exhibit d proposed adoption of chapter 14 of the fort...

As modified February 4, 2002 of 32

Exhibit D

PROPOSED ADOPTION OF CHAPTER 14 OF THEFORT MYERS BEACH LAND DEVELOPMENT CODE

CHAPTER 14ENVIRONMENT AND

NATURAL RESOURCES1

ARTICLE I. IN GENERALBEACH AND DUNE MANAGEMENT

Sec. 14-1. Definitions.Sec. 14-2. Purpose and intent.Sec. 14-3. Destruction or diminishment of dune or

beach system.Sec. 14-4. Trash and litter on the beach.Sec. 14-5. Beach furniture and equipment.Sec. 14-6. Beach raking and wrack line policy.Sec. 14-7. Vehicular traffic on the beach.Sec. 14-8. Dune systems.Sec. 14-9. Enforcement.Sec. 14-10. Restoration standards for dune

vegetation alteration violations.Sec. 14-11. Special events on the beach.Secs. 14-12--14-7040. Reserved.

ARTICLE II.SEA TURTLE CONSERVATION

WILDLIFE AND HABITAT PROTECTIONDivision 1. Generally

Secs. 14-41--14-70. Reserved.Division 2. Sea Turtles

Sec. 14-71. Purpose and applicability of division.Sec. 14-72. Definitions.Sec. 14-73. Enforcement of division; penalty.Sec. 14-74. Exemptions from division.Sec. 14-75. Existing development.Sec. 14-76. New development.Sec. 14-77. Publicly owned lighting.Sec. 14-78. Additional regulations affecting sea

turtle nesting habitat.Sec. 14-79. Guidelines for mitigation and abate-

ment of prohibited artificial lighting.Secs. 14-80--14-110. Reserved.

ARTICLE III. SOUTHERNBALD EAGLE PROTECTION

WELLFIELD PROTECTION [deleted]Division 3. Southern Bald Eagle

Sec. 14-111. Purpose of division.Sec. 14-112. Definitions.Sec. 14-113. Violation of division; penalty.Sec. 14-114. Provisions of division supplemental.Sec. 14-115. Applicability of division.Sec. 14-116. Eagle technical advisory committee.Sec. 14-117. Public acquisition of rights and

interest in critical eagle nestinghabitat lands.

Sec. 14-118. Notification procedure.Sec. 14-119. Mechanisms for the protection of

critical eagle nesting habitat.Sec. 14-120. Compensation incentives for

protection of critical eagle nestinghabitat.

Secs. 14-121--14-290. 150. Reserved.Division 4. Manatee Protection;Caloosahatchee River System [deleted]

ARTICLE IV. WETLANDS PROTECTIONDivision 1. Generally

Sec. 14-291. Applicability. Findings of fact.Sec. 14-292. Purpose of article.Sec. 14-293. Definitions.Sec. 14-294. Prohibited activities. Penalty for

violation of article.Sec. 14-295. Permitted activities. Conflicting

provisions.Sec. 14-296. Permits required. Repealer;

applicability of previous ordinance.Sec. 14-297. Compliance enforcement. Existing

development orders and approvals.Sec. 14-298. Permitted and prohibited uses and

development.Sec. 14-299. Standards for permitted development.Sec. 14-300. Restoration standards.Secs. 14-301--14-330. Reserved.

Division 2. Administration and EnforcementSec. 14-331. Site plan review.Sec. 14-332. Variances and deviations generally. 1Cross reference(s)–Open space, buffering and

landscaping, § 10-411 et seq.; protection of habitat, § 10-471et seq.; environmentally sensitive areas, § 34-1571 et seq.


Sec. 14-333. Administrative deviation for existingsubdivisions.

Sec. 14-334. Violations.Sec. 14-335. Stop work orders.Secs. 14-298 336--14-370. Reserved.

ARTICLE V. TREE PROTECTIONDivision 1. Generally

Sec. 14-371. Reserved. Short title.Sec. 14-372. Findings of fact.Sec. 14-373. Intent and purpose of article.Sec. 14-374. Definitions.Sec. 14-375. Penalty for violation of article.Sec. 14-376. Prosecution of violations.Sec. 14-377. Exemptions from article.Sec. 14-377. Indigenous vegetation.Sec. 14-378. Suspension of article during

emergency conditions.Sec. 14-379. Nonliability of town county.Sec. 14-380. List of protected trees.Sec. 14-381. Unlawful injury of trees.Sec. 14-382. Removal of protected trees.Sec. 14-383. Tree protection during development

of land.Sec. 14-384. Restoration standards.Secs. 14-385--14-410. Reserved.

Division 2. Administration and EnforcementSec. 14-411. Permit required.Sec. 14-412. Issuance of permit.Sec. 14-413. Variances.Sec. 14-414. Inspections; notice of violation.Sec. 14-415. Stop work orders.Secs. 14-4136--14-450. Reserved.

ARTICLE VI. MANGROVEPROTECTION ENFORCEMENT

Sec. 14-451. Purpose and intent of article.Sec. 14-452. Definitions.Sec. 14-453. Enforcement of article; penalties.Sec. 14-454. Restoration standards.Sec. 14-455. Permit required.Sec. 14-456. Conflicting provisions.Sec. 14-457. Repealer; applicability of previous

ordinance.

ARTICLE I. IN GENERALBEACH AND DUNE MANAGEMENT2

[relocated from Ordinance No. 00-10]

Sec. 3 14-1. Definitions.

For the purposes of this article Ordinance, thefollowing terms, phrases, words, and derivationsshall have the meaning given herein. When notinconsistent with the context, words used in thepresent tense include the future, words in the pluralnumber include the singular number, and the wordsin the singular number include the plural number.The word “shall” is always mandatory.

Beach has the same meaning given it in § 14-72.means the soft sand portion of land lying seawardof a seawall or seaward line of vegetation andlandward of the mean low water line.

Beach furniture or equipment means anyman-made apparatus or paraphernalia designed ormanufactured for use or actually used on the beachor in the adjacent tidal waters. Examples include:chairs, tables, cabanas, and lounges, umbrellas,sailing vessels up to 16 feet in length, personalwatercraft, concession storage units, canoes,kayaks, paddles vessels, sailboards, surfboards,fishing gear, sporting equipment, floatables, tents,and bicycles.

Director means the person to whom the townmanager has delegated the authority to administerthis article, or that person’s designee.

Dune means a mound, bluff, or ridge, oremergent zone of loose sediment, usuallysand-sized sediment, lying upland of the beach anddeposited by any natural or artificial mechanism,which may be bare or covered with vegetation, andis subject to fluctuations in configuration andlocation (reference 161.54 F.S., 62B-33.002F.A.C.). It encompasses those ecological zones that,when left undisturbed, will support characterized bythe presence of dune vegetation. As to areasrestored or renourished pursuant to a permit issuedby the town or state, it encompasses the areaspecified in the permit as a dune or any area

2Cross reference(s)–Sea turtle conservation, article II ofch.14; personal watercraft and parasailing, ch. 27; water-oriented activities, div. 41 of ch. 34.


specified as suitable for establishment of dunevegetation. In the absence of a discernible dunestructure, the seaward boundary of a dune will bedeemed to be the seaward line of vegetation.

Dune vegetation, or common native dunevegetation means pioneer species of nativevegetation which, if left undisturbed by manmadeforces, will begin to grow is typically to be foundon a dune, including species such as bitter panicum,coastal panic grass, crowfoot grass, saltmeadowcordgrass, sandbur, seacoast bluestem, sea oats,seashore dropseed, seashore paspalum, seashoresaltgrass, stiffleaf eustachys, beach bean, blanketflower, dune sunflower, fiddle-leaf morningglory,partridge pea, railroad vine, sea purslane, beachcreeper, nicker bean, coin vine, inkberry, lantana,saw palmetto, seashore elder, baycedar, greenbuttonwood, cabbage palm, cocoplum, seagrape,and southern wax myrtle.

Mechanical beach raking means the cleaning ofthe sandy beach seaward of the dune and vegetationline of trash and other debris on or near the surfaceby use of a rake or other similar porous devicewhich penetrates no more than 2 inches belowexisting ambient grade and results in no removal ofin situ sand.

Seaward line of vegetation means the locationclosest to the mean high water line containing, orsuitable for, dune vegetation. If there is no suchvegetation upon a parcel or portion of a parcel, itshall encompass a line alongshore projected fromthe closest areas on each side where such vegetationdoes exist.

Wrack means the natural organic marine materialcast on the shore, including seaweed and othervegetative and animal debris, but excludingmanmade material.

Sec. 4 14-2. Purpose and intent. of the Ordinance.The Town council finds and declares:

(a) The purpose of this article the Dune & BeachManagement Plan is:

(1) To encourage a steward-like attitude towardthe town’s our most valuable asset, the ourbeach.

(2) To preserve and improve the condition ofthat asset as a place for recreation, solitude,

and preservation of our beach vegetation andmarine wildlife.

(b) This article The Dune & Beach ManagementPlan provides minimum standards to safeguard thebeach.

Sec. 5 14-3. Destruction or diminishment of duneor beach system.

(a) It is unlawful and prohibited for any person todo, conduct, or permit any of the following on abeach, upon a dune, or in the water adjacent to abeach:

(1) harass, molest, or disturb wildlife;(2) plant vegetation other than dune vegetation;(3) destroy or harm a dune or remove dune

vegetation;(4) maintain a dump of, or discard or leave litter,

garbage, trash or refuse, vegetative clippings,or debris (see § 6 14-4);

(5) deposit and leave human or animal waste(see § 6 14-4);

(6) destroy or grossly interfere with the naturalwrack line as by grooming or non-selectiveraking except as authorized in § 8 14-6;

(7) operate any air-powered or any engine-powered non-watercraft vehicle, machine, orimplement, including any battery orelectrical powered vehicle, machine, orimplement, except for a wheelchair orapproved conveyance for a person with adisability which is actually being used by theperson with a disability or as authorized in§ 9 14-7;

(8) excavate, mine, and remove, or haul sand orsoil from the beach or dune except inemergency situations as declared by theTown Council;

(9) detonate any explosive devices, includingfireworks;

(10) discharge any firearms;(11) light or maintain any open fire on

Mulholland Point (Little Estero Island);(12) temporarily reside, camp, or sleep

overnight;(13) deposit/install rocks, concrete, or other

shoreline stabilization materials without apermit from DEP and the town;

(14) deposit/add sand to the beach and dunesystem without a permit from DEP. All fillmaterial shall be sand that is similar to theexisting beach sand in both coloration and


grain size and be free of debris, rocks, clay,or other foreign matter; or

(15) conduct any commercial activities notexplicitly authorized by this code or byother town ordinances.

(b) Permits may be issued by the town managerfor activities otherwise prohibited by this section,which are found to be necessary for reasonableaccommodation of persons with disabilities; adjunctto a lawfully existing activity; for the conduct of acivic or educational activity; for the conduct ofscientific research; or for any purpose otherwisenecessary to protect or to promote the publicwelfare, for such periods of time as appropriate forthe circumstances. To the extent that a permit isallowed under the land development this code forany of the above activities, the standards andprocedures for issuance shall be governed by theland development this code.

Sec. 6 14-4. Trash and litter on the beach.

(a) Pursuant to Ordinance 99-5, dogs on a leashare allowed on the beaches within the town, butowners must properly dispose of any type of dogwaste off the beach. However, no pets shall beallowed within the confines of the Critical WildlifeArea (CWA)/Mulholland Point (Little EsteroIsland) whose territory is defined as follows: Thisarea includes the island itself and the wetlands andlagoons that have formed behind the island; thenorthern boundary is the Holiday Inn’s southernriparian line, and the easterly line is the mean highwater line of the old developed shoreline.

(b) Pursuant to Ordinance 99-7, trash and littermust be deposited within trash receptacles and notleft on the beach.

(c) Any person wishing to light an open fire onthe beach, except on Mulholland Point (LittleEstero Island) as prohibited by § 5 14-3 (a)(11) andduring sea turtle nesting season as prohibited by§ 14-78(a), is limited to a 12 inch by 12 inchcooking fire that must be applied for as a Specialpermit through Town Hall. The special permit willrequire a $30.00 deposit for cleanup.

Sec. 7 14-5. Beach furniture and equipment.

