Elevated Pool Setbacks – A Timeline
The controversy that has become known
as 'elevated pools' began early last year in the Town's Community
Development department. Over the last year and a half, this issue has
exploded from concerns amongst staff to a full-blown community-wide
rumpus that has resulted in disgruntled neighbors hurling insults,
the loss of a Town Manager and Community Development Director, one
lawsuit filed, and a general feeling of distrust for Town Hall. And,
like most controversies that blow through small towns, a storm of
misinformation and innuendo has spread across the island like
wildfire to the point where much of the truth of what actually
happened and why has been buried under rumor and opinion. Because of
that, the Island Sand Paper - through research of public records and
our own coverage - decided to create a timeline of events so our
readers can see how this issue has actually evolved.
The controversy centers on
interpretation of the Town's Land Development Code (LDC), which was
adopted at incorporation in 1995. The LDC sets a minimum setback -
for non-Gulf front properties - of 25 feet from seawalls for
principal structures and 5 feet for accessory structures, but does
not specifically say anything about elevated pools or view corridors.
Whether or not the LDC clearly prohibits these structures is where
all the controversy lies, with some claiming that the code is clear
due to language saying 5-foot setbacks must not be enclosed on two or
more sides and others saying that - since elevation is not addressed
- the code leaves loopholes for developers to exploit.
Though there are other elevated pools
on the island, this controversy began when a building permit for a
structure that would contain an elevated pool at 561 Palermo Circle
was first applied for on December 21st, 2012. That permit was
approved administratively on January 31st, 2013. A single family home
with an elevated pool at 301 Palermo was applied for on February 15th
This prompted then-Community
Development Director Walter Fluegel to request a staff meeting with
the Town Attorney on February 28th to review staff's interpretation
of the Land Development Code. According to Town documents, that
meeting was held on February 21st, followed by another on February
28th where the definition of 'accessory structure' and the issue of
elevated pools were discussed at length. Fluegel also brought the
matter to then-Town Manager Terry Stewart. At the close of those
discussions, Attorney Marilyn Miller gave her opinion that the LDC
"allows detached elevated pools to be placed up to but not
closer than 5 feet from a seawalled body of water, regardless of its
Based on that opinion and Town staff's
inability to find any legal reason to deny it, on April 24, 2013 an
elevated pool permit was approved for 561 Palermo. Two other permits
were also approved, but only the pool at 561 would end up being
built. Town staff and Fluegel saw enough ambiguity in the code,
however, to bring it before council at their meeting in June.
The first time the matter was
discussed at Council was on June 3rd of 2013, when - according to the
minutes of that meeting - Town Attorney Marilyn Miller opined that
'if someone has an accessory structure that is not attached to the
main structure, it has a different set-back from the water body than
something attached to the structure.’
Council then had a short discussion
regarding accessory structures. When they returned for a work session
later that afternoon, Fluegel reviewed Miller's opinion from earlier
and said he was "looking into setbacks for accessory uses and
would be bringing the policy before Council to determine if a
clarification or an amendment to the LDC was necessary".
On June 14th, Fluegel sent a memo
through Stewart to Town Council, Attorney Miller, then-Zoning
Coordinator Leslee Chapman (now Dulmer) and Building Safety Services
Coordinator Ken Miller where he asked Council for "their
"Town Staff recently received
building permit applications for construction of new single-family
homes with pools along the canals on Palermo Circle,” the memo
reads. "Due to base flood elevation (BFE) requirements imposed by
FEMA, the permits have included requests for elevated swimming pools
in order to allow direct access from the elevated first habitable
floor to the pool deck. These pools have created some concern within
the neighborhood, so due to that plus the potential for more
applications for elevated pools/decks…staff needs direction.”
The memo went on to explain that the
BFE on Palermo Circle ranges anywhere from 10 to 13 feet, and that
Community Development Department staff and the Town Attorney have
reviewed and discussed this language in depth and determined that -
as long as the pool and deck are not attached to the main structure
(structurally dependent) - an elevated pool would meet the exception
allowing a five-foot setback from a seawalled canal. It was also
noted that boathouses and landscaping are allowed a 0 foot setback,
and sheds a 10-foot setback, and no language regarding view corridors
currently exists in the LDC.
"Staff recommends that Council
prepare an ordinance to modify the current code language to eliminate
any ambiguity,” the memo concluded, and listed three options for
Council to consider.
The Town Council held a workshop on
June 17th at 2pm, followed by a meeting that night at 6:30pm, but the
neither the memo nor the elevated pool issue was discussed. They then
took a break for the month of July, returning for a work session on
August 5th, when Town staff once again asked for direction.
"There are policy issues for you
as to what you expect Town staff to do in these situations,"
Stewart said at that meeting. "There are some gray areas, and
since there has been some push back from the community, this might be
a situation you want to revisit."
