exhibit a proposed fort myers beach land …

Public hearing draft — June 19, 2000 of 29

EXHIBIT A

PROPOSED FORT MYERS BEACH LAND DEVELOPMENT CODE

CHAPTER 2 ADMINISTRATION

ARTICLE I. IN GENERALSec. 2-1. Requests for interpretation of a code

provision.Sec. 2-2. Compliance agreements.Secs. 2-13--2-40 Reserved.

ARTICLE II. CONCURRENCYMANAGEMENT SYSTEM

Sec. 2-41. Statutory authority.Sec. 2-42. Applicability of article.Sec. 2-43. Intent of article.Sec. 2-44. Purpose of article.Sec. 2-45. Definitions.Sec. 2-46. Concurrency certification Applicability

and exemptions.Sec. 2-47. Concurrent development orders Annual

concurrency assessment.Sec. 2-48. Greater Pine Island concurrency

Measuring the capacity of publicfacilities for additional development.

Sec. 2-49. Vested rights Concurrency timing.Sec. 2-50. Concurrency management information

system Vested rights.Sec. 2-51. Variances.Sec. 2-52. Appeals.Sec. 2-53. Revocation of concurrency certificates.Sec. 2-54. Nonliability of director.Sec. 2-55. Furnishing false information.Secs. 2-56--2-90. Reserved.

ARTICLE III. DEVELOPMENT AGREEMENTSSec. 2-91. Statutory authority.Sec. 2-92. Applicability of article.Sec. 2-93. Intent of article.Sec. 2-94. Purpose of article.Sec. 2-95. Definitions.Sec. 2-96. Applications for development

agreements.Sec. 2-97. Minimum requirements of a statutory

development agreement.Sec. 2-98. Notices and hearings.Sec. 2-99. Amendment or cancellation of

development agreement by mutualconsent.

Sec. 2-100. Reservation of home rule authority.Sec. 2-101. Conflicts between development

agreement and other land developmentregulations.

Sec. 2-102. Appeals.Secs. 2-103--2-300 140. Reserved.

ARTICLE IV. TRANSFER OFDEVELOPMENT RIGHTS

[deleted in its entirety]Secs. 2-141--2-190. Reserved.

ARTICLE V. UNAUTHORIZEDCOMMUNICATIONS

Sec. 2-191. Unauthorized communications withhearing examiner [deleted, duplicates § 34-52]

Secs. 2-192--2-230. Reserved.

ARTICLE IV VI. IMPACT FEESDivision 1. Generally

Secs. 2-231--2-260. Reserved.Division 2. Roads Impact FeeDivision 3. Regional Parks Impact Fee

Sec. 2-301. Statutory authority.Sec. 2-302. Applicability of article division.Sec. 2-303. Intent and purpose of article division.Sec. 2-304. Definitions and rules of construction.Sec. 2-305. Imposition.Sec. 2-306. Computation of amount.Sec. 2-307. Payment.Sec. 2-308. Benefit district established Reserved.Sec. 2-309. Trust funds.Sec. 2-310. Use of funds.Sec. 2-311. Refund of fees paid.Sec. 2-312. Exemptions and credits.Sec. 2-313. Credits.Sec. 2-3143. Appeals.Sec. 2-3154. Enforcement of article division;

penalty; furnishing false information.Secs. 2-3165--2-419 340. Reserved.

Division 4. Community Parks Impact FeeDivision 5. Fire Protection and Emergency

Medical Services Impact Fee


ARTICLE V VII. CODE ENFORCEMENTHEARING EXAMINER

Sec. 2-420. Intent.Sec. 2-421. Creation of position of hearing

examiner.Sec. 2-422. Applicability.Sec. 2-423. Definitions.Sec. 2-424. Enforcement procedure.Sec. 2-425. Conduct of hearing.Sec. 2-426. Powers of the code enforcement

hearing examiner.Sec. 2-427. Penalties and liens.Sec. 2-428. Appeals.Sec. 2-429. Notices.Sec. 2-430. Citation procedures; penalties.Sec. 2-431. Conflict.Secs. 2-432--2-459. Reserved.

ARTICLE VI. IMPLEMENTINGPUBLIC CAPITAL IMPROVEMENTS

Sec. 2-460. Applicability.Sec. 2-461. Purpose and intent.Sec. 2-462. Procedures.

ARTICLE I. IN GENERAL

Sec. 2-1. Requests for interpretation of a codeprovision.

Where a question arises as to the meaning orintent of a section or subsection of this code, awritten request for an interpretation may be filedwith the director as provided in § 34-208.

Sec. 2-2. Compliance agreements.

(a) Authority. The town manager has theauthority to enter into compliance agreements tofacilitate compliance with the terms and conditionsof this code. However, the town manager is underno obligation to enter into a compliance agreement.

(b) Purpose. The purpose of a complianceagreement is to provide an alternative means toreach compliance with the terms of this code in theevent a violation is discovered.

(c) Procedure. Compliance agreements may onlybe entered into prior to the violator’s receipt of anotice of hearing of code enforcement action beforethe code enforcement hearing examiner. The

agreement must be in writing and executed inrecordable form, after review and approval by thetown attorney. At a minimum, the agreement mustspecifically set forth the terms and obligationsnecessary to abate the violation. The agreementmust also provide a specific abatement time frame.The town may, at its option, record the complianceagreement in the public records. If a copy of theagreement is recorded, the town will record asatisfaction or release of the agreement once theviolation is deemed abated. The parties mustcomply with all terms of the agreement, in thestated time frame, before the violation will bedeemed abated. In the event the parties fail tocomply with the terms of the agreement, the townmay pursue code enforcement action. If the townpursues code enforcement action subsequent to theexecution of the compliance agreement, the termsof the agreement will have no further effect on theparties and will not be binding on the hearingexaminer.

(d) Enforcement. The terms and conditions of acompliance agreement may be enforced in a courtof competent jurisdiction by injunction or an actionfor specific performance. In the event the partiesexecute but do not perform all obligations under anagreement, the town may pursue code enforcementhearing examiner action in accordance with articleVII. The hearing examiner is not responsible for theenforcement of compliance agreement obligations.


ARTICLE II. CONCURRENCYMANAGEMENT SYSTEM

Sec. 2-41. Statutory authority.

The Town of Fort Myers Beach board of countycommissioners has authority to adopt this articlepursuant to article VIII of the constitution of thestate and F.S. chs. 125, 163, 166 and 380.

Sec. 2-42. Applicability of article.

This article shall apply to the entireunincorporated area of the town county.

Sec. 2-43. Intent of article.


This article is intended to implement theconcurrency requirements imposed by Rule 9J-5.0055, Florida Administrative Code; objective 11-B and policies 11-B-1 through 11-B-10 of the FortMyers Beach Comprehensive Plan; 22.1 andpolicies 70.2.1 and 70.1.3(1) through 70.1.3(6) ofthe Lee Plan; any public facility mitigationrequirements pursuant to 1990 amendments to theLee Plan; and F.S. §§ 163.3177(10)(h),163.3202(1) and (2)(g), 163.3167(8), and 163.3180.

Sec. 2-44. Purpose of article.

The purpose of this article is to ensure thatpublic facilities and services needed to supportdevelopment are available concurrent with theimpacts of such development by providing thatcertain public facilities and services meet or exceedthe standards established in the capitalimprovements element in the Fort Myers BeachComprehensive Plan Lee Plan and required by F.S.§§ 163.3177 and 163.3180, and are available whenneeded for the development, while protecting thevested rights of persons guaranteed them by theConstitution of the United States of America, thestate constitution and the laws of the state, andacknowledged by the state legislature in F.S. §163.3167(8).

Sec. 2-45. Definitions.

(a) The following words, terms and phrases,when used in this article, will have the meaningsascribed to them in this subsection, except wherethe context clearly indicates a different meaning:

Backlogged roads [deleted]

Board of county commissioners [deleted]

Building permit means an official document orcertification which authorizes the construction,alteration, enlargement, conversion, reconstruction,remodeling, rehabilitation, erection, demolition,moving or repair of a building or structure.

Certificate of concurrency compliance [deleted]

Certificate of concurrency exemption [deleted]

Concurrency certificate [deleted]

Concurrency variance certificate means thecertification issued by the director pursuant to § 2-51. This certification means that the director hasdetermined that a variance from the strictconcurrency requirements of the Fort Myers BeachComprehensive Plan Lee Plan must be granted withrespect to a specific development permit so as toavoid the unconstitutional taking of propertywithout due process of law.

Conditional certificate of concurrencycompliance [deleted]

Constrained roads [deleted]

Developer means any person, including agovernmental agency, undertaking anydevelopment.

Development means the carrying out of anybuilding activity or mining operation, the making ofany material change in the use or appearance of anystructure or land, or the dividing of land into threeor more parcels. It is intended to have the samemeaning given in F.S. § 380.04.

Development order means any order granting orgranting with conditions an application for adevelopment permit.

Development permit means any building permit,subdivision approval, certification or variance orany other official action of local government havingthe effect of permitting the development of land.This definition conforms to that set forth in F.S. §163.3164(7), except that it does not include zoningpermits, zoning variances, rezoning, and specialexceptions, preliminary plan approvals, and specialpermits which, by themselves in the county, do notpermit the development of land.

Director means the town manager countyadministrator, or any other person designated by thetown manager county administrator to exercise theauthority or assume the responsibilities given thedirector in this article.

Equivalent residential connections [deleted]

Final development order [deleted]

Hearing examiner [deleted]


Fort Myers Beach Comprehensive Plan Lee Planmeans the town’s county comprehensive planwhich was adopted pursuant to F.S. ch. 163 onJanuary 31, 1989, and effective March 1, 1989, andall subsequent amendments thereto.

Mobile home move-on permit [deleted]

Permanent traffic [deleted]

Planned development rezoning [deleted]

Preliminary development order [deleted]

Preliminary plan approval [deleted]

Regulatory Level-of-service standards means theminimum acceptable level of service as set forth inthe Fort Myers Beach Comprehensive Plan,summarized in policies 11-B-1 through 11-B-4. LeePlan, policy 70.1.3, subsections 1 through 6.

Rule 9J-5.0055 means the rule and any subpartthereof published in the Florida AdministrativeCode.

Cross reference(s)--Definitions and rules of constructiongenerally, § 1-2.

Sec. 2-46. Applicability and exemptions.

(a) Certain development permits can be expectedto create zero or insignificant impacts on publicfacilities and are therefore exempt from theconcurrency requirements of this article:

(1) Residential building permits for remodeling,minor additions, and accessory structuresthat do not result in additional dwelling unitsor attract additional vehicular traffic.

(2) Commercial building permits for interiorremodeling or other minor improvementsthat are not for the purpose of changing theuse of the buildings and do not increase itsfloor area.

(3) Marine permits for seawalls, riprap, docks,boathouses, davits, and similarimprovements that will not attract additionalvehicular traffic.

(4) Permits for signs, vegetation, and repairs thatwill not attract additional vehicular traffic.

