On September 5, 2023, the Lee County Board of County Commissioners adopted Ordinance 23-22, which amends the Lee County Land Development Code (LDC) to standardize how building height is measured throughout Lee County, establish a “resiliency cushion” to allow voluntary freeboard in certain areas of the County, modify and clarify certain development regulations affecting development within South Seas Island Resort, and update existing regulations to provide flexibility for post-disaster redevelopment and codify existing department practices. The Board’s adoption of this ordinance follows a months-long process aimed at simplifying the Land Development Code and the Lee County Comprehensive Plan (the Lee Plan) to allow for more resilient construction through the implementation of clear and consistent regulations throughout Unincorporated Lee County.
On January 17, 2023, the County Commission provided direction to County Staff to review and bring back proposed amendments addressing height, setbacks, and other development limitations that are potentially restricting residents’ ability to rebuild their homes and businesses in a manner that reduces potential flooding threats. That direction included review of and proposed amendments to provisions of the LDC applicable to development of South Seas. Subsequent to receiving that direction, County staff from the County Attorney’s Office and the Department of Community Development developed
proposed amendments to the Land Development Code (LDC)
to advance the County Commission’s direction.
Prior to scheduling the proposed amendments for public hearing before the County Commission, County staff presented the proposed amendments to the following Board-appointed citizen advisory committees as part of publicly advertised meeting agendas:
- On May 12, 2023, staff presented the proposed amendments to the Land Development Code Advisory Committee (“LDCAC”). The LDCAC reviewed the proposed amendments to the Land Development Code (LDC) and recommended approval of the proposed amendments as modified.
- On May 22, 2023, the Local Planning Agency (LPA) reviewed the proposed amendments to both the Lee Plan and LDC and found them consistent with the Lee Plan.
The proposed amendments were then scheduled for a series of duly advertised public hearings before the County Commission to consider their adoption as follows:
- On June 6, 2023, a request to set the Ordinance for a public hearing was presented to the Board of County Commissioners during its publicly advertised Board meeting. The Board of County Commissioners voted to set the public hearing for the proposed ordinance for June 20, 2023 at 9:30 a.m.
- On June 20, 2023 at 9:30 a.m., the Board of County Commissioners voted to continue the public hearing for the proposed ordinance until September 5, 2023 at 9:30 a.m. to allow for opportunities for public input. The Board also voted to continue the transmittal hearing of companion amendments to the Lee Plan from June 21, 2023 at 9:30 a.m. to September 6, 2023 at 9:30 a.m.
In response to the Board’s direction, staff scheduled and held a series of public meetings to engage concerned citizens and residents regarding the proposed amendments. These meetings were held on:
- Thursday, July 13, 2023, 6:00 p.m. – 8:00 p.m., Captiva Civic Center, 11550 Chapin Lane, Captiva, FL 33924
- Tuesday August 1, 2023, 6:30 p.m., Pine Island Civic Association Regular Meeting, Pine Island United Methodist Church - 5701 Pine Island Road, Bokeelia, FL 33922
- Wednesday, August 2, 2023, 6:00 p.m. – 8:00 p.m., BIG ARTS, 900 Dunlop Road, Sanibel Island, FL 33957
- Wednesday, August 9, 2023, 5:30 p.m. – 7:30 p.m., Lee County Public Works Building, Conference Room 1B, 1500 Monroe Street, Fort Myers, FL 33901
Companion Comprehensive Plan Amendment (CPA2023-00004)
Consistent with the Board’s direction, staff conducted a comprehensive review of the Lee Plan to identify potential barriers to post-disaster redevelopment and identified two provisions (Goal 23 and Policy 23.3.2) that required modification for consistency between the Lee Plan and the Land Development Code. On September 6, 2023, the Board voted to transmit the Lee Plan amendments to the State reviewing agencies for review and comment prior to being considered by the Board at an adoption hearing.
The adopted amendments to the Land Development Code accomplish the following:
1. Standardize the method for measuring building height within Unincorporated Lee County.
The various methods for measuring building height in Unincorporated Lee County are spread throughout the LDC and vary depending upon a property’s location within the County. Current regulations establish the following starting points for measuring a building’s height:
- Grade, which is defined as the average elevation of the street or streets abutting the property as measured from the centerline; or
Grade (base flood elevation); or
The minimum required flood elevation; or
The minimum design flood elevation; or
The lowest horizontal member at or below the lawful base flood elevation; or
The average grade of the lot in question; or
Mean sea level
Similarly, the finishing point for measuring a building’s height varies depending upon a property’s location within the County. Current regulations establish the following finishing points for measuring a building’s height:
- The highest point of the roof surface of a flat or Bermuda roof; or
The peak of the roof; or
The deck line of the roof; or
The mean level between the eaves and ridge in the case of gable, hip, and gambrel roofs.
The amendments provide for one method of measuring building height throughout Unincorporated Lee County as follows:
- Starting point: The lowest minimum habitable floor elevation for which a building permit may be issued.
