FORT MYERS BEACH
LOCAL PLANNING AGENCY MEETING
MAY 14, 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, May 14, 2002, at 12:00 p.m..
Members present at the meeting: Harold Huber, Jodi Hester, Nancy Mulholland, Hank Zuba, Jessica Titus, Jane Plummer and Chairman Roxie Smith.
Excused absence from meeting: Anita Cereceda and Betty Simpson
Staff present at meeting: Town Manager Marsha Segal-George, Deputy Town Manager John Gucciardo, Dan Folke, Bill Spikowski, Pam Houck and Kirk Crane.
II. INVOCATION AND PLEDGE OF ALLEGIANCE
Invocation was made by Chairman Roxie Smith. All assembled and recited the Pledge of Allegiance.
III. APPROVAL OF MINUTES OF APRIL 9, 2002 AND APRIL 16, 2002
MOTION: Made by Jodi Hester and seconded by Nancy Mulholland to approve the minutes of April 9, 2002.
VOTE: Motion passes unanimously.
MOTION: Made by Harold Huber and seconded by Jodi Hester to approve the minutes of April 16, 2002.
VOTE: Motion passes unanimously.
IV. PUBLIC COMMENT ON AGENDA ITEMS
None.
V. VAR2002-00013 Evanoff Kubicek Residence. A request for 4 variances with regard to 2 lots located at 383 & 385 Seminole Way. On Lot 18, 2 variances are requested - the first to allow a 4.0 foot west side yard setback instead of a 7.5 foot minimum side yard setback as required by LDC Section 34-695 and the second variance to allow a 5.0 foot east side yard setback rather than the 7.5 foot minimum side yard setback as required by LDC Section 34-695. On Lot 17, 2 variances are requested - the first to allow a 5.0 foot west side yard setback rather than a 7.5 foot minimum side yard setback as required by LDC Section 34-695 and the second variance to allow a 5.0 foot east side yard setback rather than the 7.5 foot minimum side yard setback as required by LDC Section 34-695.
Beverly Grady came forward representing Diane Evanoff Kubicek. This is a request for variances on Lot 17 and Lot 18. These are located at 383 & 385 Seminole Way. Staff has recommended approval of both variances for Lot 18 - 1(a) & (b). The applicant wishes to withdraw 2(b) on the east side for the variance for Lot 17. The only variance for Lot 17 that will be focused on is 2(a). She explained that Diane Evanoff Kubicek purchased Lots 17, 18, and 19 in June of 2000. The lots are zoned RS-1 and each lot has minimum use determination by the Town. The problem developed at the time of survey which was issued. The survey reflected that Lot 18 was almost 54 feet in width. Ms. Kubicek chose a contractor and entered into a contract. The building permit application was filed and the building contractor obtained the materials. When they arrived at the site and put out the materials, the actual width was discovered. It was decided that a straightforward solution would be to realign the interior lot line, because three lots are owned by the applicant. Lot 19 is not part of the application due to its layout and size.
Beverly went on to point out some exhibits before the LPA. She showed the existing structure on Lot 18 and indicated that this has full recommendation and staff support. The exhibit shows the structure being proposed for Lot 19, which meets all setbacks. She highlighted the extent of the relief being granted for Lot 17. She illustrated the efforts which have been made by rearranging the lot lines. She noted that the Town’s regulations for Chapter 34 are pretty much the same as the Lee County regulations. Approximately 6 months from the time the Town’s regulations were frozen Lee County did amend their regulations for the lots of record. They did recognize the lots that were not 7,500 and reduced the side setback.
In closing, Beverly commented that the applicant believes by driving by and looking from the air you would not be able to notice a difference. A reduction for the sides of the home has taken place and this will assure that the setback is met. She would be happy to answer any questions and requests the LPA follow the staff report for Lot 18, but also recommend to Council the relief for the 5 feet on the west side of Lot 17.
Nancy questioned what is being done on the east side of Lot 17 to the proposed house? Beverly Grady replied that since the request has been withdrawn it will have to be setback 7.5 feet and a reduction of the home will have to take place.
