FORT MYERS BEACH

LOCAL PLANNING AGENCY MEETING

MARCH 11, 2003

Town Hall - Council Chambers

2523 Estero Boulevard

FORT MYERS BEACH, FLORIDA

I. CALL TO ORDER

The meeting of the LPA was opened by Chair Betty Simpson on Tuesday, March 11, 2003, at 12:05 p.m..

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

Excused absence from meeting: Anita Cereceda and Harold Huber.

Staff present at meeting: Town Manager Marsha Segal-George, Dan Folke, Jerry Murphy, Pam Houck and John Hagen.

II. INVOCATION AND PLEDGE OF ALLEGIANCE

The Invocation was given by Chair Betty Simpson. All present assembled for the Pledge of Allegiance.

III. APPROVAL OF FEBRUARY 11 AND FEBRUARY 18, 2003 MINUTES

MOTION: Made by Roxie Smith and seconded by Jane Plummer to approve the minutes of February 11, 2003 with corrections.

Corrections and changes to minutes:

1. Betty Simpson - Page 2 - comment by Jane Plummer - Strike sough and replace with sought.

VOTE: Motion passes unanimously.

MOTION: Made by Roxie Smith and seconded by Nancy Mulholland to approve the minutes of February 18, 2003 with corrections.

Corrections and changes to minutes:

1. Betty Simpson - Page 2 - Nick Pastermack - Strike She and replace with He.

2. Betty Simpson - Page 5 - Dan Folke comment under discussion. Add Blvd. following Estero. 3. Betty Simpson - Page 6 - 2^nd to last Paragraph (Dan Folke) Strike this and replace with is.

VOTE: Motion passes unanimously.

IV. PUBLIC HEARINGS

1. VAR2002-00054 FRED WINFIELD, FOR ELIZABETH CHOPP. A request for a variance from LDC Sec. 34-695 to reduce the side yard setback requirement from 7.5 feet to 4.4 feet to allow an existing slab to be enclosed - alternatively a variance is requested from Table 34-3 to reduce the side setback for a waterfront lot from 7 feet to 4.4 feet to allow an existing slab enclosed. The subject property is located at 3970 Estero Blvd.

Town Manager Segal-George explained the alterative is the difference between the old code and the new Chapter 34. The staff report also shows both, because it was completed in advance of Chapter 34 being approved.

Jane Plummer has had an ex parte conversation with the owner. Chair Betty Simpson also had communication with the owner.

Fred Winfield came forward on behalf of the owner. The deck the owner would like to enclose with screens was on the home when it was purchased 18 years ago. Some replacements to the deck have taken place. A wooden deck was placed on the rear of the home, which replaced the old existing wooden deck. Permits from the state and county were received. The owner would like to enclose the old existing deck. The owner would like to use this deck in the summer when the bugs are out. A variance is needed through the county and state. He has begun the process and will complete with the state, once county approval has been obtained.

Hank Zuba questioned if Fred Winfield is the contractor? Fred replied that he was.

Hank Zuba questioned why the 4.4 section is not being requested for screening? Fred Winfield replied that this would be a small area.

Jerry Murphy on behalf of community development staff came forward. He pointed out the survey plat “Exhibit A” and the deck in question to the LPA. A number of planned policies discuss preserving views to the gulf beaches along Estero Blvd.. The current existing deck encroaches, so the enclosure of the deck would not further the policy, but be contrary to the policy. When staff visited this site, it was not determined when the deck was built, but it appears to be of new construction. This was the visual opinion of zoning staff, which has been confirmed by code enforcement. Staff is awaiting to see if there is a code enforcement violation following these hearings. Staff recommends denial of this variance. The alternative possibility would be to have the applicant substantiate through an affidavit that the deck was in existence prior to the code becoming effective. This would then allow the deck to become a nonconformity. To enclose this deck would be an expansion of the nonconformity, but could be granted through a variance. Staff does not support a furtherance of this encroachment by enclosing and screening the deck.

Jane Plummer asked staff if the owner reduced their enclosure to the area up to the line as suggested by Hank Zuba? Jerry Murphy replied the suggestion by Mr. Zuba is legal. If the owner reduced the deck, they could still construct out to 7 ½ feet.