The Council discussed the three
options presented to them by staff, the importance of view corridors
and setback dimensions before asking staff to return to them with
more information - such as how other communities have dealt with view
corridor issues - so they could decide what, if any policy should be
The elevated pool issue was not
mentioned at a Council meeting again until a work session on October
21st, when Councilmember Dan Andre recommended that all elevated pool
permits come before Council and that no new ones receive approval.
After Stewart explained that a moratorium could not be imposed
immediately, Miller said the "issue would have to be treated as
a rezoning" and that she would verify whether or not the Town
could deny a permit with an ordinance in progress. Stewart directed
her and staff to "prepare whatever was necessary".
At their meeting that night, Attorney
Miller recommended that Council declare a 'Zoning in Progress'
resolution (Resolution 13-26) that would prohibit the pools at this
time but provide for an appeals process until an ordinance could be
crafted by the Local Planning Agency and Town Council. This was
approved and the matter sent to the LPA.
At the next Council meeting on
November 4th, Councilman Bob Raymond reported that he had met with
the developer of properties with elevated pools, who told him he was
experiencing a financial hardship and suggested that permits already
submitted be allowed to go through. Miller reminded him that the
developer could appeal as the 'Zoning in Progress' resolution passed
two weeks before allowed such appeals, after which a lengthy
discussion was held.
On November 12th, 2013, the LPA passed
an ordinance adding a height restriction to the LDC that would limit
pools and decks to the height of the crown of the adjacent roadway.
At that meeting, LPA members discussed the protection of view
corridors and Fluegel explained that the ordinance is designed as a
'stopgap' measure and that it would return to council at their next
workshop on November 18th.
The Town Council first saw the LPA's
ordinance at their November 18th workshop (note, no official action
can be taken at workshops). After hearing from a number of residents
urging them to ban the pools, Fluegel once again asked Council for a
policy interpretation, and Miller explained that the code needed to
be corrected one way or another. The issue was not discussed at their
regular meeting that night, so no action was taken on the LPA's
The controversy began to get messy
after that, when Walter Fluegel sent a memo to Stewart and Miller on
November 20th asking for an independent investigation into rumors
being circulated that he had taken bribes from Palermo Street
developer Joe Orlandini.
"Recently, I have heard rumors
and a seemingly anonymous whisper campaign regarding the elevated
pools issue on Palermo Circle," the memo reads. "The rumor
being circulated accuses me of being bribed by Mr. Orlandini in
regards to the issue of elevated pools. While I know there is no
truth to these rumors, they are still potentially injurious to my
career and to the public trust, if left unchecked."
In a November 25th memo, Town Attorney
Jim Humphrey told Stewart that he supported the hiring of an
independent attorney to look into the allegations. In that same memo,
Humphrey also recommended that the investigation be expanded to
include "a review and opinion pertaining to the permit issued for
the elevated pool structure on Palermo as well as alleged code
violations occurring on Palermo...(and) the issuance of a legal
opinion interpreting the setback requirements in the LDC, as several
citizens are asserting that the Town's staff and legal counsel have
issued erroneous interpretations of the code.”
Stewart made the request to the law
firm of Constangy, Brooks and Smith later that day. In a memo also
dated November 25th, he gave the following direction to attorney John
Dickinson and asks him to communicate
with Town Financial Officer Evelyn
Wicks regarding the investigation. The memo refers to Humphrey’s
expanded requests and directs Dickinson to contact Humphrey with any
questions regarding them.
"Please allow this communication to
document that the Town of Fort Myers Beach hereby retains the
services of your law firm to investigate alleged unlawful
compensation received by Town Community Development Director Walter
Fluegel,” the memo reads. "I will not be corresponding with you
or overseeing this project on the Town's behalf as I am the final
decider on any potential discipline that may arise out of the
The Council then held the first of two
required public hearings on the LPA's ordinance at their meeting on
During discussion, Councilman Dan
Andre said he liked the ordinance as it is written, but Councilman
Joe Kosinski and Councilwoman Jo List said they believed it should be
looked at more - especially in regards to accessory structures and
the exact height of what will be allowed. After discussing the issue
at length, they agreed to ask the same outside attorney looking into
the allegations against Fluegel to also give their "independent
interpretation of the LDC as it relates to setbacks from a seawalled
canal or seawalled natural body of water for elevated pools and
elevated decks on residential property”. They agreed to table the
ordinance and refer the matter back to the LPA until the outside
attorney's opinion could be heard.
Andre brought the issue of 'accessory
structures' up again at the Council meeting on December 16th, saying
if "corrections are needed or ambiguities need to be cleared, than
they should be fixed”.
After discussing view corridors and
height versus setback measurements, the Council agreed to hold
another workshop on the issue on January 11th, 2014.
