After the disappointing decisions by the Lee County Commissioners in early September, the proposed amendments to the Land Development Code and the Lee Plan were passed. As required, the amendments were then transmitted to the state for comments by concerned agencies. The “Protect Captiva” coalition has retained legal counsel that has submitted comments to the state agencies and is evaluating next steps. 

Legal Update from the Land Use Committee of the Captiva Civic Association

On Sept. 7, Lee County transmitted its proposed amendments to the Captiva chapter of the Lee Plan to various state agencies for their comments as required by state statute. The state agencies have until Oct. 6 to send their comments back to the county.

While the state agencies cannot reject outright the county’s amendments, their comments can induce the county to remove or modify the amendments, and they could affect the results of future litigation.

Our Attorney, representing the unified position of the “Protect Captiva” coalition, submitted the community’s “significant concerns” to the state agencies reviewing the county’s amendments which “would perversely allow an increase in hotel rooms and additional floors of buildable living space on a barrier island within the Coastal High Hazard Area just one year after that island was devastated by Hurricane Ian.”

The Attorney’s memo advises the state agencies that the county failed to accurately describe the proposed amendments in its report to the state – failing to mention that the Lee Plan amendments were made to facilitate changes in the Land Development Code which would permit higher buildings and more hotel rooms than currently allowed on Captiva.

The memo also advises state agencies that the amendments constitute an “up-planning” of development on Captiva which is not supported by the data and analysis required by the Community Planning Act. The county failed to analyze the amendments’ effects on the island’s infrastructure, its roads, its hurricane evacuation routes, its water resources, its septic systems, its sewer project or its environmental resources.

The county also failed to recognize that granting special benefits to a single property owner on South Seas constitutes inappropriate spot-planning and raises serious constitutional issues of equal protection.

Finally, the memo makes clear that the amendments have little to do with resiliency, and will only make Captiva less resilient and less safe when facing future hurricanes. The memo concludes by asking the state agencies to agree that these amendments are a completely unacceptable response to the devastation wrought last year by Hurricane Ian – and to so advise the county.

As indicated above, once the county gets feedback from the state agencies, it will have to decide how to proceed. If the county chooses to adopt the amendments without change, and implement the Land Development Code with greater heights and density for Captiva, the community coalition will evaluate and continue to pursue the best legal options available to “Protect Captiva.”