The members of the Local Planning Agency began their monthly meeting Tuesday morning by honoring a long time member, Joanne Shamp, who is now a member of Town Council after being appointed to fill the remaining three months of Summer Stockton’s term. Shamp told the group she was honored to be recognized and promised to listen carefully to their opinions when matters come before her on council.
The newest member of the LPA, Scott Safford, was introduced. Safford was appointed in October by Town Council to a two-year term. A new member of the LPA will be appointed by Town Council to fill Shamp’s term, which expires October 2018.
The first order of business was a request by Heather Reagan proprietor of Mom’s Restaurant, represented by attorney Matthew D. Uhle, to rezone 2450 Estero Blvd from Commercial Boulevard to Commercial Planned Development (CPD) in order to allow a restaurant on the site.
Reagan opened Mom’s Fresh Produce in January 2015 and had a certificate of use permit issued by the town for the sale of fresh produce and seafood. By summer 2015, the restaurant was operating. Reagan told the LPA that she thought that her original certificate of use covered restaurant use also. She was cited for code violations and appeared before the magistrate, who gave her until January 10, 2017 to have the property rezoned to allow her restaurant or face fines if she keeps it open according to Uhle.
Reagan applied for a CPD on May 23, 2016 to allow the restaurant use. Uhle explained that the only way a restaurant could be an allowable use is via a CPD approval.
During Public Comment neighbor David Tezak objected to the CPD request, stating that the business is in violation of the Town’s ordinance and that he believes this is the same owner that established Heavenly Biscuit that was established and is still without appropriate parking, establishing what he believes is a pattern.
Ron Fleming spoke in support of the application, stating, “she’s only asking to be rezoned.”
Ron Reagan, brother-in-law of the applicant said that while he doesn’t live here, he visits often and is a strong advocate of small business and urged the LPA to approve the request. Tom Swanbeck, owner of the building, also spoke in favor of the request.
LPA member Dan Hendrickson read a letter of support into the record send by Jay Light.
During LPA discussion LPA member Jane Plummer praised small businesses and said she’s in favor of the restaurant.
LPA chair Hank Zuba asked if the restaurant was currently licensed as a restaurant. Reagan replied that they are licensed by the state and are inspected 3-4 times a year. They have been inspected by the fire department “about every 3-4 months.”
Zuba questioned Uhle regarding whether the applicant is the cause of the problem that the zoning change would fix, but Uhle responded that he didn’t feel the question was relevant.
Following further discussion, the LPA voted 5-1, with Zuba opposed to approve the CPD request.
Widgeon Terrace Variance Denied
A requested variance to allow further reduction of currently non-conforming rear and water body setbacks was denied 5-1 with Jane Plummer voting against the motion to deny.
Becky Duffey had applied for a 4-foot addition to extend their deck to provide more functional outdoor space and more view at their home.
Senior Planner Megan Will presented Town staff’s opinion, indicating that the property has been non-conforming since the construction of a pool cage. Will stated that staff was concerned that an approval would be precedent setting. There was no exceptional circumstance and the property was purchased after a neighbor’s building had already limited their view.
Plummer stated that Widgeon Terrace is a unique condominium community and few if any properties have the required 25-foot water body setback.
During public comment, Dave Ostdiek and Fran Myers, both Widgeon Terrace residents spoke in support of the variance, noting that the condominium association was in support of the request.
A motion to deny approval of the variance as it was inconsistent with the Comp Plan and did not meet the criteria for approval passed 5-1 with Plummer voting no.
Red Coconut Amendment
Parts of an LDC Amendment to change the required mobile homes or trailer setback at the Red Coconut from 20 feet to 5 feet were approved. Two of three requested changes calling for a setback of 5 feet to any paved right of way, compared to the current LDC rule of 20 feet from a publically maintained road, were approved.
The third change referring to Donora Blvd and the Gulf side of Estero Blvd, had the LPA split with two wanting to eliminate that section entirely as Town Attorney and Red Coconut attorney Beverly Grady advised; two wanting to establish a 5 foot setback and two undecided.
Without any maps or drawing provided, the discussion at first centered on where the setbacks would apply and on whose property. The Village District, to which the new ordinance would apply, is the Red Coconut RV Park. According to Beverly Grady, attorney for the Red Coconut, the zoning district was established to allow the RV park to continue to operate as is until it is sold or developed. At that point the Land Development Code (LDC) Village District section would control that development.
Grady told the LPA that there were no limits on setback at the park until 2005, when a “glitch” ordinance was passed to correct a number of issues with the code. In that 2005 ordinance, a setback for trailers in the Village District was established at 20 feet from a publically maintained road. She states there was no notice of that ordinance hearing and her clients, Fran and Tom Myers, never received any direct notice. The change was part of over 100 pages of changes passed in April 2005.
Grady made a case that there should be no setback whatsoever as there was none before the 2005 ordinance, which she claims was illegal, even though it was never enforced until Labor Day weekend this year. She said that even changing it to 5 ft. could be considered a “taking” and would make it a possible “Bert Harris” case. The Bert Harris Private Property Rights Act prohibits the “taking” of private property, which can be defined as limiting the existing use of private property by government regulation or rule.
Town Attorney Dawn Lehnert urged the LPA to eliminate the 5 ft. setback to avoid a litigation fight with the Red Coconut. She stated that the Town should let Lee County deal with any litigation regarding the Red Coconut and the Estero Blvd project and once that is completed, the Town can come back and add a setback if it wants to.
In almost all setback situations in the LDC, front, side and back setbacks are specified in the LDC as beginning at the property line. The ordinance under consideration used different terminology and does not use the term setback, but instead states, “transient recreational vehicles may not be placed closer than 5 ft. to any paved right of way. (proposed version)
A long discussion of the difference between ‘paved right of way” and “publically maintained street” (current LDC wording) and whether it should be 5 ft., or nothing, resulted in no consensus.
Red Coconut owner Fran Myers spoke, telling the LPA that if they think that the issue is confusing to the LPA, they should imagine how confusing it is to her customers. She said she is working with the town to lease space in the public right of way along Donora, and needs this setback issue clarified.
“Years ago a 25 ft. trailer was a big trailer. Today a 40 ft. trailer is not. Every foot you take away from us or the county does, if they so desire, is a problem. The more the Red Coconut is squeezed on the side and the front…and your FEMA regulations that won’t let us replace what we already have – Red Coconut is going to disappear. We can’t continue to operate financially.
“I hope you understand what it will do to the (Red Coconut). First the county decides to take that whole right of way. I’ve asked them (Lee County) to put in a smaller sidewalk, but as it is it will take my showers and restrooms.
“We went through a lot to get what we have right now. It took a long time. Tom and I have no plans to ever sell that park. My kids have no plans to ever sell that park. Yet we’re faced with selling that park….please look at this carefully because it really is a major thing.”
LPA’s approval of parts of the LDC Amendment will now go to Town Council.
In LPA housekeeping, Suzy Katt was selected as the Chair of the Historic Preservation Board with Bruce Butcher selected as Vice-chair of the LPA.
Senior Planner Megan Will announced that she will be leaving Town staff in early January to move to Texas.
The next meeting of the LPA is scheduled to take place on January 10th at 10 am, however a scheduling conflict requires that it not be held at Council Chambers. Town staff will announce the meeting details at a future date.