(b) Certain other types of development permits,such as special exceptions, variances, and rezonings

(conventional or planned development), are notimmediately measured against concurrencystandards because they do not contain a specificplan for development or authorize any actualdevelopment. The concurrency tests shall beapplied to such development activities when furtherdevelopment permits are requested that willauthorize actual development, such as developmentorder pursuant to ch. 10 or building permitspursuant to ch. 6. Nonetheless, the town councilmay evaluate the probable concurrency impacts ofsuch proposed development activities at theseearlier stages as one factor in their determinationwhether or not to approve such activities.

(c) Development permits for activities other thanthose exempted by subsection (a) or deferred bysubsection (b) shall not be issued if they wouldcause public facilities and services to fall below theminimum level-of-service standards established inthe Fort Myers Beach Comprehensive Plan.Standards have been established for potable water,sanitary sewer, solid waste, stormwatermanagement, recreation, and transportation (seepolicies 11-B-1 through 11-B-4). The Fort MyersBeach Comprehensive Plan contains a financiallyfeasible plan for maintaining these standards.

Sec. 2-47. Annual concurrency assessment.

(a) The current status of the adopted level-of-service standards shall be evaluated by the director,who shall annually compile and publish anassessment of public facilities for which level-of-service standards have been established, including asummary of available, committed, and uncommittedcapacity:

(1) Available capacity shall be analyzed inaccordance with § 2-48(a), with additionalrelevant information that is available to thedirector.

(2) Any portion of the available capacity that iscommitted to previously permitteddevelopment shall be identified. At aminimum, this shall include developmentorders for new development within the Townof Fort Myers Beach, in accordance with §2-48(b). The director may include additionalexpected development that has not yet beenissued development orders or buildingpermits. The director is not responsible forassessing development commitments outside


the town limits, but shall include suchinformation if it is reasonably available fromLee County, the Metropolitan PlanningOrganization, or other sources.

(3) The assessment shall also report anyadditional public facilities that are beingplanned; or any known facilities that havenot been operating properly (such as waterpressure falling below the minimum standardof 20 pounds per square inch anywhere inthe distribution system).

(b) Based on the assessment in subsection (a),the director shall recommend to the town councilwhether there is any cause to withhold or conditionbuilding permits or development orders during thefollowing year. The town council shall review thedirector’s report and recommendation at a publicmeeting and, by approving or modifying the report,shall establish the availability and capacity of eachfacility to accommodate impacts from expectedlevels of further development. This action, asupdated periodically by the town council, shallserve to bind the town to the estimates of availablecapacity described in the report. Once approved bythe town council, these estimates shall empower theissuance of development permits where suchestimates reasonably demonstrate that sufficientinfrastructure capacity will be available to serve alldevelopments which are reasonably expected tooccur during the period of time approved by thetown council.

Sec. 2-48. Measuring the capacity of publicfacilities for additional development.

(a) The available capacity of public facilities andservices shall be measured as follows:

(1) For potable water, available capacity isbased on the difference between the totalpermitted plant design capacity of theFlorida Cities Water Company’s watersystem south of the Caloosahatchee and thepeak daily flow through this system duringthe previous calendar year. This difference,measured in gallons per day, is available toserve new development in the service area.

(2) For sanitary sewer, available capacity isbased on the difference between the totalpermitted plant design capacity of the LeeCounty Utilities’ Fort Myers Beach/Iona-McGregor service area and the peak month’s

flow during the previous calendar year(divided by the number of days in thatmonth). This difference, measured in gallonsper day, is available to serve newdevelopment in the service area.

(3) For solid waste, available capacity is basedon the difference between the currentcapacity of Lee County’s waste-to-energyplant and current peak usage of that facility.This difference, measured in tons per day, isavailable to serve new development county-wide.

(4) For stormwater management, availablecapacity is based on the reported depth thatevacuation routes, emergency shelters, andessential services were flooded during orafter storms of varying intensities. Depths offlooding shall be as reported by emergencyservices personnel, town or county officials,or other reliable sources.

(5) For recreation, available capacity is basedon the existence of specified park facilities,including a recreation complex, ballfields,tennis courts, basketball courts, play equip-ment, gymnasium, community meetingspaces, and programming of activities.

(6) For transportation, available capacity isbased on actual traffic counts from LeeCounty’s permanent count station on EsteroBoulevard near Donora Boulevard. The totalcounts in both directions for the seven hoursbetween 10:00 A.M. and 5:00 P.M. shall besummed for all days in each month. Thesesums shall be divided by seven and by thenumber of days in that month, yielding anaverage traffic flow (measured in vehiclesper hour) during the peak period for thatmonth. The amount that each month’saverage is below the level-of-servicestandard of 1,300 vehicles per hour is theamount of capacity available to serveadditional demand.

(b) Part or all of the available capacity of publicfacilities may already be committed to otherdevelopments. Prior commitments shall be assessedas follows:

(1) For potable water, sanitary sewer, and solidwaste, the level-of-service standards in theFort Myers Beach Comprehensive Plan shallbe applied to new development that hasreceived building permits and development


orders pursuant to ch. 6 and 10 but that wasnot occupied at the time that measurementsof available capacity were made inaccordance with §§ 2-48(a) (1), (2) and (3).The available capacity shall be reduced bythose amounts.

(2) For stormwater management, newdevelopment is required to meet drainagerequirements of the South Florida WaterManagement District (SFWMD). Forpurposes of this article, the adequacy of asurface water management system shall beconclusively demonstrated upon the issuanceof a SFWMD surface water constructionpermit, or if a project is exempted fromSFWMD permits, equivalent approval underch. 10 of this code.

(3) For recreation, the level-of-service standardhas concluded that additional developmentwithin the town will be adequately served bythe existing level of recreation services. Forpurposes of this article, the continuation ofthat level of service shall be deemedadequate for concurrency purposes.

(4) For transportation, additional developmentwithin the town will reduce the level ofservice on Estero Boulevard unless thetown’s strategies for alternate travel modesare successfully implemented. There is lessof a direct numerical correlation betweennew development and traffic levels on EsteroBoulevard (compared to the directcorrelation for potable water, sanitary sewer,and solid waste); and in the peak season,traffic congestion worsens due to high levelsof traffic from outside the town. However,for purposes of this article, tabulations shallbe maintained of expected traffic generationfrom previously approved development. Thisshall include building permits anddevelopment orders issued pursuant to ch. 6and 10 of this code but not yet been occupiedat the time that measurements of availablecapacity were made in accordance with § 2-48 (a)(6).

Sec. 2-49. Concurrency timing.

(a) Development permits can be issued whenpublic facilities that provide potable water, sanitarysewer, solid waster, stormwater management, andrecreation are in place and available to serve new

development at the adopted levels of service. If oneor more of these standards are not currently met butimprovements are funded and scheduled, thendevelopment permits can be issued only if they aresubject to the condition that a certificate ofoccupancy will not be granted until all necessaryfacilities and services are in place and available toserve the development at the adopted levels ofservice.

(b) Development permits can be issued whentransportation facilities sufficient to serve newdevelopment at the adopted level of service are inplace or are under construction. If this standard isnot currently met, development permits can only beissued if:

(1) improvements to remedy the deficiency areincluded in a fully funded capitalimprovements program contained in the FortMyers Beach Comprehensive Plan and arescheduled for completion no more than threeyears after issuance of a certificate ofoccupancy (provided that the comprehensiveplan complies with the requirements of9J-5.055(3)(c)2.); or

(2) improvements to remedy the deficiency arethe subject of an enforceable developmentagreement, or an agreement or developmentorder pursuant to F.S. ch. 380, which ensuresthat improvements will be in place andavailable to serve the development at theadopted level of service not more than threeyears after issuance of a certificate ofoccupancy.

Sec. 2-46. Concurrency certification. [deleted inits entirety]

Sec. 2-47. Concurrent development orders. [deleted in its entirety]

Sec. 2-48. Greater Pine Island concurrency. [deleted in its entirety]

Sec. 2-49 50. Vested rights.

(a) No person has a vested right, by virtue of anydevelopment order issued on or after March 1,1989, to receive a subsequent development orderwhere the development permitted by the subsequentorder would have an impact on the public facilitiesand services listed in F.S. § 163.3180(1), and for


which regulatory levels of service are established inthe Lee Plan.

(b) No person shall have a vested right, by virtueof any development order issued prior to March 1,1989, to receive a subsequent development orderwithout first submitting an application to thedirector for a formal determination of vested statusand issuance of a certificate of concurrencyexemption.

(c) Persons owning DRI development ordersissued prior to March 1, 1989, pursuant to F.S. §380.06(5) or F.S. § 380.061(5)(b) shall be vested tocomplete their developments in accordance with thespecific provisions of those development orders,including mitigation of all impacts, without havingto comply with the concurrency levels of servicerequirements of the Lee Plan, regardless of whetherthey have commenced development or arecontinuing in good faith. A determination ofvesting pursuant to this subsection does not exempta developer from submission of project datarequired by the director. Submission of project dataassists the county in monitoring impacts oninfrastructure as development progresses. Anydevelopment order vested pursuant to thissubsection amended on or after March 1, 1989,shall be subject to full concurrency requirements asto those portions of the development which arebeing approved or changed. However, if anamendment to a DRI development order vestedpursuant to this subsection results in a reduction ofanticipated impacts on public facilities andservices, the director, in his discretion, may findthat the proposed amendment does not impair theoverall vested status of the development.

(d) (a) Persons holding valid building permits orowning county development orders issued pursuantto ch. 6 or 10, excluding development ordersdescribed in subsection (c) of this section, issuedbefore March 1, 1989, shall be vested to completetheir developments in accordance with the preciseterms of those their development orders asapproved in writing or shown on accompanyingplans without having to comply with theconcurrency level of service requirements of theFort Myers Beach Comprehensive Plan, Lee Plan,provided that development has commenced prior toJanuary 1, 1999, September 1, 1989, and iscontinuing in good faith. A determination of

vesting pursuant to this subsection does not exempta developer from submission of project datarequired by the director. Submission of project dataassists the town county in monitoring impacts oninfrastructure as development progresses. Anydevelopment order vested pursuant to thissubsection which is amended on or after January 1,1999, March 1, 1989, shall be subject to fullconcurrency requirements as to those portions ofthe development which are being approved orchanged. However, if an amendment to adevelopment order vested pursuant to thissubsection results in a reduction of anticipatedimpacts on public facilities and services, thedirector, in his discretion, may find that theproposed amendment does not impair the overallvested status of the development.

(e) (b) Persons owning developed property forwhich ch. 15 of the Fort Myers BeachComprehensive Plan the Lee Plan providesguaranteed rebuilding rights shall be vested torebuild to the extent so guaranteed them withouthaving to comply with the concurrency level ofservice requirements of the Fort Myers BeachComprehensive Plan Lee Plan.

(f) A certificate of concurrency exemption issuedpursuant to a determination of vested rights shallrun with the land and shall not be assignable ortransferable, except to subsequent purchasers orinheritors of the subject property.

(g) (c) Excepting development orders describedin subsection (c) of this section, A determination ofvested rights shall be valid for a period equal to theoriginal maximum possible duration of a finaldevelopment order, but without extensions. Thetown board of county commissioners shall not grantthe extension of a final development order absentreview by the director and a finding of continuingconcurrency eligibility.