Jane Plummer expressed that when she spoke to the applicant it was stated the existing deck had been there, but was coated to give the appearance of a new deck. Jerry Murphy replied that this could be true. Staff will still need some sort of substantiation that this is the case by affidavit or photographs.

Jane Plummer suggested a possible continuance. Jerry Murphy replied that staff would not have any concerns with a continuance. Staff would like to know where the coastal construction control line falls on this property, if a continuance will be granted.

Roxie Smith feels a continuance is the proper way to proceed with this matter.

Chair Betty Simpson asked Fred Winfield if a continuance would be acceptable? Fred Winfield replied this would be acceptable.

MOTION: Made by Jane Plummer and seconded by Roxie Smith to continue the case of the variance request on the property located at 3970 Estero Blvd. until April 15, 2003. Staff and the applicant should work togther to clear up the issue of the coastal construction line and the date of construction for the existing deck.

VOTE: Motion passes unanimously.

2. VAR2003-00002 SANDRA S. SUTER. Two variances are requested in the RS-1 zoning district from Fort Myers Beach LDC Section 34-695; 1.) from the minimum side setback of 7.5 feet to allow a side setback of 5.5 feet to allow a portion of the staircase leading to the main living level to be built: and 2.) from the required 25 foot waterbody setback from Canal Grande to allow a waterbody setback of 7.5 feet to allow a single family residence to be built - or under the Proposed new LDC - Two variances in the RC (Residential Conservation) zoning district from Fort Myers Beach LDC Table 34-3; 1.) from the minimum side-waterfront lot setback of 7 feet to allow a side-waterfront lot setback of 5.5 feet to allow a portion of the staircase leading to the main living level to be built; and 2.) from the required 25 foot waterbody setback from Canal Grande to allow a waterbody setback of 7.5 feet to allow a single family residence to be built. The subject property is located at 301 Palermo Circle.

Sandy Suter came forward. She explained that this lot was platted back in 1925. This is a corner lot on the corner of the bay and the canal. The property was purchased in 1978 with additional properties and also the house adjacent. Due to the two setbacks being 25 feet off the bay and 25 feet off of the canal with a very narrow lot, this will allow for limited building. She would like to have the side yard setback from the other home she built, which would be a 5.6 side yard setback to accommodate an interior staircase. The remainder of the home would be setback 8 feet, which is more than what is required. She would also like a side yard setback from the canal of 7.5 feet for the deck and 15 feet for the home itself. Her neighbors have decks built to the seawall. These two setbacks will allow her to build a home of approximately 3,200 square feet.

John Hagen from Lee County Zoning came forward. Staff has recommended approval of the two variances. Staff feels with this lot being placed on the corner of the bay and canal, meeting the two water body setbacks would create too small of an area to build a liveable sized structure. The owner will maintain the 25 feet off of Estero Bay. With regard to the side setback, this is an older subdivision and there was a variance granted for a 5 ½ foot setback. When this subdivision was developed, the requirement was 5 feet for a side yard setback and would be consistent with all other homes in the area. This would only apply to the staircase leading to the main level. The site plan shows how her home will sit on the lot. He would be happy to answer any questions.

Jane Plummer is unsure of the square footage of this lot. There are no dimensions, except for what is out in the canal. She would like to know the land square footage? John replied when this case came forward staff wanted to be sure this is a buildable existing non conforming lot. Staff figured the land area to be over 4,000 square feet, which is the minimum requirement for a non conforming lot of record. The average width of the lot was greater than 40 feet. It was determined the owner did not need to go through the minimum use determination.

Pam Houck added that John has described the land area accurately. For the purposes of the Comp. Plan and minimum use determination, when you take into consideration the right of way it does comply with the Comp. Plan requirements.

Jane Plummer has concerns with the owner of Lot 1. John replied this lot is owned by Ms. Suter.

Jane Plummer questioned the view corridor? John replied for the home to be built on this lot it will obstruct the view of Lot 1. Many of the homes in this area have this type of situation.

Jane Plummer felt that you must ask for the minimum. It does not appear she would be lacking in deck, if she had the front deck. John replied this is true. He felt that she would be allowed to have the deck. Some of the other homes in the area have this wrap around deck. It is up to the LPA if they wish to approve the 15-foot setback variance.

