FORT MYERS BEACH

LOCAL PLANNING AGENCY MEETING

MAY 18, 2004

Town Hall-Council Chambers

2523 Estero Boulevard

FORT MYERS BEACH, FLORIDA

I. CALL TO ORDER: The regular meeting of the Fort Myers Beach Local Planning Agency was called to order on Tuesday, May 18, 2004 at 12:00 Noon by Chair Betty Simpson.

Members present at the meeting: Anita Cereceda, Jodi Hester, Harold Huber, Bill McCarthy, Jane Plummer, Robert Simon, Betty Simpson.

Excused absence from the meeting: Jessica Titus, Hank Zuba.

Staff present at the meeting: Town Manager/LPA Attorney Marsha Segal-George, Community Development Director Dan Folke Wes Morrison of Lee County, Pam Houck of Lee County Developmental Services, Nettie Richardson, Senior Planner with Lee County Zoning, Planning Consultant Bill Spikowski

II. INVOCATION AND PLEDGE OF ALLEGIANCE: The invocation was given by Ms. Simpson. All those present assembled and recited the Pledge of Allegiance.

Chair Betty Simpson introduced the members of the LPA, beginning with Bill McCarthy of 400 Lenell Road; Harold Huber, Jodi Hester, Anita Cereceda, Jane Plummer, Bob Simon of Sunview Blvd. She congratulated Mr. McCarthy and Mr. Simon on their appointments to the LPA, as well as Ms. Plummer on her continuing appointment. She also thanked Roxie Smith and Nancy Mulholland for their years of service. It was verified with Ms. Segal-George that it would be appropriate to reorganize at this time.

MOTION: Ms. Plummer moved that the LPA elect a Chair and a Vice Chair, with the Chair to hold office for no longer than two years, rather than having co-Chairs. Motion was seconded by Ms. Simpson.

DISCUSSION: It was asked whether this motion was necessary and whether this was not already a rule. Ms. Segal-George pointed out that the LPA can change its rules whenever it sees fit. Mr. McCarthy questioned the advantage of the 2 year term. Ms. Plummer explained that this was the previous LPA rule. Ms. Segal-George added that it might be possible that the Chair would be up for reappointment next year and if not reappointed, would actually only serve one year. Early procedural rules came under discussion, and Ms. Segal-George agreed to locate them and provide them to the members. Ms. Plummer clarified that her intent was to provide for a 1-year term, not to exceed 2 years in a row. She restated the motion that there be a Chair and a Vice Chair, with the Chair to serve one year not to exceed two years in a row. Ms. Simpson seconded the restated motion. It was agreed that this would require reorganization each year.

VOTE: Motion was approved by unanimous vote.

MOTION: Motion was made by Ms. Plummer to nominate Anita Cereceda for Chair and Jodi Hester for Vice Chair, acknowledging Ms. Simpson’s long years of service in these capacities. She stressed the need for knowledgeable and experienced individuals in view of the issues coming before the LPA. Motion was seconded by Ms. Simpson.

DISCUSSION: Ms. Cereceda asked whether Ms. Hester wished to reverse the nominations. Ms. Segal-George pointed out that nominations do not require a second, and that it would be appropriate to ask if there were any other nominations.

VOTE: Motion was carried by unanimous vote.

III. APPROVAL OF MINUTES, APRIL 13, 2004 & APRIL 20, 2004:

MOTION: Motion was made by Ms. Simpson to approve the April 13, 2004 minutes with one correction; seconded by Ms. Plummer.

DISCUSSION: On Page 6, references to Tiki West should be Batiki West. Ms. Cereceda noted that there was no transcribed reference to ex parte communications, pointing out the importance of these being included in the minutes and expressing the opinion that both Ms. Smith and Ms. Simpson had always exercised care in asking for disclosure of ex parte communications.

Ms. Segal-George pointed out that ex parte communications need only be disclosed when hearing a case; in Public Hearings on legislative matters, members may speak with anyone they wish without obligation to disclose any contacts. When hearing a case, the LPA is sitting in a quasi-judicial capacity, and at that point it is important that the Chair ask if there have been any ex parte communications, and members are under obligation to disclose if there have been any. She further explained that there are conflict of interest forms to be filed in the event such would be the case. It was also pointed out that conflict of interest must be financial. Ms. Cereceda suggested that Mr. McCarthy and Mr. Simon familiarize themselves with these requirements.

VOTE: Motion carried by unanimous vote.

MOTION: Motion was made by Ms. Simpson and seconded by Ms. Plummer to approve the minutes of April 20, 2004 with corrections.

DISCUSSION: On the middle of Page 3 where reference is made to 13 properties, it should read that there are 5 on the inner circle and 8 on the outer circle. On the last page under Member Items and Reports a request had been made by Ms. Cereceda to send a letter to the newly elected Mayor and the new Council members, and Ms. Simpson asked whether this had been done. Ms. Segal-George and Mr. Folke advised that no such letter had been sent; at the request of the LPA this will be done. Ms. Cereceda said that she recalled ex parte communications in that particular case hearing but found none in the official transcript.

