FORT MYERS BEACH
LOCAL PLANNING AGENCY MEETING
JUNE 8, 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, June 8, 2004 at 12:00 P.M. by Chair Anita Cereceda.
Members present at the meeting: Anita Cereceda, Harold Huber, Bill McCarthy, Jane Plummer, Robert Simon, Betty Simpson, Jessica Titus.
Excused absence from the meeting: Jodi Hester, Hank Zuba.
Staff present at the meeting: Planning & Zoning Specialist Chris DeManche, Jerry Murphy of Lee County Zoning, Town Manage/LPA Attorney Marsha Segal-George
II. INVOCATION AND PLEDGE OF ALLEGIANCE: All those present assembled and recited the Pledge of Allegiance. The invocation was given by Ms. Simpson.
Ms. Cereceda requested and received approval to postpone action on the minutes until the end of the meeting in order to proceed with the Public Hearings.
III. *APPROVAL OF MINUTES, MAY 11, 2004 & MAY 18, 2004:
MOTION: Motion was made by Ms. Simpson and seconded by Ms. Plummer to approve the minutes of May 11, 2004.
VOTE: Motion was approved by unanimous vote.
MOTION: Motion was made by Ms. Simpson and seconded by Ms. Plummer to approve the minutes of May 18, 2004 with corrections.
DISCUSSION: Ms. Simpson: On Page 1, the first motion to elect a Chair and Vice Chair was made by Ms. Hester, not Ms. Plummer. Mention of Ms. Plummer under the ensuing Discussion should have been Ms. Hester. On Page 2, Dennis Loomis should have been Denise Loomis. On Page 4 there are 2 mentions of Public Hearing being closed and only one is needed. On Page 6 the motion left blank was made by Ms. Hester and seconded by Mr. McCarthy. On Page 8 the name is Tim Anglim, owner of Winds and Mango Bay. On Page 10 the motion was made by Ms. Plummer and seconded by Ms. Simpson. On Page 12 the second sentence under Ms. Cereceda’s report should read, “She observed …” Under Public Comment, the inaudible name should read Tim Anglim.
Ms. Cereceda explained for the benefit of the transcriptionist when it is necessary to include ex parte communications. She noted that ex parte should have been requested in the Library case, and asked whether any members had had discussions concerning the library. Several members had received notes but had not had discussions.
VOTE: Motion to approve the minutes with corrections as noted above passed by unanimous vote.
IV. PUBLIC HEARINGS:
1. DCI2003-00034, Ecoventure Carousel, Ltd. In ref. to Carousel Inn RPD. A request to rezone 0.73 acres from Residential Multifamily (RM) and 0.96 acres from Commercial Resort (CR) to Residential Planned Development (RPD) to develop 16 multiple-family dwelling units in one multiple-story building with a deviation from the LDC “pre-disaster buildback provision” to allow 16 dwelling units and 83,103 +/- square feet of interior space and a deviation from the LDC building height limitations to allow building height not to exceed 4 stories over 1 story of parking not to exceed 55 feet above base flood elevation. The subject property is located at 6230 Estero Blvd.
Ms. Cereceda read the case into the record. Those who wished to testify came forward and were sworn.
EX PARTE COMMUNICATIONS: Ms. Simpson reported that she had attended a presentation by the applicant some time ago prior to an earlier hearing. Ms. Plummer also reported that she had spoken with the applicant prior to an earlier hearing.
Bob Pritt of Roetzel and Andress Law Firm came forward in lieu of Beverly Grady, who he said was on vacation, as representative of the applicant. He asked to reserve time for closing remarks.
Ms. Cereceda announced at this time that Jane Plummer had arrived at this point, and that Jessica Titus called and advised that she would be late, while excused absences had been received from Jodi Hester and Hank Zuba. She also went on record at this time to ask for ex parte communications.
