In this issue we begin a series of informative, research based articles
on governance alternatives that the citizens of Estero may want to
consider over the next several years. This information appears at the
end of the report.
On Tuesday October 2nd the
Estero
Community Plan Steering Committee will meet with Donna Marie Collins of
the Lee County Law Department and Paul O'Connor, head of Lee County
Planning, to learn about the newly adopted county "disclosure and
sunshine" procedures that community planning groups must follow in
developing their proposed community plans/land development code changes
and the county program for funding these activities.
This is the first step in Phase 2 of the Community Plan enactment
process--the county Land Development Code amendment, or enforcement,
phase. During this phase the Community Planning Committee and the
residents of Estero will develop responses to the following mandates
contained in the Community Plan, that is now in Tallahassee for review
by the state:
"Objective 19.1: COMMUNITY CHARACTER. The Estero community will draft
and submit regulations, policies and discretionary actions affecting the
character and aesthetic appearance of Estero for Lee County to adopt and
enforce to help create a visually attractive community.
Policy 19.1.1: By the end of 2002, The Estero community will draft
and submit regulations, policies for Lee County to review, amend or
establish as Land Development Code regulations that provide for enhanced
landscaping along roadway corridors, greater buffering and shading of
parking areas, signage consistent with the Community Vision, and
architectural standards…
Policy 19.2.1: All new commercial development that requires rezoning
within the Estero Community must be reviewed as a Commercial Planned
Development.
Policy 19.2.2: All retail uses must be in compliance with the Retail
Site Location Standards. A finding of a “Special Case” must demonstrate
a community benefit in addition to the requirements outlined in Policy
6.12(8). Retail Uses along Corkscrew Road (outside of the Nodes
identified on Map 19) are required to be submitted as a component of an
MPD with at least one use being residential.
Policy 19.2.3: By the end of 2002 the Estero Community will submit
regulations that encourage mixed use developments along Corkscrew Road
for Lee County to review amend or adopt.
Policy 19.2.4: With the exception of Commercial Nodes identified on
Map 19, Lee County will discourage new retail uses along Three Oaks
Parkway, in favor of office and residential uses.
Policy 19.2.5: The following uses are prohibited within the Estero
Planning Community: “detrimental uses” (as defined in the Land
Development Code); free-standing nightclubs or bar and cocktail lounges;
or retail uses that require outdoor display in excess of one acre.
Policy 19.2.6: Lee County encourages commercial developments within
the Estero Community to provide interconnect opportunities with adjacent
commercial uses in order to minimize access points onto primary road
corridors; and residential developments to provide interconnect
opportunities with commercial areas, including but not limited to bike
paths and pedestrian access ways…
Policy 19.3.2: By the end of 2003, The Estero community will draft
and submit regulations and policies for Lee County to review, amend or
adopt as regulations in the Land Development Code to provide for greater
buffering between distinctly different adjacent commercial and
residential properties, modified however when a project is of mixed use
nature."
The Estero Community Plan also specifies several other additional
Land Development Code changes to be developed and enacted by the end of
2003 and 2004.
(Between Corkscrew and Williams just east of the railroad tracks)
The firm of Parker/Mudgett/Smith
Architects has been hired by Lee County to assist in the planning and
design of the Estero-Bonita Community Park. According to firm
representative Jeff Mudgett no decisions have been made nor will be made
until public input is obtained through three public hearings to be
scheduled for November through January. The firm will be using September
and October to thoroughly research all the important aspects of the 55
acre park site. They will be analyzing aerial photos of the site;
studying environmental surveys of the property; determining access
points for all utilities; learning about existing and new roadway access
points to the park property and traffic patterns affecting the use of
the property prior to the public hearings.
One of the key questions to be addressed by the hearings is the
relative amount of available space that should be devoted to organized
sports, adult sports that typically require a recreation center and open
space. The public hearings will be widely promoted by the consultants in
order to maximize public participation.
August was another big month for
Estero residential building permits with 221 additional units permitted.
For the sixth time in eight months this year the number of 2001 housing
permits was greater than for the same month last year. The total housing
units permitted in Estero thus far in 2001 equals 1,620, up by 22% from
last year's eight month total of 1,324. We will be tracking this series
monthly to assess the short term impact of the recent heinous attacks in
New York and Washington upon our local residential real estate market.
The Board of County Commissioners
hearing regarding the rezoning of this property on the south side of Koreshan Boulevard midway between 41 and Three Oaks Parkway has been
scheduled for 9:30 on the morning of Monday, October 1,2001. The August
Report detailed the changes suggested by the Hearing Examiner that
merely shifts the density of the project from one section to another
while failing to address the concerns of the neighboring communities
about entrance and egress on East Broadway Street.
(on 41 in front of The Brooks)
The developer
continues to meet with Lee County Transportation staff and Regional
Planning Commission staff in an effort to resolve differences in their
assessment of the traffic impact of the project and the resulting cost
that the developer must bear to improve roads supporting the shopping
center and the other facilities of the project. Some progress has been
made but several issues remain. If and when these issues are resolved
County transportation staff will update their report and make it
available for public review prior to the public hearing on the rezoning
of the property.
