Naples City Council fumes over extension of state ban restricting its land use powers

In Naples, city leaders are fuming over the extension of a state ban that has tied its hands on adopting more restrictive or harsher land use and development rules since Hurricane Ian.

Council has serious concerns about the prohibition's impact on the city's resiliency efforts – or ability to respond to and recover from future disasters ‒ including long-planned stormwater improvements.

During a special session last week, state lawmakers unanimously approved a hurricane relief bill that included a two-year extension of the ban in 10 counties, impacting all of Southwest Florida. On Monday, Gov. Ron DeSantis signed the wide-ranging legislation, which took effect immediately.

Naples city attorney Jim Stokes said the extension appeared to be "squeezed into" what was otherwise an appropriations bill, with no analysis about its impacts or implications in the affected areas of the state.

"It's all about money, except this one thing," he told city council at a workshop this week.

The legislation extended a prohibition found in Senate Bill 250, which the governor signed over the summer.

Senate Bill 250 reached back to the day Ian hit, rendering any harsher regulations adopted by local governments after the storm "null and void" in areas within 100 miles of where hurricanes Ian and Nicole made landfall last year.

With the extension, the ban won't expire until Oct. 1, 2026, in Charlotte, Collier, Desoto, Glades, Hardee, Hendry, Highlands, Lee, Manatee and Sarasota.

Originally, the legislation applied to more than 30 counties, impacted by hurricanes Ian and Nicole.

The prohibition has already led Naples City Council to suspend enforcement of four ordinances and one resolution, dealing with everything from lot coverage to site plan approval, and to postpone other land use discussions and decisions that might be perceived or challenged as unlawful.

At Monday's workshop, Councilman Ray Christman criticized the Legislature's decision to extend the ban "in the darkness of night," without warning, and without seeking input or asking for any feedback from the affected cities and counties in advance.

"To me, it's just egregious overreach," he said. "It's politics. I don't think there's anything we could do about it."

Others on Council agreed.

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

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

In effect, the state has imposed a five-year moratorium on the city's efforts to improve resiliency, as it could take more than six months to move forward with and enact necessary code changes that are now on hold, Christman said.

"If we wanted to strengthen our building code because of resilience issues, we couldn't. If we wanted to update our comprehensive plan, like we're supposed to do, and put in anything new and different, we couldn't do it. You go right down the line in trying to provide more protection for health, safety and welfare, and stormwater management, we can't do it," he said.

He asked city staff to come back with a legal interpretation and analysis of the potential impacts of the extension, to give Council and residents a better idea of the situation the city is facing.

"This could really over the next several years create some real problems for our residents," Christman said.

Mayor Teresa Heitmann agreed.

"I think we should be writing our governor and saying, 'Hello, we need your help," she said.

Everyone on Council supported the mayor's idea. City manager Jay Boodheshwar said the city should act to defend its home rule powers and agreed to write the letter.

"There is always an opportunity for another discussion at the state Legislature level," he said. "I think it's worthy."

The letter is still being drafted, but it's expected to go out soon. In part, it will point out what the city believes are unintended consequences of the ban that may not have been fully thought out by state lawmakers, such as the potential to hold up critical stormwater improvements.

At Wednesday's council meeting, questions arose over land use changes that are required for the city to install a back-up generator for a new pump station that's planned at the end of Third Avenue North, part of a new $35 million management system that will eliminate most of the stormwater outfalls — or large pipes — lining Naples beaches. The system is not only designed to reduce street flooding, but water pollution and beach erosion.

The generator would go on city-owned land, off Gulf Shore Boulevard North, but council must first approve a conditional use, a rezoning, and a small-scale amendment to the comprehensive plan.

The 0.35-acre site is now zoned for single-family residential uses, and it must be reclassified for public uses.

With the reclassification of the property, Council Terry Hutchison questioned whether the city could run into trouble with Senate Bill 250 since the action would remove the current residential uses, which could be viewed as less restrictive.

If anyone were to challenge the use changes, Stokes said he wouldn't be too concerned.

"I think we would prevail there," he said. "Because I'm not thinking Senate Bill 250 was meant for this type of an application."

He argued the city is broadening the land uses for the protection of residents.

After a detailed presentation by city staff, council unanimously approved the rezoning and plan amendment for the pump station on first reading.

"I certainly, for one, would not support holding up one of the most important public projects that we're undertaking here in this city and that we have been working on for so many years, out of a concern, or fear of risk that somebody may challenge this action," Christman said.

He added: "I think it should not stand in the way of us proceeding."

While it should be obvious that the city is trying to "do the right thing," Hutchison pointed out that some residents still oppose parts of the stormwater project, which could result in a challenge under Senate Bill 250. He asked about the impact of such a challenge.

In reply, Stokes said it could hold up the project, but he would argue that doing so would be a danger to public safety and he would ask the court to resolve it quickly.

"We would have to impress upon the judge that this is something that can't linger for a year or two," he said. "This is something that needs to be dealt with in a matter of months."

The second readings and public hearings on the two petitions are scheduled for Dec. 6, when final decisions will be made by council.

At that same meeting, council will also vote on a resolution to approve the required conditional use for the generator.

The site chosen for the generator sits between the western side of Alligator Lake and Gulf Shore Boulevard. It has been used as a passive public park since the 1960s.