s:\committees\eroc\2018\18-01-10 eroc meeting\agenda 18-01-10 eroc.docx

EXECUTIVE REGULATORY OVERSIGHT COMMITTEE Community Development/Public Works Center

1500 Monroe Street, Fort Myers First Floor Conference Room

WEDNESDAY, JANUARY 10, 2018

2:00 P.M.

AGENDA

1. Call to Order/Review of Affidavit of Publication

2. Approval of Minutes – November 8, 2017

3. North Fort Myers Mixed Use Overlay, Chapter 33 LDC Amendments

4. Adjournment – Next Meeting Date: March 14, 2018

Persons with disabilities who need an accommodation to participate in the Land Development Code Advisory Committee meeting should contact Pam Hendry, 1500 Monroe Street, Fort Myers FL 33901 (239-533-8348 or Phendry@leegov.com). To ensure availability of services, please request accommodation as soon as possible but preferably five or more business days prior to the event. Persons using a TDD may contact Pam Hendry through the Florida Relay Service, 711.

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MINUTES REPORT

EXECUTIVE REGULATORY OVERSIGHT COMMITTEE WEDNESDAY, NOVEMBER 8, 2017

Committee Members Present: Randy Mercer, Vice Chair Sam Hagan Anthony Pardal Bill DeDeugd Jim Ink Michael Roeder Victor Dupont Committee Members Absent: Carl Barraco, Jr. Bob Knight Michael Reitmann Bill Ennen Darin Larson Buck Ward Tracy Hayden Matthew Petra Lee County Government & Representatives Present: Dave Loveland, Director, DCD Brandon Dunn, Planning Princ. Planner Audra Ennis, Zoning Manager Amanda Swindle, Asst. Co. Attorney Jessica Sulzer, Dev. Services Manager Pam Hendry, DCD Admin., Recording Dirk Danley, Jr. Zoning Planner Public Participants: Brian Hoops representing Captiva property owners Introduction Mr. Mercer called the meeting to order at 2:02 PM in the first floor conference room of the Lee County Community Development/Public Works Center, 1500 Monroe Street, Ft. Myers, Florida. Ms. Amanda Swindle, Assistant County Attorney, reviewed the Affidavit of Posting of Meeting and found it legally sufficient as to form and content. Approve Meeting Minutes – October 11, 2017 Mr. Bill DeDeugd made a motion to approve the October 11, 2017 meeting minutes. Mr. Jim Ink seconded. The motion carried unanimously. LDC Amendments to Ch. 30, 33 & 34 to address HB 1021 and Septic Mr. Dirk Danley, Jr. said this is two parts combined into one ordinance. The first part is based on the approval of House Bill 1021, and specifically what was changed in Florida Statutes 553.79. He said there was new language which basically says that a political subdivision may not adopt or enforce any ordinance or impose any building permit or other development order requirement that contains any building, construction or aesthetic requirement or condition that conflicts with or impairs corporate trademarks, service marks, trade logos, trade dress, color patterns, design scheme insignia, image standards or other features of corporate branding identity on real property for gas stations or a franchise as defined by 16 CFR436.1. He said the second part is that a political subdivision may not adopt or enforce a requirement that imposes any requirement signage which prevents the

