Lee County Unincorporated
City Zoning Code

ARTICLE II

- ADMINISTRATION

Sec. 34-81. - Appointment of local planning agency.

The Board of County Commissioners shall appoint the members of the Local Planning Agency.

(LDC 1994, § 34-81; Zoning Ord. 1993, § 901.01(A))

Sec. 34-82. - Initiation of zoning actions.

The Board of County Commissioners or its designee may initiate rezonings (including use of TDR or affordable housing bonus density units), special exceptions, variances, developments of regional impact and zoning ordinance amendments. See Section 34-201.

(LDC 1994, § 34-82; Zoning Ord. 1993, § 901.01(B); Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 99-22, § 3, 12-14-1999)

Sec. 34-83. - Functions and authority.

(a)

Zoning actions.

(1)

Function. Unless another approval process is authorized by County ordinance, the Board of County Commissioners must hold public hearings to consider the following applications: planned development rezoning, except as excluded by Section 34-145(d)(1)e, appeals from decisions of the Hearing Examiner concerning wireless communications facilities, developments of regional impact, and any other action in conjunction with such applications.

(2)

Considerations. In rendering its decision, the Board must consider the following:

The recommendations of the Hearing Examiner, staff, or the applicant when applicable.

Testimony received during public hearing before the Board.

The evidence included with the Hearing Examiner's recommendation.

(3)

Findings/review criteria.

Before granting a planned development rezoning or an amendment to a planned development, or appeal of a Hearing Examiner decision, the Board must find that the application satisfies the applicable review criteria in Section 34-145.

If a planned development rezoning or a planned development amendment request complies with the review criteria, the Board may deny the request if it finds that maintaining the existing zoning designation accomplishes a legitimate public purpose and is not arbitrary, discriminatory, or unreasonable.

(4)

Decisions and authority.

In exercising its authority, the Board:

May approve the request, deny the request, or remand the case for further proceedings before the Hearing Examiner.

In reaching its decision, the Board may, but is not required to, adopt the Hearing Examiner's recommendation, staff's recommendation, or the applicant's recommendation. The Board may render its own decision based on competent substantial evidence presented in the record. A decision to adopt the recommendation by the Hearing Examiner, Applicant, or staff will include the written findings, conclusions, and conditions provided in the applicable recommendation.

The Board may remand a case back to the Hearing Examiner for further review of specific issues. The scope of the remanded hearing will be limited to the specific issues identified by the Board.

May not approve a rezoning other than the rezoning published in the newspaper, unless the change is more restrictive than the proposed rezoning published.

Has the authority to attach conditions deemed necessary for the protection of the public health, safety, comfort, convenience or welfare to an approval of a:

Development of Regional Impact;

Planned Development; and

Use of TDR or affordable housing bonus density units in conjunction with a planned development zoning request; and

Conditions must reasonably relate to the action requested.

In the case of an appeal of a Hearing Examiner decision pertaining to wireless communication facilities, the Board must consider the decision as a recommendation.

The decision of the Board is final. If there is a tie vote, the matter will be continued until the next regularly scheduled Board meeting for decisions on zoning matters;

Denial by the Board is denial with prejudice unless otherwise specified.

(5)

Judicial review. Judicial review of final decisions under this section must be in accordance with Section 34-85.

(6)

Remand by Board. If a remand hearing does not occur within six months, the application will be deemed withdrawn.

(b)

Revocation of alcoholic beverage approvals under Section 34-1265.

(1)

Function. The Board must hold a hearing on petitions to revoke an alcoholic beverage approval. The hearings will be open to the public, but no public input will be taken.

(2)

Considerations. In rendering its decision, the Board must consider the following:

The grounds set forth in Section 34-1265 applicable to the case.

The recommendation of the Hearing Examiner.

Testimony received during the hearing before the Board.

The evidence and testimony included with the Hearing Examiner's recommendation.

(3)

Findings. In order to revoke an alcoholic beverage approval, the Board must find the approval holder has materially breached the requirements and that revocation is appropriate to protect the public health, safety, and welfare.

(c)

Appeals of Hearing Examiner decisions on appeals of administrative actions affecting fire impact fee regulation.

(1)

Function. The Board may hear appeals from Hearing Examiner decisions on appeals of an administrative action related to fire impact fee regulation as follows:

A party may file a request to appeal a decision of the Hearing Examiner within 15 calendar days after the decision is rendered.

Requests for appeal must be in writing and state with particularity, the points of law or fact that the Hearing Examiner has overlooked or misunderstood.

Requests for appeal must be filed with the Hearing Examiner's office. The Appellant must also concurrently provide copies to the County Attorney and all other parties in the case. Any party may file a written response with the Hearing Examiner's office within 15 calendar days after the request for appeal is filed, but not thereafter. The Board will decide whether to grant or deny the request based exclusively upon the Appellant's written request, responses filed by another party and the Hearing Examiner's written decision.

The deliberations of the Board on whether to hear the appeal do not constitute a public hearing, and the Board will not allow or consider testimony in the course of these deliberations.

The procedure for these appeals will be specified in the County's Administrative Codes.

(2)

Considerations.

Relevant matters. If the Board accepts the appeal of a matter pertaining to fire impact fees, the review will be confined to:

(1)

The written record prepared by the Hearing Examiner; and

(2)

Oral argument/discussion limited to the identification of errors of fact or law or to allege the discovery of new evidence.

The Board will conduct its review as an appellate proceeding, and not as a de novo proceeding. The Board may question its staff, its attorneys, and any party about matters in the written record and points of law or procedure.

Irrelevant matters. The Board will not take testimony from any person or accept into evidence any document that is not in the record provided by the Hearing Examiner.

(3)

Standard of review. The Board will uphold the decision of the Hearing Examiner unless the Board finds the decision is not supported by the record or is incorrect as a matter of law.

(4)

Decisions and authority. Once deciding to hear an appeal, the Board may reverse, affirm, or modify the Hearing Examiner's decision. The Board may also remand the case to the Hearing Examiner for additional proceedings if deemed necessary to provide fundamental fairness or prevent injustice. Unless the case is remanded, the decision of the Board is final. If there is a tie vote, the matter will be continued until the next regularly scheduled meeting for decisions on zoning matters by the Board, unless, before the next agenda item is called, a majority of the members, present and voting, agree by motion to take some other action. Such other action may be moved or seconded by any member, regardless of his vote on earlier motions.

(5)

Judicial review. Judicial review of final decisions under this section will be in accordance with Section 34-85.

(LDC 1994, § 34-83; Zoning Ord. 1993, § 901.02; Ord. No. 94-24, § 5, 8-31-1994; Ord. No. 95-07, § 10, 5-17-1995; Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 99-22, § 3, 12-14-1999; Ord. No. 03-11, § 1, 4-8-2003; Ord. No. 03-16, § 6, 6-24-2003; Ord. No. 05-14, § 6, 8-23-2005; Ord. No. 08-21, § 3, 9-9-2008; Ord. No. 09-23, § 10, 6-23-2009; Ord. No. 10-25, § 4, 6-8-2010; Ord. No. 13-10, § 10, 5-28-2013; Ord. No. 15-15, § 1, 11-17-2015; Ord. No. 16-10, § 3, 4-5-2016; Ord. No. 22-11, § 8(34-83), 5-17-2022)

Sec. 34-85. - Final decision; judicial review.

(a)

Any final decision of the Board of County Commissioners may be reviewed by the circuit court unless otherwise provided in this article. This review may only be obtained through filing a petition for writ of certiorari pursuant to the Florida Rules of Appellate Procedure. The petition must be filed within 30 calendar days after the decision has been rendered. For the purposes of computing the 30-day period, the date that the decision has been rendered is the date the signed resolution is date stamped received by the Minutes Department of the Clerk of Courts or where a written resolution is not adopted, 30 days from date of the Board's decision.

(b)

The person making application to the Board of County Commissioners for a final decision entitled to judicial review, is a necessary and indispensable party to an action seeking judicial review of that final decision.

(c)

This section is not intended to preclude actions pursuant to F.S. § 70.51 or 163.3215.

(LDC 1994, § 34-85; Ord. No. 95-07, § 12, 5-17-1995; Ord. No. 01-03, § 5, 2-27-2001; Ord. No. 13-10, § 10, 5-28-2013; Ord. No. 16-10, § 3, 4-5-2016)

Sec. 34-111. - Established.

A Local Planning Agency is hereby established having the powers and authority set forth in this division. It is the intent that the Local Planning Agency described herein serve as the Local Planning Agency referenced in F.S. § 163.3174.

(LDC 1994, § 34-111; Zoning Ord. 1993, § 900; Ord. No. 03-16, § 6, 6-24-2003)

Sec. 34-112. - Membership; term of office.

(a)

Appointment of members.

(1)

All appointments to the Local Planning Agency require an affirmative vote of three members of the Board of County Commissioners at a regularly scheduled meeting. Each term will last for a period of one year. Members may be reappointed.

(2)

The Local Planning Agency will be composed of seven voting members, appointed by the Board of County Commissioners. In addition, the Local Planning Agency will also include a representative of the School Board. This representative will be a nonvoting member of the Local Planning Agency and will attend those meetings where the Local Planning Agency considers comprehensive plan amendments that would, if approved, increase the potential residential density on the subject property.

(b)

Qualifications of members. Members of the Local Planning Agency must be knowledgeable in the field of comprehensive planning and familiar with the Lee Plan, this chapter and other applicable regulations.

(c)

Removal of members. A member of the Local Planning Agency may be removed from his position upon an affirmative vote of three members of the Board of County Commissioners at a regularly scheduled meeting.

(d)

Vacancies. Vacancies on the Local Planning Agency will be filled, consistent with the procedures for appointment, for the unexpired term of any member whose term becomes vacant.

(LDC 1994, § 34-112; Zoning Ord. 1993, § 900(A)1; Ord. No. 03-16, § 6, 6-24-2003)

Sec. 34-113. - Compensation of members; funding.

(a)

The Local Planning Agency will serve without compensation, but members will be paid actual expenses incurred in performance of their duties, which may not exceed allowances as prescribed by State law.

