Historic Preservation Board reveals convoluted information after potential violation brought to light

April 13, 2018
By Marcy Shortuse

At its monthly meeting on Wednesday, April 11, the Boca Grande Historic Preservation Board addressed confusion over the Promenade after residents received letters from code enforcement and threats of hefty fines. According to historical records, from Fourth Street to First Street the land along the seawall has been publicly owned since a deal with struck for one dollar in April of 1927.
Some homeowners have plants that have overgrown the “Promenade,” as it is called, so navigation of the path is not as easy as it once was.
Pat Ball from Ball Construction followed up on a code violation for property owned by his clients, Mr. and Mrs. Fehsenfeld. They had a case that was reviewed by the Boca Grande Historic Preservation Board (COA20145-00114) when they added a family room and elevator. They have since received a violation notice from Lee County Code Enforcement stating they built walls into the Promenade (a 16 foot right-of-way). Ball clarified that he did not build those walls and that they have existed in the Promenade for a long time. Ball stated that he was told to remove the walls where they encroach into the Promenade. In addition, he was told initially that if the matter was not taken care of in 15 days, the owners would be charged a fine of $250 per day.
Board member Becky Paterson stated she has a client who received a similar violation notice. She requested that a representative from the County attorney’s office attend the April meeting to discuss this issue.
Paterson said she initiated a phone call with Lee County Code enforcement and was told that the department had a meeting with the County attorney, and it was determined that they no longer had jurisdiction over the Promenade.
According to records obtained from the Boca Grande Historic Society, the original 1897 Gilchrist plat shows the six-block area of what is today First to Third Streets, and Gilchrist Avenue to Palm Avenue. Another land ownership document, this one from April 12, 1927, shows an indenture between the Boca Grande Corporation and Boca Grande Associates, Inc. This document reads:
“The party of the first part (Boca Grande Corporation), for and in consideration of certain good and valuable considerations and the sum of one dollar, lawful money of the United States of America, to it paid by the party of the second part (Boca Grande Associates, Inc.) … the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey unto the said party of the second part and to its successors and assigns forever, all the right, title and interest of the party of the first part in and to that certain piece or parcel of land situate, laying and being at Boca Grande, in the county of Lee … bounded northerly by a line in continuation westerly to the Gulf of Mexico of the southerly line of Fourth Street … easterly by line coinciding with the westerly line of Blocks 17, 1 and 2 and the westerly ends of Third, Second and First Streets, as shown on said map; on the south by the southerly line of First Street …”
Paragraph two: Subject also as to the walk which now extends north and south along the easterly side of said premises in front of blocks 17, 1 and 2 and said Third, Second and First Streets … to the use therof by owners of lots in Boca Grande, members of their families and guests …”
What that means is that the people of the community of Boca Grande have the right to, as the document states, “bathe and promenade,” and that “no fences or other structures of any kind shall be built …” on the walkway along the beach. It doesn’t specifically name bushes, though.
On an island which features multi-million beachfront homes, one could logically think that this agreement might have come into question a time or two. And one would be right.
In 1988 a letter between a client and his attorney (names redacted for protection of identity) addresses this very situation.
It states, “… the deed reveals that the area of land which lies between the western property lines of Blocks 17, 1 and 2 going westerly to the Gulf of Mexico was deeded to the Boca Grande Associates in April of 1927. Note that on page 2, paragraph 2 of the Deed, the subject walkway has been reserved to the use by the owners’ of lots in Boca Grande and the members of their families and their guests. As a result, the aforementioned people have a right pursuant to a valid conveyance to utilize the walkway area and additionally, even assuming that there were some way to invalidate the deed, it is my opinion that these same people have a relatively strong argument concerning use of the walkway via a prescriptive right. The end result is that there does not appear to be any legal mechanism by which you can close down the walkway area to pedestrian traffic.”
Lee County Community Development Principal Planner Anthony Rodriguez said his understanding of the matter is that since it is a private deed restriction, any dispute that arises from work that takes place within the Promenade is a civil matter between the property owners who are in dispute.
“In this case I think the County attorney’s office has made a determination that it is a civil matter, and code enforcement would likely determine there is no violation,” Rodriguez said.
Paterson said she believes the Board has a right to know the legal ramifications related to the Promenade and requested that the County’s attorney attend the next meeting.
Ball added that he called code enforcement and they told him not to worry about the letter and the fine.
He followed up with an email thanking them for the conversation and said he assumed it would never be a problem again.
Ball received an email back saying, “Don’t assume anything.”
“So it’s obviously still a problem, and I think it would be appropriate if my clients received a letter stating that the very threatening code enforcement violation was done in error,” he said.
Rodriguez said he would check with code enforcement and see that the property owners who were perceived to be in violation are notified in writing that the violation has been closed.
Lee County Planner Peter Blackwell addressed the Board on the single item on the agenda, COA2018-00021.
The applicant proposes to construct a 63-foot iron fence along the front of the subject property at 161 Gilchrist Ave. It is bounded by Gilchrist Avenue on its east side, by the Gulf of Mexico on its west side, and single family residences to the north and south ends.
The subject property is a contributing site within the Boca Grande Historic District. The house was originally built in 2000 and is described by the Lee County property appraiser as a three-bedroom, two-bath structure.
Any changes to the contributing property are required to be consistent with the Secretary of the Interior’s Standards for Rehabilitation and Land Development Code Chapter 22.
“The iron work is being custom- made to match the existing gates; therefore, the style and materials proposed conform to the location and Boca Grande community as a whole,” Blackwell said. “A portion of the existing banyan tree will need to be removed, but the applicant has stated it will only be a small portion.”
Blackwell said Lee County staff reviewed the site plan and elevations and found the project to be consistent with the Secretary of Interior’s Standards for Rehabilitation and Lee County Land Development Code, Chapter 22.
“We recommend the Board to approve the request.”
A motion was made to approve the request and it passed unanimously.
The next meeting is planned for Wednesday, May 9.