(a) From May 1 until through October 31, allbeach furniture and equipment must be removedfrom the beach as follows:

(1) All beach furniture and equipment must beremoved from the beach between the hoursof 9:00 P.M. until 7:00 A.M.

(2) The beach furniture and equipment must bemoved daily either behind the permanentdune line; or where no dune line is presentand the beach is wide, then 200 feet from themean high water line; or where the beach isnarrow to the adjacent permanent structureand landward of any seawall. Wherecompliance with the foregoing provisionswould cause an undue hardship, the townmanager may, after determining theminimum variance from the requirements ofthis ordinance, designate the storagelocation.

(3) Beach furniture and equipment that isremoved from the beach as specified in 7§ 14-5(a)(2) shall then be safely stacked inareas no larger than 10 feet by 10 feet andeach stack must be at least 50 feet removedor apart from the next stack.

(b) Trash containers are not included in thedefinition of beach furniture and equipment andmay be left in place on the beach between the hoursof 9:00 P.M. and 7:00 A.M.

(c) No later than the first day of June, beachproperties that have more than 5 cabanas or offerbeach equipment for use shall file a hurricaneaction plan with the town each year prior to thebeginning of hurricane season and provide a contactperson with current phone number.

(d) All beach furniture and equipment (such aschairs, umbrellas, cabanas, and rental podium, butexcluding water-dependent equipment) shall be setlandward of the mean high water line and at least10 feet from a sea turtle nest or dune vegetation.

(e) Vendors wishing to use a vehicle to transportfurniture and equipment to and from the beach mustobtain a permit from the town through the permitprocess described in § 14-6(c) and must abide bythe same restrictions. If a beach raking permit isalso applied for, the permits will be incorporated


into one permit. The following additionalrestrictions apply to all transport permits:

(1) Equipment shall not be set out in themorning before 8:00 A.M. or beforecompletion of daily monitoring for turtlenesting activity by a FWC-authorized marineturtle permit holder to examine the beach inthe area of the authorized activity to ensureany new sea turtle nests are identified andmarked, whichever occurs first.

(2) Transporting vehicles shall not travel within10 feet of a sea turtle nest or dunevegetation.

(3) The vehicle and equipment cannot exceed amaximum ground-to-tire pressure of 10 PSI(pounds per square inch) using the formulain § 14-6(c)(4)d.1.

Sec. 8 14-6. Beach raking and wrack line policy.

(a) The use of boxblades on the beach or dune isprohibited. In an emergency and/or storm eventresulting in a build-up of sand against seawalls, theuse of a boxblade may be allowed with the approvalof DEP, where required, and upon filing the thatapproval with the town manager and meeting anyother requirements set by the town.

(b) Under normal circumstances, the raking ofthe wrack line is prohibited. Town approval isnecessary for determination that health or safetyissues have been confirmed that would allow:

(1) A larger than normal wrack line resultingfrom extraordinary circumstances may beraked if the wrack line is at least 10 feetlandward of the normal high tide line.

(2) If health or safety issues are present such as alarge fish kill or a red tide event, the wrackline may be raked up to 10 feet landward ofthe normal high tide line.

(3) If this occurs during sea turtle season (May 1through October 31), the raking must be incompliance with the specific conditions in§ 14-6(c)(4).

(c) Any mechanical beach raking requires apermit from the town:

(1) Application for a permit to mechanicallyrake an unvegetated portion of the beachshall be submitted to the director, in writing,on a form provided by the director. As partof this application, a site plan will besubmitted depicting the property corners, the

dimensions of the area to be raked, and thelocation of existing vegetation andstructures.

(2) Prior to the granting or denying of theapplication, the director will conduct an on-site inspection to determine if the proposedraking conforms to the requirements of thisarticle and if any native vegetation exists tobe protected.

(3) Based upon the information contained in theapplication and the site inspection, thedirector shall approve or deny theapplication.

(4) The director shall attach site specificconditions to the permit relating toidentifying, designating, and protecting thatexisting vegetation and other natural featureswhich are not to be removed in accordancewith this ordinance. These conditions are inaddition to the following standard permitconditions for all mechanical beach rakingpermits:a. During the sea turtle nesting season

(May 1 through October 31), mechanicalbeach raking activities shall be confinedto daylight hours and shall not beginbefore 8:00 A.M. or before completionof daily monitoring for turtle nestingactivity by a FWC-authorized marineturtle permit holder, whichever occursfirst (see requirements in § 14-74(b)).

b. During sea turtle nesting season (May 1through October 31), the permittee isresponsible for ensuring that a daily seaturtle nest survey, protection, andmonitoring program is conductedthroughout the permitted beach rakingarea. Such surveys and associatedconservation measures shall becompleted after sunrise and prior to thecommencement of any mechanical beachraking. The sea turtle survey, protection,and monitoring program shall beconducted only by individualspossessing appropriate expertise in theprotocol being followed and a validF.A.C. Rule 68-E Permit issued by theFWC. To identify those individualsavailable to conduct marine turtlenesting surveys within the permittedarea, please contact the FWC, Bureau ofProtected Species Management, at (561)575-5407.


c. All turtle nests will be marked withwooden stakes, flagging tape, and anFWC sea turtle nest sign. No mechanicalraking equipment is allowed inside of thestaked area. All equipment operatorsshall be briefed on the types of markingutilized and should be able to easilycontact the individual responsible for thenest survey to verify any questionableareas.

d. Mechanical beach raking equipmentshall meet the following standards:1. The vehicle and equipment cannot

exceed a maximum ground-to-tirepressure of 10 PSI (pounds persquare inch) using the followingformula:-a- PSI = vehicle weight in pounds

(includes person and equipment)divided by the footprint insquare inches

-b- EXAMPLE: 404 lbs. (ATVweight) + 200 (person +equipment) divided by 198square inches (ATV with 6" x8.25" footprint x 4 tires) = 3.1PSI

2. Raking shall be accomplished with apronged rake that limits penetrationinto the surface of the beach to amaximum of two inches. Box blades,front- or rear-mounted blades, orother sand sifting/filtering vehiclesare not allowed. A piece of chainlink fence or pressure treated lumbernot to exceed two pieces 4" by 4" by10' in size may be pulled behind therake.

3. The beach raking vehicle andequipment must be removed fromthe beach when not in use.

4. Beach raking equipment shall beinspected periodically by the town toinsure compliance with thesestandards.

5. Operators of mechanical beachraking equipment shall avoid allnative salt-tolerant dune vegetationand staked sea turtle nests by aminimum of 10 feet.

6. Burial or storage of any debris(biotic or abiotic) collected isprohibited seaward of any frontal

dune, vegetation line, or armoringstructure. Removal of allaccumulated material from the beachmust occur immediately after rakinghas been performed in an area. Priorto removing the debris and to thegreatest extent possible, beachcompatible sand should be separatedfrom the debris and kept on site.

7. Mechanical beach raking equipmentmust travel seaward of the meanhigh water line with the rakedisengaged when driving on thebeach from one raking area toanother, and shall not disturb anydune or dune vegetation.

e. A violation of the special or standardconditions shall automatically invalidatethe permit. Periodic complianceinspections will be conducted to insurecompliance with the permit conditionsand this ordinance.

Sec. 9 14-7. Vehicular traffic on the beach.

(a) All engine powered vehicles shall obtain aDEP prior to driving a vehicle on the beach. TheDEP permits must specify that the tries create amaximum pressure of ten (10) p.s.i. where the tiremakes contact with the sand.

It is unlawful and prohibited to operate anyengine-powered vehicle, machine, or implement,including any electrical powered vehicle, machine,or implement, on the beach, dune, or on sea turtlenesting habitat as defined in § 14-72, except for thefollowing:

(1) Research or patrol vehicles, only forauthorized permittees of the FWC, DEPofficials, law or code enforcement officers,EMS and firefighters, scientific monitoring,and town-approved service vehicles.

(2) Mechanical beach raking. Vehiclesoperating under permits issued pursuant to§ 14-6(c).

(3) Beach furniture and equipment transport.Vehicles operating under permits issuedpursuant to § 14-5(e).

(4) Jet-ski transport and storage. Jet-skitransport and storage, when in accordancewith § 27-49(1) and (9) even for jet-skis thatare not available for rental in accordancewith ch. 27.


(5) Wheelchairs. A wheelchair, or otherconveyance with prior approval from thetown, for a person with a disability, which isactually being used by the person with adisability). (b) Handicap access to the beachis encouraged through use of wheelchairsequipped with special beach friendly tiresthat are available for rent or purchase.

(6) Maximum tire pressure. Any vehicleauthorized to drive on the beach cannotexceed a ground-to-tire pressure of 10 PSI ascomputed in accordance with§ 14-4(c)(4)d.1, except for wheelchairspermitted in accordance with subsection (4)above.

(7) Sea turtle nesting season. See § 14-78(b) foradditional restrictions during the sea turtlenesting season.

Sec. 10 14-8. Dune systems.

Consistent with the town comprehensive planobjective 5-D for beaches and dunes, “Conserveand enhance the shoreline of Estero Island byincreasing the amount of dunes, renourishingbeaches to counter natural erosion, and reducingnegative man-made impacts on beaches and dunes,”the town adopts the following:

(1) (a) In areas where the beach has experiencederosion, on public land or with the consent ofthe owner, the town will establish a dunesystem consisting of sea oat plantings, aminimum of 10 feet wide, to be plantedadjacent to the existing upland vegetationline, and to be planted at existing elevations.

(2) (b) In areas that have not experiencederosion, the town will encourage theestablishment of a dune system but will notrequire same.

Sec. 14-9. Enforcement.

(a) The director is authorized to pursue any oneor combination of the enforcement mechanismsprovided in this code (for example, § 1-5, or articleV of ch. 2) for any violation of this article.

(b) When imposing a sentence or penalty, thecourt, hearing examiner, or any other appropriatebody may, in mitigation, consider the successfulreplacement of dune vegetation illegally removed,and the restoration of the subject area when deemedby the court, the hearing examiner, or any other

appropriate body that the action taken by theviolator has eliminated or significantly decreasedthe ability of the dune system to recover or performthose functions for which it is being protected.

Sec. 14-10. Restoration standards for dunevegetation alteration violations.

(a) Upon agreement of the director and theviolator, or if they cannot agree, then, upon actionby the court or hearing examiner, a restoration planshall be ordered using the standards in this section.Such a restoration plan shall set forth replacementof the same species or any species approved byconsent of the before-mentioned parties, or, ifappropriate, in accordance with the direction of thecourt or hearing examiner.

(b) The restoration plan shall include thefollowing minimum standards:

(1) Restoration plantings for vegetation otherthan trees must be nursery grown,containerized, and planted at a minimumdensity of no less than one and one half feeton center. The number of replacementplantings will be computed by the squarefootage of the area destroyed. Thereplacement stock shall be one and two inchsize container. Higher density plantings maybe required at the discretion of the directorbased upon density and size of the vegetationon the site prior to the violation. If thedensity or species of the vegetation cannot bedetermined where the violation occurred,then an assumption shall be made that thedensity and the species were the same as onsimilar properties. It shall be within thediscretion of the director to allow a deviationfrom the above specified ratio. When suchdeviation is sought, the total size shall equalor exceed that specified in the abovestandards.

(2) Dune vegetation alteration violations due toraking, excavation, and/or clearing shall berestored to natural ground elevation and soilconditions prior to commencement ofreplanting.

(3) Replacement plantings shall have aguaranteed minimum of 80 percentsurvivability for a period of no less than fiveyears; however, success will be evaluated onan annual basis.


(4) Only temporary above ground irrigation maybe installed and must be removed no laterthan one year from the date of planting.

(5) The plan shall specify that within 90 days ofcompletion of the restoration, a writtenreport shall be submitted to the town. Thisreport shall include the date of completion,copies of the nursery receipts, a drawingshowing the locations of the plantings, andcolor photographs of the planting areas fromfixed reference points.

