Stilwell’s Termination Changed to ‘Without Cause’ – Fish Bowl Application Denied


    A reluctant Mayor Boback finally agreed with Town Attorney Dawn Lehnert’s recommendation on Monday night and amended his June 3rd motion to terminate former Town Manager Don Stilwell from ‘with cause’ to ‘without cause’, thereby meeting the terms requested by Stilwell’s attorney and saving the Town of Fort Myers Beach from another possible lawsuit. The most controversial topic on Monday, however, was not Stilwell but an application from the owner of the former Surf Club property for an expansion of that building to accommodate a new restaurant called the ‘Fish Bowl’ – a request that was ultimately denied after nearly an hour and a half of testimony and discussion.

    During Public Comment, Brad Cornell of the Corkscrew Swamp and Lee County Audubon, urged Council’s support of a referendum to continue the Conservation 20/20 Program.

    “For water quality, for quality of life, for economic purposes, we propose that the program remain,” he said. “And for or against – it will not raise taxes.”

    Jacki Liszak, head of the FMB Fireworks Fundraising Committee, received a round of applause when she presented Council with checks for $5,000 for the remainder of the needed funds for fireworks and an additional check for just over $7,000 – donated from the Lani Kai – to cover the costs of extra trolleys during the event.

    Joe Stockton commented on the offer of the engineering and architectural plans for the Coastal Protection System – the ‘seawall’ portion of the now defunct proposed Grand Resorts project – saying that should Council accept this ‘gift’ from TPI, it would ‘ring with impropriety’.

    During Advisory Committees’ Items, Kathy Light, Chair of the Anchorage Advisory Committee (AAC), asked that her committee be included in the planned review of the management plan for the Town’s anchorage. Council agreed.

    “Finally, we crunched the numbers and realized what we charge is towards the bottom of what is the average per day user fee of our mooring field,” Light concluded. “So we made a motion to raise that from $16/day to $18/day and we also think we can negotiate for a better split with the uplands provider. Right now its 35%/65% and we think we can do better.”

    During a discussion on the planned Fourth of July celebration, Council member Rexann Hosafros said she has serious reservations about the town sponsoring a hot dog eating contest, saying there are health issues involved.


    Fish Bowl Hearing

    Principal Planner Matt Noble outlined the request from the applicant, Ron Yanke, by explaining that he is asking to expand the outdoor seating and COP (Consumption on Premise) from the currently permitted area of just over 1,000 square feet to just over 2,711 square feet.

    “A lot of the issues have been dealt with with previous applications from this site,” Noble said. “This is an outdoor restaurant, the inside – being an old Waffle House – is very limited though there is an expansion for the kitchen area planned. The use is allowed as the location is in the highest land use – Pedestrian Commercial – and within the Downtown District. Staff originally recommended denial due to parking and compatibility with the hotel next door. Now the applicant has added an 8-foot wall that will wrap along the second floor. The effect of those changes leads me to believe we can recommend approval.”

    Tina Eckblad, Certified Planner and Partner at Morris-DePew, spoke representing the applicant.

    “The existing special exception limits live music to before 9pm and after 11am, and includes a landscape plan – those will remain,” she said. “The request is to take that special exception and expand it to permit additional outdoor seating and COP. This includes a 633 square foot 2nd floor, for seating only – so no music in this area.”

    Tina concluded by saying that the Town’s Comprehensive Plan encourages the use of types of non-vehicular transportation.

    Local Planning Agency Vice-Chair Joanne Shamp said that the major issues with her committee had to do with the compatibility of neighbors (Silver Sands and people on the canal) and parking. The LPA approved the project in a 4-2 vote (Shamp and Steele dissenting) on May 10th.

    Silver Sands owner Andrea Carriere said the operation of her neighbor would be injurious to her business. Her attorney, Ralph Brooks – a former city manager for Bradenton Beach, said he has some legal objections in regard to parking.

    “Your code does not allow the substitution of boat spaces or bicycle spaces for cars, and these car spaces are not ADA compliant,” he said. “They can use their building without these variances – this is too much in too small of a space.”

    Brooks also countered that the site plan does not show the adjacent buildings and how close they are to the applicant’s property.

    Nearly all of Council’s discussion dealt with the issues of parking and neighborhood compatibility, since the part of the application was for a zero setback on the side adjacent to Silver Sands. Of particular concern was the applicant’s request that the four boat slips and three bike racks on the property be used as substitutes for the parking requirement, and that plans to use valets to ‘stack’ cars would result in vehicles waiting their turn to be backed up on Estero Boulevard during season.

    “Has the Town done a zero setback?” asked Council member Rexann Hosafros, and Noble replied yes, at Smoking Oyster Brewery.

    “I’ve got a lot of problems with this,” Hosafros said. “I don’t like the idea of putting these buildings so close together – it doesn’t look good and it’s not safe.”

