State legislation in limbo causes more uncertainty over land use changes in Naples

A state bill that stands to undo more restrictive land use and development rules Naples City Council has adopted since Hurricane Ian remains in limbo.

The Senate unanimously approved the legislation on May 1 that includes a retroactive prohibition on adopting any harsher regulations. It would essentially render them "null and void."

Yet, the bill still hasn't been sent to the governor for signing. That is causing confusion and uncertainty for the city over changes it's approved since Ian – and others it's now looking to adopt.

The uncertainty caused Council to put off decisions on four proposed changes at Wednesday's marathon meeting, pending a decision on the legislation (otherwise known as Senate Bill 250).

At the meeting, city attorney Nancy Stuparich offered an update on the legislation, noting that it had yet to hit Gov. DeSantis' desk.

Whether it reaches DeSantis' desk or not, she said it would become effective within 60 days of its passage by the Legislature, or by early July, unless the governor vetoes it.

"We are still somewhat in a holding pattern," Stuparich told Council.

City Manager Jay Boodheshwar agreed.

"What will eventually happen? I'm not going to bet. I don't bet on anything," he said.

The likelihood of the bill becoming law appears "pretty high," however, with many city, town and county managers around the state seeing the legislation's pros outweighing its cons, Boodheshwar said.

The legislation, dubbed "Natural Emergencies" and sponsored by Sen. Jonathan Martin, R-Fort Myers, includes many beneficial measures designed to help communities recover from Ian – and become more resilient against future storms.

"It's highly likely it's going to be adopted," Boodheshwar said. "The question is for us: How should we move forward?"

The governor must sign or veto legislation within 15 days if it's presented to him (excluding Sunday), or it becomes law without his signature.

In case you missed it:State legislation could undo land use changes made in Naples since Hurricane Ian

Council pushed decisions on land use changes to fall

Four ordinances were scheduled for first reading on Wednesday that could be impacted by the legislation. They all would require second hearings.

Council only moved forward with one of the code changes, approving it unanimously and setting a second hearing for August, after summer recess – when it will know the fate of Senate Bill 250. That proposed change would create new rules for outdoor dining on public property, including charging a yet-to-be determined fee for its use and requiring an 8-foot, instead of a 5-foot clearance, or path, for passersby.

Councilman Ray Christman moved to reschedule the proposal for a "date to be determined," but his motion failed by a vote of 3 to 4. The majority felt they had more leeway on it because it didn't involve private property, and it didn't seem to face much opposition.

Currently, the only outdoor dining that sits on public property is on Fifth Avenue South downtown, although anyone can ask for it in any commercial district. Fifteen restaurants – or about half of the total number of them on the street – have permits for it, approved by City Council.

Council discussed exempting existing restaurants from some or all of the new requirements.

Christopher Shucart, president of the Fifth Avenue Business Improvement District, with JCS Realty Group, said he and others would support a reasonable fee for the use of public property. In fact, he said he believed there should be one.

"As long we are able to keep the outdoor dining in the public right-of-way, that's a big piece for us," Shucart said.

Meg Stepanian, executive director of the Fifth Avenue Business Improvement District, said there's a willingness by many restaurant owners on the street to pull back on their outdoor dining, which expanded significantly onto sidewalks during the height of the pandemic, when they faced restrictions on their indoor seating.

She stressed the need and desire for outdoor dining, with restaurants "just starting to see the sunshine" after difficult times, from the pandemic to Hurricane Ian. It wouldn't be fair to pull the carpet from under them now, Stepanian told Council.

Mayor Teresa Heitmann emphasized that the intention is not to hurt existing businesses, but it's a question of safety, and giving away public property, for free.

Others on Council agreed.

"We need to make sure what we're doing on Fifth Avenue ... is giving the residents, visitors and even the clients of the restaurants the ability to walk up and down our streets. And that's important," said Vice Mayor Mike McCabe.

He said he'd be willing to allow restaurants that have a smaller than 8-foot clearance to keep it, as long as it was approved as part of their permit, unless they violate the conditions of their permit. Then they'd have to adhere to the new rules.

The three proposals Council continued or rescheduled to another day would:

• Reinstate density limits on hotels, motels and other transient lodging
• Require conditional use approval for additional recreational uses in residential districts
• Impose new parking requirements for outdoor dining on Fifth Avenue South

New state rules could force the city to start all over again on land use changes

The state prohibition on more restrictive and burdensome rules would reach back to Sept. 28, the day Ian hit, applying to every locality within 100 miles of where the destructive hurricane made landfall.

Applicable proposals or actions taken by the city would be wiped out, requiring City Council to start all over again on adopting those changes – after the prohibition expires in September 2024.

Since Ian the city has adopted several text amendments that could be overturned by the bill. Those amendments include:

• More regulations for single-family lot combinations and splits
• More rules for larger planned developments, including greater open space and setback requirements for new construction
• More requirements in the site plan review and approval process for larger projects

Earlier:Proposed changes to outdoor dining rules in Naples draw scrutiny, criticism

Four additional changes are pending that could be undone by the legislation that have yet to reach City Council. They first must be taken up by the city's Planning Advisory Board, which likely won't happen until the fall, Boodheshwar said.

"We have some time," he told Council "We really don't need the direction on that."