Responding to a department director's request, Town Manager Terry Stewart has turned to an outside attorney in regards to a rumor said to allege impropriety related to the Town's controversial elevated pool policy.
Concerned about false rumors he says are potentially damaging to his reputation and town government operations, Town Community Development Director Walter Fluegel has asked for and received a formal investigation he says is needed to maintain the public trust.
Fluegel stated in a Nov. 20 memorandum to Stewart and Town Attorney Marilyn Miller that the rumor he believes is circulating involves an allegation that he has been "bribed" by developer Joe Orlandini in regards to the issue of elevated pools on Palermo Circle on the Beach. Orlandini, who also emphatically denies any such allegation, is the principal builder involved with the pools/decks.
"While I know there is no truth to these rumors, they are still potentially injurious to my career and to the public trust, if left unchecked," Fluegel wrote. "Accordingly, I believe it is incumbent upon you to hire an outside attorney to investigate these rumors and dispel them once and for all."
Orlandini also discounts the unsubstantiated chatter.
"Why would they have to create a moratorium to stop what I am doing if a bribe was made to get a permit? There was a loophole in the code that didn't have clarity, so they had to give me the permits," he said.
Stewart stated Finance Director Evelyn Wicks is handling the matter and, once that investigation is complete, he will comment more.
Beach Mayor Alan Mandel stated he learned about the "rumor" on Oct. 23. He said he immediately called Town Attorney Jim Humphrey and the two met and talked about it the following morning.
"At that point, I turned it over to him," he said.
Residents on Palermo Circle and other Beach residents spoke in opposition to the construction of elevated swimming pools within the property of new single-family homes along that road's canals at a recent Town work session. They say the structures are blocking the view from their own properties and permits should not have been issued.
At the work session, it was stated initial staff approval of permits allowed elevated pool/deck work to begin on three homes. Eight additional permits were also approved but were not acted upon before an imposed moratorium.
Due to ambiguous language in the requirements of the Town land development code and different interpretations of it, questions have arisen to whether these elevated pools should have to comply with the principal structure setback of 25 feet or if a 5-foot accessory structure setback for such structures apply.
Before Council discussed the issue, Town staff and attorney gave the matter much review and determined that, as long as pool and deck are not attached to principal structure, an elevated pool should be allowed a 5-foot setback from a canal. It was also determined that an enclosure (fence, railing or wall) would be allowed for a minimum safety code requirement.
"Walter Fluegel was perfectly within his authority and right to grant those permits," said Councilman Joe Kosinski. "It was because of the ambiguities within the code that the developer was able to erect (the elevated pools)."
"I think the Town would be in trouble legally if we had denied that permit," added Town Attorney Marilyn Miller about one of the issued permits.
Currently, along with a moratorium, there is an interim draft ordinance that basically requires builders who want a permit for an elevated pool to come to the Beach Council for approval.
"It was a mistake that should have been caught a long time ago, and we see the implications of it now," said Kosinski. "But, it should not (impede) on his (Fluegel's) right to do what he is legally entitled to do. From this point forward, I think the Council has to draw some guidelines so that the importance of that view corridor is upheld."
The matter will be re-introduced to the Town Local Planning Agency for discussion (possibly at its Dec. 10 meeting) and recommendations will be brought back to Council's attention for further discussion and a possible policy decision.
Council may direct Town staff to prepare an ordinance to change the current code language and eliminate ambiguity. Three options have come to the table: 1) do not allow any elevated pools/decks (over 42 inches in height) in the rear yard setback of 25 feet from a canal; 2) allow elevated pools, regardless of elevated height to be set back 5 feet from canal; or 3) allow pools/decks (elevated up to 42 inches in height) to be set back 5 feet from a canal and allow pools/decks (elevated between 42 inches and 10 feet) to be set back 10 feet from a canal.
Neighborhood residents are basing their arguments on the "sanctity of a view corridor," but the permit requests were said to be made due to FEMA-imposed base flood elevation requirements that range from 10 to 13 feet above adjacent grade in that particular neighborhood. Council allowed public comment at the Nov. 18 workshop due to much community feedback via calls to and a strong contingence of anxious residents in attendance.
"If in fact, this allowed to have elevated pools which are detached five feet from the seawall, then the only time you will be able to see the canal is if you walk out on the seawall," said Palermo Circle resident Morris Curtis. "These are huge structures that you cannot see through. Even the fence ordinance says it has to be low when it gets closer to the seawall. There will be no view from any house that is next door to a home which has a detached elevated poll."
Under exceptions for accessory structures, fence code regulations state if fences are over 42 inches they need to be 25 percent opaque, says Palermo Circle resident Summer Stockton. At least one of the elevated pool accessory structures has concrete walls roughly five feet away from the seawall.
"Please base your decisions on the codes and not solely on opinion, wants, desires ands conveniency to walk out to your pool," she said.
One former councilman would like Town officials to enforce pool structures the same way Lee County does, since he says that both government agencies basically have the same law.
"We're not talking about prohibiting elevated pools, we are talking about setting them back," said Bill Shenko, Jr. "You are now permitting 20-foot-high structures to be built within five feet of canals. Pools are specifically addressed in the land development code. A pool is not an accessory structure. A pool is a pool. Your law has never changed."
Code language also states there is a 0-foot setback for boathouses. But, there is nothing written about restrictions for landscape buffers, enabling any size shrubbery or taller plants to be planted as borders.
Councilman Dan Andre read a recent email from Bill Spikowski, who created the code language some 12 years ago. In it, Spikowski called the whole matter "a community character policy issue."
"The Town's existing regulations were written to maintain reasonable views of water from adjoining homes," the email stated. "If that's no longer as high a priority as it had been, several other regulations should be changed also."
Litigation may happen no matter which decision is made, said Shenko.
Councilwoman Jo List agrees. She stated the code language has "so much wiggle room for interpretation" that money should be budgeted for court costs and legal fees.
"I don't see a happy ending to this conversation," she said.