STORY TOOLS

• E-mail story
• Comments
• iPod friendly
• Printer friendly

More Local News

• Marco City Council to move forward with budget decisions
• Marco Police Chief Carr wants officers out of their cars
• Vandalism case solved: Teens arrested in connection with 25 incidents

Share and Enjoy [?]

Six weeks after a Daily News investigation detailed problems at a popular Marco Island shopping center with ties to the island’s top administrator, major issues remain unresolved.

The investigation raised concerns that developers at Marco Walk, 599 S. Collier Blvd., had failed to follow city code, provided contradictory data and received improper permits from the city.

A recently completed city review of the project expressed confidence the center would soon be in compliance without further code enforcement or Marco Island City Council action.

But other information suggests Marco Walk might still have a long way to go.

The problems at the plaza have forced City Manager Bill Moss to face questions about potential conflicts of interest. Moss is the father-in-law of Brien Spina, owner of Captain Brien’s restaurant, which moved into the plaza in 2005. Moss has said he hasn’t been involved in the city’s handling of the situation — he recused himself from City Council discussion on the matter — and again deferred all questions to the city’s planning staff.

"I don’t intend to get involved," he said.

In February 2005, Marco Walk received an exception or "variance" from city rules. The variance’s main purpose allowed the plaza to increase its space dedicated to restaurants over what is normally allowed. It also addressed the plaza’s available outdoor seating among other stipulations for development.

In municipal code, restaurant square footage and outdoor restaurant seating are often regulated differently than for other businesses because of a restaurant’s impact on issues such as parking intensity.

Community Development Director Steve Olmsted recently sent a nine-page memo plus multiple attachments to Moss and copied it to City Council and the city’s planning board about his department’s handling of the situation. Included in the memo is an engineering study commissioned by Marco Walk’s developer Leon Agami that details the square footage of every plaza restaurant.

The study revealed a set of square footage numbers that bears just a passing resemblance to plans submitted by the plaza and restaurants in the past. The current study showed the plaza’s restaurant space to be 420 square feet over what is allowed.

But two major discrepancies with other data could mean the real difference is nearly 1,900 square feet more than permitted, or approximately the same size as two of the plaza’s six restaurants, Rookies and Five Brothers Pizza.

The study said Konrad’s restaurant — the plaza’s largest — was 5,500 square feet. That figure is more than 500 square feet lower than any other number provided on multiple official documents from the past two years. Konrad’s has not been renovated since the variance was issued.

The biggest square footage of all is listed on the 10-year lease the restaurant’s owner, Konrad Mayerhoffer, signed in 2001. There the restaurant’s size is listed as "approximately 6,355 square feet."

When shown a copy of the engineering study, Mayerhoffer expressed concern about the size differences and how it might affect his rent.

"I will look into the matter," he said.

The second potential discrepancy concerns the restrooms at Captain Brien’s restaurant. In his memo, Olmsted contended the restrooms should not be considered part of Captain Brien’s restaurant space because the public can access the restrooms from outside the restaurant.

But state building code does not discriminate between public and non-public restrooms in a plaza and a restaurant’s bathrooms are typically included when determining restaurant space, state and Collier County officials have said. Also, two island plazas similar to Marco Walk —Marco Town Center and Shops of Marco — have no public restroom facilities. In this case counting the restrooms would add almost 600 square feet of restaurant space to Marco Walk.

Olmsted gave different answers about if his decision not to count Captain Brien’s restrooms as part of its restaurant space could be precedent setting for others on the island. In one interview, Olmsted didn’t dispute the contention that other restaurants could potentially cut a door to make their bathrooms accessible from the outside and then not have those bathrooms count as restaurant space. Theoretically, restaurants could then serve additional patrons without skirting parking restrictions.

"I suppose it’s possible," he said. "There will be questions about it and perhaps we’ll need a code amendment to address those issues."

In another interview, Olmsted said Captain Brien’s restrooms were a special circumstance because they served as a public restroom facility for Marco Walk before Captain Brien’s arrived.

"Those restrooms were designed as part of the (Marco Walk) project and designed as a public restroom facility," he said.

Aside from restaurant square footage, in May city code compliance officers had found outdoor restaurant seating at the plaza to be more than 100 seats over its prescribed limit. Since then, the plaza has reduced its outdoor seating, but not to the limit of 120 chairs.

"Following our inspection, the owner was notified of the fact that there was an excessive number of seats in the outdoor seating area," Olmsted wrote in his memo. "The owner has since reduced the number of outdoor seats to 177 and is in the process of further reducing the number to 120."

Olmsted was asked why it took a "process" to reduce outdoor seating.

"I don’t know why that hasn’t occurred," Olmsted said. "We’re giving him a chance to get in compliance before we invoke code enforcement. It’s not something that’s designed to occur in stages."

During an interview in his office at Marco Walk, Agami, the plaza’s developer, disputed previous reports about problems with his complying with city code.

"Anybody who read the paper could think that this is Mexico, not the United States, that we’re doing things lawlessly over here and that’s not the case," Agami said.

Agami declined to give specific instances where the previous report was inaccurate.

Asked about the difference between the new engineering study he commissioned and the square footage listed on the lease at Konrad’s restaurant, Agami replied that was a matter between himself and Mayerhoffer, the restaurant owner.

"It’s nothing that concerns you," Agami said.

Olmsted argued in the memo that many of the code compliance problems at the plaza were tied to restrictions on parking. Since the city issued the variance, the city loosened parking requirements for stand-alone restaurants. A shared-parking agreement with a restaurant adjacent to Marco Walk could allow the city to administratively cure problems by allowing spaces for additional restaurant square footage, Olmsted said. That might make the variance unnecessary, he added.

Olmsted did acknowledge the city erred in issuing permits for five restaurant expansions totaling nearly 5,000 square feet before required aspects of the variance — the installation of an elevator and stairway — were fulfilled. Olmsted said the city was taking steps to ensure those types of mistakes no longer occur.

"I have re-emphasized to staff the critical importance of ensuring proper implication of all applicable code requirements and conditions of approval prior to issuance of any building permits or development orders," he wrote. "We are re-examining previously established procedures and safeguards and will make administrative adjustments as necessary to further minimize the risk of permitting errors."

Olmsted is requiring Agami to submit an updated site plan for the plaza, but has not set a deadline for it to be received. Should problems persist or the parking situation improve, Olmsted said, Agami would be required to repetition City Council.