The “Protect Captiva” coalition has been advised that the Board of County Commissioners may soon schedule a hearing to adopt the proposed amendments to the Captiva chapter of the Lee Plan which eliminate the Captiva height limitations from the Plan, notwithstanding the comments from the State’s Bureau of Community Planning and Growth calling the County amendments a “false flag” operation, and despite opposition from almost everyone on the islands of Captiva and Sanibel. Rarely has an elected political body so ignored the nearly unanimous views of the community it represents. Now, as part of the “Protect Captiva” coalition’s efforts to represent the Captiva community, our Attorney was asked to critically analyze the legal issues raised by the proposed amendments and to provide his legal opinion to the County.
The full legal opinion, which is available with this update, is summarized below:
Our Attorney’s legal opinion is that the current Captiva Code, the current Lee Plan, and the County’s current Build-back provisions already allow for property owners on Captiva to build new structures in compliance with updated federal flood elevation standards, and to rebuild damaged nonconforming structures in compliance with updated federal flood elevation standards without a reduction in use, density, intensity, size or square footage of their structures.
His legal analysis concludes that the proposed amendments to the Lee Plan and Land Development Code are unnecessary to allow property owners to build back their damaged properties, and have, ironically, compelled County Staff to endorse an interpretation of the County’s build back provisions which actually hinder the ability to build back.
The proposed amendments would instead allow for an increase in hotel and residential density on Captiva – a hurricane-prone Coastal High Hazard Area – without a full analysis of the impact on infrastructure, evacuation routes, and the environment in violation of Florida’s Community Planning Act. The proposed Plan and Code amendments are not required for resiliency, would make Captiva less resilient and less safe by increasing the density and intensity of use inside and outside of South Seas Island Resort, and unlawfully contradict important environmental policies and objectives of the Lee Plan.
The proposed amendments also grant special development benefits for one landowner on Captiva, thus subjecting the County to colorable federal equal protection claims. This discriminatory benefit for a single property owner also sets a precedent for more intense development over the entire island.
In light of these concerns, our Attorney requests that the Board of County Commissioners revisit this entire matter and cease any effort to amend the Lee Plan. It is hoped that the County will evaluate its liability associated with these legal issues, and agree that the proposed amendments discard long-held community standards on Captiva and allow for an ill-advised increase in hotel rooms and additional floors of buildable living space on a narrow barrier island within the Coastal High Hazard Area with limited evacuation capacity just one year after that island was devastated by Hurricane Ian.
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