(h) Excepting development orders described insubsection (c) of this section, a determination ofvested rights for projects which have received anofficial determination by the county of exemptionfrom Ordinance No. 82-42, as amended, will bevalid for a period of five years from the date thedevelopment standards ordinance exemptiondetermination was issued.


Sec. 2-50. Concurrency managementinformation system. [deleted in its entirety]

Sec. 2-51. Variances.

(a) So as To provide for a reasonable economicuse of land in those rare instances where a strictapplication of the concurrency requirements of thisarticle would constitute an unconstitutional takingof property without due process of law, the directormay issue a concurrency variance certificate. Thiscertificate may be issued only if the director findsall of the following circumstances to be true:

(1) There are not sufficient facilities available toserve the development without violating theminimum concurrency requirements of thisarticle;

(2) No reasonable economic use can be made ofthe property unless a development permit forthe property for which application has beenmade is issued;

(3) No reasonable economic use can be made ofthe property by conditioning thedevelopment permit upon sufficient facilitiesbecoming available, as provided for in thisarticle; and

(4) The request to vary from the concurrencyrequirements of this article is the minimumvariance which would allow any reasonableeconomic use of the property in question.

The director may require the applicant tosubstantiate the circumstances set forth insubsections (a)(2) through (4) of this section bysubmitting a report prepared by a professionalappraiser. Upon verifying the existence of each ofthe circumstances set forth in subsections (a)(2)through (4) of this section, the director may issuehis concurrency variance certificate with suchconditions as he believes are reasonably necessaryto protect the public health, safety and welfare andgive effect to the purpose of this article whileallowing the minimum reasonable use necessary tomeet constitutional requirements. If the director hasreason to question the truth of such circumstancesas set forth in the appraiser’s report, the directormay hire an independent professional appraiser toverify whether reasonable economic use can bemade of the property without the issuance of thepermit requested by the applicant. Where thereports of the individual appraisers are inconsistent,the town council board of county commissionersshall decide which appraiser’s report will establish

the minimum reasonable use of the property inquestion.

(b) Any development order which is issuedbased upon a concurrency variance certificate shallbe consistent with it and incorporate all of theconditions placed on the certificate by the director.

(c) Concurrency variance certificates shall bevalid for the lesser of three years from the date ofissuance or the normal duration of the developmentpermit.

(d) Except for building permits, developmentpermits which have been issued based upon a validconcurrency variance certificate shall be valid forthe period of three years from the date when thepermit is granted or the normal duration of thedevelopment permit, whichever is less, therebyenabling the developer to begin the work permittedor to apply for additional development permits notinconsistent with the permit issued, using theconcurrency certificate from the issued permit tosatisfy the concurrency review requirements forsuch additional permits. Building permits issuedbased upon a valid concurrency variance certificateshall be valid for the normal duration of thebuilding permit; however, the original permit shallnot be extended more than twice without triggeringnew concurrency review.

(e) The director’s action in issuing a concurrencyvariance certificate is not a development orderwhich can be appealed pursuant to F.S. § 163.3125.

Sec. 2-52. Appeals.

Except for challenges to development orderscontrolled by the provisions of F.S. § 163.3215, anydecision made by the director in the course ofadministering this article may be appealed inaccordance with those procedures set forth in ch. 34for appeals of administrative decisions. In cases ofchallenges to development orders controlled by F.S.§ 163.3215, no suit may be brought and no verifiedcomplaint, as explained in F.S. § 163.3215(4), maybe filed or accepted for filing until the developmentorder giving rise to the complaint has become finalby virtue of its having been issued by the directoror by virtue of its having been ordered by the towncouncil county hearing examiner on an appealreversing the director’s denial of the development


permit, or by the board of county commissioners incases where the town council board has grantedplanned development zoning or an extension of adevelopment order. Once a development order hasbeen granted, the provisions of F.S. § 163.3215 willbe the sole means of challenging the approval ordenial of a development order, as that term isdefined in F.S. § 163.3164(6), when the approval ofthe development order is alleged to be inconsistentwith the Fort Myers Beach Comprehensive Plan.Lee Plan, in which case An action brought pursuantto F.S. § 163.3215 will be limited exclusively to theissue of comprehensive plan consistency.

Sec. 2-53. Revocation of concurrencycertificates.

The director may revoke a concurrency approvalor variance certificate for cause where it acertificate has been issued based on substantiallyinaccurate information supplied by the applicant, orwhere revocation of the certificate is essential tothe health, safety or welfare of the public.

Sec. 2-54. Nonliability of director.

The director shall not be held personally liablefor any incorrect decisions he may make inadministering this article. The town county shall, atits cost, defend the director in any action involvingsuch decisions and shall indemnify the director forany personal judgments which may be renderedagainst him.

Sec. 2-55. Furnishing false information.

Knowingly furnishing false information to thedirector, or any town or county official, on anymatter relating to the administration of this articleshall be punishable in accordance with § 1-5.


ARTICLE III.DEVELOPMENT AGREEMENTS


The Town of Fort Myers Beach board of countycommissioners has the authority to adopt thisarticle pursuant to article VIII, § 1(f), of the

constitution of the state and F.S. §§ 125.01,163.3220(5), and 163.3223 and 166.021.

Sec. 2-92. Applicability of article.

This article shall apply to the entireunincorporated area of the town county.

Sec. 2-93. Intent of article.

This article is intended to enable the Town ofFort Myers Beach county to invoke the provisionsof the Florida Local Government DevelopmentAgreement Act while retaining all of the home ruleauthority given it pursuant to article VIII of theconstitution of the state and F.S. chs. 125, 163, 166and 380, to enter into other similar agreementsbeyond the provisions of the Florida LocalGovernment Development Agreement Act, and toestablish specific notice and hearing procedureswhen it makes certain such similar agreementspursuant to its home rule authority.

Sec. 2-94. Purpose of article.

(a) The purpose of this article is to invoke theauthority recognized in the town county by the statein F.S. § 163.3223, to enter into developmentagreements with any and all persons having legal orequitable interests in real property located in theunincorporated area of the town county pursuant tothe provisions of the Florida Local GovernmentDevelopment Agreement Act. Vendees under aspecifically enforceable contract for the sale of realproperty shall be recognized as having a sufficientequitable interest so as to have legal capacity tobecome a party to a development agreement madepursuant to the Florida Local DevelopmentAgreement Act, but persons having only a mereoption to purchase real property shall not be sorecognized.

(b) It is also the purpose of this article toestablish notice and hearing procedures similar tothose set forth in the Florida Local DevelopmentAgreement Act when the town county makesagreements pursuant to its home rule authority inthose type of agreements which are defined in thisarticle as home rule development agreements.Development agreements made pursuant to thisarticle, whether they are home rule developmentagreements as defined in this article or agreements


made pursuant to the Florida Local GovernmentDevelopment Agreement Act, are intended toprotect and further the public health, safety andwelfare by providing certain guarantees to landdevelopers in exchange for their agreement toprovide specified public facilities or services whichare related to and consistent with the town’scounty’s capital improvement planning andfinancing.


(a) The following words, terms and phrases,when used in this article, shall have the meaningsascribed to them in this subsection, except wherethe context clearly indicates a different meaning:

Development agreement means either a homerule development agreement or a statutorydevelopment agreement.

Home rule development agreement means anagreement made by the town county pursuant to itshome rule powers, and not pursuant to the FloridaLocal Government Development Agreement Act,but only in those cases where development, asdefined in F.S. § 163.3221(3), is to be undertakenby a person who is not a local government, asdefined in F.S. § 163.3221(9), or an agency of thestate or the United States of America. Moreover,home rule development agreements specifically donot mean agreements made between the towncounty and other parties where the purpose of theagreement is exclusively to provide or pay for theconstruction, improvement, maintenance or otheralteration of land or personalty by third partieswhere the property in question is owned or is to beowned by the town county or some othergovernmental agency.

Statutory development agreement means anyagreement made specifically pursuant to the FloridaLocal Government Development Agreement Act.

(b) All other terms which are used in anystatutory development agreement made by the towncounty pursuant to the Florida Local GovernmentDevelopment Agreement Act, as such act may beamended from time to time, shall be defined as setforth in F.S. § 163.3221, unless otherwisespecifically defined in a particular statutorydevelopment agreement. Terms not so defined shall

be given their ordinary and customary meanings.


Sec. 2-96. Applications for developmentagreements.

No person shall have the right to apply for orreceive development agreement approval, unlesssuch right is so provided in an appropriateadministrative code which establishes proceduresfor such applications. Should such anadministrative code be adopted, then the townboard of county commissioners shall establish aschedule of fees and charges which shall beimposed for the filing and processing of each suchapplication. Unless otherwise provided byadministrative code, development agreements shallbe considered by the town council board of countycommissioners only upon the recommendation ofthe town manager county administrator, who maysubmit a proposed development agreement, inwritten form, for consideration by the town councilboard pursuant to the public hearing requirementsof F.S. § 163.3225 and § 2-98. Each such proposeddevelopment agreement so submitted shall includethe town manager’s county administrator’srecommendation as to whether the council boardshould become or decline to become a party to theagreement, or a modified form of the agreement,with such information as the town manager countyadministrator deems necessary to support hisrecommendation.

Sec. 2-97. Minimum requirements of a statutorydevelopment agreement.

Statutory development agreements shall include,at a minimum, all of the items enumerated in F.S. §163.3227, plus such conditions, terms, restrictionsor other requirements which the parties to theagreement may desire to include and which are nototherwise prohibited by law or which exceed theauthority of the parties. If a statutory developmentagreement provides that any public facilities are tobe designed or constructed by the developer, thenthe agreement shall require that the design andconstruction be in compliance with all applicablefederal, state and town county standards andrequirements, including but not to be limited toguarantees of performance and quality and projectcontrols, including scheduling, quality and quality


assurance. When public facilities are to be designedor constructed by the developer, or when thedeveloper agrees to dedicate land to the towncounty, the statutory development agreement shallspecifically state the extent to which such design orconstruction or dedication shall be eligible forimpact fee credits pursuant to such impact feeordinances as the town county may have in effect atthe time when the statutory development agreementis to become effective. Statutory developmentagreements also shall incorporate the administrativeappeal process set forth in § 2-102.

Sec. 2-98. Notices and hearings.

No statutory development agreement shall bemade pursuant to this article unless and until all ofthe requirements of F.S. § 163.3225 relating to theagreement have been satisfied. To that end, anaffected property owner, as the term is used in F.S.§ 163.3225, means all owners of property, asreflected on the current year’s tax roll, lying within375 feet in every direction of the subject property.The town council board of county commissioners,by adopting an appropriate administrative code,may prescribe more stringent notice requirements.In addition, if a statutory development agreement isintended to rezone property, grant variances oraccomplish any other approval which otherwisewould be controlled by ch. 34, the notices requiredin ch. 34 also shall be given. The same notice andhearing requirements also should be observed whenmaking home rule development agreements.However, failure to satisfy all of such notice andhearing requirements shall not be grounds toinvalidate a home rule development agreement.

Sec. 2-99. Amendment or cancellation ofdevelopment agreement by mutual consent.