Mr. Stevens came forward to represent the following: Ken and Judy Holler, 266 Primo Drive, Ed and Lorraine Fogarty, 271 Primo Drive, Gerry Trantina, 280 Primo Drive, Keith Beckett, 218 Primo Drive, Bob and Lynn Sylvester, 292 Primo Drive and Don Angelina, 260 Primo Drive. The purpose of his presentation is to express the views and concerns with regard to the above variance. Also, to be sure the proper setbacks are met in accordance with the established codes. To due otherwise would only establish precedence to allow future construction requests to put tighter and tighter variances upon the codes. Where and when does it stop? Many of the homes are built out to the canal. When was this done? Maybe not in their lifetime and do we want to continue to allow this! The purpose of a setback is to protect everyone’s rights. Laws, codes and setbacks are established in the interest of everyone. They are not opposed to the construction of a building on the proposed site, but ask that the construction be done within the zoning laws and codes of today, which have been established to provide fair and equitable rights to all. Approving the variances would be to the convenience of one person and not for the community. They do request that the variance be denied. He commented that Ms. Suter’s home does not go to the canal, but the deck goes to the canal. This would be definitely be an obstruction. Flo Lozone, 270 Primo Drive came forward. She is not present to ask the LPA to deny anyone the right to build on their property. She is only asking if the lot has room for a 500 square foot home, built the 500 square foot home. Do not build a 5000 square foot home on a 500 square foot lot and infringe on everyone’s property rights. If these variances are granted, be prepared to make these setbacks for everyone. A precedence will be set.

Diane Hamilton, 230 Primo Drive came forward. She bought her home in January 1991 knowing that no one could built on this lot, due to its small size. She is against this variance, because it will effect her view and she would not want her neighbor next door to do this either. When she built a large porch on the upper floor of her home it was made two foot shorter than allowed as too not effect her neighbors view. She also invested in all stainless steel for handrails, so her neighbors could see through it. She feels it is very important to think of others and their happiness when making plans for anything on your property.

Joe Zammet who is presently in contract with the home next door at 311 Palermo came forward. He will go to closing next week. He has a problem with this variance. He has spent his life savings on this home and is his dream. He does not want her home on top of his.

Sandy Suter came forward and feels the lot has been vacant for so long nobody now wants a home there. She passed out photographs of her home, which is within 5 ½ feet of the canal. Her deck is 7 feet wide and does extend over the canal. This was present when she purchased in 1978. She presented photographs to the LPA.

Some discussion took place between members of the LPA and Sandy Suter while the photographs were being reviewed.

Nancy Mulholland questioned the owner and asked how she would feel about not having a wrap around deck and only having a deck on the bay side? Sandy Suter replied she felt it would only be fair to have what her owners have. Her neighbors have decks, which do go right out to the water.

Jessica Titus is surprised by staff’s recommendation of approval. She is worried about the neighbors and feels a 3,200 square foot home is large. She is not convinced this is acceptable.

Jodi Hester questioned the finding and conclusions, which appear to be different from the report. Town Manager Segal-George replied these should be identical, but are most likely in a different order.

Jane Plummer is also surprised at the approval. She looked at the property before she read the recommendation from staff. She did not believe this would be a buildable lot. She does not feel this is a minimum request.

Roxie Smith feels a lesser request would indeed allow a house of this size to be built. If the LPA goes with a “no” decision, this will be saying no to what has been allowed in the past. She does not feel this is entirely fair. Jane’s suggestion of reducing the deck would be a start. Ms. Suter has been paying taxes on this property as a buildable lot for 25 years. She feels a solution should be established.

Jodi Hester commented if all homes were destroyed in a hurricane, everyone would have to build to current code or ask for a variance.

Hank Zuba added that the lot without setbacks can build a certain square footage. For the sake of the neighbors, it seems the Town is applying a new code and neighbors have the right to expect that variations will not be given, which will have a serious impact of their property. This is a question of the applicant trying to design and bigger and better place. He is unsure if he can support this.

Town Manager Segal-George feels it would be difficult at this time for the LPA to entertain a request. A request has been made, a hearing was held and the public has commented. The LPA should answer “yes” or “no.” The applicant could offer an alternative in the future.

Chair Betty Simpson agrees with Roxie Smith, but does understand what the new code is trying to accomplish.

