FORT MYERS BEACH

LOCAL PLANNING AGENCY MEETING

MARCH 12, 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 Roxie Smith on Tuesday, March 12, 2002, at 12:05 p.m..

Members present at the meeting: Anita Cereceda, Nancy Mulholland, Jane Plummer, Betty Simpson, Jessica Titus, Harold Huber, Jodi Hester, Hank Zuba and Chairman Roxie Smith.

Excused absence from meeting: None.

Staff present at meeting: Town Manager Marsha Segal-George, Deputy Town Manager John Gucciardo, Dan Folke, Bill Spikowski and Jerry Murphy.

II. INVOCATION AND PLEDGE OF ALLEGIANCE

Invocation was made by Chairman Roxie Smith. All assembled and recited the Pledge of Allegiance.

III. PUBLIC COMMENT ON AGENDA ITEMS

None.

IV. APPROVAL OF MINUTES FROM JANUARY 22, 2002; FEBRUARY 12, 2002

Betty Simpson indicated that the minutes from January 22, 2002 were approved at the LPA meeting of February 19, 2002.

MOTION: Made by Betty Simpson and seconded by Jane Plummer to approve the minutes of February 12, 2002 with corrections. Motion passes unanimously.

Corrections to changes to minutes of 2/12/02:

1. Betty Simpson - page 5 - strike change and replace with chance.

2. Hank Zuba - page 4 after the word modify add the following “ the construction (Ex. using two

layers of drywall in place of sprinkling.

3. Harold Huber - page 5 (middle of page) insert the word “is” in between this is correct.

4. Betty Simpson - page 8 (3/4 down page) insert the word “in” following they are.

5. Betty Simpson - page 10 - insert (?) Fowler.

6. Betty Simpson - prior to recess - comment by Town Manager - strike the word “the”.

7. Hank Zuba - page 13 - comment by Hank Zuba - reverse the word “comment” and insert before the words on land.

V. VAR2002-00001 LINDA K. MEAD TRUST - ENTRY REPLACEMENT VARIANCE. A variance from LDC Section 34-1575 (a) to allow total replacement of existing non-conforming stairs, decks and/or landings seaward of the Coastal Construction Control Line. The subject property is located at 5400 Estero Boulevard, Fort Myers Beach.

Jim Mead came forward and explained that they had a permit to remodel the interior of their home. During the construction phase, while working on the entrance way to the steps, the owner was advised by an inspector due to the condition of the wood it should be replaced. This work was completed and when he tried to obtain the occupancy permit he was informed that he had not received a proper permit. Subsequently, in October he was advised that he needed to get a variance. He is here today asking for this variance to obtain his permit.

Jane Plummer asked if he replaced the entire straps which go across? Mr. Mead replied that it looks as if there is a post in each one that is old.

Jane Plummer questioned that he did not go outside of the existing footprint? Mr. Mead replied that this is correct. The existing entry and exit remain intact. He did have four entry/exits doors and eliminated one on the street side. The two on the beach side remain for a total of three.

Jerry Murphy came forward to review the staff report. The staff report is in their packets and he directed the LPA’s attention to Exhibit B, which follows the zoning map. He indicated that the dash line running through the lot and building is the Coastal Construction Control Line. The land development code requires a variance for replacement of existing steps. In advance of this replacement the owner was not aware of this. At the time of the interior remodel he was advised to go ahead and replace these, which he did and later found out he needed this variance. Staff is recommending approval of this variance to clean up this issue. Staff feels that the property the way it existed creates the hardship. In order to return this property to an acceptable condition this repair needed to take place.

Hank Zuba asked how someone would be advised after a permit had been approved regarding this issue? Jerry Murphy replied that he tried to talk to the inspector. The inspector could not recall this specific case. Mr. Murphy’s understanding is that while remodeling the interior part of the home the inspector came out to check the phasing and noted that the exterior structures were not in great shape. The permit did state that bad wood could be replaced, so it was recommended. This seems to have been an oral exchange on site between the contractor for the property owner and the building inspector.

Nancy Mulholland questioned if this work has been completed? Jerry Murphy replied that the work has been complete. This is a case of a variance after the fact.

Jerry Murphy noted that the reduction from a duplex to a single family residence is very good. Also, the fact that he has three entrance structures as opposed to four is another reduction in intensity and they are very happy with the owner.

Mr. Mead confirmed that the information provided by Mr. Murphy is exactly how this happened. He was unaware and realizes this is no excuse.

