The Local Planning Agency for the Town of Fort Myers Beach took on a full agenda Tuesday, December 10 and still got more than they could have expected when one applicant began screaming obscenities at a member of the LPA before being escorted out of the meeting room by his attorney.
Carmen Naccarato, owner of Key Estero Shops, LLC at 1661 Estero Blvd in Fort Myers Beach was before the LPA for a Public Hearing on his request that his daily use of the parking lot at the shopping center be deemed an “existing nonconforming use for a Commercial Parking Lot.” The property has been cited by Code Enforcement for selling parking spaces intended for the commercial businesses on-site. The staff report signed by Jason Green of Community Development Services indicates that Naccarato was offered the option of a variance, but did not pursue that option.
The staff report concluded that Naccarato did not provide documentation proving that the site qualified for the “existing nonconforming use” designation.
Attorney Steven Hartsell of Pavese Law Firm, representing Naccarato, stated that, based on the initial Lee County BU-1 zoning when the property was built in 1976, commercial parking was a permissible use. “The county allowed it; there was no prosecution,” he said. “Since then and before incorporation, extra parking spaces were used for paid parking. Key Estero daily parking should be recognized as an existing non-conforming use.”
An affidavit from Yvonne Lucas, former secretary of Beate Rotermund, Inc, previous owners of Key Estero Shops, that sold the property to Naccarato in 2017, stated that under the previous ownership, parking spaces were rented on weekends, holidays and special events. Since his purchase of the property, Naccarato said he’s sold parking spaces 365 days a year.
Hartsell brought his client to the podium to answer some questions early in the hearing about property ownership and use. Though Naccarato struggled to respond when asked where he lived, he stated that only four of 28 units were currently leased in the Key Estero Shops. In response to a later question, he said that when he purchased the property in 2017, it held 9 tenants. (The Island Sand Paper was a tenant in 2017 before moving to a new office location.)
LPA members questioned whether Naccarato had purchased the property with the intent to operate a commercial parking lot rather than a retail/office center. Hartsell declined to answer that directly, indicating that even with all 28 units occupied, a parking attendant would still be necessary to protect parking for tenants.
Hartsell explained why his client had not applied for a variance or permission for the parking lot. “Because it’s an existing non-conforming use, there shouldn’t be a need for those.”
One of the requirements of a commercial parking lot in the Town is a landscape buffer. Naccarato took to the podium to tell the LPA that he’d spent over $35,000 on landscaping and had planted 64 palm trees. When asked if the multiple boards connecting the new palms in the now closed southern entrance to the center from Estero Blvd, were an illegal fence, Naccarato stated that they were “braces for the palms.” His attorney stated that he was unaware of what would be required for the property to meet current commercial parking rules.
LPA Attorney John Herin, Jr. summarized the request, stating that the applicant claimed that use as a commercial parking lot is permissible and has been used that way since 1976. The primary use now is as a parking lot, but it was never permitted as one. ”Just because it’s happened, doesn’t mean it must be grandfathered.”
“It’s Always Peak Season”
LPA members pointed out that the parking lot diagram provided in the application did not reflect the current parking configuration and that previously, parking at Key Estero had been in compliance with Land Development Code (LDC) 34-2019 which limits leased parking to the general public to “peak periods.” To which Hartsell replied, “It’s always peak season.”
At this point, Naccarato took to the podium and began discussing previous conflicts he’d had with LPA member Scott Safford, a neighboring business owner. When told to stop by LPA Chair Megan Heil, he began shouting and screaming profanities at Safford on the dais. Heil declared a 10-minute break as Hartsell took Naccarato outside.
On returning Hartsell apologized for Naccarato’s emotional outburst and promised it would not happen again.
Dan Hughes pointed out that testimony by the applicant had confirmed expansion of non-conforming use. Hartsell stated that expansion would mean adding additional parking spaces, not the rental of spaces more days per year.
