2022 ELECTION ISSUE BRIEF
Most people are not aware that in Lee County, when a rezoning application is considered, there is a prohibition on communications with County Commissioners, the Hearing Examiner, and their respective staffs (a.k.a. a gag rule). People discover this when they hear about a rezoning application that they have an interest in and want to offer comment to their government.
BACKGROUND
This is how our county government handles rezonings:
- If a citizen tries to communicate in any form with County Commissioners, the Hearing Examiner, or their staffs, regarding a rezoning, there are potential civil or criminal penalties that may be imposed. Violations of the gag rule can result in fines of up to $500 per offense and up to 60 days in county jail.
- With rare exception, other counties in Florida allow open communications for rezoning cases. As far as we could find, Lee County is the only county that criminalizes such communications between the public and county officials. All of the cities in Lee County allow open communications with council members for rezonings.
- Property owners within 500 feet of a proposed rezoning are sent a snail mail notice of the Hearing Examiner’s (HEX) meeting, but others have to find out on their own. Ahead of the HEX meeting rezoning signs are posted on the property. By that time county staff has reviewed the application and made their recommendation.
- A citizen must attend and speak at the Hearing Examiner’s (HEX) meeting in order to be allowed to speak when the application goes to the Board of County Commissioners (BOCC). The meetings are held during the day and the public does not know when they will be allowed to speak. For larger or more controversial cases, the meeting can last 2 days or more, so the public may have to return on another day to speak. The HEX has final say on relatively minor rezonings, although recently the BOCC has granted the HEX authority to have final say on more major rezonings. For the rezonings that go before the BOCC, residents cannot bring up any facts or topics not discussed at the HEX meeting, and are allowed only 3 minutes to comment.
- There is never an opportunity at any time in the rezoning process to have a conversation with any of the decision makers (HEX or BOCC).
- In a letter to a citizen who unknowingly tried to email a commissioner about a rezoning case, the county responded: “This law is in place to ensure that the Zoning process is open and fair to all participants and applicants.” So the county’s gag rule is its way of providing an open and fair process. The letter also noted the potential civil or criminal penalties if the citizen tried to communicate again.
- In the same letter the county states: “This prohibition has not been determined to be a denial of due process nor an abridgement of the Constitutional rights of free speech.” This is because the county’s gag rule has not been challenged in court so a legal determination has not been made. Experts tell us the law is illegal, but challenging the gag rule can be a very expensive process.
- In defending the gag rule, the county attorneys say there cannot be open communications because rezoning cases are quasi-judicial, and applicants have a right to face those opposed to their application. They admit there is a “carve out” (their words) in state law to allow communications with commissioners for rezonings, but they say the legality is “problematic” (whatever that means). They don’t explain why other counties can have open communications but Lee County cannot.
- With regard to another development case (not a rezoning), one county attorney wrote: “The open and honest exchange of ideas and debate of issues are the hallmarks of good government and lie at the very heart of the conduct of each and every elected official and employee of Lee County.” He didn’t explain why this doesn’t apply to rezonings.
- In defense of the gag rule, one commissioner said it helps prevent corruption. He went on to cite the corruption around the east Lee County sewer contract from decades ago. That was not a rezoning case. If a commissioner is going to be corrupt, they’ll be corrupt regardless of the gag rule. Another commissioner said it wasn’t an issue because no one has complained about it. Of course that is not true.
SO HOW CAN THIS BE FIXED?
Eliminate the gag rule so that citizens can communicate with their Commissioners and the Hearing Examiner as is done in other counties.
Have the Commissioners and the Hearing Examiner keep a publicly available log showing who they communicated with for each case, and any associated documents. The log should include the date and whether the person represents the applicant.
There needs to be an easy to find page on the county website listing all of the current rezoning applications, including all associated documents (including commissioner’s logs) and public meeting notices.
Elect a county commission to make the appropriate changes above, and represent the citizenry instead of their major financial donors.