Mr. Pritt advised that Ed Oelschlager, President of Eco Group was also present, together with architect Robert Hall, Robert Mulhare, a Certified Planner, and George Schwartz, a traffic engineer. Bobby White, who testified at the last hearing, would also be on hand to answer questions if desired. He recalled that this was a continuation of a hearing that was held before the LPA on January 20, 2004. At that time there were issues and concerns that were raised resulting in the applicant’s request for a continuance. The applicant has since addressed those concerns and filed a revised submittal which they are here to present today. He described the parcels on which this RPD is being requested, one of which is vacant and the other the parcel on which the Carousel Motel is situated. He described the Carousel, which contains 28 lawful units, as severely outdated and obsolete. The proposal is to demolish the motel, combine the vacant parcel with the motel parcel, and build a 16-unit, 4-story over 1 story parking upscale residential condominium with amenities for the residents and provisions for public benefit, which he said will be the subject of subsequent testimony. He referred to the Staff Report, respectfully expressing disagreement with the legal conclusions contained therein and referencing the Key West Courtyard as a precedent. He said he has examined the Comprehensive Plan and Land Development Code, emphasizing the buildback provisions and calling attention to several policies which he referenced.
Ed Oelschlager came forward and provided a brief history of EcoGroup for the benefit of the new LPA members. He explained in detail the differences between the original proposal and the one being offered today, including density/intensity and conversion factors as well as building height He expressed disappointment that they were not able to reach an agreement with Staff, pointing out that under-building parking should be encouraged. He referred to the age of the building and the fact that it is economically obsolete. He said a condo/hotel was discussed as an option but was not considered feasible. Mr. Oelschlager also referred to the environmentally critical portion of the property, which he referred to as a down-zoning with a practical effect of taking the property. He stressed that they have compromised numerous times and that there is nowhere else to go with this property other than their current proposal.
Robert Hall came forward as project architect and presented some visual displays to illustrate the difference between the original proposal and the current one. One of the displays showed what could by right be built on the site without LPA approval, which he referred to as “in bulk.” Mr. Hall pointed out that the setback has been increased to 120 feet; public beach access and a public transit stop have been included; and he described other amenities. He said they have made every attempt to reduce the size of the building and provide appropriate architecture and landscaping.
Ms. Plummer asked whether the parking would be enclosed. Mr. Hall explained that all of the parking was contained under the building and enclosed.
Mr. McCarthy inquired what the overall height of the building would be from the ground to the spire. Mr. Hall replied that the overall height is 55 feet, and estimated possibly 65 to 70 feet to the spire. Mr. McCarthy expressed concern that the towers appeared to be another story, and Mr. Hall explained that varied building heights were an architectural device they had used, pointing out that the Code requires roof access and elevators that are also factored into the design.
In reply to a question by Mr. Simon, Mr. Hall replied that the individual condo ceiling heights are 10 feet at every floor.
Bob Mulhare, a planner with RWA Inc., came forward and recalled his appearance before the LPA in January. He explained the planning philosophy as it relates to the request and to the Staff Report. He pointed out that the parcel, having been developed in the 1960s, is largely underutilized by today’s standards and also called attention that different periods of development require different methods of redevelopment. He respectfully took exception to Staff’s position that the request is inconsistent with the Comprehensive Plan. He pointed out that the Plan allows for deviations to be requested, such as height when surrounded by taller buildings. He pointed out a note pertaining to an encroachment for a pool deck seaward of the CCCL and explained that while this was one of the original deviations that were requested, it was taken off the table at the last meeting. While the deviation was removed, the note from the MCP remained, but this note is no longer valid. He referenced the buildback provisions, explaining how they believe this is met in their proposals. He stressed that they are willing to comply with whatever is desired with respect to dune restoration. Mr. Mulhare observed that a critical question in the Staff Report is whether the RPD proposal results in an increase in intensity/density, which he said they submit it does not by any reasonable measure. He also made reference to conversion factors. They are now proposing 12 units instead of the previous 20, and he explained that this will result in a traffic reduction as well as a decrease in sewer and water use. He pointed out that the Plan says as long as you are not more intense or dense, then through the predisaster buildback policy which directs you to the post-disaster buildback conditions, you can rebuild, and deviate from the former square footage if you can demonstrate that you are not more intense or dense. He said that he believes they have done that. He said that he has had conversations with Lee County Staff, and he understands that at the time of incorporation the Town was concerned with what was considered overbuilding under the Lee County regulations. He referenced a number of other projects and named the density of units per acre which are greater than this proposal. He also referenced Key West Courtyards, which he said has some similarities to the subject property. He also pointed out that by combining the Carousel parcel with the vacant parcel, the density is decreased from both the previous proposal and the existing usage. He also referred to the 7 criteria in the Plan and explained how they believe they comply with each one. He also referred to the provision for relief from the height limitations for properties surrounded by, or contiguous to taller buildings. Floor area ratio was explained. Their FAR is 1.13 which includes 20,000 square feet for under-building parking. He showed some exhibits which illustrate the heights of surrounding buildings.
