.

According to the South Florida Water Management District, the property is in the Lower Western Basins, which are tributary to the Everglades and subject to regulation by the state’s Everglades Forever Act.

The trial also did not include a Department of Interior U.S. Fish and Wildlife Service letter sent to FPL in 2011 stating that the land is a proven habitat for several endangered species, including the caracara bird and the Florida panther. All but 6 acres of the land is included in the agency’s Panther Focus Area.

But FPL spokeswoman Sarah Gatewood said that no definite plans have been made to build any electrical power facility on the land.

“We are always conducting ongoing plans and looking into places all over the state. No definite site has been picked out or plans made. Hendry County is just one place we are looking,” Gatewood said. “Basically, we’re always looking and planning toward the future.”

However, FPL has filed a succession of 10-year plans in recent years to the Florida Public Service Commission that exponentially expanded plans for a site in Hendry County.

In 2010, the plan called for a solar energy facility on a 1,500-acre location to be determined later; in 2011, the plan suggested a solar or a fossil fuel energy facility. In 2012, the plan put the plant on the 3,120-acres site immediately north of the Big Cypress Reservation boarder. By 2013, the 10-year plan revealed that the plant would likely be a natural gas-fired combined combustion operation to be constructed after 2016 with the possibility of solar produced energy.

During testimony, Kennedy said the footprint of the plant could be the size of the West County Energy Center in West Palm Beach, which could cover 300 to 400 acres and consist of three sets of three 15-story steam emission towers, combine generator units for each set and large peripheral water cooling pools.

The company’s 2014 10-year plan indicates that about 22 million gallons of water per day will be required from the Florida aquifer to operate the plant. The aquifer is the main source of water for Hendry, including all predominately agriculture dependent neighbors.

Gatewood said the community, local government “and all stakeholders” will be notified if or when plans to definitely built the plant move forward.

“Every decision we make is focused on what is right for our neighbors, stakeholders and the environment,” Gatewood said.

The Tribe is also in the midst of a second separate lawsuit with Hendry County to overturn an amendment to the zoning change, passed by county commissioners in May, that the lawyers say opens the door further to industrial intrusion countywide.

For Tommie, too much is at stake for the Big Cypress community for the power plant to be allowed. Wildlife, water, the night sky and the everyday peaceful environment will be damaged. He said the power plant would be like a knife in the back of all Tribe members.

“At the core of the community, we live here because we enjoy being a part of nature. It’s who we always were,” Tommie said. “If we want to be in the city we can go there, but this is our home. This is literally our ancestry.”