(ran North, East editions of Pasco Times)
Jim Kantor and Daisy, his Jack Russell terrier, like to walk the woods near their Crystal Oaks home. Occasionally, they spot a gopher tortoise scampering, as best as a tortoise can, back to its crescent-shaped tunnel and out of Daisy's range.
Kantor had these tortoises in mind more than a year ago, when he and some Crystal Oaks neighbors came together to oppose a new development in their back yards called Westchase, a subdivision with 78 homes and 135 villas.
By the time the development was approved, Kantor and others thought they had won a restriction that might protect the gopher tortoises in the path of the planned homes. But Kantor filed a formal appeal last week with the Florida Fish and Wildlife Conservation Commission after he received word that the developer, CDR Investments, would entomb the gophers on the property rather than move them.
"I do believe in property rights and development through the rules, " said Kantor, 67, a retired electrical engineer. "But there has to be some kind of coexisting and doing it the right way."
Clark Stillwell, an Inverness lawyer who represented CDR through its application process with the county, said the step that Kantor fears will signal the death knell for the tortoises _ a site plan submitted to the state that was different from the one approved by the county _ is commonplace.
"Modifications of a size of a phase is done on a regular basis," Stillwell said.
When Westchase was proposed, neighbors objected that the homes would be built too close together, that the subdivision's planned entrance off Crystal Oaks Drive was sinkhole-prone and that the 80-plus acres were home to an estimated 92 gopher tortoises, the resilient hardshells with a hankering for the same types of habitat favored by Florida's growing human population.
The county signed off on the plan for Westchase, and the developer agreed to this caveat: Any gopher tortoises discovered on site would be relocated, not entombed by bulldozers, as long as they did not carry the upper-respiratory disease that, according to state rules, prohibits their relocation.
"The developers said, look, we don't like to bury gophers either, and we are perfectly willing to relocate them," recalled Gary Maidhof, the county's director of development services, whose staff handled CDR's application to permit the subdivision. "But they did make the caveat, that's if we can get the permission from Florida Fish and Wildlife."
The Westchase site plan reviewed by Maidhof's department and ultimately approved by the County Commission included three phases of development, about equal in size. But late last month, when Kantor received a copy of the gopher tortoise permit issued by the state wildlife commission, he realized phase one had been vastly enlarged to encompass portions of the original phases two and three.
To qualify for relocation, the gopher tortoises had to be tested for the upper-respiratory disease prevalent in the species. If they test positive, the animals cannot be relocated, for fear of spreading the disease.
When Kantor saw that four of the 12 gopher tortoises collected from the enlarged phase one had tested positive, he feared the worst. What if, he asks, the tortoises with the disease were collected from outside the original phase one, the area that was approved in the county plan?
"Is it possible that the sick animals were outside the original area?" Kantor said. "I have no proof of this. I'm just asking."
The question is the main point of Kantor's appeal to the state, in which he asks the wildlife commission to investigate the changes in the phasing plan. He also wants to know precisely where in the proposed development the tortoises were collected for testing.
"If blood test samplings were conducted outside the BOCC-approved phase one area," Kantor wrote in his appeal, "what are the rules on this?" BOCC is short for Board of County Commissioners.
Stillwell, the lawyer for the developer, reiterated that changes in the phased construction, even after the plan is approved by the county, are common. Maidhof agreed that the county would have no problem with a modified phase plan. "Phasing's not that big of a deal," he said.
Kantor's questions are rooted in a deeper concern among Florida's gopher tortoise experts. While state policy mandates that tortoises with upper-respiratory disease not be moved, some tortoise activists say the hazards are overblown and less important than protecting the species.
"It's an extensive discussion among biologists," Maidhof said. Some say "it is not the bubonic plague of gopher tortoises, that gophers can live long, productive lives even though they're wheezing on occasion. (Florida Fish and Wildlife) is going to tell you disease is disease, and the last thing they want to do is put a healthy population at risk by moving the gophers."
In Kantor's case, neighbors who thought they had won a victory for the gopher tortoises are learning that the gophers are sick and will likely be entombed once development begins. In such cases, the state issues an "incidental take permit" _ the type of permit Kantor is appealing _ in exchange for a contribution to a state fund used to purchase gopher tortoise habitats.
Kantor's appeal was submitted Wednesday.
In this case, CDR must donate $68,058 to the trust. In exchange, gopher tortoises, their eggs and their burrows can be buried during development. The developer is also authorized to move the tortoises within the property boundaries to minimize tortoise deaths.
Amy Wimmer Schwarb can be reached at 860-7305 or wimmersptimes.com.