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Fresh legal advice needed for 'Palermo project'

January 29, 2014
By BOB PETCHER ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

Fort Myers Beach residents have called for an independent legal opinion to tackle the issue relating to a lawsuit directly related to elevated swimming pools and accessory structures as well as all the permitting processes, land development code regulations and the question of ambiguities within it, administration variances and proposed ordinances involved in the matter.

Town officials are listening.

The Fort Myers Beach Town Council approved a decision to meet with an outside attorney in a closed session and continue a second and final judicial hearing to adopt Ordinance 13-10 only after seeking and receiving the outside party's opinion. The hearing, which began Jan. 21, is slated for Tuesday, Feb. 18, at 6:30 p.m.

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While work continues on the principal structures of buildings in question on Palermo Circle, an imposed moratorium for building elevated pools and accessory structures continues.

The issue has been ongoing for most of 2013 and is now certain to be stretched into its second month of 2014.

"I think that, with the new attorney, we should aggressively argue that the plans (for elevated pools and accessory structures that have been permitted) were misrepresented, and we need to start taking a look at how they need to take them down," said Councilman Dan Andre. "From Day 1, I've said that the code is not ambiguous."

A moratorium is still in place for permitted pools and accessory structures that are built higher than 42 inches of natural grade and have less than a 25-foot setback from a seawall. Five permits have been put on hold and denied through appeal.

According to Town officials, one such structure was issued long before the "zoning in progress" declaration and another like property at 301 Palermo Circle has a principal structure that is under construction with a pool deck already built and the pool permit not issued.

Attorney Beverly Grady of Roetzel & Andress has threatened legal action on the property in question, and Fort Myers-based law firm Knott Ebelini Hart has been retained to defend the impending suit. The law firm is currently doing research in the case matter.

"That is why we have the lawsuit. There's a mandamus action to try to get the court to order to issue it," said Town Attorney Marilyn Miller. "We need to continue on with what we started with -the resolution (declaring) 'zoning in progress'- and then the adoption of this ordinance to put you in the best legal position with the lawsuits."

Ambiguity issues appear to be a crutch in this equation.

"There is no ambiguity in our land development code. If staff felt there was, a stop work order should have been issued and the developer be required to file a variance request," said former Councilman Tom Babcock.

Beach resident Jessie Titus stated the issue is not one of elevated pools and codes, but of the process to obtain zoning and building permits for such structures and the 40 percent rule.

"The big question is why?",she asked. "Why would staff believe they have the authority to issue an administrative approval for a four- to five-foot setback when this has never been a question before the 'Palermo project'? "Why does staff state there are ambiguities in the code when those proposed ambiguities apparently were never in question for the rest of the island? Why does staff believe they have the authority to issue an administrative approval for parcels of land that have more than 40 percent improvement?"

Titus went on to ask several other questions during her public input time. Council said those questions would be reviewed and addressed.

Proposed Ordinance 13-10 began as a resolution that declared "zoning in progress" with regard to regulations for elevated pools on Oct. 21. The first public hearing for the proposed ordinance was held on Dec. 2. Council tabled the ordinance.

On Jan. 10, the Council unanimously removed the ordinance from the table and voted to set a second public hearing for it on Jan. 21.

During that hearing, Miller stated she had drafted "alternative language" to the proposed ordinance that amends Chapter 34 of the Town LDC and deals with the prohibition of elevated pools and accessory structures.

She prepared two options for usage -a broader one that involved language regarding regulations to maintain a view corridor of 25 feet, height limitations to accessory structures not part of principal building to be no more than 42 inches above the natural grade of the lot and another that further describes non-roofed accessory facilities.

"The first one would prohibit, for now, things like tool sheds and detached garages. That is more towards the ultimate goal of a 25-foot view corridor," she said. "The other one would just limit the non-roofed structures."

Andre would like a way to incorporate landscaping into proposed language.

Meanwhile, Beach residents wonder what will happen to structures that were allowed to be built "out of compliance," like concrete walls that do not have just 25 percent opaque qualities. Will they be ordered to be torn down or grandfathered in?

Lawsuits could come from developers if already-built accessory structures are to be demolished. Yet, possibly more lawsuits could come from adjacent property owners who claim rights were taken away from them.

"It seems to me that a clear strategy must be developed by Town Council to protect the Town and residents," Babcock said. "The strategy must accomplish two things in my mind: to ensure there is a moratorium on permits for elevated pools that are not consistent with how our land development code has been interpreted in the past; and to correct the mistake that was made when permits were issued."

Beach resident Tracey Gore expressed anxiety that changing language in the LDC may send the wrong message.

"I'm concerned that if you tweak it at all, you basically said to the developer, 'as of yesterday you were allowed to do it, but as of today you can't'," she said.

"Our code is understood by many, many professionals in this area and our code, as is our process, is clear," added Titus.

Babcock stated he would support the proposed LDC modified language to pass Ordinance 13-10 on three conditions. They are: "if there is no admission that the Town code was ambiguous; that the clarifying language being approved reflects how previous staffs, LPAs and Town Councils have interpreted the Town code; and there is admission that the staff acted inappropriately by issuing a permit administratively rather than use the processes clearly defined by the LDC."



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