(b)

The Board of County Commissioners will appropriate funds for expenses necessary for the conduct of work by the Local Planning Agency. The Local Planning Agency may expend all sums appropriated in order to accomplish the purposes and activities required by this chapter and the Local Government Comprehensive Planning and Land Development Regulation Act.

(LDC 1994, § 34-113; Zoning Ord. 1993, § 900(A)2; Ord. No. 03-16, § 6, 6-24-2003)

Sec. 34-114. - Organization and operation.

(a)

Officers and staff.

(1)

The Local Planning Agency, from among its members, will elect a chairman and such other officers as the members deem necessary. Each officer will serve until his successor is elected.

(2)

The Department Director will serve as secretary to the Local Planning Agency but will not be a voting member.

(b)

Rules of procedure. The Local Planning Agency will adopt rules for the transaction of its business and conduct meetings pursuant to the provisions of any resolution, regulation or Administrative Code of the Board of County Commissioners.

(c)

Meetings.

(1)

The Department Director will set the time and place of the meetings of the Local Planning Agency. However, if a meeting, once started, exceeds the time which has been scheduled for the meeting, it may be continued to a date, time and place certain, as the Local Planning Agency determines. The Local Planning Agency will meet at least once a month unless no business is pending before it. Additional meetings will be held at the call of the chairman or secretary and at all such other times as the members may determine.

(2)

Any action by the Local Planning Agency requires the presence of a quorum. Four members will constitute a quorum of the Local Planning Agency.

(3)

All meetings will be open to the public.

(4)

The Local Planning Agency will adopt procedures for public participation. Such procedures will comply with the criteria set forth in F.S. § 163.3181.

(d)

Voting.

(1)

Generally.

The majority vote of the quorum present will be required to make any recommendation to the Board of County Commissioners.

If a majority decision cannot be obtained, or if a tie vote results from a motion to recommend to the Board of County Commissioners that a proposed matter be approved, or to recommend that it be denied, then the matter considered will be deemed to have been denied, unless a majority of the members present and voting agree by motion, before the next agenda item is called, to take some other action in lieu of a denial. Such other action may be moved or seconded by any member, regardless of his vote on any earlier motion. If such other action is not agreed to be taken, the minutes of the Local Planning Agency will show that the motion was called and that the matter voted upon was denied.

(2)

Absenteeism and abstentions.

A member's absence from a meeting will be reflected in the minutes.

A member may abstain from a vote only in accordance with F.S. Ch. 112 and F.S. § 286.012.

(e)

Records.

(1)

The secretary must record and transcribe minutes of all proceedings. At a minimum, such minutes must summarize testimonies, and reflect the motion and the votes.

(2)

The Department staff must keep indexed records of all meetings, agendas, findings, determinations and resolutions. Those records are public records.

(LDC 1994, § 34-114; Zoning Ord. 1993, § 900(A)3; Ord. No. 03-16, § 6, 6-24-2003)

Sec. 34-115. - Functions and authority.

(a)

Functions. The Local Planning Agency will have the following statutorily prescribed duties and responsibilities:

(1)

Have general responsibility for the conduct of the comprehensive planning program.

(2)

Be responsible for preparation of the local comprehensive plan and make recommendations to the Board of County Commissioners regarding the adoption of such plan or element or portion thereof.

(3)

Monitor and oversee the effectiveness and status of the comprehensive plan and recommend to the Board of County Commissioners such changes in the comprehensive plan as may be required, including preparation of the periodic reports required by F.S. § 163.3191.

(4)

Review proposed land development regulations and land development codes or amendments thereto and make recommendations to the Board of County Commissioners as to consistency of the proposal with the adopted comprehensive plan or element or portion thereof.

(5)

Perform any other functions, duties and responsibilities which may be assigned to it by the Board of County Commissioners or general or special law.

(b)

Considerations. In preparing its recommendation on any matter as described in Subsection (a) of this section, the Local Planning Agency will consider the following, whenever applicable:

(1)

Whether there exists an error or ambiguity which must be corrected.

(2)

Whether there exist changed or changing conditions which make approval of the matter appropriate.

(3)

The testimony of any applicant.

(4)

The recommendation of staff.

(5)

The testimony of the public.

(6)

Whether a proposed matter is consistent with the goals, objectives, policies and intent of the Lee Plan.

(c)

Decisions and authority. The Local Planning Agency must make recommendations concerning determinations of Lee Plan consistency, as the Lee Plan relates to proposed land development regulations and ordinances, to the Board of County Commissioners.

(LDC 1994, § 34-115; Zoning Ord. 1993, § 900.01; Ord. No. 03-16, § 6, 6-24-2003)

Sec. 34-141. - Office established.

The Office of Hearing Examiner is hereby created and established, in accordance with the provisions of this Code. The Hearing Examiner has the powers set forth in:

•

The Land Development Code;

•

Code Enforcement Board/Special Masters Ordinance (Lee County Code, Chapter 1, Article II, Division 2 and Section 18-95);

•

Historic Preservation Ordinance (Lee County Code, Chapter 22);

•

The Nuisance Accumulation Ordinance (Lee County Code, Chapter 18, Article IV);

•

Mandatory Recycling of Commercial and Multifamily Residential Solid Waste, Construction and Demolition Debris ( Lee County Code, Chapter 23, Article III);

•

Mandatory Solid Waste Collection and Disposal Benefit Unit Ordinance (Lee County Code, Chapter 25, Article VII, Division 2);

•

The Lot Mowing Ordinance (Lee County Code, Chapter 18, Article V);

•

The Abandoned Property Registration Program (Lee County Code, Chapter 18, Article III); and

•

The Noise Control Ordinance ( Lee County Code, Chapter 19, Article VI).

(LDC 1994, § 34-141; Zoning Ord. 1993, § 900; Ord. No. 09-23, § 10, 6-23-2009; Ord. No. 15-15, § 1, 11-17-2015; Ord. No. 24-14, § 8, 10-1-2024)

Sec. 34-142. - Appointment, qualifications.

The Board will appoint the Chief Hearing Examiner and may authorize the Chief Hearing Examiner to hire deputy Hearing Examiners or Hearing Examiners pro tempore, as necessary. Chief Hearing Examiners will hold their positions at the pleasure of the Board. Appointment, removal, and qualifications of the Hearing Examiner will be in accordance with the Administrative Codes.

(LDC 1994, § 34-142; Zoning Ord. 1993, § 900(B)1; Ord. No. 15-15, § 1, 11-17-2015)

Sec. 34-143. - Funding.

The Board will establish the office of the Hearing Examiner and appropriately budget the office annually.

(LDC 1994, § 34-143; Zoning Ord. 1993, § 900(B)2; Ord. No. 15-15, § 1, 11-17-2015)

Sec. 34-144. - Conduct of hearings; reports and records.

(a)

Rules of procedure. The Board will adopt rules for transaction of Hearing Examiner business and the Hearing Examiner will conduct meetings in accordance with applicable regulations and Administrative Codes.

(b)

Hearings. Public hearings will be scheduled, noticed and conducted pursuant to applicable Administrative Codes and this Code. A hearing will not take place unless a staff report is delivered to the applicant and the Hearing Examiner, and made available to the public, at least 14 calendar days prior to the public hearing for rezoning cases and at least seven days prior to the public hearing for variance and special exception cases.

(c)

Reports of decisions and recommendations. After a public hearing is held, the Hearing Examiner will prepare a written report of the decision or recommendation in accordance with the Administrative Code.

(d)

Recordings. The Hearing Examiner will record hearings and provide a copy of the recording to the Department. The Department will be the official custodian of the recordings.

(e)

Attendance at hearings. The Hearing Examiner may request staff members with personal knowledge of relevant facts to attend hearings and produce relevant documents. The Hearing Examiner may notify the County Manager if staff fails to comply with such requests.

(LDC 1994, § 34-144; Zoning Ord. 1993, § 900(B)3; Ord. No. 11-08, § 10, 8-9-2011; Ord. No. 15-15, § 1, 11-17-2015; Ord. No. 19-03, § 7, 4-2-2019)

Sec. 34-145. - Functions and authority.

The Hearing Examiner is limited to the authority that is conferred by the following:

(a)

Appeals of administrative decisions.

(1)

Authority. The Hearing Examiner's authority to hear and decide appeals is limited to the following final, written decisions issued by the appropriate administrative official with the final decision-making authority.

Rejection of an application for a Building or Sign Permit;

Denial of an application for a local development order or Mine Operations Permit under Chapters 10 or 12;

Denial of an application for a use permit for a use specifically identified within the use activity groups or the zoning district use regulation tables under Chapter 34;

Decision made in the course of administering Chapter 2, Article VI;

Decision of the historic preservation board in accordance with Section 22-42;

Denial of an exemption or final administrative action under Chapter 14, Article III;

Decision pursuant to section 26-80;

Unlawful sign determination provided under Section 30-8(2); and

Requirement for submittal of additional information or documentation within the request for additional information as part of a local development order or zoning application (including variances and special exceptions), limited to a determination as to whether the requested additional information is beyond the application submittal requirements under the Code or outside the authority of the County to require such additional information under the Code.

(2)

Final decisions. The decisions within Subsection (a)(1) of section upon which the Hearing Examiner has authority to hear administrative appeals must be a final decision that was issued in writing by the appropriate administrative official with final decision-making authority to implement or enforce the applicable provision of this Code, including the County Manager, the Director of Community Development, Zoning Manager, Development Services Manager, Building Official, or Director of Natural Resources. For purposes of this provision, the use of the individual titles does not include their designees.

(3)

Limitations on authority. If the requirements of Subsections (a)(1) and (a)(2) of this section are met, the authority to hear an appeal is further limited and the Hearing Examiner is not authorized to hear appeals based on:

Challenges to the validity of County ordinances, regulations or actions of administrative officials under State or federal laws;

Acts of administrative officials pursuant to the orders, resolutions, or directives of the Board;

Ordinances, regulations, or provisions in this Code that provide a different appellate procedure;

Challenges to a Development Order controlled by F.S. § 163.3215;

Appeals requiring the interpretation of the Lee Plan, including but not limited to the issuance of a denial due to inconsistency with the Lee Plan or the requirement for submittal of additional information or documentation based on requirements of the Lee Plan;

Appeals that circumvent required procedures;

Appeals that seek relief more appropriately addressed in an application for a variance, special exception, or rezoning; and

Appeals of a decision of the Historic Preservation Board will be limited to a determination of whether:

The Board afforded procedural due process;

The Board applied the correct law; and

The record contains competent and substantial evidence to support the Board's actions.