A statutory development agreement adoptedpursuant to this article may be amended or canceledby mutual consent of the parties to the agreement orby their successors in interest utilizing the samepublic hearing and notice requirements as areprescribed for the adoption of developmentagreements pursuant to this article and anyadministrative code authorized by § 2-98.

Sec. 2-100. Reservation of home rule authority.

Nothing contained in this article shall be

construed so as to prevent the town county fromentering into an agreement which is substantiallysimilar to a development agreement adoptedpursuant to the Florida Local GovernmentDevelopment Agreement Act but which is basedupon the home rule authority granted the towncounty pursuant to article VIII, § 1(f), of theconstitution of the state and F.S. chs. 125, 163, 166and 380, and specifically recognized by the statelegislature in F.S. § 163.3220(5).

Sec. 2-101. Conflicts between developmentagreement and other land developmentregulations.

To the extent that this land development codemay permit it and a development agreementpurports to rezone land, grant deviations orvariances from this land development code,including article II of this chapter, grantpreliminary development orders or finaldevelopment orders or amendments to orextensions thereof equivalent to those which areavailable pursuant to ch. 10, implementdevelopment orders or amendments to developmentorders for developments of regional impact, orgrant building permits or other permits whichspecifically allow the physical alteration orimprovement of land, the development agreementmust explicitly identify each instance of conflictwith other ordinances and expressly provide for thedevelopment agreement to control, or else all of theprovisions of such other ordinances shall control tothe extent that the development agreement fails toexpressly provide otherwise. Any ambiguity withrespect to whether a development agreement or anordinance is to control shall be interpreted to favorthe ordinance.

Sec. 2-102. Appeals.

No person may challenge the validity of adevelopment agreement on the grounds that theagreement conflicts with the town’s county’scomprehensive plan except pursuant to theprocedures set forth in F.S. § 163.3215. A party ora successor in interest to a party to a developmentagreement may bring suit to challenge the town’scounty’s administration of a developmentagreement only after he has exhausted theadministrative remedies prescribed in ch. 34 forappeals from administrative actions.


Secs. 2-103--2-300 140. Reserved.

ARTICLE IV. TRANSFER OFDEVELOPMENT RIGHTS

[deleted in its entirety]

ARTICLE V. UNAUTHORIZEDCOMMUNICATIONS

[deleted in its entirety, duplicates § 34-52]

ARTICLE IV VI. IMPACT FEES

DIVISION 1. GENERALLYSecs. 2-231--2-260. Reserved.

DIVISION 2. ROADS IMPACT FEEREPEALED [INCORPORATED INTO MAINARTICLE]

DIVISION 3. REGIONAL PARKS IMPACTFEE


The Town of Fort Myers Beach board of countycommissioners has the authority to adopt thisarticle division pursuant to article VIII of theconstitution of the state, F.S. ch. 166 125 and F.S.§§ 163.3201, 163.3202 and 380.06(16).

Sec. 2-302. Applicability of article. division.

This article division shall apply to the entireunincorporated area of the town. county and withinany municipality which enters into an interlocalagreement with the county to collect regional parksimpact fees during the term of such agreement.

Sec. 2-303. Intent and purpose of article.division.

(a) This article division is intended to implementand be consistent with the Fort Myers BeachComprehensive Plan. Lee Plan.

(b) The purpose of this article division is toregulate the use and development of land so as toensure that new development bears a proportionate

share of the cost of capital expenditures fortransportation, regional parks, community parks,and fire protection, necessary to provide regionalparks in the county as contemplated by the FortMyers Beach Comprehensive Plan. Lee Plan.

Sec. 2-304. Definitions and rules of construction.

(a) For the purposes of administration andenforcement of this article, unless otherwise statedin this article, all transportation terms shall have thesame meaning as in the Fort Myers BeachComprehensive Plan, and in ch. 34 and ch. 10,unless otherwise indicated.

(b) The following words, terms and phrases,when used in this article division, shall have themeanings ascribed to them in this section and in thelatest edition of the Institute of TransportationEngineers (ITE) manuals, except where the contextclearly indicates a different meaning:

Assisted living facility has the same meaninggiven it in ch. 34.

Building official means the same that officer asappointed by the town manager through § 6-44.who is so defined in ch. 6, article II. Within anyparticipating municipality, the term “buildingofficial” means that person whose duties andauthority are similar to that of the county’s buildingofficial, regardless of the title given such person.

Building permit means an official document orcertification which is issued by the building officialauthorizing and which authorizes the construction,alteration, enlargement, conversion, reconstruction,remodeling, rehabilitation, erection, demolition,moving, or repair of a building or structure. In thecase of a change in use or occupancy of an existingbuilding or structure, the term shall specificallyinclude certificates of occupancy and occupancypermits, as those permits are defined or required bythis code. county ordinance. The terms “buildingpermit” and “certificate of occupancy permit” alsomean those municipal permits which are equivalentto these county permits, regardless of the names bywhich they are called within a municipality.

Building with mixed uses means a buildingwhich contains more than one principal use, as thatterm is defined in ch. 34.


Capital improvement for community or regionalparks means land acquisition, site improvements,including landscape plantings and the removal ofexotic vegetation, off-site improvements associatedwith a new or expanded community or regionalpark, buildings and equipment. Off-siteimprovements may also include sidewalks andbikeways which connect to the park facility. Capitalimprovements do not include It does not meanmaintenance and operations.

Capital improvement for fire protection includesland acquisition and related expenses, siteimprovements, off-site improvements associatedwith new or expanded facilities, buildings andequipment, including communications equipment,with an average useful life of at least three years,but excludes maintenance and operations.

Capital improvement for transportation meanspreliminary engineering, engineering designstudies, land surveys, right-of-way acquisition,engineering, permitting and construction of all thenecessary features for transportation constructionprojects, including but not limited to:

(1) Construction of new or improved through orturn lanes;

(2) Construction of curbs, medians, sidewalks,bicycle paths, and shoulders in conjunctionwith roadway construction;

(3) Construction of new pedestrian or bicyclefacilities;

(4) Construction of new bridges;(5) Construction of new drainage facilities in

conjunction with other transportationconstruction;

(6) Purchase and installation of trafficsignalization (including both newinstallations and upgrading signalization);

(7) Relocating utilities to accommodate newtransportation construction; and

(8) On-street and off-street parking when suchparking is intended for and designed toprotect or enhance the vehicular andpedestrian capacity of the existing streetnetwork.

Site-related road improvements as defined hereinare not a capital improvement for transportationunder this definition.

Community park means a tract of landdesignated and used by the public primarily for

active recreation but also used for educational andsocial purposes and passive recreation. Communityparks also include bikeways that are designed andused primarily for active recreation. A communitypark generally serves a specific communitycomposed of at least several neighborhoods.Community park standards are based upon severalsubclassifications of community parks: standardcommunity parks, community recreation centers,community pools, and school parks. The term“community park” specifically includes school sitesand publicly owned parks that are available for useby the surrounding neighborhoods.

Convenience food and beverage store [deleted]

County administrator [deleted]

Duplex [deleted]

Fast food restaurant has the same meaning givenit in ch. 34.

Feepayer means a person applying to the towncounty, or to any participating municipality, for theissuance of a building permit, mobile home move-on permit or recreational vehicle development orderfor a type of land development activity specifiedlisted in the impact fee schedule in § 2-306(a),regardless of whether the person owns the land tobe developed.

Fire district means the Fort Myers Beach FireControl District, a special district which isauthorized to provide fire protection and rescueservice.

Fire protection means the prevention andextinguishment of fires, the protection of life andproperty from fire, and the enforcement ofmunicipal, county and state fire prevention codes,as well as any law pertaining to the prevention andcontrol of fires, when enforcement duties areperformed by firefighters, as defined in F.S. §633.30, or by fire safety inspectors, as defined inF.S. § 633.021(8), and such other persons who maybe employed by a fire district. The term “fireprotection” also includes rescue and emergencymedical services.

Fort Myers Beach Comprehensive Plan Lee Planmeans the town’s county comprehensive plan


adopted pursuant to F.S. ch. 163, as amended fromtime to time.

General office means, for the purpose of thisarticle only, any type of office except a medicaloffice. A general office building may containaccessory uses such as a beauty or barber shop,shack bar, cafeteria, day care center, or other useswhere permitted by ch. 34.

Hotel/motel has the same meaning given it in ch.34.

Land development activity means any change inland use, or any construction of buildings orstructures, or any change in the use of any buildingor structure that adds living units, attracts orproduces vehicular trips, or requires fire protection.

Living unit has the same meaning given it in ch.34.

Medical office has the same meaning given it inch. 34.

Mobile home [deleted]

Mobile home move-on permit [deleted]

Multiple-family building has the same meaninggiven it means and includes those definitions setforth in ch. 34 for multiple-family building, duplex,townhouse, and two-family attached.

Park trailer [deleted]

Participating municipality [deleted]

Private Recreational facility has the samemeanings given it in ch. 34.

Recreational vehicle [deleted]

Recreational vehicle development order [deleted]

Regional park means a tract of land designatedand used by the public for active and passiverecreation. A regional park draws users from alarger area than a community park, frequently fromthe entire county and beyond, by providing accessto especially attractive natural resources, amenities

and specialized activities. The Lee Plan’s regionalpark standards are based upon severalsubclassifications of regional parks: district parks,nature preserves and special area regional parks. Itspecifically includes municipally owned parkswhen they are used as regional parks.

Retail store means the use of a building to sellgoods and to provide personal services (asdescribed in ch. 34) to the general public.

Road has the same meaning given it in F.S. §334.03.

Shopping center means an integrated group ofcommercial establishments planned and managedas a unit, consisting primarily of retail stores butsometimes containing other uses such asrestaurants, offices, and personal services.

Single-family residence has the same meaninggiven it in ch. 34.

Site-related road improvements means physicalimprovements and right-of-way dedications fordirect access improvements to the development inquestion. Direct access improvements include butare not limited to the following:

(1) Site driveways and roads;(2) Median cuts made necessary by those

driveways or roads;(3) Right turn, left turn, and deceleration or

acceleration lanes leading to or from thosedriveways or roads;

(4) Traffic control measures for those drivewaysor roads; and

(5) Roads or intersection improvements whoseprimary purpose at the time of constructionis to provide access to the development.

Timeshare unit has the same meaning given it inch. 34.

Town manager means the manager of the Townof Fort Myers Beach, or the officials that he or shemay designate to administer the various provisionsof this article.

Townhouse [deleted]

Two-family attached [deleted]


Warehouse means the use of a building orstructure primarily for the storage of goods, boats,or vehicles.


Sec. 2-305. Imposition.

(a) Except as provided in §§ 2-312 through 2-314, any person who, after September 16, 1985,seeks to develop land by applying to the county orany participating municipality for the issuance of abuilding permit, mobile home move-on permit orrecreational vehicle development order to make animprovement to land for one of the uses which isspecified in § 2-306 shall be required to pay aregional parks impact fees in the manner andamount set forth in this article division.

(b) No building permit, mobile home move-onpermit or recreational vehicle development orderfor any activity requiring payment of an impact feespursuant to § 2—306 shall be issued by the towncounty or any participating municipality unless anduntil the regional parks impact fees required by thisarticle have division has been paid.