VOTE: Motion to approve the minutes as corrected passed by unanimous vote.

IV. PUBLIC HEARINGS:

1. VAR2003-00077, DENNIS LOOMIS GARAGE VARIANCE. A request for a variance from Table 3403 of the FMB LDC that requires a 7.5 foot setback for a side property line non-waterfront. The variance is for a 10-inch reduction in the side yard setback. The subject property is located at 185 Jefferson St.

Ms. Cereceda read the case and noted that the owner is Denise Loomis, not Dennis. For the record she remarked to the new members that they were put in a difficult situation and asked whether they felt prepared and comfortable to hear these cases and act on them. Both Mr. McCarthy and Mr. Simon advised that they felt sufficiently prepared to participate.

EX PARTE COMMUNICATIONS: Ms. Plummer advised that she has had ex parte communications with Denise and Danny Loomis and has visited the property. Mr. McCarthy advised that he had visited the property but did not mention whether he had spoken with anyone. Ms. Cereceda then asked whether there had been any other ex parte communications; Ms. Simpson advised that she had spoken to Denise.

Ms. Cereceda also asked whether everyone had received Jessica Titus’ letter and Denise’s information, and it was determined that these had been received.

The applicant came forward and was sworn. She distributed copies of letters from neighbors on the street. She also offered to provide photographs. She commented that the Staff Report from the County was incorrect and that Mr. Morrison would be speaking to that in giving his recommendation. Upon receiving the incorrect Staff Report, she and her husband felt it necessary to follow up with their letter dated May 4^th stating their correct intent and expressed the hope that it and its 2 additional enclosures had been read. She advised that when she and her husband purchased the home there was a free standing screen porch, as noted on the Property Appraiser’s record, which had been placed on the property in 1977. In an attempt to reinforce an unsteady existing porch, they reinforced and attached framework to their house on the pre-existing slab, eventually removing the screen and aluminum framework. They are now asking for a 10 inch variance so that they can enclose the structure as a garage/workshop/safe housing for their appliances and tools. This will also allow them to insure the structure through their homeowner’s policy without a separate, expensive rider for a freestanding structure. She explained that the existing framework and footprint has been in place for over 3 years and feels that there has been a misunderstanding and/or miscommunication which is causing confusion. They do not intend to tear down or replace anything on the property, simply to enclose the existing structure and were told they need a permit for this purpose. She believes the engineer’s drawings which show a “proposed garage” have caused this misconception.

Ms. Plummer confirmed with the applicant that the footprint to be enclosed is the same as the pre-existing screen enclosure since 1977. Mr. Loomis described how the plans had been highlighted on the application. It was verified that the dimensions are the same as what is now existing. Ms. Plummer explained that the first carport is not the portion in question.

Wes Morrison of Lee County came forward and explained that Staff’s confusion resulted from the fact that on the site plan submitted for the proposed garage there was no notation that a screen enclosed porch was already there. Staff was therefore under the impression that the carport was to be replaced by the proposed garage.

Ms. Plummer confirmed with the applicant that a separate insurance rider is required if the structure is not attached to the house.

The improvements that were made 3 years ago were described by the applicant.

She also verified that the screened porch was on the property when she and her husband purchased it in 1997.

STAFF REPORT: Ms. Segal-George called attention to the E-mail from Jessica Titus, explaining that Mr. Folke was not aware of it, and that Staff was not changing its recommendation. She also pointed out that it is not appropriate for one LPA member to be communicating with the rest of the LPA on matters that are found to be incorrect, resulting in dissemination of inaccurate information. She suggested that each member check their information through Mr. Folke for distribution through herself to the LPA. In Ms. Titus’ absence Ms. Segal-George was not able to determine the origin of the inaccurate information that was contained in this E-mail. Pam Houck of Lee County Developmental Services verified that Staff had not seen the E-mail until now, and was not changing their recommendation.

Wes Morrison came forward and explained the applicant’s request for a variance for the side yard non-waterfront for 10 inches instead of the currently existing 6.8. He described the surrounding area as single family homes, most of which have attached garages such as the applicant is requesting. He apologized for the miscommunication with the applicant. He acknowledged that the proposed garage is not intended to exceed the original setback. Based on the guidelines set forth in the local LDC, there are certain criteria that must be met in order to recommend approval of a variance, and based on those criteria, the applicant has not proved to Staff that there is an extraordinary circumstance placed on the property, and this is the reason for recommending denial.

Ms. Hester asked whether the cement slab being in existence since 1977 would not qualify as an extraordinary circumstance. Ms. Houck responded that in 1977 the setback was 7.5 feet, as it is today. The slab, either then or now, could potentially go up to the property line; it is when a roof is erected over it or the slab is elevated that the setback becomes an issue, so they do not view this as an extraordinary condition. Nor do they view an existing structure as an extraordinary condition that would be inherent in the property. Ms. Hester asked whether the screened enclosure had not had a roof, and Ms. Houck advised that she had learned this today from the applicant’s testimony.

