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Elevated pools hearing tabled until finding

December 4, 2013
By BOB PETCHER ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

A proposed ordinance to amend the Town of Fort Myers Beach land development code regarding accessory uses, building and structures has been put on hold until a interpretation finding and an independent investigation review from an outside attorney involving the question of code, the Town's computer system and accusatory whispers about an alleged bribe from a Town official comes forward.

After much discussion and public comment at its meeting Monday morning, the Fort Myers Beach Town Council unanimously approved to table the first of two hearings for Ordinance 13-10 that would prohibit elevated pools and related issues until code legislation can be adopted for more effective regulation. At least three of its members said they would not vote for it the way it is presently written.

The action on this issue comes after ambiguous language in the Town LDC and different interpretations of it were disclosed. Council approved a resolution on Oct. 21, declaring "zoning in progress" with regards to regulations for elevated pools. The Town's Local Planning Agency, which recommended approval of the proposed ordinance on Nov. 12, has been asked to continue to work on the language of the proposed ordinance and the issues involved to reduce identified ambiguities.

"Basically, we will use the attorney's findings of any ambiguities as a benchmark to review and consider what is brought forward by the LPA," said Mandel.

Currently, there is a moratorium in place for new elevated pool permits and an interim draft ordinance that basically requires builders who want a permit to come to the Beach Council for approval. Four building permits are in process and need Council attention as an appeal to the "zoning in progress" requirements.

Public 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. Other issues involve height limitations for principal structures and swimming pools and decks above the crown of the adjacent roadway.

But, the proposed amendment to the ordinance not only deals with elevated pools. It opens it up to all accessory structures. Town Attorney Derek Rooney cautioned that approach.

"By adding to this, you are dealing with a much larger subset of permits," he said. "You are actually opening up your liability a great deal more. Every time someone wants to put in a small shed that all of his neighbors have, you are going to have a public hearing that could open yourself up to more conflicts that you wish to desire."

It was reported that a range of 40 to 80 building permits of this nature are dealt with on a weekly basis at Town Hall. Much of those are "over-the-counter" permits.

Town Manager Terry Stewart agrees the provided ordinance, recommended by LPA, may cause a problem.

"We are going to have unintended consequences as long as this ordinance is in place," he said.

Town Community Development Director Walter Fluegel told Council members in June that the code language for elevated pools and accessory structures was going to be an issue, according to Councilwoman Jo List. After Council's July break, the LPA was asked to look into it.

"I have been cautioning this council since the day that this was first discussed," Stewart said. "You can write the most artfully crafted set of codes in the world, and you cannot cover each and every single set of circumstances."

The issue became intensified during a recent Town workshop when Beach residents spoke in opposition to the construction of elevated swimming pools within the property of new single-family homes along Palermo Circle canals. 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.

Town staff and attorney have given 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 through code language that an enclosure (fence, railing or wall) would be allowed for a minimum safety code requirement.

At the most recent meeting, developers expressed concern over the inability to move forward with their work due to lack of clarity and uncertainty.

"Homes without pools on this island, especially of this nature on the Gulf side, do not sell," said Steve Dodge, a developer on the south end of the island. "If you want to suppress economic activity, this is a very good way to go about it. We need to know what the rules are."

Clouding the actual issue are unsubstantiated rumors/whispers floating around the Beach about an alleged "bribe" between a Town official and a Beach developer. An investigation involving an outside attorney (the Town attorney firm was deemed not an objective third party) was requested by Fluegel, the person the whispers are about and who brought the matter to light through a inter-office memorandum. That investigation has begun, but there is no time table for finding.

"Walter Fluegel was perfectly within his authority and right to grant those permits," said Councilman Joe Kosinski earlier this month. "It was because of the ambiguities within the code that the developer was able to erect (the elevated pools)."

While the whispers persist, no charges have come forth.

"Nobody has brought forth a single accusation," added Stewart. "I firmly believe in the innocence of Mr. Fluegel."



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