(4)

Time for filing Notice of Appeal. Unless otherwise provided in the Code, ordinance, or resolution or other provision which creates the right of appeal, no person shall be entitled to appellate review of an appealable decision who fails to file a proper Notice of Appeal within 30 calendar days of the date the decision is issued. For appeals seeking review of requirements for submittal of additional information or documentation, the Notice of Appeal must be filed within 14 calendar days from the date the written request for additional information was issued.

(5)

Standing to appeal.

The applicant may appeal an administrative action. Nonapplicants do not have standing to appeal administrative actions to the Hearing Examiner, except in the context of actions arising out of the fire impact fee regulations.

Regarding administrative actions arising out of fire impact fee regulations:

The Fire District with jurisdiction over the property affected by the action appealed is a necessary party in the appeal.

A Fire District may appeal an administrative action under this section, but only if the action in conjunction with future actions that will necessarily flow from the decision appealed will result in a cumulative reduction of impact fee revenues to the district exceeding $25,000.00. The District's appeal must clearly explain how the action will produce the cumulative reduction in revenues. Any disputes over whether the action falls within this subsection will be resolved by the Hearing Examiner before the appeal hearing.

This subsection does not authorize a Fire District to appeal permits or other administrative actions that fall within the scope of the existing exemption for Timberland and Tiburon DRI. Such appeals are prohibited.

(6)

Acceptance of the appeal. In determining whether to accept the appeal and issue an order to show cause, the Hearing Examiner must conclude all of the following:

The appeal was timely filed;

The Hearing Examiner has authority to hear the appeal under Subsection (a)(1) of this section and that the appeal is not further limited under Subsection (a)(2) of this section;

The Hearing Examiner has authority to grant the relief sought;

The appellant has standing to file the appeal;

The Notice of Appeal sufficiently states the alleged error and basis of the appeal, including the sections of this Code in which the decision does not comply;

The appeal is not moot; and

The Notice of Appeal meets the requirements of the Administrative Code.

(7)

Considerations. The Hearing Examiner shall only consider evidence which was presented to the County administrative official at the time the decision was made, or legislative intent, in the event the provision is unclear or ambiguous. No issue, testimony, physical or documentary evidence may be raised or introduced at the hearing or within the Notice of Appeal which was not previously submitted to the County staff, administrative official, or Board whose decision is being appealed.

(8)

Relief granted. The relief that may be granted in an administrative appeal is limited as follows:

The Hearing Examiner may:

Reverse or affirm the decision;

Remand the case back to County staff with instructions to consider additional competent substantial evidence or relevant Code provisions or requirements; or

Where the Hearing Examiner has the authority to review decisions of a Commission or Board, only remand the matter to the applicable board or commission for further proceedings consistent with the Hearing Examiner's findings and conclusions of law.

The Hearing Examiner may not grant relief that:

Requires Board approval or authorization; or

Requires approval through a public hearing under this Code or an Administrative Code.

Before making a decision that the administrative official erred in the appealed action, the Hearing Examiner must find the administrative action was:

Inconsistent with the applicable Code provision and review criteria;

Inconsistent with the plain and ordinary meaning of the regulation; or

If the regulation is unclear or ambiguous, inconsistent with the intent of the regulation.

(9)

Judicial review. Judicial review by the Circuit Court of a final decision of a Hearing Examiner may be had by filing a Notice of Appeal in accordance with applicable appellate rules. Parties to a fire impact fee regulation case may file a request to appeal a decision made by the Hearing Examiner under this section to the Board within 15 calendar days after the decision is rendered.

(10)

Procedure. Appeals to the Hearing Examiner must be submitted in compliance with the Administrative Codes. Formal Rules of Evidence, Civil Procedure and Appellate Procedure do not apply.

(b)

Variances.

(1)

Authority.

The Hearing Examiner will hear and decide requests for variances from this Code and from other ordinances as assigned by the Board.

The Hearing Examiner has the authority to grant, deny, or modify any request for a variance.

The Hearing Examiner does not have the authority to grant a use variance from the definitions or procedures in ordinances.

Variance requests may be reviewed alone or as part of a rezoning or special exception.

(2)

Considerations. In reaching a decision, the Hearing Examiner must consider the following:

Testimony and evidence from the applicant;

Testimony and evidence from staff, including the staff report and attachments;

Testimony and evidence from participants;

The Lee Plan;

This Code; and

Applicable regulations.

(3)

Findings/review criteria. Before granting a variance, the Hearing Examiner must find the following review criteria are satisfied:

The property has inherent exceptional conditions that cause the application of the regulation to create a hardship (as defined in Section 34-2) on the property owner.

The exceptional conditions are not the result of actions of the property owner taken subsequent to the adoption of the ordinance.

The variance granted is the minimum variance that will relieve the unreasonable burden caused by the application of the regulation to the property.

The granting of the variance will not be injurious to the neighborhood or detrimental to the public welfare.

The variance is consistent with the Lee Plan.

(4)

Special findings. The Hearing Examiner must also make special findings in variances for the following:

Wireless communication facilities.

Denial would have the effect of prohibiting the provision of personal wireless services;

Denial would unreasonably discriminate among providers of functionally equivalent personal wireless services;

The variance is necessary to ensure adequate public safety and emergency management communications;

The variance is the minimum necessary in order for the applicant to provide broadcast services pursuant to an FCC-issued license or construction permit (existence of an FCC license requiring a broadcast antenna at a given height will constitute a presumption that this requirement has been met);

Denial would have the effect of prohibiting the provision of amateur radio services; or

The variance will obviate the need for additional antenna-supporting structures in the geographic search area.

Airport Compatibility District regulations. The variance can be accommodated in the navigable airspace without an adverse impact to the aviation operation of SWFIA or Page Field.

Variances to the sections of Chapter 10. The variance will not create an undue burden on essential public facilities.

Chapter 26, Article II, Dock and Shoreline Structures. The variance is consistent with the Manatee Protection Plan.

(5)

Decisions.

When the Hearing Examiner determines denial is appropriate, the decision must cite to the specific legal authority for the denial.

In reaching a decision, the Hearing Examiner may attach conditions necessary for the protection of the health, safety, comfort, convenience and welfare of the general public. Conditions must rationally relate to the variance.

Decisions of the Hearing Examiner on variances filed from the Airport Compatibility District regulations, must be in the form of a recommendation to the Board.

(6)

Judicial review. Judicial review of Hearing Examiner's final variance decisions are to the circuit court. Exception: review of the Hearing Examiner's wireless communication facilities decisions must follow the procedures outlined in Sections 34-1453(b) and 34-1445(b)(2)b.

(7)

Effective date. Final decisions in a variance case become effective and enforceable on the date Hearing Examiner issues the final decision.

(c)

Special exceptions.

(1)

Authority. The Hearing Examiner will hear and decide applications for special exceptions permitted by the district use regulations. Special exceptions may be reviewed alone or with an application for a variance or rezoning.

(2)

Considerations. In reaching a decision, the Hearing Examiner must consider the following:

Testimony and evidence from the applicant;

Testimony and evidence from staff, including the staff report and attachments;

Testimony and evidence from participants;

The Lee Plan;

This Code; and

Applicable regulations.

(3)

Findings/review criteria.

Prior to granting a special exception, the Hearing Examiner must find the applicant has proven entitlement to the special exception by demonstrating the request:

Is consistent with the goals, objectives, policies and intent of the Lee Plan;

Will protect, conserve or preserve environmentally critical and sensitive areas and natural resources, where applicable;

Will be compatible with existing and planned uses;

Will not be injurious to the neighborhood or detrimental to the public welfare; and

Will be in compliance with zoning regulations pertaining to the use and other applicable regulations.

In the case of new antenna-supporting structure wireless communication facilities, the Hearing Examiner must also find, or conclude a finding is not applicable, that:

The applicant is not able to use existing wireless communications facility sites in the geographic search area;

The applicant has agreed to rent or lease available space on the antenna-supporting structure, under the terms of a fair-market lease, without discrimination to other wireless communications service providers;

The proposed antenna-supporting structure will not be injurious to historical resources, obstruct scenic views, diminish residential property values, or reduce the quality and function of natural or manmade resources; and

The applicant has agreed to implement all reasonable measures to mitigate the potential adverse impacts of the structures and facilities.

In the case of private aircraft landing facilities, the Hearing Examiner must make a finding that the location of the proposed facility will not interfere with the operation of any existing aircraft landing facilities, airports or heliports.

In the case of any use proposing to use solar or wind energy for water heating, climate control or electricity, the Hearing Examiner must find:

Modifications to the property development regulations, if requested:

Are necessary so as to maximize use of solar or wind energy; and

iii.

Do not decrease total lot area on which the use is located;

The principal use, absent its solar or wind aspects, is a permitted use in the zoning district for which it is proposed; and

The location of the proposed solar or wind energy equipment and access, do not, or will not, require the restriction of development on adjoining properties with respect to their existing zoning classification.

In the case of specified departures from the standard dock and shore regulations in Chapter 26, the Hearing Examiner must also find, or conclude a finding, that the proposed development is in compliance with the Manatee Protection Plan.

(4)

Decision.

The Hearing Examiner must grant the special exception unless he or she finds the request conflicts with Subsection (c)(3) of this section, or the request is contrary to the public interest and the health, safety, comfort, convenience and welfare of the citizens of the County. If the Hearing Examiner determines denial is appropriate, the decision must cite to the specific legal authority for the denial.

The Hearing Examiner may attach conditions necessary for the protection of the health, safety, comfort, convenience or welfare of the general public. The conditions must rationally relate to the special exception.

(5)

Judicial review. Judicial review of Hearing Examiner's final decisions on special exceptions are to circuit court. Exception: review of Hearing Examiner's wireless communication facilities decision must follow the procedure outlined in Section 34-1445(b)(2)b.

(6)

Final decision. Final decisions in a special exception case become effective on the date the Hearing Examiner issues the final decision.

(d)

Zoning matters.

(1)

Authority.