Ms. Plummer asked for clarification of one of the exhibits. Mr. Mulhare explained that this was their previous proposal for 6 stories over parking.
Mr. Simon expressed concern with the building height, asking why the ceilings have to be 10 feet. Mr. Mulhare and Mr. Hall explained that this is market driven.
George Schwartz, a transportation engineer with David Plummer & Associates came forward. He presented figures on trip generation estimates for a motel versus the proposed residential units, which would be lower for the latter. Based on these estimates, these proposed residential units would generate 40% less A.M. traffic, 38% less P.M. traffic, and 47% less daily traffic.
Mr. Pritt asked that the exhibits be included as part of the record.
Ms. Cereceda expressed appreciation to Mr. Oelschlager for the effort to which he has gone.
Jerry Murphy came forward on behalf of Staff and entered Staff’s revised Staff Report dated November 25, 2003, which was included in the packets, into the record. He said this has been revised to address the revisions made by the applicant in today’s presentation. He said that Staff agrees that this is a very attractive design and appreciate the applicant’s efforts in reducing the density and height, but the project is still considered too dense, and as a rebuild, too intense. The plan allows rebuilding at the existing density and intensity, while the applicant proposes to graft on the existing density and the allowable intensity under the FAR. Though slightly reduced, this is considered a much more intense interior space area than would be allowed under a rebuild to preserve the existing density or less, but over the density for blank land. He also addressed the concerns Staff has with the height of the building. He stressed that Staff has made no legal conclusions. These are Staff’s planning beliefs based on their interpretation of the Comprehensive Plan and LDC. He also said he is not aware of any case that concluded that the Town’s zoning maps with regard to EC for anything seaward of the CCCL constituted a taking. He also referenced Key West Courtyard and explained the process used to convert 15 guest units to 4 dwelling units, pointing out an error in the Staff Report with respect to this case. He said there has been no precedent since adoption of the LDC and apologized for the error. He stressed that the only instance in view of the current climate in which Staff would make a recommendation for approval of more than allowed by the LDC is in the case of bathrooms which do not meet code, for which provision has been made in the Code. He described the idea that it is possible to expand under the buildback as a very dangerous notion. He explained the conversion ratio and maximum number of units and square footage that would be allowable. Mr. Murphy read into the record a letter which had been received from the Coquina Condominium Board at 6100 Estero Blvd. dated May 31, 2004 and received at Lee County June 2, 2004 in reference to this case which read, “Dear Planner: As we said in our letter of December 1, 2003 we strongly disapprove of granting the above rezoning request. Signed, Coquina Condo Association, Walter Leskiw, President and Frank Sims, Vice President.”
Mr. Huber verified that the square footage figure referenced by Mr. Murphy would include the understory parking. There was discussion about square footage with respect to both parcels.
Ms. Plummer verified that the applicant’s request is for 83,103 square feet, and she also verified with Mr. Murphy that what is allowable under current regulations would be 88,000 with 10 dwelling units of density. Mr. Murphy explained that this would be the maximum allowable square footage, and they would also be required to stay within the setbacks, both waterbody side and front, and stay within the height absent of granting a deviation. The FAR, which he described as very generous, is 1.2. He acknowledged that given all the other requirements, it may not be possible to achieve that FAR, depending on the case and on the property. Mr. Murphy also acknowledged that there is no conversion factor from motel to residential. He said this has been discussed previously, and Staff’s position has always been that absent the example of Key West Courtyard, unless the Town wants to adopt a number, Staff does not feel that a higher number is appropriate.
Ms. Cereceda again expressed appreciation for the length to which the applicant has gone in adjusting their plans. She called attention to the fact that the applicant was of the opinion that 4 stories over parking would be acceptable, and Mr. Murphy explained that all other things being equal, 4 stories over parking would be acceptable for that location, but not coupled with a deviation for intensity and density. Ms. Cereceda said she had prepared a chart for examination of the applicant’s requests and expressed the opinion that “we have trapped ourselves in a weird box.” She observed that the trend is to convert commercial hotel/motel properties to residential, recalling that at time of incorporation the Town was in favor of less commercial and more residential development. Comparing cases, whether precedent or not, she did not feel is appropriate. She also addressed the height issue.