(6) The restoration plan shall include amaintenance provision of no less than fiveyears for the control of invasive exoticvegetation, with annual monitoring andmaintenance of the restored area to includethe following:a. Removal of all exotic and nuisance

vegetation in the area without disturbingthe existing dune vegetation.

b. Replacement of dead vegetation that wasplanted in order to assure at least 90percent coverage at the end of thefive-year period. Replacement vegetationshall be nursery grown and of the samespecies and at least the same size asthose originally planted.

c. Submittal of an annual monitoring reportto the director for five years followingthe completion of the restorationdescribing the conditions of the restoredsite. The monitoring report shall includemortality estimates, causes for mortality(if known), growth, invasive exoticvegetation control measures taken, andany other factors which would indicatethe functional health of the restored area.

d. The monitoring report shall be submittedon or before each anniversary date of theeffective date of the restoration plan.Failure to submit the report in a timelymanner shall constitute a violation of thisordinance.

e. To verify the success of the mitigationefforts and the accuracy of themonitoring reports, the director shallperiodically inspect the restoration.

Sec. 14-11. Special events on the beach.

(a) Special events on the beach are any social,commercial, or fraternal gathering for the purposeof being entertained, instructed, viewing a

competition, or any other reason that would bringthem together in one location that normally wouldnot include such a concentration of people on ornear the beach.

(b) Special events on the beach are temporary,short-term activities, which may include theconstruction of temporary structures; temporaryexcavation, operation, transportation, or storage ofequipment or materials; and/or nighttime lightingthat is visible seaward of the coastal constructioncontrol line (CCCL). Generally, activities withinthis category include but are not limited to: sportingevents (e.g. volleyball, personal watercraft races,offshore powerboat races), festivals, competitions,organized parties (e.g. weddings), promotionalactivities, concerts, film events, balloon releases,and gatherings under tents.

(c) Due to the potential for adverse impacts,certain special event activities may not becompatible with sea turtle nesting areas. In somecases this is due to the type of activity where permitconditions alone cannot provide adequateprotection. In other cases the density of sea turtlenesting prevents certain activities from beingconducted safely.

(d) Special events which occur on or near thebeach or dune, or where lighting from the specialevents directly or indirectly illuminates sea turtlenesting habitat, may contain special conditions forthe protection of the beach, dune, and sea turtles.These conditions are in addition to the basicrequirements of Ordinance No. 98-1, as amended,which must still be met in full.

(1) Along with the regular application for anevent permit as required by Ordinance No.98-1 as amended, a site plan must besubmitted depicting the property corners andthe dimensions of the area where the event isproposed to occur, the location of existingvegetation, structures, and any existing seaturtle nests, and a summary of the activitiesproposed. A lighting plan that includes thelocation, number, type, wattage, orientation,and shielding for all proposed artificial lightsources that will be used must also besubmitted. All lighting must be incompliance with § 14-75.

(2) Prior to the granting or denying of theapplication, an on-site inspection will beconducted to determine if the proposed event


conforms to the requirements of this sectionand if any native vegetation or sea turtlenests exist to be protected.

(3) Based upon the information contained in theapplication and the site inspection, theapplication shall be approved or denied.approve or deny the application.

(4) Site-specific conditions may be attached tothe permit relating to identifying,designating, and protecting any existingvegetation and sea turtle nests in accordancewith this code. These conditions are inaddition to the following standard permitconditions for all special events on thebeach:a. During the sea turtle season (May 1

through October 31), special eventactivities including construction shall beconfined to daylight hours and shall notbegin before 8:00 A.M. or beforecompletion of daily monitoring for turtlenesting activity by a FWC-authorizedmarine turtle permit holder, whicheveroccurs first. However, no activity shalltake place until after a daily sea turtlenest survey is conducted as indicatedbelow.

b. During sea turtle nesting season (May 1through October 31), the permittee isresponsible for ensuring that a daily seaturtle nest survey, protection, andmonitoring program is conductedthroughout the permitted special eventsarea. Such surveys and associatedconservation measures shall becompleted after sunrise and prior to thecommencement of any activity. The seaturtle survey, protection, and monitoringprogram shall be conducted only byindividuals possessing appropriateexpertise in the protocol being followedand a valid F.A.C. Rule 68-E permitissued by the FWC. To identify thoseindividuals available to conduct marineturtle nesting surveys within thepermitted area, please contact the FWC,Bureau of Protected SpeciesManagement, at (561) 575-5407.

c. All turtle nests will be marked withwooden stakes, flagging tape, and anFWC sea turtle nest sign. No activities(including the placement of equipmentor the storage of materials) are allowed

within 30 feet of the marked nest. Thepermittee shall ensure that all personnelare briefed on the types of markingutilized and be able to easily contact theindividual responsible for the nest surveyto verify any questionable areas.

(5) A violation of the special or standardconditions shall automatically invalidate thepermit. Periodic compliance inspections willbe conducted to insure compliance with thepermit conditions and this ordinance.

(6) The release of balloons is prohibited inaccordance with 372.995, F.S., except aspermitted by that statute.

Secs. 14-12--14-7040. Reserved.


ARTICLE II. WILDLIFE ANDHABITAT PROTECTION

SEA TURTLE CONSERVATION

DIVISION 1. GENERALLY

Secs. 14-41--14-70. Reserved.

DIVISION 2. SEA TURTLES

Sec. 14-71. Purpose and applicability of division.

The purpose of this article division is to protectendangered and threatened sea turtles along theGulf of Mexico beaches in the Town of Fort MyersBeach. This article division protects nesting seaturtles and sea turtle hatchlings from the adverseeffects of artificial lighting, provides overallimprovement in nesting habitat degraded by light,and increases successful nesting activity andproduction of hatchlings on the beaches, as definedin this article division.

Sec. 14-72. Definitions.

When used in this article division, the followingwords, terms and phrases shall have the meaningsascribed to them in this section, except where thecontext clearly indicates a different meaning:

Administrator [deleted]

Artificial lighting or illumination means lightemanating from a manmade point source (see Pointsource of light, below).

Beach means that area of unconsolidatedmaterial sand along the Gulf of Mexico that extendslandward from the mean low-water line to the placewhere there is a marked change in material orphysiographic form, or to the line of permanentvegetation, usually the effective limit of stormwaves, as more particularly described in appendixB.

Bug type light means any yellow coloredincandescent light bulb that is specifically treated insuch a way so as to reduce the attraction of bugs tothe light, but does not include bug killing devices.

Construction means the carrying out of anybuilding, clearing, filling, excavating or substantial

improvement in the size or use of any structure orthe appearance of any land. When appropriate tothe context, the term “construction” refers to the actof constructing or the result of construction, andincludes reconstruction or remodeling of existingbuildings or structures.

Decorative lighting means lighting used foraesthetic reasons, primarily landscaping.

DEP means Florida Department ofEnvironmental Protection or successor agency.

Directly illuminated means illuminated by one ormore point sources of light directly visible to anobserver on the beach, dune, or other sea turtlenesting habitat.

Development has the same meaning stated in§34-2.

Dune means a mound or ridge of loosesediments, usually sand-sized, lying landward ofthe beach and deposited by any natural or artificialmechanism.

Existing development means completeddevelopment having received official approval inthe form of a certificate of compliance, finalbuilding permit inspection, or other finalgovernmental approval as of January 31, 1998, ordevelopment that was completed prior to theadoption of those requirements.

FWC means the Florida Fish & WildlifeConservation Commission or its successor.

Ground-level barrier means any vegetation,natural feature or artificial structure rising from theground intended to prevent beachfront lightingfrom shining directly or indirectly onto the beach,dune, or other sea turtle nesting habitat.

Hatchling means any of a individual of a speciesof sea turtle, within or outside of a nest, that hasrecently hatched from an egg.

Indirectly illuminated means illuminated by oneor more point sources of light not directly visible toan observer on the beach, dune, or other sea turtlenesting habitat.


Low-profile lighting means a light fixture whichplaces the low wattage source of light no higherthan 48 inches above grade and is designed so that apoint source of light does not directly or indirectlyilluminate sea turtle nesting habitat.

Mechanical beach cleaning means the act ofcleaning the beach with a motor-powered vehicleand beach cleaning equipment that does notpenetrate deeper than two inches into the surface ofthe beach, or what may be approved by the DEPfollowing a storm.

Mechanical beach raking means the cleaning ofthe sandy beach seaward of the dune and vegetationline of trash and other debris on or near the surfaceby use of a rake or other similar porous devicewhich penetrates no more than 2 inches belowexisting ambient grade and results in no removal ofin situ sand.

Nest means an area where sea turtle eggs havebeen naturally deposited or subsequently relocatedby an FWC-authorized marine turtle permit holder.permittee of the DEP.

Nesting season means from 9:00 P.M. until 7:00A.M. during the period May 1 through October 31 ofeach year.

New development means construction of newbuildings or structures as well as renovation orremodeling of existing development, and includesthe alteration of exterior lighting occurring afterJanuary 31, 1998.

Point source of light means a manmade sourceemanating light, including but not limited to:incandescent, tungsten-iodine (quartz), mercuryvapor, fluorescent, metal halide, neon, halogen,high-pressure sodium and low-pressure sodiumlight sources, as well as torches, camp and bonfires.

Sea turtle means any marine-dwelling reptile ofthe families Cheloniidae or Dermochelyidae foundin Florida waters or using the beach as nestinghabitat, including Caretta caretta (loggerhead),Chelonia mydas (green), and Dermochelys coriacea(leatherback), Eretmochelys imbricata (hawksbill),and Lepidochelys kempi (Kemp’s ridley). Forpurposes of this article division, sea turtle issynonymous with marine turtle.

Sea turtle nesting habitat means the beach, andany adjacent dunes or areas landward of the beachused by sea turtles to deposit sea turtle eggs.

Tinted glass means any glass treated to achievean industry-approved, inside-to-outside lighttransmittance value of 45% or less.

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

Sec. 14-73. Enforcement of division; penalty.

(a) The director is authorized to pursue any oneor combination of the enforcement mechanismsprovided in this code (for example, § 1-5, or articleV of ch. 2) for any violation of this article.

(b) (a) Violations. (1) Failing in any respect tocomply with the provisions of this division. (2) Arebuttable presumption that there is a violation ofthis article division exists when:

(1) a. a shadow is created or cast by artificiallighting directly or indirectly illuminating anopaque object in sea turtle nesting habitatduring the nesting season; or

(2) b. the disorientation or mortality of a nestingsea turtle or sea turtle hatchling is caused byartificial lighting directly or indirectlyilluminating sea turtle nesting habitat duringthe nesting season.

(b) Enforcement and penalty. Violations of thisdivision will be prosecuted in accordance with ch.2, article VII. The Town of Fort Myers Beach maytake action against the property owner, occupant, orperson otherwise responsible for causing theviolation. In addition to code enforcement action,the town may pursue other legal means of obtainingcompliance, including civil and criminal remedies,that are available by law.

Sec. 14-74. Exemptions from division.[subsections (a), (b), and (c) moved to § 14-78(b)]

(d) Administrative exemptions. The townmanager may authorize, in writing, any activity oruse of lighting otherwise prohibited by this articledivision for a specified location and period of time.The authorization must be for the minimumduration and amount of lighting from a pointsource(s) of light.


Sec. 14-75. Existing development.

Existing development must ensure that sea turtlenesting habitat is not directly or indirectlyilluminated by lighting originating from theexisting development during the nesting season.Artificial lighting from existing development mustnot directly or indirectly illuminate sea turtlenesting habitat during the nesting season.

Sec. 14-76. New development.

New development must comply with thefollowing requirements:

(a) Artificial lighting must conform to therequirement of § 14-75.

(b) A lighting plan must be submitted for reviewprior to the earlier of building permit ordevelopment order issuance for all newdevelopment, as follows:

(1) for new development seaward of the coastalconstruction control line, as defined in§ 6-333 (CCCL), a copy of a DEP-approvedlighting plan is required;

(2) for new development landward of the CCCL,a lighting plan is required for all commercialand industrial development, and for all multi-story developments in multi-family zoningdistricts.

The location, number, wattage, elevation,orientation, and all types of proposed exteriorartificial light sources must be included on thelighting plan. An approved lighting plan is requiredbefore final inspections for a certificate ofoccupancy or certificate of compliance will beperformed by the town. and

(c) Prior to the issuance of a certificate ofoccupancy (CO), the exterior lighting of newdevelopment must be inspected after dark by thetown, with all exterior lighting turned on, todetermine compliance with an approved lightingplan and this article division.

Sec. 14-77. Publicly owned lighting.

Streetlights and lighting at parks and otherpublicly owned beach access areas are subject tothe following requirements:

(1) (a) The beach must not be directly orindirectly illuminated by newly installed orreplaced point sources of light.

