The Pine Island Plan: What all Islanders need to know
By Phil Buchanan, February 18, 2016
Florida in the 1980’s was much like now—with corruption and favoritism the order of the day. Unlike now, the Florida legislature sometimes did something about it, and one of the better things they did was a series of laws known as the Growth Management Act. The Act required that the 575 or so counties and cities in Florida each have a land plan by which they addressed in a logical and consistent way land use planning for the next several decades (generally 30 years). The plans had to inter alia establish land use categories, density of residential areas, and address transportation and other needs to serve the various communities.
Lee County (like many other counties) said that was impossible, but ordered their staffs to do what they could. Pine Islanders, on the other hand, saw the new law as an opportunity to save their island from runaway development. Doctors (they both have PhD’s) Gene and Ellie Boyd led Pine Islanders in writing and getting enacted the first Pine Island Plan. Developers and their supporters led a strong and often nasty and sometimes violent opposition to their efforts, but the Boyd’s (supported by thousands of Pine Islanders) eventually prevailed. Although the Boyd’s had to leave the Island to avoid death threats, the 810/910 rules became law. The 810 rule prohibited rezoning that would increase traffic through Matlacha when the traffic count reached 810 annual average peak hour two-way trips. The 910 rule prohibited new residential development orders when that count reached 910. The new rules also established Pine Island Center as the island commercial center, prohibited artificial channels in natural waterways, established a building height restriction, prohibited bonus densities, and allowed the storage of commercial fishing equipment at private residences. Those rules were adopted in 1989. The Boyd’s knew that the traffic count milestones would not be met for perhaps 15 years, but that was the best they could get the county commissioners to approve.
In the year 2000, it became clear that the milestones were soon going to be met. It also became absolutely clear that the county commissioners would repeal the 810/910 rules unless they were made less stringent. The Pine Island Community Land Use Planning Committee was reconvened, and land planning specialist Bill Spikowski was hired to lead our efforts (using funds in part derived from the sale of the Greater Pine Island Civic Association Building to the Elks Lodge). The efforts were again controversial, and I and others were subjected to threats and harassment. The large landowners formed the Agricultural and Large Land Landowners Association, hired numerous attorneys, and later formed the Bokeelia Civic Association to oppose the land plan. Thousands of Pine Islanders attended dozens of meetings both on the island (one meeting had 350 attendees) and at the county courthouse. Surveys showed that some 95% of Pine Islanders supported the Plan.
In 2003, the Planning Committee recommended, and the county commissioners approved lessening the stringent 810/910 rules. Exceptions were written for the 810 rule, and the 910 rule was changed to allow densities in a new land use category called Coastal Rural that varied on a sliding scale by how much of the property was preserved in native habitat. In 2005, another amendment allowed preserved farmland to also be used on a sliding scale to provide additional residential density.
Meanwhile both the 810 and 910 milestones were met and ignored by the county staff. The County Attorney advised that the county commissioners were not required to follow their own laws (just advisory he said, but state lawsclearly differ with that). The County Transportation Department quit publishing Pine Island Road traffic statistics to avoid the issue. Finally in 2006, a five o’clock showdown hearing addressed the issue with only the County Director of Community Development (later fired) on our side, and the County Attorney leading the opposition. Hundreds of Pine Islanders were still in attendance at 11 p.m. when the commissioners finally declared the 810/910 rules to be in effect.
Some background is required to understand the subsequent events. The Bert Harris Act is a statute in Florida that allows landowners to collect damages if government actions unfairly restrict what they can do with their property. It’s a sensible law, but can of course be abused if applied incorrectly. The Act requires an estimate to accompany filing of claims, so the Lee County Attorney’s Office, still a strong opponent of the Pine Island Plan, spent $100,000 of taxpayer’s money to get an estimate of $65 million in Pine Island Plan damages to large landowners. The large landowners then filed Bert Harris claims for $65 million in damages. Of course, the Bert Harris Act was enacted in 1995, was not retroactive, and thus did not apply to the 810/910 rules enacted in 1989 (something they all ignored).
The Bert Harris claims lay dormant for many years, but were resurrected after the elections of 2012, when the landowners felt (quite correctly) that the new county commissioners would be more favorable to them. The claims now totaled 51 and variously suggested hundreds of millions in damages. One claim went to trial and the claimant won (case later settled for a few hundred thousand dollars), which caused the County Attorney in February 2015 to push the panic button. With County Commissioner approval (5 to 0 vote), he hired a Tampa law firm and other consultants to rewrite the Pine Island Plan, and then settled the then outstanding lawsuits for some $4.5 million (not hundreds of millions). Other claims (not lawsuits) are pending, but may be withdrawn after adoption of this rewrite. This was to be the first time the County Government rewrites a community land plan and just imposes that plan on the community.
