FORT MYERS BEACH
LOCAL PLANNING AGENCY MEETING
APRIL 13, 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, April 13, 2004 at 12:00 Noon by Chair Betty Simpson.
Members present at the meeting: Anita Cereceda, Jodi Hester, Harold Huber, Nancy Mulholland, Jane Plummer, Betty Simpson, Roxie Smith, Jessica Titus, and Hank Zuba.
Excused absence from the meeting: None.
Staff present at the meeting: LPA Attorney Segal-George, Community Development Director Dan Folke, Planning & Zoning Specialist Chris DeManche, Jerry Murphy of Lee County Zoning Department.
II. INVOCATION AND PLEDGE OF ALLEGIANCE: All those present assembled and recited the Pledge of Allegiance. The invocation was given by Ms. Simpson.
At this time Harold Huber received the floor to honor the volunteers who have served, some since the time of incorporation and before. He expressed disappointment in having the public refer to the volunteers as “the meanest spirited people in the Town” and also expressed the hope that goals will be achieved in the future with the help of the volunteers. He said that there are over 100 volunteers who are serving in good faith and would like to continue in a positive manner.
The roll call was taken at this time. Ms. Cereceda was not present at roll call but was expected to arrive late.
III. APPROVAL OF MINUTES, MARCH 26, 2004 & MARCH 23, 2004: Ms. Simpson announced that there had been a request to hold approval of the minutes until the end of the meeting, which was approved by consensus.
MOTION: Motion was made by Ms. Cereceda to approve the minutes of March 16 as distributed. Motion was seconded by Jane Plummer.
DISCUSSION: Ms. Simpson had a concern on Page 4, Item 4 regarding the Newton Beach Cottage in which the minutes reflect no vote. It was agreed that there was a motion and a vote on the historic designation at this meeting. (Transcriber’s note: My copy includes a motion by Ms. Hester, a second by Ms. Plummer, and a unanimous approval on Agenda Item 4.) Mr. Folke pointed out that the resolution has already been approved and recorded.
VOTE: Motion was passed by unanimous vote.
MOTION: Motion was made by Ms. Plummer and seconded by Ms. Titus to approve the minutes of March 23, 2004.
DISCUSSION: Mr. Huber said that he does not appear in these minutes. He made reference to discussions concerning the signs. He felt that the LPA had done a poor job in its deliberations but noted that none of his discussion about the height and elevation of several signs appear in the minutes. It was pointed out that by Ms. Simpson that this was probably summarized. He voiced concerns about the amount of information presented. There was discussion with Mr. Murphy about sign deviations.
Ms. Simpson referred to the top of Page 2, subparagraph (6), where the word should have read “approved” instead of “approve.” On the same page, the applicant lives on the Island with his family and considers it his home, not “is home.”
VOTE: Motion to approve the minutes as corrected passed by unanimous vote.
IV. PUBLIC HEARINGS:
1. CONTINUED TO AN UNKNOWN DATE AT THE REQUEST OF THE APPLICANT – DCI2003-00034 Ecoventure Carousel, Ltd. In ref. to Carousel Inn RPD. A request to rezone 0.73 acres from Residential Multifamily and 0.96 acres from Commercial Resort to Residential Planned Development (RPD) to develop 24 multiple-family dwelling units in 2 multiple-story buildings with a deviation from the LDC pre-disaster buildback provision to allow 24 dwelling units and 88,000 +/- square feet; a deviation from the LDC building height limitations to allow building height not to exceed 67 feet above base flood elevation and 7 stories, and Special Exception to allow construction of a pool deck seaward of the Coastal Construction Control Line (CCCL) in the Environmentally Critical (EC) zoning district. The subject property is located at 6230 Estero Blvd.
Ms. Simpson read the caption of this case. Ms. Segal-George advised that Ms. Beverly Grady was present representing the applicant and wished to discuss with the LPA a date for the next hearing. There were also some members of the public present who would not be able to attend a future meeting and wished to give input; Ms. Segal-George advised that they would be permitted to do so, with the understanding that their comments will be recorded in the minutes of this meeting but will not become a part of the hearing record.
