Fort Myers Beach Council approves food truck park over objections of neighbors
There was another group of neighbors unhappy at a public hearing in front of the Fort Myers Beach Council on Monday, pleading to councilmembers not to allow a commercial intrusion on a parcel about seven-tenths of an acre near their doorsteps.
This time the development in question was a food truck park in front of the Pelican Watch condo building, which required a Commercial Planned Development zoning change and 29 conditions from the town council for approval. The project also required deviations from the town’s setback requirements in the land development code.
The food truck park is being developed by an Indiana-based company known as Empire Holdings. Their proposal, represented by The Neighborhood Company, sailed through a hearing in front of the town council Monday despite the opposition of neighbors.
Like other public hearings in which neighbors had come out to oppose a development, councilmembers sided with the developer on Monday, giving unanimous approval to a project that neighbors worried will devalue their homes, lead to increased traffic around their properties and bring music at all hours of the day.
At least one homeowner, David Tezak, threatened to sue the town over the approvals.
Vice Mayor Jim Atterholt and Mayor Dan Allers verbally sparred over one of the conditions relating to live music, with Atterholt arguing for more restrictions on how many days and how many hours the food truck park could be allowed to have live music. Allers pushed for fewer restrictions on both live music and ambient music.
In the end, a compromise was reached which will allow live music on three days a week for four hours with a fourth day allowed for another form of amplified entertainment that would not include a live band. Ambient music, or background recorded music or radio music would be permitted from 7 a.m. to 10 p.m. Atterholt had pushed to limit the ambient music to between noon and 8 p.m. while Allers objected to any restrictions on the ambient music.
The owners of the Pelican Watch had pushed for limitations on ambient music, or recorded music (or radio music) from noon to 8 p.m.
In the end, Allers successfully pushed for an adoption of the new ordinance which will allow the owners of the property to play ambient music at all times of operation. Atterholt asked that the food truck park operators build sound protection measures inside the open-air building where performances will take place and alcohol will be served.
“These people will hear this live music even with doors shut and AC running,” Atterholt said. “Three days a week seems invasive.” Atterholt worried about the impact of the music on the quality of life for nearby homeowners.
Councilmember Karen Woodson said no drums or percussion would be allowed.
Atterholt said the developers should work to accommodate the neighbors by being respective of their concerns on the noise. “You are going to need their support for your business model,” he said.
The condo owners of the Pelican Watch, a beachfront condo property in a residential neighborhood near where the former Town Hall was located, had strenuously objected to the plans in front of their property. The original request would have placed the food truck park within seven and a half feet of the condo association’s pool.
On Monday, the developers agreed to a 15-feet buffer from the pool and agreed to plant trees and construct shade sails as part of the buffer. The developers also pledged to build a four-feet high decorative fence from Estero Boulevard to the park.
The developers had pushed for a 10 p.m. closing time to the objections of town staff who only wanted to allow the park to be open until 9 p.m. Legal counsel representing Pelican Watch condo owners, who had objected to the park itself, agreed to allow the park to stay open until 10 p.m. during the summer or daylight savings time, and only until 9 p.m. in the rest of the year. The approvals would seem to raise certain issues relating to sea turtle season, where restrictions on light near the beach is restricted after 9 p.m.
Patrick Vanasse, representing the developers as a partner in the planning consultant firm The Neighborhood Company and formerly a member of the Fort Myers Beach Local Planning Agency, pushed for the food truck park to be allowed to have live music and ambient music. Live music, he said, “might not be the primary drive of the business plan” and live music is one of the tools they may need. “If we can get them one extra tool that can help them be successful, I would say let’s please consider that,” Vanasse said. “Let’s not take that right away.”
The project had narrowly been approved by the Fort Myers Beach Local Planning Agency in a 4-3 vote.
The ordinance allows the developers to apply for six special event permits a year, which owners at the Pelican Watch had opposed.
Traffic
While the council approved the plans Monday, there were other outstanding questions remaining such as a traffic impact statement. Town planner Judith Frankel had insisted the developers provide a traffic impact statement while to date they had only agreed to a trip generator study. The planning consultants had referred to a 2008 study which they said showed less traffic, though Frankel questioned the accuracy of that study.
The town council’s approval of the plans require a traffic impact statement, though how the impact statement would affect the plans for the food truck park wasn’t clear.
Threat of lawsuit
The most strident opponent of the plans Monday, who owns property near the park at Chapel Street and Cottage Street and who threatened to sue the town over the approvals.
Tezak called the zoning change approved by the town council to be spot zoning, which he contended is illegal. He said the plans approved by the town council contradict the town’s comprehensive plan and would devalue his properties.
“This is way beyond anything that should go there,” Tezak said.