(c) In the case of structures, mobile homes orpark trailers which are moved from one location to

another, a regional parks impact fees shall becollected for the new location if the structure,mobile home or park trailer is a type of landdevelopment listed in § 2-306, regardless ofwhether regional parks impact fees had been paid atthe old location, unless the use at the new locationis a replacement of an equivalent use. If thestructure, mobile home or park trailer so moved isreplaced by an equivalent use, no regional parksimpact fees shall be owed for the replacement use.In every case, the burden of proving past paymentof regional parks impact fees or equivalency of userests with the feepayer.

Sec. 2-306. Computation of amount.

(a) At the option of the feepayer, the amount ofthe regional parks impact fees may be determinedby the schedule set forth in this subsection.

(b) References in this schedule to square feetrefers to the gross square footage of each floor of abuilding measured to the exterior walls, and not tousable, interior, rentable, noncommon, or otherforms of net square footage. The reference in theschedule to recreational vehicles refers to thenumber of recreational vehicle sites which arepermitted by the applicable final developmentorder.


FORT MYERS BEACH IMPACT FEE SCHEDULE

LAND USE TYPE LIVING UNIT

Total Regional ParksImpact Fees per Unit at 100% of Actual Full Cost

(rounded to nearest dollar)

Transportation — — Parks — —

Fire ProtectionRegional CommunityResidential (fee per dwelling unit):

Single-family residence $1,712 $2,436 $253 $619 $57.60 $560Multiple-family building, duplex, two-family attached, or townhouse

$1,075 $1,687 $131 $408 $37.80 $269

Mobile home $775 $210 $439 $48.60Timeshare unit $1,477 $1,834 $228 $867 $81.00 $269Hotel/motel room $1,420 $1,834 $179 $417 $0.90 $308Recreational vehicle site $1,038 $199 $417 $0.90Assisted living facility

(see § 34-1494 for density equivalents) $1,687 $131 $408 $269

Commercial (fee per 1,000 sq ft except as noted):Retail store or shopping center $3,297 $3,992 $0 $0 $186.30 $549Bank $3,297 $6,063 $0 $0 $186.30 $549Car wash, self-service (fee per stall) $3,297 $7,749 $0 $0 $186.30 $549Convenience store with gas pumps $11,177 $8,715 $0 $0 $186.30 $549Movie theater $3,297 $5,600 $0 $0 $186.30 $549Restaurant, fast food $7,947 $9,886 $0 $0 $186.30 $549Restaurant, standard $3,297 $4,905 $0 $0 $186.30 $549

Office (fee per 1,000 square feet):General office $1,990 $2,254 $0 $0 $25.20 $594Medical office $4,169 $6,334 $0 $0 $69.30 $594

Institutional (fee per 1,000 square feet):Church $1,402 $0 $0 $549Day care center $3,900 $0 $0 $549Elementary/secondary school (private) $611 $0 $0 $549

Warehouse (fee per 1,000 square feet): $722 $1,198 $0 $0 $1.80 $123

(b) If a building permit is requested for a buildingwith mixed uses, as defined in § 2-304, then the feesshall be determined according to the schedule byapportioning the total space within the buildingaccording to the space devoted to each principal use.However, a shopping center will be considered aprincipal use.

(c) If the type of development activity for which abuilding permit is applied is not specified on theschedule, the town manager shall use the feeapplicable to the most nearly comparable type ofland use on the schedule. For transportation impactfees, the town manager shall be guided in the

selection of a comparable type by the Institute ofTransportation Engineers’ Trip Generation (latestedition), studies or reports by the federal, state, andcounty departments of transportation, and articles orreports appearing in the ITE Journal. If the townmanager determines that there is no comparable typeof land use on the fee schedule set out in thissubsection, then the town manager shall determinethe fee by:

(1) Using traffic generation statistics from thesources named in this subsection; and

(2) Applying the formula set forth in subsection(f) of this section

(d) (c) When change of use, redevelopment or


modification of an existing use requires the issuanceof a building permit, mobile home move-on permitor recreational vehicle development order, theregional parks impact fees shall be based upon thenet increase in the impact fee for the new use ascompared to the previous use. However, should thechange of use, redevelopment, or modification resultin a net decrease, no refunds or credits for pastimpact fees paid shall be made or created.

(e) (d) If an the regional parks impact fee hasbeen calculated and paid based on error ormisrepresentation, it shall be recalculated and thedifference refunded to the original feepayer orcollected by the town paid, whichever is applicable.If regional parks impact fees are owed, noparticipating municipality or county permits of anytype may be issued for the building or structure inquestion, or for any other portion part of adevelopment of which the building or structure inquestion is a part, until all impact fees are paid.while the fees remain unpaid, and The buildingofficial may bring any action permitted by law orequity to collect unpaid fees.

(f) (e) The person applying for the issuance of abuilding permit, mobile home move-on permit orrecreational vehicle development order may, at hisoption, submit evidence to the town manager countyadministrator indicating that the fees set out in theimpact fee schedule in subsection (a) of this sectionare not applicable to the particular development.Based upon convincing and competent evidence,which shall be prepared and submitted in accordancewith any applicable the county administrative code,the town manager county administrator may adjustthe fee to that appropriate for the particulardevelopment.

(1) The adjustment may include a credit forprivate recreational facilities provided to thedevelopment by the feepayer if the privaterecreational facilities serve the same purposesand functions as set forth in the Lee Plan forregional and/or community parks.

(2) If a feepayer opts not to have thetransportation impact fee determinedaccording to the impact fee schedule in thissection, then the feepayer shall prepare andsubmit to the town manager an independentfee calculation study for the land developmentactivity for which a building permit is sought.The independent fee calculation study shall

measure the impact of the development inquestion on the transportation system byfollowing the prescribed methodologies andformats for such studies established by LeeCounty’s administrative code. The feepayermust attend a preapplication meeting withtown manager or designee to discuss thetraffic engineering and economicdocumentation required to substantiate therequest. The traffic engineering or economicdocumentation submitted must address allaspects of the impact fee formula that thecounty manager determines to be relevant indefining the project’s impacts at thepreapplication meeting and must show thebasis upon which the independent feecalculation was made, including but notlimited to the following:a. Traffic engineering studies.

1. Documentation of trip generation ratesappropriate for the proposed landdevelopment activity;

2. Documentation of trip lengthappropriate for the proposed landdevelopment activity; and

3. Documentation of trip data appropriatefor the proposed land developmentactivity.

b. Cost documentation studies. The feepayermay also provide documentationsubstantiating that the costs toaccommodate the impacts of the proposeddevelopment, or the revenue credits due tothe development, differ from the averagefigures used in developing the feeschedule. This documentation shall beprepared and presented by qualifiedprofessionals in their respective fields andshall follow best professional practices andmethodologies.

(3) The following formula shall be used by thetown manager to determine the transportationimpact fee per unit of development:


Impact Fee =VMT x NET COST/VMT

Where: VMT = ADT x %NEW x LENGTH ÷ 2 ADT = Trip ends during average weekday

%NEW = Percent of trips that are primary,as opposed to passby or diverted-link trips

LENGTH = Average length of a tripon the approved road system

÷ 2 = Avoids double-counting tripsfor origin and destination

NET COST/VMT = COST/VMT - CREDIT/VMTCOST/VMT = COST/LANE-MILE ÷ AVG LANE

CAPACITY

COST/LANE-MILE = Average cost to add a new laneto the approved roadway system

AVG LANE CAPACITY = Average daily capacity of a laneat level of service “D”

CREDIT/VMT = $/GAL ÷ MPG x 365 x NPV

$/GAL = Capacity-expanding funding forroads per gallon of gasolineconsumed

MPG = Miles per gallon, average for U.S.motor vehicle fleet

365 = Days per year (used to convertdaily VMT to annual VMT)

NPV = Net present value factor (i.e.,12.46 for 20 years at 5% discount)

Sec. 2-307. Payment.

(a) The feepayer shall pay the regional parksimpact fees required by this article division to thebuilding official prior to the issuance of the buildingpermit, mobile home move-on permit or recreationalvehicle development order for which the fees are isimposed. No building permit, mobile home move-onpermit or recreational vehicle development ordermay be issued for any development listed in theimpact fee schedule in § 2-306(a) by the county orany participating municipality until such the impactfees have has been paid.

(b) In lieu of cash, up to 97 percent of the regionalparks impact fees may be paid by the use of creditswhich are created in accordance with the provisionsof §§ 2-312(b) and 2-314.

(c) (existing text modified and relocated to § 2-310(c))

(c) (d) All funds collected pursuant to this article

division shall be promptly transferred for depositinto the appropriate regional parks impact fee trustfunds and used solely for the purposes specified inthis article division.

Sec. 2-308. Benefit district established Reserved.

For purposes of this division, there is herebyestablished a single countywide regional parksimpact fee benefit district. Subdistricts may becreated by interlocal agreement.

Sec. 2-309. Trust funds.

(a) There is hereby established four a regionalparks impact fee trust funds, one each fortransportation, regional parks, community parks, andfire protection. Regional parks impact fees collectedprior to October 1, 1989, shall be transferred anddeposited into this fund. Subsidiary accounts may beestablished for subdistricts created by interlocalagreement.

(b) Funds withdrawn from these this accountsmust be used in accordance with the provisions of §2-310.

Sec. 2-310. Use of funds.

(a) Funds collected from regional parks impactfees shall be used only for the purpose of capitalimprovements for transportation, regional parks,community parks, and fire protection, as defined in §2-304. Regional parks impact Impact fee collections,including any interest earned thereon, lessadministrative costs retained pursuant to subsection(c d) of this section, shall be used exclusively forcapital improvements or expansion within thecounty. These impact fee funds shall be segregatedfrom other funds and shall be expended in the orderin which they are collected. Funds may be used orpledged in the course of bonding or other lawfulfinancing techniques, so long as the proceeds raisedthereby are used for the purpose of capitalimprovements. for regional parks. If these funds orpledge of funds are combined with other revenuesources in a dual or multipurpose bond issue or otherrevenue-raising device, the proceeds raised therebyshall be divided and segregated in such a fashionthat the amount of such proceeds reserved forregional park purposes bears the same ratio to thetotal funds collected that the regional parks impact


fee funds used or pledged bear to the total fundsused or pledged.

(b) Each fiscal period the year the town managershall present to the town council countyadministrator shall, after consultation withparticipating municipalities and consistent with theprovisions of any interlocal agreements made withthem, present to the board of county commissionersa proposed capital improvement program fortransportation, regional parks, and community parks,assigning funds, including any accrued interest, fromthe appropriate regional parks impact fee trust fundto specific capital regional park projects. Monies,including any accrued interest, not assigned in anyfiscal period shall be retained in each the regionalparks impact fee trust fund until the next fiscalperiod, except as provided by the refund provisionsof this article division.

(c) [relocated from § 2-307(c)] The townParticipating municipalities shall remit regionalparks impact fees to the county, fire protectionimpact fees to the fire district at least once eachquarter month, less any amounts retained pursuant to§ 2-310(c d), unless another method is specified inan appropriate interlocal agreement.

