hurricane-92968_1280On October 3, 2016, in response to a five-day forecast from the National Hurricane Center for Hurricane Matthew, a major storm which is expected to impact large portions of the east coast, the Governor issued Executive Order Number 16-230 declaring a 60 day State of Emergency throughout every Florida county.

Legal Authority for State of Emergency Permit Extensions

As I have explained in recent blog posts, Section 252.363, Florida Statutes, provides that certain qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months. In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

Development Permits Eligible for State of Emergency Permit Extensions

Continue Reading Development Approvals in All Florida Counties Eligible for Extensions under State of Emergency Declared for Hurricane Matthew

For the possible record number of attendees at July’s Real Estate Investment Society (“REIS”) luncheon, this won’t be news. For those folks who may have missed it, Assistant County Attorney Michael Jacob and Lee County Planning Manager Mikki Rozdolski walked us through the newly created Pine Island Transfer of Development Rights Program that is not only winning awards but has the potential to offer a workable density transfer program for Lee County developers and landowners.

Among the program’s highlights and innovative concepts is the ability to strip density units from qualifying land in Greater Pine Island and use “off-island” to qualifying receiving lands at a 1:2 ratio. For those looking to increase commercial square footage, the program also allows for the conversion of one (1) density unit to 10,000 square feet of commercial retail and office space. Attorney Jacob noted there is no limit to this conversion (i.e. if your project needs an additional 30,000 square feet, all you need is three (3) density units).

Another novel aspect of this program is that the land from which you take the units does not necessarily lose all economically viable use merely by participation in the program. An example Planning Manager Rozdolski provided was that you could strip off the development units from eligible property, but use that same property for limited agricultural uses, like growing mangoes and then selling those mangoes from a farm stand on the property. Clearly this incentivizes participation in the program since the landowner benefits from selling the units but continue to receive economic benefit from the property as well as general use and enjoyment of the property. This is in stark contrast to most other attempts at a TDR program where landowners remove development rights and essentially lose any benefit of owning the property.

The good news for anyone who wasn’t with us at REIS (as full disclosure, as President this year I am thrilled at the great attendance we’ve enjoyed this year and appreciate everyone coming!), the county has done a phenomenal job at getting the word out about this program and making information as accessible as possible. Head on over here to get additional information and dig into the myriad of innovative and inventive aspects this program has to offer. I think we are all excited to see this program in action!

From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with Molly Maggiano and Austin Turner (Henderson Franklin)
From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with Molly Maggiano and Austin Turner (Henderson Franklin)

This year’s two day Urban Land Institute (ULI) Annual Florida Summit was held in Miami at the Turnberry Isle Resort and was comprised of more than 650 attendees. The theme of this year’s event was Creative Disruption: “The Future Ain’t What it Used to Be.”

The mission of ULI is to provide leadership in the responsible use of land and in creating and sustaining thriving communities worldwide. ULI is an independent global nonprofit supported by the top real estate professionals from throughout the state including developers, attorneys, engineers, architects, and land use planners, from both the private and public sector.

The “Creative Class”

Continue Reading “The Future Ain’t What it Used to Be”- 2016 ULI Florida Summit

The term “due diligence” gets thrown around a lot in the development world, but often with little regard for what the term entails. As with all things relating to property, this post is in no way intended to encompass all considerations in due diligence as properties are unique and present specific needs of review. However, the following list provides a brief glimpse into items to review when you are considering the purchase of real property for development in Southwest Florida: Continue Reading 8 Practical Tips for Land Use Due Diligence in Southwest Florida

For any development permit holders interested in taking advantage of the two-year extension offered under HB 7023 (codified as Laws of Florida ch. 2014-218), there are some important rules to remember as the notification deadline of December 31, 2014 quickly approaches:

  • The permit you are seeking to extend must expire between January 1, 2014 and January 1, 2016;
  • The extension applies to approvals such as local development permits including development orders, building permits, DEP and environmental resource water management district permits;
  • The extension does not apply to approvals such as Army Corps of Engineers permits or consumptive use water management district permits;
  • If you have previously extended this permit under two (2) of the prior legislative extensions, for a total extension of four (4) years, you cannot utilize this extension provision; and
  • You must provide written notification to the agency who issued the permit by December 31, 2014 (some jurisdictions require a fee while others do not).