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signage from being clearly visible and legible to drivers of approaching motor vehicles. This part is specifically to gas stations. He said instead of trying to create new requirements, we put in Chapters 30, 33 and 34 that we’re not trying to supersede the requirements of Florida Statute 553.79. Mr. Roeder said does this mean you can’t ask McDonalds to have a different color. Ms. Swindle said yes, the House Bill address entities that are considered franchises and the intention is to prevent application of any local regulations that would impair the branding of that franchise, like color, certain requirements on landscaping, or design of a building that would somehow interfere with the branding identity of the franchise. She said they decided the easy fix was to say that none of our regulations are going to be interpreted to conflict with that. Mr. Loveland said we haven’t had that issue in unincorporated Lee County a lot, but the way this is written, particularly as it relates to gas station signage, nothing that impairs the view would affect our ability to regulate signage the way we have been traditionally in terms of setback requirements or height, those kind of things that can potentially be affected. Ms. Swindle said it’s more focused on being able to view the price of gas from the roadway verses any kind of design standards, height requirements or setbacks. Mr. Danley said this is an already effective statute and it’s effective retroactively as well. Ms. Ennis said the proposed change to Chapter 34 is to strike the reference to septic tanks. She said the language was added in 2005 at the request of a citizen where we discuss in 34-1575 development other than minor structures being prohibited seaward of the old coastal construction control line (CCCL). That section was amended to include a specific prohibition against septic tanks and also structures being cantilevered, supported, overhanging or extending. She said we’re currently dealing with a permit for a property in Upper Captiva that we are unable to issue, which brought it to our radar. She said the bigger picture issue is that we have prohibition in our Land Development Code (LDC) for a type of development that we don’t specifically regulate. Septic systems are approved by the Lee County Health Department and seaward of the CCCL is regulated by DEP. This is a duplicate regulation and our position is that we’re relying on the area experts for the coastal zones and for the Health Department to handle that permitting process. She said the Captiva applicant has gone through the process and received a permit to be seaward of the CCCL to install an AWT septic system which subject to annual monitoring and an operating permit similar to a small waste water treatment plant. She said Lee County does not inspect or permit them and we feel it’s inappropriate for us to even have this language relative to the location of septic systems and we would rather leave that process to the scientific experts with DEP and the Florida Health Department. We not proposing to strike the language dealing with the building location so we are leaving the language for the cantilevering, overhanging, extending in the LDC. We’re only proposing to strike the septic systems because they are not regulated by our office. Mr. Mercer asked if there’s any reason why the other regulatory bodies who do have power over something like this are not directly referenced in this. Ms. Ennis said there’s no reason but we could take a look at that.

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Mr. Brian Hoops said he represents several property owners on North Captiva who think this is a very important issue, a deregulation of septic tanks along the county’s coastal construction control line (CCCL). He said there’s a DEP line that sits landward, more toward the land than the county’s old line so there’re two lines that we’re dealing with. He said everything that’s seaward of DEP’s line DEP regulates, but the county does regulate things that are seaward of the old CCCL as well, like the placement of houses, so the county does regulate things seaward of their CCCL. He said the county has basically said they don’t regulate the science and the construction of septic tanks and that’s correct, but he thinks we’re conflating two different things here. One is the regulation, the scientific aspect of it and two the county’s prerogative to regulate the placement of things. He said a simple example is the fact that the building code does in fact regulate the minutia of how houses are built and they regulate where you can place the house. He said the FDEP does not care if you take a septic tank and put it on top of endangered flora or a sea turtle nest, they don’t care because that’s not their job. He said if you look at the statute 381.0065(4)(r) that regulates the on-site septic tanks, it says specifically, nothing in this section limits the power of municipality or county to enforce their laws for the protection of the public health and safety. He said this recognizes that while the county might not be in the business of regulating the scientific aspects of septic tanks, it has the power and the duty to regulate for the general welfare and determine where septic may be placed and where they may not be placed. He said this remedy is seeking to address an issue that’s very small, there’s one property owner seeking a building permit that have not sought a variance and instead the County has proposed to amend the LDC which applies to the whole county. He said there are other less broad means to achieve the goals that this amendment seeks to achieve, there are several people and businesses that depend on clean waters in Lee County. Several businesses and property owners like the fact that we have great beaches. The people I represent like the fact that they live near waters that are fairly clean and the beaches are beautiful and they hope to keep it that way. That is why they oppose this proposed amendment. They ask you to consider what scientific basis there is to deregulate septic tanks so close to the water, not the science with the placement, and it’s for that reason that we oppose this deregulation of this proposed amendment. Mr. Mercer said the word appurtenant typically means things that are attached to the property, go with the property. It means annexed or belonging to a more important property. Why would removing septic tanks from this language change the fact that a septic tank is appurtenant to a property, it’s part of or annexed, in addition to. Why would it change anything if it were removed? Ms. Swindle said the two words, septic tank, are an explicit prohibition of septic tanks that the county has no place in the permitting or the regulation of. There was a mention of why can’t a property owner just seek a variance. If we were considering whether to grant a variance, the fact that they’ve been permitted through DEP and the Health Department would probably be the deciding factor on whether to grant the variance. So that’s just creating an additional circulatory process that we think is essentially unnecessary. She said she doesn’t think she agrees that DEP doesn’t care if you put a septic tank on a turtle’s nest. It’s a pretty robust regulatory process to go through, and it’s not just a normal standard septic tank we’re talking about, it’s a technologically advanced process that’s been approved by the Health Department. She said she would not say that removing these words is a complete deregulation of septic