(d) The entity actually county or the participatingmunicipality collecting regional parks impact feesshall be entitled to retain up to three percent of theregional parks impact fees it collects in cash, or by acombination of cash and credits, as an administrativefee to offset the costs of administering this articledivision.

Sec. 2-311. Refund of fees paid.

(a) If a building permit, mobile home move-onpermit or recreational vehicle development orderexpires, is revoked, or is voluntarily surrendered,and is therefore or otherwise becomes voided, andno construction or improvement of land (includingmoving a mobile home onto land) has beencommenced, then the feepayer shall be entitled to arefund of the regional parks impact fees paid as acondition for its issuance, except that three percentof the fee paid shall be retained as an administrativefee to offset the cost of processing the refund.Subject to the limitations set forth in subsection (b)of this section, the feepayer shall be entitled to arefund equal to 97 percent of the regional parks

impact fees paid. No interest shall be paid to thefeepayer on refunds due to noncommencement.

(b) No refund shall be allowed for any expiredpermit or development order which was obtainedwith the use of credits, except for that portion of theregional parks impact fee which was not paid bycredit, in which case the three percent administrativefee described in subsection (a) of this section shallbe deducted from the portion of the fee which wasnot paid by credit.

(b) (c) Any funds not expended or encumbered bythe end of the calendar quarter immediatelyfollowing six ten years from the date the regionalparks impact fee was paid shall, upon application ofthe feepayer within 180 days of that date, bereturned to the feepayer with interest at the rate ofsix percent per annum.

Sec. 2-312. Exemptions and credits.

(a) The following shall be exempted frompayment of the regional parks impact fees:

(1) Alteration or expansion of an existingbuilding or use of land, where no additionalliving units will be produced over and abovethose in the existing use of the property, andwhere the use is not changed and where noadditional vehicular trips or demand for fireprotection will be produced over and abovethat produced by the existing use.

(2) The construction of accessory buildings orstructures which will not produce additionalliving units over and above those in theprincipal building or use of the land andwhere no additional vehicular trips or demandfor fire protection will be produced over andabove that produced by the existing use.

(3) The replacement of an existing lawfullypermitted building, mobile home, park traileror structure, the building permit or mobilehome move-on permit for which was issuedon or before September 16, 1985, or thereplacement of a building, mobile home, parktrailer or structure that was constructed orplaced subsequent thereto and for which thecorrect regional parks impact fee which wasowed at the time the building permit ormobile home move-on permit was applied forwas paid or otherwise provided for, with anew building, mobile home, park trailer or


structure of the same use and at the samelocation, provided that no additional livingunits, vehicular trips, or fire protectiondemands will be produced over and abovethose produced by the original use of the land.

(4) An amendment to a recreational vehicledevelopment order, provided that theamended recreational vehicle developmentorder does not increase the number ofrecreational vehicle units permitted.

(4)(5) A building permit obtained by or for theUnited States of America, the state, or thecounty school board.

(5)(6) A building permit, mobile home move-onpermit or recreational vehicle developmentorder for which the regional parks impact feesthereof have has been or will be paid orotherwise provided for pursuant to a writtenagreement, zoning approval, or developmentorder which, by the written terms thereof,clearly and unequivocally was intended toprovide for the full mitigation of the projectedsuch impact by enforcement of the agreement,zoning approval or development order, andnot by the application of this article division.

(6)(7) A building permit, mobile home move-onpermit or recreational vehicle developmentorder which does not result in an additionalliving unit, additional vehicular trips, orincreased need for fire protection oremergency medical services.

(8) A building permit for residential constructionin Harlem Heights, Charleston Park, and theDunbar Enterprise Zone as those areas aredescribed in Appendix J.

(9) A building permit for construction which isincluded in the City of Sanibel’s belowmarket rate housing (BMRH) programestablished under the Sanibel landdevelopment code.

(10) Any building permit issued in anyredevelopment area or enterprise zone, or forlow- or moderate-income housing, in theCity of Cape Coral or the City of FortMyers, but only when such permit isidentified by the type of land use and by theland area or housing or redevelopmentprogram in question by explicit languageincluded in an appropriate interlocalagreement.

(b) Exemptions must be claimed by the feepayer

at the time of the application for a building permit.Any exemptions not so claimed will be deemedwaived by the feepayer.

Sec. 2-313. Credits.

(a) (b) Impact fee credits are shall be subject tothe following:

(1) Prohibitions. No credit shall be given fordesign or construction of site-related roadimprovements or local roads. No credit shallbe given for private recreational facilitiesexcept pursuant to an independent feecalculation prepared and accepted inaccordance with § 2-306(f d).

(2) Eligibility. All Other approved capitalimprovements for transportation, regional orcommunity parks, or fire protection maygenerate corresponding regional parks impactfee credits in amounts to be establishedpursuant to subsection (b)(3) of this section orby an appropriate interlocal agreement. Theright to determine whether a capitalimprovement will be approved for creditpurposes lies exclusively with the town.county, unless otherwise provided in anappropriate interlocal agreement, or unlessthe improvement is required under aparticipating municipality, state or countydevelopment or zoning approval, in whichcase credits shall be given to the extentrequired by law.

(2) The county will issue regional park impactfee credit for the value of critical occupiedhabitat in accordance with § 10-474(e)(3)when the size of habitat preserved on a givenproject exceeds the open space requirementsof ch. 10.

(3) Conditions of credit approval. Credit forcapital improvement construction or landdedication is subject to the following:a. Construction. A formal request for impact

fee construction credits must include adetailed project description and completeWhen a person requests that a credit becreated for regional park construction, heshall present cost estimates prepared byqualified professionals to be used by thecounty administrator in determining andsufficient to enable the town manager toverify these cost estimates and therebydetermine the amount of the credit which


the town manager county administratorwill recommend be authorized by the towncouncil board of county commissioners.Construction credits for transportationprojects may be given as the town councilshall determine on a case-by-case basis ifit finds that the granting of such creditswill not significantly affect futuretransportation impact fee collectionswithin the town. The amount of creditshall be limited to the actual verified costsof construction and may be reduced by thepercentage to which the capacity of theimprovement in question is reasonablyexpected to be utilized by futuredevelopment on adjacent lands owned orcontrolled by the grantor. This amountthen may be further reduced, as the councilshall determine, to reflect the council’sestimate of the value of the acceleratedconstruction in relation to the town’sschedule for construction.

b. Land dedication. When a person proposescredit A formal request for impact feecredits for land dedication must include:,he shall present the following:1. A survey of the land to be dedicated,

certified by a professional landsurveyor or a duly registered landsurveyor, each of whom are andlicensed in by the state;

2. A specimen of the deed which heproposes to use to convey title to theappropriate governmental body;

3. An ALTA Form B title insurance policyin an amount equal to the approvedvalue of the credits, to be issued by acompany satisfactory to the towncounty attorney and verifying that theproffered deed will conveyunencumbered fee simple title to theappropriate governmental body;

4. Property appraisals prepared byqualified professionals that appraise theland as part of the whole developmentor parent parcel; and

5. A document from the tax collectorstating the current status of propertytaxes on the land. A certified copy ofthe most recent assessment of theproperty for tax purposes, to be used bythe county administrator in making his

recommendation for the amount of thecredit which the board of countycommissioners may authorize.

c. Valuations. In preparing their reports,appraisers shall value, except where adedication is made pursuant to a conditionof zoning approval, the land at its then-current zoning and without any enhancedvalue which could otherwise be attributedto improvements on adjacent lands. If theland in question is subject to a validagreement, zoning approval ordevelopment order which prescribes adifferent valuation, the agreement, zoningapproval or development order shallcontrol. If the dedication is made pursuantto a condition of zoning approval and isnot a site-related improvement, and thezoning condition does not specificallyprescribe otherwise, the land shall bevalued based upon the zoning of the landas it existed prior to the zoning approvalwhich contains the condition of dedication.

d. Limitations on credit for landdedications. The amount of credit whichthe council may approve shall be limited tothe value of the land in question, asdetermined by the methodology andprocedures set out in this section, and maybe reduced by the percentage to which thecapacity of the improvement in question isreasonably expected to be utilized byfuture development on adjacent landsowned or controlled by the grantor. Thisamount then may be further reduced, as thecouncil shall determine, to reflect thecouncil’s estimate of the value of theaccelerated acquisition in relation to thetown’s construction schedule.

e. Independent determinations. The townmanager However, the countyadministrator retains the right toindependently determine the amount ofcredit to be recommended by securingother engineering and construction costestimates and/or property appraisals forthose improvements or land dedications. Inapplicable every cases, regional parksimpact fee credits shall be calculated so asto be consistent with F.S. §380.06(16)(198597).

(4) Timing of credit issuance. Credits for


construction shall be created when theconstruction is completed and accepted by theappropriate governmental body formaintenance, or when the feepayer postssecurity, as provided in this subsection, forthe costs of such construction. Credits forland dedication shall be created when the titleto the land has been accepted by theappropriate governmental body and recordedin the official records of the clerk of circuitcourt. Security in the form of cash, aperformance bond, an irrevocable letter ofcredit or an escrow agreement shall be postedwith the town council board of countycommissioners, made payable to the towncounty in an amount approved by the townmanager county administrator equal to 110percent of the full cost of such construction. Ifthe park construction project will not beconstructed within one year of the acceptanceof the offer by the town county, the amount ofthe security shall be increased by ten percent,compounded for each year of the life of thesecurity. The security shall be reviewed andapproved by the town county attorney’s officeprior to acceptance of the security by thetown. county. If the park is to be owned by aparticipating municipality, the county mayassign its rights in such security to themunicipality if the municipality requests itand the law permits it.

(5) Transferability. Regional parks Impact feecredits created on or after October 1, 1989,shall be in transferable form and may be sold,assigned or otherwise conveyed as set forth inthe county administrative code. They may beused to pay or otherwise offset regional parksthe same type of impact fees required by thisarticle. division, consistent with any interlocalagreements made with participatingmunicipalities. Unless a longer period isspecifically authorized by the board of countycommissioners, Such transferable creditsmust be used within six years of the date theyare created, which date is the date theinstruments conveying legal title to the landor improvements, which were given inexchange for credits, were recorded in thecounty’s official record book. If, during thisperiod, regional parks impact fees areincreased, unused transferable credits, whenused to pay for the impacts of a particular use

listed in § 2-306, also shall be increased at thetime they are used, in the same percentagethat the fee prescribed in § 2-306 on the datewhen the credit is used for the particularlisted use in question has increased over thefee which was prescribed for the same use onthe date when the transferable credit wascreated, rounded to the nearest dollar, asillustrated in the examples given in exhibit Aof Ordinance No. 90-15, which is on file inthe office of the county department of publicresources. Credits not used during this periodshall expire. Any person who accepts creditsin exchange for the dedication of land orimprovements does so subject to thelimitations on the use, duration, nonrefundprovisions and other restrictions prescribed inthis division. article. Impact fee creditspreviously issued by Lee County related todevelopment or capital improvements in thetown will be accepted as if they were issuedby the town, provided the six-year life ofthose credits have not expired.

