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A freeze on the fine print

Town Council considers moratorium for residential building with LDC “glitch.”

February 28, 2018
Jessica Salmond - News Editor ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

A peculiar Land Development Code rule may be going under the town's microscope.

Currently in the LDC, there's a provision for one zoning district that changes the density calculation for residential dwelling units on lots smaller than 15,000 square feet along Estero Boulevard, roughly from Junkanoo's to Connecticut Street. These lots are allowed to use part of the street right of way within its density calculation, therefor allowing those properties to have a higher allowed density. Also within this district, the code allows density calculations to be rounded up. For example, if a calculation comes out to 1.5 dwelling units for the parcel, the code allows that property to round up to two.

"It's there in the code and people are using it," said Council Member Anita Cereceda.

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The single-family home at 3552 Estero Boulevard, which dates back to 1942 with the Lee County Property Appraiser, is dwarfed by its new neighbor under construction.

It's evident the rule is in play: there are several new homes under construction right now which are clearly bigger than their predecessors. The market-trend style of building larger homes has been creeping up from Bonita Beach into Fort Myers Beach and has even reached San Carlos Island.

The town's attorneys have drafted a moratorium ordinance to examine the quirky density calculation and allow the town council to opine on its place in the LDC. If passed it would halt any new applications using that calculation; however, it would not stop any applications that are already received with the town.

The ordinance was passed to second hearing in a 3 to 2 vote, with Bruce Butcher and Anita Cereceda voting nay. It must go before council for a second and final reading before adoption.

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Blast from the past

It's not the first time building on the beach has changed shapes.

Ann Alsop and Linda Meeder, volunteers of the Estero Island Historic Society, reminisced about another time the beach went through change.

Pre-condominium craze, the island was mostly dotted with smaller beach cottages. Some of theses 30's and 40s era cottages still survive.

In 1959, The Privateer, a three-story apartment building, was built. Soon, the beach gave way to taller and grander condominiums.

According to the Society's records, Leonardo Arms was the first, its seven stories built in 1970.

Then came Ocean Harbour and Bay Beach. The county was in charge of issuing the permits - and buildings got taller.

"Fort Myers Beach was always the red-headed stepchild of the county's regulation," Meeder said. "It was the wild, wild west down here."

What people most opposed, Alsop remembers, were tall condos on the bayside. They weren't supposed to be any taller than four stories, but then Bay Beach was built at seven stories.

"That got people upset. People really screamed and hollered about that," she said. "They were already putting them on the Gulf, enough was enough."

The residents at the time also began to be unhappy with the interval, seasonal ownership of the condos. It made the beach feel less residential and more like a hotel at the time.

"I didn't like that," Alsop said. "I didn't feel it was right."

Alsop worked for C.I. Harby, one of the island's first real estate agencies, for 18 years and for 22 years for Century 21 TriPower Realty. She's been a business icon on the beach for some time, and was called "a walking encyclopedia of the area rental industry" on Century 21 TriPower's website when she was there.

Change is inevitable, and Alsop seems to accept that the big houses are the new norm - as well as rising rental prices and home value.

"I told my daughter, you wouldn't believe the difference in how the beach looks now," Alsop said. "I don't think they can do anything about these buildings that started going up. When I was working, $1,500 was outrageous to charge for rent. But these new buildings, you'd have to double that to rent them out."

Discussion of a moratorium arose at a council planning session recently, and Cereceda said she was surprised at the rapid turn-around from discussion to draft ordinance and because the moratorium had not gone before the Local Planning Agency at all.

"It should have gone to the LPA," she said. "All of the sudden here comes a moratorium. It's bad form. People should be afraid of how this happened."

It's not the first time changes to the LDC have been discussed, but it is the first time action has come about so quickly in the last two years.

In a planning session on Feb. 21, 2017, the then-council expressed its concern that the island character was changing.

Because of Federal Emergency Management Agency (FEMA) regulations, any new home must be elevated to a certain point, depending on what flood zone it's in. Much of the rest of the regulation on residential development is up to the town's code to crack down on.

During that meeting, the council discussed issues like the 7.5 foot side setbacks and accessory structures, but former Council Member Rexann Hosafros and Cereceda did not have the support to take action to change the code. At that time, Cereceda wanted to discuss how changes to the setbacks might improve the shrinking view corridor.

Now Vice-Mayor Tracey Gore, Council member Joanne Shamp and Mayor Dennis Boback did not support investigating any change. At that time, Shamp said it was a property owner's right to tear down and rebuild.

In October 2016, former Vice Mayor Summer Stockton likened developers to vultures, and asked how it was possible for so many homes to be being built so much bigger if the codes had not changed.

But at the Feb. 20, 2018 meeting, the potential answer to that question was contemplated: the density calculation and code interpretation.

Gore said some staff have allowed two units on a property, where others in the past might only have allowed one under one roof. She wondered if it would be more of a council interpretation than a code issue - she said she didn't believe the code allowed someone to have two units. Cereceda said therein lies the problem: "it doesn't say you can't."

"Our staff in the past has been flexible on this," Shamp said. "They've made rulings off and on in different ways, and I think it's important that we define what the code certainly says."

Boback said he believed the ambiguity was allowing builders to gain an advantage in building, and a moratorium would allow time for the LPA to look at it and discuss the issue and develop a change for the code, if deemed necessary.

"I think it will get well, well vetted between now and the time, should we decide to adopt any kind of ordinance to correct this issue," he said. "I think it gives plenty of time for public input, plenty of time for the LPA, and plenty of time for council to weigh in on it."

Cereceda said she doesn't oppose examining this density quirk, but she would rather do a comprehensive comb through the LDC to find some more of its "glitches" - as well as rely on the LPA to propose and vet changes, too. She also wanted to call the examination a "zoning in progress," rather than a moratorium. Zoning in progress would alert the public the council was considering changes that could impact the decisions a property owner might make, therefore protecting the town from a Burt-Harris Act claim on property rights.

"If I were making my top 10 list of issues that I believe the code is failing us on, this would be one of them," Cereceda said, after Gore asked her if she would want to look at it. "But it wouldn't be the only one. Since we agreed we were going to look at that, we should do it comprehensively and not nickel and dime ourselves."

Gore asked Community Development Director Jason Green if he believed the specific issue of the density calculation for the residential zoning district in question was important enough to be addressed as soon as possible - he said yes.

"There are a lot of things in the code right now, people say, 'why is the town allowing all these mcmansions?' Because our code allows for it," Cereceda said. "The changing nature of Fort Myers Beach is far more significant as you drive down Estero Boulevard than the Torgerson project. The small town character will be erased in the next years, and this council is not wanting to address the LDC."



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