FORT MYERS BEACH

LOCAL PLANNING AGENCY MEETING

APRIL 8, 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, April 8, 2003, at 12:05 p.m..

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

            Excused absence from meeting:   Jessica Titus and Roxie Smith 

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

                       

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 MARCH 18, 2003 MINUTES

 

            MOTION:          Made by Jane Plummer and seconded by Harold Huber to approve the minutes of March 18, 2003 with corrections.

 

            Corrections and changes to the minutes:

1.  Harold Huber - Page 1 - Public hearings (5th and 6th line down) Comments made by Mrs. Wurster to indicated she “stated” she spoke with the Building Dept. and she “stated” the person she spoke with indicated a permit was not necessary as long as roof was placed over the deck.

            2.  Betty Simpson - Page 2 (3/4 way down page) comment by Jane Plummer - Insert “to between out and the.

            3.  Hank Zuba - Page 3 - Response by Pam Houck - Strike responded and replace with “commented regarding”.

            4.  Jodi Hester - Page 4 - Comment by Jodi following the motion.  Strike the word “with” and  replace with without.

 

IV.        PUBLIC HEARINGS

             

            1.  VAR2003-00004 Michael McGuigan in ref. to 247 Palermo Circle.  A request for a variance in the RC-Residential Conservation zoning district to allow an addition of a 5-foot front deck to a single-family residence with a 4.5- foot side setback on the south side rather than the required minimum 7.0-foot side setback for a waterfront lot per Table 34-3 “Dimensional Regulations in Conventional Zoning Districts” of the Town’s LDC.  The subject property is located at 247 Palermo Circle.

            Robert Kenner came forward and provided many pictures taken at the home.  He believes this is a non-conforming house built in 1962, which is sitting roughly 4.5 feet off the side setback.  The applicant is requesting to build a deck off the front of the house.  He showed a before and after picture from the remodeling.  This picture shows the need for the front deck.  The setback being requested is for only 31 inches on the front left side of the house.  The applicant would be willing to move the deck in the 2.7 feet on both sides of the house, but a garage on the first floor does not allow the movement of the piling on the right side.  To offset the deck, to the right side of the house, would leave a large bare spot to the left side and would throw off the symmetry and beauty of the front of the home.  He expressed that initially they were rejected for the front deck due to the front setback and not the side.  He indicated they did not find out about the side setback until recently.  He is unsure how the home was built non-conforming back in 1962.  The entire house is over 40 feet long with the back deck being over 10 feet long.  He does not see an additional 5 feet on the front making a great deal of difference.  No view will be blocked.  He referred to the findings and conclusions of staff and feels that the extraordinary conditions refer to the fact that this property is non-conforming and has been for over 40 years.  The deck is a reasonable improvement to the home.  This is a minimal request at 2.7 feet (31 inches total).  He expressed that there are a number of non-conforming houses located on Palermo and Primo.  It is easier to grant one variance than it is to change all zoning setbacks. 

            Harold Huber pointed out the deck size is confusing.  There are various numbers indicated and he asked for clarification?  Robert replied when the original variance was applied for the front setback was in question.  They went from a 6-foot to 5-foot to be as conforming as possible.  Now that the front setback is not in question, these drawings were submitted for a 6-foot front deck, but once it was discovered the applicant is non-conforming on the side it was brought back to 5-foot.  The applicant wants to be as conforming as possible and would be willing to drop to 4-foot, but the french doors would not have enough room to open. 

            Robert expressed that his partner and owner of the home Michael McCuigan have been on the beach for quite some time.  He has spent millions of dollars to beautify the beach.  He plans to spend additional dollars. 

            Jane Plummer questioned the neighbors?  Robert replied since the flyers were mailed out for the meeting many neighbors have called to express how beautiful the home looks.

