Court overturns bulk of Cypress Creek mall ruling

The U.S. Court of Appeals has overturned the bulk of a lower court opinion that halted construction of the planned Cypress Creek Town Center, but mall developers still must clear environmental hurdles before resuming construction.

The three-judge panel in Washington reversed a 2010 ruling by District Court Judge Royce Lamberth that the Army Corps of Engineers' permit review process wasn't thorough enough.

"They reversed what we won, but then we won what we had lost," Sierra Club spokeswoman Denise Layne said today. "The important thing is that they did not reissue the permit. The developer still has to address the wildlife issues."

The Richard E. Jacobs Group, a Cleveland-based mall developer, and Tampa-based Sierra Properties won Pasco County's approval for the 1.3 million-square-foot shopping center in 2004. The Corps of Engineers issued a permit in 2007 for construction on the creek's wetlands.

The project has spent the ensuing years entangled in one lawsuit after another as opponents have tried to halt it.

The Sierra Club sued to stop the project, alleging that it violated the Federal Clean Water Act and the Endangered Species Act, among others. The club pointed to two species in particular: the wood stork; and the eastern indigo snake.

Lamberth agreed the corps should have required developers to perform an environmental impact statement instead of a less-thorough environmental review of the 510-acre site, which straddles State Road 56 just west of Interstate 75.

The appellate court panel ruled the permit complied with all federal regulations, with one exception: it didn't go far enough to protect the habitat for the eastern indigo snake, which is listed as threatened by the Endangered Species Act.

"We reject the Sierra Club's wood stork claim but find that the Corps failed to adequately address indications of an adverse effect on the indigo snake," the judges wrote in their ruling issued Tuesday.

Layne said the Sierra Club never intended to stop the mall: "We just want them to do it right."

That means reducing the size of the parking lot and expanding the wildlife corridor along Cypress Creek, she said.

While the Jacobs Group has spent the past seven years fighting regulators and environmentalists, its major competitors have opened The Grove and the Shops at Wiregrass within a few miles of the Cypress Creek site.

In an email Wednesday to county administrators, Jacobs' Vice President Tom Schmitz said the company would "fully cooperate" with the Corps and the U.S. Fish and Wildlife Service on the environmental issue.

"The Jacobs Group is confident that this development will now finally proceed forward," he wrote. "We remain committed to this project, this location, and to bringing new jobs and tax revenues to Pasco County. Further, the scope of the project remains as it was planned in terms of square footage of retail, office, hotel and residential uses."

It's unclear who would anchor the new mall. Initially it was planned to have a SuperTarget, but the Minneapolis-based retailer withdrew as the project bogged down with regulatory problems.

Two other major tenants – Circuit City and Linens N' Things – have gone bankrupt, and several other stores already have opened at competing malls.