    Council member Tracey Gore said her issues are with parking and setbacks.

    “I also won’t support using docks as parking, or the three bike racks,” she said. “I think they should reduce their square footage to meet their parking.”

    Eckblad said that the applicant could meet the parking requirement of 31 spaces onsite using valet parking for the entire parking area.

    “Also, the kitchen area that is being expanded does not have a second floor on top of it,” she said.

    Attorney Dawn Lehnert cautioned against outright denial, saying Council has to be very articulate in what they are objecting too.

    Mayor Dennis Boback wanted to know how many feet would be between Silver Sands’ 2nd floor and the proposed upstairs area, and Eckblad replied ’21 feet’.

    Council member Anita Cereceda pointed out that what Council should be discussing is the applicant’s request for expansion of seating, period, and that issues with setbacks would come later, something Noble confirmed.

    “I also asked the applicant to provide evidence that he’s been open during the course of this review, and he did,” Noble added. A review of a report sent to the Florida Department of Revenue for the time period of January 1, 2016 through March 1, 2016 shows gross revenue of $9,579 – $1,460.38 of which came from food and beverage vending. The property has been operating as a seasonal parking lot.

    Hosafros made a motion to deny the motion without prejudice based on it not being compatible with the adjacent property owners – and that valet parking will be dangerous to pedestrians and cyclists. Gore seconded. The motion passed 4-1 (Cereceda dissenting).

    Council then quickly approved the Special Event application for the 2016 Pirate Festival, and appointed Natasha Jamison to the Community Resources Advisory Board (CRAB). With three applicants for the Local Planning Agency (LPA), Council discussed waiting until October when three other members’ terms are expiring. Gore made a motion to approve Hendrickson for the three-month interim period, which passed 4-1 (Cereceda dissenting). They also agreed to accept staff’s recommendation of the proposed adjustment to Island’s End stormwater fee and to ratify the employment agreement with Interim Town Manager Jim Steele.

    CPS Offer Seen as “Bribe”

    Echoing her father’s comments, Vice-Mayor Summer Stockton made a motion to deny the offer of the Coastal Protection System plans from Tom Torgerson and TPI, saying it would be akin to buying a council member dinner. The plans would potentially allow Times Square to be redeveloped at ground level rather than elevated. TPI announced recently that they had abandoned the CPS and several other features of their Grand Resorts FMB plans and offered the CPS plans to the Town and Lee County.

    “It looks like a bribe,” she said.

    “I don’t know why we would accept it, we’re not a storage facility, there’s no application – it’s been offered to the county and if the county takes it, it’s going to be public record anyway,” Gore said. “What stops every developer walking in and saying,’ I’m not going to give an application fee, here hold my files.”

    Cereceda clarified that what was being offered was intellectual property that, she said, “frankly fulfills the vision of our downtown district in the Comprehensive Plan.” Gore disagreed.

    Stockton said she did not feel comfortable considering accepting the plans until after those plans had been before council. Cereceda responded that the CPS plans would not be coming before council.

    Cereceda suggested tabling it until the fall, noting the time and saying she wants to make sure the offer gets proper discussion. The motion passed 3-2 (Hosafros and Cereceda dissenting).

    On the topic of Conservation 20/20, Stockton asked Cornell if there is a way to ensure the Board of County Commissioners won’t ‘steal it’.

    “You can have this as a binding referendum, meaning they’d have to take out a bond to pay it back,” Cornell said. “In 1996, it was non-binding, but now we have an ordinance dictating how that money will be used and how management will be done. Is it airtight? No. There is really no airtight way to bind a commission forever – the only way to do that is at the ballot box.”

    Cereceda’s motion to approve passed 5-0.

    Finally, Council agreed to a tentative millage rate of 0.9000 mils, and to set the September budget hearings on Thursday nights so as not to conflict with Lee County schools.

    Gore pointed out that this does not mean the mil rate will end up being 0.9 mils as once the tentative rate is set it can go down but not up.


    Stilwell Termination

    At the end of the meeting, during Attorney’s Items, Lehnert asked Council once again to amend their motion to terminate former Town Manager with cause to ‘without cause’, at which point the Town will pay his accrued personal leave, 20 weeks of severance and attorney’s fees.

    “I have struggled with this because I am 100% certain that the determination of ‘with cause’ would be upheld and, at some point while we’d put up attorney’s fees to start with, we would eventually recoup them in the end,” Boback said. “However, unfortunately that could drag out over a year or better.” He then made a motion to amend the motion to change the determination to “without cause,” which passed 4-1 (Cereceda dissenting).

    “I’m doing this against my better judgement simply because it would cause a lot of chaos in the Town over the next year and I think we have enough things on our plate… it’s in the best interest of the Town to get it over with and move on,” Boback concluded. “It was still the best decision and it pains me to do this.”


    Keri Hendry Weeg