Walkover, Parking & More

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Ambitious Council Agenda

The Town Council of Fort Myers Beach tackled an ambitious agenda at its meeting on Tuesday morning, January 21, with roughly 35 people in attendance at the start. Council member Joanne Shamp was on an excused absence, meaning all unanimous votes were 4 to 0.

Of the nine scheduled Public Hearings, two received postponements. Publix Supermarket voluntarily pulled its Second Reading & Final Hearing for its Commercial Planned Development Ordinance to add a liquor store to its 4791 Estero Boulevard location. Town Staff requested and Council unanimously concurred to reschedule the Second Reading & Final Hearing for the Land Development Code (LDC) Amendment Ordinance for “Fences, Walls and Entrance Gates” to Monday, February 3.

Dune Walkover Rehearing

Council moved one of the three Administrative Agenda Items to the front of the meeting: “A Request for a Rehearing of the Dune Walkover for 8150 and 8170 Estero Boulevard.” At its November 18, 2019 meeting, Council after a nearly three-hour hearing voted 3 to 2 to deny a Special Exemption to the LDC in the Environmentally Critical Zone for a dune walkover and boardwalk for Texas Hold ‘Em LLC and Squeeze Me Inn LLC at 8150 & 8170 Estero Boulevard, with Cereceda, Shamp, and Council member Rexann Hosafros against and Vice Mayor Ray Murphy and Council member Bruce Butcher in favor.

During Public Comment, Kurt Kroemer, Managing Partner for Squeeze Me Inn, and Edward Rood, Managing Partner of Texas Hold ‘Em each spoke, leading Town Attorney John Herin, Jr., to caution Council, “all you can consider today, in making your decision on their request, is what they submitted in writing, per your Town Code, and all other statements you should not consider in their request.” Three others spoke, two against a rehearing and one in support. Staff recommended Council deny the rehearing, as only new evidence can trigger that action, and they conclude the two are not offering any new material.

Butcher asked the applicants’ next step if the Town turned down a rehearing. The Town Attorney responded that they voluntarily will seek a third-party mediator remedy. Cereceda stated that while it is doubtful she will change her initial vote, she may consider a rehearing and asked Hosafros if she shared that. “I don’t,” replied Hosafros. “I would vote for that if they showed us new evidence but I searched all through this and there is not any, nor did we overlook or misunderstand any at the original hearing.” Murphy, however, made a motion to grant the rehearing, with Butcher immediately seconding. Murphy stated, “They made a very compelling argument for a rehearing, that material at the original hearing was not applicable to what was before us.”

Cereceda asked what the applicants can present at a rehearing, with the Town Attorney replying, “only new facts or areas of the law you may have misinterpreted,” and said that since their next recourse is a third-party mediator, “we are months away from any potential lawsuit.” Butcher noted the Town already spent approximately $80,000 to date litigating this, as “we are sending money down the rabbit hole, so let’s have a rehearing to avoid this.” Hosafros stated, “They will sue us anyway, unless the rehearing changes our denial, so let’s deny the rehearing and move this process along so they can get on with their next lawsuit.” “Unless you change your mind at the rehearing,” noted Murphy. Cereceda said she will support Murphy’s rehearing motion and asked the Town Attorney when that may be. Herin stated, “we will try to get that on the February 3 agenda,” and the motion passed 3 to 1, with Hosafros against.

Key Estero Parking

Under Public Hearings, Council heard the “Review of Non-Conforming Use (NCU) Determination for 1661 Estero Boulevard.” Steven Hartsell of the Pavese Law Firm argued that his client, Carmen Naccarato, owner of the Key Estero Shops (KES), has a NCU to charge for Public Parking since the shopping center’s 1977 construction under Lee County’s BU1 Zoning, so the Town should grandfather this right, even though he only purchased it on March 1, 2017. Hartsell presented an affidavit from a previous KES owner stating that they sold public parking on weekends, holidays and special events without any recrimination under Lee County zoning, while stating that Fort Myers Beach is in dire need of public parking. Parking in the 135-car lot was one of the main reasons why Naccarato purchased KES that now has just four businesses in its 20 rental store units, concluding with “NCU is essentially what we have right here.”

Murphy asked the long-term parking lot intent and if Naccarato was actively marketing his available units. “To run it as a shopping center,” replied Hartsell. “He is making improvements to the building and landscaping to get renters in there.” Butcher did calculations based on Lee County requirements and determined that KES tenants were due 110 parking spaces, “so that leaves you 25 for surplus paid parking. I have been going to KES for my haircuts since 2012 and there was never an attendant there charging for parking until 2017; that is my expert testimony and recollection! I spoke to renters there and their main complaint is there was no place for their customers to park because he rented out all the spaces. Why are you here under a NCU; why are you not here seeking a Special Exception Use?” Hartsell replied that “the NCU is grandfathered, going back forty years.”

Cereceda agreed that Fort Myers Beach needs parking but “the reason we are here today is how to get us to that and I am not sure this is it!” Hartsell countered that “it was a NCU in the 1970s and all we are asking is to continue to do so.” Hosafros disagreed that it qualified under a NCU and Butcher agreed, suggesting KES proceed later with a Special Exception request. Council then unanimously rejected the NCU, with Cereceda saying to the applicant, “hopefully you will apply for a Special Exception.”

