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06/26/2014 at 3:46pm

House on PalermoTown Settles With Orlandini for $250K
Five Palermo Properties Okay
for Development

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 inches.

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 neighborhood.”

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 claim.

The short notice of the meeting also concerned Stockton.

"I am highly dissatisfied with how we scheduled this meeting. It was done in haste and I don’t approve of that.”

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 it.”

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 "can.”

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 that.”

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 agreement.

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 against.

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 clarification.

"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 also.

"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.”

Missy Layfield