Ms. Plummer questioned the Staff Report as referring to an “accessory structure” requiring a 5-foot setback, which would have been to code. Ms. Houck advised that if it had been attached to and part of the principal structure, a 7.5 foot setback would have had to be maintained. Ms. Plummer pointed out that the applicant does not intend to expand the structure, but to strengthen and attach it to the house.

Ms. Cereceda opened the meeting for Public Comment at this time. There being none, the Public Comment portion of the meeting was closed.

Ms. Loomis was asked to come forward again and state for the record that the freestanding structure was not attached, which she did. In response to a question by Ms. Houck, she estimated that the structure was approximately 3.5 to 4 feet from the house. Ms. Plummer described having personally inspected the property and estimating distance based on her height. Mr. Huber asked whether the roof that is now in place will become the garage roof, and Ms. Loomis replied that this is the case. He also verified that the slab has not changed since 1977.

Public Hearing was closed at this time.

MOTION: Motion was made by Harold Huber to allow the applicant to enclose the existing structure into a garage with doors and solid walls; seconded by Ms. Plummer.

DISCUSSION: Ms. Hester remarked that she was in favor of the applicant’s request until she learned from Ms. Houck that it was a distance of 3 or 4 feet from the house and the roof was attached to the house 3 years ago, she experienced confusion with approving the request. Mr. Huber explained his understanding of the dimensions and the construction required. In response to a question, Ms. Houck advised that County records show no permit for the roof. Ms. Segal-George added that there are strict rules for granting a variance, including that exceptional circumstances cannot result from actions of the applicant. She emphasized that if LPA approves the request, specific reasons addressed to this criteria must be provided. Ms. Cereceda advised Mr. Huber that his motion must be amended accordingly; Mr. Huber waived to Ms. Plummer for this purpose. Ms. Plummer reiterated her statement that it is her belief that there is an extraordinary condition because of the footprint of the slab. The applicant has also taken the roof line to the house to reinforce the structure, and for insurance purposes. She stated this as the basis of the motion, stating that she views it as safer and more desirable to have the structure enclosed rather than having the items stored therein open to the elements. She referred to letters from neighbors indicating support for the applicant. Ms. Plummer was questioned about the second condition, that the extraordinary condition must not result from actions of the applicant, and she explained her position. Mr. Huber added that approval will not result in more intense use of the property, and that he does not consider it practical to require the applicant to remove the roof or the walls to comply with the setback. Ms. Hester agreed that this was logical, but the LDC has strict standards for approval and she has not been convinced that these have been met. Staff was asked whether they would approve a separate structure with the same roof if it were not connected to the house. It was determined that this would qualify for a variance as an accessory structure, and Ms. Houck referred to changing conditions. There was reference to the Staff Report with respect to the effect on the surrounding areas. Ms. Houck presented plans showing that the roof would be replaced with new rafters and a new roof. Mr. Huber pointed out that he had asked the applicant about the roof. At this time Ms. Houck advised that there were many points being raised that required additional research and asked for a continuance in order to meet with the applicant and obtain more information and return with a revised Staff recommendation. Mr. Huber withdrew his motion; Ms. Plummer agreed but expressed concern about leaking. Mr. Huber was considering a motion to continue, but Ms. Segal-George pointed out that in June there are only 2 meetings of the LPA and 4 meetings of the Council, with everyone wanting to get on the agenda before Summer break. There are already 2 hearings, the Carousel and Casa Bahia, on the June 8^th agenda, and it is her understanding that the 3^rd case on today’s agenda is going to ask to be continued until that date as well. If this case is continued, there will be 4 cases on the 8^th, and 3 of them are very complex. The next LPA meeting will be June 22^nd at which there are many other issues to deal with. It was agreed that there will be a 3^rd LPA meeting in June, on the 15^th. This case would then be continued until that date.

MOTION: Motion was made by Mr. Huber to continue this case until a date certain of June 15^th; seconded by Ms. Simpson.

DISCUSSION: Mr. McCarthy expressed agreement with this continuance which would give him further time to examine the materials. Mr. Simon advised that he had not visited the site, but was concerned about the new roof versus the existing roof and agreed that there was not sufficient information.

VOTE: Motion was carried by unanimous vote.

2. REZ2003-00023 & SEZ2004-00012, Fort Myers Beach District Library Additional Parking. A request to rezone from residential multifamily (RM) and Commercial Boulevard (CB) to Institutional (IN) with a Special Exception for a cultural facility (library) per Table 34-1 of the FMB LDC, to permit the expansion of the Fort Myers Beach Library parking lot. The subject property is located at 2709 Estero Blvd.

Ms. Cereceda read the case.