Betty Simpson questioned when the street side porch was redone? Mr. Mead replied that all three were done at the same time.

Chairman Roxie Smith asked if anyone from the public wished to address the LPA. None was heard.

MOTION: Made by Anita Cereceda and seconded by Jane Plummer to approve the variance request with the conditions stipulated in the staff report. The variance is limited to the replacement of entry stairs, decks and landings attached to the portion of the existing single family residence located seaward of the 1988 CCL as shown in the attached plan as attachment B. Motion passes unanimously.

Town Manager Segal-George announced that this will go to the Council on April 8, 2002 at 9:00 a.m..

Anita Cereceda thanked Mr. Mead for the lovely improvements to this property.

VI. VAR2002-00003 SMOKIN’ OYSTER BREWERY - A variance from LDC Section 34-1174(d)(3)a. Requiring a minimum ten (10) feet rear property line setback to allow a minimum rear property line setback to zero feet. The subject property is located at 340 Old San Carlos Boulevard (Corner of Old San Carlos Boulevard and Third Street) Ft. Myers Beach. This case has been continued to April 9, 2002 at 12:00 p.m..

VII. VAR2002-00004 BUSHNELL RESIDENCE - A variance in the RS-2 (residential single-family) District from the required 10 feet side yard setback (per Fort Myers Beach Land Development Code Section 34-695) to 6 feet. The subject property is located at 675 Matanzas Ct., Ft. Myers Beach. This case has been withdrawn by the applicant.

VIII. ADM2002-00001 LAWRENCE & KAREN DREBES - Appeal of administrative interpretation that the floor plan of the proposed single-family dwelling to be constructed at 5850 Estero Boulevard represents the layout of a bed and breakfast. The subject property is located at 5850 Estero Boulevard, Fort Myers Beach.

Mark Ebellini came forward to represent the applicants. This is an appeal of an administrative interpretation that the Drebes plan for a single family residence in an RS-1 zoning district is in fact not a single family residence and represents the layout of a bed and breakfast. He explained that this house is intended to be the year round residence of Larry’s parents ( Larry and Nancy) who are residents of Fort Myers Beach at the present time. This will be a vacation home for their children and families. The legal position is straightforward. There is no basis in the land development code regulations for the rejection of the plans based on the layout that this home could be used as a bed and breakfast. The property is in the RS-1 zone. Single family residences are permitted in the RS-1 zone. Bed and Breakfast uses are not. He expressed that the height issue has been resolved. The plan is unchanged and so is the administrations position as to the layout of the building.

Karen Drebes came forward. She thanked the LPA for fitting them into their schedule today. She provided pictures to show that the Drebes family has been coming to the Fort Myers Beach/Sanibel area since 1974 for almost 30 years on an annual basis. She explained that her husband had a successful business venture in 1997, which has afforded them the opportunity to do something for their family. The decision was made to build a gulf front home for the entire family, because they met every year here on the beach.

In 2000 the idea was discussed among the family and a home was found and placed in escrow with the stipulation she and her husband would come out to look at it. Structural concerns existed and they contacted Ernie Cassidy for assistance. Ernie gave his structural opinion and they decided not to buy the home. They respected Ernie’s opinion and asked him for a Realtor referral. He gave them the name of Jim Jamison. They worked extensively with Jim and explained that they needed a home large enough to accommodate their growing family. The property in question was not for sale, but the owner was contacted and an offer was made and excepted. The present owner sold with the stipulation the renters would be allowed to stay until the permitting process was complete. The transaction was completed and a design was created between herself and Nancy to accommodate their family.

Karen went on to explain that Larry and Nancy would be living in the home 52 weeks a year and were not interested in too large of a home. The first idea they had was to try and divide the home into two layers. The first floor would be Larry and Nancy’s residence 52 weeks a year. The second floor was designed to accommodate the four kids and families. The second floor seems to be the controversial portion. It was decided to have four bedrooms for each family. This would allow each family the ability to leave their personal belongings. Also, each bedroom has a private bathroom to afford each family their privacy. She indicated that the staff report states there is direct access to the beach from these bedrooms and this is not accurate. She explained that Greg Johnson was hired to put the designs together and Ernie Cassidy will be the builder. Greg could not be present today, but he did provide a notarized letter. Ernie put together the construction drawings and turned them into Lee County. This is where they are today. She is baffled that they have to be present here today to prove their case. She feels that they are vastly improving Fort Myers Beach by building this home. She would be happy to sign any type of statement pertaining to the information provided by her today. She has brought several witnesses who will attest to the same story she has provided.