Ms. Plummer observed that the Comp Plan does not allow for an increase in square footage, pointing out that the Town is no longer a fishing village and nobody wants to stay in a 200 square foot hotel room. Ms. Cereceda’s residence was used as an example. She felt that the Comp Plan has erred by not allowing compensation for reducing intensity. Mr. Murphy acknowledged that there was no conversion factor in the Comp Plan.
The meeting was opened for Public Hearing at this time.
Marilyn Hinckel, a Fort Myers Beach resident and Sunset Condo owner, came forward as representative of the Sunset Condo Association. She explained that their property is adjacent to the Carousel Motel, which is North of them. She said her family has visited since 1970, and they bought their property in 1979. At that time she was advised by the developer that a moratorium on construction was imminent on the Beach. She also called attention to an editorial in last Friday’s News-Press entitled “Beach Needs to Stay Firm on Growth” and quoted from the last 3 paragraphs. Their position was to oppose the original proposal for the Carousel property, and identified their concerns at the January 20th meeting. This position was reiterated April 13th with a letter submitted to Mr. Murphy for file, and their position has not changed. She said that the proposal introduced today is very grand and nice; however, they strongly oppose any deviation from the current building height limitations and strongly oppose the creation of sand dunes along with the planting of sea grass.
Judy Haataja of 400 Bayland Rd., owner of Century 21 Tri-Power Realty, came forward and advised that at Sanibel View at Pink Shell they are currently selling 380 square foot motel units for $315,000.00, indicating that there is a market for hotel rooms and that size is not a deterrent. She also observed that the existing 28-unit building could be gutted and refurbished, together with the potential for another 4 units on the vacant parcel. Ms. Haataja pointed out that the Comp Plan does not allow for redevelopment, whereas there are many older properties on the Beach that need to be redeveloped. She stressed that the applicant has developed many properties of high quality and that his proposal makes sense.
Public Hearing was closed at this time.
Mr. Mlulhare pointed out that it is not appropriate to measure intensity for residential buildings by square footage, but rather by density. The larger building does not necessarily result in greater intensity than the previous 15,000 square foot hotel. He referred to the respective setbacks for the Carousel property and the Sunset Condo, observing that a 50-foot view corridor will remain in effect and pointing out that the setback applies just to the first level of the parking garage, whereas the building is set back another 5 or so feet.
Mr. Pritt made his closing remarks, calling attention to several sections of the Comp Plan and LDC.
Ms. Titus asked for clarification of the view corridor.
Ms. Simpson asked whether the purchasers of the residential units are expected to be full-time residents or rentals. Mr. Oelschlager explained that in his experience, there will be perhaps 20 to 30 per cent full time occupancy, not on a year-round basis. Because of the price of these units he does not anticipate that they will be rented to any extent. In his experience, the higher the price of the units, the less they are rented. He said he can almost guarantee that the owners will not be year-round residents.
Mr. Huber referred to Mr. McCarthy’s earlier question about the height, and asked whether any of the rooftop structures would be used by the owners; it was explained that these are for elevators, utilities and the like; however, the applicant does not feel it would be appropriate to lower the height of the building by eliminating or altering these structures for architectural reasons.
Mr. Murphy referenced to Mr. Mulhare’s observation that it is not appropriate to measure residential intensity by square footage, pointing out that Fort Myers Beach does so in the Comp Plan. He also did not believe that the view corridor would be achievable. He also found the regulations which had been referenced to be very clear.
In reply to a question by Ms. Cereceda, Mr. Murphy advised that in his opinion if the request were approved it would be in violation because it is asking for a deviation from density/intensity which the LPA is not allowed to grant. Staff cannot support a deviation for a bigger project under a buildback.
Ms. Plummer disagreed with the interpretation of intensity/density.
Ms. Simpson complimented the exhibits and the presentation. She referred to the Plan which calls for 3 stories, 2 over parking, and expressed the opinion that the FAR should be addressed at another time. She also expressed concern with view corridors.