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tanks because there’re already state official scientists who look at this and approve that process. Mr. Victor Dupont asked if the county can’t issue permits seaward of the CCCL until DEP has issued a permit. Ms. Ennis said that’s correct. Mr. Roeder said he’s kind of surprised we don’t see the applicant on this here to explain. Ms. Swindle said there’s a current appeal for the denial of the permit based on the fact that they have the DEP and Health Department approval. She said the building permit was denied based on these two words in this provision and we’re trying to fix the situation. Mr. Loveland said we saw a condition in the ordinance that we didn’t think made sense and it’s consistent with the charge of this committee, based on the kind of questions that you ask us to answer in relation to ordinance changes. We’ve never disputed the fact that the county has the prerogative to regulate certain things, it’s a question of do we need to in this case, given the fact that there’re already two other entities that regulate the placement of these septic tank systems, and we don’t regulate septic tanks in any way anywhere else. This is just a question from a regulatory standpoint, does it make sense to have this reference in here when we don’t regulate septic systems. Mr. Ink said if you allow a structure to pass the CCCL is that consistent with the conservation management part of the Lee Plan? Mr. Dunn said he’d have to review that for that specific question before it moves forward to the next set. Mr. Ink said that’s one of the parts of permitting a septic in this environment, they look at the 30 year erosion line and if they run into an area where the 30 year erosion is going out to sea, that’s probably how this was permitted, that it’s not in danger for the EPL line. But, in the coastal management language, it’s not specific, but it could be interpreted as the county doesn’t want to put structures of any kind, except shoreline protection, on the seaward side of the coastal construction line. Mr. Roeder asked how far it is from the waterline? Ms. Ennis said the site plan depicts the septic system approximately 216 feet from the waterline. Mr. Ink said we have to look at it that somebody else is going to do it if this language goes away, so the distance right now is kind of irrelevant. Mr. Dupont said it’s not really the power of the county until the DEP has issued their permits, and if they deny it, the county can’t override it. Mr. Ink said but the county can intentionally institute higher restrictions in their Lee Plan. Mr. Pardal said even though the county doesn’t regulate it, what is the harm in just leaving the language in? This is one case, if we find out there’re more properties involved with this, what’s the harm of leaving it in now? Why are we rushing to take it out now when it’s just one property at this point? Ms. Swindle said this one property is what triggered us to take a look at it and decide whether or not it makes sense to have this language in the code. Mr. Pardal said it seems like it’s going from one extreme to another, completely absolving the language. Is that the right approach to take? Ms. Swindle said our staff considered it and we thought that it was more appropriate to remove the county from the

