Lee County and the owner of waterfront property on San Carlos Island have asked Gov. Ron DeSantis and the Cabinet to reject a ruling that could stop the controversial Bay Harbour Marina project.
In a decision filed this month, a state administrative law judge threw out county commissioners’ approval of the marina, which is bitterly opposed by many people on San Carlos.
More: Original plan defeated
More: The compromise
The builder is appealing, bringing it to the state Administration Commission, which includes DeSantis and members of the state Cabinet.
After years of hearings, the future of the marina may come down to the way San Carlos would be evacuated during a Category 5 hurricane, the strongest hurricane on the authoritative Saffir-Simpson hurricane wind scale.
San Carlos is in the Coastal High Hazard Area, or CHHA, among the most dangerous places to be during a hurricane.
Commissioners approved a scaled-down version of the Bay Harbour project in June 2020 after being rejected by the board on two previous occasions. The revision was developed through negotiations involving county staff, the county attorney’s office and the developer and was intended to head off a lawsuit.
The compromise approved by county commissioners reduced the number of units on the site from 113 to 75 by eliminating workforce housing and reduced the height of buildings, among other changes.
San Carlos residents William Semmer and Joanne Semmer appealed the county commission’s approval of the compromise to the Florida Department of Administrative Hearings, where an administrative judge found grounds to overturn the county decision.
Approval required a change in the county’s comprehensive land use plan and that change opened the door to consideration of hurricane evacuation times as a factor in the decision.
The administrative law judge who ruled on the case earlier this month and the lawyer for the property owner have different interpretations of requirements for builders to make up for any changes a project causes in hurricane evacuation from a high hazard zone.
They also disagree on what property owner Southern Comfort Storage LLC is required to do to prepare its site for a storm of that magnitude.
Judge Suzanne Van Wyk said in a recommended order that allowing a developer whose project increases population density to offset only the impact of its own development on evacuation “unworkable” because the result would not satisfy the county’s own hurricane evacuation standards.
Southern Comfort Storage takes the position that because the county already doesn’t meet its own requirements the builder does not have to anything beyond fixing the impact that its project would have on evacuation times.
It claims that Van Wyk’s decision would require builders of a single project to solve a countywide problem.
Fort Myers attorney Russell Schropp, who represents Southern Comfort, argued in his filing that to comply with Van Wyk’s ruling, the landowner would have to “remedy the county’s existing backlog of hurricane and shelter deficiencies” for all of Lee County and not just San Carlos Island.
Cape Coral attorney Ralf Brookes, who represents the Semmers, said Van Wyk is correct in concluding that if the county already fails to meet its own evacuation time requirements, allowing the developer to resolve the issue by fixing only the additional burden caused by its own construction “is unworkable and is rejected.”
In a statement Friday, Brookes said Lee County’s predicted evacuation times are “increasing rather than decreasing,” and it would take 96 hours to evacuate the county as a severe hurricane approaches.
“Hurricane evacuation orders would have to be issued at least four days ahead of a hurricane in order to safely evacuate,” Brookes said.
Schropp argues that a developer only has to take care of its own problems and has a duty to mitigate “only that portion of the hurricane evacuation impact associated with the particular development” but is instead being asked to “bring the entire county’s hurricane evacuation standard within the standards.”
The case is heading to the state Administration Commission, which consists of the governor, lieutenant governor, chief financial officer, attorney general and agriculture commissioner.
In her decision, Van Wyk dispensed several other objections the Semmers and Brookes raised to approval of the project, which means the issue of hurricane sheltering and evacuation times is the only remaining issue.
Brookes said hurricane evacuation times are a crucial issue, and increased building on the San Carlos Island is dangerous when the county can’t meet its own evacuation standard.
“The failure to satisfy and maintain the 16-hour evacuation level of service time puts human lives in significant risk and danger,” Brookes said. “Lee County cannot continue to adopt comprehensive plan amendments that approve density increases in the extremely sensitive CHHA without placing new and existing residents at risk.”
Hanging over the proceedings is the possibility that if the developer loses the case, it could sue the county under the Bert J. Harris Jr. Private Property Rights Protection Act that allows a landowner to seek compensation when government action interferes with property rights.