I CALL TO ORDER

The meeting was opened on Monday, April 8, 1996, at 6:35 P.M. by Anita T. Cereceda, Mayor.

Present at the meeting were: Anita T. Cereceda, Mayor and Council Member; Ted Fizsimons, Vice Mayor and Council Member; Council Members Ray Murphy and Garr Reynolds; Marsha Segal-George, Town Manager, and Attorney Richard Roosa.

Absent from the meeting: Ray Isler, who is on vacation.

II PLEDGE OF ALLEGIANCE AND INVOCATION

All assembled recited the Pledge of Allegiance to the flag and Councilman Garr Reynolds gave the invocation.

III PUBLIC COMMENTS AND INQUIRIES

A. JACK HENRIKSEN

Addressing the issue of zoning lawsuits filed by the Civic Association, Mr. Henriksen, a board member of the Civic Association, said the suits related to zoning requests approved by Lee County after the Fort Myers Beach incorporation took place but just before the town council officially took over. The Civic Association and the voters felt strongly that these decisions should go to the Fort Myers Beach council no matter what the outcome and the suits, therefore, were filed because it was thought that this was the only possible way that the town council could rule on those cases. He does not feel that the town council has been given the opportunity to review these cases. He takes issue with the fact that a 9/10 acre parcel now commercially zoned is surrounded on three sides by residential zoning, the fourth side being ocean frontage. This parcel, which is occupied by AVACO, has a density of 28 units and is much higher than the surrounding property. Commercial zoning brings more traffic and infrastructure problems for water and sewer, etc. It means entertainment, noise, music, planned beach activities. This, he feels, is a classic example of commercial intrusion of residential property. The Civic Association and the town council should listen to the silent majority and not just one individual with his own motivations He urges the council to please take control of land use.

B. FLIP HARBY

Mr. Harby said that during incorporation and during the discussion of revenues coming to the town, it was mentioned that we could take the All Hazards stacks and place that into the general fund. This would be at the council's option. He advised the council not to take that option but to stay in the fund with the county. He feels that the All Hazards program seems to provide disproportionate benefits to coastal areas despite a lower rate of taxation across the county. Therefore, it would seem to be in the interest of the town of Fort Myers Beach to support the continued existence of the county's program and expansion rather than choosing not to participate.

C. JOHN R. EASTER

Mr. Easter advised that he supported everything said by John Henriksen. He is against the AVACO development and would also point out that only recently we have added to the traffic problem at Times Square on the island by adding approximately 500 cars a day for the Sea Kruz.

D. JOHN GIBBS

Advising that he lived in Gateway Villas, Mr. Gibbs stated that he is next to the project AVACO. Mr. Gibbs distributed to the council a copy of correspondence just sent to the Environmental Protection in Tallahassee where they are presently reviewing the project. The 46 owners of the property where Mr. Gibbs lives are against the project being built next to them.

IV PRESENTATION BY JOHN WILSON, DIRECTOR OF

THE DIVISION FOR PUBLIC SAFETY, LEE COUNTY

A. Statewide Mutual Aid Agreement for

Catastrophic Disaster Response and Recovery.

They would like for the town to consider signing this agreement, Mr. Wilson advised, basically because it provides an avenue to tap the resources of other communities within the state of Florida should it have to have additional resources beyond what they can offer at the county in getting back on our feet after a hurricane. This would include additional back hoes, bulldozers, dump trucks. This agreement has been tested through Hurricane Andrew and other storms that have passed since then, including Hurricane Opal this last October. The agreement reflects the lessons learned from those storms.

Answering questions posed by the council, Mr. Wilson advised that the fund would cover a number of things on a cost-sharing basis. Should a disaster be declared by the president, up to 75% of those costs would be borne by the state or federal government and the remaining 25% would be the local share. Anyone who helps them recover would be paid back by the state through the county. The only contribution by the town would be the cost-sharing match that is required of any federal or state disaster relief aid in the event that the president declares our community a disaster. The town does not contribute to the fund on an ongoing basis. The town, because it is newly formed, is not contributing to the fund at this point. Prior to incorporation, Fort Myers Beach was covered under the county's umbrella and will be until October 1 when a new fiscal year starts. Since being incorporated, the town can choose not to participate or it can sign a mutual aid agreement, which basically puts it in a contract with other communities that sign the same agreement. If they need help from us, they can call upon us and we have the right of first refusal. If we call upon them, then they have a right of first refusal. Sanibel is going to be signing the latest agreement in the near future. The cities of Fort Myers and Cape Coral have also been contacted to sign. The mutual aid agreement itself does not cost a penny in terms of administration. It comes into effect after a storm when you need additional resources to help get your community back on its feet. It provides an auditing mechanism, if you will, to get those costs associated with that help reimbursed through established state and federal disaster relief funds.