The Hearing Examiner will hear and decide applications for conventional rezoning, amendments to approved planned developments pursuant to Subsection (d)(1)e of this section, and, notwithstanding Section 34-1038(b), amendments to planned unit developments that are not subject to separate ordinance.

The Hearing Examiner serves in an advisory capacity to the Board on new planned development zoning requests, amendments to planned developments exceeding the scope of amendments permitted by Subsection (d)(1)e.3 of this section, amendments to approved MEPDs, and amendments to planned unit developments approved by separate ordinance.

The Hearing Examiner may not recommend approval of a rezoning that is more expansive than the request published in the newspaper. The Hearing Examiner may recommend approval of a zoning district that is more restrictive than the published request.

The Hearing Examiner may impose conditions of approval on requests to amend planned developments where the Hearing Examiner retains final decision-making authority. The Hearing Examiner may recommend conditions of approval on requests for new planned developments or amendments to existing planned developments subject to Board approval.

The Hearing Examiner has the final decision-making authority on the following matters:

Board-initiated applications to rezone County-owned property to the Environmentally Critical (EC) District.

Applications for conventional rezoning.

Applications for amendments to planned developments when the request is limited to:

Amendments to the master concept plan, schedule of uses, or property development regulations that do not increase the maximum density or non-residential floor area in the planned development, except as provided in Subsection vi below;

ii.

Requests for consumption on premises;

iii.

Requests for wireless telecommunication facilities;

iv.

Requests for an increase in the maximum number of fuel pumps in conjunction with a convenience food and beverage store or automobile service station provided that the use is already approved in the planned development;

Changes to conditions and deviations; or

vi.

Requests to establish or increase density within the Mixed Use Overlay.

Notwithstanding Section 34-1038(b), amendments to planned unit developments that are not subject to separate ordinance.

An applicant or agent applying for a conventional rezoning or an amendment to a planned development in which the Hearing Examiner has the final decision-making authority may request a public hearing before the Board of County Commissioners in accordance with Section 34-83(a)(1). Such a request must be made prior to the issuance of a final decision by the Hearing Examiner.

(2)

Functions. The Hearing Examiner has the duty and responsibility to make recommendations to the Board on applications for the following requests:

New planned development rezoning requests, or amendments to planned developments exceeding the scope of amendments permitted by Subsection (d)(1)e.3 of this section.

Developments of Regional Impact and Florida Quality Developments, with or without a companion request for rezoning.

Variances from County ordinances that specify variances may only be granted by the Board.

Use of bonus density in conjunction with a rezoning to a planned development district except as permitted by Subsection (d)(1)e.3 of this section.

Amendments to Development of Regional Impact Development Orders under F.S. Ch. 380.

(3)

Considerations. The Hearing Examiner must consider the following:

Testimony and evidence from the applicant;

Testimony and evidence from the staff, including the staff report and attachments;

Testimony and evidence from participants;

The Lee Plan;

This Code; and

Applicable regulations.

(4)

Findings/review criteria.

Approval. Before approval or recommending approval for:

Rezonings generally. The Hearing Examiner must find the request:

Complies with the Lee Plan;

Meets this Code and other applicable County regulations or qualifies for deviations;

Is compatible with existing and planned uses in the surrounding area;

Will provide access sufficient to support the proposed development intensity;

The expected impacts on transportation facilities will be addressed by existing County regulations and conditions of approval;

Will not adversely affect environmentally critical or sensitive areas and natural resources; and

Will be served by public services, defined in the Lee Plan, if located in a Future Urban area category.

Planned development rezonings. The Hearing Examiner must also find:

The proposed use or mix of uses is appropriate at the proposed location.

The recommended conditions provide sufficient safeguards to the public interest and are reasonably related to the impacts on the public's interest expected from the proposed development.

If the application includes deviations pursuant to Section 34-373(a)(9), that each requested deviation:

Enhances the achievement of the objectives of the planned development; and

Protects the public health, safety and welfare.

Mine excavation planned development. The request meets the following:

The mining activity will not create or cause adverse effects from dust, noise, lighting and odor on existing agricultural, residential, conservation activities, or other nearby land uses.

The applicant has given special consideration to the protection of surrounding privately and publicly owned conservation and preservation lands.

Approval of the request:

Will maintain the identified wet and dry season water level elevations and hydro periods necessary to restore and sustain water resources and adjacent wetland hydrology on and off-site during and upon completion of the mining operations.

ii.

Will serve to preserve, restore and enhance natural flow-ways deemed important for local or regional water resource management.

iii.

Preserves indigenous areas that are occupied wildlife habitat to the maximum extent possible.

iv.

Provides interconnection to off-site preserve areas and conservation lands via indigenous preservation areas, flow-way preservation or restoration, and planted buffer areas.

The site is designed to:

Avoid adverse effects to existing agricultural, residential or conservation activities in the surrounding area.

ii.

Avoid adverse effects from dust, noise, lighting, or odor on surrounding land uses and natural resources.

iii.

Mimic or restore the natural system pre-disturbed water budget to the maximum extent practicable.

Traffic mitigation standards in Section 12-116.

Reclamation standards in Section 12-119.

Rezonings to the Environmentally Critical (EC) District. The Hearing Examiner must make the additional finding that rezoning to the EC District is necessary to prevent public harm or meet a public need.

Denials. Before denying or recommending denial of a rezoning request that complies with the applicable review criteria, the Hearing Examiner must find maintaining the existing zoning designation is not arbitrary, discriminatory, or unreasonable and accomplishes a legitimate public purpose.

(5)

Recommendations. The Hearing Examiner's recommendation on planned development and DRI zoning matters will be provided in a written report to the Board.

(6)

Recommendations on planned developments.

If the Hearing Examiner determines that a recommended condition is insufficient, the Hearing Examiner may propose an alternate condition for consideration by the Board.

If the Hearing Examiner concludes that the application omits necessary deviations, those deviations may be included in the recommendation without an additional hearing, provided evidence exists in the record to support the omitted deviations.

The Hearing Examiner may not recommend conditions or deviations allowing use variances or deviations from definitions or procedural requirements of this Code or other ordinances.

The Hearing Examiner may recommend that the applicant obtain administrative approval of a more detailed development plan for each development area as a condition of approval of a deviation.

(7)

Recommendations on applications for amendments to Development of Regional Impact Development Orders pursuant to F.S. Ch. 380.

Requests for amendments to development of regional impact development orders pursuant to F.S. § 380.06(7) do not require a public hearing before the Hearing Examiner. After review of the application, staff will prepare a report and recommendation including an analysis of consistency with the Lee Plan and this Code. New conditions proposed by staff must be consistent with F.S. § 380.06(7)(b). The staff report and application material will be sent to the Hearing Examiner for preparation of a written recommendation to the Board. The Hearing Examiner may request additional documentation from staff and the applicant.

The Hearing Examiner will issue a written recommendation to the Board within 14 days from receipt of the staff report or requested documents. The Hearing Examiner's recommendation must include a finding on whether the proposed amendment is consistent with the Lee Plan and this Code. New conditions recommended by the Hearing Examiner must be consistent with F.S. § 380.06(7)(b).

The Hearing Examiner and staff recommendations will be presented to the Board at a public hearing.

(8)

Conditions of approval.

Except as provided in Subsection (d)(8)d of this section, any applicant or County staff request for the Board to consider changes to conditions of approval recommended by the Hearing Examiner must be submitted in writing to the Hearing Examiner no later than 21 working days prior to the scheduled public hearing before the Board.

The Hearing Examiner will consider the basis for the requested change and may issue a memorandum in response, without further hearing, either approving or denying the requested changes. If the Hearing Examiner determines that additional competent substantial evidence is needed to support the proposed changes, the proposed changes are outside the scope of the testimony in the record, or that modifications of the proposed conditions materially alter the Hearing Examiner's recommendation, the Hearing Examiner may recommend that the Board deny the requested changes or remand the case back to the Hearing Examiner to reopen the testimony portion of the Hearing and schedule the matter for further public hearings as needed. Notice of the new hearing date will be provided to the participants of record and parties. Testimony by the parties and public participants will be limited to the requested changes to the conditions of approval.

If an applicant or County staff fails to submit the request for changes as required in Subsection (d)(8)a of this section, the Board may continue the case to a date certain to allow the Hearing Examiner to review the request, remand the case to the Hearing Examiner for further consideration of the requested changes, or deny the requested changes.

This Subsection (d)(8) does not apply to requests for scrivener's errors, changes resulting from the Board's decision not to adopt the Hearing Examiner's recommendation or portions thereof, changes requested by the Board or public participants at the public hearing before the Board, or changes requested by the County Attorney's office to remove unenforceable conditions or to ensure the proposed conditions comply with State or federal law.

(e)

Notice of intent to deny based on insufficient information. If the Hearing Examiner intends to deny or recommend denial of an application/appeal described in Subsections (a) through (d) of this section based on the applicant's/appellant's failure to provide evidence adequate to address particular issues, the Hearing Examiners may send a notice of intent to deny based on insufficient evidence to all parties and participants or reopen the hearing. The procedure for issuing the notice and the responses to the notice are set forth in the Administrative Codes.

(f)

The Hearing Examiner is limited to the authority granted within County regulations. The authority granted to the Hearing Examiner under this section is limited to the actions identified above. Under no circumstances shall the provisions of this section be construed to grant additional authority or expand upon authority granted to the Hearing Examiner. The powers and authority granted to the Hearing Examiner in Code Enforcement matters are separate and distinct from those granted herein.

(LDC 1994, § 34-145; Zoning Ord. 1993, § 900.02; Ord. No. 93-14, § 6, 4-21-1993; Ord. No. 94-24, §§ 7—11, 8-31-1994; Ord. No. 95-07, § 13, 5-17-1995; Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 96-17, § 5, 9-18-1996; Ord. No. 99-22, § 3, 12-14-1999; Ord. No. 00-14, § 5, 6-27-2000; Ord. No. 03-11, § 1, 4-8-2003; Ord. No. 03-16, § 6, 6-24-2003; Ord. No. 08-21, § 3, 9-9-2008; Ord. No. 09-23, § 10, 6-23-2009; Ord. No. 10-25, § 4, 6-8-2010; Ord. No. 11-08, § 10, 8-9-2011; Ord. No. 13-10, § 10, 5-28-2013; Ord. No. 15-15, § 1, 11-17-2015; Ord. No. 16-09, § 4, 4-5-2016; Ord. No. 16-10, § 3, 4-5-2016; Ord. No. 16-19, § 10, 11-15-2016; Ord. No. 17-11, § 1, 9-5-2017; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 22-11, § 8(34-145), 5-17-2022; Ord. No. 22-24, § 2(34-145), 9-6-2022; Ord. No. 24-14, § 8, 10-1-2024; Ord. No. 25-09, § 5, 4-15-2025)

Sec. 34-146. - Final decision; judicial review.

