<Bookmark>Why does the Pine Island plan, which has been in existence for years, need to be changed?
In 2009, shortly after adoption of the Coastal Rural regulations for Pine Island, Lee County was sued by eight Pine Island property owners under the Bert Harris Act. The plaintiffs claimed, among other things, that the County’s adoption of Coastal Rural regulations inordinately burdened their property. The first case to go to trial was
Cammilot Partners, LLC, vs. Lee County (Case No: 09-CA-005630). On July 15, 2014, the Court ruled against Lee County finding the County liable for the damages resulting from the Coastal Rural regulations under the Bert Harris Act. The Plan needs to be revised to become consistent with State law and to reduce the County’s potential liability resulting from Bert Harris claims, inverse condemnation claims, and illegal exaction lawsuits.
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<Bookmark>What is the Bert Harris Act?
The Bert Harris Act (“Act”) is a Florida statute
(§ 70.001, Fla. Stat.). The Act provides a cause of action against a local government if the local government enacts a law, regulation, or ordinance that inordinately burdens, restricts, or limits private property rights without amounting to a taking under the State Constitution or the United States Constitution. The State Legislature passed the Act to protect the interests of private property owners by creating a separate and distinct cause of action from the law of takings, to provide for relief from the inordinately burdensome law, or the payment of compensation to the property owner.
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<Bookmark>Is the Pine Island Plan immune from the Bert Harris Act because it was adopted prior to the effective date of the Bert Harris Act?
The Bert Harris Act (“Act”) does not apply to the application of any law enacted on or before May 11, 1995. However, a subsequent amendment to a law adopted before May 11, 1995 can give rise to a claim under the Act if the amendment imposes an inordinate burden apart from the previously enacted law. While parts of the Pine Island Plan have been in existence prior to May 11, 1995, the Pine Island Lee Plan and Land Development Code provisions were subsequently amended. The current and threatened lawsuits challenge the County’s decision to reduce the density on Pine Island from one dwelling unit per acre to one dwelling unit per 10 acres and then down to one dwelling unit per 17 acres under the Coastal Rural land use regulations. Those regulations were adopted in 2003 and 2007, after the effective date of the Bert Harris. Also note, the County Resolution implementing the 910 limitations was adopted by the Board on March 14, 2006.
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<Bookmark>What are the potential damages from these anticipated lawsuits?
As with most lawsuits, the jury will determine the ultimate award of proper damages. However, some calculate the estimates regarding the
potential liability figures for Coastal Rural properties are between $60,000,000 and $220,000,000. Note that these figures do not include attorneys’ fees and litigation costs.
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<Bookmark>Who pays for these potential damages?
Any damage award in litigation on this matter would be paid out of the County’s general fund, which is accumulated from unincorporated Lee County’s entire tax base.
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<Bookmark>How do the amendments help manage growth on Pine Island?
The amendments include regulations and incentives for property owners to develop their land in a responsible manner, while maintaining their property rights. The amendments provide a Transfer of Development Rights program that highly incentivizes property owners to transfer their density off island to developments located in more, dense urban areas of the County, as well as the Purchase of Development Rights by the County through County programs to remove development protect the environment on the Island. Included within the amendments are incentives for property owners to continue agricultural uses and regulations that are designed to protect the rural character of Pine Island by requiring additional open space, buffers, and setbacks for new developments. In regards to hurricane evacuate the County will evaluate alternative mechanisms to improve evacuation clearance times within the Pine Island planning community, including but not limited to: access control; mandatory evacuation notices; one-way evacuation routes; and other mitigation measures in the county-wide emergency management plan.
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<Bookmark>Is Lee County going to build another bridge onto Pine Island?
At this time, there are no plans to build a new bridge. The Lee Plan amendments discourage construction of a new bridge due to the costs, design constraints, and potential impacts to growth patterns within Greater Pine Island.
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<Bookmark>What is the maximum density permitted in the Coastal Rural category?
The maximum density limitation is one dwelling unit per 2.7 acres with a maximum of one dwelling unit acre possible if certain requirements are met.
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<Bookmark>What is the current number of residential units on Pine Island?
As of 2014, Greater Pine Island had 5,890 residential units.
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<Bookmark>If density is increased on Pine Island, will the residents be able to evacuate during a Hurricane evacuation?
Yes. The roads and bridges from Pine Island to the mainland have sufficient capacity to handle an evacuation of all of the Island’s residents and those residents from barrier islands that traverse Pine Island to gain access to their homes. It’s important to note that Matlacha’s heaviest traffic issues occur during Tourist Season. Hurricane Season occurs from June 1st to November 30th, sharply peaking from late August through September. The potential for a Hurricane evacuation to occur during heavy Tourist Season is highly unlikely. It’s also important for residents to note that those activities that occur during Tourist Season that cause the traffic delays would not be present during a hurricane evacuation.
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<Bookmark>What are the Open Space requirements under the Pine Island Plan?
The Pine Island Plan includes a number of items designed to protect the rural character and feel of Pine Island. The LDC amendments require greater perimeter setbacks and buffering to screen and separate the proposed development from existing uses and roadways. In addition, the amendments require between 50% and 70% open space for each development, depending upon the density of the development. This is how the open space requirements will work: if a developer is creating a subdivision at the standard allowable density, the developer has one of two options. The developer may elect to cluster the units on smaller lots and provide 50% common/clustered open space. Alternatively, the developer may choose to have large lots with a maximum of 25% lot coverage. Under the second option, 75% of each lot is left as impervious development. In addition to the minimum lot coverage requirement, each development will have buffers, landscape areas, dry dentition, surface water management systems, etc., which are all part of the overall open space for the project. If a developer chooses to develop under the “Adjusted Maximum Density” requirements, the developer has one option. The proposed regulation mandates that they must cluster the dwelling units into smaller lots on 30% of the site and permanently maintain 70% of the site as existing native habitat, native habitat restoration, or continued agricultural use. County Staff and Planning Consultants believe these open space, buffering, and setback requirements, in addition to existing regulations regarding invasive exotic tree removal, will protect the unique rural character of Pine Island.
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