Chairman Roxie Smith asked for ex parte communications. Nancy Mulholland had conversation with Ernie Cassady and Keith Muller (Realtor) who worked with the Drebes’.

Ernie Cassady came forward and expressed that everything said by Karen has always been the intent. There was never the intention to have a bed and breakfast at this location. He explained that there is no violation in any of the designs presented. He would like to know what part of the land use plan or code have they violated? This always has been and always will be a single family house. It is a vast improvement over what is presently there.

Jim Jamison from Century 21 Tri-Power came forward. He expressed that the Drebes’ came to him after they had rejected a piece of property. They had asked to go up and down the entire beach to try and figure out where they could build a residence. When they were introduced to him by Ernie Cassidy it was for the purpose of a single family residence. This point has never changed. If there intentions had been for anything other than a single family residence two other opportunities exists that could have created something different.

Mark Ebellini commented that the allegation is this home is intended to be a business. This is not the case and he feels that the testimony indicates this. He expressed that there is no legal basis to make the qualitative determination as indicated in the staff report. He indicated that a recorded document could be prepared to indicate that the intention of this home is for residential. This offer was made to the Town prior to today and was also reiterated by Karen today.

Pam Houck came forward and indicated that before the LPA is an appeal for administrative interpretation on a building permit that was applied for as a single family home. The reviewer felt that this was an unusual design for a single family home. It was determined that this is the design that falls within the definition of a bed and breakfast. She reviewed the plans with the LPA and indicated that she misread the plans and the stairs do not go to the second floor deck. Based on the problems which have happened in the past on the beach staff did not feel they had the authority to approve the layout. This is the reason for the appeal.

Harold Huber questioned if this could be clarified with a deed restriction that it will not be used for commercial or that no rooms are rented for compensation? Pam Houck replied that the applicant has offered this type of restriction. She feels that this is something the LPA can look at for their recommendation to Town Council.

Anita Cereceda does not understand why this case has been flagged? She feels that the reason is due to what it could be? She indicated that the recommendation does not state approve or deny, but the recommendation says that the LPA should uphold the staff’s finding that the proposed building design represents the layout of a bed and breakfast. She asked what it is about this home that represents a bed and breakfast? Bathroom in each bedroom or all bedrooms facing the gulf? Pam Houck feels that the reviewer and herself felt that this was not the typical single family layout.

Hank Zuba questioned if there were any negotiations with regard to the density? Pam replied that to her knowledge there was none. She was not involved in any.

Hank Zuba questioned before denial was there discussion as to how the design may be modified? Pam replied that there may have been some discussion with Bob Stewart, but she was not privy to these discussions.

Dan Folke came forward and expressed after the plans were submitted and rejected he spoke with Ernie Cassady and went down to meet with Bobby Stewart. He explained that Bobby expressed that these plans look like the floor plans of every motel they have ever permitted. He did not have an answer as to what to change. He knew this would be an important issue to the Town, and this would need to be changed or appealed. The Town would need to make the decision. Staff agreed with him. This is what brought this case forward here today.

Jane Plummer commented that they are not an architectural review board. She understands where they are coming from and that this could become something else in the future. She came from a large family and feels this layout is acceptable.

Anita Cereceda questioned the process if this home became a bed and breakfast? Pam replied that legally it cannot be used as a bed and breakfast. It is zoned RS-1. If the owner started renting rooms they would be in violation. A rezoning process would have to take place in order for this home to be a legal bed an breakfast.

Chairman Roxie Smith asked for comment from the public on this matter.

Peter Webb from 5825 Estero came forward. He can understand the property owners desires. He has lived on the beach and seen illegal apartments in residential areas. He questioned if the document restricting the use would be legally binding on a buyer? If so can there be such an attachment to a deed to be recorded? Chairman Roxie Smith replied that they will not answer this question at this time, but she feels this will be addressed as part of the LPA discussion.

Howard Corbishley came forward and wished the family good luck. His objection would be the use of a bed and breakfast at a future date. He sees the potential. He would like to see the incorporation of restrictions to prevent a future use.

Harry Gottlieb from 50 Aberdeen came forward. He is not challenging the sincerity of the Drebes family. He has some concerns and feels the staff report should be payed close attention too. He agrees that the building is ideal for a bed and breakfast. He is concerned about the future use an how this may effect the Town. He feels a change in circumstances may take place and the Town may face some tough litigation.