Nancy commented if it would be possible to change the position of the house to accommodate the setback on the west side? Beverly Grady replied if you move the floor plan 7.5 feet from the west side you would then be closer on the east side and need more of a variance.
Jane Plummer questioned the liability of the surveyor. Beverly Grady replied that this is something being looked at and acted upon. There is no remedy to really fix this situation. This is a separate civil matter and will not address this situation.
Jodi Hester asked if Beverly had any comments regarding staff’s recommendation that this does not meet the required approval or findings for the approval of a variance? Beverly Grady replied after this determination was made they looked at the plans and removed the invisible lot lines. The house that is being proposed for Lot 17 is reasonable. It is under common ownership and anyone who buys there will recognize this. She expressed that the owner had hoped the Local Planning Agency would find that they met all of the criteria. This is a reasonable single-family home to be placed on a lot of this size. One of the variances has been eliminated. The applicant feels that this is a unique and special circumstance with the removal of the variance on the opposite side.
Hank Zuba asked if the surveyor is covered by Errors and Omissions? Beverly Grady replied that she does not know the answer to this question.
Hank Zuba asked if the County is still licensed surveyors? A reply of a state surveyor was heard.
Hank Zuba asked if there is a process this license can be questioned that the LPA can raise, since the LPA is being asked for relief in relation to an error by a surveyor? Kirk Crane (Lee Zoning Division) replied that he is sure an Ethics Review Board exists. He is not aware of it and replied that it would be a state license the surveyor has. He is sure that complaints would be investigated.
Hank Zuba feels if the variation is approved by the LPA the City Council should indicate in a letter to the state that the surveyor should not be allowed to do business in their Town.
Chairman Roxie Smith agrees with Hank and would like to keep this issue separate and hold discussion at the end.
Nancy Mulholland questioned that when the error was discovered on Lot 18, but the building proceeded why was this not all brought up before the building proceeded? Beverly Grady replied that because this solution of redoing the lot lines came forward. She explained that this is a very common application at the County.
Kirk Crane, Planner in the Zoning Division of Lee County, came forward. He referred to a couple items in the report. He explained that these are lots of record and are substandard in both lot width and area. He explained that the explanation is very straightforward and is in Attachment F. The applicant does own both lots on both sides and this home did proceed and was constructed. The intent was to adjust the lots lines when this error was discovered. He disagrees with Ms. Grady when the problem was identified and the solutions were being discussed. Questions came up and it was not understood that these were substandard lots and a minimum use determination had not been done. The lots are not in conformance with the low density residential future land use designation. He indicated that there is some basis for the required finding on Lot 18 for the approval of a variance. This would allow the requested setbacks. He expressed that the lot is very small. He indicated that it would be very difficult to adjust the home, at this point, to meet the setbacks on both sides. He expressed that this seems to be the most reasonable option to relive the applicant of any unreasonable burden that would be caused by the imposition of the Land Development Code requirements.
Kirk went on to discuss Lot 17, which is a vacant lot. This is a larger lot. It is wider at the street and is platted as a 50-foot wide lot along the street. The applicants are proposing a single family residence. He indicated that same home on Lot 18 could most likely be placed on Lot 17. Staff indicated that they feel this is a reasonable use of the property and would allow construction of a single family residence. He added that because this is a vacant lot and is not an existing condition caused by an error the staff does not feel that the one remaining request on the west side of Lot 17 meets the required finding for approval of a variance on Lot 17. Staff is recommending denial of request 2(a). He would be glad to answer any questions.
Harold Huber commented that he drove to these lots. He turned around on Lot 17 and feels that a very nice home could be built on this lot, and would meet the required setbacks. He expressed that this is a very large lot. Lot 18 has a 10-foot lanai with a screened in area that is not shown. Does this require a certain setback from the seawall? Kirk replied that a screened enclosure, a non-roofed structure, requires a 10-foot setback from the seawall.
Kirk added that normally when you drive down the street on an RS-1 lot there is a minimum of 15 feet between structures side to side on different properties. He referred to attachment G. Ms. Grady indicated by letter if the variances are granted on Lot 18 the west side variance on Lot 18 would still maintain a 15-foot setback to Lot 19 or to any structure placed on Lot 19. This was added as a recommended condition of approval. Staff recommends approval of variance 1(a) and 1(b) on Lot 18, subject to four conditions.
