Town Settles With Orlandini for $250K
Five Palermo Properties Okay
At a special meeting on Friday
morning, the Town Council of Fort Myers Beach voted 4-1 to accept a
settlement agreement that they hope resolves the controversial
elevated pool setback issue.
The terms of the agreement call for
Developer Joe Orlandini to remove the existing elevated deck at 301
Palermo Circle at his cost after he obtains a demo permit from the
Town. In addition, the owners of that property and the other
properties involved in the litigation, 551, 455, 263 and 221 Palermo,
are each entitled to build a single family home and accessory
buildings on their properties, provided that no accessory structure
be built within 25 feet of the seawall if its height is over 42
For its part, the Town will pay
Orlandini and the other property owners a total of $250,000, payable
within 5 days of the demolition of the existing deck. The Town will
also remove the Stop Work Order that has been in effect for 301
Palermo since February 18, 2014 and allow completion of the building
according to plans submitted, including any Land Development Code
(LDC) deviations or variances already granted.
The settlement resolves two lawsuits
filed by Orlandini and other Palermo Circle property owners in late
January after an appeal to allow elevated pools with setbacks as
accessory structures was denied earlier in the month. The litigation
alleged violation of due process and equal protection and claimed the
elevated pool moratorium was illegal. The litigation also claimed a
violation of property rights in violation of the Bert J. Harris Act.
The terms of the settlement provide that neither side admits fault
and are each responsible for their own legal fees.
The meeting began with Town Attorney
Derek Rooney explaining that the special meeting had been noticed
properly, with 24 hours notice, as advised by the Attorney General’s
office. He then explained that the May 29th Executive Town Council
Session addressed a settlement offer made by Orlandini. Following
deliberation, Town Council created a counter offer and the settlement
offer under discussion Friday was essentially that counteroffer.
When Mayor Anita Cereceda opened the
floor to Public Comment, Primo Drive resident Tracey Gore stated that
she was not happy with the agreement.
"This has been a long road for all
of us. I don’t know why you are going to allow this house at 301 to
have all these extra non-conforming things when nobody else can do
it. And give him $250,000? I want to be clear so that everybody
understands that no council has ever encouraged these structures.
This was totally staff error and under the advice of (former Town
Attorney) Marilyn Miller…Council never allowed these structures.”
Mayor Cereceda opened with her
thoughts on the agreement.
"I personally spoke to many in the
Palermo neighborhood yesterday. I hope we are able to ease some
anxiety and come to a positive resolution -- create some closure here
and create a prohibition against it ever occurring in any other
After Alan Mandel moved to accept the
settlement, council members discussed their concerns.
Summer Stockton asked why Carl and
Kathleen Gallo were part of the agreement when they had sold their
property in March. Attorney Rooney explained that they were
plaintiffs in the original complaint and therefore must release that
The short notice of the meeting also
"I am highly dissatisfied with how
we scheduled this meeting. It was done in haste and I don’t approve
Responding, Cereceda said, "It was
very important to me and important to Fort Myers Beach that all five
of us resolve this issue…The final plan came in yesterday morning
and this was the first and only opportunity to review this with all
five (council members) present. It was the only opportunity or it
would be left until September. The judgment call was mine and I made
Stockton also took issue with the
wording of the agreement, stating that she would rather it say what
the property owners "can” do rather than what they "may” do.
Cereceda explained that "may” and
"shall” are legal terms and she thought that "may” equaled
Stockton then addressed the agreement
in general terms. "I’m not opposed to this settlement altogether.
I am opposed to some things with 301 (Palermo), especially the
quarter of a million dollars. I’m not sure what we’re buying.
"At the May 29th meeting, that was
the only thing I disagreed with,” Stockton continued. "If we’re
going to spend that much of the taxpayers’ dollars, they should be
forced to come into compliance, or else what are we buying? That’s
a heck of a lot of money and for what?”
Cereceda responded that the settlement
was a result of the Town making a mistake, explaining that Orlandini
was given a permit but was then blocked from using it.
"The town has to pay a price for
Stockton’s concern over what the
property would look like once the deck was removed, led Cereceda to
show Stockton a sketch, and explain that the remaining balcony for
the 2nd floor at 301 Palermo would look much like the 3rd floor
balcony when completed, with pilings located below that. She
specifically addressed those not present at the meeting, singling our
Gayle Manor, a Primo Drive resident located across the canal from the
301 Palermo property, assuring her that the profile of the building
would be acceptable and the view corridor opened. Drawings at the
meeting show a balcony 4-8 feet wide with support posts beneath.
Cereceda asked that an illustration of
the profile of the remaining structure be made part of the settlement
Rexann Hosafros addressed concerns
over the money involved.
"I can tell you from my experience
in the legal field that the number of dollars does not represent what
you think it does. One thing not mentioned here is future attorney
fees. Sometimes you pay a greater number of attorney fees early to
avoid larger fees later.
"It’s also my experience from my
past life in the law…if both sides are unhappy with an agreement,
it’s usually a good agreement. I believe this is the best agreement
we can have for the Town at this time.
"The Non-disparagement clause is
very important,” Hosafros emphasized. "Once this case is over, we
leave it behind us.”
The Non-disparagement clause states
that the parties of the agreement, including Town Council members,
the plaintiffs and any of their representatives agree not to make any
disparaging comments about each other to anyone, including
businesses, organizations or the media.
The motion to approve the agreement
was amended to include an illustration of the profile of the building
at 301 Palermo and require the signatures of Carl and Kathleen Gallo
be obtained. It was then approved in a 4-1 vote with Stockton voting
Cereceda closed the meeting by
addressing issues with the Land Development Code.
"For those here and those (watching)
at home, the task of the LPA (Local Planning Agency) and our staff
this summer is to work very hard to clarify our existing law. We will
work to clarify that. Everything will be as clear as water.”
When asked after the meeting about
that review of the LDC, Cereceda reiterated that she wants the Town’s
codes to be reviewed.
"We need to completely review our
codes in the context of where we are now – 20 years post
incorporation…it’s not about change, it’s about review and
"We’ll look at what’s important
to our community. It’s only natural to review our codes…and that
review will re-engage the whole town.
After the meeting Orlandini expressed
relief at the acceptance of the settlement.
"I am truly happy to be moving on
and happy that this has been resolved peacefully.”
Mayor Cereceda spoke of resolution
"This is a moment of
reconciliation—that is an important word to me—reconciliation. To
reach reconciliation, you have to come to the point of resolution and
we did that here today.”