FORT MYERS BEACH
LOCAL PLANNING AGENCY MEETING
JANUARY 22, 2002
Town Hall - Council Chambers
2523 Estero Boulevard
FORT MYERS BEACH, FLORIDA
I. CALL TO ORDER
The meeting of the LPA was opened by Chairman Betty Simpson on Tuesday, January 22, 2002, at 12:00 p.m..
Members present at the meeting: Hank Zuba, Nancy Mulholland, Jane Plummer, Betty Simpson, Jessica Titus, Harold Huber, Jodi Hester and Roxie Smith.
Excused absence from meeting: Anita Cereceda
Staff present at meeting: Town Manager Marsha Segal-George, Deputy Town Manager John Gucciardo, Dan Folke and Bill Spikowski
II. INVOCATION AND PLEDGE OF ALLEGIANCE
Invocation was made by Chairman Betty Simpson. All assembled and recited the Pledge of Allegiance.
III. PUBLIC COMMENT ON AGENDA ITEMS
None.
IV. WORKSHOP ON NON-CONFORMING BUILDINGS AND USES
Bill Spikowski, Planning Consultant for the Town, came forward and explained that this topic is
important and does desire as much time as it takes to explain. When this goes to final public hearing this part of the code my not get that much attention. This will have a great impact on what people can do with their properties. The code inherited from Lee County is relatively lenient on things that are non-conforming. The new code is also relatively lenient. The problem with the current code is understanding what is says. The changes are made very carefully, because it can have a significant impact on many people.
The term non-conforming is confusing. Non-conforming means something fairly specific and states that when it started it was illegal, but the law has changed. Since it does not now meet the code it is given protected status. If it were not for this type of provision in the code you would always be afraid to make changes. This allows reasonable changes without being burdensome on those who know longer comply and conform with the code. He explained that the non-conforming use on the building alone is treated very leniently. Other types of non-conforming buildings that do not meet the flood plain rules have a much stricter requirement on what can be done to expand or maintain. The other two are non-conforming uses. Non-conforming use is treated very strictly in this code. A non-conforming use is something that is trying to be gotten rid of. It cannot be expanded. The third major category is the non-conforming lot, which are normally vacant lots. Sometimes this refers to a lot that you want to tear down a building and make it vacant again, and start a totally new construction. The non-conforming lot rules are very customized to Fort Myers Beach. If the non-conforming lot rules are to be changed they must be changed through the Comprehensive Plan. The LPA will have a chance in the next couple of months to re-examine one of the non-conforming lot provisions that is in the plan.
The last major concept is amortization. This was discussed a few weeks ago in the discussion of boathouses. These are rare and it over rules the protection given to things that are non-conforming by giving a specific time period to which something must be removed. Some examples are for certain signs, boathouses and Jetski structures for rentals. The LPA may find others that they want to use this provision for.
Jane Plummer asked for examples of illegal buildings. Are there any illegal buildings presently or have had to have removed? Bill Spikowski replied that he does not know that they do. He hopes that they do not. Illegal buildings do sometimes pop up. He indicated if a building was built that did not meet the non-conforming rules, because it never qualified it then would be deemed illegal.
Jane Plummer asked about the amortization and referred to “certain non-conforming” buildings. How do you determine “certain”? Bill Spikowski replied that he thought of listing a specific reference. He may be able to work the sentence around and did not intend for it to be vague.
Jane Plummer has concerns about some properties on canals that have seawalls built into the canal and were filled in with land. Strips of land are now owned by Lee County. She indicated that each home is either non-conforming or property that needs to be vacated. Bill Spikowski replied that there is a section on how to measure the setbacks to the water body. In this particular section the setback could be measured to the seawall. The setback issue can be dealt with.
Roxie Smith expressed that she has some confusion regarding the above conversation. Bill Spikowski gave an example if the rule states that you cannot put a swimming pool cage closer than 10 feet to the waterbody and you have a 10 foot space between your lot line and seawall you would have to stay 20 feet back from the seawall. The language that he is suggesting would allow you to measure the 10 foot setback to the seawall, even though the space in between in not owned by the property owner. This can be done through this code.
Town Manager Segal-George replied that the County has issued permits in the past. Some properties have lawful permits. Part of the problem are the old plats.