(6) [deleted in its entirety](7) [deleted in its entirety]

(6)(8) Withdrawal of offer. Any person who offersland or improvements in exchange for creditsmay withdraw the offer of dedication at anytime prior to the transfer of legal title to theland or improvements in question and pay thefull impact fees required by this articledivision.

(9) [deleted in its entirety]

(b) (d) Feepayers claiming credits shall submitdocumentation sufficient to permit the buildingofficial to determine whether such credits claimedare due and, if so, the amount of such credits.

(c) (e) Exemptions or Credits must be claimed bythe feepayer at the time of the application for abuilding permit, mobile home move-on permit orrecreational vehicle development order. Anyexemptions or credits not so claimed shall bedeemed waived by the feepayer.

(d) (f) Once used, credits shall be canceled andshall not be reestablished even if the permit forwhich they were used expires without construction.

(e) Any person seeking credits for dedication ofland must meet with the town manager or designee


to seek agreement on appraisal methodology andassumptions before preparing any appraisals forvaluation of land to be dedicated.

(f) The town may delegate to Lee County certainadministrative matters regarding impact fees,pursuant to interlocal agreement.


Any decision made by the town manager countyadministrator or his designee, or by the buildingofficial, in the course of administering this articledivision may be appealed in accordance with thoseprocedures set forth in ch. 34 for appeals ofadministrative decisions. So as to provide continuityin the interpretation and administration of thisdivision, every interlocal agreement made pursuantto this division shall specifically incorporate thisappeal procedure; and each participatingmunicipality shall agree to be bound by the resultsof the administrative appeal. These interlocalagreements shall provide further that, if theadministrative appeal decision is further appealed tothe circuit court by another person, the appeal shallbe defended by the county, at its expense, unless themunicipality elects to provide the defense of the caseitself.

Sec. 2-3154. Enforcement of article division;penalty; furnishing false information.

A violation of this article division shall bepunishable according to § 1-5; however, in additionto or in lieu of any criminal prosecution, the county,or any regional parks impact feepayer, shall have thepower to sue for relief in civil court to enforce theprovisions of this article division. Knowinglyfurnishing false information to the town manager,county administrator or his designee, or the buildingofficial or any municipal official who is chargedwith the administration of this division on anymatter relating to the administration of this articledivision shall constitute a violation thereof.

Secs. 2-3165--2-419 340. Reserved.

DIVISION 4. COMMUNITY PARK IMPACTFEE REPEALED (INCORPORATED INTO MAINARTICLE)

DIVISION 5. FIRE PROTECTION AND

EMERGENCY MEDICAL SERVICES IMPACTFEE REPEALED (INCORPORATED INTO MAINARTICLE)

ARTICLE VII. CODE ENFORCEMENTHEARING EXAMINER

Sec. 2-420. Intent.

The intent of this article is to promote, protect andimprove the health, safety and welfare of the citizensof Fort Myers Beach by using Lee County’s bycreating the position of code enforcement hearingexaminer and granting the power to imposeadministrative fines, including costs of prosecution, and other noncriminal penalties in order to providean equitable, expeditious, effective and inexpensivemethod of enforcing any Lee County code,ordinance or regulation in effect.

Sec. 2-421. Creation of position of hearingexaminer.

For the purpose of enforcing Lee County codesand regulations of the Town of Fort Myers Beach,the town council may contract with Lee Countythrough interlocal agreement for the use of theposition of hearing examiner is hereby createdpursuant to F.S. ch. 162. as created by the The boardof county commissioners will hire the requisitenumber of hearing examiners necessary toappropriately handle the volume of codeenforcement cases requiring prosecution.

Sec. 2-422. Applicability.

This article is applicable to the unincorporatedareas of the Town of Fort Myers Beach Lee County.


[For the purposes of this article, the followingwords and phrases shall have the meaningsrespectively ascribed to them by this section:]

Board means the board of county commissionersof Lee County, Florida.

Hearing examiner means the officer appointed bythe Lee County Board of County Commissioners,


including any deputy hearing examiners or hearingexaminers pro tempore, to hear matters concerningcompliance with codes and ordinances.

Code inspector means any authorized agent oremployee of the Town of Fort Myers Beach LeeCounty whose duty it is to assure code compliance.Whenever the town council contracts with LeeCounty to provide code enforcement services, LeeCounty code inspectors shall serve as Fort MyersBeach code inspectors.

County attorney [deleted]

Director [deleted]

Repeat violation means a violation of a provisionof a code or ordinance by a person who haspreviously been found to have violated the sameprovision within five years prior to the currentviolation.

Sec. 2-424. Enforcement procedure.

(a) Initiation of proceedings. It will be the dutyof the code inspector to initiate code enforcementproceedings.

(b) Initial violation. Except as provided in §§ (c)and (d) of this section, if a code inspector finds aviolation of Lee County town regulations, noticeindicating the type of violation found and themanner in which it may be corrected must be givento the violator. The notice must also provide areasonable time in which to correct the violation. Ifthe violation continues beyond the time provided forcorrection or abatement, the code inspector mayrequest a hearing before the hearing examiner. Thecode enforcement section will schedule a hearingand provide written notice of the hearing to theviolator. A case may be presented to the hearingexaminer even if the violation has been correctedprior to the hearing, provided the violation was notcorrected within the specified time period or theviolation was corrected and reoccurred and thenotice indicates the possibility of theseconsequences.

(c) Repeat violation. If a repeat violation is found,the code inspector must notify the violator of thetype of violation and the manner in which it can beabated, but the violator is not entitled to a reasonable

time in which to correct the violation. Once theviolator has been notified of the repeat violation, thecode inspector may request a hearing before thehearing examiner. The code enforcement sectionwill schedule a hearing and provide written notice ofthe hearing to the violator. The case may bepresented to the hearing examiner even if the repeatviolation is corrected prior to the hearing providedthe notice indicates the possibility of theseconsequences.

(d) Immediate hearing. If the code inspectorinspection has reason to believe a violation or thecondition causing the violation presents a seriousthreat to the public health, safety and welfare, or ifthe violation is irreparable or irreversible in nature,the code inspector, after making a reasonable effortto notify the violator, may request an immediatehearing before the hearing examiner.

Sec. 2-425. Conduct of hearing.

(a) Scheduling of hearings. A regular time andplace will be designated by the hearing examiner forcode enforcement proceedings. The frequency ofthese hearings will be based upon the number ofcases to be heard. If necessary, the hearing examinermay also set a special hearing to take place on a dayor at a time not regularly set aside for codeenforcement proceedings. The code inspectorenforcement section is responsible for scheduleingcases to be heard by the hearing examiner. All codeenforcement proceedings and hearings will be opento the public, but no public input will be taken.

(b) Prosecution of the case. Each case on thecode enforcement docket will be presented to thehearing examiner by the town attorney. a countyattorney familiar with the case. If the town prevailsboard is successful in prosecuting a case before thehearing examiner, it will be entitled to recover allcosts incurred in prosecuting the case. For purposesof this section, the issuance of an order findingviolation will be evidence that the town hasprevailed in prosecuting the case.

(c) Hearing testimony. The hearing examiner willproceed to hear the cases on the docket for that day.All testimony will be under oath and recorded.Testimony may be taken from the code inspector andthe alleged violator. Formal rules of evidence willnot apply, but fundamental due process is to be


observed and will govern the proceedings.

(d) Hearing examiner order. At the conclusion ofthe hearing, the hearing examiner will issue awritten order containing findings of fact andconclusions of law based on evidence of record, theactions necessary to abate any violation, the fine tobe imposed if the violation is not, or has not been,abated, and an award of the costs of prosecution dueand owing to the town. The hearing examiner hasthe discretion to grant additional time for abatementof the violation. The date for abatement will be setout in the written order. If the violation is of the typedescribed in § 2-424(d), the cost of repairs incurredby the town pursuant to § 2-427(a) may be includedas pat of the administrative fine. and based upon theevidence presented, the hearing examiner must issuefindings of fact, conclusions of law and an orderaffording appropriate relief consistent with thepowers granted herein. An order finding a violationmay include a notice that it must be complied withby a specified date and that failure to comply by thatdate may result in a fine being imposed in theamount state in the order and, if the violation is ofthe type described in § 4-424(d) hereof, the cost ofrepairs may be included with the fine.

(e) Recording the order. Certified copies oforders may be recorded in the public records of LeeCounty and will constitute notice to any subsequentpurchasers, successors in interest, or assigns if theviolation concerns real property. The findings in therecorded order are binding upon the violator and, ifthe violation concerns real property, subsequentpurchasers, successors in interest, or assigns. If anorder has been recorded in the public recordspursuant to this subsection, then after receivingproof the violation is abated, the hearing examinerwill issue an order acknowledging abatement thatmust also be recorded in the public records. Ahearing is not required to issue an orderacknowledging abatement. Failure of a violator topay the costs of prosecution assessed againsthim/her by the date specified in the order findingviolation may also result in the recording of theorder in the public records of Lee County, and willconstitute a lien on the subject property and all otherproperties of the violator. A certified copy of theorder finding violation may be recorded in the publicrecords of Lee County and will be binding on theviolator. If the recorded order concerns real propertyit will constitute notice to, and be binding upon, any

subsequent purchasers, successor in interest, orassigns. If an order finding violation is recorded inthe public records and subsequently complied withby the date specified in the order, the hearingexaminer must issued an order acknowledgingcompliance that is also recorded in the publicrecords. A hearing is not required to issue an orderacknowledging compliance.

Sec. 2-426. Powers of the code enforcementhearing examiner.

The Lee County code enforcement hearingexaminer has the power and authority to:

(1) Adopt rules for the conduct of codeenforcement hearings.

(2) Subpoena alleged violators and witnesses tocode enforcement hearings. Subpoenas maybe served by the sheriff of the county.

(3) Subpoena evidence to code enforcementhearings.

(4) Take testimony under oath.(5) Issue orders having the force of law to

command whatever steps are necessary tobring a violation into compliance.

(6) Assume jurisdiction over a case originallypresented to the county code enforcementboard.

Sec. 2-427. Penalties and liens.

(a) Order imposing fine/lien. The hearingexaminer, upon sworn notification by the codeinspector that a code enforcement violation has notbeen abated, may order the violator to pay a fine notto exceed $250 for each day the violation continuespast the date set for abatement. If an order requiringabatement has been issued by the hearing examiner,a hearing is not necessary for the imposition of afine. However, if a dispute arises as to whetherabatement has occurred, the hearing examiner maygrant a request for hearing if the request is made bythe respondent in writing setting forth the reasonsfor dispute, either on the date set for abatement orwithin ten days thereafter. For a repeat violation, thehearing examiner may order the violator to pay afine not to exceed $500 per day per violation fromthe date the repeat violation was noticed to theviolator by the code inspector. Upon notification bythe code inspector that an order finding violation hasnot been complied with by the specified date or,upon finding a repeat violation has occurred, the


hearing examiner may order the violator to pay afine. The fine may be imposed for each day theviolation continues past the date specified forcompliance. In the case of a repeat violation, a finemay be imposed for each day the repeat violationcontinues beginning with the date the repeatviolation is found to have occurred by the codeinspector. If the violation is of the type described in§ 2-424(d), 4-424(d) hereof, the hearing examinermust notify the town manager, who division ofcodes and building services. The division of codesand building services may make all reasonablerepairs required to bring the property intocompliance and charge the violator with thereasonable cost of the those repairs along with thefine imposed pursuant to under this section. Ahearing will not be necessary for the issuance of anorder imposing the fine if a finding of a violation orrepeat violation has been made as provided herein.

