Lee County rule change would aid Upper Captiva landowner's plan for million dollar house

A change to the Lee County Land Development Code that would benefit the owner of a planned million dollar home on Upper Captiva is marching toward a decision by county commissioners.

A building permit application submitted for 530 Gulf Lane on North Captiva Island was rejected last month because the proposed location of the septic system is on the sea side of the county coastal construction line.

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Construction is prohibited outside that line, which is called "imaginary" by Community Development Director David Loveland.

Changing the rules would remove the sole reason for denial of the permit by wiping it from the county code.

County planning staffers say they're just trying to clean things up, but admit that the denial of the building permit "triggered" a review that led to the proposal.

"While the timing of this amendment was was somewhat prompted by this permit situation, the bigger picture is that we have a prohibition in our code for a type of development that we don’t specifically regulate," a Department of Community Development staffer explained at a public meeting this month.

“We don’t inspect them, we don’t (approve) them, so we feel it is appropriate to leave this language relative to the location of septic systems to the (Department of Environmental Protection) and the Florida health department." the staffer said.

Fort Myers attorney Brian Hoops criticized that logic, comparing it to the county's authority to decide where buildings can be constructed, even though the state writes the standards for building construction.

"We look to the building code for tolerances and how many screws you need," he said. "The county can regulate where you can build that house, even if it's constructed properly."

Hoops said that the county's coastal construction line is an absolute prohibition on building seaward of the line

The Fort Myers lawyerrepresenting the property owner denied his client sought to get the code changed as an end-around of the building code denial.

"We are not responsible for the proposed legislation," said attorney Matthew Uhle. "However, there are plenty of good reasons for the county to approve it, and they would be wise to do so."

The property owner is 530 North LLC. According to state corporation documents, its organization documents were filed by Diane Jarmoszuk of Captiva.

With her husband, Nicholas, a physician, Jarmoszuk has operated several businesses in the county, including an extensive Pine Island palm tree farm.

Applications to build a house on the site have been filed as far back as 1994.

In 2003, Hearing Examiner Salvatore Territo approved construction of a house cantilevered over the coastal construction control line. His decision allowed a reduced setback from Gulf Lane, a private road in the Captiva Palma subdivision.

Uhle has filed an appeal of the building permit denial with the county hearing examiner.

"The denial of the permit was clearly illegal," Uhle said. "The property has a variance which clearly permits a septic tank to be located seaward of the (coastal construction line) with state approval."

In the 2003 decision, Territo said he worded his findings "to allow the septic system to be located seaward of the county coastal construction line" if the state approved the system.

Territo noted that "the basis of the opposition seemed to be the interference with residents view of the Gulf of Mexico from their residences."

One leader of the opposition to allowing the house to be built, Milwaukee attorney Steven Huff, has been fighting attempts to build on the property since he bought his house across the street in 2003.

Over the years, he has filed multiple lawsuits over the land, including one against the people he bought his house from, claiming he was promised that the view of the Gulf could never be restricted.

Huff said that relying on state regulators puts islanders at a disadvantage because the state and county have different authority.

"The county's line is a line of prohibition, nothing is to be built in front of that line," Huff said. "The state line is a regulatory line, where you have to get a permit."

A Lee County spokeswoman said managers involved in the request to change the code were not available Friday.

Community Development Director Loveland told an advisory committee last week that the county does not regulate septic tanks "in an way, shape or form."

A News-Press review of the code finds various provisions regulating the placement and operation of septic tanks. One makes it an ordinance violation to build a septic tank and water well too close together. Others set different rules for placing septic tanks near sewer lines in different areas.

The Sanibel Captiva Conservation Foundation has joined the campaign against the proposed ordinance change, according to Rae Ann Wessel, the group's natural resource policy director.

The foundation claims that changing the ordinance means the owners of the home seeking the septic tank did not have to give notice to the neighbors.

"The normal process would have been to apply for a variance in which case adjacent property owners would have been notified," the group said.

Two panels have considered the proposal to end the county's power to limit installing septic tanks near the Gulf. A land code advisory panel recommended approval while a regulatory oversight committee unanimously recommended rejection.

On Nov. 27, third committee, the Local Planning Agency, will be asked to consider whether whether the change is consistent with the county land-use plan.