City Council pulls back on harsher land use and development rules in Naples. Here's why.

Naples will no longer enforce the more restrictive land use and development rules it has adopted since Hurricane Ian.

At least for now.

The decision by City Council didn't come easy. It followed hours of discussion and debate last week about how it should deal with Senate Bill 250, signed by the governor over its summer recess.

The controversial bill included a retroactive prohibition on adopting harsher regulations. It essentially rendered them "null and void," applying to areas within 100 miles of where hurricanes Ian and Nicole made landfall – and reaching back to Sept. 28, the day Ian hit.

The ban won't expire until October 2024, impacting all of Southwest Florida, and other counties on the east and west coasts.

In a narrow decision, City Council voted 4-3 to suspend enforcement of four ordinances – and one resolution – but it won't quietly acquiesce.

With the vote, Council demanded more information on the impetus, intent and meaning of the bill from state legislators, and threatened a lawsuit over it, if it didn't get satisfactory answers, seeing it as an egregious overreach by the state.

Vice Mayor Mike McCabe made the motion after two others failed, with Council struggling to figure out what to do. He said the state Legislature needs to answer for its continual efforts to "steal" away home rule powers.

He described the new law as an "inordinate burden," emphasizing the trouble it's caused, due to its ambiguity in his and Council's eyes.

Councilman Terry Hutchison seconded McCabe's motion. He sought more information from a city attorney about a potential lawsuit, and asked how it would work.

Ralf Brookes, with the Vose Law firm, which represents the city, said such a suit is possible.

He shared that he represented Yankeetown in Leon County in a civil lawsuit over the state's passage of the Community Planning Act in 2011, which included sweeping growth management changes, and the dueling sides reached a favorable compromise. A few other local governments piled on to the constitutional challenge, getting exemptions of their own, he added.

If Naples files a lawsuit over Senate Bill 250, Brookes said other cities, counties and towns affected by the legislation may want to join the legal fight, or at least file court briefs in support.

Mayor Teresa Heitmann and Councilwoman Beth Petrunoff supported McCabe's motion as a way to move forward after an exhaustive discussion. Councilors Paul Perry, Ted Blankenship and Ray Christman voted against it, seeing it as the wrong way to go.

More like this:State legislation in limbo causes more uncertainty over land use changes in Naples

And:DeSantis signs bill to improve hurricane response, but it impacts home rule

What will change?

For now, the city will not enforce:

• More regulations for single-family lot combinations and splits
• More policies for larger planned developments, including greater open space and setback requirements for new construction
• More requirements in the site plan review and approval process for larger projects
• More rules on lot coverage for single-family homes in multifamily districts
• More fees for parking downtown

Council did not rescind the ordinances or resolution that implemented the changes, leaving them on the books as written, while seeking more answers. It hopes to reenact them, sooner rather than later.

Senate Bill 250, dubbed "Natural Emergencies," was sponsored by Sen. Jonathan Martin, R-Fort Myers. It included many beneficial measures designed to help communities recover from Ian – and become more resilient against future storms Council has acknowledged.

Some on Council suggested the bill's prohibition on more restrictive land use and development rules, however, might have specifically been targeted at Naples – and that it had nothing to do with a natural emergency, but rather with money and greed, driven by developers and property owners who are upset with its actions.

The regulatory changes City Council has made since Ian have been years in the making. The stated goal has been to protect the city's small-town charm, in keeping with the city's vision.

A controversial opinion

Becky Vose, with the Vose Law Firm, offered Council two very different interpretations of the contentious bill, when asked for an opinion about how it impacts the city's land use decisions. Based on her research, she said the prohibition could be read as applying to all properties in Naples, or only to storm-damaged ones.

In a memo to Council dated July 6, Vose suggested it follow the more liberal interpretation, so that its new rules adopted since Ian could still be applied to and remain in effect for undamaged property. Since the local rules took effect before the passage of Senate Bill 250, she said they should be "considered the will of the people of the City of Naples," and "upheld if possible."

During Council discussion, Vose didn't advocate for one interpretation or the other, adding that she could effectively argue for either in court, and would leave it up to Council to decide.

"Honestly, I believe there are two sides to this one," she said.

Not everyone agreed, including some council members who questioned the validity of her opinion based on their own reading of the bill.

Ahead of the meeting – and during the discussion – several attorneys, representing local developers and property owners, argued the bill could only be interpreted one way, applying to all property in Naples, due to its location relative to Ian. They threatened to sue the city, if it continued enforcement of applicable rules in any way.

Paul Beard, an attorney with Fisher Broyles, representing the Naples Residents Defense Fund, told Council it's obvious by the bill's language and how it was crafted that the prohibition wasn't targeted just at storm-damaged properties. He said viewing it any other way would require Council or the court to add words to it that "just aren't there," which is unreasonable.

Fisher Broyles' clients include lot owners, single-family homeowners and business owners.

If Council had decided to follow the more liberal interpretation, the city would have been forced to come up with its own definition of damaged property, and to require proof of damage, which could have been seen as more burdensome, in violation of Senate Bill 250.

Former Naples City councilman Gary Price once again criticized the current leadership for what he sees as its endless attack on private property rights, when residents and business owners are still fighting to recover from Ian. He said Council was getting "bad legal advice," and argued the prohibition clearly was meant to apply to all property, with no ambiguity, as a protective move.

Worse than getting legal advice is taking it, Price reasoned.

"I would hope that you would be ahead of the game when it comes to protecting our private property rights, not behind," he told Council. "Because now you are behind."

Defending city decisions

Several spoke in favor of the city doing whatever it could to preserve the new rules, including ones that allow residents to have more input on major commercial developments, even if it spurs lawsuits, or requires a legal battle with the state.

Donna Dabney, an officer and board member for the Old Naples Association, said the site plan review process for big developments was far too lenient before Council made changes to it earlier this year. She urged Council to stick to the new rules that required two public hearings, with many petitions in the hopper, and scheduled to come before it.

"I think in this particular case, you really need to think about the city residents," she said. "I mean, that is who you are here to represent."

Following Council's decision, the Old Naples Association sent out an email to its members, encouraging them to support the city's efforts to "push back on this overreach" by the state Legislature, which has the potential to "fuel over development and strip our citizens of their right to self-govern."

"The city ordinances in question were properly vetted and voted upon well before Hurricane Ian occurred, but were finalized afterward," the association wrote. "Those ordinances were in no way adopted because of the hurricane, nor were they ... intended to restrict property rights ... Instead, they were adopted to enhance the property rights of citizens of Naples."

In other action last week, Council adopted its priorities for the next legislative session, which included defending home rule to protect its "ability to preserve Naples’ character, culture, and charm at the local level," near the top of its action list.

Council discussed pursuing a "glitch" bill that could add clarity to Senate Bill 250, but they were warned by a city attorney that reopening it could make matters worse. Attorney Brookes said if readdressed it could get extended by a year or even longer by the state Legislature.

Senate Bill 250 did not face widespread opposition, with many city, town and county managers around the state seeing its pros far outweighing its cons. The Florida League of Cities, the voice for local government in the state, didn't take a stand on it.