Last month, a 20th Judicial Circuit Court judge struck down Lee County’s decision to rezone former Conservation 20/20 land — property purchased to protect environmentally sensitive areas — for a new sewage plant.
The ruling — issued in response to a legal challenge filed by three nearby residents — granted a writ of certiorari, a form of judicial review that examines whether a government body followed proper legal procedures. The case is tied to major development planned along Alico and Corkscrew roads.
On Jan. 17, 2024, county commissioners voted to rezone 112 acres from Agricultural to Community Facilities Planned Development to allow construction of a wastewater treatment plant serving large-scale projects in the area. The plant is intended to support future phases of Kingston, a planned community of up to 10,000 homes that held its groundbreaking Nov. 13. Records show the first 5,000 homes also could be connected to the new facility.
A sewer infrastructure map shows how the Kingston development would connect to the proposed wastewater treatment plant along Alico Road, including force main routes and pump station locations.
Collier County government
Residents Marsha Ellis, Peter Spahhn and Serge Thomas filed the legal challenge in 2024. They live near the site, and part of the proposed sewer line was, and could still be, built directly under Spahhn’s property, according to court records.
Circuit Judge James Shenko issued his ruling Oct. 25.
Lee County Attorney Richard Wesch declined an interview but issued a statement through the county’s communications department regarding the ruling.
“The parties have 30 days to file a petition for second-tier certiorari review with the Sixth District Court of Appeal,” the statement said. “The county attorney’s office intends to vigorously defend the board’s zoning decision, which may include a petition for writ of certiorari to the Sixth District Court of Appeal.”
The Sixth District Court of Appeal, created by the Legislature in 2023, is based in Lakeland and has two judges appointed by Gov. Ron DeSantis.
Construction vehicles and trailers sit at the entrance to the proposed Alico Road wastewater treatment plant site, where work appeared to continue despite a court ruling that overturned the project’s rezoning.
David Dorsey
Site work at the wastewater treatment plant appears ongoing. The county has not said how much taxpayer money was invested in planning and design so far or whether it will halt construction in response to the ruling.
“The judge reversed the approval,” said attorney Ralf Brookes, who represented the neighbors, “so they don’t have the approval. If they are constructing things now, they’re doing it without the approval.
“I’m not sure how they’re going to address it. They will probably have to file a new application. The county is their own applicant, which is a bit strange. The county goes to the county for their own approval. They’re basically approving their own project.
“In those types of cases, there will be enhanced scrutiny.”
Brookes said that scrutiny should include consideration of Southwest Florida International Airport, located about 5 miles away. The Federal Aviation Administration does not recommend wastewater treatment plants near airports due to concerns about birds.
Workers and construction equipment operate near temporary structures at the future site of wastewater treament plant in southeast Lee County. A circuit judge’s ruling found the county’s approval was biased and not based on the required quasi-judicial record.
David Dorsey
He noted that treatment plants often attract birds, creating safety issues for airplanes and making the use incompatible with an airport zone.
Shenko’s ruling reflects similar concerns.
“The court finds that petitioners have standing to bring this petition for writ of certiorari based on their proximity to petitioners’ property (across the street) and the nature and scale of the subject rezoning,” he wrote.
Shenko noted the rezoned land used to be part of Wild Turkey Preserve and was purchased under the Conservation 20/20 program. It contains habitat for the endangered Florida panther, sits within 5 miles of the airport and lies between two natural flow-ways that handle surface water during storms.
Shenko wrote that all of these issues had already been reviewed during the quasi-judicial hearings before both the Lee County Hearing Examiner and the Board of County Commissioners.
He also identified flaws in the rezoning process both before and after the vote. Shenko ruled that the BOCC “improperly departed” from the quasi-judicial record and based its approval on “the direction of the board over the last four years,” information that had not been presented during the hearing.
Heavy machinery and contractor vehicles are stationed across the former Conservation 20/20 land in southeast Lee County, which was rezoned for a sewage plant before the court reversed the decision.
David Dorsey
Shenko concluded that the board’s actions demonstrated bias and a pre-determined outcome.
“The BOCC then voted summarily and unanimously to approve the county’s own rezoning request based not on the quasi-judicial record created at this quasi-judicial hearing but instead on the last four years of board direction,” Shenko wrote.
The ruling also found that the BOCC acted prematurely in 2019 by approving a prior rezoning action that later factored into the 2022 Kingston Settlement agreement. That agreement committed the board to building a wastewater treatment plant on Alico Road —two years before the rezoning hearing took place.
After the court ruling, Ellis said she attempted to deliver a copy of the decision to construction workers at the site but was turned away.
“There’s some crazy building going on over here,” Ellis said. “They are going full steam ahead.”