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Repeal Section 86-43

By Staff | Mar 18, 2009

To the editor,

On March 11, I attended the annual meeting of Shell Harbor Property Owners Association. At that meeting, Eric Pfeifer, Realtor, presented statistics as to sales and prices for single-family properties on Sanibel for the last eight years. People, the bloom is off the roses.

While this trend shows no sign of abating, what are our fellow citizens doing to help the situation? The Planning Commission, at the direction of a past City Council, is currently in the process of attempting to make Section 86-43 of the Land Development Code more understandable. Unfortunately, most land owners don’t know it exists, let alone what it says.

(For the uninformed, here it is: “Within any zone, taking into consideration applicable flood regulations and other laws, no structure shall be constructed or altered, in any manner, so as to interrupt the rhythm of existing structures in the established neighborhood, or in any manner which would be inharmonious with the general atmosphere and character of the established neighborhood; or, if there is no established neighborhood, the city as a whole.”)

This is the wording that stopped the Mimms’ house on the Gulf. Note its possible use is not restricted to big houses. It is the basis for attempting to dictate the architectural design for any new, remodeled, or rebuilt single family structure. The fact that it calls for uniformity ignores our Vision Statement which requires the maintenance of Sanibel’s cultural, social, ecological and economic diversity. Should we, therefore, confine each neighborhood to an architectural lookalike, same economic status area? Referring again to our Vision Statement, under the heading of Uniqueness: “All forms of development and redevelopment will preserve the community’s unique small-town identity.”

I grew up in a small town where each street had a variety of house sizes, and the banker lived next door to the school teacher. Section 86-43, as identified, sure as hell won’t produce anything resembling a small town. Leavittown, maybe. If you want conformity, look no further than Long Island. Whoops – wrong. Even it now has variety, not conformity.

Sanibel can really be unique if we can maintain our all-must-be-equal in housing. If we work at it, maybe we can demand all of our incomes be the same. Does that ring a bell to anyone?

My practical objection to Section 86-43 has been stated. However, my major concern is a legal matter. There are planned communities all over the nation. in such communities, and prior to any actual individual purchases, deed restrictions are imposed and made of record. These can include everything from soup to nuts, including complete architectural features, colors and size. Every purchaser, upon receiving title insurance, will be given a detailed description of these restrictions on his property. His failure to comply will promptly be corrected by the judiciary.

The enforcement of Sanibel’s Section 86-43 presents an entirely different situation. Its provisions have not been made a matter of public record, and any title research required for transfer of deeds would not reveal its dubious provisions.

So why is this a problem for any Sanibel land owner? Assume you sell your vacant lot and fail to divulge the restrictions outlined in Section 86-43. In any normal situation, the buyer prepares his plans, applies for a construction permit and begins construction. Not on Sanibel! Woe and behold, he can’t build the house of his dreams (sound familiar?). In the interim, land prices have dropped, he has suffered a loss. How does he recoup his loss? Does he sue the seller, or does he sue the city? Either choice is a loser because of the time and money that would be lost. Is this the reputation that Sanibel wants, and is it prepared to spend the monies involved if it encounters someone with the time and money to pursue a winning action? If I were younger and hit the lottery, I’d do it! The same result could occur if one sold an existing house and it was destroyed through fire or hurricane, and the buyer discovered he could not rebuild the type of home he desired because of its non-conformity with the neighborhood.

I do not know whether or not the enforceability of Section 86-43 has ever been asked of the City Attorney. If not, would it not be appropriate for the City Council to do so. If he has done so, it would be helpful to release his opinion. I assume in either situation his opinion would be buttressed by appropriate citations to support his opinion.

I suggest any opinion cannot be complete without reviewing the Due Process clause of the 14th Amendment, which provides no state shall “deprive any person of life, liberty or property without due process of law.” Doesn’t logic dictate the conclusion of no proper notice/no due process.

While the Planning Commission is currently considering amendments to Section 86-43, let’s face it: you an put lipstick on a pig, but it remains a pig.

The start of this commentary was to question what is being done to enhance the marketability of Sanibel properties in a difficult market. I propose a major step would be the repeal of Section 86-43.

Finally, if Sanibel property owners aren’t interested in protecting your property, the minority who want conformity and their idea of equality will prevail. Our forefathers fought for these rights; the least we can do is make our voices known.

Dale Armstrong