B. Lee County Recovery Ordinance

Mr. Wilson would also like for the town to consider coming under the umbrella of the county's post disaster ordinance 95-14. This has been half a decade in the making and involves among other things a guide for recovering after a storm. It identifies priorities and what our economic redevelopment policies would be. It also establishes a build-back policy for repairing, restoring, or replacing property that has been damaged beyond certain percentage points. (Any structure that is damaged more than 50% must be built to current codes and standards under the National Flood Insurance program.) This build-back policy was framed around the situation here in the town of Fort Myers Beach where some of the older property may not meet building code requirements for rebuilding. This ordinance attempts to make sure that the least amount of hardship is placed upon the homeowner in that position. There are a number of other items in the ordinance, including the formation of a recovery task force, the makeup of that task force, and a disaster advisory council, which is a board-appointed body that basically advises the emergency management program on issues related to response and recovery. The other cities are encouraged to follow the provisions of the ordinance, but they are not required to.

Ted Fitzsimons noted that our name is significantly lacking from the list of towns, cities and municipalities in the disaster advisory council. Mr. Wilson said his point is well taken and they will certainly have no problem in adding a representative from the town of Fort Myers Beach on that council, which will bring its membership up to 33. After Fort Myers Beach joins them, they plan to enact a post disaster recovery task force composed of a smaller body of people than the council. The core task force would be a group of about nine officials that would recommend policy to the board.

In terms of the economic redevelopment policy, tourist-related items have priority along with reestablishing the banking and finance community. The tourist development council also gets involved and they have developed quite an extensive recovery plan of their own to reduce the effects of not only a major hit, but a near miss as well.

If the town wishes to continue participating in the program, it can opt in through an interlocal agreement. We can establish how the moneys are going to be distributed and whatever other safeguards the town wishes to put in there to assure wise use of the funds. A major plus in staying in the program is establishing an emergency contingency fund, which would help cover some of the 25% cost-sharing match. This money can also be used to acquire damaged property based upon criteria set forth in the post disaster ordinance.

Mr. Wilson gave the current millage rates for the different home values after homestead exemption is taken out. These are given in the packets he distributed. The packets also contain the actual resolution that created the All Hazards District and an amendment to that resolution that defines how a municipality or town can participate in the MSTU.

There is about $400,000 in the contingency fund now that was carried over from last year's budget. They would like to get the fund back up to pre-Bonita Springs flooding levels. Once the money is in the contingency fund, the only way it can be used is either through a state or local emergency being declared by the board or the president of the United States. The city of Sanibel has their own contingency fund.

V RECOMMENDED APPROVAL OF

STATEWIDE MUTUAL AID AGREEMENT

Motion: Made by Ray Murphy and seconded by Ted Fitzsimons to join the Statewide Mutual Aid Agreement. Passed unanimously.

The All Hazards protection will be discussed at a later date.

VI PRESENTATION ON RESEARCH DEVELOPED BY BEAN, WHITAKER, LUTZ & BARNES RELATING TO A LISTING OF ACTIVE PROJECT APPROVALS LOCATED WITH THE TOWN'S BOUNDARIES.

Ken Griffith spoke on behalf of Bean, Whitaker, Lutz & Barnes. He distributed a list of active Lee County development orders for the Town of Fort Myers Beach as of March 1996. He advised that it had been difficult for them to distinguish between the structures that have been built and those not built. Some probably could be eliminated from the list. Mr. Whitaker explained to the council that the property on the list are identified by strap numbers which have changed since Fort Myers Beach incorporated. The project names are the ones on file and may or may not have changed. The third column on the list is the approval date for the development order. The fourth column, approval type, tells what the project was approved for as closely as possible; this information may go through several amendments. The sixth column shows development numbers, which have been taken from county records. Following the numbers are a sequence of letters. The letters DO indicate a typical county development order; L stands for a limited development order and represents a project that perhaps does not have the same intensity a brand new project would have; T is a transmittal letter for very minor things, such as sidewalks or handicap ramps. The last column shows the status of the projects, which may or may not be accurate.

Mr. Whitaker pointed out that he wasn't here tonight to speak about the merits of individual projects. Answering questions put to him, he did explain that the first two numbers of the DO numbers represented the year the development order was issued and the next two numbers referred to the month of issuance. Also explained was that "expires" refers to when the development order will expire.

They did not provide the concurrency requirement for each project. Although some of the development orders may be good for five years or six years, or three years, the concurrency certificates are issued for a period of three years, at which time you have to come back and review it.