The County Attorney rewrite effort caused Pine Islanders to once again convene the Pine Island Land Use Planning Committee, which met on numerous occasions in 2015 (one meeting had 565 attendees, with numerous people leaving because they could not even get into the parking lot at the Lutheran Church). I and Roger Wood (also President of the Greater Pine Island Civic Association) served as Co-Chairs, while Bill Spikowski and Commissioner John Manning served as Honorary Co-Chairs. The Committee created a website managed by Tim Heitz and a Facebook Page managed by Andrea Ori and Renee Pollack, as well as a few dozen special panels (coordinated by Carol Crane with research directed by Claudia Bringe) to study various aspects of the rewrite. One of the panels was a committee headed by Popo Perez to create a Pine Island flag—a beautiful creation by Mel Meo easily got the most votes and is now available for purchase at Mel’s studio.
Unfortunately, the County Attorney’s Office largely disregarded input from the Planning Committee. I and others nonetheless did our best to work with the County Attorney and his consultants to lessen the impact on Pine Island as much as possible—we had only mixed success. The development community of course did the same thing, and the Vice-President of King Ranch (second-largest land owner on Pine Island) later testified that “you gave us everything we asked for.” The rewrite is obviously not good, but it could be much worse.
As of this writing (2/12/16), the Plan rewrite has been transmitted to Tallahassee for review as required by law. Previously, we had a great deal of success getting the state Department of Community Affairs to assist us in making plans more amenable during that review; however, Governor Scott immediately upon assuming office abolished that agency. I don’t expect any changes in Tally or when the rewritten Plan comes back for final commissioner review in March or April.
All land plans require implementing regulations and in Lee County they are called the Land Development Code. The LDC changes will be approved by the commissioners during hearings in February and March--again, don’t expect changes.
Here follows are summaries of the rewrite.
Density of residential Developments
The density changes arethe most damaging of the changes provided by the rewrite. The 910 rule and its sliding scales are no more. The one house per ten acres rule was changed to one house per 2.7 acres, an enormous increase in future residential developments. Even that figure can be increased to one house per acre if 70% of the overall development is maintained in native habitat or farmland (which is rather difficult to do). From one house per ten acres to a potential one house per acre is a ridiculous increase for a rural community—a ten-fold increase (potentially thousands of houses) that is in no justified.(Policy 1.4.7) Details are provided in LDC 33-1001 et seq, and the coastal rural regulations are set forth in LDC 33-1051 et seq.
Pine Island does not have the infrastructure to support the population we have now (traffic through Matlacha in February recentlybacked up eight miles). No provisions were provided in this rewrite to address the infrastructure to support the additional density—a direct violation of the intent of the Growth Management Act. Unfortunately, as I previously noted, the agency to which we are supposed to appeal has been abolished by Governor Scott.
The 70% “Adjusted Maximum Density” (allowing one house per acre) is not allowed in the Coastal High Hazard Area, which is the area below the Cat 1 storm surge line. (Policy 14.3.3)
50% open space is required for new developments, but the developer can opt out of that requirement by imposing a 25% maximum building lot footprint (a meaningless provision vigorously protested by the Planning Committee). Setbacks are generally 50 feet from the street and 25 feet from the side lot line. (LDC Sec 33-1054)
Vegetative buffers of 25 feet (or in some instances 30 feet) are required along the roads in all new developments, and a 50 foot building setback is required along project boundaries. (LDC 33-1054)
Property owners of different (including non-adjoining) properties on Pine Island may transfer from coastal rural to urban the densities (2.7 acres per dwelling) to increase the size of the projects. (Policy 14.3.4)
The County Attorney’s Office takes the position that recent Florida Statutes render the use of traffic concurrency to regulate growth as “no longer legally feasible” (which is I think a fair reading of Florida law). For that reason, the 810 rule, the 910 rule, or any other rule limiting development on Pine Island because of traffic through Matlacha is no longer permissible. Therefore, both the 810 and 910 rules have been extinguished and not replaced with anything.
Densities for residential projects throughout Lee County are also increased by this change in regulations. The Glossary definition of density has been changed to allow for conventional rounding in calculating the number of units for a project. In the past, a developer with a calculated project density of 9.5 units could build only 9 houses (you can’t build one-half a house), but now the developer can build 10 houses.
Commercial
Objective 14.4 continues the policies of placing most commercial and industrial uses at Pine Island Center and restricting commercial uses in the villages to “marinas, fish houses, and minor commercial uses to serve the day to day needs of local residences and island visitors.”