(a)

Judicial review of final decisions of the Hearing Examiner will be in circuit court. This review may only be obtained by filing a petition for writ of certiorari in accordance with the Florida Rules of Appellate Procedure. The petition must be filed within 30 calendar days after the final decision has been rendered.

(b)

A decision is rendered on the date it is reduced to writing, signed and dated by the Hearing Examiner.

(c)

The person making application to the Hearing Examiner is a necessary and indispensable party to actions seeking judicial review.

(d)

This section does not preclude actions pursuant to F.S. § 70.51 or 163.3215.

(LDC 1994, § 34-146; Zoning Ord. 1993, § 902.02(B); Ord. No. 94-24, § 12, 8-31-1994; Ord. No. 95-07, § 14, 5-17-1995; Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 01-03, § 5, 2-27-2001; Ord. No. 03-11, § 1, 4-8-2003; Ord. No. 03-16, § 6, 6-24-2003; Ord. No. 15-15, § 1, 11-17-2015; Ord. No. 16-10, § 3, 4-5-2016; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 22-11, § 8(34-146), 5-17-2022)

Sec. 34-171. - Appointment of Director.

The County Manager will appoint the Director of the Department of Community Development.

(LDC 1994, § 34-171; Zoning Ord. 1993, § 905.01; Ord. No. 19-03, § 7, 4-2-2019)

Sec. 34-172. - Powers and duties.

(a)

Administration of zoning regulations. The Director is hereby authorized, empowered and directed to administer all the provisions of this chapter and any subsequent amendments thereto.

(b)

Authority to interpret provisions. The Director, in conjunction with the County Attorney's Office as necessary, has the discretion consistent with this chapter and accepted rules of statutory construction to interpret and apply these provisions.

(c)

Application of zoning regulations. No building or structure, or part thereof, may be erected, constructed, reconstructed or altered, and no existing use, new use or change of use of any building, structure or land, or part thereof, may be made or continued except in conformity with the provisions of this chapter.

(d)

Issuance of permits. When a permit application furnishes all of the information and fulfills all of the requirements that are conditions precedent to the granting of the permit, the Director may issue the permit.

(e)

Authority to issue stop work orders. The Director, after consultation with the County Attorney's Office, has the authority to issue a stop work order on property that is the subject of a violation of the provisions of this Code. The stop work order may continue until the violation is resolved to the satisfaction of the County.

(f)

Authority to issue cease and desist orders. The Director, after consultation with the County Attorney, has the authority to issue cease and desist orders on property being used in violation of the provisions of this Code. The cease-and-desist order may continue until the violation is resolved to the satisfaction of the County.

(g)

Authority to issue temporary use permits. The Director is authorized to permit temporary uses upon receipt of a complete application.

(LDC 1994, § 34-172; Zoning Ord. 1993, § 905.02; Ord. No. 08-21, § 3, 9-9-2008; Ord. No. 09-23, § 10, 6-23-2009; Ord. No. 19-03, § 7, 4-2-2019)

Sec. 34-173. - Authority to permit uses pending a zoning action.

(a)

The Director is authorized to permit proposed uses that are not permitted on a subject parcel for a period of not more than 180 days under the following circumstances:

(1)

An application for a rezoning or a special exception has been filed for the subject parcel that would, if approved, make the requested use a permitted use;

(2)

The requested rezoning or special exception, in the opinion of the Director, is clearly compatible with the neighboring uses and zoning and is consistent with the Lee Plan;

(3)

No new principal structures are to be constructed on the subject property; and

(4)

The applicant agrees in writing that the proposed use will cease within 180 days unless the Board of County Commissioners or Hearing Examiner, whichever is applicable, has rendered a final decision approving the requested rezoning or special exception. At the discretion of the Director, the approval may be extended up to an additional 90 days.

(b)

The Director's decision to allow the use does not guarantee the use will ultimately be approved through the applicable public hearing process.

(c)

Upon expiration of the approval, the property may only be used in compliance with the underlying zoning regulations.

(d)

Decisions by the Director pursuant to this section are discretionary and may not be appealed pursuant to Section 34-145(a).

(LDC 1994, § 34-173; Ord. No. 19-03, § 7, 4-2-2019)

Sec. 34-174. - Authority to approve administrative actions.

(a)

Administrative variances.

(1)

Authority. The Director is authorized to administratively approve variances of the following:

Street, rear, side, or waterbody setbacks to allow:

Remodeling of, or additions to, existing structures that are nonconforming with regard to a specific setback so long as the remodeling or addition will not result in:

An increase in the height of the structure; or

ii.

A further diminution of the setback. The Director may approve bay windows, chimneys and similar architectural features that may encroach further into the setback, provided the encroachment does not protrude beyond the existing overhang of the building.

Construction of access appurtenant to an existing structure for disabled persons.

Replacement of stairs or decking that provide access into an existing dwelling unit.

Buildings or structures that:

Encroach into the required setbacks due to minor errors at time of construction.

ii.

Are not in compliance with current setback regulations and can be proven to have been permitted.

Construction of a single-family dwelling unit on lots with an approved minimum use determination, provided the lot coverage does not exceed 45 percent.

Requirements of Chapters 10, 30, 33, and 34 necessary for development of property subject to a Lee County initiated eminent domain proceeding pursuant to Section 1-16.

Setbacks in conventional zoning districts where the encroachment is ten percent or less of the minimum required setback for proposed buildings.

Chapter 34 requirements that are necessary to facilitate development of existing nonconforming buildings or structures that have lost their nonconforming status pursuant to Section 34-3242(2) and/or Chapter 30 requirements for signs that have lost their nonconforming status pursuant to Section 30-55(b)(2). Administrative variances granted pursuant to this section may only be granted to the extent that the variance is the minimum that will bring the site into compliance with this Code given the existing site constraints. Nonconforming open space, buffering and landscaping are subject to the regulations of Section 10-416 and must be brought into conformance to the maximum extent possible.

Landscaping required by Section 34-1743(b)(3) to allow existing, required or optional nonconforming residential project walls to be repaired or replaced.

Property development regulations for all religious facilities and places of worship provided in Section 34-2051(a) for properties zoned residential and located in a platted subdivision.

Requirements of Chapters 30, 33 and 34 found by the Director to be similar in nature, which are not contrary to the Lee Plan and do not diminish public health, safety, and welfare.

(2)

Findings/review criteria. Before approving any administrative variance, the Director must find the following review criteria are satisfied:

There are exceptional or extraordinary conditions or circumstances that are inherent to the property in question;

The variance granted is the minimum variance that will relieve the applicant of an unreasonable burden caused by the application of the regulation in question to the property; and

The granting of the variance will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

(b)

Administrative approval of on-premises consumption of alcoholic beverages.

(1)

Authority. The Director is authorized to administratively approve the sale or service of alcoholic beverages for consumption on-premises when in conjunction with the uses provided in Section 34-1264(a)(1).

(2)

Findings/review criteria. Before approving the sale or service of alcoholic beverages for consumption on-premises, the Director must find there will be no apparent adverse impact on surrounding properties within 500 feet of the premises.

(c)

Administrative approval of new antenna-supporting structures.

(1)

Authority. The Director is authorized to administratively approve new antenna-supporting structures as provided by Article VII, Division 11 of this chapter.

(2)

Findings/review criteria. Before approving new antenna-supporting structures, the Director must make all of the following findings (or conclude that a finding is not applicable):

The applicant is not able to use existing wireless communications facility sites in the geographic search area;

The proposed antenna-supporting structure will not be injurious to historical resources, or reduce the quality and function of natural or manmade resources; and

The applicant has agreed to implement all reasonable measures to mitigate the potential adverse impacts of the structures and facilities.

(d)

Administrative approval of model homes, model units and model display centers.

(1)

Authority. The Director is authorized to administratively approve model homes, model units and model display centers when in compliance with Section 34-1954 or 34-1955, as applicable.

(2)

Findings/review criteria. Before approving model homes, model units or model display centers, the Director must find the following review criteria are satisfied:

For model homes and model units, the property is located within a new development under unified control.

For model display centers, the property is zoned RPD, MHPD, RVPD or MPD.

(e)

Administrative approval of reduced parking for nonresidential uses.

(1)

Authority. The Director is authorized to administratively approve a reduction to the minimum required number of parking spaces for nonresidential uses by a maximum of ten percent.

(2)

Findings/review criteria. Before approving any administrative reduction to the minimum required number of parking spaces for nonresidential uses, the Director must find the following review criteria are satisfied:

One or more of the conditions provided in Section 34-2020(c) exist; and

There will be no adverse impact on surrounding properties or on the public health, safety and welfare.

(f)

Administrative approval for existing commercial and industrial developments.

(1)

Authority. The Director is authorized to administratively approve relief from minimum required setbacks and lot area, width and depth to allow subdivision of commercial and industrial lots.

(2)

Findings/review criteria. Before approving a subdivision of existing commercial or industrial developments, the Director must find the following review criteria are satisfied:

The overall development complies with all applicable zoning requirements notwithstanding the noncompliance with property development regulations in Chapter 34, and Chapter 10 of the individual lots within the subdivision.

In the event that the individual lots will not have direct access to a publicly accessible street, the applicant has demonstrated how access to such lots will be accomplished via common areas.

In the event individual lots will not comply with minimum open space requirements, the applicant has demonstrated how the required open space requirement for the overall development will be satisfied via common areas.

All common elements of the overall development are subject to unified control and will be perpetually maintained through a property owners association. The common elements include, but are not limited to, streets and accessways, off-street parking, water management facilities, buffering, fences or walls, and open space.

There will be no apparent deleterious effect upon surrounding properties or the immediate neighborhood.