Ms. Plummer again called attention to the fact that the motel with its existing 28 units could remain, together with another 4 potential units on the vacant parcel, which would be more than the requested 16 units. She disagreed that the intensity/density was not being reduced.
Mr. Simon asked for the square footage of each unit. Ms. Cereceda pointed out that it was not appropriate for the LPA to become involved in discussions of the interior units or design of the building, although this was sometimes done as a courtesy to the applicant. She stressed that all the LPA must do is give a “yes or no” answer. Mr. Simon expressed the opinion that the plan was for a beautiful building that would be an asset to the area, but he had a problem with the height.
Ms. Cereceda remarked that she has attempted to find a vehicle for overriding the Staff Report and the fact that the application is inconsistent with the existing Plan, and has come to the conclusion that the intent of the plan was not necessarily what is occurring in this case. She said that while she loves the project, she must conclude that the application is inconsistent with the Plan.
MOTION: Motion was made by Ms. Cereceda and seconded by Mr. Simon to deny the applicant’s request.
DISCUSSION: Mr. Huber felt that it was necessary to give more than a “yes or no” answer. He felt that the applicant should be given specific reasons, such as the building height, expressing concern that a lower building height with fewer units may not be economically feasible. It was pointed out that the applicant next goes before Town Council. Ms. Cereceda observed that the applicant has made dramatic changes and has put forth more effort than any other applicant coming before the LPA and Council. Ms. Titus agreed with Ms. Plummer and expressed disappointment and embarrassment that the applicant has put forth so much effort and the Town could not provide better guidelines regarding what would be acceptable and consistent. Ms. Segal-George pointed out that the LPA does not have the latitude to change the Plan in the event it disagrees with it, but that there is an avenue to deal with Comp Plan issues. She stressed that the LPA’s job is to enforce the rules of the Town to the best of its abilities. The applicant has made every effort to fit their plans into the Town’s regulations, but it is not always possible to make a match.
Ms. Plummer commented on Staff’s remark that 4 stories over parking would be acceptable, and Ms. Cereceda pointed out that it was totally inappropriate for Staff to make such a statement. Ms. Plummer expressed the opinion that the Town will have obsolete buildings from now on because it doesn’t make sense to redevelop. She does not feel that this is overbuilding, nor is it an increase in density and intensity.
Mr. McCarthy observed that until such time as changes in the Plan are forwarded to the Council and passed, the LPA must listen to Staff and the developer and follow the codes that are in effect. He therefore must take Staff’s recommendation.
Prior to taking the vote, Mr. Murphy interjected that he wanted to remind the LPA about ABACO, suggesting that the motion include that if Town Council were to consider any other development scenario that you request it be remanded to the LPA for consideration. Ms. Cereceda agreed.
VOTE: Motion to deny the application was passed by a vote of 5 to 2, Ms. Titus and Ms. Plummer voting “Nay.”
Ms. Segal-George advised that this case would go before Council on June 30th, 2004 at 9:00 A.M. Ms. Cereceda requested that in the event Council decides to do something other than the LPA’s recommendation, the case be returned to the LPA.
A recess was taken at this time.
2. DCI2003-00087, JKJ Developers, Inc. in ref. to Casa Bahia. A request to rezone 0.2 acres from Residential Conservation (RC) to Residential Planned Development (RPD) to construct 4 multiple-family dwelling units as pre-disaster buildback with deviations from setback and driveway width requirements. The subject property is located at 855 Lagoon St.
The above case was read by Ms. Cereceda. Those wishing to give testimony came forward and were sworn.
EX PARTE COMMUNICATIONS: Ms. Cereceda asked if there were any ex parte communications. Mr. Huber advised that he had visited the property but did not see anybody. Ms. Plummer said she met all of the owners the first time she visited and she had returned to the property. Ms. Titus said she met with several of the property owners prior to the first hearing but has not had any contact since then.