Many jurisdictions have information on this extension noted on their websites, or you may check with your consultant or attorney to determine if your permit is eligible for this extension.

During the past 2-3 years, Lee County has been engaging in a systematic and comprehensive streamlining of its zoning, permitting and development review processes.  In a report released recently by the County’s Department of Community Development (DCD), the results of this streamlining effort are identified in detail.

Working independently and in conjunction with the Business Issues Task Force of the County’s Horizon Council, DCD has developed and implemented improvements in customer service and technology, amendments to the County’s Land Development Code, and is in the process of proposing changes to its comprehensive plan that facilitate the processing of permitting applications.  Some of the highlights include:

Continue Reading Lee County Continues Streamlining Its Permitting Processes

Lee County has taken several steps over the last few weeks to streamline the development permitting process and improve the regulatory “climate” for new businesses and development.

Land Development Code Amendments

 On February 12, the Lee County Commission approved a series of amendments to the Land Development Code (LDC) that were recommended by the Horizon Council, the County’s economic development and business advisory board. The changes include streamlining the “sufficiency review” process for projects undergoing rezoning, providing greater flexibility to the zoning director to administratively approve changes to approved projects that formerly required a public hearing for approval, and eliminating the 5-year lifespan for planned development master plans, making these plans valid in perpetuity. The amendments were approved unanimously by the County Commission, and received support from Lee County staff and the Conservancy of Southwest Florida.

Impact Fees

 At its Management & Planning meeting on March 4, the County Commission continued its recent discussions on suspending or adjusting impact fees charged on new development. As previously reported in this blog, the Commission initiated discussions earlier this year with consideration of a 2-year suspension of all impact fees in an effort to spur development and economic growth. During public input at a workshop and public hearing, issues arose regarding the effect of such a suspension on municipalities, the school district, the fire districts and the holders of impact fee “credits” that had been issued by the County for previous improvements and land donations. In light of these concerns, the Commission reviewed its options on March 4, and a majority of commissioners appeared to reach some consensus that a significant reduction of current fees, perhaps by as much as 80%, would ameliorate some of the concerns of a complete suspension and still have the desired effect on development. Fire and EMS impact fees would be exempt from this reduction. The Commissioners requested additional information prior to the next, and possibly final, public hearing on this matter scheduled for Tuesday, March 12 at 9:30 a.m. in Commission chambers.

Plan Amendment Cycles

 On March 5, the County Commission approved a change to its administrative code to remove the “once per year” cycle for amendments to the Lee County Comprehensive Plan. Plan amendment applications will now be reviewed and processed by Lee County throughout the year as they are submitted. Previously, plan amendment applications were processed only once per calendar year beginning on September 30, potentially causing delay for those projects that required a plan amendment and missed the September 30 filing deadline. This change follows statutory revisions enacted by the Florida Legislature in recent years to loosen the plan amendment process.

As always, we will continue to update you as developments in Lee County occur.

 

 

At the January 22, 2013 meeting, and after much public input and debate, the Lee Board of County Commissioners directed staff to draft an ordinance for its review at its February 12, 2013 meeting to initiate a one-year suspension on impact fees with the possibility to renew for another year (for a total of two years).

Fire and EMS impact fees will be exempt from this suspension. The Local Planning Agency will hear the impact fee suspension ordinance at its January 28th meeting. Commissioners also directed staff to establish criteria by which they can evaluate the effectiveness of the suspension after the initial one year term to determine whether to continue the suspension at that time or cease it. The issue of how to treat impact fee credits is also being examined by the County Attorney’s office. Those on all sides of this issue should be sure to continue monitoring these discussions.