There are standards you have to meet for a development order to continue beyond its expiration date to remain active. A certain amount of construction has to take place over a certain period of time.

VII COUNCIL MEMBER ITEMS AND REPORTS

A. TED FITZSIMONS

1. Councilman Fitzsimons stated that he will be meeting with the code enforcement people at the town hall on Wednesday. Any council member can advise him if there are items they would like for him to discuss at the meeting.

2. He has gotten a request, which he asked to be put in a letter, regarding a cross walk recommendation at the Chapel By the Sea.

3. It has been brought to his attention that with the diminishment of mangrove protection within the Lee County Comprehensive Plan and Lee County Land Development Regulations that we give prompt consideration to doing what we can within our jurisdiction to reestablish the strength that mangroves did have, or establish new strength that mangrove protection should have.

4. He has heard from people who are not pleased with the roadside at the bottom of the bridge on our side -- the land adjacent to the parking area there and where the county put in its new palm trees. Nothing has been done for quite a while. There are organizations within this community that might be willing to donate some time and effort to do something about it. If not, we should consider spending a few dollars to have someone go down and clean them up and perhaps put in some plants. The county has cleaned it up it the past when advised of a poor condition. The mayor concurred with

Mr. Fitzsimons that it looks just awful at that spot and there is a lot of sand in the gutters. According to Marsha Segal-George, this is state property. The easiest way to handle the problem, though, is for the county to take responsibility for it. She will contact the Department of Transportation to see if they would be willing to take care of it.

5. The AVACO, Pink Shell, and Matanzas Seafarer cases were brought through the legal system simply for the purpose of trying to get them in front of this council. They are significant land use cases, some more than others. They challenge the Comp Plan as it applies to this town and as it applied to the county before we were a town. They are all rezoning to commercial zoning. Lee County approved those rezonings. Mr. Roosa advised that there were two issues here, both involving jurisdiction. Jurisdiction is the legal authority to act and if you act without jurisdiction, you act at your own peril. We would want to be sure that the town council has jurisdiction. Mr. Roosa explained the issues in the cases and also the actions. He stated that his primary role is to protect the town against taking unlawful action and to protect the town council in particular. He would not want to be involved in any action that placed the town in jeopardy of a substantial judgment nor the town council in jeopardy individually or collectively. Before the town council acted on these cases, Mr. Roosa would bring an order from the judge giving them the authority. Mr. Roosa advised he has already worked on four of the cases because the lawyers for the plaintiffs had filed motions. AVACO, Pink Shell, Matanzas Seafarers are all one case. Some of the cases Mr. Roosa has determined are appellate actions, certiorari petitions which cannot come before the town council because the council has no authority in such proceedings. They have to go to the courts as they are judicial actions. In some of the cases it may appear that we are an interested party even though legally we are not.

B. GARR REYNOLDS

Mr. Reynolds distributed copies of his letter to George Crawford, Director of the Lee County Department of Transportation, dated April 8, 1996. The letter refers to needed street maintenance and five problem areas are listed. The letter was handed to Mr. Crawford at the meeting he had attended with Marsha Segal-George this morning. The $247,000 in their fund could be used to pay for the repairs. He urged the public in attendance to advise the town hall or himself directly of any other problems that needed attention. Mrs. Segal-George advised that Mr. Crawford had told them they needed to spend the fund money before September and had also said that if the department's crews were going to be too busy during the rainy season, the town could get a contractor to do the work at the priority of the council. She will put together a memorandum for the council embodying everything that was discussed at the meeting, including road maintenance, data on inventory of roads that they may have, Estero Boulevard from the bridge going north and the issue on the bridge going south, right-of-way and what the county will or won't do, the state section they didn't know about. With regard to the $247,000, it was pretty much the council's call project-wise and how it wishes to spend the money.

With regards to the gas tax allocation, according to Mrs. Segal-George, the DOT is going to oppose Fort Myers Beach getting the same allocation as Sanibel, but the decision is up to the board of county commissioners.

Mr. Reynolds also brought up parking down at Bowditch Point that had been mentioned in the newspaper. We should let the commissioners know that that we support at least 100 parking spaces in this area.

C. RAY MURPHY

Mr. Murphy said that the Easter Egg Hunt was a big success and exceeded the expected crowd beyond their wildest dreams. About 400 kids attended. This is the sort of thing that builds up your town spirit and pride, Mr. Murphy stated, and he thinks there should more of such affairs.