Some discussion was held regarding parcels throughout the island that look as if they were deeded to the governmental agency but were not. Town Manager Segal-George indicated that they would have to search back to the original heirs to try and get deeds or possibly seek a quiet title.
Hank Zuba questioned in the event of rebuilding who determines the 50% rule, and why do they allow a non-conforming building or use to be replicated? Bill Spikowski replied that the Town plan states that this will be their policy. They will not try to get rid of them, but restrict them for being expanded. This is an overriding policy question that this code is implementing. He explained what is new in the Town’s plan. The previous plan stated if it is knocked over by a storm it can be rebuilt the same size, but stronger. The new code states that it may be rebuilt without it being knocked over. This is a major change. He is nervous that this will be misused.
Jane Plummer questioned the repairing of non-conforming buildings and asked who the Director is? Bill Spikowski replied that the Director is defined all throughout this code as the person that the Town Manager appoints to enforce the code. Presently it would be Bob Stewart, Chief Building Official.
Jane Plummer questioned ALL repairs. If you need to replace a window you must come an ask? Bill Spikowski replied that there is a section in the code which states that there is a whole group of repairs that are so minor you do not need a permit. This is very explicit and is more lenient than it used to be. This can be found in Chapter 6 - Ordinary Minor Repairs.
Roxie Smith asked if this is applying to some of the homes on the island that are built less than what the current flood plain is? Bill Spikowski replied that it is. This definitely applies to buildings who have living space below the flood plain. This is the same rule since 1984.
Jane Plummer asked when you correct a flood plain non-conformity don’t you have to bring everything else up to standard? Bill Spikowski replied that when enlarging the building you cannot increase its non-conformity. If it is too close to the setback and you raise it, as long as it is no closer to the setback, this would be OK.
Hank Zuba noticed that the floor-area-ratio was added. Is this more restrictive? Bill replied that currently the code as it exists has a measure called lot coverage. Floor-area-ratio counts the total square footage of each floor. He is proposing to replace the lot coverage concept with the floor-area-ratio. The current measure does not measure building bulk.
Jodi Hester questioned Section 34/32-37 #4 - The replacement building cannot exceed the lawful density and intensity of the existing building - Does this allow the same number of hotel units? Bill Spikowski replied that this is an important sentence and needs to be discussed. The Comprehensive Plan has the words that the replacement building cannot exceed the lawful density or intensity. This was too vague in the plan. This sentence repeats the wording from the plan and defines it in this code to mean something very specific. It defines in the code to mean the same square footage. He referred to I. b and c, which are the references that explain the answer to her question. In the case of a hotel you may have as many units as you presently have. The total square footage in the buildings cannot be anymore, except the slight allowance for 30 extra square feet per bathroom.
Jodi Hester questioned if they set a minimum size of hotel rooms? Bill Spikowski replied that
only on Old San Carlos, and only in an area where they took off one cap on hotel rooms and substituted another cap. Some proposals exist in the hotel section for minimums, but they are 120 square feet - nobody builds for less than this.
Roxie Smith feels the issue of undersized units needs be addressed. The trend is to now have units even bigger than what is being discussed. If they are wanting people to improve their property they will not be able to do it economically. Bill Spikowski feels that he has this covered. He referred to page 179 - They can be rebuilt with the same total interior square footage, plus 30 square feet per bathroom. The next item addresses that at the owners option the same square footage can be used for few of the large guest units.
Roxie Smith replied that they need to consider being a little more lenient. If she owned a hotel and was told that she needed to give up units in order to go with the trend to make them larger economically this does not make sense. Bill Spikowski replied that if the hotel owner has 3 times the bulk of a building that the next door neighbor has and one cannot expand no matter what than why should the other be allowed to expand even further. How do you explain this to the average person? Roxie Smith feels that this needs to be accomplished by some sort of percentage. If a resort or hotel has been in business long enough on this island to get into the kind of condition to upgrade the property she has no problem saying that they can go back to a somewhat bigger property. If they would like to encourage the upgrading of properties on Fort Myers Beach with some of the older accommodations it will not happen if you tell them they must have exactly what they presently have. Bill Spikowski replied that he sees a stampede to do this. This has never been allowed before.