Jane Plummer would like to see the applicant build a home. She feels there are other options that will not provide such an extreme variance.

Nancy Mulholland also feels more options exist. By denying both will give more flexibility to provide another alternative before this matter goes before the Town Council.

MOTION: Made by Jane Plummer and seconded by Hank Zuba to deny the request for the variance request at 301 Palermo Circle.

Discussion: Town Manager Segal-George announced that this matter will go before the Council on May 12, 2003.

Roxie Smith asked for confirmation the owner has owned this property for 25 years. Chair Betty Simpson confirmed this information.

Roxie Smith asked what could have been built on this lot in 1978? Pam Houck replied in 1978 a new Chapter 34 was adopted. She indicated in 1978 what would have been allowed to be built would be very similar to today. She feels the same recommendation would have come from staff. This is a very extraordinarily shaped lot.

Jane Plummer commented the waterbody setbacks are the same and would require a minimum variance request. She does not feel this is a minimum request.

Chair Betty Simpson will speak against the motion. This is a very small rectangular shaped lot.

VOTE: Motion passes 5 to 2. Chair Betty Simpson and Roxie Smith dissenting.

3. DCI2002-00044 DIAMONDHEAD ISLAND BEACH CLUB, L.C. c/o Beverly Grady on behalf of Roetzel and Andress, a legal professional association. A request for a Special Exception in the Downtown zoning district for shared permanent parking lot or in the alternative to Amend the Commercial Planned Development (CPD) for the Diamondhead Beach Resort to add Employee Parking as a permanent use. The subject property is located at 1999 Estero Blvd.

Beverly Grady came forward representing Diamondhead Island Beach Club. The request is to make the existing parking lot permanent. Originally this parcel was zoned Commercial Planned Development in 1993 for retail commercial office type uses. It was amended in 1999 by the Town Council to add the parking lot use as a phase one, which permitted leased parking or employee parking. This has always been used for only employee or overflow parking for Diamondhead. It was determined that downtown would be a more appropriate zoning district. On March 3, when the code was adopted this parcel was zoned downtown district. The parking offered at this site is not part of the required parking mandatory for Diamondhead, but it is recognized by Diamondhead that this additional parking is helpful for its employees and to be available for guest parking as needed. A request for a special exception for the parking lot shared permanent is being requested. This defines a parking lot which constitutes principal use of the property, which is available to the public for a fee, may be leased to individual persons or be assigned to a specific business. The parking is a use that exists and has the benefit of a Town issued development order. It is supportive of the Diamondhead Resort for use. The new code recognizes that shared parking permanent is a use that can be obtained by special exemption. This is the manner by which this request has been amended today. Pictures were distributed to the LPA to show the parking lot and Diamondhead, which were further explained by Beverly Grady.

Beverly Grady expressed that the parking lot is an existing lawful use and is built to the modern codes as of 2000. She referred to the selection highlighted in yellow. This buffer exceeds the minimum code. Their proposed conditions state the approval of the special exception for the parking lot subject to conditions: 1. compliance with the limited development order already granted. 2. Limits the use to the operation of the resort for employee and guest parking. 3. The lighting will continue to prevent direct glare or interference with automotive or pedestrian traffic. What would the LPA like to see to make this permanent? An optional condition to discuss was developed. Would the LPA like to see some type of landscape feature, which is compatible with the landscaping feature in front of the resort. She felt that staff would like to see the parking lot tie in architecturally with the resort. Diamondhead is willing to meet this request. Condition four is optional and subject to the decision of the LPA. The request is for approval of the LPA of the special exception for the shared parking lot with the conditions as offered.

Chair Betty Simpson questioned the backside of the wooden fence, is this dense enough so that lights would not show through on the single family homes? Beverly Grady replied there are a certain number of trees and shrubs. She is unaware of this being an issue. If the LPA would like to add a condition for an obligation to maintain the wooden fence, this would be acceptable.

Jerry Murphy on behalf of county staff came forward. He apologized with regard to the staff report due to the two codes. A request for a special exception in the new downtown zoning district is being requested. Staff’s major concern is that what is being requested is the permanent use of a parking lot. The previous Master Concept Plan and Planned Development allowed for five years of a parking lot and then the property would be developed into commercial uses according the Land Development Code. Staff has recommended that the special exception be granted, but limited to five years. The applicant would need to come back before this board to see if this is still an appropriate use of the property. If the parking lot is going to be a permanent use, staff feels it is the obligation of the applicant to provide some type of amenity to the Boulevard. Nothing has been presented to staff for review to know if it would be appropriate. Staff appreciates the conditions by Ms. Grady, but would like the LPA to stay with staff’s recommendation.