Beverly Grady came back to explain actually what the property owner was looking at. She referred to a sheet handed to the LPA that was considered when the applicant felt they could redo the lot lines. She explained that the building separation is greater and would have met the setbacks had the lot lines been done. When the lot lines could not be done, she noted if you did not change the orientation of the home, but kept them as proposed it put them closer to the existing lot lines. One question was to ask for relief that would keep the buildings separated more. This was the preferred choice due to the Kubicek’s plan to live on Lot 17. A concern existed to ask for an 18-inch variance. The house was then turned and this brought the front closer and the rear was much further apart. This far exceeds the 15 feet as far as the rear portion. This was an option and if this receives any support by the LPA the applicant would take this into account and separate Lot 17 and go further with it. She expressed that it was reoriented to try and ask for the minimum variance on just one side. They will need to reduce the size of the lanai and house to be sure it will meet the 7.5 setback on the east side. She and the applicant request the recommendation of approval for Lot 18 and for the one variance on the west side for Lot 17.
MOTION: Made by Jodi Hester and seconded by Hank Zuba to recommend that the Town Council deny the one variance requested for Lot 17 and approve the requested variances on Lot 18, subject to the conditions in the staff report dated May 7, 2002.
Discussion: Jodi Hester commented that one of the main reasons she went along with the staff recommendation is because she does not believe there are exceptional or extraordinary conditions or circumstances to allow the variance. She feels the conditions or circumstances were the result of the actions of the applicant.
Harold Huber visited the site and feels that Lot 17 is large enough to position a wonderful home on this lot. He feels the applicant will be able to abide by the conditions as required. He is in favor of the motion.
Jane Plummer does not feel that it is the action of the applicant. She feels it is the actions of someone else who caused a domino effect and caused a hardship and exceptional circumstances. She feels they will cause the applicant greater hardship by requiring them to redo everything again.
Chairman Roxie Smith expressed that some confusion existed between the LPA and its members regarding the lot errors. Beverly Grady came forward and explained that the error was on Lot 18. The solution was thought to be the realigning of lot lines. If the lot lines were realigned, you could place the three structures on the three reconfigured lots without any variances. The error of the actual dimension of the platted lot was Lot 18 only.
Jane Plummer asked when the survey was done for Lot 17 did the home designed for the first survey fit within the boundaries or did it need variances?
Beverly Grady replied that it did fit.
Jane went on to explain that with the first survey 3 houses were designed to go on the properties. When the house was started on Lot 18 it was determined an error had been made. Changes need to now be made.
Jodi Hester referred to one of the conditions in the staff report and she explained that the granting of the variance is not the minimum variance that will relieve the applicant of an unreasonable burden caused by the application. She expressed that the setback rules are there for a reason and she does not feel that the LPA should vary from staff’s recommendation.
Hank Zuba feels the issue of relief is between the surveyor. The LPA is providing relief with regard to the major problem by providing relief on the house. Any redesign costs should be passed along to the person who made the mistake.
VOTE: Motion passes 6 to 1. Jane Plummer dissenting.
Town Manager Segal-George questioned if the LPA wanted to include the provision in the resolution with regard to the licensing board and surveyor? Chairman Roxie Smith felt these should be handled separately.
MOTION: Made by Hank Zuba and seconded by Chairman Roxie Smith to ask the Board to follow whatever process to ensure that this surveyor does not do business in their Town.
Discussion: Jane Plummer would like to see just the surveyor eliminated and not the entire company.
Hank Zuba does not agree. It is this surveyor’s license and bond along with the Errors and Omissions. No oversight and review took place and someone stamped it. A serious mistake took place.
VOTE: Motion passes unanimously.
Town Manager Segal-George indicated that this case will go before the Town Council on June 24, 2002 at 3:00 p.m..