            Tony Palermo, Senior Planner with Lee County, came forward.  Staff is recommending denial because this case does not meet the criteria setup for a variance.  Staff has not received any calls for or against this project.  The subject property was built in 1962 and prior to zoning.  The property is located in the mixed residential land use category.  The current zoning is residential conservation, which is a new zoning district.  The subject property is a single family residence going through remodeling.  A building permit has been received.  This home is non-conforming, but the applicant is seeking to increase the non-conformity be adding a deck to the front.  The property is of adequate dimensions to remodel by using the existing footprint.  There is adequate room to construct the front deck and meet both of the 10-foot minimum street setbacks and the 7-foot side setbacks.  The home is setback 22-feet from Palermo Circle and the proposed 5-foot deck would be setback 17.2 feet from Palermo Circle.  The circumstances are the result of actions taken by the applicant to remodel the home and place this deck on in front of the property.  He read from the staff report and quoted “increasing this non-conforming structure would be to the detriment of the neighboring property (to the south), which has a reasonable expectation that neighboring structures be setback a minimum of 7-feet from the property line.”  Staff agrees it would be more reasonable to consider this variance rather than to amend the ordinance.  This application was affected by the new zoning ordinance creating the new residential conservation district.  He will answer any questions of the LPA.

            Anita Cereceda commented that this case is effected by the zoning in a positive way.  Comments were made at last night’s Council meeting by Council member Van Duzer with regard to the setbacks.  Will this effect this case?  Dan Folke replied that this could effect him with regard to the front setback.  He commented that some discussion took place last night with regard to residential front setbacks.  Some Council members feel what is in the Land Development Code is not the intention.  He hopes this will be resolved within several weeks.  If this goes back to 25 feet, the applicant would need a variance for the front deck. 

            Robert replied a permit has been issued conforming with all setbacks.  A revision would need to take place.  He understood that a 30-day time period takes place between this meeting and the time a final decision is made.  He and his partner felt this was holding up their process and went in for a revision on the original permit, which took off the side of the deck and made it conform within the 7-foot setback, so construction could begin from the right side to the left. 

            Town Manager Segal-George added a permit has been obtained and if this is changed later he will be able to keep what he has.  She expressed if someone has a permit they will be able to keep it should a change by Council take place.  If others need to apply due to the change they will not be charged for the additional variance. 

            Hank Zuba asked for clarification if the construction began prior to the permit being requested?  When and why is there an issue with the front doors?  Tony Palermo replied he has a valid building permit to do reconstruction.  It was the applicant and builders choice to construct the additional new non-conformity.  The law was passed first and the structure was then designed and not quite in conformance. 

            Town Manager Segal-George added she understands the applicant/owner did not want a delay, so they went and received a permit based on existing setbacks.  If a variance is granted the applicant will go in and amend his permit to conform to the variance. 

            Harold Huber asked for the measurement he would have to stay back on the edge of the house.  Is it 30 inches?  Tony Palermo replied 2.5 feet. 

            Chair Betty Simpson called for public comment.  None was heard.  Public hearing was closed.

            Robert Kenner came forward and added to the discussion raised by Hank with regard to the permits.  When the applicant put in for the original building permits and included the front deck, once they realized this was non-conforming they wanted it removed from the building permits so it would not hold up the rest of the house.  In return, this is why they were allowed to put the french doors in prior to getting permission to build a deck. 

            Harold Huber feels the question to be determined is if the applicant should build the porch over to the edge of the house or should it be setback 30 inches?  He would be in favor of setting the porch back the 30 inches.

 

            MOTION:          Made by Anita Cereceda and seconded by Jane Plummer to approve the variance request. 

              

            Discussion:       Anita Cereceda commented she was just on Palermo Circle.  She appreciates the fact people are taking the time and energy to rehabilitate the existing homes.  This is maintaining the certain ambiance of the island she likes.  This is not new construction, but remodeling.  If it were new construction, she would probably feel differently.  This entire neighborhood is a conglomeration of non-conforming homes.  The improvement is an improvement to the neighborhood.  The deck will be an improvement to the house, neighborhood and fits in with the neighborhood. 