(b) Penalties.(1) A fine imposed pursuant to under this section

cannot exceed $250.00 per day for the firstviolation or $500.00 per day for a repeatviolation. However, if the hearing examinerfinds a violation is irreparable or irreversiblein nature, a fine of up to $5,000 per violationcan be imposed. Further, the fine may includethe cost of all repairs incurred pursuant to bythe town in accordance with subsection (a)hereof as well as the costs of prosecutingprosecution of the case before the hearingexaminer. For purposes of this article, the costof prosecution costs of the case will include,but it is are not limited to, recording costs,inspection costs, appearances by the codeinspector at hearings, photography costs, andsimilar items.

(2) The following factors will be considered bythe hearing examiner in determining the fineto be imposed:a. The gravity of the violation;b. Any actions taken by the violator to

correct the violation; andc. Any previous violations committed by the

violator.(3) The hearing examiner may mitigate reduce

the fine imposed pursuant to under thissection.

(c) Creation of a lien. A certified copy of anorder imposing fines and/or assessing the costs of

prosecution may be recorded in the public recordsand thereafter will constitute a lien against the landon which the violation exists and upon any real orpersonal property owned by the violator. Uponpetition to the circuit court, such order may beenforced in the same manner as a court judgment bythe sheriffs of this state, including levy against thepersonal property, but such order will not be deemedto be a court judgment except for enforcementpurposes. A fine imposed pursuant to under thisarticle will continue to accrue until the violation isabated violator comes into compliance or untiljudgment is rendered in a suit to foreclose on a thelien filed pursuant to this section, whichever occursfirst. A lien arising from a fine imposed pursuant tounder this section runs in favor of the Town of FortMyers Beach, Lee County board of countycommissioners and the town board may execute asatisfaction or release of lien entered pursuant to inaccordance with this section. A release orsatisfaction of lien may be executed by the mayorchairman of the board on behalf of the entire councilboard. The hearing examiner may authorize the towncounty attorney to foreclose on a lien which remainsunpaid for a period of three or more months afterfiling. No lien created pursuant to under this articlemay be foreclosed on real property which is ahomestead under section 4, article X of the stateconstitution.

(d) Duration of lien. A lien established pursuantto in accordance with the provisions of this articlemay not continue for a period longer than 20 yearsafter the certified copy of an order imposing finesand/or assessing the costs of prosecution has beenrecorded, unless within that time an action toforeclose on the lien is commenced in a court ofcompetent jurisdiction. In an action to foreclose onthe lien, the prevailing party is entitled to recover allcosts, including a reasonable attorney’s fee, that itincurs in the foreclosure. The town county is entitledto collect all costs incurred in recording andsatisfying a valid lien. The continuation of the lienaffected by the commencement of an action will notbe enforceable against creditors or subsequentpurchasers for valuable consideration withoutnotice, unless a lis pendens is recorded.


An aggrieved party, including the town councilboard, may appeal a final order of the hearing


examiner to the circuit court. Such an appeal will belimited to appellate review of the record createdbefore the hearing examiner and may not be ahearing de novo. Any appeal must be filed within 30days of the execution of the order being appealed inaccordance with the Florida Rules of AppellateProcedure. A copy of the notice of appeal must beprovided to the hearing examiner, the town attorney,and the town manager. county attorney’s office andthe division of codes and building services.

Sec. 2-429. Notices.

(a) All notices required by this article must beprovided to the alleged violator by certified mail,return receipt requested; by hand delivery by thesheriff or other law enforcement officer, codeenforcement inspector, or other person designatedby the town manager board; or by leaving the noticeat the violator’s usual place of residence with anyperson residing therein who is above 15 years of ageand informing such person of the contents of thenotice.

(b) In addition to provision notice as set forth insubsection (a), notice may also be served bypublication or posting, as follows:

(1) a. Such notice must be published once duringeach week for four consecutive weeks (fourpublications being sufficient) in a Lee Countynewspaper of general circulation. Thenewspaper must meet the requirementsprescribed under F.S. ch. 50 for legal andofficial advertisements. b. Proof ofpublication must be made in accordance withF.S. §§ 50.041 and 50.051.

(2) a. In lieu of publication as described insubsection (1), such notice may be posted forat least ten days in at least two locations, onceof which must be the property upon which theviolation is alleged to exist and the other mustbe at the Lee County Justice Center. b. Proofof posting must be by affidavit of the codeinspector posting the notice. The affidavitmust include a copy of the notice posted andthe date and places of its posting.

(3) Notice by publication or posting may runconcurrently with, or may follow, an attemptor attempts to provide notice by hand deliveryor by mail as required under subsection (a).

(c) Evidence that an attempt has been made to

hand deliver or mail notice as provided in subsection(a), together with proof of publication or posting asprovided in subsection (b), will be sufficient to showthe notice requirements of this article have been met,without regard to whether or not the alleged violatoractually received such notice.

Sec. 2-430. Citation procedures; penalties.

(a) Code enforcement officer. As used in thissection, “code enforcement officer” means anydesignated employee or agent of Lee County whoseduty it is to enforce county codes and ordinances.Whenever the town council contracts with LeeCounty to provide code enforcement services, LeeCounty code enforcement officers shall serve as FortMyers Beach code enforcement officers and shallhave the powers as described herein.

(b) Citation training. The board Lee County maydesignate certain county employees or agents ascode enforcement officers. The training andqualifications necessary to be a code enforcementofficer will be determined by the county manager orhis designee administrator. Employees or agentswho may be designated as code enforcement officersinclude, but are not limited to, code inspectors, lawenforcement officers, animal control officers, or firesafety inspectors. Designation as a code enforcementofficer does not provide the code enforcementofficer with the power of arrest or subject the codeenforcement officer to the provisions of F.S. §§943.085 through 943.255.

(c) Citation issuance.(1) A code enforcement officer is authorized to

issue a citation to a person when, based uponpersonal investigation, the officer hasreasonable cause to believe that the personhas committed a civil infraction in violationof a duly enacted code or ordinance and thatthe county court will hear the charge.

(2) Prior to issuance a citation, a codeenforcement office must provide notice to theperson that a violation of a county code orordinance has been committed and provide areasonable time within which the violatormay correct the violations. Such time periodcan be no more than 30 days. If, uponpersonal investigation the code enforcementofficer finds that the person has not correctedthe violation within the time period, a citation


may be issued to the violator. If the codeenforcement officer has reason to believe thatthe violation presents a serious threat to thepublic health, safety, or welfare, or if theviolation is irreparable or irreversible, or if arepeat violation is found, the codeenforcement officer is not required to providea reasonable time in which to correct theviolation and may immediately issue acitation to the person who committed theviolation.

(3) A citation issued by a code enforcementofficer must be in a form prescribed by thecounty and contain the following:a. The date and time of issuance.b. The name and address of the person to

whom the citation is issued.c. The date and time the civil infraction was

committed.d. The facts constituting reasonable cause.e. The number or section of the code or

ordinance violated.f. The name and authority of the code

enforcement officer.g. The procedure for the person to follow in

order to pay the civil penalty or to contestthe citation.

h. The applicable civil penalty if the personelects to contest the citation.

i. The applicable civil penalty if the personelects not to contest the citation.

j. A conspicuous statement that if the personfails to pay the civil penalty within thetime allowed, or fails to appear in court tocontest the citation, he will be deemed tohave waived his right to contest thecitation and that, in such case, judgmentmay be entered against the person for anamount up to the maximum civil penalty.

(d) Deposit of original citation. After issuing acitation to an alleged violator, the code enforcementofficer must deposit the original citation and onecopy of the citation with the county court.

(e) Enforcement by citation. Any Lee Countycode or ordinance of the Town of Fort Myers Beachmay be enforced using the citation procedure. Whenthe citation procedure is used to enforce countytown codes and ordinances, the following will apply:

(1) A violation of the code or ordinance isdeemed a civil infraction.

(2) A maximum civil penalty not to exceed$500.00 may be imposed.

(3) A civil penalty of less than the maximum civilpenalty may be imposed if the person who hascommitted the civil infraction does notcontest the citation.

(4) A citation may be issued by a codeenforcement officer who has reasonable causeto believe that a person has committed an actin violation of a code or ordinance.

(5) A citation may be contested in county court.(6) Citation proceedings are necessary to enforce

county town codes and ordinances.

(f) Any person who willfully refuses to sign andaccept a citation issued by a code enforcementofficer will be guilty of a misdemeanor of the seconddegree, punishable as provided in F.S. §§ 775.082 or775.083.

(g) The provisions of this section are anadditional and supplemental means of enforcingcounty town codes and ordinances and may be usedfor the enforcement of any code or ordinance, or forthe enforcement of all codes and ordinances.Nothing in this section prohibits the county townfrom enforcing its codes or ordinances by any othermeans.

Sec. 2-431. Conflict.

In the event that any provision in this article isfound to be contrary to any other existing LeeCounty town code or ordinances covering the samesubject matter, the more restrictiveed will apply.

Sec. 2-432–2-459. Reserved

ARTICLE VI. IMPLEMENTING PUBLIC

CAPITAL IMPROVEMENTS

Sec. 2-460. Applicability.

This article applies to capital improvementprojects that have been approved by the towncouncil to be constructed wholly within theincorporated limits of the Town of Fort MyersBeach.

Sec. 2-461. Purpose and intent.


(a) The purpose of this article is to identify theapproving authorities for capital improvementsinitiated by the town council of the Town of FortMyers Beach. The council’s intent is to:

(1) streamline the approval process to correspondwith the unusual requirements of publiccapital improvements;

(2) ensure compliance with all proper buildingand floodplain management codes; and

(3) ensure that proper approvals have beenobtained from governmental agencies havinglegitimate authority over the activity inquestion.

(b) Notwithstanding any other provisions of thiscode, it is the town council’s intent to grant the townmanager the same level of authority with respect totown capital improvement projects as the directorexercises with respect to development orders underch. 10 of this code.

Sec. 2-462. Procedures.

(a) Capital improvements that require a buildingpermit under ch. 6 of this code shall be submittedand approved in the same manner as building

permits for private land development activities.

(b) Capital improvements that require a permitfrom the South Florida Water Management Districtor other state or federal agencies shall be submittedand approved in accordance with rules of thosepermitting agencies.

(c) Capital improvements that will be constructedor improved within rights-of-way maintained by LeeCounty or by the state of Florida shall be submittedto the engineering departments of those entities witha request for their approval of design andconstruction methods and materials.

(d) Capital improvements that might normallyrequire a development order under ch. 10 of thiscode may be submitted and approved through theprocesses specified in ch. 10 at the sole discretion ofthe town manager.

Chapters 3--5 RESERVED

exhibit a proposed fort myers beach land …

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