(2) (b) Artificial lighting at parks or other publicbeach access points must conform to theprovisions of § 14-75.

Sec. 14-78. Additional regulations affecting seaturtle nesting habitat.

(a) Fires. Fires that directly or indirectlyilluminate sea turtle nesting habitat are prohibitedduring the nesting season.

(b) Driving on the beach. Driving on sea turtlenesting habitat, specifically including the beach, isprohibited during the nesting season, except asfollows: allowed under § 14-74(a).[subsections (1), (2), and (3) moved from § 14-74]

(1) (a) Research or patrol vehicles. Onlyauthorized permittees of the FWC, DEPofficials, and law or code enforcementofficers conducting bona fide research orinvestigative patrols, may operate a motorvehicle on the beach or in sea turtle nestinghabitat during the nesting season,. No lightsmay be used on these vehicle during thenesting season unless they are covered by solong as appropriate red-colored filters areused to ensure no more artificial lightingthan that necessary for the safe operation oftheir vehicles is visible.

(2) (b) Mechanical beach cleaning raking. All mechanical beach raking requires a townpermit in accordance with § 14-6(c). Duringthe nesting season, mechanical beachcleaning raking:a. must not occur before 10:00 8:00 A.M. or

before completion of daily monitoringfor turtle nesting activity by aFWC-authorized marine turtle permitholder, whichever occurs first, and

b. must not disturb any sea turtle or seaturtle nest and must avoid all staked seaturtle nests by a minimum of 10 feet.


(3) Beach furniture and equipment transport.The transport of beach furniture andequipment requires a town permit inaccordance with § 14-5(e). During thenesting season:a. Equipment shall not be set out in the

morning until after sea turtle monitoringhas inspected the beach in the area of theauthorized activity to ensure any new seaturtle nests are identified and marked.

b. Transporting vehicles shall not travelwithin 10 feet of a sea turtle nest or dunevegetation.

(4) (c) Jet-ski transport. During the nestingseason, jet-ski transport and storage:a. must be in compliance with § 27-49(1)

and (9) of this code even for jet-skis thatare not available for rental in accordancewith ch. 27, and

b. may requires a valid DEP permitauthorizing jet-ski transport within theriparian line of the licensed property tothe water, and

c. must not occur before 10:00 8:00 A.M. orbefore completion of daily monitoringfor turtle nesting activity by aFWC-authorized marine turtle permitholder, whichever occurs first, and

d. must not disturb any sea turtle or seaturtle nest and must avoid all staked seaturtle next by a minimum of 10 feet.

(5) See §§ 14-5–7 and 27-49 for otherrestrictions on vehicular traffic on the beachthat apply before and after the nestingseason.

(c) Parking. Vehicle headlights in parking lots orareas on or adjacent to the beach must be screenedutilizing ground-level barriers to eliminate artificiallighting directly or indirectly illuminating sea turtlenesting habitat.

Sec. 14-79. Guidelines for mitigation andabatement of prohibited artificial lighting.

(a) Appropriate techniques to achieve lightingcompliance include, but are not limited to:

(1) fitting lights with hoods or shields,(2) utilizing recessed fixtures with low-wattage

bulbs,(3) screening light with vegetation or other

ground-level barriers,

(4) directing light away from sea turtle nestinghabitat,

(5) utilizing low-profile lighting,(6) turning off artificial light during the nesting

season,(7) motion detectors set on the minimum

duration, and(8) lowering the light intensity of the lamps,

preferably to 25 watts, but no more than 40-watt yellow bug lights.

Although plastic sleeves for fluorescent bulbs mayhelp to reduce the amount of artificial light to anacceptable level if the bulbs are of sufficiently lowwattage, in most instances additional shielding isneeded as sea turtles are more sensitive to thewavelengths of fluorescent light.

(b) Opaque shields for lights covering an arc ofat least 180 degrees and extending an appropriatedistance below the bottom edge of the fixture on itsseaward side may be installed so that the lightsource or any reflective surface of the light fixtureis not visible from sea turtle nesting habitat.

(c) Floodlights, uplights, spotlights, anddecorative lighting directly or indirectly visiblefrom sea turtle nesting habitat should not be usedduring the nesting season. The ideal alternativeswithin direct line-of-sight of the beach arecompletely shielded downlight-only fixtures orrecessed fixtures, with any visible interior surfacesor baffles covered with a matt black non-reflectivefinish.

(d) Appropriate techniques to eliminate interiorlighting directly or indirectly illuminating thebeach, include but are not limited to: applyingwindow tint film to windows, using tinted glass,moving light fixtures away from windows, closingblinds or curtains, and turning off unnecessarylights.

Secs. 14-80--14-110. Reserved.


ARTICLE III. SOUTHERNBALD EAGLE PROTECTION3

WELLFIELD PROTECTION[existing article III on wellfield protection

deleted in its entirety]

DIVISION 3. SOUTHERN BALD EAGLE

Sec. 14-111. Purpose of division.

In order to protect and preserve the southern baldeagle, it is necessary and appropriate to protect,enhance, and preserve the nest of the eagle and itsimmediate environs. With reasonable landcompensation incentives and proper habitatmanagement, the southern bald eagle population inthe county can be maintained and increased. Thisarticle division is intended to protect the criticalnesting habitat of the southern bald eagle andpromote national, state, and county pride andesteem by providing special compensationincentives to private property owners for loss ofproperty committed to critical southern bald eaglenesting habitat. This article division is also intendedto provides information and assistance to propertyowners to enable them to avoid violations of stateand federal law. The landowner has the opportunityto choose one of several options. One can do aneagle management plan which should assistsignificantly in the state and federal permittingprocess; one can bypass this division and dealdirectly with the state and federal governments; orone can do nothing and take the chance of being inviolation of state and federal law.


The following words, terms and phrases, whenused in this article division, shall have the meaningsascribed to them in this section, except where thecontext clearly indicates a different meaning:

Abandoned nest means a nest which has not beenoccupied by the southern bald eagle for thehatching and nurturing of eagle young for a periodof four consecutive years or has been determined tobe abandoned by the eagle technical advisorycommittee.

Buffer area means that area designated by theboard of county commissioners in accordance with§ 14-119 that must remain predominantly in itsnatural state to protect eagles, nest trees, or othercritical eagle nesting habitat. Buffer areas mayrange in any distance up to 750 feet or more from anest and may be irregularly shaped areas.

Conservation easement means a right or interestin real property which is appropriate to retainingland or water areas predominantly in their natural,scenic, open, or wooded condition; retaining suchareas as suitable habitat for fish, plants, or wildlife;or maintaining existing land uses and whichprohibits or limits any or all of the activitiesdescribed in F.S. § 704.06, as such provisions nowexist or may from time to time be amended.

Critical eagle nesting habitat means habitatwhich, if lost, would result in the elimination ofnesting eagles from the area in question. Criticaleagle nesting habitat typically provides functionsfor the southern bald eagle during the nestingportion of that species’ life cycle. This areaincludes eagle nest trees and their immediateenvirons and may include other areas or featuressuch as perch trees, flyways, and secondary nests.

Developer means any person undertakingdevelopment.

Development means any improvement or changeof the land induced by human activities.

FWC FGFWFC means the Florida Game andFresh Water Fish & Wildlife ConservationCommission or its successor.

Land means the earth, water and air above,below or on the surface.

Nest means a structural mass of sticks, twigs,leaves, mosses or other materials which is beingoccupied or has been occupied by the southern baldeagle for the hatching and nurturing of eagle young.

Nesting period [deleted]

Parcel, for purposes of this article division only,means one or more contiguous lots under unifiedcontrol.

3Cross reference(s)--Protection of habitat, § 10-471 et seq.


Property owner means any person havingrecorded legal title to real property.

Southern bald eagle (Haliaeetus leucocephalus),as per the federal and state threatened species list,means a mature eagle with white plumage on itshead and tail feathers, or an immature eagle withdark plumage, which resides throughout the statearound estuarine areas and along the lakes and riverdrainage basins within the interior of the state andcounty.

Unified control means the unrestricted right ofany owner or agent to enforce whatever conditionsare placed on the use and development of a parcelof land through the provisions of this articledivision, by binding his heirs, assigns, or othersuccessors in title with covenants or restrictions onthe development and subsequent use of property.


Sec. 14-113. Violation of division; penalty.

(a) The director is authorized to pursue any oneor combination of the enforcement mechanismsprovided in this code (for example, § 1-5, or articleV of ch. 2) for any violation of this article. Anyperson convicted of violation of any of theprovisions of this division may be punished asprovided in § 1-5. Such person will also beresponsible for costs and expenses involved in thecase. Each day such violation continues will beconsidered a separate offense.

(b) Any violator of this article division may berequired to restore the critical eagle nesting habitatto its original undisturbed condition. If restorationis not undertaken within a reasonable time afternotice, the town county may take necessarycorrective action, the cost of which will be placedas a lien upon the property.

(c) In addition, any violation of this division is apublic nuisance and may be restrained by injunctionby any interested party.

Sec. 14-114. Provisions of division supplemental.

(a) This article division does not replace theFederal Endangered Species Act, the FederalMigratory Bird Act, the Federal Bald Eagle Act or

the Florida Endangered Species Act, but is intendedto supplement those laws to ensure protection ofcritical eagle nesting habitat.

(b) The town urges all landowners conductingdevelopment activities to adhere to the “HabitatManagement Guidelines for the Bald Eagle in theSouthern Region,” prepared by the U.S. Fish andWildlife Service, which recommends a primaryprotection zone with a radius of 750 to 1500 feetaround active nests within which no developmentshould occur.

Sec. 14-115. Applicability of division.

This division will apply unless, prior tocommencement of development which is subject toconditions imposed under this division, whereapplicable, the property owner elects, in writing,not to participate. This article division applies onlyto all real property within 750 feet of a nest untilsuch time as unless the nest has been determined tobe abandoned. Abandonment will be determined bythe eagle technical advisory committee based oncompetent evidence but in no event will be morethan four years.

Sec. 14-116. Eagle technical advisory committee.

(a) Lee County has established an The countyeagle technical advisory committee (ETAC) willconsist of five residents of the county appointed bythe board of county commissioners for the purposeof advising the board of county commissioners onmatters relating to the protection of the southernbald eagle. The Town of Fort Myers Beach shallconsult this committee for advice andrecommendations in the event a southern bald eaglebegins to nest within its incorporated area. Eacheagle technical advisory committee member shouldhave extensive technical or practical knowledge ofthe southern bald eagle biology and must bequalified by either training or experience to renderadvice regarding the protection of critical southernbald eagle nesting habitat.

(b) The term of office for a member of the eagletechnical advisory committee will be two years;however, so as to provide for staggered terms, twomembers will be appointed initially to one-yearterms, and the remaining three members to two-year terms.


(c) The eagle technical advisory committee willreview all pertinent or current eagle technicaldocuments and provide expert advice to the boardof county commissioners, the department ofcommunity development and the general public.

(d) The eagle technical advisory committee willreview management plans and makerecommendations to the board of countycommissioners in accordance with § 14-119.

(e) The county department of communitydevelopment, division of natural resourcesmanagement, with assistance from the countyattorney’s office will serve as support staff to theeagle technical advisory committee.

(f) The eagle technical advisory committee willdetermine occupancy of southern bald eagle nestsnot included on FGFWFC’s annual southern baldeagle nesting survey.

(g) The eagle technical advisory committee, withassistance of appropriate staff, will maintain andupdate as necessary a list or map of occupiedsouthern bald eagle nests and will monitor nest siteson a regular basis, with the permission of theproperty owner, if required.

Sec. 14-117. Public acquisition of rights andinterest in critical eagle nesting habitat lands.

(a) The town county may acquire rights andinterests in real property designated as a criticaleagle nesting habitat. When a developer or propertyowner cannot accommodate critical eagle nestinghabitat through reasonable site planning or properaccess, the town county may acquire an interestthrough:

(1) Receiving donations of critical eagle nestinghabitat lands;

(2) Purchase or conveyance by dedication of aperpetual conservation easement;

(3) Outright purchase or lease of critical eaglenesting habitat;

(4) Acquisition through eminent domainproceedings pursuant to article II, § 9, andarticle X, § 6, of the state constitution andapplicable provisions of the Florida Statutes;or

(5) Implementation by the town council or theboard of county commissioners of anycombination of these or other actions to

acquire rights and interests that balance thepublic and private interests.

