Lee County Unincorporated
City Zoning Code

The regulations of this chapter have caused or will cause some lots, structures or buildings, or uses of lots, structures or buildings, to be nonconforming. It is the purpose of this article to set forth the rules and regulations regarding those nonconforming lots, structures or buildings and uses which were created by the adoption of this chapter. Nothing contained in this article is intended to preclude the enforcement of federal, State and other local regulations that may be applicable.

(LDC 1994, § 34-3201; Zoning Ord. 1993, § 600)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Nonconforming use means a use or activity which was lawful prior to the adoption of the ordinance from which this chapter is derived, or the adoption of a revision or amendment of this chapter, but which fails, by reason of such adoption, revision or amendment, to conform to the use requirements of the zoning district in which located.

(LDC 1994, § 34-3202; Zoning Ord. 1993, § 601)

(a)

Structures nonconforming due to setbacks. A structure which is lawful in all respects with the exception of a setback requirement may be enlarged, provided that:

(1)

The enlargement is otherwise permitted; and

(2)

The enlargement itself, including any enlargement which increases the height or volume of the structure, complies with all the setback requirements.

(b)

Structures nonconforming due to area. A structure which is lawful in all respects, with the exception of lot area requirements, may be enlarged, provided that:

(1)

The enlargement is otherwise permitted;

(2)

All other property development requirements such as setbacks, height, bulk, lot coverage, parking and open space are met; and

(3)

The enlargement does not increase the density or intensity of use.

(c)

Structures nonconforming due to height. A structure which is lawful in all respects with the exception of height restrictions may be enlarged, provided that:

(1)

The enlargement is otherwise permitted; and

(2)

The enlargement complies with height and setback requirements.

(d)

Structures nonconforming due to bulk or lot coverage. A structure which is lawful in all respects with the exception of bulk or lot coverage shall not be enlarged.

(LDC 1994, § 34-3203; Zoning Ord. 1993, § 604)

Any mobile home or recreational vehicle unit which has been lawfully placed on any rental lot within any rental park, regardless of whether the park has been converted to either cooperative or condominium ownership prior to June 25, 1986, may be replaced by a unit of equal or smaller size upon proof that the placement of the unit was lawful. Such proof may consist of copies of official tax records, tag registrations or County permits, or may be by affidavit or any other competent evidence. Permits shall also be issued for reroofing and roof repairs for any existing mobile home or recreational vehicle located within a mobile home or recreational vehicle park, regardless of lot size.

(LDC 1994, § 34-3204; Zoning Ord. 1993, § 605)

(a)

Uses approved by special exception or other permits which were issued or granted by the Board of County Commissioners before the effective date of the ordinance from which this chapter is derived, and which are no longer permitted in the zoning district where located, shall be considered to be nonconforming uses and subject to the provisions of this article.

(b)

For existing mining excavations approved by special exception, the provisions of Section 12-121 control.

(LDC 1994, § 34-3205; Zoning Ord. 1993, § 606; Ord. No. 08-21, § 3, 9-9-2008)

(1)

A structure, lot, tract, or parcel of land that has been or will be rendered nonconforming as to area, width, depth, setbacks, lot coverage or parking because of a taking through eminent domain proceedings, by the voluntary sale of a parcel of land under the threat of eminent domain proceedings by a governmental authority after October 15, 1992, or by the voluntary donation of land to a governmental authority will be deemed conforming under the terms of this chapter.

(2)

An administrative variance procedure is available to address improved parcels or parcels with approved development orders that have been rendered nonconforming or have been rendered unable to comply with current regulations as to signs, required landscape buffers, and open space because of a taking through eminent domain proceedings, by the voluntary sale of a parcel of land under the threat of eminent domain proceedings by a governmental authority, or by the voluntary donation of land to a governmental authority. The procedures to address the nonconformities referenced in this subsection are set forth in Section 34-174(a).

(LDC 1994, § 34-3206; Zoning Ord. 1993, § 607; Ord. No. 95-07, § 33, 5-17-1995; Ord. No. 06-25, § 2, 11-28-2006; Ord. No. 13-10, § 10, 5-28-2013; Ord. No. 19-03, § 7, 4-2-2019)

A nonconforming use of land may be continued subject to the provisions of this division.

(LDC 1994, § 34-3221; Zoning Ord. 1993, § 601.01)

A nonconforming use of land may not be extended, enlarged, or replaced by another use that is not specifically permitted in the applicable zoning district.