(g)

Administrative approval of Ordinance No. 86-36 lot combination.

(1)

Authority. The Director is authorized to administratively approve amendments to site plans for mobile home or recreational vehicle parks approved by Lee County Ordinance No. 86-36.

(2)

Findings/review criteria. Before approving an amendment to a site plan approved by Ordinance No. 86-36, the Director must find the following review criteria are satisfied:

The amended site plan does not increase the number of lots in the park.

There will be no adverse impact on surrounding properties.

(h)

Administrative approval of deviations from Chapters 10 and 33.

(1)

Authority. The Director is authorized to administratively approve deviations from technical standards in Chapter 10, limited to those listed Section 10-104, and from certain provisions, as specified, in Chapter 33.

(2)

Findings/review criteria. Before approving a deviation, the Director must find the following review criteria are satisfied:

For Chapter 10 deviations:

The request is based on sound engineering practices (not applicable to Sections 10-352, 10-353 and Division 7, Article III, Chapter 10);

The request is no less consistent with the health, safety and welfare of abutting landowners and the general public than the standard from which the deviation is being requested;

The granting of the deviation is not inconsistent with any specific policy directive of the Board of County Commissioners, any other ordinance or any Lee Plan provision; and

For Division 7, Article III, Chapter 10, the required facility would unnecessarily duplicate existing facilities;

For Sections 10-352 and 10-353, the utility that would otherwise serve the development cannot provide the service at the adopted level of service standard due to an inadequate central facility.

For Chapter 33 deviations, additional criteria, if specified within Chapter 33, must be met.

(i)

Administrative amendment to a planned development.

(1)

Authority. The Director is authorized to administratively approve an amendment to a planned development pursuant to Section 34-380.

(2)

Findings/review criteria. Before approving any administrative amendment to a planned development, the Director must find the request:

Does not increase height, density or intensity of the development, except as permitted in Chapter 2.

Does not result in the substantial underutilization of public resources and public infrastructure committed to the support of the development;

Does not result in a reduction of total open space provided on the Master Concept Plan by more than ten percent;

Does not decrease the amount of indigenous native vegetation preservation or open space areas below the amount required by the Code;

If changes to the buffer or landscaping areas are proposed, equivalent or better (by comparison with the approved Master Concept Plan) landscaping or buffering is provided;

Does not adversely impact surrounding land uses; and

Is consistent with all applicable provisions of the Lee Plan and land development regulations in effect at the time of the amendment request.

(j)

Administrative amendment to a planned development located in the Mixed-Use Overlay.

(1)

Authority. The Director is authorized to administratively approve an amendment to a planned development on property located in the Mixed-Use Overlay to facilitate redevelopment or infill development.

(2)

Findings/review criteria. Before approving any administrative amendment to a planned development, the Director must find the request:

Will allow for internal capture of vehicular trips;

Will provide for connections to adjacent uses;

Will allow for urban forms of development and a variety of uses;

Will not result in the substantial underutilization of public resources and public infrastructure committed to the support of the development;

Will not decrease the amount of indigenous native vegetation or preservation area below the amount required by Code;

Will not adversely impact surrounding land uses; and

Is consistent with applicable provisions of the Lee Plan and land development regulations in effect at the time of the amendment request.

(k)

Administrative approval of boathouses and dock pavilions.

(1)

Authority. The Director is authorized to administratively approve increases in (1) roofed area and height of boathouses; and (2) roofed area of dock pavilions associated with a single-family dock authorized under Section 26-74.

(2)

Findings/review criteria. Before approving an increase in the roofed area or height of a boathouse, the Director must find the criteria for approval of a special exception established in Subsections 34-145(c)(3)a. and e. are satisfied.

(l)

Decisions of Director.

(1)

The Director may administratively approve a request in accordance with the provisions above with conditions as necessary for the protection of the health, safety, and welfare of the general public. Conditions must be reasonably necessary to effectuate the intent and purpose of this Code and other applicable regulations.

(2)

Decisions by the Director pursuant to this section are discretionary and may not be appealed in accordance with Subsection 34-145(a).

(3)

If the County determines that an administrative action was approved based on inaccurate or misleading information or if the approval did not comply with this Code when the decision was rendered, then, at any time, the Director may issue a modified approval that complies with the Code or revoke the administrative approval.

(4)

If a request for an administrative action is denied, revoked, or an applicant disagrees with the conditions imposed, the applicant must seek approval by filing an application for public hearing in accordance with Article II or Article IV of this chapter.

(LDC 1994, § 34-174; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 20-01, § 3, 1-21-2020; Ord. No. 25-18, § 2, 9-16-2025)

Sec. 34-201. - Application requirements for public hearing and administrative actions.

(a)

Initiation of application. An application for a rezoning, mine excavation planned development under chapter 12, special exception, or variance may be initiated by:

(1)

A landowner, or his authorized agent, for his own property. Where there is more than one owner, either legal or equitable, then all owners must jointly initiate the application or petition. Provided, however, that:

This does not mean that both a husband and wife must initiate the application on private real property which is owned by them.

Where the property is subject to a land trust agreement, the trustee may initiate the application.

Where the fee owner is a corporation, any duly authorized corporate official may initiate the application.

Where the fee owner is a partnership, a general partner may initiate the application.

Where the property is a condominium, timeshare condominium, or homeowners' association as defined and regulated in F.S. chs. 718, 720, and 721, respectively, an application or petition applicable to association property including but not limited to common elements, common area, or future development, may be initiated by the association's president, manager or equivalent when authorized by a resolution of the association's governing body or by previously recorded association documents.

In addition to the authorization required under subsection e, applications that include property that is individually owned by homeowners, condominium unit owners, or timeshare unit owners must be accompanied by a letter of opinion from a licensed Florida attorney, who must attest that he has examined the declaration of condominium, the bylaws of the condominium or homeowners' association documents, and all other relevant legal documents or timeshare documents, as applicable, and concluded that the act of applying or petitioning to the County violates none of the provisions therein, or any federal or state law regulating condominiums, timeshare plans, or homeowners associations, or the rights of any of the unit/homeowners owners, as derived from such documents and laws, and that approval of the requested act by the County would violate no such rights.

Where the application is applicable to property that is a subsequent phase or development tract located within a development, including but not limited to, a condominium, timeshare condominium, or homeowners' association as defined and regulated in F.S. chs. 718, 720, and 721, respectively, an application or petition may be initiated by the property owner(s) of the subsequent phase or development tract.

(2)

The County, which for purposes of this section means the Board of County Commissioners.

(b)

Abutting properties. All properties within a single application must be abutting unless the Director determines, in his or her sole discretion, that there is a rational relationship between the properties in question.

(c)

Waivers. Upon written request, on a form prepared by the County, the Director may modify the submittal requirements where it can be demonstrated by the applicant that the submission will have no bearing on the review and processing of the application. The decision of the Director is discretionary and may not be appealed.

(d)

Filing fee. All fees, in accordance with the County's External Fees and Charges Manual, must be paid in full at the time the application is submitted. No review of the application will commence until payment is received.

(LDC 1994, § 34-201; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 23-22, § 3, 9-5-2023)

Sec. 34-202. - Submittal requirements for applications requiring public hearing.

(a)

Submittal requirements for all public hearing applications. All applications for public hearing requests must include the following. Any additional expenses due to inaccurate or incomplete information will be borne by the applicant.

(1)

Application form. Applications will only be accepted on official forms provided by the Department.

(2)

Ownership interests. An affidavit, signed by the property owner or contract purchaser, must be submitted stating whether a Lee County Employee, County Commissioner, or Hearing Examiner has an ownership interest in the property or any legal entity (corporation, company, partnership, limited partnership, trust, etc.) that has an ownership interest in the property or that has contracted to purchase the property. Disclosure with respect to a beneficial ownership interest in any entity registered with the Federal Securities Exchange Commission or registered pursuant to Chapter F.S. Ch. 517, whose interest is for sale to the general public, is exempt from this provision.

(3)

Applicant's statement. Notwithstanding the requirements of Section 34-201(a)(1)a, the applicant must sign a statement, under oath, that he is the owner or the authorized representative of the owner of the property and that he has full authority to secure the approval requested and to impose covenants and restrictions on the referenced property as a result of the action approved by the County in accordance with this Code. This must also include a statement that the property owner will not transfer, convey, sell or subdivide the subject parcel unencumbered by the covenants and restrictions imposed by the approved action.

(4)

Agent authorization. The applicant may authorize agents to assist in the preparation and presentation of the application. Any agent authorized by the applicant will be deemed to have the authority to bind the property with respect to conditions.

(5)

Legal description and sketch to accompany legal description. A metes and bounds legal description along with a sketch of the legal description, prepared by a Florida Licensed Surveyor and Mapper, must be submitted, unless the property consists of one or more undivided lots within a subdivision platted in accordance with F.S. Ch. 177. If the subject property is one contiguous parcel, the legal description must specifically describe the entire continuous perimeter boundary of the property subject to the zoning action with accurate bearings and distances for every line. If the application seeks to rezone undivided, platted lots, then a complete legal description (i.e., lot, block, subdivision name, public records recording information) of the platted subject property is required. A sketch of the undivided, platted lots to be rezoned is not required. The Director has the right to reject any legal description that is not sufficiently detailed so as to locate the property on County maps.

(6)

Boundary survey. A boundary survey of the subject property must be submitted, unless the property consists of one or more undivided lots within a subdivision platted in accordance with F.S. Ch. 177. The survey must be based upon the title certification submitted in accordance with Section 34-201(a)(7) and certified to the present owner as reflected in the title documentation submitted in accordance with Section 34-201(a)(7). The boundary survey must identify and depict all easements affecting the subject property, whether recorded or unrecorded, and all other physical encumbrances readily identified by a field inspection.

All boundary surveys must meet the minimum technical standards for land surveying in the State, as set out in F.A.C. Ch. 5J-17. The survey must be tied to the State plane coordinate system for the Florida West Zone (the most current adjustment is required) with two coordinates, one coordinate being the point of beginning (POB) and the other an opposing corner. The perimeter boundary must be clearly marked with a heavy line and must include the entire area to be developed.