Following discussion the LPA voted 6-1, with Plummer Against, that commercial parking at 1661 Estero Blvd was not a lawful existing non-conforming use.
MUD, Setbacks & Height Rules
Two additional Public Hearings served as information gathering for Town Staff on several LDC changes under consideration, one on Minimum Use Determination and the other on building heights and setbacks.
Minimum Use Determination (MUD) refers to the size a lot must be in order to be built on. According to the staff report by Sarah Propst, current MUD rules require that lots be larger than 4,000 square feet and meet density rules if a structure has been built over a property line. The proposed new rules would designate any legally platted lot with direct access to a developed Right-of-Way and utilities as buildable. The LPA voted 6-0 to approve, with Dan Hughes having left the meeting for an appointment.
A more complicated set of LDC changes involved setbacks, porches and height rules. Giving the LPA two choices on each topic, Propst explained the options.
On height, the LPA had previously asked for options to avoid the big box look of new homes utilizing all available space within current setbacks for new construction. Propst offered a “sticks & carrots” option, where allowed height was tied to setbacks. An example: Receive an additional 5 feet of height if the third story was set back an additional 5 feet from the required property line side setback. An additional story would be permitted if overall height was not more than 5 feet above current height restrictions and all setbacks were increased by 5 feet, with the area below base flood elevation unenclosed except for a maximum of 300 sf for upper level access.
The other height option was deemed “Daylight Plane Angle” which requires upper floors to be inset so they are smaller than the first livable floor, with variable insets based on property width.
The LPA was split with 4 liking the “sticks & carrots” plan and three the Daylight Plane Angle plan. Town Staff will work on a compromise solution.
The LDC porches rule currently allows front porches to encroach up to 10 feet on front setbacks. The problem, according to Propst, is that many homeowners are building two story “porches” that are a solid wall, often not resembling a porch at all. The proposal that the LPA members unanimously liked would allow the 10 ft porch encroachment but only on one floor.
Finally the proposed new side setback rules that the LPA supported would set side setbacks based on lot width, with lots up to 55 feet using 7.5 feet side setbacks and lots over 55 feet requiring 10 feet side setbacks.
New Bay Oaks Lots
The LPA quickly passed a rezoning of 2639 and 2641 Estero Blvd from Residential Conservation to Institutional. The two lots were acquired by the Town for Bay Oaks use. Green told the LPA that plans are not yet complete on how the Town will utilize the lots.
Town Council recently asked the LPA to look at the town’s Special Events rules and consider any changes that should be made. Currently the Town defines a special event, in part, as, “Any activity conducted on public or private property that will or has the potential to substantially affect the ordinary and customary use of beaches, public streets, rights-of-way, sidewalks, and other public forums…” Special events require a special event permit.
Patty Provost, who manages special event permits for the Town, explained to the LPA that any private event that will not have an impact on the public, i.e.: uses lawful parking; no amplified music, does not need a permit. Several residential events in the past year have led to parking violations for attendees parked along residential right-of-ways. Provost reminded the LPA that if there will be amplified music, the town should be notified.
Green said staff is working to simplify the special events process and asked for input on problem areas that LPA members see. Several suggestions were shared, with an emphasis on eliminating “needless paperwork,” streamlining the process and improving community relations regarding special events.
Council member Rexann Hosafros was in attendance at the LPA meeting to discuss how the LDC addresses churches and religious facilities. She indicated that several beach church ministers have expressed concern regarding the ambiguity of the LDC.
“Places of Worship” is defined in the LDC as a structure designed primarily for an assembly of people for religious worship. They are a permitted use in limited zoning districts. “Religious Facilities” may include convents, retreats or bus storage facilities and require a Special Exception.
Hosafros explained that how churches function has changed dramatically, with many non-worship activities being held in the sanctuary and some worship services in other buildings on the church campus. She asked the LPA to consider how the LDC might be changed to accommodate the churches’ concerns, urging them to consider grandfathering in the current church-related activities held at Beach churches. The LPA agreed to consider LDC changes related to churches.