Town Manager Segal-George commented that they need to review the framework they are operating under. Under the County code there is no pre-disaster build back. Some extraordinary situations exist. These would be key changes in the Town’s code vs. what was the County’s code. She went on to discuss that a policy sounds great until it needs to be applied to a real case. When it is applied to a case it is difficult to determine how it should work.
Jane Plummer agrees with what was said by Roxie Smith regarding square footage. If small units exist and are grandfathered in she does not understand not being able to expand square footage to keep up with what is acceptable and improve the property. Wouldn’t it make sense to control it by number of bedrooms? She felt that they have had situations in the past and gave an example of White Cap. Bill Spikowski replied it should state that it is measured by square footage. If someone wants to do something different and get a deviation from the rule it will be on the front page of the request.
Dan Folke commented on the Pink Shell - Captive Useppa build back. When they started the discussion began with why would they want to build back if they cannot build bigger units. What was approved and agreed to is actually what is being proposed here. The Captiva Useppa build back is consistent with what is being proposed here. The White Cap is not consistent with what is being proposed here.
Bill Spikowski went on to give an example. Two identical buildings were built the same year in a single family neighborhood. One has been converted through the years into three little apartments and the house next door is just a single family house. If the LPA is not careful in this rule they will allow by right without any deviation the three unit house to be replaced with a triplex when the person next door cannot expand at all. This applies all across the island.
Hank Zuba is sympathetic to the idea of improvement. However, there are ways to improve a building without increasing density. He fears that trying to provide a percentage of improvement will encourage redevelopment and may have impact on historic properties. He likes the idea of control and a variation is always possible through a request for a variance. Adding units does not necessarily mean it is an improvement. A more restrictive code is necessary and will allow them to see the changes to be made.
Jodi Hester expressed that she is in agreement also with new code. She likes it because they can vary it.
Jane Plummer discussed the issue of mobile homes. The homes get to a point where they need to be moved and you cannot get them the old size. This eliminates the parking space? Bill Spikowski replied that this has been in effect since 1984. Park models exist and you can presently get smaller than you used to be able to get. He is unsure that this will be a problem. Mobile home parks on a constantly flooding barrier island is one of the non-conforming uses that they would ultimately like to see go away. A very explicit redevelopment plan exists for both and would be pre-approved. He expressed that this is the current rule and they could make it more lenient, but he does not see why they would want to.
Jane Plummer has concerns with the smaller buildings and feels that coming before the Town will create a financial burden and will cause some to become discouraged. Bill Spikowski replied that this is a requirement in the Comprehensive Plan and cannot be varied. He hopes with a couple years experience they will have a method figured out. Only certain people will need to come through this process. At that point the rule can be changed in the Comprehensive Plan. He explained that there is a difference between small units. Also, if there is an application requirement and is not helpful in a particular case a person can ask by letter before the application is submitted if the requirement can be skipped.
Jane Plummer discussed the interior square footage. Some confusion exists regarding the wording. Bill Spikowski will re-word this to make it clearer.
Jane Plummer commented that she is still having difficulty with the exact interior square footage to rebuild a dwelling. Bill Spikowski replied that in the Pink Shell case they were trying to decide how to measure. The first idea was to measure to the outer perimeter and during the process of this case they experimented with measuring on the inside of the units. This seemed to be more sensible to compute it that way. Pink Shell was a great example due to it containing so much complexity.
Jane Plummer discussed the discontinuing of a non-conforming use. She tried to come up with an example and she felt that one would be the Sand Bar. This has not been in use for over 9 months, so does this go away because they have not rebuilt. Bill Spikowski replied that this is correct. The rule has been 6 months forever and he is suggesting that they expand it to 9 months.
Jodi Hester questioned if the non-conforming use includes the mother-in-law apartments? Bill Spikowski replied yes. The over density buildings are deemed by specific wording as non-conforming buildings.
Town Manager Segal-George replied that most of the mother-in-law’s are coming in under the owner occupied. If they do not violate FEMA and were built before 1984 most are qualifying under owner occupied, but they are non-conforming. If you are owner occupied it allows you to rent out an apartment in a situation that prior to this change would not have been allowed .