(LDC 1994, § 34-3222; Zoning Ord. 1993, § 601.01(A); Ord. No. 07-24, § 7, 8-14-2007)

Land used in whole or in part for a nonconforming use, which use is subsequently discontinued for a continuous period of six calendar months, may not again be used except in conformity with the regulations then in effect. The intent of the owner, lessee or other user is not relevant in determining whether the use has been discontinued.

A nonconforming use, that exists on property voluntarily made the subject of a zoning action, which is not specifically permitted under the zoning approval requested and ultimately granted becomes illegal as a result of the zoning approval. A use deemed illegal under this section must be ceased and discontinued immediately upon approval of the zoning request.

(LDC 1994, § 34-3223; Zoning Ord. 1993, § 601.01(B); Ord. No. 07-24, § 7, 8-14-2007)

No additional structure that does not conform to the requirements of this chapter may be erected in connection with a nonconforming use of land.

(LDC 1994, § 34-3224; Zoning Ord. 1993, § 601.01(C); Ord. No. 07-24, § 7, 8-14-2007)

Any property zoned RS-1 Residential Single-Family on Gasparilla Island that has been used as an accessory parking lot since on or before January 1, 1980, to support water-dependent uses on the same premises, with no intervening street right-of-way, is deemed to be a nonconforming use, as defined in this chapter.

(LDC 1994, § 34-3225; Ord. No. 11-01, § 5, 3-8-2011)

(a)

For the purposes of this division, the term "nonconforming building or structure" means a building or structure which was lawful prior to the adoption of the ordinance from which this chapter is derived, or the adoption of a revision or amendment of this chapter, but which fails, by reason of such adoption, revision or amendment, to conform to the proper development requirements of the zoning district in which the building or structure is located due to its size, dimension or location on the lot.

(b)

A nonconforming building or structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

Except as provided in Section 34-3203, no such building or structure may be enlarged, altered or repaired in a way which, in the opinion of the Department Director or his designee, increases its nonconformity, but any structure or building or portion thereof may be altered to decrease its nonconformity. If there is more than one structure on a property with a legally nonconforming use, a limited expansion may be allowed subject to there being a determination that there will be an improvement to neighborhood compatibility. The limited expansion shall be to allow a structure or portion of a structure to be destroyed and the equivalent square footage replaced by expansion of another existing structure if the Department Director makes a determination that such expansion would not be detrimental to the neighborhood and such expansion is less than 50 percent of the current assessed value of the structure which will be expanded. Any expansion must also conform to setback requirements and all other requirements for the zoning district in which the property is located.

(2)

Except as provided in this section:

a.

Any nonconforming structure or building, or portion thereof, that is substantially improved (reconstructed, rehabilitated, altered or demolished) to the extent that the cost of such improvement equals or exceeds a cumulative total of 50 percent of the current assessed value of the structure before the start of construction of the improvement may only be reconstructed at, but not to exceed, the lawful density or intensity existing at the time of destruction; provided, however, that the reconstruction of the structure is consistent with federal, State and local regulations and all the other provisions of this chapter. Any such alteration, demolition, reconstruction or rebuilding must be recorded with the Division of Development Services for the purpose of establishing the value upon which subsequent alterations, demolition, reconstructions or rehabilitations will be based.

b.

Structures damaged by fire or other natural forces to the extent that the cost of their reconstruction or repair exceeds 50 percent of the replacement cost of the structure may be reconstructed at, but not to exceed, the legally documented actual use, density and intensity existing at the time of destruction, thereby allowing such structures to be rebuilt or replaced to the size, style and type of their original construction, including their original square footage; provided, however, that the affected structure, as rebuilt or replaced, complies with all applicable federal and State regulations, local building and life safety regulations, and other local regulations that do not preclude reconstruction otherwise intended by the Lee Plan and Lee County Code Chapter 10, Article IV, as amended from time to time.

(3)

A lawfully existing single-family residence or mobile home damaged by fire or other natural forces may be repaired or replaced, provided the new unit is no larger in area, width and depth than the size of unit being replaced.

(4)

Repairs, reconstruction or renewal of an existing structure, building or portion thereof for the purpose of its maintenance may be permitted. However, repairs, reconstruction or renewal of structural elements will be reviewed by the Director of the Division of Development Services to determine applicability under this section, or whether such repairs will be considered under Subsection (b)(2)a of this section. For the purposes of this section, a change in the roofline from a flat roof to a peaked roof constitutes an alteration as indicated in Subsection (b)(2)a of this section, provided that there is no increase in floor area.