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septic regulation entirely considering there’s already a pretty substantial permitting process and we don’t have the kind of technical expertise or staffing to essentially make any kind of argument to override the process that the scientists of DEP and Department of Health go through when they permit this. Ms. Ennis said we are dealing with an imaginary line. It’s difficult for us to ascertain if you’re on the seaward side of this imaginary line verses just on the landward side, what is the net difference, we don’t know. Mr. Ink said that imaginary line was set as a no build zone to protect the beaches. He said he put those monuments in, they did it when it was established that nothing went on the outside of that imaginary line except beach dune walkways. Mr. DeDeugd said he has an issue with septic tanks close to the water, but if it’s the regulation that the county wants to keep its hands away from he doesn’t understand why they put it in there. Mr. Roeder said the county has a broader mandate than just the health aspects, it’s development and this is a way that we can draw a line in the sand. He said he has mixed feelings too because the Health Department finds that it’s ok from a water quality standpoint, but erosion and sea level rise are things to be worried about. Mr. Ink said wetland protection, rare and unique habitat protection, that’s where I was going with on the Lee Plan. Most of this area is a accreted shoreline which has got beach dunes and unique habitat and under LeePlan Policy 104 we have the jurisdiction to control it, whether it’s in the best interest of Lee County to say that line means that. From a technical standpoint I agree there that if you walked into a variance and say, I have a permit, it’s kind of hard to turn down, unless you say this is not consistent with the Lee Plan. Mr. Mercer said his personal thought would be eliminating the word, septic tanks, since there is another governing body, but he would like to leave the word, other, in so that more brilliant minds than us could argue whether or not a septic tank is an appurtenance to a house. Mr. Ink said or you could eliminate the entire sentence “Minor structures do not include septic tanks or other structures appurtenant to, cantilevered, supported by, or overhanging, or extending the principal structure” and add in after what minor structures are, and no other structures are permitted. They’re already outlawing cantilever, supporting, overhanging, the question is do we want to allow any development on the seaward side of the ‘78 line. Mr. Dupont said personally he thinks that’s opening a can of worms, having certain things be forward of that line. If you’re going to let a septic tank go in, what’s to stop the next guy arguing what his cantilever’s going to do, certainly not spoil the water. Mr. Pardal said he doesn’t see the point in taking it out. it is drawing a line in the sand at this point. If we allow this, who’s to say what’s next. Mr. Ink said looking at it from this standpoint, which is different from how he looked at it on the LDC Committee, he would leave it alone because it’s more restrictive than where they want to go. Mr. Hagan said he’s leaning on wanting to keep the language simply because the variance process is probably available for certain circumstances where you can prove a hardship,

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etc. He said it’s kind of a, not in my backyard, concern as well. Mr. Dupont said he’s concerned with taking it out and allowing a septic tank to be forward of that line. Mr. Pardal asked if there is any scenario in which DEP would approve something, and if this language was still here that this would affect any permit? Ms. Swindle said that’s where we’re at now, a septic tank has been approved for a certain location and the only thing standing in the way of the building permit are the words in this provision. We have no argument with the permit or how it was approved or the science that went into that approval. Mr. Roeder made a motion to reject the strikethrough in Sec. 34-1575(a). Mr. Pardal seconded. The motion carried unanimously. Mr. Roeder made a motion to approve to balance of the amendment. Mr. Ink seconded. The motion carried unanimously. ADJOURNMENT The meeting adjourned at 3:02 PM. The next meeting was tentatively scheduled for January 10, 2018. s:\committees\eroc\2017\17-11-08 eroc meeting\minutes draft 17-11-08 eroc.docx

North Fort Myers

Mixed Use Overlay Chapter 33

LDC Amendments

EROC ORDINANCE EVALUATION GUIDELINES Proposed Ordinance: North Fort Myers Mixed Use Overlay, Chapter 33 LDC Amendments 1. What is the public interest that the Ordinance is designed to protect? The use and regulation of land. 2. Can the identified public interest be protected by means other than

legislation (e.g., better enforcement, education programs, administrative code in lieu of ordinance, etc.)? No.

If so, would other means be more cost effective? 3. Is the regulation required by State or Federal law? No. If so, to what extent does the County have the authority to solve the problem

in a different manner? 4. Does the regulation duplicate State or Federal programs? No. If so, why? 5. Does the regulation contain market-based incentives? No. If not, could that be used effectively? No. 6. Is the regulation narrowly drafted to avoid imposing a burden on persons or

activities that are not affecting the public interest? Yes. 7. Does the regulation impose a burden on a few property owners for the

benefit of the public as a whole? No. If so, does it provide any form of compensation? 8. Does the regulation impact vested rights? No. 9. Does the regulation provide prompt and efficient relief mechanisms for

exceptional cases? Yes, processes for variances and deviations are in place. 10. Even though there is an interest to be protected, is it really worth another

regulation? The proposed amendments provide alternative, less restrictive regulations.