Bill Spikowski discussed that the section on non-conforming lots is more of an administrative description of how it works and how you determine when a lot was created. This is more administrative than policy, because the Comprehensive Plan describes the policy. Some changes to the Comprehensive Plan are presently being regretted.
Jane Plummer does not agree with the section on ownership requirements. She feels that this is taking away property rights. Bill Spikowski replied that this is verbatim from the Comprehensive Plan. If it was eliminated here it would not change a thing, because it is already in the law. This will be revisited in March or April and a change could be made at this point.
Jane Plummer commented on abutting non-conforming lots that may be combined and re-divided to create larger dimension lots as long as such recombination includes all parts of all lots. She gave an example of (3) 50 foot lots owned by the same person. They are legal buildable lots and could be 3 lots. The owner would like to reconfigure them into an 85 foot and 65 foot lot. According to this they would not be allowed, because they are not taking all the lots. Bill Spikowski replied that the issue is to not leave a remainder lot of only 10 feet wide. He reviewed the language and explained to Jane that he did not see anything that would forbid her from accomplishing her scenario.
Jane Plummer expressed that she has never seen the date January 5, 1978 or February 4, 1986. Where did these dates come from? Bill Spikowski replied that these are the dates the County completely revamped the zoning ordinance. In 1978 was the first major revision that changed the minimum lot size requirements. It was redone again in 1986.
Chairman Betty Simpson asked Bill Spikowski what action he needed from the LPA? Bill Spikowski replied that he has 7 or 8 items that were not clear. He is hoping to find a way to write these to make them clearer. He will make the changes and can schedule for the LPA to see them at the next meeting. He will be bring other parts of the Land Development Code for Chapter 34 on February 19.
It was agreed by the LPA for him to bring the items back highlighted for them to review.
Jodi Hester asked if Chapter 6 is finished? Bill Spikowski replied that it is already adopted and the amendments are February 4. If this is adopted that night at Town Council he will print the LPA a new copy.
Jodi expressed that she has concerns with the repeated damage by flooding. Bill Spikowski replied that the repeated damage by flooding language has been discussed at great length at the last meeting. He believes that they will be leaving it the way it was. He is sending to Council another memo summarizing the items discussed at the last meeting. He will send copies to the LPA members, so they will have the very latest information.
Bill Spikowski expressed that February 19, 2002 will be the next Land Development Code Workshop. He has finished drafts of most of the rest of Chapter 34. He did some more work on garages for residential buildings and has some new information to show the LPA. All that is left on Chapter 34 is the new zoning districts.
Jodi Hester thanked Bill for his patience. He explains everything very clear. She appreciates his work.
Town Manager Segal-George indicated that she needs the LPA to designate who will be the LPA representative to the sub-committee for short term rentals.
It was decided that Jane Plummer will be the representative.
Town Manager Segal-George expressed that they have had difficulty with a quorum on the LPA Historic Sub-committee. They are looking to see if anyone from the LPA would like to be part of this committee. Betty Simpson indicated that she would like to be part of this committee. Jessica Titus would also like to be involved.
V. LPA MEMBER ITEMS AND REPORTS
Nancy Mulholland - Expressed that today’s meeting was enlightening. She thanked Bill.
She discussed the terrible accident on Sunday. One thought came to her mind regarding trees and protecting walkers and bikers. She hopes that the movement toward Streetscaping may prevent something like this for happening again.
Roxie Smith - Mentioned the sign ordinance. Lots of new little signs are growing. She is not sure that they are growing in areas they should be. Is this Ok?
Town Manager Segal-George expressed that they have been lacking with some of the signs. Primarily because without them people cannot see the locations. These signs get brought out and put back in. This is not true with any stationary signs that have an permanence. If the LPA feels that this is a problem it can be revisited. The LPA members will notice the signs and advise her for the next meeting.
Chairman Betty Simpson - Echoed Nancy’s comments on the trees to try and save the bikers and walkers.
Thanked Jane for the goodies. February is Jessica’s month.
Welcomed the new members. They have had some challenging issues to get their feet wet on.
VI. PUBLIC COMMENT
None.
VII. ADJOURN
The meeting was adjourned at 2:05 p.m..
Respectfully Submitted,
Shannon Miller
Transcribing Secretary