(5)

Should a nonconforming structure be moved on-site for any reason, for any distance whatever, it may not be moved unless the relocation decreases the nonconformity.

(6)

Any portion of a nonconforming structure that becomes physically unsafe or unlawful due to lack of repairs and maintenance, and which is declared unsafe or unlawful by a duly authorized County official, but which the owner wishes to repair, restore or rebuild, must be repaired, restored or rebuilt in conformance with the provisions of this chapter. Excluded from this provision are buildings that have been designated as historic by Chapter 22.

(7)

Zoning applications that include property upon which a nonconforming structure exists at the time of the zoning application, must include a sworn statement from the property owner regarding the owner's intent with respect to bringing the nonconforming structure into compliance in the event the zoning request is granted. A finding regarding the nonconforming structure must be included in the zoning resolution or decision.

(LDC 1994, § 34-3241; Zoning Ord. 1993, § 603; Ord. No. 98-28, § 5, 12-8-1998; Ord. No. 07-24, § 7, 8-14-2007; Ord. No. 21-08, § 9, 6-1-2021)

A nonconforming use of a building, or building and land in combination, may be continued subject to the following provisions:

(1)

Enlargement or replacement. No such nonconforming use of a building, or building and land in combination, shall be extended or enlarged, or replaced by another building or use not specifically permitted in the use regulations for the zoning district in which the building is located.

(2)

Discontinuance. When a nonconforming use of a building, land, or building and land in combination is discontinued or abandoned for six consecutive months (except when government action impedes access to the land), the building, or building and land in combination, shall not thereafter be used except in conformance with the regulations of the district in which it is located. This subsection shall not apply to seasonal agricultural uses.

(3)

Repair and maintenance.

a.

Only ordinary repairs and maintenance, including repair or replacement of roof covering, walls, fixtures, wiring or plumbing, shall be permitted on any building or structure devoted to a nonconforming use. In no case shall such repairs include structural alterations.

b.

If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations for the district in which it is located.

(LDC 1994, § 34-3242; Zoning Ord. 1993, § 601.02)

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Nonconforming or substandard lot means a lot of which the area, dimension or location was lawful prior to the adoption of the ordinance from which this chapter is derived, or the adoption of a revision or amendment of this chapter, and which fails by reason of such adoption, revision or amendment to conform to the requirements for the zoning district in which the lot is located.

(LDC 1994, § 34-3271; Zoning Ord. 1993, § 602)

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Lot of record means a lot which conformed to the minimum lot size for the use permitted for that lot in its zoning district at such time that the lot was created, but which lot fails to conform to the minimum lot size requirements which are established by this chapter.

(1)

For the purpose of this division, a lot is created on such date that one of the following conditions occur:

a.

The date that a deed for the lot is lawfully recorded in the public records of the County;

b.

The date that a subdivision plat has been lawfully recorded in the public records of the County, if the lot is a part of the subdivision;

c.

The date that a site plan for a development was approved by the Board of County Commissioners, pursuant to resolution, as long as the development subsequently recorded a subdivision plat that has been approved by the Board of County Commissioners in the public records of the County, if the lot is a part of the subdivision; or

d.

In the case of mobile home or recreational vehicle parks, the date when the park was approved by resolution for rezoning or a special permit for such use; provided, however, that the park subsequently obtained, on or before June 3, 1987, approval by the Board of County Commissioners of a site plan which identifies individual sites within the park and the sites meet the minimum lot size and setbacks consistent with the zoning regulations set forth in Section 34-3274. Any park which was lawfully established prior to the effective date of the County's 1962 zoning regulations will be governed by the requirements of Section 34-3274(1), as long as the park satisfies the remaining minimum documentary requirements and Board of County Commissioners approval set forth in this provision. Any park approved by the Board of County Commissioners under Ordinance No. 86-36 may request administrative approval to amend the approved site plan in accordance with Section 34-174. For the purposes of this subsection, the term "site plan" means any one or more of the following, whichever is applicable:

1.

A sealed and signed survey showing individual lots by both course and distance;

2.

An unrecorded subdivision plat prepared and certified by a professional engineer or surveyor;

3.

A condominium plot plan prepared and recorded pursuant to F.S. Ch. 718;

4.

A park plan prepared and submitted with a prospectus pursuant to F.S. Ch. 723, provided that the prospectus has been approved by the State Department of Business Regulation and is of sufficient accuracy, size and legibility to enable the Director to Administer this chapter;

5.

