Gateway Sun

There’s been widespread civil disobedience in Gateway over the past week as residents have been boldly speaking out against the proposed Boardwalk at Gateway community. We’re told hundreds of upset residents have even broken the law by … emailing their elected county representative?

You crazy kids.

So here’s what happened: in response to Boardwalk, many of you decided to email Commissioner Cecil Pendergrass to voice your opposition to the project in general – but some people also decided to implore that, if it came down to it, Mr. Pendergrass should vote against a zoning change requested by the developer.

And that crosses the line, according to Lee County.

Those who emailed Commissioner Pendergrass got a response back from his office saying: “At this time, we have been advised by county staff to treat this potential project as a rezoning case, thus falling under Lee County Land Development Code, section 2-191. Unfortunately, the commissioner is unable to legally communicate any substantive details about this case outside of a public hearing. This law is in place to ensure that the Zoning process is open and fair to all participants and applicants. We realize that many residents are unfamiliar with this regulation, however, please be aware that there are potential civil or criminal penalties that may be imposed on anyone who intentionally makes or attempts to initiate an unauthorized communication with a County Commissioner or their assistant and vice versa.”

I don’t have a law degree, but my immediate reaction to this was to ask how it was possible the county passed a law that seemed to violate both the Petition Clause and general “freedom of speech” elements of the First Amendment.

And yet there it was. Section 2-191 of the Lee County Development Code makes it illegal to contact a County Commissioner about a zoning case. Maximum criminal penalty for doing so is a $500 fine and/or 60 days in jail.

In disbelief, I asked Lee County’s legal staff to let the public know how it was possible the county could pass a law that (in my opinion) supersedes the Constitution.

Senior Assistant County Attorney John Fredyma wrote back. Here is his answer in full:

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Dear Mr. Kuntz:

Some of your questions/comments with respect to Lee County’s zoning process were passed along to me, and I have been requested to provide you with the following information for your use and benefit:

Approximately 30 years ago, the Board of County Commissioners (for Unincorporated Lee County) first adopted regulations prohibiting ex parte communications when a zoning or land use matter will be, or has been, referred to the Lee County Hearing Examiner, or for a final decision by the Board of County Commissioners.

That original prohibition is presently codified in Chapter 2 of the Lee County Land Development Code (LDC), more specifically in LDC §2-191, and makes it unlawful for anyone to knowingly communicate with a Commissioner with respect to the merits of any pending zoning case unless the communication takes place during a scheduled public hearing. (Emphasis added.)

This prohibition is applicable to all forms of communication, e.g., personal contact, telephone/cellphone, letter and/or e-mail. This prohibition has not been determined to be a denial of due process nor an abridgement of the Constitutional rights of “free speech.”

An opportunity to speak to a Commissioner(s) is available when the matter goes to public hearing. However, because of the County’s typical two-step public zoning hearing process, you must appear and participate (speak/comment) in the zoning hearing when the case is before the Lee County Hearing Examiner, if you wish to preserve your right to address the Board of County Commissioners in a subsequent final public zoning hearing.

If you do not participate in the hearing at the Hearing Examiner level, you may still appear at the final public hearing when the matter goes to the Board of County Commissioners; however, you will not be afforded an opportunity to speak to the Commissioners in that hearing.

Additionally, if you wish, during regular business hours, contact the Division of Zoning at the County’s Department of Community Development and speak to Staff about any zoning case. You may also appear and view anything in the application file (without cost). Additionally, the zoning application/case file is generally available on-line using the following link: https://www.leegov.com/dcd/zoning/zsearch/cases (At the present time I do not have a case number or name for this project.)

With the foregoing in mind, attempts to communicate with any Commissioner (or either of the Lee County Hearing Examiners) outside of an appropriately advertised public hearing with regard to the merits of this or any zoning case will be considered an intentional violation of County Ordinance.

Please do not hesitate to let me know if you have any questions.

Sincerely,

John J. Fredyma

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Now, for me, this was the key sentence: This prohibition has not been determined to be a denial of due process nor an abridgement of the Constitutional rights of “free speech.”

I believe this is legal-speak for: a First Amendment defense against Section 2-191 has not been tested in court.

I mean, you could get a judge who says that you are provided the opportunity to petition your elected official on zoning matters through the hearing process, so Section 2-191 is valid.

Or you could get a judge who says that your right to petition the government is not limited to public hearings, so Section 2-191 is invalid.

But what I think about Section 2-191 doesn’t matter. What matters is what Lee County thinks, because they have actual enforcement powers. And they think their law is valid, so you should keep that in mind if you want to be a big-time rebel and email Commissioner Pendergrass about a zoning concern you have.

You may be wondering … what will happen to those people who already unknowingly violated the obscure section of the Lee County Development Code by emailing Mr. Pendergrass?

We have some good news.

A high-ranking Lee County official called me last week and explained that as long as you don’t continue to email/contact members of the Board of County Commissioners about this or any other zoning matter, they’re not going to charge you or further pursue things for emailing them this one time.

They’re aware that nobody knows or cares about what’s in the stupid Lee County Development Code. Lee County knows that you just wanted to be heard by your elected leaders, you weren’t trying to break any laws.

But the official did say that if they’ve already told you to stop contacting Commissioner Pendergrass (or any Commissioner) about this zoning matter and you keep doing it, then they probably would take action.

So the bottom line is all of you get a pass this time around. But you better not send any more of them zoning emails to the Board of County Commissioners, you bunch of hooligans.

If you have any other questions about Section 2-191, you’re encouraged (but not really) to contact the County Attorney’s office at 239-533-2236.

About Jeff Kuntz

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Editor of the Gateway Sun and owner of restaurant delivery service Florida Food Runner.

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