D. MAYOR ANITA CERECEDA

Her only item, the mayor said, is the maintenance of Estero Boulevard, primarily in the Times Square area. She has told Ted Fitzsimons that she thinks the council needs to sit down with the sheriff as soon as possible and discuss what exactly they define as a core level of service. She related how a boy playing a guitar in the area drew a crowd and how about seven sheriff's cars drove up, dispersed the crowd, and put the boy in handcuffs. The sheriffs created a traffic problem by blocking trolley access as well as car access into the area. The mayor felt that the sheriffs' actions were excessive. She also felt that the kids were made to feel that even when they weren't doing anything wrong, they got into trouble. The sheriffs need to help them build a community instead of creating more divisiveness, especially with the young people. She hopes that the council will make every effort to meet with the sheriffs department as soon as possible and discuss things like that, because the air of panic and terror created by the sheriffs department has been going on for years.

Ted Fitzsimons expressed the opinion that perhaps the sheriff was trying to prevent a gang riot from both a business point of view and from a residential point of view, because that is something we don't need publicity-wise. If we have to tolerate one or the other, it was perhaps better to tolerate the overabundance of the sheriffs than the potential of something adverse going on. The mayor, however, would prefer the sheriffs to act more like neighborhood cops who know everyone in the community. They should make every effort not to alienate the kids or make them rebel against authority.

VIII TOWN MANAGER'S ITEMS AND REPORTS

Mrs. Segal-George handed out copies of logo samples that have been used by Fort Myers Beach and asked the council to consider which one they preferred to put on their stationery. They could give their decision by next week.

The first LPA meeting will be held tomorrow at 2:00 P.M. Issues to be resolved are who the lawyer will be at the meeting and the selection of consultants to work with the LPA. One consultant should be a planner, another should be a traffic engineer, another a vision consultant, someone who can take a big picture look at the island. A fourth possibility would be a consultant who would give economic projections. Marsha asked if anyone on the council would also like to be involved and Ray Murphy and Anita Cereceda both said they would. If acceptable to everyone, Marsha said she would like to start with the vision, have the council and the LPA sit with someone who can give them a broad perspective of the island's needs. Tomorrow the LPA will have an organization meeting, elect a chair, and they will be given a packet of whatever the council has prepared up to date for them to consider. There will be some discussion of the sunshine law and some of the rules the LPA will have to operate under.

Thursday night there will be a workshop regarding where the council wants the LPA to go.

It was questioned whether the LPA would need an attorney at all meetings. Mr. Roosa advised the LPA definitely did need an attorney. The attorney would not have to attend every meeting but would have to attend every public hearing to give advice and to monitor the meeting.

Garr Reynolds questioned the need for increasing the salary of the town manager if she also served as attorney for the LPA. Mr. Roosa pointed out that since legal training was not a requirement for a town manager, that the town manager did deserve extra compensation when acting in the capacity of an attorney as well. There is a lot of responsibility that goes with this duty. It was decided to make a motion to employ Mrs. Segal-George as an attorney for the LPA. When Mr. Reynolds questioned if this was in order since it wasn't on tonight's agenda, Mr. Roosa advised that this is an emergency situation since the LPA will be meeting tomorrow and also that the matter had been brought before the council previously. It is also included in the employment agreement that had been discussed at their last meeting.

Motion: Made by Ray Murphy and seconded by Ted Fitzsimons that Marsha Segal-George be employed as attorney to the LPA. Passed with three votes. Garr Reynolds voted no.

Mr. Reynolds said he is voting against the motion because the public has not had the opportunity to give its input on the matter of increasing the town manager's salary.