Michael Bellski who owns 5870 Estero Blvd. came forward. He respects this board and the work they do. He welcomes this improvement. He feels if they discuss the potential of what something will be very little will get done on Fort Myers Beach. He indicated if this was sold in the future they would need to come back for a rezoning, and this process would happen again. He likes to see young families come down and as a neighbor he welcomes them.

Chris Bellski came forward and expressed that she feels the whole point of contention is the placement of the four bedrooms. This to her is absurd. Anyone can turn their home into a bed and breakfast regardless of where the bedrooms are placed. She can understand them wanting these rooms to face the gulf. She would be satisfied if some type of deed restriction was created to prevent this from becoming a bed and breakfast in the future. She feels if it is being used as a bed and breakfast in the future someone is not doing their job.

Mark Ebellini feels that they have proven this design is intended to be a single family home. There is no basis to conclude a use violating the RS-1 based upon a floor plan.

Hank Zuba asked Counsel the force of a deed restriction? Mark Ebellini commented that this is an RS-1 zone, so unless this ever changes the restriction will be that this home must be used in compliance with the RS-1 zoning. It already does comply. An affidavit would provided constructive notice in the public records.

Anita Cereceda asked Mr. Ebellini what further assurance might be added for the Town that would safeguard the future and this application from being used in any way commercially? She has concerns with possible weekly rentals in the future, which would bring commercial activity into a residential area. Mark Ebellini replied that you would be seeing a rooming house. There is the single family residential restriction in the zoning code. The affidavit will provide notice to subsequent owners. The effective regulation is in place.

Chairman Roxie Smith commented that she also comes from a large family. She does not find this home unusual. She has lived on this island long enough to know that someone else will come along and see this as a beautiful bed and breakfast. She feels that it is the responsibility of staff to notify of potential situations.

Chairman Roxie Smith questioned the enforcement? Town Manager Segal-George replied that code enforcement is complaint driven. They do not go up and down the island inspecting property. She explained if the owner will not cooperate they cannot trespass and must go to through the courts to obtain a warrant. She feels that the affidavit is a concept that can work in this particular situation. She also feels that staff needed to make the recommendation they did and this case needed to come before the LPA and Council.

Hank Zuba questioned that if it is the permanent intent of the Drebes’ to not get income based on this property? Mark Ebellini replied that “yes” he believes this is what has been testified to.

Harold Huber feels they should say that the Drebes’ will not receive income as long as the zoning remains the same.

Town Manager Segal-George replied that presently in the Town of Fort Myers Beach short term rentals are allowed. These people have the same right to have a short term rentals just as anyone else can. She feels that it would be inappropriate to get involved in this situation. This is not what is before the LPA.

Jessica Titus questioned if affidavits would be needed in the future if someone would like to build or remodel a home? Town Manager Segal-George replied if staff receives building plans that they believe are questionable, and they come before the LPA and Council in the format of an appeal a determination will need to be made.

Jane Plummer feels that the requirements for the uses are already established. It seems ridiculous to have them restate these requirements in a letter.

Harold Huber sympathizes with the family being a father of six. The only issue he sees with the plan would be that there is only one exit off of the second floor. He feels they need a spiral staircase. He is in favor of denying the staff’s recommendations and would be in favor of the Drebes’ building this home.

Hank Zuba is concerned about overturing the staff recommendation. He feels that they need better standards when they review these types of plans in the future. He is concerned by Counsel’s comment that this would be difficult to enforce. This scares him.

Jodi Hester is not clear on today’s determination. Town Manager Segal-George wanted to have Bobby Stewart present. He is the chief building official who reviewed and rejected the plans. Discussions were held between Bobby and the contractor. She was told this by Bobby, but was not privy to these conversations regarding modifications. She expressed that this will go before Council and she will have Bobby present to answer some of the questions that cannot be clarified today.

Jodi Hester questioned if they agree with staff that this home looks like a bed and breakfast will the home have to be redesigned? Town Manager Segal-George replied if it is the will of the LPA and Council to state that this does not look like a single family home a couple things could happen: 1. Mr. Ebellini could take this to court. 2. Some negotiation on a redesign could take place. Bobby Stewart would be involved with this process. She expressed that a public hearing has taken place and a second hearing will also take place. An opportunity for testimony and review will take place and will be in the public documents. Regardless of how this is decided they have followed their process and procedure. If the LPA and Council determine this is a single family home a record exists of the process with regards to the testimony. This information could be used in the future. She cannot specifically answer Jodi’s question, but she will make sure Bobby Stewart will be present to answer this question if brought up by Council.