 

Jane Plummer agrees with Anita.  She drove the area and the home at 139 Palermo stuck out more than any other due to its huge patio, which is elevated and seems to be at different levels.  She would prefer to have the home look more balanced. 

 

Hank asked Anita and Jane for their response with regard to neighbor expectations?  How about the expectation the applicant had when going about the construction?  Even though the home is non-conforming the whole effort of incorporation in the code was to try to regulate setbacks.

 

Anita replied that it appeared the applicant received the permit and created a hardship for themselves to need the variance.  She does not agree this is the case.  She felt the applicant wanted to do the reconstruction and received a valid permit.  The intent was to ask for the ideal situation and if they do not receive it they still have remodeled the home.  She agrees with the conformity issue and the incorporation into the code.  She does not want to see homes purchased, torn down and replaced with very large homes. She likes seeing the homes rehabilitated and updated.  If they can maintain the non-conformity it will benefit the Town more.  She would like to see the Palermo Circle neighborhood maintain its current ambiance.

 

Nancy Mulholland cannot see by denying the variance and having the applicant conform to the setbacks that it would ruin the ambiance of the neighborhood. 

 

Harold Huber feels Anita has a valid argument with regard to this particular neighborhood.  He indicated they made the rules and are criticized by the public after the rules are made.  He is not set in his way and could vote along with Anita due to this request being on Palermo.

Jodi Hester does not feel there have been any valid legal arguments.  She does not feel there are exceptional or extraordinary conditions or circumstances.  All the findings and conclusions from staff are correct.  Until she hears something which indicated valid arguments against the staff findings, she will agree with staff on denial.  She does not feel the LPA has the right to make those rules, which have been approved by Council, and change them.  The rules were made for a reason.  If they wanted to make Palermo Circle a historic district it should have been handled in this manner rather than a variance by variance basis.  She does not see how they can approve this.

                       

Jane Plummer commented there is not always a legal reason to give every variance.  She looked to the Town Manager for additional input.

 

Town Manager Segal-George explained there is a tightening of criteria in the resolution.  This was a decision by both the Town Council and LPA.  However, it is all subjective. 

           

Jane Plummer feels her exception refers to the placement of the garage, which will make the building not look balanced.  The current owner was not responsible for this design. 

 

Town Manager Segal-George expressed that homes on the island may not qualify as historic, but recommendations can be made to preserve.  Certain regulations would need to be made to address these matters. 

 

Anita Cereceda will review the findings and conclusions and only #3 she cannot answer.  She stated the rules and regulations which were established in the Land Development Code and the Comprehensive Land Use Plan contains a rule for the variance application process.  Anyone has the right to come forward and ask for an exception to the rule.  She feels there are exceptional and extraordinary conditions inherent to the property based upon the nature of the Palermo Circle corridor.  There are properties that have already been granted variances greater than the one being requested.  It is a unique residential area in the community.  Based upon the nature of this street, she feels this is a circumstance to take into consideration.  Also, the desirability to maintain this character should be considered.  The applicant did not make this situation, but the variance creates this situation.  The granting of this variance will enhance the neighborhood by rehabilitating this property, and with construction complete it will enhance the overall neighborhood.  This will allow the home to conform with some of the homes in the area, which have been rehabilitated.  She personally would like to encourage someone on a project such as this.  The overall redevelopment of Palermo Circle may in fact be homes that are non-conforming, but they have improved the nature of this neighborhood. 

 

Hank Zuba feels the LPA must answer to themselves, whether or not the neighbors might have certain expectations based on the setback ordinance and whether there is a consistent way of being able to view an ordinance for variance.  He feels these are properties that one can treat respectfully within the existing ordinance and he feels this is what he would like to do.