(b) Monies needed for the purchase of criticaleagle nesting habitat, or the purchase ofconservation easements to protect these habitats,may be funded by public and private donations.Funding may also be solicited in a generalcommunity appeal on license tag renewals and advalorem tax envelopes issued by the county taxcollector, and by monies appropriated from thegeneral fund by the town council or the board ofcounty commissioners from time to time. All fundsreceived and the earnings from such funds will beescrowed in a special account for use in theacquisition of critical eagle nesting habitat or thepurchase of conservation easements.

Sec. 14-118. Notification procedure.

Lee County The town will notify the FWCFGFWFC and the U.S. Fish and Wildlife Serviceupon receipt of any application for a planneddevelopment rezoning, a development order, anotice of clearing, or a building permit for anyproperty located within 750 feet of a bald eaglenest. The notice must include any availableinformation gathered by the eagle technicaladvisory committee regarding the behavior of theeagles who are occupying the nest.

Sec. 14-119. Mechanisms for the protection ofcritical eagle nesting habitat.

(a) Single- or two-family dwelling unit(including accessory structures.) Appropriateconditions limiting or prohibiting developmentduring the nesting season may be attached tobuilding permit approvals for property to which thisarticle division is applicable where such conditionsare deemed necessary by the director of thedepartment of community development (ordesignee) to prevent a “take” of the eagle, as thatterm is defined in FAC rule 39-1.004(77).

(b) Agricultural activities. All persons intendingto conduct agricultural activities on property towhich this division is applicable are encouraged toconsult with the eagle technical advisory committeeprior to submittal of an application for a notice ofclearing or the commencement of clearingactivities.


(b) (c) All other development.(1) All persons contemplating the development

of property to which this article division isapplicable are encouraged to consult with thecounty’s eagle technical advisory committeeand its supporting staff the division ofnatural resources management as early in theplanning and design process as possible.

(2) With assistance from the eagle technicaladvisory committee, all such persons areencouraged to prepare a management planthat protects critical eagle nesting habitat. Allsuch management plans will be reviewed byLee County staff and the eagle technicaladvisory committee prior to approval byresolution of the town council board ofcounty commissioners.

(3) All development within critical eagle nestinghabitat and buffer areas must be consistentwith the approved management plan.

(4) Management plans must address, at aminimum, the following items:a. Description of the land around the

critical eagle nesting habitat, includinglocations of nest tree(s) and perchtree(s), vegetation types, and adescription of the type and density ofunderstory and canopy vegetation;

b. History and behavior patterns of theeagle pair;

c. A one inch equals 200 feet aerial mapand a map at the scale of thedevelopment which shows the locationof the eagle’s nest and other criticaleagle nesting habitat features as well asthe proposed development;

d. The size and shape of the buffer area;e. Measures to reduce potential adverse

impacts of the development on thenesting bald eagles;

f. A critical eagle nesting habitatmanagement plan which shall includetechniques to maintain viable nestinghabitat. These techniques may includecontrolled burning, planting, or removalof vegetation, invasive exotic speciescontrol, maintaining hydrologic regimes,and monitoring;

g. Deed restrictions, protective covenants,easements, or other legal mechanismsrunning with the land that providereasonable assurances that the approvedmanagement plan will be implemented

and followed by all subsequent ownersof the property in question;

h. A commitment to educate future owners,tenants, or other users of thedevelopment about the specificrequirements of the approved eaglemanagement plan and the state andfederal eagle protection laws.

(5) The legal effect of management plans will belimited geographically to property owned orcontrolled by the proponent of the plan.

(6) The eagle technical advisory committee willconsider the guidelines promulgated byFGFWFC and the U.S. Fish and WildlifeService in the review of management plansand may request technical assistance fromthe FGFWFC or the U.S. Fish and WildlifeService whenever necessary.

(7) An approved management plan will remaineffective notwithstanding the abandonmentof a nest unless the abandonment occursprior to the use of any incentives (see§ 14-120 below) and the property ownerrelinquishes the incentives by amending thedevelopment order or taking otherappropriate action.

Sec. 14-120. Compensation incentives forprotection of critical eagle nesting habitat.

(a) Incentives for the preservation of criticaleagle nesting habitat pursuant to approvedmanagement plans will be granted in accordancewith the standards in § 10-474(e). provided,however, that nothing in this section shall beconstrued to impair the value of incentives thatwere previously approved by the board of countycommissioners pursuant to Ordinance No. 86-15.

(b) In addition to the incentives already providedherein, in the event that the board of countycommissioners if the town council elects not toacquire a critical eagle nesting habitat, then thetown council board may permit all or some of thefollowing special compensation benefits asincentives to the developer or property owner forthe purpose of protecting critical eagle nestinghabitat:

(1) For a buffer area of 350 feet in radius or anapproximate equivalent acreage, minimum,the following benefits shall be granted:a. The property owner shall be allowed to

transfer density from within the buffer


area to designated upland areas withinthe subject property at the same densitypermitted for that portion of the subjectproperty as determined through theresidential planned development process.For a buffer area composed of a resourceprotection area or transition zone, orportion thereof, the following internaltransfer of density shall apply:1. Resource protection area: One

development right per ten acres;2. Transition zone: One development

right per five acres; andb. The property owner shall be allowed

priority review and processing of zoningand development applications for thesubject property, and, if applicable, oneother parcel under unified control.

(2) For a buffer area of 550 feet in radius or anapproximate equivalent acreage, thefollowing benefits, in addition to those setforth in subsection (1) of this section, mayshall be granted:a. The town may county shall waive the

zoning application fee on the subjectproperty, and, if applicable, one otherparcel under unified control;

b. The town may county shall waivebuilding permit application fees on thesubject property, and, if applicable, oneother parcel under unified control; and

c. The town may county shall waivedevelopment review related fees on thesubject property, and, if applicable, oneother parcel under unified control.

(3) For a buffer area of 750 feet in radius, or anapproximate equivalent acreage, thefollowing benefits, in addition to those setforth in subsections (1) and (2) of thissection, may shall be granted: The town maycounty shall provide a credit against regionalpark impact fees on the subject property,and, if applicable, one other parcel underunified control located within the town sameregional park impact fee district. In no eventshall the credit towards the regional parkimpact fee exceed the appraised value of thededicated land.

(4) In order to receive the benefits mentioned inthis section, the buffer areas shall bedesignated as critical eagle nesting habitatand shall be conveyed to the town county by

either warranty deed or by dedication of aperpetual conservation easement.

(5) The increase in buffer area beyond theminimum radius is directly proportional toadditional incentive benefits which may berequested and may be received by thedeveloper or property owner pursuant to theterms of this article division.

(6) In no event shall the amount of fees waivedor credited set forth in subsections (2) and(3) of this section exceed twice the appraisedvalue of the buffer area conveyed to thecounty. The appraised value shall be basedon two current documented appraisals of thefair market value or sales price of the land.Appraisals must be prepared by qualifiedappraisers and are subject to approval by thetown manager county administrator.

Secs. 14-121--14-290. 150. Reserved.

DIVISION 4. MANATEE PROTECTION;CALOOSAHATCHEE RIVER SYSTEM*

[deleted in its entirety]


ARTICLE IV.WETLANDS PROTECTION

Secs. 14-291–14-370.[existing article IV deleted in its entirety]

Sec. 14-291. Applicability.

(a) The provisions of this article apply to allwetlands within the incorporated area of the town.A close approximation of wetland boundaries isshown on the future land use map (Figure 16 of theFort Myers Beach comprehensive plan). However,even where not shown on that map, this articleapplies to all wetlands as defined in F.S. § 373.019as interpreted through the use of the unifieddelineation methodology ratified by F.S.§373.4211.

(b) If the delineation of wetlands on the futureland use map is incorrect due to a clear factualerror, a process is contained in ch. 15 of thecomprehensive plan to establish the precise bound-ary of any wetland within the town.

Sec. 14-292. Purpose.

(a) Wetlands provide valuable habitat, bufferingfrom storms, shoreline stabilization, and productionof food for estuarine and coastal waters. The town’sobjectives are to preserve all remaining wetlands,protect them from further degradation, and improvetheir condition and natural functions.


Director means the person to whom the townmanager has delegated the authority to administerthis article, or that person’s designee.

ERP means an Environmental Resource Permit.

SFWMD means the South Florida WaterManagement District.

Wetlands means those areas inundated orsaturated by surface water or groundwater at afrequency and a duration sufficient to support, andunder normal circumstances do support, aprevalence of vegetation typically adapted for lifein saturated soils. Examples of wetlands at FortMyers Beach include mangroves forests, tidal

marshes, and salt flats. See full definition inF.S. § 373.019.

Sec. 14-294. Prohibited activities.

Activities that destroy wetlands or impair thefunctioning of wetlands such as the following areprohibited:

(1) Construction fill that encroaches along theedges of, or into, wetlands, canals, or othertidal waters;

(2) Dredging of new or expanded boat basins orchannels;

(3) Placement of seawalls or riprap revetmentsexcept as specifically authorized by ch. 26;

(4) Ditching or filling of wetlands for mosquitocontrol purposes; and

(5) Any filling or removal of mangrove systems.

Sec. 14-295. Permitted activities.

The following types of activities may bedesirable in wetlands and may be permitted by thedirector when compatible with wetland functionsand approved in accordance with other provisionsof this code:

(1) Activities necessary to prevent or eliminate apublic hazard, such as elimination of adangerous curve in a road, dredging in orderto clean up a spill of hazardous waste, orremoval of underwater obstructions to boattraffic.

(2) Activities that provide a direct benefit to thepublic at large that would exceed any publicloss as a result of the activity, such asremoval of exotic species, restoration ofnatural hydroperiods, impacts associatedwith the maintenance of existing drainageworks, or providing water access to thegeneral public.

(3) Resource-oriented activities such as passiverecreation, outdoor education, or other useswhere protection of wetland functions andvalues is the primary attraction.

(4) Structures or facilities that will improve thefunctional value of wetlands or provide “no-impact” use for observation, education,research, or passage (walking or non-motorized boats); these could include suchstructures as public boardwalks, observationdecks, or launching areas for non-motorizedwatercraft.


Sec. 14-296. Permits required.

(a) Prior to any activity that will affect wetlands,an ERP or exemption shall be required from eitherDEP or SFWMD in accordance with F.S. ch. 373and F.A.C. ch. 62. The town will not undertake anindependent review of the impacts to wetlandsresulting from activity in wetlands that isspecifically authorized by an ERP or exemption,provided that the proposed activity is consistentwith the Fort Myers Beach comprehensive plan andthis code.

(b) No development approval shall be issued bythe town for any project that affects wetlands untilall requisite permits from other agencies have beenobtained and provided to the town. Relevantconditions placed on ERPs shall be incorporatedinto subsequent approvals issued by the town.

Sec. 14-297. Compliance enforcement.

(a) The town will enforce the provisions of anystate authorization relating to wetlands, includingERPs, that are incorporated into a developmentorder under ch. 10 or a building permit under ch. 6.

(b) The director is authorized to pursue any oneor combination of the enforcement mechanismsprovided in this code (for example, § 1-5, or articleV of ch. 2) for any violation of this article.

Cross reference–See also article VI of this chapterconcerning mangrove enforcement.

Secs. 14-298--14-370. Reserved.

ARTICLE V. TREE PROTECTION4

DIVISION 1. GENERALLY

Sec. 14-371. Short title. Reserved.

This article shall be known and may be cited asthe “Lee County Tree Protection Ordinance.”

Sec. 14-372. Findings of fact.

The town council board of county commissionershereby finds and determines that trees promote thehealth and general welfare of the citizens of thetown county, specifically:

(1) Trees transpire considerable amounts ofwater each day and assist in purifying the air;

(2) Trees precipitate dust and other particulateairborne pollutants from the air;

(3) Trees, through their root systems, stabilizesoil and play an important and effective partin countywide soil conservation, erosioncontrol, and flood control;

(4) Trees are an invaluable amenity to thecounty, providing shade and cooling the airand land, and reducing noise levels andglare;

(5) The protection of trees within the county isnot only desirable, but essential to the health,safety, and welfare of all the citizens, presentand future, of the town; county; and

(6) Some trees are more beneficial than others asnecessary contributions to the town’scounty’s environment, and it is not necessaryto protect each and every tree in order toattain the publicly beneficial results of a treeprotection; and ordinance.