Mike Roeder, director of planning at Knott Consoer, came forward representing the applicant. He provided background beginning in April at which time they asked for 5 deviations. The case had been continued to allow the applicant to confer with Staff and revisit the site plan. He referred to several sections of the Comp Plan pertaining to deviations, recalling that in conversations with former Community Development Director Dan Folke, Mr. Folke had expressed the opinion that a “modest” increase in interior square footage would be approvable. He said the applicant was not willing to risk disapproval, and after meetings with Pam Houck and other County Staff it was decided not to increase interior square footage. As a result, some of the setbacks are now further back than previously. The applicant agrees to remove the tiki hut if required, and agrees to pay a contribution toward a public improvement such as a bus stop. The applicant had also been asked to research and verify that the 4 existing units were lawful. From all of the easily accessible Property Appraiser records going back to 1996 four units were clearly documented. After being asked to research further, they obtained Property Appraiser Field Notes, poorly legible copies of which are included in the packets. These undated records indicate 4 units. It appears, however, that 3 units were built originally in 1958, with the 4th added in 1973. They were dismayed to see that the Staff Report used the 1972 regulations, finding that the 1973 addition was not legal. He stressed that there are many structures on the Beach that would not be conforming under these regulations. He produced the 1950 plat showing lot and block and the survey indicating the square footage of the lot, measured landward of the seawall. He pointed out that the lot actually extends into the lagoon, and the surveyor provided measurements of this portion, copies of which were provided to the LPA members. Mr. Roeder advised that this provides another 1270.14 square feet within the platted lot, which added to the original measurement and multiplied by 15 units per acre, results in 3.501, rounded up, which he said complies with the 1972 density requirement. He called attention to the Staff Report’s requirement that if approved, applicant pay for a new bus stop on Estero Blvd., pointing out that in his meeting with Ms. Houck he was told that there would be permitting issues since it was on public property. They are offering to contribute $2,000.00 toward the cost of that bus stop as a fair share, and he thought Staff agreed with this proposal. He added a comment about the location of the existing bench with respect to the view of adjacent residents.
Tim Stone, architect with Archimetrics, Inc., came forward and expressed the opinion as an independent practitioner on FMB that he has struggled with the same difficulties as the planners and designers in the previous case. His interpretation of the regulations is the same as Mr. Murphy’s: that they are limiting and lack the flexibility that he believes the Beach wishes to have. As a practitioner he said it is difficult to attempt to satisfy Staff’s concerns knowing that they are obligated to hold to the terms of the book.
He provided a brief history of the project, providing copies of documents indicating that at the time JKJ purchased the property in 1999 it was a 4-plex. These documents included a purchase agreement, Property Appraiser’s cards, and a letter from the previous owner. He described the existing property and how the decision was reached to apply for a permit under the buildback provisions for 4 units. He referenced the Staff Report findings and recommendations which resulted in the application being continued to allow applicant to meet with Staff to review their differences. He said those meetings were productive and that he believes the applicant and Staff now have a proposal acceptable to both. Mr. Stone gave an overview of the project including square footage and setbacks, using drawings to illustrate the project. He said that the project asks for no increase in density, no increase in intensity (square footage), no change in use, is less than the minimum height allowed by regulations, has an architecturally acceptable character, and is acceptable to the neighbors and the community as demonstrated in the last hearing. He called it a “model” for a buildback project. The only remaining issue was density, which has been addressed by Mr. Roeder.
Mr. Murphy came forward to present the Staff Report, which he entered into the record as Staff’s testimony. He called attention to Policy 4E1 as the only issue, namely, lawful density. He said Staff does not agree that there are 4 lawful units, calling attention to Exhibit B which references an apartment being added in 1973. He said it is not clear that the unit was ever permitted, calling attention to Exhibit C. He expressed concern with interpretation of the Property Appraiser’s Field Card. He said that if it can be demonstrated that the 4 units are legal, Staff will be happy to approve the project, pointing out that the applicant has put forth effort to comply with every other Staff concern. He stressed that the fact that the unit referred to as constructed in 1973 did not meet setbacks at that time causes belief that it was not constructed under a permit.
Ms. Plummer had visited the property at the request of the applicant, and she described what she found behind the 6 doors that had been in question. Mr. Murphy advised that due to several factors there was not time for him to make such a thorough inspection.
Mr. Huber observed that if Staff cannot determine whether this is a legal unit, he does not know how to act in making a motion. He would like to move the project forward as presented, and asked Ms. Segal-George for advice. He said he had visited the site and found 4 units existing, with which he felt comfortable. Ms. Segal-George recalled her personal experience with inaccuracy of the Field Cards with respect to her own residence. She verified with Mr. Murphy and Ms. Houck that they believe the 4th unit could not have been added lawfully in view of regulations that were in effect at the time. In the absence of documentation to the contrary, they have 3 lawful units. Ms. Cereceda expressed the opinion that because Lee County’s records in the early 1970s were unreliable, the applicant should not be penalized. Ms. Segal-George pointed out that when a change is requested, the applicant has the burden of proof that what he has is legal. She called attention to the fact that there is no authority to “forgive” what has been done unlawfully in the past.