Jane Plummer asked if commercial alternative surfaces are allowed? She understands a time period existed when the surface must be made solid. Jerry Murphy replied he is unsure of the requirement under the new code. He added that this was approved originally with a provision the alternative surface be included.

Dan Folke added that there is now an alternative for low turn over lots. An employee parking lot would be considered low turn over. It is also allowed as an alternative for high turn over lots, if done in a specific way.

Jane Plummer has concerns with making this permanent. She questioned if this is addressed in the Comp. Plan? Dan Folke replied that he did not feel this was addressed in the Comp. Plan. This is why this requires a special exception. This is not a permitted use by right in the downtown zoning district. The LPA should determine if this is an appropriate location and should there be a condition that limits the time period it is allowed for.

Hank Zuba discussed the landscape alternatives and questioned if there has been any discussion with regard to adding trees? Jerry Murphy replied the landscaping present was required when approved. Staff does not feel it is appropriate to require additional landscaping, if it is stated the parking lot can only be allowed for five more years. If this is being looked at as a permanent use, it is very appropriate to look into landscaping.

Town Manager Segal-George added that there is an issue at the way the Town and County look at the Boulevard. Presently the County still owns the Boulevard. Trees are problematic on the Boulevard until the Town takes it over.

Beverly Grady expressed that the parking lot was found acceptable by the Town Council in 1999. A development order was issued in 2000. Hedge has taken well and the trees are growing. No impact on neighbors will take place. She questioned where the LPA would like the parking? They are requesting that he parking has been found an acceptable use, but would request it be permanent. They would like to see it stay with the life of the resort.

Jane Plummer would feel more comfortable with the five-year limit. She does feel the parking is needed.

Roxie Smith feels the thought this will not be necessary within five years is not realistic. She favors allowing the parking lot, but would like to see further beautification.

Nancy Mulholland agrees with both Roxie Smith and Jane Plummer. She favors the five years due to the future of Estero Blvd..

Jessica Titus does favor a permanent lot. She feels that much beautification will be needed. She does not have an issue with the surface and feels that it is great for drainage.

Jodi Hester is leaning toward the permanent lot with additional beautification. By granting permanent status now it will accomplish something everyone wants now.

Jane Plummer questioned if there is a standard for landscaping, such as the landscaping which was required across for the Edison Beach House? Dan Folke replied there is no standard. He reported the parking lot across for Edison Beach House was required to do a low-lying wall with vegetation in front of it. He is comfortable with staff working with the applicant to develop something everyone will be satisfied with.

MOTION: Made by Roxie Smith and seconded by Jodi Hester to approve the special request for a special exception for a permanent parking lot with the conditions as listed, eliminating number two. (Motion amended) Made by Roxie Smith and seconded by Jodi Hester to add additional language for the applicant to work with staff and develop a further beautification plan prior to the Town Council hearing. Work to be completed within six months of approval.

Discussion: Chair Betty Simpson reviewed the option condition provided by Beverly Grady was included in the above motion.

Town Manager Segal-George reported this matter will go to the Town Council on April 9, 2003.

Jerry Murphy wanted a recommendation to change condition number 7. This would be to strike the language in either phase I or Phase II, because this is no longer a planned development.

VOTE: (AMENDMENT) Motion passes unanimously.

VOTE: Motion passes unanimously.

V. LPA MEMBER ITEMS AND REPORTS

Roxie Smith - Commented on the brochure for the Historic Preservation Subcommittee. She feels they came out nicely. She added that Jessica Titus did much of the work with regard to this brochure.

Nancy Mulholland - Asked how heigh a fence can be on a street? Dan Folke replied the current rule states anything that is located between the setback and property line is limited to 42 inches. Dan will further check into this, if the address is provided.

VI. PUBLIC COMMENT

None.

VIII. ADJOURN

The meeting was adjourned at 1:55 p.m..

Respectfully Submitted,

Shannon Miller

Transcribing Secretary