VI. VAR2001-00032 William H. Van Duzer in ref. to Cudzik Carport & Open Deck. A request for 5 variances in RM-2 for an existing carport with open deck on top, addition to an existing single-family residence. The variance requests are as follows; a) from 20 foot street setback to allow a 4.2 foot street setback per LDC Sections 34-715 and 34-2192(a); b) from 20 foot minimum rear yard setback to allow a 6 foot rear yard setback per LDC Section 34-715; c) from 40% maximum lot coverage to allow 42% lot coverage per LDC Section 34-715; d) from a 7,500 square foot minimum lot size to allow a 5,583 square foot existing lot per LDC Section 34-715; e) from 100 foot minimum lot depth to allow a 50 foot lot depth per LDC Section 34-715. The property is located at 582 Estero Blvd.
Bill Van Duzer came forward to explain the story of this case, which has been going on for quite some time. In 1999, Mrs. Ruth Cudzik contracted to have an addition put on her home. She felt that she contracted with a licensed contractor and she understood that they had pulled permits to complete this job. Sometime later after the first part of the year 2000 it was noted by DEP that this project did not have a state permit. Once Mrs. Cudzik found out this information after further checking she discovered he did not have a contractors license also. In early 2000, a friend of Mrs. Cudzik contacted Bill Van Duzer and he agreed to help anyway he could.
Bill went on to add the he contacted an engineering firm to test the existing structure and see if this could be permitted as built. He in unaware of the financial loss to Mrs. Cudzik. The engineer did sound testing, determined the slab was OK, but the columns which held them up had no steel and this makes it not a proper structure. He contacted a surveyor to obtain a complete survey. Next an architectural firm was contacted to do the plans for the new structure. Permits were applied for and denied from zoning because they needed a 7-foot side setback. He indicated that Mr. Crane has been very supportive. Many variances now exist and are needed. He spent about 30 man hours in the courthouse trying to determine when this lot was created. After much research the determination of the age of the property had changed. Mrs. Cudzik is willing to take care of this problem, but the issues of whether the structure will fit on the site and be a legal structure must be determined. He felt very sorry for this individual and this reflects on his industry. This is his reason for addressing the problem and wants to try and solve it. He does have a contract with Mrs. Cudzik and should a variance be granted and permits are granted he will try to save part of the structure and take the rest down and put it back up in accordance with the requirements of the code. He indicated that the staff report is suggesting the approval of the variances and he asks the LPA to consider them very carefully for approval so they can get this project going.
Harold Huber is familiar with this building. He asked if he is going to salvage the slab? Bill Van Duzer replied that the floor slab will be salvaged. The roof slab, which is poured, will not be salvaged. He expressed that this roof slab does meet code, but the columns underneath it do not meet the code. It must come down.
Jane Plummer asked if he will rebuild what is presently there? Bill Van Duzer replied exactly what is there.
Hank Zuba commented that the variances are recommended to be approved and are fairly minor. He disagrees with his position in relation to being the applicant. He feels that he could have shared the experience here without being the applicant. He expressed that he is uncomfortable.
Bill Van Duzer replied if Hank is uncomfortable he should abstain from the vote. He apologized to everyone and will not come before the LPA in the future.
Jane Plummer commented on the remarks made by Hank. She expressed that the LPA asks for the applicant or their representative to speak. She does not have a problem with Bill Van Duzer having the most knowledge presenting the case and being the applicants representative. She would prefer to have the knowledge. She does not feel that there is a conflict.
Harold Huber indicated that this street is a private drive and he feels comfortable with the situation of this being close to the driveway.
Kirk Crane came forward and expressed that this case has quite a history to it. He met Mr. Van Duzer at the time this was filed and it has taken 1 year plus to get it to a hearing. The applicant attempted to build a carport/deck cover, obtained an unlicenced contractor and no permit was issued for it. When a permit was requested in December of 2000 it was denied because it did not meet the setback requirements. A code enforcement officer also issued a violation notice on it. Mr. Van Duzer got involved to try and rectify the problem by making the structure meet the code requirements. He explained that this lot is zoned RM-2 and is located in the mixed residential future land use category. Research was completed to try and determine when this lot was created. This lot was split off in approximately 1965. He indicated that this did not go through a lot split review. He is unsure why and because of this it has created numerous problems. The applicant would like to put this carport and deck back onto the residence. Staff does find that this does meet the required findings for approval of a variance. This would relieve the applicant of an unreasonable burden. The approval of this variance will not set a precedence, but recognizes a fact. This is a condition that is very prevalent in this area. Approval is being recommended subject to the two conditions.
