Cape Coral scrubs new car washes, storage units for remainder of year

Despite protests from the building industry, Cape Coral approved moratoriums on new self-storage and car wash developments this week.

"You can't take people's property right," said Joe Mazurkiewicz, former mayor of Cape Coral and president of BJM Consulting. "This bad legislation on a public policy level; this bad legislation legally."

For the past few weeks, Cape Coral City Council has been contemplating moratoriums that would "pause" new self-storage and car wash developments for the rest of the year, arguing that they take precious commercial land as the city grows at a rapid pace.

At Wednesday's council meeting, a majority of the council members voted to approve the action, though with some hesitation from a few members.

What are the moratoriums, how long will they last?

Any applicant seeking to build a car wash or storage facility that hasn't been issued a final development permit, building permit, site plan approval, or any other official action by the city before April 17 will not move forward.

The moratoriums will last until Jan. 17, or until the city council adopts changes to the city's land development codes.

The ordinance for the self-storage and car wash moratorium states that because the moratorium applies to unimproved land that "by its vacant nature did not suffer property damage from Hurricane Ian or Nicole," they are not affected by Senate Bill 250.

The Legislature passed Senate Bill 250 in 2023 as a way to prohibit counties and municipalities within 100 miles of Hurricane Ian or Nicole's landfall from adopting more restrictive or burdensome procedures to their comprehensive plans or land development regulations concerning review, approval, or issuance of a site plan, development permit, or development order before Oct. 1, 2024.

Cape Coral City Council had previously passed a moratorium on self-storage facilities in April 2023, which lasted until January.

Property owners can file a "claim of vested rights" within 90 days of the moratorium and hold a public hearing before the council to begin or complete their developments.

Vested rights will be granted if property owners can demonstrate they have applications for administrative review for development permits, building permits, site plan approval, and any other official action by the city for self-storage received on or after March 20, 2024, and before April 17, 2024; be making substantial expenditures on good faith; and if it would be found to be highly inequitable to deny the owner the right to complete development.

Cape Coral has 1.5 million square feet of existing self-storage space throughout the city and is estimated to have 1.6 million square feet of self-storage space either in permitting or under construction, bringing the total to 3.1 million.

For car wash facilities, the city estimates there are 16 standalone facilities, with nine accessory car wash facilities attached to fueling stations.

Another 12 standalone car washes are in permitting or under construction, for a total of 28.

The industry and local leaders speak out

Mazurkiewicz spoke on behalf of many clients, who had nonresidential properties in the city and blasted the moratoriums.

"Restrictions on certain sites, to allow specific usage, are the city government picking winners and losers for property owners," Mazurkiewicz said.

He had issues with the city's reasoning for restricting self-storage developments arguing that not all developments currently in permitting will get built.

Mazurkiewicz said the city council already approved a moratorium but presented no study or land-development changes.

"You already did this once, did you not do this study last time or are you lying to us this time?" Mazurkiewicz said.

Mazurkiewicz said the city is in violation of Senate Bill 250, which he said was designed to stop cities from taking property rights in response to Hurricanes such as Ian and Nicole.

"They're saying it's okay to go forward now on the fact that that was supposed to be for damaged properties, but the bill clearly states for construction, reconstruction, and new construction," Mazurkiewicz said.

Kevin Besserer, director of public policy for the Royal Palm Coast Realtor Association, spoke against the moratoriums

"I would support land development code changes, I would support zoning changes, however, what we are talking about is a moratorium," Besserer said. "These property owners, it doesn't matter if they are building a storage facility, a Chick-fil-A, a Target, or a single-family home, they have private property rights."

Donna Germain, president and CEO of the Chamber of Commerce of Cape Coral, said her organization opposed both moratoriums as they violated the Bert J. Harris Jr. Private Property Rights Protection Act.

The act states that "When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government."

"The chamber supports the following: A free market where the laws of supply and demand provide the sole basis for the economic system without government intervention," Germain said. "We oppose federal, state, county, and city statute regulations that unnecessarily restrict the free exercise of private property rights."

Mazurkiewicz concurs with Germain's assessment and said the city is taking away property rights from people without any public purpose yet.

"They actually should have (a study) done before they take people's property right, not put a pause," Mazurkiewicz said.

Mazurkiewicz said he anticipates legal action against the city as soon as soon as a developer has a sale fall apart as a result of the moratoriums.

"You have big national, international property owners and developers with law firms bigger than the city's law firms that are ready, willing, and able to take action, and I think they will," Mazurkiewicz said.

Cape Coral official dissent

Councilmember Richard Carr made a surprise motion to deny the approval of the self-storage moratorium, citing concerns about the previous moratorium and Senate Bill 250.

"It's not an easy decision to make for me, but I felt it was the right one at this time," Carr said.

Councilmember Bill Steinke, who said he believes in the free market and property rights, said he was struggling with balancing the needs of the community with the future needs for curated smart growth.

"One of the things for me that made a difference in this ordinance is that it's truly defined as a pause," Steinke said.

He also said the exception gives him confirmation in supporting the ordinance.

"It also does not hurt anyone that's currently in the process, and that is listed under the exception," Steinke said.

Steinke asked what happened with the previous moratorium's study, and City Attorney Aleksandr Boksner responded that changes needed to be made in light of the new law.

"Because of (Senate Bill 250) and what was discovered subsequently by the Florida legislature, it ultimately altered our position regarding moving forward with this matter," Boksner said.

Councilmember Dan Sheppard said he's not a fan of either type of development, though recognizes their use and needs, and worries they will continue to gobble up finite commercial property in the city.

Mayor John Gunter concurs with the sentiment and need for smart growth and supported the pause because the timeframe is short.

"Just because you have growth, that doesn't mean it's good, smart growth," Gunter said.

Carr's denial motion failed in a 1-7 vote, with Carr being the sole supporter.

For the car wash moratorium, Carr brought up the possibility of shortening the duration.

He was more open to a moratorium on car washes because of what he saw as a detriment to neighborhood properties.

Councilmember Robert Welsh pointed out that there's already language in place that will allow the council to end the moratorium as soon as changes are made and adopted.

The council approved the motion unanimously.

This article originally appeared on Fort Myers News-Press: Cape Coral's approves development moratoriums despite industry protest