EX PARTE COMMUNICATION: Chair did not ask for ex parte communications at this time.

The applicant, Leroy Hommerding, Director, Fort Myers Beach Library, came forward and was sworn. He explained that additional parking facilities have been a critical need since the library was expanded in 1991, but that there had been a delay until suitable property became available. He pointed out that the Staff Report recommends approval, and is asking the LPA to approve this request in order to accommodate the public and various events that have had to be denied because of lack of parking.

STAFF REPORT: Nettie Richardson, Senior Planner with Lee County Zoning, came forward representing the Town of Fort Myers Beach. She explained that the request is twofold: (1) To rezone an approximately .54 acre parcel located at the corner of Estero Blvd. and School St., and (2) a Special Exception which would bring the existing library into compliance with the Town’s current regulations for an approximately .89 acre parcel located at Estero Blvd. and Bay St. She presented a visual aid showing the site, explaining that the applicant intends to demolish 2 existing commercial buildings and develop the parcel as a parking lot with 2 accesses, one coming off of School St. and the other an internal access to the existing library parking lot.

Ms. Houck described the surrounding areas and how the proposed uses would be compatible and comply with existing regulations upon approval of this request. She stated that Staff is recommending approval of the rezoning request, and approval of the Special Exception with the condition that the proposed parking lot shall be in compliance with the site plan prepared by Piper Engineering, date stamped received December 23, 2003 by the County Permit Counter and reduced and shown as Attachment B of the Staff Report.

Ms. Plummer asked whether the buffer included in the site plan had to be a separate condition; Ms. Houck explained that it is required as part of the Development Order. Mr. Huber verified that both commercial buildings would be demolished and recalled that there had been discussions about historical designation of one or more of these buildings. He was advised that this had been before the LPA in February of 2004 but had not been approved. Mr. Huber had not been present at this meeting. Mr. Folke provided further information on this decision.

The meeting was opened for Public Hearing at this time.

Andrew Piper of Piper Engineering came forward and expressed agreement with Ms. Richardson’s report. He clarified the date of the site plan, which he said his records show as approved December 22^nd. There being no further Public Comment, the Public Hearing was closed at this time.

MOTION: Motion was made by _________ and seconded by Mr. McCarthy to recommend to Council approval of the applicant’s request for rezoning from RM and CB to IN, and that they also approve the applicant’s request for Special Exception with the condition included in the Staff Report dated April 28, 2004.

VOTE: Motion was carried by unanimous vote.

3. TO BE CONTINUED – DCI2003-00079, Buccaneer FM Beach, LLC in ref. to

Suncoast Tide. A request to rezone 1.1 acres currently zoned Commercial Resort (CR) to Residential Planned Development (RPD) under the pre-disaster buildback policy and transfer density and intensity from several parcels to another; with deviations from the following LDC requirements:

1. From LDC Section 10-285, which requires a minimum connection

separation of 250 feet to allow connection separations of 96 feet and 80 feet.

2. From LDC Section 34-632(6)b, which requires the parcels affected by the density transfer to be in close proximity to each other, to allow a transfer from parcels ¼ +/- miles apart; and from Section 34-632(6)c, which requires that the density of the residential or hotel/motel units being transferred be based upon allowable density levels in the Comprehensive Plan category from which the density is being transferred.

3. From LDC Section 34-943 and Table 34-3, which limit building height to the 30 feet and 3 stories, in order to allow 68 feet and 6 habitable stories over 1 story of parking.

4. From LDC Section 34-1807 and 34-3237, which allows interior square footage to be exchanged under the buildback policy on a square foot for square foot basis provided the total interior square footage of the rebuilt dwelling units do not exceed the interior square of 32,460 square feet of interior space.

The subject property is located at 4864 Estero Blvd.

EX PARTE COMMUNICATIONS: The Chair did not ask whether there had been any ex parte communications.

Mr. Folke advised that this case will be continued to June 15^th, which is the same date as the previous case. It was verified that the applicants have agreed to this. The caption of the case was not read.

It was pointed out by Beverly Grady, representative of the applicant, that a motion to continue was required.

MOTION: Ms. Simpson made a motion to continue the Buccaneer/Suncoast Tide case to a date certain of June 15^th, 2004. Motion was seconded by Jane Plummer.

VOTE: Motion was carried by unanimous vote.