(7) Invasive exotic trees crowd out native treesand other vegetation and do not warrantprotection under this article.

Sec. 14-373. Intent and purpose of article.

(a) The intent of this article is to provideprotection of trees through the preservation,protection, and planting of protected trees in orderto:

(1) aid in the stabilization of soil by theprevention of erosion and sedimentation;

4Cross reference(s)--Open space, buffering andlandscaping, § 10-411 et seq.


(2) reduce stormwater runoff and costsassociated therewith and maintainpermeable land areas for aquifer rechargeand surface water filtration;

(3) aid in the removal of carbon dioxide andgeneration of oxygen in the atmosphere;

(4) provide a buffer and screen against noisepollution;

(5) promote energy conservation through thecreation of shade, reducing heat gain in oron buildings or paved areas, and reducingthe temperature of the microclimate throughevapotranspiration;

(6) provide protection against severe weather;(7) aid in the control of drainage and

restoration of denuded soil subsequent toconstruction or grading;

(8) provide a haven for birds which in turnassist in the control of insects;

(9) protect and increase property values;(10) conserve and enhance the town’s county’s

physical and aesthetic environment; and(11) generally protect and enhance the quality of

life and the general welfare of the towncounty.

(b) The purpose of this article is to provideprotection of trees from abuse and/or mutilation,and to regulate the removal and planting ofprotected trees in the unincorporated areas of thecounty in order to enhance and protect theenvironmental quality of the town county.


(a) The following words, terms and phrases, andtheir derivations, when used in this article, shallhave the meanings ascribed to them in this section,except where the context clearly indicates adifferent meaning. When not inconsistent with thecontext, words in the present tense include thefuture and words in the singular number include theplural number. The word “shall” is alwaysmandatory and not merely directory.

Bona fide agricultural purposes [deleted]

Commission [deleted]

County [deleted]

Critical areas for surface water management [deleted]

Diameter at breast height (dbh) means thediameter, in inches, of a tree measured 54 inchesabove natural grade.

Director Administrator means the person towhom the town manager has delegated theauthority to administer this chapter, or that person’sdesignee. administrative director of the departmentof community development or his or her designee,who is the person responsible for administering theprovisions of this article.

Dripline means an imaginary vertical linerunning from the outermost branches or portion ofthe tree crown to the ground.

Indigenous vegetation means those plants whichare characteristic of the major plant communities ofthe county, as listed in § 10-701.

Invasive exotic tree means any of the followingtree species: Melaleuca (Melaleuca quinquenervia),Brazilian pepper (Schinus terebinthifolius), andAustralian pine (Casuarina spp.).

Massing of trees means to cluster trees in arandom fashion.

Notice of clearing means the permit issued by theadministrator after it has been recorded by theclerk’s office.

Person means any public or private individual,group, company, partnership, association, society orother combination of human beings whether legalor natural.

Protected tree means any tree listed in theprotected tree list in § 14-380(c).

Protective barrier means a physical structure notless than three feet in height composed of lumberno less than one inch by one inch in size forshielding protected trees from the movement ofequipment or the storage of equipment, material,debris or fill. Equivalent materials may be used toprovide a protective barrier if first approved by thedirector administrator.

Removal means the deliberate removal of a treeor causing the effective removal of a tree throughdamaging, poisoning or other direct or indirectactions resulting in the death of the tree.


Resource protection area [deleted]

Transition zone [deleted]

Tree means a living, woody, self-supportingplant, ten feet or more in height, having one ormore well-defined main stems or trunks, and anyone stem or trunk four inches in diameter at breastheight. Trees protected by this article are , and aslisted in § 14-380(c). appendix E. For the purposeof this article, those palms listed in § 14-380(c) onappendix E are declared to be a tree and areprotected by the provisions of this article.

Tree location protection map means a drawing oraerial photograph which provides the followinginformation: location of all trees protected underthe provisions of this article, plotted by groundtruthing or any other accurate scientific techniques;common or scientific name of all trees; anddiameter at breast height. Groups of trees in closeproximity (five feet spacing or closer) may bedesignated as a clump of trees, with thepredominant species, estimated number and averagesize listed.

Tree worthy of preservation [deleted]

Upland means land other than wetlands resourceprotection areas or transition zones.

(b) Unless specifically defined in this article, thewords or phrases used in this article and not definedin subsection (a) of this section shall be interpretedso as to give them the meaning they have incommon usage and to give this article its mostreasonable application.


Sec. 14-375. Penalty for violation of article.

(a) The director is authorized to pursue any oneor combination of the enforcement mechanismsprovided in this code (for example, § 1-5, or articleV of ch. 2) for any violation of this article. See alsothe restoration standards in § 14-384.

(a) Any person, organization, society,association, or corporation, or any agent orrepresentative thereof, who violates any provision

of this article shall, upon conviction, be subject tothe following penalties:

(1) Criminal penalties. Such person shall bepunishable as provided in § 1-5.

(2) Civil penalties. The following shall beapplicable:a. Injunctive relief to enjoin and restrain

any person from violating the provisionsof the article;

b. A fine not to exceed $500.00 perviolation;

c. Revocation, suspension or amendment ofany land development permit grantedpursuant to this article;

d. Restoration pursuant to the standardscontained in § 14-3845; and

e. Any other relief available pursuant tolaw.

(b) Any equitable, legal, or leasehold owner ofproperty who knew, or should have known, thatillegal removal of trees was occurring on propertyin which that individual has any equitable, legal, orleasehold interest, and who permitted that activityto occur without notifying the administrator of theperson, organization, society, association orcorporation, or any agency or representativethereof, of the improper or illegal removal of theprotected trees, shall be equally subject to any civilor criminal penalty set forth in this article.

(b) (c) In any prosecution under this article forthe removal of a protected tree without a permit,each tree so removed will constitute a separateoffense.

Sec. 14-376. Prosecution of violations.

Prosecution of violations of this article shall bebefore the court, the county code enforcementboard or the hearing examiner.

Sec. 14-377. Exemptions from article.

(a) This article shall not apply to the following:(1) Removal of trees on the following lands as

specified in this subsection:a. This article shall not apply to the

removal of trees, other than trees worthyof preservation, on lands classified asagricultural land for ad valorem taxationpurposes... [deleted in its entirety]


b. Removal of trees on land which is usedfor agricultural purposes and which isexempt from the provisions of this articleand which meets the criteria of or hasbeen designated as a resource protectionarea or transition zone shall be subject tothe provisions of article IV of thischapter.

c. [relocated to § 14-377(a)]d. [relocated to § 14-377(b)]

(1) (2) Trees in rights-of-way. The removal oftrees on public rights-of-way conducted byor on behalf of a federal, state, county,municipal or other governmental agency inpursuance of its lawful activities or functionsin the construction or improvement of publicrights-of-way or in the performance of itsofficial duties.

(2) (3) Damaged trees. The removal of aprotected tree that is dead or which has beendestroyed or damaged by natural causesbeyond saving or which is a hazard as theresult of an act of God and constitutes animmediate peril to life and property.

(4) The removal of trees by duly constitutedcommunication, water, sewer or electricalutility companies or federal, state or countyagency, engineer or surveyor, working undera contract with such federal, state or countyagency or when such tree removal is done asa governmental function of such agency.

(3) (5) Utility lines. The removal of trees byduly constituted communication, water,sewer or electrical utility companies in oradjacent to a public easement or right-of-way, provided such removal is limited tothose areas necessary for maintenance ofexisting lines or facilities or for constructionof new lines or facilities in furtherance ofproviding utility service to its customers, andprovided further that such removal isconducted so as to avoid any unnecessarydamage or removal of trees.

(4) (6) Surveying activities. The removal oftrees protected by this article, other than atree worth of preservation, by a state-licensed land surveyor in the performance ofhis duties. The removal of trees protected bythis article in a manner which requiresclearing a swath of greater than three feet inwidth shall require approval of the directoradministrator prior to such a removal andclearance.

(5) (7) Subdivided lots. The removal of up tothree protected trees during any one-yearperiod on a lot zoned for single-familyresidential use that is or being used lawfullyas a single-family residence or mobile home.where the residence or proposed residence islocated on a lot no greater than five acres inarea. However, all other lots that are vacantor have a building that is being replaced aresubject to the provisions of § 14-382(c).

(8) The removal of protected trees, other than atree worthy of preservation, on the premisesof a licensed plant or tree nursery or treefarm where such trees are intended for sale inthe ordinary course of the licensee’sbusiness.

(b) However, exemptions (1), (3), (4), and (5) inthe previous subsection shall not apply to any treecited in the Florida champion tree register (BigTrees: The Florida Register, published by theFlorida Native Plant Society, or successorpublication),

(b) Any final development order or other finalapproval issued by the county which was grantedafter January 27, 1983, but before the effective dateof the ordinance from which this article is derivedmay, at the discretion of the administrator, beexempted from compliance with this article, to theextent that the restrictions imposed by this articleconflict with the approvals given in the finaldevelopment order or other final approval, in whichcase the final development order or other finalapproval shall supersede this article as to thoseareas in conflict.

(c) However, the exemptions herein foragriculturally zoned land, agricultural landsclassified as exempt pursuant to F.S. §193.461(3)(b), and single-family lots shall notapply to land within 25 feet of the Orange River,which is also within the Buckingham Sector PlanArea, as defined in Goal 19 of the Lee Plan. Thisprovision shall sunset two years from the effectivedate of this article.

Sec. 14-377. Indigenous vegetation. [moved from§ 14-377(a)(1)c. and d.]

(a) c. If the property is located in the criticalareas for surface water management, and is not usedfor bona fide agricultural purposes, Indigenous


vegetation shall not be cleared in areas that serve aslisted species occupied habitat as defined in ch. 10,article III, division 8. The following shall apply:

(1) The director administrator shall determinethe location of protected species to bepreserved based on the criteria set forth inch. 10, article III, division 8. This reviewshall not be substituted for surveys requiredunder ch. 10, article III, division 8.

(2) The director administrator, or the propertyowner with the director’s administrator’sapproval, shall develop a management planbased on the criteria set forth in § 10-474.Preparation and review criteria for the planshall may be subject to the provisions of anappropriate administrative code. Up to tenpercent of the upland acreage shall bepreserved in areas where listed species arepresent. No more than two separate areasshall be set aside on any given parcel. Anystate-mandated upland listed speciespreserves shall be included within thereferenced ten percent preservation area.Bald eagles (Haliaeetus leucocephalus) shallbe protected pursuant to article III, division3, of this chapter.

(b) d. If the property is located in the criticalareas for surface water management, Indigenousvegetation shall not be cleared within 25 feet of themean high-water line or ordinary high-water line,whichever is applicable, of any natural waterway.listed in appendix F. Indigenous vegetation may becleared selectively to allow the placement of docks,pipes, pumps and other similar structures pursuantto this code. applicable county ordinances.

Sec. 14-378. Suspension of article duringemergency conditions.

Upon the declaration of a state of emergencypursuant to F.S. ch. 252, the director administratormay suspend the enforcement of the requirementsof this article for a period of 30 days in order toexpedite the removal of damaged and destroyedtrees in the interest of public safety, health, andgeneral welfare.

Sec. 14-379. Nonliability of town county.

Nothing in this article shall be deemed to imposeany liability upon the town county or upon any ofits officers or employees, nor to relieve the owner

and/or occupant of any duty to keep trees andshrubs upon private property or under his control ina safe condition.

Sec. 14-380. List of protected trees.

(a) Any tree delineated in § 14-380(c) appendixE shall henceforth be a protected tree and shallthereby come under the provisions of this article,except where those trees are exempted fromprotection pursuant to § 14-376 378.

(b) All other species of trees not named in§ 14-380(c) appendix E may be removed without apermit, but only in such a manner so as not todisturb or destroy surrounding protected trees or todisturb indigenous vegetation protected by § 14-377.

(c) Protected tree list.