 

developer hard hat.jpgThe News-Press recently reported that the City of Cape Coral and Lee County are proposing changes to their land use and development regulations in order to be more flexible in how property is developed and redeveloped.

In the City of Cape Coral, new land use and development regulations concerning South Cape Coral were unanimously passed by the City’s planning and zoning committee in June. The new regulations are part of the 2030 Vision Plan and will remove obstacles, such as committee hearings and unpredictable requirements, to developers obtaining approval of their projects in hopes of saving months from the development and permitting timeline.

John Jacobsen, Executive Director of the Cape Coral Community Redevelopment Agency, stated there have been times when owners/developers have spent hundreds of thousands to millions of dollars on design and related fees, which could prove worthless if a committee rejects a developer at the last stage in the review process. The new regulations should eliminate unpredictable requirements and therefore, save developers time and money.

The Cape Coral City Council held a public hearing on the new regulations on August 20, 2012. A final public hearing is scheduled for September 10, 2012, when the Council will vote on the new regulations.

In Lee County, the Lee County Department of Community Development has been working on revisions to parking requirements for new developments in order to provide more flexibility to developers. The News-Press reported that Lisa Sands, advisor for Fort Myers-based VIP Realty-Commercial, stated “I’m pleased with the county working with the commercial real estate community and recognizing the need to change with the times.” The proposed changes will not only save developers money and provide them with more flexibility, but will also benefit the environment by decreasing the amount of impervious pavement required and therefore allow more water to seep into the ground.

A public hearing to approve the changes will be held on September 11 by the Lee County Board of Commissioners.

In our representation of developers and owners with development applications and due diligence matters, we have encountered situations where parking and development regulations have prevented the developer from pursuing the desired use of the property. I am hopeful the changes will facilitate more development in Cape Coral and Lee County, as development is needed for this area to continue to recover from the real estate downturn.

Our firm is available to assist property owners and developers with development and  due diligence matters, including development applications and permitting approvals.

open till late.jpgA recent decision from the Florida 4th District Court of Appeal illustrates some special land use concerns that come into play when the affected party holds a leasehold interest rather than fee simple ownership.

Changing Regulations Can Affect Leaseholders

In Village of N. Palm Bch. v. S&H Foster’s, Inc., 80 So. 3d. 433 (Fla. 4th DCA 2012), the plaintiff, as a leaseholder, operated an “after hours bar” in Palm Beach County which was permitted to serve alcohol for consumption on premises until 5:00 a.m. The owner of the property filed a petition to voluntarily annex the property into the Village of North Palm Beach. The statutory procedure for annexation required only the consent of the landowner and not the leaseholder. An existing Village ordinance prohibited the sale of alcoholic beverages for consumption on premises between 2:00 a.m. and 7:00 a.m., effectively depriving Foster’s of three hours of business it had enjoyed for many years while in the unincorporated county. After approval of the annexation, the leaseholder sought relief in court prohibiting application of the Village’s ordinance and allowing the bar to remain open until 5:00 a.m.

The Ruling

The trial court ruled in favor of the bar and found that the bar was “grandfathered” to operate under the old hours until its leasehold interest expired in 2015, but the appellate court reversed. The appellate court held that the Village had the authority to regulate the sale of alcohol within its borders pursuant to State statute, and that the Village properly followed the statutory procedure for voluntary annexation. Accordingly, the bar had to comply with the Village’s liquor sales ordinance, and was not “grandfathered” under the County’s old hours of operation.

Bottom Line

The case illustrates how leaseholders can fall through the cracks with regard to zoning and land use matters. The owner of the property often has the ability to proceed through rezonings, annexations, and similar procedures without the consent of the tenant, and notices of code violation and nearby pending zoning matters frequently are sent only to the owner of record. Drafters of leases may well want to consider addressing such matters during lease negotiations, particularly when representing tenants.