11. Has this approach been tried in other jurisdictions? No. If so, what was the result? If not, what are the reasons? No new approach is

being proposed. 12. If this regulation is enacted, how much will it cost on an annual basis, both

public and private? If this regulation is not enacted, what will be the public and private cost? Unknown.

Department of Community Development Planning Section

MEMORANDUM

Date: December 20, 2017

To: EROC & LDCAC Committee Members

From: Mikki Rozdolski, Planning Manager

Subject: North Fort Myers Mixed Use Overlay Chapter 33 Land Development Code (LDC) Amendments Background The Board of County Commissioners recently adopted amendments to the Land Development Code (LDC) to encourage dense and intense development in appropriate locations and to facilitate infill development and redevelopment. These LDC provisions facilitate urban design within the mixed use overlay by providing alterative development regulations for conventional zoning districts that allow a variety of uses. On September 20, 2017, the Board directed staff to review and identify existing LDC community regulations that conflict with the alternative development standards permitted within the mixed use overlay and propose amendments where appropriate. Below is a summary of the proposed amendments. Summary of Amendments

Sec. 33-1533: Add a provision to allow properties located in the mixed use overlay to

utilize the alternative property development regulations provided in Chapter 34.

Sec. 33-1537: Amend the definition of Mixed-use to accommodate mixed use development that includes two or more non-residential uses. This is consistent with Chapter 34.

Sec. 33-1548: Delete an outdated Lee Plan reference.

Sec. 33-1571: Update LDC cross-reference and add provision to allow properties located in the mixed use overlay to utilize the alternative property development regulations provided in Chapter 34.

Sec. 33-1572: Add cross-reference to open space requirements for properties within the mixed use overlay. Clarify that the maintenance agreement will not be with the County, but will be in a format that is acceptable to the County.

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Subdivision IV: Delete unnecessary Subdivision heading. The regulations under this Subdivision are more appropriately located under the existing Subdivision III, Urban Design Guidelines.

Sec. 33-1581: Delete unnecessary language in Section title; add provision to allow properties located in the mixed use overlay to utilize the alternative landscape requirements in Chapter 10; and add language to differentiate what regulations are applicable to properties outside of the Mixed Use Overlay.

Subdivision V: Delete unnecessary Subdivision heading. No regulations are provided under this Subdivision.

Subdivision VI: Update Subdivision numbering to reflect deletions above.

Subdivision VII. Update Subdivision numbering to reflect deletions above.

DRAFT NFM Mixed Use Overlay LDC Amendments January LDCAC & EROC

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PROPOSED NORTH FORT MYERS MIXED USE OVERLAY LDC AMENDMENTS & STAFF COMMENTS

ARTICLE VIII. NORTH FORT MYERS PLANNING COMMUNITY

DIVISION 1. IN GENERAL

Sec. 33-1533. Conflicting provisions.

If the provisions of this article are inconsistent with provisions found in other adopted codes, ordinances, or regulations of the County, this article will take precedence, except for provisions applicable to properties located within the mixed use overlay, as delineated on Map 1, Page 6 of the Lee Plan and described in Objective 11.2.

Staff Note: Revise to add provision to allow properties located in the mixed use overlay to utilize the alternative property development regulations provided in Chapter 34. Sec. 33-1537. - Definitions.

Mixed-use means a development, in a compact urban form, including residential and one

with two or more different but compatible uses, such as but not limited to: residential, office, industrial and technological, retail, commercial, public, entertainment, or recreation. These uses may be combined within the same building or may be grouped together in cohesive neighboring buildings with limited separation, unified form and strong pedestrian interconnections to create a seamless appearance. This is also known as horizontal mixed-use, whereby the development combines multiple single-use buildings within a single development parcel or site. (See Figure 2.)

Staff Note: Revise to accommodate mixed use development that includes two or more non-residential uses. This is consistent with Chapter 34.