FAMILY NAMEScientific Name Common Name

ACERACEAE (MAPLE FAMILY)Acer rubrum Red Maple

ANACARDIACEAE (CASHEW FAMILY)Rhus copallina Southern Sumac

ANNONACEAE (CUSTARD-APPLE FAMILY)Annona glabra Pond Apple

AQUIFOLOIACEAE (HOLLY FAMILY)Ilex cassine Dahoon Holly

AREACACEAE (PALM FAMILY)Coccothrinax argentata Silver PalmCocos nucifera Coconut PalmRoystonea elata Florida Royal PalmSabal palmetto Cabbage Palm

AVICENNIACEAE(BLACK MANGROVE FAMILY)

Avicennia germinans Black Mangrove

BETULACEAE (BIRCH FAMILY)Carpinus caroliniana Iron Wood

BORAGINACEAE (BORAGE FAMILY)Cordia sebestena Geiger Tree


BURSERACEAE (TORCHWOOD FAMILY)Bursera simaruba Gumbo Limbo

CAPPARACEAE (CAPER FAMILY)Capparis cynophallophora Jamaica Caper

COMBRETACEAE(WHITE MANGROVE FAMILY)

Bucida buceras Black OliveConocarpus erecta ButtonwoodLaguncularia racemosa White Mangrove

CORNACEAE (DOGWOOD FAMILY)Cornus foemina Swamp Dogwood

CUPRESSACEAE (CYPRESS FAMILY)Juniperus silicicola Southern Red Cedar

EBENACEAE (EBONY FAMILY)Diospyros virginiana Persimmon

FABACEAE (PEA FAMILY)Acacia farnesiana Sweet AcaciaLysiloma bahamensis Wild TamarindPiscidia piscipula Jamaica DogwoodPithecellobium unguis-cati Cat Claw

FAGACEAE (OAK FAMILY)Quercus chapmani Chapman OakQuercus incana Bluejack OakQuercus laevis Turkey OakQuercus laurifolia Laurel OakQuercus myrtifolia Myrtle OakQuercus nigra Water OakQuercus virginiana Live OakQuercus virginiana

geminataSand Live Oak

HAMAMELIDACEAE(WITCH-HAZEL FAMILY)

Liquidambar styraciflua Sweet Gum

JUGLANDACEAE(WALNUT AND HICKORY FAMILY)

Carya aquatica Water HickoryCarya glabra Pignut Hickory

LAURACEAE (LAUREL FAMILY)Persea borbonia Red BayPersea palustris Swamp Bay

MAGNOLIACEAE (MAGNOLIA FAMILY)Magnolia grandiflora Southern MagnoliaMagnolia virginiana Sweetbay

MELIACEAE FAMILY(MAHOGANY FAMILY)

Swietenia mahogoni West IndianMahogany

MORACEAE (MULBERRY FAMILY)Ficus aurea Strangler FigFicus citrifolia Short-leaf FigMorus rubra Red Mulberry

MYRTACEAE (MYRTLE FAMILY)Eugenia axillaris White SnapperEugenia confusa IronwoodEugenia rhombea Red StopperEugenia myrtoides Spanish StopperMyrcianthes fragans Simpson Stopper

NYSSACEAE (SOUR GUM FAMILY)Nyssa sylvatica Black Gum/

Black Tupelo

OLACACEAE (XIMENIA FAMILY)Ximenia americana Tallowood

OLEACEAE (OLIVE FAMILY)Forestiera segregata Florida PrivetFraxinus caroliniana Pop Ash

PINACEAE (PINE FAMILY)Pinus elliottii var. densa South Florida

Slash PinePinus palustris Long-leaf Pine

PLATANACEAE (SYCAMORE FAMILY)Platanus occidentalis Sycamore

POLYGONACEAE (BUCKWHEAT FAMILY)Coccoloba diversifolia Pigeon PlumCoccoloba uvifera Sea Grape

RHIZOPHORACEAE(RED MANGROVE FAMILY)

Rhizophora mangle Red Mangrove

ROSACEAE (ROSE FAMILY)Prunus caroliniana Cherry Laurel

RUTACEAE (RUE FAMILY)Zanthoxylum

clavaherculisHercules Club

SALICACEAE (WILLOW FAMILY)Salix caroliniana Coastal-Plain Willow


SAPOTACEAE (SAPODILLA FAMILY)Bumelia celastrina Buckthorn/

Saffon PlumBumelia tenax Buckthorn/

Tough BumeliaChrysophyllum oliviforme SatinleafMastichodendron foetidissimum

Mastic

SIMAROUBACEAE (QUASSIA FAMILY)Simarouba glauca Paradise Tree

TAXODIACEAE (BALD CYPRESS FAMILY)Taxodium ascendens Pond CypressTaxodium distichum Bald Cypress

THEACEAE (CAMELIA FAMILY)Gordonia lasianthus Loblolly Bay

THEOPHRASTACEAE (JOEWOOD FAMILY)Jacquinia keyensis Joewood

ULMACEAE (ELM FAMILY)Celtis laevigata HackberryUlmus americana American Elm

Sec. 14-381. Unlawful injury of trees.

It shall be a violation of this article for anyperson to remove, injure, disfigure, or destroy aprotected tree in preparation for, in connectionwith, or in anticipation of development of land,except in accordance with the provisions of thisarticle.

Sec. 14-382. Removal of protected trees.

(a) Permit required. Any protected tree, asdefined and protected by this article, may belawfully removed only after a permit therefor hasbeen secured from the director administrator.Failure to comply with the requirements of a treeremoval permit shall be a violation of this article.

(b) Relocation to public property. Where aprotected tree is to be removed under the provisionsof this article, the town county may, with theowner’s permission, relocate the tree (not beingrelocated within the property) at the town’scounty’s expense to publicly county-ownedproperty for replanting, either for permanentutilization at a new location or for future use at

another location other county-owned property. Ifthe town county does not elect to relocate any suchtree, it may give the county or any city within thecounty the ability to acquire such tree at its thecity’s expense for relocation within the city’sincorporated area for public use. The relocationshall be accomplished within 15 working days ofthe issuance of a permit, unless it is necessary toroot prune the tree to ensure its survival, in whichcase the relocation shall be accomplished within 30working days of the issuance of a permit or onanother suitable schedule as agreed to by all parties.

(c) Subdivided lots. For individual lots that arevacant or have a building that is being replaced, treepermits will be incorporated into the buildingpermit for the site. For clearing prior to buildingpermit issuance, a separate tree removal permitapplication must be submitted. Review of theproposed removal will follow the criteria listed in§ 14-412(d), and will also assess the existingunderstory or subcanopy plants and protectedspecies for retention or relocation within the site.However, no permit is required for the removal ofup to three protected trees during any one-yearperiod on a lot that is being used lawfully as asingle-family residence or mobile home.

Sec. 14-383. Tree protection during developmentof land.

(a) Prior to the land clearing stage ofdevelopment, the owner or developer shall clearlymark all protected trees for which a tree removalpermit has not been issued and shall erect protectivebarriers for the protection of the trees according tothe following:

(1) Around an area at or greater than a six-footradius of all species of mangroves andprotected cabbage palms;

(2) Around an area at or greater than the fulldripline of all protected native pines; and

(3) Around an area at or greater than two-thirdsof the dripline of all other protected species.

(b) No person shall attach any sign, notice orother object to any protected tree or fasten anywires, cables, nails, or screws to any protected treein any manner that could prove harmful to theprotected tree, except as necessary in conjunctionwith activities in the public interest.


(c) During the construction stage ofdevelopment, the owner or developer shall notcause or permit the cleaning of equipment ormaterial within the outside perimeter of the crown(dripline) or on the nearby ground of any protectedtree or group of trees which is to be preserved.Within the outside perimeter of the crown (dripline)of any protected tree or on nearby ground, theowner or developer shall not cause or permitstorage of building material and/or equipment, ordisposal of waste material such as paints, oil,solvents, asphalt, concrete, mortar, or any othermaterial harmful to the life of the tree.

(d) No person shall permit any unnecessary fireor burning within 30 feet of the dripline of aprotected tree.

(e) Any landscaping activities within theprotective barrier area shall be accomplished withhand labor.

(f) Prior to the director administrator issuing acertificate of occupancy or compliance for anydevelopment, building, or structure, all protectedtrees designated to be preserved that were destroyedduring construction shall be replaced by trees ofequivalent diameter at breast height tree caliper andof the same species as specified by the directoradministrator, before occupancy or use, unlessapproval for their removal has been granted underpermit.

(g) The director administrator may conductperiodic inspections of the site during landclearance and construction.

(h) If, in the opinion of the directoradministrator, development activities will soseverely stress slash pines or any other protectedtree such that they are made susceptible to insectattack, preventative spraying of these trees may berequired.

Sec. 14-384. Restoration standards.

(a) If a violation of this article has occurred andupon agreement of the director administrator andthe violator, or, if they cannot agree, then uponconviction by the court, the code enforcement boardor order of the hearing examiner, a restoration planshall be ordered in accordance with the followingstandards:

(1) The restoration plan shall include thefollowing minimum planting standards:a. The plan shall include a planting plan for

all protected trees. Replacement stockshall be computed on a three for onebasis according to the total number ofunlawfully removed trees. The phrase“three for one” in this section refers tothe requirement of replacing an illegallyremoved tree with three live treesaccording to the provisions of thisarticle. Replacement trees shall benursery grown, containerized, and noless than six feet in height. It shall bewithin the discretion of the directoradministrator to allow a deviation fromthe ratio specified in this subsection.When such deviation is sought, the totalof heights and calipers shall equal orexceed that specified in the standards setout in this subsection. An example ofthis might be one in which trees four feetin height might be planted in a ratio offive replacement trees to one illegallyremoved tree. Justification for such adeviation shall be provided to thedirector administrator.

b. The plan shall include a planting plan forunderstory vegetation. Understoryvegetation shall be restored to the areafrom which protected trees wereunlawfully removed or mutilated. Theplant selection shall be based on thatcharacteristic of the Florida Land Use,Cover and Classification System(FLUCCS) Code. Shrubs, ground coverand grasses shall be restored asdelineated in the Florida Land Use,Cover and Classification System Code.Up to seven species shall be utilized withrelative proportions characteristic ofthose in the Florida Land Use, Cover andClassification System Code. The exactnumber and type of species requiredshall also be based upon the existingindigenous vegetation on adjacentproperty. Replacement stock shall be noless than one-gallon-sized nursery-growncontainerized stock planted at no lessthan three feet on center in the area fromwhich protected trees were unlawfullyremoved or mutilated. This area shall bedefined by the dripline of the trees. The


number of shrubs shall not exceed, butmay be less than, 25 shrubs per treeunlawfully removed or mutilated. Theunderstory of the restored site shall beprotected for a period of no less than tenyears, unless its removal is a provision ofa development order which has beenapproved after the restoration of the site.

c. If the unlawful removal or mutilation oftrees has caused any change inhydrology or surface water flows, thenthe hydrology or surface water flowsshall be restored to pre-violationcondition.

(2) Massing of replacement stock shall besubject to agreement of the parties or, ifappropriate, then by approval of the court,the code enforcement board or the hearingexaminer, as long as the minimum number oftrees and/or seedlings are provided.Replacement stock, with the exception ofpalms, shall be Florida No. 1 or better grade.Replacement stock shall have a guaranteed80 percent survivability for a period of noless than five years. A maintenance provisionof no less than five years must be provided inthe restoration plan to control invasion ofexotic vegetation. Replacement stock shallnot be located on any property line, or in anyunderground utility or county easement thatprohibits such plantings. The directoradministrator may at his/her discretion allowthe replacement stock to be planted off-sitewhere approved development displaces areasto be restored. In these situations, off-siteplantings shall be on lands under the controlof a public agency. The off-site location issubject to the approval of the directoradministrator.

(3) In the event of impending development onproperty wherein protected trees wereunlawfully removed, the restoration planshall indicate the location of the replacementstock consistent with any approved plans forsubsequent development. For the purposes ofthis article, impending development shallmean that a developer has made applicationfor a preliminary development order orapplied for a building permit.

(4) If identification of the species of trees isimpossible for any reason on propertywherein protected trees were unlawfullyremoved, then a presumption is raised thatthe trees illegally removed were of a similarspecies and mix as those found on adjacentproperties.