V. A DISCUSSION OF HISTORIC MARKERS:

Mr. Folke referred to his memo of May 4, 2004 in which he provided a copy of the sign recommended by the Subcommittee. He pointed out that the Subcommittee had worked on this for several months and approved a sign of simple design that included limited information, and would go only on properties that had actually been designated under the Historic Preservation Ordinance. This would include a limited number of structures at this time: The 2 Historic Society cottages, Roxie Smith cottage on the North end, the Newton Cottage, and Mound House, and St. Rafael’s Church. He recalled that the LPA had expressed a preference for something more elaborate, and advised that the local supplier does not have the equipment to prepare such a sign that would include a logo or other graphic components. If a different prototype is desired, he requested that an LPA member volunteer to obtain one. Otherwise, he asked that the original recommendation from the Subcommittee be reconsidered. Mr. Huber recalled that he had loaned a cast aluminum sign from Kentucky to the Historic Society, and Mr. Folke explained that the Subcommittee had looked at several types of signs of different materials, and had selected one that it was felt would hold up best in local weather conditions, and is relatively inexpensive ($75.00 each.) Ms. Simpson recalled sitting on that Subcommittee and the amount of time spent in deliberations, and how the recommended sign had been determined. Ms. Cereceda agreed to obtain another prototype at less than $100.00. Mr. Folke requested that she do so by June 22^nd. Mr. Simon recalled living in Connecticut where homes along the sea were designated, and suggesting using the word “Circa” instead of the word “Built” on the markers.

VI. PUBLIC HEARING – AMENDMENTS – OUTDOOR DISPLAY OF MERCHANDISE:

EX PARTE COMMUNICATIONS: The Chair did not ask for ex parte communications.

Mr. Folke called attention to Ordinance 04-08 which is in the members’ packets and which are the rules that have been reviewed by the LPA several times. He provided a summary of past discussions in his May 10^th memo and also attached previous Staff memos of June 24^th, 2003, February 11^th 2004, and February 18^th 2004. This applies to the Downtown Zoning District, from Old San Carlos down Estero to between Virginia and Pearl Street. The current rule provides that outdoor displays can be on a vending cart or on an elevated porch; in applying these rules since last year there have been difficulties with what constitutes an elevated porch, as well as questions regarding whether there is a limit to what can be put on the porch and so forth. There has been a workshop with the business owners which resulted in this ordinance. This gives options, defines “porch” and “patio,” and provides for use of a vending cart of specialized display on a patio, identifies 6 different types of outdoor displays, from which each owner could choose 2. Pictures of examples have been included in the ordinance, which may be revised somewhat. Types of products appropriate for outdoor display on the various types have also been identified. All of the above applies to private property; the second portion deals with public property in giving people the opportunity to lease areas. Currently there are leases in Times Square for outdoor dining. Current rules allow leasing on Old San Carlos; the pedestrian streetscape and commercial design standards are intended to create an interesting and vibrant place by having some opportunities for vending in public space. What he is proposing is to limit vending in public spaces to a vending cart or other approved display allowed on patios that must be within the bricked area the same as the food areas. No vending licenses have been issued pending adoption of these new regulations; a fee must also be established. Licenses will be issued for a year, allowing the Town to enforce regulations and agreements with respect to vending rights. Changes on personal services such as temporary tattooing and hair braiding have been incorporated; these will no longer be allowed outdoors.

Ms. Plummer recalled discussing a correlation between the business and the merchandise displayed on the porch. Mr. Folke explained that Paragraph 1, which defines the purpose of the rules, addresses this issue. Mr. Spikoswki suggested that the purpose statement is not specific enough to answer the question, and if it is intended to restrict displays to only like kinds of merchandise, it must be specified. Mr. Folke added that there is nothing that prohibits a retailer from having a food stand, but they cannot sublease the area to someone else to run the food stand. Ms. Segal-George added that the Town has been very active this year with respect to citing people for violations when there was accurate information concerning this. She said there were tickets written and substantial fines imposed, and there were a number of businesses that have disappeared.

Ms. Plummer asked a question about an open air lean-to in Times Square, and Ms. Segal-George explained that this was an existing “shoplet” and had certain rights with regard to what was already there; they kept expanding and were also being cited. It was verified that the hair braiders cannot be outside. Enforcement came under discussion.

Mr. Folke referred to Paragraph 3 which applies to sale of regular merchandise by retail establishments. Ms. Cereceda pointed out that as a retailer, it is very easy to change merchandise. She called attention to the fact that adding outdoor displays increases the merchant’s square footage without increasing their rental expense and expressed a desire to return to John Richard’s original argument of no outdoor displays of merchandise. She was of the opinion that the proposed ordinance will not fix the situation and would be a disintegration of the original intent, giving several examples. Mr. Folke expressed the opinion that this ordinance would fix the problem. Ms. Segal-George added that establishments further down the Boulevard do not have the same rules. She said that in the workshop it was pointed out that these businesses are not sufficiently visible without some kind of outdoor displays.

Ms. Cereceda requested a 5-minute break at this time, saying she wanted to go through this ordinance section by section in minute detail.

During break, Bob Gaydos came forward to solicit blood donors for the Lee Memorial Bloodmobile visit on May 26^th at Key Estero Shops between 10:00 A.M. and 4:00 P.M. He also congratulated the two new members. He gave his telephone number, 765-1015, asking that volunteers call him for scheduling. The bus can accommodate 6 donors per hour. He also acknowledged the members who have departed.