Ms. Plummer noted a Property Appraiser’s document that refers to 4 bathrooms and a unit that apparently existed in 1958, prior to zoning. She referred to the issue of setbacks, pointing out that at one time there was an administrative setback variance procedure, the records of which had been destroyed years ago. Ms. Segal-George explained the function of the Staff Report, saying that the LPA can determine based on testimony that it wishes to determine that there are 4 units; however, the Staff Report cannot make such a determination.
Ms. Cereceda asked Mr. Murphy to explain how Staff arrives at a position where it recommends denial, but adds conditions in the event of approval. Mr. Murphy advised that he rarely does so, but that in this case he has given all available information and is still uncertain. Staff has taken a customarily conservative position, but has provided conditions in the event the LPA wishes to decide otherwise.
In response to question by Mr. Huber, there was discussion about how and when the 4th unit may have been added, including the possibility of an administrative variance for setbacks. There are no records of a Public Hearing for this property. Ms. Segal-George cautioned not to use the Property Appraiser’s records as proof of anything. Ms. Houck added that materials and type of construction might provide some information. Mr. Stone was asked to address this. He said that if the burden of proof is on the applicant, they have exhausted all avenues of proof. He further described the building in detail. Ms. Houck explained that the type of building materials is sometimes taken into consideration, as well as electrical meters and date of installation, records of which are kept by the power companies.
Ms. Plummer verified that the square footage of the proposed units is essentially the same as existing.
The meeting was opened for Public Hearing at this time. There being none, Public Hearing was closed.
Mr. Roeder agreed that there are no permanent building records that prove when the 4th unit was added, offering another speculation. He pointed out that many older buildings were constructed or added without provable permits, adding another obstacle to the approval of pre-disaster buildback applications. He expressed the opinion that it is not in the best interest of the Town to do this. There was discussion about verification of electric meters.
MOTION: Mr. Huber made a motion to approve the applicant’s request for the 4 units with the condition as spelled out in the alternate proposal by Staff. Motion was seconded by Ms. Titus.
DISCUSSION: Mr. Huber expressed concern regarding the deviations concerning uses and asked for an explanation how this could be applied. He requested to amend his motion accordingly. Mr. Murphy explained that there is a definition of “family” contained in the LDC, which he read. Ms. Segal-George cautioned against becoming focused on this definition. Mr. Huber said he would like to change #4 and accept the applicant’s offer of $2,000.00 toward the expense of a traffic stop. Ms. Cereceda objected to this, and Mr. Huber restated his motion accordingly, observing that it was the intent of the LPA to try to reach common ground. He restated his motion that the conditions apply with the elimination of #4. Ms. Titus agreed. The motion is now to approve the applicant’s request with the conditions and deviations stipulated in the revised Staff Report with the elimination of #4 of the conditions on page 2 of 7.
VOTE: Motion was passed by a vote of 6 to 1: Mr. Simon, Mr. Huber, Ms. Simpson, Ms. Plummer, Ms. Titus, and Ms. Cereceda voting affirmative and Mr. McCarthy voting “Nay.”
Ms. Segal-George advised that this will go before Council on June 28, 2004 at 9:00 A.M.
A lunch break was taken at this time. After break Ms. Segal-George advised that she has just hired Mr. Murphy.
3. PUBLIC HEARING – OUTDOOR DISPLAY OF MERCHANDISE:
Ms. Segal-George advised that this had been introduced at last night’s Council meeting, and that in order to meet the requirements to get this through it was introduced with what was before the LPA, with the understanding that if there were changes they could be substituted prior to the first Public Hearing on the 21st. This was the only way to get this through this month.