If the subject property consists of one or more undivided lots within a subdivision, then a copy of the subdivision plat may be submitted in lieu of the boundary survey. However, if the dimensions of the subject property differ from those in the original plat, then a boundary survey, including a metes and bounds legal description, will be required.

(7)

Certification of title and encumbrances. Certification of title and encumbrances submitted for property subject to zoning approval must meet the following criteria:

Form. The certification of title must be in one of the following forms:

Title certificate or title opinion, no greater than 90 days old at the time of the initial application submittal. The title certification submittal must be either an opinion of title meeting the Florida Bar Standards prepared by a licensed Florida attorney or a certification of title/title certification prepared by a title abstractor or company.

ii.

Title insurance policy with appropriate schedules, no greater than five years old at the time of the initial zoning case submittal and an affidavit of no change covering the period of time between issuance of the policy and the application date. If submission of a complete affidavit of no change is not possible, a title certificate, or title opinion must be submitted in the alternative.

Content. The certification of title must include, at a minimum, the following:

The name of the owner of the fee title.

ii.

All mortgages secured by the property;

iii.

All easements encumbering the property;

iv.

The legal description of the property; and

The certification of title documentation must be unequivocal.

(8)

Property owners list. A complete list of all owners of the property and their mailing addresses. If multiple parcels are involved, a map showing the owners interest must be provided. Names and addresses of property owners must be those appearing on the current Lee County tax rolls.

(9)

Surrounding property owners list and map. A complete list, map, and one set of mailing labels, of property owners, and their mailing addresses, for all properties within 500 feet (1,000 feet for wireless communications facilities applications) of the perimeter of the property, or the portion thereof, that is the subject of the request. In those instances where fewer than ten owners of property would be notified, the distance must be expanded to include all owners of property within 750 feet (1,250 feet for wireless communication facilities). Names and addresses of property owners must be those appearing on the current Lee County tax rolls. When the application is found sufficient, the applicant is required to submit a new list and mailing labels.

(10)

Proof of potable water and sanitary sewer availability. A letter from the appropriate utility provider verifying their ability to provide service to the proposed development. If service is not available, the applicant must indicate how the potable water and sanitary sewer needs for the project will be met.

(11)

Bonus density. When applicable, the resulting gross residential density and number of bonus density units requested. The application must demonstrate compliance with the review criteria required by Section 2-146.

(12)

Existing agricultural use affidavit. If the property owner intends to continue an existing agricultural use subsequent to zoning approval, an affidavit signed by the property owner and sworn before a notary must be submitted. The affidavit must consist of:

(1)

A statement as to the specific type and location of the agricultural uses existing on the property at the time of the application; and

(2)

A sketch of the property, in metes and bounds, identifying the location and type of ongoing agricultural uses.

(13)

Wireless communication facilities. If a wireless communication facility is a proposed use, the applicant must provide the information required in Section 34-1441 et seq.

(b)

Additional submittal material. Additional information, specific to the type of actions requested, is required as follows:

(1)

Developments of regional impact. Developments of regional impact must provide the additional information required by Section 34-204.

(2)

Planned developments. Planned developments must provide the additional information required by Section 34-373.

(3)

Rezonings, other than planned developments. A statement explaining the nature of the request, how the property qualifies for the rezoning, and how the request meets the applicable required findings/review criteria set forth in Section 34-145(d)(4). This statement may be utilized by the Board of County Commissioners, Hearing Examiner and staff in establishing a factual basis for the approval or denial of the rezoning.

(4)

Rezoning of mobile home parks. Rezoning of an existing mobile home park, as defined in F.S. § 723.003, which will result in the removal or relocation of mobile homeowners, the applicant must demonstrate compliance with F.S. § 723.083.

(5)

Special exceptions. Applications for special exceptions must include the following:

A statement explaining the request, how the property qualifies for the special exception, and how the request meets the applicable required findings set forth in Section 34-145(c)(3). This statement may be utilized by the Hearing Examiner and staff in establishing a factual basis for approval or denial of the special exception.

A traffic impact analysis of projected trip generation.

A site plan, drawn to scale, depicting:

Location and current use of existing structures.

Location of proposed structures and/or uses.

Location of existing and proposed road rights-of-way, streets, easements or land reservations.

Location of vehicular access to and from the site.

Other information required for analysis of the request as determined by the Director.

Additional information is required for the following special exception requests:

Solar or wind energy modifications. Evidence that the proposed modifications are the minimum necessary to provide for the solar or wind energy proposal and that the proposed modifications will not adversely affect adjacent properties.

On-premises consumption of alcoholic beverages. The type of license requested, a floor plan showing the proposed indoor and outdoor service areas, and if in conjunction with a restaurant, a copy of the menu must be provided. A traffic impact analysis of projected trip generation for the development is not required for special exceptions solely for consumption on premises.

Private aircraft landing facilities.

Type of facility as set forth in Florida Administrative Code.

ii.

Site plan depicting the proposed location and dimensions of the effective landing length, including the approach zone.

iii.

An affidavit that written notice of the public hearing will be sent by certified mail, return receipt requested, to all airports and municipalities within 15 miles of the proposed facility and to all property owners within 1,000 feet of the property or within the minimum required approach zone, whichever is greater. The applicant will be responsible for sending the written notice and will bear the cost of the notification.

Dock and shoreline structures. A dimensioned plan view of the structures subject to the request, scaled architectural elevations demonstrating the proposed height above mean high water, and a benthic species survey assessment as defined in Section 26-41.

(6)

Variances. All applications for a variance must also submit the following:

A statement that includes the section number and particular regulation from which a variance is requested, how the property qualifies for the variance, and how the request meets the applicable required findings set forth in Section 34-145(b)(3).

A site plan, drawn to scale, detailing:

Existing public streets, easements or other reservations of land within the site;

All existing and proposed structures on the site; and

The location of the proposed variance.

Any other reasonable information which may be required by the Department which is commensurate with the intent and purpose of this Code.

Street setbacks on collector and arterial roads. In the case of a variance from required street setbacks on collector and arterial roads, in addition to the above, the following must be submitted:

A modified property owners list and property owners map (see Subsection (a)(9) and (10) of this section) to show only the names and locations of property owners that abut the perimeter of the subject property.

A site plan, drawn to scale, showing:

The location of all proposed structures, easements, rights-of-way and vehicular access onto the property, including entrance gates or gatehouses; and

ii.

The extent of modification from street setbacks requested.

(LDC 1994, § 34-202; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 21-08, § 9, 6-1-2021; Ord. No. 22-24, § 2(34-202), 9-6-2022)

Sec. 34-203. - Submittal requirements for administrative action applications.

(a)

Generally. Every request for an administrative action under this chapter must include the following:

(1)

Application form. Applications will only be accepted on official forms provided by the Department.

(2)

Ownership interests. An affidavit, signed by the property owner or contract purchaser, must be submitted stating whether a Lee County Employee, County Commissioner, or Hearing Examiner has an ownership interest in the property or any legal entity (corporation, company, partnership, limited partnership, trust, etc.) that has an ownership interest in the property or that has contracted to purchase the property. Disclosure with respect to a beneficial ownership interest in any entity registered with the Federal Securities Exchange Commission or registered pursuant to F.S. Ch. 517, whose interest is for sale to the general public, is exempt from this provision.

(3)

Applicant's statement. Notwithstanding the requirements of Section 34-201(a)(1)a., the applicant must sign a statement, under oath, that he is the owner or the authorized representative of the owner of the property and that he has full authority to secure the approval requested and to impose covenants and restrictions on the referenced property as a result of the action approved by the County in accordance with this Code. This must also include a statement that the property owner will not transfer, convey, sell or subdivide the subject parcel unencumbered by the covenants and restrictions imposed by the approved action.

(4)

Agent authorization. The applicant may authorize agents to assist in the preparation and presentation of the application. The County will presume that any agent authorized by the applicant has the authority to bind the property with respect to conditions.

(5)

STRAP (Section, Township, Range, Area, Parcel) number for the subject property. This number is used by the Property Appraiser to identify the subject property. If the subject property includes a portion of property within one STRAP, then in addition to the STRAP number, a metes and bounds legal description must also be submitted as follows:

A metes and bounds legal description along with a sketch of the legal description, prepared by a Florida Licensed Surveyor and Mapper, must be submitted, unless the property consists of one or more undivided lots within a subdivision platted in accordance with F.S. Ch. 177. If the subject property is one contiguous parcel, the legal description must specifically describe the entire continuous perimeter boundary of the property subject to the zoning action with accurate bearings and distances for every line. If the application seeks to rezone undivided, platted lots, then a complete legal description (i.e., lot, block, subdivision name, public records recording information) of the platted subject property is required. The Director has the right to reject any legal description that is not sufficiently detailed so as to locate the property on County maps.

(6)

Approval criteria. A written justification, with support documentation as appropriate, to demonstrate the action requested meets the applicable criteria set forth in Section 34-174 for granting administrative approval.

(7)

Letters of no objection. Letters of no objection from adjacent property owners, including those separated from the subject property by any right-of-way or easement, as required by the Director.

(8)

Site plan. A detailed site plan, drawn to scale, showing:

The subject property and development parameters (such as existing and proposed lot lines, buildings keyed to proposed uses, streets and accessways, off-street parking, water management facilities, buffering and open space);

Public entrances to, and exits from, the building; and

Any additional details deemed necessary by the Director.

(b)

Additional submittal requirements. In addition to the application requirements provided in Subsection (a) of this section, the following submittal requirements apply, as specified.

(1)

On-premises consumption of alcoholic beverages.

Type of State liquor license being requested and anticipated hours for the sale and service of alcoholic beverages.

The floor plan of the building or unit and proposed seating arrangement. If a restaurant is proposing a bar or lounge for patrons waiting to be seated in the restaurant, the floor area and seating area of the lounge must be shown in addition to the restaurant seating area.

A sworn statement indicating whether any religious facilities, day care centers (child), noncommercial schools, dwelling units or parks are located within 500 feet of the building or unit.

For restaurants, a copy of the proposed menu.

(2)

Parking reduction.

A list of all the uses the parking supports, the total floor area for each use, the number of parking spaces required, and the number of parking spaces proposed.

The peak parking demands for each use demonstrating that no part of a parking lot intended to satisfy required parking for a use is used to offset the parking requirements for another use unless the peak parking demands occur at different times.