Policy 14.4.3 continues the policy of requiring “Old Florida” or cracker building designs for commercial properties on Pine Island, including “off-street parking to the side and rear of buildings to preserve viewsheds along public highways; require large windows and forbid most blank walls; and encourage metal roofs and other features of traditional “Old Florida” styles. The new rules however, removed the prohibition on “standardized franchised buildings” and allow deviations if approved by variance. Both changes significantly weaken the policy, but our protests were ignored. (LDC Sec 33-1083)
Policy 14.4.5 continues to limit commercial development in the coastal rural area to uses that “are limited to those that reflect the Coastal Rural character and unique culture of Greater Pine Island, such as animal clinics, bait and tackle shops, ecotourism, farm and feed supply stores, food stores, lawn and garden supply stores, restaurants (excluding fast food), roadside/produce stands, specialty retail, and plant nurseries.” Buildings are limited to 5,000 sq.ft., with some exceptions.
Hurricane Evacuation
The rewrite establishes a “maximum hurricane evacuation clearance time of 18 hours for greater Pine Island” (Policy 14.2.2 and Objective 14.8). It goes on to say that when that clearance time reaches 16 hours, mitigation regulations will be written “to address transportation deficiencies, sheltering needs, and other public safety measures” (to be implemented at the 18 hour milestone). Lee County claims that Greater Pine Island can now be excavated in 12 hours (which means getting the last evacuee past the Chamber of Commerce Building). Since it took us over 100 years to reach what they claim is a 12 hour evacuation time, it appears nothing will be done about evacuation for many decades to come under these provisions.
Other provisions however address the need for shelters, roads, and bridges (Goal 109) throughout Lee County, and Policy 109.1.5 says comprehensive plan amendments proposing increased density on Pine Island must “Maintain a 12 hour evacuation time.”(Note this provision does not apply to development orders—just future changes to the Pine Island Plan. Of course, laws that claim to prohibit future laws are meaningless verbiage.)
A New Bridge to Pine Island
Policy 109.1.4 says “For the purposes of accommodating hurricane evacuation, a new bridge to Pine Island is strongly discouraged due to the costs, design constraints, and potential impacts to growth patters with Greater Pine Island.” My comments: This is a great provision. Some estimates have placed the cost of a new bridge at over $400 million, and the necessary toll to bond that expense at some $30 to $40 each trip. The expensive tolls would drive the middle class from Pine Island and possibly eventually leave it as a resort for the wealthy. The Florida Constitution also has provisions protecting aquatic preserves such as Matlacha Pass that would make permitting the bridge extremely difficult. The Bokeelia Civic Association and large landowners strongly objected to this provision.
Walls and Gates
New residential project fences and walls are not permitted, nor are entrance gates serving more than one block (five or less houses). (LDC Sec 33-1085 and 1086)
Maximum Height Limitations
“No building or structure may be erected or altered so that the peak of the roof exceeds 38 feet above the average grade of the lot in question or 45 feet above mean sea level, whichever is lower.” (LDC Sec 33-1087, language unchanged)
Storage of Fishing Equipment
LDC Sec 33-1088 (language unchanged) continues to authorize Pine Island fisherfolk to store nets, crab traps, and other fishing gear at their residence.
Natural Resources
Policy 14.1.3 requires Lee County to “explore the possibility of estimating the aerial extent and maturity of mangroves.” This provision goes back to 1989, but has never been acted upon.
Policy 14.1.8 says “Lee County will support practices that reduce pesticides, fertilizers, animal waste, and other pollutants entering Greater Pine Island’s estuarine and wetland resources.”
Policy 14.1.9 says “Lee County will support the use of central sanitary sewer service to reduce potential contamination to groundwater or the surrounding estuarine systems from on-site septic systems.”
None of the above provisions actually require anybody to do anything (thus, no one will).
LDC Sec 33-1031 continues the policy (unique to Pine Island) of requiring a 50 foot buffer between new agricultural clearing and the mangroves.
Transfer of Development Rights
The rewrite introduces a new, elaborate and somewhat complicated Transfer of Development Rights (TDR) program, whereby property owners on Pine Island can sell development rights on their property to developers in approved receiving areas. Receiving areas include Pine Island Center but mainly consist of specified high development areas on mainland unincorporated Lee County east, north, and south of Fort Myers. The Pine Island property owner sells the development rights (which can be used to increase density for residential projects or square feet for commercial projects) and continues to farm the property. The buyer makes a Purchase of Development Rights (PDR) of Transferable Development Units (TDU) under a clearinghouse program operated by Lee County. Prices are determined by the market--not the county. (Objective 14.6 and LDC Sec 2-141 through 153)
It’s an ambitious program, the success of which depends on development units having a market worth—which will not be the case if county commissioners continue to give away development rights (as they did in this rewrite). If the program succeeds, it will be a boom for Pine Island property owners and a very important mechanism for preserving Pine Island farms and controlling development. I hope it works, but doubt that it will. (Objective 14.6)