 

            VOTE:              Motion fails 4 to 3.  Jodi Hester, Nancy Mulholland, Chair Betty Simpson and Hank Zuba dissenting.   

 

           

 

           

            MOTION:          Made by Jodi Hester and seconded by Nancy Mulholland to deny the requested variance with the findings and conclusions in the staff report dated March 25, 2003.          

 

            VOTE:              Motion passes 4 to 3.  Anita Cereceda, Harold Huber and Jane Plummer dissenting.

 

            Jodi Hester would like to see regulations in place for the future as discussed earlier, which may apply to the applicant in the future.

            Town Manager Segal-George explained the residential design standards will be coming back to the LPA from the Town Council.  She discussed with Bill and Dan the idea of broadening the scope of these standards.  She feels within this there may be a place to address these matters.  This case will go to the Town Council on May 19, 2003 at 3:00 p.m..

            Robert Kenner referred to page 4 and discussed the previous variances, which were requested in Fort Myers Beach and Palermo Circle.  The first variance is identical to their situation.  He was attempting to change the decision of the LPA.  It was pointed out the LPA has made their decision.          Town Manager Segal-George expressed his argument can be made to the Town Council.          

 

            2.  VAR2002-00048 Steve Tancos in ref. to a Lanai Enclosure.  A request for a variance from the RC-Residential Conservation zoning district dimensional requirements - LDC Table 34-3- for a non-conforming residential lot to reduce the rear setback from 20 feet to 15 feet and to reduce the waterbody setback from 25 feet to 20 feet.  The subject property is located at 330 Jefferson Court.

            Steven Tancos who lives at 330 Jefferson came forward.  He is looking to finish his screened area into an enclosed area, which includes slider doors off the back and two windows.  He referred to the photos and Exhibit “B.”  The distance from the water line to the rear of the home has not been changed since the original construction.  The request for the enclosure is under an existing roof.  The distance from the water to the home has not been changed with this improvement.  He is looking to get the code up to the current building restrictions.  The adjacent properties on both sides of the home both approach the water closer than his existing construction.  He has owned the home for just over two years, but the roof and existing porch have been present since the original construction in 1960.

            Harold Huber questioned if this is a room 10x26?  Steve Tancos replied this is correct. 

            Town Manager Segal-George commented that this appears to be an enclosed lanai and the applicant wants to totally enclose it to make it living space?  Jerry Murphy replied this was originally a screened lanai and the applicant wishes to enclose the lanai.  This would be an expansion of the non-conformity, but is not an extension of the non-conformity. 

            Jerry Murphy proceeded to walk the LPA through the photographs.  The applicant is seeking to enclose what he already has, which will basically come off of an existing enclosed wall.  This would be less non-conforming than his neighbors, but still non-conforming with the current code.  The only setbacks are the rear setback and the waterbody setback.  This building was built in 1960 before zoning standards. 

            Dan Folke questioned if the lanai has the two sliders and the window?  Jerry Murphy replied this is correct. 

            Jerry Murphy added that these are all platted lots in this subdivision.  The subdivision was platted prior to zoning.  These lots and the adjacent lots do not conform with the current zoning regulations.  It is currently RS under the new code.  Because they do not conform, the RC regulations come into play for setbacks.  The RC regulations for waterbody setbacks and rear line setbacks are the same as RS, so this does not relieve the applicants problem, so the variance is being sought. 

            Hank Zuba asked for further explanation with regard to the exceptional and extraordinary circumstances?  Jerry Murphy replied it is because the structure is existing.  They are not asking to extend, but only asking to enclose what was previously a screen room.  The fact that he needs to ask for a variance is an extraordinary circumstance brought on because the regulations have changed since the property was originally built and since the applicant made the request. 

            Hank Zuba questioned if any modifications have been made?  Steve Tancos replied he has made none. 

            Chair Betty Simpson asked for public comment.  None was heard.   Public comment was closed.