- Finishing Point: (1) the highest point of the roof surface of a flat roof; (2) the deck line of a mansard roof; or (3) the mean height level between the eaves and ridge of gable, hip, shed and gambrel roofs.
In addition to the above, maximum building height standards for special areas have been relocated in a manner that consolidates height standards within one section of the LDC (Section 34-2175). In locations where a maximum building height standard is calculated based on the least or most restrictive of more than one measurement method, these alternatives have been eliminated to provide for the least restrictive height measurement. Together, these amendments simplify administration, provide for clarity and consistency for property owners and design professionals, and reduce the need for periodic modifications to building height regulations that may result from changes to the Florida Building Code and FEMA National Flood Insurance Program (NFIP) requirements.
2. Establish a “resiliency cushion” for buildings in areas most vulnerable to the effects of storm surge and wave action.
The amendments include a new section (Section 34-2172) that provides exceptions to height limitations for the purposes of resiliency. This new provision allows buildings to be designed with additional “voluntary freeboard” within coastal high hazard areas as defined in Chapter 6, and within Coastal A flood zones as defined by the National Flood Insurance Program’s Flood Insurance Rate Maps. This provision provides for increased flexibility and resiliency in areas most vulnerable to the effects of storm surge.
Section 6-479 of the LDC defines coastal high hazard area as “a special flood hazard area extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. Coastal high hazard areas are also referred to as ‘high hazard areas subject to high velocity wave action’ or ‘V Zones’ and are designated on Flood Insurance Rate Maps (FIRM) as Zone V1-V30, VE, or V.”
3. Modify and clarify the applicability of certain Land Development Code provisions as it relates to South Seas Resort.
South Seas Resort is currently governed by an administrative interpretation (ADD2002-00098
) that was issued in 2002 by the Department of Community Development, as requested by the Board of County Commissioners. This administrative interpretation summarized and clarified the status of development of South Seas Resort at the time of its adoption and is the document that governs redevelopment and future development within South Seas Resort.
The amendments affecting South Seas Resort are as follows:
- The reference to ADD2002-00098 in LDC Section 33-1611(e) has been removed. ADD2002-00098 will remain in effect and can only be superseded by a public hearing zoning action to change the development parameters established in ADD2002-00098.
A definition for South Seas Island Resort, and a corresponding map providing a graphic depiction of South Seas Island Resort has been added to LDC Section 33-1614 and LDC Chapter 34, Appendix I, respectively.
All references to South Seas or South Seas Resort have been changed to South Seas Island Resort to be consistent with the definition of South Seas Island Resort added to LDC Section 33-1614.
South Seas Resort is exempt from the density limitation for hotels on Captiva Island established in LDC Section 34-1805. As noted above, development within South Seas Island Resort must remain consistent with ADD2002-00098 until a request to rezone the property is approved by the Board of County Commissioners.
The amendments affecting South Seas Resort do not permit an increase in the maximum building height for the resort. As noted above, increasing the maximum height within the resort can only be accomplished through a zoning action.
The upland portions of South Seas Resort are located within the Outlying Suburban future land use category established by the Lee Plan. The maximum building height established in the Outlying Suburban future land use category is 45 feet (see LDC Section 34-2175). This height may be increased to 75 feet only if the applicant demonstrates through a zoning action that the additional height is required to preserve environmentally sensitive land, secure areas of native vegetation and wildlife habitat, or preserve historical, archaeological, or scenic resources (see LDC Section 34-2175(b), Note (2)).
4. Update certain regulations to increase flexibility for post-disaster redevelopment, provide for appropriate definitions, and codify existing Department practices.
The adopted amendments to the Land Development Code include the following miscellaneous amendments:
- A definition for island is now established in LDC Section 34-2. The term island is used throughout the LDC without a definition, and this definition will reduce potential ambiguities when interpreting development regulations affecting islands.
- The application initiation requirements for zoning actions in LDC Section 34-201 have been revised to be consistent with current Department of Community Development practice. Changes to these regulations clarify:
o Who may initiate a zoning action;
o The initiation requirements for properties controlled by a condominium, timeshare, or homeowners’ association; and
o The initiation requirements for zoning actions affecting individual property owners.
- Parking requirements for existing developments contained in LDC Section 34-2011 now allow buildings that have been substantially damaged by fire or other natural forces with the opportunity to build-back without being subject to current parking requirements. This is consistent with the build-back rights established in LDC Section 34-3241(b)(2)b.
- The maximum building heights established for each future land use category in LDC Section 34-2175(b) have been expanded to include all of the current future land use categories established in the Lee Plan and are now organized in tabular format.
- Regulations establishing permitted encroachments into required setbacks (LDC Section 34-2191) have been modified to allow an exterior stairway providing access to the main entrance of a dwelling unit to encroach up to three feet into a side setback or eight feet into a front setback, subject to public safety-related review, to provide increased flexibility in adapting existing and new buildings for resiliency purposes.