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6 days ago, 04/17/2014 at 3:17pm

Elevated PoolsElevated 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 of 2013.

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 height".

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 immediate consideration".

"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 set.

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 ordinance.

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 investigation.”

The Council then held the first of two required public hearings on the LPA's ordinance at their meeting on December 2nd.

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 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 sooner.

"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 involved.

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