A site plan approved in accordance with County Administrative Code Policy F-0015;

6.

A site plan approved pursuant to a preliminary or final development order;

7.

A rectified aerial with a minimum scale of one-inch equals 100 feet and which has each site delineated and identified by its number and shows individual lot measurements with a reasonable degree of accuracy; or

8.

Any other document which shows lot lines with enough specificity to enable the Director to apply the provisions of this chapter with respect to minimum lot size, lot widths and setback requirements.

Any of the above documents that have not been formally approved by the Board of County Commissioners will not be sufficient to satisfy the provisions of this subsection. The burden of proof that a document has received Board of County Commissioners approval is that of the owner.

(2)

The remaining lot after condemnation shall be deemed a lot of record in accordance with Section 34-3206.

(3)

Lots of record may be developed subject to the following provisions:

a.

Except as provided in Section 34-3272(3)c, all other regulations of this chapter must be met.

b.

No division of any parcel may be permitted which creates a lot with width, depth or area below the minimum requirements stated in this chapter, provided that abutting lots of record may be combined and redivided to create larger dimension lots as long as such recombination includes all parts of all lots, existing allowable density is not increased, and all setback requirements are met.

c.

Nonconforming lots of record in one- and two-family residential districts may be developed with any dwelling unit type permitted within the property's designated zoning district provided:

i.

The development complies with the Lee Plan; and

ii.

Development of the property complies with the regulations established in Sections 34-3273(a)(2) and 34-3273(b).

(4)

The burden of proof that the lot is legally nonconforming, and lawfully existed at the specified date, shall be with the owner.

(LDC 1994, § 34-3272; Zoning Ord. 1993, § 602.01; Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 11-08, § 10, 8-9-2011; Ord. No. 14-13, § 7, 6-17-2014; Ord. No. 16-19, § 10, 11-15-2016; Ord. No. 19-03, § 7, 4-2-2019; Ord. No. 25-09, § 5, 4-15-2025)

(a)

A single-family residence may be constructed on a nonconforming lot of record that:

(1)

Does not comply with the density requirements of the Lee Plan, provided the owner receives a favorable minimum use determination in accordance with the Lee Plan.

Such nonconforming lots are exempt from the minimum lot area and minimum lot dimension requirements of this chapter, and it will not be necessary to obtain a variance from those requirements.

(2)

Complies with the density requirements of the Lee Plan, as long as the lot:

a.

Was lawfully created prior to June 1962 and the following conditions are met:

i.

Lots existing in the AG-2 or AG-3 Zoning District require a minimum width of 75 feet, a minimum depth of 100 feet and a lot area not less than 7,500 square feet.

ii.

Lots existing in any other zoning district which permits the construction of a single-family residence require a minimum of 40 feet in width and 75 feet in depth, and a lot area not less than 4,000 square feet.

b.

Is part of a plat approved by the Board of County Commissioners and lawfully recorded in the public records of the County after June 1962.

(b)

Minimum setbacks for structures permitted under Section 34-3272(3) and Subsection (a)(1) or (2) of this section, are as follows:

(1)

Street setbacks must be in accordance with Section 34-2192.

(2)

Side setbacks must be ten percent of lot width, or five feet, whichever is greater.

(3)

Rear setbacks must be one-fourth of the lot depth but do not need to be greater than 20 feet.

(LDC 1994, § 34-3273; Zoning Ord. 1993, § 602.02; Ord. No. 96-06, § 5, 3-20-1996; Ord. No. 96-17, § 5, 9-18-1996; Ord. No. 00-14, § 5, 6-27-2000; Ord. No. 25-09, § 5, 4-15-2025)

A single-family dwelling unit, mobile home or recreational vehicle may be constructed or placed on a lot of record within a mobile home or recreational vehicle park provided that:

(a)

The park was properly zoned or approved by special permit for mobile home or recreational vehicle use, or, in the case of single-family dwelling units, the property's zoning district lists single-family dwelling units as a permitted use; and

(b)

The minimum requirements, as set forth in this section, were met at the time the lot was created. These requirements are as follows:

(1)

For lots of record prior to created June 28, 1962:

a.

The minimum lot area per unit shall be not less than 1,200 square feet; and

b.

There shall be a minimum of ten feet between units.

(2)

For lots of record created on or after June 28, 1962 and before June 18, 1968:

a.

The minimum lot area per unit shall be not less than 2,800 square feet;

b.

