A building dispute relating to permitted building development setbacks and heights at five properties on Palermo Circle has reached closure.
The Fort Myers Beach Town Council approved 3-2 the second draft settlement document in a case between developer Joe Orlandini and the Town of Fort Myers Beach. The final action, which includes
proper signatures and clarifications/modifications, took place during a second special meeting Thursday evening.
This is a profile picture of the 301 Palermo structures that was made public record prior to the settlement agreement.
Questions on the settlement plans sprung after the first special meeting caused "misunderstanding" on Friday, June 20.
The main focus of the legal agreement centered on permitting of a principal structure (house) and accessory structure (elevated pool) at 301 Palermo and a "view corridor" issue that angered neighbors -particularly the dimensions of the new proposed balcony not lining up with the upper balcony that currently existed. Town Attorney Derek Rooney stated the new plans show the second floor balcony will be six feet wide on the canal side and eight feet wide on the bay side, while the upper balcony will be five feet wide all around.
Vice Mayor Dan Andre and Councilman Alan Mandel both called the agreement a "compromise" and approved the settlement, while Councilwoman Rexanne Hosafros, the third to approve, did not offer comment. Mayor Anita Cereceda, who was allowed to attend by way of "skyping" from Spain, and Councilwoman Summer Stockton dissented.
"As far as precedents go, this was considered a mistake of law," said Andre, who ran the meeting in the mayor's physical absence. "The definition of compromise, according to Webster's New World Dictionary, is a settlement in which each side gives up some demands or makes concessions."
While Rooney called the balcony plans a misunderstanding, Orlandini, after the meeting was over, said there was a "miscommunication" between Cereceda and him during a verbal exchange at the first meeting. He stated he was checking his cell phone at the time Cereceda asked him about both balcony dimensions being the same size and he misspoke and said 'yes' although he did not actually know the full extent of the question.
Conditions of the settlement include the Town paying the plaintiffs $250,000, which records say will help pay for the demolition of the currently existing deck at 301 Palermo to aid in resolving the "view corridor" issue. It essentially removes the "stop work" order in effect to allow the completion of the home under construction, including all variations. The payment will also "constitute settlement of and full payment for all plaintiffs' damages, attorneys' fees or costs against the Town," the records say.
Conditions also allows properties at 221, 263, 455 and 551 Palermo to be entitled to the construction of a single-family home and accessory structures, but they must be constructed with at least a 25-foot setback and to a height less than 42 inches.
The settlement agreement also has a clause that states there is no admission of liability and a line that reads "...the Town specifically denies any such liability to Plaintiffs."
Cereceda voiced that she was not comfortable with the settlement allowing the lower balcony at 301 Palermo to encroach any further into the setback than the other balcony did.
"I believe that the Town has gone through extraordinary efforts to aid Mr. Orlandini in this resolution," she said. "I have been disappointed how it has failed to be reciprocated towards us. I understand the anxieties of the neighbors very clearly, and I am sorry for that. I cannot support the motion."
Stockton also believed there was consensus from all involved that the balconies would match in dimensions once the final modifications came out. She called the profile picture of the 301 Palermo structures "sloppy" as well as the apparent change in signature names from the first draft to the second. She also wanted the settlement agreement payoff reduced.
"I cannot approve whatsoever for a couple of reasons," she said. "This is very sloppy."
Mandel said he wanted to end this settlement case to move forward with other issues that had been "sidelined" prior to this issue.
"By not having to go forward with potentially a much longer legal battle and maybe cost the taxpayers (more than) $250,000, this in my mind is the best least cost alternative," he said.
Brian Jones, who resides across the canal from 301 Palermo at 266 Primo Dr., expressed neighbors' "fundamental rights have and will continue to be violated" and threatened legal action based on 1) invasion of privacy; 2) loss of view; 3) loss of property values; and 4) emotional distress.
Fellow Primo Drive resident Gayle Manor mentioned the balcony dimensions not being proportional as anticipated through modifications to the document and that more lawsuits could be expected if the agreement was approved.
"If 301 (Palermo) was brought into 100 percent compliance, we wouldn't be here and this would be over," she said.
"This is not a construction error, it's a permit error," added Primo Drive resident Tracey Gore. "This is not a minor error. This is a major error."
Beach resident Joe Stockton called the matter a monetary issue and a moral issue. He stated the Town was taken advantage of.
"The greatest hurt is the affect it is having upon the Town's people," he said. "It is the responsibility of this Town to first look towards the Town people and consider that. That is done by upholding the actual code that people live by in this town that they feel protected from investors, builders, realtors or any other businessman that would take advantage of a defect in the judgement of this Town. That is what happened."
Beach resident Jay Light thought it best to settle at this time.
"The reality is the Town government screwed up big time. We are all going to have to pay for it," he said. "I believe the time to do that is now -accept the pain and move on."