Beverly Myers Grady came forward representing the applicant and recalled that they had received a continuance on January 20, 2004 to today’s date. They would like to request a continuance to a specific date, having submitted a reapplication last Friday. After speaking with Dan Folke and Jerry Murphy, neither has had the opportunity to review it. The units have been reduced in number from 24 to 16, and the number of stories from 6 stories to 4 stories. They are requesting a hearing at the second meeting in May, which would be the 18th with the understanding that if Staff cannot prepare in that time frame, they would accept another continuance; however, they would like to have the hearing prior to the Summer break.
Mr. Folke advised that Staff is not recommending May 18th but rather June 8th at the LPA because he does not believe Staff will be ready for a hearing by May 18th. This will still allow the case to come before Council prior to the end of June and before the break.
MOTION: Motion was made by Harold Huber and seconded by Jane Plummer to hear the Carousel case on June 8th.
VOTE: Motion was approved by unanimous vote.
Members of the public were invited to come forward for public comment at this time.
John McGurk came forward as President and representative of Sunset Condominium Homeowners’ Association. With respect to the building height, he verified that the new height request is 4 stories over parking, and read a letter stating the group’s position in which they oppose any deviation to the current building height limitations, any special exception to allow a pool deck seaward of the CCCL, and the creation of sand dunes and planting of seagrass around the pool area. They also asked that the developer provide his working hours and plans to maintain a safe, neat work area during construction. He said that this letter had been FAXed to Jerry Murphy, and he provided a copy which Mr. Folke accepted for the record.
2. DCI200300087 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 buildback 4 multiple-family dwelling units with deviations from setback and driveway width requirements and to allow an increase in interior space. The subject property is located at 855 Lagoon Street.
Ms. Simpson read the case and opened the public hearing at this time.
Mike Rader came forward representing JKJ Developers, Inc., the owners of the property. He pointed out that the principals of JKJ Developers were present, and that of the 4 condominium units they propose to build, they would purchase and reside in 3 of them. Jim Stone, the architect, was also present and would also make a presentation. Mr. Rader described the location of the property and advised that the existing 4 units were built in 1958, and because of current codes and flood elevations are limited in scope of future improvements. He pointed out a portion of the Staff Report which indicates that this request is part of a larger development, and he clarified the portion pertaining to today’s hearing. He recalled prior cases that relate to the subject case as background information. He advised that 3,090.7 sq. ft. or an increase of 415 sq. ft. is being requested. Four deviations are also being requested: The driveway width, from 20 feet to 12, which he described as standard and not an issue; the two side setbacks; and the waterbody deviation. He disagreed with the Staff Report in that the setbacks being requested are not the result of an increase in building size, pointing out that in all cases the requested setbacks are equal to or greater than the existing building. He referenced the pre-disaster buildback provisions and emphasized that the requested building would be an improvement and would comply with all current codes with the exception of the setbacks. He described the new building as 2 stories over parking, a maximum of 25 feet in height, with a FAR of .69, both of which are within the Code. The required number of parking spaces are also provided. He objected to the use of the word “anathema” in the Staff Report. He referred to other cases in which applicants were requested to try again, which he felt indicated a willingness to approve deviations, and also referenced approval of the Whitecap Cottages. He reserved the opportunity to rebut Staff comments and introduced the architect.
It was asked how the building is used at present, and Mr. Rader explained that they are 4 rental units. It was then asked whether the new units would be rented, or treated differently from past usage. Mr. Rader again explained that 3 of the applicants plan to own units and use them but have also requested approval of short-term rentals, stressing that the intent is to change from purely rental units to owner-occupied.
Ms. Simpson advised that Jessica Titus and Anita Cereceda had arrived at the beginning of the presentation and have heard everything spoken on behalf of the applicant.