The meeting was again called to order. Ms. Plummer asked Mr. Folke whether the porches must meet handicap accessibility; he was uncertain at which point a building must come into compliance. Ms. Plummer expressed the opinion that if they were granted a permit to expand handicap accessibility should also be required. Mr. Spikowski explained that the Florida Building Code has State mandated accessibility requirements that the Town is not allowed to change.

Public Hearing was opened at this time.

Tim Englam, owner of Wings of Mango Bay on the North end of the Beach, came forward and advised that he has attended all of the workshops. He expressed concern with what he has seen since the last workshop, which has been a proliferation of decks in an attempt to maximize the perceived loopholes, and he recognized the efforts of Mr. Folke and Staff to attempt to improve the situation. He said that from what he observed this Season, he would be in favor of banning outdoor displays entirely. He also expressed concern about enforcement, speaking of his own experiences.

Howard Freedman, representing several of the property owners in the San Carlos area, came forward and referenced additions of over 900 square feet of decks at the Island Motel within the last several weeks, with the application to the County including a decorative sidewalk, all of which is being built in a former parking area. He understands that it would be possible to add walls and a ceiling to that area, and that retail could be sold in that area. He suggested tightening the rules to eliminate such decks, or restrict them to those in existence a year ago.

Public Hearing was closed at this time.

Mr. Folke referred to enforcement of displays on the decks mentioned above. He was of the opinion that a Certificate of Occupancy for retail would be required. He also pointed out that use of parking spaces would have to be addressed.

Ms. Cereceda asked for the members’ opinion on a temporary ban or a moratorium on outdoor display of merchandise until such time as an ordinance is satisfactory to both the LPA and Council, or whether it was preferred to examine the ordinance section by section and go on record with concerns to present to Council.

Ms. Plummer was of the opinion that there had been numerous conversations and workshops on this subject, and she believed the issue should be moved forward by examining the ordinance. She said that in view of the attendance at the workshops, it would be inappropriate to change direction at this time.

Ms. Simpson asked whether a ban would be retroactive. Ms. Cereceda asked Mr. Folke and Ms. Segal-George whether it would be possible to institute a ban. Mr. Folke explained that since outdoor displays are now allowed, an amendment to the Code would be required. Mr. McCarthy asked about a moratorium. Ms. Cereceda was of the opinion that it may never be resolved. Ms. Segal-George explained the mechanics of imposing a ban or a moratorium, cautioning that it would have to be time specific.

Ms. Plummer expressed concern with the expense that merchants would incur and ways to define and regulate the displays. She was opposed to continuing to change the rules.

Ms. Cereceda suggested having applications for outdoor displays, similar to the architectural design process, with approval or disapproval on a case-by-case basis. Mr. Spikowski suggested several ways this could be accomplished on a number of levels, including special exceptions with public hearings and administrative approval. He said he was surprised by the proliferation of porches, recalling a meeting at which the porch issue had been raised by a retailer; he suggested specifying porches that existed as of a specific date to eliminate new porches intended to circumvent the ordinance.

In response to a question, Mr. Folke advised that administrative review with clear and consistent guidelines would be relatively simple to enforce. He agreed that requiring a permit would provide more control because it could always be revoked.

Ms. Cereceda commenced addressing each section of the draft ordinance, beginning with Page 1 of 5. There was discussion under Item C of outdoor displays at Gulf View Shops, which it was determined are illegal as it is not in the Downtown Zoning District. Sidewalk sale at Villa Santini was considered by Mr. Folke to be a special event situation, but on a day to day basis these rules do not apply because Villa Santini is not in the Downtown Zoning District. Various other retail establishments were discussed, including Publix and Eckerd’s. Mr. Folke pointed out that there are many situations that are not consistent with the Code. Mr. Spikowski referred to the “Glitch Ordinance” and suggested that these situations will be addressed when that ordinance is before the LPA on June 22^nd.

Ms. Plummer pointed out that outdoor displays in the Down District are intended to encourage pedestrian traffic, whereas both Publix and Eckerd’s are destinations to which people drive anyway.

Under Purpose, Ms. Cereceda pointed out that it has been agreed that it is not possible to legislate taste, and she finds the subjectivity of the entire purpose language difficult to apply. Mr. Folke stressed that this section does not really contain any enforceable rules and could be deleted if it was felt to be confusing or troublesome.

Item A stipulates a sampling of the products available inside was discussed. The establishments not in the Downtown Zoning District were again mentioned; Ms. Segal-George emphasized that this agenda item only deals specifically with rules applicable to the Downtown District. Private versus public property came under discussion; Ms. Segal-George suggested wording that would specify that on private property outdoor displays must be of the same kind of merchandise to that for sale inside. Mr. Spikowski suggested an appropriate section in which he agreed to make less vague. Ms. Cereceda used a hypothetical example of a flower shop displaying T-shirts with flower designs on them. Mr. Folke pointed out that from an enforcement standpoint, he was attempting to focus on how much was allowed to be displayed outside, and the appearance of the display. Ms. Segal-George agreed that stricter language is needed in this section to avoid expansion of retail space. Display of price tags and signage also came under discussion.