Tezak said the park would lead to more parking and traffic issues in the neighborhood. “I have to kick people out of my driveway every day,” Tezak said. “This is not what we are looking for.” The Pelican Watch condo owners were also concerned about the food truck park leading to a wave of vehicle traffic through their property, which is already a problem.
The Pelican Watch group had asked the developers to finance a security gate for their property, which both the developers declined to do – and which the council declined to endorse.
Fort Myers Beach Councilmember Scott Safford asked town counsel Nancy Stuparich if she believed the town’s rezoning of the property was spot zoning. Stuparich said that while she hadn’t researched the case law cited by Tezak, she said the rezoning did not appear to be spot zoning.
Tezak said spot zoning occurs when a zoning change confers special benefits to a single property owner that is inconsistent with comprehensive planning and doesn’t offer a public benefit.
Tezak asked the town council if they would want the food truck park next to their homes. Councilmember John King replied that he lived next to the Big Carlos Pass Bridge.
In first approving the zoning change, before approving the food truck park, Mayor Dan Allers remarked that he may have sided with Tezak and Pelican Watch if homes that were near the park were still standing after Hurricane Ian.
“Hurricane Ian has changed some things,” Allers said. “If those houses were there my mind would be different today. But those houses are not there.”
That comment irked Tezak who said that Allers was in turn saying that due to Hurricane Ian “let’s just build whatever the hell we want.”
Tezak said he was planning on rebuilding a home that his family had lived in for 35 years.
Tezak said the council was trying to fit “a round peg into a square hole,” by allowing the food truck park so close to the residential properties.
The developers had originally proposed to build the food park within seven and a half feet of the pool of the Pelican Watch. As part of a compromise ahead of Monday’s meeting, the developers agreed to make it 12 and a half feet from the pool (the land development code required a 15 feet buffer) while constructing a buffer that included shade sails and the planting of trees. In turn, they received a deviation from the land development code to have a closer setback from Estero Boulevard while constructing a fence.
The food truck park would be located on property where a restaurant once stood.
Second reading
The hearing held on Monday was the second hearing held by the council. The council is required to hold two readings for the new ordinance, a commercial planned development though the second reading on Monday included many changes from the first reading.
That led Councilmember Karen Woodson to question whether the council needed to hold an additional hearing with all of the changes. Nancy Stuparich, counsel for the town, said that while it would have been ideal for all of the changes to the language of the ordinance and its conditions to have been finalized before Monday’s meeting, it was not necessary.
“It is always better to have that in advance but sometimes that can’t happen. Things evolve,” Stuparich said.
Other neighbors upset
Tezak was just one of several neighbors visibly angry with the plans.
Sandy Spitzer, an owner at Pelican Watch for 44 years, said she would no longer be able to look forward to a weekend of a “nice breeze and quiet” because of the food truck that would be parked in front of her property and the endless traffic. “So gone is your sanctuary. You can no longer put your feet up. You no longer have quiet.”
Sally Goldberg said the food truck park would be just 10 steps from her property. “I can’t imagine anybody with a good conscience would be good with spot zoning,” Goldberg said.
Randy Briesath, president of the Pelican Watch Condo Owners Association, told the town council that the association had spent more than $10 million in repairs since Hurricane Ian and was more than $2 million in debt, and that this project would impact their property values.
Developers offer free parking for first 20 minutes
As part of their parking plan to alleviate traffic, Ken Gollander of The Neighborhood Company, said parking will be managed by a kiosk on Chapel Street with a ticket with free parking for the first 20 minutes. The cost for other time frames will be at the operator’s discretion, he said.
A longtime resident of Chapel Street said it will be more difficult to get onto Estero Boulevard from the residential properties of neighbors once the food truck park is built.
Councilmember comments
Woodson, who had expressed concern at the previous town council meeting for the proximity of the development to the Pelican Watch pool, said she was satisfy with the extension of the buffer to 12 and a half feet and the new shade sails in the plans. “If it looks anything like those pictures, it is going to be fantastic,” Woodson said.
Councilmember John King was concerned about the parking situation though he voted to support the project.
“We are failing these folks on Chapel and Cottage with enforcement. If it is currently such a problem with a food truck on the other side, we are letting those folks down and even more so if this comes to fruition,” King said.
Allers said he objected to the requirement of a security gate as asked for by the Pelican Watch condo owners. “I don’t think it should be a burden” on the developers, he said.
“It’s hard to assume they won’t be a good neighbor,” Allers said.
King suggested the town place signs to direct traffic away from Pelican Watch, or perhaps even a speed bump.
Ironically enough, it was Allers who had once proposed a food truck park across the street from the proposed site at the old town hall after Hurricane Ian.
Fort Myers Beach Observer Editor Nathan Mayberg can be reached at NMayberg@breezenewspapers.com