Tim Stone, the architect of record for the project and President of Archimetrics, Inc., came forward and explained that he has been a Florida and Lee County resident for over 25 years and has practiced architecture and planning in the area for that period. He also objected to what he described as misrepresentations and misinformation in the Staff Report, which he referenced by page and paragraph in making his refutations. Several members pointed out that their copy of the Staff Report was numbered differently and requested that he reference item numbers rather than page numbers. The existing property to the North is not a single family home, but rather a duplex, as coded in the Property Appraiser’s database. The property is not two residential buildings connected by a wooden deck, but is by all regulatory standards and building codes a single structure. The applicant is not requesting 5 deviations with respect to square footage, but is requesting 4 deviations from the setback to allow for construction of a code-compliant building and 1 deviation for the driveway width appropriate to the intensity of a
4-unit building. The applicant is not requesting an increase in interior square footage of the units by 710 sq. ft. but rather an increase by 416 sq. ft. as previously explained by Mr. Rader. He also refuted an implication by Staff that the applicant is requesting an increase in density by applying a provision of the LDR which he believes is intended to govern new development, not pre-disaster buildback of existing units. He pointed out that the applicant presently owns 4 lawfully existing non-conforming units and wishes to replace them with 4 fully compliant fully conforming units, with no increase in density. Mr. Stone also objected to several “beliefs” as stated in the Staff Report with respect to setbacks and density and stated that he is prepared to provide a letter of certification if necessary to the effect that a fully code-compliant building cannot be reconstructed on the site without deviations. A statement in the Staff Report with respect to deviations being requested for the purpose of increasing interior square footage was described as patently untrue. He repeated the statement that after all required code compliance building components, including exit stairs and exit corridors, have been subtracted from 4,250 sq. ft. of allowable area, there is insufficient space remaining to build back the interior and exterior floor areas to the same size as existing. He said he has had discussions with Staff over the amount of square footage, which Staff believes is approximately 6,000 sq. ft. Mr. Stone advised that in order to refute this, he requested the original surveyor to recompute the available area within the required setbacks under the LPD, and he read and entered into the record a letter to the effect that the area was 2,125.28 sq. ft. He pointed out that this area would be doubled because of the second story. Mr. Stone also objected to a statement by Staff that all adjacent properties appear to be developed at lower densities. He also objected to Staff’s statement that other cases brought before the LPA are similar to this request. He also objected to the use of the word “anathema,” as well as other language in the Staff Report, which he felt indicated that Staff was negatively predisposed to this project. An existing tiki hut, which Mr. Stone stated was permitted by appropriate regulatory agencies, was also referenced, and he stated the opinion that this is a legal nonconforming structure; therefore, he contended that Staff’s recommendation that it be removed is based on Staff’s preference and without legal foundation. He also said that since Staff’s recommendations appear to be based on what he believes to be misinformation, incomplete and inadequate comparative data, and predetermined emotional biases rather than facts and objectivity, he feels that Staff’s conclusions are at the very least flawed. He again stressed that there is no reason for requesting the deviations other than to bring the building into code compliance. The request does include an increase in the interior floor area of each of the units by 104 sq. ft. In summary, he expressed the opinion that the applicant’s project is consistent with the spirit and intent of the Fort Myers Beach land development regulations, and will be an asset to the community.
With an apology for the lengthy presentation, he requested and received permission to introduce the graphic boards. He proceeded to present these exhibits and to explain each one, requesting guidance from the LPA regarding amount of detail they would like to hear. He was asked to read the dimensions from the graphic, which he did, clarifying that Sanibel Survey had corrected him by one square foot, making 2,125 and 4,250 the correct dimensions. He cautioned that the calculations must take into consideration exterior walls. So interior area will be less than Mr. Murphy’s reference to 3,200 sq. ft. Porch area will be 470 sq. ft., which is smaller than the approximately 850 sq. ft. existing, and exit stairways on both floors will be 840 sq. ft. with 2 exit corridor areas of 515 sq. ft. These numbers total 5,120 sq. ft., or 870 +/- sq. ft. in excess of what can be generated. He showed a rendering of the proposed building design and explained the architectural style of the building as island style or plantation style, pointing out that his companies have been responsible for South Seas Plantation, Casa Ybel Resort on Sanibel, Marco Island Eagles’ Nest, and several other projects which are similar in character.