Section 2 on the subject of multiple occupancy came under discussion, with Ms. Cereceda providing examples of specific businesses. Mr. Folke and Mr. Spikowski pointed out that there are definitions included and agreed that a cap should be included. Future potential development of Helmerich Plaza was raised by Ms. Cereceda.

Ms. Segal-George called attention to the fact that there are 2 ordinances on today’s agenda, and it will not be possible to address them both at this meeting with such a detailed approach and consideration of future potential development. She suggested holding another workshop, and Ms. Cereceda advised that this was the reason she initially opposed all outdoor display of merchandise. Responding to Ms. Segal-George’s cautioning statements about time and workload, she asked whether any of the other LPA members have any questions or considerations that they would like to voice at this meeting, following which she will meet with Staff to address her concerns and bring the issue back on June 15^th. Ms. Segal-George pointed out that in that event, it would not be possible to bring the issue before Council prior to Summer break because it must be introduced with 2 Public Hearings, and there is no way to do this with the remaining amount of time.

Ms. Hester said she was willing to stay and work this out, suggesting that FEMA, which is mandatory, be dealt with first. Ms. Segal-George explained the customary procedures for forwarding to Council. Smith v. Clearwater was referenced with respect to decks that might be built over the Summer if this were not finalized until Fall. Ms. Cereceda agreed with Ms. Hester’s recommendation and set the issue aside in favor of addressing FEMA.

VII. PUBLIC HEARING – LAND DEVELOPMENT CODE, CHAPTER 6 – FLOODPLAIN REGULATIONS:

EX PARTE COMMUNICATIONS: The Chair did not ask for any ex parte communications.

Ms. Segal-George advised that this is both an Ordinance and a Public Hearing. Ms. Cereceda read the caption of the ordinance into the record.

Mr. Spikowski advised that these proposed changes had been part of the larger ordinance that will be reviewed by the LPA on June 22^nd, but because of recent activity and a letter from FEMA it was necessary to address them separately. This will only affect one part of Chapter 6, not the building codes or property maintenance codes which remain in the larger ordinance. This particular article of the Code was inherited from Lee County, but major changes were made by the Town in 2000. He explained the reasons for these changes, describing how the Federal regulations mandate specific language. He added that there will be slight disadvantages to the Town as the result of this regulation, however, going against FEMA requirements could result in the Government’s withdrawing flood insurance from the entire Town. He described this action as “several small steps backward” and cautioned that when submitted to FEMA, larger steps may be required which will then be addressed in the Fall. He referred to his memo and the letter from FEMA, citing the last 3 pages which provide a summary of the changes. He further stated that the additional one foot in building height requirement which FEMA specifies for the entire country is not being included in his recommendation, explaining that FEMA rewards communities which do this but he does not consider it practical for Fort Myers Beach.

Mr. Spikowski was asked to give examples of accessory structures, which he provided as a garage, screened in porch, shed, storage building, swimming pool and cage. He was unable to provide a reason for the term “start of construction,” advising that he was including terms and definitions requested by FEMA.

The meeting was opened for Public Hearing at this time. There being none, the Public Hearing was closed at this time.

Mr. Spikowski advised that the required action today was a finding of consistency with the Comprehensive Plan. He said he believes that it is consistent. He also stressed the need for action at this meeting due to the time considerations including Public Hearings before council.

MOTION: Motion was made by ___________ and seconded by _______________ to find the draft regulation consistent with the Fort Myers Beach Comprehensive Plan and to forward to Town Council recommending approval.

VOTE: Motion was approved by unanimous vote.

Ms. Plummer had to leave at this time. Prior to leaving she expressed unhappiness at the notice that Mr. Folke will be leaving and appreciation for his efforts; she also expressed pleasure at being back on the LPA and welcomed the two new members, adding that she will miss Ms. Smith and Ms. Mulholland.

