Council Approves Two Controversial Petitions

“In my opinion, it’s the least egregious thing we can do,” was the comment from Marco Island City Councilor Palumbo when calling for a vote on the variance on the property adjacent to the Marco Island Cemetery. The property at 588 Bald Eagle Drive, owned by VO Capital LLC (Gary Van Cleef, Anthony J. Oliverio), had requested a reduction in the setback from 15 feet to three feet. 

After Mary Holden, City Planning Manager, moved the request forward and made her introduction, Councilor Brechnitz immediately cut to the heart of the issue before council. “In an issue such as this, am I not correct that the petitioner must demonstrate a hardship,” said Brechnitz. “Can you identify what the petitioner’s hardship is in this case?” Holden read directly from staff paperwork, “Not taking into consideration monetary, it would appear a literal interpretation would not work (for) unnecessary or undue hardship.”

Later in the presentation, Andres Boral from Boral Engineering, representative for the applicant said that the hardship “requires a minimum area for the building so that the project is feasible and without having this size building and the required parking we would have to go to a second story building,” which would be more costly. “For that reason, we are basically needing to encroach in the buffer.”

Applicant Anthony Oliverio pointed out that the conversation was on the landscape buffer and not setback noting that the cemetery is zoned residential single-family when most cemeteries are zoned commercial. This makes it a single-family to commercial zoning issue instead of a commercial to commercial zoning issue, thus creating hardship. Councilor Brechnitz responded, “Inconveniencing your business plan isn’t a hardship.”

Councilor Palumbo pointed out that the property is actually zoned for a 75-foot building against the current one-story building being proposed. He also pointed out that the business before council was approving the setback and not the project itself. “We don’t have the power to deny the project,” he said. Palumbo also talks about the initial planning board meeting where the applicant was agreeable to do away with the 12-foot setback, but it was the planning board that wanted it included.

Councilor Rola inquired why the petitioner would require a second lane of traffic. Holden responded it was a pass-through lane so cars in the drive through lane could get out of it and also to allow emergency vehicles to get to that side of the building. “Is it a requirement?” Rola asked about the drive-through and pass-through lanes. Holden responded that it was not a code requirement.

Councilor Blonna reasoned that the pass-through lane itself was a type of setback and is creating distance. 

During public comments, former Councilor Howard Reed came forward with a number of pages from the city’s Land Development Codes, which he said shows the arguments used by city staff were in direct conflict with the accuracy of those codes.

After a two-hour debate, Councilor Palumbo moved to approve the variance as brought forward. Councilor Irwin seconded that motion. Only Councilors Brechnitz and Rola opposed.

When asked for feedback on the decision, New Life Community Church Pastor Thomas McCulley New Life Community Church sent this response:

“I thank God that He answered my prayers that everyone who had something to say was able to clearly communicate what was on their heart and mind. I believe everyone listened and understood, whether in agreement or opposition.

Moving forward, I thank God for His promises that He “…causes all things to work together for good to those who love God, to those who are called according to His purpose.”  (Romans 8:28)

I was disappointed about last night, but I am looking forward to tomorrow and all the years to come as the corner lot is beautified and productive. We will learn to deal with the inevitable noise and distraction.”

The next issue before council was a request to amend a land development code for the C3 overlay district from 317 North Collier to 207 North Collier. Holden’s introduction noted that out of the six overlay districts in the city, four already allow for mixed-use. Holden thinks it was a “scribe error” when it was taken out in the 2006 update. Density is not being increased by this amendment. “This area would have to comply with the density table as outlined in our comprehensive plan,” said Holden.

Councilor Brechnitz asked how many living units the developer envisions are going to be in that tract. Holden said that isn’t calculated as this is just a land development amendment and it is site-specific, depending on the size of the lot. It was also pointed out that the tract involves 11 lots with various owners. “I’m talking about the potential,” said Brechnitz. “If everybody built living units to the full extent they could build them, how many units are we talking about in that area?”

Attorney Zach Lombardo, representative for Oliverio Investment put forth an estimate of about 40 units for the entire tract. Lombardo also points out that density comes from the comprehensive plan and not the land development code. “The comprehensive plan allows for the density even though the land development code does not,” he said. By Florida statute, a land code amendment must be consistent with the comprehensive plan that allows for the density.

 “Whoever was monitoring the comprehensive plan wasn’t paying attention,” said Councilor Rola.

Lombardo showed that the density for this district was never removed or changed from the comprehensive plan in the most recent amendment. Data showed that density has been removed by previous boards before – just not in this specific district.

Councilor Rola points out that at the 50-foot height, a potential four-story building could be constructed with those “looking down over” the residences behind it. Holden points out that the land development code, whether it is mixed-use or not, allows for a 50-foot high building in the C3 district. No conditional uses – it is standard.

Councilor Brechnitz states he was going to vote no but “it was our fault we didn’t take the density out in 2021.” 

Lisa Foster, the only public speaker on this issue, noted that developers are able to charge full market rent on any units and asked whether this was just a “short-term rental Trojan horse.”

The motion to approve carried 6-1 with Councilor Rola the nay vote.