Ms. Smith asked for clarification on the number of owner occupied units. It was verified that three units will be owner occupied, and one will not be owner occupied. Of the 3 owner occupied units, it is their intention to live there on a full-time basis, with the flexibility to rent for one or two weeks while they are away on vacation. She also asked for clarification of a sentence in the Staff Report which had been described as “patently untrue,” with respect to existing density of adjacent properties. Mr. Stone explained that the property to the north is a duplex, as are the properties across the street, and he also explained how they believe Staff’s calculations were incorrect.
Jessica Titus asked for further clarification of the setbacks, which Mr. Stone provided using his display boards.
Ms. Plummer also asked for clarification of the dimensions. Mr. Stone repeated his point that the building cannot be reconstructed code-compliant without deviations, whether the same or greater square footage.
Jerry Murphy of Lee County came forward to present the Staff Report. He offered to make adjustments for numbers that may not be exactly accurate on the part of the applicant. He said that Staff believes that this request does resemble other buildback cases that have been heard recently in that the applicant is asking to keep everything they have, and more. He does not believe it was the intent of the buildback provisions to seek a building larger than existing.
Mr. Zuba asked whether approval of the deviations with conditions had been discussed with the applicant, and he was advised that it had not been specifically discussed. Mr. Murphy was also asked about the single family definition of the property and adjacent properties, and he replied that the Property Appraiser’s records that he saw show the property as single family, although he did not research this in depth.
Ms. Plummer asked a question about an increase in size to allow for handicap compliant bathrooms with reference to a previous case. Dan Folke explained that the reference was to the Captiva/Useppa buildback, in which there had been several methods of calculations used.
Ms. Smith asked Mr. Murphy whether in his opinion the existing building had been built all at one time, and he replied that he cannot verify this.
Ms. Cereceda cautioned Mr. Stone to limit future presentations to facts without insinuations concerning Staff. She recalled that there have been many discussions about the subject neighborhood and pointed out that the proposed structure would appear drastically different in character from those surrounding it, wondering whether such a precedent was the intent and how the rest of the street would be affected. Mr. Murphy replied that overbuilding has been the problem in the past. She disagreed with Staff that this case has similarity to others referenced.
Ms. Segal-George pointed out that the LPA can choose to wait and see what happens with the Comprehensive Plan amendment with regard to Lagoon Street.
Ms. Smith asked for an explanation of the difference between non-conforming and illegal. Mr. Murphy explained that illegal was done without permits. Non-conforming means either the law has changed since it was built legally, or it was built before there was law. Zoning came to Fort Myers Beach in 1962, so what was built in 1958 had no setback requirements at that time.
Ms. Segal-George asked to be excused to attend a meeting downtown, and she was given permission to leave.
Mr. Huber observed that he would like to see the project move forward and that the setbacks are less than existing.
Ms. Plummer agreed and pointed to a display indicating what is now required by code, saying she did not feel that stairways and walkways affect intensity or density.
Mr. Murphy was asked what he would suggest be done to the plan to make it more compliant with respect to setback. He replied that he has not been convinced in all the conversations that the porch in the rear, while desirable, is necessary. He expressed the most concern with the rear setback. The porch in question is 8 feet deep.
Ms. Titus observed that in previous cases there was a definite improvement in the situation, which she did not feel was the case in this application, other than replacing an older building with a newer one. She said that Mr. Murphy’s comment that this proposal is inconsistent with the Comp Plan would influence her vote.
Ms. Plummer commented that any variance before the LPA will be by definition a variance from what is consistent with the Comp Plan. She was advised that a pre-disaster buildback is entirely different. Mr. Murphy interjected that there can be variances from the Land Development Code, but not the Comp Plan, which is illegal in Florida. He acknowledged that the applicant has increased the side setbacks from what is existing. They are still not conforming, but are an improvement. Staff has also added a condition that applicant would provide a transit stop at the intersection of Lagoon and Estero, which has been discussed with the applicant. However, he reiterated the Staff position that when an applicant asks to maintain non-conforming density and to increase interior square footage, this is not consistent with the Comp Plan and the buildback policy. It was verified that he maintains this position despite any comments heard today.
Ms. Mulholland asked what the objection had been to the tiki hut. Mr. Murphy replied that without doing extensive research, Environmental Science had determined that the tiki hut was constructed via a roof permit, which was not appropriate and would not be allowed in that particular location.