Discussion returned at this time to Item VI, Outdoor Display of Merchandise. Ms. Cereceda inquired whether any other members had comments or concerns. Ms. Hester expressed preference for moving in the direction of a permit. Mr. Spikowski replied that this could be done in a different kind of ordinance with general standards and requirements specified. Ms. Cereceda asked Mr. Spikowski to summarize and prepare a process for review at the June 8^th meeting for transmission to the Council, giving both options. He suggested keeping the standards as mandatory but including a permit as a second level of review. Ms. Segal-George recommended requiring a permit for public property as well as private property, citing as an example pedestrian movement. There was lengthy discussion about regulations affecting public and private property. It was verified that the permit would be renewable annually. Mr. Folke pointed out that this discussion was consistent with the workshop that he had attended, adding that the business owners who attended the workshop are not the ones causing the problems. It was agreed that the permit process could be used for a year and reviewed, and the LPA could choose to recommend abandoning it if so desired. The subject of a hot dog stand outside of a retail establishment raised by Mr. Huber came back for discussion, and Ms. Segal-George observed that this can also be addressed. Ms. Segal-George replied to another question by Mr. Huber, and it was established that all permits would renew at the same date, perhaps to coincide with the Town’s fiscal year, with individual permits being prorated accordingly. Ms. Segal-George explained that there will be two different types of permits, one for public property and one for private property. Ms. Cereceda asked penalties. Ms. Segal-George pointed out that revocation of a permit for a certain number of violations is an enforcement tool, using parasailing and jetski operations as an example. She anticipated that in most cases there would have to be a hearing, with appeal procedures before Council in either event. Ms. Cereceda pointed out that the penalty needs to be severe enough to be a deterrent. Because of the lengthy processes involved, Ms. Segal-George recommended revocation upon 2 violations. Revocation processes were discussed. Mr. Spikowski recommended immediate administrative revocation with appeal provisions. He will draft a document for review on the 15^th of June. Ms. Segal-George pointed to the benefits of having something that could be enforced, observing that there are new types of businesses emerging constantly. A “scarlet letter” type of penalty was brought up by Mr. Huber; it was pointed out that the permit would not affect any indoor business. Mr. Folke brought up the subject of vending machines. The addition to John Richard’s motel was discussed at length, including parking spaces that had been used for the purpose.

The issue of who may operate outdoor displays was raised by Ms. Cereceda. She expressed the opinion that the owner or primary lessee must be specified. Ms. Segal-George and Mr. Spikowski explained that the proposed language would take care of this.

MOTION: Motion was made by Mr. McCarthy and seconded by Mr. Huber to continue this Public Hearing with directions until June 8^th at noon.

VOTE: Motion was carried by unanimous vote.

VIII. LPA MEMBER ITEMS AND REPORTS:

Robert Simon recalled bringing up at the Town Hall meeting a proliferation of golf carts and similar vehicles using the sidewalks and public right of way. When calling the Sheriff, as he was advised to do, he finds that by the time they arrive the offenders have disappeared. He wants to recommend to Council that signage be erected to aid in enforcement, citing this as a public safety issue. It was agreed that this situation is prevalent on the South end of the Island. He provided several personal examples that he had witnessed. Ms. Segal-George agreed to look into this.

Bill McCarthy said he was aware of several handicapped individuals who use such vehicles and asked about permits or such to accommodate them. Ms. Segal-George advised that permits can be issued for motorized wheelchairs, but not for golf carts, which are not supposed to leave private property.

Harold Huber acknowledged the time spent on the LPA by Roxie Smith and Nancy Mulholland and expressed appreciation for their service both as a member of the LPA and a citizen of the Beach.

Jodi Hester also thanked Ms. Smith and Ms. Mulholland for their hard work, and she also expressed sorrow that Mr. Folke is leaving. She welcomed the 2 new members.

Betty Simpson referred to a memo dated May 6^th and her experiences serving with Mr. Folke, saying that he will be sorely missed and asked that he reconsider. She again welcomed the new members.

Ms. Simpson called attention to the proposed change in the Florida Homestead Exemption from $25,000.00 to $50,000.00 and referred to a petition drive for this purpose by Jeff Saull’s group which needs over 488,000 Florida voters’ signatures. She has petitions at home in the event anyone wished to copy it. The Florida Association of Realtors has taken a position not to support this change, which has also come up at a National Realtors’ convention which she recently attended. They do not feel that it should be on the November ballot, anticipating that if it does appear on the ballot it is likely to pass. She feels the concern is with the shortfall of revenue.

She also referenced the Preservation News in which the Town’s historic preservation efforts at the Mound House and elsewhere had been recognized.

Anita Cereceda welcomed Mr. McCarthy and Mr. Simon and expressed sadness at the departure of Ms. Smith and Ms. Mulholland. The observed that this is an opportunity to bring two new people into the establishment, saying that she looks forward to working with them and also referring to the diverse personalities within the group.

Ms. Cereceda recalled meeting Mr. Folke for the first time and expressed appreciation for his efforts, complimenting his accomplishments.

Marsha Segal-George pointed out that a new member is required for the Historical Subcommittee to replace Ms. Smith. She will place this on the agenda for the next meeting. Ms. Simpson said this was a good committee to sit on.

IX. PUBLIC COMMENT:

A member of the public (name inaudible) came forward and commented on the discussion about outdoor display of merchandise. He expressed pleasure with the LPA’s deliberations on this matter and also complimented Mr. Folke on the occasions on which they worked together at the workshops. He stressed that Mr. Folke had a unique ability to listen to and accommodate people at those workshops and to remember what was said afterwards and act upon it.

X. ADJOURN: Meeting was adjourned at 3:50 P.M.

Respectfully submitted,

Patricia L. Middlekauff

Transcribing Secretary