Betty Simpson welcomes the improvements, but has concerns with the potential. She feels that the people before them today are being honest. Her concern is the future use. The enforcement issue becomes very important to her.

Town Manager Segal-George discussed the complex/duplex. This was a situation were plans were approved without any review by the Town. After the fact they were dealing with no recorded records and statements were not made as to how property would be used. The hearing before the LPA and Council completely takes this out of the complex/duplex example.

Betty Simpson went on to comment that she feels the affidavit would be extremely important.

Anita Cereceda commented that this is a process that needed to take place. A precedence is not being set today, because each case has its own particular items that bring the applicant forward. It is the job of this LPA to make the decision of intent. The only future protection this Town has are these records indicating the original intent of the Drebes’.

MOTION: Made by Anita Cereceda and seconded by Jodi Hester to uphold the staff’s finding that perhaps this code be the layout of a bed and breakfast, but not to prohibit in anyway and to encourage the building of the Drebes plan as presented in the LPA folder and case of March 12. The LPA acknowledges the Drebes intent and accepts the covenant offered by Mr. Ebellini and the Drebes family that this in fact is a single family residence and will improve this piece of property. Motion passes 8 to 1. Hank Zuba dissenting.

Discussion: Anita Cereceda commented that the staff was correct to indicate that this case has a flag, but she feels the intent is clear.

Town Manager Segal-George announced that this case will go to the Town Council on April 8, 2002 at 9:00 a.m..

IX. PUBLIC COMMENT

None.

X. MEMBER ITEMS AND REPORTS

Nancy Mulholland - Mentioned that the Sky Bridge is loaded with glass. Town Manager Segal-George and Dan Folke explained an accident took place. There is a contract to clean the bridge and she will pass this on.

Hank Zuba - Asked if in the future they could get a more detailed report from the building official, if they cannot be present. Pam Houck will pass these comments on.

Anita Cereceda - Asked for the progress of the Task Force. Jodi Hester replied that the first meeting took place on March 6. All members are approved. 9 members are voting. She and Bill Van Duzer are not voting members of the Task Force. The mission has been stated. Next meeting will be April 3, 2002 at 5:00 p.m. and the next after that is April 24, 2002 at 5:00 p.m.. On April 3 - Bill Spikowski and the Fire Chief will come forward to address some concerns. She explained that they will be defining the problems with short term rentals, address some possible solutions and they will look at different avenues and come up with the regulations.

Town Manager Segal-George commented that Jodi did a very good job. She will copy the minutes for the LPA.

Chairman Roxie Smith - Asked about Snug Harbor and Burandt? Town Manager Segal-George reviewed the various motions. A 4 to 1 vote was the result, which meant that Burandt has to sprinkle the whole house. The only one voting against this was Bill Thomas. Mr. Burandt is attempting to get a council member to do a motion to reconsider.

She went on to discuss the Tracy Gore case. She had reduced her request with regards to the rear setback and the council granted this.

Snug Harbor went on for a long time. The Council went through 12 requirements for the pedestrian access. If the dock was damaged they agreed to give a temporary easement over the uplands. Improved language has been acquired. He has now acquired the Powell piece of property and has additional parking. Extensive discussion was held on the look for the restaurant. The Council is pretty close to being pleased with the elevations and looks of the building. He agreed to work with Bill Spikowski with regards to an area on First Street for a Trolley stop. She feels that it is a pretty good plan.

Anita Cereceda commented that it would be helpful to know the outcome of the cases. She suggested that Town Manager Segal-George give an update at the LPA meetings. Town Manager Segal-George will comply.

Betty Simpson - Commented on the lights at Prescott. She feels that they have been working satisfactory. This is her personal opinion. Town Manager Segal-George replied that they have had comments both ways. The Traffic Committee and Public Safety have decided that this is wonderful. The Council directed staff to send a letter to the County to extend as long as they can. She understands this will be only until April 1. They are asking for an extension and for this to be permanent.

Town Manager Segal-George discussed that a traffic survey will be done. This information will have a tremendous value. They are trying to prove that the traffic congestion is not caused by the beach residents.

Jodi Hester - Commented on the traffic from a few weeks back. She mentioned that you almost have to be in the left lane if you want to get over the bridge.

XI. ADJOURN

The meeting was adjourned at 2:25 p.m..

Respectfully Submitted,

Shannon Miller

Transcribing Secretary