As reported earlier the Lee County Comprehensive Plan must also be
amended to change the classification of the project land from "rural" to
"urban community" before the rezoning can be approved. The developer has
applied for this change and has only recently submitted additional
information requested by the county planning staff. Once the application
has been found sufficient it will be scheduled for hearing by the county
Land Planning Agency, probably in October or November.
Since Bonita Springs became a City about 18 months ago, there has
been much public debate about what form of governance Estero should
seek. We have three options:
• Stay unincorporated under the jurisdiction of the Lee County Board
of Commissioners; or
• Be annexed by the City of Bonita Springs; or
• Become a municipality
In this issue we begin to provide some factual information that we hope
will help inform the citizens of Estero about each of these options so
that they can effectively participate in this important debate. We
expect to address many other important Estero governance questions in
the months to come.
The Charter of the City of Bonita Springs includes a moratorium that
prohibits the City from annexing any property included in the
Estero
Fire Rescue district until December 31, 2004.
Chapter 171 of the Florida Statutes establishes the legal procedures
that the City of Bonita Springs and all other Florida municipalities
must satisfy in order to annex any statutorily defined "qualifying
property" (contiguous, reasonably compact, urban or land between two
urban areas) into its boundaries. The governing body of the annexing
municipality decides what properties it wants to annex when it drafts
its annexation ordinance. Most, if not all, of Estero except for the
undeveloped land east of Wildcat Run would appear to satisfy these
standards.
Step 1
Florida law requires that the governing body of an annexing
municipality shall, prior to commencing the annexation process; prepare
a report setting forth the plans for providing urban services to the
area to be annexed. This report must include:
• A map showing the present and proposed municipal boundaries, the
present major trunk water mains and sewer interceptors and outfalls, the
proposed extensions of such mains and outfalls and the general land use
in the area to be annexed;
• A statement certifying that the area satisfies the statutory
qualification standards mentioned above;
• A statement setting forth the plans of the municipality for extending
to the area to be annexed each municipal service performed within the
municipality at the time of annexation…on substantially the same basis
and in the same manner as such services are provided within the rest of
the municipality prior to annexation…and the method for financing
extension of services into the area to be annexed.
The requirements of this report, no doubt, will have some influence
upon the municipality's decisions regarding what properties it would
seek to annex.
Step 2
This report must also be filed with the Board of County
Commissioners prior to beginning the annexation process.
Step 3
An ordinance proposing the annexation may then be filed with
the governing body of the municipality.
Step 4
The local governing body must hold at least two advertised
public hearings concerning the annexation ordinance.
Step 5
The local governing body votes to adopt the annexation
ordinance.
Step 6
The local governing body shall schedule an annexation
referendum at the expense of the municipality. The referendum shall be
at the next regularly scheduled election or at a special election called
for the purpose of holding the referendum, but may, in no event, be less
than 30 days after the adoption of the annexation ordinance. The
municipality shall publish two newspaper notices concerning the
referendum prior to the referendum itself.
In the referendum the ordinance must be submitted to a vote of the
registered electors of the area to be annexed. The governing body of the
municipality may, however, also choose to submit the ordinance of
annexation to a separate vote of the registered voters of the
municipality.
If the referendum is held only in the area proposed for annexation
and the ordinance receives a majority vote of the voters of that area,
the ordinance of annexation will become effective on the effective date
specified in the ordinance.
If the referendum is submitted to a separate vote of the registered
voters of the annexing municipality and the area to be annexed and a
majority of the voters in each area support the ordinance, the ordinance
of annexation will become effective on the effective date specified in
the ordinance.
If there is any majority vote against annexation, the ordinance shall
not become effective, and the area proposed to be annexed shall not be
the subject of an annexation ordinance by that municipality for a period
of two years.
Section 171.044 of the Florida Statutes provides procedures for
citizens of a reasonably compact unincorporated area that is contiguous
to a municipality to petition the governing body of the municipality to
be annexed to the municipality.
Larger areas would have great difficulty satisfying this requirement
which states as follows:
"Upon determination by the governing body of
the municipality that the petition bears the signatures of all owners of
property in the area proposed to be annexed, the governing body may, at
any regular meeting, adopt a non-emergency ordinance to annex said
property and redefine the boundary lines of the municipality to include
said property." Such unanimous support makes this procedure impractical
except for areas with few petitioners.
In 1974 the Florida Legislature enacted the Formation of
Municipalities Act (Chapter 165, Florida Statutes) to provide, for the
first time, state standards governing municipal incorporation. This law
provides that a charter for incorporation of a municipality shall be
adopted only by a special act of the Legislature upon determination that
the standards included in the law are satisfied.