Ms. Plummer had another question concerning the square footage and said she did not see how density and intensity would be affected. Ms. Cereceda attempted to explain.
At this time Ms. Simpson opened the meeting for public comment.
Jon Guiles, who resides at 1511 Estero Blvd., Unit #508, the Tiki West Condominium, came forward and advised that he is one of the “J’s” in JKJ Development, the other two being brothers Jim Purtell and Kevin Purtell. He explained the background of the corporation and how they arrived in Florida from Oshkosh, WI. He subsequently purchased a property of his own and has become a Florida resident, explaining that he currently spends 7 or 8 months here and does not rent his unit out. Jim has also become a Florida resident; Kevin still has children in school and remains a WI resident. The subject property was purchased with the goal of providing a desirable residence for everyone. Mr. Guiles also explained that while the requested units are relatively small for permanent residency, his experience has been that he spends a great deal of time on the patio, which is why they are requesting a porch in the new project. He also advised that they are taxed as a 4-unit building, and that the office of the corporation is here. They are not a large developer.
Brady Paine, son of Fred Paine, came forward and advised that his father owns 819 Lagoon, 823 Lagoon, 821 Estero, and 815 Estero Blvd. He stated that they fully support the
4-plex at 855 Lagoon and feel that it would be a good addition to the neighborhood.
Barb Artrip came forward on behalf of her husband, Charles and herself as owners of the property north of the subject, the duplex at 849-851 and called attention to the surrounding properties. They also own 850 Lagoon St., making 2 adjacent properties. She emphasized that the principals are local neighbors. Despite an increase in height due to parking under the building, she advised that she and her husband have no objections to the applicant’s request, pointing out the difficulties in upkeep of older properties on the Island.
Kevin Purtell, one of the owners of the subject property, came forward and spoke as a visitor and hopeful future Beach resident of the view from the bridge which he said they hope to enhance.
Pat Purtell, a part owner of 831 Estero, came forward to say they are fully in support of the application, which he has reviewed in the last week.
Jim Purtell, one of the JKJ principals and a resident of 848 Lagoon St., came forward and advised that he also owns 846 Lagoon St. with another partner, and on behalf of both 846 and 848 he spoke in support of the project.
Jack Bright of 146 Delmar came forward and was sworn. He pointed out that the applicants had initially purchased property on Delmar and had improved it considerably, eventually purchasing another property on Delmar and improving it, resulting in what he described as a renaissance on the street. He also commented on the potential that a buildback be smaller than the original due to code requirements.
Public comment was closed at this time.
Mike Rader came forward again representing the applicant. He observed that there did not appear to be a clear idea of what the pre-disaster buildback is supposed to be used for. He also spoke about setbacks and compared County requirements with the Town’s. He referenced 37.38(d) with respect to setbacks. Mr. Rader also commented on the character of Lagoon St., pointing out that the applicant has obtained signatures from all the residents of Lagoon St. He also referred to Staff’s conditions for approval, which include no deck and no increase in interior space.
Ms. Cereceda asked specific questions about Staff conditions. Mr. Rader replied that there was no objection to prohibiting future conversion to hotel/motel.
Ms. Plummer asked who owns the land on which the requested bus stop would be located, and it was determined that this would be on Town right of way, in front of the 7-11.
Ms. Simpson addressed the ownership by one of the principals, who explained that it would be his intention to move from Tiki West to the subject property.
It was pointed out that the tiki hut was on the property when the applicant purchased it.
Mr. Murphy responded to Mr. Rader’s rebuttal. He pointed out that the Land Development Code at the Beach is different from the County’s, which is an intentional distinction. He explained the mechanisms of the pertinent Code and Comp Plan sections, refuting Mr. Rader’s reference to 37.38(d) as not applicable to a buildback request. He suggested that if the LPA wishes to approve such a project, the appropriate method would be to modify the Comp Plan, and then provide a mechanism to approve such an exception.