Mrs. Segal-George stated that it is her understanding there is a proposal circulating with the board of county commissioners on the CRA. It kind of ties the CRA project to the gas tax allocation in the sense that the town has asked for the same allocation as Sanibel, which is worth a little over one million dollars. If based on population, the town would get somewhere between $500,000-$700,000. There are considerable extra dollars that are on the table with regards to that proposal on a yearly basis for the town. Also, when we talk about the numbers that are available for the CRA, we are talking about the money that is in the Estero Island project, plus the $300,000 of impact fees that would then be added to it for this year. The proposal would go something on the order of the county would do the CRA project, but the south end of the project would be dropped out, which would be sidewalks. We would then pursue doing that project and extending it with the gas tax money. That would leave the Times Square portion of the CRA project intact and sufficient moneys for them to complete that project including undergrounding and utilities. The bids that the county currently have will expire at the end of this month. The most critical bid is the FP&L bid with regards to undergrounding and utilities. Marsha wished to know if this was something she could continue to proceed with and see if an agreement could be reached. We are kind of at a stalemate with regards to the CRA right now. The resolution was passed. From here on out the county is basically saying it is our move and we're basically saying it is their move. If we can't come to some kind of resolution, then we're looking at a legal fight. The resolution passed by the council said basically to the county that this is our CRA by statute and we're a town now and we don't think you can do anything to our CRA and we don't think you can terminate it and we don't think you can stop collecting the TIF. We know it's an issue of first impression in Florida, meaning nobody has dealt with this exact issue before. It is a brand new issue as far as what is going to happen and how anyone is would react to it. If we go to court, would part of the TIF still come out of the county's share? The matter comes in front of the board on Wednesday. Mr. Reynolds would like to see the project finished by the county with as much money as they have and as far as they can go. He doesn't like the idea of using our tax money for anything on the CRA project. He would like to see the county do, as they said they could do, extend the TIF funds to make up any shortfalls. As far as taking it like a loan and paying the county back with the gas tax money we have for operation, this is a negative to him. Mrs. Segal-George said the county is taking the position that the TIF is not going to continue. They were only willing to continue it if they could loan the money to us and we pay it back. The CRA never legally ended but the county is still collecting money that they say belongs to them. The county doesn't want to give us the same percentage as Sanibel, although we have the same population, and they don't want to budge on the CRA. We are going to face a drop dead date that's approaching very quickly with regards to the CRA and the county is going to have to decide whether you want to save those bids or you want to basically let it go and determine what is the next step the council is going to take.

IX TOWN ATTORNEY ITEMS

Mr. Roosa reminded the council he had passed out the gas tax along with the comments of the county attorney which indicate that there are changes that have to be made.

It is his belief that we should have in town hall a copy of each one of the platted subdivisions on the list that Ken Griffith provided them with. They are available through the Clerk of the Circuit Court at $5 a page. For 75 pages, it will cost them about $375.

Ordinance 96.08 satisfies the county attorney that the ordinances that Mr. Roosa said all along applied to the town of Fort Myers Beach do indeed apply. Between now and September 30, if the council chooses to have any of these ordinances in the town, they should be adopted. We should make it a matter of routine to start working on these ordinances in manageable portions by subject matter and start scheduling them for hearing. Mr. Roosa will have to start drafting them for the council's consideration for public hearing.

The Comp Plan and the Land Development Code are expressly identified in the charter and are good for three years. The Lee Plan as it existed on December 31 and the Land Use and Development Regulations as they existed on December 31 are good for three years. They have never been challenged. But it is these other ordinances that will need to be addressed sometime between now and September 30. We will be responsible for enforcing them when we adopt them.

Mr. Roosa also discussed Marsha Segal-George's contract and passed out copies of it to the council.

X PUBLIC COMMENTS AND INQUIRIES

A. JOHANNA CAMPBELL

Mrs. Campbell would like for the town council to consider having the Lee County staff people come down and brief them regarding any changes they are making to the town, such as 100 parking spaces at Bowditch Point and beach accesses.

The Sheriff's Department failed to inform the council that they were getting a new commander.

The gas tax is supposed to be stashed away for a rainy day when we will need it for all of our side streets that we have to maintain. Don't give away our nest egg to Lee County in order to get sidewalks at the south end. Remember that the residents on the south end did pay taxes too and that the TIF fund is their's and they have the right for those sidewalks and know that they shouldn't be built at the expense of our tax money.

The CRA board overwhelmingly said to do away with the undergrounding to save the sidewalks and I am sure if you ask the merchants in Times Square, they don't want the undergrounding either because they had also said that they did not want to have to pay a share of that undergrounding.

B. ROBERT FRENCH

Mr. French stated that we have a good sidewalk and why waste the money replacing it when the electric company may dig it up or the telephone company may dig it up the next week.

C. PETER LISICH

Mr. Lisich advised that he lived near Bowditch Point Park. There has been a lot of work done on the park and he doesn't understand why more will be done. We need to look at it and get the opinions of the people most affected by the park, he stated. The planning and zoning people can tell you what the impact of additional parking spaces will be. The entire park is blacked out for the majority of the summer when the local schools are off and the kids are off. They budgeted no additional resources for patrolling the park when they opened it. I suspect they will do the same when they add 100 spots. So you now have 100 dark spots blacked out for all the summer. I frankly don't want that next door to me and don't think you would want 100 blacked out parking spots next door to you. Let's not make the decision immediately but buy time, because I think the county is moving ahead on it. Let the LPA look at it. Let us make the decision as to what we want to do.

XI ADJOURNMENT

Mayor Anita T. Cereceda adjourned the meeting at 10:00 P.M.

Respectfully submitted,

Lorraine Calhoun

Recording Secretary