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Businesses/residents chew on COP expansion

September 12, 2012
By BOB PETCHER, , Fort Myers Beach Bulletin, Fort Myers Beach Observer

It's been only a week since an ordinance amendment for the expansion of alcohol sales and service was approved on Fort Myers Beach, but interest in applications for the permitted use and concern about the allowance into the Environmentally Critical Zoning District are surfacing.

While no applications have been turned in, Town Community Development Director Walter Fluegel reported some of the 18 affected beachfront establishments have inquired about the proper steps to serve alcohol on the sand. Nemo's on the Beach and Gulfshore Grill are two such establishments making inquiries about conditions once the application is filled out, such as surveys and site plans. Wicked Wings has also expressed interest and Co-owner Eric O'Gilvie has picked up an application. DiamondHead Beach Resort and Beach Pierside Grill have been in touch as well.

"We're just waiting for that first one to come in," said Fluegel.

On Sept. 4, the FMB Town Council adopted an ordinance amending Chapter 34 in the Town's Land Development Code. It allows certain businesses on Fort Myers Beach to expand their sales and service of alcohol onto the sand in an established area on the beachfront of their properties.

The amended ordinance allows the addition of revised regulations for the consumption on-premise permitted use into the Environmentally Critical Zoning District, the sandy beach that runs from the rear of a beachfront building towards the Gulf. Ropes and posts must be approved by the Department of Environmental Protection agency on an individual basis for regulating the expanded area and signage stating no alcohol beyond the area must be posted at each entrance.

"They (businesses) will most likely have to get a field permit from the Fort Myers office (of DEP)," said Fluegel. "It could be site specific issues that may make the business have to go through Tallahassee, but the reality is that we are going to make a condition upon our permit approval prior to putting ropes and posts out. We will approve the application contingent upon DEP approval."

The environmental issues have some residents up in arms about this approved action. Many expressed their concerns at the three public hearings before the Council adoption, and some are looking into an appeal process to overturn it.

"We would like Council to repeal their unfair decision," emailed Dave and Bonnie Ennis, residents from Primo Drive. "My wife and I went to the meeting in April to voice our opinion about COP, and there was standing room only. Our concerns fell on deaf ears, and I had the feeling their minds were already made up. The majority of people there were against the plan, while only a few business owners who bothered to show up were for it."

"How can five people take away the rights of the citizens of an entire island? Mayor Kiker and Town council took our rights away as citizens of the island and handed them to a Town staff who are not accountable to the citizens; they and their families will not be affected because they don't live on the island," said Tracey Gore. "(Town Attorney) Marilyn (Miller) said that there was no process for an appeal except to go to Town meeting and urge the Council to repeal. I am not a lawyer, but, according to the Florida Statutes, the fact that this amendment is not consistent with the comp(rehensive) plan, we residents, as affected people, can challenge this change within a 12-month period."

On Sept. 4, Miller did opine that the new ordinance is not appealable. Fleugel explained why.

"This is not a comp plan amendment, this is an ordinance amendment," said Fluegel. "Council already deemed it consistent to the comp plan, when they did the LPA interpretation a couple of years ago. That, I believe, closed the door on that issue."

Residents are still voicing their discontent with the issues surrounding COP expansion.

"This passage of COP is a direct slap in the face to all residents. We elected council and they have thrown the baby out with the bath water-literally," emailed Joe and Doris Grant. "Businesses have been given beachfront property without paying one penny for this property. COP does not benefit residents. We have asked many questions and Council does not believe they must reply. When was COP actually placed on the agenda and by whom, and who authorized the funding of taxpayer dollars in the amount of $14,000 for the study?"

An argument may be made that COP is not allowed in the recreation future land use.

"You can make that argument, except you have to explain how those 12 approvals out beyond that line in the sand were granted," said Fluegel. "Those become precedent."

An appeal would have to be filed through the Florida Department of Administrative Hearings.

The final hearing: Sept. 4

The Fort Myers Beach Town Council, who has conducted numerous workshops on the matter, assembled a task force to look into particulars of consumption on premises and held three hearings over 14 months. Last Tuesday, the members listened to more public input before settling on conditions to address many community concerns.

The revisions include: 1) establishing side setback standards for area of service; 2) establishing maximum area standards; 3) adding authoritative ability to require special exceptions; 4) prohibiting the dispensing of alcohol in glass or aluminum containers; 5) establishing signage requirement for area of service; and 6) establishing no additional COP outside the downtown zoning district.

"I can't think of a bigger subject matter that has received more public scrutiny, and I know that our community development department has done a prodigious job of research and analysis on this," said Town Manager Terry Stewart.

Public input issues involved poor timing due to the absence of out-of-town residents, marine and eco-tourism concerns with the expansion's hourly extension, reduction of beachfront passageway, sending the wrong message for a family environment and enforcement problems. Clarifications to the ordinance were added due to the concerns.

Regarding the latter, Stewart pointed out it is the responsibility of the business owner to police the expanded area and keep a patron from stepping out of the designated boundary. The sheriff's department holds responsibility to regulate beyond that scope.

Councilwoman Jo List believes the established domains will also help regulate other beachfront activities that include alcohol, coolers and public drunkenness.

"I think enforcement might be improved simply because the impact of the kind of behavior would be intolerable to the businesses," she said. "I think there would be more awareness on misbehavior."

Kiker addressed the "poor timing" issue.

"This is the third hearing. We discussed this during season. It just lasted that long," said Mayor Larry Kiker. 'There is absolutely no way we can pick a perfect time to have a discussion when everybody is here all the time. We have to conduct business 12 months out of the year."

Council members limited the hours of service and consumption for the area of the licensed area from 11 a.m. to one hour after sunset or 9 p.m. and no later to comply with sea turtle protection requirements contained in Chapter 14 of the Land Development Code.

The area of expansion into the EC zoning district is limited to no more than 33 percent of the permitted land area between the EC zoning district boundary and the mean high water line (up to a maximum of 100 feet). Establishments with 100 linear feet can extend out to a maximum area of 2,500 square feet. The erosion control line will be used in place of the mean high water line in areas of nourished beachfront with at least 50 feet of passageway between the Gulf and the water end of the permitted land area.

The passageway clause was added after public input concern.

In case of storm activity reducing the expansion area, an LCD provision protects that.

"There is a provision that allows the town manager to pull back that area of expansion during neutral tidal events or storms," said Town Community Development Director Walter Fluegel. "The manager can pull that back to protect the public's right of passage."

The approved COP expansion applies to 18 beachfront establishments -all of which can make application for the usage within a six-month time frame. The Lani Kai Beach Resort is the only one of the 18 validated with pre-existing use, according to the Town manager's records.

"(Lani Kai) is not compelled to come in and apply to be able to serve out on the sand area because they have been doing this for years," said Stewart. "We hope they do come in and apply with the process and follow our regulations. Our records indicate that any of the rest of the establishments must go through the process."

No establishments will receive administrative approval for COP expansion after March 4, 2013. Special exception -a long, detailed and somewhat expensive process, according to Stewart- may be an avenue for such application afterwards.



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