           

            MOTION:          Made by Jane Plummer and seconded by Anita Cereceda to approve the variance as requested with conditions 1 and 2 included.       

             

            Discussion:       Anita Cereceda questioned Hank if this case will fall into line furthering the non- conformity.  Will this be your position?  Hank replied he supports this case.

                                    Anita questioned the difference?

 

Hank Zuba indicated this is the existing space that makes the difference as opposed to adding on.

 

Anita Cereceda added that Tony Palermo and Jerry Murphy and did a great job with their reports.

 

            VOTE:              Motion passes unanimously.

 

            Town Manager Segal-George announced that this case will go to the Town Council on May 19, 2003 at 3:00 p.m..    

            Jane Plummer questioned what the dotted line on the water side of the porch is?  The response was a drainage easement. 

 

V.         LPA MEMBER ITEMS AND REPORTS

            Harold Huber - Questioned if it would be appropriate to move the discussion of the minutes to the end of the agenda when a large audience is present at the meetings.  It was agreed by the LPA members this change should take place.  Town Manager Segal-George indicated a motion would not be necessary and this procedure will be changed.

            Jodi Hester - Asked for an excused absence for the next meeting of April 15th. 

            Anita Cereceda - Thanked Jodi for asking in advance for an excused absence.  Commented that a Council member last evening asked for the deletion of a meeting due to his upcoming absence.  She was outraged by this comment and added that the meetings are for the convenience of the community and not for the convenience of those serving in those meetings.

            Chair Betty Simpson - Questioned the discussion earlier with regard to the historic area.  She commented this is a great little area and initially a gate was discussed by the community. 

            Town Manager Segal-George added the design regulations will be coming back.  The majority of the Council was not thrilled with the residential design regulations.  She felt that people had difficulty visualizing some of this and part was that it was not tied close enough to the vision of the Comprehensive Plan.  She also felt if more work was put into this the Council may look more favorably on this.  This will be brought back before the LPA.  She will talk with Bill to discuss neighborhoods or districts that do not approach historic status due to their age, but still have some neighborhood integrity that would lend itself to rehabilitation work vs. a total rebuild. 

            Anita added that Carlos Circle is another example. 

            Chair Betty Simpson commented on Chris Swenson.  She feels if the people will listen to the presentation with regard to the tolls they will see the original vision of toll booths stopping traffic has not been planned.  A much more favorable vision has been created. 

            Town Manager Segal-George added many people put out a lot of bad information.  Toll booths have never been discussed.  If this goes through, the Town of Fort Myers Beach will be the first test case for the entire country.  There is no money available for aging infrastructure and if this project works here it can work many other places.  Everyone is looking for a funding source.  If a revenue stream is not created the only other option are property taxes.  The Town only receives a small portion of the taxes and payment for these projects will cause a great increase in taxes.  Chris did an excellent job and she hopes people will listen.  Chris is willing to go and speak to groups separately.  The major battle will be the reaction of the community.

            Anita Cereceda feels a proactive position needs to be taken and positive information needs to be distributed to the community.  The only information out there is negative information.  She will try to make an effort to present more positive information when others are listening.

            Hank Zuba complimented Dan on his article with regard to Chapter 34.  He added the LPA could have a column to start discussing items from their prospective. 

            Town Manager Segal-George rarely hears positive comments.  Anita will try to help get the positive information within the community. 

            Chair Betty Simpson commented on the notice received from Lee County/Lee Island Coast with regard to the note discussing the congestion issue addressed by the Town of Fort Myers Beach.  She felt this comment was negative and Anita agreed. 

            Town Manager Segal-George is trying to work with TDC.  The intent is to make the TDC understand the concerns and provide additional help for the Town.             

           

VI.        PUBLIC COMMENT

            None.

 

VII.       ADJOURN

            The meeting was adjourned at 1:58 p.m.. 

 

Respectfully Submitted,

 

 

Shannon Miller

Transcribing Secretary