Harold Huber questioned condition 2 and commented if this house was ever removed there is no way a structure could be built there to meet the Land Development Code? Kirk Crane replied that a single family residence could be built, because they do have a minimum use determination, which allows them to build a single family residence. They would need to meet the setbacks, which would be very difficult.
Pam Houck added that the intent is if a structure is built it is certain some variance will be needed, but the Town will have to review this variance and not limit a new structure to this specific site plan. A more desirable structure may be built on the property.
Jodi Hester clarified that Hank Zuba would be abstaining from the vote. Hank indicated that he would be. Town Manager Segal-George commented that she did try to contact Attorney Dick Roosa, but she has not heard back for him at this time. From her prospective the ultimate ruling should come from Attorney Dick Roosa. In the State of Florida conflict is narrowly defined. It states you have conflict of interest if you receive some type of monetary benefit. The State of Florida also says if you do not have a conflict you must vote.
Jodi Hester would like to continue the case. She would also like the opinion of Attorney Roosa. Town Manager Segal-George expressed that they can always continue the case. Her legal opinion is that no conflict exists. She would rather have the Town Attorney rule on this matter.
Discussion was held regarding condition 2. Harold Huber feels the wording should be changed or removed all together. Town Manager Segal-George replied that this is not clear. Pam Houck added that compliance would also mean through the variance process. It was agreed by staff that the wording would be adjusted to make this item more clear.
MOTION: Made by Harold Huber and seconded by Jane Plummer that the LPA recommends approval to the Town Council the requested variance subject to conditions 1 & 2 as stated on the staff report.
VOTE: Motion passes 6 to 1. Hank Zuba dissenting.
Town Manager Segal-George indicated that this case will go before the Council on June 24, 2002 at 3:00 p.m..
VII. VAR2002-00010 Richard Fence Variance. A variance request from LDC Section 34-1744 to reduce the required street setback for a fence or wall from 5 feet to 0 feet and increase the maximum height for a fence or wall from 3 feet to 10 feet. The property is located at 170 & 202 Crescent Street.
Beverly Grady came forward to represent John Richard. She indicated that she would be brief because they are in complete agreement with the staff report. The staff report indicates that the applicant has met the criteria for the variance. This is a request for the ability to place a fence along Crescent Street. The purpose of the fence request is to recognize that there is residential on Crescent Street. Some of the land was taken for redevelopment of Crescent Street. A survey is included to show that some of the structures are as close as 3 feet to the property line. The property owner is requesting the variance, so that it will be placed right on the property line, and to be able to go 10 feet high. This will provide the opportunity for real privacy and separation from the commercial uses. She expressed that the actual design is required to receive approval by the Town Manager. She showed the LPA the options. John Richard is more interested in the selection of Option A. The owner would like to work with the Town. He has been supportive of the redevelopment of Times Square, San Carlos and the Crescent Street area. The codes do not provide protection for residential in this situation. This is a unique situation and staff has recommended approval.
Chairman Roxie Smith questioned the short portion with the wall and wooden fence. How high is this? John Richard replied that this is about 10 feet.
Pam Houck, Zoning Director for Lee County, came forward. She expressed that this fence is to be located along the front property line adjacent to Crescent Street. The variance requested is from the required 5 foot setback from the right-of-way to zero, and from the required maximum height of 3 feet to allow a 10-foot fence. The fence is to provide security and buffer to his existing residential development. Staff believes that there are extraordinary conditions in the areas that are inherent. This does create a hardship for the applicant. Staff is recommending approval with five conditions.
Hank Zuba asked Pam Houck if she sees this type of a condition occurring on many places on the island? Pam Houck replied that she sees this more with multi-family development. She does not see it happen frequently. She is not seeing a trend. At some point in time the Town may want to visit this as part of their regulations for the Land Development Code.
