Steps have been taken to resolve a much-heated issue involving elevated swimming pools, accessory structures and related language in a Town code.
Last week, the Fort Myers Beach Town Council held an executive session with its interim town manager and attorneys from Fort Myers-based law firm Knott Ebelini Hart to go over strategy and expenses to defend litigation from developer Joe Orlandini. Attorney Beverly Grady of Roetzel & Andress has filed legal action after Council denied an appeal regarding the continued construction of five accessory elevated swimming pool structures within the property of new single-family homes on Palermo Circle on Fort Myers Beach back in mid-January.
The Town's independent legal team recommended five action steps during the session. Council then approved the following at its evening meeting hours later.
Council approved a stop work order at the 301 Palermo Circle address.
- 1) issue revised letters denying the permits based on land development codes for 455, 551, 221, 263 and 301 Palermo Circle;
- 2) retain expert witness consultant Bill Spikowski and instruct special counselor to execute retaining letter;
- 3) issue a stop work order for 301 Palermo Circle;
- 4) rescind Resolution 13-26 calling for a moratorium on elevated swimming pools; and
- 5) table Ordinance 13-10 for three months to May 19, 2014.
"We don't think there is anything wrong with our code, actually," said Beach Mayor Alan Mandel. "The attorneys are saying that the code is clear, so there is no need to send it back to (our) LPA (Local Planning Agency.) I think its a good course to follow."
A moratorium is no longer in place for permitted pools and accessory structures that are built higher than 42 inches above adjacent grade and have less than a 25-foot setback from a seawall. But, it is unclear if the stop work order is for the already-built accessory structure at the stated address or the entire building as well as if the developer will be asked to tear down the already-built accessory structure at 301 Palermo Circle.
"Until we get some clear direction from Knott Ebelini Hart, it's heard to say," said Town Community Development Director Walter Fluegel. "Council should have made the motion clearer. Is the stop work order for the accessory structure or the accessory structure and the house? (Council) needs to make an interpretation in order for us to issue a stop work order, because we have to have some basis on zoning. It's not a building violation here, it's a zoning violation."
Fluegel was not at the meeting when Council approved the action steps and has yet to read the minutes. He stated his office is working on some of the "legal nuances" of issuing a stop work order with the independent law firm. His office is also battling what to do with the lifted moratorium.
"In order to lift the moratorium and deny those permits, (Council) has to make the legal interpretation that the code as it exists today does not allow elevated pools," Fluegel said. "Staff is not going to change our interpretation that the code allows elevated pools. So, if Council wants to override our interpretation, they have to make that motion."