One week after a legal settlement agreement during a special meeting regarding the case Orlandini vs. the Town of Fort Myers Beach sparked confusion among residents, Fort Myers Beach Mayor Anita Cereceda and Beach resident Tracey Gore sat down to discuss and debate the results.
Both ladies, who refer to themselves as good friends, are somewhat at odds to the agreement's conclusion. The entirety of the settlement of the so-called "elevated swimming pools issue," which relates to building development setbacks and heights, can be viewed at www.fortmyersbeachfl.gov/DocumentCenter/View/7029 .
In a nutshell, the written settlement involves building permits and judgment calls on Town regulations for principal structures and accessory structures, such as elevated pools, at five properties along Palermo Circle. The property at 301 Palermo Circle particularly has neighbors upset due to a view corridor issue.
This is the view of 301 Palermo Circle from a residence on Primo Drive across the canal. Affected residents of the view corridor infraction on that street hope that a re-configuration of the structure will alleviate view blockage.
Legal action was filed after Council denied the developer (Joe Orlandini) an appeal regarding the continued construction of five accessory structures within the property of new single-family homes on Palermo Circle on Fort Myers Beach back in mid-January. The other properties in question are at 221, 263, 455 and 551 Palermo.
"The settlement agreed to allow non-comformities versus giving them a variance. A variance would create a right to that (301 Palermo) property," said Cereceda. "All the other properties that had permits but no buildings on them will be built to the code with the added restriction that nothing can be over 42 inches in height in the setback."
Cereceda, who admitted she has loss much sleep over this issue, says the settlement is basically done with the only thing needed to close the books is signatures and clarifications of the renderings. While no timetable has been set for final plans completion, those clarifications and modifications will need to be exact before signatures hit the paper, says Gore.
The 301 Palermo property appears to be the main cog in the settlement. A Town will remove a "stop work" order placed there, which will allow the completion of the single family residence currently under construction consistent with the plaintiffs' architectural and site plan in compliance with the Florida Building Code. The existing deck/wall will be removed and a second "balcony" (an upper balcony already exists) is expected to be constructed within 25 feet of the seaward side of the seawall and be built equal height and distance as the upper balcony without a solid wall-like structure built underneath, as it is now. The underside is expected to be open and the second balcony held up by pilings only.
Gore is worried that the drawing plans do not feature such limitations. She states the original plans for the structure feature the "illegal" balcony on the third story overlooking the bay at five feet (20 foot setback from the water rather than the required 25 foot setback) and that the new plans show the modified "deck" on the second story (first habitable floor) as 17.11 feet setback from the water.
"So that's an eight-foot balcony," she said to Cereceda. "You said very clearly that the third story balcony and the second story deck (balcony) would be the same size (setback from the water)."
"That's why the plans have to be modified," countered Cereceda.
Those modifications expect to be profiled prior to signatures. That is where the confusion lies.
Primo Drive resident Gerry Trantina, who has a PhD in Structural Mechanics, has taken detailed looks at property drawings and presented four "inconsistencies" (probably code violations) to Council about 301 Palermo back in December 2013. The inconsistencies focused on the accessory structure (a drawing of a 1-inch gap between principal structure and accessory structure is noted incorrect because it is "securely and completely attached with cement to the principal structure on three sides and is thus not an accessory structure"); water body setbacks (the distance from the elevated pool to the seawall not the cap is 4 feet all along the two seawall sides and not the required 5 feet, while a 3-1/2 foot concrete wall is allowed rather than a 15-foot opaque concrete wall); and the upper balcony on principal structure (it is judged to be 20 feet from the bay, not the required 25 feet).
"So was the drawing with the 1-inch gap just a ply to get approval,?" he stated through email to Council members last week. "We all know (including Orlandini) that the pool deck at 301 is structurally attached (no gap) and is thus not an accessory structure and must be setback 25 feet from the bay."
While a few neighbors may still have a partial view corridor restriction once the "wall" is demolished, Council had to consider the whole picture when coming up with the settlement decision, says Cerceda.
"At what cost do we keep going," she said.
Gore believes final plans will resolve some issues.
"I think a lot of the anxiety will go away once the final plans are done and the neighbors see the profile," she said. "What is actually going to happen is still unknown to all of us. They can't digest it, because they don't know what they are eating yet."
"That will only be accomplished with a little more time," added Cereceda.
The other four properties are entitled to the construction of a single family residence and accessory structure, yet no accessory structure may be constructed within 25 feet of the seaward side of the seawall if the height of such accessory structure exceeds natural "predevelopment grade" of 42 inches.
As far as settlement funds, the Town agrees to pay all the plaintiffs the sum of $250,000 to the escrow account of Roetzel & Andress within five business days of the plaintiffs' demolition of the currently existing deck at 301 Palermo.
"That money could be potential future litigation fees that we would have faced had we decided to go to trial, which our attorneys estimated would have taken us to September of next year. It could be attached to the demolition cost of that structure so that the original structure could be retrofitted," said Cereceda.
"We are paying $250,000 for everything to stay illegal," hammered Gore. "I would have felt a lot better if BDH Enterprises had to take that house down and make it all conforming for $250,000. After the meeting, a lot of the affected neighbors told me they still don't know what they will be looking at."
The settlement does allow the Town to make the remaining building permit applications for the four other properties in question to be consistent with the provisions of Town of Fort Myers Beach Resolution 13-26 and the FMB Land Development Code, according to Town records.
"All the other properties would have continued to be built," Cereceda said. "This is the best victory we could get."
At the meeting, Gore called the whole issue a "total (Town) staff error." She feels for her neighbors on Primo Drive that are "taking one for the team" in light of this settlement. She is still calling for the Town to hire Lee County Building Department officials to take over building operations, but is relieved that a County official will be overseeing 301 Palermo until that project is over.
Councilwoman Rexann Hosafros, who has a background in legal service work, thought it best to settle instead of the Town incurring more legal costs.
"I believe that this is the best agreement that we are going to do for the best interest of the Town at this point in time," she said.
Vice Mayor Dan Andre, who may be tasked with signing a finished document since Cereceda may be out of country at the time, agreed.
"I think you can't look at the money in terms of value," he said. "The Town made a mistake, and Mr. Orlandini is not the enemy. He was given a permit that said you can build this structure, and now we are saying you have to tear it down. The Town has to pay a price for that. This is punitive."
Processes for such future building development will most definitely be going before Council for interpretation from now on. Councilwoman Summer Stockton, the lone dissenter in the 4-1 settlement agreement, wants that and more to be known.
"If we are going to pay this price, then I suggest we take up a zero tolerance policy from here on out on developers, staff or anyone else who dare circumvent our codes," she said. "Otherwise, this is a waste."
Cereceda calls the settlement an "insurance policy" to the Town.
"No other neighborhood will suffer what the Palermo neighborhood suffered, period," she said. "The task of our local planning agency and our staff this summer is to work very hard to clarify our existing law, so that everything will be clear as water."