When reduced parking is requested pursuant to Section 34-2020(c)(6) a parking demand study must be provided.

(3)

Administrative variance. A detailed list of the section numbers and the specific regulations from which relief is sought, keyed to the site plan.

(4)

Commercial lot split.

A detailed list of the section numbers and the specific regulations from which relief is sought, keyed to the site plan.

Pertinent calculations which demonstrate that the overall development complies with applicable zoning and development standards, except where relief is sought.

Demonstrate means of access to each lot within the overall development.

Documents, satisfactory to the County, assuring that all common elements of the overall development will be perpetually maintained through a property owners association. Common elements may include, but are not limited to, streets and accessways, off-street parking, water management facilities, buffering, fences or walls, and open space.

(5)

Wireless communication facilities. Additional information pursuant to Section 34-1446.

(6)

Boathouses and dock pavilions.

A dimensioned plan view of the structures subject to the request.

A benthic species survey assessment, as defined in Section 26-41, if the proposed location of the boathouse abuts or is located within a natural body of water.

Scaled architectural elevations demonstrating the proposed height above mean high water.

A site plan prepared in accordance with the requirements of Sections 34-203(a)(8) and 26-45(b)(6).

(LDC 1994, § 34-203; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 20-01, § 3, 1-21-2020; Ord. No. 25-18, § 2, 9-16-2025)

Sec. 34-204. - Submittal requirements for developments of regional impact.

(a)

Developments of regional impact (DRI) are subject to the requirements and procedures established in F.S. § 380.06 applicable State rules as they may be amended. In the event of conflict between the provisions of this chapter and the requirements of F.S. § 380.06 the requirements and processes of F.S. § 380.06 will prevail.

(b)

Submittal requirements for all Development of Regional Impact applications. Every request for action to a Development of Regional Impact must include the following:

(1)

General application. A general application for public hearing in accordance with the requirements set forth in Sections 34-201 through 34-203.

(2)

A single narrative explaining the nature of the request and how the property qualifies for the proposed action to the DRI. This narrative should include how the proposed action complies with the statutory requirements found in F.S. § 380.06 and applicable State rules. This narrative may be utilized by the Board of County Commissioners and staff in establishing a factual basis for granting or denial of the rezoning.

(3)

A list of each condition and developer commitment contained in the DRI development order (DO) and a statement demonstrating how and when each condition/commitment was or will be fulfilled.

(4)

A summary of the total development built and total development remaining for each land use category. Identify the geographic location of parcels with remaining unbuilt development entitlements and the nature of those entitlements.

(5)

Demonstration of notification to all property owners within the DRI.

(6)

The most recent Master Plan (Map H).

(7)

A draft resolution to be executed by the Board which sets forth the following information:

The history of development within the DRI, including amendments to the DRI DO, and the current status of development within the DRI;

A statement confirming the public notice that was provided for consideration of the DRI development order action;

A statement regarding compliance with F.S. Ch. 380 and other applicable Florida Statutes, local development regulations, and Lee Plan provisions, including findings that the requirements of Subsections (a) and (b) of this section have been met; and

A provision incorporating and adopting the proposed amendments to the DRI DO consistent with the State statute, including all DRI DO conditions to remain in effect (if any) after adoption DRI DO action.

(c)

Applications requesting rescission or abandonment of a DRI will not be considered to be found sufficient if any of the parcels located within the DRI DO contains unabated code enforcement violations.

(d)

Review of all Development of Regional Impact applications is subject to the policies and procedures set forth in F.S. § 166.033.

(LDC 1994, § 34-204; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 21-08, § 9, 6-1-2021)

Sec. 34-205. - Denials and resubmission of applications.

(a)

Denial with prejudice.

(1)

Except when specifically stated otherwise, a denial by the Hearing Examiner or Board of County Commissioners is a denial with prejudice.

(2)

If an application is denied, no similar application for rezoning, mine excavation planned development, special exception or variance covering the same property, or portion of the property, shall be resubmitted or initiated for a period of 12 months from the date of denial. However, this shall not preclude the application for a different rezoning, special exception or variance which in the opinion of the Administrative Official is substantially different from the request originally denied.

(b)

Denial without prejudice.

(1)

When the Hearing Examiner or Board of County Commissioners denies without prejudice any application, it is an indication that, although the specifically requested action is denied, the Hearing Examiner or Board is willing to consider the same request after modifications have been made, or an application for other action, without the applicant having to wait 12 months before applying for consideration of the modified request or other action.

(2)

Any resubmitted application shall clearly state the modifications which have been made to the original request or other changes made in the application.

(LDC 1994, § 34-205; Ord. No. 19-03, § 7, 4-2-2019)

Sec. 34-231. - Public participation.

(a)

Participation before Local Planning Agency. At a public hearing before the Local Planning Agency, all persons will be heard. However, the Local Planning Agency has the right to refuse to hear testimony that is irrelevant, repetitive, defamatory or spurious, and to establish reasonable time limits on testimony.

(b)

Participation before Board; zoning matters. At public hearings on zoning matters, only the parties, the Hearing Examiners, and participants at the proceeding before the Hearing Examiner may address the Board. This prohibition does not apply to the Board's legal counsel, County staff whose sole purpose is to facilitate the zoning hearing, or legal counsel representing a party or hearing participant. The testimony presented to the Board will be limited to:

(1)

Testimony presented to the Hearing Examiner.

(2)

Presentation of the Hearing Examiner's recommendation.

(3)

Testimony concerning the correctness of the findings of fact or conclusions of law contained in the record.

(4)

Allegations that relevant new evidence has been discovered that was not known or could not have been reasonably discovered by the speaker at the time of the hearing before the Hearing Examiner.

During the public hearing, the Board may question its staff, its attorneys, the applicant/appellant, the Hearing Examiner authorizing the report, and the participants present about matters in the written report and record and points of law or procedure.

(c)

Participation before the Hearing Examiner. Participation before the Hearing Examiner will be in accordance with the Administrative Codes.

(LDC 1994, § 34-231; Zoning Ord. 1993, § 903.04; Ord. No. 93-14, § 7, 4-21-1993; Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 15-15, § 1, 11-17-2015; Ord. No. 16-10, § 3, 4-5-2016; Ord. No. 22-11, § 8(34-231), 5-17-2022)

Sec. 34-232. - Deferral or continuance of public hearings before the local planning agency and zoning hearings before the Board.

The following procedures and regulations for deferring or continuing a public hearing apply for the Local Planning Agency (LPA) and zoning hearings before the Board:

(1)

Deferral.

County staff or an applicant may request to defer a scheduled public hearing to a later time or date if requested before delivery of the public hearing notice to the newspaper.

County staff-initiated deferral. If County staff defers a scheduled public hearing, they must notify the applicant in writing of the reason for deferral and specify the information necessary to complete staff review.

Applicant-initiated deferral. Requests for a deferral by an applicant must be in writing and received by the Department prior to the Department submitting notice of the hearing to the newspaper for publication.

Fee. There will be no additional fee for deferrals. However, the applicant must obtain corrected zoning notice posters from the Department and post the signs on-site, if required by the LDC or Administrative Codes.

The Director may defer a case without action by the LPA or Board.

(2)

Continuance. A scheduled, advertised public hearing may be continued by the County or by the applicant as follows:

A continued hearing must be set to a specific date and time. Any hearing not continued to a date and time certain must be re-advertised.

The LPA or Board may continue a public hearing, upon staff request, or on its own initiative, when necessary to request additional information, public testimony, time to render their decision/recommendation, or to accommodate their schedules.

The applicant may request a continuance at the beginning of the agenda.

County staff and an applicant are each entitled to the first continuance without showing cause. Each decision-making body has the authority to grant further continuances upon a showing of good cause. If the subsequent request for continuance is denied, the hearing will proceed in accordance with the published agenda.

The requesting party must bear re-notification costs.

The County staff's and the applicant's first continuance requests for a zoning case scheduled before the Board will be automatically granted if submitted in writing to the other party no later than seven calendar days before the scheduled hearing. Otherwise, the Board will consider the continuance request on the date of hearing.

The Department will set the date and time of the continued hearing and notify the Board, Office of the County Attorney, and participants of record.

At the originally noticed hearing, the Board will announce the date and time of the continued hearing. No public comment or testimony will be taken on the case until the date of the continued hearing.

(LDC 1994, § 34-232; Zoning Ord. 1993, § 903.05; Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 98-11, § 5, 6-23-1998; Ord. No. 01-18, § 5, 11-13-2001; Ord. No. 05-14, § 6, 8-23-2005; Ord. No. 15-15, § 1, 11-17-2015; Ord. No. 16-10, § 3, 4-5-2016)

Lee County UnincorporatedCity Zoning Code

ARTICLE II

Sec. 34-81. - Appointment of local planning agency.

Sec. 34-82. - Initiation of zoning actions.

Sec. 34-83. - Functions and authority.

Sec. 34-85. - Final decision; judicial review.

Sec. 34-111. - Established.

Sec. 34-112. - Membership; term of office.

Sec. 34-113. - Compensation of members; funding.

Sec. 34-114. - Organization and operation.

Sec. 34-115. - Functions and authority.

Sec. 34-141. - Office established.

Sec. 34-142. - Appointment, qualifications.

Sec. 34-143. - Funding.

Sec. 34-144. - Conduct of hearings; reports and records.

Sec. 34-145. - Functions and authority.

Sec. 34-146. - Final decision; judicial review.

Sec. 34-171. - Appointment of Director.

Sec. 34-172. - Powers and duties.

Sec. 34-173. - Authority to permit uses pending a zoning action.

Sec. 34-174. - Authority to approve administrative actions.

Sec. 34-201. - Application requirements for public hearing and administrative actions.

Sec. 34-202. - Submittal requirements for applications requiring public hearing.

Sec. 34-203. - Submittal requirements for administrative action applications.

Sec. 34-204. - Submittal requirements for developments of regional impact.

Sec. 34-205. - Denials and resubmission of applications.

Sec. 34-231. - Public participation.

Sec. 34-232. - Deferral or continuance of public hearings before the local planning agency and zoning hearings before the Board.

Lee County Unincorporated
City Zoning Code