Vacations, Fertilizer & Lighting

In the six remaining Public Hearings, Council unanimously approved to its February 18 meeting the “First Reading & Public Hearing to Rezone the Town-owned 2639-2641 Estero Boulevard from Residential Commercial to Institutional” for the Bay Oaks Recreational Center Master Concept Plan; approved to its February 18 meeting the “First Reading of the Land Development Code Text Amendment related to Coastal Development and Environmentally Critical Zoning Use District” language clarification; and rescinded in a strictly procedural matter its prior “Resolution of the Vacation of Portions of Right-of-Way and Portions of the Crescent Beach Plat” to the Margaritaville FMB Resort, per Margaritaville’s request, with Margaritaville to apply at a later date once the Town updates its land vacation policy.

Council unanimously approved to its February 3 meeting the “First Reading & Public Hearing of the Ordinance for the Vacation of the Town Interest in Real Property,” to streamline and update vacation procedures; approved to its February 3 meeting the “First Reading & Public Hearing Regulating the Application of the Fertilizer Ordinance” based on the latest State-approved model that is more stringent in its criteria content, timing and fertilizer application in the Town, though Kelly McNab of the Conservancy of Southwest Florida urged Council to retain its stricter 2008 Nitrogen fertilizer cap to protect water quality; and approved to its February 18 meeting the “First Reading & Public Hearing for the Sea Turtle Conservation Ordinance” to provide Sea Turtle Protection Lighting in the LDC based on the State’s model ordinance, though Council has yet to decide if they will apply it Town-wide or a specific distance from the Gulf.

In the two remaining Administrative Agenda items, Council unanimously forwarded its “Tourist Development Council Project Grant Requests for Fiscal Year 2020-21” that includes the prospective Palm Avenue Restroom; and authorized Town Manager Roger Hernstadt to execute an agreement with AuMiller Pools for $131,780 to resurface the Bay Oaks Recreational Center lap pool, while instructing him to ensure this will be done in a few days, unlike the months-long and ongoing Kiddie Pool play structure renovation “that people are unhappy about,” noted Butcher. Cereceda directed the Town Manager to inform Council of the lap pool work dates and when it will be complete “so we can respond to people when they ask us.”

In other matters, under “Advisory Committee Reports: Community Resources Advisory Board (CRAB),” Chair Sheena Stockton expressed CRAB’s frustration over the slow pace of government action, stating, “Most of our agenda items are the same since 2014 except for developing the current Town app. Perhaps it would be beneficial to assign us a task we can accomplish to benefit the community, or maybe suspend us until that time.”

Under “Consent Agenda,” Council unanimously passed the Statewide Mutual Aid Agreement with the Florida Department of Emergency Management for reciprocal emergency aid in a crisis too extensive for the Town; appointed Dr. Gregory Fossum to one of two vacancies on the Marine Resources Task Force; accepted a Special Event Permit Application from Tunaskin Aquatic Apparel for its “Beach Keeper’s Beach Clean Up” on February 2; and approved the Sovereignty Submerged Lands Lease Renewal with the Florida Department of Environmental Protection for the Mound House Pier.

Under “Town Manager items,” Hernstadt reported that Council will receive at its February 18 Meeting concept plan reports on Times Square, Bayfront Square Park and the Bay Oaks Recreational Center. “If you feel these are far enough along, move them on to the next stage, to get construction plans to the design firm.”

Traffic, Branding & Referendums

Under “Council Member items,” Butcher said Lee County is worried the Town has yet to make its decision on street lights, especially following their Metropolitan Planning Organization’s (MPO) consultant report. “They grabbed me and asked what is going on and why aren’t we doing something. They would like to close out the contract, as they spent over $80,000 with that guy, so when will we hear that review again?” The Town Manager hopes to have the parties return before Council in February. Butcher added that the Florida Fish & Wildlife Conservation Commission “does not have a solution and hopes someone else comes up with a concrete answer.” Hosafros found the MPO consultant’s report “lackluster and less than helpful. It did not even talk about crosswalk safety lighting, so it was pretty useless.”

Cereceda stated that, to her, “traffic this season is bad; I don’t remember it being so bad. Can we get Captain (Matthew) Herterick of the Lee County Sheriff’s Office in here so we are all on the same page, in that it is the deputies’ jobs to move cars and not people. Does anyone else share my frustration?” “I do,” replied Butcher. “I have personally gone and watched the traffic deputies,” added Hosafros. “They will stop traffic so one person can cross the street.” The Town Manager will invite Captain Herterick to an upcoming meeting to address this with Council. Cereceda suggested that he “come to the site and stay a day and get his own impressions,” with Hosafros adding, “he needs to come incognito!”

Cereceda expressed her frustration with the low turnout at the recent Town Branding Workshop at the Bay Oaks Recreational Center, calling it “a wasted opportunity.” The Town Manager stated that “Redevelopment Management Associates will appear before Council in February to roll out of their initial concepts and ideas.” Finally, Cereceda inquired about the ongoing process to hire a Town Public Information Officer, with the Town Manager replying that interviews are ongoing. Hosafros vocalized her concern that the person may not be on the job in time to disseminate accurate information to Town voters for the two March 17 ballot referendum issues, and suggested the Town Manager assign that to a current employee “before it is too late!” Council adjourned at 1:09 p.m.; its next Meeting is Monday, February 3, with the Management & Planning Session on Thursday, February 6, each at 9 a.m.