DIVISION 2. NORTH FORT MYERS COMMUNITY WIDE LAND DEVELOPMENT PROVISIONS

Sec. 33-1548. Interconnections and shared access for new development and redevelopment. Commercial and mixed-use development adjacent to one another must provide

interconnections for automobile, bicycle and pedestrian traffic. These regulations apply to new development or redevelopment involving alteration of, or the addition of building square footage, equal to 30 percent or more of existing square footage. Interconnects between parking lots are not intended to satisfy the criteria for site location standards outlined in Policy 6.1.2(5) of the Lee Plan. Staff Note: Delete an outdated Lee Plan reference.

DRAFT NFM Mixed Use Overlay LDC Amendments January LDCAC & EROC

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DIVISION 3. COMMERCIAL CORRIDOR LAND DEVELOPMENT PROVISIONS

Subdivision II. Design Standards for Commercial Corridors

Sec. 33-1571. - Property development regulations. (a) Minimum building setbacks.

(1) Side setback. Except as may be necessary to meet the landscaped buffer requirements

of section 33-1581(b), no minimum building setback from side property lines is required; but, if a setback is provided it must not be less than five feet.

(2) Rear setback. Except as may be necessary to meet the landscaped buffer requirements

of section 33-1581(b), no minimum building setback from the rear property line is required.

(3) Setback from man-made lakes or waterways must be at least 20 feet.

(b) Mixed use overlay. Properties located within the mixed use overlay, as delineated on Map 1, Page 6 of the Lee Plan and described in Objective 11.2, may apply the alternative property development regulations under the "MUO" category in Table 34-845. Staff Note: Update LDC cross-reference and add provision to allow properties located in the mixed use overlay to utilize the alternative property development regulations provided in Chapter 34. Sec. 33-1572. Publicly-accessible open space.

In addition to the meeting the requirements of section 10-415 or section 10-425, if located

in the mixed use overlay, all commercial and mixed-use projects are required to provide publicly-accessible open space that meets the following standards:

(a) – (c) remain unchanged.

Staff Note: Add cross-reference to open space requirements for properties within the mixed use overlay.

Subdivision IV. - [Miscellaneous]

Staff Note: Delete unnecessary Subdivision heading. The regulations under this Subdivision are more appropriately located under the existing Subdivision III, Urban Design Guidelines.

DRAFT NFM Mixed Use Overlay LDC Amendments January LDCAC & EROC

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Sec. 33-1581. Landscaping buffers., pedestrian linkages, and street furniture. Staff Note: Delete unnecessary language. Section 33-1583 is titled “Pedestrian walkways/linkages” and Section 33-1584 is titled “Street furniture and public amenities”.

(a) Properties located within the mixed use overlay, as delineated on Map 1, Page 6 of the

Lee Plan and described in Objective 11.2, must provide the minimum landscape requirements established in section 10-425. The landscape requirements identified in section 10-424 must be provided for specific uses developed within the mixed use overlay. Staff Note: Add provision to allow properties located in the mixed use overlay to utilize the alternative landscape requirements in Chapter 10.

(b) Properties located outside the mixed use overlay must use the The following buffer

tables will be used instead of section 10-416(d)(3)&(4):

Tables remain unchaged. Staff Note: Add language to differentiate what regulations are applicable to properties outside of the Mixed Use Overlay.

Subdivision V. - Incentives Staff Note: Delete unnecessary Subdivision heading. No regulations are provided under this Subdivision.

Subdivision IVVI. Commercial Corridor Use Regulations

Staff Note: Update Subdivision numbering to reflect deletions above.

Subdivision VII. Signs

Staff Note: Update Subdivision numbering to reflect deletions above.

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Subdivision IV: Delete unnecessary Subdivision heading. The regulations under this Subdivision are more appropriately located under the existing Subdivision III, Urban Design Guidelines.

Sec. 33-1581: Delete unnecessary language in Section title; add provision to allow properties located in the mixed use overlay to utilize the alternative landscape requirements in Chapter 10; and, add language to differentiate what regulations are applicable to properties outside of the Mixed Use Overlay.

Subdivision V: Delete unnecessary Subdivision heading. No regulations are provided under this Subdivision.

Subdivision VI: Update Subdivision numbering to reflect deletions above.

Subdivision VII. Update Subdivision numbering to reflect deletions above.