On January 2nd, Dickinson and Attorney
Jesse Bannon delivered the outside attorney's opinion regarding the
LDC. In it they refer to the state of Florida's long-standing
tradition of ruling in favor of property owners, saying, "When the
language of a zoning regulation is ambiguous and must be interpreted,
the language should be interpreted to be the least restrictive on the
property owner...it is our opinion that the LDC permits elevated,
non-roofed swimming pools and decks to be placed up to but not closer
than 5 feet from a seawalled canal or seawalled natural body of water
provided that these are non-roofed accessory structures.”
Then-Mayor Alan Mandel presented
Dickinson's opinion to Council at their meeting on January 6th. At
that meeting, Beverly Grady, an attorney representing developer Joe
Orlandini, appealed to council to allow elevated pool permits for
five more properties on Palermo to go through.
"You have a process to amend your
code which you did not follow, so we request that this resolution
(the 'Zoning in Progress' resolution approved on 10/21, now being
referred to as a moratorium) be made null and void," she said.
Grady was countered by Michael Kayusa, an attorney who indicated that
he represented residents of Palermo and Primo Streets, and stated
that there is no ambiguity in the LDC.
During discussion, List said she
believes there are loopholes in the LDC that need fixing, and
admitted that the Council should have gotten on top of the issue
"It was not our intention, but we
did drop the ball when staff came to us in June and said this was
going to be a problem,” she said. "And no offense to Mr.
Orlandini, but the people of this Town clearly do not want these
structures on this island, so we need to fix this.”
After Stewart urged the council to
move forward with some kind of ordinance that would address the
moratorium, Council voted 3-2 (Raymond and Kosinski dissenting) to
deny Orlandini's appeal based on their view that the permit
applications did not comply with the setback requirements in the LDC.
A special workshop was then set for Friday, January 10th.
On January 7th, Dickinson and Bannon
delivered their report exonerating Fluegel from being involved in any
conspiracy with Orlandini, and named the source of the rumors to be
former Town employee Jim Carrasco. In a memo written on June 24, 2013
by Ken Miller after he told Carrasco he was terminated, Miller says
that Carrasco told him Fluegel and Orlandini conspired together to
get the pools constructed and that he, Miller, "was too stupid to
know what was happening.”
"It is assumed that Mr. Carrasco has
no evidence supporting such an allegation, nor has he presented any
such evidence to us,” Dickinson and Bannon's report reads.
At the special workshop on January
10th, Stewart again urged Council to close the loopholes in the LDC,
and offered to resign if Council thought he'd handled the matter
badly. He also recommended that they include language that defines
the importance of 'view corridors'.
After discussion, Council added 'view
corridors' to their workshop on February 3rd, and asked that the
second public hearing on the LPA's pool ordinance be held at their
next meeting on January 21, and for staff to add the language from
the 'Zoning in Progress' resolution to it.
At a special meeting held on Friday,
January 17th, Terry Stewart asked that he be terminated without
cause, effective immediately and Council agreed. He told the Sand
Paper that he decided to leave to spare his staff any more grief from
the elevated pool issue, saying neither he nor his staff had ever
advocated for elevated pools.
On Monday, January 21st, Orlandini's
attorney, Beverly Grady, filed suit against the Town. Due to the
Town's firm Fowler White possibly being called as witnesses, the firm
Knott, Ebelini and Hart was hired to defend the Town. Because of
this, at their meeting that night, Council postponed their planned
hearing on the LPA's ordinance until February 18th and no action was
taken regarding elevated pools, as all discussions would need to wait
until after Council held a closed session with the attorneys
On or about February 1st, Attorney Jim
Humphrey, left the Fowler White firm that continues to hold the Town
legal services contract and began working for the Knott, Ebelini &
Hart firm, that had just been hired to represent the Town in the
Orlandini lawsuit. He is currently representing the Town in
negotiations regarding the Orlandini lawsuit.
At the meeting on February 18th,
Council - having just met with all the attorneys involved earlier
that day - agreed to take the following actions presented to them by
Mandel: Rescind the 'Zoning in Progress' moratorium; Issue revised
letters of denial for the five properties on Palermo based on the
fact that Council's interpretation that the LDC prohibits them; issue
a 'stop work' order for 301 Palermo and table a hearing on the LPA's
ordinance until May 19th.
On March 11th, three new council
members were elected to Town Council. At their first meeting on March
18th, they elected Anita Cereceda as Mayor and Dan Andre as
Vice-Mayor. The new council held a workshop on March 28th to
prioritize which items should go on future agendas, where they agreed
to strike a discussion on 'view corridors' from the list after Andre
pointed out that Council had determined that the current language in
the LDC was sufficient. Any discussion of 'elevated pools' was also
removed pending litigation.
Community Development Director Walter
Fluegel’s employment was terminated on April 2nd. As of press time,
the lawsuit continues, and the LPA's ordinance remains slated for a
workshop in May.
Keri Hendry Weeg