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‘Rhythm and harmony’ at stake in Land Code amendment discussion

By Staff | Jan 28, 2009

It’s evident that Sanibel residents are very protective of their Land Development Code. Just the mere mention of potential changes has the ability to pack the Sanibel City Council Chambers like few other issues can.

Such was the case at Tuesday’s meeting of the Planning Commission and Land Development Code Review Committee (LDCRC), when parking spaces at City Hall were difficult to find, and at least one person in attendance had the forethought to bring his own chair. On the agenda: potential amendments to the Land Development Code, Section 86-43, regulating the appearance, size and mass of structures.

The agenda item was continued from a Sept. 23, 2008 meeting of the LDCRC to allow for the return of seasonal-resident property owners, so their opinions on the matter could be heard.

Discussion concerning potential amendments to Section 86-43 was sparked by the year-long battle over home plans submitted by now-legendary Chatueax Sur Mer property owner David Mimms. Future neighbors, as well as Planning Commissioners, voiced opposition to just about everything in the home’s planned design – including its size, style, pool, landscape and other odds and ends. Within days of receiving approval for a set of heavily designed home plans, Mimms shocked the community when he listed his property for sale.

“Imagine what that would be like, living there,” Mimms said in a telephone interview at the time.

Mimms blamed the ambiguous language of 86-43 for his troubles with future neighbors as well as Planning Commissioners.

“There was no definition of what rhythm and harmony are supposed to be, so it became whatever was in the eye of the beholder,” he added.

The point was not lost on Planning Commissioners, who began addressing the difficulties presented by the ordinance’s lack of clear direction before Mimms’ final design plans were approved in October.

At Tuesday’s meeting, Planning Department Director Robert Duffy presented the committee with a summary of potential amendments that had been discussed in previous meetings, complete with alternate revisions based on Committee discussion and public comment that took place at the Sept. 28 meeting.

Among the preliminary potential amendments is the addition of a statement of purpose and objectives, the identification of a “trigger” for in-depth review of residential design plans by the Planning Commission, and the establishment of guidelines to assist potential property owners, home builders and realtors in the development of home plans.

Discussion among council members centered to a great extent around the legality of making changes to any section of the Land Development Code that had the potential to affect property values. Committee Chairman Michael Valiquette expressed great concern over this point, asking City Attorney Kenneth Cuyler to remain in attendance at the meeting so his opinion on the matter could be solicited.

“We need to know the legal aspects of can we tell homeowners what roofing material to use? What colors to paint?” asked Valiquette. “Our duty is to enforce and protect the Sanibel Plan, and protect the City against lawsuits. If we take away property owner rights or property value, could we be looking at a number of lawsuits? We need to keep those things in mind.”

Valiquette went on to say that a number of citizens are happy with the performance of Section 86-43 as it currently stands, and that it’s worked well to the benefit of the City and its residents.

“There are some who feel that if the code’s not broken, don’t fix it,” he said. He went on to ask the sense in making such changes to the Land Development Code in a city that was 95 percent built-out.

Cuyler told the Committee that in such legal proceedings against a municipality, it was generally necessary for a plaintiff to invalidate a city’s regulations before a judgment would be awarded in their favor.

“It’s almost the only thing you can do,” he explained. “Individuals are allowed to sue a municipality by showing that the municipality has placed an undue burden on a certain segment of the community with a new regulation. Lawsuits to invalidate a regulation must prove that in enacting the regulation, the municipality took all value from the property”

Cuyler also said that the questions being asked by Valiquette were very fact-specific in nature, and that he would need more information from the committee about their ultimate purposes before advising them one way or the other.

“It depends on what the final regulation is,” said Cuyler. “I’m not telling you whatever you do is fine, but I must see the finished product. I’ll talk to Mr. Duffy, and if I think you’re headed down a waste-of-time road, I’ll tell you.”

Committee member Holly Smith warned the committee against utilizing the

Lee County Property Appraiser’s records for a legitimate estimate of the square footage of existing homes for purposes of identifying the largest home in any given neighborhood.

“It’s got limited validity,” she said, expressing concern about using existing neighborhood structures as a means for setting building restrictions. “Can we compare a waterfront property with another non-waterfront property in the same neighborhood?” she asked.

Sanibel resident Maureen Valiquette expressed her concern that a number of people had attended the meeting out of fear.

“This issue is here

because of fear of McMansions,” she said. “People think if we don’t change [Section 86-43], we’ll end up with mansions like there are on Captiva. But, based on the truth, that can’t happen because we have codes, and the codes have worked.”

Valiquette went on to warn the committee against making radical changes to the Land Development Code.

“If someone owns a piece of property already, and they think they’ll be able to build a house when they retire, and then the codes change and they can’t do what they had planned for all those years, they’ll be ticked off and want to sue Sanibel,” she said. “I think diversity is good. I think the code is working.”

Local resident, Realtor and business owner Karen Bell concurred with Valiquette’s appreciation of Sanibel’s diversity and agreed that Section 86-43 had worked for the city so far, but said she also understood the need for a trigger point to refer building plans to the Planning Commission for review.

“With regard to the largest home in neighborhood, I agree with that trigger point, or double lots,” she said. “I believe things are working, and we’ve put a lot of energy into many directions we don’t need to. Maybe tweak a few things here and there, because predictability is important.”

Resident Larry Schopp urged the committee to set voluntary guidelines so that property owners would have something to go by.

“It would make it easier for builders to comply with the rhythm and harmony regulations,” he said. “I think you’re on the right track, and I’m delighted to see so much support for 86-43.”

Sanibel resident and Realtor Jack Samler commended the audience for their attention to the matter of Section 86-43 and acknowledged the tough task that the Committee had before them.

“We’ve been living with the Land Development Code since July 1976, and it’s worked well 99.5 percent of cases,” said Samler, cautioning the Committee against making it more difficult for property owners to build on their lots. “Don’t block something up like prohibition, because you can create more problems than you perceived to have existed in the first place.”

Resident Helen Copeland suggested that the Committee consider the merits of requiring the submission of architectural drawings when applying for a building permit. Copeland, who led the Chateaux Sur Mer charge against the Mimms building plans, said that it was only through sheer luck that she discovered the size of the planned home before it was approved.

“Homes built on this island need architects,” she stated, “and people need to put dimensions on their plans.”

As the meeting came to an end, Chairman Valiquette expressed his gratitude toward all who had contributed their ideas, and said he looked forward to future public involvement as the process proceeds.

“If [Section 86-43] was working properly, we wouldn’t be here talking about it,” he said. “We’re going to do it right, continue to have meetings at least once a month.”

Continued discussion on Section 86-43 of the Land Development Code is planned for the LDCRC’s next meeting, tentatively scheduled for Feb. 24. Visit www.mysanibel.com for up-to-date information on Planning Commission schedules and agendas.