Magistrate takes under advisement four Fort Myers Beach enforcement cases tied to FEMA floodplain letter

At a Jan. 7, 2025 hearing, the Town of Fort Myers Beach presented four code enforcement cases alleging that shipping containers and similar modular units at island properties violate local floodplain rules and ASCE 24-14 after FEMA identified the town's permitting system as allowing temporary, noncompliant structures.

The cases stem from a July 19, 2024 FEMA letter and follow-up correspondence that directed the town to provide a plan to remove or bring noncompliant structures into compliance. The town asked the special magistrate to find violations of Fort Myers Beach land development code sections 6-501 and 6-525 and ASCE 24-14, set compliance dates, and authorize fines and abatement if owners did not comply.

Why it matters: FEMA told the town its post-Ian permitting allowed temporary structures in the coastal high-hazard (VE) zone; continued noncompliance risks the town's participation in the National Flood Insurance Program and, by the town's account, public safety during storm events.

Town case and evidence

Officer Thomas Yazzo, the town's code compliance officer and compliance and security manager, testified on each file and introduced photographs and notices of violation. "On September 19, 2024, I observed a shipping container on the subject property, which I determined to be a noncompliant structure," Yazzo told the magistrate while identifying the properties and evidence submitted with the hearing packet. Floodplain manager Carl Thomas repeatedly testified that the units were not elevated, not anchored and lacked flood openings or breakaway walls the town says are required under ASCE 24-14.

"In my opinion, similar displacement is possible with noncompliant structures," Carl Thomas testified, citing a photograph the town says shows a displaced container after a recent storm.

What the town asked the magistrate to order

For each property the town requested: a finding of violation of sections 6-501 and 6-525 and ASCE 24-14; a compliance date to be set by the magistrate; a civil fine of $250 per day if noncompliance continued past that date; a $250 administrative fee; and authorization for the town to abate the violation and recover abatement costs as a lien if unpaid. The town proposed March 1, 2025 as a date tied to its reporting obligations to FEMA.

Respondents' defenses and testimony

Attorneys and property representatives argued the configurations are transportable and do not fit the regulatory definition of a permanent "structure" the town seeks to enforce. Respondent counsel Amy Thiebaud (identified in the hearing as representing several respondents) argued that, for these sites, "the containers do not violate the regulations adopted for the National Floodplain Insurance Program" and urged the magistrate to consider whether the units qualify as highway-ready, removable units rather than fixed structures.

Tom Houghton, manager for the lessee at one 1035 Estero Boulevard site (La Ola), testified the trailers have heavy-duty gooseneck axles and were removed before Hurricane Milton. "We took approximately 4 hours to do it, once we commenced that morning," Houghton said, describing an evacuation that moved both container trailers off-island and back after the storm. Houghton also told the magistrate his business employs roughly "21 to 25 employees," and said removal operations use medium- and heavy-duty pickup trucks with fifth-wheel hitches.

Property owners and operators stressed economic hardship and the post-Ian rebuilding context. Gordon Stojkowski, identified as the owner of 1821 Estero Boulevard property, and operator statements said the containers and trailers were installed under permits issued after Hurricane Ian and that businesses invested substantial sums and jobs depend on continued short-term operation.

Magistrate's procedural directions and deadlines

Special Magistrate John Malaney (presiding remotely) accepted testimony and exhibits but did not rule during the hearing. He repeatedly described the matters as legal as well as factual disputes and said he would reserve ruling pending additional written submissions in several cases. The magistrate gave respondents and the town targeted deadlines in at least two matters:

- For the 1035 Estero Boulevard case (KLC Surf LLC / La Ola), the magistrate permitted written memoranda and set a briefing schedule: respondents to file by Jan. 17, 2025, and the town to respond by Jan. 24, 2025; ruling to follow after review.

- In at least one other case the magistrate asked respondents to submit documentary proof (for example, whether axles are "highway-ready") and gave an end-of-week deadline for a copy of a permit in dispute; the magistrate said he would reserve decision until he had reviewed those materials.

Case-by-case status highlights

- 1035 Estero Blvd (KLC Surf LLC / La Ola): Town alleges shipping containers on trailers are noncompliant; town offered photographs and a proposed order; hearing record left open for memoranda (respondents Jan. 17; town Jan. 24).

- 1821 Estero Blvd (Estero Boulevard Corp / Sun and Fun): Respondent argued the configuration was permitted after Ian and containers are removable; operator said they were taken off-island ahead of Hurricane Milton; the town asked for evidence about axles and highway readiness.

- 88 Miramar St (trustee Patricia Smith): Town alleged two manufactured sheds were not elevated and lacked chassis; respondent attorney said one unit has been sold and will be removed within weeks and asked for time to complete removal; the town pressed for compliance tied to its FEMA reporting.

- 2815 Estero Blvd (Himmelstein/Hemelstein Associates LLC): Property manager said a permit application to elevate and anchor the containers is pending and that work to bring the site into compliance would take roughly "four to six weeks" after permit issuance.

No immediate rulings; possible remedies

The magistrate took each matter under advisement rather than entering immediate findings or fines. He said he would issue written orders after reviewing the exhibits, testimony and any additional filings. The town emphasized its goal is compliance and said it will work with property owners on compliance plans it can present to FEMA; respondents sought more time and urged the magistrate to consider the permits previously issued after Hurricane Ian and the economic impacts of immediate enforcement.

The magistrate made clear the town may seek abatement and liens if compliance is not achieved by dates the magistrate ultimately sets. He also indicated that, where respondents can demonstrate highway-ready axles and licensing or other documentation showing the units can be removed quickly, that showing could affect compliance determinations under the FEMA/NFIP framework.

What's next

The magistrate will issue orders after he reviews written memoranda and documentary evidence submitted by the parties according to the deadlines discussed in the hearing. The town said its compliance reporting to FEMA in April is driving proposed compliance dates, and several respondents said they would submit permits or other evidence to show steps toward compliance.