Five standards are specified in the law:
- It must be compact and contiguous and amenable to separate municipal
government;
- It must have a total permanent population …of at least 5,000 people
in counties with a population of more than 75,000;
- It must have an average permanent population density of at least 1.5
persons per acre or have extraordinary conditions requiring the
establishment of a municipal corporation with less existing density;
- It must have a minimum distance of any part of the area proposed for
incorporation from the boundaries of an existing municipality within the
county of at least 2 miles or have an extraordinary natural boundary
which requires separate municipal government;
- It must have a proposed municipal charter which:
- prescribes the form of government and defines the responsibilities of
the executive and legislative functions, and
- specifies that the legislative body of the municipality cannot be
prohibited from exercising its powers to levy any tax authorized by the
constitution or general law.
According to Legislative Committee on Intergovernmental Relations (LCIR)
staff, one of the agencies designated by the Legislature to review all
incorporation proposals, the minimum distance and density standards have
often been waived by the Legislature.
The incorporation process is initiated by the citizens of or
organizations located in the community that wants to become a
municipality. The other steps discussed here all follow from that
initiative.
Since 1996 the Formation of Municipalities Act has required that a
feasibility study be completed and submitted to the Legislature in
conjunction with the incorporation legislation at least 90 days before
the first day of the regular session of the Legislature during which the
municipal charter would be enacted. In 1999 the law was amended to
provide eleven specific elements to be included in the feasibility
study. According to LCIR staff these requirements were not enforced for
incorporations considered during the 2000 session of the Legislature but
they expect incorporation initiatives considered in 2001 and beyond will
be required to satisfy the 1999 changes.
The following list briefly summarizes the statutorily required
contents of the feasibility study:
• The general location of the area and a map,
• The major reasons for the proposal,
• Characteristics of the area including its current land use
designations, zoning, land use characteristics of the area and a
description of the development planned for the area with a schedule of
expected starting dates,
• A list of the public bodies serving all or part of the area,
• A list of the current services being provided to the area and the
estimated cost of each,
• A list of proposed services to be provided to the area and the
estimated cost of each,
• Names and addresses of three persons submitting the proposal,
• Evidence of fiscal capacity and a 5 year organizational plan for the
area,
• Data and analysis to support the conclusions that incorporation is
necessary and financially feasible,
• Evaluation of the alternatives available to the area to address its
policy concerns, and
• Evidence that the proposed municipality meets the statutory standards
for a municipality listed earlier.
Elements of this study can and should be used on a comparative basis
for evaluating any annexation proposal that Bonita Springs might
propose.
The statute does not require a referendum for a municipality to be
incorporated because the Legislature wants to reserve the right to
create a municipality without a referendum if it should ever be
necessary. But legislative staff reports that all special acts
establishing a municipality in memory have included a provision
requiring the measure to be approved by the eligible voters within the
area proposed for incorporation through referendum.
Typically each year the Florida Legislature convenes in March. Thus
the feasibility study and the draft incorporation bill must be completed
and submitted to the Legislature by November or December of the
preceding year. Legislative staff suggests that earlier submission is
advisable. To be available at this time the feasibility study, due to
the new expanded requirements, should be initiated no later than the
beginning of the year prior to enactment, or about one and one-half
years before the bill becomes law. After the Legislature has acted the
referendum may be scheduled and conducted. Lee County pays the cost of
the referendum.
Chapter 165 of the Florida Statutes also includes procedures for the
merger of two or more municipalities and associated unincorporated
areas. Under these provisions the municipalities must adopt concurrent
ordinances followed by a majority vote of approval by the qualified
voters of each affected unit or area.
Now that the Board of County Commissioners has voted to send the
Estero Community Plan to Tallahassee for review by the State Department
of Community Development, we anticipate that final approval by the Lee
County Board should occur early in 2002. Once it is approved and becomes
part of the Lee Plan, Section 171.062 of the Florida Statutes specifies
its effectiveness should all or part of Estero be annexed by Bonita
Springs:
"(2) If the area annexed was subject to a county land use plan and
county zoning or subdivision regulations, these regulations remain in
full force and effect until the municipality adopts a comprehensive plan
amendment that includes the annexed area."
Thus the Estero Community Plan will be fully effective until Bonita
Springs amends its comprehensive plan and the
Estero Community Plan
provisions would, at the least, have to be considered by the Bonita City
Council when it amends its comprehensive plan.
The Estero Community Plan
and Incorporation of Estero as a Municipality
According to a recent report of the Legislative Committee on
Intergovernmental Relations "When a community incorporates, the
comprehensive plan of the county is the controlling document until the
municipality adopts its own comprehensive plan pursuant to Ch. 163, Part
II, Florida Statutes, and it is approved by the state."
Thus if Estero should incorporate, the
Estero Community Plan, once
adopted, will continue in full force and effect until the City of Estero
amends its comprehensive plan and it is approved by the state. This
process usually takes several years. The City of Bonita Springs is
nearly two years old and it has yet to forward its comprehensive plan to
the state for approval.