Dan Folke added that this is a unique site. A lot of residential is in an area that is targeted as the pedestrian commercial area. He does not feel that this will carry over to the other residential streets.
Harold Huber feels that it would be proper in a high traffic zone, but not in a residential area. He feels that this is a high traffic zone.
MOTION: Made by Jane Plummer and seconded by Harold Huber to have the LPA go along with the staff’s recommendation for approval with the five conditions.
VOTE: Motion passes unanimously.
Town Manager Segal-George announced that this will be heard by the Council on June 24, 2002 at 3:00 p.m..
VIII. LPA MEMBER ITEMS
Jessica Titus - Requested an excused absence for next week. She will be on vacation.
Jodi Hester - Commented that she will be gone on May 28th. Discussion was held regarding quorum for the meetings through June 2002. Jodi went on to discuss the Short Term Rentals. She expressed that there has been another group working on some issues regarding Chapter 34. She did not know that they existed and met them in May. She is not a member of Neighbors for Neighborhoods and does not endorse any information they come up with. She is not presenting or endorsing the letter she brought forward to the LPA from this organization. They came to her because she is the Chairman of Short Term Rentals. She explained that this group would like 20 minutes to give their presentation of May 21st.
Town Manager Segal-George commented that a 20 minute presentation is not classified as Public Comment. The LPA must determine that they would like to allow this on their agenda.
The timing of this matter was discussed. Also, discussion was held whether this matter should go before the Task Force before coming to the LPA.
Town Manager Segal-George reviewed that two different issues exist. One is that the direction of the Task Force was to come up with some kind of code of conduct, registry or a mechanism to deal with short term rentals on the island. Another issue is whether or not there are certain parts of the island that should have some prohibition with regard to short term rentals or not. In a logical flow these are two separate issues. The Task Force is wanting to finish up by the end of June and have a recommendation with regard to the task given by the LPA back to the LPA at their August 27th meeting. She understands that the intent of the Neighbors for Neighborhoods is not on the focus of a registry or code of conduct, but to focus on where the short term rentals are and to try to make some policy from the LPA and Council with regard to whether short term rentals should be restricted to certain areas. Many of the members of this group may be going away for the summer and may want to express their position.
Jane Plummer questioned the intent of the Task Force. Town Manager Segal-George replied that she believes the LPA agreed to use the Task Force to help determine if this situation could be remedied.
Jodi believes that everyone has the right to come for public comment. She feels that this is where this topic belongs. She does not believe this topic belongs at the Short Term Rentals Task Force.
Discussion was held regarding the time limitations for the LPA meeting of May 21st. Town Manager Segal-George feels that this issue needs to be placed on the agenda. It was decided this item will be heard at the meeting of May 21st. This meeting will begin at 12:00 p.m..
Nancy Mulholland - Mentioned that issues were brought to her attention. She questioned trailers parked in yards and what are the ordinances? Town Manager Segal-George replied that there are none as long as they are not living in it.
She brought up a question regarding parking at the Lighthouse Motel? Town Manager Segal-George is unaware of this. Dan Folke added that they can look up the resolution. He does not believe that there were any parking spaces included.
IX. PUBLIC COMMENT
Maria Eigerman spoke on the issue of Neighbors for Neighborhoods. She added to clarify that the Task Force is working with the two issues given by the LPA. The main issue is for code of conduct and may come to apply to all rental properties on the island, and not specifically to short term rentals. Also, the idea of a registry. The Task Force is not dealing with the issue of proliferation of rental properties in areas that are zoned single family residential. At the last meeting of the Short Term Rentals she made a motion for the consideration of the Task Force to ask Chairman Jodi Hester to come back and expand the mission of Task Force, so that it could deal with this issue of proliferation. This motion was defeated. Members of the Neighbors are not available after this short window of mid-May. Some have elected to extend their stays on the island specifically to appear before the LPA and provide this information. The Task Force is not possible as a venue. The Task Force has explicitly rejected a proposal to broaden its mission to look at commercial intrusion into residential areas.
X. ADJOURN
The meeting was adjourned at 2:38 p.m..
Respectfully Submitted,
Shannon Miller
Transcribing Secretary