It was pointed out by Mr. Huber that the subject property is an irregular, pie-shaped lot. He asked about the conditions included in the Staff Report. He expressed the opinion that requiring one property owner to build a bus stop on property not his own is inappropriate, and if he were to make a motion he would eliminate that condition. Mr. Murphy identified this as Condition #4. With respect to the tiki hut, he has not personally inspected the property and is not prepared to include that as a condition. He would also remove the Condition #3 that the tiki hut be removed.
Ms. Cereceda said she would be inclined to table the request and give the applicant the same consideration as the Carousel to amend their application, also referencing the Peter Lisich case which was not sent back to the L PA by Council. Mr. Murphy recommended that in such event the applicant be given input from the LPA exactly wherein they differ from Staff so as to be better prepared to return with a modification if they decide to do so.
Ms. Hester agreed and asked whether the applicant were interested in working with Staff and modifying their plan. She also agreed that the request is in fact inconsistent with the Comp Plan, leaving the LPA no choice but to deny.
Ms. Mulholland agreed and added that she would feel compelled to deny at the present time.
Ms. Plummer pointed out that Mr. Murphy had presented conditions in the event of approval, indicating that approval was an option.
Mr. Zuba observed that there are different interpretations of the pre-disaster buildback provisions, and he agrees that the request is inconsistent with the Comp Plan.
Ms. Hester disagreed with Ms. Plummer’s interpretation, and asked Mr. Murphy why he had presented conditions for approval. He replied that he did so because reasonable minds can differ. He said that of all the buildback cases that he has seen, this is the most modest, and he was preparing for the eventuality that the LPA might want to approve it. He explained the reasons for the conditions which he included.
Mr. Folke suggested confirming with the applicant that they are willing to come back with modifications, stressing that he agrees that the applicant will then need to be informed of the areas they need to revisit. Ms. Simpson asked if the applicant would agree to a continuance, and Mr. Rader took up the issue of interpretation and disagreement with Mr. Murphy on the referenced section of the Code. Ms. Cereceda emphasized that suggesting continuance was a courtesy, and Mr. Rader replied that the applicant would accept a continuance. Mr. Folke advised that he has made note of the item in dispute for further clarification, which will include discussions with Bill Spikowski, who wrote the Code.
Ms. Smith observed that it appears after 2 ½ hours the LPA is not considering this relatively minor and is willing to work with the applicant. She pointed out that the goal is to work toward a satisfactory conclusion for all.
MOTION: Ms. Cereceda made a motion to continue this case; seconded by Jodi Hester.
DISCUSSION: It was asked whether the continuance should be to a date uncertain. After discussion, the motion was amended by Ms. Cereceda to continue to June 8th. It was agreed that every effort would be made to bring this before Council before Summer break. Mr. Huber expressed the opinion that the next hearing would not take as long.
VOTE: Motion was passed by unanimous vote.
There was discussion about the “glitch ordinance” and when it will be presented. Ms. Plummer pointed out that there may be new LPA members when the applicant returns.
The meeting returned to the minutes at this time.
V. LPA MEMBER ITEMS AND REPORTS:
Jessica Titus had a comment concerning a clown costume.
Jodi Hester referred to the upcoming election and said that if she is elected and no longer serves on the LPA, she has enjoyed working with everyone. The first meeting of the new Council will be next Monday.
Roxie Smith also observed that she was involved in the LPA selection. She also suggested having the conversation to clarify Mr. Rader’s questions. Mr. Folke advised that the EAR will begin over the next year, at which time the LPA will have the opportunity to make Comp Plan amendments if it deems necessary.
Jane Plummer welcomed Jack back to the Bay Oaks Advisory Board and asked if there were an excused absence from Jeorg Wiebe.
Anita Cereceda recalled a conversation with Ms. Segal-George about the current election. She reflected on everyone who has been involved in the Town and described it as an awesome adventure.
Hank Zuba wished Ms. Hester good luck in the election.
Dan Folke advised that he is not sure the LPA appointments will be on Monday’s Council agenda.
VI. PUBLIC COMMENT: None.
VIII. ADJOURN: Meeting was adjourned at 2:55 P.M.
Respectfully submitted,
Patricia L. Middlekauff
Transcribing Secretary