Ms. Cereceda asked for a definition of patio with respect to outdoor dining. She also had some comments about signs and umbrella advertising. It was decided to prohibit advertising on umbrellas altogether. Payment of fees established for vending rights was brought up, and it was determined that these are the same for restaurants and retail establishments and are very inexpensive at present. Ms. Cereceda questioned revocation of permits and how this would be enforced, and also whether fines would apply to the business owner or the property owner. Ms. Segal-George observed that there are a number of transient businesses and that it is difficult to keep track of them. Everything is being sent to property owners because of this. It was pointed out that there is language providing that citations could be issued to either the business or property owner, or anyone causing a problem. There was discussion about enforcement and attitudes, and Ms. Segal-George explained that in the case of hair braiders and temporary tattooists the property owners were cited and were required to appear before the hearing examiner. It was also pointed out that there is provision for revocation of the permit. Ms. Cereceda verified that the permits would be public record. John Richard’s partially built porch was discussed. It was also determined that vending machines are not regulated. Ms. Cereceda brought up the issue of adding retail space and eliminating parking by construction of decks in parking areas.
The meeting was opened for Public Hearing at this time.
Herb Atkin, a long time Beach resident and business owner, came forward and asked whether what is under discussion must go before Town Council. Ms. Segal-George explained that nothing is binding, and that there is a hearing on June 21st at 6:30 P.M. and another on June 30th at 9:00 A.M. and only after June 30th would any of this become binding, if approved. She pointed out that there are other rules in effect at this time. There was discussion about outdoor umbrellas and the possibility of increasing the fee for leasing public space. Mr. Atkin expressed concern that his business may not continue to thrive under what he perceives as an increasingly restrictive climate. He also made reference to the Carousel case, expressing concern with the denial of their proposal to renovate. Mr. Atkin complimented the LPA members on their service. He expressed further concern about the future of Fort Myers Beach in view of the increased difficulty of doing business. Ms. Cereceda suggested that Mr. Atkin as well as other merchants participate in the Times Square Committee rather than being reluctant to be part of the process. She expressed appreciation to Mr. Atkin for taking the time to attend this meeting. Mr. Atkin also asked about outdoor carts and displays, and he was directed to the document.
Public Hearing was closed at this time.
MOTION: Motion to find the ordinance consistent with the Comprehensive Plan and recommend that Council approve it as written with the exception of deleting the end of the sentence of Paragraph 5.A so lettering on umbrellas would no longer be allowed was made by Ms. Plummer and seconded by Ms. Simpson.
VOTE: Motion was carried by unanimous vote.
V. LPA REPLACEMENT FOR THE HISTORIC SUB-COMMITTEE:
Ms. Segal-George explained that Roxie Smith had been a member of this Sub-committee, and Ms. Titus had also resigned. Ms. Simpson is still sitting on this Sub-committee, and 2 members are desired. Chris DeManche advised that this is usually a light agenda, and Ms. Simpson added that it is a good committee on which to serve. It was decided to table this in order to determine whether either of the absent LPA members would be interested.
*The minutes were addressed at this time.
VI. LPA MEMBER ITEMS AND REPORTS:
Harold Huber expressed concern that there was discussion of replacing a member for missing one meeting.
Jessica Titus asked whether the same person owns all of the Winds, and it was verified that he does not own all of them.
Jane Plummer asked Ms. Segal-George whether an individual with 2 Florida licensed vehicles can only have one parking permit, and she suggested this question be referred to Public Works Director Damon Grant.
For the benefit of the new members, she referred to a financial disclosure statement which must be submitted by July 1st or there is a fine of $25.00 per day. She described her personal experience last year.
She asked Ms. Cereceda about a space where the hair braiders had been which is littered with construction materials. She was told to call Code Enforcement, and Ms. Cereceda said she would take care of this as it is in the process of being cleaned up.
Betty Simpson thanked Ms. Segal-George for seeing that lunch was provided today.
Anita Cereceda asked that an opaque projector be purchased so that attendees can see the visual presentations.
VII. PUBLIC COMMENT: None.
Ms. Segal-George called attention to the fact that next week’s packets had been distributed and that there are 2 complicated cases on the agenda. She stressed that the June 22nd meeting will be very important because it will be work to be completed over the Summer. She also advised
that Council must complete 6 cases in 3 meetings. Ms. Cereceda requested that lunch be provided for the next 2 meetings, and Ms. Segal-George agreed.
VIII. ADJOURN: The meeting was adjourned at 4:03 P.M.
Respectfully submitted,
Patricia L. Middlekauff
Transcribing Secretary