(5) A monitoring report shall be submitted to thedirector administrator on an annual basis forfive years describing the conditions of therestored site. The monitoring report shall besubmitted on or before each anniversary dateof the effective date of the restoration plan.Mortality estimates per species planted,estimated causes for mortality, growth of thevegetation, and other factors which wouldindicate the functional health of the restoredsystems shall be included in the monitoringreport. Failure to submit the report in atimely manner shall constitute a violation ofthis article. When mitigation is requiredpursuant to this article, monitoring reportsare necessary to ensure that the mitigationefforts have been successful. In order toverify the success of the mitigation effortsand the accuracy of the monitoring reports,periodic inspections by county staff arenecessary. In order that the town county becompensated by the violator for the costs ofthese periodic inspections of the restored siteby county staff, a schedule of inspection feesmay shall be established by the town; if nosuch schedule exists, inspection fees shall bethose charged for similar services by LeeCounty. administrative code to be approvedby the board of county commissioners.

(b) If a violation of § 14-384 occurs, then therestoration provisions contained within § 14-384shall govern and supersede any other restorationprovisions contained within this article.

Secs. 14-385--14-410. Reserved.

DIVISION 2.ADMINISTRATION AND ENFORCEMENT

Sec. 14-411. Permit required.

No person, organization, society, association,corporation, or any agent or representative thereof,shall deliberately cut down, destroy, remove,


relocate, defoliate through the use of chemicals orother methods, or otherwise damage any tree that isprotected under this article and located in theunincorporated areas of the county, without firstobtaining a permit as provided in this article.

Sec. 14-412. Issuance of permit.

(a) Submission of application. Application for apermit to remove any protected tree defined in thisarticle shall be submitted to the directoradministrator, in writing, on a form provided by thedirector administrator, accompanied by a writtenstatement indicating the reasons for removal.

(b) Authority of director. administrator. Thedirector administrator shall have the authority toissue the permit and to inspect all work performedunder any permit issued under this article.

(c) Required information. All applications toremove any protected tree defined in this articleshall be on forms provided by the directoradministrator. Where an application has beensubmitted to the director administrator for theremoval of more than five protected trees, no treeremoval permit shall be issued by the directoradministrator until a site plan for the lot or parcelhas been reviewed and approved by the directoradministrator, which shall include the followingminimum information:

(1) The shape and dimensions of the lot orparcel, together with the existing andproposed locations of the structures andimprovements, if any.

(2) A tree location map for the lot or parcel, in aform acceptable to the director administrator.For the removal of five three protected treesor less, an on-site examination by thedirector’s administrator’s designee shall bemade in lieu of the tree location maprequirement.

(3) Any proposed grade changes that mightadversely affect or endanger any protectedtrees on the lot or parcel, together withspecifications reflecting how the trees can besafely maintained.

(4) Any proposed tree replacement plan.

(d) Criteria for granting. The directoradministrator shall approve a permit for issuancefor the removal of any protected tree if the director

administrator finds one or more of the followingconditions is present:

(1) Trees which pose a safety hazard topedestrian or vehicular traffic or threaten tocause disruption to public utility services.

(2) Trees which pose a safety hazard to existingbuildings or structures.

(3) Trees which, if not removed, would precludevehicular prevent reasonable access to a lotor parcel so long as the proposed accesspoint complies with all other countyregulations.

(4) Diseased trees which are a hazard to people,buildings or other improvements on a lot orparcel or to other trees.

(5) Trees so weakened by age, storm, fire, orother injury as to, in the opinion of thedirector administrator, jeopardize the life andlimb of persons or cause a hazard toproperty.

(6) Trees which, if not removed, would allow alandowner no beneficial use prevent thelawful development of a lot or parcel orwould place an inordinate burden on thelandowner. or the physical use thereof.

(7) The director administrator may require that atree protected by this article be relocated on thesame lot or parcel in lieu of removal. Permittingdecisions of the director may be appealedthrough the procedure set forth in § 34-83(d).

(e) Submission of site plan when buildingpermit not required. Where a building permitissuance is not required because no structures areready to be constructed and no other developmentof the lot is about to occur, any person seeking toremove a tree protected under this article shall firstfile a site plan with the director administratormeeting the requirements of subsection (c) of thissection prior to receiving a tree removal permitfrom the director. administrator.

(f) Inspection of site. The director administratormay conduct an on-site inspection to determine ifany proposed tree removal conforms to therequirements of this article and what effect, if any,removal of the protected trees will have upon thenatural resources, as identified in the Lee Plan, ofthe affected area prior to the granting or denying ofthe application. A permit fee will be required forthe removal or relocation of any tree protectedunder the provisions of this article and shall be paidat the time of issuance of the permit. The fees


established must be will be set in accordance withthe county administrative code and paid to thedirector administrator. Such fees are herebydeclared to be necessary for the purpose ofprocessing the application and making thenecessary inspection for the administration andenforcement of this article.

(g) Approval or denial. Based upon theinformation contained in the application and afterinvestigation of the application, the directoradministrator shall approve or deny the application,and, if approved, the director administrator is theparty so designated by the town board of countycommissioners to issue the permit for a period notto exceed one year and to collect the permit fee.

(h) Conditions. The director administrator mayattach conditions to the permit relating to themethod of identifying, designating, and protectingthose trees which are not to be removed inaccordance with subsection (g) of this section. Aviolation of these conditions shall automaticallyinvalidate the permit. Special conditions which maybe attached to the permit may include a requirementfor successful replacement of trees permitted to beremoved with trees of the same size, compatiblespecies and same number.

Sec. 14-413. Variances. [deleted in its entirety]

Sec. 14-414. Inspections; notice of violation. [deleted in its entirety]

Sec. 14-415. Stop work orders. [deleted in itsentirety]

Secs. 14-4136--14-450. Reserved.

ARTICLE VI. MANGROVEPROTECTION ENFORCEMENT5

Sec. 14-451. Purpose and intent of article.

The purpose of this article is to establishenforcement procedures and restoration standardsfor violations of the state department ofenvironmental protection mangrove protectionrules, to supplement and enhance department ofenvironmental protection enforcement mechanisms.The intent of this article is to discourage the illegalalteration of mangrove trees by improvingenforcement of department of environmentalprotection mangrove protection regulations and toensure that adequate restoration is provided withinthe unincorporated areas of the county. It is not theintent of this article to diminish any mangroveprotection requirements set forth in ch. 26, article II§ 26-41 et seq. and articles IV and V of thischapter.


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

Development means any improvement to landincluding but not limited to building construction;road and driveway construction or widening; utilityinstallation; dock and shoreline activities; and theinstallation of swimming pools, irrigation systems,fences, or other accessory structures.

Director Administrator means the person towhom the town manager has delegated theauthority to administer this chapter, or that person’sdesignee. county administrator or his designee, whois the person responsible for administering theprovisions of this article.

Invasive exotic vegetation means Australian pine(Casuarina spp.), Brazilian pepper (Schinusterebinthifolius), and paper or punk tree (Melaleucaquinquenervia), Earleaf Acacia (AcacisAuriculiformis), and primrose willow (Ludwigiaperuviana).

5Cross reference(s)--Marine facilities and structures, ch.26.


Mangrove shall have the same meaning asprovided by the Florida Administrative Code.

Mangrove alteration shall have the samemeaning as provided by the Florida AdministrativeCode.

(b) Unless specifically defined in this article, thewords or phrases used in this article and not definedin this section shall be interpreted so as to givethem the meaning they have in common usage andto give this article its most reasonable application.


Sec. 14-453. Enforcement of article; penalties.

(a) The director administrator is authorized topursue any one or combination of the followingenforcement mechanisms provided in this code (forexample, § 1-5, or article V of ch. 2) for anyviolation of this article. [remainder of subsectiondeleted in its entirety]

(b) Penalties. [deleted in its entirety]

(b c) Any equitable, legal, or leasehold owner ofproperty who knew, or should have known, thatillegal or improper trimming and/or removal ofmangroves was occurring on property on which thatindividual has any equitable, legal, or leaseholdinterest, and who permitted that activity to occurwithout notifying the administrator of the person,organization, society, association, corporation, orany agency or representative thereof, shall beequally subject to any civil or criminal penalty setforth in this article. When imposing a sentence orpenalty, the court, hearing examiner, codeenforcement board or any other appropriate bodymay, in mitigation, consider the successfulreplacement of mangroves illegally removed, andthe restoration of the subject area when deemed bythe court, the hearing examiner, the codeenforcement board, or any other appropriate bodythat the action taken by the violator has eliminatedor significantly decreased the ability of themangrove system to recover or perform thosefunctions for which it is being protected.

(c d) In any enforcement action under this article,each mangrove, so altered, will constitute a separateviolation.

Sec. 14-454. Restoration standards.

(a) Upon agreement of the director administratorand the violator, or if they cannot agree, then, uponconviction by the court, or order of the hearingexaminer, or the code enforcement board, arestoration plan shall be ordered pursuant to thestandards contained in subsection (b) of thissection. Such a restoration plan shall set forthreplacement of the same species or any speciesapproved by consent of the before-mentionedparties, or, if appropriate, in accordance with thedirection of the court, or hearing examiner, or thecode enforcement board.

(b) The restoration plan shall include thefollowing minimum planting standards:

(1) For each mangrove altered in violation ofthis article, three replacement mangrovesshall be planted. If the number of alteredmangroves cannot be determined, then therequired number of replacement stock shallbe computed according to the total areawherein all mangroves were unlawfullyaltered. The replacement stock shall becontainer grown mangroves no less than oneyear old and 24 inches in height.Replacement mangroves shall be planted at aminimum density of three feet on center.Higher density plantings may be required atthe discretion of the director administratorbased upon density and diameter of themangroves on the site prior to the violation.If the density of mangroves cannot bedetermined where the violation occurred,then an assumption shall be made that thedensity was the same as on adjacentproperties. It shall be within the discretion ofthe director administrator to allow adeviation from the above specified ratio.When such deviation is sought, the total ofheights and diameter shall equal or exceedthat specified in the above standards.

(2) Mangrove alteration violations due to filling,excavation, drainage, and/or clearing shall berestored to natural ground elevation and soilconditions prior to commencement ofreplanting.

(3) Replacement stock shall not be located onany property line, or in any undergroundutility or county easement that prohibits suchplantings.


(4) In the event that the species of mangrovecannot be identified on property whereinmangroves were altered in violation of thisarticle, then a presumption shall be made thatthe mangroves illegally altered were of asimilar species and distribution as thosefound on adjacent properties.

(5) Replacement plantings shall have aminimum of 80 percent survival at the end offive years, however, success will beevaluated on an annual basis.

(6) The restoration plan shall include amaintenance provision of no less than fiveyears for the control of invasive exoticvegetation.

(7) Within 90 days of completion of therestoration, a written report shall besubmitted to the county. This report shallinclude the date of completion, copies of thenursery receipts, a drawing showing thelocations of the plantings, and colorphotographs of the planting areas from fixedreference points.

(c) Annual monitoring and maintenance of therestored area shall include the following:

(1) Removal of all exotic and nuisancevegetation in the area without disturbing theexisting wetland vegetation.

(2) Replacement of dead mangroves that wereplanted in order to assure at least 90 percentcoverage at the end of the five-year period.Replacement mangroves shall be nurserygrown and of the same species and at leastthe same height as those originally planted.

(3) Submittal of a monitoring report to thedirector administrator on an annual basis forfive years following the completion of therestoration describing the conditions of themitigated site. The monitoring report shallinclude mortality estimates, causes formortality (if known), growth, invasive,exotic vegetation control measures taken,and any other factors which would indicatethe functional health of the plantedmangroves. Failure to submit the report in atimely manner shall constitute a violation ofthis article.

Sec. 14-455. Permit required.

No person, or any agent or representativethereof, directly or indirectly, shall alter any

mangrove tree located in the unincorporated areasof the county, without first obtaining a permit,where applicable, from the state department ofenvironmental protection in accordance with therequirements of ch. 17-321, Florida AdministrativeCode.

Sec. 14-456. Conflicting provisions.

Whenever the requirements or provisions of thisarticle are in conflict with the requirements orprovisions of any other lawfully adopted ordinance,the most restrictive requirements shall apply.

Sec. 14-457. Repealer; applicability of previousordinance. [deleted in its entirety]

CHAPTERS 15–21RESERVED

exhibit d proposed adoption of chapter 14 of the fort...

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