The minimum lot width shall be 40 feet; and

c.

The minimum setbacks from all lot lines shall be five feet.

(3)

For lots of records created on or after June 19, 1968 and before January 16, 1973:

a.

Minimum lot areas shall be:

1.

For mobile homes or single-family dwelling units on central sewer: 3,750 square feet;

2.

For mobile homes or single-family dwelling units on individual septic systems: 7,500 square feet; and

3.

For recreational vehicles: 1,200 square feet.

b.

Minimum setbacks for both mobile homes and recreational vehicles shall be:

1.

From a street right-of-way: Ten feet;

2.

From a rear lot line: Ten feet;

3.

From side lot lines: Five feet or a minimum of ten feet between units; and

4.

From the park perimeter: 15 feet.

(4)

For lots of record created on or after January 17, 1973 and before February 3, 1978:

a.

Minimum lot areas shall be:

1.

For mobile homes or single-family dwelling units on central sewer: 4,000 square feet; and

2.

For recreational vehicles on approved septic systems: 1,200 square feet.

b.

Minimum setbacks for mobile homes, single-family dwelling units, and recreational vehicles shall be:

1.

From a street right-of-way: Ten feet;

2.

From a rear lot line: Ten feet;

3.

From side lot lines: Five feet or a minimum of ten feet between units; and

4.

From the park perimeter: 15 feet.

(5)

For lots of record created on or after February 4, 1978 and before April 20, 1994:

a.

Minimum lot areas shall be:

1.

In the MH-1 District: 7,500 square feet;

2.

In the MH-2 District: 5,000 square feet;

3.

In the MH-3 District: 21,000 square feet;

4.

In the MH-4 District: 40,000 square feet; and

5.

In the RV-2 and RV-3 Districts: 2,000 square feet.

b.

Minimum setbacks shall be as set forth in the 1978 Zoning Regulations.

(c)

For mobile home or recreational vehicle lots of record, the following will also apply:

(1)

All mobile homes or recreational vehicles, including any attachments, must be placed at least five feet from any body of water or waterway;

(2)

All mobile homes or recreational vehicles must have a minimum separation of ten feet between units (body to body) and appurtenances thereto. Each unit will be permitted to have eaves which encroach not more than one foot into the ten-foot separation; and

(3)

Sites or lots located within a park may not be reconfigured or reduced in dimension so as to increase the density for which the park was originally created.

(LDC 1994, § 34-3274; Zoning Ord. 1993, § 602.03; Ord. No. 25-09, § 5, 4-15-2025)

Editor's note— Ord. No. 25-09, § 5, adopted April 15, 2025, amended the title of § 32-3274 to read as herein set out. The former § 32-3274 title pertained to Placement of mobile home or recreational vehicle on lot.

A commercial or industrial use of land may be commenced on a single nonconforming lot of record lawfully existing on the effective date of the ordinance from which this chapter is derived, subject to the specific limitations and regulations set forth in this section; provided, however, that the lot is zoned for such use. However, the lot must be appropriately located and adequate in size and dimension to accommodate the use contemplated and all spatial requirements, i.e., proposed structures, setbacks, parking, access, surface water management facilities and, where required, buffers.

(1)

If the lot was lawfully created prior to June 1962, it must be at least 4,000 square feet in area and have a minimum width of 40 feet and a minimum depth of 75 feet. Minimum setbacks for structures are as follows:

a.

Street setbacks shall be as set forth in the regulations for the applicable zoning district.

b.

Side setbacks shall be 20 percent of lot width, or 15 feet, whichever is less.

c.

Rear setbacks shall be one-half of the lot depth less the street setback, or five feet, whichever is greater, but not more than 25 feet.

(2)

If the lot was created between June 1962 and January 5, 1978, and was lawfully existing on February 4, 1978, it must be at least 7,500 square feet in area and have a minimum width of 75 feet and a minimum depth of 100 feet. Minimum setbacks for structures are as follows:

a.

Street setbacks shall be as set forth in the regulations for the applicable zoning district.

b.

Side setbacks shall be 15 feet.

c.

Rear setbacks shall be one-half the lot depth less the street setback, or five feet, whichever is greater, but not more than 25 feet.

(3)

Nothing in this section shall be construed to prohibit the rezoning of nonconforming lots of record into commercial or industrial districts where the public interest is served by such a rezoning.

(LDC 1994, § 34-3275; Zoning Ord. 1993, § 602.04)