Florida Senate Bill 250 and the Naples Land Development Code – Some Straight Talk
Many of you may have heard about Senate Bill 250, which has been an ongoing topic at City Council meetings since this past spring. There has been a lot of noise surrounding this state legislation and what it means for Naples. Let me give you some facts.
SB 250 was adopted by the Florida legislature in the recent legislative session and subsequently signed by the Governor. The Bill’s primary purpose is to provide assistance to cities and counties impacted by the 2022 hurricanes Ian and Nicole. It applies to any locality that is within 100 miles of the landfall site of these hurricanes, which includes much of the state, including Collier County.
The state assistance aspect of the bill is benign – it offers additional state resources to localities for resilience and recovery purposes.
The implications of Section 14
The controversial part of the bill is Section 14, which prohibits affected localities from “propose{ing} or adopt{ing} more restrictive or burdensome amendments to its comprehensive plan or land development regulations; or propose or adopt more restrictive or burdensome procedures concerning review, approval, or issuance of a site plan, development permit, or development order.” These prohibitions are applied retroactively to September 28, 2022 (Hurricane Ian’s landfall) and extend to October 1, 2024.
A plain reading of this provision is that we can’t propose or adopt any new provisions to our land development code that are more restrictive or burdensome during this period. Further, any actions that City Council may have taken dating back to 9/28/22 are “nullified” by this legislation and are no longer part of our land development code. This would include actions Council took over the last 12 months concerning lot combinations, planned developments, and site plan reviews.
In my view, those supporting this bill in the legislature (and note, it passed with bi-partisan support — unanimously in the Senate and with only four opposition votes in the House) did so in order to give localities and their residents time to recover from the hurricane without the burden of additional regulations that could impact their ability to redevelop or sell their property. Many Naples residents support this approach.
At the same time, this law represents a de facto “preemption” of local home rule, taking away for a defined period of time the ability for City Council to enact changes to our land development code or other procedures that we believe to be in the best interests of the city. Many residents find this preemptive action by the State intrusive and alarming as well.
In the final analysis, however, the law was enacted and we need to follow the law, just as scores of others Florida counties and cities are now doing. Unfortunately, some on City Council continue to resist these requirements and look for ways to evade or work around SB 250.
This was aided by an ill-advised opinion by our City attorney suggesting that there was a different way to interpret SB 250, and have it apply not as intended but only to “hurricane impact properties”. I don’t agree with this interpretation nor do others in the legal and planning fields with whom I have consulted. If the City were to apply that interpretation, it would only result in litigation and the real risk of truly significant costs to our taxpayers.
Recent Council actions on SB 250
At our August 18 City Council meeting, I made a motion that we follow the requirements of SB 250 as described above. It failed 4-3, with Councilors Blankenship and Perry joining me in the minority. Subsequently, a motion was passed 4-3 (opposed by myself, Blankenship and Perry) to: 1) ask the legislature for an explanation of the purpose of SB 250, 2) sue the state if we did not agree with their explanation, and 3) in the interim, not enforce regulations and ordinances covered by SB 250.
I opposed this motion because I knew that the legislature could not and would not provide us with a separate explanation of an action that already speaks for itself and that suing the state was politically not in the best interests of our community and legally questionable in the context of this issue. Further, I knew that SB 250 required us to nullify (remove) any applicable ordinances from our code, not just choose to not enforce them.
Yet the efforts to evade SB 250 requirements continue. On September 20, for example, Council approved by a 5-2 vote (myself and Councilor Perry voting in the negative) action prohibiting administrative approval of underground parking garages and requiring any such action to come before Council. This City has previously granted administrative approvals for underground garages. Thus, this recent action by Council appears to me to be a clear violation of SB 250 that again would subject our residents to the risk of expensive litigation that we would likely lose.
I think we all believe in the primacy of home rule and chafe when the state legislature prohibits or preempts local authority to enact what we would consider sensible laws and regulations. Examples of where that has happened in the recent past in Florida include state preemption of local government’s ability to regulate short-term rentals or the location of new cell towers.
But SB 250 is the law whether we like it or not. It contains certain short-term prohibitions that we must accept or risk continued community divisiveness and law suits that could cost you, our taxpayers, millions of dollars.
And we need to remember that its impact is short-term, as the Section 14 provisions sunset over the next 12-18 months. At that time, we can take a fresh look at what if any changes to our land development code are needed. And we should do so with the benefit of advice and input from our professional staff, the development community, and residents.