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Response to Armstrong

By Staff | Mar 25, 2009

To the editor,

Dale Armstrong’s latest call for repeal of Section 86-43 of the Land Development Code in the March 19 issue of the Island Reporter gets high marks for dogged determination… but otherwise misses the mark.

First, he tells us Section 86-43 “calls for uniformity” in design. That’s not so, literally or in application. The key concepts in the ordinance are “rhythm” and “harmony.” Rhythm may be characterized as the alternation of different quantities or conditions – hardly uniformity. What about harmony? Anyone who has sung in a choir or played in an orchestra knows what harmony is. That’s where different voices or instruments sing or play different notes to create chords which form a pleasing combination of diverse elements. Again, hardly uniformity – in fact, the very antithesis of uniformity.

Section 86-43 embraces the concepts of rhythm and harmony in the context of neighborhood appearance. Even if design guidelines are adopted, as they should be, they would merely identify architectural and site planning techniques which could be used to reduce the appearance of mass which might otherwise interrupt rhythm and harmony in a neighborhood. They would not dictate style. A good example of uniformity in design would be the cookie cutter homes we see springing up in developments all around us, where the only distinguishing characteristics are the nuanced tones of the terra cotta roof tiles.

Second, he states that the provisions of Section 86-43 ” have not been made a matter of public record” Actually, they have. As a codified part of the Sanibel Land Development Code for more than 20 years, Section 86-43 is a part of the public record of this City. Moreover, it is well known to realtors and attorneys who practice locally.

Third, he would have us believe that it is the obligation of a seller of real property to apprise a potential purchaser about zoning measures such as Section 86-43 in the same way one would have to disclose a material latent defect in a structure. Purchasers of real property are on legal notice of the published zoning laws of the jurisdiction in which the property is situated. That’s why due diligence is a careful buyer’s best insurance policy. A seller of property on Sanibel is no more required to disclose the terms of Section 86-43 as he or she would be to disclose the existence of set back requirements, building height restrictions or the days of the week you may not water your lawn. Mr. Armstrong’s suggestion that there could be a denial of due process by reason of lack of notice of the law just does not hold up to thoughtful analysis.

Mr. Armstrong questions the enforceability of Section 86-43. Actually, it was enforced by the Florida Circuit Court in the 1996 case of Andrews v. City of Sanibel. That was an appeal by a property owner from an adverse determination following a quasi judicial hearing. The City’s position was affirmed by the court.

Section 86-43 represents a reasonable and appropriate exercise of zoning authority. Without it, given large enough lots, Sanibel would be powerless to prevent its established neighborhoods from being transformed in the way that parts of Captiva have been transformed by baronial mansions that make even the large surrounding homes appear puny and out of place by comparison.

Larry Schopp